The council meeting focuses on procedural fairness, time allocations for seven appellants, and CEQA evidentiary rules, including whether new evidence can be admitted. Key issues include which street qualifies as public, visibility of a water tank from streets, mitigation along West Broad Street, and the ongoing mitigated negative declaration review with external critiques. About $10,000 has been spent; a final decision awaits further design work and documentation to build a solid, fair public record without scope creep.

- The proposal is an 80-unit affordable-housing project on a multifamily zoned site, relocating up to 80 illegal units, integrating offsite sewer/water improvements and an on-site storage tank for fire flow, with total fees around $670,000. A new sewer line and easements are planned; project revisions date back to 2000 but the 80-unit count remains. Discussions cover fee structures and mitigation responsibilities, with CEQA balancing environmental review against housing production and potential post-approval mitigations; variances were used to align with historically higher density, and there’s no basis found to oppose the lot merger; state clearinghouse involvement is possible.

- Under Government Code 65008, discriminatory effects by agency action that render a project uneconomical are illegal. Outcomes hinge on appeals: opponents could halt or delay the project, denial could trigger litigation, a developer victory could advance the project, or a defeat could kill it unless revived. An attorney recommends delaying action to allow thorough environmental review, noting that an EIR may or may not be required.

- The developer seeks approval but demands detailed staff review of current information (tree and wetlands reports) and a robust mitigation plan and mitigated negative declaration to withstand scrutiny, while recognizing CEQA timing and potential extensions. The discussion culminates in a proposed hearing pause with written questions and a brief recess.

Full Transcript of the Video:

[ Background noise ] [ Background noise ] >> I see you at all kinds of meetings now.

[ Background noise ] >> What's going to be here today?
>> Well, I don't know.

It's a family situation.

I only have the class of, well, like the 29th or so.

[ Background noise ] [ Background noise ] >> This scarf is about 5'7", well, maybe 5'8", about 5'7", and you can't say that.

It's dark, wavy here, too dark here.

And kind of the round face and kind of punches over what you want, so we need to zoom a little bit.

[ Background noise ] >> We're missing.

[ Background noise ] >> Jim Schaffoni is in Alaska, who was sitting next to me last night.

He flew on the flight to me this morning in Alaska.

The fire marshal's not here, and I don't think it's coming, which is good.

[ Background noise ] >> Jim Anderson's over there.

I think we're ready for a hot day.

Here comes the police, and let's go.

He's down?
[ Background noise ] >> Good evening.

We're going to reconvene City Council meeting from last evening, and just a little administrative detail.

Public hearing is now closed.

[ Background noise ] >> Oh, yes.

And at the end of our table here by Jim, there's the lost and found.

There's a water bottle and a blue spiral-bound notebook that someone left behind, so please claim those on your way out.

>> Actually, I borrowed some of the notes in there for my presentation tonight.

They were great.

[ Background noise ] >> Okay.

This evening we will be meeting from 6.

30 until 10.

30, and we will be dealing with staff answers to questions raised during the public hearing and council discussion.

Followed by concluding remarks by the appellants, then council action.

So -- [ Background noise ] >> So is there -- [ Background noise ] >> Who's asking the questions is what I want to know.

>> Is there a staffer in the house?
>> Yes.

>> Talk.

>> If the staff has anything to say, then this would be the appropriate time.

[ Background noise ] >> Any -- >> I gave all my information last night, unless there's a specific question.

>> Okay.

All right.

So the council members have any specific questions towards staff on things that were brought up during the public hearing?
>> Yeah.

One I'd like to clarify with Bill.

We spoke about it, but I think we need to put it on the record.

Last night, someone quoted from the -- our zoning ordinance, and I'm sure they quoted accurately.

When I heard it, I said, "Boy, they're wrong.

"
Bill said the day he heard it, and he said, "Boy, they're right.

"
And Bill -- >> I'm not 100% sure of that.

We might have to ask the city manager -- >> Okay.

But the issue was the -- >> Chief Kelly -- >> The agreement that the water tank would not be visible from any public street.

And then the person who made that -- was that you, Victor?
Someone -- whoever made that remark said that it's visible from Lewis Kelly Drive, which is a public street.

Well, I sat here and said, "No, that's not a public street.

We don't accept streets as a rule.

People build them, but we don't accept them, because then we have to maintain them.

"
And I mentioned that to the city engineer this afternoon, and he said, "Probably not in that case, because that's a road that's going to connect two main arteries, West Broad and American Hill Road.

"
So the rule is we don't accept them, but in this case, we probably will accept American Hill Road, in which case the tank would be visible from a public street.

>> I see the city manager's wheel turning.

>> I don't think that we've ever made that.

I don't think that's really ever been discussed for sure that we were going to accept that.

>> It would probably be my recommendation.

I don't know whether that's the way the council or the city manager would want to go, but it is a through artery.

It's not like Woods Cord or one of those that is only used by the residents.

This is basically a city street connecting two city main arteries.

And so it would be like Argo Way.

Argo Way is a city street, even though it's between Zion.

To me, that's the way I think that one has to be treated differently, I would think.

>> That was my comment to Steve.

>> Let me just read the mitigation that you're talking about so you can hear out its word.

"Prior to project approval, the water tank shall be cited to minimize its visual impact from any Nevada City roadway, especially West Broad Street, as shall be approved by the Planning Commission.

In order to assure compliance, preparation of a visual simulation may be required.

"
>> Any Nevada City roadway?
>> Any Nevada City roadway, especially West Broad Street.

>> Okay.

Are there any other questions that anyone had?
Okay.

Well then, council discussion.

>> I would like to end this discussion by concluding remarks on any consultation.

>> Where is the summation?
>> The applicant summation is right here.

>> Is it the pleasure of the council to discuss this at this time or listen to the concluding remarks by the appellant before we say our piece?
>> Let's have every word of input we have, I think, would be the right way to go.

>> Okay.

Then we will take the concluding remarks by the appellant in the order that we did the first time around.

And this evening we will be limiting the closing remarks to five minutes, and we will not be banking time.

And so one person to represent each appellant may speak and give their concluding remarks.

And so AHDC, a representative for Bill or Mr.
Jones?
>> Mr.
Mayor, we were under the impression that we were going to have opportunity for various consultants to deal with the issues raised by city staff last night.

