Attachment 16From: John Shepardson [mailto:shepard sonlaw@me .com]
Sent: Wednesday, July 26, 2017 4:05 PM
To: Ma rico Sayoc; Rob Rennie; Steven Leonard is; Marcia Jensen ; BSpector; Laurel Prevetti; Robert
Schultz; Council; nchase@bayareanewsgroup .com
Subject: North 40 (AB ~222)
Dear Mayor Sayoc and Council:
One, public sentiment is at least 2/3 against the present project.
Two, the key issue is whether there are objective standards to deny the project.
If there are solid objective standards, the people are saying deny it. If there are not
such standards, approve it and move on. I have learned a lesson that allowing ample
discretion in the specific plan limited the Town's ability to deny the project. More importantly,
if we don't get our budget under control, we will be dependent on large projects for funding, and
then the small town character that is Los Gatos will be gone. The longer we ignore this
elephant in the room, the greater our dependency on large development funds. Of course,
politically it is a contentious issue, and perhaps even suicidal for a political to press. And so,
it appears that the snowball will get bigger and in the meantime things like a community center,
senior center, Danville busing, downtown garages, more green bike lanes, a skate park, etc. don't
come to
fruition. The pension obligation remains a staggering $54M. There is a steep opportunity cost to
a 42% police expenditure budget (Cupertino 11 %, Saratoga approx. 27%).
Three, I would like to see "smart" traffic lights on that section of LG Blvd. (and
eventually throughout the town).
Four, if we still have time, I suggest the specific plan, if it has not already happened, be
amended to provide more objective standards in the next phase. I believe the people would
support this action.
Five, looking ahead, perhaps a community center (senior center, youth innovation center), pool,
and skate park can go into the next phase.
Six , I don't know enough to comment on the air quality issue. However, with what I understand
over
200,000 cars per day pass through the 85/17 interchange, I do have concerns.
Seven, the issue of replacing the existing homes should be throughly vetted. See attachments
below.
City o f Fremont 2016
"Previously, state planning and zoning law required continued affordability for 30 years or
longer of all very-low and low income units that qualified a developer for a density bonus.
A1TACHMENT 1 6
Recent adoption of AB 2222 now requires continued affordability for 55 years or longer of all
very-low and low income rental units. For-sale units that are affordable to very-low and low
income households would continue to have a 30-year restriction. AB 2222 also requires
replacement housing when an application for a density bonus is proposed on a site that has
existing affordable rental housing, or previously had such housing, as specified.
"Finally, previous state planning and zoning law required a city or county to grant a density
bonus or other incentives when a developer requested approval to convert apartments to a
condominium project and agreed to provide a specified percentage of units for low or
moderate income households. AB 2222 now prohibits a developer from receiving a density
bonus unless the proposed condominium project would replace the existing affordable units
(or previously existing affordable units, as specified) with at least t.he
same number of affordable units of equivalent size
or type, or both, and the proposed development contains affordable units
according to specified percentages or consists entirely of affordable units." (emphasis
added)
(JS-Required liberal construction of remedial statute requires interpreting the provision as
requiring individual units of similar size, type or both.)
Copy and paste from http://hcidla.lacity.org/AB-2222
HomeAB 2222
A-.9 ~~2.2: .. ' ,L. .:
Pho to by Mike linksvayer is licensed unde r CC BY 2.0
Learn how to apply for an Assembly Bill (AB) 2222 Determination. If you do not find what you are looking for,
please contact us at (213) 808-8843 or HCIDLA.landuse@lacity.org.
On September 27, 2014, Governor Jerry Brown signed AB 2222 to amend sections of California's Density
Bonus Law (Gov. Code §§ 65915). Major changes to the law are applicable to new density bonus
developments resulting in a loss in existing affor dable units or rent-stabilized units. The law aims to replace
units on a one-for-one basis, and ensure rental affordability periods for 55 years.
AB 2 2 22 AFPUCATION INFORMl!.TION
The first step is to complete an aoplication for an Affordable Unit Determination to find if you have potential
affordable units. According to AB 2222, all rental dwelling units that exist at the time of application, or have
been vacated or demolished in the five-year period preceding the application date shall be replaced on
a one-for-one ba sis.
We will need tenant income information, among other items, to determine if affordable units need to be
replaced. It is the responsibility of the owner to obtain all the requ i red documentation verifying the tenant
income and the project's rental and occupancy.
HOW TO SUBMIT YOUR APPUCA TIONS
Please submit your applications to:
E-MAIL: hcidla .landuse@lacity.org
FAX : (213) 808-8854
MAIL: Los Angeles Housing+ Community Investment Dept. (HCIDLA)
ATIN: Land Use Un it
1200 W . 7th Street, 8th Floor
Los Angeles, CA 90017
HAND-DELIVERED : The HCIDLA Public Counter -first floor at the address above
To speak with HCIDLA staff about your loan amendment application, please call (213) 808-8843, or 3-1-1 for
nv.
Copy and paste from http://www.allenmatkins .com/Publ icati ons/Legal-
Alerts/2014/09/02 09 2014-AB-2222 -Density-Bonuses .aspx
AB 2222 Restricts Use of State Density Bonus Law
On September 27, 2014, Governor Brown signed AB 2222, which amended sections of
the State Density Bonus Law (Gov. Code§§ 65915, 65915 .5 ["DBL"]). The main
purpose of the bill is to require developers to replace a!I of a property's pre-existing
affordable units in order to become eligible for the bonuses, incentives, waivers
provided under the DBL. This new requirement makes it essential
for multifamily developers to fully investigate the existence
of affordable units on the acquisition site before analyzing
the benefits that may be derived from use of the
DBL. (emphasis added)
The Density Bonus law
The purp'Jse of the DBL, enacted in 1979, is to encourage cities and counties to offer
density bonuses, incentives, and waivers to housing developments that include certain
percentages of affordable units. As recognized by California courts, the Density Bonus
Law rewards a "developer who agrees to build a certain percentage of low-income
housing with the opportunity to build more residences than would otherwise be
oe:-mitted by the applicable local regulati.ons." (Friends of Lagoon Valley v. City of
Vacaville, 154 Cal. App. 4th 807, 824 (2007).) By incentiviz!ng developers, the DBL
promotes the construction of housing for seniors and low-income families.
Ba£ically-, a city or county must grant a density bonus, concessions and incentives ,
prescribed parking requiremer.ts, as well as waivers of development standards upon a
dev~loper's request when the developer includes a certain percentage of affordable
housing in a housing development project. (A summary of the DBLs history, procedural
and substantive components, and l<ey issues is provided in this ~i1:&cle.)
The concern among supporters of AS 2222 was that the DBL sometimes resulted in the
0verall reduction of affordable units if the prior project contained more affordable units
than what was needed to qualify a new housing project under the DBL
· ~ay Provisions of AB 2222
The most important component of AB 2222 is that it prohibits an applicant from
i"e~diving a density bonus (and related incentives and waivers) unless the proposed
housing development or condominium project would, at a minimum, maintain the
numbH and proportion of affordable housing units within the proposed development,
including affordable dwelling units have been vacated or demolished in the five-year
;::ieriod preceding the application. (See new Gov. Code§§ 65915(c)(3)(A); 65915.5(g).)
AB 2222 c..iso increases the req~ir~cl affordability from 30 years or longer to 55 years or
longer for a!I affordable rental units that qualified an applicant for a density bonus, and
requires replacement rental units to be subject to a recorded affordability restriction for
at least 55 years. If the units that qualified an applicant for a density bonus are
affordable ownership units, as opposed to rental units, they must be subject to an equity
sharing model rat.her than a resale restriction. Under the prior law, only moderate
income affordable ownership units were subject to the equity sharing model. (See new
Gov. Code§ 65915(c)(3)(8).)
This P.ew law does not apply to density bonus applications submitted to, or processed
by, 2! local governmem before January 1, 2015. (See new Gov. Code§
65915(c)(3)(C).)
Pra~tical Considerations
Because AB 2222 affects the ability of certain housing projects to qualify under the DBL,
it is essential that developers seeking to invoke the DBL understand the status of the
site's existing housing units for the prior several years. If a significant number of
affordable units exist (or recently existed) on the site, then the new development must
provide at least as many affordable units in order to qualify for a density bonus, even if
the project would otherwise have qualified under the DBL's thresholds.
Moreover, developers must recognize that the affordability restrictions will now attach to
the property for a longer period of time, which may affect the project's long-term
financial return.
Finally, if a multifamily developer is at the early stages of the entitlement process, the
developer should be aware of the January 1, 2015 trigger for AB 2222 and act quickly if
the provisions of AB 2222 would adversely affect the project's use of the DBL.
Copy and paste from http://www.glendaleca.gov/home/showdocument?id=32955
AB 2222 (2014) allows conversion of
over-density buildings when 33°/o
affordable plus a ll units with low-
income tenants past 5 year
Respectfully, and grateful for your work on behalf of the town,
John
John Shepardson, Esq.
shepardsonlaw@me.com
59 N. Santa Cruz A venue, Suite Q
Los Gatos, CA 95030
T: (408) 395-3701
F: (408) 395-0112
City Hair • 200 N. Spring Street, Room • Los Angeles, CA 90012 ----·
December 17 , 2014
TO:
FROM:
SUBJECT:
All Staff
Other Interested Parties
/}!I.Id ~
Michael LoGrande r IV< /(
Director of City Planning
IMPLEMENTATION OF AB 2222 -DENSITY BONUS
On September 27, 2014, Governor Brown signed AB 2222, which amended sections of the State
Density Bonus Law (Gov. Code§§ 65915). The law's major provision requires that density bonus
projects resulting in a loss in existing affordable, and otherwise locally-regulated (i.e., rent-stabilized)
housing units, replace those units one-for-one. It also extends the affordability poriod from 30 to 55
years and expands the use of equity sharing in for-sale units. Several other clarifications of existing law
are also included, but they were not judged to represent a change to current City policy.
The City has received numerous questions regarding the implementation of AB 2222, particularly with
respect to timing and procedures. As the City is unable to amend the local density bonus ordinance
implementing State law prior to January 1, 2015 (when the law takes effect), this memo will serve as
interim direction for staff and project applicants. Also please refer to the Affordable Housing Procedures
Memo and Flowchart that details current procedures.
Replacement Units
In order to receive a permit for a density bonus project involving a demolition or conversion, a project
will need to demonstrate compliance with the housing replacement provisions of AB 2222 . The Housing
and Community Investment Department (HCIDLA) will be responsible for making determinations
regarding replacement unit requirements. In order to make these determinations, the HCI DLA may
require information about a property and its occupants for up to five years prior to the date of the
request. A determination letter will be given to both the Department of City Planning (DCP) and
applicant concerning the conditions that must be met. The City will require a Land Use Covenant
recognizing the conditions be filed with the County prior to granting a building permit on the project.
According to AB 2222, an applicant shall replace any rental dwelling units that either exist at the time of
application, or have been vacated or demolished in the five-year period preceding the application,
which are or have been:
1. Subject to a recorded covenant, ordinance, or law that restricts rents to levels affordable to
persons and families of lower or very low income;
2. Subject to any other form of rent or price control (including the Rent Stabilization Ordinance); or
3. Occupied by lower or very low income households (i.e ., income levels less than 80% of the area
median income (AMI))
The replacement units must be the equivalent size or type, or both, and be made available at affordable
rent/cost to , and occupied by, households in the same or lower income category as those meeting the
occupancy criteria 1. As such, a low-income rental unit (affordable to someone making between 50 %
and 80% AMI) would be replaced by a un it affordable to someone making between 50 and 80% AMI
(with rents set at 60% of AMI or below for rental units set at 80% AMI). The HCIDLA will also be
responsible for verifying these requirements are met.
Timing
Following January 1, 2015, all submittals will need to adhere to the new AB 2222 requirements. AB
2222 specifies that the housing replacement provisions described above do not apply if an "application
was submitted to, or processed by" the City before January 1, 2015. As discussed below, the City will
accept applications under the current (pre-AB 2222) provisions if an initial density bonus application to
either DCP or HCIDLA has been submitted on December 31. 2014 or before. The following describes in
more detail what is considered a submittal for the two major types of density bonus processes.
1. Ministerial ("By-Right") Density Bonus Project:
If the Los Angeles Department of Building and Safety (LADBS) determines a project is by-right
(meaning it meets the zoning code, and does not require any on or off menu incentives) then no
Planning applications are necessary. However, density bonus applicants must complete an
"Application for Building Permit and Certificate of Occupancy" with LADBS . In order t o be
considered an application "submitted to or processed by the City", the LADBS appli cation m us t
be completed in its entirety with any and all requ ired documents attached , and any and all
applicable fees paid in full. Once the aforementioned requi rements have been met, LADBS will
issue a receipt to the applicant. The date of receipt ("Date of Receipt") will constitute the
"submitted and processed" date for the purposes of the replacement housing provisions of AB
2222 . HCIDLA will ensure compliance with the·replacement provisions of AB 2222.
2. Planning Entitlement Density Bonus Project:
Density Bonus projects requiring discretionary review due to the need for planning/zoning
entitlements from DCP are presently asked to complete an Affordable Housing Referr a l Form, in
addition to the Master Land Use Application. The Referral Form serves as a worksheet to
determine the number of required affordable units. It has been updated to include a question on
replacement units. Once a complete density bonus submittal has been accepted by the DCP
public counter, fees have been fully paid and a case number has been assigned , the application
will be considered "submitted". The "submittal" date is also referred to as the "case filed on"
date , which will be verified by staff when writing up the determination letter.
Affordabilitv Covenants
AB 2222 specifies that all affordable and replacement rental units shall be subject to a recorded
affordability restriction for at least 55 years. This provision replaces the prior 30-year restriction for all
projects "approved" on or after January 1, 2015. For Ministerial ("By Right") Density Bonus projects, the
"approved" date is the Date of Receipt, as discussed above. For Planning Entitlement Density Bonus
projects, the date a project will be considered "approved " is the date of Planning's "Director's
Determination" letter for the project.
If a development is for-sale, then the initial costs shall be affordable and, upon resale, new equity
sharing provisions shall apply to all affordable units, according to Paragraph 2 of Gov. Code§§ 65915.
Previously equity sharing had been required only for moderate income units.
All Density Bonus projects are required to prepare and record an Affo rdability Covenant to the
satisfaction of the HCIDLA's Environmental and Land Use Section before a building permit can be
issued. To apply to HCIDLA to prepare a covenant, contact the Environmental and Land Use section at
213-808-8993 or hcidla.landuse@lacity.org
i Th ~ HCIL;I./.\ cr:j F ~.m::in'] Depa r:.;.:.,nt intc:rpre! tiiii:. to ~:.;;:n ;11; CL:r.:11onl:1 u nds iL!,. '1 t".c. Jn .. ·; .~1-,-j 1r,:c r,,.;.. <..a1·.:;. _, ::.:.
ext;emel~· lo·N : .. ~~r:;1.: (30~'J AMI). h ::ry-lr:"J income (:"::'1%). 10·:1 ir.:-:'>r •. ::l ((8n :,'<i hMI fer ;:,i rc r:-::1 :1r: a; t 'l rvw:i th;:,in :::.,-;., , .. 11
·ent k.v :.'.;;)) ::i:I mr·~\i!r.-.s in·'')mE. (12C 0/,)
AGEND1A
Why~ NO\N?
Nuts anci Bolts: How the Program Worl<s
'N. ~n· ~+'c '~-t~o-· ~1~c1 alP~le '? V h~. l c; a"'"\.I ; l ! . l-..1 Cl
Proaram Area u
• \fvhat Does T his Meaa1 f or \lour f\Jeighb o rhood?
• Nc3;<t Ste r.)s a.r1d Le a.r n fVlor e
VNOW?
Con1 !:>lying vv~th
Mandatory State law
Providing l1ousing
for middle-income
households
One o·f many toois to
provide a·ffordabie
;1ous!ng in San Francisco
COMPARING STATE LAW TO AHBP PR0 1GRAM
TT
MENUANDFORlllLABASEDANALYSI~
OEl~S
NO M.!)} rn1 Mm 'k1 AHCRDA BLC J
.....----
13-20% AFHllDABLE
···~~ v ~ .......
STATE LAW-1979 STATE Af~ALVZED PROGRAM LOCI APIALVZED PROGRAM
~
'
/ •"·""..:t"" • r :I i;
t'
1 • •
• ' l; I 4 '
,o A A -··ISTRICT
4,000 eliglble parcels In D1
~~ / /
~ Ill • i
I
I
!
Cl e
C~ST
llALSOASf
l'U&.TON fft
I
i
i
~
Ill
I
I
i
mYfMIT
JUDAH ST
Q,.11.VSf
I -~•a."°
I
I
~ 0
Existing Zoning
390 untts (36 affordable)
StateAHBP
530 units ($30 affordable)
Locaf AHBP
1.015 units {305 affordable)
6%
of estimated units
built by 2035
Citywide total under
localAHBP
PROP OSED STATE AFFORD ABL1E HO USI NG BONUS PROGRAM
Th is program is referenced as the ·state Program'
because it is intended to locally implement the State
Density Bonus Law.
The following incentives will be available:
~ Up to 2 stones atove eAisting height limits
.· 7-35% density bonus granted on a graduated scale·
-· Percent of attordable units
-Income levels by affordable units
l...: f;1a1~et l1nl i.Jr'.1t> LJ l\l;\lrdahb C!:~K to L• t'• Moder~iil·li "!lr'S • A1fMl~blii Unit; 1C \i~,. LLw. Lo.~ 01 Moderii lil 1111.·.mitlS
•1•mu m1
CIC~ ., r·-J r--rr --] ; I J ' . I I _ · L.. 1..-l.L
Q1 ·1 r·--. ,--m _,
I , t i I -J L_J _ I
;~.IT, r-.., r-rr1
L.i:_J ~--J : .. ..1. .....
-·~=1fi!:.'• '\i';3111!g J~ . .K..~
Aft:inbble lJnlbl 1D LIJW
N Mooerate-h;olNS
~:lflquir&d}
.vww.sf-planning .or .g/AHBP
STATE AHBP PARTIClf'Alll •
, .. r"-1\ •"'~ii "·U •:; 1,,.'\~. . I.' ~i'!'t ... !.:J •·''·:-!t
AtlMt>bk! Units 1c Low
or ~:'l00'.'3te·lnct.1T18ii
lffL"QUired )
+ 1-8%
~e 11n1ts t(I
Vtr~· Ur.; ....uv.. or
Wlclerate lllf:l')ll '"~
; Pr()ject r.iust "':elude 3 unls m mni i!.
omsrrv BONUS -HEIGHT INCREASE
----... -----·--·
I r r······~
r --J l~ [ l [[C ~ -· .Ji.~~~,;--· t.
Heicil'l Umtt r, .... ,--,:-·! ·1 1 ·-~
I I ,,. I l !L -
I ~1 ' i.. •. .: • .. --. ~·--· ·-. l. 'I··· ; ' l . , . : .
•· 3 t j ' I ·' "-·-··~" " -: ~--r IJ -.. ; 1··; r·1 r'.T·::·.
' ' .. • • • t •-. "-· .. I .. _, l.-. '-~ .l .•....
I er • ----..... _ _. _______ •
--13-20%
Affordable
on·site units
Pl S11ft~ ann1ng
A D USING u!s 1PRO
• Projects that contain 30 percent a·ffordabl e un its
(18 percent for middle-income residents, 12 percent for low
and moderate) will receive:
• Up to two stories above existing height regulations
• Increase in the total amount of housing units on-site
0 N'.ar~~. Ra·e l.Mit:; 0 Mtcf.::abJe !:of'lits tc Low oi ;1c derate-tl~ 0 Affr..rdable ~ tD ~Incomes
•wmm•
-n CID LW ~-·-·-1-
DIJ ..... -1 []]-
[JO Ll DIJ
-'-=11
' LDCAL lH!IP PARTICIFIJCT •
l][JD [IIJ
OI!CJDDDIJ
OIIDDDDIJ
ll~SITT llO>llJ~ -llEl fiHT l ~REl\S f
-· ---·:..-----------
~ l _ _J
~.l~~-' l I II ___ _, _____ _
12'%
AtfOf(alJ.'8 UM:, to L'JW
ll'' Moderate-kmcw ·~·
(fleru'l!o
~rrn)%-+ ~U~%-
-. /· ·' 0(1•1 ' .J.~ >-\·..;,1 •
.'\ff~ Jflit;;tJ !...:lw ~rdal:le l.ci ts t
or t,bfer'lie-frioo-i::H IW11e-l;1oom "~
\ :lec;uire::I)
:~ere is <t'l 'l~lllr.nn ur.;; lh~';}-.'Jl!l
--30 %
Affordable
on~sJte units
RDABLE HOUSING B,ONUS PROG
Projects with 100 percent affordable units will receive:
• Up to three stories above existing height regulations
D 1cnr,c. Affnrdabts Umts
OENSRY 8-0NUS -H06H1 fNCREASE
DIJ D D 0 LJL J J !:.>Jf.K
I ------1---------
0IJ CJD D CID
ULlDDODIJ
rnJDDO [ill ,
Hi!'11.tUmit
I •I ------~------w ---
11
HATIS'AFFO '?
Ii
Verv--Low ., $36,000 $51,000
Low-income $57r.OOO $82,000
Moderate .. f ncorne $85~000 $122,000
Middle-Income $100,000 $143,000
AVERAUE RENT FOB A
!ONE .. BEDR~~n~ ~~PARTMENT
IN SF: $3 ¥650 *
Very-I ow income $900
Low-income $1,425
Moderate-income $2,125
Middle-income $2 !500
Very-low income $1,000
Low-income $1,600
Moderate-income $2,400
Middle-income $2,800
*as of 11/3/15
0 ION, ----
··· · all AH IBP
1
p,rojects .:
Rent control s.nd affordable 1units r rt Lr st oe
_ ......... \'-~-~:M;-;,
rf~:olaced bv oerr11a r1ently affordab,Je ,BIV1R
U'l1its.
BM R -Rent Control Replaceme
·j,,
2 A
.,--·--------i
.. ..
i
~l >!l,':'9( : •••• .,___.,.. •• :;:::.--~., •• .._.~. -----
RENT CONTROL
I ~
~ ~
I
I
~
j
~
---Ct MARKET RATE
&tBMR
~-1
j --~~
BMR .. RENT CONTROL REPLACEMENT
NEW CONSTRUCTION UNDER CURRENT ZONING
-~--, ! ----~,,. ~~-~I
. --' ~ lll(jJ llllJJ l
Ct&tCt . t'.1C lCt 1
.er -erer 1 -~·er.(c-
; I lrtJ -
i ~~ -_ __J ~--~--·--·-·-'"~ ~~~~1
NEW CONSTRUCTION UNDER U~~AL f~H ~P r-. ------... .__,.,..,,.. .. _, .... ,, ...... 1
! et·t'Jf;t ' ·ereer
Ct&t
•"'"'".loo·,_·-1..-1--... • -.. • ··------..
2
NEW CONSTRUCTION UNDER CURRENT ZONING r -~~ .. ~:-"':·~ .~--....-.··~--~-:-=-·----:--:.::--··.30:-;.:·---="'!'"~ ... ~·
r
I
,.....:!"" ~-"':.·"""'"'.:;···~ ... ·-~:
;·f;rCtt';r
t';r'f;Jt'J
'-""--"-~···''--'""""'--·------------'
f;Jfj«J
t';Jfl·t';J I .·.Cr -1 er.,. \~ :et· . . • ' ·1 ..
.
.
Cr -er·· .. .: ··. -
.
NEW CONSTRUCTION UNDER 1.P~t\1. Aft_BP. -·,---:------
' L lt)·'l:J,C
----~ iCt f;tf;J
~ercc
.Cret·~
f~·-.....~· .. tUO;:...-...--a.. .:..;;.:,,.7-~,._,. .......... .=---...
BMR • RENT CONTROL REPLACEMENT
POSSJBl ( UNDE~, CURRENT ZO f~ING
I ,
, ,
.~
,(> ,.
I " "' l "" ··""
{;t!'."r<'nt <:on:i ~J c;~Jo\o,>{tJp ffl 4i' 'h)""'V~ !n a 65' (':ij:rlJr;9.
, ___ MAXIMUM ALLOWED HEIGHT
UNDER THE AiiBP-WITH
:n~) ",rP'Rl'!· 8' F Yn'·~t:
_ .. .., CURRENT HE1G•~IT UMll
,.-/
.:!
""
POSSIBLE UNDER AHBP
' II
Und· -r '.h•_· AHl3P. ~ hor11•> cuud l:h· ~..;'.-'i in a 35' bJ:~·1in-1:
"'
... ;
... , ....... ,.-. ·"'' l ~ .,_ 11 • \-1 •. 'I • I ~,_!· i ~ .-· ... ' "\t ·t ... ;: {
\ .• '· . '>·,· ' .• I
~ , <:r ·~"" .···r, ,· .• ~ ,, . .,,~ •. ~ :-r ·-·("''''IN. If"
(<... 1 ; 1 \r I ; ,:.-.. ~; . ·: , ~t-~ r· 1\1 ; / J f \1 t • ... : · ·i. _... ·~ ~ I ; .. • -> -.. _ w c !-; "-! ·• \ wl
...... ... --~"' ... ,..,
!l"is.
-: ••• : •• .Ji "" .... '·, .,.~,~~--~
"·~·· .. ,,, ... ·~ ........... .., ..... ~ .
• ........._~-I ~
up t0 fl r.omes in ;; 40' b11i'.·iing '\re ::.ll0wect u: :-1er current zonir\i.
---
!"'1!9U CURRENT HEIGHT Llh~IT
nn('t('~rd c '·~·J ·t '\r· ~-·, .~ ~ .ii""l n
-· • """~ j n :' l. . "' ~ ~ ._ .. ···, , ,,. ~., i .. , r"' ! v ""-· u 1 u '1.." ·-\.)I , LJ ·-, • I ', , ___ .
<-.. ·· ....... . .,.
: .. "~ .. ~ ",,
.......
~ ... ....... ~ ..... , ........... _ ... ,
-Under the AHBP. 13 hrmes could be built 1n a 65' building.
POSSIBLE UNDER CURRENT ZONING POSSIBLE UNDER AHl3P
• Uµ f,; 15 I ·'\l-OC.!I int: tiC' tul'!Ji, ll1 r:r<l ~ ... ~l\·:;.d Uf-.1• :r c; 1rrv~t ;:ni .1nJ. UriOOr (h,, AH9P. 4G 11Clme~. coo•n !"d .t.tit in " if/ hullc .) 1.
---IVIAXIMUM ALLOWED HEIGHT
UNDER THE Al-IBP_;WITH
na., ,, ~r:non11.1ll r: unt.~F
_,_ •. CURRENT HEIGNT LIMIT
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AH ECT AEVI PR 10CESS
Process does not change for l~HBP projects
• San1e s tandard s as any otl1er project
(.;on1n1unity review opportunities:
• Project development phase -Pre-Application Meeting
,. Planning Department reviev"· -l\ieighborhood notifications
,. Planning Coir1m!ssion hearing -PubHc comments
E T
• January 281h -Hearing at the Planning Co111rnission
• Proposed ,l\doption of General Plan Amendments
• Consideration of Mayor and BOS sponsored Ordinance
1·so -Land Use Cornmittee l-leari11as -
1-BlJ -Fu U Boarcl of Super,iisor 1-i eaJint:s . -
• TBD -~Aa~1or's sig11ature
lmple n1 entaU on -Spring 20.i 6 (projected)
LEARN MORE
Website--· http://www.sf-planning.org/AHBP
• FAQs
• Video
• Project updates via email list serve
• Interactive webinar
• Draft legislation and guidelines
Cl Analysis, reports and studies
~ Videos, materials and follow up from previous
presentations and meetings
0 Existing plans and programs
Upco rning Meetings:
° Community meetings
v1t·:1.:t1no
• Planning Commission meetings
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AFFORDABLE HOUSING BONUS P,R:OGRAM -POLICY GOALS
~
Ill Ill
Ill II HI
11 HI
INCENTIV1IZE GREATER LEVELS
OF ONSITE AFFORDABLE UNITS
•
" STABLISH A 'MIDDLE
INCOME' r 1ROGRAM
~
1111 I::: Ill Ill
Ill Ill
IMP IHJ\1 £ F~ASIBILITY OF .-.----.... -...... _ .. ·.:·
UNDERUTILIZED SITES
FACILITATE ENTITLEMENT OF --
100% AFFORDABLE PROJECTS
PROJECTED MAXIMUM TOTAL NEW UNITS SOFT SITES IN PROGRAM AREA , 20 YEARS
Affordable Units,.. .f1.U i-:ousing Units
'900 7,400 r-----------
CURRENT
I
'
I 1.500 10,000
STATE Net New
I 62C I +2,700
i 2,000 ~ 3,000 = 5,000 169000
LOCAL
--~ ...... ~~ .. --. i -1
0 2000 4000 &ODO 8000 10000 12000 14000 18000
Aftordablc U11ics -p0rrP.a,1~nt!y (.i'fforcable, dt1tid rest1 ictcd i 10• •c;it 1 J ur.i;s bPilc by 1r:,1rh:•..:i (::\tu dc;v~!Q~·:r~.
,, ,'s~u1'!!es all p;·c'.,3c!·s !'.lro'!i::k. i1rh ~sic:nry uni::: i:-:i~itd. D<P.s ;yy,· in~lllL~~ 100·;:, a.fo~·c!.o.l.:.i~E! hou~in~ proj~;'."ts.
*· !11cluduz $Ome midc'.le ir11.:c.·mi:: u;1it~ f;:lr i20~~ or ·;ttc;:,; AM!.
Net New
+4,0111 ... ,., I +8,600
~I
<1%
OUter Richmond
Prealdlo
GoJden Gate Park
lnnerSuMet
<1%
<1%
~
P.am~ Helghta
c1%
C891ta/
Upper· ....... <1%.
3" OUMrBtM1911 ....., . .,.. . NCi• valley
Diamond <1%
tfelght•
<1% Glen
<1l-"'
<1%
South of Market
Minion
<~"
3"
Potrero Hiii
<1%
,,..... .... '1119¥
"' ou..r Richmond
2% .......
Golden Gata Park
"' OUWIUIUllt
Pwbiff 5%
Inner Sunset
<1%
<1%
caatro/
Upper Mark•t
<1%
'IWln Peaks Noe Valley
<1%
West of
lWln Peaks
<1%
Diamond
Height.
<1% Glen
Park
<1%
OuWMIMion
RuMlln
ttm
Chlr.-wn
NobHUI t% .
?K
<1%
South at Market
Mlulon
<1%
3"
4%
Lllk••hor.
3% &celalor 2"
Ocean View
<1%
<1%
Crocker Amazon
1%
V1""8clon V.lley
New AHBP units by neighborhood·
r::.Less than 1%
c ·:1.5%
ei!!S-•5%
XiSTI
I
RENT CONTROL ...._ ...
~ MARKETRATE
CtBMR
CHANGE IN TENANCY COMI, ELLIS ACT, ETCJ
if
-... _ ...
CtCr
._ ______ , __ ··"-'~------...
NEW CONSTRUCTION
~........._.~~-~~~~~~ ..
er ·«t~
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CLESS THAN 10 UNITSJ
~--~' -. ..... '·. · .. 1116\._ .6'\_. lll(lJ r llllJJ llllJJ -
OR ,Cr ·CrCr
CrCr~
CrCr
Cl 0 UNITS OR MOREJ
OCAL AHBP DRAFT Z'ONI DIFICATIDNS-UP TO 3
Rear Yard No iess than 20% of the lot depth, or 15 feet whichever is
greater
Exposur(:, May be satisfied through qualifying windows facing an
unobstructed open area that is at least 25 feet in every
horizontal and such open area is not required to expand on
subsequent floors
Off-Street Loadin~t None Required
Pad ~ .. iQ _ Up to a 75% reduction in residential and commercial
requirements
,Open SpacE 5% reduction for common open space
Open Space An additional 5% reduction in common open space
100 °/o AFFO BL PD T ZONING M,ODIFl1 CATIO ,NS
Rear Yar No iess than 20% o·f the !ot depth, or 15 feet whichever is
greater
Exposure May be satisfied through quali'fying \JVindows facing an
unobstructed open area tha.t is at least 15 feet in every
horizontal and such open a r ea is not requiied to expand on
subsequent floors
Off-Street Loading. None Required
Parking: Up to a 100% resident;a~ and commercial requirements
Open Space: Up to 10% reduction for common open space
CENTIVES AND CONCESS !IONS
Rear 'lard i\lo iess than 20% of the lot depth, or 15 feet whichever is
greater
Exposun:=::: May be satisfied through qua~ifying windows facing an
unobstructed open area that is at least 25 feet in every
horizontal and such open area is not required to expand on
subsequent floors
Off-Street Loading None Required
J\ , king: Up to a 50% reduction in residential and commercial
requirements
Open Space 5% reduction for common open space
Open Space An additional 5% reduction in common open space
ENT1ITLEiMENT OF 30°10 -·-- -- ---. -OR 1MDR---
~n;· i·--~'H"l~r. 1• ,.,... II' r t·."";r'~rb ll. r r E rl"''~U\' r·r"{' IE'f'o'f".l'\ I''"~ r·rr 1 , .. ~,· ··~tE' I' ··r-. WITI~ ~·.u·R 'Rl"'"l,I~ i'l"' ·~C·TI~'. r I.., tj'j ~-, ) Lr 'I'' '~ .. , .. ~ 1'-'• J ~,.J~ • [~•ta .... 1,Jt..•· ·' ~ "( 1..: ,,.., , ! "i.j'"{" , tll · ~ , ·t•'J. ~r..lr 1
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Er~TITLEMENT 328
PLANNING COMfvilSSION
H ~, Ri"~ ~.A .1\J'-'
Modeled after LPA in Eastern
i\leighborhoods
4. Commission Hearing-Public
Input and Certainty for
Deve!oper
Focused on Design Review
and Consistency with the
Affoidabl e t-icusing Design
Guidelines
Findings must be completed if
the pioject requires a
Conditional Use
• Appeal to the Board of
Appeals
MOHCD Affordable Rental Up to60% AMI
BMR lnclusionary Rental Up to55% AMI
BMR lnclusionary Ownership Up to90% AMI
Down Payment Assistance Loan Program (DALP) Up to120% AMI
Teache,r Next Do9r DQ.wn Payment Assistan~e (TND) _Up to~QO~ -~Ml
E
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0
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•
HOW WE DEVELOPED THE PROGRAM
PROGR .AM DEVELO NT 1[2 VEAR.SJ
AHBPTEAM
{San Francisco Planning and Mayor's Office of
Housing and Community Develoment)
l
RESEARCH AND ANALYSIS
-Density Bonus Stud_y ~ ( PROPOSED
-Financial Analysis PROGRAM
(David Baker Architects
and Seifel Consulting)
KEY STAKEHOLDERS
.__ AND COMMUNITY
GROUPS
------------·-· ~ .. -· _.,
DES Pll UT
PROCESS FOR AFFORDAB LE BONUS PROJECTS iS CONSISTENT WITH CURRENT PRAGTIGE
PRE LIMIN ARY
PROJECT
ASSESSMEN T
PRE APPLICA noN
MEETING
-·
· NEIGHBORHOOD
r~OTIFICA T!ON
PLANNING DEPARTMENT
REVIEW
GEO.A P LAM N~N G CODE
DESIG N RE ViEVJ
ENTITLEMENT:
MAY INCLUDE
PLANNING
COMMISSION HEARING
XISTlNG ZONING
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EIGHT LIMITS
Height Umlts
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·Fremont City Council
3300 Capitol Avenue
Fremont, CA 94538
SCHEDULED
STAFF REPORT {ID# 2666)
Meeting: 04/19/16 07 :00 PM
Div/Dept: Planning
Category: Code Adoptions & Amendments
Sponso rs :
DOC ID : 2666
DENSITY BONUS ORDINANCE UPDATE-CITYWIDE -PLN2016-00276-Public
Hearing (Published Notice) to Consider the Planning Commission's
Recommendation to Approve an Update to the City's Density Bonus Ordinance
for Compliance with Recent Revisions in State Law, and to Consider an
Exemption to the Requirements of the California Environmental Quality Act
(CEQA) Pursuant to CEQA Guidelines Section 15061 (b)(3) in that the Proposed
Update is not an Activity that Would Have the Potential to Cause a Significant
Effect on the Environment.
Contact Persons:
Name:
Title:
Div/Dept:
Phone :
E-Mail:
Kristie Wheeler
Planning Manager
Planning
510-494-4454
kwheeler@fremont.gov
Jeff Schwob
Director
Community Development
510-494-4527
jschwob@fremont.gov
Executive Summary: A Zoning Text Amendment is proposed to update Fremont Municipal
Code (FMC} Chapter 18.165 {Density Bonus and Affordable Housing Incentives) to provide
compliance with recent revisions in state planning and zoning law. The Planning
Commission held a public hearing on March 24, 2016, to consider the proposed Zoning Text
Amendment and voted 6-0-1 (one Commissioner absent) to recommend approval to the
City Council as shown In Exhibit "A."
BACKGROUND: Consistent with state planning and zoning law, FMC Chapter 18.165
provides incentives for the production of housing for very-low income, low income and
senior households and for the production of housing for moderate Income households
residing in condominium and planned development projects. In providing such incentives, It
is the intent of the City to facilitate the development of affordable housing and implement
the goals, objectives and poll des of the Genercif Plan Housing Element.
Under existing state law, a city or county must grant a density bonus and other incentives
or concessions when a developer proposes lower income housing units or the donation of
land within a project and agrees to construct a specified percentage of units for very-low,
low or moderate income households, among other things. In addition, existing state law
prohibits a city or county from requiring parking In excess of specified ratios when a housing
development meets these criteria. This prohibition applies only at the request of the
developer and specifies that the developer may request additional parking incentives or
concessions.
In addition to the above provisions, the recent adoption of Assembly Bill (AB} 744 prohibits
a city or county from requiring a parking ratio, inclusive of handicapped and guest parking,
in excess of 0.5 spaces per bedroom when requested by a developer and a proposed
housing development (rental and for-sale) includes the maximum percentage of very-low
and low income units; is located within 1h. mile of a major transit stop ; and there is
unobstructed access to the transit stop from the development. AB 744 also prohibits a city
or county from requiring a parking ratio, inclusive of handicapped and guest parking, in
Updated: 4/14/2016 8:22 AM by Merry Monlux Page 1
Staff Report (ID # 2666) Meeti ng of April 19, 2016
excess of specified amounts per unit when all the units in a rental housing development are
proposed at an affordable housing cost to lower income households; the housing
development is within 112 mile of a major transit stop; and there is unobstructed access to
the transit stop from the development. The prohibition on requiring specified parking ratios
also applies under AB 744 to for-rent housing developments for individuals that are 62
years of age or older or a special needs housing development that have either paratransit
service or unobstructed access, within Y2 mile, to fixed bus route serv i ce that operates at
least eight times per day.
Previously, state planning and zoning law required continued affordability for 30 years or
longer of all very-low and low income units that qualified a developer fo r a density bonus.
Recent adoption of AB 2222 now requires continued affordability for 55 years or longer of all
very-low and low income rental un its. For-sale units that are affordable to v ery-low and low
income households would continue to have a 30-year restriction. AB 2222 also requires
replacement housing when an appllcatlon for a density bonus is proposed on a site that has
ex isting affordable rental housing, or previously had such housing, as specified .
