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HomeMy WebLinkAbout04-28-2009 PC Minutes1s 1 ?, 1N Planning Commission Minutes Tuesday, April 28, ?009 CALL TO ORDER/ROLL CALL A regular meeting of the City of Dublin Planning Commissicn was held on Tuesday, April 28, 2009, in the City Council Chambers located at 100 Civic Plaza. Chair Wehrenberg called the meeting to order at 7:00p.m. Present: Chair Wehrenberg; Vice Chair King; Commissioners Brown, Schaub and Swalwell; Jeri Ram, Community Development Director; Jeff Baker, Acting Planning Manager; Erica Fraser, Senior Planner; Martha Aja, Assistant Planner; Mike Porto, Consulting Planner; Kit Faubion, City Attorney; and Debra LeClair, Recording Secretary. Absent: NONE ADDITIONS OR REVISIONS TO THE AGENDA - NONE MINUTES OF PREVIOUS MEETINGS - On a motion by Cm. Swalwell and seconded by Cm. Brown the minutes of the April 14, 2009 meeting were approved with revisions. ORAL COMMUNICATIONS - NONE CONSENT CALENDAR - NONE WRITTEN COMMUNICATIONS - NONE PUBLIC HEARINGS - 8.1 PA 07-028 Arroyo Vista (Legislative Action) - Environmental Impact Report, General Plan Amendment, Stage 1/Stage 2 Planned Development Rezone, Vesting Tentative Tract Map and Site Development Review. Erica Fraser, Senior Planner presented the project as outlined in the Staff Report. Chair Wehrenberg asked Ms. Fraser to point out where the bus stop will be located. Ms. Fraser stated the location had not been finalized as yet but they will continue to work with WHEELS to finalize the location. She stated it is anticipated to be located with close access to the center of the site. Cm. Schaub asked how many people will live in the project. Ms. Fraser answered they did not know at this point. Chair Wehrenberg asked Ms. Fraser to point out, on the site plan, where access to the trails will be located. Aanning Commission 73 4prif28, 2009 Wsgufar Meeting Ms. Fraser pointed out the access points on the site plan. She continued that there are sidewalks, walkways and connections between the housing types throughout the site and connections to the community building which can be used by everyone. Chair Wehrenberg asked if a fence is installed will there be a gate for access to the trail. Ms. Fraser answered there will be a gate between the housing project and the trail. Cm. Schaub asked if there will be covered parking and stated he found no examples of what the covered parking will look like. Ms. Fraser stated there are drawings in the project package. Cm. Schaub agreed to continue to look in the project package for the drawing of the covered par-king area. Cm. Schaub felt that Page 48 of the project plans did not giN e him the information he wanted because it was a line drawing. He felt the buildings are attractive and that it would be unfortunate to have a metal shed type of carport and ruin the effect of the building design. Ms. Fraser suggested the Commission talk to the architect. Chair Wehrenberg pointed out that the materials for the covered parking are called out Page 48. Cm. Schaub asked Ms. Fraser to review parking in the project:. He stated that in his notes from the earlier Study Session, 74 on-street parking spaces were not part of the parking count. He asked how many parking spaces are available on the site. Ms. Fraser answered that the on-street parking spaces are not counted towards the provision for parking. Cm. Schaub asked why on-street parking was added in for a previous commercial project (C1ubSport) but not this project. Jeff Baker, Acting Planning Manager, answered that typically, with a residential project, the City would only count off-street parking. He continued that any on-street parking would be in addition to the off-street parking. Cm. Schaub felt the on-street parking was a significant amount which would make the project parking count above the requirement. Ms. Fraser added that Staff does not count the on-street parking because they are on a public street and the spaces do not belong to the project. Cm. Schaub was still concerned that the on-street parking was included in the C1ubSport project and is not being included with this project. Chair Wehrenberg pointed out that the C1ubSport project is not in a qualified residential area. Manning Commission 74 4pri[28, 2009 Wrgular 91feeting Cm. King felt that the on-street parking should be taken into consideration and asked if the parking will be adequate and should include the on-street parking. Ms. Fraser felt that on-street parking could be taken into consideration as provided on the site as a total. She stated that there is overflow parking. Chair Wehrenberg asked Ms. Fraser to explain the City's parking ratios and asked if they are in line with other cities in the area. Ms. Fraser answered that according to the Dublin Municipal (-ode (DMC), the required number of stalls is less than what is provided for the affordable family and senior apartments but as far as what Eden typically provides the parking total is higher. Ms. Fraser stated that for example, Wicklow Square Apartments are senior, affordable units and the parking ratio is lower than what is required by the DMC. She continued that Eden Housing has many affordable projects in the Bay Area and the parking provided is usually less thin what is being provided in this project and they have not had parking issues. Cm. King asked for the definition of "acceptable level of service" and who determines it. Ms. Fraser answered that Chris Kinsel of TJKM, Inc. is at the meeting and helped write the traffic study therefore he should be able to answer the question. Cm. Swalwell asked how many affordable units are at the Groves. Mr. Baker answered that there are approximately 300 units. Cm. Swalwell asked if there were any public safety concerns during scoping meeting for this project. Ms. Fraser stated that she had heard from some residents Nvho stated they did want a safer community. A lot of the concerns had been about the existing; complex. She continued that she had not heard any other concerns. She stated that traffic was one safety concern but there will be a traffic light, and safe sidewalks. Cm. Swalwell asked if there had been an opinion from the architect or police services regarding whether a covered carport is safer than an enclosed garage as far as being a victim of a crime. Ms. Fraser answered that police had reviewed the project and made no reference other than their standard conditions of approval. She stated that the carport is open, and the project must meet a minimum lighting standard. She felt it depends on one's own perception of safety whether a carport is safer than an enclosed garage. Chair Wehrenberg stated that the Police look for lighting when reviewing a project. Planning Commission 75 Apri(28, 2009 fgu(ar Meeting Ms. Fraser added that the project must provide one foot candle of lighting for adequate lighting throughout the project. Mr. Baker added that both Police and Public Works reviewed the lighting and photometrics as part of the Building plan check process to ensure that it meets safety standards. Cm. Brown asked what type of outside play areas will be included. Ms. Fraser answered there will be several tot lots for the younger children and also passive, open recreation areas. Cm. King asked if the grassy areas are large enough to play baseball. Ms. Fraser felt they are not wide enough for baseball but are long. She continued that at the community building there will also be activities and services for children and seniors. Mr. Brown asked if there will be a basketball court. Ms. Fraser answered there will be none on the site. Cm. Swalwell stated that at The Groves there is a police substation with an officer assigned to the area. He asked if there would be a similar situation at this project. Ms. Fraser answered that there would be no difference than any other residential project. She continued that the Police Services reviewed the project and felt that a substation is not needed. A substation was needed on the east due to the distance from the existing Police Station but not at this project because of its close proximity to City Hall and the Police Station. Cm. King asked Ms. Fraser to show where the intersection with Amador Valley Blvd. will be in relation to the Camp Parks entrance. Ms. Fraser stated that the City does not know, at this time, where the Camp Parks entrance will be relocated. Chair Wehrenberg asked Ms. Fraser to reconfirm that there are elevators in the senior housing. Ms. Fraser answered yes, and mentioned that the Applicant can confirm the elevators, their experience with parking and the different recreation programs they provide. Chair Wehrenberg asked if the day care and community building is open to everyone not just the residents. Ms. Fraser answered that the community building is for the residents of the development, but the day care is open to everyone. Cm. Swalwell asked if the residents will have preference for placement. Planning Commission 76 4pri[28, 2009 Tsgular 9Keeting Ms. Fraser stated there is a childcare center now and it would be run by the same organization and she would allow the Applicant to answer the question. Chair Wehrenberg opened the public hearing. Linda Mandolin, Eden Housing representative, spoke in favor of the project. She spoke regarding Eden Housing and their 