HomeMy WebLinkAbout05/06/1997, 2 - RMING AGENDA
May 6, 1997
C, C��CI�
To: City of San Luis Obispo, City Council �+C X40
From: Diane Hull G�RK
SDNAS
This document was endorsed by the Edna Area Group in September 1996 and
presented to the Board of Supervisors.
The purpose of this memorandum is to discuss the advantages of including a sunset
clause in the proposed TDC Ordinance. Additionally, a draft of the sunset clause is
attached to help the Board of Supervisors (City Council) visualize how it could be
worded.
General Discussion
Congress frequently enacts sunset clauses in proposed tax law changes to evaluate
whether or not the law is producing the desired effect and to analyze unforeseen
effects. Additionally, a tax law, such as the Investment Tax Credit, is established with a
sunset clause because Congress wants to stimulate certain types of investing for a
temporary period of time. Even some permanent types of tax laws, such as lower rates
for capital gains, will change from time to time, as the political and economic climate
changes. As a result, transactions are either accelerated or deferred. Investors are
accustomed to uncertainties such as these, and make decisions according to these
changing rules. The fiscal and economic uncertainties of the TDC program would be
similar.
The TDC program creates, on paper, a new economic unit by separating the residential
development potential from eligible property. The rules appear complex and
cumbersome. The ordinance states that the program is voluntary, but the ultimate
decision rests with the Board of Supervisors (City Council). When the Board required
TDCs for 2 development projects in North County as part of their general plan update,
cthe TDC program became de-facto mandatory for them. Additionally, in the future, the
J T Board may allow Arroyo Grande to use TDCs to increase commercial development in
'= zL'exchange for TDCs. This would be a significant change to current zoning laws and
=' o represents a departure from the underlying purpose of TDCs: To retire residential
development from agriculture properties and natural resource areas.
C' U
M This TDC program is such a monumental change to the way San Luis Obispo county
(city) currently operates, we believe that a sunset clause is the only prudent way to
evaluate the potential ramifications. The Board should develop success parameters
now as part of the TDC ordinance. If the program is successful, the Board of
Supervisors (City Council) can pat themselves on the back and extend it. If the TDC
program is unsuccessful, the Board of Supervisors (City Council) merely allows the
sunset clause to become effective.
There is an expectation that a certain number of properties will participate in the TDC
program, and a sunset clause will not have a negative effect on these transactions. In
fact, the county residents may be the beneficiary if TDC participants move quickly to
participate in the program, thus ensuring its continuation.
TDC Ordinance
Sunset Clause
This ordinance will be in effect for 4(or 10?) years from the date of enactment, unless
extended by a majority vote of the Board of Supervisors (City Council). An extension
shall constitute an additional 4(or 10?) years. If this ordinance is not extended, then
the following rules shall apply in order to facilitate a fair and expeditious transition out
of the TDC program.
The purpose of the transition rules is to guarantee that receiving sites who have not
purchased their TDCs by the sunset date will be allowed to complete that process and
complete the development of their project.
Sending Sites
If a property owner has applied to participate in the TDC program as a sending site,
they will be considered as participating and will not be precluded from completing the
application process if the sunset clause goes into effect. A qualified sending site is a
property that has been approved pursuant to the terms of the ordinance.
A qualified sending sites with unsold TDCs will be allowed to sell TDCs to qualified
receiving sites that exist after the sunset clause goes into effect.
If a property owner has signed up to be a sending site and has sold all of their available
TDCs, then this program will no longer apply to them, since the property owner has
received full compensation for the permanent easement.
If a property owner which is a qualified sending site, and has unsold TDCs, then a
partial easement reflecting the percentage of sold TDCs will remain attached to the
property.
If a property owner has signed up to be a sending site, and there have been no sales of
TDCs, then the property will retain its previous unfettered title.
Receiving Sites
If a property owner has applied to participate in the TDC program as a receiver site,
they will be considered as participating and will not be precluded from completing the
application process if the sunset clause goes into effect. A qualified receiving site is a
property that has been approved pursuant to the terms of the ordinance.
A qualified receiving site will be allowed to purchase TDCs from qualified sending sites
that exist after the sunset clause goes into effect.
2
MEETING AGENDA
MEMORANDUM DATE ITEM #
TO: Honorable Mayor and City Council
VIA: John Dunn, City Administrative Officer
FROM: Arnold Jonas, Community Development Director °
DATE: May 6, 1997
SUBJECT: Transfer of Development Credit Ordinance
Item#2 on tonight's Council hearing agenda concerns the possible introduction of an
ordinance which, in conjunction with a complementary County ordinance, would allow the
transfer of private development rights between the two jurisdictions. The County
ordinance, previously adopted by the Board of Supervisors, is now the subject of litigation
which could result in program or detail changes during the current calendar year. Given
the need for close coordination between the City and County in establishing and
administering the program, this potential for change by the County introduces an element
of uncertainty regarding appropriate structure and detail in the City ordinance..
