DATE: December 1, 2015
TO: Mayor and City Council
FROM: Director of Development Services
SUBJECT
Title
Appeal of the Planning Commission’s Denial of a Proposed Zone Change from Agriculture (A) to Single-Family Residential (RS B10) for 890 and 900 Calhoun Street; Adoption of a Mitigated Negative Declaration and Mitigation Monitoring and Reporting Program; Aman Pohyar (Applicant/Owner - 900 Calhoun Street), Mr. Servando B. Zepeda (Owner - 890 Calhoun Street)
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RECOMMENDATION
Recommendation
That the City Council grant the appeal by adopting the attached resolution (Attachment I) and introducing the attached ordinance (Attachment II) that adopts the related Mitigated Negative Declaration and Mitigation Monitoring and Reporting Program and approves the Zone Change application from Agriculture (A) to Single-family Residential (RS B10) for 890 and 900 Calhoun Street.
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SUMMARY
Rezoning the two Calhoun Street properties from Agriculture (A) (minimum lot size of one acre) to Single-Family Residential Special Lot Combining District B10 (minimum lot size - 10,000 square feet) would bring the zoning for the two properties into conformance with the Low Density Residential General Plan land use designation (4.3 to 8.7 units per net acre). The Planning Commission denied the application because of opposition from some neighbors who were concerned that the rezone would change the character of the neighborhood. However, staff continues to recommend approval of the zone change to align with the existing General Plan land use designation and because other properties across Calhoun and east of the project sites have similar zoning designations, though such designations allow smaller lots (5,000 to 6,000 square feet) than what is proposed for these two properties. Also, although concerns have been raised by the property owner of 890 Calhoun Street (Mr. Zepeda) that the zone change will raise property taxes and will undermine his ability to keep and maintain livestock, that is not the case.
Mr. Pohyar, the owner of the other property involved with this zone change application (900 Calhoun Street), has appealed the Planning Commission’s decision (Attachment VII), citing that the Commissioners did not consider who was behind a petition opposing the zone change, nor considered the accuracy of the representations made in the petition.
BACKGROUND
History of Properties’ Use/Ownership - Prior to 2006, the properties located at 890, 900 and 1002 Calhoun Street were used for raising livestock. The Mellow Mule Company, a horse boarding business, occupied 900 and 1002 Calhoun Street. The previous owner of 890 Calhoun raised livestock on the property, which was subsequently purchased in 2012 by Mr. Zepeda, who lives on the adjacent property at 886 Calhoun Street (see Attachment V, Figure 1). In 2005, the applicant, Aman Pohyar, purchased 900 Calhoun Street and built his home on the front portion of the lot, which was completed in 2013 (see Attachment V, Figure 2).
Mr. Pohyar purchased the property believing that the property could be rezoned to Single-Family Residential (RS B10), because the underlying General Plan Designation was Low Density Residential (LDR), which allows 4.3 to 8.7 dwelling units per acre. A rezone to RSB10 would allow the opportunity for two homes on the 40,000+ square foot property.
Earthquake Fault Trace Constraints - The property at 900 Calhoun Street (Pohyar) was formerly a portion of a quarry and slopes up toward the rear of the property with a bowl-like gouge cutting through the property. The property also lies within the State Earthquake Fault Zone and a fault trace crosses the extreme northeast corner of the property (see Attachment V, Figures 3 and 4). Habitable structures are precluded from being built within 50 feet of an active fault trace. The property at 890 Calhoun (Zepeda) is 54,450 square feet (1.25 acres) and also lies within the Earthquake Fault Zone, and an approximately located fault trace crosses the middle of the property (see Attachment V, Figure 3).
General Plan and Zoning Designations - As shown in Attachment V, Figures 5 and 6, the adjacent property to the east (1002 Calhoun Street/ Mellow Mule Company) is zoned Open Space/Parks and Recreation SD7 (OS SD7) as well as the property located directly behind 900 Calhoun to the north. Directly behind 890 Calhoun to the north, the property is zoned Agriculture (A). Across Calhoun Street, to the south, the properties are zoned Single-Family Residential (RS). The subject properties are zoned Agriculture and the General Plan Designation is Low Density Residential. The Agriculture (A) Zoning District allows one unit per acre and is not consistent with the LDR General Plan land use designation which allows 4.3 to 8.7 units per acre.
