Nevada City council debated an 80-unit affordable-housing project with eight appeals of seven Planning Commission actions, focusing on variances, a lot merger, CEQA, and related procedures. Density transfers are clarified: only two small parcels (4.8 acres total) qualify; the eight-acre parcel does not, and three parcels should stay separate to fit town-scale development and limit costly upgrades (capped at a 25-unit transfer). Public comments raise traffic, water/sewer capacity, health/safety, notice posting, and potential lawsuits, with opinions split between denying variances or keeping the process open and inclusive; concerns about developer litigation and CEQA notices persist. Critics contend the project’s size is economically driven and strains infrastructure and city services, citing a $1+ million mitigation need with no funding source and a procedurally defective negative declaration; proponents call for stronger findings on variances/lot merger and consider redoing CEQA (potentially an EIR). Mixed sentiment favors affordable housing but favors a smaller-scale approach to preserve the city’s character, alongside procedural governance concerns and discussions of outside counsel and Brown Act compliance. The council moved 4-0 to require a revised, less intrusive plan and potential restart of environmental review, sending the matter back to the Planning Commission, with other appeals left unresolved as the meeting adjourned.

Full Transcript of the Video:

[SIDE CONVERSATION] We'll reconvene the meeting at this time.

I point out that our 10-minute recess is based on Nevada City time.

[LAUGHTER] And we will begin the concluding remarks by the appellants.

And we will continue with the method of taking them in the order they are listed on the agenda.

So Mr.
Pemberton, if you would like to step up.

[SIDE CONVERSATION] Good evening once again.

I'm Lee Pemberton, Queen of Little Place.

I've got just a short statement I want to read.

But just to respond to Mr.
Jones' comments and Mr.
Anderson, if I can get your attention for a second.

There's a memorandum dated April 26 that Jim wrote entitled or regarding moderate income housing projects that addresses the government code section 65,500 series, which basically sets forth the basic standards that government agencies must use when making decisions on housing projects.

Mr.
Jones' comments suggest that you don't have much choice but to approve.

And yes, there are limiting conditions.

But Jim's memorandum sets out three such findings that can be used.

But the one thing I wanted to draw attention to is just his concluding paragraph.

And that's to say that there is nothing in the above government code section that requires any local agency to approve a variance if the agency determines that the variance is not warranted.

So just keep that in mind that a key and important part of this whole decision making process has to do with those variances.

And that the code section that Mr.
Jones alluded to, you have some reference from Jim's memorandum that you can refer to.

I've been reflecting on elitism.

Throughout the previous five meetings I've attended regarding this project, there has been some reference at some point about how people opposing this development are quote, "Nevada City elitists.

"
Mostly I've been thinking how it is that what was once considered civic pride or being a concerned citizen or being publicly aware must somehow be part of being an elite.

If that's so, then I'll state for the record that I'm proud to be part of this larger audience tonight, all of whom have taken the time to be participating citizens.

And if that's elitism, I'm for it.

If what I recall about the electoral process is correct, and personally I've not participating in that process since 1972, some things might have changed.

Then these elitists make up a constituency they'll elect, among other representatives, members of the city council.

They're not the only constituents by any means, but if they're interested enough to attend these three nights of hearings, are interested enough to become a pelence, concerned enough to stand in a microphone and overcome the deepest fear known to civilized man, hit public speaking, then chances they also vote.

They probably even campaign and become candidates on occasion.

The city council has the authority and responsibility to appoint city planning commissioners.

Common sense and basic survival instincts, if nothing else, would suggest the commissioners reflect the attitude to the council.

If that's true, then the recent decisions by the commission regarding this project definitely aren't those of a council being controlled by the elitists.

Therefore, as I'm certain you'll be happy to know, you gentlemen are still in control of your destinies insofar as being influenced by these attending elitists who are here tonight.

If the planning commissioners who made up the ARC were under the control of the elitists, as defined by those who must have come up with a notion in the beginning, this project would have never gotten past the ARC, and we probably would not be having this discussion tonight.

I've been trying to have a little fun here, and hopefully the words sound as humorous as I meant them to be.

My intentions, however, are very serious.

There is a discontinuity between the obvious concerns that have been expressed over the past couple of the nights and the actions on the part of some commissioners.

Having said that, I'm not at all comfortable with the idea that this project may be sent back to the planning commission with instructions that an EIR be prepared for the same 80 unit development we've been agonizing over for so long.

We have heard from the applicant that the 80 unit plan has its roots in a scoring process that is essential to its funding or tax credit qualifications.

I'll make one last attempt at clarifying a huge part of the opposition of this project.

It is not that it is an affordable housing, low income or moderate income housing, assisted subdise, or cheap housing.

The concern is that it's just simply too much housing for the size and the condition of the parcel.

Personally, I'm not interested in trying to salvage this project with an EIR.

I want to see it denied by this council for all the procedural reasons I submitted in my appeal, as well as for the very serious limitations of services and impacts that were discussed by the city engineer and other staff at last night's hearing.

There's a tremendous amount of talent and energy in this room.

We have parents of all ages, all of whom have kids, other family members and friends who at one time or another could benefit from a housing mix that would allow low moderate income earners a chance.

We have educators, professionals, artists, writers, small business owners, even a recovering alcoholic like myself who see this effort-- this challenge is one worthy of involvement and participation.

There were some comments made last night during the public hearing about the profit motive-- for, against.

Well, yeah, that old devil profit can speak out of all sides of its mouth.

But there's one thing I know about entrepreneurs that is totally in keeping with the group in this room tonight-- creativeness, energy, and pure stubbornness.

Given a chance to develop some alternatives to the general plan process when the housing element will be updated, there is no reason why Nevada City can't take the responsibility and accountability of dealing with land use and housing issues in a sensible fashion.

The immediate project has too little support from we elitists who are willing to work on something better than for the council to feel any pressure from the applicant that it must be approved or salvaged with an EIR-- and I've just added this-- or by threat of a lawsuit.

Give everyone a chance, and there will be better alternatives developed for the long term.

Thanks.

[SIDE CONVERSATION] Good evening, council and ladies and gentlemen.

I'll try to keep my remarks within the time frame that I'm allotted here.

The last time I spoke to you on Monday night, I think I addressed the architectural review issue, and I think I emphasized the substantive problems I saw with the proposed architecture in this project.

My written appeal had pretty much focused on procedural matters.

But in that vein, let's not forget or be confused about-- and I'm not suggesting you are-- so that we're all clear about what we are here to do tonight.

What I'm respectfully requesting that you do is to deny or reverse-- I'm sorry, reverse the three to one decision of the Planning Commission approving the mitigated negative declaration.

I'm not asking for this body to-- and I'm talking about as it existed on May 10th.

I'm not asking this body to consider what it might have been or could be in the future after listening to this additional presentation by the applicant tonight.

I don't think that's the relevant issue.

I think the issue-- we're here on an appeal of a decision that's already been made.

And the appeal should be considered as to what was before that body when that decision was made.

So in short, I'm asking this body tonight to deny this project.

Not take further study.

We've had plenty of study.

The study should have been done at the lower level.

The study should have been done then.

But we're here now to consider an appeal not to augment their proposal.

So let's be clear on that.

Now I want to just indicate why I think you should take that action.

Nevada City's zoning ordinance 16.

40 is quite unequivocal in its provision that the Planning Commission shall be the Architectural Review Committee for the city of Nevada City.

That means the Planning Commission, all of its members.

That doesn't mean a subcommittee of two and the city planner and staff.

It means what it says on its face.

That procedure was not followed here.

Again, I don't know when the final version of the architectural plan was put before the commission, but certainly, as I indicated last time, the March 2nd application was grossly non-compliant and non-providing of information.

There are mention of several times in the April 19th staff report by city planner mentions that there were some revisions in the architecture.

Those really weren't clearly enumerated, and it appeared quite clear from that memo or a staff report that the review was really going on before this committee of two commissioners and staff, not the entire Planning Commission as is mandated by 16.

40.

So that's a pretty good reason, I think, to overturn the decision that was made here.

And in terms of the quality of the review itself, I think the usual process in the Planning Commission is to take a close look.

A single family residence is subjected to, I think, more scrutiny and review architecturally than this project was before the Planning Commission itself.

