INTRODUCTION:
Section I Introduction
Note: The applicant / developer is incorrectly identified on the Appeal Form.
The Applicants are Robert Benda and John Spenker.
APN 022-062-550 was purchased in April 2018. An architect, engineer, contractor with a long history of positive development and relationships in Pacifica was selected. The applicants began a slow and iterative development process.
From project inception to the present day, project design and subsequent iterations (feedback from Planning Commission, Planning Staff, and Community) have been developed in adherence to City's General Plan, Zoning Law, and other specific and area development plans subject to Planning Commission approval. The applicant has been asked to apply engineering and modifications to the project that go beyond planning guidelines and beyond the requirements for similar projects. The applicant has incorporated modifications knowing the positive outcome for both the project and the community. This includes but is not limited to:
● Installation of a full compliant turn around for emergency vehicles improving the safety of the community
● Enhanced water detention and drainage system
● Investigation of a mining claim
● Performance bond for construction of retaining walls
● Change to original design of building
● Assume responsibility for street damages all the way to the entry of Rockaway Beach ave where other heave vehicles may have access September 2020, the applicants door knocked all parcels with a shared property line with APN 022-062-550 as well as those parcels on the west side of Bayview Road - 19 parcels in total. Materials were provided in-person or left at doorsteps. There was at least one rental at that time, and the applicant connected with the parcel owner. The goal remains simple - establish transparency and cooperation. Copies of those materials are provided as part of this appeal response. Some highlights from the outreach are noted below:
● Partnership with Lot 4,5. The applicants learned that when Lots 7,8 was developed, illegal dumping of construction debris (confirmed and still located on the project site) and inadequate retaining wall structures resulted in soil movement and foundation damage to Lot 4,5. The owners of lot 4,5 obtained the existing easement from the prior owners of lot 6 in order to build retaining walls to preserve their foundation. The applicants partnered with Lot 4,5 to design a retaining wall solution that preserves their home and allows access to the project site.
1 ○ The project’s driveway solution provides mitigation for prior sub par construction practices.
○ The project’s water retention and reclamation provide a solution for run-off where there is none today.
● Partnership with Lot 67,68. Years of neglect and introduction of non-native plants (ivy) from Parcel B impacted a long standing native tree. Lot 67,68 owners connected to solve and remediate. The applicants paid for and removed the tree, debris, years of ivy overgrowth and also assisted with additional debris removal (Lot 67,68 old fence). Lot 67,68 provided access. The applicant and project provided a solution. Another example of collaboration and partnership.
● The outreach led to an introduction with Lot 7,8 (the appellant); where we met a few times to discuss the project and gain feedback.
The appellant chose to go silent; however the applicant remains neutral, open to collaboration in service to a project that serves the applicant and the community.
The applicant remains confident that Pacifica is an ideal location to build a home and raise a family. The Planning Commission and staff experts provide ongoing, iterative rounds of recommendations that inform project design and approach. Curiously, this might be the reason why the appellant notes there have been a lot of changes. They are right. Various modifications have been made and the appellant has had the opportunity to be directly involved over the past 7 years. The Planning Commission and staff are indeed the experts to provide oversight and approval of the project. As an applicant, we develop in alignment to established guidelines and Planning Commission feedback.
We iterate modifications and amendments for review and feedback.The City of Pacifica is the decision making body and the applicants and project are the receivers of decisions. We thank the City of Pacifica for the extensive time and commitment provided.
The applicants are committed to meeting all Pacifica laws and guidelines with respect to this project to ensure the safety of our community. If the City of Pacifica has identified additional areas where the project application has not met the city’s requirements since the project was approved, the applicant remains amenable to recommendation and modification; as has been the case from project inception to the present.
To that point, the applicant has spent 7 now going on 8 years partnering with the Planning Department and their staff experts to ensure that each and every requirement is met to make the least possible impact to our community.
To restate, the applicant has acquiesced to many of the city’s requests that were in excess of what is typically required for a single-family residence (fire truck turnaround, water collection system, etc.).
The applicant has retained a top notch design team for this project including an architect, an energy consultant, a civil engineer who will prepare the structural design when the time comes, and two geotechnical engineers. The 2 project plans and calculations have and will continue to be reviewed by the Pacifica Building Department, the City Engineers, the geotechnical engineer and a team of peer reviewers selected by the City. At such time as a contractor is selected for the construction of the project, the applicant will choose a well qualified and experienced contractor. Moreover, during construction, regular inspections will be conducted by the city to ensure compliance with the plans and a safe and secure project.
