Item 01 - Study Session - Memo & Exhibits 1-3To:
From:
Subject:
Date:
REMARKS
MEMORANDUM
Planning Commission
Joel Paulson, Director of Community Development 1 /
Planning Commission Study Session
October 14, 2016
On October 19 , 2016, the Planning Commission will have a Study Session that will include
presentations and discussion regarding the following topics:
1. The Brown Act and Conflict of Interest
2. The Planning Commissioners ' Roles, Duties, and Responsibilities
3. Planning Commission Policies and Procedures
4. California Environmental Quality Act (CEQA)
Exhibit I contains an excerpt from an Institute of Local Gov ernment document titled The
Planning Commis sioner 's Role.
Exhibit 2 contains the recently updated Planning Commission Policies and Procedures. The
change addressed remote participation. The Town Council approved this change on September
20, 2016.
Exhibit 3 contains an excerpt regarding CEQA from the CEQA Deskbook.
Renee Gurza , former Morgan Hill City Attorney, will be joining the Town Attorney, the Town
Manager, and me to provide guidance and expertise to the Commission. The Town Manager is
attending as an additional resource due to her experience with Planning Commissions. We look
forward to an interactive discussion with the Commiss ion on these topics.
Exhibit:
I. Excerpt from an Institute of Local Government document (The Planning Commissioner 's
Role)
2. Planning Commission Policies and Procedures (approved by Town Council on 4/21/15)
3. Excerpt regarding CEQA from the CEQA Deskbook
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:\D EV\PC R E PORTS\2 0 16\PC Study Sessio n .doc
[ 5 ECTIO N 1
The Planning C ommissioner's Role
W H AT IS A PLANN I NG C O M M I S SI O N ?
T he planning commission is a permanen t committee
made up of five or mo re individuals who have been
appointed by the governing body (c ity council or board
of supervisors) to re view and act on matters related to
planning and development. I Mos t planning
commissioners arc lay people without any prev ious land
use c:q)eriencc. Commissioners serve at the pleasure of
the council or board of supervisors, so commission
membership may change in response to changes in those
bodies. A local agency need not create a planning
commiss ion; in some jurisdictions, the governing bod y
functions in that capacity.2
WH Y PLAN ?
Planning is a proactive process that establi shes goals and
policies for directing and managing future growth and
d evelopment. Lo cal agencie s p lan to a ddress
I Cal. Gov't Code§ 65100.
l C al. Gov't Code~ 65 !01.
fu ndamental issues such as the Location of growth,
housing needs, and environmental protection.
Additionally, planning helps account for future demand
for services, including sewers, roads, and fir e protection.
In addition , planning:
• Saves Money. Good pla nning can save on
infrastructure and essential service costs.
• Sets Expectations. Planning establi sh es the gro und
rules for d evelopment. A comprehensive gene ral
plan, for example, sends a clear sig nal that accepted
standards and procedures apply to communi ty
d eve lopme nt. This will not eliminate conflicts
entirely, but at least sets expe ctations that can help
minimize conflict.
• Improves Economic Development and Quality of
Life. Economic development and quality of life issues
go hand in hand because businesses want to locate in
communities wh ere their employees wan t to li ve.
Planning o utlines al ternative s and choices so that the
community can promote employme nt and economic
we ll-being.
• Provides a Forum for Reaching Consensus. Planning
processes, su ch as the deve lo pment of the ge n eral
plan, provide a forum for seeking community
consens u s. Planning efforts should always involve
broad a nd dive rs e segments of the commu nity to
assure that the resulting p la n fully addresses
commu nity needs. This w ill provide th e public with a
se nse of ownership ove r the pla n.
.EXHIBIT 1
·---~ Piar111ing Co111missioncr's Himdbook
l __ _j
2
o Connects People to the Community. Planning
ensures tha t architectural and aesthetic elements are
incorporated into projects to connect peop le to their
co mmunity and establish a sense of place.
o Protects Property Values. Property va lu es are
enhanced when a community pl ans tor parks, trails,
playgrounds, transit, and other ame nities. Planning
also protects property and property values by
se parating incompatible land uses. Imagine if a
fac tory co uld just set up sh op in the mi dd le of a
neighborhood. Planning assures that th is will
not occur.
o Reduces Environmental Damage and Conserves
Resources. Planning help s id ent if>' impo rtant natural
and c ultural resources and can ch annel dt•velopmcnt
in a way that protects or augments these resources.
THE COMMISSION'S DUTIES
The planning ..:om mission p lays a ce n tr a l role in th e
planning process in three important ways. first, it acts
as an advi sory bo ard to the main govern ing bo d y on all
planning and development iss ues. Second, the
commiss io n assures that the gener al plan is
implemented by reviewing development applications
on a case-by-case basis. Ju st as yo u build a building one
brick at a time, yo u implement a communit y vis ion
one project a t a time. Third, the commission functions
as the decision-making body for many proposals.
However, any planning co mmiss ion ac ti on can be
appealed to the gove rnin g body, whi ch can u pho ld the
commiss ion's decision, overturn it , modify it, or se nd it
back for further study.
Planning co mmiss io n d uties vary depending on the
j urisdicti o n . You ca n learn about your commission's
particular responsi bi liti es by ask in g the planning
department. Most commissions have the following
responsib ilit ies:3
o General Plan. Ass ist in writing the general plan and
hold public h earings o n its adoptio n. (The governing
body retains a uthority to actually adopt the gene ral
plan.) Promote public interest in th e gene r al plan.
League ot Calif(lrni,l Cili.es
Consult with a nd ad vise public o ffi c ials a nd agencies,
utilities, organizations, and the p u b li c r ega rding
implementation of the ge neral plan . Also re view,
hold hearings on, and act upon proposed
amendments to the plan.
o Specific Plans. Assist in wr it in g any specific plans or
communit y pla ns and hold public h eari ngs on s uch
plans. (Th e gove rning body retains authority to
actually adopt specific plans.) Also review, h o ld
h earings on, and ac t upon proposed a m endmen ts to
such pl an s.
o Zoning and Subdivision Maps. Review, hold hearings
on, and act upo n zo ni ng ordinances, maps,
conditional u se permits, and variances. Si milarly
consider subdiv ision applications.
o Individual Project Approvals. Review individual
projects for co n sistency wi th the general pl an, any
applica ble specific plans, the zoning ordinance, and
o th er la nd use pol ic ies and reg ul ations.
o Report on Capital Improvements Plans. Annually
review the jurisdiction's capital improvements
program a nd the public wo r ks projects of other local
agt•nc ies for consistt•ncy with th<> g(•neral plan.
o Coordinate Planning Efforts. Coordinate local pla n s
a nd progr ams with those of other public agenc ies.
o Consider Land Acquisitions. Report to the governing
body on the consistency of p roposed public land
acqui sition or disposal with the general p la n.
o Special Studies. Unde rta ke specia l planning studies as
n eeded .
\Vi th so many responsibiliti es, it is impor tant for every
planning com mission to think about how it will divide
its t im e be tween day-by-day approvals a n d lo ng-range
planning efforts, both o f which are im por ta n t. It is easy
to get caught up in the day-to-day e fforts at t he expe nse
of long-range planning.
See fore.<mliplc Cal. Gov't Code§§ 65103, 65353,65400, 65 401 , 65 402,65854 and 66452.1.
League o f Cali fo rnia Ci tie s The P/,wning Commissioner'.< Role
OTHER LOCAL PLANNING BOD I ES
Som e local agencies divide la nd u se decision-making by creati n g posi t io ns and commissions to foc us on
s pecific as pects of the la nd use plannin g proces s.
• Bo ard of Zoning Adjustment. A local body, crea ted b y o rdinance and appointed b y the governing body,
whose respons ibi lity is to consider reques ts for variances.
• Building Official. The person responsible for the admi n istration and enforcement of building, housing,
pl umbing, dect.ricaJ, and related codes.
• Historic Preservation Commission. A com mi ss ion appointed by the gove rnin g body cha rged wi th carrying
out the historic preservation chapter of the zon in g ordinan ce.
• Zoning Administrator. An appo inted official who implements zoning ordinance and is also often
empowered to make decisions concerning d esign permits, adm inistrative u sc permits, and oth er p ermits as
provided fo r in th e zoning ordin<~nce.
• Zoning Board. An appointed body thdt hears and decides matt e r s rela ting to the application of the zoning
ordinance and considers a ppeals of zoning ddminis tra tor's decisions.
PUBLIC SERVICE ETHICS
As a p lann in g commissioner, you wield co ns ide rable
power over how your communi ty grows and develops.
With this power comes the expectation that you will
hold yo u rse lf to the h ighest ethical standards. Part of
b e ing e thi cal means exercisi n g your power in t he public 's
interests, as opposed to personal self-interest or other
narrow, private interes ts . T he chart on pa ge 5 highlights
some of the e th ical va lues associated with public service
and wha t they mean in terms of yo ur duties as a
plan ni ng com mi ssio ner.
There are a number of sources of g uid ance on yo ur
et hi ca l obl.igatio ns as a planning co mmi ssione r. One is
the law. California h as a co mple x arr<J.y of laws relati ng to
ethi cs th a t dl"e summarized in this section. T h e law,
however, merely sets a mi n imum standard for e thi c<JI
condu ct. just because an ac ti on is legal doesn 't mean
that it is ethical. J:or example, it may be legal for yo u to
vo te on your best friend 's p roject appli cation, but if
everyon e in the co mmunity knows h ow close th e two of
yo u are, will th e community truly feel that you we re able
to put the community's inter ests ahead of your perso nal
loyalti es? An o ther source of guidance may be yo ur
agency's own code o f e thics , if it has one. Many cities
~r More Information
f or more resources designed to assis t lo cal
officials in working through ethical
dilemmas, visit the website for the Institute
for Local Self Government at
\V\Yw.ilsg.orgltrust.
and counties have adopted codes of ethics to serve as a
guidepost in local decision-making.1
At som e point in your service as a p lanning
commission er, you wi ll like ly face two common types of
eth ical dilemmas. The first invo lves si tu ations in wh ic h
do ing the right th ing wi ll come a t a sig nifi cant personal
cost to yo u or your public agency. In these si tLt a tions, the
an swer is relat ively simple. The bouom line is that being
eth ical means doing th e right thing for the co mmunity
regardless of personal costs.
The second type o f ethical dilemma involves those
situation s in which there a re two co nfl ic ting se ts of
"righ t " va lues. In these instances, drawing the eth ica l
bot to m line is more diffi cult. If you find yourse lf face d
4 For mor<' info rmation Jbout codes of ethit::s. see Dc vr.h•pi,,g a Lomt t\gt'tH)' f.rhi~ Codr~· A ProaJ)-n rientr.d Gttide, publishe-d by the Institute fOr Loc:t l Self Go ver nme nt and
available .lt www.i lllg.org.
3
4
Plur111ing Commissio1Jer 's Handbo ok
with a "right versus right" decision, the following
ques tions may help you come to an answer:
• Which ethical va lues are in conflict (for example,
trustworthiness, compassion, loyalty, responsibility
fairness, or respect)?
