CITY COUNCIL
CLOSED SESSION SPECIAL MEETING
NOTICE AND AGENDA
Tuesday, May 21, 2024
4:30 p.m.
City Council Conference Room
200 Old Bernal Ave
Pleasanton, CA 94566
NOTICE IS HEREBY GIVEN , pursuant to section 54956 of the California Government Code, that a special meeting of the City Council of the City of Pleasanton is hereby called.
CALL TO ORDER / ROLL CALL
1. PUBLIC COMMENT – Comments are limited to three minutes and to only those items listed on the agenda.
2. ADJOURN TO CLOSED SESSION
CONFERENCE WITH LEGAL COUNSEL—ANTICIPATED LITIGATION
Significant exposure to litigation pursuant to paragraph (2) (d) of Section 54956.9:
One potential case: See April 23, 2024 letter from Bryan W. Wenter (attached)
ADJOURNMENT
Notice
Under Government Code §54957.5, any writings/documents regarding an open session item on this agenda and items received by the City Clerk’s Office by 12:00 p.m. on the day of the meeting provided to a majority of the City Council after distribution of the agenda packet will be available for public inspection on the City’s website https://www.cityofpleasantonca.gov/ and also at the Pleasanton Library located at 400 Old Bernal Ave., Pleasanton, CA 94566.
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I,T I LLER STARR
REGALIA RECEIVED
APR ?\ 202\
CITY CLERK OFFICE
1331 N California Blvd.
Suite 600
Walnut Creei. CA 94596
T 925 935 9400
F 925 933 4126
www.msrlegal.com
Bryan W. Wenter, AICP
Direcl Dial: S25 941 3268
bryan.wenter@msriegal-com
Aptil 23, 2024
VIA E-MAIL
Karla Brown, Mayor
City of Pleasanton
123 Main Street
P.O. Box 520
Pleasanton, CA 94566-0802
KBrown @cityof pleasantonca. gov
Jocelyn Kwong, City Clerk
City of Pleasanton
123 Main Street
P.O. Box 520
Pleasanton, CA 94566
pleasantoncityclerk@cityof pleasanton.ca. gov
Re Appeal of Planning Commission's Decision on P234599
Housing Development Project at 5976-5994 W. Las Positas Boulevard APN:941-2760-5
Dear Mayor Brown and Clerk Kwong:
We hereby appeal the Planning Commission's April 10,2024 decision to disapprove the above-referenced project-without making the findings required by law-by denying the applications for Tentative Tract Map and Design Review, filed as P23- 0599, pursuant to Chapters 19.56 and 18.144 of the Pleasanton Municipal Code.
This appeal includes the refundable appeal fee of $347 established in the City's current master fee schedule.
ln brief, the project consists of an application for a Vesting Tentative Map and Design Review for a housing development project that includes the demolition of two existing commercial buildings and construction of 146 multi-family residential units with 38 accessory dwelling units ("Projec1"), and with associated site improvements located at 5976 & 5994 West Las Positas Boulevard (APN 941-2760- 5) in Pleasanton's Hacienda Business Park ("Project Site"). The Planning Commission disapproved the Project, on recommendation from City staff, on the grounds that the Project is allegedly not consistent with the applicable General Plan land use designation and zoning for the Project Site and the Project is not seeking a Planned Unit Development rezoning.
For the reasons we have explained many times-in detailed correspondence to staff and at the Planning Commission's hearing-staff s recommendation and the Planning Commission's decision are incorrect on the facts, the law, and state housing policy.
As the Planning Commission staff report correctly notes, the Project Site's land use designation is Mixed Use/Business Park (Pleasanton General Plan Land Use Map 2005-20251and the zoning is Planned Unit Development - lndustrial/Commercial- Offices: Walnul Creek / Sen Fmncisco / N€wport Beach
TRLt-58837V919580.2
Karla Brown, Mayor
Jocelyn Kwong, City Clerk
Aptil 23,2024
Offices ("PUD-l/C-O") (Pleasanton Zoning Map), which designates the Project Site as Garden Office District ('OGPD'). But the staff repo( fails to acknowledge that the General Plan land use designation objectively allows residential development at 20 or more units per acre (General Plan Table 2-3), and despite that objectively allowed density the staff report claims the planning designation "defers" to the existing PUD zoning, which does not allow residential land uses (i.e., housing) at any density.
