To: Board of Supervisors
From: John Kopchik, Director, Conservation and Development
Report Title: Walnut Blvd Subdivision Project Appeal (County File #CDSD21-09581)
☒Recommendation of the County Administrator ☐ Recommendation of Board Committee
RECOMMENDATIONS:
1. OPEN the public hearing on an appeal of the County Planning Commission’s decision to approve a 10-lot major subdivision located at 3180 Walnut Boulevard in the unincorporated Walnut Creek area of the County (County File #CDSD21-09581); RECEIVE testimony, and CLOSE the public hearing.
2. DENY the appeal of William Goodwin.
3. FIND that the mitigated negative declaration prepared for the project adequately analyzes the project’s environmental impacts, that there is no substantial evidence that project will have a significant effect on the environment, and that the mitigated negative declaration reflects the County’s independent judgement and analysis.
4. ADOPT the June 21, 2023 mitigated negative declaration prepared for the project
5. ADOPT the mitigation monitoring and reporting program prepared for the project.
6. APPROVE a ten percent density bonus (one additional unit), the requested concession to utilize gross acreage to determine the base density for the project site, and the requested waivers or reductions in development standards related to minimum lot size, lot width, and setbacks.
7. APPROVE the vesting tentative map for the project, including the requested exceptions from offsite collect and convey diversion requirements, detention basin requirements, and underground utility requirements.
8. APPROVE a tree permit to allow removal of 43 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.
BACKGROUND:
This hearing is an appeal of the County Planning Commission’s January 10, 2024 decision to approve a vesting tentative map for the Walnut Blvd Subdivision Project, County File #CDSD21-09581, subdividing a 2.88-acre parcel into 10 lots. 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. The project also includes a tree permit to allow the removal of 43 code protected trees and work within the dripline of 17 code-protected trees. The project includes exceptions to County subdivision (Title 9) requirements including undergrounding of utilities, collect and convey requirements, and minimum stormwater detention basin size.
The project was initially heard by the Zoning Administrator on October 2, 2023 and continued to October 16, 2023. At the October 16, 2023 hearing the ZA approved the subdivision with modifications to the conditions of approval. William Goodwin and Kim Asher appealed the ZA’s decision on October 26, 2023.
The appeal was heard by the County Planning Commission on January 10, 2024. After receiving public testimony, the CPC voted unanimously (7-0) to uphold the Zoning Administrator’s approval and denied the appeal. William Goodwin appealed the CPC’s decision on January 19, 2024.
Project Description
The applicant is requesting approval of a vesting tentative map to subdivide a 2.88-acre parcel into 10 lots with proposed lot sizes ranging from 9,292 to 17,659 square-feet. Development will include the construction of 10 new, two-story, single-family residences as well as complete site improvements including the construction of a new private road, grading, retaining walls, stormdrain facilities, new landscaping, and frontage improvements including sidewalk, curb and gutter along the project frontage. The project also includes a tree permit to allow the removal of 43 code-protected trees and work within the dripline of 17 additional trees. Demolition of the existing residence and detached garage and approximately 17,000 cubic yards of grading are also part of the project scope of work.
The applicant has requested and qualifies for a density bonus due to its commitment to making one of the residences available for sale to a moderate-income family. The applicant has also requested a concession and reductions or waivers of development standards, as described in more detail below, as authorized under State Density Bonus Law. The applicant has also requested exceptions to County subdivision (Title 9) requirements including undergrounding of utilities, collect and convey requirements and minimum stormwater detention basin size.
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 (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 4) for affordable housing and to make it available for sale to a moderate-income household.
• Project site: 2.88 gross acreage
2.4 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: (2.4 net acres) * (2.9 units per acre) = 6.96 units
• Percent of units made available for sale to moderate-income households: (1 unit ) / (6.96 units) = 14.36%, rounded up to 15%
By making 15% of base units available for sale to moderate-income households, the project qualifies for a 10% density bonus and is entitled to one concession or incentive. As a concession, the applicant requests that the County utilize gross acreage, rather than net acreage, in calculating the project’s base density.
• Revised dase density (with concession): (2.88 acres) * (2.9 units per acre) = 8.35 units, fractional unit rounded up to 9 base units
• Density Bonus Calculation: (9 units) * (0.10) = 0.9 units, fractional unit rounded to 1 unit; 9 units + 1 unit = 10 units
The applicant has also requested waivers or reductions from R-20 development standards that will allow for reduced lot size, average lot width and yard setbacks. These waivers and reductions of development standards are necessary to allow for development of the project at the permitted density and with the requested concession.
Site Description
The project site is located in unincorporated Walnut Creek area, surrounded by the City of Walnut Creek, with the City of Lafayette to the west, the cities of Pleasant Hill and Concord to the north, unincorporated County to the south and Mount Diablo State Park to the east. The project site is located at 3180 Walnut Boulevard at the corner of public road Walnut Boulevard and private road View Lane.
