St. Helena City Council
May 1, 2023

City of St. Helena
Special City Council Meeting
Monday, May 1, 2023 @ 6:00 PM
Vintage Hall Board Room - Second Floor
465 Main Street, St. Helena

PLEASE NOTE: Any person who wishes to speak regarding an item on the agenda or make a comment under the "Oral Communication" portion of the agenda may do so, but please observe the time limit of four minutes.

The City Council meeting will be live-streamed on Comcast Channel 28 and on the City’s website.

Public comment for City Council meetings will be accepted via email to [email protected]. All public comments must be received three hours prior to the meeting. All other public comments received after the deadline will be attached to the item the next business day or soon thereafter. Public comments will not be read out loud but will be publicly available and attached to the on-line City Council agenda.

Simultaneous Spanish interpretation services during meetings can be scheduled upon request.

To ensure interpreters are available, requests must be made at least 72 hours in advance by calling the Office of the City Clerk at (707) 968-2640 or emailing [email protected].

The schedule of upcoming meetings and published meeting agendas can be found on the City of St. Helena website at https://sthelena.civicweb.net/portal/.

Servicios de interpretación en español durante la reunión pueden ser solicitados por el público.

Para asegurar que los intérpretes estén disponibles, los servicios tienen que ser solicitados al menos 72 horas antes de la reunión llamando a la oficina de la Secretaria de la Ciudad al (707) 968-2640 o por correo electrónico a [email protected] .

El horario de las reuniones publicadas y próximas puede ser localizado en el sitio de web de la Ciudad en https://sthelena.civicweb.net/portal/ .

Page

1. CALL TO ORDER

2. ROLL CALL
Mayor: Paul Dohring, Vice Mayor Eric Hall:, City Council Members: Anna Chouteau, Lester Hardy, Billy Summers

3. ADOPTION OF THE AGENDA

4. PUBLIC COMMENT:

Under California law, public comments at special meetings are limited to subjects on the agenda only. Therefore public comment will take place during consideration of the item. Each person’s comments shall be limited to 4 minutes.

5. PUBLIC HEARING:

5.1. *Attachments numbered 1-32 will be listed as separate items below due to the large file sizes.

Request by Ben and Kelly Van Zutphen to subdivide a 16.9-acre parcel to establish 51 single-family residential lots, 11 of which are proposed with accessory dwelling units on approximately 13.4 acres. A 3.13-acre parcel will be established to accommodate a 25-unit multi-family housing development. Two additional remnant parcels (Parcel A; 0.06 acres) and (Parcel B; 0.04 acres) will remain with no plans for future development.

A total of 87 units are intended to be built. The currently vacant project site is located north of Hunt Avenue and east of the future extension of Adams Street within the Medium Density Residential (MR) Zoning and (MDR) General Plan districts.

CEQA Determination: Environmental Impact Report
Prepared By: Eric Norris, Planning Consultant
Recommendation:

After considering the project, staff report, supporting documents, technical studies and all testimony, written and spoken, the Planning Commission of the City of St. Helena recommends that the City Council:

1. Adopt the attached Resolution certifying the Final EIR, and approving a Mitigation Monitoring Program, Findings of Fact and Statement of Overriding Considerations; and

2. Adopt the attached Resolution approving the requested Tentative Map No. 2022-001, File #PL10-040 for the Hunter Subdivision project.

Staff Report - Pdf
City Attorney Memo re Flood Liability
Public Comment.Arlene Corsetti 1
Public Comment.Arlene Corsetti 2
Public comment.Carla Holm
Public comment.Isobel Luria
Public comment.Kelly Wheaton
Public Comment.Mary and John West
Public comment.Sandra Lowry
Public Comment. Ann Nevero(1)
Public Comment. Ann Nevero(2)_Attachment
Public Comment. Ann_Nevero(2)
Public Comment.Ann Nevero
Public comment.Clay Timon
Public comment.Elizabeth Green
Public comment.Our Town St Helena
Public comment.Joe McGrath
Public comment.Maria Villegas
Public Comment.Mary Alice Stielau
Public comment.Pat Dell (2)
Public comment.Pat Dell (3)
Public comment.Pat Dell
7 - 673

Public Comment.Reena Kaur 1
Public Comment.Ann Nevero.

Public comment.Maria Villegas.

Public Comment.Reena Kaur 2
Public Comment.Reena Kaur 3
Public Comment.Reena Kaur 4
Public Comment.Reena Kaur 5
Public Comment.Reena Kaur 6
Public Comment.Reena Kaur 7
Public Comment.Reena Kaur 8
Public comment.Grace Kistner
Public comment.Holland and Knight LLP
Public comment.Maria Villegas - extension
Public comment.Maria Villegas 4
Public Comment.James Wickesberg
Public comment.Joshua Devore 2
Public Comment.Kathleen Guneratne
Public comment.Kevin Bradley
Public Comment.Marija Jovanovic
Public Comment.Nicole and Scott Dale
Public Comment.Pat Kenealy
Public Comment.Sherri Kelly
Public Comment.Water Audit California
Response to Public Comment.Eric Norris
Public Comment. Joshua Devore 1
Public Comment.Angela Zivkovic 1
Public Comment.Angela Zivkovic 2
Public Comment.Chris Echols
Public Comment.Elizabeth Alderman
Public Comment.Ester Akersloot
Public Comment.Maria Villegas 6
Public Comment.William Sterling 1
Public Comment.William Sterling 2
Public Comment.Laurel Kresk
Public Comment.Maria Villegas 5

5.2. Presentation
Presentation
675 - 730

5.3. Attachments 1-5
Att 1 Hunter FEIR CC Reso for 5-1-23 4-13-23
Att 2 Hunter Subdivision CC Reso for 5-1-23 4-18-23
Att 3 Tentative Map 1-24-23
Att 4 1993 General Plan Consistency Analysis
Att 5 2019 General Plan Consistency Analysis
731 - 883

5.4. Attachment 6a
Att 6a Hunter Draft EIR
885 - 1522

5.5. Attachment 6b through 6d
Att 6b APP A_NOP and Comments Received
1523 - 2044

Att 6c APP B_LESA Model
Att 6d APP C_CalEEMod Results

5.6. Attachment 6e
Att 6e APP D_Biological Resources Reports
2045 - 2109

5.7. Attachments 6f through 6l
Att 6f APP E_ Confidential Hunter Cultural XPI_Ph2
Report_5.15.2020_App B, C, D
Att 6g APP F_Geotechnical Engineering Report
Att 6h APP G_Phase I ESA
Att 6i APP H_Hydrology Report
Att 6j APP I_Noise Model Outputs
Att 6k APP J_Water Neutral Report
Att 6l APP K_HunterSubdivision_TIS_04.06.21a_revNov2022 2111 - 3185

5.8. Attachment 7
Att 7 Final EIR for the Hunter Subdivision Project 1-2023 3187 - 4000

5.9. Attachments 8 through 20
Att 8 Project Site Location Map
Att 9 Project Site Aerial Photo 2022
Att 10 1993 General Plan Land Use Map
Att 11 2000 Zoning Map
Att 12 2018 Zoning Map
Att 13 Project Site Aerial Photo Oct 2009
Att 14 Trail System Map
Att 15 Hunter Subdivision Traffic Analysis Summary 10-10-22 Att 16a Attorney Letter EIR 10-31-22
Att 16b Attorney Letter TM 10-31-22
Att 17 Response to CEQA Comments 1-19-23
Att 18 Response to Subdivision Map Comments 1-26-23
Att 19 Letter from Napa County Bicycle Coalition 11-1-22 Att 20 Response to Bicycle Coalition Comments 1-19-23
4001 - 4041

5.10. Attachment 21
Att 21 Hunter Public Comment from 11-1 Meeting_Combined 4043 - 4222

5.11. Attachments 22 through 26
Att 22 Hunter Public Comment from 2-7 -23
Att 23 Frequently Asked Levee Questions 4-19-23
Att 24 Frequently Asked Questions 4-19-23
Att 25 Holland and Knight 2023-02-02 Correspondence to St. Helena re Unlawful Conditions on Hunter Subdivision
Att 26 DP&F Hunter Subdivision Project Environmental Impact Report File #PL10-040 (002)
4223 - 4388

5.12. Attachments 27 through 32
Att 27 DP&F Hunter Subdivision Project Tentative Map No. 2022-001 File #PL10-040
Att 28 Response to DFP 2-6-23 Letter EIR 4-17-23
Att 29 Response to DFP 2-6-23 Letter Tentative Map 4-17-23 Att 30 NCBC Letter 2-7-23
4389 - 4422

Att 31 Response to NCBC 2-7-23 Letter 4-17-23
Att 32 Memo re Flood Liability

6. ADJOURNMENT
The next Regular City Council meeting is scheduled for May 9, 2023, at 6:00 p.m.

This agenda was posted at City Hall, 1088 College Avenue, and at Vintage Hall, 465 Main Street, St. Helena, California on April 21, 2023.

Cindy Tzafopoulos, City Clerk
In Compliance with the Americans with Disabilities Act, if you need special assistance to participate in this meeting, please call the City Clerk’s Office (707) 967-2792. Notification 72 hours prior to the meeting as required by Section 202 of the Americans with Disabilities Act will enable the City to make reasonable arrangements to ensure accessibility to this meeting.

Any supplemental writings or documents distributed to a majority of the City Council regarding any item on this Agenda, after the posting of the Agenda, will be available for public review in the City Clerk’s Office located at 1572 Railroad Avenue, St. Helena, California, during normal business hours and by appointment. In addition, such writings or documents will be made available on the City’s web site at https://sthelena.civicweb.net and will be available for public review at the respective meeting.

Report to the City Council
Special City Council - 01 May 2023
Agenda Section: PUBLIC HEARING:

Subject: Request by Ben and Kelly Van Zutphen to subdivide a 16.9- acre parcel to establish 51 single-family residential lots, 11 of which are proposed with accessory dwelling units on
approximately 13.4 acres. A 3.13-acre parcel will be
established to accommodate a 25-unit multi-family housing development. Two additional remnant parcels (Parcel A; 0.06 acres) and (Parcel B; 0.04 acres) will remain with no plans for future development. A total of 87 units are intended to be built.

The currently vacant project site is located north of Hunt Avenue and east of the future extension of Adams Street within the Medium Density Residential (MR) Zoning and (MDR) General Plan districts.

CEQA
Determination:

Environmental Impact Report
Prepared By: Eric Norris, Planning Consultant
Reviewed By: April Mitts, Assistant City Manager
Approved By: Anil Comelo, City Manager

BACKGROUND
The following is a discussion of the project’s setting and background. 1993 General Plan
The subject property has been designated since at least 1993 for development with Medium Density Residential homes. The 1993 General Plan land use map designates the property for Medium Density Residential (MDR), which is described as follows in the 1993 General Plan:

The MDR designation provides for single-family detached and attached homes, secondary residential units, public and semi-public uses, and similar and compatible Agenda Item #5.1.

uses. Residential densities shall be in the range of 5.1 to 12.0 dwelling units per gross acre. The MDR designation is the predominant residential designation, occurring throughout large areas of the City. The wide distribution of this designation is intended to maintain a development pattern in newly developing areas that is consistent with historic development patterns.

As discussed later in this report, the proposed subdivision was submitted and accepted as a complete application (that is, ready for staff review and analysis) in 2011, when the 1993 St Helena General Plan was in effect. Although the 1993 General Plan was replaced in 2019 by the current General Plan (the “2019 General Plan”), the 1993 General Plan is used in this report because state law regulating the review of subdivision maps mandates the use of the Plan that was in place when an application was filed. A discussion of the proposed subdivision’s consistency with the General Plan adopted in 2019 is included later in this report for informational purposes.

Zoning
At the time that application for the proposed subdivision was accepted as complete, the zoning for the site, as shown on the City’s Zoning Map, was Medium Density Residential (MR). The current zoning designation is the same. The Zoning Map as it existed in 2011 and in its current form are both attached to this report.

The MR zoning district provides for single-family detached homes, accessory dwelling units, limited agricultural uses and compatible uses.

The Zoning Code (both at the time of application completeness and today) describes the MR zoning district as follows:
“The MR district is established for consistency with the medium density residential general plan designation. The district provides for single-family detached homes, accessory dwelling units, limited agricultural uses and compatible uses. Residential densities shall not be less than 5.1 dwelling units per acre nor more than sixteen (16) dwelling units per acre.” [Zoning Code 17.40.010]
Municipal Code Section 17.40.060 (Development Standards) establishes the standards for lots:
• Minimum lot area: 7,000 square feet
• Minimum lot width and frontage: 70 feet
• Minimum density: 5.1 units per acre
The parcels proposed for single-family residential lots range in size from 7,000 square feet to 12,814 square feet. All proposed lots meet the minimum depth and width requirement of 70 feet.

Agenda Item #5.1.

The MR district allows a minimum density of 5.1 dwelling units per acre up to a maximum of 16 dwelling units per acre. The Tentative Map would accommodate at least 87 units on a 16.9-acre site resulting in a proposed density of 5.15 dwelling units per acre in compliance with the MR district minimum density requirement.

All other applicable standards related to the siting and development of the proposed structures, including lot coverage, floor area ratio, and structure height and setbacks, will be reviewed for compliance when the proposed dwelling units are submitted to the City for design review and a conditional use permit (for the multi-family homes).

PROJECT PROCESSING HISTORY
It is important to note that although this site has remained an undeveloped parcel, it has been designated for residential development since at least 1993 (see General Plan discussion).
2010: Application Submitted
On September 9, 2010, the applicants, Ben and Kelly Van Zutphen, applied to the City to subdivide an approximately 17-acre parcel of land in the eastern area of the city, east of the existing terminus of Adams Street. The proposed subdivision would create lots for 51 single-family homes and 11 accessory dwelling units, and a 52nd lot on which at least 25 multi-family housing units would be built. Several rounds of review and revisions transpired over the course of the next six months.
2011: Application Complete/1st EIR Process Begins
On March 25, 2011, a completeness letter was issued by the City to the applicants along with a request for additional information related to the existing well and site drainage. The Planning Commission held a “pre-scoping” meeting on July 19th to review the Initial Study and gather public comments. On August 6th, the Planning Commission held a second “pre-scoping” meeting and directed the Planning Department to issue a Request for Proposals (RFP) for the project’s Environmental Impact Report. On December 6th, the Planning Commission held a public scoping meeting for the project EIR. 2012: Draft EIR #1 Released for Public Review
On March 19, 2012, the Notice of Preparation for the Draft EIR #1 was circulated. The Draft EIR was released on March 29th for public and agency review with the initial comment period scheduled to end on July 13th, then extended an additional 45 days to end on September 4th, with a Draft EIR public comment meeting held on August 28th. 2013: Planning Commission Considers Draft EIR #1
Urban Planning Partners (consultants contracted to prepare the Draft EIR) commenced preparation of responses to comments in January of 2013. On September 17, 2013, the Planning Commission considered certification of the Final EIR. The item was presented to the Planning Commission then continued to a future date but was not acted on.

Agenda Item #5.1.

Following the Planning Commission meeting and continuance of the item, additional information was submitted to the City that included a re-design of the intersection of Pope Street and the Silverado Trail. This re-design resulted in the requirement for additional CEQA analysis of the project EIR.
2014 - 2015
No significant progress was documented for the project or the project EIR in the years 2014 to 2015.
2016: Draft EIR #1 Revised
Urban Planning Partners completed revisions to the Draft EIR and resubmitted to the City in approximately the middle of 2016. DEIR revisions resulted in request for information regarding water use and affordable housing provisions for the Tentative Map. On October 3rd, City staff requested additional information and funding from the applicant. Staff met with the applicant on December 20th to discuss the details of the request for additional information and funding.
2017: Draft EIR Consultant Quits; New EIR Consultant
On April 21, 2017, the project applicant provided some requested information but did not provide additional funding until May 2017. On May 19th, Urban Planning Partners declined to complete the project EIR and officially confirmed resignation on June 29th.

City staff sent requests for consultation services to three planning consulting firms on the City’s approved Master Services Agreement list. None of the firms replied to the request for services and on September 14th, the City issued a Request for Proposals soliciting proposals from qualified environmental consultants for the preparation of an EIR for the project. On December 12th, Dudek is contracted to complete the project EIR. 2018: Preparation of EIR #2 Begins/Revised Map and Info Submitted On March 6, 2018, the city issued a new Notice of Preparation, and the public comment period is initiated, followed by a public scoping meeting held on March 12th. The public comment period ends on April 13th. On August 3rd, the applicant submitted a revised tentative map and supporting documentation, with the subdivision design remaining largely unchanged.
2019: Revised Map and Info Submitted
On February 1, 2019, the applicant submitted an updated tentative map, a proposed Affordable Housing Agreement, and additional technical studies. The applicant was contacted on September 4th and informed that further work on the project application and EIR will not commence until unpaid balances are remitted to the City. On November 26th, the City approved an augmented budget for Dudek to complete additional technical work for the project EIR following payment from the applicant. 2020: EIR Preparation Continues
Agenda Item #5.1.

On March 16th, augmentation of the Dudek budget was approved for the completion of a Vehicle Miles Travelled (VMT) study, General Plan Goals and Policies update, and Wildfire analysis to include in the project EIR.
2021: Draft EIR #2 Circulates for Public Review/Response to Comments Begins On February 9, 2021, the Dudek budget was approved for augmentation again to include a second Administrative Draft EIR, second Screen-check DEIR, and Final EIR preparation. On April 27th, Interwest was contracted by the City to provide planning services and manage the processing of the project. The City held a public comment period on the second Draft EIR from September 23rd to November 8th (45 days); with the comment period later extended to November 30th (67 days total) due to the volume of comments received and requests for additional time from commenters. Dudek began preparation of responses to comments in December.
2022: Response to Comments on EIR #2 Continues/Staff Report Prepared On April 12, 2022, Dudek requested additional funding to complete the project FEIR. The City prepared a Professional Service Agreement (PSA)to facilitate a sewer line capacity study on April 22nd in response to technical comments raised as part of the Draft EIR public review. The staff report package for Planning Commission is prepared for the November 1, 2022 meeting.

In response to numerous requests from the public for additional time to review the staff report package, the November 1, 2022, Planning Commission meeting was cancelled.

The meeting was subsequently rescheduled for February 7, 2023; the staff report package was updated and republished, and new public hearing notices were published and mailed. In response to comments on one aspect of the traffic analysis for the proposed project, a typographical error in the Traffic Impact Analysis was made and the Final EIR was amended to include this change.

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

Approval of the tentative subdivision map is the first necessary but not final step for the subdividing of the property; future discretionary applications would define the design of the development that would take place on the lots created by the subdivision.

Including the ADUs, the project as currently envisioned by the applicant would have 87 homes, which is the minimum number of homes that can be built on the site per its existing General Plan and Zoning designations. A summary of the currently proposed residential units is shown below:

Agenda Item #5.1.

Single Family Homes: 51 units Attached
Multi-Family: 25 units
Accessory Dwelling Units: 11 units
TOTAL: 87 units
The overall residential density of the project, including all residential types, is 5.15 units per acre (87/16.9 = 5.15).

Each of the single-family lots would be at least 7,000 square feet in size, with larger corner lots and cul-de-sac lots.

As part of the first phase of construction, infrastructure to support the proposed project would be developed, including:
• Storm drain, and sanitary sewer facilities will be constructed per City standards.

All lots have been designed to drain to the street.
• Per the General Plan Circulation Element, Starr Avenue will be extended through the project area across an existing City-owned parcel, and Adams Street will be extended eastward to connect with Starr. Internal roadways would be constructed. All streets have been designed according to the City standards. Starr Avenue and Adams Street will also include on-street bicycle lanes.

An existing well will be preserved on proposed Parcel B and connected to an on-site “purple pipe” water distribution system to provide all landscape irrigation and outdoor needs (car washing, etc.) throughout the project site. The well and onsite water system would be owned and maintained by a homeowners association.

The “panhandle” potion of Lot 52 will be landscaped and maintained by the property owner.

If the proposed Tentative Map is approved, prior to any construction occurring, the project will also require approvals by the City Council of a Final Map, an Affordable Housing Agreement, Design Review approval by the Planning Commission for the proposed single-family homes and a Conditional Use Permit for the development of the proposed multi-family homes. Public meeting notices will be sent for all future hearings. These applications are not being considered at this time but will be submitted and reviewed at a future date.

Also, a small portion of lot #51 (see Attachment 3) is located on City-owned property, currently intended as part of the right of way of Adams Street. A proposed condition of approval requires that this property be vacated and transferred to the applicant prior to recordation of the Final Map.

Agenda Item #5.1.

DISCUSSION

ANALYSIS
Tentative Maps are governed by Section 16.16 of the St Helena Municipal Code (SHMC), as well as the California Subdivision Map Act. Specifically, Sections 16.16.060 (Planning Commission action) and 16.16.070 (City Council action) require the proposed Map to be first presented to Planning Commission for review and recommendation to City Council.

Section 16.16.080(A) defines the findings that must be made for the Planning Commission to recommend approval of a tentative map. While there are a number of concerns that have been expressed by the community, a Tentative Map may only be denied if it is found to be inconsistent with the findings below (from Section 16.16.080 of the St Helena Municipal Code):

A. In recommending approval or conditional approval or in approving or conditionally approving a tentative map, the planning commission and city council shall find:

1. That the proposed subdivision, together with the provisions for its design and improvement, is consistent with the general plan, any applicable specific plan, and other applicable provisions of this code; and

2. Except for condominium conversion projects where no new structures are added, that the design of the proposed subdivision provides, to the extent feasible, for future passive or natural heating or cooling opportunities in the subdivision, as described in the state Subdivision Map Act and any guidelines promulgated by the city council.

In addition, the proposed subdivision is a “housing development project” as defined by State law, and in recent years the State legislature has passed legislation that significantly restricts the grounds pursuant to which a housing development project can be denied.

Specifically, Government Code Section 65589.5(j)(1) provides that if a housing development project complies with applicable objective general plan, zoning, and subdivision standards and criteria in effect at the time the application was deemed complete, the City may only deny the project if it finds, based on written findings supported by a preponderance of the evidence in the record that both of the following conditions exist:

1. The housing development project would have a specific, adverse impact upon the public health of safety unless the project is disapproved or approved upon the condition that the project be developed at a lower density. As used in this paragraph, a "specific, adverse impact" means a significant, quantifiable, direct, safety standards and unavoidable impact, based on objective, identified written public health or safety standards, policies, or conditions as they existed on the date the application was deemed complete.

2. There is no feasible method to satisfactorily mitigate or avoid the adverse impact identified pursuant to paragraph (1), other than the disapproval of the housing Agenda Item #5.1.

development project or the approval of the project upon the condition that it be developed at a lower density.

Other, more general policy considerations not related to these findings or to consistency with the General Plan (such as the other concerns expressed by the public) should not be cited in a recommendation to approve or deny the proposed subdivision.

The following sections describe staff's analysis of each of the findings required for approval of a tentative map, which staff recommends can be made. 1993 General Plan Consistency
Because the application for the proposed subdivision was deemed complete by the City in 2010, at a time when the City’s 1993 General Plan was in place, the 1993 General Plan was used to determine “… consistency with the general plan.” Staff’s review of applicable policies from the 1993 General Plan is included as Attachment 4 to this staff report. Staff’s recommendation is that the proposed subdivision is consistent with all applicable 1993 General Plan policies.

Although consistency with the General Plan adopted in 2019 (the “2040 General Plan Update”) is not part of the determination of General Plan consistency, an analysis has been prepared by staff and is included as Attachment 5 to this staff report. The conclusion of staff’s analysis is that the proposed project is also consistent with the current (2019) General Plan.

Specific Plan Consistency
The proposed subdivision is not located in a Specific Plan area.

Zoning Code Consistency
For the purposes of the proposed subdivision map, consistency with “… other applicable provisions of this code” is determined by reviewing the map in relation to the density and lot standards for the MR zoning designation.

Other portions of the Zoning Code or the St Helena Municipal Code which deal more specifically with development projects (that is, the construction of homes and other structures) are not relevant to the consistency of the subdivision map, which is the only application being considered at this time. Those separate findings, where needed, would be made at the time subsequent applications are submitted to the City.

As noted earlier in this report, Municipal Code Section 17.40.060 (Development Standards) establishes the standards for lots in the MR zoning district:
• Minimum lot area: 7,000 square feet
• Minimum lot width and frontage: 70 feet
• Minimum density: 5.1 units per acre
Agenda Item #5.1.

Based on a review of the proposed subdivision, staff recommends that the map complies with and is consistent with these standards:
• All proposed residential lots1 are at least 7,000 square feet in size • All proposed residential lots are at least 70 feet in width • The overall density of the project, including the proposed 25 multi-family homes on Parcel 52 and the proposed 11 accessory dwelling units, is 5.15 units per acre, which meets the minimum required density.
(1. Non-residential lots, such as the lot containing the existing well, are not subject to the minimum standards and are not included in this analysis.) Design for Passive or Natural Heating or Cooling
This standard is described as follows in the State of California Subdivision Map Act:
(b) (1) Examples of passive or natural heating opportunities in subdivision design, include design of lot size and configuration to permit orientation of a structure in an eastwest alignment for southern exposure. (2) Examples of passive or natural cooling opportunities in subdivision design include design of lot size and configuration to permit orientation of a structure to take advantage of shade or prevailing breezes.
(c) In providing for future passive or natural heating or cooling opportunities in the design of a subdivision, consideration shall be given to local climate, to contour, to configuration of the parcel to be divided, and to other design and improvement requirements, and that provision shall not result in reducing allowable densities or the percentage of a lot that may be occupied by a building or structure under applicable planning and zoning in effect at the time the tentative map is filed. [CA Govt Code section 66473.1]
Based on an analysis of the proposed subdivision, staff recommends that the map provides, to the extent feasible, opportunities for passive or natural heating or cooling, as discussed below.
• Approximately 40 of the proposed lots would allow a house oriented in an eastwest configuration, allowing these homes, if properly designed, to take advantage of solar exposure.
• Approximately 40 of the proposed lots would allow for homes oriented so that, if front and rear doors and windows were opened, the prevailing upvalley breeze would provide for natural cooling.
• There is no existing shade on the property, but future homes would be required to install landscaping, including trees that would provide shade.

Agenda Item #5.1.

CEQA
A Notice of Preparation of a Draft Environmental Impact Report (SCH# 2018032014) was prepared and available for public review and comment during the state-mandated 30-day public review period from March 6, 2018, through April 9, 2018. A public scoping meeting was held on March 12, 2018. Concerns raised from public agencies and the public include impacts to the property from potential flooding, traffic and circulation impacts, increased water demand, and impacts to cultural resources.

A Draft EIR was prepared with a 45-public review period beginning on September 23, 2021 and ending on November 8, 2021. Due to the volume of comments, the public review period was extended to November 30, 2021, for a total of 67 days.

The Draft EIR is included as Attachment 6 to this report. The proposed Final EIR, which includes comments on the Draft EIR and responses to comments, is included as Attachment 7. The Mitigation Monitoring and Reporting Program is included in the Resolution in Attachment 1.

One comment received after the publication of the November 2022 Planning Commission agenda package called attention to a minor typographical error in Table 7 of the Traffic Impact Analysis (Appendix K to the Draft EIR) which overstated the project’s impact to the intersection of Silverado Trail/Pope Street. Due to a typographical error, the TIA published with the Draft EIR incorrectly showed a future level of service of “E” at this location; the corrected version shows a future level of service of “C” (the analysis of delay was correct and showed a “LOS C” level of delay). This change is shown in Chapter 3 of the Final EIR, “Changes to the Draft EIR.”
All documents referenced in the EIR are available for inspection upon request.

Topics Addressed in the Draft EIR
The Draft EIR discusses the project's impacts associated with the following topics.

The Draft EIR’s conclusions are discussed later in this report; conclusions of the EIR about the significance of impacts for each topic are shown below. • Aesthetics (Potentially Significant, but mitigation available) • Agriculture and Forest Resources (Less than Significant) • Air Quality (Less than Significant)
• Biological Resources (Potentially Significant, but mitigation available) • Cultural and Tribal Resources (Potentially Significant, but mitigation available) • Energy (Less than Significant)
• Geology and Soils (Potentially Significant, but mitigation available) • Greenhouse Gas Emissions (Less than Significant)
• Hazards and Hazardous Materials (Potentially Significant, but mitigation available) • Hydrology and Water Quality (Less than Significant)
• Land Use and Planning (Less than Significant)
Agenda Item #5.1.

