45 alternative” rather than the “no-build alternative” or “current environmental conditions.”304 Because the city lacks authority to deny the smaller project, it would be uninformative to conduct an environmental review using a no-project baseline.
Like NEPA and New York’s SEQRA, CEQA exempts ministerial permits from environmental review.305 Discretion is always the trigger.306 However, the Court of Appeal has held in several cases that if a city has any discretion to shape a project, the city must analyze and mitigate the impact of project “as a whole” relative to a current-environmental-conditions baseline.307 Projects whose permitting is “not wholly ministerial and not entirely discretionary but a compound of both” have been treated as entirely discretionary for CEQA purposes.308 In one case, an EIR was produced using a zoning-complaint-project baseline, similar to New York practice, and the California Court of Appeal rejected it out of hand. 309
This line of cases is rooted in CEQA’s traditional premises: that new construction is presumptively bad for the environment,310 and that CEQA should be construed broadly to give “the fullest possible protection” to the environment.311 The working assumption is that requiring more environmental review and mitigation is the greener way. But as we’ve seen, the HAA 304 Id. [303]; NYC MAYOR’S OFFICE OF ENV. COORDINATION, CEQR TECHNICAL MANUAL § 2.7 (Nov. 2020), https://www1.nyc.gov/assets/oec/technical-manual/2020_ceqr_technical_manual.pdf (“Sometimes, private applicants state an intention to develop their property in the future, with or without approval of a proposed project....
If the lead agency determines it is reasonable to assume that the applicant’s stated No-Action scenario would occur in the future without the proposed project, the scenario would constitute the No-Action scenario for analysis purposes.”).
305 CAL. PUB. RES. CODE § 21080(b)(1),
306 CAL. PUB. RES. CODE § 21080(a),
307 People v. Dep’t of Hous. & Cmty. Dev., 45 Cal. App. 3d 185 (1975); Friends of Westwood, Inc. v. City of Los Angeles, 191 Cal. App. 3d 259 (1987); Friends of Juana Briones House v. City of Palo Alto, 190 Cal. App. 4th 286 (2010). See also KOSTKA & ZISCHKE, supra note 21, § 4.27. But see McCorkle Eastside Neighborhood Group v.
City of St. Helena, 31 Cal. App. 5th 80 (2018) (holding that limited discretion conferred by city’s design review ordinance does not trigger CEQA review, because the type of aesthetic changes authorized by the code could not mitigate environmental impacts within the meaning of CEQA). Note also that the CEQA Guidelines define “effect” and “impact” (synonymously) to mean “effects which are caused by the project.” 14 CAL. CODE REGS § 15358.
Future environmental conditions not caused by the discretionary project are not impacts within the meaning of CEQA. It follows that a CEQA analysis ought to reflect some choice of a reference alternative (as opposed to the “current environmental conditions” baseline), for, as we have seen, it is nonsensical to speak of the “effect” of a course of action without comparing outcomes under that scenario to outcomes under an alternative course of action. 308 People v. Dep’t of Hous. & Cmty. Dev., 45 Cal. App. 3d at 193. 309 Woodward Park Homeowners Assn., Inc. v. City of Fresno, 150 Cal. App. 4th 683, 707-09 (2007) (rejecting EIR whose “bottom-line conclusions ... emphasized the marginally increased impacts of the proposed project over buildout under existing zoning”). The court faulted the EIR for not “present[ing] a clear or a complete description of the project's impacts compared with the effects of leaving the land in its existing state.” Id. at 708. Left unaddressed was the question of whether the city had legal authority to choose a project alternative that would leave the land in that state. See also City of Carmel–by–the–Sea v. Board of Supervisors, 183 Cal. App. 3d 229, 246 (1986) (holding that county must consider impacts of rezoning on existing physical environment; comparison of project possible under old zoning with project possible under proposed new zoning “bears no relation to real conditions on the ground”). 310 See, e.g., Friends of Westwood, 191 Cal. App. 3d at 266-67 (“As applied to private projects, the purpose of CEQA is to minimize the adverse effects of new construction on the environment. … Thus the touchstone is whether the approval process involved allows the government to shape the project in any way which could respond to any of the concerns which might be identified in an environmental impact report.”) (emphasis added). 311 Id. [310] at 267 (“doubt whether a project is ministerial or discretionary should be resolved in favor of the latter characterization”).
Electronic copy available at: https://ssrn.com/abstract=3980396 Agenda Item #5.1.
46 inverts this premise when it comes to housing. The HAA declares new construction of zoningcompliant housing projects to be presumptively good for the environment,312 and it aims to “meaningfully and effectively curb[] the capability of local governments to deny, reduce the density for, or render infeasible housing development projects.”313 A reading of CEQA that leaves cities with open-ended discretion to require time-consuming studies and costly mitigation of so-called “impacts” that are not even caused by the city’s exercise of discretion would do pointless violence to the policy of the HAA.
In the near term, however, any effort to use the HAA to put a limiting gloss on misbegotten CEQA-baseline precedents would be complicated by the fact that those precedents have been incorporated into the official CEQA Guidelines.314 The Guidelines stipulate that “the physical environmental conditions in the vicinity of the project, as they exist at the time the notice of preparation [of the EIR] is published . . . will normally constitute the baseline physical conditions by which a lead agency determines whether an impact is significant.”315 This “existing conditions baseline” “shall not include hypothetical conditions, such as those that might be allowed, but have never actually occurred, under existing permits or plans.”316 The only exception that the Guidelines presently recognize is that an agency may use a “projected future conditions . . . baseline . . . if it demonstrates . . . that use of existing conditions would be either misleading or without informative value to decision-makers and the public.”317 This exception codifies a practice that developed around very long-term projects, such as railways.318 Neither the Guidelines nor any published case approves the use of a “futureconditions baseline” where the future in question is a build-out of the project site under an alternative development scenario. Then again, neither the Guidelines nor any published case has considered the implications of the HAA for CEQA baselines or causation.
Though it wasn’t written for the HAA problem, the Guidelines’ narrow allowance for “future conditions” baselines recognizes that circumstances may arise where the conventional baseline is inappropriate. And the crux of our argument is that it is misleading and uninformative—and a waste of resources, and a serious threat to the environmental and housing policies of the HAA— to require developers to engage in a multi-year analysis of putative environmental “effects” that are the byproduct of a nondiscretionary statutory mandate, not the discretionary choices of the local permitting authority itself.
We have found only one case in which a court considered the relationship between the HAA and CEQA. Sequoyah Hills Homeowners Assn. v. City of Oakland319 concerned a housing development on vacant land in the Oakland Hills. The zoning of the site allowed up to eightyeight single-family homes, but the developer “‘pre-mitigated’ by proposing to build only 46 312 CAL. GOV’T CODE § 65589.5(a)(1)(C) & (a)(2)(A).
313 CAL. GOV’T CODE § 65589.5(a)(2)(K).
314 14 CAL. CODE REGS. § 15369 & 15125(a) (citing cases). 315 14 CAL. CODE REGS. § 15125(a).
316 14 CAL. CODE REGS. § 15125(a)(3).
317 14 CAL. CODE REGS. § 15125(a)(2).
318 See, e.g., Neighbors for Smart Rail v. Exposition Metro Line Construction Auth., 57 Cal. 4th 439 (2013). 319 23 Cal. App. 4th 704 (1993).
Electronic copy available at: https://ssrn.com/abstract=3980396 Agenda Item #5.1.
47 homes.”320 The city ordered an EIR using a current-conditions baseline and evaluated several alternatives, including one with only thirty-six homes.321 Neighboring homeowners sued, arguing that the EIR was insufficient because it failed to analyze additional lower-density alternatives as a way of mitigating the visual impact of the project.322 The Court of Appeal held that the city did not abuse its discretion.323 CEQA only requires consideration of “feasible” alternatives,324 the court emphasized, and the reduced-density alternatives urged by the neighbors were foreclosed by the HAA and therefore infeasible as a matter of law.325 What the court did not point out (perhaps because no one challenged the city’s use of a current conditions baseline) is that an EIR focused on the visual impacts of the Sequoyah Hills project was a huge waste of time and money. No one disputed that the project “would stand out because of its relatively higher density and its location on a prominent hillside overlooking the existing residential development.”326 But the city didn’t have discretion to make the developer choose an alternative with fewer homes, so the impact of the project should not have been characterized as “significant” unless it was shown that a significantly less obtrusive project of the same density could have been built on the site.
327
But the recent decision in Save the Hill Group v. City of Livermore328 could point the other way.
In the EIR for a development of forty-four residences near a wetland, the city noted, in its discussion of the no-project alternative, that that the area was already zoned residential so it was “not necessarily feasible to assume the site would remain undeveloped in the long term.”329 The court faulted the EIR for not addressing the feasibility of downzoning the site or buying and preserving it with a conservation fund, something the city had recently done with another nearby property.330 Save the Hill might be read broadly to require environmental impacts to be evaluated relative to a “current conditions” baseline for every project whose site could, in theory, be purchased by the city and preserved in its current form. The preservation alternative is in some sense “legally available” if the developer would be willing to sell the parcel at a price that the city could pay.331
Save the Hill did not, however, consider the HAA, Sequoyah Hills, or CEQA’s core distinction between ministerial permits (exempt from environmental review) and discretionary permits 320 Id. [319] at 709.
321 Id. [319]at 710.
322 Id. [319] at 715.
323 Id. [319] at 714-16.
324 Id. [319] at 715-16.
325 Id. [319] at 715-16.
326 Id. [319] at 711.
327 And even that’s a stretch, as nothing in the Sequoyah Hills opinion suggests that Oakland had open-space-visualimpact guidelines, from which a least-intrusive project design (i.e., the green-reference benchmark) might be adduced. Absent such guidelines, the CEQA review should have used a project-as-proposed benchmark. 328 76 Cal. App. 5th 1092 (2022), review denied (July 13, 2022). 329 Id. at 1109.
330 Id. at 1110-12.
331 Indeed, if a state or local ordinance authorizes the city to acquire the site by eminent domain, the preservation alternative would be legally available even if the developer is not willing to sell the parcel.
Electronic copy available at: https://ssrn.com/abstract=3980396 Agenda Item #5.1.
48 (subject to environmental review).332 Save the Hill vitiates CEQA’s ministerial/discretionary distinction because a city with available discretionary funds can always, in theory, purchase any given site on which a project subject to ministerial review has been proposed, thereby transmuting the ministerial project into a discretionary project. Contra Save the Hill, a city’s discretion in the permitting context must mean regulatory discretion, not enterprise discretion, i.e., the discretion the city could exercise if it were to acquire the site as a market participant.333 At a minimum, courts should limit Save the Hill to the circumstances implied by its peculiar facts—specifically, to projects on unusual sites that, in the normal course of events, would probably be acquired and preserved by the city regardless of whether a housing project was proposed.334 Otherwise, a city could foist pointless delays and paperwork (through an EIR) on any project just by establishing a nominal “land preservation fund” and putting enough money in it to create the theoretical possibility of buying any site on which a housing development happens to be proposed.335
Instead of reading Save the Hill broadly, future courts should follow another recent case, Tiburon Open Space Committee v. County of Marin336 which reinforced Sequoyah Hills and vindicated the larger principle of tailoring CEQA review to the scope of an agency’s regulatory discretion. At issue was a low-density residential project nearly as old as CEQA itself. In 1976, litigation between the developer and the county ended with a stipulated settlement that entitled the developer to build forty-three single-family homes on half-acre lots.337 But nothing comes easy for developers in Marin, and the project went through additional litigation (concluding with a stipulated judgment in 2007) and an EIR process that took nearly a decade to wrap up.338 Opponents challenged the EIR for not adequately analyzing a reduced-density alternative with thirty-two rather than forty-three homes.339 The court’s response was sharp and to the point: the thirty-two-unit alternative was “legally infeasible,” because inconsistent with the 1976 and 2007 332 See CAL. PUB. RES. CODE § 21080(a) (CEQA applies to “discretionary projects proposed to be carried out or approved by public agencies”); Protecting Our Water & Env't Res. v. Cnty. of Stanislaus, 10 Cal. 5th 479, 472 P.3d 459 (2020) (explicating the ministerial/discretionary line). 333 Cf. Joseph L. Sax, Takings and the Police Power, 74 YALE L.J. 36, 62-63 (1964) (distinguishing between government acting in regulatory and enterprise capacities for purposes of a theory of unconstitutional takings). 334 In Save the Hills, the city had two conservation land-acquisition funds that it had recently used nearby, and the project site was eligible for acquisition using these funds. 76 Cal. App. 5th at 1109-12; Dan T. Coenen, Untangling the Market-Participant Exemption to the Dormant Commerce Clause, 88 MICH. L. REV. 395 (1989) (exploring distinction in Dormant Commerce Clause jurisprudence between government as regulator and government as market participant),
335 In discussing the possibility that the City change the zoning designation at the project site, the Court seemed to assume that the only potential difficulty was the possibility of a Takings Clause lawsuit. Id. at 1111-12 & n.5. But downzoning the project site very likely would violate state law. The HAA requires cities to process housing project applications on the basis of standards in place at time of application, and this takes downzoning off the table. CAL.
GOV’T CODE § 65589.5(o). And Sequoyah Hills held that an EIR needn’t consider “reduced-density alternatives” that HAA doesn’t permit. CAL. GOV’T CODE § 66300(b), (i). Moreover, downzoning might separately violate the Housing Crisis Act, which disallows downzoning unless the City modifies zoning or standards elsewhere in the city to ensure no net loss in residential capacity. CAL. GOV’T CODE § 66300(b), (i). 336
78 Cal. App. 5th 700 (2022).
337 Id. at 710-11.
338 Draft EIRs were prepared for previous iterations of the project in 1996 and 2001. The draft EIR for the project at issue in Tiburon Open Space decision was first circulated in 2011. See id. at 715, n. 6. 339 Id. at 728-29.
Electronic copy available at: https://ssrn.com/abstract=3980396 Agenda Item #5.1.
49 settlements, and therefore “could legitimately have been omitted from the EIR.”340 Accordingly, any attack on the EIR’s analysis of that alternative must fail.341 “The scope of environmental review must be commensurate with an agency’s retained discretionary authority,” the Tiburon Open Space court emphasized, “including any limitations imposed by legal obligations.”
342 Sequoyah Hills was said to be “unusually instructive” on this point.343 But the passage in Tiburon Open Space that most strongly encourages a rethinking of how CEQA applies to housing approvals that are ministerial in some respects but discretionary in others is the closing peroration.344 Although “CEQA was meant to serve noble purposes,” the court wrote, “it can be manipulated to be a formidable tool of obstruction, particularly against proposed projects that will increase housing density.”345 The court then critiqued CEQA as a statute that “has not aged well,” one which is “worsening California’s housing crisis” by serving as “the tool of choice for resisting change that would accommodate more people in existing communities.”346 The opinion concludes:
It must be tough enough when the opposition is purely private. However, when private opposition is joined with official hostility, CEQA becomes an even more fearsome weapon. When the project proponent faces sustained private opposition, plus the combined animus of two levels of local government, the temptation to throw in the towel must be overwhelming.
Something is very wrong with this picture.347
This is more a sensibility than a recipe for CEQA reform. But it is a striking illustration of how recent efforts to address California’s housing shortage are leading judges and others to question the formerly sacrosanct CEQA. And, as we’ve shown in this section, the sensibility of Tiburon Open Space can be paired with its central legal proposition—calibrate the scope of environmental review to scope of agency discretion—to yield a CEQA that does not threaten HAA-protected projects.
C. The Governor’s Role
Courts are conservative creatures. It is rare that they upend long-established precedents—or editorialize against a statute. Although the newly-super HAA provides a very good rationale for courts to revisit, and limit, the dubious CEQA-baseline precedents, other actors also have important roles to play.
340 Id. at 741.
341 Id.
342 Id. at 731.
343 Id. at 735.
344 Id. at 780-83.
345 Id. 782.
346 Id.
347 Id. at 782-83.
Electronic copy available at: https://ssrn.com/abstract=3980396 Agenda Item #5.1.
50 CEQA authorizes the Governor’s Office of Planning and Research and the Natural Resources Agency to issue implementing guidelines.348 At least once every two years, the Office of Planning and Research “shall recommend proposed changes or amendments” to the Guidelines, which the Natural Resources Agency then can certify and adopt.349 If environmental review is to be reshaped by an HAA-informed theory of causation, the Guidelines are an excellent tool with which to do it.
350
The Guidelines are a good tool for this purpose not only because making policy and changing direction is, by tradition, more squarely in the agency wheelhouse than the judicial wheelhouse, but also because of politics.351 Through his appointments and directives, the Governor can shape the Guidelines.352 And the Governor is probably better positioned than any other state-level actor to navigate the politically treacherous waters of CEQA reform.
Though CEQA was spawned at a moment of environmental idealism, the continued strength of CEQA today has much to do with the constellation of interest groups—first and foremost the building trades unions—that have mastered the art of using CEQA to extract costly concessions from developers.353 In expensive housing markets, the threat of CEQA litigation and delay can 348 CAL. PUB. RES. CODE § 21083.
349 CAL. PUB. RES. CODE § 21083(f).
350 The courts give substantial deference to the guidelines. See California Bldg. Indus. Assn. v. Bay Area Air Quality Mgmt. Dist., 62 Cal. 4th 369, 381 (2015) (“Whether the Guidelines are binding or merely reflect the Resources Agency’s interpretation of the statute, we should afford great weight to the Guidelines when interpreting CEQA….”).
351 A further point: risk-averse developers will not push the CEQA envelope without a cooperative city partner (one which is willing to roll the dice on a streamlined CEQA review) and a strong basis for thinking that the courts will accept the innovation. Thus, if the Governor doesn’t use the Guidelines to invite HAA-tailored CEQA analysis of housing projects, the courts may never have an occasion to consider whether this type of analysis is legally sufficient. Even if courts adopt our position that a bad-faith denial of a CEQA clearance violates the HAA (see Part II.C.1, supra), a developer would not succeed in challenging a city’s denial of a negative declaration (in favor of a full EIR) if the city reasonably relied on existing CEQA precedents about causation and baselines. By contrast, if the Governor does use the Guidelines as we suggest, the interest groups that benefit from the status quo are sure to sue right away, and the courts have held that facial challenges to a new CEQA Guideline may be brought as soon as the Guideline takes effect. See Communities for a Better Env’t v. Cal. Res. Agency, 103 Cal. App. 4th 98, 106, 126 Cal.
Rptr. 2d 441, 446 (2002), as modified (Nov. 21, 2002) (“At issue in this case is whether the subject Guidelines, which public agencies must follow to implement CEQA, facially violate CEQA statutes and case law. As such, the matter presents a concrete legal dispute ripe for our consideration.”). 352 The Governor has the power to appoint the Director of Planning and Research. CAL. GOV’T CODE § 65038; see id. § 65037 (stating that the Director “shall be responsible to the Governor”). The Secretary of the Natural Resources Agency is appointed by the Governor, subject to Senate confirmation, and “hold[s] office at the pleasure of[] the Governor.” CAL. GOV’T CODE § 12801. See also Miriam Seifter, Gubernatorial Administration, 131 HARV. L. REV. 483, 527 (2017) (noting the “substantial control governors possess over the majority of state agencies that have no constitutional status”).
353 The extent of what is sometimes called “CEQA greenmailing” is impossible to quantify because of nondisclosure agreements, but anecdotal evidence of the practice and, especially, the vehemence with which the building trades lobby against CEQA reform suggest that the problem is substantial. See generally Manuela Tobias, What One Thing Do Republican Recall Candidates Blame for California’s Housing Crisis?, CALMATTERS, Sept. 7, 2021 (canvassing the debate over CEQA); Christian Britschgi, How California Environmental Law Makes It Easy For Labor Unions To Shake Down Developers, REASON, Aug. 21, 2019, https://reason.com/2019/08/21/how-california-environmentallaw-makes-it-easy-for-labor-unions-to-shake-down-developers/ (discussing mechanisms and reviewing evidence of CEQA greenmailing); Matt Levin, Commentary: Five Things I’ve Learned Covering California’s Housing Crisis that You Should Know, CALMATTERS, Jan. 6, 2021 (stating, as “Lesson 4,” that “[t]he state construction workers’ Electronic copy available at: https://ssrn.com/abstract=3980396 Agenda Item #5.1.
51 be used to make developers sign project-labor and “community benefit” agreements with influential unions and nonprofits.354 The building trades wield a lot of power in Sacramento, and in recent years they’ve derailed every legislative proposal for CEQA reform or streamlining unless it requires qualifying projects to use union labor.355 Not even a trivial bill that would let churches build affordable housing without CEQA review could escape Labor’s grip.356 But a popular governor should feel much less threatened by the building trades than the average state legislator, who needs campaign donations and third-party independent expenditures just for name recognition.357
Of course, no Governor can single-handedly make the HAA stick in a manner that limits abusive use of CEQA. If there were a legislative consensus that project-labor agreements are more important than housing production, the legislature could quickly abrogate any reformist CEQA Guidelines and then override a gubernatorial veto. But it’s a fair hope that no such veto-proof consensus exists. California’s Republican legislative caucus is no fan of CEQA,358 and Democratic legislators are loathe to override their co-partisan Governor.359 Moreover, politically vulnerable legislators, who wouldn’t dare cast a roll call vote against the trades, may acquiesce in the appointment of pro-housing committee chairs, who in turn could block any bill that would undo a revision of the CEQA Guidelines. It is also possible that a transparent, public debate about CEQA abuse—a debate that would probably accompany any legislative effort to roll back the reformed Guidelines—might itself subtly alter the politics of CEQA reform, in a way that gives the HAA the upper hand.360
union has way more influence than you think it does,” and detailing union’s central role in killing bills that would create CEQA exemptions for housing development); Manuela Tobias, Is Union Labor Requirement in the Way of Easing California’s Affordable Housing Crisis?, CALMATTERS, June 16, 2021 (reporting on unions’ success in blocking any housing bill that does not include a “skilled and trained” labor requirement). 354 Britschgi, supra note 353.
355 See Tobias, supra note 353, Levin, supra note 353; see generally Miriam Seifter, Further from the People: The Puzzle of State Administration, 93 N.Y.U. L. REV. 107, 135-36 (2018) (noting a dramatic increase in state-level lobbying over the last 15 years).
356 Alexei Koseff, California Housing Bills Run Into Wall of Union Resistance, S.F. CHRONICLE, Aug. 25, 2020, https://www.sfchronicle.com/politics/article/California-housing-bills-run-into-wall-of-union-15514503.php (describing the demise of SB 899).
357 The Governor as of this writing, Gavin Newsom, was elected by a twenty-four point margin, https://ballotpedia.org/California_gubernatorial_election,_2018, and defeated a recall attempt by the same margin, https://ballotpedia.org/Gavin_Newsom_recall,_Governor_of_California_(2019-2021). He has also railed against CEQA, calling it “so damn abused” and blaming Ronald Reagan for it. Tweet from @manuelatobiasm, reporting on Governor’s news conference, May 13, 2022, 11:08 am,
https://mobile.twitter.com/manuelatobiasm/status/1525176181707837441. 358 Tobias, supra note 353.
359 Joe Garofoli, Why Lawmakers Won’t Override a Veto from Newsom, or Any Other Governor, S.F. Chronicle, Oct. 15, 2021.
360 A side note: Given the constellation of interests with a stake in the CEQA and housing fight, one might worry that an unexpectedly broad reading of the HAA, or of CEQA, would undermine future legislative reform by making it harder for swing voters in the legislature to have confidence in the compromises they might secure. Professors Rodriguez and Weingast have argued that “expansionist” judicial interpretation of progressive federal statutes passed in the 1960s and early 1970s had exactly this effect vis-a-vis later Congresses. Daniel B. Rodriguez & Barry R. Weingast, The Paradox of Expansionist Statutory Interpretations, 101 NW. U.L. REV. 1207 (2007). Their argument has a lot of force in cases where an expansionist reading of the statute would disrupt a discernable legislative bargain. But where the statute being read expansively features a codified legislative instruction to read it Electronic copy available at: https://ssrn.com/abstract=3980396 Agenda Item #5.1.
52 Although super-statutes on Eskridge and Ferejohn’s telling embody great normative principles,361 it appears that CEQA’s continued potency owes much to a small number of rentseeking interest groups that depend on it. The generational clash between the HAA and CEQA is about power as much as principle.
IV. Conclusion
Most legal scholarship on administrative law and statutory interpretation focuses on federal law and seeks to reach trans-substantive answers to the Big Questions. Questions like, “When is an agency decision final for purposes of judicial review?,” “In what circumstances may a court look behind the stated reasons for agency action?,” and “When should the policies of one statute inform the interpretation of another?” Yet trans-substantive answers are often disappointingly elusive.
In exploring this family of questions in the context of one state (California) and one area of law (land use), we hope to open some eyes to the world beyond the federal paradigm, a world in which the Big Questions take on different and sometimes surprising hues. For example, the pretext inquiry, which can seem intractable, pointless, or even illegitimate in the context of federal administrative law (where the Administrative Procedures Act offers no textual support for it, and where the agency head is usually the alter ego of the President),362 looks much more appropriate when the agency is an elected city council, the domain is land use, and the council is constrained by a state law whose central premise is that city councils are not to be trusted in development permitting.
We also hope this paper serves as a useful reminder that super-statutes aren’t super for all time.
In 1970, in the wake of massive construction projects and rapid development across California, it was reasonable to believe that slowing construction down would help the environment. The foundational CEQA cases were decided accordingly. But today, slow construction of housing in developed, high-demand places has made housing wildly unaffordable where people want to live, exacerbating socioeconomic and racial inequality. What’s more, slow construction expansively (like that in the HAA), and where the expansive reading concerns a question the Legislature did not even debate (baselines and causation for CEQA analysis of HAA protected projects), it can’t be said that the judiciary or the executive branch is undermining legislative compromise by giving effect to the codified interpretive instruction. Indeed, it’s possible that when the legislature added the interpretive instruction to the HAA in 2017, it did so because lawmakers wanted judges to interpret the statute in ways that would achieve pro-housing objectives while saving lawmakers from taking politically “tough” votes against the trades. We don’t know whether this is the case, any more than we know whether the CEQA-savings clause was added to the HAA in 1990 to propitiate building-trades unions. But in the absence of any information about this, it would be odd for courts to refrain from fitting CEQA and the HAA together in a way that honors the policies of both statutes because of some remote possibility that doing so would unravel a secret legislative bargain. 361 Eskridge & Ferejohn, supra note 10, at 1216-17 (stating that super-statutes “occupy the legal terrain once called ‘fundamental law,’ foundational principles against which people presume their obligations and rights are set,” and that such statutes “are both principled and deliberative and, for those reasons, have attracted special deference and respect”).
362 See Gavoor & Platt, supra note 186; Nou, supra note 186.
Electronic copy available at: https://ssrn.com/abstract=3980396 Agenda Item #5.1.
53 undermines today’s environmental goals by pushing new housing to fire-prone inland areas from which residents must commute for hours in carbon-spewing cars.363 In its amendments strengthening the HAA, the legislature rejected many of CEQA’s normative premises in the context of housing. Courts should take heed. 363 Jones et al., supra note 34, at 35.
Electronic copy available at: https://ssrn.com/abstract=3980396 Agenda Item #5.1.
From: Kaur, Reena (SFO - X56916)
To: Public Comment
Cc: Golub, Daniel R (SFO - X56976); Sterling, William E (SFO - X72024) Subject: FW: [External] Hunter Subdivision Project Conditions of Approval, May 1, 2023 City Council Meeting Date: Thursday, April 27, 2023 3:46:44 PM
Attachments: 2023-04-26 Correspondence to St. Helena re Unlawful Conditions on Hunter Subdivision.pdf Dear Clerk,
Please see the attached correspondence regarding the Hunter Subdivision project. Please ensure that this correspondence is included in the agenda materials for the May 1, 2023 Special City Council meeting.
