Pinole's Pinole Vista Development

The Pinole Municipal Code specifies a process for establishing, constructing, reconstructing, altering or replacing any use of land or structure in the City of Pinole. In the case of this particular project, where an existing retail structure is proposed to be demolished and replaced with a residential structure, the City requires the applicant to go through a “comprehensive design review” process. The comprehensive design review is intended to provide a process for consideration of development proposals to ensure that the design and layout of commercial, retail, industrial or institutional uses, or multi-family residential development will constitute suitable development and will not result in a detriment to the City of Pinole or to the environment. Because multifamily housing is a permitted use on the site under the City’s Zoning Code and Three Corridors Specific Plan, a conditional use permit is not required for this particular project. The purpose of comprehensive design review process is to evaluate the design and layout of the proposed project, and not the proposed use.

The comprehensive design review process begins when an applicant submits an application to the City. The City has 30 days to review the application for “completeness,” where Planning Staff determine if the submitted plans are in compliance with City policies contained in the General Plan and City standards and requirements contained in planning documents such as the Specific Plan and/or Zoning Ordinance. Plans are evaluated against objective standards the City maintains, such as, but not limited to, maximum height of buildings, minimum number of parking spaces, and required distances buildings are to be setback from the street. City Staff will consult with other departments as appropriate to ensure compliance with all provisions of the Municipal Code and other adopted policies and plans. After City Staff notifies the applicant in writing of items that are needed to make the application complete, the applicant makes changes to their project to make the application complete. This cycle continues until the application is deemed complete by Staff.

In the case of this particular project, an additional permit is required based on the scope of work proposed. This project includes the removal of eight “protected” trees. Protected trees are select trees with a stem of 12 inches or larger in circumference measured four and a half feet above the natural grade or any other tree with a stem greater than 56 inches in circumference measured four and a half feet above the natural grade. The list of select trees includes Coast Live Oak, Madrone, Buckeye, Black Walnut, Redwood, Big Leafed Maple, Redbud, California Bay and Toyon. Removal of protected trees in association with a development application requires review by the designated review authority and conditions of approval that would require replacement trees to be planted on-site with the new development, or an in-lieu fee paid to the City equal to the value of the protected trees removed. The in-lieu fee would support the installation or replacement of trees in city parks or open space or other areas of benefit to the City.

Other approvals required include an Affordable Housing Regulatory and Density Bonus Agreement. This agreement describes a number of elements, including but not limited to, the number, location, structure and size of the proposed market-rate and affordable housing units, the income levels to which each affordable unit will be made affordable, and the term of affordability for the affordable units. The Affordable Housing Agreement is reviewed by the Council only after entitlements are approved.

After acceptance of a complete application, the project is reviewed in accordance with the environmental review procedures of the California Environmental Quality Act (CEQA). In the case of this particular project, where an existing retail structure is proposed to be demolished and replaced with a residential structure, the applicant was required to provide a number of reports including, but not limited to air quality, greenhouse gas emissions, biological constraints, tree conditions, archaeological resources, geotechnical issues, stormwater control, noise and vibration assessment, and traffic analyses. The City contracts with an environmental consulting firm (at the applicant’s cost) to prepare the CEQA analysis, utilizing the environmental reports. To evaluate environmental impacts from the proposed project.

Staff will then agendize the project on the designated approving authority’s meeting agenda for review and action (approval or denial). Typically, the Planning Commission is the designed approving authority for comprehensive design review, however, in cases where there is a request for a concession under a “Density Bonus Request,” the City Council is the designated approving authority. City Staff will prepare a report (the staff report) to the designated approving authority describing the project and it’s consistency with City codes and requirements, along with a recommendation to approve, conditionally approve, or deny the application.

City Staff then provides written notification of the hearing (meeting details such as time, place and scope of review) through a variety of methods such as a mailed notice to property owners within a certain distance of the project site, newspaper notice, and noticing on the project site.