There is scrutiny of small details.

And as your graphic in the file shows, I don't think-- maybe there are modifications to that version of this project visually, but they weren't made clear to the Planning Commission, all of the members of the Planning Commission.

And I hear reference to, well, we provided that on May 10 at the May 10 meeting.

Well, the May 10 meeting was the meeting where the decision was made.

So is that reasonable opportunity to review architectural standards the night of the meeting?
No, I don't think so.

I don't think that's what the zoning ordinance calls for.

Requires.

As I've said before, we have a special community.

You know it.

I know it.

Let's deny this project tonight.

Thank you.

Thank you.

Gary.

[SIDE CONVERSATION] Gary Johnson, 210 Drummond Street.

Good evening.

I'd like to thank you for the three evenings of public forum that you've made available for this discussion.

I'd also like to thank the public for the comments that they've put in on this matter.

One thing that really stood out after many hours of public hearings, both at two meetings of the Planning Commission and last night's meeting, was that with the exception of those people with financial interest, not one single Nevada City resident spoke in favor of this project.

These are your constituents that you have been hearing from.

Now, I had condensed my replies to Mr.
Spann's rebuttal from the other evening.

But then I come in here and I find out that their attorney takes additional time for rebuttal.

Mentions my name, mentions my appeal, and he gets a second chance to take a shot at rebutting the appeal.

So I'd condensed my final statement, but I'm going to uncondense it and read some variance items so that they can't be minimized and glossed over.

There are certain things that variances are allowed for.

One of them is special circumstances.

The basic standard under the state zoning law is that a variance may be granted only when special circumstances applicable to the property exist.

Yeah, I think it seems well within everything else that's been presented tonight.

I continue.

Thank you.

In other words, the plight of an applicant for a variance must be due to peculiar circumstances and conditions, and it must be special or unique in contrast with that of other properties owners in the same district.

And we know that 30% slopes are common to Nevada City.

And if we want to get into whether they are man-made or natural, my property, which is adjacent and has the identical zoning, has an area of 30% slope that is hydraulically made.

As far as hardship, it should be pointed out that the economic or financial hardship must apply to a unique condition of one's property and must not pertain to the uniqueness of the plight of the owner, Sakezi and versus City of Sausalito, 1972.

This is proper in that the variance runs with the land.

Allen versus Humboldt County Board of Supervisors, 1966.

Further, self-induced hardship.

It appears to be an established rule that self-induced hardship affords no grounds for a grant of variance, town of Atherton versus Templeton.

And as I said the other night, when you don't own the property, you can't have a hardship.

You're going in there by choice.

I could go on.

I think I'll let that part stand there.

Another new item.

There were a number of new items that were brought up this evening.

A letter for the council that we didn't get to see.

A response to Mr.
Judd's letter.

Negative deck comparison between the prestige site, which is on the right, the maps on the wall, saying that the prestige site negative deck was approved and implying that therefore we should be able to approve the negative deck or that the negative deck was OK or whatever.

The implication was for the 80-unit apartment complex.

But as we can see by looking at them, they're very different in scope.

Let's see.

Other new information.

This is actually something that the developer did not present that was new.

But I think it's very pertinent.

It is from the Auburn Journal dated Wednesday, June 13.

A proposed 80-unit apartment complex.

And I'm going to shorten this.

A proposed 80-unit apartment complex to be built for low-income residents got a $250,000 boost from the Auburn City Council Monday.

Council members voted 4 to 1 to set aside city redevelopment funds for the project, noting that the city has several reasons for wanting the apartments to be built.

Councilman O.

C.

Taylor cast the dissenting vote Monday, questioning why developers didn't request city financial help before the Council and the Planning Commission approved the project.

Isn't it funny-- this is his quote-- isn't it funny how this happens?
Now we have to come up with this $250,000.

He told his council colleagues, how can you justify this?
And I won't read the rest of it, but it just-- I thought that was new information that since the developers have brought up some new information, I could toss a piece in as well since we've slightly changed the plan here.

We've also heard about the blatant use of lawsuits by the developer to try to silence opposition to his projects.

I would encourage you to proceed in the denial of this project without fear of a lawsuit, because Nevada City is worth whatever it costs.

In the worst case, a lawsuit would be far less costly to our city than the cost to our infrastructure if this project were approved.

I encourage you to continue the legacy of past councils and deny all aspects of this project.

Thank you.

Thank you, Mr.
Johnson.

A lot larger.

[LAUGHTER] Oh, yep, you're absolutely correct.

I'm Sally Harris.

I live at 625 Spring Street.

With respect to the lot merger appeal, I want to again clarify the zoning change that took place last April as Mr.
Cogley, the CABPro representative from Paredale, and Mr.
Spann tonight have misspoken on the topic.

Ordinance number 2000-01, adopted by the City Council of Nevada City on April 24, 2000, specifically transfers some density from the American Hill tract of 20 lots to just two of the three parcels proposed to be built upon by this 80-unit apartment complex.

These two lots, now zoned R2SP with the increased density and required affordable housing component, are 2.

1 and 2.

7 acres in size.

The apartment complex proposal includes those two lots, plus a third lot that is in excess of eight acres.

This largest lot of eight plus acres does not have the R2SP special zoning, nor any required affordable housing component.

It is only the two smaller lots totaling 4.

8 acres that have the density transfer and the special zoning.

So again, if you look on the map that Gary's showing, the two smaller parcels are outlined in yellow.

And it is that larger parcel below that is the eight-acre piece.

So it's just those two smaller ones on top that have the affordable housing requirement.

With respect to Mr.
Spann's statement tonight, he said it's a transfer of 56, I believe, was his number, units from the American Hill project over to this project.

That's not correct.

The transfer is 10 if there's just some affordable housing in those two top lots, or it's 25 if all of the units are affordable housing.

So the maximum transfer is 25, not 56.

If we keep all of these lots separate, we have three parcels whose size and setback requirements will lend themselves nicely to be developed to the scale of Nevada City.

And the two smaller lots have the special density allowance that could result in an affordable housing project that would financially pencil out for a developer, as well as be appropriately sized for our town.

In addition to myself, we heard from several people in the public hearings last night who would be interested in volunteering their time to bring good, appropriate, affordable housing to Nevada City.

This cannot be done on a 13-acre parcel.

It's just too big.

We need to keep the three lots separate to facilitate the kind of affordable housing and other projects that fit the size and scale of the town.

On the matter of health and safety, we've heard from our city engineer and police chief.

They have both said that this project will require immediate, significant increases to our water, sewer, and police services.

However, if we keep these three lots separate, the development of them could take place in a staggered fashion over time.

This would likely be manageable from an infrastructure standpoint, as we could continue to make incremental improvements to our health and safety services each year, as we've been doing effectively to date.

We have the opportunity to have three projects that are of a workable and manageable size for our town.

However, once these lots have merged, that opportunity disappears.

We will be inviting a development project of massive proportions.

We heard many people speak during the public hearing last night.

And as Gary said, and I'd like to remind you again, not one Nevada city resident spoke out in support of this project, not one.

Please think about that, and it's time to vote tonight, uphold the appeal on the lot merger, and deny this project in its entirety to give our town a chance to develop these three lots in an appropriate manner.

Thank you.

Thank you.

John?
Thank you, Mayor and Council.

I'm John Daly.

I live at 302 Drummond Street up on American Hill.

And this has been a very interesting and tiring three days for all of us.

We appreciate the effort that you've put in, and I appreciate the effort that the public has put in on this.

It's a very important issue, and it has been important for all the people who've spoken to give their concerns about this project and why they request that you deny this project and deny it tonight.

Everyone has had their say.

Everyone now has all the facts to make a decision.

The people in this audience understand everything.

All of you on the council, all the staff, know what is happening here and have a good understanding of the project and whether or not it should be forward, go forward.

Your decision is a precedent-setting decision.

As the City Council of Nevada City, you are at a landmark point in the life of Nevada City.

You have, actually, in your hands tonight, the heart and soul of Nevada City.

As you make your decision about this 80-unit apartment project tonight, I would like you to seriously consider the following things.

Say yes to a Nevada City that is a distinct city surrounded by green, wooded hills.

Say yes to a Nevada City with an untarnished, scenic corridor.

