HomeMy WebLinkAbout2020-05-13; Housing Element Advisory Committee; ; STATE OF CALIFORNIA LETTER REGARDING GROWTH MANAGEMENT PLAN MORATORIUM PROVISIONAgenda item 5
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) 26 3-2 911 I FAX (916) 263-7453
www. hcd.caaov
April 17, 2020
Celia A. Brewer, City Attorney
Office of the City Attorney
City of Carlsbad
1200 Carlsbad Village Drive
Carlsbad, CA 92008
Dear Celia Brewer:
RE: Housing Crisis Act of 2019, Request for Opinion Under Government Code
Section 66300 et seq.
The purpose of this letter is to assist the City of Carlsbad (City) in the implementation of
the Housing Crisis Act of 2019 (Gov. Code, § 66300) as requested in your letter dated
February 27, 2020. In that letter, the City requested the California Department of
Housing and Community Development's (HCD) opinion as to the enforceability of a
moratorium proposed pursuant to the City's Growth Management Program (Proposition
E or GMP). For the reasons explained below, HCD finds that the housing development
moratorium adopted pursuant to the City's GMP would be impermissible under
Government Code section 66300. Should the City decide to adopt a moratorium,
notwithstanding this opinion, HCD reminds the City that it cannot legally enforce such a
moratorium before obtaining HCD's approval pursuant to Government Code section
66300, subdivision (b)(1)(B)(ii).
HCD's opinion is based on the mandatory criteria established by the Legislature with the
passage of SB 330 in 2019, 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 impose moratoria on housing
development, including mixed -use development, "other than to specifically protect
against an imminent threat to the health and safety of persons residing in, or
within the immediate vicinity of, the area subject to the moratorium." (Gov. Code,
§ 66300, subd. (b)(1)(B), emphasis added.)
Celia A. Brewer
Page 2
The Housing Crisis Act of 2019 does not define "imminent threat to the health and
safety of persons." HCD does not consider, however, that general concerns about the
health and welfare of the citizenry —including traffic conditions that cause minor
delays —present an imminent threat to health and safety. The word imminent suggests
something that will happen in the very immediate future. (Black's Law Dictionary (11 th
ed. 2019) ("Imminent" means "threatening to occur immediately; dangerously
impending" or "[a]bout to take place."); Webster's New World College Dictionary (4th ed.
2010) ("Imminent" means "likely to happen without delay; impending; threatening").)
Imminent threats to the "health and safety of persons" implies an impending or
immediate threat to human life, human health, or human safety. It is a much narrower
consideration that notions of "health and welfare" that motivated the adoption of the
City's GMP.
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.) Nothing in the City's GMP or in its Growth Management Ordinance (City of
Carlsbad Mun. Code, Chapter 21.90) indicate that they were adopted with the intent to
avert imminent threat to the health and safety of the residents of Carlsbad. Neither do
the GMP or the Growth Management Ordinance indicate that imminent threats to health
and safety are a mandatory consideration in deciding whether to impose such a
moratorium. The purposes of the ordinance are reflected in its placement in the
Municipal Code. The ordinance is housed in the Zoning Code, under the chapter for
Growth Management, rather than under, for instance, Health and Sanitation, which
includes Emergency Services and Health and Sanitation. The overall purpose of the
Zoning Code is described as "to provide the economic and social advantages resulting
from an orderly planned use of land resources." (City of Carlsbad Mun. Code, §
21.02.010.)
In this case, the City's proposed moratorium would prohibit the issuance of any
development or building permits in Local Facilities Management Zone 15 ("LFMZ 15")
until four (4) identified street facilities meet the vehicle level of service ("LOS")
performance standard of D or the necessary improvements are guaranteed. (See City of
Carlsbad Mun. Code, § 21.90.080.) LOS D simply refers to the rate at which traffic
flows on a roadway, and at LOS D there is no longer free flow of traffic but instead
congestion that borders on unstable flow. (City of Carlsbad, Transportation Impact
Analysis Guidelines (April 2018), p. 22.) While such congestion may be uncomfortable,
there is no indication in the City's GMP or in the City's Transportation Impact Analysis
Guidelines that such a standard represents an imminent threat to the health and safety
of the residents of LFMZ or those in the immediate area. Accordingly, HCD is of the
opinion that such a moratorium cannot permissibly be adopted or enforced consistent
with Government Code section 66300.
Celia A. Brewer
Page 3
Thank you for reaching out to HCD for this guidance. We look forward to hearing from
the City as to the action it takes on its proposed moratorium. Please contact Melinda
Coy of our staff, at Melinda.Coy@hcd.ca.gov with any questions.
Sincerely,
3"K 64jwi�
Zachary Olmstead
Deputy Director