Phyllis - to Assemlymember Low - HOW Governance - Housing

From: Phyllis D

To: Aditi.Shahkarwar@asm.ca.gov
Sent: 12/5/2017 12:28:01 P.M. Pacific Standard Time
Subj: For Rep. Low

 

Dear Rep. Lo,

Thank you for hosting last night’s gathering and listening patiently to our ideas. I would like to remind you of the points I brought up in two areas, where I believe that the state government has over-reached itself: HOA governance and housing legislation.

A. HOA governance

As a Board member of a small HOA, I had hoped that Davis Stirling would have been ameliorated but instead it was made more stringent, and the last session of the state legislature has produced additional onerous provisions. This is based on the unrealistic notion that an HOA is a level of government, when in fact we more resemble a small business. Anyone who deals with HOAs will attest to the fact that most homeowners are not interested in engaging in an exercise in participatory democracy. They want the property well-maintained, their dues low and to be left alone. Very few bother to attend Board meetings, we Board members are re-elected by default because no one else cares to run, and we cannot even obtain a quorum for an election. This is true of many HOAs; just attend an ECHO conference! Our own management company is miles away and we do not have onsite staff, so Board members are more active than in larger HOAs. Thus, the full force of the Brown Act is not useful. I do not see how the membership is better informed if Board members do not communicate with one another over simple day-to-day matters; certainly they are not better served.

Some of the latest laws do not respect our status as an enterprise while imposing governmental obligations on us. For example, in a condo building with a single roof, that roof has to be maintained as a unit. The Board has to decide, in an open meeting, perhaps after polling the members, whether to add solar panels or not; it makes no sense for individual homeowners to put up panels here and there on a common roof. On the other hand, if one resident harasses another, particularly a member of a protected class, this is a police matter. The most a community manager or Board member can do is possibly mediate a purely verbal dispute. We should not be held liable for handling felonies. I would hope that the state government could develop a more realistic view of what an HOA is.

B. Housing

I am an advocate of sensible development. I believe that the Bay area definitely needs more housing, particularly affordable housing at every level, to provide for those who already live or work here. I applaud the decision to restore to cities the power to demand of developers that they include a certain percentage of bmr units in their housing proposals. I would also note that housing projects are often delayed not necessarily because of opposition to housing per se, but because developers include in their proposals unacceptable, environmentally egregious provisions regarding offices, heights, densities and setbacks. Having said that, I would still note that the number of new units demanded of any area has to be consonant with the capacity of that area to absorb them and still maintain its quality of life.

In this regard, the most recent housing legislation is overkill in that it takes away the authority of cities to make rational decisions concerning environment, water quality and availability, traffic, and the general quality of life. It seems that public officials have become mesmerized by the planners’ visions of bringing urban density to suburban areas, based on the very questionable notion that this is what the public, especially the younger generations want.

I am including a link to an interesting article in this regard.

https://www.thedailybeast.com/the-urban-revival-is-an-urban-myth-and-the-suburbs-are-surging?via=ios

Thank you for your attention to these issues.

Sincerely,

Phyllis D

Cupertino

Liang - Vallco is Zoned for 2400 Units of Housing Units?

From: Liang C
Date: Tue, Dec 5, 2017 at 9:29 AM
Subject: Vallco is Zoned for 2400 Units of Housing Units?
To: City Council <citycouncil@cupertino.org>, "City of Cupertino Planning Dept." <planning@cupertino.org>, David Brandt <davidb@cupertino.org>

Dear City Council Members and Planning Staff,

A recent article by Curbed SF points out that Senator Wiener said:

"I did speak with him [Darcy], and he expressed an openness to 2,400 units of housing, which was what the site is zoned for, and I was pleased by that.”

Under the new pro-housing laws, effective January 1, 2018, would Vallco Shopping Mall site become zoned for 2400 units by right? Please confirm.

Has the City Council members reached a consensus to passively accept such interpretation of Vallco zoning? By doing nothing, you are giving the developer by-right allocation of 2400 units at Vallco.

If the new pro-housing laws will change the zoning or the interpretation of zoning at Vallco, it is the obligation of the City to inform the citizens of the change. The city should be upfront about the change and inform the citizens with a clear explanation.

The city allocated 2 million square feet of office space to Vallco,with the understanding that it is pending a Vallco Specific Plan to be approved by the City Council after a community engagement process. That process has just started. However, AB 1515 would seem to turn the conditional allocation of 2 million square feet of office space into a free handout. The City won't have any power to reduced the office space or negotiate for more benefits for the community without risking legal challenges.

Under the new pro-housing laws, the conditional allocation of 2 million square feet of office space will be turned into by-right allocation. The city should be upfront about the change and inform the citizens with a clear explanation.

The new pro-housing laws are meant to streamline the process of project approval. It was not meant to and should not be used to "increase" the density of any site, beyond what the City Council had planned in the General Plan.

The Council allocated 389 units to Vallco site in December 2014. Should your decision be respected, by the developer and the state legislature?

Even if the area needs more housing, it should be the City Council's decision whether to increase the density at any Cupertino site. Not that of any outside forces. Not as unintended consequences of new pro-housing laws.

2400 units is more than 6 times the allocated amount. The Council should not be pushed to accept such large amount of increase only because the pro-housing laws attempt to ignore standards set by Cupertino City Council. If the "max unit allocation" is ignored, Cupertino can adopt other objective standards like floor-area-ratio as a density standard, as many other cities have done.

