REPORT TO THE CITY COUNCIL
FROM: JENNIFER CLARK, Director
Planning and Development Department
THROUGH: ASHLEY ATKINSON, Assistant Director
Planning and Development Department
BY: ROB HOLT, Supervising Planner
Planning and Development Department
SUBJECT
Title
HEARING to Consider an appeal regarding Tentative Parcel Map No. 2023-13 and related Environmental Assessment No. TPM 2023-13 for approximately 2.76 acres of property located on the northeast corner of North West and West Olive Avenues (Council District 3) - Planning and Development Department.
1. ADOPT an Environmental Assessment No. TPM-2023-13 dated February 6, 2024, a determination that the proposed project is exempt from the California Environmental Quality Act (CEQA) Guidelines through a Section 15315/Class 15 Categorical Exemption.
2. DENY the appeal and UPHOLD the action of the Planning and Development Department Director in the approval of Tentative Parcel Map No. 2023-13 authorizing the subdivision of approximately 2.67 acres of property into a two-lot subdivision, subject to the following:
a. Development shall take place in accordance with the Conditions of Approval for Tentative Parcel Map No. 2023-13 dated July 3, 2024.
Body
RECOMMENDATIONS
Staff recommends that the City Council take the following actions:
1. ADOPT Environmental Assessment No. TPM-2023-13 dated February 6, 2024, a determination that the proposed project is exempt from the California Environmental Quality Act (CEQA) Guidelines through a Section 15315/Class 15 Categorical Exemption.
2. DENY the appeal and UPHOLD the action of the Planning and Development Department Director in the approval of Tentative Parcel Map No. 2023-13 authorizing the subdivision of approximately 2.67 acres of property into a two-lot subdivision, subject to the following:
a. Development shall take place in accordance with the Conditions of Approval for Tentative Parcel Map No. 2023-13 dated July 3, 2024.
EXECUTIVE SUMMARY
Tentative Parcel Map No. 2023-13 was filed by Keith Jolly of Morton & Pitalo, on behalf of Todd Sheller of Lyles Diversified, Inc., and pertains to approximately 2.76 acres of property located on the northeast corner of West Olive and North West Avenues. The applicant proposes a two-lot subdivision of the subject property.
On February 6, 2024, the Planning and Development Director approved Tentative Parcel Map No. 2023-13 based upon the project’s compliance with the required findings for Tentative Parcel Maps pursuant to Fresno Municipal Code (FMC) Section 15-3309 (Exhibit F).
Fresno City Planning Commission Action
On August 21, 2024, the Planning Commission considered an appeal of the item as presented by staff, followed by a presentation by the applicant. Staff’s presentation included an overview of multiple meetings that had been held between the applicant and City staff prior to the hearing, and discussion of conditions that had been removed or clarified. Staff presented two required conditions of approval that remained, both related to off-site improvements:
• Upgrades to sidewalks to comply with minimum ADA standards.
• Installation of two streetlights along East Olive Avenue.
After a complete hearing, the Planning Commission voted to uphold the decision of the Planning and Development Department Director to approve the project and deny the appeal. The Planning Commission Resolution is attached (Exhibit L).
On August 23, 2024, and August 27, 2024, respectively, Todd Sheller of Lyles Diversified, Inc. (applicant) and Councilmember Miguel Arias (District 3) filed appeals of the Planning Commission’s decision (Exhibits B and C).
Staff recommends upholding the Director’s approval based on substantial evidence in this staff report that shows the tentative parcel map requirements are consistent with the requirements of the FMC and with the applicable policies of the Fresno General Plan and Downtown Neighborhoods Community Plan.
BACKGROUND
The subject property is currently a developed site with office buildings surrounded by urban uses. Adjacent to the north and east are office uses and a mini-storage facility; adjacent to the west is the public facility for the California Department of Transportation (Caltrans) District 6; and adjacent to the south across West Olive Avenue is Roeding Park and the Fresno Chaffee Zoo.
Analysis of the Appeal Letters
On August 23, 2024 and on August 27, 2024, respectively, Lyles Diversified, Inc., and Councilmember Miguel Arias (District 3) each submitted a letter to the Planning and Development Department requesting an appeal of the Planning Commission decision for approval of Tentative Parcel Map No. 2023-13.