The underlying PUD and OGPD zoning are basic office classifications and they do not allow residential uses. While the OGPD states that it conditionally allows nursing homes and assisted living facilities, and it organizes those uses in a chart under a "residential" heading, nothing in the City's land use regulalions substantively treats such uses as residential or housing (see, e.9., Land Use Element at p. 2-23 [explaining that residential uses include detached and attached single-family homes, duplexes, townhouses, condominiums, and apartmentsl and Land Use Element Table 2-5 (explaining the amount of land in the City designated for various land usesl). This is consistent with other jurisdictions in California and even with the state itself, which treats uses like nursing homes and assisted living facilities as institutional and not as residential or housing. We are unaware of any jurisdiction, including Pleasanton, that treats nursing homes and assisted living facilities as residential land uses such as housing and the "residential" heading in the City's chart does not change this fact.
The Planning Commission staff report and the underlying recommendation and decision are thus incorrect on the facts, as the General Plan land use designation for the Project Site plainly allows housing and the zoning classification does not.
But the staff report, recommendation, and decision are also incorrect on the law.
Even without the benefit of state housing law, which will be addressed in more detail below, longstanding and controlling principles of basic California land use law make clear that the plan is the constitution for development and the zoning must follow the plan, The state's Planning and Zoning Laws expressly require the land use element to affirmatively designate the proposed general distribution and general location and extent of the uses of the land for housing and other categories of public and private uses of land. Moreover, the land use element itself must provide for the standards of population density and building intensity for the various districts and other territory covered by the plan. (Gov. Code $ 65302(a)). State housing law does not allow general plan land use elements to "defe/ to zoning ordinances on these critical and mandalory issues.
This is simple blackletter law, and it is reinforced by a long line of cases such as Lesher v. Walnut Creek, 52 Cal.3d 531 , 540-41 (1992), which make clear that the zoning must conform to the plan and thus that "[t]he tail does not wag the dog." Again, nothing in California law allows a city's general plan land use element to "defer" to the zoning or for the zoning to othenrrrise direct the plan, particularly with respect to the mandatory contents of a city's land use element requiring the TRLt-5883n2919580.2
Karla Brown, Mayor
Jocelyn Kwong, City Clerk
Aptil23, 2024
provision of housing at densities provided in the land use element. Undet lraditional land use consistency doctrine the zoning does nol trump the plan.
Moreover, beyond that unassailable and controlling doctrine, as set forth in the Housing Accountability Act (Gov. Code S 65589.5; "HAA")-the state's premier housing production law-the City may not lawfully disapprove a project that meets applicable and objective land use standards and criteria without making the difficult- to-make health and safety findings mandated by law. Subdivision O(1)of the HAA directs that a decision to disapprove or reduce the density of a project that complies with "applicable, objective general plan, zoning, and subdivision standards and criteria, including design review standards' A!€L.lOe based on wriften findings supported by a preponderance of the evidence in the record that (1 ) the project would have "a specific, adverse impact upon the public health or safety" and (2) that there is no feasible method to satisfactorily mitigate or avoid this adverse impact. (Gov't Code S 65589.5(jX1)). The HAA defines a "specific, adverse impact" to mean "a significant, quantiflable, direct, and unavoidable impact, based on ob.iectjve, identified written public health or safety standards, policies, or conditions as they existed on the date the application was deemed complete.' (Gov't Code $ 65s8e.s(jx1 xA)).
Section 65589.5(j) thus requires cities to determine whether a project complies with the applicable, objective general plan, zoning, subdivision, and design standards.
The HAA defines the term "objective' to mean standards that involve no personal or subjective judgment by a public official @lthat are also uniformly veriliable by reference to an external and uniform benchmark or criterion available and knowable by both the development applicant or proponent and the public official. (Gov. Code S 65589.5(hX9)). Cities must make this determination based on a "reasonable person' standard, (Gov. Code $ 65589.5(fX4)).
