Follow up on The Olivia Project - Rationalizations and Handwaiving

When we talk about the Olivia Project that the Council approved earlier this month on a 3-2 vote, I accept that reasonable people can disagree whether some benefits are worth the risks.  And if that's all it was - a disagreement about what direction the city should take - then I would probably write my summary as I do after each meeting and leave it alone. 

But that's not what happened.  Shortly after the vote, Councilmember Catalano attempted to distort the record on NextDoor - going beyond a disagreement and actually making a claim that wasn't true.  She repeated these false claims in an Op-Ed in the Pioneer soon to be delivered. 

Here is what she said:

The claim that no one raised a basis for denying CEQA exemption is simply not true. I raised the issue of not meeting the burden required for CEQA exemption. I discuss this in detail here.

Catalano revealed her preconceived intention to approve this project when she characterized environmental review as merely a delay tactic.  Pierce called the rural zoning outdated. While simultaneously relying on an outdated traffic study.  The fact is, the criteria for CEQA exemption was not met and Catalano and Pierce handwaived this away. Staff couldn't answer the question, and the applicant's attorney chose not to address the issue.

If the rest of the council who voted in favor of CEQA exemption and this project want to say their appeasement was to mitigate risk, so be it. Reasonable people can disagree.  There is no need to lie or mislead about the facts and make the false claim that no one raised a basis for denial. The rest of the Council could have taken the time to resolve this matter, done additional diligence, and sought environmental review. Unfortunately for Clayton, that didn't happen.

But there's more.  Catalano goes on to demonstrate misunderstanding of the order of analysis:

CEQA exemption as used requires 5 specific criteria to be met. Those items are a threshold matter. By skipping to and focusing on the "substantial evidence" standard, Catalano elides over these criteria. Here are the five criteria:

(a) The project is consistent with the applicable general plan designation and all applicable general plan policies as well as with applicable zoning designation and regulations. 

(b) The proposed development occurs within city limits on a project site of no more than five acres substantially surrounded by urban uses. 

(c) The project site has no value as habitat for endangered, rare or threatened species. 

(d) Approval of the project would not result in any significant effects relating to traffic, noise, air quality, or water quality. 

(e) The site can be adequately served by all required utilities and public services. 

For example, if the project was on a parcel greater than 5 acres, infill exemption would not apply. If the project is not substantially surrounded by urban uses, then infill exemption would not apply. Those are either yes or no questions and the "substantial evidence" standard does not yet come into play.  This is hardly a speculative argument.

Only AFTER the infill analysis is complete and a determination is made that infill applies, then to deny the exemption would the "substantial evidence" standard come into play. And even if the Council felt the basis needed to be elevated to this more rigorous standard - that bar was met given the longstanding zoning of rural properties around the project site.

Friends of Mammoth v. Town of Mammoth Lakes Redevelopment Agency makes clear that the exact definition of what is "urban uses" is not defined by law, statute, or caselaw.  From that case (internal citations omitted, my emphasis):

The term "urban" is "not fixed, objective, or easily ascertainable."... At a minimum, however, the mere fact that property is not vacant or is developed in accordance with its zoning does not by itself render the property developed for urban uses.
...
The term "urban" thus refers more to the location and "varying characteristics" of a use than to the type of use. ... For example, a residential dwelling can exist either in an urban area or in a rural area. In either locale, the dwelling can be large or small and, in this era, will likely be served by many public utilities. The fact that it is a developed dwelling does not make the dwelling an urban use. Rather, it is the location and characteristics of the dwelling and its environs that may make the use an urban use. One would more likely conclude a residential dwelling unit located on the 10th floor of a high-rise apartment building in a downtown area served by mass transit is an urban use, while a residential dwelling unit located on a 10-acre parcel in a area devoted to agricultural uses is not an urban use.

As I laid out in my previous post, surrounding properties are zoned "rural estate".  They can all have horses on their property.  This type of use, as well as the literal zoning state the surrounding parcels are not "urban uses".  This clearly demonstrates that requirement (b) from the CEQA analysis above was not met.  Those voting in favor of this project ignored this for some reason.

And the same is true with the outdated and misapplied traffic study.   My position is not that an updated traffic study or using the right demographic would yield any particular result. The point is, we don't know because it wasn't done. My position is that the burden of satisfying the 5 criteria required for infill exemption was not met. 