• What are the facts? What are the benefits to be
achieved or the harm to be avoided by a particular
decision? Is there a Je~..:ision that does more good than
harm?
• \Vhat are your options? Is there a course of action that
would be consistent with both sets of values?
• Is one co urse of action more consistent with a value
that is particularly important to yo u (for example,
promise-keeping or trustworthiness)?
• What decision best reflects your responsibility as an
officeholder to serve the interests of the community
as a whole?
• \\'11at de c ision will best promote public confidem·c in
the planning commission and yo ur leadership?
For example, as a planning commissioner, you will
frequently be asked to make exceptions to your
jurisdiction's planning laws . A developer may, for
instance, ask for a general plan amendment to enable a
project to be approved. The developer is likely to point
to numerous benefits that will flow to the community as
the result of the amendment.
In coming to a decision in such a situation, the first step
is to conside r what ethical va l ues are at stake. One might
be fairness to those property owners who d eve loped
their properties in accordance with the policies
expressed in the general p lan. Another might be
compassion for the developer seeking the amendment:
if it is not economically feasible to deve lop the property
as envisioned by the general plan, perhaps an
amendment is in order.
The next step is to weigh the competing costs and
benefits. Although the developer has identified the
benefits to the community associated with approving the
amendme.nt, what are the bendlts of adhering to the
ge neral plan? Will an amendment in this situation open
the door for other amendment requests? How might the
Lea gue of Ctlifornia Cities
planning commission fairl y evaluate those requests while
still maintaining the overall integ rity of the general plan?
Are there options that might enable the com munity to
reap some of the benefits described by the developer
while still being consistent with the general plan as
written?
Finally, co nsider which approach will best promote the
public's confidence in the planning process. ·will the
public's confidence be undermined if the commission
doesn't enforce the plan? Or will denying the
amendment look so rigid and unfair to the applicant
that it will undermine the public's faith in the planning
commission as a decision-making body? What decision
will best support the commission's stewardship of the
community's growth and development?
The answers to the questions listed above will vary with
eaLh si t uation and like ly will no t always be dear-cut or
obvious. However, asking difficult questions and
thoroughly evaluating the answers can go a long way in
helping you make consistently ethical decisions that
further the public's interests.
ETHICS LAWS
California law promotes ethics in two ways: by
relluiring public disclosure and by prohibiting certain
actions. The tlnancial state ments that you (and many
public officials) must ti le with the Fair Political Practices
Commission (FPPC) are an example of disclosure. In
essence, the law allows the public to scrut inize the
rela tionships between your personal finances and publiL
decision-making. Disclosure laws allow the public
(typically with the assistance of the media) to asse ss
whether there may be too close of a relat ionsh ip
between your eco nomic interests and the decisions you
m ake as a public officiaL
In other instances, the law goes a ste p further and
prohibits certain actions. For example, an official must
disqualit:j him or h erself from participating in a decision
that will affe ct h is or her financi al in te re sts. This doe s 110/
necessarily mean the disqualified official ha s do ne
anything illegal or corrupt. It simply means that the
public's interests are better served by removing any
question as to the official's decision-making
motivations.
League of California Ci ties The Pla11ning Co mmi.<sicm er 's Role -------------------------------------------------
Public Service Valt1es for Commissioners
E le ss
• 1 r eYic w applications and make other d ecisions
basl·d on the merits of th e i ss ues.
• 1 houor t h (' law's and t h e public'~ cx:p('c tation that
th'' general plan and othe-r planning policies will
g overn d('velopment decisions in our j urisdict ion.
• I suppo r t t he public's right to know and promote
m eaningful public involvement.
• l am impart ial and do not favor dcvclope.rs or
o thers who are in a position t o h elp m e.
• 1 promot e equality and t reat ,1.11 people, projects,
and perspectives equitably.
Compassion
• J r~>co gnizr govcrnm <'nfs responsibilities to sodery's
less fo r tunate.
• I consider c..xc eptions t o planning policies when there
are unintended consequences o r undue burd<>ns .
• I realize that some people ar~ intimidated by the
p ublic process an d try to make their interactions as
stress -free as possible.
• I convey the agency's care for and commitme nt t o its
co mmunity members .
• 1 a m attuned to and care ab o ut th e needs of t he
public, officials, and staff.
r-;:----.. -------, I Respect for Oth ers r----------Respon sib ility
• I treat fellow o fikials, staff, <Uld
the public with courtesy, even
when we disagree.
• I foc u s ou the merits in
discussions, not person:ilities,
character, or m otivations.
• l gain value from diverse opinions
and build consensus.
• l follo w through on comm itments,
keep others informed, and m a ke
timely responses.
• I am approachab le and
open-min ded and I convey this
to others.
• I listen carefull y and ask q ue st ions
that add value to discussions .
• I am engaged and responsive .
• I involve staff in all meetings that
a ffect agency busin ess.
~icTrust
• l come to meetings prepared.
• I d o not disdose confidential information
without proper legal authorization.
• T represent the offici.U posi tions of the
agency to the best of my a bility when
authorized to do so.
• I expli citly stare that my person al
o pinions do not represent the agency's
position and do not allow the
inference th at they do.
• I re fr ain fro m a ny act io n that m ight
appear to compromise my independent
j udgmenL
• !take responsib il ity for my own actio ns,
even wh en it is un comfor t:thle to do so.
• f do n ot use in fo rmation that I acquire in
m y public capaci ty for personal advanlllge.
• r do not represent third puties' interests
before my agency o r neighboring agencies .
Vision
• I am truthful with m v fellow com-
missioners, the publi::, and o thers.
• I do not promise that whi ch I have
reason to believe is unrealistic.
• I am prepared t o make unpopula r
decisions to fur ther the public's
interest.
• I credit others' conrributiOrts in
moving our community's in teres ts
forward.
• 1 do n.ot knowingly use !alse or
inaccurate information to su ppor t
mr position.
• l excuse myself from decisio ns when
my or my lamily's fm ancial in lerem
may be aflected by rny agen cy's
actions.
• I disclose sm pected i nstances of
corruption to the appropriate
a u thorit ies.
• I remember that m y o bl igat ion as a public official
b to serve the whole co mmunity.
• I rn~ke sound planning deci:sioos that im plem ent
th~ policie, expressed in the general plan.
• I work to as sure that t he vision e:>Cpres.ed in the
general plan is one that works to improve the
qual ity o f life in mr community.
• J cons ider th e interest s o f the e ntir~ communi ty in
rea ching m y decis ions.
• J give full considerations to all ~pe el$ o f a proje;t,
including p rotection of the environment and the
need for aftiJ rdable housing.
• i pro mote the effi cient use o f the agency's
reso urces.
• I ba la nce the fiscal impacts o f a l'rojcct with the
agency's so cial and planning goab.
• l am proa<:tive and innovatil·e when s etti ng goals
and con si dering proposal s.
• l maint.tin consistent standards but am ensitive
to the need f<U compromise, thinking outsi de the
box , and improving e.mt ing parad igms.
• T promote intelligent innovation to forward the
agen cy's polic ie$ and services.
• I consider the broader regional and )tatewide
implication s of the ;tgency's deci si ons and hsu es.
5
6
Plan11ing Comm issio11er's Handbook
California's ethics laws fall into three gene ral categories:
(1) those involving poss ible fin ancial gain by you as an
officeholder, (2) those involving the use of your office
for personal advantages and perks, and (3) those
involving si tuations in which your ability to co nduct a
fa ir and impartial process might be questioned. Eac h of
these relates back to the overarching goal of assuring the
public that governmental decisions are made based on
what best serves the public's interests.
Financial Gain
The notion behind finan cial gain la ws is that the public
has a right to know about a public official's financial
situat ion and that office holders should not even appear
to be influenced by the effect of their decisions on their
personal finances. Financial gain laws include:
• Financial Interests-Disclosure and Disqualification
Issues. Public officials must periodically disclose thei r
financial interests-such as interests in real property,
League ol California Cities
investments, business position s, and sources of in come
and gifts-to the public.5 This disclosure is made on
a form called "Statement of Economic Interes ts;' also
known as "Form 700." A public official cannot make
or attempt to influence a governmental decision if it is
reasonably foreseeable that the decision could have a
"material financia l effect" on his or her financial
interests.6 The FPPC has developed a series of
questions (known as the "eight-step process") to
determine wh e ther an official must be disqualified
from participating in a decision. If you are worried
that an upcoming decision will have an effect-
positive or negative-on one or more of your financial
interests, talk with your agency's attorney (not
planning staff) as soon as possible.
• Interests in Contracts Prohibited. A public ollicial
may not have a financial interest in any contract
made by the board or body of which the official is a
member.? The law is very strict on this point. Such
TH I: STATE POLITICAL REFORM ACT: K E Y T HI NG S T O KNOW
• California's disclosure and d isqualification requirements are administered by the Fair Political Practices
Commission (FPPC), which gives both informal and formal advice on the application of these requireme nts .
Check out the FPPC's website (www.fppc.ca.gov) for contact information, as well as for other useful
information relating to the FPPC's administration of the Political Reform Act .
• For purposes of disqualification, key areas of financial interest of co ncern to the FPPC include business
entities in which an official has an investment of $2,000 or more; real prope rty in which an official has a n
interest of $2,000 or more; sources of income of SSOO or more within the preceding year; business entities in
which the official is a director, officer, partner, trustee , employee, or manager; and anyone from whom the
official has received gifts of $340 or more in the preceding year.
• When in doubt, the FPPC will usually err on the side of disclosure and disqualification.
• The city attorney's or county counsel's advice will not immunize a n official fro m prosecution for violating
disclosure and disqualifi cation requirements. lloweve r, it is nonetheless wise to consult agency counsel as
soon as yo u suspect that you may have an issue under the Political Reform Act.
• Violations of the Politi cal Reform Acr are subject to civil and cri minal penalties, depending on the severity of
the offense. For example, knowing and will ful violation of the a ct is a misdemeanor and subjects the vio lator
to a fine of the greater of $10,000 or three times the amount not repo rted.ll
• For information on how to disqualify yourself, see Sectjon 2, page 14 .
; See C"l. Go v'l Code §~ 87200 a nd tollowing.
' Sec Cal. Gov't Code§§ 87100 and followi ng.
7 Cal. Gov't C o de ~ 1090 .
' Cal. Gov 't C o de§ 91000 \b i.
League of California Ci t ies
con trac t s are vo id.9 Under most circ u m stances, the
p rohibitio n canno t be avo ided by disq ual ifyi ng
oneself fro m participating in the decision on the
contract. Aga in, co nsu lt with your agency's attorney
immediately if t her e is a co nt ract before the
com mi ssion in which yo u may have an inte res t.
