HomeMy WebLinkAboutItem 5k. Authorize the City Manager and Community Development Director to temporarily suspend enforcement of Municipal Code Chapter 8.11 (All-Electric New Buildings) Item 5k
Department: Administration
Cost Center: 1005
For Agenda of: 4/18/2023
Placement: Consent
Estimated Time: N/A
FROM: Christine Dietrick, City Attorney
Prepared By: Chris Read, Sustainability Manager
SUBJECT: ADOPT A RESOLUTION AUTHORIZING THE CITY MANAGER AND THE
COMMUNITY DEVELOPMENT DIRECTOR TO ADMINISTRATIVELY
SUSPEND ENFORCEMENT OF SAN LUIS OBISPO MUNICIPAL CODE
CHAPTER 8.11, CONSISTENT WITH, AND ONLY AS REQUIRED BY,
THE DECISION OF THE NINTH CIRCUIT COURT OF APPEAL RULING
IN CALIFORNIA RESTAURANT ASSOCIATION V. CITY OF BERKELEY
AND ANY SUBSEQUENT JUDICIAL PROCEEDING OR ORDER OF THE
COURT RELATED TO THE TIMING AND APPLICATION OF THE RULING
RECOMMENDATION
1. Approve by a two-thirds vote of the Council the late placement of this item on the
amended public agenda for a vote based on findings, pursuant to Government Code
Section 54954.2(b)(2), that:
a. There is a need to take immediate action to authorize the City Manager and
Community Development Director to implement administrative measures currently
necessary, or as subsequently may become necessary in response to subsequent
judicial actions, to comply with the ruling of the Ninth Circuit Court of Appeal in
California Restaurant Association v. City of Berkeley (Case No. 21-16278); and
b. The need for action came to the attention of the City when the ruling was filed on
April 17, 2023, subsequent to the agenda being posted as specified in subdivision
Section 54954.2 (a).
2. Adopt a Draft Resolution entitled, “A Resolution of the City Council of the City of San
Luis Obispo, California, authorizing the City Manager and the Community
Development Director to administratively suspend enforcement of San Luis Obispo
Municipal Code Chapter 8.11, consistent with, and only as required by, the decision
of the Ninth Circuit Court of Appeal Ruling in California Restaurant Association v. City
of Berkeley and any subsequent judicial proceeding or order of the Court related to
the timing and application of the ruling.”
Page 349 of 829
Item 5k
POLICY CONTEXT
Resolution 11159 (2020 Series) adopts the Climate Action Plan for Community Recovery,
includes the goal of carbon neutrality by 2035, and includes a building sector goal of zero
operational greenhouse gas (GHG) emissions from new buildings.
DISCUSSION
Background
On August 19, 2020, Council approved the City’s Climate Action Plan for Community
Recovery, and adopted Resolution 11159 (2020 Series), which includes the goal of
carbon neutrality by 2035 and a building sector goal of zero operational greenhouse gas
(GHG) emissions from new buildings.
To achieve City Council’s adopted goals for emissions reductions in existing buildings, on
June 16, 2020, Council unanimously approved the Clean Energy Choice Program for New
Buildings (Program). The Program provided local amendments to the California Energy
Code incentivizing all-electric new buildings. The Program concluded on December 31,
2022.
On July 19, 2022, City Council adopted Ordinance No. 1717 updating the Clean Energy
Program for New Buildings to protect public hea lth and safety by requiring all new
buildings to be all-electric in Title 8 (Health and Safety) of the Municipal Code, similar to
the approach taken by several other California cities. The ordinance went into effect on
January 1, 2023.
New Court Ruling
On April 17, 2023, the 9th Circuit District Court of Appeals made a ruling in the case of
California Restaurant Association v. City of Berkeley. The Ninth Circuit found that the City
of Berkeley's ban on installation of natural gas infrastructure was pre-empted by the
federal Energy Policy and Conservation Act (EPCA), holding that EPCA does not permit
localities to prohibit (indirectly or directly) use of natural gas appliances covered by EPCA.
City staff are evaluating the potential implications of this ruling for existing City policy and
are monitoring the next steps that will be taken by the City of Berkeley to determine
whether a stay of the order will be sought and whether a petition for en banc review will
be filed and granted.
In order to provide time for evaluation of the applicability of this particular court ruling
before additional building permits are issued, staff recommends authorizing the City
Manager and Community Development Director to temporarily suspend enforcement of
Chapter 8.11 (All-Electric New Buildings), in consultation with the City Attorney as
necessary to comply with the ruling and/or any subsequent judicial proceedings or orders
that may be or become binding upon other cities. It is recommended that the City Council
provide discretion to the appropriate staff to implement this suspension only to the extent
necessary to comply with legal obligations. At this time, the next steps in the litigation and
the binding nature of the ruling on parties beyond the immediate case partic ipants is
unclear. Nevertheless, the recommendation to authorize suspension of implementation
of the ordinance is appropriate and prudent under the currently fluid circumstances .
Page 350 of 829
Item 5k
Impact on Current Development Applications
The Community Development Department has not issued any permits for new buildings
subject to Chapter 8.11, which went into effect on January 1, 2023. However, staff is
currently reviewing applications for 75 building permits subject to Chapter 8.11 all-electric
requirements. 60 of these permits belong to the San Luis Ranch or Avila Ranch
developments, which are subject to all-electric requirements through pre-existing,
negotiated development agreements.