In 1962, 870/878 and 886 Calhoun Street were rezoned from Agriculture (A) to Single-Family Residential B6 (RSB6, 6,000 square foot minimum lot size), which brought the zoning for those properties into consistency with the LDR General Plan Designation. The rezoning of these properties only left 890 and 900 Calhoun inconsistent with the LDR General Plan Designation. Rezoning of the property to RSB10 would make these properties consistent with the LDR General Plan Density.
Planning Commission Meeting of October 15, 2015 - As the attached meeting minutes reflect (Attachment IV), the Planning Commission heard the matter at its regular meeting on October 15, 2015. Several of Mr. Zepeda’s neighbors spoke in support of not including Mr. Zepeda’s property in the zone change due to concerns about undermining his ability to keep livestock on his property and raising his property taxes. A motion was made to support staff’s recommendation, but to exclude Mr. Zepeda’s property from the zone change. There was no second and the motion died for lack of support. A second motion was made that the Planning Commission recommend that the City Council disapprove the proposed zone change. The motion was seconded and the Planning Commission by a vote of 6:1 denied the zone change, citing opposition from the community, including as reflected in submitted petitions.
DISCUSSION
Impacts to Livestock - During the review of the project, two neighbors expressed concerns about the impacts the zone change would have on their ability to keep livestock on their property. Mr. Zepeda, the owner of 890 Calhoun Street, initially agreed to include his property as part of the zone change, but later decided to oppose the zone change because he was concerned about losing his right to keep livestock on his property. Mr. Wilding, owner of the Mellow Mule Company at 1002 Calhoun Street who leases his Open-Space zoned property from the State, was also concerned about losing his ability to board horses. Staff explained the zone change would not have such effect.
These concerns were raised again at the Planning Commission hearing by Mr. Zepeda and several of his neighbors.
Staff again responded that the livestock and structures on both properties are grandfathered; meaning, the zoning regulations allowed them when they were initially established, but subsequent changes to regulations now prohibit them. As such, the zone change would have no impact on the ability to maintain livestock currently kept on the properties. Specifically, the regulations require 20,000 square feet for each large livestock, such as a horse. Mr. Zepeda’s property is 54,450 square feet; therefore, the maximum number of large livestock he could currently have on his property (and could have if the zone change is approved) is two (54,450/20,000=2.72). Mr. Zepeda has five large livestock (four horses and one cow) and therefore, would not be able to add any additional large livestock/horses on his property regardless of the zone change, but could still keep five large livestock on his property indefinitely as a legal nonconforming use. In summary, if Mr. Zepeda wanted to add new structures for livestock or increase the number of livestock on his property at 890 Calhoun Street, he would have to comply with current regulations, which include standards based on property size, not zoning.
Impact to Property Taxes - During the Planning Commission hearing, Mr. Zepeda expressed concerns that his property taxes would go up because of the zone change. In response, staff explained property taxes would not go up because of the zone change, but would increase either due to a change in ownership or as a result of new construction on the property, and even if the new construction occurred, such increase would be limited by Proposition 13.
Impacts to Neighborhood - Concerns were expressed that the zone change would increase traffic and change the rural setting along Calhoun. Should the zone change be approved, besides an additional home potentially being constructed on Mr. Poyhar’s property, it is estimated that two to three homes could be developed on Mr. Zepeda’s property, should he decide to do so. The lots would range from approximately 18,000 to 20,000 square feet and would provide a transition from the smaller 5,000 square foot single-family zoned lots south of Calhoun Street to the larger Agricultural and Open Space/Parks & Recreation zoned parcels to the north and east.
