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HomeMy WebLinkAbout14 - Analysis of InitiativeCITY OF NEWPORT BEACH CITY COUNCIL STAFF REPORT Agenda Item No. 14 July 11, 2006 TO: HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL FROM: Robin Clauson, City Attorney ext. 3131, rclauson @city.newport- beach.ca.us SUBJECT: Analysis of Initiative Requiring Voter Approval for Major Development over As -Is- Condition of City ISSUE: What impact will the proposed initiative requiring voter approval for major developments over as -is- condition of City have on the City? RECOMMENDATION: Receive and file. Background: California Elections Code Section 9212 permits the Council to request a report on the impacts of an initiative. On January 24, 2006 the City Council ordered the report on the two then circulating initiatives should they be returned and certified for consideration by the Council. The initiative petition entitled "Voter Approval for Major Developments over As -Is- Condition of the City" (the "Initiative ") was certified by the Orange County Registrar of Voters as receiving the required number of verified signatures. On June 27, 2006 the City Council approved the certification of the initiative petition and ordered the report to be provided on or before July 25, 2006. This report will provide the analysis requested by the Council in accordance with Elections Code 9212. Discussion: The Initiative, if approved would add a new ordinance to the Newport Beach Municipal Code which would require certain development projects in the City to first prepare and obtain City Council approval of a specific plan and then obtain final approval from the City's voters. This report will provide an analysis of only the sections of Elections Code 9212 where impacts that could result from the Initiative's provisions were identified. Where applicable the report will summarize attached reports that were provided by David Lepo of the planning firm, Hogel- Ireland, City Planning Department Senior Planner, Patrick Alford and John Ramirez, attorney with the firm of Rutan & Tucker. Analysis of Initiative Requiring Voter Approval for Major Development over As -Is- Condition of City July 11, 2006 Page 2 I. Elections Code Section 9212 sub - section (1): Fiscal Impact. A) Staff — Administration Costs The attached memorandum from David Lepo (Attachment A) describes the Initiative's provisions and identifies types of future development projects in the City that could be required to prepare a specific plan and obtain voter approval. The analysis is necessary to determine the resulting increase in costs to implement and administer the proposed ordinance, including staff time, computer programming and costs of specific plan preparation based upon his firm's experience as project mangers for projects in the City and experience preparing specific plans for other clients. The memo also reflects cost estimates David Lepo obtained from the firm of Urban Crossroads and the City Traffic Engineer for additional summer traffic count information required by the Initiative. The costs associated with this new administrative infrastructure are summarized below: Because of the cumulative component to the proposed ordinance, "minor development" projects (projects that do not individually reach the established thresholds) will have to be monitored for each "neighborhood" for a five (5) year period in order to insure that other minor development projects within the 500 -foot "neighborhood" do not exceed the proposed thresholds. This is estimated to result in a one -time cost of $7,500 for additional Permits Plus and ArcView programming and an estimated $5,120 annually in additional staff time for data collection and input and monitoring of this data. There also will be additional staff time to research this data to determine the existing as built condition of a neighborhood to provide property owners with information whether and how the ordinance would apply to them when they propose a development for their property. • The minimum cost to prepare one of the specific plans required by the proposed ordinance is estimated to be $16,000 to $47,000 depending upon the project. This cost would be passed on to the applicant. City staff review and processing of a specific plan is estimated to be $4,000 to $6,400. This cost could be recovered by additional fees paid for by the applicant. The proposed ordinance requires the specific plan to include a "Summer Traffic Analysis" in addition to the standard traffic studies required by the City. In order to fulfill this requirement, the City will need to collect and annually update vehicle counts at primary and secondary intersections in addition to traffic counts taken between February 1 and May 31 pursuant to the Traffic Phasing Ordinance. This is estimated to result in an additional $15,000 annually. Since this data will need to be collected annually whether or not a project is proposed, it is uncertain that the costs can be recouped through increased application fees. Analysis of Initiative Requiring Voter Approval for Major Development over As -Is- Condition of