During a public hearing, the designated authority will receive a presentation from staff on how the project complies with City codes and regulations. Then, the project applicant will have an opportunity to give a presentation. The designated review authority may ask questions of staff and the applicant. Next comes an opportunity for public comment, where the public will weigh in on the project. Finally, the designated review authority will make comments and will have an opportunity to take action (approve, conditionally approve, or deny) on the application.

If the designated review authority approves the application the applicant would then prepare construction drawings and apply for a building permit. The building permit would be reviewed against the requirements of the California Building Code and California Fire Code to ensure compliance with those regulations.

The applicant conducted a virtual community meeting on July 29, 2021. The Applicant sent notices to all property owners within 1,000 feet from the project area. The community meeting was attended by 16 people. The majority of public comments were related to the size and scale of the project. There were also comments from the public regarding the loss of the commercial use on the site. The applicant took all of the names of the people who attended and reached out to them throughout the process.

The Planning Commission reviewed the project at their regular meeting of July 25, 2022.   A Density Bonus has been applied for by the applicant. The Municipal Code provides that whenever a project is requesting concessions under the Density Bonus Law, the City Council is the decision-making authority for all required permits for the project. Therefore, the Planning Commission’s role in this project was to make a recommendation to the City Council, and the Council will consider action on all entitlements. The Planning Commission, by unanimous vote (6-0) adopted Resolution 22-05 recommending the City Council to approve a Comprehensive Design Review, Tree Removal Permit, and CEQA Determination of a Notice of Exemption for the Pinole Vista Project located at 1500 Fitzgerald Drive.

In their recommendation of approval, the Planning Commission had several questions, comments, recommendations, and modifications to the conditions of approval. Staff has prepared responses to each Planning Commission area of concern, as shown in Table 1 of the October 18, 2022 Council Report.

Entitlements and approvals required for the project include Comprehensive Design Review, Tree Removal Permit, Density Bonus Request, Affordable Housing Regulatory and Density Bonus Agreements, and a California Environmental Quality Act (CEQA) determination. Pursuant to PMC Table 17.10.060-1, the Planning Commission has approval authority of the Comprehensive Design Review, Tree Permit and CEQA determination. However, PMC Section 17.38.080 provides that whenever a project is requesting concessions under the Density Bonus Law, the City Council is the decision-making authority for all required permits for the project. In addition, the City Council has approval authority over the Affordable Housing Agreement, which is necessary to ensure that the affordable units required by the City’s inclusionary housing ordinance and the Density Bonus Law are provided and maintained for 55 years. The Affordable Housing Agreement will be reviewed by the Council only after entitlements are approved. Accordingly, the Planning Commission’s review was a recommendation to the City Council regarding the proposed project, and not a final decision. Final decision on the entitlements rests with the City Council. Because multi-family housing is a permitted use on the site, a conditional use permit is not required.

The proposed apartment building contains five floors of residential units. The ground floor level includes three major lobby areas and tenant amenities/ facilities including a fitness center, a leasing office, mailboxes, restrooms, storage for up to 160 bicycles, lounge/café, and access to two courtyards. The proposed unit mix on the ground level is five studios, 16 one-bedroom, 12 two-bedroom, and 4 two bedrooms plus office units. All the exterior units on the ground level have private patios that are 258 square feet. Levels Two through Four include a mixture of eight studios, 21 one-bedroom, 14 two-bedrooms, and four two-bedrooms plus office units. Level Five includes a mixture of seven studios, 20 one-bedroom, 14 two-bedroom, and four two-bedroom plus office units.

Open space is provided with two outdoor courtyards, benches and a fenced play area with picnic tables on the southern boundary of the project. The project also has a seating area in the lounge in the front of the property facing Fitzgerald Drive, and a rooftop common open space area on the northeast side of the building facing Fitzgerald Drive. Courtyard A will include a fire pit, seating, barbeque and a water element.  The open space component for this project has been enhanced with the following updates, pursuant to Planning Commission comments focused on play areas for children:

• In Courtyard B, the applicant is proposing a Mobius climber six panel climbing wall and an age-appropriate Motion play structure.
• In the fenced play area on the southern boundary of the project the applicant is proposing a new discovery path, a TimberCraft net climber, and a TimberCraft play frame play structure.

