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HomeMy WebLinkAbout7/16/2018 Item 2, Lopes Purrington, Teresa From:James Lopes <jameslopes@charter.net> Sent:Sunday, July 15, 2018 7:54 PM To:Advisory Bodies Cc:Davidson, Doug; Cohen, Rachel Subject:ARC Item 2 - 790 Foothill Attachments:Lopes - ARC hrg 7-16-18 Item 2 - 790 Foothill.pdf; California Code, Government Code - GOV § 65589.5 _ FindLaw.pdf Architectural Review Commission City of San Luis Obispo RE: July 16, 2018 ARC hearing - item 2: 790 Foothill Dear Chairperson Root and Commissioners: Would you please read the attached letter concerning item 2 - 790 Foothill? I have attached the Housing Accountability Act to assist in your consideration. Thank you so much. James Lopes, AICP On 5/7/2018 12:52 PM, James Lopes wrote: Architectural Review Commission City of San Luis Obispo Dear Chairperson Root and Commissioners: RE: 790 Foothill I ask that you continue this item indefinitely with direction for the applicant to redesign the project to be consistent with the Conservation and Open Space Element, eliminate the dual bedrooms scheme, and to conduct a traffic study that shows what scale of project can be accommodated safely on surrounding streets and sidewalks. I wish to make a few points about this project and your review: 1. Discretion: The staff comments about the Housing Accountability Act in paragraph 3.4 miss the point that the ARC and City have the discretion to direct design changes as long as the project's ability to provide the requested affordable units is feasible. In such a large project as this, the cost factors of making architectural changes are insignificant when compared with the subsidy costs and marginal cost of renting or selling affordable units, versus their retail cost/price. As written in the staff report, the City has wide design review discretion. 2. Views of the Hills. The staff missed a major point in the Community Design Guidelines, 3.1.C.1.d - Opportunities to preserve or enhance views of the hills. This section asks that your Commission ensure that the project will show consideration for opportunities to preserve or enhance views 1 of the hills, which in this case is primarily Bishop Peak. Foothill Boulevard is listed as a street with Moderate scenic value in the Conservation and Open Space Element, Figure 11. This listing is not done lightly; the rating is obviously a compromise with the reality of an outstanding view of Bishop Peak through the project site. The project would block almost the entire view of Bishop Peak. The project will block views of Bishop Peak and other peaks from surrounding development. The COSE includes these very important policies which should initiate a CEQA Initial Study:  COSE POLICY 9.2.1. Views to and from public places, including scenic roadways. The City will preserve and improve views of important scenic resources from public places, and encourage other agencies with jurisdiction to do so. Public places include parks, plazas, the grounds of civic buildings, streets and roads, and publicly accessible open space. In particular, the route segments shown in Figure 11 are designated as scenic roadways.  A. Development projects shall not wall off scenic roadways and block views  COSE POLICY 9.2.2. Views to and from private development. Projects should incorporate as amenities views from and within private development sites. Private development designs should cause the least view blockage for neighboring property that allows project objectives to be met. COSE PROGRAM 9.3.4: Environmental and architectural review. Conduct environmental review and architectural review consistent with General Plan goals and policies regarding visual impacts and quality.  COSE PROGRAM 9.3.5: Visual assessments. Require evaluations (accurate visual simulations) for projects affecting important scenic resources and views from public places.  COSE PROGRAM 9.3.6: View blockage along scenic highways. Determine that view blockage along scenic roadways is a significant impact. The project should be redesigned with fewer units and a lower profile on at least half of of the site, to at least "preserve" public views of Bishop Peak through at least half of the site. The project will still be feasible, although perhaps with one or two fewer affordable units, at the low percentage ratio offered. The City is giving away the public's view of Bishop Peak perhaps unwittingly, and careful attention to the adopted COSE, CEQA and the limitation of the current CEQA exemption is called for. 3. Traffic Danger and Accidents. The comments of Allan Cooper are revealing that accident records are high within the two intersections of Foothill with Broad and Chorro Streets. A traffic study should have been required by staff; it is now up to you to have staff analyze the accident data against the projected city traffic plus project traffic through this complicated set of intersections. 4. Parking Demand. The project is not designed honestly; everyone who has delved into the floor plans knows this. Each of the long bedrooms will be partitioned into two bedrooms. There will be as much as twice the occupants, and vehicles, as proposed. The staff have not grappled with this design ploy with any positive results. It is up to your Commission to magnify your attention onto these bedrooms and direct the design to be altered to conventional bedrooms with no feasible way to partition them. This may mean reduction in floor area in each bedroom, or changing to single doors and moving their locations. 