City July 11, 2006 Page 3 • The cost to prepare a Summer Traffic Analysis is estimated to increase the cost of standard traffic studies by 25 percent. This will most likely be paid by the applicant. B) Legal Defense Costs The Initiative provides that if it is approved by the electorate, then the City must vigorously defend its provisions from any lawsuits. The attached memorandum from John Ramirez (Attachment B) outlines the potential for areas of legal challenge that the City might face if the Initiative is passed: For any lawsuit the defense costs could be $50,000 to $75,000 to gain a court's favorable interpretation of the challenged provisions of the ordinance. Mr. Ramirez explains that the City could be forced to defend against lawsuits claiming that the Initiative impermissibly imposes the initiative process onto quasi - adjudicatory land use decisions such as sub - division map approvals, variance and use permit approvals, site plan reviews and modification permits. He also explains that the Initiative is arguably inconsistent with the Permit Streamlining Act and State Housing Element law and there is the potential for challenges under the state and /or federal "takings" clauses. C) Election Costs The City Clerk has discussed with the County Registrar of Voters the current election costs to bring a project to the electorate in the manner required by the Initiative. If a specific plan is processed and approved as required by the ordinance in time to consolidate with a general municipal election then the additional costs to the City would be approximately $4,000. If a specific plan is approved at any other time and requires a stand alone special election, the costs would be approximately $214,500. The ordinance provides that if a special election is necessary the costs of the special election could be shared by mutual agreement between the City and the applicant. II. Elections Code Section 9212, sub - section (2): Impact on the consistency of, and limitations on, City actions A) Government Code Section 65008 The Initiative makes an exception from its requirements for, "remodeling, construction or reconstruction of a single building by individual property owners in R -1, R -1.5 or R -2 zoned parcels." There is no exception for multi - residential projects. The attached memorandum from Patrick Alford (Attachment C) describes the conflict with Government Code Section 65008 that could result from the denial of a multi - family project under the Initiative. Analysis of Initiative Requiring Voter Approval for Major Development over As -Is- Condition of City July 11, 2006 Page 4 B) State law for Specific Plans The Initiative requires that a project subject to its provisions must prepare and gain approval of a specific plan as provided under both State law and the ordinance before going to the voters for final approval. Attachment C also explains that because the Initiative imposes State law specific plan requirements on individual projects, the requirement is inconsistent with the intent of the Government Code provisions for specific plans because it requires a specific plan to serve as an exact plan for a single project, rather than as its intended purpose as a link between policies of the General Plan and individual developments. III. Elections Code Section 9212, sub - section (3): Effect on the use of land, the impact on the availability and location of housing, and the ability of the City to meet its regional housing needs. The City's Housing Element is approved by the State Housing Community Development Department (HCD) and incorporates the requirements from the City's Regional Housing Needs Assessment (RHNA) for the City's regional share of housing units, for the 1998 -2008 period. The Housing Element reflects California State law requirements forthe City to facilitate development of both market rate and affordable housing. However, State law does not require the City to provide affordable housing. The Initiative provides an exception from the ordinance requirements for "affordable housing projects required by State or federal law ". It is unclear whether the exception is applicable to affordable housing projects not required by state or federal law, but provided pursuant to the City's Housing Element. For instance, the Bayview Landing Senior Housing Project was not required by state law. It is likely that future projects similar to the Bayview Landing project would require . specific plan and voter approval under the new ordinance. This ordinance and the requirements for voter approval and preparation of specific plans could become a constraint on the ability to develop the required housing within the City and would need to be identified in the Housing Element as such. IV. Elections Code Section 9219, subsection (4) and (7): Impact on funding for infrastructure of all types, including, but not limited to, transportation, schools, parks, and open space, and traffic congestion. The following information from Rich Edmonston the City's Traffic Engineer describes the City Traffic "Fair Share Fee" program and how the program applies to development in the