As the Vanguard reported on Friday, city staff is recommending that the Davis City Council reverse the actions of the Davis Planning Commission taken on June 14, arguing that the Planning Commission “did make an error” in approving the appeal filed by neighbors of the project, in denial of that project.
After reading the staff report and having some behind-the-scenes conversations, I am left with the belief that, at the very least, the Planning Commission finding was in error and maybe that error goes so far as abuse of process.
This is a fairly serious charge. At the very least, you have a case where the Planning Commission failed in their duties and responsibilities. They made no ruling as to the zoning requirements.
At the outset, I want to make it clear that this is a process-based question – ultimately I am not sure whether I am in support of the B Street project, as I believe there are legitimate concerns expressed by the neighbors on a number of issues, but those should have been addressed by the City Council not the Planning Commission.
The City Council has final determination and they have the authority to set new guidelines. In fact, they have the authority, even if they uphold the original approval of the project, to modify the conditions as deemed appropriate.
They also have the ability “to deny the application without prejudice which would allow the applicant to substantially amend the proposal and submit a new application for reconsideration within one year of the denial.”
However, these are questions and issues that the council and not the Planning Commission has the authority to make.
The Planning Commission is not a policymaking body – it is a body whose job is to make sure that proposed projects comport with existing policies of the City Council. As it states on their webpage, the Planning Commission “[d]etermines the consistency of any project with the general plan using the criteria approved by the City Council.”
I would argue that, in this case, the project with, one minor exception, meets the zoning requirements. This should have been an easy vote for approval and if the neighbors had appealed, which they probably would have, the council could take up the concerns raised by the neighbors.
Again – I think the neighbors have legitimate concerns, however, the Planning Commission should have the duty to follow zoning guidelines.
As the staff report for Tuesday notes, comments made by Commissioners supporting the appeal are summarized as follows:
- The project does not fit in with the neighborhood.
- Need to encourage developers to take into account the existing neighborhoods in which they are developing.
- Mass and scale are not mitigated in this neighborhood.
- Does not fit across the street from single-family homes.
- There are other examples of beautiful infill projects, no reason for developer to max out the site just because he can.
- Support some type of multi-unit on this site, here, but developer should work on a project more compatible with the neighborhood.
- Need more housing, but in other areas of town, not push it into existing neighborhoods.
Staff points out that “some Commissioners stated that the project should have been brought before the Planning Commission with a pre-application to provide guidance to the developer. Commissioners commented that if the project had not been approved administratively, the developer may have offered a project more compatible with the neighborhood.”
However, staff writes that they believe “the administrative processing of the application was procedurally correct, and in accordance with the authority specifically granted to the Community Development and Sustainability Director under the Municipal Code.”
As staff notes, “The project complies with existing City Zoning requirements with one allowable Minor Modification for an increase in allowable height above the established 38 feet. Less than approximately 15% of the proposed building rises to a maximum of 41’.6”.”
Based on this, the Planning Commission should have approved the project. The neighbors then could have appealed it to the City Council. The council is the proper body to determine the policy issues laid out by the Planning Commission.
Particularly troubling is the note that, while the city needs more housing, it needs to be “in other areas of town, not push it into existing neighborhoods.” Where else are you going to put housing in Davis other than in existing neighborhoods?
Furthermore, “Increasing housing density in the neighborhoods, particularly those areas zoned R-3 (as this site is) is the stated policy of the City of Davis, as identified in the Housing Element Adopted by City Council February 25, 2014.”
Again, the role of the Planning Commission should be to determine whether a given project matches up to current city zoning and General Plan guidelines. This project appears to do that with one very minor exception.
The Planning Commission, in my view, had no legal reason to reject this application.
The question is whether this rises to the level of abuse of discretion or whether this was simply a poor finding on the part of the Planning Commission.
The legal definition of an abuse of discretion describes an administrative agency’s ruling on a matter within its discretion that is – in light of relevant facts and law – arbitrary, capricious, unconscionable, unfair, unreasonable or illegal.
Here I would argue that the determination made by the Planning Commission should have been based on current zoning and infill housing policies. Staff is correct that the project complies with existing city zoning requirements, with one modification – it goes to 41 feet rather than 38 feet in maximum height.
Is three feet difference enough to sustain a denial? This is particularly questionable when the difference is less than 15 percent and therefore can be legally administratively approved by staff.
It is interesting that there was a joint meeting with the Planning Commission and the City Council last Tuesday, because what we appear to need is direction from the council as to what the purview of the Planning Commission actually is.
To me at least, they crossed into a policy-making role on this ruling, rather than simply looking to see if the project complies with current zoning and making a determination on that basis.
—David M. Greenwald reporting