5. CEQA Exemption. The Threshold Requirements for a Residential Exemption in Section 15192, state that a project must be consistent with a general plan. and any mitigation measures of the 2 applicable plan. In this case, the project is not consistent with the COSE policies stated above. The project This is a complicated project. Don't let the simplified approach by City staff make you think that this project will be inconsequential or have few impacts. I ask that you continue this item indefinitely with direction for the applicant to redesign the project to be consistent with the Conservation and Open Space Element, eliminate the dual bedrooms scheme, and to conduct a traffic study that shows what scale of project can be accommodated safely on surrounding streets and sidewalks. If streets are considered utilities in CEQA, then the unsafe traffic conditions on Foothill Boulevard, etc., which are recorded, indicate that the project is not exempt from the threshold requirement that the site can be adequately served by existing utilities. Thank you. James Lopes, AICP 3 1 912 Bluebell Way San Luis Obispo, California 93401 July 15, 2018 Architectural Review Commission City of San Luis Obispo RE: ARC July 15, 2018 Hearing Item 2: 790 Foothill Boulevard Dear Chairperson Root and Commissioners: At the May 7, 2018 hearing on this item, I sent you an email and spoke about the need to implement policies in the Conservation and Ope n Space Elemen t to retain views of Bishop Peak on Foothill Boulevard. I have similar and more detailed comments about the revised design and staff’s recommendation. STATE LAW It would help you if you had a copy of the Housing Accountability Act (HAA), which I have attached with highlighted text. As I stated on May 7, 2018, the HAA allows the City to require changes to a project in order to conform to the General Plan and zoning and design standards. But, if the City denies the project or any of the affordable units are made infeasible by conditions of approval, then one of several findings is required. See Government Code Section 65589.5 (d) inclusive, attached. This policy is repeated in more detail in Section 65589.5(i). The staff has not supported the fact that the ARC and City have the discretion to direct design changes as long as the project's ability to provide the requested units is feasible. The question of feasibility is a technical one which an applicant should answer with a financial pro forma, not an off -the-cuff comment at the hearing. Feasibility does not mean that the proposed size of units is necessary. CONSERVATION AND OPEN SPACE ELEMENT The project still does not conform to the Conservation and Open Space Element (COSE) of the General Plan. Staff has provided no analysis of this non-conformity even though I provided detailed policy quotes and observations for the previous hearing. Again, the project will objectively block views of Bishop Peak from Foothill Boulevard, in regards to the following policies: 1. Foothill Boulevard and Chorro Street are identified as streets with Moderate scenic value in the Conservation and Open Space Element, Figure 11, within the project frontage and vicinity. 2 2. Foothill Boulevard and Chorro Street provide public views from vehicle, pedestrian and bicycle traffic of Bishop Peak, one of the famous Morros addressed and protected by the COSE. Figure 1. Bishop Peak from southeast corner of Foothill Boulevard and Chorro Street Foothill Boulevard and Chorro Street 3 3. The project will block views partly and fully of Bishop Peak, as shown below in Figure 2 from Foothill Boulevard and Chorro Street intersection. Current building heights are perhaps 15 feet. Proposed heights vary, up to 43 feet. 4. COSE policy 9.2.1.A , states that “Development projects shall not wall off scenic roadways and block views.” The COSE policy should not be met by leaving just the top 10 to 30% of the view. The view will be maintained by obscuring only a minor part of it, such as 10 to 30% blockage of the bottom slopes. A Figure 2. View from northeast corner of Foothill and Chorro 5. COSE PROGRAM 9.3.4: Environmental and architectural review. Conduct environmental review and architectural review consistent with General Plan goals and policies regarding visual impacts and quality. The COSE requires the ARC to conduct architectural review explicitly oriented to conform the project with the COSE policies in this matter. 6. PROGRAM 9.3.5: Visual assessments. Require evaluations (accurate visual simulations) for projects affecting important scenic resources and views from public places. The COSE requires that the ARC require accurate visual simulations concerning the loss of views to Bishop Peak, and perhaps San Luis Mountain on Chorro Street. 7. COSE PROGRAM 9.3.6: View blockage along scenic highways. Determine that view blockage along scenic roadways is a significant impact. The COSE policy may affect and negate the proposed Categorical Exemption from CEQA due to this impact. It may require that an Initial Study be conducted to determine the degree of Approximate height of only a second story at the Blackhorse location, as seen from the intersection. More than 60% of the view appears to be blocked. 