SUPPLEMENTAL STATEMENT IN SUPPORT OF APPEAL
Chapter 14.28 – Appeal of Planning Commission Decision
700 Irwin Street Project
Submitted by Steven Bryant, Appellant
I. Purpose and Scope of This Supplemental Statement
This Supplemental Statement is submitted in support of the Notice of Appeal and Appendix A filed on January 15, 2026, pursuant to Chapter 14.28 of the Municipal Code.
It identifies additional record-clarity questions that have emerged through the appeal process and that may assist the City Council in its review.
For this project, the staff report, draft resolution, and conditions of approval were made available to the public shortly before the Planning Commission hearing on January 13, 2026. The appeal window closed five days later. Many of the questions identified here reflect the type of cross-referenced, statutory review that becomes possible only after the full record is available for examination. As a practical matter, that opportunity first arose during the appeal period itself. This is not a criticism of the process or timeline; it is simply the context in which these questions surfaced, and it underscores the role of appellate review in ensuring record completeness.
This submission is offered in the same spirit as the original appeal: not as criticism of the work already completed, and not as a request for any particular outcome, but as a contribution to the clarity and durability of the administrative record before the Council takes final action. It does not request analysis beyond what applicable statutes already require. Rather, it identifies statutory determinations that the law calls for and asks where the record reflects that those determinations were made. The intent is to ensure that the Council’s decision – whatever it may be – rests on a record that clearly documents the required reasoning.
II. Concessions and Waivers as Individual Statutory Determinations The approved project includes three concessions and eight waivers under the State Density Bonus Law. The statute establishes distinct legal standards for concessions and for waivers, and those standards operate on an individual, determination-bydetermination basis.
Supplemental Statement – 700 Irwin Street Appeal
For concessions, Government Code section 65915(d)(1) requires approval unless one of three conditions is established:
a) the concession does not result in identifiable and actual cost reductions necessary to make the development affordable;
b) the concession would have a specific, adverse impact upon public health or safety or the physical environment for which no feasible mitigation exists; or c) the concession would be contrary to state or federal law.
These are the statutory criteria that govern concession determinations, including circumstances in which a concession may not be granted.
For waivers, Government Code section 65915(e)(1) requires approval unless granting the waiver would:
a) have a specific, adverse impact upon public health or safety with no feasible mitigation;
b) have an adverse impact on a listed historical resource; or c) be contrary to state or federal law.
Because concessions and waivers are governed by distinct statutory standards, the statute contemplates that each concession and each waiver will be evaluated individually under its applicable criteria.
A request being identified or listed in the staff report is distinct from the record reflecting the City’s application of the applicable statutory criteria to that specific request and the basis for the resulting determination.
The question for this appeal is where the record reflects those request-by-request determinations under the applicable statutory criteria, including the “contrary to state or federal law” criterion, and the record basis supporting each determination. Those statutory criteria govern each request and define the findings the City must apply in acting on that request, whether the outcome is approval or denial.
III. The Base Project as the Foundation for the Density Bonus Analysis The density bonus framework for this project is built on a base project of 100 units. That base project – described as a hypothetical five-story, multi-family residential building complying with all objective standards for the T5N 50/70 district – establishes the Supplemental Statement – 700 Irwin Street Appeal
baseline from which the density bonus percentage, the number of permitted concessions, and waiver eligibility are derived.
Government Code section 65915(o)(6) requires the applicant to demonstrate how many units can be constructed in compliance with all applicable objective development standards, with average unit sizes comparable to the proposed project. The statute then requires the City to rely on that demonstration when calculating the density bonus.
Because the base-project unit count is the foundational input for multiple downstream determinations, the statute necessarily contemplates that the City will evaluate the applicant’s demonstration before relying on it.
The question raised here is not whether a base project was submitted, but where the record reflects the City’s evaluation of that demonstration – specifically, where the record shows how the City confirmed that the base project’s unit count and program assumptions (including unit sizing, building program elements reflected in the base concept, bicycle parking, and civic space requirements) are consistent with applicable objective development standards and other objective constraints applicable to the site, within the dimensional and programmatic limits of the T5N 50/70 envelope, and appropriate to serve as the baseline for the density bonus analysis.
IV. Affordable Unit Placement and Fair Housing Considerations The approved project locates all 30 affordable units on floors 5 through 11, while floors 12 through 17 contain exclusively market-rate units, including upper-floor units and all eight three-bedroom units. No affordable three-bedroom units are provided.
The concession for unit “type” was granted under Resolution 14890(C)(1), which permits clustering of affordable units when the City determines that such clustering furthers affordable housing opportunities. This standard calls for an affirmative City determination. While cost considerations are relevant, the resolution requires a determination that the clustering itself furthers affordable housing opportunities, which is a broader inquiry than cost alone.
Separately, the City is subject to existing Affirmatively Furthering Fair Housing (AFFH) obligations under Government Code section 8899.50 and Housing Element law (Gov.
