St. Helena City Council
May 1, 2023

St. Helena Planning Commission
February 2, 2023

contract. This covenant not only imposes upon each contracting party the duty to refrain from doing anything which would render performance of the contract impossible by any act of his own, but also the duty to do everything that the contract presupposes that he will do to accomplish its purpose.”); Thrifty Payless, Inc. v. The Americana at Brand, LLC, 218 Cal. App. 4th 1230, 1244 (2013) (“The covenant is read into contracts and functions as a supplement to the express contractual covenants, to prevent a contracting party from engaging in conduct which (while not technically transgressing the express covenants) frustrates the other party’s rights to the benefits of the contract.”) (internal citations omitted).

We understand that the City has taken the position that a subsequent settlement agreement, executed in 2012 (the “Settlement Agreement”), releases the City from its obligations under the Agreement. To the contrary, the Settlement Agreement released only those claims existing at the time it was executed. See Settlement Agreement, § 5(1)-(2) (releasing claims “which Hunter has had or claims to have had or now has or claims to now have in connection with the Contract, Project and Action.”). Needless to say, nothing in the Settlement Agreement can reasonably be read as Mr. Hunter’s agreement to allow the City to violate the Agreement in the future. See Jardin v. Datallegro, Inc., No. 08CV1462-IEG-RBB, 2009 WL 186194, at *6 (S.D. Cal. Jan. 20, 2009) (“As a general rule, contractual limitations on liability for future conduct must be clearly set forth.”). The Settlement Agreement in no sense absolves the City of its continuing obligations to perform under the Agreement, including its obligation “to build certain retention and drainage facilities” “based upon the projected build-out of [the Project].” Agreement, §

1.7(c). Those obligations persist, and the City must act in good faith to uphold them.

II. Numerous conditions violate the Housing Accountability Act.

Second, and independently of the foregoing, many of the conditions that the City purports to require violate the Housing Accountability Act, Cal. Gov. Code § 65589.5 (the “HAA”). HAA subdivision (j) prohibits local governments from disapproving or reducing the density of any project that “complies with applicable, objective general plan, zoning, and subdivision standards and criteria, including design review standards, in effect at the time that the application was deemed complete,” unless certain narrow findings can be made. “A standard that cannot be applied without personal interpretation or subjective judgment is not ‘objective’ under the HAA.” Cal. Renters Legal Advoc. & Educ. Fund v. City of San Mateo, 68 Cal. App. 5th 820, 840, (2021). Thus, the HAA prohibits local governments from imposing subjective conditions as prerequisites to project approval.2
Yet, despite its acknowledgement that the Project is protected by the HAA (Draft Findings and Statements of Overriding Considerations at 70), the City now purports to condition Project approval on numerous subjective conditions. Many of the City’s conditions, for instance, afford impermissible discretion to City officials. See Conditions of Approval 33, 44, 47, 55, 72, 97,

2 HAA subdivision (h)(6)(A) clarifies that disapproval encompasses the denial of “any required land use approvals or entitlements necessary for the issuance of a building permit.” Agenda Item #5.11.

St. Helena Planning Commission
February 2, 2023

100, 101, 105, 108, 110, 116. Other conditions simply require the applicant team to perform “to the City’s satisfaction” or otherwise leave the determination to “the discretion of the City.” See Conditions of Approval 40, 107, 109, 111, 112, 113. See also Conditions of Approval 35 (“the Final Map shall be designed to the satisfaction of the Public Works Director”), 118 (fire hydrants must be installed “to the satisfaction of the Fire Department”). These conditions are not objective, and the City may not impose them as prerequisites to Project approval without violating the HAA. Indeed, the City’s insistence on conditions preserving its discretion at every step is particularly improper in view of the City’s decades-long abuse of that discretion with respect to this Project – abuses which the Department of Housing and Community Development (“HCD”) repeatedly referenced in rejecting the City’s draft Housing Element. Post-entitlement approvals such as grading and building permits must issue on a “ministerial” basis,3in which the permitting “agency merely determines whether applicable statutes, ordinances, regulations, or other fixed standards have been satisfied,” but can exercise “no discretionary authority to deny or shape the project.” Protecting Our Water and Environmental Resources v. County of Stanislaus (2020) 10 Cal.5th 479, 489, 494. Failure to comply with these new requirements is itself an HAA violation.4 As such, the City is forbidden from exercising the type of broad discretion that determining compliance with these conditions would require.

The HAA likewise prohibits local governments from imposing conditions on HAA-protected projects that would require the Project to be developed at a lower density, or even any conditions that would “have the same effect” as a density reduction, unless certain narrow findings can be made. HAA subd. (h)(7), (j)(1). The City’s conditions are unlawful because they would have the same effect as a density reduction, both individually and in the aggregate. Individually, several conditions would in practice require reductions in the density of the Project. Condition of Approval 90, for instance, requires an analysis of the capacity of existing drainage facilities, and a commitment to construct any improvements that the City deems necessary. That condition seems to contemplate expansion of the existing drainage pond, which could not feasibly be accomplished without reducing the number of units to be developed. This would be a condition imposing a density reduction – a result that the HAA forbids. The City’s numerous onerous conditions also are tantamount to density reductions in the aggregate, in that they jeopardize the feasibility of the Project altogether. For this reason as well, the City’s purported imposition of these conditions violates the HAA.

3 Cal. Gov. Code 65913.3(j)(3)(A) (defining “postentitlement phase permit” as including “building permits, and all inter-departmental review required for the issuance of a building permit; permits for minor or standard off-site improvements; permits for demolition; and permits for minor or standard excavation or grading.”). 4 Cal. Gov. Code 65913.3(f) (“If a local agency fails to meet the time limits in this section, it shall be in violation of Section 65589.5.”).

Agenda Item #5.11.

St. Helena Planning Commission
February 2, 2023

III. The City’s ongoing conduct with respect to the Project, including but not limited to the proposed imposition of these conditions, jeopardizes its ability to comply with Housing Element Law.

The deadline for the City to adopt a Housing Element that substantially complies with State Housing Law was two days ago, January 31, 2023. As you know, the City has failed to adopt a legally compliant Housing Element, is now out of compliance with Housing Element Law, and is now subject to the Builder’s Remedy among other penalties.5 As you also know, the City’s initial draft Housing Element was rejected by HCD. That rejection was due in no small part to the City’s conduct with respect to the Project, which consists primarily of delay tactics stretching back more than a decade.

The Project’s 87 units represent roughly one-third of the City’s total RHNA allocation of 254 units. Put simply, the City cannot demonstrate zoned capacity to meet its RHNA allocation without the Project’s units. And the City cannot receive credit for the Project’s 87 units unless it can demonstrate to HCD’s satisfaction that those units will be constructed during the 6th Cycle.

Central to HCD’s rejection of the City’s Housing Element was its failure to adequately disclose and address governmental constraints to the development of housing in the City. Specifically, HCD explained: “The element briefly discusses the required permits for a typical single family, subdivision, and multifamily project. This is not a complete analysis and does not address the requirements. The element must describe and analyze the City’s permit processing and approval procedures by zone and housing type …. The analysis should consider processing and approval procedures and time for typical single-family and multifamily developments, including type of permit, level of review, approval findings and any discretionary approval procedures. The analysis must evaluate the processing and permit procedures’ impacts as potential constraints on approval certainty, feasibility, and housing supply and affordability.” 6 Moreover, HCD stated
that “the element should include programs to address or remove the identified constraints.” 7 The
conditions that the City seeks to impose on this Project are “governmental constraints to the development of housing in the City” that must be analyzed, addressed, and where appropriate removed pursuant to the City’s Housing Element update. That the City persists in maintaining these conditions – even requirements to develop infrastructure that the City is contractually

5 See “Nearly 4,000 Units Coming to Santa Monica as City’s Housing Element Falls Out of Compliance,” Santa Monica Mirror (Oct. 14, 2022) (https://smmirror.com/2022/10/nearly-4000-units-coming-to-santa-monica-as-cityshousing-element-falls-out-of-compliance/). 6 Dep’t of Housing & Comm. Dev., “City of St. Helena’s 6th Cycle Draft Housing Element” (Dec. 6, 2022), App’x at 6. See also Cal. Gov. Code § 65583(c)(3) (Housing Element must set forth program to “address and, where appropriate and legally possible, remove governmental and nongovernmental constraints to the maintenance, improvement, and development of housing, including housing for all income levels and housing for persons with disabilities.”).
7 Dep’t of Housing & Comm. Dev., “City of St. Helena’s 6th Cycle Draft Housing Element” (Dec. 6, 2022), App’x at 6.

Agenda Item #5.11.

St. Helena Planning Commission
February 2, 2023

obligated to develop itself – is inconsistent with the City’s obligation to bring itself into compliance with Housing Element Law.

Additionally, HCD’s rejection correspondence signaled the Department’s awareness that “the Hunter Subdivision Project has been pending since 2010,” and stated that “the element should provide an analysis demonstrating the likelihood of these units being built during the planning period.”8 As this correspondence confirms, the City’s past course of conduct with respect to the Project raises some doubts, to say the least.

The City’s current course of conduct – the imposition of conditions that contravene its contractual promises, violate the HAA, and threaten to jeopardize the Project altogether – is functionally indistinguishable from the delay tactics that it has employed for the past decade.

Under either approach, the City cannot demonstrate that the Project will be developed within the 6th RHNA Cycle, and therefore cannot receive credit for the Project’s 87 units. Nor is the City likely to make up for these units elsewhere, given that the plainly fanciful nature of the City’s sites inventory was readily apparent to HCD.

Finally, we understand that the City has revised its Housing Element in response to HCD’s feedback, and that it now maintains that “the Hunter Subdivision project is anticipated to receive planning approval in the near future. The Final Environmental Impact [Report] was released in October 2022 and the project is scheduled for hearing before the City’s Planning Commission in February of 2023.” This new promise of project “approval” of course is hollow if the “approval” the City issues is subject to unlawful and onerous conditions that will preclude the Project from actually being constructed. Housing Element Law does not require the City to simply assure HCD that project approvals are forthcoming. Instead, the City must demonstrate that the Project has “realistic and demonstrated potential for redevelopment during the planning period.”9 In this regard, approving the Project subject to numerous onerous and unlawful conditions is no different than disapproving the Project outright, as in either instance the project is unlikely to be built. The path to Housing Element compliance, therefore, requires a change of course with respect to the Project.

IV. Many conditions are constitutionally impermissible or otherwise unlawful.

Finally, we note that many of the conditions are likely constitutionally impermissible, as unlawful regulatory takings, violations of the applicant team’s due process rights, and unlawful exercises of the City’s police powers. See Arnel Dev. Co. v. City of Costa Mesa, 126 Cal. App. 3d 330, 337 (Ct. App. 1981) (arbitrary and discriminatory property restrictions are invalid and unlawful exercises of police power); Dolan v. City of Tigard, 512 U.S. 374, 398 (1994)

8 Dep’t of Housing & Comm. Dev., “City of St. Helena’s 6th Cycle Draft Housing Element” (Dec. 6, 2022), App’x at 2. See also Cal. Gov. Code § 65583(a)(3) (Housing Element must identify “an inventory of land suitable and available for residential development, including vacant sites and sites having realistic and demonstrated potential for redevelopment during the planning period.”).
9 Cal. Gov. Code § 65583(a)(3).

Agenda Item #5.11.

St. Helena Planning Commission
February 2, 2023

(requiring “essential nexus” and “rough proportionality” “between the harm caused by the new land use and the benefit obtained by the condition.”); CEQA Guidelines § 15126.4(a)(4) (mitigation measures require “essential nexus” to legitimate government interest and must be “roughly proportional” to the impact of the project). For this reason as well, the requested conditions are improper and unlawful.10
* * * * *
The City’s obligations under the Agreement, and under the HAA, and under Housing Element Law, compel the withdrawal of the numerous unlawful conditions of approval. At a minimum, the City must withdraw (or modify, per the applicant team’s prior requests) Conditions 87, 89, and 90. We expressly reserve our rights to pursue all available remedies under contract and state housing law should the City decline.

Very truly yours,
Daniel R. Golub
William Sterling
West Coast Land Use & Environmental Law Practice Group
Holland & Knight LLP
cc: Maya DeRosa, AICP, Community Development Director
Ethan Walsh, City Attorney

10 We also note for completeness that the Final EIR’s conclusion that the Project would have significant and unavoidable VMT impacts is unsupported by substantial evidence and contrary to law, as the applicant team has documented in the record. See Comment Letter 93 (Leslie R. Perry, “Comments to Draft EIR – Hunter Subdivision Project” (Nov. 1, 2021) (enclosing W-Trans, “Comments on the Environmental Impact Report (EIR) for Hunter Subdivision Project” (Nov. 1, 2021); DKS, “Review of City of St. Helena’s Application of SB 743 Requirements Project #21082-000 of the Planned Residential Development” (Oct. 20, 2021)) (Planning Commission Report, pages 3006-3017). The EIR should reflect the fact that the Project will have no significant and unavoidable impacts.

Agenda Item #5.11.

ATTACHMENT A
Agenda Item #5.11.

1 HUNTER SUBDIVISION CONDITIONS OF APPROVAL 2-7-23
Tentative Subdivision Map TM 2022-001
APN 009-030-057
These conditions shall apply to City approval of Tentative Subdivision Map TM 2022-001.

However, the only conditions herein that constitute preconditions to the approval of the Final Map are those that explicitly state that they constitute such preconditions, and such conditions may be satisfied through substantial completion, as determined by the City Engineer, by execution of a Subdivision Improvement Agreement, in a form acceptable to the City Engineer, or a combination thereof. Either substantial completion or execution of a Subdivision Improvement Agreement or a combination of both, shall enable the City Engineer to make a determination of substantial compliance with these condition and the Tentative Subdivision Map TM 2022-001.

Planning Division: General Conditions

1. This specific approval is limited to the Tentative Subdivision Map TM 2010-40, and is not intended to serve as an approval of the overall project description that was submitted with the tentative map application.

2. This approval is based upon all conditions of approval set forth herein, including mitigation measures and specified plans and agreements included by reference, as well as all applicable City rules and regulations. Any deviations from the conditions must be reviewed and approved by the City for conformity with this approval. Deviations may require approved changes to these approvals and/or further environmental review. Deviations without the above described approval will constitute a violation of permit approval.

3. Except as specifically authorized in these conditions of approval, the grading, development, use, and maintenance of the property; the size, shape, arrangement, and location of the structures, parking areas and landscape areas; and the protection and preservation of resources shall be subject to Planning Commission approval and shall conform to the conditions of approval below. Notwithstanding the foregoing, the associated grading and construction of infrastructure for the project shall be permitted without Design Review approval if the design of such infrastructure has otherwise been approved by means of the Tentative Map or Final Map. All plans and agreements (such as landscape maintenance plans) required pursuant to these conditions of approval must be submitted for review and approval and shall be implemented as approved by the City.

4. The use and/or construction of any structures or improvements authorized by this approval shall not commence until all necessary planning and building permits pertaining to the use or construction in question are obtained. Before any grading or building permit will be issued by the City, the Owner/Applicant must obtain written clearance from all departments having conditions; such clearance shall indicate that the Owner/Applicant has satisfied all preconstruction conditions.

Agenda Item #5.1.

Agenda Item #5.11.

2 5. The Owner/Applicant’s acceptance of this permit and/or commencement of use, construction and/or operations under this approval shall be deemed acceptance of all conditions of this approval by the Owner/Applicant.

6. The Owner/Applicant shall ensure that potential contractors are aware of City requirements.

The Owner/Applicant shall notify all contractors and subcontractors in writing of the site rules, restrictions, and Conditions of Approval and submit a copy of the notice to the Planning Department.

7. Pursuant to the Municipal Code, Section 16.16.100, the Tentative Map approval is valid for a two (2) year period ending February 7, 2025, unless later extended by operation of state law.

The Final Map shall be filed by this date or an extension of time shall be requested prior to the expiration date.

8. Pursuant to St Helena Municipal Code, any request for an extension of the Tentative Map must be justified in writing and received by the Planning Department at least twenty (20) days prior to expiration. The time at which such map expires may be extended by the City Council for one year, and on further application twenty (20) days before the expiration of the one year extension, the subdivider may request a second one-year extension, and on further application twenty (20) days before the expiration of the second one-year extension may request a third one-year extension. No extension shall be permitted beyond the third one-year extension.

9. Prior to recordation of the Final Map and subject to City approval as to form and content, the Owner/Applicant shall include all of the mitigation measures and conditions of approval associated with or required by this Project approval on a separate informational sheet(s) to be recorded with the Final Map. All applicable conditions and mitigation measures for the Project shall be printed on grading and/or building plans.

10. Compliance with all permit conditions shall occur in accordance with specific regulations but in all cases not later than prior to occupancy or initiation of use unless another time is set by law or by this approval. Occupancy or final inspection of a project may be withheld if all conditions, including payment of fees for services rendered by the City, are not met.

11. In any action or proceeding to attack, challenge, invalidate, set aside, void or annul the City’s approval of applicant’s Project, in whole or in part, applicant shall defend, at its own expense and without any cost to the City, and with counsel acceptable to the City, and shall fully and completely indemnify and hold the City, its agents, officers, and employees harmless from and against any and all claims, causes of action, damages, costs, attorney’s fees and liability of any kind, so long as the City reasonably promptly notifies the applicant of any such claim, action, or proceedings and the City cooperates fully in the defense of the action or proceedings.

12. This Tentative Parcel Map shall be binding upon all parties having any right, title or interest in the real property or any part thereof, their heirs, successors and assigns, and shall inure to their benefit and benefit of the City of St. Helena.

Agenda Item #5.1.

Agenda Item #5.11.

3 13. If the Tentative Map is proposed to be revised, including revisions to these conditions of approval, the revisions shall be approved pursuant to and in accordance with Section 16.16.130 of the St. Helena Municipal Code.

14. The primary purpose of this review is for compliance with the General Plan and Zoning Ordinance. The owner/applicant is responsible for meeting with the Building Official/Fire Inspector to review compliance with Building and Fire Codes, including fire protection systems and the accessibility standards of Title 24.

15. All required fees, including planning fees, development impact fees, park impact fees, and building permit fees shall be paid prior to issuance of building permit unless such payment has been modified by adopted mitigation measures or conditions of approval. Fees shall be those in effect at the time of the issuance of the building permit.