4 view blockage and recommend mitigations to reduce the view blockage to insignificance, or prepare an environmental impact report if suitable measures cannot be implement, and develop project alternatives to the proposal which retain or achieve insignificant impacts. Design changes should be made to reduce the building heights dramatically at the location of the Blackhorse Coffee House and the former McDonalds. Large-scale, unmistakable framed views of Bishop Peak and perhaps San Luis Mountain (as seen from Chorro Street) should be the minimum to consider at least at and near the intersection of Foothill and Chorro. Such changes that are needed to conform to the COSE of the General Plan may reduce the number of units. However, the proposed units are large, and the size of the bedrooms could be cut approximately in half to provide the same number of tenants and units. However, it is paramount that the ARC require that traffic safety impact information be provided to determine the level of traffic hazards and accidents on the subject segments of Foothill and Chorro. It may well be that the traffic conditions themselves may be bad enough to justify a reduction in the density (number) of units. Such a determination is allowed by the HAA to either deny the project or reduce the proposed number of units. My earlier May 7, 2018 comments still stand concerning the potential and likely doubling of the number of bedrooms. Such a design feature as proposed should be estimated for its potential parking and traffic demands, and included in the traffic safety study that is needed to fully identify if the project should be approved, denied or reduced in scope. Sincerely, James Lopes, AICP California Code, Government Code - GOV § 65589.5 | FindLaw file:///C/Users/Lopes/Documents/3-Issues - SLO/790 Foothill Dr/California Code, Government Code - GOV § 65589.5 _ FindLaw.html[7/14/2018 9:17:49 PM] CASES & CODES PRACTICE MANAGEMENT JOBS & CAREERS NEWSLETTERS BLOGS LAW TECHNOLOGY Not a Legal Professional? Visit our consumer site Register | Login LAX to Kauai Isl Flights Round Trip $292.55 BOOK NOW SAN to Kauai Isl Flights Round Trip $332.40 BOOK NOW LAX to Kauai Isl Flights Round Trip $292.55 BOOK NOW SAN to Kauai Isl Flights Round Trip $332.40 BOOK NOW Forms Lawyer Marketing Corporate Counsel Law Students JusticeMail Reference FindLaw Codes California Government Code - GOV § 65589.5 « Prev Next » California Code, Government Code - GOV § 65589.5 Search California Codes (a)(1) The Legislature finds and declares all of the following: (A) The lack of housing, including emergency shelters, is a critical problem that threatens the economic, environmental, and social quality of life in California. (B) California housing has become the most expensive in the nation.  The excessive cost of the state's housing supply is partially caused by activities and policies of many local governments that limit the approval of housing, increase the cost of land for housing, and require that high fees and exactions be paid by producers of housing. (C) Among the consequences of those actions are discrimination against low-income and minority households, lack of housing to support employment growth, imbalance in jobs and housing, reduced mobility, urban sprawl, excessive commuting, and air quality deterioration. (D) Many local governments do not give adequate attention to the economic, environmental, and social costs of decisions that result in disapproval of housing development projects, reduction in density of housing projects, and excessive standards for housing development projects. (2) In enacting the amendments made to this section by the act adding this paragraph, the Legislature 0 2 Search by Keyword or Citation California Code, Government Code - GOV § 65589.5 | FindLaw file:///C/Users/Lopes/Documents/3-Issues - SLO/790 Foothill Dr/California Code, Government Code - GOV § 65589.5 _ FindLaw.html[7/14/2018 9:17:49 PM] further finds and declares the following: (A) California has a housing supply and affordability crisis of historic proportions.  The consequences of failing to effectively and aggressively confront this crisis are hurting millions of Californians, robbing future generations of the chance to call California home, stifling economic opportunities for workers and businesses, worsening poverty and homelessness, and undermining the state's environmental and climate objectives. (B) While the causes of this crisis are multiple and complex, the absence of meaningful and effective policy reforms to significantly enhance the approval and supply of housing affordable to Californians of all income levels is a key factor. (C) The crisis has grown so acute in California that supply, demand, and affordability fundamentals are characterized in the negative:  underserved demands, constrained supply, and protracted unaffordability. (D) According to reports and data, California has accumulated an unmet housing backlog of nearly 2,000,000 units and must provide for at least 180,000 new units annually to keep pace with growth through 2025. (E) California's overall homeownership rate is at its lowest level since the 1940s.  The state ranks 49th out of the 50 states in homeownership rates as well as in the supply of housing per capita.  Only one-half of California's households are able to afford the cost of housing in their local regions. (F) Lack of supply and rising costs are compounding inequality and limiting advancement opportunities for many Californians. (G) The majority of California renters, more than 3,000,000 households, pay more than 30 percent of their income toward rent and nearly one-third, more than 1,500,000 households, pay more than 50 percent of their income toward rent. (H) When Californians have access to safe and affordable housing, they have more money for food and health care; they are less likely to become homeless and in need of government-subsidized services; their children do better in school; and businesses have an easier time recruiting and retaining employees. (I) An additional consequence of the state's cumulative housing shortage is a significant increase in greenhouse gas emissions caused by the displacement and redirection of populations to states with greater housing opportunities, particularly working- and middle-class households.  