In Second Effort To Use Measure M Loophole & Get Council To Up Density, Borstein Fails

For the second time in slightly over two years, the Chino City Council this week by a narrow margin shut the door on Borstein Enterprises in its effort to wring from the city density concessions in its proposal to develop what had formerly been agricultural property just outside the city limits in the remaining swath of unincorporated land between Chino and Montclair within Chino’s sphere of influence.
Borstein had sought previously and once more requested permission to residentially develop the property, which at one time was  a poultry and rabbit farm, at a higher density than is permitted in Chino’s general plan.
More than 25 months ago, Borstein had asked the Chino Planning Commission to consider its proposal to build 43 single-story, ranch-style homes and a neighborhood park on 13.46 acres lying within a pocket of unincorporated San Bernardino County adjacent to the City of Chino at the corner of Francis and Yorba avenues. The property is within Chino’s sphere of influence, and the county had deferred land use authority to the city with regard to it. Under Borstein’s application originally filed in 2016 and considered by the city in 2017, the 13.46-acre parcel was to be annexed into the city, which was necessary so the homes to be developed could connect with the city’s sewer system. Under the city’s general plan, the land is zoned R2, meaning that a maximum of two units per acre were allowed to be built there. Borstein’s request was that the city consent to a zone change that would allow 3.6 units per acre, what under the city’s zoning code is referred to as R4.5, which allows as many as 4.5 units per acre to be constructed on a single acre. Known as Chino Francis Estates, the proposed project is surrounded north, east, south and west by property developed to no more than two units per acre.
On December 4, 2017, the planning commission on a 3-to-2 vote recommended against allowing the project as proposed to proceed. Borstein then appealed that decision to the Chino City Council, which has the authority to second-guess the planning commission.
Under most conditions, the city council does not have the authority to deviate from land use restrictions contained in the general plan. A generation ago, Chino voters passed Measure M, which mandates that if a developer wants to proceed with a project of greater density than provided for in the city’s general plan or zoning codes, the city council does not have, on its own, the authority to accommodate the developer’s request. Rather, under Measure M a majority of voters throughout the city must give their consent for such a project to proceed.
In the case of the property Borstein has sought to develop, however, there is a loophole.
Measure M applies only to property that falls within what was the incorporated borders of the city when the measure was passed in 1988. Borstein’s executives were conscious that the city council as it existed in 2017 had a decidedly pro-development bent. Its five members in December 2017 were Mayor Eunice Ulloa, Tom Haughey, Earl Elrod, Gary George and Dr. Dr. Paul Rodriguez. Of those five, only Ulloa was a stickler for adhering to the guidelines – including those for density – within the city’s general plan. Thus, Borstein’s corporate officers believed they could induce the city council to reverse the planning commission’s decision.
When the matter came before the city council on December 19, 2017, the flow of events appeared to be moving in Borstein’s favor.
Nicholas Liguori, Chino’s director of community development, in a staff report relayed to the city council through city manager Matthew Ballantyne, recommended that the council “overrule the recommendation of the planning commission” and adopt a resolution stating that any environmental impacts from the project were either insubstantial or could and would be mitigated. Liguori further recommended that the council grant the appeal by Borstein Enterprises, doing business as Chino Francis Estates, LLC, such that the San Bernardino County Local Agency Formation Commission be requested to initiate the annexation process, that the tentative tract map be approved along with the site plan and the special conditional permit needed for the project to proceed, and that staff be directed “to negotiate with the County of San Bernardino to increase the amount of property tax retained by the city in non-island annexations.”
The size of 42 of the lots in the proposed project ranged from 8,090 square feet to 10,679 square feet, with a single lot at 16,227 square feet. The size of the homes, which were variously designed in hacienda ranch, California ranch and Spanish colonial styles, ranged from 2,820 square feet in a three-bedroom/2.5 bathroom model to 3,590 square feet in a 5 bedroom/4.5 bathroom model.
Elrod, however, was absent from the December 19, 2017 meeting. Because of previous city resident unrest with regard to the city council’s disregard for the provisions of Measure M as applied to land in the city’s sphere of influence outside the city limits that would subsequently be annexed into the city and involve property built to a greater density than exists in neighboring properties already in the city, George proved unwilling to support the increase in density Borstein was requesting, a significant departure from the pro-development attitude he was previously recognized as having evinced.
Rodriguez made a motion to approve the staff recommendation to overturn the planning commission’s denial of the project.
