By Clayton Watch
CONTRA COSTA SUPERIOR COURT MARTINEZ, CALIFORNIA DEPARTMENT: 39 HEARING DATE: 10/29/20 - 4 - 6. TIME: 10:00 CASE#: MSN20-0543 CASE NAME: CLAYTON FOR RESPONSIBLE DEV. v CITY OF CLAYTON SPECIAL SET HEARING ON: PETITION FOR WRIT OF MANDATE SET BY DEPT. 39 AT REQUEST OF PARTIES STIPULATION * TENTATIVE RULING:
* I. Background The City of Clayton approved an 81-unit apartment project called “the Olivia” near the downtown area. Petitioner Clayton for Responsible Development challenges this approval on several grounds, falling into two general categories. First, Petitioner claims that the City improperly found the project categorically exempt from preparation of an Environmental Impact Report under the California Environmental Quality Act (CEQA). Second, Petitioners claim that the City improperly applied the state housing statute and local ordinance allowing “density bonuses” for projects that provide units for low-income people. The project sits on three lots totaling 3.2 acres at the corner of High Street and Marsh Creek Road. The initial project application was filed with the City on September 6, 2017. On December 10, 2019, the Planning Commission determined that the project was exempt from CEQA, but reached no decision on the Density Bonus application (based on a 2-2 vote). Several citizens appealed the former decision to the City Council, while the applicant and Real Party in Interest William Jordan appealed the latter. On March 3, 2020, the City Council denied the appeal as to the CEQA exemption, and granted Jordan’s appeal, approving the Density Bonus Application. By virtue of the Density Bonus, the project was allowed to have 81 units, while the otherwise applicable zoning for that area would allow only 60 units.
II. Standard of Review “If a public agency properly finds that a project is exempt from CEQA, no further environmental review is necessary. [Citation.] The agency need only prepare and file a notice of exemption [citation], citing the relevant statute or section of the CEQA Guidelines and including a brief statement of reasons to support the finding of exemption [citation].” (Muzzy Ranch Co. v. Solano County Airport Land Use Com. (2007) 41 Cal.4th 372, 380.) In most circumstances, “ ‘the substantial evidence test governs our review of the city’s factual determination that a project falls within a categorical exemption.’ [Citation.]” (Banker's Hill, Hillcrest, Park West Community Preservation Group v. City of San Diego (2006) 139 Cal.App.4th 249, 267 (Banker’s Hill).) “As to projects that meet the requirements of a categorical exemption, a party challenging the exemption has the burden of producing evidence supporting an exception. [Citations.]” (Berkeley Hillside Preservation v. City of Berkeley (2015) 60 Cal.4th 1086, 1105 (Berkeley Hillside).)
For challenges to land use permits and variances, “the inquiry extends to ‘whether the respondent has proceeded without, or in excess of jurisdiction; whether there was a fair trial; and whether there was any prejudicial abuse of discretion. Abuse of discretion is established if the respondent has not proceeded in the manner required by law, the order or decision is not supported by the findings, or the findings are not supported by the evidence.’ [Citation.]” (Wollmer v. City of Berkeley (2011) 193 Cal.App.4th 1329, 1338.) “The trial court presumes that an agency's decision is supported by substantial evidence; it is the petitioner's burden to demonstrate the contrary. As well, the lower court examines the entire record and considers all relevant evidence, including evidence that detracts from the agency's decision. …. [A]s to pure questions of law, the trial court exercises independent judgment.” (Id., at 1338-39.)
Finally, “ ‘When we review an agency's decision for consistency with its own general plan, we accord great deference to the agency's determination.’ ” (The Highway 68 Coalition v. County of Monterey (2017) 14 Cal.App.5th 883, 896.) “Accordingly, an agency's ‘findings that the project is consistent with its general plan can be reversed only if it is based on evidence from which no reasonable person could have reached the same conclusion. [Citation.]’ [Citation.]” (Ibid.)
III. Analysis
A. First Cause of Action: CEQA: Categorical Exemption for In-fill Development The requirement to prepare an Environmental Impact Report for developments is subject to several “categorical exemptions,” one of which applies to “in-fill development.” (CEQA Guidelines, “Class 32,” Cal. Code Regs., tit. 14, § 15332.) The City relied on that exemption in approving the Olivia project, and Petitioner asserts that it does not apply here. To qualify for the in-fill development exemption, the project must meet five requirements:
(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.