Finally, previous state planning and zon ing law required a city or county to grant a densi ty
bonus or other incentives when a developer requested approval to convert apartments to a
condominium project and agreed to provide a specified percentage of units for low or
moderate Income households. AB 2222 now prohibits a developer from receiving a density
bonus unless the proposed condominium project would replace the existing affordable units
(or previously existing affordable units, as specified) with at least the same number of
affordable units of equivalent size or type, or both , and the proposed development contains
affordable units according to specified percentages or consi sts enti rely of affordable uni t s.
Planning Commission Hearing
On March 24, 2016, the Planning Commission held a public hearing to consider the proposed
Zoning Text Amendment and voted 6-0-1 (one Commissi oner absent) to recommend
approval to the City Council. Included in thei r recommendation was a request for
darification regarding the definition of a major transit stop. As proposed, t he draft
definition stat es, in part, "Major transit stop means an existing site, or a site included in the
regional transportation plan, that contains a rail transit station, a ferry terminal served by
e ither a bus or rail transit service, or the intersection of two or more major bus routes with
a frequency of service i nterval of 15 minutes or less during the morning and afternoon peak
commute periods." With regard to the bus routes ' frequency of service, the Commission
asked if each intersecting bus route would be required to have a frequency of service
Interval of 15 minutes or less. Staff reviewed state law and confirmed that the interval
of 15 minutes or less would apply to each route and has added clarifying language to
the definition.
DISCUSSION/ ANALYSIS:
Project Description
The proposed Zoning Text Amendment would update the following sections of FMC Chapte r
18.165 in compliance with existi ng pl anning and zoning law:
1. Section 18.165.020 (Definitions) would add definitions for the following:
Updated: 4/14/2016 8 :22 AM by Merry Monlux Page 2
Staff Report (ID # 2666) Meeting of April 19, 2016
• "Major transit stop."
• "Special needs housing"
• "Specific adverse impact"
• "Unobstructed access"
2. Sections 18.165.030 (Calculation of density bonus and number of incentives and
concessions), 18.165.040 (Land donation), 18.165.050 (Child care facilities) and
18.165.060 (Condominium conversions) would address new requirements to provide
replacement housing when an application for a density bonus is proposed on a site
that has existing affordable rental housing.
3. Section 18.165.070 (Affordability and development standards) would specify that
affordable rental units must be restricted for a minimum period of 55 years.
4 . Section 18.165.075 (Modified parking standards) would provide additional reductions
to required parking ratios for housing developments that are eligible for a density
bonus as shown in the table below:
Mo~imum ·number of
Type of development required off-street
parkings.
Rental or ownership housing with:
1. At least 11% very low Income or 20% low
income units; and
2. Within one-half mile of a major transit stop; 0.5 per bedroom
and
3. Unobstructed access to the major transit
stop.
Rental housing with:
1. All units affordable to lower Income
households except manager's unlt(s); and
2. Within one-half mile of a major transit stop; 0.5 per unit
and
3. 3 . Unobstructed access to the major transit
stop.
Senior citizen rental housing with:
1. All units affordable to lower Income
households except manager's unlt(s); and
either 0.5 per unit 2. Has paratransit service ; or
3. Is within one-half mile of fixed bus route
service that operates eight times per day,
with unobstructed access to that service.
Special needs rental housing with:
0.3 per unit 1. All units affordable to lower Income
Updated: 4/14/2016 8:22 AM by Merry Monlux Page 3
Staff Report (ID # 2666) Meeting of April 19, 2016
Maximum number of
Type of development required off-street
parking spaces
households except manager's unit(s); and
either
2. Has paratransit service; or
3. Is within one-half mile of fixed bus route
service that operates eight times per day,
with unobstructed access to that service.
5. Section 18.165.090 (Application requirements and review) to update the submittal
requirements for a density bonus application to reflect the updated provisions.
General Plan Conformance
The proposed Zoning Text Amendment would be in conformance with the General Plan and
the following policies, implementation measures and actions contained in the Land Use and
Housing Elements:
Land Use Policy 2-2.5: Zoning and Subdivision Regulations
Land Use Implementation 2-2.SA: Zoning Update: Update Fremont's zoning
regulations, to achieve consistency with the General Plan vision and Land Use plan.
Land Use Policy 2-2.6: Residential Density Ranges
Land Use Implementation 2-2.6.B: Density Bonuses: Allow densities which exceed
the ranges defined in the Land Use Element for projects using State density bonus
provisions (including senior housing and affordable housing), and for projects within
designated Transit-Oriented Development overlay areas, as shown on the Land Use Map.
Housing Policy 7 .01 Remove Constraints to Housing Development
Housing Action 7.01-B: Implement modifications to parking requirements as
appropriate: Parking can be a potential constraint to housing development due to the
associated costs. To allow flexibility, the City can consider reduced parking or tandem
parking when analysis indicates that residents are likely to need less parking based on
income-level and/or proximity to transit. The City has the abmty to allow these parking
reductions on a case-by-case basis through a Zoning Code Modification Finding.
Analysis: The proposed Zoning Text Amendment would ensure that the City is
implementing the most recent revisions to state law and allowing density bonuses that
would result in housing developments that exceed the ranges specified in the Land Use
Element of the General Plan when a specified percentage of units for very-low, low or
moderate income households are proposed. In addition, the proposed amendment would
remove constraints to affordable housing development by reducing required parking ratios
for projects that are eligible for a density bonus.
Zoning Regulations
In accordance with FMC Section 18.225.020(b), the Planning Manager has initiated the
proposed Zoning TextAmendment. In order to recommend approval to the City Council, the
Updated: 4/14/2016 8:22 AM by Merry Monlux Page 4
Staff Report (ID # 2666) Meeting of April 19, 2016
Planning Commission must make the findings specified in FMC Section 18.225.050,
described in the following section.
Findings for Approval
In order to approve the proposed Zoning Text Amendment, the City Council must make the
following findings In accordance with Fremont Municipal Code Section 18.225.050:
1. The proposed Zoning Text Amendment is consistent with the General Plan, Including
policies in the Land Use and Housing Elements as enumerated in the staff report.
2. The proposed Zoning Text Amendment furthers the public interest, convenience, and
general welfare of the city because It would ensure that Chapter 18.165 is In
compliance with state density bonus law and that the City is meeting its legal
requirements.
FISCAL IMPACT: None.
ENVIRONMENTAL REVIEW: The proposed Zoning Text Amendment is exempt from the
requirements of the California Environmental Quality Act (CEQA) pursuant to CEQA
Guldellnes Section 15061(b)(3) In that the proposed amendment does not have the
potential for causing a significant effect on the environment and is not subject to CEQA
review.
P..TTACH M ENTS:
" Draft Ordinance-Density Bonus
RECOMMENDATIONS:
1. Hold public hearing.
2. Find that the proposed Zoning Text Amendment is exempt from the requirements of
the California Environmental Quality Act (CEQA) pursuant to CEQA Guidelines Section
1506l(b)(3) because the proposed amendment does not have the potential for causing
a significant effect on the environment.
3. Find that the proposed Zoning Text Amendment is consistent with the General Plan,
including policies in the Land Use and Housing Elements as enumerated In the
staff report.
4. Find that the proposed Zoning Text Amendment furthers the public interest,
convenience, and general welfare of the City because it would ensure that Chapter
18.165 is in compliance with state density bonus law and that the City Is meeting Its
legal requirements.
5. Introduce an ordinance amending Fremont Municipal Code Chapter 18.165 (Density
Bonus and Affordable Housing Incentives) as shown in Exhibit "A."
Updated: 4/14/2016 8:22 AM by Merry Monlux Page 5
June 30, 2016
Los Angeles County
Department of Regional Planning
Planning/or the Challenges Ahead
TO: Supervisor Hilda L. Solis, Chair
Supervisor Mark Ridley-Thomas
Supervisor Sheila Kuehl
Supervisor Don Knabe
Supervisor Michael?W. A ~ novich
Director f
Richard J. Bruckner
Director
FROM : Richard J. B.ruckne[ a~
REPORT ON BOARD MOTION REG DING THE EQUITABLE DEVELOPMENT
\f\fORK PROGRAf.ll (AGENDA ITEM NO. 2, DECEMBER 8, 20'i5)
On December 8, 2015, the Los Angeles County Board of Supervisors (Board) instructed
the Director of the Department of Regional Planning (DRP), in coordination with the
directors of other appropriate departments, potentially including but not limited to Public
Works (DPW), Public Health (DPH), Parks and Recreation (DPR), Community
Development Commission {CDC), County Counsel, and the Fire Department (FD), to
initiate an Equitable Development Work Program consisting of the following :
• Update the Density Bonus Ordinance to further ease and incentivize the
development of affordable housing. The update should reflect state law changes
effected by Ass.embly Bill (AB) 2222 and AB 744, including the Incorporation of a
"no net loss" policy and parking requirement revisions; establish targets for
deeper and higher levels of affordability, including a category for extremely low-
income households; and other changes to strengthen the effectiveness of the
ordinance. '
• Initiate discussions with the City of Los Angeles on a nexus study for the creation
of a linkage fee.
() Provide a menu of options for the implementation of an inclusionary housing
program. The program should consider on-site affordable units as a mandatory
component of for-sale housing· projects and propose approaches to requiring
rental projects to provide on-site affordable units in exchange for discretionary
entitlements, public subsidy, and other public concessions.
320 West Temple Street• Los Angeles, CA 90012 • 213-974-6411•Fax:213-626-0434 •TDD: 213-617-2292
Each Supervisor
June 30, 2016
Page2
• Review the regulatory barriers to the establishment and expansion of community
land trusts and other shared equity models, and potential incentives to provide
their greater adoption.
• Propose additional strategies to preserve existing affordable housing and
incentivize the protection of new affordable housing; identify any necessary
procedural and state and local legislative adjustments.
o Produce a map of contaminated sites, such as Superfund sites, brownfields, and
toxic "hotspotsn in the unincorporated areas, and provide recommendations on
targeted land use policies that can be used to improve the hea lth and quality of
life for surrounding residents.
• Develop tools, including heat maps, equity scorecards, healthy design guidelines,
and other approaches to evaluate, monitor, and advance equity objectives in the
implementation of the General Plan, using relevant data from other County
departments as necessary to ensure a comprehensive analysis.
• Direct the Director of Planning to develop a framework for facllltatlng robust
engagement with affordable housing, economic development, and environmental
justice experts designed to provide technical assistance in carrying out this work
and to support the Board In strengthening these equitable development tools and
exploring new policies that promote equitable growth. The framework may
Include establishment of an advisory committee .
• Develop the Equitable Development Work Program in consultation with the
Healthy Design Workgmup, the Homeless Initiative, and the Affordable Housing
Steering Committee, to ensure efficiencies and coordination, and report back to
the Board in writing quarterty with an update on the status of Implementation and
a timeline for the advancement of ongoing initiatives.
o Chief Executive Officer to coordinate with the Director of Planning and other
departments, and to include real estate development and building industry
experts in the potential advisory committee and outreach of the Equitable
Development Work Program.
• To include the following in the report back to the Board: An explanation of
AB 2222 and the "no net loss" policy; whether density bonuses are ministerial or
require a public hearing; whether density bonuses are usually met with
community opposition because additional California Environmental Quality Act
analysis is not required, but create additional traffic; whether density bonuses are
subject to the same parking requirements as market rate units; the definition of a
linkage fee; the necessary analysis to determine the impact a linkage fee will
have on housing development; the reason for joining with the City of Los Angeles
on a linkage fee study and how the revenue would be split with them; whether
DRP has the resources to deal with proposed linkage fees ; the number of units
necessary to have a mandatory affordable housing program; the
definition ofa community land trust; examples of other shared equity models; the
definition of equity scorecards and how they can be used for or against new
development; whether the objectives can be accomplished in an individual
Community Standards District or Countywide; and whether to include
Each Supervisor
June 30, 2016
Page 3
representatives from the development community, i ncluding builders, engineers
and architects on the advisory council.
This report back provides an o v erview of DRP's and other relevant d epartments' efforts
over the second quarter of 20 16 . It also provides additional clarifying Information as
requested by the Board.
I. A FFORDABLE HOUSING
Density Bonus Ordinance
In this second quarter, DRP met with CDC to continue discussing common problems
and challenges in permit processing, affordable housing monitoring, and fee and
penalty collection. This will be used to inform the development of the draft ordinance.
DRP will continue to coordinate with CDC to streamline the permitting process and
improve monitoring procedures. In addition , DRP worked with County Counsel to
finalize a draft interim memo to Implement AB 2222 to facilitate continued compliance
with the State Density Bonus Law until the ordinance update is completed. The interim
memo, which is currently being reviewed by stakeholder groups and housing advocates,
is anticipated to be issued in early July.
Linkage Fee, lnclusionarv Housing. Affordable Housing Preservation, and
Community Land Trusts and Other Shared Equity Models
In this second quarter, DRP developed a scope of work for a consultant team that can
prepare the necessary analyses for a comprehensive affordable housing strategy that is
tailored for the unincorporated areas, and will Include considerations for a linkage fee on
development, inclusionary housing, affordable housing preservation, and community
land trusts and other shared equity models. In May 2016, staff attended a workshop on
community land trusts and cooperatives hosted by the nonprofit group T .R.U .S.T. South
Los Angeles.
Other Affordable Housing Efforts: Second Unit Ordinance Update and Pilot
Program
As part of the Homeless Initiative, DRP is updating the Second Unit Ordinance to
reduce obstacles to producing and preserving this lower-cost housing option. DRP is
also working with CDC to create a Second Unit Pilot Program to create, rehabilitate, or
improve the design of second units. During the reporting period , DRP has been
meeting internally, with CDC, and with a broader interdepartmental Second Unit Pilot
Program working group to discuss policy proposals and program design. DRP also
attended a community event to solicit input from designers and housing advocates on
regulatory challenges to creating second units, and on the design of the Second Unit
Pilot Program .
Each Supervisor
June 30, 2016
Page4
II. ENVIRONMENTAL JUSTICE
Toxic Hotspots Map/Green Zones Program
In the second quarter, DRP continued to collect various federal and state data sources
for the toxic hotspots map, based on the Input from the stakeholder groups and state
agency staff. DRP initiated conversations with FD , DPH, and DPW regarding the types
and availability of local data , as well as ways to coordinate the efforts to refine a
preliminary draft of the toxic hotspots map. DRP anticipates completion of the draft
Toxic Hotspots Map by the end of next quarter. DRP will also initiate community
outreach for the Green Zones Program based on the map results as well as
recommendations from stakeholder groups to develop land use policies , development
standards, and procedural changes t hat will implement the County's equity and
environmental justice goals.
Other Environmental Justice Efforts: Recycling and Solid Waste Ordinance
To support the County's environmental justice and sustainability efforts, DRP is
developing an ordinance to amend Title 22 to include definitions, standards, and uses
related to recycling and solid waste facilities. The Ordinance will establish permitted
uses within the Zoning Code and will serve as a permitting pathway in conjunction with
the DPW, DPH, and other County departments and state agencies. The Ordinance will
encourage recycling and solid waste facilities in a manner that protects sensit ive
receptors, ~elps achieve sustainability and cl imate goals, and promotes local
management of solid waste. DRP has been working closely with County departments
and Environmental Justice stakeholders to develop a draft ordinance, which will be
completed in 2017. DRP will begin conducting broader outreach with community
members, operators of recycling and solid waste facilities, and other stakeholders next
quarter. DRP anticipates that an Environmental Impact Report and final ordinance will
be completed in 2018.
Ill. TOOLS
Equity Scorecard
During the second quarter, training on racial equity was p rovided to the Equity
Scorecard Committee (ESC) by the Government Alliance on Race and Equity (GARE).
Staff also met with representatives from the County GARE cohort to continue to identify
opportunities for collaboration. The ESC also convened on June 9, 2016 to discuss the
Parks Needs Assessment . The ESC discussed how the methodology, pro cess, and
findings of the Parks Needs Assessment could be used to inform the development of
the Equity Scorecard mapping applicat ion. DRP also developed a p rototype of the
mapping application and demonstrated it at the ESC meeting to garner feedback and
Each Supervisor
June 30, 2016
Page5
comment s. DRP w ill continue to lead and coord inate the activities of the ESC and Its
three subcommittees -Policy Advisory, GIS/Data Management, and Public Outreach.
IV. STAKEHOLDER ENGAGEMENT
During the second quarter, DRP reconvened the group of stakeholders, comprised of
representatives from legal aid organizations, funders, community organizers, public
health experts, and affordable housing developers, in May 2016 and expanded it to
include architects and representatives from the real estate and building industry. The
group received updates on DRP equity programs including the Equity Scorecard,
Recycling and Solld Waste Ordinance, Green Zones Program, Density Bonus
Ordinance update, lncluslonary Housing, Linkage Fee, community land trusts, Incentive
zoning/value capture, and the Second Unit Ordinance update and pilot program. The
group discussed DRP's approach to implementing AB 2222 and stakeholders offered to
share data and connect the County with additional stakeholders and sources of
technical assistance. DRP will reconvene the group in July 2016.
In addition, during the second quarter, DRP continued to meet with the Los Angeles
Environmental Justice Network, and also Initiated conversations with environmental
justice advocates and agencies. DRP hosted its first LA County Green Zones
Stakeholder Meeting on June 22, 2016, and was attended by environmental justice
advocates, County departments, State agency staff, and researchers. To date, DRP
has convened three meetings to receive stakeholder input on the Green Zones Program
and the Recycling and Solid Waste Ordinance. DRP has also been exploring additional
ways to conduct outreach to Los Angeles County's dispersed urban Indian population.
DRP staff attended the Cal State Dominguez Hills Pow Wow and has been in contact
with several Native American community organizations, as well as health servlc.e
organizations to partner in communication efforts.
DRP is currently developing web resources for stakeholders to access detailed
descriptions and information on the status of the programs discussed.
The next report back will be provided to you no later than September 30, 2016.
Each Supervisor
June 30, 2016
Page6
Should you have any questions about this report, please contact Connie Chung,
General Plan Development and Housing Section, at (213) 974-6417 or
cchung@planning.lacounty.gov.
RJB:MC:CC:ems
c: Executive Office, Board of Supervisors
County Counsel
Chief Executive Office
Chief Information Office
Community Development Commission
Fire Department
Internal Services
Parks and Recreation
Public Health
Public Works
S_AP _063016_BMR_EQUITABLE_DEVELOMENT
From:
Sent:
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Subject:
John Shepardson <shepc:rdsonlaw@me.com>
Wednesday, August 17, 2016 1:06 AM
BSpector; Marica Sayoc; Steven Leonardis; Rob Rennie; Marcia Jensen; Greg Larson;
Robert Schultz; Council
No. 40-AB No. 2222 (Legislative Counsel's Digest)
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AB-2222 H ousi n g density bonus.c2013-2014J
Text Votes History Bill Analysis Today's Law As Amended m=-.·Jcompare Versions Status Comments To
Author
SHARETHIS:IJ ~---
BILL START
--------------------------------· ---------·
1
Assembly Bill No. 2222
CHAPTER682
An act to amend Sections 65915 and 65915.5 of the Government Code, relating to housing.
[Approved by Governor September 27, 2014. Filed with Secretary of
State September 27, 2014.]
LEGISLATIVE COUNSEL'S DIGEST
AB 2222, Nazarian. Housing density bonus.
The Pl a nning and Zoning Law requires, when a developer of housing proposes a hous ing development
within the jurisdiction of the local government, that the city, county, or city and county provid e the
developer with a density bonus and other incentives or concessions for the production of lo wer income
housing units or the donation of land within the development if the developer, a mong other things,
agrees to construct a specified percentage of units for very low, low-, or moderate-income households
or qualifying residents.
Existing law requires continued affordability for 30 years or longer, as speci fied, of all very low and low-
income units that qualified an applicant for a density borius.
This bill instead would require continued affordability for 55 years or longer, as specified, of all very
low and low-income rental units that qualified an applicant for a density bonus. This bill would also
include very low and low-income persons among the initial occupants of for-sale units. Th i S
bill also would prohibit an applicant
from receiving a density bonus
unless the proposed housing
development would, for units subject
to certain affordability requirements
that were occupied by qualifying
persons on the date of application,
2
provide at least the same number of units of
equivalent size or type, or both, to b e made
available for rent at aff ord abl e
housing costs to, and occupied by,
persons and families in the same or
lower income category as those
households in occupancy . Forthosesubjecttypesofunits
th a t have been vacated or demolished at the time of application, this bill would condition a density
bonus upon at least the same number of units of equivalent size or type, or both, as existed at the
highpoint in the preceding 5 years being made available at affordable rent or affordable housing cost to,
and occupied by, persons and families in the same or lower income category as those persons and
families in occupancy at that time, if known.
Existing law also requires a city, county, or city and county to grant a density bonus or other incentives,
as specified, when an applicant for.approval to convert apartments to a condominium project agrees,
among other things, to provide a specified percentage of units for low-or moderate-income persons and
families or for lower income households, as defined.
This bill also would prohibit an applicant from receiving a density bonus unless the proposed
condominium project would replace the existing affordable units with at least the same number of
affordable units of equivalent size or type, or both, and the proposed development, inclusive of the units
replaced pursuant to the requirements described above, contains affordable units according to specified
percentages or consists entirely of affordable units.
DIGEST KEY
Vote: majority Appropriation: no Fiscal Committee: no Local Program: no
BILL TEXT
TFIE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS
FOLLOWS:
SECT~ON 1.
Section 65915 of the Government Code is amended to read:
65915.
(a) When an applicant seeks a density bonus for a housing development within, or for the donation of
land for housing within, the jurisdiction of a city, county, or city and county, that local government shall
provide the applicant with incentives or concessions for the production of housing units and child care
3
facilities as prescribed in this section. All cities, counties, or cities and counties shall adopt an ord inance
that specifies how compliance with this section will be implemented. Failure to adopt an o rdinance shall
not relieve a city, county, or city and county from complying with this section.
(b) (1) A city, county, or city and county shall grant one density bonus, the amount of which shall be as
specified in subdivision (t), and incentives or concessions, as described in subdivision ( d), when an
applicant for a housing development seeks and agrees to construct a housing development, excluding
any units permitted by the density bonus awarded pursuant to this sectio n, that will contain a t least any
one of the following :
(A) Ten percent of the total units of a housing development for lower income households, as defined in
Section 50079.5 of the Health and Safety Code.
(B) Five percent of the total units of a housing development for very low income households, as defined
in Section 50105 of the Health and Safety Code.
(C) A senior citizen housing development, as defined in Sections 51.3 and 51.12 of the Civil Code, or
mobilehome park that limits residency based on age requirements for housing for old e r pers ons
pursuant to Section 798.76 or 799.5 of the Civil Code .
(D) Ten percent of the total dwelling units in a common interest development as defined in Section
4100 of the Civil Code for persons and familie s of moderate income, as defined in Secti on 50093 of the
Health and Sa fety Code, provided that all units in the development are offered to the public for
purchase.
(2) For purposes of calculating the amount of the density bonus pursuant to subdivisio n (f), the
applicant who requests a density bonus pursuant to this subdivision shall elect whethe r the bonus shall
be awarded on the basis of subparagraph (A), (8), (C), or (D) of paragraph (1).
(3) For the purposes of this section, "total units" or "total dwelling units " does not include units ad d ed
by a density bonus awarded pursuant to this section or any local law gr anting a greater den s ity bonus.
(c) (1) An applicant shall agree to, and the city, county, or city and county shall en s ure, continued
affordability of all very low and low-income rental units that qualified the applican t for the awa rd of the
density bonus for 55 years or a longer period of time if required by the construction or m ortgage
financing assistance program, mortgage insurance program, or re ntal subs idy program. Rents for the
lower income density bonus units shall be set at an affordable rent as defin e d in Section 5005 3 of the
Health and Safety Code.
(2) An applicant shall agree to, and the city, county, or city and county shall ens ure that, the initial
occupant of all for-sale units that qualified the applica nt for the award of the density bonus ar e persons
and families of very low, low, or moderate income, as required, and that the un its are offe r e d at an
affordable housing cost, as that cost is defined in Section 50052 .5 of the Health and Safety Code. Th e
local governme nt shall enforce an equity sharing agr eement, unless it is in conflict w ith the
requirements of another public funding source or law. The following apply to the equity sha ring
agreement:
(A) Upon resale, the seller of the unit shall retain the va lue of any improvements, the down payment, and
the se11er's proportionate share of appreciation. The local governme nt shall reca pture any initial
subsidy, as defined in subparagraph (8), and its proportionate shar e of appreciation, as defined in
subparagraph (C), which amount shall be used within five years for any of t he purposes des cribed in
subdivision ( e) of Section 33334.2 of the Health and Safety Code that promote home owner ship.
4
(B) For purposes of this subdivision, the local government's initial subsidy shall be equal to the fair
market value of the home at the time of in itial sale minus the initial sale price to the moderate-income
household, plus the amount of any down payment assistance or mortgage assistance. If upon resale the
market value is lower than the initial market value, then the value at the time of the resale shall be used
as the initial market value.
(C) For purposes of this subdivision, the local government's proportionate share of appreciation shall be
equal to the ratio of the local government's initial subsidy to the fair market value of the home a t the
time of initial sale.
(3) (A) An applicant shall be ineligible for a density bonus or any other
incentives or concessions under this section if the housing
development is proposed on any property that includes a parcel or
parcels on ·which rental dwelling units are or, if the dwelling units
have been vacated or demolished in the five-year period preceding
the application, have been subject to a recorded covenant,
ordinance, or law that restricts rents to levels affordable to persons
and families of lower or very low income; subject to any other form
of rent or price control through a public entity's valid exercise of its
police power; or occupied by lovver or very !ow income households,
unless the proposed housi n g development replaces those units, ar.d
either o'f the foHo;Nin g applies :
~i } l 'h e propose d housing developmen t; inclusive o'f th e units
rep~aced pursuant to this paragraph, contains affordab l e units at
the percentages set forth in subdivision (b ).
(ii) Each unit in th e de v e lopment, exdu sive of a m anager's unit or
uni'ts, is affordable to, and occupied by, e ither a lo wer or very lo w
i ncorrae household.
(B) For the purposes of this paragraph, "replace" sh all mean either
of the foUolivin g:
(i) If any dv+1e Ui ng l!nas described in subparagraph {Aj are occupied
on the date of application,, the proposed ho using deve~opmen: shaH
provide at least th e same nu11·1ber of units of equivalent sfa:e o r
·type; or both; 't10 be rni~de avaHab~e at affordable rent or a·ffordab!e
5
housing cost t o, and occu p ied by, person s a nd f amilies in t he sa m e
or iower ~n co rne catego ry as those h o u se holds in o cc upancy. For
unoccupied dwelling units described in subparagraph (A) in a
development with occupied units, the proposed housing
development shall provide units of equivalent size or type, or both,
to be made available at affordable rent or affordable housing cost to,
and occupied by, persons and families in the same or lower income
category in the same proportion of affordability as the occupied
units. All replacement calculations resulting in fractional units shall
be rounded up to the next whole number. If the replacement units
will be rental dwelling units, these.units shall be subject to a
recorded affordability restriction for at least 55 years. If the proposed
development is for-sale units, the units replaced shall be subject to
paragraph (2).
(ii) If all dwelling units described in subparagraph (A) have been
vacated or demolished within the five-year period preceding the
application, the proposed housing development shall provide at least
the same number of units of equivalent size or type, or both, as
existed at the highpoint of those units in the five-year period
preceding the application to be made available at affordable rent or
affordable housing cost to, and occupied by, persons and families in
the same or lower income category as those persons and families in
occupancy at that time, if known. If the incomes of the persons and
families in occupancy at the highpoint is not known, then one-half of
the required units shall be made available at affordable rent or
affordable housing cost to, and occupied by, very low income persons
and families and one-half of the required units shall be made
available for rent at affordable housing costs to, and occupied by,
low-income persons and families . All replacement calculations
resulting in fractional units shall be rounded up to the next whole
number. If the replacement units will be rental dwelling units, these
6
units shall be subject to a recorded affordability restriction for at
least 55 years. If the proposed development is for-sale units, the
units replaced shall be subject to paragraph (2).
(C) Paragraph (3) of subdivision (c) does n ot apph/ to an applicant
seeking a density bonus for a proposed housing development i'f the i r
appBcation \!Va s s ubrnitte d t oi o r processed by, a city, county, or city
and county b e fore J an uar\~ l ; 2 015.
( d) (1) An applicant for a density bonus pursuant to subdivision (b) may submit to a city, county, or city
and county a proposal for the specific incentives or concessions that the applicant requests pursuant to
t hi s section, and may request a meeting with the city, county, or city and county. The city, county, or city
and county shall grant the concession or incentive requested by the applicant unless the city, county, or
city and county makes a written finding, based upon substantial evidence, of any of the following:
(A) The concession or incentive is not required in order to provide for affordable housing costs, as
defined in Section 50052.5 of the Health and Safety Code, or for rents for the targeted units to be set as
specified in subdivision (c).
(B) The concession or incentive would have a specific adverse impact, as defined in paragraph (2) of
subdivision ( d) of Section 65589.5, upon public health and safety or the physical environment or on any
real property that is listed in the California Register of Historical Resources and for which there is no
feasible method to satisfactorily mitigate or avoid the specific adverse impact without rendering the
development unaffordable to low-and moderate-income households.
(C) The concession or incentive would be contrary to state or federal law.
(2) The applicant shall receive the following number of incentives or concessions:
(A) One incentive or concession for projects that include at least 10 percent of the total units for lower
income households, at least 5 percent for very low income households, or at least 10 percent for
persons and families of moderate income in a common interest development.
(B) Two incentives or concessions for projects that include at least 20 percent of the total units for
lower income households, at least 10 percent for very low income households, or at least 20 percent for
persons and families of moderate income in a common interest development.
(C) Three incentives or concessions for projects that include at least 30 percent of the total units for
lower income households, at least 15 percent for very low income households, or at least 30 percent for
persons and families of moderate income in a common interest development.
(3) The applicant may initiate judicial proceedings if the city, county, or city and county refuses to grant
a requested density bonus, incentive, or concession. If a court finds that the refusal to grant a requested
density bonus, incentive, or concession is in violation of this section, the court shall award the plaintiff
reasonable attorney's fees and costs of suit. Nothing in this subdivision shall be interpreted to require a
local government to grant an incentive or concession that has a specific, adverse impact, as defined in
paragraph (2) of subdivision ( d) of Section 65589.5, upon health, safety, or the physical environment,
and for which there is no feasible method to satisfactorily mitigate or avoid the specific adverse impact.
Nothing in this subdivision shall be interpreted to require a local government to grant an incentive or
7
concession that would have an adverse impact on any real property that is listed in the California
Register of Historical Resources. The city, county, or city and county shall establish procedures for
carrying out this section, that shall include legislative body approval of the means of compliance with
this section.
(e) (1) In no case may a city, county, or city and county apply any development standard that will have
the effect of physically precluding the construction of a development meeting the criteria of subdivision
(b) at the densities or with the concessions or incentives permitted by this section. An applicant may
submit to a city, county, or city and county a proposal for the waiver or reduction of development
standards that will have the effect of physically precluding the construction of a development meeting
the criteria of subdivision (b) at the densities or with the concessions or incentives permitted under this
section, and may request a meeting with the city, county, or city and county. If a court finds that the
refusal to grant a waiver or reduction of development standards is in violation of this section, the court
shall award the plaintiff reasonable attorney's fees and costs of suit. Nothing in this subdivision shall be
interpreted to require a local government to waive or reduce development standards if the waiver or
reduction would have a specific, adverse impact, as defined in paragraph (2) of subdivision (d) of
Section 65 589.5, upon health, safety, or the physical environment, and for which there is no feasible
method to satisfactorily mitigate or avoid the specific adverse impact. Nothing in this subdivision shalJ
be interpreted to require a local government to waive or reduce development standards that would
have an adverse impact on any real property that is listed in the California Register of Historical
Resources, or to grant any waiver or reduction that would be contrary to state or federal law.
(2) A proposal for the waiver or reduction of development standards pursuant to this subdivision shall
neither reduce nor increase the number of incentives or concessions to which the applicant is entitled
pursuant to subdivision (d).
(t) For the purposes of this chapter, "density bonus" means a density increase over the otherwise
maximum allowable residential density as of the date of application by the applicant to the city, county,
or city and county. The applicant may elect to accept a lesser percentage of density bonus. The amount
of density bonus to which the applicant is entitled shall vary according to the amount by which the
percentage of affordable housing units exceeds the percentage established in subdivision (b ).
(1) For housing developments meeting the criteria of subparagraph (A) of paragraph (1) of subdivision
(b ), the density bonus shall be calculated as follows:
Percentage Low-Income Units Percentage Density Bonus
10 20
11 21.5
12 23
13 24.5
14 26
15 27.5
17 30.5
18 32
19 33.S
8
20 35
(2) For housing developments meeting the criteria of subparagraph (BJ of paragraph (1) of subdivision
(b ), the density bonus shall be calculated as follows:
Percentage Very Low Income Units Percentage Density Bonus
5 20
6 22.5
7 25
8 27.5
9 30
10 32.5
11 35
(3) For housing developments meeting the criteria of subparagraph (CJ of paragraph (1) of subdivision
(b ), the density bonus shall be 20 percent of the number of senior h o using units.
(4) For housing developments meeting the criteria of subparagraph (D) of paragraph (1) of subdivision
(b), the density bonus shall be calculated as follows:
Percentag e Moderate-Income Units Percentage Density Bonus
10 5
11 6
12 7
13 8
14 9
15 10
16 11
17 12
18 13
19 14
20 15
21 16
22 17
23 18
2 4 19
9
25 20
26 21
27 22
28 23
29 24
30 25
31 26
32 27
33 28
34 29
35 30
36 31
37 32
38 33
39 34
40 35
(5) All density calculations resulting in fractional units shall be rounded up to the next whole number
The granting of a density bonus shall not be interpreted, in and of itself, to require a general plan
amendment, local coastal plan amendment, zoning change, or other discre tionary approval.
(g) (1) When an applicant for a tentative subdivision map, parcel map, or other residential development
approval donates land to a city, county, or city and county in accordance with this subd ivi sion, the
applicant shall be entitled to a 15-percent increase above the otherwise maximum allowable residential
density for the entire development, as follows :
Percentage Very Low Income Percentage Density Bonus
10 15
11 16
12 17
13 18
14 19
15 20
16 21
17 22
10
18 23
19 24
20 25
2 1 26
22 27
23 28
2 4 29
25 30
26 31
27 32
28 33
29 34
30 35
(2) This increase shall be in addition to any increase in density mandated by subdivision (b ), up to a
maximum combined mandated density increase of 35 percent if an applicant seeks an increase
pursuant to both this subdivision and subdivision (b). All density calculations resulting in fractional
units shall be rounded up to the next whole number. Nothing in this subdivision shall be construed to
enlarge or diminish the authority of a city, county, or city and county to require a developer to donate
land as a condition of development An applicant shall be eligible for the increased density bonus
described in this subdivision if all of the following conditions are met:
(A) The applicant donates and transfers the land no later than the date of approval of the final
subdivision map, parcel map, or residential development application.
(B) The developable acreage and zoning classification of the land being transferred are sufficient to
permit construction of units affordable to very low income households in an amount not less than 10
percent of the number of residential units of the proposed development.
(C) The transferred land is at least one acre in size or of sufficient size to permit development of at least
40 units, has the appropriate general plan designation, is appropriately zoned with appropriate
development standards for development at the density described in paragraph (3) of subdivision (c) of
Section 65583.2, and is or will be served by adequate public facilities and infrastructure.
(D) The transferred land shall have all of the permits and approvals, other than building permits,
necessary for the development of the very low income housing units on the transferred land, not later
than the date of approval of the final subdivision map, parcel map, or residential development
application, except that the local government may subject the proposed developme'nt to subsequent
design review to the extent authorized by subdivision (i) of Section 65583.2 if the design is not
reviewed by the local government prior to the time of transfer.
(E) The transferred land and the affordable units shall be subject to a deed restriction ensuring
continued affordability of the units consistent with paragraphs (1) and (2) of subdivision ( c ), which
shall be recorded on the property at the time of the transfer.
11
(F) The land is transferred to the Jocal agency or to a housing developer approved by the local agency.
The local agency may require the applicant to identify and transfer the land to the developer.
(G) The transferred land shall be within the boundary of the proposed development or, if the local
agency agrees, within one-quarter mile of the boundary of the proposed development.
(H) A proposed source of funding for the very low income units shall be identified not later than the
date of approval of the final subdivision map, parcel map, or resi~ential development application.
(h) (1) When an applicant proposes to construct a housing development that conforms to the
requirements of subdivision (b) and includes a child care facility that will be located on the premises of,
as part of, or adjacent to, the project, the city, county, or city and county shall grant either of the
following:
(A) An additional density bonus that is an amount of square feet of residential space that is equal to or
greater than the amount of square feet in the child care facility.
(B) An additional concession or incentive that contributes significantly to the economic feasibility of the
construction of the child care facility.
(2) The city, county, or city and county shall require, as a condition of approving the housing
development, that the following occur:
(A) The child care facility shall remain in operation for a period of time that is as long as or longer than
the period of time during which the density bonus units are required to remain affordable pursuant to
subdivision (c).
(B) Of the children who attend the child care facility, the children of very low income households, lower
income households, or families of moderate income shall equal a percentage that is equal to or gre at er
than the percentage of dwelling units that are required for very low income households, lower income
households, or families of moderate income pursuant to subdivision (b).
(3) Notwithstanding any requirement of this subdivision, a city, county, or city and county shall not be
required to provide a density bonus or concession for a child care facility if it finds, based upon
substantial evidence, that the community has adequate child care facilities.
( 4) "Child care facility," as used in this section, means a child day care facility other than a family day
care home, including, but not limited to, infant centers, preschools, extended day care facilities, and
schoolage child care centers.
(i) "Housing development," as used in this section, means a development project for five or more
residential units. For the purposes of this section, "housing development" also includes a subdivision or
common interest development, as defined in Section 4100 of the Civil Code, approved by a city, county,
or city and county and consists of residential units or unimproved residential lots and either a project to
substantially rehabilitate and convert an existing commercial building to residential use or the
substantial rehabilitation of an existing multifamily dwelling, as defined in subdivision ( d) of Section
65863.4, where the result of the rehabilitation would be a net increase in available residential units. For
the purpose of calculating a density bonus, the residential units shall be on contiguous sites that are the
subject of one development application, but do not have to be based upon individual subdivision rr.aps
or parcels. The density bonus shall be permitted in geographic areas of the housing developm e nt other
than the areas where the units for the lower income households are located.
12
U) (1) The granting of a concession or incentive shall not be interpreted, in and of itself, to require a
general plan amendment, local coastal plan amendment, zoning change, or other discretionary
approval. This provision is declaratory of existing law.
(2) Except as provided in subdivisions ( d) and ( e ), the granting of a density bonus shall not be
interpreted to require the waiver of a local ordinance or provisions of a local ordinance unrelated to
development standards.
(k) For the ;:mrposes of this chapter, concession or incentive means any of the following:
(1) A reduction in site development standards or a modification of zoning code requirements or
architectural design requ1rements that exceed the minimum building standards approved by the
California Building Standards Commission as provided in Part 2.5 (commencing with Section 18901) of
Division 13 of the Health and Safety Code, including, but not limited to, a reduction in setback and
square footage requirements and in the ratio of vehicular parking spaces that would otherwise be
required that results in identifiable, financially sufficient, and actual cost reductions.
(2) Approval of mixed-use zoning in conjunction with the housing project if commercial, office,
industrial, or other land uses will reduce the cost of the housing development and if the commercial,
office, industrial, or other land uses are compatible with the housing project and the existing or planned
development in the area where the proposed housing project will be located.