The appellant further implies that a variance is required for the project which is incorrect. The Planning Commission and the expert staff have confirmed the project meets all required setbacks, height limits, lot coverage, and all General plan and zoning regulations.
Section II The Difficulty Of Developing The Lot Is A Result Of Choices Of The Landowner And Their Predecessors In Interest.
Applicant Reply:
The original subdivision had access to the lot via Calera Terrace, which is a paper street that has not been developed. Lot 13 was essentially landlocked. To obtain access, lot 6 was purchased by previous owners and annexed to lot 13. An owner of land that abuts a street has an easement in that street for purposes of ingress and egress to and from their property to the next intersecting public roadway. Bachich v Board of Control (1943) 23 Cal. 2d 343, 352. Thus, the applicant has a legally recognized right to access their property via Bay View Road. While previous owners granted an easement to the neighbor, that situation has been remedied by modifying the easement, and a suitable driveway acceptable to the Fire Department has been designed which satisfies all applicable code and setback requirements.
RESPONSE TO APPEAL:
Section III Site Development Permit Exclusion Criteria Apply The project complies with the nine requirements to issue a permit. For the items raised by the appellant, the project also complies.
A. Exclusion Criterion 3
○ That insuf icient 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
○ Applicant Reply:
The landscape plan has been approved by the city. The site area is 26,055 sq. ft. out of which 15,155 remain as green natural or landscaped areas. The driveway access is sufficiently landscaped in a very similar manner to the lot immediately across the street a shown on the following picture
3 The visual impact depicted by the previously proposed rendering, is incorrect.
Our rendering consultant used a previous version of the design which resulted in the elevated driveway. Due to oversight, the rendering was not checked against the actual topographic map and grading plan and thus resulted in a very unsightly driveway. The correct design has now been rendered based on a true terrain model and the result is much less impacting as shown below.
Terrain modeled
4 Rendered entrance
Prelimminary
Appellant further claims that the ADU is constructed overlooking the house on lot 16, which is incorrect. The ADU is actually lower than the adjacent house. The second-floor windows on the house on lot 16 are actually higher than the windows on the ADU. Furthermore, the closest corner of the ADU to the house on lot 16 is at least 30 feet away.
The tree adjacent to the neighbors property is a Monterey Pine identified in the arborist report as tree # 10 and it is deemed to be in Fair/poor condition.
Removing a tree that is in poor condition and replacing it with a better suitable species is the right thing to do. Furthermore, the neighbor is complaining that the 5 new building will deprive them of the western light. The tree would do just the same. Removing the tree enhances the light flow into their house.
B. Exclusion Criterion 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
○ Applicant Reply:
Appellant claims that insufficient setbacks are provided. Regardless of where the front is considered, the building meets the required set backs. ● Front set back to Bayview side property line is 34 ft ● Rear set back to lot 16 property line is 20 ft
● Side set back to Rockaway Beach Ave. side property line is 15’-6” ● Side set back to Calera Terrace is 38’
The driveway had incorrectly depicted a tall retaining wall adjacent to the neighboring house. The updated rendering based on the submitted grading plan shows the actual condition.
Existing condition
Incorrect depiction
6 Correct driveway
Based on the above Driveway design clarification, the light to house on lot 7 is not impacted.
There is no retaining wall taller than 4 feet on the right side of the driveway adjacent to the neighbor’s property, in fact, there are no walls in front of the house itself. The previous rendering was erroneous as described elsewhere in the report.
Staff did what the code requires: Sec. 9-4.254. - Lot line, front. "Front lot line" shall mean, in the case of an interior lot, a line separating the lot from the street and, in the case of a corner lot, a line separating the narrowest lot frontage of the lot from the street.
The appellant also claims that the western light will be blocked by the new building. The peak of the new building’s roof is 3.5 feet lower than the house on lot 16. Furthermore, the separation between the proposed building and the house on lot 16 is 30 ft at the northern end and 45 feet at the southern end. Those separations allow for an uninterrupted daylight plane
7 As already discussed on several occasions, installing story poles would require substantial vegetation removal that without a proper drainage and erosion control system would be detrimental to the area.
