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HomeMy WebLinkAboutItem 2 - Attch 12 - Exhibit A - CGS3 Summary of Issuesu r- CROSBIE GLINER SCHIFFMAN SOUTHARD & SWANSON LLP �'' Attorneys at Law 12750 HIGH BLUFF DRIVE, SUITE 250 SAN DIEGO, CALTPORNIA 92130 TELEPHONE (858) 367 -7676 FACSIMILE (858) 345 -2991 April 15, 2016 VIA E- MAIL (RZumwaltkchulavistaca.gov_) Mr. Richard Zumwalt, A1CP Development Services Department City of Chula Vista 276 Fourth Avenue. Chula Vista, CA 91910 Re: Vista Del Marl Project # DR15 -0015; PCS 15 -006 Dear Mr. Zumwalt: WRITER'S EMAIL ADDRESS eheidelberg a cgO.com WRITER'S DIRECT PHONE NO. (858) 779 -1718 On behalf of our client, Balboa Equity Capital, Inc., we are providing comments on the above - referenced project application ( "Application "), as revised by the applicant's submittal to you dated March 10, 2016. I. SUMMARY OF ISSUES The fundamental concern with the Application is that the FAR requested exceeds by 95 percent that which is authorized by the base FAR for the C -1 Third Avenue South Neighborhood Transition Zone: Base floor area allowed under C -1: (FAR 1.0) and lot size: Maximum FAR bonuses from Urban Amenities Table: -- 10 percent FAR increase if parking is provided onsite: -- 10 percent FAR increase for public outdoor space: -- 30 percent FAR increase for LEED Gold: Total floor area (base plus maximum for three bonuses): PROPOSED PROJECT FLOOR AREA: DISCREPANCY: PROPOSED PROJECT FAR: 45,213 s.£ 4,521 s.f. 4,521 s.f. 13,564 s.f. 67,820 s.f. 88,323 s.f. 20,503 s.f. 1.95 Part of the 20,503 square foot discrepancy between the proposed project's floor area and the authorized floor area under C -1 plus maximum bonuses under the Urban Amenities Table is purportedly accounted for by correspondence from the applicant to the City, in which the applicant asserts a right to the cumulative calculation of each bonus, such that maximum FAR from the first bonus is added to the base FAR, and that enhanced base FAR is used as the basis for calculation 4828- 3439 - 1344.3 Exhibit A CROSBIE GLINER SCHIUFMAN SOUTHARD & SWANSON LLP Attorneys at Law Mr. Richard Zumwalt, AICP April 15, 2016 Page 2 of the second bonus, and so on. By this unauthorized cumulative approach to calculating the bonus FAR, the applicant claims an additional 3,299 square feet: 67,820 s.f. 3,299 s.f. 71,119 s.f. Even with the unauthorized additional floor area claimed by the applicant due to compounding of the calculations of three bonus awards, there is an unexplained deviation of 17,204 square feet of floor area (88,323 s.f. minus 71,119 s.f.). We assume that the applicant is seeping a Development Exception from the FAR standard to authorize the additional 17,204 (or properly calculated, 20,503) square feet of floor area. (UCSP, VI -54.) SUCK a Development Exception should not be granted, for the reasons set forth below. In addition to the excessive FAR for a project abutting a single - family residential neighborhood that is to be protected by the Neighborhood Transition Combining District designation, we offer the following comments which should be addressed in the staff report to the Planning Commission: 1. The Application fails to comply with an express requirement of the Special Provisions for Neighborhood Transition Combining Districts, in that it would include a large second -floor terrace and 28 units with balconies and eight units with patios, all of which overlook the rear yards and homes of adjacent single - family residences. As such, the Application cannot be approved because it is inconsistent with the UCSP and its implementing zoning regulations. 2. In analyzing the Application's request for FAR bonus awards, the UCSP expressly requires consideration of the projected build -out that would occur if all the bonus provisions allowable under the Urban Amenities Incentives program were actually awarded. We submit that this analysis must conclude that the requested 50 percent increase in FAR, if applied to all other properties within the 690 -acre Urban Core Subdistrict Areas, would result in land use intensities exceeding by several factors the assumed maximum levels of residential, retail, and office development in the Urban Core Specific Plan and EIR. Such analysis should conclude with a recommendation to deny the requested 50 percent FAR bonus award, although some lower level of bonus award may be justified. 3. In preparing a recommendation to the Planning Commission regarding how much FAR bonus should be granted for each of the Urban Amenities, the staff report must evaluate the degree of public benefit provided by the proposed project. We submit that the public benefit provided by the urban amenities proposed in the Application 4828- 3439 - 1344.3 CROSBIE GLINER SCHIFFMAN SOUTHARD & SWANSON LLP Attorneys at Law Mr. Richard Zumwalt, AICP April 15, 2016 Page 3 does not warrant a 50 percent increase in FAR, although some lesser increase in FAR may be justified. 