It thus appears that the City's process would be best served by delaying consideration and
introduction of our ordinance until the situation at the County is resolved. There is no
specific time goal or deadline for adoption of our ordinance. Consequently, we
recommend that Council continue the matter without hearing to a date uncertain. It can
then be rescheduled at an appropriate future date.
❑�NCIL ❑ wn UI,
0-CAO ❑ FIN DIR
ICAO ❑ FIRE CHIEF
❑ ATTORNEY ❑ PW DIR
❑-CLERKRIG ❑ POLICE CHF
❑ MGMT TEAM ❑ REC DIR
0 0 r
d-FIEW FU ❑ UTIL DIR �1
7 _ ❑ PERS atm r
R r, � ^
I�(� l�• ., _
WrI1
CITY CLERK
Rf.N LUIS GEIS=3-r'�
L
ulna Use
hundred.
•aliillystia
The at
a u
` m m ply No rive bora
five barg,
ees,whit
a+P ( ' ` employee
ingTransferable Development Rights' Concept Rips Off Landowners both of
airs cellular p.
Wit. By Ronald A.Zumbrun The court further concluded that Sultum;without me but a
rent All
•ud. attempting to transfer the tights she currently possesses,:....
his he U.S.Supreme Court next month will consid- cannot know the"nature and extent of permitted develop. himself a
ted er a petition about a landowner's right to seek meat...and thus cannot know the regulations'full eco- and
pother
nd, just compensation for public use of her proper- nomic impact."
ind ty.Suilum a Tahoe Regional Plan.ping Agency,96.243, ,-�,,,L., ,� c•,:.,. .'lure rcco
ed'e
Sts, revolves around a concept known as a transferable:. .. yin Lpcas,a South. li><a�Cggc(gf Copnee�I„SQS;U��, '
p rn. development right T ib03(1992),.the U.S.supreme Court he d that ane:,.1no
iani
a om The constitutionality of TDRs has yet to be deter- 1 test for governmeota]regulation of property violating
ter, mined. Governmental agencies invoke this dubious the takings clause is when the"regulation denies all eco- may have
cal power
p ust "right"when prohibiting individuals from using their nomically beneficial or productive use of land."The court he threw
mg property.The idea is to allow one owner of restricted noted that this per se rule"typically"applies to regula- charges I
is a land to transfer and sell the development rights he has tions"requiring land to be left in its natural state'In mak- Asu'rbh'
been denied to another whose property has been ing its Wiling,the court determined that"the erection of The ru:
restricted to a lesser degree. any habitable or productive improvements"on ones land Baugh wil
cane A TDR is intended to give the totally restricted is`the essential use of land."Lucas provides a clear-cut election y
landowner a mechanism for receiving some compensa- basis for determining that the Tahoe Regional Planning the so ndv
tion—albeit from another property owner,not from Agency's placement of Suitum's property in an SEZ vio- controlw
the government.Although the TDR remains only an lates the takings clause and entities Suitum to just corsi
at cors, control
slap
abstract concept• unrealized as a legitimately mar- pensation. _ � ,. at(
ketable product,governments nonetheless wield it as a The 9th Circuits decision also conflicts vnM Supreme ed ave ch
denials.n's means to avoid claims against permit dens. Court decisions involving the ripeness doctrine.In edict allot
at
so In 1989,Bernadine Suit- Williamson County Regional adversely
att
:to um submitted to the Tahoe Planning Coinmission.*a y
but Regional Planning Agency Hamilton Bank,473 U.S. evident.a
:nd plans to develop her par- 172 (1985),the court ruled general can
vg cel.The agency evaluated truth Is that that before an owner can •Sade
the land and determined challenge the application of Judge Jan
TDRs are a scheme to allow
tag that it was located in a I governmental rthe most
regulations the
ids stream environment zone. government t0 avoid Its duty on his property,he needs.to': ' the state I
TIy A policy of the Tahoe }0 compensate landowners have"obtained a final'deci• putes are
the agency prohibits any"new I pe sionregardinghow itwill be: hands,e:
land,coverage or other for overregulation. allowed.to develop ita:prop'..: •ho m2tu
permanent land distur- erty."The court concluded "ballots•
tch bance"in an SEZ.The rul- /��7�,� ✓ n.'I that thq amouat of devdoR ` = :Recent.
