Thank you.

We are welcome to the Planning Commission and Design Review joint meeting, special meeting to discuss overview of AB 130 and SP 131 changes on the planning review process.

One to the planning commission personal.

Thank you, Chair.

For planning commission role.

Commissioner Moran has indicated he will be absent tonight.

So Commissioner Cown.

Here.

Commissioner Strongman.

Here.

Commissioner Quok.

Here.

Commissioner Klopp.

Here.

Vice Chair Knighting.

Chair Anderson.

Design Review Commission.

Commissioner Riley.

Here.

Commissioner Case.

Here.

Vice Chair Basing.

And Chair Newsom is a no-show.

We do have a quorum.

Okay.

Thank you.

Because this is a special meeting, public communication that only can only be related to this.

Yeah.

To this topic.

So excuse me.

Because public communications probably related will be related to this topic.

We're going to uh hold the presentation first.

We've had that presentation.

So then we come to uh attorney regarding the new CEQA exemptions under AB 130 SB 131.

We have a staff report.

Yes, we do.

But before we do that, I'd like to um just just uh give a shout out to Commissioner Gourney, a long-time design review commissioner is in the audience tonight to learn something new about CEQA.

I just want to tip my cap.

Joseph was a great did a lot of great things for the city.

Um that said, uh some commissioners um in response to the uh governor's signing of assembly bill 130 and Senate Bill 131 have asked to get uh trained up so to speak on how these two bills affect CEQA.

Um our city attorney's office Claire Lye is kind enough to put together a presentation that does a few things or does does more than just that.

It kind of gives a primer to CEQA itself and and kind of a just a basic CEQA primer to get into what these things do or or help set up help set up help set up the scene for projects and things that are subject to CEQA.

So that said, we'll just get right into it.

Yes, thank you, Chip.

Good evening, Chair, Commissioners.

Just try and fix this.

Okay.

So yes, so here today I like to talk to you about um these two budget trailer bills that does a number of things, but tonight we're going to focus on the changes to one, the um actually planning review process and two the um provisions of the California Environmental Quality Act CEQA.

Um so we thought it'd be helpful to before we get into what's actually in the bills to go over a little bit about what is a housing development project, because the changes introduced by those bills that we're talking about tonight relate mostly to how housing projects are reviewed and how they're um potentially can be exempt under CEQA.

And so we're gonna talk a little bit about what is a housing development project, um, as that term is used in the various state housing laws and then the process for reviewing such a project, and then we'll give um an overview about what the sequel review process entails.

Um I know some of you um work very closely with CEQA and have expertise in that area, so this will be a very high-level overview.

Um it's not going to speak to the details, but we're happy to answer those questions, but this is intended to give you some background so we can better explain the changes, and then we'll go into the one the new CQA changes under AB 130 and SD 131.

Um, and then how that in turn changes uh along with the amendments brought by AB 130, the land use review aspects of it.

So we'll get right into it.

Um, on to housing development projects.

Um, so a housing development project, you might hear uh a lot about the HAA, SB 330, the permit Street Lining act.

Um those state laws um govern what we what is uh show on the screen here as defines a housing development project.

Um that is one residential unit, so that's typically more than two units.

A mixed use project, so both residential and non-residential with two-thirds of the floor area or development area for residential.

Some large mixed-use projects, over 500 units and meeting certain demolition criteria, and also transitional and supportive housing and farm worker housing.

So those five sets of project description.

They constitute what the law treats as housing development project and what the state housing laws treats as you know, it requires findings able to streamline it, it gets the new CECO exemption under these new bills.

And also the primary state laws that govern housing development projects are the Housing Accountability Act, which mostly deals with the substance of the review, and as well as Senate Bill 330/the permit streamlining act, which deals with the process of reviewing a project.

So from the submittal of the application when it comes in, how long does the city have to process the application and the procedural steps in treating the project?

So the first concept we want to talk about is the SB 330 preliminary application.

This is a new tool that's introduced in 2019 or so, and that gives the housing development project the ability to send in to the city a preliminary application that is going to vest the applicable standards regulation at the time of the submittal.

