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HomeMy WebLinkAbout2024-03-19 - Supplementals 400 South Hope Street, 8th Floor | Los Angeles, CA 90071 | T 213.896.2400 | F 213.896.2450 Holland & Knight LLP | www.hklaw.com Ryan M. Leaderman +1 213-896-2405 Ryan.Leaderman@hklaw.com Genna Yarkin +1 415-743-6990 Genna.Yarkin@hklaw.com Atlanta | Austin | Birmingham | Boston | Century City | Charlotte | Chattanooga | Chicago | Dallas | Denver | Fort Lauderdale Houston | Jacksonville | Los Angeles | Miami | Nashville | Newport Beach | New York | Orlando | Philadelphia Portland | Richmond | San Francisco | Stamford | Tallahassee | Tampa | Tysons | Washington, D.C. | West Palm Beach March 15, 2024 Design Review Committee 10500 Civic Center Drive Rancho Cucamonga, California 91730 Via: City.Clerk@CityofRC.us Re: Foothill Lofts Project (DRC2022-0126) – The Appropriate Scope of Review for Design Review Committee; State Density Bonus Law Incentive Request Dear Committee Members: We want to thank staff for its hard work processing the entitlement application for the Foothill Lofts project (the “Project”).1 On behalf of Foothill Lofts LLC (the “Applicant”), we are excited that the Project is approaching public hearing review in the City of Rancho Cucamonga (the “City”). To this end, it is our understanding that a Design Review Committee (the “DRC”) hearing for the Project will occur next week on March 19, 2024, for which the City published an agenda and staff report yesterday (the “Staff Report”).2 The stated purpose of the DRC is to “discuss and provide direction to an applicant on the design of their project before recommending to the main body of the Planning Commission.”3 The Staff Report directs the DRC to consider two specific design-related staff recommendations: • Sidewalk width (Applicant proposes six to eight foot wide sidewalk, while staff would like a ten foot wide sidewalk) 1 The Project would provide high-quality housing, including five percent very low income housing, in an urban infill location in substantial conformance with the City’s General Plan, inclusive of the Housing Element and Land Use Element, that would further the City’s compliance with its Regional Housing Needs Assessment (“RHNA”) allocation. 2 See https://www.dropbox.com/scl/fi/mhf5k9avd18ao2q3om8ae/DRC-Agenda-Packet-3-19- 24.pdf?rlkey=ugjf7094zod0gw9hkrv6xj470&dl=0. 3 See https://www.cityofrc.us/your-government/city-council-agendas. Design Review Committee March 15, 2024 Page 2 #244838760_v3 • Protected bike lane and adjacent barrier on Foothill Boulevard (Applicant proposes a Class IV five foot wide bike lane with four foot raised median, City would like a Class IV seven foot wide bike lane with four foot raised median) The Staff Report asserts that these recommendations are based on meeting “the minimum requirements outlined in the General Plan.”4 We disagree with this assessment, and wish to remind the City of the Project’s compliance with applicable objective standards and of the mandatorily limited scope of the DRC’s (and later the Planning Commission)’s review of the Project pursuant to the Housing Accountability Act (the “HAA”). We also make a State Density Bonus Law incentive request in the alternative for the second-listed item above. We are providing this letter in advance of the DRC hearing to help inform the Committee of its legally limited scope of review, so that the DRC does not make recommendations that the Planning Commission is legally restricted from applying to the Project. The HAA Legally Limits the Scope of Review On December 1, 2022, the City determined that the Project’s planning application was complete for processing. In compliance with the HAA, the City thereafter sent the Applicant “written documentation identifying the provision or provisions, and an explanation of the reason or reasons [the City] considers the housing development to be inconsistent, not in compliance, or not in conformity” with any “applicable plan, program, policy, ordinance, standard, requirement, or other similar provision”5 within 60 days of determining the application to be complete,6 on January 30, 2023. First, for any requirement that the City fails to provide the-above described documentation, the Project “shall be deemed consistent, compliant, and in conformity” with the requirement.7 Even for requirements for which the City does identify a perceived inconsistency, the HAA is clear that only “applicable, objective general plan, zoning, and subdivision and criteria, including design review standards, in effect at the time the application was deemed complete” can be applied to the Project, unless a specific adverse “public health or safety” impact would occur.8 In order to apply a subjective standard and either disapprove the Project or condition it in any way that would have the effect of lowering its density, the health and safety impacts must be “significant, direct, and unavoidable,” must be based on “objective, identified written public health or safety standards, policies, or conditions,” and there must be no other way to satisfactorily mitigate or avoid the impact.9 4 Staff Report at page 5. 