Say yes to the safety and health of the people in Nevada City with their water and sewer systems uncompromised.

Say yes with your denial of the variance for this massive loss of trees.

Say yes with your denial for the variance for slopismens and unprecedented grading.

Say yes with your denial of the lot merger of these three parcels.

Say yes to the voice of the people of Nevada City.

Say no to the added fire and police impact and the public health and safety issues this raises.

Say no to the huge increase in traffic.

Say no to the overtaxing of our sewer system.

Say no to the added volume and reduced pressure of our water system.

Say no to the 2,500 feet of retaining walls on the site.

Say no to the sudden and immediate 10% increase in the population of Nevada City.

Say no to being forced or intimidated into approval of a flawed project.

And say no to the Nevada County Planning Commission.

And finally, say no to this project right here, right now, tonight.

Thank you.

Thank you, John.

I'm the right person.

Are you?
I don't know.

To be speaking, sorry.

Victor Prusak, 234 American Hill Road.

Council members, city staff, and community members, these past three days, most of us have put in a full day's work to earn a buck, so to speak.

And then three long evenings to give back to our community.

And for that, we all deserve a heartfelt thanks.

We've heard from many on countless grounds on which this project should be denied on all the variances.

These grounds include things under negative decks, such as sewage and water inadequacies, and so many other health and safety issues.

There are also the issues related to CEQA, lack of proper noticing to key state agencies, and adequate posting of ARC meetings.

And for that, I turn once again to our written appeal, not speculation, as counsel like to talk about, not people just speaking well, but an actual written document which he's had plenty of time to look at.

And if you turn to addenda may on page one, we have section 15072, 15105, and 15072d.

First one was 72a.

And I actually am going to read from some of this.

Counsel for HDC alluded-- actually didn't elude.

He mentioned certain agencies that had provided documentation to the city.

And since necessary agencies, or at least some of them did get involved, it leads one to believe that the state clearinghouse, in fact, should have been notified and involved.

And I quote, "Elite agencies shall provide a notice of intent to adopt a negative deck or mitigated negative deck to the public, responsible agencies, trustee agencies, and the county clerk of each county within which the proposed project is located, sufficiently prior to adoption by the lead agency of the negative deck or mitigated negative deck to allow the public and agencies the review period provided under section 15105, now 15105b.

The public review period for proposed negative deck or mitigated negative deck shall not be less than 20 days.

When a proposed negative deck or mitigated negative deck is submitted to the state clearinghouse review by state agencies, as this one should have been, the public review period shall not be less than 30 days, unless a shorter period, not less than 20, is approved by the state clearinghouse.

And finally, the county clerk of each county within which the proposed project is located shall post such notices in the office of the county clerk within 24 hours of receipt for a period of at least 20 days.

"
Our city planner seemed to state that the inadequate posting may have been due to the move from the New York Hotel to City Hall, whatever the reason the posting was not proper.

One other piece of CEQA that we actually don't have listed in the appeal, but it's worth entering into now as council did bring up CEQA tonight, there is a section, section 15280, that deals specifically with low-income housing projects.

And it basically deals with the issues that CEQA does apply in this case.

The fact it's affordable housing has nothing to do with CEQA not applying.

Then there's another issue, which actually until tonight, we hadn't heard much of, and we still haven't heard the council or staff discuss.

But it's one though which must be on your mind, especially after council made it plainly clear on the three possible solutions to tonight.

A potential lawsuit by the developer when you deny the variances, all of them for this project.

After all, and now I refer to the May 14, 1997 Fresno Bee, there's plenty of evidence to believe that if the project is denied that they will sue.

In the Bee, and I quote, "Peter Herzog delivered on a vow he made in March and filed a $27 million lawsuit Tuesday--" yes, that's $27 million-- "against the city of Fresno, five council members, and 12 residents for blocking his development of a Northwest Fresno apartment complex.

The lawsuit filed by Herzog's company, AHDC, is 45 pages long and seeks one of the largest damages for this type of lawsuit, according to his lawyer, William Davis.

"
That's Herzog's lawyer.

Quote, "What makes this case unusual is the damages are huge," Davis said.

"What they did--" they meaning the city of Fresno, council members, and the public-- "is destroy a very large project.

It was a very valuable project they wrecked, and now they will have to pay for it.

"
Talk about being mean.

As responsible council people, you would be remiss if you did not at least mull over the possibility of this lawsuit for us, for Nevada City.

But you should not be apprehensive about making a decision which may lead to such legal action.

One of the worst impacts of our increasingly litigious society is that the threat of such actions has caused so many organizations to be overly cautious in their decision making.

An example of this concerns schools.

Many districts have severely curtailed or even halted all field trips for fear of liability.

Luckily, my school has chosen to continue our wonderful field studies to Bay Area Art Museum's Yosemite, Shasta, and even to the Olympic Peninsula in Washington state.

It is a tragedy that some schools are intimidated into keeping their students within the confines of their campuses when there is so much to be learned outside the classroom walls.

Please don't fall into that same trap.

Please do not be intimidated into upholding these variances.

A worst case scenario is that a court would require an ERI, an EIR.

In my opinion, this would be unfounded.

In the opinions of many people, this would be unfounded.

But please do not succumb to fears of a lawsuit.

You do not need to do an EIR to deny this project.

You can simply deny the variances.

In conclusion, the initial study in mitigated negative DEC approved by the Planning Commission are inadequate and do not comply with the requirements of CEQA.

These documents were not properly noticed, were not properly distributed, were not properly reviewed, and did not identify numerous potential impacts or mitigation measures rendering impacts to less than significant levels.

In addition, many of the mitigation measures identified were not properly implemented.

Just say no.

Deny each and every variance.

Please deny this project.

Thank you.

Thank you.

Joseph?
Good evening.

I hate being last.

Joseph Reistorf speaking on behalf of Friends of Nevada City.

Although it may not seem like it from where you're sitting, this is actually a sign of a healthy community.

When people give up their free time, spend three nights in public proceedings like this, educate themselves in their spare time about the issues so they can speak intelligently and articulately, this is a good thing.

It's a good sign for our community, and I think it's something that we should all be grateful for.

Before I get into my summary comment, I did want to make a couple of comments to respond to some of the items that were brought up during the presentation by the developer and his attorney.

And also, I wanted to mention one thing that was in the written comments that I submitted on Monday evening, but I did not include in my presentation.

The city's instruction sheet that it gives out to developers or applicants for various discretionary permits indicates quite clearly that if the applicant is not also the property owner, then the property owner must submit some written authorization, allowing the applicant to proceed with an application for whatever the permit is on his property.

That wasn't done in this case.

There's actually nothing in the file indicating that the property owner has authorized the developer to proceed with any of the applications that were submitted.

A couple of points in response to some of the items that Mr.
Spann brought up.

He seemed to be asking for either reduction or credit against his sewer connection fees.

As we learned from Mr.
Falcone last evening, the new project will consume much of the existing spare capacity of the sewer and water systems.

There's no basis for granting any kind of a waiver from the sewer impact fees.

That's what those fees are intended to do, to make sure that the system maintains sufficient capacity to accommodate the projects that are developed in the city.

Mr.
Spann also indicated that he would be willing to install the newer sewer line that was mentioned in the report provided by his consultant.

The report talked about potential costs of $70,000.

He said maybe it might be as much as $100,000.

However, last night, Mr.
Falcone identified at least $1 million in capital improvements that will be needed for the sewer system and the city's water system to totally mitigate the impacts of this project.

Nowhere, anywhere, has there been any indication where that money is going to come from.

There are none of the conditions of approval in the project that were granted by the Planning Commission address those issues.

As was pointed out last night, this is a judicial proceeding.

You must look at the facts before you and render a decision on the appeals that have been submitted.

So let's review a couple of the facts.

The sequel review of the project was inadequate, and the negative declaration seriously flawed.

Mr.
Judd has advised you of this fact.

There were no findings or facts upon which to base findings to support the granting of the variances.

This collection of papers is a copy of the application for the variances submitted by the applicant, a copy of the environmental information form provided by the applicant, the city's-- the original negative deck that was prepared by the Planning Commission and circulated for public comment, and a copy of the city staff report dated April 19, and then a copy of the approval letter dated April 14, 2001, that was sent to the developer.