Engineering issues, mitigation issues, wetlands issues, and five minutes is not appropriate for them.

>> Please forget about it.

>> As I recall, that's correct.

How long do you think you're going to need to do that?
>> My comments on the legal issues alone will be 15, 20 minutes.

>> Well, I think we need to be fair to everyone else.

And so we've given up three nights of our time, and we've heard lots of testimony from both sides.

And I really don't think that we need to overextend this.

So let's be fair.

>> Again, and sticking with the fairness aspect, if we allow you the 15 minutes, then that basically will open the door for all the other appellants to request that at the same amount of time.

And I do believe that that will severely impact our schedule.

>> It is fair to say, though, that there were specific questions.

And that they brought in consultants to answer those questions.

>> That is correct.

I forgot.

That slipped my mind.

>> Well, then why don't we have those consultants come forward and -- >> Well, Mayor, I would suggest that probably we should give them some additional time.

It's really, at this point -- well, there's eight appellants, really, there's two sides.

There's one side for and one side against.

I think to do it this way really gives one side seven times more time to present their case than the others.

And I think it would be safer to give them an opportunity, maybe let them go first, let the other appellants have -- >> There are only four of us.

I can't imagine any of us talking for more than six or eight minutes.

>> Well, then I think that we should then actually back up to the staff answers to questions raised during the public hearing.

I recall now that, Bill, you did have specific questions that you wanted to address to certain -- was it the tree issue, I believe, or possibly the grading -- >> The other thought off area.

>> Yeah, if those people are here tonight that can answer your questions and you're prepared to ask them, we could take it at this time.

>> I have just a question.

In past City Council and Planning Commissions where I've seen really whether there's concluding remarks or not once it's sort of left to you to discuss, the council has the right and staff to ask questions at that point of anyone who has brought things up and has done that freely.

But to do it now seems to be changing the process in mid-street.

Last night, several appellants asked specifically, how much time are we going to have to address the council?
And I'm told that we would have five minutes.

So that's what we prepare.

And I think that if you have questions, that's appropriate, but it seems to me the appropriate time is after that mic is turned off.

And then if you have other questions, ask them of any of us.

That's what's been done in the past.

>> That's fine.

I mean, the council obviously can ask questions of anybody they want.

I suggest that we have AHDC given a reasonable time to have their experts say whatever they feel they should say.

And then we could give an equal amount of time in total to the other appellants.

And then the council can ask questions of anybody they want to at that point if they so desire.

>> So you're saying that since there are seven appellants there, technically it would be in the -- >> No, it's not been run that way this whole time.

>> So AHDC would get 35 minutes, the other seven would get five minutes.

>> Well, you could give more if you want.

You could give more if you want.

But I think they need a reasonable amount of time to present their project.

And they did that the first night.

>> It's months to present a project.

>> They shall respond to questions.

>> I think what the city attorney is saying -- I don't like to put words in Jim's mouth, but after ten years of sitting at this table with you, Jim, I think what you're saying is that in order to build an appropriate project, to build an appropriate public record, we should have the fullest amount of discourse possible.

>> Right.

Particularly we don't want a situation where we get a lawsuit claiming we didn't have an opportunity to present in our case.

>> They did under their appeal.

>> They got 15 or 20 minutes.

This is a very detailed project.

>> At the meeting last night, we heard from staff in terms of water and sewer, but we never heard specifically what staff's recommendations were or what their conditions of approval or anything.

So we still don't know what is expected of us in terms of water and sewer and storm during conditions from staff.

>> We're going to have a five minute presentation on our project without knowing what is going to be imposed upon us.

I think it's unfair.

>> Well, I think as I understood what Bill said last night is you don't know what the conditions are at this point.

That still needs further investigation.

>> That's true.

As far as I could go, if there want to be additional information given, right now we're going to take the transcript of what I gave last night and put it in a form of report so the city would have it from here on out.

There's a lot of questions that would still need to be answered.

There's a finite amount of time in which to do this.

If there's additional work that needs to be done, then we would need to continue and go into the next phase.

We've spent a good deal of city money.

We've spent probably $10,000 to arrive at this point.

The city manager will have to authorize consultants and people to give us exact numbers to that sort of thing.

I have not reached that decision yet.

I tried to ascertain exactly where our system was.

I don't have the numbers, and I won't have the numbers tonight for what it takes to fix it.

It will take some additional work, some designs, some preliminary estimates, and that sort of thing.

I just have one quick remark.

I think that introducing 15 minutes of new legal information here may not be appropriate.

If questions are to be answered about items that came up last night, that would be one thing.

But to have the representative's attorney get up here and give us 15 minutes of legal information, I don't quite see where that fits in to the scheme of things.

It's certainly not on the agenda.

Well, it's certainly major legal issues before the council in deciding what to do.

I think, again, that they would have a right, since you've been advised by your attorneys, they have a right to at least say what they feel the law is.

So you've heard both sides of it.

I doubt that the four of us are going to take an hour, and it's only a quarter to seven.

And there's no question.

I don't care which side of the issue you're on.

There's no question that we need to build the best public record that we can build.

And if that includes 15 minutes from Mr.
Spann's attorney, so be it.

Steve, you always keep good notes, and I mean it.

Didn't I ask three basic questions last night?
What was the true inventory of the trees?
And to clarify, the arborist report and the biological report.

Those are the only three questions that I would like answered by the applicant.

And those were clarified by letters given to us in our package.

Apparently, yeah, I just see some of this stuff here.

That shouldn't take that long.

I think it's just about all answers.

And I'm prepared to accept that.

Okay.

So it is your advice that the applicant's legal council have-- I think 15 minutes is fair.

--to give them, if they want to have their experts, state, whatever they want them to stay, give them a reasonable amount of time to do that, give the other opponents a reasonable amount of time, and then let's close it and have the council make a decision.

I mean, our presentation on Monday was on our appeal.

Our appeal was on the site plan.

We have not been given an opportunity to describe the project to you.

We described the project to the planning commission.

They made a decision.

I'm not sure that you have all the information that we provided to the planning commission for them to make that decision.

We have a stack here that we have gone over for weeks on this.

We know as much about the-- as the planning commission.

We have watched the six hours of tape from those meetings.

We have put our lives on hold for this project.

