Residents lose appeal asking the city to deny a nearly 300-unit apartment complex in an area of mostly single-story, single-family homes near K Avenue and Ben Maddox Way
VISALIA – Half of the crowd stormed out of the Jan. 23 Visalia City Council meeting protesting its decision to approve a high-density, low-income housing project in the southeastern part of the city. The mass exodus happened even before the vote as the majority of the council explained why they were reluctantly in support of the project.
“We don’t want to hear anything more,” one person yelled on their way out of the Visalia Convention Center, where the meeting was moved to accommodate the large number of people opposing the apartment complex in their neighborhood.
The public hearing was an appeal of the Visalia Planning Commission’s unanimous approval of the complex on Jan. 23. Now with the council’s approval, Maracor Development will move ahead with plans to build a 292-unit residential development on 7.63 acres at the southwest corner of K Avenue and Ben Maddox Way. The project will be the tallest structures in the area with seven three-story buildings and three two-story buildings surrounded by mostly single-story, single-family homes. The buildings will collectively contain 136 three-bedroom apartments, 80 two-bedroom apartments and 76 one-bedroom apartments with 578 parking stalls. The project will also include a community center, tot lot, swimming pool and dog park.
All of the units are considered affordable housing for low-income residents and will remain so for at least 55 years under the conditional use permit approved by the council. With 27 units per acre, the project qualifies under the State Density Bonus Law, which requires the council to approve the project based on affordability alone and with very little say in what the project looks like.
“The density bonus law precludes a city from denying a density bonus request as long as the project provides the necessary amount of affordable housing as proposed,” the staff report stated.
Rick Westbay, who lives on East Beech Street, called the project a slum and said it was a bad idea for this area of town made up primarily of single family homes. He asked for a show of hands of who was there to support the project and only a handful among the roughly 90 people in the audience raised their hands.
“We don’t want a thousand poor people moving into our area and creating the noise and the crime,” Westbay said.
Councilmember Emmanual Soto took exception to the comments, saying he lived a block away from low-income apartments and was privileged to call them neighbors.
“These are working class individuals and some of the greatest people I know,” he said. “They are my neighbors and I will be supporting this project.”
Councilmember Liz Wynn said she understood concerns about low-income housing because a home is the largest investment most residents ever make. There are also many people who cannot afford to buy a home but they deserve to live in a nice neighborhood as well. Wynn shared how she used to be a landlord for government subsidized housing, commonly referred to as Section 8 housing, for a woman and three children who needed somewhere to start before she could move into traditional, privately funded housing.
“I don’t want to stigmatize low-income housing, because I think that we need people who are going to do the minimum wage jobs but how do we tell them ‘No, you don’t deserve affordable housing’,” Wynn said.
Michael Smith, who filed the appeal on behalf of many of the neighbors, argued the project certainly met the requirements to be exempt from some state environmental regulations unless it posed a significant threat to the environment due to an “unusual circumstance” such as an animal on the endangered species list. Smith presented photos of what he claimed was a Sierra Nevada red fox roaming the proposed site of the apartment complex which was completely omitted from the City’s notice of exemption from the California Environmental Quality Act (CEQA).
“This is a blatant abuse of discretion in the issuance of an environmental exemption,” Smith wrote in his appeal.
Smith said the fox photographed in the area could not be the more common grey fox which is described as having a black tipped tail because it had a white-tipped tail, the reason residents have named it Q-tip, was red in overall color and had black-colored legs associated with red foxes.
“They’re calling that a gray fox,” Smith said of the ecologist’s survey for the project. “I’m not sure how it looks gray or how it looks like it has a black tip tail but it looks like a red fox to me.”
H.T. Harvey & Associates, an ecological consultant, completed an assessment of red fox activity in the project area in January 2023. The report said this subspecies of red fox was thought to be extinct in California until 2010 when a small population was discovered at Sonora Pass. In 2022, the range of the fox was extended to include the eastern boundaries of Sequoia and Kings Canyon National Park, but still 100 miles north and 11,000 feet higher than the project site.
