Atherton City Council
September 18, 2024

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(except for school fees, discussed above, which were excluded from the analysis).

The 21 Elements Fee Survey revealed all jurisdictions in San Mateo County who responded to the survey (18 including Atherton) had development fees for single family homes that were higher than Atherton’s; some had fees 2 and 3 times higher.

With fees substantially lower than those of adjacent communities, they do not pose a constraint on housing construction.

3.515 Processing and Permit Procedures
The following table describes the Town's permit process procedures in general. These processes are required for the development of all housing for all income categories.

Only two levels of residential permit processing are available; a Conditional Use Permit or a Building Permit. The Town does not have an Architectural/ Design Review and does have a staff-level approval process for the construction of new housing which helps both streamline and expedite the permitting process.

Most residential construction, including accessory dwelling units and guest houses (estimated 90 percent to 95 percent of building permits) does not require Planning Commission action or permits. Only Planning Department review of the project for conformance with Town zoning standards and Building Department review for Building Code conformance are required. These reviews for zoning clearance by the Planning Department and permit issuance by the Building Department can be processed concurrently, allowing for a much more efficient and streamlined permitting process than may be typically found in other jurisdictions. Staff routinely provides first round plan review comments within 10-working days and follow-up comments within 5- working days.

Where Conditional Use Permits or Special Structure Permits are required, the process involves submitting an application to the Planning Commission for review of the proposal. Preliminary site plans and elevations are required as part of the submittal.

An advertised public hearing is held by the Planning Commission with mailed notice to all property owners within 500 ft. of the proposed project. Planning Commission meetings are held monthly and the Planning Department has a significantly quick turnaround time from the point of an application submittal to scheduling the item on a Planning Commission agenda. Items are typically heard within 6-weeks of application submittal. Upon Planning Commission approval, plans may be submitted to the Building Department for Building Plan Check and Building Permit issuance.

Building permits must be secured before commencement of any residential construction, reconstruction, conversion, alteration or addition. Approval of permit applications is based on conformity with the Uniform Building Code and the Zoning Ordinance, although the Town has the power to grant variances from the terms of the Zoning Ordinance within the limitations provided in the Ordinance.

The Building Permit process has very little impact on the development of above moderate-income housing in Atherton as evidenced by building activity and the number of replacement housing units being constructed. The Building Department

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currently has approximately 800 active permits and approximately 25-30 houses are demolished and replaced with new houses each year. While removal of the process and reduction of fees might function to reduce costs slightly, there are many other factors that act to deter development of such housing. Factors such as the high cost of land (currently at about $7-$8 million per acre), the limitations on density and nonavailability of funds (e.g., in the private educational institutions and from local public sources) are the most likely deterrents to the development of low and moderateincome housing. The Town will amend the Zoning Code to address the limitations on density with the creation of two new multifamily zoning districts, one at 20 units per acre and the other at 10 units per acre. This significant step will encourage development of affordable housing and provide more housing choices and opportunities for the community.

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TABLE HE-8: RESIDENTIAL PERMIT PROCESSING PROCEDURES AND TIMES Residential Permit Processing Procedures and Times
Type of
Construction Use Permit Building Permit
Plan.

Commission
Public Hearing
Typical Time
for Staff Plan
Check &
Building Permit
Issue (weeks)
Single Family
Residential X 4
Accessory
Dwelling Unit X 4
Guest House X 4
Housing on
PFS Sites X X X 9
The Town does not have any overlay zones such as community plan implementation zones, hillside overlay zones or environmentally sensitive areas.

Atherton has only two residential zoning districts; R-1A where the minimum lot size is 1 acre and R-1B where the minimum lot size is 13,500 square feet. Single family detached dwelling units, second dwelling units and guest houses are permitted by right in these districts. Attached and multiple family dwelling units are not currently permitted in either district. All construction in PFS zoning districts, including attached and multiple family dwelling units and single room occupancy units require a conditional use permit. Housing in PFS zoning districts is permitted when the residential use is associated with a conditional or permitted use in that district. Such residential uses are typically associated with private schools. Housing in POS zoning districts is allowed for caretaker housing associated with the primary use on the site.

