RECEIVED
7 City of Pacifica
DEC I L 2025
APPEAL FORM
CITY CLERK
INSTRUCTIONS: TO FILE AN APPEAL, COMPLETE THIS FORM AND FILE IT WITH THE CITY CLERK'S OFFICE, CITY HALL, 170 SANTA MARIA AVE, PACIFICA, CA 94044, NO LATER THAN TEN (10) CALENDAR DAYS OF THE DECISION (POSTMARK DATE WILL NOT BE ACCEPTED), TOGETHER WITH ANY REQUIRED APPEAL FEE. ATTACH ADDITIONAL SHEETS IF NECESSARY. YOU WILL BE NOTIFIED IN WRITING OF THE HEARING DATE FOR YOUR APPEAL.
FEES: $606.00 FOR APPEALS TO CITY COUNCIL (FY 2025-26); 5461 TREE PERMIT APPEAL FEE (FY 2025-26) ($606.00 FEE REQUIRED PER APPEAL OF PLANNING COMMISSION DECISION(S), COMMUNITY DEV. DIRECTOR / ZONING ADMIN.
ADMINISTRATIVE APPROVALS, APPEALS OF SHORT-TERM RENTAL NOTICE OF VIOLATION / SUSPENSION / REVOCATION) Please contact client through counsel: Will Fortna.
PROPOSED PROJECT: APPELLANT:
Title/Name: File No. 2018-058, Bayview Road Name: Coalition for a Safe Pacifica Address: Bayview Road, approx. 330 feet ENE of th Address:
Applicant/Developer: Javier M. Chavarria Phone (Day)
DECISION OF (check one): DECISION DATE: 12/01/2025 Email Address:
/ Planning Commission Parks, Beaches & Recreation Division | • City Staff (Title):
DECISION AT ISSUE: * APPROVAL or • DENIAL of:
Use Permit Site Development Permit • Tentative Subdivision Map D Short-Term Rental EIR or Negative Declaration Coastal Development Permit D Administrative Decision Variance Parking Exception Home Occupation Permit Tree Permit Other DESCRIBE DECISION BEING APPEALED:
The finding that the project is exempt from CEQA and the approval of Site Development Permit PSD-# DESCRIBE GROUNDS FOR APPEAL:
See Attached.
APPELLANT'S RELATIONSHIP TO THE ITEM BEING APPEALED? (check one):
• Project Applicant 1 Neighbor I&/ Concerned Citizen other APPELLANT'S SIGNATURE: X DATE: 12/10/2025
Recened By: Sarch Coffay Fee Paid: • Cash Check • Online #/771.
Receipt Date: 12/11/2025 Receipt # 2506
City Clerk's Office Use Only Rev. 07/01/2025
CITY OF PACIFICA Receipt
Ur PACI
AR FINANCE DEPARTMENT
170 SANTA MARIA AVENUE
PACIFICA, CA 94044
Receipt Number 2506
Receipt Date 12/11/2025
Receipt Time 10:22:55
Customer:
Paid By VERA TOTH-FEJEL
Payment Method CHECK
Clerk: Stephanie Coy
ITEM NO. DESCRIPTION AMOUNT
APPEAL TO CITY COUNCIL $606.00
APPEAL TO CITY COUNCIL FILE NO. 2018-058
GL Account: 101100-47001- $606.00
GL Account:101-10001- $606.00
PAYMENT TYPE QUANTITY REFERENCE AMOUNT
CHECK 1 1771 $606.00
VERA TOTH-FEJEL
Previous Balance $606.00
Total Remitted $606.00
Adjustments $0.00
New Balance $0.00
Appeal
I. Introduction. 1
II. The difficulty of developing the lot is a result of choices of the landowner and their predecessors in interest. ..2
III. Site Development Permit exclusion criteria apply. ...4 A. Exclusion Criterion 3 met ..4
B. Exclusion Criterion 4 met .. 6
C. Exclusion Criterion 6 met. ..7
D. Exclusion Criterion 8 met .. 7
E. Exclusion Criterion 9 met.. ..9
IV. Project not in compliance with public notice requirements.. 10 A. Insufficient Time. . 10
B. Incomplete Application Materials.... 11
V. Project not in compliance with setback requirements.. 11 VI. Other Grounds for Appeal. 11
VIl. Project Description Inadequate under CEQA 12
VIII.Project is not exempt from CEQA . 13
A. The Commission cannot use an exemption because they are impermissibly doing so by relying on mitigation measures.. . 13
B. Class 3 Exemption does not apply... . 13
C. The Unusual Circumstances exception to the Class 3 Exemption applies . .. 14 IX. Without Categorical Exemption, Initial Study Required 17 X. Requested Action 17
I. Introduction
Coalition for a Safe Pacifica ("Coalition") appeals (1) the Planning Commission's conditioned approval of an application for a Site Development Permit for construction on APN 022-062-550 ("Project"), as well as (2) the Planning Commission's conclusion that the Project qualifies for a Class 3 Exemption from CEQA and (3) that there are no "unusual circumstances" present which would preclude the use of a Class 3 Exemption. While a variance would be required to complete the Project, none may issue because any hardship is a result of the owner's actions, not due to a condition of the parcel.