40 years of experience, also their programs for their residents including: resident services company with on-site programs such as: after school programs for children and technology program for teens, transportation classes for seniors, etc. She stated that they also work with seniors on social and health issues. She stated that their parking ratio of .6 to 1 is all that is needed for the senior community and they find that works. She stated that in the family areas the parking ratio is at 1.7 to 1 and that most families cant afford more than one car. Cm. King asked how Eden Housing feels about how the numbers of cars per household increases as the young families grow and the teens also have cars. Ms. Mandolini stated that a lot of families cannot afford mare than one car. She stated the parking ratio is based on bedrooms per unit. She stated they police the parking very seriously. She felt their parking ratios are very successful. She stated they have not had a problem with parking and also mentioned the close proximity to public transportation in this project. She also addressed the security issue; she stated that there are 3 management units on-site with Eden staff people living there. She stated Eden works with residents to form neighborhood watch groups. She continued that they are very aggressive about rules and ensuring the quiet enjoyment for all residents. Cm. Swalwell asked if there is an eviction process for people/ residents that commit crimes. He stated that there are recent laws passed that allow eviction for domestic violence or dealing drugs on the premises allowing public and affordable housing agencies to evict residents for these offenses. Ms. Mandolin stated Eden has a zero tolerance for drugs and will evict with the proper evidence. She stated that if someone is caught dealing drugs on-site they will move with in the law to evict and work closely with the Police Dept. Ms. Swalwell stated that his questions are not because he associates crime with affordable housing. He felt there is a misperception that affordable housing brings problems and some of the residents have concerns about crime. He felt that Eden was doing a lot to address those concerns. Ms. Mandolini stated that they expect a lot of the Arroyo Vista residents to return to the community and they are already upstanding members of the community so there should be no problems. Cm. Brown asked if the senior housing is independent living or assisted living. fanning Commission 77 4prif28, 2009 WpguGrr Meeting Ms. Mandolini answered the senior housing is independent living with individual apartments. Cm. Brown asked if there are one and two bedroom units. Ms. Mandolini answered only one bedroom apartments are allowed due to public financing regulations. She continued that they provide common areas for the residents to enjoy a larger space. Cm. Swalwell asked if the residents have preference for the day care center. Ms. Mandolin answered that they like for the residents to have preference and if all spots are not taken by the affordable and market rate units within the project then it is opened up to the broader community. She stated that usually approximately half of the child care slots go to residents. She stated that the new day care center will be substantially nicer than the existing one. She continued that they have worked with Kidango in the past and feels it will be a good center when completed. Cm. Swalwell asked, since Eden is a non-profit organization, where will the profits from the market rate units go. Ms. Mandolini answered that Eden will not own the market rate units. She stated that the owner is Citation Homes and they will sell the units for profit. The developments that Eden builds are 100% affordable to families that are at or belong 50% of the median income. She continued that the Citation Homes is acquiring the land and that acquisition of the land is providing the subsidy to help build the affordable housing units. Cm. Swalwell asked if Citation would also be managing the units as well as constructing them. Ms. Mandolin answered that Citation will hopefully sell the units to homebuyers but would not manage them. Charles McKeag, Citation Homes, spoke in favor of the project. He gave a brief overview of Citation Homes and their experience. He stated he is here to answer questions about the market rate units of the project but wanted to stress that if there was any concern regarding the quality of construction or management expertise and quality of services of Eden Housing. He felt that the current residents of Arroyo Vista will be happy to return to a community owned and managed by Eden. Chair Wehrenberg asked if Citation has a timeline for starting the project. Mr. McKeag answered that it will depend on where they are in the market place, and with the market being severely depressed it will be difficult to say when the implementation would begin. He continued that there are many steps that need to be completed before implementation. Pfanning Commission 78 4prif28, 2009 fgufarWeeting Ms. Mandolini added that Eden is replacing existing affordable housing on the site and is committed to that and under HUD rules; the affordable housing must be built first. Mr. McKeag stated that in the design of the project the civil engineers and consultants were asked to craft a phasing plan that will enable the affordable housing component to move ahead and stand alone allowing the Citation project to catch up as the market catches up. Cm. Schaub asked how Citation will phase the project so that the affordable homes can be built, the current project torn down and the infrastructure installed.. He asked what will trigger the next phase of the project. Mr. McKeag answered that when designing the site plan they focused on the combination of practical implementation and income integration concerns with respect to the varying income levels of the community. He stated that the affordable component that Eden will build, own and manage is in the center of the site. He continued that the market rate component will be located on the southern end, and on the far north end is the second market rate component. He stated that the infrastructure has been designed to enable the Eden portion to be built in it's entirety without any of the market rate housing or any of the nlfrastructure that would serve the market rate housing needing to be built. Cm. Schaub asked if that included the streets. Mr. McKeag answered that it would include the portion of the street that is necessary to serve the Eden component. He stated the project was designed to make sure it was phased in this way. Ms. Fraser stated that this is not a normal development where they get approvals from the City and then start building. This project requires many steps before the project can be built. HUD still has to approve disposition of the site for the City to sell the property to Eden and Citation. She continued that until that happens the project cannot move forward. She stated that Eden needs to secure their funding sources and for that they must ]lave approval from the City. She stated that there are residents still living on-site and there is no relocation plan in effect. Cm. Swalwell asked if the residents will be given 180 day notice to vacate. Ms. Fraser answered that any relocation will be done as a part of an approved relocation plan by the Dublin Housing Authority. Mr. McKeag mentioned that the Dublin Housing Authority is solely responsible for the relocation plan for the residents. Chair Wehrenberg asked the h•affic consultant to come to the podium to answer questions regarding the traffic study. Chris Kinzel, TJKM Transportation Consultants, who was retained by the City to do the traffic study for Arroyo Vista came to the podium to answer questions. Winning Commission 79 4pri[28, 2009 Wfgular Meeting Cm. King stated that Page 5 of the Staff Report indicates there are major intersections that will be left with an unacceptable level of service and the mitigation measures cannot reduce them to a less than significant level. Mr. Kinzel stated that at build-out conditions there are two intersections that were found to have unacceptable levels of service. He stated that "unacceptable" is defined by the City of Dublin General Plan. Cm. King asked if these would be temporary traffic impacts or permanent. Mr. Kinzel stated that each intersection is different. The intersection of Amador Valley Blvd. and Dougherty Road is unacceptable primarily because of future traffic. It is assumed that the Camp Parks gate will be located at that position and that the City will be unable to require all the mitigation that would be needed to achieve acceptable levels of service. Cm. King asked where the Camp Parks entrance will be located. Mr. Kinzel answered he thought it would be at the fourth leg of Amador Valley Blvd and Dougherty Road intersection to the east, but that was still to be determined. Cm. King asked if it is correct that the impacts indentified in the Staff Report will be permanent not temporary. Mr. Kinzel answered that the City cannot require the Federal government to install the mitigation measures. Cm. King asked if the traffic impacts at the intersections of Dublin Blvd and Dougherty Road and Amador Valley Blvd and Dougherty Road will