16. This authorizes the creation of a tentative subdivision of a 16.92-acre parcel (APN 009-030- 057) located at the north/east terminus of Adams Street into 52 lots. In addition, two lettered lots are created: Parcel A (0.06 acres) is an open space lot adjacent to an internal roadway; Parcel B (0.04 acres) will contain a private water well to be used for irrigation of landscaped areas.

17. All uses of the property shall be in compliance with the MR: Medium Density Residential zoning district regulations.

18. The applicant shall be responsible for compliance with all mitigations measures adopted as part of this project and listed in the Environmental Impact Report and Mitigation Monitoring and Reporting Program (MMRP) adopted as part of this project.

19. All conditions of approval shall be clearly identified and included on all plans submitted for future permit review and issuance.

20. Prior to applying for building permits, proposed future development on any of the newly created lots or parcels shall require the approval of a Design Review application and Use Permit application as applicable, subject to discretionary review by the Planning Commission.

21. The Applicant shall be responsible for all City plan check and inspection costs as described in the St. Helena Comprehensive Fee and Rate Schedule.

Planning Division: Final Map Conditions

22. The owners of the 51 single family residences and the multi-family development on parcel 52 shall be members of a homeowner's association, or another funding mechanism acceptable to the City, dedicated to the maintenance of the project’s common areas, the internal irrigation system (fed by the well on Parcel B), and the well on Parcel B.

23. Prior to recordation of the final map and concurrent with the Subdivision Improvement Plan, the applicant shall submit CC&R's (Codes, Covenants and Restrictions) to the City Attorney, Public Works Director and Community Development Director for review and approval.

CC&R's shall be recorded at time of recordation of final map. CC&R's shall include all Agenda Item #5.1.

Agenda Item #5.11.

4 restrictions and maintenance regulations pertaining to, landscaping and common areas; shall include all restrictions and maintenance agreements pertaining to roads and access easements; and all restrictions and maintenance agreements pertaining to the irrigation well and internal irrigation water distribution system. The CC&Rs must be recorded prior to issuance of any building permit for any structure on the project site.

24. Pursuant to Section 16.20.090, upon approval of the final map by the City Council, the City Clerk shall execute the appropriate certificate on the certificate sheet and shall, subject to the provisions of Section 66464 of the state Subdivision Map Act, transmit the map, or have an authorized agent forward the map, to the county recorder prior to the issuance of a building permit.

25. Prior to issuance of a Certificate of Occupancy, all overhead utilities on the site shall be undergrounded.

Planning: Misc. Conditions

26. Prior to issuance of building permits, the applicant shall develop a building construction plan to be approved by the Planning Director and Building Official to insure that the homes meet or exceed Title 24 Energy Efficiency Standards and receive a green rating under either the LEEDS, Green Points Checklist, or other acknowledged rating system for energy conservation and green building practices. The latest version of the City of St. Helena green building standards will apply at the time of building permit submittal.

27. Prior to approval of the Final Map, the applicant shall enter into an Affordable Housing Agreement with the City of St. Helena, which agreement shall be subject to review and approval by the St. Helena City Council. The Affordable Housing Agreement shall be recorded in the Official Records of Napa County, and shall ensure that the project complies with the requirements of Municipal Code section 17.146.050, Residential development project, inclusionary/in-lieu fee requirements. The Affordable Housing Agreement shall demonstrate how the project satisfies the minimum density requirement of the General Plan to construct a minimum of 87 dwelling units, including single family, multifamily, and accessory dwelling units.

Planning: Flooding Conditions

28. Prior to issuance of building permits, the occupant shall prepare a statement that has been approved by the Public Works Director for inclusion in the disclosure documents provided to purchasers of homes which describes the flood risk present at this location and notifies the buyer of the availability of low-cost Preferred Risk Policy flood insurance.

Planning: Landscape Conditions

29. City of St. Helena Community Development Department shall review the final landscape and fencing plan as part of a Design Review approval and prior to issuance of building permits for construction on the property to ensure compliance with Mitigation Measures. Landscaping shall be native, drought tolerant, compatible with oak trees and requiring minimal irrigation.

Agenda Item #5.1.

Agenda Item #5.11.

5 30. Landscape plans shall comply with the State of California Model Water Efficient Landscape Ordinance and Section 17.112.140 of the St Helena Municipal Code. Plans shall be designed and verified by a landscape professional and shall include drought tolerant landscaping and low water irrigation systems. Landscaping shall not block vision from exits or at street intersections.

Planning: Construction Activities Conditions

31. Mechanical equipment, including heating and air conditioning units and spa equipment, shall be located away from property lines and shall be shielded or enclosed to minimize noise levels.

Noise generated shall not exceed 60 dBa, Ldn. This condition of approval implements Mitigation Measure NOI-1 from the project environmental impact report, Chapter 8.24 of the St Helena Municipal Code, and noise-related policies of the St Helena General Plan, including policy 8.3.11 from the 1993 General Plan and policy PS2.4 from the 2019 General Plan.

32. The applicant and/or construction manager shall notify all contractors and subcontractors that no trespassing is allowed on adjoining properties.

33. To reduce disturbance of residents in the project vicinity, construction activities which generate noise that can be heard at the property line of any parcel of real property within the City limits shall be limited to 8:00 a.m. to 5:00 p.m. Monday through Saturday. Delivery of materials/equipment and cleaning and servicing of machines/equipment shall be limited to 7:00 a.m. to 6:00 p.m. Exceptions to these time restrictions may be granted by the Public Works Director for one of the following reasons: (1) inclement weather affecting work, (2) emergency work, or (3)other work, if work and equipment will not create noise that may be unreasonably offensive to neighbors as to constitute a nuisance. The City Engineer must be notified and give approval in advance of such work. No construction activities shall occur on Sundays or federal or local holidays that generate noise that can be heard at the property line of any parcel of real property within the City limits.

34. This property in the vicinity of an agricultural district. All future purchasers of homes or renters living in the project shall be notified of the expectation of legal, normal agricultural activities on the adjacent land, including day or night disbursement of chemicals, and creation of dust, noise, or fumes, and of the City’s Right to Farm ordinance.

Public Works: General Conditions

35. Prior to recordation, the Final Map shall be designed to the satisfaction of the Public Works Director to accommodate the following facilities in the right of way of both Starr Avenue and Adams Street:
• Curb and Gutter in accordance with City Standard #310 for a 24” gutter. • Sidewalks, either attached to the curb or detached from the curb, on both sides of the street along Starr Avenue, and only on the south side of Adams Street, in accordance with City Standard #315
• Parking lane on both sides of the street in accordance with City Standard #301 for a “Collector” street.

Agenda Item #5.1.

Agenda Item #5.11.

6 • Class II on-street bike lane on both sides of the street in accordance with Caltrans’ Highway Design Manual Index 1003.2 but not less than 5 feet wide. • Two vehicle travel lanes in accordance with City Standard #301 for a “Collector” street. • Striping to delineate parking, bike, and travel lanes.

36. All public improvements utility connections shall be designed in accordance with the City of St. Helena’s Construction Standards (SHMC 16.32.230).

37. The City has adopted the latest edition of the Bay Area Stormwater Management Agencies Association (BASMAA) Post-Construction Manual. Applicant is responsible for conformance construction plans in accordance with the BASMAA Manual, SHMC Section 13.32 et. seq., and the State Water Resources Control Board Phase II Municipal Separate Storm Water System (MS4) General Permit (Order 2013-0001 DWQ). Approval of project by Planning Commission does not constitute compliance with storm water regulations nor a right to develop per approved plans unless this condition of approval is fully satisfied.

38. Grading plans, public improvement plans and connections to public utilities shall be prepared by a California Licensed Civil Engineer.

39. An Encroachment Permit is required prior to starting work within City right of way.

40. All public facilities damaged by construction activities shall be the responsibility of the Applicant and shall be repaired to the satisfaction of the City at the Applicant's expense.

41. During water shortage emergencies, all construction water used for the project shall be obtained from a source other than a City of St. Helena potable water sources (SHMC

13.04.221).

42. Unless exempted, any ADU or JADU constructed with a new single-family home shall have a separate utility connection directly between the ADU or JADU and the utility and payment of the normal connection fee and capacity charge for a new dwelling are required SHMC

17.116.030(G)(2).

43. Developer shall design and construct all improvements and facilities shown on any approved tentative map, site plan, or other documents submitted for permit approval, in accordance with the St. Helena Municipal Code (SHMC), and the City of St. Helena Design and Construction Standards. Approval of a tentative map depicting improvements that do not conform to the SHMC or City standards does not constitute approval of an exception to the SHMC or City standards unless explicitly stated herein or in another City resolution.

44. The developer shall be responsible for all City plan check, map check and inspection costs.

The developer shall deposit funds with the City upon the initiation of plan check services. The amount of the initial deposit shall be determined by the City Engineer. Additional funds may be required based upon actual plan check and inspection costs.

45. If any of the improvements which the applicant is required to construct or install is to be constructed or installed upon land in which the applicant does not have title or interest Agenda Item #5.1.

Agenda Item #5.11.

7 sufficient for such purposes, the applicant shall do all of the following at least 60 days prior to the filing of the final or parcel map for approval pursuant to Government Code Section 66457:
a) Notify the City of St. Helena (hereafter "City") in writing that the applicant wishes the City to acquire an interest in the land which is sufficient for such purposes as provided in Government Code Section 66462.5;
b) Supply the City with (i) a legal description of the interest to be acquired, (ii) a map or diagram of the interest to be acquired sufficient to satisfy the requirements of subdivision (e) of Section 1250.310 of the Code of Civil Procedure, (iii) a current appraisal report prepared by an appraiser approved by the City which expresses an opinion as to the current fair market value of the interest to be acquired, and (iv) a current Litigation Guarantee Report;
c) Enter into an agreement with the City, guaranteed by such cash deposits or other security as the City may require, pursuant to which the applicant will pay all of the City's cost (including, without limitation, attorney's fees and overhead expenses) of acquiring such an interest in the land.

46. Prior to the issuance of a Certificate of Occupancy, all proposed utilities, both on-site and along project frontages, shall be placed underground. This does not include surface mounted transformers, pedestal mounted terminal boxes and meter cabinets.

47. Except for the existing well on Lot 19 of the Tentative Map that will be providing irrigation water to this development, all existing wells, septic tanks and/or underground fuel storage tanks shall be abandoned under permit and inspection of Napa County Department of Environmental Health. If applicant determines that there are none, prior to the issuance of a grading permit, the project engineer shall provide a letter describing the scope of the search done to make this determination and demonstrating to the reasonable satisfaction of the City Engineer that there are no other existing wells, septic tanks and/or underground fuel storage tanks within the boundaries of the Tentative Map.

Public Works: Fees

48. Public Works engineering and inspection fees for Improvement Plan and Final Map review shall be due and payable at the time of making the first submittal in connection with the Improvement Plans or the Final Map, as applicable.

49. All Public Works Development Impact fees shall be due and payable at the time of issuance of building permit(s) for the improvements to which they are applicable, unless otherwise authorized by the City.

Public Works: Improvement Plan and Construction Conditions

50. Improvement plans shall be prepared and submitted by a California Registered Civil Engineer for the construction of all necessary and required on-site and off-site improvements including grading, water, sanitary sewer, storm drain facilities, roadway improvements, curbs, gutters, Agenda Item #5.1.

Agenda Item #5.11.

8 sidewalks, parkway strips and streetlights. All design and construction shall conform to the City of St. Helena Design and Construction Standards, as applicable.

51. Per Mitigation Measure GEO-1, a detailed Soils Investigation/Geotechnical Report (the “Soils Report”) shall be prepared and submitted for review with the submittal of the improvement plans.

The report shall address, at a minimum, potential for liquefaction, expansive soils, seismic risk, recommendations for roadway structural sections, foundation, and other items as mentioned in the Mitigation Measure. The improvement plans shall incorporate all design and construction criteria recommended in the Geotechnical Report and acknowledgement of inclusion of any recommendations in the soils report applicable to improvements within this development shall be included on a signature line for the Geotechnical Engineer on the cover sheet of the improvement plans. The signature line should include a statement that the Geotechnical Engineer has reviewed the plans and that the plans have incorporated recommendations as outlined in the Soils Report.

52. All private water mains, sewer mains and storm drains shall be clearly labeled “Private” on the improvement plans.

53. Improvements plans shall include a storm water pollution prevention plan. Erosion control measures shall be included within the improvement plans and the projects WDID number shall be included on the cover sheet of the improvement plans.

54. The improvement plans shall include the following note per the Engineering Controls portion of Mitigation Measure NOI-1: “All mobile and stationary construction equipment employing an internal combustion engine shall be equipped with suitable exhaust and intake silencers which are in good working order.”

55. Roadway Improvements:
a. The structural section of all road improvements shall be designed based upon a geotechnical investigation that provides the basement soils R-value and expansion pressure test results. A copy of the geotechnical report shall also be submitted with the first set of improvement plan check-prints.
b. Where new roadway improvements abut existing paving and sidewalk, curb and gutter, the existing pavement and concrete curb and gutter section shall be saw-cut and reconstructed to provide a smooth conforms conform. The limits of such reconstruction shall be as determined by the City Engineer.
c. Pavement markings and signage shall be provided on all streets as necessary and as required by the City Engineer. Signage restricting parking and red painted curbing shall be installed where appropriate. Speed limit signs and other regulatory and informational signs shall be installed at locations determined by the City Engineer. d. Street lighting shall be designed to provide to meet safety requirements and minimize glare.

Street light standard and luminaries of the design, spacing, and locations shall be approved by the City Engineer. All lighting must have shields.

Agenda Item #5.1.

Agenda Item #5.11.

9 e. Ramps for disabled persons meeting the most recent standards shall be provided at all intersections and at the limits of the improvements where they do not adjoin existing sidewalk improvements. Sidewalk warps shall be provided as necessary to allow a clear four-foot-wide walkway at all locations, including areas where mailboxes, streetlights, and fire hydrants obstruct sidewalks.

56. In accordance with mitigation measure BIO-1 of the approved environmental document, a qualified biologist shall conduct a habitat assessment for bats in trees adjacent to the Project site within 2 weeks prior to any Project construction (site clearing, grading). The habitat assessment shall include a visual inspection of potential roosting features (bats need not be present) and presence of guano within the Project site and 50 feet around these areas. Potential roosting features found during the survey shall be mapped and described in a survey letter report. If roosting bats (individuals or colonies) are detected within the Project site, California Department of Fish and Wildlife shall be notified as soon as possible prior to any construction activity to confirm the bats can be avoided during construction. If a bat roosting or maternity colony cannot be completely avoided, a qualified biologist shall prepare a bat mitigation and monitoring plan for California Department of Fish and Wildlife review and approval, and that plan shall be implemented prior to commencement of construction that could impact the roosting bats or maternity colony. A written report of the findings shall be provided to the City prior to grading.

57. In accordance with mitigation measure BIO-2 of the approved environmental document, if construction activities are scheduled to occur during the breeding season for birds (February 1 through August 31), prior to commencement of construction the Project applicant or their contractor shall implement the following measures to avoid potential adverse effects to nesting raptors and other nesting birds:
• Preconstruction surveys by a biologist of all potential nesting habitats within 500 feet of construction activities, where accessible, shall be conducted by a qualified biologist.

Surveys shall occur no more than 14 days prior to the initiation of site disturbance. If construction is stopped for 14 days or more during the breeding season, a new preconstruction nesting bird survey must be conducted before work can be restarted to ensure no new nesting has occurred in the interim.
• If preconstruction surveys indicate that nests are inactive or potential habitat is unoccupied during the construction period, no further mitigation is required, following submittal of a survey report letter to the City of St. Helena Planning Department. • If active nests are found during preconstruction surveys, a no-disturbance buffer shall be created around active nests during the breeding season or until it is determined by the biologist that all the young have fledged. The buffers shall be established by the biologist in conjunction with the California Department of Fish and Wildlife. Typical buffers may include 500 feet for raptors and 50 to 250 feet for other bird species based on the location of the nest, the nesting species present, and types of construction activities that may cause potential nest abandonment. The perimeter of the buffer zone shall be fenced or marked with staked flagging.

Agenda Item #5.1.

Agenda Item #5.11.

10 58. In accordance with mitigation measure BIO-3 of the approved environmental document, wetland permits (e.g., 404 Nationwide Permit, 401 Water Quality Certification, and 1602 Streambed Alteration Agreement, respectively) shall be obtained prior to any grading work.

Prior to issuance of a grading permit, the Project applicant shall demonstrate authorization from the Army Corp of Engineers and any other regulatory agency to alter the wetland.

59. Prior to the commencement of grading, the developer shall provide evidence that an archaeological monitor has been retained to be present on the site during all ground-disturbing activities per mitigation measure CUL-1.

60. Per mitigation measure CUL-2 of the approved environmental document, if human remains are unearthed during grading operations, work must stop within 100 feet of the find and the county Coroner shall be contacted immediately.

61. Per mitigation measure GEO-2 of the approved environmental document, if known or suspected paleontological resources are unearthed during grading or trenching operations, the area of discovery shall be roped off by the contractor to include a 50-foot radius buffer and remain off-limits until cleared by a qualified paleontologist.

62. Per mitigation measure HAZ-1 of the approved environmental document, the Project applicant shall ensure the following subsurface soils testing and follow-up analysis be performed prior to obtaining a grading permit:
• A soils testing work plan shall be developed in accordance with DTSC’s Interim Guidance for Sampling Agricultural Properties (DTSC 2008) by an appropriately licensed individual (i.e., professional geologist, environmental engineer, or similar qualification) for the portions of the Project site historically used for agriculture. Special consideration shall be given to targeting site soils that are representative of historic agricultural use, and to avoid sampling recent fill material placed during levee construction. Prior to carrying out soils testing, the work plan shall be submitted to the Napa County Division of Environmental Health (as the Certified Unified Program Agency for all cities and areas of Napa County) and the City of St. Helena for review and approval.
• The number of soil samples, sampling methods, compounds tested, background samples (if applicable), and laboratory analyses shall be completed in accordance with DTSC’s Interim Guidance. Should analytical results exceed naturally occurring concentrations or applicable CHHSLs, the health risks of such a condition shall be evaluated in human health risk assessment as described in DTSC standards and guidance (e.g., preliminary endangerment assessment guidance manual). • The risk assessment shall describe measures that must be implemented to ensure potential health risks to construction workers, site residents, and the general public as a result of hazardous materials are reduced to a cumulative risk of less than one in one million for carcinogens and a cumulative hazard index of 1 for non-carcinogens, or as required by the Napa County Division of Environmental Health acting as the Certified Unified Program Agency and/or DTSC oversight. In the event human health risk assessment shows elevated chemical concentrations pose a risk to human health or the environment, the risks shall be eliminated or substantially reduced by removal (e.g., excavation of soils and off-site disposal) or Agenda Item #5.1.

