tv [untitled] October 10, 2011 1:00pm-1:30pm PDT
the same effects, records, and testimony. colleagues, any objections to proceeding in this way? let me ask the supervisor farrell resided you have any official comment. why don't we proceed to the hearing? i will have four representatives from the appellants. if you could please set up. as i said before, you have of 210 minutes to present your case for the appeal of the neg de3c. you up to 10 minutes for the appeal of the cu. you can use all of that time or as much as you would like. >> president chiu and supervisors, thank you. i represent the cow hollow association. i will present the talking points regarding the final mitigated-declaration appeal.
then i will continue on to the cu and, with president chiu's permission, ceded the rest of my time to a member of the cow hollow association. the overarching point before us today is about transparency and consistency and processed. the cha is entitled to a full and complete objective analysis under ceqa, rather than go through all of the points that the association has put forward or referred to you in the written materials and discussed what i think are the most important. first, the city violated ceqa by failing to perform required analysis before approving the project.
before approving a project subject to ceqa, the city must consider a final eir or neg dec. the california supreme court has emphasized that ceqa requires environmental review to refer to products first rather than final approval. by lending its political and financial assistance to this project, the city, as a practical matter, has committed itself to the project. in august of 2009, the mayor's office of housing issued a notice of funding availability for $2 million for a housing project. c after. hp as the project sponsor, the recommended an additional $2.4 million to chp outside of the
funding selection process. in july of 2010, chp executed a deed of trust and security agreement with the mayor's office of housing. on july 20, 2010, the city issued a notice -- rather, a certificate of exemption with regard to ceqa. finding that the projects categorically exempt from further ceqa analysis. on that same day, the mayor's office approved the loan. within a few days, it became clear that the planning department was -- had decided to not go forward with the notice of exemption and instead began a study to determine whether the project may have significant effects on the environment.
december 2010, the city loaned chp another $2.2 million. for a total $4.4 million. the money has been lent, the property had been purchased, but it was not until july of this year that the mitigated neg dec became final. what we have here is a fait accompli. there is little room to argue that this project would not go forward or will not go forward. by committing $4.4 million, it has subverted the ceqa of process and deprived the cow hollow association and other neighbors of their due process. president chiu: we have a question from one of our colleagues. if we could roll the clock while
he asks the question. supervisor wiener: thank you for bringing up this argument because it is one that i really do not understand. i wanted to press you on it. you cannot do ceqa until you have enough shape around the project to do a ceqa analysis. is that correct? in terms of the density, the traffic impact, and being able to study those kinds of things. right? >> correct. supervisor wiener: if you decide you want to support transition aged youth housing and this is a great provider and we want to start supporting the project and encouraging development, but it is one to take us some time to actually figure out if it will be 30 units, 70 units, 20 units, 100, is there one to be parking or no parking, and all the other things that go into the final project. your argument that the city
cannot take any of those steps ahead of time to work with the provider to come up with a project without first undergoing ceqa on a project that does not exist because you cannot do ceqa on it, that is what i'm hearing and i am a little bit confused. >> the issue is that the mayor's office of housing loan $4.4 million. \ supervisor wiener: that is often the case. if you loan money to explore what the possibilities are. there are a lot of transactions that happened before you have a product that is far enough along to be able to undergo a ceqa analysis. >> to buy the building? supervisor wiener: that building -- if you got -- if you do not know if anything can be done to
that building, there are so many things that happened before you have a building or a project that is tangible enough to undergo ceqa that it strikes me that the argument you are making, taken to its logical conclusion, would make it impossible for government to engage in any kind of project activities to move a project forward without undergoing ceqa even though you could not undergo ceqa because the details are not finalized. >> i would respectfully disagree. there are many steps that the city could take them a require the expenditure of funds that would not, as a practical matter, require the city to commit itself to the project. but by loaning $4.4 million on a 55-year loan, and allowing the project sponsor to purchase this building, that is a commitment to the project. supervisor wiener: what if the