• Mineral Resources (Less than Significant)
• Noise and Vibration (Potentially Significant, but mitigation available) • Population and Housing (Less than Significant)
• Public Services (Less than Significant)
• Recreation (Less than Significant)
• Traffic and Transportation (Significant and Unavoidable) • Tribal Cultural Resources (Less than Significant)
• Utilities and Service Systems (Less than Significant) • Wildfire (Less than Significant)
Alternatives Considered
The EIR evaluated four Alternatives in addition to the proposed project. The four alternatives (described in detail in the Draft EIR) are:
• Alternative 1) No Project/No Development Alternative, described in the Draft EIR as, “… the Proposed Project would not be approved or constructed. Under this alternative, the Project site would retain its current land use designation and zoning consistent with both the 1993 General Plan and the City’s current 2019 General Plan. • Alternative 2) No Project/General Plan, described as, “… the Project would be developed consistent with the underlying MDR land use designation and MR zoning which allows development of the Project site with residential uses up to a maximum density of 12 dwelling units/acre (du/ac) under the 1993 General Plan MDR designation which was revised to 16 du/ac under the 2019 General Plan consistent with the MR zoning, which permits a maximum density of 16 du/ac. For the purposes of this alternative a density of 9 du/ac was assumed for a total of 152 single-family residential units.” • Alternative 3) Park/Open Space Preserve Alternative, described as, “… includ[ing] an approximately 1-acre park/open space that would preserve a majority of the on-site wetlands to help lessen impacts to seasonal wetlands … To accommodate the park three lots would need to be removed … and vegetated swales to capture runoff would be located adjacent to developed areas. … The remaining approximately 16-acres would be developed with approximately the same number of residential units as the Proposed Project and would maintain a density of 5.1 du/ac.”
• Alternative 4) Increased Density/Affordable Housing Alternative, which “... includes the approximately 1-acre park to preserve a majority of the on-site seasonal wetlands with the remaining approximately 16-acres designated for up to 180 affordable housing units, assuming a density of 11.3 dwelling units per acre (du/ac) … The units would be attached housing (duplex or triplex) and would be 100% affordable.” The alternatives are described in detail and analyzed in Chapter 5 of the Draft EIR.

Based on the analysis in the Draft EIR, Alternative 1, the No Project Alternative, would result in the fewest environmental impacts, and is the “environmentally superior Agenda Item #5.1.

alternative.” However, Section 15126.6(e)(2) of the CEQA Guidelines states that if the environmentally superior alternative is the No Project Alternative, the EIR shall also identify an environmentally superior alternative among the other alternatives.

Of the alternatives evaluated, Alternative 3, the Park/Open Space Preserve alternative is the environmentally superior alternative. However, according to the Draft EIR, “… this alternative would not avoid all of the significant impacts associated with the Project and all of the identified mitigation would still be required.” Potentially Significant Impacts
Impacts of potential significance requiring mitigation were identified in the following areas:
• Aesthetics
• Biological Resources
• Cultural and Tribal Cultural Resources
• Geology and Soils
• Hazards and Hazardous Materials
• Noise and Vibration
The Draft EIR concluded that mitigation was available to reduce all of these impacts to a level of Less Than Significant.

A summary listing of all potentially significant impacts and their associated mitigation measures is included in the Executive Summary in the Draft EIR (Attachment 6 to this staff report). Detailed discussions of impacts and mitigation are provided in Section 3 of the Draft EIR.

Significant and Unavoidable Impact: Vehicle Miles Traveled Based on the analysis in the Draft EIR, impacts related to Transportation and Traffic (specifically, Vehicle Miles Traveled or “VMT”) were found to be significant and unavoidable. This impact relates to the number of miles that will be traveled in motor vehicles by persons living in the proposed subdivision (trips to work, school, shopping, etc.). This impact is discussed in detail in Section 3.14 of the Draft EIR.

State law, effective January 1, 2020, requires the local agencies examine this impact and that the impacts of a proposed project on roadway congestion (historically, the standard used by most California cities and counties) is no longer included in an EIR. (The traffic congestion impacts of the proposed project were examined, but for purposes of determining consistency with General Plan congestion policies, this analysis is not included in the Draft EIR.)
The state’s intent in requiring that VMT be projected is to focus efforts statewide on reducing unnecessary vehicle travel, generally by locating homes closer to jobs, shopping, and other daily needs, and by increasing the use of public transit, walking, and Agenda Item #5.1.

bicycling. As discussed in the Draft EIR, reductions in VMT for residential projects like the proposed project in semi-rural areas are difficult to achieve.

Compared to a commercial development, which could implement ride-sharing programs, residential projects have few options available to effectively reduce vehicle travel; none are available to reduce VMT for the Hunter subdivision enough to reduce this impact to a level of Less Than Significant.

For this reason, the Draft EIR concluded that this impact is Significant and Unavoidable.

Statement of Overriding Considerations
State law provides a means for the approval of a project which is identified to have one or more significant impacts. To do so, the local agency must adopt a Statement of Overriding Considerations which provides the reasons why the agency feels that the benefits of the project outweigh (or “override”) the potential impacts. A Statement of Overriding Considerations has been prepared (included in Attachment 1 to this report) which provides the following reasons why approving the project is appropriate:

1. The Project provides needed housing to the City, particularly affordable housing.

2. The City, per the adopted 2015 Housing Element, has a jobs to housing ratio above the County average, indicating a need for additional housing. As of the most recent Housing Element Progress Report (April 2022), the City had not met its regional housing needs allocation for very-low or moderate income housing.

3. The Project would implement the City’s General Plan. The Project site is identified as a housing site in the City’s current General Plan, the current Housing Element, and the previous two iterations of the City’s General Plan.

4. The significant and unavoidable impact is related to VMT. Ultimately VMT per capita will be reduced by providing necessary housing in jurisdictions with a high number of jobs. As stated previously, the City of St. Helena currently has a jobs housing imbalance which the Project will help address.

5. The Project will pay development fees which will assist in needed infrastructure improvements in the City, including wastewater treatment and collection systems.

6. The Project would construct the extension of Starr Avenue and the partial extension of Adams Street consistent with the General Plan Circulation Element.

The Statement of Overriding Considerations concludes,
The City Council hereby declares that the foregoing benefits provided to the public through the approval and implementation of the Project outweigh the identified significant adverse environmental impact of the Project that cannot be mitigated. The City Council finds that each of the Project benefits separately and individually outweighs all of the unavoidable adverse environmental effects identified in the EIR and therefore finds those impacts to be acceptable.

Public and Agency Comments on the Draft EIR
Agenda Item #5.1.

A total of 121 Draft EIR comment letters were received from the 2021 public review and Response to Comments were prepared and included in the Final EIR. Notification of the availability of the Final EIR was sent to the agencies, organizations, and individuals that provided comments. Topics addressed in the comments include:
• Concern about the capacity of downstream sewer lines to accommodate additional flows generated by the project.
• Concern about the “high density” of the proposed project. • Concern about the loss of open space and the ability to walk on informal trails located on the project site.
• Concern about projected water use and the ability of the project to feasibly comply with the City’s water neutrality requirement.
• Concern about future traffic congestion and traffic safety impacts (including for children walking to school).
• Concern about the project’s impact on the ability of residents in the Vineyard Valley mobilehome community to evacuate in the event of an emergency. • Concern about the ability of the City-constructed levee on the Napa River (built to protect the Vineyard Valley mobilehome community from flooding) to protect new homes in the proposed project.
• Concerns about changes to the appearance of the project site when existing open space and vines are replaced with a suburban neighborhood. • Concerns about the project’s effect on the City’s plans to construct a new roadway connection to the Silverado Trail.

Responses to all of the comments received during the public review period are included in the Final EIR and Responses to Comments, Attachment 7 to this staff report.

Based on thorough review of the comments by City staff, legal counsel, and the EIR consultant, none of the comments or responses raised any issues which would require recirculation of the Draft EIR. Attachment 7 includes a list of minor errata changes to the Draft EIR which were included in the responses to comments.

Mitigation Monitoring and Reporting Plan
A Mitigation Monitoring and Reporting Program was prepared for the potential impacts that require mitigation and is contained in the Executive Summary, Section ES.6 of the Draft EIR. Findings for Certification of the Environmental Impact Report and adoption of the Mitigation Monitoring and Reporting Program, and approval of Tentative Map File #PL10-040 are contained in the Resolution prepared for this project.

Revised Conditions of Approval
Following the publication of the November 2022 Planning Commission package, City staff and the applicant have discussed a number of changes to the proposed conditions of approval requested by the applicant. Staff ultimately agreed to some of the requested changes, but disagreed with others, as shown below.

Agenda Item #5.1.

Changes agreed to or rejected by staff are shown below; condition numbers reflect the updated conditions of approval as included in the Resolution approving the Tentative Map (attachment 2 to this report). The updated conditions of approval are included in the proposed Resolution approving the Tentative Map.

On February 7, the Planning Commission was also presented with changes to conditions of approval #85, #89 and #90. The Commission recommended that these changes, discussed below. be included in the final conditions of approval.

Conditions Revised
The following conditions of approval reflect changes requested by the applicant and make minor changes suggested by City staff to reflect standard City procedures. The final conditions are shown below, followed by a discussion of the changes made.

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

COA #22 was revised to require that the owners of Lot 52 are part of a HOA or other funding mechanism, and to allow flexibility in the type of funding mechanism established to maintain common areas, the internal irrigation system, and the well on Parcel B.

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

COA #26 was revised to show a requirement to “meet or exceed” Title 24 Energy Efficiency Standards (prior version required exceedance, which is not consistent with City practice).

COA 27: All City, state, federal and other applicable local ordinances, rules, regulations and policies in effect at the time of issuance of a grading or building permit shall be complied with.

This is a new condition of approval which is typically applied to development projects and inadvertently not included in earlier versions of the conditions of approval.

COA 32: Mechanical equipment, including heating and air conditioning units and spa equipment, shall be located away from property lines and shall be shielded or enclosed Agenda Item #5.1.

to minimize noise levels. Noise generated shall not exceed 60 dBa, Ldn. This condition of approval implements Mitigation Measure NOI-1 from the project environmental impact report, Chapter 8.24 of the St Helena Municipal Code, and noise-related policies of the St Helena General Plan, including policy 8.3.11 from the 1993 General Plan and policy PS2.4 from the 2019 General Plan. [Note: Formerly numbered as COA #31; renumbered due to the insertion of COA #27]
COA #32 was revised to add reference to the sources for the requirement to place HVAC units to minimize noise levels.

COA 36: Prior to recordation, the Final Map shall be designed per City standards to the satisfaction of the Public Works Director to accommodate the following facilities in the right of way of both Starr Avenue and Adams Street:
• Curb and Gutter in accordance with City Standard #310 for a 24” gutter. • Sidewalks, either attached to the curb or detached from the curb, on both sides of the street along Starr Avenue, and only on the south side of Adams Street, in accordance with City Standard #315
• Parking lane on both sides of the street in accordance with City Standard #301 for a “Collector” street.
• Class II on-street bike lane on both sides of the street in accordance with Caltrans’ • Highway Design Manual Index 1003.2 but not less than 5 feet wide. • Two vehicle travel lanes in accordance with City Standard #301 for a “Collector” street.
• Striping to delineate parking, bike, and travel lanes. [Note: Formerly numbered as COA #35; renumbered due to the insertion of COA #27]
COA #36 was revised to clarify that City Standard #315 (see the second bullet item) allows the sidewalk to be either attached to the curb or separated from the curb by a parkway strip. This COA was also revised to indicate that “City standards” would be used to determine the design of the facilities shown on the Final Map.

COA 41: All public facilities damaged by construction activities shall be the responsibility of the Applicant and shall be repaired per City standards to the satisfaction of the City at the Applicant’s expense. [Note: Formerly numbered as COA #40; renumbered due to the insertion of COA #27]
COA 41 was revised to indicate that City standards will be used to determine whether repairs have been completed correctly.

COA 48: Except for the existing well on Lot 19 of the Tentative Map that will be providing irrigation water to this development, all existing wells, septic tanks and/or underground fuel storage tanks shall be abandoned under permit and inspection of Napa County Department of Environmental Health. If applicant determines that there are none, prior to the issuance of a grading permit, the project engineer shall provide a letter describing Agenda Item #5.1.

the scope of the search done to make this determination and demonstrating, in a manner consistent with City standards and proper engineering practices and to the reasonable satisfaction of the City Engineer, that there are no other existing wells, septic tanks and/or underground fuel storage tanks within the boundaries of the Tentative Map. [Note:

Formerly numbered as COA #47; renumbered due to the insertion of COA #27] COA 48 was revised to refer include, “… in a manner consistent with City standards and proper engineering practices” as the standard for verifying compliance with this condition of approval.

COA 66: Street A: Prior to the issuance of a Certificate of Occupancy, Street A shall be improved to include two 10 ft. travel lanes, two 8 ft. parking lanes, curbs, gutters, a 6 ft. planter strips and 4 ft. sidewalk on the south side of the road and a 10-foot distance from the face of curb to the right-of-way line on the west side of the road. The total right-ofway width shall be 56 feet. The area between the curb and the right-of-way line on the west side of the street shall be graded such that it can be passable by pedestrians (cross slopes should not exceed 5%). The structural section of the street shall be per recommendations contained in the Soils Report. [Note: Formerly numbered as COA #65; renumbered due to the insertion of COA #27]
COA #66 has been revised to require two 10-foot-wide travel lanes in Street A, rather than 12-foot-wide lanes. This was done to conform with City standards for local streets.

COA 69: Access from Lot 52 to Starr Avenue shall be for EVA and pedestrian purposes.

Ownership of this parcel shall be the same as Lot 52, or the access point shall be made part of Lot 52. [Note: Formerly numbered as COA #68; renumbered due to the insertion of COA #27]
COA #69 has been revised to eliminate specific requirements for the width of Lot 52 while maintaining its use for emergency vehicle access and pedestrian use.

COA #85. The proposed well and appurtenances (pump, etc.) for this development shall be owned and operated by the Homeowner’s Association for this development. The well shall supply irrigation water for all landscaping of common areas and on all lots within the subdivision to limit use of domestic water produced by the City. Signage shall be provided on each lot warning of the use of well water and that the well water shall not be used for domestic purposes. Piping for all irrigation water from the well shall be purple pipe (same as used for recycled water). Also, disclosure statements (either through disclosures as required by the Department of Real Estate or on the final map) shall be provided to all property owners notifying them about use of well water and statements warning that well water should not be used for domestic purposes. If the City’s reclaimed water system becomes available at the project site, the onsite irrigation system shall be connected to the reclaimed water system and the well shall be permanently closed. [Note: Formerly numbered as COA #84; renumbered due to the insertion of COA #27] Agenda Item #5.1.

COA #85 has been added to require that the onsite irrigation system be connected to the City’s reclaimed water system when it is available at the site, and that the onsite well be closed at that time.

COA 87: Prior to the issuance of the first building permit, all City-required improvements related to storm water for the project shall be installed by the project developer at its expense. Drainage improvements shall be designed and funded by the developer in accordance with the Design Criteria utilizing the rationale method and any applicable adopted City drainage plans. [Note: Formerly numbered as COA #86; renumbered due to the insertion of COA #27]
COA #87 has been revised to clarify the timing of this condition, and to state that the developer is responsible for installing improvements as required by the City and the developer’s expense.

COA 89: Prior to the issuance of the first building permit, the applicant shall submit for review and approval, drainage plans and hydraulic calculations prepared by a Registered Civil Engineer. The drainage plans and calculations shall indicate the following conditions before and after development:
•Quantities of water, water flow rates, major water courses, drainage areas and patterns, diversions, collection systems, flood hazard areas, sumps and drainage courses. [Note:

Formerly numbered as COA #88; renumbered due to the insertion of COA #27] COA #89 includes a minor wording change (“Prior to issuance of the first building permit…”) to clarify the timing of this condition.

COA 90: Post-Development storm water discharge from parcel 009-030-057 shall not exceed the pre-development discharge including the projected build-out, expressed as a 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. [Note: Formerly numbered as COA #89; renumbered due to the insertion of COA #27]
COA #90 has been revised to clarify that post-development stormwater “leaving the site” must not exceed specified levels (which assume development of the site) and that the applicant provide an analysis to confirm this level.

COA #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 on-site and/or off-site drainage improvement, 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 Agenda Item #5.1.

means of reimbursement from the City. [Note: Formerly numbered as COA #90; renumbered due to the insertion of COA #27]
COA #91 has been revised to provide for potential reimbursement by the City for the cost of downstream flood control improvements built by the applicant.

COA 93: Prior to Final Map recordation, the developer shall obtain a construction easement from the City over Parcel 009-030-019 to construct the drainage improvements, wall, and fence on lots 5-20. The drainage ditch on Lots 5-20 shall be privately owned and maintained. [Note: Formerly numbered as COA #92; renumbered due to the insertion of COA #27]
COA #93 has been revised to clarify that the City of St Helena is the owner of the parcel over which a construction easement is needed, and that individual homeowners will be responsible for maintaining a future drainage ditch on their lots.

COA 98: Prior to approval of the final map, the developer shall either complete required improvements in accordance with the approved improvement plans or enter into a Subdivision Improvement Agreement with the City. A certificate of occupancy shall not be issued for any structure until required improvements are completed consistent with City standards to the satisfaction of the City Engineer. [Note: Formerly numbered as COA #97; renumbered due to the insertion of COA #27]
COA #98 has been revised to indicate that City standards will be used to determine whether improvements have been installed correctly.

COA 108: All streets, curbs, gutters, sidewalks or other public facilities damaged in the course of construction associated with this development shall be the responsibility of the Developer and shall be repaired per City standards to the satisfaction of the City at the Developer’s expense. [Note: Formerly numbered as COA #107; renumbered due to the insertion of COA #27]
COA #108 has been revised to indicate that City standards will be used to determine whether repairs have been completed correctly.

COA 110: Dust control must be maintained per City standards to the City’s satisfaction. [Note: Formerly numbered as COA #109; renumbered due to the insertion of COA #27] COA #110 has been revised to indicate that City standards will be used to determine whether dust control have been maintained correctly.

COA 111: A certificate of occupancy shall not be issued for any structure until required improvements are completed per City standards to the satisfaction of the City Engineer. [Note: Formerly numbered as COA #110; renumbered due to the insertion of COA #27] Agenda Item #5.1.

COA #111 has been revised to indicate that City standards will be used to determine whether improvements have been installed correctly.

COA 119: Prior to the issuance of a Certificate of Occupancy, the developer is responsible for fire hydrants to be included and installed within the development in compliance with City standards (number, location and spacing) to the satisfaction of the Fire Department.

Locations of the fire hydrants shall be approved by the Fire Department prior to approval of the final map. [Note: Formerly numbered as COA #118; renumbered due to the insertion of COA #27]
COA #119 has been revised to indicate that City standards will be used to determine whether fire hydrants have been placed and installed correctly.

Conditions Not Revised As Requested by the Applicant
The applicant requested the following changes, which were not agreed to by staff:

COA 73: The applicant requested to include a dollar cap on the cost of improvements that will be installed at his expense to achieve water neutrality. Staff’s position is that improvements to achieve the required reduction in overall domestic water use must be installed to achieve water neutrality, regardless of cost.

COA 88: The applicant requested deleting this condition. Staff disagreed, but did agree to minor wording changes, as discussed above.

COA 90: The applicant requested that this condition be deleted, and that postdevelopment stormwater flows leaving the site be allowed to increase. Staff disagreed, pointing out that the applicant agreed as part of the settlement of a lawsuit with the City not to protest requirements to install the improvements required by this condition.

COA 91: The applicant requested that this condition be deleted. Staff disagreed; this requirement to provide detailed hydrological analysis of proposed stormwater systems is a standard requirement for all development projects.

Tentative Map Updates
To respond to comments received since the publication of the November 2022 Planning Commission package, the updated proposed tentative map includes the following minor changes:
• Lot 52 now shows conceptual grading and elevation and indicates that the proposed use is “Multi-Family Residential”.
• A note has been added to Sheet 4 including condition of approval #35 in its entirety to clarify changes that must be made to accommodate pedestrian and bicycle facilities in the public right of way prior to recordation of a Final Map. • The property owner’s name has been updated to “White Fang Properties, LLC,” to reflect a change in ownership that occurred in October 2022.

Agenda Item #5.1.

OTHER PROJECT ISSUES
Based on public input and prior review of the project, the following are issues of concern to the public, but not necessarily related to the approval at hand. • Water Neutrality
• Trail/Open Space
• Levee/Flooding
• Parking
• Aesthetics
• Sewer Capacity
• “High Density” Nature of the Project
• Traffic/Congestion
• Intersection Design Adams Street/Starr Avenue and Starr Avenue/Street A • Vacation of City Property
These issues are discussed below.

Water Neutrality
The issue of Water Neutrality and the project’s ability to comply with the City’s requirement for no net increase in demand for domestic water, is addressed in detail in Master Response #2 to the comments on the Draft EIR.

In summary, the Draft EIR concluded that a variety of measures (detailed in Appendix J to the Draft EIR) are available that would either decrease water demand or increase the efficiency of the City’s water system so that the additional demand created by the proposed project would be offset and overall citywide demand would not increase. The Master Response also notes that the use of the onsite water well for irrigation and other outdoor uses is part of the overall strategy to reduce water demand for the project.

A condition of approval is also included requiring the applicant to identify and implement specific water system improvements to achieve water neutrality prior to issuance of any building permits.

Trail/Open Space
Many commenters expressed concern about how the project would affect their ability to use the portion of the existing public Napa River Trail system adjacent to the project site.

As noted in the responses to comments on the Draft EIR on this topic, the Final EIR includes this statement:

The Project does not propose removing the existing trail or levee maintenance road, as explained in Section 3.12, Public Services and Recreation on page 3.12-17 and on page 2-23 in Chapter 2, Project Description.

Agenda Item #5.1.

The trail system is located entirely outside of the proposed project and would not be affected by the proposed project. An illustration of the existing trail in relation to the proposed subdivision is included as Attachment 14 to this staff report.

Levee/Flooding
Many commenters expressed concern about various issues associated with the Cityconstructed levee adjacent to the project site. These include:
• Questions about the engineering standards and requirements used to design and construct the levee.
• Whether the levee was constructed or inspected by the U.S. Army Corps of Engineers.
• Whether the levee would adequately protect the project site. • Whether the capacity of the City-owned flood basin adjacent to the project site would be affected by the proposed project to the extent that its capacity would be exceeded.
• Whether the City is properly maintaining the levee, including controlling rodents whose burrows could affect the integrity of the levee.
• Whether climate change could cause changes in flooding that would affect the ability of the levee to protect the project site.

Detailed responses to these concerns are provided in Master Response #3 to comments on the Draft EIR. Very brief summaries of the more detailed information in the Master Response include:
• The levee was designed and built by the City to meet US Army Corps of Engineers (USACOE) standards. Numerous levees throughout the US are built by local agencies in the same; not all levees are built by the USACOE.
• The levee was designed to provide protection from a “200-year” flood on the Napa River (a flood event which would be expected to occur once every 200 years, or with a 1- in-200 chance of occurring in any given year). This exceeds the usual 100-year standard. • The adjacent flood basin was designed to accommodate storm flows from the subdivision, and assumed more paved and developed area (and, therefore, more storm flows) than would be expected from the project as now proposed. The basin can handle storm flows from the proposed project.
• The City is properly maintaining the levee, including rodent control. Maintenance records are available online and at city hall.
• Because the levee was designed to accommodate a more severe flooding event than required (200-year vs 100-year), future increases in storm flows in the Napa River (if they occur as a result of climate change) would be handled better than if the levee were designed to minimum 100-year standard.

Additional Levee Comments
Agenda Item #5.1.

Since the preparation of the Master Responses, comments have continued to be received regarding the levee adjacent to the project site and the protection it provides to the project area.

These comments and responses from the Public Works Department are addressed in a “Frequently Asked Questions” document included as Attachment 23 to this staff report.

The City has also received comments asserting that the City would be “strictly liable” for any flooding that could occur either due to overtopping or failure of the levee. Those comments are addressed in a separate memo sent to the City Council by the City Attorney, and included with this staff report as Attachment 32.

Parking
Several commenters expressed concern that the new homes in the subdivision would cause parking on local streets to increase. While the responses to the comments from the perspective of the Draft EIR note that parking is not a CEQA issue which needs to be examined in the environmental document, staff offers the following responses from a planning perspective:
• Any development which takes place in the subdivision will be subject to detailed review to ensure that City parking standards are met. These include required parking for single and multi-family homes, both of which require a combination of covered and uncovered onsite parking.
• Parking on public streets is available to anyone; except where specifically signed, the City does not limit parking on public streets in the vicinity of the proposed subdivision. • Because the project does not contain any features that would tend to attract large numbers of people on a regular basis, staff does not foresee any unusual increases in on-street parking in the vicinity as a result of the proposed project.

Aesthetics
Many commenters expressed concern about the change in appearance of the project site that would occur if homes replaced the existing open fields and vines.

The Draft EIR examines impacts to aesthetics in detail in section 3.1, “Aesthetics/Visual Resources.” A brief summary of the Draft EIR’s conclusions:
• The St Helena General Plan does not designate any specific views that are to be protected, but does provide general policies which seek to, “… [protect] views from streets, parks, and open spaces to vineyards, agriculture, and hillsides.” • The proposed project orients its major streets so that views of surrounding hillsides and open space areas will be retained.
• Future development will be reviewed through the Development Review process, at which time specific home designs and placements will be reviewed by City staff and the Planning Commission to ensure that it complies with City standards.

Agenda Item #5.1.

Sewer Capacity
Many commenters expressed concern about the impact of the proposed project on the capacity of sewer lines downstream of the project, and especially in the Vineyard Valley mobilehome community, where the existing sewer system occasionally overflows during heavy rains (when rainfall essentially “leaks” into the City’s sewer system and therefore increases flows and causes overflows).

This issue is examined in detail in Master Response #4 in the Final EIR, which includes the results of a detailed analysis of sewer capacity. A summary of the detailed Master Response #4:
• Due to the unwanted infiltration of rainwater into the sewer system during storms, the capacity of the sewer lines downstream of the project is occasionally exceeded, causing overflows. This is referred to a “Peak Wet Weather Flows” or “PWWF.” • During dry weather, flows in the sewer lines do not include rainwater, and the capacity of the lines is not exceeded.
• This lack of capacity during PWWF conditions is known to the City, and a future increase in the size of a sewer line downstream of the proposed subdivision has been identified to correct this problem.
• During dry weather conditions, there is sufficient capacity in the downstream sewer line to accept flows from the proposed project without overflowing. • During PWWF conditions, flows from the proposed project would represent 0.5% of the flows in the line. While overflows can be expected in the downstream line until improvements are constructed, adding flows from the proposed project would not increase either the number or the severity of the overflows. • Capacity is available at the City’s sewage treatment plan to handle flows from the proposed project.

The proposed project, the EIR concludes, would not have an adverse impact on the City’s sewer system.
“High Density” Nature of the Project
Several commenters expressed concern about placing a “high density” residential project adjacent to the existing Vineyard Valley mobilehome community. These commenters were apparently opposed to the project.

Staff notes that the Vineyard Valley community, with an overall density of approximately

5.4 dwelling units per acre (based on a review of aerial photography), is slightly more dense (a “higher density”) than the proposed subdivision (5.1 dwelling units per acre).

As noted earlier in this report, the proposed project is at the lowest allowable density in the Medium Density Residential land use category, which ranges from 5.1-12.0 units per acre (1993 General Plan) and 5.1-16.0 units per acre (2019 General Plan).

Agenda Item #5.1.

Based on staff’s analysis, the commenters who expressed concern about a “high density” project are expressing an opinion that is not supported by the actual project density.

These commenters may be supporting a lower planned density of development for the project site, but the project must comply with the minimum density of 5.1 units per acre.

Traffic/Congestion
Many commenters expressed concern about increased traffic congestion as a result of the proposed project. While this impact is not examined the Draft EIR (because changes in state environmental law have removed discussion of traffic congestion from environmental documents), the traffic analysis prepared for the proposed project included an analysis of traffic and congestion impacts.

A brief summary of the results of the traffic analysis is provided in Attachment 15 to this report. The full text of the analysis is in Appendix K to the Draft EIR (Attachment 6 to this report).

Intersection of Adams Street/Street A/Starr Avenue
During staff’s review of the proposed subdivision, concerns were expressed that because the intersections of Adams Street/Starr Avenue and Starr Avenue/Street are relatively close to each other, drivers could face difficulties negotiating the combination of these intersections. A modified design was developed that would end Street A at a cul-de-sac which would be open only to emergency vehicles, eliminating one of the intersections and simplifying the traffic movements.

However, a review of the City’s roadway standards concluded that there is no clearly defined objective standard for intersection spacing, and that the proposed design meets all of the City’s roadway design standards.

Therefore, staff did not recommend that the subdivision be revised to include the alternative roadway design (a cul-de-sac at Starr Ave/Street A).