And this is a very simple submittal, it's just 17 items in the statute.

If the preliminary application provides it, it's considered submitted, and the city is not able to apply standards or regulations that are adopted or created after that submittal.

The law has certain provisions about how to maintain this.

There's what we call vesting, the main maintenance of your development standards and your ability to be subject to the then-in-effect standards.

So the one the preliminary application will expire if the project is changed after the submittal by more than 20% in square footage or units.

So they have that Delta a lower than 20%, they can make the change, but if you change your projects, substantially more than that, then you have to submit a new preliminary application.

And again, this the purpose of this submittal is to freeze the zoning, development, subdivision design standards that are in effect at the time of submittal.

There's some minor exceptions like a fee adjustment or like a CQ mitigation measure, as we'll talk about later.

But mostly it's to freeze development standards so it gives people certainty as to what standards will apply, and also with C staff about what you know what the city can apply for the project.

The again the application, the preliminary application, after it's submitted, the applicant has 180 days to submit a full development application.

So what that means is that the city of Warner Creek has, like other cities, a planning application checklist, and it says, you know, if you want to get design review, want to apply for CUP, you want to apply for some other entitlement, you gotta submit these documents.

So the applicant has to provide that based on the checklist, and within six months from their preliminary application submittal to maintain that vesting, and so they don't have to start over.

So once the application comes in, the city has 30 days to decide if it's complete, and that means is it um providing all the items that's on the application checklist that I was talking about.

So the city has 30 days to decide if that's um complete, and if it's not, the city sends the applicant um a common letter.

That's what um staff does here, sends a common letter and saying, you know, you're missing this report, you're missing this, this um you know, drawing, this plan, please give it to us.

And then the applicant has 30 days to bring that information back.

Um, or they typically bring it back within 30 days, but that cycle kind of just resets every time they resubmit, and we inform them if it's complete until the application is actually complete with all the things that are on the checklist.

Um, and the important thing to know from this is that if the city misses that 30-day timeline, the application is deemed to be complete.

So the city is legally not able to ask the applicant for the additional information.

Um, so it's very important to keep keep in mind that timeline as the city reviews the application.

Um, so next, uh, once the application is complete, the city will review for um consistency with applicable standards.

So here comes the housing accountability act, and it has a requirement about when the city has to tell the applicant if the project is consistent with the applicable standards.

So depending on how many units are in the project, um, if it's a hundred units, 150 units or less, it's 30 days from receipt of the complete application, or if it's more than that in 60 days, practically speaking, the city does it does this review the same time as a complete application review.

So the common letter will say you're missing you're missing these things from the checklist, but also you know, we wanted to let you know, you gotta do um the traffic study, or you gotta you gotta design the traffic um turnout in a certain way, you gotta, you know, your height doesn't comply, or you know, your density doesn't comply.

So it has that progressing concurrently in reality, but this is the timeline to do the consistency review, and if the city does not respond within that timeline, again the project is deemed to be consistent.

So again, that makes it um difficult for the city to later say, you know, your project doesn't comply with our standard and you must revise it.

So again, that's important to um keep in mind.

Um, and then finally, at the time of the decision, um, the city, if the project complies with what we refer to as objective standards, and that is you know, as many of you are familiar, the city has gone through an extensive process of adopting objective design standards, and that's that's standards that do not require any personal um judgment, it doesn't require discretion, it's basically you can somebody can come and decide, compare it to a benchmark that everybody knows and it's published, and you can say, for example, like height, that's objective standard, it's comparable against a number, and so it doesn't require any discretion on the um behalf of the person making the decision.

So the project complies with objective standards.

Um, the city's and the city is deciding that it would deny the project or lower the project density, then it has to make a finding that there is a specific adverse impact um that cannot be feasibly mitigated without denying or lower the density.

As you can see here, this is a pretty um significant threshold because it's gotta be uh significant, direct, unavoidable, and it has to be based on an objective standard that's already written down at the time of the preliminary activation submittal.