Below is an analysis of the issues raised in the appeal letter dated August 23, 2024 (Exhibit B).
Issue #1: In addition to the legal concerns with the recent US Supreme Court ruling on the proportionality of the City’s Conditions of Approval commensurate with the City’s authority with land use impacts, with no other improvement, this is not an active development project as interpreted by City staff. The Conditions of Approval appear to completely disregard that the existing parcel(s) are fully developed with no further improvements.
Staff Response:
The recent US Supreme Court ruling the applicant is referencing is Sheetz v. County of El Dorado, California, where on April 12, 2024, the US Supreme Court ruled that the “Takings Clause” enshrined in the Fifth Amendment of the US Constitution applies equally to legislative and administratively imposed land use permitting fees. The ruling was in relation to the County of El Dorado requiring a condition of approval of a traffic impact fee ($23,420) for a building permit to build a prefabricated home on the owner’s property.
This ruling was specific to impact fees, and not to public improvement requirements placed on projects. The conditions of approval for this project are specific to the construction of required off-site improvements. Furthermore, it has been confirmed by the City of Fresno Public Works Department that development impact fees would only apply to this property upon a change of occupancy and/or additional development, which is not proposed.
Staff’s response as it relates to the disregard of existing fully developed parcels is explained in the “Analysis of Previous Appeals” section below.
Below is an analysis of the issues raised in the appeal letter dated August 27, 2024 (Exhibit C).
Issue #1: The appeal letter dated August 27, 2024 (Exhibit C) requests that the Fresno City Council explore the applicability of provisions of the State Subdivision Map Act, Fresno Municipal Code, City policies, and City of Fresno Standard Specifications related to public improvements and Tentative Parcel Maps.
Staff Response:
The City Council will explore the applicability of provisions of the State Subdivision Map Act, Fresno Municipal Code, City policies, and City of Fresno Standard Specifications related to public improvements and Tentative Parcel Maps during when the item is being discussed with City Council.
HISTORY OF THE PROJECT
Meeting with Applicant
Staff held a meeting with the applicant on August 1, 2024, to discuss the remaining requirements applicable to the project, which consist of streetlight and sidewalk requirements. Specifically, the installation of two streetlights consistent with Public Works Standards along West Olive Avenue is required. Additionally, various locations of sidewalk along West Olive, North West, and West Hedges Avenues are required to be repaired to ADA Standards. The applicant discussed three items during the meeting.
Issue #1: The applicant asked if any Public Works Department fees applied to this project.
Staff Response:
The Public Works Department confirmed that development impact fees will not apply to the tentative parcel map, and would only apply upon new development and/or a change of occupancy.
Issue #2: The applicant stated that the nexus for requiring improvements is when new development is proposed.
Staff Response:
FMC Section 15-3311.C.3 (Conditions of Approval, Mandatory Conditions) states, “The Review Authority shall adopt conditions of approval that carry out the specific requirements of Article 38 (Improvements and Security).” Within Article 38, FMC Section 15-3802 states, “The subdivider shall construct or cause to be constructed all on-site and off-site improvements required as a condition of approval of any Tentative Map, Parcel Map, or other division of land subject to the provisions of this Subdivision Ordinance or the Map Act according to the standards approved by the City”. The required on-site and off-site improvements of a Tentative Map or Parcel Map are specified under FMC Section 15-3804, which include sidewalks (FMC Section 15-3804.B) and street lighting (FMC Section 15-3804.M).
The nexus for the improvement requirements of the proposed tentative parcel map comes from FMC Chapter 15, Articles 33 and 38; therefore, the nexus for the required improvements is the subdivision itself, and new development is not required to impose said requirements.
Issue #3: The applicant stated that the Subdivision Map Act (SMA) allows the Director to waive conditions of approval for tentative parcel maps, citing the appeal letter sent to staff.
