HomeMy WebLinkAboutEmail from Douglas Leiker - TSM17-0001 Menchaca, Clarissa
From: Douglas Leiker <dglsleiker@gmail.com>
Sent: Tuesday, September 25, 2018 6:52 PM
To: Icgrundmann@gmail.com;jacquechase@gmail.com; rockdonati@aol.com; Pjohn7179
@aol.com; Michelena, Mark; Snellings, Tim; Calarco, Pete;Thistlethwaite, Charles;
Fossum, Tom; Clerk of the Board;Connelly, Bill;Wahl, Larry; Kirk, Maureen; BOS District
4;Teeter, Doug; Debra@debralucero.us; Info@ritterforsupervisor.com; Mendoza, Louie;
Alpert, Bruce; lorettatorres92@gmail.com
Subject: Tentative Subdivision Map TSM17-0001
To whom it may concern,
Here are a few items of concern regarding Tentative Subdivision Map TSM17-0001 (Nels Leen):
1. Under Government Code Section 66474, the Proposed Cluster Subdivision of the property must be
denied because it is inconsistent with the General Plan.
The proposed cluster subdivision is located in the VLDR General Plan designation, which has an
allowable density of up to (but not exceeding) one dwelling per unit/acre.
Nowhere does the Land Use Element or any other element of the Butte County General Plan provide
for any form of development, including cluster development, to exceed the density limitations of the
applicable General Plan land use designation.
Government Code Section 66474 of the Subdivision Map Act requires a city or county to deny a
tentative map or parcel map if the proposed map is not consistent with the applicable General Plan.
Therefore, this subdivision must be denied.
Additional Background
Government Code Section 66474 of the Subdivision Map Act requires a city or county to deny a
tentative map, or a parcel map for which a tentative map was not required, if the proposed map is not
consistent with the applicable General Plan. Clustered development subdivisions, such as the one
proposed, are subject to all of the standards in the California Subdivision Map Act.
Butte County General Plan Table LU-2 Density and Intensity of Land Use Development identifies the
allowable range of development density and intensity for each land use designation. Table LU-2
mandates that the Very Low Density Residential (VLDR) land use designation has an allowable range
of development density of up to one unit per acre. Page 4-20 of the Land Use Element reiterates this
provision.
General Plan policy LU-2.5 states "The County shall promote cluster development in rural areas".
Section 24-88 of the Butte County Zoning Ordinance further states that additional density shall be
granted for projects that preserve additional open space.
However, nowhere does the Land Use Element or any other element or policy in the Butte County
General Plan provide for cluster development to exceed the density limitations of the applicable
General Plan land use designation.
1
Butte County General Plan Figure LU-3 shows that the subject property is located within the VLDR
designation; therefore, development on this property may not exceed one unit per acre as stipulated
for VLDR in the General Plan. However, currently the developer is proposing 21 lots with homes on 7
acres, which constitutes a residential density inconsistent with the General Plan.
2. The Density Bonuses allowed under Butte County Zoning Ordinance Division 8 ("Cluster
Development") are inconsistent with the General Plan and are therefore invalid.
A zoning ordinance that is inconsistent with the General Plan is invalid when passed, and one that
was originally consistent but has become inconsistent must be brought into conformity with the
general plan. However, planning and zoning law does not contemplate that general plans will be
amended to conform to zoning ordinances: "The tail does not wag the dog" (Lesher Communications
v. City of Walnut Creek 1990). The general plan is the charter to which the ordinance must
conform.
If Butte County wants to implement cluster zoning provisions that provide density bonuses above the
land use densities allowable by its General Plan, the County will need to amend the General Plan
Use Element and land use densities allowable under its General Plan, adequately analyze these
changes through a review under CEQA, and amend the General Plan accordingly in a series of
public hearings as required by law.
3. 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.
(Copy of FEMA map below)
4. The open space proposed as a part of this cluster development subdivision needs a management
plan that identifies the type of open space by government open space classification, that provides for
appropriate management of the open space in perpetuity, and than includes a fiscal plan that will
provide adequate funding to manage the open space in perpetuity. The current proposal provides
no evidence that this has been accomplished.
5. 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, he 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.