Accordingly, if a housing project complies with applicable, objective general plan, zoning, subdivision, and design standards in the eyes of a reasonable person, the prolect cannot be disapproved or conditioned on a lower density unless, based on a preponderance of the evidence in the record, it would have a "specific, adverse impact" upon public health or safety and there is no feasible way to mitigate that impact without disapproving the project or requiring that it be built at a lower density. lf a city's disapproval or conditional approval is challenged in court, the burden is on the City to prove its decision conformed to all the conditions specified in the HAA. (Gov. Code S 65589.6).
The courts have explained that the HAA'S findings constitute the "only" grounds for a lawful disapproval of a housing development pro.iect, (Nolth Pacifica, LLC v. City of Paclfica (N.D.Cal .2002\ 234 F.Supp.2d 1053, 1059-60, disapproved on other grounds in Nodh Pacifica LLC v. City ot Pacinca (2008) 526 F.3d 478; see also Sequoyah Hills Homeowners Assn. v. City of Oakland (1993) 23 Cal.App.4th 704, 715-16). Moreover, the HAA creates such a "substantial limitation" on the government's discretion to deny a permit that it amounts to a constitutionally TRL|-58m42919580 2
Karla Brown, Mayor
Jocelyn Kwong, City Clerk
April23, 2024
protected property interest. (Norlh Pacifica, LLC v. City of Pacifica, supra,234 F.Supp.2d at 1059).
The City has not made these required findings and there is no evidence to support such findings based on any standard of review, including the HAA'S required preponderance of the evidence standard.
ln addition to the foregoing, subdivision 0Xa) of the HAA provides as follows:
For purposes of this section, a proposed housing development project is not inconsistent with the applicable zoning standards and criteria, and shall not require a rezoning, if the housing development project is consistent with the objective general plan standards and criteria but the zoning for the project site is inconsistent with the general plan . . . [T]he local agency may require the proposed housing development project to comply with the objective standards and criteria of the zoning which is consistent with the general plan, however, the standards and criteria shall be applied to facilitate and accommodate development at the density allowed on the site by the general plan and proposed by the proposed housing development project.
(Gov. Code S 65s89.50X4)).
Thus, under the first senlence of subdivision 0X4), if the zoning is inconsistent with the plan-and the zoning here is inconsistent because the General Plan allows housing at 20 or more units per acre while the zoning does not allow any housing at all (and nursing homes and assisted living facilities are not housing under the City's regulations or state lawFthen the City cannot lawfully require a rezoning.
Moreover, under the second sentence of subdivision O(4), which City staff have never acknowledged and was not addressed in the Planning Commission's staff report, the City is required to facilitate and accommodate the Project at its proposed and allowed aeneral plan densitv. lnstead of doing so here, City staff recommended and the Planning Commission decided the Project should be disapproved based on an incomplete and inaccurate description of the facts and the law, contrary to the pro-housing requirements and intent of the HAA.
As noted above, the General Plan objectively allows residential development (i.e., detached and attached single{amily homes, duplexes, townhouses, condominiums, and apartments) on the Project Site at a density of at least 20 units per acre (the Project proposes approximately 22 units per acre and thus meets this objective requirement) and the OGPD zoning does not allow any housing at all. Thus, the zoning is indeed inconsistent with the Plan, at least for purposes ofthe HAA as mandated by subdivision 0X4). Moreover, underthe second sentence of subdivision O(4) of the HAA, the City has a legal obligation to facilitate and accommodate lh.e Project at its proposed and allowed general plan density Even if the law on these issues was unclear-and we believe it is indeed clear-the HAA establishes statewide policy applicable to every city and county in Califomia mandating that "this section be interpreted and implemented in a manner to afford TRLt-58837V919580 2
Kada Brown, Mayor
Jocelyn Kwong, City Clerk
Aptil23, 2024
the fullest possible weight to the interest of, and the approval and provision of, housing.' (Gov. Code S 65589.5(a)(2XL)). Staffs recommendation, predicated on the false notion that the General Plan "defers" to a zoning ordinance that does not allow housing and where the General Plan itself objectively does allow housing, and the Planning Commission's decision to disapprove this Project based on that recommendation are deeply contrary to this pro-housing policy mandate.