So don't make any assumptions that we don't know as much about as the planning commission.

We are doing our job up here and it doesn't need to be abused.

Bill, how long do you need to-- for your presentation, will you think?
I know he's 15.

What do you need?
I could use 10 to 15 minutes myself.

Do you have anybody else that needs to speak?
I do have letters to present to you from the arborist and biologist.

We do have other consultants for traffic, historical, geotechnical, geochemical.

We have a few consultants that are here to answer questions.

From that respect, we can just be available to address questions.

All right, so we give you attorney 15 minutes and you need 10 or 15 minutes to do-- okay.

Well, and I think that's appropriate.

I think that given the chances that we're going to end up in a lawsuit here, I think that's the most important thing is that Steve has indicated to build a good record and not have a situation where someone's claiming they didn't have an opportunity to fully present their case.

And so I feel that we should give them a half an hour.

And if you feel the other appellant should be given additional time to do that, we've been here eight hours already, another 45 minutes or whatever.

It's not going to matter if we need to build a good record.

In that regard, I haven't said anything yet.

I agree we should build a good record, a good foundation of public record and give everybody an opportunity to speak.

We basically have given everybody an opportunity to speak, everybody wants an opportunity to concise and wrap up.

I have no problem with giving what you stated as essentially two sides, 45 minutes apiece, let them break it up however they want to.

We have an hour and a half that's been discussed out there.

We can close that section of the meeting.

We still have plenty of time for the table to discuss what's left.

And that group then can decide how in a sense-- essentially they are banking time, they only have two positions on this thing, and then they get equal time.

So that's my suggestion.

I concur.

That's reasonable.

Mr.
Cooper?
Is this working?
Shouldn't be.

I just want to ask, as far as the-- what does that do for the other appellant's time than to give their final remarks?
Are we still limited to five minutes?
45 minutes total.

45 minutes total.

That's exactly-- actually a little more than five minutes per.

Okay.

And the other question I have is as far as these additional remarks that are about to be made, have you decided that this is a de novo proceeding?
It is.

Are you limiting?
Well, I know that's your opinion.

I'm just asking if we're-- are we delving into new materials that were not before the Planning Commission?
That's the impression I'm getting.

This is an appeal.

Right.

That's what I ask.

Absolutely.

It is an appeal.

If there's time to present new aspects of the project, I don't think that's appropriate.

I would agree with you on that.

Can I speak to that?
Just a couple of parts of it.

One, on the CEQA side of this, there are state guidelines that require a decision by the Council.

So I don't believe that it would really be a good idea to close the record off at what was presented to the Planning Commission.

I think there needs to be an opportunity to consider new evidence that was presented here.

And what was the other thing I was going to say?
How would the people that have submitted their appeals, all of a sudden now new information gets presented and they haven't had fair-- That actually is what I was going to also say, is that if new evidence or new arguments or new information comes up at this point that needs a response, I don't believe that it's fair to expect the other side necessarily to respond tonight or the Council to make a decision tonight.

Just as we're saying that the developer is entitled to a reasonable opportunity to present his issues.

If there's new issues in there that go beyond what's been considered before, it may be necessary to continue this hearing.

So I would say that the developer and his attorney should consider whether they want to be bringing up new issues.

I mean, I think 15 minutes could readily be justified to deal with issues that are already before the Council.

But if we start expanding the subject matter of this, then to turn around and say, well, by 1030 tonight, we have to find out everything there's going to be to be found out about it and then vote on it.

I think that's an unrealistic expectation.

And my understanding was that their desire was to have a decision by tonight under any circumstances.

So I think there--I guess what I'm saying is I think there's a little built-in discipline there in terms of expanding the scope of what we're talking about.

And that 25 minutes, which is what they've said they want, is really not beyond the reasonable scope of time to talk about what we've already, as Jim said, spent six or eight hours here talking about over the last two nights.

Thank you.

Thank you for asking the question and reminding me what I wanted to say.

Okay.

Based on that, then comments from the Council, then we will provide HDC with 45 minutes and we will supply the other appellants this equal amount of time to present, to sum up and give their concluding remarks.

Carrie, we're not exactly a defined, high-paid organization as they are.

So them dividing their time up, these are people who work together.

We're private citizens.

The list didn't even know each other until they breezed into town.

So I think it would make more sense.

There are seven other appeals other than theirs.

Is that correct?
Correct.

How about we each get seven minutes, then?
Instead of us, I don't want to have to start talking to Gary.

Gary, how many minutes do I need?
That's fine.

45, 49.

I'm not going to quibble over four minutes.

Okay.

Well, just because last night, I mean, we were getting pretty precise in cutting off the mic, so-- I want to bring up the point that this development company has had all day to prepare their new materials with high-paid professionals, and I'm sure they have spent all day preparing new materials that they think will sound good to the Council.

Don't we need some time to prepare?
That was the discussion.

If it's new material, that's a different story.

I'm assuming they're simply going to describe the project, make sure that they feel the Council understands fully what it is they have before the Council.

And their attorney wants to fully describe the legal issues from his point of view.

Okay, legal issues, but if they present new material pertaining to this project, can we have additional time to prepare our appeal?
If it's truly new, if they're simply just backing up what's already on the board, so to speak, that's nothing new.

That's simply summing up their project.

I think they're going to be reasonably certain.

They're not going to give us a new site plan.

They're not going to give us new grading plan.

They're not going to have a new tree harvest plan.

All they're going to do is respond to the things we've been talking about for eight hours.

I don't think this is brain surgery.

We spent 25 minutes figuring out what we're going to do.

I'd say let's move forward.

Absolutely.

When their Council speaks, if it's speaking to the project, that's one thing.

I have no interest in hearing what their funding requirements are, what their application process is, what law got them into the door.

Well, I think I'm going to give him 15 minutes unless he's totally off base.

I'm going to let him say what he wants.

I agree.

I agree.

Okay.

AHDC.

You have the floor.

The clock is running.

My little clock says 657, so we'll take it from there.

Okay.

I'd like to pass these documents out.

First of all, I'd like to respond to the questions of City Engineer regarding the Arbus report and biological reports.

I'm going to pass out letters addressing that.

Please, if you would look it over.

Microphone, please.

I'm sorry.

I think the letters are self-explanatory.