Whatever you decide to do. Please keep the citizens informed of the new interpretation of zoning standards at Vallco as soon as possible.

Sincerely,

Liang Chao

Cupertino Citizen of 19 years

Liang - Objective Standards on Air Quality, Noise and Stormwater, etc.

From: Liang C
Date: Tue, Nov 28, 2017 at 12:08 PM
Subject: Objective Standards on Air Quality, Noise and Stormwater, etc.
To: City Council <citycouncil@cupertino.org>, "City of Cupertino Planning Dept." <planning@cupertino.org>, David Brandt <davidb@cupertino.org>

Dear City Council Members and Planning Staff,

What we learned from the Nov. 27 study session on housing bills is that "objective standards" are the only things that the court might use to judge whether a project comply with the General Plan.

Without "objective standards", any policy in the General Plan is useless as if the policy doesn't even exist.

Even though significant impacts on health and safety might be grounds to deny a project, it is very hard to provide evidence to qualtify such impacts.

So, we should start to identify policies that require "objective standards".

I took a cursory look at pollution related policies. I found these "general" policies without "objective standards",.

Air Quality:

GOAL ES-4: Maintain healthy air quality levels

Policy ES-4.1: New Development. Minimize the air quality impacts of new development projects and air quality impacts that affect new development.

Strategy ES-4.1.1: Toxic Air Contaminants. Continue to review projects for potential generation of toxic air contaminants at the time of approval and confer with Bay Area Air Quality Management District on controls needed if impacts are uncertain.

Strategy ES-4.1.2: Dust Control. Continue to require water application to non-polluting dust control measures during demolition and the duration of the construction period.

Strategy ES-4.1.3: Planning. Ensure that land use and transportation plans support air quality goals.

Policy ES-4.2: Existing Development. Minimize the air quality impacts of existing development.

Water and Stormwater:

Policy ES-7.3: Pollution and Flow Impacts. Ensure that surface and groundwater quality impacts are reduced through development review and volunteer efforts.

Strategy ES-7.3.1: Development Review. Require LID designs such as vegetated stormwater treatment systems and green infrastructure to mitigate pollutant loads and flows.

Strategy ES-7.4.3: Development. Review development plans to ensure that projects are examined in the context of impacts on the entire watershed.

GOAL INF-4: Implement best practices in stormwater management to reduce demand on the stormwater network, reduce soil erosion, and reduce pollution into reservoirs and the bay
Stormwater planning and funding
Policy INF-4.1: Planning and Management. Create plans and operational policies to develop and maintain an effective and efficient stormwater system.
Strategy INF-4.1.1: Management. Reduce the demand on storm drain capacity through implementation of programs that meet and even exceed on-site drainage requirements.
Strategy INF-4.1.2: Infrastructure. Develop a Capital Improvement Program (CIP) for the City’s storm drain infrastructure that meets the current and future needs of the community.
Strategy INF-4.1.3: Maintenance. Ensure that City’s storm drain infrastructure is appropriately maintained to reduce flood hazards through implementation of best practices.
Policy INF-4.2: Funding. Develop permanent sources of funding storm water infrastructure construction and maintenance.
Strategy INF-4.2.2: Ongoing Operations. Review other funding strategies to pay for the ongoing operations and maintenance of the storm drain system per State and regional requirements.

Noise:

GOAL HS-8: Minimize noise impacts on the community and maintain a compatible noise environment for existing and future land uses

Policy HS-8.1: Land Use Decision Evaluation. Use the Land Use Compatibility for Community Noise Environments chart, the Future Noise Contour Map (see Figure D-1 in Appendix D) and the City Municipal Code to evaluate land use decisions.

Policy HS-8.2: Building and Site Design. Minimize noise impacts through appropriate building and site design.

Strategy HS-8.2.1: Commercial Delivery Areas. Locate delivery areas for new commercial and industrial developments away from existing or planned homes.

Strategy HS-8.2.2: Noise Control Techniques. Require analysis and implementation of techniques to control the effects of noise from industrial equipment and processes for projects near low-intensity residential uses.

Strategy HS-8.2.3: Sound Wall Requirements. Exercise discretion in requiring sound walls to be sure that all other measures of noise control have been explored and that the sound wall blends with the neighborhood. Sound walls should be designed and landscaped to fit into the environment.

Policy HS-8.3: Construction and Maintenance Activities. Regulate construction and maintenance activities. Establish and enforce reasonable allowable periods of the day, during weekdays, weekends and holidays for construction activities. Require construction contractors to use the best available technology to minimize excessive noise and vibration from construction equipment such as pile drivers, jack hammers, and vibratory rollers.

Policy HS-8.5: Neighborhoods. Review residents’ needs for convenience and safety and prioritize them over the convenient movement of commute or through traffic where practical.

Strategy HS-8.6.1: Local Improvement. Modify street design to minimize noise impact to neighbors.

Policy LU-27.7: Protection. Protect residential neighborhoods from noise, traffic, light and visually intrusive effects from more intense development with landscape buffers, site design, setbacks and other appropriate measures.

Protection of Neighborhoods:

Strategy LU-27.1.1: Regulations. Maintain and update design regulations and guidelines for single-family development that address neighborhood compatibility and visual and privacy impacts.