The remaining 15 building permit applications are for 13 new ADUs, one new multifamily
building (a 4-plex), and one new commercial building (a gas station). Suspension of
enforcement for Chapter 8.11 would allow current applicants to resubmit the same
projects with a mixed-fuel design, should they so choose. All applications pay a plan
check fee at the time of submission prior to reviews beginning to ensure cost recovery for
services. Under the current structure, these applications are not eligible for a refund of
plan check fees since the review process has started. Eight of these applications (Six
ADUs, one Multifamily, and one Commercial) have already been reviewed by a
consultant, and as a result, the city has incurred roughly $30,000 in costs for consultants
performing the plan check. The remaining seven ADU applications are being reviewed in-
house by the Building and Safety team.
Suspension of enforcement of Chapter 8.11 would also allow future permit applications
for new mixed-fuel buildings to start the review process. However, should the decision be
stayed or overturned by the full panel of the Ninth Circuit, and Chapter 8.11 continue to
be implemented, or at some point reinstated following a suspension, building permits for
non-vested projects would be processed based on rules in place at the time of building
permit issuance.
Previous Council or Advisory Body Action
July 19, 2022 – City Council adopted the Clean Energy Program for New Buildings 2022
Program Update.
Public Engagement
Public comment on this item can be provided to the City Council through written
correspondence prior to the meeting and through agenda comments at the meeting.
CONCURRENCE
The City Attorney’s Office concurs with this report.
ENVIRONMENTAL REVIEW
The California Environmental Quality Act does not apply to the recommended action in
this report because the action does not constitute a “Project” under CEQA Guidelines
Sec. 15378.
Page 351 of 829
Item 5k
FISCAL IMPACT
Budgeted: No Budget Year: 2022-23
Funding Identified: No
Fiscal Analysis:
Funding
Sources
Total Budget
Available
Current
Funding
Request
Remaining
Balance
Annual
Ongoing
Cost
General Fund $0 $0 $0 $0
State
Federal
Fees
Other:
Total $0 $0 $0 $0
Suspending enforcement of Chapter 8.11 will result in an additional administrative
burden, which can be supported by existing departmental staff time.
ALTERNATIVES
Given limited situational clarity and information, and pending prospective
additional judicial proceedings, it is staff’s assessment that no reasonable
alternatives exist in the near-term. Staff will return to Council to present additional
information when available.
ATTACHMENTS
A - Draft Resolution authorizing suspension of enforcement of Chapter 8.11 (All-Electric
New Buildings)
B - Ninth Circuit Ruling filed April 17, 2023
Page 352 of 829
R ______
RESOLUTION NO. _____ (2023 SERIES)
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF SAN LUIS
OBISPO AUTHORIZING THE CITY MANAGER AND THE COMMUNITY
DEVELOPMENT DIRECTOR TO ADMINISTRATIVELY SUSPEND
ENFORCEMENT OF SAN LUIS OBISPO MUNICIPAL CODE CHAPTER
8.11, CONSISTENT WITH, AND ONLY AS REQUIRED BY, THE
DECISION OF THE NINTH CIRCUIT COURT OF APPEAL RULING IN
CALIFORNIA RESTAURANT ASSOCIATION V. CITY OF BERKELEY
AND ANY SUBSEQUENT JUDICIAL PROCEEDING OR ORDER OF THE
COURT RELATED TO THE TIMING AND APPLICATION OF THE
RULING
WHEREAS, on July 19, 2022, City Council adopted Ordinance 1717 (2022 Series),
now codified as City of San Luis Obispo Municipal Code Chapter 8.11 (All -Electric New
Buildings); and
WHEREAS, on April 17, 2023 a three-judge panel of the Ninth Circuit Court of
Appeal issued a decision holding that an ordinance of the City of Berkeley with similar
objectives as the City’s ordinance is preempted by the Energy Policy and Conservation
Act of 1975; and
WHEREAS, it has been reported that the City of Berkely may seek en banc review
and that the binding nature of the case on parties other than the litigants has not been
finally resolved.
NOW, THEREFORE, BE IT RESOLVED by the Council of the City of San Luis
Obispo as follows:
SECTION 1. Authorization to Suspended Enforcement. The City Manager and the
Community Development Director shall be authorized to suspend enforcement of City of
San Luis Obispo Municipal Code Chapter 8.11, consistent with, and only as required by,
the decision of the Ninth Circuit Court of Appeal Ruling in California Restaurant
Association v. City of Berkeley and any subsequent judicial proceeding and/or order of
the Court related to the timing and application of the ruling.
Page 353 of 829
Resolution No. _____ (2023 Series) Page 2
R ______
SECTION 2. Notice. Any action by the authorized officials suspending enforcement
of Chapter 8.11 shall be in writing made publicly available for review and posted to the
City’s website, and shall also be provided to affected development applicants in the City
at the time of application, or as otherwise necessary to provide direct notice to applicants
regarding the impacts of such actions on the processing of their applications.
Upon motion of Council Member ___________, seconded by Council Member
___________, and on the following roll call vote:
AYES:
NOES:
ABSENT:
The foregoing resolution was adopted this _____ day of _______________ 2023.
___________________________
Mayor Erica A. Stewart
ATTEST:
______________________
Teresa Purrington
City Clerk
APPROVED AS TO FORM:
______________________
J. Christine Dietrick
City Attorney
IN WITNESS WHEREOF, I have hereunto set my hand and affixed the official seal of the
City of San Luis Obispo, California, on ______________________.
___________________________
Teresa Purrington
City Clerk
Page 354 of 829