(3) Other regulatory incentives or concessions proposed by the developer or the city, county, or city and
county that result in identifiable, financially sufficient, and actual cost reductions.
(l) Subdivision (k) does not limit or require the provision of direct financial incentives for the housing
development, including the provision of publicly owned land, by the city, county, or city and county, or
the waiver of fees or dedication requirements.
(m) This section shall not be construed to supersede or in any way alter or lessen the effect or
application of the California Coastal Act of 1976 (Division 20 (commencing with Section 30000) of the
Public Resources Code).
(n) If permitted by local ordinance, nothing in this section shall be construed to prohibit a city, county,
or city and county from granting a density bonus greater than what is described in this section for a
development that meets the requirements of this section or from granting a proportionately lower
density bonus than what is required by this section for developments that do not meet the
requirements of this section.
(o) For purposes of this section, the following definitions shall apply:
(1) "Development standard" includes a site or construction condition, including, but not limited to, a
height limitation, a setback requirement, a floor area ratio, an onsite open-space .requirement, or a
parking ratio that applies to a residential development pursuant to any ordinance, general plan element,
specific plan, charter, or other local condition, law, policy, resolution, or regulation.
(2) "Maximum allowable residential density" means the density allowed under the zoning ordinance
and land use element of the general plan, or if a range of density is permitted, means the maximum
allowable density for the specific zoning range and land use element of the general plan applicable to
the project. Where the density allowed under the zoning ordinance is inconsistent with the density
allowed under the land use element of the general plan, the general plan density shall prevail.
13
(p) (1) Upon the request of the developer, no city, county, or city and county shall require a vehicular
parking ratio, inclusive of handicapped and guest parking, of a development meeting the criteria of
subdivision (b ), that exceeds the following ratios:
(A) Zero to one bedroom: one onsite parking space.
(B) Two to three bedrooms: two onsite parking spaces.
(C) Four and more bedrooms: two and one-half parking spaces.
(2) If the total number of parking spaces required for a development is other than a whole number, the
number shall be rounded up to the next whole number. For purposes of this subdivision, a development
may provide "onsite parking" through tandem parking or uncovered parking, but not through onstreet
parking.
(3) This subdivision shall apply to a development that meets the requirements of subdivision (b) but
only at the request of the applicant An applicant may request parking incentives or concessions beyond
those provided in this subdivision pursuant to subdivision (d).
SEC. 2.
Section 65915.5 of the Government Code is amended to read:
65915.5.
(a) When an applicant for approval to convert apartments to a condominium proj ect agrees to provide
at least 33 percent of the total units of the proposed condominium project to persons and families of
low or moderate income as defined in Section 50093 of the Health and Safety Code, or 15 percent of the
total units of the proposed condominium project to lower income households as defined in Section
5007 9 .5 of the Health and Safety Code, and agrees to pay for the reasonably necessary adm inistrative
costs incurred by a city, county, or city and county pursua nt to this section, the city , county, or city and
county shall either (1) grant a density bonus or (2) provide other incentives of equivalent financia l
value. A city, county, or city and county may place such reasonable conditions on the granting of a
density bonus or other incentives of equivalent financial value as it finds appropriate, including, but not
limited to, conditions which assure continued affordability of units to subsequent purchasers who are
persons and families of low and moderate income or lower income households.
(b) For purposes of this section, "density bonus" means an increase in units of 25 p ercent over the
number of apartments, to be provided within the existing structure or structures proposed for
conversion.
(c) For purposes of this section, "other incentives ot' equivalent financial value" s hall not be construed t o
require a city, county, or city and county to provide cash transfer payments or other monetary
compensation but may include the reduction or waiver of requirements which the city, county, or city
and county might otherwise apply as conditions of conversion approval.
(d) An applicant for approval to convert apartments to a condominium project may submit to a city,
county, or city and county a preliminary p roposal pursuant to this section prior to the submittal of any
formal requests for subdivision map approvals. The city, county, or city and county s hall, within 90 days
of receipt of a written proposal, notify the applicant in writing of the manner in w hich it will comply
14
with this section. The city, county, or city and county shall establish procedures for carrying out this
section, which shall include legislative body approval of the means of compliance with this section.
(e) Nothing in this section shall be construed to require a city, county, or city and county to approve a
proposal to convert apartments to condominiums.
(f) An applicant shall be ineligible for a density bonus or other incentives under this section if the
apartments proposed for conversion constitute a housing development for which a density bonus or
other incentives were provided under Section 65915.
(g) An applicant shall be ineligible for a density bonus or any other incentives or concessions under this
section !f the condominium project is proposed on any property that includes a parcel or parcels on
which rental dwelling units are or, if the dwelling units have been vacated or demolished in the five-
year period preceding the application, have been subject to a recorded covenant, ordinance, or law that
restricts rents to levels affo::-dable to persons and families of lower or very low income; subject to any
othe;· form of rent or price control through a public entlty's valid exercise of its police power; or
occupied by lower or very low income households, unless the proposed condominium project replaces
those units, as defined in subparagraph (B) of paragraph (3) of subdivision (c) of Section 65915, and
either of the following applies:
(1) The proposed condominium project, inclusive of the units replaced pursuant to subparagraph (B) of
paragraph (3) ~f subdivision ( c) of Section 65915, contains affordable units at the percentages set forth
in subdivision (a).
(2) Each unit in the development, exclusive ofa manager's unit or units, is affordable to, and occupied
by, either a lower or very low income household.
(h) Subdivision (g) do es not apply to an applicant seeking a density bonus for a proposed housing
development if their application was submitted to, or processed by, a city, county, or city and county
before January 1, 2015.
Quoting from https: //leginfo.legislature.ca.gov /faces /billTextClient.xhtml?bill id=201520160AB2556 I
CALIFORNIA LEGISLATURE-2015-2016 REGULAR SESSION
ASSEMBLY BILL No. 2556
15
Introduced by Assembly Member Nazarian
February 19, 2016
An act to amend Section 65915 of the Government Code, relating to housing.
LEGISLATIVE COUNSEL'S DIGEST
AB 2556, as amended, Nazarian. Density bonuses.
The Planning and Zoning Law requires, when an applicant proposes a housing
development within the jurisdiction of a local government, that the city, county, or city
and county provide the developer with a density bonus and other incentives or
concessions for the production of lower income housing units or for the donation of
land within the development if the developer, among other things, agrees to construct
a specified percentage of units for very low, low-, or moderate-income households or
qualifying residents . That law makes an applicant ineligible for a density bonus if the
housing development is proposed on property with existing or certain former dwelling
units subject to specific affordability requirements, including a form of rent or price
control through a public entity's valid exercise of its police power, or on property with
existing units occupied by lower or very low income households, unless the proposed
housing development replaces those units as prescribed. That law defines "replace" for
those pllrposes. purposes to mean, among other things, providing the same number of equivalent units to
persons or families in the same or lower income categories.
This bill would revise-tfle that definition of "replace" to require-a-aty;county~y-ttRti
county to adopt a rebuttable presmnptionpresumption, based on certain federal data , regarding the
proportion of lower income renter households that occupy existing-t::l-IHts units, if the
income category of the households in occupancy is not known. The bill, if the property
for the proposed housing development is subject to a form of rent or price control
through a local government's valid exercise of its police power and is or was occupied
by a person or family with an income above lower income, would authorize the city,
county, or city and county either to require replacement units to be made available at
affordable rent or affordable housing cost to, and occupied by, low-income persons or
families, as specified, or to require the units to be replaced in compliance with the rent
or price control ordinance of the jurisdiction . By increasing the duties of local officials,
this bill would impose a state-mandated local program.
16
Quoting from
http ://www.kmtg .com/sites/default/files/files/Density0/o20Bonus0/o20Law 2015 Web%
20Versi on .pdf
How the Density Bonus Law Can Help in a Hostile Jurisdic·~ion
It is important to know that the density bonus is a state law requirement which is mandatory on cities and counties,
even chartAr citieo:> which are free from many other state requirements. A developer who meets the law's
requiremenis fc.K affordable
or senior units is P.ntitled to the density bonus and other assistance as of right, regardless of what the locality wants
(subject to limited health and safety exceptions). The density bonus statute can be used to achieve reductions in
devalopment standards
or the granting of concessions or incentives from jurisdictions that otherwise would not be inclined to grant those
items . Examples might incl ude a reduction in parking standards if those standards are deemed excessive by the
dC:;ve l op~r. or other reductions in development standards if needed to achieve the total density permitted by the
dens ity bo:-i•Js .
Developers who none~heless encounter hostility from local jurisdictions are provided several tools
to ensure, that a required density bonus is actually granted . Developers are entitled to an informal meeting with a
local jurisd iction which fails to modify a requested development standard. If a developer successfully sues the
locality to enforce the density bonus requirements, it is entitled to an award of its attorneys' fees. The obligation to
pay a developer's
"A developer who meets the law's requirements for affordable or senior units
is entitled to the density bonus and other assistance as of right, regardless of what the locality
wants ."
attorneys' fees is a powerful incentive for local jurisdictions to voluntarily comply with the state law density bonus
requirements, even when the jurisdiction is not in favor of its effects on the project.
Density Bonus anci Replacement Housing
New legislation effective as of January 1, 2015 (Assembly Bill 2222) requires developers obtaining a density bonus
to rep •ace existing affordable units demolished or vacated prior to the density bonus
application, in addition to providing new affordable units.
Determination Letter -Department of City Planning -City of Los Angeles
planning. lacitv.org/llbertv/home/index/pdis/26C73
·'1cr 1 :;, .r.f11R. ··DETERMINATION -Density BonusiAffordable Housing Incentives ...
residential uniisinc!uding Density Bonus Units. 3 .... The Applicant will present a copy of the
17
recorded covenant to the ... The proposed Project shall provide minimum east and west side yard
..... Section 50052.5 addresses owner-occupied.
Quoting from
http://www.cityofberkeley.info/uploadedFiles/Rent Stabilization Board/Level 3 -
General/8. a. 3. Leg islative%20u pdate0/o20with %20Housing%20Bi lls%20matrix. pdf
18
Land Use
Befor-e the Governor:
AB 222 2 (Nazarfan) a.ddresses the preservat
proposlng to deve.lop a residential project, 4
condominium project, qualifies for ~ densit~
set-a.side for-affordable h·ouslng. This bill w<
incentive, or concession if a proposed hous ·
whe.re dweUing units ha.ve,. at .~ny time in th
very low-or low~incoroe households or subj
I lc>WflVPf1 illl ilf lfl!iC.ililt . ll lflY OV~rr.on 'f~ this (:
Pquival0nt. afforclafl.ility and size and/<>r typ«
housing units under the· density bonus for1r
incre·ases th .e= required .affordability from 30
quaUfied an applicant fora density bonus •. T
Governor.
19
Quoting from http ://www.cityofpaloalto.org/civicax/filebank/documents/53494
<(I)
-----~ c 1 r v o ·
PA\.O
A1.1'0
City of Palo Alto {ID# 7205) City Council Staff Report
20
Report Type: Inter-Governmental Legislative Affairs Meeting Date : 8/22/2016 Summary
Title: Governor's By Right Housing Bill --Status Update
Title: Status Update and Potential City Responses to the Governor's "By Right" Housing
Bill and Pending Bills Addressing Housing Issues
From: City Manager
Lead Department: Planning and Community Environment
---------------------·--
21
From:
~nt:
To:
Subject:
John Shepardson <shepardsonlaw@me.com>
Wednesday, August 17, 2016 1:39 AM
BSpector; Marico Sayoc; Steven Leonardis; Rob Rennie; Marcia Jensen; Council; Laurel
Prevetti; Robert Schultz; Joel Paulson
No. 40: Director's Determination (City of LA)
Quoting from the Director's Determination (City of Los Angeles) (emphasis added):
Applicant
Dora Leong Gallo
A Community of Friends 3701 Wilshire Blvd., Ste. 700 Los Angeles, CA 90010
Property Owner
METRO
1 Gateway Plaza, Mail Stop 99-23-4 Los Angeles, CA 90012
Representative
Noah Adler
Craig Lawson & Co ., LLC 3221 Hutchison Ave., Ste. D Los Angeles, CA 90034
Loo~ CA 90012-4801
VINCENT P. BERTONI, AICP
(213) 971-1271
USA M . Wl:BBER, AICP
OEPUTV DIRECTCf\
(213) 971-1274
JAN ZATORSKI
DEPUYY DIRECTOR
(213) 978-1273 FAX: (213) 971-1275
INFORMATION
b1112·lLP.:anning.lacitv.ora
C. f L A I EXECUTIVE OFFICES 200N .$pringS-~Room525 1ty 0 OS nge es
CALIFORNIA
ERIC GARCETTI MAYOR
DIRECTOR'S DETERMINATION
DENSITY BONUS AFFORDABLE HOUSING INCENTIVES
DETERMINATION -Density Bonus Affordable Housing Incentives
Case No. CEQA: Location:
Council District: Neighborhood Council Community Plan Area: Land Use Designation: Zone: Legal
Description:
Housing Replacement
With Assembly Bill 2222, applicants of Density Bonus projects filed
as of January 1, 2015 must demonstrate compliance with the
housing replacement provisions, which require replacement of
rental dwelling units that either exist at the time of application of a
Density Bonus project or have been vacated or demolished in the
five-year period preceding the application of the project. This
applies to all pre-existing units that have been subject to a recorded
covenant, ordinance, or law that restricts rents to levels affordable
to persons and families of lower or very low income; are subject to
any other form of rent or price control; or are occupied by Low or
Very Low Income Households. Pursuant to the Determination made
by the Housing and Community Investment Department (HCIDLA)
dated October 15, 2015, no units will need to be replaced with units
affordable to Low or Very Low Income Households as there were
no residential units on the property for the last five years. [Refer to
the Density Bonus Legislation Background section of this
determination for additional information.]
DENSITY BONUS LEGISLATION BACKGROUND
The California State Legislature has declared tnat "[t]he availability
of housing is of vital statewide importance," and has determined
that state and local governments have a responsibility to "make
adequate provision for the housing needs of all economic segments
of the community." Section §65580, subds. (a), (d). Section 65915
further provides that an applicant must agree to, and the
municipality must ensure, the "continued affordability of all Low and
2
Very Low Income units that qualified the applicanf' for the density
bonus.
With Senate Bill 1818 (2004), state law created a requirement that
local jurisdictions approve a density bonus and up to three
"concessions or incentives" for projects that include defined levels
of affordable housing in their projects. In response to this
requirement, the City created an ordinance that includes a menu of
incentives (referred to as "on-menu" incentives) comprised of eight
zoning adjustments that meet the definition of concessions or
incentives in state law (California Government Code Section
65915). The eight on-menu incentives allow for: 1) reducing
setbacks; 2) reducing lot coverage; 3) reducing lot width, 4)
increasing floor area ratio (FAR); 5) increasing height; 6) reducing
required open space; 7) allowing for an alternative density
calculation that includes streets/alley dedications; and 8) allowing
for "averaging" of FAR, density, parking or open space. In order to
grant approval of an on-menu incentive, the City utilizes the same
findings contained in state law.for the approval of incentives or
concessions.
California State Assembly Bill 2222 went into effect January
1,2015, and with that Density Bonus projects filed as of that date
must demonstrate compliance with the housing replacement
provisions which require replacement of rental dwelling units that
either exist at the time of application of a Density Bonus project, or
have been vacated or demolished in the five-year period preceding
the
The California State Legislature has declared that "[t]he availability
of ·housing is of vital statewide importance," and has determined
that state and local governments have a responsibility to "make
adequate provision for the housing needs of all economic segments
3
of the community." Section §65580, subds. (a), (d). Section 65915
further provides that an applicant must agree to, and the
municipality must ensure, the "continued affordability of all Low and
Very Low Income units that qualified the applicant" for the density
bonus.
With Senate Bill 1818 (2004), state law created a requirement that
local jurisdictions approve a density bonus and up to three
"concessions or incentives" for projects that include defined levels
of affordable housing in their projects. In response to this
requirement, the City created an ordi~ance that includes a menu of
incentives (referred to as "on-menu" incentives) comprised of eight
zoning adjustments that meet the definition of concessions or
incentives in state law (California Government Code Section
65915). The eight on-menu incentives allow for: 1) reducing
setbacks; 2) reducing lot coverage; 3) reducing lot width, 4)
increasing floor area ratio (FAR); 5) increasing height; 6) reducing
required open space; 7) allowing for an alternative density
calculation that includes streets/alley dedications; and 8) allowing
for "averaging" of FAR, density, parking or open space. In order to
grant approval of an on-menu incentive, the City utilizes the same
findings contained in state law for the approval of incentives or . concessions.
California State Assembly Bill 2222· went into
effect January 1,2015, and with that Density
Bonus projects filed as of that date must
demonstrate compliance with the housing
replacement provisions which require replacement
of rental dwelling units that either exist at the time
of application of a Density Bonus project, or have
been vacated or demolished in the five-year period
4
preceding the application of the project. This
applies to all pre-existing units that have been
subject to a recorded covenant, ordinance, or law
that restricts rents to levels affordable to persons
and families of lower or very low income; subject
to any other form of rent or price control (including
Rent Stabilization Ordinance); or is occupied by
Low or Very Low Income Households (i.e., income
levels less than 80 percent of the area median
income [AMI]). The replacement units must
be equivalent in size, type, or both and be
made available at affordable rent/cost to,
and occupied by, households of the same
or lower income category as those
meeting the occupancy criteria. Prior to
the issuance of any Director's
Determination for Density Bonus and
Affordable Housing Incentives, the
Housing and Community Investment
Department {HCIDLA) is responsible for
providing the Department of City
Planning, along with the applicant, a
determination letter addressing
5
replacement unit requirements for
individual projects. The City also requires a
Land Use Covenant recognizing the conditions be
filed with the County of Los Angeles prior to
granting a building permit on the project.
Assembly Bill 2222 also increases covenant restrictions from 30 to
55 years for projects approved after January 1,2015. This
determination letter reflects these 55 year covenant restrictions.
Under Government Code Section§ 65915(a), § 65915(d)(2)(C) and
§ 65915{d){3) the City of Los Angeles complies with the State
Density Bonus law by adopting deQsity bonus regulations and
procedures as codified in Section 12.22 A.25 of the Los Angeles
Municipal Code. Section 12.22 A.25 creates a procedure to waive
or modify zoning code standards which may prevent, preclude or
interfere with the effect of the density bonus by which the incentive
or concession is granted, including legislative body review. The
Ordinance must apply equally to all new residential development.
In exchange for setting aside a defined number of affordable
dwelling units within a development, applicants may request up to
three incentives in addition to the density bonus and parking relief
which are permitted by right. The incentives are deviations from the
City's development standards, thus providing greater relief from
regulatory constraints. Utilization of the Density Bonus/Affordable
Housing Incentives Program supersedes requirements of the Los
Angeles Municipal Code and underlying ordinances relative to
density, number of units, parking, and other requirements relative to
incentives, if requested.
For the purpose of clarifying the Covenant Subordination
Agreement between the City of Los Angeles and the United States
6
Department of Housing and Urban Development (HUD) note that
the covenant required in the Conditions of Approval herein shall
prevail unless pre-empted by State or Federal law.
Only an applicant or any owner or tenant of a property
abutting, across the street or alley from, or having ·a common
corner with the subject property can appeal this Density
Bonus Compliance Review Determination. Per the Density
Bonus Provision of State Law {Government Code Section §65915)
the Density Bonus increase in units above the base density zone
limits and the appurtenant parking reductions are not a
discretionary action and therefore cannot be appealed. Only the
requested incentives are appealable. Per Section 12.22 A.25 of the
LAMC, appeals of Density Bonus Compliance Review cases are
heard by the City Planning Commission.
JS:)
7
From:
Sent:
To:
Subject:
John Shepardson <shepardsonlaw@me.com >
.Wednesday, August 17, 20161:40 AM
Council
No. 40: Specific Plans
https://www.cacities.org/Resources-Documents/Member-Engagement/Professional-Departments/City-
Attorneys/Libra rv/2015/Land-U se-101-We bin a r-Pa per .aspx
So what is a Specific Plan and what is the point?
For some, the concept of a Specific Plan is far less familiar and its purpose is not entirely clear. There are no black and
white rules governing when a Specific Plan is required. Instead, a Specific Plan is a tool that public agencies and
developers use to achieve better specificity on the vision and development potential of a particular tract of land without
having to go through extensive site specific land use analysis and entitlement proceedings. It is "programmatic" in
nature and usually deals with major infrastructure, development and conservation standards and includes an
implementation program. See Gov. Code section 65451. Often, a specific plan will establish the
"look" and "feel" of what future development on the property will be and it
can provide a more clear and refined definition of the parameters in which development will be allowed and the
responsibilities for major infrastructure area developers will be expected to fulfill. Specific plans can be very useful to
agencies in setting real istic development expectations and signaling important big picture limitations or constraints
unique to a particular area; they can be very useful to developers in helping to size the potential and costs of
development. {emphasis added)
PRACT ICE NOTE : There still appear to be differing practices as to whether a developer's inclusionary housing triggers th!!
density bonuses or concessions under Govt. Code sections 65915 et seq. If there is still any ambiguity in your city's
ordinances, we recommend the city include inclusionary housing within density bonus calculations. See Latinos Unidos
Del Valle De Napa y Solano v. County of Napa, (2013) 217 Cal. App. 4tl'I 1160 (density bonus is mandatory even if the
project only includes affordable housing "involuntarily" to comply with a local ordinance).
John Shepardson
1
lementing State Density
us Law in Berkeley
November 13, 2014
City of Berkeley
Planning & Development
l Department
State Density Bonus Law
oAdopted in 1979, amended several times
• since
oMain purpose is to promote production of
affordable housing
o Applies only to projects with 5 or more
dwelling units (does not apply to group
living)
State Density Bonus Law
• 3 main concepts:
oDensity Bonus
o Concessions/Incentives
o Waivers/Reductions
•
I
~
·1 ' .
~
,,
.'
State Density Bonus Law
• Density Bonus = "a density increase
over the otherwise maximum
allowable residential density as of
the date of [project] application."
State Density Bonus Law
• Maxiinum allowable residential density
= "the density allowed under the zoning
ordinance and land use elenient· of the
general plan, or if a range of density is
pertnitted, the maxinium allowable
density for the specific zoning range and
land use elem.ent of the general plan
applicable to the project."
State Density Bonus Law
Minimum affordability required (without
bonus units):
• > 10% lower income (80% AMI)
• >5% VLI (50% AMI)
• Senior projects
• Condo project with >10% moderate
income (120% AMI)
State Density Bonus Law
Required bonus for projects with VLI units:
% VLI Units % Density Bonus
• 5 20
• 6 22.5
• 7 25
• 8 27.5
• 9 30 I t .: .
• 10 32.5
• 11 35 1 · 1 :
::
State Density Bonus Law
Required concessions/incentives for project
with VLI units (without bonus units):
% VLI Units
0
0
0
5
10
15
#of concessions/incentives
1
2
3
·J~
State Density Bonus Law
o Definition of "concession or incentive":
• "A reduction in site development standards or a
modification of zoning code requirements ...
including, but not limited to, a reduction in
setback and square footage requirements and
in the ratio of vehicular parking spaces ... "
• "Approval of mixed-use zoning ... "
• "Other regulatory incentives or concessions
proposed by the de·veloper or the city ... that
result in identifiable, financially sufficient, and
actual cost reductions."
State Density Bonus Law
o Examples of concessions awarded on
previous projects in Berkeley
• Additional ceiling height
• Reduced parking
• Reduced open space
• Ground floor commercial space (in what
would otherwise be an all-residential
building)
State Density Bonus Law
o Concessions must be granted unless City finds
that the requested concession:
• Is not required to provide for affordable housing
costs
• Would have a specific adverse impact, as defined in
65589.5, upon public health and safety or the
physical environment, or on any property listed on
the California Register of Historical Resources, and
for which there is no feasible mitigation without
rendering the project unaffordable
• Would be contrary to state or federal law '1 -
.
·•'
: ....
:•.
•.
..
State Density Bonus Law
Waivers or Reductions
o Basis: 65915(e)(l): "In no case may a city ... apply any
development standard that will have the effect of
physically precluding the construction of a
development ... at the densities or with the concessions
or incentives permitted by this section. An applicant
may submit to a city ... a proposal for the waiver or
reduction of development standards that will have
the effect of physically precluding [a project with]
the densities or concessions or incentives permitted
under this section ... "
State Density Bonus Law
Waivers or Reductions
o Waivers or reductions do not reduce or
increase the nuniber of concessions/incentives
-they inipleinent the required
concessions/incentives (and the density bonus)
•
"
'.
..
State Density Bonus Law
Recent arnendlilent (AB 2222):
o Affordability required for 55 years (previously
30 years)
o Existing affordable units (or affordable units
delilolished or vacated in last 5 years) lilust be
replaced as part of new project, at salile level
of affordability as existing
oApplies to applications subniitted by January
1,2015
Berkeley's Density Bonus Procedures:
o Affordable Housing Mitigation Fee
• Based on nexus study
• Applies to projects with 5 or niore new
rental -uni ts
• Requires fee of $28K per market-rate
unit
• Fee waived if 10% of total market-rate
units (including density bonus units)
are provided as VLI units -works out to
9.1 % of total
~ fl:
·~ ._v
Berkeley's Density Bonus Procedures:
o Density Bonus = a density increase over
the otherwise maximum allowable
residential density ... [65915.(f)]
o Dilelllllla: Most housing projects are
located in district without density
standards -what is "maximum allowable
density" in Berkeley?
Berkeley's .Density Bonus Procedures:
General Plan Density Standards
o The General Plan provides density ranges
but states that these are "for general
planning purposes" and "are not intenc::led
to be used as standards to deterllline the
lllaxiinulll allowable density on a specific
parcel," and that "allowable densities ...
are established in the more detailed and
specific Zoning Ordinance."
ZONING DISTRICTS WITH NO
DENSITY STANDARDS
Mixed-Use Projects
•Commercial
•Residential
Multi-Family
Residential Projects
Commercial Districts and
MU-R
Commercial Districts, R-3,
R-4, R-S, R-SMU
Four Basic Steps
1) Calculate the "Base Project"
2) Calculate Density Bonus
3) Review Concessions
4) Grant waivers/reductions of
development standards
I '. ..
·• ·'
i
Step 1: Define the Base Project
"Maximum Allowable Residential Densit:y"
~\.o~ '\.~c<(:.~
~\)'
Site of Proposed
Project
s~I?~
<..~~
~\.o~ '\.~c<(:.~
~\)'
Conditions:
1. Comply with all codes
(zoning, building,
fire, etc.)
2. Substantially
consistent with "by-
right" portion of
proposed project
(e.g. setbacks,·
commercial uses,
etc.)
•I
.
'
Step IA Result: Square Footage, Residential Use
Green = Residential
] Blue = Commercial
STEP lB: DETERMINE PROPOSED PROJECT'S
i\.VERAGE RESIDENTIAL UNIT SIZE
AIB C
A. Proposed Residential Area (sq. ft.)
B. Proposed Number of Units
C. Average Unit Size
·:·
Results Thus Far:
1.A Base Project Floor Area
l.B Average Unit Size
1.C Base Project Unit Count
2.A # of Affordable Units
% of Affordable Units
2.B % Granted for Density Bonus
2.C #of Density Bonus Units
Proposed Density Bonus Project
40,000 sq.
ft
2,000 sq. ft
20 units
Step 2: Define the Density Bonus Project
4 Affordable
·units = 20%
Total Possible
Units:
% Gfiedfor
Density Bonus
=35%
Density Bonus
Units = 7
r ·= '""' ---.---= ,..., --:~or-·· I "' .... .-. "' .. ~. . < ,.. ...
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-~i'-.. ---• te. I . I lJ// I
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~'t> I ~ ~r"'''J I ~_j/ I
.. __ -.i _____ r.<ll:.!Q:'ll&J-·
'".
Results:
l.A
1.B
l.C
2.A
2.B
2.C
Base Project Floor Area
Average Unit Size
Base Project Unit Count
#of Affordable Units
% of Affordable Units in Base Project
% Increase Granted for Density Bonus
#of Density Bonus Units
Proposed Density Bonus Project
40,000 sq.
ft
2,000 sq. ft
20 units
4 units
20%
35%
7 units
27 units
Concession Analysis
Units 20MR 18MR 25MR 25MR
2 BMR 3BMR 3BMR
Ceiling height 8 ft. 8 ft. 8 ft. 9 ft.
Yield (NOI/ 5.2% 4.5% 4.9% 5.2%
Costs)
Return on 3.5% 3.0% 3.3% 3.4%
Equity (Cash
Flow/ Cash·
Equity)
i
I
c::
0 ·.;::; u
::J ....
ti c:
ti
~ "' >. ci E ,..,
o ~
"O :;:-c:
:::::i ~
~
I !•I
~ .. i
V') ·.:.;
Q. ~
0 ' .. o -n
From: Kate Hlnsche '20 [mailto:khinsche@colgate.edu]
Sent: Thursday, July 27, 2017 9:27 AM
To: Council; Town Manager; Plann ing ·
Subject: Regarding the North 40
To the Town Council, Town Manager, and Community Planning Department:
My name is Kate Hinsche, a resident of 11 Kimble Avenue, and graduate of the Class of
2016 of LGHS. I attend Colgate University where I study Environmental Economics, and I write
to you out of concern regarding the North 40 development, chronic traffic, and the Los Gatos
Sustainability Plan . After sitting in on the North 40 Special Town Council Meeting, I realized that
my age group has been largely underrepresented in this discussion, and th is deeply troubled
me. The future of Los Gatos is being decided without any say from the people who will live,
work, and raise families here 20 years down the line.
First and foremost, I would like to say I am no stranger to the complications of commuter
and beach traffic in Los Gatos. Living in a downtown neighborhood has meant finding alternate
routes home on summer weekends and changing weekend routines. I've spent the summer
commuting to my internship in Menlo Park in peak commuter hours. Listening to the testimony
of the opponents of the North 40 development, I identified with their frustration . Their approach
to solving this problem is, however, bogus, ineffective, and rooted in a misunderstanding of the
problems facing Los Gatos and the greater Santa Clara County.
What the opponents of the North 40 fail to understand is how interconnected the housing
shortage and chronic traffic are in the Bay Area. San Francisco and Santa Clara County have
historically been developed with painfully low housing density, causing a severe housing
shortage and steep price increases following the tech boom. The critical mis~ke in the 20 years
since the first major growth in the local tech industry was the continuation of low-density, single
purpose developments. This has spurred urban sprawl, placing people further and further from
their jobs, transforming Silicon Valley into one giant commuter community, that just happens to
also have one of the largest economies in the United States. The success of the industry here
has, and will continue, to draw more and more people to the valley, increasing demand for
housing, increasing prices for housing, sending people further from their jobs, and increasing
problematic traffic. The root of the issue is not the number of people flocking to Los Gatos or the
Bay Area, and it's not the companies whose maps send traffic into our downtown streets . The
issue is low-density, single use development and insufficient public transportation.
Los Gatos is an atypical place, because it's a moderately sized town with an abnormally
high proportion of college educated residents, and a direct tie to the technology industry that is
18% of the United States' GDP. In other words, Los Gatos is wealthy and predominantly liberai
(69.7% Democrat). Looking at the political makeup of Los Gatos, as weH as the education level
of the residents, it is difficult to understand why the Town would be fighting a clearly beneficial
development that helps to address the community 's needs. However, with the knowledge that
the average family income in Los Gatos, according to the 201 O census, is nearly $160,000, it is
clear that the opposition of the Town residents and the 2016 refusal of the North 40 project
proposal are products of NIMBYism and classism. Efforts to maintain the exclusionary bubble of
wealth and elitism here are shrouded in cries to protect the town's "character." Whether the
stewards of this movement understand the reality of their work, it should not tolerated nor
enabled. Los Gatos has received all the benefits of the local industry, yet refuses to shelter any
of the burden incurred by this rapid growth. The Town seems to have a victim mentality, but it is
the Town's poor planning and development that have enabled this problem to balloon to this
extreme degree. It is foolish to think that we can shirk any responsibility in addressing these
matters, Los Gatos is no less a part of the problem than any of the many other cities that make
up the Bay A rea. I urge you to take charge of this issue, tum this problem into an opportunity,
and make our town the shining example of how the valley should be developed .
More than that, I urge you to address the concerns of the opponents of the North 40
project, regarding traffic, health and safety. Yes, the pollution in proximity to highways is
detrimental to health. Yes, the traffic increases frequency of collision . Yes, adding more people
means adding more cars, and subsequently more traffic. Stopping the North 40 project
addresses none of these problems . I have read the Los Gatos Sustainability Plan , and I believe
here lies the issue at the heart of everyone's concerns. In section 5 , titled "Implementation and
Monitoring," Measure TR-3, which calls for a public shuttle system with access to downtown,
residential neighborhoods, and commercial and corporate areas, has been determ ined to have
low cost-effectiveness, deeming it a project unworthy of pursuit.The perpetual traffic is also a
pricey option, when you consider the value of lost productive hours to traffic, the environmental
cost of additional GHG's being released into the atmosphere, and the consumer doll ars lost
when people can't reach local businesses . Los Gatos does have some public transportatio n,
VTA routes 48 and 49. These buses, unfortunately, have extremely limited access to residential
neighborhoods and only two stops in the primary commercial downtown reg ion , w ith few
connections to other VTA routes . Not only do these routes have limited scope, they run with
such irregularity it makes it impractical to use them. Stops are only visited once an hour, an
appalling rate considering effective transit has waits of no more than ten minutes. The only
mass transit service that addresses the beach traffic is the Highway 17 Express, which has no
stops in Los Gatos and limited service t imes. The majority of work ing Los Gatos residents are
commuters, and if the Town wants to address their needs, then it needs to work in tandem with
the other Bay Area communities to improve mass transit throughout the reg ion . Refusing to do
this means damning Los Gatos res idents to remain car-dependent and maintaining one of the
many economic barriers causing inequality in the Bay Area. Ensuring that every resident has
access to easy-to-use, inexpensive, public transit seems worth the price, considering the other
option is to continue the cycle of gridlocked traffic.
Copied below are links to articles from the New York Times cove ring the challenges Los
Gatos g rapples with, I hope you give t hem a read.
https://www.nvtimes.com/2015/08/02/us/bay-areas-disjointed-public-transit-network-
inspi res-a-call -for-harmony. html
https://www.nytimes.com/2016/07 /04/business/how-anti-growth-sentiment-reflected-in-
zon inq-laws-thwa rts-eq uality. html
All the best,
Kate Hinsche
From: susan buxton [mailto:ssbuxton@yahoo.com]
Sent: Thursday, July 27, 2017 10:04 AM
To: Marica Sayoc; Rob Rennie; BSpector; Steven Leonardis; Marcia Jensen
Cc: Joel Paulson; Robert Schultz
Subject: North 40
Dear Mayor, Council and Staff,
I have attached two documents produced by Leila M. Moncharsh, J.D., M.U.P., of the
Law Firm of Veneruso & Moncharsh for your reconsideration. Ms . Moncharsh was hired
by the community to create proposed findings. These two documents were submitted
prior to the Town's hearing , and to the surprise of many, were not included in the
findings provided by the Town. I realize that received these items before the June 20th
closed session, however, they were not included in the desk items.
I do understand that you have an incredible amount of material and testimony to
consider, but I would hope that you would review these findings. Ms . Moncharsh has
been a land use attorney for over 20 years, and also has a master's degree in urban
planning , and I feel it would irresponsible to ignore her expertise .
Thank you for your time and dedication to the Town of Los Gatos.
Sincerely,
Susan Buxton
Los Gatos, CA
DONNA M. VENERUSO (d . '09)
LEILAH. MONCHARSH
I
Los Gatos Town Council
110 E. Main Street
J .os Gatos, CA 95030
LAW OFFICES
VENERUSO & MONCHARSH
5101 RFDWOOD RD., S1E 10
OAKLAND, CALIFORNIA 94619
TELEPHONE (SlO) 482-0390
FACSltl4ILE(S10)482-0391
September 2, 2016
Re: Architecture and Site Am>lication S-13-090: VestinK Tentative Mm M-13-014-
North 40 Specific Plan Phase 1
Dear Mayor, Vice Mayor, and Council Members :
This is to request that the Town staff provide the draft findings to . the public no later than
noon on Monday, September S, 2016, even though it is a holiday. We are quite concerned that
staffs recommended findings be as inclusive as possible in the event that the developer chooses
to pursue litigation, challenging the Town Council's well-reasoned decision to deny the
application. We are seeking an opportunity to submit comments to your Council regarding those
draft fmdings.
While staff has done an incredible job with a very large and complicated project, it is
unlikely that a court would view this project the same way as staff and is more likely to view it
by applying the typical standard of review for land use cases. (See Desk Item H, p. 2.) The court
will not ~try this land use matter and decide what it would have done had it been allowed to
make the decision you made, but instead will look carefully at your Council's findings and
whether they are supported by evidence jn the record. The court's
:function is simply to decide whether the city officials considered the applicable
policies and the extent to which the proposed project conforms with those
policies, whether the city officials made appropriate findings on this issue, and
whether those findings are supported by substantial evidence.
(Naraghi Lakes Neighborhood Preservation .Association v. City of Modesto (July 1, 2016)
<http://www.courts.ca.gov/opinions/documents/F071768.PDF>, p. 10 -citations and quotation
marks omitted· cited in my letter, dated August 30, 2016.)
Therefore, your findings are extremely important and should be given the utmost attention with
an understanding of how the court will process them.
Furthermore, contrary to the staff report, there is no legal basis in statutes or case law
supporting staff's position that a court would view low-income seniors as half of one category
(low-income) and half of the other category (seniors) in determining whether the project qualified
for any density bonus. The human beings living in the senior housing are not divisible, the policy
Page2
behind the 4ensity bonus law is intended to benefit them, and no reasonable judge would tum
that policy on its head by faulting your Council for refusing to subject seniors to living conditions
with no accessibility to basic resources. It is also highly unlikely that a court would think your
Council abused its discretion by refusing to accept a promise of future accessible resomces in
project site retail establishments that are not part of the project, have no conditions pf approval
requiring them, and that may never come into existence. Accordingly, your findings should
include that the project does not provide accessibility to necessary resources for low-income
seniors, the only population included in the project.
Moreover, even if the Town viewed the project as serving low-inctome adults, and could
divorce the "senior" description, we would be talking about very different issues than with senior
low-income adults. Instead, we would be discussing the size of the units for low-income families
tm.der the state Fair Housing laws and substantially more parking than is included in the current
project. Therefore, the findings need to include that your Council viewed the underprivileged
population as low-income seniors and did not consider other categories such as low-income
families.
Mayor Spector handled staffs claim that various General Plan and Specific Plan policies
were "subjective, not objective." We contended that this test does applies when there is a finding
that the project is in compliance with the General Plan and Specific Plan, not when it is
inconsistent with them, and we cited relevant parts of the applicable code. Your ColUlcil should
make sure to include in its findings all of the .features of the project that are inconsistent with
these two documents and specify all of the relevant policies.
It is not true, as staff contends, that your Council may only consider the Specific Plan
because it expressly relies on the General Plan. The Specific Plan contains the following
language:
The purpose of the North 40 Specific Plan is to implement the Town of Los Gatos
General Plan and to comprehensively plan for future development in the Specific
Plan Area. The Specific Plan will be a regulatory tool that the Town of Los Gatos
will use to guide future development. While the General Plan is the primary guide
for growth and development in Los Gatos, the Specific Plan focuses on the unique
characteristics of the Specific Plan Area and customizes the planning process and
land use regulations to reflect the Town Vision Statement and Guiding Principles
for this area.