Policy LU-13.7: Neighborhood buffers. Consider buffers such as setbacks, landscaping and/or building transitions to buffer abutting single-family residential areas from visual and noise impacts.

Strategy LU-27.1.4: Late Night Uses. Discourage late- evening entertainment activities such as night-clubs in commercial areas where parcels are especially narrow, abut single-family residential development, and cannot adequately provide visual and noise buffers.

---------- Forwarded message ----------
From: Liang-Fang Chao <lfchao@gmail.com>
Date: Tue, Nov 28, 2017 at 12:18 PM
Subject: Fwd: Objective Standards on Air Quality, Noise and Stormwater, etc.
To: City Council <citycouncil@cupertino.org>, "City of Cupertino Planning Dept." <planning@cupertino.org>, David Brandt <davidb@cupertino.org>

Dear City Council Members and Planning Staff,

I found something worth looking into. The 2014 General Plan removed some policies with the reasons that they will be "considered through environmental review per CEQA."

But CEQA is not a part of the General Plan. And CEQA usually only identifies impacts without setting an "objective standards" for these impacts as a criterion for project approval.

In some cases, previous "objective standards" are removed from the General Plan to defer to CEQA review.

EIR usually identify mitigation measures for certain impacts, but there is no obligation for the project applicant to implement any of those measures. Perhaps, the General Plan should state that the mitigation measures identified have to be implemented.

If the General Plan sets a tighter standard, the project applicant can always request an exception, at the discretion of the City Council. However, if the General Plan sets no standard or vague or loose standards, the Council would have no say on whether or not mitigations identified by the EIR would be implemented or not.

In the comparison table between 2014 GP and the 2005 GP, the staff added such notes:

"Air quality and noise impacts already considered through environmental review per CEQA. Refer to outreach for education."
(Archaeologically Sensitive Areas) "Removed because redundant and has specific requirements per California Environmental Quality Act (CEQA)"

"Air quality and noise impacts already considered through environmental review per CEQA. Refer to outreach for education."

(Geotechnical and Structural Analysis) "Portions implemented through the CEQA process."

Below is an example where objective standards, which used to be in 2005 General Plan, were removed from the 2014 General Plan.

In 2005 General Plan, I see specific measurements for noise.

Noise Monitoring
In order to characterize the noise environment in Cupertino, existing noise conditions
in Cupertino were measured at six locations for a period of twenty-four hours. The
following Table, 6-E, summarizes each measurement’s location and corresponding CNEL value.

Very detailed standards is listed in Page 35-36, Chapter 6 of 2005 GP:

https://app.box.com/s/mdod3ou8qah58w6svj8sv6ogceditbtx

Policy 6-50: Land Use Decision
Evaluation
Use the Land Use Compatibility for
Community Noise Environments chartand the City Municipal Code to evaluate
land use decisions.

The "objective standards" on noise level was in 2005 General Plan, but it was completely removed in the 2014 GP.

Tara - A Clear Standard for Community Benefits

From: Tara S
Date: Tue, Nov 21, 2017 at 11:28 AM
Subject: A Clear Standard for Community Benefits
To: citycouncil@cupertino.org

Hello Mayor and Councilmembers,

I write to you today requesting that the City of Cupertino adopt a Resolution or Ordinance establishing a more precise standard for its “Community Benefit Agreements”. These standards should be clearly stated in Cupertino’s General Plan.

A Community Benefits Ordinance would include different requirements for large-scale and small scale projects.

What should be in a Community Benefits Ordinance?

A significant community benefit is defined as a contribution to the broader community, either physically constructed or a monetary contribution to the City,

This Ordinance should:

•             Define benefits expected of developments

•             Require Community Benefits Packages be at the highest level that the project can financially support based on an independent economic analysis

•             Require that developers say earlier on in the process whether their proposed package of Significant Community Benefits will be included on site or made as payments to the City

•             Define mitigations in contrast to community benefits

•             Require that mitigation payment be made no later than the issuance of a building permit

•             Expand the Significant Community Benefits standards to apply to all projects that have not yet received final approval

•             Mandate that the Planning Commission must have at least one public hearing on each proposed Community Benefits Package

•             Clarify that the failure to comply with an agreed upon Significant Community Benefits Package would result in the revocation of permits and that any changes that add value to the project should be reflected in an updated Community Benefits Package

What are Community Benefits?

A community benefit agreement (CBA) is an agreement between a prospective developer and organized representatives of communities affected by a prospective development. A CBA specifies the benefits that the developer will provide to the community in exchange for approval of development. We ask the City of Cupertino to create precise standards for Community Benefits Agreements on small-scale and large-scale projects that will be reflected in the Cupertino Municipal Code and Cupertino General Plan.

Why Should We Develop A Community Benefits Ordinance?

The goal of a Community Benefits Ordinance is to streamline the process of incorporating community benefits into a prospective development.

“Commitments to provide community benefits often go unfulfilled. Difficulties in monitoring and enforcement are a widespread problem. CBAs are an attempt to address this problem, both by memorializing developer commitments in writing and by enabling community groups to enforce them, rather than having to rely on local governments.” (http://juliangross.net/docs/CBA_Handbook.pdf)

Base Benefits that should be addressed in this Ordinance:

a.            Affordable Housing. Either (1) additional on-site affordable housing that exceeds standard requirements; or (2) affordable housing fees that exceed standard City requirements.

b.            Labor Requirements. Agree to enter into a Project Labor Agreement. The City can also require a certain percentage of the project’s construction workers be local or Santa Clara County residents.

