To: Board of Supervisors
From: John Kopchik, Director, Conservation and Development
Report Title: Grayson Road Subdivision Project Appeal (County File CDSD20-09531)
☒Recommendation of the County Administrator ☐ Recommendation of Board Committee
RECOMMENDATIONS:
Department of Conservation and Development, Community Development Division (CDD) staff recommend that the Board of Supervisors:
1. OPEN the public hearing on an appeal of the County Planning Commission’s decision to deny a 10-lot major subdivision located at 1024 and 1026 Grayson Road in unincorporated Pleasant Hill (County File #CDSD20-09531); RECEIVE testimony, and CLOSE the public hearing.
2. GRANT the appeal of Calibr Ventures.
3. FIND that the mitigated negative declaration prepared for the project adequately analyzes the project’s environmental impacts, that there is no substantial evidence the project will have a significant effect on the environment, and that the mitigated negative declaration reflects the County’s independent judgment and analysis.
4. ADOPT the March 24, 2023 mitigated negative declaration prepared for the project.
5. ADOPT the mitigation monitoring and reporting program prepared for the project.
6. APPROVE an eight percent density bonus (one additional unit), the requested concession to allow the installation of a reconstructed asphalt-concrete curb and bicycle lane striping along the project frontage in lieu of complete frontage improvements, and the requested waivers or reductions in development standards related to minimum lot size, average lot width, lot depth, and setbacks.
7. APPROVE the vesting tentative map for the project.
8. APPROVE a tree permit to allow removal of 97 code-protected trees and work within the dripline of 17 code-protected trees.
9. APPROVE the attached findings in support of the project.
10. APPROVE the project conditions of approval.
11. DIRECT the Director of Conservation and Development to file a CEQA Notice of Determination with the County Clerk.
12. SPECIFY that the Department of Conservation and Development, located at 30 Muir Road, Martinez, CA, is the custodian of the documents and other material which constitute the record of proceedings upon which the decision of the Board of Supervisors is based.
FISCAL IMPACT:
The applicant has paid the necessary application deposit and is obligated to pay supplemental fees to cover all additional costs associated with the application process. No fiscal impact to the County is expected.
BACKGROUND:
Project Background:
This hearing is an appeal of the County Planning Commission’s January 10, 2024 decision to deny a vesting tentative map for the Grayson Road Subdivision Project, County File CDSD20-09531, subdividing a 3.05-acre project site into 10 lots ranging in size from 7,347 to 22,460 square feet. The project is a density bonus subdivision and incorporates waivers and concessions to County General Plan, Zoning and Subdivision standards as provided for in the State’s density bonus law. Two existing, vacant, residences would be demolished to accommodate the project. Implementation of the project could include more than 1,000 cubic yards of grading. To accommodate improvements, a tree permit would be included for the removal of 97 code-protected trees and work within the dripline of 17 code-protected trees.
This application was heard at October 2, 2023, and October 16, 2023, Zoning Administrator hearings, where the Zoning Administrator received testimony from the applicant, neighbors, other interested parties, and representatives of the applicant. At the October 16, 2023 hearing, the Zoning Administrator approved the vesting tentative map for the project with minor modifications to the recommended conditions of approval.
On October 26, 2023, neighboring property owners filed a timely appeal of the Zoning Administrator’s decision. The County Planning Commission heard the appeal on January 10, 2024. Though Staff recommended denying the appeal and approving the project, the CPC voted (5-2) to grant the appeal and deny the project. On January 19, 2024, the applicant appealed the CPC’s decision to deny the project.
Project Description:
The applicant is requesting approval of a vesting tentative map to subdivide the 3.05-acre project site into 10 lots ranging in size from 7,347 to 22,460 square feet. On each new lot, a 4- to 5-bedroom single-family residence ranging in size from approximately 2,900 to 3,500 square feet, is expected to be constructed. Two existing, vacant, residences would be demolished to accommodate the project. Implementation of the project could include more than 1,000 cubic yards of grading.
Associated access, drainage, and utility facilities would be constructed throughout the site. For access, a 28-foot roadway and 4.5-foot sidewalk would connect the lots to Grayson Road. Stormwater flows would be directed to a 2,021-square-foot bioretention basin located at the northeast corner of Lot 2. Treated stormwater will be discharged from the basin into a Contra Costa County maintained stormwater drainage system that currently exists under Grayson Road.