So the burden is on the city to show by preponderance of the evidence that means 50% of the evidence in the record supports the finding that you know there's a need basically to deny the project or lower the density of it.

So that is the overview of how a housing development project comes through to the city from the middle to the decision point.

But before the city makes a decision, it's got to comply with provisions of CEQA.

And so when does that apply?

Um, whenever the city is making uh a decision on a discretionary project, and that's pretty broadly defined.

That's any action development project or similar activity that the city commits to or approves, and there are common examples like a CUP, a tentative map, a development agreement, you know, general plan amendment, zoning amendment, those are all common examples of a project.

What is not a project for purposes of CEQA is one ministerial projects.

So that's SB9, ADUs, building permits, grading permits, encouragement permits.

So anything that does not require the city to exercise discretion and it's simply just checking off a list and making sure that it complies with requirements and it's approved.

Also, activities that have no possibility of a significant environmental effect, they're also not considered a project.

So, you know, for example, a hiring of a new employee is not there's no possibility of an environmental fact because it's not making physical changes.

That's not a project for the purposes of CEQA.

And finally, projects are denied or rejected by the city.

This is pretty self-explanatory.

If you deny a project, you know, obviously you don't have to determine what the environmental impacts are.

And CEQA comes from the authority is from statute under the public resources code, and also there are guidelines put together by the state.

That's in the code of regulations, but those together they form this body of law with environmental review.

So what are the steps in review in CEQA review?

As we talked about, is the project subject to CEQA?

And if so, is the project exempt from CEQA?

There's generally two types of exemptions.

One is called statutory exemptions, those are created by the legislature, they're codified either either in the public resources code or in some other body of law.

Typically, they're more defensible because they um because the court will defer to the intent of the legislature to say like these types of projects we decide are you know not significant enough to warrant environmental review.

So that's statutory exemptions, and then there's what's called categorical exemptions, um, and those are in the CQL guidelines.

They're developed by the state, and there are um because they are not statutory, there's a little bit more limitations.

For example, the guidelines say that if there's unusual circumstances that's particular to a project, then you don't get to use a CEQA exemption, you have to do a further environmental analysis, and so if there's no exemption that can apply, then we look at what environmental analysis documents should be prepared.

And I'm going to talk about three kind of the main types of CEQA documents, um, those are prepared by the city as what you call the lead agency in a project.

Uh and as the first step, the city will do an initial study, and this is a document that determines what level of impact um the project will have on the environment.

And you'll ask, how do you know what factors to look for?

Um, the CQA guidelines has a number of appendices and it has environmental factors that's listed, and so what we most often see is appendix G that lists a number of factors, um, you know, air quality, traffic, or transportation, noise, water quality, utilities, energy.

So it has a number of factors, and the study goes through them and analyzes whether or not the project you know has the potential of creating significant effects on the environment based on those factors.

If the project doesn't have the potential to do that, um, or if there are impacts but they can be reduced to less than significant, as the CEQA term, that's a SQL term of art, but if that's the case, then the city prepares what's called a negative declaration, if there's no mitigation that's required, or it prepares a mitigated negative declaration, which the difference is just the latter talks about how those potentially significant impacts can be mitigated or reduced to a lesser level with those measures.

So if these initial study concludes that there's more severe impacts, or for some larger projects, the city knows from the start that you know a more higher level of review is required, then it will prepare what's called an environmental impact report or an EIR.

The legal standard for requiring this is that if there's a fair argument that's supported by substantial evidence in the record, then that means there's enough evidence to support that fair argument, regardless of whether or not there's there's opposing or contrary evidence.

So if there's that, then an ER is required, and you have to analyze the project's effect on the environment.

This is the highest level of environmental analysis that is um that can be done.

Um the mitigation measures are required.

You have to, um there's uh a number of rules about what's has to be in an EIR, what has to, you know, what what review has to do, and so this is the highest level.

Um, you know, it's it's the most risk averse in terms of CEQA analysis.

But the bottom line is that the city has to make the SQL finding and determination before approving or committing to a project.