• Bribery. Reques t ing, rece iving, o r ag reeing to re ce ive
a nyth in g of value in exchange fo r an o ffici al action is a
crime. ln additio n to c r iminaL p e nalti es, an individ ual
co nvicted of b ribe ry forfeits hi s o r her o ffi ce an d is
disq ualified fro m h o ld ing publ ic o ffi ce in t h e future .' o
Personal Adva n tages a n d Perks
The law s tri ctly li m its the deg ree to which a n
o ffi cehold er can rece ive benefits rela tin g (or app earing
to rel ate ) to h is or her statu s as an officeh older:
• G i fts. With cert a i n exception s, a p u bl ic officia l m us t
disdose mos t gifts over $50 o n h is or her Statem ent of
Econo m ic In terests a n d m ay n o t receive gi ft s from an y
o n e source t hat tota ls o ve r $340 in a sin gle year.' I
Gi fts in cl ude m eals, ce rta in ki nds of travel p ay m ent s,
and rebates or disco u n t s to public o ffi c ials n ot offered
to others in the u sual co urse o f business.12 T he law is
part icularly str ict about fr ee transport ation pass es
(not incl uding frequent fli e r awards offered to
ever yo ne); acceptance o f s uch pas ses results in
immediate loss of o ffi ce.D
• Speaking Fees or Hono rar ia. Publi c offici als m ay no t
receive p aym en t s fo r giving a s p ee ch , writing an
articl e, or a tt e nd ing a conference o r m ee ting. Lim ited
exceptio n s apply. Free co n fe ren ce admiss ion, lodging,
and mea ls provided d irec t ly in connection w ith
s peeches w ithin Cali forn ia, for example , are not
co ns idered prohibited hono raria and need n o t be
reported . I 4
• Use o f Public Resources. It is a felony to m isuse
p ubli c fu nd s, wh ich can incl ud e s uch t h in gs as
s ub mitt in g inacc urate o r in fl a ted exp en se repo rts fro m
traveling o n agency b usin e ss . P ublic res ources
(in cl ud in g sta ff time and o ffi ce s uppli es) m ay no t be
u se d for e ith e r pe rsonal or politi cal pu r poses.J 5
~ C~tl. Gov't Cod~§. I 0~2.
10 Cal. Pe nal Code§§ 66, 98.
II Cal. Gov't Code §~ 8 7200 , 8 7207; 2 Cal. Code of Regs.§ 189•ltl.c
f$3-10 amou!ll vali d through 2004).
"Cal. Gov't Code~ 820c8tai.
The Pia 11n ing Commissio ner's Rol e
~'More Information J
Insti tu te fo r Local Self Govern ment, A Lo cal
Official's Guide to Eth ics Laws (2002), availab le
a t www.ilsg.or g.
California Attorney General 's Office, Conflicts of
I11rerests (1 998), avail able at w·ww.caag .s tate.ca .
us/puhlications/co n fl ictlconfli ct.pdf.
Fai r Political P rac ti ces C ommission booklets,
available at w'Nw.fp p c.ca.gov o r th rou gh the
to ll -free advice line (866-ASK-FPPC).
• Common Law Bias fr om Persona l Inter est s. A stron g
perso n a l interes t in a de cision can b e the b asis fo r a
find ing o f what is kn own as "co mmo n lmv bia s."
Common law b ias is sufficient to disquali fy a public
officia l fr om pa n icipa ti n g in a d ec is io n, part icul arl y if
t he officia l is s itting in a quasi-j udic ial capacit y (see
pag e 20 ). Fo r example, one court fo und a council
m ember bias ed o n a prop osed addition to a ho m e in
his neigh borhood beca use the addi tio n would blo ck
the co u nci l membe r 's view of t he oce an. I 6
Fairness and Im p artial ity
Ofliceh olders sho ul d make decisions in a fa ir and
impa rtial manner. Ke y laws that plan ning
co m m iss ioners n eed to be aware of include:
• Campa ign Contributions. Co m m issione rs who a re
runnin g for office must d isqu ali fy themselve s from
en titlem ent proceedings-such as la nd u se perm its-
if the y re ce ived campaign co ntr ibuti o n s of more tha n
$2 50 d uring the p revio u s twelve mo nths fro m t he
applicant. Moreove r, ca nd id ates may not receive or
so li c it con trib uti on s of more than $250 from any
applicant wh il e the ap plication is p end ing an d tin
th ree mon ths afte r wa rd . 17
u C •l. Comt. art. XII. S 7.
"Cal. Gov't Code§§ 89 50 1, 8 95 02; 2 Ca l. Co de of Regs.§ 18 950.3 .
"Ca l. Penal Co de~ 42·1. S,•e, e.g .. People" B.l ttin, 77 C al. Ap p. 3d 635 ( 1978).
t(, See Clnrk 1'. Citv of Uam<>>n Beach, 18 C.ll. AP1'· 1th 1152 ( 1996j.
P Cal. Gov 't Code § 81.1 08.
7
8
Plamring Comnrissio11cr's Handbook League ol Californi,\ Cities
r-· --------·-------------------1
L.~_R __ E_c_.I_P_E_F_o __ R __ A_N __ E_~F_F_E_'C_'T_I_v_E_"_P_L_A_N_N __ IN __ G_c_'o __ M_.~_t_Is_'S_'I_o_N __ ll __________________ ~~
• Focus on the Big Picture. Foc us on Lhe big pi cture
before you; avoid being distracted by personalities.,
groups, or issues that do not have anything to do
with the merits of the present agenda item.
• Meeting Procedures. Established r ules and
procedures keep meetings on track. The
chairpe rson and staff should have d efined
responsibilities. In addition, rules for testimony
should be clear and widely available at all meetings.
• Follow the Law. Keep legal requirements in mind .
When in doubt, ask legal counsel for advice. Before
approving an application, you should be able to
answer the following questions in the affirmative: Is
the pro posal consistent with the general plan? Does
it meet all applicable zoning and subdivision
requirements? Arc the environmental impacts
reduced or elim inated by the conditions of
approval, or are there overriding considerations? Is
the commission's decision su pported by findings of
fa ct based on substantial evidence in the record?
• Effect of Decisions on Family Members' Financial
Interests. A public official must disqualify him or
herself from participati ng in a d ec ision that would
reasona bly have a foreseeable material financ ial effec t
on a member of hi s or her immediate fa mily (s pouse
and depende nt c hildren ) .18
• Party or Factual Bias. A strong personal a nimo sity
towards a projec t applicant or the re ce ipt of
info rma t io n a bout a projec t may co n stitute a
disqualifying so urce of bias when a p la nning
commiss ion is sitting in a quasi-j udi cial capacity.19
This is a variation of the "ex parte communications"
doctrine, which s ugges ts that, in quasi-judicial
matters, all communica tions to you about the m e rits
(or d e merits) of the p roposed use should occur in the
course of a public hearing (see page x).
ts C.at. Gov't Code §§ 8 1029. 87103.
~~See Brenk z~'lh' Billiards~·. City C'fTormn ct', 81 CaJ. :\pp. 4t·h 1205, 1134 n,23 ('2000 }.
10 Sec Cal. Gov': Co de~ 1116.
• Stay Informed. Prior to the h earing, commissioners
should h ave re ad th e agenda packet and
supplemental r eports. It is als o a good idea to review
the portions of Lhc general plan and the zoning
ordinance that are relevant to each agenda item.
• Open Communication. Each wmmissioner shares
responsibility fo r the free flow of ideas and
disc ussion among everyon e present at a mee ting,
including applicants, staff, members of the public,
and the co mmissioners themselves. Be objective,
listen, and ask 4uestion s.
• An Efficient Pace. T he chair should recognize whe n
testimony must be d osed for deliberations.
Commissioners should h old their motions until the
discussion h as concluded. Both the chair and the
other commissioners should know whether to
continue a hearing or to make a decisi on.
• Effective Leadership. An effective chairperson
assists the tlow of ideas and helps keep the
proceedings on track.
• Dual Officeholding. State law prohibits public offi cials
from holding multiple offi ces at the sa m e t ime that
subject them to conflicti ng loyalties.20 Check with
yo ur agency counsel if yo u are worried that this
prohib it ion m ay appl y to an office you are see kin g.
In addition to these sta t e ethics requirements, cities and
countie s may have local r estrictions a nd require m ents.
WORKING WITH FELLOW
COMM ISSIONERS
G ood working relationships wit hin the planning
commission, as well a s with planning and other staff, the
city co uncil or board of superviso rs, other boards and
commissions, appli ca nts, consul tants, and the public, are
c ritical in order fo r planning fu n ct ions to b e effective
and efficient. Po s itive wo rk in g rela tionships are based on
21 .-\dapted frorn Governor 's Office ol Plann ing and Re5ca rch, The Pia nniHg
G:mm:·ssi<'tur"; Bo ok, (rev ised May 1998J; http://ceres .~.:a .gov/p lanning/pJa n co mm /.
Leugue of California Cities
mutual u nderstanding of the role of each group,
including:
• C lear expe~t ations about how eac h group will relate to
t he o ther, as defined by adopted procedures
• A co mmon set of goals, as reflected in the general plan
a nd other adopted pl a nning documen ts
• A willin gness to so lve problems by li stenin g to others,
considerin g a lte rnatives, and arr iv in g a la consensus
• An ability to communicate d irec tl y and cle urly with
others
WORKING WITH STAFF
A good working relationsh ip with staff wil l sig nifica ntly
improve yo ur effec tiveness as a planning commissioner.
A pla n n in g department staff member wi ll always be
present at commission meetings. O ther attendees may
include representatives from you r jurisdiction's
attorney's office and public works department.
Planning staff advises th e co mmiss io n o n loca l age ncy
plans, ordinances, and policies. In addition, they provide
background information and research, prepare plans
and reports, make recommendations, and answer
technical questions on deve lopment proposals u nder the
Th e Pl<11rnir1g Co mmi~sioncr·~ Role
co mmission's consid eration. Other staff re s ponsibilities
include:
• Orienting new commissioners
• No ticing meetings
• .Res ponding to requests for information in a timely
and profess ional manner
• Delivering agenda packets in time for adequate rev iew
• Highlighting ke y issues, data, a nd crite ria in s taff
reports and presentations
• Anticipating the type of information that will b e
ne eded for a decisio n
• Being access ible and keepi ng a ll co mmiss ioners
equally informed
• Reviewi ng applications for co m p leteness
• Ac ting in a fai r, ethical, and consistent m anner
Members of the planning s taff can be a tremend o u s
resource for yo u. Most will have received a t least some
trai ning in geog raphy, landsca pe design , urban and rural
plann ing, eco nomics, law, and s ta tisti cs. In addition to
their other duties, staff are res ponsible for stay ing
current on new trends, techno logies, and reg ula t ions in
the planning and development field . They ca n us e this
TIPS FO R DEVELOPING AND MAINTAINING GOOD STAFF RELATIONS
A good staff-commission relationship is built on mutual trust and respect. Here are so me ways to achieve that:
• Co me to meetings having reviewed the materials prepared by staff.
• Ask questions of staff in advance and a lert t he m to concerns you inte nd to raise during the meeting.