The approximately 2.88-acre project site corresponds to Accessor’s Parcel Number (APN) 180-240-002. The project site is located within a residential area and is surrounded by single-family homes. Walnut Heights Elementary School is located approximately 800 feet to the northeast. Interstate 680 (I-680) is located approximately 0.89 miles southwest of the site. The project site contains an existing vacant single-family residence with a detached garage, which would be demolished prior to project construction. The site was historically cultivated with an orchard since at least 1946. Orchard remnants, including mature and aging pecan, almond, and walnut trees, are distributed across the site. The site also contains native oaks, with the highest density of native oaks found along the south property line. A drainage swale parallels the entire north property line, terminating in a drainage inlet at the northwest corner of the site. The project site slopes down generally from northeast to southwest, ranging in elevation from approximately 232 feet above sea level (ASL) to approximately 192 feet ASL.
General Plan Land Use Designation
The General Plan land use designation for the project site is Single-Family Residential-low Density (SL). The primary land uses permitted in this designation include detached single-family homes and accessory buildings and structures. As the project will result in single-family residential development, the project is consistent with the allowed uses of this general plan designation. The SL designation allows 1.0 - 2.9 units per net acre. This would ordinarily result in a maximum of 7 units on the site. However, as described above, the applicant has requested a density bonus concession to utilize gross acreage in the base density calculation. Combined with the density bonus required under the State Density Bonus Law, this results in a maximum development capacity of 10 units on the site. Therefore, a 10-lot subdivision is consistent with the allowed density for the SL General Plan designation.
Zoning
The Zoning District for the project site is Single-Family Residential (R-20). The project, as proposed, would not be consistent with the R-20 development standards with respect to minimum lot size, lot width, 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 reduction in minimum lot size for Lots 1-10;
• a reduction in the minimum average lot width for Lots 1-5 and 7-10;
• a reduction in minimum front yard and side yard setbacks for development of the residences on Lots 1-10; and
• 0-ft accessory structure setbacks for the development of retaining walls on Lots 1-10.
The proposed lot sizes, average lot width, depth, and setbacks, are shown in the following table. The applicant is seeking these reductions and waivers because application of the R-20 development standards would physically preclude the development of the project at the permitted density and with the requested concession. With the requested waivers and reductions, the project would be considered consistent with the R-20 single-family residential zoning district.
|
Lot # |
Lot Area (20,000 square feet minimum) |
Footprint Area in square feet |
Depth (120 feet minimum) |
Average Width (120 feet minimum) |
Front yard Setback (25 feet minimum) |
Side Yard Setback (15 feet, 35 feet aggregate, minimum) |
Retaining Walls (structure setbacks in feet) |
|
Lot 1 |
9,645 |
2,483 |
145.3 |
66.4 |
20 |
15 feet aggregate, (no yard less than 5 feet) |
0 |
|
Lot 2 |
10,889 |
2,533 |
168.6 |
64.6 |
20 |
15 feet aggregate, (no yard less than 5 feet) |
0 |
|
Lot 3 |
11,731 |
2,913 |
174.1 |
67.4 |
20 |
15 feet aggregate, (no yard less than 5 feet) |
0 |
|
Lot 4* |
10,764 |
2,533 |
150.6 |
71.5 |
1 foot to shunt turn around; 20 feet from street |
15 feet aggregate, (no yard less than 5 feet) |
0 |
|
Lot 5 |
13,270 |
2,533 |
132 |
100.5 |
20 feet to face of garage; 10 feet to living area |
15 feet aggregate, (no yard less than 5 feet) |
0 |
|
Lot 6 |
17,659 |
2,483 |
127.2 |
138.8 |
20 |
15 feet aggregate, (no yard less than 5 feet) |
0 |
|
Lot 7 |
9,292 |
2,533 |
130.9 |
71 |
20 |
15 feet aggregate, (no yard less than 5 feet) |
0 |
|
Lot 8 |
9,555 |
2,913 |
134.5 |
71 |
20 |
15 feet aggregate, (no yard less than 5 feet) |
0 |
|
Lot 9 |
9,819 |
2,442 |
138.2 |
71 |
20 |
15 feet aggregate, (no yard less than 5 feet) |
0 |
|
Lot 10 |
15,797 |
2,533 |
141.3 |
111.8 |
20 |
15 feet aggregate, (no yard less than 5 feet) |
0 |
|
Notes: * Designated as affordable unit |
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. The project Arborist Report, prepared by certified arborist Jennifer Tso (#WE-10270A) and dated January 10, 2023, provides an inventory and evaluation of all trees on and adjoining the project site that may be impacted by the proposed project. A total of 73 trees were surveyed, numbered, tagged, identified, measured, and evaluated. A total of 43 code-protected trees would be removed, and work would occur within the dripline of 17 additional code-protected trees. There were 16 tree species inventoried, but only 3 species are listed in the County Tree Ordinance under the indigenous species list: 26 Valley Oaks, 13 California Black Walnut trees, and 2 Coast Redwoods. The other tree species include: 7 Almond trees, 5 Holly Oaks, 4 English Walnut trees, 2 Monterey Pines, 4 Privets, 1 Elm, 1 English Hawthorn, 1 Olive tree, 1 Pepper tree, and 7 various fruit trees.
