■ 244 Kearny Street, 9th Floor, San Francisco, CA 94108 ■ 415-273-9670 ■ www.pzlandlaw.com
Sent via Electronic Mail
February 9, 2023
City Council
City of Visalia
707 W. Acequia Avenue
Visalia, CA 93278
Re: Appeal of Conditional Use Approval No. 2022-23)- Southwest Corner of East K Avenue & South Ben Maddox Way.
Dear Councilmembers,
On January 9, 2023, the Planning Commission reviewed and heard testimony on the above referenced proposed residential development on the southwest corner of East K Avenue and South Ben Maddox Way (“Project”) and ultimately voted unanimously to approve a Conditional Use Authorization for the Project subject to conditions of approval and finding that the Project was exempt from the California Environmental Quality Act (“CEQA”). On January 19, 2023 an appeal of the January 9, 2023 Planning Commission approval was filed by a group of neighbors alleging that the Project would negatively impact surrounding property values, cause crime , overwhelm schools and that the CEQA anal ysis was insufficient due to an alleged sighting of a fox on the Project site. We write this letter in support of the Project and respectfully request that the City Council deny the appeal of the Project’s Conditional Use Authorization as there is no factu al basis for the appeal, the appeal fails to raise to any additional information not previously considered by the Planning Commission and because the Project is a 100% affordable housing project and relies on the State Density Bonus Law (“SDBL”), the City Council (like the Planning Commission), has limited discretion.
In addition, the Project has the full protection of the Housing Accountability Act (“HAA”), including protection against Project disapproval or the lowering of Project density unless the City can find, by a preponderance of the evidence , that the Project would have a specific, adverse impact on public health or safety and there is no feasible way to mitigate or avoid the impact. Those findings require the City Council to identify “objective, identified written public health or safety standards, policies, or conditions as they existed on the date the application was deemed complete”1 as well as affirmatively find that there are no feasible means of mitigating or avoiding such public health or safety impacts other than rejecting the Project or reducing its size .2 We do not believe that those findings can be made and again urge the City Council to deny the Project appeal.
1 Gov. Code Section 65589.5(j)(1)(A).
2 Gov. Code Section 65589.5(j)(1)(B).
2 I. Project Background
The Project proposes to construct a 292-unit multi-family residential development with 100% of the units having restricted rents for lower income residents. The Project is proposed on a vacant 10.8- acre parcel on East K Avenue and South Ben Maddox Way and will also include a total of 578 parking spaces with a combination of covered parking stalls and open parking stalls. The Project will provide on-site amenities including a tot lot, community center, a swimming pool and dog park. Sidewalk and landscaped frontage improvements will be installed, and the Project will be professional ly managed.
The Project’s surface parking along with both new fencing and an existing block wall serve as a buffer from existing residence with Project buildings significantly offset from existing property lines (the proposed setbacks are significantly greater than what is allowed under the City Code). The Project site is designated for dense residential development as it is zoned R -M-2 and is designated Medium Density Residential under the City’s General Plan with multifamily residential development permitted by right. As described below, the Project relies on the SDBL to increase the Project’s density by providing affordable housing, but the Project does not seek relief from City develop ment standards through incentives, concessions or waivers , despite the Project having the right to do so under the SDBL.
II. State Density Bonus Law
Under the SDBL (Gov. Code Section 65915), a project sponsor may seek additional density for a proposed project depending on the amount of affordable housing included in the project and the project sponsor may also seek up to four development concessions and incentives and unlimited waivers to development standards that would physically preclude the development of the project. In exchange for providing 100% of the Project units as for lower income tenants, the Project is seeking additional density over the maximum density allowed under the zoning and general plan. The Project has opted to not rely on any development concessions, incentives or waivers which would have allowed the Project to seek relief from setbacks and open space requirements for example. In fact, as noted above, the Project is setback from existing property lines by more than what is required under the City Code. The Project does seek additional density. Based on the City’s General Plan designation, the Project site has a base maximum residential density of 162 residential units, but the Project is eligible for an additional 80% increase in density under the SDBL in exchange for providing 100% of the units as affordable to lower income residents bringing the Project’s overall density to 292 units.
The SDBL provides no mechanism for a city to den y the award of a density bonus so long as the Project provides the requisite amount of affordable housing. As stated in Wollmer v. City of Berkeley (2009) 179 Cal. App. 4th 933, “…when an applicant seeks a density bonus for a housing development that includes the required percentage of affordable housing, section 65915 requires that the city not only grant the density bonus but provide additional incentives or concessions where needed based on the percentage of low-income housing units.”(emphasis added) The Project is only seeking additional density and is providing the requisite amount of affordable housing to qualify, but is not seeking incentives, concessions or waivers that it is otherwise eligible to receive. The SDBL policy purpose to generate new affordable housing and place limits on the discretionary review of project density
3 reinforced by the fact that if a developer does not even submit a request for a development standard waiver, the City is prohibited from applying a development standard that has the effect of precluding the construction of a development at the density permitted under the SDBL (Gov. Code Section 65915(e)(1)). For example, the City cannot request that the Project relocate buildings further away from existing property lines or limit height as that would have the effect of physically reducing the number of provided units.
