HomeMy WebLinkAboutApplication for Planning Commission Appeal TSM17-0001 MenchacaClarissa
From: Menchaca, Clarissa
Sent: Monday, October 8, 2018 3:10 PM
To: Snyder, Ashley; Snellings, Tim; Calarco, Pete; Thist|ethwai1e, Char|es; Colwell, Kenneth;
Michelena, Mark; Breedon, Dan
Cc: McCracken, Shari; Hatcher, CaseyRing, Brian
Subject: RE: Planning Commission Appeal
Attachments: TSK417'0001 Application.pdf
All—
Attached is the application for TSM17-0001.
C i1/44 r wr'
Associate Clerk of the Board
Butte County Administration
25County Center Drive, Suite 2OO^ OroviDc, [49596S
-1: 530`552.33U8| F: 530.538.7120
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From: Snyder, Ashley
Sent: Monday, October 8, 2018 2:42 PM
To: Snellings, Tim <TSnellings@buttecounty.net>; Ca|arco, Pete <PCalarco@buttecounty.net>; Thistlethwaite, Charles
<cthiutUethw/aite@buttecountY.net»| CoUvveN, Kenneth <KColwell@buttecounty.net>
Cc: Menchaca, Clarissa <cmenchaca@buttecounty.net>; McCracken, Shari<SK4cCrecken@boltecounty.netx; Hatcher,
Casey<CHatcher@buttecounty.net>; Ring, Brian <bring@buttecounty.net>
Subject: Planning Commission Appeal
The appeal is being filed as we speak. I will send you the docs once Kate is done taking in the appeal.
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Assistant Clerk of the Board
Butte County Administration
25 County Center Drive, Suite 200, Oroville, CA 95965
T: 530.552.3300 F: 530.538.7120
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Project/ Permit Number: TSM z':..:717-0001
Hearing Body/Review Authority being appealed: Ranning Commission
Date of the hearing/decision subject of the appeal: September 27, 2018
Action being appealed (Describe what is being appealed. If it is a condition of approval,
include the condition with the appeal.)
Approval of Mitigated Negative Declaration - project application of Nels Leen
Reason for the appeal (Describe why the decision is being appealed - Attach additional
sheets as necessary)
See attached.
Appellant(s) Information
Appellant Name:David E. Gallo
Mailing Address:
c/o Sara M. Knowles, Leland, Morrissey & Knowles, LLP, 1660 Humboldt
Road, Suite 6, Chico, CA 95928
Telephone: 530-342-4500
Email:s owles@chicolawyer.corn
Signat r : ,,,,,v/7494
Date: 1
14 72.1"/if
Appellant Name:Toin_ _
Hall
Mailing Address:
c/o Sara M. Knowles, Leland, Morrissey & Knowles, LLP, 1660 Humboldt
Road, Suite 6, Chico, CA 95928
Telephone 530-342-4500
Email: SkIlOWIeS@ChiCOlalryy-r.COM
Signature _ _ -----;------:01
4,..0:100-4411fr
Date: /0 05
Leland, Morrissey & Knowles LLP
Attorneys at Law
Andrew J.Morrissey 1660 Humboldt Road,Suite 6
Sara M.Knowles Chico,California 95928
Phone: (530) 342-4500
Richard A.Leland,Jr.,Retired
Fax: (530) 345-6$36
October 8, 2018
HAND DELIVERED TO:
CLERK OF THE BUTTE COUNTY BOARD OF SUPERVISORS,
25 COUNTY CENTER DRIVE, SUITE 200, OROVILLE, CA
Bill Connelly, Supervisor Maureen Kirk, Supervisor
District 1 District 3
Larry Wahl, Supervisor Steve Lambert, Supervisor
District 2 District 4
Doug Teeter, Supervisor
District 5
RE: Clustered Tentative Subdivision Map Application —TSM17-0001
Dear Gentlepersons:
I represent David Gallo and Tom Hall, who reside in the neighborhood which will
be affected by the application of Nels Leen (TSM17-0001). Attached hereto and
incorporated herein as Exhibit "A" is a list of my clients' neighbors, who hereby join in
my clients' appeal, as set forth below.
The applicant, Mr. Leen, has requested approval of a Clustered Tentative
Subdivision Map, to divide approximately 18.5 acres, with lots as small as .19 acres.
The project site has historically been used solely for agricultural purposes, aside from
an existing single-family residence, on one parcel, with secondary structures. The
project site is zoned Very Low Density Residential ('VLDR") The project site is
bordered by residential development, agricultural uses, Comanche Creek, and a mobile
home park. The surrounding zoning in three directions is VLDR with a minimum of 1
acre, and Agricultural with a minimum of 40 acres on one side. My clients oppose the
applicant for a number of reasons, but it is readily apparent from the foregoing
description that permitting a clustered development with lots as small as .19 acres in an
area zoned VLDR is not consistent with the character of this neighborhood, nor is it
consistent with the General Plan for Butte County. My clients have prepared their
analysis as to the inconsistency of this project with the surrounding neighborhood and
Page 2
outlined how the General Plan goals and policies conflict with this project. That analysis
is attached hereto.
The applicant previously proposed a project with one acre lots, but such
application was denied by the planning commission. The applicant appealed the denial
to the board of supervisors. The reason for the denial by both bodies was that the
project would place homes within the 300-foot agricultural setback. The request for a
modification of the setback to 150 feet (originally approved by the acting agricultural
commissioner without the applicant filing the appropriate request form) was denied.
The Butte County Planning Commission has had public hearings on this current
application twice, on July 26 and September 27. An initial study ("Initial Study") has
been prepared, as well as a mitigated negative declaration ("MND"). My clients, as well
as many other neighbors have expressed their objection to this project at either or both
meetings in the form of testimony and the submission of documents, all of which
respond to the concerns regarding the failure of this project to conform to the General
Plan as well as the inadequacy of the Initial Study and the MND.
A. An EIR Must Be Prepared as There is a Fair Argument That This
Project May Have a Significant Environmental Effect.