If you'd like to ask questions or discuss it at a later time, we'll go over that.

Okay.

The other issue that was raised about the tree removal, we are requesting to remove 66 more trees or 12% more than the standard tree ordinance permits.

In order to mitigate this potential impact, we propose to replace trees with 356 new trees, of which 249 will be of 15-gallon or larger in size.

This is equal to a replacement factor of two to one of the trees to be removed.

And this is all the trees on the entire site as we speak today and the plans that have been submitted as of today.

Furthermore, many of the replacement trees will be located strategically to provide visual barrier between our complex and the surrounding neighbors.

And we'd be very happy to meet with the neighbors and city staff to go over those specific locations so that we can provide adequate screening for the neighbors.

One question I have is, and that's mainly what I was confused about last night, was in the E-corps consulting, you've got a biologist named Quan, but today you give us two letters.

Unless you have a letter from Quan, or does Glasser take the responsibility for the biologist report now?
Now, are you referring to a biology report or a wetland delineation?
The E-corp document is regarding wetland delineation.

So I want some North Fork.

North Fork provided the arborist report and the biological report.

I'd like to express concern over the letter that has been provided to the city from outside council, Mr.
Judd.

Although I feel the letter is very adequate for the document that was reviewed, but I think that the document that was reviewed is woefully inadequate and out of date.

It was the April 6th draft mitigation, or mitigated negative declaration.

Since that time, it has been modified and updated and revised, going through ARC meetings and also to the planning commission.

And findings and conditions and revised mitigation measures at the planning commission meeting have not been noted or spelled out in Mr.
Judd's letter.

So for that reason, I feel that you are being misled as to the legal capabilities or to the legal competency of that document.

And for that purpose, I think that if you want to receive that kind of review from outside council, you should be giving them the most recent environmental documents approved by the planning commission.

If you want to go on that, then I have prepared a long list of all the corrections and modifications that I feel would be adequate to make that environmental document legal.

Or at least a lot closer to being legal, if not legal.

It is legal, but more defensible in the court of law.

And that's what I've passed out to you.

If you would like, I'll read the entire document, given the time.

Or if you prefer to review it yourself, that's fine.

>> If I could just interrupt with a question.

For my purposes -- >> Just off my time?
>> We'll stop the clock for 15 seconds.

>> I would like to see this document that represents itself as a more recent mitigated negative declaration than the April 6th document.

>> You don't have a copy of the May 14th planning commission decision and findings?
>> You're talking about planning commission decision as part of the negative declaration?
>> Findings and mitigation measures.

>> If you have a copy of what you're talking about, why don't we get it so we have it in the record?
>> Yes.

>> We have that in our packet, Richard.

>> My point being is it appears as though perhaps Mr.
Judd didn't have that information when he gave his opinion.

>> Just so that the record is clear, this is a letter dated May 14th, 2001, addressed to Bill Spann and signed by Ruth Poulter as the chairwoman of the city of Nevada city planning commission.

>> If I've understood your letter, Richard -- >> If I've understood your letter, Richard, that if these items are to be mitigated, the appropriate way to mitigate them is through a new environmental review, not through the process of debate at the council table.

>> Well, let me just say that if I were the developer's council in a case like this, I would not want to proceed with an approval of the project based on the record as it stands now for the same reasons as are spelled out in the memorandum.

I'm not clear what public circulation, if any, this document received.

I'm not clear that it was intended as a restatement of the negative declaration in the first place.

I'm not clear when it was made available to the public.

So I think even if you were to assume that it fixed all the problems, which based on my review, I would not say that it did, I'm not clear that it would be adequate for the purposes.

>> Thank you.

>> The other thing I wanted to bring this up is that the document that has been stated in his letter, the review, was dated April 6th.

It was the first draft of the proposed mitigating negative declaration.

It was full of a lot of ambiguities.

There were a lot of things that needed to be corrected.

There was questions being asked.

There was recommendations.

There were statements that we've got to do this, we've got to do that, got to move the tank out, you know, so on and so forth.

All that -- not all.

A lot of that has been done.

There are still items that are calling for further study and for additional documentation to be provided prior to issuance of a billing permit or grading permit.

My point is, is that had Mr.
Judd reviewed the document that he's just been handed, I think that he could have incorporated -- you know, been able to reduce the number of corrections that he felt were necessary for that environment.

That's my whole point.

It wouldn't be as onerous of a task.

Because a lot of it has been done.

He didn't have the knowledge and the information to do that.

I'm not blaming him.

I'm just saying -- perhaps suggesting that he didn't have all the facts.

>> Could I just -- just for the record, this document, this letter that was signed by Rick, I think it's a very good question.

I think it's a very good question.

I think it's a very good question.

Yes, you did.

Because it was so late in arriving.

Thank you, Kathy.

My point being is that he didn't have all the facts.

What's being reported to you is not based upon current information.

I'd just like to wrap up real quickly by stating that we've conducted a market study for the project.

It reflects a need for 611 units.

Now, that's not just a market area of the strict city limits of Nevada City.

Sure, it's expanded, but it's a significant number.

I'd also like to mention and reiterate that prior city approvals on this property include a 60-unit elderly apartment complex on an 80-acre portion of this property in which the city approved a mitigated negative declaration.

I have a copy of that document, and it clearly does not have near the conditions and concerns as our 80-unit apartment complex.

In addition to that, a 56-unit density transfer was approved by the city by a mitigated negative declaration on the balance of this 13-acre parcel.

So the city has taken actions to approve either projects or zoning transfers on this property through a mitigated negative declaration process within the last two to three years.

I think the extent and degree -- and that's what, 60, 56?
That's what, 116 units that have been approved and not approved, but land duly designated for up to that number of units.

But yet mitigated negative declarations were approved on those two actions, whereas we're here contemplating an EIR on an 80-unit project spread over the entire 13 acres.

I just want to get that in the record and hope that you'll take that into consideration.

It's also been somewhat reported that there are perhaps as many as 80 illegal housing units in the community.

This affordable housing project could give those tenants an opportunity to move into a more desirable, more suitable living quarters and could give the city the ability to do something about those illegal units.

This is a transfer of tenants within the community.

Let's have respect for everybody.

Let's respect each other.

There are two sides in this room.

One side laughs and the other side doesn't.

Come on.

Let's be fair.