3.516 Constraints on Persons with Disabilities
Chapter 17.17 of the Atherton Municipal Code entitled “Accessibility” provides for reasonable accommodation to people with disabilities and complies with the Fair Housing Amendments Act of 1988 and the California Fair Employment and Housing Act in the application of the Town’s land use, zoning, rules, policies, practices, and/or procedures.
“A request for reasonable accommodation may include a request for modification or exception to Town land use, zoning or building regulations, rules, policies, practices, and/or procedures that would eliminate regulatory barriers and provide a person with a disability equal opportunity to housing. The procedure provides for a staff-level process, conducted by the Town Planner, when the accommodation is related to a physical improvement that cannot be constructed to conform to a Town standard.

Should it be determined that the request is not at a staff-level it is referred to the Planning Commission. The Town Planner is required to make a written determination within 30 days after receipt.” These applications are routinely approved ministerially

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by staff for a determination of consistency with the purpose and intent of the Ordinance which states, “this chapter provides a process for individuals with disabilities to make requests for reasonable accommodation for relief from the various land use, zoning, or rules, policies, practices, and/or procedures of the town. It is the policy of the town, pursuant to the Federal Fair Housing Act (as amended), to provide people with disabilities reasonable accommodation in rules, policies, and procedures that may be necessary to ensure equal access to housing.” The application submittal materials and process are objective, streamlined and efficient, and require only a brief written narrative describing the development standard in which an exception is requested, why the reasonable accommodation is being requested and a brief statement from the applicant’s doctor stating the person’s disability. To further reduce any potential constraints, the Town will modify the language within Chapter 17.17 to remove any potential discretionary review from the Planning Commission for such requests and to specify all such requests shall be approved administratively by the Town Planner.

Chapter 17.17 also provides a process for requests for reasonable accommodation relating to increased occupancy of a group home.

The Town does not define the term “family” and does not limit the number of unrelated individuals who may reside in a residence. Group homes for six or fewer residents are allowed by right in the single-family residential districts. The Town does not have any spacing or concentration requirements. The Town has only two residential zoning districts; both of which are for single family residences. Therefore, allowances for group homes with more than six residents specifically for the disabled in other zoning districts are not necessary. No changes to parking standards are required to address the needs of persons with disabilities because the Town does not impose any parking standards.

Atherton uses the 2022 California Building Code. The adopted Code does not include any amendments that might reduce the ability to accommodate persons with disabilities. Accessibility retrofits are handled through the standard permit process.

However, permits are not required unless thresholds of health, life, and safety are exceeded. The California Building Code provides an option for meeting code requirements, whereby an applicant submits an alternative “methods and means” checklist to the Building Official noting the proposed design, the conventional design, and the rationale for the request.

The Town will encourage developers to include accessible housing units in new multifamily housing developments.

3.520 Non-Governmental Constraints Analysis

3.521 Land Prices

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Land scarcity and high real estate prices are the most significant non-governmental constraints to affordable housing in Atherton. There are virtually no vacant lots in Atherton. Land currently sells for approximately $7-$8 million dollars per acre and can only be acquired by purchase of a developed parcel or by subdividing the property, which also most likely involves the removal of an existing residence. The inventory of sites suitable for residential development described in section 3.4 shows a potential of approximately 91 new parcels that can be created by subdividing existing developed parcels.

3.522 Construction Costs31
Construction costs include both hard costs, such as labor and materials, and soft costs, such as architectural and engineering services, development fees and insurance. For multi-family homes in San Mateo County, hard costs account for approximately 65 percent of the building cost and soft costs average around 21 percent (the remaining 14 percent is land costs). For single family homes, hard costs often are roughly 44-59 percent of the total cost, soft costs are 14-17 percent, and land is 24-42 percent.