4. There is absolutely no basis in the UCSP for the Application's assumption that the City may add an award of FAR bonus to the proposed project's FAR, which then becomes the base for calculation of another award of FAR for an additional amenity. This sort of compounding of permitted FAR would result in an unwarranted additional seven (7) percent increase in the proposed project's FAR. 5. On top of the requested 50 percent FAR bonus sought by the Application for inclusion of three amenities, and the wholly unsupported seven percent FAR bonus that would result if FAR bonus awards were compounded as described in #4 above, the Application apparently seeks a Development Exception to the FAR limit, so as to permit a total project FAR of 1.95, or almost double the base FAR in the applicable C -1 zone of 1.0. We submit that the required findings to support such an exception cannot be made, because (1) the proposed development will adversely affect the goals and objectives of the UCSP, (2) will not comply with all applicable regulations of the UCSP (including but not limited to the requirement that balconies overlooking rear yards of abutting single - family homes must be avoided so as to ensure that building design is cognizant of adjacent low density areas), and (3) the exception is not appropriate for the location and will not result in a better design or greater public benefit than could be achieved through conformance with the UCSP development regulations. The hulk and mass of the project as proposed is simply too extreme a deviation from the base FAR of 1.0, particularly where the project is located in a Neighborhood Transition Combining Area. 6. The City may not rely on provisions of CEQA allowing streamlined environmental review for projects consistent with applicable plans, because as set forth above the Application does not propose a project that is "consistent' ' with the density standard expressed for the parcel in the UCSP. (See 14 Cal. Code Regs. § 15183 (a); see also Pub. Res. Code § 21083.3(c)). Accordingly, preparation of a subsequent EIR would be necessary in order to comply with CEQA. These issues are discussed in the following sections. II. THE APPLICATION FAILS TO COMPLY WITH THE NTCD REQUIREMENT THAT BUILDING DESIGN BE COGNIZANT OF ADJACENT LOW DENSITY USES AND AVOID BALCONIES OVERLOOKING REAR YARDS The UCSP establishes special regulations for Neighborhood Transition Combining Districts ( "NTCDs ") "to ensure that the character of zones within the Specific Plan area will be 4828 - 3439 - 1344.3 CROSBIE GLINER SCI41FF IAN SOUTHARD & SWANSON LLP Attorneys at Law Mr. Richard Zumwalt, AICP April 15, 2016 Page 4 compatible with and will complement surrounding residential areas.' zone, in which the proposed project is located, is an NTCD. "Requirements" of the NTCD is as follows: 2. Requirements ' (UCSP, VI -40.) The C -I (Id) One of the express g. Building design shall be cognizant of adjacent low density uses (i.e., avoid balconies overlooking rear yards. Id., VI- 40 -41. To be clear, this is an express requirement of the zoning that is an integral part of the UCSP; it is not a mere guideline, such as the Design Review Guidelines found elsewhere in the UCSP. The Application proposes a total of 28 balconies and eight patios that overlook rear yards of adjacent single- family uses, as well as a second -floor terrace that suffers from the same building design defect. Specifically, there are six east - facing balconies (three each on the second and third floors) at the east end of the proposed project, less than five feet from the west side of Church Street right-of-way, which balconies face cast, overlooking single- family residences and - rear yards of these residences. And there is one unit on the third floor which in a prior version of the Application had a north - facing balcony, which in the latest version has a west - facing balcony. This shift of the orientation of the balcony, however, does not eliminate the intrusion on the privacy of those living in the single- family residences on the west side of Church Street, apparently approximately 20 to 25 feet from the property line, because the occupants of the unit will still be able to look north into the yards and homes of those single - family residences when the occupants are using the balcony. In addition, there are 21 east - facing balconies (seven each on the third, fourth and fifth floors) that directly overlook the single - family homes and rear yards of those residences on the west side of Church Street. These balconies are as close as 47 horizontal feet and are located on a recessed east - facing portion of the building. Also, there are seven east- facing patios just below those balconies. Finally, there is a large second -floor terrace that faces both east and north, with views facing into the rear yards of single - family homes on the west side of Church Street. From the portion of the terrace facing east, only 13 feet and seven inches separates