A couple other items is that this is one of the few sites in the county that has proper zoning and proper utilities available to it for multifamily housing.

The Affordable Housing Task Force did a great job on a report that brought this out, identified all the sites.

They also indicated that there's a need for 4,100 units of affordable housing.

Now, I don't know how that breaks down into terms of what Nevada City's fair share of that is.

Perhaps someone can speak to that, but I don't know the number.

I would think that, gosh, you would think you'd be responsible for a fair proportionate amount to your population, to the county, perhaps.

In any event, that's going to equate to over 80 units.

So I just feel that the city has a responsibility to do their fair share in providing affordable housing.

And also, I just want to reiterate and make sure that there's no misunderstandings that we are willing to do what we can to contribute to the offsite improvements and the utility system infrastructure in the community.

We've offered $50,000 to help improve water pressure throughout the city.

Yet, in addition to that, we're mitigating our water pressure issues onsite with a holding tank and over-sizing it above and beyond what the fire protection requirements are to minimize our drain on the pressure in the city.

We are also willing to -- we've agreed in the Planning Commission to do the improvements for the offsite sewer line.

And we've also offered an alternative to that that would perhaps reduce that cost.

And we have expressed a willingness to provide the difference to the city to do other infrastructure improvements to sewer lines throughout the city to help out in that respect as well.

In addition to that, I believe -- and perhaps staff could correct me on this -- but I believe that our contribution to water and sewer connection fees and impact fees for this project is over $330,000.

That alone will go a long way towards helping mitigate plant expansion, replacement of incremental parts in the facility in addition to the offsite improvements that we're willing to do.

With that, I'll conclude unless you have any questions of me.

>> The 330,000 borough is the total AB 1600 fees?
>> I asked the applicant last night about that.

In his presentation to the Planning Commission, which he said is part of this document, he's asking for relief.

So he's saying if he pays AB 1600, he doesn't want to pay any other mitigation fees.

That's exactly what he says in his proposal.

He's asking for one or the other.

>> I think we need to get that clarified.

>> I'm here to clarify that we're willing to pay our full fees and do the offsite improvement that was referred to in the Cranmer report with an estimate of $70,000, but I've been told it's probably closer to $100,000.

So this is why I've referred to this number of $100,000.

In addition to paying our fees for water and sewer, we are also making an additional obligation of $50,000 to the city to make further improvements in the water distribution system to where the city feels that it's best needed.

>> So just to repeat back, since we're talking about a lot of money, you're paying all fees, AB 1600 and the water and sewer connections in addition to the letter which you gave me, gave the city of the 50 and basically the 100,000.

>> Yes, sir.

>> Kathy, we prepared what Jen certainly handed out, what we think approximately based on as we understand the project, what the total AB 1600 fees based on 80 units and the water and sewer connection fees, the total fees for all services would be probably something in about the 670,000 range, but Bill has alluded to what portions of those would be water and sewer and under AB 1600 based on 80 units and these were done yesterday.

So they could be slightly off, but we would believe the sewer under AB 1600 is 81,000, water is 118,000.

The sewer connection, the normal collection fee on sewer outside AB 1600 is 38,000 and the water connection is approximately 60,300.

>> So in clarifying that again, the total that would be collected then under required collection fees plus the approximate 150,000 that they're kicking in tonight comes to?
>> That's correct.

>> Comes to what?
>> So the total under collection of fees outside of Bill's proposed letter is he's at 330,000.

That's a good figure.

Using these figures we come up with approximately 300,000.

>> We may figure a little high for inflation, but I'm taking that from here to perform.

>> AB 1600 fees are used to fix the infrastructure, not to expand the system, is that true?
>> Well, they are for AB 1600 would go into the water and sewer system for improvements to the system.

I guess the best answer I'm going to give to that question.

So the total amount of fees potentially here if you take the letter of which the council has from Mr.
Spann dated June the 7th and you have the potential of 150 plus 300, approximately $50,000 for water and sewer.

>> So you're changing your proposal.

You're not asking for relief of any fees now.

Make sure I understand that correctly.

>> Right.

Just to make -- clarify what I had said originally was intended by what I presented.

>> I have a quote here.

>> That's fine.

I have a 2.

Everyone else has it as well.

>> Why don't you read it?
>> Okay.

We are willing to construct a new sewer line as described in the Crammer report.

This is what was presented -- I'm sorry, let me back.

This is what was presented to the planning commission on May 10th.

Under utility and services mitigation.

We are willing to construct a new sewer line as described in the Crammer report of December 12, 2000 or alternative plans approved by the city engineer as I alluded to the possible going the broad street direction.

It is likely the city will need to cooperate in efforts to gain easements to construct the new sewer line and respectfully request that assistance from the city.

We request that any sewer impact fees to be charged to our project be reduced in fair proportion to the cost of the sewer line improvements we are constructing.

If permissible by AB 1600.

I think that's what you are alluding to, Bill.

Okay.

I'm saying what we are hoping for is that if a portion of those fees would be utilized and was targeted to go towards infrastructure improvements, that portion of our fees can be used for this improvement line that we are doing.

I'm saying right now at this point, use the fees however you want.

We will do the $100,000.

We will pay our full fees.

Do whatever you want.

But we would like to receive or would appreciate the city cooperating with us in a reimbursement agreement for any future connections on to those lines.

I think that's only fair.

I think the council should recognize that I'm not prepared to stick with those fees at this time for improvements to any part of the system.

What do you mean stick with those fees?
You don't think it's enough money to cover the improvements?
I know it's not enough.

The fees in terms of the AB 1600 fees?
No.

The fees to the sewer line?
AB 1600 is fixed.

Okay.

Well, okay.

That's into my spiel.

Good evening.

My name is Gary Horn.

I'm a civil engineer with the Hymabian Horn Engineering 1300 East Shaw Avenue in Fresno.

What I would like to do first of all is talk about the site plan a little bit.

First of all, I would like to give you just a brief evolution of the site plan.

This is the original site plan that was submitted for the preliminary review.

This is the site plan that was submitted with the initial application about the 1st of March.

I'd like you to just take a look at both of those.

There's been a lot of talk about many, many changes to the site plan, but I think you'll agree that the basic layout from both of these on and even continuing on to the site plan that you have in your packet, which was reviewed by the planning commission, is essentially the same.