• lf you disagree with a staff recommendation, st.c"lte speciftc reaso ns for yo ur d ecisio n . This will help staff to
draft findings in support of your decision . Si mply statin g "l do not like the project" is not e nough.
• Clearly communicate to staff what the co mmission needs in order t o make well-info rmed d ec ision s. If
material is not b eing presented in an understa ndable way, work with s taff to m ake changes.
• Treat staff with respect.
• Uo not assume th.1t staff is wrong a nd a critic is ri ght.
• Co m pl iment staff wh en and where appropriate.
9
10
Plan11ing Cammi;sio11er's Handbook
information to assist the planning commission in
developing creative solutions to local problems.
Consultants
Local agencies face serious restrictions on staff
expansion, while the demand for public planning
continues to increase. Consultants are often used to
address temporary staffing needs, such as:
• Co mplete studies requiring special skills
• Provide additional support on an as-needed basis
• Prepare st udies and analyses required by
environmental laws
• Assist on large projects, such as a general
plan update
The commission should co nsider co n sultants as
extensions of regular staff.
WORKING WITH TIIE
GOVERNING BODY
One not so obvious ongoing rdationship to take into
account is the rdationship between the planning
commi ssio n and the governing body (city co uncil or
board of supervisors). In most cases, individual
commissioners serve at the pleasure of one or more
members o f the governing body and th erefo re should
cons ider the views of the governing body in making
their decisions.
The planning commission -governing body relationship
can become strained (at least from the co mmissio n's
perspective) if the govern ing body repeatedly overturns
planning commission decisions. ln such cases, you may
fee l that the governing body did not look at the la nd
use is s ue s as closely as the commission. One thing to
keep in mind, howeve r, is that the governing body
must also contend with political pressures that are not
always felt by the appointed commission.
Here are some ideas on how to promote a good
ongoing relationship between the planning
com missi on and the governing body:
L<·ague ol Californi<l Cilies
[3-----··----·---·-·--·······~·~--~----l
o Does What in the Project J
iew Process?
PLANNING STAFF
• Identifies re levant local reg ulations for project
applications
• \Vorks with applicants to make a project work
• Works with other departments and agencies,
such as the engineerin g department or the
regional air board, to incorporate com ments
and technical recommendations into a project
• Ensures that procedures are being followed
• Prepares a professional analysis and
recommendation
• Monitors project impleme ntation
• Holds consens us-building meetings on
con troversial projects
AGEN CY COUNSEL
• Answers legal questions
• Docs not give poli cy direction or advice
• Advises on rele vant legal con siderations, both
in terms of process (for example, notice
requirements) and substance
PLANNING COMMISSION
• Balances staff analysis, including agency goals
and policies, with co mmunity input
• Renders a decision based on findings of fa ct
when acting in a quasi-judit.:i al capacity
• Makes recommendations to t he governing
body on policy matters when acting in a
legislative capacity
• Evaluates land use as pects of projects and leaves
more technical issues for staff review and
implementation (commissioners should truf>t
staff to implement their general directions)
GOVERNING BODY
• Balances staff analysis, planning commission
decisions, and agency goals
I e.l)!UC of Californi.1 Litic'
• Make adequate ll n ding~ to in sure that th e rea sons for
~·ou r ac ti ons arc dear
• ,\sk for clarillcation of th e gover n in g body's policies
or action s if th e y arc u n clear
• Include in plan n ing co mmission minutes any
ques tion s or points of view that arc not obvious in
you r deci s ion~ and findi ngs
• Send a planni ng commi:.-!>io n rcpresl·ntative to
meetings or th l' go ve rning body to di sc uss di ffic ult
dec ision s
• Request an annual join t wor k sessio n to di sc uss
priorities, communication and othe r p ressing iss ues
• Do not rel y solel y on ~taff to co nvey you r message,
either to th e public or to the appropriate elected
officials
• Do an an nual s elf-eva luation an d fo ll ow through
with an y n eeded changes in how the commiss ion
docs b us in ess
Keep in mind that e lec ted officials must answer to th e
voters . You may find it helpful to be fami liar with the
policy perspectives of the members of the gove rning
bod y, particu larl y as they relate to land usc po li cies and
pro grams. (For example, a rc the y "s low growth " or
''p ro -growt h"?) Casting ind ividual co mm iss ion
decis io ns in wa y5 that address issues of concern to
individual members of the gove rnin g body (if not
con fo rmin g to th em ) reduces the liklihood that a
commiss ion d ec is ion wi ll be overturned on appeal.
·1 he Platmi11g C.mwri ~Sll>ll<'r ~< Ho >lr
II
This Page
Intentionally
Left Blank
Title: Plan ning Co mmissio n Poli cies and Proced ures Policy Number : 2-05
Effective Date: 1983 Pages: 11
Enabling Actions : Revised Date : 5/8/85 ; 11 /18/87 ; 9/22/93 ; 11 /16/98 ;
-----, c--·---0; 4/21 /15 ; 9/20/16
Approved.
)
I
PU POSE
i'Ml'-w--I'M--m-1'7\o nn Plannin g Commission Membe r s o ftheir ro les, res p o nsibilities, a nd
fun c ti o n c;, as w e ll a s o perating procedures for meetin gs.
SCOPE
Since 198 3 . th e Town Counci l h as ado pted Plann in g Commission Po li c ie s and Procedures. T h e
Proce dures a ddress topics in c luding the age nda fo rmat. C ommissio ner conduct a t Plannin g
Commi ss io n m eetings , absence s . evidence outside of fonnal he arin gs. tindin gs. voting , and o th e r
issu es. Perio di ca ll y. the Town C o uncil adopts rev is ion s to th e Procedures.
POLICY AND PROCEDURES
l. ORGANIZATION. OFFICERS, DUTIES
1.1 Organization .
T he Pl a nnin g Commission c ons io;t s of se ven v oting members a nd s h all b e org an i7ed as
prescribed b y Town Cod e S ection 29 .2 0 .750 and th e Tow n C ounci l. All Pl a nning
Comm issio ne rs shall be appoi nt e d by th e To wn C ounc il. C ommiss io ne rs serv e at the pkas ure o f
the Town Coun t:il a nd may b e re m o ved prior to the e nd of hi s or he r term b y a to ur-fifih s vote o f
th e Town Council.
1.2 Officers.
A C ha irp e rson (he re in a ft e r C ha ir) a nd Vice-C hairperson (h e re inafte r Vice C hair) s hall b e el ect e d
a nnuall y fr o m a mong tht: Commission's members hip at th e first meeting in January . to serve a t
the pl eas ur~ l l f the C ommission tor a term of oftice o f o n ~ y ear.
Th e C h a ir sh a ll :
a) Pres ide a t a ll m eetings o f the Commi ssion .
b) S ig n doc um ents o f th e Commission .
EXHU31T 2
Title: Planning Com mi ssion Poli cres and Procedures
Page :
12 of 11
, Policy Number I 2-os
--------------------------------------------~---------~------------
c) Determine meeting schedule and agenda items consistence with stat e law noticing
rcq uiremt:n ts.
During the absence. disability o r disqualitication of the C h air. the Vice-Chair s hall perform a ll
the duties and be s ubj ect to all the responsibilities of the Chair.
The Vice-Chair shall s ucceed th e Chair if he 0r sh e vacates the oft icc before hi s o r her tem1 1s
completed and s h a ll serve the unexpired tenn of the vacated oflice. (A new V1ce -Ch a ir s hal l be
elected at the next regular meeting.)
In the a b sence of the Chair and Vice-Chair. a n y other Com mi ssioner s hall call t he Commission
to order whereupon a C hair pro te m s h a ll be elected from the CommissiOners present to prt:side.
1.3 Duties.
The functions. powers and duties of the Plannin g Comm issio n s hall consist of all those func t i@s.
powers and duties of a Planning Commission as prov ided in Chapters 3 and 4 1>f T itk 7 .
com m e n c in g with Section 65100 of thc Califo rnia Go\emmcnt Code (P lanning and Zoning La\\')
and as the same may he hcrcatter a m end ed. The.: Planning Commission shal l perform such other
duties a nd funct ions as may be designated in Town Code and b y the Town Council.
1.4 Support.
The Secretary of the Plannin g Comm ission is the Comm uni ty Development Director or designee.
The Chair s hall ~d the Agenda in consult at ion with the Secretary.
2. LEGAL AND ET HIC AL STANDARDS
Planning Co mmi ssio ners must ser ve as a model of leadership and ci vi lity to th e communi ty a nd
treat all m embers o f the publi c. each o ther. a nd the issues hdorc them with respcd tl > en sure
open a nd cftt!ct ive government.
To en::.ure t he highc~t s ta ndard s of respect and intcgr ity during public nll.:et i ng~. Plannmg
Commissioner s s hall :
I. lJ::.c fonna l titl e~. The Commi ss io ncrf, s hall refer to one a nothct formally Ju ring
Commission meetings s uc h a s C hair, Vi ce Chair. Commi ss ioner. ur Mr.. Mrs .. or Ms ..
tollowed by the individual's last n ame.
) Practice civili t y an d decorum in d iscussion s and debate. Difficult qm:stions . tough
c hallenges to a particular p oint of view. a nd cri ti cism of ideas :1nd infnnnntion an:
Title: Planning Commission Policies and Procedures
Page:
3 of 11
Policy Number :
2-05
legitimate elements of free democracy in action. This does not allow, however,
Commissioners to make abusive , slanderous, and personal comments, and/or physical
actions that could be construed as threatening. During public discussions, Commissioners
shall be respectful of others and diverse opinions, practice objectivity, and allow for the
debate of issues.
3. Honor the role of the Chair in maintaining order and equity, and respect the Chair's
efforts to focus discussion on current agenda items. Objections to the Chair's actions
should be voiced politely and with reason.
4. Demonstrate effective problem-solving approaches. Commissioners are role models for
residents , business people, and other stakeholders involved in public debate.
5 . Base decisions on the -.written evidence, arguments or testimony and deci s ions should be
made objectively and based upon the merits and substance of the matter at hand, not
through established coalitions or well-defined voting blocks . Judgment of decisions
shou ld be reserved until all applicable information has been presented .
6 . Be prepared and knowledgeable. To effectively lead and inform the public,
Commissioners shall be prepared and informed about issues on the agenda.
7. Be respectful of other people 's time . Commissioners should stay focused , li sten
attentively, and act efficiently during public meetings. During public testimony,
Commissioners should refrain from engaging the speaker in dialogue; however, for
purposes of clarification, Commissioners may ask the speaker questions. Commission
comment and discussion should commence upon the conclusion of all public testimony.
3. MEETINGS, STUDY SESSIONS, AGENDAS, AND STAFF REPORTS
3.1 Quorum and Attendance at Meetings.
A quorum to conduct business shall consist of a majority of the total number of filled seats
consistent with Town Council Resolution 2014-041. For example, if all seven Commissioners
are seated, then a quorum consists of a minimum total of four members of the Commission. A
quorum is not required for workshops.
