TO:
Honorable Mayor and Members of the City Council
THROUGH:
Bruce Moe, City Manager
FROM:
Carrie Tai, AICP, Community Development Director
Talyn Mirzakhanian, Planning Manager
Ted Faturos, Associate Planner
SUBJECT:Title
Consideration of Five Appeals of the Planning Commission’s Decision to Affirm the Community Development Director’s Approval of a Precise Development Plan, Coastal Development Permit, and Tentative Parcel Map for the Development of a 96,217 Square-Foot Multi-Family Residential Building Ranging 37 to 50 Feet in Height and Including 79 Rental Dwelling Units with the Developer Utilizing a Density Bonus Pursuant to State Law, Inclusive of Waivers and Concessions, at 401 Rosecrans Avenue and 3770 Highland Avenue (Continued from the August 16, 2022, City Council Meeting) (Community Development Director Tai).
(Estimated Time: 2 Hrs.)
A) RESUME DELIBERATIONS
B) AFFIRM AND UPHOLD THE DECISION OF THE PLANNING COMMISSION
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Recommended Action
RECOMMENDATION:
Staff recommends that the City Council affirm and uphold the decision of the Planning Commission.
BACKGROUND:
On August 16, 2022, the City Council considered five appeals of the Planning Commission’s decision to affirm the Community Development Director’s approval of a Precise Development Plan and associated entitlements (Coastal Development Permit and Tentative Parcel Map) for a 96,217 square-foot, four-story multi-family residential project (“Project”) containing 79 rental dwelling units, six of which will be set aside for “very low income” households. City staff, the Applicant, and four Appellants made presentations. Over 50 members of the public provided comments at the meeting.
To provide staff and the Applicant with an opportunity to address comments made at the meeting, and citing the late hour, the City Council continued the item to September 6, 2022. Since the August 16, 2022 City Council meeting, the City has continued to receive a large volume of correspondence on the Project, including some asking about the new state Housing Bills adopted by the State Legislature and signed by the Governor on September 28. To avoid repetition, this report focuses on the issues that have garnered the most attention after the August 16, 2022 Council meeting.
SUPPLEMENTAL REPORT:
As more fully quoted in the August 16, 2022 staff report, the state Housing Accountability Act provides that when a proposed housing project complies with all applicable, objective local standards such as a city’s general plan in effect at the time that the application was deemed complete, a city can only disapprove the project or reduce its density if:
(1) The project would have a “specific, adverse impact” defined in the Act as a “significant, quantifiable, direct, and unavoidable impact, based on objective, identified written public health or safety standards, policies, or conditions as they existed on the date the application was deemed complete”; and
(2) “There is no feasible method to satisfactorily mitigate or avoid such adverse impact.”
The Community Development Director determined that the Project complies with all applicable, objective local standards such as the City’s General Plan and applicable zoning (i.e., the City’s Local Coastal Program). In the absence of any specific, adverse impact, the Director approved the Project. The Planning Commission affirmed the Director’s decision. The Commission’s decision has been appealed.
Those opposed to the Project have expressed concerns related to parking, traffic and building height, among other issues. Many members of the public have urged the City to conduct further environmental review pursuant to the California Environmental Quality Act (CEQA), primarily due to the site’s proximity to the Chevron Refinery and concerns about demolition, excavation, and construction. Appellants have claimed that the CEQA exemption for ministerial projects does not apply in this case for a number of reasons, including recently adopted State legislation such as AB 2011. Staff addresses these issues first:
Measures Have Been Taken to Protect City Residents from Potential Environmental Hazards. Terminology in CEQA can be confusing. Pursuant to CEQA, the Project is “exempt” from CEQA environmental review because its review is ministerial. CEQA regulation Section 15268, Ministerial Projects, provides: “Ministerial projects are exempt from the requirements of CEQA. The determination of what is ‘ministerial’ can most appropriately be made by the particular public agency involved based upon its analysis of its own laws, and each public agency should make such determination either as a part of its implementing regulations or on a case-by-case basis.” Back in 2013-15, the City Council adopted its “own laws” by amending the General Plan and applicable zoning regulations - the Local Coastal Program (LCP) - to make density bonus projects “non-discretionary.” The Coastal Commission certified the LCP Amendment in 2015. In reliance on CEQA - Public Resources Code Section 21080 (CEQA statute governing exempt projects) - and “based upon its analysis of its own laws,” the City has determined that the project is ministerial.
