HomeMy WebLinkAbout2020-09-01; City Council; ; Update to the City’s Density Bonus Regulations to Reflect Changes in State Law Case Name: Density Bonus Amendments 2020 Case No.: ZCA 2020-0001/ LCPA 2020-0005 Meeting Date:
Sept. 1, 2020
To: Mayor and City Council
From: Scott Chadwick, City Manager
Staff Contact: Corey Funk, Associate Planner
corey.funk@carlsbadca.gov, 760-434-4645
Subject: Update to the City’s Density Bonus Regulations to Reflect Changes in
State Law
Case Name:
Density Bonus Amendments 2020
Case No.: ZCA 2020-0001/ LCPA 2020-0005
Recommended Action
Hold a public hearing and introduce an ordinance adopting a zoning code amendment (ZCA
2020-0001) and Local Coastal Program amendment (LCPA 2020-0005) to update the city’s
density bonus regulations to reflect changes in state law.
Executive Summary
This is a city-initiated amendment to the Carlsbad Municipal Code and Local Coastal Program to
update the city’s density bonus regulations to reflect changes in state law.
The proposed amendments repeal Chapter 21.86, density bonus housing standards, and
replace it with the proposed ordinance attached as Exhibit 1. The Planning Commission voted
unanimously June 17, 2020, to recommend City Council approval of the amendments and the
Municipal Code and City Council Policy Update Subcommittee directed on July 22, 2020, that
the proposed amendments be forwarded to the City Council, along with the answers to
procedural questions that have been addressed in this staff report.
This item is being brought to the City Council because amendments to the zoning code and local
coastal program must be approved by the council under to Carlsbad Municipal Code Section
21.52.050.
Discussion
Background
State density bonus law (Government Code Section 65915, attached as Exhibit 3) allows a
developer to increase density on a property above the maximum limit set by a city’s local
general plan. In addition, qualifying applicants can also receive reductions in required
development standards such as setbacks, height limits and parking requirements when such
deviations are necessary to achieve the density allowed under state law. In exchange for a
density increase, a developer must reserve a certain number of the new dwelling units reserved
Sept. 1, 2020 Item #5 Page 1 of 194
for very low, low, or moderate-income households, or for other qualifying housing types such
as senior housing, for a period of not less than 55 years.
The requirement for a local density bonus ordinance is stipulated in the state’s density bonus
law as follows:
§65915(a)(1): “A city…shall adopt an ordinance that specifies how
compliance with this section will be implemented. Failure to adopt an
ordinance shall not relieve a city… from complying with this section.”
It is important to note that a jurisdiction may not enact local laws that conflict with state law or
prohibit what the legislature intended to authorize.1
Because the city is compelled to comply with state density bonus allowances, and given the
statute above, the city’s density bonus ordinance should focus more on the permit processing
requirements for density bonus applications, and not just be a copy of the state law. Staff is
proposing to remove code language that repeats state mandates, just referencing the state
codes instead, while introducing requirements and standards for processing and reviewing
applications. Referring to state law on density bonus standards will also help reduce the need
to regularly update the city’s ordinance when the state makes changes to the law, which has
been occurring on an annual basis over the past several years.
Changes in state law
Assembly Bill 1763, effective January 1, 2020, amends Section 65915 to help reduce costs
associated with the development of affordable housing. The three main changes enacted by AB
1763 are: 2
• Existing density bonus law provides developers up to a 35% increase in project densities,
set on a sliding scale based on the amount of affordable housing provided. For housing
projects where 100% of the units are affordable to low and very low-income residents, AB
1763 more than doubles the density bonus to 80%. Additionally, projects that are 100%
affordable and located within a half mile of a major transit stop are allowed a height
increase above existing zoning height limits of up to an additional three stories or 33 feet.
• Under existing density bonus law, projects qualifying for a density bonus are currently
entitled to up to three incentives and concessions, depending on the number of affordable
units provided. AB 1763 provides for a fourth incentive and concession for 100% affordable
projects.
• Existing density bonus law also establishes special parking ratio requirements for qualifying
projects. For housing projects that qualify as a special needs or supportive housing
development, AB 1763 eliminates all local parking requirements.
1Cal Const Art XI, Section 7; Northern Cal. Psychiatric Soc’y v. City of Berkeley (1986) 178 CA 3d 90
3 CMC §20.04.020 & §20.12.090 (subdivisions); §21.45.050.B & §21.45.050 Table B (planned development permits); and, §21.53.120 &
§21.06.070 (site development permits).
Sept. 1, 2020 Item #5 Page 2 of 194
Proposed ordinance
The proposed ordinance found in Exhibit 1 complies with the requirements of state density
bonus law and can be summarized as follows.
•The ordinance amendment is required as part of the city’s Housing Element Program 3.3,
which requires that the city promote the use of current density bonus allowances to help
facilitate the development of housing for low- and very low-income households.
Completing this requirement is important to show program compliance to the state
Department of Housing and Community Development as the city proceeds with the latest
update of the city’s Housing Element.
•The ordinance amendment captures changes made in state density bonus law by AB 1763.
(Compliance with the city’s Growth Management Plan is evaluated by staff on a case-by-
case basis for projects whose developers request a density bonus.)
•Over the past several years, the state legislature has made several modifications to density
bonus law to encourage the development of more affordable housing. More changes are
expected in the coming years. These state-initiated modifications often require annual
changes and updates to the city’s local code. The proposed ordinance focuses more on the
city’s permit processing requirements for density bonus applications, while deferring to the
state law on density bonus requirements and allowances. This will help reduce the need to
process local code amendments if state law changes in the future.
•Educational materials, specifically, a department information bulletin, have also been
prepared to help customers navigate density bonus law and city processing requirements
(Exhibit 4). Staff can update this bulletin as future changes to state law occur. The bulletin
incudes these sections:
o Density Bonus Information Bulletin
The main section of this bulletin outlines the city’s development and processing
requirements to receive the benefits provided for under state law in simple direct
terms and includes the following topics: project eligibility; applicant permitting
requirements; explanation on how density bonus is calculated; what qualifies as
concessions, incentives, or waivers; and the findings the city must make to deny a
concession, incentive, or waiver.
o Density Bonus Supplemental Checklist
This supplemental application checklist is new for city applicants and will be required
to be completed for all density bonus applications being processed under Government
Code Section 65915. This helps staff and the public better understand how density
bonus law is being applied to the project and why requested standards need to be
waived to ensure that the project follows state law.
o Density Bonus Calculation Chart
This chart provides the specific density bonuses to be awarded, in keeping with state
law, in relation to the affordable housing type in one easy-to-read location. (The
Sept. 1, 2020 Item #5 Page 3 of 194
bonus awards in the state density bonus law are not centrally located, making them
difficult for customers to find.)
Commission and subcommittee reviews
The proposed amendments were considered by the Planning Commission, the Airport Land Use
Commission and the City Council Carlsbad Municipal Code and Policy Update Subcommittee.
Their actions are summarized below.
Planning Commission
The Planning Commission conducted a public hearing on June 17, 2020, and
unanimously recommended approval (7-0) of the zone code amendment and Local
Coastal Program amendment to the City Council. No public comments were submitted
to the city or received at the Planning Commission hearing (Exhibits 5-7).
Airport Land Use Commission
The proposed amendments affect land within the airport influence area, which covers a
large portion of Carlsbad and includes residential properties. The Airport Land Use
Commission, the San Diego County Regional Airport Authority, reviewed the
amendment May 20, 2020, and found it to be consistent with the McClellan-Palomar
Airport Land Use Compatibility Plan (Exhibit 8). It should be noted that during review of
the city’s proposed amendments, the Airport Land Use Commission received a comment
letter asking for a continuance for the item until the Airport Land Use Compatibility Plan
could be updated to reflect the most recent Airport Master Plan for McClellan-Palomar
Airport. A copy of the comment letter to the Airport Land Use Commission and city
staff’s response can be found in Exhibit 9.
City Council Carlsbad Municipal Code and Policy Update Subcommittee
On July 22, 2020, this City Council subcommittee considered the proposed edits and
educational materials and generally supported the approach to revise the ordinance to
focus more on process while deferring as much as possible to the state law on
allowances and standards. Questions were raised about the amount of latitude given to
cities to deviate from state law. Staff confirmed that cities do not have the legal
authority to adopt rules that are more restrictive than state law. Their authority is
largely limited to procedural matters and to adopting regulations that provide more
flexibility and allowances than state law allows.
Questions were also raised by members of the subcommittee about whether, under
current decision-making procedures, a density bonus application that includes a waiver,
concession or incentive that allows a deviation of the development standards could be
approved administratively (that is, by the city planner), The short answer is no. State
density bonus law and the ability to receive a waiver, concession or incentive only
applies to developers of housing projects proposing five or more dwelling units. Under
Carlsbad Municipal Code.3, the decision-making body for any multi-unit residential
development project that proposes five or more dwelling units is the Planning
3 CMC §20.04.020 & §20.12.090 (subdivisions); §21.45.050.B & §21.45.050 Table B (planned development permits); and, §21.53.120 &
§21.06.070 (site development permits).
Sept. 1, 2020 Item #5 Page 4 of 194
Commission, while the city planner is the decision-maker for projects proposing four or
fewer units.
Fiscal Analysis
There is no anticipated fiscal impact from this item.
Next Steps
Following the City Council’s introduction of the ordinance, it will be scheduled at the City
Council’s next meeting for adoption. The amendments to the city zoning code will become
effective 30 days after adoption outside of the Coastal Zone. Inside the Coastal Zone, the
amendments will become effective when the California Coastal Commission approves the Local
Coastal Program Amendment. Staff will submit an application to the California Coastal
Commission for the Local Coastal Program Amendment following City Council adoption of the
ordinance.
Environmental Evaluation (CEQA)
The city finds that the proposed amendments to the Zone Code are exempt from
environmental review pursuant to the common sense exemption, Section 15061(b)(3) of the
California Environmental Quality Act Guidelines, because there would be no possibility of them
having a significant effect on the environment. The ordinance being considered specifies how
the city will comply with and implement state density bonus law, and adoption is required
pursuant to Government Code Section 65915(a). The density bonuses, incentives and waivers
permitted by the ordinance are required by state law, and this ordinance does not permit any
density bonuses, incentives, or waivers other than those required by state law.
Public Notification
This amendment has been posted online since May 15, 2020. In addition, a six-week public
review period for the Local Coastal Program Amendment began on May 15, 2020, and ended on
July 21, 2020. Public notice of this item was posted in keeping with the Ralph M. Brown Act and
it was available for public viewing and review at least 72 hours before the scheduled meeting
date.
Exhibits
1.City Council ordinance
2.Proposed revisions to the proposed amendments
3.Government Code Section 65915
4.Community Development Informational Bulletin – Density Bonus
5.Planning Commission Staff Report, dated June 17, 2020
6.Planning Commission Resolution No. 7373
7.Planning Commission Minutes, dated June 17, 2020
8.Airport Land Use Commission consistency determination, dated May 20, 2020
9.Public comment letter to Airport Land Use Commission, with city staff response
Sept. 1, 2020 Item #5 Page 5 of 194
EXHIBIT 1
ORDINANCE NO. CS-382
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF CARLSBAD,
CALIFORNIA, ADOPTING A ZONE CODE AMENDMENT AND A LOCAL
COASTAL PROGRAM AMENDMENT TO UPDATE THE CITY'S DENSITY BONUS
REGULATIONS TO REFLECT CHANGES IN STATE LAW.
CASE NAME: DENSITY BONUS AMENDMENTS 2020
CASE NO: ZCA 2020-0001/LCPA 2020-0005
WHEREAS, Sections 65915 — 65918 of the California Government Code, known as State Density
Bonus Law, requires a city or county to provide a developer that proposes a housing development within
the jurisdictional boundaries of that city or county with a density bonus and other incentives or
concessions for the production of lower income housing units, or for the donation of land within the
development, if the developer agrees to construct a specified percentage of units for very low income,
low-income, or moderate-income households or qualifying residents and meets other requirements.
WHEREAS, on Oct. 9, 2019, California Governor Gavin Newsom signed Assembly Bill 1763 ("AB
1763") into law, which amended Section 65915 to further encourage and incentivize the application of
State Density Bonus Law; and
WHEREAS, SB 1763 took effect Jan. 1, 2020, and existing provisions of the City of Carlsbad
Municipal Code are inconsistent with the new law provisions; and
WHEREAS, California Government Code Section 65915(a) requires that all cities adopt an
ordinance that specifies how compliance with State Density Bonus Law will be implemented; and
WHEREAS, staff has prepared a Zone Code Amendment ZCA 2020-0001 and Local Coastal
Program Amendment LCPA2020-0005 pursuant to Chapter 21.52 of the Carlsbad Municipal Code,
Section 30514 of the Public Resources Code, and Section 13551 of California Code of Regulations Title
14, Division 5.5; and,
WHEREAS, the Carlsbad Zone Code is the implementing ordinance of the Carlsbad Local Coastal
Program, and therefore, an amendment to the Zone Code also constitutes an amendment to the Local
Coastal Program; and
WHEREAS, pursuant to California Coastal Commission Regulations, a six-week public review
period for the Local Coastal Program Amendment began on May 15, 2020 and ended on June 26, 2020;
and
Sept. 1, 2020 Item #5 Page 6 of 194
WHEREAS, on May 20, 2020, the Airport Land Use Commission reviewed and found the proposed
Zone Code Amendment consistent with the adopted McClellan-Palomar Airport Land Use Compatibility
Plan; and
WHEREAS, on June 17, 2020, the Planning Commission held a duly noticed public hearing as
prescribed by law to consider ZCA 2020-0001/LCPA 2020-0005; and
WHEREAS, the Planning Commission adopted Planning Commission Resolution No. 7373
recommending to the City Council that ZCA 2020-0001/LCPA 2020-0005 be approved; and
WHEREAS, the City Council of the City of Carlsbad held a duly noticed public hearing as prescribed
by law to consider ZCA 2020-0001/LCPA 2020-0005; and
WHEREAS, at said public hearing, upon hearing and considering all testimony and arguments, if
any, of all persons desiring to be heard, the City Council considered all factors, including written public
comments, if any, related to ZCA 2020-0001/LCPA 2020-0005; and
NOW THEREFORE, the City Council of the City of Carlsbad, California, ordains as follows that:
1. The above recitations are true and correct.
2. The findings of the Planning Commission in Planning Commission Resolution No.
7373 shall also constitute the findings of the City Council.
3. Chapter 21.86 of the Carlsbad Municipal Code is hereby repealed and replaced to
read as follows:
Chapter 21.86 DENSITY BONUS
21.86.010 Purpose.
The public good is served when there exists in a city, housing which is appropriate for the needs of and
affordable to the public who reside within that city. There is in the City of Carlsbad a need for housing
affordable to various groups, such as lower income, moderate income and senior citizen households.
Therefore, it is in the public interest for the city to promote the construction of such additional housing
through the exercise of its powers and utilization of its resources to facilitate the development of quality
housing affordable for these types of households.
A. It is the purpose of this section to specify how compliance with Government Code Section 65915
et seq. ("State Density Bonus Law") will be implemented, as required by Government Code
Section 65915, subdivision (a).
B. It is the purpose of this section to implement the goals, objectives and policies of the Housing
Element of the city's General Plan.
Sept. 1, 2020 Item #5 Page 7 of 194
C. It is the purpose of this section to provide the implementing framework, as it relates to affordable
housing density bonuses, and offer concessions and incentives for eligible housing developments
which are consistent with the city's long-standing commitment to provide for affordable housing.
21.86.020 Definitions.
The definitions found in State Density Bonus Law shall apply to the terms contained in this section.
21.86.030 Applicability.
A housing development as defined in State Density Bonus Law shall be eligible for a density bonus and
other regulatory incentives that are provided by State Density Bonus Law when the applicant seeks and
agrees to provide very-low, low or moderate income housing units, or units intended to serve seniors,
transitional foster youth, disabled veterans, homeless persons, and lower income students in the
threshold amounts specified in State Density Bonus Law. A housing development includes only the
residential component of a mixed-use project. A commercial development as defined in Section
21.86.110 shall be eligible for a commercial development bonus as provided in Section 21.86.110.
The granting of a density bonus, incentive or concession, pursuant to this section, shall not be
interpreted, in and of itself, to require a general plan amendment, development code amendment, zone
change, other discretionary approval, or the waiver of a city ordinance or provisions of a city ordinance
unrelated to development standards.
21.86.040 Application Requirements.
A. Any applicant requesting a density bonus and any incentive(s), waiver(s), parking reductions, or
commercial development bonus provided by State Density Bonus Law shall submit a density
bonus report as described below concurrently with the filing of the planning application for the
first discretionary permit required for the housing development, commercial development, or
mixed-use development. The requests contained in the density bonus report shall be processed
concurrently with the planning application. The applicant shall be informed whether the
application is complete consistent with California Government Code Section 65943.
B. The density bonus report shall include the following minimum information:
1. Requested Density Bonus.
a. Summary table showing the maximum number of dwelling units permitted by the
zoning and general plan excluding any density bonus units, proposed affordable
units by income level, proposed bonus percentage, number of density bonus units
proposed, total number of dwelling units proposed on the site, and resulting
density in units per acre.
Sept. 1, 2020 Item #5 Page 8 of 194
b. A tentative map and/or preliminary site plan, drawn to scale, showing the number
and location of all proposed units, designating the location of proposed affordable
units and density bonus units.
c. The zoning and general plan designations and assessor's parcel number(s) of the
housing development site.
d. A description of all dwelling units existing on the site in the five-year period
preceding the date of submittal of the application and identification of any units
rented in the five-year period. If dwelling units on the site are currently rented,
income and household size of all residents of currently occupied units, if known.
If any dwelling units on the site were rented in the five-year period but are not
currently rented, the income and household size of residents occupying dwelling
units when the site contained the maximum number of dwelling units, if known.
e. Description of any recorded covenant, ordinance, or law applicable to the site that
restricted rents to levels affordable to very-low or lower income households in the
five-year period preceding the date of submittal of the application.
. If a density bonus is requested for a land donation, the location of the land to be
dedicated, proof of site control, and reasonable documentation that each of the
requirements included in California Government Code Section 65915, subdivision
(g) can be met.
2. Requested Concession(s) or Incentive(s).
In the event an application proposes concessions or incentives for a housing development
pursuant to State Density Bonus Law, the density bonus report shall include the following
minimum information for each incentive requested, shown on a site plan if appropriate:
a. The City's usual development standard and the requested development standard
or regulatory incentive.
b. Except where mixed-use zoning is proposed as a concession or incentive,
reasonable documentation to show that any requested incentive will result in
identifiable and actual cost reductions to provide for affordable housing costs or
rents.
c. If approval of mixed-use zoning is proposed, reasonable documentation that
nonresidential land uses will reduce the cost of the housing development, that the
nonresidential land uses are compatible with the housing development and the
existing or planned development in the area where the proposed housing
development will be located, and that mixed-use zoning will provide for affordable
housing costs or rents.
Sept. 1, 2020 Item #5 Page 9 of 194
3. Requested Waiver(s).
In the event an application proposes waivers of development standards for a housing
development pursuant to State Density Bonus Law, the density bonus report shall include
the following minimum information for each waiver requested on each lot, shown on a
site plan if appropriate:
a. The City's usual development standard and the requested development standard.
b. Reasonable documentation that the development standards for which a waiver is
requested will have the effect of physically precluding the construction of a
development at the densities or with the concessions or incentives permitted by
California Government Code Section 65915.
4. Requested Parking Reduction.
In the event an application proposes a parking reduction for a housing development
pursuant to California Government Code Section 65915, subdivision (p), a table showing
parking required by the zoning regulations, parking proposed under Section 65915,
subdivision (p), and reasonable documentation that the project is eligible for the
requested parking reduction.
5. Child Care Facility.
If a density bonus or incentive is requested for a child care facility in a housing
development, reasonable documentation that all of the requirements included in
California Government Code Section 65915, subdivision (h) can be met.
6. Condominium Conversion.
If a density bonus or incentive is requested for a condominium conversion, reasonable
documentation that all of the requirements included in California Government Code
Section 65915.5 can be met.
7. Commercial Development Bonus.
If a commercial development bonus is requested for a commercial development, the
application shall include the proposed partnered housing agreement and the proposed
commercial development bonus, as defined in Section 21.86.110, and reasonable
documentation that each of the standards included in Subsection 21.86.110(C) has been
met.
Sept. 1, 2020 Item #5 Page 10 of 194
8. Fee.
Payment of any fee in an amount set by resolution of the City Council for staff time
necessary to determine compliance of the Density Bonus Plan with State Density Bonus
Law.
21.86.050 Density Bonus.
All calculations are rounded up for any fractional numeric value in determining the total number of units
to be granted, including base density and bonus density as well as the resulting number of affordable
units needed for a given density bonus project.
A. If a housing development qualifies for a density bonus under more than one income category, or
additionally as a senior citizen housing development as defined in Chapter 21.84 and State
Density Bonus Law, or as housing intended to serve transitional foster youth, disabled veterans,
homeless persons, or lower income students, the applicant shall identify the categories under
which the density bonus would be associated and granted. Density bonuses from more than one
category can be combined up to the maximum allowed under State Density Bonus law.
B. The density bonus units shall not be included in determining the number of affordable units
required to qualify a housing development for a density bonus pursuant to State Density Bonus
Law.
C. The applicant may elect to accept a lesser percentage of density bonus than the housing
development is entitled to, or no density bonus, but no reduction will be permitted in the
percentages of required affordable units contained in California Government Code Section
65915, subdivisions (b), (c), and (f). Regardless of the number of affordable units, no housing
development shall be entitled to a density bonus of more than what is authorized under State
Density Bonus Law.
21.86.060 Incentives.
A. Incentives include incentives and concessions as defined in State Density Bonus Law. The number
of incentives that may be requested shall be based upon the number the applicant is entitled to
pursuant to State Density Bonus Law.
B. Nothing in this section requires the provision of direct financial incentives for the housing
development, including, but not limited to, the provision of financial subsidies, publicly owned
land, fee waivers, or waiver of dedication requirements. The city, at its sole discretion, may
choose to provide such direct financial incentives.
Sept. 1, 2020 Item #5 Page 11 of 194
21.86.070 Local Coastal Program Consistency.
A. State Density Bonus Law provides that it shall not be construed to supersede or in any way alter
or lessen the effect or application of the California Coastal Act of 1976 (Cal. Public Resources
Code § 30000 et seq.), and further provides that the granting of a density bonus or an incentive
shall not be interpreted, in and of itself, to require a local coastal plan amendment.
B. For development within the coastal zone, any requested density bonus, incentive(s), waiver(s),
parking reduction(s), or commercial development bonus shall be consistent with all applicable
requirements of the certified Carlsbad Local Coastal Program, with the exception of density.
21.86.080 Review Procedures.
All requests for density bonuses, incentives, parking reductions, waivers, or commercial development
bonuses shall be considered and acted upon by the approval body with authority to approve the
development within the timelines prescribed by California Government Code Section 65950 et seq., with
right of appeal to the City Council.
A. Eligibility for Density Bonus, Incentive(s), Parking Reduction, and/or Waiver(s) for a Housing
Development. To ensure that an application for a housing development conforms with the
provisions of State Density Bonus Law and the Coastal Act, the staff report presented to the
decision-making body shall state whether the application conforms to the following
requirements of state law as applicable:
1. The housing development provides the affordable units or senior housing required by
State Density Bonus Law to be eligible for the density bonus and any incentives, parking
reduction, or waivers requested, including the replacement of units rented or formerly
rented to very-low and low income households as required by California Government
Code Section 65915, subdivision (c)(3).
2. Any requested incentive will result in identifiable and actual cost reductions to provide
for affordable housing costs or rents; except that, if a mixed-use development is
requested, the application must instead meet all of the requirements of California
Government Code Section 65915, subdivision (k)(2).
3. The development standards for which a waiver is requested would have the effect of
physically precluding the construction of a development at the densities or with the
concessions or incentives permitted by California Government Code Section 65915.
4. The housing development is eligible for any requested parking reductions under California
Government Code Section 65915, subdivision (p).
5. If the density bonus is based all or in part on donation of land, all of the requirements
included in California Government Code Section 65915, subdivision (g) have been met.
Sept. 1, 2020 Item #5 Page 12 of 194
6. If the density bonus or incentive is based all or in part on the inclusion of a child care
facility, all of the requirements included in California Government Code Section 65915,
subdivision (h) have been met.
7. If the density bonus or incentive is based all or in part on the inclusion of affordable units
as part of a condominium conversion, all of the requirements included in California
Government Code Section 65915.5 have been met.
8. If the housing development is in the coastal zone, the requested density bonus and any
requested incentive(s), waiver(s), or parking reduction(s) are consistent with all
applicable requirements of the certified Carlsbad Local Coastal Program, with the
exception of density.
B. If a commercial development bonus is requested for a commercial development, the decision-
making body shall make a finding that the development complies with all of the requirements
of Subsection 21.86.110(C), that the city has approved the partnered housing agreement, and
that the commercial development bonus has been mutually agreed upon by the city and the
commercial developer. If the project is in the coastal zone, the decision-making body shall also
find that the commercial development bonus is consistent with all applicable requirements of
the certified Carlsbad Local Coastal Program, with the exception of density.
C. The decision-making body shall grant an incentive requested by the applicant unless it makes a
written finding, based upon substantial evidence, of any of the following:
1. The proposed incentive does not result in identifiable and actual cost reductions to
provide for affordable housing costs, as defined in California Health and Safety Code
Section 50052.5, or for affordable rents, as defined in California Health and Safety Code
Section 50053; or
2. The proposed incentive would be contrary to state or federal law; or
3. The proposed incentive would have a specific, adverse impact upon public health or safety
or the physical environment or on any real property that is listed in the California Register
of Historic Resources, and there is no feasible method to satisfactorily mitigate or avoid
the specific adverse impact without rendering the housing development unaffordable to
low and moderate income households. For the purpose of this subsection, 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 that the application for the housing development was deemed
complete.
D. The decision-making body shall grant the waiver of development standards requested by the
applicant unless it makes a written finding, based upon substantial evidence, of any of the
following:
Sept. 1, 2020 Item #5 Page 13 of 194
1. The proposed waiver would be contrary to state or federal law; or
2. The proposed waiver would have an adverse impact on any real property listed in the
California Register of Historic Resources; or
3. The proposed waiver would have a specific, adverse impact upon public health or safety
or the physical environment, and there is no feasible method to satisfactorily mitigate or
avoid the specific adverse impact without rendering the housing development
unaffordable to low and moderate income households. For the purpose of this
subsection, 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 that the application for the
housing development was deemed complete.
E. If any density bonus, incentive, parking reduction, waiver, or commercial development bonus is
approved pursuant to this chapter, the applicant shall enter into an affordable housing
agreement or senior housing agreement with the city pursuant to Section 21.86.090.
21.86.090 Affordable Housing Agreement and Senior Housing Agreement.
A. Affordable Housing Agreement. Except where a density bonus, incentive, waiver, parking
reduction, or commercial development bonus is provided for a market-rate senior housing
development, the applicant shall enter into an affordable housing agreement with the city, in a
form approved by the city attorney, to be executed by the city manager, to ensure that the
requirements of this section are satisfied. The affordable housing agreement shall guarantee the
affordability of the affordable units for a minimum of 55 years or a longer period of time if
required by the construction or mortgage financing assistance program, mortgage insurance
program, or rental subsidy program; shall identify the type, size and location of each affordable
unit; and shall specify phasing of the affordable units in relation to the market-rate units.
B. Senior Housing Agreement. Where a density bonus, waiver, or parking reduction is provided for
a market-rate senior housing development, the applicant shall enter into a restrictive covenant
with the city, running with the land, in a form approved by the city attorney, to be executed by
the city manager, to require that the housing development be operated as "housing for older
persons" consistent with state and federal fair housing laws.
C. The executed affordable housing agreement or senior housing agreement shall be recorded
against the housing development prior to final or parcel map approval, or, where a map is not
being processed, prior to issuance of building permits for the housing development. The
affordable housing agreement or senior housing agreement shall be binding on all future owners
and successors in interest.
D. The affordable housing agreement shall include, but not be limited to, the following:
1. The number of density bonus dwelling units granted;
Sept. 1, 2020 Item #5 Page 14 of 194
2. The number and type of affordable dwelling units
3. The unit size(s) (square footage) of target dwelling units and the number of bedrooms per
target dwelling unit;
4. The proposed location of the affordable dwelling units;
5. Schedule for production of affordable dwelling units;
6. Incentives or concessions or waivers provided by the city;
7. Where applicable, tenure and conditions governing the initial sale of the affordable units;
8. Where applicable, tenure and conditions establishing rules and procedures for qualifying
tenants, setting rental rates, filling vacancies, and operating and maintaining units for
affordable rental dwelling units
9. Marketing plan; publication and notification of availability of affordable units;
10. Compliance with federal and state laws;
11. Prohibition against discrimination;
12. Indemnification;
13. City's right to inspect units and documents;
14. Remedies.
21.86.100 Design and Quality.
A. The city may not issue building permits for more than 50 percent of the market rate units until it
has issued building permits for all of the affordable units, and the city may not approve any final
inspections or certificates of occupancy for more than 50 percent of the market rate units until
it has issued final inspections or certificates of occupancy for all of the affordable units.
B. Affordable units shall be comparable in exterior appearance and overall quality of construction
to market rate units in the same housing development. Interior finishes and amenities may differ
from those provided in the market rate units, but neither the workmanship nor the products may
be of substandard or inferior quality as determined by the city.
C. The number of bedrooms of the affordable units shall at least equal the minimum number of
bedrooms of the market rate units.
21.86.110 Commercial Density Bonus.
A. The following definitions shall apply to Commercial Density Bonus:
Sept. 1, 2020 Item #5 Page 15 of 194
1. "Commercial development" means a development project for nonresidential uses.
2. "Commercial development bonus" means a modification of development standards
mutually agreed upon by the city and a commercial developer and provided to a
commercial development eligible for such a bonus under Subsection 21.86.110(C).
Examples of a commercial development bonus include an increase in floor area ratio,
increased building height, or reduced parking.
3. "Partnered housing agreement" means an agreement approved by the city between a
commercial developer and a housing developer identifying how the commercial
development will provide housing available at affordable ownership cost or affordable
rent consistent with Subsection 21.86.110(C). A partnered housing agreement may
consist of the formation of a partnership, limited liability company, corporation, or other
entity recognized by the state in which the commercial developer and the housing
developer are each partners, members, shareholders, or other participants, or a contract
between the commercial developer and the housing developer for the development of
both the commercial development and the housing development.
B. When an applicant proposes to construct a commercial development and has entered into a
partnered housing agreement approved by the city, the city shall grant a commercial
development bonus mutually agreed upon by the developer and the city. The commercial
development bonus shall not include a reduction or waiver of fees imposed on the commercial
development to provide for affordable housing.
C. The requirements for commercial development bonus are as follows, which also be described in
the partnered housing agreement:
1. The housing development shall be located either: (A) on the site of the commercial
development; or (B) on a site within the city that is within one-half mile of a major transit
stop and is located in close proximity to public amenities, including schools and
employment centers.
2. At least 30 percent of the total units in the housing development shall be made available
at affordable ownership cost or affordable rent for low-income households, or at least 15
percent of the total units in the housing development shall be made available at
affordable ownership cost or affordable rent for very low-income households.
3. The commercial developer must agree either to directly build the affordable units; donate
a site consistent with subparagraph 1 above for the affordable units; or make a cash
payment to the housing developer for the affordable units.
D. Any approved partnered housing agreement shall be described in the city's Housing Element
annual report as required by California Government Code Section 65915.7, subdivision (k).
Sept. 1, 2020 Item #5 Page 16 of 194
21.86.120 Interpretation.
If any portion of this chapter conflicts with State Density Bonus Law or other applicable state law, state
law shall supersede this chapter. Any ambiguities in this chapter shall be interpreted to be consistent
with State Density Bonus Law.
21.86.130 Inclusionary housing.
All housing development projects are required to provide affordable housing units in accordance with
Chapter 21.85, Inclusionary Housing, of this title. If an applicant seeks to construct affordable housing
to qualify for a density bonus in accordance with the provisions of this chapter, those affordable
dwelling units provided to meet the inclusionary requirement established pursuant to Chapter 21.85 of
this title shall be counted toward satisfying the density bonus requirements of this chapter.
21.86.140 Severability.
If any provision of this chapter or its application to any person or circumstances is held invalid, the
remainder of the chapter and the application of the provision to other persons not similarly situated or
to other circumstances shall not be affected. (Ord. CS-102 § CXVI, 2010; Ord. NS-794 § 11, 2006)
EFFECTIVE DATE OF THIS ORDINANCE APPLICABLE TO PROPERTIES OUSTIDE THE COASTAL ZONE:
This ordinance shall be effective thirty days after its adoption; and the City Clerk shall certify the adoption
of this ordinance and cause the full text of the ordinance or a summary of the ordinance prepared by
the City Attorney to be published at least once in a newspaper of general circulation in the City of
Carlsbad within fifteen days after its adoption.
EFFECTIVE DATE OF THIS ORDINANCE APPLICABLE TO PROPERTIES INSIDE THE COASTAL ZONE:
This ordinance shall be effective thirty days after its adoption or upon Coastal Commission approval of
LCPA 2020-0005, whichever occurs later; and the City Clerk shall certify the adoption of this ordinance
and cause the full text of the ordinance or a summary of the ordinance prepared by the City Attorney to
be published at least once in a newspaper of general circulation in the City of Carlsbad within fifteen
days after its adoption.
Sept. 1, 2020 Item #5 Page 17 of 194
INTRODUCED AND FIRST READ at a Regular Meeting of the Carlsbad City Council on the 1st day
of September, 2020, and thereafter
PASSED, APPROVED AND ADOPTED at a Regular Meeting of the City Council of the City of Carlsbad
on the _ day of , 2020, by the following vote, to wit:
AYES:
NAYS:
ABSENT:
APPROVED AS TO FORM AND LEGALITY:
CELIA A. BREWER, City Attorney
MATT HALL, Mayor
BARBARA ENGLESON, City Clerk
(SEAL)
Sept. 1, 2020 Item #5 Page 18 of 194
ZCA 2020-0001/ LCPA 2020-0005 – Density Bonus Amendments 2020
Proposed revisions to Carlsbad Municipal Code Chapter 21.86
Note: This exhibit includes amendments made to Chapter 21.86 by Ordinance CS-368 on
January 14, 2020.
Chapter 21.86 RESIDENTIAL DENSITY BONUS AND INCENTIVES OR CONCESSIONS
21.86.010 Purpose.
The public good is served when there exists in a city, housing which is appropriate for the needs
of and affordable to the public who reside within that city. There is in the City of Carlsbad a need
for housing affordable to various groups, such as lower income, moderate income and senior
citizen households. Therefore, it is in the public interest for the city to promote the construction
of such additional housing through the exercise of its powers and utilization of its resources to
facilitate the development of quality housing affordable for these types of households.
A.It is the purpose of this section to specify how compliance with Government Code Section
65915 et seq. (“State Density Bonus Law”) will be implemented, as required by
Government Code Section 65915, subdivision (a).
B.It is the purpose of this section to implement the goals, objectives and policies of the
Housing Element of the city’s General Plan.
C.It is the purpose of this section to provide the implementing framework, as it relates to
affordable housing density bonuses, and offer concessions and incentives for eligible
housing developments which are consistent with the city's long-standing commitment to
provide for affordable housing.
21.86.020 Definitions.
The definitions found in State Density Bonus Law shall apply to the terms contained in this
section.
Exhibit 2
Sept. 1, 2020 Item #5 Page 19 of 194
21.86.030 Applicability.
A housing development as defined in State Density Bonus Law shall be eligible for a density bonus
and other regulatory incentives that are provided by State Density Bonus Law when the applicant
seeks and agrees to provide very-low, low or moderate income housing units, or units intended
to serve seniors, transitional foster youth, disabled veterans, homeless persons, and lower
income students in the threshold amounts specified in State Density Bonus Law. A housing
development includes only the residential component of a mixed-use project. A commercial
development as defined in Section 21.86.110 shall be eligible for a commercial development
bonus as provided in Section 21.86.110.
The granting of a density bonus, incentive or concession, pursuant to this section, shall not be
interpreted, in and of itself, to require a general plan amendment, development code
amendment, zone change, other discretionary approval, or the waiver of a city ordinance or
provisions of a city ordinance unrelated to development standards.
21.86.040 Application Requirements.
A.Any applicant requesting a density bonus and any incentive(s), waiver(s), parking
reductions, or commercial development bonus provided by State Density Bonus Law shall
submit a density bonus report as described below concurrently with the filing of the
planning application for the first discretionary permit required for the housing
development, commercial development, or mixed-use development. The requests
contained in the density bonus report shall be processed concurrently with the planning
application. The applicant shall be informed whether the application is complete
consistent with California Government Code Section 65943.
B.The density bonus report shall include the following minimum information:
1.Requested Density Bonus.
a.Summary table showing the maximum number of dwelling units permitted
by the zoning and general plan excluding any density bonus units,
proposed affordable units by income level, proposed bonus percentage,
number of density bonus units proposed, total number of dwelling units
proposed on the site, and resulting density in units per acre.
b.A tentative map and/or preliminary site plan, drawn to scale, showing the
number and location of all proposed units, designating the location of
proposed affordable units and density bonus units.
c.The zoning and general plan designations and assessor’s parcel number(s)
of the housing development site.
Sept. 1, 2020 Item #5 Page 20 of 194
d.A description of all dwelling units existing on the site in the five-year period
preceding the date of submittal of the application and identification of any
units rented in the five-year period. If dwelling units on the site are
currently rented, income and household size of all residents of currently
occupied units, if known. If any dwelling units on the site were rented in
the five-year period but are not currently rented, the income and
household size of residents occupying dwelling units when the site
contained the maximum number of dwelling units, if known.
e.Description of any recorded covenant, ordinance, or law applicable to the
site that restricted rents to levels affordable to very- low or lower income
households in the five-year period preceding the date of submittal of the
application.
f.If a density bonus is requested for a land donation, the location of the land
to be dedicated, proof of site control, and reasonable documentation that
each of the requirements included in California Government Code Section
65915, subdivision (g) can be met.
2.Requested Concession(s) or Incentive(s).
In the event an application proposes concessions or incentives for a housing
development pursuant to State Density Bonus Law, the density bonus report shall
include the following minimum information for each incentive requested, shown
on a site plan if appropriate:
a.The City’s usual development standard and the requested development
standard or regulatory incentive.
b.Except where mixed-use zoning is proposed as a concession or incentive,
reasonable documentation to show that any requested incentive will
result in identifiable and actual cost reductions to provide for affordable
housing costs or rents.
c.If approval of mixed- use zoning is proposed, reasonable documentation
that nonresidential land uses will reduce the cost of the housing
development, that the nonresidential land uses are compatible with the
housing development and the existing or planned development in the area
where the proposed housing development will be located, and that mixed-
use zoning will provide for affordable housing costs or rents.
Sept. 1, 2020 Item #5 Page 21 of 194
3.Requested Waiver(s).
In the event an application proposes waivers of development standards for a
housing development pursuant to State Density Bonus Law, the density bonus
report shall include the following minimum information for each waiver requested
on each lot, shown on a site plan if appropriate:
a.The City’s usual development standard and the requested development
standard.
b.Reasonable documentation that the development standards for which a
waiver is requested will have the effect of physically precluding the
construction of a development at the densities or with the concessions or
incentives permitted by California Government Code Section 65915.
4.Requested Parking Reduction.
In the event an application proposes a parking reduction for a housing
development pursuant to California Government Code Section 65915, subdivision
(p), a table showing parking required by the zoning regulations, parking proposed
under Section 65915, subdivision (p), and reasonable documentation that the
project is eligible for the requested parking reduction.
5.Child Care Facility.
If a density bonus or incentive is requested for a child care facility in a housing
development, reasonable documentation that all of the requirements included in
California Government Code Section 65915, subdivision (h) can be met.
6.Condominium Conversion.
If a density bonus or incentive is requested for a condominium conversion,
reasonable documentation that all of the requirements included in California
Government Code Section 65915.5 can be met.
7.Commercial Development Bonus.
If a commercial development bonus is requested for a commercial development,
the application shall include the proposed partnered housing agreement and the
proposed commercial development bonus, as defined in Section 21.86.110, and
reasonable documentation that each of the standards included in Subsection
21.86.110(C) has been met.
Sept. 1, 2020 Item #5 Page 22 of 194
8.Fee.
Payment of any fee in an amount set by resolution of the City Council for staff time
necessary to determine compliance of the Density Bonus Plan with State Density
Bonus Law.
21.86.050 Density Bonus.
All calculations are rounded up for any fractional numeric value in determining the total number
of units to be granted, including base density and bonus density, as well as, the resulting number
of affordable units needed for a given density bonus project.
A.If a housing development qualifies for a density bonus under more than one income
category, or additionally as a senior citizen housing development as defined in Chapter
21.84 and State Density Bonus Law, or as housing intended to serve transitional foster
youth, disabled veterans, homeless persons, or lower income students, the applicant shall
identify the categories under which the density bonus would be associated and granted.
Density bonuses from more than one category can be combined up to the maximum
allowed under State Density Bonus law.
B.The density bonus units shall not be included in determining the number of affordable
units required to qualify a housing development for a density bonus pursuant to State
Density Bonus Law.