the edge of the terrace from a rear yard of a single - family home. From the portion of the terrace facing north, only 13 feet and one inch separates the edge of the terrace from the yard of a single - family residence. The applicant apparently asserts that trees to be planted in containers at the edge of the terrace will mitigate the violation of the requirement that building design be cognizant of adjacent low density uses, but the trees will mitigate the ability of those in the abutting single- family residences to view users of the plaza from the yards of the single - family homes, but will not impede the ability of the residents of the 71 units (and their guests) using the terrace to look into the yards and homes of the adjacent single - family residences. 4828- 3439 - 1344.3 CROSBIE GLINER SCHIFFMAN SOUTHARD & SWANSON LLP Attorneys at Law Mr. Richard Zumwalt, AICP April 15, 2016 Page 5 The fact that the specific example of how that requirement — that building design be cognizant of adjacent low density uses — is to be implemented — by avoiding balconies overlooking rear yards — is being violated by the Application makes the inconsistency with this requirement all the more obvious and egregious. The only way that the Application could be approved with the 36 balconies or patios, plus the terrace, overlooking adjacent single - family homes is if the Planning Commission were to authorize Development Exceptions from the above -cited requirement to ensure that building design be cognizant of adjacent low density uses by avoiding balconies and other features that overlook rear yards. We submit that three of the four the findings that are required to be made if a Development Exception is to be granted could not be made in this instance. Specifically, the finding could not be made that the proposed development will not adversely affect the goals and objectives of the UCSP and the General Plan. (UCSP, VI -54.) As cited above, the NTCD establishes special regulations "to ensure that the character of zones within the Specific Plan area will be compatible with and will complement surrounding residential areas." (Id. at VI 40.) Having residents of 71 units overlooking the yards of, and into the homes of, single- family residences located in some cases just a few yards away can hardly be considered to be consistent with the goals and objectives of the UCSP and in particular the purpose of the NTCD's special regulations. The second required finding to grant a Development Exception — that the proposed development will comply with all other regulations of the Specific Plan -- cannot be made, for two reasons: the Application calls for a near doubling of the applicable FAR limit of 1.0. With respect to the inability of the required findings to be made for the increased FAR, see Section VI. below. Finally, the fourth finding required to authorize an exception cannot be made, namely, that the exception that would allow the residents of 71 units, either from their private balconies or patios or from the terrace that is part of the common area of the complex, to overlook the yards and into the homes of adjacent single - family residences is "appropriate for this location and will result in a better design or greater public benefit than could be achieved through strict conformance with the UCSP development regulations." (UCSP, VI -54.) III. IN ANALYZING THE APPLICATION'S REQUEST FOR BONUS AWARDS OF FAR, STAFF MUST CONSIDER THE PROJECTED BUILD -OUT THAT WOULD OCCUR IF ALL THE BONUS PROVISIONS ALLOWABLE UNDER THE URBAN AMENITIES INCENTIVES PROGRAM WERE ACTUALLY AWARDED The UCSP makes it clear that "[t]he amount of bonus awards Chula Vista will make available should take into account the projected build -out that would occur if all of the bonus provisions allowable under the program were actually awarded." (UCSP, VI -48.) This can only refer to projected build -out under the UCSP, which is assumed to occur over 20 to 25 years after adoption of the UCSP in 2007, or by 2027 to 2032. (UCSP, II -2.) Buildout is assumed as follows: a net increase of 7,100 multi - family dwelling units; a net increase of 1.0 million square feet of 4$28- 3439 - 7344.3 CROSBIE GLINER SCFIIFFMAN SOUTHARD & SWANSON LLP Attorneys at Law Mr. Richard Zumwalt, AICP April 15, 2016 Page 6 retail space, a net increase of 1.3 million square feet of office space, and a net increase of 1.3 million square feet of visitor - serving uses within the UCSP Subdistricts area. (UCSP, II -2.) If we assume that 80 percent of the 690 acres comprising the UCSP Subdistricts Area is intended to be the subject of infill or redevelopment at higher densities during the build -out periods, and those 552 acres were to be developed with the three amenities proposed by the Application — parking within the building (for up to a 10 percent increase in FAR), LEED gold (for up to a 30 percent increase in PAR), and public open space (for up to a 10 percent increase in FAR) — then