Being “exempt” under CEQA means that the City cannot require an Initial Study and Environmental Impact Report (EIR) or Negative Declaration (including Mitigated Negative Declaration). However, being “exempt” from CEQA does not mean there will be inadequate environmental protection to residents, or that the analysis contained in a typical EIR, such as soil assessments or traffic studies, is precluded. For instance, Phase I and Phase II Environmental Site Assessments (ESAs) have been prepared. The ESAs included a subsurface investigation, including nine borings at various locations, 21 soil samples and several soil vapor probes, samples and related analyses. After taking soil samples and reviewing relevant databases, the ESAs concluded: (a) there are no conditions on the site that pose a threat to the environment and/or human health; and (b) “the [Chevron] Refinery is not considered to represent a significant environmental concern to the Site at this time.”
Equally important, the property owner must comply with federal, state, and local environmental and public health regulations prior to and during demolition, excavation, and construction. If, for instance, hazardous waste is uncovered during demolition, excavation, or construction, all work on the project is stopped until such time it is safe to resume without any threat to health or safety. These environmental and public health regulations extend to all projects approved through building permits, of which the City issues several hundred annually. This is also not the first time environmental concerns have been raised regarding the potential redevelopment of a site. For example, the Metlox project was built on a site occupied by Metlox Pottery, which closed in 1989. An article published at the time by the L.A. Times titled, “Poisoned Past: Metal Waste Contaminates Site of Closed Pottery Factory in Manhattan Beach,” stated that officials estimated remediation could take at least two years. Pursuant to federal, state, and local environmental regulations, the developer complied with all necessary environmental protections during demolition, excavation, and construction.
Future Traffic and Parking Impacts Have Been Analyzed. As shown in a memo dated August 16, 2022 (attached), City Traffic Engineer Erik Zandvliet conducted a parking analysis and reviewed a vehicle trip generation report prepared by traffic consulting firm Linscott, Law & Greenspan. Traffic Engineer Zandvliet concludes, based upon calculations, “the applicant will provide sufficient parking supply based on State Code reduced parking requirements for projects with low income housing.” The vehicle trip generation report concludes that the proposed residential use would generate less traffic than a commercial use on the site and that no further study is necessary because the project would not generate more than 50 trips in any peak hour. Traffic Engineer Zandvliet concurred with the findings and conclusions of the report.
New State Housing Bills, including AB 2011, SB 1137 and SB 6, Do Not Affect the City’s Consideration of the Project. Pursuant to State law, a city can apply only the laws in effect at the time the project application is deemed complete, which, for the Project, was January 2022. Accordingly, the City cannot apply laws such as AB 2011 or SB 1137 adopted subsequent to January 2022, to the Project.
In any event, even if the aforementioned laws had been adopted prior to January 2022, neither SB 1137 nor AB 2011 would prohibit housing at the site:
• AB 2011 ‒ AB 2011 requires a State-mandated ministerial review process for certain housing projects. Projects within 3,200 feet of a facility that actively extracts or refines oil or natural gas would not be eligible for the State-mandated ministerial review process. Instead, the project would use the underlying local review process, which in this case is also ministerial pursuant to the City’s General Plan and Local Coastal Program. AB 2011 therefore does not preclude these projects from occurring but rather speaks only to the process by which they are considered.
• SB 1137 ‒ SB 1137 regulates the location of new/re-drilled wells, not where homes can be built. Per SB 1137, the State will not approve new or re-drilled wells within 3,200 feet of sensitive receptors, such as homes. The closest existing wells on the Chevron property and in the City of El Segundo are between 6,000 to 7,000 feet from the proposed housing. Per SB 1137, Chevron (or any other oil operator) will not be able to install any new wells within 3,200 feet of the Project.
As previously mentioned, the Project is not a Senate Bill (SB) 35 project. SB 35 was signed by the Governor on September 29, 2017 and went into effect January 1, 2018. Its procedures and requirements, relating streamlining to housing construction, do not apply to the Project.
