Sunday Commentary: Did the Planning Commission Abuse Their Discretion in Rejecting the B St Project?

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

 

About The Author

David Greenwald is the founder, editor, and executive director of the Davis Vanguard. He founded the Vanguard in 2006. David Greenwald moved to Davis in 1996 to attend Graduate School at UC Davis in Political Science. He lives in South Davis with his wife Cecilia Escamilla Greenwald and three children.

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30 thoughts on “Sunday Commentary: Did the Planning Commission Abuse Their Discretion in Rejecting the B St Project?”

  1. Mark West

    “because what we appear to need is direction from the council as to what the purview of the Planning Commission actually is.”

    The role of the Planning Commission is clearly defined. There is no need for more ‘direction,’ there is a need for the leadership of the Commission (Chair, Vice Chair) to make sure that the Commission stays within its purview.  They failed in this instance (both voting with the majority).

    1. Howard P

      Have you staffed an appointed (by CC) advisory board as part of your employment?  Some very competent professionals in the city have done so (reminding the Commission of their role/limitations)… when they got to the point of feeling bullet-resistant.  Usually they relied on ‘body english’ to communicate with a competent Chair (we had some, sometimes), who would ask staff for ‘education’ on purview.  

      CC members have often thought they were ‘gods’, and would jump down the throats, in a public meeting, of staff who reminded them of the CC’s ‘limitations’… I’d name names, but someone might ‘sue’ me…

      Planning Commiczars, and other Commissioners often consider themselves demi-gods, and behave similarly, to warm up for the time that they might be CC ‘gods’.

      It ain’t easy for a staff member to remind electeds/appointeds of ‘their place’… even diplomatically/factually.  Particularly when you can be rip-sawed by both the public and commiczars, in a public meeting, with streamed video and other media coverage… David didn’t used to understand that, but I believe he is much more cognizant of those dynamics today.  Much to his credit, BTW.

  2. Howard P

    I have a different, if not nuanced, view than Mark.

    It depends on their REASONS for supporting the appeal… if it was based on “vox populi”, rather than codes, policies, and reasonable opinion on “tweeners” (ex., height) they were clearly off-base.  If they reasoned that staff erred on the interpretations, or on the “tweener(s)”, then, that’s what they are there for.

    The PC needs to know the rules and act on those, not what they might wish the rules to be… they are not a ‘rule-making’ body… they are advisory on most matters… if there is a project that meets the rules, but they collectively believe the rules should be different, they should make two decisions/recommendations:  first, does the project comply, yes/no;  should the rules be changed? …they have the right and obligation to let the CC and community know that, and cogently explain how and why.

    Planning by ‘mob rule’ or by fiat, are very, very, very bad.

    I do not pretend to know individual commissioner’s ‘reasons’ for their votes… I do not want to try to “get into their heads”… in the case of a number of them, I’d fear going down into a ‘rabbit hole’ deeper than a Florida sinkhole.

    1. Mark West

      The City’s professional staff determined that the project was consistent with the zoning. There is no indication (from David’s reporting or the Staff Report) that the Planning Commission overruled that determination. If the project fits within the current zoning, the Planning Commission has very little discretion, especially in light of the CA Housing Accountability Act. According to that law, a housing project that is consistent with current zoning may only be denied if it has a “specific adverse impact on public health or safety.” There is no indication that the Planning Commission made that determination either. The end result is that we don’t need to go down the rabbit hole of individual Commission member’s ‘reasons,’ we only need to look at the actions of the Commission majority.

       

  3. Tia Will

    I have a question about the options available to the Planning Commission. Specifically I am unfamiliar with the rules governing communication between commissioners and City Council members in public venue ( if any). If the vote is the only direct means of communication, then it seems there would be only three options : 1. Vote to approve 2. Vote to disapprove 3. Vote one way or the other with explanation of reasoning.

    If commissioners are allowed to speak directly to City Council members or to write them private communications then these concerns that may be in a gray zone have a venue for expression. If they cannot, then they are left with only the formal process left.

    1. Jim Hoch

      “If commissioners are allowed to speak directly to City Council members or to write them private communications then these concerns that may be in a gray zone have a venue for expression.”

       

      Ex parte communications have been source of corruption and favoritism (see coastal commission) and the the reason we have open meeting laws.  The love of lobbyists for “gray zones” is difficult to overstate.

      1. David Greenwald

        Or they can simply approve the project and have staff transmit their comments to council (as they essentially did in the staff report anyway)

        1. Howard P

          Agreed, except in this particular case they upheld the appeal, which denied the project… haven’t seen the CC staff report…

          But, if I read you right, they could have ‘held their nose’, denied the appeal (thereby approve the project) and told the CC why they didn’t like the choice they had.

          Definitely in their purview to say, “we denied the appeal, but we don’t like the rules in place, and here’s how we would like to see those rules changed.”

          I think we are saying basically the same thing…

           

          1. David Greenwald Post author

            “But, if I read you right, they could have ‘held their nose’, denied the appeal (thereby approve the project) and told the CC why they didn’t like the choice they had.”

            Yes that’s what I’m saying would have been proper process. The problem you have now is that you have the Planning Commission denying a project that meets all zoning and other requirements other than being three feet higher than allowed. Their place is not to set policy – as Eileen is arguing for – it’s to make sure that the project adheres to current policy.

  4. Eileen Samitz

    While there seems to be a “pile on” to criticize the Planning Commission, I agree with their decision and they made the right call and for the right reasons. There is no excuse to try to shoe-horn in 11 units onto 2 lots which would bring way too many impacts to the rest of the neighborhood, particularly parking and circulation. Infill is supposed to be compatible with the surrounding neighborhood and this not and is clearly overkill on the number of units that the developers are trying to get approved.

