Schocken Hill hillside development(s) appeal

February 3, 2018 by Fred Allebach

Hearing postponed from 2/5 to a future date

To disclose my biases, I support the appeal. I thought something smelled funny when a lot line adjustment for this set of properties was on the consent calendar. Council member Harrington pulled this item and asked questions of staff, then Public Works director Dan Takasugi. The rationale given for the lot line adjustment was to make more efficient the city’s access to a water tank. In retrospect, this appears as the first step in the current development process. The public could not see what was coming, or intended, as it was hidden under the guise of a routine administrative process, a process that laid down groundwork for where we are now. In a way, this initial lot line adjustment can be seen as a pre-piecemealing move, that had future expansion built in.

The hillside projects progressed pretty far before the public became fully aware of them, and once the process had gotten as far as a Planning Commission hearing, the public started to question how these projects would conform with the Hillside Ordinance, how many trees would be cut etc? What was going on here? Some of the questions and rationales of land use even went back to Vallejo times, and raised issue of subdivisions etc.

In response to public questions and input, the projects then went through various iterations, culminating in the Planning Commission’s controversial decision to approve the projects.  One critical bone of contention: exactly what were the Hillside Ordinance’s guidelines for pad size per lot?

An appeal has now been filed concerning the Planning Commission’s approval of three hillside residential developments on Schocken Hill, the immediate hillside backdrop of downtown Sonoma.

Specifically appealed on the hillside issue are the 8/10/17 and 9/14/17 approvals of use permits and CEQA (California Environmental Quality Act) Mitigated Negative Declarations, for the three conjoined projects that first came to light with the previous Consent Calendar lot line adjustment.

The entry to these hillside lots has a common driveway at the corner of Fourth Street East and Brazil Street. The entry is currently protected by barbed wire and a gate.

The appeal challenges the city’s interpretation of both CEQA law, and interpretations of the Hillside Ordinance.

For CEQA, one of the key appeal points is that the three projects should be analyzed and reviewed as one project. A compelling point is made that the process thus far is an effort at piecemealing, or attempting to dilute the cumulative impacts of the whole project by breaking it into smaller discreet units, so as to avoid a full CEQA assessment of such impacts.

Many development projects go through this exact same process. There is a battle to frame and define the cumulative impacts and environmental effects. The definition of a project, or series of projects, and the scope of its environmental impacts, is critical to how it is then analyzed for CEQA purposes. A major CEQA framing objective, for a developer, is to proscribe the impacts to gain a less than significant determination. A few critical concepts are relevant here: what are significant impacts and effects and what constitutes substantial evidence to prove it?

In the case of this series of proposed projects, the collective significant effects outlined in the appeal include: the amount of hillside grading, scope of hillside tree removal, and hillside drainage effects. Impact on the city’s viewscape is both a CEQA and a city Hillside Ordinance issue.

For CEQA, substantial evidence means enough relevant information and reasonable inferences that a fair argument can be made to support a conclusion, even though other conclusions may be reached (CEQA Section 15384 (a)).

Under CEQA Guidelines, Section 15378, the term “project” means the “whole of the action”, which has a potential for resulting in either a direct physical change in the environment, or a reasonably foreseeable indirect physical change in the environment. “Piecemealing”, rather than evaluating the whole of the project in one environmental document, is explicitly forbidden by CEQA. Piecemealing, according to one legal website, is: “Chopping up a project into pieces so as to avoid environmental review of the totality of the project.”

These three projects are reasonably and factually connected, and together constitute the “whole of the action” in terms of being a unified project. A reasonable, substantial evidence case can be made that the three should be reviewed and analyzed in total. For example, the large cut and fill grading is not balanced on each individual lot, as it would be if these were truly three separate projects, but is balanced across all three projects together.

The appellants cite the following facts in support of the piecmealing contention:

1. All parcels are contiguous and share common property lines;
2. All parcels are under common ownership;
3. All parcels and projects have one common access; and
4. Construction activities associated with the three proposed projects have common activities and/or infrastructure, including, but not necessarily limited to grading, excavation, trenching for installation of required improvements (e.g., utilities, driveway, and drainage features), preparation of building pads, construction of the residential buildings, and infrastructure.

Whether or not to find such above-noted conjoined project actions as one action, and/or cumulatively considerable, and/or significant, many times seems to meld political and human considerations with factual and quantifiably objective data. A large amount of consulting, lobbying and lawyering goes into persuading decision makers to take up one CEQA interpretation or another.

At the end of the day, it is the interests of the developer or the appellants (the public) that are at stake. As things typically stand, developers have the money, time and resources to outflank the public and to effectively lobby decision makers to take up their interpretation. A developer’s preferred outcome would be to have impacts seen as less than significant, and therefore to avoid a CEQA EIR, or Environmental Impact Report, which might substantially reduce the scope of a project. Reduced project size and impact is usually what the public and appellants angle for. Many people assume that, in general, developers first propose a huge project, knowing they will not get it, and then appear to have negotiated down to what they wanted all along.

The CEQA dispute process is long, time consuming and involved, and developers with a lot of resources typically wear down the opposition over years of back and forth process.

