HomeMy WebLinkAbout10-18-2016 Item 20, SmallCOUNCILMEETING:
ITEM NO.: 2-0
From: Dietrick, Christine SEP 2 0 20%
Sent: Tuesday, September 20, 2016 2:46 PM
To: Cohen, Rachel L
O CITY CLERK
Cc: Gallagher, Carrie; Goodwin, Heather; Codron, Michael
Subject: 22 Chorro
Attachments: RE: Request for Wording
This is an email exchange I had with a resident on housing development regulation, during the course of which
she specifically asked me about my take on 22 Chorro, 71 Palomar and other projects. Because the exchange
was shared with the Council, I want to make sure it is also part of the public record when those two appeals
are heard. Can you please include the attached correspondence as part of the record for the agenda items
once they are published? Thanks.
Christine Dietrick
City Attorney
- CITY OF
-. Sfln Luis OBISPO
City Attorney's Office
990 Palm Street, San Luis Obispo, CA 93401-3249
E cdietrick@slocity.org
T 805.781.7140
slocity.org
The information contained in this e-mail message is intended only for the CONFIDENTIAL use of the
designated addressee named above. The information transmitted is subject to the attorney-client
privilege and/or represents confidential attorney work product. Recipients should not file copies of
this email with publicly accessible records. If you are not the designated addressee named above or
the authorized agent responsible for delivering it to the designated addressee, you received this
document through inadvertent error and any further review, dissemination, distribution or copying of
this communication by you or anyone else is strictly prohibited. IF YOU RECEIVED THIS
COMMUNICATION IN ERROR, PLEASE NOTIFY US IMMEDIATELY BY TELEPHONING THE SENDER
NAMED ABOVE AT (805) 781-7140. Thank you.
From: Dietrick, Christine
Sent: Monday, August 29, 2016 9:49 AM
To: Camille Small
Subject: RE: Request for Wording
Camille - As a practice, I do not comment on the legality of actions of private parties or other jurisdictions, unless such a
comment is well researched and directly relevant to a City action the Council has directed me to evaluate. My "take" on
all projects is that 1) they need to comply with adopted City policy and regulations and that those regulations and
policies need to comply with state and federal law; 2) our regulations need to be clear enough for development
applicants and the public to understand the standards to which projects are expected to design and the standards
against which projects will be evaluated by our advisory bodies and Council ; and 3) clearly articulated, adopted
standards need to be consistently applied, independent of underlying feelings about applicants or intended residents.
The corollary to that is that project denials need to result from a legally supportable basis in objectively verifiable facts
about the project and adopted City policy. Denials for non-compliance with adopted policy/regulations must be the
analytical focus and must be articulated in the record, again taking into consideration the requirements of state and
federal law. If the Council majority wanted to explore regulations to encourage a particular type of housing, of course, I
would take that direction, research similar work being done in other jurisdictions, and provide the Council with my best
assessment of the legality and risks associated with such an approach and how best to manage those risks, while
achieving their objectives.
The only comment I will make about policy decisions is that I have been a participant in the public process long enough
to know that any time I have felt "certain" that one perspective is accurate and informed and that a particular
conclusion is the "right" one, I am confronted with the fact that there are others in the process that bring different
perspectives and reach different conclusions, based on the same set of facts, about which they are equally certain they
are "right". The Council has to balance all of the passionate perspectives and firmly held beliefs reflected to them from
our very philosophically diverse community, as well as their own experiences and perspectives, in reaching decisions
they believe are in the best interest of the whole City. Clearly, that is not easy job on any issue that sparks the emotion
of the community, but I have consistently been grateful to serve Councils that I believe are genuinely committed to
grappling with the tough decisions and trying to do what is right. As a staff person watching our pubic process, it is
inspiring when the process yields high level, informed, civil debate, where divergent voices are heard and valued; it is
disheartening when the focus becomes personal and aspersions are cast on the character and motives of people who
serve their constituents for little money or glory and with great personal sacrifice.
Beyond that, my feelings about any particular project are not relevant to my role as the City's legal advisor. There are a
range of permissible policy decisions within the boundaries of legal requirements and I leave those decisions to policy
makers, which I unequivocally and gratefully am not!
Take care,
Christine
-----Original Message -----
From: Camille Small [mailto:notetocamille@yahoo.com]
Sent: Friday, August 26, 2016 10:25 PM
To: Dietrick, Christine <cdietrick@slocity.org>
Subject: RE: Request for Wording
Thank You, Christine
All you write explains it well AND is completely understood.
Now, if there is any chance you have time to look .... I thought Santa Barbara built for'Workers' at some point in time in
the not -too -distant past. Is there anything on record?
Keep the wording you sent re: disabled and unemployed going back to school. Obviously those would be among many
'automatic'
exceptions we would include. I thought of those all along without taking time to word them.
On a separate but related note,
What is your take on developments like Icon and the copy -cat ones designed for 71 Palomar and 22 Chorro. They are
specifically built for AND advertised FOR students - - as icon.com shows.
Isn't this discriminatory? Families would need a kitchen, not a kitchenette; a living room big enough for more than a
sofa. And wouldn't there be a place for children to play?
Is this discrimination by design?