California's cumulative housing shortfall therefore has not only national but international environmental consequences. (J) California's housing picture has reached a crisis of historic proportions despite the fact that, for decades, the Legislature has enacted numerous statutes intended to significantly increase the approval, development, and affordability of housing for all income levels, including this section. (K) The Legislature's intent in enacting this section in 1982 and in expanding its provisions since then was to significantly increase the approval and construction of new housing for all economic segments of California's communities by meaningfully and effectively curbing the capability of local governments to deny, reduce the density for, or render infeasible housing development projects and emergency shelters.  That intent has not been fulfilled. (L) It is the policy of the state that this section should be interpreted and implemented in a manner to afford the fullest possible weight to the interest of, and the approval and provision of, housing. (b) It is the policy of the state that a local government not reject or make infeasible housing development projects, including emergency shelters, that contribute to meeting the need determined pursuant to this article without a thorough analysis of the economic, social, and environmental effects of the action and without complying with subdivision (d). (c) The Legislature also recognizes that premature and unnecessary development of agricultural lands for urban uses continues to have adverse effects on the availability of those lands for food and fiber production and on the California Code, Government Code - GOV § 65589.5 | FindLaw file:///C/Users/Lopes/Documents/3-Issues - SLO/790 Foothill Dr/California Code, Government Code - GOV § 65589.5 _ FindLaw.html[7/14/2018 9:17:49 PM] economy of the state.  Furthermore, it is the policy of the state that development should be guided away from prime agricultural lands; therefore, in implementing this section, local jurisdictions should encourage, to the maximum extent practicable, in filling existing urban areas. (d) A local agency shall not disapprove a housing development project, including farmworker housing as defined in subdivision (h) of Section 50199.7 of the Health and Safety Code , for very low, low-, or moderate-income households, or an emergency shelter, or condition approval in a manner that renders the housing development project infeasible for development for the use of very low, low-, or moderate-income households, or an emergency shelter, including through the use of design review standards, unless it makes written findings, based upon a preponderance of the evidence in the record, as to one of the following: (1) The jurisdiction has adopted a housing element pursuant to this article that has been revised in accordance with Section 65588 , is in substantial compliance with this article, and the jurisdiction has met or exceeded its share of the regional housing need allocation pursuant to Section 65584 for the planning period for the income category proposed for the housing development project, provided that any disapproval or conditional approval shall not be based on any of the reasons prohibited by Section 65008 .  If the housing development project includes a mix of income categories, and the jurisdiction has not met or exceeded its share of the regional housing need for one or more of those categories, then this paragraph shall not be used to disapprove or conditionally approve the housing development project.  The share of the regional housing need met by the jurisdiction shall be calculated consistently with the forms and definitions that may be adopted by the Department of Housing and Community Development pursuant to Section 65400 .  In the case of an emergency shelter, the jurisdiction shall have met or exceeded the need for emergency shelter, as identified pursuant to paragraph (7) of subdivision (a) of Section 65583 .  Any disapproval or conditional approval pursuant to this paragraph shall be in accordance with applicable law, rule, or standards. (2) The housing development project or emergency shelter as proposed would have a specific, adverse impact upon the public health or safety, and there is no feasible method to satisfactorily mitigate or avoid the specific adverse impact without rendering the development unaffordable to low- and moderate-income households or rendering the development of the emergency shelter financially infeasible.  As used in this paragraph, a “specific, adverse impact” means a significant, quantifiable, 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.  