Thanks,
Reena Kaur | Holland & Knight
Practice Assistant
Holland & Knight LLP
560 Mission Street, Suite 1900 | San Francisco, California 94105 Phone 415.743.6916 | Fax 415.743.6910
[email protected] | www.hklaw.com
From: Kaur, Reena (SFO - X56916)
Sent: Wednesday, April 26, 2023 2:49 PM
To: [email protected]; [email protected]; [email protected]; [email protected]; [email protected]; [email protected]; [email protected]
Cc: Golub, Daniel R (SFO - X56976) <[email protected]>; Sterling, William E (SFO - X72024) <[email protected]>
Subject: Hunter Subdivision Project Conditions of Approval, May 1, 2023 City Council Meeting Dear Mayor, Vice Mayor, and Councilmembers,
Please see the attached correspondence regarding the Hunter Subdivision project. Please ensure that this correspondence is included in the agenda materials for the May 1, 2023 Special City Council meeting.
Thanks,
Reena Kaur | Holland & Knight
Practice Assistant
Holland & Knight LLP
560 Mission Street, Suite 1900 | San Francisco, California 94105 Phone 415.743.6916 | Fax 415.743.6910
Agenda Item #5.1.
[email protected] | www.hklaw.com
NOTE: This e-mail is from a law firm, Holland & Knight LLP ("H&K"), and is intended solely for the use of the individual(s) to whom it is addressed. If you believe you received this e-mail in error, please notify the sender immediately, delete the e-mail from your computer and do not copy or disclose it to anyone else. If you are not an existing client of H&K, do not construe anything in this e-mail to make you a client unless it contains a specific statement to that effect and do not disclose anything to H&K in reply that you expect it to hold in confidence. If you properly received this e-mail as a client, co-counsel or retained expert of H&K, you should maintain its contents in confidence in order to preserve the attorney-client or work product privilege that may be available to protect confidentiality.
Agenda Item #5.1.
560 Mission Street, Suite 1900 | San Francisco, CA 94105 | T 415.743.6900 | F 415.743.6910 Holland & Knight LLP | www.hklaw.com
Daniel R. Golub
415-743-6900
[email protected]
April 26, 2023
Via Email and First-Class Mail
Paul Dohring, Mayor
Eric Hall, Vice Mayor
Anna Chouteau, Council Member
Lester Hardy, Council Member
Billy Summers, Council Member
CITY OF ST.HELENA CITY COUNCIL
1088 College Avenue
St. Helena, CA 94574
Re: Hunter Subdivision Project
Dear Mayor Dohring, Vice Mayor Hall, and Councilmembers:
Holland & Knight LLP has represents Dennis Hunter, Kelly and Ben Vanzutphen, and White Fang Properties, LLC (collectively, the “Applicant Team”) in connection with the Hunter Subdivision project located north of Hunt Avenue (APN 009-030-057) (the “Project”) in St.
Helena (the “City”). Our West Coast Land Use & Environmental Law practice group focuses specifically on enforcing recently reformed provisions of state housing law, in particular Housing Element Law and the Housing Accountability Act.
We appreciate the City Planning Commission recommendation of approval of the Project and staff’s recommendation that the Council approve the Project as well. As set forth infra, and acknowledged in staff’s reports on the Project, approval of this extraordinarily delayed Project is critical to the City’s compliance with Housing Element Law and is required by the Housing Accountability Act (“HAA”). 1 However, we follow up on the issues raised in our February 2, 2023 Correspondence to the Planning Commission, which addressed numerous onerous conditions of approval (the “Conditions”) that the City has imposed upon the Project. As detailed in that letter, 1) Conditions 88, 90, and 91 contradict the City’s contractual promise to develop storm water infrastructure based on the projected build-out of the Project; 2) numerous Conditions contain subjective requirements that violate the HAA; and 3) many of the Conditions 1 Gov. Code § 65589.5.
Agenda Item #5.1.
St. Helena City Council
April 26, 2023
represent arbitrary property restrictions that lack proportionality to the impact of the Project and are therefore constitutionally impermissible.
The Applicant Team maintains its broader objections to the Conditions referenced in the February 2, 2023 Correspondence, but this letter focuses specifically on those Conditions with problematic requirements 1) related to water neutrality, or 2) that impact the City’s contractual responsibility for storm water infrastructure. We note that, shortly before the February 7 Planning Commission hearing, City staff proposed revisions to three Conditions, and that these revised Conditions were ultimately adopted at the hearing. The Applicant Team appreciates the City’s willingness to engage on the substance of these Conditions, but believes that further revisions are necessary to comply with applicable law, as addressed in greater detail below.
1. The City’s approval of the Project, under terms that will allow it feasibly to be developed, is crucial to the City’s Compliance with Housing Element Law.
As an initial matter, we note that the Department of Housing and Community Development (“HCD”) recently rejected the City’s draft housing element for the second time. As you know, the City’s failure to provide meaningful assurances with respect to the Project was central to this rejection:
The element is crediting 87 units from the Hunter Subdivision Project towards the RHNA. HCD’s prior review found that the City must analyze the likelihood that this project will be built and units will be available during the planning period.
Additionally, the prior review found that HCD has received public comments regarding the City’s ability to process and approve this project in a timely manner.
Further, this analysis is particularly important given that the project has been pending since the 4th cycle planning period and the project will help the City provide housing and build a portion of their RHNA. The element was revised to state that the project will receive “planning approvals in the near future” and the next planning commission hearing is in February. This does not address HCD’s prior review. The element should clearly indicate timelines and remaining steps to fully entitle this project and demonstrate the likelihood these units will become available during the planning period. Lastly, the revised element is now crediting these units towards the City’s above moderate-income RHNA.
However, HCD received public comments from the applicant indicating that 20 percent of the project will be affordable via deed restrictions in line with the City’s inclusionary requirements. The element could be revised to credit a portion of these units towards the City’s lower-income RHNA. Based on the outcomes of a complete analysis, the element should include a program to monitor the progress of the project and take alternative action if the project is not entitled and permit are not issued in a timely manner.
Agenda Item #5.1.
St. Helena City Council
April 26, 2023
The Applicant Team is eager to do its part to bring much-needed (and state-mandated) housing to the City. Approving the Project is only the least the City can do to satisfy the state and the public that the Project is a feasible development site, as the City’s Housing Element promises; the City must also address Conditions that threaten the viability of the Project. Without ensuring that the Project is free from onerous and unlawful conditions that imperil the Project’s feasibility, the City cannot meet its statutory obligation to “remove governmental constraints that hinder the locality from meeting its share of the regional housing need . . ..”2 Nor can the City achieve the
fundamental goal of Housing Element Law, which “is not just to identify land, but to pinpoint sites that are adequate and realistically available for residential development targets . . ..”3 To that end, this correspondence identifies the Conditions that present the most serious concerns, in the spirit of cooperation and in the interest of assisting the City’s efforts to produce a housing element that complies with state law.
2. Conditions 88, 90, and 91 should be revised to correctly indicate that the City is responsible for providing adequate storm water infrastructure for the Project site.
As we explained in our previous correspondence, in January of 2009, Mr. Hunter and the City entered into an Agreement of Purchase and Sale (the “Agreement”) with respect to the City’s purchase of property in connection with its flood control project.4 In the Agreement, the City
committed “to build certain retention and drainage facilities,” including a new detention basin and drainage ditches, and modifications to the then-existing detention basin inlet. Agreement, §
1.7. Per the Agreement, the City was obligated to construct this infrastructure “based upon the projected build-out of [the Project].” Agreement, § 1.7(c).
Conditions 88, 90, 91 implicate these obligations. They are discussed in turn below.
Condition 88. 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.
The Agreement obligates the City to develop storm water infrastructure based upon the projected build-out of the Project, as discussed above. This Condition flatly contradicts that obligation.
The Staff Report prepared for the May 1, 2023 City Council hearing indicates with respect to Condition 88: “The applicant requested deleting this condition. Staff disagreed, but did agree to 2 Gov. Code § 65583(a)(5).
3 Martinez v. City of Clovis (Apr. 7, 2023, No. F082914) ___Cal.App.5th___ [2023 Cal. App. LEXIS 268, at *52], citing Gov. Code § 65583(c)(1).
4 The Agreement is attached hereto as Attachment A. The related Settlement Agreement resulting from a dispute regarding the Agreement is attached hereto as Attachment B.
Agenda Item #5.1.
St. Helena City Council
April 26, 2023
minor wording changes, as discussed above.”5 The “minor wording changes,” however, are not traceable to any concerns raised by the Applicant Team. To the contrary, those changes (clarifying that all storm water improvements must be installed prior to issuance, and that the Applicant Team must install those improvements at its expense) disregard the concerns raised by the Applicant Team in its February 2, 2023 correspondence.
This Condition should either be deleted entirely, or modified to reflect the City’s ultimate responsibility for these improvements, in accordance with the Agreement.
Condition 90. Post-development flows storm water discharge from parcel 009-030-057 shall not exceed the pre-development discharge including the projected build-out, expressed as 30% undeveloped pervious and 70% impervious drainage watershed. Applicant shall prepare an analysis to show compliance with this COA. Refer to COA #90 for additional requirements of the analysis.
The City amended this Condition prior to the February 7 Planning Commission hearing by deleting the existing language in its entirety and replacing it with the above language.
While the Applicant Team does not object to the substance of Condition 90, the cross-reference to Condition 90 (which should be corrected to reflect renumbering) introduces an apparently unintended ambiguity regarding which party is to bear the costs of any necessary improvements that are indicated by the analysis. The proposed revision that the Applicant Team suggests with respect to Condition 91 below should, if adopted, resolve this ambiguity.
Condition 91. 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 offsite 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. In the unlikely event that the downstream facilities require improvements, the applicant shall enter a Funding Agreement as a means of reimbursement from the City.
The City amended Condition 90 by adding the underlined text prior to the February 7 Planning Commission hearing.
The Applicant Team requests that the Condition be further modified as follows to clarify that the City is responsible for reimbursing the Applicant, pursuant to the Agreement: “In the unlikely event that the downstream facilities require improvements, the applicant and the City shall enter a Funding Agreement whereby the applicant is reimbursed for said improvements by the City.” The Staff Report, which suggests that the previous revisions were designed “to provide for 5 Report to the City Council (May 1, 2023 Hearing), at 20 (https://sthelena.civicweb.net/document/73337/Hunter%20Project%20- %20EIR%20and%20Tentative%20Map.pdf?handle=1E3AF87EBDF8430C96935C79A339A296).
Agenda Item #5.1.
St. Helena City Council
April 26, 2023
potential reimbursement by the City for the cost of downstream flood control improvements built by the applicant,” indicates that this requested further revision is consistent with the City’s intent.
The fact that the City revised Condition 91 to acknowledge its responsibility for storm water infrastructure is wholly inconsistent with its unexplained refusal to make the same revisions with respect to Condition 88. The Agreement obligates the City and the City alone to bear the cost of these improvements. The Conditions should be revised to reflect that obligation consistently.
3. Condition 73 should be amended to allow the Project to offset water usage on a pro rata basis.
Condition 73 concerns the requirement to offset the Project’s water usage. As currently drafted, it reads as follows:
Condition 73. As detailed in the Final EIR for the project, the Developer is required to offset 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.
The Applicant Team requests that the underlined portion of Condition 73 be modified to allow the issuance of building permits as water neutrality is achieved on a pro rata basis. The Applicant Team proposes the following amendment, but is amenable to alternative language that will achieve the same result: “No building permit for a given dwelling unit may be issued until the City has confirmed that the Developer has completed the approved measures to offset the water demand corresponding to that dwelling unit and such measures have been accepted by the City….”
Allowing the Applicant Team to offset water demand incrementally, rather than for the entire Project at the outset, is significantly more economically feasible from the Applicant Team’s perspective. From the City’s perspective, meanwhile, the requested revision achieves the same water neutrality goals as the current language does. The Applicant Team submits that the Agenda Item #5.1.
St. Helena City Council
April 26, 2023
requested revision would represent a meaningful action from the City in doing its part to ensure that the Project is developed in a timeframe consistent with its obligations under Housing Element Law.
4. The City should abide by the Staff Report’s recommendations with respect to CEQA and state housing law.
At its February 7, 2023 hearing, the Planning Commission unanimously recommended certifying the Final EIR that is before City Council. That recommendation was correct. The Project has been subject to CEQA review for more than a decade. To say that sufficient review has been conducted is an understatement. Irrespective of one’s views about the merits of the Project, there is no legitimate question about whether the EIR that City staff prepared, and that the Planning Commission carefully reviewed and favorably recommended, meets the standards for certification provided in CEQA.6
The Staff Report also correctly observes that the Project is protected under the Housing Accountability Act (“HAA”), and that the HAA “significantly restricts the grounds pursuant to which a housing development project can be denied.”7
As the Staff Report rightly notes,
disapproval of the Project must be based on a preponderance of evidence supporting a finding of a specific health or safety impact that cannot be avoided or mitigated, under the very demanding 6 Many legal observers have noted with concern that some cities faced with a legal obligation to approve housing have tried to engage in bad faith arguments about the need for more CEQA in order to avoid having to ever approve the housing for which they have planned. See, e.g., Jennifer L. Hernandez et al., In the Name of the Environment (2015); Moira O’Neill, et al., Getting it Right: Examining the Local Land Use Entitlement Process in California to Inform Policy and Process (Berkeley Law Center for Law, Energy & the Environment; Berkeley Institute of Urban & Regional Development, Columbia Graduate School of Architecture, Planning & Preservation, February 2018), available at https://www.law.berkeley.edu/wp-content/uploads/2018/02/Getting_It_Right.pdf (in major jurisdictions, “even if . . . developments comply with the underlying zoning code, they require additional scrutiny from the local government before obtaining a building permit,” which “triggers CEQA review of these projects”; “Our data shows that in many cases, these cities appear to impose redundant or multiple layers of discretionary review on projects”); Moira O’Neill et al., Developing Policy from the Ground Up: Examining Entitlement in the Bay Area to Inform California’s Housing Policy Debates, 25 HASTINGS ENVTL. L. J. 1, 73-77 (2019); Christopher S. Elmendorf, Beyond the Double Veto: Housing Plans As Preemptive Intergovernmental Compacts (2019) 71 HASTINGS L.J. 79, 132-34 (noting that especially before 2017, local jurisdictions were largely free to ignore their own plans for meeting regional housing goals, and could always use CEQA to kill housing approvals); Christopher S. Elmendorf & Timothy G. Duncheon, When Super-Statutes Collide: CEQA, the Housing Accountability Act, and Tectonic Change in Land Use Law (2022) ECOLOGY LAW QUARTERLY, VOL. 49 ( https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3980396). We are sure we have no need for any concern the City Council would resort to this kind of obviously unlawful action, such as by contending that the ten-year-plus process to achieve this EIR was somehow an insufficient environmental review. 7 Report to the City Council (May 1, 2023 Hearing), at 7
(https://sthelena.civicweb.net/document/73337/Hunter%20Project%20- %20EIR%20and%20Tentative%20Map.pdf?handle=1E3AF87EBDF8430C96935C79A339A296).
Agenda Item #5.1.
St. Helena City Council
April 26, 2023
definitions, burdens of proof and standards of review provided in the HAA.8 As no such finding can be made here, it would be unlawful to disapprove the Project or reduce its density.
Finally, the Applicant Team notes that the EIR concludes that the Project would have significant and unavoidable environmental impacts with respect to Vehicle Miles Traveled (“VMT”).9 To
be clear, the Applicant Team disputes these findings and the Council could and should find the impact actually less than significant.10 But assuming arguendo that the EIR’s conclusions are correct, the Staff Report’s recommendation to adopt a Statement of Overriding Considerations is also correct. We note that CEQA provides for public agencies to adopt such a statement of overriding considerations where “specific overriding . . . legal . . . benefits” of approving a project outweigh its significant and unavoidable environmental effects.11 Here, in addition to the considerations listed in staff’s recommendations, the City’s need to comply with the HAA and with Housing Element Law should also be considered an additional additional and independent legal benefit of approving the Project.12
//
8 Report to the City Council (May 1, 2023 Hearing), at 7 (https://sthelena.civicweb.net/document/73337/Hunter%20Project%20- %20EIR%20and%20Tentative%20Map.pdf?handle=1E3AF87EBDF8430C96935C79A339A296).; Gov. Code § 65589.5(j)(1).
9 Report to the City Council (May 1, 2023 Hearing), at 12-13 (https://sthelena.civicweb.net/document/73337/Hunter%20Project%20- %20EIR%20and%20Tentative%20Map.pdf?handle=1E3AF87EBDF8430C96935C79A339A296). 10 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); Pub. Res.
Code §21082.2(a).
11 Pub. Res. Code § 21081(b).
12 See Tiburon Open Space Committee v. County of Marin (2022) 78 Cal.App.5th 700, 733 (“A statement of overriding considerations—which is the finding described in subdivision (b) of section 21081—is to be used in situations where the public agency deems a project sufficiently important or desirable for reasons that override the normal obligation to mitigate significant environmental effects. One of those statutory reasons allows for considerations, conditions, or factors that are ‘legal.’”) (citing Pub. Res. Code §§ 21081, subds. (a)(3), (b), 21002.1, subd. (b); CEQA Guidelines § 15364).
Agenda Item #5.1.
St. Helena City Council
April 26, 2023
For the foregoing reasons, the Applicant Team requests that the City modify Conditions 73, 88, 90, and 91 as set forth above. The Applicant Team expressly reserves its 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
Agenda Item #5.1.
ATTACHMENT A
Agenda Item #5.1.
STAFF REPORT
DATE: December 9, 2008
TO: Mayor and Council
FROM: Bert Johansson, City Manager
RE: Hunter Property Purchase/Sales Agreement
BACKGROUND:
The original EIR for the flood protection project was certified by the City Council in February 2004. The project approved at that time was referred to as the Enhancement Minimum Plan - Modification A (EMPA) and is referred to in this document as the "2004 Plan".
Shortly following the City Council’s approval of the 2004 Plan, an environmental advocacy organization called Living Rivers Council (“LRC”) filed litigation against the City, alleging that the EIR certified by the City Council prior to project approval failed to satisfy the mandates of CEQA. Pursuant to settlement negotiations in 2005 between the City and LRC, a series of project refinements, proposed by LRC as part of a proposed Settlement Agreement between the parties, were considered and ultimately adopted by the City Council. These refinements were studied in an Addendum, which was considered by the City Council, along with the original EIR, prior to adopting the changes. The Addendum found, and the City Council concurred, that the refinements did not result in any new significant impacts nor any substantially more severe significant impacts than those disclosed in the original EIR. The revised project was referred to as the "2005 Plan".
In 2006, the City identified a funding shortfall that made full implementation of the 2005 Plan impossible for the foreseeable future. As a result of this fiscal reality, and because of the pressing need to obtain improved flood control for St. Helena, the City examined design alternatives that would substantially reduce project costs. A CEQA addendum for what become known as the 2006 Plan embodied the project refinements developed by the City in response to these changed circumstances. Notably, the City developed these refinements so as to be fully consistent with the express terms of the Settlement Agreement reached between the City and LRC to settle the CEQA litigation filed by LRC. The 2006 addendum examined the environmental impact of the project as proposed, which included elements of the 2004 Plan, the 2005 Plan, and the proposed refinements in comparison to the project impacts disclosed in the 2004 EIR for the original project. The City Council approved the CEQA addendum and the 2006 Plan on June 27, 2006.
On the basis of those approvals the attached purchase and sales agreement was negotiated with Mr. Dennis Hunter for acquisition of property necessary for the flood project.
Agenda Item #5.1.
DISCUSSION/ANALYSIS:
As it pertains to the attached proposed property acquisition, the 2006 Plan adopted the following refinements when compared to the February 2004 approvals:
- Modified Terrace B - Terrace B will be narrower within the VVMHP, and wider and higher in the vineyard adjacent to the VVMHP than in the 2004 Plan. Terrace B will not include an inlet from the river channel and will minimize the removal of trees in the riparian remnant. - No Relocation Area - The number of home relocations will be reduced from 33 to 17. Where these home sites are occupied, the intent is to relocate them to unoccupied pads within the VVMHP and/or for the City to purchase available VVMHP homes as replacements. Where home sites to be removed are not occupied, no relocation is proposed. This eliminates the need to construct the relocation area in the adjacent vineyard. - Refinement No. 5/Drainage Design - Drainage will be rerouted from an existing storm drain on Starr Avenue into a new storm drain that will be routed outside the new levee and then into a grass-lined swale that drains into and through Terrace B. The existing culverts that drain into the Napa River will be abandoned. Interior drainage will be via a detention basin with a low level culvert and lift pump facilities that will empty into the grass-lined swale on Terrace B. - Refinement No. 6/Soil Disposal - Four options for soil disposal are included in the 2006 Plan:
(1) disposal on the Miller Parcel and the vineyard portion of the Hunter parcel; (2) disposal on the Miller Parcel, the vineyard portion of the Hunter parcel and additional areas on the Hunter parcel; (3) disposal on the Miller Parcel with off haul of excess soil; and (4) off haul of all excess soil. - Adams Street Causeway/Bridge - This project feature will be considered a separate project by the City and will only be considered after preparation of a separate CEQA evaluation.
The 2006 Plan also includes a public trail, described in the 2006 Plan as:
[A]pproximately six feet wide and constructed with a compacted surface to be accessible to persons with disabilities. While the exact location of the trail is not set, it will begin in the vicinity of the end of the Adams Street levee at the outer edge of Terrace B and run on the river side of proposed new floodwall/levee. The trail will end in the vicinity of the southern tip of Terrace B.
As noted above, the 2004 project included the extension of Adams; however, this aspect of the project was eliminated after the Living Rivers Council litigation.
The 2004 CEQA/EIR document addressed growth inducing potential on land currently zone medium density residential, specifically the Hunter and Miller parcels. This finding was one of the areas of contention in the initial LRC litigation. In December, 2004, Napa Superior Court found that the EIR was inadequate in one respect—because it did not contain an adequate discussion of the cumulative impact analysis required by CEQA. In all other respects, it rejected LRC’s challenge to the EIR; as it pertains to the growth inducing potential the court stated:
Agenda Item #5.1.
LRC also filed litigation regarding the 2006 Plan. That litigation proceeded to the California Court of Appeal which issued a ruling in January 2008 affirming the City’s actions.
To conform to the construction plans which are based upon the 2006 Plan, the flood project needs to acquire 3.69 acres of land from Dennis Hunter, a portion of APN No. 009-030-020 in order to construct maintenance roads, levees and public pathways for the flood project, in addition to easements for storm drains and water lines. A summary of the negotiations:
- The City’s October 2007 appraisal indicated that the fair market value of the Hunter property interests was $558,000/acre.
- At a meeting in the Fall of 2007, Hunter indicated that he would have appraisal support for $900,000/acre or more than $3.3 million for the necessary property interests. This was far greater than any amount the City could afford.
- The only alternative to reaching a negotiated settlement with Hunter was to pursue an eminent domain action, which would result in extensive attorney’s fees and costs, and not provide the fiscal certainty of a negotiated purchase. In addition, an eminent domain action would likely have delayed the project.
- The parties agreed to value the property above the floodplain at $700,000/acre and the property within the floodplain at $325,000/acre, so long as the City would also convey additional land from the former Miller parcel. These prices were based on the likelihood that a trial would result in a determination of land value between $900,000/acre and $558,000/acre. By utilizing the remnant of the former Miller parcel, the City is making an $899,500 cash payment. The calculation, as set forth in the Agreement, is as follows:
Purchase Price. The parties hereby acknowledge and agree that the fair market value of the 1.20 Acres [Hunter floodplain property] and the 3.58 Acres [former Miller floodplain property] is Three Hundred Twenty Five Thousand Dollars ($325,000) per acre and that the fair market value of the 2.39 Acres [Hunter non-floodplain property] is Seven Hundred Thousand Dollars ($700,000) per acre. Consequently, the agreed upon value of each property is as follows:
Agenda Item #5.1.
Property Value
3.58 Acres $1,163,500 (valued at $325,000 per acre)
1.20 Acres $390,000 (valued at $325,000 per acre)
2.39 Acres $1,673,000 (valued at $700,000 per acre)
Thus, the balance of the purchase price to be paid by the City at Closing shall be $899,500 [the value of the 1.20 acres and the 2.39 acres ($1,673,000 + $390,000) minus the credit received by the City for the 3.58 acres ($1,163,500)].
Throughout the process, the City consistently confirmed that any agreement would not constitute agreement to land use entitlements or promises to develop, development agreements, etc. The Agreement is simply a land exchange and purchase agreement – nothing more, nothing less. The Hunter property and the available portion of the former Miller parcel are already zoned for Medium Density Residential development, and the Agreement does not change that fact. The CEQA documentation discussed above noted:
Consistent with the City of St. Helena’s General Plan, removal of [the Hunter and Miller parcels] from the floodplain could facilitate the development of housing.
The City has planned on this growth and factored the potential for new housing units on this property into its General Plan. (RDEIR, pp. 4-23 to 4-25.) Under the [2004] Project, however, only about half of [the Miller parcel] would be used for relocated VVMHP homes. The remainder of [Miller] would be retained permanently as open space. (RDEIR, p. 5-16.)
In the Agreement, about half of what would have been redeveloped on Miller will now be added to open space, as only 3.58 acres has been reconfigured for acquisition of the necessary Hunter property . Further, no development on the portion exchanged will occur unless and until Hunter submits a development application consistent with any subdivision and zoning requirements applicable at the that time, including the requirement for compliance with any CEQA review.
Because the property boundaries change, a lot line adjustment was necessary in order to formalize the new property boundaries. If Hunter intends in the future to development, he must still apply for entitlements and the City retains all of its powers, whatever those may be, to approve, comment on, and/or reject Hunter’s development plans, including under CEQA. The Agreement does not affect the status quo or make it any easier for the land to develop. In fact, the ‘panhandle’ is smaller after the exchange than before the exchange, further complicating Hunter’s development of this area,
The City will also save considerable construction costs (several hundred thousands of dollars estimated) under the Agreement, which permits depositing usable dirt, excavated as part of the project, on the Hunter property, instead of having to deposit the dirt offsite. The deposit of dirt is in conformance with the 2006 Addendum.
FISCAL IMPACT:
The $899,500 cash payment will be funded by the State Revolving Fund Loan
Agenda Item #5.1.
ALTERNATIVES:
1. Reject the purchase sales agreement
2. Propose changes
3. Accept the purchase sales agreement
RECOMMENDED COUNCIL ACTION:
Approve attached purchase sales agreement under terms outlined in the agreement and authorize the City Manager to execute the agreement.
ATTACHMENTS/EXHIBITS:
1. Agreement of Purchase and Sale.
Agenda Item #5.1.
Agreement of Purchase and Sale By and
Between the City of St. Helena and Dennis Hunter
HELE\45969\734110.6
1 AGREEMENT OF PURCHASE AND SALE
THIS AGREEMENT OF PURCHASE AND SALE (“Agreement”) is made and entered into as of _______________, 2008 (the “Effective Date”), by and between the City of St. Helena (the “City”), and Dennis R. Hunter (“Hunter”).
RECITALS
A. Hunter owns that certain real property located in the City of St. Helena, State of California, consisting of approximately 3.69 acres, together with all appurtenant improvements, rights, interests, easements, tenements and estates, a portion of APN No. 009-030-020, more fully described on Exhibit A (the “Hunter Property”).
B. A portion of the Hunter Property, consisting of approximately 1.20 acres, as shown on Exhibit B, is located below the flood plain (the “1.20 Acres”). The remaining portion of the Hunter Property, consisting of approximately 2.39 acres as shown on Exhibit B, is located above the flood plain (the “2.39 Acres”). A .10 acre portion of the Hunter Property located below the floodplain is not shown on Exhibit B
C. The City owns that certain real property located in the City of St. Helena, State of California, consisting of approximately 3.58 acres located below the flood plain, together with all appurtenant improvements, rights, interests, easements, tenements and estates, as more fully described on Exhibit C (the “3.58 Acres”). The Hunter Property and the 3.58 Acres may be referred to individually as a “property” and collectively as the “properties.” D. The Hunter Property and the 3.58 Acres are designated in the City’s general plan as MR / Medium Density Residential 5.1 to 16 units per acre.
E. The City intends to use the 3.58 Acres for the advancement of the St. Helena Comprehensive Flood Control Protection Project (the “Project”) based on the City’s desire to acquire the Hunter Property from Hunter and Hunter’s desire to acquire the 3.58 Acres from the City, in accordance with the terms and conditions set forth in this Agreement.
F. In furtherance of the Project, the City has secured a loan from the State Revolving Fund of the State Water Resources Control Board, the terms of which require that the City request funds for property acquisition thirty to forty-five (30-45) days before the close of escrow on the purchase of such property.