be permanent traffic impacts because the Staff Report indicates that they cannot be mitigated to an acceptable level of service. Kit Faubion, City Attorney stated that the information in the Staff Report is taken from the Draft EIR. The Draft EIR tells the City what is a significant impact or not and in order to do that establishes a standard that would be applied to what is acceptable and what is not. She continued that "acceptable" is what the City says it is in the Draft EIR. She stated that acceptable performance is based on the general plan standard. In other instances there are no identifiable standards and the City has to identify what is acceptable. She continued that the City uses the Congestion Management Agency (CMA) standard that will be the measure of what is acceptable or not. She mentioned the two intersections are temporary impacts because the improvement to mitigate that impact will not be in place by 2015. The other two impacts are considered permanent impacts and the EIR explains why they cant be mitigated further. Cm. King asked if those intersections will be at an acceptable level of service by anyone's definition. Aanning Commission 80 Aptil28, 2009 1fgufar Meeting Ms. Fraser stated that Dublin and Dougherty has continued to operate at LOS-F which is unacceptable to the City and there has been significant and overriding considerations adopted in many projects because of that intersection. She stated the intersection cannot be mitigated to an acceptable level of service and to mitigate it would cause safety problems. Cm. King asked if the Planning Commission decides the overriding considerations. Ms. Fraser stated that the City Council makes the final do_ision; the Planning Commission makes a recommendation only. She stated that if the City Council certifies the EIR they are also adopting the significant and overriding considerations if feel that the project had merit and reasons to continue. Cm. King asked whose definition is the City using for acceptable levels of service. Ms. Faubion stated that in the Draft EIR (on page 99 and 100) there are standards of significance which establishes what is and is not acceptable, the standards of significance in the traffic section will indicate what is the acceptable level of service. Cm. Schaub felt that the project doesn't have much effect on the Dublin and Dougherty intersection and that most of the traffic is controlled by San Ramon. He stated that even though the intersection is in the EIR the project doesn't affect it. Cm. Fraser stated that it is significant but this assumes build out at Camp Parks and everything else that's been planned for. Arroyo Vista represents a very small portion of the overall trips that go through Dublin and Dougherty. Cm. Schaub felt that this intersection will be the same in every project. Cm. King asked if the traffic calculations anticipate additional traffic from San Ramon and areas north. Mr. Kinzel answered yes. Ms. Faubion commented that this EIR did not use the new methodology. Chair Wehrenberg agreed that any change to the analysis could cause confusion. Paula Krugmeier, B.A.R. Architects, spoke in favor of the project. B.A.R. Architects served as the master planners for the entire site. She stated they tried to integrate the market rate and affordable housing in the project and placed the unique elements in the center of the site creating a village center. They linked the elements together with tree lined streets with mature redwood trees. She stated that each of the family units have their own front door entrance with no common stairs which minimizes security issues. Ms. Krugmeier continued that the parking in the family affordable housing is on grade and the market rate housing parking is in garages. She stated if they create a simple horizontal plane Planning Commission 81 4prif28, 2009 fgufar Meeting for the carport with two posts this type of structure can be hidden with landscaping. She felt that in the drawing it is not very attractive but when the landscaping grows up the line of the carport is minimized. Cm. Schaub asked if the roofs will be nicely articulated or flat asphalt. Ms. Krugmeier answered they responded to the City's design comment with a 50 year shingle roof. Cm. Brown asked Ms. Krugmeier to point out which streets have on-street parking and also asked if they can accommodate parking on both sides of the street. Ms. Krugmeier pointed out the on-street parking spaces and stated that they tried to make it look like a neighborhood with two lanes of traffic in either direction with parallel parking on either side. Rhenea Keyes, resident of Arroyo Vista and president of the Arroyo Vista Tenants Association and also one of the plaintiffs in a pending lawsuit involving; the disposition of Arroyo Vista, urged the Planning Commission to reject Staff's recommendation and to postpone any further action on the project in the absence of HUD approval of DHA s application for disposition and full compliance with CEQA requirements. WRITTEN STATEMENT ATTACHED TO THE MINUTES. Cm. King felt that Ms. Keyes' concerns were mostly procedural issues and asked if she had any substantive objections to the project. Ms. Keyes answered that personally she felt there was "long tenancy" and design problems. She mentioned that there was $368,000 of stimulus money offered to the Dublin Housing Authority for modifications to Arroyo Vista which was turned down due to the fact that they said there were no "shovel ready" projects. She disagreed with this statement. She felt that the DHA was premature in rejecting the stimulus funds. She felt chat if the DHA began working on some capital projects it would be a good start in redeveloping Arroyo Vista as opposed to prematurely demolishing it. Chair Wehrenberg stated that there were extensive studies done on the Arroyo Vista project and felt that spending money on a housing project with continual problems was addressed by the City in these studies and that is the reason the City is moving forward with this project. Ms. Faubion responded to Ms. Keyes comment that there was a reference in her statement to agenda materials not being available on the City's website. She stated that the public hearing notice specifically mentions that materials may be available later but that they would be available at City hall on Friday before the meeting. She stated that tonight's meeting was properly posted, the agenda was posted and the materials were available at Dublin City hall on Friday. PCanning Commission 82 4pri[28 2009 fgufar 9deeting Ms. Faubion continued to respond to Ms. Keyes' comments regarding her recommendation that the EIR not be certified; she stated that the City provided a Draft EIR that provides an analysis of the project consistent with CEQA's intent that when a decision maker makes decisions they know the environmental consequences of a project and that the public knows the same. She continued that the City believes that the EIR has done that and the responses to the comments adequately identify what the CEQA issues were and responded in an appropriate manner. The speakers comments addressed social issues and CEQA is concerned with physical, environmental issues. She continued that the project is more than replacing the affordable housing that would be lost when the project is developed. Ms. Faubion continued to respond to Ms. Keyes' comments regarding the other approvals not being made until the HUD approval; it is very common for Dublin projects to require approvals from other agencies and for changes to the initial project be made in order to satisfy those agencies. Chair Wehrenberg closed the public hearing. Cm. Schaub stated he likes the project and felt it was extremely complex but a land use issue not a social issue. He felt it is a good project and that a lot of people will want to live there. He agreed that the parking will be adequate with the on-street parking. He felt that the circulation issues are the same ones that the City has dealt with previou ply. He stated he is in support of the project. Cm. King felt the project by itself is a nicely designed neighborhood; he likes the architecture, the recreational facilities and senior housing. However, from a land use point of view he has concerns regarding traffic flow. He reviewed the material in the EIR but was still not satisfied that he understood what an acceptable level of service is. He felt he could overlook some vagueness in the EIR but the actual traffic flow and impacts he was not satisfied with. He stated he would like additional information regarding future development in San Ramon and how will that affect the traffic in Dublin. He found the net affect on the two key intersections to be problematic. Cm. Brown stated he also likes the project and the way the various lifestyles have been incorporated with senior living, affordable and market rate housing. He was in support of the project. Cm. Swalwell stated that people expect, with affordable housing, the project will be livable and safe and esthetically pleasing. He felt the project had all those things. He liked that the developers worked together to create a good project that everyone benefits from. He had a technical concern with the resolutions; he asked that: the words "Applicant" and "Applicant/ Developer" be