The Initial Study and MND for this project is legally insufficient. The County is
required to conduct an Environmental Impact Report ("EIR"). The test for whether an
ElR or negative declaration must be prepared is"whether fair argument can be made
based on substantial evidence that the project may have significant effects on the
environment." (emphasis added.) No Oil, Inc. v. City of Los Angeles(1974) 13 Cal.3d
68, 75; Quail Botanical Gardens Foundation, Inc. v. City of Encinitas(1994) 29
Cal.App.4th 1597, 1602; Friends of"B"St. v. City of Hayward(1980) 106 Cal.App.3d
988, 1002. Public Resources Code §§ 21100, 21151 requires that if a project may
cause a significant effect on the environment, the lead agency must prepare and EIR.
An EIR can only be dispensed with if the lead agency finds no substantial evidence in
the initial study or elsewhere in the record that the project may significantly effect the
environment.
"Significant effect upon the environment" is defined as "a substantially or
potentially substantial adverse change in the environment." Public Resources Code §
21068. A project "may" have a significant effect on the environment if there is a
"reasonable probability"that it will result in a significant impact. (See No Oil, Inc. v. City
of Los Angeles, supra; Sunstrom v. County of Mendocino (1988) 202 Cal.App.3d 296,
3009. If any aspect of the project may result in a significant impact on the environment,
an El H must be prepared even if the overall effect of the project is beneficial. Title 14
California Code of Regulations § 15063(b)(2); see also County Sanitation Dist. No. 2 v.
County of Kern (2005) 127 Cal.App.4th 1544, 1580.
If any,substantial evidence supports a "fair argument"that a project mav_have a
significant environmental effect, the lead agency must prepare an EIR even if it is also
presented with other substantial evidence indicating that the project will have no
significant effect. No Oil, Inc. v. City of Los Angeles, supra; Brentwood Ass'n for No
Page 3
Drilling, Inc. v. City of Los Angeles(1982) 134 Cal.App.3d 491; Friends of"B"St. v. City
of Hayward, supra; Title 14 California Code of Regulations § 15064(f)(1).
To be clear, the lair argument" standard is very different from the standard
normally followed and adopted by public agencies. The fair argument standard
prevents the lead agency from weighing competing evidence to determine who has a
better argument concerning the likelihood or extent of a potential environmental impact.
Friends of"B"St. v. City of Hayward, supra; Architectural Heritage Ass'n v. County of
Monterey(2004) 122 Cal.App.4th 1095, 1109. The lead agency is required to base its
determination on the entire record pursuant to Public Resources Code §§ 21080(c) (d),
20182.2; see also Title 12 California Code of Regulations §§ 15064(f), 15384(a); Sierra
Club v. California Dep't of Forestry and Fire Protection (2007) 150 Cal.App.4th 370;
Architectural Heritage Ass'n v. County of Monterey(2004) 122 Cal.App.4th 1095, 1110;
Silveira v. Las Gallinas Valley Sanitary Dist. (1997) 54 Cal.App.4th 980, 989. The
record includes comments on the proposed negative declaration by other public
agencies, but also of the public during the period for review and comment on a
proposed negative declaration as well as testimony at any hearings held on the
proposed negative declaration. Any erroneous information that is corrected by other
evidence in the record may be disregarded. Leonoff v. Monterey County Bd. of
Supervisors (1990) 222 Cal.App.3d 1337; Newberry Springs Water Ass'n v. County of
San Bernardino(1984) 150 Cal.App.3d 740, 750 (expert's letter submitted by opponents
tending to show water pollution impacts clarified in conversation with agency staff).
1. Substantial Evidence Is Found In Public Testimony.
Comments by the public must be treated as substantial evidence if based on
relevant personal observation on "nontechnical subjects". Pocket Protectors v. City of
Sacramento (2004) 124 Cal.App.4th 903, 928; Ocean View Estates Homeowner's Ass'n
v. Montecito Water Dist. (2004) 116 Cal.App.4th 396, 402. Substantial evidence must
be supported by an adequate factual foundation, such as personal knowledge and
personal observations. Oro Fine Gold Mining Corp. v. County of El Dorado(1990) 225
Cal.App.3d 872; City of Carmel-by-the-Sea v. Board of Supervisors(1986) 183
Cal.App.3d 229, 246 n8; Citizens Ass'n for Sensible Dev. V. County of lnyo(1985) 172
Cal.App.3d 151, 172. Members of the public may provide opinion evidence where
special expertise is not required. Ocean View Estates Homeowners Ass'n v. Montecito
Water Dist., supra (testimony by neighbors that project will have adverse aesthetic
impact involves subjective, nontechnical matter about which neighbors are qualified to
provide opinion based on personal observations; Pocket Protectors v. City of
Sacramento, supra (opinions of area residents relating to project design and aesthetic
impacts constitute substantial evidence when opinion is based on direct observation
and no special expertise is required on that topic).
2. Substantial Evidence Regarding Aesthetics.
The Initial Study and MND fail to make any adequate consideration of the
aesthetics within the Potentially Significant Effects Checklist setting. Ample testimony
and documentation of the substantial evidence that this project may have on the
environment have been submitted and are within the record.
Page 4
My clients and others have testified that the property surrounding the proposed
site consists of residential homes on approximately one-acre parcels. There are no
high rise structures, and no two story or higher homes. All homes are of low level,
nestled among the landscape. There are no densely populated developments. My
clients, and their neighbors, have moved to the area to enjoy the open landscape and
wide expanses without being in a tightly clustered development with neighbors closely
packed in.
A simple walk through neighborhood of the project site reveals scenic areas and
an overall low density of the area. Although staff specifies that the proposed project
equates to 1.13 acre per lot this is an unfair characterization. In fact, 21 of the lots will
be between .19 acres and .75 acres. The analysis that the average size of each lot is
1.13 is not a fair depiction, and draws the wrong conclusion that this will not negatively
affect the aesthetics of this area. A more consistent development would contain lots
larger than .75 of an acre.
There is substantial evidence that there is an environmental impact with respect
to the proposed site. These impacts can be mitigated, and the proponent can avoid the
preparation by moving the project to a separate location.
3. Substantial Evidence Regarding Land Use.
The Initial Study and MND fail to make any adequate or appropriate
consideration and analysis of Land Use. The current land use designation for the
project site is VLDR. The purpose of the VLDR zone is to allow for single family homes
and related uses. The concept is that the standards for this type of a zone are intended
to protect the character of existing neighborhoods and allow for an appropriate transition
from rural to more developed areas. This differs entirely with the Clustered
Development designation.