city did not load any money or a small amount of money, said $100,000, to go through a process and spent 300 hours of staff time working with the provider to determine what kind of price would be appropriate? could someone take the position that that is committing yourself such that you would have to undergo extensive ceqa analysis even though you do not have a fully fleshed out project and appeal that to this board and file a lawsuit afterwards? that is what i'm trying to feel here. where are the limits to your argument about these three- commitments? i do not see where you draw that line. it strikes me as ceqa swallowing up the ability of government to do any kind of planning or partnering before you have a final project ready for presentation. >> our position is that, by loaning $4.4 million so that chp
could purchase the building, it is far beyond any preliminary inquiry or planning stage. it is a de facto commitment to the project prior to ceqa- reviewed approval. supervisor wiener: how do you draw that line of? you're saying one thing, but i could think of 100 difference in areas where someone could take that exact same position. >> it is difficult to discern. but here, it is not. it is so far into the realm of tacit approval. this is $4.4 million we are talking about. a substantial sum of money. supervisor wiener: what if it were $500,000? >> i agree that there are facts out there that would make it more difficult and it would be nice to have a rule. but that is now we are -- that
is not what we are arguing for today. we are arguing for the facts before us under the circumstances. $4.4 million is a commitment to the project. supervisor wiener: because there is no rule, what your argument leads to is the possibility of tying up any project that has any civic participation before you have a ceqa-ready project. then you are pre-committed. you said that, in the paper, you are pre-committed. i can see many different scenarios were this is a problem, but i will let you continue. >> i will use my time to address your point. i believe that if there were more transparent mechanisms to plan and approve these projects, then everyone would have an idea of how the process is supposed to transpire, what the role of the neighborhood is, and what the process is and
there would be consistency in that process. supervisor wiener: that is not ceqa. that has to do with our planning process, distinct from ceqa. >> i will examine those arguments from the conditional use. my next point is that the lead agency did not address the adverse social effects on people caused by the project. as a factor in determining the significance of the project's political changes. if the project would cause overcrowding at a public facility and the overcrowding causes an adverse affect on people, the overcrowding would be regarded as a significant effect. hear, the planning department fails to consider whether an adverse affect on the neighbors caused by overcrowding due to the physical changes to the building is a significant effect. the department bases its analysis on the assumption that
there will be 24 presidents. however, there is no such limitation bound in the application in the analysis under ceqa. my next point is that the mandatory findings of significant cumulative impact analysis, growth inducing impact analysis, were flawed and glossed over. in both the initial study and the final mitigated neg dec failed to take into account the impact in a special use district and increased density as well as performance of open space requirements. next, i would like to address a
piece milling -- pieacemealing nature of the process, in that through this pre approval long process, you have a new way of approving projects in the city. you have grown so much money behind them that it is a done deal. really, what that is is a de facto amendment to the housing element. when you look at the housing element, uc -- you see issues of transparency and neighborhood involvement required. that is just not what happened here. the point is that, what you really have is a de facto
amendment to the housing element. and that requires an eir. moreover, what the -- i will reserve that argument. i have not had an opportunity to -- i know that the department came out with a response to some of these issues we raised today. i have not had an opportunity to review it thoroughly. but i understand that the argument is the city is not committed to the project. and i'd just do not sent see how a $4.4 million loan over a period of 55 years is anything less than a commitment to the project. i would also point out that the notice of exemption, while the
department may believe there is evidence that this is a case that does not require a- declaration, i would like to point out that that flies in the face that this is a the mitigated neg dec. it is the notice of exemption that is referred to as the -- it has no practical implication or it does not shed any light on the necessity of the mitigated neg dec. unless the supervisors have any questions, i will move on to highlight the arguments in the conditional use. first, the commission improperly authorized the conditional use before the board of supervisors.