     

    1. Ron

      Eileen:  Too late – the “guilt” (or at least – “incompetency”) of the commission has already/apparently been decided, by the “planning experts” on the Vanguard.  🙁

      Apparently, the only question left is, did they know that they were “guilty”, and then how to carry out the sentence.

    2. David Greenwald

      Eileen – that is the call of the council not the call of the planning commission.  The planning commission’s job is to determine whether a project fits within the current zoning in current regulations. Extending beyond that is an abide of discretion

      1. Tia Will

        The planning commission’s job is to determine whether a project fits within the current zoning in current regulations. “

        This statement then leaves me a little confused about why we are having the conversation at all. As explained, the project did not meet the technical requirements albeit only by a few feet. The commission stated accurately noted that it did not meet requirements, and then added other concerns in their comments. The City Council has the ability to over ride this decision, so the concern is, what ?

        1. David Greenwald Post author

          ” “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”.””

          Is this sufficient grounds for the Planning Commission to deny the application?  And the cited other reasoning that had nothing to do with zoning requirements and some of that reasoning directly contradicted city policy.

        2. Mark West

          Tia – Read the staff report:

          http://documents.cityofdavis.org/Media/Default/Documents/PDF/CityCouncil/CouncilMeetings/Agendas/20170718/08-B-Street-Planning-Commission-Appeal.pdf

          You will learn that:

          “The Planning Commission action did not include, as a basis for the denial, specific findings such as:

          conflict with zoning development standards which allow the building as proposed;

          inadequate parking;

          inconsistency with the principally permitted multi-family use of the site within the R-3-M district;

          incompatibility with other existing multi-family uses within the surrounding area;

          or conflict with the General Plan.”

           

           

  5. Eileen Samitz

    David,

    It is the call of the Planning Commission to determine if the project is compatible with the surroundings, consider traffic and safety issues, environmental impacts plus the developers also were wanting an additional allowance height. There also should be a traffic student done first since all of the parking was removed from B street in that vicinity. This project is so large and come with so many impacts, the traffic and circulation needs to be examined for safety issues. Also, the project is so large and being jammed to fit in that the large oaks on the large beautiful oaks on the perimeter of the project are targeted for removal. Has the Tree Commission weighed in on this project regarding the removal of these mature oaks?

    Furthermore, how are only 13 parking spaces supposed to work for 11 apartments units when there is no street parking? It is ridiculous. None of this is good, infill planning which is to be done to work with the surrounding neighborhood. The infill guidelines were written to guide good infill planning and a good and fair process for all.  It is “shoe-horn” planning for the benefit of the developers, not the community. Plus this project is being rushed through the process. The traffic studies are critical to done first to understand the impacts and for the safety particularly of bicyclists in this busy area. What is the rush? It is more important to get the project right then rushing through a terrible project with so many impacts.

    1. Howard P

      A parking study, maybe (and that is a real ‘stretch’)…  traffic study, no.  There is another commission charged with safety of bikes, peds, etc.  

      Until the community pays for the property, development of any property is not subject to the criteria of “community benefit”. That borders on “unconstitutional”…

      It has been a fair process… folk were noticed about the project, and given an opportunity to comment… staff evaluated the project in light of the facts, codes, and comments, if any were received… folk were noticed of staff’s decision, and folk given the opportunity to appeal… folk appealed… in a public meeting the opponents, proponents, and staff weighed in… PC upheld appeal… proponents appealed that to CC, who will hold a hearing where everything pertinent will be open for discussion.  A decision will be made.  I see nothing “unfair” with the process.

      One definitely correct statement, pertaining to the post… “It is ridiculous”.  True story.

    2. David Greenwald

      “The project meets the parking required for multi-family use. ”

      Once again, you may disagree that that is adequate, but if it meets the parking requirements, then the planning commission doesn’t have the authority to deny the project.  All of these are issues that the council can take up.

  6. Todd Edelman

    This place could be built with a few spaces for ADA, carshare and a few exceptions and nothing, no permits for other cars off-site or in other neighborhoods and the number of applications would still FAR exceed supply. That would mean fewer negative transport impacts.

    There is no reason to cut down any large trees, in part because there is a rarely-used church parking lot immediately to the east of the property.  Seriously, good Christians are going to allow trees to be cut down so that they have parking on Sundays?

  7. Howard P

    Mark (your 6:49 post)…

    You nailed it!  Findings need to be made to approve or disapprove!  Part of the record… have not looked, but original item to PC probably had staff-suggested “findings”… [particularly if there is controversy] (sometimes, to give the body a ‘safe place to land’, staff gives findings for either action)

    Damn good point… had I cared more about this application, hope I would have made the same “good catch”…

  8. Ron

    Kind of strange.  Seen lots of opinions on here regarding the planning commission (and skimmed through the staff report that Mark provided), but haven’t seen any references in this discussion to actual documentation/reports from the planning commission, itself. (Or, analysis of such documentation.)

    Mostly, just a lot of the “usual folks” agreeing with each other. 🙂

    1. Mark West

      Ron –

      The staff report is the documentation/report from the Planning Commission, plus the analysis of that report from our Professional Staff.  That is how the information is reported to the CC (and to you if you ever bother to do more than just ‘skim’).

       

    2. David Greenwald

      As Mark explained, the Planning Commission doesn’t do documentation or reports, the staff takes down their comments and relays it through the staff report to council.

      1. Ron

        Thanks, David.  Your explanation is clearer than Mark’s, and you omitted the accompanying insult that he often provides.  (My “apologies” for not previously knowing exactly how the process works.)

        Darn thing is about 100 pages long.

        Seems kind of strange that staff would essentially paraphrase what the planning commission stated/concluded.  (Especially since there’s disagreement between the two parties.)  I guess that’s the way it works, though.

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