Let's talk about -- If I could just interrupt for a second.

Could you read us some identifying information off the two of those so that, again, we don't have to go through this confusion at any point in the future?
Sure.

The very first one, preliminary site plan was prepared by -- it has title block of AHDC.

It's dated 9/21/00, and it's labeled preliminary site plan Pine Meadow Apartments, which was the original name.

The second one is labeled site plan.

It's prepared by Yamabi and Horny Engineering, and its last revision date is February 23rd, '01.

You didn't prepare the first one?
No, the first one was prepared by our landscape architect.

And I might add this one was prepared -- that's the first shot out of the gate before any of the special studies have been done, before the wetlands have been delineated.

This was prepared after those studies were done.

So I'd like to -- I'd like just to run through the things that have not changed.

Number one, the number of units.

It always has been 80 units.

Number two is the number of bedrooms.

We have not changed the mix.

And those are important because those fix your population, the population of the project, and those influence impacts such as sewer and water usage, traffic generated, and to some extent the noise.

So those have not changed from day one.

The driveway access to Chief Kelly Drive and its terminus out to Broad Street was also fixed.

Now I would like to run through just briefly the items that have changed since the initial submittal.

Number one, the elevations have changed.

The local architect, Gary Hart, did a wonderful job on those elevations with our footprints.

The location of the water storage tank changed.

As you can see, the initial location was out here by Broad Street.

And as a result of the mitigation measure, we moved it over to this location.

It is right now set back 15 feet from Chief Kelly Drive.

Our intention was to get it away from Broad Street and away from Highway 49.

Now if it pleases the council, we can move it farther off of Chief Kelly Drive.

But because of the water system, to me, it makes more sense to locate it somewhere up here because of the water main that will be coming down Chief Kelly Drive.

And we will be screening it with trees.

The grading has changed.

We worked very hard to reduce the amount of grading that we were doing.

We ended up going to a lot of retaining walls and then we made a change to remove as many of those retaining walls and add pony walls to the homes.

We have moved some of the buildings a minor amount to respect the set backs from the streams.

And all of those changes that I listed were at the request of city staff to better the project.

And we think we do have a better project now than when we started.

And that's the normal course of events in a project of this kind.

Next I would like to just briefly touch on the sewer.

As was stated last night by your staff, the current plant is running about 0.

4 mgd.

The rated capacity of the plant is stated at 0.

7.

So that means you are at 57% of your permitted capacity.

That doesn't mean that you can automatically turn on a big spigot and jump from 400 to 700.

We understand that there are facilities within that plant that need to be upgraded.

But the basic structure, the basic major components of the plant should be there in order for you to be permitted at 700,000 gallons to begin with.

So -- and I agree with Bill that there may be -- need to be some improvements.

But those -- that is what AB 1600 fees are for.

In fact, cities are required to make a connection between the amount of the fee and the need of the project that causes the expense of that improvement.

In other words, you have to show when you adopt AB 1600 fees what you're going to be paying that money for.

Our project will be adding approximately 33,000 gallons per day.

That's about an 8% increase.

A 10% increase was talked about last night.

But I feel that even though we are in the 10% of the population, because of the tourist population that is not counted in that 3,000, a slightly lower figure might be appropriate.

I used -- I used -- >> I disagree with that number.

My number last night still stands.

>> I used a population of 300 people in our project with 110 gallons per person per day.

>> Excuse me, Jim, but you did not.

In the figures you gave me, you used 234 population.

>> That's correct.

I've used 300 people based upon the evidence -- the discussion that was last night.

So I would agree with the 300 people.

>> You used 240 in your calculation.

>> I did.

And I also used a higher figure on the gallons per day.

>> I used 300 with the gallons per day.

>> Why don't we just let them make your presentation and you can make your comments afterwards.

>> I'll decide what to say, okay?
>> As far as the collection system, Bill Spinn has indicated that we are willing to make the improvements from the Cramner report and that we would also, as an alternative to that solution, install a lift station and pump to spring street.

On the water system, we are providing a storage tank on site.

And this is information that we talked about at the planning commission meeting.

We are providing a storage tank on site to provide number one for fire flow.

And in my original calculations, we wanted that to be 144,000 gallons.

What I have here is a chart of the typical water usage that we would expect from a residential project.

As you can see, it peaks in the morning and then there's another peak in the evening.

What we proposed at the planning commission was to increase the size of the storage tank to allow us to cut those peaks off so that our maximum pumping rate would not peak as the normal system would.

So this would allow us to impact the surrounding distribution system less.

So during these off peak times in the evening, we would be filling our tank back up.

During a peak maximum day, our flow would be about 110 gallons a minute.

On an average day, it would be about 55.

Maximum peak on the maximum day would be about 165 gallons a minute.

So that's what we're proposing to mitigate impacts on the water system.

Last of all, I'd just like to talk about the grading.

And let me just conclude by saying that Bill gave a very good description of the detention basins last night.

And they are designed to mitigate the amount of runoff that will be created or generated from our project over and above what the normal runoff is.

And those would be sized according to either the city standards or Nevada county standards in those absence.

That concludes my remarks, and I'd be happy to answer any questions.

Thank you.

Okay, and according to the official timekeeper of the Nevada City Council, you've got 13 minutes left in your 45 minutes.

Well, I think a good 6-7-8 minutes were used up by questions from staff here that kind of ate into our time for a few minutes ago.

So if you could give me a small amount of leeway, I'd appreciate it.

Also, the appellants were granted approximately 49 minutes.

Could you move that mic closer to you?
No one can hear you.

Beg your pardon?
No one can hear you.

Move the mic closer.

Ronald Jones, Legal Counsel for AHDC, 219 North Daugherty Street, Hanford, California.

Mr.
Mayor, ladies and gentlemen, some opening comments.

CEQA, as you probably well know, was adopted to accomplish a number of specific statutory goals.

Those goals include encouraging systematic and considerate efforts between private and public sectors with respect to the interrelationship of public policies and practices.

Second, assuring the long-term protection of the environment is consistent with the providing of decent homes and a satisfying living environment.

These are guiding criteria for public decisions.

In 1976, the California legislature declared that the policy of the state that public agencies should not approve projects as proposed if there are feasible alternatives or mitigation measures available, which substantially lessen the significant environmental effects of such projects.