Agenda Item #5.11.

11 remediation of contaminated soils, and/or implementation of institutional controls and engineering controls (IC/EC). IC/EC may include use of a construction risk management plan, use of hardscape to cap problem areas, importation of clean soil in landscaped area to eliminate exposure pathways, and/or deed restrictions. If IC/EC are implemented, an Operations and Maintenance Program shall be prepared and implemented to ensure that the measures adopted are maintained throughout the life of the Project.

63. Per mitigation measure NOI-1 of the approved environmental document, the contractor shall implement the following for onsite noise control and sound abatement means that, in aggregate, would yield sufficient construction noise reduction during the site preparation, grading/excavation, and building construction phases of the Project to ensure compliance with the FTA-based guidance standard of 90 dBA hourly Leq at or beyond the property lines of the nearest residences, as noted.

Administrative Controls – At all times during site preparation and construction:
• Comply with Chapter 8.24 of the Municipal Code with respect to allowable construction periods,
• Minimize idling time of onsite equipment, and
• Either locate onsite stationary construction equipment (such as generators or air compressors) as far from adjacent residential property boundaries as is feasible or place this equipment inside an approved noise-attenuating casing (e.g., sound-attenuated air intakes and heat vents, exhaust mufflers, etc.), or place this equipment indoors.

Engineering Controls – All mobile and stationary construction equipment employing an internal combustion engine shall be equipped with suitable exhaust and intake silencers which are in good working order; and
Install Sound Abatement – During site preparation and construction which involves the operation of more than two pieces of heavy equipment (dozer, backhoe, front-end loader, crane, tractor, etc.) for at least one hour and when operating within 25 feet of the exterior of a residence (either offsite or onsite), do the following:
• Erect a temporary barrier (i.e., plywood sheet) or install sound blankets (or comparable temporary solid barriers) on the Project’s construction fencing, or • Locate sound path intervening containers or trailers onsite to block direct line-of-sight between residences and the operating heavy equipment.

Agenda Item #5.1.

Agenda Item #5.11.

12 Public Works: Improvement Plan and Construction Conditions

64. Starr Avenue: Prior to the issuance of a Certificate of Occupancy, Starr Avenue shall join the existing Starr Avenue at Hunt Avenue and shall be improved to include the facilities listed in condition of approval #35. The structural section of the street shall be per recommendations contained in the Soils Report.

65. Adams Street: Prior to the issuance of a Certificate of Occupancy, Adams Street shall join the existing section of Adams Street (currently a dead end) and be extended into the subdivision.

The street shall be improved per condition of approval #35. At the northerly terminus of Adams Street, a conform shall be constructed with Class 2 aggregate base to connect to the existing walking path/access road/levee. A gate shall be included at the terminus of the road and connection to the walking path/access road that has appropriate signage indicating it is not a through road for vehicles. The gate shall be constructed per direction from the Fire Chief and shall include a Knox box. The structural section of the street shall be per recommendations contained in the Soils Report.

66. Street A: Prior to the issuance of a Certificate of Occupancy, Street A shall be improved to include two 10 ft. travel lanes, two 8 ft. parking lanes, curbs, gutters, a 6 ft. planter strips and 4 ft. sidewalk on the south side of the road and a 10-foot distance from the face of curb to the right-of-way line on the west side of the road. The total right-of-way width shall be 56 feet.

The area between the curb and the right-of-way line on the west side of the street shall be graded such that it can be passable by pedestrians (cross slopes should not exceed 5%). The structural section of the street shall be per recommendations contained in the Soils Report.

67. Streets B and C: Prior to the issuance of a Certificate of Occupancy, Streets B and C shall be improved to include two 10 ft. travel lanes, two 8 ft. parking lanes, curbs, gutters, 6 ft. planter strips and 4 ft. sidewalks within an overall 56 ft. right-of-way. The cul-de-sac associated with Street C shall be constructed per City Standard 304. The knuckle at the intersection of Streets B and C shall be constructed per City Standard 305. The structural section of the street shall be per recommendations contained in the Soils Report.

68. EVA: From Street A to levee: Prior to the issuance of a Certificate of Occupancy, the emergency vehicle access road (EVA) shall be improved to provide an all-weather access road (paved) from Street A up to the existing levee road to the north. The width of the EVA shall be a minimum of 21 feet from face of curb to face of curb within an overall 25 ft. wide dedicated EVA. The EVA shall accommodate emergency vehicles (must provide for turning radii to accommodate fire vehicles as per the Fire Department requirements.) Turning templates shall be provided with the improvement plans during the plan check process to ensure the EVA can accommodate Fire Department apparatus.

69. Access from Lot 52 to Starr Avenue shall be for EVA and pedestrian purposes. Ownership of this parcel shall be the same as Lot 52, or the access point shall be made part of Lot 52.

70. Adjacent to Lot 51 there is a portion of existing right-of-way that needs to be vacated by the City prior to the recordation of the final map. The applicant shall provide all descriptions and Agenda Item #5.1.

Agenda Item #5.11.

13 plats to the City for vacation of this right-of-way. The vacation of the right-of-way by the City of St. Helena shall either be done prior to or concurrently with the recordation of the final map.

71. Per Mitigation Measure AES-1, all streetlights shall include shields and downward focused to reduce glare and spillover light and to minimize effects on wildlife and to retain the rural ambience of the development.

Public Works Water and Sanitary Sewer Improvements Conditions

72. As detailed in the Final EIR for the project, the Developer is required to off-set the Project’s water demand of 37.04 AFY. The Project’s landscape water demand is estimated at 17.16 acrefeet per year, which is within the capacity of the existing on-site well. Due to the new potable water demand on the City system in the amount of 19.8 AFY, the Developer shall implement an alternative innovative method of mitigating water use as allowed under Section

13.12.030(B) of the SHMC and/or Appendix J of the EIR. The required improvements to offset water demand are as follows: Identify and implement offsite improvements that reduce water loss from the public water distribution system and/or identify and implement offsite improvements that result in a net increase in potable water availability equivalent to 19.8 AFY, or a combination of these. No building permit may be issued until the City has confirmed that the Developer has completed the approved measures and such measures have been accepted by the City, or Developer has entered into a public improvement agreement with the City to ensure the completion of such improvements and provided security in one of the forms described in Government Code section 66499 in an amount equal to the estimated cost of construction of the proposed offsite improvements as determined, or reviewed and approved, by the City Engineer. Any public improvements shall be constructed to St. Helena Public Works Construction Standards whenever applicable.

73. Any modifications to the existing well other than the installation or maintenance of pumping and storage equipment and connection to the onsite irrigation water distribution system, shall require a permit per section 13.16.060 of the St Helena Municipal Code.

74. The Final Map shall include easements to provide for the installation of the private onsite water system connected to onsite well.

75. All homes and the proposed multi-family parcel shall be served by the onsite well for landscaping and other outdoor water use. Only interior fixtures may be served by City of St.

Helena domestic water.

76. All parcels must be connected to the internal irrigation well for outside uses, including landscape irrigation and exterior hose bibs.

77. The Applicant shall make written application to the City of St. Helena in conformance with Chapter 13.04 of the St. Helena Municipal Code for Water Service to the new parcels.

78. The applicant/owner shall be required to install water mains and service lines to serve the project parcels with City water. All water mains and lines within the public right of way shall be constructed in conformance with City standards.

Agenda Item #5.1.

Agenda Item #5.11.

14 79. The applicant/ owner shall make written application to the City of St. Helena for annexation to the Sewer District and for Sewer Service to the new parcels in conformance with Chapter

13.20.070 of the St. Helena Municipal Code.

80. All public water and sewer mains must be located in public right-of-way wherever possible.

Where public water and sewer mains must be located on private property, all necessary easement dedications must be made part of the final map or by separate document (if outside of the boundaries of the final map) prior to final acceptance of the improvements by the City.

81. Sewer grades must be designed such that ultimate finished floors are a minimum of 12” above upstream manhole or clean-out rim elevations. Inadequate elevation differentials or grade on private laterals, as determined by the City, must be mitigated by either raising finished floor elevation(s) or installing privately owned and operated sewer lift station(s) with grinder/ejector pump(s) on site.

82. All water improvements shall conform to the City standards.

83. The existing 10 ft. public waterline easement shall be abandoned by separate document once the relocated water line has been built and is operational.

84. Prior to the first Certificate of Occupancy, the existing 12-inch waterline running through the development shall be relocated to Starr Avenue by the applicant/developer. At the westerly end of Starr Avenue, the line shall be reconnected to the existing 12-inch waterline outside north of Lot 46.

85. The proposed well and appurtenances (pump, etc.) for this development shall be owned and operated by the Homeowner’s Association for this development. The well shall supply irrigation water for all landscaping of common areas and on all lots within the subdivision to limit use of domestic water produced by the City. Signage shall be provided on each lot warning of the use of well water and that the well water shall not be used for domestic purposes.

Piping for all irrigation water from the well shall be purple pipe (same as used for recycled water). Also, disclosure statements (either through disclosures as required by the Department of Real Estate or on the final map) shall be provided to all property owners notifying them about use of well water and statements warning that well water should not be used for domestic purposes.

86. The sewer easement on lot 21 shall be a minimum of 15 feet wide and shall be located entirely within Lot 21. Statements shall be included on the final map precluding any permanent structures from being constructed within this easement. The sewer line shall be connected to the existing sewer main in Paseo Grand Drive.

Agenda Item #5.1.

Agenda Item #5.11.

15 Public Works Drainage Improvements Conditions

87. Prior to the issuance of the first building permit, all City-required improvements related to storm water for the project shall be installed by the project developer at its expense. Drainage improvements shall be designed and funded by the developer in accordance with the Design Criteria utilizing the rationale method and any applicable adopted City drainage plans.

88. Prior to the issuance of the first building permit, the applicant shall submit for review and approval, drainage plans and hydraulic calculations prepared by a Registered Civil Engineer.

The drainage plans and calculations shall indicate the following conditions before and after development:
• Quantities of water, water flow rates, major water courses, drainage areas and patterns, diversions, collection systems, flood hazard areas, sumps and drainage courses.

89. Post-development flows leaving the site shall not exceed pre-development flows.

90. Prior to building permit issuance, the applicant shall provide to the City an analysis of the capacity and condition of existing drainage facilities downstream of the development (including any detention/retention ponds), including recommendations for off-site drainage improvements, which shall be constructed prior to the issuance of the first certificate of occupancy. Site grading and drainage improvements shall be shown on the improvement plans.

91. The 100-year overflow and pipeline easement on Lot 25 shall be dedicated on the final map and language shall be included on the final map prohibiting any permanent structures (including garages, sheds, swimming pools, etc.) from being constructed within the easement, as well as provisions (including requirement regarding grading) that ensure that Lot 25 remain in a condition such that it allows relief for the 100-year storm overflows.

92. Prior to Final Map recordation, the developer shall obtain a construction easement from the City over Parcel 009-030-019 to construct the drainage improvements, wall, and fence on lots 5-20. The drainage ditch on Lots 5-20 shall be privately owned and maintained.

Public Works Final Map Conditions

93. A final map, as defined in the State Subdivision Map Act, shall be prepared by a licensed surveyor or civil engineer, showing all parcels, rights-of-way, and easement(s) shall be filed with the City Engineers Office. The final map shall be substantial conformance with the approved Tentative Map and all applicable conditions of approval. The final map is not valid until it has been approved and recorded.

94. Prior to building permit issuance, the developer shall secure all necessary rights-of-way and easements for both onsite and offsite improvements. Rights-of-way and easements shall be dedicated on the map or provided by separate instrument. The developer shall prepare all necessary legal descriptions and deeds. Offers of dedication shall be either via easement or fee title).

Agenda Item #5.1.

Agenda Item #5.11.

16 95. The applicant shall transmit by certified mail a copy of the conditionally approved Tentative Map together with a copy of Section 66436 of the State Subdivision Map Act to each public entity or public utility that is an easement holder of record. Written compliance shall be submitted to the City of St. Helena

96. The final map shall not be approved prior to approval of the Subdivision Improvement Plans.

97. Prior to approval of the final map, the developer shall either complete required improvements in accordance with the approved improvement plans or enter into a Subdivision Improvement Agreement with the City. A certificate of occupancy shall not be issued for any structure until required improvements are completed to the satisfaction of the City Engineer.

98. Abandonment of existing 10-foot public water easement crossing the property shall be included on the final map or by separate document.

99. The unnumbered lot between Lots 3 and 4 as shown on the Tentative Map shall be included as part of Lot 52 and shall not be a separate lot.

Public Works Construction Conditions
100. No grading or other construction shall be performed until the improvement plans have been approved and signed by the City Engineer. Encroachment Permits and Building Permits will not be issued prior to the approval of the improvement plans. An Encroachment Permit is required for any work within the City’s rights of way.
101. The developer shall keep adjoining public streets free and clean of project dirt, mud, materials, and debris during the construction period, as is found necessary by the City Engineer.
102. Prior to the issuance of a grading permit, the developer shall provide evidence that a Notice of Intent has been submitted and received by the Regional Water Quality Control Board for a General Construction Activity Storm Water Permit. A copy of the project Storm Water Pollution Protection Plan shall be submitted to the City. 103. If any hazardous waste is encountered during the construction of this project, all work shall be immediately stopped and the Napa County Environmental Health Department, the Fire Department, the Police Department, and the City Inspector shall be notified immediately.

Work shall not proceed until clearance has been issued by all of these agencies. 104. Prior to final preparation of the subgrade and placement of base materials, all underground utilities shall be installed and service connections stubbed out behind the sidewalk. Public utilities, Cable TV, sanitary sewers, and water lines shall be installed in a manner which will not disturb the street pavement, curb, gutter and sidewalk, when future service connections or extensions are made.
105. Where soil or geologic conditions encountered in grading operations are different from that anticipated in the soil and/or geologic investigation report, or where such conditions warrant changes to the recommendations contained in the original soil investigation, a revised soil or Agenda Item #5.1.

Agenda Item #5.11.

17 geologic report shall be submitted for approval by the City Engineer. It shall be accompanied by an engineering and geological opinion as to the safety of the site from hazards of land slippage, erosion, settlement, and seismic activity. Additionally, if field conditions warrant installation of any subdrains, the location, size and construction details must be provided to the City for review and approval prior to construction. 106. Prior to placing the final lift of asphalt, all public sanitary sewer lines shall be video inspected at the expense of the contractor/developer. All video tapes shall be submitted to the City. If any inadequacies are found, they shall be repaired prior to the placement of the final lift of asphalt.
107. All streets, curbs, gutters, sidewalks or other public facilities damaged in the course of construction associated with this development shall be the responsibility of the Developer and shall be repaired to the satisfaction of the City at the Developer’s expense. 108. The applicant shall submit a proposed haul route for all trucking associated with this project to the City Engineer for review and approval prior to issuance of a grading permit. 109. Dust control must be maintained to the City’s satisfaction. 110. A certificate of occupancy shall not be issued for any structure until required improvements are completed to the satisfaction of the City Engineer.

Public Works Subdivision Final and/or Release of Securities Conditions:
111. All public improvements shown on the Improvement Plans shall be completed and accepted by the City prior to release of any security posted.
112. All punch-list work shall be completed, and any outstanding inspection fees or other charges shall be paid prior to issuance of any certificate of occupancy or prior to acceptance of the improvements, at the discretion of the City.
113. Video inspections shall be made of all storm drain and sewer lines installed by developer as set forth in the approved improvement plans to ensure that they are clean of dirt, rocks, debris or other material. Contractor/developer shall be responsible for cleaning and flushing all storm drain lines prior to acceptance by the City. If flushing of the storm drain system is required, the contractor/developer shall put sufficient plugs/filters in place to ensure that any debris, mud or other material is not washed beyond the piping system in the subdivision nor into any natural water course. A copy of the DVD of all storm drain lines shall be delivered and reviewed by the City prior to acceptance. This condition shall be satisfied prior to issuance of any certificate of occupancy or prior to acceptance of the improvements, at the discretion of the City.
114. Developer shall provide sufficient security guaranteeing the public improvements for a period of one year.

Agenda Item #5.1.

Agenda Item #5.11.

18 115. A complete set of As-Built or Record improvement plans showing all substantial changes from the original plans shall be certified by the Civil Engineer of record and submitted to the City Engineer prior to acceptance of the public improvements. 116. Prior to acceptance of the public improvements, the developer shall provide a written statement signed by his or her engineer certifying that they observed the work during construction and that site grading and all private site improvements have been completed in accordance with the improvement plans approved by the City Engineer. 117. Prior to acceptance of the public improvements, the developer shall provide a written statement signed by his or her geotechnical engineer certifying that they observed the work and reviewed testing results, and that all of work was performed in accordance with the recommendations included in the Soils Report or other recommendations necessitated by field conditions.

Fire Department Conditions
118. Prior to the issuance of a Certificate of Occupancy, the developer is responsible for fire hydrants to be included and installed within the development (number, location and spacing) to the satisfaction of the Fire Department. Locations of the fire hydrants shall be approved by the Fire Department prior to approval of the final map. 119. Plans submitted for building permit shall exhibit compliance with the current St. Helena Fire Code, as adopted and codified in St. Helena Municipal Code Chapter 15.36. 120. Prior to issuance of future building permits, all construction plans for homes and other structures shall include fire sprinklers as required by the City of St. Helena Fire Department. 121. One hour minimum fire-resistant construction on all exterior walls within 10’ of property boundary is required. Fire resistant construction of interior walls shall be determined by type of occupancy.
122. Any gates installed to control vehicular access to a property are required to be setback 30- feet from the property line and/or edge of pavement, whichever is greater. No vehicle gates may be installed without Fire Department and Public Works Department review and explicit approval.
123. Access to the levee road is restricted for public use and only granted to emergency vehicles and emergency egress for Vineyard Valley Mobile Home Park residents. Signage prohibiting its use by the public is recommended. Public access will be granted at the discretion of the Authority Having Jurisdiction during emergencies/evacuations.