5 Govt. Code Section 65589.5(j)(2)(A). 6 Govt. Code Section 65589.5(j)(2)(A)(ii). 7 Govt. Code Section 65589.5(j)(2)(B). 8 Govt. Code Section 65589.5(j)(1). 9 Govt. Code Section 65589.5(j)(1). Design Review Committee March 15, 2024 Page 3 #244838760_v3 Even where a requirement is objective, it must be applied in a way that is “appropriate to, and consistent with, meeting the jurisdiction's share of the regional housing need” and “shall be applied to facilitate and accommodate development at the density permitted on the site and proposed by the development.”10 In evaluating a project’s consistency with an objective requirement, the project 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 it is consistent.11 Finally, if an applicant makes a State Density Bonus Law request to modify or avoid the applicability of a requirement, such request does “not constitute a valid basis on which to find a proposed housing development is inconsistent” with the requirement.12 The Project Complies With Applicable Objective Standards, and the City Lacks the Ability to Subjectively Condition the Project on the Desired Bike Lane and Sidewalk Widths Sidewalk Width The Project proposes six to eight foot wide sidewalks at varying locations around the Project site. At no point is the Project’s sidewalk less than six feet. We understand that in recent conversations, the City has expressed a desire for ten foot wide sidewalks, and the Staff Report indicates the Project must “construct a 10-foot-wide linear (not meandering) sidewalk offset with the new curb” because of the Project site’s location within the City Corridor – High land use designation.13 The Staff Report asserts that Volume 4, pages 319 and 325 of the General Plan specify a “minimum of 10 feet in width” in this corridor.14 However, the six foot wide sidewalk component of the Project is entirely consistent with the comment the City provided in its January 30, 2023 inconsistency letter, to which the Applicant responded as follows: 10 Govt. Code Section 65589.5(f)(1). 11 Govt. Code Section 65589.5(f)(4). 12 Govt. Code Section 65589.5(j)(3) 13 Staff Report at pages 6-7. 14 Staff Report at page 7. Design Review Committee March 15, 2024 Page 4 #244838760_v3 The Applicant revised the Project to satisfy the identified “inconsistency” by providing the six foot wide sidewalks referenced in the January 30, 2023 inconsistency letter. The second inconsistency letter the City provided on July 24, 2023 indicated that this issue had not been resolved, but did not provide any more specific feedback. Instead, the letter referred the Applicant back to the January 30, 2023 letter. Because the City failed to raise any more specific inconsistency in the HAA-mandated timeline, the Project has legally been deemed consistent. Raising an alleged 10- foot requirement for the first time in the Staff Report is too late under the HAA. Even if the Project were not already legally deemed consistent, we have not been able to locate a mandatory, objective requirement for a ten foot wide sidewalk, and the City has likewise not identified one. The General Plan description of a “pedestrian way” portion of a frontage is “the clear path for pedestrian activity. The width of this space is calibrated to anticipated pedestrian volumes, generally in the range of 6 feet in neighborhoods to allow for comfortable walking side- by-side and up to 10 to 12 feet in urban corridor environments (free of any landscaping, furnishings, and dining) to allow for a combination of walking aimed at a destination and interaction with the features of the corridor.”15 The later descriptions on the Staff Report-cited pages do not reference 12 feet at all, and instead describe the “typical width” as six to eight feet, and eight to ten feet for “highly-active” districts and corridors.16 The above descriptions use subjective terms such as “anticipated pedestrian volumes,” “generally,” “up to,” “typical,” and “highly-active” without any set way of determining what areas would require six feet, and which require eight, ten, or even 12 feet. It’s not just that these are highly subjective standards, there is no evidence whatsoever that this long vacant site with virtually no pedestrian activity along its frontage is anything remotely like a (subjective) highly-active area. 15 General Plan, Volume 4, Chapter 2, page 315. 