Petitioner contends that the project fails to satisfy three of the conditions: that it is not consistent with the general plan and zoning; that it is not surrounded by urban uses, and that it will have significant effects relating to traffic. The City points out that the language only requires consistency with “applicable” general plan and zoning designations, which they interpret to include any concessions or waivers granted by virtue of the “density bonus” statute. (Thus, the issue of consistency with the general plan and zoning requirements arises both in the CEQA claims and the other claims.)
1. Consistency with General Plan Petitioner points out that under the local Zoning Code, the maximum density at that site is 20 units per acre. The base number of units (60) falls within that limitation for a 3.2 acre site, but the total after adding the bonus is 81, which comes out to 27 units per acre. Thus, Petitioner contends, the project is not consistent with the General Plan and zoning designations, thereby failing condition 15332(c). The City contends that that there is no inconsistency here, because the condition refers only to “applicable” plan and zoning provisions, and the ordinary density provisions are not applicable to projects approved under the density bonus provisions.
Much of the debate on this point centers on the meaning of Wollmer, supra, 193 Cal.App.4th 1329. The City asserts that Wollmer holds that, as a general matter, any development standards that are modified or relaxed pursuant to the density bonus law are not “applicable” for purposes of the in-fill exemption, and therefore cannot be the source of “inconsistency” with those requirements. Petitioner reads Wollmer more narrowly, arguing that it found that the project in question in fact was consistent with general plan density requirements, even with the “bonus” units, because of that city’s “general area” density requirement, which allowed for “clusters” of higher density within a general area, as long as the total units within the general area fell within the overall limit. (Id., at 1345.)
In Wollmer (as in this case), “[t]he City reasoned that the development standards which it waived pursuant to section 65915(e) were not ‘applicable’ to the project within the meaning of Guidelines section 15332, subdivision (a) because the above statute renders these standards inapplicable in order to allow the density bonus.” (Id., at 1348.) Also, the city’s density bonus ordinance was actually part of the zoning ordinance.
This Court notes, as did the court in Wollmer, that the density bonus law does not require cities to waive development standards if the waiver or reduction will have a “significant adverse impact on the health, safety, or physical environment that cannot be mitigated or avoided.” Inconsistency with zoning or plan requirements by themselves, however, is not by itself a specific adverse impact upon the public health or safety. (Id., at 1349.)
Petitioner is correct that the court in Wollmer essentially determined that there was no inconsistency between the apartment project and the General Plan and zoning, because the General Plan densities were for the general area, not the specific parcels (“cluster” zoning), such that even with the new project, the general area was under the total density limit in the General Plan. (Id., at 1345.) But that was not all the court held. Discussing a variety of zoning standards that were waived based on the density bonus program, it stated that “[t]aking these laws together as they operate in the context of a density bonus project, it is clear that the waived zoning standards are not ‘applicable’ and that the requirements of guidelines section 15332, subdivision (a) were met.” (Id., at 1349.)
Accordingly, the fact that the project, after application of the density bonus provisions, allows a greater density than otherwise would be allowed by the General Plan and zoning, does not render it inconsistent with either the General Plan or zoning.
2. Substantially Surrounded by Urban Uses The parties dispute whether the project site is “substantially surrounded by urban uses,” which is another condition of the in-fill exemption. Petitioner claims that it is not, and that the City never specifically found that it is.
The City found that the in-fill exemption applied to this project. (AR 27.) Although the City did not make a specific finding about the urban uses requirement, the record shows that the City was aware that this requirement was part of the in-fill exemption. (AR 29, 78-79, 140-141.) Thus, the record supports finding that the City found this element was met when it found the infill exemption applied to the project. In addition, Petitioner cites no authority for the rule that a city must make a specific finding for each element of a categorical exemption.
The Court’s review here is whether there is substantial evidence that the project is substantially surrounded by urban uses as required for the in-fill exemption. (Banker’s Hill, supra, 139 Cal.App.4th at 267.) Interpreting the phrase “substantially surrounded by urban use,” however, is a question of law for the Court. (Id., at 570, fn. 20.)
