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HomeMy WebLinkAboutSPJT Minutes 1987-04-20REVISED SRCC/PLANNING COMMISSION MINUTES (Special Joint Workshop) 4/20/87 Page 1 In the Council Chambers of the City of San Rafael, Monday, April 20, 1987 at 5:00 P.M. Special Joint Workshop . .Present: SAN RAFAEL CITY COUNCIL/ SAN RAFAEL PLANNING COMMISSION (Arrived @ Lawrence E. Mulryan, Mayor 5:30 PM) Dorothy L. Breiner, Councilmember Gary R. Frugoli, Councilmember Richard Nave, Councilmember Maynard H. Willms, Councilmember Absent: None Present: Albert J. Boro, Acting Chairman Joyce Rifkind, Vice -Chairman Bob W. Livingston, Commissioner Richard P. O'Brien, Commissioner Suzanne M. Scott, Commissioner Absent: None Also Present: Pamela J. Nicolai, City Manager; Gary T. Ragghianti, City Attorney; Jeanne M. Leoncini, City Clerk; Anne Moore, Planning Director WORKSHOP ON GENERAL PLAN LAW, INCLUDING CASE LAW - File 115 x 10-2 Vice -Mayor Breiner opened the meeting explaining that Mayor Mulryan was delayed at the airport and would be arriving soon. City Manager Nicolai stated the workshop meeting being held today, with two outside attorneys, is to address the concept of the General Plan law and Case law requirements regarding the specificity and content requirements of the General Plan. Attorney Pamela Duffy, Partner with the law firm of Coblentz, Cahen, McCabe, Breyer of San Francisco, specializing in land use and real estate devel- opment was introduced by Ms. Nicolai as the first speaker. Ms. Duffy indicated she would give an overview of the law of the State of California with respect to the General Plan. She informed Council and Planning Commissioners that the plan is called "General Plan" because the statutes require a comprehensive long-term plan for the physical develop- ment of a municipality. There is a certain apparent inconsistency in that state law specifies mandatory elements and issues to be considered. She stated specificity and long-term views often are not compatible with one another and explained that the term "General Plan" is sometimes misleading for the reasons explained, and that many communities use "Comprehensive Plan" or "Master Plan" because "General Plan" tends to imply a lower level of attention to detail than the State requires. She stated the real issue is what level of detail the City is required to get into; how much of the municipal treasury is the City required to expend to achieve that detail and what would be sufficient in the end to meet any test of adequacy. Ms. Duffy indicated that the Legislature of the State of California has specifically directed that each element of the General Plan must be an integrated, internally consistent and compatible statement of policy to accommodate the needs and circumstances of the City's particular community. The judicial decisions on General Plans come from places such as Calaveras and Tuolumne Counties where inadequacies of their General Plans, in part, have been because of lack of funds, expertise and sophisti- cation and the courts have not as yet addressed those issues. She noted they tend to be smaller, more agrarian communities with anticipation of growth that are found to be in default of the State requirements rather than the hard-core urban centers. There have been urban centers who have had problems, particularly Los Angeles and San Diego, but the big land- mark cases tend to come out of these rural communities. SRCC/PLANNING COMMISSION MINUTES (Special Joint Workshop) 4/20/87 Pagel SRCC/PLANNING COMMISSI-A MINUTES (Special Joint W,-._kshop) 4/20/87 Page 2 Ms. Duffy cited a 1965 case whereby the judge described the General Plan as the constitution for all future development in the community. It was not long after this case that the California Legislature enacted the standards the City of San Rafael is faced with in its deliberations. A second court then observed that General Plans had been translated from interesting studies to specific requirements directing, constraining and permitting the future development of a community. There then has been a shift from the big picture to the absolute requirement that the General Plan deal with the growth and future. She mentioned that the General Plan cannot be amended more than four times a year although there are exceptions. She said a Plan should not be amended every time a specific project comes about and should be flexible enough to reflect the public policy decisions on what should be done on growth and development and yet specific State requirements must be addressed. The seven mandatory State General Plan elements are: Land Use; Circulation; Housing; Conservation; Open Space; Noise and Safety. The degree of speci- ficity varies depending upon the degree to which the issue is important or relevant to the community. An example re Noise Element: In a community with major housing development the Noise Element is more relevant and important and should be more detailed especially if next to an airport or a major noise producing industry. A General Plan does not require a parcel by parcel analysis such as zoning does, but requires enough sufficiency and specificity so someone off the street can look at the General Plan and understand what he/she could do with his/her property within certain boundaries. He would, of course, consult with the proper officials to know what limitations or regulations apply. Ms. Duffy stated that should the City adopt a General Plan which limits or restrains the development of housing, particularly if low or moderate income housing is affected, the City is required by State law to make specific findings that must be supported by evidence in the City's records. She added that there is a policy in the State of California in favor of housing, particularly affordable housing, and a