While we recognize that the City has discretion in approving a Conditional Use Authorization generally, when a development qualifies for the SDBL and also req uires Conditional Use Authorization, case law supports the position that a discretionary permit such as a Conditional Use Authorization cannot be used to effectively deny a SDBL project. This is because the SDBL itself includes separate required statutorily specified findings needed to deny a SDBL project, supported by evidence in the record , which exceed the typical threshold for denial of a Conditional Use Authorization.3 In sum, the SDBL precludes the application of amorphous development standards or the denial of a proposed qualifying project through a Conditional Use Authorization that would have the effect of denying a SDBL project.
III. Housing Accountability Act Requires Approval
The HAA was created to strongly encourage approval of housing developments like the Project, and to narrowly define the authority of local agencies to deny or significantly condition the approval of such housing developments. Under the HAA, “[w]hen a proposed housing development project complies with applicable, objective general plan, zoning, and subdivision standards and criteria, including design review standards, in effect at the time that the housing development project’s application is determined to be complete …” a local agency cannot disapprove a project or lower its density unless it finds by a preponderance of the evidence that the project would have a specific, adverse impact on public health or safety, and there is no feasible way to mitigate or avoid the impact.4 Pursuant to the HAA, the Project is to “….be deemed consistent, compliant, and in conformity with an applicable plan, program, policy, ordinance, standard, requirement, or other similar provision if there is substa ntial evidence that would allow a reasonable person to conclude that[the Project] is consistent, compliant, or in conformity.” 5 As the City staff’s detailed analysis concludes , there is no question that the Project is consistent, compliant, and in confor mity with the objective standards of applicable City land use plans, programs, policies, ordinances and regulations.
Under the HAA a city has severely limited discretion to deny a project and the HAA sets “…forth the only conditions under which an appli cation may be disapproved.” N. Pacifica, LLC v. City of Pacifica , 234 F.Supp.2d 1053, 1059 (N.D. Cal. 2002), aff’d sub nom. N. Pacifica LLC v. City of Pacifica, 526 F.3d 478 (9 th Cir. 2008). The City Council may not reject the Project or reduce its densit y based on any subjective or discretionary criteria, such as “suitability” or “compatibility.” Honchariw v. Cty. of Stanislaus, 200 Cal.App.4th 1066, 1076, 1079 (2011). In short, the only grounds on which the Project could legally be rejected under the HAA are extremely narrow. For example, before the City Council could legally reject the Project or reduce its density, it would be required to demonstrate, based on a
3 See Gov. Code Section 65915(d)(1)(B).
4 Gov. Code Section 65589.5(j)(1).
5 Gov. Code Section 65589.5(f)(4).
4 preponderance of the evidence, that the Project would cause “a significant, quantifiable, direct, and unavoidable impact” on public health or safety “based on objective, identified written public health or safety standards, policies , or conditions as they existed on the date the application was deemed complete.”6 The City Council would also be required to affirmatively find that there are no feasible means of mitigating or avoiding such public health or safety impacts other than rej ecting the Project or reducing its size.7 Moreover, the Legislature emphasized its expectation that conditions that would have a specific, adverse impact on “public health or safety” would “arise infrequently.”8 In sum, as in the discussion of the SDBL above, the HAA restricts the City Council’s discretion to deny the Project as there is no evidence that the Project would cause quantifiable significant unavoidable impacts on public health and safety. Simple speculation by neighbors about the Project’s impact on property values (not a health or safety concern) or an increase in crime do not rise to the level of necessary evidence to justify Project denial.
IV. CEQA
On October 14, 2014 the City certified an Environmental Impact Report (“EIR”) (Resolution No. 2014-37) for the City of Visalia General Plan. Under Public Resources Code section 21083.3 a specific limitation exists under CEQA for projects that are consistent with a General Plan where an EIR has been certified. In those instances, the CEQA analysis of later projects can be limited to those significant effects that “are peculiar to the parcel or to the project” and that either were not addressed as significant effects in the plan’s EIR or that new information shows will be more signi ficant than when the plan’s EIR was certified. The requirements of this option are detailed in CEQA Guidelines Section 15183.