Nowhere in any of these documents is there any mention of the justification or any facts to support the justification for the variances as required in the zoning code.

And that's true also for the stack of papers that each of you have in front of you.

I think that there's a fatal flaw of this project.

People have to attempt-- the developers attempted to skim over this issue, but it really gets to the heart of the problem with this project.

As we learned last night, the size and the scope of the project were determined by economics, not by considering if the site could accommodate a project of this size, if the city's infrastructure was adequate to address the water, sewer, traffic, and drainage issues, or if the city's services could meet the demands that the project will produce.

I've never seen a planning commission or a city council approve a project in the absence of a strong statement of support and recommendation from its staff.

Last night, rather than hearing such a statement of support from staff, we heard what I guess I would characterize as a series of red flags that should cause all of us some concern.

Before you tonight are eight appeals addressing seven specific actions taken by the planning commission.

The first appeal is that submitted by the developer regarding the planning commission's rejection of the site plan.

That appeal must be denied.

Throughout the processing of this project, the developer continued to submit new information and change details of the project.

He had no reason to expect the city to approve a site plan submitted three days before the final planning commission hearing on the project.

All of the details of the project should have been finalized before it was presented to the planning commission.

In most of my experiences, staff won't even present the agenda item unless they have an approved site plan.

I saw that the supporting studies and documentation are in place.

I have a client I'm working for right now.

We certainly like the planning-- the staff to go much faster.

But we accept the fact that we haven't provided all the information they want yet, and therefore, it's not ready for planning commission consideration.

That's the same practice that should have been followed here.

Your own staff is telling you that they don't know enough about the details of the project to make a recommendation or to find that it is consistent with the city's standards, general plan, or zoning ordinance.

In this case, the planning commission acted correctly, and the applicant's appeal must be denied.

Now finding a way to deal with the remaining appeals may appear difficult.

But fortunately, the law provides some guidance.

With regard to the negative declaration, the procedural errors and the deficiency in the environmental review of the project have been well-documented.

Your attorney has advised you that the negative declaration is seriously flawed and inadequate to support approval of the project.

By approving the negative declaration, the planning commission ignored the CEQA guidelines and the city's own procedures.

Please keep in mind that CEQA is not a document.

It's not a report.

And it's not a series of forms.

It is a process.

And contrary to some of the statements and comments made by the developer, the negative declaration cannot be fixed because the process that produced it was not in compliance with the law.

Therefore, as recommended by your counsel, the negative declaration must be rejected and our appeal is accepted.

There has been substantial evidence submitted to support our appeals of the remaining planning commission approvals, primarily the lot merger, the variances, and the tree removal plan.

The planning commission did not make the required findings, and there is no evidence in the record to support the makings of such findings.

The granting of the variances and approval of the lot merger are discretionary actions that are subject to CEQA.

Once you reject a negative declaration, the planning commission's approval of the lot merger and the variances cannot stand.

Not overturning these approvals would be a serious violation of the law.

Therefore, you must accept our appeals of these decisions.

It's often tempting to look for a compromise or to seek a partial solution to a difficult problem.

But in this case, there is no middle ground and there is no third way.

The environmental review of the project was inadequate, and there was no basis for approval of the lot merger and the variances.

In summary, the only acceptable course of action is the following.

Number one, reject the applicant's appeal of the planning commission's denial of the side plan, which is item A on the agenda.

Number two, accept the appeals listed as B through H on the agenda, thereby overturning the planning commission's approval of the negative declaration, the lot merger, the variance to the slope standard, the variance to the seasonal stream setback standard, architecture review, and tree removal plan.

Sending this project back to the planning commission for preparation of an EIR won't change anything.

It won't change the basic facts of the project and its incompatibility with the site in which it's proposed.

We'll be here six months from now making the same arguments and nothing else will have changed.

We urge you to accept our appeals and deny the project.

And just in conclusion, at the risk of being presumptuous, I prepared just a series of the bullet points that we just made, which basically summarizes our recommendations.

And I have copies here I'd like to give to the clerk and ask that she distribute it to the council members.

Thank you very much.

Thank you.

[SIDE CONVERSATION] [END PLAYBACK] At this point, if the council wanted to, we could adjourn to executive session briefly under pending or threatened litigation if the council wants to discuss some of its options and what the potential liability or exposure is to the city, if that's what you desire to do.

And those threats are the threats made this evening in public session?
That and my memory of what happened in the Planning Commission meeting where Ms.

Gibbons didn't actually directly threaten a lawsuit but indicated that there was a good chance that somebody would sue if the project was approved.

And given that somebody already has-- are suing us currently who is an appellant, I take that seriously.

And I believe the mayor was called by Mr.
Span and indicated potential damages could flow from failure to approve.

So I think we would be fools not to believe that there's a lawsuit waiting at the end of this decision.

And I think it would be a good idea if the council desires to talk about it briefly.

Before you adjourn, Mr.
Thalcone indicated at the beginning of this session tonight that he had three questions that rolled over from last night.

So I was wondering if he still has those three questions and because we have some of our consultants here and if any of those questions apply to anything that they can respond to.

If he doesn't have the questions, so be it.

But he indicated there were questions.

I want to make sure he's had an opportunity to ask them from the developer.

He asked me.

That was already done earlier.

Are you satisfied or have you questions still?
I have no comment.

OK.

And I just indicate the code section-- we have to state on public record is the government code section 54956.

9.

OK.

Well, I would recommend that we follow our attorney's advice.

I move to adjourn into closed session based upon advice of council-- For how long? --as publicly stated.

Second.

OK, it's been moved and seconded that we adjourn to closed session based on our council's advice.

Any further discussion?
All those in favor?
Aye.

Opposed?
We'd anticipate-- just to give these folks something, I'd anticipate 10, 15.

I'd say 15 minutes.

15 minutes.

OK, so we will take a second intermission and then have the final act.

Where's the popcorn?
[SIDE CONVERSATION] Just for saying what this is there, is it talking about it?
It doesn't matter to me.

It doesn't matter to me.

OK.

Reconvene the city council meeting.

Reconvene the city council meeting.

Is the microphones on?
Can you hear us?
OK.

All right, will we open to public discussion?
Well, just before we get into that, I'd like the record to reflect that there was a phone call received from a very elderly constituent who voiced her opinion on the project and was not able to attend the meeting yesterday.

And she wanted that put into the record.

Pardon me?
Oh.

Nelda Clark.

I don't remember her address.

She was 80 years old.

And she said she's not against affordable housing, but she did not think this project was for Nevada City.

There we go.

And I can't remember all the names of the people who called me saying the same thing.

Anyway.

Well, here we go.

Hey, go first, Dave.

Go first?
Sure.

Test the waters.

Go ahead.

Back up.

We're going to limit ourselves to not more than probably 15 minutes apiece.

Right.

Count up.

But I'll go last, just in case there's some extra time.

No banking.

No banking, right?
Well, it's hard to top everything that was said here by the citizens of Nevada City.

My best boss I have.

I couldn't have better people giving me advice, giving me encouragement, letting me know when I'm doing things wrong.

And I get them all.

And I do it for free and gladly for all of you.

So thank you very much for spending three nights here doing exactly what I believe in, which is government by the people for the people.

We work for you.

My concerns are the same as your concerns about this project.

It's kind of like you've got a size 12 foot.

And you go and look for a pair of shoes.

And the shoes is affordable housing.

But the only size left is a size six.

But you go ahead and buy it.

And you try and put your size 12 foot in a size six shoe.

So it's trying to make something that is good.

And it turns it bad.

I just don't think that that's the way to do it.

All the money in the world.

We can go gold plate this.

And there's probably still gold maybe over in that side if they were allowed to sluice it more.

Wouldn't make this project any better.

I would now, myself, want to live there by a toxic dump and the highway.

I don't think it's a great place to put a place like this at this size.

There's so many things that were brought up.

But one of my biggest concerns, because I don't need to reiterate all the positive things, but one of my things that I was concerned about is the manner in which we were presented this program.

Starting out with someone suggesting, Mr.
Span, to rewrite our housing element.

When he was said, no, don't do that.

He did it anyway.

So far he's shown us he's a do it anyway kind of person.

And we're not that way here in Nevada City.

We don't do that.

We don't tolerate people threatening to sue us.