Inconsistency with the zoning ordinance or general plan land use designation shall not constitute a specific, adverse impact upon the public health or safety. (3) The denial of the housing development project or imposition of conditions is required in order to comply with specific state or federal law, and there is no feasible method to comply without rendering the development unaffordable to low- and moderate-income households or rendering the development of the emergency shelter financially infeasible. (4) The housing development project or emergency shelter is proposed on land zoned for agriculture or resource preservation that is surrounded on at least two sides by land being used for agricultural or resource preservation purposes, or which does not have adequate water or wastewater facilities to serve the project. (5) The housing development project or emergency shelter is inconsistent with both the jurisdiction's zoning ordinance and general plan land use designation as specified in any element of the general plan as it existed on the date the application was deemed complete, and the jurisdiction has adopted a revised housing element in accordance with Section 65588 that is in substantial compliance with this article.  For purposes of this section, a change to the zoning ordinance or general plan land use designation subsequent to the date the application was deemed complete shall not constitute a valid basis to disapprove or condition approval of the housing development project or emergency shelter. (A) This paragraph cannot be utilized to disapprove or conditionally approve a housing development project if the housing development project is proposed on a site that is identified as suitable or available for very low, low-, or moderate-income households in the jurisdiction's housing element, and consistent with the density specified in the housing element, even though it is inconsistent with both the California Code, Government Code - GOV § 65589.5 | FindLaw file:///C/Users/Lopes/Documents/3-Issues - SLO/790 Foothill Dr/California Code, Government Code - GOV § 65589.5 _ FindLaw.html[7/14/2018 9:17:49 PM] jurisdiction's zoning ordinance and general plan land use designation. (B) If the local agency has failed to identify in the inventory of land in its housing element sites that can be developed for housing within the planning period and are sufficient to provide for the jurisdiction's share of the regional housing need for all income levels pursuant to Section 65584 , then this paragraph shall not be utilized to disapprove or conditionally approve a housing development project proposed for a site designated in any element of the general plan for residential uses or designated in any element of the general plan for commercial uses if residential uses are permitted or conditionally permitted within commercial designations.  In any action in court, the burden of proof shall be on the local agency to show that its housing element does identify adequate sites with appropriate zoning and development standards and with services and facilities to accommodate the local agency's share of the regional housing need for the very low, low-, and moderate-income categories. (C) If the local agency has failed to identify a zone or zones where emergency shelters are allowed as a permitted use without a conditional use or other discretionary permit, has failed to demonstrate that the identified zone or zones include sufficient capacity to accommodate the need for emergency shelter identified in paragraph (7) of subdivision (a) of Section 65583 , or has failed to demonstrate that the identified zone or zones can accommodate at least one emergency shelter, as required by paragraph (4) of subdivision (a) of Section 65583 , then this paragraph shall not be utilized to disapprove or conditionally approve an emergency shelter proposed for a site designated in any element of the general plan for industrial, commercial, or multifamily residential uses.  In any action in court, the burden of proof shall be on the local agency to show that its housing element does satisfy the requirements of paragraph (4) of subdivision (a) of Section 65583 . (e) Nothing in this section shall be construed to relieve the local agency from complying with the congestion management program required by Chapter 2.6 (commencing with Section 65088 ) of Division 1 of Title 7 or the California Coastal Act of 1976 (Division 20 (commencing with Section 30000) of the Public Resources Code ).  Neither shall anything in this section be construed to relieve the local agency from making one or more of the findings required pursuant to Section 21081 of the Public Resources Code or otherwise complying with the California Environmental Quality Act (Division 13 (commencing with Section 21000) of the Public Resources Code ). (f)(1) Nothing in this section shall be construed to prohibit a local agency from requiring the housing development project to comply with objective, quantifiable, written development standards, conditions, and policies appropriate to, and consistent with, meeting the jurisdiction's share of the regional housing need pursuant to Section 65584 .  However, the development standards, conditions, and policies shall be applied to facilitate and accommodate development at the density permitted on the site and proposed by the development. (2) Nothing in this section shall be construed to prohibit a local agency from requiring an emergency shelter project to comply with objective, quantifiable, written development standards, conditions, and policies that are consistent with paragraph (4) of subdivision (a) of Section 65583 and appropriate to, and consistent with, meeting the jurisdiction's need for emergency shelter, as identified pursuant to paragraph (7) of subdivision (a) of Section 65583 .  