Loading...
HomeMy WebLinkAboutAS02-City Attorney , 'CITY OF SAN BE~ARDINOo- MEMORANDU~ 'I t._ To RALPH H. PRINCE City Attorney Incentives for High Quality Housing From JOHN F. WILSON Deputy City Attorney September 22, 1986 Subject Date Approved Date 985:386-31, 10,47, . Question .- May the City grant exemptions and rebates on fees collected by the City as an incentive to the private development of higher quality housing in the foothill area of the City? ,0 Facts The City wishes to encourage the development of higher quality housing in the area generally lying east of Electric Avenue and north of 40th Street. The provision of regulatory incentives in the form of rebates or exemptions from fees collected by the City may be a way of encouraging such development. Analysis Differentiation between geographic areas with respect to the proYision of regulatory incentives, on the grounds that such differentiation will promote the health safety and welfare of the community, is not without precedent. Within a Charter City, such action is a municipal affair and will withstand legal challenge. The proposed action of the City can be analogized to the State Enterprise Zone concept. The Enterprise Zone Act of the State of California (Goyernment Code Section 7070 et seg.) sets forth in its statement of legislative findings and purpose that: -The legislative finds and declares that the health, safety, and welfare of the people of California depend upon the development, stability, and expansion of private business, industry, and commerce, and that there are certain area within the state that are econo~ically deprived . . .- Therefore it is (Governm~nt Code Section (7071) 1 A-;).,. ~~ 6~ .. ,'0 1 , o o o declared to be the purpose of that act to stimulate business and industrial growth in the deprived areas of the state by relaxing regulatory controls . . .- (emphasis added) (Government Code Section 7071) The act goes on to declare that among the incentives to be provided are: -. . . the suspension or relaxation of locally originally or modified building codes, zoning laws, general development plans, or rent control~ the elimination or reduction of fees for aoolication, oermits. and local aovernment services. . . - (Government Code Section 7073(e)) Within the City such actions as the state undertook in the Enterprise Zone Act are a municipal affair of the City. A Charter City may undertake to identify specific geographical areas of concern and to use means analogous to those authorized by the State for use in Enterprise Zone in addressing the problems identified in those areas. (CalifDrnia Article II, Section 5). This authority is subject only to the limitations contained in the State Constitution and the Charter itself (Citv Council of City of San Jose v. South (1983) 194 Cal.Rptr. 110, 146 Cal.App.3d 320). The State Constitution contains no provisions which preclude the granting of the proposed incentives. The Council has reserved to it under Section 40(Z) of the Charter, the authority to grant such incentives as are proposed. Conclusion The Mayor and Common Council by Ordinance may lawfully administer regulatory fees under the control of the City in such manner as to provide incentives for private development of higher quality housing in specific geographical areas of the City. 1:., ~ OHN F. WILSON Deputy City Attorney JFW:pmm cc: Mayor City Administrator City Clerk 2 , , o o o o CITY OF SAN BERNARDINO 300 NORTH "0" STREET. SAN BERNARDINO. CALIFORNIA 92418 . RALPH H, PRINCE CITY ATTORNEY September 8, 1986 Opinion No. 86-28 10.85, 700.30 Steve Marks Councilman, Fourth Ward l Re: Review of Plans 86-51 QUESTION Does a rezone in connection with annexation confer any vested right on a property owner of land within the annexed area? FACTS Approximately 650 acres were annexed to this City on November 4, 1968. The zoning of a portion of this property was at that time, and still is, R-3-2000. In June of 1986, a proposal (Review of Plans 86-51) was submitted to the Planning Department to construct 594 apartments on 50.5 acres in the R-3-2000 zone located at the northern terminus of La praix Avenue and Citrus Street. There was a discrepancy between the application, and the City's maps, with respect to the location of the zone boundary, which separated the a-3-2000 property from RPD property to the north. As a result of this discrepancy, the application was not accepted for filing, and was returned to the applicant to revise his plans. The actual acreage in the R-3-2000 zone is considerably less than the 50.5 acres shown in these plans. The plans have not been resubmitted, therefore, it is not known at this time what the exact amount of acreage is involved in the proposed project, nor is it known how many units the applicant will propose to build. The property is located within the Highland area plan, the plan designation for this area is now -medium density- or 8 to 14 dwelling units per net acre. ~-~ 7kw~ , o o o o Steve Marks September 8, 1986 Page Two The applicant contepds that there was some type of an agreement at the time of the annexation that all of his property could be developed to the then existing R-3 standards. The applicant has not provided any documentation of such an agreement. Planning staff bas researched its archives and also have found no record of any agreement between the City and the developer other than the fact that some portion of the property was zoned R-3. There are two pending land use actions which would have a significant impact upon the redesign of Review of Plans 86-51. First the development standards in the R-3 zone are proposed to be substantially modified. This proposal was on the Council's Agenda on August 18, 1986, and was continued. Since the applicant has not resubmitted