City to pay for traffic infrastructure improvements identified in the Circulation Element to alleviate traffic congestion: The City established its Fair Share Fee program in 1984 in recognition of the fact that there was inadequate funding available to complete the arterial Analysis of Initiative Requiring Voter Approval for Major Development over As -Is- Condition of City July 11, 2006 Page 5 highway system and related components. Using the Newport Beach Traffic Analysis Model, ( NBTAM), the impact of land use allowed under the General Plan was evaluated and a list of circulation system improvements was identified to achieve an acceptable Level of Service for the arterial system. These improvements included widening arterials to their full planned width, additional lanes at key intersections, and the City's share of key regional projects. Cost estimates for these improvements were prepared and a total budget developed. Existing funding sources such as gas tax, Measure M funds, and funding by developers of frontage improvements were subtracted from the total cost to arrive at the funding shortfall. NBTAM produced the number of future trips that would result from development within the City. The funding shortfall was divided by this number to determine the cost per additional trip that would be needed to fund the system improvements. The result was the Fair Share Fee and it is charged to all residential and commercial developments that are expected to increase traffic on the arterial street system. The only exception is a waiver for Affordable Housing developments. This process will be repeated as part of implementing the General Plan update and new fees established for the newly identified improvements. To the extent projects subject to the initiative are rejected by the voters it could impact the sufficiency of the funds budgeted for Circulation Plan improvements or result in increased fees to development not subject to the ordinance. Environmental Review: This report is not a project under CEQA. Public Notice: N/A Funding Availability: N/A Alternatives: N/A Prepare d Submitted by: Robin Clauson, City Attorney Attachment A — Memo from David Lepo Attachment B — Memo from John Ramirez Attachment C — Memo from Patrick Alford IPi14I4[a] :Lh1 Bill TiI DATE: July 6, 2006 TO: Patricia Temple, Planning Director FROM: David Lepo, Contract Planner SUBJECT: "As Built Condition" Initiative Estimated Implementation Costs This memorandum has been prepared in response to your request for an estimate of direct costs likely to be incurred by both the City of Newport Beach and by development project proponents in the course of complying with the terms of the ordinance proposed by the initiative, if passed by the electorate. Historical data for discretionary projects recently processed by the City and for development project documents prepared by Hogle- Ireland were used to estimate manpower costs associated with preparation, review, and tracking of entitlement applications necessitated by the proposed ordinance. Costs for computer programming necessary to compile cumulative project data for monitoring compliance with the proposed ordinance are also provided. Direct costs associated with implementation of the proposed ordinance were based on assumptions about the number of projects in Fiscal Year 2006 -2007 that would be subject to additional processing requirements if the Initiative becomes law. A project requiring additional processing would be any as defined in the proposed ordinance as a "Major Development" or a "Minor Development." A "Major Development is a proposed Development that would 'significantly Increase Traffic, Density or Intensity above the 'As Built Condition' of a 'Neighborhood'. "' A "Minor Development refers to all Developments that do not quality as a Major Development. ,2 The proposed ordinance provides the following definitions for phrases used in defining Major and Minor Developments: "As Built Condition" refers to residential units, buildings, and traffic existing on the Application Date; "Application Date" is the date a request for approval of a Development proposal is first submitted to the City; ' "INITIATIVE TO BE SUBMITTED DIRECTLY TO THE VOTERS" 2IBID Page 1 of 6 ATTACHMENT A "Significantly Increase" means exceeding one or more of the following thresholds over the present As Built Condition of a Neighborhood: Traffic — over 100 additional Peak Hour Trips; Density — over 100 additional dwelling units; Intensity over 40,000 additional square feet of floor area. Intensity of a Development includes the square footage of all dwelling units and commercial buildings including hotels, timeshares; theatres if they are developed on the same property as any of these commercial land use categories. A Significant Increase occurs if a Development proposal and other Minor Developments in the same Neighborhood that were approved within five years of the Application Date exceed one of the thresholds. "Other Minor Developments" shall not include those approved pursuant to this Chapter nor approved prior to the Effective Date of this Chapter; "Neighborhood" is