Additional Community Benefits that can be addressed in this Ordinance:

a.            Arts and Culture. On-site or off-site benefits for arts and culture, including publically accessible art or performance space or an in-lieu fee to a Cupertino Public Art Fund.

b.            Street and Open Space Requirements

•             Transportation mitigations

•             Improving bicycle networks

•             Permeable street paving

•             Tree plantings

•             Pedestrian amenities

c.             Sustainable Development. Environmentally friendly community benefits beyond what is currently required, such as, but not limited to:

•             Higher green building standards

•             Water and wastewater infrastructure repair and reinvestment

•             Waste diversion

•             Rainwater re-use

•             GreenTRIP certification (http://www.transformca.org/landing-page/greentrip-certification-program)

6.            Alternate Community Benefits Proposals. In the event an applicant believes that compliance with the foregoing community benefits standards would violate any state or federal law or constitutional provision, an applicant may make an alternative proposal.

--

Thank you,

Tara S

Liang - Does Cupertino's General Plan set clear and precise objective standards?

From: Liang C
Date: Mon, Nov 27, 2017 at 4:07 PM
Subject: Does Cupertino's General Plan set clear and precise objective standards?
To: City Council <citycouncil@cupertino.org>, "City of Cupertino Planning Dept." <planning@cupertino.org>, David Brandt <davidb@cupertino.org>

Some of the new housing laws are written with the assumption that the General Plan sets a clear and precise objective standards; therefore, a project that comply with the General Plan could be approved without adverse impacts on its neighborhoods.

But, does Cupertino's General Plan set clear and precise objective standards?

Page 2 of  The Goldfarb Lipman memo states

• "Standards in the City's General Plan override any inconsistent zoning or design review standards."
• "A project is also consistent if it complies with the maximum density for the site, plus a density bonus, even if the City established a lower unit allocation for the site."

In the past, the General Plan sets a more loose standard for a general area and the the Municipal Code sets a tighter standard for specific zoning.

For example, for R2i zone, the max building height is 18 feet; however, the General Plan sets the building height for all "Neighborhoods" as 30 feet. Does that mean the area with a height limit of 18 feet is now inconsistent with the General Plan? Thus, 30 feet applies?

Whether or not SB 35 is likely to be applied to any project in Cupertino, the General Plan should use languages that do not allow unintentional holes that might be taken advantage of.

Should we examine the General Plan policies to find out these inconsistencies?

Or maybe we can add some text in the General Plan that specifies that in case of inconsistency, the Municipal Code applies so that the intent of the Municipal Code is not lost.

I understand that SB 35 may not apply to R1 or R2 at this point. But there might be similar inconsistencies and SB 35 would ignore standards in the Municipal Code.

As suggested by the The Goldfarb Lipman memo:

• "The City may want to review its development standards to ensure that they include objective criteria for evaluating housing projects. The City may also want to develop checklists of applicable standards to use when evaluating applications to help respond within the mandatory timeframes."

Here are some examples of policies that require an objective standards:

POLICY LU-1.5: COMMUNITY HEALTH THROUGH LAND USE: Promote community health through land use and design.

=> What's the meaning of such obscure policy? Does that mean no housing development near freeways?

POLICY LU-1.6: JOBS/HOUSING BALANCE: Strive for a more balanced ratio of
jobs and housing units.

=> What's the intention of such policy? What's considered "balanced"? What's the goal we are thriving for? What "objective standards" are there?

RPC-2.1.1: Dedication of Parkland.
New developments, in areas where parkland deficiencies have been identified, should be required to dedicate parkland rather than paying in-lieu fees.

=> Can this be enforced? Should it use stronger language, such as "shall"?

     Marina and Hamptons do not seem to follow this policy?

Question: Would rooftop park be counted as "parkland" or only ground-level parkland count?

Before the city has a standard to ensure the safety and sustainability of rooftop park, perhaps the rooftop parkland should not be allowed and the General Plan should state it clearly.

Or specify that rooftop parkland is only allowed with city council approval.

POLICY LU-1.3: LAND USE IN ALL CITYWIDE MIXED-USE DISTRICTS
Encourage land uses that support the activity and character of mixed-use
districts and economic goals.

=> What does this policy mean? Where is the objective standards to implement this policy? Some cities specify a minimum percentage of retail space for mixed use projects to ensure economic goals of the city.

STRATEGIES: LU-1.3.1: Commercial and Residential
Uses.
Review the placement of commercial and residential uses based on the following criteria:
1. All mixed-use areas with commercial zoning will require retail as a substantial component. The North De Anza Special Area is an exception.

=> Is STRATEGIES: LU-1.3.1 enforceable under the new housing bills? What does "a substantial component" mean? Is 16% substantial?

=> What does this policy mean? Where is the objective standards to implement this policy? Some cities specify a minimum percentage of retail space for mixed use projects to ensure economic goals of the city.

"Character" is used in many places in the General Plan without specific policies to specify the "character".