made plural to indicate there is more than one Applicant. He felt that it could be a problem in the future. Ms. Fraser agreed to change to the resolution to "Applicants/ Developers" in the resolution and the Conditions of Approval. Pfanning Commission 83 4prif28, 2009 Wfgufar Meeting Ms. Fraser also stated that Staff would like to add a Condition of Approval that says the effective date of the approval will not be until the City Council approves the GPA and PD Rezoning and certifies the Environmental Impact Report. Chair Wehrenberg was also in agreement that this is a good project and likes the parking management plan, the design and the fact that it is part of the housing element as far as meeting the future goals for the City. She liked the Eden program and their excellent life skills programs for teens and the elderly. She also stated she is in support ol. the parking and likes that fewer cars required as well as off-site improvements and access points. She is in support of the project. On a motion by Cm. Schaub and seconded by Cm. Swalwell, on a vote of 4-1-0, Morgan King opposed, with changes to the resolution and an addition to the Condition of Approval, the Planning Commission approved : RESOLUTION NO. 09-12 A RESOLUTION OF THE PLANNING COMMISSION OF THE CITY OF DUBLIN RECOMMENDING CITY COUNCIL CERTIFICATION OF AN ENVIRONMENTAL IMPACT REPORT FOR THE ARROYO V][STA PROJECT LOCATED AT 6700 DOUGHERTY ROAD (APN 941-0007-001-07) PA 07-028 RESOLUTION NO. 09 -13 A RESOLUTION OF THE PLANNING COMMISSION OF THE CITY OF DUBLIN RECOMMENDING THAT THE CITY COUNCIL APPROVE A GENERAL PLAN AMENDMENT TO CHANGE THE DESIGNATION OF THE ARROYO VISTA PROJECT SITE =-?L d clTti RESIDENTIAL TO MEDIUM/IIIGH-DENSITY RESIDENTIAL AND PUBLIC/SEMI-PUBLIC AND ALLOW FOR ATTACHED AND DETACHED HOUSING UNITS IN THE MEDIUM/HIGH-DENSITY i ?-sue -:- _ -.=i VL LLwl3S ji11 I13 (APN 941-0007-001-07) PA 07-028 Planning Commission 84 4pri[28, 2009 W-egular 9`Meeting RESOLUTION NO. 09-14 A RESOLUTION OF THE PLANNING COMMISSION OF THE CITY OF DUBLIN RECOMMENDING THAT THE CITY COUNCIL ADOPT AN ORDINANCE APPROVING A PD PLANNED DEVELOPMENT REZONE AND A RELATED STAGE 1/STAGE 2 DEVELOPMENT PLAN FOR THE ARROYO VISTA PROJECT LOCATED AT 6700 DOUGHERTY ROAD (APN 941-0007-001-07) PA 07-028 RESOLUTION NO. 09 -15 A RESOLUTION OF THE PLANNING COMMISSION OF THE CITY OF DUBLIN APPROVING VESTING TENTATIVE TRACT MAP 7943 FOR THE ARROYO VISTA PROJECT LOCATED AT 6700 DOUGHERTY ROAD (APN 941-0007-001-07) PA 07-028 RESOLUTION NO. 09 -16 A RESOLUTION OF THE PLANNING COMMISSION OF THE CITY OF DUBLIN APPROVING SITE DEVELOPMENT REVIEW FOR THE ARROYO VISTA PROJECT WITH 378 RESIDENTIAL DWELLINGS, COMMUNITY BUILDING AND DAYCARE LOCATED AT 6700 DOUGHERTY ROAD (APN 941-0007-001-07) PA 07-028 8.2 PA 08-034 - Fallon Gateway Commercial Center - Amendment to the Planned Development District of the General Commercial portion of Area. C and a Site Development Review for a retail commercial development located at the southwest corner of Fallon Road and Dublin Boulevard. Mike Porto, Consulting Planner presented the project as stated in the Staff Report. Cm. Schaub asked if the reason the square footage is called out in the Staff Report is because the City expects so many dollars per square foot and now we could expect less revenue. Planning Commission 85 Apd(28, 2009 Wsgular Meeting Mr. Porto responded that the Commission is used to looking at a project in terms of dwelling units per acre. He stated that Staff Report mentions the square footage that could be developed if the site was developed to its maximum potential. He continued that the project is only developing the site to 379,000 square feet because of the parking issue and the fact that the project must have enough parking for what is built on the property. Cm. Schaub asked why Phase 4 is not a part of this project/ap??lication. Mr. Porto answered the developer could address that issue but the standards are in place to guide the development and at this point the developer is retaining some flexibility in case times change, etc. Cm. Schaub asked about the property to the north of the Dublin Blvd/Fallon Rd intersection and why it will not be developed. Mr. Porto answered that there is a DSRSD pump station there that was designed to look like the maintenance building for the golf course. It was anticipated that this corner would have some type of identifying element. Cm. Schaub asked if the parking count included the areas of the project that were not included in this application. Mr. Porto answered that the parking does include those areas that are not included in this application but are mentioned to give the Planning Comndssion knowledge of the overall project. Cm. Schaub asked what would be built in those areas. Mr. Porto answered that the exact configurations of those areas are not available at this point, but the developer has given Staff "placeholders " to reserve some flexibility that those "placeholders" could vary which would be the subject of a fufi ire Site Development Review. Cm. Schaub asked if the freeway sign is within the airport pro .-ection zone. Mr. Porto answered yes and under Condition of Approval #1CO prior to the issuance of building permits the developer must have permission from the FAA to build the sign. Chair Wehrenberg opened the public hearing. Dave Chadbourne, LandPlan Associates, spoke in favor of the project. Galen Grant, Craig & Grant Architects, spoke in favor of the project and narrated a video that showed the project driving along I-580 westbound to the Fallon Road off ramp towards the project that shows the pvlon sign and how it is viewed from the road. He also showed a video showing the main entrv to the .site, the gatewav to the project on Fallon Road with matching architecture on both sides. He showed anotlier v dp() of the nrniPrf nn A Oho !'PT-) He -)+ eniirrpc Planning Commission - 86 4pri[28 2009 WfgularWeeting and how they will appear during the day and night. Mr. Grant commented on the flexibility of the LED light sources and how the colors change but can also be left white. He stated the LED light source is user friendly; life expectancy is 15 years before they need to be changed. He stated the initial investment is higher but replacement costs are less over time. Chair Wehrenberg asked what colors would be displayed and if the City could request a certain color such as green on St. Patrick's Day. Mr. Grant stated the light source is programmable and can display many different colors at the discretion of the developer. He also showed a representation of the light source, in the form of a light box, to show the different colors of illumination with tl-Le Lumasite materials that will be used in the actual pylon sign. Chair Wehrenberg asked if the graphic panel materials for they sides of the buildings will be the same type of materials. Mr. Grant answered that the graphic panel is a different materials. He continued that they are more like billboard panels or awnings, but will not be used :=or ads or signage for the project. He stated that Target has been good in creating a graphic without calling it signage. Chair Wehrenberg asked about the life expectancy of the graphic panels and mentioned the problem of Dublin's high winds. Mr. Grant answered that high winds would not effect the panels. Cm. Schaub asked how the graphic panels will be managed and if changes would have to come to the Planning Commission for approval. Mr. Porto answered that the panels would be included in the Master Sign Program that would not come before the Commission, but would be approved at the Staff level. Mr. Grant stated that the graphic panels have been successfully used in retail environments to add life; activity and animation, and enthusiasm on the part of the shopper. jyir. Grant mentioned that the Lumasite material is being successfully used at L A. Chair WArenberg asked if the reason that the pylon sign is 99 feet tali is because of the east to west visibility. She asked if the height is also based on the number of tenants even though the number of tenants or who they are is not known at this point. Mr. Grant responded there are 11 major tenant slots on the sign. Target would have the top, primary position and the subtenants would be located adjacent and below that. Chair Wehrenberg asked if Target requires their signage to be a certain height. Mr. Grant answered yes because of the size of their pylon logo. Manning Commission 87 Aprif28, 2009 Wfgular 9Keeting Chair Wehrenberg asked if there are known tenants for the project. Mr. Jim Tong, Applicant, spoke in favor of the project. He stated that at this point and the retail business being slow, there are no known tenants. He stated that Target's corporate order is to wait until August and look at second quarter results and then. California would be at the top of list with the Dublin site as a priority. Mr. Tong continued that Target does not like to go forward with a project unless it is approved but once approved their timeframe would be a 2011 opening. Cm. Swalwell stated, looking at the other signs and heights of those signs, he asked if they felt the height of their sign is justified because it would be an anchor for the City and the first sign seen from the east to the west. He also asked, from a design stand