Running southwest to northwest along the southern boundary of the project site is Grayson Creek, a perennial creek. The proposed project does not anticipate placing any development or infrastructure in Grayson Creek or the associated riparian corridor. A riparian setback between the project’s grading limits and Grayson Creek would be included as part of the project. To accommodate improvements, a tree permit would be included for the removal of 97 code-protected trees and work within the dripline of 17 code-protected trees.
The home on Lot 1 would be restricted for-sale to a moderate-income household, therefore the project is eligible for a Density Bonus, waivers or reductions in development standards, incentives and concessions, and parking reductions under the California Density Bonus Law, Gov. Code Section 65915. The applicant has requested and qualifies for a density bonus of 8 percent (one additional unit), a requested concession to allow the installation of a reconstructed asphalt-concrete curb and bicycle lane striping along the project frontage in lieu of complete frontage improvements, and requested waivers or reductions in development standards, as described in more detail below, as authorized under State Density Bonus Law.
Applicable State Law
State Density Bonus Law
The State Density Bonus Law (Government Code, Sections 65915-65918) incentivizes the building of affordable housing by granting developers a density increase over the otherwise maximum allowable gross residential density, as well as other incentives or concessions, waivers of development standards, and parking ratio reductions in return for a commitment to provide affordable housing as part of a development project. If a developer meets the requirements of the Law, a local agency must award a density bonus.
A density bonus is available to housing development projects that comply with at least one of the following criteria:
• At least 5 percent of the housing units are restricted to very low-income households.
• At least 10 percent of the housing units are restricted to lower-income households.
• At least 10 percent of the housing units in a for-sale common interest development are restricted to moderate-income households.
The amount of density bonus depends upon and increases with the percentage of the development made available as affordable housing. In calculating the applicable density bonus “all density calculations resulting in fractional units shall be rounded up to the next whole number,” and “each component of any density calculation, including base density and bonus density, resulting in fractional units shall be separately rounded up to the next whole number.”
In addition to the density bonus, a qualifying development is also entitled to a certain number of concessions or incentives. A concession or incentive is defined as a reduction in site development standards or a modification of zoning code or architectural design requirements, such as a reduction in setback or minimum square footage requirements; or approval of mixed-use zoning; or other regulatory incentives or concessions that result in identifiable and actual cost reductions. A requested concession or incentive may not be denied unless the local agency makes a written finding, based upon substantial evidence, of any of the following:
(A) The concession or incentive does not result in identifiable and actual cost reductions.
(B) The concession or incentive would have a specific, adverse impact upon public health and safety and for which there is no feasible method to satisfactorily mitigate or avoid the specific, adverse impact without rendering the development unaffordable to low-income and moderate-income households.
(C) The concession or incentive would be contrary to state or federal law.
The State Density Bonus Law also provides that the local agency may not apply any development standard that will have the effect of physically precluding the construction of a development at the permitted density (including the density bonus) or with the requested concessions or incentives. That is, a developer may request, and the local agency must grant, an unlimited number of waivers or reductions of development standards if application of the standard would physically preclude construction of a qualifying development at the density and with the concessions or incentives permitted under the State Density Bonus Law.
Housing Accountability Act
The Housing Accountability Act (HAA) (Government Code, Section 65589.5) provides additional safeguards for housing development projects. When 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, the local agency may disapprove the project or impose a condition that the project be developed at a lower density only if the decision is based upon written findings supported by a preponderance of the evidence on the record that both of the following conditions exist:
(A) The housing development project would have a specific, adverse impact upon the public health or safety unless the project is disapproved or approved upon the condition that the project be developed at a lower density. A “specific, adverse impact” means a significant, quantifiable, direct, 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.
(B) There is no feasible method to satisfactorily mitigate or avoid the adverse impact identified, other than the disapproval of the housing development project or the approval of the project upon the condition that it be developed at a lower density.
For purposes of the HAA, the receipt of a density bonus is not a valid basis on which to find a proposed housing development project is inconsistent, not in compliance, or not in conformity, with an applicable plan, program, policy, ordinance, standard, requirement, or other similar provision specified in this subdivision.
Density Bonus Request
The applicant requests a density bonus and proposes to restrict one lot (Lot 1) for affordable housing and to make it available for sale to a moderate-income household.