C.The applicant may elect to accept a lesser percentage of density bonus than the housing
development is entitled to, or no density bonus, but no reduction will be permitted in the
percentages of required affordable units contained in California Government Code
Section 65915, subdivisions (b), (c), and (f). Regardless of the number of affordable units,
no housing development shall be entitled to a density bonus of more than what is
authorized under State Density Bonus Law.
21.86.060 Incentives.
A.Incentives include incentives and concessions as defined in State Density Bonus Law. The
number of incentives that may be requested shall be based upon the number the
applicant is entitled to pursuant to State Density Bonus Law.
B.Nothing in this section requires the provision of direct financial incentives for the housing
development, including, but not limited to, the provision of financial subsidies, publicly
owned land, fee waivers, or waiver of dedication requirements. The city, at its sole
discretion, may choose to provide such direct financial incentives.
Sept. 1, 2020 Item #5 Page 23 of 194
21.86.070 Local Coastal Program Consistency.
A.State Density Bonus Law provides that it shall not be construed to supersede or in any
way alter or lessen the effect or application of the California Coastal Act of 1976 (Cal.
Public Resources Code § 30000 et seq.), and further provides that the granting of a density
bonus or an incentive shall not be interpreted, in and of itself, to require a local coastal
plan amendment.
B.For development within the coastal zone, any requested density bonus, incentive(s),
waiver(s), parking reduction(s), or commercial development bonus shall be consistent
with all applicable requirements of the certified Carlsbad Local Coastal Program, with the
exception of density.
21.86.080 Review Procedures.
All requests for density bonuses, incentives, parking reductions, waivers, or commercial
development bonuses shall be considered and acted upon by the approval body with authority
to approve the development within the timelines prescribed by California Government Code
Section 65950 et seq., with right of appeal to the City Council.
A.Eligibility for Density Bonus, Incentive(s), Parking Reduction, and/or Waiver(s) for a
Housing Development. To ensure that an application for a housing development
conforms with the provisions of State Density Bonus Law and the Coastal Act, the staff
report presented to the decision-making body shall state whether the application
conforms to the following requirements of state law as applicable:
1.The housing development provides the affordable units or senior housing required
by State Density Bonus Law to be eligible for the density bonus and any incentives,
parking reduction, or waivers requested, including the replacement of units
rented or formerly rented to very-low and low income households as required by
California Government Code Section 65915, subdivision (c)(3).
2.Any requested incentive will result in identifiable and actual cost reductions to
provide for affordable housing costs or rents; except that, if a mixed-use
development is requested, the application must instead meet all of the
requirements of California Government Code Section 65915, subdivision (k)(2).
3.The development standards for which a waiver is requested would have the effect
of physically precluding the construction of a development at the densities or with
the concessions or incentives permitted by California Government Code Section
65915.
4.The housing development is eligible for any requested parking reductions under
California Government Code Section 65915, subdivision (p).
Sept. 1, 2020 Item #5 Page 24 of 194
5.If the density bonus is based all or in part on donation of land, all of the
requirements included in California Government Code Section 65915, subdivision
(g) have been met.
6.If the density bonus or incentive is based all or in part on the inclusion of a child
care facility, all of the requirements included in California Government Code
Section 65915, subdivision (h) have been met.
7.If the density bonus or incentive is based all or in part on the inclusion of
affordable units as part of a condominium conversion, all of the requirements
included in California Government Code Section 65915.5 have been met.
8.If the housing development is in the coastal zone, the requested density bonus
and any requested incentive(s), waiver(s), or parking reduction(s) are consistent
with all applicable requirements of the certified Carlsbad Local Coastal Program,
with the exception of density.
B.If a commercial development bonus is requested for a commercial development, the
decision-making body shall make a finding that the development complies with all of the
requirements of Subsection 21.86.110(C), that the city has approved the partnered
housing agreement, and that the commercial development bonus has been mutually
agreed upon by the city and the commercial developer. If the project is in the coastal
zone, the decision-making body shall also find that the commercial development bonus
is consistent with all applicable requirements of the certified Carlsbad Local Coastal
Program, with the exception of density.
C.The decision-making body shall grant an incentive requested by the applicant unless it
makes a written finding, based upon substantial evidence, of any of the following:
1.The proposed incentive does not result in identifiable and actual cost reductions
to provide for affordable housing costs, as defined in California Health and Safety
Code Section 50052.5, or for affordable rents, as defined in California Health and
Safety Code Section 50053; or
2.The proposed incentive would be contrary to state or federal law; or
3.The proposed incentive would have a specific, adverse impact upon public health
or safety or the physical environment or on any real property that is listed in the
California Register of Historic Resources, and there is no feasible method to
satisfactorily mitigate or avoid the specific adverse impact without rendering the
housing development unaffordable to low and moderate income households. For
the purpose of this subsection, specific adverse impact means a significant,
Sept. 1, 2020 Item #5 Page 25 of 194
quantifiable, direct, and unavoidable impact, based on objective, identified,
written public health or safety standards, policies, or conditions as they existed on
the date that the application for the housing development was deemed complete.
D. The decision-making body shall grant the waiver of development standards requested by
the applicant unless it makes a written finding, based upon substantial evidence, of any
of the following:
1. The proposed waiver would be contrary to state or federal law; or
2. The proposed waiver would have an adverse impact on any real property listed in
the California Register of Historic Resources; or
3. The proposed waiver would have a specific, adverse impact upon public health or
safety or the physical environment, and there is no feasible method to
satisfactorily mitigate or avoid the specific adverse impact without rendering the
housing development unaffordable to low and moderate income households. For
the purpose of this subsection, 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 that the application for the housing development was deemed complete.
E. If any density bonus, incentive, parking reduction, waiver, or commercial development
bonus is approved pursuant to this chapter, the applicant shall enter into an affordable
housing agreement or senior housing agreement with the city pursuant to Section
21.86.090.
21.86.090 Affordable Housing Agreement and Senior Housing Agreement.
A. Affordable Housing Agreement. Except where a density bonus, incentive, waiver, parking
reduction, or commercial development bonus is provided for a market-rate senior
housing development, the applicant shall enter into an affordable housing agreement
with the city, in a form approved by the city attorney, to be executed by the city manager,
to ensure that the requirements of this section are satisfied. The affordable housing
agreement shall guarantee the affordability of the affordable units for a minimum of 55
years or a longer period of time if required by the construction or mortgage financing
assistance program, mortgage insurance program, or rental subsidy program; shall
identify the type, size and location of each affordable unit; and shall specify phasing of
the affordable units in relation to the market-rate units.
B. Senior Housing Agreement. Where a density bonus, waiver, or parking reduction is
provided for a market-rate senior housing development, the applicant shall enter into a
restrictive covenant with the city, running with the land, in a form approved by the city
attorney, to be executed by the city manager, to require that the housing development
Sept. 1, 2020 Item #5 Page 26 of 194
be operated as “housing for older persons” consistent with state and federal fair housing
laws.
C. The executed affordable housing agreement or senior housing agreement shall be
recorded against the housing development prior to final or parcel map approval, or,
where a map is not being processed, prior to issuance of building permits for the housing
development. The affordable housing agreement or senior housing agreement shall be
binding on all future owners and successors in interest.
D. The affordable housing agreement shall include, but not be limited to, the following:
1. The number of density bonus dwelling units granted;
2. The number and type of affordable dwelling units
3. The unit size(s) (square footage) of target dwelling units and the number of bedrooms
per target dwelling unit;
4. The proposed location of the affordable dwelling units;
5. Schedule for production of affordable dwelling units;
6. Incentives or concessions or waivers provided by the city;
7. Where applicable, tenure and conditions governing the initial sale of the affordable
units;
8. Where applicable, tenure and conditions establishing rules and procedures for
qualifying tenants, setting rental rates, filling vacancies, and operating and
maintaining units for affordable rental dwelling units
9. Marketing plan; publication and notification of availability of affordable units;
10. Compliance with federal and state laws;
11. Prohibition against discrimination;
12. Indemnification;
13. City’s right to inspect units and documents;
14. Remedies.
Sept. 1, 2020 Item #5 Page 27 of 194
21.86.100 Design and Quality.
A. The city may not issue building permits for more than 50 percent of the market rate units
until it has issued building permits for all of the affordable units, and the city may not
approve any final inspections or certificates of occupancy for more than 50 percent of the
market rate units until it has issued final inspections or certificates of occupancy for all of
the affordable units.
B. Affordable units shall be comparable in exterior appearance and overall quality of
construction to market- rate units in the same housing development. Interior finishes and
amenities may differ from those provided in the market rate units, but neither the
workmanship nor the products may be of substandard or inferior quality as determined
by the city.
C. The number of bedrooms of the affordable units shall at least equal the minimum number
of bedrooms of the market- rate units.
21.86.110 Commercial Density Bonus.
A. The following definitions shall apply to Commercial Density Bonus:
1. “Commercial development” means a development project for nonresidential
uses.
2. “Commercial development bonus” means a modification of development
standards mutually agreed upon by the city and a commercial developer and
provided to a commercial development eligible for such a bonus under Subsection
21.86.110(C). Examples of a commercial development bonus include an increase
in floor area ratio, increased building height, or reduced parking.
3. “Partnered housing agreement” means an agreement approved by the city
between a commercial developer and a housing developer identifying how the
commercial development will provide housing available at affordable ownership
cost or affordable rent consistent with Subsection 21.86.110(C). A partnered
housing agreement may consist of the formation of a partnership, limited liability
company, corporation, or other entity recognized by the state in which the
commercial developer and the housing developer are each partners, members,
shareholders, or other participants, or a contract between the commercial
developer and the housing developer for the development of both the commercial
development and the housing development.
B. When an applicant proposes to construct a commercial development and has entered
into a partnered housing agreement approved by the city, the city shall grant a
commercial development bonus mutually agreed upon by the developer and the city. The
Sept. 1, 2020 Item #5 Page 28 of 194
commercial development bonus shall not include a reduction or waiver of fees imposed
on the commercial development to provide for affordable housing.
C. The requirements for commercial development bonus are as follows, which also be
described in the partnered housing agreement:
1. The housing development shall be located either: (A) on the site of the commercial
development; or (B) on a site within the city that is within one-half mile of a major
transit stop and is located in close proximity to public amenities, including schools
and employment centers.
2. At least 30 percent of the total units in the housing development shall be made
available at affordable ownership cost or affordable rent for low-income
households, or at least 15 percent of the total units in the housing development
shall be made available at affordable ownership cost or affordable rent for very
low-income households.
3. The commercial developer must agree either to directly build the affordable units;
donate a site consistent with subparagraph 1 above for the affordable units; or
make a cash payment to the housing developer for the affordable units.
D. Any approved partnered housing agreement shall be described in the city’s Housing
Element annual report as required by California Government Code Section 65915.7,
subdivision (k).
21.86.120 Interpretation.
If any portion of this chapter conflicts with State Density Bonus Law or other applicable state law,
state law shall supersede this chapter. Any ambiguities in this chapter shall be interpreted to be
consistent with State Density Bonus Law.
21.86.130 Inclusionary housing.
All housing development projects are required to provide affordable housing units in
accordance with Chapter 21.85,Inclusionary Housing, of this title. If an applicant seeks to
construct affordable housing to qualify for a density bonus in accordance with the provisions of
this chapter, those affordable dwelling units provided to meet the inclusionary requirement
established pursuant to Chapter 21.85 of this title shall be counted toward satisfying the
density bonus requirements of this chapter.
21.86.140 Severability.
If any provision of this chapter or its application to any person or circumstances is held invalid,
the remainder of the chapter and the application of the provision to other persons not similarly
Sept. 1, 2020 Item #5 Page 29 of 194
situated or to other circumstances shall not be affected. (Ord. CS-102 § CXVI, 2010; Ord. NS-794
§ 11, 2006)
21.86.010 Purpose and intent.
A. The public good is served when there exists in a city, housing which is appropriate for
the needs of and affordable to all members of the public who reside within that city.
Among other needs, there is in Carlsbad a need for housing affordable to lower-income
households, and special needs groups, including homeless persons, foster youth, disabled
veterans, lower income students and senior citizens. Therefore, it is in the public interest
for the city to promote the construction of such additional housing through the exercise of
its powers and the utilization of its resources.
B. It is the purpose of this chapter to provide a means for granting density bonuses and
incentives or concessions to developers for the production of housing affordable to lower-
and moderate-income households, homeless persons, foster youth, disabled veterans,
lower income students and senior citizens.
C. It is the purpose of this chapter to implement the goals, objectives, policies and
programs of the housing element of the city’s general plan.
D. It is the purpose of this chapter to implement Sections 65915 through 65918 of the
California Government Code.
E. This chapter is not intended to create a mandatory duty on behalf of the city or its
employees under the Government Tort Claims Act and no cause of action against the city
or its employees is created by this chapter that would not arise independently of the
provisions of this chapter.
F. This chapter does not supersede or in any way alter or lessen the effect or application of
the California Coastal Act of 1976. Any density bonus, concessions, incentives, waivers or
reductions of development standards, and parking ratios to which the applicant is entitled
under this section shall be permitted in a manner that is consistent with this chapter and
Division 20 (commencing with Section 30000) of the Public Resources Code. (Ord. CS-242 §
3, 2014; Ord. NS-794 § 11, 2006)
21.86.020 Definitions.
A. Whenever the following terms are used in this chapter, they shall have the meaning
established by this section:
Sept. 1, 2020 Item #5 Page 30 of 194
1. “Affordable housing” means housing for which the allowable housing expenses
paid by a qualifying household shall not exceed a specified fraction of the county
median income, adjusted for household size, as follows:
a. Extremely low-income, rental and for-sale units: the product of thirty
percent times thirty percent of the county median income, adjusted for
household size.
b. Very low-income, rental and for-sale units: the product of thirty percent
times fifty percent of the county median income, adjusted for household size.
c. Low-income, rental units: the product of thirty percent times sixty
percent of the county median income, adjusted for household size.
d. Low-income, for-sale units: the product of thirty percent times seventy
percent of the county median income, adjusted for household size.
e. Moderate-income, for-sale units: allowable housing
expenses shall not be less than twenty-eight percent of the gross income of the
household, nor exceed the product of thirty-five percent times one hundred ten
percent of the county median income, adjusted for household size.
2. “Allowable housing expense” means the total monthly or annual recurring
expenses required of a household to obtain shelter. For a for-sale unit, allowable
housing expenses include loan principal and interest at the time of initial purchase by
the homebuyer, allowances for property and mortgage insurance, property taxes,
homeowners’ association dues and a reasonable allowance for utilities as defined by
the Code of Federal Regulations (24CFR982). For a rental unit, allowable housing
expenses include rent and a utility allowance as established and adopted by the City
of Carlsbad housing authority, as well as all monthly payments made by the tenant to
the lessor in connection with use and occupancy of a housing unit and land and
facilities associated therewith, including any separately charged fees, utility charges,
or service charges assessed by the lessor and payable by the tenant.
3. “Child day care center” shall have the same meaning as defined in Section
21.83.020(D) of this title.
4. “Common interest development” means any of the following (as defined in
Section 4100 of the California Civil Code):
a. A community apartment project;
b. A condominium project;
c. A planned development;
d. A stock cooperative.
5. “Conversion” means the change of occupancy of a dwelling unit from owner-
occupied to rental or vice versa.
Sept. 1, 2020 Item #5 Page 31 of 194
6. “Density bonus” means an increase over the maximum allowable gross
residential density as specified by the land use element of the general plan in effect at
the time of application submittal or if elected by the applicant, a lesser percentage of
density increase, including but not limited to, no increase in density.
7. “Density bonus dwelling units” means those residential units granted pursuant
to the provisions of this chapter, which are above the maximum allowable residential
density of the project site.
8. “Density bonus housing agreement” means a legally binding agreement between
a developer and the city to ensure that the density bonus requirements of this
chapter are satisfied. The agreement establishes, among other things, the number of
target dwelling units and density bonus dwelling units, the unit sizes, location,
affordability tenure, terms and conditions of affordability and unit production
schedule.
9. “Development standard” means a site or construction condition/requirement
that applies to a housing development pursuant to any ordinance, general plan
element, master or specific plan, or other city condition, requirement, law, policy,
resolution or regulation. A “development standard” may include, but is not limited to
a height limitation, a setback requirement, a floor area ratio, an onsite open space
requirement or a parking ratio.
10. “Equivalent size” means that replacement units contain at least the same total
number of bedrooms as the units being replaced.
11. “Extremely low-income household” means those households whose gross income
is equal to or less than thirty percent of the median income for San Diego County as
determined annually by the U.S. Department of Housing and Urban Development.
12. “Floor area ratio” means the ratio of gross building area of the eligible housing
development, excluding structured parking areas, proposed for the project divided by
the net lot area. For purposes of this paragraph, “gross building area” means the sum
of all finished areas of all floors of a building included within the outside faces of its
exterior walls.
13. “Housing development” means a development project for five or more
residential units, including mixed-use developments, and may also include the
following:
a. A subdivision or common interest development consisting of residential
units or unimproved lots; or
b. A project to either substantially rehabilitate and convert an existing
commercial building to residential use; or
Sept. 1, 2020 Item #5 Page 32 of 194
c. A project to substantially rehabilitate an existing two-family or multiple-
family dwelling structure(s), where the rehabilitation results in a net increase to
five or more available residential units.
14. “Incentives or concessions” means such regulatory incentives or concessions as
stipulated in California Government Code Section 65915(k), to include, but not be
limited to, the reduction of site development standards or zone code requirements or
architectural design requirements, approval of mixed use zoning in conjunction with
the housing project if commercial, office, industrial, or other land uses will reduce the
cost of the housing development and if the commercial, office, industrial, or other
land uses are compatible with the housing project and the existing or planned
development in the area where the proposed housing project will be located, or any
other regulatory incentive or concession which would result in identifiable and actual
cost reductions to provide for affordable housing costs or rents for the targeted units.
15. “Income” means any monetary benefits that qualify as income in accordance
with the criteria and procedures used by the City of Carlsbad housing and
neighborhood services department for the acceptance of applications and
recertifications for the tenant based rental assistance program, or its successor.
16. “Low-income household” means those households whose gross income is more
than fifty percent but does not exceed eighty percent of the median income for San
Diego County as determined annually by the U.S. Department of Housing and Urban
Development.
17. “Lower-income household” means low-income, very low-income and extremely
low-income households, whose gross income does not exceed eighty percent of the
median income for San Diego County as determined annually by the U.S. Department
of Housing and Urban Development.
18. “Lower income students” means students who have a household income and
asset level that does not exceed the level for Cal Grant A or Cal Grant B award
recipients as set forth in paragraph (1) of subdivision (k) of Section 69432.7 of the
Education Code.
19. “Market-rate unit” means a dwelling unit where the rental rate or sales price is
not restricted either by this chapter or by requirements imposed through other local,
state or federal affordable housing programs.
20. “Maximum allowable residential density” means the maximum density of the
density range allowed by the general plan land use designation(s) applicable to a
project site. All environmentally constrained lands identified as undevelopable in the
general plan, local coastal program, and zoning ordinance shall be excluded from the
total area of the project site when calculating maximum density.
Sept. 1, 2020 Item #5 Page 33 of 194
21. “Moderate-income household” means those households whose gross income is
more than eighty percent but does not exceed one hundred twenty percent of the
median income for San Diego County as determined annually by the U.S. Department
of Housing and Urban Development.
22. “Qualifying resident” means a resident as defined in Chapter 21.84 of this title and
Section 51.2 of the California Civil Code.
23. “Target dwelling unit” means a dwelling unit that will be offered for rent or sale
exclusively to and which shall be affordable to the designated income group or
qualified (senior) resident, as required by this chapter.
24. “Total units” means the number of dwelling units in a housing development,
excluding the density bonus dwelling units awarded pursuant to this chapter or any
other local ordinance granting a greater density bonus.
25. “Very low-income household” means a household earning a gross income equal
to fifty percent or less of the median income for San Diego County as determined
annually by the U.S. Department of Housing and Urban Development. (Ord. CS-242 §
4, 2014; Ord. CS 164 § 12, 2011; Ord. NS-889 § 2, 2008; Ord. NS-794 § 11, 2006)
21.86.030 Inclusionary housing.
All housing development projects are subject to Chapter 21.85 – Inclusionary Housing, including
projects that also qualify for a density bonus under this chapter. The affordable housing
requirements of the two chapters are not cumulative. If an applicant seeks to construct
affordable housing to qualify for a density bonus in accordance with the provisions of this
chapter, those affordable dwelling units provided to meet the inclusionary requirement
established pursuant to Chapter 21.85 of this title shall also be counted toward satisfying the
density bonus requirements of this chapter. For projects that qualify for a density bonus, the
inclusionary housing requirement shall be based on the total residential units approved for the
project, including any density bonus dwelling units awarded pursuant to this chapter. (Ord. CS-
242 § 5, 2014; Ord. NS-794 § 11, 2006)
21.86.040 Density bonus for housing developments.
A. The decision-making body shall grant one density bonus, as specified in subsection B of
this section, and incentives or concessions, as set forth in Section 21.86.050 of this chapter,
when an applicant seeks and agrees to construct a housing development of at least five units,
excluding any units permitted by the density bonus awarded pursuant to this chapter, that will
contain at least any one of the following:
Sept. 1, 2020 Item #5 Page 34 of 194
1. A minimum of ten percent of the total units of the housing development as
restricted and affordable to lower-income households;
2. A minimum of five percent of the total units of the housing development as
restricted and affordable to very low-income households;
3. A senior citizen housing development as defined in Section 21.84.030(A)(7) of
this title and Section 51.3 and 51.12 of the California Civil Code, or mobile home park
that limits residency based on age requirements for housing for older persons
pursuant to Section 798.76 or 799.5 of the California Civil Code;
4. A minimum of ten percent of the total units in a common interest development
restricted and affordable to moderate-income households, provided that all units in
the development are offered to the public for purchase;
5. A minimum of ten percent of the total units of a housing development for
transitional foster youth, as defined in Section 66025.9 of the California Education
Code, disabled veterans, as defined in Section 18541, or homeless persons, as defined
in the federal McKinney-Vento Homeless Assistance Act (42 U.S.C. Sec. 11301 et seq.).
The units described in this paragraph shall be subject to a recorded affordability
restriction of 55 years and shall be provided at the same affordability level as very
low-income units; or
6. Twenty percent of the total units for lower income students in a student housing
development that meets the following requirements:
(i) All units in the student housing development will be used exclusively for
undergraduate, graduate, or professional students enrolled full-time at an
institution of higher education accredited by the Western Association of Schools
and Colleges or the Accrediting Commission for Community and Junior Colleges.
In order to be eligible under this subparagraph, the developer shall, as a
condition of receiving a certificate of occupancy, provide evidence to the city
that the developer has entered into an operating agreement or master lease
with one or more institutions of higher education for the institution or
institutions to occupy all units of the student housing development with
students from that institution or institutions. An operating agreement or master
lease entered into pursuant to this subparagraph is not violated or breached if,
in any subsequent year, there are not sufficient students enrolled in an
institution of higher education to fill all units in the student housing
development.
(ii) The applicable twenty percent units will be used for lower income
students. For purposes of this paragraph, “lower income students” means
students who have a household income and asset level that does not exceed
Sept. 1, 2020 Item #5 Page 35 of 194
the level for Cal Grant A or Cal Grant B award recipients as set forth in
paragraph (1) of subdivision (k) of Section 69432.7 of the Education Code. The
eligibility of a student under this paragraph shall be verified by an affidavit,
award letter, or letter of eligibility provided by the institution of higher
education that the student is enrolled in, as described in subparagraph (i), or by
the California Student Aid Commission that the student receives or is eligible for
financial aid, including an institutional grant or fee waiver, from the college or
university, the California Student Aid Commission, or the federal government
shall be sufficient to satisfy this subparagraph.
(iii) The rent provided in the applicable units of the development for lower income
students shall be calculated at thirty percent of sixty-five percent of the area median
income for a single-room occupancy unit type.
(iv) The development will provide priority for the applicable affordable units for lower
income students experiencing homelessness. A homeless service provider, as defined
in paragraph (3) of subdivision (d) of Section 103577 of the Health and Safety Code, or
institution of higher education that has knowledge of a person’s homeless status may
verify a person’s status as homeless for purposes of this subparagraph.
(v) For purposes of calculating a density bonus granted pursuant to this paragraph,
the term “unit” as used in this section means one rental bed and its pro rata share of
associated common area facilities. The units described in this paragraph shall be
subject to a recorded affordability restriction of 55 years.
B. When an applicant seeks and agrees to construct a housing development meeting the
criteria specified in subsection A of this section, the decision-making body shall grant a
density bonus subject to the following:
1. The amount of density bonus to which a housing development is entitled shall
vary according to the amount by which the percentage of affordable housing units
exceeds the percentages established in subsection A of this section, as follows:
a. For housing developments meeting the criteria of subsection (A)(1) of
this section, the density bonus shall be calculated as follows:
Sept. 1, 2020 Item #5 Page 36 of 194
Table A
Density Bonus for Housing Developments with Units Affordable to Low-Income Households
Percentage of Low-Income Units
(Minimum 10% required)
Percentage of Density Bonus to be Granted
(Additional 1.5% density bonus for each 1%
increase above the 10% minimum)
10 20
11 21.5
12 23
13 24.5
14 26
15 27.5
16 29
17 30.5
18 32
19 33.5
20 35
b. For housing developments meeting the criteria of subsection (A)(2) of
this section, the density bonus shall be calculated as follows:
Table B
Density Bonus for Housing Developments with Units Affordable to Very Low-Income
Households
Percentage of Very Low-Income Units Percentage of Density Bonus to be Granted
5 20
6 22.5
7 25
8 27.5
9 30
10 32.5
11 35
c. For housing developments meeting the criteria of subsection (A)(3) of
this section, the density bonus shall be twenty percent of the number of senior
housing units.
d. For housing developments meeting the criteria of subsection (A)(4) of
this section, the density bonus shall be calculated as follows:
Sept. 1, 2020 Item #5 Page 37 of 194
Table C
Density Bonus for Common Interest Developments with Units
Affordable to Moderate-Income Households
Percentage of Moderate-Income Units Percentage of Density Bonus to be Granted
10 5
11 6
12 7
13 8
14 9
15 10
16 11
17 12
18 13
19 14
20 15
21 16
22 17
23 18
24 19
25 20
26 21
27 22
28 23
29 24
30 25
31 26
32 27
33 28
34 29
35 30
36 31
37 32
38 33
39 34
40 35
e. For housing developments meeting the criteria of subsection (A)(5) of
this section, the density bonus shall be twenty percent of the number of the type
of units giving rise to a density bonus under that subsection.
Sept. 1, 2020 Item #5 Page 38 of 194
f. For housing developments meeting the criteria of subsection (A)(6) of
this section, the density bonus shall be thirty-five percent of the student housing
units.
2. The amount of density bonus to which a housing development is entitled shall
not exceed thirty-five percent.
3. The applicant may elect to accept a lesser percentage of density bonus than
specified in this subsection.
4. If a housing development includes a combination of target dwelling unit types
that meet two or more of the criteria specified in subsection A of this section, the
applicant shall elect one applicable density bonus.
C. When an applicant for a tentative subdivision map, parcel map, or other housing
development approval donates land to the city, in accordance with this subsection, the
applicant shall be entitled to a density bonus for the entire development, as follows:
Table D
Density Bonus for Land Donation
Percentage of Very Low-Income Units Percentage of Density Bonus to be Granted
10 15
11 16
12 17
13 18
14 19
15 20
16 21
17 22
18 23
19 24
20 25
21 26
22 27
23 28
24 29
25 30
26 31
27 32
28 33
29 34
30 35
Sept. 1, 2020 Item #5 Page 39 of 194
1. A density bonus granted pursuant to this subsection shall not exceed thirty-five
percent.
2. If an applicant seeks both the density bonus pursuant to this subsection and
subsection A of this section, both density bonuses shall be granted up to a maximum
combined density bonus of thirty-five percent.
3. An applicant shall be eligible for the density bonus described in this subsection
only if all of the following conditions are met:
a. The land is donated and transferred to the city no later than the date of
approval of the final subdivision map, parcel map or housing development
application.
b. The developable acreage, zoning classification and general plan land use
designation of the land being donated are sufficient to permit construction of
the units affordable to very low-income households in an amount not less than
ten percent of the number of residential units of the proposed development.
c. The transferred land is at least one acre in size or of sufficient size to
permit development of at least forty units, and has the appropriate: 1) general
plan land use designation; 2) zoning classification with appropriate development
standards for development at the density described in paragraph (3) of
subdivision (c) of Section 65583.2 of the California Government Code, and 3) is
or will be served by adequate public facilities and infrastructure.
d. The transferred land shall have all of the permits and approvals, other
than building permits, necessary for the development of the very low-income
housing units on the transferred land, not later than the date of approval of the
final subdivision map, parcel map, or housing development, except that the city
may subject the proposed development to subsequent design review to the
extent authorized by subdivision (i) of Section 65583.2 of the California
Government Code if the design is not reviewed by the city prior to the time of
transfer.
e. The transferred land and the affordable units shall be subject to a deed
restriction ensuring continued affordability of the units consistent with Section
21.86.100 of this chapter, which shall be recorded on the property at the time of
the transfer.
f. The land is transferred to the city or to a housing developer approved by
the city. The city may require the applicant to identify and transfer the land to
the developer.
g. The transferred land shall be within the boundary of the proposed
development or, if the city agrees, within one-quarter mile of the boundary of
the proposed development.
h. Prior to the approval of the final subdivision map, parcel map or housing
development application, the developer shall identify a proposed source of
funding for the very low income units.
Sept. 1, 2020 Item #5 Page 40 of 194
D. In cases where an applicant requests a density bonus of more than what is specified in
this section, the city council may grant the requested additional density bonus, subject to
the following:
1. The project meets the requirements of this chapter.
2. The additional density bonus shall be considered an incentive, in accordance
with Section 21.86.050 of this chapter.
3. The city council may require some portion of the additional density bonus units
to be designated as target dwelling units.
E. The city council may grant a proportionately lower density bonus than what is specified
by this section for developments that do not meet the requirements of this chapter.
F. The density bonus dwelling units granted pursuant to this chapter shall not be included
when determining the number of housing units required by this chapter to be reserved for
income-restricted households.
G. When calculating any density, including the base density, the density bonus, or the
required number of target dwelling units, any calculations resulting in fractional units shall
be separately rounded up to the next whole number.
H. For the purposes of calculating a density bonus, the residential units shall be on
contiguous sites that are the subject of one development application in a housing
development, but do not have to be based upon individual subdivision maps or parcels.
I. The density bonus units shall be permitted in geographic areas of the housing
development other than the areas where the units for lower-income households are
located.
J. A density bonus housing agreement shall be made a condition of the discretionary
permits (i.e., tentative maps, parcel maps, planned unit developments, condominium
permits, site development plans and redevelopment permits) for all housing developments
that request a density bonus and incentives or concessions. The relevant terms and
conditions of the density bonus housing agreement shall be filed and recorded as a deed
restriction on those individual lots or units of a project development which are designated
for the location of target dwelling units. The density bonus housing agreement shall be
consistent with Section 21.86.130 of this chapter.
K. An applicant shall be ineligible for a density bonus or any other incentives or
concessions under this chapter if the housing development is proposed on any property
that includes a parcel or parcels on which rental dwelling units are or, if rental dwelling
Sept. 1, 2020 Item #5 Page 41 of 194
units have been vacated or demolished in the five-year period preceding the application,
have been subject to a recorded covenant, ordinance, or law that restricts rents to levels
affordable to persons and families of lower- or very low-income; subject to any other form
of rent or price control through the city’s valid exercise of its police power; or occupied by
lower- or very low-income households, unless the proposed housing development replaces
those units, and either of the following applies:
1. The proposed housing development, inclusive of the units replaced pursuant to
this subsection, contains affordable units at the percentages set forth in this section.
2. Each unit in the development, exclusive of a manager’s unit or units, is
affordable to and occupied by either a lower- or very low-income household.
3. For the purposes of this subsection, “replaces” shall mean either of the
following:
a. If any rental dwelling unit(s) is occupied on the date of application, the
proposed housing development shall provide at least the same number of units
of equivalent size to be made available at affordable rent or affordable housing
cost to, and occupied by, persons and families in the same or lower income
category as those households in occupancy. If the income category of the
household in occupancy is not known, it shall be rebuttably presumed that lower
income renter households occupied these units in the same proportion of lower
income renter households to all renter households within Carlsbad, as
determined by the most recently available data from the United States
Department of Housing and Urban Development’s Comprehensive Housing
Affordability Strategy database. For unoccupied dwelling units described in this
subsection in a development with occupied units, the proposed housing
development shall provide units of equivalent size to be made available at
affordable rent or affordable housing cost to, and occupied by, persons and
families in the same or lower income category as the last household in
occupancy. If the income category of the last household in occupancy is not
known, it shall be rebuttably presumed that lower income renter households
occupied these units in the same proportion of lower income renter households
to all renter households within Carlsbad, as determined by the most recently
available data from the United States Department of Housing and Urban
Development’s Comprehensive Housing Affordability Strategy database. All
replacement calculations resulting in fractional units shall be rounded up to the
next whole number. The replacement units shall be subject to the affordability
tenure requirements specified in Section 21.86.100.
b. If all rental dwelling units have been vacated or demolished within the
five-year period preceding the application, the proposed housing development
shall provide at least the same number of units of equivalent size as existed at
the highpoint of those units in the five-year period preceding the application.
Sept. 1, 2020 Item #5 Page 42 of 194
The replacement units shall be provided at an affordable rent or affordable
housing cost to, and occupied by, persons and families in the same or lower
income category as those persons and families in occupancy at the highpoint, if
known. If the incomes of the persons and families in occupancy at the highpoint
is not known, it shall be rebuttably presumed that low-income and very low-
income renter households occupied these units in the same proportion of low-
income and very low income renter households to all renter households within
Carlsbad, as determined by the most recently available data from the United
States Department of Housing and Urban Development’s Comprehensive
Housing Affordability Strategy database. All replacement calculations resulting in
fractional units shall be rounded up to the next whole number. The replacement
units shall be subject to the affordability tenure requirements specified in
Section 21.86.100. (Ord. CS-280 § 1, 2015; Ord. CS-242 §§ 6—8, 2014; Ord. NS-
794 § 11, 2006)
21.86.050 Incentives and concessions for housing developments.
A. When an applicant requests a density bonus pursuant to Section 21.86.040(A) of this
chapter, the decision-making body shall grant incentives or concessions, subject to the
following:
1. An applicant shall submit a proposal for any specific incentives or concessions
requested pursuant to this section.
2. The decision-making body shall grant the incentive(s) or concession(s) requested
by the applicant unless, based upon substantial evidence, any of the following
findings are made in writing:
a. The incentive or concession does not result in identifiable and actual cost
reductions, consistent with Section 21.86.020(A)(14) to provide for affordable
housing costs as defined in Section 21.86.020(A)(1) of this chapter.
b. The incentive or concession would have a specific adverse impact upon
public health and safety or the physical environment, or on any real property
that is listed in the California Register of Historical Resources, and for which
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. As used in this paragraph, and as defined in
paragraph (2) of subdivision (d) of Section 65589.5 of the California Government
Code, 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.
c. The incentive or concession would be contrary to state or federal law.
Sept. 1, 2020 Item #5 Page 43 of 194
3. The applicant shall receive the following number of incentives or concessions:
a. One incentive or concession for projects that include at least ten percent
of the total units for lower-income households, at least five percent for very low-
income households, or at least ten percent for persons and families of moderate
income in a common interest development.
b. Two incentives or concessions for projects that include at least twenty
percent of the total units for lower-income households, at least ten percent for
very low-income households, or at least twenty percent for persons and families
of moderate income in a common interest development.
c. Three incentives or concessions for projects that include at least thirty
percent of the total units for lower-income households, at least fifteen percent
for very low-income households, or at least thirty percent for persons and
families of moderate income in a common interest development.
4. An incentive or concession may include any of the following:
a. A reduction in site development standards or a modification of zoning
code or architectural design requirements (excluding State Building Standards),
that results in identifiable and actual cost reductions. A reduction/modification
to standards or requirements may include, but is not limited to, a reduction in
minimum lot size, setback requirements, and/or in the ratio of vehicular parking
spaces that would otherwise be required.
b. Approval of mixed use zoning in conjunction with the housing
development if: (i) commercial, office, industrial or other land uses will reduce
the cost of the housing development; and (ii) the commercial, office, industrial,
or other land uses are compatible with the housing development and the
existing or planned future development in the area where the proposed project
will be located.
c. Other regulatory incentives or concessions that result in identifiable and
actual cost reductions.
d. The city council may, but is not required to, provide direct financial
incentives, including the provision of publicly owned land, or the waiver of fees
or dedication requirements.
5. The applicant shall show that the requested incentive(s) or concession(s) will
result in identifiable and actual cost reductions. (Ord. CS-280 § 2, 2015; Ord. CS-242 §
9, 2014; Ord. NS-794 § 11, 2006)
21.86.060 Waiver or reduction of development standards.
A. In addition to the incentives or concessions permitted by Section 21.86.050 of this
chapter, an applicant may seek a waiver or reduction of development standards that will
have the effect of physically precluding the construction of a housing development
meeting the criteria of Section 21.86.040(A) of this chapter at the densities or with the
incentives or concessions permitted by this chapter.
Sept. 1, 2020 Item #5 Page 44 of 194
1. The applicant shall provide evidence that the development standard(s)
requested to be waived or reduced will have the effect of physically precluding the
construction of a housing development at the densities or with the incentives or
concessions permitted by this chapter.
2. A proposal for the waiver or reduction of development standards pursuant to
this section shall neither reduce nor increase the number of incentives or concessions
to which the applicant is entitled pursuant to Section 21.86.050 of this chapter.
B. The decision-making body shall grant the requested waiver or reduction of development
standards, unless, based upon substantial evidence, any of the following findings are made
in writing:
1. The development standard(s) requested to be waived or reduced will not have
the effect of physically precluding the construction of a housing development at the
densities or with the incentives or concessions permitted by this chapter.
2. The requested waiver or reduction of development standards would have a
specific adverse impact upon public health and safety or the physical environment, or
on any real property that is listed in the California Register of Historical Resources,
and for which there is no feasible method to satisfactorily mitigate or avoid the
specific adverse impact. As used in this subsection, and as defined in paragraph (2) of
subdivision (d) of Section 65589.5 of the California Government Code, 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.
3. The waiver or reduction of development standards would be contrary to state or
federal law. (Ord. CS-242 § 10, 2014; Ord. NS-794 § 11, 2006)
21.86.070 Density bonus and incentives for condominium conversions.
A. When an applicant proposes to convert apartments to condominiums, the decision-
making body shall grant either a density bonus or other incentives of equivalent financial
value, as set forth in Section 21.86.050(A) of this chapter, if the applicant agrees to provide
the following:
1. A minimum of thirty-three percent of the total units of the proposed
condominium conversion project as restricted and affordable to low-income or
moderate-income households; or
2. A minimum of fifteen percent of the total units of the proposed condominium
conversion project as restricted and affordable to lower-income households.
Sept. 1, 2020 Item #5 Page 45 of 194
B. For purposes of this section “density bonus” means an increase in units of twenty-five
percent over the number of apartments, to be provided within the existing structure or
structures proposed for conversion.
C. For purposes of this section, “other incentives of equivalent financial value” shall not be
construed to require the city to provide monetary compensation but may include the
waiver or reduction of requirements that might otherwise apply to the proposed
condominium conversion project.
D. The density bonus dwelling units shall not be included when determining the number of
housing units required to be reserved for income-restricted households.
E. When calculating the density bonus, or the required number of target dwelling units,
any calculations resulting in fractional units shall be separately rounded up to the next
whole number.
F. Nothing in this section shall be construed to require that the city approve a proposal to
convert apartments to condominiums.
G. An applicant/developer proposing to convert apartments to condominiums shall be
ineligible for a density bonus or other incentives under this section if the apartments
proposed for conversion constitute a housing development for which a density bonus or
other incentives were provided under Sections 21.86.040 and 21.86.050 of this chapter.
H. A density bonus housing agreement shall be made a condition of the discretionary
permits (tentative maps, parcel maps, planned unit developments and condominium
permits) for all condominium conversion proposals that request a density bonus or other
incentives. The relevant terms and conditions of the density bonus housing agreement
shall be filed and recorded as a deed restriction on those individual lots or units of a
project development which are designated for the location of target dwelling units. The
density bonus housing agreement shall be consistent with Section 21.86.130 of this
chapter.
I. An applicant shall be ineligible for a density bonus, or any other incentives or
concessions under this chapter if the condominium project is proposed on any property
that includes a parcel or parcels on which rental dwelling units are or, if rental dwelling
units have been vacated or demolished in the five-year period preceding the application,
have been subject to a recorded covenant, ordinance, or law that restricts rents to levels
affordable to persons and families of lower or very low income; subject to any other form
of rent or price control through the city’s valid exercise of its police power; or occupied by
lower- or very low-income households, unless the proposed condominium project replaces
those units, as defined in Section 21.86.040(K)(3) of this chapter, and either of the
following applies:
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1. The proposed condominium project, inclusive of the units replaced pursuant to
Section 21.86.040(K)(3) of this chapter, contains affordable units at the percentages
set forth in subsection A.
2. Each unit in the development, exclusive of a manager’s unit or units, is
affordable to, and occupied by, either a lower or very low income household. (Ord.