Coalition members commented during the comment period and attended the December 1, 2025 meeting at which the Commission approved the issuance of a Special Development Permit.
Appeal 2
The difficulty of developing the lot is a result of choices of the landowner and their predecessors in interest.
The project is proposed on a "flag lot" with primary frontage on a "paper street." But at the time the subdivision was first mapped, there was no flag lot.' 16) Saring Street
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Some time after the subdivision was created, lots 13 and 6 were combined. The acquired lot 6 had 25 feet of frontage on Bay View Road.
' 1908 Subdivision Map, Book 10, p. 53.
Appeal 3
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In 1974, the owners of the Project Lot elected to grant an easement to the owners of lot 5, limiting the developability of the Project Lot. The present owners purchased the Project Lot with full awareness of the restrictions on development of lot 6 that their predecessors had incurred, and purchased the property with this encumbrance recorded in the chain of title. But for the earlier grant of easement, the flag lot would have 25 feet of frontage on Bay View Road, which would enable construction consistent with Pacifica's Municipal Code. Any difficulty in developing the land that stems from the easement is thus a creation of the owner, not of the conditions of the land, and the variance that is required for the proposed Project should not be granted, and certainly not at the expense of neighbors who will suffer the loss of setbacks.? Courts have recognized that "The fact that some hardship or even financial loss may result to a particular property owner does not entitle him to be exempted from its provisions."3 "The rule is well established that self-induced hardship affords no grounds for attack on an enactment or regulation."4
2 Cal Gov. Code, § 65906; Atherton v. Templeton (1961) 198 Cal.App.2d 146, 154 (holding that landowner's decision to dispose of land, thereby creating own hardship in complying with local zoning, did not create obligation on part of town to grant a variance).
3 Atherton at 153.
4 Id. at 154.
Appeal 4
III. Site Development Permit exclusion criteria apply.
The proposed development sits in the R-1-H zoning district. The objectives of this hillside district are to "ensure that new structures and streets are designed to protect the visual and natural resource qualities of the hillsides and to minimize adverse impacts on existing neighborhoods, drainage, traffic, land stability, and natural resources." Pacifica Municipal Code requires a Site Development Permit for any new building permit in the District. A Site Development Permit "shall not be issued" if any of nine criteria are met.? The Planning Commission's staff report analyzed these criteria and found none of them to be present.
However, the staff report's analysis contains omissions, minimizations, and misstatements of fact. At least five of the nine criteria have been met, meaning that the Planning Commission erred in approving the Project and issuing the Permit.
A. Exclusion Criterion 3 met
(3) That insufficient landscaped areas have been reserved for the purposes of separating or screening service and storage areas from the street and adjoining building sites, breaking up large expanses of paved areas, and separating or screening parking lots from the street and adjoining building areas from paved areas to provide access from buildings to open areas
The staff report claimed that "plantings along the driveway and near retaining walls are strategically placed to break up and soften the visual impact of these hardscape elements" As clearly evidenced by the proposed view from Bayview Road, below, the paved driveway, as proposed, would not feature any plantings whatsoever, let alone any that are "strategically placed."
/
/
/
/
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5 Sec. 9-4.951.
• Sec. 9-4.953
7 Sec. 9-4.3204(a).
8 Packet p. 50.
Appeal
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ENTRY FROM BAYVIEW RD EXISTING VIEW ENTRY FROM BAYVIEW RD PROPOSED VIEW The staff report further claims that "[t]he selection of small and large broadleaf trees aims to screen the proposed development from neighboring residential properties." However, the proposed ADU would sit close to the existing home at Lot 16, with windows looking into those at the latter. The proposal does not screen these intrusive views. On the contrary, as shown below, it would remove a large tree that would otherwise provide the house at Lot 16 with some screening.
Line $58:02:00 E RECORD POSITION STAMPEDLS 3455 FROM ~ TRIP WITH TAC 58 68(0)
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16 LOCATES
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LOCATION
Appeal 6
B. Exclusion Criterion 4 met
(4) That the proposed development, as set forth on the plans, will unreasonably restrict or cut out light and air on the property and on other property in the neighborhood, or will hinder or discourage the appropriate development and use of land and buildings in the neighborhood, or impair the value thereof In its analysis under this section, the staff report claims that "[t]he placement of the buildings on this relatively spacious site allows for setbacks from all property lines that exceed the minimum requirements for both the single-family residence."9 With regards to the construction of a retaining wall and elevated, paved driveway abutting Lot 7—a structure-this is simply false.