This is a community that saved a 39-- [APPLAUSE] This is a community-- I will not tolerate any outburst.

And I'm serious.

I'll clear the room if I need to.

I will not tolerate any outbursts.

OK.

I think they're on legal ground to do it myself, carries.

But you're the mayor.

Right now, this is a community that got wild and scenic for 39 miles of a river when no other organization in this country has been able to do that.

Four FERC licenses that were overturned were also the same community that helped finally by just getting rid of the politics, and it's politics that got this here.

And I'm not a politician.

And that's why I believe in just calling it ace and ace.

But we not only saved that river, but we got flood control money for our downstream neighbors.

So we do more than just take care of ourselves.

We take care of our distant neighbors.

And we're very affordable housing.

And as one of the eloquent speakers spoke last night, we can figure it out on our own.

We don't need someone telling us how to do it.

As you saw, and if you were paying any attention and listening well, the people that got up here are eloquent at their proposal.

I just-- I'm amazed that you didn't wave a white flag way on Monday night or sooner at the Planning Commission meeting.

This is-- it's amazing.

Maybe we're on two different wavelengths or something.

But this is-- I just-- it's obvious that I can't support this project.

And I would just like to wake up tomorrow morning and hope that it's going away.

So I'm the kind of person that, if that's the way-- I can understand a company that on its resume likes to show that we sue people.

I mean, you say you've been in business for 15 years doing this, but how many good-- the really good jobs do you get when people look at the fact that you not only sue the city, but you sue citizens for speaking up?
That, to me, is-- Yeah, it's really just-- I live in a place where, when I need help, no matter where it is-- and you've all seen my wonderful braid that I have here.

And who knows why I have it?
It's just I like it.

OK, there's no political thing.

It's just what I do.

But in my whole 32 years I've lived here, and I've always had long hair, and I've broke down in Penn Valley and all the extremes of this county, where you have your Aggies, Rednecks, this, that.

There's never been a time when someone didn't stop to help me and refused to let me help them fix my tire thing because they wanted to do it.

And when I offered them money, they said, hey, don't insult me.

Just the next time someone needs help, stop and help them.

That's the kind of community this place is.

People take care of people here.

And that's why we have a beautiful place called Nevada City.

I found home here 32 years ago.

I've lived all over this country in many, many places and never found-- I do sales-- I built my business on Highway 49.

I've been to every town more times than I can count on Highway 49.

There's towns that look like this, but there are not places that act like this.

You won't find more culture, more caring, the tenacity of these people and the length they will go to, and they'll do it with firmness but kindness.

You won't find Mean Street here in this town.

So I guess that's enough.

All I have to say is that that's it.

Thank you, David.

I'd like to go next.

I want to thank everybody for showing up over the many nights that we've put up with just these last three and all of the work that's been done on the side by individuals.

As David said, it really speaks to the spirit of this community.

And I think David pretty much covered that really well.

And I echo everything he said.

However, I do have some feelings of my own.

And just so I wouldn't miss them, I wrote them down.

So bear with me as I read it into the record.

I feel that this project has developed a life of its own, driven by the applicant's desire to maximize his profits and meet his funding deadlines.

And the Planning Commission's willingness to accept very creative, yet never used Nevada City design features, such as storage tanks for water, effluent, and drainage.

I feel that the project, as now presented, is greatly changed from the original that received the proposed mitigated negative declaration.

And that the evolution of this project should have taken the path of leaving the three lots as three lots and developing a smaller project on the one or two upper lots, which received the density transfer.

The upper lots are much smaller, could be had for less money, and should pencil out at a smaller scale.

I feel even though Mr.
Spann stated it is common practice to approve first and respond later to tests completed after conditional approval is given, I do not agree that this is either common sense or the Nevada City way of doing things, and that this too is driven by funding deadlines.

The overwhelming opposition to this project appears to be all centered around its size and the myriad of problems that arise because of that, because of the 80 units, which are a direct result of allowing the lot merger.

I do not feel that the site is ugly and needs to be graded into the sameness of the surrounding hills, which were not the site of historic development of hydraulic mining.

After all, ugly old Malecoff diggings received state park status.

I oppose this project as presented and mostly oppose the lot merger that allowed it to grow to an unacceptable scale, which has produced a project that is so opposed by the rest of Nevada City and its character and people.

I applaud Mr.
Spann's determination in creative thinking in trying to solve these problems, but always to his benefit.

I think he has really tried to respond to the concerns raised, however, again, the lot merger and therefore the 80 units was all in his benefit.

Regarding the variances, as has been discussed in many meetings, it is the feeling of myself and much of the citizenry that the greater number of variances being approved in the last few years and the greater level of the impact of those requests-- of the requests that they apply to-- represents excessive use or perhaps an abuse of the reserved special circumstance privilege and has been excessive.

In so doing, it is changing the fabric personality and physical appearance of Nevada City.

The general plan is a good document and allows for development within its guidelines that are both doable and beneficial to all concerned.

Vary from it too far and you run the risk of killing the golden goose.

Of the variances granted in this project, I feel that one of the steep slopes is that of the most detrimental.

The variance regarding seasonal setbacks is less of a problem for me for two reasons.

The complete spanning type bridge suggested fairly well mitigates at least the long term impact to these seasonal stream beds.

And second, this type of seasonal stream bed spanning may prove necessary for even a smaller project to be built on parcel A or B.

Staff has raised serious concerns as to the cumulative impacts of infrastructure, which have been thoroughly discussed regarding water, water pressure, runoff storage, sewage collection, police department increased calls, and fire department safety concerns, and traffic.

There has been a lot said about the need for affordable housing and I think there is a lot of agreement that the city needs to provide some.

There has been a great surge in public involvement because of this project and that is a positive thing.

If this project is denied, I would hope that all the energy and discussion that has come about to deny it can be re-channeled into positive, creative, and perhaps out of the box thinking to continue to address this problem of affordable housing.

But on a scale in a way compatible with Nevada City because we are out of the box people.

So again, thank you everybody for your help.

Thank you, Pat.

And I also would like to thank all the people of Nevada City, those in attendance, and those who are unable to attend and who have been following it via FCAT and the various radio outlets.

I appreciate it.

A number of people said that they wanted to thank AHDC because it brought people together who didn't formally know each other.

And I think that's great.

And I certainly hope that these people don't just fade back into their regular lives and go about that, as Pat said, that the energy and the positive momentum that has been generated on this is sustained and carried forward in other ways that can enhance our city and make the town even a greater place to live.

Because as you know, if you put positive people together with a common goal, anything can happen.

And so I strongly encourage everyone.

I also thank everyone.

I speak to schools and students and what have you.

And I always am reminding them that if you don't get involved, then if you don't tell your elected officials what you want, then you leave your elected officials to do as they think is right.

And it may not be what you think is right.

So you've just proven to me that that is absolutely a true statement and that participation is absolutely essential.

As far as the projects go, I wanted to say to Mr.
Spann that although you said in your phone call to me that you were not threatening me with all the people that were going to sue us if this project was not passed, it pointed out to me that there's obviously different interpretations of what threats are.

One thing that was not brought up in any of the discussions during the last three nights is that in Nevada County, we have a person who is the standard bearer and the chief proponent of affordable housing.

No one's heard a word from this person.

Pro, con, anything.

It seems to me that that could possibly be construed that if you can't say something nice, don't say nothing at all.

And I am very concerned, as the other two have pointed out, the impact on our water and sewer, the fire marshals concern, Chief Travato's concern, the traffic impacts.

I think that the soil conditions, I think that Candace bringing up the bags of soil taken from the site was just very, very graphic evidence that-- Make sure I was delcans.

Oh, I'm sorry.

Sorry.

Sorry.

Sorry, Gail.

Well, thank you.

It tasted good.

Yeah, it was a very, very graphic example that fine, you can plant trees on a ratio of two to one, but will they grow?
And will the landscaping grow?
And what is this place going to look like afterwards with that kind of soil?
That soil, by the way, would be excellent for an infield of baseball field.

I mean, that clay in the DG is just great, but I don't believe they're planning on building a ball field on this location.

The grading, the amount of the grading, the retaining walls, the amount of the retaining walls just really concern me the fact that there are so many places that have steep slopes, excessively steep slopes.