Environmental Review - This proposal is defined as a “project” under the parameters set forth in the California Environmental Quality Act (CEQA) guidelines. Staff has prepared an Initial Study, Mitigated Negative Declaration and a Mitigation Monitoring and Reporting Program <https://hayward.legistar.com/LegislationDetail.aspx?ID=2481807&GUID=9CF500A2-DDBB-4709-A8D7-E00F65D0832A&Options=&Search=> for the project, which indicates there will be no significant environmental impacts resulting from the project provided the mitigation measures are incorporated into the project. The environmental document was made available for public review from September 14, 2015 to October 5, 2015. No comments on the environmental document were received in response.
ECONOMIC IMPACT
The project would allow opportunity for up to an estimated four additional dwellings to be built on the two involved properties in the future. The construction of additional dwellings would generate a small number of construction jobs.
FISCAL IMPACT
The zone change would, by itself, not have a direct fiscal impact. However, should future homes be built as a result of the zone change, such development would increase property tax revenues, but would also create additional demand for public services. Assuming that four additional homes could be built on these properties, a rough fiscal impact analysis of these additional homes shows they would generate $6,900 of new property tax revenue annually, but would annually cost the City $6,608 related to services, for a net annual contribution to the General Fund of $292, which is essentially a neutral fiscal impact. Over time, the property tax revenue, which is limited by Proposition 13 related to an annual maximum two percent property valuation increase, may become less than the escalating costs for delivery of services. However, such increase would be considered negligible and may not exist at all should changes in property ownership occur, where properties would be assessed at market value.
In addition, new park in-lieu fees (currently the fee is $11,953 for each new single-family dwelling) would be paid if new homes were constructed, which would be used for public parkland acquisition and/or park improvements for parks in the area.
PUBLIC CONTACT
On August 13, 2014, a Referral Notice was mailed to every property owner and occupant within 300 feet of the subject site, as noted on the latest County Assessor’s records (approximately fifty properties). In response, Planning staff received one letter, six emails and a petition expressing concerns about the affects the project would have on adjacent properties and livestock, with 48 signatures opposing the rezoning of the property. In general, the petition and other correspondence, some from citizens who do not live in the neighborhood, expressed concern about changing the rural character of the area, losing the ability to keep livestock on the surrounding properties, and increasing traffic. Some also expressed concern with the design and size of the relatively new home at 800 Calhoun Street. Should the zone change be approved, the design of future homes will be required to be assessed via site plan review applications.
On September 14, 2015, a second Notice of Intent to adopt the Mitigated Negative Declaration and Notice of this Public Hearing was published in The Daily Review for 890 and 900 Calhoun Street. The Planning Division has not received any comments from the public in response to that notice.
On October 15, 2015, a Notice of this Public Hearing was published in The Daily Review and a notice was sent to every property owner and occupant within 300 feet of the subject site. The Planning Division received a second petition with 29 signatures opposing the zone change and building additional homes on this property.
On November 18, 2015, a Notice of this Public Hearing was published in The Daily Review and every property owner and occupant within 300 feet of the subject site. No comments in response to such notices were received at the time this staff report was completed.
NEXT STEPS
If the Council approves the project, adopts the resolution and introduces the ordinance, staff will return to Council for the ordinance adoption on December 15, 2015, with future homes requiring site plan review, building permits, geotechnical reports, etc.
If the Council denies the appeal and denies the application, the decision is final. In that case, the Mitigated Negative Declaration and the Mitigated Monitoring and Reporting Program would not be applicable, since projects that do not get approved are not required to have environmental impact analysis.
Prepared by: Carl Emura, ASLA, Associate Planner
Staff contact
Recommended by: David Rizk, AICP, Development Services Director
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Approved by:
Fran David, City Manager
Attachments:
Attachment I Resolution
Attachment II Ordinance
Attachment III Area & Zoning Map
Attachment IV Draft 10/15/15 Planning Commission Meeting Minutes
Attachment V Aerials, Physical Constraints & Land Use
Attachment VI Petitions, Emails & Letter
Attachment VII Proponent’s Appeal Statement