• Project site: 3.05 gross acreage
2.76 net acres (proposed right-of-way and private road area are deducted)
• General Plan SL Land Use Designation allows 1.0 - 2.9 units per acre
• Base density: (2.76 net acres) * (2.9 units per acre) = 8.004 units
• Percent of units made available for sale to moderate-income households: (1 unit ) / (8.004 units) = 12.49%, rounded up to 13%
By making 13% of base units available for sale to moderate-income households, the project qualifies for an 8% density bonus.
• Density Bonus Calculation: (9 units, rounded up from 8.004) * (0.08) = 0.72 units, fractional unit rounded to 1 unit; 9 units + 1 unit = 10 units
The project also is entitled to one concession or incentive. As a concession, the applicant requests the installation of a reconstructed asphalt-concrete curb and bicycle lane striping along the project frontage in lieu of complete frontage improvements.
The applicant has also requested waivers or reductions from R-15 development standards that will allow for: (a) a reduction in minimum lot size for Lots 1 and 4- 10; (b) a reduction in the minimum lot width for Lots 1-10 to allow lot average widths as low as 56 feet; (c) a reduction in minimum lot depth for Lot 1; and (d) reduced residential setback requirement to allow 14-foot front setbacks and 0-foot setbacks for retaining walls. The project is seeking these reductions and waivers because application of the required standard would physically preclude the development of the project at the proposed density with the proposed one moderate income unit.
Site/Area Description
The 3.05-gross-acre project site is located on the south side of Grayson Road, opposite the intersection of Grayson Road and Buttner Road in unincorporated Pleasant Hill. The roughly L-shaped project site is comprised of two parcels: a northern parcel that fronts on Grayson Road, and a southern parcel that is bound by Grayson Creek to the south and east. Grayson Creek runs roughly east-west along the southern boundary of the project site, then takes a northward bend forming the east boundary. Other private properties with single-family residences abut the property to the north and west.
The immediate surrounding area is representative of single-family residential development in central Contra Costa County. Properties along Grayson Road are predominantly developed with single-family residences. Within a half-mile radius, developed parcels range in size from 4,000 square feet to 68,700 square feet, with a median size of approximately 13,000 square feet. The larger vicinity includes a mix of neighborhood- residential uses including single-family residences, churches, schools, and parks.
Regional access to the site is provided via I-680 by way of Gregory Lane and Taylor Boulevard and is also provided via State Route (SR) 24 by way of Pleasant Hill Road/Taylor Boulevard. Local access to the project site would be provided via Grayson Road and a new private internal street.
General Plan Consistency
The proposed project would conform to the applicable General Plan land use designation of SL, Single-Family Low Density, 1.0-2.9 units per acre. As described above, the project proposes to utilize a Density Bonus pursuant to the State Density Bonus Law, under Government Code Section 65915.
The density of the proposed project would be 3.62 dwelling units per net acre, which would be deemed consistent with the SL Land Use designation density range of 1 to 2.9 dwelling units per acre as a result of the utilization of a Density Bonus. The applicable density range would ordinarily result in a maximum of 9 units on the site. However, due to application of the density bonus, the maximum development capacity of the site is 10 units.
Government Code Sections 65915(j)(1) and 65915(C)(5) state that either granting a density bonus, concession, incentive, or waiver, “Shall not require or be interpreted, in and of itself, to require a general plan amendment, local coastal plan amendment, zoning change, study, or other discretionary approval.” This language means that the applicant’s requests made pursuant to the Density Bonus Law do not require a General Plan Amendment to accommodate the additional density in the proposed project.
The County’s land use compatibility standards contained in Figure 11-6 of the Noise Element, ambient noise environments are considered normally acceptable for new single-family residential land use development with noise levels ranging up to 60 A-weighted decibel (dBA) Community Noise Equivalent Level (CNEL)/day/night average sound level (Ldn). Environments with noise levels from 55 dBA to70 dBA CNEL/Ldn are considered conditionally acceptable for new single-family land use development; and such development should be undertaken only after a detailed analysis of the noise reduction requirements is made and needed noise insulation features are included in the design. Environments with noise levels from 70 dBA to 75 dBA CNEL/Ldn are considered normally unacceptable for new single-family land use development, and clearly unacceptable for levels above 75 dBA CNEL/Ldn.