NOW, THEREFORE, for and in consideration of the mutual covenants and agreements contained in this Agreement, and other good and valuable consideration, the receipt and adequacy of which is hereby acknowledged by the parties hereby agree as follows:
ARTICLE 1: LOT LINE ADJUSTMENT; EASEMENTS
1.1 Lot Line Adjustment. The City hereby covenants and agrees to promptly process and cause to be recorded at Closing (as defined below) the lot line adjustments required to Agenda Item #5.1.
Agreement of Purchase and Sale By and
Between the City of St. Helena and Dennis Hunter
HELE\45969\734110.6
2 establish the property configurations shown on Exhibit D. Following the Lot Line Adjustment, the City will own 15.691 acres and Hunter will own 16.903 acres.
1.2 Grant of Temporary Easement. For good and valuable consideration, Hunter hereby grants to the City an exclusive easement (the “Temporary Easement”) to use the Hunter Property prior to the Close of Escrow (as defined below) for the purposes set forth in the St.
Helena Comprehensive Flood Control Protection Project. The Temporary Easement herein granted shall commence upon the Effective Date and shall merge into the grant deed upon Hunter’s conveyance of the Hunter Property to the City.
1.3 Grant of Construction Easement. For good and valuable consideration, Hunter hereby grants to the City a temporary, non-exclusive easement (the “Construction Easement”), in accordance with the terms of that certain Construction Easement in the form attached hereto as Exhibit E, over, under, across, above and through that certain real property shown on Exhibit E hereto (the “Construction Easement Area”) for ingress and egress and for construction related purposes in connection with the Project. This Construction Easement is intended to be temporary in nature and shall terminate on December 31, 2012.
1.4 Grant of Utility Easement. For good and valuable consideration, Hunter hereby grants to the City a non-exclusive perpetual easement (the Utility Easement”), in accordance with the terms of that certain Utility Easement in the form attached hereto as Exhibit F, over under, across, above and through that certain real property shown on Exhibit F hereto (the “Utility Easement Area”) for the purposes of installing, constructing, operating, using, maintaining, repairing, and replacing utility facilities, lines or connections and any uses incidental thereto.
1.5 Depositing of Dirt. Hunter hereby grants to the City the right, at no additional cost to the City and at no cost to Hunter, to deposit dirt, excavated by the City in connection with the Project, on that certain real property (the “Fill Area”) described on the Soil Stockpile Grading Plan attached hereto as Exhibit G. City and its contractors and agents shall prepare the Fill Area to receive the dirt by removing vines and other vineyard improvements and place the fill in a good and workman-like manner.
1.6 Well Access License. Hunter hereby grants to the City a license at no additional cost to the City and at no cost to Hunter, to access and use water from the existing well shown on Exhibit G in connection with the Project. For good and valuable consideration, Hunter hereby grants to the City a temporary, non-exclusive license (the “Well Access License”) over, under, across, above and through properties to be owned by Hunter, including the 3.58 Acres. This Well Access License is intended to be temporary in nature and to continue only during the performance of the Project. The Well Access License shall terminate, without the necessity of further documentation, upon completion of the Project.
1.7 Drainage Improvements. The City intends as a part of the Project to build certain retention and drainage facilities as specifically described as follows:
Agenda Item #5.1.
Agreement of Purchase and Sale By and
Between the City of St. Helena and Dennis Hunter
HELE\45969\734110.6
3 (a) The City will construct a compacted earth fill pad on the remainder of APN No. 009-030-020 (“Hunter Remainder”) (exclusive of the Hunter Property) and on the
3.58 Acres in accordance with the enclosed Exhibit G. The source of the soil material to construct the pad shall be the City’s Flood Protection Project, with unsuitable material (defined as organic content in excess of 3.5%) segregated and placed in areas outside of the useable pad area shown on Exhibit G. Pad construction will comply with the notes on the exhibit and finish graded to provide positive drainage in accordance with Exhibit G. The level of the pad may vary based upon the amount of material generated from the Project with the elevation of the pad adjusted uniformly.
(b) Upon completion of the Project, the then existing drainage patterns for the Hunter Remainder and the 3.58 Acres shall remain undisturbed by the City, with exception of the new pad drainage. Drainage ditches on the pad will be routed to the new detention basin shown on Exhibit G. The City will modify its existing detention basin inlet from the storm drain system to provide a storm drain inlet for pad drainage.
(c) The City will size storm water drainage handling facilities downstream of the site, to be constructed as part of the Project, based upon projected build-out of the Hunter Remainder and the 3.58 Acres, as currently zoned Medium-density Residential (MR) (as defined in the St. Helena Municipal Code Section 17.40), expressed as a 70% impervious drainage watershed.
(d) The City agrees to reroute the existing water main crossing the Hunter Remainder in Easement 895 (OR 383 NCR), as shown on the enclosed Exhibit H. Relocation will be completed by the City prior to development of the Hunter Remainder and the 3.58 Acres.
The City’s easement for the section of pipe being abandoned will be quit-claimed and returned to Hunter once the relocation is complete.
1.8 Sewer Connection. Upon any application for development of the Hunter Property as referenced in this Agreement, City will not unreasonably withhold its permission for Hunter to cross City property to access a sewer connection. Nothing in this section shall be construed as an entitlement to development, and Hunter is responsible for obtaining all necessary development approvals from the City and any other agencies with jurisdiction over the Hunter Property.
1.9 Covenants Running with the Land. The terms and conditions contained in this Article 1 shall (a) constitute covenants running with the land, (b) survive the Close of Escrow, and (c) bind the parties hereto, their heirs, successors and assigns.
1.10 Payment of Taxes. All real property taxes and assessments on the Hunter Property (prior to Close of Escrow) and the Construction Easement Area shall be payable by Hunter.
ARTICLE 2: PURCHASE AND SALE
2.1 Hunter Property. The parties hereby acknowledge and agree that the City requires the Hunter Property in connection with the Project. Accordingly, the City has forced a sale of Agenda Item #5.1.
Agreement of Purchase and Sale By and
Between the City of St. Helena and Dennis Hunter
HELE\45969\734110.6
4 the Hunter Property by Hunter under the threat of condemnation, on the terms and conditions set forth herein.
2.2 3.58 Acres. As partial consideration for the sale of the Hunter Property pursuant to Section 2.1, above, the City hereby agrees to convey the 3.58 Acres to Hunter, on the terms and conditions set forth herein.
ARTICLE 3: PURCHASE PRICE
3.1 Purchase Price. The parties hereby acknowledge and agree that the fair market value of the 1.20 Acres and the 3.58 Acres is Three Hundred Twenty Five Thousand Dollars ($325,000) per acre and that the fair market value of the 2.39 Acres is Seven Hundred Thousand Dollars ($700,000) per acre. Consequently, the agreed upon value of each property is as follows:
Property Value
3.58 Acres $1,163,500 (valued at $325,000 per acre)
1.20 Acres $390,000 (valued at $325,000 per acre)
2.39 Acres $1,673,000 (valued at $700,000 per acre)
Thus, the balance of the purchase price to be paid by the City at Closing shall be $899,500 [the value of the 1.20 acres and the 2.39 acres ($1,673,000 + $390,000) minus the credit received by the City for the 3.58 acres ($1,163,500)].
ARTICLE 4: CLOSING
4.1 Closing. Hunter hereby covenants and agrees to cooperate with the City in connection with the City’s application for a loan from the State Revolving Fund of the State Water Resources Control Board and satisfying all requirements thereof. The consummation of the transactions contemplated herein (the “Closing” or “Close of Escrow”) shall occur on or before November 1, 2008 at the office of North Bay Title Co, Santa Rosa, California (“Escrow Agent”); provided, however, that the date for the Close of Escrow shall be subject to extension to the extent required by the State Revolving Fund. Upon satisfaction or completion of all closing conditions and deliveries, the parties shall direct Escrow Agent to immediately record and deliver the closing documents to the appropriate parties and make disbursements according to the closing statements executed by the City and Hunter.
4.2 Escrow Fee. Except as expressly provided herein to the contrary, the escrow fee, if any, charged by Escrow Agent, shall be paid in accordance with customary practices in Napa County.
4.3 Hunter’s Deliveries into Escrow. At least one (1) business day prior to the Closing Date, Hunter shall deliver to Escrow Agent for distribution to the appropriate party(ies) at Closing, the following:
Agenda Item #5.1.
Agreement of Purchase and Sale By and
Between the City of St. Helena and Dennis Hunter
HELE\45969\734110.6
5 (a) Grant Deed. A grant deed in conformity with the custom in the State of California, executed and acknowledged by Hunter, conveying to the City fee simple title to the Hunter Property.
(b) Prorations. Hunter’s share of any prorations or expenses. (c) Tax Certificates. A Foreign Investment in Real Property Tax Act affidavit and a California Form 593-C, executed by Hunter.
(d) State Law Disclosures. Such disclosures and reports as are required by applicable state and local law in connection with the conveyance of real property. (e) Additional Documents. Any additional documents that the City or the Escrow Agent may reasonably require for the proper consummation of the transactions contemplated by this Agreement.
4.4 The City’s Deliveries into Escrow. At least one (1) business day prior to the Closing Date, the City shall deliver to Escrow Agent for distribution to the appropriate party(ies) at Closing, the following:
(a) Purchase Price. The balance of the purchase price, if any, plus or minus applicable prorations and expenses.
(b) Grant Deed. A grant deed in conformity with the custom in the State of California, executed and acknowledged by the City, conveying to Hunter fee simple title to the
3.58 Acres.
(c) State Law Disclosures. Such disclosures and reports as are required by applicable state and local law in connection with the conveyance of real property. (d) Additional Documents. Any additional documents that Hunter or the Escrow Agent may reasonably require for the proper consummation of the transactions contemplated by this Agreement.
4.5 Closing Statements. At least one (1) business day prior to the Closing Date, Hunter and the City shall deposit with Escrow Agent executed closing statements consistent with this Agreement in the form required by Escrow Agent.
ARTICLE 5: PRORATIONS AND EXPENSES
5.1 Prorations.
(a) Taxes and Assessments. All non-delinquent real estate taxes and nondelinquent assessments on the properties shall be prorated as of 12:01 a.m. on the day of the Close of Escrow based on the actual current tax bill. All delinquent taxes and all delinquent assessments, interest and penalties (if any) with respect to a property, shall be paid at the Close of Escrow by the party conveying such property. If any information needed for the final Agenda Item #5.1.
Agreement of Purchase and Sale By and
Between the City of St. Helena and Dennis Hunter
HELE\45969\734110.6
6 proration of any item is not available as reasonably determined by Escrow Agent and the parties are notified of the same prior to Closing, the parties shall re-prorate such item after Closing and payment shall be made promptly to the party entitled thereto. The provisions of this Section
5.1(a) shall survive the Close of Escrow
(b) Sales, Transfer, and Documentary Taxes. The parties shall pay, in accordance with customary practices in Napa County, all sales, gross receipts, compensating, stamp, excise, documentary, transfer, deed or similar taxes and fees imposed in connection with the transactions contemplated hereunder.
5.2 No Brokers. Hunter and the City represent and warrant each to the other that they have not dealt with any real estate broker, sales person or finder in connection with this Agreement. In the event of any claim for broker’s or finder’s fees or commissions in connection with the negotiation, execution or consummation of this Agreement or the transactions contemplated hereby, each party shall indemnify and hold harmless the other party from and against any such claim based upon any statement, representation or agreement of such party.
ARTICLE 6: REPRESENTATIONS AND WARRANTIES
6.1 Hunter’s Representations and Warranties. Hunter represents and warrants to the City that:
(a) Conflicts and Pending Actions or Proceedings. There is no agreement to which Hunter is a party or, to Hunter ’s knowledge, binding on Hunter which is in conflict with this Agreement. There is no action or proceeding pending or, to Hunter’s knowledge, threatened against Hunter or relating to the Hunter Property which challenges or impairs Hunter’s ability to execute or perform its obligations under this Agreement. (b) No Encumbrances. Hunter has not alienated, encumbered, transferred, mortgaged, assigned, pledged, or otherwise conveyed its interest in the Hunter Property or any portion thereof, nor entered into any agreement to do so, and there are no liens, encumbrances, mortgages, covenants, conditions, reservations, restrictions, easements or other matters affecting the Hunter Property, except as disclosed in the preliminary title report delivered to the City.
Hunter shall not, directly or indirectly, alienate, encumber, transfer, mortgage, assign, pledge, or otherwise convey its interest prior to the Close of Escrow, as long as this Agreement is in force. (c) Contractors and Suppliers. All contractors, subcontractors, suppliers, architects, engineers, and others who have performed services or labor or have supplied materials in connection with Hunter’s acquisition, development, ownership, or management of the Hunter Property have been paid in full and all liens arising therefrom (or claims which with the passage of time or the giving of notice, or both, could mature into liens) have been satisfied and released.
6.2 City’s Representations and Warranties. The City represents and warrants to Hunter that the City has the full right, capacity, power and authority to enter into and carry out the terms of this Agreement. This Agreement has been duly executed by the City, and upon delivery to and execution by Hunter shall be a valid and binding agreement of the City.
Agenda Item #5.1.
Agreement of Purchase and Sale By and
Between the City of St. Helena and Dennis Hunter
HELE\45969\734110.6
7 6.3 Survival of Representations and Warranties. The representations and warranties set forth in this Article 6 are made as of the Effective Date and are remade as of the Closing Date and shall not be deemed to be merged into or waived by the instruments of Closing, but shall survive the Closing. Each party agrees to defend and indemnify the other against any claim, liability, damage or expense asserted against or suffered by such other party arising out of the breach or inaccuracy of any such representation or warranty.
ARTICLE 7: DEFAULT AND REMEDIES
7.1 Default. If the transactions contemplated hereunder fail to close as a result of a party’s default, the non-defaulting party shall be entitled to such remedies for breach of contract as may be available at law and/or in equity including, without limitation, the remedy of specific performance.
7.2 Notice of Default. Except for a party’s failure to close on the Closing Date, neither party shall have the right to declare a default by the other party and terminate this Agreement because of a failure by such other party to perform under the terms of this Agreement unless the other party shall fail to cure such failure to perform within ten (10) days after its receipt of written notice of such failure to perform.
7.3 Other Expenses. If this Agreement is terminated due to the default of a party, such defaulting party shall pay any fees due to Escrow Agent.
ARTICLE 8: DUE DILIGENCE; AS-IS; RELEASE
8.1 Due Diligence Investigation. Hunter acknowledges that it has had an opportunity to conduct its due diligence investigation of the 3.58 Acres, and hereby approves the condition and suitability of the 3.58 Acres for Hunter’s purposes. The City acknowledges that it has had an opportunity to conduct its due diligence investigation of the Hunter Property, and hereby approves the condition and suitability of the Hunter Property for the City’s purposes. The parties shall continue to operate and maintain their respective properties, prior to the Close of Escrow, in substantially the same manner that such were operated and maintained as of the Effective Date. (a) Hunter has reviewed a preliminary title report for the 3.58 Acres and approved all of the following exceptions to title: (a) standard printed exceptions in the preliminary title report; (b) general and special real property taxes and assessments constituting a lien not yet due and payable; and (c) the title exceptions listed on Exhibit I attached hereto. The City shall deliver title to the 3.58 Acres to Hunter at the Closing subject only to the foregoing approved exceptions.
(b) The City has reviewed a preliminary title report for the Hunter Property and approved all of the following exceptions to title: (a) standard printed exceptions in the preliminary title report; (b) general and special real property taxes and assessments constituting a lien not yet due and payable; and (c) the title exceptions listed on Exhibit J attached hereto.
Hunter shall deliver title to the Hunter Property to the City at the Closing subject only to the foregoing approved exceptions.
Agenda Item #5.1.
Agreement of Purchase and Sale By and
Between the City of St. Helena and Dennis Hunter
HELE\45969\734110.6
8 8.2 “As-Is” Sale. Each party hereby acknowledges and agrees that, neither the other party, nor anyone acting for or on behalf of such other party, has made any representations, warranties, or promises, concerning the condition of the properties or any other aspect of the properties. Each party further acknowledges that HE OR IT WILL BE ACQUIRING THE PROPERTIES, AS APPLICABLE, BASED UPON THEIR “AS-IS” CONDITION AND THEIR
STATE OF REPAIR INCLUSIVE OF ALL FAULTS AND DEFECTS, WHETHER KNOWN
OR UNKNOWN, AS MAY EXIST AS OF THE CLOSE OF ESCROW, AND EACH PARTY
EXPRESSLY ASSUMES THE RISK THAT ADVERSE PHYSICAL, ENVIRONMENTAL, FINANCIAL AND LEGAL CONDITIONS MAY NOT BE REVEALED BY SUCH PARTY’S DUE DILIGENCE INVESTIGATION (IF ANY).
8.3 Disclaimer. Except for a breach of this Agreement, each party hereby fully and forever waives and disclaims, all warranties of whatever type or kind with respect to the property acquired by him or it, whether express, implied or otherwise including, without limitation, those of fitness for a particular purpose, tenantability, habitability or use.
8.4 Release and Waiver. Each party hereby fully and forever releases, acquits and discharges the other party of and from, and hereby fully and forever waives any and all claims, actions, causes of action, suits, proceedings, demands, rights, damages, costs, expenses or other compensation whatsoever, whether known or unknown, direct or indirect, foreseeable or unforeseeable, absolute or contingent (“Claims”), that such party now has or may have or which may arise in the future arising out of, directly or indirectly, or in any way connected with the condition of the property acquired by him or it. The parties hereby agree that the matters released in this Section 8.4 are not limited to matters which are known or disclosed and, with respect to the foregoing release, each party hereby waives any and all rights and benefits which he or it now has, or in the future may have, conferred upon him or it, by virtue of the provisions of Section 1542 of the Civil Code of the State of California (or any other statute or common law principles of similar effect), which Section provides as follows:
A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS
WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT
TO EXIST IN HIS OR HER FAVOR AT THE TIME OF
EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM
OR HER MUST HAVE MATERIALLY AFFECTED HIS OR
HER SETTLEMENT WITH THE DEBTOR.
In this connection, each party acknowledges and agrees that it understands that factual matters relating directly to the properties now unknown to him or it may have given or may hereafter give rise to claims that are presently unknown, unanticipated and unsuspected, and such party further acknowledges and agrees that the releases herein have been negotiated and agreed upon in light of that realization and that it nevertheless intends to release, discharge and acquit the other party from any such unknown claims.
Hunter’s Initials: ___________ City’s Initials: ____________ Agenda Item #5.1.
Agreement of Purchase and Sale By and
Between the City of St. Helena and Dennis Hunter
HELE\45969\734110.6
9 8.5 Delivery of Title Policy. At Hunter’s request, the Title Company shall deliver to Hunter an owner’s policy of title insurance issued by the Title Company as of the Closing Date, insuring Hunter as owner of fee simple title to the 3.58 Acres. At the City’s request, the Title Company shall deliver to the City an owner’s policy of title insurance issued by the Title Company as of the Closing Date, insuring the City as owner of fee simple title to the Hunter Property. Notwithstanding the foregoing, the Title Company’s delivery or willingness to deliver the foregoing title policies shall not be a condition precedent to either party’s obligation to close hereunder. Each party shall pay the premium for their respective title policies.
ARTICLE 9: NOTICES
9.1 Notices. All notices required or permitted hereunder shall be in writing and shall be served on the parties at the addresses set forth below. Any such notices shall be either (a) sent by overnight delivery using a nationally recognized overnight courier, in which case notice shall be deemed delivered one business day after deposit with such courier, (b) sent by facsimile, in which case notice shall be deemed delivered upon transmission of such notice, or (c) sent by personal delivery, in which case notice shall be deemed delivered upon receipt. A party’s address may be changed by written notice to the other party; provided, however, that no notice of a change of address shall be effective until actual receipt of such notice. Copies of notices are for informational purposes only, and a failure to give or receive copies of any notice shall not be deemed a failure to give notice.
(a) If to Hunter:
Dennis R. Hunter
P. O. Box 9069
Santa Rosa, CA 95405
Telephone: (707)579-1007
Facsimile: (707) 527-6151
With a copy to:
Clement, Fitzpatrick & Kenworthy
3333 Mendocino Avenue, Suite 200
Santa Rosa, California 95403
Attn: Clayton E. Clement
Telephone: (707)523-1181
Facsimile: (707) 546-1360
(b) If to the City:
City of St. Helena
1480 Main Street
St. Helena, CA 94574
St. Helena, CA
Agenda Item #5.1.
Agreement of Purchase and Sale By and
Between the City of St. Helena and Dennis Hunter
HELE\45969\734110.6
10 Attn:City Manager
Telephone: (707) __________
Facsimile: (707) __________
With a copy to:
Miller Starr Regalia
Attn: Ethan Friedman
1331 North California Boulevard, Fifth Floor
Walnut Creek, CA 94596
Telephone: (925) 935-9400
Facsimile: (925) 933-4126
(c) If to Title Company or Escrow Agent:
Financial Title Company
______________
______________
Attn: ______________
Telephone: (___) __________
Facsimile: (___) __________
ARTICLE 10: MISCELLANEOUS
10.1 Parties Bound. This Agreement shall bind and shall inure to the benefit of the City, Hunter and their respective successors and assigns. Notwithstanding the foregoing, neither party may assign this Agreement without the prior written consent of the other, and any such prohibited assignment shall be void.
10.2 Headings. The article and paragraph headings of this Agreement are for convenience only and in no way limit or enlarge the scope or meaning of the language hereof.
10.3 Invalidity and Waiver. If any portion of this Agreement is held invalid or inoperative, then so far as is reasonable and possible the remainder of this Agreement shall be deemed valid and operative, and, to the greatest extent legally possible, effect shall be given to the intent manifested by the portion held invalid or inoperative. The failure by either party to enforce against the other any term or provision of this Agreement shall not be deemed to be a waiver of such party’s right to enforce against the other party the same or any other such term or provision in the future.
10.4 Governing Law. This Agreement shall, in all respects, be governed, construed, applied, and enforced in accordance with the law of the State of California.
10.5 Survival. The provisions of this Agreement that contemplate performance after the Closing and the obligations of the parties not fully performed at the Closing shall survive the Closing and shall not be deemed to be merged into or waived by the instruments of Closing.
Agenda Item #5.1.
Agreement of Purchase and Sale By and
Between the City of St. Helena and Dennis Hunter
HELE\45969\734110.6
11 10.6 No Third Party Beneficiary. This Agreement is not intended to give or confer any benefits, rights, privileges, claims, actions, or remedies to any person or entity as a third party beneficiary, decree, or otherwise.
10.7 Entirety and Amendments. This Agreement, together with all exhibits attached hereto and incorporated herein, embodies the entire agreement between the parties and supersede all prior agreements and understandings relating to the subject matter hereof. This Agreement may be amended or supplemented only by an instrument in writing executed by the party against whom enforcement is sought.
10.8 Time. Time is of the essence in the performance of this Agreement.
10.9 Attorneys’ Fees. Should either party employ attorneys to enforce any of the provisions hereof, the party against whom any final judgment is entered agrees to pay the prevailing party all reasonable costs, charges, and expenses, including reasonable attorneys’ fees, expended or incurred in connection therewith.
10.10 Construction. The parties acknowledge that the parties and their counsel have reviewed and revised this Agreement and agree that the normal rule of construction to the effect that any ambiguities are to be resolved against the drafting party shall not be employed in the interpretation of this Agreement or any exhibits or amendments hereto.
10.11 Calculation of Time Periods. Unless otherwise specified, in computing any period of time described herein, the day of the act or event after which the designated period of time begins to run is not to be included and the last day of the period so computed is to be included at, unless such last day is a Saturday, Sunday or legal holiday for national banks in the location where the properties are located, in which event the period shall run until the end of the next day which is neither a Saturday, Sunday, or legal holiday. The last day of any period of time described herein shall be deemed to end at 5:00 p.m. Pacific time.
10.12 Further Assurances. In addition to the acts and deeds recited herein and contemplated to be performed, executed and/or delivered by either party at Closing, each party agrees to perform, execute and deliver, but without any obligation to incur any additional liability or expense, on or after the Closing any further deliveries and assurances as may be reasonably necessary to consummate the transactions contemplated hereby or to further perfect the conveyance, transfer and assignment of the properties hereunder.
10.13 Execution in Counterparts. This Agreement may be executed in any number of counterparts, each of which shall be deemed to be an original, and all of such counterparts shall constitute one Agreement. To facilitate execution of this Agreement, the parties may execute and exchange by email or facsimile counterparts of the signature pages.
Agenda Item #5.1.
Agreement of Purchase and Sale By and
Between the City of St. Helena and Dennis Hunter
HELE\45969\734110.6
12 IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the Effective Date.
_____________________ CITY OF ST. HELENA
Dennis R. Hunter
By: _____________________
Name: Bert Johansson
Title: City Manager
Approved as to form:
______________________________
Amy L. Valukevich, City Attorney
Agenda Item #5.1.
Agenda Item #5.1.
Agenda Item #5.1.
Agenda Item #5.1.
Agenda Item #5.1.
Agenda Item #5.1.
ATTACHMENT B
Agenda Item #5.1.
Agenda Item #5.1.
Agenda Item #5.1.
Agenda Item #5.1.
Agenda Item #5.1.
Mayor Paul Dohring, ViceMayor Eric Hall, Council Members Choteau, Hardy, Summers City Manager Comello
1. Traffic problem has existed since this applica�on was first submited should be mi�gated. It has not been mi�gated, therefore the project should be denied.
2. Hunter is Not an affordable housing project.
25 units on a separate lot does not meet RHNA requirements nor St. Helena’s Zoning Code.
St. Helena’s Zoning Code states that 20% of a Residen�al Housing Development Units must be affordable and completed not later than the market rate component. The affordable units must be comparable in the number of bedrooms, exterior appearance and overall quality to the market rate units. The affordable units are required to be disbursed through out the project.
Hunter has NO affordable single family dwellings that apply to that criteria.
3. Public Safety: The Hunter Project adds at least 400 hundred people that would have to be evacuated if there were to be a fire or flood. If there were to be a fire on Pope Steet at night and Vineyard Valley, and the 400 residents of the Hunter project had to evacuate using the levee there would be a massive traffic jam that most likely result in a loss of lives. The evacua�on prac�ces that Vineyard Valley had were not surprises because the residents were warned ahead of �me and half the park le� over the levee and half on Pope street in the broad day light. In the night �me the exit levee would have to be lite so 300 plus Vineyard Valley residents could see to evacuate over the levee. Public safety should be the top priority of the City Council.
4. Measure A was presented to the residents in order to vote on financing the Napa Valley Flood projects. Measure A sec�on 2 G said “None of the projects in the Plan are intended or designed to encourage popula�on growth in Napa County” The Hunter project will cons�tute large growth in St.
Helena. Measure A had to pass with 67% of the vote and there is no way it would have if the voters did not believe Sec�on 2 G of the ordinance. If you pass this you are going what was promised to the voters.
Agenda Item #5.1.
560 Mission Street, Suite 1900 | San Francisco, CA 94105 | T 415.743.6900 | F 415.743.6910 Holland & Knight LLP | www.hklaw.com
Daniel R. Golub
415-743-6900
[email protected]
April 26, 2023
Via Email and First-Class Mail
Paul Dohring, Mayor
Eric Hall, Vice Mayor
Anna Chouteau, Council Member
Lester Hardy, Council Member
Billy Summers, Council Member
CITY OF ST.HELENA CITY COUNCIL
1088 College Avenue
St. Helena, CA 94574
Re: Hunter Subdivision Project
Dear Mayor Dohring, Vice Mayor Hall, and Councilmembers:
Holland & Knight LLP has represents Dennis Hunter, Kelly and Ben Vanzutphen, and White Fang Properties, LLC (collectively, the “Applicant Team”) in connection with the Hunter Subdivision project located north of Hunt Avenue (APN 009-030-057) (the “Project”) in St.
Helena (the “City”). Our West Coast Land Use & Environmental Law practice group focuses specifically on enforcing recently reformed provisions of state housing law, in particular Housing Element Law and the Housing Accountability Act.