(Specific Plan, Introduction, p. 1.)
The Town housing element is in the General Plan, not the Specific Plan. While it is true that if
there is a conflict between the General Plan and the Specific Plan, the latter controls . We did not
notice conflicts between these two plans in the context of the proposed project. In the findings,
your Council should include as many goals and policies from both documents as you decide
apply to the proposed project. (We did not include in our letter any policies that were purely
advisory, normally identified by the word "should.")
Page3
.
There are bills before the state legislature that deal with affordable housing and more may
be considered in 2017 . There also have been amendments to existing density bonus laws over the
last few years. Your findings, however, should not be guided by speculation about future
legislation or by horror stories concerning courts. After 3 8 years of law practice, most of it spent
in courtrooms, I certainly have run into judges who were Ul)J'easonable, illogical, and careless.
However, the vast majority of judges are competent, hard-working people who try their very best
to be fair to litigants. Santa Clara Superior Court has an excellent reputation for highly skilled
judges. While there are risks in any litigation, I would not expect that a Santa Clara judge hearing
this matter will come down hard on a town COlDlCil of five people who have given so much
attention to a development project as your Council. The atmosphere of changing laws, new laws,
poorly drafted statutes, and politics pushing high density housing have been just a few of the
challenges facing your Council. Judges understand this kind of quagmire facing local decision-
makers and are not likely to usurp your role or handle the case punitively.
At this point, the best service your Council can provide to the citizens of Los Gatos is to
carefully go over the findings and make sure that they are clear and complete for the court's
consideration. Helping the court fully understand your thinking process through your findings is
the best road towards a good result.
1bank you for considering our comments.
LHM:lm
cc : Ms. Dodson
Very truly yours,
~~~~.~
Leila H. Moncharsh, J.D., M.U.P .
Veneruso & Moncharsh
DONNA M . VENERUSO (d. '09)
LEILAH. MONCHAR.SH
Los Gatos Town Council
110 E. Main Street
Los Gatos, CA 95030
LAW OFFICES
VENERUSO llr. MONCHARSH
5707 REDWOOD RD., STE 10
OAKLAND, CALIFORNIA 94619
TELEPHONE (510) 482-0390
FACSIMILE (510) 482-0391
August JO, 2016
Re: Architecture and Site A.wlication S-13-090 : Vesting Tentative Map M-13-014-
North 40 Specific Plan Phase 1
Dear Mayor, Vice Mayor, and Council Members:
Our client, Barbara Dodson, requested that we submit comments to yom Council in
response to the Applicant's attorney letter of July 7, 2016. Specifically, she requested that we
address the affordable housing legal issues and whether the proposed project complies with the
Specific Plan. I am a land use attorney with a master's degree in urban planning. Over the last 20
years, I have occasionally analyzed projects designed for senior housing and have often analyzed
projects for consistency with general plans. I came to four conclusions:
1. There is insufficient evidence in the record to support a finding that the
Applicant is providing senior housing because the proposed housing does not
provide accessibility
2. Because the proposed project site, ~thout a shuttle service, lacks accessibility
to necessary resources for low-income seniors, and because the Applicant has not
proposed any other housing that qualifies for density bonuses, the Council should
deny the project application
3. The proposed project is inconsistent with the General Plan. and the Specific
Plan in ways described by the PJanning Commission. Further, because the
Applicant is not providing senior housing with necessary accessibility, the project
fails to satisfy the Town's "unmet needs" as required by the Specific Plan
4. The threats of a lawsuit by the Applicant are without basis, and overlook the
standard of review that the superior court would apply to its lawsuit
1. The Proposed Senior Portion of the Project Does Not Comply with the
Legislature's Policies Defining "Senior Housing"
The proposed project includes senior housing with 49 units for low-income seniors and 1
unit for a manager. The Applicant asserts that it is entitled to the density level in its entire project
"by righf' and that the Town Council has no discretion and therefore, must grant the requested
permits.
Page2
It is true that in the event the Applicant provides low-income senior housing in its project,
it is entitled to density bonuses.1 The state policy defining "senior housing" is found in the state
density bonus statute2 and in Civil Code section 51.3, a copy of which is attached to my letter as
Exhibit A for your convenience.
(a) The Legislature finds and declares that this section is essential to establish and
preserve specially designed accessible housing for senior citizens. There are
senior citizens who need special living environments and services, and find that
there is an inadequate supply of this type of housing in the state.
The policy requires that for housing to qualify as "senior housing," it needs to provide
accessibility, a special living environment, and services that will accommodate seniors. For
example, two floors of apartment units in the middle of a 44-acre lot with nothing around it
would not meet the need for senior housing. Similarly, it would be difficult for the Council to
conclude that a homeless shelter would qualify, either.
At the Town Council hearing on August 11, 2016, Council member Sayoc questioned
whether the seniors would be isolated over the ground floor market hall. Her questions were
directly on point with the state's policy concerning accessibility of housing and services for
seniors. However, as we reviewed the record it was very difficult to find specifics from the
documents and statements made during hearings by Eden's representative. The explanations
consisted of vague generali7.ations-Eden would provide "services" or "would use its network" or
would ''provide a stimulating program for the seniors."
The lack of specific information about the accessibility and services that are contemplated
for the senior population was perplexing because the site is not one that in our experience would
be developed for senior housing. Generally, municipalities encourage developers to place senior
housing along transit-oriented corridors where seniors can fully participate in their communities.
The General Plan Transportation Element for Los Gatos is consistent with the practice of
requiring public transit for certain population groups.3 None of the material or statements by
Eden answered the question whether the seniors living above the market hall would be able to
meet daily needs such as obtaining food, going to hospital appointments, participating in the
l Government Code section 65915, subdivision (bXI)(C). We widerstand that the density bonus was calculated
based on the category for low-income persons.
2 Government Code section 65915, subdivision (b)(C)
3 See Policy TRA-8.4: Coordinate with appropriate agencies to provide transit service in the Town for seniors ...
low income people, the physically disabled, and other groups with special needs.
Page3
Town's senior centers, accessing hairdressing services, or in other ways have services available
to them. The only clear statement was that neither the developer nor Eden would be providing
any shuttle service. While Civil Code section 51.3 does not require extraordinary or lavish
services, some services are essential to conform to the state's policy and definition of"senior
housing."
To analyze the accessibility issue, Ms. Barbara Dodson went to the perimeter of the
proposed project site (since unfortunately citizens are not allowed into the project site since it is
considered private property) and imagined she was a "senior" living in very low-income housing.
She then carefully researched the claim made by Eden that there would be "[e]asy walkability to
goods and services complet[ing] the ease of what could otherwise be a difficult transition. ,,4 It
became i.mmediately apparent that there were inadequate resources within walking distance,
especially for those seniors with any disability or those seniors co-residing with disabled
children. 5 The roadways are not safe, especially in crossing at intersections and the goods and
services are too remote from the project site.
Ms. Dodson then turned her attention to bus service, measured the distance to the nearest
essential services, and attempted to locate transit service. She found that while it would be
possible to find a bus stop in front of the project site, when the bus arrived back at the bus stop
across from the project site, there would be no crosswalk. TherCfore, the seniors would need to
go to intersections where they would have to cross many lanes of heavy traffic. Ms. Dodson also
evaluated availability of other transportation resources by calling the services, which also proved
unsatisfactory. She provides the outcome of her investigation in her letter, dated August 28,
2016.
The lack of accessibility and services in this senior housing project was not a topic that
only Ms. Dodson noticed. Tom Picraux, the chairperson for the Los Gatos Community and
Senior Services Commission spoke before the Planning Commission on July 12, 2016.6 He
raised the very same issue of whether the developer or Eden would be required to provide the
4 March 30, 2016 Planning Commission hearing and repeated in Ms. Dotson's letter delivered to the Council on
August 29, 2016.
s A "qualified pennanent resident" who would be eligible to live in the senior housing above the market hall would
include a disabled person who is a child or granchild of the senior citizen and needs to live with the senior. (Civil
Code section 51.3, subdivision (b)(J).
6 His comments begin on the video around 5 :54.
Page4
type of services necessary for very low-income seniors . Specifically, he mentioned healthcare,
nutrition, and case management, "or will this be something that falls on the backs of the Town?"
He made it clear that his commission has attempted to meet these needs for Los Gatos seniors,
but implied that the services for the North Forty very low-come senior residents needed to be
provided by Eden.
During the August 11, 2016 hearing before the Town Council, a question was asked
about how the developer and Eden would handle ventilation in the senior housing above the
market hall. The answer, not surprisingly, was that air conditioning and ventilation units (HV AC)
would be installed and located on the roof. Yet, we do not see anything in the proposed
conditions regarding maintenance of these essential units which can be very expensive to
maintain over time. This is a necessary service that very low-income seniors cannot obtain on
their own.
Even something so simple as assuring that seniors waiting for a bus are provided with
cover during winter weather has not been addressed, although it is a requirement in the General
Plan. TRA-8.8 states that where feasible and appropriate
all new projects that are near existing transit services and/or destinations such as
shopping areas, community centers, senior housing, and medical facilities shall be
required to provide covered and partially enclosed shelters consistent with Santa
Clara Valley Transportation Authority (VTA) Standards that are adequate to
buffer wind and rain, and have at least one bench at each public transit stop.
The General Plan also requires that the Town make "land use decisions that encourage walking,
bicycling, and public transit use.n (TRA-9.1 -emphasis added.)
The overall picture of the senior housing component is that little to no planning went into
it other than developers seizing an opportunity to use disadvantaged seniors as a way to greatly
increase the net return on their investment. That was never part of the Legislature's policy or
intent behind the density bonus benefits. The developer and Eden have not offered evidence that
the project includes "accessible housing for senior citizens" and that it provides them with the
"the special living environments and services" that they need. (Civil Code section 51.3,
subdivision (a).) In reviewing the recent letter from the Department of Housing, it is obvious that
this agency was unaware of the accessibility problems.
2. The Council Should Deny the Project Application
As shown in section 1, above, the Applicant was not entitled to a density bonus because
its project does not meet the definition of "senior housing" .in Civil Code section 51 .3( a). As an
additional reason for why the Town Council should deny the project, we refer the Council to the
state code section allowing it to deny projects benefiting from density bonuses under
Pages
circumscribed situations. 7 (I'he staff reports contain an abbrievated version of the state code,
presumably based on the Town's ordinance implementing the state density bonus law. However,
any conflict between the Town's imple~enting ordinance and the state density bonus law could
cause a court to find fault with your Council. Therefore, the better practice is to use the state
density bonus law itself when deciding whether to grant or deny a density bonus to a developer.)
The state law allows your Council to deny the application, which includes housing for
very low-income seniors if three prongs are met: (1) The project would have a specific adverse
impact on health or safety; (2) there is no feasible method to satisfactorily mitigate or avoid the
specific impact without rendering the project unaffordable for the seniors or financially
infeasible; and (3) the specific adverse impact is a significant, quantifiable, direct, and
unavoidable impact, "based on objective, identified written public health or safety standards,
policies, or conditions as they existed on the date the application was deemed complete." Here is
the entire text of the criteria your Council is required to follow:
The development project ... as proposed would have a specific, adverse impact
upon the public health or safety, and there is no feasible method to satisfactorily
mitigate or avoid the specific adverse impact without rendering the development
unaffordable to low and moderate-income households or rendering the
development of the emergency shelter financially infeasible. As used in this
paragraph, a "specific, adverse impacf' means a significant, quantifiable, direct,
and unavoidable impact, based on objective, identified written public health or
safety standards, policies, or conditions as they existed on the date the application
was deemed complete. Inconsistency with the zoning ordinanee or general plan
land use designation shall not constitute a specific, adverse impact upon the public
health or safety. 1
The evidence in the record supports all three prongs of the test for denial of the density
bonus . (1) The senior housing component of the project would have an adverse impact on health
and safety for the public. The seniors living in the project would be part of the ''the public.,, The
isolation of the seniors above the market hall with no provisions for them to obtain necessary
goods and services adversely affects their health and safety. The failure in the conditions of
approval to require a shuttle service or maintenance of the ventilation system is also a threat to
their health. Requiring them to use public transportation that would involve crossing multiple
1 See Government Code section 65589.5, attached as Exhibit B.
s Government Code section 65589.5, subdivision (d)(2).
Page6
lanes of heavy traffic is an adverse impact on their safety and on the safety of drivers attempting
to deal with seniors slowly walking through many lanes of traffic.
(2) There is no feasible way to satisfactorily mitigate the adverse impacts listed in section
l, above, without rendering the project unaffordable for the seniors or financially infeasible for
the developer for two reasons: a. there is no way to move the buses around or change the
numerous lanes of traffic into fewer lanes. A bridge over so many lanes of traffic so that the
seniors could safely get across the street from the bus stop to the project would not be financially
feasible. Nor is it likely seniors, especially those who are disabled, would be able to use the
bridge without an elevator at both ends. b. Through its attorney the developer has made it clear
that it is llllwilling to do anything further with this project other than discuss the color of the paint
on the buildings or make minor changes that can be approved by the Town's planner. It has
entered into a streamlining agreement with September 7, 2016 as the final date for the Town's
decision and after that, it prefers to sue the Town rather than mitigate the health and safety issues.
(3).The adverse impacts are significant because they deprive the seniors of the ability to
access necessary goods and services, and ability to participate in the greater community outside
the project units. It is quantifiable and direct because any planner can verify the iriformation in
Ms. Dodson's letter. The impacts she describes are also objectively verifiable by a Town traffic
engineer. Also, a Town engineer can objectively verify that the senior housing requires a
ventilation system and there is no provision in the conditions of approval for maintenance of it.
The impacts described in section 1, above violate the state policy for "accessible" senior housing
with adequate services under Civil Code section 5l.3(a). The impacts described in section 1 are
based on the roadway and public transportation conditions that existed when the developer's
application was deemed complete.
Therefore, the Town should deny the project application because it necessarily includes
"adverse specific impacts" that cannot be mitigated.
3. The Town Council Should Deny the Permit Application Because the
Project Is Inconsistent with the General Plan and the Specific Plan
In its July 7, 2015 letter, the Applicant's attorneys contend that the Town cannot legally
deny its project application since the pf<?ject qualifies for the density bonus. Instead, it must
follow the directives of Government Code section 65589 .5, subdivision G), which assmnes that
the project complies with the Town's General Plan and Specific Plan. Of course, that has been
the Applicant's position all along~that it has developed a project that not only qualifies for a
density bonus, but also complies with the General Plan and Specific Plan. The Planning
Commission, after three days of lengthy hearings, disagreed. So, do we. The Town Council
Page7
should reject the approach that it cannot deny the application based on inconsistency with its
General Plan and Specific Plan for several reasons:
AB discussed in section 1, above, the proposed project is not entitled to a density
bonus because it fails to provide senior housing as defined in Government Code
section 51.3, subdivision (a). The evidence in the record demonstrates that
accessibility to necessary resomces for the very low.income seniors in the senior
housing would be inadequate, the senior housing does not constitute a liveable
environment for seniors, and that the Applicant refuses to do anything to mitigate
the accessibility problems, instead preferring to pmsue litigation
The Town is legally required to deny projects that are inconsistent with its
General Plan or its Specific Plan. The Legislative policies requiring municipalities
to develop and follow General Plans must be harmonized with the density bonus
policy, especially under the facts here where the housing does not provide
accessibility for seniors. Under Government Code section 65589.S, subdiVision
(d)(5), the Town may deny the project for inconsistency with the General and
Specific Plans. None of the exceptions in this subdivision apply to this project or
override the requirement in Government Code section 65589 that the local agency
comply with state policies, other than those promulgated to encourage affordable
housing
Even under the standard that the Applicant relies upon, contained in Government
Code section 65589.5, subdivision G), the Town can and should legally deny the
application for the permits
We were unable to find a legal case where a density bonus was sought solely for the
purpose of overriding the local agency's General Plan to increase market~rate housing, and was
unrelated to improving the lives of underprivileged citizens. However, Carson Harbor Village,
LTD v. City of Carson (2015) 23 9 Cal.App.4th 56 (Carson )9 is instructive. There, the superior
comt considered the denial of a permit application to convert a mobile home park from a rental
facility into resident·owned lots. The opponents claimed that the application was a "sham," as
might be suggested here, designed to get around the City's General Plan and ordinances. In
Carson, the application was allegedly designed to get around local rent control ordinances. (Id at
pp. 60·61.) At first, the court of appeal in Carson ruled that the City could not deny the
application based on inconsistencies between the proposed project and the General Plan, but then
reversed itself. The City had denied the permit since the proposed conversion
9 Attached as Exhibit C.
Page8
was not bona fide because it was unlikely that many of the low income tenants
living in the park would agree to buy their lots, the tenant survey imp.roperly
gauged support for the incentives, not the conversion, and the required tenant
impact report did not include infonnation requested about the wetlands and the
displacement effect on current tenants. The City alternatively denied the
application because it was inconsistent with its general plan's affordable housing
and open space elements and posed a risk to the wetlands and its wildlife.
(§ 66474, subds. (b) & (e).)
(Carson, supra, at p. 61.)
The superior court ruled against the City on the bona fide issue and held that inconsistency with a
local agency's General Plan was an improper ground to deny the proposed conversion. Further,
there was no evidence the proposal was inconsistent with the City's General Plan. (Carson,
supra, at p. 62.) (Sound familiar with the facts now before the Town Council?)
The court of appeal reversed the superior court, first noting the priority that local agencies
must give to th~ir General Plan, a point that here Mayor Spector amply demonstrated during the
hearing of August 16, 2016. It is worth quoting the court's statement, which contains ample
citations to California Supreme Court cases. We have left out these citations to make the
statement more readable :
All local governments must have a comprehensive and long-term general plan for
the development of land within their boundaries. Acting much like a land-use
constitution, it is the basic charter governing the direction of future land use
within a locality. The propriety of virtually any local land use decision depends
upon its consistency with the general plan.
(Carson, supra, at p. 62 -citations and quotation marks omitted.)
The court went on to discuss all of the competing legislative policies involved in the matter. As
here, the proposed conversion implicated the Subdivision Map Act, which was "designed to
promote orderly community developments ... "Like the Density Bonus Law, the Map Act
included provisions for denying the application for the map, including "inconsistency with an
applicable general plan." Other competing policies involved the wetlands under the Coastal Act
that conflicted with the policies of the Mello Act which included that "[t]he availability of
housing is of vital statewide importance;" and "decent housing and a suitable living environment
for every Californian ... is a priority of the highest order." (Carson, supra, at p. 67.)
Page9
Furthermore, quoting a California Supreme Court case10 the comt noted that the Map Act
includes a provision that nothing in the Act affects a local agency's obligations to comply with
applicable state and federal laws. (Carson, supra, at p. 67.) Again relying on the Supreme
Court's directives, the court of appeal concluded that the Map Act was intended to operate in
conjunction with other state laws and that the lower court had been required to "harmonize" the
competing state policies and to recqncile inconsistencies between "statutory provisions wherever
possible and, absent an express declaration of legislative intent, to avoid implied repeals unless
the conflicting provisions were fatally irreconcilable and inconsistent." In the remainder of the
Carson case, the court found sufficient evidence in the record to support the City's conclusion
that the proposed conversion was inconsistent with the General Plan. (Carson, supra, at pp. 71-
80.)
Here, the Applicant overlooks the very language that allows the Town Council to
consider other state policies, including the state law requirement that it follow its own General
and Specific Plans. Instead, the Applicant just relies on Government Code section 65589.5.
However, it overlooks the preceding applicable code section-65589.11 The relevant subdivisions
state:
§ 65589. Construction of article:
(a) Nothing in this article shall require a city, county, or city and county to do any
of the following: ...
( c) Nothing in this article shall be construed to be a grant of authority or a repeal
of any authority which may exist of a local govqnm.ent with respect to measures
that may be undertaken or required by a local government to be undertaken to
implement the housing element of the local general plan.
( d) The provisions of this article shall be construed consistent with, and in
promotion of, the statewide goal of a sufficient supply of decent housing to meet
the needs of all Californians.
Here, the "elephant in the room'' is inteipreting Government Code section 65589.5 as to
whether the Town can legally deny the permits given inconsistency with the General Plan. We
agree with the Town's outside counsel-the section that seemingly allows the Town to deny the
10 Pacific Palisades Bowl Mobile Estates, UC v. City of Los Angeles (2012) 55 Cal.4th 783.)
11 A copy is attached as Exhibit D. ·
Page 10
permits on that basis is murky at best and without any legal precedent. 12 We offer some
additional comments and are willing to take a stab at a prediction, based on the discussion above
concerning competing policies.
To review for yom Council: Governm~nt Code section 65589.5, subdivision (d) does not
allow a local agency to disapprove a housing development project unless it ''makes written
findings, based upon substantial evidence in the record, as to one of the following:'', which is
then followed by five instances when a local agency may deny permits for a proposed project that
contains affordable housing for very low-income households. Government Code section 65589.5,
subdivision ( dX5) allows the Town to deny the permits if it finds the that the proposed project is
"inconsistent with ... the j~sdiction's ... general plan land use designation as specified in any
element of the general plan ... '' However, this subdivision is followed by subdivision (d)(S)(A),
which does not allow the Town to deny or conditionally disapprove a housing development
project for very low-income people if the proposed project site has been identified in the Town's
housing element as one suitable or available for very low-income households.
The logical next step is to look at the definition of housing development project and as
your outside attorney explains, the definition is problematic under subdivision (h)(B) as to what
constitutes "Mixed-use developments." We would add that subdivision (h)(3) defines housing/or
very low-income households as "at least 20 percent of the total units shall be sold or rented to
lower income households ... " The proposed project does not meet that definition and arguably
does not meet the definition of a Mixed-use development, either.
Moreover, we note that under the code section, the test for a local agency to deny a permit
is more relaxed if the proposed development complies with the General Plan than it is if it does
not comply with it. Government Code section 65589 .5, subdivision G) only requires that if a
local agency decides to deny a pennit even though the proposed project is consistent with the
General Plan, it must make findings that the project would have a specific, adverse impact on
public health and safety and that there is no feasible method to satisfactorily mitigate or avoid
that impact. Basically, the test in subdivision G) is the same as in subdivision (d)(2), which we
describe in section 1, above, and which does not contain nearly as many qualifiers for a local
agency to deny a project as subdivision (dXSXA). The test for whether a local agency can
disapprove a housing project should be more stringent if the proposal is inconsistent with the
General Plan than if it is consistent with it. Instead, if subdivision (dXS)(A) applies, the test is
less stringent to the project here that inconsistent with the General and Specific Plans .
12 See, letter of outside counsel, attachment 37, pp . 7-8.
Page 11
Our prediction is that the courts will not struggle with sorting out the pitiful language in
Government Code section 65589.5, but instead will revert to the time-honored practice of
"harmonizing" the state's polides between a local agency's obligation to enforce its general plan
and its oblig&.tion to provide affordable housing to very low-income seniors. Most likely, courts
will continue to require that local agencies grapple with these competing policies, make a
decision about granting or denying permits, write up the findings, and make sure that there is
substantial evidence to support them!
Accordingly, the Town Council should find that substantial evidence supports that the
proposed project is first, inconsistent with the state policies to promote accessible, "decent
housing" to meet the needs of seniors and second, that in other regards it is inconsistent with both
the General Plan and the Specific Plan.
There is adequate record that allows the Town Council to find that the proposed project is
inconsistent with its General Plan and Specific Plan. As discussed in section 4, infra, the court
expects the Town Council to utilize its goals and policies, keeping in mind that the General Plan
and Specific Plan Will contain a mixture of competing policies. It is up to the Town Council to
look at the proposed project and decide which policies to apply to it.
The recommendations from the Planning Commission were sound, with particular
mention of the work completed by Commissioner Hudes. He not only participated in drafting the
Specific Plan, but verified facts and confronted the developer with questions before arriving at
what the commission believed was a fair resolution. For example, one of the "Guiding
Principles" in the Specific Plan was that the "The North 40 will embrace hillside views, trees,
and open space."13 He went to the site and looked for himself at the story poles and the plans.
Commissioner Hudes then gave the developer's expert an opportunity to rebut the concern that
the proposed project was inconsistent with Policy 01, p. 2-11-"Promote and protect views of
hillsides and scenic resources." He explained why he disagreed wi1h the ex~ giving the
developer another opportunity to respond. Eventually, the commission listed this inconsistency as
one of its reasons for the recommendation to deny the permit.
The Planning Commission determined that the proposed project was inconsistent with
Policy 3.2.6, p. 3-8 -"Provide architectural elements, detailing and ornament to add richness and
variety to building facades and facade depth and detail.'' This policy was also part of the Town's
"Guiding Principles" and required the project to "look and feel like Los Gatos." There was quite
a bit of debate about whether the vision was too subjective and not objective enough to qualify
for an inconsistency finding. However, as discussed below in section 4, the Specific Plan can
13 Specific Plan, p. 1-1.
Page 12
enforce its vision and policies. The community came to hearings with many photographs
demonstrating the architectural elements consistent with Los Gatos. The record amply
demonstrated that the proposed project was "Anywhere Suburbia, U.S.A." as opposed to the look
and feel that should have been accomplished by following Policy 3.2.6 and the vision.
The record also supports a finding that the proposed development was inconsistent with
Policy LU4, p. 2-2-"Commercial development within the Specific Plan Area shall be
complementary to Downtown through careful control of uses and pennitted square footage ... "
Policy LU6, p. 2-2 required that the commercial uses in the North 40 serve the residents and
adjacent neighborhoods. There were several downtown commercial owners who explained that
the proposed project threatened to cau8e leakage from the downtown into the North 40, crippling
both commercial areas of Los Gatos. Commissioner Hudes inquired about the Specific Plan's
requirement that the developer obtain an Economic hnpact Study14 to address this issue and the
developer produced the author of that report. The commission concluded that the study was
"flawed" because it did not discuss the key issue of leakage from the Downtown commercial
uses.
Another Guiding Principle was that the North 40 will address the Town's residential
unmet needs .1s As shown in section 1, above, it does not meet the needs of very low-income
seniors because necessary resources for the very low-income seniors would be inaccessible. It
also did not meet the Town 's needs for housing that would accommodate market-rate seniors
because the entire project contains multi-story buildings with no elevators, other than in the very
low-income senior housing over the market hall.16
The proposed project is also inconsistent with the General Plan Housing Element as it
relates to seniors and very low-income seniors. Goal HOU-4 on page 36 states "Ensure that all
persons have equal access to housing opportunities. Policy HOU-4.1 states, "Support housing
programs that protect individuals' rights." Because of the inaccessibility issues described above
in section 1, the proposed project is inconsistent with several other General Plan Goals and
policies on pages 39-40: Goal HOU-5 "Retain and expand affordable housing opportunities for
seniors." Policy HOU-5.2 states, "Allow and encourage small-scale living facilities of two to six
seniors that may include nursing care services that can be integrated into existing neighborhoods
14 Specific Plan 2.4.2, p. 2-6
is Specific Plan, p. 1-1
16 Specific Plan, p. C-2
Page 13
as infill development." And, Policy HOU-5.3 requires: .. Work with existing senior lifestyle living
and assisted living facilities in Los Gatos, and support the development of new senior housing
that includes continuum of care facilities within the Town."
4. The Applicant's Threat of A Lawsuit Is Greatly Exaggerated
We agree with the Town's outside lawyer that the Town should follow the directives of
Government Code section 65589.5 regarding granting or denying permits for proposed affordable
housing. And its list of pending or past cases in superior court does contain a few examples
where the court took measures to coITCCt problems with local agencies not complying with one or
another of its requirements. However, the list also shows that past litigation bas followed the
typical pattern of courts leaving much of the decision-making to local agencies. The court does
not substitute its judgment for that of the local agency by second-guessing whether a project is
consistent or inconsistent with a General Plan. That decision is left up to the local agency with a
presumption that its decision is coITCCt.
On August 16, 2016, Council member Jensen presented a slide show to demonstrate that
the intent of those who drafted the Specific Plan and the Council that approved it was consistent
with various aspects of the proposed project. However, that is not the test utilized by the court.
Instead, it applies the substantial evidence test and resolves
reasonable doubts in favor of the City's finding and decision. (Ibid.) The essential
inquiry is whether the City's finding of consistency with the General Plan was
reasonable based on the evidence in the record. As long as the City reasonably
could have made a determination of consistency, the City's decision must be
upheld, regardless of whether we would have made that determination in the first
instance. Generally speaking, the determination that a project is consistent with a
city's general plan will be reversed only if the evidence was such that no
reasonable person could have reached the same conclusion.
(Naraghi Lakes Neighborhood Preservation Association v. City of Modesto (July 1, 2016)
<http://www.courts.ca.gov/opinions/documents/F071768.PDF>, p. 10 -citations and quotation
marks omitted (Naraghi).)11
The same standard of review applies when a local agency determines that a proposed project is
inconsistent with its General or Specific Plan. (Carson, supra, 239 Cal.App.4th 56, at p. 62 [" ...
[W]c examine the entire record to determine whether the City's findings were supported by
17 A copy of this recent decision is attached as Exhibit E.
Page 14
substantial evidence. [ ] However, we begin with the presumption that the findings are supported
by substantial evidence. It is the [Plaintiff's] burden to prove otherwise.'']
Furthermore, the court does not go back in time and look at the intent of the drafters and
decision-makers of a General Plan to consider whether its land use decision should be upheld .
Instead, it evaluates the proposed project in light of the General Plan's stated policies and goals.
"[A] city's land use decisions must be consistent with the policies expressed in its general plan."
(Napa Citizens for Honest Government v. Napa County Board o/Supervisors (2001) 91
Cal.App.4th 342, 378.)
After determining whether the proposed project is consistent or inconsistent with the
General Plan, the local age~ then prepares written findings. The court does not apply its own
preferences as to whether the local agency should have granted a proposed project.
Once a general plan is in place, it is the province of elected city officials to
examine the specifics of a proposed project to determine whether it would be "in
harmony" with the policies stated in the plan. It is, emphatically, not the role of
the courts to micromanage these development decisions. Our function is simply to
decide whether the city officials considered the applicable policies and the extent
to which the proposed project conforms with those policies, whether the city
officials made appropriate findings on this issue, and whether those :findings are
supported by substantial evidence.
(Naraghi, supra, at p. 10.)
Council member Rennie expressed concern that the court might order the Town Council
to approve the proposed project "as is" and deprive the Council of any further control over it. The
statute does not provide for that potential result unless the Town Council acts in "bad faith." The
code defines "bad faith" as meaning "an action that is frivolous or otherwise entirely without
merit." (Govenunent Code section 65589.5, subdivision (I).)
As shown above, the denial of the permits here would most likely be upheld by the court
and there is ample evidence in the record to support the findings supporting that decision.
I
I
I
I
I
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Page 15
Thank you for considering our comments.
LHM:lm
cc: Ms. Dodson
Very truly yours,
~4::~~
Leila H. Moncbarsh, J.D., M.U.P .
Venetuso & Moncharsh
EXHIBIT A
California Civil Code t 51.3. [Effective Until 1/1/2017] Limitations on occupancy, resid... Page I of 4
CALIFORNIA CODES
CALIFORNIA CIVIL CODE
Division 1. PERSONS
Part 2. PERSONAL RIGHTS
Current through the 2016 Legislative Session
V 51.3. /Effective Until 11112017/ Limitations on occupancy, residence, use based on age
(a) The Legislature finds and declares that this section is essential to establish and preserve
specially designed accessible housing for senior citizens. There are senior citizens who need
special living environments and services, and find that there is an inadequate supply of this
type of housing in the state.
(b) For the purposes of this section, the following definitions apply:
(1) "Qualifying resident" or 11 senior citizen" means a person 62 years of age or older, or 55
years of age or older in a senior citizen housing development.
(2) "Qualified permanent resident" means a person who meets both of the following
requirements:
(A) Was residing with the qualifying resident or senior citizen prior to the death,
hospitalization, or other prolonged absence of: or the dissolution of marriage
with, the qualifying resident or senior citizen.
(B) Was 45 years of age or older; or was a spouse, cohabitant, or person providing
primary physical or economic support to the qualifying resident or senior
citizen.
(3) "Qualified permanent resident" also means a disabled person or person with a disabling
illness or injury who is a child or grandchild ofthe senior citizen or a.qualified
permanent resident as defined in paragraph (2) who needs to live with the senior citizen
or qualified permanent resident because of the disabling condition, illness, or injury.
For purposes of this section, "disabled" means a person who has a disability as defined
in subdivision (b) of Section 54. A "disabling injuiy or illness" means an illness or
injury which results in a condition meeting the definition of disability set forth in
subdivision (b) of Section 54 .
(A) For any person who is a qualified permanent resident under this paragraph
whose disabling condition ends, the owner, board of directors, or other
governing body may require the formerly disabled resident to cease residing in
the development upon receipt of six months' written notice; provided, however,
that the owner, board of directors, o.r other governing body may allow the
person to remain a resident for up to one year after the disabling condition ends.
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California Civil Code t 51.3 . [Effective Until 111/2017] Limitations on occupancy, resid... Page 2 of 4
(B) The owner, board of directors, or other governing body of the senior citizen
housing development may take action to prohibit or terminate occupancy by a
person who is a qualified permanent resident under this paragraph if the owner,
board of directors, or other governing body fmds, based on credible and
objective evidence, that the person is likely to pose a significant threat to the
health or safety of others that cannot be ameliorated by means of a reasonable
accommodation; provided, however, that the action to prohibit or terminate the
occupancy may be taken only after doing both of the following :
(i) Providing reasonable notice to and an opportunity to be heard for the
disabled person whose occupancy is being challenged, and reasonable
notice to the coresident parent or grandparent of that person .
(ii) Giving due consideration to the relevant, credible, and objective
information provided in the hearing. The evidence shall be taken and
held in a confidential manner, pursuant to a closed session, by the
owner, board of directors, or other governing body in order to preserve
the privacy of the affected persons.
The affected persons shall be entitled to have present at the hearing an
attorney or any other person authorized by them to speak on their behalf
or to assist them in the matter.
( 4) "Senior citizen housing development" means a residential development developed,
substantially rehabilitated, or substantially renovated for, senior citiz.ens that has at
least 35 dwelling units.
Any senior citizen housing development which is required to obtain a public report
under Section 11010 of the Business and Professions Code and which submits its
application for a public report after July 1, 2001, shall be required to have been issued a
public report as a senior citizen housing development under Section 11010.05 of the
Business and Professions Code . No housing development constructed prior to January
1, 1985, shall fail to qualify as a senior citiz.en housing development because it wa.S not
originally developed or put to use for occupancy by senior citiz.ens.
(5) "Dwelling unit" or 11housing 11 means any residential accommodation other than a
mobilehome.
(6) "Cohabitant" refers to persons who live together as husband and wife, or persons who
are domestic partners within the meaning of Section 297 of the Family Code.
(7) "Pennitted health care resident11 means a person hired to provide live-in, long-term, or
terminal health care to a qualifying resident, or a family member of the qualifying
resident providing that care. For the purposes of this section, the care provided by a
permitted health care resident must be substantial in nature and must provide either
~ssistance with necessary daily activities or medical treatment, or both.
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California Civil Code t 51.3. [Effective Until 1/1/2017] Limitation8 on occupancy, resid... Page 3 of 4
A permitted health care resident shall be entitled to continue his or her occupancy,
residency, or use of the dwelling unit as a permitted resident in the absence of the
senior citizen from the dwelling unit only if both of the following are applicable:
(A) The senior citizen became absent from the dwelling due to hospitalization or
other necessary medical treatment and expects to return to his or her residence
within 90 days from the date the absence began.
(B) The absent senior citizen or an authorized person acting for the senior citizen
submits a written request to the owner, board of directors, or governing board
stating that the senior citizen desires that the permitted health care resident be
allowed to remain in order to be present when the senior citizen returns to
reside in the development
Upon written request by the senior citizen or an authorized person acting for the
senior citizen, the owner, board of directors, or governing board shall have the
discretion to allow a permitted health care resident to remain for a time period
longer than 90 days from the date that the senior citizen's absence began, if it
appears that the senior citizen will return within a period of time not to exceed
an additional 90 days.
( c) The covenants, conditions, and restrictions and other documents or written policy shall set
forth the limitations on occupancy, residency, or use on the basis of age. Any such limitation
shall not be more exclusive than to require that one person in residence in each dwelling unit
may be required to be a senior citizen and that each other resident in the same dwelling unit
may be required to be a qualified permanent resident, a permitted health care resident, or a
person under 55 years of age whose occupancy is permitted under subdivision (h) of this
section or under subdivision (b) of Section 51.4. That limitation may be less exclusive, but
shall at least require that the persons commencing any occupancy of a dwelling unit include a
senior citizen who intends to reside in the unit as his or her primary residence on a permanent
basis. The application of the rules set forth in this subdivision regarding limitations on
occupancy may result in less than all of the dwellings being actually occupied by a senior
citizen.
( d) The covenants, conditions, and restrictions or other documents or written policy shall permit
temporary residency, as a guest of a senior citizen or qualified permanent resident, by a person
of less than 5 5 years of age for periods of time, not less than 60 days in any year, that are
specified in the covenants, conditions, and restrictions or other docwnents or written policy.
( e) Upon the death or dissolution of marriage, or upon hospitalization, or other prolonged absence
of the qualifying resident, any qualified permanent resident shall be entitled to continue his or
her occupancy, residency, or use of the dwelling unit as a permitted resident. This subdivision
shall not apply to a permitted health care resident.
(t) The condominiwn, stock cooperative, limited-equity housing cooperative, planned
development, or multiple-family residential rental property shall have been developed for, and
initially been put to use as, housing for senior citizens, or shall have been substantially
rehabilitated or reDovated for, and inunediately afterward put to use as, housing for senior
citizens, as provided in this section; provided, however, that no housing development
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constructed prior to January l, 1985, shall fail to qualify as a senior citizen housing
development because it was not originally developed for or originally put to use for occupancy
by senior citizens.
(g) The covenants, conditions, and restrictions or other documents or written policies applicable to
any condominium, stock cooperative, limited-equity housing cooperative, planned
development, or multiple~family residential property that contained age restrictions on January
l, 1984, shall be enforceable only to the extent permitted by this section, notwithstanding
lower age restrictions contained in those documents or policies.
(h) Any person who has the right to reside in, occupy, or use the housing or an unimproved lot
subject to this section on January l, 1985, shall not be deprived of the right to continue that
residency, occupancy, or use as the result of the enactment of this section.
(i) The covenants, conditions, and restrictions or other documents or written policy of the senior
citizen housing development shall permit the occupancy of a dwelling unit by a permitted
health care resident during any period that the person is actually providing live-in, long-term,
or hospice health care to a qualifying resident for compensation. For purposes of this
subdivision, the tenn "for compensation" shall include provisions oflodging and food in
exchange for care.
(j) Notwithstanding any other provision of this section, this section shall not apply to the County
of Riverside.
Cite as Ca. Clv. Code V 51.3
History. Amended by Stats 2000 ch 1004 C SB 2011), Ll, eff. 11112001.
Previously Amended September 3, 1999 (Bill Number: SB 382) (Chapter 324).
Note: This section is set out twice. See also Ca. Cill. Code 1 51.3. as amended byStuts 20 16 ch 50 (SB JOQ5 J. !1. ejf.
/1112017.