A Clustered Development has the purpose of facilitating open spaces and to
"provide an incentive to create quality residential developments, particularly where
special conditions exist that prevent the attainment of the maximum permitted density of
a property that could otherwise be attained through conventional subdivision design."
There is no reason why the project site cannot be developed in a conventional
subdivision design, utilizing one acre parcels as is the minimum allowed in VLDR
zoning. The applicant previously had the option of developing this property in one acre
lots but refused to move forward because the required 300 foot agricultural setback
would reduce the number of lots within the project.
The applicant has now reapplied, but proposes the clustered development which
deviates from the VLDR designation in a dramatic way. Additionally, the subject site
has been utilized as agricultural space historically.
It cannot be controverted that changing this neighborhood from one consisting
mainly of one acre lots and over to a clustered development will have a substantial
effect on land use. Any use that deviates from the existing status quo represents a
significant effect. The mere fact of placing a development that IS NOT consistent with
the surrounding neighborhood constitutes a significant effect.
Page 5
4. Sul stantial Evidence Regarding Traffic
Traffic concerns are identified in the Initial Study and the MND. Currently,
access to the project site will be provided by Stanley Avenue. This is a two lane local
road, which is 16 feet wide. This is one foot wider than a single lane one way street.
There are no paved shoulders, nor is there any roadside drainage along the road. The
road is already insufficient for the current uses. The Initial Study identifies that Stanley
Road is less than the 20 foot minimum roadway. The Initial Study states that "If the
applicant is required to physically construct widening improvements . in lieu of paying
a fee, the traffic study recommended that the widening begin at Dayton Road and move
east to the extent possible." This does not address the impact on Stanley Road.
Additionally, the Initial Study designates that the maintenance costs of the new
road would be covered by a Permanent Road Division Area of Benefit—which is clearly
an impact to the surrounding neighbors.
Conclusion
The law is clear, if there is a fair argument of substantial evidence that there may
be a negative environmental impact, and an EIR must be prepared. The record before
you adequately evidences multiple 'fair arguments' of substantial evidence of negative
environmental impacts caused by the proposed project.
In addition, it is readily apparent that this proposed project, as currently planned,
does not conform to the goals and policies of the General Plan. In fact, the project
conflicts with many of the General Plan's goals and policy and therefore the decision of
the Planning Commission cannot be upheld on appeal. The essence of this conflict is
apparent in the following General Plan goal: "Standards for the VLDR zone are
intended to preserve and protect the character of existing neighborhoods and to ensure
that new residential neighborhoods provide an appropriate transition from rural to more
developed areas." This is a rural area, deviation from the current structure of nature of
the neighbor is absolutely contrary to this goal.
Respectfully submitted,
LELAND, MORRISSEY & K OWLES LLP
1t arottA
by
Sara M. Knowles
SMK:eh
Enclosures
cc: Clients
Exhibit A
George Sipple gsicole@hotmail.com.
George&Anita Rafe carafe a(�att.net.
Doug Leiker dglsleikerfgmail.com.
Ted Swanson tswan60298@aol.com.
Cantrell cantrelldotcome.Qmail.com.
Jo Boelens bobbvjoblue4sbcolobal.net.
Tom Hall halldev@sbcolobal.net,
Carol Roniss croniss{a sbcglobal.net,
Lynda Sezon lynda.sezon@gmail.cam,
David Gallo deaallo a..csuchico.edu,
Jim Leonard jim.leonard525(a7cmail.com,
Emily Gallo ecepallo@aol.com,
Riki Berlin rikiberiin mail.com,
kathie.blog kathie:blociAcmail.com,
Kathie Leung kathiebloci ctmail.com,
Adam.Lynch Adam.Lvnch(a7varian.com,
Karen Sage kisage(a�comcast.net,
Lesley Beadle lesleybeadle@vahoo.com,
. Jennifer L Schultz JenniferLschuitz@vahoo.com,
Bretjcrowe21 Breticrowe21@vahoo.com,
heidi gonzales heidi-ellen(a.att.net,
Donna Rose Design DonnarosedesionaQmail.com,
Patrick Newman patrickinchico@gmail.com,
Rick and Wendy Clack randwciack(a?vahoo.com,
Rick and Karen Rogers meberickv@Qmail.com,
Caikoski caikoski(a),sbcoIobal.net,
Karen Sipple ksippie@hotmail.com,
Steve Musselman stevemusselman(ayahoo.com,
Ben Gohlke 2beng3@gmail.com,
Kathleen Kaiser kkaiser{a,chicousd.orq,
•
Max Zachal maxzachaic hotmaii.com,
Lawrence Smith]awrencesmith3000@cmail.com
Jeanne Clark JECIark2@csuchico.edu
Exhibit B
TSM17-0001 IS NOT A CLUSTERED DEVELOPMENT AS DESCRIBED IN THE COUNTY ORDINANCE
1.1 VISUAL
The clustered housing ordinance provides an illustration of a "prototypical 30-acre subdivision". It in no
way resembles the straight cul-de-sac with houses on both sides of the road proposed for TSM17-0001.
Because of the design it does not meet the preferred open space orientation where"...all residential
parcels shall have physical or visual contact with permanent open space to facilitate surveillance,foster
routine maintenance,and improve the quality of life for project residents through the integration of
home sites into a permanent open space setting."
1.2 ACCESS TO OPEN SPACE
One of the goals of the clustered housing ordinance is to,"provide increased open space which may
include active and passive recreation features that reduce demand for public park land_..". The applicant
has indicated his intention to maintain ownership of the 12-acre parcel for agricultural purposes. Thus
the"open space provided" is neither visible to the future residents of the proposed development, nor is
it available for their use.
1.3 OWNERSHIP OF THE OPEN SPACE
The model ordinance assembled by the American Planning Association offers two options for ownership
of the open space, each of which meets the goals of public benefit. it states that,"Common open space
provided by a residential cluster development shall be conveyed as follows: (a)To the[local
government] and accepted by it for park,open space,agricultural,or other specified use or uses,
provided that the conveyance is approved by the [local planning commission] and is in a form approved
by the [local government] law director;or(b)To a nonprofit organization whose principal purpose is the
conservation of open space,to a corporation or trust owned or to be owned by the owners of lots or
dwelling units within the residential cluster development,or to owners of shares within a cooperative
development. If such a corporation or trust is used,ownership shall pass with the conveyances of the
lots or dwelling units."