Reque sts by Commissioners to attend a Commission meeting via telephonic appearance are
actively discouraged. Telephonic attendanc e shall only be permitted in the event of
e xtraordinary events such as a medical , family , or similar emergency requiring a Commissioner's
absence or in the event the Commissioner is o ut of the area on official Town business . In
addition, at least a quorum of the Commission must participate from a location within the Town.
Title: Planning Commission Policies and Procedures
3 .2 Public Meetings.
Page:
4 ofll
Policy Number :
2-05
All meetings s hall be held in full compliance with the provisions of state law, ordinances of the
Town, and these Policies and Procedures.
3.3 Regular Meetings.
Regular meetings of the Commission shall be held on the second and fourth Wednesdays of each
month in Town Council Chambers at 110 E. Main Street, Los Gatos, unless otherwi se
determined by the Commission. All regular meetings of the Commission will be ca lled to order
at 7:00p.m., unless advertised otherwise, canceled, or rescheduled.
The Commission with the consent of the majority of the Commission, adjourn its meetings on or
before 11 :30 p .m. with any unfinished busi ness being continued to the next regular, adjo urned , or
special meeting, unless the Commission votes to extend the meeting. At approximate ly 11 : 15
p.m ., the Chairperson will call for review of any remaining agenda items to consider whether
they will likely be completed by 11:30 p.m ., or whether continuances s hould be considered. The
Secretary of the Planning Commission, or designee, will post notice of any continued hea ring or
other unfinished business, as required b y law.
3.4 Special Meetings.
A special meeting may be called a t any time b y the Chairperson of the Commission, or by a
m ajority of it s membership o n it s own motion, or at the direction of the Town Coun cil. Notice
sha ll be sent in compliance with the Ralph M . Brown Act, Government Code section 54950, et
seq. ("Brown Act") and the Los Gatos Town Code.
3.5 Adjourned Meetings.
The Commi ss ion may adjourn any regular or special meeting to a time and place specified
pursuant to the proce dures set forth in the Brown Act.
3.6 Workshops/Study Sessions.
The Commission may hold a workshop as part of a regular or special meeting. When a matter is
set for a works hop , publi c testimony on each item will generally be limited to three (3) minutes
per person , at the di scretion of the C hair. A workshop shall be for di scussion only and the
Co mmi ssion will take n o action o n the workshop item.
Title: Planning Commission Policies and Procedures
3. 7 Agendas.
Page:
5 ofll
Policy Number:
2-05
At least seventy-two (72) hours before a regular meeting, copies of the Commission's agenda
shall be posted in a location that is available for viewing by the public and made available on the
Town website and at the Community Development Department. In accordance with the Brown
Act, the Commission may not take action on any item that did not appear on the posted agenda,
unless an exception is made as permitted under Government Code section 54954.2. The Chair
may rearrange the order of presentation of items appearing on the agenda as he or she may deem
necessary or desirable for the conduct of the meeting. No person shall be entitled to rely upon the
order in which public hearing items appear on the posted agenda, and any public hearing on any
agenda may commence immediately upon the time the meeting is called to order.
3.8 Staff Reports .
Staff Reports shall be made public whenever they are distributed to the Commission, except in
the case of attorney/client privilege memoranda. Staff reports will usually be prepared with
recommendations and shall include the basis for these recommendations, and included in the
hearing record on any application .
If, in reviewing a staff report, a Commissioner sees omissions, has questions, or is looking for
specific information, it is advisable that the Commissioner contact the Community Development
Director or designee prior to the hearing.
3.9 Order of Meetings.
The Order of Business shall as follows subject to the Chairperson's final approval:
I. Roll Call
2. Pledge of Allegiance
3. Written Communications
4. Requested Continuances
5. Sub-Committee Reports
6. Verbal Communications
7. Consent Calendar
8. Continued Public Hearings
9. New Public Hearings
I 0. Continued Other Business
Il. New Other Business
12. Adjournment
Title: Planning Commission Policies and Procedures
3.10 Chair's Rules of Order.
Page:
6 of 11
Policy Number:
2-05
After issuing a warning, the Chair may order from the meeting location any person(s) who
commit the following acts with respect to a regular or special meeting of the Commission:
l. Disorderly, contemptuous or insolent behavior toward the Commission, or any member
thereof, which interrupts the due and orderly course of said meeting.
2. A breach of the peace, boisterous conduct or violent disturbance which interrupts the
due and orderly course of said meeting.
After a warning by the Chair, if more than one individual at a given meeting continues to engage
in disruptive or unruly behavior to the extent that it is preventing Commissioners from
adequately participating in the meeting, the Chair may order that the meeting location be cleared
of all members of the public (with the exception of members of the press who are not
participating in the disruption), and/or (c) adjournment of the meeting to another time or place
so that the meeting may continue uninterrupted .
Any Commissioner may move to require the Chair at the meeting to enforce the rules , and the
affirmative vote of a majority of the Commissioners present shall require him or her to so act.
4. PRESENTATION OF AGENDA ITEMS
4.1 Minutes and Recording.
Commission meetings are recorded and the recording is permanently preserved by the Town.
The recording of the meeting is used by the Secretary of the Commission to prepare minutes of
the hearing which must be approved by the Commission. The minutes of the Commission's
proceedings shall show the vote of each Commissioner, including if they were absent or failed to
vote on a matter considered.
4.2 Order of Presentation.
The order of the presentation shall be as follows:
1. The Chair shall announce the subject of the agenda item.
2 . Presentation of staff report , including any environmental analysis or recommendation.
3. Questions of staff by Commissioners.
4. Public hearing opened.
5. Presentation of the applicant(s) or appellant(s).
6. Public comment.
Title : Planning Commission Policies and Procedures
Page:
7 of 11
7. Rebuttal comments by the applicant(s) or appellant(s).
8. Public hearing clo sed.
9. Commission di scuss ion and act ion .
4.3 Public Participation.
Policy Number :
2-05
The Commi ssion welcomes participation and comment on any matter within its subject matter
juri sdiction. It is th e Commission 's intent to create and maintain an environment w here people
feel comfortabl e participating in the public process and an atmosphere of respect for all who
participate in the Town's public meetings. To maintain civility and respect and to allow the
Commi ssion to complete its work in a timely manner, the Commissio n requests that all attend ees
and participants show respect for every speaker regardless of his or her viewpoint, and to r efrain
from conduct that may inhibit others from addressing the Commission. Di sre spectful conduct,
s uch as hissing , booing, whistling, cheering, chanting, and judgmental hand gestures, are all
inappropriate. The Commission also di scourages profane remarks or personal attacks or in s ults
to any member of the Commission, s taff, other attendees or speakers, or the general public.
Accordingly, the Commission requests the cooperation of all in maintaining a meeting
e nvironment where p erso ns can fe e l comfortable participating in the public process and
e xpressing their view s and opinion s, and an atmosphere of respect for a ll.
4.4 Rules of Evidence.
Hearings and meetings before th e Commiss ion need not be conducted according to formal rules
of evidence. Any re levant evidence may be considered if it is the sort of evidence upon which
reasona ble persons are accustomed to rely o n in the conduct of serious affairs.
4.5 Written Evidence.
Written evidence that members of the public wish to submit to the Commission in advance of a
Commi ss io n agenda item should be submitted b y 11 :00 a.m. on th e Wednesday one week prior
to the C ommission meeting in order for s uch evidence to b e provided to the Commission with its
agenda packet in advance of the meeting. Any written evidence submitted after thi s d ay and tim e
bu t prior to 11 :00 a.m . on the day of the hearing will be distributed to the Commissio n in an
Addendum or Desk Item.
Written or pictorial evidence di stributed to the Commi ss ion at the meeting may no t be effective,
as the Commi ss ion may not have en ou gh time to absorb its content. Although la te
Title: Planning Commission Policies and Procedures
Page :
8 of 11
Pol icy Number:
2-05
correspondence is highly discouraged for this reason, any participant may submit written and
pictorial evidence to the Commission during the public hearing on an item.
4 .6 Oral Evidence, Time Limits, and Number of Speakers.
A s peaker's card to speak on an item should be submitted to the Secretary of the Commiss ion or
designee.
The Chair's instructions to the audience will generally follow these guidelines:
1. Any person desiring to speak must first be recognized by the Chair.
2. All participants mu st speak from the podium.
3. All speakers are requested to fir st state their full name and full address, and to speak into
the microphone as all meetings are recorded. To en sure correct spelling of names and
addresses, all speakers are encouraged to submit a speaker's card to the Secretary of the
Commission or designee.
4. All comments shall be directed to the Commission as a body, and not to any particular
Commissioner, s taff person or audience. No person, other than Commiss ioners, staff,
and the person having the floor shall be permitted to enter into the discussion.
Commissioners shall on ly ask questions of the speakers thro ugh the Chair. Each applicant
and appellant shall be limited to a 1 0-minute presentati on at the start of the public hearing
and a 5-minute rebuttal after all other speakers have been heard. All members of the
applicant's or appellant's team shall be heard as a group within the se time limit s.
Questions by the members of the Commission do not count agains t the time. Members of
the public who wish to speak on any item s will be limited to up to 3 minutes each . No
person shall be allowed to speak a second time per item. In order to assure the
opportunity for all tho se desiring to speak before the Commission, there is no yielding of
time to another s peaker. The Chair, at his or her discretion, may allocate more or les s
time for speakers due to the complexity of the issues and/or due to a large number of
speakers on a particular item. Except for the applicant or appell ant, all speakers shall be
limited to the same amount of time to speak.
4.7 Evidence Received Outside a Hearing.
Applications before the Planning Commission involve quasi-judicial matters, legi s lative matters
and matters that have attributes of each . On quasi -judicial matters California law requires
deci sions to be based on findings , and findings to be based on evidence presented at the hearing.
Accordingly, the actual decision ofthe Commission on a quasi-judi cial matter must be supported
by evidence presented at the hearing, i.e. the staff report, testimony given during the hearing an d
Title: Planning Commission Policies and Procedures
Page:
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Policy Number:
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comments from other Commissioners. A Commissioner may not state or predetermine his or her
deci s ions on an application prior to the hearing.
In order to avoid the appearance ofbias or impropriety, individual Commissioners are prohibited
from discussing, outside of the public hearing process, the substance of any project with project
proponents, opponents and member of the public. This prohibition shall apply to all projects,
whether conceptual or proposed, that can be considered by the Commission in reviewing an
application, on appeal or on remand . Study sessions may be used as a means of facilitating
informal communication. Individual Commissioners who have engaged in prohibited discussions
shall recuse themselves from consideration ofthe project.
Incidental contacts that do not address the substance of any project are not prohibited. Incidental
contacts are those that are not reasonably understood to influence a Commissioner's decision,
and include speaking with an interested party to obtain approval to enter a property and to obtain
information intended to orient the Commissioner about the physical aspects of the property or a
project.
