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