CITY OF PACIFICA
COUNCIL AGENDA SUMMARY REPORT
10/14/2024
1 SUBJECT:
Consideration of a Resolution: 1) Denying Appeals of Baylands Soil Pacifica LLC and Dan Stegink, of the Planning Commission’s Effective Denial of Various Actions to Approve the Rockaway Quarry Reclamation Plan; and 2) Denying the Rezoning RZ-210-22, Development Plan DP-86-22, Specific Plan SP-179-22, Quarry Use Permit UP-71-16, Variance PV-531-22, and Tree Permit TP-1-22 (File No. 2016-001) (APN 018-150-120 and 018-150-150) CEQA:
Exempt under CEQA Guidelines Section 15270 (Denial of a project) RECOMMENDED ACTION:
Adopt a Resolution: 1) Denying the Appeals by Baylands Soil Pacifica LLC and Dan Stegink, of the Planning Commission’s Effective Denial of Various Actions to Approve the Rockaway Quarry Reclamation Plan; and 2) Denying Rezoning RZ-210-22, Development Plan DP-86-22, Specific Plan SP‐179‐22, Quarry Use Permit UP‐71‐16, Variance PV‐531‐22, and Tree Permit TP‐1‐22 (File No. 2016‐001)
STAFF CONTACT:
Kavitha Kumar, Interim Director, Community Development Department (650) 738-7341
[email protected]
INTRODUCTION:
This agenda item recommends adoption of a resolution denying two appeals of the Planning Commission’s effective denial of the Rockaway Quarry Reclamation Plan and denying the Reclamation Plan, as revised to include 874,000 cubic yards of imported fill (“Project”). The attached Resolution has been prepared as directed by the City Council.
SITE DESIGNATIONS:
General Plan: Visitor-Serving Commercial (VSC) and Conservation (C) Current Zoning: C-3X/HPD/CZ (Service Commercial with Public Vote Required to Rezone for Residential Use/Hillside Preservation District Overlay/Coastal Zone Combining District) Proposed Zoning: P-DX/HPD/CZ (Planned Development with Public Vote Required to Rezone for Residential Use/Hillside Preservation District Overlay/Coastal Zone Combining District) with Approved Development Plan
PROJECT DESCRIPTION:
The Council hears appeals de novo, namely as if hearing for the first time. The City Council considered the overall project approvals for the proposed reclamation plan, as described above, on September 23, 2024, and directed staff to prepare a resolution denying the Project with Pacifica City Council 2
October 14, 2024
associated applications and entitlements with a unanimous vote of 5-0-0.
Pursuant to the input from the Planning Commission and public comment at the March 18, 202412, Planning Commission Meeting and the May 20, 202434, Study Session, the Applicant proposed an alternative to reduce the amount of imported fill to approximately 583,000 CY, using the Reduced Fill Alternative described and analyzed in the Environmental Impact Report (EIR, Chapter 6) for the Project (“Reduced Fill Alternative”). However, the Applicant did not revise their Project application. Therefore, the application still proposed a Reclamation Plan with 874,000 cubic yards which was presented to the Planning Commission on August 19, 202456.
AUGUST 19, 2024 PLANNING COMMISSION MEETING:
On August 19, 2024, the Planning Commission held a public hearing to consider the Project, with a recommendation from staff to approve the Reduced Fill Alternative. During the public hearings with the Planning Commission, there were several concerns raised including consistency with the General Plan, the amount of imported fill, traffic, phasing of the reclamation and a future specific plan, SMARA requirements, testing, tribal cultural resources impacts, and water quality impacts. Ultimately, the Planning Commission effectively denied the application by a vote of 0-5-2 (Devine and Godwin absent) following a motion to approve the Specific Plan SP‐179‐22, Quarry Use Permit UP‐71‐16, Variance PV‐531‐22, and Tree Permit TP‐1‐22 (File No. 2016‐001); recommend approval to the City Council on Rezoning RZ‐210‐22 and Development Plan DP‐86‐22; and Certification of the Final Environmental Impact Report for a reclamation plan to reclaim the former Rockaway Quarry including construction of public access trails, drainage infrastructure, and wetland mitigation areas, on two undeveloped parcel totaling approximately 86-acres. While the Planning Commission did not vote to deny the Project, the unanimous “No” vote on the collective motion to approve with no further action from the Planning Commission is considered an effective denial.
APPEAL OF PLANNING COMMISSION EFFECTIVE DENIAL BY BAYLANDS SOIL PACIFICA, LLC (“BAYLANDS”):
On August 27, 2024, Baylands timely submitted a City of Pacifica Appeal Form, letter, and applicable fee to the City Clerk’s office to appeal the Planning Commission de facto denial of the Project. Baylands cited a number of reasons for the appeal in the appeal form and attached letter, which are summarized and addressed by staff at the September 23, 2024, City Council appeal Hearing78.