CS-280 § 3, 2015; Ord. NS-794 § 11, 2006)
21.86.075 Development bonus with commercial development and partnered housing.
A. When an applicant for approval of a commercial development has entered into an
agreement for partnered housing described in subsection C. to contribute affordable
housing through a joint project or two separate projects encompassing affordable housing,
the city shall grant to the commercial developer a development bonus as prescribed in
subsection B. The housing shall be constructed on the site of the commercial development
or on a site that includes all of the following:
1. Within the city;
2. In close proximity to public amenities including schools and employment centers; and
3. Located within one-half mile of a major transit stop, as defined in subdivision (b) of
Section 21155 of the California Public Resources Code.
B. The development bonus granted to the commercial developer shall mean incentives,
mutually agreed upon by the developer and the city, that may include, but are not limited
to, any of the following:
1. Up to a twenty percent increase in maximum allowable intensity in the General Plan;
2. Up to a twenty percent increase in maximum allowable floor area ratio;
3. Up to a twenty percent increase in maximum height requirements;
4. Up to a twenty percent reduction in minimum parking requirements;
5. Use of a limited-use/limited-application elevator for upper floor accessibility; or
6. An exception to the zoning ordinance or other land use regulation.
C. For the purposes of this section, the agreement for partnered housing shall be between the
commercial developer and the housing developer, shall identify how the commercial
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developer will contribute affordable housing, and shall be approved by the decision-making
body.
D. For the purposes of this section, affordable housing may be contributed by the commercial
developer in one of the following manners:
1. The commercial developer may directly build the units;
2. The commercial developer may donate a portion of the site or property elsewhere to
the affordable housing developer for use as a site for affordable housing; or
3. The commercial developer may make a cash payment to the affordable housing
developer that shall be used towards the costs of constructing the affordable housing
project.
E. For the purposes of this section, subsection 21.86.040(K) shall apply.
F. Nothing in this section shall preclude any additional allowances or incentives offered to
developers by the city pursuant to law or regulation.
G. If the developer of the affordable units does not commence with construction of those units
in accordance with timelines ascribed by the agreement described in subsection C, the city
may withhold certificates of occupancy for the commercial development under
construction until the developer has completed construction of the affordable units.
H. In order to qualify for a development bonus under this section, a commercial developer
shall partner with a housing developer that provides at least thirty percent of the total units
for low-income households or at least fifteen percent of the total units for very low-income
households.
I. Nothing in this section shall preclude an affordable housing developer from seeking a
density bonus, concessions or incentives, waivers or reductions of development standards,
or parking ratios under this chapter.
J. A development bonus pursuant to this section shall not include a reduction or waiver of the
requirements within an ordinance that requires the payment of a fee by a commercial
developer for the promotion or provision of affordable housing.
K. The city shall submit to the Department of Housing and Community Development, as part
of the annual report required by California Government Code Section 65400 (Housing
Report), information describing a commercial development bonus approved pursuant to
this section, including the terms of the agreements between the commercial developer and
the affordable housing developer, and the developers and the city, and the number of
affordable units constructed as part of the agreements.
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L. For purposes of this section, “partner” shall mean formation of a partnership, limited
liability company, corporation, or other entity recognized by the state in which the
commercial development applicant and the affordable housing developer are each
partners, members, shareholders or other participants, or a contract or agreement
between a commercial development applicant and affordable housing developer for the
development of both the commercial and the affordable housing properties.
M. This section shall remain in effect only until January 1, 2022, and as of that date is
repealed.
21.86.080 Housing developments with child day care centers.
A. When an applicant proposes to construct a housing development that conforms to the
requirements of Section 21.86.040(A) of this chapter, and includes a child day care center
that will be located on the premises of, as part of, or adjacent to, the project, the following
provisions shall apply:
1. The decision-making body shall grant either of the following:
a. An additional density bonus that is an amount of square feet of
residential space that is equal to or greater than the amount of square feet in
the child day care center; or
b. An additional incentive or concession that contributes significantly to the
economic feasibility of the construction of the child day care center.
2. The decision-making body shall require, as a condition of approval of the housing
development, that the following occur:
a. The child day care center shall remain in operation for a period of time
that is as long as or longer than the period of time during which the target
dwelling units are required to remain affordable, pursuant to Section 21.86.100
of this chapter; and
b. Of the children who attend the child day care center, the children of very
low-, lower-, or moderate-income households shall equal a percentage that is
equal to or greater than the percentage of dwelling units that are required for
very low-, lower-, or moderate-income households pursuant to Section
21.86.040(A) of this chapter.
3. Notwithstanding any requirement of this section, the decision-making body shall
not be required to provide an additional density bonus, incentive or concession for a
child day care center if it finds, based on substantial evidence, that the community
has an adequate number of child day care centers. (Ord. NS-794 § 11, 2006)
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21.86.090 Density bonus housing standards.
A. Required target dwelling units shall be constructed concurrent with market-rate
dwelling units unless both the final decision-making authority of the city and the
developer/applicant agree within the density bonus housing agreement to an alternative
schedule for development.
B. Whenever feasible, target dwelling units and density bonus dwelling units should be
built on-site (within the boundary of the proposed development) and, whenever
reasonably possible, be distributed throughout the project site.
C. Whenever feasible, target dwelling units should be located on sites that are in proximity
to, or will provide access to, employment opportunities, urban services, or major roads or
other transportation and commuter rail facilities (i.e., freeways, bus lines) and that are
compatible with adjacent land uses.
D. Whenever feasible, target dwelling units should vary in size and number of bedrooms, in
response to affordable housing demand priorities of the city.
E. Density bonus projects shall comply with all applicable development standards, except
those which may be modified as an incentive or concession, or as otherwise provided for
in this chapter. In addition, all units must conform to the requirements of the applicable
building and housing codes. The design of the target dwelling units shall be reasonably
consistent or compatible with the design of the total project development in terms of
appearance, materials and finished quality.
F. No building permit shall be issued, nor any development approval granted, for a
development which does not meet the requirements of this chapter. No target dwelling
unit shall be rented or sold except in accordance with this chapter.
G. Upon the request of the applicant, the parking ratio (inclusive of handicap and guest
parking) for a housing development that conforms to the requirements of Section
21.86.040(A) of this chapter shall not exceed the ratios specified in Table E or as noted,
below. If the applicant does not request the parking ratios specified in this section or the
project does not conform to the requirements of Section 21.86.040(A) of this chapter, the
parking standards specified in Chapter 21.44 of this code shall apply.
1. If a development includes the maximum percentage of low- or very low-income
units provided for in Section 21.86.040(A) and is located within one-half mile of a
major transit stop, as defined in the State Public Resources Code (subdivision (b) of
Section 21155), and there is unobstructed access to the major transit stop from the
development, then, upon the request of the developer, the city shall not impose a
vehicular parking ratio, inclusive of handicapped and guest parking, that exceeds 0.5
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spaces per bedroom. For purposes of this subsection, a development shall have
unobstructed access to a major transit stop if a resident is able to access the major
transit stop without encountering natural or constructed impediments.
2. If a development consists solely of rental units, exclusive of a manager’s unit or
units, with an affordable housing cost to lower income families, as provided in State
Health and Safety Code Section 50052.5, then, upon the request of the developer, the
city shall not impose a vehicular parking ratio, inclusive of handicapped and guest
parking, that exceeds the following ratios:
a. If the development is located within one-half mile of a major transit stop,
as defined in State Public Resources Code (subdivision (b) of Section 21155), and
there is unobstructed access to the major transit stop from the development,
the ratio shall not exceed 0.5 spaces per unit.
b. If the development is a for-rent housing development for individuals who
are 62 years of age or older that complies with State Civil Code (Sections 51.2
and 51.3), the ratio shall not exceed 0.5 spaces per unit. The development shall
have either paratransit service or unobstructed access, within one-half mile, to
fixed bus route service that operates at least eight times per day.
c. If the development is a special needs housing development, as defined in
State Health and Safety Code (section 51312), the ratio shall not exceed 0.3
spaces per unit. The development shall have either paratransit service or
unobstructed access, within one-half mile, to fixed bus route service that
operates at least eight times per day.
3. If the total number of parking spaces required for a development is other than a
whole number, the number shall be rounded down to the next whole number.
4. For purposes of this section, a housing development may provide “on-site”
parking through tandem parking or uncovered parking, but not through on-street
parking.
5. The applicant may request parking incentives or concessions beyond those
provided in this section, subject to the findings specified in Section 21.86.050(A)(2) of
this chapter.
6. Notwithstanding subsections (G)(1) and (G)(2) of this section, if the city or an
independent consultant has conducted an area-wide or citywide parking study in the
last seven years, then the city may impose a higher vehicular parking ratio not to
exceed the ratio described in Table E, based upon substantial evidence found in the
parking study, that includes, but is not limited to, an analysis of parking availability,
differing levels of transit access, walkability access to transit services, the potential for
shared parking, the effect of parking requirements on the cost of market-rate and
subsidized developments, and the lower rates of car ownership for low- and very low-
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income individuals, including seniors and special needs individuals. The city shall pay
the costs of any new study. The city shall make findings, based on a parking study
completed in conformity with this paragraph, supporting the need for the higher
parking ratio.
Table E
Parking Ratio for Housing Developments
Dwelling Unit Size On-Site Parking Ratio
0-1 bedrooms 1 space per unit
2-3 bedrooms 2 spaces per unit
4 or more bedrooms 2.5 spaces per unit
(Ord. CS-311 § 1, 2017; Ord. CS-242 § 11, 2014; Ord. NS-794 § 11, 2006)
21.86.100 Affordability tenure.
A. All low- and very low-income rental dwelling units that qualified the housing project for
a density bonus shall remain restricted and affordable to the designated group for a period
of at least 55 years, or a longer period of time if required by the construction or mortgage
financing assistance program, mortgage insurance program, or rental subsidy program.
Rents for the target dwelling unit(s) shall be set at an affordable rent as defined in Section
50053 of the Health and Safety Code.
B. All very low-, low- and moderate-income for-sale dwelling units that qualified the
housing project for a density bonus shall be subject to the following:
1. The initial occupant(s) of the target dwelling unit(s) shall be persons and families
of very low, low or moderate income, as required, and the units shall be offered at an
affordable housing cost as defined in Section 50052.5 of the Health and Safety Code.
2. Unless in conflict with the requirements of another public funding source or law,
the target dwelling unit(s) shall be subject to an equity sharing agreement that
specifies:
a. Upon resale, the seller of the unit shall retain the value of any
improvements, the down payment, and the seller’s proportionate share of
appreciation.
b. Upon resale, the city shall recapture any initial subsidy and its
proportionate share of appreciation, which shall then be used within five years
for any of the purposes described in subdivision (e) of Section 33334.2 of the
Health and Safety Code that promote homeownership.
i. For the purposes of this subsection, the city’s initial subsidy shall be equal
to the fair market value of the home at the time of initial sale minus the
initial sale price to the moderate-income household, plus the amount of any
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down payment assistance or mortgage assistance. If upon resale the market
value is lower than the initial market value, then the value at the time of the
resale shall be used as the initial market value.
ii. For the purposes of this subsection, the city’s proportionate share of
appreciation shall be equal to the ratio of the city’s initial subsidy to the fair
market value of the home at the time of initial sale.
3. If the city provides a direct financial contribution to the housing development
through participation in cost of infrastructure, write-down of land costs, or
subsidizing the cost of construction, the target dwelling unit(s) shall remain affordable
to the designated income group for at least 30 years.
C. For rental projects, the city or its designee shall have a one-time first right of refusal to
purchase any project containing affordable units offered for sale at the end of the
minimum tenure of affordability. The first right of refusal to purchase the rental project
shall be submitted in writing to the housing and neighborhood services director. Within 90
days of its receipt, the city shall indicate its intent to exercise the first right of refusal for
the purpose of providing affordable housing. (Ord. CS-280 § 4, 2015; Ord. CS-242 § 12,
2014; Ord. CS-164 § 12, 2011; Ord. NS-794 § 11, 2006)
21.86.110 Application process.
A. The granting of a density bonus, incentive or concession, pursuant to this chapter, shall
not be interpreted, in and of itself, to require a general plan amendment, zone code
amendment, local coastal plan amendment, zone change, other discretionary approval, or
the waiver of a city ordinance or provisions of a city ordinance unrelated to development
standards.
B. Preliminary Application. A preliminary application may be submitted prior to the
submittal of any formal development application for a housing project that includes a
request for a density bonus, incentive(s) or concession(s). The preliminary application
should include the following information:
1. A brief description of the proposal including the number of target dwelling units
and density bonus units proposed;
2. The zoning, general plan designations and assessors parcel number(s) of the
project site;
3. A site plan, drawn to scale, which includes: building footprints, driveway and
parking layout, existing contours and proposed grading;
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4. A letter identifying what specific density bonus, incentives or concessions (e.g.,
standards modifications, additional density bonus, or fee waiver, etc.) are being
requested of the city; and
5. The planning division shall provide to an applicant/developer, a letter that
identifies project issues of concern and the procedures for compliance with this
chapter.
C. Formal Application. A request for a density bonus, incentive(s) or concession(s),
pursuant to this chapter, does not require a discretionary approval. The request shall be
processed as part of the development applications for a housing development, as
otherwise required in other sections of this code (e.g., site development plan, tentative
map, parcel map, planned unit development, conditional use permit, redevelopment
permit, etc.).
1. If the project involves a request for direct financial incentives from the city, then
any action by the planning commission on the application shall be advisory only, and
the city council shall have the authority to make the final decision on any
discretionary permits related to the project.
2. The following information shall be included with the development application(s)
required for the project:
a. A legal description of the total site proposed for development of the
target dwelling units including a statement of present ownership and present
and proposed zoning;
b. A letter signed by the present owner stating what specific density bonus,
incentives or concessions, waivers or modifications in development standards
are being requested from the city;
c. A detailed vicinity map showing the project location and such details as
the location of the nearest commercial retail, transit stop, potential employment
locations, park or recreation facilities or other social or community service
facilities;
d. Site plans, designating the total number of units proposed on the site,
including the number and location of target dwelling units and density bonus
dwelling units, and supporting plans per the application submittal requirements;
e. In the case of a request for any incentive(s) or concession(s), evidence
that the request will result in identifiable and actual cost reductions in
accordance with the provisions of Section 21.86.050 of this chapter;
f. In the case of a request for a waiver or reduction of development
standards, pursuant to Section 21.86.060 of this chapter, evidence that the
development standard being waived or reduced will have the effect of physically
precluding the construction of the development at the densities or with the
concessions or incentives permitted by this chapter;
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g. In the case of a condominium conversion request, a report with sufficient
evidence to determine whether replacement dwelling units are required
pursuant to Section 21.86.040(K);
h. In the case of a request for a density bonus on property that contains or
did contain rental dwelling units, a report with sufficient evidence to determine
whether replacement dwelling units are required pursuant to Section
21.86.040(K); and
i. The number of parking spaces proposed and whether applicant is
requesting a parking ratio pursuant to Section 21.86.090(G).
3. Upon submittal, the planning division will review the application for
completeness within the timelines specified in Government Code Section 65943. If
the application is determined to be complete, the planning division shall so notify the
applicant in writing, along with a determination as to the following:
a. The amount of density bonus, calculated pursuant to Section
21.86.040(B), for which the applicant is eligible;
b. If the applicant requests a parking ratio pursuant to Section
21.86.090(G)(6), the parking ratio for which the applicant is eligible; and
c. If the applicant requests incentives or concessions pursuant to Section
21.86.050, or waivers or reductions of development standards pursuant to
Section 21.86.060, whether the information provided in the application is
adequate for the city to make a determination as to those incentives,
concessions, or waivers or reductions of development standards.
4. Any determination required by paragraph 3 above shall be based on the
development project at the time the application is deemed complete. The local
government shall adjust the amount of density bonus and parking ratios awarded
pursuant to this section based on any changes to the project during the course of
development.
5. The city planner is authorized to modify all administrative procedures, forms,
checklists, and templates as necessary to ensure expeditious processing of a density
bonus application consistent with this chapter.
(Ord. CS-280 § 5, 2015; Ord. CS-242 § 13, 2014; Ord. CS-164 § 11, 2011; Ord. NS-794 §
11, 2006)
21.86.120 Findings for approval.
A. When a project involves a request for a density bonus, incentive(s) or concession(s), the
following findings shall be made as part of the approval of the development application(s)
required for the project:
1. The project is consistent with the provisions of this chapter.
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2. The requested incentive(s) or concession(s) will result in identifiable and actual
cost reductions.
3. In cases where an applicant requests a waiver or reduction of development
standards, pursuant to Section 21.86.060, the requested waiver or reduction of
development standard(s) is necessary to avoid physically precluding the construction
of a housing development at the densities or with the incentives or concessions
permitted by this chapter.
4. The requested incentive(s) or concession(s), and/or waiver(s) or reduction(s) of
development standards, if any, will not result in an adverse impact, as defined in
paragraph (2) of subdivision (d) of Section 65589.5 of the California Government
Code, to the public health and safety, the environment, or on any real property that is
listed in the California Register of Historical Resources; or, if the request will result in
an adverse impact, then the request may be approved if there is no feasible method
to satisfactorily mitigate or avoid the specific adverse impact.
5. In cases where an applicant requests to convert apartment units to
condominiums, the condominium conversion project shall not result in a reduction in
the affordable housing stock for lower-income groups, as of most recent inventory.
6. For development located in the coastal zone, the requested density bonus, and
any requested incentive(s), concession(s), and/or waiver(s) or reduction(s) of
development standards, are consistent with this chapter and Division 20
(commencing with Section 30000) of the Public Resources Code.
7. The requested incentive(s) or concession(s), and/or waiver(s) or reduction(s) of
development standards would be contrary to state or federal law. (Ord. CS-242 §§ 14,
15, 2014; Ord. NS-889 § 3, 2008; Ord. NS-794 § 11, 2006)
21.86.130 Density bonus housing agreement.
A. Applicants/developers, requesting a density bonus, incentives or concessions pursuant
to this chapter, shall demonstrate compliance with this chapter by executing a density
bonus housing agreement prepared by the city housing and neighborhood services
director and submitted to the developer for signature.
B. Density bonus housing agreements for projects involving a request for direct financial
incentives from the city shall be subject to city council approval; otherwise, the agreement
shall be subject to the approval of the community and economic development director.
C. Following the approval and the signing by all parties, the completed density bonus
housing agreement, with approved site development plan, shall be recorded against the
entire development, including market-rate lots/units; and the relevant terms and
Sept. 1, 2020 Item #5 Page 56 of 194
conditions therefrom filed and recorded as a deed restriction or regulatory agreement on
those individual lots or units of a property which are designated for the location of target
dwelling units.
D. The approval and signing by all parties of the density bonus housing agreement shall
take place prior to final map approval, and the agreement shall be recorded concurrent
with the final map recordation or, where a map is not being processed, prior to issuance of
building permits for such lots or units.
E. The density bonus housing agreement shall be binding to all future owners and
successors in interest.
F. A density bonus housing agreement for a housing development or condominium
conversion project processed pursuant to this chapter shall include, but not be limited to,
the following:
1. The number of density bonus dwelling units granted;
2. The number and type (e.g., restricted to lower- or moderate-income households)
of target dwelling units proposed;
3. The unit size(s) (square footage) of target dwelling units and the number of
bedrooms per target dwelling unit;
4. The proposed location of the target dwelling units;
5. Schedule for production of target dwelling units;
6. Incentives or concessions provided by the city;
7. Where applicable, tenure and conditions governing the initial sale of for-sale
target units;
8. Where applicable, tenure and conditions establishing rules and procedures for
qualifying tenants, setting rental rates, filling vacancies, and operating and
maintaining units for rental target dwelling units; and
9. Where applicable, requirements for other documents to be approved by the city,
such as marketing, leasing and management plans; financial assistance/loan
documents; resale agreements; and monitoring and compliance plans. (Ord. CS-164
§§ 12, 14, 2011; Ord. NS-794 § 11, 2006)
21.86.140 Agreement processing fee.
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The city council may establish by resolution, fees to be paid by the applicant to defray the city’s
cost of preparing and/or reviewing all density bonus housing agreements. (Ord. NS-794 § 11,
2006)
21.86.150 Severability.
If any provision of this chapter or the application thereof to any person or circumstances is held
invalid, the remainder of the chapter and the application of the provision to other persons not
similarly situated or to other circumstances shall not be affected thereby. (Ord. CS-102 § CXVI,
2010; Ord. NS-794 § 11, 2006)
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This Information Bulletin outlines the development and
processing requirements to receive the benefits provided for
under the State Density Bonus Law.
BACKGROUND
State Density Bonus Law (Gov. Code §65915 - 65918) allows a
developer to increase density on a property above the
maximum set under a city’s local land use plan (Carlsbad
General Plan). In addition, qualifying applicants can also
receive reductions in required development standards such as
setbacks, height limits, and parking requirements. In exchange
for the increased density, a certain number of the new
dwelling units must be reserved for very low, low, or
moderate-income households, seniors or the other eligible
projects listed below.
PROJECT ELIGIBILITY
Any housing development that proposes five or more units
and incorporates at least one of the requirements below is
eligible for a density bonus.
• 5% units restricted to “Very Low Income”
• 10% units restricted to “Low Income” or “Moderate
Income”
• 10% units restricted for transitional foster youth,
disabled veterans, or homeless
• 20% units for “Low Income” student housing
• A senior housing project
• An age-restricted mobile home park
• Projects which include a child care facility
Units must be restricted to their level of affordability for at
least 55 years by a recorded document. Eligibility is
established by state law. A city may not enact or impose local
laws that conflict with State law or prohibit what the
legislature intends to authorize.
HOW IS DENSITY BONUS CALCULATED?
The number of additional units allowed under this program is
set on a sliding scale, based on two factors:
• The percentage of units in the project that will be set
aside as affordable; and,
• The household income category of those affordable
units (very low, low, or moderate household income).
State law requires that all density calculations resulting in
ANY fractional units shall be rounded up to the next whole
number. This applies to both base density and density bonus
calculations.
Notwithstanding the above, State law requires that the
percentage of affordable units on the site must exceed the
percentage established in the sliding scale. The city interprets
this requirement to mean that the fractional percentage of
units being reserved as affordable must be rounded down to
the nearest whole number.
Also, while the city utilizes a “mid-range” density calculation
for determining the allowable number of units on a
property, state law requires that density bonus be calculated
based upon the maximum density allowed under the zoning
ordinance.
THEORETICAL EXAMPLE
A property is 1.003 net acres in size, with a zoning designation
of R-15 (15 dwelling units per acre). This results in a maximum
base density of 15.05 units for this site (1.003 acres multiplied
by 15 units per acre), which rounds up to 16 units.
The applicant proposes that two of the units will be reserved
for low-income households. This results in 12.5% of the 16
units that will be reserved for affordable housing, which
rounds down to 12%.
Based on the sliding scale found in the attached Density
Bonus Table, with 12% of the units reserved as affordable, the project’s base density can increase by 23%, for a total of 19.68
units, which rounds up to 20 total units.
WHAT ARE CONCESSIONS/INCENTIVES?
In many cases, a development project must be modified
and/or reduced to comply with established objective design
standards and other regulations such as limits/requirements
on building height, setback, parking, and on-site open space
requirements.
Concessions and incentives, as defined under State law, allow
a developer to deviate from those design standards and/or
regulations when such regulations potentially make the
project economically infeasible for the developer to build.
Documents Referenced
State Density Bonus Law (Gov. Code §65915 - 65918)
Density Bonus Ordinance (Carlsbad Muni. Code Ch. 21.86)
Density Bonus Application Checklist
Density Bonus Calculation Chart
EXHIBIT 4
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The number of concessions/incentives that can be requested
by a developer varies by the amount and type of reserved
affordable units being proposed, as reflected in the chart
below.
Percentages between these ranges are rounded down. For
example, the sample project that reserved 12% of the units
for low income receives one concession/incentive.
Income
Category
% of
Reserved Units
Very Low 5% 10% 15% Up to 80%
Low 10% 20% 30% Up to 80%
Moderate 10% 20% 30% Up to 20%
Senior n/a n/a 100% n/a
Max. # of Incentives 1 2 3 4*
*To qualify for 4 incentives, a project must reserve at least 80% of the units
for lower income households (very low, low, or combination thereof). The remaining 20% may be reserved for moderate income households.
HOW DO YOU DETERMINE ECONOMIC INFEASIBILITY?
As part of the request for a concession/incentive, the
applicant must provide evidence that the design
standard/regulation causes the project to become too
expensive to build. This can be accomplished through a
financial pro-forma or other similar study or analysis.
The study must demonstrate that the requested
concession/incentive results in identifiable, financially
sufficient, and actual cost reductions that contribute
significantly to the economic feasibility of the reserved
affordable units.
WHAT ARE WAIVERS?
Waivers are yet another form of assistance under state law,
separate from concessions and incentives. A waiver is a
reduction in development standards and other regulations
when those requirements potentially make the construction
of the project physically infeasible, if not approved.
Unlike concessions and incentives, there is no limit in the
number of waivers an applicant can request. Furthermore,
while the developer must justify the need for a waiver, a pro-
forma (or other similar analysis) is not required.
CAN THE CITY DENY A CONCESSION/INCENTIVE OR
WAIVER?
Yes. Nothing in state law requires a local government to grant
an incentive or waiver that will potentially result in a specific,
adverse impact upon public health, safety, the environment
or on any property listed in the California Register of Historic
Resources. Issues to be aware of when evaluating potential
development locations include the following non-exhaustive
list:
• A proposed density bonus project that would be located
within an airport compatibility zone found to be
inconsistent with the compatibility criteria
• A proposed density bonus project that would be located
within a FEMA floodway
• A proposed density bonus project that would be located
at a Hazardous Waste Site, pursuant to California
Government Code Section 65962.5
• A proposed density bonus project that would be located
within a High Fire Severity Overlay Zone
Additionally, State Density Bonus Law provides that it shall
not be construed to supersede or in any way alter or lessen
the effect or application of the California Coastal Act of 1976,
and further provides that the granting of a density bonus or
an incentive shall not be interpreted, in and of itself, to
require a local coastal plan amendment.
The burden of proof is on the city to demonstrate if there is
no feasible method to satisfactory mitigate or avoid the
specific adverse impact. Under the law, the court shall award
the plaintiff attorney's fees and costs should the City not
adequately justify the denial of a concession/incentive or
waiver.
YOUR OPTIONS FOR SERVICE
Formal application(s) for a density bonus project will be
required to submit information requested under the Density
Bonus Supplemental Application Checklist, as required under
Carlsbad Municipal Code §21.86.040. To improve process
review, an appointment is required to walk through project
submittal and processing requirements.
NOTE: Please refer to State Density Bonus Law Government
Code (§65915 et seq.) for additional details with respect to
conformance/associated regulations.
◊ ◊ ◊ ◊
Sept. 1, 2020 Item #5 Page 76 of 194
The information listed in this checklist is required to be completed for all residential development applications being
processed under Government Code §65915 – 65918 (State Density Bonus Law). Please prepare the required
materials/information described in this checklist and submit in one document entitled “Supplemental Application –
Density Bonus Program”. Refer to Information Bulletin P-## for additional information.
❏ PROJECT LOCATION
Include the street address and APN(s) of the subject property.
❏
PROPERTY DESCRIPTION
Include information about the property and immediate area such as general location, prior uses on-site,
site characteristics (i.e., slopes, habitat, drainage), neighborhood setting, General Plan designation,
zoning designation, and maximum density allowed by zoning.
❏
PROJECT DESCRIPTION
Describe the proposed project. Please make sure to include the following information.
• Total number of lots/units proposed (maximum density and density bonus units)
• Type of housing proposed and any anticipated construction phasing
• Number, location and income level of the proposed affordable units
• Project access, infrastructure, and any proposed amenities/open space
❏
DENSITY CALCULATIONS
Indicate the number of lots proposed and how many are proposed to be designated as affordable. Include
the following information:
• Show all density calculations
• Income levels of the affordable units
• Number of “Concessions/Incentives” requested
• Number of “Waivers” requested
❏
CONCESSION(S)/INCENTIVE(S), if requested1
Please provide evidence demonstrating that the requested concession/incentive results in identifiable,
financially sufficient, and actual cost reductions that contribute significantly to the economic feasibility of
the reserved affordable units. Please include the following in the response.
• Provide specific information on and discussion of each concession/incentive proposed
• Include discussion of why the findings to deny grant of the proposed concession/incentive are
not supportable for the proposed project:
o Why the concession/incentive is required to provide for affordable housing costs, or for
rents to targeted units to be set as provided under state law?
o Would the grant of the concession/incentive have a specific adverse impact upon public
health and safety or the physical environment or listed historical property? If yes, are there
Community Development
Planning Division
1635 Faraday Avenue
(760) 602-4610
www.carlsbadca.gov
DENSITY BONUS
SUPPLEMENTAL CHECKLIST
P-XX
Sept. 1, 2020 Item #5 Page 77 of 194
feasible methods to mitigate or avoid such impacts without rendering the development
unaffordable?
❏
WAIVERS(S), if requested2
Please provide evidence demonstrating that the requested Waiver from a required development
standard is necessary in order for development to be physically feasible. Please include the following in
the response.
• Provide specific information on and discussion of each concession/incentive proposed
• Provide specific information on and discussion of each waiver/reduction proposed. Include
discussion of why the findings to deny grant of the proposed waivers/reductions are not
supportable for the proposed project:
o How would application of the development standard proposed to be waived/reduced
physically preclude the construction of the development at the density proposed or with
proposed concessions/incentives?
o Would the waiver or reduction have a specific adverse impact upon public health and safety
or the physical environment or listed historical property? If yes, are there feasible methods
to mitigate or avoid such impacts without rendering the development unaffordable?
1 Cities are required to grant concessions or incentives (referred to as concessions) to a developer that seeks and agrees to include affordable units in their development. One to three concessions are available for each development depending on the percentage of affordable housing that will be included within the development. A concession is one of three things (Gov. Code §65915, subd. (k)(1)-(3)):
• A reduction in site development standards or a modification of zoning code requirements or architectural design requirements that exceed minimum building standards that result in identifiable, financially sufficient and actual costs reductions. Development Standard” includes a site or construction
condition, including, but not limited to, a height limitation, a setback requirement, a floor area ratio, an onsite open-space requirement, or a parking ratio
that applies to a residential development pursuant to any ordinance, general plan element, specific plan, charter, or other local condition, law, policy, resolution, or regulation. (Gov. Code §65915, subd. (o)(1)).
• Approval of mixed use zoning in conjunction with the housing project if commercial, office, industrial, or other land uses will reduce the cost of the housing development and if such uses are compatible with the housing project and the existing or planned development in the area.
• Other regulatory concessions proposed by the developer or city that result in identifiable, financially sufficient and actual cost reductions.
The City shall grant the concession unless one or more of the following written findings can be made (Gov. Code §65915, subd. (d)(1)(A)-(C)):
• The concession is not required in order to provide for affordable housing costs, or for rents for the targeted units.
• The concession would have a “specific adverse impact upon public health and safety or the physical environment or on any real property that is listed in the California Register of Historical Resources and for which 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.”
• The concession would be contrary to state and federal law.
2 In addition to concessions, an applicant may submit a proposal for a waiver or reduction (referred to as waiver) of development standards. (Gov. Code §65915, subd. (e)(1)). In no case may a city apply any development standard that will have the effect of physically precluding the construction of a development at the density or concessions permitted. The City shall grant the waiver unless one or more of the following written findings can be made (Gov. Code §65915, subd.
(e)(1)):
• The waiver will have a specific adverse impact upon health, safety, or the physical environment and for which there is no feasible method to satisfactorily
mitigate or avoid the specific adverse impact.
• The waiver will have a specific adverse impact on any real property listed in California Register of Historical Resources.
• The waiver would be contrary to state and federal law.
Sept. 1, 2020 Item #5 Page 78 of 194
DENSITY BONUS TABLE
% of Total Units
Reserved
Affordable
Very Low Income
Density Bonus (1)
Low Income
Density Bonus (2)
Moderate
Income Density
Bonus (3)
Land Donation
Density Bonus (4)
Senior Density
Bonus (5)
5% 20% - - - 20%
6% 22.5% - - - 20%
7% 25% - - - 20%
8% 27.5% - - - 20%
9% 30% - - - 20%
10% 32.5% 20% 5% 15% 20%
11% 35% 21.5% 6% 16% 20%
12% 35% 23% 7% 17% 20%
13% 35% 24.5% 8% 18% 20%
14% 35% 26% 9% 19% 20%
15% 35% 27.5% 10% 20% 20%
16% 35% 29% 11% 21% 20%
17% 35% 30.5% 12% 22% 20%
18% 35% 32% 13% 23% 20%
19% 35% 33.5% 14% 24% 20%
20% 35% 35% 15% 25% 20%
21% 35% 35% 16% 26% 20%
22% 35% 35% 17% 27% 20%
23% 35% 35% 18% 28% 20%
24% 35% 35% 19% 29% 20%
25% 35% 35% 20% 30% 20%
26% 35% 35% 21% 31% 20%
27% 35% 35% 22% 32% 20%
28% 35% 35% 23% 33% 20%
29% 35% 35% 24% 34% 20%
30% 35% 35% 25% 35% 20%
31% 35% 35% 26% 35% 20%
31% 35% 35% 27% 35% 20%
33% 35% 35% 28% 35% 20%
34% 35% 35% 29% 35% 20%
35% 35% 35% 30% 35% 20%
36% 35% 35% 31% 35% 20%
37% 35% 35% 32% 35% 20%
38% 35% 35% 33% 35% 20%
39% 35% 35% 34% 35% 20%
40% 35% 35% 35% 35% 20%
(1) Government Code §65915(f)(2)
(2) Government Code §65915(f)(1)
(3) Government Code §65915(f)(4)
(4) Government Code §65915(g)(1)
(5) Government Code §65915(f)(3); No affordable units are required for senior housing units to receive a density bonus.
Sept. 1, 2020 Item #5 Page 79 of 194
Item No.
Application complete date: n/a
P.C. AGENDA OF:June 17, 2020 Project Planner: Corey Funk
Project Engineer: n/a
SUBJECT: ZCA2020-0001/LCPA2020-0005 – DENSITY BONUS AMENDMENTS 2020 – Request for a
recommendation to approve a Zone Code Amendment and Local Coastal Program
Amendment to update the city’s density bonus regulations to reflect changes in state
law. The city planner has determined that the amendments are exempt from the
California Environmental Quality Act (CEQA) pursuant to CEQA Guidelines Section
15061(b)(3) because the amendments do not have the potential to cause a significant
effect on the environment.
I.RECOMMENDATION
That the Planning Commission ADOPT Planning Commission Resolution No. 7373 RECOMMENDING
APPROVAL of Zone Code Amendment ZCA 2020-0001 and Local Coastal Program Amendment LCPA
2020-0005, based on the findings contained therein.
II.PROJECT DESCRIPTION AND BACKGROUND
A.State Density Bonus Law
State density bonus law (Government Code §65915 – 65918, see Attachment 2) allows a
developer to increase density (the number of new, market-rate dwelling units) on a
property above the maximum set under a city’s local land use plan (Carlsbad General Plan).
In addition, qualifying applicants can also receive reductions in required development
standards such as setbacks, height limits and parking requirements when such deviations
are necessary to achieve the density allowed under state law. In exchange for a density
increase (up to a maximum of 35 percent), a certain number of the new dwelling units must
be reserved for very low, low, or moderate-income households, or for other qualifying
housing types such as senior housing, for a period of not less than 55 years.
The requirement for a local density bonus ordinance is stipulated under state density bonus
law, as reflected below:
§65915(a)
“All cities…shall adopt an ordinance that specifies how compliance with this section will be
implemented. Failure to adopt an ordinance shall not relieve a city…from complying with this
section.”
4
EXHIBIT 5
Sept. 1, 2020 Item #5 Page 80 of 194
B.Proposed Ordinance
It is important to note that a jurisdiction may not enact local laws that conflict with state law
or prohibit what the legislature intends to authorize1. The proposed ordinance found in
Exhibit A of Attachment 1 complies with the requirements of state density bonus law and
can be summarized as follows.
•The ordinance amendment is required as part of the city’s Housing Element Program
3.3, which requires that the city promote the use of (current) density bonus allowances
to help facilitate the development of housing for low and very low-income households.
Completing this requirement is important to show program compliance to the
Department of Housing and Community Development (HCD) as the city proceeds with
the 6th Cycle Housing Element.
•The ordinance amendment captures changes made in state density bonus law by
Assembly Bill 1763 since the city’s local ordinance was last amended in 2019.
•Over the past several years, the state legislature has made several modifications to
density bonus law to encourage more affordable housing development. More changes
are expected in the coming years. These state-initiated modifications often require
regular changes/updates to our local code. As such, the proposed ordinance focuses
more on the city’s permit processing requirements for density bonus applications, while
deferring to the state law on density bonus requirements and allowances. This will help
reduce the need to process local code amendments when state law changes in the
future.
•Educational materials have also been prepared to help customers navigate density
bonus law and city processing requirements; specifically, a department information
bulletin (Attachment 3). These materials are provided to the Planning Commission as
informational items, no action is requested. Staff can update the information bulletin as
needed due to future changes to state law. The sections of the bulletin are described
below:
o Density Bonus Information Bulletin
This information bulletin outlines the city’s development and processing
requirements to receive the benefits provided for under the state law in simple
direct terms and includes the following topics: project eligibility; applicant
permitting requirements; explanation on how density bonus is calculated; what
qualifies as concessions, incentives, or waivers; and the findings the city must make
to deny a concession, incentive, or waiver.
o Density Bonus Supplemental Checklist
This supplemental application checklist is new for city applicants and will be
required to be completed for all density bonus applications being processed under
Government Code §65915. This helps staff and the public better understand how
1Cal Const Art XI, Section 7; Northern Cal. Psychiatric Soc’y v. City of Berkeley (1986) 178 CA 3d 90 Sept. 1, 2020 Item #5 Page 81 of 194
density bonus law is being applied to the project and why requested standards need
to be waived to ensure that the project follows state law.
o Density Bonus Calculation Chart
This chart provides the specific density bonuses to be awarded, pursuant to
state law, in relation to the affordable housing type in one easy to read location
(bonus awards in the state density bonus law are not centrally located, making it
difficult for customers to follow).
III. ANALYSIS
The proposed amendments to the Zone Code repeal Chapter 21.86 and replace it with the proposed City
Council ordinance provided in Exhibit A of Attachment 1. Assembly Bill 1763, effective January 1, 2020,
amends Section 65915 of the Government Code with changes that are designed to help reduce costs
associated with the development of affordable housing. A summary2 of the three main changes enacted
by Assembly Bill 1763 is shown below:
• Existing density bonus law provides developers up to a 35% increase in project densities, set on
a sliding scale based on the amount of affordable housing provided. For housing projects where
100% of the units are affordable to low and very low income residents, Assembly Bill 1763 more
than doubles the density bonus to 80%. If the project is located within a half mile of a major
transit stop, Assembly Bill 1763 also eliminates all restrictions on density and allows a height
increase of up to three stories or 33 feet.
• Under existing density bonus law, projects qualifying for a density bonus are currently entitled
to up to three incentives and concessions, depending on the amount of affordable units
provided. Assembly Bill 1763 provides a fourth incentive and concession for 100% affordable
projects.
• Existing density bonus law also sets special parking ratio requirements for qualifying
projects. For housing projects that qualify as a special needs or supportive housing
development, Assembly Bill 1763 completely eliminates all local parking requirements.
The proposed amendments are consistent with state density bonus law and fully implement the changes
made by Assembly Bill 1763. The proposed amendments are consistent with the Carlsbad General Plan
and directly implement General Plan Housing Element Program 3.3, which requires the city to ensure
consistency with state density bonus law. The amendment is also consistent with other provisions of
the Zoning Ordinance not being amended. Compliance with the Growth Management Plan is evaluated
on a case by case basis for development projects that request a density bonus.
The proposed amendments affect land within the airport influence area, which covers a large portion of
Carlsbad and includes residential properties; however, the amendment is consistent with the adopted
McClellan-Palomar Airport Land Use Compatibility Plan in that it does not propose any land use or
development standard changes that affect compatibility with the plan's safety, noise, airspace
protection and overflight criteria. The Airport Land Use Commission (San Diego County Regional Airport
Authority) reviewed the amendment and found it to be consistent with the McClellan-Palomar Airport
2 Meyers Nave, January 13, 2020, AB 1763 Allows Affordable Housing to be Built Denser and Taller,
https://www.meyersnave.com/ab-1763-allows-affordable-housing-to-be-built-denser-and-taller/ Sept. 1, 2020 Item #5 Page 82 of 194
Land Use Compatibility Plan. A comment letter was submitted to the Airport Land Use Commission in
regard to the determination of consistency for the proposed amendments, which is included along with
the city response in Attachment 4.
Local Coastal Program Amendment LCPA 2020-0005 is required to ensure consistency with Zone Code
Amendment ZCA 2020-0001. The proposed LCP amendment meets the requirements of, and is in
conformity with, with the policies of Chapter 3 of the Coastal Act and all applicable policies of the
Carlsbad LCP not being amended by this amendment. The amendments do not conflict with any
regulation, land use designations or policies, with which development must comply.
IV. ENVIRONMENTAL REVIEW
The city finds that the proposed amendments to the Zone Code are exempt from environmental review
pursuant to the common sense exemption, Section 15061(b)(3) of the California Environmental Quality
Act (CEQA) Guidelines, since there would be no possibility of a significant effect on the environment.