We appreciate the City Planning Commission recommendation of approval of the Project and staff’s recommendation that the Council approve the Project as well. As set forth infra, and acknowledged in staff’s reports on the Project, approval of this extraordinarily delayed Project is critical to the City’s compliance with Housing Element Law and is required by the Housing Accountability Act (“HAA”). 1 However, we follow up on the issues raised in our February 2, 2023 Correspondence to the Planning Commission, which addressed numerous onerous conditions of approval (the “Conditions”) that the City has imposed upon the Project. As detailed in that letter, 1) Conditions 88, 90, and 91 contradict the City’s contractual promise to develop storm water infrastructure based on the projected build-out of the Project; 2) numerous Conditions contain subjective requirements that violate the HAA; and 3) many of the Conditions 1 Gov. Code § 65589.5.
Agenda Item #5.1.
St. Helena City Council
April 26, 2023
represent arbitrary property restrictions that lack proportionality to the impact of the Project and are therefore constitutionally impermissible.
The Applicant Team maintains its broader objections to the Conditions referenced in the February 2, 2023 Correspondence, but this letter focuses specifically on those Conditions with problematic requirements 1) related to water neutrality, or 2) that impact the City’s contractual responsibility for storm water infrastructure. We note that, shortly before the February 7 Planning Commission hearing, City staff proposed revisions to three Conditions, and that these revised Conditions were ultimately adopted at the hearing. The Applicant Team appreciates the City’s willingness to engage on the substance of these Conditions, but believes that further revisions are necessary to comply with applicable law, as addressed in greater detail below.
1. The City’s approval of the Project, under terms that will allow it feasibly to be developed, is crucial to the City’s Compliance with Housing Element Law.
As an initial matter, we note that the Department of Housing and Community Development (“HCD”) recently rejected the City’s draft housing element for the second time. As you know, the City’s failure to provide meaningful assurances with respect to the Project was central to this rejection:
The element is crediting 87 units from the Hunter Subdivision Project towards the RHNA. HCD’s prior review found that the City must analyze the likelihood that this project will be built and units will be available during the planning period.
Additionally, the prior review found that HCD has received public comments regarding the City’s ability to process and approve this project in a timely manner.
Further, this analysis is particularly important given that the project has been pending since the 4th cycle planning period and the project will help the City provide housing and build a portion of their RHNA. The element was revised to state that the project will receive “planning approvals in the near future” and the next planning commission hearing is in February. This does not address HCD’s prior review. The element should clearly indicate timelines and remaining steps to fully entitle this project and demonstrate the likelihood these units will become available during the planning period. Lastly, the revised element is now crediting these units towards the City’s above moderate-income RHNA.
However, HCD received public comments from the applicant indicating that 20 percent of the project will be affordable via deed restrictions in line with the City’s inclusionary requirements. The element could be revised to credit a portion of these units towards the City’s lower-income RHNA. Based on the outcomes of a complete analysis, the element should include a program to monitor the progress of the project and take alternative action if the project is not entitled and permit are not issued in a timely manner.
Agenda Item #5.1.
St. Helena City Council
April 26, 2023
The Applicant Team is eager to do its part to bring much-needed (and state-mandated) housing to the City. Approving the Project is only the least the City can do to satisfy the state and the public that the Project is a feasible development site, as the City’s Housing Element promises; the City must also address Conditions that threaten the viability of the Project. Without ensuring that the Project is free from onerous and unlawful conditions that imperil the Project’s feasibility, the City cannot meet its statutory obligation to “remove governmental constraints that hinder the locality from meeting its share of the regional housing need . . ..”2 Nor can the City achieve the
fundamental goal of Housing Element Law, which “is not just to identify land, but to pinpoint sites that are adequate and realistically available for residential development targets . . ..”3 To that end, this correspondence identifies the Conditions that present the most serious concerns, in the spirit of cooperation and in the interest of assisting the City’s efforts to produce a housing element that complies with state law.
2. Conditions 88, 90, and 91 should be revised to correctly indicate that the City is responsible for providing adequate storm water infrastructure for the Project site.
As we explained in our previous correspondence, in January of 2009, Mr. Hunter and the City entered into an Agreement of Purchase and Sale (the “Agreement”) with respect to the City’s purchase of property in connection with its flood control project.4 In the Agreement, the City
committed “to build certain retention and drainage facilities,” including a new detention basin and drainage ditches, and modifications to the then-existing detention basin inlet. Agreement, §
1.7. Per the Agreement, the City was obligated to construct this infrastructure “based upon the projected build-out of [the Project].” Agreement, § 1.7(c).
Conditions 88, 90, 91 implicate these obligations. They are discussed in turn below.
Condition 88. 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.
The Agreement obligates the City to develop storm water infrastructure based upon the projected build-out of the Project, as discussed above. This Condition flatly contradicts that obligation.
The Staff Report prepared for the May 1, 2023 City Council hearing indicates with respect to Condition 88: “The applicant requested deleting this condition. Staff disagreed, but did agree to 2 Gov. Code § 65583(a)(5).
3 Martinez v. City of Clovis (Apr. 7, 2023, No. F082914) ___Cal.App.5th___ [2023 Cal. App. LEXIS 268, at *52], citing Gov. Code § 65583(c)(1).
4 The Agreement is attached hereto as Attachment A. The related Settlement Agreement resulting from a dispute regarding the Agreement is attached hereto as Attachment B.
Agenda Item #5.1.
St. Helena City Council
April 26, 2023
minor wording changes, as discussed above.”5 The “minor wording changes,” however, are not traceable to any concerns raised by the Applicant Team. To the contrary, those changes (clarifying that all storm water improvements must be installed prior to issuance, and that the Applicant Team must install those improvements at its expense) disregard the concerns raised by the Applicant Team in its February 2, 2023 correspondence.
This Condition should either be deleted entirely, or modified to reflect the City’s ultimate responsibility for these improvements, in accordance with the Agreement.
Condition 90. Post-development flows storm water discharge from parcel 009-030-057 shall not exceed the pre-development discharge including the projected build-out, expressed as 30% undeveloped pervious and 70% impervious drainage watershed. Applicant shall prepare an analysis to show compliance with this COA. Refer to COA #90 for additional requirements of the analysis.
The City amended this Condition prior to the February 7 Planning Commission hearing by deleting the existing language in its entirety and replacing it with the above language.
While the Applicant Team does not object to the substance of Condition 90, the cross-reference to Condition 90 (which should be corrected to reflect renumbering) introduces an apparently unintended ambiguity regarding which party is to bear the costs of any necessary improvements that are indicated by the analysis. The proposed revision that the Applicant Team suggests with respect to Condition 91 below should, if adopted, resolve this ambiguity.
Condition 91. 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 offsite 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. In the unlikely event that the downstream facilities require improvements, the applicant shall enter a Funding Agreement as a means of reimbursement from the City.
The City amended Condition 90 by adding the underlined text prior to the February 7 Planning Commission hearing.
The Applicant Team requests that the Condition be further modified as follows to clarify that the City is responsible for reimbursing the Applicant, pursuant to the Agreement: “In the unlikely event that the downstream facilities require improvements, the applicant and the City shall enter a Funding Agreement whereby the applicant is reimbursed for said improvements by the City.” The Staff Report, which suggests that the previous revisions were designed “to provide for 5 Report to the City Council (May 1, 2023 Hearing), at 20 (https://sthelena.civicweb.net/document/73337/Hunter%20Project%20- %20EIR%20and%20Tentative%20Map.pdf?handle=1E3AF87EBDF8430C96935C79A339A296).
Agenda Item #5.1.
St. Helena City Council
April 26, 2023
potential reimbursement by the City for the cost of downstream flood control improvements built by the applicant,” indicates that this requested further revision is consistent with the City’s intent.
The fact that the City revised Condition 91 to acknowledge its responsibility for storm water infrastructure is wholly inconsistent with its unexplained refusal to make the same revisions with respect to Condition 88. The Agreement obligates the City and the City alone to bear the cost of these improvements. The Conditions should be revised to reflect that obligation consistently.
3. Condition 73 should be amended to allow the Project to offset water usage on a pro rata basis.
Condition 73 concerns the requirement to offset the Project’s water usage. As currently drafted, it reads as follows:
Condition 73. As detailed in the Final EIR for the project, the Developer is required to offset 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.
The Applicant Team requests that the underlined portion of Condition 73 be modified to allow the issuance of building permits as water neutrality is achieved on a pro rata basis. The Applicant Team proposes the following amendment, but is amenable to alternative language that will achieve the same result: “No building permit for a given dwelling unit may be issued until the City has confirmed that the Developer has completed the approved measures to offset the water demand corresponding to that dwelling unit and such measures have been accepted by the City….”
Allowing the Applicant Team to offset water demand incrementally, rather than for the entire Project at the outset, is significantly more economically feasible from the Applicant Team’s perspective. From the City’s perspective, meanwhile, the requested revision achieves the same water neutrality goals as the current language does. The Applicant Team submits that the Agenda Item #5.1.
St. Helena City Council
April 26, 2023
requested revision would represent a meaningful action from the City in doing its part to ensure that the Project is developed in a timeframe consistent with its obligations under Housing Element Law.
4. The City should abide by the Staff Report’s recommendations with respect to CEQA and state housing law.
At its February 7, 2023 hearing, the Planning Commission unanimously recommended certifying the Final EIR that is before City Council. That recommendation was correct. The Project has been subject to CEQA review for more than a decade. To say that sufficient review has been conducted is an understatement. Irrespective of one’s views about the merits of the Project, there is no legitimate question about whether the EIR that City staff prepared, and that the Planning Commission carefully reviewed and favorably recommended, meets the standards for certification provided in CEQA.6
The Staff Report also correctly observes that the Project is protected under the Housing Accountability Act (“HAA”), and that the HAA “significantly restricts the grounds pursuant to which a housing development project can be denied.”7
As the Staff Report rightly notes,
disapproval of the Project must be based on a preponderance of evidence supporting a finding of a specific health or safety impact that cannot be avoided or mitigated, under the very demanding 6 Many legal observers have noted with concern that some cities faced with a legal obligation to approve housing have tried to engage in bad faith arguments about the need for more CEQA in order to avoid having to ever approve the housing for which they have planned. See, e.g., Jennifer L. Hernandez et al., In the Name of the Environment (2015); Moira O’Neill, et al., Getting it Right: Examining the Local Land Use Entitlement Process in California to Inform Policy and Process (Berkeley Law Center for Law, Energy & the Environment; Berkeley Institute of Urban & Regional Development, Columbia Graduate School of Architecture, Planning & Preservation, February 2018), available at https://www.law.berkeley.edu/wp-content/uploads/2018/02/Getting_It_Right.pdf (in major jurisdictions, “even if . . . developments comply with the underlying zoning code, they require additional scrutiny from the local government before obtaining a building permit,” which “triggers CEQA review of these projects”; “Our data shows that in many cases, these cities appear to impose redundant or multiple layers of discretionary review on projects”); Moira O’Neill et al., Developing Policy from the Ground Up: Examining Entitlement in the Bay Area to Inform California’s Housing Policy Debates, 25 HASTINGS ENVTL. L. J. 1, 73-77 (2019); Christopher S. Elmendorf, Beyond the Double Veto: Housing Plans As Preemptive Intergovernmental Compacts (2019) 71 HASTINGS L.J. 79, 132-34 (noting that especially before 2017, local jurisdictions were largely free to ignore their own plans for meeting regional housing goals, and could always use CEQA to kill housing approvals); Christopher S. Elmendorf & Timothy G. Duncheon, When Super-Statutes Collide: CEQA, the Housing Accountability Act, and Tectonic Change in Land Use Law (2022) ECOLOGY LAW QUARTERLY, VOL. 49 ( https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3980396). We are sure we have no need for any concern the City Council would resort to this kind of obviously unlawful action, such as by contending that the ten-year-plus process to achieve this EIR was somehow an insufficient environmental review. 7 Report to the City Council (May 1, 2023 Hearing), at 7
(https://sthelena.civicweb.net/document/73337/Hunter%20Project%20- %20EIR%20and%20Tentative%20Map.pdf?handle=1E3AF87EBDF8430C96935C79A339A296).
Agenda Item #5.1.
St. Helena City Council
April 26, 2023
definitions, burdens of proof and standards of review provided in the HAA.8 As no such finding can be made here, it would be unlawful to disapprove the Project or reduce its density.
Finally, the Applicant Team notes that the EIR concludes that the Project would have significant and unavoidable environmental impacts with respect to Vehicle Miles Traveled (“VMT”).9 To
be clear, the Applicant Team disputes these findings and the Council could and should find the impact actually less than significant.10 But assuming arguendo that the EIR’s conclusions are correct, the Staff Report’s recommendation to adopt a Statement of Overriding Considerations is also correct. We note that CEQA provides for public agencies to adopt such a statement of overriding considerations where “specific overriding . . . legal . . . benefits” of approving a project outweigh its significant and unavoidable environmental effects.11 Here, in addition to the considerations listed in staff’s recommendations, the City’s need to comply with the HAA and with Housing Element Law should also be considered an additional additional and independent legal benefit of approving the Project.12
//
8 Report to the City Council (May 1, 2023 Hearing), at 7 (https://sthelena.civicweb.net/document/73337/Hunter%20Project%20- %20EIR%20and%20Tentative%20Map.pdf?handle=1E3AF87EBDF8430C96935C79A339A296).; Gov. Code § 65589.5(j)(1).
9 Report to the City Council (May 1, 2023 Hearing), at 12-13 (https://sthelena.civicweb.net/document/73337/Hunter%20Project%20- %20EIR%20and%20Tentative%20Map.pdf?handle=1E3AF87EBDF8430C96935C79A339A296). 10 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); Pub. Res.
Code §21082.2(a).
11 Pub. Res. Code § 21081(b).
12 See Tiburon Open Space Committee v. County of Marin (2022) 78 Cal.App.5th 700, 733 (“A statement of overriding considerations—which is the finding described in subdivision (b) of section 21081—is to be used in situations where the public agency deems a project sufficiently important or desirable for reasons that override the normal obligation to mitigate significant environmental effects. One of those statutory reasons allows for considerations, conditions, or factors that are ‘legal.’”) (citing Pub. Res. Code §§ 21081, subds. (a)(3), (b), 21002.1, subd. (b); CEQA Guidelines § 15364).
Agenda Item #5.1.
St. Helena City Council
April 26, 2023
For the foregoing reasons, the Applicant Team requests that the City modify Conditions 73, 88, 90, and 91 as set forth above. The Applicant Team expressly reserves its 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
Agenda Item #5.1.
ATTACHMENT A
Agenda Item #5.1.
STAFF REPORT
DATE: December 9, 2008
TO: Mayor and Council
FROM: Bert Johansson, City Manager
RE: Hunter Property Purchase/Sales Agreement
BACKGROUND:
The original EIR for the flood protection project was certified by the City Council in February 2004. The project approved at that time was referred to as the Enhancement Minimum Plan - Modification A (EMPA) and is referred to in this document as the "2004 Plan".
Shortly following the City Council’s approval of the 2004 Plan, an environmental advocacy organization called Living Rivers Council (“LRC”) filed litigation against the City, alleging that the EIR certified by the City Council prior to project approval failed to satisfy the mandates of CEQA. Pursuant to settlement negotiations in 2005 between the City and LRC, a series of project refinements, proposed by LRC as part of a proposed Settlement Agreement between the parties, were considered and ultimately adopted by the City Council. These refinements were studied in an Addendum, which was considered by the City Council, along with the original EIR, prior to adopting the changes. The Addendum found, and the City Council concurred, that the refinements did not result in any new significant impacts nor any substantially more severe significant impacts than those disclosed in the original EIR. The revised project was referred to as the "2005 Plan".
In 2006, the City identified a funding shortfall that made full implementation of the 2005 Plan impossible for the foreseeable future. As a result of this fiscal reality, and because of the pressing need to obtain improved flood control for St. Helena, the City examined design alternatives that would substantially reduce project costs. A CEQA addendum for what become known as the 2006 Plan embodied the project refinements developed by the City in response to these changed circumstances. Notably, the City developed these refinements so as to be fully consistent with the express terms of the Settlement Agreement reached between the City and LRC to settle the CEQA litigation filed by LRC. The 2006 addendum examined the environmental impact of the project as proposed, which included elements of the 2004 Plan, the 2005 Plan, and the proposed refinements in comparison to the project impacts disclosed in the 2004 EIR for the original project. The City Council approved the CEQA addendum and the 2006 Plan on June 27, 2006.
On the basis of those approvals the attached purchase and sales agreement was negotiated with Mr. Dennis Hunter for acquisition of property necessary for the flood project.
Agenda Item #5.1.
DISCUSSION/ANALYSIS:
As it pertains to the attached proposed property acquisition, the 2006 Plan adopted the following refinements when compared to the February 2004 approvals:
- Modified Terrace B - Terrace B will be narrower within the VVMHP, and wider and higher in the vineyard adjacent to the VVMHP than in the 2004 Plan. Terrace B will not include an inlet from the river channel and will minimize the removal of trees in the riparian remnant. - No Relocation Area - The number of home relocations will be reduced from 33 to 17. Where these home sites are occupied, the intent is to relocate them to unoccupied pads within the VVMHP and/or for the City to purchase available VVMHP homes as replacements. Where home sites to be removed are not occupied, no relocation is proposed. This eliminates the need to construct the relocation area in the adjacent vineyard. - Refinement No. 5/Drainage Design - Drainage will be rerouted from an existing storm drain on Starr Avenue into a new storm drain that will be routed outside the new levee and then into a grass-lined swale that drains into and through Terrace B. The existing culverts that drain into the Napa River will be abandoned. Interior drainage will be via a detention basin with a low level culvert and lift pump facilities that will empty into the grass-lined swale on Terrace B. - Refinement No. 6/Soil Disposal - Four options for soil disposal are included in the 2006 Plan:
(1) disposal on the Miller Parcel and the vineyard portion of the Hunter parcel; (2) disposal on the Miller Parcel, the vineyard portion of the Hunter parcel and additional areas on the Hunter parcel; (3) disposal on the Miller Parcel with off haul of excess soil; and (4) off haul of all excess soil. - Adams Street Causeway/Bridge - This project feature will be considered a separate project by the City and will only be considered after preparation of a separate CEQA evaluation.
The 2006 Plan also includes a public trail, described in the 2006 Plan as:
[A]pproximately six feet wide and constructed with a compacted surface to be accessible to persons with disabilities. While the exact location of the trail is not set, it will begin in the vicinity of the end of the Adams Street levee at the outer edge of Terrace B and run on the river side of proposed new floodwall/levee. The trail will end in the vicinity of the southern tip of Terrace B.
As noted above, the 2004 project included the extension of Adams; however, this aspect of the project was eliminated after the Living Rivers Council litigation.
The 2004 CEQA/EIR document addressed growth inducing potential on land currently zone medium density residential, specifically the Hunter and Miller parcels. This finding was one of the areas of contention in the initial LRC litigation. In December, 2004, Napa Superior Court found that the EIR was inadequate in one respect—because it did not contain an adequate discussion of the cumulative impact analysis required by CEQA. In all other respects, it rejected LRC’s challenge to the EIR; as it pertains to the growth inducing potential the court stated:
Agenda Item #5.1.
LRC also filed litigation regarding the 2006 Plan. That litigation proceeded to the California Court of Appeal which issued a ruling in January 2008 affirming the City’s actions.
To conform to the construction plans which are based upon the 2006 Plan, the flood project needs to acquire 3.69 acres of land from Dennis Hunter, a portion of APN No. 009-030-020 in order to construct maintenance roads, levees and public pathways for the flood project, in addition to easements for storm drains and water lines. A summary of the negotiations:
- The City’s October 2007 appraisal indicated that the fair market value of the Hunter property interests was $558,000/acre.
- At a meeting in the Fall of 2007, Hunter indicated that he would have appraisal support for $900,000/acre or more than $3.3 million for the necessary property interests. This was far greater than any amount the City could afford.
- The only alternative to reaching a negotiated settlement with Hunter was to pursue an eminent domain action, which would result in extensive attorney’s fees and costs, and not provide the fiscal certainty of a negotiated purchase. In addition, an eminent domain action would likely have delayed the project.
- The parties agreed to value the property above the floodplain at $700,000/acre and the property within the floodplain at $325,000/acre, so long as the City would also convey additional land from the former Miller parcel. These prices were based on the likelihood that a trial would result in a determination of land value between $900,000/acre and $558,000/acre. By utilizing the remnant of the former Miller parcel, the City is making an $899,500 cash payment. The calculation, as set forth in the Agreement, is as follows:
Purchase Price. The parties hereby acknowledge and agree that the fair market value of the 1.20 Acres [Hunter floodplain property] and the 3.58 Acres [former Miller floodplain property] is Three Hundred Twenty Five Thousand Dollars ($325,000) per acre and that the fair market value of the 2.39 Acres [Hunter non-floodplain property] is Seven Hundred Thousand Dollars ($700,000) per acre. Consequently, the agreed upon value of each property is as follows:
Agenda Item #5.1.
Property Value
3.58 Acres $1,163,500 (valued at $325,000 per acre)
1.20 Acres $390,000 (valued at $325,000 per acre)
2.39 Acres $1,673,000 (valued at $700,000 per acre)
Thus, the balance of the purchase price to be paid by the City at Closing shall be $899,500 [the value of the 1.20 acres and the 2.39 acres ($1,673,000 + $390,000) minus the credit received by the City for the 3.58 acres ($1,163,500)].
Throughout the process, the City consistently confirmed that any agreement would not constitute agreement to land use entitlements or promises to develop, development agreements, etc. The Agreement is simply a land exchange and purchase agreement – nothing more, nothing less. The Hunter property and the available portion of the former Miller parcel are already zoned for Medium Density Residential development, and the Agreement does not change that fact. The CEQA documentation discussed above noted:
Consistent with the City of St. Helena’s General Plan, removal of [the Hunter and Miller parcels] from the floodplain could facilitate the development of housing.
The City has planned on this growth and factored the potential for new housing units on this property into its General Plan. (RDEIR, pp. 4-23 to 4-25.) Under the [2004] Project, however, only about half of [the Miller parcel] would be used for relocated VVMHP homes. The remainder of [Miller] would be retained permanently as open space. (RDEIR, p. 5-16.)
In the Agreement, about half of what would have been redeveloped on Miller will now be added to open space, as only 3.58 acres has been reconfigured for acquisition of the necessary Hunter property . Further, no development on the portion exchanged will occur unless and until Hunter submits a development application consistent with any subdivision and zoning requirements applicable at the that time, including the requirement for compliance with any CEQA review.
Because the property boundaries change, a lot line adjustment was necessary in order to formalize the new property boundaries. If Hunter intends in the future to development, he must still apply for entitlements and the City retains all of its powers, whatever those may be, to approve, comment on, and/or reject Hunter’s development plans, including under CEQA. The Agreement does not affect the status quo or make it any easier for the land to develop. In fact, the ‘panhandle’ is smaller after the exchange than before the exchange, further complicating Hunter’s development of this area,
The City will also save considerable construction costs (several hundred thousands of dollars estimated) under the Agreement, which permits depositing usable dirt, excavated as part of the project, on the Hunter property, instead of having to deposit the dirt offsite. The deposit of dirt is in conformance with the 2006 Addendum.
FISCAL IMPACT:
The $899,500 cash payment will be funded by the State Revolving Fund Loan
Agenda Item #5.1.
ALTERNATIVES:
1. Reject the purchase sales agreement
2. Propose changes
3. Accept the purchase sales agreement
RECOMMENDED COUNCIL ACTION:
Approve attached purchase sales agreement under terms outlined in the agreement and authorize the City Manager to execute the agreement.
ATTACHMENTS/EXHIBITS:
1. Agreement of Purchase and Sale.
Agenda Item #5.1.
Agreement of Purchase and Sale By and
Between the City of St. Helena and Dennis Hunter
HELE\45969\734110.6
1 AGREEMENT OF PURCHASE AND SALE
THIS AGREEMENT OF PURCHASE AND SALE (“Agreement”) is made and entered into as of _______________, 2008 (the “Effective Date”), by and between the City of St. Helena (the “City”), and Dennis R. Hunter (“Hunter”).
RECITALS
A. Hunter owns that certain real property located in the City of St. Helena, State of California, consisting of approximately 3.69 acres, together with all appurtenant improvements, rights, interests, easements, tenements and estates, a portion of APN No. 009-030-020, more fully described on Exhibit A (the “Hunter Property”).
B. A portion of the Hunter Property, consisting of approximately 1.20 acres, as shown on Exhibit B, is located below the flood plain (the “1.20 Acres”). The remaining portion of the Hunter Property, consisting of approximately 2.39 acres as shown on Exhibit B, is located above the flood plain (the “2.39 Acres”). A .10 acre portion of the Hunter Property located below the floodplain is not shown on Exhibit B
C. The City owns that certain real property located in the City of St. Helena, State of California, consisting of approximately 3.58 acres located below the flood plain, together with all appurtenant improvements, rights, interests, easements, tenements and estates, as more fully described on Exhibit C (the “3.58 Acres”). The Hunter Property and the 3.58 Acres may be referred to individually as a “property” and collectively as the “properties.” D. The Hunter Property and the 3.58 Acres are designated in the City’s general plan as MR / Medium Density Residential 5.1 to 16 units per acre.
E. The City intends to use the 3.58 Acres for the advancement of the St. Helena Comprehensive Flood Control Protection Project (the “Project”) based on the City’s desire to acquire the Hunter Property from Hunter and Hunter’s desire to acquire the 3.58 Acres from the City, in accordance with the terms and conditions set forth in this Agreement.
F. In furtherance of the Project, the City has secured a loan from the State Revolving Fund of the State Water Resources Control Board, the terms of which require that the City request funds for property acquisition thirty to forty-five (30-45) days before the close of escrow on the purchase of such property.
NOW, THEREFORE, for and in consideration of the mutual covenants and agreements contained in this Agreement, and other good and valuable consideration, the receipt and adequacy of which is hereby acknowledged by the parties hereby agree as follows:
ARTICLE 1: LOT LINE ADJUSTMENT; EASEMENTS
1.1 Lot Line Adjustment. The City hereby covenants and agrees to promptly process and cause to be recorded at Closing (as defined below) the lot line adjustments required to Agenda Item #5.1.
Agreement of Purchase and Sale By and
Between the City of St. Helena and Dennis Hunter
HELE\45969\734110.6
2 establish the property configurations shown on Exhibit D. Following the Lot Line Adjustment, the City will own 15.691 acres and Hunter will own 16.903 acres.
1.2 Grant of Temporary Easement. For good and valuable consideration, Hunter hereby grants to the City an exclusive easement (the “Temporary Easement”) to use the Hunter Property prior to the Close of Escrow (as defined below) for the purposes set forth in the St.
Helena Comprehensive Flood Control Protection Project. The Temporary Easement herein granted shall commence upon the Effective Date and shall merge into the grant deed upon Hunter’s conveyance of the Hunter Property to the City.
1.3 Grant of Construction Easement. For good and valuable consideration, Hunter hereby grants to the City a temporary, non-exclusive easement (the “Construction Easement”), in accordance with the terms of that certain Construction Easement in the form attached hereto as Exhibit E, over, under, across, above and through that certain real property shown on Exhibit E hereto (the “Construction Easement Area”) for ingress and egress and for construction related purposes in connection with the Project. This Construction Easement is intended to be temporary in nature and shall terminate on December 31, 2012.
1.4 Grant of Utility Easement. For good and valuable consideration, Hunter hereby grants to the City a non-exclusive perpetual easement (the Utility Easement”), in accordance with the terms of that certain Utility Easement in the form attached hereto as Exhibit F, over under, across, above and through that certain real property shown on Exhibit F hereto (the “Utility Easement Area”) for the purposes of installing, constructing, operating, using, maintaining, repairing, and replacing utility facilities, lines or connections and any uses incidental thereto.
1.5 Depositing of Dirt. Hunter hereby grants to the City the right, at no additional cost to the City and at no cost to Hunter, to deposit dirt, excavated by the City in connection with the Project, on that certain real property (the “Fill Area”) described on the Soil Stockpile Grading Plan attached hereto as Exhibit G. City and its contractors and agents shall prepare the Fill Area to receive the dirt by removing vines and other vineyard improvements and place the fill in a good and workman-like manner.
