HomeMy WebLinkAbout2023-12-04; City Council Legislative Subcommittee; ; 2024 State and Federal Budget Priorities and State Legislative ProposalsLEGISLATIVE SUBCOMMITTEE
Meeting Date: Dec. 4, 2023
To: Legislative Subcommittee
From: Jason Haber, Intergovernmental Affairs Director
Staff Contact: Jason Haber, jason.haber@carlsbadca.gov
Subject: 2024 State and Federal Budget Priorities and State Legislative Proposals
District: All
Recommended Action
Discuss and determine proposed state and federal budget priorities and state legislative proposals
to recommend to the City Council.
Discussion
This item will provide an opportunity to discuss Subcommittee recommendations and to provide
feedback to staff to prepare for future City Council consideration of these topics.
Staff is requesting Subcommittee input and feedback to help staff further develop potential 2024
state and federal budget requests. Project types that may be well-suited to receiving state and/or
federal support in the coming year include those that address homelessness, affordable housing,
transportation and mobility improvements, public safety enhancements, and climate protection
and resiliency.
Based upon preliminary discussions with city staff, and consistent with the priorities laid out in the
city's Strategic Plan, the following projects have been identified as potentially competitive
opportunities to receive state and/or federal funding in the coming year:
Carlsbad Water Recycling Facility Improvements (District 3)
Chestnut Avenue Underpass Public Art (District 1)
El Camino Real Widening -Arena I Drive to La Costa Avenue (District 4)
Electric Vehicle Charging Stations (All Districts)
Fire Station 7: Site Acquisition and Design (District 2)
La Costa Avenue Traffic Improvements (District 4)
La Posada de Guadalupe Homeless Shelter Expansion (District 2)
Lowering the Railroad Tracks in the Village (District 1)
Maerkle Reservoir Solar Project (District 2)
Camino De Los Coches and Maverick Way Intersection Improvements (District 4)
Monroe Street Pool Replacement (District 1)
Robertson Ranch Park Development (District 2)
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Safe Routes to School Improvements: Bike, Vehicle and Pedestrian Safety (All Districts)
Schulman Auditorium and Cannon Art Gallery Improvements (District 3)
Sea Level Rise Adaptation and Shoreline Preservation (All Districts)
South Carlsbad Blvd. Climate Adaptation -Manzano Drive to Island Way (Districts 2 & 3)
Stagecoach Park Community Garden Project (District 4)
Village Decorative Lighting Projects (District 1)
Staff is also requesting Subcommittee input and feedback to help staff develop potential 2024
legislative proposals for the city to sponsor, if any. The following potential bill sponsorship ideas
have been identified by staff and support policy priorities identified in the Strategic Plan:
A proposal to amend the Vehicle Code to establish requirements for E-bike rider safety
training and licensing.
A proposal to amend the Government Code to add threats to cybersecurity as a Brown
Act closed session exception.
A proposal to amend the Government Code to allow for the posting of legal advertising
and public noticing via electronic and digital media, rather than in newspapers.
A proposal to amend the Civil Code to identify the use of restrictive covenants as an
acceptable instrument for documenting open space dedications, including for mitigation
purposes.
A proposal to amend the Government Code to clarify density bonus law regarding the
replacement of existing affordable housing and the application of local inclusionary
housing requirements.
The Subcommittee requested additional information about the proposal to amend the Civil Code to
identify the use of restrictive covenants as an acceptable instrument for documenting open space
dedications, including for mitigation purposes.
California resource agencies generally prefer to use conservation easements, rather than restrictive
covenants, when placing restrictions on land to preserve the area from future development and
require management of the onsite habitat. One of the reasons the agencies prefer conservation
easements is because, in their view, conservation easements are more likely to remain recorded on
the property in perpetuity than a restrictive covenant. The resource agencies have argued that
restrictive covenants are not guaranteed to transfer to subsequent property owners and therefore
have insisted on conservation easements.
Challenges with conservation easements include:
Identifying a willing grantee. State agencies are no longer willing to serve as the grantee.
Alternatively, a non-profit organization which has land preservation as its primary
purpose can serve as grantee, but there is no guarantee the entity will exist in
perpetuity.