Two noise measurement surveys were taken to determine existing noise levels at the project site. The dominant noise source in the project vicinity was found to be traffic noise on adjacent roadways and lawnmowing. The noise survey documented that existing ambient noise levels on the project site range from 61 dBA equivalent continuous sound level (Leq), as measured at approximately 20 feet from the edge of Grayson Road, to 47 dBA Leq at the project boundary adjoining 2043 Mohawk Drive property. The noise measurement survey files are included in the FCS Draft IS/MND report. These noise measurements were taken during the peak noise hours of the day, and represent the expected highest hourly average noise levels that are experienced on the project site. Resulting 24-hour average noise levels would be even lower when averaged with quieter hours of the day. Therefore, the existing ambient noise environment of the project site is within the conditionally acceptable range for new residential land use development. For conditionally acceptable noise environments, new construction or development should be undertaken only after a detailed analysis of the noise reduction requirements is made and needed noise insulation features included in the design. Conventional construction, but with closed windows and fresh air supply systems, will normally suffice.
Zoning Consistency
The Zoning District for the project site is Single-Family Residential (R-15). The project, as proposed, would not be consistent with the R-15 development standards with respect to minimum lot size, lot width, lot depth, or setbacks. However, the applicant has requested waivers or reductions of these development standards as allowed under the State Density Bonus law.
The applicant has requested waivers or reductions of development standards pertaining to:
(a) a reduction in minimum lot size for Lots 1 and 4-10;
(b) a reduction in the minimum lot width for Lots 1-10 (instead of 100 feet);
(c) a reduction in minimum lot depth for Lot 1;
(d) a reduction in minimum front yard and side yard setback and
(e) a waiver of the setback requirement for retaining walls.
The proposed lot sizes, lot width, depth, and setbacks, are shown in the following table. The applicant is seeking these reductions and waivers because application of the R-15 development standards would physically preclude the development of the project at the permitted density with the proposed one moderate income unit. With the requested waivers and reductions, the project would be considered consistent with the R-15 single-family residential zoning district.
|
Lot # |
Area ( 15,000 Sq. Ft.) |
Depth (100 Ft. Min.) |
Average Width (100 Ft. Min.) |
Front Yard Setback (20 feet) |
Side Yard Setback (25 feet aggregate, no yard less than 10 feet) |
Retaining Walls 6’ or less |
|
Lot 1 |
7,347 |
87.45 |
84.01 |
20’ feet to face of garage; 14’ Feet to living area |
15 feet aggregate, (no yard less than 5 feet) |
0’ |
|
Lot 2 |
22,460 |
331 |
67.85 |
20’ feet to face of garage; 14’ Feet to living area |
15 feet aggregate, (no yard less than 5 feet) |
0’ |
|
Lot 3 |
15,236 |
270 |
56.43 |
20’ feet to face of garage; 14’ Feet to living area |
15 feet aggregate, (no yard less than 5 feet) |
0’ |
|
Lot 4 |
14,257 |
144 |
99.01 |
20’ feet to face of garage; 14’ Feet to living area |
15 feet aggregate, (no yard less than 5 feet) |
0’ |
|
Lot 5 |
14,713 |
195 |
75.45 |
20’ feet to face of garage; 14’ Feet to living area |
15 feet aggregate, (no yard less than 5 feet) |
0’ |
|
Lot 6 |
11,261 |
163 |
69.09 |
20’ feet to face of garage; 14’ Feet to living area |
15 feet aggregate, (no yard less than 5 feet) |
0’ |
|
Lot 7 |
11,360 |
166 |
68.43 |
20’ feet to face of garage; 14’ Feet to living area |
15 feet aggregate, (no yard less than 5 feet) |
0’ |
|
Lot 8 |
13,388 |
185 |
72.37 |
20’ feet to face of garage; 14’ Feet to living area |
15 feet aggregate, (no yard less than 5 feet) |
0’ |
|
Lot 9 |
13,655 |
173 |
78.93 |
20’ feet to face of garage; 14’ Feet to living area |
15 feet aggregate, (no yard less than 5 feet) |
0’ |
|
Lot 10 |
14,013 |
220 |
63.70 |
20’ feet to face of garage; 14’ Feet to living area |
15 feet aggregate, (no yard less than 5 feet) |
0’ |
County Tree Protection and Preservation Ordinance
The County Tree Ordinance provides for the protection of certain trees by regulating tree removal while allowing for reasonable development of private property. Project design includes the avoidance of approximately 30 percent of the on-site trees, all other trees will be removed and replaced. Mitigation Measure Biology 2 prescribes replacement of all trees removed from the on-site Valley Oak Woodland in-kind and on- site at a 3:1 ratio for native trees, or out-of-kind at 1:1 ratio for non-native trees, to be replaced with native trees. This is consistent with the Contra Costa County Tree Protection and Preservation Ordinance implementation and practice.