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EXHIBITB
California Government Code q 65589.5 . Housing development projects for very low, low ... Page 1of7
California Government Code it 65589.s. H·ousfni{de~~10P.n1er1i ,fifPJ~cts,forV:e·ry ;1ow, ,
low or moderate-income hOJJ.Seh.o.ld.S io.d.uding emergency shetterS'::_. ;::; {~
CALIFORNIA CODES
CALIFORNIA GOVERNMENT CODE
Title 7. PLANNING AND LAND USE
Division 1. PLANNING AND ZONING
Chapter 3. LOCAL PLANNING
Article 10.6. Housing Elements
Current through the 2016 Legislative Session
h 65589.5. Housing development projects for very low, low or moderate-income households
including emergency shelters
(a) The Legislature finds and declares all of the following:
(1) The lack of housing, including emergency shelters, is a critical problem that threatens
the economic, environmental, and social quality of life in California.
(2) California housing has become the most expensive in the nation. The excessive cost of
the state's housing supply is partia1ly caused by activities and policies of many local
governments that limit the approval of housing, increase the cost of land for housing,
and require that high fees and exactions be paid by producers of housing.
(3) Among the consequences of those actions are discrimination against low-income and
minority households, lack of housing to support employment growth, imbalance in jobs
and housing, reduced mobility, urban sprawl, excessive commuting, and air quality
deterioration.
( 4) Many local governments do not give adequate attention to the economic,
environmental, and social costs of decisions that result in disapproval of housing
projects, reduction in density of housing projects, and excessive standards for housing
projects.
(b) It is the policy of the state that a local goverrunent not reject or make infeasible housing
developments, including emergency shelters, th.at contribute to meeting the need determined
pursuant to this article without a thorough analysis of the economic, social, and environmental
effects of the action and without complying with subdivision ( d).
( c) The Legislature also recognizes that premature and unnecessary development of agricultural
lands for urban uses continues to have adverse effects on the availability of those lands for
food and fiber production and on the economy of the state. Furthermore, it is the policy of the
state that development should be guided away from prime agricultural lands; therefore, in
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implementing this section, local jurisdictions should encourage, to the maximum extent
practicable, in filling existing urban areas.
( d) A local agency shall not disapprove a housing development project, including farmworker
housing as defined in subdivision (h) of Section 50199.7 of the Health and Safety Code, for
very low, low-, or moderate-income households, or an emergency shelter, or condition
approval in a manner that renders the project infeasible for development for the use of very
low, low-, or moderate-income households, or an emergency shelter, including through the use
of design review standards, unless it makes written findings, based upon substantial evidence
in the record, as to one of tbe following :
(1) The jurisdiction has adopted a housing element pursuant to this article that has been
revised in accordance with Section 65588, is in substantial compliance with this article,
and the jurisdiction has met or exceeded its share of the regional housing need
allocation pursuant to Section 65584 for the planning period for the income category
proposed for the housing development project, provided that any disapproval or
conditional approval shall not be based on any of the reasons prohibited by Section
65008 . If the housing development project includes a mix of income categorie~ and the
jurisdiction has not met or exceeded its share of the regional housing need for one or
more of those categories, then this paragraph shall not be used to disapprove or
conditionally approve the project The share of the regional housing need met by the
jurisdiction shall be calculated consistently with the forms and definitions that may be
adopted by the Department of Housing and Community Development pursuant to
Section 65400. In the case of an emergency shelter, the jurisdiction shall have met or
exceeded the need for emergency shelter, as identified pursuant to paragraph (7) of
subdivision (a) of Section 65583. Any disapproval or conditional approval pursuant to
this paragraph shall be in accordance with applicable law, rule, or standards. ·
(2) The development project or emergency shelter as proposed would have a specific,
adverse impact upon the public health or safety, and there is no feasible method to
satisfactorily mitigate or avoid the specific adverse impact without rendering the
development unaffordable to low-and moderate-income households or rendering the
development of the emergency shelter financially infeasible. As used in this paragraph,
a 11 speci:fic, adverse impact" mean.CJ a significant, quantifiable, direct, and unavoidable
impact, based on objective, identified written public health or safety standards, polici~
or conditions as they existed on the date the application was deemed complete.
Inconsistency with the zoning ordinance or general plan land use designation shall not
constitute a specific, adverse impact upon the public health or safety.
(3) The denial of the project or imposition of conditions is required in order to comply with
specific state or federal law, and there is no feasible method to comply without
rendering the development unaffordable to low-and moderate-income households or
rendering the development of the emergency shelter financially infeasible.
(4) The development project or emergency shelter is proposed on land zoned for
agriculture or resource preservation that is surrounded on at least two sides by land
being used for agricultural or resource preservation purposes, or which does not have
adequate water or wastewater facilities to serve the project.
(5)
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The development project or emergency shelter is inconsistent with both the
jurisdiction's zoning ordinance and general plan land use designation as specified in
any element of the general plan as it existed on the date the application was deemed
complete, and the jurisdiction has adopted a revised housing element in accordance
with Section 65588 that is in substantial compliance with this article.
(A) This paragraph cannot be utilized to disapprove or conditionally approve a
housing development project if the development project is proposed on a site
that is identified as suitable or available for veey low, low-, or moderate-income
households in the jurisdiction's housing element, and consistent with the density
specified in the housing element, even though it is inconsistent with both the
jurisdiction's zoning ordinance and general plan land use designation.
(B) 'If the local agency has failed to identify in the inventoey of land in its housing
element sites that can be developed for housing within the planning period and
are sufficient to provide for the jurisdiction's share of the regional housing need
for all income levels pursuant to Section 65584, then this paragraph shall not be
utilized to disapprove or conditionally approve a housing development project
proposed for a site designated in any element of the general plan for residential
uses or designated in any element of the general plan for commercial uses if
residential uses are permitted or conditionally permitted within commercial
designations. In any action in court, the burden of proof shall be on the local
agency to show that its housing element does identify adequate sites with
appropriate zoning and development standards and with services and facilities
to accommodate the local agency's share of the regional housing need for the
very low and low-income categories .
(C) If the local agency has failed to identify a zone or zones where emergency
shelters are allowed as a permitted use without a conditioDal use or other
discretionary permit, has failed to demonstrate that the identified zone or zones
include sufficient capacity to accommodate the need for emergency shelter
identified in paragraph (7) of subdivision (a) of Section 65583, or has failed to
demonstrate that the identified zone or zones can accommodate at least one
emergency shelter, as required by paragraph (4) of subdivision (a) of Section
65583, then this paragraph shall not be utilized to disapprove or conditionally
approve an emergency shelter proposed for a site designated in any element of
the general plan for industrial, commercial, or multifamily residential uses. In
any action in court, the burden of proof shall be on the local agency to show
that its housing element does satisfy the requirements of paragraph ( 4) of
subdivision (a) of Section 65583.
(e) Nothing in this section shall be construed to relieve the local agency from complying with the
congestion management program required ·by Chapter 2.6 (commencing with Section 65088)
of Division 1 of Title 7 or the California Coastal Ai;t of 1976 (Division 20 (commencing with
Section 30000) of the Public Resources Code). Neither shall anything in this section be
construed to relieve the local agency from making one or more of the findings required
pursuant to Section 21081 of the Public Resources Code or otherwise complying with the
California Environmental Quality Act (Division 13 (commencing with Section 21000) of the
Public Resources Code).
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(t) (1) Nothing in this section shall be construed to prohibit a local agency from requiring the
development project to comply with objective, quantifiable, written development
standards, conditions, and poiicies appropriate to, and consistent with, meeting the
jurisdiction's share of the regional housing need pursuant to Section 65584. However,
the development standards, conditions, and policies shall be applied to facilitate and
accommodate development at the density permitted on the site and proposed by the
development.
(2) Nothing in this section shall be construed to prohibit a local agency from requiring an
emergency shelter project to comply with objective, quantifiable, written development
standards, conditions, and policies that are consistent with paragraph ( 4) of subdivision
(a) of Section 65583 and appropriate to, and consistent with, meeting the jurisdiction's
need for emergency shelter, as identified pursuant to paragraph (7) of subdivision (a) of
Section 65583. However, the development standards, conditions, and policies shall be
applied by the local agency to facilitate and accommodate the development of the
emergency shelter project.
(3) This section does not prohibit a local agency from imposing fees and other exactions
otherwise authoriz.ed by law that are essential to provide necessary public services and
facilities to the development project or emergency shelter.
(g) This section shall be applicable to charter cities because the Legislature finds that the lack of
housing, including emergency shelter, is a critical statewide problem.
(h) The following definitions apply for the purposes of this section:
(1) "Feasible" means capable of being accomplished in a successful manner within a
reasonable period of time, taldng into account economic, environmental, social, and
technological factors.
(2) "Housing development project" means a use consisting of any of the following:
(A) Residential units only.
(B) Mixed-use developments consisting of residential and nonresidential uses in
which nonresidential uses are limited to neighborhood commercial uses and to
the first floor of buildings that are two or more stories. As used in this
paragraph, "neighborhood commercial" means small-scale general or specialty
stores that furnish goods and services primarily to residents of the
neighborhood.
(C) Transitioruil housing or supportive housing.
(3) "Housing for very low, low-, or moderate-income households" means that either (A) at
least 20 percent of the total units shall be sold or rented to lower income households, as
defined in Section 50079.5 of the Health and Safety Code, or (B) 100 percent of the
units shall be sold or rented to persons and families of moderate income as defined in
Section 50093 of the Health and Safety Code, or persons and families of middle
income, as defined in Section 65008 of this code. Housing units targeted for lower
income households shall be made available at a monthly housing cost that does not
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exceed 30 percent of 60 percent of area median income with adjustments for household
size made in accordance with the adjustment factors on which the lower income
eligibility limits are based. Housing units targeted for persons and families of moderate
income shall be made available at a monthly housing cost that does not exceed 30
percent of 100 percent of area median income with adjustments for household size
made in accordance with the adjustment factors on which the moderate-income
eligibility limits are based.
(4) "Area median income" means area median income as periodically established by the
Department of Housing and Community Development pursuant to Section~ of the
Health and Safety Code. The developer shall provide sufficient legal commitments to
ensure continued availability of units for very low or low-income households in
accordance with the provisions of this subdivision for 30 years.
(5) "Disapprove the development project" includes any instance in which a local agency
does either of the following :
(A) Votes on a proposed housing development project application and the
application is disapproved.
(B) Fails to comply with the time periods specified in subdivision (a) of Section
65950. An extension of time pursuant to Article 5 (commencing with Section
65950) shall be deemed to be an extension of time pursuant to this paragraph.
(i) If any city, county, or city and county denies approval or imposes restrictions, including design
changes, a reduction of allowable densities or the percentage of a lot that may be occupied by a
building or structure under the applicable planning and zoning in force at the time the
application is deemed complete pursuant to Section 65943, that have a substantial adverse
effect on the viability or affordability of a housing development for very low, low-, or
moderate-income households, and the denial of the development or the imposition of
restrictions on the development is the subject of a comt action which c~lenges the denial,
then the burden of proof shall be on the local legislative body to show that its decision is
consistent with the fmdings as described in subdivision ( d) and that the findings are supported
by substantial evidence in the record. ·
G) When a proposed housing development project complies with applicable, objective general
plan and zoning standards and criteria, including design review standards, in effect at the time
that the housing development project's application is determined to be complete, but the local
agency proposes to disapprove the project or to approve it upon the condition that the project
be developed at a lower density, the local agency shall base its decision regarding the proposed
housing development project upon written findings supported by substantial evidence on the
record that both of the following conditions exist: ·
(1) The housing development project would have a specific, adverse impact upon the
public health or safety unless the project is disapproved or approved upon the condition
that the project be developed at a lower density . As used in this paragraph, a "specific,
adverse impact" means a significant, quantifiable, direct, and unavoidable impact,
based on objective, identified written public health or safety standards, policies, or
conditions as they existed on the date the application was deemed complete.
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(2) There is no feasible method to satisfactorily mitigate or avoid the adverse impact
identified pursuant to paragraph (I), other than the disapproval of the housing
development project or the approval of the project upon the condition that it be
developed at a lower density.
(k) The applicant or any person who would be eligible to apply for residency in the development
or emergency shelter may bring an action to enforce this section. If, in any action brought to
enforce the provisions of this section, a court finds that the local agency disapproved a project
or conditioned its approval in a manner rendering it infeasible for the development of an
emergency shelter, or housing for very low, low-, or moderate-income househoids, including
farmworker housing, with.out making the findings required by this section or without making
sufficient findings supported by substantial evidence, the court shall issue an order or
judgment compelling compliance with this section within 60 days, includin& but not limited
to, an order that the local agency take action on the development project or emergency shelter.
The court shall retain jmisdiction to ensure that its order or judgment is carried out and shall
award reasonable attorney's fees and costs of suit to the plaintiff or petitioner who proposed
the housing development or emergency shelter, except under extraordinary circumstances in
which the court finds that awarding fees would not further the purposes of this section. If the
court determines that its order or judgment has not been carried out within 60 days, the court
may issue further orders as provided by law to ensme that the purposes and policies of this
section are fulfilled, including, but not limited to, an order to vacate the decision of the local
agency, in which case the application for the project, as constituted at the time the local agency
took the initial action detennined to be in violation of this section, along with any standard
conditions determined by the court to be generally imposed by the local agency on similar
projects, shall be deemed approved unless the applicant consents to a different decision or
.action by the local agency. ·
(1) If the court finds that the local agency (1) acted in bad faith when it disapproved or
conditionally approved the housing development or emergency shelter in violation of this
section and (2) failed to carry out the court's order or judgment within 60 days as described in
subdivision (k) •. the court, in addition to any other remedies provided by this section, may
impose fines upon the local agency that the local agency shall be required to deposit into a
housing trust fimd. Fines shall not be paid from funds that are already dedicated for affordable
housing, including, but not limited to, redevelopment or low-and moderate-income housing
funds and federal HOME and CDBG fimds. The local agency shall commit the money in the
trust fund within five years for the sole purpose of financing newly constructed housing units
affordable to extremely low, very low, or low-income households. For purposes of this section,
"bad faith" shall mean an action that is frivolous or otherwise entirely without merit.
(m) Any action brought to enforce the provisions of this section shall be brought pursuant to
Section 1094.5 of the Code of Civil Procedure, and the local agency shall prepare and certify
the record of proceedings in accordance with subdivision ( c) of Section 1094 .6 of the Code of
Civil Procedure no later than 30 days after the petition is served, provided that the cost of
preparation of the record shall be borne by the local agency. Upon entry of the trial court's
or4er, a party shall, in order to obtain appellate review of the order, file a petition within 20
days after service upon it ofa written notice of the entry of the order, or within such further
time not exceeding an additional 20 days as the trial court may for good cause allow. If the
local agency appeals the judgment of the trial court, the local agency shall post a bond, in an
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amount to be determined by the court, to the benefit of the plaintiff if the plaintiff is the
project applicant.
(n) In any action, the record of the proceedings before the local agency shall be filed as
expeditiously as possible and, notwithstanding Section 1094.6 of the Code of Civil Procedure
or subdivision (m) of this section, all or part of the record may be prepared (1) by the
petitioner with the petition or petitioner's points and authorities, (2) by the respondent with
respondent's points and authorities, (3) after payment of costs by the petitioner, or ( 4) as
otherwise directed by the court. If the expense of preparing the record bas been borne by the
petitioner and the petitioner is the prevailing party, the expense shall be taxable as costs.
( o) This section shall be known, and may be cited, as the Housing Accountability Act.
Cite as Ca. Gov. Code D 65589.5
History. Amended by Stats 2015 ch 349 (AB 1516). ~ eff. 1/112016.
Amended by Stats 2010 ch 610 CAB 2762), s 2, eff. 11112011.
Amended by Stats 2007 ch 633 ( SB 2). §.i, eff. 11112008.
Amended by Stats 2006 ch 888 ( AB 251 l), s 5, eff. 1/1/2007.
Amended by Stats 2005 ch 601 (SB 5751!.!.eff.111/2006
Amended by Stats 2004 ch 724 (AB 2348), U. eff. 111/2005
Amended by Stats 2003 ch 793 ( SB 619), ti, eff. 1/ 112004.
Amended by Stats 2002 ch 14 7( SB 1721). !..!. eff. 111/2003.
Amended by Stats 2001ch237 (AB 369), tl, eff. 111/2002.
Previously Amended October 10, 1999 (Bill Number: SB 948) (Chapter 968).
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E.OCHIBIT C
239 Cal.App.4th 56, B25011 l, Carson Harbor Village, Ltd. v. City of Carson
Check Mate
Page 56
Case Histo,Y i
239 Cal.App.4th 56
190 Cal.Rptr.3d 511
CARSON HARBOR VILLAGE, LTD., Plaintiff and Respondent,
v.
CITY OF CARSON, Defendant and Appellant.
B250111
California Court of Appeals, Second District, Eighth Division
July 31, 2015
[As Modification on August 21, 2015]
Page 1 of 17
APPEAL from a judgment of the Superior Court of Los Angeles County No. BS133538. James
C. Chalfant, Judge.
Page 57
[Copyrighted Material Omitted]
Page 58
[Copyrighted Material Omitted]
Page 59
COUNSEL
Aleshire & Wynder, William W. Wynder, Sunny K. Soltani and Jeff M. Malawy, for Defendant
and Appellant.
Gilchrist & Rut1er, Richard H. Close, Thomas W . Casparian, and Yen N. Hope, for Plaintiff and
Respondent.
Page 60
OPINION
RUBIN,J.
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23 9 Cal.App.4th 56, 8250111, Carson Harbor Village, Ltd. v. City of Carson Page2of17
The City of Carson appeals from the judgment in this mandate action directing it to approve .
Carson Harbor Village, Ltd.'s application to convert its mobilehome park from a rental facility to a
subdivision of resident--0wned lots. We reverse because substantial evidence supports the City's
fmdings that allowing the conversion would be inconsistent with the open space element of its general
plan by placing at risk a state and federally regulated wetlands area within the confines of the
mobilehome park.
OVERVIEW
Cities must have general plans governing development, including the protection of open space,
and must also deny proposed subdivisions that are inconsistent with their general plans. (Gov. Code,
§§ 65300, 65302, 66474, subd. (b), 66498 .6, 65567.)llJ The conversion of a mobilehome park from
individual space rentals to lot ownership is a subdivision subject to the subdivision laws . (§§ 66424,
66427.4, 66427.5 , 66428.1.) The statute governing that procedure is concerned with protecting low-
income renters and a proposed conversion may be denied if the applicable local agency determines
that the proposal is a sham designed to dodge local rent control ordinances .(§ 66427 .S.) However,
that statute limits the scope of the local agency's hearing to the issue of compliance with those
statutory requirements.(§ 66427.5, subd. (e).)
Previous Courts of Appeal held that the scope of hearing provision barred local agencies from
imposing additional conditions related to the bona fide conversion issue. In reliance on those
decisions, we held in om earlier decision in this case that the scope of hearing provision also
prevented local agencies from denying a proposed mobilehome park conversion if it was inconsistent
with elements of a city's general plan. (Carson Harbor Village, Ltd v. City of Carson (Mar. 30, 2010,
B211777) [nonpub. opn.] (Carson Harbor I).) Om Supreme Court's later decision in Paci.fie
Palisades Bowl Mobile Estates, LLC v. City of Los Angeles (2012) 55 Cal.4th 783 [149 Cal.Rotr.3d
ill, 288 P.3d 7171 (Paci.fie Palisades) has led us to reconsider that part of our decision in Carson
Harbor I and conclude that at least under the facts of this case, they now can.
FACTS AND PROCEDURAL HISTORY
Carson Harbor Village, Ltd. (the park), is a mobilehome park in the City of Carson (City). It
consists of 420 rental spaces on 70 acres of land, 17 acres of
Page 61
which are federally and state regulated wetlands and which is the only open space area within the
City. In 2007 the City rejected the park's application to convert from rental spaces to a subdivision of
individually owned lots. The primary reason for the denial was the City's finding that the proposed
subdivision was a sham intended to skirt the City's rent control laws, based on the supposed
inadequacy of tenant support surveys, as well as a lack of tenant support. The City also denied the
application because the proposed subdivision was inconsistent with the affordable housing and open
space elements of its general plan. ra:I
A 2008 mandate action by the park led to a trial court judgment against the City. The trial court
found that: (1) even though a 2005 tenant survey had been inadequate, a 2007 survey by the park bad
been properly conducted; (2) in any event, the application could not be rejected based on a lack of
tenant support;· and (3) the City could not deny the application for inconsistency with its general plan.
The City appealed and we reversed in part and affirmed in part in Carson Harbor/, supra, B211777.
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We held that the City could find the subdivision plan was a shani based on the lack of tenant
support and remanded the matter back to the trial court with directions to order the City to reconsider
~ application in light of the 2007 survey, along with directions to receive additional information that
would clarify or supplement the application and the evidence received before. (Carson Harbor I,
supra, B21l777.) We also held that the City could not reject the application based on its supposed
inconsistency with elements of its general plan. (Ibid )lll
On remand, the City held new public hearings in 2011 and once more rejected the park's
subdivision application. The City found that even though purchase incentives offered by the park had
increased tenant support from 11 percent to 24 percent, that level of support was insufficient. The City
also found that the proposed conversion was not bona fide because it was unlikely that many of the
low income tenants living in the park would agree to buy their lots, the tenant survey improperly
gauged support for the incentives, not the conversion, and the required tenant impact rep0rt did not
include information requested about the wetlands and the displacement effect on current tenants. The
City alternatively denied the application because it was inconsistent with its general plan's affordable
housing and open space elements and posed a risk to the wetlands and its wildlife.(§ 66474, subds.
(b) & (e).)
Page 62
The park brought another mandate action. The trial court issued an interim order that the City
conduct a new hearing, and take expert evidence, concerning only the issue of whether the proposed
conversion was .bona fide. In 2012, the City held that hearing and once more rejected the park's
subdivision application. The matter returned to the trial court, which found for the park on the bona
fide conversion issue. The trial court also found that, in part based on our prior opinion, inconsistency
with a local agency's general plan was not a proper ground to deny the application and that, in any
event, there was no evidence the park's proposal was inconsistent with the City's general plan.
STANDARD OF REVIEW
We review the City's decision to deny the park's subdivision application under the substantial
evidence standard. (218 Properties, LLC v. City of Carson (2014) 226 Cal.App.4th 182. 189 [ill
Cal.Rptr.3d 608) (218 Properties).) We do not review and are not bound by the trial court's factual
findings or legal conclusions. (Ibid) Instead, our scope of review is the same as the trial court's: we
examine the entire record to detennine whether the City's findings were supported by substantial
evidence. (Ibid) However, we begin with the presumption that the findings are supported by
substantial evidence. It is the park's burden to prove othCIWise. (Carson Harbor Village, Ltd v. City
of Carson Mobilehome Park Rental Review Bd (1999) 70 Cal.Aim.4th 281. 287 [82 Cal.Rptr.2d
569].)
DISCUSSION
1. The Laws Regarding General Plans and Subdivisions
All local governments must have a comprehensive and long-term general plan for the
development ofland within their boundaries. (§ 65300.) The general plan sits atop the hierarchy of
land use regulations. (De Vita v. County of Napa (1995) 9 Cal.4th 763, 773 [38 Cal.Rptr.2d 699, 889
P.2d 1019] (DeVita).) Acting much like a land-use constitution, it is the basic charter governing the
direction of future land use within a locality. (Lesher Communications, Inc. v. City of Walnut Creek
(1990) 52 Ca1.3d 531, 540, 542 [277 Cal.Rptr. 1, 802 P.2d ll7].) The propriety of virtually any local
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land use decision depends upon its consistency with the general plan. (Citizens of Goleta Valley v.
Board ofSupervisors (1990) 52 Cal.3d 553, 570 [776 Cal.Rptr. 410 . 801 P.2d 1161].)
The general plan must include seven elements -land use, circulation, conservation, housing,
noise, safety, and open space -and must address each in whatever level of detail local conditions
require. (De Vita, supra,
Page 63
9 Cal.4th at p. 773; §§ 65301, 65302.) Open-space laµd includes areas designated for the preservation
of natural resources such as plant and animal life, including habitats for fish and wildlife species,
along with streams and watershed lands.(§ 65560, subd. (b)(l).)
When enacting the open space elements law, the Legislature made several findings. (§ 65561.)
The Legislature found that preserving open-space land was "n~ not only for the maintenance
of the economy of the state, but also for the assurance of the continued availability of land for the
production of food and fiber, for the enjoyment of scenic beauty, for recreation and for the use of
natural resources."(§ 65561, subd. (a).) The Legislature also found that increasing population
"demands that cities, counties, and the state at the earliest possible date make definite plans for the
preservation of valuable open-space land and take positive action to carry out such plans by the
adoption and strict administration oflaws ...... (§ 65561, subd. (c).) Therefore the open space elements
law was "necessary for the promotion of the general welfare and for the protection of the public
interest in open-space land."(§ 65561, subd. (e).)
The Legislature also declared its intent in adopting the open space element law: "(a) To assure
that cities and counties recogniu that open-space land is a limited and valuable resource which must
be conserved wherever possible. [f.J (b) To assure that every city and county will prepare and carry
out open-space plans whic~ along with state and regional open-space plans, will accomplish the
objectives of a comprehensive open-space program."(§ 65562.) Therefore, "[n]o building permit may
be issued, no subdivision map approved, and no open-space zoning ordinance adopted, unless the
proposed construction, subdivision or ordinance is consistent with the local open-space plan."(§
65567.)
The Subdivision Map Act(§§ 66410-66499.37 (the Map Act)) is the primary regulatory con1rol
over the subdivision of real property in California. (Pacific Palisades, supra, 55 Cal.4th at p. 798.)
The Map Act is designed to promote orderly community developments and involves an application
process that culmL'lates in public hearings to determine whether a subdivision map will be approved.
(55 Cal.4th at p. 799.) The Map Act lists a number of circumstances that require denial of a map,
including inconsistency with an applicable general plan(§ 66474, subd. (b)), and the likelihood that
the proposed subdivision will cause substantial environmental damage or substantially and avoidably
injure fish or wildlife or their habitat. (§ 66474, subd. (e).) Mobilehome park conversions are
subdivisions subject to the Map Act. (§§ 66424, 66427.4, 66427.5, 66428 .1; Pacific Palisades, at p.
800.)
Page 64
2. Mobilehome Park Conversion Statutes
In 1984, the Legislature passed the Mobilehome Park Resident Ownership Program (Health &
Saf. Code,§ 50780, et seq., (MPROP)) because mobile-home parks-a significant source of
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affordable housing-were threatened by cost increases, physical deterioration, and pressures to
convert them to other uses. (Pacific Palisades, supra, 55 Cal.4th at pp. 803-804.) MPROP was
designed to encourage and facilitate the conversion of mobilehome park ownership by residents, local
public entities, or qualified nonprofit housing sponsors. To that end , MPROP provides for public
financing assistance for mobilehome park conversions . (Id. at p. 804.)
In 1991 , the Legislatme enacted the provision in dispute he~tion 66427.5. Although it has
gone through a cycle of judicial interpretations and responsive legislative amendments, its essence
remains the same. When a mobilehome park's owner seeks to convert from rental to resident
ownership by way of the subdivision process, it must take certain steps in order to avoid the economic
displacement of residents who choose not to buy. The owner must: (1) offer each existing tenant an
option to either buy his current rental space or continue as a tenant; (2) file a report on the impact of
the conversion on the tenants; (3) obtain a survey of tenant support for the proposed subdivision
pursuant to an agreement with any resident homeowners' association; ( 4) submit the survey· results to
the agency that will act on the subdivision application; and (5) for low income nonpurcbasing
residents, apply a rent control formula for the ensuing four years.(§ 66427.5, subds . (a)-(e).)lil
The process culminates in a hearing before the applicable local agency with authority to approve
or disapprove the proposed subdivision.(§ 66427.5, subd. (e).) The troublesome issue here arises
from the remainder of that subdivisio~ which states that "[t]he scope of the hearing shall be limited to
the issue of compliance with this section." (Ibid.) We next consider how that subdivision has been
construed.
3. Legislative History of, and Appellate Decisions Construing, Section 66427.5
When section 66427.5 was enacted in 1991, it applied only to mobilehome subdivision
conversions using public financing under MPROP. (Stats. 1991,
Page 65
ch. 475, § 2, p. 3324; Colony Cove Properties, LLCv. CityofCarson (2010) 187Cal.App.4th1487,
1498-1499 [114 Cal.Rptr.3d 822] (Colony Cove).} The statute was amended in 1995 to remove the
MPROP restriction and permit its application to all proposed mobilehome park conversions. (Stats.
1995, ch. 256, § 4, pp. 882, 883.) The 1995 amendment added provisions to avoid the eco~omic
displacement of tenants, including the requirements to: (1) offer residents a choice between buying or
remaining as tenants; and, (2) file a report from the owner on the impact of the proposed conversion.
(Stats. 1995, ch. 256, § 4, pp. 882, 883.) The 1995 amendment also added language to what was then
subdivision (d) requiring a public hearing on the proposed subdivision that ''shall be limited to the
issue of compliance with this section." (Stats. 1995, ch. 256, § 4, pp. 882, 883.) These amendments
were silent on whether the conversion must be bona fide .
The court in Donohue v. Santa Paula West Mobile Home Park (1996) 47 Cal.App.4th 1168 [22
Cal.Rptr.2d 282] held that local rent control ordinances remained in effect after a subdivision was
approved, but only until the first lot was sold. (Id at p. 1175.) Worried that mobilehome park owners
might take advantage of that holding and obtain relief from rent control once a single lot had been
sold, the City of Palm Springs passed an ordinance requiring a showing that the proposed conversion
was bona fide. This included a delay in lifting rent control until escrow closed on one-third of the lots.
The court in El Dorado Palm Springs, Ltd v. City of Palm Springs (2002) 96 Cal.App.4th 1153 [118
Cal .Rptr.2d 15] (El Dorado), held that the ordinance violated section 66427 .S because the 1995
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amendments strictly limited local agencies from imposing conditions beyond those required by the
statute. (El Dorado, at pp. 1165-1166 .)
The Legislature amended section 66427.5 in response to El Dorado by moving the compliance
hearing requirement to subdivision ( e) and adding a new subdivision ( d) that required the subdivider
to obtain and provide a survey of the tenants in order to determine 1heir support for the proposed
conversion.(§ 66427.5, subd. (d), added by Stats. 2002, ch. 1143, § 1, pp. 7398, 7399; Pacific
Palisades, supra, 55 Cal.4th at p. 809.) The Legislature also enacted, but did not include in the
codified amendments, a statement that it intended to address El Dorado and ensure that mobilehom.e
park conversions under section 66427.5 were bona fide. (Stats. 2002, ch. 1143, § 2, pp. 7399-7 400.)
However, the Legislature rejected a proposed amendment that would have given local agencies the
authority to impose additional conditions they found " 'necessary to preserve affordability or to
protect nonpurchasing residents from economic displacement' " (Sen. Amend. to Assent. Bill No.
930 (2001-2002 Reg. Sess.) June 26, 2002, § 1, p. 3, italics omitted; Pacific Palisades, at p. 809.)
Page 66
In Sequoia Park Associates v. County of Sonoma (2009) 176 Cal.App.4th 1270 [98 Cal.Rptr.3d
669] (Sequoia Park), the court invalidated a county ordinance that set a sliding scale percentage of
tenant support in order to determine whether a proposed conversion was bona fide. The court held that
through section 66427.5 the Legislature had expressly and impliedly preempted any local regulation
ofmobilehame park conversions. (Sequoia Parle, at pp. 1275, 1297-1300.) The court in Colony Cove,
supra, 187 Cal.App.4th 1487 invalidated a similar ordinance enacted by the City of Carson, holding
that the 1995 amendments to section 66427.5 prevented local agencies from adopting tougher
measures regulating mobilehome park conversions. (Colony Cove, at p. 1506.) The court added that
the Legislature's rejection of a proposal to allow local agencies to add conditions showed that "it
continues to oppose local deviation from or addition to the statutory criteria." (Ibid)
4. The Pacific Palisades Decision
Two sets of statutes, not directly involved in the current appeal, were at issue in Pacific
Palisades: the Coastal Act and the Mello Act. The California Coastal Act of 1976 (Pub. Resources
Code, § 30000 et seq.; Coastal Act) empowers local agencies to regulate development within the
state's entire coastal zone. (Pub. Resources Code, § 30001.) The Mello Act (Gov. Code, §§ 65590,
65590.1) supplements the housing element provisions of the Government Code's general plan scheme
by establishing minimum requirements for affordable housing within the coastal zone.(§ 65590,
subds. (b) & (k); Pacific Palisades, supra, 55 Cal.4th at p. 798.) The Pacific Palisades court
considered whether a proposed mobilehome park subdivision in the coastal zone was subject to those
provisions, or whether Government Code section 66427.S occupied the field and barred their use by
local agencies when considering a conversion application.
The park owner in Pacific Palisades brought a mandate action against the City of Los Angeles
after the city refused to accept its subdivision application without also providing applications for a
coastal development permit and for Mello Act approval. The trial court found for the owner,
concluding that section 66427.5 set forth the exclusive requirements for subdivision approval, thus
exempting the Coastal Act and the Mello Act from the subdivision application process. The Court of
Appeal reversed, holding that the policy considerations behind the Coastal Act and Mello Act were
more extensive than, and therefore took precedence over, those embodied in section 66427.5.
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The Supreme Court affirmed, rejecting the park owner's contentions that, in line with El
Dorado, Sequoia Park, and Colony Cove, Government Code section 66427.5 prevented local agencies
from straying outside the requirements imposed by that section when passing on proposed
mobilehome park
Page 67
conversions. Key to its analysis was the important policy considerations embodied in both the Coastal
Act and the Mello Act. In enacting the Coastal Act, the Legislature found that the state's coastal zone
was "a distinct and valuable natural resource of vital and enduring interest to all the people, " that
pennanently protecting this resource was a "paramount concern" that was ''necessary to protect the
ecological balance of the coastal zone, " and that making sure future developments complied with the
act was "essential to the economic and social well-being of the people of this state .... " (Pub.
Resources Code,§ 30001, subds. (a}{d).) The Coastal Act relies heavily on local governments to
achieve its purposes, and development pennits issued under the Coastal Act are not just a matter of
local law but also embody state policy. (Pacific Palisades, supra, 55 Cal.4th at p . 794.) The Coastal
Act is to be liberally construed. (Pub . Resources Code,§ 30009.)
As for the Mello Act, the court looked to the housing element provisions of the general plan
·statutes, as to which the Legislature declared: "[t]he availability of housing is of vital statewide
importance;" and "decent housing and a suitable living environment for every Californian ... is a
priority of the highest order."(§ 65580, subd. (a).) The Mello Act supplements these provisions in the
coastal zone, the court held. (Pacific Palisades, supra, SS Cal.4th at p. 798.)
These "[s]ignificant state policies favor an interpretation of ... section 66427.5" that does not
strip away Coastal Act and Mello Act jurisdiction over land use within the coastal zone. (Pacific
Palisades, supra, 55 Cal.4th at p. 803.) The Pacific Palisades court rejected the park owner's reliance
on MPROP as a superseding legislative policy that favored mobilehome park conversions by
simplifying the approval process for those conversions. "[N]othing in ... section 66427.5 suggests a
belief by the Legislature that this policy is of more importance than and overrides the 'paramount' and
'vital' concerns of the Coastal Act and the Mello Act." (Id at p. 805.)
This conclusion was supported by other factors: (1) section 66498.6, subdivision (b) of the Map
Act states that nothing in that act affects a subdivider's or local agency's obligations to comply with
applicable state and federal laws, regulations or policies; (2) the other interests at stake; and (3) the
absence of language in section 66427.5 that expressly excepts mobile-home park conversions from
those laws, regulations, or policies. (Pacific Palisades, supra, 55 Cal.4th at p. 805 .) These factors
"strongly suggest [that section 66427.5], like the other provisions of the Subdivision Map Act, is
intended to operate in conjunction with other state laws." (Ibid)
The Pacific Palisades court also relied on rules of statutory construction requiring the courts to
harmonize and reconcile inconsistencies between
Page 68
statutory provisions wherever possible and, absent an express declaration of legislative intent, to
avoid implied repeals unless the conflicting provisions were fatally irreconcilable and inconsistent.
(Pacific Palisades, supra, 55 Cal.4th at p. 805.) Applying these rules, the Supreme Court held that
section 66427.5 could be "construed to require a hearing devoted exclusively to the issue of economic
displacement of tenants in addition to the procedures and hearings required by other state
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laws." (Pacific Palisades, supra, at p . 805, original italics.) "Such a construction is consistent with the
general application of the Subdivision Map Act and the Coastal Act and the Mello Act to
developments within the coastal zone, harmonizing the provisions of all three acts." (Ibid, original
italics.) It was also consistent with the Mello Act's express mandate that it applied to mobilehome
park conversions within the coastal zone. (Id at pp. 805-806, citing§ 65590, subds. (b) & (g)(l).) The
contrary construction advanced by the park owner not only failed to harmonize the three acts; it would
also lead to an implied partial repeal by overriding their provisions. (Pacific Palisades, at p. 806.)
Finally, the Supreme Court rejected the park owner's reliance on El Dorado, Sequoia Park, and
Colony Cove, including the Legislature's decision to forego an amendment that would have given
local agencies additional regulatory authority. At issue in those decisions was a local agency's attempt
to add further conditions to section 66427.5 in order to avoid economic displacement of the park's
tenants. None considered ''the specific issues presented by this case: whether the section exempts
conversions from other state laws, such as the Coastal Act and the Mello Act, or bars local agencies
from exercisllig the authority delegated to them by the Coastal Act and the Mello Act to require
compliance with those acts and to reject or deny applications that do not establish
compliance." (Pacific Palisades, supra, 55 Cal.4th at pp. 809-810.)
5. The General Plan Open .Space Element May Be Considered as Part of the Mobilehome
Park Convenion Process
The City contends that Pacific Palisades' reasoning applies to its reliance on the open space
element of its general plan as an alternative ground for denying the park's conversion application. We
agree.
The policy concerns that underlie the open space element are strikingly similar to those of~
Coastal Act that the Pacific Palisades court found so persuasive. In the Coastal Act, the Legislature
declared that the coastal zone was a "paramount concern" whose protection was ''necessary" to
protect a valuable resource that was "essential" to the economic and social well-being of Californians.
(Pub. Resources Code,§ 30001, subds . (b)-(d); see Pacific Palisades, supra, 55 Cal.4th at pp. 794,
804.) Likewise, the Legislature found
Page 69
that the open space elements law was "necessary" to maintain the economy and to assure the
availability of land for agriculture, recreation, and scenic beauty. (§ 65561, subd. (a).) Our increasing
population demanded that local agencies take positive action to protect open space, and that the open
space laws were "necessary" to promote the general welfare and protect the public's interest in
maintaining this limited and valuable resource.(§ 65561, subds. (c) & (e); see § 65562, subd. (a).)
The existence of these polfoies brings into play the same interpretive rules promoting statutory
harmoniz.ation and rejecting implied repeals that motivated the Pacific Palisades court. Under the
Map Act, local agencies must reject a proposed subdivision if it is inconsistent with their general plan.
(§ 66474, subd. (b).) And while a local agency may approve a vesting tentative subdivision map that
departs from local ordinances, policies, and standards(§§ 66474.2, 66498.1, 66498.4) those
departures are permitted only to the extent they arc "authorized under applicable law}'(§ 66498.4.)
Furthermore, nothing in these tentative vesting map provisions "removes, diminishes, or affects the
obligation of any subdivider to comply with the conditions and requirements of any state or federal
laws, regulations, or policies and does not grant local agencies the option to disregard any state or
federal laws, regulations, or policies.,, (§ 66498.6, subd . (b ); see Pacific Palisades, supra, 55 Cal.4th
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at p. 805.) Likewise, the general plan open space law states that no subdivision may be approved
unless it is consistent with a local open space plan.(§ 65567.)