The minimum side setback for any structure is five feet, ° but the proposed retaining wall supporting an elevated driveway on the property line would directly abut Lot 7's property line.
Under local ordinance, 'Side setback' shall mean a clear distance from the side of any lot within which no building or structure may be permitted."'! The proposed driveway is a structure:
'Structure' shall mean anything constructed or erected the use of which requires location on the ground or attachment to something having location on the ground."2 Thus, the proposed driveway/retaining wall structure, proposed for construction on the lot line, is within the 5-foot setback, and is not allowed, at least not without a variance, which has not been sought or granted here.
Staff say: "The project site is a flag lot. Consistent with past practice, the Planning Director has interpreted the front property line to consist of the property line separating the subject site from the public street (the definition in PMC sec. 9-4.254) along with the bottom of the "flag" inland of the public street"": But this is plainly inconsistent with the definition in the code of "front lot line" which is: "in the case of an interior lot, a line separating the lot from the street."4 The code defines "side lot line" as: "any lot boundary not a front or rear lot line. A side lot line separating a lot from another lot or lots is an interior side lot line; a side lot line separating a lot from a street is a street side lot line."S Staff cannot nullify the plain meaning of the words of the code, regardless of whether or not they have done so before.
The staff report also states, presumably in support of its conclusion that this criterion is not met, that "[t]he proposed development is located on significantly higher ground than the nearest residences along Rockaway Beach Avenue to the south." However, the fact that the proposed paved driveway is on significantly higher ground (and will be even higher if elevated as proposed) than the nearest residence to the south actually shows the applicability of this criterion: i.e., that the development would unreasonably restrict or cut out light and air. The 9 Packet, p. 50.
10 Sec. 9-4.402(e)
" Sec. 9-4.271 (emphasis added).
12 Sec. 9-4.278.
13 Packet, p. 3, n. 3.
14 Sec. 9-4.254.
15 Sec. 9-4.256.
Appeal 7
house at Lot 7 would lose significant sunlight and free-flowing air by the construction on its property line of a tall, elevated retaining wall less than five feet from its second-floor windows.
Finally, this section includes the assertion that "the proposed residence will set back a minimum of 15'-6" at its southeastern corner with its taller, two-story portions setback further behind. The setbacks from common property line of the proposed buildings will ensure that there are no light and air impacts to surrounding properties including those that are not developed at present."*16 Plans provided in the package, however, suggest that the proposed buildings will block the western sunlight of the house at Lot 16. Moreover, the applicant has refused neighbors' repeated requests for story poles. Without such poles, neither neighbors nor Commission were able to adequately assess the impact of the proposed development on light and air. These poles must be provided before a conclusion under this section can be reached.
C. Exclusion Criterion 6 met
(6) That the proposed development will excessively damage or destroy natural features, including trees, shrubs, creeks, and rocks, and the natural grade of the site
In order for this development to be physically possible, let alone safe, the applicant must perform significant excavation and grading work - involving 2,008 cubic yards of cuts!? - which will necessarily damage the natural grade of the site. Staff concede as much:
The steeply sloping topography of the project site presents significant challenges to minimizing excavation. The project proposes extensive retaining walls on the north and the southern side of the project site with a retaining wall east of the accessory dwelling unit, as part of development on the project site. However, the overall site and building design follows the slope of the site to the maximum extent feasible.'
But the Design Standards do not have a "maximum extent feasible" criteria; they simply prohibit projects that excessively damage the natural grade of the site.
D. Exelusion Criterion 8 met
(8) That the proposed development is inconsistent with the City's adopted Design Guidelines
As shown below, the proposed development is inconsistent with multiple Design Guidelines and as such the Commission must not issue a site development permit. 16 Packet, p. 50.
17 Packet p. 45.
18 Packet, p. 51
Appeal 8
A.2. "Building placement should take into account potential impacts on adjacent property. Existing views, privacy... should be preserved wherever possible."
The staff report failed to consider this design guideline. As explained elsewhere, the proposed buildings would cut off Lot 16 and 17's western light.
Perhaps most egregious is the elevated, paved driveway which will allow cars and trucks to drive less than five feet from Lot 7's second story window. These invasions of privacy - not to nention the safety concerns of having vehicles passing so close to the second-floor window an aised at a significant height from the ground of Lot 7 - should be enough to prevent th Commission from issuing a site development permit.
B.2. "An important aspect of design compatibility is scale... A development can be 'out of scale' with its surroundings due to its relative height, bulk, mass, or density...Residential projects, particularly single-family dwellings, which are much larger than neighboring structures are therefore discouraged.
The City's heigh limitation is a maximum only, and the
maximum height may often be inappropriate when considered in the context of surrounding development and
topography...As with height limitation, the City's lot coverage limitation is a maximum only."