1.6 Well Access License. Hunter hereby grants to the City a license at no additional cost to the City and at no cost to Hunter, to access and use water from the existing well shown on Exhibit G in connection with the Project. For good and valuable consideration, Hunter hereby grants to the City a temporary, non-exclusive license (the “Well Access License”) over, under, across, above and through properties to be owned by Hunter, including the 3.58 Acres. This Well Access License is intended to be temporary in nature and to continue only during the performance of the Project. The Well Access License shall terminate, without the necessity of further documentation, upon completion of the Project.
1.7 Drainage Improvements. The City intends as a part of the Project to build certain retention and drainage facilities as specifically described as follows:
Agenda Item #5.1.
Agreement of Purchase and Sale By and
Between the City of St. Helena and Dennis Hunter
HELE\45969\734110.6
3 (a) The City will construct a compacted earth fill pad on the remainder of APN No. 009-030-020 (“Hunter Remainder”) (exclusive of the Hunter Property) and on the
3.58 Acres in accordance with the enclosed Exhibit G. The source of the soil material to construct the pad shall be the City’s Flood Protection Project, with unsuitable material (defined as organic content in excess of 3.5%) segregated and placed in areas outside of the useable pad area shown on Exhibit G. Pad construction will comply with the notes on the exhibit and finish graded to provide positive drainage in accordance with Exhibit G. The level of the pad may vary based upon the amount of material generated from the Project with the elevation of the pad adjusted uniformly.
(b) Upon completion of the Project, the then existing drainage patterns for the Hunter Remainder and the 3.58 Acres shall remain undisturbed by the City, with exception of the new pad drainage. Drainage ditches on the pad will be routed to the new detention basin shown on Exhibit G. The City will modify its existing detention basin inlet from the storm drain system to provide a storm drain inlet for pad drainage.
(c) The City will size storm water drainage handling facilities downstream of the site, to be constructed as part of the Project, based upon projected build-out of the Hunter Remainder and the 3.58 Acres, as currently zoned Medium-density Residential (MR) (as defined in the St. Helena Municipal Code Section 17.40), expressed as a 70% impervious drainage watershed.
(d) The City agrees to reroute the existing water main crossing the Hunter Remainder in Easement 895 (OR 383 NCR), as shown on the enclosed Exhibit H. Relocation will be completed by the City prior to development of the Hunter Remainder and the 3.58 Acres.
The City’s easement for the section of pipe being abandoned will be quit-claimed and returned to Hunter once the relocation is complete.
1.8 Sewer Connection. Upon any application for development of the Hunter Property as referenced in this Agreement, City will not unreasonably withhold its permission for Hunter to cross City property to access a sewer connection. Nothing in this section shall be construed as an entitlement to development, and Hunter is responsible for obtaining all necessary development approvals from the City and any other agencies with jurisdiction over the Hunter Property.
1.9 Covenants Running with the Land. The terms and conditions contained in this Article 1 shall (a) constitute covenants running with the land, (b) survive the Close of Escrow, and (c) bind the parties hereto, their heirs, successors and assigns.
1.10 Payment of Taxes. All real property taxes and assessments on the Hunter Property (prior to Close of Escrow) and the Construction Easement Area shall be payable by Hunter.
ARTICLE 2: PURCHASE AND SALE
2.1 Hunter Property. The parties hereby acknowledge and agree that the City requires the Hunter Property in connection with the Project. Accordingly, the City has forced a sale of Agenda Item #5.1.
Agreement of Purchase and Sale By and
Between the City of St. Helena and Dennis Hunter
HELE\45969\734110.6
4 the Hunter Property by Hunter under the threat of condemnation, on the terms and conditions set forth herein.
2.2 3.58 Acres. As partial consideration for the sale of the Hunter Property pursuant to Section 2.1, above, the City hereby agrees to convey the 3.58 Acres to Hunter, on the terms and conditions set forth herein.
ARTICLE 3: PURCHASE PRICE
3.1 Purchase Price. The parties hereby acknowledge and agree that the fair market value of the 1.20 Acres and the 3.58 Acres is Three Hundred Twenty Five Thousand Dollars ($325,000) per acre and that the fair market value of the 2.39 Acres is Seven Hundred Thousand Dollars ($700,000) per acre. Consequently, the agreed upon value of each property is as follows:
Property Value
3.58 Acres $1,163,500 (valued at $325,000 per acre)
1.20 Acres $390,000 (valued at $325,000 per acre)
2.39 Acres $1,673,000 (valued at $700,000 per acre)
Thus, the balance of the purchase price to be paid by the City at Closing shall be $899,500 [the value of the 1.20 acres and the 2.39 acres ($1,673,000 + $390,000) minus the credit received by the City for the 3.58 acres ($1,163,500)].
ARTICLE 4: CLOSING
4.1 Closing. Hunter hereby covenants and agrees to cooperate with the City in connection with the City’s application for a loan from the State Revolving Fund of the State Water Resources Control Board and satisfying all requirements thereof. The consummation of the transactions contemplated herein (the “Closing” or “Close of Escrow”) shall occur on or before November 1, 2008 at the office of North Bay Title Co, Santa Rosa, California (“Escrow Agent”); provided, however, that the date for the Close of Escrow shall be subject to extension to the extent required by the State Revolving Fund. Upon satisfaction or completion of all closing conditions and deliveries, the parties shall direct Escrow Agent to immediately record and deliver the closing documents to the appropriate parties and make disbursements according to the closing statements executed by the City and Hunter.
4.2 Escrow Fee. Except as expressly provided herein to the contrary, the escrow fee, if any, charged by Escrow Agent, shall be paid in accordance with customary practices in Napa County.
4.3 Hunter’s Deliveries into Escrow. At least one (1) business day prior to the Closing Date, Hunter shall deliver to Escrow Agent for distribution to the appropriate party(ies) at Closing, the following:
Agenda Item #5.1.
Agreement of Purchase and Sale By and
Between the City of St. Helena and Dennis Hunter
HELE\45969\734110.6
5 (a) Grant Deed. A grant deed in conformity with the custom in the State of California, executed and acknowledged by Hunter, conveying to the City fee simple title to the Hunter Property.
(b) Prorations. Hunter’s share of any prorations or expenses. (c) Tax Certificates. A Foreign Investment in Real Property Tax Act affidavit and a California Form 593-C, executed by Hunter.
(d) State Law Disclosures. Such disclosures and reports as are required by applicable state and local law in connection with the conveyance of real property. (e) Additional Documents. Any additional documents that the City or the Escrow Agent may reasonably require for the proper consummation of the transactions contemplated by this Agreement.
4.4 The City’s Deliveries into Escrow. At least one (1) business day prior to the Closing Date, the City shall deliver to Escrow Agent for distribution to the appropriate party(ies) at Closing, the following:
(a) Purchase Price. The balance of the purchase price, if any, plus or minus applicable prorations and expenses.
(b) Grant Deed. A grant deed in conformity with the custom in the State of California, executed and acknowledged by the City, conveying to Hunter fee simple title to the
3.58 Acres.
(c) State Law Disclosures. Such disclosures and reports as are required by applicable state and local law in connection with the conveyance of real property. (d) Additional Documents. Any additional documents that Hunter or the Escrow Agent may reasonably require for the proper consummation of the transactions contemplated by this Agreement.
4.5 Closing Statements. At least one (1) business day prior to the Closing Date, Hunter and the City shall deposit with Escrow Agent executed closing statements consistent with this Agreement in the form required by Escrow Agent.
ARTICLE 5: PRORATIONS AND EXPENSES
5.1 Prorations.
(a) Taxes and Assessments. All non-delinquent real estate taxes and nondelinquent assessments on the properties shall be prorated as of 12:01 a.m. on the day of the Close of Escrow based on the actual current tax bill. All delinquent taxes and all delinquent assessments, interest and penalties (if any) with respect to a property, shall be paid at the Close of Escrow by the party conveying such property. If any information needed for the final Agenda Item #5.1.
Agreement of Purchase and Sale By and
Between the City of St. Helena and Dennis Hunter
HELE\45969\734110.6
6 proration of any item is not available as reasonably determined by Escrow Agent and the parties are notified of the same prior to Closing, the parties shall re-prorate such item after Closing and payment shall be made promptly to the party entitled thereto. The provisions of this Section
5.1(a) shall survive the Close of Escrow
(b) Sales, Transfer, and Documentary Taxes. The parties shall pay, in accordance with customary practices in Napa County, all sales, gross receipts, compensating, stamp, excise, documentary, transfer, deed or similar taxes and fees imposed in connection with the transactions contemplated hereunder.
5.2 No Brokers. Hunter and the City represent and warrant each to the other that they have not dealt with any real estate broker, sales person or finder in connection with this Agreement. In the event of any claim for broker’s or finder’s fees or commissions in connection with the negotiation, execution or consummation of this Agreement or the transactions contemplated hereby, each party shall indemnify and hold harmless the other party from and against any such claim based upon any statement, representation or agreement of such party.
ARTICLE 6: REPRESENTATIONS AND WARRANTIES
6.1 Hunter’s Representations and Warranties. Hunter represents and warrants to the City that:
(a) Conflicts and Pending Actions or Proceedings. There is no agreement to which Hunter is a party or, to Hunter ’s knowledge, binding on Hunter which is in conflict with this Agreement. There is no action or proceeding pending or, to Hunter’s knowledge, threatened against Hunter or relating to the Hunter Property which challenges or impairs Hunter’s ability to execute or perform its obligations under this Agreement. (b) No Encumbrances. Hunter has not alienated, encumbered, transferred, mortgaged, assigned, pledged, or otherwise conveyed its interest in the Hunter Property or any portion thereof, nor entered into any agreement to do so, and there are no liens, encumbrances, mortgages, covenants, conditions, reservations, restrictions, easements or other matters affecting the Hunter Property, except as disclosed in the preliminary title report delivered to the City.
Hunter shall not, directly or indirectly, alienate, encumber, transfer, mortgage, assign, pledge, or otherwise convey its interest prior to the Close of Escrow, as long as this Agreement is in force. (c) Contractors and Suppliers. All contractors, subcontractors, suppliers, architects, engineers, and others who have performed services or labor or have supplied materials in connection with Hunter’s acquisition, development, ownership, or management of the Hunter Property have been paid in full and all liens arising therefrom (or claims which with the passage of time or the giving of notice, or both, could mature into liens) have been satisfied and released.
6.2 City’s Representations and Warranties. The City represents and warrants to Hunter that the City has the full right, capacity, power and authority to enter into and carry out the terms of this Agreement. This Agreement has been duly executed by the City, and upon delivery to and execution by Hunter shall be a valid and binding agreement of the City.
Agenda Item #5.1.
Agreement of Purchase and Sale By and
Between the City of St. Helena and Dennis Hunter
HELE\45969\734110.6
7 6.3 Survival of Representations and Warranties. The representations and warranties set forth in this Article 6 are made as of the Effective Date and are remade as of the Closing Date and shall not be deemed to be merged into or waived by the instruments of Closing, but shall survive the Closing. Each party agrees to defend and indemnify the other against any claim, liability, damage or expense asserted against or suffered by such other party arising out of the breach or inaccuracy of any such representation or warranty.
ARTICLE 7: DEFAULT AND REMEDIES
7.1 Default. If the transactions contemplated hereunder fail to close as a result of a party’s default, the non-defaulting party shall be entitled to such remedies for breach of contract as may be available at law and/or in equity including, without limitation, the remedy of specific performance.
7.2 Notice of Default. Except for a party’s failure to close on the Closing Date, neither party shall have the right to declare a default by the other party and terminate this Agreement because of a failure by such other party to perform under the terms of this Agreement unless the other party shall fail to cure such failure to perform within ten (10) days after its receipt of written notice of such failure to perform.
7.3 Other Expenses. If this Agreement is terminated due to the default of a party, such defaulting party shall pay any fees due to Escrow Agent.
ARTICLE 8: DUE DILIGENCE; AS-IS; RELEASE
8.1 Due Diligence Investigation. Hunter acknowledges that it has had an opportunity to conduct its due diligence investigation of the 3.58 Acres, and hereby approves the condition and suitability of the 3.58 Acres for Hunter’s purposes. The City acknowledges that it has had an opportunity to conduct its due diligence investigation of the Hunter Property, and hereby approves the condition and suitability of the Hunter Property for the City’s purposes. The parties shall continue to operate and maintain their respective properties, prior to the Close of Escrow, in substantially the same manner that such were operated and maintained as of the Effective Date. (a) Hunter has reviewed a preliminary title report for the 3.58 Acres and approved all of the following exceptions to title: (a) standard printed exceptions in the preliminary title report; (b) general and special real property taxes and assessments constituting a lien not yet due and payable; and (c) the title exceptions listed on Exhibit I attached hereto. The City shall deliver title to the 3.58 Acres to Hunter at the Closing subject only to the foregoing approved exceptions.
(b) The City has reviewed a preliminary title report for the Hunter Property and approved all of the following exceptions to title: (a) standard printed exceptions in the preliminary title report; (b) general and special real property taxes and assessments constituting a lien not yet due and payable; and (c) the title exceptions listed on Exhibit J attached hereto.
Hunter shall deliver title to the Hunter Property to the City at the Closing subject only to the foregoing approved exceptions.
Agenda Item #5.1.
Agreement of Purchase and Sale By and
Between the City of St. Helena and Dennis Hunter
HELE\45969\734110.6
8 8.2 “As-Is” Sale. Each party hereby acknowledges and agrees that, neither the other party, nor anyone acting for or on behalf of such other party, has made any representations, warranties, or promises, concerning the condition of the properties or any other aspect of the properties. Each party further acknowledges that HE OR IT WILL BE ACQUIRING THE PROPERTIES, AS APPLICABLE, BASED UPON THEIR “AS-IS” CONDITION AND THEIR
STATE OF REPAIR INCLUSIVE OF ALL FAULTS AND DEFECTS, WHETHER KNOWN
OR UNKNOWN, AS MAY EXIST AS OF THE CLOSE OF ESCROW, AND EACH PARTY
EXPRESSLY ASSUMES THE RISK THAT ADVERSE PHYSICAL, ENVIRONMENTAL, FINANCIAL AND LEGAL CONDITIONS MAY NOT BE REVEALED BY SUCH PARTY’S DUE DILIGENCE INVESTIGATION (IF ANY).
8.3 Disclaimer. Except for a breach of this Agreement, each party hereby fully and forever waives and disclaims, all warranties of whatever type or kind with respect to the property acquired by him or it, whether express, implied or otherwise including, without limitation, those of fitness for a particular purpose, tenantability, habitability or use.
8.4 Release and Waiver. Each party hereby fully and forever releases, acquits and discharges the other party of and from, and hereby fully and forever waives any and all claims, actions, causes of action, suits, proceedings, demands, rights, damages, costs, expenses or other compensation whatsoever, whether known or unknown, direct or indirect, foreseeable or unforeseeable, absolute or contingent (“Claims”), that such party now has or may have or which may arise in the future arising out of, directly or indirectly, or in any way connected with the condition of the property acquired by him or it. The parties hereby agree that the matters released in this Section 8.4 are not limited to matters which are known or disclosed and, with respect to the foregoing release, each party hereby waives any and all rights and benefits which he or it now has, or in the future may have, conferred upon him or it, by virtue of the provisions of Section 1542 of the Civil Code of the State of California (or any other statute or common law principles of similar effect), which Section provides as follows:
A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS
WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT
TO EXIST IN HIS OR HER FAVOR AT THE TIME OF
EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM
OR HER MUST HAVE MATERIALLY AFFECTED HIS OR
HER SETTLEMENT WITH THE DEBTOR.
In this connection, each party acknowledges and agrees that it understands that factual matters relating directly to the properties now unknown to him or it may have given or may hereafter give rise to claims that are presently unknown, unanticipated and unsuspected, and such party further acknowledges and agrees that the releases herein have been negotiated and agreed upon in light of that realization and that it nevertheless intends to release, discharge and acquit the other party from any such unknown claims.
Hunter’s Initials: ___________ City’s Initials: ____________ Agenda Item #5.1.
Agreement of Purchase and Sale By and
Between the City of St. Helena and Dennis Hunter
HELE\45969\734110.6
9 8.5 Delivery of Title Policy. At Hunter’s request, the Title Company shall deliver to Hunter an owner’s policy of title insurance issued by the Title Company as of the Closing Date, insuring Hunter as owner of fee simple title to the 3.58 Acres. At the City’s request, the Title Company shall deliver to the City an owner’s policy of title insurance issued by the Title Company as of the Closing Date, insuring the City as owner of fee simple title to the Hunter Property. Notwithstanding the foregoing, the Title Company’s delivery or willingness to deliver the foregoing title policies shall not be a condition precedent to either party’s obligation to close hereunder. Each party shall pay the premium for their respective title policies.
ARTICLE 9: NOTICES
9.1 Notices. All notices required or permitted hereunder shall be in writing and shall be served on the parties at the addresses set forth below. Any such notices shall be either (a) sent by overnight delivery using a nationally recognized overnight courier, in which case notice shall be deemed delivered one business day after deposit with such courier, (b) sent by facsimile, in which case notice shall be deemed delivered upon transmission of such notice, or (c) sent by personal delivery, in which case notice shall be deemed delivered upon receipt. A party’s address may be changed by written notice to the other party; provided, however, that no notice of a change of address shall be effective until actual receipt of such notice. Copies of notices are for informational purposes only, and a failure to give or receive copies of any notice shall not be deemed a failure to give notice.
(a) If to Hunter:
Dennis R. Hunter
P. O. Box 9069
Santa Rosa, CA 95405
Telephone: (707)579-1007
Facsimile: (707) 527-6151
With a copy to:
Clement, Fitzpatrick & Kenworthy
3333 Mendocino Avenue, Suite 200
Santa Rosa, California 95403
Attn: Clayton E. Clement
Telephone: (707)523-1181
Facsimile: (707) 546-1360
(b) If to the City:
City of St. Helena
1480 Main Street
St. Helena, CA 94574
St. Helena, CA
Agenda Item #5.1.
Agreement of Purchase and Sale By and
Between the City of St. Helena and Dennis Hunter
HELE\45969\734110.6
10 Attn:City Manager
Telephone: (707) __________
Facsimile: (707) __________
With a copy to:
Miller Starr Regalia
Attn: Ethan Friedman
1331 North California Boulevard, Fifth Floor
Walnut Creek, CA 94596
Telephone: (925) 935-9400
Facsimile: (925) 933-4126
(c) If to Title Company or Escrow Agent:
Financial Title Company
______________
______________
Attn: ______________
Telephone: (___) __________
Facsimile: (___) __________
ARTICLE 10: MISCELLANEOUS
10.1 Parties Bound. This Agreement shall bind and shall inure to the benefit of the City, Hunter and their respective successors and assigns. Notwithstanding the foregoing, neither party may assign this Agreement without the prior written consent of the other, and any such prohibited assignment shall be void.
10.2 Headings. The article and paragraph headings of this Agreement are for convenience only and in no way limit or enlarge the scope or meaning of the language hereof.
10.3 Invalidity and Waiver. If any portion of this Agreement is held invalid or inoperative, then so far as is reasonable and possible the remainder of this Agreement shall be deemed valid and operative, and, to the greatest extent legally possible, effect shall be given to the intent manifested by the portion held invalid or inoperative. The failure by either party to enforce against the other any term or provision of this Agreement shall not be deemed to be a waiver of such party’s right to enforce against the other party the same or any other such term or provision in the future.
10.4 Governing Law. This Agreement shall, in all respects, be governed, construed, applied, and enforced in accordance with the law of the State of California.
10.5 Survival. The provisions of this Agreement that contemplate performance after the Closing and the obligations of the parties not fully performed at the Closing shall survive the Closing and shall not be deemed to be merged into or waived by the instruments of Closing.
Agenda Item #5.1.
Agreement of Purchase and Sale By and
Between the City of St. Helena and Dennis Hunter
HELE\45969\734110.6
11 10.6 No Third Party Beneficiary. This Agreement is not intended to give or confer any benefits, rights, privileges, claims, actions, or remedies to any person or entity as a third party beneficiary, decree, or otherwise.
10.7 Entirety and Amendments. This Agreement, together with all exhibits attached hereto and incorporated herein, embodies the entire agreement between the parties and supersede all prior agreements and understandings relating to the subject matter hereof. This Agreement may be amended or supplemented only by an instrument in writing executed by the party against whom enforcement is sought.
10.8 Time. Time is of the essence in the performance of this Agreement.
10.9 Attorneys’ Fees. Should either party employ attorneys to enforce any of the provisions hereof, the party against whom any final judgment is entered agrees to pay the prevailing party all reasonable costs, charges, and expenses, including reasonable attorneys’ fees, expended or incurred in connection therewith.
10.10 Construction. The parties acknowledge that the parties and their counsel have reviewed and revised this Agreement and agree that the normal rule of construction to the effect that any ambiguities are to be resolved against the drafting party shall not be employed in the interpretation of this Agreement or any exhibits or amendments hereto.
10.11 Calculation of Time Periods. Unless otherwise specified, in computing any period of time described herein, the day of the act or event after which the designated period of time begins to run is not to be included and the last day of the period so computed is to be included at, unless such last day is a Saturday, Sunday or legal holiday for national banks in the location where the properties are located, in which event the period shall run until the end of the next day which is neither a Saturday, Sunday, or legal holiday. The last day of any period of time described herein shall be deemed to end at 5:00 p.m. Pacific time.
10.12 Further Assurances. In addition to the acts and deeds recited herein and contemplated to be performed, executed and/or delivered by either party at Closing, each party agrees to perform, execute and deliver, but without any obligation to incur any additional liability or expense, on or after the Closing any further deliveries and assurances as may be reasonably necessary to consummate the transactions contemplated hereby or to further perfect the conveyance, transfer and assignment of the properties hereunder.
10.13 Execution in Counterparts. This Agreement may be executed in any number of counterparts, each of which shall be deemed to be an original, and all of such counterparts shall constitute one Agreement. To facilitate execution of this Agreement, the parties may execute and exchange by email or facsimile counterparts of the signature pages.
Agenda Item #5.1.
Agreement of Purchase and Sale By and
Between the City of St. Helena and Dennis Hunter
HELE\45969\734110.6
12 IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the Effective Date.
_____________________ CITY OF ST. HELENA
Dennis R. Hunter
By: _____________________
Name: Bert Johansson
Title: City Manager
Approved as to form:
______________________________
Amy L. Valukevich, City Attorney
Agenda Item #5.1.
Agenda Item #5.1.
Agenda Item #5.1.
Agenda Item #5.1.
Agenda Item #5.1.
Agenda Item #5.1.
ATTACHMENT B
Agenda Item #5.1.
Agenda Item #5.1.
Agenda Item #5.1.
Agenda Item #5.1.
Agenda Item #5.1.
FROM THE DESK OF
Maria Villegas
April 25, 2023
Paul Dohring, Mayor
Eric Hall, Vice-Mayor
Lester Hardy, Councilman
Anna Chouteau, Councilwoman
Billy Summers, Councilman
Maya DeRosa, Building and Planning Director
Anil Camelo, City Manager
City of St. Helena
Dear City Council Members,
I am writing to bring to your attention a group of St. Helena residents who have been completely neglected. The Hispanic community has not had the opportunity to receive any information in writing regarding any impacts which would directly affect their safety.
As you are aware, the Hunts Grove apartments have a large number of residents who are Spanish speaking, and they will be directly impacted by the proposed Hunter Project.
In a letter dated April 7, 2023, from the Department of Housing and Community Development, Division of Housing Policy Development, states “During the housing element revision process, the City must continue to engage the community, including organizations that represent lower-incomed, special needs households, by making information regularly available while considering and
incorporating comments where appropriate.”
For this reason, I ask the City Council allow an extension of the EIR in order to interpret the EIR into Spanish. I would also ask City Council to engage the Hispanic community and all those listed above.
Agenda Item #5.1.
The extension time would be the sixty days as given for the DEIR.
However this depends on how long it would take to get the document interpreted and available for public review.
Respectfully,
Maria Villegas
1166 MEADOWCREEK CIRCLE, ST. HELENA, CA 94574
Agenda Item #5.1.
FROM THE DESK OF
Maria Villegas
April 27, 2023
Paul Dohring, Mayor
Eric Hall, Vice Mayor
Lester Hardy, Councilman
Anna Chouteau, Councilwoman
Billy Summers, Councilman
Maya DeRosa, Building and Planning Director
Anil Camelo, City Manager
City of St. Helena
1088 College Avenue
St. Helena, Ca 94574
Dear City Council,
I would like to bring to your attention the Napa County Flood Protection Sales Tax Ordinance also known as Measure A (Revenue and Taxation Code Section 7285.5). “The transactions and use tax provisions of this Ordinance shall be applicable in the incorporated and unincorporated territory of the County of Napa.”
Measure A-Section 2. Findings
I. The ultimate goal of the Plan is to provide flood protection, save lives, protect property, restore the Napa River, Napa Creek and other tributaries, maintain Napa County’s economic vitality, and enhance riparian environments.
Furthermore, in a letter dated July 12, 2005, Office of the District Engineer , Napa County Flood Control and Water Conservation Project Re: Adams Alignment Levee states:
“…the question has been raised as to whether the levee is in fact intended to support a road rather than simply provide flood protection.
The levee element serves two functions in the Project, (1) provide a Agenda Item #5.1.
barrier against inundation, and (2) provide an onsite location for disposition of soils to be removed from the planned terraces. The levee is wider than what would be necessary if only inundation-prevention were the objective. The levee is wider in order to accommodate the disposition of soils to be removed from the terraces.”
In a Press Release on April 21, 2023, the question “Will the Hunter project affect emergency evacuation? Answer: The St. Helena Police Department, which conducts annual practice evacuations in the Vineyard Valley area, does not find that the Hunter project will make evacuations more difficult.”
The evacuation drills include Vineyard Valley residents use the top of the levee as an evacuation route. Measure A clearly states the levee has two functions, as a barrier against inundation and onsite location for disposition of soils. Therefore, this decreases the number of evacuation routes. Measure A requirements have been excluded from the analysis for evacuation routes.
Lastly, Measure A states, “Section 2. Findings G. None of the projects in the Plan are intended or designed to encourage population growth in Napa County. All of the projects are for flood protection, preserving ground water integrity, reducing sediment in the Spa River system, and for maintaining the reliability of the water supply for the existing Napa County populations of the effective date of this Ordinance.” Given the the project uses the 1993 General Plan, this Ordinance should be considered valid and upheld.
I urge the City Council to request analysis which would include Measure A requirements. I request the FEIR be rejected as written and returned to the Planning Commissioners for further evaluation.
Respectfully,
Maria Villegas, Chairperson
St. Helena Citizens for a Sustainable Future
1166 MEADOWCREEK CIRCLE, ST. HELENA, CA 94574
Agenda Item #5.1.
From: James Wickesberg
To: Public Comment
Subject: [External] Hunter Development
Date: Monday, May 1, 2023 10:45:33 AM
To the City Council:
I urge the council to vote NO on the Hunter project. Among other things, the informational video for the development claims that it would not impact traffic congestion or water usage. This is completely unbelievable for anyone who drives or pays for water in the city of St Helena. (The flood zone issues may be debatable, but they are not non-existent.) I fear that the lure of income for the city may make it difficult for council members to see beyond the developer’s efforts to promote the project rather than acknowledge the unpleasant impact of a development of this nature.
Agenda Item #5.1.
JOSHUA S. DEVORE
[email protected]
April 30, 2023
Via Email:
Mayor Paul Dohring, [email protected]
Vice Mayor Eric Hall, [email protected]
Council Member Anna Chouteau, [email protected] Council Member Lester Hardy, [email protected]
Council Member Billy Summers, [email protected] City Manager Anil Comelo, [email protected]
Community Development Director Maya DeRosa, [email protected] RE: Hunter Subdivision Project Environmental Impact Report. 2022-001, File #PL10-040 Dear Mayor Dohring, Vice Mayor Hall, Council Members, City Manager Comelo, Community Development Director DeRosa:
As you are aware, we represent the Saint Helena Citizens for a Sustainable Future, a diverse group of City residents. We have provided several letters on this project to the Planning Commission on this project, highlighting several of the procedural and substantive deficiencies in the application process and consideration. (Those letters are included in your Agenda packet for the May 1 meeting, along with Staff’s responses, and we encourage you to review those letters in chronological order for context. We have not set out again every point in those letters for sake of brevity; although due to the importance of the issues, some of that information is restated and emphasized below.)