Thus, given this state declaration, should mitigation measures be available, which substantially lessen significant environmental effects, projects should be approved.

In California's affordable housing legislation, it is noteworthy that the law clearly states that public agencies shall not reduce the proposed number of housing units in a project as a mitigation measure for a particular significant effect if there is another feasible mitigation alternative that provides a comparable measure of mitigation.

In the case of the citizens of Goliida Valley versus the Board of Supervisors, the court rules adopted by the state regulating the protection of the environment, it was held that they must not subvert these rules and statutes into an instrument for the delay of social, economic, or recreational development and advancement.

The Rio Vista Farm Bureau versus County of Solano case in 1992, the court held and announced that a fundamental objective of CEQA is to facilitate the identification of feasible alternatives and mitigation measures that will avoid or substantially lessen significant environmental effects, not to deny projects.

California Code of Regulations specifically recognizes that there is not only a duty of the public agencies like yourselves to minimize environmental damage, but there also exists a mandated duty to balance the competing economic and social objectives, including affordable housing goals.

This is straight from the state statute.

Regarding specific legal issues that have been raised in the last couple of days, one was the issue of the payment of fees late or in advance.

All the fees were paid.

There is no legal authority at all that calls into question either the illegality or effectiveness of a mitigated negative declaration depending upon the timing of the payment.

The developer was not subsidized.

There was a question about home funds.

People were arguing that this makes the city a partner of sorts and puts the city at risk.

That is not the case.

A home fund loan would be the obligation of the developer and the owner of the project guaranteed by the tax-exempt organization, the managing general partner.

The city is not on the hook for that obligation.

As far as the housing element issue, the governmental code section 65589.

5d1 states that a jurisdiction can disapprove an affordable housing project if the housing element is in compliance with the law and the units are not required to meet very low or moderate income housing.

However, your housing element from everything I can discern is not currently in compliance.

Therefore, this city council cannot deny the project based on any lack of need or perceived lack of need.

That would be contrary, specifically contrary to the statute.

Argument was made that the city, there is no city obligation to help the developer, but I must note the city cannot stand, given its duty under the affordable laws, cannot stand in the way of legitimate property uses that are consistent with zoning.

A question was raised as to variances, and I believe Mr.
Johnson even cited from Longton's California Land Use Authority.

The city has zoned this property for multifamily use and gave these parcels up to 124 potential units for development.

This was a city decision before AHDC became a potential developer and became involved in this project.

The use here has been expressly, the type of use here has been expressly authorized by the city.

The project allows a use that is consistent with zoning, but there are obviously sometimes issues that arise with the development of real property that require variances.

The variances are a constitutional safety valve to permit administrative adjustments when the general zoning rules produce unique hardships.

I also would like to quote.

.

.

[no speech detected] .

.

.

from the developer's bible.

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 property owners in the same district.

The purpose of providing variances exists because it is recognized that within a given zone there will be individual lots or tracks that because of peculiar shape, unusual topography, or some other similar peculiarity, cannot be put to productive use if all the detail requirements for that zone are to be strictly applied.

Hence administrative and quasi judicial procedures are established whereby the owner of such a piece of land may be allowed variations from the strict letter of the law.

Typical of such variations are those relating to setback lines, proportion of building to lot size, and other similar deviations.

The concept is that the basic zoning provision is not being changed, but the owner of the individualized parcel was allowed to use it in a manner basically consistent with the established zone, but with such variations that will put him on a par with other property owners.

The problems with the property that require the variances that have to date been approved by the planning commission were not of the developers making.

They are of historical making, they are of geographic making, and the variances are proper and necessary in this particular situation.

There's been an argument that the lots should be smaller, that the merger of the lots should be disapproved.

There's no legal authority for that.

There is no violation of any specific lot this time created by the lot merger, and there's no legal basis to withhold the lot merger.

The issue of the clearinghouse and the 30-day notice is being kind of left out there hanging under California Administrative Code, 14 section 15105B.

A public review period will be 30 days when a proposed negative deck is required to be submitted to the state clearinghouse, but it is the planning commission's obligation to determine the necessity for this.

Typically, clearinghouse applications or notification are the result of issues that have statewide or regional importance.

That is not the situation here.

What you have here is issues of local importance, and you have had comments from Northern Sierra Air Quality Management District.

There have been biological resource assessments, wetland assessments, cultural resource assessments.

There has been contact with various Indian Native American personnel who have, in fact, responded via the letter from the Native American Heritage Commission saying there were no significant Native American issues here.

The Department of Transportation has commented on this project, likewise with the Fish and Game Department of the State of California, and the necessary notices and procedures adopted by the planning commission, I think, are not in violet of state law and do not require clearinghouse notice.

As to the historical preservation issues of the mining site, the first use of hydraulic mining in California, the simple listing of private property on a historical resource's inventory is not of itself a substantive restriction on an owner's use of real property.

The Council has in its packet, I believe, an excellent analysis by Peking Associates evaluating the effect of this project on the historical significance of this area.

There is somewhat incongruous that people now want to revere a situation that would no longer be accepted use in the state of California.

If anybody wanted to come in here and do hydraulic mining like that, it would be voted out in a heartbeat.

But the act did exist.

It does play an important role in the history of California, but not the kind of role that would be deterred from observation, that would be hampered by the development of the project, and the mitigation provided for that issue is in effect.

I'm going to skip to Council's letter, and one reason we need the time we need tonight is that we didn't receive your outside Council's legal opinion until Monday.

It didn't give us much time to deal with the issues he addressed.

There are two cases that he cites in his legal opinion.

One case deals with the issue of not having a complete record as being a basis for not approving a particular project.

The Sunstrom case that he cites is a case that was a proposed waste disposal system, and the Sunstrom court stated that the true test says to the adequacy of an agency's procedures is whether a good faith effort to comply with CECOA is demonstrated.

In Sunstrom, there was no good faith attempt to comply.

That's not the situation here.

Everybody has attempted to comply.

Based on that particular case, Council has argued that there are post-project approval elements that need to be completed, and that makes the process potentially challengeable and illegal.

There's a case of Laurel Heights that stands for the proposition that although an assessment of environmental issues cannot be deferred until after project approval, an agency can commit to post-approval mitigation measures as can be feasibly devised so long as the impacts are identified in the information available to the public authority that the impacts can be mitigated.