point, if they felt that the first sign should be taller rather than the middle sign be the tallest sign. Mr. Grant agreed and felt that the sign has a distinct purpose to the center and felt it is an anchor identifying the eastern edge of Dublin. Cm. Schaub was very concerned with how much control the City will have over how bright the sign will be. Mr. Grant answered it is not their intent to have the intensity of the sign be distracting. He stated they want the sign to be supportive of the message but not so strong that it overpowers the effect. He stated that the intensity of the LED lighting can be dialed down and that the sign would be a soft glow rather than a bright, distracting light. Cm. Schaub felt that some LED signs are bright during the day but at night they are excruciating because the sun is gone. He felt there has to be a way to dial the brightness back during the course of the sun cycle and asked if that could be done with this sign as well as the signs in the shopping center. Mr. Grant stated that the light source is programmable and will not be powered up during the day. He stated the value of the concept is that the color will glow at night. Cm. Schaub asked if during the day the sign will be white. Mr. Grant answered yes, the sign will be white. Mr. Porto mentioned a shopping center in Rancho CucamoAga which has used the same light source on pylons that are significantly higher than this sign. He stated during the day you would not be able to tell if the light was on because of the brightness of the sun. He stated that because the length of the element it would be hard for the light to be very bright. Chair Wehrenberg understood that the length of sign would not allow enough light to create the color and intensity that would make it distracting. She also felt that there would have to be multiple light sources in order get the effect of the color and glow. PCanning commission 88 Aprif 28, 2009 W gufarMeeting Mr. Porto stated that the sign would not get to a level of brightness that would be distracting. Mr. Grant stated that when the intent is to throw the light a great distance the light sources must be periodic. Chair Wehrenberg asked if the lights will be on during the day since that would be a waste of energy. Mr. Grant answered they would not be on during the day and agreed that would be a waste of energy. Cm. King asked if there could be a Condition of Approval added that would allow the Planning Department to call the shopping center and ask them to tone down the lights if they felt they were too bright. Chair Wehrenberg stated that would be addressed in the Master Sign Program. Cm. Brown liked the sign and felt it was more esthetically pleasing than other signs traveling down I-580. Chair Wehrenberg closed the public hearing. Cm. Schaub felt that the City will have to deal with the issue of lighting and Lumins and the brightness of signs. He felt that there needed to be some type of technology to control the brightness of the lighting. He felt the City needs to have control and should not allow the developer to have the control. He felt the Planning Commission should discuss this at some point to have control over what is seen or how bright the signs can be. Mr. Baker stated that the project to be approved at this meeting does not include LED screens which would be a change to the project and would require review. Cm. Schaub stated this is the first sign that has come to the Commission with large scale illumination on a sign that wasn't just normal lighting. He felt the sign was intended to attract attention for the shopping center but it should still be controlled. Cm. King asked if there was a department that could retain jurisdiction over the sign if there were a problem. Chair Wehrenberg felt that Condition of Approval #110 refers to foot candles and lighting and will take into account all exterior lighting. There was a discussion regarding the lighting and how to control the brightness. Cm. Schaub asked if the Planning Commission can we include a Condition of Approval to manage and control the brightness of the lighting. Planning Commission 89 4pri(28, 2009 Wfgular Meeting Chair Wehrenberg suggested embellishing Condition of Approval #110. Mr. Baker suggested adding a Condition of Approval that the lighting should be controlled so that it would not be a nuisance and it would be enforced through the Code Enforcement Department and it would further state that if it does become a nuisance it must come back to the Planning Commission for review. Cm. Schaub agreed with Mr. Baker. Chair Wehrenberg asked how the Commission felt about the height of the pylon sign. Cm. Schaub felt the pylon sign is too tall but did not want to discourage Target from coming to the City. He suggested that until the developer knows what the requirements are for the tenant that they hold off on the pylon sign. He felt that they should ,also have approval from the FAA. He was concerned that because of its height the FAA would require a beacon on top. He felt that the pylon sign was too tall and should be the same size as Lowes which has not been installed yet. Mr. Porto suggested amending Condition of Approval #98 that states the Master Sign Program shall be submitted to the City for review and approval an6 add the words "by the Planning Commission" prior to the installation of signage and bring the Master Sign Program back to the Planning Commission. Chair Wehrenberg wanted to distinguish between this partiCUlar Condition of Approval for the freestanding pylon sign and the master sign program which tfLe graphic panels are a part of. Mr. Porto stated that the graphic panels are part of the MSP which is usually approved at Staff level. He suggested that the MSP could be brought back to the Planning Commission for review and approval instead of at Staff level. Chair Wehrenberg felt the Planning Commission did not have a problem with the MSP being approved at Staff level. Cm. Schaub suggested that the Planning Commission approve the sign at 75ft, which is consistent with the rest of the signage in the City and then if an exception needs to be made at a later date it would be brought back to the Commission for approval at that time. Chair Wehrenberg felt that was a good compromise. Mr. Baker suggested that Staff modify the Condition of Approval that the sign will be 75Ft and then in the future if they wanted something more they would have to come back to the Commission. Chair Wehrenberg stated that depending on the tenant and if they get the approval of the FAA and no red beacon on the top, it would be acceptable. (Planning Commission 90 4prif28, 2009 W,fgular Meeting Cm. Swalwell stated he did not have a problem with the sign as is. He continued he has no problem with the height, he felt it is an anchor at this location, he likes the concept, and thinks the lights are not offensive. He continued that he is familiar with LAX sign and felt it was esthetically appealing. He felt the Commission was overextending the role of the Planning Commission when they comment on the color and intensity of the lights. He felt that if it becomes a problem then it would come to the Planning Commission. He was concerned with setting the precedence that the Planning Commission should be involved in every sign. He felt that he could trust Staff to make the right decision and he agreed with adding the condition that if the FAA requires modification to the sign it would need to return to the Commission. He thought the height is purposeful and not arbitrary because of the grade and because of its anchor location. Cm. Schaub asked to separate the two issues; the height of the sign and the control of the brightness of the colors. Chair Wehrenberg asked if the Commission had issue with the height of the pylon sign. Cm. King stated he did not have issue with the height of the pylon sign. Cm. Brown stated he did not have issue with the height of the pylon sign. Chair Wehrenberg did not feel a 14 foot taller sign makes a business less successful. She felt it is a great project but did not want Dublin to look like I-880. She complemented the Applicant on the graphic of all the signs and their heights and pointed out that it shows the other signs have a 75 ft maximum. She mentioned that the current Target does not have a signage height requirement but felt that if the City has a maximum height requirement they would abide by it. Cm. Schaub asked if the Commission would approve the pylon sign at 99 feet. Cm. Swalwell felt the sign has artistic value to it and felt it was alright to go a little higher because of the luminescence. He felt the other signs are steel and have little artistic value. He likes how the pylon sign anchors the City. Cm. Brown agrees with Cm. Swalwell and if FAA requires a red beacon on the top of the sign then the Planning Commission should require that the sign be at a height that does not require the beacon. Cm. Schaub was in support of the project. Cm. King was in support of the project. Cm. Brown was in support of the project. Cm. Swalwell was in support of the project. Pranning Commission 91 Aprir28, 2009 [4gurar Meeting Cm. King mentioned a area in the interior of the project that looks like it would be a good place for gathering spot. Mr. Porto stated that on Page L4.1 of