The two questions for this Court to decide are whether the area is “urban use” and if so, whether the project is “substantially surrounded” by such use.
The Court has not located a regulatory or statutory definition of “urban use” as the term is used for the Class 32 in-fill exemption.
The leading case here is Banker’s Hill, supra, 139 Cal.App.4th at 271, in which a proposed apartment tower adjoining San Diego’s Balboa Park qualified as an urban use because it is a “quintessential urban park.” The parties dispute the application of that case here. The court found that it was urban because it was surrounded by heavily populated areas, and included museums, theaters, and restaurants. Certainly, the “rural estate” area to the west of the project is no Balboa Park. The court used a definition of urban uses from case law, “ ‘[t]he term “urban” is “not fixed, objective, or easily ascertainable,” ’ but it has been ‘ “defined as ‘of, relating to, characteristic of, or taking place in a city … constituting or including and centered on a city … of, relating to, or concerned with an urban and [specifically] a densely populated area … belonging or having relation to buildings that are characteristic of cities … .’ ” ’ ”. (Banker’s Hill, supra, 139 Cal.App.4th at 270-271 quoting Friends of Mammoth v. Town of Mammoth Lakes Redevelopment Agency (2000) 82 Cal.App.4th 511, 541, 544). “Accordingly, ‘[t]he term “urban” … refers more to the location and “varying characteristics” of a use than to the type of use.’ ” (Banker’s Hill, supra, 139 Cal.App.4th at 271.) (That court also specifically held that “[w]e need not and do not reach the issue of whether development that is admittedly surrounded on three sides by urban uses would nevertheless not be ‘substantially surrounded’ by urban uses if it is fronted by a nonurban use on the fourth side.” (Id., at 271, n. 22 [emphasis in original]).)
In addition to case law, CEQA has defined the term “Qualified urban use” as “any residential, commercial, public institutional, transit or transportation passenger facility, or retail use, or any combination of those uses.” (Pub. Resources Code § 21072.)
The term “qualified urban use,” however, is found in sections that include requirements of an “urbanized area” or “urban area.” (See, Pub. Resources Code §21061.3 [urbanized area]; Pub. Resources Code §21159.23 [urbanized area]; Pub. Resources Code §21099 [urban area]; Pub. Resources Code §21094.5 [urban area].) “Urbanized Area” is generally defined as 100,000 people or more. (Cal. Code Regs., tit. 14, §15191(m) and §15387; Pub. Resources Code §21071). Urban Area is defined similarly. (Pub. Resources Code § 21094.5.) Clayton is a small city and is unlikely to meet the definition of urbanized or urban area (nor has anyone suggested that the City needs to meet this requirement). Therefore, the definition of “qualified urban use” does not apply here. This conclusion is bolstered by the fact that Banker’s Hill did not discuss this definition.
The Court will follow Banker’s Hill and focus on the location and varying characteristics of a use more than the type when deciding what constitutes urban use.
Reviewing the General Plan, the area to the north of the site is designated “Town Center Commercial,” to the south “Rural Estate,” to the east “Single Family High Density and Town Commercial,” and to the west “West Town Center Commercial and Rural Estate.” (AR 1797.) The Record does not disclose the exact amount of each designation. There are some maps in the record that show the designated uses in the area. (AR 1847, 1861; see also AR 6608, 6616.) These maps show a mix of commercial, rural and some higher density residential. However, these maps show only general plan designations and not necessarily actual use of the properties.
Petitioner focuses on the lots designated as “Rural Estate”, which are south and west of the project. A significant portion of this rural area is designated as allowing horses. Petitioner quotes the Vice Mayor, who said “if you have a horse, I’m calling you rural.” Areas designated for rural use do not necessarily mean that they cannot count as urban uses. For example, a horse stable could be rural, however, having a similar horse stable could also constitute urban use if it was in an urban area. The key consideration is the location and characteristics of the use. The General Plan designations do not show actual uses and thus do not help much when determining the characteristics of the actual use.