1 March 18, 2024 Planning Commission Meeting Report:
https://pacificacityca.iqm2.com/Citizens/Detail_Meeting.aspx?ID=1635 2 March 18, 2024 Planning Commission Video: https://www.youtube.com/watch?v=admme15GedU 3 May 20, 2024 Planning Commission Meeting Report:
https://pacificacityca.iqm2.com/Citizens/Detail_Meeting.aspx?ID=1639 4 May 20, 2024 Planning Commission Video: https://www.youtube.com/watch?v=WlbEFuu0NZo 5 August 19, 2024 Planning Commission Meeting Report:
https://pacificacityca.iqm2.com/Citizens/Detail_Meeting.aspx?ID=1645 6 August 19, 2024 Planning Commission Video: https://www.youtube.com/watch?v=fBfYn_XGCuE 7 September 23, 2024 City Council Meeting Report:
https://pacificacityca.iqm2.com/Citizens/Detail_Meeting.aspx?ID=1621 8 September 23, 2024 City Council Video: https://www.youtube.com/watch?v=iS6mnseMZOU Pacifica City Council 3
October 14, 2024
APPEAL OF PLANNING COMMISSION EFFECTIVE DENIAL BY DAN STEGINK (“STEGINK”):
On August 29, 2024, Stegink timely submitted a City of Pacifica Appeal Form, letter, and applicable fee to the City Clerk’s office to appeal the Planning Commission de facto denial of the Project. Stegink cited a number of reasons for the appeal in the appeal form and attached letter, which are summarized and addressed by staff at the September 23, 2024, City Council appeal Hearing78.
SEPTEMBER 23, 2024 CITY COUNCIL MEETING:
Pursuant to PMC section 9-4.3208, the Council may approve, deny or modify the Development Permits, after considering the appeal. The Council is also the final decision-maker on the proposed Rezoning and Development Plan. The City Council considered the Project and staff recommendations and determined to deny the appeals and the Project and provided staff with the basis for findings to support these denials as supported by substantial evidence in the record. Staff has memorialized these findings in the attached Resolution which findings include denial of the following Project components:
1. Rezoning and Development Plan: The findings include inconsistency with the General Plan and HPD requirements and address that the Reclamation Plan does not include the minimum amount of fill necessary to reclaim the site.
2. Specific Plan permit: The findings are based on the fact that the development plan is not approved. Therefore, the Specific Plan permit cannot be found consistent with an approved Development Plan.
3. Quarry Use permit: The findings are based on non-compliance with the General Plan, Zoning Code and SMARA findings.
4. Variance: The findings are based on the fact that the scope of the disturbance and fill and impacts of the Project do not justify the granting of a variance.
5. Tree Permit: The findings are based on the fact that no trees need to removed, as the Project is being denied.
RELATION TO CITY COUNCIL GOALS AND WORK PLAN:
The Project is not directly associated with an item on the City Council’s 2024-25 Work Plan. It is the City Council’s normal governance process to hear and determine appeals of Planning Commission actions under the Pacifica Municipal Code.
STAFF RECOMMENDATION:
Staff recommends denying the appeals filed by Baylands Soils Pacifica, LLC and Dan Stegink, and denying the Project.
ORIGINATED BY:
Community Development Department
Pacifica City Council 4
October 14, 2024
ATTACHMENT LIST:
Pacifica City Council 5
October 14, 2024
RESOLUTION NO.
ADOPT A RESOLUTION (1) DENYING APPEALS OF DAN STEGINK AND BAYLANDS SOILS PACIFICA, LLC, OF THE PLANNING COMMISSION’S EFFECTIVE DENIAL OF VARIOUS ACTIONS ON THE ROCKAWAY QUARRY RECLAMATION PLAN; AND (2) DENYING REZONING RZ-210-22, DEVELOPMENT PLAN DP-86-22, SPECIFIC PLAN SP-179- 22, QUARRY USE PERMIT UP 71-16, VARIANCE PV-531-22, AND TREE PERMIT TP-1-22 (FILE NO. 2016-001)
______________________________________________________________________________ Initiated by: Paul Heule and The Preserve @ Pacifica, LLC (“Owner”) and Baylands Soil Pacifica LLC (“Baylands”) (collectively, the “Applicant”)
WHEREAS, an application was submitted to reclaim and restore the former Rockaway Quarry as required by the Surface Mining and Reclamation Act (“SMARA”), California Public Resources Code, Section 2710 et seq., incorporated by reference in Chapter 2 of Title 9 of the Pacifica Municipal Code (“PMC”), by importing approximately 1,000,000 cubic yards of soil to restore the excavated quarry face and other areas to a pre-mining condition, establishing 1.55 acres of new seasonal wetlands and a new
0.20-acre California red-legged frog pond, constructing new unpaved recreational trails and drainage improvements throughout the site, and removing 25 protected trees, on the former Rockaway Quarry, approximately 86-acres in area, located west of State Route (SR) 1 and between Reina del Mar Avenue and Rockaway Beach Avenue (APNs 018-150-120 and 018-150-150) (“Project”); and WHEREAS, a prior reclamation plan for the Project site was previously approved by the City in 1998, and remains in effect; however, the proposed Project would alter the prior reclamation plan; and
WHEREAS, the Project site is located in the C-3X/HPD/CZ (Service Commercial with Public Vote Required to Rezone for Residential Use/Hillside Preservation District Overlay/Coastal Zone Combining District) Zoning District; and WHEREAS, the Project site would require a rezoning to the P-DX/HPD/CZ (Planned Development with Public Vote Required to Rezone for Residential Use/Hillside Preservation District Overlay/Coastal Zone Combining District) zoning district from the existing C3X/HPD/CZ zoning district as required by the Hillside Preservation District (HPD) overlay zoning district standards in PMC Section 9-4.2256, and require approval of a Development Plan to assign site-specific zoning pursuant to PMC Section 9-4.2203, both of which are legislative actions and require City Council adoption of an ordinance pursuant to state law and the PMC; and
WHEREAS, upon the Project site’s rezoning to the P-DX (Planned Development with Public Vote Required to Rezone for Residential Use) Zoning District, the Project would require approval of a specific plan prior to issuance of a grading and/or building permit to ensure consistency with the approved development plan pursuant to PMC Section 9-4.2208 et seq.; and