a conditional use permit allows the use permitted by the zoning regulations, but because of possibilities that permitted use could be incompatible with applicable zoning, a special permit is required. the project is not permitted under current zoning legislation. planning commission found the project is consistent with the planning code based on the proposed ordinance which is not current laws. the fact is more convenient with the city to do a conditional use at the same time as ceqa does not mean that they can ignore the procedure. the conditional use, as it stands, assumes it is already passed and that is not the case. nothing in the conditional use authorization makes a contingent upon an sud. next, the city's special use district ordinance is improper methods to propagate california
codes based on property requirements. density bonus requirements require the city to adopt an ordinance that specifies how compliance with the density bonus law will be implemented. the city has not adopted an ordinance. if it did, it would go to some of supervisor wiener's concerns about how the process should proceed to continue and approved low-income housing. instead, the city passes and ad hoc ordinance under special use district ordinance to allow density bonuses. arguably, the city must pass an sud to comply with the density bonus requirements of state law.
the city is in an untenable situation. if the city did pass an ordinance, that would comprehensively deal with the density bonus requirements, you would have a consistent and transparent application of the regulation. hear, there it -- here, there is no transparency, it is not consistent, and there is no way for the neighbors to understand and participate in a process because this ad hoc basis is opaque to the average resident. next, the commission did not address the inherent conflict between permanent housing and housing for transitional-aged youths.
the project is designed to be affordable housing for youth between 18-24 years of age. there is a fundamental conflict between housing design for youth up to a particular age and permanent housing with eviction control. again, there is a disconnect between the project as presented to the community and to the potential reality. the risk is that once the project is fully occupied, current residents will not cycle out to make room for additional residents, but after several years, the project could be at full capacity with only residents over the age of 24. the sud does not require tay housing, but the application, the legislation, the entire process is presented as that.
this is an issue that should be addressed in order to create a consistent or part of a consistent, uniformed approach to this development of this type of housing. next, the commission could not have a rational decision on the application because the project sponsor is consistently unclear about the population that the project would serve. the project sponsor has represented that the project will support housing and for the conditioning of the foster care. this is described as any use
between 18 and 24. the planning commission described the residence as transitional age students and a maximum of 50% of median income. the motion adopting conditional use only mentions foster use twice. -- youth twice. this inconsistency and the reality has disturbing implications not only for this project but as as a precedent for future projects. next, the size and density project. this is insufficient as so far
as it will try to pack too many kids into two small units. this is the immensely important and to make work, the project sponsor needs a certain number of kids. to compare this to booker t., this is not even close. this is massively expensive. this is basically at the feet of the people that have to live there. i would like to point out that there are several aspects of the housing element.
statutory speak in set of regulations to carry out the goal of increasing housing in the city. that will conclude my presentation. if anyone has any questions. >> any questions for the appellant? ok, thank you very much. of like to ask if there are members of the public felt like to support either or both of the appeals. what i would like to suggest is that if we could line up. i know that there is an overflow room and individuals that was to
speak on behalf of the appellants. we will bring folks in as we have capacity. >> i have a resident of the neighborhood. i am talking about the rule and holding of the california supreme court. the rule is not unclear. see "procedures are violated when there is a project completed prior to documents. this was approved before the completion of the environmental documents. this project was approved on july 19th, 2010, when the mayor approved the loan to enable the
purchase of the property. if that was not enough, by the end of the year, the city has invested in its project that it approved $4,416,508. each dollar is a reason. the city's approval of this project ignores the bright line rule of the supreme court case which the city must conform itself to. there is evidence this could have an effect on the environment. these are needed to exempt the
project. this causes overcrowding. this might be a significant affect. the lead agency has been prevented with many for -- their arguments. >> thank you very much. thank you very much. >> we have a lot of speakers and we have several hearings. let's hear from the next speaker. >> our company built a mixed use project.
we completed this in 2010. we were informed of the housing proposal by a neighbor. we were required by law to visit a potential condominium of hours. we have lost numerous sales because the mayor is speaking with the project sponsors. objections include it density, no drug free policy, insufficient staffing. findings must be made per paragraph two of the findings. this is for improvements with the potential development.