The staff report acknowledges the gulf in size and scale between the proposed development and surrounding homes.!? However, the report claims that the proposed buildings' design features - balconies with wood railings, varied roof profiles and wall planes - are enough to "scale down the development" and avoid violation of this design guideline.20 No amount of variety of roof profile or wall plane can help the fact that the proposed buildings are grossly out of scale - in height, bulk, and mass - with the smaller neighboring homes.
Because this development is inconsistent with this design guideline, the Commission should not provide approval for a special development permit.
B.6. "Consideration should be given to the impact of
development on the privacy of surrounding properties. Use judicious window placement and appropriate landscaping to help minimize the potential for loss of privacy."
In relation to this design feature, the staff report claims that "It]he proposed site plan allows for relatively deep setbacks from all property lines."2' Again, this is simply false. As shown above. 19 Packet p.54.
20 Id.
21 Id.
Appeal 9
the proposed site plan includes the construction of an elevated, paved driveway and retaining wall on the very border of neighboring Lot 7, mere feet away from their second-floor window.
The report also claims that "trees would be strategically planted in accordance with the final landscape plan to screen the proposed development." As also shown above, this is also false. On the western edge of the property, the proposal would cut down a large, screening tree in front of the window of Lot 16.
C.6. All parking areas should be landscaped with fast-growing trees and/or shrubs in order to screen vehicles from view and minimize the visual impact of expansive areas of asphalt." There has been no attempt to minimize the visual impact of the expansive paved driveway with any sort of landscaping.
E. Exclusion Criterion 9 met
"That the proposed development is inconsistent with the General Plan, Local Coastal Plan, or other applicable laws of the City." As shown above,? the proposed driveway/retaining wall structure violates the City's side setback limits.23
The driveway violates Section 9-4.2813(i) which stipulates that "Ti]n no event shall the driveway access exceed more than fifty...percent of the total lot frontage or forty...feet, whichever is less." Here, the proposed driveway is eighteen feet wide and exceeds fifty percent of the total lot frontage, which is twenty-five feet.
The driveway also violates Sec. 9-4.2813(e)(I), which requires that when any portion of an exterior wall is located more than one hundred fifty feet from Fire Department vehicle access - which is the case here - the driveway complies with applicable provisions of the California Fire Code. Those provisions in turn provides a minimum twenty-foot width for emergency vehicles.24 The driveway's width is eighteen feet- under the twenty-foot minimum. While the Commission's staff report asserts that the eighteen-foot-wide driveway has been "deemed acceptable by the North County Fire Authority (NCFA) given the project site's limitations," the Code does not provide for a variance.
The extensive construction on slopes/grades above 50% violates local land use codes, which incorporate the California Building Code.
22 See Section III.B.
23 Sec. 9-4.402(e).
24 Packet p.45.
Appeal 10
The Project is inconsistent with the General Plan's Guiding Policy SA-G-1 for seismic and geologic hazards, which requires the "minimiz[ation] of risks of property damage and personal injury posed by geologic and seismic hazards."25
The project is also inconsistent with multiple other of the General Plan's guiding policies, and implementing policies for seismic and geologic hazards:
SA-I-2: Prohibit development in areas of mostly landslides or very high liquefaction risks...or on slops steeper than 35 percent, unless detailed site investigations ensure that risks can be reduced to acceptable levels and the structure will be protected for its design life.
SA-I-6: Prohibit mitigation measures for potential geotechnical hazards if those measures could adversely affect surrounding property, including...adversely affect public health, safety, and welfare.
SA-I-7: Require erosion prevention of hillside areas by revegetation or other acceptable methods.
SA-I-9: Continue enforcing the existing...Hillside Preservation District regulations that restrict development in hazardous areas where access is impractical and areas prone to hillside... erosion, landslides...
CO-I-15: Enable natural draining by reducing the amount of impervious surfaces on a development site, where feasible.
IV. Project not in compliance with public notice requirements.
A. Insufficient Time
The Commission must give nearby property owners at least ten days' notice of the hearing. 26 Here, residents did not begin receiving notice (in the form of a mailed letter) until Friday November 28, two days before the Monday hearing. Although these letters were stamped with postage meters by applicant on November 20, the fact that they took at least eight days to arrive suggests that they were not actually delivered to a post office or mailed on November 20, but closer to the 28th. Postage meters allow businesses to print or stamp postage indicia. Here, we know that the applicant used a postage meter to stamp their own letters on November 20. There is no evidence, however, of the date on which the applicant dropped off the letters at a post office. As such, there is no evidence that the letters were dropped off - that is, actually mailed - on November 20, applicants' deadline to comply with the ten days' notice requirement. Again, 25 General Plan 8-12.
26 Sec. 9-4.3203.
Appeal 11
because residents only began to receive the letters eight days later and the letters were not travelling far, it is very likely that the letters were not sent with the requisite ten days notice.
To compound this, the letters began to be received on the day after Thanksgiving - a time when many residents were out of town or traveling. Even if applicant had complied in fact with the notice requirement - which it appears it did not - the decision to send the letters out just before the postal and city holidays of Thanksgiving and the day after Thanksgiving constitutes a failure to comply in spirit.