Although the park relies on the availability of MPROP public financing to show that its
proposed subdivision will not displace tenants, that program requires compliance with local plans and
zoning laws as a prerequisite to funding.~ (Health & Saf. Code, § 50786, subd. (dX3).) We do not see
how the City could approve the subdivision based on the prospect of public financing for low incomes
residents if the switch would be inconsistent with its general-plan.
Section 66427 .5 says nothing about excepting mobilehome park conversions from those
requirements. (Pacific Palisades, supra, 55 Cal.4th at p. 805.) Instead, section 66427.5 can be read to
require a hearing on tenant economic displacement wholly apart from considerations of the open ·
space element of the City's general plan. To hold otherwise would not just fail to harmonize these
statutory provisions; it would also lead to their implied partial repeal. (55 Cal.4th at pp. 805~806.)(§]
Page 70
The park does not address these concerns. Instead, it contends we cannot follow Pacific
Palisades for three reasons: (1) our holding in Carson Harbor I that general plan inconsistency was
not an available ground for denying a proposed mobilehome park conversion is law of the case; (2)
the Pacific Palisades holding is limited to the Coastal Act and the Mello Act; and (3) under section
66427.2, conversions to condominium ownership are exempt from the Map Act's requirements. We
take each in turn.
First, the park relies on outdated authorities to support its law of the case contention. An
intervening Supreme Court decision such as Pacific Palisades has for some time been considered an
exception to the law of the case doctrine . (Davies v. Krasna (1975) 14 Cal.3d 502, 507, fn. 5 [121
CaJ .Rptr. 705. 535 P.2d 1161]; Ryan v. Mike-Ron Corp . (1968) 259 Ca1.Aw .2d 91 . 96-97 ~
Cal.Rptr. 2241.) The Court of Appeal decision in Pacific Palisades was filed in August 2010, and
review was granted (Pacific Palisades Bowl Mobile Estates v. City of Los Angeles£!.) (Cal.App.)),
months after our decision in Carson Harbor I. The City's 2011 resolution denying the park's
subdivision application expressly relied on general plan inconsistency as an alternative ground in the
event the Supreme Court affirmed the Court of Appeal's Pacific Palisades decision. The Supreme
Court did so, and as a result the law of the case exception applies here.
Second, we acknowledge that the Pacific Palisades court limited its holding to the applicability
of the Coastal Act and the Mello Act to mobilehome park subdivisions. (Pacific Palisades, supra, 55
Cal.4th at p. 803.) That was the issue presented to the court. The park contends that the court did more
than that, reiterating the holdings of El Dorado, Sequoia Parle, and Colony Cove that "section 66427.5
precludes local regulation of mobile-home park conversions to resident ownership .... " (Id. at p.
810.) The park omits both the context and the court's qualifying language, which distinguished those
decisions despite their seemingly broad statements precluding local regulation of mobilehome park
conversions because none addressed "the specific issues presented by this case : whether the section
exempts conversions from other state laws, such as the Coastal Act and the Mello Act, or bars local
agencies from exercising the authority delegated to them by [those acts] to require compliance with
those acts .... " (Ibid., italics added.)
In its introductory paragraph, the Pacific Palisades court framed its holding as a rejection of the
notion that section 66427.5 exempts mobilehome park conversion "ftom the need to comply with
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other state laws, ... "(Pacific Palisades, supra, 55 Cal.4th at p. 792.) Elsewhere, the court
distinguished El Dorado, Sequoia Park, and Colony Cove and held that the factors underlying
Page 71
its analysis "strongly suggest that[§ 66427.5] like the other provisions of the Subdivision Map Act, is
intended to operate in conjunction with other state laws." (Id. at p. 805. italics added.) Based on this,
we do not read Pacific Palisade to preclude its application where other state laws are concerned. To
the contrary, we see it as an invitation to consider that issue and apply Pacific Palisade's reasoning
where appropriate.
Finally, the park contends that section 66474, part of the Map Act was not applicable under
section 66427 .2, which states: "Unless applicable general and specific plans contain definite
objectives and policies, specifically directed to the conversion of existing buildings into condominium
projects or stock cooperatives, ... [section 66474 and others not relevant here] shall not apply to
condominium projects or stock cooperatives, which consist of the subdivision of airspace in an
existing structure, unless new units are to be constructed or added."
This contention was raised without discussion or analysis of how it might apply here. For
instance, the park simply assumes, without citation to authority, that section 66427.2 applies to
mobilehom.e parks. We acknowledge that a mobilehome park might qualify under Civil Code section
4125, subdivision (b), which defines a condominium project as an undivided interest in the common
area of real property, along with a separate interest in space called a unit, whose boundaries are
included in a recorded final map. Even so, the park does not address why or whether the park's
proposed subdivision "consist[ s] of the subdivision of airspace in an existing structure, ... " (§
66427.2.) Nor does it explain why or whether the City's open space element fails to include the
requisite definite objectives and policies.(§ 66427.2.) We therefore deem the issue waived. (Santillan
v. Roman Catholic Bishop of Fresno (2012) 202 Cal.App.4th 708, 732 [136 Cal.iy,tr.3d 197].)
We alternatively affirm on t.lie merits of this issue. First, the City's open space element defines
the wetlands as the only open space area that required preservation as a habitat for plant and animal
life. In light of the City's findings concerning the environmental risks posed by the proposed
conversion (see Discussion, pt 6.1, post), the open space element's stated need to preserve the only
available open space is a specific enough directive as it arises exclusively hi the context of the
mobilehome grounds. The park does not suggest, and we do not believe, that anything more need be
said, at least on the facts of this case.
Second, applying section 66427.2 on these facts would conflict with several other provisions.
These include: section 664 74, subdivision ( e ), which requires the disapproval of a proposed
subdivision that poses a sufficient risk
Page 72
to the environment or fish and wildlife; section 65567, part of the General Plan scheme, which
prohibits subdivision approvals that conflict with a local open space plan; section 66498.6,
subdivision (b ), which prohibits disregard of state laws and policies when approving a vesting
tentative map; and MPROP, which requires compliance with local plans in order to obtain the public-
assistance financing that the park relies on to show that the proposed conversion will be affordable for
its low-income tenants. (Health & Saf. Code, § 50786, subd. (dX3).)
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In short, whatever application section 66427.2 might have here is outweighed by the competing
statutory and policy considerations requiring compliance with the City's open space element in order
to preserve that valuable resource. For the reasons set forth above, we therefore hold that local
agencies may deny a proposed mobilehome park subdivision that is inconsistent with the open space
element of their general plans. (1) We next consider whether the evidence in this case supports the
City's decision to do so.
6. Substantial Evidence Supports the City's Finding of Inconsistency With Its General
Plan Open Space Element
6.1 The City's Contentions
The abridged version of the City's open space findings goes like this: the wetlands, which are
the City's only open space, would be at risk from the proposed conversion to a common interest
ownership because the residents would become unwilling and unsuitable stewards of that natural
resource.
This conclusion was based on several factors. The open space element of the City's General
Plan identifies the wetlands as the City's only open space area that required preservation as a habitat
for plant and animal life. Abandoned oil wells were located near or within the wetlands.
Contamination from dwnping of oil by-products led to extensive litigation by the park against the
well operators and others in
Page 73 <
the mid-l 990s to recover its clean-up costs. The park settled that litigation and agreed to asswne
liability for future contamination. The wetlands serve as an outlet for several tributaries, which had
been the cause of past contamination and concomitant litigation. Future contamination from illegal or
accidental dumping ofhaz.ardous materials was still possible. Routine maintenance and general
upkeep of items such as flood gates and drains were costly. The wetlands were subject to a complex
scheme of state and federal regulations governing its maintenance. Residents were concerned about
the time and costs involved in maintaining the wetlands, as well as future liability for contamination,
and would be unable to meet their maintenance obligations or incur the costs required to do so if the
mobilehome park conversion were approved .
On appeal, the City relies on Dunex, Inc. v. City of Oceanside (2013) 218 Cal.App.4th 1158
[160 Cal.Rptr.3d 670] (Dunex) to support these contentions. The Dunex court considered the appeal
of a mobilehome park owner from Oceanside's denial of its application to convert to residential
ownership. The mobilehome park was located within the coastal zone and therefore subject to the
Coastal Act. The owner declined to provide an environmental report because the proposed subdivision
would result in no physical changes to the property. The mobilehome park was located in a flood
plain and one reason that Oceanside denied the application was its inconsistency with the city's local
coastal plan.
Based on Pacific Palisades, supra, 55 Cal.4th 783, the Dunex court held that the application
could be denied for inconsistency with Oceanside's local coastal plan. (Dunex, supra, 218
Cal.App.4th at pp. 1168-1169.) The court held that the city was warranted in finding that the proposed
subdivision was inconsistent with its local coastal plan, which required minimization of risks to life
and property in high flood areas. Even though the change in ownership would not add lots or create
any physical changes to the property, "the city could reasonably conclude that individual ownership
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would be an unacceptable increase in the risk to life and property because it would move the flood risk
to individuals far less able to either respond to or bear that risk than a single [mobilehome park]
owner." (Id at p. 1169) italics added, fn. omitted.)
The City contends that 1he Dunex rationale applies with equal force here because the evidence
shows an unacceptable increase in the risk to the open space habitat if the individual residents became
responsible for the wetlands, including its maintenance and any future contamination liability. The
park does not discuss this issue and we therefore deem it waived. (Taylor v. Nabors Drilling USA, LP
(2014) 222 C',al.A:gpAth 1228. 1247-1248 [166 Cal.Rptr.3d 6Jj)J.)
We alternatively conclude on the merits that the Dunex rationale applies here. First, this notion
finds support in l\1PROP, where the Legislature
Page 74
provided that ownership by public entities or nonprofits was appropriate for older mobilehome parks
whose residents "may collectively lack the experience or other qualifications necessary to
successfully own and operate their own parks" because they were more likely to be threatened by
physical deterioration. (Health & Saf. Code,§ 50780, subd. (a)(3).) Second, it is the logical extension
of our holding that Pacific Palisades exte!J.ds to mobilehome park subdivisions that violate the open
space element of a local agency's general plan. Transferring open space to unwilling guardians who
lack the resources to adequately protect it surely poses a meaningful risk to that land, especially in
light of the legislative mandate to strictly administer the open space laws. (§65561. subd (c).) We
next consider whether substantial evidence supports such a finding.
6.2 The Evidence Supports a Finding of Open Space Risk
A November 2003 environmental assessment report prepared at the request of the park's
lawyers identified three oil wells in and around the wetlands that were active until they were
abandoned and plugged in accordance with state law in 2002. Lab tests showed that residual
hydrocarbon contamination above regulated levels was still present at one of those wells.
The report said that oil drilling and related activities began in 1938, with photographs showing
"several oil derricks, mud pits, stock tanks and production equipment in the central and northern
portions of the site." That basic configuration continued into the 1980s, when the property was
converted into a mobilehome park. 1bree or more oil wells and associated drilling and production
equipment were on the site from 193 8 through 2002, and it v,ras possible that unreported "wildcat"
wells could be on or near the site. 00 Oil and gas wells "are potential concerns when they seep oil or
gas, and are not abandoned to current regulations, or have associated surface contamination. They
may also be associated with methane haz.ards."
The park's environmental report determined that the site's oil production history was a
recognized environmental concern under standard testing methods. That "means the presence or likely
presence of ha7.8rdous substances or petroleum products on a property under conditions that indicate
an existing release, a past release, or a material threat of a release of any
Page 75
hazardous substances or petroleum products .... " Although the report concluded the risks were not
significant, the park's status as a recognized environmental concern was ''not intended to" include de
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minimis conditions that generally do not present a material risk of harm to public health or the
environment and that generally would not be the subject of an enforcement action if brought to the
attention of appropriate governmental agencies." (Original italics.)
The City's 2011 resolution denying the park's application relied in part on Carson Harbor
Village, Ltd v. Unocal Corp. (9th Cir. 2001) 270 F.3d 863, to verify that the park had sued the well's
operators because of oil contamination in the wetlands . According to the Ninth Circuit, the park sued
the former well operators in federal court to recover approximately $285, 000 in costs incurred from
cleaning up lead and petroleum that covered an area measuring 75 feet wide, 170 feet long, and 5 feet
deep. (Id at pp . 868-869.) Andrew Vasquez, the secretary of the tenants' homeowners association,
testified at a 2011 public hearing that the park settled that action and agreed to "accept responsibility
for liability for contamination of the park." That testimony was never rebutted.l21
Documents prepared by the park show that the wetlands are regulated by both the state and
federal governments and is home to protected wildlife. A Department of Fish and Game questionnaire
filled out by the park in order to obtain permission to perform routine trash removai in the wetlands
affinned that the wetlands had been designated as "wild and scenic', under either state or federal law.
An August 7, 2006, letter from the park's lawyers to the City states that streambed maintenance was
performed in late June or early July ''to avoid disturbing the breeding season of protected wildlife."
The letter confirmed that the Department of Fish and Game "has primary oversight over the annual
cleanup.',
The draft Covenants, Codes & Restrictions (CCRs) that the park prepared as part of the ongoing
subdivision approval process states that the wetlands were federally protected and that the
homeowners association to be formed upon subdivision "may be obligated, from time to time, to
perform certain special maintenance of the Wetlands, which includes, but is not limited to, trash
removal, repair of flood control gates, removal of damaged trees and replacement of French drains.
The Association hereby affitms those obligations and intends that the City shall be a third party
beneficiary of said obligations."
Page 76
Photographs and written reports document the park's annual clean-up efforts in 2006 and 2007.
Approximately 250 trash bags were filled during the 2006 clean up. Photos from both years depict
vast amounts of refuse strewn throughout the wetlands, some on the ground, some in the water
impeding the flow through flood control gates. Annual maintenance costs were around $50, 000.
During a 2007 hearing, city planning staff member Sheri Repp-Loadsman reported that the park
owner had the marsh tested about 10 years earlier due to fears of possible contaminants entering from
upstream . Ufil Although the Regional Water Quality Control Board found no contamination, Repp.
Loadsman believed that the possibility remained because the wetlands accepted flow from other
sources.
Several park residents testified in 2011 abou(their reluctance to take on the responsibility of
maintaining the wetlands. In addition to homeowners association secretary Vasquez's testimony that
the park settled its earlier oil contamination lawsuit by agreeing to accept responsibility for
contamination, he also testified that "(n]o resident has the skill or specialized training to maintain a
state-protected wetlands." Vasquez wondered whether it was reasonable to "expect that mobile home
park residents can manage a complex and enormous wetlands" without the financial resources that the
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park had. Vasquez added that he could not afford the liability that might come from any future oil
contamination.
Park resident Louis Cogut testified that buying into the subdivision came with responsibility for
the common areas, including ''the foul aroma from that marsh." Park resident Martin Garcia testified
that the residents could not afford to buy or borrow money to fund a lot purchase. Long-time park
resident Ivan Gulligan testified that the park's decaying infrastructure, including the marsh, made
buying his lot undesirable. Park resident David White testified at a 2007 hearing that 65 percent of the
park's residents were low income~ including seniors on fixed in('.omes with high medical bills. Of
those residents voting on the proposed conversion, 65 percent also opposed it.
Instead of engaging in any meaningful discussion or analysis of the evidence on appeal, the park
simply restates some of the trial court's findings from the 2008 and 2013 mandate actions. As noted
earlier, we do not review the trial court's findings and our focus is instead on the evidence in the
administrative record. We therefore hold that the park has waived the substantial evidence issue. (In
re C.R. (2008) 168 Cal.App.4th 1387, 1393 [86 Cal.Rptr.3d 335].) We alternatively hold on the merits
that the City's open space risk findings are supported by substantial evidence.
Page 77
The evidence shows that the wetlands require extensive yearly maintenance, subject to
regulatory oversight by the state Department of Fish and Wildlife, as well as federal regulations. It has
a history of past oil contamination and, according to the park's 2003 environmental report,
contamination at one well remains above regulated levels. In addition, the report identifies the site's
past oil production activities as a recognized environmental concern, meaning it posed a material, not
de minimis, risk of harm to the environment. There is a possibility that other wells remain on the site.
When the park settled its action with well operators, it agreed to accept responsibility for oil
contamination. The CCRs for the proposed subdivision would place responsibility for the wetlands
directly on the individual lot owners throug...11 their homeowners association. The residents, nearly two-
thirds of whom are low income, are reluctant or unable to take on that administrative and :financial
liability. Combined with the facts that the wetlands are the only open space in the City and are home
to federally protected wildlife, questions concerning the residents' willingness and ability to tend to
this important natural resource supports the City's findings that the proposed mobilehome park
conversion was inconsistent with the open space element of its general plan(§ 66474, subd. (b)), and
would likely cause substantial environmental damage or substantially injure that habitat and the
creatures living there. (Id at subd. (e).) These :findings· are not necessarily offset by the prospect of the
homeowners association hiring a professional management company to oversee the park's day-to-day
operations. Once the City determined that the conversion would be inconsistent with the open space
element of the City's general plan, the City was required to reject the park's application.(§ 65567.)
DISPOSITION
The judgment is reversed and the trial court is directed to enter a new and different judgment in
favor of the City of Carson. Appellant shall recover its appellate costs.
Flier, J., concurred.
BIGELOW, P. J., Concurring and Dissenting:
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I concur in part and respectfully dissent in part.
I agree with the majority opinion's conclusion that the City of Carson (City) properly considered
the issue of whether Carson Harbor Village, Ltd.'s (the park) proposed conversion was inconsistent
with the City's general plan. As I indicated in Carson Harbor Village, Ltd. v. City of Carson
Page 78
(Mar. 30, 2010, B21l777) [nonpub. opn.], I do not read the mobile home park conversion statute (see
Gov. Code, § 66427.s)W to have established a stand alone process granting a park's residents a simple
veto by vote over a proposed conversion. Section 66427.5 added a preliminary step in the subdivision
process in the context of a mobile home park conversion to resident-owned spaces to address resident
displacement concerns, leaving in place the broader structure of the Subdivision Map Act (§ 66410 et
seq.). In Pacific Palisades Bowl Mobile &totes, LLC v. City of Los Angeles (2012) 55 Cal.4th 783
[149 Cal.Rptr.3d 383, 288 P.3d 717], the Supreme Court clarified that section 66427.5 did not strip
away California Coastal Act of 1976 (Pub. Resources Code,§ 30000 et seq.; Coastal Act) and Mello
Act jurisdiction over land use matters involving a proposed mobilehome park conversion. By parity of
reasoning, I would find that section 66427.5 does not displace a subdivider's obligation to comply
with the requirements of a city's general plan. (See § 65300 et seq.) As the majority notes, a city's
general plan acts much like a land use constitution, governing future land use decisions within its
jurisdiction. (Lesher Communications, Inc. v. City of Walnut Creek (1990) 52 Cal.3d 53 t', 540, 542
[277 Cal.Rptr. 1, 802 P.2d 317].) I see no reason that a general plan ought to be afforded less
importance than the Coastal or Mello Acts.
I depart with the majority opinion in its conclusion that substantial evidence supports the City's
determination that the park's proposed conversion is inconsistent with the City's general plan. The
"open space" element (see§ 65560 et seq.) of the City's general plan is the only contested issue in the
current case. As relevant to the current case, the City's "Open Space and Conservation Element" of its
general plan reads as follows: "The Government Code requires that open space for the preservation of
natural resources be incorporated into the· General Plan. Such resources include areas required for the
preservation of plant and animal life, areas of ecological and other scientific study value, rivers,
streams, bays and estuaries, coastal beaches, and lake shores. The only such area identified within
Carson is the lake within the Carson Village Mobilehome Park. This lake, covering approximately 17
acres, provides habitat for a variety of plants and small animals."
In my view, the issue is whether the park's proposed conversion will damage or endanger the
lake, with its habitat for a variety of plants and small animals. I see no evidence in the record to
support a conclusion that a change in the structure of the ownership of the park -from a landlord,
single owner (a limited partnership) to a collective of individual owners with a managing
homeowners' association -will harm the lake. A mobile home park with a lake was present before
conversion and will still be present after conversion. The change in identity of the owner of the
property, which is all that is truly at issue here, has not been shown to pose a danger to the lake .
Page 79
The majority opinion concludes that substantial evidence supports the City's finding that there
would be a risk to the lake "because the residents would become unwilling and unsuitable stewards"
of the lake. (Maj . opn., ante, at p. 72.) The ensuing discussion which follows, however, focuses on the
environmental conditions of the lake, i.e., the physical problems and potential problems attendant
with the lake. For example, the majority discusses trash, ongoing maintenance needs, and the future
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potential need for remedial measures in the event of a contamination incident arising from capped oil
wells in the area. However, the critical issue in this case is the management of the lake property. That
is, whether there is evidence that the physical condition,, of the lake are only capable of being
properly managed with the existing single-owner structure in place, as opposed to a homeowners
association after conversion. I do not see any such evidence. There is no evidence in the record to
support a conclusion that the park's residents acting through a homeowners association would be less
suitable stewards of the laJc:e property than the cmrent landlord, single owner of the property, or that
the City would incur more difficulties in compelling needed environmental remedial measures against
numerous individual owners acting through a homeowners association than it would against a
landlord, single-owner of the property.
I acknowledge that Dunex, Inc. v. City o/Oceanside (2013) 218 Cal.Aru>.4th 1158 [160
Cal.Rptr.3d 670] (Dunex) supports the majority's opinion, but I am not convinced. Dunex offers no
discussion of any evidence supporting its conclusion that a change from a landlord, single-owner
structure to a homeowners association, multiple-owner structure poses a risk to open space. Dunex
seems simply to accept that a city may find that individual owners of a mobilehome park will not be
as good citizens as a prior landlord, single-owner had been. If Dunex is stating that the individual
owners of a mobile home par.le will not have the :financial resources to respond to problems as the
prior landlord, single owner did, its conclusion is based on speculation as to the financial condition of
the prior landlord owner. There is no evidence cited in Dunex actually showing the :financial ability of
anyone to address environmental problems. In the absence of evidence that a homeowners association
would be less responsible, and or have less resomces in matters of property management than a
landlord, single owner of a property, I would affirm.
The only evidence in the record here concerning the management of the lake property is that the
current owner undertook clean-up efforts in 2006 and 2007, and that annual maintenance costs are
around $50, 000. It is undisputed that there are 420 spaces in the park. Thus, the annual maintenance
costs divided amongst residents would be approximately $120, or about $10 per month. I would not
find the imposition of $10 per month in maintenance costs to support a conclusion that the
management of the park will be harmed in the future.
Page 80
I would affirm the trial court's judgment directing the City to approve the park's application to
convert its mobile home park from a rental facility into a subdivision of resident-owned lots with a
homeowners association.·
Notes:
Ul All further undesignated section references are to the Government Code.
Ill Although the parties' primary focus has been on issues related to the extent of tenant support for the proposed
conversion, our decision is based solely on the open space issue under the City's general plan. We therefore discuss the
tenant support issues only briefly.
l.Jl As we set forth in part S of our Discussion, we were wrong. (See fn. 7, post.)
~ The statute was amended in 2013 to provide that the local agency may deny a subdivision application if less than half
the residents approve of the conversion.(§ 66427.5, subd. (dXS).) Therefore, if the City were to consider the application in
the first instance today, it could deny it based solely on the most recent tenant survey results. The City contends that we
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can and should apply this new provision on appeal. However, we held in 218 Properties, supra, 226 Cal .APP.4th 182 that
the City could not do so. (Id at p. 194, fn. 7.) In any event, because we reverse on another ground we need not revisit that
issue.
~The actual availability of those funds in light of the state's recent budget problems was in dispute.
lfil This conclusion canies extra weight in light of Health & Safety Code section 50786.
[!]Reporter's Note: Review granted on December 1, 2010, S187243. On November 29, 2012, the Court of Appeal opinion
was affinned. For Supreme Court opinion, sec 55 Cal.4th 783.
121 By doing so we acknowledge that we were wrong to hold otherwise in Carson Harbor/, supra, 8211777. Presiding
Justice Bigelow's dissent in that case pointed out that section 66427.S was merely a "preliminary step in the subdivision
process in the context of a mobilehome park conversion, adding a special hearing on the limited issue of resident
displacement under the section as a whole, apart from the normally followed processes for approval of a tentative map
[citation] and approval ofa final map [citation]. I do not believe that section 66427.S, subdivision (e), was intended to
eliminate the broader structure of the Subdivision Map Act vis-l-vis a tentative map and a fmal map, and the approval of
the same .... As I read the statutes, once a subdivider and local agency have fmished the required hearing to determine
compliance with section 66427.S, the now-deemed compliant infonnational materials. are ready for the tentative map
approval process ." (Carson Harbor I. supra, B211777 .) As we read Pacific Palisades, she was correct.
m The existenee of other wells was confinned in the City's 2012 environmental report, which said that there were 13
abandoned wells on the property dating back to the 1920s. Some of those were plugged with wood or stove pipe casmg.,.
That report was prepared for the court-ordered 2012 hearing on the bona tides of the park 's conversion application and
therefore was not a basis for the 2011 City finding that the proposed subdivision was inconsistent with its open space plan.
Because we limit our analysis to the open space issue, which was decided by the City in only its 2011 reso lution , the 2012
expert evidence plays no part in our analysis.
l2J It also appears that despite the park owner's financial resources and legal representation, the park owner was unable to
recover his clean-up costs from the well operators under federal law because he failed to comply with its complex
requirements . (Carson Harbor Village v. County of Los Angeles (9th Cir. 2006) 433 F.3d 1260. applying CERCLA, the
Comprehensive Environmental Response, Compensation, and Liability Act of 1980, 42 U.S.C.S. § 9601 et seq.)
U.!!J The park contended in its federal court action for contamination from dumping oil by-products that certain government
agencies were also liable for lead on the property that resulted from contaminated stonn water runoff. (Carson H(ll'bor Vil/.
v. Unocal Corp., supra, 270 F.3d at p. 869.)
W All further statutory codes are to the Government Code .
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!
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California Government Code 1 65589. Construction of article. Page 1 of I
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CALIFORNIA CODES
CALIFORNIA GOVERNMENT CODE
Title 7. PLANNING AND LAND USE
Division 1. PLANNING AND ZONING
Chapter 3. LOCAL PLANNING
Article 10.6. Housing Elements
Current through the 2016 Legislative Ses~·ion
M65589. Construction of article
(a) Nothing in this article shall require a city, county, or city and county to do any of the
following :
( 1) Expend local revenues for the construction of housing, housing subsidies , or land
acquisition.
(2) Disapprove any residential development which is consistent with the general plan.
(b) Nothing in this article shall be construed to be a grant of authority or a repeal of any authority
which may exist of a local government to impose rent controls or restrictions on the sale of
real property.
( c) Nothing in this article shall be construed to be a grant of authority or a repeal of any authority
which may exist of a local government with respect to measures that may be undertaken or
required by a local government to be undertaken to implement the housing element of the local
general plan.
( d) The provisions of this article shall be construed consistent with, and in promotion of, the
statewide goal of a sufficient supply of decent housing to meet the needs of all Californians.
Cite as Ca. Gov. Code M 65589
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EXHIBITE
Filed 6nl16; part. pub. order 7/l/16 (see end of opn.)
IN TIIE COURT OF APPEAL OF TIIE STAIB OF CALIFORNIA
FIFTII APPELLAIB DIS1RICT
NARAGHI LAKES NEIGHBORHOOD
PRESERVATION ASSOCIATION,
Plaintiff and Appellant,
v.
CITY OF MODESTO,
Defendant and Respondent;
BERBERIAN HOLDINGS, L.P .,
Real Party in Interest and Respondent.
F071768
(Super. Ct. No. 2006259)
OPINION
APPEAL from a judgment of the Superior Court of Stanislaus County. Frank
Dougherty, Judge. (Retired Judge of the Merced Super. Ct. assigned by the Chief Justice
pursuant to article VI, § 6 of the Cal. Const.)
Law Office of Donald B. Mooney and Donald B. Mooney for Plaintiff and
Appellant.
Meyers, Nave, Riback, Silver & Wilson and Edward Grutzmacher for Defendant
and Respondent.
Downey Btand and Donald Sobelman for Real Party in Interest and Respondent.
-ooOoo-
Following the approval by the City of Modesto (the City) ofa shopping center
project (the project) that would be adjacent to an established residential neighborhood,
Naraghi Lakes Neighborhood Preservation Association (appellant) filed a petition for
writ of mandate challenging the approval of the project. Appellant claimed the City
failed to follow the City of Modesto Urban Area General Plan (the General Plan), and did
not adequately comply with certain requirements of the California Environmental Quality
Act (CEQA).1 The trial court denied the writ petition and entered judgment in favor of
the City. Appellant appeals, contending the project was improperly approved and the
petition should have been granted because, allegedly, (1) the project was inconsistent
with the General Plan regarding the size of neighborhood shopping centers, (2) the City
failed to make findings necessary under the General Plan's rezoning policy, (3) the City
failed to comply with CEQA because the environmental impact report (EIR) improperly
rejected feasible mitigation measures as to traffic impacts, and ( 4) no substantial evidence
supported the City's CEQA findings regarding urban decay and the statement of
overriding considerations. Having reviewed appellant's contentions in light of the entire
record, we are unable to conclude that the City prejudicially abused its discretion on any
of the grounds raised. Accordingly, the judgment of the trial court is affirmed.
FACTS AND PROCEDURAL HISTORY
The Project Description
The project proposed by real party in interest Berberian Holdings, L.P. (real party)
is the construction of a new shopping center on approximately 18 acres of vacant land
situated in northeast Modesto. The new shopping center, as proposed, will include
1 CEQA is found at Public Resources Code section 21000 et seq.
Unless otherwise indicated, all further statutory references are to the Public Resomces
Code.
CEQA's policies are implemented through regulations known as the CEQA Guidelines
(Guidelines) found at California Code of Regulations, title 14, section 15000 et seq.
2.
approximately 170,000 square feet of floor area, with a grocery store serving as the
anchor tenant. The proposed site of the project is two contiguous parcels, one 12 acres in
size and one six acres in size, bounded by Sylvan Avenue (north), undeveloped land and
a storm water detention basin (south), Oakdale Road (east) and Hashem Drive (west).
The completed project (i.e., the new shopping center) as proposed by real party will have
two large buildings, one that is 78,290 square feet and another that is 66,230 square feet,
each of which will be partitioned into spaces for various tenants. The smaller building is
planned to include a 51, 730 square foot area for the anchor grocery store tenant. Four
freestanding pad buildings, ranging in size from 4,200 square feet to 7 ,670 square feet,
are also part of the overall project. The project calls for 816 parking spaces.
An established residential neighborhood borders the project site on the west side
along Hashem Drive. The project will provide an eight-foot tall masonry wall with a
decorative cap along the west and south property lines. A 16-foot wide landscaped
planter on the west side of the masonry wall will provide a further buffer between the
development and the residences to the west. The project will be required to provide
layered landscaping, shrubs and ornamental trees in the 16-foot wide planter area.
The project necessitates a General Plan Amendment to redesignate the project site
from Mixed-use (MU) and Residential (R) zoning to Commercial (C), and to rezone the
same property from Planned Development Zone P-0(211) to a new Planned
Development Zone, to allow development of a shopping center.
General Plan's Neighborhood Plan Prototype (NPP)
There is no dispute that the project site is located within an area covered by the
NPP policies of the General Plan. The General Plan, at chapter III, part C, paragraph 2,
explains the purpose of the NPP policies as follows: "The [NPP] was developed in 1974
to provide a 'blueprint' for development of future residential neighborhoods. The [NPP]
is designed to creat residential areas served by neighborhood parks, elementary schools,
a neighborhood sho ping center, and a collector street pattern connecting these uses . The
3.
[NPP] is a model for: subdivision designs > location of parks and other C".apital facilities,
and zoning and pre-zoning studies. As of the baseline year of 1995, much of the Baseline
Developed Area has been developed according to this Prototype. [~ Within the
Modesto community, 'Neighborhoods' are typically one mile by 3/4 mile (approximately
480 acres in size), and bordered by Arterial streets or Expressways."
The General Plan's NPP provisions then go on to describe the various policies that
are applicable to the subject neighborhoods. After stating policies relating to housing
types and the location of elementary schools and parks within each neighborhood, the
NPP policies call for a neighborhood shopping center, described as follows: "A 7-9 acre
neighborhood shopping center, containing 60,000 to 100,000 square feet of gross leasable
space, should be located in each neighborhood. The shopping center should be located at
the intersection of two Arterial streets, as shown in Figure ill-2." (General Plan, ch. III,
part C, § 2, ~ d,)
The Site's Entitlement History
The same site has been approved for commercial development as a shopping
center on two occasions prior to the instant project. Historically, the zoning for that
location has been P-D(211 ), which allows condominium apartments and cluster houses.
In 1981, the City approved a rezoning of the 12-acre parcel2 to allow for the development
of a shopping center at the comer of Sylvan Avenue and Oakdale Road. When that
project did not get developed, the zoning was returned back to P-0(211). In 1987, the
City again approved a request to rezone the 12-acre parcel for a shopping center
development. When the planned shopping center did not proceed within the time limit
for development, the City repealed the zoning changes and returned the zoning to
P-D(211). The two shopping center entitlements previously approved (in 1981and1987)
2 Recall that the entire project site is 18 acres, consisting of two vacant parcels, one of
12 acres and one of six acres. The past entitlements involved the 12-acre parcel only.
4.
for this site entailed proposed developments that were approximately 12 acres in size
with approximately 80,000 square feet of leasable space.
Real Party's Initial Application and City's Initial Environmental Study
In November 2011, real party submitted an application to obtain necessary
approvals for the proposed project. As noted above, the project set forth in real party's
application consisted of a shopping center development on the 18-acre site at the comer
of Sylvan Avenue and Oakdale Road, including approximately 170,000 square feet of
leasable space with a grocery store as the anchor tenant. The completed shopping center
would be called The Marketplace. It would also include an eight-foot tall wall and
landscaping as a buffer on the western side of the shopping center along Hasham Drive.
Additionally, an integral part of the project was a General Plan amendment to redesignate
the project site from Mixed-use (MU) and Residential (R) to Commercial (C) and to
rezone the same property from Planned Development Zone, P-0(211) to new Planned
Development Zone (P-D) to allow development of a shopping center on the project site.
On May 11, 2012, the City released the results of an initial study, which reported
that the Project was within the scope of the General Plan master EIR (MEIR) and that,
pursuant to CEQA, no additional environmental review was required. The initial study
concluded that the project would have no significant effects on the environment and was
consistent with the General Plan and the MEIR. Regarding traffic impacts, the initial
study 'included a traffic study prepared by the engineering firm ofKimley-Hom &
Associates (the first traffic study).
The project was first brought before the City of Modesto Planning Commission
(the Planning Commission) on August 6, 2012, and testimony was received. A second
hearing before the Planning Commission took place on September 17, 2012. Appellant
and individual residents of the neighborhood nearby the project site submitted letters
stating their concerns or objections to the project due to apparent adverse impacts on the
environment such as urban decay, traffic, noise, and General Plan inconsistency. The
5.
Planning Commission recommended approval of the project by the city council, and a
public hearing before the city council was set for October 23, 2012.
On October 23, 2012, appellant submitted a detailed comment letter to the city
council, setting forth purported deficiencies in the City's and/or the planning staff's
assessm.ent ofth.e project's impacts. Appellant asserted that the project created
significant traffic, noise, urban decay, General Plan inconsistency and other
environmental impacts. In addition, appellant submitted a peer-reviewed traffic
memorandum, prepared by VRP A Technologies, which asserted that the first traffic study
used incorrect methodologies to measure traffic impacts. VRPA's memorandum asserted
that when the proper methodology was used, there were unmitigated traffic impacts of a
significant nature at several intersections. The city council ultimately continued the
public hearing to January 8, 2013.
On January 3, 2013, real party submitted a letter to the city council,
acknowledging that the most efficient course of action would be to prepare a project EIR,
since that process would allow the issues .raised in appellant's letter to be analyzed and
put to rest. The project application was taken off of the city council's meeting agenda
and theEIR.process fonruilly began with the notice of preparation on February 4, 2013.
The EIR Process and Project Approval
The draft EIR (DEIR) was completed on June 19, 2013, and a public comment
period commenced on June 20, 201~, and continued through August 5, 2013. The DEIR
included a new, much more extensive traffic analysis. Based on that analysis, the DEIR
acknowledged the existence of significant traffic impacts that were allegedly unavoidable
at several intersections and roadway segments near the proposed project. The City
received only three comment letters on the DEIR, two from public agencies and one from
appellant Appellant's comment letter included a memorandum from its traffic consultant
pointing out that the DEIR's analysis ()ftraffic impacts had misapplied certain of the
City's thresholds of significance. The City apparently agreed because it promptly revised
6.
the traffic report and the relevant sections of the DEIR and issued a recirculated DEIR
(RDEIR) for public comment from August 26 to October 10, 2013. The City received
only three comment letters on the RDEIR, the same three as before. Appellant submitted
a comment letter concerning the RDEIR, outlining alleged deficiencies in the RDEIR's
analysis of impacts, alternatives and mitigation measures. The City responded to all
comment letters received on both the DEIR and RDEIR in the final EIR (FEIR).3
On November 18, 2013, after nine months of work on the EIR, the project
returned to the Planning Commission. Testimony was received at the hearing.
Appellant's attorney spoke against the project, emphasizing the significant impacts on
traffic that would not be adequately mitigated and General Plan inconsistency, among
other things. The Planning Commission believed the concerns expressed by appellant
were adequately addressed in the BIR. At the conclusion of the ·hearing, the Planning
Commission adopted resolutions recommending that the city council certify the EIR and
approve the project.
On December 10, 2013, the city council held its first public hearing on the EIR
and the project. Appellant submitted written objections to the project, including
challenges to the EIR's conclusions regarding infeasibility of certain mitigation measures
as to traffic impacts. At the conclusion of the hearing, the city council closed the public
hearing and continued consideration of the EIR and project 'to allow staff time to review
appellant's recent submittal to ensure that the EIR had fully and adequately analyzed all
environmental impacts.
We note that the EIR in this case followed a standard organizational approach that
sought to address all of the necessary issues. Among other things, it described the
3 Unless otherwise indicated, the term EIR refers to the FEIR, which is understood to
include and incorporate (1) the DEIR and the RDEIR, (2) all comments received, (3) the City's
responses to comments or points raised in the review process, and ( 4} any other infonnation
added by the City. (Guidelines,§ 15132.) We sometimes refer to the FEIR or DEIR separately,
when it is helpful or convenient to do so.
7.
project, summarized the potentially significant environmental impacts, discussed
development alternatives to the project, and analyzed mitigation measures, including a
delineation of which measures were feasible and which were infeasible. Further, the EIR
in this case included a detailed description of the project's traffic impacts at several
intersections and roadway segments that would be significant impacts but mitigation
would allegedly be infeasible. The BIR also purported to explain why the project, despite
its size, was in harmony with the policies of the General Plan.
On January 7, 2014, the city council adopted resolutions Nos. 2014-16 through
2014-18, certifying the BIR and making necessary project approvals. The city council
also conducted the first reading of ordinance No. 3597-C.S., which was approved on the
consent calendar at the January 14, 2014, city council meeting. The approvals included
certification of the BIR and other CBQA findings, approval of the project application, and
amendment to the General Plan and zoning. The City posted a notice of detennination
regarding the project on January 8, 2014.