While multifamily construction is less relevant in most of the town, it is relevant on school facilities. According to housing developers in San Mateo County, construction costs for multi-unit buildings vary based on the form of parking (structured vs. surface) in addition to other environmental factors such as topography, pre-existing structures etc. For smaller and larger multi-unit buildings, costs can range from $633-$1,174 per square foot.

For a 2,600 square foot single-family home the average cost of construction is approximately $600/sf. For a more expensive, 5,000 square foot home, however, the construction costs can average $800-1,000/sf. In general, soft costs add another approximate 20-25% to the subtotal. Such costs are not particularly higher in Atherton than in other surrounding jurisdictions.

3.523 Availability of Financing
The availability of capital to finance new residential development is a significant factor that can impact both the cost and supply of housing. Two types of capital are involved in the housing market: 1) capital used by developers for initial site preparation and construction and 2) capital for financing the purchase of units by homeowners and investors. Interest rates substantially impact home construction, purchase, and improvement costs. Fluctuation in interest rates can have a significant impact on costs for construction or purchase, as well as impact whether a potential buyer can qualify for a loan. Following several years of historically low interest rates, the expectation is that interest rates are likely to rise in 2022 and beyond.32 31 Century Urban LLC, Memo to Baird + Driskell, San Mateo and Santa Clara Counties Development Cost & San Mateo Unit Mix Research, April 7, 2022. 32

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Because interest rates are determined by national policies and economic conditions, there is little that local governments, including the Town, can do to affect the interest rates. In general, financing for both construction and long-term mortgages is available in San Mateo County, subject to normal underwriting standards.

Table 4-11 summarizes the total number of home loans applied for, approved (and originated), and denied within the San Jose-San Francisco-Oakland MSA. In 2020, a total of 97,147 applications for home loans were submitted within the MSA. Of these loan applications, over 66% were approved and originated while approximately 11% of applications were denied.

While there are many potential reasons for denial, this percentage of loan approvals and denials vary throughout the MSA by income group. As anticipated, there is a direct relationship between household incomes and home loan application approvals and denials. As depicted in Table HE-9 as household incomes rise, the percentage of home loans denied decreases and the percentage of loans approved increases. Similarly, as household income falls, the percentage of home loan applications denied increases and the percentage of loans approved decreases. This data suggests it is much more difficult for lower-income households in the MSA to obtain home loan financing than higher-income households. This difficulty has the potential to directly affect the production and rehabilitation of housing units serving lowerincome households, throughout the MSA.

TABLE HE-9 DISPOSITION OF APPLICATIONS BY INCOME OF APPLICANT 2020 Income Group Total Loan
Applications
Loans
Originated
Applications
Denied
Percentage
Denied
<50% MFI 6,876 3,095 1,924 28%
50-79% MFI 12,351 7,792 1,793 14.5%
80-99% MFI 5,051 3,371 543 10.7%
100-119% MFI 15,158 10,462 1,502 9.9%
>120% MFI 57,710 39,177 5,059 8.8%
TOTAL 97,147 63,897 10,821 11.1%
Most homes in Atherton are custom-built homes funded by individual households. Fluctuations in recent years due to the pandemic have caused caution among lenders and may have lasting effects on the availability of financing throughout this Housing Element planning period.

Financing for this type of construction is more difficult to obtain now that banks have increased their requirements. While financing is no more of a constraint in Atherton than in other 4 Kiplinger. Interest Rates: The Fed Gets Aggressive, April 14, 2022, https://www.kiplinger.com/economic-forecasts/interestrates#:~:text=Expect%20the%20Treasury%2010%2Dyear,from%204.2%25%20to%204.7%25.

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communities in the Bay Area, the availability of financing for developers under these economic conditions may pose a constraint on development outside of the Town’s control.

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3.600 REVIEW OF 2015-2022 HOUSING ELEMENT

PERFORMANCE

3.610 Effectiveness of the Element
This update of the Atherton housing element provides an opportunity to reflect on past achievements and challenges, identifying what is working and what is getting in the way in meeting Atherton’s housing needs.