Catalano likes to refer to the maximum possible penalties to heighten the risk.  But these exorbitant amounts are for non-compliance with the Density Bonus aspect, not the CEQA one. If CEQA analysis was required, then the question about the density bonus is is tabled until CEQA is resolved. I am all for following the law. The fact is, there was no requirement to grant the CEQA exemption because the project did not meet the criteria to do so.  Anything else is simply handwaiving and rationalization.

I would have hoped that the Council do the diligence that they were elected to do.  Unfortunately those voting in favor of this project did not.  

3.17.20 Meeting Summary

Last night there were actually two meetings.  Given the current situation with the COVID-19 related closures and 'shelter in place' order, both meetings were held in the 3rd floor conference room at City Hall.  Three of us attended via phone and two were present in the building.  We also live streamed the meeting via YouTube as a trial to see if that was viable.

The first meeting was an urgency meeting.  The two significant actions were as follows:

1. Declared a Local Emergency.  This allows the city to qualify for certain FEMA and other state and federal relief that may later be available as reimbursements.  We will review the status of the Local Emergency at least once every 60 days with the intent to terminate this declaration as soon as possible.
2. Authorized the City Manager to approve financial demands of the city during the Local Emergency.  Normally payments over a certain dollar amount need to be approved by the Council.  We typically do this as a consent calendar item. Given there may be challenges in meeting, we wanted to allow the city to conduct normal operations easier.  We will continue to review and disclose detailed spending.

Both actions were supported unanimously. The County has put out a site with good updates on the COVID-19 virus here: https://www.contracosta.ca.gov/

The second meeting was the regularly scheduled meeting.  There were only consent calendar items of which one was:

1. Supporting asking CA State University System to locate a new and larger campus within the Concord Naval Weapons Station Project.

Upcoming Council Meeting 3.17.20

Governor Newsom issued an executive order yesterday in response to the COVID-19 pandemic.

#11 at the bottom of the link above talks about public meetings, including our Council meetings. In summary, some of the more stringent requirements regarding electronic meetings have been relaxed while still trying to adhere to the spirit of public meetings.

As a result of this, we will be trying something new for the upcoming 3.17.20 meeting. Some councilmembers and staff will be on the meeting via phone, while still allowing anyone an opportunity to offer public comment via phone in a designated spot.

The meeting will actually be held in the 3rd floor conference room in City Hall. This will most likely be limited staff on site, with a phone to participate in person. I recommend people follow CDC and local health officials guidance when attending events. Other ways to participate in the meeting as follows:

1. E-mail public comments to City Clerk, Ms. Janet Calderon at: Jcalderon@ci.clayton.ca.us
2. Send public comments as a “Personal Message to the City’s Facebook Page @CityofClaytonCA 
3. Livestream online on the City of Clayton, CA Youtube page. Link: https://bit.ly/2TNhdzJ 

The public is encouraged to submit comments in writing. All comments received by 5:00 p.m. on Tuesday March 17, 2020 will be provided to the City Council.

3.3.20 Meeting Summary - Olivia Project Approved

Last night the Council denied the appeal of CEQA exemption and determined the Olivia project to be exempt from environmental review by a vote of 3-2.  Myself and Councilmember Diaz voted no. The Council also granted the appeal of the applicant, Bill Jordan, approving the Olivia project by a vote of 3-2.  Again, myself and Councilmember Diaz voted no.

Mayor Pierce spoke at some length again as she has in the past, about her desire to want to make Clayton a place that her kids and grand kids can afford to live in.  This is a laudable goal.  I too would love for my kids to be able to live in the place where they grew up.  Unfortunately, this project is not how that will come to pass.  As Pierce noted, with 74 of the 81 units being market rate, it is unlikely that these will be affordable for any young family.  Pierce herself said she would not likely be able to afford these units.

Realistically the only way that Clayton will be a place that all of our kids will be able to afford to live here, is if the property values of the city, and perhaps the overall housing market in general, were to dramatically decrease.  That's the reality.  If the intent is to make the city and the state more affordable, then we shouldn't be haggling over an 81 unit apartment complex.  Pierce and those who feel similarly should be in favor of a hundred different 81 unit apartment complexes, or a thousand, or ten thousand of them.  They should be pushing draconian rent control, more taxes to fund pet projects, and top down command and control to bend the economy to suit their desired outcomes.  Actually, that is what Pierce is trying to do.  Because that is what it will take to make housing more affordable in one of the most desirable and in demand places to live in the country.  That is not an outcome I would be in favor of but it is what Pierce has been pushing for across the region.