Additionally, the applicant is proposing to install four EV charging stations and conduit for 28 EV parking stalls in the front row of parking stalls adjacent to the building.  The applicant has indicated that as more EV charging stations are warranted, they will be installed at a later date. It is anticipated that additional EV charging facilities will be provided for this project based on the 2022 Triennial California Building Code update which will go into effect January 1, 2023. The Building Code will dictate the minimum requirements for installation of EV charging facilities on site, which is based on 275 on-site parking spaces^[1].  The proposed project will be subject to the requirements of the 2022 Building Code if a building permit application is submitted on or after January 1, 2023. It is unlikely that the applicant will be able to prepare the necessary plans for permit submittal prior to that date.

In recent years, the California Legislature has adopted or strengthened a number of laws intended to facilitate the development of new housing. These laws significantly restrict, or completely remove, the discretion of cities when reviewing certain residential projects within their jurisdiction.

The State Density Bonus law provides special multiple incentives to project that include affordable housing units. First, projects that provide affordable units are entitled to “bonus units” that allow the project to include more units than would otherwise be allowed by a city’s adopted density requirements. The greater the percentage of affordable units in the project, the greater the percentage bonus a project is entitled to receive, with the specific percentages established by state law.

In addition to a density bonus, the State Density Bonus law provides projects with “concessions.” An applicant may use a concession to reduce or eliminate any specific site development standards, zoning code requirements or architectural design requirements, or any other requirement that would result in identifiable and actual cost reductions. An applicant is entitled to between 1-4 concessions based on the percentage of affordable units in the project. In addition, projects are automatically entitled to reduced parking requirements even without the use of any concession. Finally, density bonus projects are also entitled to “waivers”. An applicant may use a waiver to reduce or eliminate any standard that would physically prevent the project from being built at the density allowed (with the density bonus units included).

In addition to the Density Bonus Law, the Housing Accountability Act prohibits a city from denying, or reducing the density of, any project that complies with all of the City’s adopted objective standards. Conditions imposed on the project must not make the project infeasible. Under state law, a project complies with an adopted objective standard if that standard has been reduced or eliminated pursuant to the Density Bonus Law.

The City may only deny the use of a concession or waiver under the Density Bonus Law or deny or reduce the density of a project that complies with all adopted objective standards if the City can make very specific and narrow findings that the project would cause a “specific, adverse impact upon the public health or safety” that cannot be mitigated.  A “specific, adverse impact” is defined under state law as “a significant, quantifiable, direct, and unavoidable impact, based on objective, identified written public health or safety standards, policies, or conditions as they existed on the date the application was deemed complete.”

To encourage the production of affordable housing, the State Density Bonus Law (Government Code Section 65915) allows developers to receive a density bonus of up to a 100% increase for projects, depending on the amount and level of affordable housing provided. The Density Bonus is a state mandate, and any developer who meets the requirements of the State Law is entitled to receive the density bonus and other benefits as a matter of right such as waivers/reductions. A more detailed discussion involving the density bonus, waivers/reduction in City Standards, and incentive/concessions can be found on pages 17-21 of the July 25 Planning Commission Staff Report¹ (Attachment C of this report.

REVIEW & ANALYSIS

This section of the Staff Report supplements the Analysis Section, starting on page 12 of the July 25 Planning Commission Staff Report¹ (Attachment C of this report) and will summarize the project’s consistency with the general plan, specific plan, and zoning ordinance. Detailed analysis is provided in the Planning Commission Staff Report. This section of the Staff Report will also analyze the Planning Commission’s review of the project and changes that were recommended to be made to the project and conditions of approval by the Planning Commission at their regular meeting of July 25, 2022.

Information has been requested on the fiscal impact of the proposed project on the city. See the October 18, 2022 staff report to City Council for references to Attachments. 