WHEREAS, the Project would require approval of a quarry use permit to authorize reclamation of a quarry pursuant to PMC Section 9-2.04; and WHEREAS, the Project would require a variance pursuant to PMC Section 9-4.3401 to exceed the coverage limitation for grading within the HPD overlay zoning district contained Pacifica City Council 6
October 14, 2024
in PMC Section 9-4.2257; and
WHEREAS, the Project would require approval of a tree permit to authorize removal of protected trees pursuant to PMC Section 4-12.04(a); and WHEREAS, the Project site is located within the Coastal Zone; however, the site is not within the City of Pacifica’s Certified Local Coastal Program and an application for a Coastal Development Permit must be separately approved for the Project by the California Coastal Commission (“CCC”); and
WHEREAS, henceforth, the rezoning and development plan shall collectively be referred to as the “Legislative Actions” and the specific plan permit, quarry use permit, variance, and tree permit shall collectively be referred to as the “Development Permits”; and WHEREAS, City of Pacifica Community Development Department (formerly the City of Pacifica Planning Department) is the Lead Agency for preparing the environmental review for the Project pursuant to the California Environmental Quality Act (CEQA) and for Project approval; and
WHEREAS, the City of Pacifica Planning Division issued a Notice of Preparation of a draft environmental impact report (DEIR) on September 2, 2020, for the Project, which was distributed in compliance with CEQA Guidelines Section 15082; and WHEREAS, the City prepared the Rockaway Quarry Reclamation Plan Project Draft Environmental Impact Report (State Clearinghouse No. 2020090036) for the Project in accordance with Public Resources Code Section 21000 et seq. and CEQA Guidelines Section 15000 et seq.; and
WHEREAS, on February 16, 2022, the City of Pacifica issued a Notice of Completion and Notice of Availability for the DEIR, which was distributed in compliance with CEQA Guidelines Sections 15085, 15087, and 15105 and Public Resources Code Sections 21091 and 21092; and
WHEREAS, on February 16, 2022, the City of Pacifica distributed copies of the DEIR to public agencies which have jurisdiction by law with respect to the Project and to publicly accessible repositories including the Sharp Park and Sanchez branches of the Pacifica Library and invited comments on the DEIR in compliance with CEQA Guidelines Sections 15085, 15087, and 15105 and Public Resources Code Sections 21091 and 21092; and WHEREAS, the 45-day minimum public review and comment period for the DEIR ran from February 16, 2022, through April 4, 2022; and
WHEREAS, written comments on the DEIR were collected and responses to comments (“RTC”) were considered in the revisions made to the DEIR to comprise the Final EIR (FEIR); and
WHEREAS, the Rockaway Quarry Reclamation Plan Project Final Environmental Impact Report (State Clearinghouse No. 2020090036) was made available to the public on January 13, 2023; and
WHEREAS, the FEIR identified certain potentially significant adverse environmental impacts from the Project and recommends certain mitigation measures regarding such effects; and
Pacifica City Council 7
October 14, 2024
WHEREAS, the Planning Commission of the City of Pacifica held a duly noticed public hearing on the Project on June 5, 2023; and
WHEREAS, where the planning commissioners and members of the public expressed concerns and requests for more information on the potential impacts of the Project. The comments primarily pertained to air quality and greenhouse gas (GHG) emissions, effects on biological resources, soil testing criteria of imported fill, potential water quality impacts due to erosion and stormwater runoff, and traffic concerns; and WHEREAS, in response to the comments expressed at the June 5, 2023, Planning Commission meeting, particularly those of the commissioners, the Applicant prepared a Revised Reclamation Plan (“Revised Project”). Among other revisions, the Revised Project requires a reduced amount of imported fill (874,000 cubic yards) relative to the amount required by the previously proposed Project; and
WHEREAS, the City’s CEQA consultant evaluated the Applicant’s changes and determined they do not change the analysis and conclusions in the draft and final EIRs and are anticipated to result in fewer environmental impacts than the previously proposed Project; and
WHEREAS, the City’s CEQA consultant further determined that the Revised Project does not constitute: (1) information that shows a new significant impact; (2) information that shows an increase in the severity of an impact (unless mitigation measures are identified to reduce it to acceptable levels); (3) information that identifies a feasible new alternative or mitigation measure considerably different from other analyzed alternatives or mitigation measures that would clearly lessen project impacts and the applicant declines to implement the measure; and/or (4) information that demonstrates that the Draft EIR was fundamentally flawed, basically inadequate, and conclusory in nature, thus, precluding meaningful public review and comment. Rather, any new information clarifies or amplifies the analysis in the Draft EIR. Therefore, recirculation of the Draft EIR was not warranted; and WHEREAS, the Planning Commission of the City of Pacifica held a duly noticed public hearing on the Revised Project on March 18, 2024; and
WHEREAS, the commissioners and members of the public expressed concerns regarding the Revised Project. The concerns primarily pertained to the quantity and quality of imported fill, traffic concerns including truck trips, consideration of seasonal variations in reclamations activities, and public health and environmental impacts including biological and tribal cultural resources impacts; and