And so um in your staff reports or resolutions, you'll see that the CQA findings comes first.

Um if you're making a motion, the CQL motion comes first because the city has to make that determination before it actually goes on with the project itself.

So turning back, tying these two together, um, CEQA has some impact on when the city is required to approve or deny a project.

Um so the permit string mining act, again, that's the procedural rules about project review.

It requires the city to approve or deny a project 180 days from EIR certification or 90 or 60 to 90 days for housing projects, and 60 days from adoption of a negative declaration or an MD, and 60 days from an exemption determination.

And just to be clear, this applies to all kinds of projects, all kinds of developments in addition to housing.

Um, but it as you can see there's some expedited times for housing projects if you were to do an EIR.

So that is the um background and overview.

So we're now gonna go into what AB 130 and SB 131 brings.

Um, first we'll talk about changes to CEQA, and one of the most significant changes from AB 130 is the new CEQA exemption for urban infill housing.

This is a statutory exemption.

Um, it is grounded in the public resources code.

Um, so it's again very uh the courts will defer to it because that's the legislature's intent.

To qualify for this exemption, um, you have to be one a housing development project, and you have to meet the criteria that's outlined on the screen.

There's a size requirement for the project site.

Um it has to be less than or equal to 20 acres, or if it's a builder's harmony project, then it's five acres or less.

Um it has to locate within an incorporated city or an urbanized area, but that's practically all of California.

Um but it cannot locate on any sensitive lands, and this is a similar concept to um SD 35 where the statute lists number of locations, like you know, wetlands, national parks, um, conservation easement or hazardous material sites.

So you can't be on any of those those those lands um in order to utilize the exemption.

Um the use has to be what's called urban use, and that's also pretty broad, it's residential, commercial, um, pretty much anything other than open space, I believe.

Um, if the project has to be consistent with the general plan or zoning, so if the two is um not consistent, if you can you're consistent with one, then you're consistent with the other.

The project can rely on density bonus.

Um, as you know, density bonus if the project is eligible to receive that density bonus, which is uh a statute that allows affordable housing providers to get additional units with the receipt of density bonus, the project can get waivers and concessions from development standards.

So the project is able to receive a density bonus and uses a waiver to override a city standards, they're still considered consistent with the general plan or zoning.

Um, or the project is a builder's remedy, um, they're also likely to be able to use that to qualify as as being consistent with journal plan or zoning.

The project also has to provide the statutory density, which is at least 50% of the minimum density under housing element law, and that for Walnut Creek is 30 dwellings per acre.

So practically a project would have to provide 15 units to 15 dwellings per acre in order to qualify.

And then a project has to avoid demolishing historic structures on historic registers, and they cannot they cannot include uses as a hotel.

If the project basically after this year, you cannot include a hotel use in order to qualify.

So what happens if the project qualifies for the exemption because they meet those criteria?

One, the city has to conduct pribal consultation.

There's a set of rules about what that means.

Basically, it has to be meaningful consultation.

There's the engagement with the tribes, meaningful conversation with for a specific period of time.

And if the tribe and the city result in agreement about you know certain mitigation measures, or how to, you know, there's how certain activities have to be carried out, those things have to be included as conditions of approval for the project.

And on the developer side, uh, one, there has to be a phase one environmental site assessment done.

And this is basically a study to kind of see if there's hazardous material, the site conditions, it's a little bit less than what or more focused than what a CEQA analysis would do, but it's basically looking at site conditions similar to what you would do before you buy a property.

So that has to be done, and that can likely be a condition of approval on the project, because it just says that they have to complete it, but it doesn't, you know, doesn't say when.

So but they have to do it, um, or if the project is within 500 feet of a freeway, there has to be some design elements incorporated.

So, like I think they can't have a balcony that faces the freeway, um, they have to have some like height and design elements incorporated.

Uh, and then finally, if the project is a hundred percent affordable or it's over 85 feet, there's some prevailing wages and um union labor standards that have to be met.