Identifying the party with rights to enforce the granted easement.
Determining which party has the obligation to maintain and protect the easement area
(the preserved land).
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Benefits of restrictive covenants include:
Simplified administration and streamlined processing because they do not require a
grantee (i.e., another party willing to accept the interest).
Property owners, including the city, can execute and record a restrictive covenant
independent of other agencies. Currently, it takes years to process conservation
easements because multiple agencies can be involved and have different templates.
-The property owner, including the city, can place a restrictive covenant on its own land
without transferring a property interest.
-The city and/or a state or federal resource agency can be named as a third-party
beneficiary -giving them the right, but not the obligation, to enforce its terms.
To address the state's primary concern with restrictive covenants, the California Civil Code could be
amended to ensure restricted covenants run with the land and are enforceable against successive
owners. This would help ensure that the obligation to preserve land in its natural state in perpetuity
survives a transfer of ownership and eliminate the long delays associated with conservation
easements.
Example
In 2016, the city entered into a Streambed Alteration Agreement with the California Department of
Fish and Wildlife, for the city to perform routine maintenance of Calavera Dam. As a condition of
the permit, and the agreement, the city was required to preserve a minimum of 3.63 acres. To
preserve the mitigation area, the city was also required to record "a Conservation Easement or
other type of formal Deed Restriction approved by CDFW and managed in perpetuity." All the other
project conditions have been satisfied except for the requirement that the land be preserved in
perpetuity. City staff proposed satisfying the final requirement by using a restrictive covenant,
however the California Department of Fish and Wildlife insisted on an easement, in large part,
because of their concern that if the city were to transfer the land or an interest in the land to a third
party, a restrictive covenant might not transfer to a future property owner (i.e., the restricted
covenant may not run with the land).
Further information about this issue is available in Exhibit 1.
Next Steps
Subcommittee recommendations regarding bill sponsorship proposals and state and federal budget
priorities will be presented for City Council's consideration and direction to staff on December 12,
2023.
Exhibits
1. 2008 Conservation Easements and HMP Implementation Briefing Paper
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Exhibit 1
CONSERVATION EASEMENTS AND HMP IMPLEMENTATION
BRIEFING PAPER
JANUARY 16, 2008
Purpose of Paper
The following paper explores the processing of Conservation Easements.
The paper also discusses the current status of a standardized Conservation
Easement template and the issue of third party beneficiaries. Planning
Department staff is seeking direction from City Council on the issue
related to Conservation Easements.
Background and Statutory Requirements
In order to implement the Multiple Habitat Conservation Plan (MHCP) and
Habitat Management Plan (HMP), areas to be contained within the.··
preserve must be protected from future development, have restrictions on
allowed uses, and managed and monitored in accordance with MHCP
standards. The instrument required to ensure these provisions is a
Conservation Easement.
California Civil Code allows the creation of Conservation Easements to
restrict the uses on a property and require management of the onsite
habitat. Civil Code Section 815.3 stipulates that the grantee of the
easement must be a state or local governmental entity or a non-profit
organization which has land preservation as its primary purpose.
In accordanc_e with practices of the Wildlife Agencies, the City's HMP
Ordinance requires that a Conservation Easement be placed over all
preserve lands created through HMP implementation. The Conservation
Easement, at a minimum, must include the following:
Identification of the grantee, underlying land ownership, and third
party beneficiaries including the City and Wildlife Agencies;
Definition of permitted and prohibited uses;
Description of grantor's duties and responsibilities contained in the
preserve management plan; and
Declaration of enforcement provisions.
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CONSERVATION EASEMENTS AND HMP IMPLEMENTATION
January 16, 2008
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There are typically two scenarios for land ownership and preserve
management. The first involves the developer, Homeowner's Association
(HOA), or other party owning the land and granting an easement to the
preserve manager (a non-profit organization) for management and
monitoring. In this case, the developer is the grantor and the preserve
manager is the grantee. The second entails the preserve manager taking
fee title ownership of the preserve. In this case, the preserve manager is
granter and another state or local governmental entity must be grantee.