ing capriciously ignored /-r91�ff�/.7 J/c/VL �7 �B- ment allowed on a piece.of that;yote
that the parcel was sur- / pronerty is the essential fact... u`P.ropositi
rounded by existing development.Under the agency for in challenges based on a regulation's economic affitmati
policy,there is absolutely no use to which Suitum can. impact though th
put her land. In MacDonald,Sommer&Fmfes u County ofYolo,477 in theme:
O.S.340(1986),the court held that'our cases uniformly Ford's i
n November 1990,the Tahoe Regional Planning reflect an insistence on knowing the nature and extent of General D
Agency denied Suitum's appeal.She then filed suit in permitted development before adjudicating the constitu- backer wl
the U.S.District Court for the District of Nevada, tionality of the regulations that purport to limit it." language.
alleging that the agency's application of its regulations and There is no uncertainty about the amount of develop- when an
ordinances to her property violated her civil rights under ment that the TRPA will allow on Suiturn s property.No ruling aw
_ the Filth and 14th Amendments and constituted a taking variances or other procedures are available.to allow her to guage.Tb
J-
of- _ of her property without just compensation.The agency develop her land.Under Wr4iamson.Citunty.and MacDon-. r�mpac
�D.J DIR moved for summaryjudgment aid.Suitum s case should have been ripe for review which bar
IJ`�O The court examined the agency's TDR poli which ' erences in
❑ FIN DIR g ry' The 9th Circuit stated that the TDR program;was
ErACAOallows transfers of development rights on the condition designed to provide relief to owners of•property in an.. approved I
❑ FIRE CHI that the seller's SEZ parcel be retired permanently.For SEZ.In practice,however,the program offers no assya
2-ATTORNEY ❑ PW DIR Suitum,this means that she could attempt to sell to moth- tante to owners prohibited from developing their proper. T T
Q ��RIVORIt3 ❑ POLICE er property owner the rights to additional land coverage, ties.The TDR oroeram has never nroduced any sales and V rV
residential development rights and a residendai construe- there is no market for the Tahoe Regional Planning:.' 1.;.To
❑ MGMTT�+ ❑ REC DIR tion allocation.For the purchaser,this means a highly Agency's development rights The court disregarded the ' the state':
❑ C - U= ❑ UTlI DIR questionable requirement to pay for aTDR in order to use to agency staff member, Chief Just
affidavit of Paul Kale a former
his own property.Presumably,payment for this extortion- who was qualified to testify as to whether development often get i
❑ PERS DIR ate device also means that the purchasing owner is free to rights have ever been sold.Suitum argued that the exclu. !shed, Lha
------>a. - ignore the environmental concerns initially justifying the sion of that testimony was an abuse of discretion. intervene.
use restrictions on his property. A Feder;
In March 1994,the district court granted.the agency's careers ei
motion for summary judgment on ripeness grounds, ince 1987,the Supreme Court has been vindicating politicians
because the agency had not ruled on another party's eligi- without hesitation the rights of property owners. W liken
bility to receive the TDR from Suitum.Suitum appealed W Lucas rejected the notion,advanced by planners, in a laws,
the 9th U.S.Circuit Court of Appeals.In its affirmation, that even if a regulation destroyed the complete value of a imposed t
the 9th Circuit ignored the actual conditions and proh bi- property,no compensation need be paid by the govern- tors and r
tions attached to Sultum's property and curiously conclud- gent e the regulation was designed ei promote some And if sh
ed that"transfer of development rights is a'use'of SEZ "greater public purpose or avoid a perceived harm or leg= which sod
property."Because that"use"had not been exercised,the islatively defined nuisance. indicated
case was not ripe for review. The bare truth of TDRs is that they constitute nothing. pietely al:
more than a scheme to allow government to avoid its duty. 1998.It w
J to compensate landowners for overregulation of their
�y Ronald A. Zumbrun, managing attomey.of Zumbrun property.Suitum clearly has been denied the"essential Pete
&Findley;a Sammentobased firm specializing In pub use"of her land as defined b'y the Lucas court.The wishes,
A�/ lic Issues,.filed a amicus curies brief before the U.S. Supreme Court should take the opportunity now before it
MAY A U ' Supreme Court supporting the appellant. to reinforce the rights of property owners by reaffirming FSacramE
Dan We
Lucas and reversing the 9th Circuits prejudicial decision. ,. ,
CITY CLERK
Vr N LUIS GBiS'O,CA
7�• 1':!