Thank You for your thoughts,
Camille Small
On Fri, 8/26/16, Dietrick, Christine <cdietrick@slocity.org> wrote:
Subject: RE: Request for Wording
To: "Camille Small" <
Date: Friday, August 26, 2016, 3:04 PM
Camille — I can't
propose language to you to address the issues you raise below; I can only advise the Council/City as my client and can
only undertake projects at the direction of a majority of the Council. However, I really appreciate the question and,
because I know this is such a recurring issue of concern and one so often raised before the Council and our Advisory
Bodies, I'd like to take the time to share some information from a legal perspective that I hope will be helpful to lending
some context to the advice you frequently hear other staff and me provide to the bodies we serve. Please feel free to
share this information with anyone else who may have the same questions, as I know that there are others often
frustrated by the staff intervention on these issues at public hearings.
In general, laws and governmental actions that are based on the characteristics of a person or group of people and
assumptions about how that person or group will act based on those characteristics are highly legally suspect, if not
patently, facially illegal. It simply would not be legal for the City to attempt to regulate occupancy based on personal
characteristics, such as age or familial status. This is especially true when a government is regulating in the arena of
housing, where state law has created significant statutory rights and incentives favoring the development of housing
and significant restrictions on the ability of local agencies to deny housing development. It is very difficult to conceive
of a way to articulate, in a factually verifiable and legally defensible way, why a student who works part-time, lives in an
apartment and drives a car has a greater impact on a neighborhood or can be presumed to engage in adverse or illegal
behaviors any more than a non -student of the same age who works slightly more than part-time and lives in an
apartment and drives a car, based solely on the distinction between the two individuals' student status. Without such
a rational, factually supportable basis for a restriction or distinction in treatment, the status distinction creates the
facial appearance, if not the reality that the student distinction is a proxy for age or some other protected status and it
is illegal to engage in housing discrimination based on age or protected status, under both state and federal law.
As it relates to the
2
definition you propose below, I understand that you are trying to encourage occupancy of new projects by a particular
type of person that you truly believe would not adversely impact your neighborhood or the community. However, I
would ask you to consider that the definition you propose is based on some assumptions about who the typical student
is, which would preclude occupancy by: a disabled person who was not able to work, but was trying to pursue an
education; an older worker laid off/unemployed and seeking education for job retraining; a widowed or recently
divorced stay-at-home parent, living on limited term support and attending school full-time to try to gain the skills
necessary to support a family; or a retired person interested in simply expanding their academic horizons or pursuing a
second career. Denying such individuals housing opportunities as a result of their employment/student status under
the definition you propose would be illegal under state and federal law for sound and obvious reasons, although I am
sure that is not your intent.
I understand the frustrations
of the neighborhoods and'the tensions that often exist between student aged residents and older residents who feel
negatively impacted by adverse behaviors they associate with student residents. However, as the City Attorney, it
causes me very grave concerns when personal characteristics become a proxy for behaviors and development impacts,
because such "easy solutions" too often result in discriminatory conduct, disparate impacts on protected groups,
unintended consequences, and legal liability. It is always my preference and strong recommendation to try to think
creatively about how we can address legitimate concerns about adverse behaviors, and mitigate impacts (rather than
regulate occupants) of development in our neighborhoods. In my world, and I think in our larger world, the dangers
and blind spots of becoming focused on the personal characteristics of a group of people and assuming we know how
certain people will behave solely based on their personal characteristics are simply too high and not legally defensible.
am always willing to help the Council evaluate creative solutions presented to them to address neighborhood concerns
and I appreciate your continued engagement and thoughtful suggestions on ways to improve the community. These
issues are not easy; after all, if they were, they would already be solved!
Best,
Christine
Christine Dietrick
City Attorney
[City of San Luis
Obispo]
City Attorney's Office
990 Palm Street, San Luis Obispo, CA
93401-3249
E cdietrick@slocity.org
T 805.781.7140
slocity.org<http://www.slocity.org>
The information contained in
this e-mail message is intended only for the CONFIDENTIAL use of the designated addressee named above. The
information transmitted is subject to the attorney-client privilege and/or represents confidential attorney work
product. Recipients should not file copies of this email with publicly accessible records. If you are not the designated
addressee named above or the authorized agent responsible for delivering it to the designated addressee, you received
this document through inadvertent error and any further review, dissemination, distribution or copying of this
communication by you or anyone else is strictly prohibited. IF YOU RECEIVED THIS COMMUNICATION IN ERROR,
PLEASE NOTIFY US IMMEDIATELY BY TELEPHONING THE SENDER NAMED ABOVE AT (805) 781-7140. Thank you.
C
From: Camille
Small [
Sent: Tuesday, August 23, 2016 2:28 AM
To: Dietrick, Christine <cdietrick@slocity.org>
Subject: Request for Wording
Hello,
When you have a moment, could you please consider wording that would allow developers to build for young
professionals and other working individuals.
single or married with or
without children.
We fear
these days that developers are most interested in building for young students because they can charge exorbitant
rates for group living.
You may be very aware the term
"Workforce" has been used deceptively.
Developer Belcher used it on Grand Ave. (while he was actively advertising on his website for "student rentals")
Perhaps a qualifying
definition. "Person or persons who can provide proof of greater than half-time employment who will not be enrolled
in a college or university for more than one class per quarter or semester."
Some working adults take a class or two on occasion but would likely not be a full time student. The intent of
'workforce' is working adults and not young students with just part-time jobs.
We must be able to define them if we "need to build for them" !
Thank you for your thoughts,
Camille Small
4