Staff Response:
The appeal letter references SMA Section 66428(b) which states, “A local agency shall, by ordinance, provide a procedure for waiving the requirement for a parcel map, imposed by this division, including the requirements for a parcel map imposed by Section 66426…In any case, where the requirement for a parcel map is waived by local ordinance pursuant to this section, a tentative map may be required by local ordinance.” This section relates specifically to the requirement for the filing of a parcel map (also known as “final parcel map”) which is a separate and distinct process from a tentative parcel map. Thus, the SMA section provided by the appellant does not allow the Director to waive conditions of approval for tentative parcel maps, which is the application under review.
Analysis of Previous Appeals
(1) Staff received two appeals of the Planning and Development Department Director’s decision of approval of Tentative Parcel Map No. 2023-13. That analysis was brought forth to the Planning Commission on August 21, 2024, and is provided below:
Issue #1: FMC Section 15-3202 identifies requirements tied to four or fewer parcels. This applies to the applicant’s single parcel but does not apply to any reinstatement of a lot line. Simply, this is a division of land to create another parcel with improvements.
Staff Response:
FMC Section 15-3202 defines Tentative Parcel Maps and Parcel Maps. Specifically, FMC Section 15-3202. A.1 defines a Parcel Map as “Parcel Maps, as authorized by the Map Act (Section 66428; four or fewer parcels).” The proposed project is to legally subdivide one existing parcel into two parcels, resulting in the requirement for a Tentative Parcel Map.
Reinstatement of lot lines is allowed under SMA Sections 66451.30 through 66451.33 (Unmerger of Parcels). This section of the SMA does not apply to the project and thus, an application for a Tentative Parcel Map is required for the subdivision of one parcel into two parcels.
Issue #2: FMC Section 15-3202 further identifies requirements for a Waived Parcel Map that must meet requirements in compliance with FMC Section 15-3503, which specifically states that a waiver may be granted in compliance with SMA Section 66428, provided that the Director shall first find that the proposed subdivision complies with all applicable requirements of this Development Code and the Map Act as to area, improvement and design, floodwater drainage control, appropriate improved public roads, sanitary disposal facilities, water supply availability, environmental protection and all other applicable requirements of this Development Code and the SMA.
SMA Section 66428(b) specifically states that a “local agency shall, by ordinance, provide a procedure for waiving the requirement for a parcel map, imposed by this division, including the requirements for a parcel map imposed by SMA Section 66426.” SMA Section 66426 only applies to creating five or more parcels and thus, does not apply to our situation.
The exact wording of FMC Section 15-3503 whereby the ordinance shall require a finding by the legislative body [“Director”] that the proposed division of land complies with the requirements of improvement, etc. Thus, the City’s requirement to provide a procedure for waiving the requirement of a parcel map is a closed-loop circle of no formal completion or action item. Therefore, using both SMA Section 66428(b) and the corresponding FMC Section 15-3503, the applicant needs to note the importance of our specific request for a lot line reinstatement that has no improvements tied to it. It is imperative to note that that a waiver may be granted based upon the Director’s review that our lot line, in this specific case, does not fit into the broad SMA or FMC sections.
Staff Response:
SMA Section 66426 defines allowances of a parcel map with five or more parcels under subsection (b), but also cites other subsections that apply in addition to subsection (b). Subsection(a) states, “Local ordinances may require a tentative map where a parcel map is required by this chapter. A parcel map shall be required for subdivisions as to which a final or parcel map is not otherwise required by this chapter, unless the preparation of the parcel map is waived by local ordinance as provided in this section…”. Pursuant to subsection (a), a parcel map is required when a subdivision is proposed with four or less parcels. The project proposes the subdivision of an existing parcel into two parcels, applying the requirement for an application for Tentative Parcel Map.
Furthermore, the City of Fresno does provide a procedure for waiving the requirement for a parcel map, by an ordinance adopted by Council (Ordinance Bill No. 2015-39, effective January 9, 2016), under FMC Section 15-3503.
Issue #3: As identified previously, the original February 6, 2024, conditions of approval noted several inconsistent requirements that do not provide a logical connection to the revised May 21, 2024, conditions of approval for a lot line reinstatement such as:
• Right-of-way acquisition.
• Street dedications and/or vacations.
• Frontage improvement requirements.
• Olive Avenue improvements.
• West Avenue improvements.
• Hedges Avenue improvements.