The ordinance being considered specifies how the city will comply with and implement state density
bonus law, and adoption is required pursuant to Government Code §65915(a). The density bonuses,
incentives, and waivers permitted by the ordinance are required by state law, and this ordinance does
not permit any density bonuses, incentives, or waivers other than those required by state law.
ATTACHMENTS:
1. Planning Commission Resolution No. 7373
a. Exhibit A – City Council Ordinance: Density Bonus
2. State Density Bonus Law (Government Code Sections 65915 – 65918)
3. Information Bulletin on Density Bonus
4. Comment letter
Sept. 1, 2020 Item #5 Page 83 of 194
GOVERNMENT CODE - GOV TITLE 7. PLANNING AND LAND USE [65000 - 66499.58] ( Heading of Title 7 amended by Stats. 1974, Ch. 1536. ) DIVISION 1. PLANNING AND ZONING [65000 - 66301] ( Heading of Division 1 added by Stats. 1974, Ch. 1536. )
CHAPTER 4.3. Density Bonuses and Other Incentives [65915 - 65918] ( Chapter 4.3 added by Stats. 1979, Ch. 1207. )
65915. (a) (1) When an applicant seeks a density bonus for a housing development within,
or for the donation of land for housing within, the jurisdiction of a city, county, or
city and county, that local government shall comply with this section. A city,
county, or city and county shall adopt an ordinance that specifies how compliance
with this section will be implemented. Failure to adopt an ordinance shall not relieve a city, county, or city and county from complying with this section.
(2) A local government shall not condition the submission, review, or approval of an
application pursuant to this chapter on the preparation of an additional report or study that is not otherwise required by state law, including this section. This
subdivision does not prohibit a local government from requiring an applicant to
provide reasonable documentation to establish eligibility for a requested density
bonus, incentives or concessions, as described in subdivision (d), waivers or
reductions of development standards, as described in subdivision (e), and parking
ratios, as described in subdivision (p).
(3) In order to provide for the expeditious processing of a density bonus
application, the local government shall do all of the following: (A) Adopt procedures and timelines for processing a density bonus application.
(B) Provide a list of all documents and information required to be submitted with
the density bonus application in order for the density bonus application to be deemed complete. This list shall be consistent with this chapter.
(C) Notify the applicant for a density bonus whether the application is complete in a
manner consistent with the timelines specified in Section 65943.
(D) (i) If the local government notifies the applicant that the application is deemed
complete pursuant to subparagraph (C), provide the applicant with a determination as to the following matters:
(I) The amount of density bonus, calculated pursuant to subdivision (f), for which
the applicant is eligible. (II) If the applicant requests a parking ratio pursuant to subdivision (p), the
parking ratio for which the applicant is eligible.
(III) If the applicant requests incentives or concessions pursuant to subdivision (d)
or waivers or reductions of development standards pursuant to subdivision (e),
Sept. 1, 2020 Item #5 Page 84 of 194
whether the applicant has provided adequate information for the local government to make a determination as to those incentives, concessions, or waivers or
reductions of development standards.
(ii) Any determination required by this subparagraph shall be based on the development project at the time the application is deemed complete. The local
government shall adjust the amount of density bonus and parking ratios awarded
pursuant to this section based on any changes to the project during the course of
development.
(b) (1) A city, county, or city and county shall grant one density bonus, the amount
of which shall be as specified in subdivision (f), and, if requested by the applicant
and consistent with the applicable requirements of this section, incentives or
concessions, as described in subdivision (d), waivers or reductions of development standards, as described in subdivision (e), and parking ratios, as described in
subdivision (p), when an applicant for a housing development seeks and agrees to
construct a housing development, excluding any units permitted by the density bonus awarded pursuant to this section, that will contain at least any one of the
following:
(A) Ten percent of the total units of a housing development for lower income
households, as defined in Section 50079.5 of the Health and Safety Code.
(B) Five percent of the total units of a housing development for very low income households, as defined in Section 50105 of the Health and Safety Code.
(C) A senior citizen housing development, as defined in Sections 51.3 and 51.12 of
the Civil Code, or a mobile home park that limits residency based on age requirements for housing for older persons pursuant to Section 798.76 or 799.5 of
the Civil Code.
(D) Ten percent of the total dwelling units in a common interest development, as
defined in Section 4100 of the Civil Code, for persons and families of moderate
income, as defined in Section 50093 of the Health and Safety Code, provided that
all units in the development are offered to the public for purchase.
(E) Ten percent of the total units of a housing development for transitional foster
youth, as defined in Section 66025.9 of the Education Code, disabled veterans, as defined in Section 18541, or homeless persons, as defined in the federal McKinney-
Vento Homeless Assistance Act (42 U.S.C. Sec. 11301 et seq.). The units described
in this subparagraph shall be subject to a recorded affordability restriction of 55 years and shall be provided at the same affordability level as very low income units.
(F) (i) Twenty percent of the total units for lower income students in a student
housing development that meets the following requirements:
(I) All units in the student housing development will be used exclusively for
undergraduate, graduate, or professional students enrolled full time at an
institution of higher education accredited by the Western Association of Schools and
Colleges or the Accrediting Commission for Community and Junior Colleges. In
order to be eligible under this subclause, the developer shall, as a condition of receiving a certificate of occupancy, provide evidence to the city, county, or city
and county that the developer has entered into an operating agreement or master
lease with one or more institutions of higher education for the institution or institutions to occupy all units of the student housing development with students
from that institution or institutions. An operating agreement or master lease entered into pursuant to this subclause is not violated or breached if, in any
Sept. 1, 2020 Item #5 Page 85 of 194
subsequent year, there are not sufficient students enrolled in an institution of higher education to fill all units in the student housing development.
(II) The applicable 20-percent units will be used for lower income students. For
purposes of this clause, “lower income students” means students who have a household income and asset level that does not exceed the level for Cal Grant A or
Cal Grant B award recipients as set forth in paragraph (1) of subdivision (k) of
Section 69432.7 of the Education Code. The eligibility of a student under this clause
shall be verified by an affidavit, award letter, or letter of eligibility provided by the
institution of higher education that the student is enrolled in, as described in
subclause (I), or by the California Student Aid Commission that the student
receives or is eligible for financial aid, including an institutional grant or fee waiver,
from the college or university, the California Student Aid Commission, or the federal government shall be sufficient to satisfy this subclause.
(III) The rent provided in the applicable units of the development for lower income
students shall be calculated at 30 percent of 65 percent of the area median income for a single-room occupancy unit type.
(IV) The development will provide priority for the applicable affordable units for
lower income students experiencing homelessness. A homeless service provider, as
defined in paragraph (3) of subdivision (d) of Section 103577 of the Health and
Safety Code, or institution of higher education that has knowledge of a person’s homeless status may verify a person’s status as homeless for purposes of this
subclause.
(ii) For purposes of calculating a density bonus granted pursuant to this subparagraph, the term “unit” as used in this section means one rental bed and its
pro rata share of associated common area facilities. The units described in this
subparagraph shall be subject to a recorded affordability restriction of 55 years.
(G) One hundred percent of the total units, exclusive of a manager’s unit or units,
are for lower income households, as defined by Section 50079.5 of the Health and
Safety Code, except that up to 20 percent of the total units in the development may
be for moderate-income households, as defined in Section 50053 of the Health and
Safety Code. (2) For purposes of calculating the amount of the density bonus pursuant to
subdivision (f), an applicant who requests a density bonus pursuant to this
subdivision shall elect whether the bonus shall be awarded on the basis of subparagraph (A), (B), (C), (D), (E), (F), or (G) of paragraph (1).
(3) For the purposes of this section, “total units,” “total dwelling units,” or “total
rental beds” does not include units added by a density bonus awarded pursuant to
this section or any local law granting a greater density bonus.
(c) (1) (A) An applicant shall agree to, and the city, county, or city and county shall
ensure, the continued affordability of all very low and low-income rental units that
qualified the applicant for the award of the density bonus for 55 years or a longer
period of time if required by the construction or mortgage financing assistance program, mortgage insurance program, or rental subsidy program.
(B) (i) Except as otherwise provided in clause (ii), rents for the lower income
density bonus units shall be set at an affordable rent, as defined in Section 50053 of the Health and Safety Code.
Sept. 1, 2020 Item #5 Page 86 of 194
(ii) For housing developments meeting the criteria of subparagraph (G) of paragraph (1) of subdivision (b), rents for all units in the development, including
both base density and density bonus units, shall be as follows:
(I) The rent for at least 20 percent of the units in the development shall be set at an affordable rent, as defined in Section 50053 of the Health and Safety Code.
(II) The rent for the remaining units in the development shall be set at an amount
consistent with the maximum rent levels for a housing development that receives
an allocation of state or federal low-income housing tax credits from the California
Tax Credit Allocation Committee.
(2) An applicant shall agree to, and the city, county, or city and county shall ensure
that, the initial occupant of all for-sale units that qualified the applicant for the
award of the density bonus are persons and families of very low, low, or moderate income, as required, and that the units are offered at an affordable housing cost, as
that cost is defined in Section 50052.5 of the Health and Safety Code. The local
government shall enforce an equity sharing agreement, unless it is in conflict with the requirements of another public funding source or law. The following apply to the
equity sharing agreement:
(A) Upon resale, the seller of the unit shall retain the value of any improvements,
the downpayment, and the seller’s proportionate share of appreciation. The local
government shall recapture any initial subsidy, as defined in subparagraph (B), and its proportionate share of appreciation, as defined in subparagraph (C), which
amount shall be used within five years for any of the purposes described in
subdivision (e) of Section 33334.2 of the Health and Safety Code that promote home ownership.
(B) For purposes of this subdivision, the local government’s initial subsidy shall be
equal to the fair market value of the home at the time of initial sale minus the
initial sale price to the moderate-income household, plus the amount of any
downpayment assistance or mortgage assistance. If upon resale the market value is
lower than the initial market value, then the value at the time of the resale shall be
used as the initial market value.
(C) For purposes of this subdivision, the local government’s proportionate share of appreciation shall be equal to the ratio of the local government’s initial subsidy to
the fair market value of the home at the time of initial sale.
(3) (A) An applicant shall be ineligible for a density bonus or any other incentives or concessions under this section if the housing development is proposed on any
property that includes a parcel or parcels on which rental dwelling units are or, if
the dwelling units have been vacated or demolished in the five-year period
preceding the application, have been subject to a recorded covenant, ordinance, or
law that restricts rents to levels affordable to persons and families of lower or very
low income; subject to any other form of rent or price control through a public
entity’s valid exercise of its police power; or occupied by lower or very low income
households, unless the proposed housing development replaces those units, and either of the following applies:
(i) The proposed housing development, inclusive of the units replaced pursuant to
this paragraph, contains affordable units at the percentages set forth in subdivision (b).
(ii) Each unit in the development, exclusive of a manager’s unit or units, is affordable to, and occupied by, either a lower or very low income household.
Sept. 1, 2020 Item #5 Page 87 of 194
(B) For the purposes of this paragraph, “replace” shall mean either of the following: (i) If any dwelling units described in subparagraph (A) are occupied on the date of
application, the proposed housing development shall provide at least the same
number of units of equivalent size to be made available at affordable rent or affordable housing cost to, and occupied by, persons and families in the same or
lower income category as those households in occupancy. If the income category of
the household in occupancy is not known, it shall be rebuttably presumed that
lower income renter households occupied these units in the same proportion of
lower income renter households to all renter households within the jurisdiction, as
determined by the most recently available data from the United States Department
of Housing and Urban Development’s Comprehensive Housing Affordability Strategy
database. For unoccupied dwelling units described in subparagraph (A) in a development with occupied units, the proposed housing development shall provide
units of equivalent size to be made available at affordable rent or affordable
housing cost to, and occupied by, persons and families in the same or lower income category as the last household in occupancy. If the income category of the last
household in occupancy is not known, it shall be rebuttably presumed that lower
income renter households occupied these units in the same proportion of lower
income renter households to all renter households within the jurisdiction, as
determined by the most recently available data from the United States Department of Housing and Urban Development’s Comprehensive Housing Affordability Strategy
database. All replacement calculations resulting in fractional units shall be rounded
up to the next whole number. If the replacement units will be rental dwelling units, these units shall be subject to a recorded affordability restriction for at least 55
years. If the proposed development is for-sale units, the units replaced shall be
subject to paragraph (2).
(ii) If all dwelling units described in subparagraph (A) have been vacated or
demolished within the five-year period preceding the application, the proposed
housing development shall provide at least the same number of units of equivalent
size as existed at the highpoint of those units in the five-year period preceding the
application to be made available at affordable rent or affordable housing cost to, and occupied by, persons and families in the same or lower income category as
those persons and families in occupancy at that time, if known. If the incomes of
the persons and families in occupancy at the highpoint is not known, it shall be rebuttably presumed that low-income and very low income renter households
occupied these units in the same proportion of low-income and very low income
renter households to all renter households within the jurisdiction, as determined by
the most recently available data from the United States Department of Housing and
Urban Development’s Comprehensive Housing Affordability Strategy database. All
replacement calculations resulting in fractional units shall be rounded up to the next
whole number. If the replacement units will be rental dwelling units, these units
shall be subject to a recorded affordability restriction for at least 55 years. If the proposed development is for-sale units, the units replaced shall be subject to
paragraph (2).
(C) Notwithstanding subparagraph (B), for any dwelling unit described in subparagraph (A) that is or was, within the five-year period preceding the
application, subject to a form of rent or price control through a local government’s valid exercise of its police power and that is or was occupied by persons or families
Sept. 1, 2020 Item #5 Page 88 of 194
above lower income, the city, county, or city and county may do either of the following:
(i) Require that the replacement units be made available at affordable rent or
affordable housing cost to, and occupied by, low-income persons or families. If the replacement units will be rental dwelling units, these units shall be subject to a
recorded affordability restriction for at least 55 years. If the proposed development
is for-sale units, the units replaced shall be subject to paragraph (2).
(ii) Require that the units be replaced in compliance with the jurisdiction’s rent or
price control ordinance, provided that each unit described in subparagraph (A) is
replaced. Unless otherwise required by the jurisdiction’s rent or price control
ordinance, these units shall not be subject to a recorded affordability restriction.
(D) For purposes of this paragraph, “equivalent size” means that the replacement units contain at least the same total number of bedrooms as the units being
replaced.
(E) Subparagraph (A) does not apply to an applicant seeking a density bonus for a proposed housing development if the applicant’s application was submitted to, or
processed by, a city, county, or city and county before January 1, 2015.
(d) (1) An applicant for a density bonus pursuant to subdivision (b) may submit to
a city, county, or city and county a proposal for the specific incentives or
concessions that the applicant requests pursuant to this section, and may request a meeting with the city, county, or city and county. The city, county, or city and
county shall grant the concession or incentive requested by the applicant unless the
city, county, or city and county makes a written finding, based upon substantial evidence, of any of the following:
(A) The concession or incentive does not result in identifiable and actual cost
reductions, consistent with subdivision (k), to provide for affordable housing costs,
as defined in Section 50052.5 of the Health and Safety Code, or for rents for the
targeted units to be set as specified in subdivision (c).
(B) The concession or incentive would have a specific, adverse impact, as defined in
paragraph (2) of subdivision (d) of Section 65589.5, upon public health and safety
or the physical environment or on any real property that is listed in the California Register of Historical Resources and for which there is no feasible method to
satisfactorily mitigate or avoid the specific, adverse impact without rendering the
development unaffordable to low-income and moderate-income households. (C) The concession or incentive would be contrary to state or federal law.
(2) The applicant shall receive the following number of incentives or concessions:
(A) One incentive or concession for projects that include at least 10 percent of the
total units for lower income households, at least 5 percent for very low income
households, or at least 10 percent for persons and families of moderate income in a
common interest development.
(B) Two incentives or concessions for projects that include at least 20 percent of
the total units for lower income households, at least 10 percent for very low income households, or at least 20 percent for persons and families of moderate income in a
common interest development.
(C) Three incentives or concessions for projects that include at least 30 percent of the total units for lower income households, at least 15 percent for very low income
households, or at least 30 percent for persons and families of moderate income in a common interest development.
Sept. 1, 2020 Item #5 Page 89 of 194
(D) Four incentives or concessions for projects meeting the criteria of subparagraph (G) of paragraph (1) of subdivision (b). If the project is located within one-half mile
of a major transit stop, as defined in subdivision (b) of Section 21155 of the Public
Resources Code, the applicant shall also receive a height increase of up to three additional stories, or 33 feet.
(3) The applicant may initiate judicial proceedings if the city, county, or city and
county refuses to grant a requested density bonus, incentive, or concession. If a
court finds that the refusal to grant a requested density bonus, incentive, or
concession is in violation of this section, the court shall award the plaintiff
reasonable attorney’s fees and costs of suit. Nothing in this subdivision shall be
interpreted to require a local government to grant an incentive or concession that
has a specific, adverse impact, as defined in paragraph (2) of subdivision (d) of Section 65589.5, upon health, safety, or the physical environment, and for which
there is no feasible method to satisfactorily mitigate or avoid the specific adverse
impact. Nothing in this subdivision shall be interpreted to require a local government to grant an incentive or concession that would have an adverse impact
on any real property that is listed in the California Register of Historical Resources.
The city, county, or city and county shall establish procedures for carrying out this
section that shall include legislative body approval of the means of compliance with
this section. (4) The city, county, or city and county shall bear the burden of proof for the denial
of a requested concession or incentive.
(e) (1) In no case may a city, county, or city and county 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 section. Subject to paragraph (3), an
applicant may submit to a city, county, or city and county a proposal for the waiver
or reduction of development standards 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 under this section,
and may request a meeting with the city, county, or city and county. If a court finds that the refusal to grant a waiver or reduction of development standards is in
violation of this section, the court shall award the plaintiff reasonable attorney’s
fees and costs of suit. Nothing in this subdivision shall be interpreted to require a local government to waive or reduce development standards if the waiver or
reduction would have a specific, adverse impact, as defined in paragraph (2) of
subdivision (d) of Section 65589.5, upon health, safety, or the physical
environment, and for which there is no feasible method to satisfactorily mitigate or
avoid the specific adverse impact. Nothing in this subdivision shall be interpreted to
require a local government to waive or reduce development standards that would
have an adverse impact on any real property that is listed in the California Register
of Historical Resources, or to grant any waiver or reduction that would be contrary to state or federal law.
(2) A proposal for the waiver or reduction of development standards pursuant to
this subdivision shall neither reduce nor increase the number of incentives or concessions to which the applicant is entitled pursuant to subdivision (d).
(3) A housing development that receives a waiver from any maximum controls on density pursuant to clause (ii) of subparagraph (D) of paragraph (3) of subdivision
Sept. 1, 2020 Item #5 Page 90 of 194
(f) shall not be eligible for, and shall not receive, a waiver or reduction of development standards pursuant to this subdivision, other than as expressly
provided in subparagraph (D) of paragraph (2) of subdivision (d) and clause (ii) of
subparagraph (D) of paragraph (3) of subdivision (f). (f) For the purposes of this chapter, “density bonus” means a density increase over
the otherwise maximum allowable gross residential density as of the date of
application by the applicant to the city, county, or city and county, or, if elected by
the applicant, a lesser percentage of density increase, including, but not limited to,
no increase in density. The amount of density increase to which the applicant is
entitled shall vary according to the amount by which the percentage of affordable
housing units exceeds the percentage established in subdivision (b).
(1) For housing developments meeting the criteria of subparagraph (A) of paragraph (1) of subdivision (b), the density bonus shall be calculated as follows: Percentage Low-Income Units Percentage Density Bonus 10 20 11 21.5 12 23 13 24.5 14 26 15 27.5 17 30.5 18 32 19 33.5 20 35
(2) For housing developments meeting the criteria of subparagraph (B) of
paragraph (1) of subdivision (b), the density bonus shall be calculated as follows: Percentage Very Low Income Units Percentage Density Bonus 5 20 6 22.5 7 25 8 27.5 9 30
Sept. 1, 2020 Item #5 Page 91 of 194
10 32.5 11 35
(3) (A) For housing developments meeting the criteria of subparagraph (C) of
paragraph (1) of subdivision (b), the density bonus shall be 20 percent of the
number of senior housing units.
(B) For housing developments meeting the criteria of subparagraph (E) of
paragraph (1) of subdivision (b), the density bonus shall be 20 percent of the number of the type of units giving rise to a density bonus under that subparagraph.
(C) For housing developments meeting the criteria of subparagraph (F) of
paragraph (1) of subdivision (b), the density bonus shall be 35 percent of the student housing units.
(D) For housing developments meeting the criteria of subparagraph (G) of
paragraph (1) of subdivision (b), the following shall apply:
(i) Except as otherwise provided in clause (ii), the density bonus shall be 80 percent
of the number of units for lower income households. (ii) If the housing development is located within one-half mile of a major transit
stop, as defined in subdivision (b) of Section 21155 of the Public Resources Code,
the city, county, or city and county shall not impose any maximum controls on density.
(4) For housing developments meeting the criteria of subparagraph (D) of
paragraph (1) of subdivision (b), the density bonus shall be calculated as follows: Percentage Moderate-Income Units Percentage Density Bonus 10 5 11 6 12 7 13 8 14 9 15 10 16 11 17 12 18 13 19 14 20 15 21 16 22 17
Sept. 1, 2020 Item #5 Page 92 of 194
23 18 24 19 25 20 26 21 27 22 28 23 29 24 30 25 31 26 32 27 33 28 34 29 35 30 36 31 37 32 38 33 39 34 40 35
(5) All density calculations resulting in fractional units shall be rounded up to the
next whole number. The granting of a density bonus shall not require, or be
interpreted, in and of itself, to require a general plan amendment, local coastal plan amendment, zoning change, or other discretionary approval.
(g) (1) When an applicant for a tentative subdivision map, parcel map, or other
residential development approval donates land to a city, county, or city and county in accordance with this subdivision, the applicant shall be entitled to a 15-percent
increase above the otherwise maximum allowable residential density for the entire development, as follows: Percentage Very Low Income Percentage Density Bonus 10 15 11 16
Sept. 1, 2020 Item #5 Page 93 of 194
12 17 13 18 14 19 15 20 16 21 17 22 18 23 19 24 20 25 21 26 22 27 23 28 24 29 25 30 26 31 27 32 28 33 29 34 30 35
(2) This increase shall be in addition to any increase in density mandated by
subdivision (b), up to a maximum combined mandated density increase of 35
percent if an applicant seeks an increase pursuant to both this subdivision and
subdivision (b). All density calculations resulting in fractional units shall be rounded
up to the next whole number. Nothing in this subdivision shall be construed to enlarge or diminish the authority of a city, county, or city and county to require a
developer to donate land as a condition of development. An applicant shall be
eligible for the increased density bonus described in this subdivision if all of the following conditions are met:
(A) The applicant donates and transfers the land no later than the date of approval
of the final subdivision map, parcel map, or residential development application.
(B) The developable acreage and zoning classification of the land being transferred
are sufficient to permit construction of units affordable to very low income
Sept. 1, 2020 Item #5 Page 94 of 194
households in an amount not less than 10 percent of the number of residential units of the proposed development.
(C) The transferred land is at least one acre in size or of sufficient size to permit
development of at least 40 units, has the appropriate general plan designation, is appropriately zoned with appropriate development standards for development at
the density described in paragraph (3) of subdivision (c) of Section 65583.2, and is
or will be served by adequate public facilities and infrastructure.
(D) The transferred land shall have all of the permits and approvals, other than
building permits, necessary for the development of the very low income housing
units on the transferred land, not later than the date of approval of the final
subdivision map, parcel map, or residential development application, except that
the local government may subject the proposed development to subsequent design review to the extent authorized by subdivision (i) of Section 65583.2 if the design is
not reviewed by the local government before the time of transfer.
(E) The transferred land and the affordable units shall be subject to a deed restriction ensuring continued affordability of the units consistent with paragraphs
(1) and (2) of subdivision (c), which shall be recorded on the property at the time
of the transfer.
(F) The land is transferred to the local agency or to a housing developer approved
by the local agency. The local agency may require the applicant to identify and transfer the land to the developer.
(G) The transferred land shall be within the boundary of the proposed development
or, if the local agency agrees, within one-quarter mile of the boundary of the proposed development.
(H) A proposed source of funding for the very low income units shall be identified
not later than the date of approval of the final subdivision map, parcel map, or
residential development application.
(h) (1) When an applicant proposes to construct a housing development that
conforms to the requirements of subdivision (b) and includes a childcare facility that
will be located on the premises of, as part of, or adjacent to, the project, the city,
county, or city and county shall grant either of the following: (A) An additional density bonus that is an amount of square feet of residential
space that is equal to or greater than the amount of square feet in the childcare
facility. (B) An additional concession or incentive that contributes significantly to the
economic feasibility of the construction of the childcare facility.
(2) The city, county, or city and county shall require, as a condition of approving
the housing development, that the following occur:
(A) The childcare facility shall remain in operation for a period of time that is as
long as or longer than the period of time during which the density bonus units are
required to remain affordable pursuant to subdivision (c).
(B) Of the children who attend the childcare facility, the children of very low income households, lower income households, or families of moderate income shall equal a
percentage that is equal to or greater than the percentage of dwelling units that are
required for very low income households, lower income households, or families of moderate income pursuant to subdivision (b).
(3) Notwithstanding any requirement of this subdivision, a city, county, or city and county shall not be required to provide a density bonus or concession for a
Sept. 1, 2020 Item #5 Page 95 of 194
childcare facility if it finds, based upon substantial evidence, that the community has adequate childcare facilities.
(4) “Childcare facility,” as used in this section, means a child daycare facility other
than a family daycare home, including, but not limited to, infant centers, preschools, extended daycare facilities, and schoolage childcare centers.
(i) “Housing development,” as used in this section, means a development project
for five or more residential units, including mixed-use developments. For the
purposes of this section, “housing development” also includes a subdivision or
common interest development, as defined in Section 4100 of the Civil Code,
approved by a city, county, or city and county and consists of residential units or
unimproved residential lots and either a project to substantially rehabilitate and
convert an existing commercial building to residential use or the substantial rehabilitation of an existing multifamily dwelling, as defined in subdivision (d) of
Section 65863.4, where the result of the rehabilitation would be a net increase in
available residential units. For the purpose of calculating a density bonus, the residential units shall be on contiguous sites that are the subject of one
development application, but do not have to be based upon individual subdivision
maps or parcels. The density bonus shall be permitted in geographic areas of the
housing development other than the areas where the units for the lower income
households are located. (j) (1) The granting of a concession or incentive shall not require or be interpreted,
in and of itself, to require a general plan amendment, local coastal plan
amendment, zoning change, study, or other discretionary approval. For purposes of this subdivision, “study” does not include reasonable documentation to establish
eligibility for the concession or incentive or to demonstrate that the incentive or
concession meets the definition set forth in subdivision (k). This provision is
declaratory of existing law.
(2) Except as provided in subdivisions (d) and (e), the granting of a density bonus
shall not require or be interpreted to require the waiver of a local ordinance or
provisions of a local ordinance unrelated to development standards.
(k) For the purposes of this chapter, concession or incentive means any of the following:
(1) A reduction in site development standards or a modification of zoning code
requirements or architectural design requirements that exceed the minimum building standards approved by the California Building Standards Commission as
provided in Part 2.5 (commencing with Section 18901) of Division 13 of the Health
and Safety Code, including, but not limited to, a reduction in setback and square
footage requirements and in the ratio of vehicular parking spaces that would
otherwise be required that results in identifiable and actual cost reductions, to
provide for affordable housing costs, as defined in Section 50052.5 of the Health
and Safety Code, or for rents for the targeted units to be set as specified in
subdivision (c). (2) Approval of mixed-use zoning in conjunction with the housing project if
commercial, office, industrial, or other land uses will reduce the cost of the housing
development and if the commercial, office, industrial, or other land uses are compatible with the housing project and the existing or planned development in the
area where the proposed housing project will be located.
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(3) Other regulatory incentives or concessions proposed by the developer or the city, county, or city and county that result in identifiable and actual cost reductions
to provide for affordable housing costs, as defined in Section 50052.5 of the Health
and Safety Code, or for rents for the targeted units to be set as specified in subdivision (c).
(l) Subdivision (k) does not limit or require the provision of direct financial
incentives for the housing development, including the provision of publicly owned
land, by the city, county, or city and county, or the waiver of fees or dedication
requirements.
(m) This section does not supersede or in any way alter or lessen the effect or
application of the California Coastal Act of 1976 (Division 20 (commencing with
Section 30000) of the Public Resources Code). Any density bonus, concessions, incentives, waivers or reductions of development standards, and parking ratios to
which the applicant is entitled under this section shall be permitted in a manner
that is consistent with this section and Division 20 (commencing with Section 30000) of the Public Resources Code.
(n) If permitted by local ordinance, nothing in this section shall be construed to
prohibit a city, county, or city and county from granting a density bonus greater
than what is described in this section for a development that meets the
requirements of this section or from granting a proportionately lower density bonus than what is required by this section for developments that do not meet the
requirements of this section.
(o) For purposes of this section, the following definitions shall apply: (1) “Development standard” includes a site or construction condition, including, but
not limited to, a height limitation, a setback requirement, a floor area ratio, an
onsite open-space requirement, or a parking ratio that applies to a residential
development pursuant to any ordinance, general plan element, specific plan,
charter, or other local condition, law, policy, resolution, or regulation.
(2) “Maximum allowable residential density” means the density allowed under the
zoning ordinance and land use element of the general plan, or, if a range of density
is permitted, means the maximum allowable density for the specific zoning range and land use element of the general plan applicable to the project. If the density
allowed under the zoning ordinance is inconsistent with the density allowed under
the land use element of the general plan, the general plan density shall prevail. (p) (1) Except as provided in paragraphs (2), (3), and (4), upon the request of the
developer, a city, county, or city and county shall not require a vehicular parking
ratio, inclusive of handicapped and guest parking, of a development meeting the
criteria of subdivisions (b) and (c), that exceeds the following ratios:
(A) Zero to one bedroom: one onsite parking space.
(B) Two to three bedrooms: two onsite parking spaces.
(C) Four and more bedrooms: two and one-half parking spaces.
(2) Notwithstanding paragraph (1), if a development includes the maximum percentage of low-income or very low income units provided for in paragraphs (1)
and (2) of subdivision (f) and is located within one-half mile of a major transit stop,
as defined in subdivision (b) of Section 21155 of the Public Resources Code, and there is unobstructed access to the major transit stop from the development, then,
upon the request of the developer, a city, county, or city and county shall not impose a vehicular parking ratio, inclusive of handicapped and guest parking, that
Sept. 1, 2020 Item #5 Page 97 of 194
exceeds 0.5 spaces per bedroom. For purposes of this subdivision, a development shall have unobstructed access to a major transit stop if a resident is able to access
the major transit stop without encountering natural or constructed impediments.
(3) Notwithstanding paragraph (1), if a development consists solely of rental units, exclusive of a manager’s unit or units, with an affordable housing cost to lower
income families, as provided in Section 50052.5 of the Health and Safety Code,
then, upon the request of the developer, a city, county, or city and county shall not
impose a vehicular parking ratio, inclusive of handicapped and guest parking, that
exceeds the following ratios:
(A) If the development is located within one-half mile of a major transit stop, as
defined in subdivision (b) of Section 21155 of the Public Resources Code, and there
is unobstructed access to the major transit stop from the development, the ratio shall not exceed 0.5 spaces per unit.
(B) If the development is a for-rent housing development for individuals who are 62
years of age or older that complies with Sections 51.2 and 51.3 of the Civil Code, the ratio shall not exceed 0.5 spaces per unit. The development shall have either
paratransit service or unobstructed access, within one-half mile, to fixed bus route
service that operates at least eight times per day.
(4) Notwithstanding paragraphs (1) and (8), if a development consists solely of
rental units, exclusive of a manager’s unit or units, with an affordable housing cost to lower income families, as provided in Section 50052.5 of the Health and Safety
Code, and the development is either a special needs housing development, as
defined in Section 51312 of the Health and Safety Code, or a supportive housing development, as defined in Section 50675.14 of the Health and Safety Code, then,
upon the request of the developer, a city, county, or city and county shall not
impose any minimum vehicular parking requirement. A development that is a
special needs housing development shall have either paratransit service or
unobstructed access, within one-half mile, to fixed bus route service that operates
at least eight times per day.
(5) If the total number of parking spaces required for a development is other than a
whole number, the number shall be rounded up to the next whole number. For purposes of this subdivision, a development may provide onsite parking through
tandem parking or uncovered parking, but not through on street parking.
(6) This subdivision shall apply to a development that meets the requirements of subdivisions (b) and (c), but only at the request of the applicant. An applicant may
request parking incentives or concessions beyond those provided in this subdivision
pursuant to subdivision (d).
(7) This subdivision does not preclude a city, county, or city and county from
reducing or eliminating a parking requirement for development projects of any type
in any location.
(8) Notwithstanding paragraphs (2) and (3), if a city, county, city and county, or an
independent consultant has conducted an areawide or jurisdiction wide parking study in the last seven years, then the city, county, or city and county may impose
a higher vehicular parking ratio not to exceed the ratio described in paragraph (1),
based upon substantial evidence found in the parking study, that includes, but is not limited to, an analysis of parking availability, differing levels of transit access,
walkability access to transit services, the potential for shared parking, the effect of parking requirements on the cost of market-rate and subsidized developments, and
Sept. 1, 2020 Item #5 Page 98 of 194
the lower rates of car ownership for low-income and very low income individuals, including seniors and special needs individuals. The city, county, or city and county
shall pay the costs of any new study. The city, county, or city and county shall
make findings, based on a parking study completed in conformity with this paragraph, supporting the need for the higher parking ratio.
(9) A request pursuant to this subdivision shall neither reduce nor increase the
number of incentives or concessions to which the applicant is entitled pursuant to
subdivision (d).
(q) Each component of any density calculation, including base density and bonus
density, resulting in fractional units shall be separately rounded up to the next
whole number. The Legislature finds and declares that this provision is declaratory
of existing law. (r) This chapter shall be interpreted liberally in favor of producing the maximum
number of total housing units.
(Amended (as amended by Stats. 2018, Ch. 937) by Stats. 2019, Ch. 666, Sec. 1. (AB 1763) Effective January 1, 2020.)
65915.5.
(a) When an applicant for approval to convert apartments to a condominium project
agrees to provide at least 33 percent of the total units of the proposed
condominium project to persons and families of low or moderate income as defined in Section 50093 of the Health and Safety Code, or 15 percent of the total units of
the proposed condominium project to lower income households as defined in
Section 50079.5 of the Health and Safety Code, and agrees to pay for the reasonably necessary administrative costs incurred by a city, county, or city and
county pursuant to this section, the city, county, or city and county shall either (1) grant a density bonus or (2) provide other incentives of equivalent financial value.
A city, county, or city and county may place such reasonable conditions on the
granting of a density bonus or other incentives of equivalent financial value as it finds appropriate, including, but not limited to, conditions which assure continued
affordability of units to subsequent purchasers who are persons and families of low
and moderate income or lower income households.
(b) For purposes of this section, “density bonus” means an increase in units of 25
percent over the number of apartments, to be provided within the existing structure
or structures proposed for conversion.
(c) For purposes of this section, “other incentives of equivalent financial value” shall
not be construed to require a city, county, or city and county to provide cash transfer payments or other monetary compensation but may include the reduction
or waiver of requirements which the city, county, or city and county might
otherwise apply as conditions of conversion approval. (d) An applicant for approval to convert apartments to a condominium project may
submit to a city, county, or city and county a preliminary proposal pursuant to this
section prior to the submittal of any formal requests for subdivision map approvals.
The city, county, or city and county shall, within 90 days of receipt of a written
proposal, notify the applicant in writing of the manner in which it will comply with this section. The city, county, or city and county shall establish procedures for
Sept. 1, 2020 Item #5 Page 99 of 194
carrying out this section, which shall include legislative body approval of the means of compliance with this section.
(e) Nothing in this section shall be construed to require a city, county, or city and
county to approve a proposal to convert apartments to condominiums. (f) An applicant shall be ineligible for a density bonus or other incentives under this
section if the apartments proposed for conversion constitute a housing development
for which a density bonus or other incentives were provided under Section 65915.
(g) An applicant shall be ineligible for a density bonus or any other incentives or
concessions under this section if the condominium project is proposed on any
property that includes a parcel or parcels on which rental dwelling units are or, if
the dwelling units have been vacated or demolished in the five-year period
preceding the application, have been subject to a recorded covenant, ordinance, or law that restricts rents to levels affordable to persons and families of lower or very
low income; subject to any other form of rent or price control through a public
entity’s valid exercise of its police power; or occupied by lower or very low income households, unless the proposed condominium project replaces those units, as
defined in subparagraph (B) of paragraph (3) of subdivision (c) of Section 65915,
and either of the following applies:
(1) The proposed condominium project, inclusive of the units replaced pursuant to
subparagraph (B) of paragraph (3) of subdivision (c) of Section 65915, contains affordable units at the percentages set forth in subdivision (a).
(2) Each unit in the development, exclusive of a manager’s unit or units, is
affordable to, and occupied by, either a lower or very low income household. (h) Subdivision (g) does not apply to an applicant seeking a density bonus for a
proposed housing development if their application was submitted to, or processed
by, a city, county, or city and county before January 1, 2015. (Amended by Stats. 2014, Ch. 682, Sec. 2. (AB 2222) Effective January 1, 2015.)
65915.7.
(a) When an applicant for approval of a commercial development has entered into an agreement for partnered housing described in subdivision (c) to contribute
affordable housing through a joint project or two separate projects encompassing
affordable housing, the city, county, or city and county shall grant to the
commercial developer a development bonus as prescribed in subdivision
(b).Housing shall be constructed on the site of the commercial development or on a
site that is all of the following:
(1) Within the boundaries of the local government.
(2) In close proximity to public amenities including schools and employment centers.
(3) Located within one-half mile of a major transit stop, as defined in subdivision
(b) of Section 21155 of the Public Resources Code. (b) The development bonus granted to the commercial developer shall mean
incentives, mutually agreed upon by the developer and the jurisdiction, that may
include, but are not limited to, any of the following:
(1) Up to a 20-percent increase in maximum allowable intensity in the General
Plan.
Sept. 1, 2020 Item #5 Page 100 of 194
(2) Up to a 20-percent increase in maximum allowable floor area ratio. (3) Up to a 20-percent increase in maximum height requirements.
(4) Up to a 20-percent reduction in minimum parking requirements.
(5) Use of a limited-use/limited-application elevator for upper floor accessibility. (6) An exception to a zoning ordinance or other land use regulation.
(c) For the purposes of this section, the agreement for partnered housing shall be
between the commercial developer and the housing developer, shall identify how
the commercial developer will contribute affordable housing, and shall be approved
by the city, county, or city and county.
(d) For the purposes of this section, affordable housing may be contributed by the
commercial developer in one of the following manners:
(1) The commercial developer may directly build the units. (2) The commercial developer may donate a portion of the site or property
elsewhere to the affordable housing developer for use as a site for affordable
housing. (3) The commercial developer may make a cash payment to the affordable housing
developer that shall be used towards the costs of constructing the affordable
housing project.
(e) For the purposes of this section, subparagraph (A) of paragraph (3) of
subdivision (c) of Section 65915 shall apply. (f) Nothing in this section shall preclude any additional allowances or incentives
offered to developers by local governments pursuant to law or regulation.
(g) If the developer of the affordable units does not commence with construction of those units in accordance with timelines ascribed by the agreement described in
subdivision (c), the local government may withhold certificates of occupancy for the
commercial development under construction until the developer has completed
construction of the affordable units.
(h) In order to qualify for a development bonus under this section, a commercial
developer shall partner with a housing developer that provides at least 30 percent
of the total units for low-income households or at least 15 percent of the total units
for very low-income households. (i) Nothing in this section shall preclude an affordable housing developer from
seeking a density bonus, concessions or incentives, waivers or reductions of
development standards, or parking ratios under Section 65915. (j) A development bonus pursuant to this section shall not include a reduction or
waiver of the requirements within an ordinance that requires the payment of a fee
by a commercial developer for the promotion or provision of affordable housing.
(k) A city or county shall submit to the Department of Housing and Community
Development, as part of the annual report required by Section 65400, information
describing a commercial development bonus approved pursuant to this section,
including the terms of the agreements between the commercial developer and the
affordable housing developer, and the developers and the local jurisdiction, and the number of affordable units constructed as part of the agreements.
(l) For purposes of this section, “partner” shall mean formation of a partnership,
limited liability company, corporation, or other entity recognized by the state in which the commercial development applicant and the affordable housing developer
are each partners, members, shareholders or other participants, or a contract or agreement between a commercial development applicant and affordable housing
Sept. 1, 2020 Item #5 Page 101 of 194
developer for the development of both the commercial and the affordable housing properties.
(m) This section shall remain in effect only until January 1, 2022, and as of that
date is repealed. (Added by Stats. 2016, Ch. 747, Sec. 2. (AB 1934) Effective January 1, 2017. Repealed as of January 1, 2022, by its
own provisions.)
65916.
Where there is a direct financial contribution to a housing development pursuant to
Section 65915 through participation in cost of infrastructure, write-down of land costs, or subsidizing the cost of construction, the city, county, or city and county
shall assure continued availability for low- and moderate-income units for 30 years.
When appropriate, the agreement provided for in Section 65915 shall specify the mechanisms and procedures necessary to carry out this section. (Added by Stats. 1979, Ch. 1207.)