Inclusionary Housing Ordinance
The project is subject to County’s Inclusionary Housing Ordinance (Chapter 822-4). Pursuant to the Ordinance, a residential development of five or more for-sale units shall require at least 15 percent of the for-sale units to be developed and sold as affordable units. At least twenty percent of the inclusionary units shall be sold at an affordable price to lower-income households. The remaining inclusionary units shall be sold to moderate-income families at an affordable price.
Under the Ordinance, the project is required to provide 1.35 inclusionary units (9 total base units x 0.15 = 1.35 units). The applicant submitted a revised project proposal, dated March 25, 2022, that included an Inclusionary Housing Plan and the density bonus request that proposed to construct one for-sale moderate-income inclusionary unit (affordable to households with an income up to 120% of Area Median Income) on Lot 1 of the property. The unit on Lot 1 will be an approximately 3,097-square-foot single-family detached home consisting of four bedrooms. The one moderate-income unit is proposed to satisfy the project’s Inclusionary Housing Ordinance requirements as well as qualify the project for the requested density bonus. The applicant must comply with both the Inclusionary Housing Ordinance and State Density Bonus law with respect to development of the one moderate-income unit, and the most restrictive requirements would apply.
The Applicant has proposed to pay a partial in-lieu fee for the fractional 0.35 inclusionary unit. The current calculation of the partial in-lieu fee for the fractional inclusionary unit is $15,444.00. The final calculation of the in-lieu fee will be calculated upon payment. This in-lieu fee is non- refundable and non-transferable.
Traffic and Circulation
Policy 4-c of the Growth Management Element of the Contra Costa County General Plan requires a traffic impact analysis of any project that is estimated to generate 100 or more AM or PM peak-hour trips. Based on the Institute of Transportation Engineers (ITE) peak period trip generation rates of 1.0 trip per dwelling unit for single-family residences, the proposed project consisting of the ten-lot subdivision, and the future construction of 10 single-family residence (8 net new units) would generate an additional eight AM and eight PM new peak period trips, and therefore, is not required to have a project-specific traffic impact analysis. Since the project would yield less than 100 peak-hour AM or PM trips, the proposed project would not conflict with the circulation system in the Pleasant Hill area.
The proposed subdivision project includes a new 28-foot-wide access road which would permit two 10-foot travel lanes and an 8-foot wide parking area on one side of the street. Additionally, a 5-foot wide, monolithic, elevated sidewalk would be constructed adjacent to the new road to provide access for pedestrians and persons with disabilities within the project. Along the project frontage, the project will provide a reconstructed asphalt- concrete curb along the edge of pavement of Grayson Road, as well as bicycle lane striping in-lieu of complete frontage improvements.
The Density Bonus application submitted to the County has requested that the installation of the complete frontage improvements be omitted in lieu of a reconstructed asphalt-concrete curb along the edge of pavement of Grayson Road along the project frontage as well as bicycle lane striping, as shown on the Tentative Map.
Improved frontage improvements are defined as curb, gutter pan, and a sidewalk. No complete frontage improvements exist along the southern portion of Grayson Road, from the intersection of Reliez Valley Road to the west and Heritage Hills Drive to the East (that road segment is in excess of 2,000 feet in length).
Complete frontage improvements would be prohibitively expensive given the length of the project frontage (354 feet), the required grading, tree removal, and utility requirements. In addition, there is no sidewalk along the southern side of Grayson Road to connect with, in 1,000 feet in either direction. The adjacent properties that front along Grayson Road are not expected to develop in the future. Finally, existing Grayson Road has adequate width to support two travel lanes, parking, and a bike lane. Therefore the overall the surrounding circulation system is consistent with the Complete Streets policy.
The Complete Streets Policy, adopted by the Contra Costa County Board of Supervisors on July 12, 2016, requires Complete Streets infrastructure sufficient to enable reasonably safe travel along and across the right of way for each category of users be incorporated into all planning, funding, design, approval, and implementation processes for any construction, reconstruction, retrofit, maintenance, operations, alteration, or repair of streets (including streets, roads, highways, bridges, and other portions of the transportation system), except that specific infrastructure for a given category of users may be excluded if an exemption is approved via the process set forth in section C.1 of the policy. The policy applies to both publicly owned roads/land and private developments (or redevelopment areas). Additionally, the County General Plan includes many policies promoting pedestrian and bicycle facilities. As designed, the project would be consistent with this policy.