However, the development standards, conditions, and policies shall be applied by the local agency to facilitate and accommodate the development of the emergency shelter project. (3) This section does not prohibit a local agency from imposing fees and other exactions otherwise authorized by law that are essential to provide necessary public services and facilities to the housing development project or emergency shelter. (4) For purposes of this section, a housing development project or emergency shelter shall be deemed consistent, compliant, and in conformity with an applicable plan, program, policy, ordinance, standard, requirement, or other similar provision if there is substantial evidence that would allow a reasonable person to conclude that the housing development project or emergency shelter is consistent, compliant, or in conformity. California Code, Government Code - GOV § 65589.5 | FindLaw file:///C/Users/Lopes/Documents/3-Issues - SLO/790 Foothill Dr/California Code, Government Code - GOV § 65589.5 _ FindLaw.html[7/14/2018 9:17:49 PM] (g) This section shall be applicable to charter cities because the Legislature finds that the lack of housing, including emergency shelter, is a critical statewide problem. (h) The following definitions apply for the purposes of this section: (1) “Feasible” means capable of being accomplished in a successful manner within a reasonable period of time, taking into account economic, environmental, social, and technological factors. (2) “Housing development project” means a use consisting of any of the following: (A) Residential units only. (B) Mixed-use developments consisting of residential and nonresidential uses with at least two-thirds of the square footage designated for residential use. (C) Transitional housing or supportive housing. (3) “Housing for very low, low-, or moderate-income households” means that either (A) at least 20 percent of the total units shall be sold or rented to lower income households, as defined in Section 50079.5 of the Health and Safety Code , or (B) 100 percent of the units shall be sold or rented to persons and families of moderate income as defined in Section 50093 of the Health and Safety Code , or persons and families of middle income, as defined in Section 65008 of this code.  Housing units targeted for lower income households shall be made available at a monthly housing cost that does not exceed 30 percent of 60 percent of area median income with adjustments for household size made in accordance with the adjustment factors on which the lower income eligibility limits are based.  Housing units targeted for persons and families of moderate income shall be made available at a monthly housing cost that does not exceed 30 percent of 100 percent of area median income with adjustments for household size made in accordance with the adjustment factors on which the moderate-income eligibility limits are based. (4) “Area median income” means area median income as periodically established by the Department of Housing and Community Development pursuant to Section 50093 of the Health and Safety Code .  The developer shall provide sufficient legal commitments to ensure continued availability of units for very low or low-income households in accordance with the provisions of this subdivision for 30 years. (5) “Disapprove the housing development project” includes any instance in which a local agency does either of the following: (A) Votes on a proposed housing development project application and the application is disapproved, including any required land use approvals or entitlements necessary for the issuance of a building permit. (B) Fails to comply with the time periods specified in subdivision (a) of Section 65950 .  An extension of time pursuant to Article 5 (commencing with Section 65950 ) shall be deemed to be an extension of time pursuant to this paragraph. (i) If any city, county, or city and county denies approval or imposes conditions, including design changes, lower density, or a reduction of the percentage of a lot that may be occupied by a building or structure under the applicable planning and zoning in force at the time the application is deemed complete pursuant to Section 65943 , that have a substantial adverse effect on the viability or affordability of a housing development for very low, low-, or moderate-income households, and the denial of the development or the imposition of conditions on the development is the subject of a court action which challenges the denial or the imposition of conditions, then the burden of proof shall be on the local legislative body to show that its decision is consistent with the findings as described in subdivision (d) and that the findings are supported by a preponderance of the evidence in the record.  For purposes of this section, “lower density” includes any conditions that have the same effect or impact on the ability of the project to provide housing. (j)(1) When a proposed housing development project complies with applicable, objective general plan, zoning, and subdivision standards and criteria, including design review standards, in effect at the time that the housing development project's application is determined to be complete, but the local agency proposes to California Code, Government Code - GOV § 65589.5 | FindLaw file:///C/Users/Lopes/Documents/3-Issues - SLO/790 Foothill Dr/California Code, Government Code - GOV § 65589.5 _ FindLaw.html[7/14/2018 9:17:49 PM] disapprove the project or to impose a condition that the project be developed at a lower density, the local agency shall base its decision regarding the proposed housing development project upon written findings supported by a preponderance of the evidence on the record that both of the following conditions exist: (A) The housing development project would have a specific, adverse impact 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.  