WHEREAS, the Planning Commission continued the hearing to May 6, 2024, to allow the Applicant time to address the concerns expressed at the March 18, 2024, Planning Commission meeting; and
WHEREAS, the May 6, 2024 meeting was later cancelled and replaced with a Planning Commission Study Session held on May 20, 2024, upon the request of the Applicant; and
WHEREAS, at the May 20, 2024, Study Session, the Applicant proposed an alternative that would import approximately 583,000 cubic yards of soil (the “Reduced Fill Alternative”) with the option for further reductions after a specific planning process to receive input from the Planning Commission; and
Pacifica City Council 8
October 14, 2024
WHEREAS, the commissioners and members of the public reiterated concerns pertaining to quantity and quality of imported fill, soil testing, water quality, tribal cultural resources, truck trips and traffic, and sought information and clarification on the SMARA requirements and process, and the Reduced Fill Alternative and correlation with the specific plan process; and
WHEREAS, on July 2, 2024, the applicant ’s attorney submitted a letter on behalf of the Applicant specifically proposed a plan as an alternative (“July 2 Proposal”) with a maximum amount of 583,000 cubic yards of imported fill, noting that the Applicant “needs to fill [the] quarry pit and grade the site to restore wetlands and habitat as part of reclamation. It takes approximately 653,000 cubic yards of fill (583,000 cubic yards of which is imported fill) to do that even with a future effort to implement development as reclamation proceeds”; and WHEREAS, the July 2 Proposal further noted that if a “Specific Plan is approved by 2027, then the applicant/property owner will limit the amount of imported fill to a total of 400,000 cubic yards provided that sufficient fill material can be generated on site to fill the quarry so that development of future end uses contemplated in the General Plan may proceed after reclamation”;
WHEREAS, the CEQA’s consultant provided a memorandum in response to comments regarding the cultural and tribal cultural resources on the Quarry site, which provided additional discussion on the impacts and confirmed the analysis in the FEIR (“Cultural Resources Memorandum”). This Cultural Resources Memorandum does not constitute: (1) information that shows a new significant impact; (2) information that shows an increase in the severity of an impact (unless mitigation measures are identified to reduce it to acceptable levels); (3) information that identifies a feasible new alternative or mitigation measure considerably different from other analyzed alternatives or mitigation measures that would clearly lessen project impacts and the applicant declines to implement the measure; and/or (4) information that demonstrates that the Draft EIR was fundamentally flawed, basically inadequate, and conclusory in nature, thus, precluding meaningful public review and comment. Rather, any new information clarifies or amplifies the analysis in the Draft EIR.
Therefore, recirculation of the Draft EIR is not warranted; and WHEREAS, the Planning Commission of the City of Pacifica did hold a duly noticed public hearing on the Revised Project and considered the July 2 Proposal on August 19, 2024, at which time it considered all oral and documentary evidence presented, and incorporated all testimony and documents into the record by reference.
WHEREAS, the Planning Commission of the City of Pacifica made a motion to adopt a resolution to approve the Revised Project, as conditioned, but the motion failed with a vote of 0-5-2 (Devine and Godwin absent); and
WHEREAS, on August 27, 2024, Baylands Soils Pacifica, LLC (“Baylands”) filed an appeal (“Appeal 1”) of the Planning Commission’s effective denial; and WHEREAS, on August 29, 2024, Dan Stegink (“Stegink”) filed an appeal (“Appeal 2”) of the Planning Commission’s effective denial; and
WHEREAS, the City Council of the City of Pacifica did hold a duly noticed public hearing on the two appeals and Revised Project on September 23, 2024, at which time it considered all oral and documentary evidence presented, and incorporated all testimony and documents into the record by reference; and
Pacifica City Council 9
October 14, 2024
WHEREAS, after the close of the City Council hearing, the City Council continued to express concerns about the Revised Project, as conditioned, noting, among other things, the following: the fact that there is an existing reclamation plan already approved by the City, concerns about the amount and necessity of imported fill, and inconsistencies with the General Plan; and WHEREAS, after discussion and deliberation, the City Council voted 5-0 to direct staff to bring back a resolution denying the Revised Project based on the evidence in the record; and WHEREAS, as the Applicant did not amend its Project application to include the July 2 Proposal, this Resolution acts on and denies the Revised Project; however, the City Council declined to condition the Revised Project as set forth in the July 2 Proposal for the same or similar reasons as set forth in this Resolution, as well as due to the absence of clear plans, such as grading and tree plans, demonstrating how the July 2 Proposal would be implemented.
NOW, THEREFORE BE IT RESOLVED by the City Council of the City of Pacifica as follows:
A. Recitals. The above recitals are true and correct and material to this Resolution.
B. Findings. In making its findings, the City Council relied upon and hereby incorporates by reference all correspondence, staff reports, plans, oral and written comments, and all other related materials that form the basis of the record for the hearing.
C. Appeals. The City Council of the City of Pacifica does hereby deny Appeal 1 and deny Appeal 2, based on the following findings pertaining to these Appeals of the Planning Commission’s action:
1. Appeal 1 Filed By Baylands Soil Pacifica, LLC (“Baylands”).
Basis 1. The City Council should overturn the Planning Commission’s denial because it was not supported by substantial evidence.