The City’s Local Zoning Laws, including its General Plan and Local Coastal Program, Require Ministerial Review for the Project. Pursuant to Manhattan Beach’s local zoning laws, the Project is subject to a Precise Development Plan review. Such ministerial review process requires approval if the project complies with applicable objective provisions of the City’s General Plan, zoning and building ordinances, State and local subdivision requirements, the Manhattan Beach Local Coastal Program, and State density bonus law, in effect at the time the application was deemed complete. The City’s 5th cycle Housing Element and LCP Section A.84.010 require an administrative, non-discretionary Precise Development Plan process for a project that qualifies for a density bonus pursuant to LCP Chapter A.94.
Those in favor of the Project focused on the need for housing stock and cited the potential consequences that the City could face if the project were disapproved. According to Project proponents, the potential consequences include:
• The Housing Accountability Act (“HAA”): The HAA limits a city’s ability to deny or condition housing projects that contain 20 percent lower income or 100 percent moderate/middle income under subdivision (d) of Government Code Section 65589.5. Some have argued that a portion of the HAA ‒ commonly known as the “Builder’s Remedy” ‒ allows developers of affordable housing projects to essentially bypass the zoning code and general plan of cities that fail to substantially comply with the Housing Element Law if certain conditions are met. Proponents of the project have cited this “Builder’s Remedy” as a means of bypassing Manhattan Beach’s zoning code and General Plan to build an even larger housing development on the site “by right” if the proposed Project is denied. Further, proponents claim the City could not require environmental review of an even larger project.
• Legal Suits and Attorney Fees: Affordable housing advocacy groups and/or the property owner could file lawsuits contending that disapproval is inconsistent with the City’s Housing Element and Local Coastal Program and does not comply with State law. In other lawsuits involving housing, the courts have ordered cities to pay the plaintiff’s attorney’s fees and costs. Furthermore, a court could overturn the denial of the project and direct the City to approve the Project.
• State Action: The California Department of Housing and Community Development (HCD) and/or the State Attorney General’s Office might intervene in the City’s local land use process. Recently, the Attorney General’s Office has taken a very active role in opposing disapprovals of housing development projects, especially projects that propose to reserve some or all of the units for low-income households. As indicated by the influx of recent housing legislation, including numerous bills signed by the Governor on September 28, 2022, and the establishment of HCD’s Housing Accountability Unit and the Attorney General’s Housing Strike Force, the State is paying close attention to all housing matters.
• Replacement Projects: If disapproved, alternative projects could include a residential project proposing a 50% density bonus including up to 87 units and taller buildings. Again, the density bonus component would subject the project to ministerial review of a Precise Development Plan with no environmental review required.
Please note that the Project page on the City’s website (www.manhattanbeach.gov/highrose) contains additional information on the Project, including Frequently Asked Questions and responses thereto.
CONCLUSION:
In general, every property is unique, and approval of a project at one site does not mean that the City will be obligated to approve other projects at other sites. In particular, the project site has very unique characteristics. There are very few, if any, sites in the City that share the same characteristics. There is no other site in the same zone with the size or shape characteristics of this site. Manhattan Beach’s local zoning laws (the Local Coastal Program) and its General Plan - which established the ministerial process that applies to this application - have been in effect since 2013, and this is the first project utilizing such local laws.
In light of the absence of any specific, adverse impact, as defined under State housing law, arising from approval of the Project, the Community Development Director determined that the Project complies with all applicable, objective local standards including the City’s General Plan and the City’s Local Coastal Program. The purview of the City Council in its evaluation of this Project is limited to confirming compliance with all objective, applicable local and state regulations at the time the application was deemed complete. Accordingly, and based on the evidence introduced in the record, staff recommends that the City Council affirm and uphold the Planning Commission’s decision.
ATTACHMENTS:
1. Draft Resolution No. 22-0124
2. Staff Report with Attachments (August 16, 2022) (Web-Link Provided)
3. Press Release (Dated September 1, 2022)
4. Public Comments (August 16, 2022, September 6, 2022, and After September 6, 2022) (Web-Link Provided)
5. PowerPoint Presentation