the landscape plan it details the area mentioned and shows the gathering spot with outdoor dining, tables and benches. Mr. Porto stated that there is a correction in Condition of Approval #99 to change the wording to "logos" instead of "logs." Chair Wehrenberg stated that the architecture of the project is fabulous. She felt it is interesting and adds excitement to the project. She liked the vertical articulation and the graphic panels. She liked the idea of installing the off-site landscaping in the beginning of the project. She stated she still has reservations regarding the height of the pylon sign but was generally in support of the project. Cm. Schaub stated that under Condition of Approval #100 he felt it should be added that if in fact the FAA requires alterations it must come back to Planning Commission. Mr. Baker asked if the FAA says the sign needs to be shorter but the design doesn t change would the Commission still feel it would need to come back to them. Cm. Swalwell felt that any height reduction probably does not need to be reviewed but any design change would need to be reviewed and approved by the Planning Commission. Mr. Porto suggested changing the Condition of Approval to read: "FAA. As is with no changes." Cm. Schaub also mentioned Condition of Approval #110 that states Planning Staff continues to have control over the lighting in the future. He felt that they all agreed that it should go to Staff. Mr. Baker suggested "lighting fe)r Lumasite acrylic panels shou,'d be controlled so as not to create a nuisance." Mr. Porto suggested adding the Planning Department as Responsible for review in the Condition of Approval #110. Mr. Baker suggested creating a new Condition of Approval for the Lumasite panels separate from the lighting condition and require it be reviewed by the Planning Department. Ms. Faubion suggested "as is with no changes except for a reduction in height." Condition #100 modified to read: "Freestanding Sign: The 99 foot freestanding sign is subject to review and approval by the FAA as is with no changes except for a reduction in height." fiYanning Commission 92 Aprif28, 2009 W-vgufar Meeting Add a new Condition of Approval that will state: "Lighting for Lumasite acrylic panels should be controlled so as not to create a nuisance." On a motion by Cm. Schaub and seconded by Cm. King, on a vote of 540-0, the Planning Commission approved with modifications to the Conditions of Approval: RESOLUTION NO. 09-17 A RESOLUTION OF THE PLANNING COMMISSION OF THE CITY OF DUBLIN RECOMMENDING THAT THE CITY COUNCIL ADOPT AN ORDINANCE AMENDING THE PLANNED DEVELOPMENT DISTRICT OF DUBLIN RANCH AREA C SPECIFICALLY FOR THE PROJECT KNOWN AS FALLON GATEWAY COMMERCIAL CENTER LOCATED AT THE SOUTHWEST CORNER OF DUBLIN B43ULEVARD AND FALLON ROAD IN AREA C OF DUBLIN RANCH (APN 985-0027-009-03) PA 08-034 RESOLUTION NO. 09 -18 A RESOLUTION OF THE PLANNING COMMISSION OF THE CITY OF DUBLIN APPROVING A REQUEST FOR A SITE DEVELOPMENT REVIEW FOR A RETAIL COMMERCIAL CENTER IN A PLANNED DEVELOPMENT ZONING DISTRICT LOCATED AT THE SOUTHWEST CORNER OF FALLON ROAD AND DUBLIN BLVD. APN: 985-0027-009-03 PA 08-034 NEW OR UNFINISHED BUSINESS - NONE OTHER BUSINESS - NONE 10.1 Brief INFORMATION ONLY reports from the Planning Commission and/or Staff, including Committee Reports and Reports by the Planning Commission related to meetings attended at City Expense (AB 1234). Y(anning Commission 93 4pri[28, 2009 (Rrgufar Meeting Chair Wehrenberg mentioned that she attended a meeting regarding Bicycles and Trails and reported there were continuation of trails coming up and what is being done to accommodate the bike paths and that the connection between Dublin and Pleasanton may be completed by next year. ADTOURNMENT - The meeting was adjourned at 10:25 p.m. Respectfully submitted, Doreen Wehrenberg Chair Planning Co iss'on ATTEST: Jeff B e Acting Planning Manager G: \MINUTES\2W PL"VING COMMISSION14.28.09.doc Tlanning Commission 94 April28, 2009 WfgufarWeeting Arroyo Vista Project Planning Commission Hearing April.28, 2009 7:00 p.m. Item 8.1 PUBLIC COMMENTS FROM RHENAE KEYES Good evening. My name is Rhenae Keyes. I submit these comments as a resident of Arroyo Vista, the chairperson of Arroyo Vista Tenants Association, and one of the plaintiffs in a pending lawsuit involving disposition of Arroyo Vista. I urge the Planning Commission to reject staff's recommendations this evening for the following reasons: • Contrary to the public notice regarding this hearing, the Agenda Report and attachments were not made available on the City's website for public review until Monday, April 27, 2009. This deprives the public of an adequate opportunity to submit informed comments. At a minimum, the Commission should postpone any action on Agenda Item 8.1 to permit adequale opportunity for public comment and to comply with the Brown Act. • The Commission should not recommend certification of the EIR for the reasons set forth in our counsel's letter dated March 23, 2009, a copy of which is attached to these comments. Staff's responses to those comments in the Final EIR are incomplete, inadequate, and not supported by the evidence. In addition: o Staff's proposed revisions to the Draft EIR are inconsistent with the Disposition and Development Agreement, DHA's Application to HUD for approval of disposition, and the Relocation Plan adopted by DHA. Because these revisions may have a significant impact on housing and the population, the proposed Final EIR should be re-circulated for public comment. Making the Final EIR available for review one day before the Commission's public hearing deprives the public of any meaningful opportunity to review and comment on the propc sed Final EIR. o Because HUD has not approved DHA's application to dispose of Arroyo Vista and may impose additional conditions on the project, the EIR should not be certified without consideration of the environmental effects of any conditions HUE) may impose on the project. Likewise, HUD may reject the application for disposition which would likely affect the City Council's consideration of the project alternatives set forth in the EIR. • The Commission should not recommend approval of the General Plan.or PD Planned Development Rezone and related Developmen: Plan. It is premature to recommend approval of a project that is fundamentally contingent on approval by Agenda Item 8.1 Rhenae Keyes Comments Page 1 HUD. As staff acknowledges in its Agenda Repo:-t, HUD has not approved DHA's application to dispose of the property. o The Commission should not adopt the resclutions approving the site development review and vesting tentative tract map for Arroyo Vista. Again, HUD has not yet approved DHA's application for disposition. A "piecemeal" approval of the project by the Planning Commission could impede modifications to the tentative tract map and site development as may be required by HUD. Moreover, a "piecemeal" approval of the project without certification of the EIR or a no-'ice of determination by the lead agency conflicts with CEQA procedural requirements.' It also undermines the City Council's discretion to consider alternatives set forth in the EIR, including the alternative that the prcject not go forward at all. • Finally, we wish to correct staff's statement in its Agenda Report that residents will receive a 90-day notice prior to any mandatory relocation. DHA's Relocation Plan and a notice issued to residents of f?rroyo Vista in July 2008, pursuant to a stipulation filed in the pending litigation, provides for a minimum 150-day notice to residents advising them of HUD's decision on the application for disposition and any mandatory requirement to relocate. Given the longer notice requirement and the fact that HUD has yet to act on the Application, the Planning Commission should not rush to circumvent th° law. We urge you to reject staff's recommendations and to postpone any further action on the Arroyo Vista project in the absence of HUD approval of DHA's application for disposition and full compliance with CEQA requirements. Agenda Item 8.1 Rhenae Keyes Comments Page 2 The Public; Interest Law Proiect The Public Interest Law Project and Phone (510) 891-9794 California Affordable Hou;ing Law Project Fax (510) 891-9727 449 - 15th Street, Suite 301 www.plipca.org Oakland, CA 94612 March 23, 2009 Michael Rawson Co-Diredor Via Hand Delivery Extension 145 mrawson@pilpea.org City of Dublin Stephen Ronfeldt Community Development Department Co-Director Extension 127 100 Civic Plaza sronfeldt@pilpca.org Dublin, CA 94568 Deborah Collins Managing Attorney Attention: Erica Fraser, Project Planner Extension 156 dcollins@pilpca.org Re: Comments on Draft EIR Craig Castellanet Arroyo Vista EIR SCH #2007122066 Staff Attomey Extension 132 ccastellanet@pilpca.org Dear Ms Fraser: Angie Schwartz Staff Attorney Extension 125 il ca or h d Bay Area Legal Aid and The Public Interest Law Project submit these comments p . g z@p asc wa on the Arroyo Vista Draft Environmental Impact Report (Draft EIR) on behalf of Judith Gold the Arroyo Vista Tenants Association, Rhenae Keyes, Andres Arroyo, our clients y o1 e , ursuant to the City's Nctice of Availability of d E?lise Veal l B D nsion Ext 11 p rown an ar ene jgold@pilpca.org Draft EIR dated January 28, 2009. Elizabeth Graber