C. Exclusion Criterion 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 ○ Applicant Reply:
Hillside construction is typical of Pacifica. This project does not create any unnecessary grading. The fire truck turnaround, which benefits the entire area, is the primary reason for the grading.
Furthermore, the city did a very thorough job assessing the project with regards to the natural grade of the site. The original plan included a single level main floor to accommodate one of the future residents of the home who has Post-polio syndrome and has difficulty navigating stairs. In order to follow the natural grade of the hillside, the current design slopes the main floor down the hillside via a series of stairs. This was a concession made to ensure the requirements were met.
D. Exclusion Criterion 8
○ (8) That the proposed development is inconsistent with the City's adopted Design Guidelines
○ A.2. "Building placement should take into account
potential impacts on adjacent property. Existing views, privacy... should be preserved wherever possible."
i. Applicant Reply:
The building is located with large setbacks to minimize the impact on adjacent properties. No views or daylight are impaired by the proposed structure.
○ 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 height 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."
i. Applicant Reply:
The building's size is comparable to many homes in Pacifica and the Rockaway Beach area. There are other homes located similarly behind homes along Rockaway Beach Ave. The main house is only 3180 sq. ft which is smaller than homes in the vicinity. The ADU is not subject to 8 design review and should not count towards the area comparison. ADUs area increases are mandated by state law.
1. 125 Bayview Rd 3,300 sq. ft.
2. 741 Rockaway Beach Ave 3,650 sq. ft neighboring lot
3. 743 Rockaway Beach Ave 3000 sq. ft.
4. 647 Rockaway Beach Ave 3370 sq. ft
5. 907 Pilar Pl 3270 sq. ft.
○ 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."
i. Applicant Reply:
The design meets the guidelines as it steps down the hill, features large roof breaks, and provides ample articulation. Provides large setbacks and privacy for adjacent homes.
○ 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."
i. Applicant Reply:
The landscape plan has been reviewed by the city. Landscaping is proposed along the driveway to plant climbing vines to cover the retaining wall. A strip of landscape is also proposed at the center of the driveway.
E. Exclusion Criterion 9
○ That the proposed development is inconsistent with the General Plan, Local Coastal Plan, or other applicable laws of the City."
i. The driveway violates Section 9-4.28 l 3(i)
1. Applicant Reply:
Section 9-4.2813(i) provides that single-family residential driveways on lots with more than fifty (50′) foot frontages may exceed the maximum driveway width requirement if the purpose of the driveway is to create more off-street parking or conform to the requirement of "swing" type parking, as permitted by applicable provisions of this Code, but in no event shall the driveway access exceed more than fifty (50%) percent of the total lot frontage or forty (40′) feet, whichever is less. This section does not require that all driveways serving single-family residential lots be limited to the lesser of 50% of the total lot frontage or 40 feet.
Similar homes are built in the same manner.
a. 154 Bayview Rd
b. 741 Rockaway Reach Ave
9 c. 743 Rockaway Reach Ave
d. 749 Rockaway Reach Ave
e. 891 and 893 Calera Terrace
ii. The driveway also violates Sec. 9-4.2813(e)(l)
1. Applicant Reply:
The driveway is identical to the property across the street. Flag lots have different regulations. Pacifica code 9-4.2813(e)(l) points to Cal Fire Code. According to Section 503.1.1 of the Cal Fire Code, the fire code official can increase the 150 foot requirement if any of the following are met: the building is equipped with automatic sprinklers or there are not more than 2 group R-3 or group U occupancies. The proposed project meets both of these requirements.
iii. The extensive construction on slopes/grades above 50% violates local land use codes, which incorporate the California Building Code
1. Applicant Reply:
The site slope does not exceed 50%. The correct slope is 49.23% using the most stringent formula required by the City. Other properties are built on the face of the same slope, in fact adjacent to the subject property
a. 741 Rockaway beach ave
b. 743 Rockaway beach ave
c. 749 rockaway beach ave
iv. 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 1. Applicant Reply:
Two separate firms prepared soils reports and both deemed the site suitable.
v. The project is also inconsistent with multiple other of the General Plan's guiding policies, and implementing policies for seismic and geologic hazards:
1. SA-1-2: Prohibit development in areas of mostly landslides or very high liquefaction risks... or on slopes 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. a. Applicant Reply:
A full and comprehensive geotechnical report has been
prepared.