These are all major concerns.

As I've had numerous people come to me and tell me, I was going to build a duplex on wherever, and it took me months to get through here, and I had to do this, and I had to do that, and they picked over every little piece of my design.

It seems to me the Planning Commission really did not give a lot of time in reviewing this project.

I think they kind of just slid it through a little too quickly for my tastes.

So basically, what I would have to say is that I feel that this project is the wrong size.

I feel this is the wrong site.

I feel it's wrong to expect the people in Nevada City to bear the burden that this would place on the town, and I think that this is the wrong city to try to push around.

[APPLAUSE] Well, I want to make note of one thing before I begin.

We just came back from a 20-minute closed session.

I took nothing upstairs with me into the closed session, and when I've returned, I have not made one change to my notes.

What I'm going to say is exactly what I wrote this afternoon.

Prior to any closed session, prior to any vote, please keep it in mind.

I made one note about the fact that I mentioned it to my friend, Mr.
McKay, that if we spend any more time this close together, we're going to have to exchange class rings.

This is getting to be quite a process.

I've had some people call me-- some called my answering machine and not identified themselves, but after all these years, I'm used to that.

That's OK.

There's been suggestions made by some that I have promised my vote to Bill Spann.

Now, Gary Johnson, the other day-- memory, I came up-- we talked at your place.

We didn't talk about the project, by the way.

Gary was very respectful.

What's that?
I'm not going to talk to you about the project.

I want to come in your backyard with your permission and take a look at your visual impact, but I'm not going to talk to you about the project.

And I told him something, and I look in his eye-- I don't think at first he believed me, but by the time it got done, I think he did.

Mr.
Spann knows this to be true.

He and I have never had a conversation about this project.

Never.

He tried hard, left a lot of messages.

I called back and said, I'm sorry, Bill.

Not going to talk to you.

One morning, I was having coffee down at the hotel watching CNN, and he came in and said, let's go have lunch.

He said, no.

Nope.

That's why we have a microphone there.

We have a microphone here.

So I know that comes as a great shock to some of you who think I'm in bed with these people.

Never had a conversation with Mr.
Spann about this project.

There's been some talk about how contentious this issue has been.

Well, some of us have been around a long time.

This is nothing.

I see Mr.
Mattson standing up there.

This is nothing, huh, Paul?
This is a piece of-- this is like a church revival.

[LAUGHTER] I can recall a meeting right where Kathy's office is now.

In fact, it's kind of ironic.

Where Kathy sits now at her desk is just about where she sat when she was mayor of Nevada City.

Probably about four feet away from where your chair was when you were the mayor.

And gee, I recall a meeting one night when we were talking about whether or not we ought to be able to drink on the streets.

I just don't think we should.

But that's-- I was in the minority.

At least I was able to salvage special events.

And we had a councilman who felt pretty strongly that we should not be able to drink on the streets.

One of the bar owners stood up and he said, I'm not going to mention his name.

He was a good guy.

And it was a long time ago.

The fella stood up and he said, what are you talking about?
Your wife comes in my bar every night.

At which point the councilman stood up, took off his jacket.

The bar owner stood up, took off his jacket.

Unfortunately, the audience was able to restrain the bar owner.

The council restrained the councilman.

Soon thereafter resigned from the city council.

This is nothing.

I remember one.

I sat upstairs in that same office.

It was about drinking on the streets again.

And citizens came to City Hall and sat on the front steps drinking beer, waiting for the meeting to begin.

And then went upstairs in the council chamber with their beer and drank their beer during the council meeting.

This is a piece of cake.

I also remember Champion Trails.

Now Steve Dodge at the Planning Commission displayed a newspaper from 1981 on the early '82-- it might have been-- must have been early '82-- on the Champion Trails issue.

You want to see contentious public hearings?
Those were incredible.

People wearing buttons that said, what's in it for me?
Surely.

This is easy.

Also, I enjoyed Steve when he brought the newspaper in from 20 years ago.

My god.

I still care.

He showed me page three.

There was a photo of me.

I just won a re-election as a school board trustee of the county school board 20 years ago.

I think maybe I've been doing this sort of thing about as long as I need to do it.

The suggestion has been made that I tried to stifle free speech in this room.

I kept asking learned counsel, what the hell are we doing here?
Are we wasting these people's time?
I did not want to see the kind of emotion that we saw like last night where one woman couldn't stop from crying.

Is it really worth putting people through that kind of emotion if we're going to follow the advice?
And I think I can say this without breaking any confidentiality.

I sent to the city attorney some time ago a confidential memo, which will remain confidential.

But I don't think I'd be divulging any confidentiality if I were to paraphrase it.

Oh, it'll be a quick paraphrase, believe me.

I said to the city attorney, I have great respect for me.

And I, in fact, Monday I began my 10th year in this city council on Monday.

Hard to believe.

But I said to Jim, as much respect as I have for him, we are going into an area that is foreign to us.

It's an area of federal fair housing and discrimination.

There are laws that we have never dealt with as a city or as a city council.

I said, I really think we need to bring in outside council.

We need to bring in someone who can give us legal opinions because they work in the industry.

Mr.
Judd was hired by the city.

I'm the one that asked staff to please hire an outside consultant because we were up against something we'd never faced before.

From the very beginning, I've made it clear to anyone who's asked me a question.

My vote will be based upon the law, not on my personal philosophy.

It's not going to be based on emotion.

It's going to be based on the law.

Every question I have asked for three nights has been based on process and law.

I don't care about all these peripheral issues.

I care, in a sense, but that's not what's going to control my vote.

There have been suggestions by Brown Act violations at the Planning Commission.

Let me, first of all-- oh, come on.

Jesus, yeah, I was so prepared I lost everything.

That the fact that one of the people who spoke was asked to sit down, asked to-- well, originally asked to please stop assaulting, verbally, a staff member of the city, continued, asked again, suggested if you don't, you'll be removed from the room.

At that point, it was not the chair of the Planning Commission who interceded after the second request.

It was our own city attorney who said, that's enough.

So last night, we were told, well, we violated his Brown Act rights because he has a right to say whatever he wants.

Let me read to you the attorney general's opinion on that.

"When a member of the public testifies before the legislative body, the body may not prohibit the individual from criticizing the policies, procedures, programs, or services of the agency, the acts or omissions of the legislative body.

Although this provision does not confer any privilege or protection not otherwise provided by law, it evidences an intent by the legislature to permit individuals to criticize the policies or programs of an agency while leaving open a possibility that a body may prohibit comments which it believes to be slanderous or which may invade an individual's personal privacy.

"
That's the Brown Act.

"I believe Mr.
Cogley's personal privacy and his ethics were invaded.

"
Let's see what we got here.

"Historical resource.

I enjoyed Paul's presentation.

Did you bring that to donate tonight, by the way, or to hit us over the head with?"
I did not.

OK, neither of the above.

I enjoyed his historical presentation.

I would like to make a brief one.

I promise-- oh, I've got 25 minutes.

I'll make it a brief historical presentation.

Oh, no, don't worry about that.

Do I think that that's a historical site?
Yes, I do.

But not because of Mr.
Mathewson, only very obliquely because of Mr.
Mathewson.

I want to read something to you.

"This is about a young man who came to Nevada City in 1850, pioneer of this town.

When he came through the Isthmus coming from back east, he caught a fever.

He got to Marysville.

He was delirious.

"
Let me tell you what he wrote in his autobiography.

"I was taken sick with Panama fever.

Then he took a boat to Sacramento.

When the boat landed up in Marysville, I could scarcely stagger up the bank, which was very high at that time.

I spent the evening and night under a cottonwood tree where the boat hands placed my luggage.

In the morning, two men with a team consisting of 12 oxen were loading supplies for a mining camp known as Deer Creek, afterward Nevada City.

About 40 miles up in the mountains, it was.

I asked them to take me on their wagon.

They objected at first and said I was too sick to go and that it would take several days with their oxen.

I pled very hard, and they finally consented to take me.

They loaded me on the wagon, put some loose hay under me, made a bed, made me as comfortable as they could.

It was a dreary ride lasting three and a half days.

"
This is from Marysville.

"I was wracked with pain, and part of the time I was delirious.

When we arrived at Deer Creek, Nevada City, the teamsters camped about a quarter mile out of town in a grove of fine timber near a mountain spring called Roger William Spring.

