HomeMy WebLinkAboutLCPA 93-02; Residential Density Increases; Local Coastal Program Amendment (LCPA) (4).
ALEXANDER BOWIE*
JOAN C. ARNESON WILLIAM J. KADI WENDY H. WILES PATRICIA B. GlANNONE ROBERT E. ANSLOW ERIC R. DOERING KENNETH S. LEVY ART0 J. NULITINEN
JANET L. MUELLER KIMBERLY A. McMURRAY
*AF%CEWONALaXFQMTlON
in I ,- \-
~WE, AFWESON, KADI, WILES &L GIA"ONB
A PARTNERSHIP INCLUDING A PROFESIONAL CORPORATlON
ATTORNEYS AT LAW
4920 CAMPUS DRIVE
NEWFORT BEACH, CALIFORNIA 92660
3042.10
November 1, 1993
Planning Commission
City of Carlsbad
2075 Las Palmas
Carlsbad, CA 92009
Re: LCPA 93-02 - Residential Density Increases - Affordable Housing
Honorable Members of the Planning Commission:
This firm represents the Carlsbad Unified School District ("District"). This letter is
submitted with respect to the impacts which the Local Coastal Program (LCP) 93-02 proposal
(the "Proposal") will have on the District's school facilities, and in response to the
conditional negative declaration prepared for the above-referenced actions (the "Negative
Declaration"). The Proposal envisions amending the six Local Coastal Plan (''LCP")
segments (Mello I , Mello 11, Agua Hedionda, East Batiquitos LagoodHunt Properties,
Village Redevelopment Area) of the City to apply a residential guideline (Residential
Guideline No. 19) of the City's Land Use Element of its General Plan, allowing density
increases, through processing of a "Site Development Plan permit," above the maximum
residential densities permitted by the General Plan in order to facilitate the development of
lower-income affordable housing. The Proposal also affects territory within the boundaries of
the District. We request on behalf of the District that approval of the Roposal be
conditioned upon ensuring that any application for a Site Development Plan under the
Proposal be expressly conditional upon adequate public school facilities to meet the demands
from the Proposal's residential density housing increases for low- and moderate- income
housing development, which increases the Proposal envisions would be beyond the applicable
control points set forth in the City's Growth Management Ordinance.
The staff report for the Proposal (the "Staff Report") states that the Proposal is "a
follow-up legislative action" to the City Council's General Plan Amendment to its Land Use
Element ("GPA 92-08") to enable the City to grant density increases above the maximum
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BOW, ARNESON, -I, WILES 61 GTANNON-E
Planning Commission - City of Carlsbad
LCPA 93-02 Project Impacts
November 1, 1993
Page 2
allowable General Plan densities to enable the development of lower-income affordable
housing through processing of a Site Development Plan permit. A Negative Declaration was
previously approved by the City Council on June 17, 1993 for GPA 92-08. The Staff Report
goes on to state that since the Proposal will not revise the environmental findings of the
Negative Declaration for GPA 92-08, the Planning Director has determined that the Proposal
will not have a significant effect on the environment, and that a "Notice of Prior
Compliance" has therefore been issued for the Proposal. This Notice of Prior Compliance
purportedly completes the environmental analysis for the Proposal (see staff report, Page 2).
The District, however, objects to the conclusion that the Proposal will result in no significant
environmental effects, since the Local Facilities Management Plans for each management
zone affected by the Proposal states that District facilities are currently operating at capacity.
The conclusions of the Notice of Prior Compliance also ignore the potential for increased
service demands on school facilities from existing residences relative to population increases
anticipated to result from the approval of the Proposal. The District therefore objects to the
approval of the Proposal without a proper environmental evaluation of the Proposal's effect
on the District's school facilities. This should occur within the context of a properly
prepared Environmental Impact Report ("EIR"), providing for mitigation of all school
facilities impacts to the District from the approval of Site Development Plan permits.
The District's former residential school fee of $2.65 per square foot was essentially
inadequate to address the total costs of schools from residential development (if the District
were to assess such fees on development subject to the Proposal), not including the number
of students to be generated from commercial-industrial development. As a consequence of
the rejection of Proposition 170 by the voters cn Ncwernber 2, 1993 the residential school
fee has now reverted to $1.65 per square foot, leaving additional shortfalls in school funding
costs. State funding to make up for these shortfalls is unlikely. There is an accumulated
backlog of school facility projects on file with the State Allocation Board in the amount of
$4.0 - 5.0 billion dollars.
