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Home My WebLink About7/16/2018 Item 2, Ansolabehere �� f;� City Attorney's Office �. �_. _ m � �� _ �. , _ _ ........ m � , _ _ � ' � �N(➢&1�'�a0uod�'i�u��,`y��I...Gsu��ll�o��¢�,G��9��4��-:$�'�d�� k�Q�7 763'�.71�Q� �`` ' skx;ity org MEMORANDUM To: Architectural Review Commission Cc; Michael Codron, Director of Community Development Doug Davidson, Deputy Director Rachel Cohen, Associate Planner From: Jon Ansolabehere, Assistant City Attorney fi� Date: July 13, 2018 Re: 790 Foothill; ARCH-1186-2017 The City's Architectural Review Commission(ARC)considered the above referenced project on May 7, 2018 and is scheduled to re-review the project on July 16, 2018. During the ARC's May 7 hearing, a number of comments and concerns were raised with respect to the interplay between State law, specifically, the Housing Accountability Act ("HAA") and the Density Bonus Law ("DBL"), and the City's Zoning Code and Community Design Guidelines ("CDGs"). The purpose of this memo is to provide some clarity on the legal hierarchy of these land use and planning rules. In short, the City cannot violate State law and it must implement its General Plan, Zoning Code and other planning guidelines, such as the CDGs, consistent with the requirements of State law. Below is a brief discussion on the protections and findings requirements imposed by both the HAA and the DBL. The HAA, Government Code § 65589.5, applies to any"housing development project"which was amended this year to include "[m]ixed-use developments consisting of residential and nonresidential uses with at least two-thirds of the square footage designated for residential use." Government Code § 65589.5(h)(2)(B). The proposed project is a mixed use project where more than two thirds of the project's square footage is devoted to residential use. As such, if the project complies with all applicable ob'ective standards, then certain findings are required in order for the agency to lawfully (1) deny the proj ect; or (2) reduce the proj ect's density. This last year, the State legislature amended the HAA to require that the findings be supported by a preponderance of the evidence in the recard and the agency bears the burden of proof. By design,the legislature has crafted the findings to be difficult for agencies to make. Specifically, in order to deny a HAA project or reduce density, the agency must find that: « � ` '_ [t] e ousing development project would have a ��°'��° �sc��c„�°M�� r��;�� upon the public health or safety unless the project is disapproved or approved upon the condition that the project be developed at a lower density...[and] [t]here is no feasible method to satisfactorily mitigate or avoid the adverse impact..." Gov. Code § 65589.5(j)(1) A "specific, adverse impact" is defined to mean a ".��r�r"��i��r� c�rr��r��r1�� c��c��, and unavoidable impact, based on obiective, identified written public health or safety standards, policies, or conditions as they existed on the date the application was deemed complete." Government Code § 65589.5(j)(1). Accordingly, the ARC may only lawfully deny the project or reduce its density if it determines the project or the additional density causes a specific adverse impact. Standards such as "compatibility" can be lawfully used to impose design conditions,but cannot be used to deny or reduce density. The reason is because the standard of compatibility is subj ective in nature and the HAA requires the specific adverse impact be based on objective health and safety standards. It should be noted that the protections in the HAA and the density bonus provisions in the DBL, discussed below, wark in concert with one another. Specifically, Government Code § 65589.5(j)(3) states that: "...the receipt of a density bonus pursuant to Section 65915 shall not constitute a valid basis on which to find a proposed housing development project is inconsistent,not in compliance, or not in conformity, with an applicable plan,program,policy, ordinance, standard, requirement, or other similar provision specified in this subdivision." In other words,the legislature has determined that the benefits afforded by the DBL do not render the protections in the HAA inapplicable. The DBL, codified in Government Code § 65915, mandates that public agencies provide a density bonus, relax development standards and provide incentives or concessions if a proposed project includes a fixed percentage of affordable housing. The level of the density bonus and the number of incentives or concessions is dependent on the amount of affordable housing provided and the level of affordability. A city cannot require a developer to provide a greater percentage of units or deeper level of affordability in order to qualify for the density bonus prescribed by the statute. See Latinos Unidos del Valle de Napa y Solano v. County of Napa, 7 217 Cal. App. 4th 1160 (2013). For this project, the developer is proposing twelve (12) units to be deed restricted for very low-income households which entitles the developer to a thirty five percent (35%) density bonus and up to three (3) incentives or concessions. On top of this, Gov. Code § 65915(e)(1) mandates that "[i]n no case may a city...apply any development standard that will have the effect of physically precluding the construction of a development meeting the criteria of subdivision(b) at the densities or with the concessions or incentives permitted by this [the DBL]." In other wards, the DBL law requires a city to relax its development standards in order for the project to physically incorporate the additional units. Similar to the HAA, there are protections for projects using the DBL. Government Code §§ 65915(d)(1)(B) and(d)(3)prevent an agency from denying the density bonus or the incentive or concession or refusing to waive or reduce development standards, unless the agency can make a finding based on substantial evidence that the density units,the incentive or concession or the waiver or reduction in a development standard causes a"specific, adverse impact"upon the public health, safety, or the physical environment, and for which there is no feasible Memorandum re 790 Foothill; ARCH-1186-2017 Page 2 of 3 method to satisfactorily mitigate or avoid the specific adverse impact. The definition of "specific, adverse impact" is the same as that in the HAA — i.e. a ".�� r�e�i��r�� c��r�t��"��T�� direct, and unavoidable impact, based on objective, identified written public health or safety standards, policies, or conditions as they existed on the date the application was deemed complete." This project includes two property development concessions — an eight foot (8') maximum height increase for a portion of the building and increase in the allowable lot coverage for the site from seventy five percent (75%) to ninety percent (90%). The stated purpose of these concessions is to allow for the physical construction of the additional density units. In order to deny these concessions, the City would be required to make the required findings based on the standards as discussed and defined above.Again,to use the example noted above,the City cannot simply deny the concessions based on findings that the increase in lot coverage or the height increase is not "compatible" with the neighborhood. Under State law, the City must identify a specific adverse impact on the public health, safety, or the physical environment that is directly caused by the concession, quantify it, and determine that there is no feasible way to satisfactorily mitigate it or find an alternative. Memorandum re 790 Foothill; ARCH-1186-2017 Page 3 of 3