And so turning to SB 131, um, unlike AB 130, which exemption is for housing, the new exemptions that are under SD 131 are for a variety of projects.

Uh, again, these are also statutory exemptions, so again, very deferential.

Um, and they cover specific types of projects, um, one that's more uh of more interest.

Recently is the rezoning to implement a housing element, many jurisdictions now are completing their rezonings to you know to to increase multifamily zones or to upzone certain properties to satisfy their housing elements.

So that's exempt from CEQA.

Um we've had uh other cities where where projects are ongoing with um childcare preschools that utilize this exemption for for child care infrastructure and also public parks and recreational trails is another one.

Um and then I'm gonna shift back to AB 130 because the bill also creates this other SEQA tool.

Um it's not an exemption, but it's more a of a streamlined review because it provides that if a project uh almost qualifies for an exemption, it gets to go through a reduced SQL level review.

So if this is referred to as the single condition or the near-miss provision, um it's available to housing projects only.

And it basically says if the project would otherwise qualify for the exemption but for a single condition, then you can have a limited environmental review.

So the review is only limited to the effects that are caused by that condition.

So for example, you know, with the new infill exemption we just talked about, the project, you know, has to be 20 units per or 20 acres or less.

If the project is 25 acres, then the review is does that five acre create some additional impact?

So it's very limited.

And again, if you do an EIR, it's only requiring a limited analysis.

So it's not expensive, and it's not costing as much money to do that.

And there are some criteria to qualify for the single condition streamlined review.

One, it has to be a housing project.

It has to be similar in kind to the listed exemptions.

So, you know, if they're trying to use a child care infrastructure exemption, they can't, or sorry, not that one, but if they're trying to use the infill exemption for urban projects, they have to be similar to what that exemption is entailing.

It cannot include any oil, gas infrastructure, or distribution centers.

And again, it cannot locate on those sensitive areas, natural protected lands, and then it can only miss one condition of a sequel exemption.

So if it has two, then it doesn't qualify.

So just what do these changes mean?

One, there's new options for shorter CEQA review, new exemptions, of course, and then the streamlining for the almost qualify provision.

I expect that would be very useful because we've a lot of cases where you know a project almost qualifies for an exemption, but you know, for that one condition, you have to go for before this exempt, before the streamlining came through, you have to go through a further environmental review that's very time consuming, costly, and so that's gonna be very useful.

Um projects that are ongoing that have not yet been approved, they can um take advantage of these exemptions or these provisions if they qualify.

Um, and then the SQL shorter SQL review potentially means shorter time frames under the PSA.

So that leads us to the land use changes under AB 130.

Um and the main one, or the first one we're gonna talk about is the changes to the timeline for approval under the PSA.

Um, well, first the law is now very clear that it applies that the PSA applies to ministerial projects.

Um there is some confusion previously because um the previous statute had said that PSAs don't apply, the PSA timelines don't apply to projects that don't require discretion, but some provisions were changed by the um SB9 and um the five hearing rules for SB 330 to say that it covers all types of housing, so there is some confusion about that, but now that has been cleared up and PSA applies to ministerial projects if it requires a planning entitlement from the city.

So that means um, you know, a project comes in and requires um some kind of design review or requires um the planning department to give clearance before it moves on to building permit, then that would be subject to the PSA.

Um, so the and then this the bill adds two additional deadlines to approve or deny a project.

Uh recall we had those lists from 180 days to 60 days, depending on when you do SQL and what type of SQL action is done.

Now there's a 60-day deadline from um receiving a complete application for ministerial projects, and recall that ministerial projects don't require SQL, so this is a timeline for um when the project comes in, you got to approve or deny it within 60 days, and then with that new urban infill exemption, there's a 30-day timeline to approve or deny from the conclusion of the tribal consultation.

So recall that the city has to do tribal consultation when the project comes in and it qualifies for the infill exemption under AB 130 from the conclusion of the consultation, you have 30 days to approve or deny it.