Agenda Item #5.1.

Agenda Item #5.11.

JOSHUA S. DEVORE
[email protected]
February 6, 2023
Via Email:

Commissioner John Ponte, Chair, [email protected] Commissioner Autumn Anderson, [email protected] Commissioner Marika Rothfeld, [email protected] Commissioner Rosaura Segura, [email protected] Commissioner Christopher Warner, [email protected] City Manager Anil Comelo, [email protected]
Community Development Director Maya DeRosa, [email protected] RE: Hunter Subdivision Project Environmental Impact Report, File #PL10-040 Dear Chair Ponte, Commissioners, City Manager Comelo, Community Development Director DeRosa:

As you may recall, we represent the Saint Helena Citizens for a Sustainable Future, a diverse group of City residents who are extremely concerned by the City’s actions with respect to the referenced project. We wrote on October 31, 2022, identifying several failures of the project to consider or properly analyze specific impacts of the project, including most notably the proper analysis of the project’s water availability and groundwater use.

It appears that the FEIR has been revised since the prior version was published in October 2022. The FEIR is now dated as January 2023. However, no redline was provided and it is unclear what was changed; but it is clear that the document attached to the February 2023 Staff Report is not the FEIR which has been posted on the City’s website.

What is clear is that the project remains inconsistent with both the previous and current general plans, and the environmental analysis has patent defects. Attachment 17 of the Staff Report for the February 7, 2023, Planning Commission meeting attempts to respond to our October 31, 2022 letter. (Our October 31 letter and Attachment 17 are attached for your convenience.) Yet the response entirely fails to grapple with the actual issues, and reaches conclusions directly at odds with the evidence in the record.

Water Neutrality
The response in Attachment 17 ignores the basic fact that significant new information has been made available which contradicts the EIR’s conclusions, including state mandated changes of County policy require reconsideration of the proposed water use. Most importantly, and in reverse order of Attachment 17’s attempt at a response, Attachment 17’s paragraph 5 relies on outdated information. The cited Agenda Item #5.11.

February 6, 2023

information predatesthe information published by Napa County in 2022, which wasset out in our October 31 letter. That is, significant new information contradicting the basis for the project’s impact on groundwater has been made available that has not been analyzed or considered in the project’s EIR.

The significant new information from 2022 is that “Several wells located near the Napa Valley Subbasin margin in the northeastern Napa area, southwestern Yountville area, and southeastern St. Helena area show periods of groundwater decline during times of drought.” 1 Simply ignoring this evidence of an
increase in the severity of the project’s impacts on groundwater resources is not reasonable.

In response to those groundwater issues and as required by SGMA and the recently-approved Napa County Groundwater Sustainability Plan,2 as set out in our October 31 letter, Napa County has substantially reduced the groundwater allocation to all wells. Although DEIR Appendix L, the September 9, 2021, Well Capacity Study Memorandum emphasizes that “it is recommended that the annual groundwater use conform with County policy.” (Most curiously, DEIR Appendix L has been omitted from the February 2023 Staff Report.)
Attachment 17 ignores that this policy has changed. Attachment 17’s continued position that the onsite well will offset approximately 17 acre-feet of demand is no longer consistent with County policy – rather, only approximately 5 acre-feet can be provided by the well under the new allocation of 0.3 acre-feet per acre.
3 Attachment 17 simply ignores this; and thus its position that 17 acre-feet of water will be offset by the well is plainly erroneous and contrary to the evidence.

In short, the project needs to come up with an additional 12 acre-feet of water from somewhere else. It cannot do so from the on-site well. Attachment 17’s reference in paragraph 3 to the water neutrality analysis in the staff report and Master Response #2 similarly ignore this fundamental flaw.

Even with that failing aside, the water neutrality analysis that credits more than 17 acre-feet of water use to “groundwater” as opposed to the City’s water (and thus subject to its water neutrality ordinance) appears to ignore that the project site well may be drawing from the same basin that supplies the City’s wells. As such, there does not appear to be an analysis of well interference which would suggest that the onsite well is actually any different source of water than the City’s wells. Thus, the project’s water neutrality analysis should have included the entirety of the project’s water use, without any exclusion for the well. This failure to address significant new information regarding changes to County groundwater policy driven by the state mandated SGMA is directly related to the severity of the project’s impact on groundwater resources and requires additional analysis. 1 (Napa Valley Subbasin Groundwater Sustainability Plan Summary, Executive Summary (Jan. 2022) p. 2, availableat https:// www.countyofnapa.org/ DocumentCenter/ View/ 23549/ GSP_Executive-SummaryAbstract?bidId=.) 2 See https://sgma.water.ca.gov/portal/gsp/preview/124; https://www.countyofnapa.org/3084/GroundwaterSustainability-Plan. 3 (See Napa County Well Permit Standards FAQ, available at https://www.countyofnapa.org/DocumentCenter/View/25906/Well-Permit-Standards-FAQs---15-July-2022.) Agenda Item #5.11.

February 6, 2023

Traffic
We also noted the failure to consider the extensive evidence in the record that the project’s impacts on traffic are improperly analyzed and not mitigated despite available solutions being previously proposed.

Although the applicant suggests only vehicle miles travelled (VMT) and not level of service (LOS) should be the standard, the only traffic study provided focuses on the latter.

Yet the EIR completely fails to thoroughly analyze or mitigate VMT. The DEIR’s analysis wrongly uses an Affordable Housing percentage of 28.73%, when the project currently provides for zero. (DEIR 3.14-26, Staff Report p. 721.) But then the DEIR, without apparently relying on any traffic experts, essentially concludes that though the City has not adopted VMT significance thresholds, that the project is indeed significant in its impact, but that there is no mitigation available. This suggestion is directly contrary to the general plan itself, which provides for improvements to the City’s street network that would lessen the length of the project’s trips – particularly connection of Adams to Silverado Trail. (DEIR 3.14-19, Staff Report p. 714.) No analysis however was conducted; though the only traffic study that was prepared indicated that the project should be required to make improvements to the road network. Those conditions appear to have been ignored. In short, there is simply no credible evidence in the record to support the finding that reasonable mitigations or changes have been incorporated into the project to account for the significant impact of VMT, let alone LOS.

Indeed, Attachment 17’sresponse to our prior comments ignores the extensive history of this application, including the operative traffic study, wherein it was previously identified that road improvements were necessary mitigation. The project was essentially tabled for nearly a decade for this reason.

The Traffic Study (DEIR Exhibit K) – which the DEIR appears to suggest now applies to analysis of the general plan rather than CEQA – repeatedly failed to use reasonable assumptions for the project, substantially undercounts the expected traffic increase, and does not comport its analysis with the description or stated intended use of the project. But whether or not the traffic study is used in consideration with CEQA’s transportation element, the DEIR’s Greenhouse Gas analysis does depend on the traffic study. (DEIR 3.7-27, Staff Report p. 500.) As such, the flaws in the traffic study are a CEQA issue as well as a general plan issue, and the operational Greenhouse Gas analysis is inadequate.

For example, the 11 Accessory Dwelling Units, which are touted as providing additional workforce housing, are allocated only 4 AM Peak Hour outbound trips. Moreover, reasonable assumptions would suggest the multi-family units to lead to more trips for the residents of those units given the nature of the local workforce.

The traffic study fails to account for the unique nature of the Napa Valley economy and local transportation demands, and significantly understates the impact of the project. It also ignores the reality of life in Saint Helena. For example, the traffic report apparently incredibly claims that the 87 new units will result in only two (2) people driving their children to school by crossing Main at Adams – the main access to the project. And only one (1) will go pick their child up. (Traffic Study Figure 8, February 2023 Staff Report p. 2007.) And it ignores the significant impact that the project would have on evacuation routes in the event of an emergency.

Yet the traffic report also shows a nearly-quarter mile backup at the Pope Street bridge by 2040. (Id. p. 2031.) The report admits “the project would be inconsistent with the City’s LOS policies at the Silverado Agenda Item #5.11.

February 6, 2023

Trail/Pope Street intersection.” (Id. at 2039.) And, shamefully, the Traffic Report essentially throws up its hands in acknowledging that improvements to Silverado Trail and Pope Street are necessary; but because they might be hard, nothing can be done about it. (Id.) Despite its failings the Traffic Report does still include several required mitigation measures and improvements that are recommended to address traffic issues. (Id. at 2038-39.) Yet it appears none have been incorporated into the project. The project thus plainly is inconsistent with the general plan, whether or not LOS is considered as a CEQA element.

The suggestion that a statement of overriding considerations can be adopted now without attending to the previously identified issues is contrary to law. Prior to adopting a statement of overriding considerations, a finding must be made that the impact is unavoidable and that changes or alterations have been included to mitigate or avoid the significant impacts.4 That finding must be based on substantial evidence in the record.5 However, the record of the project, dating back more than a decade, is replete with evidence that traffic impacts of the project can indeed be mitigated, and failure to do so is contrary to the applicable general plan principles.

Both the above-noted improvements to Silverado Trail/Pope Street and the planned connection of Adams Street to Silverado Trail have been repeatedly identified as mitigations to the impacts and risks of the project. Further, connection of Adams Street to Silverado Trail would substantially lessen project vehicle miles traveled (VMT), allowing project traffic direct access to a major thoroughfare without the additional distance traveled through City streets. Because such improvements are specifically contemplated in the City’s long-term plans, but neither properly analyzed nor included as mitigation measures, failure to require the project to carry out this immediately-adjacent improvement that would directly mitigate the project’s impacts on VMT (and LOS) is contrary to the evidence in the record and clearly inconsistent with the General Plan.

Public Safety
These failings to mitigate the project’s impacts on the road network underscore its failure to seriously analyze its substantial danger to the public, including wildfire and flood risks. Although the EIR notes that the property actually burned during the Glass Fire, there is no other acknowledgment that the property currently serves as critical firebreak for the rest of the City. The Board of Forestry’s recently-adopted 2021 State Fire Regulations emphasize the need to preserve and implement firebreaks in projects.6 Removing this critical firebreak is a wildfire impact that is not even acknowledged, let alone analyzed and mitigated.

And that risk is substantially worsened by the failure to address the needed road improvements. Without connection of Adams Street to Silverado Trail and the mitigation of the Silverado Trail/Pope Street intersection conditions, the project presents substantial threats to public safety.7 The project lacks safe emergency access and egress and would worsen existing emergency evacuation times for residents of the 4 P.R.C. § 21081.
5 CEQA Guideline 15093.
6 The project is not technically subject to CAL FIRE’s jurisdiction, but the agency’s emphasis on firebreaks is highly instructive and persuasive.
7 E.g., DEIR App. K, p. 15 (February 2023 Staff Report p. 1989) (Finding of the current Pope Street bridge: “emergency access can be impeded due to congestion along the bridge, creating difficulty for services to be provided to areas along Silverado Trail.”)
Agenda Item #5.11.

February 6, 2023

City. The project creates specific threats to public safety by failing to mitigate its everyday traffic impacts and ignoring the potential for loss of life and property that could occur as a result of the increased traffic on already overburden public roads during a wildfire.

So too does the potential construction of housing behind a levee that appears to be substandard and poorly maintained. As noted by other commenters, the City has repeatedly failed to maintain the levee, yet is financially responsible for the massive liability a failure would cause. As the project is proposed behind a levee for which the City is entirely responsible, any failure thereof would result in ruinous liability to the City. Unless the applicant is conditioned to post a security for the liability that it is seeking to take on by developing in a high-risk location, the financial risk of the project cannot be concluded to warrant a statement of overriding considerations. As the project presents a real threat to the safety of the public, itshould be rejected irrespective of any other considerations -- whether or not it technically complies with the City’s zoning code or general plan (which as we have noted separately, it does not.) (Gov. C. § 65589.5(j)(1)(A) (“The housing development project would have a specific, adverse impact upon the public health or safety unless the project is disapproved.”)) Failure to provide Affordable Housing
A statement of overriding considerations requires balancing of, inter alia, the economic benefits of the project with its demands on the environment. However, the applicant hasseemingly withdrawn any intent to make the project affordable. There is no affordable housing agreement to consider that might balance the benefits of the project to the pressing need for affordable housing.8 Without a proposed affordability plan to consider, there is no basis to conclude that the project will provide the needed affordable housing that might warrant a statement of overriding considerations. (And this does not even begin to address the discriminatory design of the project, that proposes to squeeze a large number of multifamily units into a corner of the project, while building oversized lots that do not comply with the density minimum on the remainder of the project.) Statements of overrider consideration are required to explain in detail how and why the benefits of the proposed project outweigh the unavoidable, adverse environmental impacts and why the City is willing to accept such impacts (CEQA Guidelines 15093). We simply see no facts in the record that would offset the water, traffic, public safety, liability and General Plan consistency impacts created by this project.

Conclusion
The Saint Helena Citizensfor a Sustainable Future wantthe City to succeed and grow. But to do so, projects must be well designed, carefully thought through, and provide a benefit to the City and its residents, not the financial aims of an out-of-town developer.

As such, the project should be redesigned and conditioned, to provide at least the following:
• True water neutrality
• Connection of Adams Street to Silverado Trail
• Improvement of Silverado Trail/Pope Street Intersection 8 As noted separately, to the extent an affordable housing agreement is to be proposed in connection with the project, it must be considered concurrently in order to meaningfully balance the economic and social impacts of the project. Without that, any purported benefit would be purely speculative and lack substantial evidence.

Agenda Item #5.11.

February 6, 2023

• Financial security to the City in the event of a failure of the levee • An affordable housing agreement that actually provides for affordable housing in the project, not undefined funding of non-existent future projects
• A design that provides for consistent density and style of housing across the project; not a noncompliant subdivision of large homes, with an overcrowded multifamily parcel to boost its density.

All of these items are necessary to make the project safe, sound, and to truly warrant a statement of overriding considerations. Yet, asthe full confines of the project remain unknown, it is impossible to reach a reasonable conclusion on the current record. Given the applicant has had extensive opportunities to provide the required information, the project should not just be delayed again; it should be denied.

Sincerely,

DICKENSON, PEATMAN & FOGARTY PC
Joshua S. Devore
JSD:sol
cc: Ethan Walsh, City Attorney
Agenda Item #5.11.

JOSHUA S. DEVORE
[email protected]
October 31, 2022
Via Email:

Commissioner John Ponte, Chair, [email protected] Commissioner Autumn Anderson, [email protected] Commissioner Marika Rothfeld, [email protected] Commissioner Rosaura Segura, [email protected] Commissioner Christopher Warner, [email protected] City Manager Anil Comelo, [email protected]
Community Development Director Maya DeRosa, [email protected] RE: Hunter Subdivision Project Environmental Impact Report, File #PL10-040 Dear Chair Ponte, Commissioners, City Manager Comelo, Community Development Director DeRosa:

We represent the Saint Helena Citizens for a Sustainable Future, a diverse group of City residents who are extremely concerned by the City’s actions with respect to the referenced project.

Numerous members of the Citizens group have individually commented on the project in the past. They write now collectively due to what appears to be an imminent failure of the City to recognize and adhere to recent groundwater requirements.

Before the Planning Commission is a request to certify the Final EIR and approve a Tentative Map for the Hunter Subdivision project. There have been extensive comments on the failures of the EIR to consider basic detrimental aspect of the project. The Final EIR responses have failed to provide a good-faith effort at full disclosure by ignoring, distorting, or giving short-shrift to those comments. As a reminder, this project was tabled nearly a decade ago, in part due to a determined need to improve the Pope Street/Silverado Trail intersection as a result of the project. Obviously, the applicant hopes that has simply been forgotten, or that the City will ignore its level of service (LOS) analysis.

Though VMT analysis is indeed the latest requirement, the project is reviewed under the 1993 General Plan. LOS must be considered per General Plan policies 5.4.1 and 5.4.2. And while there is also an analysis of some portions of the current general plan for comparison, some of the most relevant plan 1500 FIRST STREET | STE 200 | NAPA, CA 94559 | T: 707.261.7000 DPF-LAW.COM Agenda Item #5.11.

October 31, 2022

policies are omitted, such as LU2.61 and CR1.42 The traffic study acknowledges the significant impact on traffic at Main and Pope Street, but ignores the worsening traffic at Pope/Silverado.3 That said, we will not restate all the issues with the EIR here, as they have been raised by more than 100 commenters and are too numerous to list. We do note now however one glaring problem in the proposed findings that requires, at the very least, additional analysis of a significant environmental issue facing all of California, sustainable groundwater management.

The project is for the subdivision of a 16.92 acre property. The EIR analyzed its proposed groundwater use of an on-site well of up to 17.16 acre-feet (AF) per year to provide for all on-site irrigation of public and private landscaping, as well as a small remnant of an existing vineyard. (DEIR 3.9-

40.) (The EIR also fancifully suggests that the remainder of the project will be water neutral, despite its demand for nearly 20 AFY beyond that produced by the onsite well. But that fantasy is not even the instant problem.)
The proposed finding regarding the project’s consistency with the Napa Valley Subbasin Groundwater Sustainability Plan (GSP) is contrary to the evidence. Proposed Hydrology and Water Quality finding I. 7. states:

The Project would not conflict with or obstruct implementation of a water quality control plan or sustainable groundwater management plan. The County works with local jurisdictions, including the City, to sustainably manage the Napa Valley Groundwater Subbasin in compliance with SGMA. In its most recent assessment of conditions, the County, through its technical consultant, determined that the Subbasin is not exhibiting significant impacts with regard to the applicable sustainability indicators defined by SGMA, including lowering of groundwater levels, depletion of groundwater in storage, degradation of groundwater quality, and depletion of interconnected surface waters.
(Staff Report p. 50-51 (emphasis added.))
This is inconsistent with the Napa Valley Subbasin Groundwater Sustainability Plan’s (GSP) recent assessment, published in January 2022:

Groundwater levels reflect the amount [of] groundwater in storage and the movement of groundwater. Monitoring data exhibit generally stable long-term trends, although conditions are largely dependent on seasonal precipitation input.