TiniothV R::Hall Joins PLF Board , PLF NEE DS YOURSUPPORT:TQ
w :REGAIN AND STRENGTHEN_OUR.
°FREEDOMS
z 'Pacific Legal Foundation Mr.Hall participated m the local Oro
:Tunothy R.Hall•as a new member of !,oma School Board while he lived in the HF 1713 to and y�� t
its Board of Trustees.Mc Hall is the San Joaquin Valley,and more recently .
the basic freedoms guaranteed tinder th -
r .Constitntlori"and"to reverse the ouunous. �%
ovvrter of T R Hall land and Cattle has been a member of the Santa Catalina toward��l con o�
k , �-
?Com an ,and he is Gerieral_Partner and School Board in Monterey.He is currently
p y Y Americans: PLF defends the,nght too-
President
: Manager of Tare Hall Company—two President of the Larkin House Advisory" . ieasonably itse private property
a gnculturaTenterpriseibased in the San Committee,which oversees the preserva- govemuentregulatinnsthateleirate.
.:. above the_ of atiz®s PLF
,kJoaquin VaIley., tion and display of one of Moateiey's. "" `;• -.
` Mr Hall has been a longtime advocate historic adobes. taxaueat '�' ••
a ,.. j 09 quotas,and suPporis eduratioo toR ...
nand exemplar of the responsible use of Mr.Hall received his B.S.in Business reforam As a defender of.the free eua}rise
our sI . d resources Mt Hall has lobbied Administration from California State r.
PLF receiies no emment "" is aiid.is
:. :=extensively for water legislation in University at Fresno in 1971.He lives ith tlrelybyprivete�-butinm hdo ;ou'
N�Saciaatento and{Nashmgton D.C.,on i his wife,Laurie,in Cannel,California'.
'Fro",mid bequest hn nvilLs and tnrsls
;behalf of western waffii,users.He has I dude wider
Falso been a boaid member for the F
hI'anocheWaterDatd&, 'OFFICERS. .. F
, ?Chairman Jerry
M
Robe
Vice Chairmen" rt E. Y+ °
�e,, .{e. .•^4.- .T �k
Ben J.Gantt'Tk'..
Secretary-Treasurer 'April J.Mords;
,- pV Again In The'U.S.SupremeCourt President and clio, Robert Best. = '
=tinned from Page 1) ;Asst.Sec.-Treasurer .'Anthony T.1
" .
Robbing "Peter"To Pay"Paul" � (the size of a bedroom)to an,as yet, BOARD OF TRUSTEES
Mrs.Bernadine Suitum applied for a unidentified owner of a"receiving parcel Robin P.Arkley
ermrt 1989 to build one modest house ! with acceptable use and density eligibility." 'Rancher/Businessman
m
o In other words,Mrs.Suitum is not
on a lot in Incline Village,Nevada,that James J.Busby,President and owners -
she and her late husband bought in 1972. entitled to a day in court to challenge the Security Owners Corporation;..{ " a;<
The Plannin A outright taking of her
g 8�Y :. ::� '. ,..
iejected her application property until she first James L.CloudSenior Vice Preside t :,
ind denied her the right to PLF has brought finds another individual— National Bank of Alaska ,s 'x_
, z
:.piither parcel toany before the Supreme whoever he.might be 7.
p whose right to use his Greg M.Evans,President&G
r,productive or beneficial :--, .. Mane
iise even though three Court an outstanding own lot has been restricted - "
g ".Evans Management = .. A.Y::
nei oris houses abut opportunity to so drastically that he will =
ghb g
three sides of her lot.The Pay Mrs.Suitum some Ben J.Gantt,Ji:
agency denied her crinin dubious' unknown,amount for the Graham&Dunn
ge p scrutinize a di.bious
without compensation on "privilege"of making �s-
le al device called some reasonable use of Timothy R.Hall Owner=;L
-the grounds that her small 9 `TJt HaB Land and Cattle C 'R
lot,totally surrounded by transferable his parcel.Stated a °°`? !
paved streets and different way,the Planning ?:> Thomas A.May * ,"
buildings,is really a development rights... Agency is"robbing Peter Luce,Forward,Hamilton&Scripps., y
'Stream Environment to pay Paul."The agency sti Y
'Zone"in which„nen+,land that is nothing more wants"Peter"to pay Robert E.McCarthy r- '
Ye�_nth than a bureaucratic Mrs.Suitum to get back McCarthy&Rub-rght 3
development rights the
land dk.d oP P>i' Y �April J.Morris,enent
s a " ruse...to prevent stole from him in the first Moms-Gibbons and '
1 � �piolubited.Mrs.Suitum f0 e Owners... pace.Even if Mrs.Suitum
if :z r filed a lawsuit p p could fwd this penton and Jerry W.P.Schauffler,FeesrdmG`
ng " 53 WSJ.Builder,Inc(Rehtei
the Plaiuiin A somehow sell"1 µ•...