Vacation of City Property
A small portion of proposed Lot 51 (at the southwest corner of Adams Street and Starr Avenue) is located on City-owned property which is currently proposed as part of the future right-of-way of Adams Street. This has been reviewed and found to be acceptable by the Public Works department (the portion of Lot 51 is not needed as future right-ofway), but approving the lot as proposed will require that the City vacate this property.

A proposed condition of approval is included to require the applicant to take appropriate steps to transfer this piece of City property to the applicant. 2019 GENERAL PLAN CONFORMANCE
An analysis of the proposed project’s conformance with applicable policies of the current 2019 St Helena General Plan is included as Attachment 5 to this staff report. Based on Agenda Item #5.1.

staff’s analysis, the project conforms with all applicable policies, including the proposed type and density of residential density proposed.

Note: As discussed earlier in this report, the 1993 St Helena General Plan, which was in effect at the time the application for the proposed subdivision was accepted as complete in 2011, is used in the official determination of consistency with the “General Plan.” The analysis of conformance with the current 2019 General Plan is provided for informational purposes only.

ISSUES
Project issues include the significant and unavoidable impacts, public comments received in the Draft EIR, and other issues not related to the approval of the tentative map, as noted above.

PLANNING COMMISSION HEARING 2-7-2023 CORRESPONDENCE
The City has addressed three specific letters received as part of the public testimony from the last Planning Commission hearing (see attachments 17,18 and 20):
• Letter from the law firm of DP&F, dated 10-31-22, titled, “RE: Hunter Subdivision Project Environmental Impact Report, File #PL10-040” (Attachment 16a) • Letter from the law firm of DP&F, dated 10-31-22, titled, “RE: Hunter Subdivision Project Tentative Map No. 2022-001, File #PL10-040” (Attachment 16b) • Letter from the Napa County Bicycle Coalition, dated 11-1-22, titled, “Public Comment Re: Item 5.1: Hunter Subdivision Project EIR” (Attachment 19) The following letters were received immediately prior to the February 7, 2023 Planning Commission meeting:
• Letter from the law firm of Holland & Knight (representing the applicant), dated 2- 2-23, titled, “Re: City of St. Helena, Unlawful Conditions on Hunter Subdivision Project” Response: Staff and the city attorney have reviewed the letter. In response to the first point raised in the letter, city staff is recommending a change to a condition to reflect the settlement.

The City is not persuaded by any of the other arguments raised. There is no improper exercise of discretion when conditions must be completed to the satisfaction of the city engineer because the city engineer’s decision rests on established objective industry and city standards. The engineer is satisfied if the applicant satisfies objective engineering standards. Nor is this a valid basis for an unconstitutional-taking claim since the owner will be left with plenty of economic use even if the owner doesn’t get everything that it is asking for.
• Letter from the law firm of DP&F, dated 2-6-23, titled, “RE: Hunter Subdivision Project Environmental Impact Report, File #PL10-040” (Attachment 26 to this report) Agenda Item #5.1.

Response: The response to this letter is Attachment 28 to this report. • Letter from the law firm of DP&F, dated “RE: Hunter Subdivision Project Tentative Map No. 2022-001, File #PL10-040” (Attachment 27 to this report) Response: The response to this letter is Attachment 29 to this report. • Letter from the Napa County Bicycle Coaltion, dated 2-7-23, titled, “Public Comment Re: Item 5.1: Public Hearing - Hunter Subdivision Project” (Attachment 30 to this report)
Response: The response to this letter is Attachment 31 to this report.

CITY COUNCIL HEARING 5-1-2023 CORRESPONDENCE
Responses to letters received after publication of this staff report will be attached to the agenda.

FISCAL IMPACT
There are no direct fiscal impacts to the General Fund resulting from the approval of the Tentative Parcel Map. Future development of the project site could increase the property tax and impact fee revenues, based on the size and value of the future homes that would be built in the subdivision.

RECOMMENDED ACTION
After considering the project, staff report, supporting documents, technical studies and all testimony, written and spoken, the Planning Commission of the City of St. Helena recommends that the City Council:

1. Adopt the attached Resolution certifying the Final EIR, and approving a Mitigation Monitoring Program, Findings of Fact and Statement of Overriding Considerations; and

2. Adopt the attached Resolution approving the requested Tentative Map No. 2022- 001, File #PL10-040 for the Hunter Subdivision project.

Agenda Item #5.1.

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

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

QUESTIONS PRESENTED
The City is scheduled to consider the Hunter Tentative Subdivision Map (the “Project”) on May 1, 2023. The City has received public comments in connection with the proposed Project expressing concern that the City would be liable for damages in the event of flooding as the result of a failure or overtopping of the City owned levee adjacent to the proposed Project. In a recent letter directed to Mayor Dohring and me, which I have enclosed with this email, Arlene Corsetti indicated she believes the City would be strictly liable1in the event of a failure or overtopping of levee constructed as part of the St. Helena Flood Control Project.

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

ANALYSIS
I. Strict Liability Does Not Apply to Flood Control Projects The City would not be strictly liable if the City’s levee failed or was overtopped during a flood event. The California Supreme Court has held that “the fact that a dam bursts or a levee fails is not sufficient, standing alone, to impose liability.” (Belair v. Riverside County Flood Control District (1988) 47 Cal.3d 550, 565.) To establish liability, a plaintiff must prove that (1) the flood control improvement failed to function as intended; (2) this failure constituted a proximate cause of the claimed damages; (3) the public agency acted unreasonably in designing,

1 Strict liability is a legal standard that means, in this context, that the City could be held liable for damages and injuries resulting from flooding, without any showing by the plaintiffs that the City was at fault or that the City’s negligence caused the damages or injuries.

Agenda Item #5.1.

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

County of Los Angeles (1965) 62 Cal.2d 250, 263-264.) While the general rule renders a public agency strictly liable for inverse condemnation—regardless of whether the injury was foreseeable and without regard to the presence or absence of fault, the California Supreme Court has set forth a more lenient rule in the context of flood control improvements. (See Pacific Bell v. City of San Diego (2000) 81 Cal. App. 4th 596, 610-615.)
In particular, the California Supreme Court has recognized that “a public agency that undertakes to construct or operate a flood control project clearly must not be made the absolute insurer of those lands provided protection.” (Belair, supra, 47 Cal.3d at p. 565.) Accordingly, a public agency is not strictly liable for damages resulting from the failure of a flood control facility. (Ibid.; see also Locklin, supra, 7 Cal.4th at pp. 367-368.) II. Courts Employ a Four-Part Test to Determine Inverse Condemnation Liability Based on Flooding Related Damages
A plaintiff seeking compensation against a public entity for flooding-related damages caused by failure of a flood control improvement must generally establish the following four elements in an inverse condemnation action:
(1) The flood control improvement failed to function as intended;  Example: Tri-Chem, Inc. v. Los Angeles County Flood Control Dist. (1976) 60 Cal.App.3d 306, 311 [no inverse condemnation liability where the drainage system had a design capacity of only 550 to 700 cfs, whereas runoff during the storm that resulted in the flood reached approximately 1,096 cfs; under these facts, there was no evidence that the project failed to function as intended; rather the flooding occurred in spite of the flood control improvement, not because of the improvement]; see also Belair, supra, 47 Cal.3d at pp. 561-562.) (2) The failure of the flood control improvement to function as intended constituted a proximate cause of the claimed damages
Agenda Item #5.1.

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 Note: Where forces not induced by the public flood control improvement (such as a rainstorm) contribute to the injury, proximate cause is established where the public improvement constitutes a “substantial concurring cause” of the injury—i.e., where the injury occurred in substantial part because the improvement failed to function as it was intended. “The public improvement would cease to be a substantial contributing factor, however, where it could be shown that the damage would have occurred even if the project had operated perfectly, i.e., where the storm exceeded the project’s design capacity.” (Belair, supra, 47 Cal.3d at pp. 559-560.)  Example: Shaeffer v. State of California (1972) 22 Cal.App.3d 1017, 1020 [no liability where the net result of the flood control improvement “was a lesser amount of flooding than that which would have occurred in the absence of the improvement”], disapproved on other grounds in County of San Diego v. Miller (1975) 13 Cal.3d 684; see also Belair, supra, 47 Cal.3d at pp. 561-562 [explaining how courts may find proximate cause absent where there is no evidence that the project failed to function as intended].) (3) There was some unreasonable conduct on the part of the defendant public entity in designing, constructing, or maintaining the flood control improvement.  Example: “[W]hen a public flood control improvement fails to function as intended, and properties historically subject to flooding are damaged as a proximate result thereof, plaintiffs’ recovery in inverse condemnation requires proof that the failure was attributable to some unreasonable conduct on the part of the defendant public entities.” (Belair, supra, 47 Cal.3d at p. 567; see also Bunch v. Coachella Valley Water District (1997) 15 Cal.4th 432, 436 [“When a water project fails … causing flood damage, the issue is whether the system’s design, construction, and maintenance were reasonable.”].)
(4) The public agency’s unreasonable design, construction, or maintenance constituted a substantial cause of the damages.
 Example: Public agency’s inadequate maintenance of channel constituted a substantial cause of damages resulting from levee’s failure. (Arreola v.

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

Agenda Item #5.1.

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

Contrary to plaintiffs’ position, the fact that a dam bursts or a levee fails is not sufficient, standing alone, to impose liability. However, where the public agency’s design, construction or maintenance of a flood control project is shown to have posed an unreasonable risk of harm to the plaintiffs, and such unreasonable design, construction or maintenance constituted a substantial cause of the damages, plaintiffs may recover ….
(Belair, supra, 47 Cal.3d at p. 565.)
“When a public agency erects improvements to protect against floodwaters, it must, at a minimum, act reasonably.” (Belair, supra, 47 Cal.3d at p. 567.) There is no bright-line rule, however, governing what constitutes “reasonableness.” “The reasonableness of the public agency’s conduct must be determined on the facts of each individual case, taking into consideration the public benefit and the private damages in each instance.” (Belair, supra, 47 Cal.3d at p. 566.) The Supreme Court did explain that reasonableness in this context “is not entirely a matter of negligence, but represents a balancing of public need against the gravity of private harm.” (Id. at pp. 565-566.)
The California Supreme Court subsequently elaborated in Locklin v. City of Lafayette that this balancing requires consideration of the following six factors:
“(1) The overall public purposes being served by the improvement project; Agenda Item #5.1.

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

In sum, the record shows the trial court's conclusion the District acted reasonably and promptly in repairing post-Kathleen damage and in taking steps to develop a more permanent flood control plan was sound. Expert testimony indicated the detailed steps the District undertook to secure expert technical and engineering information on repairing its facilities and in managing those repairs represented sound engineering practice. Expert testimony was in conflict as to the engineering feasibility of the short-term solution of repairing the breach in the West Magnesia Springs Canyon stormwater facilities to restore the preexisting level of flood protection, allowing the District to devote its remaining resources to developing a comprehensive flood control plan. But as the Court of Appeal observed, the trial court reasonably relied on the District's expert testimony that any attempt to “quick fix” the problem by realigning the diversion levee and lining it with stronger material would have failed during Tropical Storm Dolores. Thus, the trial court based its finding of reasonableness on a careful analysis of several factors, including the project's purpose to divert the potentially dangerous natural flow in order to prevent flood runoff from fanning out over the Magnesia Cove alluvial plain, the public need for the project, the risk of private harm, the alternatives available to reduce the risk of harm, and the District's overall fiscal and flood control responsibilities.
(Bunch, supra, 15 Cal.4th at pp. 453-454.)
Agenda Item #5.1.

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CONCLUSION
The cases regarding liability stemming from flood control projects make clear that the City would not be liable for damages simply because a flood event occurred, or even simply based on the failure of the levee, were that to occur at some point in the future. Any risk of liability would be based on and evaluation of the specific facts in event of future flooding, based on the factors described above. To limit its exposure to liability, and more importantly, to protect the community from future flooding, the City should conduct regular maintenance and inspections of the levee, and conduct repairs of the levee when deemed necessary or appropriate. This continuing inspection, maintenance and repair of the levee will help to demonstrate reasonable behavior on the part of the City. Further, the levee was designed and constructed in accordance with US Army Corps of Engineers standards to a 200 year flood standard. There is no indication that the design or the construction of the levee was unreasonable. The City should continue to be diligent in its inspection and maintenance of the levee, as it should with all public infrastructure. However, the City is not subject to strict liability based on its ownership of the levee, and any future liability will be based on whether the City is reasonable, based on the multifactor test described in this memo.
cc: Anil Comelo, City Manager
Maya DeRosa, Community Development Director
Agenda Item #5.1.

April 11, 2023
Hello, my name is Arlene Corsetti and I live at 1401 Spring Street St Helena Tonight, I would like to say a few words about the Hunter Project. I know there is a May meeting but I will not be in St Helena on that date. In addition, I would like to speak about the City’s legal liability re:
the Hunter project which I think takes precedent over the EIR or other considerations.

I have written letters about this to the City, the City Council, the St Helena Star, Mayor Dohring and the city attorney, Ethan Walsh. As of today’s date, I have not had an acceptable answer to my concerns.

I have been advised by Mr. Walsh that he has sent a copy of my letter with his remarks to the Mayor and the Council members.

The short and long of this issue is that the building of the Hunter project will increase the city’s legal liability by in excess of $150 million dollars. The levee which will abut the Hunter project is owned by the city of St Helena. By California law levee and dam ownership subjects the owner to strict liability.

Strict liability means the owner of the levee is responsible for losses cause by the levee without consideration of negligence. In other words, losses to the property of the Hunter project caused by a levee failure or seepage would be born by the city of St Helena. When there was only fallow land on the other side of the levee this was acceptable, but not if there is a multimillion-dollar property development behind the levee.

In the past, the City of St Helena has held the State of California harmless of any losses caused by the levee. In addition, the Federal government could only be engaged in the loss if we had used the Army Corp of Engineers. We chose to use another engineering group. Some would say that this problem can be solved by flood insurance. Any flood insurance held by property owners of the Hunter project would pay the homeowners. It is very likely the insurance company would exercise its right to subrogation its claim against the city because of the strict liability of levee owners which is the city.

What would happen if the city did not have the money to pay for a loss from the levee. The city would have to assess a tax against each city property owner. In case of a total loss this could be as much as $50,000 per property owner. I know of no property owner in St Helena willing to assume this liability.

I am advising the City council that they must deal with this issue before they meet on the EIR or other Hunter project issues. To deal with this, the City Council must make a statement to each property owner that the city does not have liability for damage to the Hunter project caused by a failure of the levee in any manner and the citation of the law that can give them this position.

I believe without this statement to property owners the city needs to convene a special election to vote on the building of the Hunter project. I do not believe the council has the moral right to burden city property owners with these liabilities without their direct approval.

At the very least the City should engage the State of California to re assume this liability since the State has given St Helena such an onerous task of building so many homes. We are a small rural community Agenda Item #5.1.

bounded by an agricultural preserve. We have limited abilities to build all the homes the State wants us to build.

Here are the options I see for the city:

1. Do not allow the building of the Hunter project thereby avoiding this extra liability entirely

2. Give an absolute statement to the citizens of St Helena as to why we do not have the liability for damages from the levee and cite the appropriate law that backs this statement

3. Go back to the State of California and ask them to assume liability for the levee if they in any way require us to build this project.

4. Put it to a simple majority vote of the residents of the city as to their willingness to allow the Hunter project to be built.

5. Swap this land for other city owned land.

Agenda Item #5.1.

Ethan Walsh City Attorney; City of St Helena
Paul Dohring: Mayor City of St Helena
Re: Hunter Project and The St Helena Levee
Thank you for your reply to my letter. By background, I spent 30 years advising and looking at the legal liability for US Major Corporations and Public Entities. For this reason, I have a concern for the City of St Helena and its property owners re: the Hunter Project
You correctly state that the City of St Helena gave a Hold Harmless to the State of California at the time money was given to build the levee owned by the City of St Helena. I will henceforth refer to the levee as the St Helena levee That would absolve the State of liability for a levee failure.

I believe that since we purposely did not use the US Army Corp of Engineers to build the levee ( we were the only City not to use the Corp of Engineers for the Napa Flood project) there would be very little liability for the Federal Government should there be a levee failure.

The City of St Helena owns this levee and has a responsibility to maintain and inspect the levee. I believe California dams and levees also fall under the doctrine of “Strict Liability””. Please refer to the Paper published by The Association of State Floodplain Managers. The Paper is entitled Liability for Water Control Structure Due To Flooding. In its conclusion is states that “ Strict Liability for damage caused by the release of water from a water control facility ( including levees ) is the general rule of law in the United States.”
At this time, we would also need a real review of our levee. Each year a person from the Department of Public works walks the levee, says it is fine and signs an inspection sheet. This person does not have a background in levee and dam engineering. If we have had an outside levee or dam engineering company give their opinion on the levee, I have been unable to find such a paper or inspection.

The City of St Helena now sits in the unenviable position of not having the Federal Government or the State of California as a backstop should there be any kind of levee failure. I know that many worry the most about an overtopping or direct breach of the levee but much damage is also done by seepage from levees as they age.

The area where the Hunter project is slated to be built was purposely created by the building of the levee. We used Measure A funds to build the levee. Item G of the Measure A bill states specifically “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 Napa River System and for maintaining the reliability of the water supply for the existing Napa County populations.”
The land of the proposed Hunter project was specifically not to be used for housing as stated in Measure A. It was always meant for flood protection and preservation of ground water. And as such for the existing Napa County population; not for additional population created by a housing project.

So where is the city now? It has no liability protection from the Federal Government or the State of California. It has a levee which falls under the jurisdiction of Strict liability which covers most damages.

Agenda Item #5.1.

The Hunter project area was what was left of part of a natural floodplain to mitigate water release incase of an overtop, breach or excessive seepage. Not to have non permeable structures on that land.

So how can we build 87 units on this land. We can’t. St Helena would likely be liable for any water damage caused in any way by the levee failure. If those buildings average sale price of $2,000,000 we would be looking at increasing the City Liability by at least $174 million. If there was that kind of loss the City itself would not be able to pay the loss and would look towards the St Helena property owners to split the bill. I know of no property owner in this town willing to do that. You say “ But there will not be that kind of damage”. Take a look at losses from mold in case of flooding. In many cases structures were deemed unfit to rebuild and had to be taken down to their foundations.

Now lets now look at insurance. Even if you could get every potential homeowner to buy Flood Insurance the Flood Insurers would look to the City of St Helena in a subrogation action to repay them for a loss. Flood insurers could also look at where the homes were purposely built on a 100-year flood plain and decide not to insure the project at all.

In 2011 the U.S. Army Corp of engineers published a paper titled “ Levees – What you Should Know to Manage Your Risk. It stated “ Flooding will happen, no levee is fool proof” Look at Houston. It sits in a 500-year flood plain and it has had flood damage 3 times in 5 years. In 2009 a paper from UC Berkely states “When including an additional 4 percent annual chance of a flooding due to human factors and error including engineering, design, modeling, monitoring, operation and maintenance, the 100-year flood is now a 20-year flood and the chance of major flooding and damages over a 30-year mortgage becomes 78 percent.”
How the Hunter Project got passed the Planning Commission is a question. Chris Warner stated that he was a lawyer and all this was legal, Rosaura Segura was promised affordable housing, Autumn Anderson’s erudite reply was “ Ditto” and John Ponte just looked like he was happy to pass this hot potato to someone else. It does not seem to matter what information is provided the city. It is essentially ignored. I understand the city wants to increase housing. This is just not the plot of land to put housing on.

Arlene Corsetti
1401 Spring Street
St Helena, Ca 94574
Agenda Item #5.1.

From: Carla Holm
To: Public Comment
Subject: [External] Hunter Project
Date: Tuesday, February 28, 2023 1:37:52 PM
Vineyard Valley Park helped get Flood Project through fo the safety all in St. Helena.

Now that Flood Project will be totally destroyed by a plan for 87 homes. Vineyard Valley is not a dumping ground for sewage from these homes to run through our 40 year old pipes down Our Main Street. We do not need mud and water flowing over the back wall into our park. That was why the Flood Control Project was meant to stop. We should not be a Main Street for all if the new homes. We need to be able to get out over the levee in case of fires, floods, etc. The choking traffic onto Pope, Star and all of St. Helena will make it extremely difficult to get anywhere without monumental traffic jams.

Please do not approve this project for the good of all.

Thank you, Carla Holm
Sent from my iPhone
Agenda Item #5.1.

May 8, 2023
Council Member Paul Dohring, Mayor
Council Member Eric Hall, Vice Mayor
Council Member Anna Chouteau
Council Member Lester Hardy
Council Member Billy Summers
Commissioner John Ponte, Chair
Commissioner Autumn Anderson
Commissioner Marika Rothfeld
Commissioner Rosaura Segura
Commissioner Christopher Warner
City Manager Anil Comelo
Community Development Director Maya DeRosa
RE: HUNTER PROJECT EIR – NOT READY FOR APPROVAL
Dear Mayor Dohring, Councilmembers, Chair Ponte, Commissioners, City Manager Comelo, Community Development Director DeRosa:

The EIR is mistaken when it concludes in its discussion of Aesthetics (3.1-24-26) that the Project would have a less than significant impact on the current incredible views that the approximately 17 acres of open space affords. In addition, in its discussion entitled Agriculture and Forestry Resources (3.2), the FEIR concludes that the impact created by the loss of the vineyard acreage contained in the parcel would be “less than significant.” (3.2-14) This statement is patently incorrect.

The 17 acres proposed for development is located on one of the most beautiful areas of St.

Helena. It is treasured by the residents of St. Helena. It is the last large parcel of undeveloped land on the East side of town and, aside from its gorgeous vistas, provides ample room to walk, run, ride bikes, fly kites, and toss balls for pets. While recreation room is important for the health of the community, this acreage is essential for its safety.

The large open space with few trees and its 6.2 acre vineyard has proved invaluable as a major fire-break. Vineyards have proven to be buffers, which can slow or halt the progress of wildfires. During the 2020 fires, embers did start a burn area on this property. Imagine what could have happened if the area had been developed. Allowing a subdivision to be built on this land will deprive the contiguous neighborhoods of invaluable protection and will endanger the residents.

We all know that given the progress of climate change, the threat of wildfires is something we shall have to live with. The likelihood of wildfires poses another problem for the residents of St. Helena: will they continue to be able to purchase Homeowners Insurance? Personally, since I moved to the Napa Valley in 1992, I have had three different carriers. Most disturbingly, after the fires of 2017 and 2020, AIG informed me, early in 2022, that they were ceasing to write Homeowner Policies in Northern California. It took several months before I secured Agenda Item #5.1.

another policy and that company sent inspectors to examine my house, both inside and out.

They asked a lot of questions about the neighborhood and noted the open space at the corner of Hunt and Starr as a positive item. If the City Council allows the Hunter Project to move forward eliminating this invaluable firebreak, it remains to be seen if insurers will be willing to write Homeowner policies for existing homes as well as the future housing.

This is just one instance where the FEIR has failed to recognize and analyze an important impact of the Hunter Project, which will affect the safety of the residents of St. Helena. There are many others. It is difficult to understand why the Planning Commission has decided to recommend that the City Council prematurely accept the EIR when impacts such as this have been ignored. Furthermore, while California mandated that communities such as St. Helena must add housing, SB9 states that “if a local agency makes a written finding that a project would create a specific, adverse impact upon public health and safety or the environment without a feasible way to mitigate such impact, the agency may still deny the housing project.” Respectfully,
Isobel Luria
1173 Starr Avenue

Agenda Item #5.1.

1 Erika Opp
From: Kelly Wheaton <[email protected]>
Sent: Sunday, April 9, 2023 10:45 AM
To: cityclerk
Subject: [External] Hunter Project
Dear Mayor and City Council Members,
I am heartened by the Mayor's efforts to enhance communication‐‐‐however the Special Meeting for which I did not receive an email (I am signed‐up to receive them) is a perfect example of lack of transparency and what appears to be an effort to keep the citizen's in the dark.  The Hunter project was the best attended meeting of the Planning Commission I have seen with twenty speakers and yet it goes before the City Council with NO opportunity to get the word out in the paper. Scheduled as a separate meeting with little to no time to prepare. One has to ask, why is this? Is this what is meant by encouraging transparency and communication? I hope not. Not only was it not noticed properly there are no documents to review on the website‐‐‐and no easy links to the same. Is this by design or oversight? Perhaps it is the same reason that a city employee told me that our city manager was threatening not to fill their vacant positions unless the employees supported the Hunter Project. This is inappropriate and unseemly. The Hunter Project has the potential to impact everyone in town and out of town in multiple ways from traffic, to water, to liability for when the levee fails. Note I did not say if the Levee fails. In my presentation to the Planning Commission I quoted from the Hunter EIR
"The Project site is now designated Zone X, which FEMA identifies as an area with a moderate to low risk of flooding due to a levee failure and is considered protected from a 100-year flood event (FEMA 2018)." Please note this was in 2018 before we saw bomb cyclones, saw multiple atmospheric rivers. Climate change is going to get more extreme, not less so. Drought years and deluge years---that is the new normal.

So the risk of flooding due to LEVEE FAILURE is MODERATE to Low Risk. And on Pg 549 "However, because there remains residual risk of flooding from catastrophically large floods (such as a 500-year flood) or levee failures, residents in flood-prone areas, even if outside of a regulatory flood zone, have the option to purchase optional flood insurance ." There is unlikely to be ANY FLOOD INSURANCE available to those in the project. What this doesn't say is the risk the city incurs should the levee fail and the potential lawsuits, cleanup and disaster relief necessary. The CITY acts as if the Levee is not an issue. The Army Corps of Engineers states in their Principles of the levee safety program:
 Levees do not eliminate flood risk, but can provide critical time for local emergency management officials to evacuate residents safely.

The premiere expert on Levees in California is Jeffrey Mount, professor emeritus at UC Davis and former chair of the Department of Geology and the founding director of the Center for Watershed Sciences and a senior fellow at the Public Policy Institute of California. Jeff Mount states:
"“There are two kinds of levees: Those that have failed, and those that will fail,” And yet the City of St Helena knows better than the experts and reassures everyone we have the water and the levees are safe. This project has no business being built behind the levee. There are more suitable places to locate housing that do not put the residents and the city at financial risk.

Agenda Item #5.1.

2 Please NOTE that this FLOOD PLAIN is the PERFECT place to practice slow water---by the retention basin holding water until it can Recharge the GROUNDWATER Stores. It is not far from our critical Stonebridge Wells. Even though no other community uses wells in Napa County, there is a good reason to use them over reservoirs. They don't lose water to evaporation and need less treatment.

Is this another one of those situations where the City of Saint Helena makes one poor decision after another and NO ONE has the COURAGE to stop making them? The fear that the City is out of compliance with our housing, is NOT a GOOD reason for approving a housing project in the floodplain. THINK!!! Half the cities in California are out of compliance‐‐‐you could use this as leverage for help with infrastructure etc...I am in support of moderate to low income housing‐‐‐that is what we need. We do not need more multimillion dollar homes to add to the city's liability.

FEAR of being sued by the developer is going to be peanuts compared with the lawsuits that will accrue to the City after the Levee breaches.  Take a look at the developer's track record. It is NOT GOOD. They have a poor rating with the BBB and settled a lawsuit by the state this fall.  If the City Council approves this in spite of every issue that has been raised it is because they are acting out of FEAR of the now, rather than the reckoning that will come. ANd the staff is supporting this because their unfunded pensions are already looking toward the revenue from this to balance the books. And yet the City Manager just keeps recommending more staff, more raises; as if money grew on trees. Enough already. I am pleading with the City Council to grow a backbone, and say NO. Short term pain is better than the agony that will follow this project.

Respectfully,
Kelly Wheaton
‐‐
Agenda Item #5.1.

From: Mary
To: Public Comment
Subject: [External] Hunter subdivision
Date: Thursday, April 13, 2023 2:12:03 PM
Greetings,
As a homeowner at Vineyard Valley Senior Mobile Home Park, Mary Thomas West and John West are 100 percent OPPOSED to the home expansion on the Hunter Project flood plane which we are living next to.

The city liability if there is a flood impact should be enough to VOTE NO for this project.

What is happening concerning the impact of sewage issues and is it being hooked up to Vineyard Valley sewage lines?? The recent EIR Public Hearing Notice only mentions well / water impact.

Vineyard Valley’s aging sewage system cannot handle more homes AND the potential in-law units that could markedly increase the population using the existing infrastructure.

The nervous Vineyard Valley Seniors are venomously opposed to this development and we do not understand why you would even be considering this proposal with this much public opposition.

Thank you,
Mary Thomas West and John West
3 Laguna Seca Court
St Helena, Ca 94574
707-227-7127
Sent from my iPhone
Agenda Item #5.1.

