Measure T, the 2002 Hill Protection Initiative

June 17, 2005

SUBJECT: Appeal of Planning Commission action on PLN2005-00058

Honorable Mayor Wasserman and Councilmembers,

As proponents and supporters of Measure T, the 2002 Hill Protection Initiative, we are forced to appeal the Planning Commission decision on PLN2005-00058, the Sandhu home above Mission Boulevard in Niles. This appeal is to the Planning Commission action of June 9, 2005, but it is based on the action of the commission taken on May 28, where they approved the application based on findings to be adopted on June 9.

The Planning Commission, on May 28, chose to approve the application over the staff recommendation to deny. Because the findings prepared for the meeting did not support the commission action, the issue was continued for two weeks so that appropriate findings and conditions could be prepared to support the commission action. This appeal letter was drafted based on the project approved by the commission. At the June 9 meeting, revisions were made to the project approved on May 28 which were not part of the published agenda and for which there was not opportunity for public review before the meeting. In fact, one commissioner did not see the proposed changed project until one hour before the meeting. We are still not sure what project was approved. There is no grading plan, no fire department position on access and water, no staff analysis of the adequacy of the access road, and no clear understanding of the water tank situation. We believe the Planning Commission has abrogated their responsibility to be the approving agency for this project and, in so doing, has removed the public from the process from this point forward. Because of this decision to approve and delegate the remaining actions to staff, we are forced to appeal at this point even though the project is still undergoing staff review. Some of our concerns may have been addressed by the modified plan, but we cannot be sure.

We do not take this action lightly and, in fact, have a great degree of sympathy for the position in which Dr. Sandhu finds himself. We believed the issue of this home had been resolved last year and that the implementation steps of Measure T would have been completed before the home returned for staff and commission review. The delay in implementation, caused primarily by the Commission action to seek peer review, coupled with staff delays leading to that point, have caused this untenable position where the initiative, which should have been implemented in a year, has taken 2 ½ years to date with no end in sight.

We agree with the Planning Commission that Dr. Sandhu is a fine physician and we also agree he has waited a long time to get to this point. Unfortunately, these are not the issues upon which the application should be judged. This is a planning matter, a matter that transcends personalities or abilities.

We must also remind the public, the commission, and the applicant what the council already knows. Measure T is not an idea or a concept. It is not a narrowly held set of restrictions or impediments to development. It is not the property of the proponents. It is, rather, a specifically written set of restrictions on development in the Hill Area. It is the law of the City of Fremont which cannot be changed without placing it before the voters at an election. Measure T was adopted by 21749 votes, a 57.6% favorable vote, far more than any candidate received that year and more than almost any candidate has ever received in the year in which we elect a Governor. It is the duty of the City of Fremont and of the City Council to honor and respect the will of each of those voters.

Measure T clearly states policies and direction for development in the hills and it leaves little opportunity for the Planning Commission or the City Council to interpret the initiative in a manner contrary to the polices and direction in the measure. As we review the various grounds for the appeal, we ask that you keep that fact in mind.

The city planning staff has done a far better job of detailing the reasons for the appeal than we might. The staff recommended denial of the project was based on specific conflicts with Measure T and the commission action flies in the face of the facts and the logic of the staff recommendation. The specific grounds for this appeal are as follows:

Access across a slope of 30% or greater. Measure T, as did Measure A, the 1981 Hill Initiative, prohibits access across steep slopes. Neither measure equivocates on the matter. It does not say, or mean, 'up a 30% slope' as argued by the applicant's representative. It says directly what it means: no access across a slope of 30% or greater. The slope of the hill where the applicant proposes to place his access road is 35%. Neither Measure T [1] nor Measure A permits the use of that road for access and permitting it is a direct violation of the will of the people.
There are many reasons for this prohibition, mostly engineering and design problems, but the primary one in this case is the visual scarring of the face of the hill as the road traverses the hill. The fire access road which is there now is roughly graded to permit access by 4 wheel drive rangeland fire apparatus. Larger apparatus designed to fight a structure fire or to bring emergency medical aid to the site requires a wider, more carefully designed and constructed road. In any regard, the road must be designed and constructed to allow heavy fire equipment to pass over it without danger of road failure and possible danger to fire personnel and apparatus, with a minimum width required is 20 feet. The applicant's engineer stated the road would meet city standards by simply being paved over. Staff suggests otherwise, but the issue is truly moot since the road traverses a 35% slope and Measure T strictly forbids such encroachment.
Development prohibited on hilltops. Measure T specifically bans structures built on hilltops. It does not equivocate. Measure T defines hilltops specifically and there is no interpretation required. This structure is designed to be built on a hilltop and, in accordance with Measure T, cannot be built as designed. Pushing the structure back off the peak of the hilltop still infringes on this restriction and the finding adopted by the commission ("...because the definition of "hilltops" is not defined by Ordinance.") does not obviate the requirement of Measure T[2]. The structure, as approved will project into the visual plane of the hill top. To approve such a design would be illegal and, again, a direct violation of the will of the people. It must be noted that project approved by the commission on June 9 lowers the elevation of the house on the hill by less than 11 inches!