16 General Plan, Volume 4, Chapter 2, pages 319, 325. Design Review Committee March 15, 2024 Page 5 #244838760_v3 Accordingly, to the extent there is any objective mandatory requirement it is for a six foot minimum, and a reasonable person would conclude the Project complies. If the Project were required to comply by providing two to four feet of extra sidewalk around the perimeter of the Project site, such change would impact the Project’s ability to be built at its proposed and permitted density. There are twenty dwelling units and amenity areas along the ground floor Foothill Boulevard frontage, for example, with several residential levels above the ground floor. If there were an increase in the sidewalk width, this would result in the loss of area necessary for the dwelling units. Accordingly, the City is prohibited from applying any such requirement because it would not “facilitate and accommodate development at the density permitted on the site and proposed by the development.” Finally, the City has not identified any health and safety impacts that would result from some areas of the Project having six foot wide sidewalks, let alone impacts that are “significant, direct, and unavoidable,” based on “objective, identified written public health or safety standards, policies, or conditions,” with no other way to satisfactorily mitigate or avoid the impact. As such, pursuant to the HAA, the City cannot require wider sidewalks. Bike Lane The Project proposes a five foot wide protected bike lane with a four foot wide raised protected separator for a total of nine feet on the Foothill Boulevard frontage. In recent conversations, City staff has expressed a desire for a seven foot wide bike lane plus the four foot raised separator, and the Staff Report asserts that “a cycle track along the project frontage would involve the construction of a 4-foot wide raised median and 7-foot-wide protected bicycle lane.”17 The Staff Report does not cite to any standard for this alleged requirement, let alone an objective one. The City is prohibited from requiring a seven foot wide bike lane for several reasons. First, the City’s January 30, 2023 HAA inconsistency letter did not specifically raise the issue of the bike lane. Rather, it provided the following statement, to which the Applicant responded in its May 23, 2023 resubmission: 17 Staff Report at page 6. Design Review Committee March 15, 2024 Page 6 #244838760_v3 The Applicant provided more specific street cross-sections in its May 23, 2023 resubmission. The City thereafter provided a second inconsistency letter on July 24, 2023 indicating that some issues had been resolved, but that “the Project remains inconsistent with the other standards” including Item 22 from the City’s January 30, 2023 letter. Rather than providing any more specific comment about a bike lane width requirement in this second letter, the City merely referred the Applicant back to the January 30 letter. Because the City did not raise this issue with any specificity in the HAA-required timeframe, the Project has legally been deemed consistent with any applicable bike lane width requirements. Even if the above were not the case, we have not been able to locate an objective, adopted requirement for a seven foot bike lane width. We understand that in recent conversations, the City has similarly been unable to point to one, and as noted above the Staff Report does not cite to one. Rather, to the extent there is any objective requirement, any “reasonable person” would conclude that the Project complies. For the Class IV Separated Bike (Cycle Track) category, the General Plan defines it as providing “delineated right-of-way assigned to bicyclists that have a physical separation between them and a vehicle. This separation can include parked vehicles, bollards, Design Review Committee March 15, 2024 Page 7 #244838760_v3 curbs, or any other physical devise that provides this separation.”18 The General Plan does not specify a required width for the bike lane or the separation feature. Instead, the General Plan refers to the “standards and guidelines promulgated by the National Association of City Transportation Officials (NATCO)”19 which contain the following “recommended” feature for a one-way protected cycle track: “The minimum desired width for a cycle track should be 5 feet. In areas with high bicyclist volume or uphill sections, the minimum desired width should be 7 feet to allow for bicyclists passing each other.”20 The City has not adopted this “recommendation” as a mandatory standard, nor has it made any adopted determination of what qualifies as “high bicyclist volume” or an “uphill section.” Accordingly, to the extent there is any objective and applicable standard, the Project meets it at the “recommended” five foot minimum. Further, even if there were a seven foot objective requirement, if the Project was required to comply by pushing further into the Project site to accommodate it, such change would impact the Project’s ability to be built at its proposed and permitted density for the same reasons addressed in the sidewalk width discussion of this letter. Accordingly, the City is prohibited from applying any such requirement because it would not “facilitate and accommodate development at the density permitted on the site and proposed by the development.” Additionally, the City has not identified any health and safety impact that would result from a five foot wide bike lane, let alone any impact that is “significant, direct, and unavoidable,” based on “objective, identified written public health or safety standards, policies, or conditions,” with no other way to satisfactorily mitigate or avoid. The Applicant has proposed a five foot wide bike lane and four foot wide raised median to provide the desired “separation” to protect the bike lane – see Attachment C to the Staff Report and the below yellow-highlighted labels indicating a six foot wide sidewalk (in some locations it is up to eight feet), five foot wide bike lane, and four foot wide raised median: 18 General Plan Volume 2, Chapter 4, page 169. 