The Planning Commission nevertheless – reluctantly as can be seen in the video of the hearing – passed the project on to the City Council. The Planning Commission appeared severely cowered by pressure to approve housing. Its referral to the City Council is thus not in any way persuasive that the Environmental Impact Report warrants certification, nor the underlying tentative map.
A separate letter addresses the serious procedural and substantive issues with the tentative map itself and the Project generally failing to comply with the applicable General Plan and municipal code.
Review of the record shows the Planning Commission made the recommendation of approval on the notion the State is forcing it to approve housing. This violates CEQA. The decision to certify the EIR and approve the Project must only be made by the City because the City independently Agenda Item #5.1.
April 30, 2023
believes it is complete and appropriate.1 The Housing Accountability Act clearly states that it does not overrule CEQA.2 The Council must make and take sole responsibility for its actions in exercising its judgment under CEQA and to the Project as a whole.
Prior correspondence to the Planning Commission highlighted the defects in the EIR. An attachment to the Staff Report for the February 7, 2023, Planning Commission meeting attempted to respond to those comments. Failing to do so credibly, Staff has tried again, with an additional response included as Attachment 28 to the Agenda Packet.
As discussed below, that response contradicts the EIR itself.3 It misunderstands the impact and direction of the changed Napa Valley Subbasin management policies set by Napa County. It displays an ignorance of the City and the way people live, work, and go to school here that is disheartening. And it either does not know what a firebreak is, or forgets the existing vineyards protecting the Monte Vista neighborhood, and in turn the rest of the City, that will be removed.
Certification of a final EIR requires this Council to exercise its own independent judgment and analysis.4 The Council should exercise that judgment to reject certification.
Required Findings
As discussed in our accompanying letter, the Project does not comply with the applicable general plan or zoning code. But even if it did, the subdivision Project must still be denied, as the Council can and must make the following findings:
1. The housing development project would have a specific, adverse impact upon the public health or safety unless the project is disapproved or approved upon the condition that the project be developed at a lower density.
2. There is no feasible method to satisfactorily mitigate or avoid the adverse impact identified other than disapproval of the housing development project or approval upon condition that the project be developed at a lower density. 1 P.R.C. § 21082.1(c)(3) (“As part of the … certification of an environmental impact report, find that the report or declaration reflects the independent judgment of the lead agency.”) 2 Gov. C. § 65589.5(e) (“Neither shall anything in this section be construed to relieve the local agency from making one or more of the findings required pursuant to Section 21081 of the Public Resources Code or otherwise complying with the California Environmental Quality Act (Division 13 (commencing with Section 21000) of the Public Resources Code).”
3 We note that the “Final” Final EIR, which was presented to the Planning Commission on February 7, 2023, was not posted on the City’s website in violation of P.R.C. 21082.1(d). Only an earlier October 2022 version of the document was posted.
4 P.R.C. § 21082.1(c)(3); CEQA Guideline 15090(a)(3).
Agenda Item #5.1.
April 30, 2023
(SHMC § 16.16.080(B).) For the following reasons, there is substantial evidence in the record that the Project presents adverse impacts to public health and safety which have not or cannot be mitigated.
By contrast, in order to Certify the EIR, the Council would need to find, in the exercise of its independent judgment, that “[c]hanges or alterations have been required in, or incorporated into, the project which mitigate or avoid the significant effects on the environment.”5 Where significant impacts on the environment are identified, as here, the Council would also need to find “that specific overriding economic, legal, social, technological, or other benefits of the project outweigh the significant effects on the environment.”6 Those findings must be based on substantial evidence in the record.7 As discussed further below, this standard for adoption of a statement of overriding considerations cannot be made on the current record.
The EIR Fails to Adequately Analyze Groundwater Impacts as the Proposed Well Use on the Property Is Contrary to Current Standards
As discussed in our prior letters but discussed further here in light of Staff’s latest attempted response, 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 per year to provide for all on-site irrigation of public and private landscaping, as well as a small remnant of an existing vineyard.8 Not only the Draft, but the Final EIR recognized the well on the property was not in use and described it repeatedly as “inoperable.” (E.g., DEIR at 3.9-43 (“the well is currently inoperable and would need to be repaired so it is operational.”); 3.13-1 (well “has been used historically to supply irrigation water to the site but is currently inoperable”; 3.9-15; 3.13-2; 3.13-32. The FEIR fixed typographical errors in the text of 3.13-2, but still states the well is not currently in operation.) The Phase I Environmental Site Assessment performed in March 2018 also says the well is inoperable.
Somewhat incredibly, Staff’s latest response in Attachment 28 on this issue is to directly contradict the EIR as to the “inoperable” well, and now claim that the well is operable after all. It attempts to drastically revise the CEQA baseline for the Project in an attachment to the Staff report that has not been circulated for public comment. Despite Staff’s eleventh-hour efforts, substantial evidence in the record states that there is no operating well on the property, and it has not been operating for a considerable period of time. The use of the well had been long abandoned. The required baseline of “existing” water use on the parcel is zero.9 5 P.R.C. § 21081(a)(1); see also CEQA Guideline 15091.
6 P.R.C. § 21081(b); see also CEQA Guideline 15093.
7 P.R.C. § 21081.5.
8 DEIR 3.9-40.
9 See Napa County Water Availability Analysis, May 12, 2015 (discussing throughout analysis of “existing” and “current” water usage compared to a proposed project.) Agenda Item #5.1.
April 30, 2023
DEIR Appendix L, a September 9, 2021, Well Capacity Study Memorandum emphasizes that “it is recommended that the annual groundwater use conform with County policy.” While phrased as a suggestion by the consultant, this is indeed a legal requirement. The City has always deferred well issues to the County because the City does not have its own department to handle such issues.10
Disturbingly, DEIR Appendix L was omitted from the February 2023 Staff Report to the Planning Commission (which we noted at the time), and it has now been withheld from the City Council as well despite it being a critical subject. Appendix L was prepared under the prior standard of a maximum allocation of 1 acre-foot of water per acre. It found the Project already not in compliance with that standard. Given this repeated identified issue, we can only conclude the Applicant does not like its conclusion that the Project’s groundwater use must follow County policy and the use is not consistent with that policy, and thus had it removed it from the EIR and the Council’s materials.
No update of that analysis has been prepared to comply with the revised substantially reduced allocation limit of the lesser of 0.3 ac-ft/ac or no-net-increase, though the outcome is obvious:
the proposed project substantially exceeds the allowed groundwater allocation. The expert that prepared the Well Capacity Study has not opined on Staff’s latest response attempting to undo the record.
Seemingly belatedly realizing that the well usage is indeed a significant barrier to the Project, Staff, on behalf of the applicant, has now attempted to estimate a historical use of the well.
There is no evidence, factual or legal, that the no-net-increase calculation can be properly divined from a hypothetical long-abandoned previous use. Staff’s response, which is not attested to by a groundwater expert, attempts to reverse engineer a hypothetical past use that does not exist, of which there are no documented records, and which the EIR does not analyze. This is not competent, substantial evidence on which the Council can rely in certifying the EIR. (Indeed, it is not even referenced in the EIR, as it was just invented.) While historical use may in some cases be considered for baseline analysis (but only where the conditions have been in flux making the existing conditions not emblematic), there must be substantial evidence to support that baseline.11 “An existing conditions baseline shall not include hypothetical conditions….”12 To 10 As such, Napa County would appear to be a Responsible Agency for the project’s groundwater usage.
However, the EIR fails to identify Napa County as a Responsible Agency. 11 Contra CEQA Guideline 15125(a)(1) (“Generally, the lead agency should describe physical environmental conditions as they exist at the time the notice of preparation is published, or if no notice of preparation is published, at the time environmental analysis is commenced, from both a local and regional perspective.
Where existing conditions change or fluctuate over time, and where necessary to provide the most accurate picture practically possible of the project's impacts, a lead agency may define existing conditions by referencing historic conditions, or conditions expected when the project becomes operational, or both, that are supported with substantial evidence.”)
12 CEQA Guideline 15125(a)(3) (emphasis added).
Agenda Item #5.1.
April 30, 2023
the extent Staff is now contending a different baseline should have been used, the EIR needs to be revised and recirculated.
In doing this, Staff brazenly accuses our prior comment of misunderstanding the County’s unambiguous policy of limiting the use of wells subject to discretionary project approval to the lesser of 0.3 acre-feet per acre or no net increase. That “no net increase” is from “existing” uses.13 This is readily apparent from the County’s simple summaries of the new policy, and a published FAQ.
The limitation to the lesser of ‘0.3 ac-ft/ac or no net increase’ applies to new discretionary uses of existing wells. A “Tier 1” analysis must be performed to document the “existing” uses on site and the potential increases. From the Napa County FAQ on the new well standards14:
10. Do the new standards apply to discretionary projects where projects rely on existing wells?
Yes, if the project involves an increase in groundwater use on the existing wells. …
14. Does the 0.3 AF/acre water use limitation also apply to new or modified discretionary permits?
Yes. The WAA Guidelines will be updated to reflect this, but this limit goes into effect immediately.
As stated by Napa County, its “new regulatory requirements for a Tier 1 analysis are pursuant to CEQA, Napa County's Water Availability Analysis (WAA) Guidelines, dated May 12, 2015, Napa County's Drought Emergency, Governor's Executive Order N-7-22, recent court decisions, and pending State litigation.”15
These rules are clear. These rules are dictated by State law. They are not optional. Ignoring the County’s requirements as dictated by State law, including CEQA and SGMA, and indeed the DEIR’s own expert, would be an abuse of discretion.
13 https://www.countyofnapa.org/DocumentCenter/View/25905/Well-Permit-Standards-and-WAARequirements--January-6-2023?bidId= 14 (See Napa County Well Permit Standards FAQ, available at https://www.countyofnapa.org/DocumentCenter/View/25906/Well-Permit-Standards-FAQs---15-July2022.) 15 https://www.countyofnapa.org/DocumentCenter/View/25905/Well-Permit-Standards-and-WAARequirements--January-6-2023?bidId= Agenda Item #5.1.
April 30, 2023
The project needs to be revised to comply with the current water use limitations, and the EIR must be corrected and recirculated considering the changes in groundwater policy that are unanalyzed.16
Further, as we noted previously, significant new information has been made available which contradicts the EIR’s conclusions regarding the state of local groundwater. 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.”17 Although the proposed findings for the Project have been slightly modified since we noted this critical information, the EIR’s simply ignoring the evidence of an increase in the severity of the project’s impacts on groundwater resources is not reasonable.
As we said previously, the project needs to come up with at least an additional 12 acre-feet of water from somewhere else. It cannot do so from the well. The latest response does not change this fact. It does appear Staff, in consultation with the Applicant but not the public, have recognized this is a major problem; but are unwilling to address it directly. Staff have revised one of the conditions for the project: Proposed Condition of Approval 85 now suggests that the well should nevertheless be used for the project in violation of County policy, but then abandoned “if” the contemplated City reclaimed water system ever reaches the site. This is inconsistent with the law and, in any event, unreasonable.
The EIR Fails to Conduct the Required Well Interference Analysis Further, and relatedly, the water neutrality analysis credits the more-than-17 acre-feet of water use from the well to “groundwater” as opposed to the City’s water. By doing so it is purportedly not subject to the City’s water neutrality ordinance. But this ignores the fact that the project site well is likely drawing from the same basin that supplies the City’s wells. While Staff’s latest response in Attachment 28 argues that some of the City’s drinking water comes from other reservoirs, it has no actual response to the fact that the Project well will extract groundwater very close to the City’s Stonebridge well, and thus is simply taking the City’s water via other means.
There is no analysis of well interference which would suggest that the onsite well is a different source of water than the City’s wells. This is despite the City’s September 27, 2018 Second Notice of Identified Issues Letter specifically requiring a well interference analysis. 18 Thus, the EIR
16 Note also that, because the well is proposed solely as non-potable water for outdoor irrigation and other nonconsumption uses, the well is not a public water system that might otherwise be entitled to exceed this limit. 17 (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=.) 18 Available at: https://www.cityofsthelena.org/sites/default/files/fileattachments/planning_resources/ project/3486/second_issues_letter-final.doc.pdf
Agenda Item #5.1.
April 30, 2023
should have analyzed well interference. Having failed to do so, the well usage should have been included in the water neutrality analysis and required offset.
As discussed above, the failures to address significant new information regarding changes to County groundwater policy driven by State law and the depletion of groundwater locally is directly related to the severity of the project’s impact on groundwater resources and requires additional analysis. The EIR failed to analyze well interference, an issue that was specifically identified as a potential significant impact. The EIR cannot be certified until these real and significant issues are addressed. Depletion of groundwater above allowed limits from the City’s groundwater source presents an adverse impact to public health and safety that has not been properly analyzed or mitigated.
The EIR’s Water Neutral Analysis Is Outdated and Deficient Relying on the well for exterior water use and excluding it from its calculations, the EIR fancifully suggests that the Project will be water neutral, despite its demand for nearly 20 acre-feet (approximately 6.5 million gallons) per year beyond that produced by the onsite well. However, this conclusion is drawn from an analysis of potential water offsets from several years prior to the recent drought, the Phase I and Phase II water emergencies, and the substantial cutbacks that were made by residents of the City in response. Those measures greatly reduced water usage already, and there has been no update to the potential water offset analysis in several years, rendering it meaningless. As such, the Water Neutral Report, DEIR Appendix J, is fatally deficient and must be updated to account for current conditions. It relies on an analysis of potential water saving measures from February 2017.19 There has been no consideration of the substantial changes in the last six years. Substantial new information has emerged since that time that has not been incorporated, including the responses to the drought and water emergency.
At the very least, the EIR cannot be certified until Appendix J is updated, as there is no reliable evidence to conclude the water neutrality requirements can be met.
We also note the Applicant has recently requested revision of the Project’s conditions of approval to allow for piecemeal compliance with the water neutrality ordinance. That request should be rejected. Given the scope of the offsets required, the Applicant will need to undertake a major water offset project prior to construction, and any such project must be considered in coordination with the development Project as a whole. It cannot be allowed to attempt to offset one house at a time.
The EIR Fails to Analyze or Mitigate Traffic and GHG Impacts The Project’s impacts on vehicles and traffic have of course been a major issue of contention. As the Staff report notes, the Project came to halt nearly a decade ago because improvements were 19 DEIR Appx. J at Attachment 3, Municipal Water Saving Measures (Feb. 2017).
Agenda Item #5.1.
April 30, 2023
needed to the Silverado Trail/Pope Street intersection. The Applicant has now tried to move forward ignoring those necessary improvements.
More recently, the Applicant’s counsel itself and numerous commenters opposed to the project have stated that the traffic analysis for the project is deficient. While the sides obviously offer different reasons and seek opposing results, it does appear that no one thinks the traffic analysis done here has been sufficient.
As we noted previously, there is 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 under CEQA, the only traffic study provided focuses on the latter.
Yet the EIR completely fails to thoroughly analyze or mitigate VMT. The DEIR’s analysis uses an Affordable Housing percentage of 28.73%, whereas as of the current application, there is officially none. Staff’s latest attempted response is that there must be some affordable housing in order to comply with the City’s code, but no one can say exactly how much because no one knows, as the required information has not been submitted.
The EIR, apparently without 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.20 No analysis, however, was conducted; the only traffic study that was prepared on behalf of the Applicant generally indicated that the Project should be required to make improvements to the road network.
Staff’s response to this issue is essentially that it sounds expensive and complicated, so there is no reason to look into it. That is not a reasonable response: this is a major development. It will likely cost a hundred million dollars to construct. It will generate well more than that in sales for the developer. That a necessary available on-site mitigation is ignored and unanalyzed because it might cost a small percentage of that is not reasonable.
In short, there is 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. The operative traffic study identified that road improvements were necessary mitigation. The Project was tabled for nearly a decade for this reason.
The Traffic Study (DEIR Exhibit K) – which the EIR appears to suggest now applies to analysis of the general plan rather than CEQA – repeatedly fails to use reasonable assumptions for the 20 DEIR 3.14-19.
Agenda Item #5.1.
April 30, 2023
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 EIR’s Greenhouse Gas analysis does depend on the traffic study. (DEIR 3.7-27.) 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. Idling vehicles are a substantial contributor to GHG emissions.21 The EIR fails to analyze the significant impact of idling vehicles resulting from the Project sitting in the unmitigated traffic it will create.
Among other issues with the traffic study, the 11 Accessory Dwelling Units, which are touted as providing additional workforce housing, are allocated only 4 AM Peak Hour outbound trips. This makes no objective sense. Reasonable assumptions would suggest the affordable and multifamily units to lead to more trips for the residents of those units given the nature of the local workforce. Staff indicates that standard assumptions were used for these estimates, but there is nothing standard about work-force life in Napa Valley. There is no subway to walk to. Jobs are widely distributed and require driving for essentially all workers. Project-specific analysis is required where general assumptions are known to be inapplicable. The traffic study thus 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.) Staff’s latest response in Attachment 28 is to reveal its ignorance of St. Helena: its response is to “assume this comment refers to students attending St. Helena Elementary School on Adams Street” and to acknowledge the estimate of seven (7) students attending just that school (already belying the traffic study).
But anyone that actually lived here would know that all four of our public schools are on the west side of town. Getting to all of them from the Project would involve crossing or accessing Main Street, which is most likely to occur at Adams. Staff’s suggestion that parents could choose other routes that are already known to be worse, such as Hunt Avenue or Pope Street, does not bolster the traffic analysis. Indeed, the Project is shown to have a material adverse impact on Pope/Main already.
Even worse, the existing analysis ignores the significant impact that the Project would have on evacuation routes in the event of an emergency. While for an individual scale event, it is possible that connection of Adams to Starr would be beneficial as the EIR and Staff suggests, that is not 21 See, e.g., U.S. Dept. of Energy, Idling Reduction for Personal Vehicles, available at https://afdc.energy.gov/files/u/publication/idling_personal_vehicles.pdf.
Agenda Item #5.1.
April 30, 2023
supported by substantial evidence for the case of a large-scale event. The City remains bottlenecked, particularly at Pope/Silverado.
As we discussed previously, the traffic study shows a nearly-quarter mile backup at the Pope Street bridge by 2040. The report admits “the project would be inconsistent with the City’s LOS policies at the Silverado Trail/Pope Street intersection.” 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.
The Traffic Report includes several required mitigation measures and improvements that are recommended to address traffic issues, yet none have been incorporated into the project. While the latest Staff response baldly suggests that the applicant cannot be required to construct these improvements individually, it does not conduct any analysis to reach that conclusion. Rather, the necessary improvements – especially connection of Adams to Silverado Trail, meet the Nollan/Dolan essential nexus and rough proportionality tests given that the improvement is necessarily located on, and immediately adjacent to, a very large-scale project.22 And again, the Silverado Trail/Pope improvements were previously identified as necessary for the Project as well, which is why it languished. By failing to address these necessary issues, 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, the law requires that a finding be made that the impact is unavoidable and that changes or alterations have been included to mitigate or avoid the significant impacts.23 That finding must be based on substantial evidence in the record.24 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 travelled (VMT), allowing project traffic direct access to a major thoroughfare without the additional distance travelled 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. 22 Nollan v. Cal. Coastal Comm. (1987) 483 U.S. 825; Dolan v. City of Tigard (1994) 512 U.S. 374. 23 P.R.C. § 21081.
24 CEQA Guideline 15093.
Agenda Item #5.1.
April 30, 2023
The EIR Fails to Analyze or Mitigate Impacts to Public Safety These failings to mitigate the Project’s impacts on the road network underscore the EIR’s 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 acknowledgement that the property currently serves as critical firebreak for the rest of the City.
Incredibly, Staff’s latest response suggests that the Project site does not meet the definition of a firebreak. Staff apparently forgets the existing vineyard on the property – vineyards are widely recognized as acting as crucial firebreaks.25
The Board of Forestry’s recently adopted 2021 State Fire Regulations emphasize the need to preserve and implement firebreaks in projects.26 The EIR and proposed findings repeatedly ignore the Project’s location near the SRA Very High Fire Hazard Severity Zone. Although the EIR Thresholds in the proposed Findings repeatedly state the issue of concern to be whether a project is “in or near state responsibility areas or lands classified as very high fire hazard severity zones” (VHFHSZ), the findings of less-than-significant impacts and related explanations repeatedly state only that the Project is not “in” the VHFHSZ.
Although the proposed findings say on page 63 that the Project is not near a SRA or VHFHSZ, that is obviously incorrect, making the entirety of the EIR’s wildfire analysis unreliable and contrary to evidence. The Project is immediately adjacent to the VHFHSZ:
25 See, e.g., https://www.northbaybiz.com/2018/06/28/vineyards-as-firebreaks/ 26 The project is not technically subject to CAL FIRE’s jurisdiction, but the agency’s emphasis on firebreaks is highly instructive and persuasive. Failure to adhere to State Fire Regulations that did not technically apply, and the naïve belief that urban development was immune to wildland fires, led to the destruction of Coffey Park in the 2017 Tubbs Fire. (Despite clear risks, Santa Rosa neighborhood that burned down was exempt from state fire regulation, LOS ANGELES TIMES (Oct. 15, 2017), available at: https://www.latimes.com/local/lanow/la-me-ln-coffey-park-explainer20171011-story.html.) Agenda Item #5.1.
April 30, 2023
(CAL FIRE State Responsibility Area Fire Hazard Severity Zone Map.)27 The failure to analyze the Project as “near” the SRA/VHFHSZ is a critical shortfall. Again, this property actually burned in the Glass Fire.
Removing the Project’s critical firebreak of six acres of vineyard is a wildfire impact that is not even acknowledged, let alone analyzed and mitigated. Removing the protective vineyard and expanding development at the Wildland-Urban Interface presents a clear and present danger to the current residents of the entire City. At a minimum, the Project must be revised and conditioned to retain a firebreak between the new development and existing development by leaving the existing vineyard intact.
The 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.28 The Project lacks safe emergency access and egress and would worsen existing emergency evacuation times for residents of the City. The Project creates specific threats to public safety by failing to mitigate its everyday traffic impacts and ignoring the potential for loss 27 See https://osfm.fire.ca.gov/fire-hazard-severity-zones-maps-2022/. 28 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 #5.1.
April 30, 2023
of life and property that could occur as a result of the increased traffic on already overburden public roads during a wildfire.
Meanwhile, the Project will obstruct emergency access for existing residents, particularly those in Vineyard Valley. There is no evidence that the levee maintenance road is a suitable evacuation road for the Project. It does not meet the City’s Fire Department Access Road Standards, which requires a 30-foot paved road with two feet of shoulders.29, 30 The second access to Lot 52 also
fails to meet this standard. (Relatedly, it is also unclear how the proposed terminus of Adams Street actually fits in the indicated location, which appears to require grading of the current western end of the levee.)
To the extent the levee maintenance road is a planned emergency access route for the Project, it must be improved to meet the City’s Fire Access Road standards as part of the Project.31 In turn, the environmental impacts thereof must be identified and examined in a revised EIR.
There is no evidence that the contemplated additional emergency access point onto the levee can be technically or legally constructed, particularly in light of the required conservation easements and numerous permit issues related to the flood control project, including the Incidental Take Permit under the Endangered Species Act.
The potential construction of housing behind a levee that appears to be substandard and poorly maintained is a significant threat to public safety that has been repeatedly downplayed by the Applicant and Staff, and requires rejection of this Project as currently proposed. 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.
The current reemergence of Tulare Lake, inundating 100 square miles of homes and farms, is a prescient reminder that water finds a way to get to the lowest point, despite humans’ efforts to defy gravity.32 As the Project presents a real threat to the safety of the public, it should be rejected irrespective of any other considerations -- whether or not it technically complies with 29 See City of St. Helena Street, Storm Drain & Sidewalk Standards, available at https://www.cityofsthelena.org/sites/default/files/fileattachments/public_works/page/2491/publicworkscitystand ards_0.pdf
30 We also note the levee maintenance road does not even meet the lesser Road and Street Standards dictated by Napa County or CAL FIRE for safe evacuation from a property with more than four residences of a paved 20’ road with 2’ shoulders. See Napa County Road and Street Standards, 2023, available at:
https://napa.legistar.com/View.ashx?M=F&ID=11891814&GUID=307CAE5E-C950-4706-9300-255BFD6D91A2 31 But there is no evidence the levee was designed to carry traffic or support a road, and correspondence from 2015 appears to suggest that the levee was not designed or anticipated to carry a roadway. 32 https://www.sfchronicle.com/climate/article/tulare-lake-flooding-california-17905335.php Agenda Item #5.1.
April 30, 2023
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.”)).
The EIR Is Deficient on Numerous Other Topics that Reveal Its Bias The EIR’s analysis of numerous other topics is insufficient and shows a lack of serious effort to identify and mitigate impacts of the Project. Amongst those issues are the following:
Aesthetics
The EIR suggests there will be no impact on aesthetics, despite the Project being designed contrary to the General Plan’s prohibition on the use of cul-de-sacs that obstruct vineyard views.
The Project will substantially alter the current view from Adams Street/Library Lane, and remove or otherwise obstruct current vineyard and hillside views. While the EIR and proposed findings suggest the project will undergo design review in the future, no actual designs or use permit application for the multi-family parcel has been considered. As such, the EIR’s conclusions are based on speculation, not actual substantial evidence in the record. This is the result of the Project’s piecemeal consideration in violation of City code.
Moreover, while the EIR acknowledges the impact of lighting and requires mitigation by the Applicant, there does not appear to be any restriction on future residents from modifying or altering exterior lighting. The mitigation should be revised to address the potential for future spillover lighting-related issues and impose restrictions through appropriate CC&Rs.
Agricultural Resources
The Project calls for removal of multiple acres of vineyard directly contrary to the General Plan.
5.8 acres of Prime Farmland will be lost, again directly contrary to the General Plan, in addition to an 0.6 acres of Farmland of Statewide Importance. The failure to fully analyze or adopt an alternative project to preserve that Farmland lacks substantial or persuasive evidence to justify that this loss cannot be avoided or mitigated.
Air Quality
As discussed above, the Project’s operation GHG emissions due to its contribution to vehicles stuck in traffic has not been properly analyzed. Vehicle emissions degrade air quality, both of GHG components and other emissions. As such, the EIR fails to fully consider the Project’s air quality impacts.
Biological Resources
The Project is immediately adjacent to the Napa River and the habitat restoration project on the riparian side of the levee. The Project intends to fill four wetlands. While the project is required to obtain a permit for such fill, the proposed findings do not provide any evidence that such fill is Agenda Item #5.1.
April 30, 2023
unavoidable, or that Alternative 3, the Park/Open Space Alternative which would preserve the wetlands, is not an environmentally superior alternative to the Project. Indeed, the Alternatives’ analysis is sorely lacking, as there are numerous issues with the proposed Project that could have been address by Alternatives, particularly those that avoid removal of the vineyards.
Land Use and Planning
As discussed in the accompanying correspondence, the Project is wildly at odds with the applicable 1993 General Plan policies. It is likewise at odds with the current General Plan as well, for essentially the same reasons. The EIR’s conclusion that the Project is consistent with the applicable General Plan and land use regulations, including the City’s subdivision code, is contrary to the evidence in the record.
Noise
Because no design and no use permit for the multi-family development on Lot 52 has been presented, it is impossible to evaluate the noise impacts of a dense but undefined development.
The EIR lacks any, let alone substantial evidence to support a finding, that the Project, and particularly Lot 52, will not have a significant impact on noise. Once again, the piecemeal approach to the Project renders the EIR insufficient as it fails to consider the whole of the Project.
Recreation
Although the EIR discusses the Project’s potential impact on the use of other recreational facilities, it wholly ignores that the site is currently used for recreation, and that recreation site will be lost as a result of the Project. The Project will have a significant and unavoidable impact on recreation for the countless residents that currently use the property for recreation purposes.
The proposed findings failure to even mention, let alone mitigate, these impacts lacks substantial evidence and fails to acknowledge the significant impact the Project will have on area residents’ recreation.
Failure to Provide Affordable Housing
Because of the significant unavoidable impacts on the environment the Project will have, a statement of overriding considerations is required. A statement of overriding considerations requires balancing of, inter alia, the economic benefits of the project with its demands on the environment. However, there is no affordable housing agreement to consider that might balance the benefits of the Project to the pressing need for affordable housing. 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 #5.1.