Um, and then just to note that the permit streamlining act still doesn't apply if there's no planning entitlement, meaning it just goes straight to a building permit, or it's you know, just requires grading permit and closure permit, demolition permits, those are those still don't apply.

So just continuing on about the tribal consultation uh approval requirement.

Um this is not super clear in the statute because it's a bit vague about when the timelines stop and start, uh, or what happens if you need additional information from the applicant.

Um, first off, if the project applicant notifies the city that it is eligible for this in-fill exemption under AB 130, the city has to request the consultation within 14 days from the notification.

The tribe has 60 days to request consultation, um, and if they do request it, then that consultation has to finish within at most 60 days because you're first given 45 days and you could extend it to 15 an extra 15 days, so it's a total of 60 days at most.

So, what happens is that after that conclusion, you have 30 days to approve or deny the project.

So that means it's a lot shorter time frame for the city.

Um, and it's not clear if you know what what does it mean when it applicant notifies the city?

What do they have to provide for the city to say, or are you eligible for the exemption?

And what if they notify the city and the city says, Oh, we don't think you're eligible for the exemption.

We think you need to provide X, and you didn't provide it.

So it's not clear what that means.

Um, I think the statue is is very um linear in thinking about, you know, the project comes one step after the other.

Um, there's a really factor in what happens if there's clarity um that's needed from the applicant or additional information.

Um, and then the second set of change also to the permit trade money act is that the the timelines in that law apply only if it's equal to or shorter than the timelines in other law.

So, for example, um the ADU statutes say that you have to approve or deny within 60 days from complete application, so or the SB9 says the same thing, so you have to apply a comply with those timelines instead of you know uh a longer timeline under the PSA if that's the case.

Um, and then another potentially significant change is that the new bill removes what we call a developer notice for projects that would be deemed approved.

So if the city does not comply with the decision-making timelines in the PSA, the project is automatically considered to be approved by operation of law.

But previously, that remedy only kicks in if the developer gives notice, so it has to um first post a public notice to the city that you know you're failing to comply with the PSA, and then the city gets an opportunity to hold a hearing on the project, but now that provision has been removed, and so if the city you know fails to comply with those timelines we just talked about, the project can be deemed uh approved by operation of law without that extra layer and extra time for the city to respond to it.

So then now it becomes more important that the city does not miss those time frames, and just the final implications about what these all mean shorter time uh processing approval timelines for ministerial projects, for residential projects, uh some non-registered projects, and the deemed approved nominee applies without additional notice, so it's very important that the city tracks these timelines very closely to avoid lapsing and avoid being late.

Um, and again, we should not forget that additional deadlines may apply or additional limits, such as the five hearing rule under SB 330.

Um, so it's important to kind of pay attention to how those laws also interact.

Uh, I'll say that Walnut Creek is, you know, very advanced in this regard, you know, has taken a lot of steps to um adopt objective standards to streamline and to kind of um arrange the the level of review required for different types of projects.

So the city is on it's on it's the city's on good grounds to you know kind of expedite things and streamline things and response to to these changes.

Um but so but these are still the consideration in the planning review process.

And so that is my presentation, and if you have any questions, I'm happy to answer them.

Uh let me uh before we get into questions from the commissioners.

I'd like to open up the public uh communications so that other people can make comments uh before we get into the discussion among the commissioners.

Um so if there are members of the public who would like to comment, normally I would ask you to fill out a speaker slip, but I don't believe we have any here.

So uh if you would think of the point, do you want to go?

Hi.

So if if you yeah, we're is it the podium uh free?

I don't think that's it.

That's not her.

Okay.

Alright.

There um and yeah, if you could just give your name so we know who you are.

Okay.

All right, hello.

My name is Suzanne Howard.

I'm a resident here in Walnut Creek.

Um thank you very much for this presentation.

Um I would love to learn more about what the city of Walnut Creek consider um more attention to reducing noise pollution given that there's a 12-lane freeway that runs through your entire city.

Um so for example, so much of the residential dwelling units on Jones Road alone are completely subject to the freeway.

And if it's not an issue of the white noise of the road of the cars, it's the frequently infrequent, very disruptive aftermarket um something like that.