Liang

Liang - What are "Objective Standards"? - questions on housing bills

---------- Forwarded message ----------
From: Liang C
Date: Mon, Nov 27, 2017 at 12:52 PM
Subject: What are "Objective Standards"? - questions on housing bills
To: City Council <citycouncil@cupertino.org>, "City of Cupertino Planning Dept." <planning@cupertino.org>, David Brandt <davidb@cupertino.org>

Dear City Council Members and Planning Staff,

Please clarify what are the "object standards", in the worst case when a developer submits a project proposal that the developer's attorney argues that the proposal complies with the General Plan, while the City might disagree.

The relevant sections from the memo by Goldfarb and Lipman are included. I summarize the interpretation and implication of these segments below.

Segment A: If a housing project complies with all "objective standards", the city may not deny the application or reduce the density.

Segment B: Under SB 35, a project only needs to satisfy the maximum density, such as units/acre, and the "maximum unit allocation would be ignored.

Segment C: The court might interpret "objective standards" as the maximum allowed density and ignore "max unit allocation" to follow SB 35, even though such interpretation in SB 35 only applies to projects qualified for streamlining.

Segment D: The court will now deem a project consistent with objective standards as long as a project applicant (a reasonable person) provides evidence that the project is consistent. "The project may be found consistent even if the local government has better evidence that the project is inconsistent."

Segment E: If a housing advocacy group or a developer sues the city and win, they are entitled to attorney fees. Thus, it increases the likelihood that housing advocacy groups or a developers will sue. The city will be fined $10,000/unit or up to $50,000 for each housing unit for a project the city denied and then the court forces the city to approve.

Question 1: The city uses "max unit allocation" on sites, such as Vallco, Oaks and other sites. If the court ignores "max unit allocation" as an objective standard, what would that impact projects in Cupertino? The unit-per-acre would be the only object standard used for any housing site?

Question 2: If a site, zoned with residential use, submit a project using the maximum allowed density + density bonus, beyond it's allocated housing unit, would be the city be able to deny such project proposal? In case the city deny such proposal and get challenged in court, would the city be fined $10,000 and up to $50,000 per unit?

Question 3: If the citizens file a referendum on such a project approved by the city or the city put the project proposal on the ballot for the voters to approve or deny, would be court still be able to overturn the voters' decision and put hefty fine on the city?

Question 4: The "provisional allocation" on Vallco Shopping District was approved with the understanding that the citizens and the city council have the final approval power. The intention was that the citizens have the option to reduce the office allocation at the final project approval. With Segment D, the ""provisional" office allocation of 2 million square feet has become an entitlement. The city cannot reject any project proposal at Vallco containing 2 million square feet of office space; otherwise, the court could order the city to comply. What does the city have to ensure that the "provisional" office allocation is indeed "provisional"?

Question 5: With Segment A, B, C and D, Measure D would comply with the General Plan; or a project applicant (a reasonable person) would argue that Measure D comply. In fact, a beefed-up version of Measure D with 2 million square feet of office and 2,400 units of housing units would comply with the General Plan too? Is that the intention of the General Plan approved by the City Council? If not, how can we clarify the language in the General Plan so that the intention is clear?

((51 acres + 35 unit/acre) * (1.35) = 2400 units for 35% density bonus.)

Question 6: The General Plan needs to set standards for the worst case scenario. After Jan. 1, 2018, Sand Hill can submit a project proposal with 2 million square feet of office and 2,400 units of housing unit, would the city be able to deny the project and have confidence to hold out for the legal challenge that follows? If so, could the city spell out what makes the city's case strong?

(Note that we cannot depend on the developer's good will when making the law. Sand Hill might sell Vallco Shopping District to another developer who might exploit the General Plan to their maximum benefits under the new law.)

Question 7: Without the height or setback limits at Vallco Shopping District, there is no objective standards in the General Plan that defines the "character of Cupertino". The limits were removed with the understanding that the citizens and the city council have the final approval power. The citizens have the option to say that the project doesn't fit the character of Cupertino. But the new housing bills state that only objective standards are respected. Is the intent of the City Council to accept any project at Vallco Shopping District regardless of its heights and setbacks? If not, should the General Plan be amended to provide objective standards, as required by the state laws?

========================

Source: A- Goldfarb Lipman memo

Segment A:

Page 1:

"The Housing Accountability Act states that if a housing development project application complies with all "objective" general plan, zoning, and subdivision standards in effect when the application is deemed complete, the City may not deny the application or reduce the density unless it finds that the project would have a "specific adverse impact" on public health and safety (which is defined so that, as a practical matter, it is a very difficult standard to meet)."

"Although "objective standard" is not defined in the Housing Accountability Act, cases
have found that regulations such as permitted uses, density, height, setbacks, and floor area ratio are "objective," while standards such as "consistent with the community character" or
"suitable for the site" are subjective and cannot be used as the basis to deny or reduce the density
of a housing development project.

Segment B:

Under SB 35 (page 2), for projects qualified for streamlining, "A project is also consistent if it complies with the maximum density for the site, plus a density bonus, even if the City established a lower unit allocation for the site."

Segment C:

On Page 12:

"Definition of "Objective" Standard. The HAA does not define "objective."
However, SB 35 defines an "objective" standard as one that involves "no personal
or subjective judgment by a public official and uniformly verifiable by reference
to an external and uniform benchmark or criterion available and knowable by both
the development applicant… and the public official prior to submittal." Although
SB 35 states that this definition is confined to that statute, courts may reference
this definition in interpreting the HAA."

