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  Planning Staff and City Attorney Live in Alternate Universe
February 22, 2023

As the design for the PG&E site at Brickyard Cove works its way through the entitlement process, an attorney who is a neighbor of the proposed project took a deep dive into legal issues that City staff, including the incompetent and corrupt city attorney are ignoring. There is a disturbing trend at City Hall for staff to become advocates for and take the side of developers rather than representing the interests of the City and its residents.

Comments on Waivers Demanded for Brickyard Cove Residential Project (PLN21-444) California Density Bonus Law

The Staff Report makes no mention that the developer of the Brickyard Cove Residential (“BCR”) project is requesting any incentives or concessions from the City’s development standards. Rather, the developer relies solely upon waivers of those development standards, purportedly without any discretion by the City in granting them, under California’s density bonus law (Cal. Gov. Code Section 65915, subd. (e)(1)).

The staff report declares that “[u]nder a recent court decision, Bankers Hill 150 v. City of San Diego [74 Cal.App.5th 755-ed.], the City must grant all waivers that enable the project to be built as designed . . . “. The staff report would have us believe that, once a developer meets the requirements of the density bonus law, they have a right to unlimited waivers of any City development standard that would stop them from building their project the way they want to.

This is not the case. The reality is that specific criteria apply to what waivers the developer is entitled to. The holding of Bankers Hill 150 was that the “[developer] was entitled under the Density Bonus Law to a waiver of any development standard that would have the effect of physically precluding the construction of the Project at the permitted density and with the requested incentive . . . “. As there are no requested incentives, the sole issue is what City development standards must be waived in order for the project to be built at the allowed density.

In Bankers Hill 150, supra, the court noted that “the record demonstrates that including the affordable units in the Project was possible only if the building was designed as proposed. In other words, imposing the setback requirement, decreasing the height [of the building-ed.], or redistributing the units would preclude construction of the Project” (74 Cal.App.5th 774). There is no mention in the staff report for the BCR project that the developer alleges that, without each or all of their nine demanded waivers, that the project would be physically precluded from being built. Instead, the staff report simply avers that “[a]n eligible applicant is entitled to an unlimited number of waivers”. (Staff Report, Page 6) In other words, they claim that they are entitled to any and all waivers they want – as a matter of right.

Take, for example, their first listed waiver: “Increased building height from 35 feet up to 86 feet” (Staff Report, Page 6). The staff report cites the developer’s claim that “[w]ithout the proposed grading and import, the developable area is likely to significantly decrease, which may result in the loss [sic] residential units” (Staff Report, Page 5). This is the only sentence in the staff report where the developer speaks about why they need to import 68,000 cubic yards of dirt and cut and redistribute 63,700 cubic yards on the site. Frankly, the use of such terms as “likely” and “may”, after all the time they have spent and the engineering and architectural work they have paid for, appears disingenuous. Given how important the density of the project is to their claim for waivers, they must certainly have determined how the terracing of the site affects it. If the lack of terracing actually did result in the loss of residential units below their allowed density they would be proclaiming that unequivocally, rather than hiding behind ambivalent terms.

Therefore, the design should not include the requested imported fill and only allow redistribution of hillside cut materials to raise the level of the flat area evenly by 2’-4’ and to build on the flat area and on the cut areas of the existing hillside.

California Housing Accountability Act

The staff report cites the California Housing Accountability Act (“HAA”) (Cal. Gov. Code Section 65589.5) for the proposition that “developments granted waivers are considered to meet objective standards” (Staff Report, Page 6). But that statement ignores the fact that the City has the right to impose objective development standards of its own:

(1) Except as provided in subdivision (o), nothing in this section shall be construed to prohibit a local agency from requiring the housing development project to comply with objective, quantifiable, written development standards, conditions, and policies appropriate to, and consistent with, meeting the jurisdiction's share of the regional housing need pursuant to Section 65584. However, the development standards, conditions, and policies shall be applied to facilitate and accommodate development at the density permitted on the site and proposed by the development. (Cal. Gov. Code Section 65589.5, subd. (f)(1))

Again, density is not at issue here. The developer has given no evidence that building its project without increasing the height of the existing grade will not achieve the density allowed them under the density bonus law.