As discussed below, these two scenarios create different issues with
regard to who will assume the role of grantee of the easement.
To provide management and monitoring for smaller habitat properties, a
third scenario was developed. In these cases, the HOA would own the
property, grant an easement to the City, and contract with a qualified
third party to manage and monitor the habitat. To date, one developer
has opted for this scenario and several other property owners are
currently pursuing the approach.
History of Conservation Easements
The Wildlife Agencies have required Conservation Easements as part of
habitat impact mitigation for some time and each agency has
developed their preferred template(s). Also, the preserve managers,
such as Center for Natural Lands Management and Helix Community
Conservancy, have developed templates and/or have requirements for
certain language within the easement.
When the City began to implement the HMP and require the easements,
it became apparent that the agency templates were not consistent and,
at times, were contradictory. There were also issues of City concern that
were not addressed in these templates (such as the Grantor's right to
grant future easements if needed for public health, safety, and welfare).
This lack of commonly accepted easement language and structure has
caused significant delays in project processing for many local
development projects. Exacerbating this challenge is the uniqueness of
each project and, therefore, the customized language needed to
address project-specific issues regardless of the template used. In the
past, it was common for the Agency permits to specifically require
Agency approval of the Conservation Easement language.
Since early 2005, City staff have unsuccessfully attempted on numerous
occasions to bring the agencies together to develop a mutually
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CONSERVATION EASEMENTS AND HMP IMPLEMENTATION
January 16. 2008
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acceptable easement template. In order to allow development
processing of projects with HMP requirements to continue, the City
Attorney developed Conservation Easement templates for the two land
ownership scenarios discussed above. These easements take the
following structure:
For projects where the developer or HOA would own the land, _it
would be the grantor and the grantee would be the preserve
manager;
For projects where the preserve manager would own the land in fee
title, the grantor would be the preserve manager and the grantee
would be the City (since the land owner cannot also hold the
easement).
As mentioned above, there are certain responsibilities for the grantor and
grantee established by the Conservation Easement. After reviewing these
responsibilities in detail, and discussing the issue with other jurisdictions and
organizations, City staff is now asking for City Council direction regarding
the easement language currently in use and the City's role as grantee.
Easement Grantee Responsibilities
As described above, when the preserve manager owns the property, they
need to grant the easement to another party since the easement merges
with the fee if both are held by the same party. Historically, when the
Department of Fish and Game issued the habitat take permits, they
agreed to accept the role as Grantee. Now that the City is responsible for
issuing the habitat take permit and because the Wildlife Agencies protest
that they have insufficient money and resources, the Agencies believe
the City is now responsible for accepting Grantee status. There are,
however, concerns associated with being the Conservation Easement
grantee.
The concerns relate to the jurisdictions' responsibility if the conservation
efforts are lacking. While not explicitly stated in the easements, there is a
common concern that Grantee status would be used by the Wildlife
Agencies and/or environmental advocates to compel the Grantee to
make up any financial shortfalls in perpetual management and
monitoring. Also the Grantee would be expected to monitor and enforce
violations of the terms of the easement.
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CONSERVATION EASEMENTS AND HMP IMPLEMENTATION
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Much of the discussion about the City assuming a grantee role is similar to
the issue of the City's role in implementing the HMP. Once a developer
follows the requirements by acquiring a preserve manager, recording a
Conservation Easement, and creating an endowment to fund
management of the habitat, the developer has fulfilled their condition of
approval and the City is presumed to have fulfilled its HMP obligations. If
at some later date the preserve manager ceases management (as was
the case with The Environmental Trust bankruptcy), the question arises of
which agency, if any, is responsible to ensure habitat management in
perpetuity.
While the HMP and Implementing Agreement do not speak directly to this
issue, Section 10.3 of the Agreement stipulates that the City shall not be
required to provide additional land or financial compensation in the
event of "Unforeseen Circumstances". The Wildlife Agencies have
contended that the City, as permittee of the state and federal permits, is
ultimately responsible for the HMP and, therefore, would need to find a
solution to the issue described above. The City has stated that the
Implementing Agreement clearly defines the City's duties and
responsibilities and states that no further financial burden should fall on the
City for HMP implementation other than that stated in the Agreement.