Tree removal and work under the dripline is due to development of the proposed project. The arborist report indicates these trees cannot be avoided and are not expected to survive, thus, requiring removal. Four trees to be removed are due to poor health condition (a California Black Walnut, 2 Almond trees, and a Plum tree). In addition, remaining trees that are proposed for preservation on and adjacent to the project site would be preserved through the implementation of the tree mitigation measures described in the arborist report. These mitigation measures will be required to be in place throughout the entire construction period.
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 projects 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 22, 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 4 of the property. The unit on Lot 4 will be an approximately 2,533-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
The site is accessed by Walnut Boulevard, a County maintained road. The segment of Walnut Boulevard that fronts the property is approximately 32-feet of pavement within a 50-foot right of way. The ultimate road is intended as 44 feet of pavement within a 64-foot right-of-way. The applicant will be required to dedicate an additional 7 feet of right of way and install curb, a 5-foot sidewalk pavement widening and appurtenant frontage improvements along the project frontage of Walnut Boulevard. The face of curb shall be located 10 feet from the widened right of way line.
There is an existing power pole located at the southwest corner of the property that will conflict with the required frontage improvements. Section 96-10.002 of the County Ordinance Code requires subdividers to underground utility distribution facilities along the project frontage. The applicant proposes to maintain the pole in its existing place and taper the width of the road as it approaches the pole. The existing utility poles supporting the overhead lines along the frontage of the project contain electric service from PG&E and various utility services including AT&T, Comcast, and Wave Cable. The existing poles have services branching to an unknown number of homes on Walnut Boulevard and View Lane. In addition, the overhead lines connect to the poles at an unusual angle. Undergrounding of the lines would result in new guy wires extending into the front yard of neighboring properties which would significantly impact neighboring properties. Leaving the existing overhead utility lines in place will not be detrimental to the public welfare. All services will remain in place as is with minimal disruptions to neighboring properties. The guy wire supports will not encroach into neighboring yards as is the case with undergrounding. Given the existing site conditions, staff recommends approval to granting an exception to allow the existing facilities to remain overhead, but the existing pole within the ultimate travel way will need to be relocated behind the sidewalk. In the event the western adjacent property redevelops, or the sidewalk is extended as a safe route to the nearby school, the curb alignment and travel way should not be encumbered by a utility pole.
The on-site private road is proposed to be 28 feet wide with a 5-foot sidewalk along one side for a total width of 33 feet. A minimum 35-foot private access and utility easement should be required to include the back of curb and buffer to back of walk for maintenance access. Additional easement width may be necessary to accommodate utility vaults and appurtenances.
Drainage
Division 914 of the County Ordinance Code requires that all storm water entering and/or originating on this property to be collected and conveyed, without diversion and within an adequate storm drainage system, to an adequate natural watercourse having a definable bed and banks or to an existing adequate public storm drainage system which conveys the storm water to an adequate natural watercourse.
The applicant is proposing joint use of the bioretention basin for detention purposes. The applicant has provided a preliminary hydrologic analysis of the detention basin, which determined that the basin will mitigate peak flows from the site to below pre-project levels. Joint use of the basin is allowed, provided the stormwater treatment function of the basin is not used in the storage volume modeling for the detention function.
Section 914-2.004 of the County Ordinance Code provides the requirements for offsite collection and conveyance of storm water entering and/or originating on this property. The preliminary Stormwater Control Plan (SWCP) proposes to divert runoff that naturally flows to an inlet at the north end of the property to the basin that goes into the south end inlet. Due to the basin’s mitigation of peak flow levels, and the final SWCP being subject to a more thorough review that verifies the existing storm drainage system is adequate, staff recommends approval to granting an exception to allow diverting this stormwater runoff.
Section 914-12.002 of the County Ordinance Code sets the minimum storage volume for detention basins at 15 acre-feet, allowing for use of smaller systems with the approval of Public Works, and establishment of a public maintenance entity. Due to the size of the site (2.88 acres) and the steep existing ground topography, a basin of fifteen acre-feet is impossible to achieve without exporting an excessive volume of soil. In addition, the minimal drainage area of the site produces low stormwater runoff flow rates which do not necessitate the large configuration of the basin described in the code. By directing stormwater runoff into the basin, the proposed development will reduce the overall flow rates leaving the site and avoid impacts downstream. The basin will be privately maintained in accordance with standard maintenance procedures for bioretention and detention basins. Due to the small size of the project site and the lack of public entity to maintain such a facility, staff recommends approval to granting an exception to allow the responsible individual(s) to maintain it along with their obligation to maintain the stormwater management aspects of the basin as discussed below.