Richmond Municipal Zoning Ordinance

What is at issue in their demand for increased height limits is the project’s compliance with objective, quantifiable provisions of the local zoning ordinance regarding determining grade and measuring height. References are to the Richmond Municipal Code Article XV (Version Dec 27, 2022 (current)) (“RMC”). – Definitions

Grade. The location of the ground surface.

. . . .

Existing Grade. On vacant parcels before any land development activities are undertaken, the elevation of the ground at any point on a lot as shown on the required survey submitted in conjunction with an application for a building permit or grading permit.

Existing grade also may be referred to as natural grade. - Determining Grade.

A. Determining Grade. Grade is the location of the ground surface. For purposes of this article, the grade of a building used to determine building height shall be determined by one or more of the following:

. . . .

2.Existing Grade. The existing elevation of the ground at any point on a lot. Existing grade also may be referred to as natural grade.

. . . . - Measuring Height.

. . . .

A. 1. Measuring Building Height on Sloped Lots. On lots with a grade change of 10 percent or more between the front and rear lot lines, or between the front lot line and its most distant point when there is no rear lot line, building height is measured from the adjacent natural or finished grade, whichever is lower, to the coping of a flat roof or to the deck line of a mansard roof or to the average height of the highest gable of a pitched or hipped roof.

Compliance with Objective Standards

The RM-1 zoning height limit is 35 feet from the existing grade. The first waiver demand is to raise that height limit to 86 feet.

These zoning regulations are objective. There can be no equivocation on what they mean. The HAA states that

(8) Until January 1, 2030, "objective" means involving no personal or subjective judgment by a public official and being uniformly verifiable by reference to an external and uniform benchmark or criterion available and knowable by both the development applicant or proponent and the public official. (Cal. Gov. Code Section 65589.5, subd. (h)(8))

The zoning ordinance definitions of existing grade and height are clearly verifiable and knowable by that standard.

Additionally, the project fails to meet the “reasonable person” test for compliance with the objectively measured height limits of the RM-1 zoning.

(4) For purposes of this section, a housing development project or emergency shelter shall be deemed consistent, compliant, and in conformity with an applicable plan, program, policy, ordinance, standard, requirement, or other similar provision if there is substantial evidence that would allow a reasonable person to conclude that the housing development project or emergency shelter is consistent, compliant, or in conformity. (Cal. Gov. Code Section 65589.5, subd. (f)(4))

Bankers Hill 150 clarifies the above code subdivision and its effect on development standards of local jurisdictions:

"The effect of subdivision (f)(4) is simply to hold local governments to a standard of objectivity in their decisionmaking, such that if a reasonable person could find a housing development in compliance, it will be so deemed. If a municipality wishes to enforce limitations on housing developments, it must promulgate standards that are not so malleable that reasonable minds could differ on whether they are met. In short, the HAA does not wrest control from local governments so much as require them to proceed by way of clear rules adopted in advance, rather than by ad hoc decisions to accept or reject proposed housing." California Renters Legal Advocacy and Education Fund v. City of San Mateo (2021) 68 Cal.App.5th at pp. 850-851; Gov. Code, § 65589.5, subd. (f)(4).) Bankers Hill 150, supra, 74 Cal.App.5th 777.

86 feet is not 35 feet by any objective standard and to any reasonable person. The developer has given no evidence that building its project without increasing the height of the existing grade, especially to the extent requested, would have the effect of physically precluding the construction of the BCR project at the permitted density. And this requirement was known to the developer from the outset.

Bankers Hill 150
, supra, notes that there is some leeway in a project’s conformity with a local agency’s development standards, but not to the point of overturning it.