The county ordinance adds a third option—"deed restrictions recorded with the County Recorder"—a
redundant measure since the land use is already restricted by the 300-foot agricultural setback
requirement. More importantly the deed restriction and use proposed offers no public benefit,either in
the form of public access or preservation of agricultural lands.
1.4 PRESERVATION OF SENSITIVE LANDS
Another purpose of the clustered housing ordinance is,"the preservation of environmentally sensitive
areas(e.g.,wetlands and special-status species habitat), productive agricultural and timber lands,and
important cultural and scenic resources". Permitting clustered housing on the developable five or six
acres of the Leen property does not conserve any resources that are not already conserved by
application of the county's 300 foot agricultural setback rule.
Appeal of the Butte County Planning Commission decision of September 27:TSM17-0001 Page 11
1.5 INNOVATIVE DEVELOPMENT CONCEPTS
One purpose of the County ordinance is to,"provide an incentive to create quality residential
developments..." and to "facilitate innovative development concepts that achieve greater consistency
with the Butte County General Plan". There is nothing innovative about a long cul-de-sac lined on both
sides with homes. The example of a 30-acre clustered housing project contained within the county's
presentation of the clustered housing ordinance looks nothing like the tentative parcel map submitted
with the application for TSM17-0001.
2 STAFF CLAIMS FOR GENERAL PLAN GOALS MET BY TSM17-0001
The county ordinance specifies that one of its purposes is to"...achieve greater consistency with the
Butte County General Plan". This statement implies that the general plan goals are better met with the
clustered development than with same alternative. There are a number of alternatives available under
the VLDR zone that have not been presented. Among those alternatives is the option to allow six homes
to be constructed on the six buildable acres—a configuration consistent with the one-acre minimum lot
size specified for a VLDR zone. Another option is for the applicant to apply for a rezone to a PD and to
build say eight or ten homes on the six acres. Does the clustered housing option, "...achieve greater
consistency with the Butte County General Plan"than either of these alternatives? Has the commission
staff made a case in support of this implicit claim?
The Initial Study and staff recommendations claims that TSM17-0001 meets a number of general plan
goals. This is not accurate. While it is true that the application of the clustered housing ordinance in
this case is consistent with some general plan goals, a greater number of the goals would be met by any
number of alternatives.
2.1 CLUSTERING DOES NOT ACHIEVE GOALS OF THE ORDINANCE
• Require the preservation of environmentally sensitive areas (e.g.,wetlands and special status
species habitat), productive agricultural and timber lands,and important cultural and scenic
resources;
The staff report states that "The project includes approximately 12.09 acres of open space
area. This area is identified as Lot A. A portion of the area includes the 300 foot agricultural
setback. The open space
area will also protect the habitat area adjacent to Comanche Creek"
These benefits are achieved by the 300-foot agricultural setback and would occur with any
alternative to application of the clustered housing ordinance. And until there is a written plan for
managing Lot A, no claims can be made for preservation of the riparian habitat along Comanche
Creek.
• Facilitate innovative development concepts that achieve greater consistency with the Butte
County General Plan;
The staff report states that"The proposed clustered development will result in a reduction in
conflicts between urban and agricultural uses in support of General Plan Goal AG-5 and establish a
300 foot residential setback on property.proposed for residential development from adjacent
agricultural designated!ands in support of General Plan Policy AG-P5.3."
Appeal of the Butte County Planning Commission decision of September 27:TSM17-0001 Page 12
However,these benefits are achieved by the 300-foot agricultural setback and would occur with any
alternative to application of the clustered housing ordinance,
• Provide permanent open space for a variety of natural resource purposes;
In response to the above goal, the staff report states that the open space area will also protect the
habitat area adjacent to Comanche Creek.
These benefits are achieved by the 300-foot agricultural setback and would occur with any alternative to
application of the clustered housing ordinance. And until there is a written plan for managing Lot A,no
claims can be made for preservation of the riparian habitat along Comanche Creek.
• Reduce infrastructure requirements by reducing the length of streets and water and sewer
lines and by potentially reducing street width requirements.
In response to the foregoing goal, the staff report claims the lengths of streets and water lines in
the clustered development will be reduced compared with one-acre minimum size lots
The infrastructure costs are not reduced relative to the hypothetical alternative configurations
presented above. They are only reduced relative to that alternative which is not feasible due to the 300-
foot agricultural setback requirement.
• Clustered development projects may be proposed for parcels that could potentially be
subdivided based on the minimum parcel size of the zone.
Since the 300-foot agricultural setback precludes development of the 12-acres,clustering should only
apply to the six acres"that could be potentially subdivided".
2.2 GENERAL PLAN GOALS ARE NOT ACHIEVED BYTSM17-0001
In many cases the staff claims for general plan goals achieved by the specific project configuration apply
to a number of alternatives that have not been considered by staff or the applicant. There are a number
of goals that we do not believe are achieved,and in fact we believe that the project as proposed, is
inconsistent with a number of those goals. We make that case in the following section. Here we are
examining staff claims in light of the requirement of the clustered housing ordinance that the project
provide"greater consistency with the Butte County General Plan". Does the project achieve the goals
listed by staff to a greater degree than would any alternative?
• Policy LU-P4.1-The integrity and stability of existing residential neighborhoods shall be
promoted and preserved.
The response provided is "The project area consists of single family residential and agricultural
uses within the VLDR(Very
Appeal of the Butte County Planning Commission decision of September 27:TSM17-0001 Page 13
Low Density Residential)and(A)Agriculture zones. The adjacent residential zone supports
densities of 1+acre and may also include limited agricultural uses. The proposed project includes
the creation of lots in an area with existing lot sizes in the VLDR zone ranging from 0.11 to 13.6
acres resulting in a project that is generally compatible with the surrounding residential
neighborhood."
The average lot size on Stanley Avenue is just under one acre.This is not corn patible with the
neighborhood. While there are a few very small lots were created long before the current zoning was
put in place the issues is whether the project with lot sizes as small as 0.19 acres is more consistent with
the character of the neighborhood than any feasible alternative,
• Policy LU-P13.8 -Accommodate future urban and suburban growth that occurs in the Chico
area of Butte County on lands situated in the Urban Side of the Chico Greenline.
in response to the above policy, the staff report states "The project site is located south of Chico,
on the residential side of the Chico Greenline."
