HomeMy WebLinkAboutEmail from David Gallo - TSM17-0001 Menchaca, Clarissa
From: David Gallo <degallo457@gmail.com>
Sent: Tuesday, September 18, 2018 12:39 PM
To: Larry Grundmann;Jacquelyn Chase; rockdonati@aol.com; pjohn7179@aol.com;
Michelena, Mark; Snellings,Tim; Calarco, Pete;Thistlethwaite, Charles; Clerk of the
Board; Connelly, Bill;Wahl, Larry; Kirk, Maureen; BOS District 4;Teeter, Doug; Mendoza,
Louie;Alpert, Bruce; Debra Lucero; Fossum,Tom; Boyd, Chris;Tami Ritter
Subject: TSM 17-0001
Attachments: Law and the clustered housing ordinance.docx
The attached letter presents what I believe are critical legal issues regarding TSMI7-0001. It presents my view
that approval of the Leen project as a clustered development is inconsistent with both state code and county
rules regarding this type of development.
Dr. David Gallo
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THE VALIDITY OF THE
CLUSTERED HOUSING
ORDINANCE AND IT'S
APPLICABILITY TO TSM 17-0001
1
1 Is THE CLUSTERED HOUSING ORDINANCE VALID?
1.1 WHEN IS AN ORDINANCE INVALID?
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. Is a clustered housing development consistent
with the character of a rural neighborhood? Is there sufficient 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.
1.2 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.
1.2.1 Lesher Communications v.City of Walnut Creek
"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. (§ 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." (§ 65860,subd. (a)(ii).) "
"A zoning ordinance that conflicts with a general plan is invalid at the time it is passed. (deBottari v. City
Council,supra, 171 Cal.App.3d 1204, 1212, 217 Cal.Rptr. 790;Sierra Club v. Board of Supervisors,supra,
126 Ca1.App.3d 698, 704, 179 Cal.Rptr.261.)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."1
1.2.2 Sierra Club v. Board of Supervisors
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). Government Code Section 65300.5;Sierra Club v. Board of Supervisors, 126 Cal.App.3d 698
(1981)."2
1.2.3 Building Industry.Association of San Diego v. City of Oceanside
"Whatever form of zoning a community adopts, its zoning ordinance must be consistent with the
general plan and is invalid if inconsistent. Government Code Section 65860; Building Indus.Ass'n of San
Diego v. City of Oceanside, 27 Cal.App.4th 744(1994)."3
1 http://resources.ca.gov/cepa/cases/1990/lesher_123190.html
2 http://www.inedc.com/1-9728.html
3 http://www.inedc.com/1-9728.html
TSM17-0001 Before the Butte County Planning Commission September 27, 2018
2
2 TSM 17-0001 ASA CLUSTERED HOUSING PROJECT
2.1 DENIAL OF THE APPLICATION
Even if it is determined that the clustered housing ordinance is valid, applying it to the case of TSM17-
0001 is entirely inappropriate. It is reasonable to expect that the application of the ordinance does not
cause a conflict with general plan goals. If approval does conflict with these goals,then denial of the
project is the appropriate outcome. California Code 66474 is clear on this point.
2.2 APPLICABLE LAW: CALIFORNIA CODE 66474
"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."4
2.3 BUTTE COUNTY CLUSTERED HOUSING APPLICATION FORM
On page 7 of the"Clustered Development Application Guide" under the heading"what is considered in
accepting or denying a proposed project", item A.within the subheading, "general plan consistency",
states that, "A proposed project must be found to be consistent with all the goals, policies, and actions
that are set forth in the adopted general plan."' It does not state that it must meet some goals or most
goals, but rather,all goals. Clearly TSM17-0001 does not meet this requirement.
2.4 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.
2.4.1 Character of the Neighborhood
2.4.1.1 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".6 The small lots proposed for TSM17-0001 will
4 https://law.justia.com/codes/california/2009/gov/66473-66474.10.html
5 https://www.buttecounty.net/Portals/10/Docs/PLG/PLG-
15_C l u stered%20 Deve l opm a nt%20App l i cati o n%20G a id e.pdf
6 http://gcode.us/codes/moorpark/?view=desktop&topic=17-17 44-17 44 040
TSM17-0001 Before the Butte County Planning Commission September 27, 2018
3
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.
2.4.1.2 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.
2.4.1.3 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".
2.4.2 TSM17-0001 is not consistent with the character of the Stanley Avenue neighborhood
2.4.3 Adequacy of Infrastructure
2.4.3.1 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. 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.
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.
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 the
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.
TSM17-0001 Before the Butte County Planning Commission September 27, 2018
4
it is clear that the project,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:
2.4.3.2 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.
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.
2.4.4 TSM17-0001 is proposed for an area with inadequate transportation infrastructure with no
plan for financing needed improvements
2.4.5 Appropriate Location of Urban Growth
2.4.5.1 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.
2.4.5.2 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.
TSM17-0001 Before the Butte County Planning Commission September 27, 2018
5
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.*
2.4.6 TSM17-0001 is proposed for a location inconsistent with the land use planning goals
presented in the Butte County General Plan
TSM17-0001 Before the Butte County Planning Commission September 27, 2018