2. SA-1-6: Prohibit mitigation measures for potential geotechnical hazards if those measures could adversely af ect surrounding property, including... adversely af ect public health, safety, and welfare. 10 a. Applicant Reply:
None of the geotechnical related work will impact the
public or surrounding properties
3. SA-1-7: Require erosion prevention of hillside areas by revegetation or other acceptable methods.
a. Applicant Reply:
A comprehensive erosion control plan is to be prepared, reviewed by the City and city consultants and by the
geotechnical engineer.
4. SA-1-9: 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 … a. Applicant Reply:
This is not a hazardous area.
5. C0-1-15: Enable natural draining by reducing the amount of impervious surfaces on a development site, where feasible.
a. Applicant Reply:
The project enhances the drainage conditions as it is
treated as a regulated project where drainage is
scrutinized more accurately.
Section IV Project Not Incompliance with Public Notice Requirements Applicant Reply: Notices are published by the City and to our understanding they were done as required.
Section V Project Not In Compliance With Setback Requirements Applicant Reply: Project complies with all setbacks. Driveways and flat works do not have any set back requirements. The retaining wall described is nonexistent. The previously submitted rendering did not depict the information provided in the grading plan.
Section VI Other Grounds For Appeal
A. Calera Terrace Access
a. Applicant Reply:
i. This item was covered in the hearing on April 1 2024 and between applicant and City Planning via design iterations.
ii. Developing Calera Terrace is a large project that involves many owners and would actually cause more environmental issues as a larger area adjacent to undisturbed land would be impacted.
B. Inconsistencies between architectural plans and renderings a. Applicant Reply:
Renderings have been updated to match the actual terrain and site conditions.
C. xLarge size
11 a. Applicant Reply:
There are many similar size homes in the area and it complies with the mega home ordinance that the city has implemented.
D. Building w/out neighbor access
a. Applicant Reply:
There is no need to access any of the neighboring properties to build on the site.
E. Construction traf ic/road degradation
a. Applicant Reply:
Many houses have been built in the area, this one will not create any different impact.
F. Security Bond
a. Applicant Reply:
This condition is to be determined by the City.
Section VII Project Description Inadequate under CEQA
A. Applicant Reply:
The project has always been the same. Build a single-family home and an ADU. Any alterations to the plans that have been submitted to the city on multiple occasions have been made at the request of the city. If the commission feels that the conditions identified in the December 1, 2025 meeting alter their approval decision, then the commission can indicate that.
Section 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.
B. Class 3 Exemption Does Not Apply
C. The Unusual Circumstances Exemption to the Class 3 Exemption Applies a. Applicant Reply:
The Project is categorically exempt from CEQA. The project qualifies as a Class 3 (New Construction or Conversion of Small Structures) categorical exemption, CEQA Guidelines Section 15303 and a Class 32 (In-Fill Development Projects) categorical exemption, CEQA Guidelines Section 15332. A designation that a class of projects is exempt reflects a determination by the Secretary of the Natural Resources Agency that “the environmental changes typically associated with projects in that class are not significant effects within the meaning of CEQA.” Berkeley Hillside Preservation v. City of Berkeley (2015) 60 Cal. 4 th 1086, 1104.
Section 15303 (New Construction Conversion of Small Structures) states in relevant part: Class 3 consists of construction of a limited number of new, small facilities or structures: (a) one single-family residence, or a second dwelling unit in a residential zone. In urbanized areas, up to three single-family residences may be constructed or converted under this exemption. And under subsection (e) accessory (appurtenant)structures including garages, carports, patios, swimming 12 pools, and fences. The proposed project fits into the scope of the Class 3 exemption in that it involves the construction of a single-family residence, for the purposes of CEQA, in an R-1-H zoning district where the Pacifica Municipal Code authorizes single-family residential uses. Moreover, as the Planning Commission previously determined, none of the exceptions to application contained in Section 15300.2 of the CEQA Guidelines apply to this project.
Section 15332 (In-Fill Development Projects) provides that Class 32 consists of projects characterized as in-fill development meeting the conditions described in this section.
(a) The project is consistent with the applicable general plan designation and all applicable general plan policies as well as with applicable zoning designation and regulations.