65917. In enacting this chapter, it is the intent of the Legislature that the density bonus or
other incentives offered by the city, county, or city and county pursuant to this
chapter shall contribute significantly to the economic feasibility of lower income housing in proposed housing developments. In the absence of an agreement by a
developer in accordance with Section 65915, a locality shall not offer a density
bonus or any other incentive that would undermine the intent of this chapter. (Amended by Stats. 2001, Ch. 115, Sec. 14. Effective January 1, 2002.)
65917.2.
(a) As used in this section, the following terms shall have the following meanings: (1) “Eligible housing development” means a development that satisfies all of the
following criteria:
(A) The development is a multifamily housing development that contains five or
more residential units, exclusive of any other floor area ratio bonus or incentive or
concession awarded pursuant to this chapter. (B) The development is located within one of the following:
(i) An urban infill site that is within a transit priority area.
(ii) One-half mile of a major transit stop. (C) The site of the development is zoned to allow residential use or mixed-use with
a minimum planned density of at least 20 dwelling units per acre and does not
include any land zoned for low density residential use or for exclusive nonresidential
use.
(D) The applicant and the development satisfy the replacement requirements
specified in subdivision (c) of Section 65915.
(E) The development includes at least 20 percent of the units, excluding any
additional units allowed under a floor area ratio bonus or other incentives or
Sept. 1, 2020 Item #5 Page 102 of 194
concessions provided pursuant to this chapter, with an affordable housing cost or affordable rent to, and occupied by, persons with a household income equal to or
less than 50 percent of the area median income, as determined pursuant to Section
50093 of the Health and Safety Code, and subject to an affordability restriction for a minimum of 55 years.
(F) The development complies with the height requirements applicable to the
underlying zone. A development shall not be eligible to use a floor area ratio bonus
or other incentives or concessions provided pursuant to this chapter to relieve the
development from a maximum height limitation.
(2) “Floor area ratio” means the ratio of gross building area of the eligible housing
development, excluding structured parking areas, proposed for the project divided
by the net lot area. For purposes of this paragraph, “gross building area” means the sum of all finished areas of all floors of a building included within the outside faces
of its exterior walls.
(3) “Floor area ratio bonus” means an allowance for an eligible housing development to utilize a floor area ratio over the otherwise maximum allowable
density permitted under the applicable zoning ordinance and land use elements of
the general plan of a city or county, calculated pursuant to paragraph (2) of
subdivision (b).
(4) “Major transit stop” has the same meaning as defined in Section 21155 of the Public Resources Code.
(5) “Transit priority area” has the same meaning as defined in Section 21099 of the
Public Resources Code. (b) (1) A city council, including a charter city council or the board of supervisors of
a city and county, or county board of supervisors may establish a procedure by
ordinance to grant a developer of an eligible housing development, upon the
request of the developer, a floor area ratio bonus, calculated as provided in
paragraph (2), in lieu of a density bonus awarded on the basis of dwelling units per
acre.
(2) In calculating the floor area ratio bonus pursuant to this section, the allowable
gross residential floor area in square feet shall be the product of all of the following amounts:
(A) The allowable residential base density in dwelling units per acre.
(B) The site area in square feet, divided by 43,560. (C) 2,250.
(c) The city council or county board of supervisors shall not impose any parking
requirement on an eligible housing development in excess of 0.1 parking spaces per
unit that is affordable to persons and families with a household income equal to or
less than 120 percent of the area median income and 0.5 parking spaces per unit
that is offered at market rate.
(d) A city or county that adopts a floor area ratio bonus ordinance pursuant to this
section shall allow an applicant seeking to develop an eligible residential development to calculate impact fees based on square feet, instead of on a per unit
basis.
(e) In the case of an eligible housing development that is zoned for mixed-use purposes, any floor area ratio requirement under a zoning ordinance or land use
element of the general plan of the city or county applicable to the nonresidential
Sept. 1, 2020 Item #5 Page 103 of 194
portion of the eligible housing development shall continue to apply notwithstanding the award of a floor area ratio bonus in accordance with this section.
(f) An applicant for a floor area ratio bonus pursuant to this section may also
submit to the city, county, or city and county a proposal for specific incentives or concessions pursuant to subdivision (d) of Section 65915.
(g) (1) This section shall not be interpreted to do either of the following:
(A) Supersede or preempt any other section within this chapter.
(B) Prohibit a city, county, or city and county from providing a floor area ratio
bonus under terms that are different from those set forth in this section.
(2) The adoption of an ordinance pursuant to this section shall not be interpreted to
relieve a city, county, or city and county from complying with Section 65915.
(Added by Stats. 2018, Ch. 915, Sec. 1. (AB 2372) Effective January 1, 2019.)
65917.5. (a) As used in this section, the following terms shall have the following meanings:
(1) “Child care facility” means a facility installed, operated, and maintained under
this section for the nonresidential care of children as defined under applicable state
licensing requirements for the facility.
(2) “Density bonus” means a floor area ratio bonus over the otherwise maximum allowable density permitted under the applicable zoning ordinance and land use
elements of the general plan of a city, including a charter city, city and county, or
county of: (A) A maximum of five square feet of floor area for each one square foot of floor
area contained in the child care facility for existing structures.
(B) A maximum of 10 square feet of floor area for each one square foot of floor
area contained in the child care facility for new structures.
For purposes of calculating the density bonus under this section, both indoor and outdoor square footage requirements for the child care facility as set forth in
applicable state child care licensing requirements shall be included in the floor area
of the child care facility. (3) “Developer” means the owner or other person, including a lessee, having the
right under the applicable zoning ordinance of a city council, including a charter city
council, city and county board of supervisors, or county board of supervisors to
make an application for development approvals for the development or
redevelopment of a commercial or industrial project.
(4) “Floor area” means as to a commercial or industrial project, the floor area as
calculated under the applicable zoning ordinance of a city council, including a
charter city council, city and county board of supervisors, or county board of supervisors and as to a child care facility, the total area contained within the
exterior walls of the facility and all outdoor areas devoted to the use of the facility
in accordance with applicable state child care licensing requirements. (b) A city council, including a charter city council, city and county board of
supervisors, or county board of supervisors may establish a procedure by ordinance
to grant a developer of a commercial or industrial project, containing at least
50,000 square feet of floor area, a density bonus when that developer has set aside
at least 2,000 square feet of floor area and 3,000 outdoor square feet to be used
Sept. 1, 2020 Item #5 Page 104 of 194
for a child care facility. The granting of a bonus shall not preclude a city council, including a charter city council, city and county board of supervisors, or county
board of supervisors from imposing necessary conditions on the project or on the
additional square footage. Projects constructed under this section shall conform to height, setback, lot coverage, architectural review, site plan review, fees, charges,
and other health, safety, and zoning requirements generally applicable to
construction in the zone in which the property is located. A consortium with more
than one developer may be permitted to achieve the threshold amount for the
available density bonus with each developer’s density bonus equal to the
percentage participation of the developer. This facility may be located on the
project site or may be located offsite as agreed upon by the developer and local
agency. If the child care facility is not located on the site of the project, the local agency shall determine whether the location of the child care facility is appropriate
and whether it conforms with the intent of this section. The child care facility shall
be of a size to comply with all state licensing requirements in order to accommodate at least 40 children.
(c) The developer may operate the child care facility itself or may contract with a
licensed child care provider to operate the facility. In all cases, the developer shall
show ongoing coordination with a local child care resource and referral network or
local governmental child care coordinator in order to qualify for the density bonus. (d) If the developer uses space allocated for child care facility purposes, in
accordance with subdivision (b), for purposes other than for a child care facility, an
assessment based on the square footage of the project may be levied and collected by the city council, including a charter city council, city and county board of
supervisors, or county board of supervisors. The assessment shall be consistent
with the market value of the space. If the developer fails to have the space
allocated for the child care facility within three years, from the date upon which the
first temporary certificate of occupancy is granted, an assessment based on the
square footage of the project may be levied and collected by the city council,
including a charter city council, city and county board of supervisors, or county
board of supervisors in accordance with procedures to be developed by the legislative body of the city council, including a charter city council, city and county
board of supervisors, or county board of supervisors. The assessment shall be
consistent with the market value of the space. A penalty levied against a consortium of developers shall be charged to each developer in an amount equal to
the developer’s percentage square feet participation. Funds collected pursuant to
this subdivision shall be deposited by the city council, including a charter city
council, city and county board of supervisors, or county board of supervisors into a
special account to be used for child care services or child care facilities.
(e) Once the child care facility has been established, prior to the closure, change in
use, or reduction in the physical size of, the facility, the city, city council, including
a charter city council, city and county board of supervisors, or county board of supervisors shall be required to make a finding that the need for child care is no
longer present, or is not present to the same degree as it was at the time the
facility was established. (f) The requirements of Chapter 5 (commencing with Section 66000) and of the
amendments made to Sections 53077, 54997, and 54998 by Chapter 1002 of the Statutes of 1987 shall not apply to actions taken in accordance with this section.
Sept. 1, 2020 Item #5 Page 105 of 194
(g) This section shall not apply to a voter-approved ordinance adopted by referendum or initiative. (Amended by Stats. 2008, Ch. 179, Sec. 112. Effective January 1, 2009.)
65918.
The provisions of this chapter shall apply to charter cities.
(Added by Stats. 1979, Ch. 1207.) Web link:
https://leginfo.legislature.ca.gov/faces/codes_displayText.xhtml?lawCode=GOV&division=1.&ti
tle=7.&part=&chapter=4.3.&article=
Sept. 1, 2020 Item #5 Page 106 of 194
This Information Bulletin outlines the development and
processing requirements to receive the benefits provided for
under the California Density Bonus Law.
BACKGROUND
State Density Bonus Law (Gov. Code §65915 - 65918) allows a
developer to increase density on a property above the
maximum set under a city’s local land use plan (Carlsbad
General Plan). In addition, qualifying applicants can also
receive reductions in required development standards such as
setbacks, height limits, and parking requirements. In exchange
for the increased density, a certain number of the new
dwelling units must be reserved for very low, low, or
moderate-income households, seniors or the other eligible
projects listed below.
PROJECT ELIGIBILITY
Any housing development that proposes five or more units
and incorporates at least one of the requirements below is
eligible for a density bonus.
•5% units restricted to “Very Low Income”
•10% units restricted to “Low Income” or “Moderate
Income”
•10% units restricted for transitional foster youth,
disabled veterans, or homeless
•20% units for “Low Income” student housing
•A senior housing project
•An age-restricted mobile home park
•Projects which include a child care facility
Units must be restricted to their level of affordability for at
least 55 years by recorded document. Eligibility is established
by state law. A city may not enact or impose local laws that
conflict with State law or prohibit what the legislature intends
to authorize.
HOW IS DENSITY BONUS CALCULATED?
The number of additional units allowed under this program is
set on a sliding scale, based on two factors:
•The percentage of units in the project that will be set
aside as affordable; and,
•The household income category of those affordable
units (very low, low, or moderate household income).
State law requires that all density calculations resulting in
ANY fractional units shall be rounded up to the next whole
number. This applies to both base density and density bonus
calculations.
Notwithstanding the above, State law requires that the
percentage of affordable units on the site must exceed the
percentage established in the sliding scale. The city interprets
this requirement to mean that the fractional percentage of
units being reserved as affordable must be rounded down to
the nearest whole number.
Also, while the City of Carlsbad utilizes a “mid-range” density
calculation for determining the allowable number of units on
a property, state law requires that density bonus be
calculated based upon the maximum density allowed under
the zoning ordinance.
THEORETICAL EXAMPLE
A property is 1.003 net acres in size, with a zoning designation
of R-15 (15 dwelling units per acre). This results in a maximum
base density of 15.05 units for this site (1.003 acres multiplied
by 15 units per acre), which rounds up to 16 units.
The applicant proposes that two of the units will be reserved
for low-income households. This results in 12.5% of the 16
units that will be reserved for affordable housing, which
rounds down to 12%.
Based on the sliding scale found in the attached Density
Bonus Table, with 12% of the units reserved as affordable, the
project’s base density can increase by 23%, for a total of 19.68
units, which rounds up to 20 total units.
WHAT ARE CONCESSIONS/INCENTIVES?
In many cases, a development project must be modified
and/or reduced to comply with established objective design
standards and other regulations such as limits/requirements
on building height, setback, parking, and on-site open space requirements.
Concessions and incentives, as defined under State law, allow
a developer to deviate from those design standards and/or
regulations when such regulations potentially make the
project economically infeasible for the developer to build.
Documents Referenced
State Density Bonus Law (§65915 - 65918)
Carlsbad Municipal Code, Density Bonus Ordinance (§21.86)
Density Bonus Application Checklist
Density Bonus Calculation Chart
ATTACHMENT 3
Sept. 1, 2020 Item #5 Page 107 of 194
The number of concessions/incentives that can be requested
by a developer varies by the amount and type of reserved
affordable units being proposed, as reflected in the chart
below.
Percentages between these ranges are rounded down. For
example, the sample project that reserved 12% of the units
for very low income receives two concessions/incentives.
Income
Category
% of
Reserved Units
Very Low 5% 10% 15% Up to 80%
Low 10% 20% 30% Up to 80%
Moderate 10% 20% 30% Up to 20%
Senior n/a n/a 100% n/a
Max. # of Incentives 1 2 3 4*
*To Qualify for 4 incentives, a project must reserve at least 80% of the units
for lower income households (Very Low, Low, or combination thereof). The remaining 20% may be reserved for Moderate Income Households.
HOW DO YOU DETERMINE ECONOMIC INFEASIBILITY?
As part of the request for a concession/incentive, the
applicant must provide evidence that the design
standard/regulation causes the project to become too
expensive to build. This can be accomplished through a
financial pro-forma or other similar study or analysis.
The study must demonstrate that the requested
concession/incentive results in identifiable, financially
sufficient, and actual cost reductions that contribute
significantly to the economic feasibility of the reserved
affordable units.
WHAT ARE WAIVERS?
Waivers are yet another form of assistance under State law,
separate from concessions and incentives. A waiver is a
reduction in development standards and other regulations
when those requirements potentially make the construction
of the project physically infeasible, if not approved.
Unlike concessions and incentives, there is no limit in the
number of waivers an applicant can request. Furthermore,
while the developer must justify the need for a waiver, pro-
forma (or other similar analysis) is not required.
CAN THE CITY DENY A CONCESSION/INCENTIVE OR
WAIVER?
Yes. Nothing in State law requires a local government to grant
an incentive or waiver that will potentially result in a specific,
adverse impact upon public health, safety or environment.
Issues to be aware of when evaluating potential development
locations include the following (please note: not an
exhaustive list):
• A proposed density bonus project that would be located
within an airport compatibility zone found to be
inconsistent with the compatibility criteria
• A proposed density bonus project that would be located within a FEMA floodway
• A proposed density bonus project that would be located at a Hazardous Waste Site, pursuant to Section 65962.5
of the Government Code
• A proposed density bonus project that would be located
within a High Fire Severity Overlay Zone
Additionally, State Density Bonus Law provides that it shall
not be construed to supersede or in any way alter or lessen
the effect or application of the California Coastal Act of 1976, and further provides that the granting of a density bonus or
an incentive shall not be interpreted, in and of itself, to
require a local coastal plan amendment.
The burden of proof is on the jurisdiction to determine if
there is no feasible method to satisfactory mitigate or avoid
the specific adverse impact. Under the law, the court shall
award the plaintiff attorney's fees and costs should the City
not adequately justify the denial of a concession/incentive or
waiver.
YOUR OPTIONS FOR SERVICE
Formal application(s) for a density bonus project will be
required to submit information requested under the Density
Bonus Supplemental Application Checklist, as required under
CMC§21.86.040. To improve process review, an appointment
is required to walk through project submittal and processing
requirements.
NOTE: Please refer to State Density Bonus Law Government
Code (§65915 et al) for additional details with respect to
conformance/associated regulations.
◊ ◊ ◊ ◊
Sept. 1, 2020 Item #5 Page 108 of 194
The information listed in this checklist is required to be completed for all residential development applications being
processed under Government Code §65915 – 65918 (State Density Bonus Law). Please prepare the required
materials/information described in this checklist and submit in one document entitled “Supplemental Application –
Density Bonus Program”. Refer to Information Bulletin P-## for additional information.
❏ PROJECT LOCATION
Include the street address and APN(s) of the subject property.
❏
PROPERTY DESCRIPTION
Include information about the property and immediate area such as general location, prior uses on-site,
site characteristics (i.e., slopes, habitat, drainage), neighborhood setting, General Plan designation,
zoning designation, and maximum density allowed by zoning.
❏
PROJECT DESCRIPTION
Describe the proposed project. Please make sure to include the following information.
• Total number of lots/units proposed (maximum density and density bonus units)
• Type of housing proposed and any anticipated construction phasing
• Number, location and income level of the proposed affordable units
• Project access, infrastructure, and any proposed amenities/open space
❏
DENSITY CALCULATIONS
Indicate the number of lots proposed and how many are proposed to be designated as affordable. Include
the following information:
• Show all density calculations
• Income levels of the affordable units
• Number of ‘Concessions/Incentives’ requested
• Number of ‘Waivers’ requested
❏
CONCESSION(S)/INCENTIVE(S), if requested1
Please provide evidence demonstrating that the requested concession/incentive results in identifiable,
financially sufficient, and actual cost reductions that contribute significantly to the economic feasibility of
the reserved affordable units. Please include the following in the response.
• Provide specific information on and discussion of each concession/incentive proposed
• Include discussion of why the findings to deny grant of the proposed concession/incentive are
not supportable for the proposed project:
o Why is the concession/incentive required to provide for affordable housing costs, or for
rents to targeted units to be set as provided under State law?
o Would the grant of the concession/incentive have a specific adverse impact upon public
health and safety or the physical environment or listed historical property? If yes, are there
Community Development
Planning Division
1635 Faraday Avenue
(760) 602-4610
www.carlsbadca.gov
DENSITY BONUS
SUPPLEMENTAL CHECKLIST
P-XX
Sept. 1, 2020 Item #5 Page 109 of 194
feasible methods to mitigate or avoid such impacts without rendering the development
unaffordable?
❏
WAIVERS(S), if requested2
Please provide evidence demonstrating that the requested Waiver from a required development
standard is necessary in order for development to be physically feasible. Please include the following in
the response.
• Provide specific information on and discussion of each concession/incentive proposed
• Provide specific information on and discussion of each waiver/reduction proposed. Include
discussion of why the findings to deny grant of the proposed waivers/reductions are not
supportable for the proposed project:
o How would application of the development standard proposed to be waived/reduced
physically preclude the construction of the development at the density proposed or with
proposed concessions/incentives?
o Would the waiver or reduction have a specific adverse impact upon public health and safety
or the physical environment or listed historical property? If yes, are there feasible methods
to mitigate or avoid such impacts without rendering the development unaffordable?
1 Cities are required to grant concessions or incentives (referred to as concessions) to a developer that seeks and agrees to include affordable units in their development. One to three concessions are available for each development depending on the percentage of affordable housing that will be included within the development. A concession is one of three things (Section 65915(k)(1, 2 &3)):
• A reduction in site development standards or a modification of zoning code requirements or architectural design requirements that exceed minimum building standards that result in identifiable, financially sufficient and actual costs reductions. Development Standard” includes a site or construction
condition, including, but not limited to, a height limitation, a setback requirement, a floor area ratio, an onsite open-space requirement, or a parking ratio
that applies to a residential development pursuant to any ordinance, general plan element, specific plan, charter, or other local condition, law, policy, resolution, or regulation. (Section 65915(o)(1)).
• Approval of mixed use zoning in conjunction with the housing project if commercial, office, industrial, or other land uses will reduce the cost of the housing development and if such uses are compatible with the housing project and the existing or planned development in the area.
• Other regulatory concessions proposed by the developer or city that result in identifiable, financially sufficient and actual cost reductions.
The City shall grant the concession unless one or more of the following written findings can be made (Section 65915(d)(1)(A, B & C)):
• The concession is not required in order to provide for affordable housing costs, or for rents for the targeted units.
• The concession would have a “specific adverse impact upon public health and safety or the physical environment or on any real property that is listed in the California Register of Historical Resources and for which 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.”
• The concession would be contrary to state and federal law.
2 In addition to concessions, an applicant may submit a proposal for a waiver or reduction (referred to as waiver) of development standards. (Section 65915(e)(1)). In no case may a city apply any development standard that will have the effect of physically precluding the construction of a development at the density or concessions permitted. The City shall grant the waiver unless one or more of the following written findings can be made (Section 65915(e)(1)):
• The waiver will have a specific adverse impact upon health, safety, or the physical environment and for which there is no feasible method to satisfactorily mitigate or avoid the specific adverse impact.
• The waiver will have a specific adverse impact on any real property listed in California Register of Historical Resources.
• The waiver would be contrary to state and federal law.
Sept. 1, 2020 Item #5 Page 110 of 194
DENSITY BONUS TABLE
% of Total Units
Reserved
Affordable
Very Low Income
Density Bonus (1)
Low Income
Density Bonus (2)
Moderate
Income Density
Bonus (3)
Land Donation
Density Bonus (4)
Senior Density
Bonus (5)
5% 20% - - - 20%
6% 22.5% - - - 20%
7% 25% - - - 20%
8% 27.5% - - - 20%
9% 30% - - - 20%
10% 32.5% 20% 5% 15% 20%
11% 35% 21.5% 6% 16% 20%
12% 35% 23% 7% 17% 20%
13% 35% 24.5% 8% 18% 20%
14% 35% 26% 9% 19% 20%
15% 35% 27.5% 10% 20% 20%
16% 35% 29% 11% 21% 20%
17% 35% 30.5% 12% 22% 20%
18% 35% 32% 13% 23% 20%
19% 35% 33.5% 14% 24% 20%
20% 35% 35% 15% 25% 20%
21% 35% 35% 16% 26% 20%
22% 35% 35% 17% 27% 20%
23% 35% 35% 18% 28% 20%
24% 35% 35% 19% 29% 20%
25% 35% 35% 20% 30% 20%
26% 35% 35% 21% 31% 20%
27% 35% 35% 22% 32% 20%
28% 35% 35% 23% 33% 20%
29% 35% 35% 24% 34% 20%
30% 35% 35% 25% 35% 20%
31% 35% 35% 26% 35% 20%
31% 35% 35% 27% 35% 20%
33% 35% 35% 28% 35% 20%
34% 35% 35% 29% 35% 20%
35% 35% 35% 30% 35% 20%
36% 35% 35% 31% 35% 20%
37% 35% 35% 32% 35% 20%
38% 35% 35% 33% 35% 20%
39% 35% 35% 34% 35% 20%
40% 35% 35% 35% 35% 20%
(1) Government Code §65915(f)(2)
(2) Government Code §65915(f)(1)
(3) Government Code §65915(f)(4)
(4) Government Code §65915(g)(1)
(5) Government Code §65915(f)(3); No affordable units are required for senior housing units to receive a density bonus.
Sept. 1, 2020 Item #5 Page 111 of 194
June 4, 2020
ALUC Meeting
ITEM 2 -
COMMUNICATION
RECEIVED FROM
THE PUBLIC
Sept. 1, 2020 Item #5 Page 112 of 194
1
June 1, 2020
Citizens for a Friendly Airport
7040 Avenida Encinitas, Suite 104-467
Carlsbad, CA 92011
San Diego Regional Airport Authority Mailing Address
Airport Land Use Commission SDCRAA
SDCRAA Administration Building P.O. Box 82776
3225 No. Harbor Drive San Diego, CA 92138-2776
San Diego, California 92101
c/o and Requested Distribution to Addressees Prior to Thursday June 4, 2020 meeting by Tony R.
Russell, CRM, MMC. [clerk@san.org and SDCRAA General Phone: 619 400-2400]
Director | Board Services/Authority Clerk
Members: C. April Boiling (Chairperson), Catherine Blakespear, Greg Cox, Mark Kersey, Robert T.
Lloyd, Paul McNamara, Paul Robinson, Johanna S. Schiavoni, Mark B. West and Ex-Officio Board
Members: Gustavo Dallarda, Col. Charles B. Dockery, Gayle Miller AND President/CEO Kimberly J.
Becker
SDRAA Legal Counsel: Amy Gonzalez. [Amy.Gonzalez@san.org]
VIA: Attn: Ms. Diane Casey (Assistant to CEO Kimberly J. Becker [DCasey@san.org])
State of California City of Carlsbad
Department of Transportation 1200 Carlsbad Village Dr.
Division of Aeronautics Carlsbad, CA 92008
P.O. Box 942873 FOR: City Council, City Manager, City Attorney
Sacramento, CA 94273-0001 c/o Carlsbad City Clerk
[General Info Phone: 916 654-2852] Clerk@carlsbadca.gov
Attn: Amy Choi [CT Org Chart hard to read]
c/o Cal Trans Director [See May 2020 CT org chart]
Sept. 1, 2020 Item #5 Page 113 of 194
2
Re: (1) Request for Continuance of ALUC Proposed Consistency Determination Scheduled for
June 4, 2020 as ALUC Agenda Item 2 Re: Consistency of Carlsbad Zoning Density with
2010/2011 Palomar Airport Land Use Compatibility Plan; and
(2) Request for ALUC Expedited Processing of an Update to 2010/2011 McClellan-Palomar
Airport Land Use Compatibility Plan as a Result of County 2018 – 2038 Palomar Airport
Master Plan and PUC and State Aeronautics Manual Requirements
Ladies and Gentlemen:
On Friday May 29, 2020, Citizens for a Friendly Airport (C4FA) received SDCRAA ALUC notice of the
ALUC’s intent to act on ALUC Agenda Item 2 on June 4, 2020.
By ALUC Agenda Item 2, Carlsbad requests that the ALUC find that the Carlsbad zoning changes related
to Carlsbad high density development are consistent with the development and operation of McClellan-
Airport, a County of San Diego owned and operated airport. C4FA clearly disagrees with Carlsbad.
The Airport, though within Carlsbad, is surrounded by developable land in the cities of Carlsbad, Vista,
and unincorporated areas of the County of San Diego.
C4FA requests a continuance m until ALUC staff has prepared a report to the ALUC members analyzing
the points below and until ALUC has given the public more time to review this matter.
Alternatively, if the ALUC proceeds with this item, we request that the ALUC deny a finding of
consistency. The ALUC would not have enough data to determine whether the ALUC is complying with
(1) the California Public Utilities Code (PUC) and (2) the State of California Aeronautics Manual, which
State law requires ALUCs to follow, and (3) an UPDATED Palomar Airport LUCP.
Because Covid ALUC hearing restrictions make communicating orally with the ALUC and Carlsbad difficult,
we request that this letter be read into the record at the ALUC June 4, 2020 meeting and all related meetings of
the Carlsbad City Council. Only in this way, can we be assured that (1) our concerns have been recognized by
ALUC members and (2) that members of the public who are able to watch a broadcast of the ALUC meeting
are apprised of the specific C4FA concerns. Because this C4FA letter is from a group of citizens, we request
the ALUC allow more than the ALUC-allotted 3 minutes to read the letter into the record.
The 2010/2011 McClellan-Palomar Airport LUCP is out of date for four reasons.
1. The ALUC Failed to Update the Palomar Airport LUCP by 2016 and Failed to Conform to the
State Aeronautics Manual. As C4FA pointed out in great detail in its September 2018 twenty-
nine page letter to the ALUC, the Palomar Airport 2010/2011 LUCP was out of date long before
County adopted its October, 2018 new Palomar Airport Master Plan (PMP) to convert Palomar
Airport from an FAA rated B-II airport to an FAA D-III airport. For purposes of the
Administrative Record, we incorporate the C4FA September 2018 letter by reference.
According to the California Department of Aeronautics Manual, LUCPs should be updated every
5 years. Palomar Airport was due for an update in 2016 – especially since it appears that the
SDCRAA ALUC 2011 update was made shortly after the ALUC assumed responsibility under
State law from SANDAG. In other words, the newly created Authority and ALUC had little
experience in preparing LUCPs at that time. Consequently, it overlooked various issues as
C4FA pointed out in its 2018 letter.
Sept. 1, 2020 Item #5 Page 114 of 194
3
2. The ALUC Failed to Review the County 2018 Palomar Airport Master Plan (PMP) Prior to the
Time the County Board of Supervisors Acted on its 2020 PMP and Related PMP EIR.
The county and the SDRAA ALUC are denying the public a reasonable opportunity to comment
on the consistency of proposed zoning changes by cities around Palomar Airport with a
CURRENT Palomar Airport LUCP. Just a few facts supporting that conclusion include the
following:
§ The ALUC is not a Neutral Arbiter of Consistency Issues. In 2010, the ALUC’s
“parent,” the full SDCRAA adopted a Regional Strategic Airport Plan (RASP).
The RASP lists many ways in which county airports, including specifically
Palomar Airport, can expand. While we recognize that the SDCRAA is in the
business of promoting airports, the SDCRAA has a PUC statutory duty to act
impartially. Having adopted a RASP promoting airport expansions, the
SDCRAA should not be undertaking ALUC actions that give the public only the
barest notice related to an out-of-date Palomar Airport LUCP.
§ The ALUC Failure to Review the County 2018 PMP Prior to Board of
Supervisor PMP Action Denied County and the Public 1/8 of the Information
that County’s PMP Promised to Provide the Public. When circulated, the
County’s PMP and PMP EIR expressly promised the public and reviewing
public agencies that County would analyze 8 distinct issues.
One specifically listed issue was the impact of the Palomar Airport D-III
conversion and construction of $100,000,000 plus of Palomar Airport runway
extensions and runway relocation improvements on the noise and safety of
surrounding communities.
The PUC expressly delegates to ALUCs the duty to prepare Land Use
Compatibility Plans so that private and public owners near an airport know if
development of their lands will be restricted by noise and safety zones.
Because the ALUC failed to timely act, the County PMP and PMP EIR provide
no specific information as to how County Palomar Airport expansion affects
development of land parcels outside the airport that will be restricted.1
§ We understand that the PUC and/or State Aeronautics Manual require an airport
owner and operator to submit proposed airport changes to the ALUC prior to the
time the owner/operator adopts its plan. That requirement suggests that the Cal
Trans Division of Aeronautics expected airport owners and operators to receive
1 County and Carlsbad often say Palomar Airport improvements will again be reviewed in the future and hence the
2018 County PMP does not by itself impact safety and the environment. That argument fails for two reasons.
First, no one will ever know whether the Supervisors would have adopted the 2018 PMP in the format proposed –
which governs Palomar Airport development for 20 years – if the noise and safety impacts on surrounding
property owners were known. Those impacts could only be known if the ALUC had timely acted to update the
Palomar Airport LUCP. Secondly, the County and Carlsbad argument that the 2028 PMP does not trigger impacts
until Palomar Airport physically expands conflicts with an ongoing County and Carlsbad argument. They say that
the county cannot limit the size and speed of aircraft using Palomar Airport. Since at least 1990 County has been
attracting FAA-rated C and D larger, faster, more fuel-laden airport to Palomar. The Palomar Airport runway does
not meet FAA Design Manual requirements for such aircraft. Hence, the existing ALUC LUCP is out of date.
Sept. 1, 2020 Item #5 Page 115 of 194
4
ALUC input before adopting proposed plans. However, county submitted its
2018 PMP to the ALUC only about two weeks before county’s Board of
Supervisor PMP adoption. We are not aware of any substantive comments that
the ALUC has provided to county regarding an updated LUCP as of May 2020.
3. The ALUC has Failed to Timely Update the ALUC 2010/2011 Palomar Airport LUCP. Almost
two years have passed since C4FA’s September 2018 letter to the ALUC noting Palomar Airport
LUCP deficiencies and since the Board of Supervisor’s October 2018 adoption of its 20-year
Palomar Airport Master Plan. And, we understand that the county’s proposed 2018 PMP was
available to ALUC staff in draft in 2017. Having ignored 3 years of lead time, the ALUC cannot
claim in good faith that it is maintaining a CURRENT LUCP that fairly apprises property owners
near Palomar Airport of the noise and safety ALUC zone restrictions on their property. In the
meantime, many property sales could be occurring substantially affecting buyers and sellers.
The City of Carlsbad, the County of San Diego, and the ALUC are well aware of the problems
that lack of ALUC transparency has caused to private property owners surrounding Palomar
Airport. We understand that several land parcels just west of Palomar Airport resulted in several
proceedings and lawsuits against Carlsbad, the County, and the ALUC from 2014 to 2020.
In a lawsuit concerning 5817 Dryden Place, Carlsbad, CA, the plaintiffs alleged that as a result of
the ALUC restrictions, which essentially converted the property from first class office space to a
warehouse with very limited occupancy, their property had been unfairly taken and/or restricted.
We understand that County bought the Dryden Place property for approximately $6,000,000 to
resolve this most recent lawsuit.
IF the ALUC had given proper notices to property owners around Palomar Airport when the
property was first restricted, the City of Carlsbad, the County, and the ALUC would have avoided
hundreds of hours of effort, hundreds of thousands of dollars in attorney fees, and likely a County
purchase price substantially below the $6,000,000.
4. Lastly, the ALUC Fails to Provide Adequate Notice to Property Owners Surrounding Airports
Who May be Impacted by ALUC Property Noise, Safety, and Occupancy Restrictions. Federal
and State Constitutional Due Process Requires More than a Brown Act Blanket Notice of ALUC
Agenda Items given to the community generally. The ongoing ALUC inadequate processes have
caused prejudice to private property owners surrounding Palomar Airport as noted in the
Dryden Place example above.
For the above reasons, C4FA requests the ALUC continue its consistency review until ALUC staff may
prepare a staff report for ALUC members as outlined in this letter or deny the finding of consistency as
noted initially in this letter. Please especially note that a June 4, 2020 ALUC consistency determination
would automatically fail to comply with county’s current Palomar Airport Master Plan, which the county
adopted in 2018 and for which the ALUC has failed to designate noise and safety zones.
Thank you for your review and consideration of this letter.
C4FA by Hope Nelson. [Signing authority for HN given to Ray Bender]
ATTACHMENT: C4FA September 19, 2018 letter noted in text above.
Cc: Cory Briggs, Attorney for C4FA in pending actions with Carlsbad and County.
2020 5 SDCRAA ALUC Palomar Consistency Letter Final Final Final
Sept. 1, 2020 Item #5 Page 116 of 194
September 19, 2018
Citizens for a Friendly Airport 7040 Avenida Encinitas, Suite 104-467 Carlsbad, CA 90211
San Diego Regional Airport Authority Airport Land Use Commission SDCRAA Administration Building 3225 No. Harbor Drive San Diego, California 92101
Members: C. April Boiling, Greg Cox, Jim Desmond, Mark Kersey, Robert T. Lloyd, Paul Robinson, Johanna S. Schiavoni, Michael Schumacher, Mark B. West and Ex-Officio Board Members: Tim Gubbins, Jacqueline Wong-Hernandez, , Col. Jason Woodworth President/CEO Kimberly J. Becker SDRAA Legal Counsel: Amy Gonzalez VIA: Attn: Ms. Diane Casey (Assistant to CEO Kimberly J. Becker [DCasey@san.org]) [Note: Email name and address we were given when
calling SDRAA today Wednesday, September 19.) Re: ALUC Processing of Update to 2010/2011 McClellan-Palomar Airport Land Use Compatibility Plan As a Result of County 2018 – 2038 Palomar Master Plan
Sept. 1, 2020 Item #5 Page 117 of 194
Ladies & Gentlemen: We understand that the County of San Diego Board of Supervisors will likely approve its twenty-year McClellan-Palomar Airport
Master Plan and certify its Programmatic EIR on October 10, 2018. We also understand that the SD ALUC will be updating the 2010/2011 MP Land Use Compatibility Plan to comply with state requirements.1 The C4fa-detailed-comments follow in the table below. Please assure that these comments are considered by ALUC staff and the ALUC members when preparing the update.
But a few new comments are appropriate in light of county comments in the last week. When preparing its MP LUCP update, the ALUC needs to look at the actual Palomar Master Plan (PMP) projects county proposes – as opposed to the labels that county is trying to give its PMP in its last minute effort to overcome public comments on its PMP and
Draft PEIR. Here is why.
• Palomar Critical Design Aircraft. County’s PMP concedes that more than 500 annual C and D operations have occurred at Palomar annually over the last 15 years. In fact, the number exceeds 10,000 annually in most years. The FAA requires the
Airport Reference Code (ARC) to conform to the actual critical design aircraft. Yet county’s recent papers suggests it may
“maintain” Palomar as a B-II airport.
• Runway Safety Area. County has said in its PMP that it will ultimately place an EMAS [350-foot Engineered Materials Arresting System] at each runway end. However, county’s PMP says it won’t install the east end EMAS for at least 13 years.
These facts make it apparent why county may want to continue to say Palomar is a B-II airport when the proper FAA critical aircraft design ARC designation is C. An FAA C designation requires 1000-foot runway safety areas (RSAs) at each end of the Palomar paved runway. Or an FAA-approved EMAS. Count’s clear desire – even with an initial 200-foot runway extension – is to operate without an east end EMAS. As a result an aircraft taking off toward the east and overshooting the runway travels into the Palomar Unit 3 19 acre runway east end landfill, which has a methane gas collection system beginning
about 4 feet below the sandy surface.
• PMP Wingspan Separation. Quite clearly what county is trying to claim is that it is maintaining a B-II airport to sooth public objections but build projects to meet FAA ARC D requirements. The best example of this is county’s plan to increase the
1 The CalTrans State Aeronautics Handbook, which State law requires the ALUC to follow, recommends an update at least every 5 years. So the MP LUCP update was due several years ago, especially in light of the very substantial development of the vacant land around Palomar Airport and within 2 miles of it.
Sept. 1, 2020 Item #5 Page 118 of 194
distance between the Palomar taxiway centerline and runway centerline so that larger C and D aircraft with wider wingspans can concurrently operate.
• Runway Width. The FAA requirement for runway width of a B airport is 75 feet to 100 feet. Yet county now has a 150-foot runway and will relocate the runway with a similar width. Thank you for considering the C4fa comments. Please confirm your receipt of this email and the distribution of the comments to Raymond Bender at benderbocan@aol.com and 760 752-1716. We also request (1) actual notice of all meetings at which the ALUC will consider the MP LUCP Update and (ii) copies of all materials that ALUC provides ALUC members at least two
weeks before the meeting at which the ALUC considers an MP LUCP update so that C4fa members have a fair opportunity to review the issues. That process will allow better C4fa input at the upcoming ALUC meeting considering the MP LUCP Update. We also request that the ALUC determine and provide actual notice to the property owners surrounding Palomar Airport that may be impacted by Updated ALUC MP LUCP noise and safety maps. As mentioned in the table below, we understand that some owners whose property was impacted by the 2010/2011 ALUC MP LUCP Update did not timely receive actual noise and were substantially adversely affected. PLEASE ESPECIALLY NOTE THAT THE BELOW TABLE CONTAINS SEVERAL SCREEN SHOTS WHICH MAY TAKE A MINUTE TO APPEAR ON THE COMPUTER SCREEN. PLEASE ASSURE THE SCREEN SHOTS ARE PRESENT BEFORE REPRODUCING COPIES FOR THE INTENDED RECIPIENTS.
Comments of Citizens for A Friendly Airport (C4FA.org) on ALUC Update of 2010/2011 McClellan-Palomar Land Use Compatibility Plan as a Result of County’s New Twenty Year Palomar Master Plan
Preliminary Comments:
• C4fa. Citizens for a Friendly Airport is a citizens group, whose members have provided comments to County and Carlsbad on (i) the March 2018 County PMP Programmatic EIR (PEIR); and (ii) the June 2018 County re circulated portions of the PEIR.2 C4fa maintains a website at C4fa to inform the public about the impacts of county’s proposed Palomar Master Plan
projects.
2 After receiving comments from the city of Carlsbad’s nationally recognized aviation law firm (Kaplan, Kirsch, and Rockwell) and the public, county in June 2018 requested further PEIR comments on biological, greenhouse gas (GHG), energy consumption, and Runway Protection Zone (RPZ) issues. By August 6, 2018 Carlsbad and the public again commented noting major deficiencies in the county PEIR assumptions, facts, methodologies, and analyses.
Sept. 1, 2020 Item #5 Page 119 of 194
• C4fa McClellan- Palomar Land Use Compatibility Plan [LUCP] Concerns. o Based on reviewing the process previously followed by the SDRAA ALUC, Carlsbad residents are concerned that
the ALUC process does not sufficiently analyze or inform the public of ALUC restrictions on lands near the airport.
o For instance, at a Carlsbad Council meeting earlier this year, two businessmen appeared before the Council and noted (i) ALUC restrictions have caused them to lose more than $1 million, essentially converting a first class office building, to use for limited storage and (ii) they became aware of ALUC LUCP restrictions incidentally, not by ALUC actual notice. o The ALUC should assure that new ALUC restrictions resulting from the county 2018 PMP and/or Airport Layout
Plan (ALP) are properly adopted with actual notice to the property owners who may be impacted so they can timely provide their input to the ALUC.
• C4fa Public Input. C4fa members have appeared before the Carlsbad City Council five times since February 2018 to
provide the council information related to county’s PMP and PEIR and also attended PMP workshops. County operates MP
pursuant to Carlsbad CUP 172, which county says in its current PMP and PEIR, that county need not comply with.
• Savecarlsbad.com For the last two years, one C4fa member (Graham Thorley) has maintained the website www.savecarlsbad.com to inform the public of Palomar-related issues.