all property within 500 feet of any parcel or lot that is part of a Development proposal. The proposed ordinance defines "Development ", whether "Major' or "Minor', as a discretionary `project" as defined in the California Environmental Quality Act (CEQA). While CEQA defines a project as "an activity which may cause either a direct physical change in the environment," neither CEQA nor the proposed ordinance provides a definition for "discretionary' or "discretionary project." However, the CEQA Guidelines provide the following definition: A project which requires the exercise of judgment or deliberation when the public agency or body decides to approve or disapprove a particular activity, as distinguished from situations where the public agency or body merely has to determine whether there has been conformity with applicable statutes, ordinances, or regulations. Therefore, for purposes of this analysis, discretionary projects in Newport Beach are assumed to be those requiring a Use Permit, a Modification Permit, a Variance, Planned Community Development Plan approval, a tract or parcel map, a lot line adjustment, or a Code or General Plan amendment. However, it could also be interpreted that a discretionary project includes any project that requires discretion by any public agency, such as the California Coastal Commission, CalTrans, Airport Land Use Commission, etc. The proposed ordinance exempts "[r]emodeling, construction or reconstruction of a single building by individual property owners in R -1, R -1.5 or R -2 zoned parcels ... " Only a fraction of those projects requiring Planning Department review are discretionary and thus subject to review and monitoring for potential significant increases in traffic, density, or intensity pursuant to the proposed ordinance. Of the estimated 6,853 applications processed by the Planning Department in fiscal year 2005 -2006, only 250 involved discretionary approvals. This number could significantly increase after the Local Coastal Program certification and Page 2 of 6 discretionary authority for coastal development permits is transferred from the California Coastal Commission to the City. It is estimated that the City will process 100 to 150 coastal development permits per year. However, it is difficult to estimate how many of these permits will be subject to the provisions of the proposed ordinance. To put anticipated outcomes associated with passage of the proposed ordinance in perspective, the following discretionary projects approved in Newport Beach in calendar year 2005 would have required voter approval (Major Developments), or would have required tracking (Minor Developments) for cumulative contributions to significant increases may be considered: Non - residential "Major Developments" Mariner's Mile Gateway - Development Plan, Use Permit, Modification Permit (new building) Newport Lexus - General Plan and Code Amendment, Use Permit, Modification Permit (new building) Non - residential "Minor Developments" 980 W. Coast Highway - Modification Permit (new building) 21162 nd Street - Use Permit (683 sq. ft. addition) 2172 Bristol - Use Permit (658 sq. ft. addition) 3600 E. Coast Highway— Use Permit (new building) 2110 W. Ocean Front — Use Permit (333 sq. ft. addition) 3001 Newport Boulevard — Modification Permit (new building) 4343 Von Karman — General Plan Amendment, Planned Development Plan (additional floor area within existing envelope) Residential "Major Developments" NONE Residential "Minor Developments" NONE Pursuant to the proposed ordinance, the two projects included above under "Non- residential Major Developments" would have been subject to voter approval because peak hour vehicle trips in each case exceeded 100. Cumulative net increases in vehicle trips and/or building area attributable to projects shown above under "Non- residential Minor Developments ", if approved after the effective date of the proposed ordinance, would be tracked along with similar projects approved in the ensuing five -year period after approval of each project. Page 3 of 6 At any time that cumulative trip and /or building area totals of projects within 500 feet of one another exceeded the ordinance thresholds of more than 100 trips and /or 40,000 square feet, respectively, a Specific Plan would be required for the next project within the 500 -foot "neighborhood" that is projected to generate additional trips or result in a net increase in building area. Project approval would depend on an affirmative vote on the Specific Plan by the electorate in Newport Beach. While the floor area for the new buildings listed above as non - residential minor developments was not immediately available to determine if the new building increased floor area over existing, the geographic dispersion and relatively small increases from building additions listed above for a one year period, suggest that cumulative net increases in trip generation and building areas within any non - residential "neighborhood" over a five year period may not approach the thresholds for voter approval set forth in the proposed ordinance. Moreover, given the exemption