Several wells located near the Napa Valley Subbasin margin in the northeastern Napa area, southwestern Yountville area, and southeastern St. Helena area show 1 “LU2.6 Allow residential density at the higher end of the permitted range for single family development within Medium and High Density Residential Land Use designations as long as the development character of the single family area is maintained, including lot widths, orientation to street, building heights, onsite parking, traffic, and noise, among other considerations.” (2019 General Plan.) 2 “CR1.4 Develop and use, in addition to intersection level of service standards, performance measures that consider all road users to determine transportation impacts of new development.” (2019 General Plan.) 3 DEIR Appendix K, p. 36 Table 7 (emphasizing worsening delay at Main Street/Pope Street - Mitchell Drive, but ignoring change in AM Peak LOS at Silverado Trail/Pope Street from LOS C to LOS E.) 1500 FIRST STREET | STE 200 | NAPA, CA 94559 | T: 707.261.7000 DPF-LAW.COM Agenda Item #5.11.

October 31, 2022

periods of groundwater decline during times of drought. Continued monitoring of groundwater levels will be important to evaluate future hydrologic and climatic influences.
(Napa Valley Subbasin Groundwater Sustainability Plan Summary, Executive Summary (Jan. 2022) p. 2, available at https://www.countyofnapa.org/DocumentCenter/View/23549/GSP_Executive-SummaryAbstract?bidId=.) Indeed, while the GSP consists of a dozen separate sections, plus an Executive Summary and an Executive Summary Abstract, this critical contradictory information is found on the top of the second page of the Executive Summary Abstract –the simplest and first document of the GSP. (See https:// www.countyofnapa.org/3218/GSP-Sections.) It is indeed one of the most prominent findings of the GSP that wells in southeastern Saint Helena are showing evidence of groundwater decline during this ongoing drought.

Thus, the proposed contrary finding on this critical matter not only is not supported by substantial evidence, it is directly contrary to the most recent information.

As a result of these findings, Napa County has recently substantially revised downward the allocation of groundwater to subbasin, valley-floor properties. Although such properties were previously allocated 1 acre-foot of water per acre, per year, going forward all uses will be limited to 0.3 AF/acre/ year. This includes both existing and proposed wells. Any existing well usage above that level is prohibited to increase above its current net usage. (See Napa County Well Permit Standards FAQ, available at https://www.countyofnapa.org/DocumentCenter/View/25906/Well-Permit-StandardsFAQs---15-July-2022.) New domestic wells outside the subbasin may use 2 AF/year total (not per acre), and new public water supply wells may use their parcel specific recharge.4 But the well proposed to deliver the 17+ AF is not a new well.

Although the project is conditioned to require offsetting its Municipal water demand of 19.8 AF/year, no recognition of the GSP Subbasin limitations of groundwater use is made for the additional

17.16 AF/year to be pumped from the onsite well. The EIR does disclose that the well is currently inoperable meaning that the existing baseline for groundwater use is zero (DEIR 3.9-42 (Staff Report p. 594). As such the new water use proposed would be required to be limited to no greater than 0.3 AF/AC per year to comply with the GSP sustainable groundwater limitations.

However, there is no discussion of this GSP limitation and its potential impacts on rural residences and agriculture let alone any mitigation proposed or required. Instead, DEIR Appendix L, the September 9, 2021 Well Capacity Study Memorandum, referenced the prior 1 AF/AC allotment that has been reduced by 70%. Yet that memorandum emphasizes that “it is recommended that the annual groundwater use conform with County policy.”(DEIR Appx. L, p.1 (emphasis in original.) (No well interference analysis appears to have been conducted either, despite the well being within 1,500 feet of the Stonebridge wells.)
4 WAA Tier 1: Water Use for Napa County, available at
https://www.countyofnapa.org/DocumentCenter/View/25905/Well-Permit-Standards-Applicability-Tables---15- July-2022
1500 FIRST STREET | STE 200 | NAPA, CA 94559 | T: 707.261.7000 DPF-LAW.COM Agenda Item #5.11.

October 31, 2022

In sum, while the project and its EIR focused on water neutrality for its municipal use, it failed to adequately evaluate onsite groundwater pumping, the GSP current basin conditions, pumping limitations and the resulting significant impact on the environment.

Very truly yours,

DICKENSON, PEATMAN & FOGARTY
Joshua S. Devore
JSD/sol
cc: Ethan Walsh, City Attorney, [email protected]
St. Helena Citizens for a Sustainable Future
Maria Villegas
Sandra McCorkle
Ben Alderman
Elizabeth Alderman
Martha Angus
Dyan Beito
Richard Beito
Linda Brown
Ron Brown
Bernerd Buckley
Cindy Ford
John Ford
Gale Greisen
Sherri Kelly
Marina Lavagnino
Katie Leinen
Sandra Lowry
Isobel Luria
John Milliken
Ann Nevero
Jan Oddy
Anne Offord
Becky Palmisano
Dave Palmisano
Laura Pohlen
Patrick Pohlen
Laurence Schlatter
Rene Schlatter
Dave Valentine
Dave Wilkinson
1500 FIRST STREET | STE 200 | NAPA, CA 94559 | T: 707.261.7000 DPF-LAW.COM Agenda Item #5.11.

Attachment 17
Response to Comments on Draft EIR
DP&F Letter of Oct 31, 2022
On October 31, 2022, Joshua Devore sent a letter on behalf of Saint Helena Citizens for a Sustainable Future with comments on the Draft EIR for the proposed. The points raised in his letter are addressed below.

The letter isincluded as Attachment 17 to the February 7, 2023, Planning Commission staff report.

Response numbers below refer to paragraph numbers as shown in Attachment 16.

1. Analysis of Level of Service (LOS) is provided in this staff report.

2. As pointed out in this comment, Vehicle Miles Traveled (VMT) has, by state law, replaced LOS as a topic for analysis in an environmental impact report. An analysis of the project’s conformance with General Plan policies is provided in this staff report.

This comment also highlights an error in the traffic analysis (shown a change in the level of service at Pope/Silverado from LOS C to LOS E). This typographical error has been corrected (see Attachments 6l and 7 to this report) to show that, while a less than significant increase in delay at this intersection will occur, the LOS will remain at “C”.

3. The issue of conformance with the City’s water neutrality requirements is discussed in this staff report and in Master Response #2 to comments on the Draft EIR.

4. Please see Master Response #2 to comments on the Draft EIR. The onsite well will offset approximately 17 acre-feet of demand (reducing the use of City water by this amount).

The remaining 19.8 acre-foot offset is required by the conditions of approval to occur through the completion of one or more system improvements prior to issuance of building permits (see condition of approval #72).

5. City staff has carefully reviewed the issues associated with the use of the existing private well for onsite irrigation and outdoor uses, and has determined that the proposed use of the well is consistent with all applicable laws and programs, and that the proposed project is consistent with the Groundwater Sustainability Plan. The source for the conclusion regarding impacts to the groundwater basin, as discussed in the Draft EIR (page 3.9-40), is the “Napa County Groundwater Sustainability – Annual Report for Water Year 2020, (April 2021)” prepared by Luhdorff and Scalmanini Consulting Engineers for Napa County in April 2021, which determined that, “… the Subbasin was found to continue to exhibit stable groundwater levels, even despite a very dry 2020 water year, as it has historically, and has continued to be operated within the sustainable yield of the Subbasin (of between 17,000 and 20,000 AFY)” and “... Annual storage changes have commonly 1 Agenda Item #5.11.

fluctuated between positive and negative values dating back to 1988; however, the median change is a positive increase of 1,784 AF, indicating that groundwater demands are not resulting in depletion of the aquifer.”

6. The impact of the use of the existing well for onsite irrigation is addressed in detail in the Draft EIR and in Master Response #2, which addresses similar comments on the Draft EIR.

7. Please see the response to comment 5.

8. Please see the response to comment 5.

9. Please see the response to comment 5. Staff’s conclusion is that the existing well is not subject to the pumping limits discussed in this comment.

10. Please see the response to comment 9.

11. Please see the response to comment 5. Regarding impactsto the City’s Stonebridge wells, note that the capacity study performed on the existing well found no reduction in groundwater levels during sustained pumping, indicating that impacts to the City’s Stonebridge wells would result from the use of the well for onsite landscaping and outdoor uses.
2 Agenda Item #5.11.

JOSHUA S. DEVORE
[email protected]
February 6, 2023
Via Email:

Commissioner John Ponte, Chair, [email protected] Commissioner Autumn Anderson, [email protected] Commissioner Marika Rothfeld, [email protected] Commissioner Rosaura Segura, [email protected] Commissioner Christopher Warner, [email protected] City Manager Anil Comelo, [email protected]
Community Development Director Maya DeRosa, [email protected] RE: Hunter Subdivision Project Tentative Map No. 2022-001, File #PL10-040 Dear Chair Ponte, Commissioners, City Manager Comelo, Community Development Director DeRosa:

As you may recall, we represent the Saint Helena Citizens for a Sustainable Future, a diverse group of City residents. We wrote on October 31, 2022, regarding the blatant failures of the applicant to comply with the City’s zoning code. The Staff Report for the February 7, 2023, Special Meeting of the Planning Commission (“February 2023 Staff Report”) attempts to respond to that letter in Attachment 18. (Our October 31 letter and Attachment 18 are attached for your convenience.) The applicant has also made some minor adjustments to its submitted map in response.

Both the February 2023 Staff Report and the Applicant’s response clearly demonstrate approval would be improper.

Violation of Subdivision Ordinance Section 16.04.120
The Applicant still fails in its fundamental obligation to describe the project it wants approved. As you may recall, the prior Staff Report for the postponed November 1, 2022, Planning Commission hearing (November 2022 Staff Report) described the project for consideration as follows:

The proposed project being considered by the Planning Commission at this time is a Tentative Subdivision Map to subdivide an approximately 17-acre parcel of land in the eastern area of the city, east of the existing terminus of Adams Street. The proposed subdivision would create lots for 51 single family homes, and a separate parcel (lot 52) on Agenda Item #5.12.

February 6, 2023

which multi-family attached housing units would be built. The proposed Tentative Subdivision Map is included as Attachment 3 to this report.

The applicant proposes to include Accessory Dwelling Units (ADUs) with 11 of the 51 single family homes. The Commission should note that the applicant has not yet filed an application for any specific development project; this would be done after the approval of the tentative map and recordation of the Final Map (following approval of an Affordable Housing Agreement and compliance with other relevant tentative map conditions). Approval of the tentative subdivision map would only provide for the subdividing of the property; future applications would define the exact development that would take place on the lots created by the subdivision. (November 2022 Staff Report, p. 19, emphasis added). The updated Staff Report for the February 7, 2023, meeting retains the same description. (February 2023 Staff Report, pp. 5-6.) That is, nothing has changed about the fundamental decision before the Commission.

Our October 31, 2022, letter made clear that this is expressly illegal. The tepid response to this failing in Attachment 18 essentially concedes this is true – that the discretionary submittals were not made concurrently, though they should have been. But the response nevertheless suggests that the Commission should move forward anyway, essentially arguing it is now too late to follow the zoning code.

Again, Title 16 of the Saint Helena Municipal Code, the City’s Subdivision Ordinance, provides unambiguously that:

All applicants for tentative maps and tentative parcel maps shall concurrently submit applications for all other discretionary approvals, including but not limited to, conditional use permits, variances, rezonings, and general plan amendments. (Subdivision Ord., § 16.04.120 (emphasis added.)) This law is not new and has not changed since the Project’s application was filed.

Attachment 18 contends that despite this clear language, the Commission should not reject the application until all of the required concurrent submissions are made, because the tentative map application was accepted as “complete” in March of 2011. The Staff Report fails to explain how that completion date relates to the Applicant’s failure, over the last dozen years, to “concurrently” submit the required applications for all other discretionary approvals. “Concurrently” and “simultaneously” are not the same – and obviously, substantial other documentation has been submitted for consideration in the meantime regarding the project following the “completeness” date. The Permit Streamlining Act specifically contemplates the requirement for additional information following a completeness determination, and states specifically that it “shall not be construed as limiting the ability of a public agency to request and obtain information which may be needed in order to comply with [CEQA].” 1 Because all of the components of the project need to be evaluated as a whole to avoid piecemealing, the requirement in the City’s Subdivision Code to provide all discretionary submissions concurrently is not 1 Cal. Gov. C. § 65944(c).

Agenda Item #5.12.

February 6, 2023

merely a formality.
2 The failure to require concurrent submission of the required discretionary approvals is a current, ongoing, express objective failure to follow the zoning code.

Yet, rather than continue the matter until all of the necessary information to consider the full scope of the project is presented, Staff instead suggests that the application must be considered now pursuant to Government Code Section 65589.5(j)(2), because the applicant was not provided “with written documentation identifying the provision or provisions, and an explanation of the reason or reasons it considers the housing development to be inconsistent, not in compliance, or not in conformity…. ” within 30 days of the date that the application is determined to be complete. But that provision not only does not apply to the instant decision – this is a subdivision, not a housing project3 – it did not exist at the time the application was submitted and deemed “complete.” It was not added to the Housing Accountability Act until 2015 in AB1516. Proceeding based on a supposed failure to comply with a rule that did not exist and does not apply is a red herring.

The City has the opportunity and obligation to have the applicant comply with the zoning code now. Not doing so would be a clear failure to proceed as required by law.

Violation of Subdivision Ordinance Section 16.16.020
This is not merely an academic or technical fault. The failure to submit concurrently the required discretionary approvals makes it impossible to consider the whole of the project. Following our October 31, 2022, letter which noted clear defects in the tentative map, the Applicant indeed updated the map in a half-hearted effort to correct certain of the identified shortcomings.

The map previously presented for approval showed nothing in Lot 52. In the latest submission, the Applicant has attempted to cure some of those defects. TM1 now indicates Lot 52 is “Future Multi-Family Residential.” Similarly, TM3 now shows six large, proposed pad elevations for “Future Multi-Family Residential.”
This change, while now better-complying with the Subdivision Code, is fatal to the application. The future Lot 52 is zoned Medium Density Residential (MR) and designated as MDR in the General Plan. As correctly noted in the Staff Report:

The MDR designation providesforsingle-family detached and attached homes,secondary residential units, public and semi-public uses, and similar and compatible uses.

Residential densities shall be in the range of 5.1 to 12.0 dwelling units per gross acre. (February 2023 Staff Report p. 2.) Multifamily units are allowed only on specific designated “MR zoned parcels, which are identified as ’Key Housing Sites’ in Table 42 of the city’s 2015-2023 housing element.” (Zoning Code § 17.40.020 N.). The Hunter project is not included in that list. Thus, under the general plan, the site is not indicated for multifamily use, and multifamily units are not an allowed use. 2 An EIR must analyze all the impacts of the foreseeable approvals for the project, including future ministerial approvals.
3 Indeed, the Staff Report says this explicitly on page 6: “Approval of the tentative subdivision map would only provide for the subdividing of the property; future applications would define the exact development that would take place on the lots created by the subdivision.”
Agenda Item #5.12.

February 6, 2023

As multifamily units are not allowed under the zoning and general plan designation, Applicant appears even more clearly intent to have the Planning Commission bless a future, unsubmitted project, that is not within the Commission’s power. A use permit is required, and the applicant must show that the project is consistent with all of the required provisions of Chapter 17.112. (Zoning Code § 17.40.030.) While the Applicant still fails to submit the required information, even a cursory review of the latest submission at TM3 shows that the building pads are immediately adjacent to the property lines, and plainly not compliant with the required setbacks.

Moreover, the building pads shown in TM3 do not match with the conceptual layout used in the EIR. (Compare Staff Report at p. 152 with p. 230.) Simply put, while it remains unknown what the actual project proposed is, the proposed Tentative Map is inconsistent with the EIR, and thus must be rejected.

Thus, there is no current basis to conclude that the tentative map as presented will actually be built to include the indicated multifamily units; and as such, no basis to reach a finding that the project actually complies with the density minimum based solely on a “Future” unsubmitted and unpermitted project.

Conclusion
A “tentative map” is somewhat of a misleading title. The “tentative map” must be complete, and fully set out the project and its conditions. It is tentative only in that it has not been built – not that it is subject to change. Again, the Planning Commission can act only on what is actually presented to it for consideration.

What has been presented is incomplete, but what has been does not comply with the Zoning Code or General Plan. Because the Planning Commission’s function is to evaluate the projects’ conformance with the Zoning Code and General Plan, it is required to reject the Map as presented.

The Applicant’s failure to address objective deficiencies in its submission prior to reconvening a hearing on its application after more than a dozen years is disappointing, but not surprising. However, the City must proceed as required by the current, operative law. Failure to proceed as required by law would only result in an immense waste of resources that could be easily avoided.

Given the applicant’s repeated failure to comply with the Zoning Code and General Plan, the project should be denied.

Sincerely,

DICKENSON, PEATMAN & FOGARTY PC
Joshua S. Devore
JSD:sol
cc: Ethan Walsh, City Attorney
Agenda Item #5.12.

JOSHUA S. DEVORE
[email protected]
October 31, 2022
Via Email:

Commissioner John Ponte, Chair, [email protected] Commissioner Daniel Hale, Vice Chair, [email protected] Commissioner Autumn Anderson, [email protected] Commissioner Marika Rothfeld, [email protected] Commissioner Rosaura Segura, [email protected] Commissioner Christopher Warner, [email protected] City Manager Anil Comelo, [email protected]
Community Development Director Maya DeRosa, [email protected] RE: Hunter Subdivision Project Tentative Map No. 2022-001, File #PL10-040 Dear: Chair Ponte, Commissioners, City Manager Comelo, Community Development Director DeRosa:

We represent the Saint Helena Citizens for a Sustainable Future, a diverse group of City residents who are extremely concerned by the City’s actions with respect to the referenced project.

Numerous members of the Citizens group have individually commented on the project in the past. They write now collectively due to their concern with what appears to be an imminent basic failure of the City to follow its own law.

Before the Planning Commission is a request to certify the EIR and approve a Tentative Map for the Hunter Subdivision project. This letter addresses the latter, the requested approval of the Tentative Map.

The presented Tentative Map, Attachment 3 to the Staff Report (TM 2022-01), does not comply with either the City’s Subdivision Ordinance, Zoning Code nor the General Plan. It is important to note that the Planning Commission is not acting on any conceptual map that was presented in the EIR.