As used in this paragraph, a “specific, adverse impact” means a significant, quantifiable, 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. (B) There is no feasible method to satisfactorily mitigate or avoid the adverse impact identified pursuant to paragraph (1), other than the disapproval of the housing development project or the approval of the project upon the condition that it be developed at a lower density. (2)(A) If the local agency considers a proposed housing development project to be inconsistent, not in compliance, or not in conformity with an applicable plan, program, policy, ordinance, standard, requirement, or other similar provision as specified in this subdivision, it shall provide the applicant with written documentation identifying the provision or provisions, and an explanation of the reason or reasons it considers the housing development to be inconsistent, not in compliance, or not in conformity as follows: (i) Within 30 days of the date that the application for the housing development project is determined to be complete, if the housing development project contains 150 or fewer housing units. (ii) Within 60 days of the date that the application for the housing development project is determined to be complete, if the housing development project contains more than 150 units. (B) If the local agency fails to provide the required documentation pursuant to subparagraph (A), the housing development project shall be deemed consistent, compliant, and in conformity with the applicable plan, program, policy, ordinance, standard, requirement, or other similar provision. (3) For purposes of this section, 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. (4) For purposes of this section, “lower density” includes any conditions that have the same effect or impact on the ability of the project to provide housing. (k)(1)(A) The applicant, a person who would be eligible to apply for residency in the development or emergency shelter, or a housing organization may bring an action to enforce this section.  If, in any action brought to enforce this section, a court finds that either (i) the local agency, in violation of subdivision (d), disapproved a housing development project or conditioned its approval in a manner rendering it infeasible for the development of an emergency shelter, or housing for very low, low-, or moderate-income households, including farmworker housing, without making the findings required by this section or without making findings supported by a preponderance of the evidence, or (ii) the local agency, in violation of subdivision (j), disapproved a housing development project complying with applicable, objective general plan and zoning standards and criteria, or imposed a condition that the project be developed at a lower density, without making the findings required by this section or without making findings supported by a preponderance of the evidence, the court shall issue an order or judgment compelling compliance with this section within 60 days, including, but not limited to, an order that the local agency take action on the housing development project or emergency shelter.  The court may issue an order or judgment directing the local agency to approve the housing development project or emergency shelter if the court finds that the local agency acted in bad faith when it disapproved or conditionally approved the housing development or emergency shelter in violation of this section.  The court shall retain jurisdiction to ensure that its order or judgment is carried out and shall award reasonable attorney's California Code, Government Code - GOV § 65589.5 | FindLaw file:///C/Users/Lopes/Documents/3-Issues - SLO/790 Foothill Dr/California Code, Government Code - GOV § 65589.5 _ FindLaw.html[7/14/2018 9:17:49 PM] fees and costs of suit to the plaintiff or petitioner, except under extraordinary circumstances in which the court finds that awarding fees would not further the purposes of this section. For purposes of this section, “lower density” includes conditions that have the same effect or impact on the ability of the project to provide housing. (B)(i) Upon a determination that the local agency has failed to comply with the order or judgment compelling compliance with this section within 60 days issued pursuant to subparagraph (A), the court shall impose fines on a local agency that has violated this section and require the local agency to deposit any fine levied pursuant to this subdivision into a local housing trust fund.  The local agency may elect to instead deposit the fine into the Building Homes and Jobs Fund, if Senate Bill 2 of the 2017-18 Regular Session is enacted, or otherwise in the Housing Rehabilitation Loan Fund.  The fine shall be in a minimum amount of ten thousand dollars ($10,000) per housing unit in the housing development project on the date the application was deemed complete pursuant to Section 65943 .  In determining the amount of fine to impose, the court shall consider the local agency's progress in attaining its target allocation of the regional housing need pursuant to Section 65584 and any prior violations of this section.  Fines shall not be paid out of funds already dedicated to affordable housing, including, but not limited to, Low and Moderate Income Housing Asset Funds, funds dedicated to housing for very low, low-, and moderate-income households, and federal HOME Investment Partnerships Program and Community Development Block Grant Program funds.  