5. MOTIONS
Action upon an order, resolution, ordinance, or any other action of the Commission may be
proposed by any Commissioner by a motion. Before a motion can be considered or debated it
must be seconded, at which time it shall be on the floor and must be considered. If not seconded ,
the motion dies for lack of a second and shall be so declared by the Chair. Substitute motions and
other parliamentary procedures shall follow Robert 's Rules of Order.
Pursuant to Planning Commission Resolution No . 78 -4 , adopted May 10, 1978, the Planning
Commission will not accept requests for continuances from applicants after 12:00 noon of the
Friday preceding any Commission meeting, provided, however, that the Commission retains the
right to make excepti ons when it finds that a genuine emergency exists which was not known to
the applicant.
A motion to adopt or approve staff recommendations or simply to approve the action under
consideration shall , unless otherwise particularly specified be deemed to include adoption of all
proposed findings and execution of all acti ons recommended in both the written staff report on
file on the matter, any verbal staff report , and other evidence presented during the hearing.
Title: Planning Commission Policies and Procedures
6. VOTING AND ABSENTEES
·Page:
10 of 11
Policy Number :
2-05
Voting of not less than three votes sh a ll be required to carry a motion, unless a larger number of
votes is required by applicable ordinance or other law.
If a Commissioner is not eligible to participate in the consideration of an item due to a conflict of
interest, the Commissioner shall be disqualified and shall recuse him or h erself from the voting,
in which case the Commissioner cannot be included in the quorum. Prior to consideration of the
matter, the conflicted Commissioner shall recuse on the record , stating the basis for the recusal,
and shall then leave the room, un less legally entitled to remain under applicable law.
If a majority of the Commission shall be disqualified to vote on a matter by reason of actual or
apparent conflict of interest, the Co mmissio n shall select by lot , or other means of random
se lection, that number of disqualified Commiss ioners which , when added to the Commi ssioners
eligible to vote, shall constitute a quorum.
A Commissioner who expects to be absent should notify the Chair and the Community
Deve lopm e nt Department prior to the meeting.
Pursuant to R esolution 2011-012 , any Commissioner who is absent from eight (8) regular
meetings held in a twelve ( 12) month period, shall , as a result, surrender hi s or her office on the
Planning Commission and the office shall be considered vacant.
A Co mmi ssioner who is absent from a ny portion of a hearing conducted by the Commi ssio n may
vote o n the matter at the time it is acted up o n, provided that he or she viewed th e v id eo recording
of the entire portion of the hearing from which he or she was absent, an d he or she has examined
all o f the s taff report s and minutes presented during the portion of the hearing from which he or
she was absent; and he or she states for the record before voting that the Commi ssio ner deems
him se lf or herself to be as familiar with the record and with the evidence presented at the hearin g
as he or she would have been had he or she personally attended the entire hearing.
7. LEGAL REQUIREMENTS
The Planning Commission operates under a series of laws that regulate its operations as well as
the conduct of its member s. The Town Attorney serves as the Town's lega l officer and is
available to advi se the Commiss ion on these matters.
The Ra lph M. Brown Act requires that meetings of the Planning Commission be open and
public. "Meeti ngs" occur whenever four or more members of the Co mmission hear, discuss , or
Title: Planning Commission Policies and Procedures
Page:
11 of 11
Policy Number:
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deliberate on any matter that is relevant to the Town. This includes discussions that occur face to
face, serially, through third parties, or through written , telephonic , or e-mail communications.
The Political Reform Act controls conflicts of interests through disclosure of financial interests
and prohibition in participating in decision making. Commissioners are prohibited from making,
participating in or in any way attempting to use their official position to influence a
governmental decision in which they know or have reason to know they have a financial interest.
Financial interests can arise out of property ownership, business investment, leadership in a
business entity, and receipt of money or gifts.
8. CONSTRUCTION AND EFFECT
These Policies and Procedures shall be construed and applied so as to ensure a full and fair
hearing of relevant evidence which is offered on a land use matter and to facilitate an orderly
analysis of evidence and issues by the Commission. Failure to comply with the strict provisions
of these Policies and Procedures shall not necessarily invalidate any action taken by the
Commission.
9. RULES OF ORDER.
Except as otherwise provided in these Policies and Procedures, Roberts Rules of Order shall be
used as a guide for the conduct of the meetings of the Planning Commission. No omission to
conform to said rules of order shall in any instance be deemed to invalidate any action taken by
the Commission.
10. AMENDMENT.
These Poli cies and Procedures may only be amended by the Town Co uncil.
APPROVED AS TO FORM :
Robert Schult z, Town Attorney
This Page
Intentionally
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Figure 7-5
Developing a Reasonable
Range of Alternatives
170 CEQA Deskbook
Process" (November 2001) is availa bl e at www.dtsc.ca.gov/schools/upload/
smp _schools_FS_AB972.pdf
Alternatives
In General
A draft EIR must describe a reasonable range of alte rna tives to the project or
project location that could fe as ibly attain most of the basic p roject objectives
and would avo id or substantially lessen any of t he significant enviro nmental
impacts of the proposed project. Additionally, the no-pro ject alternative (page
17 6) must also be ana lyzed in a draft EIR, even though it may not share any o f
the project's objective s or offer a subst antial lessening of the project's s ignifi-
cant environmental impacts (Guidelines §§ 15126.6(a)).
There is no ironclad rule govern ing the nature or scope of the alterna-
tives to be discu ssed other than the "rule of re ason." The discuss ion of
a l ternatives mus t focus on those a lternatives that are capable of avoiding o r
su bstant ially lessen ing the s ignificant envir onmental effects of the proposed
project, even if the alternative co uld impede to some degree the attain ment of
all the project objectives o r would be more costly (Guidelines § 15126.6(b)).
The EIR must briefly expla in why any other alternatives considered for
inclusio n in the EIR were rejected (Guidelines § 15126.6(c)).
The treatment of a lternatives in an EIR should be based on the following
m ethodology:
• Describe the project objectives.
• Conduct a preliminary assessment of the project's potential significant
environmental effects.
• Develop sc reen ing cri teria for feasibility of alternatives.
• Select a reasonable range of alternatives that:
l EXHI B IT 3
CA Supreme Court Rules on CEQA Requirements for EIR Reasonable Range of Alternatives: In re: Bay-
Delta Programmatic Environmental Impact Report Coordinated Proceedings (2008) 43 Cal.4th 1143.
In this case, consolidated from a number of CEQA challenges to the
program EIS/EIR that was certified for the CaiFed project in 2000 ,
the CA Supreme Court reviewed the adeq uacy of alternatives con-
sidered in the long-range , joint federal and state strategy for
balancing water transfer with env ironmental and habitat issues within
the Sacramento-San Joaquin River Delta .
The Court of Appeal had held that CALFED's Bay Delta Program-
matic EIR was inadequate because it (1) eliminated the alternative of
reducing water exports from the Delta as a means to contro l growth
(2) did not fully describe sources of water and the impacts of taking
that water for use in the program and (3) inadequately described the
proposed "Environmental Water Account ." The Supreme Court
reversed on all of these points and upheld the adequacy of the
CALFED Programmatic EIR.
CALF ED identified four fundamental objectives of the program (para-
phrased here): 1) improve ecosystem quality and functions ; 2) reduce
the mismatch between Bay-Delta water supplies and the beneficial
uses dependent on the Bay-Delta system ; 3} provide good water qual-
ity for all beneficial uses ; and 4) reduce the vulnerability of Delta
functions to catastrophic levee failures. Alternatives must meet most or
all of the project objectives and be feasible . An EIR need not examine
every possible alternative. Analysis is gu ided by the "rule of reason "
and whether the alternative feasibly meets project objectives . This deci-
sion adds a further consideration : Does the alternative achieve the
project's "u nderlying fundamental purpose ?" Here , CALFED had
defined the fundamental purpose of this program "to develop and
implement a long-term comprehensive plan that will restore ecological
health and improve water management for beneficial uses of the Bay-
Delta system ." Further, the program "was established to reduce the
conflicts and provide a solution that competing interests could support."
Based on years of conflicts over solutions to the Bay-Delta 's prob-
lems, CALFED determined that its four primary objectives had to be
• Meet most or all of the project objectives
addressed concurrently in an integrated manner if the project was to be
successful and therefore feasible . A reduced export alternative would
not meet the water supply reliability objective . Opponents argued that
the reduced water supply alternative could meet reliability objectives for
the Delta and points north . The Court held that the underlying purpose
of CALFED project is to encompass all beneficial uses of Delta water
and "cannot be achieved by an alternative that benefits some groups of
water users at the expense of the _ others." Therefore , CAL FED prop-
erly exercised its discretion when it declined to further study the
reduced export alternative in the final PEIS/EIR.
The Court further held that although a lead agency cannot give a
project's purpose an artificially narrow definition in order to limit the
available alternatives , it "may structure its analysis around a reason-
able definition of underlying purpose and need not study alternatives
that cannot achieve that basic goal." Here, the determination that an
integrated solution was necessary and that the water supply objec-
tive could not be met by the reduced exports alternative was
supported by substantial evidence and supported by the rule of rea-
son . CALFED adequately made the case that an integrated
approach , where all the objectives would need to be met in order to
sol ve the problems of the Bay-Delta system, made a reduced export
alternative infeasible .
The Court found that the Court of Appeal had failed to sufficiently
distinguish between the Bay-Delta 's baseline environmental setting
and the impacts caused by the proposed program. As a result , the
Court of Appeal 's request for a reduced export alternative attempted to
solve the Bay-Delta 's existing environmental problems (as detailed in
the setting of the PEIS/EIR), but didn 't address the impacts of the
CALFED program . Those problems "would continue to exist even if
there were no CALFED program" and therefore were not impacts that
would determine the required range of alternatives.
• Substantially avoid or le ssen the proposed project's signifi cant envi-
ro nme ntal effects
• Are feasible based o n specific economic, social, legal, or technical
considerations
• Explain why other alternatives have been reje cted from eva luation.
• Provid e meaningful eva luation and ana lys is of the environmental
effects of the reasonable range of alternatives and the no-project alter-
native in comparison with environmental effects of the proposed
project.
• Identify the environmentally superior alternative.
Chapter 7 EIR Preparation: Contents 171
The EIR's range of alternatives must
include those that would avoid or
substantially lessen one or more of
the projecfs significant environmental
impacts.
172 CEQA Deskbook
Selection of Range of Alternatives
Rule of Reason. The range of alternatives required in an EIR is governed
by a "rule of reason" that requires an EIR to set forth only those alternatives
necessary to permit a reasoned choice. An EIR need not consider every con-
ceivable alternative to a project.
Rather, i:he alternatives must be limited to ones that meet most of the
project objectives, are ostensibly feasible, and would avoid or substantially
lessen at least one of the significant environmental effects of the project. Of
those alternatives, the EIR need only examine in detail the ones that the lead
agency determines could feasibly attain most of the basic objectives of the pro-
ject, although the lead agency must identify a fundamental objective that all
alternatives must meet. The range of reasonable alternatives must be selected
and discussed in a manner to foster meaningful public participation and
informed decisionmaking (Guidelines § 15126.6(£)). The process of screening
alternatives is illustrated in Figure 7-3 (page 167) and Figure 7-4 (page 168).