Rather, as far as consideration of the approval of the Tentative Map, TM 2022-001, Attachment 3 is the actual Map the Commission is to act upon.1
1 We also note that it appears from public records that the property was sold to White Fang Properties, LLC in June 2021, but such sale was not recorded until earlier this month. (Napa Recorder Doc. 2022-0018523, June 2, 2021 Grant Deed from Dennis R. Hunter to White Fang Properties, LLC, a South Dakota LLC, recorded October 10, 2022.) It is thus not clear who the proper applicant is, and whether the property owner is a party to the application. There is no reference to White Fang Properties anywhere in the nearly 3,000-page agenda packet. It appears at least that the Owner information on the proposed Map is incorrect. 1500 FIRST STREET | STE 200 | NAPA, CA 94559 | T: 707.261.7000 DPF-LAW.COM Agenda Item #5.12.

October 31, 2022

This Tentative Map is fatally defective and must be rejected.

Violation of Subdivision Ordinance Section 16.04.120
The Staff Report describes the project for consideration as follows:

The proposed project being considered by the Planning Commission at this time is a Tentative Subdivision Map to subdivide an approximately 17-acre parcel of land in the eastern area of the city, east of the existing terminus of Adams Street. The proposed subdivision would create lots for 51 single family homes, and a separate parcel (lot 52) on which multi-family attached housing units would be built. The proposed Tentative Subdivision Map is included as Attachment 3 to this report.

The applicant proposes to include Accessory Dwelling Units (ADUs) with 11 of the 51 single family homes. The Commission should note that the applicant has not yet filed an application for any specific development project; this would be done after the approval of the tentative map and recordation of the Final Map (following approval of an Affordable Housing Agreement and compliance with other relevant tentative map conditions). Approval of the tentative subdivision map would only provide for the subdividing of the property; future applications would define the exact development that would take place on the lots created by the subdivision. (Staff Report, p. 19, emphasis added).
1500 FIRST STREET | STE 200 | NAPA, CA 94559 | T: 707.261.7000 DPF-LAW.COM Agenda Item #5.12.

October 31, 2022

This is expressly illegal.

Title 16 of the Saint Helena Municipal Code, the City’s Subdivision Ordinance, provides unambiguously that:

All applicants for tentative maps and tentative parcel maps shall concurrently submit applications for all other discretionary approvals, including but not limited to, conditional use permits, variances, rezonings, and general plan amendments. (Subdivision Ord., § 16.04.120 (emphasis added.))
The recognition by staff that “future applications” are required renders the submission incomplete, and directly contrary to Section 16.04.120’s mandate that the requests be made “concurrently.” Such a system makes perfect sense, as otherwise it is impossible to consider the whole of the project.

In short, Applicant’s proposal that ‘we will figure out the rest later’ is expressly counter to the City’s Subdivision Ordinance, and requires rejection.

Violation of Subdivision Ordinance Section 16.16.020
As a result of what appears to be a ‘get one foot in the door’ tactic, the submitted Map is objectively deficient, and fails to comply with the City’s Tentative Map requirements. Section 16.16.020 of the Subdivision Ordinance dictates the requirements for a Tentative Map. It requires that numerous specific “proposed design elements and improvements shall be shown on the tentative map or described on an attached written statement,2” including that:

The proposed use of each lot, lot layout and dimensions and area of each lot.

Engineering data shall show the approximate finished grading of each lot, the preliminary design of all grading, the elevation of proposed building pads, the top and toe of cut and fill slopes to scale and number of each lot. (Subdivision Ord., § 16.16.020 C.3.) However, the Map presented for approval shows nothing in Lot 52.

No usage of Lot 52 is shown (See Map Sheets TM1, TM3.) No finished grading of Lot 52 is shown. (See Map Sheet TM3.) No elevation of Lot 52 building pads is shown. (Id.) While these details are included for the remaining lots, Lot 52 is blank. As such, the Map does not comply with the Subdivision Ordinance’s requirements to detail each lot, unless Lot 52 is actually proposed to have no development.

Indeed, the presented Map Sheet TM2 shows the current use of Lot 52 as vineyard. As no changes to Lot 52 are proposed, assuming that the Map presented actually complied with Section

16.16.020, it would designate Lot 52 as open space. (Subdivision Ord. § 16.16.020 C.6.) Nothing on the Map, nor any attachments or plan notes that are actually presented for approval, designates any other usage, grading, elevation or other change to Lot 52.
2 There is no “attached written statement;” only a suggestion of a future submission detailing the actual development to be proposed.
1500 FIRST STREET | STE 200 | NAPA, CA 94559 | T: 707.261.7000 DPF-LAW.COM Agenda Item #5.12.

October 31, 2022

While the Staff Report suggests that there may be a future specific description of 25 units of attached multi-family housing presented, no description has been provided for consideration or approval. To the extent different usage and grading of Lot 52 is proposed, it “shall” be included on the Tentative Map. Given the conflict between the Staff Report, Applicant’s apparent future plans, and the Map presented, it is plain that the Map presented for approval does not comply with Section 16.16.020 and must be rejected.

Violation of General Plan and Zoning Code
As such, the Map under consideration details a subdivision containing the required details only for 51 developed lots, and one open space lot. Those lots are proposed to consist of 51 Single Family Homes, and 11 Accessory Dwelling Units (ADUs). The Map under consideration thus provides plans for 62 units on the 16.92-acre parcel.

The parcel is zoned Medium Density Residential (MR) and designated as MDR in the General Plan. As correctly noted in the Staff Report:

The MDR designation provides for single-family detached and attached homes, secondary residential units, public and semi-public uses, and similar and compatible uses. Residential densities shall be in the range of 5.1 to 12.0 dwelling units per gross acre.
(Staff Report pp. 15-16.) The Map that is actually presented for consideration provides for a density of only 3.66 units per acre (62/16.92). It must be rejected as not complying with the Zoning Code or General Plan.

While Applicant appears intent to have the Planning Commission bless a future, unsubmitted project, that is not within the Commission’s power. The Planning Commission can act only on what is actually presented to it for consideration, and what has been presented does not comply with the Zoning Code or General Plan. Because the Planning Commission’s function is to evaluate the projects’ conformance with the Zoning Code and General Plan, it is required to reject the Map as presented.

There appears to be a suggestion that the Commission could provide Conditions that the Applicant must demonstrate by future actions that the project satisfies the General Plan. (Compare Proposed Condition of Approval (CoA) 14 (“The primary purpose of this review is for compliance with the General Plan and Zoning Ordinance.”) with CoA 27 (a future “Affordable Housing Agreement shall demonstrate how the project satisfies the minimum density requirement of the General Plan.”) (Staff Report pp. 143-144.)
But the Planning Commission is required to make a finding that “the proposed subdivision, together with the provisions for its design and improvement, is consistent with the general plan, any applicable specific plan, and other applicable provisions of this code.” (Subdivision Ordinance §

16.16.080 (emphasis added.)) At its most generous, the record suggests only that the subdivision could be compliant with the minimum density if future actions are taken. 1500 FIRST STREET | STE 200 | NAPA, CA 94559 | T: 707.261.7000 DPF-LAW.COM Agenda Item #5.12.

October 31, 2022

Indeed, the very first element of the General Plan Consistency Analysis provides that “Conformance with the required General Plan density will be confirmed at the time an Affordable Housing Agreement and development plans are submitted for review and approval.” (Staff Report Attachment 4, p. 165 (emphasis added.)) That is not sufficient to make the finding required for approval that the project is compliant now.

Most concerningly, that same analysis element cryptically states that “If constructed with these types and numbers of units, the project would conform with the minimum density required by the General Plan. There are other alternative scenarios which would achieve the minimum density; the proposed subdivision map does not preclude achieving the minimum residential density required by the General Plan.” (Id. (emphasis added.)) That analysis is based on a hypothetical scenario of 51 single family homes, 11 ADUs, and 25 multi-family units. But as no multi-family development on Lot 52 is actually shown on the tentative map (but all of the other lots are described), the analysis apparently suggests that perhaps the applicant could instead build 51 single family homes with 36 ADUs using the proposed map. But there is no way to know, because the submission does not comply with City Subdivision Ordinance.

Certainly, a finding merely that the project is not precluded from meeting the General Plan is not what the City code envisions. The Commission must make a finding that the project is compliant. As the Map that is before the Commission does not, as currently presented, meet the General Plan or Zoning Code requirements, it must be rejected.

Conclusion
The Saint Helena Citizens for a Sustainable Future are not anti-growth. They are in favor of responsible City management, informed decision making, and adherence to law. They are concerned with the environment, and equity in development. The proposed project that has been presented is for large lots for single family homes. A number of those lots would have income-producing ADUs, for the single-family homeowners to profit by.

The members of the Citizens group are unable to fully consider the project however, as no actual proposal for low-income or multi-family housing units has been presented. But it appears the Applicant will relegate such development to a corner of the property, rather than fairly disperse them throughout a development that evenly complies with the General Plan and Zoning Code density requirements. The project’s proposal appears to destroy an existing vineyard with the (unspecified future) multifamily units to bulk up the unit count on a development that does not comply with the General Plan or Zoning Code density requirements.

This is directly contrast to 1993 General Plan Policy 4.3.5:

Require future residential development to conform to the pattern and density of older, neighboring areas of town in order to complement existing town character and ensure that densities are high enough to protect against unnecessary incursion into vineyard agricultural areas.
1500 FIRST STREET | STE 200 | NAPA, CA 94559 | T: 707.261.7000 DPF-LAW.COM Agenda Item #5.12.

October 31, 2022

(1993 General Plan Policy, Staff Report p. 166 (emphasis added.)) Current General Plan Policy 3.1 is functionally identical. (“Require future development to conform to the pattern and density of the neighboring areas. In order to complement existing town character and protect against incursion into vineyard agricultural areas.” (Staff Report p. 180.))
Thus, the project – a large non-conforming subdivision with a potential future, dense multifamily parcel to compensate – should not simply be deferred for further consideration of the missing multi-family elements, but it should be rejected in its entirety.

Very truly yours,

DICKENSON, PEATMAN & FOGARTY
Joshua S. Devore
JSD/sol
cc: Ethan Walsh, City Attorney, [email protected]
Saint Helena Citizens for a Sustainable Future:

Maria Villegas
Sandra McCorkle
Ben Alderman
Elizabeth Alderman
Martha Angus
Dyan Beito
Richard Beito
Linda Brown
Ron Brown
Bernerd Buckley
Cindy Ford
John Ford
Gale Greisen
Sherri Kelly
Marina Lavagnino
Katie Leinen
Sandra Lowry
Isobel Luria
John Milliken
Ann Nevero
Jan Oddy
Anne Offord
1500 FIRST STREET | STE 200 | NAPA, CA 94559 | T: 707.261.7000 DPF-LAW.COM Agenda Item #5.12.

October 31, 2022

Becky Palmisano
Dave Palmisano
Laura Pohlen
Patrick Pohlen
Laurence Schlatter
Rene Schlatter
Dave Valentine
Dave Wilkinson
1500 FIRST STREET | STE 200 | NAPA, CA 94559 | T: 707.261.7000 DPF-LAW.COM Agenda Item #5.12.

Attachment 18
Response to Comments on Tentative Subdivision Map
DP&F Letter of Oct 31, 2022
On October 31, 2022, Joshua Devore sent a letter on behalf of Saint Helena Citizens for a Sustainable Future with comments on the proposed tentative subdivision map. The points raised in the letter are addressed below.

Comment: The letter notes that the tentative map lists the property owner as Dennis R. Hunter, but the property that is the subject of the tentative map was recently conveyed to White Fang Properties, LLC.

Response: The tentative subdivision map and proposed resolutions have been updated to reference the new property owner.

Comment: The letter states that the tentative map must be denied because Municipal Code Section 16.04.120 states that applicants for tentative maps shall concurrently submit applications for all other discretionary approvals. In this case, the City is considering only the tentative subdivision map, and the applicant will need to apply for and secure additional discretionary approvals prior to the actual construction of the project.

Response: Staff disagrees that this section constitutes grounds for denying the tentative subdivision map. Section 16.04.120 sets forth a requirement that applies at the time of submission of the tentative map application, and at the most dictates that the Planning Director require concurrent submission of application for other discretionary approvals before the tentative map application was deemed complete. Asstaff has noted, the application for this map was accepted as complete on March 25, 2011. To the extent that City were to require compliance with this section, it should have done so at the time the tentative map was deemed complete rather than using it as ground for denial after fully processing the application. This is especially true given the restrictions that the State Legislature has placed on local agencies’ discretion to deny housing development projects. Government Code Section 65589.5(j)(2) provides a limited time for determine whether a housing development project is compliant with existing objective land use requirements. Specifically, Section 65589.5(j)(2) reads as follows:
(A) If the local agency considers a proposed housing development project to be inconsistent, not in compliance, or not in conformity with an applicable plan, program, policy, ordinance, standard, requirement, or other similar provision as specified in this subdivision, it shall provide the applicant with written documentation identifying the provision or provisions, and an explanation of the reason or reasons it considers the housing development to be inconsistent, not in compliance, or not in conformity as follows:
(i) Within 30 days of the date that the application for the housing development project is determined to be complete, if the housing development project contains 150 or fewer housing units.
1 Agenda Item #5.12.

. . .
(B) If the local agency fails to provide the required documentation pursuant to subparagraph (A), the housing development project shall be deemed consistent, compliant, and in conformity with the applicable plan, program, policy, ordinance, standard, requirement, or other similar provision.

There is no record that staff notified the applicant that other discretionary applications must be submitted concurrently prior to or immediately after deeming the tentative map application complete. Based on the restrictions imposed by Government Code Section 65589.5(j)(2), staff does not believe that the City can deny the application based on a failure to comply with Section

16.04.120.

Comment: The letter asserts that the tentative map is not compliant with the City’s Subdivision Ordinance because the map does not show the use, approximate finished grading or elevation of proposed building pads for Lot 52.

Response: The tentative map has been updated to show the use, approximate finished grading and elevation of proposed building pads for Lot 52.

Comment: The letter asserts that the tentative map is not consistent with the General Plan and Zoning Code, arguing that the subdivision map provides for 62 units (the single family units and ADUs), and characterizing the 3.13 acre property where the multifamily housing development as “open space.” Based on this characterization, the letter argues that the density of the tentative map is only 3.66 units per acre.

Response: Staff does not agree with this characterization of the proposed density for this tentative map. In order to approve the tentative map, the City Council must find that the tentative map is consistent with the General Plan and the Zoning Code. In order to find that the map is consistent with the General Plan and Tentative Map, and confirm that when the project is developed, the map should demonstrate that it can meet the density requirements for this property as required by the General Plan and Zoning designations. The tentative map meets this requirement. The tentative map demonstrates that the map as currently configured allows for the development of the property at a density that that is within the allowed density for the MDR/MR land use and zoning designation. The applicant has indicated that they will develop a specific number of ADUs as part of the project, and intend to develop the 3.13 acre property as a multifamily development comprised of 25 units. The 3.13 acre parcel is not designated orzoned for open space, and should not be considered as such. Between the single family units, ADUs and multifamily development, the tentative map demonstrates how the required density can be achieved, and therefore demonstrates consistency with the General Plan Further, the conditions of approval assure that priorto approval of a final map, the applicant will demonstrate specifically how the General Plan and Zoning density will be met prior to approval of the final subdivision map (see Condition of Approval #24). The tentative map therefore ensures not only that the development of this property can meet the density requirements of the General Plan and Zoning 2 Agenda Item #5.12.

Code, but that it will do so. The tentative map therefore is consistent with the density requirements of the General Plan and Zoning Code.
3 Agenda Item #5.12.

1 Attachment 28
Response to Letter from the law firm of DP&F, dated 2-6-23, titled, “Hunter Subdivision Project Environmental Impact Report, File #PL10-040”
On February 6, 2023, Joshua Devore sent a letter on behalf of Saint Helena Citizens for a Sustainable Future with comments on the Draft EIR for the proposed. The points raised in his letter (summarized) are addressed below.

The letter is included as Attachment 17 to the February 7, 2023, Planning Commission staff report.

Comment: “…significant new information contradicting the basis for the project’s impact on groundwater has been made available that has not been analyzed or considered in the project’s EIR.
“The significant new information from 2022 is that “Several wells located near the Napa Valley Subbasin margin in the northeastern Napa area, southwestern Yountville area, and southeastern St. Helena area show periods of groundwater decline during times of drought.” Simply ignoring this evidence of an increase in the severity of the project’s impacts on groundwater resources is not reasonable.”
Comment: “… the water neutrality analysis that credits more than 17 acre-feet of water use to “groundwater” as opposed to the City’s water (and thus subject to its water neutrality ordinance) appears to ignore that the project site well may be drawing from the same basin that supplies the City’s wells. As such, there does not appear to be an analysis of well interference which would suggest that the onsite well is actually any different source of water than the City’s wells. Thus, the project’s water neutrality analysis should have included the entirety of the project’s water use, without any exclusion for the well.” Response: This comment does not raise new information but instead reiterates known risks related to groundwater availability during drought conditions. This potential risk and the mitigation measures imposed to avoid and reduce potentially significant impacts with regard to the Hunter Development’s use of water are discussed at length in the FEIR. Further, the Napa Groundwater Sustainability Annual Report Water Year 2021 (Napa GSP 2021 Update), Issued March 2022, illustrates the impacts of the current drought. However, the Napa GSP 2021 Update only considers a "snapshot" of water availability and is not intended to be a measure of persistent or future conditions. Accordingly, the data provided in the Napa GSP 2021 Update does not trigger the need for recirculation of the Hunter FEIR. As stated in the Napa GSP 2021 Update, Section 6.6, which states on pp. 95: "...the available informaEon on the occurrence and duraEon of MT (measurable threshold) exceedances at groundwater level and depleEon volume monitoring sites does not reflect a persistent undesirable result, though the MTs are set such that historical conditions have been near to the MTs over the historical period." The City does concur with the Napa GSP 2021 Update that, during times of drought, groundwater in the Napa Valley Subbasin can decline as it did in the 2022 Water Year (WY). The City also concurs with Agenda Item #5.12.