Finding: The Planning Commission effectively denied the Development Permits. The City Council, as the appellate body, is the ultimate decision-maker and is making findings based on substantial evidence in this resolution.
Basis 2. The City Council should overturn the Planning Commission’s denial of Project because the Commission’s denial was not supported by substantial evidence.
Finding: The Planning Commission effectively denied the Development Permits. The City Council, as the appellate body, is the ultimate decision-maker and is making findings based on substantial evidence in this resolution.
Basis 3. The Planning Commissioner erroneously stated that they could not make the required findings for approving the Project but they did not adopt any findings to reject the Project Approvals.
Finding: The Planning Commission effectively denied the Development Permits. Therefore, no findings were necessary. The City Council, as the appellate body, is the ultimate decision-maker and is making findings in this resolution.
Basis 4. The Planning Commission erred and abused its discretion because the Planning Commission did not adopt any findings to deny the Project in violation of State Law.
Pacifica City Council 10 October 14, 2024
Finding: The Planning Commission effectively denied the Development Permits. Therefore, no findings were necessary. The City Council, as the appellate body, is the ultimate decision-maker and is making findings in this resolution.
Basis 5. The Planning Commission erroneously claimed that the Reclamation Plan would not mitigate environmental impacts to the maximum extent feasible.
Finding: Since the Planning Commission did not approve the project, no CEQA action was required. (CEQA Guidelines Section 15270.)
Basis 6. The Planning Commission misconstrued the Project Specific Plan Finding: There is no evidence in the record that the Planning Commission misconstrued the Specific Plan requirements.
Basis 7. The City Council should review this Appeal and reject the Planning Commission’s Decision rejecting the Project approvals.
Finding: As this appeal is heard de novo, the City Council may approve, deny or modify the application as if it were reviewing the action anew. (PMC Section 9-4.3208.) Thus, the Council may consider the application and determine whether the Reclamation Plan in fact should be approved. In considering the issues raised by this application and following review of all the application materials, the City Council has determined to deny the Revised Project.
For the foregoing reasons, there is no basis to overturn the Planning Commission’s effective denial.
2. Appeal 2 Filed By Dan Stegink.
Basis 1. Felons involved should be barred from doing business in Pacifica Finding: The City is not able to prohibit any individual and/or entity from doing business in Pacifica.
Basis 2. Nothing in Quarry requires remediation or imported fill Finding: Under State law, the property owner is required to reclaim the Quarry site, subject to SMARA and the City’s Surface Mining and Reclamation Ordinance Pacifica Municipal Code (PMC) Section 9-2.01 and obtain a SMARA Compliance Review from the California Department of Conservation, Division of Mine Reclamation.
Basis 3. Quarry is an Indigenous cultural asset worthy of both California and National registration of Historic Places Designation
Finding: Per the August 13, 2024 Memo by Raney Planning and Management, Inc., although the Rockaway Quarry does appear eligible for inclusion on the NRHP or CRHR under Criterion A/1 for its association with reconstruction efforts following the San Francisco Earthquake of 1906, the resource does not demonstrate sufficient integrity to be considered eligible for listing on the registries. Archival research did not reveal information sources that can be used to reconstruct the operational processes, personnel, contracts, business relationships, revenue, or policies involved with shaping Rockaway Quarry. Field investigations revealed no significant historic-era features or materials. As such, the resource is recommended as not eligible for inclusion to the NRHP or CRHP under Criterion B/2, C/3, or D/4. Further, as this resolution denies the Revised Project, the City Council does not need to make findings under CEQA.
Basis 4. The Biological Resources Report is inadequate.
Finding: The EIR analyzes the potential for these species to be on site. The EIR states that the Project site does not contain suitable aquatic habit with ponds and basking areas that would support Western pond turtles. The EIR acknowledges two known detections of California Red- Pacifica City Council 11 October 14, 2024
Legged frogs on the Project site and the Project includes restoration of a 0.20- acre California Red-Legged frog pond. The EIR acknowledges that the San Francisco Garter Snake is known to occur on Project site. Additionally, there are mitigation measures in the EIR that require training of employees to identify these species during reclamation activities, conduct surveys prior to reclamation activities, and limit reclamation activities during known active times for both species.
Further, as this resolution denies the Project, the City Council does not need to make findings under CEQA.
As set forth above, there is no basis for Mr. Stegink’s appeal.
NOW, THEREFORE BE IT FURTHER RESOLVED, that following its de novo review of the Revised Project, the City Council of the City of Pacifica hereby denies the Revised Project based on the findings set forth below:
A. California Environmental Quality Act. With respect to the California Environmental Quality Act (“CEQA,” codified at California Public Resources Code §§ 21000, et seq., and as further governed by the State CEQA Guidelines, found at 14 CCR §§ 15000, et seq.), as set forth in CEQA Guidelines section 15270(a), “CEQA does not apply to projects which a public agency rejects or disapproves.” Therefore, this resolution denying the Revised Project approvals is exempt from CEQA and the City Council takes no action to certify the EIR.