The EIR must briefly describe the rationale for selection and rejection of
alternatives and the information the lead agency relied on in making the selec-
tion. It should also identify any alternatives that were considered by the lead
agency but were rejected as infeasible during the seeping process and briefly
explain the reasons for their exclusion. Additional information explaining the
choice of alternatives should be included in the administrative record (but not
necessarily in the EIR itself). Alternatives may be eliminated from detailed con-
sideration in the EIR if they fail to meet most of the basic project objectives,
are infeasible, or do not avoid any significant environmental effects (Guidelines
§ 15126.6(c)). The EIR is not required to undertake a detailed or final analysis
of the feasibility of an alternative before the alternative can be included in the
EIR. That the alternative is potentially feasible is sufficient to include it in the
EIR. Final feasibility will be determined when the lead agency decisionmakers
adopt the project's CEQA findings. See, for example, Sierra Club v. County of
Napa (2004) 121 Cal. App. 4th 1490; San Franciscans Upholding the Downtown
Plan v. City and County of San Francisco (2002) 102 Cal. App. 4th 656.
Importance of a Clear Statement of Project Objectives. In developing a
range of alternatives, a lead agency should focus on those alternatives that meet
most or all of the project objectives (Guidelines§ 15126.6(a)). Thus, clearly writ-
ten project objectives will help in the development of a reasonable range of alter-
natives. The statement of objectives should include the underlying,
fundamental, purpose of the project (Guidelines§ 15124(b)).
When defining the project objectives, a distinction should be made
between the action (the project) and the goal of the action (the objective). If the
term "objective" is viewed in this manner, even a private project (e.g., a housing
development) can be described as having a public objective (e .g.,providing
housing for the community). A lead agency may narrow the range of alterna-
tives to be evaluated by defining a relatively narrow objective. For example, an
EIR for a bay-oriented aquarium need n o t evaluate alternatives that do not
include siting the project near the bay, which was one of the stated objectives
of the project. Although th e lead agency shou ld
not describ e the objective so narro wly as to pre-
clude appropriate alternatives, on e co urt has found
an EIR that contained only o ne a lternative (othe r
than the n o-projec t alternative) to be adequate
because of th e ve r y expli c it and narrow proj ect
objective (Marin Municipal Water District v. K.G.
Land Corporation (1991) 235 Cal. App. 3d 1652). On
the other hand, if the project has multiple objec-
tives, eve ry a lte rnative need n ot satisfy every
objective. It is s ufficient if each alternative meets
most of the project's objectives (City of Carmel-by-
the-Sea v. United States Department of Transportat ion
(9th Cir. 1997) 123 Fed. 3d 114 2).
Feasibility. No single factor establishes a fixed
limit on the scope of rea sonable alternatives. In
determining whether alternatives a re fea sible, lead
agencies are guided by the general definition of fea-
sibility fou nd in CEQA: "capable of being accom-
plished in a successful manner within a reasonable
period of time, taking into account economic , envi-
ronmental, legal, social, and techno logical factors"
(Guidelines § 15364). In addition, the lead agency
may co n s id er site suitability, econ o mic v iability,
availability o f infrastru cture, general p lan consis-
tency, o the r regula tory limita ti o n s, jurisd ictio nal
boundaries, and proponent's co ntro l over alterna-
tive sites in d etermining the range of alt ernatives to
be eva luated in an EIR (Guideli nes § 15126.6(f)).
All of the a lte rnatives selected for evaluati on in the
EIR (excep t the no-project alternative) mu st b e
potentially feas ib le. The final fe as ibility will b e
determined when EIR findings are made after the
project is approved (Sierra Club v. Co unty of Napa
(2004) 121 Cal. App. 4th 1490; San Franciscans
Upholding the D ow n to wn Plan v. Ci ty and County of
San Francis co (2002) 102 Cal. App. 4th 656).
Alternative Locations. A lternative locations
need n ot be evaluated in eve ry case. A key ques tio n
in determining whether to evaluate alternative loca-
tions is whether any of the signifi ca nt environmen -
tal effects of the project would be avoided or
substantia lly l esse n ed by putting the project in
another location. Only lo cations that would avoid
or subst antially lessen any significa nt effects n eed be
CA Supreme Court Rules on a Lead Agency's
Responsibility to Mitigate: City of Marina eta/. v.
Board of Trustees of the California State University
(2006) 39 Cal. 4th 341
The City of Marina and the Fort Ord Reuse Authority (FORA) challenged the
CEQA findings and statement of overriding considerations made by Califor-
nia State University Monterey Bay (CSU) for its Master Plan EIR. The EIR
disclosed that the planned campus expansion to accommodate 25 ,000 stu-
dents on a portion of the former Fort Ord would have a number of significant
effects. In its CEQA findings , CSU concluded that improvements to roads
and fire protection were the sole responsibility of FORA (although CSU is
contributing for water , drainage , and wastewater costs); CSU could not
legally contribute its share to off-site faci lities that would mitigate the traffic
and fire safety impacts of CSU ; and the planned expansion offers overriding
benefits . CSU cited the restrictions established under Government Code
Section 54999 et seq. (the "San Marcos legislation "), which limits school
payments to local agencies for public utilities services . In its opposing argu-
ments, FORA asserted that CEQA required CSU to mitigate the impacts of
its project and to contribute its fair share of the cost of mitigating cumulative
effects.
The Supreme Court agreed with FORA. CEQA obligates CSU to miti-
gate the impacts of its project (including off-site impacts ) unless it is
infeasible to do so . The Court found that the "plain language of the Cali-
fornia Constitution does not support the Trustee 's position that voluntary
mitigation payments are impe rmissible .' The Tru stees incorrectly inter-
preted th e decision in San Marcos Water District v. San Marcos Unified
School District (1986) 42 Ca l. 3d 154 and the subsequent San Marcos
legislation. That decision addressed only compulsory charges imposed by
one public entity on another. Here, the situation involves the discretionary
payment made by a public agency that voluntarily chooses that method of
discharging its CEQA duty to mitigate a project 's environmental effects .
The question then be comes whether the method of mitigation is feasible .
The Court found that nothing in San Marcos "ca n fairly be read as
addressing, much less narrowing, a public agency's obligations under
CEQA.' It therefore , does not affect the feasibility of voluntarily paying for
off-site improvements . Paying to mitigate CSU 's environmental effects is
not an unlawful gift of public funds .
As part of the plann ing for Fort Ord 's reuse, FORA had identified
approximately $249 .2 mill ion in infrastructure improvements that will be
needed over the life of the Reuse Plan. FORA assumed that CSU would
pay its fa ir share of these costs, but did not establish a tax , fee , or charge
on CSU . CSU attempted to argue that the mitigation is infeasible because
CSU cannot guarantee that FORA will actually implement the infrastruc-
ture improvements identified in the Reuse Plan .
The Court found no reason to doubt that FORA would meet its obliga-
tions . FORA has identifie d infrastructure needs and has a variety of
methods by which it can finance those improvements . In addition , pay-
ment of fees to satisfy a cumulative environmental impact is authorized
under CEOA: FORA is not solely responsible for paying for the infrastruc-
ture improvements . In fact , its cooperation provides CSU with the
op portunity to pay their fair share of the mitigation .
Because the Court found that mitigation is feasib le, it invalidated CSU's
state ment of overriding considera tions. The Court also vacated the find-
ings certifying the EIR.
Chapter 7 EIR Preparation : Contents 17 3
For Each Significant
Impact, the Lead Agency
Must ...
• Discuss whether the measure
avoids or substantially reduces
the significant environmental
effect
• Distinguish measures proposed
by project proponents
• Identify responsibility of imple-
mentation for each measure
• Discuss the basis for selecting a
particular measure (when several
measures are available)
• Discuss significant impacts
associated with implementation
of each mitigation measure
• Consider special limits for
archaeological resources , school
facilities, housing units, and pub-
lic water systems
Mitigation Is Defined as:
• Avoiding the impact
• Minimizing the impact
• Rectifying the impace
• Reducing or eliminating the
impact over time
• Compensating for the impact
17 4 CEQA Deskbook
evaluated in the EIR. If the lead agency determines that no feasible alternative
locations exist, it must disclose the reasons for this conclusion in the EIR. When
alternative locations are evaluated in an EIR, to the extent possible, they should
rely on previous documents (e.g., plan, policy, or program level EIRs) that have
already analyzed a range of reasonable alternative locations. Guidelines
§ 15126.6(f). .
Relationship to Comprehensive Planning. Alternative locations for projects
are best evaluated in program or master EIRs prepared for plans, programs, or poli-
cies. A project-level EIR should not ordinarily be an occasion for the reconsidera-
tion or overhaul of fundamental land use policy. However, the fact that an
alternative site may require a legislative change (e.g., general plan amendment or
rezoning) does not necessarily exclude it from consideration in an EIR.
Adopted regional and local plans may be relied on when the feasibility of
alternative sites is being determined and may result in eliminated of those sites
from detailed discussion in an EIR. At the same time, if they have been identi-
fied in adopted plans, feasible alternative sites may be included in an EIR. The
inconsistency of an alternative site with an adopted plan may be a factor in its
being determined to be infeasible.( Guidelines§ 15126.6(f)(2)).
Rationale for Rejecting Alternatives. The lead agency may, as part of the scop-
ing process, make an initial determination as to which alternatives are potentially
feasible and merit in-depth consideration-and which do not. Although an EIR
should generally set forth the alternatives that the lead agency considered and
rejected as infeasible during the scoping process, and the reasons for their rejection,
such explanations may be found elsewhere in the administrative record. Thus, the
entire administrative record, and not merely the EIR, may be studied to assess the
degree of discussion any particular alternative deserves, based on its feasibility and
the stage in the decision-making process at which it is brought to the attention of
the lead agency. Alternatives brought to the lead agency's attention after the public
review period must also be considered, but the lead agency may address these alter-
natives by means of administrative findings, rather than in a supplemental EIR
(Citizens of Goleta Valley v. Board of Supervisors (1990) 52 Cal. App. 3d 553).
Alternatives that are remote or speculative, or the effects of which cannot be
reasonably predicted, need not be considered. However, alternatives may not be
rejected merely because they are beyond an agency's authority, would require new
implementing legislation, or would be too costly (Guidelines§ 15126(f)(2)).
An EIR must analyze alternatives even if mitigation measures can reduce the
impacts of the proposed project to less-than-significant levels. If it concludes that
no feasible alternatives exist, an EIR must present the reasons why alternatives
were rejected in sufficient detail to enable meaningful public review. The lead
agency's responsibility to provide an adequate analysis of alternatives does not
depend on project opponents first showing that feasible alternatives exist.
