The Sebastopol City Council meeting on Tuesday night was dominated by a single subject: whether or not to approve a 39-unit development for the former Mormon Church property at 8100 Valentine.
The room was packed with unhappy neighbors hoping to block the project that the Planning Commission had warned them three weeks ago was virtually impossible to stop.
Thanks to legislation meant to increase the amount of housing built in California, cities have lost the ability to apply almost any planning or permitting constraints on housing developments, unless the development poses a serious threat to the health and safety of the community — and the bar for that is very high.
The project subdivides the 2.69-acre lot into 20 parcels and puts a small main house and a smaller ADU on each lot. Thanks to AB 1033, which Sebastopol opted into in January of this year, the developer can sell each unit separately.
As consulting Associate Planner John Jay explained on Tuesday, the state’s Density Bonus law allows a development that makes 10% of its units “affordable” to request waivers and concessions from local zoning requirements. “This project [meaning Valentine] qualifies for one concession and an unlimited number of waivers,” he said.
The developer is using their single concession to get out of fully complying with the City’s tree protection ordinance, which means they can remove more trees and site homes closer to the base of the remaining trees than would normally be allowed. Fifteen of the 19 heritage trees on the property will be removed.
The table below shows in pink the zoning rules for which the project was granted waivers because the development didn’t meet the local requirements.
After Jay’s presentation, Rob Toste, a senior project manager for the developer, Grupe Investment Company, explained the changes the company had already made to the Valentine development because of input from neighbors at a public meeting in March and from the planning commission. These changes included a more attractive and varied design, larger replacement trees and native plants, and, crucially, moving the two-story main homes away from the property line to ease the visual impact on the neighboring homes bordering the development.
The original plan had two-story main houses and ADUs staggered along the northern edge of the property. This approach had two advantages—the varying heights of the buildings along the property's main driveway made it more visually interesting from inside the development and also required fewer trees to be cut down. Toste warned at the Planning Commission that removing this stagger so that none of the two-story main homes on the north side were close to the property line would require the removal of more trees. But so many neighbors complained about the prospect of two-story houses looming above their back fences that, at the council meeting, Toste introduced an alternative site plan that put a line of single-story ADUs along the northern edge of the property.
When the presentations were done, the council peppered the developer and the city’s planning staff with questions. Zollman didn’t like the design of the project’s driveway—a hammerhead for emergency turnarounds rather than a U-shaped drive that would provide two entry and exit points.
In public comment, neighbors continually hit at this point as well, wondering not merely how fire engines would turn around but how the people in the development would be able to evacuate in case of an emergency. (Toste said there would be a small alleyway for emergency exits). Gold Ridge Fire Chief Dave Bray said a U-shape would be his preference as well, but that hammerhead meets the state Fire Code’s minimal standard.
Councilmember Neysa Hinton, noting that the developer kept mentioning how affordable these homes would be, asked how much these units would go for.
With the proviso that the price might change, Toste said, “Right now, the price range that we are assuming in our model is for the smaller 750-square-foot ADUs to be in the low 600s,” meaning the low $600,000s. “The 1,000-square-foot ADUs are in high 600s. The single-family 1,400-square-foot plan is in the low 700s, and the 1,600-square-foot plan is in the high $700s.”
Another sticking point was the trees. The original plan retained 11 trees, while the new alternative site plan retained only three. The proposed removal of almost all of the 19 heritage trees was a concern to both the neighbors and several councilmembers, particularly Councilmember Sandra Maurer.
Looking at the project’s “Environmental Review Consistency Checklist,” Maurer noted, “It says there are no project-specific effects which are peculiar to the project…However, the alternate proposal is going to cause a loss of 16 of 19 protected heritage trees. Is that not an effect?” she said incredulously.
A heritage tree under the Sebastopol Municipal Code is defined as one with a trunk at least 20” in diameter. (The measurement, oddly, is taken at “breast height” or 4.5 feet above the ground.)
Attorney Alex Mog replied that, “Under CEQA regulations, an impact is not peculiar if it is mitigated by the application of the city’s uniform standards.” The developers are complying with the city’s tree mitigation ordinance, which involves planting two small trees for every tree removed or paying a $75-per-tree tree-removal fee.
“The loss of 16 heritage trees as a concession—that is pretty much a failure of state law of protecting heritage trees. Just because you replace them with two box trees, you can’t replace these beautiful 40- to 60-inch heritage trees.”
Mog agreed. “We used to have the ability to deny a concession if it would have … an environmental impact. Within the last five years, the legislature amended Density Bonus Law to remove that language.”
This detail was emblematic of the larger threat hanging over the council’s decision—namely, that recent changes to state housing law have made it almost impossible for cities to stop or even demand significant changes to new housing developments without getting sued.
Zollman made this explicit, asking Mog, “Can you walk us through what you stated here would be the significant legal risk to the city if we were to actually deny this project tonight?”
“The city has very limited authority to deny it,” Mog said. “So if the city denies it…that is something that the developer could sue the city over, based on the way state law is written and the limits it imposes on us. I think there’s a high chance that they would win and, if they win a lawsuit like that, the city is responsible for their attorneys’ fees as well.”
But developers aren’t the only ones who could sue the city, Mog said. “One thing I would note is that under state housing law in general, interested parties can also sue for violations of housing law. So what you see in a lot of cases is … housing advocacy groups sue instead on behalf of people who could have lived in the housing if it was built.”
