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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 --9.)(5-jOr \D-Wvictir---z5o. 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