2 the Napa GSP 2021 Update that "[groundwater] monitoring data exhibit generally stable longterm trends, although conditions are largely dependent on seasonal precipitation input." The FEIR considers the potential impact of the existing Hunter groundwater well on the Napa Valley Subbasin as a whole. This consideration included the Stonebridge Well (SBW) field. The FEIR acknowledges that the Hunter well is an existing facility and does not represent a new demand on the Subbasin. The FEIR also acknowledges that the City does not rely exclusively on the SBW facility for its water supply. The City also sources drinking water from Bell Canyon Reservoir and City of Napa. Substantial evidence in the FEIR reflects that these sources are hydraulically independent of the Napa Valley Subbasin and reduce the City's dependance on SBW. Since the Hunter Development will source its outdoor and domestic water need from such hydraulically independent water sources, the City appropriately did not the impact of the Hunter Development on other, independent, water sources.

Comment: The City’s “continued position that the onsite well will offset approximately 17 acrefeet of demand is no longer consistent with County policy – rather, only approximately 5 acrefeet can be provided by the well under the new allocation of 0.3 acre-feet per acre…..In short, the project needs to come up with an additional 12 acre-feet of water from somewhere else. It cannot do so from the on-site well.”
Response: This comment is based on an apparent misunderstanding of County’s current policy regarding wells (referenced in footnote #3 on page 2 of the comment letter) which limits the yield on certain types of wells to 0.3 acre-feet of water per year. The existing well on the Hunter Project site, which was originally permitted in 1976, remains operable (the well was once referenced in the EIR as “inoperable” because it was not in use at the time, but it was subsequently verified in the 2021 test of the well to be operable and capable of meeting projected needs).

In addition, substantial evidence confirms that historic water production from this well was higher than the projected need for outdoor irrigation for the Hunter Project. Specifically, based on local weather conditions, and using the pre-levee configuration and use of the site, prior analysis of the Hunter Project determined that the existing well would have produced approximately 22 acre-feet of water per year:
• Vineyards at their peak were assumed to cover 15 acres of the 16.9-acre parcel.1 • Based on various studies, vineyards with the same vine spacing as existed on the Hunter site operate with a crop coefficient (kc) of about 0.512. The Oakville California Irrigation 1 This acreage estimate is conservative, since it does not include the portion of the original parcel that was used to accommodate the flood control project. The 16.9-acre parcel that remained is only the portion that is proposed for the project’s residential components. 2 Irrigation of Winegrapes in California, Larry E. Williams, Department of Viticulture & Enology, University of California-Davis, and Kearney Agricultural Center. A crop coefficient is used to adjust available reference evapotranspiration data to understand the water needs of a specific crop. Source:
https://web.archive.org/web/20111122021551/http://www.practicalwinery.com/novdec01p42.htm Agenda Item #5.12.

3 Management Information System (CIMIS) station has an average annual ETo of 47.73 inches.3
• Using these values, onsite irrigation capable of being provided by the existing well is about 22 AF (47.73 * 0.51 / 12 *11 = 22.3 AF)
Therefore, the well historically produced more water than is projected to be needed to meet outdoor irrigation needs of the Hunter Project and which does not suggest it requires modification. Because the well has an existing permit and to the City’s current knowledge does not require modification, and because no increase in well use over historic levels is proposed, the evidence before the City does not suggest that a new well permit is required by Napa County. Giving this the pumping limitations cited in the comment (which affect only new wells, or modified wells with new permits) would not apply. Further, as documented in detail in the EIR and in the proposed approval documents, the City’s Water Neutrality Ordinance applies to the Project.

Comment: “The DEIR’s analysis wrongly uses an Affordable Housing percentage of 28.73%, when the project currently provides for zero.”
Response: As noted in the EIR and the proposed conditions of approval for the Tentative Map, the proposed project will be required to comply with the City’s inclusionary housing regulations, and to obtain an approved Affordable Housing Agreement before the map can be recorded. The project will, in face, include affordable housing as required by the St Helena Municipal Code.

Comment: “But then the DEIR, without apparently relying on any traffic experts, essentially concludes that though the City has not adopted VMT significance thresholds, that the project is indeed significant in its impact, but that there is no mitigation available. This suggestion is directly contrary to the general plan itself, which provides for improvements to the City’s street network that would lessen the length of the project’s trips – particularly connection of Adams to Silverado Trail.”
Response: The EIR seeks to identify feasible mitigation measures. The connection of Adams Street to Silverado Trail via a new bridge over the Napa River, a multi-million-dollar project which is not mandated by the General Plan, is beyond the ability of the proposed project to construct. This improvement, and similar improvements apparently cited in this comment, were not considered to be feasible mitigation, contributing to the conclusion that this project’s impacts to VMT are significant and unavoidable.
3 ETo represents the term "evapotranspiration." This value reflects the use of a particular reference crop (generally grass) in place at the CIMIS station. Multiplying the Kc by the ETo provides scientifically based estimate of the demand for a particular crop. This method is used extensively for determining the irrigation needs for landscaping and for agricultural commodities. The ETo rate shown was accurate as of 2013 and is used to estimate historic water use. Current CIMIS Eto rate for the area which includes the Oakville station is slightly higher—49.4—which would result in an estimated 23 AF of annual water use for 15 acres of irrigated vineyards (49.4 * 0.51 / 12 * 11 = 23.09) Agenda Item #5.12.

4 Comment: “The Traffic Study (DEIR Exhibit K) … repeatedly failed to use reasonable assumptions for the project, substantially undercounts the expected traffic increase [from the proposed project]”
Response: The trip generation rates were calculated using the Institute of Transportation Engineers, Trip Generation Manual, 10th Edition (2017). This manual is the industry standard for estimating vehicle trips for proposed development projects. The project’s trip generation estimates and distribution patterns were reviewed and approved by the City’s Traffic Engineer for use in the traffic impact analysis (TIA).

Comment: “For example, the 11 Accessory Dwelling Units, which are touted as providing additional workforce housing, are allocated only 4 AM Peak Hour outbound trips. Moreover, reasonable assumptions would suggest the multi-family units to lead to more trips for the residents of those units given the nature of the local workforce.” Response: As separate trip generation rates for Accessory Dwelling Units (ADUs) are currently not available, the multi-family trip generation rate is appropriate, given the size and purpose of the unit. The total ADU trip generation is 81 units, with an estimated 5 of those trips (1 inbound and 4 outbound) occurring within the peak one hour period between 7:00 a.m. and 9:00 a.m.

The peak hour assumption is consistent with ITE and City standards, and also reflects the variety of work schedules one might expect (particularly for shift workers).

Comment: “For example, the traffic report apparently incredibly claims that the 87 new units will result in only two (2) people driving their children to school by crossing Main at Adams – the main access to the project. And only one (1) will go pick their child up.” Response: We assume this comment refers to students attending St. Helena Elementary School on Adams Street. Per the EIR (page 3.12-15), it is anticipated that 7 students from the proposed development would attend this school, based on the St. Helena Unified School District’s student generation formula. It is noted that the peak hour in the TIA is a 60 minute sample between 7:00 and 9:00 a.m. and 3:00 to 6:00 p.m. The peak hour tends to fall within the middle of these ranges. As school begins at 8:35 a.m., it is reasonable that the school traffic may be offset from the commute peak. The same is true of the p.m. peak , where dismissal is at 3:10, before most people leave from work. Additionally, given the congestion around the school during drop-off and pick-up periods, parents may choose other routes to/from the project site, such as Hunt Avenue and Pope Street, to get to/from the school.

Comment: “.. the Traffic Report does still include several required mitigation measures and improvements that are recommended to address traffic issues. (Id. at 2038-39.) Yet it appears none have been incorporated into the project.”
Response: The TIA shows that two of the study intersections would fall below the City’s acceptable level of service standards in the year 2040 (estimated general plan buildout), including Silverado Trail/Pope Street and Main Street/Pope Street-Mitchell Drive. It should be Agenda Item #5.12.

5 noted that Project traffic would contribute to delays at these intersections. However, under the legal requirements for mitigation, the applicant cannot be required to construct these improvements individually. Rather, the project is subject to development fees (which are also referenced in the conditions of approval) which would fund future traffic improvements.

Comment: “… connection of Adams Street to Silverado Trail would substantially lessen project vehicle miles traveled (VMT), allowing project traffic direct access to a major thoroughfare without the additional distance traveled through City streets.” Response: A connection of Adams Street to Silverado Trail would, in theory, reduce congestion at both Main Street/People Street-Mitchell Drive and Silverado Trail/People Street. However, this connection is outside of the City’s jurisdiction (County and Caltrans). Permitting requirements and environmental mitigation would be substantial. This connection would also likely result in travel inducement, thereby exacerbating the significant vehicle miles traveled impact identified in the FEIR. For these reasons, this improvement is not a condition of the proposed project.

Comment: “ … there is no other acknowledgment that the property currently serves as critical firebreak for the rest of the City. The Board of Forestry’s recently-adopted 2021 State Fire Regulations emphasize the need to preserve and implement firebreaks in projects. Removing this critical firebreak is a wildfire impact that is not even acknowledged, let alone analyzed and mitigated.”
Response: The project site does not meet the definition of a “firebreak,” which is an obstacle to the spread of fire, such as a strip of open space in a forest. The Hunter Property in its current state does provide an obstacle to fire-spread; in fact just the opposite. The area is under constant scrutiny during weed abatement and fire seasons to reduce the potential for the spread of fire across the site.

The adjacent levee road however, could be described as a firebreak as it comes between two areas containing fire fuels (flood project and hunter property). And to my knowledge, the levee road will remain in place after the project is complete.

Residential homes constructed in accordance with California Fire Code requirements (fire resistant building materials, fire sprinkler systems, etc.) do not constitute a significant fire threat. Residential fires are much easier to contain than grass and vegetation wildfires.

Comment: “… [fire] risk is substantially worsened by the failure to address the needed road improvements. Without connection of Adams Street to Silverado Trail and the mitigation of the Silverado Trail/Pope Street intersection conditions, the project presents substantial threats to public safety.”
Response: Please see Master Response #1 in the Final EIR, which includes the following statement:

Agenda Item #5.12.

6 “Based on the results of the evacuation drill, the St. Helena Police Department has concluded that any additional traffic from the Proposed Project would not significantly impact the ability of Vineyard Valley residents to safely evacuate the development in the event of an emergency. The Police Department also concluded that the proposed extension of Starr Avenue to Adams Street will help facilitate future evacuations by providing additional roadway capacity and additional routing options for emergency traffic (J.Tharp September 2021)1. If, for some reason, the levee maintenance road is closed residents of Vineyard Valley would exit using the access onto Pope Street.”
Comment: “The project lacks safe emergency access and egress and would worsen existing emergency evacuation times for residents.”
Response: See the above response and Master Response #1 in the Final EIR. From an emergency response perspective, the connection of Starr and Adams would provide a much quicker route for the Fire Department to respond to the existing properties in that area as well as the new development.

Agenda Item #5.12.

Attachment 29
Response to Letter from the law firm of DP&F, dated 2-6-2023, titled, “Hunter Subdivision Project Tentative Map No. 2022-001, File #PL10-040”
Comment: The letter argues that the tentative map must be denied because Municipal Code Section 16.04.120 states that applicants for tentative maps shall concurrently submit applications for all other discretionary approvals. In this case, the City is considering only the tentative subdivision map, and the applicant will need to apply for and secure additional discretionary approvals prior to the actual construction of the project.

Response: This comment is addressed in the response to the first DP&F letter. See Attachment

18. As previously stated, Staff disagrees that this section constitutes grounds for denying the tentative subdivision map. Section 16.04.120 sets forth a requirement that applies at the time of submission of the tentative map application, and at the most dictates that the Planning Director require concurrent submission of application for other discretionary approvals before the tentative map application was deemed complete. As staff has noted, the application for this map was accepted as complete on March 25, 2011. To the extent that City were to require compliance with this section, it should have done so at the time the tentative map was deemed complete rather than using it as ground for denial after fully processing the application. This is especially true given the restrictions that the State Legislature has placed on local agencies’ discretion to deny housing development projects. Government Code Section 65589.5(j)(2) provides a limited time for determine whether a housing development project is compliant with existing objective land use requirements. Specifically, Section 65589.5(j)(2) reads as follows:
(A) If the local agency considers a proposed housing development project to be inconsistent, not in compliance, or not in conformity with an applicable plan, program, policy, ordinance, standard, requirement, or other similar provision as specified in this subdivision, it shall provide the applicant with written documentation identifying the provision or provisions, and an explanation of the reason or reasons it considers the housing development to be inconsistent, not in compliance, or not in conformity as follows:
(i) Within 30 days of the date that the application for the housing development project is determined to be complete, if the housing development project contains 150 or fewer housing units.
. . .
(B) If the local agency fails to provide the required documentation pursuant to subparagraph (A), the housing development project shall be deemed consistent, compliant, and in conformity with the applicable plan, program, policy, ordinance, standard, requirement, or other similar provision.

There is no record that staff notified the applicant that other discretionary applications must be submitted concurrently prior to or immediately after deeming the tentative map application complete. Based on the restrictions imposed by Government Code Section 65589.5(j)(2), staff Agenda Item #5.12.

does not believe that the City can deny the application based on a failure to comply with Section 16.04.120.

Comment: The letter argues that Government Code Section 65589.5(j)(2) does not apply to this action because it is a subdivision, not a housing project.

Response: For purposes of the Housing Accountability Act, a “housing development project” means a use consisting of any of the following: (a) Residential units only; (b) mixed use developments consisting of residential and nonresidential uses with at least two-thirds of the square footage designated for residential use; (c) transitional housing or supportive housing.

Gov’t Code sec. 65589.5(h)(2). A subdivision of land for residential purposes is a “residential use” and is subject to the requirements of the Housing Accountability Act. (Honchariw v.

County of Stanislaus (2011) 200 Cal.App.4th 1066, 1074.) The proposed subdivision clearly contemplates that the property is being subdivided for residential use, and this clearly fits within the definition of a housing development project for purposes of the Housing Accountability Act.

Comment: The letter argues that Government Code Section 65589.5(j)(2) does not apply to this action because it was not in effect at the time that the application was submitted and deemed complete.

Response: The letter incorrectly states this language was added to the Housing Accountability Act in 2015 as part of AB 1516. It was in fact added to the Housing Accountability Act in 2017 as part of SB 167. SB 167 is one of many bills passed by the State Legislature in recent years to broaden the effect of the Housing Accountability Act and other State Housing Laws to restrict and limit local oversight of housing. In addition to adding the language in Section 65589.5(j)(2), SB 167 added findings to the Housing Accountability Act declaring that, among other things:
“California has a housing supply and affordability crisis of historic proportions. The consequences of failing to effectively and aggressively confront this crisis are hurting millions of Californians, robbing future generations of the change to call California home, stifling economic opportunities for workers and businesses, worsening poverty and homelessness, and undermining the state’s environmental and climate objectives.” The letter is correct that this language was not in effect at the time that the application for the Project was deemed complete. However, in the overall context of the language of the Housing Accountability Act and other statutes that presently govern consideration of housing projects throughout California, staff is not at all convinced that, if City staff did not notify the applicant that they were required to concurrently submit an application for all other discretionary approvals either (1) within 30 days of date the application was deemed complete, or (2) within 30 days of the effective date of SB 167, the City could now require the applicant to submit an application for other discretionary approvals before considering the tentative subdivision map.

Comment: The letter argues that multifamily units to be included on Lot 52 are not an allowed use in the Medium Density Residential (MR) zoning district, and therefore the updates to the Agenda Item #5.12.

tentative subdivision map to include six proposed pad elevations and to designate Lot 52 as a parcel for “Future Multi-Family Residential” do not comply with the requirements for MR zoning.

Response: The residential units to be included on Lot 52 are contemplated to be developed in a duplex or triplex configuration (See, e.g., Table 2.1 and Figure 2-4a of the Draft EIR for the Project). New attached duplex or triplex units are a conditional use in the MR zoning district (See St. Helena Municipal Code section 17.40.030(B).) Before the applicant moves forward with development of the residential units on Lot 52, it will have to obtain a conditional use permit for the contemplated duplex or triplex units. The contemplated duplex and triplex units can be configured on the building pads as included on the proposed tentative map. As discussed above, based on SB 167, the City cannot require that the conditional use permit for development of Lot 52 be submitted at this point in the process as a precondition on consideration of the tentative subdivision map. The exact configuration of the units on Lot 52, including setbacks and distribution between the proposed building pads will be addressed through the conditional use permit and design review processes for the development of Lot 52.

Agenda Item #5.12.

PO Box 5157 | Napa, CA 94581 | (707) 258-6318 | www.napabike.org February 7, 2023
City of St. Helena Planning Commission
Vintage Hall Board Room – Second Floor
465 Main Street
St. Helena, CA 94574
Public Comment Re: Item 5.1: Public Hearing - Hunter Subdivision Project Dear Chair Ponte and Commissioners,
The Napa County Bicycle Coalition (NCBC) represents over 2,000 members and supporters throughout Napa County in advocating to make riding a bicycle in our communities safe, convenient, and accessible for riders of all ages and abilities. Since 2008, the Napa County Bicycle Coalition has worked with local organizations, businesses, elected officials, and the public to align our transportation infrastructure with the needs of cyclists and other active transportation users.

We were disappointed to learn that our suggestions, submitted via our November 2022 public comment to the Planning Commission, have not been integrated into this project.

We requested a Class I shared-use path along the north side of Adams Street to Library Lane, widened sidewalks on Starr Avenue to at least five feet, and traffic-calming measures on both Adams Street and Starr Avenue.

The response to our comment (Attachment 20 in the staff report) refers to the Circulation chapter and Figure 5.5 of the St. Helena General Plan, which the City regards as its official policy on future bicycle facilities. This chapter states: “The City envisions that each of the ‘Future Roadway Extensions’, as identified in Figure 5.3, would at a minimum consist of a bicycle/pedestrian path equivalent to a ‘Class I Bike Path’” (page 5-20). The extensions of Adams Street and Starr Avenue, included in the Hunter Subdivision project, are in these “Future Roadway Extensions” (Figure 5.3).

Furthermore, Figure 5.5 depicts both extensions of Adams and Starr as proposed alignments for the Vine Trail, a Class I path. While the alignment for the Vine Trail has changed, Figure 5.5 includes Class I paths in its purview and does not limit Adams and Starr to Class II bike lanes. While we agree that Class II bike lanes would be sensible with traffic-calming on Starr Avenue for continuity with existing facilities, we maintain that a Class I path should be included on Adams Street, for the reasons outlined in our November comment.