(b) The proposed development occurs within city limits on a project site of no more than five acres substantially surrounded by urban uses. (c) The project site has no value, as habitat for endangered, rare, or threatened species.
(d) Approval of the project would not result in any significant effects relating to traffic, noise, air quality, or water quality.
(e) The site can be adequately served by all required utilities and public services.
The proposed project fits within the scope of a Class 32 exemption in that: (a) the project is consistent with the applicable general plan designation and all applicable general plan policies as well as with applicable zoning designation and regulations;(b) occurs within city limits on a site less than five acres substantially surrounded by urban uses; (c) the site has no value as habitat for endangered, rare or threatened species; (d) approval of the project will not result in any significant effects relating to traffic, noise, air quality or water quality and (e) and the site can be adequately served by all required utilities and public service Notwithstanding the same, the appellant argues that the combination of site topography, geology, multiple building types (single-family home, garage, and ADU), and high levels of excavations, grading and engineering work bring this proposed development out of Class 3 exemption. The Coalition is mistaken.
If there is a reasonable possibility that an activity will have a significant effect on the environment due to “unusual circumstances” an agency may not find the activity to be categorically exempt from CEQA. 14 Cal Code Regs §15300.2(c).
This exception applies only when both unusual circumstances and a significant impact as a result of those unusual circumstances are shown. Berkeley Hillside Preservation v. City of Berkeley (2015) 60 Cal. 4
th 1086, 1104. The California
13 Supreme Court’s decision in Berkeley Hillside Preservation also described a second alternative means to establish the unusual circumstances exception:
through convincing proof that the project will have a significant effect on the environment. Id. at 1105.
Under the unusual circumstances exception, the inquiry relating to the project’s environmental impacts is not whether the project will have an adverse impact on some persons but whether it will adversely affect the environment of persons in general due to unusual circumstances. San Lorenzo Valley Community Advocates for Responsible Educ. v. San Lorenzo Valley Unified Sch. Dist. (2006) 139 Cal. App. 4
th 1356, 1392.
Here, contrary to the assertions of the appellant, there has been no showing of unusual circumstances or of a significant effect on the environment. The proposed house is not unusual in size or location (it is located in a single-family residential development), and the excavations, grading and engineering work are not unusual nor do they pose a danger to adjacent properties. .
The Geotechnical Report dated July 10, 2024 by the applicant confirms there are no unusual circumstances related to geotechnical issues that would qualify as unusual circumstances or demonstrate that the project would have a significant effect on the environment. To the contrary the Geotechnical Report demonstrates that this project can be safely constructed and will not have any significant effect on the environment. And as such, this project is exempt from CEQA. See Berkeley Hillside Preservation v. City of Berkeley (2015) 241 Cal. App. 4 th 943
(court of appeal after remand from Supreme Court decision found single family residence’s large size (6,478 square-foot house with an attached 3,394 square foot 10-car garage) and its location on a slope with approximately 50 percent grade in an earthquake-prone area near buildings with unique character did not trigger the unusual circumstance exception); Association for Protection etc.
Values v. City of Ukiah (1991) 2 Cal. App. 4
th 720, 736 (drainage concerns were
adequately addressed by standard provisions of Ukiah’s building code and did not amount to unusual circumstances).
Nor does the fact that the Planning Commission imposed certain conditions upon its approval of the proposed project change this analysis. Features built into the design or operation of a project that will reduce or avoid an environmental impact that might otherwise occur are not treated as mitigation measures that would preclude a categorical exemption. See Berkeley Hillside Preservation v. City of Berkeley (2015) 241 Cal. App. 4
th 943, 961 (court rejected argument that a
construction traffic management plan was an impermissible mitigation measure); Wollmer v. City of Berkeley (2011) 193 Cal. App 4
th 1329, 1352 (developer’s
agreement to dedicate land for a turning lane that improved the project for the benefit of the community was not a mitigation measure). 14 In sum, the project is categorically exempt from CEQA .
Section IX Without Categorical Exemption, Initial Study Required.
Applicant Reply:
Staff has made a thorough analysis of the project conditions and determined that the project is exempt from CEQA.
Section X Requested Action
Applicant Reply:
Any additional action will be determined by the City Planning Commission in response to the appeal.
APPENDICES
● September 15 2020 Applicant Community Outreach
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