B. Legislative Approvals: Rezoning and Development Plan.
1. Findings. With respect to the findings required for Rezoning RZ-210-22 and Development Plan DP-86-22, the City Council considered all of the required findings set forth in Pacifica Municipal Code (“PMC”) section 9-4.2206, and hereby finds that the following findings cannot be met:
a. Section 9-4.2206(b) sets forth the following finding: “Each unit of the development, as well as the total development, can exist as an independent development capable of creating an environment of sustained desirability and stability or adequate assurance that such objective will be attained.”
The Revised Project is not capable of creating an environment of sustained desirability and stability nor does it adequately assure that these objectives can be attained. As the Applicant is unclear as to the ultimate end use of the Project site (open space or development) and has proposed imported fill amounts that range from almost 1 million cubic yards in the original application, to 874,000 cubic yards for the Revised Project, to 583,000 cubic yards and 400,000 cubic yards in the July 2 Proposal, it is uncertain how the site would ultimately develop. Further, it is unclear exactly how much fill would be needed for development of the ultimate end uses. Ultimate development could involve additional unanticipated fill, removal of fill placed on the site through reclamation, or additional grading.
b. Section 9-4.2206(c) sets forth the following finding: “The land uses proposed will not be detrimental to the present or potential surrounding uses and will have a beneficial effect which would not be achieved through other districts.”
The Revised Project would be detrimental to the present and potential surrounding uses as it would create excess truck traffic along an already congested local highway, and involve grading and fill that may not be necessary for development of ultimate end uses.
Further, the Revised Project does not minimize grading to the maximum extent practicable as it maintains slopes greater than 2:1 slope on the Revised Project site, as described in more detail in Finding G(1)(a). This amount of grading creates the necessity for a large amount imported fill, which in turn creates detrimental impacts on the present uses regarding traffic and a longer reclamation period, impacting surrounding neighborhoods and highways.
Pacifica City Council 12 October 14, 2024
c. Section 9-4.2206(d) sets forth the following finding: “The streets and thoroughfares proposed are suitable and adequate to carry anticipated traffic, and increased densities will not generate traffic in such amounts as to overload the street network outside the PD District.
The increase in traffic on streets and thoroughfares during construction is not suitable nor adequate to address the impacts resulting from approximately 161 truck trips per day, as proposed in the Revised Project. This would be a significant increase in traffic on the adjacent street network over the proposed four-year period of reclamation.
Further, the number of truck trips is due to the amount of imported fill in the Revised Project, a number that the Applicant has revised numerous times throughout the approval process. Thus, it is not clear what amount of imported fill is ultimately the minimum required for reclamation.
d. Section 9-4.2206(g) sets forth the following finding: “The area surrounding the development can be planned and zoned in coordination and substantial compatibility with the proposed development, and the P-D District uses proposed are in conformance with the General Plan and, where applicable, the Local Coastal Plan, or that changes in the General Plan or Local Coastal Plan are justified.”
The area surrounding the development cannot be planned and zoned in coordination and substantial compatibility with the Revised Project. The Applicant has suggested a number of possible end uses and imported fill amounts during the permitting and hearing process, as described above. Therefore, it is unclear what will ultimately develop on the Project site and how much grading will be necessary for that development. Given this lack of certainty, it is unclear exactly whether or not the amount of grading and subsequent impacts will be necessary for ultimate development and the surrounding area cannot be planned in compatibility with the Revised Project.
In addition, the Revised Project is not consistent with the General Plan. First, the Revised Project site is located within the HPD (Hillside Preservation District) overlay district and the Revised Project exceeds the HPD coverage standards. The HPD overlay district includes coverage controls that limit the allowable surface area of buildings, paving, and grading based on a formula that relates to the size and average slope of the Revised Project site as provided in PMC Section 9-4.2257. Sheets C0.1 and C1.0 in Attachment E of the Planning Commission October 2023 staff report demonstrate in more detail the grading area and calculations for allowable and proposed HPD coverage on the Quarry Parcel and Eastern Parcel. The proposed reclamation plan would include the HPD coverage values provided in Table 1:
Table 1
Hillside Preservation District (HPD) Coverage
Parcel Coverage Allowed Per PMC
Sec. 9-4.2257 Coverage Proposed
Quarry Parcel 3.0 acres (7.42% of site) 22.0 acres (54.45%) Eastern Parcel 15.5 acres (39.64% of site) 2.8 acres (7.16%) Pacifica City Council 13 October 14, 2024
As reflected clearly in Table 1, the Revised Project would not be consistent with these HPD coverage controls without a variance.
Further, the Revised Project is not consistent with the following General Plan policies:
i. Open Space and Community Facilities Element, OC-G-5 Open Space Preservation, which states: “Preserve open space that protects natural resources, visual amenities, and public health and safety. ….”
The Revised Project does not preserve open space or protect natural resources, visual amenities and public health. The Revised Project is an area that supports critical wildlife habitat which requires any reclamation on the property to be approved in the least impactful manner to avoid damaging natural resources, visual amenities and public health and safety to the greatest degree. The Project and Revised Projects proposed by applicants are unclear as to what amount of imported fill and disturbance is ultimately necessary to reclaim the site and prepare for future end uses. Therefore, the Revised Project is not the least impactful to protect public health and safety. ii. Conservation Element, CO-I-28 Management of ESHA, which states: “If the area qualifies as an ESHA under the California Coastal Act, the following regulations apply:
Alteration of landforms, removal of vegetation, impervious surfaces, noise, light, and glare shall be minimized.”