1 Cindy Tzafopoulos
From: Sandra Lowry <[email protected]>
Sent: Tuesday, April 11, 2023 10:40 AM
To: cityclerk
Subject: [External] Hunter Development - Oppose it!
Dear City Council, Planning Commissioners, City Manager, Wake Up All of You!  Read remarks from WE THE PEOPLE on Next Door and editorials in the St. Helena Star.  Read Mark Epstein’s excellent article in the St. Helena Star.  Do you understand people from both East and West sides of town OPPOSE the Hunter development?
WE THE PEOPLE voted for you and gave you the responsibility to act on our behalf.

WE THE PEOPLE are trusting you to stand up fiercely to State mandates (many California cities are already opposing this absurd mandate) and threats from developers.  SAFETY FOR WE THE PEOPLE must be your priority. The State of California understands this.

Do not ignore us as the Planning Commission did.  That was not respectful.  You serve us.  WE THE PEOPLE are not “insignificant. "
Agenda Item #5.1.

From: [email protected] <[email protected]>
Sent: Tuesday, February 7, 2023 3:08 PM
To: Cindy Tzafopoulos <[email protected]> Subject: [External] Please provide these comments for tonight's meeting to the Planning Commission, Planning Dept and City Council. Thank you for your assistance.

Honorable Planning Commission Chair and Honorable Commissioners, You as public servants know, it is the sworn responsibility of commissioners and councilmembers to require any critical information when making decisions that could severely and adversely impact the citizens of St Helena, particularly with regard to decisions that pose risks for property loss, injury, or loss of life. In the case of this project, risks are related to levee failure or overtopping.

With that in mind, approving an EIR that would place human beings on a location where their safety relies solely on a levee, without proper documentation to back safety claims does not adequately address the “Hazards” component of the EIR, and must be deemed not complete.
1) The EIR continues to refer to the St Helena levee as being designed to the 200 year flood level, despite the FEMA Letter of Map Revision provided to St Helena states that the Levee is accredited to the 100 year flood level. The EIR reply to public comments about levee safety with climate change, wildfire scarring and upstream development is: “Because the levee was designed to accommodate a more severe flooding event than required (200-year vs 100-year), future increases in storm flows in the Napa River (if they occur as a result of climate change) would be handled better than if the levee were designed to minimum 100-year standard.” Our city officials can and should require written verification of their claim. To accept it without evidence places St Helena taxpayers at risk for liability of misleading new residents living at that location.
2) The levee is now over a decade old. Visible compaction to the top of the levee is measurable and apparent, and as with dirt levees, is due to a web of gopher trenching visible throughout. It is the compaction of the open trenches that causes subsidence of the levee which reduces it’s height and Agenda Item #5.1.

capacity to safeguard from flooding. This location has undergone repeated, catastrophic flooding, and the public and city officials have the right and responsibility for a full levee inspection and evaluation prior to allowing the housing of innocent and unsuspecting people. What data is the EIR basing their claim on that “the levee is safe”? The EIR must provide information that the levee has not suffered compaction or subsidence over the last 12 years by providing documentation or an inspection report. 3) The Applicant proposes a fire “escape route” for that will be constructed into the side of the levee. Based on this, the EIR does not address “hazards”.
• Will the applicant just build a road into the side of the levee? Can the city/applicant legally alter the levee structure without submitting it to FEMA – will it affect the Letter of Map Revision which is based on the exact structure and design submitted for the Letter of Map Revision? How does a road cut into the side of the levee affect the integrity of a levee which the entire subdivision and surrounding neighborhoods depend on for flood risk reduction? • What is the escape route for the eastern lots during a flood event where the levee fails or overtops? The EIR states that the evacuation route is on top of the levee. How does the EIR explain the use of the levee as an evacuation route if it is being overtopped or fails during a flood?
• What is the grade of that “escape route” and is it passable? • Does the DWR or any agency involved in funding the levee construction allow for building a road into the side of the levee? 4) The EIR states that maintenance of the SH levee has been ongoing, yet a public records request provided reports that show years of no/missing maintenance records. The public has the right to validation of the EIR’s unsubstantiated claims of consistent levee maintenance by providing the full records (2011 through 2023) as an addendum or a link to them on the city site. The Final EIR simply says “they are available at City Hall”, yet they are not. Simply stating “they are there” is not an answer to the public’s question, and should not be accepted by our representatives acting on our behalf.

Agenda Item #5.1.

In summary, “Hazards” is an EIR component that assesses public safety, and this EIR has not provided documentation to back their claims despite repeated public outcry. Once the map is accepted, the applicant has no responsibility to the people living at risk behind the levee that we taxpayers own, operate, maintain and are liable for into perpetuity. Please represent our interests and demand the EIR adequately assess public safety as required by law, and evaluate the true condition of the levee condition and re-state in the EIR it’s capability to the 100 year flood as FEMA deemed it to be.

Thank you for your service to this community. Your time and dedication is much appreciated.

Ann Nevero
Agenda Item #5.1.

07-09-0511R
12-09-0871P
Washington, D.C. 20472
Federal Emergency Management Agency

LETTER OF MAP REVISION

DETERMINATION DOCUMENT

COMMUNITY AND REVISION INFORMATION PROJECT DESCRIPTION

COMMUNITY
APPROXIMATE LATITUDE & LONGITUDE: 38.511, -122.461
SOURCE: USGS QUADRANGLE DATUM: NAD 83
City of St. Helena
Napa County
California
COMMUNITY NO.: 060208

BASIS OF REQUEST

IDENTIFIER

CHANNELIZATION
LEVEE

FLOODWAY

HYDRAULIC ANALYSIS

LEVEE CERTIFICATION

NEW TOPOGRAPHIC DATA
St. Helena Flood Protection Project

ANNOTATED MAPPING ENCLOSURES ANNOTATED STUDY ENCLOSURES TYPE: FIRM* NO.: 06055C0264E DATE: September 26, 2008 DATE OF EFFECTIVE FLOOD INSURANCE STUDY REPORT: September 29, 2010 PROFILE: 18P
FLOODWAY DATA TABLE: 9
Enclosures reflect changes to flooding sources affected by this revision. * FIRM - Flood Insurance Rate Map; ** FBFM - Flood Boundary and Floodway Map; *** FHBM - Flood Hazard Boundary Map FLOODING SOURCE(S) & REVISED REACH(ES) See Page 2 for Additional Flooding Sources Napa River - from approximately 780 feet downstream of the confluence of Sulphur Creek to approximately 3,120 feet upstream

SUMMARY OF REVISIONS
Flooding Source Effective Flooding Revised Flooding Increases Decreases Napa River Zone AE Zone AE YES YES
Zone X (shaded) Zone X (shaded) YES YES
BFEs* BFEs YES YES
Floodway Floodway NONE YES
* BFEs - Base Flood Elevations

DETERMINATION
This document provides the determination from the Department of Homeland Security's Federal Emergency Management Agency (FEMA) regarding a request for a Letter of Map Revision (LOMR) for the area described above. Using the information submitted, we have determined that a revision to the flood hazards depicted in the Flood Insurance Study (FIS) report and/or National Flood Insurance Program (NFIP) map is warranted. This document revises the effective NFIP map, as indicated in the attached documentation. Please use the enclosed annotated map panels revised by this LOMR for floodplain management purposes and for all flood insurance policies and renewals in your community.

This determination is based on the flood data presently available. The enclosed documents provide additional information regarding this determination. If you have any questions about this document, please contact the FEMA Map Information eXchange (FMIX) toll free at 1-877-336-2627 (1-877-FEMA MAP) or by letter addressed to the LOMC Clearinghouse, 847 South Pickett Street, Alexandria, VA 22304-4605. Additional Information about the NFIP is available on our website at http://www.fema.gov/business/nfip.
125360 PT202.02.BKR.12090871P.H17 102-I-A-C
Siamak Esfandiary, Ph.D., P.E., Program Specialist
Engineering Management Branch
Federal Insurance and Mitigation Administration
Follows Conditional Case No.:

Agenda Item #5.1.

Washington, D.C. 20472
Federal Emergency Management Agency

LETTER OF MAP REVISION

DETERMINATION DOCUMENT (CONTINUED)

OTHER FLOODING SOURCES AFFECTED BY THIS REVISION

FLOODING SOURCE(S) & REVISED REACH(ES)
Sulphur Creek - from the confluence with Napa River to approximately 1,560 feet upstream

SUMMARY OF REVISIONS
Flooding Source Effective Flooding Revised Flooding Increases Decreases Sulphur Creek BFEs* BFEs YES NONE
* BFEs - Base Flood Elevations
This determination is based on the flood data presently available. The enclosed documents provide additional information regarding this determination. If you have any questions about this document, please contact the FEMA Map Information eXchange (FMIX) toll free at 1-877-336-2627 (1-877-FEMA MAP) or by letter addressed to the LOMC Clearinghouse, 847 South Pickett Street, Alexandria, VA 22304-4605. Additional Information about the NFIP is available on our website at http://www.fema.gov/business/nfip.
125360 PT202.02.BKR.12090871P.H17 102-I-A-C
Siamak Esfandiary, Ph.D., P.E., Program Specialist
Engineering Management Branch
Federal Insurance and Mitigation Administration
Agenda Item #5.1.

Washington, D.C. 20472
Federal Emergency Management Agency

LETTER OF MAP REVISION

DETERMINATION DOCUMENT (CONTINUED)

OTHER COMMUNITIES AFFECTED BY THIS REVISION
CID Number: 060205 Name: Napa County, California

AFFECTED MAP PANELS AFFECTED PORTIONS OF THE FLOOD INSURANCE STUDY REPORT DATE OF EFFECTIVE FLOOD INSURANCE STUDY REPORT:

PROFILE(S): 18P
FLOODWAY DATA TABLE: 9
TYPE: FIRM* NO.: 06055C0264E DATE: September 26, 2008 September 29, 2010 This determination is based on the flood data presently available. The enclosed documents provide additional information regarding this determination. If you have any questions about this document, please contact the FEMA Map Information eXchange (FMIX) toll free at 1-877-336-2627 (1-877-FEMA MAP) or by letter addressed to the LOMC Clearinghouse, 847 South Pickett Street, Alexandria, VA 22304-4605. Additional Information about the NFIP is available on our website at http://www.fema.gov/business/nfip.
125360 PT202.02.BKR.12090871P.H17 102-I-A-C
Siamak Esfandiary, Ph.D., P.E., Program Specialist
Engineering Management Branch
Federal Insurance and Mitigation Administration
Agenda Item #5.1.

Washington, D.C. 20472
Federal Emergency Management Agency

LETTER OF MAP REVISION

DETERMINATION DOCUMENT (CONTINUED)

COMMUNITY INFORMATION

APPLICABLE NFIP REGULATIONS/COMMUNITY OBLIGATION
We have made this determination pursuant to Section 206 of the Flood Disaster Protection Act of 1973 (P.L. 93-234) and in accordance with the National Flood Insurance Act of 1968, as amended (Title XIII of the Housing and Urban Development Act of 1968, P.L. 90-448), 42 U.S.C. 4001-4128, and 44 CFR Part 65. Pursuant to Section 1361 of the National Flood Insurance Act of 1968, as amended, communities participating in the NFIP are required to adopt and enforce floodplain management regulations that meet or exceed NFIP criteria. These criteria, including adoption of the FIS report and FIRM, and the modifications made by this LOMR, are the minimum requirements for continued NFIP participation and do not supersede more stringent State/Commonwealth or local requirements to which the regulations apply.

We provide the floodway designation to your community as a tool to regulate floodplain development. Therefore, the floodway revision we have described in this letter, while acceptable to us, must also be acceptable to your community and adopted by appropriate community action, as specified in Paragraph 60.3(d) of the NFIP regulations.

NFIP regulations Subparagraph 60.3(b)(7) requires communities to ensure that the flood-carrying capacity within the altered or relocated portion of any watercourse is maintained. This provision is incorporated into your community’s existing floodplain management ordinances; therefore, responsibility for maintenance of the altered or relocated watercourse, including any related appurtenances such as bridges, culverts, and other drainage structures, rests with your community. We may request that your community submit a description and schedule of maintenance activities necessary to ensure this requirement.

COMMUNITY REMINDERS
We based this determination on the 1-percent-annual-chance flood discharges computed in the FIS for your community without considering subsequent changes in watershed characteristics that could increase flood discharges. Future development of projects upstream could cause increased flood discharges, which could cause increased flood hazards. A comprehensive restudy of your community’s flood hazards would consider the cumulative effects of development on flood discharges subsequent to the publication of the FIS report for your community and could, therefore, establish greater flood hazards in this area.

Your community must regulate all proposed floodplain development and ensure that permits required by Federal and/or State/Commonwealth law have been obtained. State/Commonwealth or community officials, based on knowledge of local conditions and in the interest of safety, may set higher standards for construction or may limit development in floodplain areas. If your State/Commonwealth or community has adopted more restrictive or comprehensive floodplain management criteria, those criteria take precedence over the minimum NFIP requirements.

We will not print and distribute this LOMR to primary users, such as local insurance agents or mortgage lenders; instead, the community will serve as a repository for the new data. We encourage you to disseminate the information in this LOMR by preparing a news release for publication in your community's newspaper that describes the revision and explains how your community will provide the data and help interpret the NFIP maps. In that way, interested persons, such as property owners, insurance agents, and mortgage lenders, can benefit from the information.

This determination is based on the flood data presently available. The enclosed documents provide additional information regarding this determination. If you have any questions about this document, please contact the FEMA Map Information eXchange (FMIX) toll free at 1-877-336-2627 (1-877-FEMA MAP) or by letter addressed to the LOMC Clearinghouse, 847 South Pickett Street, Alexandria, VA 22304-4605. Additional Information about the NFIP is available on our website at http://www.fema.gov/business/nfip.
125360 PT202.02.BKR.12090871P.H17 102-I-A-C
Siamak Esfandiary, Ph.D., P.E., Program Specialist
Engineering Management Branch
Federal Insurance and Mitigation Administration
Agenda Item #5.1.

Washington, D.C. 20472
Federal Emergency Management Agency

LETTER OF MAP REVISION

DETERMINATION DOCUMENT (CONTINUED)
We have designated a Consultation Coordination Officer (CCO) to assist your community. The CCO will be the primary liaison between your community and FEMA. For information regarding your CCO, please contact:

Ms. Sally M. Ziolkowski
Director, Mitigation Division
Federal Emergency Management Agency, Region IX
1111 Broadway Street, Suite 1200
Oakland, CA 94607-4052
(510) 627-7175

STATUS OF THE COMMUNITY NFIP MAPS
We will not physically revise and republish the FIRM and FIS report for your community to reflect the modifications made by this LOMR at this time. When changes to the previously cited FIRM panel(s) and FIS report warrant physical revision and republication in the future, we will incorporate the modifications made by this LOMR at that time.

Because this revisions involves minor changes to the backwater BFEs along Sulphur Creek and does not change the whole foot BFEs shown on the effective FIRM, we are not revising the Flood Profile for Sulphur Creek.

This determination is based on the flood data presently available. The enclosed documents provide additional information regarding this determination. If you have any questions about this document, please contact the FEMA Map Information eXchange (FMIX) toll free at 1-877-336-2627 (1-877-FEMA MAP) or by letter addressed to the LOMC Clearinghouse, 847 South Pickett Street, Alexandria, VA 22304-4605. Additional Information about the NFIP is available on our website at http://www.fema.gov/business/nfip.
125360 PT202.02.BKR.12090871P.H17 102-I-A-C
Siamak Esfandiary, Ph.D., P.E., Program Specialist
Engineering Management Branch
Federal Insurance and Mitigation Administration
Agenda Item #5.1.

Washington, D.C. 20472
Federal Emergency Management Agency

LETTER OF MAP REVISION

DETERMINATION DOCUMENT (CONTINUED)

PUBLIC NOTIFICATION OF REVISION
A notice of changes will be published in the Federal Register. This information also will be published in your local newspaper on or about the dates listed below and through FEMA’s Flood Hazard Mapping website at https://www.floodmaps.fema.gov/fhm/Scripts/bfe_main.asp.

LOCAL NEWSPAPER Name: The Napa Valley Register
Dates: June 29, 2012 and July 6, 2012
Within 90 days of the second publication in the local newspaper, a citizen may request that we reconsider this determination. Any request for reconsideration must be based on scientific or technical data. Therefore, this letter will be effective only after the 90-day appeal period has elapsed and we have resolved any appeals that we receive during this appeal period. Until this LOMR is effective, the revised flood hazard determination information presented in this LOMR may be changed.

This determination is based on the flood data presently available. The enclosed documents provide additional information regarding this determination. If you have any questions about this document, please contact the FEMA Map Information eXchange (FMIX) toll free at 1-877-336-2627 (1-877-FEMA MAP) or by letter addressed to the LOMC Clearinghouse, 847 South Pickett Street, Alexandria, VA 22304-4605. Additional Information about the NFIP is available on our website at http://www.fema.gov/business/nfip.
125360 PT202.02.BKR.12090871P.H17 102-I-A-C
Siamak Esfandiary, Ph.D., P.E., Program Specialist
Engineering Management Branch
Federal Insurance and Mitigation Administration
Agenda Item #5.1.

CROSS SECTION DISTANCE 1 WIDTH (FEET) SECTION AREA (SQUARE FEET) MEAN

VELOCITY
(FEET PER

SECOND)

REGULATORY WITHOUT

FLOODWAY
WITH

FLOODWAY INCREASE
AA 112,280 1,982 11,815 2.6 87.5 87.5 88.4 0.9AB 112,980 2,314 16,279 1.9 87.9 87.9 88.8 0.9 AC 113,480 1,984 13,820 2.2 88.1 88.1 89 0.9AD 114,180 2,319 13,677 2.2 88.3 88.3 89.3 1.0 AE 116,180 1,667 8,632 3.5 89.5 89.5 90.4 0.9
AF 116,780 1,607 8,394 3.6 90.5 90.5 91.4 0.9
AG 119,780 1,864 9,842 3.0 94.1 94.1 94.8 0.7
AH 121,280 1,266 7,341 4.1 95.6 95.6 96.4 0.8
AI 122,080 1,202 6,550 4.6 98.8 98.8 99.2 0.4
AJ 127,580 1,900 9,228 3.3 114.2 114.2 114.7 0.5
AK 129,980 1,868 9,060 3.1 119.2 119.2 119.4 0.2
AL 134,112 3,000 4,777 5.9 121.6 121.6 122.6 1.0
AM 137,808 3,250 6,282 4.5 128.0 128.0 128.5 0.5
AN 141,504 2,890 7,313 3.8 135.8 135.8 136.7 0.9
AO 147,312 1,100 5,020 4.6 149.5 149.5 150.0 0.5
AP 150,480 1,200 3,800 6.1 156.1 156.1 156.7 0.6
AQ 154,176 2,800 7,490 3.1 162.9 162.9 163.9 1.0
AR 158,928 670 5,540 3.8 177.1 177.1 178.1 1.0
AS 163,680 2,610 6,770 3.1 188.8 188.8 189.8 1.0
AT 167,376 950 5,160 4.1 198.8 198.8 199.4 0.6
AU 172,128 240 2,930 7.0 211.8 211.8 211.8 0.0
AV 172,528 122 2,296 9.0 213.1 213.1 214.1 1.0 REVISED
AW 173,028 148 2,782 7.4 214.8 214.8 215.8 1.0 DAT
A
AX 173,628 193 3,595 5.7 216.2 216.2 217.1 0.9AY 173,930 500 4,821 4.3 217.1 217.1 218.0 0.9 AZ 174,530 962 8,259 3.8 217.8 217.8 218.6 0.8
1 Feet above county boundary

FLOODING SOURCE FLOODWAY

BASE FLOOD

WATER-SURFACE ELEVATION
( FEET NAVD)
Napa River (continued)
TABLE 9 FEDERAL EMERGENCY MANAGEMENT AGENCY NAPA COUNTY, CA AND INCORPORATED AREAS FLOODWAY DATA NAPA RIVER Agenda Item #5.1.

CROSS SECTION DISTANCE 1 WIDTH (FEET) SECTION AREA (SQUARE FEET) MEAN

VELOCITY
(FEET PER

SECOND)

REGULATORY WITHOUT

FLOODWAY
WITH

FLOODWAY INCREASE
BA 175,030 1,000 7,631 3.3 219.0 219.0 219.5 0.5BB 175,530 672 6,257 4.0 219.7 219.7 220.2 0.5 BC 176,930 915 2,873 6.5 220.4 220.4 220.7 0.3 REVISED
BD 181,930 429 4,006 4.4 232.0 232.0 232.0 0.0 DATA
BE 187,440 390 2,480 7.1 242.4 242.4 242.6 0.2
BF 190,080 680 4,440 4.0 249.6 249.6 250.6 1.0
BG 192,720 360 3,050 5.1 258.2 258.2 258.5 0.3
BH 197,472 1,425 7,110 2.2 270.6 270.6 271.6 1.0
BI 200,112 1,000 3,080 4.9 275.6 275.6 275.7 0.1
BJ 203,808 575 2,470 6.1 290.6 290.6 290.6 0.0
BK 204,864 1,155 5,030 3.0 294.9 294.9 295.1 0.2
BL 208,560 1,550 6,590 1.9 302.7 302.7 303.2 0.5
BM 212,784 680 2,120 5.9 316.3 316.3 316.5 0.2
BN 215,424 660 3,490 3.6 326.3 326.3 326.3 0.0
BO 216,124 880 3,898 3.2 327.4 327.4 327.5 0.1
BP 219,024 885 2,664 7.7 337.1 337.1 337.6 0.5
BQ 219,824 859 3,726 5.3 340.2 340.2 340.9 0.7
BR 220,524 473 1,559 6.3 341.8 341.8 342.3 0.5
BS 221,424 561 2,280 5.3 345.4 345.4 346.3 0.9
BT 221,724 169 1,530 6.3 346.6 346.6 347.4 0.8
BU 222,524 79 840 11.4 349.4 349.4 349.6 0.2
BV 222,674 55 955 10.0 350.5 350.5 350.6 0.1
BW 223,624 783 2,776 3.5 356.0 356.0 356.5 0.5
BX 223,744 837 2,077 4.6 356.1 356.1 356.7 0.6BY 224,124 83 1,084 8.8 357.5 357.5 357.7 0.2 1 Feet above county boundary

BASE FLOOD

WATER-SURFACE ELEVATION
( FEET NAVD)

FLOODING SOURCE FLOODWAY
TABLE 9 FLOODWAY DATA NAPA RIVER FEDERAL EMERGENCY MANAGEMENT AGENCY NAPA COUNTY, CA AND INCORPORATED AREAS Napa River (continued)
Agenda Item #5.1.

CROSS SECTION DISTANCE WIDTH (FEET) SECTION AREA (SQUARE FEET) MEAN

VELOCITY
(FEET PER

SECOND)

REGULATORY WITHOUT

FLOODWAY
WITH

FLOODWAY INCREASE
Redwood Creek
A 15,8401
__4 680 3.8 185.6 185.6 185.7 0.1
Sarco Creek
A 532 500 2,550 0.8 32.0 32.0 33.0 1.0
B 3,1682 138 600 3.1 40.7 40.7 40.7 0.0

REVISED
Sulphur Creek DATA
A 2303 56 538 6.8 217.8 212.85 213.75 0.9
B 3953 56 575 6.4 217.8 214.75 215.45 0.7
C 8003 53 493 7.5 217.8 216.05 216.75 0.7D 1,0603 50 435 8.4 217.8 217.75 218.45 0.7 E 1,4903 46 478 7.7 219.9 219.9 220.6 0.7
F 1,7803 36 355 10.3 221.9 221.9 222.6 0.7
G 2,2003 45 471 7.8 226.3 226.3 227.1 0.8
H 2,5603 78 733 5.0 228.3 228.3 229.1 0.8
I 2,9603 72 601 6.1 229.6 229.6 230.3 0.7
J 3,1703 90 554 6.6 230.8 230.8 231.8 1.0
K 3,5403 170 711 5.2 233.4 233.4 234.0 0.6
L 3,8303 170 951 3.9 234.3 234.3 235.3 1.0
M 4,1303 89 695 5.3 234.7 234.7 235.7 1.0
N 4,4253 264 1,238 3.0 239.5 239.5 240.3 0.8
O 4,8003 302 1,162 3.2 240.2 240.2 241.1 0.9
P 5,0453 150 714 5.1 240.9 240.9 241.9 1.0
1 Feet above confluence with Napa Creek 4 Computed floodway is inside channel banks 2 Feet above confluence with Milliken Creek 5 Elevation computed without consideration of backwater effects3 Feet above confluence with Napa River

FLOODING SOURCE FLOODWAY

BASE FLOOD

WATER-SURFACE ELEVATION
( FEET NAVD)
TABLE 9 FEDERAL EMERGENCY MANAGEMENT AGENCY NAPA COUNTY, CA AND INCORPORATED AREAS FLOODWAY DATA REDWOOD CREEK-SARCO CREEK- SULPHUR CREEK Agenda Item #5.1.

Agenda Item #5.1.

BC
B
B
BA
AZ
AY
AX
AW
AV
AU
A
B
C
D
E
F
G
222
220
218
210
212
214
21 2
5 16
222
224
225

MONTE VISTA AVE

GROVE CT

JUNE LN

HUNT AVE

CHILES AVE

PAULSON CT

HOLLIS LN

COLLEGE AVE

LA CUESTA
CT

LOS ROBLES
CT

REDONDO CT

REVISED
AREA

ZONE AE
Napa County
Unincorporated Areas
060205
City of
St. Helena
060208
Napa County
Unincorporated Areas
060205

HOWELL MOUNTAIN RD
OA
KW
O

OD LANE

PROFILE

BASE LINE

PROFILE

BASE LINE
Sulphur
Creek
Napa River
FULTON
LN

MEADOWOOD LANE
Levee

DEL RIO CT

LAGUNA SECA

SAN JUAN CT
ZONE
AE
R. 6 W.

R. 5 W.
30 29

ZONE AE
220
220
219
218
224
226
25 KNOLL PL
NOTE: THIS AREA IS SHOWN AS BEING
PROTECTED FROM THE 1-PERCENT-ANNUAL
-CHANCE OR GREATER FLOOD HAZARD BY A
LEVEE SYSTEM. OVERTOPPING OR FAILURE
OF ANY LEVEE SYSTEM IS POSSIBLE.
217
1950000 FT
JOIN
S
PA
N
EL 0
2 6
3 Federal Emergency Management Agency
Notice to User: The shown below should be
used when placing map orders; the shown
above should be used on insurance applications for the subject community.

Map Number
Community Number
FIRM

FLOOD INSURANCE RATE MAP
PANEL 0264E
CONTAINS:

COMMUNITY NUMBER PANEL SUFFIX

MAP NUMBER
06055C0264E

EFFECTIVE DATE
SEPTEMBER 26, 2008
PANEL 264 OF 650
(SEE MAP INDEX FOR FIRM PANEL LAYOUT)

NAPA COUNTY,

CALIFORNIA
NAPA COUNTY 060205 0264 E
ST. HELENA, CITY OF 060208 0264 E

AND INCORPORATED AREAS
MAP SCALE 1" = 500'
250 0 500
FEET
150 0 150
METERS
Legend
1% annual chance
(100-Year) Floodplain
1% annual chance
(100-Year) Floodway

0.2% annual chance
(500-Year) Floodplain
Agenda Item #5.1.

1 Xinia Gamero
From: Cindy Tzafopoulos
Sent: Tuesday, February 7, 2023 3:20 PM
To: Xinia Gamero
Subject: FW: [External] INCLUDING ATTACHMENTS - Please provide comments for tonight's meeting to the Planning Commission, Planning Dept and City Council. Please replace this with the previous email - this includes attachments
Attachments: FEMA LOMR 12-09-0871P-060208.pdf
Importance: High
Thank you,
Cindy Tzafopoulos
City Clerk
City of St. Helena
1572 Railroad Avenue
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: [email protected] <[email protected]>
Sent: Tuesday, February 7, 2023 3:15 PM
To: Cindy Tzafopoulos <[email protected]> Subject: [External] INCLUDING ATTACHMENTS - Please provide comments for tonight's meeting to the Planning Commission, Planning Dept and City Council. Please replace this with the previous email - this includes attachments Importance: High
Agenda Item #5.1.

2 Vineyard Valley 1986 – immediately adjacent to the Hunter proposed project location Honorable Planning Commission Chair and Honorable Commissioners, You as public servants know, it is the sworn responsibility of commissioners and councilmembers to require any critical information when making decisions that could severely and adversely impact the citizens of St Helena, particularly with regard to decisions that pose risks for property loss, injury, or loss of life. In the case of this project, risks are related to levee failure or overtopping.