While the Environmental Trust bankruptcy showed that the Agencies were
willing to take title to several of the abandoned properties without
requiring any City contributions, there is no guarantee that this scenario
would be duplicated in the future should the issue arise again.
Third Party Beneficiaries
Another important component of the Conservation Easements is the listing
of third party beneficiaries. Third parties are not subject to the
responsibilities of the easement (such as property management and use
control) however they have the ability to enforce the easement if the
granter or grantee fails to perform. Third parties have the "rights" but not
the "obligations."
When the Wildlife Agencies or US Army Corps of Engineers (ACOE) issue a
permit that requires a Conservation Easement, they typically require third
party beneficiary status. Since the City is now issuing most of the permits
allowing impacts to habitats, the City has required that it be named as a
third party beneficiary in Conservation Easements as well. Typically, the
City requires that all signatories of the HMP Implementing Agreement
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CONSERVATION EASEMENTS AND HMP IMPLEMENTATION
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(namely US Fish and Wildlife, California Department of Fish and Game,
and the City) be included as third party beneficiaries.
Wildlife Agency staff has stated that they should review and approve the
easement language if they are listed as a third party beneficiary. This
request has led to the same cyclical comments experienced during the
easement template discussions with similar, inconclusive results. Since
third party beneficiaries are not legally responsible to enforce the
easement, and the level of habitat management is already established
by the MHCP and HMP, the City has been processing the Conservation
Easements without further agency review. Nonetheless, the issue of the
third party beneficiary remains.
Issues Discussion
Given the current status of Conservation Easements, several significant
issues arise. These are:
l . No standardized Conservation Easement templates exist that are
accepted by all Wildlife Agencies, local jurisdictions, and preserve
management entities.
The City will continue to work with the Wildlife Agencies and
preserve management entities to devise standardized easement
templates. Until templates are available, the City will continue to
use its own template whenever possible, and customize the
language as appropriate for specific projects.
2. As detailed above, it is possible that the responsibilities of the
grantee may create additional liability for enforcement and
management expenses.
The City could avoid this potential liability by having the role of
Grantee for Conservation Easements be held by on agency or
organization whose primary purpose is the conservation of natural
open space lands. In the cases where the preserve manager will
own the land in fee title, the City could urge the California
Deportment of Fish and Game (DFG) to accept the role as
easement Grantee.
It should be noted that, in order to comply with the requirements of
the City's HMP Ordinance and standard project conditions of
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CONSERVATION EASEMENTS AND HMP IMPLEMENTATION
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approval, a Conservation Easement must be recorded prior to
issuance of a grading permit. If DFG assumes the role of easement
Grantee, the recordation of the easement is out of the City's or
developer's control and grading permit issuance would be delayed
until DFG executes and records the easement. In the past, DFG has
failed to record easements for which it is the Grantee: for example,
the Conservation Easement covering the City's off-site habitat
acquisition for the golf course has yet to be recorded. Unrecorded,
the easement fails to give notice that the easement exists and thus
does not function to protect the preserve.
The impacts of non-recorded Conservation Easements and lack of
DFG processing on local development could be significant.
Without a recorded easement, a developer would not be able to
secure grading or building permits even if they have recorded their
subdivision map. As seen with the City's golf course mitigation
easement, it could take DFG a number of years to record an
easement (if ever} which would result in a commensurate delay in
development.
3. The need for third party beneficiary approval of Conservation
Easement language has not been resolved.
According to the City Attorney, there is no legal requirement for
third party beneficiaries to sign an easement. Therefore it is
recommended that approval of easement language not be sought
from those Agencies with only third party beneficiary status. Given
the City Attorney determination, the City will continue to fist the
appropriate agencies as third party beneficiaries without requiring
their signature or approval of the easement document.
4. There are several Conservation Easements currently in process with
older, pre-HMP conditions of approval that are proposing to name
the City as Grantee. There are also several more projects getting
ready to prepare Conservation Easements requiring direction on
how to proceed.