public policy discouraging restraints on it without a rational basis for the restraint. Land Use Element: This Element is required to designate the proposed general distribution and general location and extent of the uses of the land for housing, business, industry, open space (including agriculture), natural resources, recreation and enjoyment of scenic beauty, education, public buildings and grounds, solid and liquid waste disposal facilities and other various categories of public and private uses of land. After the City has determined the extent of the uses, a statement is required for the Standards of Population Density and Building Intensity the City recommends for the various land use districts in the community. Population Density does not mean dwelling units per acre. Five dwelling units per acre, 20 units per acre or a 150 units per acre are insufficient because they do not tell how many people will be living there. For example: In San Francisco, dwelling units per acre are used but there is an explan- ation in the Plan about how many people are anticipated to live in those dwelling units per acre. Three dwelling units per acre is estimated based upon the Federal Census to be 10 people; ages of those 10 people are esti- mated based upon the Federal Census also, and they then figure out how many people have cars, are likely to live in town or out of town and the methods contemplated to transport themselves. It is a standard of people per acre. Building Intensity: This is needed to figure out how many services will arise out of this use. For example: The courts have said it is not satis- factory to designate an area commercial; the City has to be able to identify what is likely to result from the use of the land. Ms. Duffy stated there is a radical difference for the community as to how many transportation facilities, how much open space, and Police and Fire services are needed between a 14 -story office building, saying nothing more about it, and a 14 -story office building having x number of persons per thousand feet per floor. You now have a 14,000 square foot building, know approximately how many people will be in the building, how many people per floor the building will generate and the amount of cars generated. SRCC/PLANNING C014MISSION MINUTES (Special Joint Workshop) 4/20/87 Page 2 SRCC/PLANNING COMMISSI.N MINUTES (Special Joint Wu-kshop) 4/20/87 Page 3 The planners can now figure out how many people are coming and going so you know what the "hit" is on municipal services. The courts can tell the City what is not satisfactory and, one is the minimum lot size because it says nothing. Each parcel does not have to be zoned but it must be decided what will be done with that block. Circulation Element: Requires the City to conduct an inventory of the existing and proposed transportation and other circulation aspects to then be correlated with the Land Use Element. This means, if you have a plan for growth, how will it be handled in terms of transportation? If there is a plan for transportation and improvements, how will it work and when? And, if it does not work, what will be done? (Mayor Mulryan arrived at meeting at 5:30 P.M.) Building Intensity for Commercial: The Courts noted that the Statutes state there must be "population density" and "building intensity" standards so both phrases must mean something. "Population density" is in respect to residential uses with "building intensity" applied to other uses where people are not living there and, therefore, one cannot count people per square mile. How can it be carried out? One way is having floor area ratios, height limitations, setback requirements and landscaping require- ments. Another technique is land coverage where you are restricted in the amount of land to be covered, usually in percentage terms. Ms. Duffy then introduced E. Clement Shute, Attorney with Shute, Mihaly & Winberger in San Francisco, who stated that in the 1960's and early 1970's, General Plans were hung on the wall with hardly any attention paid to them. In the 1970's the legislature then started to pass statutes requiring mandatory elements be included in the Plan and also stated that zoning, subdivision approvals and other improvements be consistent with the General Plan. He stated that in the State heirarchy today, the General Plan is the leading regulatory document for land use within any city or county and the subordinate actions, i.e. zoning, subdivisions and use permits are to be consistent with the General Plan. Mr. Shute pointed out there are exceptions in the law such as San Rafael being a Charter City, but in general, these requirements apply to all cities and counties. Starting in the early 1980's some of the cases reached the Appellate Court where some of the statutory language is being interpreted. Mr. Shute noted the process is much like the California Environmental Quality Act (EIR law) where the legislature earlier in the 1970's passed some laws and the courts started interpreting them. Now, there is so much CEQA case law you could know just about what the law is by finding the right case. There are no significant decisions by the California Supreme Court in determining what is an adequate General Plan, therefore more judgment is involved by planners, lawyers and policymakers as to what constitutes an adequate General Plan than what constitutes an adequate Environmental Impact Report. Mr. Shute stated it is important to keep in mind that the State orders a process; there must be seven mandatory elements; the plan must not be amended more than four times per year, but when reading the Statutes you will find that the State does not tell you what has to be in the General Plan and the policies are left up to the elected officials. In meetings with City Attorney Ragghianti