Haughey, curiously, did not second Rodriguez’s motion, anticipating that George would do so. When George did not, Rodriguez’s motion died for lack of a second.
Thereafter, Ulloa made an alternative motion to uphold the planning commission’s denial of the application. At that point, George seconded the motion, tacitly making a break with the pro-development wing of the city council. The vote on that motion ended in a 2-2 deadlock, with Ulloa and George voting in favor of it and Rodriguez and Haughey opposed.
For Borstein, Elrod’s absence that evening  thus proved crucial. With the council vote having ended in a tie and no majority vote to overturn it, the planning commission decision to deny the project remained operative.
Having waited a decent interim, Borstein revived its proposal. This time around, there were some relatively minor changes, one being that the property to be developed was shown as 13.35 acres rather than the 13.46 specified in 2017, and the number of homes to be built was reduced from 43 single story homes to 39 single story homes, together with an increase in the average lot size, an increase in the side yard setbacks on some of the lots to support recreational vehicle parking if desired by future homebuyers.
As it turned out, in thismost recent go, the planning commission, which on November 18, 2019 considered the revamped proposal, reversed itself from its 2017 decision, voting 4-to-3 in favor of the project.
The matter of the revamped Chino Francis Estates project thus came before the city council this week for approval as a legislative action relating to its prezoning and annexation, the approval of a general plan amendment required to allow the greater degree of density than is foreseen in the city’s general plan and an associated mitigated negative declaration. A mitigated negative declaration is the decision-making body’s official assertion that any negative impact on the local environs by the development will be mitigated by measures required pursuant to the project’s approval.
Since 2017, Elrod and George have left the council. They have been supplanted by Mark Hargrove and Marc Lucio.
Borstein indicated the 39 single-family, single-story homes featuring variously four or five bedrooms would be constructed on lots ranging from 8,130-square-feet to 16,920-square-feet, with an average square footage of 10,000-square-feet.
The project as proposed calls for a density of 3.2 homes per acre, but for the city to approve the project it had to up the existing zoning, which allows two units per acre, to the next level on the city’s density scale, which is 4.5 units per acre.
Borstein said the asking price on the models would range between $805,000 to $960,000. Borstein said the development would also entail a 14,953-square-foot private park recessed into one of the corners of the development.
More than three dozen residents living near the project, living both within the city limits and just outside them, held forth with regard to their perspective on the proposal. Some supported it. Others did not.
Supporters said the upscale homes would improve the area, and modernize it with sidewalks and curbs. They said just over three units to the acre would be preferable to the potential that higher density homes or apartment complexes could be built there to meet state mandates for affordable housing to be built in Chino.
Opponents of the project, including members of Protect Chino, a grassroots group advocating for livable neighborhoods, said the project would destroy the area’s quaint rural nature, increase traffic on surrounding streets, worsen flooding and encourage other developers to seek further density concessions from the city.
Councilman Hargrove expressed concern and discomfort over altering the standards of the general plan for the project. He indicated he did not believe there was yet indication of a consensus within the community to allow the change in density and change to the general plan that Borstein was requesting without hearing more input from the community.  Hargrove also expressed the misgiving that if the city were to grant the general plan amendment to approve the project, that would imply the zone uprating to 4.5 units to the acres. Thereafter, he indicated, Borstein might flip the property to another developer with the entitlement to build yet intact, and that developer might then insist on increasing the density to the maximum, that is, 4.5 units per acre. City staff said a new development proposal from a different developer would likely require a new approval process.
Councilman Haughey said the project stood on its own merit and Councilman Rodriguez, while referencing state mandates that cities approve “affordable” housing, suggested the city might get in Dutch with the state if it didn’t approve this housing project, ignoring the price tags on the homes.
Councilman Lucio questioned whether it wouldn’t make more sense and be more cost effective for the city to annex the entire area north of the city in one fell swoop to be able to deal with infrastructure issues in a coordinated fashion rather than in making piecemeal annexations.
In a 3-to-2 decision, with Ulloa, Hargrove and Lucio prevailing and Haughey and Rodriguez dissenting, the council voted to overturn the Chino Planning Commission’s recommendation for approval and reject city staff’s recommendation to let the Chino Francis Estates development proceed. Ulloa, Hargrove and Lucio enunciated their collective belief the city should stand by the standards in the Chino General Plan, and keep the two homes per acre designation for the property at Yorba and Francis avenues in place.
-Mark Gutglueck

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