6. TENTATIVE SUBDIVISION MAP (CLUSTERED DEVELOPMENT) TSM17-0001 Density
Calculation
2
1
The allowable density for this project has been incorrectly calculated; therefore the project
conflicts with both the General Plan and zoning. The calculation must be corrected and the project
must be re-designed to be consistent with the actual allowable density.
According to the September 27, 2018 staff report, "The number of lots is based on the density, which
is calculated by using the gross acreage of the project site. For this clustered development, the
project site is 18.5 acres."
This directly conflicts wit the definition of Residential Density (du/acre) in the General Plan, which
defines density as follows: "Densities specified in the General Plan are expressed in dwelling units
per net acreage (du/acre), minus any land dedications, and not per gross acre." (See "Acres, Gross"
and "Acres, Net")."
The zoning code goes on to define net density as "The number of dwelling units divided by the total
area of a parcel or project, excluding all easements and rights-of-way."
The current allowable density calculation must be corrected to be expressed in net density,
consistent with the General Plan, and the project must be re-designed to reflect the corrected
allowable density of the consequently lower number of allowable dwelling units for this property.
7. The General Plan does not provide a basis for a Density Bonus to be granted to this project, and
none is provided in law; therefore, the Density Bonus provision cannot be applied and the subdivision
application must be denied.
Page 6 of the September 27, 2018 staff report states that the Clustered Development section of the
zoning ordinance (including its Density Bonus provisions) implements General Plan Policies LU-P1.6,
LU-P2.5, LU-P2.6, COS-P7.4, and COS-P8.1.
This is incorrect regarding Density Bonuses. Only four policies or actions in the General Plan
mention Density Bonuses, and TSM17-001 (Leen) is inconsistent with all of them (as discussed
below).
In addition, 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 agriculturally designated land."
Staffs reasoning is whimsical and capricious; the policies in 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.
Density Bonuses and the General Plan:
7A. 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.
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 and expedite permit processing for housing units affordable to lower-income
households.
3
The Leen development subdivision consists of single-family housing, not multifamily housing, therefor
Action H-A1.2 does not apply.
7B. Goal H-2 Encourage the provision of affordable housing in the Unincorporated Area.
Policy H-P2.3 Consistent with state law, provide density bonuses to home builders proposing to
include a minimum specified percentage of lower-income dwelling units within residential
developments.
The Leen subdivision housing does not meet the definition of affordable housing under California
state law and this policy does not apply.
7C. Collaborate with existing service providers to meet the special housing needs of homeless
persons, elderly, large families, disabled persons, and farm workers. Action H-A4.8 allows density
bonuses for low-income households. The Leen subdivision housing does not meet the definition of
affordable housing.
7D. Goal AG-2 Protect Butte County's agricultural lands from conversion to non-agricultural uses.
Policy AG-2.6 The County shall retain and protect 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 a protection of
agricultural land.
This policy is not applicable with the Leen subdivision, because it requires that the agricultural land
must be protected in exchange for granting a density bonus. This is not the case wit the Leen
subdivision. The agricultural land south of the Leen property is already protected by both a
Williamson Act contract and a 300-foot Agricultural Buffer setback as required under the General
Plan. Neither the clustering nor the density bonus achieve any additional protection of agricultural
land. In fact. the density adds more homes in proximity to agricultural land, making future conversion
of that land.
Zoning can be invoked by Butte County only insofar as it implements policies set out in the General
Plan. In this case with the Leen subdivision, the County's zoning standards are being inappropriately
applied.
As demonstrated by the above examples, the Leen subdivision does not meet any of the goal,
policies, or actions identified in the General Plan as a basis for granting density bonus. It does not
meet affordable housing as defined by the State. Neither does it protect the surrounding agricultural
land, which is already fully protected by the Williamson Act and by the Agricultural Buffer setbacks,
which have been determined by the Agricultural Commissioner to sufficiently protect the surrounding
agricultural land. The Leen subdivision directly conflicts with Policy AG-P2.6 in that it claims a density
bonus without protecting any agricultural land as required under the General Plan policy.
By law, the General Plan must control in the County's land-use decision-making not the zoning
ordinance. The Leen subdivision conflicts with the General Plan. Under State law, it must be denied.
The residents of Stanley Avenue merely want the Butte County Planning Commission to uphold the
General Plan, VLDR with one home per acre, and not set a precedent in the agricultural area of Butte
County.
4
Regards,
Doug Leiker
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