As for questioning the city’s interpretation of the Hillside Ordinance, the appellants cite as part of their argument, that the projects are inconsistent with the Sonoma Municipal Code Section 19.40.050 Hillside Development. The main points here are:

1. Terrain Alteration: the project proposed on the lower lot should be designed to fit the terrain rather than altering the terrain to fit the development

2. Development patterns that form visually protruding or steeply cut slopes for roads or lots shall be avoided. Each project here is two to three times larger than the hillside guidelines. The viewscape from the city is an important element in the hillside ordinance. There is a built-in conflict of interest here. Hillside property owners all over try to get as high as possible, to get the views. The rest of town has a public viewscape, and collectively tries to limit common hillside views from being overrun by mansions, windows, and rooflines. This is a known development issue across the whole country that pits the municipal hoi polloi against wealthy hillside property owners. For Sonoma, two of the three structures are to be placed high on the south side of Schocken Hill and will be visible from surrounding areas, particularly with the removal of existing trees. There will be higher incentive to remove trees now after the fires. And, once a use permit is granted, there will be no substantial penalty or means of preventing trees from being cut. If the whole purpose of a hillside home is to have a big view, it is reasonable to assume that as many trees as necessary to achieve such a view will be cut. After an acrimonious planning process, it also seems reasonable to assume that if the project(s) is approved, more trees will be cut.

3. Lot Pad Grading: Lot pad grading should be limited to the boundaries of the structure’s foundation, vehicle parking space and a yard area as shown on the approved grading plan. Pads should not exceed 5,000 square feet. All three of the proposed homes greatly exceed the 5,000 square foot standard, each being two to three times that guideline amount.

For grading, Development Standard D. 2. a. i. requires that grading shall be designed to conserve natural topographic features and appearances by minimizing the amount of cut and fill. The amount of grading (6,100 cubic yards of cut and 6,100 cubic yards of fill) associated with the three projects is inconsistent with this development standard, as the amount of grading collectively constitutes the reforming of the natural topography to accommodate the proposed large-scale residential developments.

The appellants also cite questions concerning the total size of the lot pad grading. As per Item E of the Design Guidelines of the Hillside Ordinance, the projects should be limited to lot pad grading, not to exceed 5,000 square feet in total area on each lot.

While Lot Pad Grading is listed as a Design Guideline, the code states: “Within the hillside area and the Hillside Zoning District, the following guidelines should be implemented whenever applicable. As per staff reports: “Lot pad grading should be limited to the boundaries of the structure’s foundation, vehicle parking space and a yard area as shown on the approved grading plan. Pads should not exceed 5,000 square feet in total area.”

At the 9/14/17 Planning Commission hearing at which the final of the three projects was approved, Planning Director Goodison told the commission that it was up to commissioners to interpret the guidelines. They are guidelines, he said. All five city council members who approved the Hillside Ordinance in the past have gone on record and said, in support of the appellants, that the guidelines were intended to mean 5000 square feet total, not an unlimited number of 5000 square foot pads on any one lot. Allowing multiple 5000 square foot pads per lot is, according to the appellants and supporting members of the public, an absurd conclusion given the record and the facts of the Hillside Ordinance guidelines. The whole point is to protect the hillside and viewscape, not to figure ways around the guidelines.

Planning staff reports acknowledge that: “Lot pad grading does not comply with this guideline.” Project(s) staff reports further state: “However, proposed grading is within the range of land disturbance associated with other hillside development in the immediate vicinity.” There is no factual finding, substantiated evidence, or analyses presented that this statement is true, or evidence shown as to how this statement conforms to city code compliance. That a project’s non-compliance is OK merely because other projects do not comply, is an argument that does not appear to rise to the level of substantial evidence.

It is possible the developer will attempt to propose project changes at the appeal hearing, which has been postponed likely due to a letter received from the developer’s lawyer by the city. See the Sun staff report on this. Making project changes on the fly would be improper because such changes have not yet been vetted though established procedure by the Planning Commission. At stake, and appealed, are the proposed projects as they stood as of 8/10/17 and 9/10/17. The appeal is about matters of record, not about changes the developer may propose at the appeal hearing.

One if these changes appears to be a work-around to the Hillside Ordinance’s 5000-square foot pad per lot guideline. The developer is now proposing to put part of the buildings on elevated frames, saying that if the building is not directly on the ground, pad size is then not a consideration. This is clearly a tactic to defeat the intention of the ordinance.

The appellants CEQA argument centers on substantial evidence presented of piecemealing. The “whole of the action” for these three projects, under the provisions of CEQA require that they be analyzed and reviewed collectively, and that they are, collectively, subject to the preparation of an Environmental Impact Report or EIR under CEQA Guidelines Section 15064 (f) (1).

The appellants also assert that the proposed project(s) fails to comply with the preservation of the natural topographic features of the site, and the total size of lot pad grading as required by the provisions of the Sonoma Municipal Code Section 19.40.050 Hillside Development.

With design modifications, unit downsizing, and site size reductions, the cumulative impacts can be reduced to being less than significant impacts for the local physical environment, and for the viewscape from town.

Stay tuned as the appeal hearing process is clarified after the current legal salvo fired by the developer’s lawyer.