In addition to the General Plan designations, the Court has considered aerial photos of the Project and surrounding area. (AR 94, 144, 618, 5733, 6059.) These photos provide better information on the actual characteristics of the use. While the rural designated areas could presumably be used for classic rural uses such as farming, open space or housing livestock, there is no evidence that they are actually used for these purposes. Instead, these properties appear to have single family homes with large yards, which can be urban use. The other important consideration when deciding if something is an urban use is location. The location of these properties – only a few blocks from the City’s commercial center – tips the balance towards urban. Therefore, the lots south and west of the project constitute urban uses.
Accordingly, the Court finds that when looking at the lots adjacent to the project, the project site is substantially surrounded by urban uses.
An additional approach to the issue is to look a little farther out-- at the surrounding blocks. The Court has not found authority discussing exactly what area the Court should consider when deciding if something is substantially “surrounded.” This may include not just include the immediately adjacent parcels, but the properties in close proximity to the project site. Using this metric is consistent with the purpose of the in-fill exemption, which is designed to allow new development in the middle of an area that has already been developed, in contrast to development that expands the edges of urban use. The aerial photos make it clear that the neighboring blocks are almost entirely urban uses. (AR 618.) Thus, the Court finds that the project is substantially surrounded by urban uses when looking at the neighboring blocks.
3. Significant Effects—Traffic Safety The third possible concern with whether the exemption applies is subdivision (d), which requires that “[a]pproval of the project would not result in any significant effects relating to traffic, noise, air quality, or water quality.” This prong of the exemption is important, because it helps assure that the in-fill exemption when combined with the density bonus statute does not become a blanket exemption for all density bonus projects.
Under this subdivision, Petitioner asserts that the lack of on-site parking will affect traffic safety, because people with no on-site space will park on nearby streets, and many will cross Marsh Creek Road at a high-speed blind curve. This claim is supported by testimony of various lay witnesses at the relevant hearings. There is question about whether this is the type of issue for which “substantial evidence” must consist of the views of qualified experts, or is a matter that may be based on relevant personal observations. (Bowman v. City of Berkeley (2004) 122 Cal.App.4th 572, 583.) The Court need not reach this question, however, because the real issue here is whether there is substantial evidence to support the City’s finding as to traffic safety.
In making this determination, the City relied on a parking study prepared by a professional engineer at Kimley-Horn, which determined that the 62 parking spaces was sufficient for the project. (AR 834.85-834.92 (June 2019); 5818-12 (August 2019).) The June 2019 memorandum of the study was reviewed by an expert at Michael Baker International. (AR 834.77-834.84 (review); AR 5873-78 (proposal and resume).) Michael Baker, however, concluded that the numbers were too low and the project should have at least 90 parking spaces. (AR 834.84.) The City appeared to accept Michael Baker’s number of 90 spaces. (AR 72-73.) Thus, both studies provide substantial evidence that requiring at least 90 parking spaces will be provide sufficient parking for the project and consequently, will not have a significant effect on traffic or safety. The Court finds that the project will not result in any significant effects relating to traffic, noise, air quality, or water quality. (Petitioner has not contended that there are material effects on noise, air quality, or water quality.)
Thus, the Court finds that substantial evidence supports the City’s finding that the in-fill exemption applies to the project.
B. Second Cause of Action: CEQA: Not Categorically Exempt Due to “Unusual Circumstances”
The CEQA Guidelines also provide specified “blanket exceptions” to the categorical exemptions. (Cal. Code Regs., tit. 14, § 15300.2.) One of these is that the “categorical exemption shall not be used for activity where there is a reasonable possibility that the activity will have a significant effect on the environment due to unusual circumstances.” (Id., subd. (c).) Where a categorical exemption applies, the burden shifts to the party challenging the exemption to show that the exception applies. (Banker’s Hill, supra, 139 Cal.App.4th at 261.)
“A party invoking the exception may establish an unusual circumstance without evidence of an environmental effect, by showing that the project has some feature that distinguishes it from others in the exempt class, such as its size or location. In such a case, to render the exception applicable, the party need only show a reasonable possibility of a significant effect due to that unusual circumstance. Alternatively, under our reading of the guideline, a party may establish an unusual circumstance with evidence that the project will have a significant environmental effect. That evidence, if convincing, necessarily also establishes ‘a reasonable possibility that the activity will have a significant effect on the environment due to unusual circumstances.’ [Citation.]” (Berkeley Hillside, supra, 60 Cal.4th at 1105.) Thus, Petitioner must show (1) there are unusual circumstances and a reasonable possibility of a significant effect due to that unusual circumstance or (2) that the project will have a significant environmental effect.