Segment D:

On Page 13:

"Less Deference to Local Government Findings of Inconsistency. A housing
project "shall" be deemed consistent with applicable standards if there is
substantial evidence that would allow a reasonable person to conclude that the
project is consistent. Currently a local government's finding of either consistency
or inconsistency is upheld unless no reasonable person could agree.

This new standard may make it more difficult for local governments to deny
projects, because if a court finds that evidence of project consistency submitted by
an applicant is reasonable, the project may be found consistent even if the local
government has better evidence that the project is inconsistent. The standard will
also make it more difficult for project opponents to challenge a project as
inconsistent when the local government has found it to be consistent.

Additionally, any findings made to deny a housing project must be supported by a
preponderance of the evidence, which is a less deferential standard of review than
the current substantial evidence standard. Rather than only looking at the city's or
county's evidence to see if it is "substantial," a court will compare the agency's
evidence with the applicant's evidence and determine which is more convincing."

Segment E: Page 13:

"Increased Penalties for Failure to Comply with the HAA. If a local government
improperly denies any housing project, whether market rate or affordable, the
prevailing party in a lawsuit brought under the Housing Accountability Act is
entitled to attorneys' fees. In addition, if a local agency fails to comply with a
court order to approve a project pursuant to the Housing Accountability Act, it
shall be fined a minimum of $10,000 per unit. Penalties can increase to five times
this amount if the local agency fails to comply with a court order, and the court

finds bad faith."

Liang - Opposition Letters from the League of California Cities

From: Liang C
Date: Mon, Nov 27, 2017 at 11:24 AM
Subject: Opposition Letters from the League of California Cities
To: City Council <citycouncil@cupertino.org>, "City of Cupertino Planning Dept." <planning@cupertino.org>, David Brandt <davidb@cupertino.org>

Dear City Council Members and Planning Staff,

I am sure that you are aware that the League of California Cities, which Cuperitno is a member of, supports SB 2, SB 3 and SB 540 and opposes some other housing bills: SB 35, AB 1515, AB 678/SB 167 (same bill), AB 879, AB 72 and AB 1397.

Please pay special attention on the reasons that the League oppose these bills. I wish that the city staff could give the council and the citizens an overview on the reasons that the League opposes these bills, since these bills make the city vulnerable.

The following blog includes quotes from the opposition letters from the League to the Governor Brown to oppose SB 35, AB 1515, AB 678/SB 167 (same bill), AB 879, AB 72 and AB 1397.

The responsibility of the City Council and the City Staff are to look out for the best interest of the City and protect us from exploitation as a result of intended or unintended consequences of these new bills.

Please do not consider these bills from the point of view whether it will impact one project or one developer, but how it will impact all future projects.

Sincerely,

Liang C

Cupertino Resident

League of California Cities Oppose Some Housing Bills - Why? 

On September 29, 2017 Governor Brown signed 15 housing bills into law. These housing bills are outlined here: BroadAffordable Housing Bill Package Signed by Governor, by Meyers and Nave Attorneys.

The League of California Cities supports SB 2, SB 3 and SB 540 and opposes some other housing bills: SB 35, AB 1515, AB 678/SB 167 (same bill), AB 879, AB 72 and AB 1397. Positions taken by the League in August 2017: http://ctweb.capitoltrack.com/public/publish.aspx?id=55380CA4-DB57-4888-8D35-88EED2D1B1C
Search the position of the League for each bill at http://www.cacities.org/Policy-Advocacy/Bill-Search.

In the opposition or request-to-veto letters submitted by the League, it states.
"The League agrees that California is facing a housing supply and affordability crisis. In fact, one of the League’s four strategic goals for 2017 is focused on improving the affordability of workforce housing and securing additional funds for affordable housing. Unfortunately..."

• "SB 35 is not the balanced proposal that is needed to provide meaningful relief from soaring home prices." (From SB 35 Request to Veto Letter)
• "AB 1515 goes too far by allowing a court to select the substantial evidence in the record that it relies on to determine whether a project is consistent with local planning. Local governments are in the best position to determine whether a project is consistent with the adopted general plan and zoning requirements." (From AB 1515 Request to Veto Letter)
• AB 678/SB 167 "would upend longstanding separation of powers principles enshrined in the Constitution rather than address any potential shortcomings in the Housing Accountability Act." (From AB 678 Opposition Letter)
• "AB 879 would essentially require mitigation fees to be substantially reduced without providing other funding for services and infrastructure that are required to serve new development." (From AB 879 Request to Veto Letter)
• AB 72 greatly expand the workload of the Department of Housing and Community Development (Department) by providing it broad and nearly unlimited new authority to review any action by a city or county that it determines is inconsistent with an adopted housing element. (from AB 72 Request to Veto Letter)
• AB 1397 requires prcels on a jurisdiction's Housing Element site list to have “realistic and demonstrated potential” for development during the planning period. For example, parcels in the inventory would be required to have sufficient water, sewer, and dry utilities infrastructure to support housing development or be included in a jurisdiction’s existing general plan program or other mandatory plan – including a public or private utility provider’s plan – to secure sufficient infrastructure to support housing development. (ABAG-MTC Summary of Significant Housing Bills)

Each of these bills attempts to make it easier for the developers to build more housing faster. But at what cost? How will each of these bills affect the operations of the city governments?