it this time, it is difficult to say what impact the new R-3 standards would have~ however, the new R-3 standards contain height limits, requirements for distances between buildings, and requirements for open space which would substantially affect the original plan as submitted for 594 dwelling units. Planning staff believes the original proposal of 594 dwelling units could not be built under the new R-3 standards, even if the figure of 50.5 acres had been correct. In addition, a revision to the Highland area plan is also under preparation. Onder this proposal, the land use classification for this site could be .Foothill- which proposes a density of 0 to 3 dwelling units per acre depending upon the average slope of the property. There is no time frame for the adoption of the Highland area plan. Both of the amendments to the R-3 development standards and the revision of the Highland area plan are long range, comprehensive, and have been underway for a long time. ANALYSIS Zoning is a legislative act. Merely imposing a zoning designation on a parcel or parcels without more does not confer any kind of vested right to develop and gives no assurance to a developer that subsequent zoning changes will not be legislated. There is no evidence of any kind of agreement at the time of annexation to preserve the existing zoning. . o o o o Steve Marks September 8, 1986 Page Three The only way a deve10per can perfect a vested right would be to file a vested tentative map (and this option only became available on January 1, 1986) or to actually make substantial expenditures in good faith reliance upon a final approval and issuance of the requisite permits. It has been held that the term .substantial expenditures. has connotations of both quality and comparison. Aries DeveloDment ComDaQv v. California Co..tal Zona Conservation Commission (1975) 48 Cal.App.3d 534. For example, in the case of a relatively small project, comparing the amount of construction expenditures and liability (e.g. debt) to the total project cost would be an appropriate teat of .substantiality.. In other words, .substantial. is determined in proportion to total project cost. In Oceanic v. Central Coastal co_ission (1976) 63 Cal.App.3d 57, 133 Cal.Rptr. 664, an expenditure of $27 million did not entitle developer to a vested right under Coastal Co_ission regulations. The second element of a vested right is that the developer proceeded in good faith. This means that the developer or owner of property acquires a vested right to construct only where the conduct of the government amounts to representation that such construction is fully approved and legal, and the developer has legitimately relied on such representation. In the Aries case cited above, the court found uncontradicted facts that led to the conclusion that the work performed by Aries was not done in good faith, in fact, that Aries entertained substantial doubts about its legal position and that Aries had speeded up its time table in a calculated l,!:f..rt to escape impending changes in land use controls at the [.tate level. The Aries case impliedly determined that good faith on behalf of the developer is present if the developer has been proceeding diligently in preparing an Environmental Impact Report, securing architectural and engineering plans, obtaining other governmental agency approvals, and performing substantial work before the change in regulations. The developer cannot secure a vested right against subsequent changes in zoning regulations, no matter how great his expenditures, unless he has obtained a building permit before the effective date of the regulation. With respect to the good faith of the public.agency, the court will consider the purpose and intent of the proposed zoning regulation, that is, is it a part of the comprehensive scheme b. " o o o o Steve Marks September 8, 1986 Page Four of regulation pursuant to the General Plan, or is it a hasty change focused too much upon the individual property in question. Atlantic Richfield Co. v. Board of Suoervisors (1974) 40 Cal.App.3i 1(l59. The City has the authority to adopt interim urgency ordinances while it is contemplating revisions to its zoning or general plan. Section 65858 of the Government Code permits a local agency to adopt interim urgency zoning ordinances. Under this Section, the local agency may adopt as an urgency measure an interim ordinance prohibiting, for 45 days and after notice and hearing for longer periods, any use which may be in conflict with the contemplated general plan, specific plan, or zoning proposal which the local legislative body is studying or intends to study within a reasonable time. Such an urgency ordinance requires a majority vote of four-fifths (4/5ths) of the legislative body for adoption. In the case of our City Council, a concurrence of five Council members is required. CONCLUSIOIi There is no evidence that- the applicant for the Review of Plans 86-51 has perfected any vested right to develop the property under the current R-3 standards. Under the terms of Government Code Section 65858, the Council could adopt an interim urgency ordinance establishing a zoning moratorium during a land use prohibiting administrative approval of a project inconsistent with the pending R-3 development standards. Alternatively, the Council could adopt an interim urgency ordinance that no development plan be approved which does not conform with the proposed land use classification in the new Highland area plan. Therefore, the City could in good faith seek to maintain the status quo while these long-term legislative objectives are being studied. Respectfully submitted, ~~ V-vUi/ CYNTHIA GRACE Deputy City Attorney CG:nb cc: Mayor City Administrator City Clerk Approved: /'~;tPP~ City A torney