“Whether the project presents unusual circumstances under [the first] alternative is a factual inquiry subject to the traditional substantial evidence standard of review. (Berkeley Hillside, supra, 60 Cal.4th at p. 1114.) This standard requires that we ‘ “resolv[e] all evidentiary conflicts in the agency's favor and indulg[e] in all legitimate and reasonable inferences to uphold the agency's finding.” ’ [Citation.]” (Walters v. City of Redondo Beach (2016) 1 Cal.App.5th 809, 820.) When determining if there is a reasonable possibility of a significant effect due to that unusual circumstance, “ ‘ “an agency is merely supposed to look to see if the record shows substantial evidence of a fair argument that there may be a significant effect. [Citations.] In other words, the agency is not to weigh the evidence to come to its own conclusion about whether there will be a significant effect. It is merely supposed to inquire, as a matter of law, whether the record reveals a fair argument. …” ’ (Berkeley Hillside, at p. 1104, italics omitted.)” (Walters, supra, 1 Cal.App.5th at 820.)
Under the second alternative, “a challenger ‘may establish an unusual circumstance with evidence that the project will have a significant environmental effect.’ (Berkeley Hillside, supra, 60 Cal.4th at p. 1105, italics added.)” (Ibid.) Petitioner has not attempted to show that removal and replacement of the trees will have a significant environmental effect. The issue here is whether Petitioner has met their burden on the first alternative showing for an unusual circumstance.
The “unusual circumstance” here concerns the removal and replacement of trees. The project site has a lot of trees (152), 34 of which are species deemed “protected” by local ordinance. (CMC § 15.70.015(c).) The project will remove 107 trees, 24 of which are protected. (AR 83, 3639.) All but eight of the trees will be replaced, but the plan may allow some of the replaced “protected” trees to be other non-protected species. (AR 83.)
Petitioner has not shown that removing and replacing almost all the trees constitutes an unusual circumstance. When engaging in development of a project, it would be common to remove trees on the property as they can interfere with building plans. Thus, tree removal (at least on this scale), along with subsequent replacement of almost all the trees, is not an unusual circumstance.
Accordingly, Petitioner fails to establish a violation here because tree removal on the scale proposed here is not an unusual circumstance. Nor does substantial evidence in the record show that the changes to trees will have a significant effect on the environment.
C. Third Cause of Action: Inconsistency with General Plan
Because consistency with the General Plan is one of the conditions of the in-fill exemption, the issue has been largely addressed above, and the same considerations and authorities apply.
Petitioner points out that under the local Zoning Code, the maximum density at this site is 20 units per acre. The base number of units (60) falls within that limitation for a 3.2 acre site, but the total after adding the bonus is 81, which comes out to 27 units per acre.
The City has the better argument here, for two reasons. First, the local density bonus ordinance is built in to the zoning law, such that a project approved in compliance with the density bonus provisions is by definition “consistent” with the zoning code, even where it exceeds otherwise applicable density requirements.
Moreover, a density “bonus” necessarily implies an allotment that exceeds the density that ordinarily would be allowed by the otherwise applicable General Plan and Zoning Code requirements. Thus, the applicant may start at the maximum permitted, and seek a bonus. If “consistency” were judged by the density existing after receipt of the bonus, then the applicant would have to start with lower density than currently permitted and seek a “bonus” bringing the project up to the maximum currently permitted. That would not be a “bonus” at all.
D. Fourth Cause of Action: Violation of Clayton Municipal Code Parking Requirements
Petitioner asserts that the amount of off-street parking provided in the project violates the Clayton Municipal Code. (CMC §17.37.030A.) The parties agree that the amount ordinarily required would be 180 spaces. (The ordinance requires 1.5 spaces per one bedroom unit, 2 spaces per two-bedroom unit, plus 0.5 guest spaces per unit, which, based on 45 one-bedroom units and 36 two-bedroom units, equals 180.) The state Density Bonus statute, and the counterpart adopted locally (CMC §17.90.110C), however, provide that a qualifying applicant may request “concessions” to otherwise applicable requirements, which the city must grant, unless it finds that to do so would “have a specific, adverse impact … upon public health and safety or the physical environment” (or other findings not relevant here). (Government Code § 65915(d)(1)(B).) Even where a concession is required and granted, however, a parking concession has a specific numerical limitation, which, for this project, is that the city could not require more than 117 spaces. (Government Code, §65915(p).) Accordingly, since the requested concession (ultimately 106 spaces) was under the 117 space limit, the City was obligated to grant the request unless it made an “adverse impact” finding.
