Vagueness in Development Code Trips Up Housing Project
- William Fulton
- Jan 18, 2022
- 3 min read
Every single word in your development code counts. Take, for example, the extended controversy in the City of Santa Cruz over 1930 Ocean Street Extension, a project that would build eight fourplexes on hilly terrain near the San Lorenzo River. The project’s been in litigation for years – in part because of the potential impact of a nearby crematorium – but the latest battle basically comes down to this: Do the city’s Planned Development Permit rules require the developer to go through a process to modify slope regulations for the project or do they exempt the developer from that process? A Superior Court judge said one thing and now an appellate court has said the opposite. The project is proposed on a 2.74-acre property that has slopes of up to 30 percent. The developer originally proposed 10 fourplexes but the City Council reduced the project to eight fourplexes. The city’s Planned Development Permit process is intended, according to the Fourth District Court of Appeal, “to allow creative and innovative design to meet the public interests more readily than through application of the conventional zoning regulations, which are more cumbersome. The PDP process permits up to 10 “variations” from the city’s regular zoning, including variations from building standards, street standards, and lot coverages. But variation number 9 allows variation from “slope modifications, pursuant to procedures set forth in Chapter 24.08, Part 9 (Slope Regulations Modifications)”. Santa Cruz’s typical slope regulations require no structures within 20 feet of a 30-percent slope. Hence the confusion. Does the municipal code allow variation from slope modifications that are otherwise pursuant to the Chapter 24.08, Part 9, as the city contends? Or does it allow variation only within the context of the procedures set forth in Chapter 24.08, Part 9, as neighbors contend? Santa Cruz County Superior Court Judge Paul Burdick admitted the language was confusing, but eventually he sided with the neighbors against the city’s argument. Part of the confusion appeared to be the wording of the development code, but part of the confusion also appeared to be whether any new parcels were being created as part of the project. At the final court hearing, he finally said: “So long as there is no building sited within 20 feet of a 30 percent slope, there is no violation of the zoning ordinance. And that’s the intent of my ruling.” But the Fourth District disagreed, reversing Burdick and ruling in favor of the city. “Had the City intended PDP applicants to comply with the slope modification requirements, it would have achieved that result simply by omitting slope modifications as an area of variation available through the PDP process,” wrote Acting Presiding Judge Richard Huffman for a unanimous three-judge panel. The court also ruled that, though a tentative map was approved to permit possible future condo sales of the 32 units, no new “lot” was created in the process. The appellate court also rejected a wide variety of claims under the California Environmental Quality Act. The CaseOcean Street Extension Neighborhood Association v. City of Santa Cruz, No. D079064 (filed December 16, 2021, published January 13, 2022). The Lawyers For Ocean Street Extension Neighborhood Association: Babak Naficy, babaknaficy@sbcglobal.net For City of Santa Cruz: Anthony P. Condotti, Atchison, Barisone & Condotti, tcondotti@abc-law.com For Richard Moe (developer): Christopher L. Stiles, Remy Moose Manley, cstiles@rmmenvirolaw.com