Legal Assistant The City's Preparation of the Draft EIR for the Arroyo Vista Project Is Extension 110 egraber@pilpca.org Untimely. Georgia Feltz The Draft EIR is too late in the development process to reasonably guide the City Administrator "proposed" Extension 101 Council's decision with respect to the environmental im-?acts of the gfehz@pilpca.org project. In fact, the City Council improperly committed itself to the redevelopment of Arroyo Vista long before evaluating the environmental effects of the project. As acknowledged in the Draft EIR, the purpose of an EIR is to inform and guide the lead agency's review of the potential environmental effects of a proposed development project, so that the agency can fulfill its responsibility to avoid or minimize the environmental impacts of a proposed project through appropriate mitigation measures or alternatives. See, Draft EIR at 2 0, 2.3. The lead agency cannot take any action that significantly furthers a project in a manner that forecloses the very alternatives or mitigation measures suggested by CEQA review. See Public Resources Code §21000 et seq.; 14 Cal. Code Regs. 15004(b)(2)(B); see also Save Tara v. City of West Holl-.,wood, 45 Ca1.4th 116, 130-31 (2008). City of Dublin Community Development Department Page 2 March 23, 2009 Here, the Draft EIR acknowledges that at least 441 Arroyo Vista residents "would be" displaced and 150 income-restricted units demolished pursuant to the proposed project. See Draft EIR at § § 1.2, 3.5, 4.9. The Draft EIR further sets foith three purported alternatives to thie proposed project: • Alternative 1 calls for no project such that the existing public housing units would remain and there would be no displacement of the respective residents from the Site. Id. at § § 1.5, 5.1. • Alternative 2 suggests a reduced project, calling for demolition of all existing units, relocation of all residents, and redevelopment at a lower density resulting in fewer units. Id. at § § 1.5, 5.2. • Alternative 3 calls for a mixed use project using a portion of the site for commercial development and the remainder of the site for 188 attached dwelling units restricted for low and very low income household3. Id. at §§1.5, 5.3. As a practical matter, the City Council cannot reasonably consider these alternatives, and particularly not Alternative 1, because it has already taken a se-ies of significant steps to commit itself to the proposed project, including: In July 2007, it entered into a disposition and development agreement (DDA) with the Dublin Housing Authority (DHA), Alameda County Housing Authority (HACA), Citation Homes, and Eden Housing to carry out the same project that is proposed here [demolition of all public housing units, relocation of all existing residents, and redevelopment of as a mixed income development of approximately 378 dwelling units]. As part of its disposition and development agreement, the City Council agreed to contribute $1.5 million for relocation costs and to disturse those funds incrementally as costs are incurred. Without any environmental review, in March 2007, a relocation consultant was hired; beginning in or about July 2007, DHA and HACA began relocating residents; by August 2007, at least 12 households had been relocated and by June 2008, apfroximately 60 households had been relocated. See DDA; Contract with Overland Pacific & Cutler; and DHA Relocation Plan. Thus, the City already committed and incurred significant costs in support of the "proposed" project. • As Arroyo Vista residents have been relocated, their Vacant homes have been boarded up, resulting in a "de facto" demolition of nearly half of the public housing units at Arroyo Vista without any environmental review of the environmental impact. City of Dublin Community Development Department Page 3 March 23, 2009 • In August 2007, DHA submitted an application for disposition of Arroyo Vista to HUD which proposes the same project called for in the DDA. The Application includes a letter of support of the proposed project from the City. • As part of its disposition and development agreement, the City Council made a $1.5 million "construction" loan commitment to Eden Housing. • Although Eden Housing was to pay for predevelopment costs of the project, according to the DDA, in December 2007, the City Council approved a "predevelopment" loan of $325,000 to Eden Housing. Thus, the City's preparation and circulation of a Draft EIR at this late date offers little more than a "post hoc [rationalization] to support action" the City has "already taken." See Save Tara v. City of West Hollywood, 45 Ca1.4t' 116, 129-30 (2008) [citation omitted]. It effectively approved the proposed project withou-: any environmental review in violation of CEQA and CEQA Guidelines. The City cannot shield itself from its failure to comply with CEQA procedures by claiming that its DDA is "conditioned" on approval of DHA's application for disposition to HUD and/or completion of the environmental review mandz.ted under CEQA. The court will look beyond the `terms' of the purported `conditionE.l' DDA to examine the record. Where the record reflects that the City or its staff committed significant resources to shaping the proposed project and/or foreclosed any meaningful options to going forward with the project, then for purposes of CEQA, the City will be deemed to have approved the project. Save Tara v. City of West Hollywood, st pra. Relocating nearly half of the families at Arroyo Vista in advance of any environmental review and expending City funds in support of the project effectively precludes any meaningful consideration of the alternatives outlined in the Draft EIR. Indeed, by carrying out the "proposed" project prematurely, the City has foreclosed not only the alternatives outlined in the Draft EIR, but its ability to comply with any conditions that may be imposed by HUD. The Conclusion That There Would Be a Less Than Significant Impact With Respect to Population and Housing Is Not Supported by Substantial Evidence. The EIR must provide adequate information to local officials, government agencies and members of the public in order to disclose the environmental impacts and propose the mitigation measures and alternatives that will avoid or minimize those impacts. Here, the Draft EIR concludes that the proposed project would result in a "less than significant" impact with respect to population and housing. See Draft EIR at §4.9. However, this conclusion and the "facts" upon which it is based are not supported by substantial evidence. See Public Resources Code §21168.5. City of Dublin Community Development Department Page 4 March 23, 2009 The Draft EIR acknowledges that there would be a significant impact if the proposed project would displace a substantial number of dwelling units or people necessitating the construction of replacement housing elsewhere. Draft EIR §4.9. It concludes, however, that the impact of displacing approximately 441 persons and the demolition of 150 homes that are predominately affordable to extremely low income families is "less-than- significant." Id. This conclusion is premised on the false notion that removal of the public housing units is only temporary; residents "would be" relocated pursuant to local, state and federal law; and any residents with incomes that are less than the maximum affordability levels will have a "right to return." "Temporary" Removal of Units. There is no evidence in the record that the units to be demolished will, in fact, be rebuilt. In fact, the DDA calls i.'or the non-profit developer to apply for Section 202 Capital Grant, Low-Income Housing Tax Credits, and/or other public funds in order to produce rental units that would be afi.'ordable to households with incomes up to 60% of AMI. See DDA, Ex. B (Financing Plan/Development Budget). Moreover, development of any rental units at these affordability levels is expressly dependent on the availability of sufficient funding. See DDA §2.3, 2.4. Further, neither DHA's Application nor the DDA even project a construction start date for the purportedly affordable senior and family units. See Application §5; DDA, Ex. E. Sufficient funding for the affordable rental units is not likely to be available in the near future. As the recent stimulus package recognizes, the tax credit program suffers from a lack of investors willing to purchase tax credits. Even projects3 that were already awarded tax credits have stalled as a result. Second, the stimulus package targets HOME funds to assist those stalled projects, not new ones. And, Section 202 funding has suffered from inadequate funding for years, rendering receipt of such funds highly competitive. Thus, there is no guarantee that demolition of 150 public housing units is only "temporary" and no guarantee that any affordable rental units will ever "replace" the 150 public housing units to be demolished. "Affordability" of Units. Second, the proposed project will not produce units that are affordable to a majority of Arroyo Vista residents, rendering any purported "right of return" misleading at best. Even assuming that the non-profi-: developer actually secures sufficient funds to produce "affordable" rental units, the projected tax credit rent levels would be out of reach for most Arroyo Vista families. The Draft EIR implies that current residents have incomes up to 80% of the AMI. In fact, as of September 2007, DHA reported that 65% of Arroyo Vista households have extremely low incomes (at or below 30.