B. Incomplete Application Materials
The 2023 amendment to the easement-which applicants wish to use to help the construction of the elevated drive-was not made available to nearby residents until the evening of the meeting.
This is a violation of the Brown Act.
The Brown Act requires that a meeting agenda must provide the public with a location where they can inspect associated documents and reports, including any documents delivered after the posting of the agenda.? When an agency delivers documents after a meeting agenda is posted, the agency may post those documents on a website rather than at a physical location, providing certain criteria are met.2 Here, the Commission supplied the 2023 amendment to the easement neither in a designated physical location nor on a website. Instead, the easement was hand- delivered at the meeting itself. This constitutes a violation of the Brown Act.
Without adequate time to review the proposal materials - and without access to certain important documents - nearby residents could not adequately consider the materials, seek independent review, provide feedback, and prepare questions and comments for the December 1 meeting. The Commission cannot rush through a controversial, unusual, and unsafe development without at least providing nearby residents and interested parties with adequate notice and information.
V. Project not in compliance with setback requirements
As explained above, developments within the R-1-H District must feature a side setback of at least five feet.?9 Here, however, the applicant proposes the construction of a retaining wall and paved driveway right up against Lot 7—less than five feet from the neighboring house and its second-floor window. This is a clear violation of Pacifica's setback requirements.
VI. Other Grounds for Appeal
a) The Commission ignored the fact that the development site could also be accessed via the paper road of Calera Terrace. The development of this road would prevent the issues stemming from the proposal of an elevated, paved driveway on Lot 6, directly abutting the borders of Lot 7. However, it appears the Commission completely ignored this other access route.
27 Gov. Code. $54957.5(b)
28 Id.
29 Sec. 9-4.402(e).
Appeal 12
b) There appear to be significant inconsistencies between applicant's architectural plans and renderings. 3° For instance, the proposed house's height and placement differ between the two. Without accurate rendering - and without story poles - neither nearby residents nor the Commission or its staff could accurately gauge, analyze, or provide feedback on what exactly applicant propose to build.
c) Although the architectural style of the proposed buildings may be consistent with surrounding homes, the large size is not, as acknowledged in the staff report.32 The proposed development's building proposal is 3,849.330 square feet33—substantially larger than the surrounding homes.
d) The Commission did not consider how the applicant intends to build without access to neighbors' property, to which neighbors have indicated they do not intend to grant access. This issue is particularly acute for the proposed construction of the elevated driveway which applicant wishes to construct directly on Lot 7's property line. e) The Commission did not analyze the increase in heavy construction vehicle traffic on Bayview Road and surrounding streets. This will result in degradation of road quality and the blocking of a one-lane road used for ingress, egress (including for safety and emergency vehicles) and evacuation of residents in the case of fire or earthquake. f) The last-minute conditions announced at the December 1 meeting include a required security or bond covering construction related to retaining walls. However, the form and amount of that security is left up to the city engineer, who is provided complete discretion in the matter. The Commission must provide some formula or more information pertaining to the calculation of this security, in order to provide nearby residents with adequate assurances that the work will be done in a safe and lawful manner and that any resulting damage will be covered by the applicant.
VII. Project Description Inadequate under CEQA
Under CEQA, a project description - and the accompanying analysis - must be stable and consistent.34 Here, however, the project description and its accompanying analysis have changed over time, with the addition at the December 1 meeting of several new conditions and mitigation measures. These late changes to the project description and the new analysis now required of them prevent the public - and indeed, the Commission - from supplying adequate input. 30 Restoration Workshop letter, p.2-3.
31 See III.B
32 Packet p.54.
33 Id. at 79.
3* County of Inyo v City of Los Angeles (1977) 71 Cal.App.3d 185, 197-98 ("A curtailed, enigmatic or unstable project description draws a red herring across the path of public input.") Appeal 13
VIII. Project is not exempt from CEQA
A. The Commission cannot use an exemption because they are impermissibly doing so by relying on mitigation measures
When evaluating whether a categorical exemption may apply, an agency may not rely on mitigation measures as a basis for concluding that a project is categorically exempt, or as a basis for determining that one of the significant effects exceptions does not apply.35 Rather, when using mitigation measures, an agency must either prepare an environmental impact report (EIR) or a mitigated negative declaration.36 This is the case when mitigation measures are included in the initial project application or adopted later.37
Here, the Commission predicated their issuance of the permit on a series of conditions that they added at the very last minute (towards the end of the December 1 meeting itself. These new conditions should be construed as mitigation measures because they mitigate the environmental harms or potential harms associated with the development (for instance, by requiring repair of roads and public improvements, a storm drain system large enough to adequately detain water runoff, and a future assurance that the bio-swales will not create stability issues with the grade slopes). 38 This categorical exemption should therefore be construed as a mitigated categorical exemption which is not allowed. Further, these measures were added at the very last minute, essentially concurrently with the issuance of the permit, and there was no time for the Commission to analyze their effects on the CEQA analysis.