CEQA Guidelines Section 15183 mandates a streamlined environmental review process for projects that are consistent with the densi ties established by existing zoning, community plan or general plan policies with a certified EIR , except as might be necessary to examine whether there are project - specific significant effects which are peculiar to the project or its site . Section 15183 specifies that examination of environmental effects shall be limited to those effects that:
a. Are peculiar to the project or the parcel on which the project would be located, b. Were not analyzed as significant effects in a prior EIR on the zoning action, gene ral plan or community plan with which the project is consistent,
c. Are potentially significant off-site impacts and cumulative impacts which were not discussed in the prior EIR prepared for the general plan, community plan or zoning action, or d. Are previously identified significant effects which, as a result of substantial new information which was not known at the time the EIR was certified, are determined to have a more severe adverse impact than discussed in the prior EIR.
Section 15183(c) provides that “[i]f an impact is not peculiar to the parcel or to the project , has been addressed as a significant effect in the prior EIR, or can be substantially mitigated by the
6 Gov. Code Section 65589.5(j)(1)(A).
7 Gov. Code Section 65589.5(j)(1)(B).
8 Gov. Code Section 65589.5(a)(3).
5 imposition of uniformly applied development policies or standards, as contemplated by subdiv ision (e) below, then an additional EIR need not be prepared for the project solely on the basis of that impact.” (Emphasis added.) Section 15183(f) then explains that “[a]n effect of a project on the environment shall not be considered peculiar to the p roject or the parcel for the purposes of this section if uniformly applied development policies or standards have been previously adopted by the city or county with a finding that the development policies or standards will substantially mitigate that environmental effect when applied to future projects, unless substantial new information shows that the policies or standards will not substantially mitigate the environmental effect. The finding shall be based on substantial evidence which need not include an EIR.” As detailed in the City staff report, the Project is consistent with the General Plan land use densities as well as the City’s zoning designation and the appeal has offered no evidence that the Project will have impacts peculiar to the Project that are new or more significant than previously analyzed in the certified General Plan EIR.
The appeal suggests that the Project site has “unusual circumstances” due to the presence of a fox on the Project site. While the appeal provides a photograph of a fox with no additional evidence , including when or where the picture was taken and whether the animal depicted is a protected species.
The appeal states that they believe that the animal is a “...native Red Fox, pending species verification…” which is an admission in itself that the allegation is speculative and without necessary evidence, as a non-native red fox is not a protected species . The appeal provide s material from the California Department of Fish & Wildlife (“CDFW”) website suggesting that the animal is a protected Sierra Nevada red fox, but neglects to include the known habitat for the species from the same CDFW web site.9 The Project site is clearly not within the habitat range for the Sierra Nevada red fox . We have provided additional analysis of the Sierra Nevada red fox’s range prepared by H.T. Harvey & Associates (see Attachment 1) who are qualified experts in biology and ecology and they reaffirm the fact that the Project site is not within the known habitat for Sierra Nevada red fox as documented by both the U.S. Fish & Wildlife Service and CDFW and that the closet observations of the Sierra Nevada red fox are from “..observations are more than 60 miles northeast of the..[project site] at an elevational difference of more than 11,000 feet.”
On February 9, 2023, H.T. Harvey & Associates comp leted a site survey of the property (see Attachment 2). The survey confirmed that the site has no peculiar or unusual ecological or biological circumstances and that the site contains no fox dens and that any fox capable of using the site would be both non-native red or gray fox, neither protected under State or Federal regulations.
Based on the foregoing, the appeal’s claim that the City’s reliance on CEQA Guidelines Section 15183 was in error must be rejected because the appeal provides no evidence that “unusual circumstances” exist or that the Project will have “peculiar impacts” not previously analyzed in the certified Genera l Plan EIR. In contrast, we have provided additional evidence, prepared by a biological expert, stating that “…based upon the ranges and habitat preferences of the three red fox species in California, our determination is that the red fox observed within the urbanized area of the Maracor Development parcel in Visalia is a non-native red fox” and that a site visit yielded no fox dens at all.
9 The Sierra red fox is typically found at high elevations (above approximately 5,000 feet in the southern Cascades and 7,000 feet in the central Sierra Nevada) and utilize a variety of habitats including alpine and barren areas, subalpine forests, red fir forests, lodgepole pine forests, mixed conifer forests, and meadows.
6 * * * * *
The Project clearly meets the threshold requirements under the SDBL and provides the required amount of affordable housing . Pursuant to the HAA, the Project is in conformity with objective zoning and planning standards and there is no evidence, let alone a preponderance of evidence, that the Project will have an adverse impact on health and safety and the Project rightfully relied on Section 15183 under CEQA with the appeal providing no evidence, just unsubstantiated and erroneous claims, in support of a challenge to the CEQA analysis. As such, we respectfully request that the City Council deny the appeal and approve the Project to ensure the Proje ct may provide much needed affordable housing units within the City.
If you have any questions or need any additional information, please feel free to contact me at 415 - 273-9670.
Yours Truly,
Peter F. Ziblatt