Therefore, we request on behalf of the District that the environmental effect of such
student generation on the District's facilities be properly addressed in the context of an EIR,
which EIR would further include provisions for full mitigation of those school facilities
impacts upon the District, and that such provisions be expressly made a condition of any
approvals of Site Development Plan permits relative to the Proposal.
Government Code Section 65589.5 , which generally provides that local agencies shall not
It should be noted that
Planning Commission - City of Carlsbad
LCPA 93-02 Project Impacts
November 1, 1993
Page 3
disapprove a housing development project for low- and moderate- income households absent
specified findings, also specifically states that nothing in that section is to be construed to
relieve a local agency from making a required frnding that changes or alterations to such
development project have been incorporated to mitigate or avoid significant environmental
effects identified in a completed EIR, or otherwise relieve the local agency from complying
with the California Environmental Quality Act ("CEQA"). Moreover, Government Code
Section 65589.5 specifically provides that nothing in that section shall be construed to
prohibit a local agency from imposing fees and other exactions otherwise required by law
which are essential to provide necessary public services and facilities to a proposed project,
regardless of whether such project is for the development of low- and moderate- income
housing. Conditioning the approval of the Proposal on mitigation of impacts on the District's
K- 12 school facilities would therefore be appropriate under Government Code Section
65589.5. Therefore, the District is requesting that an additional mitigation
measurekondition be added to the Proposal which requires any developer of property subject
to the Proposal to reach an agreement with the District prior to the City approving a Site
Development Plan permit for that property. Our suggested language for that condition is as
follows:
"Prior to submittal of a request for approval of a Site Development Plan permit,
applicant shall have entered into a school impact mitigation agreement with the
Carlsbad Unified School District. City shall have considered the adequacy of the
school facilities or available means of financing school facilities to meet the needs and
demands of new development proposed in such tentative map to be approved by the
City.
Other mitigation programs which developers, as Site Development Plan permit
applicants, and the District may agree to include the inclusion of properties subject to the
Proposal in a community facilities district, as discussed below.
... .. B. ac- Distl.lr;ts
On January 1, 1993, SB 1287 became effective. SB 1287 made changes to the school
facilities fees legislation which is found in Government Code Section 53080 et seg. and
65995 d. a. ("School Facilities Legislation").
debate between school districts, cities and builders regarding whether or not SB 1287
Previously there had been considerable
Planning Commission - City of Carlsbad
LCPA 93-02 Project Impacts
November 1, 1993
Page 4
overturned the holdings in the Mu, Hal and Murrieta decisions, which stand for the
proposition that a city or county is not limited to statutory school fees when considering
adequate mitigation for legislative projects such as specific plans or zone changes. This
confusion has now been resolved in that the purported repeal of the holding of the Mira.
Proposition 170 by the voters at the state-wide general election of November 2, 1993.
Therefore, the City's requirement for adequate school facilities consistent with its General
Plan Public Facilities Element and its Growth Management Plan is not limited to statutory
school fees when considering adequate mitigation for legislative projects such as specific
plans or zone changes.
and Murrieta decisions was legislatively terminated as a result of the rejection of
Alternatively, it should be noted that subsequent to January 1, 1993, the effective date
of SB 1287, the Supreme Court rendered its decision in Grupe Development Comgmy v,
Superior Court (February 11, 1993) 4 Cal.4th 91 1, 16 Cal.Rptr.2d 226 ("Grupe") . One of
the holdings in the S;rupe decision is that a city or county has the authority to condition new
development on the use of Mello-Roos Community Facilities Districts ("CFDs") to mitigate
school impacts. The Grupe decision is significant in that it acknowledges SB 1287 regarding
the ability of cities and counties to use CFDs for mitigation of school impacts.
The ability of the City to condition new development upon the use of CFDs to
mitigate school impacts is found in Sections 65995(a) and 65995(f). Section 65995(a)
provides that:
Except for a fee, charge, dedication or other requirement authorized under
Section 53080 . . ., no fee, charge, dedication or other requirement shall be
levied by the legislative body of a local agency against a development project . . . for the construction or reconstruction of school facilities.
Section 65995(f) specifically exempts CFDs from the limitations set forth in Section 65995(a)
by providing:
Nothing in this section shall be interpreted to limit or prohibit the use of . . .
