HomeMy WebLinkAbout2021-04-06; City Council; Resolution 2021-074RESOLUTION NO. 2021-074
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CARLSBAD,
CALIFORNIA, IMPLEMENTING UPDATED HOUSING ELEMENT PROGRAM 2.2,
BY FINDING THE CITY'S RESIDENTIAL HOUSING CAPS CONTAINED IN THE
GENERAL PLAN, GROWTH MANAGEMENT PLAN (PROPOSITION E), CITY
COUNCIL POLICY STATEMENT NO. 43, AND THE CITY'S MUNICIPAL CODE
(TITLE 21 CHAPTER 90) ARE PREEMPTED BY STATE LAW AND
UNENFORCEABLE
WHEREAS, in 1986 the voters of the City of Carlsbad, California adopted Proposition E, which
has become known as the Growth Management Plan (GMP); and
WHEREAS, the GMP amended the city's General Plan by adding the following:
The City of Carlsbad in implementing its public facilities element and growth
management plan has made an estimate of the number of dwelling units that will be
built as a result of the application of the density ranges in the Land Use Element to
individual projects. The City's Capital Improvement Budget, growth management plan,
and public facilities plans are based on this estimate. In order to ensure that all
necessary public facilities will be available concurrent with need to serve new
development it is necessary to limit the number of residential dwelling units which can
be constructed in the city to that estimate. For that purpose, the city has been divided
into four quadrants along El Camino Real and Palomar Airport Road. The maximum
number of residential dwelling units to be constructed or approved in the city after
November 4, 1986 is as follows: Northwest quadrant 5,844; Northeast quadrant 6,166;
Southwest quadrant 10,667; Southeast quadrant 10,801; and
The total number of residential dwelling units at build out was limited to 54,599; and,
WHEREAS, for the sixth housing cycle, the city was assigned a total RHNA of 3,873 housing units,
and as of February 28, 2021, only 1,953 residential dwelling units remain available to reach the 54,599
citywide cap. This number includes the 1,353 units that were removed by the City Council in 2002. The
1,953 total units that remain available are distributed among the quadrants as follows: 417 residential
dwelling units in the Northwest quadrant, 102 in the Northeast quadrant, 1,127 in the Southwest
quadrant and 307 in the Southeast quadrant for a total of 1,953; and
WHEREAS, Proposition E also established Growth Management Control Points for General Plan
Density Ranges in order to ensure that growth caps would not be exceeded. When a project is approved
with fewer dwelling units than would be allowed by the Growth Management Control Point, excess
dwelling units are created. These units are "deposited" in the Excess Dwelling Unit Bank ([DUB). The
City Council enacted City Council Policy No. 43 in part to create a process to allocate these excess units
April 6, 2021 Item #6 Page 538 of 570
to future projects. City Council Policy No. 43 can act as a cap on development to the extent that units
are available in the EDUB; and
WHEREAS, the City's General Plan Land Use and Community Design (LUCD) Element also
incorporates the residential caps and control points from Proposition E, including Table 2-3 and Section
2.6, Policy 2-P.8(a) and (b), Policy 2-P.16(d), Policy 2-P.57;
WHEREAS, the City's Municipal Code contains a number of provisions which also implement the
GMP housing caps, including but not limited to CMC §§ 21.90.030 (b), 21.90.045 and 21.90.185;
WHEREAS, in 2017 the California Legislature passed SB 166 which amended the Housing
Element law (Gov. Code § 65863(a)) to require the City to ensure that its Housing Element is capable
of accommodating the remaining Regional Housing Needs Allocation (RHNA) "at all times;" and
WHEREAS, in 2019 the California Legislature passed the Housing Crisis Act of 2019 (SB 330)
which added 66300 to the Government Code. It states that California is experiencing a housing shortage
of crisis historic proportions. To address the crisis, the Legislature has declared a statewide housing
emergency until 2025 and suspended certain restrictions on development of new housing during the
emergency. Among other things, the Legislature has suspended the ability of cities to establish or
implement any provision that:
(i)Limits the Number of land use approvals or permits necessary for the
approval and construction of housing that will be issued or allocated
within all or a portion of the affected county or affected city,
(ii)Acts as a cap on the number of housing units that can be approved or
constructed either annually or for some other time period, or
(iii)Limits the population of the affected county or affected city.