the resulting intensity of land use would be 50 percent greater than is contemplated in the UCSP or in its EIR. This assumption does not take into account additional density bonuses that may be granted for projects which provide affordable housing, or FAR waivers that are available for preservation and maintenance of features of historic structures or projects which include community or human services. (UCSP, VI -51.) This means that either build -out (as defined by the net increases in various uses as specified in the preceding paragraph) would be reached without the redevelopment of approximately 50 percent of the existing land area which the UCSP seeks to have redeveloped, or that the 552 acres will be redeveloped at 50 percent greater intensity of use. It is obvious that either alternative would have significant potential impacts: under the former scenario, a large number of parcels would remain in their underutilized, vacant and /or deteriorated status; and under the latter scenario, the intensity of land use would outstrip the capacity of the UCSP's planned transportation and other infrastructure improvements to serve the residential population and users of the commercial space. Neither outcome is consistent with the UCSP and neither outcome was evaluated in the EIR for the UCSP. Comparing the Application to the assumed build -out of the entire UCSP Subdistricts Area is instructive. As the Application calls for 71 residential units, the proposed project would account for exactly one percent of the anticipated build -out of multi- family units for the entire UCSP Subdistricts Area. But, the project site is only 45,213 square feet, or 1.04 acre. The entire UCSP Subdistricts Area is 690 acres, and so the project site is only 0.15 percent of the entire UCSP Subdistricts Area. The disparity between the Application's allocation of the UCSP's residential build -out — one percent -- and the Application's project site size as compared to the total acreage in the UCSP Subdistricts Area — 0.15 percent -- indicates that the project site would capture more than 6.6 times its proportionate share of residential units. The staff report on the Application must therefore, consistent with the directive in the UCSP cited above, take into account the consequences if the other 689 acres of the UCSP (or as suggested above, some proportion of the entire 690 -acre Subdistricts Area that is presumed to be redeveloped by 2032) are redeveloped with 50 percent FAR bonuses awarded through the Urban Amenities Incentives provisions of the UCSP. 4528- 3439 - 33443 CROSBIE GLINER SCHIFFMAN SOUTHARD & SWANSON LLP Attorneys at Law Mr. Richard Zumwalt, AICP April 15, 2016 Page 7 IV. THE STAFF REPORT ON THE APPLICATION MUST EVALUATE THE DEGREE OF PUBLIC BENEFIT PROVIDED BY THE PROPOSED PROJECT AND BASE ITS RECOMMENDED PERCENTAGE INCREASE IN FAR ON THAT ANALYSIS Correspondence submitted to the City by the applicant seems to assume that the City will automatically award the proposed project a 50 percent increase in FAR because the proposed project would include parking on site, LEED Gold features, and a 650- square foot public plaza. But the UCSP makes it clear that, in addition to the analysis referred to in Section Ili hereof, the award of bonus FAR for providing amenities identified in the UCSP's Urban Amenities Table (UCSP, VI -51) is discretionary and that Planning Commission, in determining "just how much additional FAR or FAR waiver should be granted" must first "take into account the value added to the property by the amenity or design, and a reasonable share of additional FAR or FAR waiver that will proportionally compensate the developer for the additional amenities or design provisions." (UCSP, VI -48.) Second, the Planning Commission must evaluate incentive requests "case -by -case based on the degree of public benefit provided by the proposed project." This case -by -case analysis should consider, for example, that a maximum 10 percent FAR bonus is available to be awarded for "Public Parks and Plazas, including Sports/Recreation Facilities, Play Lots, Water Features, Trails, Par Courses, Equipment, Gardens, Art Works." (UCSP, VI -51.) The public open space must have the following characteristics: an area greater than 500 square feet with a minimum depth of 30 feet; provides tables and chairs; provides pedestrian - scaled lighting, and has outdoor public art and other desired amenities, such as fountains. (Id.) Here, the Application provides nothing more than a 650- square foot plaza at the raised primary entrances to the residential structure and to the small commercial use. It will likely be perceived by members of the public as an amenity belonging to the residents of the units or patrons of the commercial use, as distinguished from, say, a pocket park that might be located on the side of the structure, away from the primary entrance to the residential structure or retail space, which would more readily be perceived