With that in mind, approving an EIR that would place human beings on a location where their safety relies solely on a levee, without proper documentation to back safety claims does not adequately address the “Hazards” component of the EIR, and must be deemed not complete. 1) The EIR conƟnues to refer to the St Helena levee as being designed to the 200 year flood level, despite the (aƩached) FEMA LeƩer of Map Revision provided to St Helena states that the Levee is accredited to the 100 year flood level. The EIR reply to public comments about levee safety with climate change, wildfire scarring and upstream development is: “Because the levee was designed to accommodate a more severe flooding event than required (200-year vs 100-year), future increases in storm flows in the Napa River (if they occur as a result of climate change) would be handled beƩer than if the levee were designed to minimum 100-year standard.” Our city officials can and should require wriƩen verificaƟon of their claim. To accept it without evidence places St Helena taxpayers at risk for liability of misleading new residents living at that locaƟon.

Agenda Item #5.1.

3 2) The levee is now over a decade old. Visible compacƟon to the top of the levee is measurable and apparent, and as with dirt levees, is due to a web of gopher trenching visible throughout. It is the compacƟon of the open trenches that causes subsidence of the levee which reduces it’s height and capacity to safeguard from flooding. This locaƟon has undergone repeated, catastrophic flooding, and the public and city officials have the right and responsibility for a full levee inspecƟon and evaluaƟon prior to allowing the housing of innocent and unsuspecƟng people. What data is the EIR basing their claim on that “the levee is safe”? The EIR must provide informaƟon that the levee has not suffered compacƟon or subsidence over the last 12 years by providing documentaƟon or an inspecƟon report.
3) The Applicant proposes a fire “escape route” for that will be constructed into the side of the levee. Based on this, the EIR does not address “hazards”. • Will the applicant just build a road into the side of the levee? Can the city/applicant legally alter the levee structure without submiƫng it to FEMA – will it affect the LeƩer of Map Revision which is based on the exact structure and design submiƩed for the LeƩer of Map Revision? How does a road cut into the side of the levee affect the integrity of a levee which the enƟre subdivision and surrounding neighborhoods depend on for flood risk reducƟon? • What is the escape route for the eastern lots during a flood event where the levee fails or overtops? The EIR states that the evacuaƟon route is on top of the levee. How does the EIR explain the use of the levee as an evacuaƟon route if it is being overtopped or fails during a flood?
• What is the grade of that “escape route” and is it passable? • Does the DWR or any agency involved in funding the levee construcƟon allow for building a road into the side of the levee?
4) The EIR states that maintenance of the SH levee has been ongoing, yet a public records request provided reports that show years of no/missing maintenance records. The public has the right to validaƟon of the EIR’s unsubstanƟated claims of consistent levee maintenance by providing the full records (2011 through 2023) as an addendum or a link to them on the city site. The Final EIR simply says “they are available at City Hall”, yet they are not. Simply staƟng “they are there” is not an answer to the public’s quesƟon, and should not be accepted by our representaƟves acƟng on our behalf.

In summary, “Hazards” is an EIR component that assesses public safety, and this EIR has not provided documentation to back their claims despite repeated public outcry. Once the map is accepted, the applicant has no responsibility to the people living at risk behind the levee that Agenda Item #5.1.

4 we taxpayers own, operate, maintain and are liable for into perpetuity. Please represent our interests and demand the EIR adequately assess public safety as required by law, and evaluate the true condition of the levee condition and re-state in the EIR it’s capability to the 100 year flood as FEMA deemed it to be.

Thank you for your service to this community. Your time and dedication is much appreciated.

Ann Nevero
Agenda Item #5.1.

1 Cindy Tzafopoulos
From: [email protected]
Sent: Monday, April 10, 2023 9:21 AM
To: Cindy Tzafopoulos
Subject: [External] Refusal to Accept Liability
Cindy,
This public comment is for the Hunter project meeting coming up. Please send to City Council, City Manager, Planning and Public Works Directors. Thank you very much. Ann To: The City of St Helena - City Council, Planning Commission, City Manager, City Staff Date: April 2023
We believe the decision to put new development in a flood-risk area that relies on the St Helena levee for flood protection is reckless and endangers people, property, and the financial security of the City and residents of St Helena who are fully liable for levee performance as stated in California AB 1898. (Reference 1)
We ask the city to prepare a detailed analysis of the risk to the city of St Helena and its residents, and inform the public prior to any further action.

We strongly urge that the city negotiate with the State of California to reverse its refusal to accept liability for the levee (Reference 1) , since the State’s public pressure (Reference 2) to approve the new development behind it places extensive and unnecessary risk on the taxpayers of St Helena.
---------------------------------------
Background:

If approved, the new development will fully rely on the City-owned levee for flood protection. Additionally, it will increase flood risk to the existing adjacent properties by replacing the open permeable acreage on the existing historic floodplain with hardscape and increased elevation (Reference 5).

Concern for public safety and financial liability have been a long standing issue regarding new development in the residual risk zone behind the St Helena levee.

Citizens have diligently provided public comment with overwhelmingly opposition to any new development that depends on the levee for flood protection; in writing, in meetings with staff and councilmembers, and in person during city council and planning commission meetings.

In addition, local community groups representing a wide range of residents from across the City have worked together to present the inconsistencies, errors, code/zoning violations, safety issues and liability with the proposed development in a flood risk area along the Napa River that will be reliant on our levee for flood protection.

These concerns are only enhanced with climate change projections of continued, heightened weather events such as atmospheric rivers, bomb cyclones, and record-breaking storms worldwide. (Reference Agenda Item #5.1.

2 4) In addition, severe scarring from recent wildfires on adjacent hillsides significantly increases runoff to the river and low-lying area. FEMA’s LOMR to St Helena encourages local governments to re-assess flood risks under changing conditions. (Reference 6))
These conditions add even more pressure on the city’s levee system and increase the likelihood of flood damage similar to the State-wide destruction to Levees, Dams, Bridges and Roads causing catastrophic loss of property and life. Just last month, the levee break near the city of Parajo caused widespread evacuations and left behind water soaked properties and displaced residents for months or years to come.

Yet, at the February 7, 2023 Planning Commission meeting which prompted hundreds of individual and community group letters and public comments providing valid documentation and proven legal opinions on issues such as zoning irregularities, flood risk concerns, unintended use of Measure A flood tax funds, and insufficient exit routes in a flood risk area, the Planning Commission approved the subdivision Tentative Map behind the levee.

Importantly, the explanation by city officials for moving forward with this ill-conceived project has centered around the State of California pressuring the City of St Helena to permit new housing on that site, regardless of the impact to St Helena. Yet, the State has refused to accept any liability for levee performance and subsequent damages (in Assembly Bill 1898) so the liability rests squarely on the shoulders of the people and the City of St Helena.

It is unacceptable to put the people of St Helena at such extreme risk. We refuse to accept liability unless the State takes on the liability for enforcing its excessive housing program which was strongly criticized by the CA State Auditor (Reference 8) and pressures the St Helena to make this reckless decision by threatening us with fines, legal action and loss of local control. (Reference 2) Summary of Critical Considerations:
 The City of St Helena built the levee to reduce flood risk after catastrophic flooding occurred 3 times in 25 years to existing properties, not to put more people in harm’s way. Photo 1  The Measure A Flood Tax (Reference 7) was voted in by the people of Napa Co. to reduce flood risk for the existing Napa County population as of the date of the Measure A Ordinance 11/4/95 “None of the projects were intended to encourage population growth…” Section 2. G Against the listed requirements, the proposed new development a) was not existing before the levee was built b) will get direct benefits and enable growth by taking advantage of reduced flood safety building requirements, and eliminating the requirement for properties to purchase FEMA flood insurance.

This is a direct misuse of Measure A tax funds and clearly violates voters’ intent in adopting the Measure.  The taxpayers of St Helena are wholly responsible for the operation, maintenance and performance of their levee. This responsibility, cost and liability extends into perpetuity, so St Helena taxpayers carry the costs and liability for the next 5, 50, 100, or 200 years plus, which financially burdens this generation and every future generation of St Helena residents with the liability for property damages and associated public safety.
 There is no Federal liability, because St Helena did not partner with the Federal Army Corps of Engineers in design and construction; it was done by private engineering and construction firms.  There is no State liability. The city borrowed/received funding from the State of California. In providing that funding, the State required that the City take all liability, and the State be indemnified. Verbiage below:

State of California Assembly Bill 1898 (excerpts)
The People of the State of California do enact as follows:

Agenda Item #5.1.

3 (c) A county or local agency may receive the funds only if it enters into an agreement with the department pursuant to which the city or local agency agrees to indemnify and hold and save harmless the state, its officers, agents, and employees for any and all liability for damages that may result from the project. (d) For the purposes of this section, "liability for damages" includes, but is not limited to, liability for damages relating to the construction or operation of the project or the failure of the project to operate as intended.

Final Conclusion –
Because the proposed new development behind the levee:
 Will put new properties and people on a floodplain that has catastrophically flooded repeatedly,
 Will potentially flood adjacent properties when hardscape replaces permeable open space;
 Will rely solely on the St Helena levee for flood safety;  Will render St Helena Residents fully liable for flood related damage or loss of life on the new development;
 Will burden generations of St Helenans into perpetuity with the full liability and costs as long as the development exists
We residents of St Helena-
 Believe that this is a reckless and unacceptable decision which significantly threatens our financial security, safety and community well-being.  Refuse to be held financially liable for any and all damage, loss, injury or death incurred as a result of levee malfunction, failure or overtopping if new development behind the levee is approved without State assurances for liability.  Insist that the City NOT move forward in any way on development without securing the State of California to reverse its refusal to accept liability (Reference 1) for damages relating to the levee, because the State has threatened[i] the city with the possibility of extreme fines, loss of local planning control and lawsuits to pressure St Helena to approve new development on the flood-risk zone behind the City owned levee.  St Helena elected officials cannot in good faith serve the people of St Helena, by making a decision that jeopardizes the financial liability and risk to St Helenans, its holdings or its public safety. The State cannot remain indemnified by obliging a small local community to assume all the risks and costs of State pressure to build in a flood risk area.
*
PHOTO 1 - St Helena properties in 1986 on the same floodplain as the proposed new development behind the city owned levee, illustrating the potential for catastrophic damage to new development in the event of levee failure.

Agenda Item #5.1.

4 References:
 AB 1898 Assembly Bill - CHAPTERED (ca.gov)
 Consequences of Non-Compliance with Housing Laws.pdf (ca.gov) The State can impose significant fines, bring lawsuits, remove local authority, and more if cities do not follow the State’s housing plan.
 https://berkeleydailyplanet.com/issue/2022-04-03/article/49690 Press Release: California State Auditor releases scathing report on RHNA process. Report finds housing goals are not supportable by evidence.
 Manage Flood Risk | US EPA “Heavy downpours have increased in frequency and intensity worldwide… expected to become more frequent and intense… As a result, the risk of flooding is likely to increase dramatically across the United States.”  Benefits of Natural Floodplains | FEMA.gov “Natural floodplains provide flood risk reduction benefits by slowing runoff and storing flood water.”
 Measure-A-PDF (countyofnapa.org)
 https://www.auditor.ca.gov/pdfs/reports/2021-125.pdf
Agenda Item #5.1.

From: Clay Timon
To: cityclerk
Subject: [External] Building Projects
Date: Saturday, April 22, 2023 7:31:39 AM
I'm very supportive of the Hunter Street project as it will being housing and an increased tax base to the city, which the city desperately needs.

I'm totaly opposed to the mega mansion on Fir Hill. A compound that size has no place in our city and the threat of a lawsuit should not cause the council to cave. Principle is on the side of the city on this one.

Thank you,
Clay Timon
1103 Brittany Lane
St. Helena
Agenda Item #5.1.

From: Elizabeth Green
To: cityclerk
Subject: [External] Press Release - April 21st - Questions Section Date: Saturday, April 22, 2023 10:30:16 AM
Dear Ms. Tzafopoulos,
FYI
I live in Vineyard Valley and worked with Chief Hartley after the Glass Fire to establish the first fire drill two summers ago which we then successfully held again last summer. The back half of our park exited up and over the levee road to Adams Street. The following statement in the press release of April 21 has me greatly concerned.
"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. By providing new roadway connections, the project will allow for both existing and future residents to leave the area during an evacuation."

1. What at exactly are the reasons the police dept. think the Hunter project “will not make evacuations more difficult”?
(I can name several right now)

2. What new roadway connections???
a. Where and when will they be constructed?
b. Does SH actually have any room to construct new roadways leading out of town???
c. Where will the money come from? What guarantee do we have that these new roads will be built?
d. Will these new "roadway connections" be built before, during, or after the Hunter development is built?
e. Where are the plans for these new roads? They will take a very long time to build and if it is after the development is built, we will be in the SAME dangerous situation we are in right now regarding public safety and emergence evacuations.

3. How will the project "allow" for this co-existing evacuation? According to the statement above, they are relying on "new roadway connections" and nothing else.

4. Common sense would dictate that this proposal of new roadway connections which would supposedly "allow for both existing and future HP residents to leave the area during an evacuation" would be planned ahead of approval and building of the Agenda Item #5.1.

development and those plans would be available to the citizens of SH, not just an afterthought.

I have sent this email to Maya DeRosa, the Mayor, and city council members.

Elizabeth Green
Vineyard Valley
Agenda Item #5.1.

P.O. Box 94, St Helena, CA 94574 (707) 302-5111 www.OurTownStHelena.org April 21, 2023
TO: Honorable Mayor and Members of City Council
FROM: Our Town St. Helena Board of Directors
SUBJECT: Hunter Project: Proposed Subdivision Tentative Map / FEIR Overview
In 2022, Our Town St Helena (OTSH) provided written testimony expressing concerns related to the proposed Hunter Project within the constraints of the Tentative Map and Final Environmental Impact Report review processes. In summary, the subdivision as proposed misses the extremely rare opportunity to address St. Helena’s acute housing need. Speculative homes that are likely to be marketed and sold as second homes will do more harm than good in that regard. St Helena needs housing for people who live here full time, work here, shop here, dine here, and attend school here.

OTSH’s primary concerns are:
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 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.

If the tentative subdivision map is approved as proposed, with large single-family lots and one multi-family parcel off to the side, the Council’s approval would be in direct conflict with the 1993 General Plan (the plan in place when the application was deemed complete). More discussion is provided below and in previous communications to the Planning Commission.

The City Council has a rare opportunity to work proactively with the developer of the Hunter Subdivision to create a project that really works for the community. Notwithstanding public safety concerns expressed by others, OTSH believes development on this property should result in higher density than what is proposed to achieve greater affordability. The property is close to downtown, local jobs and services, and schools and would greatly reduce through-town traffic if people who actually worked in nearby businesses could afford to live there. If the applicant is Agenda Item #5.1.

P.O. Box 94, St Helena, CA 94574 (707) 302-5111 www.OurTownStHelena.org interested in helping St Helena solve its acute housing crisis, there are creative ways to make that happen and still generate a return on investment to the developer’s bottom line.

Proposed Tentative Map
Inconsistency with 1993 General Plan
OTSH takes exception to staff’s conclusion that the proposed development is consistent with the 1993 General Plan’s Guiding Policy 2.6.19 which states:
“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.).”
Objectively, the proposed tentative map is inconsistent with 2.6.19 because the large lot where higher-density housing (25 units) would be developed is sized insufficiently to maintain the development character of the single-family homes in the manner the language describes. As drawn, the map pre-supposes a multi-level, multi-family development, with no additional information (i.e., illustrations that show how such a development would be positioned on the site, provide on-site services and parking, etc.).

Other guiding policies in the 1993 General Plan, while more difficult to evaluate objectively, also suggest the proposed subdivision falls short of fully complying with the General Plan.

2.6.14 Encourage a mix of housing types and price ranges to allow choice for current and future generations of St. Helenans.

2.6.16 Encourage the development of higher density housing in areas near the center of town and close to recreation and services.

The policies encourage higher density and more urban housing solutions near the city center so current and future generations can walk or bicycle to town and afford to live close to where they work. The proposed subdivision achieves the lowest density allowed for the single-family lots within the zoning designation, and relies on ADUs and the multi-family “carve-out” to achieve this lowest-allowed density.

Inconsistency with the 2019 General Plan
While the proposed subdivision’s consistency with the 2019 General Plan is not as relevant for the decisionmakers to determine whether to approve or deny the proposed tentative map, it is important for leaders and the general public to be cautious about the use of terms like “market rate” and “more affordable” which are not clearly defined.

City staff’s analysis concluded the proposed subdivision is consistent with the 2019 General Plan and more specifically policies LU2.1 and ES1.4 (below) because “The proposed project includes market-rate single family homes and two types of units intended to be more affordable: accessory dwelling units and multi-family units.”
Agenda Item #5.1.

P.O. Box 94, St Helena, CA 94574 (707) 302-5111 www.OurTownStHelena.org 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.

The use of the term “market rate” to imply the single-family homes will somehow meet RHNA categories should be considered more closely. “Market rate” is simply what the market will support, where RHNA relies on Area Median Income (AMI) to establish categories of affordability for varying income levels and household sizes. Using today’s housing market data, the “market rate” for a single-family home similar in size and configuration to what is being proposed is approximately $2-3 million (conservatively), while a St. Helena moderate-income household earning $95,000-$143,000 can afford to buy a home in the $285,000-$420,000 range.

To truly encourage housing that would serve our community, the Hunter subdivision should be made up of smaller lots to promote higher density and allow for homes the “missing middle” working professionals and younger families in our area will be able afford. OTSH recommends a supportable density would be around 128 (nowhere near the maximum allowed 270). At this density and with a creative approach, the homes could serve households earning 150 to 200 percent of the AMI. We are talking about teachers, medical professionals, small business owners, construction workers, and City personnel, among others. (Furthermore, counting accessory dwelling units (ADUs) as “more affordable” only works if the ADUs are truly serving as housing at affordable prices. To ensure the units truly provide affordable housing, the City must create a policy / program to require the developer restricts and regulates the ADUs. While this is not something that can be considered for the tentative map approval, it should be part of the future affordable housing agreement.) Closing
OTSH firmly believes the proposed tentative map is objectively inconsistent with the 1993 General Plan Guiding Policy 2. 6.19 and should not be approved by the City Council. Further, we encourage the developer and City to work together to create a plan that provides the vital housing our community needs now and into the future to ensure St Helena is a sustainable, economically thriving city with small-town character. We know it takes substantial City resources to process development applications, entitlements and building plan checks, so the City should ensure that the proposed development will meet the community’s needs in exchange for allocation of these limited resources.

We see this as a positive opportunity for the City and developer to work together to achieve mutual goals. We ask the City Council to provide the leadership and the developer the cooperation to go beyond just meeting bare minimum zoning standards so that an innovative, inclusive neighborhood can be created.

Agenda Item #5.1.

1 Cindy Tzafopoulos
From: Joe McGrath <[email protected]>
Sent: Monday, April 24, 2023 9:01 AM
To: Maya DeRosa; Cindy Tzafopoulos; Eric Hall; Joe McGrath Subject: [External] Hunter Subdivision Input
Hi Maya:

Please see my comments below relative to the Hunter Subdivision Tentative Map. Unfortunately I cannot attend the meeting tonight.

Thx,
Joe
************************************************************************************************** ********
As a small developer who has encountered formidable resistance in executing a project in St. Helena, I do not take lightly the responsibility of providing input to another developer's project application.

I will limit my comment to two points:
1) The Housing Element / RHNA / St. Helena
The purpose of the Housing Element and the RHNA allocations as legislated and regulated by the State of California is an attempt to equitably distribute the anticipated population growth of California to all the Counties and Municipalities of the State. The HE process however does not greatly distinguish the unique challenges of every community in California.

In the case of St. Helena and other desirable second home communities, the Housing Element and RHNA processes completely miss the objective in the allocation of target numbers for the "market rate" category of housing. Placing goals on St. Helena to build more market rate housing without capping AMI regarding the  market rate development (ie. 200%, 300%??) serves no purpose other than to open St. Helena up  for speculative development for more second homes. By one account we are closing in on ~60% second homes in the city limits. The Hunter Project as proposed will only grow that number.

I am particularly concerned that the the Chair of the Planning Commission when recommending approval of the Tentative Map for the Hunter Subdivision made a comment to the effect that this project helps achieve RHNA goals both market and below market, and that "all housing is good housing..." in St. Helena that is simply not true, and is a dangerous way to look at our unique challenges,. We will gain no benefit from developing a subdivision that will by economic necessity be targeted to second home buyers. The price for these homes will not be listed <$2M and more likely closer to $3M. As such, building 50+ SF homes will do nothing to serve the needs of this community. We need housing for people who live here full time, work here, shop here, and volunteer here. It is that simple. 2) The same tired old Subdivision Map
At some point, one would hope that we take a fresh look at the way we develop our SIngle Family Subdivisions. Curved streets. Blah. Stop signs and not roundabouts. Blah. Two‐car garage facing the street. Blah. No front yard orientation.

Blah. No porches. Blah. Architectural consistency. Blah. But more importantly. Are there not more creative ways of Agenda Item #5.1.

2 developing the community we desire? What if we doubled the density of the SFH development, reduced the square footages to <2000 SF and cut the entry price (or capped the AMI (say 300%) so that working professional families can purchase them? Teachers. Police. Firefighters. Winemakers. Professional Staff. Etc. Or what if we required ADUS attached to SFHs that are deed restricted and have rental requirements? Then maybe we don't have a deserted neighborhood during weekdays and off‐season. And we bring vitality to the downtown. What if we integrated the affordable housing into the SFH neighborhood with duplexes or fourplexes that were to scale rather than isolating them on a separate parcel? Is this not the code?
California has many, many challenges ahead.

Housing is one of the big ones.

Start thinking out of the box.

The post‐war subdivision model does not fit here.

It actually never did.

Once again. Thanks for listening.

Joe McGrath
Agenda Item #5.1.

FROM THE DESK OF
Maria Villegas
April 23, 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
City Council,
I want to voice my concerns regarding the traffic study and lack of mitigation for increased traffic. The current traffic study does not delineate which month the data was obtained. As you are aware, traffic increases during harvest time with tourist and agricultural vehicles on the roadways accessing wineries.

The EIR fails to assess whether or not the adjusted baseline counts adequately represent peak harvest season conditions or estimates the number of vehicles evacuating during a natural disaster. The EIR is inadequate as an informations document.

Additionally, the EIR does not assess rail operations during temporary blockage during an emergency accessing the Project site when the train passes Adams, Hunt and Pope streets.

The Wine Train schedule changes during peak tourist season. This may affect whether additional trains are added. There was no mention of analysis and its impact.

The EIR should have evaluated the project with the connection of Adams to the Silverado Trail. Even though the City currently has no plans for the connection, given the location of the Hunter Project and the fact that the Adams/Silverado Trail would have dramatic consequences for the livability of the proposed units as well as significantly increased traffic demands at key intersections like Adams, Railroad and Adams with Main and the proposed Starr with Adams. This analysis is absent from the document.

If City Council declares that the benefits provided to the public through the approval and implementation of the Project outweighs the identified significant adverse Agenda Item #5.1.

environmental impact of the Project that cannot be mitigated, it will be doing so with incomplete and misleading data. The adverse impact of the Project is acute.

I am requesting you return the EIR to the Planning Commissioners until a traffic expert can give an accurate traffic analysis which would include the above analysis which is absent in the EIR.

Thank you,
Maria Villegas, Chairperson
St. Helena Citizens for a Sustainable Future
1166 MEADOWCREEK CIRCLE ST. HELENA, CA 94574
Agenda Item #5.1.

1 Cindy Tzafopoulos
From: Mary Alice Stielau <[email protected]>
Sent: Tuesday, April 25, 2023 1:47 PM
To: Public Comment
Subject: [External] Ben Van Zutphen Santa Rosa Project
I hope all of the City Counsel has time to read this brief notice of how Ben Van Zutphen proceeded with his building project in Santa Rosa.
https://www.waterboards.ca.gov/northcoast/board_decisions/adopted_orders/pdf/2015/150824 _0060_Meadows_Oakmont_CAO.pdf
Mary Alice Stielau
18 Los Robles Ct, St Helena, CA 94574
Saint Helena, CA
Agenda Item #5.1.

l
Case No.: 12-00-{r87lP LOMR.APP Page 4 of6 lssue D.te! Juns 19, 2012 Efractfue Datq: Nov€mber 6,2A12 Federal Emergency Management Agency
'{ffi Washington, D.C.2A472

LETTER OF MAP REVISION

DETERTUINATTON DOCUMENT (CONTINUED)

COMMUNITY INFORMATION
APPLICABLE NFIP R.EGULATIONS/COMMUNITY OBLIGATION
We haye made this determination pursuail to Section 206 of the Flood Disaster Protection Act of 1973 (P.L.93-234) and in accordance with the National Flood Insurance Act of 1968, as amended (Title lflI of the Housing and Urban Development Act of 1968, P.L. 90'448), 42 U,S.C. 4001-4128, and 44 CFR Pan 65. Pursuant to Section 136l of the National Flood Insurance Act of 1968' as amended, communities participating in lhe NFIP are rcquired to adopt and enforce floodplain manag€mcnt regulations dtat meet or exceed NFIP criteria. These criterig including adoption of the FIS report and FIRM, and the modifications made by this LOIr'1R" are thc minimum requirements for conlinued NFIP participation and do not supersede morc stringent State/Commonwealth or local requirements to which tre regulations apply.

Therefore, the floodway revision
adopted by appropriate
NFIP regulations Subparagraph 60,3(b)(?) requires communities to ensure that the flood-carrying capacity within tlc altered or relosated portion of any watercoursC is'maintained. This provision is incorporated into your community's existing floodplain management ordinances; tfierefore, responsibility for maintenance ofthe altered or relocated watercourse, including any related appurtenances such as bridges, culvcrts, and othir drainage structurcs, rests with your community. We may request that your community submit a description and schedule ofmaintenance activities neccssary to ensure this requirement.

COMMUNITY RENf,INDERS
We based this determination on the l-percent-annual-chance flood discharges computed in the FIS for your community without considering subsequent changes in waienhed characteristics that could incrcase flood discharges. Future development ofprojects upstregm could causs increased flood discharges, which could cause increased flood hazards. A comprehensive restudy ofyour community's flood hnzards would consider the cumulative effects of development on flood discharges subsequent to the publication of the FIS report for your community and could, therefore, establish greater flood hazards in this area.

Your eommunity musl regulate all proposed floodplain development and ensure that permits required by Federal andlor State/Commonwealth law have been obtained, or based on
or more management those criteria take
precedence over the minimum NFIP requircments.

We will not print and disfibute this LOMR to primary users, such as local insurance sgents or mortgage le$ders; instead' the community will sewe as-a repository for the new data, We €ncourage you to disseminatc the information in this LOlr{R by prepuing a news release for publication in your community's newspaper that describes the revlsion and explalns how your community will provide the data and help interprettheNFIP maps. In that !ray, interested persons, such as property ownersf insurance agents, and mortgage lenders, can benefit from the information.

We provide the floodway designation to your community as a tool to regulate floodplain development. we have descrlbed in this letter, while acceptable to us, must also be acceptablc to your community and communit5r action, as specified in Poragraph 60,3(d) of the MIP regulations' or
This del€nBination i9 ba8€d on $! fiood dsfia pro$ntty lvaihbl3. Th€ enclossd doflments provlda addithnal lnfomslion regE dim lfiis d€lgrmination, lf you have any quest'ons sboul this documEn! plaase mntac, lhe FEMA Mrp lohtmation €Xchat{€ (FMIX) tdl ftce at 1-577.136.2627 $ -8??'FEMA MAP) or by letter adiri$od to the LOMC Clearinghouss, &*7 South Pickofi Str€€|, Ak*.ndila VA 2230a460S Addiliontl lntormellon ebout the NFIP ls availsbl€ on our wabsite sl http Jlwvw. fema, gov/busint3s/nfi p,
125300 PT202.02.8KR.1209,871P,H17 102-l-A.C
Siamak Edandiary, Ph D.. P E , Progrem Speclalict
Engh€sdng Mansgem6nl Ersnch
Federal lngurancB and Mitigation Admini3lrafion
Agenda Item #5.1.

MAINTENANCE OF FLOOD PROJECT COMPONENTS
FLOOD PROJECT COMPLETEDC June 2011
FEMA ISSUED LETTER OF MAP REVISION ( LOMR ) IN JUNE 2012 FEMA requirements for maintenance of flood project components are as follows:

A. NFIP regula�ons Subparagraph 60.3(b)(7) requires communi�es to ensure that the flood-carrying capacity within the altered or relocated por�on of any watercourse is maintained. This provision is incorporated into your community’s exis�ng floodplain management ordinances; therefore, Responsibility for maintenances of the altered or relocated watercourse, including any related appurtenances such as bridges, culverts, and other drainages structures, rests with your community. We may request that your community submit a descrip�on and schedule of maintenance ac�vi�es necessary to ensure this requirement.