A preliminary Hydrologic and Hydraulic Analysis was submitted in support of the runoff mitigation claims of the basin design but will be subject to a more thorough review as the project progresses through final design.
Stormwater Management and Discharge Control
A Stormwater Control Plan (SWCP) is required for applications that will create and/or redevelop impervious surface area exceeding 5,000 square-feet in compliance with the County’s Stormwater Management and Discharge Control Ordinance and the County’s Municipal Separate Storm Sewer System (MS4) National Pollutant Discharge Elimination System (NPDES) Permit. This project proposes to create and/or redevelop approximately 43,558 square-feet of impervious surface with the proposed driveways and single- family residential development, which is above the threshold for requiring submittal of a SWCP. A SWCP Exhibit and Report were submitted for Public Works review and are considered adequate for this phase of the project.
California Environmental Quality Act (CEQA)
In accordance with the provisions of CEQA, staff prepared an Initial Study (IS) assessment of potentially significant adverse environmental impacts that could result from the proposed 10-lot subdivision. The Initial Study determined that although the proposed project could have some environmental impacts, these impacts would be reduced to a less than significant level through mitigation. The initial study was posted and circulated for public review and comment on June 21, 2023, with the public comment period ending on July 21, 2023. During the comment period fourteen letters were received addressing the adequacy of the initial study. A copy of the Initial Study, comment letters, and staff response to the comment letters are attached to this report.
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 unanimously (7-0) to uphold the Zoning Administrator’s approval and denied the appeal.
Appeal
On January 19, 2024, William Goodwin filed an appeal of the County Planning Commission’s decision to approve the subdivision. A summary of the appeal points and staff responses are provided below. A copy of the appeal letter is attached to this report.
Appeal Point #1: The subject property does not currently drain into the existing offsite stormwater system. The existing storm drainage facility has not been proven to be adequate to take on the runoff that will be created by this project.
Staff Response #1: The project Storm Water Control Plan has been reviewed by the Public Works Department. According to PWD the project drainage basin will discharge into the north side of Walnut Boulevard, and the storm drain inlet on the south side of the street extends across to the project site and beyond, conveying storm water runoff from 7.7 acres between Walnut Boulevard and Nob Hill Drive, in addition to half of the subdivision site. The intent of the design is to catch and detain the runoff from the subdivision such that the resultant total runoff leaving the site is reduced to a level that the downstream drainage facilities can accommodate the runoff to the prescribed “design storm” flow rate; in this case, the “ten year” event. The subdivision is required to comply with the drainage requirements of Division 914 - Drainage, of the County Code and the final map cannot be recorded until compliance with this section of the code has been demonstrated.
Appeal Point #2: The proposed bioretention basin is insufficient and will cause flooding of the neighboring properties.
Staff Response #2: Public Works has reviewed the project preliminary Storm Water Control Plan (SWCP) and Hydrologic and Hydraulic Analysis and found its conclusions sufficient. The project stormwater control plan can comply with the design standards set forth in Division 914-Drainage of Title 9 of the County Code. A final SWCP and a Stormwater Control Operation and Maintenance Plan will be reviewed and approved by Public Works prior to issuance of building permits and will be reviewed for compliance with the County’s National Pollutant Discharge Elimination System (NPDES) Permit and the County’s Stormwater Management and Discharge Control Ordinance.
Appeal Point #3: The area along the north and west property lines of the project site is an “ancient creek bed” and not a “drainage swale” as described in the mitigated negative declaration.
Staff Response #3: This watercourse is un-delineated on the USGS quad map and is a tributary of Indian Creek. Indian Creek itself lies on the other side of the ridge above the property in the Shell Ridge Open Space between Walnut Heights and Indian Valley Elementary school. It is the water source for the lake in the Lakewood neighborhood. Any ancient creek downstream of the lake has long been relocated, channelized, and ultimately redirected as a large, open, roadside ditch along the east side of Walnut Boulevard north of LaTour Lane.
Conclusion and Staff Recommendation
Staff has determined that the proposed 10-lot subdivision is consistent with the provisions of State law including CEQA and State housing and density bonus law and that the project is consistent with the County General Plan and conforms to applicable County zoning and subdivision regulations. Staff recommends that the Board deny the appeal and approve the project.
CONSEQUENCE OF NEGATIVE ACTION:
If the Board were to deny the project, the subdivision would not be developed and the 10 new housing units, including one affordable unit would not be added to the County housing inventory.