as a public space. As noted, the Planning Commission is obligated to evaluate incentive requests on a "case - by- case basis based on the degree of public benefit provided by the proposed project." We submit that the proposed plaza, which is not much larger than the minimum size required to be awarded a bonus, should not be awarded the full 10 percent FAR bonus, because it would have the effect of discouraging other developers from including a more useful and larger public open space area, such as a play lot, or a sports or recreation facility. The City should reserve an award of the full 10 percent FAR bonus for "Public Parks and Plazas" to a property owner whose project incorporates public open space which provides more significant public benefit. 4828- 3439 - 1344.3 CROSBIE GLINER SCHIFFMAN SOUrHARD & SWANSON LLP Attorneys at Law Mr. Richard Zumwalt, AICP April 15, 2016 Page 8 V. 'THERE IS NO BASIS IN THE UCSP TO ALLOW FOR COMPOUNDING OF FAR BONUSES FOR AMENITIES In addition to wrongly assuming that the proposed project is entitled to the maximum available amount of FAR bonus for providing three separate urban amenities, the applicant is assuming that the award of an FAR bonus for providing one urban amenity can then be added to the base project FAR for purposes of calculating the percentage FAR bonus for a second urban amenity, and that the resulting FAR bonus for the second amenity can be added to the base project FAR for purposes of calculating the amount of the FAR bonus for the third amenity. (Through this attempt to claim a right to a higher FAR bonus than it is entitled by providing three urban amenities, the applicant is seeking to reduce the amount of the Development Exception from FAR limits it is seeking from the City, from a request for an exception in the amount of .45 additional FAR (i.e., an exception allowing 45 percent more floor area than allowed after application of the maximum FAR bonuses for three urban amenities), to a request for .38 additional FAR. See Section VI. Below.) To be specific, the applicant is claiming that it is entitled to a bonus of 4,521 square feet (10 percent of the size of the parcel, which is 45,213 square feet) for providing parking on site, and that that 4,521 is added to the 45,213, yielding 49,734 as the base to which the 10 percent FAR bonus is awarded for providing the above - referenced 650 -square foot public plaza. Then, the applicant claims that the resulting 4,973 square feet of bonus floor area for the public plaza is added to the 49,734, yielding 54,707 square feet which would be the base floor area to which the 30 percent FAR bonus for LEED Gold is applied, resulting in a third floor area bonus in the amount of 16,412. The 16,412 would be added to the 54,707 square feet to get a total floor area, purportedly authorized by the bonus awards for providing urban amenities, of 71,119 square feet. There is absolutely no support for this "compounding" of the calculation of FAR bonus awards in the UCSP. In the absence of language specifically authorizing that compounding, each FAR bonus award should be separately added to the total FAR. So, the FAR bonus awards, even if the Planning Commission were to determine, after the case -by -case analysis of public benefit conferred by each urban amenity, that the maximum FAR bonus should be awarded to the project for each of the three amenities to be provided, should be calculated as follows: base floor area of 45,213; plus 4,521 for parking on site; plus 4,521 for public plaza; plus 13,564 for LEED Gold. The sum total floor area after application of the maximum. bonus FAR for the proposed project cannot exceed 67,819 square feet. 4828 - 3439 - 1344.3 CROSBIE GLINER SCHIFFMAN SOUTHARD & SWANSON LLP Attorneys at Law Mr. Richard Zumwalt, AICP April 1.5, 2016 Page 9 VI. A DEVELOPMENT EXCEPTION TO THE FAR LIMIT PERMITTING AN FAR OF 1.95 SHOULD NOT BE GRANTED BECAUSE THE APPLICATION DOES NOT ADVANCE THE PURPOSE OF THE DEVELOPMENT EXCEPTION PROVISION, AND THE REQUIRED FINDINGS CANNOT BE MADE . A. Introduction Even if awarded the maximum FAR bonus for three urban amenities, and even if the awards for such FAR bonuses were compounded as discussed in Section V, the Application requires the Planning Commission to grant a substantial "Development Exception" to the FAR limit in order for the Application to be approved. As discussed in Sections IV and V, the base floor area for the parcel is 45,213 square feet, as the base FAR is 1.0. The Application proposes a project that is 88,323 square feet, with a resulting FAR of 1.95. Even if the maximum floor area bonuses were awarded for the project's inclusion of three urban amenities and those FAR bonuses were simply added to the base floor area (rather than being compounded as described in Section V), the Application seeks approval of a project that is 88,323 square feet, with a FAR of 1.95, or almost 50 percent above the 1.5 FAR that would result with maximum floor area