B. FEMA further states “State/Commonwealth or community officials, based on knowledge of local condi�ons and in the interest of safety, may set higher standards for construc�on or may limit development in floodplain areas. If your State/Commonwealth or community has adopted more restric�ve or comprehensive floodplain management criteria, those criteria take precedence over the minimum NFIP requirements.

The above is to emphasize how important it is to have qualified people do required inspec�ons and that the deficiencies noted are addressed in a �mely manner. I do not find this to be the case in my review of inspec�on reports since they were started in 2015 three years a�er the LOMR from FEMA. The same deficiencies were reported year a�er year and up un�l the present.

I am sa�sfied that the City of St. Helena hired very capable people in the Mead and Hunt Engineering firm as well as Mitch Swanson as Geomorphologist. The project was built using the highest standards. It was not built by the ACOE because the City of St Helena would have been required to wait approximately ten years to even start the process. This informa�on was provided to me by Eric Sklar who was on the City Council at the �me of the development and construc�on of the project and he was most the most involved CC member working on the development and construc�on. The following are my observa�ons a�er reviewing inspec�on reports from 2015 to 2023.
10-30-15 Josh Shaw and signed by Ste3ve Palmer
A. Erosion of levee embankment at top of outlet behind concrete.

B. Corrosion and rust on metal components
C. No opera�ons or inspec�on records present. No refresher training.

D. Areas where ground is eroding toward base of structure – founda�on concrete structure. 10-26-16 Josh Shaw and signed by Steve Palmer
A. S�ll no emergency procedures. No opera�ons
B. Erosion by Sulphur creek by outlet gate.

C. Gophers present. Burrows control program not effec�ve or non existent.

D. Concrete structure �l�ng and sliding.

E. Joint material erosion.

F. No opera�ons or inspec�on records present. No refresher t raining.

Agenda Item #5.1.

G. Ground eroding at base of structure. ( I assume this is the flood wall. ) 10-17-17 Josh Shaw with signature of Steve Palmer.

A. No emergency procedures.

B. Trash, debris, weeds and small trees along levee.

C. Gopher holes present.

D. Areas of �l�ng, sliding and setlement. Needs repair.

E. Joint material eroding
F. Evidence of ac�ve seepage.
09-24-18 - Darren Gardell Signed by Steve Palmer
A. No emergency procedures.

B. Trash and debris on levee
C. Minor slope stability problem.

D. Erosion occurring on or near levee.

E. Exis�ng animal burrows program needs to be improved.

F. Til�ng and sliding that threatens structure integrity.

G. Ground erosion toward base.

H. Joint material deteriora�on.

I. Evidence of ac�ve seepage.

J. Pump sta�on -NO maintenance and inspec�on records.
12-06-19 Erica Smithers
A. Minimally acceptable.

B. Excessive vegeta�on and trees too close to floodwall.

C. Dog feces thrown over wall.

D. Floodwall setled 3 inches in many loca�ons.

E. Silicone within joints throughout floodwall failing.

F. Pumps inadequately maintained.

G. Sump pump overgrown with blackberry bushes.

H. A PLAN WILL BE DEVELOPED.
04-10-20 Erica Smithies IDENTICAL REPORT
07-22-20 Erica Smithies IDENTICAL REPORT
11-05-20 IDENTICAL REPORT
12-01 20 Erica Smithies
a. Floodwall setling and polyurethane sealant cracking. b. Early signs of erosion Creekside of floodwall.
12-01-20 SOME REMEDIATION DONE
a. Weed abatement along floodwall, access points throughout flood project. b. New generator installed.

Agenda Item #5.1.

c. Contractor has begun cleaning discharge channel, removing invasive trees. d. Crews will u�lize the basil treatment on bushes to mi�gate any future issues. e. Work will be completed in the spring when access is permited for such work. 03-05-21 Mark Rincon --- No indica�on of who did the inspec�on. Hard to believe it is the Department Head.

A. Unwanted vegeta�on growth along levee embankment, blackberry bushes etc. ( S�ll no permit? )
B. Erosion Creekside of wall. Being addressed as part of CIP-R19-03. ( when ? ) 07-07-2021
a. Floodwall setled 1.5 inches ( was 3 “ in 2018 )
b. Small trees and bushes encroaching on floodwall. ( I guess basil treatment didn’t work?) c. Polyurethane sealant – seams falling apart in wall. ( Was supposed to be budgeted for 2021 so why hasn’t it been done?)
d. Dog feces and yard clippings again dumped over wall. ( Did City no�fy Vineyard Valley Manager?)
e. Blackberry bushes returned near well pump.

Recommenda�ons from 07-07-21 report
a. Public Works Engineer to obtain quote during 2021 budget to work on surface cracks in wall. b. Staff will reach out to Vineyard Valley Management about dumping dog feces, fish carcasses and yard clippings over wall.
c. Con�nuous animal burrowing in place that includes the elimina�on of ac�ve burrowing and filling of the exis�ng burrows. ( If this is true then why are there photographs of burrowing s�ll ac�vely taking place. )
d. Floo9d debris buildup at discharge channel from October 21st heavy rain. ( This is 9 months later )
09-14-22 Mark Rincon Ibarra
a. Polyurethane cracking in floodwall s�ll happening. Engineer to obtain quotes within the 2022 construc�on season. ( This has gone on for year a�er year a�er year.) b. Debris in discharge channel. Will be removed as part of RMA work. ( What is RMA) 02-14-23 Mark Rincon Ibarra - Taylor Hamilton
a. Gives an A to animal control. ( This despite con�nued photographing of holes from burrowing.)
b. Some brush and weed growth along floodwall.
c. Plywood, brush clippings, used cigar etc. being thrown over floodwall. d. Wall is s�ll offset.
e. Early erosion base of wall at 17 and 19 Los Robles. ( This erosion first men�oned in 2016) f. Joint material deteriora�ng and cracking at MOST joints around floodwall.

My comments are bracketed. Pat Dell
Agenda Item #5.1.

Agenda Item #5.1.

June 25, 2023
To: Mayor Paul Dohring, Vice Mayor Eric Hall, Council members Chouteau, Hardy, and Summers. City Manager Anil Comello.

From: Pat Dell
I have sent my comments on the Hunter Development EIR to the Planning Commission previously so I will not repeat myself. I have concentrated my efforts in this leter on communica�ng with the City Council and City Manager on Affordable Housing, City fulfilling the FEMA requirements for maintenance and management of the components of the St. Helena Comprehensive Flood Control and River Restora�on Project, safe evacua�on in case of a natural disaster for Vineyard Valley residents as well as the persons who would be living in the Hunter development. The Planning Commission kicked the can down the road to you because they said it met the requirement from the state for affordable housing.

THIS IS NOT AN AFFORDABLE HOUSING PROJECT. It is a development of homes for above moderateincome people. The City is required to build only 66 units of above moderate-income houses in the 6th cycle which is 8 years. Are you going to allow Mr. Hunter to fill that en�re requirement and deny other builders based on having fulfilled your RHNA requirement? No aten�on has been given to the inclusionary housing ordinance which is crucial. I have watched this City avoid, fail, drag its feet, do surveys ad nauseum and not do a thing except help Our Town St. Helena to build the only housing for low income and working people that has happened in the 23 years that I have lived here. The City did have an Affordable Housing Commitee several years ago whose members were authorized to issue an RFP for Affordable Housing Developers to submit a plan for about 35 units for the Adams Street Property. The Commitee received several excellent proposals, the PC liked all of them but the mayor at that �me refused to have any of them presented. This is not a primary issue for any City Council member or City Manager or something would be happening. Our Town St. Helena has between 40 and 60 units of affordable housing in the pipeline. You own with no mortgage the en�re Adams Street property, the railroad property, the Main Street property. I have not heard or read of any ac�on on your part to build affordable housing on any of those proper�es. You should have a St. Helena Housing Agency with staff that understands housing and you should be developing an associa�on with an affordable housing builder such as Burbank Housing who know how to get financing.

I have reviewed the FEMA requirements for the City in the LOMR. I have reviewed the inspec�ons of the components of the flood control project from 2015 to the present �me. This is atached as an addendum because it is three pages long. I am also ataching the FEMA language in the LOMR. The flood project was completed in 2011 and cer�fied in 2012. It took un�l 2015 to start inspec�ons. When they were begun there were no emergency procedures, no opera�ons or inspec�on records present. No refresher training. That remained true in 2016. When reading this I felt sorry for the staff member doing the inspec�on and submi�ng the report. He was crying out for help and ge�ng none. I have atached a full review to this report so I will only say that although the project was built to FEMA and ACOE standards the City was and s�ll is negligent in the maintenance of the project.

My comments regarding safe evacua�on from Vineyard Valley and the Hunter Project are based on my experience as well as the MASTER RESPONSE sec�on of the EIR in the library. This is a response to comments submited by people who are concerned about the project. The St. Helena Police Department has made a judgement call pertaining to evacua�on based on an emergency drill September 20, 2021.

Agenda Item #5.1.

This was not an adequate drill and no one in the SHPD is a traffic engineer. First of all, it was not a surprise. We were all informed ahead of �me. Secondly and most importantly, it only included half of the homes in Vineyard Valley. The residents living on the east side went out over the levy. There are 125 homes on the east side of VV The homes on the west side were told to go out on Pope Street. There are 115 homes on the west side of VV. These people did not have the experience of driving out over the levee. If the emergency is at night there would need to be lights and temporary barriers to prevent people from driving off the levee. If the emergency requires evacua�on of the east side of St. Helena it will be bumper to bumper. You have Stonebridge apartments, Silverado Orchards and Vineyard Valley, all high-density communi�es all trying to get in line on Pope St. Not to men�on the people on Star, Meadowcreek etc. who will also need to get out. This is not a simple evacua�on exercise solu�on to a very serious problem. Apparently the SHFD and SHPD recognized the danger was great enough that it required some emergency accommoda�on. However, none of them are qualified to determine whether there will be damage to the levee by building an onramp for access. This is a disaster wai�ng to happen and you must deny the building of this project.

Make Mr. Hunter an offer he can’t refuse and leave that property agriculture or a proper park for the east side of St. Helena.

Sincerely, Pat Dell
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 3:52:42 PM
Attachments: Beyond the Double Veto.pdf
Developing Policy from the Ground Up.pdf
Getting It Right.pdf
In the Name of the Environment.pdf
When Super-Statutes Collide.pdf
Dear Clerk,
The publications cited in the correspondence provided below are attached. Please ensure that these documents are included in the agenda materials for the May 1, 2023 Special City Council meeting.

Thank you,
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 Agenda Item #5.1.

Phone 415.743.6916 | Fax 415.743.6910
[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.

1 Cindy Tzafopoulos
From: [email protected]
Sent: Thursday, April 27, 2023 1:57 AM
To: Cindy Tzafopoulos
Cc: [email protected]
Subject: [External] Public Comment for May 1 Special City Council Hi Cindy,
Just resending this comment below to make sure it is included in the May 1 Special meeting as a public comment. Thanks as always.

Ann

On 2023-04-10 12:21, [email protected] wrote:

Cindy,
This public comment is for the Hunter project meeting coming up. Please send to City Council, City Manager, Planning and Public Works Directors. Thank you very much. Ann To: The City of St Helena - City Council, Planning Commission, City Manager, City Staff Date: May 2023
We believe the decision to put new development in a flood-risk area that relies on the St Helena levee for flood protection is reckless and endangers people, property, and the financial security of the City and residents of St Helena who are fully liable for levee performance as stated in California AB 1898. (Reference 1)
We ask the city to prepare a detailed analysis of the risk to the city of St Helena and its residents, and inform the public prior to any further action.

We strongly urge that the city negotiate with the State of California to reverse its refusal to accept liability for the levee (Reference 1) , since the State’s public pressure (Reference 2) to approve the new development behind it places extensive and unnecessary risk on the taxpayers of St Helena.
---------------------------------------
Background:

If approved, the new development will fully rely on the City-owned levee for flood protection. Additionally, it will increase flood risk to the existing adjacent properties by replacing the open permeable acreage on the existing historic floodplain with hardscape and increased elevation (Reference 5).

Agenda Item #5.1.

2 Concern for public safety and financial liability have been a long standing issue regarding new development in the residual risk zone behind the St Helena levee.

Citizens have diligently provided public comment with overwhelmingly opposition to any new development that depends on the levee for flood protection; in writing, in meetings with staff and councilmembers, and in person during city council and planning commission meetings.

In addition, local community groups representing a wide range of residents from across the City have worked together to present the inconsistencies, errors, code/zoning violations, safety issues and liability with the proposed development in a flood risk area along the Napa River that will be reliant on our levee for flood protection.

These concerns are only enhanced with climate change projections of continued, heightened weather events such as atmospheric rivers, bomb cyclones, and record-breaking storms worldwide. (Reference 4) In addition, severe scarring from recent wildfires on adjacent hillsides significantly increases runoff to the river and low-lying area. FEMA’s LOMR to St Helena encourages local governments to re-assess flood risks under changing conditions. (Reference 6))
These conditions add even more pressure on the city’s levee system and increase the likelihood of flood damage similar to the State-wide destruction to Levees, Dams, Bridges and Roads causing catastrophic loss of property and life. Just last month, the levee break near the city of Parajo caused widespread evacuations and left behind water soaked properties and displaced residents for months or years to come.

Yet, at the February 7, 2023 Planning Commission meeting which prompted hundreds of individual and community group letters and public comments providing valid documentation and proven legal opinions on issues such as zoning irregularities, flood risk concerns, unintended use of Measure A flood tax funds, and insufficient exit routes in a flood risk area, the Planning Commission approved the subdivision Tentative Map behind the levee.

Importantly, the explanation by city officials for moving forward with this ill-conceived project has centered around the State of California pressuring the City of St Helena to permit new housing on that site, regardless of the impact to St Helena. Yet, the State has refused to accept any liability for levee performance and subsequent damages (in Assembly Bill 1898) so the liability rests squarely on the shoulders of the people and the City of St Helena.

It is unacceptable to put the people of St Helena at such extreme risk. We refuse to accept liability unless the State takes on the liability for enforcing its excessive housing program which was strongly criticized by the CA State Auditor (Reference 8) and pressures the St Helena to make this reckless decision by threatening us with fines, legal action and loss of local control. (Reference 2) Summary of Critical Considerations:
 The City of St Helena built the levee to reduce flood risk after catastrophic flooding occurred 3 times in 25 years to existing properties, not to put more people in harm’s way. Photo 1  The Measure A Flood Tax (Reference 7) was voted in by the people of Napa Co. to reduce flood risk for the existing Napa County population as of the date of the Measure A Ordinance 11/4/95 “None of the projects were intended to encourage population growth…” Section 2. G Against the listed requirements, the proposed new development a) was not existing before the levee was built b) will get direct benefits and enable growth by taking advantage of reduced flood safety building requirements, and eliminating the requirement for properties to purchase FEMA flood insurance.

This is a direct misuse of Measure A tax funds and clearly violates voters’ intent in adopting the Measure.

Agenda Item #5.1.

3  The taxpayers of St Helena are wholly responsible for the operation, maintenance and performance of their levee. This responsibility, cost and liability extends into perpetuity, so St Helena taxpayers carry the costs and liability for the next 5, 50, 100, or 200 years plus, which financially burdens this generation and every future generation of St Helena residents with the liability for property damages and associated public safety.
 There is no Federal liability, because St Helena did not partner with the Federal Army Corps of Engineers in design and construction; it was done by private engineering and construction firms.  There is no State liability. The city borrowed/received funding from the State of California. In providing that funding, the State required that the City take all liability, and the State be indemnified. Verbiage below:

State of California Assembly Bill 1898 (excerpts)
The People of the State of California do enact as follows:
(c) A county or local agency may receive the funds only if it enters into an agreement with the department pursuant to which the city or local agency agrees to indemnify and hold and save harmless the state, its officers, agents, and employees for any and all liability for damages that may result from the project. (d) For the purposes of this section, "liability for damages" includes, but is not limited to, liability for damages relating to the construction or operation of the project or the failure of the project to operate as intended.

Final Conclusion –
Because the proposed new development behind the levee:
 Will put new properties and people on a floodplain that has catastrophically flooded repeatedly,
 Will potentially flood adjacent properties when hardscape replaces permeable open space;
 Will rely solely on the St Helena levee for flood safety;  Will render St Helena Residents fully liable for flood related damage or loss of life on the new development;
 Will burden generations of St Helenans into perpetuity with the full liability and costs as long as the development exists
We residents of St Helena-
 Believe that this is a reckless and unacceptable decision which significantly threatens our financial security, safety and community well-being.  Refuse to be held financially liable for any and all damage, loss, injury or death incurred as a result of levee malfunction, failure or overtopping if new development behind the levee is approved without State assurances for liability.  Insist that the City NOT move forward in any way on development without securing the State of California to reverse its refusal to accept liability (Reference 1) for damages relating to the levee, because the State has threatened[i] the city with the possibility of extreme fines, loss of local planning control and lawsuits to pressure St Helena to approve new development on the flood-risk zone behind the City owned levee.  St Helena elected officials cannot in good faith serve the people of St Helena, by making a decision that jeopardizes the financial liability and risk to St Helenans, its holdings or its public safety. The State cannot remain indemnified by obliging a small local Agenda Item #5.1.

4 community to assume all the risks and costs of State pressure to build in a flood risk area.
*
PHOTO 1 - St Helena properties in 1986 on the same floodplain as the proposed new development behind the city owned levee, illustrating the potential for catastrophic damage to new development in the event of levee failure.

References:
 AB 1898 Assembly Bill - CHAPTERED (ca.gov)
 Consequences of Non-Compliance with Housing Laws.pdf (ca.gov) The State can impose significant fines, bring lawsuits, remove local authority, and more if cities do not follow the State’s housing plan.
 https://berkeleydailyplanet.com/issue/2022-04-03/article/49690 Press Release: California State Auditor releases scathing report on RHNA process. Report finds housing goals are not supportable by evidence.
 Manage Flood Risk | US EPA “Heavy downpours have increased in frequency and intensity worldwide… expected to become more frequent and intense… As a result, the risk of flooding is likely to increase dramatically across the United States.”  Benefits of Natural Floodplains | FEMA.gov “Natural floodplains provide flood risk reduction benefits by slowing runoff and storing flood water.”
 Measure-A-PDF (countyofnapa.org)
 https://www.auditor.ca.gov/pdfs/reports/2021-125.pdf
Agenda Item #5.1.

FROM THE DESK OF
Maria Villegas
April 24, 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 address the Levee and its maintenance for the upcoming City Council Meeting of May 1, 2023. In the City’s response in the FEIR, Levee. Staff Report 2/7/23 pg 26 of 3768.
• Whether the levee was constructed or inspected by the U.S.

Army Corps of Engineers
City Response
The levee was designed and built by the City to meet U.S. Army Corps of Engineers standards. Numerous levees throughout the US are built by local agencies in the same; not all levees are built by the USACOE.

In a Memorandum for Record, date 11 Aug 2009, Subject: Site Visit Trip Report-St. Helena Flood Risk Management and Environmental Restoration Project-Project site visit 6 Aug 2009:

1. Purpose - This is to capture salient observations regarding the existing site conditions and construction activities, as well as to capture discussion points from the PDT’s site visit with the City of St. Helena on 6 Agenda Item #5.1.

Aug 2009, with regard to the St. Helena Comprehensive Flood Protection Project.

2. Background - The City of St. Helena’s Comprehensive Flood Protection Project has been authorized under WRDA2007. Using its own funds (State Revolving Funds), the City began to construct the project in May 2009. This was the first Corps site visit for this project. The PDT intended to observe the “Without-Project” site conditions as much as possible, and observe the on-going construction activities.

3. Site Observation a. They have already almost completed the levee and have begun work on constructing Floodplain Terrace B, the detention pond, and ground densification for the use of the flood wall.

Discussion d. The PM reminded them that this is still the City’s project, it is not a Corps-sponsered project until we determine Federal interest, feasibility, and execute the appropriate agreements.

5. Conclusion - Based on the site visit and the likelihood that the current project as it is being constructed will NOT meet Corps standards.

I suggest we inform HQUSACE as soon as practical.

In a letter dated October 15, 2009, Department of the Army, Laurence M.

Farrell, Lieutenant Colonel, U.S.Army Commanding, addressed to Mary Neilan, City Manager states:

I would like to caution you that until the Assistant Secretary of the Army for Civil Works approves the Feasibility Report and determines that the work the City has performed is integral to the project, the City continues to bear full financial liability for its efforts”.

Additionally, “A). During the course of the site visit and cursory review of the City’s planning documentation, the Corps identified several concerns with the City’s project as it is designed and being constructed. Some of these issues include the structural stability of the floodwall, vegetation within your levee and floodwall system, future operation and maintenance of the flood wall, and potential flooding impact downstream.”
Agenda Item #5.1.

The levee and flood wall do not meet Corps standards. Additionally, the Corps makes it very clear, the City “continues to bear full financial liability for its efforts”.

The levee has been an ongoing issue and continues to create concern.

These concerns are not only the stability of the levee, but the financial liability which will be put on city taxpayers. Our City Council needs to act responsibly and in the best interest of its residents.

I ask that you reject the EIR and not use state requirements for affordable housing to override the lack of mitigation. To say this project will contain affordable housing is a falsehood.

Thank you,
Maria Villegas, Chairperson
St. Helena Citizens for a Sustainable Future
.
1166 MEADOWCREEK CIRCLE, ST. HELENA, CA 94574 (415 595 7165) Agenda Item #5.1.

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Agenda Item #5.1.

Beyond the Double Veto: Housing Plans as
Preemptive Intergovernmental Compacts
CHRISTOPHER S. ELMENDORF +
The problem of local-government barriers to housing supply isfinally enjoying its moment in the sun. For decades, the states did little to remedy this problem and arguably they made it worse. But spurred by a rising Yes in My Backyard (YIMBY) movement, state legislatures are now trying to make local governments plan for more housing, allow greater density in existing residential zones, and follow their own rules when reviewing development applications. This Article describes and takes stock of the new state housing initiatives, relating them to preexisting Northeastern and West Coast approaches to the housing-supply problem; to the legal-academic literature on land use; and, going a bit further afield, to the federal government's efforts to protect the voting rights of African Americans in the Jim Crow South. Ofparticular interest, we will see that in California, ground zero for the housing crisis, the general plan is evolving into something that resembles less a traditional land-use plan than a preemptive and self-executing intergovernmental compact for development permitting, one which supersedes other local law at least until the local government has produced its quota of housing for the planning cycle. The parties to the compact are the state, acting through its housing agency, and the local government in whose territory the housing would be built. I argue that this general approach holds real promise as a way of overcoming local barriers to housing supply, particularly in a world our world where there is little political consensus about the appropriate balance between local and state control over land use, or about what constitutes an illegitimate local barrier. The main weakness of the emerging California model is that the state framework does little to change the local political dynamics that caused the housing crisis in the first place. To remedy this shortcoming, I propose some modest extensions of the model, which would give relatively prohousing factions in city politics more leverage and facilitate regional housing deals.

Martin Luther King Jr. Professor of Law, UC Davis. For comments on earlier drafts, I am indebted to Eric Biber, Sarah Bronin, Steve Calandrillo, Paul Diller, Rose Cuison Villazor, Ethan Elkind, Bob Ellickson, Rick Frank, Dan Golub, Adam Gordon, Brian Hanlon, Rick Hills, David Horton, John Infranca, Tom Joo, Joe Miller, David Schleicher, Rich Schragger, Darien Shanske, Ken Stahl, Ed Sullivan, Tim Taylor, Christian Turner, and Katrina Wyman. This Article also benefited from presentations and feedback at the 7th Annual State and Local Government Law Works-in-Progress Conference at Fordham University, the Binational Workshop on Intergovernmental Relations in Planning Practice at UCLA, and on the Oral Argument Podcast. Thanks also to Michelle Anderson, Jasmine Harris, Jennifer Hernandez, Jed Kolko, Al Lin, and Aaron Tang for various productive conversations along the way; to Peg Durkin, David Holt, and Sam Bacal-Graves for assistance with the research; and to the student editors of the Hastings Law Journal who worked on this Article, especially Gian Gualco-Nelson.

Agenda Item #5.1.

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TABLE OF CONTENTS
IN TR O D U CTIO N ............................................................................................ 82

1. MOTIVATION: BOOMS WITHOUT BOOMTOWNS ................................. 86 A . THE STYLIZED FACTS ............................................................... 86 B . C A U SE S ...................................................................................... 89 C . C ON SEQ UE N CE S ............................................................................. 92

1. Inequality .................................................................... 92 2. E nvironm ent ...................................................................... 93

3. National Economic Welfare .............................................. 93 II. HOW THE EXPENSIVE STATES HAVE TRIED (?) TO MAKE HOUSING MORE A FFO RD A BLE .................................................................................... 94 A. THE NORTHEASTERN MODEL: BUILDER'S REMEDY, SAFE
HARBORS, AND INDIFFERENCE TO MARKET-RATE HOUSING ........ 95

1. The F ram ew ork .................................................................. 95

2. C ritiques ........................................................................... . . 99 B. THE WEST COAST MODEL: SUPERVISED PLANNING FOR PROJECTED POPULATION G ROW TH ................................................................. 100

1. The F ram ew ork ..................................................................... 100 2 . C ritiq u es ................................................................................ 10 6 a. Aiming at the Wrong Target ............................................ 107 b. The Misplaced Presumption of Good Faith .................... 110 III. THE N EW Y IM BY M EASURES ............................................................... 113 A. CALIFORNIA STRENGTHENS THE WEST COAST MODEL ............... 114

1. D evising a B etter Target ....................................................... 114

2. Upending the Presumption of Local Good Faith .................. 116 a. The Standard for a "Substantially Compliant" Housing E lem en t ............................................................................ 1 16 b. Pressure to Remain in Compliance ................................. 117 c. The New, Self-Executing Housing Element? ................... 118 d. The Requirement of Imminently Developable Sites ......... 119 e. An End to Deference on Project-Specific Denials and
D ensity R eductions .......................................................... 120 f Statutory Consequences for Failing to Meet Housing
T a rg e ts ............................................................................. 12 1 B . D EN SITY M AND ATES ................................................................... 124 C . C O N CLU SIO N ................................................................................ 12 8 IV. A WAY FORWARD: "HOUSING ELEMENTS" AS TOP-DOWN AND

BOTTOM-UP DEVICES FOR OVERCOMING LOCAL BARRIERS TO
H O U SIN G ............................................................................................. 12 8 A . ELEMENTS OF THE M ODEL ........................................................... 130 B. THE CASE FOR THE M ODEL .......................................................... 134 [Vol. 71:79
Agenda Item #5.1.

December 2019] BEYOND THE DOUBLE VETO 81

1. From the Top Down: Baseline Change and Lock-In, Done D iscree tly .............................................................................. 13 9

2. From the Bottom Up: Strengthening Pro-Housing Actors in City Politics, and Facilitating Regional Deals ...................... 146 3 . C a v ea ts .................................................................................. 14 9 C O N C L U SIO N ................................................................................................... 15 0 Agenda Item #5.1.

HASTINGS LA WJOURNAL V

INTRODUCTION
In 1971, Fred Bosselman and David Callies famously described a "quiet revolution" in land-use law.' Prodded by the nascent environmental movement, states were fettering local governments with new planning mandates, new requirements for public participation, and new procedures for state-level review of local plans. In some instances, states seemed poised to preempt local land-use authority entirely.

Looking back twenty years later, Callies remarked that the "'ancient regime' of local land use controls" had been "metamorphosed rather than.., overthrown."'2 The quiet revolution had culminated not in state preemption, but rather in the local embrace, or cooptation, of sensitive-lands and growth-control missions, and an overlay of environmental review and statepermitting requirements 3 -what economist William Fischel dubbed "the double veto." 4 Development opponents who had lost a local battle could now use state law and state tribunals to take another whack.

Callies expressed concern that the "plethora of... requirements" might simply "choke off development, the good with the bad.",5 His warning proved prescient. Anti-development interests used the new regulatory frameworks to slow housing production on urban and suburban lands, not just in remote natural areas. 6 In the coastal states that led the "quiet revolution," the supply of new housing was throttled, with devasting equity, economic, and environmental repercussions.7
But something new is afoot. California, posterchild for the housing crisis, is laying groundwork to make heretofore restrictive local governments allow as much new housing as "healthy housing markets" in "comparable regions of the nation" would produce.8 Though a number of states have set quantitative targets for the production of subsidized, income-restricted housing units, and a few states have instructed local governments to accommodate projected population growth with new housing at a variety of price points, California will be the first to assign market-rate housing quotas shaped by a nationally normed standard. 9

1. FRED BOSSELMAN & DAVID CALLIES, THE QUIET REVOLUTION IN LAND USE CONTROL (1971).

2. David L. Callies, The QuietRevolution Revisited, 46 J. AM. PLAN. ASS'N 135, 142 (1980).

3. See generally David L. Callies, The Quiet Revolution Revisited: A Quarter Century of Progress, 26 URB. LAW. 197 (1994).