Drainage
The proposed project would comply with applicable water quality and discharge requirements. The proposed project would add an estimated 50,825 square feet of new impervious surface area. The C.3 requirements stipulate that projects that create or replace 5,000 square feet or more of impervious surface must incorporate specific measures to reduce runoff, such as dispersion of runoff to vegetated areas, use of pervious pavement, installation of cisterns, and installation of bioretention facilities or planter boxes. Implementation of these measures would be required as a condition of approval.
An existing 24” reenforced concrete pipe within Grayson Road currently collects stormwater runoff from upstream properties. The 24” storm drainpipe connects to two 6x6 concrete boxes under Grayson Creek and discharges water directly to Grayson Creek.
Most runoff on the project site would be directed to a 674-cubic-foot bioretention basin located adjacent to Lot 2 for treatment. Once treated, runoff would be directed to the public storm drainpipe beneath Grayson Road. A portion of the runoff would bypass this treatment system and instead enter the existing 24-inch pipe in Grayson Road. According to the Hydrology and Stormwater Detention Report, the 24-inch pipe has adequate capacity to capture this amount of stormwater runoff, even in a 100-year storm event. This would ensure that project runoff would not exceed existing conditions.
California Environmental Quality Act (CEQA)
In accordance with the state Guidelines for Implementation of the California Environmental Quality Act (CEQA), an Initial Study was prepared to determine the potential environmental impacts of the proposed development project. The initial study identified potential impacts in the areas of Air Quality, Biological Resources, Cultural Resources, Geological Resources, and Tribal Cultural Resources. Upon completion of the Initial Study, it was determined that mitigation measures could be incorporated into the project description that would reduce these project impacts to a less than significant level. These mitigation measures have been incorporated into the project as recommended conditions of approval.
The Initial Study, Notice of Public Review, and Notice of Intent to Adopt a Mitigated Negative Declaration were first posted with the County Recorder and circulated for public and agency review on April 22, 2022. In response to extensive comments from the California Department of Fish and Wildlife, the applicant revised the project and updated multiple studies, including the Biological Resources Analysis and associated mitigation measures. The revised MND was then prepared and circulated for public and agency review on March 24, 2023. The final day for providing comments on the adequacy of the Initial Study was April 24, 2023. Two agency comments were received during the comment period: the CDFW and EBMUD. Additionally, seven comment letter were received from individuals. All comments were summarized and responded to in the October 2, 2023 Zoning Administrator hearing staff report for the project.
County Planning Commission
An appeal of the Zoning Administrator’s decision to approve the project was heard by the County Planning Commission on January 10, 2024. After receiving public testimony, the CPC voted 5-2 to: grant the appeal; decline to adopt the mitigated negative declaration; find that the proposed project, including the lack of sidewalk, curb, and gutter along the project frontage, would have a specific, adverse impact upon the public health and safety; and deny the project.
Appeal of the County Planning Commission’s Decision
On January 19, 2024, Bryan W. Wenter, a representative of the applicant Calibr Ventures, submitted a timely appeal of the County Planning Commission’s decision to deny the approval of the project. A summary of the appeal points and staff responses are provided below. A copy of the appeal letter is attached to this report.
Health and Safety Basis for Denial
The appellant argues that the Planning Commission's denial of the housing development project lacked a lawful basis, specifically regarding their finding that the lack of sidewalk, curb, and gutter along the project frontage would have a negative impact on public health and safety.
Staff agrees that project adequately addressed health and safety concerns, and the lack of sidewalk facilities along the project frontage should not have been a basis for denial of the project. The impacts to health and safety related to the installation of frontage improvements was analyzed in the Initial Study and in the October 2, 2023 Zoning Administrator Staff Report responses to Shikany Comment 7, Shikany Comment 67, Shikany Comment 76 and West Comment 1. As stated in these responses, the County’s Complete Streets policy requires streets to enable reasonably safe travel along and across the right-of-way for each category of users. The IS/MND describes that the proposed project would comply with this requirement through the installation of alternative frontage improvements. Specifically, the project would include bicycle lane facilities along the project frontage.