“ ‘[G]eneral and specific plans attempt to balance a range of competing interests. It follows that it is nearly, if not absolutely, impossible for a project to be in perfect conformity with each and every policy set forth in the applicable plan.... It is enough that the proposed project will be compatible with the objectives, policies, general land uses and programs specified in the applicable plan.’ " ( Holden v. City of San Diego (2019) 43 Cal.App.5th 404, 411-412, 255 Cal.Rptr.3d 873 ( Holden ); see also Save Our
Heritage, supra , 237 Cal.App.4th at p. 186, 187 Cal.Rptr.3d 754.) Bankers Hill 150,
supra, 74 Cal.App.5th 776.

Building per the existing height limitations will allow the project to fit in with its neighbors. Increasing the height of the BRC project such that it overshadows neighboring developments renders it incompatible with the objectives and policies of RM-1 zoning.

Overriding the Compliance Requirement

Counsel for the developer may raise the objection that per the HAA a local agency cannot conditionally approve a housing development project for moderate income households in a manner that that renders the housing development project infeasible for development for the use of moderate-income households, including through the use of design review standards, unless it makes written findings, based upon a preponderance of the evidence in the record, as to one of several categories. ((Cal. Gov. Code Section 65589.5, subd. (d))

This argument is inapplicable to the BCR project. Firstly, the definitions embedded in the HAA specify that housing for moderate income households means that “100 percent of the units shall be sold or rented to persons and families of moderate income as defined in Section 50093 of the Health and Safety

Code, or persons and families of middle income, as defined in Section 65008 of this code” (Cal. Gov. Code Section 65589.5, subd. (h)(3)(B)). This project only sets aside ten precent of the units for moderate income housing. Therefore, it doesn’t qualify for the review of this subdivision of the HAA.

However, even if it did apply to this project, the applicant has not produced any evidence that the project would become infeasible for development unless a waiver of the maximum height limit by over fifty feet – over 150% of the objective standard – is granted. Instead, the developer opines that “the developable area is likely to significantly decrease, which may result in the loss [sic] residential units” (Staff Report, Page 5).

They should have evidence of such a claim. Richmond Municipal Code Section 15.04.602.050 specifies that when a developer who agrees to construct affordable housing applies for a density bonus and incentives or concessions, they have to provide certain documentation. Among them is “[a] description of any proposed waivers of development standards or other zoning requirements and why they are necessary for making the project physically possible”. (Richmond Municipal Code Section 15.04.602.050 (B)(2)(b) – Alternative to Density Bonus and Incentive – Procedures. The staff report acknowledges that “[t]he applicant has applied for density bonus waivers to certain development standards, including building height, setbacks, upper story massing, and open space per RMC Section 15.04.602.050”. (Staff Report, Page 3)

Design Review Findings

As staff points out, the Design Review Board must make recommended findings supported by statements of fact. Revisions are needed to the staff language to make their findings correspond to the analysis above. Changes are set forth in redline.

A. The General Plan and any applicable specific plans;

Staff Statement: Criterion Conditionally Satisfied. The project will be consistent with the land use designation under the General Plan, as well as with applicable General Plan goals and policies with conditions. The project is eligible to obtain "waivers" under the Density Bonus Law. Waivers are modifications of development standards (height, setbacks, open space, floor area, etc.). An eligible applicant is entitled to an unlimited number of waivers a waiver of any development standard that would have the effect of physically precluding the construction of the Project at the permitted density . The applicant's attorney has provided a letter requesting nine waivers from the City's development standards, ranging from a height increase to a decrease in personal storage space. The maximum height waiver, waiver number 1, is not granted. The applicant has not produced any evidence that they would be physically precluded from constructing the project at the permitted density without such a waiver.

The project will follow the development standards of RM-1 zoning except in those few areas for the granted requested waivers.

D. The design review criteria in Section 15.04.805.04. The criteria in this section are only possibly met if the demanded maximum height waiver is not granted. If it is granted then none of the statements in this section are true and the “NO” box should be checked.

B. An 86-foot-tall mountain with trees on top of it and 27-foot-tall retaining walls will overshadow Brickyard Landing and SeaCliff properties. As such, the project design will not take into consideration scale, mass, height, building siting, and privacy in a neighborhood and community context; it will overwhelm or adversely impact adjoining properties; it will not respect prevailing setbacks and the scale and heights of neighboring buildings and how they relate to the street.