4. WILLIAM A. FISCHEL, ZONING RULES!: THE ECONOMICS OF LAND USE REGULATION 54-57 (2015) [hereinafter FISCHEL, ZONING RULES].

5. Callies, supra note 2, at 142.

6. See infra Part I.

7. See infra Part I.

8. See infra Subpart III.A.

9. See infra Subpart III.A. 1.
[Vol. 71:79
Agenda Item #5.1.

BEYOND THE DOUBLE VETO
These quotas are to be accommodated by local governments through the "housing elements" of their general plans.'0 Belying its nominal status, the California housing element is transmuting into something that resembles less a traditional land-use plan than a preemptive and self-executing intergovernmental compact for development permitting. The parties to the agreement are the state, acting through its housing agency, and the local government, whose general plan the housing element revises. Developers may apply for permits on the authority of the housing element itself, irrespective of contrary local ordinances, at least until the jurisdiction has produced its quota of housing for the planning cycle. Local governments must provide advance notice to the state before amending their housing elements, and the state agency may respond by decertifying the housing element, exposing the local government to financial and regulatory sanctions.

Beyond the planning mandates, state legislators are also trying more directly to preempt local restrictions on housing density." Pro-housing lawmakers have won national media acclaim for bills to upzone land near transit stations, and to authorize additional dwelling units on parcels locally zoned for single-family homes. 12
This Article describes and takes stock of the new state housing initiatives, relating them to preexisting Northeastern and West Coast approaches to the housing-supply problem; to the legal-academic literature on land use; and, going a bit further afield, to the federal government's efforts to protect the voting rights of African Americans in the Jim Crow South. I shall argue that statutes that directly preempt local restrictions on housing of certain types or densities are prone to failure, but that the emerging California model of the plan as a preemptive intergovernmental compact for development permitting holds some promise as a political solution to the housing-supply problem.

The underlying difficulty is this: local government have, by tradition, very broad authority over land use and housing development, which has come to be exercised through discretionary permitting regimes.' 3 Local governments also have better information than the state about local conditions, preferences, and practices. Under these circumstances, state mandates requiring local governments to allow certain housing types or densities are fragile and easily vitiated. If the state tells localities to allow accessory dwelling units (ADU) on parcels zoned for single family homes, for example, and the localities don't want them, the local governments can bring the localities' zoning into compliance while using discretionary design review to saddle ADU projects with expensive, ad hoc, and unpredictable conditions. Local governments can also use their residual regulatory authority to enact more systematic barriers to ADUs, such as costly building code amendments, setback or parking requirements, fees, layers

10. For citations to the code provisions relevant to this paragraph, see infra Subparts II.B & III.A.

11. See infra Subpart III.B.

12. See infra Subpart III.B.

13. See infra Subparts I.B. & IV.B.

December 2019]
Agenda Item #5.1.

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of internal appeals, and so on. The history of California's ADU statute illustrates this dynamic all too vividly. 14
If the state is to intervene effectively under such circumstances, it is not enough to make discrete, liberalizing changes to the local regulatory baseline for housing development. The state also needs some way to block the retrogressive stratagems of local governments, including bad-faith exercises of permitting discretion.

The emerging California model of the general plan positions the state to do precisely this-and to do it in a manner that is politically discreet and responsive to local conditions, and thus suited to a world (our world) in which there is no general political consensus about the proper balance between state and local control over land use, or about what constitutes an illegitimate barrier to housing supply.' 5 The baseline change occurs not by state legislative command, but through the local government's articulation in its housing element of appropriate densities for developable parcels and a schedule of actions to remove development constraints. These local commitments are made under pressure from the state, as the state determines housing need and penalizes local governments that do not adopt a new, "substantially compliant" housing element every eight years. But the state's hand is not particularly visible, as state-local negotiations over the housing element play out in a low-limelight administrative setting, rather than in the legislative arena.

The housing element's de jure status as a component of the local government's own general plan, and the obscure process through which state approval is obtained, should help state legislators parry any accusation that they have, through the housing-element framework, imposed a statewide zoning map and development code on local governments. Yet, to the extent that housing elements are self-executing and supersede contrary local requirements as a matter of state law, the aggregate set of housing elements has the potential to function much like a statewide zoning and development code, controlling permitting by local governments until such time as the locality has produced its quota of housing for the cycle.

The new regulatory baseline defined by a housing element is substantially, but not completely, locked in. A local government may amend its housing element without the state agency's consent, 6 but doing so is costly. The locality must provide advance notice and a justification, and the agency may respond by decertifying the housing element, exposing the local government to fiscal and possibly regulatory sanctions. This "soft" lock-in mechanism is just about right for a world lacking political consensus about the appropriate balance between local and state control over land use. It discourages local governments from circumventing the regulatory baseline, while leaving open a path for the most

14. See infra Subpart III.B.

15. For citations to the code provisions relevant to the argument previewed here, see infra Parts III & IV.

16. See infra Parts III & IV.
[Vol. 71:79
Agenda Item #5.1.

BEYOND THE DOUBLE VETO
dogged and influential anti-housing jurisdictions to get what they want without bringing down the whole regime.

All in all, the emerging California framework positions a pro-housing governor, acting through the state housing agency, to push very hard against local "NIMBYism" when the political stars align-and also to propitiate locally powerful interests when necessary. 17
One should not be too Pollyannaish though. The California model is very much a work in progress. Its full realization may require changes to the legal standard for a "substantially compliant" housing element,' 8 as well as stronger mechanisms for developers to obtain project-level exemptions from local standards or procedures that hinder plan-compliant projects. And then there is the matter of setting housing targets. The traditional methods have rewarded exclusionary locales with small quotas, 19 and while California's new "healthy housing markets" approach sounds promising, it leaves much to be desired in the statutory particulars. Finally, even if California develops sensible housing targets, local governments with superior information about local practices, conditions, and political tolerances may still manage to bamboozle or cow the state agency into accepting dysfunctional housing elements.

This highlights the California model's most fundamental weakness: the state-law framework positions an agency to pressure local governments from above, but it does not generate bottom-up political incentives for local officials to heed the interests of the outsiders (such as prospective residents) they now ignore. 20 I shall argue, however, that with a few modest tweaks, the California model could also be used to redistribute political authority and policymaking discretion at the municipal level toward relatively pro-housing actors-from the voters to the city council, and from the city council to the mayor. 21 The extensions I propose would also facilitate the sort of citywide and regional housing bargains for which Professors Rick Hills and David Schleicher have advocated.2 2 In sum, the California framework could easily evolve into a source of bottom-up as well as top-down attacks on local barriers to new housing.

The balance of this Article unfolds as follows. Part I furnishes the motivation, briefly describing the transformation in housing supply and prices that has occurred over the last fifty years, and the attendant social, economic and environmental consequences. Part II provides an overview of state frameworks

17. The acronym NIMBY stands for Not In My Backyard, and is an epithet used to describe antidevelopment activists who parochially resist changes to land use in their neighborhoods.

18. The reforms previewed in this paragraph are fleshed out in Part IV.

19. See infra Subpart II.B.2.

20. The outsiders, of course, are the prospective residents who would benefit from expansion of the housing supply.

21. In California, so-called "general law" cities lack a separately elected mayor. See CAL Gov'T CODE §§ 36501, 34851 (West 2019). Section 36501 provides that general law cities shall be governed by a city council, a city clerk, a city treasurer, a police chief, a fire chief and any subordinate officers or employees as required by law. Section 34851 authorizes a city-manager form of government for general-law cities. In these cities, the reallocation of authority could run to the city manager rather than to the mayor.

22. See infra Subpart IV.B.

December 2019]
Agenda Item #5.1.

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that developed from the 1970s to the 1990s for superintending local regulation of housing supply and the critiques these frameworks engendered. Part III describes notable recent reforms to the state frameworks, discussing California's evolution and flagging examples from other states. Part IV offers a tentative defense of planning for housing through preemptive intergovernmental compacts and explains how the California model could be extended to put bottom-up as well as top-down pressure on local barriers to housing supply. I compare the problem of overcoming local barriers to housing supply to the problem the federal government faced in the 1960s when it undertook to dismantle Jim Crow, and I argue that the emerging California model of the plan can be understood as an adaptation of the regulatory paradigm of the federal Voting Rights Act for a structurally similar problem whose solutions are not (yet) the object of a sustaining consensus in the body politic.

I. MOTIVATION: BOOMS WITHOUT BOOMTOWNS
A. THE STYLIZED FACTS
For nearly all of American history, economic development unfolded more or less as follows. 23 A new technology or discovery would make certain places suddenly valuable. Entrepreneurs would locate to these high-value places and bid up wages, causing workers to flood in. A construction boom would ensue, furnishing housing to workers who had relocated from other parts of the country.

Speculative bubbles or a temporary imbalance between supply and demand occasionally drove the price of housing above the cost of construction, but these fluctuations were temporary; soon enough, the price of housing would revert to construction cost.

This familiar pattern has broken down. The major cities of the West Coast and the Northeast have experienced a massive, decades-long economic shock accompanied by meager population growth and little expansion of the housing stock.24 The population influx that has occurred in these economically fortunate places consists mostly of high earners.25 Although wages for low-skilled labor have risen too,26 housing has become so expensive that it's no longer worthwhile for low-skill workers to emigrate from the low-wage regions. 27

23. To read the story briefly summarized in this paragraph in much greater depth, see Peter Ganong & Daniel Shoag, Why Has Regional Income Convergence in the US. Declined?, 102 J. URB. ECON. 76 (2017); David Schleicher, Stuck! The Law and Economics ofResidential Stagnation, 127 YALE L.J. 78 (2017).

24. See David Schleicher, City Unplanning, 122 YALE L.J. 1670, 1675 (2013).

25. See ISSE ROMEM & ELIZABETH KNEEBONE, U.C. BERKELEY TERNER CTR. FOR HOUS. INNOVATION, DISPARITY IN DEPARTURE: WHO LEAVES THE BAY AREA AND WHERE DO THEY Go? (Oct. 2018), https://temercenter.berkeley.edu/disparity-in-departure; Schleicher, supra note 23, at 83, and sources cited therein.

26. The long-term trend toward interstate convergence in wages slowed in the 1980s and has now stopped.

Ganong & Shoag, supra note 23, at 76.

27. See Schleicher, supra note 23, at 82 83, 115 16, and sources cited therein. [Vol. 71:79
Agenda Item #5.1.

BEYOND THE DOUBLE VETO
Proving the point that the escalation of housing prices is not a nationally uniform phenomenon, economists Edward Glaeser and Joseph Gyourko estimate that as of 1985, about 6% of metropolitan regions had a median home price more than 25% above the cost of production. 28 By 2013, the share of metro areas in the high-cost bin had nearly doubled to 10%, still only a modest number. 29 Yet the small subset of metro areas afflicted by high housing prices is very economically significant. Los Angeles, San Francisco, New York, Seattle, the District of Columbia, Boston, and Denver are all in the high-cost bucket.30 These regions have barely expanded their housing supply, even as the affordable metropolises of the South and Southwest-cities such as Atlanta, Charleston, Orlando, Houston, Phoenix, and Las Vegas-issued building permits between 2000 and 2013 totaling 30%-60% of their year-2000 housing stock.31 Geomorphology is an obvious difference between the high-cost coastal cities and their still-affordable counterparts in the South and Southwest, but regulation rather than "oceans and slopes" seems to be the principal housingsupply barrier in high-cost regions.3 2 In a careful study of Manhattan, Glaeser and co-authors found that the cost of adding a new floor to an existing building, while very expensive, was only about half of what the additional living space would sell for.33
The scholarly consensus holds that regulatory bariers to new housing have become much more stringent in the high-cost regions since the late 1960s and early 1970s. 34 Exactly how much more stringent is hard to say, because it is difficult to quantify regional and over-time variation in the intensity of land-use regulation. Local regulations can take an almost innumerable number of formsheight limits, density and lot-size limits, setback requirements, design guidelines, neighbor notification requirements, development fees and in-kind exactions, historical preservation, price restrictions, open space preservation, environmental review requirements, prevailing-wage and local-workface labor requirements, and so forth.35

28. Edward Glaeser & Joseph Gyourko, The Economic Implications of Housing Supply, 32 J. ECON. PERSP. 3, 13 tbl.2 (2018).

29. Id.

30. Id. at 14 n.8.

31. Id. at 19 fig.3.

32. See, e.g., Edward L. Glaeser & Bryce A. Ward, The Causes and Consequences ofLand Use Regulation:

Evidence from Greater Boston, 65 J. URB. ECON. 265 (2009).

33. Edward L. Glaeser, Joseph Gyourko & Raven E. Saks, Why is Manhattan So Expensive? Regulation and the Rise in Housing Prices, 48 J.L. & ECON. 369 (2005).

34. For leading reviews, see FISCHEL, ZONING RULES, supra note 4; Joseph Gyourko & Raven Molloy, Regulation and Housing Supply, in 5B HANDBOOK OF REGIONAL AND URBAN ECONOMICS 1289 (Gilles Duranton et al. eds, 2015).

35. See, e.g., Edward L. Glaeser & Bryce A. Ward, The Causes and Consequences ofLand Use Regulation:

Evidence from Greater Boston, 65 J. URB. ECON. 265, 266 (2009) (describing "remarkable variety" and "astonish[ing] vague[ness]" of land-use regulations uncovered through the authors' in-depth investigation of Boston-area suburbs).

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Moreover, while the original theory of zoning presupposed that conforming projects would be approved as of right, development permitting in the high-cost regions has become thoroughly discretionary, requiring projectby-project negotiations over design, scale, public benefits, affordable housing set asides, and so much more.36 Local governments and neighborhood NIMBYs use this discretion to kill projects they dislike, and though some projects make it through, the delays and uncertainties can be very costly.37 The actual intensity of land-use regulation in a world of discretionary permitting is a function not just of the rules that exist on paper; rather, it is the interactive product of rules, interest groups, and the preferences of local administrators. 38 Economists have tried to quantify and compare the stringency of land-use regulation by surveying nationally representative samples of local public officials, and aggregating the results into indices. 39 The general finding, unsurprisingly, is that metro areas with stricter regulation also have higher housing prices.40 In theory, this could reflect the internalization of aesthetic and congestion externalities from new development, but studies that attempt to quantify benefits as well as costs have largely found that the costs of development restrictions far outweigh the benefits. 41
There is no national time-series dataset on local land use regulation, but scholars have assembled detailed time series for California, the Boston area, and a few other locales. Difference-in-difference studies using these data corroborate the national, cross-sectional analyses: the adoption of most types of development restrictions reduces the number of housing units permitted in the next time period, relative to "control" jurisdictions that did not enact such restrictions. 42 The over-time studies also confirm that in expensive coastal regions, there has been a dramatic upswing in the number and variety of local land-use regulations.
43 There is, however, one important commonality between the high-cost metro areas of the West and Northeast, and the low-cost metros of the South and

36. See generally Daniel P. Selmi, The Contract Transformation in Land Use Regulation, 63 STAN. L. REV. 591 (2011). For an in-depth look at discretionary development permitting in the San Francisco Bay Area, see 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 (2019).

37. O'Neill et al., supra note 36, at 26; see also Edward L. Glaeser & Joseph Gyourko, The Impact of Zoning on Housing Affordability 11 (Nat'l Bureau of Econ. Research, Working Paper No. 8835, 2002), https://www.nber.org/papers/w8835.

38. Cf Glaeser & Ward, supra note 35, at 266 (concluding from detailed study of Boston-area suburbs that one of the most basic facts about land use regulations is that they are "often astonishingly vague").

39. For a review, see Gyourko & Molloy, supra note 34, at 1297 1302.

40. Id. at 1297.

41. See David Albouy & Gabriel Ehrlich, Housing Productivity and the Social Cost of Land-Use Restrictions, 107 J. URB. ECON. 101, 102 (2018), and sources cited therein.

42. See, e.g., Kristoffer Jackson, Do Land Use Regulations Stifle Residential Development? Evidence from California Cities, 91 J. URB. ECON. 45 (2016).

43. See Glaeser & Ward, supra note 32, at 269 71; Jackson, supra note 42, at 48. Using Google's ngram service, Fischel shows that in the corpus of written work known to Google, references to "growth management" were very scarce before 1970 and shot upward after then. See FISCHEL, ZONING RULES, supra note 4, at 194 96. [Vol. 71:79
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1Dc r UL) 9t lit5 I)OBU1Lt V tl
Southwest: density stasis in extant residential neighborhoods.44 Prior to the Great Depression, it was common for single-family homes in growing regions to be torn down and replaced by small apartment buildings.4 5 Yet when housing development picked up again after World War II, the old pattern of residential intensification did not materialize.46 Whether due to the spread of Euclidian zoning,47 the interstate highway system,4 8 or the increasing popularity of private covenants,49 housing development since the 1940s and especially post-1970 has occurred mostly through building on outlying "greenfields" and, to a lesser extent, on repurposed industrial "brownfields."5 ° The main observable difference between the expensive coastal regions and their affordable inland counterparts is that less raw land has been converted from non-housing uses in the former areas.

B. CAUSES
Why did some jurisdictions throw up the barricades to new housing while others continued to welcome development, at least in previously non-residential areas? A standard view, popularized by economist William Fischel in his 2001 book, The Homevoter Hypothesis, places the blame on incumbent homeowners. 51 Risk averse, and deeply concerned about the value of their most important asset (their home), suburban homeowners turn out in droves to oppose any development that might change the character of the neighborhood. Local governments end up functioning as defacto homeowner cartels. There are some puzzles though. No one suburb can exercise much power over the overall supply (and hence, price) of housing in a metropolitan region composed of numerous suburbs. And why would suburban homevoter cartels block housing starting in the 1970s, but not beforehand, and why in the Northeast and the West, but not in the South?
Fischel posits that general price inflation, and the environmental movement, explain the 1970s inflection point. 52 Inflation made homes into more

44. Issi Romem, America's New Metropolitan Landscape: Pockets of Dense Construction in a Dormant Suburban Interior, BUILDZOOM (Feb. 1, 2018), https://www.buildzoom.com/blog/pockets-of-denseconstruction-in-a-dormant-subutban-interior. Romem notes that the 1960s saw a modest upswing in densification, but this was choked offby the 1970s. Id.

45. Id.

46. Id.

47. On which, see William A. Fischel, An Economic History of Zoning and a Cure for Its Exclusionary Effects, 41 URB. STUD. 317, 319 (2004).

48. CLAYTON NALL, THE ROAD TO INEQUALITY: HOW THE FEDERAL HIGHWAY PROGRAM POLARIZED AMERICA AND UNDERMINED CITIES (2018).

49. Ern A. Hopkins, The Impact of Community Associations on Residential Property Values, 43 HOUSING & SoCY 157 (2016).

50. See Romem, supra note 44.

51. WILLIAM A. FISCHEL, THE HOMEVOTER HYPOTHESIS: How HOME VALUES INFLUENCE LOCAL GOVERNMENT TAXATION, SCHOOL FINANCE, AND LAND-USE POLICIES 1, 1, 4 (2001).

52. FISCHEL, ZONING RULES, supra note 4, at 203-07, 212 15.

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economically important assets.53 The environmental movement engendered local open-space and "small is beautiful" initiatives, particularly in affluent, topographically interesting communities, which raised the real price of existing homes.54 This triggered a vicious spiral, as homeowners observing rising prices became more focused on protecting the value of their ever-more-important asset.5 Corroborating Fischel's hypothesis, Saiz finds that metro areas whose natural geography most constrains housing production-and which, therefore, "naturally" experience larger housing-price runups during local economic expansions-are also the metro areas with the tightest regulatory constraints. 56 The small size of towns in the Northeast, and the availability of the ballot initiative in the West, made local governments in these areas particular easy for homeowners to control.57
Empirically, the enactment of growth controls in a given suburb makes it more likely that nearby suburbs will do the same. 58 Thus do the decentralized decisions of many politically independent subdivisions cumulate into regionwide barriers to new housing. Development is pushed outward, into rural exurbs where owners of undeveloped land tend to have more political power, 59 or inward, into central cities, which were long thought to be controlled by "growth machine" business coalitions. 60
If growth machines truly dominated urban politics, the deflection of development pressure from the suburbs might not constrain the regional supply of housing very much. But in economically productive coastal cities, the growth machine ran out of steam. 61 In 1960, Los Angeles was zoned for four times its then-current population.62 Today, it's zoned for the number of people it has.63 Using parcel-level data from New York, Vicki Been and colleagues find that the probability of a parcel being upzoned for higher-density development is

53. See id. at 212 15 (explaining tax laws that make homes an attractive investment during inflations periods).

54. Id. at 203 05.

55. Id. at 214 15.

56. Albert Saiz, The Geographic Determinants of Housing Supply, 125 Q. J. ECON. 1253, 1272 82 (2010).

57. FISCHEL, ZONING RULES, supra note 4, at 163 218.

58. Jan K. Brueckner, Testing for Strategic Interaction Among Local Governments: The Case of Growth Controls, 44 J. UB. ECON. 438, 465 (1998). This is consistent with strategic behavior by participants ina cartel, though it might be innocent copycatting. See id.

59. Michelle Wilde Anderson, Sprawl's Shepherd: The Rural County, 100 CALIF. L. REV. 365, 373 76 (2012).

60. FISCHEL, ZONING RULES, supra note 4, at 296 98.

61. See Schleicher, supra note 23, at 114; Vicki Been, City NIMBYs, 33 J. LAND USE & ENVTL. L. 217, 219-27, 236-45 (2018) (discussing emergence and efficacy of anti-growth groups within cities).

62. Greg Morrow, The Homeowner Revolution: Democracy, Land Use and the Los Angeles Slow-Growth Movement, 1965 1992 3 fig. 1-1 (2013) (unpublished Ph.D. in Urban Planning dissertation, UCLA) (on file with author).

63. Id. More precisely, it has been zoned for 92% of the number of people that it has. Id. [Vol. 71:79
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inversely correlated with the proportion of owner-occupied parcels nearby.64 Homevoters are clearly exercising sway in the central city, not just in homogeneous suburbs. 65
Anti-gentrification activists have also become a fixture of urban politics in expensive cities.66 They are using discretionary permitting regimes and state environmental review laws as leverage to demand expensive "community benefit" concessions from developers, 67 or to block projects outright. The costs, delays, and uncertainties involved in negotiating a community benefit agreement constitute a large, defacto tax on new housing development in the urban core.

One might think that renters, who comprise a large share of the votingeligible population in many cities, would be stalwart allies of developers. But renters vote at much lower rates than homeowners, 68 and though renters are generally more pro-development than homeowners, 69 renters in expensive cities have classic NIMBY preferences. They oppose projects in their neighborhood, even though they would favor citywide measures to increase housing development. 70 Alas, their neighborhood-level preferences are likely to be more consequential for new development (or its absence), since upzoning and projectapproval decisions tend to be made on a neighborhood-by-neighborhood basis, with councilmembers deferring to one another on projects in their districts. 71

64. Vicki Been et al., Urban Land- Use Regulation: Are Homevoters Overtaking the Growth Machine?, 11 J. EMiRiCALLEGAL STUD. 227, 234 (2014). The same pattern occurs inLos Angeles. See CJ. Gabbe, WhyAre Regulations Changed?A ParcelAnalysis of Upzoning in LosAngeles, 38 J. PLAN EDUC. & RES. 289, 295 (2018).

65. See Morrow, supra note 62, for a detailed, 30-year case study of Los Angeles, showing that "local groups of largely affluent, white homeowners used the community planning process to effectively re-direct growth away from their communities towards lower-income, minority areas that did not have strong local organizations to resist these changes." Id. at 14.

66. Been, supra note 64, at 242 45; Nancy H Kwak, Anti- Gentrification Campaigns and the Fight for Local Control in California Cities, 12 NEw GLOBAL STUD. 9, 9 (2018).

67. See generally Vicki Been, Community BenefitsAgreements: A New Local Government Tool orAnother Variation on the Exactions Theme?, 77 U. CHI L. REv. 5 (2010) (describing emergence of contracts between developers and community groups whereby the groups agree not to sue or otherwise oppose a project, in return for benefits from the developer).

68. For a review of the literature and new estimates that plausibly identify the causal effect of homeownership on turnout, see Andrew B. Hall & Jesse Yoder, Does Homeownership Influence Political Behavior? Evidence from Administrative Data (Mar. 26, 2019) (unpublished working paper) (on file with author); see also Brian J. McCabe, Are Homeowners Better Citizens? Homeownership and Community Participation in the United States, 91 Soc. FORCES 929, 948-49 (2013) (finding that homeownership positively correlates with turnout in elections, but not with forms of civic participation that do not affect home values).

69. See Michael Hankinson, When Do Renters Behave Like Homeowners? High Rent, Price Anxiety, and NIMBYism, 112 AM. POL. SCI REv. 473, 477 (2018); William Marble & Clayton Nal, Where Self-Interest Trumps Ideology: Liberal Homeowners and Local Opposition to Housing Development 10 (Mar. 19, 2019) (unpublished working paper) (on file with author); Press Release, Public Policy Institute of California, PPIC Statewide Survey: Californians & Their Government 5 (June 5, 2019), https://www.ppic.org/wpcontent/uploads/ppic-statewide-survey-californians-and-their-government-may-2019.pdf [hereinafter Californians & Their Government].

70. Hankinson, supra note 69, at 473.

71. Schleicher, supra note 23, at 85.

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C. CONSEQUENCES
Baffiers to housing development in the expensive coastal metropolises have at least three types of deleterious impacts: they exacerbate socioeconomic inequality; they induce pollution, particularly greenhouse gas emissions; and they undermine national economic welfare.

1. Inequality
The escalating price of housing in economically productive coastal regions has made incumbent homeowners rich.72 One study finds that returns on housing investments account for nearly all of the much-discussed increase in capital's share of national income since 1970.7" Other studies show that land-use restrictions exacerbate segregation within metropolitan regions.74 There are also serious consequences for socioeconomic mobility across generations. Using income-tax microdata, Raj Chetty and co-authors have shown that intergenerational mobility in the United States varies greatly with geography.75 Some locales "in the United States have relative mobility comparable to the highest mobility countries in the world, such as Canada and Denmark, while others have lower levels of mobility than any developed country for which data are available." 76 Many of the high-opportunity communities are found in the expensive metropolitan areas. 77 If more poor families could afford to emigrate from the South and the declining regions of the Midwest, more poor children would reach the middle class.

72. See, e.g., Glaeser & Gyourko, supra note 28, at 22; David Albouy & Mike Zabek, Housing Inequality (Nat'l Bureau of Econ. Research, Working Paper No. 21916, 2016) (documenting increase in housingconsumption inequality since 1970 and showing that it is mostly due to location-specific changes in dwellingunit value, rather than more dispersion in the size and other observable characteristics of dwelling units consumed by the rich and the poor).

73. See Matthew Rognlie, Deciphering the Fall and Rise in the Net Capital Share: Accumulation or Scarcity?, BROOKINGS PAPERS ECON. ACTIVITY, Spring 2015, at 1, 3. To be sure, a more liberal regime of land use in expensive coastal cities would not necessarily reduce returns to capital. Liberalization would probably reduce the value of the existing housing stock, but increase the value of land.

74. Michael C. Lens & Paavo Monkkonen, Do Strict Land Use Regulations Make Metropolitan Areas More Segregated by Income?, 82 J. AM. PLAN. ASS'N 6, 6 (2016) (showing strong correlation between land use regulation and income segregation across metro areas); Jessica Trounstine, The Geography of Inequality:

How Land Use Regulation Produces Segregation and Polarization 2 (July 2018) (unpublished working paper) (on file with author) (showing that restrictive land use policies exacerbate racial segregation).

75. Raj Chetty & Nathaniel Hendren, The Impacts of Neighborhoods on Intergenerational Mobility II:

County-Level Estimates, 133 Q J. ECON. 1163, 1164 (2018);Raj Chettyet al., Where istheLandof Opportunity? The Geography of Intergenerational Mobility in the United States, 129 QJ. ECONOMICS 1553, 1619 (2014).

76. Raj Chetty et al., supra note 75, at 1556. This is not just the byproduct of chance variation in the distribution of, say, "good families" across localities. Comparing siblings who moved to high-mobility zones at different ages and examining the subset of people who were displaced by adverse economic shocks, it is estimated that one-half to two-thirds of the geographic variation is causal. Raj Chetty & Nathaniel Hendren, The Impacts of Neighborhoods on Intergenerational Mobility: Childhood Exposure Effects and County-Level Estimates 2 4 (May 2015) (unpublished working paper) (on file with author).