Perfect, perfect.

Um, it's really disruptive from like a sleep quality perspective, or just like a noise pollution is really serious to me.

It's it's extremely disruptive, and I would hope that um the city of Walnut Creek would take that into consideration and consider um a sound beer after the fact.

I know so much of Walnut Creek is already built up.

Um I went to the CCTA meeting, they're saying go talk to Caltrans.

Caltrans is saying go talk to CCTA.

So who knows what the source of truth is, but I would appreciate it if the city of Walnut Creek would um support this and and and just kind of keep this on your radar.

Thank you.

Okay, very good.

Bring it back to the commission then and uh if people have additional questions, there will be a quiz later.

So if you missed anything, um, or comments on the presentation.

Commissioner Strongman.

Uh thank you for the presentation.

And would you explain the tribes?

Which tribes are we contacting and why?

I was this is news to me.

Well, I can give the first answer and then maybe Chip can elaborate.

So there's uh requirements about tribes that are culturally um traditionally affiliated with the region.

So there is a list I believe the city maintains, um, and you know, Chip can talk about that.

So I was expecting this to come up, but um, um what we the previous practice was to in response to AB 52, which was from what 2015-ish, which would require us to do more than just send a project to the Sonoma State um NAHCA, um Native American Heritage Commission, yeah, um, which is what we used to do, and then they would distribute the plans, and if there was any interest, we would get an email or a phone call or a letter.

Um AB 52 required us to go actually to the tribes and send these projects out.

And if they requested a consultation, then we would then we would have to negotiate that consultation.

There are 15 tribes that that the city of Walnut that has, I don't know, jurisdictions probably is not the right word, but are have um can requ can request consultation within the city of Walnut Creek.

Um and we have a list uh when we we keep in touch, we uh there's certain requirements on how to and how not to uh conduct business with the tribes.

Um what's confusing in this one is that it it uh the the state the the law says that staff must provide or carry out consultation with the tribes when it and I think the intent was to inquire with the tribes and see if they would like to request a consultation.

Do you see any merit in that because we don't request consultation with tribe they request consultation with the city so that's it it's it's unclear to me in that in that law and how that works.

But in any case we have to reach out to all 15 tribes.

Uh follow-up question how many have actually requested consultation in recent projects um one recent project we had uh consultations of video consultation zoom with uh two tribes and what project was that that would be the Mitchell town homes and another thing I'll just add is that the statue it doesn't say what happens if the city and tribe doesn't agree it just has that if agreement is reached then you have to you know condition the project on those measures um so presumably if they don't agree and the 60 days up you have to move on hit the project and so that's that's another um consideration.

Yeah.

Just a follow up to that when you are having that consultation with the tribes what are the um sort of public reporting requirements about that is it does it need to be an open meeting do the results need to be reported out to the public in some way.

Sort of like the Brown Act are is there is there something that sets requirements around consultation itself is public.

The city of course if it concludes and then there's measures to follow up from that that's a that's of course public because you have to um condition that for the project or you make it a mitigation measure um but it's not I mean from a we we don't I don't think we advertise it or we hold a public hearing on that um it's just you know we didn't right we don't do that but you know that conversation I mean if you know anyone request it's probably a public unless there's some competition information in there um but but generally it's the results that's made public so who do the results go to like where where at what part in the process um does are those results seen so uh claire mentioned appendix G that's the checklist that's generally used to determine or to take a look a precursory look to see if there might be any potentially significant impacts um one of those categories are cultural or is is in regards to cultural issues and some of them are program or or operational and the other ones are construction and the tribes are really interested in construction.

So if there is grading on the project you will automatically check potentially significant.

And if there is um and then you go through the process and you can determine on whether or not based on history and what the tribes know that there may be or there or there or there or there or there isn't potential to find some cultural artifacts um you know in during a grading exercise the um what so that would what they would typically do then is become a mitigation measure which is really become a standard mitigation measure there it's almost a condition of approval if you'd have a project that doesn't have a sequel document or an MND say it's an exemption so typically the answer to your question is it would be a mitigation measure in an MND or an EIR to bring that potentially significant down to not significant.