SB 35 (Wiener) Affordable Housing: Streamlined Approval Process (Quotes from SB 35 Request to Veto Letter) - applied for some projects that qualify for the streamlined process.

• SB 35 (Wiener) would preempt local discretionary land use authority by making approvals of multifamily developments that meet inadequate criteria, “ministerial” actions. Like similar proposals in the past, this measure would rely on often outdated community plans and would compromise critical project level environmental review, public input, and community integrity.
• SB 35 is not the balanced proposal that is needed to provide meaningful relief from soaring home prices.
• Eliminating opportunities for public review of major multifamily developments goes against the principles of local democracy and public engagement. Public hearings allow members of the community to inform their representatives of their support or concerns. 
• “Streamlining” in the context of SB 35 appears to mean a shortcut around public input. While it may be frustrating for some developers to address neighborhood concerns about traffic, parking and other development impacts, those directly affected by such projects have a right to be heard. Public engagement also often leads to better projects. Not having such outlets will increase public distrust in government and result in additional ballot measures dealing with growth management.
• An applicant must request review under the streamlining provisions. A jurisdiction then has 60 days from submittal (90 days for projects with more than 150 units) to provide the applicant with written notice of any objective development standards that the project does not satisfy and an explanation for the conflict; failure to meet this timeframe results in a project being deemed consistent with such standards. (Recent Developments in CaliforniaHousing Legislation: Summary of 2017 Housing Legislation by Goldfarb and Lipman Attorneys)

AB 1515 (Daly) Housing Accountability Act (Quotes from AB 1515 Request to Veto Letter, except when noted) - Unlike SB 35, these bills affect every housing development application reviewed by local government.

• AB 1515 gives much less deference to local government's findings of consistency with local plans, allowing courts to give just as much weight to an applicant's evidence of consistency. (Law Alert 2017-09-19 Legislature Passes Major Overhaul ofCalifornia Housing Laws by Goldfarb Lipman Attorneys)
• AB 1515 (Daly), which would essentially allow a court to determine whether a project is consistent with local zoning and general plan by selecting the substantial evidence it wishes to rely on rather than reviewing whether the city council relied upon substantial evidence.
• AB 1515 would deviate from longstanding judicial precedent that clearly outlines the role of the city council and the process by which a court may review a local determination.
• The League believes that AB 1515 goes too far by allowing a court to select the substantial evidence in the record that it relies on to determine whether a project is consistent with local planning. Local governments are in the best position to determine whether a project is consistent with the adopted general plan and zoning requirements.
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• This new standard may make it more difficult for local governments to deny projects, because if a court finds that evidence of project consistency submitted by an applicant is reasonable, the project may be found consistent even if the local government has better evidence that the project is inconsistent. The standard will also make it more difficult for project opponents to challenge a project as inconsistent when the local government has found it to be consistent. (Recent Developments in CaliforniaHousing Legislation: Summary of 2017 Housing Legislation by Goldfarb and Lipman Attorneys)

AB 678/SB 167 (Bocanegra) Housing Accountability Act (Quotes from AB 678 Opposition Letter, except when noted)- Unlike SB 35, these bills affect every housing development application reviewed by local government.

• AB 678 (Bocanegra) would, among other things, significantly alter the burden of proof for the denial of a housing project, allow a judge to order the approval of a housing project, and require the imposition of a minimum fine of $10,000 per unit in a denied housing project.
• AB 678 would upend longstanding separation of powers principles enshrined in the Constitution rather than address any potential shortcomings in the Housing Accountability Act.
• AB 678’s application of the clear and convincing evidence standard turns this entire system on its head by asking not whether the city council has an evidentiary basis for how it applied the law to the facts, but whether the facts are as the city council says they are. This inquiry makes no sense when the purpose of an action under section 1094.5 is to challenge the way in which the city council applied the law to the facts.
• Under existing law, if a city council fails to make the necessary findings to deny a project, the court sends the project back to the city council accompanied by an order to comply with the law: either approve the project or deny it with adequate findings. AB 678 further violates the separation of powers clause by allowing the court to order the city council to approve the project whether or not the evidence in the record supports the approval.
• AB 678 and SB 167 (identical bills) require that local government provide developers with a list of any inconsistencies between a proposed project and all local plans, zoning, and standards within 30 to 60 days after the housing application is complete, or the project will be 'deemed consistent' with all local policies (Law Alert 2017-09-19 Legislature Passes Major Overhaul ofCalifornia Housing Laws by Goldfarb Lipman Attorneys)
• "A housing organization shall be entitled to reasonable attorney’s fees and costs if it is the prevailing party in an action to enforce this section." (AB 678 Bill Text)

AB 879 (Grayson) Planning and Zoning Housing Element Reports (Quotes from AB 879 Request to Veto Letter)