Code § 65583(c)(10)). These obligations require public entities to take meaningful actions to promote inclusive communities and reduce barriers to inclusive housing choice.
Supplemental Statement – 700 Irwin Street Appeal
The questions raised here are:
1) where the record reflects the City’s affirmative determination, under Resolution 14890(C)(1), that the approved clustering pattern furthers affordable housing opportunities; and
2) where the record reflects any consideration of the City’s existing fair housing obligations in connection with that determination.
Because this standard turns on whether the clustering pattern itself furthers affordable housing opportunities (not simply whether the project adds housing overall), the record should identify the basis for that determination.
Separately, this section asks where the “contrary to state or federal law” standard of Government Code section 65915(d)(1)(C) was applied to this concession. Each of these determinations is required by existing law. The question is where they appear in the record.
V. Interaction Between the Amenity Concession and the AB 130 Balcony Restriction
One concession allows a disproportionate number of affordable units to lack private balconies relative to market-rate units. Separately, Condition of Approval 123(a)(iv), implementing Public Resources Code section 21080.66(c)(2), prohibits balconies facing the freeway on the project’s west elevation.
These requirements arise from different legal sources but operate on the same building and can compound one another. The AB 130 restriction eliminates balconies based on orientation; the amenity concession permits fewer balconies based on affordability status.
If the combined effect is a cumulative disparity in exterior access between affordable and market-rate units, that combined effect is relevant to the “contrary to state or federal law” determination required for the amenity concession under Government Code section 65915(d)(1)(C).
Private balconies are unit-level features affecting light, air, and private open space, and they are not interchangeable with shared amenities such as common terraces. That distinction matters when evaluating differences in unit-level features.
The question is where the record reflects consideration of the combined effect of these two provisions as part of the required “contrary to law” determination – evaluated in the context of the project as approved, including applicable conditions of approval.
Supplemental Statement – 700 Irwin Street Appeal
VI. Federal Property Interest and Sequencing of Federal Approvals The staff report and resolution acknowledge that the San Rafael Canal bordering the site is federally owned. The preferred plan includes elements cantilevering over the Canal, and Condition of Approval 20 appropriately requires that all necessary federal approvals be obtained prior to issuance of the first building permit.
Condition of Approval 35 separately requires compliance with all outside local, state, and federal agency regulations, including approvals from the Army Corps of Engineers. The resolution therefore contemplates the possibility of federal agency involvement.
If a federal permit, license, or approval is required, the issuing agency may have independent obligations under the National Environmental Policy Act (NEPA). AB 130’s CEQA exemption does not alter NEPA obligations triggered by a federal action.
The question presented is one of sequencing: whether the potential for federal approval conditioned by NEPA review – which could affect aspects of the preferred plan, including design or building form – has implications for the entitlement determination, or whether deferral to the building-permit stage is appropriate. The resolution addresses the possibility that federal approval may not be obtained; the question is where the record reflects the City’s sequencing rationale if a federal approval is required and is granted with conditions that could affect aspects of the preferred plan. Remand would provide a straightforward opportunity to clarify the City’s sequencing rationale in the approval documents, if the City determines clarification is warranted.
VII. State Highway Proximity and Transportation Review Sequencing The project site is immediately adjacent to the Highway 101 off-ramp as it transitions into Irwin Street. The Local Transportation Analysis projects 817 daily trips and 112 peak-hour trips, and notes that PM peak demand may approach the automated parking system’s processing capacity.
Condition of Approval 107 requires a Tier 3 Transportation Analysis (Non-CEQA) within five years after issuance of the Certificate of Occupancy, including evaluation of intersection operations and multimodal circulation. Condition of Approval 35 requires compliance with outside agency regulations, which may include Caltrans requirements for projects affecting state highway facilities.
The question raised is one of sequencing and record clarity: where the record reflects what traffic and circulation determinations, if any, the City is relying on at the entitlement stage, and how the City is distinguishing between information that is being deferred to post-occupancy and determinations that support the approval decision today. Relatedly, Supplemental Statement – 700 Irwin Street Appeal
where the record reflects whether Caltrans coordination was required and, if so, how it was addressed—or the documented basis for concluding it was not required—given the project’s immediate adjacency to a state highway facility and the deferral of comprehensive intersection analysis to post-occupancy.
VIII. Statutory Standard for Concession Cost-Reduction Determinations Government Code section 65915(k) defines a concession to include a reduction in site development standards that results in identifiable and actual cost reductions to provide affordable housing.
The statutory terms “identifiable” and “actual” establish a standard that contemplates some demonstrable basis in the record. Cost reductions must be capable of being identified and must be real, not theoretical.