They fixed me a bed of leaves above the spring and split a stick and put a dipper in it, which enabled me to reach in the water from my bed of leaves.

I drank enormous quantities of water every day, and finally on the morning of the eighth day, I found myself in a violent perspiration.

The fever was gone, and I was well, but very weak.

"
That was William Morris Stewart, served 29 years in the United States Senate, wrote the 15th Amendment to the Constitution, but you know what else he wrote?
He wrote the Federal Mining Act of 1872.

Had he not been placed next to Roger William Spring and not flushed out that fever, he would not have lived.

He would have died.

Death was very common during the Gold Rush.

Very common.

William Morris Stewart was up there.

I could never find Roger William Spring.

I went to the city engineer, six, seven years ago, and I said, "Build you.

Know where Roger William Spring is.

"
He said, "Yeah, I'll take you up there.

"
So he did.

We went up to Roger William Spring, which is actually, if you were to look at the old prestige plan, it's just where the road comes in and makes a right turn to me.

The left turn up there, right down at the corner of the property here.

Yeah, right there.

That's where Roger William Spring is.

So we stood there, and he pointed down a gully about 15 feet, said, "There's Roger William Spring.

"
I said, "It can't be.

I've read the history books.

"
He said, "No.

"
Now, he knows that I like to put up markers, historical markers, and Bill said to me, "Don't ever put up a marker here that says, 'This is where William Morris Stewart sweated out his fever in the summer of 1850.

'"
And I said, "But he did.

"
And your answer was, "No.

"
He did it up there, 15 feet.

That's where Roger William Spring was.

That's where the Mathewson hydraulic digging was.

I believe in saving tangible objects.

If anything ever happens up there, I believe in saving that bluff.

That is the tangible object, just as we saved the granite slabs that were the abutment of the old holiday bridge that became the Galt Bridge.

It's now the Pintree Bridge at a holiday crossing, I believe is its official title.

They were going to trash those slabs of granite, quarry-cut granite back in 1995.

I happened to be standing on the deck of the bridge with the engineer, not Bill, but fell from San Francisco, and he says, "We're going to take the deck off, get rid of the abutments.

We'll take the stones out to the landfill.

"
And I said, "To hell, you will.

"
"You're not taking one of those stones to the landfill.

"
I went and I saw Mr.
Falconia.

I went and I saw the city manager, and I said, "We've got to save those abutments, because it's tangible.

"
We did.

You want to go down to Calhoun Park, sit on a big slab of granite?
Came from the holiday bridge.

Take a look at the bridges down there now, and all the stone that's in there that Dan Reinhardt did, it's all from the holiday bridge.

It's tangible.

There is nothing tangible up there to represent Edward Matheson, because by the time they got down to that decomposed granite, he was long gone.

He had never stepped foot on that property.

He stepped foot up there, but he never stepped foot on that property.

Last night, someone made kind of an offhand remark.

I know it was intended to be kind of sarcastic, which is fine.

But actually, they were right.

I already had planned on mentioning it.

What is left there now is not a remnant of Matheson, but it represents the birth of the first major environmental law in the history of this nation, the Sawyer decision of 1884.

That is the birthplace-- I absolutely agree, Paul-- that's the birthplace of hydraulic mining, which spread to Red Dog and the Yubet, the whole Greenhorn River Creek out here, where Hanson Brothers has all of their rock-- all that is is just tailings from the old diggens up higher up on the hill, the hydraulic diggens.

It eventually led to Molokoff, which has been compared here tonight and was compared by Paul on Monday night, or on Tuesday night.

That piece of land is the birthplace, without question, of the first major environmental law in the history of this nation and needs to be recognized.

But Mr.
Matheson probably never stepped foot on there.

I'm almost certain he didn't.

So it doesn't compare.

My point was it doesn't compare with the Civil War battlefield.

Civil War battlefield is still there.

The bodies, in many cases, are underneath.

Remnants of rifles and sabers are still in that ground.

Nothing is there for that.

But it is historic, because that water, that water that percolates to this day out of that side of that hill, saved the life of a man who served 29 years in the US Senate, one of our primary pioneers.

I heard things like, this thing's too big, not right for Nevada City.

Those are the sort of things that I never really considered, because that's not what we were here to pass judgment on.

We're here to pass judgment on health and safety.

That's all.

That's all we were ever here for, health and safety.

I agree with Tom Taylor.

I think Tom made one of the best presentations of anybody here.

I really agreed with him.

Boy, that is the right place for affordable housing.

And we need it.

But it was too big.

That's why I asked a question last night.

We'd limit it to 80.

If it goes to 79, you lose the grant.

The answer, yes.

So we never had the opportunity to negotiate a smaller.

They could start all over again with 40, but can't go to 40 with this grant application.

That's a fact.

But Tom made a good point.

Jake Hooper, I served with Jay's dad.

In fact, I'm the only person-- yes, I'm the only person at this table who ever had the honor of serving on the Planning Commission with Lon Cooper.

I would have a friend who has moved up here from San Francisco.

And we were looking at these plaques out here, and the one about Lon.

And he said, gee, do you know that guy?
And I said, no, I'm hell.

I served with him.

Proud to have served with him.

Jay Cooper made the comment that I think was most pertinent.

You have inadequate information.

We certainly do.

We have inadequate information.

We don't have enough information by which to uphold these appeals and to support the Planning Commission.

Please don't blame the Planning Commission.

Don't blame them.

They don't have the benefit of the same input that we have.

They didn't have Mr.
Judd at the table.

At the ARC, he didn't even have a city engineer.

They did the best they could of the information they had.

Regrettably, it wasn't enough information.

Please don't blame them as individuals.

I think they tried to do the best they could.

And I will conclude-- oh, gee, I have 15 minutes left.

I will conclude by echoing everything else that people have said here.

I have just begun my 10th year in this council.

And I am proud to have the privilege to represent you people.

You may not have all voted for me.

It's all right.

I've run three times.

I've been elected three times.

I don't know how.

You may not have put that little x next to my name, but I still represent you.

And I'm proud to represent you.

And I think what we've seen the past three nights, indeed, is why those of us that are here, we're here for the duration.

And I think the only solace that Mr.
Spann can have-- and it's small solace-- small consolation is that as a result of this project, our planning process has been changed.

Our planning commission will get better information in the future than they've ever had.

Plans will go to planning commissions prepared for a decision.

And we will have made a major accomplishment in the processing of applications in Nevada City.

Small consolation, Mr.
Spann, tonight, I'm sure.

But that's going to happen.

I thank you for giving me an extra two minutes, Mr.
Mayor.

And I think we have a sense of where we're headed tonight.

Thank you very much.

Very much so.

Let's see.

Well, I believe we're-- We're ready to entertain a motion or a motion.

I will be happy to put a motion on the floor.

My motion would be that based upon the advice of council that this item be referred back to the planning commission for further environmental review at the option of the applicant.

Essentially, it would mean it would have to go back to either the city planner or someone else to do the initial work before it ends up back to the planning commission.

Goes back for further environmental review at the option of the applicant.

I'll second it.

OK.

I did.

Moved and seconded.

Now, discussion.

I'd like to point out that, as Steve said, there are two ways to do things.

There's the way that could be construed as the emotional way or what I personally may think is the absolute right way to do things.

And then there is the legal way.

And sometimes there is a great deal of difference between the two.

But we do live in a society that is based on law, and we need to respect that.

And we not only have our own city attorney, but we brought in an expert in this field.

And it is based on their advice that this motion was made.

Anybody else?
Any further discussion?
Well, I would just like to point out that if this motion is passed and if the applicant so chooses to follow through, that it merely opens the opportunity for more time to be applied to all the concerns that everybody's brought up.

So it is not to be construed as our way to dodge a bullet and to let the program somehow evolve without total proper concern and input from everybody involved.

So I personally had some problems with thinking that this was a correct direction for us to take.

But at the vice of our own city attorney and our experienced, contracted other attorney, I believe that this is an action that needs to be taken.

It's not the end of the road for anything.

So it's my feelings on that motion.

It may not be the end of the meeting.

Do a roll call vote.

OK.

Any further discussion?
Could you do a roll call, please?
Yes.

Yes.