A detailed analysis of the goals, objectives, policies and programs contained in the 2015-2022 Housing Element Update is presented in Table HE-11 below.

3.620 Progress in Implementation
A comparison of the number of projected or planned housing units (i.e., 2015-2022 Housing Need Allocation) with what was actually achieved is summarized in Table HE10 below.

TABLE HE-10: PROGRESS IN IMPLEMENTATION
5-2022 Actual RHNA Achievement
Income Group 2015-2022
Allocation
Private
Construction
Accessory
Dwelling Unit
Program
Total Met (M),
Exceeded (E), or
Fell Short (S) of
Goal
Very Low 35 - 72 72 E
Low 26 - 22 22 S
Moderate 29 - 21 21 S
Above Moderate 3 132 132 E
Totals 93 132 115 247 E
Note: Totals through Dec. 2021
The following summary highlights key accomplishments and challenges from the previous housing element’s planning period (2015 to 2022). This information will help ensure that the updated element for 2023 to 2031 builds on success, responds to lessons learned and positions us to better achieve our community’s housing priorities.

A more detailed program-by-program review of progress and performance is in Table HE-11.

There were a number of notable accomplishments related to implementation of the Atherton housing element over the past eight years:

ADUs (often referred to as second units or in-law units) have become increasingly popular after the Town adopted amendments to the ADU ordinance, most recently in 2020. Prominent Ordinance revisions which support this projection and increased production trend from prior years beyond those amendments as prescribed by

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Government Code Sections 65852.2 and 65852.22 included additional floor area exemption up to 1,200 square feet beyond the first 800 square feet and increased public education on the construction of ADUs. It is noted that throughout 2022, a total of 27 new single-family permits were issued and these permits included a total of 26 new ADUs, and 5 ADU conversions. This nearly one to one ratio is a direct correlation to the Town’s encouragement to produce ADUs. The total number of ADUs permitted and/or constructed between 2015 and 2022 (the last year with data available) was more than 125. This exceeded the Town’s RHNA allocation. This is important, not only because ADU construction is the most viable form of new housing in Atherton, but also because rental surveys of ADUs show that these kinds of units are more affordable.

Additionally, results from a recent Town-wide survey indicates significant support for the development of ADUs over the next 8 years showing a more than 200 property owner commitment to do so.

The Town approved dormitory housing consisting of 147 units or a total of 291 beds at Menlo College. Of these, 19 of the units were dedicated for low-income students with incomes at or below 80% of the Area Median Income (AMI). The new dormitory housing alleviated demand for other units from students and housed a number of students who were previously unhoused.

Construction of new Above Moderate market rate housing also exceeded the Town’s RHNA allocation. A total of 9 net new Above Moderate market housing units were constructed during the 2015-2022 cycle. On the required CA Department of Housing and Community Development (HCD) form the summary Table B only counts newly constructed units and does not account for demolished units. There were 132 new units constructed and 123 existing units demolished.

While the Town has several achievements, there is still work to be done. Some of the challenges that kept the Town from achieving all its housing goals include:
● The Town does not have any commercial activity – which means there are no retail sales taxes, commercial development impact fees or other related sources of revenue available to other cities. The Town has very restricted tax revenue. This restricts the option of financial incentives or participation by the Town in building new and affordable housing.
● During the Planning Period it was anticipated that new housing would be constructed at Menlo School and Menlo College. A net of eleven new faculty units affordable to very low- and moderate-income households were planned at Menlo School and 79 new units affordable to lower income and moderateincome households were planned at Menlo College. Although the plans for these units remain on the Master Plans for these institutions there were insufficient funds available to construct them during the Planning Period. It is recommended that this program be carried forward and expanded for the 2023-2031 Planning Period.