While the consultants did note the foxes are “highly adaptable and thus capable of residing in valley upland and riparian habitats, farmlands, semi-desert, wetlands, and urban areas,” it concluded that “the red fox observed within the urbanized area of the Maracor Development parcel in Visalia is a non-native red fox.” The report went on to say the fox observed in the area was a non-native species of fox or possibly a grey fox. “Both the nonnative red fox and the gray fox are common species and are not afforded protection under the federal Endangered Species Act or the California Endangered Species Act.”
Another resident, Kelly Clay, said the group of residents had contacted wildlife organizations including the Center for Biological Diversity, Sierra Club, Cascadia Wild and the John Muir Project to ask about the steps needed to determine what species of fox was living in their neighborhood. She claimed all of the groups said DNA evidence would be needed to establish if the fox was in fact an endangered species or some more common species, yet no DNA evidence was presented as part of the ecological consultant’s report. She also cited articles in the LA Times and San Francisco Chronicle describing how the Sierra Nevada red fox “has been sighted outside of normal zones, regions and elevations, the possibility of this endangered species being located here is entirely possible.”
Mayor Brian Poochigian asked if the fox had to be DNA tested in order to prove that it was or wasn’t the subspecies on the endangered list.
“If they do a DNA test on that Fox, and it comes back as an endangered species, who will be liable, city or the developer?,” Poochigian asked the city attorney.
City Attorney Ken Richardson said there was no liability for the city or developer because no DNA evidence had been presented at the public hearing to establish that and the council can only base its decision on the evidence presented that night.
“They have not presented any DNA evidence or other evidence to suggest that this is actually an endangered species,” Richardson said. “So, the liability is no different now than it would be anywhere down the road. The evidence that you have in front of you tonight is for your decision tonight.”
Tower of Isolation
Smith went on to say he and the group of residents he was representing were not against affordable housing. Many of them lived in affordable housing at one time, however, most of those complexes were located within walking distance of grocery stores, bus stops and other services that are not available near the high-density project. He said under California Public Resource Code, a high-density project must have access to a major transit stop, defined as having a transit station for bus or rail service, or the intersection of two or more major bus routes with intervals of 15 minutes or less.
“The tiny green bench on Ben Maddox does not meet the standards,” Smith said.
Paul Gilray said the project might be in line with the state’s affordable housing regulations but is in opposition to the state’s climate action regulations. He questioned why a high-density project would be located in an area without access to public transportation, food, health care and jobs. He said this means the estimated 600 people moving into the project will need their own vehicle, adding 80% more cars to the area.
“The intention with this whole mess was to improve lower income tenants’ lives,” Gilray said. “Instead, the unintended consequence is isolating them from the very things that would eventually improve their lives.”
Residents were also concerned with the impact on nearby Annie R. Mitchell Elementary. The school opened in the 2008-09 school year to about 600 students and the enrollment has now grown to more than 800. Smith cited the city’s General Plan 2014 which predicted the need for 17 new elementary schools by 2030, but only three schools have been built since that time. Two additional schools were planned for the southeast area but none have been built since Annie R. Mitchell nearly 15 years.
“Not only do overcrowded schools directly and negatively impact academic achievement, it can also increase incidence of bullying, a documented public health and safety issue, according to a longitudinal study published in 2009,” Smith said.
Residents also called the council to form a South Visalia Advisory Committee, something the residents said they had asked for when the project was first approved for multi-family housing in 1991, a time when the city had already created a North Visalia Advisory Committee for the area surrounding the Oval Park. Dominique Beal Rivera was at the city council meeting in 2017 when the city denied residents’ appeal to build a multi-family housing project that planned 195 fewer units on the site than the current project. Seven years later, there is still no advisory committee for their side of town, even after several follow ups requesting its formation. She asked the council to improve its collaboration with its taxpayers on the growth of their neighborhoods.