19 General Plan Volume 4, Chapter 2, page 357. 20 See http://natco.org/publication/urban-bikeway-design-guide/cycle-tracks/one-way-protected-cycle- tracks/#design. Design Review Committee March 15, 2024 Page 8 #244838760_v3 In the spirit of compromise and in service of a great Project, the Applicant is also willing to provide the seven foot desired bike lane width by reducing the raised median to a two foot width. In no case however, is the Project able to provide the four foot wide median while also providing a seven foot wide bike lane – such requirement would reduce the Project site’s buildable area and thus its density. State Density Bonus Law Incentive Request for a Five Foot Wide Bike Lane Width For all of the above-described reasons, the City is unable to impose a seven foot bike lane width requirement. Without abandoning any of the above arguments, if the City does not accept the five foot bike lane and four foot wide raised median or alternate proposal of a seven foot bike lane and reduced two foot wide raised median, the Applicant now alternatively chooses to identify its thus- far reserved State Density Bonus Law incentive request. By nature of providing at least five percent very low income units, the Project is entitled to one incentive.21 Because redesigning the Project’s entire site plan to accommodate an additional two feet of bike lane would be a costly endeavor that would “result in identifiable and actual cost reductions,” qualifying it for an incentive. Thank you for your attention to this matter. Sincerely yours, HOLLAND & KNIGHT LLP Ryan M. Leaderman Genna Yarkin cc: Sean McPherson - Principal Planner Nick Ghirelli - City Attorney Darrin Olson - Realm Todd Cadwell - Realm Chuck Buquet, Charles Joseph Associates 21 Govt. Code Section 65915(d)(2)(A). Design Review DRC2023-00248March 19, 2024Design Review Committee Who: Paul Frederick What: A request to construct a 14,678 square-foot building for a restaurant/bar with outdoor patio dining; 10 pickle-ball courts; and a 1,771 square-foot building with a coffee bar, restrooms, and storage. Where: Northwest corner of 4th Street and Resort Parkway Entitlements: Design Review DRC2023-00248 Project Description Location 6TH STREET HERMOSA AVELand Use General Plan Zoning Site Vacant Urban Neighborhood The Resort Specific Plan, Planning Area 1A North Multi-Family Residential Urban Neighborhood The Resort Specific Plan, Planning Area 1A South City of Ontario Urban Commercial Ontario Center Specific Plan East Multi-Family Residential Urban Neighborhood The Resort Specific Plan, Planning Area 1A West Office/Business Park 21st Century Employment Mixed Employment 2 (ME2) Looking North from 4th Street Site Plan Primary Structure 4th Street Resort Parkway Landscape Plan Compliance with Development Standards Development Standard Required Proposed Complies? Building Height Max. 60’39’YES Floor Area Max 35,000 16,449 YES Resort Parkway ROW Min. 5’5’YES 4th Street ROW Min. 10’10’YES PA1A Boundary Setback from Cleveland Avenue Min. 10’10’YES Setback from Interior Property Line 0’134’YES Building 1 Elevations(primary building) Top: East – Resort Parkway view Bottom: South – 4th Street view Building 1 Elevations(primary building) Top: North – Interior lot Bottom: West – Adjacent property Building 2 Elevations(accessory building) Top: East – Resort Parkway view Bottom: South – 4th Street view Building 2 Elevations(accessory building) Top: North – Interior lot Bottom: West – Adjacent property Rendering Rendering Discussion Items •Fences and Walls. Staff recommends replacing all proposed solid walls with tubular style fencing, and to remove or relocate fencing from specific areas of the site. •Elevations: Staff is recommending enhancing the elevations to break up massing and potentially incorporate more fenestration, particularly along the east elevation of the primary building which also enhances the building entry and primary façade. •Shade structures. Staff recommends adding shade structures over all the outdoor recreation courts. The applicant is proposing to install shade structures over the recreational courtside seating areas. Original: Combo block wall and tubular fencing along project perimeter Revised: Tubular fencing design Input: Removing/modifying fencing located in front of building entry. Fences & Walls Original: Blank upper story portion of façade. Revised: Window treatment installation. No enhancement to building primary entry. Input: Façade enhancements. East Elevation/Primary Building Entry Original: Partial/No shade structures Revised: Shaded courtside seating areas Input: Courts and/or Seating Areas Shade Structures Recommendation •Recommend Approval with Modifications to the design of the project by incorporating revisions requested by the Committee.