But unlike the very construction of a project itself, there are things that you can't assure until the project is underway.

That's why you have inspectors, and that's why you have approvals through the whole step of construction.

The mitigation issues have been identified.

There's a plan in place.

They may not be able to be fine-tuned until after the project has been approved.

But that is different than looking to determine if there's an environmental issue after the project approval.

We've determined what the issues are, and the mitigations have been adopted.

So we don't want to confuse the law that denies approval due to environmental assessments not yet completed with mitigation requirements that are imposed subject to post-project approval verification.

Upon the issuance of a mitigated negative deck, a project opponent must demonstrate -- that's the appellants here tonight -- by substantial evidence that the proposed mitigation measures are inadequate and that the project, as revised and/or mitigated, may have a significant adverse effect on the environment.

Appellants opposing this project have not accomplished that.

They have presented an inquiry, innuendo, empathetic speech, questions, and a motion to this Council.

Substantial evidence is evidence that has a ponderable legal significance, is reasonable in nature, is credible, and is relevant of solid value.

Arguments, speculation, and unsubstantiated opinion or narrative are not substantial evidence.

I don't believe that appellants opposing this project have provided substantial evidence that rise to the level that would be required to enforce their appeal.

Argument has been submitted that the population increase this project may generate is a problem, an environmental problem.

Well, partly yes and partly no.

This is a constitute that constitutes an argument concerning economic and social change.

Issues of traffic resulting from increased population, water, sewer, et cetera, those are environmental issues for review.

But economic and social change itself, the very fact that you're going to have a 7%, 8%, 10% increase in the population alone, is not an issue to be treated as having a substantial environmental effect and is not subject to either review or mitigation.

The state of California has clearly and unequivocally expressed the will of the people of California to advocate for and strongly support affordable housing.

That's a fact.

You might want to be aware that a finding of a discriminatory act by a public authority can result in potentially severe consequences.

Government Code Section 65008 strongly prohibits acts which discriminate unfairly against affordable housing projects.

In a case called Keith v.

Volpe, 618-F Supplement 1132, the court held that even the very existence of a discriminatory effect by agency action is of itself sufficient to establish a violation of law.

And I'll leave it to your legal counsel to explain to you the ramifications of being found responsible for discriminatory housing decisions, but by creating conditions that make affordable housing projects uneconomical, an agency has engaged in de facto discriminatory conduct.

Closing up here, just be a moment.

A couple things that can happen tonight.

The council can approve the project through its various voting mechanisms, in which case I have no doubt that the good citizens of Nevada City would probably bring a lawsuit to have that decision overturned.

If that were to happen, the project would be put on hold.

If the citizens prevailed, then the project would have to either be abandoned or start completely over again.

If the developer prevails, then the project would move forward.

If the project is denied, potentially a lawsuit by a developer is in the works.

If the developer sues, the city might prevail.

And again, we have the same result.

The project is dead in the water.

And if it's going to be resurrected, it would have to start all over again.

If the developer sues and prevails, then the jurisdiction could be found guilty or at least exposed to significant monetary damages.

We believe the work has been accomplished, the information is available, the city should deny the appeals of the opponents to the project and support the appeal of the developer.

One additional possibility, and your attorney has raised this possibility in his letter in three locations in his report.

First he stays on page one that he strongly suggests the city not act on the apartment project based on the April 6th document.

He goes further on page four of his letter of June 8th that he strongly recommends a more precise description of the project be prepared for environmental review purposes.

Finally, on page seven, he states that the memorandum is not meant to suggest an EIR will necessarily be required or that the city must decide immediately to prepare one.

My recommendation is that the city not act on the project until either a specialized environmental consultant or city staff has gone through the potential impacts and proposed mitigation measures for the project one by one, incorporating all the information now available and making the mitigation standards as clear as possible.

The developer would very much like to see this project approved, but the developer also having reviewed the last two nights and tonight's proceedings, it is clear to everybody that there is at the very least a great deal of confusion.

There's been some confusion as to the maps and the packets, there's been some confusion as to which report we're looking at.

There's been some confusion with regard to your attorney reviewing a document that was somewhat antiquated.

It was a draft mitigated environmental report, negative declaration, as opposed to what was later reviewed and put forth and passed by the planning commission.

So there has been new information provided by your own staff last night, and there is, I think, at this juncture, a real possibility that in either case of approval or disapproval, that the findings, whatever they might be that are made in either of those circumstances, would not be supportable.

Again, we would prefer approval.

We would prefer to be able to go forward with this project now.

But if the city, in its wisdom, were to decide, let's make sure we have a clear record, let's make sure that the staff has reviewed all the current information, that the current tree report, the current wetlands report, etc.

, are before it, and that a well-thought-out decision as to the mitigation efforts required, the mitigation efforts needed, and the issuance, hopefully, of a mitigated negative declaration will be in proper format to withstand any kind of judicial review.

Now, you have, and we have, a timing problem.

The CEQA law requires certain things happen in a certain amount of time.

But the code also provides for a stipulated extension of those timing requirements.

All things considered, the developer would be quite willing at this juncture in order to not lose the project and to make sure that we have a good record and a good review and a proper review of all the current documentation and issues would stipulate to an extension for the city to send this back to the staff and the Planning Commission to put the proper findings together to eventually come to a vote on this matter.

Thank you.

Thank you.

Just a quick question.

Mr.
Judd?
Perhaps this might be one of my typical convoluted questions, so bear with me.

I'm going to make you submit your questions in writing from now on.

I'll never see you again.

You'll come back on vacation next time.

Have you heard or seen anything in the past two nights and a half, two and a half nights, that will cause you in any way to modify the opinion that you initially offered us?
My recommendation stands.

Thank you.

Okay.

Then.

Can I suggest you take a 10 minute recess, just because there's a lot of information that just came out, which was, again, contrary to what we were led to believe we left here last night, and it would be helpful for the appellants because, like, on the one hand, we've got our seven minutes.

On the other hand, we're sort of thinking that this is a collective.

I think it would be helpful that rather than us get redundant and start all responding to the same thing one after another, have ten minutes to talk about it.

I have no problem with that.

Okay.

We will take a exactly 10 minute break.

Okay.