At the inception of the HMP, the City was anticipating the potential
of taking fee title ownership of the HMP preserve areas created
through private development. Therefore, the conditions of
approval for developments during this time make reference to the
City taking ownership and maintenance responsibility of the
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CONSERVATION EASEMENTS AND HMP IMPLEMENTATION
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preserve areas. The developer's representatives state that their
projects should not be delayed while the City decides on its role as
Grantee status and the easements should be approved as written.
5. There is no standard process for accepting and executing
Conservation Easements.
To date, there have been eight (8) Conservation Easements
processed with the City as Grantee. All of these easements followed
the same process as other easements, that being acceptance of
the grant deed easement by the City Clerk.
Section 11 .04.050 of the Carlsbad Municipal Code delegates
authority from the City Council to the City Manager for acceptance
of easements, deeds, or grants conveying other interests in real
property. The ordinance references the California Streets and
Highways Code for this delegation of authority. The City Attorney's
office has opined that this delegation was intended to apply only to
easements and improvements associated with a subdivision of land
(e.g. street easements, storm drain easements) and not for
Conservation Easements. Therefore, if the City is Grantee for a
Conservation Easement, the acceptance of that role must be
approved by the City Council unless another process is created
through a Municipal Code Amendment to extend Section 11.04 .050
(or some other section) to apply to Conservation Easements.
6. There are no alternative encumbrances acceptable to the Wildlife
Agencies that could protect the preserve area in a similar fashion
as the Conservation Easement.
City Attorney and U.S. Army Corps of Engineer legal staff have
discussed the potential use of a Restrictive Covenant instead of a
Conservation Easement. The Restrictive Covenant would be
recorded on the title of the land and provide a permanent
restriction on the allowable uses however it would be executed and
recorded by the property owner, without need for a Grantee.
Provisions could be added to the Covenant regarding
management and monitoring of the land in accordance with the
HMP and MHCP. The City and Wildlife Agencies could also be
named as third party beneficiaries to enable enforcement of the
restricted uses and management/monitoring.
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In preliminary discussions with US Fish and Wildlife and California Fish and
Game, Wildlife Agency biologists have expressed concern about the use
of a Restrictive Covenant, however the City has yet to explore the
alternative with Wildlife Agency legal staff.
Recommendations
Based upon the issue discussion and analysis above,
1. Due to the possibility of increased exposure to the City, Planning
Department staff recommends that the City Council provide
direction as to the appropriate entity to assume the Grantee role for
subsequent Conservation Easements required for HMP
Implementation.
Planning Department staff believes it is necessary for the City
Council to provide policy direction regarding the dilemma of the
potential for increased City exposure versus the strong potential for
substantial delays in development project implementation which
would also include City projects.
Staff is proposing for consideration three alternatives to the
Conservation Easement Grantee issue:
a. The City continues to serve as Grantee on Conservation
Easements whenever needed.
b.
Dec.4,2023
If this alternative is chosen, staff is recommending that
Council direct staff to process a Municipal Code Amendment
that would allow Conservation Easements to be accepted by
staff, similar to the allowance for other easements. Staff is
also recommending that clear language be added to all
Conservation Easements that the Grantee is not responsible
to make up any shortfalls in management or monitoring and
has no financial responsibilities for the property.
The City does not serve as Grantee on Conservation
Easements.
The City could request that DFG serve as Grantee or
mandate that the role be filled by a non-profit land
management entity. If this alternative is chosen, there may
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C .
still be special cases when the City must accept Grantee
status for the development project to continue. In these
cases, the Council could direct staff to process a Municipal
Code Amendment that would allow Conservation Easements
to be accepted by staff or continue to require City Council
approval prior to City acceptance of the easement.
Direct staff to explore the use of Restrictive Covenants as a
replacement for Conservation Easements.
If this alternative is chosen, amendments to the HMP
Ordinance would be necessary to allow the Restrictive
Covenants and list minimum requirements for the document.
2. Regardless of the approach for future Conservation Easements, staff
is recommending that the easements currently in process be
allowed to continue with the City as Grantee. As discussed above,
this would necessitate City Council approval.
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