As initially proposed, the project would have had only 62 spaces. Two reports (described above) were then done. The Kimley-Horn study (AR 5818-5825), concluded that the projected created a demand for only 53 spaces, based largely on information indicating that people 55 and older are less likely to have as many vehicles as younger people. (AR, 1305, 5834, 5825.) The second, the Baker Report, was a peer review of the Kimley-Horn study, conducted by Michael Baker International. (It is formatted as a series of comments and proposed revisions to the Kimley-Horn study.) It faulted the Kimley-Horn in some respects, including underestimating demand for parking from persons 55-62. (AR 1487-1493.) It noted that many California cities, when considering senior housing projects, simply require 50% of the otherwise required amount, which in this instance would be 90 spaces. (AR 1493.) The staff report to the Planning Commission indicates that staff found 62 spaces inadequate and asked the developer to provide 86 spaces. The developer did so. (AR 1801, 1802.) Subsequently, before the matter came before the City Council, the developer revised his proposal to provide for 106 spaces. (AR 72, 116.)
Petitioner asserts that the failure to provide more parking “will have an impact to public safety due to the need for residents to park off-site and navigate busy roads.” Petitioner relies on comments of Mr. Daniel Hummer stating that there may be up to 234 residents, and that parking for 175 vehicles in needed. Given that the record shows no facts supporting this claim, or that Mr. Hummer has any expertise here, his views do not constitute substantial evidence in this context. (Bowman, supra, 122 Cal.App.4th at 583 [statements of area residents may qualify as substantial evidence if they are based on personal observation and do not require technical knowledge].) While it does not require technical knowledge to note that some traffic will be generated, the average person cannot give competent testimony as to how many cars there will be and whether they will affect public safety.
The record does not support Petitioner’s claim. There is no substantial evidence in the record to support a conclusion that there is a need for more than 106 spaces (indeed, for more than 90 spaces). Although one commenter at the city council meeting noted that the density statute would have allowed the City to permit up to 117 units, substantial evidence in the record supports the conclusion that no more than 90 were needed.
Accordingly, there was no basis for the City to find that the parking “concession” would have an “adverse impact … upon public health and safety or the physical environment[.]” The 106 space parking requirement was therefore permitted by the local ordinance and the Density Bonus statute.
E. Fifth Cause of Action: Violation of Clayton Municipal Code and State Housing Law Density Bonus Requirements
Petitioner alleges that the City improperly calculated the number of units that must be available to very low income people in order to qualify for the density bonus. In essence, Petitioner claims that the 10% requirement is not calculated against the “pre-bonus” number of units (60) but the “after-bonus) number, i.e., 81 units. As submitted and approved, the project would have 7 very low income units, which is 11% of 60. Under Government Code section 65915(f)(2), a project providing 11% of its units for very low income people receives a 35% bonus. If Petitioner’s theory is correct, the project must have 9 very low income units to qualify for the 35% bonus.
The statute, however, clearly addresses this issue. In section 69515(f), it provides that “for purposes of this chapter, ‘density bonus’ means a density increase over the otherwise maximum allowable gross residential density[.]” In section 69515(b)(3) it provides that “’total units’… does not include units added by a density bonus awarded pursuant to this section[.]” Thus, the pre-bonus figure of 60 units was properly used in the calculation.
F. Sixth Cause of Action: Violation of Clayton Municipal Code Due to Compatibility and Negative Impacts
Petitioner asserts that the Site Plan for the project is not consistent with the General Plan for a variety of reasons other than (or in addition to), the project density. These issues include that the three-story nature of the Olivia, including its design, materials, colors, size and bulk, will affect privacy and views; that it is out of character and scale with surrounding properties; and that mature trees will be removed, affecting privacy. The basis for this claim is Municipal Code section 17.44, which provides that new construction projects are subject to “Site Plan Review,” “to ensure that the design of all new developments is compatible with Clayton’s character and that the design and location of new development does not impose significant negative impacts on neighboring property owners and/or occupants.” (CMC § 17.44.010.)