and Planning Director Moore, Mr. Shute said he understands there are many concerns about the General Plan. One is, how do you deal with population density or building itensity in the commercial part of the General Plan policies? Second, what are the legal requirements? What would constitute a minimally adequate General Plan in terms of the correlation between the Land Use Element which speci- fies the growth and the kinds of land uses and the Circulation Element? Building Intensity for Commercial: Mr. Shute referred to the Twain -Harte case which said that State law (Government Code Section 65302A) requires that there be building intensity standards for commercial land uses. The court went through a careful statutory analysis in which it said, "We note, that the statutes say there must be population standards and building intensity standards", therefore, those phrases must mean something. SRCC/PLANNING COMMISSION MINUTES (Special Joint Workshop) 4/20/87 Page 3 SRCC/PLANNING COMMISSION MINUTES (Special Joint Workshop) 4/20/87 Page 4 "Population density" is a phrase commonly used and easily calculated in respect to residential use. "Building intensity", as determined by the courts, is a phrase applied to other kinds of uses where you do not have people living and cannot count people per square mile. Floor Area Ratio - is the square footage of a parcel, divided into the square footage of the building to come up with the ratio. So, at .5 you can have a building half as large in square feet as the area of the parcel. Another technique is height limits, setback and landscaping requirements. You can control the building intensity by saying, "Buildings will be no higher than three stories, set back from the street x number of feet, have on-site parking requirements of so many cars per building space or per community" or however decided, so that these various controls which do not directly determine the size of the building, indirectly have the net effect of determining the size of the building. Mr. Shute stated the third technique - Land Coverage - whereby you are restricted in the amount of a parcel that could be covered usually in percentage terms; therefore, you might be able to cover 30, 40 or 50 percent of the parcel and no more. He indicated that is the main control for example, in the Lake Tahoe Basin because of runoff and sedimentation concerns. Some cities use this for control, but not frequently. What are the polices in the Circulation Element? What are the standards against which you will judge whether the Circulation Element is being complied with? Only after this is done, can you come to the question of correlating it with the Land Use Element. Mr. Shute went through a series of examples on a continium from "dead bang certain" that the court would find that a Plan is adequate to "dead bang certain" that the court would find that it is not. Under the "dead bang certain" category, if you have a proposed development, that if built but not mitigated causing the Land Use Element and Circulation Element to be out of kilter, the City would require the traffic improvements to be actually built and operating before allowing the developer to have a Building Permit. By doing this, if the Circulation Element has a certain improvement in it and the Land Use Element is allowing development at a certain rate, you can correlate the two. One could also say traffic improvements are needed but would be subject to a binding contract with a construction contractor that they will be built very shortly, which also need to be done before the Building Permit can be issued. Also, the City could say there is a project going forward which is in accord with the Land Use Element but will cause traffic to fall below Level of Service D at a given number of intersections and require the applicant to pay his fair share of the needed improvements before the permit is granted. If there is a capital improvement program and there is a certain amount of money available with matching money it will be built. You could also take money from developers and put it in a dedicated account so there would be some protection. If a fee for mitigation is accepted and placed in a general city account or mitigation traffic account which is not tied to any traffic improvements program for completing improvement, the courts would question the adequacy of that approach. Mayor Mulryan referred back to the degree of correlation and an option Mr. Shute outlined that would require the development's payment of improve- ments under a plan and supposedly that the City may or may not get State or Federal monies and would allow improvement to go forward without any certainty as to when the City will receive the added money needed to complete what is necessary for that project. Mayor Mulryan asked Mr. Shute where he would place this type of situation in "bullet proofness". Mr. Shute responded by stating to increase the "bullet proofness", it would need to be tied in with a specific capital improvement plan and the fee levied should be related to the anticipated rate of development in that area and have the developer and cumulative amount of development pay as much of the cost as possible if the City cannot predict State or Federal funds, so that funding anticipation is real and not "phony". This approach should be placed somewhere in the upper half of "bullet proofness". Ms. Duffy agreed with Mr. Shute, stating the correlation issue is the big argument, but it is critical as to the level of service the City sets because that is what it has to be correlated to. As an extreme example, SRCC/PLANNING COMMISSION MINUTES (Special Joint Workshop) 4/20/87 Page 4 SRCC/PLANNING COMMISSI-A MINUTES (Special Joint W�__xshop) 4/20/87 Page 5 if Level of Service F is set because you are willing