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HomeMy WebLinkAboutStaff Report 3.G Late Document 01/05/2009Cooper, Claire From: Crump, Katie Sent: Monday, January 05, 2009 1:47 PM To: - City Clerk Subject: FW: Pinnacle Ridge item before Council on 12/5 Attachments: Pinnacle Ridge VTM conflicts.pdf For the binder Katie Crump Exec. Assistant to the City Manager (707) 778-4347 kcrump@ci.petaluma.ca.us City Hall Hours as of 11/3/08: Mon. -Thur. 8-5; Closed Fridays -----Original Message ----- From: scotsteg@sonic.net [mailto:scotsteg@sonic.net] Sent: Sunday, January 04, 2009 9:04 PM To: King, Fran; citymgr Subject: Pinnacle Ridge item before Council on 12/5 The following message was sent to the Council members for whom I have email addresses. I do not have Mike Healy's email, and it is not up on the web site, so I would appreciate it if you could forward this to him. I didn't want to bog the Council memo with legal fine print, but think that there are considerable obstacles to proceeding. My previous objections to improper notice of the MND still stand. CEQA clearly requires three types of notice to occur: -notice to the County Clerk -notice to all Responsible and Trustee agencies -notice to the public through at least one of the options of mail to those requesting notice as well as those within 500 feet, or notice in a local press, or notice via signage. The City has confirmed no sign notice occurred, nor did proper notice to the press take place. The staff position at the last meeting was that notice under CEQA only required mail notice to the 500 foot perimeter, which I believe is incorrect. The staff position was that only 1 of 3 options is required; in fact, 3 specific different notices are required, one of which can be meant in any of 3 ways. I stated in a prior hearing, and no response or dispute was made by staff, that the County Clerk has no physical copy nor computer record of receiving Notice for the MND last fall prior to the Commission hearing. Planning staff have also confirmed that no contact was made with any state agencies, either directly or through the State Clearinghouse, based upon their belief that no state agency has any jurisdiction. This is clearly contradicted by the the biological reports submitted by the applicant, the discussion included within the MND, and the final mitigations reflected in the Mitigation Monitoring Program as adopted. If a discretionary approval is required of a state agency, as in the case with the requirement in the MMP for a discharge permit from the Bay Regional Water Board, than that agency is considered a Responding Agency and must be noticed as such. In addition, the trustee authority of both the Bay Board and Cal Fish and Game is again confirmed by the language of the MMP, the MND, and the technical reports. 1 I wont rework that ground, and my client would not pursue legal options if the VTM and proposed PUD were otherwise tolerable. As to the Vesting Tentative Map, the record and problem seem pretty clear. The Resolution approving the VTM was adopted based upon consistency with a Zoning District that did not exist at the time of the VTM approval. Since both the Map Act and City Code provide specific guidance for precisely this situation, I question whether some ex post facto work around would survive legal scrutiny. The memo sent to the Council follows... There are still a number of issues related to this project, and I will send a separate email specific to issues regarding the rezoning. I am also sending this to the City Manager and the City Attorney. But the attached memo deals with a significant new procedural problem relative to the Vesting Tentative Map. The memo describes the situation in greater detail, but the bottom line is that the Tentative Map cannot and could not have been legally approved on December 8, since the necessary zoning change to allow that density in that configuration wasn't yet in place. At the time of approving a Vesting Tentative Map (VTM), it has to be found consistent with the Zoning Code then in force. Since the rezoning to the new PUD (designed to allow the proposed subdivision) was not yet in force at the time of the December 8 vote (and is still not in force prior to this meeting of January 5), the subsequent approval almost a month ago of the VTM violated both the City Subdivision Code and the California Subdivision Map Act. The Map Act does provide a way to deal with these transitional situations, but these were not used in this case and are not reflected in the Resolution of December 8 approving the VTM. So it is my position that control over both the proposed rezoning and the proposed Vesting Tentative Map still lie in the hands of the current City Council. The Council can take a second affirmative vote on the rezoning ordinance, but it also has the authority to address issues appropriate to the rezoning, such as specifying controls over accessory structures and uses, providing enforceable protections for neighboring properties regarding operation and maintenance of the private infrastructure as proposed, and other issues raised in my previous memo to the City Council. The Council also has the ability to confirm that all the content requirements for a PUD District are present, such as the specific requirement that a PUD District include a specific construction timetable, that such a timetable