% of AMI) 1; 24% have very low incomes (at or below 500K of AMI); and 31% percent 1 In fact, 69% of the households have incomes below $25,000 which is bel 9w extremely low income for a household of four; the average annual income at Arroyo Vista is only $21,101. Resident Characteristics City of Dublin Community Development Department Page 5 March 23, 2009 of the households include persons with disabilities. See HACA/DHA Resident Characteristics Report, September 30, 2007.2 Based on 2008 income limits for Alameda County, the maximum "affordable" housing cost for an extremely low income family of four is $646 per month; it is $1076 for very low income households of four. Smaller households and households below extremely low income can afford even less. For example, an extremely low income household of one with an income of $18,100 could afford no more than $452 for rent; California households with Supplemental Security Income (SSI) as their sole source of income (typically seniors over 65 and persons with disabilities) can afford no more than $261 for rent.3 Finally, DHA reported in February 2008 that the average monthly rents at Arroyo Vista range from $232 for one-bedroom units and $553 for 4-bedroom units. See DHA Relocation Plan at page 14. By comparison, monthly rents for the 49 one-bedroom, senior-only "redeveloped" units are estimated at $471. See DDA, Ex. B-6. At best, this rent level would pose a rent burden for Arroyo Vista's extremely low income senior households. For one-person senior households with incomes considerably lower than 30% of the area median income, including households with SSI as their sole income, rents of $471 would render the senior ineligible for the unit. Arroyo Vista's "non-senior" families fare even worse. Although 65% of Arroyo Vista residents have extremely low (or lower) incomes and at least 63% of its households include families with children that would be ineligible for the senior- only units, only 13 of the 129 "family" units are targeted to extremely low income families. See Resident Characteristic Report September 2007; DDA, Ex. B-3. And, only 8 of those units (one and two-bedrooms) would rent for less than $646, the maximum rent affordable to an extremely low income family of four. Id. Moreover, only 3 of the 129 "family" units (all one-bedrooms) would rent below $525, the maximum amount affordable to Arroyo Vista's "average" extremely low income households. See footnote 1; DDA, Ex. B-3. Even rents of $525 would far exceed the average rents currently charged for one-bedroom units. Thus, the redevelopment plan will not result in 150 units that are affordable to a majority of Arroyo Vista's families, and the conclusion that residents will have a "right of return" is not supported by the evidence. Accessibility. The proposed redevelopment of Arroyo Vista does not address accessibility of units for persons with disabilities. Over 30% Jf Arroyo Vista households include family members with disabilities. See Resident Charz.cteristic Report, September 2007. The City's Housing Element reflects that 18 Anoyo Vista units are fully accessible to persons with mobility impairments. If the accessible units are not replaced, residents with mobility impairments are obviously precluded from any "right of return". Report, September 2007. Households even with the average income could afford rents of no more than $525. 2 Moreover, DHA's Relocation Plan estimates that onlyfive Arroyo Vista households may be ineligible as "over-income". for Section 8 assistance. 3 See National Low Income Housing Coalition, Out-of-Reach 2007-08 at vnvw.n.lihc.org. City of Dublin Community Development Department Page 6 March 23, 2009 Inadequate Size Units. Arroyo Vista presently consists of 150 single family homes with a mix of 16 one-bedroom, 78 two-bedroom, 32 three-bedroom and 24 four-bedroom homes. See Application §4. DHA reported household sizes in September 2007 of: 46% 1 and 2 person households; 36% 3 and 4 person households; 16% 5 and 6 person households; and 4% 7 and 8 person households. Units of an appropriate size for such households would include approximately 68 1-bedroom, 58 2-bedroom, 23 3-bedroom and 6 4-bedroom units. Moreover, as discussed above, 31% of Arroyo Vista households include persons with disabilities, and as DHA acknowledges M its Relocation Plan, some of those households require an additional bedroom. See Relocation Plan at 12-13. By comparison, the DDA provides for the replacement of 59 1-bedroom units (49 of them restricted to seniors); 69 2-bedroom units; 34 3-bedroom units; and 15 4-bedroom units which does not match the residents' needs by household sire. In order to ensure that Arroyo Vista families are not deprived of a "right of return" for the replacement units, any approval of the Application should be conditioned on replacement with a sufficient number of units that actually match the residents' needs by household size, including any needs for an additional bedroom to reasonably accommodate households with disabilities. Finally, by restricting a majority of the 1-bedroom units to seniors, non-senior families in need of a 1-bedroom unit would be deprived of a meaningful right of return. Right of First Refusal The Draft EIR states that residents will have a right of returr. as long as they don't have incomes higher than the Project's maximum affordability levels. That is not what the Application and DDA provide. Rather, the Application and DDA provide that Arroyo Vista households who are relocated as part of the disposition process would have a "first priority" for the affordable replacement units, provided they meet eligibility standards and procedures to be imposed by the developers. See Ap;lication §5, Line 9; DDA §4.2(c). The DDA further limits the pool of Arroyo Vista residents to "prior residents" that "were eligible under the Relocation Plan." DDA §4.2(3)(1). In order to ensure a "meaningful" "right of return" as opposed to a "first priority", redevelopment would require that the redeveloped rental units are affordable, accessible, and of appropriate size to accommodate the Arroyo Vista residents. In addition, limiting the "first priority" to families that were eligible under the Relocation Plan is inadequate because DHA relocated many families long before it even adopted a Relocation Plan. The Application further provides that relocated residents would be required to meet "basic qualification criteria". Application §5, Line 9. However, the DDA would subject prior residents to arbitrary and vague eligibility and screening standards including for example: "a continuing commitment to be law-abiding and lease-compliant;" "behavioral standards which would be expected in the private rental mark,.-t;" and any other standards arid procedures the developer proposes if approved by DHA and HACA. See DDA §42(c)(1), (c)(2). As of September 2007, 34% of Arroyo Vista residents had resided at Arroyo Vista for over ten years, 19% for over 5 years, and 27% for between 2 and 5 City of Dublin Community Development Department Page 7 March 23, 2009 years. See Resident Characteristics Report, September 2007. In short, Arroyo Vista has long enjoyed a stable, law-abiding, ethnically and racially diverse community of families with children, seniors, and persons with disabilities. Subjecting applicants for the redeveloped units to arbitrary and subjective standards may well result in fair housing violations. As long as its current and prior residents are or we:•e tenants in good standing during their Arroyo Vista tenancies (i.e., they were not terminated for cause pursuant to the terms of their rental agreements) and "waiting list" applicants would be eligible for a public housing unit but for disposition of Arroyo Vista, they need only meet the eligibility criteria applicable to any state and/or federal fund ing source that is used in developing the units for which they apply. Relocation of Residents. The Draft EIR states that all residents to be displaced "would be" relocated pursuant to local, state and federal law. In fact, at least 60 households were relocated already, and most of them were relocated without any relocation plan or the opportunity to comment on one before they were relocated. Tius, it is misleading for the Draft EIR to imply that all residents "would" receive all relocation required by local, state and federal law. That has already not occurred. Moreover, our clients have challenged the validity of the relocation plan under state ar.d federal law and DHA's failure to comply with its own relocation plan or state or f.-deral law with respect to relocation assistance and benefits. See Bay Legal/PILP Comments to Relocation Plan. For the above reasons, the EIR should be rejected and the DDf?, rescinded. We appreciate the opportunity to comment on the Draft EIR and request that our comments be included in the record. We would appreciate a JVritten response and notice of any public hearing on the Draft EIR. Very truly yours, The Public Interest Law Project Bay Area Legal Aid BY: Deborah Collins Attorneys for Arroyo Vista Tenants Association, et al.