• Carlsbadpatch.com & San Diego Free Press Palomar Info. For the last four years, one C4fa member (Ray Bender) has posted more than 200 articles on Carlsbadpatch.com related to Palomar developments and had seven articles published in
the San Diego Free Press related to Palomar issues.
• The 3 PMP Projects. The county 2018 PMP proposes three basic Palomar Airport expansion projects: o D-III Conversion: Converting Palomar from an FAA-rated B-II airport to a D-III airport to handle a higher
percentage of corporate jets and passengers by regularly scheduled air carriers. County forecasts a future passenger level of 304,000 to 575,000 depending on marketing success. In December 2016, Supervisor Horn stated it was
Sept. 1, 2020 Item #5 Page 120 of 194
time for Palomar to replace the GA aircraft with the larger, faster commercial aircraft. Attachment A to these
comments provides a transcript of Mr. Horn’s comments, which advise small aircraft to move to other airports.3
o 200-foot Runway Extension & West End EMAS & East End RSA (Near Term).
o Runway Relocation north about 100 feet, and a total either 800-foot extension or 900-foot extension from 4900 feet to 5700 or 5800 feet, and EMAS at both west and east ends (Longer Term). County’s PMP and PEIR
conceal the 900-foot extension (rather than 800-foot extension) in the following way.
At the December 15, 2016 BOS meeting, four of the five BOS members accepted the SD consultant Kimley-Horn recommendation for an uop to 800-foot extension. Supervisor Horn did not he pressed the consultant to come up with an extra 100-feet.
On the surface, the 2018 PMP projects refer to an up to 800-foot extension. However, Kimley-Horn as
directed by Supervisor Horn suggested a massive west runway end retaining wall costing about $12 million in order to create additional land.
County in the past, without any fanfare or notice to the SDCRAA ALUC increased the Palomar runway from 4700-feet to the current 4900-feet.
In other words, quite clearly what the BOS intends to do is approve an unneeded west end $12 million retaining wall so that county at some time in the future with a CEQA negative declaration can add 100
feet to its then 800 cumulative extension.
CONCLUSION: The ALUC needs to pin the county down or simply analyze a 900-foot runway extension rather than an 800-foot runway extension.
o D-III Conclusion:
o Although county in the last week has suggested it might label Palomar as a B-II airport, its PMP makes clear that it is undertaking improvements for a D-III airport. The PMP improvements documenting that include D-III sized runway lengths and widths; installing 350-foot EMASs [eventually) in lieu of 1,000 foot RSAs to meet D-III FAA RSA requirements; building a $12 million runway west end massive retaining wall, which is not needed for an 800-foot runway extension but is needed for a 900-foot runway extension; and installing
$8.6 million of navigational aids. As noted initially above, judge county not by its labels but by the actual improvements it intends and passenger levels it forecasts, which determine the size of the ALUC-designated noise and safety areas.
3 As the SDCRAA recognized when it prepared its 2010 Regional Airport Strategic Plan (RASP), the SDCRAA can divert aircraft from Lindbergh Field by changing rate structures that discourage Lindbergh Field use and encourage aircraft to Palomar. This is just one example of how increased FAA-rated C and D aircraft using Palomar will displace the smaller general aviation aircraft.
Sept. 1, 2020 Item #5 Page 121 of 194
• Specific McClellan-Palomar Land Use Compatibility Plan Issues. C4fa members have reviewed the 2010/2011 McClellan-Palomar LUCP. Based on that review, we request that ALUC staff discuss the below issues in its report and recommendation to the ALUC members when considering how to update the 2010/2011 MP LUCP.
• Table Part A below discusses specific ALUC compatibility issues that the county PMP project elements raise. Table Part B below indicates why various sections in the ALUC 2010/2011 MP LUCP require updating.
PART
LUCP Issues raised by the County 2018 PMP Project Elements
Preliminary Note:
The SDCRAA ALUC airport Land Use Compatibility Plan (LUCP) process follows the guidance set forth in the CalTrans Division of Aeronautics “California Land Use Planning Handbook.” In § 2.4.2 entitled ALUCP Amendments at page 2-9, the Handbook states: “A comprehensive review and update is recommended at least every five years. The ALUC last updated the McClellan-Palomar LUCP in 2010/2011, about 7 years ago.
As noted below, in the last 12 months alone, Carlsbad has authorized construction projects within 3 miles of the airport totaling more than 1,000,000 square feet. Accordingly the ALUC should be starting a “comprehensive” MP LUCP review even before county submits its proposed $110,000,000 Twenty-Year Palomar Master Plan project expansion.
Also, note that when the ALUC last updated the MP LUCP, the ALUC used the Cal Trans 2002 Handbook edition. [See § 1.2 at page
1-4 of 2010/2011 MP LUCP.] In short, a new ALUC analysis redefining airport-related noise and safety zones needs to take into account (i) considerable Carlsbad development near the airport, (ii) the latest requirements of the 2011 Cal Trans Handbook, and (iii) county’s desire to both extend its runway 800-feet over a methane emitting landfill and to relocate the runway and convert Palomar from an FAA-rated B-II airport to
an FAA-rated D-III airport.
# Issue Old v. New and/or Requested ALUC Analysis & Points to be Considered
Sept. 1, 2020 Item #5 Page 122 of 194
Clarifications
1 Runway Size Phase 1: 4900-feet to 5100
[EXISTING Runway location]
• Advise how the 5 existing noise areas and 5 existing safety areas will change
• Points to consider include:
o Post 2010 Carlsbad Development. Carlsbad has permitted many hotels and developments just south of Palomar Airport Road (PAR) within 2 miles of MP since the 2011 LUCP;
o D.R. Horton Runway Approach Development. As these comments are written, D.R. Horton is building many new townhouses directly within the Palomar east approach path;
o 20-Fold Forecasted Increase in Passenger Traffic. County forecasts air carrier annual passenger increases from less than 15,000 today to between 304,000 and 575,000 in its twenty-year plan4. o Displacement of GA Aircraft and Upward Swing in FAA-Rated C and D Aircraft. Supervisor Horn at a Board of Supervisor meeting set a goal of displacing
general aviation aircraft in favor of commercial aircraft. [See our Table Attachment A, Horn 12/15/16 Transcript.]
When FAA-rated A and B aircraft crash, they carry comparatively few people and comparatively little fuel. When FAA-rated C and D aircraft crash, they typically carry far more people and fuel and crash at faster speeds. The table below provides a rough listing of fuel and passenger loads. In the last four years, Palomar has handled
few air carriers and very light passenger loads. Most B and C aircraft operations
were corporate with the aircraft carrying 2 to 8 people. As the table shows, as aircraft size, speed, and fuel carriage increases, the aircraft in a crash is a bigger bomb capable of causing great damage. The many manufactured housing units about 2 miles east of the Palomar Airport runway would easily be destroyed by a large
4 As the current MP LUCP notes (See C-5 of Appendix C) ALUC-designated safety zones take into account harm to aircraft occupants as well as safety on the
ground.
Sept. 1, 2020 Item #5 Page 123 of 194
aircraft crashing into the mobile home park.
REQUEST: When calculating its new MP LUCP safety areas, the ALUC should include its own Risk Safety Table showing how converting Palomar from a B-II airport to a D-III airport or D-III airport and changing the aircraft mix will increase safety concerns. How will the size of the impact areas and dispersion areas change with D-III aircraft v. A or B aircraft?
Comparative Risks: A v. B v. C v. D Aircraft
Size Max Take Off
Weight
Max Approach Speed (knots)
Max
People at
Risk on Aircraft
Max Fuel
Load
(lbs.) and (gal)
A 2,750 pounds 91 2 432 (72 gal) B ? 121 30
C ? 141 60 ?
D 91,000
pounds
166 110 41,300
(6,883 gal)
2 Runway
Size
Phase 2: 100-
foot North
Relocation and
Rebuild: 4900-feet to 5700 feet5
• Advise how the 5 noise and 5 safety areas will change again when county both shifts its
runway north and extends the runway 800 feet in total.
• Points to Consider – in addition to those in Item 1 above – discuss the issues below. o Added Threats to ECR Traffic. With the existing 4900-foot runway, landing
aircraft touch down about 1200 feet from ECR. With a 5700-foot runway, landing aircraft will touch town about 400 feet from ECT. At an approach speed of 166
5 We are aware that the 2010/2011 MP LUCP refers to the ALUC analyzing runways in the range of 4,000 to 6,000 feet in length. However that analysis
involved a B-II airport serving 90% small GA aircraft with comparatively few passengers. As noted in the table above, a Palomar Airport handling
predominantly B, C, and D aircraft and hundreds of thousands more passengers raises entirely different safety considerations.
Sept. 1, 2020 Item #5 Page 124 of 194
knots, the aircraft travels about 280 feet per second. So an 800-foot extended runway
will place 100,000 pound landing aircraft about 1.5 seconds from ECR traffic. It appears that landing aircraft would be about 100 feet above ECR car and truck rooftops. When updating the MP LUCP, please provide the accurate data to replace our estimated data and assess the increased risk.
o Added Threats to Areas North of Relocated Runway & Taxiway. Relocating the runway north removes north Palomar Airport aircraft parking. That movement combined with faster, larger aircraft increases the chance of an errant aircraft sliding into private property north of the runway. Assess this risk.
o Changes in Risks Resulting from EMAS Installs. Palomar now has no Engineered Material Arresting Systems (EMASs). County plans to install two EMASs, one at each relocated runway end (with the east end EMAS delayed about 15 years.) EMASs are meant to control rolling aircraft (at the end of takeoff or end of landing)
traveling no more than about 70 knots). However, an EMAS install requires the
county to designate a “buffer” area between the interior EMAS and runway-landing threshold. In short, the landing runway threshold will be displaced to assure landing aircraft touching down at 121 to 166 knots do not enter the EMAS closest to landing. Accordingly, the threshold displacement alters the approach RPZ area. In the updated MP LUCP, distinguish the approach and departure RPZs and explain how
county PMP project changes affect their designation.
• REQUEST: In the updated MP LUCP, address the issues discussed above.
3 County-Desig-
nated
RPZ Areas
County’s June 21, 2018 Re-
circulated PEIR
RPZ Areas
• County’s June 21, 2018 Re-circulated PEIR parts includes redrawn RPZs for various
Palomar Airport alternatives. For the many reasons set forth in our August 2018 comments,
to the county PEIR re-circulation, the county-depicted RPZs are incomplete and often misdrawn. See the Bender comment Items 31 – 43 at pages 51 – 75 of the Comments on the County Re-circulated PEIR portions. We mailed hard copies of our comments to the ALUC during the week of August 6. The ALUC also has our binder comments from March 2018,
which describe in detail why county’s PMP and PEIR fail to comply with Government Code Planning and Zoning requirements, which we understand the ALUC needs to review to find that the County General Plan is consistent with the ALUC Updated 2018 MP LUCP.
Sept. 1, 2020 Item #5 Page 125 of 194
• Rather than repeat all of our PMP PEIR RPZ comments, we incorporate them by reference. In sum:
o County is incorrect when it suggests that future RPZ areas will be smaller than
current RPZ areas. The increased airport mix of faster, larger aircraft will enlarge the areas. If the ALUC disagrees, please explain in your updated MP LUCP. o In preparing the RPZ areas, county has failed to properly account for EMAS installations and EMAS/runway buffer areas. o County has failed to provide drawings actually showing the property owners
impacted by new RPZs.
• REQUEST: In the updated MP LUCP, address the issues above.
4 Passen-ger Load
and
Larger
Aircraft
Increase from 15,000 to as
much as 575,000
• The ALUC 2010/2011 MP LUCP refers to a then existing 15,000 annual Palomar passengers with projected passengers of 35,000.6
• County’s 2018 PMP forecasts a low passenger range by 2036 of 304,0007 (county’s PAL 1) annual passengers and a high of 575,000 (county’s PAL 2).8
• REQUEST: The ALUC Updated 2018 MP LUCP needs to assess the increased passenger risk resulting from:
o Up to 15 to 20 times as many passengers being handled; and o Passengers using 100 seat aircraft rather than 30 to 50 seat aircraft, which
means crashes will occur with substantially more fuel aboard and likely at faster speeds.
PART B
Comments on Sections in the ALUC 2010/2011 MP LUCP Requiring Updating
6 See MP LUCP, Table IV-2 at page 4-13. 7 See 2018 PMP, Table 3.17 at page 3-33. 8 See 2018 PMP, page 4-2 and county based this number on an earlier ALUC RASP.
Sept. 1, 2020 Item #5 Page 126 of 194
Comments on ALUC 2010/2011 MP LUCP Chapter 1 entitled Introduction
1 § 1.1,
Overview p. 1-1
• Compati-
bility v. Consistency
• PUC References
• ALUC Terminology: Compatibility v. Consistency. Throughout the LUCP, the ALUC
uses the terms “compatibility” and “consistency.” ALUC does not well define the difference between the terms. Clarification would be helpful. o We understand “compatibility” to focus on whether local community land use
policies around Palomar are compatible with the standards established in the Cal
Trans, Division of Aeronautics, Land Use Planning Handbook and the standards that ALUC establishes. o In contrast, we understand the term “consistency” to focus on whether (i) local community-adopted General Plans are “consistent” with the ALUC-established
airport compatibility standards or (ii) inconsistent because a local entity has qualified its acceptance. .
o We especially focus on this issue as a result of a C4fa member conversation with ALUC staff last year. In that conversation, the staff member was especially sensitive to the use of these two different terms. We wish to be accurate. Precise guidance
would be helpful.
• REQUEST: If our understanding of the meaning of the two terms is incorrect, please clarify the correct use of these terms in the ALUC updated MP LUCP. If our understanding is correct, revise the MP LUCP to more clearly make the distinction. Consider supplementing the ALUC MP LUCP definitions, which occur later in § 2.2.
• MP LUCP Statutory References. The MP LUCP Appendix A reproduces various laws. It would be helpful if the MP LUCP crossed referenced Appendix A when citing the law.
§ 1.1.2 Statutory
Require-ments p. 1-2 et
• ALUC – FAA
Jurisdictional Issue
• At p. 1-3, the MP LUCP notes that the “ALUC has no jurisdiction over federal lands.” Due to the 2018 county PMP projects proposed, interesting issues arise as to how the foregoing
limitation impacts ALUC noise and safety areas for the following reasons:
o FAA Leased Lands. The ALUC needs to clarify what “federal lands” means. The
Sept. 1, 2020 Item #5 Page 127 of 194
seq
• Public Notice Issues
Related to
ALUC Adoption of MP LUCP
FAA does not own the MP northeast parcel at El Camino Real (ECR) and Palomar
Airport Road (PAR). However, the 2018 county PMP lists among the projects that will be carried out the installation of $8.6 million dollars of navigational improvements that will be necessary on the northeast parcel as a result of county extending its runway 800 feet eastward. County leases various land areas on the
northeast parcel to the FAA. Question: Are lands leased to the FAA within ALUC
jurisdiction? Are lands leased to the FAA within the city of Carlsbad land use
jurisdiction? o RPZs. If lands leased to the FAA are not within ALUC jurisdiction, how does that conclusion impact, if at all, the designation of RPZ zones and other safety zones that
the ALUC designates in its updated MP LUCP? We understand that in the past, the ALUC – when determining the five safety zones around Palomar – has included the northeast parcel as the Runway Protection Zone (RPZ)
• REQUEST: In the updated MP LUCP, explain: o Whether the ALUC does or does not have jurisdiction over lands that the county leases to the FAA for navigational aids and provide the FAA correspondence confirming the ALUC’s conclusion. o Whether and how such leased land impacts the ALUC designation of MP LUCP
noise and safety zones.
• ALUC NOTICES TO PROPERTY OWNERS.9 MP LUCP § 1.1.2 discusses laws applicable to the ALUC creating an MP LUCP but says nothing about what notices the land
owners affected by ALUC designation of noise and safety zones are entitled to. The
importance of this issue is shown by recalling recent history. o Adversely Affected Landowners. We understand that several months ago several businessmen owning land within MP LUCP land-restricted areas appeared before the
Carlsbad city council. They noted that ALUC restrictions had greatly restricted the
9 The C4fa comments are general in nature. No attempt is made to analyze legal issues. We note though that the ALUC restricting land uses around Palomar
without first giving actual notice to known property owners in a relatively restricted area seems to raise federal and state due process issues similar to those
arising in condemnation and inverse condemnation actions.
Sept. 1, 2020 Item #5 Page 128 of 194
value of their office facility, perhaps by as much as $ 1 million. They indicated they
had never been given actual notice of the restrictions. The Carlsbad Council refused to grant a variance for use of the property. o Due Process Standard. We have no idea what the ALUC position is on this issue.
Perhaps it is (i) the ALUC has no obligation to give actual notice to affected property
owners or (ii) constructive notice by publication in newspapers is adequate. C4fa has no notice of what the legal standard is. And that is precisely the point. The ALUC is undertaking regulation without fully informing those regulated what their rights are. If the ALUC is constructively taking property by regulation, property owners should be given actual notice so they can appear at the ALUC meeting at which their
property interests may be adversely affected.
• REQUEST: In §1.1.2 of the updated MP LUCP, explain what notices the ALUC will give to property owners affected by its proposed noise and safety zone designations. If the ALUC position is that no actual notices are required, explain why not. Also state
the newspapers that the ALUC does use when it publishes notices of its actions. Comments on ALUC 2010/2011 MP LUCP Chapter 2 entitled Airport Land Use Commission Policies
2 § 2.2.14
CNEL p. 2-3
• Berkeley Keep Jets Over the Bay,
111 Cal.Rptr.2d 598 SNEL
• The MP LUCP states in § 2.2.14 that CNEL is the land use metric adopted by the State of California for land use planning. State law includes both legislative and court made law. In
Berkeley Keep Jets Over the Bay, the court concluded that airport planning also required analysis of Single Noise Events (SNELs). The MP LUCP definitions in § 2.2 do not address
this issue.
• REQUEST: In its updated MP LUCP, explain how the ALUC will consider the SNEL analysis issue in its analysis now that the court has required it. In that discussion, explain how SNELs affect student learning. See for instance the August 2018 report entitled “Assessing Aircraft Noise Conditions Affecting Student Learning – Case Studies” by Arup and Partners and Cornell University and Queen Mary University. We reproduce the cover page from the report below to aid you in finding it.
Sept. 1, 2020 Item #5 Page 129 of 194
§ 2.4 Airport Impact Types,
p. 2-10
and §3.6 Over-flights at pp. 3-55 et seq
• Overflights
Recall also that the ALUC has identified its responsibility to assess the impacts of aircraft Over flights. [ See MP LUCP p. 2-11; MP LUCP §2.4.2(d)]. In MP LUCP § 3.6, the ALUC does discuss overflight policies. However, the ALUC in essence simply says that if you are a property buyer and get notice that an airport is nearby, the ALUC has satisfied its obligation because the State dictates such notice.
But telling property owners that the airport may affect their homes is entirely different from forewarning them that their children’s education may be impacted – as the noted report documents.
Sept. 1, 2020 Item #5 Page 130 of 194
• Overflights. Various MP LUCP sections, including § 2.4.1 and § 3.6, refer to aircraft overflights as one of the four ALUC concerns. In a nutshell, the ALUC says it can do little if anything about such flights. Perhaps the ALUC could improve its analysis. For instance general aviation over flights dump lead from leaded aviation fuel on houses below.10
o Overflights trigger both noise and safety concerns. Neither the FAA, nor county,
nor ALUC describe what over flights are proper and which are not.
o We suspect that few if any ALUC Board members could explain when overflights violate the law by being too low as related to the distance of aircraft taking off and arriving at Palomar. We did not see anything in the MP LUCP, which explains this.
• REQUEST: In the ALUC MP LUCP, state (i) when aircraft arriving at and leaving Palomar Airport are deemed to be too low and hence raise safety concerns, (ii) the written source of the info that the ALUC is using, and (iii) the official complaint procedure with contact info that concerned members of the community may use when such situations occur.
From the perspective of C4fa, the ALUC shirks its duty if its response is: Talk to the FAA or Talk to the County. We understand that the answer to the foregoing question needs to relate the aircraft altitude to its distance from Palomar and perhaps to the type of aircraft (FAA-rated A, B, C, or D).
10 Because the use of leaded aviation fuel is so bad, we understand that the present FAA target to eliminate the sale of leaded aviation fuel is December 2018. However, private GA pilots tell us that leaded additives are readily available and when the sale of leaded aviation fuel is eliminated, they will simply use the additives – rather than buying a new engine or retrofitting their old engines at substantial cost.
Sept. 1, 2020 Item #5 Page 131 of 194
§2.4 and
§ 2.6.1 and § 2.8 and § 2.9 and §
2.12
Consistency of
Vista General Plan with ALUC Compatibility Plan
Also, provide an answer in terms of meaningful street locations. An answer along the lines of: Aircraft departing Palomar must be at least x feet above mean sea level when
more than y miles from the airport does not tell the reader where the x mile limit is. The ALUC can accomplish that by including in its updated MP ALUC Thomas Guide Atlas maps with appropriate radii from the airport shown.
• The ALUC 2010/2011 MP LUCP Exhibit III-2 [“Compatibility Policy Map Safety] shows the ALUC Safety Zone 4 stopping just shy of the Vista Municipal boundary. If the Palomar runway is extended 800-feet to the east, it appears based on the Exhibit III-2 scale that
property owners within the city of Vista will be impacted. The colored LUCP Exhibit III-2 provides better information but a reproduced black and white Exhibit III-2 is reproduced below.
Sept. 1, 2020 Item #5 Page 132 of 194
2.4 and § 2.6.1 and
§ 2.8 and
§ 2.9 and § 2.12
Consistency of
County General Plan with ALUC Compatibility Plan
• Based on the county 2018 Palomar Master Plan, it appears the ALUC needs to resolve an issue it has not previously recognized. o Note from the MP LUCP Exhibit III-2 above that the county airport has an irregular
parcel outlined in blue (in the original drawing) in a north-south orientation.
o This irregular parcel crosses the Runway Protection zone and safety zones 2, 3 and 4.
o That parcel is on the Northeast corner of El Camino Real (ECR) and Palomar Airport Road (PAR). o In theory, county operates Palomar Airport pursuant to Carlsbad Conditional Use Permit (CUP) 172. However –
The Carlsbad CUP 172 boundaries [as shown in a CUP attachment] do not extend across El Camino Real to the Northeast airport parcel.
Moreover, County in its 2018 PMP and in related statements has said that it is not bound to comply with Carlsbad planning or zoning because county is a
superior governmental entity.
o Although county has adopted a General Plan as required by the Government Code,
the GP on its face states that it applies to the unincorporated areas of the county. o Accordingly, if county wants to build any structures within the irregular parcel outlined in blue noted above – which county owns – there is neither a Carlsbad General Plan nor a County General Plan.
o Conclusion: Until either (i) county says any structures it wishes to place within the irregular blue shaped area are subject to Carlsbad Planning and Zoning or (ii) county amends its General Plan in accordance with Government Code requirements to apply county planning and zoning to the affected area, it would be impossible for the
ALUC to make the statutorily required finding of consistency with the ALUC’s
updated MP LUCP.
o Note: The same issue applies at Gillespie Field and should be addressed in the Gillespie LUCP.
• REQUEST: In the Updated MP LUCP, advise (i) how the county PMP projects will impact Vista residents and (ii) what actual notices the ALUC will give to Vista property owners impacted by the county Palomar Runway extension.
Sept. 1, 2020 Item #5 Page 133 of 194
• REQUEST: In the Updated MP LUCP, advise how the ALUC will address the issue of county placing structures in the irregularly shaped blue area noted above when structures in this area exist in a “No Man’s Land” currently not regulated by Carlsbad (because the county denies the Carlsbad jurisdiction) and not regulated by the county because the county plan applies to unincorporated areas of the county and the relevant area is with the boundaries of the city of Carlsbad.
Comments on ALUC 2010/2011 MP LUCP Chapter 3 entitled McClellan-Palomar Airport Policies and Maps
3 § 3.2
§ 3.2.1
§ 3.2.2
Compatibility
Zone
Designation
• These sections seem inconsistent for these reasons:
o § 3.2.1 suggests that the 2010/2011 MP LUCP is based on the FAA approved 2008 ALP, which refers to an ultimate ARC of C-II. o § 3.2.2 in contrast refers to ALUC-designated safety zones based on “general
aviation” aircraft [as opposed to commercial sized aircraft].
o The risk to people on the ground in safety zones and the size of the crash debris field increase dramatically as aircraft increase in weight, fuel carried, and speed. o Similarly, the risk to people in a crashing aircraft increase dramatically depending on whether an FAA-rated 90,000 pound aircraft carrying 6,000 pounds of fuel, and traveling faster carries 5 corporate passengers or 100 commercial air carrier
passengers.
o In short, did the ALUC 2010/2011 safety zones analysis base its zone designations on the 10,000+ larger aircraft then using Palomar [despite the inaccurate designation of the critical design aircraft as the Falcon] or only on the “general aviation” aircraft
that the 2010/2011 MP LUCP refers to? Where is the supporting proof and
calculations of the crash debris fields to support the ALUC conclusion?
• REQUEST: In the Updated MP LUCP (i) address the issues noted above and (ii) rather than referring to “general aviation” aircraft, provide a table showing the heaviest, most
fuel laden, and fastest aircraft used to determine the crash safety areas and debris fields. Also in a technical Appendix provide the assumptions, methodology, and
Sept. 1, 2020 Item #5 Page 134 of 194
computer model used to determine the noise and safety zones so that a consultant
retained by the public may review them.
§ 3.2.2 Runway Length and Orientation • REQUEST: Because county plans to relocate its runway northward, and hence change the orientation of the runway, which the ALUC analyze in 2010/2011, in the Updated MP LUCP, show how the safety areas change. Presumably, that analysis means increasing the restrictions on some property owners and reducing the restrictions on others. Likely, such changes will have a material financial impact on such owners.
Accordingly, in the Updated MP LUCP, provide maps and lists of property owners impacted to assure that such property owners received proper procedural due process of the intended changes.
§ 3.3 Noise Compatibility Policies for
McClellan-Palomar Airport
• The ALUC noise analysis applies CNEL principles only. In Berkeley Keep Jets Over the Bay, 111 Cal.Rptr.2d 598, the California courts imposed an additional noise analysis
requirement to account for numbers of Single Noise Event Levels (SNEL).
• REQUEST: In the Updated MP LUCP also provide a SNEL analysis especially as it relates to Carlsbad schools near the airport. As noted in Item 2 at page 14 above a 2018 study of the impact of noise on schools shows that student learning can be
substantially disrupted by aircraft noise. If the ALUC does not provide an SNEL analysis, explain why so that the issues are properly framed for court review.
Comments on ALUC 2010/2011 MP LUCP Chapter 4 entitled Background Data: McClellan-Palomar Airport and Environs
4 Table IV-2 at p. 4-13 and 4-14
Enplanements
• Note that the 2010/2011 MP LUCP assumed 15,000 to 35,000 annual enplanements whereas the 2018 PMP forecasts 304,000 to 575,000 annual enplanements.
• In other words prior Palomar operations endangered about 30 persons per aircraft and forecasts about 100 persons per aircraft being endangered.
Sept. 1, 2020 Item #5 Page 135 of 194
Metroplex Flight Path Changes
Helicopter flight path changes resulting from
new hospitals and schools.
• In addition the increased passenger load means higher numbers of larger, faster, more fuel-laden aircraft flying, which changes the size and shape of the crash debris zone.
• Note also that the FAA’s implementation of NextGen [which fans out flight paths over a
broader area as reflected by noise suits against the FAA from communities now suffering
noises in neighborhoods not formerly in issue] changes the Flight Track usage at Table IV-2 on page 4-14, which the ALUC relied on to prepare its 2010/2011.
• Also, Table IV-2 at page 4-15 relied for its analysis on the location of certain hospital and
schools. We understand that in the last 8 years, more schools and hospitals have been built and presumably will be addressed in the Updated MP LUCP since crash locations for helicopters ferrying patients will change.
Table IV-3 at p. 4-23 and 4-24
Improvements near runway
County General
Plan Consistency
• Table IV-3 is seriously out of date. In the last 4 years alone, Carlsbad has approved major commercial (many hotels) and residential units within 2 miles of an extended Palomar runway. The new ViaSat HQ campus alone is nearly 1,000,000 square feet.
• The ALUC information in Table IV-3 at p. 4.24 related to the County General Plan confuses us.
o Palomar Airport as well as much of the impact noise and safety areas are within the
city of Carlsbad.
o In its 2018 PMP, the county says that – as a superior governmental entity – county is not bound by Carlsbad Planning and Zoning. o We also understand that the County General Plan expressly says that it applies only to unincorporated areas. Any county Palomar Airport owned areas within Carlsbad
[such as the entire airport Palomar parcel on the northeast corner of Palomar Airport Road and El Camino Real] is within the city of Carlsbad. o It appears therefore that county uses county land in a “NO MAN’s” land not covered by the Carlsbad General Plan and not covered by the County General Plan or the GP
policies..
o Accordingly, it appears that the last half of Table IV-3 on p. 4.24 is incorrect. Please update and explain what changes will be made and why. Please assure that the
Sept. 1, 2020 Item #5 Page 136 of 194
§4.3.2 at p. 4-33
Compatibility Data: Safety
ALUC is basing its revision on what the San Diego Board of Supervisors has actually
adopted in writing, as opposed to merely San Diego staff opinions.
• This section reliefs on various flight paths for its designation of safety zones. As noted above, the FAA introduction of Metroplex changes the prior data – as will relocation and
extension of the runway from 4900 feet to 5700 feet.
• REQUEST: Address the issues noted above in the ALUC Updated MP LUCP.
Comments on ALUC 2010/2011 MP LUCP Appendix C entitled Airport Land Use Compatibility Concepts
1. ALUC 2010/2011 Safety Analysis
See Appendix C [Airport Land Use Compatibility Concepts]
• At page C-6, the ALUC notes that the State Aeronautics Division Handbook requires analysis of commercial and general aviation airport safety contours. o The ALUC then presents Exhibits C-1 and C-2, which
respectively depict accident safety distribution contours for
arriving and departing general aviation aircraft.11 o The ALUC did not provide similar exhibits depicting accident safety distribution contours for commercial arriving and departing aircraft.
o As suggested above, we would expect commercial aircraft crash debris fields to be significantly different in shape and size due to their size, much greater fuel capacity, and speed.
• REQUEST: In the updated MP LUCP, add the commercial debris fields so safety impacts can be assessed of Palomar transitioning from a B-II airport to a D-III airport. When showing the fields superimpose them over actual properties owned so that such owners have proper notice as to how their properties may be restricted.
11 We assume the Exhibit term “accident distribution contour” is a euphemism for the distribution of aircraft debris during a midair safety event [loss of aircraft parts] or crash into the ground.
Sept. 1, 2020 Item #5 Page 137 of 194
• At page C-6, the ALUC also notes that ALUC-designated safety zones have a “spatial” and “time” element. When the ALUC prepared its 2010/2011 MP LUCP, the FAA had not yet implemented its Next Generation [NextGen] Satellite Aircraft guidance system.12 In 2010 (see
p. C-7), the ALUC assumed aircraft approaches extended 2000 feet on
either side of the runway centerline. NexGen changes this assumption. o Under the FAA pre-NextGen FAA Control Tower procedures, aircraft tended to have more uniform, repetitive flight paths. o In contrast, under NextGen, which Palomar is in the process of
implementing, flight paths will “fan out” into broader departure and arrival patterns. Accordingly, it is foreseeable that the ALUC safety zones will broaden. How this occurs is no doubt a difficult analytic problem, possibly requiring ALUC to retain aviation
experts.
o We simply note that a properly updated ALUC MP LUCP will address this issue.
• REQUEST: In the updated ALUC MP LUCP explain what criteria the ALUC uses to assess the number of feet that aircraft will approach and depart from the Palomar runway under NextGen instead of the currently used 2000-foot ALUC assumption.
• At page C-14, in Table C-1 entitled “Safety Zone Aircraft Accident Risk
Characteristics,” the ALUC evaluates various aircraft maneuver risks. It did not evaluate risks associated with Engineered Material Arresting Systems (EMAS) because Palomar in 2010/2011 did not have any EMASs.
o The county 2018 PMP proposes installation of EMAS systems in phases. As noted above, an EMAS is designed to handle aircraft
12 In the San Diego region, the FAA has referred to NexGen as its Metroplex Plan, possibly due to the substantial community opposition and lawsuits that NexGen has generated.
Sept. 1, 2020 Item #5 Page 138 of 194
overshooting a runway at about 70 miles per hour.
o An EMAS at the approach end of a landing aircraft is NOT designed for the approaching aircraft use. FAA-rated C and D aircraft can approach at up to 141 knots. Hence, approaching
aircraft must avoid the approach end EMAS at all costs.
o In addition, an aircraft taking off easterly from Palomar [the Santa Anna Wind scenario] today has 1000 feet of actual sandy area outside the runway in which to stop. If the runway is extended 800 feet and an east end EMAS installed, any aircraft overshooting the runway and EMAS will endanger
heavy traffic on El Camino Real, which adjoins the airport.
o An EMAS designed for 70 knot aircraft will not stop an aircraft on takeoff traveling 100 knots. This scenario can occur whenever an aircraft has a mechanical defect or
physically incapacitated pilot.
• REQUEST: Accordingly, in the ALUC updated MP LUCP explain how a Palomar installation of EMAS systems both improves and reduces safety and changes the ALUC-safety-designated zones under various assumptions. If the runway is extended 800-feet and an East end EMAS is added, the threat to traffic on El Camino Real (perhaps 100 feet from the EMAS end) seems significantly higher for aircraft entering the EMAS at above the 70 knot design speed – as where the aircraft encounters a mechanical failure.
• At page C- 15, the 2010/2011 MP LUCP discusses the “consequences variable.” Specifically, how large is the “swath size,” area over which accident debris is spread and hence the property and people on the
ground at risk in a crash. The existing LUCP refers to a swath size of about a football field for general aviation aircraft. However, the existing LUCP provides no data for commercial aircraft. o Since county plans to convert Palomar from an FAA-rated B-II
Sept. 1, 2020 Item #5 Page 139 of 194
airport to a D-III airport, the number of heavy, fast moving
aircraft carrying 2,000 to 6,000 pounds of aviation fuel will increase substantially. o The consequences variable also takes into account the
contamination that aircraft crashes may cause. On October 15,
2013, county’s consultant SCS Engineers provided the county a report discussing the highly toxic materials that aircraft today routinely carry. Please obtain a copy of the full report from the county to review all consequence hazards. We attach the first page of the report at the end of this table. We also quote several
report sentences listing the (i) pathogenic materials, (ii) radioactive materials, (iii) highly flammable materials, (iv) corrosive materials, and (v) cryogenic liquids turning to harmful gases that aircraft routinely carry.
• REQUEST: In the updated MP LUCP, describe the swath size for various commercial aircraft that will use Palomar in the future. Break out the swath size by size, speed, and expected fuel loads on larger aircraft.
• REQUEST: In the updated MP LUCP, describe how the swatch size enlarges when aircraft liquids turn to dangerous gases. In other words, crashing aircraft parts endanger only property and persons within the debris field. But the winds blow chorine and other gases
over a wider area. Address this issue in your updated MP LUCP.13
• At page C-16, the old MP LUCP notes that safety area designation depends in part on density and intensity requirements. In the last 7 years, Carlsbad developers have added substantial high density facilities along Palomar Airport Road including multiple hotels. Currently, a major
13 Many private and governmental Risk Management Plans [such as those involving property with large tank farms storing hydrocarbon and/or chemical
products] provide such analysis.
Sept. 1, 2020 Item #5 Page 140 of 194
Bressi Ranch addition of commercial and residential is underway.
Similarly, D.R. Horton is building townhouses and condominiums about 2 miles east of Palomar.
• On August 20, 2018, the FAA released its revised AC No. 150/5200-38
entitled “Protocol for the Conduct and Review of Wildlife Hazard Site
Visits, Wildlife Hazard Assessments, and Wildlife Hazard Management Plans.”14 As the AC notes, an important factor in assessing aircraft safety is the likelihood of bird strikes. The AC requires an assessment of how development around the airport can change bird habitat. In the last
12 months, it appears that developments within 3 miles of the airport are removing more than 1 million square feet of existing bird habitat. These developments include the (i) new ViaSat HQ building on El Camino Real just south of Palomar; (ii) multiple hotels just southeast of Palomar
Airport Road; and (iii) the very large Bressi Ranch addition of
commercial and residences southeast of PAR.
• In the updated MP LUCP, identify the increased Carlsbad density and intensity within 3 miles of the airport and how such development affects the ALUC-designated safety zones.
• At page C-18, the 2010/2011 LUCP notes: “Runway Proximity: In general, the areas of highest risk are closest to the runway ends … .”
o As noted above, aircraft now landing or taking off from Palomar touch down at least 1100 feet from the adjacent El Camino Real, a major arterial gridlocked at peak hours. o Extending the runway eastward by 800 feet, will reduce this
distance to 300 feet or a 2 second distance for a C or D aircraft approaching at about 150 knots.
o The ALUC has not in the past identified any land use restrictions
14 The FAA so-called “Advisory Circulars” (ACs) establish the protocol that airports receiving FAA grant funds must follow. The county has previously
received in excess of $30 million in FAA grant funds.
Sept. 1, 2020 Item #5 Page 141 of 194
that can protect vehicles on roads adjacent to airports.
• REQUEST: In the Updated MP LUCP (i) identify the increased risks to traffic on ECR from a county 800-foot runway extension and (ii) identify measures by which this risk could be reduced.
• At page C-20, the 2010/2011 MP LUCP notes: “Among other hazards to flight, bird strikes represent the most widespread concern. “ The ALUC then references FAA open landfill requirements. However, it appears
that the ALUC 2010-2011 LUCP made no effort to evaluate (i) the number of bird strikes affecting aircraft using Palomar or (ii) the amount of birds in the area. In the past, bird strikes presented mainly risks to a few corporate flyers and air carrier passengers. However, county’s new 20-year plan proposes to serve 304,000 to 575,000 air carrier passengers.
• In the Updated MP LUCP (i) identify the level of concern that bird strikes may cause at Palomar [Note: The MP website available to pilots notes substantial birds in the spring.]; (ii) identify the extent to which birds displaced by construction of more than 1,000,000 feet of empty land within 3 miles of the airport may be diverted to the MP northeast corner of ECR and PAR; and (iii) restrictions that might reduce the bird population in conformance with applicable laws.
Comments on ALUC 2010/2011 MP LUCP App D, Methods for Determining Concentrations of People
1 Property
Restrictions
Appendix D • By imposing its restrictions, the ALUC has the power to reduce the value of
property by more than 50%. Accordingly, the manner of calculating restrictions should be clear. Appendix D does not do that.
• Appendix D has several tables providing information but gives no examples
of real life situations to explain how the ALUC applies the data. Laypersons owning property in a possibly impacted safety area are left to guess how the ALUC makes its calculations.
Sept. 1, 2020 Item #5 Page 142 of 194
• REQUEST: In the Updated MP LUCP, provide at least 10 examples of how the restrictions on commercial and industrial property and on governmental property such as schools is calculated. When providing the calculations, state the assumptions the ALUC is making, the specific data source relied on, and show the calculations.
• REQUEST: It appears that relocation of the runway may reduce restrictions on a few properties. Identify these properties [recognizing that reduced restrictions are contingent on the runway actually being relocated] so that the ALUC has inversely condemned property by restrictions no longer applicable. Show the revised safety area borders precisely so that properties benefiting from a runway relocation may be properly identified.
Comments on ALUC 2010/2011 MP LUCP Appendix D entitled General Plan Consistency Checklist
1 Consistency • Request: As noted above, verify the impacted property that is and is not within the County General Plan, which appears to apply only to unincorporated areas of the county.
• Request: If impacted properties are owned by the county but within the city of Carlsbad, verify that the county will comply with the ALUC restrictions since county has said it need not abide by Carlsbad planning and zoning.
Attachment A
Transcript of Supervisor Bill Horn December 15, 2016 Board of Supervisor
Statement Documenting Conversion of Palomar to Airport for Larger Commercial Aircraft in Place of
General Aviation Recreational Aircraft
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Attachment B to Bender September, 2018 Comments on ALUC Update to
2010/2011 McClellan-Palomar Master Plan
Sept. 1, 2020 Item #5 Page 145 of 194
County Consultant SCS Engineers Report Entitled Evaluation of Possible Environmental Impacts of An Aircraft Crash
Into the Landfill Cover at Palomar Airport Landfill Bender Comment: We provide the title page and relevant SCS report excerpts. The title page follows the excerpts for technical computer insert reasons. We are of course aware that the ALUC focuses on land outside Palomar Airport. We provide the report because it well describes the environmental risks of a large fuel laden aircraft crashing anywhere. Hence, it is relevant to the ALUC’s
designation of Safety Zones outside the Airport.