We are elected to represent our constituents in this city.  Not the region, not the state.  The property values of our residents represent some of the biggest investments they have made in their entire lives.  Sacrificing that hard earned savings on the alter of someone's morality is not what we are elected to do.  

Pierce went on to say how she works with various regional groups to try to coordinate development efforts in the region because her constituents in Contra Costa County are concerned about housing prices.  That may be true, but I don't represent all the people in Contra Costa County.   And when Mayor Pierce is sitting along side me, she should not be either.  I represent the people of Clayton.  

And while it is true that historically there has been some great development in the city, we should not equivocate on what development actually means.  All development is not the same.  Each project should be evaluated on its own merits.  Some will be great, like Oakhurst and Clayton Station where Safeway is.  Others will not be, like the failed gas station, the failed memory care facility in the center of downtown, and this 81 unit rental complex across three separate parcels.

Ultimately there were two decisions last night CEQA and Project Approval/Density Bonus and I'll break up commentary around both. 

CEQA

The project sought CEQA exemption under Class 32 Infill.  This exemption requires 5 criteria to be true:

(a) The project is consistent with the applicable general plan designation and all applicable general plan policies as well as with applicable zoning designation and regulations.

(b) The proposed development occurs within city limits on a project site of no more than five acres substantially surrounded by urban uses.

(c) The project site has no value as habitat for endangered, rare or threatened species.

(d) Approval of the project would not result in any significant effects relating to traffic, noise, air quality, or water quality.

(e) The site can be adequately served by all required utilities and public services.

One item I focused on was item (b).  This requirement states that the project needs to be substantially surrounded by urban uses.  There's no hard and fast rule for what is "urban" vs. what is "rural", but in all analysis in every context this question is examined, something cannot be simultaneously "urban" and "rural".  So let's look at the surrounding parcels in the general plan map:

On two sides of the Olivia project parcels, are zoned properties that are literally zoned, "rural estate".  I find it incredulous that those parcels that are "rural estate" are being construed equivalent to "surrounded by urban uses".  If we look at the zoning map, the designation is "R-40-H":

Which means among other things, that each of these parcels may have horses on them. Having horses is incongruous with "urban uses". This alone would be sufficient to deny the CEQA exemption.

But there is more. Required (d) above states that to qualify for the CEQA exemption being sought, the project must not result in any significant effects relating to traffic, noise, air quality, or water quality. To support this assertion for traffic, the applicant and the city, relied on a traffic study that was done 10+ years ago. And that is in addition to the analysis being based upon senior housing, which we know this project is not. So not only is the wrong demographic for calculation being used, it is relying on outdated data.

My fellow councilmembers who voted in favor of this project as well as staff focus on the fact that there hasn't been much building in Clayton over that time period. But this is a myopic view of factors that may impact traffic. Traffic has certainly gotten worse over the past 10 years, as Clayton functions as a pass through from the east in Brentwood, and other places where there has been dramatic growth. It's willful blindness to think that a 10+ year outdated traffic information based on the wrong demographic is sufficient to sustain a CEQA exemption.

At the very least, the combination of these two things should have been persuasive to deny the CEQA exemption. Councilmember Catalano characterized this as merely a "delay tactic". But this is revealing in the overall thought process. To consider performing environmental review as simply a delay tactic means that the outcome is a fait accompli. But this is not so. The purpose of an environmental review is to examine potential environmental impacts, assess those impacts, and then take action based on that new information. Being open to taking action on new information is exercising the appropriate level of diligence. Treating environmental review as merely a delay tactic as something to check off and then proceed as if nothing happened is not the intent of CEQA.