The applicant has represented that each of the three concessions produces identifiable and actual cost reductions. The question for this appeal is where the record reflects the City’s determination that those representations satisfy the statutory standard. By way of example:
• for the unit size concession, where the record reflects the basis for concluding that the unit-size approach relied upon produces the required cost reductions; • for the unit type concession, where the record reflects evaluation of how the record supports the conclusion that the unit-type approach relied upon is necessary to achieve the claimed cost reductions, as required by statute; and • for the amenity concession, where the record reflects the basis for determining that the balcony-related amenity reduction produces identifiable and actual cost reductions, and that those cost reductions are necessary to provide affordable housing costs, as required by statute.
These are not requests for new analysis. They are questions about where determinations required by section 65915(k) appear in the record.
IX. Remand as a Governance Measure
The Planning Commission approved the project on January 13, 2026, and this appeal was timely filed on January 15, 2026. The City Council’s review proceeds under Chapter 14.28 of the Municipal Code.
Supplemental Statement – 700 Irwin Street Appeal
Remand is not disapproval. It is the Council exercising its appellate role to ensure that the record supporting the final action is complete and transparent. The Planning Commission has taken action within the AB 130 process timeline, and the appeal is a separate procedural step.
A remand with a defined scope and reasonable timeline serves all parties. It allows the City to ensure that required determinations are clearly documented, provides the applicant with a more durable entitlement, and assures the community that existing legal obligations – including fair housing obligations – were applied as required.
X. Conclusion
This Supplemental Statement identifies record-clarity questions that emerged during the appeal period, including questions that become easier to see once the full staff report, draft resolution, and conditions are read together with the earlier AB 2011 correspondence. The questions below do not assume any particular outcome. They ask where the administrative record reflects the determinations that existing law requires, and – where topics are discussed in one part of the record – where the final action documents reflect how those topics were resolved.
• Where the record reflects the City’s individualized application of the statutory criteria to each concession and waiver – including the “contrary to state or federal law” determinations – and the record basis supporting those determinations (not just a recitation of the standards);
• Where the record reflects the City’s evaluation of the base-project demonstration under Government Code section 65915(o)(6), including what materials the City relied on to confirm the base assumptions and the “comparable average unit size” requirement;
• Where the record reflects the City’s affirmative determination under Resolution 14890(C)(1) that clustering furthers affordable housing opportunities, and where the record reflects how the City considered its existing fair housing obligations in making that determination;
• Whether the record reflects consideration of the combined effect of the amenity concession and the AB 130 freeway-facing balcony prohibition as part of the required “contrary to law” determination;
• Where the record reflects the City’s reasoning on sequencing of any required federal approvals relative to entitlement, given potential NEPA review associated with federal action;
Supplemental Statement – 700 Irwin Street Appeal
• Whether the record reflects Caltrans consultation having been conducted, or the documented basis for concluding it was not required, given adjacency to state highway facilities and deferral of post-occupancy transportation analysis; • Where the record reflects the City’s determinations that the concessions satisfy Government Code section 65915(k)’s “identifiable and actual” cost-reduction standard, and what record evidence supports those determinations (i.e., a documented or demonstrable cost basis), rather than conclusions alone.
None of these questions asks for analysis beyond what existing law requires. Each asks where required determinations appear in the record supporting the City’s final action.
Where certain topics appear in earlier record materials – including materials generated during the AB 2011 review – remand provides a straightforward way to make clear how those topics were resolved in the final approval documents, so the City’s action rests on a complete, transparent, and defensible record.
Respectfully submitted,
Steven Bryant
Resident of San Rafael, Business Owner, and Real Estate Broker Outlook
Fw: 700 Irwin St Proposal
From Mayor Kate <[email protected]>
Date Tue 1/20/2026 9:33 AM
To Lindsay Lara <[email protected]>
Cc Micah Hinkle <[email protected]>
Hi - Forwarding to Lindsay to ensure the email is part of the appeal packet.
Kate Colin (she/her/hers)
Mayor, City of San Rafael
From: sean nowell
Sent: Sunday, January 18, 2026 4:44 AM
To: Community Development <[email protected]> Cc: Mayor Kate <[email protected]>
Subject: 700 Irwin St Proposal
Dear Micah Hinkle,
This is an appeal to rescind acceptance of the project. No one on the planning commission wants it and no one in San Rafael wants it; (& on so many levels & for so many reasons.) This 17 story apartment building proposal must be lower rise & located elsewhere. There are very few worse locations for an apartment building in San Rafael, let alone 17 stories. “Our hands are tied” isn’t the answer.
Everyone, ( & likely even the developers) knows that it’s wrong for San Rafael. The rights of the community far outweigh the ‘rights’ of any developer. Please stand & fight back.
Sincerely,
Sean Nowell
Sent from my iPhone
1/20/26, 10:42 AM Inbox - Lindsay Lara - Outlook
https://outlook.office365.com/mail/inbox/id/AAkALgAAAAAAHYQDEapmEc2byACqAC%2FEWg0AOJ8v9gzPFE6wSNu2pNW1awAJDeDsgQAA 1/1