77. Arthur Acolin & Susan Wachter, Opportunity and Housing Access, 19 CITYSCAPE 135, 136 (2017). [Vol. 71:79
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2. Environment
Regulatory barriers to housing production in coastal cities displace growth to regions with less temperate climates and more autocentric commuting patterns, resulting in greater greenhouse gas emissions. 7 Americans who move to opportunity nowadays are mostly moving to the Atlantas, Houstons, and Phoenixes of the world, not to the mild coastal climes of Los Angeles, San Francisco, Portland, and Seattle. 79 Within metro areas, development restrictions in city cores and inner suburbs push growth to outlying rural areas, gobbling up land that may have value as natural habitat or parkland, and relegating the new homeowners to greenhouse-gas-intensive commutes.80
California is famous in environmental circles for its ambitious greenhousegas emission targets." So far, the state is making impressive progress-except in the transportation sector.8 2 California has little hope of meeting its 2030 and 2040 targets without a huge reduction in transportation emissions, and this is unlikely to be achieved unless urban and suburban communities start accommodating a lot of new, higher-density housing, particularly near transit 83 stations.

3. National Economic Welfare
As David Schleicher and others have emphasized, barriers to new housing in economically successful metro areas affect national economic welfare.8 4 They deprive would-be residents of the "agglomeration" benefits of dense labor markets, where stiff competition among firms for workers raises wages, where workers have insurance (in the form of fallback job options) in the event that they prove to be a bad fit with one employer, and where innovation is nurtured by the everyday exchanges that occur when people live and work close to others

78. See generally EDWARD GLAESER, TRIUMPH OF THE CITY (2011); Nadja Popovich & Dennis Lu, The Most Detailed Map of Auto Emissions in America, N.Y. TIMES (Oct. 10, 2019) https ://www.nytimes.com/intemctive/2019/ 10 10 /climate/ diving-emissions-map.html.

79. See Schleicher, supra note 23, at 115 and sources cited therein.

80. Christopher M. Jones et al., Carbon Footprint Planning: Quantifying Local and State Mitigation Opportunities for 700 California Cities, 3 URB. PLAN. 35, 48 (2018); Nathaniel Decker et al., Right Type, Right Place: Assessing the Environmental and Economic Impacts of Infill Residential Development Through 2030 5 (Mar. 2017), (unpublished working paper) https://ternercenter.berkeley.edu/ight-type-right-place.

81. See, e.g., David Roberts, California Gov. Jerry Brown Casually Unveils History's Most Ambitious Climate Target, Vox (Sept. 12, 2018), https://www.vox.com/energy-and-environment/2018/9/11/17844896/ califomia-jeriy-brown-caibon-neutml-2045-climate-change.

82. CAL. AIR RES. BD., 2018 PROGRESS REPORT: CALIFORNIA'S SUSTAINABLE COMMUNITIES AND CLIMATE PROTECTION ACT 5 (2018) https://ww2.arb.ca.gov/sites/default/files/2018- 1i/Final2018Report SB150_ 112618_02 Report.pdf

83. Liam Dillon, California Won't Meet Its Climate Change Goals Without a Lot More Housing Density in Its Cities, L.A. TIMES (Mar. 6, 2017), https://www.latimes.com/politics/la-pol-ca-housing-climate-changegoals-20 170306-story. html; David Roberts, California Has a Climate Problem, and Its Name Is Cars, VOX (Aug. 22, 2017), htps://www.vox.com/energy-and-environnent/2017/8/22/16177820/califomia-transportation.

84. See, e.g., Chang-Tai Hsieh & Enrico Moretti, Why Do Cities Matter? Local Growth and Aggregate Growth 5 (Univ. of Chi. Law Sch., Kreisman Working Paper Series in Hous. Law and Policy No. 30, 2015); Glaeser & Gyourko, supra note 37, at 5; Schleicher, supra note 23, at 85 86.

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who are similarly engaged.8 5 Schleicher also observes that mobility barriers make it harder for the Federal Reserve Bank to establish sensible monetary policies.86 A lax monetary policy, calibrated to regions of the United States that have suffered negative shocks, would cause inflation in the thriving regions, whereas a tighter policy suited to the successful regions would perpetuate unemployment in other areas.

Economists have tried to quantify the national-welfare losses from underproduction of housing in expensive coastal markets.87 These efforts are model-dependent and rest on strong assumptions, but by most estimates, GDP would be at least a couple of percentage points higher if housing supply could expand to the "natural" equilibrium point where pice equals the average (nonregulatory) cost of production. 88 II. HOW THE EXPENSIVE STATES HAvE TRIED (?) TO MAKE HOUSING MORE

AFFORDABLE
State efforts to check unduly restrictive zoning in the now-expensive coastal metropolises got underway in the late 1960s and 1970s, around the same time that housing prices in these areas began to separate from prices elsewhere in the nation. Though each state followed its own path, if one squints a bit, one can discern two basic models. I will call these the Northeastern Model and the West Coast Model, after the regions where each predominates. California, Oregon, and Washington (as well as Florida) follow the West Coast Model, while the Northeastern Model is found in New Jersey, Massachusetts, Connecticut, Rhode Island, and Illinois.

The Northeastern Model treats the affordability/housing supply problem as essentially about suburban regulatory barriers to subsidized, income-restricted housing. The primary goal is to get each local government to accommodate its "fair share" of low-income housing, and the primary tool is the "builder's remedy," a judicial or administrative proceeding whereby developers of housing projects with a large proportion of income-restricted units may obtain exemptions from local regulations.

The West Coast Model treats the problem instead as one of local regulatory barriers to producing enough housing to accommodate projected household growth across all income categories. Local governments are required to enact and periodically update a comprehensive plan or "housing element" that

85. Schleicher, supra note 23, at 102. There is also some evidence that people underestimate losses to their own welfare from long commutes. See Alois Stutzer & Bruno S. Frey, Stress thatDoesn 'tPay: The Commuting Paradox, 110 SCANDINAVIAN J. ECON. 339, 340 (2008). Causal claims about this alleged cognitive bias are a bit suspect, since researchers have not been able to randomly assign commutes to workers and compare workers' projected well-being with their realized well-being. But whether or not they undervalue time lost to commuting, buyers and renters in expensive coastal markets are clearly willing to pay big premiums for housing nearjobs and transit-if only the market would provide it.

86. Schleicher, supra note 23, at 88 96.

87. See Glaeser & Gyourko, supra note 37 (reviewing literature).

88. Id. at 24 fig.4.
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explains how the jurisdiction will accommodate its share of state-projected population growth. These plans are subject to review and approval by a state agency. Localities without a compliant plan may lose access to certain funding streams, but traditionally, they have not been exposed to strong builders' remedies.

As we will see, there has been some cross-fertilization between the Northeastern and West Coast states. For example, housing need determinations in California are made in a loosely similar way to housing need determinations in New Jersey, except that California assesses need for market-rate as well as subsidized housing. And, echoing the builder's remedy of the Northeastern Model, California has authorized developers of affordable housing to bypass local zoning rules if the local government lacks a substantially compliant housing element. Conversely, most Northeastern Model states now immunize local governments from the builder's remedy if the locality submits its affordable-housing plan to a state agency and the agency approves it. This is analogous to plan-review under the West Coast Model, except review in the Northeastern Model states only addresses income-restricted housing.

The Northeastern Model and West Coast Model are not the only ways in which states have acted to accommodate more housing, denser housing, or more below-market-rate units. A few states have created incentive programs to encourage denser housing near mass transit, and many more provide for tax abatements or tax increment financing to encourage redevelopment of deteriorating areas. I focus here on the Northeastern and West Coast Models, however, because they capture the principal means by which parent states of expensive local governments have undertaken to regulate locally erected barriers to new housing. As such, these models are the precursors and reference points for the spate of "Yes In My Backyard" housing bills now making their way through the statehouses, the subject of the next Part.

A. THE NORTHEASTERN MODEL: BUILDER'S REMEDY, SAFE HARBORS, AND

INDIFFERENCE TO MARKET-RATE HOUSING

1. The Framework
The Northeastern Model is a legacy of the civil rights movement. Cities in the 1970s were in disarray. White people with means had fled to the suburbs and were using large-lot zoning and other exclusionary tactics to keep poor people and minorities from following behind them.8 9 Civil rights activists demanded state intervention to make the "tight little islands" of suburbia accept their fair share of low-income housing. 90 The aim was to dismantle concentrated urban poverty and racial isolation, giving poor black families in the central cities

89. See generally ANTHONY DOWNs, OPENING UP THE SUBURBs: AN URBAN STRATEGY FOR AMERICA (1973).

90. See Lawrence Gene Sager, Tight Little Islands: Exclusionary Zoning, Equal Protection, and the Indigent, 21 STAN. L. REV. 767 (1969).

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access via housing to the good schools and increasingly bountiful employment opportunities of the suburbs. 9 1
New Jersey's courts in the Mt. Laurel line of cases famously converted this civil rights demand into state-constitutional doctrine. 92 In Massachusetts, Connecticut, Rhode Island, and Illinois, the legislature answered the call.93 But all of these states eventually settled on a similar strategy for opening up the suburbs. A state-level actor-the legislature, an administrative agency, or the courts-sets a target for the number of "below-market rate" (BMR) dwelling units in the territory of each local government.9 4 In New Jersey, BMR quotas emerge from a complicated and contentious process of periodically determining regional "needs" and then jurisdiction-specific "fair shares," 95 whereas Massachusetts, Rhode Island, Connecticut, and Illinois have simply declared that 10% of the housing stock of each locality should consist of BMR units.96 (BMR units are subject to deed restrictions permitting them to be sold or rented only to persons who earn no more than a defined share of the Area Median Income, and at restricted prices.9 7 )

91. See CHARLES M. HAAR, Breaking New Ground: The Role of the Courts in Social Change, in SUBURBS UNDER SIEGE: RACE, SPACE, AND AUDACIOUS JUDGES 3 11 (2d. ed. 1998) (describing background to the Mt.

Laurel litigation).

92. S. Burlington Cnty. NAACP v. Twp. Of Mount Laurel (Mount Laurel 1), 336 A.2d 713, 728, 731 32 (N.J. 1975) appeal dismissed and cert. denied, 423 U.S. 808 (1975); S. Burlington Cnty. NAACP. V. Twp. Of Mount Laurel (Mount Laurel I1), 456 A.2d 390 (N.J. 1983).

93. On the history of the Massachusetts framework, see Sharon Perlman Krefetz, The Impact andEvolution of the Massachusetts Comprehensive Permit and Zoning Appeals Act: Thirty Years of Experience with a State Legislative Effort to Overcome Exclusionary Zoning, 22 W. NEW ENG. L. REV. 381, 384 89 (2001). Regarding Connecticut, see Robert D. Carroll, Note, Connecticut Retrenches: A Proposal to Save the Affordable Housing Appeals Procedure, 110 YALE LJ. 1247, 1253 55 (2001). The Illinois framework, which dates to 2003, is summarized in ILL. HOUS. DEV. AUTH., AFFORDABLE HOUSING PLANNING AND APPEAL ACT: 2013 NON-EXEMPT LOCAL GOVERNMENT HANDBOOK (rev. Jan. 7, 2014), [hereinafter ILL. HANDBOOK], https://www.ihda.org/wpcontent/uploads/2016/03/Final2O13AHPAANELGHandbook.pdf. Regarding Rhode Island, whose framework dates to 1991, see Town of Burrillvillev. Pascoag Apartment Assocs., LLC, 950 A.2d 435, 439 40 (R.I. 2008).

94. Rachel G. Bratt & Abigail Vladeck, Addressing Restrictive Zoning for Affordable Housing:

Experiences in Four States, 24 HOUSING POLY DEBATE 594,596 (2014).

95. The state projects population growth in each of six regions, estimates the share of growth likely to consist of low- and moderate-income people, adds to this the number of low- and moderate-income households in the region who currently lack subsidized housing or inhabit substandard housing, and adjusts for projected demolitions and conversions of existing housing units. Having so determined each region's need, the state allocates a share of it to each political subdivision within the region, weighing the amount of undeveloped land in the subdivision, the characteristics of its population, and the quantity of BMR housing it has produced in the past. See In re Declaratory Judgment Actions Filed by Various Municipalities, 152 A.3d 915 (N.J. 2017) (instructing lower courts on housing-need calculation); Roderick M. Hills, Jr., Saving Mount Laurel?, 40 FORDHAMURB. LJ. 1611, 1619 23 (2013) (discussing controversy).

96. See Sam Stonefield, Affordable Housing in Suburbia: The Importance but Limited Power and Effectiveness of the State Override Tool, 22 W. NEW ENG. L. REV. 323, 339 (2001). Massachusetts has not sidestepped it entirely, however, in those jurisdictions below the 10%-of-housing-stock threshold that seek an exemption from the builder's remedy (on which, see infra notes 96 99 and accompanying text) must submit an affordable housing plan tied to projected population growth in various income categories. See MASS. DEP'T OF HOUS. & CMTY. DEV., G.L. C.40B COMPREHENSIVE PERMIT PROJECTS: SUBSIDIZED HOUSING INVENTORY 11-8 11-10 (2014), https://www.mass.gov/files/documents/2017/10/10/guidecomprehensivepermit.pdf.

97. Bratt & Vladeck, supra note 94, at 598 (comparing BMR housing definition in several states).

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The second feature of the Northeastern Model is the so-called builder's remedy. If a local government denies a project with a substantial fraction of BMR units, typically 20-25%,98 the developer may appeal to a state tribunal and obtain an exemption from otherwise-applicable local ordinances.99 In these proceedings, the burden of proof is on the local government to show that any local interests adversely affected by the project outweigh the regional or statewide need for BMR units.' 00 To prevent local governments from killing BMR projects with delays, Massachusetts and Rhode Island deem qualifying projects approved as a matter of law if the local government fails to act on the permit application within a brief window of time.' 0
' However, only nonprofit or
limited-profit developers are entitled to speedy permitting, which limits the disruptive potential of the "deemed approved" proviso. 102 The final component of the Northeastern Model is a safe harbor. Local governments that have met their BMR target, or that have received state approval of their BMR housing plan, are immune from the builder's remedy. 1 03 98. See, e.g., 45 R.I. GEN. LAwS ANN. § 45-53-4(a) (2019) (25%); In re Adoption ofN.J.A.C. 5:96 & 5:97, 6 A. 3d 445,463 (N.J. Super. Ct. App. Div. 2010), aff'd as modified In re Adoption of N.J.A. C. 5:96 & 5:97, 74 A. 3d 893 (N.J. 2013) ("[A] 20% set-aside requirement has been considered the norm in the administration of the Mount Laurel doctrine."); Stuborn Ltd. P'ship v. Barnstable Bd. Of Appeals, Decision on Jurisdiction, No. 98 01, 1999 WL 34782799, at *6 *7 (Mass. Hous. Appeals Comm., Mar. 5, 1999) (25%).

99. These proceedings take place before an administrative tribunal in Massachusetts, Rhode Island, and Illinois, and courts in Connecticut. ILL. HANDBOOK, supra note 93 (describing the Illinois procedures); see Carroll, supra note 93 (describing the Connecticut procedures); Krefetz, supra note 93 (describing the Massachusetts procedures); Town of Burriville v. Pascoag Apartment Assocs., LLC, 950 A.2d 435, 438 (R.I. 2008) (exemplifying Rhode Island procedures). In New Jersey, the proceedings took place before courts initially, then an agency, and most recently before courts again, since the agency was declared "defunct." See In re Declaratory JudgmentActions, 152 A.3d at 918-22 (summarizing history). Additionally, Rhode Island restricts the builder's remedy to projects that are publicly subsidized. 45 R.I. GEN. LAWS § 45-53-3 (2019). And Massachusetts restricts it to projects proposed by public agencies, nonprofits, and "limited divided" organizations. MASS. GEN. LAWS ch. 40B, § 21 (2019).
100. See ILL. HANDBOOK, supra note 93, at 33; Carroll, supra note 93, at 1255; Krefetz, supra note 93, at 388; Town of Burriville, 950 A.2d at 456.
101. Regarding the expedited, "comprehensive permit" procedure in Massachusetts and Rhode Island, see, respectively, 28 ARTHUR L. ENO, JR. & WWLLAM V. HOVEY, MASS. PRACTICE SERIES § 23.30 (4th ed. Supp. 2016 2017); Erika Barber, Note, Affurdable Housing in Massachusetts: How to Preserve the Promise of"40B" with Lessons from Rhode Island, 46 NEWENG. L. REV. 125, 132 33 (2011). 102. See Ellen Callahan, Will an Increase in Profits Increase Affordable Housing? Examining the Limited Dividend Requirement of Chapter 40B of the Massachusetts General Laws, 50 SUFFOLK U. L. REV. 649, 654 (2017) (describing and critiquing this limitation).
103. Regarding New Jersey, see section 52:27D 313 317 of the New Jersey code; see also In re Adoption of N.J.A.C. 5:96 & 5:97, 110 A. 3d 31, 45 (N.J. 2015) (stating that "substantive certification" of plan "afford[s] the ordinances implementing the housing elements of such municipalities a strong presumption of validity in any exclusionary zoning action and, thus, would provide powerful protection from a builder's remedy"); Hills Dev. Co. v. Twp. Of Bernards, 510 A.2d 621, 651, 653 54 (N.J. 1986) (explaining certification procedure).

Regarding Massachusetts, see title 760, section 56.03 of the Code of Massachusetts Regulations; MASS. DEP'T OF HOUS. & CMTY. DEV., G.L. C.40B COMPREHENSIVE PERMIT PROJECTS: SUBSIDIZED HOUSING INVENTORY II8 11-10 (2014), https://www.mass.gov/files/documents/2017/10/10/guidecomprehensivepermit.pdf (exempting local governments that both have a current, state-approved "housing production plan" in place, and produced affordable units equal to 0. 5% of their total housing stock during the previous year). Regarding Rhode Island, see title 45, section 45 53 4 of the General Laws of Rhode Island (stating that the review board may deny affordable-housing development application if the local government "has an approved affordable housing plan December 2019]
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To obtain the plan-based immunity, localities typically must adopt an inclusionary-zoning ordinance, which requires developers of multi-unit projects to set aside a percentage as BMR units or pay an in-lieu fee.'0 4 Local governments are also encouraged to enact a "density bonus" ordinance, allowing projects with a substantial share of BMR units to be somewhat denser or bulkier than otherwise permitted. '
05 The underlying premises of the Northeastern Model seem to be (1) that the problem of housing affordability deserves the state's attention only insofar as it affects poor people; and (2) that the problem can be redressed only through the construction or rehabilitation of deed-restricted BMR units. Massachusetts, Connecticut, Rhode Island, and Illinois could hardly be more explicit about this, as they condition exposure to the builder's remedy solely on the locality's weak BMR track record or plan, and they provide the remedy solely for builders of BMR units. '
06 And while New Jersey has recognized that a generous supply of new market-rate units may make existing units more affordable-thus reducing the regional need for BMR housing 0 7 the state's courts have resisted efforts to account for market-supply effects in the calculation of regional needs. 10 8 A and is meeting housing needs, and the proposal is inconsistent with the affordable housing plan"); Di. OF PLANNING, R.I. DEP'T OF ADMIN., STATE GuIDE PLAN ELEMENT 423 app. D (2006), http://www.planning.ri.gov/documents/guideplan/shpO6.pdf (repinting guidelines for affordable housing plans). Regarding Illinois, see ILL. HANDBOOK, supra note 93, at 13 (noting, inter alia, that local governments are exempt from builder's remedy if they adopt an affordable housing plan establishing a goal that 15% of all new housing consist of affordable units). In contmst to the other Northeastern states, Connecticut does not appear to offer plan-based immunity. Instead, it limits the threat of the builder's remedy by allowing local governments to adopt a temporary affordable-housing moratoria, provided that certain criteria are met. See CONN. GEN.

STAT. § 8 30g(l) (2019).
104. See Stonefield, supra note 96, at 334 35 (noting that, with the partial exception of Massachusetts, the Northeastern Model states have all pushed local governments to achieve their affordable housing targets through zoning regimes designed to induce private developers to set aside BMR units). 105. See 42 R.I. GEN. LAWS § 128-8.1 (g) (2019) (directing agency to promulgate guidelines for inclusionary zoning and density bonuses); Di. OF PLANNING, R.I. DEP'T OF ADMIN., STATE GUIDE PLAN ELEMENT 423 app.

D (2006), http://www.planning.ri.gov/documents/guideplan/shpO6.pdf (repinting Inclusionary Zoning Guidelines, which call for the BMR set-aside to be offset more than 1:1 with extra market-rate units through a density bonus); In re Adoption of N.J.A.C. 5:96 & 5:97, 6 A.3d 445, 461 64 (N.J. Super. Ct App. Div. 2010), affd, In re Adoption of N.J.A.C. 5:96 & 5:97, 74 A.3d 893 (N.J. 2013) (invalidating Third Round Regulations for implementing Mt. Laurel because, inter alia, the regulations did not provide sufficient density bonuses or other incentives for private construction of BMR housing). 106. See supra text accompanying notes 98 103.
107. See In re Adoption of N.J.A.C. 5:94 & 5:95, 914 A.2d 348, 362 (N.J. Super. Ct App. Div. 2007) (stating that the housing agency had "recognized filtering as the most significant market force in reducing housing need").
108. See id. at 372 75 (criticizing agency's filtering adjustment for disregarding current data on house prices and paying no need to whether local governments actually would increase the supply of market-rate housing).

In 2015, responsibility for fair-share calculations was reassigned to the judiciary pursuant to In re Adoption of N.J.A.C., 110 A.3d 31, and the housing-need determinations since then have not adjusted for filtering. See In re Twp. Of S. Brunswick, 153 A. 3d 981, 994 (N. J. Super. Ct Law Div. 2016) (acknowledging filtering as relevant in principle but stating that neither expert had "satisfactorily addressed the deficiencies identified by the Appellate Division" with respect to filtering estimation); In re Mun. of Princeton, No. MER-L-1550-15, 2018 WL 1352272, at *40-42 (N.J. Super. Ct Law Div. 2018) (same). [Vol. 71:79
Agenda Item #5.1.

BEYOND THE DOUBLE VETO
New Jersey municipality that meets its fair-share obligation for BMR units may zone the rest of its land as restrictively as it wishes. 10 9

2. Critiques
The Northeastern Model has been bashed from many directions."10 The most fundamental concern for present purposes is the deep mismatch between the Model's conception of the housing-supply problem and the actual problems described in Part I. The root problem today is not (or not just) the racist or snooty suburb trying to keep out poor folks, but rather an unwillingness on the part of governments throughout expensive metro areas to allow enough market-rate housing, especially dense housing near transit. As the gentrification fights attest, there are now plenty of affluent whites willing to live near poor people and minorities,"' but there is not enough housing to go around.

Some critics posit the Northeastern Model is not only mismatched to today's housing problems but actually exacerbates them."12 Because Northeastern Model states (other than New Jersey) define the affordablehousing target as a percentage of the total housing stock (10%), rather than as an amount of new housing units,"13 they effectively punish suburban communities that approve market-rate housing projects. Any new market rate units will reduce the BMR share of the community's housing stock, potentially exposing the jurisdiction to builder's remedy lawsuits. There's also some evidence that the Northeastern Model has led suburban governments to buy up developable parcels for protected parks and open space, so that the parcels cannot be used to house locally unwelcome populations. "14 On the other hand, the Northeastern Model may have induced some local governments to accommodate reasonably dense housing projects they would otherwise have rejected. The least fiscally burdensome way for a local government to meet its affordable-housing target is to make it profitable for developers to build projects with a substantial fraction of BMR units. Courts in New Jersey have also put some pressure on local governments to zone for fairly 109. S. Burlington Cnty. NAACP v. Mount Laurel, 456 A.2d 390, 421 (N.J. 1983) (stating that jurisdictions which meet their fair-share obligations are free to enact "large-lot and open space zoning"). 110. Some critics complain that deed-restricted BMR units are a terribly inefficient way to subsidize housing for poor people. See, e.g., Robert C. Ellickson, The False Promise of the Mixed-Income Housing Project, 57 UCLA L. REV. 983 (2009) (arguing for portable housing vouchers instead). Others fault the states for inadequate coumitment. See What Is the Mount Laurel Doctrine?, FAIR SHARE Hous. CTR., htp://fairsharehousing.org/mount-laurel-doctine (last visited Nov. 6,2019). Still, others want the states to better account for the filtering of market-rate units into or out of "affordable" price points. See Hills, supra note 90, at 1639-44.
111. For a review ofthe literature on time trends in white preferences for residential integration, see Nicholas O. Stephanopoulos, CivilRights in a Desegregating America, 83 U. CHI L. REV. 1329, 1351 52 (2016). 112. See, e.g., FISCHEL, ZONING RULES, supra note 4, at 359-62. 113. See supra text accompanying note 96.
114. See FISCHEL, ZONING RULES, supra note 4, at 359 60.

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dense, low-cost housing forms, and have pushed back against BMR requirements that are so onerous as to render development unprofitable.115 The few empirical studies that have tried to sort out how the Northeastern Model has affected total housing supply are inconclusive." 6 About the best that can be said for the model is that while its conception of the housing-affordability problem is too narrow, it has induced construction of BMR units without clearly diminishing the overall supply of new housing.

B. THE WEST COAST MODEL: SUPERVISED PLANNING FOR PROJECTED

POPULATION GROWTH

1. The Framework
The West Coast Model emerged from the wave of enthusiasm for comprehensive planning that washed over the states in the 1960s and 1970s.117 Housing wasn't the focus of the initial planning mandates," 8 but it became much more central in the 1980s and 1990s.119 By 1991, when Washington enacted its 115. Id.
116. A recent difference-in-difference study finds that the Mt. Laurel intervention in New Jersey caused an increase in the multifamily and townhome housing stock in New Jersey counties relative to similar counties in New York, but not Pennsylvania (where the courts have also invalidated exclusionary zoning). See Nicholas J.

Mamntz & Huixin Zheng, Exclusionary Zoning and the Limits of Judicial Impact, J. PLAN. EDUC. & RES. 1 (2018). Another study finds that during the 1990s, a greater proportion of new construction in New Jersey consisted of multi-family units than in seven comparison states. See GARY K. INGRAM & Yu-HUNG HONG, LINCOLN INST. OF LAND POLICY, EVALUATING SMART GROWTH: STATE AND LOCAL POLICY OUTCOMES 25 27 (2009), https://www.lincolninst.edu/sites/default/files/pubfiles/evaluating-smart-growth-full.pdf. In Connecticut, adoption of the Northeastern Model did not reduce housing production in Connecticut suburbs relative to nearby "control" suburbs in New York (a state that has not adopted the model). See Nicholas J.

Mamntz & Harya S. Dillon, Do State Affordable Housing Appeals Systems Backfire? A Natural Experiment, 28 HOUSING POLY DEBATE 267, 269 (2018). On the other hand, there's suggestive evidence that New Jersey suburbs, which voted (unsuccessfully) against the Northeastern Model, have used public "parkland" bonds to buy up and set aside parcels that have low value as parkland but high value for housing development. See Stephan Schmidt & Kurt Paulsen, Is Open-Space Preservation a Form of Exclusionary Zoning? The Evolution of Municipal Open-Space Policies in New Jersey, 45 URB. AFF. REV. 92, 94 (2009). 117. See Daniel R. Mandelker, The Role of the Local Comprehensive Plan in Land Use Regulation, 74 MICH. L. REV. 899 (1976) (describing environmental, civil rights, and federal funding influences on the new planning requirements).
118. Id. at 900.
119. California's framework legislation dates back to 1968, but the Regional Housing Need Allocation (RHNA) and state-review requirements were not established until the early 1980s. See William C. Baer, California's Fair-Share Housing 1967 2004: The Planning Approach, 7 J. PLAN. HIST. 48, 54 62 (2008).

Oregon's framework dates back to 1973 and acquired its modem formby 1979. See Paul A. Diller & Edward J.

Sullivan, The Challenge of Housing Affordability in Oregon: Facts, Tools, and Outcomes, 27 J. AFFORDABLE HOUSING & COMMUNITY. DEV. L. 183, 185 86, 204 10 (2018); Robert L. Liberty, Oregon's Comprehensive Growth Management Program: An Implementation Review and Lessons for Other States, 22 ENVT'L L. REP. 10367, 10368 (1992); Edward J. Sullivan, The Quiet Revolution Goes West: The Oregon Planning Program 1961 2011, 45 J. MARSHALL L. REV. 357, 367 72 (2012). Washington's framework, the Growth Management Act, dates back to 1990. See Paul Marshall Parker, The Evolution of Growth Management in Washington: 25 Years and Counting (2015) (unpublished manuscript), https://www.washingtonapa.org/assets/docs/2015/Events/GMA Gala Event/parkerpresentation gma 25_years and counting.pdf Florida's regime originated in the early 1970s, but state review of local plans for various required elements was 100 [Vol. 71:79
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