bonuses awarded. Thus, the Application cannot be approved unless the Planning Commission issues a "Development Exception" as set forth in the Section VLI of the UCSP. A Development Exception is intended to encourage innovative design and allows flexibility in the application of certain development standards. (UCSP, VI -54.) Because the Application does not offer much if anything in the way of innovative design, but rather seeks only to maximize intensity of use of the property, and because the required findings cannot be made to support a "Development Exception" that would grant an additional 0.45 FAR, we submit that the Application must be denied. B. The Application Offers Little in the Way of the Desired Design Features Set Forth in the Design Guidelines Applicable in the Corridors District The Application does not reflect the incorporation of any significant number of the design and site planning principles applicable to projects proposed in the Corridors District. {UCSP, V11- 107 -138.) Consequently, it does not merit the substantial exception to the FAR limit sought by the Application. First, the Application does not embody variety in building form, facades and features, as called for in the Design Guidelines. (UCSP, VII -108.) The project consists essentially of two rectangular boxes maximizing lot coverage along the Third Avenue and K Street frontages, with the only design feature providing any relief being the plaza at the juncture of the two rectangles. 4828- 3439 - 1344.3 CROSBIE GLINER SCHIFFMAN SOUTHARD & SWANSON LLP Attorneys at Law Mr. Richard Zumwalt, AICP April 15, 2016 Page 10 There appears to be some variation in the finish materials, but essentially no articulation except at the intersection of the two boxes at the plaza. Second, the Application does not comply with the second design principle, which calls for new development to "demonstrate sensitivity to surrounding uses. Such efforts should include limiting building massing...." (UCSP, VI -108.) The Application shows no sensitivity whatsoever to the abutting single - family residential use: As discussed above in Section 11, the Application calls for 28 balconies, eight patios and a large second -floor terrace that overlook the immediately abutting single - family yards and homes. And instead of limiting building massing, as expressly called for in order to ensure compatibility between different uses(UCSP, VIA 08), the Application seeks a Development Exception to allow it to exceed the otherwise maximum permissible FAR by a full 0.45 (to 1.95 from the 1.0 base and the maximum 1.5 if the full amount of incentive bonuses are added). Similarly, the proposed project hardly exemplifies the architectural guidelines for the Corridor District. They call for varying building heights and setbacks from adjacent or adjoining buildings. (UCSP, VII -115.) Here, the two rectangles do not provide diversity in building type, nor in height or setbacks. In addition, apart from the balconies, the facades show little break or articulation or vertical and horizontal offsets to minimize large blank walls and reduce building bulk. (Id.) The design guidelines regarding roof and upper story detail are similarly not incorporated into the proposed project. There appear to be no large overhangs featuring open rafters or tails, nor are there any building vertical focal elements, such as towers, spires, or domes, all of which are encouraged. (UCSP, VII -117.) It does not appear that the required perimeter wall along the eastern boundary of the property adjacent to the single - family homes is offset every 50 feet or designed to reduce monotony, or that there are landscape pockets along the wall at regular intervals. (UCSP, VII -118.) Thus, the Application does not reflect the incorporation of a significant number of the desired UCSP design features for the Corridors district, let alone exemplify innovative design, which is the stated purpose of the provision allowing Development Exceptions. Accordingly, the staff report must address exactly why the Planning Commission should grant such a large exception (almost 50 percent) to the fundamental land use regulation governing development in the UCSP Subarea Districts, the limit on FAR. 4828- 3439 - 1344.3 CROSBIL GLINER SCHIFFMAN SOUTHARD & SWANSON LLP Attorneys at Law Mr. Richard Zumwalt, AICP April 15, 2016 Page 11 C. The Required Findings Cannot Be Made to Support an Exception to the FAR Limit In addition to the Application not furthering the purposes that the Development Exception provision is intended to serve — innovative design — the findings required for a Development Exception cannot be made in this instance. The Planning Commission cannot grant a Development Exception unless four findings are made. Here, only one of the four findings can be made, namely, that the proposed development will incorporate one or more of the Urban Amenities. (UCSP, VI -54.) None of the other three required findings can be made: (I) that the proposed development will not adversely affect the goals and objectives of the UCSP and the General Plan; (2) that the proposed development will comply with all other regulations of the UCSP; and (3) that the exception is appropriate for this location and will result in a better design or greater public benefit than could be achieved through strict conformance with the UCSP development regulations. 