• Traffic Signal Mitigation Impact Fees.
• Fresno Major Street Impact Fees.
• Regional Transportation Mitigation Fee.
• Requirement of street trees.
• Compliance with street lighting.
• Water and sanitary sewer fees.
The city’s revised requirements further stipulate that “existing driveway approaches which no longer provide access to approved vehicle parking areas shall be removed unless otherwise approved by the City Engineering. The work shall be complete and accepted before a Permit of Occupancy is issued or the building is occupied per FMC Section 13-211.” As must be restated and clarified; the buildings are occupied. These are existing offices. The lot line was previously in place. There are no improvements.
Fundamentally, beyond the inconsistencies of city staff’s use of the SMA, the city has focused attention on FMC Article 38 (Improvements and Security). While the applicant agrees that this section should certainly be used for improvement projects, they have “no” improvement plans or “proposed installation of improvements” because they are simply asking to reinstate a previous lot line for existing office buildings. Thus, by definition, all the proposed city requirements for improvements should be disregarded and not apply to the applicant’s lot line reinstatement.
Staff Response:
As previously explained above, the proposed project requires an application for a Tentative Parcel Map and does not apply to the unmerging of parcels (i.e., “reinstatement of a lot line”). That said, FMC Section 15-3804.Q does provide exceptions to requiring improvements for parcel maps as follows:
1. When property is divided solely because of acquisition of lands by governmental agencies for public projects, purposes, or improvements, only the parcel or parcels so acquired need to be provided with the improvements or be the basis for payments required by Subsection B.
2. The improvements and payments required by this shall not be required on or in front of any undeveloped portion of a net acreage of 10 acres or more which exists after the division of land.
3. The improvements and payments required by Subsection B are not required in whole or in part or in front of any parcel of more than four or less than 10 net acres which exists after the division of land, whenever the City Engineer in his or her discretion determines that the omission of all or part of the improvements will not be materially detrimental to the public welfare, safety, or convenience, will not adversely affect the rights of adjacent property owners or occupants, or be injurious to property or improvements in the area, and that the installation thereof would be premature in relation to the public needs of the present and immediate future.
The subject property is not being divided solely because of acquisition of lands by governmental agencies, thus the first exemption does not apply. The subject property is not undeveloped; thus, the second exemption does not apply. The subject property is not more than four or less than 10 net acres in size, thus the third exemption does not apply.
Section 66411.1 of the Subdivision Map Act states, “Notwithstanding Section 66428, whenever a local ordinance requires improvements for a division of land which is not a subdivision of five or more lots, the regulations shall be limited to the dedication of rights-of-way, easements, and the construction of reasonable offsite and onsite improvements for the parcels being created…”
FMC Section 15-3308. A.2.f (Decision, Tentative Parcel Map) requires that upon approval, conditional approval, or disapproval of a Tentative Parcel Map, the Director shall impose conditions of approval in compliance with FMC Section 15-3311 (Conditions of Approval). FMC Section 15-3311. C.3 states that the Review Authority shall adopt conditions of approval that carry out the specific requirements of Article 38, Improvements and Security.
As described above, the appealed conditions of approval are requirements within FMC Article 38 (Improvements and Security), as previously analyzed, and thus are mandatory conditions of approval. It should be noted that existing water service and meters are adequate to serve the existing development, but any future development requiring additional services or larger meters will require the applicable fees as provided in the Department of Public Utilities memorandum dated November 21, 2023.
FMC Section 15-3311.D provides for the Review Authority to provide optional conditions of approval, which include any fees or charges related to the transportation impacts. This would apply to the requirements of the Public Works Department, Land Planning Section memorandum dated May 21, 2024, with the TSMI, FMSI, and RTMF. Public Works staff confirmed that the subject property, as developed currently, does not require any fees under the TSMI, FMSI, and RTMF. Any possible future development, reconstruction or demolition may require fees under the TSMI, FMSI or RTMF.
Based on discussions with the applicant and staff, applicable improvements required prior to recordation of a Final Parcel Map are street light requirements, a four-foot (4’) path of travel of behind driveway approaches, and replacement of any existing sidewalk or curb ramps that are not in conformance with current ADA standards.