The Revised Project does not minimize alteration of landforms or noise. The Revised Project site is potentially an ESHA under the California Coastal Act. As a result, alteration of land forms and noise are required to be minimized. As discussed above, the Revised Project does not minimize grading or alteration of the existing landforms.
The Applicant has proposed a number of different plans and amounts of fill. Ultimately, it is not clear that the Revised Project includes more fill and grading than necessary, particularly given the lower fill amount of 583,000 or 400,000 cubic yards proposed by applicant in its July 2 Proposal.
iii. Conservation Element, CO-I-70 Native American Sites, which states:
“Work with local Native American tribes to protect recorded and unrecorded cultural and sacred sites, and educate developers and the community-at-large about the connections between Native American history and the environmental features that characterize the local landscape. Development on archaeologically sensitive sites requires on-site monitoring by appropriate Native American consultant(s) and a qualified archaeologist of all grading, excavation, and site preparation activities that involve earth-moving operations.”
The Applicant did not work with the Ramaytush tribe when preparing the Revised Project plans. The Revised Project would impact a site significant to the local Ramaytush tribe. While the Applicant has indicated its agreement to work with the Ramaytush tribe in the future, the development of the Revised Project was conducted without consultations or meeting with the tribe.
iv. Land Use Element, LU-I-25, Rockaway Quarry Site, which states: “Enable the responsible development and environmental conservation of the Quarry Site.
Preparation of a specific plan for the Quarry site could achieve the desired development outcomes. Allowable development should provide City revenues, substantial public open space, and commercial uses and public spaces attractive to both visitors and local residents. Uses may include an inn or hotel; shops and restaurants; performance or Pacifica City Council 14 October 14, 2024
conference spaces; and public uses. Ordinance No. 391 provides that residential uses are only authorized after a vote of the electorate. Development should be integrated with the Rockaway Beach district, to create an expanded visitor-oriented area in a memorable natural setting. Environmental protection is a priority at this site and includes preserving upland areas as open space, preserving the riparian corridor along Calera Creek, and preserving critical habitat. Any development of the Quarry site will require detailed evaluation of potential geotechnical hazards and biological resources to ensure safe use of the site and that sensitive habitat and wetlands are protected; the likely footprint of development could be much smaller than the area designated.” The Revised Project would not enable responsible development and conservation of the Quarry Site. Reclamation under the Revised Project would occur prior to a specific planning process and would not allow for coordinated grading and development of the Project site. Further, the Applicant has proposed numerous alternative options, with varied fill amounts, depending on the ultimate development. This does not promote responsible development of the Quarry Site.
e. Section 9-4.2206(i) sets forth the following finding: “The project is consistent with the City's General Plan and, if applicable, Local Coastal Plan.” As discussed above, the Revised Project would not be consistent with the General Plan, including policies in the Open Space and Community Facilities Element, Conservation Element, and Land Use Element of the 2040 General Plan.
2. Denial. Based on the above findings, the City Council hereby denies Rezoning RZ-210- 22 and Development Plan DP-86-22.
C. Specific Plan Permit.
1. Findings. With respect to the findings required for a Specific Plan permit, the City Council considered all of the required findings in PMC Section 9-4.2209, and hereby finds that the following finding cannot be met:
a. Section 9-4.2209(a) sets forth the following finding: “The specific plan is consistent with an approved development plan.”
The proposed specific plan permit is not consistent with an approved development plan. As set forth above, the development plan has been denied. Therefore, the finding for approving a specific plan cannot be made.
2. Denial. Based on the above findings, the City Council hereby denies Specific Plan Permit SP-179-22.
D. Quarry Use Permit.
1. Findings. With respect to the findings required for a quarry use permit, the City Council considered all of the required findings in PMC Section 9-2.07(b), and hereby finds that the following findings cannot be met:
a. Section 9-2.07(b)(1) sets forth the following finding: “The reclamation plan conforms fully to the provisions of this chapter, the City's general plan, and the Surface Mining Pacifica City Council 15 October 14, 2024
and Reclamation Act Sections 2772 and 2773, and shall comply with applicable requirements of State regulations (Sections 3500-3505 and 3700-3713) as may be amended.” The Revised Project would not be consistent with policies in the 2040 General Plan, as more fully detailed above in Section B(1)(d) regarding Legislative Approvals.
Further, the Revised Project is not consistent with SMARA. As stated in Public Resources Code Section 2712, the Legislature’s intent in enacting SMARA was to assure that:
a) Adverse environmental effects are prevented or minimized and that mined lands are reclaimed to a usable condition which is readily adaptable for alternative land uses; b) The production and conservation of minerals are encouraged, while giving consideration to values relating to recreation, watershed, wildlife, range and forage, and aesthetic enjoyment; and,
c) Residual hazards to the public health and safety are eliminated.
The Revised Project is not consistent with the intent of SMARA as it is not clear what the ultimate end use will be and how much fill is required for such end use. Further, the Revised Project would not be consistent with the City’s HPD requirements and would create residual public health and safety hazards due to imported fill amounts that lead to increased traffic and other impacts.