The Commission violated CEQA by improperly relying on mitigation measures as a basis for determining that one of the significant effects exceptions does not apply. It must therefore withdraw its CEQA findings and either produce an EIR or a mitigated negative declaration.
B. Class 3 Exemption does not apply
The Commission improperly relied on the Class 3 Exemption to CEQA. This exemption applies to the "construction and location of limited numbers of new, small facilities or structures. "39 The regulations provide examples of "lo]ne single-family residence, or a second dwelling unit in a residential zone" and "[a]ccessory (appurtenant) structures including garages, carports, patios. swimming pools, and fences."40
35 Salmon Protection & Watershed Network v. County of Marin (2004) 125 Cal.App.4th 1098, 1102, 1107-08 ("An agency should not be permitted to evade standards governing the preparation of a mitigated negative declaration by evaluating proposed mitigation measures in connection with the significant effect exception to a categorical exemption."); Azusa Land Reclamation Co. v Main San Gabriel Basin Watermaster (1997) 52 Cal.App.4th 1165, 1200 (holding that if mitigation measures are needed to avoid potentially significant impacts, then at a minimum a mitigated negative declaration must be prepared).
36 Id.
37 Id. at 1108.
38 See new conditions announced at December 1 meeting and Packet p. 75. 39 |4 CCR 15303.
40 14 CCR 15303(a) and (e).
Appeal 14
Here, however, applicant is proposing a combination of a single-family residence, an ADU, a garage, retaining walls, and significant modifications to the landscape and grading of an extremely steep and landslide-inclined hillside. This is not the typical scenario of a simple house construction on a regular lot in a regular neighborhood as contemplated by Class 3. The combination of site topography and geology, multiple building types, and high levels of excavation, grading, and engineering work together bring this proposed development out of Class 3.
C. The Unusual Circumstances exception to the Class 3 Exemption applies There are two ways to establish the presence of unusual circumstances. The first is a two-prong test. Under the first prong, an objector must show unusual circumstances. This is a factual inquiry in which the agency weighs any relevant evidence to determine if any circumstances are unusual in the context of other projects in the exempt class. Courts have found that, with respect to the Class 3 small structure exemption, the proposed project's size may constitute an unusual circumstance.4 As can a project's location.*2
If the agency determines that there are indeed unusual circumstances, then it moves to the second prong, under which it must determine whether there is a reasonable possibility that a "significant environmental impact" will result from those unusual circumstances. This prong is satisfied if there is any substantial evidence in the record that would support a fair argument that a significant impact on the environment may occur as a result of the unusual circumstances.
The second way to show unusual circumstances is to simply show a significant environmental impact, as this necessarily shows that the circumstance of the project is unusual.43 As such, a showing of significant environmental impacts satisfies both prongs of the two-part test described The Planning Commission's staff report determined that the unusual circumstances exception to the Class 3 exemption does not apply.4 The analysis supporting this conclusion, however, is conclusory and does not seriously engage with the evidence throughout the Packet showing both unusual circumstances and a significant environmental impact.
As explained above, the size or location of a project may constitute unusual circumstances in the context of a Class 3 exception and here, both the proposed project's size and location constitute unusual circumstances. A typical project under Class 3 is the construction of an ADU or single- family house, typically on a regular residential lot.t° Here, however, we have a very large building (much larger than the surrounding homes), an ADU, a three-car garage, the construction of an elevated paved driveway, multiple retaining walls, and extensive excavation and structural * Berkeley Hillside Preservation v. City of Berkeley (2015) 60 Cal.4th 1086, 1118 ("whether a circumstance is unusual 'is judged relative to the typical circumstances related to an otherwise typically exempt project,' as opposed to the typical circumstances in one particular neighborhood") (citation omitted.) 42 Id. at 1089.
45 Packet p.59.
46 See 14 Cal. Code Regs. 15303.
Appeal 15
work. In terms of size, this is not the typical ADU or single-family home project contemplated by the Class 3 exemption. This is an unusual circumstance.
Similarly, the proposed site sits on an exceedingly steep slope (on average 56% throughout the building site)*7 in a specially zoned hillside area that has experienced multiple recent landslides and is in a debris source area, per General Plan Fig 8-4 (see below).
Figure 8-4: Debris-Flow Sources
Approximate sources of
• debris Bow triggered during
the storm of 19H2
Principal predicted debris-flow
source at eas
— Planning Area
- Caty Limits
47 Packet p.203.
Appeal 16
It is also in the landslide zone, per General Plan, Fig. 8-1 (see below).