Petition for Writ of Mandate
On February 6, 2014, appellant filed its verified petition for writ of mandate and
complaint for declaratory relief (the petition) in the trial court. On March S, 2015, after
full briefing on the issues and a hearing, the trial court denied the relief sought in the
petition. In its written order, the trial court reviewed the record and rejected each of
appellant's claims. No abuse of discretion was found by the trial court. Judgment was
entered in favor of the City and real party, and against appellant, on March 30, 2015.
This appeal followed.
DISCUSSION
L General Plan Consistency
Appellant argues the project was in conflict with the General Plan in several key
respects and that, consequently, the City abused its discretion in approving the project.
Among the claims of General Plan inconsistency, appellant argues that the project did not
8.
comply with the NPP policy regarding the size of the shopping center, and that certain
mandatory findings necessary to rezoning of the site were not made. We begin by
summarizing the applicable law and the standard of review relating to challenges based
on alleged General Plan inconsistency.
A. Applicable Law and the Standard of Review
A city must adopt a "comprehensive, long-term general plan,, for its physical
development. (Gov . Code,§ 65300.) The general plan serves as a "'charter for future
development,,, and contains the city's fundamental policy decisions about such
development. (Federation of Hillside & Canyon Assns. v. City of Los Angeles (2004) 126
Cal.App.4th 1180, 1194.) The policies in a general plan typically reflect a range of
competing interests . (Ibid ; Save Our Peninsula Committee v. Monterey County Bd. of
Supervisors (2001) 87 Cal.App .4th 99, 142 (Save our Peninsula).) "General plans
ordinarily do not state specific mandates or prohibitions. Rather, they state 'policies ,'
and set forth 'goals."' (Napa Citizens for Honest Government v. Napa County Bd. of
Supervisors (2001) 91 Cal.App.4th 342, 378 (Napa Citizens).) Nevertheless, a city's land
use decisions must be consistent with the policies expressed in its general plan. (Citizens
of Goleta Valley v. Board of Supervisors (1990) 52 Cal.3d 553, 570; Lesher
Communications, Inc. v. City of Walnut Creek(I990) 52 Cal.3d 531, 536; Friends of
Lagoon Valley v. City of Vacaville (2007) 154 Ca1App .4th 807 ,. 815 (Friends of Lagoon
Valley); Gov. Code, § 65860 .) "'[T]he propriety of virtually any local decision affecting
land use and development depends upon consistency with the applicable general plan and
its elements ."' (Citizens of Goleta Valley v. Board of Supervisors, supra, at p. 570.)
The rule of general plan consistency is that the project must at least be compatible
with the objectives and policies of the general plan. (Sequoyah Hills Homeowners Assn.
v. City o/Oakland (1993) 23 Cal.App.4th 704, 717-718 (Sequoyah Hills); Friends of
Lagoon Valley, supra, 154 Cal .App.4th at p. 817.) "[S]tate law does not require precise
conformity of a proposed project with the land use designation for a site, or an exact
9.
match between the project and the applicable general plan. [Citations.] Instead, a finding
of consistency requires only that the proposed project be 'compatible with the objectives,
polices, general land uses, and programs specified in' the applicable plan. [Citation.]
The courts have interpreted this provision as requiring that a project be '"in agreement or
harmony with"' the terms of the applicable pl~ not in rigid conformity with every detail
thereof." (San Franciscans Upholding the Downtown Plan v. City and County of San
Francisco (2002) 102 Cal.App.4th 656, 678 (San Franciscans).) To reiterate, the
essential question is "whether the project is compatible wi~ and does not frustrate , the
general plan's goals and policies." (Napa Citizens, supra, 91 Cal.App.4th at p. 378.)
As has been accurately observed by one court: "It is beyond cavil that no project
could completely satisfy every policy stated in [a city's general plan], and that state law
does not impose such a requirement. [Citation.] A general plan must try to
accommodate a wide range of competing interests ... and to present a clear and
comprehensive set of principles to guide development decisions. Once a general plan is
in place, it is the province of elected city officials to examine the specifics of a proposed
project to determine whether it would be 'in harmony' with the policies stated in the plan.
[Citation.] It is, emphatically, not the role of the courts to micromanage these
development decisions. Our function is simply to decide whether the city officials
considered the applicable policies and the extent to which the proposed project conforms
with those policies, whether the city officials made appropriate findings on this issue, and
whether those findings are supported by substantial evidence. [Citations.]" (Sequoyah
Hills, supra, 23 Cal .App.4th at pp. 719-720.)
Where, as here, a governing body has determined that a particular project is
consistent with the relevant general plan, that conclusion carries a strong presumption of
regularity that can be overcome only by a showing of abuse of discretion. (Friends of
Lagoon Valley, supra, 154 Cal.App.4th at p. 816; Napa Citizens, supra, 91 Cal.App.4th
at p. 3 57; Sequoyah Hills, supra, 23 Cal.4th at p. 717 .) "We may neither substitute our
10 .
view for that of the city council, nor reweigh conflicting evidence presented to that
body." (Sequoyah Hills, supra, at p. 717.)
Moreover, judicial review of consistency :findings is highly deferential to the local
agency. (F~iends of Lagoon Valley, supra, 154 Cal.App.4th at p. 816.) "[C]ourts accord
great deference to a local governmental agency's determination of consistency with its
own general plan, recognizing that 'the body which adopted the general plan policies in
its legislative capacity has unique competence to interpret those policies when applying
them in its adjudicatory capacity. [Citations.] Because policies in a general plan reflect a
range of competing interests, the governmental agency must be allowed to weigh and
balance the plan's policies when applying them, and it has broad discretion to construe its
policies in light of the plan 's purposes . [Citations .] A reviewing court's role "is simply
to decide whether the city officials considered the applicable policies and the extent to
which the proposed project conforms with those policies." [Citation.]"' (San
Franciscans, supra, l 02 Cal.App.4th at pp. 677-678, quoting from Save Our Peninsula,
supra, 81 Cal .App.4th at p. 142.)
In our review of the City's consistency :findings in this case, our role is the same as
that of the trial court; we independently review the City's actions and are not bound by
the trial court's conclusions. (Napa Citizens, supra, 91 Cal.App.4th at p. 357.) In
applying the substantial evidence standard, we resolve reasonable doubts in favor of the
City's finding and decision. (Ibid.) The essential inquiry is whether the City's fmding of
consistency with the General Plan was "reasonable based on the evidence in the record."
(California Native Plant Society v. City of Rancho Cordova (2009) 172 Cal.App .4th 603,
637 .) "(A]s long as the City reasonably could have made a determination of consistency,
the City's decision must be upheld, regardless of whether we would have made that
determination in the first instance." (Id. at p. 638.) Generally speaking, the
detennination that a project is consistent with a city's general plan will be reversed only
if the evidence was such that no reasonable person could have reached the same
11.
conclusion. (San Franciscans, supra, 102 Cal.App.4th at p. 677; accord, San Diego
Citizenry Gro-up v. County of San Diego (2013) 219 Cal.App.4th 1, 26 (San Diego
Citizenry Group).)
B. NPP Policies
.Appellant first of all asserts that the project violates the ~'PP policies of the
General Plan. The NPP policy provision at issue relates to the need for local shopping
centers in the neighborhoods to which the NPP applies, and provides as follows: "A
7-9 acre neighborhood shopping center, containing 60,000 to 100,000 square feet of gross
leasable space, should be located in each neighborhood." The same policy provision
states that the shopping center "should be located at the intersection of two Arterial
streets, as shown in Figure ill-2."
We begin our consideration of this issue by noting how the City interpreted this
General Plan policy in the proceedings below. The position taken by the City planning
staff throughout the project review process, which was expressly adopted by the City in
its findings approving the project, was that the project was consistent with the General
Plan, including the NPP policies. The City concluded the project was consistent with the
NPP policies because the project (I) provided for a neighborhood shopping center and
(2) was properly located at an intersection of arterial streets. Further, while it was
acknowledged that the project was larger than the neighborhood shopping center
described in the NPP policies, the City understood that the depictions set forth therein
were meant to provide guidance in the orderly development of neighborhoods, but were
not mandatory limitations on the size of shopping centers. In support of this flexible
interpretation, it was noted by staff in the proceedings before the Planning Commission
and the city council that several other shopping centers had been approved by the City
that exceeded the NPP policy's acreage and square footage descriptions. As one staff
report states: "It should be noted that since these policies were adopted, the City has
approved eight neighborhood shopping centers that exceeded the size called for hi this
12.
policy, and in each case the City found the project consistent with the General Plan." It
was also noted by staff that for many years the market trend in grocery stores has been
for higher square footage, which was represented by the developer to be more
economically viable.
In the instant appeal, appellant disagrees with the City's flexible interpretation and
takes the position that all of the policies and descriptions set forth in the NPP should be
treated as mandatory development standards. Appellant emphasizes that the project at
hand is double the acreage amount and 70,000 square feet above the total leasable space
contemplated in the NPP . Further, appellant points out that the City did not update the
wording of the NPP in either 1995 or 2008, the two most recent occasions on which the
City updated its General Plan and, therefore, any attempt to dismiss the NPP as being an
outmoded relic in need of updating does not comport with the City's conspicuous failure
to revise it Additionally, appellant argues the City's position that shopping center
developments larger than what is depicted in the NPP have routinely been approved by
the City is flawed, because not all of the referenced shopping centers were in areas
covered by the NPP policies. Finally, appellant argues that if the policies in the NPP
were simply flexible goals to guide development, there would be no need for
paragraph (f) of the NPP policies, which provides for minor adjustments to accommodate
existing development in an area.
The City and real party (together respondents) have filed a joint respondents' brief
in the instant appeal. Respondents insist that the NPP policy's enumerations of acreage
and leasable square footage when describing a prototypical neighborhood shopping
center were not meant as rigid development mandates, but rather were flexible
descriptions to provide a basic model or pattern to guide the future development of the
applicable neighborhoods . 4 Respondents argue that the project, although bigger than the
4 We note that the subject NPP policy, which states that a "7-9 acre neighborhood
shopping center" containing "60,000 to 100,000 square feet of gross leasable space" should be
13.
shopping center depicted in the NPP. was essentially compatible with its main goals of
providing a needed neighborhood shopping center at the intersection of two arterial
streets.
In support of their position, respondents rely on the plain language of the NPP
policies as well as the City's history or past practice of flexibly interpreting the NPP
policies. As to the NPP's wording, the terms "prototype" and "model" are used in the
NPP to describe its overall purpose, which reasonably suggests that the policies stated
therein were intended to provide a guiding pattern or a model for future development of
applicable neighborhoods. Indeed, the NPP expressly states that it is "a model for:
subdivision designs, location of parks and other capital facilities, and zoning and pre-
zoning studies,'' and a "'blueprint' for development of future residential neighborhoods."
Further, the NPP states that it was "designed to create residential areas served by
neighborhood parks, elementary schools, a neighborhood shopping center, and a collector
street pattern connecting these uses." As the City planning staff put it in the proceedings
below, "the policies were developed with the intent to provide guidance on how to
arrange or lay out land uses in a neighborhood ." Additionally, the use of the word
"should" in the vast majority of the NPP policies, including the policy at issue in this
appeal, while the mandatory term "shall'' was used in one instance not applicable to this
case, provides a reasonable basis for the more flexible construction of the acreage and
square footage provision, as urged by respondents. s Based on the foregoing
observations, we conclude that the wording of the NPP is reasonably consistent with the
interpretation given to it by the City. Of course, we are required to accord "great
located in "each neighborhood'' is not overtly phrased in terms of a mandatory cap or limitation.
Thus, it may simply be a descriptive estimate of the usual or typical size of such a shopping
center. Such a possibility fits the more flexible approach adopted by the City, with the City
presumably having discretion to approve bigger or smaller centers when deemed advisable.
5 Paragraph (g) of the NPP policies states a mandatory requirement: "If the expressway is
a Class A expressway, there shall be no Collector streets intersecting with the expressway."
Virtually all of the remaining policy statements use the word "should."
14.
deference" to the City's interpretation of its own General Plan. (Save Our Peninsula,
supra, 81 Cal.App.4th at p. 142.)6
Appellant replies that the "[m]inor adjustments" clause in paragraph (f) of the NPP
policies indicates strict compliance should be required as to all policy terms, including
the size descriptions for neighborhood shopping centers. We think appellant reads too
much into that provision, which states in full that ''Minor adjustments to the [NPP] can be
made to accommodate existing development in an area." The provision is narrowly
focused on what to do about existing development in an area. On that issue, it simply
allows the City to work around existing uses or conditions on the ground; that is, it may
make minor adjustments to accommodate for the same. Contrary to appellant's
suggestion, the provision does not address the broader concern of whether to make all
other NPP policies mandatory and binding limitations.
In addition to the plain wording of the NPP policies, respondents assert that "[t]he
City's past practices also demonstrate the City's consistent construction of the NPP
Policies as providing guidance to infonn development, not inflexible mandates ... [since]
[t]here are multiple examples of the City's approval of shopping center projects that
exceed the prototype in either acreage, square footage, or both." Respondents appear to
be correct on this point. The two previous entitlements approved at the project site in
1981 and 1987 went substantially beyond the total acreage described in the prototype,
each seeking to utilize 12 gross acres. The Lakes shopping center is located in an area
covered by the NPP policies, and it exceeded the square footage parameters by 4,000
square feet. Other examples identified by respondents and mentioned in the record
include the Standiford Square shopping center (at 10.22 acres and 112,579 sq. ft .), the
6 We are not suggesting that the framing of the NPP in tenns of policies and goals (i.e .,
using the word "should"), rather than as rigid mandates, renders them merely advisory in nature.
The test of compatibility still applies. (Napa Citizens, supra, 91 Cal.App.4th at p. 378.)
Nevertheless, in deciding on the question of compatibility, we believe the nature and flexibility
of the policy under consideration are important factors.
15.
Dry Creek Meadows shopping center (at 11.25 acres and 112, 146 sq. ft.), and Wood
Colony Plaza (at 13.76 acres and 171,171 sq. ft.), the latter being larger than the project
in total square footage. 7
Appellant counters that at least two of the prior shopping center developments
referenced by the City staff in the proceedings below (i.e., the Crossroads shopping
center and Village Center) were not subject to the NPP policies. Respondents do not
respond to appellant's objection as to Village Center, but argue that the NPP policies
would have been applicable to the Crossroads shopping center because it was approved
and constructed prior to the City's establishment of the Redevelopment Planning District
in that location. We think that uncertainty remains regarding these two challenged
examples. Nevertheless, this discrepancy noted by appellant only relates to a part of the
overall record and is insufficient to undo the remainder of the evidence on this point.
Even if the disputed examples are not counted, there is still sufficient substantial evidence
in the record to confirm respondents' position that there has been a consistent practice to
treat the acreage and square footage description in the NPP policy as a flexible guide to
neighborhood development, rather than a strict limitation on the size of sho_pping
centers.8
As we summarized above, general plan consistency may be found where a project
is compatible with, and does not frustrate, the general plan's goals and policies. (Napa
Citizens, supra, 91 Cal.App.4th at p. 378.) In deciding that question, we are required to
accord great deference to an agency's determination that a project is consistent with its
7 In addition, respondents assert two further examples of approvals of shopping centers
where the NPP policies were allegedly in effect, but the acreage and square footage numbers of
the NPP were exceeded (i.e., Obrien's Marketplace and the Crossroads shopping center).
8 We note that in the trial court, respondents distilled from the administrative record the
"eight other shopping centers subject to NPP policies" that exceeded the acreage and square
footage numbers stated in the NPP policy at issue. The eight were then summarized in a diagram
that was attached to the trial court's ruling on petition for writ of mandate.
16.
own general plan. (Save Our Peninsula, supra, 87 Cal.App.4th at p. 142.) That is
because ''the body which adopted the general plan policies in its legislative capacity has
unique competence to interpret those policies when applying them in its adjudicatory
capacity." (Ibid.) Furthermore, "[b ]ecause policies in a general plan reflect a range of
competing interests, the governmental agency must be allowed to weigh and balance the
plan's policies when applying them, and it has broad discretion to construe its policies in
light of the plan's purposes ." (Ibid.)
In applying our deferential review, we decide whether the City's finding of
consistency with the General Plan was ''reasonable based on the evidence in the record."
(California Native Plant Society v. City of Rancho Cordova, supra, 172 Cal App.4th at
p. 637.) "[A]s long as the City reasonably could have made a determination of
consistency, the City's decision must be upheld, regardless of whether we would have
made that determination in the first instance ." (Id. at p. 638.) "An agency's finding that
a project is consistent with its general plan can be reversed only if it is based on evidence
from which no reasonable person could have reached the same conclusion." (San Diego
Citizenry Group, supra, 219 Cal.App.4th at p. 26.)
We find no abuse of discretion in the City's determination that the project was
consistent with its General Plan, including the NPP policies. First, aside from the
increased size of the shopping center over the prototypical size, the project fits and is
compatible with NPP polices by placing a neighborhood~serving shopping center at the
comer of an intersection served by two arterial streets, exactly as depicted on the NPP
map, and complying with all other relevant policies . Second, the City's approval of a
larger shopping center does not violate the General Plan because the NPP acreage and
square footage descriptions were reasonably construed by the City as flexible guides to
development, not rigid development limitations. That construction was reasonable based
on the language of the NPP policies as well as the City's own past practices in applying
17 .
the NPP provisions. For all of these reasons, we uphold the City's determination t"1at the
project was consistent with the NPP policies of the General Plan.
C. Rezoning Polices
Appellant contends the City fail ed to proceed in a manner required by law
because, allegedly~ it failed to make mandatory findings required by the General Plan's
rezoning policy. (See Woodland Hills Residents Assn., Inc. v. City Coilncil (1975) 44
Cal.App.3d 825, 837-838 [reversal of approval of subdivision map required where
governing body failed to make legally mandated finding of consistency with general
plan].) Respondents argue that all of the necessary findings were adequately made in
connection with the several concurrent approvals on the project. On balance, we agree
with respondents.
The General Plan's "Community Development Policies" contain a policy
governing zoning changes (the rezoning policy), which requires the City to make certain
findings when it approves a zoning change. The rezoning policy of the General Plan
states, in relevant part, as follows:
"Zone changes may be approved anywhere in the General Plan Area,
if the following findings .are made:
"(1) The requested zone change is required by public convenience
or necessity.
"(2) The requested change will result in an orderly planning use of
land resources.
"(3) The requested zone change is in accordance with the
c~mmunity's objectives set forth in: '[NPP]' policies presented in
Section C-2, below (for property within the Baseline Developed Area); or a
Specific Plan prepared in accordance with this chapter (for property within
the Planned Urbanizing Area); or the Redevelopment Plan (for property
within the Redevelopment Area).
"( 4) Adequate environmental mitigation has been provided
through the implementation of appropriate mitigation measures established
18.
by the [MEIR] and any supplements to the MEIR. Traffic and public
facility issues are particularly relevant in this analysis."
The City made several approvals relevant to the project, each with an array of
detailed findings, including (1) resolution No. 2014-16 (approval ofFEIR. and mitigation
measures and adoption of a mitigation monitoring and reporting program or MMRP,
etc.), (2) approval of ordinance No. 3597-C.S. (zoning changes enacted), and
(3) resolution No. 2014-17 (approval of amendment to General Plan and adoption of
findings of General Plan consistency). As pointed out by respondents, the City's findings
specified iri connection with its approval of ordinance No. 3597-C.S. clearly satisfied the
first three of the four findings required by the rezoning policy. The same three concerns
are covered to a further extent in the City's fmdings made concerning its approval of
resolution No. 2014-17. This leaves only the fourth of the necessary findings under the
rezoning policy, which requires a finding of"[a]dequate environmental mitigation ...
through the implementation of appropriate mitigation measures .... "
We agree with respondents that the fourth and final finding under the rezoning
policy of"[a]dequate environmental mitigation" was satisfied by the City's particular
findings made in connection with approval of resolution No . 2014-16. In a series of
recitals, resolution No. 2014-16 first summarized the history of environmental review of
the project, including the City's initial study that analyzed the project in relation to the
MEIR, the City's decision to prepare a project-level EIR after certain concerns relating to
traffic and urban decay (among others) were raised, the preparation of the DEIR, RDEIR,
and FEIR regarding the project, and the fact that environmental impacts, mitigation
measures and alternatives were analyzed therein. Resolution No . 2014-16 then adopted
the FEIR's findings, analysis and conclusions as the City's own, made certain CEQA
findings including necessary findings relating to mitigation measures, adopted a
mitigation monitoring and reporting program (MMRP), and made further, more detailed
findings in an attachment that included a statement of overriding consideration. The
19.
MMRP contained mitigation measures derived from both the MEIR and from the project-
level FEIR. and, therefore, it appears to have included appropriate mitigation measures
established by the MEIR and by "any supplements to the MEIR." In addition, it is clear
from the administrative record that the City staff and the Planning Commission, in
recommending approval of the project, indicated that the adoption of feasible mitigation
measures under the project EIR (including the :MfvfRP) provided the requisite "[a]dequate
environmental mitigation" for purposes of the rezoning policy. Therefore, it appears that
the findings in resolution No. 2014-16 were intended to satisfy the environmental
adequacy finding under the rezoning policy. On balance, we conclude that the necessary
findings under the rezoning policy were made by the City. 9
In the second prong of its claim that the City failed to make findings sufficient to
comply with the rezoning policy of the General Plan, appellant argues that even if
findings were made, they were noncompliant on their face because the findings required
by the rezoning policy as to environmental mitigation included a substantive component
that "[a]dequate environmental mitigation" has been provided ''through ... appropriate
mitigation measures." (Italics added.) Appellant argues that the word "adequate" should
be construed to mean that all significant environmental impacts-such as traffic
impacts-be mitigated to less than significant levels. Since the project entails certain
traffic impacts that were found to be significant but mitigation was deemed to be
9 The City could have been clearer by more closely tracking its findings with the precise
terms of the rezoning policy, and by including all four of the necessary findings together within
the City's rezoning approval. It should not have been necessary to locate any of the required
findings among the other, concurrently adopted findings of the City. Nevertheless, since
adequate findings were in fact made, we will affirm rather than elevate form over substance. To
the extent that appellant is complaining that a fuller or more conspicuous elaboration of the
MEIR' s mitigation measures might have been made in the project BIR (or in the MMRP),
appellant has failed to demonstrate error by showing that a material omission of any applicable
mitigation measure occurred and, in any event, failed to raise that particular point below.
20.
infeasible, ,appellants argue the rezoning policy's mandatory findings requirement (of
adequate environmental mitigation) was violated in this substantive sense.
We reject this line of argument because, among other things, 10 appellant's
proffered interpretation of adequate mitigation is not reasonable in light of other policies
in the General Plan. Goal No. 6.f. of the General Plan provides that the "highest possible
levels of service for all transportation modes" be maintained on the City roadways, but
only as "consistent with the financial resources reasonably available to the City and
without unreasonably burdening property owners or developers with excessive roadway
improvement costs." Similarly, goal No. 7 .b. of the General Plan provides: "The City
may allow individual locations to fall below the City's LOS [level of service] standards
in instances where the construction of physical improvements would be infeasible, be
prohibitively expensive, significantly impact adjacent properties or the environment,
significantly impact non-motorized transportation systems, or have a significant adverse
effect on the character of the community ." When the rezoning policy is construed in light
of these other provisions of the General Plan, the meaning of what is adequate mitigation
under the circumstances must make allowances for the fact that mitigation is not required
where it is infeasible. Therefore, appellant has failed to demonstrate that the City erred
by simply adopting findings that did not require infeasible mitigation.11
D. Other General Plan Policies
Additionally, appellant contends the approval of the project was inconsistent with,
or failed to adequately comply with, two more General Plan provisions or policies-
namely, goals Nos. 6 .f. and 7.e. Respondents object that since these specific contentions
10 For the reasons stated in the discussion above, we believe the findings adequately met the
substance of the rezoning policy's finding requirements.
11 Whether the findings of infeasibility were supported by substantial evidence is
considered in our discussion regarding CEQA compliance. Here, we address only whether the
City complied with the rezoning policy's finding requirements.
21.
were not raised in the administrative proceedings below, they may not be raised in the
present appeal. In light of the necessity of exhaustion of remedies, respondents are
correct.
Under the exhaustion doctrine, regardless of whether the legal issues stem from
CEQA or a failure to comply with a general plan, a party may not litigate issues in court
that were not fully and fairly presented to the agency before it rendered the challenged
decision. (Pub. Resources Code,§ 21177, subd. (a); Gov. Code,§ 65009, subd. (b)(l);
California Native Plant Society v. City of Rancho Cordova, supra, 172 Cal.App.4th at
pp. 615-616.) The rationale for the exhaustion doctrine is that the agency is entitled to
learn the contentions of interested parties before litigation is instituted. (Sie"a Club v.
City of Orange (2008) 163 Cal.App.4th 523, 535.) "The essence of the exhaustion
doctrine is the public agency's opportunity to receive and respond to articulated factual
issues and legal theories before its actions are subjected to judicial review." (Coalition
for Student Action v. City of Fullerton (1984) 153 Cal.App3d 1194, 1198.) To advance
the exhaustion doctrine's purpose, the exact issue must have been presented to the
administrative agency. (Sierra Club v. City of Orange, supra, at p. 535 .) General
environmental comments, generalized references, or isolated or unelaborated comments
will not suffice. (Id. at p. 536.) The objections must be "'sufficiently specific so that the
agency has the opportunity to evaluate and respond to them."' (Porterville Citizens for
Responsible Hillside Development v.-City of Porterville (2007) 157 Cal.App.4th 885,
909.) The petitioner bears the burden of demonstrating that the issues raised in the
judicial proceeding were first raised at the administrative level. (Ibid.) The exhaustion of
remedies requirement is jurisdictional. (Sierra Club v. City of Orange, supra, at p. 535.)
There is no indication in the record that appellant, or any other person, presented
the specific contention in the administrative proceedings below that the project's
22 .
approval was incompatible with goals Nos. 6.f. and 7.e. of the General Plan.12 Therefore,
under the exhaustion doctrine, these issues were not preserved for purposes of the instant
judicial challenge and will not be considered.
IL Compliance with CEQA
Appellant contends the City failed to comply with CEQA in several respects,
including that ( l) the findings of infeasibility as to certain mitigation measures were not
supported by substantial evidence, (2) the urban decay findings were not supported by
substantial evidence, and (3) the findings made in connection with the statement of
overriding considerations were not supported by substantial evidence . We now consider
such claims, beginning our discussion with a summary of the standard of review for
CEQA issues.
A. CEQA Standard of Review
Our review under CEQA is de novo in the sense that we review the agency's
actions as opposed to the trial court's decision. (Vineyard Area Citizens for Responsible
Growth, Inc. v. City of Rancho Cordova (2007) 40 Cal.4th 412, 427 (Vineyard).)
However, our inquiry extends only to whether there was a prejudicial abuse of discretion.
(§ 21168.S.) "Such an abuse is established [(I)] 'if the agency has not proceeded in a
12 Goal No. 6.f. states: "The highest possible levels of service for all transportation modes
(vehicle, transit, pedestrian, and bicycle) shall be maintained on City roadways, consistent with
the financial resources reasonably available to the City and without unreasonably burdening
property owners or developers with excessive roadway improvement costs. On roadways where
the LOS is expected to exceed LOS F, the City should consider mitigation measures other than
road widening, such as the addition of bicycle lanes, improved pedestrian access, improved
transit service, and the establishment of walkable development patterns. Data from the General
Plan Traffic Analysis, described in the Traffic Appendix of the [MEIR], as updated from time-to-
time, shall be used to evaluate the effectiveness of traffic mitigation measures adopted by the
City Council."
Goal No. 7 .e. states, in relevant part, that where an EIR is prepared for projects that could
cause further traffic degradation below certain levels, the preparation of a comprehensive traffic
study "shall include appropriate measures to update the General Plan Traffic Analysis for all
subsequent Specific Plans, and for development within the affected Baseline Developed Area
and Redevelopment Area, and shall conform to the Traffic Study Guidelines."
23.
manner required by law or [(2)] if the determination or decision is not supported by
substantial evidence."' (Vineyard, supra, at p . 426 ; see § 21168.5.) The nature of our
judicial review of these two types of error "differs significantly." (Vineyard, supra, at
p. 435.) We determine de novo whether the agency has employed the correct procedures,
"'scrupulously enforce[ing] all legislatively mandated CEQA requirements,"' but we .
apply the more deferential substantial evidence test to the agency's substantive factual
conclusions. (Ibid.)
As here, legal challenges under CEQA often relate to the adequacy of the
information or analysis in the BIR. The EIR is "'the heart of CEQA"' and the primary
mechanism to alert local agencies and the public to environmental impacts of proposed
projects. (Laurel Heights Improvement Assn. v. Regents of University of California
(1988) 47 Cal.3d. 376, 392 (Laurel Heights).) A public agency must prepare an BIR for
any project that may have a significant impact on the environment. (§ 21100, subd. (a).).
Among other things, the EIR must describe the proposed project and its environmental
setting, identify and analyze the significant effects on the environment, state how those
environmental impacts can be mitigated or avoided, and identify and discuss alternatives
to the project. (Pub. Resources Code,§§ 21100, subd. (b), 21002.1, subd. (a);
Guidelines, § 15126; California Native Plant Society v. City of Santa Cruz (2009) 177
Cal.App.4th 957, 979 (California Native Plant Society).)
CEQA "requires an EIR to reflect a good faith effort at full disclosure''; however,
"it does not mandate perfection, nor does it require an analysis to be exhaustive." (Dry
Creek Citizens Coalition v. County ofTulare (1999) 70 Cal.App.4th 20, 26 (Dry Creek).)
The courts have looked ''not for perfection but for adequacy, completeness, and a good
faith effort at full disclosure." (Guidelines,§ 15151.) In reviewing an agency's
determination to approve an EIR, "The court does not pass on the correctness of an EIR's
environmental conclusions, but determines whether the EIR is sufficient as an
informational document." (Dry Creek, supra, at p. 26; see§ 21168.5 ; Laurel Heights,
24.
supra, 41 Cal.3d at pp. 392, 407.) "An adequate EIR must be 'prepared with a sufficient
degree of analysis to provide decisionmakers with information which enables them to
make a decision which intelligently takes account of environmental consequences.
(Guidelines, § 15151.) It 'must include detail sufficient to enable those who did not
participate in its preparation to understand and to consider meaningfully the issues raised
by the proposed project.' [Citation.]" (Dry Creek, supra, at p . 26.)
In challenges that are predominantly a dispute over the factual findings and
conclusions reached in an BIR, "[t]he court must uphold an EIR if there is any substantial
evidence in the record to support the agency's decision that the BIR is adequate and
complies with CEQA." (Dry Creek, supra, 70 Cal.App.4th at p. 26; see Laurel Heights,
supra, 41 Cal .3d at p . 392.) For example, CEQA challenges concerning the amount or
type of information contained in the BIR, the scope of the analysis, the choice of
methodology or the reliability of data are all factual determinations reviewed for
substantial evidence. (Madera Oversight Coalition, Inc. v. City of Madera (2011) 199
Cal.App.4th 48, 101 (Madera Oversight Coalition); Santa Monica Baykeeper v. City of
Malibu (2011) 193 Cal.App .4th 1538, 1546; California Native Plant Society, supra, 177
Cal.App.4th at p. 986.) Likewise, in a factual dispute over "'whether adverse effects
have been mitigated or could be better mitigated' [citation], the agency's conclusion
would be reviewed only for substantial evidence ." (Vineyard, supra, 40 Cal.4th at
p. 435.)
Frequently, disputes center on the question of whether relevant information was
omitted from an BIR. (Associa~ion of I"itated Residents v. County of Madera (2003) 107
Cal.App.4th 1383, 1391 (Association of Irritated Residents).) Because a fundamental
purpose of an BIR is to provide public agencies and the public with detailed information
about the effect that a project is likely to have on the environment, the absence of
information in an EIR may potentially constitute a failure to proceed in a manner required
by law. (Citizens for a Sustainable Treasure Island v. City and County of San Francisco
25.
(2014) 227 Cal .App.4th 1036, 1046 (Citizens for a Sustainable Treasure Island).)
However, ''The absence of information in an EIR does not per se constitute a prejudicial
abuse of discretion. (§ 21005.) A prejudicial abuse of discretion occurs if the failure to
include relevant information precludes informed decision.making and informed public
participation, thereby thwarting the statutory goals of the BIR process." (Dry Creek,
supra, 70 Cal.App.4th at p. 26; accord, Citizens for a Sustainable Treasure Island, supra,
at p. 1046; California Native PlantSociety, supra, 177 Cal.App.4th at pp. 986-987;
Association of Irritated Residents, supra, at p. 1391.) When that level of insufficiency of
the EIR as an informational document has occurred, the agency has not proceeded in a
manner required by law and reversal is required. (Vineyard, supra, 40 Cal.4th at 435 ,
citing Sierra Club v. State Bd. of Forestry (1994) 7 Cal.4th 1215, 1236; Bakersfield
Citizens for Local Control v. City of Bakersfield (2004) 124 Cal.App.4th 1184, 1220
(Bakersfield Citizens for Local Control.)
As the above overview reflects, in evaluating an EIR. for CEQA compliance, "a
reviewing court must adjust its scrutiny to the nature of the alleged defect, depending on
whether the claim is predominantly one of improper procedure or a dispute over the
facts." (Vineyard, supra, 40 Cal.4th at p. 435.) In other words, "our choice of the proper
standard of review depends upon · identifying correctly whether the question concerning
the adequacy of the EIR's disclosures ... is a question of law or a question of fact."
(Madera Oversight Coalition, supra, 199 Cal.App.4th at p. 101.) To summarize the
nature of our inquiry in deciding the standard of review: "[T]he omission of required
information constitutes a failure to proceed in the manner required by law where it
precludes informed decisionmaking by the agency or informed participation· by the
public. [Citation.] We review such procedural violations de novo. (Citation.] By
contrast, we review an agency, s substantive factual or policy detenninations for
substantial evidence. [Citations.]" (California Native Plant Society, supra, 177
Cal.App.4th at p. 987 .)
26 .
Here, it appears that appellant is essentially claiming that the City's findings,
which were adopted in the course of approving the EIR and in making related CEQA
determinations, were not based on substantial evidence in the record. In applying the
substantial evidence standard, the reviewing court must resolve reasonable doubts in
favor of the administrative finding and decision. (Laurel Heights, supra, 47 Cal.3d at
p. 393.) Under this standard, we may not set aside an agency's approval of an EIR on the
ground that an opposite conclusion would have been equally or more reasonable. Nor
may we weigh conflicting evidence and determine who we think has the better argument.
Courts do not have ''the resources nor scientific expertise to engage in such analysis, even
if the statutorily prescribed standard of review permitted us to do so." (Ibid.) Rather,
'"The agency is the finder of fact and we must indulge all reasonable inferences from the
evidence that would support the agency's determinations and resolve all conflicts in the
evidence in favor of the agency's decision.' [Citation.] That deferential review standard
flows from the fact that 'the agency has the discretion to resolve factual issues and to
make policy decisions.' [Citation.]" (California Native Plant Society, supra, 177
Cal.App.4th at p. 985.)
CEQA' s Guidelines define substantial evidence as "enough relevant inforrilation
and reasonable inferences from this information that a fair argument can be made to
support a conclusion, even though other conclusions might also be reached."
(Guidelines, § 15384, subd. (a).)
B. Infeasibility Findings as to Certain Traffic Mitigation MeasUl'es
According to appellant, the EIR is inadequate because the findings stated therein
that certain mitigation measures were "infeasible" were not supported by substantial
evidence in the administrative record. To put it differently, appellant asserts that there
were f~asible mitigation measures proposed that the City declined to impose without
providing adequate explanation for that decision supported by substantial evidence. We
27 .
begin our discussion of this issue with an overview of what CEQA requires concerning
mitigation measures and findings of infeasibility.
1. The CEQA Mitigation Requirem~nt
"The core of an BIR is the mitigation and alternatives sections." (Citizens of
Goleta Valley v. Board of Supervisors, supra) 52 Cal.3d at p. 564.) An BIR must
describe ''feasible [mitigation] measures which could minimize significant adverse
impacts." (Guidelines, § 15126.4, subd. (a)(l).) '"Mitigation"' includes: "(a) Avoiding
the impact altogether by not taking a certain action or parts of an action. [ti
(b) Minimizing impacts by limiting the degree or magnitude of the action and its
implementation. ['m ( c) Rectifying the impact by repairing, rehabilitatin& or restoring
the impacted environment [~ ( d) Reducing or eliminating the impact over time by
preservation and maintenance operations during the life of the action. [1]
( e) Compensating for the impact by replacing or providing substitute resources or
environments." (Guidelines,§ 15370.) "'Feasible'" means "capable ofbeing
accomplished in a successful manner within a reasonable period of time, taking into
account economic, environmental, social, and technological factors." (Pub. Resources
Code,§ 21061.l; Guidelines, § 15364.) "Whether a mitigation measure ... is feasible
'involves a balancing of various "economic, environmental, social, and technological
factors.""' (Citizens Opposing a Dangerous Environment v. County. of Kern (2014) 228
Cal.App.4th 360, 381, citing City of Del Marv. City of San Diego (1982) 133 Cal.App.3d
401, 417.)
In section 21002 of CEQA, the Legislature declared, "it is the policy of the state
that public agencies should not approve projects as proposed if there are feasible
alternatives or feasible mitigation measures available which would substantially lessen
the significant environmental effects of such projects .... '' "Section 21002 has been
described as a 'substantive mandate that public agencies refrain from approving projects
for which there are feasible alternatives or mitigation measures.' (Mountain Lion
28.
Foundation v. Fish & Game Com . (1997) 16 Cal.4th 105, 134 (Mountain Lion).) This
substantive mandate 'is effectuated in section 21081.' (lbid.r' (Friends of Kings River v.
County of Fresno (2014) 232 Cal.App.4th 105, 120.)
"Under [section 21081], a decisiorunaking agency is prohibited from approving a
project for which significant environmental effects have been identified unless it makes
specific findings about alternatives and mitigation measures. [Citations .] The
requirement ensures there is evidence of the public agency's actual consideration of
alternatives and mitigation measures, and reveals to citizens the analytical process by
which the public agency arrived at its decision. [Citations.]" (Mountain Lion, supra, 16
Cal.4th at p. 134; accord, Friends of Kings River v . County of Fresno, supra, 232
Cal .App.4th at p. 120.) One such specific finding provided under section 21081 is that
one or more mitigation measures identified in the BIR are determined to be "infeasible"
due to "[ s ]pecific economic, legal, social, technological, or other considerations ."
(§ 21081, subd . (a)(3).)
In summary, "[u]nder CEQA, 'a public agency is not required to favor
environmental protection .over other considerations, but it must disclose and carefully
consider the environmental consequences of its actions, mitigate adverse environmental
effects if feasible, explain the reasons for its actions, and afford the public and other
affected agencies an opportunity to participate meaningfully in the environmental review
process.' [Citation.] [t] As relevant here, a project with significant environmental
impacts may be approved only if the decisionmaking body finds (1) that identified
mitigation measures and alternatives are infeasible and (2) that unavoidable impacts are
acceptable because of overriding considerations. [Citations.]" (California Native Plant
Society, supra, 177 Cal.App.4th at p . 982, citing Federation of Hillside & Canyon Assns.
v. City of Los Angeles, supra, 126 Cal.App.4th at p. 1198.)
29.