The project is proposed for the agricultural side of the Greenline and therefore is in conflict with this
goal.The emphasis must be placed on the fact that the project as proposed conflicts with the Chico
Greenline.
• Other Goals listed by staff:AG-5,W-2,W-5,COS-1,COS-5,COS-7,COS-14,CO5-15,COS-16
While the TSM17-0001 may meet each of these goals it does not do so to a greater degree than any of a
number of feasible alternatives. Thus achieving these goals does not provide"greater consistency with
the Butte County General Plan",than do the alternatives.
3 INCONSISTENCY WITH GENERAL PLAN GOALS AND POLICIES
3.1 DENIAL OF THE APPLICATION
Applying the clustered housing ordinance in the case of TSM17-0001 is entirely inappropriate. State law
and the county's rules require that application of the ordinance does not conflict with general plan
goals. If approval does conflict with these goals,then denial of the project is the appropriate outcome.
California Government Code 66474 is clear on this point.
3.2 Applicable Law
California Government Code 66474 states: "A legislative body of a city or county shall deny approval of
a tentative map,or a parcel map for which a tentative map was not required,if it makes any of the
following findings. , . (b)That the design or improvement of the proposed subdivision is not consistent
with applicable general and specific plans."
Butte County Clustered Housing Application form: On page 7 of the"Clustered Development
Application Guide"states that, "A proposed project must be found to be consistent with all the goals,
Appeal of the Butte County Planning Commission decision of September 27:TSM17-0001 Page 14
policies,and actions that are set forth in the adopted general plan." 1 It does not state that it must meet
some goals or most goals, but rather,all goals. TSM17-0001 does not meet this requirement.
3.3 Inconsistency with General Plan Goals
There are three main areas for which the project,and the clustered housing ordinance as applied in this
case,conflict with the goals of the land use element of the Butte County General Plan. Those areas
include(1)consistency with the character of the neighborhood, (2)adequacy of supporting
infrastructure,and (3)appropriate location of urban growth.
3.3.1 Character of the Neighborhood
3.3.1.1 The Neighborhood
The Stanley Avenue neighborhood is characterized by large lots with small orchards,gardens,and
livestock grazing. Only eight percent of the lots are less than one-half acre and 50 percent are one acre
or more. The homes are single-story, many of which were built in the 1960's or earlier. Many of those
homes were constructed close to the road and will be impacted by increased traffic or the proposed
widening of the road.
The City of Moorpark, CA defines the character of a neighborhood in terms of"...the scale,visual
character,and design of surrounding properties'.The small lots proposed for TSM17-0001 will
probably require two-story homes,with little room for vegetative screens. The line of houses bordered
by wooden fences would have an adverse visual impact on the neighborhood. The scale and design of
the project are not consistent with the character of the neighborhood.
3.3.1.2 General Plan Goals
The following are the general plan goals relating to the character of the neighborhood that are in
conflict with the proposed project,and perhaps in general,with the application of the clustered housing
ordinance in a VLDR zone:
• Standards for the VLDR zone are intended to preserve and protect the character of existing
neighborhoods and to ensure that new residential neighborhoods provide an appropriate
transition from rural to more developed areas.
• Preserve the quality of life and character of existing residential neighborhoods.
• Preserve, protect, and enhance the fundamentally rural character of Butte County.
3.3.1.3 Butte County General Plan:Land Use Element
In addition to the goals listed above, LU-P4.1 states that"The integrity and stability of existing
residential neighborhoods shall be promoted and preserved".
TSM717-0001 is not consistent with the character of the Stanley Avenue neighborhood
1 https://www.buttecounty.net/Portals/10/Docs/PLG/PLG-
15,_Clustered%20Developme nt%20Application%20Guide.pdf
2 http://cicode.us/codes/mooroark/?view=desktop&topic=17-17 44-17 44 040
Appeal of the Butte County Planning Commission decision of September 27:TSM17-0001 Page 15
3.3.2 Adequacy of Infrastructure
3.3.2.1 Stanley Avenue
Stanley Avenue is a straight road varying in width between 16 and 18 feet, beginning at Dayton Road on
the west and terminating at Diamond Avenue on the east.This road is a mere one foot wider than a one
way street(DOT defines a minimum width for a"local" street as 16 feet). It is a residential street with
many houses located close to the road and with a speed limit of 25 mph. The intersection at Dayton
road is not typical, requiring drivers entering Stanley Avenue from Dayton Road to make a sharp turn,at
an angle of more than 90 degrees. This is far from an ideal intersection,carrying with it significant traffic
and safety risks.
During the July 26 Planning Commission meeting the topic of the insufficiency of the road was raised.
County counsel indicated that the intersection would need to be realigned and the road widened to 20
feet between Dayton Road and the planned development. Two-thirds of the cost of the infrastructure
would be borne by the applicant with the remainder assigned to future development of those parcels
not yet fully developed. However,since the County does not have the funds to complete the necessary
upgrades,the road widening and/or the intersection realignment would remain incomplete. While the
applicant would need to do two-thirds of the work prior to beginning project construction,the
remainder would need to await future development. This is fiscally irresponsible and further represents
irresponsible planning.
In addition to the road width and turn angle issues,there is also a major issue with the position of the
sun. Since the road is laid out on an east-west direction,for much of the year the sun is low during
morning peak use making it difficult to see those vehicles coming from the east. In combination with
the narrowness of the road this attribute contributes to an unacceptable safety issue for residents—
drivers as well as cyclists and pedestrians.
It was originally proposed that the applicant do a traffic study that would include all streets potentially
impacted by the development. That included Stanley,Marian,and Diamond Avenues,and Orchard Way.
Instead staff allowed the applicant to do a truncated"study"that used counters to measure current
traffic for one 24-hour period on Stanley Avenue alone. The traffic study was inadequate for estimating
the impact the development will have on the traffic circulation patterns in the area.