Government Code 66300 (b)(1)(D); and
WHEREAS, on February 23, 2021 the City of Carlsbad received an opinion from HCD (Attachment
A) which states:
The City's GMP appears to be designed to assure that housing development in the City
and the provision of public services are closely aligned (City of Carlsbad Mun. Code, §
21.09.010.) However, the City's GMP establishes growth cap numbers city-wide and by
quadrant. Moreover, the City's GMP mandates that the City shall not approve any
General Plan amendment, zone change, tentative subdivision map or other
discretionary approval for a development which could result in the development above
the limit in any quadrant. The establishment of such growths caps and development
restrictions contradicts Government Code section 66300, subdivision (b)(1)(D).
Accordingly, HCD is of the opinion that such a growth cap under the GMP cannot
permissibly be implemented consistent with Government Code section 66300.
April 6, 2021 Item #6 Page 539 of 570
WHERAS, additional communication with HCD explained the GMP residential unit caps could
not prevent consistency with the Housing Element inventory [Gov. Code 65583(a)(3)] and SB 166 [Gov.
Code § 65863(a)];
WHEREAS, if the City of Carlsbad does not address HCD's concerns and refuses to certify the
City housing element in compliance with state law, the City would lose the ability to control residential
development. More specifically, the Government Code places the burden on a city to deny housing
development projects, and requires a city to adopt specific findings for denial or a reduction in
residential density. (Gov. Code, §§ 65589.5(d) and (j), 65863.) This includes findings that (A) a city has
adopted a housing element in substantial compliance with state law, (B) a city has met or exceeded its
RHNA allocation, and (C) that denial of a housing project is consistent with a city's general plan,
including the housing element. (Gov. Code, §§ 65589.5(d)(1).) If these findings cannot be made, a city
is generally required to approve a housing project. (Id.) The City is also explicitly precluded for relying
upon a land use inconsistency as grounds for denial of a housing project where it does not have a
certified housing element. (Gov. Code, § 65589.5(d)(5)(B).);
WHEREAS, Under the California Constitution article XI, section 7 a city may not enact local laws
that conflict with "general" or state laws. Local legislation that conflicts with the general laws of the
state is void, including Growth Management Plans; California Building Industry Assoc. v. City of
Oceanside (1994) 27 Cal.App.4th 744, 760-761. Cohen v. Board of Supervisors (1985) 40 Cal 3d 277,
290; similarly, previously valid laws which become inconsistent with state law are also void and
unenforceable. Friends of Lagoon Valley v. City of Vacaville (2007) 154 Cal.App.4th 807, 830; and
WHEREAS, Pursuant to Public Resources Code Section 21065, the City's preemption findings
which simply recognize controlling state law do not constitute a "project" within the meaning of the
California Environmental Quality Act (CEQA) in that it has no potential to cause either a direct physical
change in the environment, or a reasonably foreseeable indirect physical change in the environment,
and therefore does not require environmental review.
NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of Carlsbad, California, as
follows:
1. That the above recitations are true and correct and are incorporated herein by reference
to include Attachment A as findings set forth in full.
April 6, 2021 Item #6 Page 540 of 570
2.Consistent with Updated Housing Element Program 2.2, the City Council finds that
Government Code Sections 65583(a)(3) and 65863(a) (SB 166 [20171) and Government
Code Section 66300(b)(1)(D) (SB 330 [2019]) preempt the city from implementing
residential growth management plan caps, residential quadrant limits, and residential
control points. Consequently, the City finds that it cannot and will not enforce these
residential caps, quadrant limits, and control points, including but not limited to those
contained in the General Plan (including, but not limited to the Land Use and
Community Design Element Table 2-3, Section 2.6, Policy 2-P.8(a) and (b), Policy 2-
P.16(d), and Policy 2-P.57), Growth Management Plan (Proposition E); City Council Policy
Statement No. 43, Carlsbad Municipal Code Chapter 21.90 including but not limited to
CMC §§ 21.90.030 (b), 21.90.045 and 21.90.185.