Ultimately, when the lead agency prepares EIR findings at the time of pro-
ject approval, they must determine whether each of the alternatives analyzed in
the EIR is feasible (Guidelines § 15091). The lead agency is not required to
determine the ultimate feasibility of the alternatives until that time, and the
Details of Mitigation Plans May Be Deferred in an EIR
The issue of "deferred mitigation" is a topic of considerable uncertainty
to many CEQA practitioners. The fundamental questions are : How spe-
cific does mitigation have to be in a CEQA document? What details , if
any, can be deferred to the future?
To understand the concept of deferred mitigation , one must first
unde rstand how CEQA defines "mitigation ." According to the CEQA
Guidelines. "mitigation" includ es any of the following :
• Avoiding the impact altogether by not taking an action or part of an action
• Minimizing the impact by limiting the degree or magnitude of the action
• Rectifying the impact by repa iring, rehabilitating , or restoring the affected envi-
ronment
• Reducing or eliminating the impact over time by preservation or maintenance
actions
• Compensating for the impact by providing replacement or substitute
resources or environments
While these terms are called a definition, they are actually concep-
tual categories representing a broad range of potent ial solutions to
environmental problems. The common denominator in all of these defi-
nitional concepts is that a mitigation measure is supposed to actually
solve an identified env ironmental problem by keeping or bringing
impacts below the level of significance . Despite the wide latitude pro-
vided by the Guideline categories, some agencies do not take mitiga-
tion seriously and develop measures that do not actually solve
problems . One of the mos t common mistakes agencies make is to
'defe r" mitigation to the future, rather than identify it in the EIR or miti-
gated negative declaration, as CEQA requ ires .
In practice, deferred mitigation ta kes severa l forms . First, some
agencies , in the name of mitigation, defer essential environmental stud-
ies to the future rather than including them conducting them during
preparation of an EIR or mitigated declaration. A second form of deferra l
is when the environmental document only describes mitigation measure
in a very general, conceptual fashion, but the details are defen:ed to the
future. A third type of deferral is when the agency identifies a 'menu· of
possible mitigation measures but fails to describe them in sufficient
detail to ensure that the selection of one or more of the measures will
reduce the impact. Over the years, the courts have been presented with
the issue of deferred mitigation numerous times to the point where pat-
terns of appropriate and inappropriate CEQA behavior have emerged .
The most important principle in this area of CEQA practice is that
deferral is impermissible when the CEQA document is a mitigated neg-
alive declaration. When an agency concludes that a proposed project
will have no sign ificant impacts , it must be virtually certain of that con-
clus ion. Such certainty is not possible if relevant information about the
affected environment and the impacts to it are deferred to the future .
Thus , the only legitimate use of deferred mttigation would be in the con-
text of an EIR. However, even when an EIR is prepared, deferred miti-
gation should be the exception not the rule . Deferral should only be
considered when there is some legitimate reason why the agency can-
not develop a specific mitigation measure at the time it prepares the
EIR. For example, a project with the potential to impact endangered
plants that will not bloom for many months after EIR preparation, or the
case of a program EIR where site-specific development plans will not
be available until sometime in the future .
To support the concept of deferral , the miti gation measure must
meet three basic elements: First , the agency must co mmit itself to
the mitigation . In other words, it must identify and adopt mitigation .
Second , the agency must establish performance standards for what
the end result of mitigation must achieve (some agencies call this the
desired future condition ). Third, the agency must provide a range of
feasible mitigation options from which the applicant or agency staffs
can choose to achieve the stated performance standards (Sacra-
mento Old City Assoc. v. City Council of Sacramento (1991) 229 Cal.
App . 3d 1011).
The courts have discussed the question of how much detail is nec-
essary in an EIR's discussion of mitigation measures. The courts have
allowed agencies to include a generalized discussion of mitigation in an
EIR, with details deferred to future environmenta l analysis or implemen-
tation of the measures themselves . In Dry Creek Citizen 's Coalition v.
County of Tulare (1999) 70 Ca l. App. 4th 20, the court upheld the coun-
ty's mitigation detail in an EIR for a sand and gravel mine , stating that a
general description of the teclhnical aspects of the project's design fea-
tures to mitigate impacts was sufficient to understand the environmen-
tal impacts. The mitigation measures were not requ ired to include full
technical specifications. In Riverwatch v. County of San Diego (1999)
76 Cal. App . 4th 1428 , the court upheld the county's description of miti-
gation in an EIR for a rock quarry (but disapproved the EIR on other
grounds), stating that including the details on the mitigation for a road
(road improvements were in the planning stage) was "not meaningfully
possible" at the time .
draft EIR and possib ly final EIR may include a lte rnatives that are ultimate ly
found to be infeas ible during the preparation of the findings (see, fo r exa mple,
San Franciscans Upholding the Downtown Plan v. City and County of-San Francisco
(2002) 102 Cal. App. 4th 656).
Evaluation and Comparison of Alternatives
The EIR must include su fficient information about each alternative to allow
meaningful evaluation, analysis, a nd compariso n with the proposed project.
Chapter 7 EIR Preparation : Contents 175
Figure 7-6
Types of Mitigation
Figure 7-7
Adequacy of
Mitigation Measures
176 CEQA Deskbook
Mitigation Action
Avoid
Minimize
Rectify
Reduce or Eliminate
Compensate
Explanation
Avoid the impact altogether by not taking ce rtain
actions or parts of actions
Minimize impacts by limiting the degree or
magnitude of the action and its impleme ntation
Rectify the impact by repairing, rehabilitating,
or restoring the affected environment
Reduce or eliminate the impact over time by through
preservation and maintenance during the life of
the action
Compensate for the impact by replacing or
providing substitute resources or environments
While CEQA does not require that alternatives be evaluated in equal l evel of
detail, the EIR must evaluate the comparative merits of the alternatives. A
matrix displaying the major characteristics and impacts of each alternative may
be used to summarize the comparison. When possible, the comparison should
rely on quantitative factors. Generalized qualitative factors (e.g., "Alternative A
is better than Alternative B") may not be adequate. However, the discussion of
environmental effects of alternatives may be in less detail than the discussion
of the impacts of the project as proposed (Guidelines § 15126.6(d)).
No-Project Alternative
The EIR must always evaluate and analyze the impacts of the no-project alterna-
tive. The purpose of evaluating the no-project a lternative is to allow
decisionmakers to compare the impacts of approving the project with the impacts
of not approving the project. However, the no-project alternative is not the base-
line for determining whether the proposed project's impacts are significant
.
Adequate 0 Questionable I ? I 1.~ Inadequate ~
• Avoid I ~ • Provide funding for • Consult with
• Minimize • Monitor or report :/ • Su~mit for review
• Rectify • Comply with existing ll' • Coordinate with
• Reduce over time I"' regulations or • Study further
• Compensate ordinances • Inform
• Preserve already • Encourage/discourage
existing natural area • Faci litate
• Strive to
--· _..
-'-. ···•
0
unless it is id entica l t o the exis ting environmental setting a n alysis that establishes
th e baseli ne (Gu idelines§§ 15125, 15126.6(e)).
The no-project analysis must discuss the ex isting co ndition s at the time the
n otice of preparation is published as well as wh at wo uld be reasonably expected to
occur in the foreseeable future if the projec t were not approved, based on current
plans and consistency with ava ilable infras tructure and community se rvices.
The disc u ss io n of the n o-project a lterna tive will u sually procee d along
o n e of two lines. When the project is the revi sion o f a n existing land u se o r
Court Requires EIR for Demolition of Historic Building and Declares
Mitigation Measures Inadequate: League for Protection of Oakland's
Architectural and Histori~al Resources v. City of Oakland (1997) 52 Cal
App. 4th 60
In a decision with potentially far reaching implications for practices of historical resource protection
under CEQA, the court of appeals held that demolition of an identified historic structure was , in
and of itself, a significant environmental impact. The court also held that some of the most com-
mon methods of mitigating impacts to historic buildings were not adequate under CEQA. This
case involved the proposed demolition of the old Montgomery Ward building in one of Oakland 's
warehouse districts . The City of Oakland had iden tified the building as an historic structure in its
general plan , although it was not listed either on the national or state listings of historic build-
ings . A developer proposed to demolish the building to construct a new one. In response to th is
proposal, the city prepared a mitigated negative declaration . The proposed mitigation for the
loss of the building consisted of the following measures, which until th is decis ion, were com-
monly used throughout California :
• Prepare an historic resource documentation report to prov ide historic material for the city's
arch ives
• Conduct a historic building survey to further document the historic structure
• Design the new bu ilding to reflect the historic elements of the old building
• Display a plaque or marker commemorating the building
• Consult with a qualified archaeolog ist to monitor excavation for discovery of any possible cul-
tural elements
The court first found that the historic building was a "significant" historical resource even though
it was on neither the state nor federal listing of historic structures . On the question of whether a
historic resource is "s ignificant," the court established three possible criteria :
• Mandatory significance-an historical resource must be considered significant if it is on or eligi-
ble for listing on the National Register of Historic Pla ces or the California Register of Historic
Resources
• Presumptive significance-an historical resource is presumed to be significant if it is listed on a
local register of historica l resources unless the preponderance of the evidence demonstrates
otherwise
• Discretionary significance-an historical resource may st ill be considered sign ificant even it is
not on a federal , state , or local list if substantia l evidence demonstrates it's significance
Having found that the Montgomery Ward bu il ding was significant, the court also held tha t the
proposed package of mitigation measures was not adequate under CEQA. The court concluded
that , even taken together, this package of mitigation measures wou ld not reduce the effects of
the building 's demolition to a less than significant leve l.
Chapter 7 EIR Preparation: Contents 177
Figure 7-8
Five Questions for Effective
Mitigation Measures
178 CEQA Deskbook
WHY
WHAT
WHO
WHERE
WHE N
State the objective of the mitigation
measure and why it is recommende d
Explain the specifics of the mitigation measure
and how it will be designated and imple mented
Identify measurable performance standards by which
the success of the mitigation can be determined
Provide for con tingen t mitigation if mon itoring reveals
that the success standards are not satisfied
Identify the agency, organi zat ion, or individ ual
responsib le for implementing the measure
Identify the specific location
of the mitigation measure
Devel op a sch edule for implementation
regulatory plan, policy, o r o ngo ing operation, the n o-project alterna tive will be
the continuation of the plan, policy, o r operation into the future (not necessarily
the plan a t full build-out). If, on the other hand, the project is an individua l
deve lo pment project on identifiab le location, the n o-p roject alternative should
evaluate the environmental effects of the property remaining in its exiting state.
If, howeve r, other future uses of the la nd are reas on ably fo reseeable, such uses
should also be discussed as possible no-project sce narios and the project should
be compared to them a lso (Guidelines§ 15126.6(e)(3)).
The description o f the no-proj ect alternative must provide a realistic view
of the s ituation that would result if the project does not occur. And, the EIR
must prov ide more tha n a cursory analysis of the no-p roject a lternative (see, fo r
examp le, Planning and Conservation League v. Department of Water Re sources
(2000) 83 Cal. App. 4th 892) where the EIR for the State Water Project water
allocations was overturned because the No Project Alternative faile d to repre-
sent foreseeable future actions under existing regu lations.
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