1. A Finding Cannot Be Made that the Proposed Development Will Not Adversely Affec t the Goals and Ob'ectives of the UCSP and General Plan Just as the UCSP requires that projected buildout be considered if all the bonus provisions allowable under the Urban Amenities Incentives Program were actually awarded (as discussed in Section III above), so too must the Planning Commission consider the cumulative impact on the goals and objectives of the UCSP of granting a Development Exception that would allow an almost 50 percent increase in the permissible FAR (assuming that the full amount of potential FAR bonus for inclusion of three Urban Amenities were awarded) or a 95 percent increase in the permissible FAR (if no FAR bonus were awarded for inclusion of Urban Amenities). Such a Development Exception would set a precedent that would mean either that build -out under the UCSP (i.e., net increase of 7,100 dwelling units, 1.1 million square feet of retail space, 1.3 million square feet of office space, and 1.3 million square feet of visitor - serving space) would be reached without the redevelopment of approximately 50 percent of the 690 acres in the UCSP Subarea Districts, or that that area will be redeveloped at approximately 50 percent greater intensity of land use. Either alternative would deter the achievement of the goals and objectives of the UCSP, and result in potential environmental impacts not assessed in the ELR. Under the former, a large number of vacant, underutilized and /or deteriorated parcels would remain in that status, because all of the projected and planned for growth will have occurred on a small fraction of the parcels that happened to be developed first. Under the latter scenario, the City would ignore the projected build -out numbers and allow growth at almost double the intensity of that planned in the UCSP throughout the UCSP Subdistricts Area, growth that would outstrip the capacity of the planned infrastructure to accommodate it without adverse environmental and other impacts. 4828- 3439 - 1344.3 CROSBIE GLINER SCHIFFMAN SOUTHARD & SWANSON LLP Attorneys at Law Mr. Richard Zumwalt, AICP April 15, 2015 Page 12 In addition to the general inconsistency of the requested Development Exception with the entire framework of the UCSP, it is fundamentally at odds with the Neighborhood Transition Combining District and its goal that "the character of zones within the Specific Plan area will be compatible with and will complement surrounding residential areas." (UCSP, VI -40.) Simply put, a near doubling of the base FAR (which results if the Application is approved with minimal or no FAR bonuses awarded for inclusion of three Urban Amenities) or a near 50 percent increase in the base FAR (which results if the Application is approved with the maximum available FAR bonuses for inclusion of those three Urban Amenities) is inconsistent with the goal of ensuring that growth in the Urban Subdistricts areas that are designated as NTCDs (as is the C -1 district in which the subject property is located) is compatible with adjacent single - family residential areas. 2. A Finding Cannot Be Made that the Pro-posed Development Complies with All 01her° Regulations of the UCSP As discussed in Section 11, the Application includes 28 balconies, eight patios, and large wrap - around terrace which all overlook adjacent single - family residences, in violation of the requirement of the NTCD that "[b]uilding design shall be cognizant of adjacent low density uses (i.e., avoid balconies overlooking rear yards." (UCSP, VI- 40 -41.) It would make a mockery of the NTCD provisions, and the UCSP generally, were the Planning Commission to grant a Development Exception to allow the sought -after 28 balconies, eight patios and large terrace, in addition to a Development Exception for the almost 50 percent increase in permissible floor area (assuming that full credit were granted for the three Urban Amenities). 3. A Finding Cannot Be Made that the Development Exceptions Are Appropriate for the Location and Will Result in a Better Design or Greater Public Benefit Than Could Be Achieved Through Strict Conformance with the Specific Plan's Development Re gulations An increase of almost 50 percent in the permissible FAR (assuming maximum credit were given for inclusion of three Urban Amenities) in an area abutting a single - family residential area and utter disregard of the NTCD's requirement that building design be cognizant of adjacent single - family residential development by 28 balconies, eight patios and a large terrace overlooking single - family homes and yards militate against a finding that the Development Exceptions are appropriate for the project site and that they will result in a better design or greater public benefit than if the project were to conform to the Specific Plan's development regulations. The Application seeks not a small variance from the UCSP's development regulations, but a major departure from the FAR limits and the protections afforded adjacent single - family residential areas. 