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June 8, 2004 > Measure T (The Hill Area Initiative of 2002) Revisited

Measure T (The Hill Area Initiative of 2002) Revisited

Fremont Planning Commission Gives Permission for Hillside Mansion

According to proponents of "Friends of the Hill Area Initiative," the Fremont Planning Commission committed a huge mistake at their meeting on May 27, 2004 by granting a permit for a mansion to be built on the hills above Quarry Lakes Regional Park. "Story Poles" erected on the hillside to indicate the location of the 16,214 square foot home may appear small and blend with the vegetation, but can the same be said of the proposed structure?

Under the authority of Measure T, the Planning Commission is charged with evaluating the proposed project for conformity with the General Plan, now including Measure T policies. Although discussed at the commission meeting, Measure T concerns were brushed aside by a majority of the members. Adopted in the November 2002 election, the Hill Area Initiative modified the Hill Initiative (Measure A) of 1981, setting strict guidelines for those areas above the "Toe of the Hill" (where the natural grade first becomes 20% or more). The intent of these voter initiatives was to safeguard the Fremont hills from unsightly developments and housing that would detract from the natural landscape. According to the staff Project Description, "The purpose of the CUP (Conditional Use Permit) process is to ensure that the proposed development is consistent with all policies and standards adopted for development in the Hill Area of Fremont.

"Visual Safeguards" of Measure T state that building, if permitted, "shall be required by the City to minimize the visual impact of development." In addition, Section 8 (d) states that structures cannot project into the visual plane of the ridgelines or hilltops as viewed from public roads, trails or other places. The structure is described by the project architect as being located behind a knoll, where the knoll hides the house from public view. Lines of sight used by the applicant are Mission Boulevard and the western end of King Avenue. The "story poles," visible from the entrance to Quarry Lakes, indicate another interpretation. Lighting of the residence during evening and nighttime hours also poses a visual problem when considering the restrictions of Measure T.

Staff expressed concern that the location of the residence, located "behind a knoll," may be inconsistent with the performance standards of Measure T. Measure T mandates that "no building may be located on a site that has access over a slope of thirty percent (30%) or more." The applicant was told that the proposed access, depending on interpretation and application of this policy and provision of Measure T, "may not be consistent with Measure T because it was once (in its undisturbed condition) naturally within land with slopes of 30% or more." The response from the applicant was that alternate locations were not satisfactory for the current design. Whether the residence could be redesigned for a different location was not addressed.

Another point of contention is the extent of grading necessary to "sink" the proposed structure. Although the applicant estimated less than 1,000 cubic yards, staff estimates approximately 1,900 cubic yards. The proposal is to "sink" the building, thus minimizing the height and visibility to be consistent with the primary goal of Measure T. However, aspects of the design create grading that is typically not permitted in the Hill Area. Geologic hazards listed in the staff report include potential slides of slopes surrounding the "saddle" location of the proposed residence

The staff report indicates the serious nature of this decision. It states, "Planning Commission is faced with the challenging role of statutory interpretation of an initiative. In making its interpretation, the Planning Commission should consider the purpose of Measure T as set forth in the text of the initiative."

Staff recommendations were ambiguous listing a choice of approval with public hearings or direction from the commission coupled with public hearings. It appears that the Planning Commission again will be challenged to defend a decision which may be contrary to the will of the voters. The appeal to the city council will be an interesting and vital test of the strength and vision of Measure T.

Stuart Flashman, an attorney specializing in Environmental and Land Use Law has filed an appeal on behalf of the Friends of the Hill Area Initiative and Susan and James Gearhart. In a statement to TCV, Mr. Flashman states, "we're also appealing the PC's [Planning Commission] approval of a negative declaration, because we think the City improperly glossed over the project's significant visual, geological, and soils impacts." He adds that the staff report "shows staff's overall off-hand attitude towards the project's impacts."