For the foregoing reasons and other reasons provided in the administrative record, we hereby appeal the Planning Commission's decision, which is incorrect on the facts, the law, and state housing policy, and which did not make and could not have made the mandatory health and safety findings required by the HAA. We respectfully request that the City Council grant our appeal, allowing this Project to proceed without a discretionary legislative PUD rezoning, which will allow this unopposed Project to seek and obtain the required Tentative Map and Design Review approvals.
We regret the need to say this, but we must note that there are serious consequences for the City should it improperly disapprove this Project, as staffs recommendation and the Planning Commission's decision would have it. Those consequences include tight mandatory deadlines and costs for preparing an administrative record (Gov. Code S 65589.5(mX1)), mandatory attorney's fees and costs to a prevailing plaintiff (Gov. Code S 65589.5(k)(1)), and mandatory fines of $10,000 per unit (Gov. Code S 65589.5(k)(1)) with a mandatory five times multiplier (Gov. Code S 65589.5(l)). There is no known opposition to this Project, the laws squarely favor it, and these potential consequences are all easily avoidable.
We have endeavored to work with staff to understand these issues and thus to process this unopposed Project without a discretionary legislative rezoning via PUD and thus without this underlying disagreement. We find it unfortunate that this appeal is necessary, and we hope the City Council will understand and agree that a PUD cannot lavvfully be required here and that this appeal must be granted. By granting this appeal, TTLC'S Preliminary Application would remain valid and in effect and staff would be required lo commence to undertake the required CEQA analysis for the Pro.iect. We look foMard to discussing these issues in an appeal hearing no later than 40 days from the date of this letter. (PMC S 1 8.44.130), Sincerely,
MILLER STARR REGALIA
Brgan-'W. WQ^fLr
Bryan W. Wenter, AICP
BWWKIi
Kelley Rutchena, Director of Entitlements, Bay Area and Sacramento R€ionscc TRLt-58837\2919580.2
THE CITY OF Communitv DcvcloDment DcDartmcnt I Planning Division 200 Old Bemal Avenue I P.O. Box 520, Pleasanton, C.A 94566 925-93 t-5600 I
podGqcityofit lcasantonca.gov
PLEASANTON RECEIVED
2024 APPLICATION FOR DEVELOPMENT REVIEW
Application No(s).: _P23-0599 _ DateFiled: APR '1\ Nl\
I. CHECK T}?E OF APPLICATION S
trOver-height Fence Permit ($35)
!PC Determination ($2,081)
Preliminary Review
trNo Hearing ($0)
DSB 330 ($t,527)
trWith Hearing ($2.01 I )
PUD (Planned Unit Development)
Residential
!l unit ($4,161)
fl2-5 units ($ 10.403)
n6-15 unts ($20,807)
fl l6+ units ($27,742)
Commercial
D0-20,000 sq ft ($4.161)
tr20,001-60,000 sq fr ($10,403 )
!60,001- 100,000 sq ft ($20,807)
tr 100,001+ sq fi ($27,742)
PUD Modifications
Al{inor erjs ting re s ident ial
trMinor ($694)
DMaior ($2,774)
Rezonins -
trwithout PUD ($17,M8)
!with PUD ($2,774)
(s r39)
trS tgn gn Review ($4t15)
ESpecilic Plan/Specific Plan Amend.
(257o ofconsultant costs - min. $2,649)
Small Wireless Facility
trPublic ROw ($3.779)
DPrivate Propeny ($3.552)
DPole Lic. Agreement ($295)
Subdivision Map
ETentative Tract Map ($6,436)
nMinor Subdivision ($694)
OTraffic Study Review ($902)
Use Permits
DConditional ($1,040)
! Minor Conditional ($694)
!Pets (9277)
ETemporary Conditional ($ I 94)
EAdministrative Temporary ($35)
Variance
aGeneral ($3,135)
DDeveloped Residential Lot ($694)
! Williamson Act ($2,440)
Dother
U. GENERAL DATA REQUIRED
A. Name of Applicant (Please Print)
B. Addrcss or Location of Property:
TTLC Pleasanton - Las Positas, LLC
C. Asscssor's Parcel Number(s): 941-2760-5
7.29 E. Current Zoning GP-Mixed Use Z-PUD ,, Proposed Zoning Commercial/Otfice Building
Redevelopment of existing commercial to residential
community comprised of 146 three story townhomes each with two car garages.