Agenda Item #5.12.

PO Box 5157 | Napa, CA 94581 | (707) 258-6318 | www.napabike.org The response to our comment did not address our call for traffic-calming measures on Adams and Starr as part of this project. We reiterate that speeding is already a significant traffic safety concern in St. Helena, particularly on roads designed comparably to Adams and Starr. Residents report that Starr Avenue is used as a cutthrough street to avoid SR 29 and Silverado Trail traffic and experiences high volumes of speeding motorists. More broadly in St. Helena, a group of citizens concerned with speeding on existing City streets has formed and began meeting with the City Police Department to identify actions to reduce speeding. The City approved a contract with GHD to address traffic safety on Madrona and Spring after citizen reports of unsafe motorist behaviors on those streets, namely speeding. Through our Safe Routes to School safety evaluation efforts and several separate conversations with community members, parents in St. Helena have expressed their fear of allowing their children to walk and bike to school due to motorist behaviors such as speeding. The City has the opportunity to greatly reduce the risk of speeding motorists on the future extensions of Starr and Adams from the beginning by requesting that the developer include trafficcalming on these streets.

We reiterate our asks from our November comment letter for a Class I shared-use path on Adams Street, widened sidewalks on Starr Avenue, and traffic-calming measures on both Adams and Starr in order to address the VMT impact of this project and better align this development with City goals around climate, public health and safety, and active transportation.

Should you have any questions about any of the above recommendations, please contact Carlotta Sainato at (707) 258-6317 or [email protected]. Thank you for your time and consideration.

Sincerely,
Carlotta Sainato
Program Manager
Napa County Bicycle Coalition
Agenda Item #5.12.

1 Attachment 31
Response to Letter from the Napa County Bicycle Coaltion, dated 2-7-23, titled, “Public Comment Re: Item 5.1: Public Hearing - Hunter Subdivision Project” Comment: “The response to our comment (Attachment 20 in the staff report) refers to the Circulation chapter and Figure 5.5 of the St. Helena General Plan, which the City regards as its official policy on future bicycle facilities. This chapter states: “The City envisions that each of the ‘Future Roadway Extensions’, as identified in Figure 5.3, would at a minimum consist of a bicycle/pedestrian path equivalent to a ‘Class I Bike Path’” (page 5-20). The extensions of Adams Street and Starr Avenue, included in the Hunter Subdivision project, are in these “Future Roadway Extensions” (Figure 5.3).

Response: The commenter is correct that the extensions of Adams Street and Starr Avenue are shown as Future Roadway Extensions. However, the General Plan provides flexibility in the design of these roadways. The proposed tentative map, as conditioned, would be required to provide on-street (Class II) bicycle lanes and pedestrian sidewalks on both roadways, continuing the existing Class II bike lane on Starr Avenue south of the project site and consistent with the existing paved roadway and sidewalks on Adams Street west of the project site.

Comment: “Furthermore, Figure 5.5 depicts both extensions of Adams and Starr as proposed alignments for the Vine Trail, a Class I path. While the alignment for the Vine Trail has changed, Figure 5.5 includes Class I paths in its purview and does not limit Adams and Starr to Class II bike lanes. While we agree that Class II bike lanes would be sensible with traffic-calming on Starr Avenue for continuity with existing facilities, we maintain that a Class I path should be included on Adams Street, for the reasons outlined in our November comment.” Response: See the response above. The proposed tentative map, as conditioned, would provide on-street, Class II bicycle facilities consistent with existing facilities in these roadways.

Comment: “The response to our comment did not address our call for traffic-calming measures on Adams and Starr as part of this project. We reiterate that speeding is already a significant traffic safety concern in St. Helena, particularly on roads designed comparably to Adams and Starr. Residents report that Starr Avenue is used as a cut-through street to avoid SR 29 and Silverado Trail traffic and experiences high volumes of speeding motorists. More broadly in St.

Helena, a group of citizens concerned with speeding on existing City streets has formed and began meeting with the City Police Department to identify actions to reduce speeding. The City approved a contract with GHD to address traffic safety on Madrona and Spring after citizen reports of unsafe motorist behaviors on those streets, namely speeding. Through our Safe Routes to School safety evaluation efforts and several separate conversations with community members, parents in St. Helena have expressed their fear of allowing their children to walk and bike to school due to motorist behaviors such as speeding. The City has the opportunity to Agenda Item #5.12.

2 greatly reduce the risk of speeding motorists on the future extensions of Starr and Adams from the beginning by requesting that the developer include traffic-calming on these streets.” Response: A number of concerns were expressed during the Planning Commission hearing, specifically related to traffic safety/calming issues, e.g. the intersection of Starr/Adams/Street A. The Planning Commission directed staff to work with the design engineer to develop safety details. While details of the signing/striping were neither required nor incorporated into the Tentative Map, staff will collaborate with the engineer of record to incorporate calming measures (e.g. speed humps/tables) into the design to thwart the development of poor habits (i.e. speeding) on the new streets serving as “by-pass” to other peak hour congested streets.

Comment: “We reiterate our asks from our November comment letter for a Class I shared-use path on Adams Street, widened sidewalks on Starr Avenue, and traffic-calming measures on both Adams and Starr in order to address the VMT impact of this project and better align this development with City goals around climate, public health and safety, and active transportation.”
Response: Please see the responses above. The Public Works and Community Development departments have reviewed the project and developed comments and conditions of approval which include providing on-street (Class II) bike lanes and pedestrian sidewalks.

Agenda Item #5.12.

Ethan J. Walsh
(916) 551-2825
[email protected]
83578.00103\41183407.1 500 Capitol Mall, Suite 1700, Sacramento, CA 95814 Phone: (916) 325-4000 | Fax: (916) 325-4010
BBKLAW.COM
Memorandum

VIA E-MAIL
To: Mayor and City Council, City of St. Helena File No.: 83578.00103 From: Ethan Walsh, City Attorney
Date: April 16, 2023
Re: Hunter Subdivision Project; Discussion of Flood Liability Issues

QUESTIONS PRESENTED
The City is scheduled to consider the Hunter Tentative Subdivision Map (the “Project”) on May 1, 2023. The City has received public comments in connection with the proposed Project expressing concern that the City would be liable for damages in the event of flooding as the result of a failure or overtopping of the City owned levee adjacent to the proposed Project. In a recent letter directed to Mayor Dohring and me, which I have enclosed with this email, Arlene Corsetti indicated she believes the City would be strictly liable1 in the event of a failure or overtopping of levee constructed as part of the St. Helena Flood Control Project.

This memo clarifies the legal standard that applies to cases involving the failure of publicly owned flood control facilities, like the City’s levee.

ANALYSIS
I. Strict Liability Does Not Apply to Flood Control Projects The City would not be strictly liable if the City’s levee failed or was overtopped during a flood event. The California Supreme Court has held that “the fact that a dam bursts or a levee fails is not sufficient, standing alone, to impose liability.” (Belair v. Riverside County Flood Control District (1988) 47 Cal.3d 550, 565.) To establish liability, a plaintiff must prove that (1) the flood control improvement failed to function as intended; (2) this failure constituted a proximate cause of the claimed damages; (3) the public agency acted unreasonably in designing, 1 Strict liability is a legal standard that means, in this context, that the City could be held liable for damages and injuries resulting from flooding, without any showing by the plaintiffs that the City was at fault or that the City’s negligence caused the damages or injuries.

Agenda Item #5.12.

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constructing, or maintaining the flood control improvement; and (4) this unreasonable conduct constituted a proximate cause of the claimed damages. (Id. at pp. 559-567.) In cases where property owners suffer damages due to flooding resulting from the failure of flood control of other government owned facilities, those that suffer damages will generally seek relief based on a claim of inverse condemnation. “When there is incidental damage to private property caused by governmental action, but the governmental entity has not reimbursed the owner, a suit in ‘inverse condemnation’ may be brought to recover monetary damages for any ‘special injury,’ i.e., one not shared in common by the general public.” (Locklin v. City of Lafayette (1994) 7 Cal.4th 327, 362.)
The general rule in inverse condemnation cases is that “any physical injury to real property proximately caused by [a public] improvement as deliberately designed and constructed is compensable under [Article 1, § 19 of the California Constitution], whether foreseeable or not.” (Belair v. Riverside County Flood Control District (1988) 47 Cal.3d 550, 558, quoting Albers v.

County of Los Angeles (1965) 62 Cal.2d 250, 263-264.) While the general rule renders a public agency strictly liable for inverse condemnation—regardless of whether the injury was foreseeable and without regard to the presence or absence of fault, the California Supreme Court has set forth a more lenient rule in the context of flood control improvements. (See Pacific Bell v. City of San Diego (2000) 81 Cal. App. 4th 596, 610-615.)
In particular, the California Supreme Court has recognized that “a public agency that undertakes to construct or operate a flood control project clearly must not be made the absolute insurer of those lands provided protection.” (Belair, supra, 47 Cal.3d at p. 565.) Accordingly, a public agency is not strictly liable for damages resulting from the failure of a flood control facility. (Ibid.; see also Locklin, supra, 7 Cal.4th at pp. 367-368.) II. Courts Employ a Four-Part Test to Determine Inverse Condemnation Liability Based on Flooding Related Damages
A plaintiff seeking compensation against a public entity for flooding-related damages caused by failure of a flood control improvement must generally establish the following four elements in an inverse condemnation action:
(1) The flood control improvement failed to function as intended; Ø Example: Tri-Chem, Inc. v. Los Angeles County Flood Control Dist. (1976) 60 Cal.App.3d 306, 311 [no inverse condemnation liability where the drainage system had a design capacity of only 550 to 700 cfs, whereas runoff during the storm that resulted in the flood reached approximately 1,096 cfs; under these facts, there was no evidence that the project failed to function as intended; rather the flooding occurred in spite of the flood control improvement, not because of the improvement]; see also Belair, supra, 47 Cal.3d at pp. 561-562.) (2) The failure of the flood control improvement to function as intended constituted a proximate cause of the claimed damages
Agenda Item #5.12.

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Ø Note: Where forces not induced by the public flood control improvement (such as a rainstorm) contribute to the injury, proximate cause is established where the public improvement constitutes a “substantial concurring cause” of the injury—i.e., where the injury occurred in substantial part because the improvement failed to function as it was intended. “The public improvement would cease to be a substantial contributing factor, however, where it could be shown that the damage would have occurred even if the project had operated perfectly, i.e., where the storm exceeded the project’s design capacity.” (Belair, supra, 47 Cal.3d at pp. 559-560.) Ø Example: Shaeffer v. State of California (1972) 22 Cal.App.3d 1017, 1020 [no liability where the net result of the flood control improvement “was a lesser amount of flooding than that which would have occurred in the absence of the improvement”], disapproved on other grounds in County of San Diego v. Miller (1975) 13 Cal.3d 684; see also Belair, supra, 47 Cal.3d at pp. 561-562 [explaining how courts may find proximate cause absent where there is no evidence that the project failed to function as intended].) (3) There was some unreasonable conduct on the part of the defendant public entity in designing, constructing, or maintaining the flood control improvement.

Ø Example: “[W]hen a public flood control improvement fails to function as intended, and properties historically subject to flooding are damaged as a proximate result thereof, plaintiffs’ recovery in inverse condemnation requires proof that the failure was attributable to some unreasonable conduct on the part of the defendant public entities.” (Belair, supra, 47 Cal.3d at p. 567; see also Bunch v. Coachella Valley Water District (1997) 15 Cal.4th 432, 436 [“When a water project fails … causing flood damage, the issue is whether the system’s design, construction, and maintenance were reasonable.”].)
(4) The public agency’s unreasonable design, construction, or maintenance constituted a substantial cause of the damages.

Ø Example: Public agency’s inadequate maintenance of channel constituted a substantial cause of damages resulting from levee’s failure. (Arreola v.

County of Monterey (2002) 99 Cal.App.4th 722, 742-743.) III. Courts Focus on the Reasonableness of the City’s Conduct The California Supreme Court has repeatedly affirmed the rule that a public agency is not strictly liable for damages resulting from failure of a flood control improvement, but that the agency may be liable if the agency’s “unreasonable conduct” constituted a substantial cause of the damages. Three Supreme Court cases—Belair v. Riverside County Flood Control District, Locklin v. City of Lafayette, and Bunch v. Coachella Valley Water District—shed some light on what qualifies as reasonable conduct.

Agenda Item #5.12.

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In Belair v. Riverside County Flood Control District, seventeen property owners filed suit against the Riverside County Flood Control District (“RCFCD”) after a flood control levee on the bank of the San Jacinto River gave way, freeing the river to flood parts of the City of San Jacinto. (Belair, supra, 47 Cal.3d at p. 554.) The California Supreme Court held that these plaintiffs established the first two elements outlined in the previous section above—i.e., (1) the levee failed to function as intended because it had a design capacity of 86,000 cfs, but the maximum flow in the channel at the time of the breach was approximately 25,000 cfs, and (2) the levee’s failure to function as intended proximately caused the claimed damages, as the breach was not caused by volume, speeds, or heights of water beyond the design capacity of the levee. (Belair, supra, 47 Cal.3d at p. 560.) The plaintiffs thus established that “the levee’s failure to function as intended constituted a substantial concurring – or proximate – cause of the damages.” (Ibid.) Though the plaintiffs established the above two elements, the California Supreme Court nevertheless held that RCFCD was not liable for inverse condemnation where the plaintiffs did not establish the third element outlined above—i.e., that there was some unreasonable conduct on the part of the public agency. In particular, Belair noted that the plaintiffs failed to produce any evidence that RCFCD had acted unreasonably in the design, construction, operation, or maintenance of the levee, or that their damages were caused by any act or failure to act on the part of RCFCD. (Belair, supra, 47 Cal.3d at p. 556.) In reaching this holding, the Supreme Court rejected the plaintiffs’ assertion that inverse condemnation liability required proof only of the fact that the levee had failed to function within its design capacity, and that this failure caused their damages. (Ibid.) The California Supreme Court explained:

Contrary to plaintiffs’ position, the fact that a dam bursts or a levee fails is not sufficient, standing alone, to impose liability. However, where the public agency’s design, construction or maintenance of a flood control project is shown to have posed an unreasonable risk of harm to the plaintiffs, and such unreasonable design, construction or maintenance constituted a substantial cause of the damages, plaintiffs may recover ….
(Belair, supra, 47 Cal.3d at p. 565.)
“When a public agency erects improvements to protect against floodwaters, it must, at a minimum, act reasonably.” (Belair, supra, 47 Cal.3d at p. 567.) There is no bright-line rule, however, governing what constitutes “reasonableness.” “The reasonableness of the public agency’s conduct must be determined on the facts of each individual case, taking into consideration the public benefit and the private damages in each instance.” (Belair, supra, 47 Cal.3d at p. 566.) The Supreme Court did explain that reasonableness in this context “is not entirely a matter of negligence, but represents a balancing of public need against the gravity of private harm.” (Id. at pp. 565-566.)
The California Supreme Court subsequently elaborated in Locklin v. City of Lafayette that this balancing requires consideration of the following six factors:
“(1) The overall public purposes being served by the improvement project; Agenda Item #5.12.

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(2) the degree to which the plaintiff’s loss is offset by reciprocal benefits; (3) the availability to the public entity of feasible alternatives with lower risks; (4) the severity of the plaintiff’s damage in relation to risk-bearing capabilities; (5) the extent to which damage of the kind the plaintiff sustained is generally considered as a normal risk of land ownership; and
(6) the degree to which similar damage is distributed at large over other beneficiaries of the project or is peculiar only to the plaintiff.”
(Locklin, supra, 7 Cal.4th at p. 368-369; see also Bunch, supra, 15 Cal.4th at p. 451.) In Bunch v. Coachella Valley Water District, the Supreme Court applied this six-factor test to determine the reasonableness of the Coachella Valley Water District’s flood control-related actions. In concluding the agency acted reasonably, the Supreme Court explained:

In sum, the record shows the trial court's conclusion the District acted reasonably and promptly in repairing post-Kathleen damage and in taking steps to develop a more permanent flood control plan was sound. Expert testimony indicated the detailed steps the District undertook to secure expert technical and engineering information on repairing its facilities and in managing those repairs represented sound engineering practice. Expert testimony was in conflict as to the engineering feasibility of the short-term solution of repairing the breach in the West Magnesia Springs Canyon stormwater facilities to restore the preexisting level of flood protection, allowing the District to devote its remaining resources to developing a comprehensive flood control plan. But as the Court of Appeal observed, the trial court reasonably relied on the District's expert testimony that any attempt to “quick fix” the problem by realigning the diversion levee and lining it with stronger material would have failed during Tropical Storm Dolores. Thus, the trial court based its finding of reasonableness on a careful analysis of several factors, including the project's purpose to divert the potentially dangerous natural flow in order to prevent flood runoff from fanning out over the Magnesia Cove alluvial plain, the public need for the project, the risk of private harm, the alternatives available to reduce the risk of harm, and the District's overall fiscal and flood control responsibilities.
(Bunch, supra, 15 Cal.4th at pp. 453-454.)
Agenda Item #5.12.

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CONCLUSION
The cases regarding liability stemming from flood control projects make clear that the City would not be liable for damages simply because a flood event occurred, or even simply based on the failure of the levee, were that to occur at some point in the future. Any risk of liability would be based on and evaluation of the specific facts in event of future flooding, based on the factors described above. To limit its exposure to liability, and more importantly, to protect the community from future flooding, the City should conduct regular maintenance and inspections of the levee, and conduct repairs of the levee when deemed necessary or appropriate. This continuing inspection, maintenance and repair of the levee will help to demonstrate reasonable behavior on the part of the City. Further, the levee was designed and constructed in accordance with US Army Corps of Engineers standards to a 200 year flood standard. There is no indication that the design or the construction of the levee was unreasonable. The City should continue to be diligent in its inspection and maintenance of the levee, as it should with all public infrastructure. However, the City is not subject to strict liability based on its ownership of the levee, and any future liability will be based on whether the City is reasonable, based on the multifactor test described in this memo.
cc: Anil Comelo, City Manager
Maya DeRosa, Community Development Director
Agenda Item #5.12.