The text of the appeal follows:

June 3, 2004

Ms. Lynn Macy, City Clerk
City of Fremont
City Hall
3300 Capitol Ave.
Fremont, CA 94538

RE: Appeal of Goney Sandhu Residence (PLN2004-00235)

Dear Ms. Macy,

This letter constitutes an appeal to the City Council of the Planning Commission's approval, on May 27, 2004, of the above-referenced project and its associated mitigated negative declaration. This appeal is filed on behalf of my clients, James and Susan Gearhart and the Friends of the Hill Area Initiative. A check in the amount of $50 accompanies the mailed copy of this appeal letter. The reasons for and issues in the appeal are listed below.

1) The project approval violated state planning and zoning law in that it was inconsistent with provisions of the Fremont General Plan, as amended by Measure T, The Hill Area Initiative of 2002. More specifically, the approval was inconsistent with the following general plan provisions, all enacted under Measure T.

a) General Plan Policy LU 6.16 (Section 8(c) of Measure T), prohibiting any building from being located on a site that has access over a slope of thirty percent (30%) or more. The Planning Commission staff report acknowledged that the access road for the proposed building site crosses a slope whose natural grade is in excess of 30%. While staff acknowledged that this might violate Section 8(c), the Planning Commission never came to grips with this prohibition. The applicant argued that the prohibition did not apply to a pre-existing road. However, nothing in Measure T allows such a loophole. Indeed, it is clear that one of the purposes of measure T is to restrict or prohibit, to the maximum extent possible, any further development in the Hill Area that would result in the use of areas with steep slopes. The Planning Commission s approval violated this mandatory section.

b) Section 8(d) of Measure T prohibits structures from being located where they would project into the visual plane of a ridgeline or hilltop, as viewed from public roads, trails, or other public places, unless there is no other building site on the parcel. While staff and the applicant did provide the Commission with a few photomontages purporting to show the proposed Project s relatively low visibility from Mission Boulevard and the western end of King Avenue, this is far from synonymous with public roads, trails, or other public places. More specifically, the proposed building site is prominently visible from Quarry Lakes Regional Recreation Area, an East Bay Regional Parks District public park, as well as the public Alameda Creek Trail that runs past that park and the public roadways that surround that park1. The piddling gesture at visual analysis done by staff and the applicant comes nowhere close to meeting the requirements of the Initiative, which require a comprehensive analysis of the Project s expected visual impacts. The Planning Commission had no way of knowing if the Project complied with Section 8(d). In fact, photographs of the story poles taken from ranger station at Quarry Lakes Regional Recreation Center appear to show that it does not. The Project would be plainly visible not merely projecting into but sited precisely upon a hilltop area. It is clear that other possible building sites should have been considered by the Planning Commission.
c) Section 12(b), like Section 8(d) requires detailed consideration of the Project s visual impacts, as seen from public places. For the reasons already detailed above, the Planning Commission failed to adequately consider the Project s visual impacts prior to granting approval. While Section 12(b) is limited by the phrase to the extent practicable , the Commission made no attempt to consider what might be done in modifying either the location or configuration of the Project to reduce its significant visual impacts, notably its visibility from Quarry Lakes Regional Recreational Area and the surrounding trail and streets. Nor did the Commission give any consideration to how landscaping might screen the building or how the building might be redesigned to make it more easily screened and less visually obtrusive. (E.g., the building roof heights could be lowered so that surrounding landscaping would better hide the building; the roof tile color could have been chosen to better blend into the surrounding hillside colors, etc.) Further, neither staff nor the Commission gave any consideration to the visual impacts of nighttime lighting for the Project. All of these should have been duly considered before the Commission came to any conclusion about approving this highly visible project.

2) The Project s environmental review was inadequate. As the above discussion makes clear, the Project will be highly visible and will therefore have significant visual impacts. Therefore, a mitigated negative declaration was inappropriate. Rather, a focused environmental impact report should have been prepared to consider the Project s visual, geological, and soils impacts. Specifically, an EIR is needed to consider mitigation measures and alternative construction sites on the 80 acre parcel that might reduce the Project s overall visual impact, as well as the amount of grading needed and the geological safety of the site. If the visual impacts, as seen from public areas, cannot be reduced to less than significant, that fact should be disclosed to the public through the EIR process before the Project approval is considered.

Most sincerely,

Stuart M. Flashman
Attorney for Appellants Friends of the Hill Area
Initiative and James & Susan Gearhart

cc: H.E. Levine, City Attorney

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