Appeal Letter
On August 23, 2024, and August 27, 2024, respectively, Todd Sheller of Lyles Diversified, Inc. (applicant) and Councilmember Miguel Arias (District 3), each submitted a letter to the Planning and Development Department requesting an appeal of the Planning Commission’s decision of Tentative Parcel Map No. 2023-13 (Exhibits B and C).
Notice of City Council Hearing
The Planning and Development Department mailed notices of this City Council hearing to all surrounding property owners within 1000 feet of the subject property, pursuant to FMC Section 15-5007 (Exhibit G).
Land Use Plans and Policies
The Fresno General Plan provides goals, objectives, and policies to guide development. As proposed, the project will be consistent with the following Fresno General Plan goals:
• Make full use of existing infrastructure, and investment in improvements to increase competitiveness and promote economic growth.
The following are applicable objectives and policies from the Urban Form, Land Use & Design, and Economic Development elements of the Fresno General Plan:
• Objective ED-1: Support economic development by maintaining a strong working relationship with the business community and improving the business climate for current and future businesses.
Downtown Neighborhoods Community Plan
Upon reviewing the policies contained in the Downtown Neighborhoods Community Plan, staff has determined that there are no policies that are applicable or are more restrictive than those contained in the Fresno General Plan or the FMC.
Fresno County Airport Land Use Compatibility Plan
The proposed project is located within the Airport Influence Area under the Fresno-Chandler Executive Airport within the Fresno County Airport Land Use Compatibility Plan. The project site is located within the Fresno Chandler Executive Airport’s Safety Zone 6 - Traffic Pattern Zone. Listed uses that include hazards to flight are prohibited in Traffic Pattern Zone 6, which generally include buildings over 100 feet in height. All existing buildings on the subject property are one story and less than 100 feet in height, which is less than the minimum height required to be considered a hazard. Therefore, the proposed project is compatible and in compliance with the Airport Land Use Compatibility Plan.
ENVIRONMENTAL FINDINGS
The California Environmental Quality Act (CEQA), Public Resource Code Section 2100 et. seq., permits a public agency to determine whether a particular project is exempt from CEQA. A determination of a Categorical Exemption from Section 15315/Class 15 was made and Environmental Assessment No. TPM-2023-13 was completed for this project on February 6, 2024 (Exhibit J).
CONCLUSION
The appropriateness of the proposed project has been examined with respect to its consistency with goals and policies of the Fresno General Plan and the Downtown Neighborhoods Community Plan; compliance with the provisions of the FMC; its compatibility with surrounding existing or proposed uses; and its avoidance or mitigation of potentially significant adverse environmental impacts. These factors have been evaluated as described above and by the accompanying environmental assessment and exhibits. Staff concludes that the required findings contained within FMC Section 15-3309 et seq. can be made. Upon consideration of this evaluation, it can be concluded that the proposed project is appropriate for the project site.
LOCAL PREFERENCE
Local preference was not considered because this project does not include a bid or award of a construction or service contract.
FISCAL IMPACT
Affirmative action by the Council will result in timely delivery of the review and processing of the application as is reasonably expected by the applicant. Prudent financial management is demonstrated by the expeditious completion of this land use application inasmuch as the applicant has paid to the City a fee for the processing of this application and that fee is, in turn, funding the respective operations of the Planning and Development Department.
Attachments:
Exhibit A - Tentative Parcel Map 2023-13 [10-24-2023]
Exhibit B - Appeal Letter [8-23-2024]
Exhibit C - Appeal Letter [8-27-2024]
Exhibit D - Operational Statement [10-24-2023]
Exhibit E - Aerial Map
Exhibit F - Fresno Municipal Code Findings
Exhibit G - Public Hearing Notice Radius Map (1,000 feet)
Exhibit H - Conditions of Approval for Tentative Parcel Map 2023-13 [7-3-2024]
Exhibit I - Comments & Requirements from Responsible Agencies
Exhibit J - Environmental Assessment TPM-2023-13 [2-6-2024]
Exhibit K - Support Letters
Exhibit L - Planning Commission Resolution No. 13682
Exhibit M - PowerPoint Presentation