“That allows all stakeholders to work together to meet all citizens’ needs,” Beal Rivera said. “Collaborative leadership and practices in a city help to improve quality of life, build trust and a collective capacity.”
The only entity to comment on behalf of the project was Californians for Homeownership, a nonprofit advocating for more low-income housing in the state. The group argued the Housing Accountability Act requires the city to approve a housing development project unless the project fails to comply with “applicable, objective general plan, zoning, and subdivision standards and criteria, including design review standards, in effect at the time that the application was deemed complete.”
The group clarified the definition of “objective” under the housing law means “involving no personal or subjective judgment by a public official and being uniformly verifiable by reference to an external and uniform benchmark or criterion available and knowable by both the development applicant or proponent and the public official.”
Also known as the “anti-NIMBY law”, the HAA was approved in 1982 to prevent apartment projects from being shot down by not-in-my-back-yard sentiments from local residents and governing bodies. The idea of the law was to prevent municipalities from denying low-income based on its preference for single family homes and to streamline permitting to rapidly respond to housing shortages in the state. In its letter to the city, the group all but threatened to sue the city citing examples of other municipalities sued for their denial of low-income housing projects for up to $10,000 per unit.
The list of five lawsuits in which cities lost in court included one filed by Californians for Homeownership against the City of Huntington Beach in Orange County. The court ruled that Huntington Beach violated the HAA when it rejected a 48-unit condominium project based on vague concerns about health and safety. Following the decision, the city agreed to pay $600,000 in attorneys’ fees to the nonprofit and two other plaintiffs.
“Based on the above legal framework, state law requires the city to approve this project,” the nonprofit wrote. “We urge you to affirm the planning commission’s decision.”
Councilmember Steve Nelsen said approval of the project was out of their hands but he sympathized with the residents’ situation. He said state policies also forced the city to approve a homeless shelter near his house, even though he personally, and many of his neighbors, opposed the project. He said the state’s housing policies have tied the city’s hands to where if the council does not approve the project they would face a lawsuit from entities like Californians for Homeownership and possibly the state.
“I am not going to spend city money to defend this with the state of California because we’ll lose,” Nelsen said. “I’d rather take that same money and bring amenities for your family, for your kids and for your safety.”
Nelsen went on to say that housing density of all types are being built more compact. He gave an example of new single family subdivisions in the northwest part of town where two-story houses are being built on smaller lots and closer to the fence line.
“You can reach through your window and shake hands with your neighbor next door through his window and you can look in the backyard very easily,” Nelsen said. “That’s no different than an apartment complex.”
Vice Mayor Bret Taylor said he understood the council would be sued if it denied the project but said the city could still mitigate concerns of crime by adding a fence to the project. Staff confirmed the project would be the only multi-family complex with more than 100 units the city has approved without a fence in the last 20-30 years.
“I’m a fan of saying good fences make good neighbors,” Taylor said. “Is there anyway we can add a fence to this project?”
“No. It would not be allowable,” Community Development Director Paul Bernal said.
Bernal went on to explain that based on the high-density, and affordability of the units, the applicant does not have to grant the city any concessions and does not have to agree to any conditions which can’t be justified in the findings presented to the council during the public hearing.
“State law is pretty clear that it’s incumbent upon the city to make the findings on why it would need to be required,” Bernal said. “Nor would the city have the ability to enact conditions on [the applicant] that are otherwise not listed in the ordinance.”
Taylor concluded his comments by saying, “honestly, I don’t see how there’s any option to not support this, so I will be supporting this project.”
Taylor made the motion to approve the project and it was seconded by Soto before a 5-0 vote to approve the project. Even before the council members could finish their comments and take a vote, most of the crowd stormed out of the meeting yelling that their concerns had again fallen on deaf ears and that the governor and the state made convenient scapegoats for the city to ruin their neighborhood.
“We don’t appreciate what you are saying,” one woman yelled as the crowd walked out of the meeting.