April 30, 2023
Given the absence of an affordability plan to consider, there is no basis to conclude that the Project will provide the needed affordable housing consistent with the City’s requirements that would warrant a statement of overriding considerations. As noted in our accompanying letter, the Applicant’s prior efforts to propose an Affordable Housing Agreement were soundly rejected.
The project design of shunting a potentially affordable multifamily project to the side of the single-family development was found contrary to the City’s inclusionary policies. Relying solely on the position that the City’s code requires some affordable housing and therefore justifies a current factual finding that the Project does provide that benefit is akin to concluding that every project complies with the law because the law requires it to.
This is not an instance where the Applicant simply has not yet proposed a plan. It did, and it was soundly rejected. The February 2020 Notification to the Applicant33 was clear:
as we have discussed previously, City staff continues to have concerns with the fact that a portion of the affordable units will be provided as rental ADUs and the remainder of the affordable units clustered on a single parcel. Section
17.146.050(I) declares:
Affordable units shall be comparable in number of bedrooms, exterior appearance and overall quality of construction to market rate units in the same residential project. Subject to the approval of the planning commission, square footage of affordable units and interior features in affordable units need not be the same as or equivalent to those in market rate units in the same residential project, so long as they are of good quality and are consistent with contemporary standards for new housing. Affordable units shall be dispersed throughout the residential project, or, subject to the approval of the planning commission, may be clustered within the residential project when this furthers affordable housing opportunities.
The Planning Commission has not been presented with any request to approve such a design.
Indeed, City Staff concluded in 2020 that:
the affordable units are not dispersed throughout the project. Over two-thirds of the units are located on a single parcel, and an additional eleven ADUs will be located on a handful of the other 51 lots. The proposal does not meet the spirit nor the letter of the requirement that the units be dispersed throughout the project.34 It appears that the current external planning consultant is ignoring City Staff’s prior conclusions and did not include this information in its staff report for the Planning Commission to consider.
The Planning Commission has now passed the project to the City Council without any analysis of 33 Notification of Final Unresolved Issues and Questions (Feb. 27, 2020), available at:
https://www.cityofsthelena.org/sites/default/files/fileattachments/planning_resources/project/3486/02-20- 2020_unresolved_issues_and_questions_hunter-final-c2.pdf. 34 Id.
Agenda Item #5.1.
April 30, 2023
the conflict of the Project with the City’s affordable housing policy.35 Worse, the Staff Report provided to the City Council notes that the Applicant submitted a proposed Affordable Housing Agreement on February 1, 2019, but does not mention the City’s rejection in 2020 discussed above. This raises serious questions as to whether the EIR reflects the City’s “independent judgment,” 36 and whether the City Council is receiving the full and complete analysis it is entitled to in making such a profoundly important decision.
Given the Applicant’s repeated failures to submit an acceptable affordable housing plan, it is impossible to conclude that the Project will comply with the City’s affordable housing policy.
Indeed, the effort to approve solely the subdivision map to allow the creation of 51 single-family lots without scrutiny of the affordable housing component appears intended precisely to avoid the need to comply with the City’s policies of integrating affordable housing of similar types and styles into a project.
To be blunt, the only integrated affordable housing proposal appears to be that a handful of rich people will make money off some poor people living in their backyards, while the rest of the affordable units are packed together in place of an existing vineyard. City Staff previously found this proposal not to meet City code. To approve the Project as currently presented, the Council will now need to ignore City Staff’s prior conclusion it is contrary to City code. The City Council would need to make an affirmative finding that the Project is consistent with the City’s affordability program and general plan and warrants approval despite its significant unavoidable impacts. It cannot do so on this record.
In light of the above, the Council must exercise its independent judgment to conclude the Project is inconsistent with the General Plan and municipal code and has failed to submit an acceptable affordability proposal or design, and to require the Project to be redesigned consistent with the City’s objective standards.
The Required Findings for a Statement of Overriding Consideration Cannot Be Made Statements of overriding 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 Guideline 15093 provides the following instructions:
(a) CEQA requires the decision-making agency to balance, as applicable, the economic, legal, social, technological, or other benefits, including region-wide or statewide environmental benefits, of a proposed project against its unavoidable environmental risks when determining whether to approve the project. If the specific economic, legal, social, technological, or other benefits, including regionwide or statewide environmental benefits, of a proposal project outweigh the 35 See generally, Report to the City Council, Special City Council 01 May 2023. 36 P.R.C. § 21082.1(c)(3).
Agenda Item #5.1.
April 30, 2023
unavoidable adverse environmental effects, the adverse environmental effects may be considered "acceptable."
(b) When the lead agency approves a project which will result in the occurrence of significant effects which are identified in the final EIR but are not avoided or substantially lessened, the agency shall state in writing the specific reasons to support its action based on the final EIR and/or other information in the record. The statement of overriding considerations shall be supported by substantial evidence in the record.
The draft statement of overriding consideration fails to identify real, quantifiable benefits, and does not have evidence to rely on for affordable housing in particular. Again, there is no actual affordable housing proposal and the prior proposal was soundly rejected on the basis that the Project’s design was discriminatory and inconsistent with City policy and the General Plan. The draft barebones statement “The Project provides needed housing to the City, particularly affordable housing” is not supported by any meaningful evidence in the record and is contrary to the current state of the Project. The Project does not supply a mix of types and affordability of housing as required by the General Plan, and does not supply any of the critical middle-income housing that is sorely lacking in the City.
By evading consideration of the Project’s implementation of affordable housing requirements and multi-family use and design elements, it attempts to lock in a single-family development with no opportunity to require compliance with the City’s inclusionary housing policies or General Plan requirements for a mix of housing types.
The apparent suggestion that simply all housing projects are good and must be approved is wrong. The Planning Commission made this error. The City Council should not repeat it.
Conclusion
The Applicant has repeatedly attempted to avoid scrutiny of the design of its project. The EIR presented for Certification poorly analyzes only a hypothetical, unsubmitted project, not the Project currently under consideration by the Council. In doing so, the EIR has failed to analyze numerous elements of the Project. Some are incapable of full consideration, such as aesthetics, without an actual proposed multi-family project. Others are clearly inadequate on the current record as discussed in detail above.
As detailed above, the Project’s problems are numerous and, in short, present significant threats to public safety, and fail to meet the legal requirements of the City and the State with respect to, at a minimum, safety, environmental, water, and affordable housing.
The Project puts the current residents of the City at substantial risk to benefit White Fang LLC’s development interests.
Agenda Item #5.1.
April 30, 2023
The EIR should not be certified. The substantial deficiencies discussed above require remediation and recirculation following the Applicant’s submission of all of the necessary information for consideration of the whole of the Project.
Sincerely,
DICKENSON, PEATMAN & FOGARTY PC
Joshua S. Devore
cc: Ethan Walsh, City Attorney, [email protected]
Cindy Tzafopoulos, City Clerk, [email protected] Agenda Item #5.1.
From: Kathleen Guneratne
To: John Ponte; Autumn Anderson; Marika Rothfeld; Rosaura Segura; Christopher Warner; Anil Comelo; Maya DeRosa; Public Comment
Subject: Re: [External] Hunter Project- Opposed - Public Comment - Nearby resident - will violate water usage laws and threaten public safety by compromising levee
Date: Monday, May 1, 2023 8:02:36 AM
Dear City Council,
I have previously sent the planning commission my strong opposition to the Hunter Project.
As a resident and homeowner at nearby 1370 Grove Court, I write to voice my strong opposition to the planned Hunter subdivision. Even in its scaled back version, Environmental Impact Report File #PL10-040 will cause irreparable harm to the environment, and Native American burial grounds. In particular, especially given climate change, historic drought and now a very real flooding risk, I am concerned that the proposed findings require, at a minimum, additional analysis of a significant environmental issue facing all of California, sustainable groundwater management. Instead it appears that the project will violate water usage laws. It also appears that the construction of the road next to the levee and development will compromise the levee and constitute a threat to public safety.
I am proud to live in a town that respects nature, the environment and prioritizes affordable groundwater and sustainable development for all its residents. Sustainable development, including traffic and evacuation zones, and protecting levees in case of flooding.
I urge you not to approve this report and this project. It will cause irreparable harm to the neighborhood and the environment and to water usage.
Regards,
Kathleen Guneratne
1370 Grove Court
St. Helena, CA 94574
On Mon, Feb 6, 2023 at 5:49 PM Kathleen Guneratne <[email protected]> wrote:
Dear Planning Commission:
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 City Planning Commission:
As a resident and homeowner at 1370 Grove Court, I write to voice my strong opposition to the planned Hunter subdivision. nter Subdivision Project Environmental Impact Report, File #PL10-040.
Even in its scaled back version, the Environmental Impact Report gives me great concern that this will occasion irreparable harm to the environment, and Native American burial grounds. In particular, especially given the drought, I am concerned that the proposed findings that requires, at the a minimum additional analysis of a significant environmental issue facing all of California, sustainable groundwater management.
I am proud to live a town that respects nature, the environment and sustainable development and prioritizes affordable groundwater for all its residents.
Agenda Item #5.1.
I urge you not to approve this report and this project. It will cause irreparable harm to the neighborhood and the environment.
Regards,
Kathleen Guneratne
1370 Grove Court
St. Helena, CA 94574
Agenda Item #5.1.
From: Kevin Bradley
To: Public Comment
Subject: [External]
Date: Sunday, April 30, 2023 6:31:12 PM
Good evening, St. Helena City council, I will keep it short. Where is the water coming from? Thank you, Kevin
Agenda Item #5.1.
From: Cindy Tzafopoulos
To: Erika Opp
Subject: FW: [External] Hunter Project Final Environmental Impact Report (FEIR).
Date: Monday, May 1, 2023 10:00:30 AM
Attachments: image001.png
Public comment
Thank you,
Cindy Tzafopoulos
City Clerk
City of St. Helena
1088 College Avenue *NEW ADDRESS
St. Helena, CA 94574
Direct 707-968-2742 | Cell 707-312-1257
Fax 707-963-7748
[email protected]
www.cityofsthelena.org
Office Hours:
Monday – Friday
9:00 a.m. – 4:00 p.m.
Closed for Lunch between 12:00 – 1:00 p.m.
E-mail correspondence with the City of St. Helena (and attachments, if any) may be subject to the California Public Records Act, and as such may therefore be subject to public disclosure unless otherwise exempt under the Act.
From: Maya DeRosa <[email protected]>
Sent: Sunday, April 30, 2023 2:12 PM
To: Cindy Tzafopoulos <[email protected]> Cc: Eric Norris <[email protected]>
Subject: FW: [External] Hunter Project Final Environmental Impact Report (FEIR).
Hi Cindy, please post to Hunter agenda. Thanks
MAYA DEROSA, AICP
COMMUNITY DEVELOPMENT DIRECTOR
City of St. Helena | Community Development Department
1088 College Avenue | St. Helena, CA 94574
Direct: (707) 967-2783 | [email protected] | http://cityofsthelena.org/planning From: Marija Jovanovic <[email protected]>
Agenda Item #5.1.
Sent: Sunday, April 30, 2023 11:47 AM
To: Maya DeRosa <[email protected]>
Subject: [External] Hunter Project Final Environmental Impact Report (FEIR).
City of St. Helena City Council
1572 Railroad Avenue
St. Helena, California 94574
(707) 967-2783
Dear Members of the City Council of St. Helena,
I am writing regarding the Hunter Project Final Environmental Impact Report (FEIR). I am writing to ask you to VOTE NO on approval of the FEIR.
I am a resident of St. Helena and have a deep appreciation for the beauty and natural resources of our community. I am also concerned about the potential for flooding in the area.
The proposed development would be located on land that is currently protected by levees. These levees were built to protect the area from flooding, but they are not infallible. In fact, they have been breached several times in the past, most recently in 1986. If the levees were to fail, the proposed development would be at risk of flooding.
In addition to the flood risk, I am also concerned about the impact that the development would have on the environment. The proposed development would clear a significant amount of trees and vegetation, which would harm wildlife and contribute to climate change.
I urge you to reject the proposed housing development in Vineyard Valley, St. Helena. This development would pose a serious risk to the safety and well-being of our community.
Sincerely,
Marija Jovanovic
Agenda Item #5.1.
1124 Hudson Avenue
St Helena, CA 94574
Phone 650-798 7448
email: [email protected]
Agenda Item #5.1.
From: Nicole Dale
To: Public Comment
Cc: Scott Dale
Subject: [External] Public Comment on Hunter Project
Date: Monday, May 1, 2023 12:34:53 PM
Dear City Council Members,
We share a property line with the proposed Hunter Project and are in opposition of the development. In addition to our concerns over loss of open space, water, flooding, etc. our top concern is the increased traffic in the neighborhood. Hunt and Starr Ave are already heavily trafficked, not only to vehicles but also to pedestrians. We currently have a major problem with vehicles speeding by our home and have been witness to several near accidents as well as a few vehicle accidents at the cross of Hunt and Monte Vista in which several people were transported to the hospital. Thankfully, there were no pedestrians present at the time of these accidents which is surprising when you constider how many people walk up and down Hunt Street each day.
There are a lot of families that live in the area, we have two young children of our own, and do not believe the current infrastructure safely handles all of the traffic through this area, let alone adding one-hundred+ cars to the mix.
Thank you for taking our concerns for the safety of our children and neighborhood into consideration.
Best Regards,
Nicole and Scott Dale
1326 Monte Vista Ave
Agenda Item #5.1.
From: Pat Kenealy
To: Public Comment
Subject: [External] Hunter project discussion at May 1 City Council Meeting Date: Sunday, April 30, 2023 1:03:35 PM
Please do NOT approve the Tentative Map proposed for the Hunter subdivision. It seems the map should be revised to mitigate the "significant and unavoidable" traffic and transportaion impacts it will have. Central Saint Helena already has gridlocked traffic twice a day most days and adding hundreds of more car trips daily will degrade the City's quality of life. The follow-on evacuation effects are worse. The flood safety and water use sections of the EIR seem to too credible. Finally the liabilities the project exposes the City to seem to have received little attention.
I'd urge the Council to work for a LOWER DENSITY map more in keeping with our City's identity and its ability to provide services.
Pat Kenealy
2995 Spring Street
Saint Helena
Agenda Item #5.1.
From: Cindy Tzafopoulos
To: Erika Opp
Subject: FW: [External] Public Comment for item 5.1 May 1 Special City Council Meeting Date: Monday, May 1, 2023 10:01:05 AM
Attachments: image001.png
Public comment
Thank you,
Cindy Tzafopoulos
City Clerk
City of St. Helena
1088 College Avenue *NEW ADDRESS
St. Helena, CA 94574
Direct 707-968-2742 | Cell 707-312-1257
Fax 707-963-7748
[email protected]
www.cityofsthelena.org
Office Hours:
Monday – Friday
9:00 a.m. – 4:00 p.m.
Closed for Lunch between 12:00 – 1:00 p.m.
E-mail correspondence with the City of St. Helena (and attachments, if any) may be subject to the California Public Records Act, and as such may therefore be subject to public disclosure unless otherwise exempt under the Act.
From: Maya DeRosa <[email protected]>
Sent: Sunday, April 30, 2023 2:18 PM
To: Cindy Tzafopoulos <[email protected]> Cc: Eric Norris <[email protected]>; Ethan Walsh <[email protected]>; Sarah Owsowitz <[email protected]>; Joseph Leach <[email protected]>; Brian Grattidge <[email protected]>
Subject: FW: [External] Public Comment for item 5.1 May 1 Special City Council Meeting Hi Cindy, not sure if you received the comment below? If not, please post to agenda. Thanks
MAYA DEROSA, AICP
COMMUNITY DEVELOPMENT DIRECTOR
City of St. Helena | Community Development Department
1088 College Avenue | St. Helena, CA 94574
Direct: (707) 967-2783 | [email protected] | http://cityofsthelena.org/planning Agenda Item #5.1.
From: Sherri Kelly <[email protected]>
Sent: Saturday, April 29, 2023 1:28 PM
To: Maya DeRosa <[email protected]>
Subject: [External] Public Comment for item 5.1 May 1 Special City Council Meeting Hello Maya,
Please include this with the other Public Comments for item 5.1, May 1 Special City Council meeting.
Thanks.
There have been many concerns expressed by members of the St. Helena community over the last 12 years in public comments to the Planning Commission regarding the Hunter project application, including:
the unsafe and inappropriate building location,
negative impacts on traffic, especially emergency egress on the east side of St.
Helena,
unrealistic water use calculations in the proposal, which are not compliant with Napa County regulations,
the need for differently configured affordable housing than the applicants have included in their proposal. Any affordable housing included in the Hunter project must conform to principles of inclusion and social justice by interspersing affordable housing units in an evenly distributed way throughout the St. project, not simply placing them in a cluster on a single parcel.
The Hunter project proposal is currently so vaguely defined that the mitigation measures suggested in the FEIR and even the hundred-plus conditions that City staff has recommended as prerequisites for Tentative Map approval in Planning Commission Report 140-157 fail to provide realistic and comprehensive solutions to these problems.
Will our City Council members commit to this flawed project, and thereby place the inevitable negative consequences in their personal legacies for years to come? I hope some serious thought will be applied to this today. It’s not too late to avoid a bad decision.
While the Hunter project applicants have responded to some of the above concerns during the EIR process, taken as a whole, the mitigations proposed by the applicant, and now seemingly supported by the St. Helena Planning Commission, are unrealistic and unachievable. As a result, St. Helena City staff proposed the builder improve the project proposal through 123 conditions for approval (Planning Commission Report 140-157). In response to this good faith effort of the part of the City of St. Helena to bring this project application into some sort of safe and workable state, the Hunter/Vanzutphen group retained the law firm of Holland and Knight LLP to threaten legal action against the City for having the audacity to insist that this project's lack of Agenda Item #5.1.
definition and many flaws be properly and realistically addressed. This response is proof the Hunter/Vanzutphen group have no interest in spending the time and money required to build this project in a compliant and safe manner. This threat of legal action against the City makes transparent the goal of the Hunter/Vanzutphen group to ‘make a fast buck’ and disappear.
Further evidence of the ill-defined nature and obscure details of the Hunter project is pointed out by Joshua Devore, in his letter to the Planning Commission, dated 2/6/23. “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.” Also, Mr. Devore’s citation of a Violation of Subdivision Ordinance Section 16.16.020 in attachment 10, dated 2/6/23 with documentation of the applicant’s failure to submit concurrently the required discretionary approvals. How can the City Council assure that members of the public were accurately notified of the Hunter project elements if required discretionary approvals were never included in the project application or if changes to the FEIR documents have been made yet not indicated or published in such a way as to assure public access? As Isobel Luria wrote in public comment to the Planning Commission on this matter, dated 2/3/23 “As it now stands, the City is being asked to approve a largely undefined project and ‘additional conditions and substantive design changes cannot be required, once a tentative subdivision map is approved.” Looking at the Hunter project as currently proposed, with the general failure (and apparent refusal, as evidenced by Hunter/Vanzutphen’s threat of legal action in attachment 4) to effectively mitigate issues of public safety, traffic, water neutrality and the need for inclusively located affordable housing, how can City Council responsibly approve any step forward on the Hunter project application? Personally, I’m stunned and disillusioned that this defective project is now before the City Council.
At this point in the 12+ year contentious discussion regarding the Hunter project, the mitigations proposed during the EIR process are efforts to save an irredeemably flawed, unsafe and unrealistic development proposal. If the Hunter project is built as proposed, the City of St. Helena and the citizens of St. Helena, including any new residents of the project, will reap negative financial, physical and emotional consequences for decades to come. If a simple citizen in the community, such as myself, can understand this, I’m sure the deficiencies of the Hunter Project must be clear and obvious to City staff and members of the City Council. No Statement of Overriding Considerations will ever heal the far-reaching damage done if the Hunter Project is approved as proposed. Is this something the City Council members wish to carry as their legacy?
For these reasons, I respectfully urge the City Council to halt consideration of the Hunter Subdivision Project Application.
Sherri Kelly
Agenda Item #5.1.
Agenda Item #5.1.
WATER AUDIT CALIFORNIA
A PUBLIC BENEFIT CORPORATION
952 SCHOOL STREET #316 NAPA CA 94559
VOICE: (707) 681-5111
EMAIL: [email protected]
May 1, 2023
Via Email:
[email protected]
Mayor Paul Dohring, [email protected]
Vice Mayor Eric Hall, [email protected]
Council Member Anna Chouteau, [email protected] Council Member Lester Hardy, [email protected]
Council Member Billy Summers, [email protected] City Manager Anil Comelo, [email protected]
Community Development Director Maya DeRosa, [email protected] COMMENT re: Resolution to approve Tentative Map No. 2022-001 and certify the Environmental Impact Report - File #PL10-040 for the Hunter Subdivision project.
Water Audit California, an advocate for the public trust, objects that the Environmental Impact Report (“EIR”) does not comply with due process, the procedural requirements of the California Environmental Quality Act (“CEQA”), or public trust duties, and does not contain sufficient evidence of adequate supply of water. Further, the EIR does not consider a reasonable and environmentally preferable alternative.
(A) The EIR does not comply with due process or CEQA.
Public notice requires a reasonable opportunity to consider the business being considered. Notice shall be given of a meeting of a legislative body and that specifies the “business to be transacted or discussed.” This EIR has failed in that fundamental duty.
The agenda package for the subject EIR was posted on the CSH website late on the day on Friday, April 21, 2023. On Tuesday, April 25, 2023, at 7:13 p.m., Water Audit staff downloaded a reference copy of 3768 pages. Minutes later, on April 25, 2023 7:21 p.m., a Agenda Item #5.1.
WATER AUDIT CALIFORNIA
A California Public Benefit Corporation
952 School Street, #316
Napa, CA 94559
Voice: (707) 681-5111
Email: [email protected]
1 second copy was downloaded with a total of 3780 pages. This comment references a third copy downloaded on Wednesday, April 26, 2023, at 10:16 p.m., which also consisted of 3,780 pages.
Reference was made throughout this comment to the page numbers assigned to the April 26 documents.
On Sunday, April 30, 2023, at 9:22 a.m. Water Audit staff noted that the agenda packet had increased to 4,318 pages, with the additional pages inserted, not appended. For example, the Dudek Well Completion Table that was on page 625 of 3780 on April 26 version is now page 1163 of 4,318 in the April 30 version. Accordingly, the page numbering in this comment do not relate to the packet currently before council.
This conduct renders comments unintelligible, deprives the public of the ability to comment and is a violation of due process.
(B) Without a finding of sufficient water, this project cannot be built.
Water supply resiliency is a threshold of significance for land use change or development projects. An EIR must answer the question posed by CEQA, Section G, XVIII Utilities and Service Systems (d).: “Would the project have sufficient water supplies available to serve the project from existing entitlements and resources, or are new or expanded entitlements needed?
(a) The CSH water supply has proven inadequate for present needs CSH relies on surface water runoff and groundwater from three sources to supply municipal water needs. All are vulnerable to water shortages during periods of sustained low rainfall.
The EIR asserts that this project is within the CSH “Safe Yield” declaration of 2,150 acrefeet (“AF”). The definition of "safe yield" is:
“The safe annual yield of the St. Helena water supply system is that quantity of water which can be reliably delivered on an annual basis through most rainfall years, including a Dry Year (rainfall of 22" to 25.9") without undue hardship on water customers through water shortage restrictions. It is recognized that the safe annual yield, as so defined, could place significant hardship on water customers in a Critically Dry Year (rainfall at 21.9" or less) or in periods of two or more consecutive Dry Years.”
In making this determination, the CSH is departing from the principle that sufficient water must be available even in the event of multiple dry years. The California Constitution allows a city to make and enforce ordinances and regulations that do not conflict with the state's own general laws. However, where there is direct conflict between municipal and state law, the state law prevails.
While the City may chose to inflict upon its own citizens the burden of inadequate water by adroit definition, to pass CEQA muster the applicant and the City must establish that Agenda Item #5.1.
WATER AUDIT CALIFORNIA
A California Public Benefit Corporation
952 School Street, #316
Napa, CA 94559
Voice: (707) 681-5111
Email: [email protected]
2 objectively there is sufficient water, even in multiple dry years. The facts and the EIR do not and cannot carry this burden. 1
(i) State Water Project transfer from City of Napa.
CSH was originally entitled to purchase 1,000 AF of water from the State Water Project North Bay Aqueduct through the Kern County Water Agency, but the mechanism for delivery of the water allotment did not exist. CSH was reluctant or unable to install the necessary engineering works. In 2006, the City of Napa purchased the City’s 1,000 AF entitlement in exchange for agreeing to deliver to the City 400 AF. EIR 728 A December 2011 Amendment increased CSH allocation from 400 acre-feet to 600 acre-feet.
However, these are nominal amounts. The actual deliveries are determined by the Department of Water Resources (“DWR”) depending on each year’s hydrologic conditions. The full entitlement amount would typically only be available during very wet years. The Department of Water Resources estimates that 62% of SWP contractors’ entitlements would be available in a normal year, 29% would be available during a single-dry year, and 5% available during a multi-year dry period. EIR 729
Fortunately, because of extraordinary water management by the City of Napa, CSH has been able to skirt catastrophe in drought conditions. See the CSH Water Reports., which show Napa transfers in excess of 600 AF in 2019 and 2020, drought years. (ii) Surface water collection at Bell Canyon Reservoir
Beginning in the 1960s, Bell Canyon reservoir has been the City’s main water source, by collecting rainfall from a watershed to the northeast. While in the past the Bell Canyon Reservoir has been able to produce the largest portion of the City’s water supply, recently that has not been the case. Bell Canyon production at 379 AF in 2022 was less than half of 2019 at 836 AF. In 2022, both the water transfer from the City of Napa (392 AF) and Stonebridge (467 AF) were greater than Bell Canyon’s contribution (379 AF).
These figures are drawn from CSH’s published public Water Reports. The EIR 725 does not cite to a record and are not in full accord with the facts. For example, the EIR states Stonebridge 2020 production to be 302 AF, while the Water Report is 363 AF. More significantly, the EIR omits entirely the years of 2021, 2022 and 2023.
Given climate driven change, historical reference to Bell Canyon production in the safe yield calculation is of little practical use.
(iii) Groundwater extraction by Stonebridge
The City owns and operates two groundwater wells, collectively known as the Stonebridge Well Complex (herein “Stonebridge”). The City sees Stonebridge as a flexible water source in the system, using groundwater to balance system flows based on availability of water in Bell Canyon.
1 In Exhibit H it is asserted that an average sufficient supply is 100 gallons per person per day.
Under Phase II restrictions CSH residents have been rationed to 65 gallons per person per day.
Agenda Item #5.1.
WATER AUDIT CALIFORNIA
A California Public Benefit Corporation
952 School Street, #316
Napa, CA 94559
Voice: (707) 681-5111
Email: [email protected]
3 The EIR states: “The City currently restricts the use of groundwater from these wells with the goal of limiting extraction to 450 AF per year for long term sustainability.” EIR 729 “In an agreement with the environmental advocacy group Water Audit California, the City is monitoring water levels with a goal of limiting extraction to 450 AF per year on average. (Napa Valley Register, 2021)” EIR 730 It is true that CSH agreed with Water Audit that it would measure water levels, however, when the City failed to perform, Water Audit sued. The inability to report the current cumulative proximate groundwater extractions required by this EIR is evidence of the City’s continuing failure.
See also: “Furthermore, the City’s groundwater would only account for a minimal amount of water use on the Project site, as the City currently limits the use of groundwater from the City’s wells in an agreement with the Water Audit.” EIR 750 Without citation to the record, the EIR asserts: “The Water Audit’s complaint does not ask for changes to existing water uses.” EIR 2579
There was and is no agreement between Water Audit and CSH regarding Stonebridge production of 450 AF per year, and there is no Napa Register article to that effect. Water Audit’s position is that the City shall do no harm to the public trust, and the City was unwilling to agree.
The litigation made clear reference to the injury caused to the public trust by CSH groundwater extraction. For example, it cited LSCE graphics presented to the Watershed Information Council in 2015:
Agenda Item #5.1.