for homes in the R -1, R -1.5, and R -2 zones, relatively few residential minor developments would need to be tracked for their contributions to cumulative increases in the number of units within any one neighborhood. Although it does not appear that additions to or new single - family homes are likely to be subject to the proposed Specific Plan requirements, the ordinance would apply to single - family homes in zoning districts other than R -1, R -1.5, or R -2 particularly when the residential adjoins areas designated for either non- residential, or mixed use residential development. Currently, 65 percent of the land designated for single - family and two - family homes is not covered by the ordinance exception for R -1, R -1.5 and R -2. Most residential development is located within Planned Community (PC) Districts or Specific Plan (SP) Districts. Because the ordinance sets up 500 foot neighborhoods for each parcel that requests a discretionary approval, there could be circumstances where the radius would apply to a discretionary approval for a residential project in a non - exempt zoning district. The proposed ordinance requires preparation of a Specific Plan, as defined in California Government Code Section 65450 et. seq., for each Major Development, and for each Minor Development which together with previously approved Minor Developments would cumulatively result in a significant increase in traffic, density or intensity. An estimate of costs for preparation and for staff review of a Specific Plan, costs of day -to -day development application and approval monitoring needed to implement the proposed ordinance, and computer programming costs have been compiled based on assumptions about the numbers and geographic dispersion of Major Developments and Minor Developments. Even though the number of developments likely to require voter approval pursuant to the proposed ordinance is relatively small, this Initiative will require City investment in additional computer programming and staff time to maintain an Page 4 of 6 accurate data base for monitoring of cumulative increases in trip generation, number of dwelling units, and floor area within any 500 -foot neighborhood. Accordingly, compliance with the proposed ordinance will result in the following costs to the City of Newport Beach: Permits Plus & ArcView (GIS) Programming $7,500 (one -time) (automatically define "neighborhoods ", track cumulative totals) Salaries attributable to data collection and $5,120 (per year) input for "Discretionary Applications" and monitoring of data base (Based on $40 /hour average at 128 hours /year) In the event the proposed ordinance thresholds are exceeded, a Specific Plan including the minimum information required by California Government Code Section 65450 et. seq. will be required. In addition to minimum State - mandated information, the proposed ordinance requires inclusion of a description of "... the project's consistency or lack of consistency with existing Neighborhood uses, i.e. commercial, residential etc..." and a Summer Traffic Analysis of the project's impacts on peak hour traffic during the months of July or August "... [i]n addition to traffic studies otherwise required by the City .. ." Costs for preparing a Specific Plan for a single - family residential proposal and for a Specific Plan for a typical commercial retail development are indicated below and derived from project records of Hogle- Ireland, Inc. Staffing costs associated with review and processing of each are included based on recent projects in the City of Newport Beach. In addition, preparation of a Summer Traffic Analysis will require that the City collect and annually update vehicle counts at primary and secondary intersections in addition to traffic counts taken between February 1 and May 31 pursuant to the Traffic Phasing Ordinance. Costs for summer traffic counts are also shown. Specific Plan Preparation (single - family dwelling) $16,000 Staff review and processing of Specific Plan $4,000 (90 hours at $40 /hour) Specific Plan Preparation (commercial retail) $47,000 Staff review and processing of Specific Plan (160 hours at $40 /hour) $6,400 Page 5 of 6 Annual intersection (Summer) vehicle counts $15,000 Summer Traffic Analysis Page 6 of 6 Cost of standard traffic study plus 25% RUTAN AST. ORNrisS AT LA\y4'y Rutan & Tucker, LLP 611 Anbn Blvd., Suite 1400 PO Box 1950 Costa Mesa, CA 92628 -1950 (714)641 -5100 Fax(714)546 -9035 w Futancom ORANGE COUNTY PALO ALTO (650) 3204500 A PARTNERSHIP INCLUDING PROFESSIONAL CORPORATIONS MEMORANDUM TO: Robin Clauson, City Attorney FROM: John A. Ramirez DATE: July 7, 2006 FILE NO.: 066751 -0073 RE: Legal Issues in Connection With Greenlight II Initiative This memorandum provides an overview of several legal issues that are raised in connection with the proposed Greenlight II initiative ( "Initiative "). This memorandum is not exhaustive, but is instead intended to provide only a brief overview of several of the core legal issues that are raised by the Initiative. OVERVIEW OF LEGAL ISSUES RAISED BY THE INITIATIVE The Initiative Arguably Concerns