4828 -3439- t 344.3 CROSRIE GLINER SCHIFFMAN SOUTHARD & SWANSON LLP Attorneys at Law Mr, Richard Zumwalt, AICP April 15, 2016 Page 13 VII. STREAMLINED REVIEW OF THE APPLICATION UNDER CEQA WILL NOT SUFFICE BECAUSE IT IS NOT CONSISTENT WITH THE DEVELOPMENT DENSITY ESTABLISHED BY THE UCSP The California Environmental Quality Act ( "CEQA ") provides for streamlined environmental review for qualifying projects that are consistent with the applicable general plan, community plan and zoning designations. (Pub. Res. Code §21083.3; 14 Cal. Code Regs. (hereinafter "Guidelines ") §15183.) "CEQA mandates that projects that are consistent with the development density established by existing zoning, community plan, or general plan policies for which an EIR was certified shall not require additional environmental review, except as might be necessary to examine whether there are project - specific significant effects which are peculiar to the project or its site...." (Guidelines, § 15183(a) (emphasis added). "Consistent" means that the density of the proposed project is the same or less than the standard expressed for the involved parcel in the general plan, community plan or zoning action for which an EIR has been certified, and that the project complies nvith the density - related standards contained in that plan or zoning...." (Id. §I5183(i)(2) (emphasis supplied).) Here, the Application is not consistent with the development density established by the UCSP. "The standard for the parcel at issue in the UCSP is an FAR of I.O. The Application would authorize a project with an FAR of 1.95. The EIR for the UCSP did not discuss at all the potential effects of development occurring at densities greater than those set forth in the base FAR authorized for each UCSP Subdistrict. It simply stated, without explanation, that the UCSP at build -out would add 7,100 dwelling units, 1.1 million square feet of retail space, 13 million square feet of office space, and 1.3 million square feet of visitor- serving space. The source of these figures was not identified, nor was there any discussion in the UCSP or the EIR of how the base FAR authorized for each UCSP Subdistrict, let alone the authorized increases in FAR through the Urban Amenities, related to the build -out assumptions. Indeed, as noted above in Section III, the UCSP expressly mandates that the Planning Commission's determination as to "[t]he amount of bonus awards Chula Vista will make available should take into account the projected build -out that would occur if all of the bonus provisions allowable under the program were actually awarded." (UCSP, VI -48.) Accordingly, if up to a 50 percent increase in FAR were to be awarded to the proposed project through the provision of three Urban Amenities, that analysis must be undertaken because the UCSP requires it and the EIR did not address it. These principles apply with even more force in the case of the requested Development Exception that would allow an additional 0.45 FAR, on top of the maximum 0.5 FAR bonus sought through the Urban Amenities program. As Development Exceptions can theoretically be granted as to any or all of the development standards applicable in any of the UCSP Subdistrict Areas, the 4$28- 3439 - 13443 CROSBIE GLINER SCHIFFMAN SOUTHARD & SWANSON LLP Attorneys at Law Mr. Richard Zumwalt, AICP April 15, 2016 Page 14 FIR obviously could not (and did not) analyze the potential impacts of awards of Development Exceptions. Where, as here, the Development Exceptions sought by the Application include an increase in FAR of between 0.45 and 0.95, as well as a blatant violation of the NTCD requirement that "building design shall be cognizant of adjacent low density uses (e.g., avoid balconies overlooking rear yards)," it is evident that the project is not consistent with the development density or other key provisions of the UCSP. The FIR for the UCSP could not possibly have analyzed the potential impacts of an infinite number, variety and extent of Development Exceptions to the various applicable development regulations, and did not address those potential impacts in any manner. Accordingly, the Application is not subject to an exemption from, or streamlined review under, CEQA under Public Resources Code section 21083.3. At minimum, a subsequent FIR would be required to comply with CEQA if the City were to approve the Application. EFI-1Im e cc: Mr. Earl J entz 4828- 3439 - 1344.3 Sincerely, t `V Evelyn.. Heide