to accept bumper to bumper traffic and double parking because you need the tax base and revenues, it is allowed, but the correlation would have to meet that conditior You can build a certain degree of flexibility into the General Plan by establishing exceptions. For instance, if the City went with Level of Service C as the general rule but there are certain public benefits a particular type of project might bring such as a unique open space opportunity or a local employer providing jobs you want available for your citizens, you can create a Level of Service D in the General Plan. However, you must correlate the Level of Service D and make the findings. In response to a comment by Mayor Mulryan that the City is gearing toward Level of Service D with exceptions, Ms. Duffy indicated that the City is dealing with a General Plan and not a specific project. If you want a Level of Service D and there are certain kinds of enterprises you think are beneficial to the community, the community could decide that for those kinds of uses, a Level of Service E would be acceptable in certain areas but there might be a point where you might run into environmental problems. Planning Commissioner O'Brien inquired about densities on land uses and whether the City should be concerned about persons rather than the amount of units per acre, if it is required to be spelled out in the General Plan itself or is it sufficient to be general in nature. Ms. Duffy responded that in some communities they take the number of per- mits, divide them up and come out with an average number of bedrooms for dwelling units. If you had 9 units per acre, and the General Plan showed how you got your average number of people per average number of units, you might have 28 people as an average per acre, then it would be alright. Mr. Shute indicated that one could use units per acre or dwellings per acre in the General Plan as long as there is a footnote stating what the conversion rate is between that and the number of people. Ms. Duffy added that the City should review the Housing Element every five years and it could be a technique used by the City to indicate the public benefit exception is only available for the next 36 months before it expires. Planning Commissioner Scott referred to the amendements of the Plan being done four times in one year and asked if it meant the whole Plan or each element being amended four times? Also, if there is a condition that every five years they are to review the Plan, would that be considered and amendment? Ms. Duffy responded that it is not an amendment to review the Plan. However, if you find that you want to do something different to the Plan, that then is an amendment. She added if you make 756,000 amendments to the General Plan in one Legislative action, that would be one amendment. Councilmember Nave referred to the level of service item, noting Ms. Duffy and Mr. Shute stated that the Councilmembers are the policy makers, and noted they indicated Level of Service D. He stated there would be no advantage to having a middle D or even to say one cannot have any more building permits unless it is under contract or being built, as this would put the Council in a position of having possible litigation or a situation whereby the policymakers are not allowed to make policy and that the Plan would kick off a moratorium creating a position that the City Council would have to overide the City's staff, Planning Commission and citizens. Therefore, Mr. Nave stated that if Level of Service D is being considered, it should be made as flexible as possible so there will be options and perhaps add some categories so the Plan can move forward. Mr. Shute stated that he would be amazed if Council ended up in a "straight jacket". He noted even in communities with Level of Service D, there are many discretionary decisions to be made and the concern about putting yourselves in a "straight jacket" should not be the case. He recommended reviewing the Ordinance or administrative manual to find what is needed, i.e. the length of the lane measured, turning movements and intersections. He also stated another aspect to this would be that as you are developing the General Plan you have a pretty good feeling for traffic in the community SRCC/PLANNING COMMISSION MINUTES (Special Joint Workshop) 4/20/87 Page 5 SRCC/PLANNING COMMISSION MINUTES (Special Joint Workshop) 4/20/87 Page 6 as to where the bad spots are, adding that the Land Use Element reflects some of the constraints that already exist with the traffic conditions. He indicated that you could specify smaller buildings or a slower rate of development where you know conditions are difficult and will not be solved for a long time. Ms. Duffy stated the Council could add Transportation Management techniques, for example, in a particular area of town or intersection, explain the City was willing during the peak travel hour to accept Level of Service E for certain kinds of uses; however, any office use would also be required to engage a transportation broker, a van pooling system, a shuttle system to coordinate with the City's people who work with ride -sharing, etc. and be required to participate in the funding of additional traffic management studies in a pro -rata fashion, and report back within one year. This would be used in two ways. One, as a standard in the General Plan and two, when there is a specific project before you, you would also be dealing with the environmental analysis of that project. Mayor Mulryan asked how important it is to be consistent between land- owners as to how the City treats the mitigation factors agreed upon. Ms. Duffy replied that as long as the distinction between parcels is reasonably based, for example, such as intersection A being a difficult problem, and someone wants