The local agency shall commit and expend the money in the local housing trust fund within five years for the sole purpose of financing newly constructed housing units affordable to extremely low, very low, or low- income households.  After five years, if the funds have not been expended, the money shall revert to the state and be deposited in the Building Homes and Jobs Fund, if Senate Bill 2 of the 2017-18 Regular Session is enacted, or otherwise in the Housing Rehabilitation Loan Fund, for the sole purpose of financing newly constructed housing units affordable to extremely low, very low, or low-income households. (ii) If any money derived from a fine imposed pursuant to this subparagraph is deposited in the Housing Rehabilitation Loan Fund, then, notwithstanding Section 50661 of the Health and Safety Code , that money shall be available only upon appropriation by the Legislature. (C) If the court determines that its order or judgment has not been carried out within 60 days, the court may issue further orders as provided by law to ensure that the purposes and policies of this section are fulfilled, including, but not limited to, an order to vacate the decision of the local agency and to approve the housing development project, in which case the application for the housing development project, as proposed by the applicant at the time the local agency took the initial action determined to be in violation of this section, along with any standard conditions determined by the court to be generally imposed by the local agency on similar projects, shall be deemed to be approved unless the applicant consents to a different decision or action by the local agency. (2) For purposes of this subdivision, “housing organization” means a trade or industry group whose local members are primarily engaged in the construction or management of housing units or a nonprofit organization whose mission includes providing or advocating for increased access to housing for low-income households and have filed written or oral comments with the local agency prior to action on the housing development project.  A housing organization may only file an action pursuant to this section to challenge the disapproval of a housing development by a local agency.  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. (l) If the court finds that the local agency (1) acted in bad faith when it disapproved or conditionally approved the housing development or emergency shelter in violation of this section and (2) failed to carry out the court's order or judgment within 60 days as described in subdivision (k), the court, in addition to any other remedies provided by this section, shall multiply the fine determined pursuant to subparagraph (B) of paragraph (1) of subdivision (k) by a factor of five.  For purposes of this section, “bad faith” includes, but is not limited to, an action that is frivolous or otherwise entirely without merit. California Code, Government Code - GOV § 65589.5 | FindLaw file:///C/Users/Lopes/Documents/3-Issues - SLO/790 Foothill Dr/California Code, Government Code - GOV § 65589.5 _ FindLaw.html[7/14/2018 9:17:49 PM] « Prev Next » (m) Any action brought to enforce the provisions of this section shall be brought pursuant to Section 1094.5 of the Code of Civil Procedure , and the local agency shall prepare and certify the record of proceedings in accordance with subdivision (c) of Section 1094.6 of the Code of Civil Procedure no later than 30 days after the petition is served, provided that the cost of preparation of the record shall be borne by the local agency, unless the petitioner elects to prepare the record as provided in subdivision (n) of this section.  A petition to enforce the provisions of this section shall be filed and served no later than 90 days from the later of (1) the effective date of a decision of the local agency imposing conditions on, disapproving, or any other final action on a housing development project or (2) the expiration of the time periods specified in subparagraph (B) of paragraph (5) of subdivision (h).  Upon entry of the trial court's order, a party may, in order to obtain appellate review of the order, file a petition within 20 days after service upon it of a written notice of the entry of the order, or within such further time not exceeding an additional 20 days as the trial court may for good cause allow, or may appeal the judgment or order of the trial court under Section 904.1 of the Code of Civil Procedure .  If the local agency appeals the judgment of the trial court, the local agency shall post a bond, in an amount to be determined by the court, to the benefit of the plaintiff if the plaintiff is the project applicant. (n) In any action, the record of the proceedings before the local agency shall be filed as expeditiously as possible and, notwithstanding Section 1094.6 of the Code of Civil Procedure or subdivision (m) of this section, all or part of the record may be prepared (1) by the petitioner with the petition or petitioner's points and authorities, (2) by the respondent with respondent's points and authorities, (3) after payment of costs by the petitioner, or (4) as otherwise directed by the court.  If the expense of preparing the record has been borne by the petitioner and the petitioner is the prevailing party, the expense shall be taxable as costs. (o) This section shall be known, and may be cited, as the Housing Accountability Act. Read this complete California Code, Government Code - GOV § 65589.5 on Westlaw FindLaw Codes are provided courtesy of Thomson Reuters Westlaw, the industry-leading online legal research system. 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