San Andreas Fault
¿ Alqwst Pnolo Zone
Landslide Zone
Laquefaction Zone
City Limits
Planning Area
The site is moreover a flag lot that both abuts an undeveloped natural area and necessitates serious construction mere feet away from a neighbor's home. In sum, the location is highly unusual for the construction of the typical single-family home granted Class 3 exemption.
Because of both its unusual size and location, unusual circumstances under this exception are present.
While the report elsewhere repeatedly acknowledges the steeply sloping topography of the project site and the "significant challenges for minimizing excavation" that this entails, 4 the CEQA analysis ignores them completely. The steeply sloping topography of the site - featuring an average grade of 56% at the building site, 49 - and the attendant issues it presents are two of the defining features of this proposed development and present both unusual circumstances and a 48 Packet pp. 51, 55, 65 ,67.
49 Packet. p. 203.
Appeal 17
reasonable possibility of significant impact from the extensive excavation and construction on the slope.
For instance, landslides have occurred recently in the area, including in the immediate vicinity of the proposed site, as shown in the map below (General Plan, fig. 8-5):
In the very least, the failure to compare the slope's gradients to that of other properties in the area and to other properties in the wider exempt class—and the failure to analyze whether such "significant challenges" show "significant environmental impacts"—is a glaring deficiency in the Commission's CEQA analysis which the agency must remedy.
To make its finding that there are no unusual circumstances related to geotechnical issues, the staff report points to the updated Geotechnical Report paid for and submitted by the applicant.
However, the Commission does not appear to have done any independent analysis - either of the geotechnical issues related to the project or of applicant's Report itself.
Further, the fact that the Commission could only approve this permit with the addition of multiple conditions and mitigation measures suggests that this proposed project is highly unusual, with a reasonable possibility of significant environmental effects.
IX. Without Categorical Exemption, Initial Study Required Since no exemption applies, an Initial Study must be conducted in order to comply with CEQA.S®
X. Requested Action
Upon the receipt of an appeal, the Council may hold a public hearing, using the same procedures as set forth in Sec. 9-4.3302 or refer the appeal back to the Commission for reconsiderationS! Upon considering the appeal, the Council may approve, deny, or modify the site development permit. 2 Review is de novo.
We ask that the Council grant the appeal and direct that the Permit be denied, find that the Project is not eligible for a Class 3 Exemption, that Unusual Circumstances apply, and that the 50 Cal Code Resources, tit. 14, § 15063.
51 Sec. 9-4.3208(b).
52 Sec. 9-4.3208(c).
Appeal 18
Project would require an application for a variance in order to proceed. In the alternative, we ask that it send the appeal back to the Commission for reconsideration, along with a noticed public hearing before the Commission. If unsuccessful on appeal, our client intends to file suit in court, seeking the requested action sought above, as well as attorneys' fees.
Respectfully submitted.
Rahul S. Kuza
Rachel Doughty
Counsel for Coalition
RESTORATION WORKSHOP
Historic Restoration and Preservation ~ Fine Finish Carpentry General Contractor. CA Lic. #836534
To: Vera Toth-Fejel
12/07/2025
RE: Submittals for Site Development Permit of the lot 13 behind your house As a general contractor who specializes in restoration of homes of high historic significance, in the demanding jurisdiction of San Francisco, I am no stranger to structural work on hillsides. The geological formations that exist beneath the peninsula are varied and each carries its own set of best practices for creating stable buildings and avoiding hazardous conditions for the surrounding community.
After reviewing the entire submittal package, I cannot over-stress how important is it to have a full team of independent design professionals along with the services of the both an independent special inspections firm and the city building department to act as checks and balances against a developer/contractor/owner taking shortcuts that could result in serious, negative impacts on the neighboring properties and the surrounding environment. This project contemplates an extraordinary amount of excavation in order to develop a driveway and building site on challengingly steep terrain, for a rather limited building site.
The project plans in no way make clear who that team would be. It appears to me that the developer intends to act as civil engineer, general contractor, architect and structural engineer.
In a project this complex and sensitive, these are inherent conflicts of interest. The developer appears to have licenses only as a civil engineer and as a general contractor. Their web site gives no indication whether they have any other licensed members on staff, or as a part of an extended collaborative team. Nor do they display their CSLB license number on their web site as they are required to do per California contractor license law. Thus, it is hard to know what their credentials are, which raises red flags for me. At a minimum, the project must have a set of signed/stamped plans from a licensed architect, and an accompanying structural set, signed and stamped by a licensed structural engineer. When you have independent design professionals, they can/should act as a check and balance on each other as they are all tied into the liability chain if the design or means and methods turn out to be faulty. If a developer is a one-stop shop, then they are merely overseeing themselves and can cut corners at will. With the materials presented thus far, I see no evidence of such an independent team.