2. The Necessity of InfeasibUity Findings
As we have explained, where an EIR has identified significant environmental
effects that have not been mitigated or avoided, the agency may not approve the project
unless it makes findings that "[ s ]pecific economic, legal, social, technological, or other
considerations ... make infeasible the mitigation measures or alternatives identified in the
[EIR]." (Pub. Resources Code,§ 21081, subd . (a)(3), italics added; see Guidelines,
§ 15091, subd .. (a)(3).) Such infeasibility findings "constitute the principal means chosen
by the Legislature to enforce the state's declared policy 'that public agencies should not
approve projects as proposed ifthere are feasible alternatives or feasible mitigation
measures available which would substantially lessen the significant environmental effects
of such projects .... '" (City of Marina v. Board of Trustees of California State University
(2006) 39 Cal.4th 341, 350, quoting§ 21002.) "'If the agency finds certain alternatives
to be infeasible, its analysis must explain in meaningful detail the reasons and facts
supporting that conclusion. The analysis must be sufficiently specific to permit infonned
decision-making and public participation, but the requirement should not be construed
unreasonably to defeat projects easily.' [Citation.]" (California Native Plant Society,
supra, 177 Cal.App.4th at p. 982.) An agency's infeasibility findings must be supported
_by substantial evidence in the record. (Pub. Resources Code,§ 21081.S; Guidelines,
§ 15091, subd. (b).)
3. The City's Infeasibility Findings
In its traffic analysis, the BIR identified a number of intersections or roadway
segments surrounding the location of the project site that would be impacted by the
project to a significant degree during peak traffic hours, and other intersections or
segments that would have such peak hour impacts based on a cumulative impacts
analysis. Each intersection or roadway segment was analyzed in light of LOS criteria,
based on such factors as increased volume of traffic or delays during peak hour traffic
congestion, with technical thresholds of significance utilized by the City to detennine
30.
when an impact would be deemed to be significant. As to each such intersection or
roadway segment for which a significant traffic impact was identified, potential
mitigation measures were discussed in the EIR, such as installation of traffic signals,
right tum lanes, adding lanes, implementing overlap phasing, lane restriping, real party's
(or the project's) payment of fair share fees, or other options, depending on the particular
location and traffic setting. In several instances, the proposed mitigation measures were
adopted by the City, including use of fair share fee payments. In other instances, the City
determined that proposed mitigation measures were infeasible for specified reasons.
To support its findings that certain mitigation measures were infeasible, a variety
of supporting factors were set forth by the City. Which factor or factors were asserted µi
a particular instance depended on the respective intersection or segment involved and the
nature of the mitigation measure being proposed. Among the several factors or grounds
of infeasibility stated by the City were the following: (l) existing business
establishments in some areas 13 weighed against acquiring additional right-of-way needed
for certain road expansion measures; (2) one or more of the proposed measures would
result in a conflict with General Plan standar<fs14 for circulation; (3) the project's
contribution to traffic increases was too small to justify requiring it to build the entire
improvement constituting the mitigation measure; (4) there were no identified funding
sources for a proposed mitigation measure to be fully funded and successfully built when
needed; and (5) another project was already required to build out one of the proposed
13 As noted by respondents, goal No . 7.b. of the General Plan allows the City to reject
traffic improvements that will significantly impact adjacent properties, or that will have a
significant adverse effect on the character of the community.
14 We note the Guidelines expressly state that, for purposes o.f an EIR's analysis of project
alternatives, consistency with the general plan is a factor. (See Guidelines,§ 15126.6,
subd. (f)(l).) Due to the importance of compliance with a general plan's fundamental policy
elements, we assume that such consistency is likewise a relevant consideration for purposes of
considering the feasibility of mitigation measures. (See, e.g., City of Del Mar v. City of San
Diego, supra, 133 Cal.App.3d at pp. 41~16.)
31.
intersection improvements (i.e., a traffic signal). The foregoing circumstantial and
contextual information, recited as supporting grounds of infeasibility, was provided in the
administrative record to the City in the form of staff reports and attachments, and was
reiterated in the EIR. Along with these factors, the City was also aware of, and took into
consideration, the magnitude of the estimated expense of each proposed mitigation
measure and the proportionate share of the traffic impact attributable to the project. The
cost estimates were largely provided in the first instance by appellant's traffic expert,
although the City's traffic staff also supplied some of the financial estimates. For our
purposes, the important thing is the City had that data before it and considered it.
By and large, the above facts and circumstances are among the type of
considerations that should appropriately go into an agency's assessment of whether a
measure is feasible or not. (See Pub. Resources Code,§ 21061.1; Guidelines,§ 15364
["'[t]easible"' means "capable of being accomplished in a successful manner within a
reasonable period of time, taking into account economic, environmental, legal, social, and
technological factors'1.) At first glance, it appears there was substantial evidence in the
record that potentially supported the infeasibility findings that were made by the City
when it considered the proposed mitigation measures. Moreover, the City's findings in
that regard are presumed correct and appellant has the burden of affirmatively
demonstrating otherwise. "The decisions of the agency are given substantial deference
and are presumed correct. The parties seeking mandamus bear the burden of proving
otherwise, and the reviewing court must resolve reasonable doubts in favor of the
administrative findings and detennination." (Sie"a Club v. County of Napa (2004) 121
Cal.App.4th 1490, 1497.)
Appellant falls short of meeting that burden, in part because of its unfocused
briefing on this issue. Appellant's opening brief does not clearly identify the particular
mitigation measure (or measures) claimed by appellant to have been erroneously deemed
infeasible, nor does it recite the basis for the City's findings or adequately explain to this
32.
court why ·appellant believes the City's findings in that specific matter lacked the support
of any substantial evidence in the record. (See Keyes v. Bowen (20 I 0) 189 Cal.App.4th
647, 656 [the appellant has burden to demonstrate error by presenting legal authority and
factual analysis on each point made, supported by appropriate citation to the material
facts in the record].) Instead, appellant's opening brief makes a generalized argument,
asserting error in the abstract while only briefly alluding to particular segments or
intersections and particular mitigation measures. In a complex matter such as this, we
believe that appellant has not met its burden on appeal. "As with all substantial evidence
challenges, an appellant challenging an EIR for insufficient evidence must lay out the
evidence favorable to the other side and show why it is lacking. Failure to do so is fatal.
A reviewing court will not independently review the record to make up for appellant's
failure to carry his burden." (Defend the Bay v. City of Irvine (2004) 119 Cal.App.4th
1261,1266.) Further, merely incorporating by reference matters filed in the proceedings
below (e.g., administrative letters ofVRPA Technologies, appellant's traffic consultant)
is not a substitute for adequately briefing the specific arguments. (Keyes v. Bowen,
supra, at p. 656 [''The appellant may not simply incorporate by reference arguments
made in papers filed in the trial court, rather than briefing them on appeal."].)
But even considering the merits of appellant's contentions, we are not persuaded
that the City prejudicially abused its discretion in making its feasibility findings . The
main thrust of appellant's argument is that the City should have found feasible certain of
appellant's proposals that real party (or the project) be required to pay more impact fees
(also called fair share fees) that would go toward the cost of improvements needed at
several distinct intersections or segments of roadway as to which a significant traffic
impact still remained. Appellant's position is apparently that, as a general principle, it is
always feasible (as a mitigation method) to impose more monetary fees on a project,
since the collection of any amount of additional funds will always constitute at least an
incremental step in the direction of eventually having enough money to accomplish the
33.
needed improvements. As explained below, we disagree with appellant's over-simplified
approach to the extent that it amounts to a blanket rule that does not adequately account
for other factors bearing on the issue of feasibility, including when fee-based mitigation
is proposed.ls In any event, as will be seen in the discussion below, the City's findings
of infeasibility concerning the proposals to impose additional fair share fees on the
project were adequately based on relevant factors that were supported by evidence in the
record.
Of course, fee-based mitigation plans may be approved by an agency as a viable
method of achieving mitigation in some circumstances. Under CEQA Guidelines, an EIR
may determine that a project's contribution toward the cost of a proposed mitigation
measure adequately mitigates the project's proportionate share of a particular cumulative
impact: "An EIR may determine that a project's contribution to a significant .cumulative
impact will be rendered less than cumulatively considerable [(i.e., not si~ficant)] ... if
the project is required to implement or fund its fair share of a mitigation measure or
measures designed to alleviate the cumulative impact." {Guidelines,§ 15130, subd.
(a)(3), italics added.) However, the same provision of the Guidelines further states that
the lead agency "shall identify facts and analysis supporting its conclusion that the
contribution will be rendered less than cumulatively considerable." (Ibid.) In other
words, the EIR and the lead agency adopting it must be able to substantiate that the fee-
based mitigation plan is reasonably likely to actually accomplish the means of effecting
substantial mitigation (e.g., the completion of a proposed road improvement).
Consistent with this principle, courts addressing the issue have held that while
some "'unavoidable uncertainties"' as to funding and implementation are generally
allowed, ""'a commitment to pay fees without any evidence that mitigation will actually
15 We note that feasibility determinations properly involve a balancing of factors. (Citizens
Opposing a Dangerous Environment v. County of Kern, supra, 228 Cal.App.4th at p. 381.) It is
difficult to square appellant's blanket approach with this fact.
34.
occur is inadequate." [Citations.]"' (Tracy First v. City of Tracy (2009) 177 Cal .App.4th
912, 938,, quoting City of Marina v. Board of Trustees of California State University,
supra, 39 Cal.4th at pp. 364-365.) There must be a plan, enforceable by the City,
reasonably enswing that sufficient traffic funding will actually be obtained and will
accomplish the required mitigation. (Tracy First v. City of Tracy, supra, at p. 938.) In
summary, a traffic impact fee may be found to be an appropriate form of mitigation only
if it is "linked to a reasonable plan for mitigation" (Gray v. County of Madera (2008) 167
Cal.App.4th 1099, 1122) and "sufficiently tied to the actual mitigation of the impacts of
increased traffic" (Save Our Peninsula, supra, 81 Cal.App.4th at p. 141; accord,
Anderson First Coalition v. City of Anderson (2005) 130 Cal.App.4th 1173, 1189). As to
the timing for completion of the improvement constituting the mitigation of traffic
impacts, as long as there is a reasonable plan for actually realizing that mitigation feature,
the plan may be deemed adequate under CEQA even if does not include a ''time-specific
schedule" for the accomplishment thereof. (Save Our Peninsula, supra, at p. 141). On
the other hand, where the record supports a conclusion that the actual mitigation measure
(e.g., a road or traffic improvement to be built through impact fees) could not be
adequately funded and accomplished in a successful manner within a reasonable period
of time, the measure may be deemed infeasible. (Napa Citizens, supra, 91 Cal.App.4th at
p. 365; accord, Endangered Habitats League, Inc. v. County of Orange (2005) 131
Cal.App.4th 777, 785.)
Here, the City's traffic planning does incorporate the use of fair share fees to
facilitate mitigation, which included imposing such fees on the project itself. As
explained in the DEIR: "The City has a Capital Improvement Program (CIP) for
improvements on Oakdale Road from Floyd Avenue to Sylvan Avenue. The CIP project
includes improvements to the Oakdale Road and Floyd Avenue intersection that would
add a southbound dedicated right turn lane, thereby resulting in two southbound through
lanes. In addition, Oakdale Road will be widened to install a third northbound through
35.
lane north of the Oakdale Road and Floyd Avenue intersection. The City CIP project
improves the function of the intersection and partially mitigates the identified impact ....
['fl This intersection improvement project will be implemented as part of the City's CIP
program and the proposed project will contribute its fair share to the completion of the
Oakdale Road CIP Project through the payment of Capital Facility Fee:; .... " (Italics
added.) Payment of such fees was made a condition of approval of the project. The
FEIR provided further detail on how this would be applied. In regard to mitigation
measure No. 3.3.1 (at Oakdale Road and La Forge Drive; intersection No. 6), the MMRP
section of the FEIR stated: "Consistent with the City's CIP program, [real party] will
provide a fair share contribution to the delineation of a westbound right turn lane at the
Oakdale Road at LaForce Drive Intersection." In regard to mitigation measure No. 3.3.3
(at Oakdale Road and Floyd Avenue; intersection No. 8), it was stated that "Consistent
with the City's CIP program, [real party] will provide a fair share contribution to the
installation of a southbound right turn lane at the Oakdale Road at Floyd Avenue
Intersection and the installation of a third northbound through lane north of the
intersection."
Appellant believes that more should have been required, and its opening brief
makes passing reference to intersections Nos. 3, 4 and 6, and to road segment No . 3 (as
so numbered in the BIR), as examples of where the City allegedly erred in finding
infeasible appellant's proposals to seek to accomplish mitigation through imposition of
additional impact fees. Again, although we believe the briefing is inadequate to meet
appellant,s burden, we will briefly comment on these four matters. As to road segment
No. 3 (which is the segment of Oakdale Road between Mable Avenue and Sylvan
Avenue), appellant proposed widening the northbound segment of Oakdale Road by an
additional lane, and it estimated the cost of this improvement at $500 ,000. Since the
project was expected to increase traffic by S.4 percent at peak hours along this segment,
appellant urged that the project (or real party) should be required to pay 5.4 percent of the
36.
total cost of the improvement. The City rejected the proposal as infeasible based on
several facts and circumstances. First, the unmitigated impact would only exist for an
interim period because the improvement was already required to be constructed in
association with the development of the nearby Tivoli project. Second, based on the
small proportion of the project's impact (about 5.4 percent) relative to the overall cost of
the improvement and the lack of an identified funding source that would be adequate to
cover the remainder of the cost to complete the improvement in the short term, the City
determined it was infeasible to expect to be able to successfully accomplish this
improvement prior to its construction as part of the Tivoli project.
As to intersection No. 3 (Oakdale Road at Mable Avenue), which would operate at
an unacceptable LOS F under cumulative conditions (during peak hours) even without
the proposed project, the implementation of the project would contribute more than five
percent to the service volume of an approach at peak hours and increase average
intersection delay at that time of day. Actual mitigation to an acceptable LOS grade
would require "delineation of eastbound and westbound right-tum lanes, addition of a
second eastbound and westbound left-tum lane, addition of a fourth northbound and
southbound through lane, addition of a second southbound left-tum lane, and right-tum
overlap phases for the westbound and eastbound movements." The total cost was
estimated at over $2 million, and appellant proposed that the project pay a $50,000 fair
share fee towards the mitigation measures. The City rejected these extensive mitigation
measures for several reasons, including that the lane additions/road expansions in that
location would significantly exceed standards in the General Plan for collector
street/principal arterial street intersections, which would result in General Plan
inconsistency. Further, the addition of new lanes would also require the acquisition of
additional right-of-way that would significantly impact existing development, which the
record showed included a residence and veterinary hospital. Finally, the City observed
that there was no identified funding source for the remainder of the costs involved for
37.
accomplishing the proposed mitigation measures. Apparently, the City did not see how
implementing a CIP or similar plan at this particular site would be able to generate
sufficient funding to successfully accomplish the needed mitigation, nor was it aware of
any other funding sources. As noted, a commitment to pay fees without any evidence
that mitigation will actually occur is inadequate.· (Tracy First v. City of Tracy, supra, 177
Cal.App.4th at p. 938 .) Appellant has not shown any facts to the contrary. Similar types
of factors, such as General Plan inconsistency, the need to obtain right-of-way that would
interfere with existing business, and the lack of adequate funding sources to actually
accomplish the mitigation, were cited by the City in rejecting mitigation measures for
intersections Nos. 4 and 6.
While the City's discussions of its grounds for finding infeasibility in the above
instances were far from perfect, and arguably should have been more specific, we believe
they were not fatally deficient as to the presentation of adequate factual grounds to
support the ultimate findings . The City's analy$is did explain in meaningful detail the
reasons and facts supporting the infeasibility conclusions, and the analysis was
sufficiently specific to permit informed decision-making and public participation.
Further, the particular factors cited by the City did appear to be supported by evidence in
the administrative record, typically in the form of staff reports and attachments, and
appellant has failed to convincingly demonstrate otherwise. We conclude that this
particular attack on the City's approval of the project falls short.
C Evaluation of a Project Alternative
Appellant challenges the analysis in the EIR of one of the project alternatives.
Section 5.4.4 of the DEIR sets forth the evaluation comparing the project to the "Reduced
Project Alternative" (alternative No. 4). Under the Reduced Project Alternative, a 12-
acre shopping center development would be developed on the northern portion of the
project site, and condominiums (66 units) and apartments (196 units) would be developed
on the remaining six acres. The DEIR compared the various environmental effects of this
38.
potential alternative with the project's anticipated effects, including with respect to
aesthetics, air quality, biological resources, climate change, geology and soils, hazardous
materials, hydrology and water quality, land use and urban decay, noise, public services
and utilities, and traffic and circulation.
CEQA Guidelines provide that an EIR "shall describe a range of reasonable
alternatives to the project ... , which would feasibly attain most of the basic objectives of
the project but would avoid or substantially lessen any of the significant effects of the
project, and evaluate the comparative merits of the alternatives." (Guidelines, § 15126.6,
subd. (a).) As to the level of analysis required, the Guidelines state: "The EIR shall
include sufficient information about each alternative to allow meaningful evaluation,
analysis, and comparison with the proposed project. A matrix displaying the major
characteristics and significant environmental effects of each alternative may be used to
summarize the comparison." (Id, subd. ( d).) Here, as indicated above, it is clear that the
EIR complies with the applicable regulation.
The City reviewed the EIR's analysis and ultimately concluded in its findings that
the Reduced Project Alternative would not adequately meet project objectives or be
economically feasible. Therefore, the Reduced Project Alternative was rejected. The
findings stated, among other things, that although the Reduced Project Alternative would
slightly lessen some of the proposed project's significant impacts, it would not further
respondents' objectives related to the scope and scale of the commercial component of
the project because economic viability in the grocery store industry has necessitated an
increasing size of grocery stores, with an increasing variety of goods and services
offered. This, in turn, has led to increased shopping center sizes to maintain an
economically viable ratio of grocery store to other retail space within the center. A
further consideration affecting the viability of a smaller center at this location is the
access restrictions that would result from application of the City 's standards to the
smaller site, which would result in only two driveway accesses to the smaller shopping
39.
center. In making these findings, the City found credible the information from
respondents, which provided further detailed analysis relating to economic viability.
Substantial evidence in the record supported these findings. Indeed, as was aptly stated
by the trial court in its ruling below, "[t]here is a reasonable inference that if the Project
were reduced to 12 acres it would suffer the same fate as the other proposed projects
suffered in 1981 and 1987 ." Furthermore, consistent with CEQA (see§ 21081), the City
made findings in a statement of overriding considerations setting forth reasons for
moving forward with the project despite there being some unmitigated impacts.
Based on what we have stated, it appears that the EIR and the City's findings with
respect to the Reduced Project Alternative complied with CEQA. The description and
evaluation of this alternative was adequate, and the City properly considered that
information but ultimately rejected the alternative as infeasible as specified within its
findings that were based on substantial evidence in the record.
Nevertheless, appellant suggests that under Guidelines section 15126.2,
subdivision (b ), the EIR was inadequate as an informational document in its discussion of
the Reduced Project Alternative. Preliminarily, we would point out that Guidelines
section 15126.2 addresses the matters that should be discussed in an EIR regarding
significant environmental impacts. Another section of the Guidelines-
section 15126.6-is the one that is primarily applicable to the discussion of relevant
project alternatives. As we have noted above, the EIR fully complies with section
15126.6. Appellant has failed to adequately explain, with discussion oflegal authority,
why an BIR that is in compliance with the specific provision that is directly applicable to
the analysis of alternatives should nevertheless be deemed inadequate in regard to that
analysis in the present case.
Although not altogether clear, it would appear that appellant is attempting to seize
upon an isolated sentence in Guidelines section 15126.2, subdivision {b). That provision,
after stating that an EIR should "[ d]escribe any significant impacts, including those
40.
which can be mitigated but not reduced to a level of insignificance," further states that
"[ w ]here there are impacts that cannot be alleviated without imposing an alternative
design, their implications and the reasons why the project is being proposed,
notwithstanding their effect, should be described." We note that the EIR did provide this
type of descriptive information in its discussion of the project's significant environmental
effects and potential mitigation, which subject areas would seem to be the probable
context of the wording of Guidelines section 15126.2, subdivision (b ), since it entails
what should be considered without imposing an alternative design. Thus, appellant's line
of argument appears to be misplaced. In any event, appellant's cursory mention of this
issue fails to adequately demonstrate that the EIR is deficient under that provision, nor
does appellant provide legal authority or cogent legal argument to support the provision's
application to the EIR's discussion of the project alternative. Moreover, as already noted
above, the EIR complies with the applicable Guidelines with respect to evaluation of
alternatives. For all .of these reasons, no prejudicial abuse of discretion on this issue has
been demonstrated.
D. Findings as to Urban Decay
Appellant asserts that there was no substantial evidence in the record to support
the EIR's findings that the project would have no significant urban decay impacts. We
disagree with appellant's assertion, as we shall briefly explain.
While economic or social impacts of a project are not in themselves treated as
significant environmental effects, CEQA is concerned with whether a projecf s economic
or social impacts will cause adverse physical changes in the environment. (Guidelines,
§ 15131.) For example, the economic or social impacts of a project could foreseeably
result in a downward spiral of store closures and long-term vacancies that create physical
deterioration to an urban environment, an impact usually referred to in CEQA parlance as
"urban decay." (Bakersfield Citizens for Local Control, supra, 124 Cal.App.4th at
pp. 1204, 1212-1213 [EIR should have analyzed the potential urban decay impacts from
41.
two regional big box retailers situated in relatively close proximity in a saturated retail
market].)
Here, the DEIR analysis contained a description of the market setting, both in a
regional and local level, including indications of improving market conditions and
declining vacancy rates (as the City emerged from the past real estate recession) and
statistical evidence that when vacancies arise in the City, ther~ is a history of successful
backfilling (or re-tenanting) of such vacant commercial space with new commercial uses.
Where vacancies presently exist, a visual scoping indicated the properties remain well
maintained. The project is not a regional supercenter, but more of a traditional anchor
grocery store, only somewhat larger. It meets different needs and draws from a more
limited trade area than such regional supercenters. After considering the size of the
project, the market conditions, the history of backfilling in the City, the flexibility for
some commercial spaces being repurposed, and the City's consistent enforcement of
property maintenance ordinances, it was determined that the project would not result in
significant urban decay impacts. The City's analysis in the BIR was supported by
substantial evidence in the record, including City staff reports and testimony, other expert
testimony, and an economic report from Terranomics. The City's findings were further
supported by evidence and testimony of real party, as an experienced commercial
developer familiar with both the retail market setting and the physical condition of
existing shopping centers in the area.
Appellant puts more weight or credibility on other evidence, would want to see
more exhaustive data, and disagrees with the City's conclusion. On review, such
arguments are beside the point. In applying the substantial evidence standard, the
reviewing court must resolve reasonable doubts in favor of the administrative finding and
decision. (Laurel Heights, supra, 41 Cal.3d at p. 393.) Under this standard, we may not
set aside an agency's approval of an EIR on the ground that an opposite conclusion
would have been equally or more reasonable. Nor may we weigh conflicting evidence
42.
and determine who we think has the better argument. (Ibid.) Since there was substantial
evidence in the record to support the City's urban decay findings, appellant's argument
fails.
E . Statement of Overriding Considerations
Appellant's final CEQA attack on the City's approval of the project is that the
City's findings regarding the benefits of the project in its statement of overriding
considerations did not have the support of substantial evidence in the record. Again, we
disagree with appellant's assessment.
An agency must adopt a statement of overriding considerations when it approves a
project in spite of significant, unavoidable environmental impacts. (Pub. Resources
Code,§ 21081, subd. (b); Guidelines,§ 15093.) The agency must find, with respect to
significant effects of the project, which were unavoidable, that "specific overriding
economic, legal, social, technological, or other benefits of the project outweigh the
significant effects on the environment." (§ 21081, subd. (b).) "The statement [of
overriding considerations] reflects the 'final stage' in the agency's decisionmaking
process." (Cherry Valley Pass Acres & Neighbors v. City of Beaumont (2010) 190
Cal.App.4th 316, 356 (Cherry Valley).) It is intended to show the balance the agency
struck in weighing the benefits of a proposed project against its unavoidable
environmental risks. (Id. at p. 357.) The findings must be supported by substantial
evidence in the record. (Guidelines, § 15093, subd . (b).) "A lead agency 's decision to
approve a project despite its significant environmental impacts is a discretionary policy
decision, entrusted to it by CEQA, and will be upheld as long as it is based on findings of
overriding considerations that are supported by substantial evidence ." (Cherry Valley,
supra, at p. 357.)
In its statement of overriding considerations, the City made findings that the
benefits of the project outweighed unavoidable impacts. The specific benefits of the
project referred to by the City in its findings included (1) economic development and job
43 .
creation; (2) creation of transportation and infrastructure improvements; (3) increase in
tax revenues; and ( 4) the advancement of several General Plan policies.
In support of the finding that the project would spur economic development and
job creation, there was substantial evidence in the record that the project was in an area of
town currently underserved, in part because older grocery stores had relocated or closed
and in part because the number of residents in the vicinity had significantly increased.
Since there was a substantial market demand for the project within this area of town
surrounded by residential neighborhoods that would be served by it, the City could
reasonably infer that new jobs would be created.16 The project would meet this demand
and expand retail services in northeast Modesto, providing an opportunity for businesses
to locate into modem and attractive commercial space. Based on the same factual basis,
the City could also reasonably infer that once the anchor grocery store and other retail
businesses were established at the project site, this increased development would expand
the City's public revenues in terms of additional property and sales tax revenue.
On the issue of jobs and tax revenues, appellant maintains that a comprehensive
market study had to be conducted to determine the precise number of jobs and tax dollars
that would be generated, but it fails to cite any provisions of CEQA or the Guidelines for
that proposition. In reality, CEQA only requires that the findings be supported by
substantial evidence in the record. (Guidelines,§ 15093, subd. (b).) Appellant also
argues there is a potential risk that some jobs would simply represent workers coming
from existing businesses that decided to relocate to the project's commercial shopping
center. But even if that were true in the short run, the City has a history of successfully
backfilling vacated stores with new tenants, as noted previously. We conclude there was
16 The precise number of jobs was not specified. One business person estimated that if Save
Mart became the anchor tenant, it would bring 100 to 120 jobs. Appellant's traffic consultant
factored into its analysis 90 retail and service employees .
44.
substantial evidence in the record to support the City's findings that the project would
indeed lead to job creation, economic growth and increased tax revenues.
Additionally, the project would plainly result in the construction of a number of
needed and beneficial transportation improvements, including bus transit improvements.
Infrastructure improvements to accommodate growth are a recognized benefit that can be
relied upon in a statement of overriding considerations. (Cherry Valley, supra, 190
Cal .App.4th at p. 357 .) The City's findings also cited certain General Plan policies that
would be furthered. Although appellant c}>:aracterizes the cited General Plan policies as
too generalized to be a suitable consideration, it does not refute this factor. On balance,
we conclude that the City's findings in support of its statement of overriding
considerations were adequately supported by substantial evidence in the record.
!.'I
Although appellant disagrees with the City's final decision to balance the considerations
involved in the way that it di~ appellant has failed to show the City prejudicially abused
its discretion.
DISPOSITION
The trial court's denial of the petition for writ of mandate and the resulting
judgment in favor of City is affirmed. Each party shall bear their own costs on appeal.
KANE,J.
WE CONCUR:
HILL,PJ.
SMilH, J.
45.
Filed 7/1/16
CERTIFIED FOR PUBLICATION
IN TIIE COURT OF APPEAL OF THE STAIB OF CALIFORNIA
FIFTH APPELLATE DISTRICT
NARAGIIl LAKES NEIGHBORHOOD
PRESERVATION ASSOCIATION,
Plaintiff and Appellant,
v.
CITY OF MODESTO,
Defendant and Respondent;
BERBERIAN HOLDINGS, L.P .,
Real Party in Interest and Respondent.
F071768
(Stanislaus Super . Ct. No. 2006259)
ORDER GRANTING PARTIAL
PUBLICATION
It appearing that part of the nonpublished opinion filed in the above entitled matter
on June 7, 2016, meets the standards for publication specified in California Rules of
Court, rule 8.l IOS(c), IT IS ORDERED that the opinion be certified for publication in the
Official Reports with the exception of parts I.C., I.D., and II. of the Discussion.
KANE,J.
WE CONCUR:
HILL,P.J.
SMITII, J.
46.
From: susan buxton [mailto:ssbuxton@yahoo .com1
Sent: Thursday, July 27, 2017 10:33 AM
To: Joel Paulson
Cc: Marice Sayoc; Rob Rennie; BSpector; Steven Leonardis; Marcia Jensen
Subject: North 40 Conditions of Approval
Dear Joel,
In the event that the Council does grant the application, we request the following
conditions of approval be added to any permits granted.
1. The applicant shall install MERV 16 air filters in all housing structures with non-
operable windows and shall replace the filters at least three times a year.
2. Within ten days of the first tenant moving into the affordable housing structure, the
applicant shall provide a daily shuttle service that runs at least six times per day between
8 AM and 8 PM with pickup and drop-off service from and to the project site. Further,
a. The service will provide transportation to and from at least the following locations:
local retail areas in Los Gatos, Town of Los Gatos Senior Services, medical/dental
appointment locations, and the closest VT A light rail station in Campbell;
b. The pickup and drop-off service will occur inside the project site, and not on the
public streets surrounding the site;
c. The driver will be a at least 21 years of age and licensed to drive a shuttle bus;
d. The shuttlebus will have the capacity to seat at least 16 persons and wheelchairs;
e. The shuttlebus will be designed to accommodate persons with walkers and persons
in wheelchairs;
f. The drop off and pick up hours will be spread throughout the day and evening; and
g. The applicant wil! provide routine maintenance for the shuttlebus
3. Prior to issuance of a certificate of occupancy, the applicant shall provide
the planning director with a proposed copy of the CC&Rs that include hours of
operation for the specialty market, all restaurants, the park, open spaces, the
playground, any swimming pool, and for ail deliveries, trash, and recycling pickups.
I would also like to add that the amendment process of the Specific Plan to Improve the
clarity and direction for developing the remainder of the North 40 property should begin
as soon as possible. This can be done while applications are pending and therefore,
approval of future applications should be postponed until the amendment process is
complete.
Sincerely,
Bob and Susan Buxton
Los Gatos, California
AHDllEW L. FAIER
RAlrH J. SWANSON
l'EGGY l. 9'RIWGGAY
JOSe'H E. DWORAK
SAMUEL L. f ARt
JA"1ES P. CASHMAN
5mlEN J. CASAD
NANCY J. JOHfoolSOH
JEROLD A. ll!IJON
JONATHAN D. WOLF
ICAIHlEEN K. SlrLE
ICfvtl r. ICEl.LEY
MARI; MAJ:lfWICl
RETIR!D
SANFORD A. IERUNH
SAMUEi. J. COHEN
ltUGH L ISOLA
JEFfltEY S. KAUFMAN
JOllE KOUSION
BlllAN L. SHEILER
JOHN F. DOMINGUE
HARRYA,lOPEZ
OWi\.;$ w. VOii£
MICHAEL \llOl.AHll
04R1$11NI H. LONG
AARON M. VAl.IHTI
CHRISTll\N !, PICONE
SUSAN f . •ISHoP
SANDRA G. SIPlil. VEDA
MICHA£\. I. UAM5
llOIB11 W. HUMPHREYS
lJNDA A. CALLON
llOlal I. CHOllB
Joel Paulson
ti BERLINER
n COHENLLP
\~~
TEN ALMADEN BOULEVARD
ELEVENTH FLOOR
SAN JOSE. CAllfORNIA 9.5113-2233
TELEPHC>llE':(406)286-5800
FACSIMILE: 14081998-5388
www.borii ner.com
loanch Ol!ices
Metced. CA • Modeslo, CA
July 27, 2017
Director of Community Development
Town of Los Gatos
110 E. Main Street
Los Gatos, CA 95030
ipaulson@losgatosca.gov
IHOMAS I'. MUlll'HY
ElLEEN P. KE....s>Y
LAURA l'AlAZZOlO
KIMIERLY G. FLOllES
OAWNC.SWfATI
MICllAB. J. CHiNG
GHAZAISf MOOA8ESf
TVUiR A. 5"EWEY
H.St!INNYW
Of COUNSEL
STEVEN l. HALLGllMSON
fl!ANK I. UltlAUS
ElllCWONG
SARA I. POUOC~
leAU C. COt!l!flo\
LAWRENCE I.JN
DAVID A. IELLUMOlll
SIEPHEN C. SCORDBl5
HARRY I.GU
M1CKAEL C. IRANSON
JUSTIN 0. PRUElll
ANTHONY DeJ.\Ga
NANCY L. lllAl'CJI
lltCHARD E. NOSll' .....
~lAUM MdllGH
Re: Eden Housing Inc., et al v. Town of Los Gatos (Santa Clara County Superior
Court Case No. 16-CV-300733)
Town Council Agenda: August l, 2017
Dear Mr. Paulson:
This letter is written on behalf of the Project Applicants SummerHill Homes, LLC,
Grosvenor USA Limited, and Eden Housing, Inc. in response to certain public comment that bas
been raised about the Project. Submittal of this letter is not a waiver of our stated position that the
Project must be evaluated based upon the existing record at the time of the last Town Council action
on this Project on September 6, 2016.
In reviewing the written communications that have been submitted to the Town as posted on
the Town's website as well as oral testimony offered at the July 24, 2017 Town Council hearing, it is
clear that no new issues have been raised. Furthermore, none of the issues or testimony produced
could serve as substantial evidence to justify the denial of the Project under the Court's writ. To
comply with the "By Right" requirements of the Town,s Housing Element, the mandatory provisions
of the Density Bonus Law, and the requirements for decision making under the Housing
Accountability Act, the Town should now move to approve the Project applications.
Joel Paulson
July 27, 2017
Questions Regarding Objective Standards
In its Decision and Judgment, the Court rejected the Town's findings for denial because they
were not based on objective standards. Some of the previously raised subjective issues, like
affordability and the spread of Wlits, were once again raised in public testimony. The Court has
already rejected these as bases for denial.
Town Council requested Staffto respond to the letter from Matthew Hudes that proposed his
own, personal definition of "objective." Nothing in the letter contains evidence of a failure to
comply with any objective standard of the Specific Plan. For example, (a) Mr. Hudes• letter points
to various provisions of the Specific Plan that do not meet any possible legal definition of
"objective," including those definitions proposed in the Staff Report or in my July 21, 2017 letter to
the Town Council (e.g., the Specific Plan Area "should be treated with unique image, or 'brand"');
(b) his interpretation of the Design Guidelines is not correct (e.g., there is no mandatory requirement
regarding orientation of commercial buildings (see Specific Plan page 3-1: "A guideline, which is
denoted by the use of the word "should," is not mandatory."), but in fact they are indeed oriented
towards streets as suggested); and ( c) bis suggestion to radically change the street layout would itself
conflict with a major requirement of the Specific Plan.
Issues of Public Health and Safety
The Town also received public input that claimed to raise objective issues of public health
and safety. These comments were almost exclusively focused on traffic and air quality impacts, both
of which were already studied extensively in the Environmental Impact Report for the North 40
Specific Plan. None of the material presented in writing or in public testimony satisfies the heavy
burden imposed by the Housing Accountability Act. As Staff has repeatedly advised, Government
Code Section 65889.5, subdivisions GXl) and (2) are very restrictive as to what evidence can be
considered. They provide that fmdings of denial can only be made if:
(1) The housing development project would have a specific, adverse
impact upon the public health or safety unless the project is disapproved or approved
upon the condition that the project be developed at a lower density . As used in th is
paragraph, a "specific, adverse impact" means a significant, quantifiable, direct,
and unavoidable impact, based on objective, identified written public health or safety
standards, policies, or conditions as they existed on the date the application was
deemed complete.
(2) There is no feasible method to satisfactorily mitigate or avoid the
adverse impact identified pursuant to paragraph (1), other than the disapproval of
the housing development project or the approval of the project upon the condition
that it be developed at a lower density.
Based on the language from subdivisions G)(l) and (2) above. the following are our
responses to the issues that have been publicly discussed and why they cannot be used as bases for
findings of denial.
482~224-9548¥4
ALA09427073 -2-
Joel Paulson
July 27, 2017
Traffic. Several speakers provided anecdotal accounts claiming that traffic has been getting
worse in recent years. None of these claims constitute a "significant, quantifiable, direct, and
unavoidable impact, based on objective, identified written public health or safety standards, policies,
or conditions as they existed on the date the application was deemed complete."
Traffic impacts were fully analyzed in the Specific Plan EIR., and the Initial Study done for
this Project concluded that the Project was covered in that EIR and that no further analysis was
necessary. As the Town Attorney has repeatedly advised the Council: (a) CEQA cannot now be
reopened; and (b) because of the "By Right" approval process specified for development in the
North 40, the Project is not subject to CEQA anyway . Nonetheless, the applicants agreed to have an
Initial Study conducted, which concluded that the Project complied with the certified EIR.
Several speakers also referenced subdivision ( e) of the Housing Accountability Act, which
requires compliance with Chapter 2.6 of the Government Code (commencing with Section 65088).
That Code section is part of the legislation regarding the Congestion Management Program that was
added by statute in 1989. The EIR for the Specific Plan specifically reviewed the requirements of
the Congestion Management Program in evaluating traffic impacts of the Specific Plan. This is not
new information and cannot be used as the basis for a finding of denial .
Air Ouality. Several speakers also raised concerns about the air quality within the North 40.
Again, this issue is not a new one and cannot be used as the basis for a finding of denial; it was
studied intensively in the BIR for the Specific Plan. See Draft EIR pages 3-21through3-51 (2 AR
659-90). The health effect oflocating housing on the site was exhaustively analyzed by the Town's
consultant Illingworth & Rodkin, who modeled and analyzed air quality concentrations on the North
40 site using the appropriate protocols of the Bay Area Air Quality Management District, the
California Air Resources Board, and the U.S. EPA. They concluded that there was a mitagable
health risk for a small section of the North 40 site at the southern edge along Route 17. The risk was
mitigable to a level of insignificance by the installation of high efficiency filtration devices in the
residential units in this area. That mitigation is incorporated into the Project, and, as a result,
residential use in this area (as well as the rest of the Project area) was found to be a less-than-
significant risk to public health or safety.
Some of the public also commented on a letter submitted to the Town by Dr. Marland
concerning locating housing in proximity to :freeways. These commen~ likewise do not constitute
new information showing that the Project would have a "significant, quantifiable, direct, and
unavoidable impact, based on objective, identified written public health or safety standards, policies,
or conditions as they existed on the date the application was deemed complete."
The letter from Dr. Marland reargues the analysis already conducted in the EIR. He also
cites an article in the New England Journal of Medicine that analyzes pollution impacts in some
39,716 zip codes within the United States. The article is a very high-level study of the relationship ·
between air pollution and health impacts, but it actually does not discuss issues regarding living near
a freeway; in fact, the words "freeway," and "traffic" do not even appear in the article . He also
claims that "in 2017 the CA Air Resources Board took the stand that no new housing should be
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Joel Paulson
July 27, 2017
closer than 500 feet to a freeway." Tbis is not correct. The California Air Resources Board has not
imposed any such requirement. Its recommendations about how to analyze and mitigate potential
health impacts of air pollution were analyzed in the North 40 EIR. as well as guidance from the
BAAQMD and the U.S. EPA Again, this is not new informatiol) and cannot be used as the basis for
a finding of denial.
In summary, to date there has been no new information presented that could justify denial of
the Project or approval at a lower density. We urge the Town to approve the Project as submitted.
ALF
Cc: Marice Sayoc. Mayor
Members of the Town Council
Town Clerk
Town Attorney
Clients
4824-0224·9548v4
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Very truly yours,
B~P
ANDREW L. FABER
E-Mail : andrew .faber@berlincr .com
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