Further, the Revised Project would not be consistent with the performance requirements of the SMARA regulations in Title 14, California Code of Regulations, Section 3704, which provides the following:
“Section 3704: Performance Standards for Backfilling, Regrading, Slope Stability, and Recontouring. Backfilling, regrading, slope stabilization, and recontouring shall conform with the following standards:
(d) Final reclaimed fill slopes, including permanent piles or dumps of mine waste rock and overburden, shall not exceed 2:1 (horizontal:vertical), except when site-specific geologic and engineering analysis demonstrate that the proposed final slope will have a minimum slope stability factor of safety that is suitable for the proposed end use, and when the proposed final slope can be successfully revegetated. ….
(f) Cut slopes, including final highwalls and quarry faces, shall have a minimum slope stability factor of safety that is suitable for the proposed end use and conform with the surrounding topography and/or approved end use.”
In this case, the Revised Project would include slopes that exceed 2:1 and it is not clear that the increased slopes are would have a minimum slope stability factor of safety suitable for the proposed end use, especially given that it is not clear what the ultimate end use will be. Further, 2:1 slopes are not required on the quarry face. Slopes could be steeper to avoid the unnecessary impacts of excess fill as long as they “have a minimum slope stability factor of safety that is suitable for the proposed end use and conform with the surrounding topography and/or approved end use.” Again, it is not clear what the ultimate end use will be and the proposed slopes could be modified to reduce the impacts of the Revised Project on the City and surrounding neighborhood. b. Section 9-2.07(b)(4) sets forth the following finding: “The reclamation plan will restore the mined lands to a usable condition that is readily adaptable for alternative land uses consistent with the general plan, local coastal land use plan, California Coastal Act, and Zoning Code.”
Pacifica City Council 16 October 14, 2024
As detailed above, the Revised Project does not restore lands to a usable condition readily adaptable for alternative land uses. There have been numerous plans and fill amounts proposed and it is not clear what is ultimately necessary for development of end uses. Further, as described in detail above, the Revised Project is not consistent with the 2040 General Plan or the City’s Zoning Code.
2. Denial. Based on the above findings, the City Council hereby denies Quarry Use Permit UP-71-16.
E. Variance.
1. With respect to the findings required for a variance, the City Council considered all of the required findings in PMC Section 9-4.3404, and hereby finds that the following findings cannot be met:
a. That because of special circumstances applicable to the property, including size, shape, topography, location, or surroundings, the strict application of the provisions of this chapter deprives such property of privileges enjoyed by other property in the vicinity and under an identical zoning classification.
The strict application of the City’s HPD requirements would not deprive the owner of privileges enjoyed by other property owners in the vicinity and subject to the HPD regulations. The HPD overlay district is applied to various properties in the City of Pacifica. The HPD overly district in PMC section 9-4.2252 is intended to preserve natural terrain and topographic features and to regulate new development to preserve natural hillside topography. As described above, it is not clear that the amount of fill proposed in the Revised Project is necessary for reclamation, especially in light of proposals that allow for less fill. Alternative reclamation plans would have the potential to limit fill and be more compatible with the City’s HPD requirements. Therefore, the provisions of the HPD coverage limits to the Quarry Parcel, or aligning more closely with those provisions, would not prevent the Applicant from accomplishing legally-required reclamation of the former quarry site.
b. That the granting of such variance will not, under the circumstances of the particular case, materially affect adversely the health or safety of persons residing or working in the neighborhood of the subject property and will not, under the circumstances of the particular case, be materially detrimental to the public welfare or injurious to property or improvements in the area.
The granting of a variance for the Revised Project would adversely affect the health and safety of person in the neighborhood of the project site and would be detrimental to the public welfare. As discussed above, the amount of fill grading required by the Revised Project is not designed to minimize impacts to public health, safety, and the general welfare. Reclamation could be accomplished with less fill in accordance with SMARA, which would limit the traffic and other impacts of the Revised Project.
2. Denial. Based on the above findings, the City Council hereby denies Variance PV-531-
22. F. Tree Permit.
1. Findings. With respect to the findings required for a Tree Permit, the City Council considered all of the required criteria in PMC Section 4-12.04(c), and hereby finds that the following findings cannot be met:
Pacifica City Council 17 October 14, 2024
a. Section 4-12.04(c)(2) sets forth the following criteria: “Whether the requested action is necessary for the economically viable use of the property.” The Tree Permit is not necessary for economically viable use of the property as the Revised Project is being denied and it is not necessary to remove any trees. In addition, other viable uses of the property could occur without cutting down all the requested trees. b. Section 4-12.04(c)(4) sets forth the following criteria: “The number, species, size, and location of existing trees in the area and the effect of the requested action upon shade, noise buffers, protection from wind damage, air pollution, historic value, scenic beauty and upon the health, safety, and general welfare of the area and the City as a whole.” Removal of the protected trees would result in potential adverse impacts to shade, noise buffers, protection from wind damage, air pollution, or historic value on the Project site or immediate surroundings given that the Revised Project is being denied and no trees need to be removed.
2. Denial. Therefore, the City Council hereby denies Tree Permit TP-1-22. * * * * *
Passed and adopted at a regular meeting of the City Council of the City of Pacifica, California, held on the 14th day of October 2024.
AYES, Councilmembers:
NOES, Councilmembers:
ABSENT, Councilmembers:
ABSTAIN, Councilmembers:
______________________________
Sue Vaterlaus, Mayor
ATTEST: APPROVED AS TO FORM:
______________________________ ______________________________ Sarah Coffey, City Clerk Michelle Kenyon, City Attorney