Would it be helpful if I gave you an example?

Sure.

Um, so in the South Bay, Tammy and nation is very prevalent, and so what they require, instead of just saying if you find something notify, the the applicant or the developer has to pay the tribe every single day to be there during the entirety of the construction.

Or, which is a lot of money, um, or they have to um pay honor to certain elements which have meaning, so then there's a um, you know, maybe um a crest or something that's put in honor of something that comes about, but Chip is right.

The most thing the thing that I've seen is to be to pay to be present during grading all ground disturbing operations.

So you're talking about like the site needs to be paved at that point, and then the payment to the tribe's stock, like that's typically what I've seen.

And I would add that that those items are part of the negotiation, yeah.

Other questions or comments?

Um I had a question about the near miss.

Well, actually, the the first question is um it says rely on density bonus.

So I know we have to do 50%.

So, you know how density, you know how density bonus now has like a double what we could do 50%, we could actually double the entire density because there's that provision.

Probably closer.

Is it closer?

Yeah.

Okay, fair.

I feel like it was making noises.

Um I forget about provision it's all the way at the bottom of um six five, nine one five or whatever, you know, density bonuses, so then could that that's the part in in the um that confused me.

So someone could not meet the the land use density, but then use the bonus units and density units to get to the 50% of the applicable minimum density, um well, if you had density bonus, you would you would you would meet the density requirements?

You could use the waivers from the density bonus to override and this is relating to the info exemption.

So, yeah, because I think that's that's the one bullet point that confused me because you if you have to be consistent um with so say that because we have a lot of single family density in Walnut Creek that is not that is not 15 dwelling units per acre, right?

It's less than that.

Three to five dwelling units per acre.

But if someone decides to do a double density bonus where they double the entire density and then they get it up to 15, do the bonus units count towards the density to make it consistent with the land use to then use AB 130.

Um yeah, I could see that, but um density bonus require five units plus that.

So you know, so if you were just one unit, you probably wouldn't be able to do that.

Um, but if a smaller project you're small enough that you you, you know, practically you could propose that many density, the base units plus density the bonus.

Right.

You could yeah, theoretically, you could oh use it to meet the standards that you don't meet um because of the waivers, and then you could um you could probably yeah, you could probably meet the density requirements for the 50%.

And I don't I don't think 130 actually mentions base density, it just says it just says so.

So if it doesn't say base density, it doesn't say base density.

That's interesting.

So the base, it could be so it would be the as we see base and bonus together.

So it's applicable, so whichever one you're using, I don't think.

And then for the near miss, um, or the single miss, except for one qualifying um item.

So then as a planning commission, would then we see so then it would be the typical because we a lot of stuff that come to uh comes to us is uh um a cat thirty two exemption, right?

Ton of the stuff that comes to us, except for Mitchell, obviously.

Um but then so then for those properties, if there was one, would you just do then would then what would come to us is an exemption document plus just a limited environmental for that one miss?

Yeah, I would imagine so.

So that exemption requires also a bunch of things, right?

So if they five acres are live.

Right.

Um, the project would provide um a checklist to say we meet all these requirements.

So if they, you know, invoke the single condition, let's say they don't meet um general plan consistency.

Um, we would be able to say, you know, the statue provides a single miss or single condition streamline review, and then we would probably have a uh uh analysis that goes into what impacts the general plan inconsistency would create.

And so together that gives you the ability to say, you know, you the project has provided its sequel analysis and has met the SQL obligation.

So that therefore the city doesn't need to do anything more.

Other questions, comments?

If not, um thank you very much for a very detailed presentation.

Um may get uh text or calls later in the week.

When we actually think about it.

Um I think that uh close that item and the next item is uh Commission member and staff reports for announcements, any from either commission.

If not, um I'll move on to the next item, which is adjournment.

And uh therefore we're adjourned.

So thank you all very much.

Thank you.