Administrative Subjects and Not Legislative Subjects: As you know, Greenlight II requires that a specific plan be prepared for all "major development" proposals. Greenlight II also requires that all such specific plans prepared for major development proposals be approved by the voters. In the absence of voter approval, the specific plan shall not take effect. "Major developments" are defined as any proposed developments that would "significantly increase traffic, density, or intensity" above what is defined as the "as -built condition" of a "neighborhood." Suffice it to say that the terms of the Initiative are sufficiently broad to encompass a vast array of development proposals. Unlike Greenlight I, which limited the definition of "major development" to any "major amendment" to the City's General Plan, Greenlight II requires the preparation of a specific plan for permitting decisions that are non - legislative, quasi - adjudicatory City land use decisions, such as decisions to approve a tentative tract or parcel map, conditional use permit, variance, site plan, or modification permit. Because Greenlight II would functionally require the preparation of "specific plans" for land use decisions that are themselves non - legislative, an argument could be made that the Initiative is invalid because it concerns "administrative" subject matters as opposed to purely "legislative" acts. 1032/066751 -0073 724740.02 ao7/07/06 ATTACHMENT B Robin Clauson, City Attorney July 7, 2006 Page 2 It is well settled that the power of initiative applies only to legislative acts such as the enactment of general plans and zoning ordinances and does not apply to quasi - adjudicatory and administrative acts such as subdivision map approvals, the granting of use permits, variances, site plans, and modifications permits. (Arne! Development Company v. City of Costa Mesa (1980) 28 Cal.3d 511, 514; Yost v. Thomas (1984) 36 Cal.3d 561.) By forcing tentative maps, conditional use permits, variances, site plan reviews, and modification permits to be processed pursuant to a specific plan, and then to be subsequently voted upon by the people, an argument could be made that the Initiative violates the aforementioned California Constitutional prohibition on the use of the initiative process to make quasi - adjudicatory land use decisions. In addition, several cases hold that the initiative process cannot be used to create "procedural roadblocks" that impede the carrying out of previously - established city policy. (Citizens for Jobs and the Economy v. County of Orange (2002) 94 Cal.App.4`h 1311, 1332 -33; City of San Diego v. Dunkl (2001) 86 Cal.App.41h 384, 401.) It is possible (and perhaps likely), that if the Initiative is adopted, the City will be forced to defend against lawsuits claiming that the Initiative impermissibly imposes the initiative process onto quasi - adjudicatory land use decision making, which is unlawful under the California Constitution. The Initiative Poses Numerous Interpretation Problems that Could Expose the City to Lawsuits and Potential Liability: From an as- applied standpoint, the Initiative also imposes numerous interpretation issues that could expose the City to numerous lawsuits and potential liability. Some of these issues include: The Initiative is arguably inconsistent with the Permit Streamlining Act ( "PSA "). Under the PSA, municipalities have one year within which to act upon a quasi - adjudicatory land use permit (e.g., subdivision map, CUP, modification permit etc.). However, to the extent the Initiative would characterize such a quasi - adjudicatory permit as a "Major Development" thus causing a specific plan to be prepared for such a permit and forcing the specific plan to be subject to a vote of the people, it is possible that applicants would mount litigation against the City claiming that the Initiative is contrary to the PSA. While the State Housing Element Law never "requires" the approval of affordable housing projects, the entire purpose of the State Housing ElemenCLaw is to encourage and facilitate a local municipality's ability to satisfy its Regional Housing Needs obligations. It is possible that to the extent the Initiative requires future low income housing projects to be subject to a vote of the people, that it could be deemed to run afoul of the State Housing Element Law. (See, e.g., BuildinglndustryAssoc. v. City of Oceanside (1994) 27 Cal.App.4a' 744.) 1032/066751 -0073 724740.02 a07/06/06 Robin Clauson, City Attorney July 7, 2006 Page 3 • Because the Initiative is affective City -wide, an issue exists as to whether or not Coastal Commission approval is required for the Initiative to take effect in those portions of the City within the coastal zone. • Undoubtedly, litigants will mount legal challenges under the "taking clause" asserting that by effectively allowing certain landowners' to develop up to the identified "limits" and then causing the subsequent landowner(s) to go to an election and face potential defeat, the Initiative causes an unlawful taking. While we do not express our views as to the merits of these potential claims, suffice it to say that dealing with such claims will impose a cost burden on the City. Please contact me if you have any further questions or concerns regarding any of the issues raised in this memorandum. 