TSM17-0001. is being proposed in an area that lacks the appropriate infrastructure. The following
section lists the County land use planning goals with which the project is in conflict:
3.3.2.2 Butte County General Plan:Land Use Goals
LU-P4.3 Generally, higher density housing shall be located along collector and arterial streets and within
easy walking distance of public facilities.
LU-P8.2 The County shall direct projected growth to areas where the appropriate level of transportation
infrastructure is or will be available during the planning period.
LU-P9.2 The County shall balance development densities with the traffic-carrying capacities of existing
and proposed circulation plans.
Appeal of the Butte County Planning Commission decision of September 27:TSM17-0001 Page 16
LU-P9.4 Applicants shall provide evidence of adequate infrastructure capacity to serve the projected
buildout of proposed development projects.
LU-P10.3 Applicants for new development projects that will not be adequately served by existing
infrastructure and facilities and/or through the adopted countywide impact fee program shall prepare a
public facilities financing plan that identifies the needed public improvements and establishes a plan to
pay for and develop the required public improvements.
Stanley Avenue meets none of the standards for an arterial or collector street. Even a minor collector
street should,according to California Department of Transportation, have lane widths ranging from 10
to 11 feet. The width of Stanley Avenue ranges between 16 and 18 feet,and according to the DOT
standards, it qualifies as a" local"street. AADT on a local street varies from 15 to 400,where current
AADT(according to the limited traffic study done by the applicant) is at the upper limit,and with the
development,it is projected to exceed 600.
TSM17-0001 is proposed for an area with inadequate transportation infrastructure with no plan for
financing all needed improvements
3.3.3 Appropriate Location of Urban Growth
3.3.3.1 Stanley Avenue Location Relative to Urban Development and Agricultural Land Uses
The current configuration of the Orchard-Marian-Diamond-Stanley neighborhoods provides a tapering
from the higher density on Marian Avenue to the lower density on the north side of Stanley Avenue,to
what is even lower density development on the south side of Stanley,and finally to the agricultural uses
to the south and east.
3.3.3.2 Land Use Planning Goals
It is a logical progression that provides the separation of agriculture and urban development that
protects the interests of farmers and residents and minimizes potential conflicts. Stanley Avenue is on
the agricultural side of the Greenline, a line that was established in order to protect agriculture through
the separation of urban development and agriculture. That separation is central to a number of land
use planning goals contained within the Butte County General Plan, including:
• LU-P13.1 Maintain the Chico Area Greenline,which shall be located as shown on Figure LU-7.
LU-P13.3 Recognize the Chico Area Greenline as the boundary between the "Urban Side of the Chico
Area Greenline"and the"Agricultural Side of the Chico Area Greenline."
LU-P13.8 Accommodate future urban and suburban growth that occurs in the Chico area of Butte
County on lands situated in the Urban Side of Chico Area Greenline.
LU-P15.1 The County shall prevent scattered development patterns and encourage development in
existing urbanized areas, and in particular areas that have access to public services and infrastructure.
LU-P15.2 New urban development shall be primarily located in or immediately adjoining already •
urbanized areas.*
Appeal of the Butte County Planning Commission decision of September 27:TSM17-0001 Page 17
4 THE CLUSTERED HOUSING ORDINANCE IS INVALID.
Standard: In order for an ordinance to be valid it must be consistent with objectives and policies of the
general plan. It is difficult to envision a case where the clustered housing ordinance can be applied to a
VLDR zone while still meeting the goals of the general plan. A clustered housing development is
inconsistent with the character of a rural neighborhood. There is insufficient infrastructure in any rural
area to support a clustered development of significant scale.These are some of the issues relevant to
the question of whether the clustered housing ordinance itself is consistent with California law.
4.1 Applicable Law
This section presents some legal precedents that are clear on a single point;that is, any ordinance must
not conflict with the policies and goals of the general plan.While there may be situations where
clustered housing is compatible with general plan goals, it is unlikely to be the case in a VLDR zone. And
since applicability to a VLDR zone is a part of the ordinance,then the ordinance itself may be invalid.
4.1.1 Lesher Communications v.City of Walnut Creek(1990)53 Ca1.3d 531
The issue in this case,decided by the California Supreme Court,is whether an initiative measure
limiting municipal growth, which conflicts with a general plan,is invalid. The Court held as follows:
"A general plan must set out a statement of the city's development policies and objectives,and include
specific elements among which are land use and circulation elements.Government Code§65302, subds.
(a) &(b).Once the City has adopted a general plan,all zoning ordinances must be consistent with that
plan, and to be consistent must be"compatible with the objectives, policies,general land uses,and
programs specified in such a plan."Government Code§65860,subd. (a)(ii),
"A zoning ordinance that conflicts with a general plan is invalid at the time it is passed. (Citations The
court does not invalidate the ordinance. It does no more than determine the existence of the conflict. It
is the preemptive effect of the controlling state statute,the Planning and Zoning Law,which invalidates
the ordinance."3
4.1.2 Sierra Club v. Board of Supervisors(1981) 126 Cal.App 3d 698
The court reiterates that Government Code section 65300.5 requires that the elements of the general
plan comprise an integrated internally consistent and compatible statement of policies,find that:
"In addition to the requirement that ordinances conform to the goals and objectives of the general plan
(vertical consistency), "the terms of each element must be internally consistent(i.e., horizontal
consistency). " Id. at 704.
4.1.3 Building Industry.Association of San Diego v.City of Oceanside(1994)27 Cal.App.4th 744
The court states that, "whatever form of zoning a community adopts,its zoning ordinance must be
consistent with the general plan and is invalid if inconsistent. "
3 http://resources.ca.gov/cega/cases/1990/lesher 123190.html
Appeal of the Butte County Planning Commission decision of September 27:TSM17-0001 Page 18
4.2 THE DENSITY BONUS IS NOT SUPPORTED BY THE GENERAL PLAN.
Findings IIIA and 111,0.2 in the Planning Commission Resolution (page 6-10 of the September 27,2018)
staff report are not supported by the facts and evidence.The General Plan does not provide a basis for a
Density Bonus to be granted to TSM17-0001,and no such basis is provided by law. No Density Bonus can
be applied,and TSM17-0001 must be denied.