5976 & 5994 W. Las Positas Blvd.
G. Existing Usc of Property
H. Description of Proposal:
(Rekr to the qpprcpriate
(Continue on separate shect if necessary)
for required submittal infomdtion that musl accompanr this .tpplicarion.) (Continued on reverse)
12t26/2023
D Adrninistrative Design Review ($347)
EeppeallofCaseP23'0s99 11$3471
DBeekeeping ($208)
ECondominium Convenion ($3,828)
Desim Review
-Mlnor up n $25,000 vulue ($147)
AMajor over $25,000 value ($2,2891
Environmental (CEOA) Fees
nStaff review of Consultant Work
(257o of consultant costs)
fIEIR ($4,05 r.25)
trEnv. Doc - CRP ($1,377.25)
DMit.Alegative Declaration ($2,9 16.75)
nCounty Clerk Processing Fee ($50)
DGeneral Plan Amendment ($20,626)
Dcrowth Management ($ l, I 09)
Ilome Occupation/Cottase Foods
ENon-exempt - no hearing ($139)
ENon-exempt - with hearing ($347)
Housing Site Compliance Review
850 units or less ($9,519)
n5l units or more ($10,475)
ELot-Line Adiustment ($596)
trOutdoor Dining,/Display ($ I94)
D. Site Arca (acres/sq. ft.):
III. AUTHORIZATION OF PROPERTY OWNER AND OWNERS ASSOCIATION J. PROPERTY OWNER: In signing this application, I, as the property owner, havc full legal capacity to. and hereby do, authorize thc filing of this application. I understand that conditions of approval are binding and agree to be bound by those conditions, subjecl only to thc right to object at the hearings or during the appeal period. I certiry that the information and cxhibits submitted are true and cqrrect.
Nanrc Tony Bullock Tclcphone
Company
Address:
Signature
BMP LPOP LLC F_ma.t. tony@ blackmountainproperties.com
Datc
K. OWI\ERS ASSOCIATION: ls the property subject to the rules or guidelines of a homeowners association (HOA) or a business owners association?
Q Yes (attach a copy ofthe associations response).
ONo
O The HoA6usiness owners association dgCug! revie* any proposed construction projects or us€ changes.
Association contact. James Paxson Tclcphone 925-734-6500 Hacienda Business Park Owners Associalion [email protected] Namc: Enrail Address
L. APPLICANT OTHER THAN PROPERTY OWNER: ln signing this application. l, as the applicant, represent to have obtained authorization from thc property owncr to file this application. I agree to be bound by conditions of approval, subjcct only to the right to object at the hearings on the application or during the appeal period. tfthis application has not been signed by the property owner, I have attachcd separate documentation of full legal capacity to file the application. I certiry that the information and exhibits submitted are truc and correct.
Nanre Kelley Rutchena Tclcphone 925-786-0770
Company
Address:
TTLC Pleasanton - Las Positas, LLC E_n,uil, [email protected] Signature: Ke{,teq Bnilma, D^," 412312024
M. NOTE ANY OTHER PARTY(IES) WHO SHOULD RECEIVE STAFF REPORTS AND NOTICE OF APPLICATION ON A SEPARATE SHEET AND ATTACH TO APPLICATION.
Namc Namc
Addrcss: Addrcss
Enail Email
l. thr copyright orvner, consenl to allolr proposed plans and/or documents to be digitalll shared with membersofthepublicuponinquirr'.Signat,,e:
lV. SCHOOL FEE AGREEMENT (If a residential project, answ€r the question below) Have you signed a School Fee Agreement with the Pleasanton Unified School District? I/'yes, please auach a copy ofthe signed qgreemenl.
O Yes ONo