Density Bonus Concessions and Waivers
The law does not allow very much discretion when it comes to the granting of concessions. The Olivia project requested concessions on parking and setbacks. The law grants slightly more discretion in terms of waivers. Waivers can be denied if they would not otherwise preclude the building of the project overall. So let's look at the waivers requested:  Here are a selection of some of the waivers sought and granted:

• Parking lot landscape requirements - requiring certain landscaping that is within the Clayton Municipal Code would not physically preclude the project. These requirements were waived.
• Percentage of regular and compact parking spaces - the percentage of regular spaces could be preserved without physically precluding the project – either by subterranean parking, or by other means. 
• Building height limit of 35 feet within 50 feet of abutting single family residential district - But for this waiver, would the project be precluded? No.  There is no rationale offered for why this waiver is necessary, nor any indication that but for this waiver the project would be physically precluded.
• Tree replacement - But for this waiver, would the project be precluded?  No.  It seems the developer is requesting this waiver because they disagree with the trees that are on the City’s Protected Tree list. What is the purpose of the designated list if they are to be waived for seemingly no reason? That an applicant or their representative disagree with the inventory of species on the city’s protect tree list is irrelevant to the analysis of a waiver. Using trees on the designated list does not physically preclude the project.

All of these things were waived by the City and Council who voted in favor of this project, and for no reason other than to accommodate the applicant.

***

There are a few laws in play here. We have our own inclusionary housing ordinances as part of the CMC. Those ordinances already require 10% inclusionary housing for any development over 10 units. The next is the Density Bonus Law. Because the developer is putting in a single additional affordable housing, this project is seeking to trigger the CA Density Bonus Law. That law allows circumvention of the rules for density, height, parking, setbacks, etc. This law is horrible. When the Council chose to apply this same law to rental properties in early 2019, I was the only one opposed.

A single affordable unit allows a developer to put in 20 more market rate units and construct a project totally out of character of the city. For 1 unit, lawmakers in Sacramento and some of my colleagues here by way of zoning changes have not represented their constituents in this city. Our woke overlords in Sacramento and developers may be pleased, but the people of Clayton are not.

With 81 units, and 117 bedrooms, the developer through their own paid consultants asserted that this project will not generate more than 35 peak AM and PM hour trips to and from the properties. That’s a joke. We know the analysis was based on outdated and inapplicable data. There is clearly the potential for significant impact and based on the law, the appropriate way to resolve these unanswered questions is conduct and EIR.

The city already continually renews onsite parking waivers for downtown recognizing that there isn’t enough parking in our downtown area. Having a giant Emeryville like building in our downtown can only serve to exacerbate the parking shortage, and overflow impact to High Street and Stranahan. The consultant that the city retained indicated that the parking was inadequate, spillover wasn’t addressed, relied on outdated information from a different state, and did not consider the nature of our community in that we have few transit, shopping, and employment options in town and therefore the rate of parking and need for vehicles would be increased.

During the first Planning Commission meeting, the only people that supported this project had a financial interest in it. When Howard Geller spoke, he phrased many of his statements as “we are going to” etc. In other words, he’s speaking as if he is involved in the project itself. Given the history of when the rezoning of these properties occurred, while Mr. Geller was on this Council, the implication that “we” are going to do something seem untoward. Mr. Hoyer also spoke in favor of this project at several of the meetings – Mr. Hoyer sold an adjacent undeveloped parcel about 1 month ago for $1.5M. There will be more development in that same location as a result. And while that is a large sum of money for a parcel of land, the commensurate decrease in home value and quality of life for a great many other Clayton residents should not be overlooked.

Ultimately, I ask myself how this will help Clayton.

Should the Council have examined this proposal with greater professional skepticism? It appears that each step of the way, the Council has accepted the applicant’s assertions at face value. That doesn’t seem like the appropriate level of review both from a process perspective, as well as from the lead agency in determining the necessity of an EIR from a CEQA perspective. When the applicant asserted cost feasibility, the Council accepted the figures without examining them. When our consultants called into question the applicability of the parking and traffic information, the Council didn’t call for competing analysis. When waivers were requested for items outside of what was necessary to make project viable, the Council acquiesced without applying the appropriate level of diligence or standard of review. Not a denial, but to exercise a level of diligence commensurate with the magnitude of the project.

These buildings will serve as a monument to poor planning, poor choices by our elected leaders, and a sacrifice of a part of what makes this city great. I asked my fellow councilmembers, that if they had any doubt over the assumptions or conclusions that were offered, to exercise the courage of their convictions and seek additional review.

I was not able to persuade enough of my colleagues, and the project was approved on a 3-2 vote with myself and Councilmember Diaz voting no. I ask that people remember that come November. Elections matter and who we choose to lead us matters.