Identification of Palomar Aircraft Crash Hazards
Spillage of flammable liquids such as Jet fuel: “These fuels are highly combustible, burn at extremely high temperatures, can be corrosive to aircraft equipment and are highly toxic to human beings … Ignition of the jet fuel or
other flammable material, upon impact, could also be highly probable.” [p. 3]
Burning of solids. “Post-crash fires can result in burning of … aircraft batteries and electrical equipment, engines, tires, wheels, pathogenic substances, radioactive materials, and metals such as aluminum and fiber-reinforced polymer composites of the aircraft fuselage and wings. … If the crash occurs during the dry season, grass fire could ignite and
spread to other areas of the site and create secondary environmental issues such as smoke (air quality issues), as well as
possible offsite wildfires and or burn, smoke and or structural damage to other onsite or offsite property.” P. 3]
Spillage of cryogenic liquid. “Cryogenic liquids … are used as cooling agents to reduce engine temperatures … . These liquids are … on the Hazardous Materials Information System. Hence, even low quantities of cryogenic liquids
can expand into large volumes of gases … . If not stored in containers with adequate pressure-relief devices, enormous
pressures can build up within the containers. The impact from an aircraft rash can cause a sudden rapid increase in the internal pressure of the container. Results can range from damage to surrounding equipment, structures, explosions, called ‘boiling liquid expanding vapor explosion,’ to asphyxiation hazards.” [p. 4]
Pressurized liquid and/or vapor release. “Aircraft utilize a variety [of] hydraulic and pneumatic accumulators, which
contain pressurized air or fluids that assist in the operation of equipment … . [R]upture can] lead to sudden discharge
of large amounts of pressurized fluids, resulting in destruction of property, and possibly injury to persons in proximity to the rupture.“ [p. 4]
Sept. 1, 2020 Item #5 Page 146 of 194
Pipe rupture. “Impact from an aircraft crash may result in extensive damage to nearby above/below-grade utility lines.
Damage or rupture of a buried water, gas or storm drain line, could contaminate nearby soils and water bodies. Emission release from pipes could severely compromise the air quality and even cause explosions, depending on the contents of the carrier pipes. Impact to piping associated with the GCCS [methane gas collection and control system]
may damage the system and cause a release of LFG to the atmosphere. If the LFG concentration is within flammable
ranges and an ignition soured is present, explosions or fires may occur. …” [p. 4]
Sept. 1, 2020 Item #5 Page 147 of 194
Sept. 1, 2020 Item #5 Page 148 of 194
EXHIBIT 6
Sept. 1, 2020 Item #5 Page 149 of 194
Sept. 1, 2020 Item #5 Page 150 of 194
Sept. 1, 2020 Item #5 Page 151 of 194
EXHIBIT 7
Sept. 1, 2020 Item #5 Page 152 of 194
May 20, 2020
Mr. Corey Funk
City of Carlsbad
1635 Faraday Avenue
Carlsbad, California 92008
Re: Airport Land Use Commission Consistency Determination – Amendments to Zoning
Code for Affordable Housing Density Bonus Regulations, City of Carlsbad
Dear Mr. Funk:
As the Airport Land Use Commission (ALUC) for San Diego County, the San Diego County
Regional Airport Authority (SDCRAA) acknowledges receipt of an application for a
determination of consistency for the project described above. Areas covered by this project
lie within the Airport Influence Area (AIA) for the McClellan-Palomar Airport - Airport Land
Use Compatibility Plan (ALUCP).
ALUC staff has reviewed your application and accompanying materials and has determined
that it meets our requirements for completeness. In accordance with SDCRAA Policy 8.30
and applicable provisions of the State Aeronautics Act (Cal. Pub. Util. Code §21670-21679.5),
ALUC staff has determined that the proposed project is consistent with the ALUCP based
upon the facts and findings summarized below:
(1) The project proposes amendments to the City of Carlsbad Zoning Code in order to align
density bonus regulations with State law and offer additional local incentives to expand
the production of affordable housing units. None of the amendments include any
physical improvements.
(2) The proposed project does not involve any actual development and thus does not impact
any noise exposure contours of any ALUCP, but any development permitted under this
project would be subject to respective sound attenuation or avigation easement
requirements as per the ALUCP.
(3) The proposed project does not involve any actual development and thus does not impact
any airspace protection surfaces of any ALUCP, but any development permitted under
this project would be subject to notify the Federal Aviation Administration (FAA) if
required and comply with any conditions of FAA determinations of no hazard to air
navigation.
(4) The proposed project does not involve any actual development and thus does not impact
any safety zones of any ALUCP, but any development permitted under this project
would be subject to the applicable safety zone density limits of the ALUCP, including
EXHIBIT 8
Sept. 1, 2020 Item #5 Page 153 of 194
counting any residential units permitted as density bonuses as dwelling units for
purposes of ALUCP safety compatibility.
(5) The proposed project does not involve any actual development and thus does not impact
any overflight notification requirements of any ALUCP, but any development permitted
under this project would be subject to applicable ALUCP overflight notification
requirements.
(6) Therefore, the proposed project is compatible with the adopted McClellan-Palomar
Airport ALUCP.
(7) This determination of consistency is not a “project” as defined by the California
Environmental Quality Act (CEQA), Cal. Pub. Res. Code §21065, and is not a
“development” as defined by the California Coastal Act, Cal. Pub. Res. Code §30106.
This determination will be reported to the ALUC at its public meeting on June 4, 2020.
Please contact Garret Hollarn at (619) 400-2788 if you have any questions regarding this
letter.
Yours truly,
Ralph Redman
Manager, Airport Planning
cc: Brendan Reed, SDCRAA Planning & Environmental Affairs
Amy Gonzalez, SDCRAA General Counsel
Sept. 1, 2020 Item #5 Page 154 of 194
Comment letter
Attached to this cover sheet is a letter to Airport Land Use Commission of San Diego County dated June
1, 2020 from Citizens for a Friendly Airport requesting a continuance of the determination of
consistency for the proposed amendments, and the city staff response to the letter dated June 4, 2020.
Exhibit 9
Sept. 1, 2020 Item #5 Page 155 of 194
From: Corey Funk <Corey.Funk@carlsbadca.gov>
Sent: Thursday, June 4, 2020 8:37 AM
To: Redman Ralph <rredman@san.org>
Cc: Don Neu <Don.Neu@carlsbadca.gov>; Jennifer Jesser <Jennifer.Jesser@carlsbadca.gov>; Ronald
Kemp <Ronald.Kemp@carlsbadca.gov>
Subject: Re: Application for ALUC consistency determination - ADU Amendments 2020
To: ALUC for San Diego County
Regarding the letter dated June 1, 2020 from Citizens for a Friendly Airport, which requested a
continuance of the ALUC Determination of Consistency for Carlsbad’s proposed Density Bonus
Amendments, the city would like to submit the following comments for the ALUC’s consideration:
California Government Code Section 65915(a) requires city’s and counties to adopt density bonus
regulations in compliance with state law:
§65915(a)
“All cities…shall adopt an ordinance that specifies how compliance with this section will be
implemented. Failure to adopt an ordinance shall not relieve a city…from complying with this
section.”
Assembly Bill 1763 amending Government Code 65915 was signed into law in 2019 and became
effective on Jan. 1, 2020. Carlsbad’s density bonus regulations need to be amended to be consistent
with the changes made by Assembly Bill 1763. Carlsbad’s proposed Density Bonus Amendments would
bring the city’s density bonus regulations into compliance with state law.
No physical development is proposed by Carlsbad’s proposed Density Bonus Amendment, which is solely
comprised of amendments to Chapter 21.86 of Carlsbad’s Zoning Ordinance.
Future development proposals that include a density bonus would be evaluated on a case by case basis
and subject to review and compliance with the McClellan-Palomar Airport ALUCP, as required by
Carlsbad General Plan Policy 2-P.37.
The city concurs with the determination of consistency made by Ralph Redman, Manager of Airport
Planning on May 20, 2020 for Carlsbad’s proposed Density Bonus Amendments.
Sincerely,
Corey Funk, AICP
Associate Planner
Planning Division
Community Development Department
City of Carlsbad
Sept. 1, 2020 Item #5 Page 156 of 194
1635 Faraday Avenue
Carlsbad, CA 92008
www.carlsbadca.gov
760-602-4645 | corey.funk@carlsbadca.gov
Sept. 1, 2020 Item #5 Page 157 of 194
June 4, 2020
ALUC Meeting
ITEM 2 -
COMMUNICATION
RECEIVED FROM
THE PUBLIC
Sept. 1, 2020 Item #5 Page 158 of 194
1
June 1, 2020
Citizens for a Friendly Airport
7040 Avenida Encinitas, Suite 104-467
Carlsbad, CA 92011
San Diego Regional Airport Authority Mailing Address
Airport Land Use Commission SDCRAA
SDCRAA Administration Building P.O. Box 82776
3225 No. Harbor Drive San Diego, CA 92138-2776
San Diego, California 92101
c/o and Requested Distribution to Addressees Prior to Thursday June 4, 2020 meeting by Tony R.
Russell, CRM, MMC. [clerk@san.org and SDCRAA General Phone: 619 400-2400]
Director | Board Services/Authority Clerk
Members: C. April Boiling (Chairperson), Catherine Blakespear, Greg Cox, Mark Kersey, Robert T.
Lloyd, Paul McNamara, Paul Robinson, Johanna S. Schiavoni, Mark B. West and Ex-Officio Board
Members: Gustavo Dallarda, Col. Charles B. Dockery, Gayle Miller AND President/CEO Kimberly J.
Becker
SDRAA Legal Counsel: Amy Gonzalez. [Amy.Gonzalez@san.org]
VIA: Attn: Ms. Diane Casey (Assistant to CEO Kimberly J. Becker [DCasey@san.org])
State of California City of Carlsbad
Department of Transportation 1200 Carlsbad Village Dr.
Division of Aeronautics Carlsbad, CA 92008
P.O. Box 942873 FOR: City Council, City Manager, City Attorney
Sacramento, CA 94273-0001 c/o Carlsbad City Clerk
[General Info Phone: 916 654-2852] Clerk@carlsbadca.gov
Attn: Amy Choi [CT Org Chart hard to read]
c/o Cal Trans Director [See May 2020 CT org chart]
Sept. 1, 2020 Item #5 Page 159 of 194
2
Re: (1) Request for Continuance of ALUC Proposed Consistency Determination Scheduled for
June 4, 2020 as ALUC Agenda Item 2 Re: Consistency of Carlsbad Zoning Density with
2010/2011 Palomar Airport Land Use Compatibility Plan; and
(2) Request for ALUC Expedited Processing of an Update to 2010/2011 McClellan-Palomar
Airport Land Use Compatibility Plan as a Result of County 2018 – 2038 Palomar Airport
Master Plan and PUC and State Aeronautics Manual Requirements
Ladies and Gentlemen:
On Friday May 29, 2020, Citizens for a Friendly Airport (C4FA) received SDCRAA ALUC notice of the
ALUC’s intent to act on ALUC Agenda Item 2 on June 4, 2020.
By ALUC Agenda Item 2, Carlsbad requests that the ALUC find that the Carlsbad zoning changes related
to Carlsbad high density development are consistent with the development and operation of McClellan-
Airport, a County of San Diego owned and operated airport. C4FA clearly disagrees with Carlsbad.
The Airport, though within Carlsbad, is surrounded by developable land in the cities of Carlsbad, Vista,
and unincorporated areas of the County of San Diego.
C4FA requests a continuance m until ALUC staff has prepared a report to the ALUC members analyzing
the points below and until ALUC has given the public more time to review this matter.
Alternatively, if the ALUC proceeds with this item, we request that the ALUC deny a finding of
consistency. The ALUC would not have enough data to determine whether the ALUC is complying with
(1) the California Public Utilities Code (PUC) and (2) the State of California Aeronautics Manual, which
State law requires ALUCs to follow, and (3) an UPDATED Palomar Airport LUCP.
Because Covid ALUC hearing restrictions make communicating orally with the ALUC and Carlsbad difficult,
we request that this letter be read into the record at the ALUC June 4, 2020 meeting and all related meetings of
the Carlsbad City Council. Only in this way, can we be assured that (1) our concerns have been recognized by
ALUC members and (2) that members of the public who are able to watch a broadcast of the ALUC meeting
are apprised of the specific C4FA concerns. Because this C4FA letter is from a group of citizens, we request
the ALUC allow more than the ALUC-allotted 3 minutes to read the letter into the record.
The 2010/2011 McClellan-Palomar Airport LUCP is out of date for four reasons.
1. The ALUC Failed to Update the Palomar Airport LUCP by 2016 and Failed to Conform to the
State Aeronautics Manual. As C4FA pointed out in great detail in its September 2018 twenty-
nine page letter to the ALUC, the Palomar Airport 2010/2011 LUCP was out of date long before
County adopted its October, 2018 new Palomar Airport Master Plan (PMP) to convert Palomar
Airport from an FAA rated B-II airport to an FAA D-III airport. For purposes of the
Administrative Record, we incorporate the C4FA September 2018 letter by reference.
According to the California Department of Aeronautics Manual, LUCPs should be updated every
5 years. Palomar Airport was due for an update in 2016 – especially since it appears that the
SDCRAA ALUC 2011 update was made shortly after the ALUC assumed responsibility under
State law from SANDAG. In other words, the newly created Authority and ALUC had little
experience in preparing LUCPs at that time. Consequently, it overlooked various issues as
C4FA pointed out in its 2018 letter.
Sept. 1, 2020 Item #5 Page 160 of 194
3
2. The ALUC Failed to Review the County 2018 Palomar Airport Master Plan (PMP) Prior to the
Time the County Board of Supervisors Acted on its 2020 PMP and Related PMP EIR.
The county and the SDRAA ALUC are denying the public a reasonable opportunity to comment
on the consistency of proposed zoning changes by cities around Palomar Airport with a
CURRENT Palomar Airport LUCP. Just a few facts supporting that conclusion include the
following:
§ The ALUC is not a Neutral Arbiter of Consistency Issues. In 2010, the ALUC’s
“parent,” the full SDCRAA adopted a Regional Strategic Airport Plan (RASP).
The RASP lists many ways in which county airports, including specifically
Palomar Airport, can expand. While we recognize that the SDCRAA is in the
business of promoting airports, the SDCRAA has a PUC statutory duty to act
impartially. Having adopted a RASP promoting airport expansions, the
SDCRAA should not be undertaking ALUC actions that give the public only the
barest notice related to an out-of-date Palomar Airport LUCP.
§ The ALUC Failure to Review the County 2018 PMP Prior to Board of
Supervisor PMP Action Denied County and the Public 1/8 of the Information
that County’s PMP Promised to Provide the Public. When circulated, the
County’s PMP and PMP EIR expressly promised the public and reviewing
public agencies that County would analyze 8 distinct issues.
One specifically listed issue was the impact of the Palomar Airport D-III
conversion and construction of $100,000,000 plus of Palomar Airport runway
extensions and runway relocation improvements on the noise and safety of
surrounding communities.
The PUC expressly delegates to ALUCs the duty to prepare Land Use
Compatibility Plans so that private and public owners near an airport know if
development of their lands will be restricted by noise and safety zones.
Because the ALUC failed to timely act, the County PMP and PMP EIR provide
no specific information as to how County Palomar Airport expansion affects
development of land parcels outside the airport that will be restricted.1
§ We understand that the PUC and/or State Aeronautics Manual require an airport
owner and operator to submit proposed airport changes to the ALUC prior to the
time the owner/operator adopts its plan. That requirement suggests that the Cal
Trans Division of Aeronautics expected airport owners and operators to receive
1 County and Carlsbad often say Palomar Airport improvements will again be reviewed in the future and hence the
2018 County PMP does not by itself impact safety and the environment. That argument fails for two reasons.
First, no one will ever know whether the Supervisors would have adopted the 2018 PMP in the format proposed –
which governs Palomar Airport development for 20 years – if the noise and safety impacts on surrounding
property owners were known. Those impacts could only be known if the ALUC had timely acted to update the
Palomar Airport LUCP. Secondly, the County and Carlsbad argument that the 2028 PMP does not trigger impacts
until Palomar Airport physically expands conflicts with an ongoing County and Carlsbad argument. They say that
the county cannot limit the size and speed of aircraft using Palomar Airport. Since at least 1990 County has been
attracting FAA-rated C and D larger, faster, more fuel-laden airport to Palomar. The Palomar Airport runway does
not meet FAA Design Manual requirements for such aircraft. Hence, the existing ALUC LUCP is out of date.
Sept. 1, 2020 Item #5 Page 161 of 194
4
ALUC input before adopting proposed plans. However, county submitted its
2018 PMP to the ALUC only about two weeks before county’s Board of
Supervisor PMP adoption. We are not aware of any substantive comments that
the ALUC has provided to county regarding an updated LUCP as of May 2020.
3. The ALUC has Failed to Timely Update the ALUC 2010/2011 Palomar Airport LUCP. Almost
two years have passed since C4FA’s September 2018 letter to the ALUC noting Palomar Airport
LUCP deficiencies and since the Board of Supervisor’s October 2018 adoption of its 20-year
Palomar Airport Master Plan. And, we understand that the county’s proposed 2018 PMP was
available to ALUC staff in draft in 2017. Having ignored 3 years of lead time, the ALUC cannot
claim in good faith that it is maintaining a CURRENT LUCP that fairly apprises property owners
near Palomar Airport of the noise and safety ALUC zone restrictions on their property. In the
meantime, many property sales could be occurring substantially affecting buyers and sellers.
The City of Carlsbad, the County of San Diego, and the ALUC are well aware of the problems
that lack of ALUC transparency has caused to private property owners surrounding Palomar
Airport. We understand that several land parcels just west of Palomar Airport resulted in several
proceedings and lawsuits against Carlsbad, the County, and the ALUC from 2014 to 2020.
In a lawsuit concerning 5817 Dryden Place, Carlsbad, CA, the plaintiffs alleged that as a result of
the ALUC restrictions, which essentially converted the property from first class office space to a
warehouse with very limited occupancy, their property had been unfairly taken and/or restricted.
We understand that County bought the Dryden Place property for approximately $6,000,000 to
resolve this most recent lawsuit.
IF the ALUC had given proper notices to property owners around Palomar Airport when the
property was first restricted, the City of Carlsbad, the County, and the ALUC would have avoided
hundreds of hours of effort, hundreds of thousands of dollars in attorney fees, and likely a County
purchase price substantially below the $6,000,000.
4. Lastly, the ALUC Fails to Provide Adequate Notice to Property Owners Surrounding Airports
Who May be Impacted by ALUC Property Noise, Safety, and Occupancy Restrictions. Federal
and State Constitutional Due Process Requires More than a Brown Act Blanket Notice of ALUC
Agenda Items given to the community generally. The ongoing ALUC inadequate processes have
caused prejudice to private property owners surrounding Palomar Airport as noted in the
Dryden Place example above.
For the above reasons, C4FA requests the ALUC continue its consistency review until ALUC staff may
prepare a staff report for ALUC members as outlined in this letter or deny the finding of consistency as
noted initially in this letter. Please especially note that a June 4, 2020 ALUC consistency determination
would automatically fail to comply with county’s current Palomar Airport Master Plan, which the county
adopted in 2018 and for which the ALUC has failed to designate noise and safety zones.
Thank you for your review and consideration of this letter.
C4FA by Hope Nelson. [Signing authority for HN given to Ray Bender]
ATTACHMENT: C4FA September 19, 2018 letter noted in text above.
Cc: Cory Briggs, Attorney for C4FA in pending actions with Carlsbad and County.
2020 5 SDCRAA ALUC Palomar Consistency Letter Final Final Final
Sept. 1, 2020 Item #5 Page 162 of 194
September 19, 2018
Citizens for a Friendly Airport 7040 Avenida Encinitas, Suite 104-467 Carlsbad, CA 90211
San Diego Regional Airport Authority Airport Land Use Commission SDCRAA Administration Building 3225 No. Harbor Drive San Diego, California 92101
Members: C. April Boiling, Greg Cox, Jim Desmond, Mark Kersey, Robert T. Lloyd, Paul Robinson, Johanna S. Schiavoni, Michael Schumacher, Mark B. West and Ex-Officio Board Members: Tim Gubbins, Jacqueline Wong-Hernandez, , Col. Jason Woodworth President/CEO Kimberly J. Becker SDRAA Legal Counsel: Amy Gonzalez VIA: Attn: Ms. Diane Casey (Assistant to CEO Kimberly J. Becker [DCasey@san.org]) [Note: Email name and address we were given when
calling SDRAA today Wednesday, September 19.) Re: ALUC Processing of Update to 2010/2011 McClellan-Palomar Airport Land Use Compatibility Plan As a Result of County 2018 – 2038 Palomar Master Plan
Sept. 1, 2020 Item #5 Page 163 of 194
Ladies & Gentlemen: We understand that the County of San Diego Board of Supervisors will likely approve its twenty-year McClellan-Palomar Airport
Master Plan and certify its Programmatic EIR on October 10, 2018. We also understand that the SD ALUC will be updating the 2010/2011 MP Land Use Compatibility Plan to comply with state requirements.1 The C4fa-detailed-comments follow in the table below. Please assure that these comments are considered by ALUC staff and the ALUC members when preparing the update.
But a few new comments are appropriate in light of county comments in the last week. When preparing its MP LUCP update, the ALUC needs to look at the actual Palomar Master Plan (PMP) projects county proposes – as opposed to the labels that county is trying to give its PMP in its last minute effort to overcome public comments on its PMP and
Draft PEIR. Here is why.
• Palomar Critical Design Aircraft. County’s PMP concedes that more than 500 annual C and D operations have occurred at Palomar annually over the last 15 years. In fact, the number exceeds 10,000 annually in most years. The FAA requires the
Airport Reference Code (ARC) to conform to the actual critical design aircraft. Yet county’s recent papers suggests it may
“maintain” Palomar as a B-II airport.
• Runway Safety Area. County has said in its PMP that it will ultimately place an EMAS [350-foot Engineered Materials Arresting System] at each runway end. However, county’s PMP says it won’t install the east end EMAS for at least 13 years.
These facts make it apparent why county may want to continue to say Palomar is a B-II airport when the proper FAA critical aircraft design ARC designation is C. An FAA C designation requires 1000-foot runway safety areas (RSAs) at each end of the Palomar paved runway. Or an FAA-approved EMAS. Count’s clear desire – even with an initial 200-foot runway extension – is to operate without an east end EMAS. As a result an aircraft taking off toward the east and overshooting the runway travels into the Palomar Unit 3 19 acre runway east end landfill, which has a methane gas collection system beginning
about 4 feet below the sandy surface.
• PMP Wingspan Separation. Quite clearly what county is trying to claim is that it is maintaining a B-II airport to sooth public objections but build projects to meet FAA ARC D requirements. The best example of this is county’s plan to increase the
1 The CalTrans State Aeronautics Handbook, which State law requires the ALUC to follow, recommends an update at least every 5 years. So the MP LUCP update was due several years ago, especially in light of the very substantial development of the vacant land around Palomar Airport and within 2 miles of it.
Sept. 1, 2020 Item #5 Page 164 of 194
distance between the Palomar taxiway centerline and runway centerline so that larger C and D aircraft with wider wingspans can concurrently operate.
• Runway Width. The FAA requirement for runway width of a B airport is 75 feet to 100 feet. Yet county now has a 150-foot runway and will relocate the runway with a similar width. Thank you for considering the C4fa comments. Please confirm your receipt of this email and the distribution of the comments to Raymond Bender at benderbocan@aol.com and 760 752-1716. We also request (1) actual notice of all meetings at which the ALUC will consider the MP LUCP Update and (ii) copies of all materials that ALUC provides ALUC members at least two
weeks before the meeting at which the ALUC considers an MP LUCP update so that C4fa members have a fair opportunity to review the issues. That process will allow better C4fa input at the upcoming ALUC meeting considering the MP LUCP Update. We also request that the ALUC determine and provide actual notice to the property owners surrounding Palomar Airport that may be impacted by Updated ALUC MP LUCP noise and safety maps. As mentioned in the table below, we understand that some owners whose property was impacted by the 2010/2011 ALUC MP LUCP Update did not timely receive actual noise and were substantially adversely affected. PLEASE ESPECIALLY NOTE THAT THE BELOW TABLE CONTAINS SEVERAL SCREEN SHOTS WHICH MAY TAKE A MINUTE TO APPEAR ON THE COMPUTER SCREEN. PLEASE ASSURE THE SCREEN SHOTS ARE PRESENT BEFORE REPRODUCING COPIES FOR THE INTENDED RECIPIENTS.
Comments of Citizens for A Friendly Airport (C4FA.org) on ALUC Update of 2010/2011 McClellan-Palomar Land Use Compatibility Plan as a Result of County’s New Twenty Year Palomar Master Plan
Preliminary Comments:
• C4fa. Citizens for a Friendly Airport is a citizens group, whose members have provided comments to County and Carlsbad on (i) the March 2018 County PMP Programmatic EIR (PEIR); and (ii) the June 2018 County re circulated portions of the PEIR.2 C4fa maintains a website at C4fa to inform the public about the impacts of county’s proposed Palomar Master Plan
projects.
2 After receiving comments from the city of Carlsbad’s nationally recognized aviation law firm (Kaplan, Kirsch, and Rockwell) and the public, county in June 2018 requested further PEIR comments on biological, greenhouse gas (GHG), energy consumption, and Runway Protection Zone (RPZ) issues. By August 6, 2018 Carlsbad and the public again commented noting major deficiencies in the county PEIR assumptions, facts, methodologies, and analyses.
Sept. 1, 2020 Item #5 Page 165 of 194
• C4fa McClellan- Palomar Land Use Compatibility Plan [LUCP] Concerns. o Based on reviewing the process previously followed by the SDRAA ALUC, Carlsbad residents are concerned that
the ALUC process does not sufficiently analyze or inform the public of ALUC restrictions on lands near the airport.
o For instance, at a Carlsbad Council meeting earlier this year, two businessmen appeared before the Council and noted (i) ALUC restrictions have caused them to lose more than $1 million, essentially converting a first class office building, to use for limited storage and (ii) they became aware of ALUC LUCP restrictions incidentally, not by ALUC actual notice. o The ALUC should assure that new ALUC restrictions resulting from the county 2018 PMP and/or Airport Layout
Plan (ALP) are properly adopted with actual notice to the property owners who may be impacted so they can timely provide their input to the ALUC.
• C4fa Public Input. C4fa members have appeared before the Carlsbad City Council five times since February 2018 to
provide the council information related to county’s PMP and PEIR and also attended PMP workshops. County operates MP
pursuant to Carlsbad CUP 172, which county says in its current PMP and PEIR, that county need not comply with.
• Savecarlsbad.com For the last two years, one C4fa member (Graham Thorley) has maintained the website www.savecarlsbad.com to inform the public of Palomar-related issues.
• Carlsbadpatch.com & San Diego Free Press Palomar Info. For the last four years, one C4fa member (Ray Bender) has posted more than 200 articles on Carlsbadpatch.com related to Palomar developments and had seven articles published in
the San Diego Free Press related to Palomar issues.
• The 3 PMP Projects. The county 2018 PMP proposes three basic Palomar Airport expansion projects: o D-III Conversion: Converting Palomar from an FAA-rated B-II airport to a D-III airport to handle a higher
percentage of corporate jets and passengers by regularly scheduled air carriers. County forecasts a future passenger level of 304,000 to 575,000 depending on marketing success. In December 2016, Supervisor Horn stated it was
Sept. 1, 2020 Item #5 Page 166 of 194
time for Palomar to replace the GA aircraft with the larger, faster commercial aircraft. Attachment A to these
comments provides a transcript of Mr. Horn’s comments, which advise small aircraft to move to other airports.3
o 200-foot Runway Extension & West End EMAS & East End RSA (Near Term).
o Runway Relocation north about 100 feet, and a total either 800-foot extension or 900-foot extension from 4900 feet to 5700 or 5800 feet, and EMAS at both west and east ends (Longer Term). County’s PMP and PEIR
conceal the 900-foot extension (rather than 800-foot extension) in the following way.
At the December 15, 2016 BOS meeting, four of the five BOS members accepted the SD consultant Kimley-Horn recommendation for an uop to 800-foot extension. Supervisor Horn did not he pressed the consultant to come up with an extra 100-feet.
On the surface, the 2018 PMP projects refer to an up to 800-foot extension. However, Kimley-Horn as
directed by Supervisor Horn suggested a massive west runway end retaining wall costing about $12 million in order to create additional land.
County in the past, without any fanfare or notice to the SDCRAA ALUC increased the Palomar runway from 4700-feet to the current 4900-feet.
In other words, quite clearly what the BOS intends to do is approve an unneeded west end $12 million retaining wall so that county at some time in the future with a CEQA negative declaration can add 100
feet to its then 800 cumulative extension.
CONCLUSION: The ALUC needs to pin the county down or simply analyze a 900-foot runway extension rather than an 800-foot runway extension.
o D-III Conclusion:
o Although county in the last week has suggested it might label Palomar as a B-II airport, its PMP makes clear that it is undertaking improvements for a D-III airport. The PMP improvements documenting that include D-III sized runway lengths and widths; installing 350-foot EMASs [eventually) in lieu of 1,000 foot RSAs to meet D-III FAA RSA requirements; building a $12 million runway west end massive retaining wall, which is not needed for an 800-foot runway extension but is needed for a 900-foot runway extension; and installing
$8.6 million of navigational aids. As noted initially above, judge county not by its labels but by the actual improvements it intends and passenger levels it forecasts, which determine the size of the ALUC-designated noise and safety areas.
3 As the SDCRAA recognized when it prepared its 2010 Regional Airport Strategic Plan (RASP), the SDCRAA can divert aircraft from Lindbergh Field by changing rate structures that discourage Lindbergh Field use and encourage aircraft to Palomar. This is just one example of how increased FAA-rated C and D aircraft using Palomar will displace the smaller general aviation aircraft.
Sept. 1, 2020 Item #5 Page 167 of 194
• Specific McClellan-Palomar Land Use Compatibility Plan Issues. C4fa members have reviewed the 2010/2011 McClellan-Palomar LUCP. Based on that review, we request that ALUC staff discuss the below issues in its report and recommendation to the ALUC members when considering how to update the 2010/2011 MP LUCP.
• Table Part A below discusses specific ALUC compatibility issues that the county PMP project elements raise. Table Part B below indicates why various sections in the ALUC 2010/2011 MP LUCP require updating.
PART
LUCP Issues raised by the County 2018 PMP Project Elements
Preliminary Note:
The SDCRAA ALUC airport Land Use Compatibility Plan (LUCP) process follows the guidance set forth in the CalTrans Division of Aeronautics “California Land Use Planning Handbook.” In § 2.4.2 entitled ALUCP Amendments at page 2-9, the Handbook states: “A comprehensive review and update is recommended at least every five years. The ALUC last updated the McClellan-Palomar LUCP in 2010/2011, about 7 years ago.
As noted below, in the last 12 months alone, Carlsbad has authorized construction projects within 3 miles of the airport totaling more than 1,000,000 square feet. Accordingly the ALUC should be starting a “comprehensive” MP LUCP review even before county submits its proposed $110,000,000 Twenty-Year Palomar Master Plan project expansion.
Also, note that when the ALUC last updated the MP LUCP, the ALUC used the Cal Trans 2002 Handbook edition. [See § 1.2 at page
1-4 of 2010/2011 MP LUCP.] In short, a new ALUC analysis redefining airport-related noise and safety zones needs to take into account (i) considerable Carlsbad development near the airport, (ii) the latest requirements of the 2011 Cal Trans Handbook, and (iii) county’s desire to both extend its runway 800-feet over a methane emitting landfill and to relocate the runway and convert Palomar from an FAA-rated B-II airport to
an FAA-rated D-III airport.
# Issue Old v. New and/or Requested ALUC Analysis & Points to be Considered
Sept. 1, 2020 Item #5 Page 168 of 194
Clarifications
1 Runway Size Phase 1: 4900-feet to 5100
[EXISTING Runway location]
• Advise how the 5 existing noise areas and 5 existing safety areas will change
• Points to consider include:
o Post 2010 Carlsbad Development. Carlsbad has permitted many hotels and developments just south of Palomar Airport Road (PAR) within 2 miles of MP since the 2011 LUCP;
o D.R. Horton Runway Approach Development. As these comments are written, D.R. Horton is building many new townhouses directly within the Palomar east approach path;
o 20-Fold Forecasted Increase in Passenger Traffic. County forecasts air carrier annual passenger increases from less than 15,000 today to between 304,000 and 575,000 in its twenty-year plan4. o Displacement of GA Aircraft and Upward Swing in FAA-Rated C and D Aircraft. Supervisor Horn at a Board of Supervisor meeting set a goal of displacing
general aviation aircraft in favor of commercial aircraft. [See our Table Attachment A, Horn 12/15/16 Transcript.]
When FAA-rated A and B aircraft crash, they carry comparatively few people and comparatively little fuel. When FAA-rated C and D aircraft crash, they typically carry far more people and fuel and crash at faster speeds. The table below provides a rough listing of fuel and passenger loads. In the last four years, Palomar has handled
few air carriers and very light passenger loads. Most B and C aircraft operations
were corporate with the aircraft carrying 2 to 8 people. As the table shows, as aircraft size, speed, and fuel carriage increases, the aircraft in a crash is a bigger bomb capable of causing great damage. The many manufactured housing units about 2 miles east of the Palomar Airport runway would easily be destroyed by a large
4 As the current MP LUCP notes (See C-5 of Appendix C) ALUC-designated safety zones take into account harm to aircraft occupants as well as safety on the
ground.
Sept. 1, 2020 Item #5 Page 169 of 194
aircraft crashing into the mobile home park.
REQUEST: When calculating its new MP LUCP safety areas, the ALUC should include its own Risk Safety Table showing how converting Palomar from a B-II airport to a D-III airport or D-III airport and changing the aircraft mix will increase safety concerns. How will the size of the impact areas and dispersion areas change with D-III aircraft v. A or B aircraft?
Comparative Risks: A v. B v. C v. D Aircraft
Size Max Take Off
Weight
Max Approach Speed (knots)
Max
People at
Risk on Aircraft
Max Fuel
Load
(lbs.) and (gal)
A 2,750 pounds 91 2 432 (72 gal) B ? 121 30
C ? 141 60 ?
D 91,000
pounds
166 110 41,300
(6,883 gal)
2 Runway
Size
Phase 2: 100-
foot North
Relocation and
Rebuild: 4900-feet to 5700 feet5
• Advise how the 5 noise and 5 safety areas will change again when county both shifts its
runway north and extends the runway 800 feet in total.
• Points to Consider – in addition to those in Item 1 above – discuss the issues below. o Added Threats to ECR Traffic. With the existing 4900-foot runway, landing
aircraft touch down about 1200 feet from ECR. With a 5700-foot runway, landing aircraft will touch town about 400 feet from ECT. At an approach speed of 166
5 We are aware that the 2010/2011 MP LUCP refers to the ALUC analyzing runways in the range of 4,000 to 6,000 feet in length. However that analysis
involved a B-II airport serving 90% small GA aircraft with comparatively few passengers. As noted in the table above, a Palomar Airport handling
predominantly B, C, and D aircraft and hundreds of thousands more passengers raises entirely different safety considerations.
Sept. 1, 2020 Item #5 Page 170 of 194
knots, the aircraft travels about 280 feet per second. So an 800-foot extended runway
will place 100,000 pound landing aircraft about 1.5 seconds from ECR traffic. It appears that landing aircraft would be about 100 feet above ECR car and truck rooftops. When updating the MP LUCP, please provide the accurate data to replace our estimated data and assess the increased risk.
o Added Threats to Areas North of Relocated Runway & Taxiway. Relocating the runway north removes north Palomar Airport aircraft parking. That movement combined with faster, larger aircraft increases the chance of an errant aircraft sliding into private property north of the runway. Assess this risk.
o Changes in Risks Resulting from EMAS Installs. Palomar now has no Engineered Material Arresting Systems (EMASs). County plans to install two EMASs, one at each relocated runway end (with the east end EMAS delayed about 15 years.) EMASs are meant to control rolling aircraft (at the end of takeoff or end of landing)
traveling no more than about 70 knots). However, an EMAS install requires the
county to designate a “buffer” area between the interior EMAS and runway-landing threshold. In short, the landing runway threshold will be displaced to assure landing aircraft touching down at 121 to 166 knots do not enter the EMAS closest to landing. Accordingly, the threshold displacement alters the approach RPZ area. In the updated MP LUCP, distinguish the approach and departure RPZs and explain how
county PMP project changes affect their designation.
• REQUEST: In the updated MP LUCP, address the issues discussed above.
3 County-Desig-
nated
RPZ Areas
County’s June 21, 2018 Re-
circulated PEIR
RPZ Areas
• County’s June 21, 2018 Re-circulated PEIR parts includes redrawn RPZs for various
Palomar Airport alternatives. For the many reasons set forth in our August 2018 comments,
to the county PEIR re-circulation, the county-depicted RPZs are incomplete and often misdrawn. See the Bender comment Items 31 – 43 at pages 51 – 75 of the Comments on the County Re-circulated PEIR portions. We mailed hard copies of our comments to the ALUC during the week of August 6. The ALUC also has our binder comments from March 2018,
which describe in detail why county’s PMP and PEIR fail to comply with Government Code Planning and Zoning requirements, which we understand the ALUC needs to review to find that the County General Plan is consistent with the ALUC Updated 2018 MP LUCP.
Sept. 1, 2020 Item #5 Page 171 of 194
• Rather than repeat all of our PMP PEIR RPZ comments, we incorporate them by reference. In sum:
o County is incorrect when it suggests that future RPZ areas will be smaller than
current RPZ areas. The increased airport mix of faster, larger aircraft will enlarge the areas. If the ALUC disagrees, please explain in your updated MP LUCP. o In preparing the RPZ areas, county has failed to properly account for EMAS installations and EMAS/runway buffer areas. o County has failed to provide drawings actually showing the property owners
impacted by new RPZs.
• REQUEST: In the updated MP LUCP, address the issues above.
4 Passen-ger Load
and
Larger
Aircraft
Increase from 15,000 to as
much as 575,000
• The ALUC 2010/2011 MP LUCP refers to a then existing 15,000 annual Palomar passengers with projected passengers of 35,000.6
• County’s 2018 PMP forecasts a low passenger range by 2036 of 304,0007 (county’s PAL 1) annual passengers and a high of 575,000 (county’s PAL 2).8
• REQUEST: The ALUC Updated 2018 MP LUCP needs to assess the increased passenger risk resulting from:
o Up to 15 to 20 times as many passengers being handled; and o Passengers using 100 seat aircraft rather than 30 to 50 seat aircraft, which
means crashes will occur with substantially more fuel aboard and likely at faster speeds.
PART B
Comments on Sections in the ALUC 2010/2011 MP LUCP Requiring Updating
6 See MP LUCP, Table IV-2 at page 4-13. 7 See 2018 PMP, Table 3.17 at page 3-33. 8 See 2018 PMP, page 4-2 and county based this number on an earlier ALUC RASP.
Sept. 1, 2020 Item #5 Page 172 of 194
Comments on ALUC 2010/2011 MP LUCP Chapter 1 entitled Introduction
1 § 1.1,
Overview p. 1-1
• Compati-
bility v. Consistency
• PUC References
• ALUC Terminology: Compatibility v. Consistency. Throughout the LUCP, the ALUC
uses the terms “compatibility” and “consistency.” ALUC does not well define the difference between the terms. Clarification would be helpful. o We understand “compatibility” to focus on whether local community land use
policies around Palomar are compatible with the standards established in the Cal
Trans, Division of Aeronautics, Land Use Planning Handbook and the standards that ALUC establishes. o In contrast, we understand the term “consistency” to focus on whether (i) local community-adopted General Plans are “consistent” with the ALUC-established
airport compatibility standards or (ii) inconsistent because a local entity has qualified its acceptance. .
o We especially focus on this issue as a result of a C4fa member conversation with ALUC staff last year. In that conversation, the staff member was especially sensitive to the use of these two different terms. We wish to be accurate. Precise guidance
would be helpful.
• REQUEST: If our understanding of the meaning of the two terms is incorrect, please clarify the correct use of these terms in the ALUC updated MP LUCP. If our understanding is correct, revise the MP LUCP to more clearly make the distinction. Consider supplementing the ALUC MP LUCP definitions, which occur later in § 2.2.
• MP LUCP Statutory References. The MP LUCP Appendix A reproduces various laws. It would be helpful if the MP LUCP crossed referenced Appendix A when citing the law.
§ 1.1.2 Statutory
Require-ments p. 1-2 et
• ALUC – FAA
Jurisdictional Issue
• At p. 1-3, the MP LUCP notes that the “ALUC has no jurisdiction over federal lands.” Due to the 2018 county PMP projects proposed, interesting issues arise as to how the foregoing
limitation impacts ALUC noise and safety areas for the following reasons:
o FAA Leased Lands. The ALUC needs to clarify what “federal lands” means. The
Sept. 1, 2020 Item #5 Page 173 of 194
seq
• Public Notice Issues
Related to
ALUC Adoption of MP LUCP
FAA does not own the MP northeast parcel at El Camino Real (ECR) and Palomar
Airport Road (PAR). However, the 2018 county PMP lists among the projects that will be carried out the installation of $8.6 million dollars of navigational improvements that will be necessary on the northeast parcel as a result of county extending its runway 800 feet eastward. County leases various land areas on the
northeast parcel to the FAA. Question: Are lands leased to the FAA within ALUC
jurisdiction? Are lands leased to the FAA within the city of Carlsbad land use
jurisdiction? o RPZs. If lands leased to the FAA are not within ALUC jurisdiction, how does that conclusion impact, if at all, the designation of RPZ zones and other safety zones that
the ALUC designates in its updated MP LUCP? We understand that in the past, the ALUC – when determining the five safety zones around Palomar – has included the northeast parcel as the Runway Protection Zone (RPZ)
• REQUEST: In the updated MP LUCP, explain: o Whether the ALUC does or does not have jurisdiction over lands that the county leases to the FAA for navigational aids and provide the FAA correspondence confirming the ALUC’s conclusion. o Whether and how such leased land impacts the ALUC designation of MP LUCP
noise and safety zones.