The Site Plan requirement sets forth several “factors to be reviewed,” not rigid requirements. (CMC § 17.44.040.) These factors include conformity with the General Plan, preservation of general safety (including traffic),”the reasonable maintenance of the privacy of adjacent property owners and/or occupants,” maintenance of views, and that “the new development, taken as a whole need not be identical, but should be complementary with the adjacent existing structures in terms of material, colors, size, and bulk.” (Id.) The City council found that the project complied.
The City Council made a number of findings addressing these issues. (AR 7-9.) It found that the project was consistent with the General Plan designation of the project site as “Multifamily High Density” and was “complementary to the western design theme of the town Center Specific Plan. (It did exceed the otherwise maximum density, based on application of the Density Bonus statute, which has been discussed previously.) Petitioner does not dispute the existence of the City’s findings, but argues that they are not supported by substantial evidence. Petitioner focuses on two particular issues: the effect of the project on the neighbor’s views, and privacy issues.
The primary privacy issues arise from two factors: whether trees will provide privacy, and whether, due to the height of the project, people in the third-floor of the apartments will be able to see into the residences of the neighbors.
As to the trees, the plan is to retain many mature trees are on south and west, plant other new trees on west side, and include six foot high wood fence at one point near an adjacent structure. The eastern side of most of the project is on Marsh Creek Road and does not present the same privacy concerns as the south and west sides. Petitioner did not argue that there was privacy concern on the north side of the project. Given that replacement trees will not, at least initially, be as tall or wide as removed trees, there may be some visibility that would not exist if all existing trees remained. But the record is unclear as to the extent of the problem. Similarly, it seems likely that there will be some vantage points from the third floor apartments that have a line of sight into an adjoining residence, but the record does not disclose exactly where this would occur. But the ordinance requires only that the City review “the reasonable maintenance of the privacy of adjacent property owners and/or occupants” (CMC § 17.44.040(F)), not that a project be rejected where it will result in any change in privacy. The City reviewed the facts here and reached a decision within the parameters of the ordinance.
As to the effect on views, the site is flat, but is downhill from adjacent property to the west. In part based on that, the City concluded that “the proposed buildings will not obstruct views from these neighboring properties to the west.” The ordinarily applicable building height limit requires that the building not be higher than 35 feet at any point within 50 feet of a single family home. The project meets this requirement except for one four-linear-foot section of one building (6170 High Street) that is 36 feet 9 inches in high. To the extent that this requirement is designed to protect neighbors’ views, this is at least some evidence that views are being protected to the extent ordinarily required. For other adjacent properties and the effects on them, it is true that if a person standing on an adjacent property can see the apartment buildings, then the buildings are blocking the view of whatever is behind them. But nothing in this record indicates that those other properties had a particular view important to their use or enjoyment. Nor does the ordinance require that all views be protected. Again, the City reviewed the facts here and reached a decision within the parameters of the ordinance.
The parties’ joint request for judicial notice of sections of the Clayton Municipal Code is granted.
IV. Conclusion
The petition is denied. Respondent is directed to prepare a judgment.
Hearing will be conducted by zoom: CONTRA COSTA SUPERIOR COURT MARTINEZ, CALIFORNIA DEPARTMENT: 39 HEARING DATE: 10/29/20 - 15 - Join Zoom Meeting https://cc-courts.zoom.us/j/93020032452?pwd=Q2w2RkcvakM5bzREWkdXNDhkdzR1QT09 Meeting ID: 930 2003 2452 Passcode: 105990 One tap mobile +16692192599,,93020032452#,,,,,,0#,,105990# US (San Jose) +16699006833,,93020032452#,,,,,,0#,,105990# US (San Jose) Dial by your location +1 669 219 2599 US (San Jose) +1 669 900 6833 US (San Jose) Meeting ID: 930 2003 2452 Passcode: 105990 Find your local number: https://cc-courts.zoom.us/u/ael94TT2f
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