Christopher Yerke, Proprietor
Tel. 415-596-0843 Office: 415-824-1850 Email: [email protected] Also fundamental to the project is the Geotechnical Engineer of record for the project. Within my experience, the geotechnical report looks okay but is presented as a set of recommendations for best practices, rather than as an enforceable requirement that the jurisdiction demands of the applicant. In my normal operating jurisdiction of San Francisco, a geotechnical engineer of record would be required for the project, to conduct oversight and observation of all aspects of excavation, drilling, engineered fill, drainage and pouring of piers and foundations. Among the items noted by the city as future requirements for obtaining a building permit, this is not mentioned, and you should have assurances that this is required. It is essential that the geotechnical engineer of record is not a "rubber stamp" for the contractor. The same holds true for an independent special inspections firm, which is generally retained directly by the property owner, and responsible for independent, special testing of all concrete poured as well as structural observation of reinforcing steel, hold downs in concrete, etc. And similarly, the structural engineer should be required to make structural observations. Granting a certificate of completion to the project without reports from all these parties should not be possible. What assurances do you have from the city that all of this must be in place? Equally concerning is the short amount of notice provided for the surrounding community to prepare and react to the hearing. That does not augur well for the transparency the developer will provide during the project. In our present era of climate change and the increasing intensity and duration of atmospheric rivers that California is experiencing, coupled with the ever-present seismic activity of the coast, I cannot overstate the need for adherence to best practices in all aspects of completing a project with this much soil removal, on slopes this extreme. This is an engineering-intensive project in which even the non-permanent aspects of construction, such as dust control and construction site drainage, cannot be taken for granted. Phasing the project for minimal potential weather impacts will draw the schedule for construction out longer than necessary for building on a more conventional site, increasing the time that construction impacts the neighborhood. It also increases the likelihood that there will be lapses in vigilance on the part of the developer and the city inspectors.
Again, Pacifica is not a jurisdiction in which I operate, but the fact that they would grant a site development permit, without full sets of plans, signed by the relevant professionals is surprising to me. In order to approve the development, it would seem logical to have the full scope in hand before proceeding down that path, rather than allowing them to make it up as they go along.
Once the development permit is granted, the public may have little enough visibility into the internal building permit processes and only has assurances that the city will require all requisite documents and will require all the necessary oversight. It is a disservice to the surrounding community to not provide a fuller picture up front.
Another matter of concern is the incompetence with which the 3D renderings of both the driveway and the western elevation as it would appear from Bayview Road were executed.
These were clearly done in a hurry and not by a competent professional. In particular, the rendering of the driveway as something akin to a freeway on-ramp, with a high retaining wall up to the level of Lot 7's 2nd floor windows is misleading and could only provoke misunderstandings. Those renderings do not really express what the engineering drawings for the driveway show how the true build and excavation of the driveway will appear. That sort of sloppy work in an approvals package for public review should provoke a need for them to go Christopher Yerke, Proprietor
Tel. 415-596-0843 Office: 415-824-1850 Email: [email protected] back to the drawing board to get it right. The planning commission and the community cannot properly review and comment when the materials presented are inaccurate.
Another concern is setbacks along the driveway. Originally, this plan seemed to rest upon using lot 6 as a shortcut to accessing lot 13 in the absence of the paper street access as originally conceived in the plotting of the subdivision. Seemingly, that required an easement to use that building site as a driveway. Perhaps this was to avoid the shoring requirements of cutting too close to the uphill foundations. I could not locate a full, concise history of all the transactions involved, but it somehow involved granting a planting easement to your up hill neighbors, of 13 feet along the north side of lot 6. Lots 6, 7 and 13 at the time had the same owner and your house was not yet built, so there would have been no need to negotiate anything with a downhill neighbor. The title history shows that eventually lots 6 and 13 were merged into a single lot, so it is no longer an easement. However, generally anything built upon a lot has required setbacks from the property line. To get around this requires a variance in most jurisdictions. The uphill neighbors are ceding back 6 feet of their planting easement, to allow the developer to comply with driveway width requirements for fire truck access. The developer wants to build the driveway right to the property line on your side. In effect, the uphill neighbors get the advantage of a 7 foot setback and you get none. I question whether that is actually legal in your jurisdiction. In most cases, it would be normal to require a setback from both property lines for anything constructed, as a buffer to the cut and fill work that will be done. You should have an attorney look into whether they are within their rights to construct their driveway and its accompanying downhill retaining wall right to the property line. To my eye, the uphill neighbors should be required to cede back more of their planting easement in favor equal setbacks on both property lines if the project is to be viable. I saw no evidence that the original owner recorded any variance for this at the time of negotiating the easement across lot 6 in 1974.
One last item.... there is a claim of mineral rights by three families shown in the title reports. One of those is your uphill neighbor. It there any potential weirdness to come about from excavations on the site, with three parties holding mineral rights, and none of them the property owner.
Maybe not your problem but strikes me as odd.
Let me know if you have additional questions.
Sincerely,
Christopher Yerke
Christopher Yerke, Proprietor
Tel. 415-596-0843 Office: 415-824-1850 Email: [email protected]