The city has obtained two analyses of the project’s fiscal and/or economic impact for informational purposes. An economic impact study was prepared by the applicant’s consultant (Attachment C, Exhibit E), and a fiscal impact analysis was prepared by a consultant retained by the city (original July 22 report provided in Attachment C, Exhibit F; updated October 3 report provided and provided in Attachment G of this report).  

The Kmart building has been located at this site since the 1980’s. From 2016-2019 the Kmart revenues dropped 45 percent and the store closed in early 2019. At this point in time, the property owner has not indicated any ability and/or interest in obtaining a new “big-box” tenant or redeveloping the site for new commercial uses. Based on trends that have been occurring with retail development, medium size box stores (60,000 square feet – 95,000 square feet) have been replaced with either big box stores (120,000 square feet to 200,000 square feet) or smaller niche sizes, similar to the existing shops within the Pinole Vista Shopping Center.

The two studies are attached for reference. While the two studies have some overlap, they have somewhat different focuses. The fiscal impact analysis that was prepared by The Natelson Dale Group (TNDG) looked at City revenues and costs related to the proposed project (residential) and compared to the impacts that would result if the existing structure were re-tenanted with retail commercial uses. The economic impact study provided by the Applicant considers broader economic impacts such as construction jobs. Although there is some fiscal analysis of City revenues, there is no information in the Marin (Applicant) study regarding costs expended by the city. Due to questions from the Planning Commission regarding cost of service, TNDG obtained additional information from the Police Department and explained the rationale of service calls as well as industry standards of how costs are assigned and revised the report accordingly. TNDG will be available at the hearing to answer questions about the fiscal analysis.

It is important to note that the project’s fiscal impact is not a valid basis to deny a density bonus concession or the project itself, or to impose conditions of approval, under either state housing laws or the City’s comprehensive design review requirements.

The California Environmental Quality Act (CEQA) provides several Categorical Exemptions which are applicable to categories of projects and activities that the Lead Agency has determined generally do not pose a risk of significant impacts on the environment. The proposed project consists of development within the developed urban area of the City of Pinole. The project is exempt under Section 15332 of the State CEQA Guidelines (Class 32-Infill Development Projects), Sec. 15168 (Consistency with Program EIR) and Sec. 15183 (General Plan/Community Plan Exemption), and under Government Code Section 65457 (Consistency with Specific Plan). The detail of these exemptions is in Attachment C, Exhibit B of this report.

Pursuant to California Government Code Sections 65090 to 65094, public notice must be given at least 10 days before the scheduled date of the hearing. The notice is required to state the date, time and place of the hearing, identify the hearing body, and provide a general explanation of the matter to be considered. Notice of this hearing was provided in accordance with PMC Section 17.10.050 in the following manner:

1. Published in a least one newspaper of general circulation in the City.
2. Mailed to the owners of property within a radius of 300 feet of the exterior boundaries of the property involved in the application.
3. Mailed to the owner of the subject real property or the owner’s authorized agent and to each local agency expected to provide water, sewerage, streets, roads, schools, or other essential facilities or services to the proposed project.
4. Posted at City Hall.
5. Mailed to any persons who has filed a written request for notice.

Additionally, due to the size of the project, Staff provided additional notification/community engagement enhancements in the following manner:

1. Requiring a virtual community meeting hosted by the applicant (occurred on July 29, 2021.
2. Enhanced written notification for each hearing (7/25 Planning Commission and 10/18 Council) including:
   1. Increasing the radius of notification from 300 feet to 1500 feet, which increased the number of property owners in the vicinity who received notice from 44 to 448
   2. Providing an increased notification time period, from the standard 10 days in advance of the hearing to 21 days.
   3. Requiring the applicant to install large 4’ X 8’ signs in two key locations at the property letting the public know about the application and upcoming hearing opportunity in advance of the hearing.
3. Build out of an individual development project website with project information, plans, studies and hearing information, developed and maintained by City Staff.
4. Staff use of social media and/or the City’s bi-weekly Administrative Report to notify public of upcoming development and link to project specific pages.