1032/066751 -0073 „_ 724740.02 a07/06/06 CITY OF NEWPORT BEACH CITY COUNCIL STAFF REPORT Agenda Item No. July 11, 2006 TO: HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL FROM: Planning Department Patrick J. Alford, Senior Planner (949) 644 -3235 palford Ca) city. newport- beach.ca. us SUBJECT: Planning Analysis for "As Built Condition" Ordinance Initiative ISSUE: What are the impacts of the proposed "As Built Condition" Ordinance on the consistency between planning and zoning? DISCUSSION: Background On June 27, 2006, the City Council directed staff to report on impacts of the initiative on municipal operations pursuant to Election Code Section 9212. This report will provide an analysis of issues involving apparent inconsistencies with the planning and zoning laws of the City and the State of California. Analysis Govemment Code Section 65008 Government Code Section 65008 prohibits cities, counties, or other local governmental agencies from enacting or administering discriminatory ordinances. Section 65008 b -1 -D prohibits discrimination against any residential development because the development consists of a multifamily residential project that is consistent with both the jurisdiction's zoning ordinance and general plan. The proposed ordinance contains exceptions for projects consisting of a single building by individual property owners in parcels in the R -1, R -1.5, and R -2 Districts. These zoning districts permit single - family and two- family dwelling units by right, but prohibit multi - family residential dwelling units. Since there is no similar exception for single multifamily building (i.e., a triplex), the enactment or administration of the ATTACHMENT C "As Built Condition" Initiative July 12, 2006 Page 2 proposed ordinance, or the denial of a multifamily project, could be challenged on the basis that it is in conflict with Government Code Section 65008. Specific Plans The proposed ordinance requires the preparation of a "Specific Plan" for all projects that exceed one or more development thresholds established by the ordinance, either individually, or cumulatively over a five (5) year period. Specific plans are to be prepared in accordance with Government Code Section 65450 at seq., which provides for the preparation of specific plans for the systematic implementation of the general plan for all or part of the area covered by the general plan. Section 65450 requires specific plans to include a text or diagrams that specify all of the following in detail: 1. The distribution, location, and extent of the uses of land, including open space, within the area covered by the plan. 2. The proposed distribution, location, and extent and intensity of major components of public and private transportation, sewage, water, drainage, solid waste disposal, energy, and other essential facilities proposed to be located within the area covered by the plan and needed to support the land uses described in the plan. 3. Standards and criteria by which development will proceed, and standards for the conservation, development, and utilization of natural resources, where applicable. 4. A program of implementation measures including regulations, programs, public works projects, and financing measures necessary to carry out the above. 5. A statement of the relationship of the specific plan to the general plan. Although specific plans can be very detailed, they are meant to be flexible, dynamic documents. The State Office of Planning Research (OPR) describes a specific plan as follows`. A specific plan is a tool for the systematic implementation of the general plan. It effectively establishes a link between implementing policies of the general plan and the individual development proposals in a defined area." "As Built Condition" Initiative July 12, 2006 Page 3 However, the proposed ordinance requires specific plans to serve as a detailed development plan. In addition to contents required by the Government Code, the proposed ordinance requires the specific plan to include the following information: 1. A plot plan or diagram, drawn to scale, showing the arrangement of buildings, driveways, pedestrian ways, off - street parking and off - street loading areas, landscaped areas, fences, and walks. 2. Drawings, renderings, or sketches, drawn to scale, showing all elevations of proposed buildings. 3. A description of the project's consistency or lack of consistency with existing neighborhood uses. 4. An analysis of the project's impact on peak traffic levels during the months of July and August. The proposed ordinance is inconsistent with the intent of Article 8 of the Government Code (Specific Plans) because it requires a specific plan to serve as an exact plan for a single project, rather than as a link between policies of the General Plan and the individual development. Prepared by: Patrick J. Alford Senior Planner Submitted by: Patricia L. Temple Planning Director