Findings 11I.A states that"The proposed map is consistent with the Very Low Density Residential 1-acre
minimum zone and with the Very Low Density Residential General Plan land use designation as
supported by General Plan policies regarding clustered developments and Chapter 24,Article III,Division
8, Clustered Development of Butte County Code." (Staff report)
Finding 111.0.2 states"The design or improvement of the proposed subdivision is consistent with the
applicable general and specific plans." (Staff report)
The above statements are inaccurate and factually incorrect. Following are the facts and evidence
regarding the four General Plan actions and policies that refer to Density Bonus:
1. Housing Element Goal H-1: Provide for the County's regional share of new housing for all income
groups and future residents as identified in the Housing Needs Assessment.
Housing Element Action H-A1.2 Development of Sites for Multifamily Housing: The County shall provide
developers with information about suitable sites for small-scale multifamily projects located in the
unincorporated communities that are closest to employment and services...". "The County shall offer
density bonuses,assist interested developers in acquiring surplus government land suitable for
multifamily development..."
TSM17-0001 consists of single-family housing,not multifamily housing.Thus Action H-A1.2 does not
apply.
2. Housing Element Goal H-2: Encourage the provision of affordable housing in the Unincorporated Area.
Housing Element Policy H-P2.3: "Consistent with state law, provide density bonuses to home builders
proposing to include a minimum specified percentage of lower-and moderate-income dwelling units
within residential developments."
•
TSM17-0001 is not providing affordable housing as defined under California stale law.Thus Policy H-P2.3
does not apply.
3. Housing Element Goal H-4:Collaborate with existing service providers to meet special housing needs
of homeless persons, elderly, large families,disabled persons, and farm workers.
Housing Element Action H-4A.8: Extremely Low-Income Households: "The County will encourage the
development of housing for the extremely low-income households through a variety of activities
beyond the density bonus".
TSM17-0001 is not proposing to include housing that meets the definition of affordable housing under
California state law, nor is it providing housing for extremely low income households.Thus Action H-
A4.8 does not apply.
•
4. Agriculture Element Policy AG-P2.6:" Protect Butte County's agricultural lands from conversion to
non-agricultural uses."Agriculture Element Policy AG-P2.6:"The County shall retain and protect
Appeal of the Butte County Planning Commission decision of September 27:TSM17-0001 Pa g e 19
agricultural lands through the use of proactive land use techniques, including but not limited to,the
following:"
1. Clustered development projects,allowing a"clustering" of permitted densities in a compact
configuration in order to protect agricultural land.
2. Density Bonuses, permitting increased density on developable land in exchange for protection of
agricultural land.
This policy cannot be used to approve the TSM17-0001 density bonus because it requires that
agricultural land be protected in exchange for granting the density bonus.This is not the case with
TSM17-0001.The agricultural land to the south of the Leen property is already protected by both a
Williamson Act contract and the approved 300-foot Agricultural Buffer setback.The clustering of this
proposed development achieves no additional protection of agricultural land. In fact,just the opposite
will occur since the requested density bonus actually increases the number of homes in proximity to
agricultural land.
Zoning can be lawfully invoked by Butte County only insofar as it is consistent with and implements
policies set out in the General Plan(which has already been litigated in !_esker Communications, Inc.v
City of Walnut Creek(1990),and Government Code Section 65860(a).TSM17-0001 does not meet any of
the goals,policies,or actions identified in the General Plan as the basis for granting a Density Bonus. It
does not provide low-income,affordable housing, housing for senior citizens/special needs/homeless,
multifamily housing, or protect agricultural land in exchange for a Density Bonus.
4.3 INCONSISTENCY WITH THE MODEL CLUSTERED HOUSING ORDINANCE
The cluster housing ordinance as adopted by Butte County does not meet the intent of the model
cluster housing ordinance designed by the American Planning Association.in diverging from that
document it promotes a development pattern that eliminates many of the benefits associated with .
cluster housing.Among the provisions in the model cluster housing ordinance are the following:
"Except as provided in paragraph (3) below,the maximum numbers of dwelling units proposed for a
residential cluster development shall not exceed the number of dwelling units otherwise permitted for
the residential zoning district in which the parcel is located."
Paragraph 3 refers to the inclusion of affordable housing and is offered as the exclusive purpose of the
density credit.
4.4 CEQA ISSUES
4.4.1 Was the public properly notified of the clustered housing proposal?
The Initial Study prepared for TSM17-0001 under CEQA is deficient in that it fails to consider key aspects
of the project, including whether to grant a density bonus incentive. An initial study must consider all
phases of project planning, implementation,and operation. 14 Ca; code Begs section 15063(a091). Due
to this flaw the Initial Study must be revised and recirculated before the.project can be lawfully
considered by the County and the CEQA document certified.
Appeal of the Butte County Planning Commission decision of September 27:TSM17-0001 Page 110
The granting of the density bonus incentive is a key aspect of the project. It would allow TSM17-0003.a
15%increase in allowable residential density,and has the potential to cause significant impacts to the
environment, including impacts to aesthetics,agriculture, air quality, biological resources, additional
septic systems, noise, population/housing, and traffic.Yet there is no mention of the granting of a
Density Bonus Incentive in the Notice published for the project. Nor is there a single mention or analysis
in any part of the initial study of the potential for the granting of a Density Bonus to cause significant
impacts on the environment.The CEQA document is therefore fatally deficient and must be revised and
recirculated before TSM17-0001 can be lawfully considered by the county.
The Noticing for TSM17-0001 was deficient,and made no mention of a potential density bonus or
density incentive. Corrected noticing must be completed before the project can be lawfully considered
at a public hearing.
The granting of a density bonus on this proposed development is a critical aspect of the project
description,with the potential to cause significant impacts.Yet there was no mention of the granting of
a "density bonus" or"density incentive" in any of the notices mailed to neighbors,or notices published
in the newspaper.The noticing for the project is therefore deficient. In order for the project to be
lawfully reviewed,the project must be re-noticed by both mail and in the newspaper noticing,and a
new hearing must be set.
Page 7 of the September 27,2018 staff report justifies the granting of a Density Bonus because"The
project site is unable to divide to the standard 1-acre size parcel of the Very Low Density Residential
Zone due to the requirement for the 300-foot residential development buffer from the southern
property of APN 039-090-061,which is adjacent to the agriculturally designated land."Staffs reasoning
is capricious and whimsical;the policies of the General Plan governing the granting of Density Bonuses
make no provision for granting a Density Bonus simply because the developer cannot otherwise attain
optimal profitability.