No.

Yes.

I'd like to make a motion.

And a motion that I would like to make-- I've got to read the whole thing first?
OK.

OK.

My motion is going to be based on the findings concern on slope variance.

The council has received and reviewed an extensive file concerning the proposed project, including, among other things, site plans, grading plans, a proposed, mitigated negative declaration, and other materials presented to the Planning Commission, has received or heard reports of the city planner, city engineer, city manager, and city attorney, received and reviewed extensive testimony and correspondence from the applicant, and has heard public testimony over a period of three meetings.

Section 12.

14 of the Nevada City Zoning Ordinance provides that no development of any type is permitted on any land where the cross slope exceeds 30% unless a variance is granted.

Under the Nevada City General Plan, the city follows a policy of preventing soil erosion and hillside scarring through control of grading, restrictions on removal of vegetation, and limitation of development on steep slopes.

In the last two years, there has been increasing public concern about construction on steep slopes in the city, and serious consideration of a moratorium on steep slope development.

Most of the steep slopes on the project site result from 19th century mining activity, but are now covered by trees and other vegetation, appear part of the landscape, and present view, stability, erosion, and other issues similar to other steep slopes.

The project as proposed in May 2000 involves placing buildings, roadways, carports, at least one water retention basin, parking areas, and a swimming pool in areas of more than 30% cross slope, and therefore requires a variance.

As revised in May 2001, the project would involve cutting approximately 18,000 square feet of soil and filling approximately the same amount elsewhere in the project, and would also involve extensive use of retaining walls up to 22 feet high.

Section 16.

30 of the zoning ordinance allows variances if, one, enforcement of the ordinance would otherwise result in practical difficulties or unnecessary hardship, or would deny the owner reasonable use of the property.

Two, strict application of the ordinance would, because of special circumstances of the property, deprive the property of privileges enjoyed by other property in the vicinity, and with the identical zoning classification.

And three, the variance is conditioned to assure that it will not constitute a grant of special privileges inconsistent with limitation on other properties in the vicinity and same zone.

The property on which the project is located could be developed with less intrusion into steep slopes, less grading, and less extensive retaining walls.

There has been no showing that reducing this slope intrusion would deny reasonable use of the property, create practical difficulty or unnecessary hardship, or deprive the property of a privilege enjoyed by other.

Identically zoned property in the vicinity.

Although the applicant has reduced the amount of grading necessary for the project by adding more retaining walls, the revised project contains 80 units, the same number of units as originally proposed, in the same number of buildings, and impacts roughly equivalent amounts of slope.

As recently as 1998, the city received and approved a proposal, which has not been constructed, affecting one of the three lots covered by the current project.

The 1998 project contained 60 assisted living units, a commercial kitchen, and a dining area, with approximately 41,428 square feet of building area and approximately 69,000 square feet of developed area.

It only involved approximately 8,000 cubic yards of cutting and 6,000 yards of filling, and received a slope variance.

There are significant developable areas on the site which do not have slopes exceeding 30%.

Based on the 1998 project and on the availability of the project now proposed of two additional lots containing approximately 4.

6 additional acres not included in the 1998 project, the information available to the city does not support the conclusion that a slope variance of the magnitude requested by the applicant is necessary for reasonable development of the property or to avoid particularly difficult or unnecessary hardship.

Because the requested steep slope variance has not been shown to be necessary, and from the available evidence on balance appears unnecessary, the steep slope variance should be denied.

I should just make it clear that the proposed findings are simply something that was drawn out based on public testimony as a suggestion.

You don't have to adopt all of the findings, or any of them, for that matter.

So I just want to make clear it's a suggestion.

It's up to the council where they want to adopt all or none of those findings.

Was that a motion to adopt the findings, David?
Yes, that was a motion.

I'll second.

OK, it's been moved and seconded.

And that would also, I guess it's included in the findings, would be a motion to grant the appeal and overturn the decision of the Planning Commission, which had approved this variance and to deny the variance.

OK, so do we want to add that word?
Well, I think it's clear enough on the record at this point, but I think it was important to make it clear.

OK, it's been moved and seconded that we uphold the appeal and overturn the steep slope variance and accept the findings as presented to the record.

All those in-- Discussion, discussion, discussion.

Oh, sorry.

Discussion.

I would just like to reiterate that that was my main concern in the beginning.

And I think it's a very valid point that we enforce that condition.

All I would say is some of you are going to leave here feeling like you kissed your sister through a screen door.

Think about our vote.

That's all I ask you.

Think about our vote.

It will all make sense to you.

And the only thing that I would like to clarify in reference to the 1998 project was that, number one, for whatever reason they chose, it didn't go forward.

And number two, there's no law that says we're obligated to make the same mistake twice as far as granting a variance that probably should have never been granted in the first place.

So just for the record, I wanted that to be known that that's the great thing about laws in this country, that we're able to change our minds and improve and do better the next time.

OK, and the question that I have is for either one of our counsel.

Is either now or after the voter, would it be prudent or correct for you to summarize what this would mean?
What would result?
So that there would be clarification both for the applicant and for the public?
I think it's probably appropriate to try to get that as clear as we can before you vote.

More likely to do some good.

I would appreciate that.

All right.

I guess what I will assume is that there won't be counsel action on the other matters, the other appeals that are before the council, at least at this meeting.

Because my understanding of the thrust of this decision is that the applicant is free to come back with a proposal that's significantly less intrusive in terms of what it does on steep slopes.

And that if the applicant wants to pursue that, which would also, given the motion that the council previously passed, require getting environmental review started over again and considering whatever might be brought forward, that they would be able to do that.

And that it would be, at least at this point, premature to move forward to all the other matters that are on the council agenda at this point.

Obviously, the project can't go forward as it's now proposed without this variance.

Because the site plan that was presented depends on being able to get this variance.

And the lot merger that was presented was presented on the assumption that this variance would be available to permit development, as shown on the plans.

But at least in my mind, the ball would be in the applicant's court to say whether there is a way to come forward with a proposal for development on this site that will be less inconsistent with the city's slope standard.

And I don't know whether that's possible or not or what changes it would require.

But my recommendation, at least, is that they be given an opportunity to do that and see what it turns out to be.

Now, did I speak to your question or-- Yes.

That answered the question.

OK, we're ready.

Any further discussion?
Shall we do a roll call vote?
Kathy?
OK.

Yes.

Joe?
Yep.

Mayor?
Yes.

Burnett?
Yes.

Motion passes 4-0.

I would further recommend that we take council's advice and take no action on the other appeals at this time.

Is that a motion?
Yes.

Second.

OK, move and second it.

At this time, we follow our council's advice and not take any action on the remaining appeals.

Just leave it at that.

Move to second it.

Is there any discussion?
Well, I hope that now that you've heard council's explanation of what we're doing and why we're doing it, that you'll have a better appreciation and that perhaps some of the jeering, had you just waited a couple of minutes, might not have jeered my motion.

Yeah, and something that we had to take into consideration.

We have a lot of people with a lot of knowledge up here.

Our city engineer represented us very well and did an excellent presentation.

And I'm sure all of you know that.

And it's the same, goes right on down the line with everyone at this table.

And the city would have not invested in bringing up an expert in this law, this kind of law that this territory went into.

You don't ask an expert for advice and then not do something with it.

Why do it in the first place?
And we wouldn't ask any of you to come here and give your time and expert testimony for the same reason.

So you all know where I stand on this project.

And you know how I feel about it.

And I wouldn't have agreed with it if I didn't think it was a good idea looking at the situation from a legal standpoint.

And so from a legal standpoint, you won.

You won.

OK.

Any further discussion?
Call for the question.

OK.

All those in favor?
Aye.

Opposed?
Motion carries 4-0.

I believe that concludes the business of this evening's meeting.

It does.

However, I would like to make one for the comments.

Just a comment.

I feel there's some bewilderment in the crowd out there.

And that's OK.

This has been a long bewildering process for everybody.

I hope you can trust in us and council that we've done the right thing to address your concerns.

But don't let your concerns go away.

Because obviously what's happened is this entire thing hasn't gone away.

So everybody stay involved.

OK.

Now I hope you may applaud.

I move to adjourn.

Second.

Move and second.

And all those in favor?
Aye.

Council stands adjourned.