WATER AUDIT CALIFORNIA
A California Public Benefit Corporation
952 School Street, #316
Napa, CA 94559
Voice: (707) 681-5111
Email: [email protected]
4 At paragraph 46 of the litigation:
In 2016, LSCE recommended that Napa County install additional monitoring of groundwater/surface water interactions in areas where data was lacking. No additional monitoring was installed. Although the CSH knew that its operation of the Pope Street wells was causing dewatering of the Napa River, no effort to mitigate injury to the public trust was undertaken. Further, the CSH permitted and authorized additional 31 groundwater extraction proximate to the recognized salmonid habitats of Bell Canyon, York, and Sulphur creeks without consideration of the potential impacts on the public trust, including but not limited to the Farmstead project and wells for Anomaly Wines, Beckstoffer and the St.
Helena Public Cemetery.
At paragraph 47, Water Audit avowed: “Consultants hired by the CSH to prepare an Environmental Impact Report (EIR) for the proposed Hunter Subdivision twice falsely cite an agreement with Water Audit. No such agreements exist.”
Nevertheless, these false assertions persist.
Among the numerous Prayers for Relief was: “CSH must modify its operation of the Pope Street wells to reasonably mitigate injury to the public trust.” Clearly the litigation sought to diminish current excessive extraction.
Water Audit dismissed the CSH litigation at the request of prominent local leaders in the hope the City would change its conduct without continuing legal compulsion. The dismissal was made “without prejudice,” a legal term meaning that Water Audit can file renewed litigation if CSH does not comply with its public trust duties.
(b) CSH has been in a persistent state of water emergency.
In 2011 CSH adopted a policy and mechanism for dealing with a potential “water emergency.” A Phase I emergency was to be declared when storage reached 60%; Phase II was declared with storage reached 39%. Minimum permissible “Fire Storage” is 25%, so when a Phase II emergency is declared, the useful volume remaining is only 14%.
By way of incomplete but illustrative example of the impact on residents, during a Phase I emergency citizens may not add any water consuming appliances and must have City Agenda Item #5.1.
WATER AUDIT CALIFORNIA
A California Public Benefit Corporation
952 School Street, #316
Napa, CA 94559
Voice: (707) 681-5111
Email: [email protected]
5 approval for any appliances replaced. Replacing an existing residential dishwasher during a Phase 1 emergency is subject to City approval.
In October 20202 the City declared a Water Shortage Emergency, because the water in the Bell Canyon, the supply capacity of the Stonebridge wells and the water available from the City of Napa was not sufficient to meet the City’s projected demands. In November 2020, when Bell Canyon storage reached 39%, the state of emergency was elevated to Phase II. The city did not downgrade from Phase II to Phase I until a year later, at the end of December 2021.
During a Phase II emergency residents are limited to 65 gallons per person per day, a third of the community’s pre-emergency unconstrained consumption.
As of the date of this comment, CSH has announced it anticipates dropping the Phase I emergency restrictions in July 2023, well over two years3 after they were first imposed. “The current water rate structure includes a drought period surcharge that begins once the City implemented the Phase I Water Regulations. … Drought rates are 6% higher than non‐drought rates.”
This hearing is being held while CSH residences may not replace a dishwasher without approval and while they are already paying a premium due to the state of water emergency.
Prima facie there is insufficient water in CSH for new development.
Emphasizing the current fragility of the City’s water system, in the recent past the City has been unable to take delivery of water from the City of Napa in sufficient volume because the Rutherford pump station deferred maintenance led to a system failure. For months the Bell Canyon water treatment plant has had to rely upon contract workers because the City is unable to attract qualified staff. In February 2023 the City lost from 10-15% of its capacity when a Stonebridge well pump failed without a spare in inventory. Citing “significant deferred maintenance,” Public Works Director Joe Leach said “Our water system continues to pose challenges.” Truer words were never spoken.
Until the existing challenges are overcome, the City cannot commit to any additional demand.
(v) The 1976 well is legally deemed abandoned, and cannot be used for this project.
Although the EIR proposes to use site pumped groundwater, “the Project does not require obtaining a well drilling permit.” EIR 2580, 3762. “[T]here is an inactive groundwater well located in the northern portion of the Project site that may have been historically used to provide construction water for the City’s Flood Protection Project and was used in the past for agricultural irrigation. The Project proposes to use this well for the irrigation of public and private landscaping and all other outdoor uses, which are estimated to require 17.16 AF per year. EIR 2580, EIR 627
2 Otherwise reliably stated to have been de facto imposed on July 1, 2020 – See staff notes to 2022 Water Report
3 By some measures, three years.
Agenda Item #5.1.
WATER AUDIT CALIFORNIA
A California Public Benefit Corporation
952 School Street, #316
Napa, CA 94559
Voice: (707) 681-5111
Email: [email protected]
6 See also: “The Project site contains an inactive groundwater well adjacent to proposed Lot 19 in the northern portion of the property identified as Parcel B … This well may have been historically used to provide construction water for the earth moving activities associated with the City’s Flood Protection Project and may have been used in the past for agricultural irrigation.
The existing condition of the well is considered inactive; however, as it was not being used at the time the Notice of Preparation was released. The Phase I Environmental Site Assessment completed for the Proposed Project noted that the well was inoperable at the time of the site visit (Appendix G).” EIR 623 For the sake of clarity, this engineering work will be referred to as the “1976 well.”
A well analysis is referred to in the EIR as “Appendix L.” However, “Appendix L” was not appended to the DEIR in the Agenda Packet iterations. Reference herein is to Appendix L from the Draft EIR posted on the City’s CEQA webpage.
Appendix L narrative asserts that the 1976 well was tested by 24-hour pumping. That assertion was false. By referencing the pumping report, one can see that while pumping took place over the course of a day, the pumping was not continuous. <<>> It remains unknown how the well would perform under 24-hour sustained load.
Appendix L fails to acknowledge4 that the wetlands survey did not include the well, as it was on a different property at the time the survey was performed (land then owned by the City.) If, as logic and topography imply, the 1976 well is in a wetland, then there are special concerns that have not yet been considered. A well should be located outside areas of flooding. This well in located proximate to a drainage ditch and collection pond, the latter intended to flood in high water. Good practice requires that the top of the well casing shall terminate above known levels of flooding caused by drainage or runoff from surrounding land. For community water supply wells, this level is defined as the:"...floodplain of a 100-year flood..." or above "...any recorded high tide...", (Section 64417, Sitting Requirements, Title 22 of the California Code of Regulations.) Surface drainage from areas near the well shall be directed away from the well. If necessary, the area around the well shall be built up so that drainage moves away from the well. Appendix L does not consider this subject.
Appendix L states that the screening on proximate monitoring wells is “unknown,” while a previous report by the same consultant was able to confidentially state the facts. It is only in the absence of that information that the consultant was then able to assert that the 1976 well does not draw from the Napa River. Had the proper reference been made, the only conclusion that could have been made was that water extracted from the volcanic rock zone in this location does deplete surface water flows.
Finally, Appendix L fails to acknowledge that by state law and municipal ordinance, the 1976 well is deemed to be abandoned, and the failure to destroy it is a continuing misdemeanor.
Given the proven connectivity to Stonebridge, this is a serious matter of public health.
Abandoned water wells can act as conduits for surface and subsurface pollution to enter groundwater supplies. Once polluted, groundwater is no longer drinkable.
CSH Ordinance 13.16.020 (E) states: “The city desires to require the location, construction and repair of water wells and other water systems to conform to California State 4 In fact, the Applicant implies the contrary.
Agenda Item #5.1.
WATER AUDIT CALIFORNIA
A California Public Benefit Corporation
952 School Street, #316
Napa, CA 94559
Voice: (707) 681-5111
Email: [email protected]
7 Department of Water Resources Standards as noted in DWR Bulletin Numbers 74-81 and 74-90 and as required in California Water Code Section 13801.” Water Code 13801 states in part that each city shall “adopt [an] abandonment ordinance that meets or exceeds the standards contained in Bulletin 74-81. The DWR publishes Combined Bulletins 74-81 and 74-90 (Water Well Standards). Part III, Section 21 reads: “A well is considered 'abandoned' or permanently inactive if it has not been used for one year, unless the owner demonstrates intention to use the well again.” Part III Section 22 states “All "abandoned" wells and exploration, or test holes shall be destroyed. The objective of destruction is to restore as nearly as possible those subsurface conditions which existed before the well was constructed taking into account also changes, if any, which have occurred since the time of construction.”
Health and Safety Code § 115700 provides that a well is considered 'abandoned' or permanently inactive if it has not been used for one year, unless the well owner properly maintains an inactive well as evidence of the intention for future use. Proper maintenance required to keep a well from becoming abandoned includes a notice to the local health officer of an intent for future use. No such notice has been given. The well site has not been kept clear of weeds and brush and has not been protected from flooding or run-off from adjacent lands.
Whether the well is capable of operation is irrelevant. By the process of law the 1976 well is deemed abandoned and it must be destroyed forthwith. Until this is done, the owner is guilty of a misdemeanor, and the City is acquiescent in the crime.
Assuming that the pump production rates are valid, it would seem an easy matter for the Applicant to simply drill a new well. That would pose a problem, however, as a new water availability study would have to consider its impact on the adjacent water course and the cumulative extractions of proximate wells as a matter of law. It is unlikely that a permit would be granted to drill a new well, even in permissive CSH.
Consultant RSA+ acknowledged in 2019 that a well interference study was necessary for the EIR, asserting that “It is assumed this has been performed under Dudek.” It had not.
The Dudek “well completion” analysis is prima facie inadequate. Although it makes narrative reference to “well completion reports,” no such records are appended or referenced.
Wells discussed are not identified by their DWR number. The extraction from numerous large proximate wells are not considered, including but not limited to the Stonebridge wells. The narrative cites no sources.
(vi) Contemporaneous LSCE reports contradict earlier works of sustainability.
The EIR repeatedly asserts that increasing groundwater extraction by this project will be of no consequence as the SGMA process has deemed the status quo groundwater condition is stable and sustainable. In support of this proposition the EIR makes reference on thirty-two occasions to LSCE works published for the County and GSA in 2013, 2014, 2016 and 2017. (for limited example, at EIR 515, 523, 539, 621 & 622).
Fortunately, it is unnecessary to challenge each citation (although for the record, such challenge is made) because the most critical facts are those that were not presented. Omitted in its entirety is the most recent and pertinent of LSCE’s work, the Groundwater Sustainability Annual Report – 2022 (March 2023) (“LSCE 2023”).
Agenda Item #5.1.
WATER AUDIT CALIFORNIA
A California Public Benefit Corporation
952 School Street, #316
Napa, CA 94559
Voice: (707) 681-5111
Email: [email protected]
8 In order to assess the groundwater condition, it is necessary to establish objective criteria. LSCE 2023 states that undesirable results for chronic lowering of groundwater levels occur when groundwater levels at (1) 20 percent of the groundwater levels at (2) representative monitoring sites are (3) below the defined minimum threshold (4) in the fall (September through October) (5) for three consecutive non-drought years. Note that this is a far more lenient standard than water insufficiency in drought years.
LSCE 2023 states that CSH and four other sites have fallen below the minimum threshold in non-drought years. The recurring and extended states of emergency speak adequately to the groundwater condition during drought.
LSCE 2023 asserts that there is injury to groundwater dependent ecosystems as a result of excess groundwater pumping and illustrates problem by illustrating the adverse surface water / groundwater interface caused by Stonebridge pumping.
LSCE 2023 admits that earlier representations that groundwater pumping was in sustainable balance were in error and now acknowledges that for five of the last seven years the sub-basin was over drafted beyond its sustainable limit, resulting in cumulative water storage loss.
LSCE 2023 concludes that one of the undesirable results of ground water depletion is injury to groundwater dependent ecosystems protected by the public trust. It concludes with multiple plans to remediate the injury, none of which contemplate the effects of further depletions of surface flows by additional extraction. Amongst government agencies, only CSH is considering such counter-productive conduct.
(C) The EIR fails to consider a reasonable and environmentally preferable alternative.
It is a distinction without a difference in terms of environmental injury whether water is extracted on the Hunter site or extracted at Stonebridge. The Stonebridge wells are hydrologically connected to the Hunter wells. To draw an analogy, Stonebridge and Hunter are but two different straws among many other straws sucking from the same glass of water. While there has been inadequate cumulative impact analysis, it is manifestly evident that the metaphorical glass is empty, and the public trust is dying.
The Napa River proximate to the Pope Street wells, June 2021 Image by Dr. Amber Manfree for Water Audit California
Agenda Item #5.1.
WATER AUDIT CALIFORNIA
A California Public Benefit Corporation
952 School Street, #316
Napa, CA 94559
Voice: (707) 681-5111
Email: [email protected]
9 In January 2023 Water Audit proposed to the City an alternative to dewatering the Napa River: a transfer of surplus waters in the Rector Reservoir equal to the extraction from Stonebridge. See attached correspondence. An engineering working group from several jurisdictions, including water department staff from CSH, have been diligently considering the proposal (together with other components of resiliency) for the last several months. They have tentatively concluded that there are no significant technical obstacles to the process.
CDFW has opined that the transfer would be environmentally preferable to continued groundwater extraction and agreed that the owner of Rector could have environment credit for that facility’s environmental obligations.
The primary obstacle is political intransigence. CSH has never acknowledged this alternative in public, instead continuing to extract from overdrawn public trust resources. This project merely exacerbates the problem.
It is submitted that it is a failure of CEQA process and an abuse of discretion to not consider this environmentally preferable alternative.
In conclusion, the EIR should not be certified. The project should be rejected as being incapable of conforming to CEQA water requirements, or at a minimum, the substantial deficiencies discussed above require remediation and recirculation following the Applicant’s submission of all of the necessary information for consideration of the whole of the Project.
Respectfully,
/S/ William McKinnon
William McKinnon
General Counsel
Water Audit California
cc: Ethan Walsh, City Attorney, [email protected]
Cindy Tzafopoulos, City Clerk, [email protected] Agenda Item #5.1.
Water Audit California <[email protected]>
Re: [External] Potential water transfer agreement
2 messages
Paul Dohring <[email protected]>
To: Water Audit California <[email protected]>
Cc: "Gerard, David@CalVet" <[email protected]>, "Freeman, Brendon" <[email protected]>, "Weightman, Craig@Wildlife" <[email protected]>, Anil Comelo <AComelo@cityofsthele Joseph Leach <[email protected]>
Hi Bill,
I enjoyed talking to you recently and leaning more about the general concept of a potential transfer of water to increase St. Helena’s water supply. Just to be clear, I conveyed my general interest in your proposal becau are always looking to augment our water supply. I don‘t have the benefit of many important details at this juncture, and I do not have the authority to formally “engage in a conversation regarding purchasing water from DV offset the City’s Stonebridge wells production.” Of course I would like to learn more about the process, conveyance possibilities, logistical challenges, engineering issues, and cost details going forward. I have passed on general proposal to our City Manager and Public Works Director, and I will leave it up to them to consider its merits and viability and make recommendations to our city council. I certainly want to explore all water supply a for our city, and wish to keep communications open, but I do not want to get too far out in front of our city staff or city council. Thank you.
Paul
Paul J. Dohring I St. Helena Mayor
[email protected]
Tel: (707) 942-1298
Sent from my City of St. Helena Issued iPad
wells. Downstream
proposal f
f, knows your
reach downstream
extended
water year at a
5937 obligations.
We suggest th
. The original report
On Jan 18, 2023, at 10:47 AM, Water Audit California <[email protected]> wrote:
Greetings, David
It's hard to believe, but almost two years have passed since we last communicated. I hope you and yours are well.
Some things are different now, but unfortunately some things remain the same. Rector Reservoir is full, but the City of St Helena still dewaters the Napa River by its operation of the Stonebridg of the Rector Dam remains a losing reach, stubbornly resistant to rewetting. Expert opinion is that rewetting more than two miles of the mainstem Napa River would be of greater impact than a the Rector reach.
Please consider the following. Let me assure you at the outset, Water Audit will in no way profit from this transaction, although if this works it would be nice to get a producer's credit for the reco I have spoken to City of St Helena Mayor Paul Doring, (copied on this email) and he would like to engage in conversation regarding purchasing water from DVA to offset the City's Stonebridge understanding is that this would be a paper transaction only, and that there would be no engineering or construction work involved. The City of Napa's Mayor Scott Sedgley has, in t community's interest, agreed to allow a senior member of his staff, Joy Eldredge, Napa's Deputy Utilities Director, to take lead on technical issues. She is known to your and CSH engineering systems, and her opinion on water transfer valuation is well respected. CDFW have agreed to participate and have endorsed the concept of the water transfer as a substitute for bypass into th the dam.
Assuming that CSH agrees to reduce Stonebridge operations proportionately, Water Audit is prepared to stipulate that the transfer would constitute DVA bypass pursuant to FGC 5937 and defe period (matching the term of the transfer agreement) any litigation regarding the Rector or Stonebridge reach. My understanding is that present good practice is to plan the quantum of deliverie time after consideration to the water available. Put another way, it will be a fundamentally different agreement than with the Town of Yountville and the Veterans Home.
The net effect is that DVA would be able to generate market rate revenue from its environmental releases to offset the costs of its monitoring programs as well as simultaneously satisfying its F Additionally, the DVA will be brought into the evolving process of coordinated regional water management, which offers the agency substantial peer benefits in changing climatic and regulatory this be a prototype effort, with continuous monitoring, review and revision as lessons are learned.
The Rector system was inspected, reviewed and reported in the spring of 2018 by Guy J. Schott, P.E., Associate Civil Engineer, State Water Resources Control Board Division of Drinking Wate are available on request. Consistent with / part of his reporting:
Rector Reservoir
Owned by State of California Department of Veterans Affairs Safe yield: 1,670;
Existing Deliveries: DFW <575 AF; Veterans Home & Yountville 740 AF Nominal surplus to safe yield: 355 AF
Maximum delivery surplus: 2,200 AF
Stonebridge extractions: 400-600 AF
1.) Photos of Rector Reservoir (2018)
2.) SWRCB 1970 Water license.
5.55 cfs direct diversion (X365); 1,767 AF to storage each year, diversion 10.01 to 05.31; total permitted deliveries (dir.&indir) 3,518 AF; maximum storage 4,400 AF
3.) Rector water distribution network showing intertie to Napa/Conn pipeline. Shows raw water distribution to County yard and CDFW Silverado.
4.) December 2000 Department of Water Resources Yield study.
Bathymetric study AF; dead pool 487 AF; carry over storage 2,768 AF; safe yield 1,670 AF. The (unauthorized) raising of spillway elevation offset 54 years of infill on storage capacity.
5.) Storage capacity curve, NET of dead pool.
DVA should have real-time monitoring from 2018.
6.) Veterans Home and Town of Yountville Consumption etc. 1989-2000 Total production during reporting period <740 AF. Note the following is more recent.
7.) ALL DELIVERIES
Note "system losses" ranged up to 22%. Since Water Audit litigation they have been in mid to low single digits.
8.) WATER USED BY CDFW FROM RECTOR RESERVOIR 2005-2017
NOTE: Low CDFW demands from June to October annually. 2017 is an anomaly caused by experimental flows made as part of DVA study. Otherwise <575 AF.
Attachments • Scanned by Gmail
I hope that I have persuaded you to meet and discuss the possibilities. Brendon Freeman, the Executive Director of LAFCO, (Local Area Formation Commission) is completely neutral in this pro Mr. Freeman Agenda Item #5.1.
available to all parties to secure answers to any questions and to coordinate scheduling. He is copied on this email, and his telephone contact numbers are 707.259.8645 (office) and 707.363.1783 (cell) Let's do a good thing here.
Bill
William McKinnon
General Counsel
Water Audit California
[email protected]
530.575.5335
WATER AUDIT CALIFORNIA - A California Public Benefit Corporation 952 School Street #316, Napa, CA 94559 / phone: (707) 681-5111 Water Audit California <[email protected]> Fri, Jan 20, 2023 at 3:03 PM To: Paul Dohring <[email protected]>
Cc: "Gerard, David@CalVet" <[email protected]>, "Freeman, Brendon" <[email protected]>, "Weightman, Craig@Wildlife" <[email protected]>, Anil Comelo <[email protected]>, Joseph Leach <[email protected]>, [email protected], "Eldredge, Joy" <[email protected]> <Attorney/client information redacted>
Good afternoon Paul
Thank you for your email.
As we discussed, this activity does not fall within my usual practice, so please forgive me if I inadvertently do not properly follow protocol. For the record, I do not have authority to speak for anyone. I do not have the authority to compel an agreement. In fact, one could argue that Water Audit should have nothing to do with solving CSH water problems, but as a matter of corporate philosophy we prefer to proffer reasonable solutions when we see them. We appreciate you considering our idea.
I have had preliminary collegial conversations with Ms. Eldredge about this proposition, and from those conversations have some been given some comfort about its viability. "It's not a mad idea," would be a fair characterization. She properly advised that she could not formally participate without her supervisors' instruction, so I went to see Mayor Sedgley, who agreed to take care of whatever was necessary for her to provide temporary guidance to this project. I am most grateful to both of them for being willing to go above and beyond to help solve this problem. Given my understanding of the engineering works, the City of Napa may be a necessary party to any deal here. For the record, by his courtesy Mayor Sedgley in no way bound the City of Napa to any further agreement of any kind. Assumably your staff will engage in appropriate conversations, and technical questions will be resolved. Respectfully, that is not the first order of business.
My communications with DVA on this topic have been professional, and as indicated in my January 18th email, my last was almost two years ago. While acknowledging some merit to this idea, as you have, naturally their first question was "Do you speak for CSH?" Clearly and obviously, I did and do not. At the time CSH counsel was unwilling to discuss the topic. Understandably, for that and other good reasons at the time, the possibility died on the vine. Time has passed, CSH has new leadership, and yet the problem of Stonebridge wells persists, so we are trying again to daylight this prospect for consideration with as little controversy as possible.
Please note: unless you have a willing seller in the DVA the deal is a "non-starter" without further discussion. Respectfully, everything else follows.
As no one should ever characterize my conversation with you as in any way binding on CSH, similarly, no one should ever characterize my communications with DVA as binding on that agency.
It would seem efficient for DVA and CSH representatives, without the authority or intent to bind anyone, to meet and see if there's any possibility to be pursued. If not, then there is no waste of time. If so, staff can do what needs to be done to assess logistical, conveyance and engineering matters. I have great faith in engineers to find solutions.
A different order of business seems unfair to Ms. Eldredge and the City of Napa. While CSH may wish to pursue the matter, unless the DVA is onboard the exercise is a waste of time.
Thank you for getting this ball rolling.
Bill
[Quoted text hidden]
Agenda Item #5.1.
From: Cindy Tzafopoulos
To: Erika Opp
Subject: FW: Response to Your Comments on the Hunter Subdivision Date: Monday, May 1, 2023 10:27:32 AM
Attachments: image001.png
Response to public comment, please save.
Thank you,
Cindy Tzafopoulos
City Clerk
City of St. Helena
1088 College Avenue *NEW ADDRESS
St. Helena, CA 94574
Direct 707-968-2742 | Cell 707-312-1257
Fax 707-963-7748
[email protected]
www.cityofsthelena.org
Office Hours:
Monday – Friday
9:00 a.m. – 4:00 p.m.
Closed for Lunch between 12:00 – 1:00 p.m.
E-mail correspondence with the City of St. Helena (and attachments, if any) may be subject to the California Public Records Act, and as such may therefore be subject to public disclosure unless otherwise exempt under the Act.
From: Eric Norris <[email protected]>
Sent: Monday, May 1, 2023 8:42 AM
To: [email protected]
Cc: Maya DeRosa <[email protected]>; Cindy Tzafopoulos <[email protected]>; Ethan Walsh <[email protected]> Subject: [External] Response to Your Comments on the Hunter Subdivision To Our Town St Helena:
Thank you for your letter of April 21, expressing your concerns about the development of the proposed Hunter Subdivision project and its compatibility with surrounding neighborhoods and consistency with the St Helena General Plan.
Your letter deals with two primary concerns:
1) the single-family lots are sized to support large homes that will likely sell in the $2.0- $3.0 million-plus range in today’s market and will not be affordable for our Agenda Item #5.1.
community’s working people, young families and seniors; and 2) the parcel designated for “affordable housing” is segregated from the remainder of the homes, and, as such, is in direct conflict with the City’s inclusionary housing ordinance that requires integration of the affordable homes and similar bedroom/bathroom counts as the single-family homes.
Our responses are provided below.
Issue: Homes on single family lots will be expensive and unaffordable to working people, young families, and seniors.
Response: The City recognizes that housing prices in St Helena present a challenge for many households. To address this issue, the City has adopted an updated Housing Element which includes extensive housing-related programs aimed at making housing affordable to households at all income levels, based on the City’s fair share allocation of housing growth for the region. The City has also adopted specific regulations, including Chapter 17.146 of the ST Helena Municipal Code, one provision of which requires that 20 percent of all new housing in projects with more than five units (including the proposed project) be affordable to moderate and low-income households.
The City’s position is that the 20 percent affordability requirement adequately provides for affordable housing opportunities within the Hunter project, which would be required to build 15 new affordable housing units. It is not the City’s responsibility or policy to set the sale or rental price of the “market rate” units which will be built, but the requirement for affordable units strikes a reasonable balance between the sale of homes at market prices and the provision of affordable homes.
Please note that the City will not allow the proposed Accessory Dwelling Units to count toward meeting the affordable housing requirement, even though ADUs which are rented tend to be available at much lower prices than the single family homes that they are located with.
Before any construction of homes can begin, the applicant will be required to obtain City Council approval of an Affordable Housing Agreement, which will describe in detail how the requirements of SHMC 17.146 will be met. If the Council disagrees with the applicant’s proposal and does not approve such an Agreement, no Final Map can be approved and no homes will be built until an agreement is reached and approved with the City Council.
Issue: Building affordable housing in one location on Lot 52 would conflict with General Plan policies and the St Helena Municipal Code. Specifically, you suggest that the development of multi-family homes on Lot 52 would conflict with Policy 2.6.19 of the 1993 General Plan, “Permit higher density housing in single family neighborhoods as long as the development character of the single family area is maintained (i.e., lot widths, orientation to street, building heights, etc.).”
Agenda Item #5.1.
Your letter also asserts inconsistency with the following policies from the 2019 General Plan:
Land Use (LU2.1): Promote a mix of housing types and price ranges that are consistent with the Housing Element RHNA categories of housing affordability.
Economic Sustainability (ES1.4): Encourage the creation of workforce housing to support the local employment base in keeping with small town smart growth.
Response: These policies relate to the affordability of homes in the project (discussed above) and the design of the future single-family and multi-family homes. Although not stated in your letter, the proposed density of the proposed project is entirely consistent with the density assigned to the project site in the General Plan, and is in fact the minimum number of units which could be constructed within the existing General Plan land use designation. The project is less dense than both of the adjacent residential developments: the Vineyard Valley mobilehome community and the Hunts Grove apartments.
As you note, the project is currently proposed to include a mix of single family homes and multifamily units. The applicant has not provided specific designs for either the single-family or multifamily homes, but will be required to do so and obtain approval of both Design Review (for all of the homes) and a Conditional Use Permit (for the multi-family homes) from the Planning Commission.
Staff shares your concern that the new homes built in the Hunter project will need to be carefully designed to maintain compatibility with the surrounding area and to conform with all applicable requirements. Staff looks forward to reviewing and processing specific design proposals, but we currently do have such an application in hand and cannot speculate on what the applicant’s specific proposal will be.
Please note that, while SHMC prefers that affordable units in a new residential development are distributed throughout the project, the City’s regulations specifically provide for a method of approval of affordable housing which is either 1) different in size from market rate units or 2) clustered, or both:
“Subject to the approval of the planning commission, square footage of affordable units and interior features in affordable units need not be the same as or equivalent to those in market rate units in the same residential project, so long as they are of good quality and are consistent with contemporary standards for new housing. Affordable units shall be dispersed throughout the residential project, or, subject to the approval of the planning commission, may be clustered within the residential project when this furthers affordable housing opportunities.” (SHMC 17.46.050.I) City staff looks forward to receiving specific proposals from the applicant for the design of the new housing and the required Affordable Housing Agreement. If the Hunter Subdivision is approved, we encourage you to watch for these future proposals so that you can provide comments on the specific concerns that you expressed in your letter.
Again, thank you for your letter. We look forward to your attendance at the May 1 City Council Agenda Item #5.1.