4.4.2 Lack of a management plan for the open space
The applicant indicated that he plans to retain ownership of Lot A;the qualifying open space for the
clustered housing proposal.Yet there is no written plan for management of the property, and if it is to
be kept in agriculture,what the specific use will be and how that will affect the appropriate setback
from the project residences. The mitigated negative declaration and the supporting staff report offer no
documentation of options for managing the open space. This is a crucial element in the planning of this
development. Without a written management plan,including the means to finance that plan,the
proposed development does not meet CEQA requirements.
4.5 CAN LOT A BE FARMED OVER THE AREA USED FOR THE COMMUNITY LEACH FIELD?
The applicant indicated that he will retain ownership and farm the 12-acre lot A. However,a large part
of that lot is designated as the community leach field. Is it possible to irrigate the area above the leach
field without causing undue percolation of wastes into the area groundwater, or at the western margin,
into the trench used by the mobile home park for runoff from its parking lot? Has it be determined from
the test pits that the soil can handle the volume of wastes from the homes plus irrigation water from the
farming operation? If that portion of Lot A is not farmed then it can't be claimed as preservation of
agricultural land.
Appeal of the Butte County Planning Commission decision of September 27;TSM17-0001 Page 111
4.6 PART OF THE LEACH FIELD IS IN A FEMA FLOOD ZONE
A portion of the proposed wastewater treatment facility is located in the 200-year(AO)flood plain (see
online FEMA map at the FEMA portal https://msc.fema.gov/portal/search?Address
Query=butte%20county%ca#searchresultsanchor,which is more accurate than Butte County General
Plan Figure HS-1).Anyone can go to this website and put in Stanley Avenue, Chico CA 95928-6944 in the
address search box,which will show this specific area has a 1%chance of flooding, with a depth of 1
foot.
This area and the proposed wastewater treatment facility therefore appear to be subject to SB 162
(Wolk)and the Central Valley Flood Protection Plan. Government Code Section 65865.5,65962,and
66474.5 require certain findings to be made prior to the granting approval or issuance of any permits
within an identified 200-year floodplain.Specifically,the County must find that a flood management
facility protects the property to an urban level according to DWR standards or that progress has been
made toward constructing a flood protection system that will provide an urban level of flood protection.
The County must also require conditions of approval that will protect the property to an urban level of
flood protection.
According to Section 11.01-2("Community Sewer Systems")of the Butte County Improvement
Standards,when a subdivision proposes to develop such a community sewer system, it must a. Provide
for the establishment of a public entity empowered and adequate to maintain and operate the system;
and b.Obtain discharge requirements from the Regional Water Quality Control Board (RWQB).The
current proposal provides no evidence that this has been accomplished. (Map attached)
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Appeal of the Butte County Planning Commission decision of September 27:TSM17-0001 Page 112
4.7 LAFCO SHOULD BE CONSULTED A.5 TO WHETHER TSM17-0001 IS AN APPROPRIATE DEVELOPMENT.
LAFCO has not.been consulted regarding this project,although"LAFCO will encourage proposals that
result in urban development to include annexation to a city wherever reasonably possible,and
discourage proposals for urban development without annexation to a city. LAFCO will also encourage
cities to annex lands that have been developed to urban levels as defined below,particularly areas that
receive city services." "The term "Urban Development"shall mean development of a character and
intensity that is normally found in urban and suburban areas and demands municipal services." For
residential development the term means any intensity in excess of one residential unit per acre.
4.8 Is TSM17-0001 CONSISTENT WITH THE GOALS OF THE CITY OF CHICO GENERAL PLAN?
While the proposed development is not within the City of Chico's current sphere of influence, it is
worthwhile to examine how it fits with the development patterns envisioned by the city. It is clearly
inconsistent and constitutes leapfrog development and spot zoning.
• Promote orderly and balanced growth by working with the County and the LAFCO to establish
long-term growth boundaries for the Planning Area consistent with Plan objectives.
• Promote infill development.
• Ensure that new development is at an intensity to ensure a long-term compact urban form.
• Maintain long-term boundaries between urban and agricultural uses in the west,and urban uses
and the hillside in the east,and limit expansion north and south to maintain compact urban
form.
• Ensure consistency between the General Plan and implementing ordinances and regulations.
5 THE PLANNING COMMISSION FAILED TO TREAT THE HEARING AS A QUASI-JUDICIAL PROCESS AND DID
NOT EQUITABLY WEIGH THE EVIDENCE PRESENTED
At the beginning of the planning commission meeting Felix Wannenmacher. Chief County Counsel,
reminded the commissioners that the hearing regarding TSM17-0001 is a quasi-judicial,not a legislative
process. That is an important distinction that appeared to have had no bearing on the direction or
substance of the discussion among the commissioners. With the exception of a single commissioner,
the discussion was focused exclusively on the information provided by the commission staff and the
representative of the applicant and not an examination as to whether the Initial Study was sufficient or
whether the project was consistent with the General Plan.
"Determining whether a particular Council decision involves legislative or quasi-judicial action
sometimes requires analysis of court decisions."As a rule "site-specific"land use decisions(including
most rezoning decisions) are generally quasi-judicial.On the other hand,courts generally consider the
rezoning of large areas consisting of many properties legislative. Thus the establishment of a VLDR zone
over a large number of parcels is a legislative decision,but application of an ordinance (clustered
housing,e.g.)that allows a particular use on a single parcel is quasi-judicial. "Other quasi-judicial
matters include historic preservation district permits,conditional and special use permits,and
variances." (MMA's Handbook for Municipal Officers prepared by Joseph J.Wathen,MMA Staff Attorney
-June, 1991)
Appeal of the Butte County Planning Commission decision of September 27: TSM17-0001 Page 1 13
The key point is that as a quasi-judicial process the planning commission was obligated to weigh all of
the evidence and grant approval of the project only if the applicant met the burden of proof. In order
for the commission to do that it would have needed to weigh all of the evidence presented, not just that
provided by staff and the applicant's representative. It is clear from the record that the commission did
not meet that obligation,and therefore,it could not verify that the applicant met the burden of proof.
•
Appeal of the Butte County Planning Commission decision of September 27:TSM17-0001 Page I 14