Visibility from public places. The house as approved by the Planning Commission will be visible from much of Niles, from Mission Boulevard, from Quarry Lakes Regional Park, and from other nearby locations. Measure T requires design action to minimize such visibility. No such action seems to have been taken on this project. Again, this is a direct violation of Measure T.

Three water tanks at the 410 feet elevation level. The most recent set of findings and conditions direct there be no above ground water tanks, mandating underground tanks. We choose to leave this paragraph for your edification so you might understand the impacts of the original plan. We will discuss the underground tanks below. The water tanks are mentioned several times in the May 28 staff report, but they have not been discussed in any detail. They will be 8 feet high and contain 10,000 gallons of water. Calculations of an 8 foot cone holding 10,000 gallons of water (7.47 gallons per cubic foot) results in a tank diameter of 14.5 feet. Three tanks total more than 43 feet of structure width, which is 8 feet high, a greater mass than some buildings, all on the face of the hill. These tanks will have significant grading issues and will be visible from a greater area than will the house. The issue of underground tanks creates a whole series of problems which the Planning Commission has ignored or overlooked. Clearly, they must be higher on the hill than the house, but that would put them directly on the face of the hill. Burying them on the hill face would scar the hill and would alter the stability of the hill face, making it less resistant to erosion and geotechnic events. The placement and design of this water system cries out for a public review, but the commission action removes the possibility of a public discussion of this aspect of the project.

Grading and impermeable surface. The May 28 project requires approximately 4000 yards of grading in a sensitive area and results in more than an acre of impermeable surface. Both are excessive for a hill area and connote a lack of concern for the sensitive conditions of this natural hill area. These figures are estimates at this point and will most likely be greater after considerations of the design are complete by city staff. Unfortunately, on June 9, the commission had no preliminary grading plan or site drainage plan before them, yet they approved an unseen plan by delegating it to the staff for review and approval. Engineering staff present at the commission meeting stated they had insufficient data to evaluate the grading, the road, or the efficacy of the turnaround on the property (necessary for the fire equipment.) It is the responsibility of the Planning Commission to approve the grading plan.[3]

Retaining Walls. As designed, this project will most likely require significant retaining walls where the road crosses the 35% slope, beneath the water tanks sitting high on the hill, and in other locations where the house is situated. There is long-standing city policy restricting the use of retaining walls in the hills and providing severe limitations on their height when they are permitted. Our concern is the monumental size which might be required making them visible from large areas of Fremont. These retaining walls alone should be cause for rejection of this project.

Environmental Review. The project was approved under a mitigated negative declaration: a statement by the City that it could have no significant environmental impacts. There is not sufficient evidence to support this conclusion. Indeed the evidence is to the contrary. The project violates general plan policies and is likely to have significant impacts, including those from grading, storm run-off, and visual impacts as well.

As previously stated, the staff report for the Planning Commission meeting of April 28 details in greater detail most of the issues we raise. We urge the City Council to uphold this appeal and deny the project. Such denial will permit the City Council to proceed with the implementation actions for Measure T in a timely manner and permit the applicant to consider those actions should he elect to proceed with a modified design.

Alternatively, the applicant could accept, as staff has recommended, that there is no way to build on this parcel without violating Measure T (or Measure A, for that matter.) He could then invoke the Measure's "savings" clause and gain approval for a single 10,000 square foot home in the least intrusive available site, in accordance with Measure T's generous minimum development standard. Allowing a 10,000 square foot home in the hills cannot, by any stretch of the imagination, be called a "taking" of the applicant's property. (City staff identified a site (location 4) where a 10,000 square foot house could be built without violation the 30% slope criterion, but the applicant rejected it.)

Failing this, the council might consider simply returning this matter to the Planning Commission for reconsideration after council action on Measure T implementation is complete. This action could result in additional delay for the applicant which may not be acceptable.

On behalf of the residents of Fremont who care deeply about our hills, thank you for your leadership and stewardship in protecting this unique and special feature of our city. We are dedicated to this cause because once the hills are gone, they are gone forever and we become no different from those cities around us who have lost their hills. We urge your favorable action on this appeal.

THIS APPEAL IS FILED BY SEVERAL GROUPS AND ORGANIZATIONS CONCERNED ABOUT HILL PRESERVATION AND DEVELOPMENT ISSUES. THEY ARE:

PROPONENTS OF MEASURE T, THE 2002 HILL PROTECTION INITIATIVE

James and Susan Gearhart, Richard Godfrey, Paul Knight, Lorna Jaynes

PROPONENTS OF MEASURE A, THE 1981 HILL PRESERVATION INITIATIVE (COMMITTEE TO PRESERVE THE HILLS)

Gus Morrison, Jean Holmes, Stuart Guedon, Donna Olsen, Judy Zlatnik

FREMONT AREA LEAGUE OF WOMEN VOTERS

TRI-CITY ECOLOGY CENTER

Signature sheets will be appended to this document.

[1] No building may be located on a site that has access over a slope of thirty percent (30%) or more. (Measure T, Section 8c.)

[2] Structures may not be located on ridgelines or hilltops, or where they will project into the visual plane of a ridgeline or hilltop, as viewed from public roads, trails, or other public places... (Measure T, Section 8d.)

[3] Indeed, all the Commission had before it in approving the use permit and preliminary grading plan were some rough sketches made by the applicant's architect, and at least one commissioner had only received these a few hours before the meeting.