• AB 879 would essentially require mitigation fees to be substantially reduced without providing other funding for services and infrastructure that are required to serve new development.
• This measure would also undermine a US Supreme Court decision that requires local infrastructure fees be based on the impact of a project and can only cover the cost of the infrastructure necessary to serve the project.
• While some may insist that local development fees are too high, they are lawfully determined and necessary to fund essential services and infrastructure that are vital to the community. AB 879 could undermine important funding, thus leading to inadequate infrastructure and service delivery.
• Adds substantial analysis to the housing element that won’t produce more housing by requiring the analysis of governmental constraints in the housing element to include any ordinances that directly impact the cost and supply of residential development. All ordinances could be determined to impact the cost of housing including critical ordinances like utility infrastructure such as sewer and water connection fees not under the control of local governments; drought requirements; building and fire code requirements like fire sprinklers; lighting; fencing; and, road and other infrastructure improvements. If there is something of specific concern, that should be addressed directly rather than requiring a review of every single local ordinance. (From Local Government Positions on Housing Bills, by American Planning Association, California Chapter, League of California Cities, Rural County Representatives of California, California State Association of Counties, Urban Counties of California)

AB 72 (Santiago) Housing Element (from AB 72 Request to Veto Letter)

• AB 72 would create more hurdles to housing construction, rather than address any potential shortcomings in the enforcement of existing housing element law, by creating an unnecessary and overly burdensome bureaucratic review process.
• AB 72 empowers the Department to second guess any action taken by a city or county that it determines is inconsistent with a state approved housing element, the Housing Accountability Act, or a number of other housing related laws. This system of second guessing could slow, or even halt, construction of new housing—a tragic result in today’s real estate market.
• The bill authorizes the Department to exercise the unreviewable power to determine whether a city is in violation of state law, free from the burdens of proof and presumptions of validity that courts must apply when reviewing local land use and housing decisions, AB 72 would likely violate the constitutionally enshrined separation of powers.

AB 1397 (Low) Local Planning: Housing Element: Inventory of Land for Residential Development (From AB 1397 Request to Veto Letter)

• AB 1397 would revise the inventory of land suitable for residential development identified in a city’s housing element to include vacant sites and sites that have “realistic and demonstrated potential” for redevelopment to meet a portion of the locality’s housing need for a designated income level.
• AB 1397 abandons the general inventory process and instead require cities to identify land, including vacant sites, that have “realistic and demonstrated potential for redevelopment.” This change requires an analysis that is very difficult to be done since there is no way for a city to determine whether the “potential for redevelopment” is “realistic.” Additionally, if the site is vacant, then it is nearly impossible to evaluate whether the site has "demonstrated potential" for redevelopment.
• AB 1397 places unnecessary restrictions on previously identified housing sites. More specifically, if in the previous housing element, development did not occur on certain sites listed in the inventory, AB 1397 would prohibit the current housing element inventory to include that site unless the site is zoned at Mullin densities and allows 20% affordable to lower income families by-right.

Basically, AB 879 takes away mitigation fees to provide infrastructure and services; thus less funding for the cities.AB 1515 allows the court to determine whether a project complies with local zoning and general plan, instead of the city council; thus less legal power to the cities. AB 678 makes it easier for developers and housing advocacy groups to bring a city to court, while the city is liable for attorney's fees, even for the housing advocacy groups; thus more city funding would be diverted to lawsuits. SB 35 streamlines projects to eliminate opportunities for public review; thus rights of residents affected by these projects are ignored.

These housing bills take away the rights and legal powers of local residents and governments. At the same time, these housing bills require the local governments to meet RHNA Housing Allocation at all income levels, when the local governments are not builders and have no control over development schedules even if projects are already approved.

Who are funding these housing bills?

Here are a subset of those supporting these housing bills.

• California Building Industry Association
• Council of Infill Builders
• aliforniaC Conference of Carpenters
• Los Angeles County Federation of Labor
• Bay Area Council
• California Apartment Association
• California Chamber of Commerce
• California Asian Chamber of Commerce 
• California Asian Pacific Chamber of Commerce
• California Business Properties Association
• Nonprofit Housing Association of Northern California
• Silicon Valley Leadership Group
• YIMBY Action
• San Francisco Housing Action Coalition
• San Francisco Yes-In-My-Back-Yard Party
• California Renters Legal Advocacy and Education Fund
• California Association of Realtors 
• California League of Conservation Voters
• League of Women Voters

A subset of those opposing these bills:

• League of California Cities
• American Planning Association, California Chapter
• California State Association of Counties
• Rural County Representatives of California
• Urban Counties of California
• California State Association of Counties
• Marin County Council of Mayors and Council Members
• The Cities Association of Santa Clara County
• Many individual cities and towns

REFERENCES:

• BroadAffordable Housing Bill Package Signed by Governor, by Meyers and Nave Attorneys
• Law Alert 2017-09-19 Legislature Passes Major Overhaul ofCalifornia Housing Laws, by Goldfarb and Lipman Attorneys
• Local Government Positions on Housing Bills, by American Planning Association, California Chapter, League of California Cities, Rural County Representatives of California, California State Association of Counties, Urban Counties of California
• Recent Developments in CaliforniaHousing Legislation: Summary of 2017 Housing Legislation, by Goldfarb and Lipman Attorneys
• ABAG-MTC Summary of Significant Housing Bills, ABAG and MTC
• SB 35 Request to Veto Letter, by League of California Cities
• AB 1515 Request to Veto Letter, by League of California Cities
• AB 678 Opposition Letter, by League of California Cities
• AB 879 Request to Veto Letter, by League of California Cities
• AB 72 Request to Veto Letter, by League of California Cities

• AB 1397 Request to Veto Letter, by League of California Cities