Furthermore, the project qualifies for a concession under the State Density Bonus Law, which entitles it to alternative frontage improvements, including asphalt-concrete curb and bicycle lane striping on Grayson Road. The State Density Bonus Law allows such concessions unless the County rejects them with adequate justification. Here, the alternative improvements ensure reasonably safe pedestrian and bicycle travel.
As stated in the October 2, 2023 Zoning Administrator Staff Report, the Density Bonus Law provides for regulatory incentives or concessions that result in identifiable and actual cost reductions to provide for affordable housing costs. (Gov. Code § 65915(d)(1)). The Density Bonus Law puts the burden of rejecting any proposed incentives or concessions on the County and requires the County to grant the concession or incentive requested by the applicant unless the County makes a written finding, based upon substantial evidence, of any of the following:
(A) The concession or incentive does not result in identifiable and actual cost reductions, consistent with subdivision (k), to provide for affordable housing costs, as defined in Section 50052.5 of the Health and Safety Code, or for rents for the targeted units to be set as specified in subdivision (c).
(B) The concession or incentive would have a specific, adverse impact, as defined in paragraph (2) of subdivision (d) of Section 65589.5, upon public health and safety or on any real property that is listed in the California Register of Historical Resources and for which there is no feasible method to satisfactorily mitigate or avoid the specific, adverse impact without rendering the development unaffordable to low-income and moderate-income households.
(C) The concession or incentive would be contrary to state or federal law.
Furthermore, the project applicant has committed to installing sidewalk improvements on the opposite side of Grayson Road, addressing a pre-existing gap and benefiting future residents. In light of the above, staff believe the project denial lacked substantial evidence and should be reconsidered.
CPC Appeal Hearing Date
The appellant alleges that the CPC hearing for the project failed to comply with the 60-day timeframe outlined in the Permit Streamlining Act and Subdivision Map Act. However, the hearing was held on the first available date within the timeframe permitted by the relevant statutes, taking into account both the applicant's scheduling constraints due to holidays and other limitations affecting CPC meeting availability. Additionally, both the applicant and the County mutually agreed to hold the CPC hearing on January 10, 2024.
Housing Accountability Act (HAA)
Subdivision (j) of the Housing Accountability Act (HAA) imposes stricter limitations on disapproving or reducing the density of compliant housing projects. To qualify, projects must adhere to "applicable, objective general plan, zoning, and subdivision standards and criteria, including design review standards." Disapproval under these circumstances requires written findings supported by a preponderance of the evidence:
1. Specific, adverse impact on public health or safety: This impact must be significant, quantifiable, direct, and unavoidable, demonstrably linked to objective, identified standards existing when the application was deemed complete.
2. Absence of feasible mitigation: No reasonable solutions exist to satisfactorily mitigate or avoid the adverse impact without project disapproval or density reduction.
As discussed above, the adverse health impacts from the project have been thoroughly reviewed during the preparation of the Initial Study for the project and during consideration of the project’s concession request. Based on the evidence in the record, the project would not have a specific, adverse impact upon health and safety. Thus, staff believe the basis for the CPC’s denial of the project does not meet the requirements for disapproving a project under the HAA.
Constitutional Concerns
The appellant alleges that the Planning Commission’s denial of the project infringes on their constitutional rights. They argue that denying the project due to preexisting deficiencies on Grayson Road would violate the "essential nexus" and "rough proportionality" principles established in Nollan v. California Coastal Commission and Dolan v. City of Tigard.
As described above, the project adequately addressed health and safety concerns along the project frontage on Grayson Road. And the project applicant has committed to installing sidewalk improvements on the opposite side of Grayson Road, addressing a pre-existing gap and benefiting future residents. Considering the current project's scope, the proposed bicycle lane facilities along the project frontage and sidewalks on the opposite side of Grayson Road comply with the requirements for projects of similar size.
Conclusion and Staff Recommendation
The development of the proposed ten- lot subdivision aligns with the surrounding neighborhood, avoids negative environmental impacts, and adheres to applicable regulations. The project complies with the State Density Bonus Law, utilizing its incentives to offer affordable housing without exceeding allowable density limits. While the project requires some development standard waivers, an Initial Study confirmed minimal environmental impacts, mitigated through specific measures. Therefore, constructing housing on these parcels presents a compatible, compliant, and responsible solution. Staff recommends that the Board grant the appeal and approve the project.
CONSEQUENCE OF NEGATIVE ACTION:
Denying the housing project could have significant negative consequences, including missing an opportunity to incrementally address the need for housing on an underutilized site and potential for legal challenges.