is to be adopted by the Council with the rezoning, and that the Ordinance approving the rezone specifically incorporate that timetable. But beyond the Council options for how to approach the second rezoning vote, the Vesting Tentative Map will have to be re noticed for a subsequent City Council meeting, at which time the Council will have the right and opportunity to address issues of concern relative to setbacks, building envelopes, control of and responsibility for private infrastructure, size and location of lots, and so on. I raise this issue both so that the Council may appreciate that they have more options to address this proposal than are obvious, and to recognize that there are still significant legal obstacles to this project moving forward on January 5. I regret I cannot attend the meeting on Monday night, since I am still in Delaware, but I have caught up on the item and am staying in contact with my client and their legal counsel pending my return later this week. I am sending this from the depths of Delaware and playing catchup as to how this surfaced this week, and am grappling with internet issues away from my normal office. I will be able 4 to respond to any questions via email or phone if that would be helpful. Scot Stegeman The City Council action on the Pinnacle Ridge Vesting Tentative Map, as conditioned, violates provisions of both the Petaluma Subdivision Code and the State Subdivision Map Act. The sequence of actions taken by the Council on December 1 had approval of the Vesting Tentative Map following the introduction of the proposed Ordinance revising the existing PUD District. But the proposed Vesting Tentative Map is inconsistent with the current PUD District, and the proposed PUD amendment has not been approved, since the second vote has not occurred. Even then, the PUD revisions would not take effect until 30 days after the first approval. It is precisely for this reason that both the Municipal Code and the Map Act provide for these transitional situations. The City Code provides that Tentative Maps must be consistent with the General Plan and Zoning Code (20.04.030). And specific to Vesting Tentative Maps, the Code states that any inconsistency of a Vesting Map with the Zoning in force at the time of adoption must be noted on the Map. It also requires that the City shall deny a Vesting Tentative Map that is inconsistent with the Zoning Code (20.018.070). Contrary to that requirement, the City Council approved without restriction the Pinnacle Ridge Vesting Tentative Map prior to completing the PUD rezoning process. The Subdivision Map Act does provide a solution to these overlapping situations, and that is to expressly condition the Vesting Tentative Map to only be approved subject to completion of any associated rezoning process to maintain consistency (SMA §66498.3). The Pinnacle Ridge Vesting Tentative Map contains no such Condition of Approval; the Resolution as approved by the Council of December 1 approves the Map without restriction or reference to the pending nature of the PUD rezoning. Given the circumstances and the legal requirements, I believe the Map will have to be renoticed and reapproved via Resolution. If that action precedes the PUD rezoning taking effect, the Map Resolution will need to reflect the provisional language described above. If the second Map vote occurs after the second reading of the PUD ordinance and after the 30 day window, then no such additional language would be necessary. Citations: Petaluma Municipal Code; Title 20 Subdivisions 20.04.030 Guidance from general plan and zoning ordinance. The general plan for the city shall guide the use of all land within the corporate boundaries of the city. The size and design of lots, the nature of utilities; the design and improvement of streets; the type and intensity of land use; and the provisions for any special facilities in any subdivision shall conform to the land uses shown and the standards established in the general plan, the zoning ordinance; and any precise plans designed for the area. (Ord. 1785 NCS §1; 1990: Ord. 1046 NCS §1 (part), 1972: prior code §22.1.301.) 20.18.070 Development consistency with zoning. Whenever a subdivider files a vesting tentative map for a subdivision whose intended development is inconsistent with the zoning ordinance or general plan in existence at that time; the city shall deny such a vesting tentative map. (Ord. 1643 NCS §3 (part); 1986.) California Subdivision Map Act 66498.3. (a) Whenever a subdivider files a vesting tentative map for a subdivision whose intended development is inconsistent with the zoning ordinance in existence at that time, that inconsistency shall be noted on the map. The local agency may deny a vesting tentative map or approve it conditioned on the subdivider, or his or her designee, obtaining the necessary change in the zoning ordinance to eliminate the inconsistency. If the change in the zoning ordinance is obtained, the approved or conditionally approved vesting tentative map shall, notwithstanding subdivision (b) of Section 66498.1, confer the vested right to proceed with the development in substantial compliance with the change in the zoning ordinance and the map, as approved. (b) The rights conferred by this section shall be for the time periods set forth in subdivisions (b), (c), and (d) of Section 66498.5.