to develop an office facility at that inter- section and you have more exactions designed to mitigate that problem and somewhere else, that really is not a problem, therefore you are not going to exact the same site specific requirements. That is acceptable as long as distinctions are rational and reasonable. Councilmember Frugoli stated some of the problems are not so much with the circulation on streets in San Rafael, but with Highway 101 where other communities cause an impact. Replying to Councilmember Frugoli's concern on impact from other communities, Ms. Duffy stated that reaction from neighboring communities may cause them to restrict their own rates of growth but you do not have to do that. All that needs to be done is to control the streets within the city, and pointed out the freeway is under the jurisdiction of CalTrans. In response to Councilmember Breiner's request on ways to control building intensity, Mr. Shute responded the choices are height, set -back, bulk and floor area restrictions and any combination. The floor area restriction requirement has the advantage of being simple, where you can set the ratio and it can vary in different parts of town. It also is flexible where anyone can go up to .3 or .5. The height, set -back, bulk/parking and land- scaping requirements are harder to figure in terms of building size because they are indirect restrictions. Therefore, it probably would be a disadvantagE to quickly figuring out building intensity, yet there is more flexibility there with varying height limits for aesthetic, design control reasons; varying set -backs for regulatory aesthetic reasons, varying parking requirements for different kinds of uses or different parts of town; so there is no one answer that one is better than the other. You might want to consider them in a combination or use FAR's in one part of town and something else elsewhere. The courts do not allow you to say that an area is commercial and walk away from it because there has to be some way of measuring the intensity of development allowed. In response to Planning Commissioner O'Brien's question on using the word "goal" in place of "standard" to allow flexibility, Mr. Shute responded that flexibility is one thing, but meeting the legal requirements is another and you have to do more than have a "goal" for the Circulation Element. There must be correlation between the Circulation and Land Use Elements. So, if you want that kind of flexibility or goal, then you should vary your standards according to what you want accomplished. Planning Commissioner Boro referred to an earlier comment made by Ms. Duffy whereby she stated that the degree of specificity varies as to the degree the issue is important in your community, and asked her to expand on this. Ms. Duffy responded that it is what the statutes say and added that it is, however, one of the statutory edicts that no court has opined on. She indicated there is another section in the General Plan law enacted SRCC/PLANNING COMMISSION MINUTES (Special Joint Workshop) 4/20/87 Page 6 SRCC/PLANNING COMMISSION MINUTES (Special Joint Workshop) 4/20/87 Page 7 in 1984 which one could argue that it seems to create a sensitivity to budget constraints in local municipalities. She added the law implies that you do not have to be specific with some things but do have to be specific with housing. Responding to Councilmember Frugoli's inquiry if plans should be specific that the floor ratio in an existing building should stay with the new existing plan or with the old plan, because there are some people who want to remodel under the new FAR's but cannot because it is either .5 or .6, Ms. Duffy stated the City could provide flexibility for this by distinquishing between new construction and existing buildings. In response to Planning Commissioner Rifkind's question on Level of Service D becoming a standard in many other communities, and other programs such as Traffic Systems Management being employed, should programs be incor- porated into the Plan as a mandatory program, Mr. Shute stated many com- munities have done this with large commercial or office proposals. For instance, where traffic generation figures would cause Level of Service D to be violated and then say to the developer the only way it can be done is to impose car pooling or staggered hours, otherwise the standard cannot be met, it should be incorporated into the General Plan. If the General Plan states Level of Service D "is it", and the Use or Building Permit approval states it can go beyond because of other things, and unless you show that those other things will bring it back to D, you are violating the General Plan. Councilmember Willms questioned if a certain property was designated for high or medium residential and there are restrictions on the traffic circulation plan and these restrictions would take 20 or 25 years to accomplish, and the landowner wished to build less, could he come back and have a legal basis for a lawsuit? Mr. Shute stated development could be phased or have growth managment type allocations. He referred to the Ramapo case in New York, with an 18 year program for capital improvements which stated the sewer systems and roads would not be completed for 18 years and in order to get permits in the interim there were limited opportunities because the infrastructure was not sufficient, and the court upheld this. The court was not worried about the developer's rights but rather if this was a suburb trying to hide behind growth limitations as a way of keeping out minorities or low income housing. There being no further business, the meeting was adjourned. JEANNE(I .�, ONCINI,C1 Clerk APPROVED THIS DAYOF 1987 MAYOR OF THE CITY OF SAN RAFAEL SRCC/PLANNING COMMISSION MINUTES (Special Joint Workshop) 4/20/87 Page 7