• ALUC NOTICES TO PROPERTY OWNERS.9 MP LUCP § 1.1.2 discusses laws applicable to the ALUC creating an MP LUCP but says nothing about what notices the land
owners affected by ALUC designation of noise and safety zones are entitled to. The
importance of this issue is shown by recalling recent history. o Adversely Affected Landowners. We understand that several months ago several businessmen owning land within MP LUCP land-restricted areas appeared before the
Carlsbad city council. They noted that ALUC restrictions had greatly restricted the
9 The C4fa comments are general in nature. No attempt is made to analyze legal issues. We note though that the ALUC restricting land uses around Palomar
without first giving actual notice to known property owners in a relatively restricted area seems to raise federal and state due process issues similar to those
arising in condemnation and inverse condemnation actions.
Sept. 1, 2020 Item #5 Page 174 of 194
value of their office facility, perhaps by as much as $ 1 million. They indicated they
had never been given actual notice of the restrictions. The Carlsbad Council refused to grant a variance for use of the property. o Due Process Standard. We have no idea what the ALUC position is on this issue.
Perhaps it is (i) the ALUC has no obligation to give actual notice to affected property
owners or (ii) constructive notice by publication in newspapers is adequate. C4fa has no notice of what the legal standard is. And that is precisely the point. The ALUC is undertaking regulation without fully informing those regulated what their rights are. If the ALUC is constructively taking property by regulation, property owners should be given actual notice so they can appear at the ALUC meeting at which their
property interests may be adversely affected.
• REQUEST: In §1.1.2 of the updated MP LUCP, explain what notices the ALUC will give to property owners affected by its proposed noise and safety zone designations. If the ALUC position is that no actual notices are required, explain why not. Also state
the newspapers that the ALUC does use when it publishes notices of its actions. Comments on ALUC 2010/2011 MP LUCP Chapter 2 entitled Airport Land Use Commission Policies
2 § 2.2.14
CNEL p. 2-3
• Berkeley Keep Jets Over the Bay,
111 Cal.Rptr.2d 598 SNEL
• The MP LUCP states in § 2.2.14 that CNEL is the land use metric adopted by the State of California for land use planning. State law includes both legislative and court made law. In
Berkeley Keep Jets Over the Bay, the court concluded that airport planning also required analysis of Single Noise Events (SNELs). The MP LUCP definitions in § 2.2 do not address
this issue.
• REQUEST: In its updated MP LUCP, explain how the ALUC will consider the SNEL analysis issue in its analysis now that the court has required it. In that discussion, explain how SNELs affect student learning. See for instance the August 2018 report entitled “Assessing Aircraft Noise Conditions Affecting Student Learning – Case Studies” by Arup and Partners and Cornell University and Queen Mary University. We reproduce the cover page from the report below to aid you in finding it.
Sept. 1, 2020 Item #5 Page 175 of 194
§ 2.4 Airport Impact Types,
p. 2-10
and §3.6 Over-flights at pp. 3-55 et seq
• Overflights
Recall also that the ALUC has identified its responsibility to assess the impacts of aircraft Over flights. [ See MP LUCP p. 2-11; MP LUCP §2.4.2(d)]. In MP LUCP § 3.6, the ALUC does discuss overflight policies. However, the ALUC in essence simply says that if you are a property buyer and get notice that an airport is nearby, the ALUC has satisfied its obligation because the State dictates such notice.
But telling property owners that the airport may affect their homes is entirely different from forewarning them that their children’s education may be impacted – as the noted report documents.
Sept. 1, 2020 Item #5 Page 176 of 194
• Overflights. Various MP LUCP sections, including § 2.4.1 and § 3.6, refer to aircraft overflights as one of the four ALUC concerns. In a nutshell, the ALUC says it can do little if anything about such flights. Perhaps the ALUC could improve its analysis. For instance general aviation over flights dump lead from leaded aviation fuel on houses below.10
o Overflights trigger both noise and safety concerns. Neither the FAA, nor county,
nor ALUC describe what over flights are proper and which are not.
o We suspect that few if any ALUC Board members could explain when overflights violate the law by being too low as related to the distance of aircraft taking off and arriving at Palomar. We did not see anything in the MP LUCP, which explains this.
• REQUEST: In the ALUC MP LUCP, state (i) when aircraft arriving at and leaving Palomar Airport are deemed to be too low and hence raise safety concerns, (ii) the written source of the info that the ALUC is using, and (iii) the official complaint procedure with contact info that concerned members of the community may use when such situations occur.
From the perspective of C4fa, the ALUC shirks its duty if its response is: Talk to the FAA or Talk to the County. We understand that the answer to the foregoing question needs to relate the aircraft altitude to its distance from Palomar and perhaps to the type of aircraft (FAA-rated A, B, C, or D).
10 Because the use of leaded aviation fuel is so bad, we understand that the present FAA target to eliminate the sale of leaded aviation fuel is December 2018. However, private GA pilots tell us that leaded additives are readily available and when the sale of leaded aviation fuel is eliminated, they will simply use the additives – rather than buying a new engine or retrofitting their old engines at substantial cost.
Sept. 1, 2020 Item #5 Page 177 of 194
§2.4 and
§ 2.6.1 and § 2.8 and § 2.9 and §
2.12
Consistency of
Vista General Plan with ALUC Compatibility Plan
Also, provide an answer in terms of meaningful street locations. An answer along the lines of: Aircraft departing Palomar must be at least x feet above mean sea level when
more than y miles from the airport does not tell the reader where the x mile limit is. The ALUC can accomplish that by including in its updated MP ALUC Thomas Guide Atlas maps with appropriate radii from the airport shown.
• The ALUC 2010/2011 MP LUCP Exhibit III-2 [“Compatibility Policy Map Safety] shows the ALUC Safety Zone 4 stopping just shy of the Vista Municipal boundary. If the Palomar runway is extended 800-feet to the east, it appears based on the Exhibit III-2 scale that
property owners within the city of Vista will be impacted. The colored LUCP Exhibit III-2 provides better information but a reproduced black and white Exhibit III-2 is reproduced below.
Sept. 1, 2020 Item #5 Page 178 of 194
2.4 and § 2.6.1 and
§ 2.8 and
§ 2.9 and § 2.12
Consistency of
County General Plan with ALUC Compatibility Plan
• Based on the county 2018 Palomar Master Plan, it appears the ALUC needs to resolve an issue it has not previously recognized. o Note from the MP LUCP Exhibit III-2 above that the county airport has an irregular
parcel outlined in blue (in the original drawing) in a north-south orientation.
o This irregular parcel crosses the Runway Protection zone and safety zones 2, 3 and 4.
o That parcel is on the Northeast corner of El Camino Real (ECR) and Palomar Airport Road (PAR). o In theory, county operates Palomar Airport pursuant to Carlsbad Conditional Use Permit (CUP) 172. However –
The Carlsbad CUP 172 boundaries [as shown in a CUP attachment] do not extend across El Camino Real to the Northeast airport parcel.
Moreover, County in its 2018 PMP and in related statements has said that it is not bound to comply with Carlsbad planning or zoning because county is a
superior governmental entity.
o Although county has adopted a General Plan as required by the Government Code,
the GP on its face states that it applies to the unincorporated areas of the county. o Accordingly, if county wants to build any structures within the irregular parcel outlined in blue noted above – which county owns – there is neither a Carlsbad General Plan nor a County General Plan.
o Conclusion: Until either (i) county says any structures it wishes to place within the irregular blue shaped area are subject to Carlsbad Planning and Zoning or (ii) county amends its General Plan in accordance with Government Code requirements to apply county planning and zoning to the affected area, it would be impossible for the
ALUC to make the statutorily required finding of consistency with the ALUC’s
updated MP LUCP.
o Note: The same issue applies at Gillespie Field and should be addressed in the Gillespie LUCP.
• REQUEST: In the Updated MP LUCP, advise (i) how the county PMP projects will impact Vista residents and (ii) what actual notices the ALUC will give to Vista property owners impacted by the county Palomar Runway extension.
Sept. 1, 2020 Item #5 Page 179 of 194
• REQUEST: In the Updated MP LUCP, advise how the ALUC will address the issue of county placing structures in the irregularly shaped blue area noted above when structures in this area exist in a “No Man’s Land” currently not regulated by Carlsbad (because the county denies the Carlsbad jurisdiction) and not regulated by the county because the county plan applies to unincorporated areas of the county and the relevant area is with the boundaries of the city of Carlsbad.
Comments on ALUC 2010/2011 MP LUCP Chapter 3 entitled McClellan-Palomar Airport Policies and Maps
3 § 3.2
§ 3.2.1
§ 3.2.2
Compatibility
Zone
Designation
• These sections seem inconsistent for these reasons:
o § 3.2.1 suggests that the 2010/2011 MP LUCP is based on the FAA approved 2008 ALP, which refers to an ultimate ARC of C-II. o § 3.2.2 in contrast refers to ALUC-designated safety zones based on “general
aviation” aircraft [as opposed to commercial sized aircraft].
o The risk to people on the ground in safety zones and the size of the crash debris field increase dramatically as aircraft increase in weight, fuel carried, and speed. o Similarly, the risk to people in a crashing aircraft increase dramatically depending on whether an FAA-rated 90,000 pound aircraft carrying 6,000 pounds of fuel, and traveling faster carries 5 corporate passengers or 100 commercial air carrier
passengers.
o In short, did the ALUC 2010/2011 safety zones analysis base its zone designations on the 10,000+ larger aircraft then using Palomar [despite the inaccurate designation of the critical design aircraft as the Falcon] or only on the “general aviation” aircraft
that the 2010/2011 MP LUCP refers to? Where is the supporting proof and
calculations of the crash debris fields to support the ALUC conclusion?
• REQUEST: In the Updated MP LUCP (i) address the issues noted above and (ii) rather than referring to “general aviation” aircraft, provide a table showing the heaviest, most
fuel laden, and fastest aircraft used to determine the crash safety areas and debris fields. Also in a technical Appendix provide the assumptions, methodology, and
Sept. 1, 2020 Item #5 Page 180 of 194
computer model used to determine the noise and safety zones so that a consultant
retained by the public may review them.
§ 3.2.2 Runway Length and Orientation • REQUEST: Because county plans to relocate its runway northward, and hence change the orientation of the runway, which the ALUC analyze in 2010/2011, in the Updated MP LUCP, show how the safety areas change. Presumably, that analysis means increasing the restrictions on some property owners and reducing the restrictions on others. Likely, such changes will have a material financial impact on such owners.
Accordingly, in the Updated MP LUCP, provide maps and lists of property owners impacted to assure that such property owners received proper procedural due process of the intended changes.
§ 3.3 Noise Compatibility Policies for
McClellan-Palomar Airport
• The ALUC noise analysis applies CNEL principles only. In Berkeley Keep Jets Over the Bay, 111 Cal.Rptr.2d 598, the California courts imposed an additional noise analysis
requirement to account for numbers of Single Noise Event Levels (SNEL).
• REQUEST: In the Updated MP LUCP also provide a SNEL analysis especially as it relates to Carlsbad schools near the airport. As noted in Item 2 at page 14 above a 2018 study of the impact of noise on schools shows that student learning can be
substantially disrupted by aircraft noise. If the ALUC does not provide an SNEL analysis, explain why so that the issues are properly framed for court review.
Comments on ALUC 2010/2011 MP LUCP Chapter 4 entitled Background Data: McClellan-Palomar Airport and Environs
4 Table IV-2 at p. 4-13 and 4-14
Enplanements
• Note that the 2010/2011 MP LUCP assumed 15,000 to 35,000 annual enplanements whereas the 2018 PMP forecasts 304,000 to 575,000 annual enplanements.
• In other words prior Palomar operations endangered about 30 persons per aircraft and forecasts about 100 persons per aircraft being endangered.
Sept. 1, 2020 Item #5 Page 181 of 194
Metroplex Flight Path Changes
Helicopter flight path changes resulting from
new hospitals and schools.
• In addition the increased passenger load means higher numbers of larger, faster, more fuel-laden aircraft flying, which changes the size and shape of the crash debris zone.
• Note also that the FAA’s implementation of NextGen [which fans out flight paths over a
broader area as reflected by noise suits against the FAA from communities now suffering
noises in neighborhoods not formerly in issue] changes the Flight Track usage at Table IV-2 on page 4-14, which the ALUC relied on to prepare its 2010/2011.
• Also, Table IV-2 at page 4-15 relied for its analysis on the location of certain hospital and
schools. We understand that in the last 8 years, more schools and hospitals have been built and presumably will be addressed in the Updated MP LUCP since crash locations for helicopters ferrying patients will change.
Table IV-3 at p. 4-23 and 4-24
Improvements near runway
County General
Plan Consistency
• Table IV-3 is seriously out of date. In the last 4 years alone, Carlsbad has approved major commercial (many hotels) and residential units within 2 miles of an extended Palomar runway. The new ViaSat HQ campus alone is nearly 1,000,000 square feet.
• The ALUC information in Table IV-3 at p. 4.24 related to the County General Plan confuses us.
o Palomar Airport as well as much of the impact noise and safety areas are within the
city of Carlsbad.
o In its 2018 PMP, the county says that – as a superior governmental entity – county is not bound by Carlsbad Planning and Zoning. o We also understand that the County General Plan expressly says that it applies only to unincorporated areas. Any county Palomar Airport owned areas within Carlsbad
[such as the entire airport Palomar parcel on the northeast corner of Palomar Airport Road and El Camino Real] is within the city of Carlsbad. o It appears therefore that county uses county land in a “NO MAN’s” land not covered by the Carlsbad General Plan and not covered by the County General Plan or the GP
policies..
o Accordingly, it appears that the last half of Table IV-3 on p. 4.24 is incorrect. Please update and explain what changes will be made and why. Please assure that the
Sept. 1, 2020 Item #5 Page 182 of 194
§4.3.2 at p. 4-33
Compatibility Data: Safety
ALUC is basing its revision on what the San Diego Board of Supervisors has actually
adopted in writing, as opposed to merely San Diego staff opinions.
• This section reliefs on various flight paths for its designation of safety zones. As noted above, the FAA introduction of Metroplex changes the prior data – as will relocation and
extension of the runway from 4900 feet to 5700 feet.
• REQUEST: Address the issues noted above in the ALUC Updated MP LUCP.
Comments on ALUC 2010/2011 MP LUCP Appendix C entitled Airport Land Use Compatibility Concepts
1. ALUC 2010/2011 Safety Analysis
See Appendix C [Airport Land Use Compatibility Concepts]
• At page C-6, the ALUC notes that the State Aeronautics Division Handbook requires analysis of commercial and general aviation airport safety contours. o The ALUC then presents Exhibits C-1 and C-2, which
respectively depict accident safety distribution contours for
arriving and departing general aviation aircraft.11 o The ALUC did not provide similar exhibits depicting accident safety distribution contours for commercial arriving and departing aircraft.
o As suggested above, we would expect commercial aircraft crash debris fields to be significantly different in shape and size due to their size, much greater fuel capacity, and speed.
• REQUEST: In the updated MP LUCP, add the commercial debris fields so safety impacts can be assessed of Palomar transitioning from a B-II airport to a D-III airport. When showing the fields superimpose them over actual properties owned so that such owners have proper notice as to how their properties may be restricted.
11 We assume the Exhibit term “accident distribution contour” is a euphemism for the distribution of aircraft debris during a midair safety event [loss of aircraft parts] or crash into the ground.
Sept. 1, 2020 Item #5 Page 183 of 194
• At page C-6, the ALUC also notes that ALUC-designated safety zones have a “spatial” and “time” element. When the ALUC prepared its 2010/2011 MP LUCP, the FAA had not yet implemented its Next Generation [NextGen] Satellite Aircraft guidance system.12 In 2010 (see
p. C-7), the ALUC assumed aircraft approaches extended 2000 feet on
either side of the runway centerline. NexGen changes this assumption. o Under the FAA pre-NextGen FAA Control Tower procedures, aircraft tended to have more uniform, repetitive flight paths. o In contrast, under NextGen, which Palomar is in the process of
implementing, flight paths will “fan out” into broader departure and arrival patterns. Accordingly, it is foreseeable that the ALUC safety zones will broaden. How this occurs is no doubt a difficult analytic problem, possibly requiring ALUC to retain aviation
experts.
o We simply note that a properly updated ALUC MP LUCP will address this issue.
• REQUEST: In the updated ALUC MP LUCP explain what criteria the ALUC uses to assess the number of feet that aircraft will approach and depart from the Palomar runway under NextGen instead of the currently used 2000-foot ALUC assumption.
• At page C-14, in Table C-1 entitled “Safety Zone Aircraft Accident Risk
Characteristics,” the ALUC evaluates various aircraft maneuver risks. It did not evaluate risks associated with Engineered Material Arresting Systems (EMAS) because Palomar in 2010/2011 did not have any EMASs.
o The county 2018 PMP proposes installation of EMAS systems in phases. As noted above, an EMAS is designed to handle aircraft
12 In the San Diego region, the FAA has referred to NexGen as its Metroplex Plan, possibly due to the substantial community opposition and lawsuits that NexGen has generated.
Sept. 1, 2020 Item #5 Page 184 of 194
overshooting a runway at about 70 miles per hour.
o An EMAS at the approach end of a landing aircraft is NOT designed for the approaching aircraft use. FAA-rated C and D aircraft can approach at up to 141 knots. Hence, approaching
aircraft must avoid the approach end EMAS at all costs.
o In addition, an aircraft taking off easterly from Palomar [the Santa Anna Wind scenario] today has 1000 feet of actual sandy area outside the runway in which to stop. If the runway is extended 800 feet and an east end EMAS installed, any aircraft overshooting the runway and EMAS will endanger
heavy traffic on El Camino Real, which adjoins the airport.
o An EMAS designed for 70 knot aircraft will not stop an aircraft on takeoff traveling 100 knots. This scenario can occur whenever an aircraft has a mechanical defect or
physically incapacitated pilot.
• REQUEST: Accordingly, in the ALUC updated MP LUCP explain how a Palomar installation of EMAS systems both improves and reduces safety and changes the ALUC-safety-designated zones under various assumptions. If the runway is extended 800-feet and an East end EMAS is added, the threat to traffic on El Camino Real (perhaps 100 feet from the EMAS end) seems significantly higher for aircraft entering the EMAS at above the 70 knot design speed – as where the aircraft encounters a mechanical failure.
• At page C- 15, the 2010/2011 MP LUCP discusses the “consequences variable.” Specifically, how large is the “swath size,” area over which accident debris is spread and hence the property and people on the
ground at risk in a crash. The existing LUCP refers to a swath size of about a football field for general aviation aircraft. However, the existing LUCP provides no data for commercial aircraft. o Since county plans to convert Palomar from an FAA-rated B-II
Sept. 1, 2020 Item #5 Page 185 of 194
airport to a D-III airport, the number of heavy, fast moving
aircraft carrying 2,000 to 6,000 pounds of aviation fuel will increase substantially. o The consequences variable also takes into account the
contamination that aircraft crashes may cause. On October 15,
2013, county’s consultant SCS Engineers provided the county a report discussing the highly toxic materials that aircraft today routinely carry. Please obtain a copy of the full report from the county to review all consequence hazards. We attach the first page of the report at the end of this table. We also quote several
report sentences listing the (i) pathogenic materials, (ii) radioactive materials, (iii) highly flammable materials, (iv) corrosive materials, and (v) cryogenic liquids turning to harmful gases that aircraft routinely carry.
• REQUEST: In the updated MP LUCP, describe the swath size for various commercial aircraft that will use Palomar in the future. Break out the swath size by size, speed, and expected fuel loads on larger aircraft.
• REQUEST: In the updated MP LUCP, describe how the swatch size enlarges when aircraft liquids turn to dangerous gases. In other words, crashing aircraft parts endanger only property and persons within the debris field. But the winds blow chorine and other gases
over a wider area. Address this issue in your updated MP LUCP.13
• At page C-16, the old MP LUCP notes that safety area designation depends in part on density and intensity requirements. In the last 7 years, Carlsbad developers have added substantial high density facilities along Palomar Airport Road including multiple hotels. Currently, a major
13 Many private and governmental Risk Management Plans [such as those involving property with large tank farms storing hydrocarbon and/or chemical
products] provide such analysis.
Sept. 1, 2020 Item #5 Page 186 of 194
Bressi Ranch addition of commercial and residential is underway.
Similarly, D.R. Horton is building townhouses and condominiums about 2 miles east of Palomar.
• On August 20, 2018, the FAA released its revised AC No. 150/5200-38
entitled “Protocol for the Conduct and Review of Wildlife Hazard Site
Visits, Wildlife Hazard Assessments, and Wildlife Hazard Management Plans.”14 As the AC notes, an important factor in assessing aircraft safety is the likelihood of bird strikes. The AC requires an assessment of how development around the airport can change bird habitat. In the last
12 months, it appears that developments within 3 miles of the airport are removing more than 1 million square feet of existing bird habitat. These developments include the (i) new ViaSat HQ building on El Camino Real just south of Palomar; (ii) multiple hotels just southeast of Palomar
Airport Road; and (iii) the very large Bressi Ranch addition of
commercial and residences southeast of PAR.
• In the updated MP LUCP, identify the increased Carlsbad density and intensity within 3 miles of the airport and how such development affects the ALUC-designated safety zones.
• At page C-18, the 2010/2011 LUCP notes: “Runway Proximity: In general, the areas of highest risk are closest to the runway ends … .”
o As noted above, aircraft now landing or taking off from Palomar touch down at least 1100 feet from the adjacent El Camino Real, a major arterial gridlocked at peak hours. o Extending the runway eastward by 800 feet, will reduce this
distance to 300 feet or a 2 second distance for a C or D aircraft approaching at about 150 knots.
o The ALUC has not in the past identified any land use restrictions
14 The FAA so-called “Advisory Circulars” (ACs) establish the protocol that airports receiving FAA grant funds must follow. The county has previously
received in excess of $30 million in FAA grant funds.
Sept. 1, 2020 Item #5 Page 187 of 194
that can protect vehicles on roads adjacent to airports.
• REQUEST: In the Updated MP LUCP (i) identify the increased risks to traffic on ECR from a county 800-foot runway extension and (ii) identify measures by which this risk could be reduced.
• At page C-20, the 2010/2011 MP LUCP notes: “Among other hazards to flight, bird strikes represent the most widespread concern. “ The ALUC then references FAA open landfill requirements. However, it appears
that the ALUC 2010-2011 LUCP made no effort to evaluate (i) the number of bird strikes affecting aircraft using Palomar or (ii) the amount of birds in the area. In the past, bird strikes presented mainly risks to a few corporate flyers and air carrier passengers. However, county’s new 20-year plan proposes to serve 304,000 to 575,000 air carrier passengers.
• In the Updated MP LUCP (i) identify the level of concern that bird strikes may cause at Palomar [Note: The MP website available to pilots notes substantial birds in the spring.]; (ii) identify the extent to which birds displaced by construction of more than 1,000,000 feet of empty land within 3 miles of the airport may be diverted to the MP northeast corner of ECR and PAR; and (iii) restrictions that might reduce the bird population in conformance with applicable laws.
Comments on ALUC 2010/2011 MP LUCP App D, Methods for Determining Concentrations of People
1 Property
Restrictions
Appendix D • By imposing its restrictions, the ALUC has the power to reduce the value of
property by more than 50%. Accordingly, the manner of calculating restrictions should be clear. Appendix D does not do that.
• Appendix D has several tables providing information but gives no examples
of real life situations to explain how the ALUC applies the data. Laypersons owning property in a possibly impacted safety area are left to guess how the ALUC makes its calculations.
Sept. 1, 2020 Item #5 Page 188 of 194
• REQUEST: In the Updated MP LUCP, provide at least 10 examples of how the restrictions on commercial and industrial property and on governmental property such as schools is calculated. When providing the calculations, state the assumptions the ALUC is making, the specific data source relied on, and show the calculations.
• REQUEST: It appears that relocation of the runway may reduce restrictions on a few properties. Identify these properties [recognizing that reduced restrictions are contingent on the runway actually being relocated] so that the ALUC has inversely condemned property by restrictions no longer applicable. Show the revised safety area borders precisely so that properties benefiting from a runway relocation may be properly identified.
Comments on ALUC 2010/2011 MP LUCP Appendix D entitled General Plan Consistency Checklist
1 Consistency • Request: As noted above, verify the impacted property that is and is not within the County General Plan, which appears to apply only to unincorporated areas of the county.
• Request: If impacted properties are owned by the county but within the city of Carlsbad, verify that the county will comply with the ALUC restrictions since county has said it need not abide by Carlsbad planning and zoning.
Attachment A
Transcript of Supervisor Bill Horn December 15, 2016 Board of Supervisor
Statement Documenting Conversion of Palomar to Airport for Larger Commercial Aircraft in Place of
General Aviation Recreational Aircraft
Sept. 1, 2020 Item #5 Page 189 of 194
Sept. 1, 2020 Item #5 Page 190 of 194
Attachment B to Bender September, 2018 Comments on ALUC Update to
2010/2011 McClellan-Palomar Master Plan
Sept. 1, 2020 Item #5 Page 191 of 194
County Consultant SCS Engineers Report Entitled Evaluation of Possible Environmental Impacts of An Aircraft Crash
Into the Landfill Cover at Palomar Airport Landfill Bender Comment: We provide the title page and relevant SCS report excerpts. The title page follows the excerpts for technical computer insert reasons. We are of course aware that the ALUC focuses on land outside Palomar Airport. We provide the report because it well describes the environmental risks of a large fuel laden aircraft crashing anywhere. Hence, it is relevant to the ALUC’s
designation of Safety Zones outside the Airport.
Identification of Palomar Aircraft Crash Hazards
Spillage of flammable liquids such as Jet fuel: “These fuels are highly combustible, burn at extremely high temperatures, can be corrosive to aircraft equipment and are highly toxic to human beings … Ignition of the jet fuel or
other flammable material, upon impact, could also be highly probable.” [p. 3]
Burning of solids. “Post-crash fires can result in burning of … aircraft batteries and electrical equipment, engines, tires, wheels, pathogenic substances, radioactive materials, and metals such as aluminum and fiber-reinforced polymer composites of the aircraft fuselage and wings. … If the crash occurs during the dry season, grass fire could ignite and
spread to other areas of the site and create secondary environmental issues such as smoke (air quality issues), as well as
possible offsite wildfires and or burn, smoke and or structural damage to other onsite or offsite property.” P. 3]
Spillage of cryogenic liquid. “Cryogenic liquids … are used as cooling agents to reduce engine temperatures … . These liquids are … on the Hazardous Materials Information System. Hence, even low quantities of cryogenic liquids
can expand into large volumes of gases … . If not stored in containers with adequate pressure-relief devices, enormous
pressures can build up within the containers. The impact from an aircraft rash can cause a sudden rapid increase in the internal pressure of the container. Results can range from damage to surrounding equipment, structures, explosions, called ‘boiling liquid expanding vapor explosion,’ to asphyxiation hazards.” [p. 4]
Pressurized liquid and/or vapor release. “Aircraft utilize a variety [of] hydraulic and pneumatic accumulators, which
contain pressurized air or fluids that assist in the operation of equipment … . [R]upture can] lead to sudden discharge
of large amounts of pressurized fluids, resulting in destruction of property, and possibly injury to persons in proximity to the rupture.“ [p. 4]
Sept. 1, 2020 Item #5 Page 192 of 194
Pipe rupture. “Impact from an aircraft crash may result in extensive damage to nearby above/below-grade utility lines.
Damage or rupture of a buried water, gas or storm drain line, could contaminate nearby soils and water bodies. Emission release from pipes could severely compromise the air quality and even cause explosions, depending on the contents of the carrier pipes. Impact to piping associated with the GCCS [methane gas collection and control system]
may damage the system and cause a release of LFG to the atmosphere. If the LFG concentration is within flammable
ranges and an ignition soured is present, explosions or fires may occur. …” [p. 4]
Sept. 1, 2020 Item #5 Page 193 of 194
Sept. 1, 2020 Item #5 Page 194 of 194
NOTICE OF PUBLIC HEARING
NOTICE IS HEREBY GIVEN to you, because your interest may be affected, that the City Council of the City of Carlsbad will
hold a public hearing at the Council Chamber, 1200 Carlsbad Village Drive, Carlsbad, California, at 3:00 p.m. on Tuesday,
Sept. 1, 2020 to consider approving a Zone Code Amendment and Local Coastal Program Amendment to update the city's
density bonus regulations to reflect changes in state law and more particularly described as:
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF CARLSBAD, CALIFORNIA, ADOPTING A ZONE CODE AMENDMENT
AND A LOCAL COASTAL PROGRAM AMENDMENT TO UPDATE THE CITY'S DENSITY BONUS REGULATIONS TO REFLECT
CHANGES IN STATE LAW
Whereas, on June 17, 2020, the City of Carlsbad Planning Commission voted 7/0 to recommend approval of a Zone Code
Amendment and Local Coastal Program Amendment to update the city's density bonus regulations to reflect changes in
state law. The city planner has determined that the amendments are exempt from the California Environmental Quality
Act (CEQA) pursuant to CEQA Guidelines Section 15061(b)(3) because the amendments do not have the potential to cause
a significant effect on the environment.
Copies of the staff report will be available on and after August 28, 2020. If you have any questions, please contact Corey
Funk in the Planning Division at (760) 602-4645 or Corey.Funk@carlsbadca.gov.
Individuals wishing to speak on this proposal are cordially invited to participate in this public hearing. Per State of
California Executive Order N-29-20, and in the interest of public health and safety, we are temporarily taking actions to
prevent and mitigate the effects of the COVID-19 pandemic by holding City Council and other public meetings
electronically or by teleconferencing. The meeting can be viewed online at www.carlsbadca.gov or on the city's cable
channel. The Carlsbad City Council welcomes your participation. During the COVID-19 public health emergency, the city
has provided two easy ways for community members to provide comments during a City Council meeting:
Verbally
Sign up to provide verbal comments by phone by filling out an online registration form by 2 p.m. the day of the meeting.
You will receive a confirmation message with instruction about how to call into the meeting.
In writing
E-mail your comments to clerk@carlsbadca.gov. Ennails received by 2 p.m. will be provided to the City Council prior to
the start of the meeting. Other comments will be included with the meeting record. Emailed comments will not be read
out loud during the meeting. Please indicate the agenda item number in your email subject line.
If you challenge the Zone Code Amendment and Local Coastal Program Amendment you may be limited to raising only
those issues you or someone else raised at the public hearing described in this notice or in written correspondence
delivered to the City of Carlsbad, Attn: City Clerk's Office, 1200 Carlsbad Village Drive, Carlsbad, CA 92008, at or prior to
the public hearing.
CASE FILE: ZCA 2020-0001/LCPA 2020-0005
CASE NAME: DENSITY BONUS AMENDMENTS 2020
PUBLISH: August 21, 2020
CITY OF CARLSBAD
CITY COUNCIL
KVIRY® 516at a a
AXELSON & CORN ATTORNEYS AT LAW
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SUPERINTENDENT'S OFFICE
1901 SPINNAKER DRIVE
VENTURA CA 93001
COUNTY OF SD SUPERVISOR
ROOM 335
1600 PACIFIC
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DEPT OF HOUSING & URBAN DEV REGION IX
ENVIRONMENTAL OFFICER
300 North Los Angeles Street Suite 4054
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SUITE 2300
100 1ST STREET
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EDWIN ROMERO, CHAIRPERSON
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SD COUNTY
PLANNING & LAND USE DEPT
SUITE 310
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OFFICE (SCAO)
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DIVISION OF PLANNING/DEVELOPMENT
REVIEW
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Density Bonus Ordinance Update
Jeff Murphy, Community Development Director
September 1, 2020
Background
•In exchange for reserving % of units as affordable…
–Density increase over local maximum
–Reduction of development standards
•Cities cannot adopt laws that contradict state law
2
Assembly Bill 1763
•If 100% affordable and located within ½ mile of a
major transit stop…
–No limit on density allowed on the site
–3 stories or 33 ft. above existing height limits
3
Assembly Bill 1763
4
Major transit stop includes Carlsbad’s Coaster stations; bus stops do not qualify.
Assembly Bill 1763
•If 100% affordable and located within ½ mile of a major transit stop…
–No limit on density allowed on the site
–3 stories or 33 ft. above existing height limits
•If 100% affordable and not located within ½ mile of a major transit stop…
–80% density bonus
5
Assembly Bill 1763
•No parking required if…
–100% affordable
–Provides special need or supportive housing
–Located ½ mile from a transit stop
6
New Approach to the Code
•State updates code regularly
•City required to update its regulations to be consistent
•Proposed code focuses on…
–Permit process
–Submittal requirements
–Refers to state law on density bonus allowances
•Reduces the risk of being out of compliance
7
New Approach to the Code
•Improving transparency and demystify processes
–Information Bulletins help explain requirements
–Supplemental forms help justify deviations
8
Information Bulletin
•Simple and direct terms
•Project eligibility
•Permitting requirements
•Calculation explanation
•Qualifications for:
–Concessions,
incentives or waivers
9
State Density Bonus
This Information Bulletin outlines the development and
orocessine reauirements to receive the benefits orovided for
under the State Density Bonus Law.
State Density Bonus Law (GOY. Code §65915 65918) allows a
developer to increase density on a property above the
maximum set under a city's local land use plan (Carlsbad
General Plan). In addition, qualifying applicants can also
receive reductions in required development standards such as
setbacks, height limits, and parking requirements. In exchange
for the increased density, a certain number of the new
dwelling units must be reserved for very low, low, or
moderate-income households, seniors or the other eligible
projects listed below
Any housing development that proposes five or more units
and incorporates at least one of the requirements below is
eligible for a density bonus
5% units restricted to "Very Low Income ...
10% units restricted to fflow Income# or ·Moderate
Income"
10% units restricted for transitional foster youth,
disabled veterans, or homeless
20% units for •low Income" student housing
A senior housing~
An age-restricted mobile home park
Projects which include a child care facility
Units must be restricted to their level of affordability for at
least 55 years by a recorded document_ Eliit;ibility is
established by state law. A city may not enact or impose local
laws that conflict with State law or prohibit what the
legislature intends to authorize
HOW IS DENSITY BONUS CALCULATED?
The number of additional units allowed under this program is
set on a sliding scale, based on two factors
The percentage of units in the project that will be set
aside as affordable; and,
The household income category of those affordable
units (very low, low, or moderate household income).
Documents Referenced
State Density Bonus Law (Gov. Code §65915-65918)
Density Bonus Ordinance (Carlsbad Muni. Code Ch. 21.86)
Density Bonus Application Checklist
Density Bonus calculation O\an
State law requires that all density calculations resulting in
ANY fractional units shall be rounded up to the next whole
number_ This applies to both base density and density bonus
calculations
Notwithstanding the above, State law requires that the
percentage of affordable units on the site must exceed the
percentage established in the sliding scale. The city interprets
this requirement to mean that the fractional percentage of
units being reserved as affordable must be rounded down to
the nearest whole number.
Also, while the city utilizes a "mid-range .. density calculation
for determining the allowable number of units on a
property, state law requires that density bonus be calculated
based upon the maximum density allowed under the zoning
ordinance.
THEORETICAL EXAMPLE
A property is 1.003 net acres in size, with a zoning designation
ofR-lS(lSdwelling units per acre). This results in a maximum
basedensityof lS_QS units forth is site (1_003 acres multiplied
by 15 units per acre), which rounds up to 16 units.
The applicant proposes that two of the units will be reserved
for low-incom~ households. This results in 12.5% of the 16
units that will be reserved for affordable housing, which
rounds down to 12%.
Based on the sliding scale found in the attached Density
Bonus Table, with 12% of the units reserved as affordable, the
project's base density can increase by 23%, for a total of 19.68
units, which rounds up to 20 total units
WHAT ARE CONCESSIONS/INCENTIVES?
In many cases, a development project must be modified
and/or reduced to comply with established objective design
standards and other regulations such as limits/requirements
on building height, setback, parking, and on-site open space
requirements
Concessions and incentives, as defined under State law, allow
a developer to deviate from those design standards and/or
Supplemental Forms
•Application checklist
•Improve staff and public
understanding for:
–How to apply the law
–Why requested
standards need to be
waived
10
{'Cityof
Carlsbad
DENSITY BONUS
SUPPLEMENTAL CHECKLIST
P-X~
Communit)( Development
Planning Division
1635 Faraday Avenue
(760) 602-4610
www.carlsbadca.gov
The information listed in this checklist is required to be completed for all residential development applications being
processed under Government Code §65915 -65918 {State Density Bonus Law). Please prepare the required
materials/information described in this checklist and submit in one document entitled "Supplemental Application -
Density Bonus Program". Refer to Information Bulletin P-rut for additional information.
0
0
0
PROJECT LOCATION
Include the street address and APN(s) of the subject property.
PROPERTY DESCRIPTION
Include information about the property and immediate area such as general location, prior uses on-site,
site characteristics (i.e., slopes, habitat, drainage), neighborhood setting, General Plan designation,
zoning designation, and maximum density allowed by zoning.
PROJECT DESCRIPTION
Describe the proposed project. Please make sure to include the following information.
Total number of lots/units proposed (maximum density and density bonus units}
Type of housing proposed and any anticipated construction phasing
Number, location and income level of the proposed affordable units
Project access, infrastructure, and any proposed amenities/open space
DENSITY CALCULATIONS
Indicate the number of lots proposed and how many are proposed to be designated as affordable. Include
the following information:
□ Show all density calculations
Income levels of the affordable units
Number of "Concessions/Incentives" requested
Number of "Waivers" requested
CONCESSION(S)/INCENTIVE(S}, if requested1
Please provide evidence demonstrating that the requested concession/incentive results in identifiable,
financially sufficient, and actual cost reductions that contribute significantly to the economic feasibility of
the reserved affordable units. Please include the following in the response.
Provide specific information on and discussion of each concession/incentive proposed
D Include discussion of why the findings to deny grant of the proposed concession/incentive are
not supportable for the proposed project:
a Why the concession/incentive is required to provide for affordable housing costs, or for
rents to targeted units to be set as provided under state law?
a Would the grant of the concession/incentive have a specific adverse impact upon public
health and safety or the physical environment or listed historical property? If yes, are there
Information Bulletin
•Calculation chart
•Contains specific density
bonuses to be awarded
•Combines multiple
tables from state law
into single chart
11
DENSITY BONUS TABLE
% oflotal Units
Reserved Very Low Income
Affordable Density Bonus Ill
5% 20%
6% 22.5%
7% 25%
8% 27.5%
9% 30%
10% 32.5%
11% 35%
12% 35%
13% 35%
14% 35%
15% 35%
16% 35%
17% 35%
18% 35%
19% 35%
20% 35%
21% 35%
22% 35%
23% 35%
24% 35%
25% 35%
26% 35%
27% 35%
28% 35%
29% 35%
30% 35%
31% 35%
31% 35%
33% 35%
34% 35%
35% 35%
36% 35%
37% 35%
38% 35%
39% 35%
40% 35%
(1) Govemmenr Code §65915(1)(2)
(2) Govemmenr Code §65915(1)(1)
(3) Govemmenr Code §65915(/)(4)
(4) Government Code §65915(g)(1)
Low Income
Density Bonus (!)
20%
21.5%
23%
24.5%
26%
27.5%
29%
30.5%
32%
33.5%
35%
35%
35%
35%
35%
35%
35%
35%
35%
35%
35%
35%
35%
35%
35%
35%
35%
35%
35%
35%
35%
Moderate Land Donation Income Density
Bonus«11 Density Bonus l•l
5% 15%
6% 16%
7% 17%
8% 18%
9% 19%
10% 20%
11% 21%
12% 22%
13% 23%
14% 24%
15% 25%
16% 26%
17% 27%
18% 28%
19% 29%
20% 30%
21% 31%
22% 32%
23% 33%
24% 34%
25% 35%
26% 35%
27% 35%
28% 35%
29% 35%
30% 35%
31% 35%
32% 35%
33% 35%
34% 35%
35% 35%
(5) Government Code §65915(/)(3); No affordable units are required for senior housing units to receive a density bonus.
Senior Density
Bonus IS!
20%
20%
20%
20%
20%
20%
20%
20%
20%
20%
20%
20%
20%
20%
20%
20%
20%
20%
20%
20%
20%
20%
20%
20%
20%
20%
20%
20%
20%
20%
20%
20%
20%
20%
20%
20%
Recommendations
•Airport Land Use Compatibility Plan –Approved
•Planning Commission –Approved
•City Council Policy Subcommittee –Approved
12
Decision making authority
•State density bonus law applies to projects >5
units
–Staff level approval only on projects <4 units
–Planning Commission has approval authority
on all density bonus projects
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Recommendation
Introduce an ordinance adopting a Zone Code
amendment (ZCA 2020-0001) and Local Coastal
Program amendment (LCPA 2020-0005) to update the
city’s density bonus regulations to reflect changes in
state law
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Density Bonus Ordinance Update
Jeff Murphy, Community Development Director
September 1, 2020
Ordinance update required
•Must address inconsistencies
•Cities are required to adopt an ordinance
•Required by Housing Element Program 3.3
•Important to show compliance for current housing
element update
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Ordinance update required
•Must address inconsistencies
•Cities are required to adopt an ordinance
•Required by Housing Element Program 3.3
•Important to show compliance for current housing
element update
•Proposed ordinance accomplishes this by deferring
to state on allowance and focusing more on process
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