3.If any section, subsection, sentence, clause, or phrase of this resolution is for any reason
held to be invalid or unconstitutional by the decision of any court of competent
jurisdiction, such decision shall not affect the validity of the remaining portions of the
resolution. The City Council hereby declares that it would have passed this resolution
and each section, subsection, sentence, clause, and phrase thereof, irrespective of the
fact that any one or more sections, subsections, sentences, clauses, or phrases be
declared invalid or unconstitutional.
PASSED, APPROVED AND ADOPTED at a Regular Meeting of the City Council of the City of
Carlsbad on the 6th day of April, 2021, by the following vote, to wit:
AYES: Blackburn, Acosta, Bhat-Patel.
NAYS: Hall, Schumacher.
ABSENT: None.
MATT HALL, Mayor
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BARBARA ENGLESON, City Clerk
(SEAL)
April 6, 2021 Item #6 Page 541 of 570
STATE OF CALIFORNIA - BUSINESS, CONSUMER SERVICES AND HOUSING AGENCY GAVIN NEWSOM, Governor DEPARTMENT OF HOUSING AND COMMUNITY DEVELOPMENT DIVISION OF HOUSING POLICY DEVELOPMENT 2020 W. El Camino Avenue, Suite 500 Sacramento, CA 95833
(916) 263-2911 / FAX (916) 263-7453
www.hcd.ca.gov
February 23, 2021
Celia A. Brewer, City Attorney Office of the City Attorney
City of Carlsbad 1200 Carlsbad Village Drive Carlsbad, CA 92008
Dear Celia Brewer:
RE: Request for HCD Opinion on Enforceability of City’s Growth Cap Letter of Technical Assistance
This letter is to assist the City of Carlsbad (City) in the implementation of Government
Code 66300, part of the Housing Crisis Act (Senate Bill 330) of 2019, as requested in the City’s letter dated August 04, 2020. The City’s letter requested the opinion of the California Department of Housing and Community Development (HCD) as to the enforceability of the City’s growth cap provisions within the Growth Management Program (Proposition E or GMP). For the reasons explained below, HCD finds that the
City’s growth cap provisions to be impermissible under Government Code section 66300, subdivision (b)(1)(D).
HCD’s opinion is based on the mandatory criteria established by the Legislature with the passage of SB 330 in 2019, also known as the Housing Crisis Act of 2019, which
added section 66300 to the Government Code. The State of California is experiencing a housing supply shortage of crisis proportions. To address this crisis, the Legislature declared a statewide housing emergency until 2025 and suspended certain restrictions on development of new housing during the emergency period. (Housing Crisis Act of 2019, Chapter 654, Statues of 2019, section 2(b).) Among other things, the Legislature
suspended the ability of cities and counties to establish or implement any provision that: (i) “Limits the number of land use approvals or permits necessary for the approval and construction of housing that will be issued or allocated within all or a portion of the affected county or affected city,” (ii) “Acts as a cap on the number of housing units that can be approved or constructed either annually or for some other time period,” or (iii)
“Limits the population of the affected county or affected city.” (Gov. Code, § 66300, subd. (b)(1)(D).
Attachment A
April 6, 2021 Item #6 Page 542 of 570
The City’s GMP appears to be designed to assure that housing development in the City
and the provision of public services are closely aligned (City of Carlsbad Mun. Code, § 21.09.010.) However, the City’s GMP establishes growth cap numbers City-wide and by quadrant. Moreover, the City’s GMP mandates that the City shall not approve any General Plan amendment, zone change, tentative subdivision map or other
discretionary approval for a development which could result in the development above
the limit in any quadrant. The establishment of such growths caps and development restrictions contradicts Government Code section 66300, subdivision (b)(1)(D). Accordingly, HCD is of the opinion that such a growth cap under the GMP cannot permissibly be implemented consistent with Government Code section 66300.
Thank you for reaching out to HCD for this guidance. Please contact Melinda Coy of our staff, at Melinda.Coy@hcd.ca.gov, with any questions.
Sincerely,
Shannan West
Land Use and Planning Chief
April 6, 2021 Item #6 Page 543 of 570