There was also a lot of discussion about AB1033, the ADU condominiumization ordinance the council opted into in January of this year on a 4-to-1 vote, McLewis dissenting. The Valentine project would not have been possible had the city not done this. AB1033 lets property owners hive off and sell their ADUs as condominiums. The law was envisioned as a way to help house-poor homeowners pay off their mortgages and stay in their homes, while creating small, super-affordable homes for first-time home buyers and elderly downsizers.
What the majority of the council didn’t foresee—though its critics did—was that developers would use AB1033 to build twice as many saleable units on smaller pieces of property than the law previously allowed—and that the developers, not the homeowners, would reap the profits from those sales.
This is exactly what the developer, Grupe Investment Company, is doing with the Valentine project.
There were 17 public comments, only one of which was in favor of approval of the project. This commenter noted that Valentine would be a good option for elderly downsizers with mobility issues because of the single-level ADUs. He contrasted these with the three-story Canopy development. (Another commenter noted that downsizing to a 750-foot ADU that would cost more than $600,000 didn’t seem like a good deal.)
The vast majority of comments came from unhappy neighbors complaining about the loss of trees—both for the trees themselves and the loss of privacy their removal will cause. Neighbors also brought up the inevitable increase in traffic on Valentine Avenue, the negative impact on property values of surrounding homes, the psychological and physical costs of super-dense development, as well as the development’s impact on water and sewer, fire safety and emergency evacuation. That the city’s experts in Public Works and fire had signed off on these latter three did not assuage the neighbors’ concerns.
There was also the usual chorus of McLewis supporters and critics of AB 1033, who, metaphorically speaking, sang in unison, “We told you so.”
“I told you so” was also the theme of Mayor McLewis’s critique. “So I voted ‘No’ on AB 1033 the first time,” she said. “I expressed concern about the burden on our infrastructure when I voted no. I expressed concern that we didn’t know all the ins and outs of this optional ordinance. It’s not something we had to adopt. Not many places had. I asked if we could create more stringent guardrails around this with the ADUs, and I was denied by everyone. I was called a NIMBY and ridiculed in public comment, saying that I was acting privileged because I expressed concern about ADUs impacting the value of existing homes … I truly believe that the only reason that this development is being pursued is because of AB 1033 … If the developer didn’t have this option, they wouldn’t be doing this. I understand the need for housing. I absolutely do. But I don’t see this as the solution. I don’t see the solution of putting all these ADUs in there, jam-packed-full, taking down all these trees. That’s just not what we’re about here in Sebastopol.”
Phill Carter took the opposite stance. “I like AB 1033. I think it’s important,” he said, noting that he realized that change and density development is hard to get used to. “But you know, I kind of feel like I’m in a country club—and how is somebody gonna let me into this city? How are our kids gonna be able to live in Sebastopol and be able to buy a house … and how are we [the city] going to be able to pay for everything? So when I look at this neighborhood coming in, I see one and a half million dollars of new spending in the city; I see new revenue that’s going to be able to pay for the streets, to be able to pay for the sewer. I see 40 more people paying for water and sewer into our enterprise funds. So when you say, like, ‘Hey, we don’t need this,’ I strongly believe that we don’t have this type of housing … and when the trees grow up, these houses won’t feel any different than the houses that you have now around you.”
He agreed that he didn’t love the design of the development but said, “That’s not my job. I mean, these are the developers. They’re coming in to spend money to build out a new neighborhood. It’s their job to figure out what sells. My job is to make sure that there are people—new families—that are coming into town to support our schools, that our businesses aren’t shutting down because we’re not getting to the stores, that we have a northern part of the community that’s vibrant and active, and this will be a genuinely good part of it.”
Carter’s speech was accompanied by gasps and cries of incredulity from the neighbors.
Zollman and Hinton both indicated that they felt forced to approve the development because they were afraid that otherwise the developer would sue the city.
“They will not drop this … and we will be sued,” Zollman said. “So then we’ll end up spending everyone’s tax dollars defending a lawsuit that apparently, according to Alex, the case law split on, so we’ll probably end up losing. So the developers in this case are really atrocious, and karma will come, I’m sure, in your direction,” he said, looking at Toste.
The hour was getting late, but Councilmember Maurer wasn’t done fighting. She used her council comment to go over the site plan and fight for trees, lot by lot. She noted that on Lot 13, they could save a redwood if they shrunk the ADU, putting in the 750 sq. ft. model instead of the 1,000 sq. ft. ADU.
Mog reminded her, “You can ask the developer if they're willing to accommodate this request. We cannot require them to decrease the density of their project by removing buildings.”
Toste agreed to shrink the size of that one ADU. Maurer made two other suggestions, which he rejected.
Councilmember Hinton spoke last. “The state has really tied our hands,” she said. “We also, as elected officials, have a fiduciary responsibility to protect the city’s financial resources. While I understand the neighbors are here tonight, I’m elected to represent 7,200 people that live in Sebastopol, and just signing up for a lawsuit when California has restricted local authority, this would expose the city, and as Alex already mentioned, we would have to pick up attorney fees if we lost. So, just considering everything, I just can’t. I can’t vote to deny this project, based on years of sitting on this council and knowing what would happen. Basically, the city’s litigation exposure would be huge.”
In the end, the council voted 3 to 2 to approve the Valentine project, with Maurer and McLewis dissenting.
After the vote, the neighbors walked out into the night. Although she understood why the council voted the way they did, neighbor Janet Lundgren was fuming.
“I feel like they had a gun put to their head,” she said, but that didn’t make her feel any better about their decision.
“I feel violated,” she said. “I don’t know how else to put it. This is wrong.”