(CFDs) to finance the construction or reconstruction of school facilities.
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Bow, ARNESON, KADI, WILES & GIANNONE
Planning Commission - City of Carlsbad
LCPA 93-02 Project Impacts
November 1, 1993
Page 5
This provision makes CFDs a feasible method of school financing in that they have been
specifically exempted from any dollar limitation for school mitigation. SB 1287 did not alter
the authority the City has to require school mitigation through CFDs was never altered by SB
1287, even prior to the failure of Proposition 170 to win approval of the voters.
Section 65996 also lends further support to this proposition and provides that CFDs
are one of the specific methods of mitigating environmental effects relating to the adequacy of
school facilities when the City is considering the approval of or the establishment of
conditions on a development. SB 1287 did not change the ability of the City to use CFDs as
a means of mitigation under Section 65996, and CFDs are specifically exempt from the
statutory dollar limits of Section 65995.
The Supreme Court's decision in Grupe is consistent with this position. In m, a
voted special tax on new development for school facilities, "Measure C" , was challenged.
Measure C had been approved by the voters within the Chino Unified School District prior to
the 1986 legislation which authorized residential school fees originally at $1.50 per square
foot ("School Facilities Legislation"). The Supreme Court distinguished special taxes levied
by a CFD from the special taxes of Measure C. One of the Supreme Court's key arguments
used to support its decision was that Measure C special taxes were included within the scope
of the limitations on "fees, charges, dedications, or other requirements'' found in Section
65995 and that CFD special taxes were specifically excluded from the limitations of Section
65995. m, pg. 2027. Accordingly, the Supreme Court held that the limitations of
Government Code Section 65995 applied to Measure C, and therefore Measure C was invalid
because the school district was also levying the maximum school fee allowed by Section
65995. It should also be noted that the Supreme Court's decision was rendered while
acknowledging the enactment of SB 1287.
The holding in is a significant development with respect to confirming the
and Murrieta decisions, and this is the first time the
city's ability to condition new development through the use of CFDs. The Supreme Court
denied review of the m,
Supreme Court has addressed the issue of school facilities fees as authorized under
Government Code Section 53080 and 65995. Both before and after the effective date of SB
1287, the City has had the authority to condition new development upon the use of CFDs to
mitigate school impacts. The Supreme Court's decision in Grupe lends additional support to
such authority.
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Born, ARNESON, m~, WILES 6s GIANNONE
Planning Commission - City of Carlsbad
LCPA 93-02 Project Impacts
November 1, 1993
Page 6
C. y With Gwral Ph.
The City's General Plan, Public Facilities Element as well as the City's Growth
Management Element contain provisions which require availability of schools prior to
legislative approvals, including specific plans and zone changes. For example, the LFMPs
for each of the management zones affected by the Proposal require as a "special mitigation
condition'' that all development conform with the District's stated performance standards,
which requires school capacities to meet projected enrollment requirements within each zone,
as determined by each school district, prior to projected occupancy. Absent adequate
mitigation the District's facilities cannot meet the projected enrollment requirements when
development approvals result in the generation of additional students within the existing
control points of the City's Growth Management Ordinance, let alone when the Proposal will
authorize residential development in densities exceeding those set forth in the Growth
Management Ordinance.
It should be noted that Government Code Section 65300.5, requires a finding of
consistency between a specific plan (such as the Proposal) and the City's General Plan prior
to approval of that specific plan. As previously stated Government Code Section 65589.5
specifically provides that nothing in that section shall be construed to prohibit a local agency
from imposing fees and other exactions otherwise required by law which are essential to
provide necessary public services and facilities to a proposed project, regardless of whether
such project is for the development of low- and moderate- income housing. In order to fully
mitigate the impacts from the Proposal the District requests that the City require that
developers of property authorized to exceed the City's maximum density standards under the
Proposal enter into a mitigation agreement acceptable to the District which fully mitigates the
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Born, ARNESON, -1, WILES & GAN"E
Planning Commission - City of Carlsbad
LCPA 93-02 Project Impacts
November 1, 1993
Page 7
impacts to be incurred by the District as set forth above.
We would be pleased to provide you with any additional information you may require.
Very truly yours,
BOWIE, MESON, KADI,
WILES & GIANNONE
By:
Alexander Bowie
cc: John Blair
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