g. � from making `_':.;•y w::: ::�,. .: . ' :_::� •...;::-
'lated her civil rights by feet of her"'land coverage,
� „ prosy beneficial use of their she would still be prohib- s John L Schwabe
_ Schwabe,Williairnson&Wyatt-.
ited from making any use * '
fie benefit without'. g Y
t• propertleS. of her lot.What the . :4 Ronald E.Van Buskirk;'
;aging her compensation
; . '•;�' PI Agency is doin
mgrnred by the . . Dreg g cY 8 S j-`tPb!>rY
5� In Mrs.Suitum is an outright scam.
r V.US.Constitution. ._- Brooks Walker;Jr.,GenetalP ' 1
,3 " PLF will be before the
d errrv„The federal District Court and Ninth arguing r .
F Justices in earl 1997 that venrment ' t1 � Walker]nvestors
,, t Court of A eats ruled for the Y go ra w i r.
, ---�g Agency whi&claim that i agencies cannot rely upon legal fictions." s "�m6ntDoffimummm ,^�odw
}; .. like"transferable devel ment rights"so _ ussriiryiowi eaes,aene.oeosrnwaoo n
, f Ins.Suitumt hes no right to challenge the °psuai ,Bacn,we senna Rost uasaax.
perapt denial tetanise she didn't attempt ,s to avoid their responsibility under the ;-m�Fa&ftd tim,$aite250, >..
`-'to transfer her"development rights"to nnstitu tion to pay compensation to t ou �o Pu m ,
=So ' landowners whose properties have been
�=:someone else.Under the agency's P P ;.-, :••�. . --` •: ,
r uleted out of existence. Ed
m itor;5' `. J• `;.,.'-
elaborate procedures,Mrs.Suitucould E Sigfredo A.Catiiera';fix,:•• 4 '`.
sell 183-square-feet of"land coverage"
Winter 1996 • GUIDEPOST.7,-,, .
TDC MAILING LIST
4GENDA, AGENDA REPORT, AND
compiled: 4-16-97 ALL ATTACHEMENTS:
for: 5-6-97
Jane Carver Ray Belknap Kami Griffin
S.L.O. Co. Agricultural Task Force S.L.O. Co. Land Conservancy S.L.O. Co. Planning
PO Box 14060 PO Box 12206 County Government Center
San Luis Obispo CA 93406 San Luis Obispo CA 93406 San Luis Obispo CA 93408
Dominic Perello Dick Cleeves Diane Hull
1591 Slack Street S. L. 0. Property Owners' Assn. 4485 Sunflower Way
San Luis Obispo CA 93405 PO Box 12924 San Luis Obispo CA 93401
San Luis Obispo CA 93406
AGENDA ONLY:
John Belsher Roger Lyon Keith Gurnee
Belsher&Becker Attorneys Lyon and Carmel Attorneys FIRM Design Group
1460 Higuera Street 1104 Palm Street 3701 South Higuera St.
San Luis Obispo CA 93401 San Luis Obispo CA 93401 San Luis Obispo CA 93401
Andrew Merriam Mike Multari Susan Ostrov
Cannon Associates Crawford, Multari &-tafr CA 041K Wallace & Associates
364 Pacific Street 641 Higuera Street 4115 South Broad St., Suite B5
San Luis Obispo CA 93401 San Luis Obispo CA 93401 San Luis Obispo CA 93401
Scott Gregory Marilyn Button Phil Ashley
S.L.O. Chamber of Commerce Farm Bureau CASA
1039 Chorro Street 651 Tank Farm Road 1586 La Cita Court
San Luis Obispo CA 93401 San Luis Obispo CA 93401 San Luis Obispo CA 93401
Don Warden Christine Mulholland Geof Land
7515 Los Osos Valley Rd. 1334 Diablo Drive ECOSLO
San Luis Obispo CA 93405 San Luis Obispo CA 93405 PO Box 1014
San Luis Obispo CA 93406
Martin J. Tangeman Vicki Janssen
San Luis Obispo Board Of Realtors Sinsheimer, Schiebelhut & Baggett Board of Supervisors Staff
443 Marsh Street 1010 Peach Street County Government Center
San Luis Obispo CA 93401 San Luis Obispo CA 93401 San Luis Obispo CA 93408