3.630 Future Opportunities

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Despite the setbacks noted in the prior section, the Town continues to move forward on its goals and actions outlined in the prior cycle’s Housing Element. In addition, the trends and lessons learned from the prior cycle have been thoroughly analyzed and considered for effective incorporation in this Sixth Cycle Housing Element. These include:
● Imposition of an affordable housing impact fee on single family building permits to fund programs to assist in development and assistance for affordable housing.
● Implementation and promotion of SB 9 lot splits.
● Expansion of ADU programs through the consideration of various development and incentive programs.
● Amendment of PFS zoning to permit multi family housing by right ● Creation of a new multifamily zoning district RM 10
● Adoption of a new affordable housing Inclusionary Ordinance TABLE HE-11: Analysis of the Objectives, Programs contained in the 2015-2022 Housing Element Update

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Housing Element
Program Name/Number
Program Description
and Objective
Timeframe and
Achievements
Program Evaluation and
Recommendation

3.710 New Construction, Conservation, and Rehabilitation

3.711 New Construction of
Above Moderate Units
Continue to facilitate and expedite thedevelopment of new above moderateincome housing units in order to achievethe construction of net 3 new abovemoderate-income units. (2015-21) A net of 9 new units wereconstructed during this period. Althoughthe HCD Annual Progress Report shows 132new units, that does not account fordemolished units. Market has limitedconstruction to reconstruct 1 unit for eachdemolished unit.

Objective met and exceeded.

3.712 New Construction of
Affordable Units
During the previous RHNA cycle theTown amended the Zoning Ordinanceto remove constraints on thedevelopment of ADUs. During the 2015-22 cycle the Zoning Ordinance wasamended to conform to new ADUprovisions in State law. Continue tofacilitate and expedite the constructionof new affordable units in order toachieve 90 new affordable units. (2015-21) 115 new ADUs were constructedduring this time frame. Constructionincreased as a result of zoning ordinancechanges.

Objective met and exceeded. This
program has been effective inproviding housing for lower incomefamilies and individuals. Recommendcontinuance.

3.712a Conduct Affordabilit
y
Surveys
This program called for housingaffordability surveys to be conductedevery two years. In lieu of conductingsurveys, the Town has chosen to requestaffordability information from each newADU developer/owner at the time ofBuildin g Permit issuance.
(2015-22) Affordability surveys are requiredfrom each new ADU developer/owner atthe time of Building Permit issuance.

Objective met. This program has beeneffective in providing ADU affordabilityinformation. Recommendcontinuance.

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3.712b New Construction of
Affordable Faculty,
Student and Staff
Housing on Private
Schools’ Property
Work and cooperate with Menlo School,Menlo College and Sacred HeartSchools to facilitate development ofaffordable faculty, student and staffhousing on school properties andprovide incentives for developmentthrou gh an ex
pedited review
process.
(2015-22) In 2020-21 the Town approveddormitory housing consisting of 147 units ora total of 291 beds at Menlo College. Ofthese, 19 of the units were dedicated forlow-income students with incomes at or lessthan 80% of the Area Median Income(AMI).

Objective partially met. This programhas been effective in providinghousing for 19 lower income studentsat Menlo College. Recommendcontinuance and adjustment toencourage additional housingdevelo pment.

3.712b
(cont’d)
Additional Affordable
Housing at Oakwood
Community at Sacred
Heart Schools
The Oakwood Community at SacredHeart Schools is currently developedwith housing for the retired religious in a“single room occupancy” style. Theseunits are all affordable to extremely lowincome households. The program allowsfor expansion of the housing shoulddemand warrant. (2015-22) During the prior RHNA cycle theTown amended its Zoning Ordinance toallow multi-family residential uses thatprovide housing for very low- and lowincome households. Discretionary review isrequired related to the location, size,proximity to heritage trees andenvironmental aspects of the project butmay not result in the denial of the use. Aproject is currently proposed at Oakwoodconsisting of the addition of 5 new roomsfor permanent occupancy and 3 newguest rooms.

Objective is being met, no changes toOrdinance are recommended. Thisprogram has been effective inproviding housing for lower incomeindividuals. Recommendcontinuance.

3.712b
(cont’d)
Faculty and Student
Housing
Annually, at the time for review of theirmaster plans, work with private schoolsto facilitate development of affordable,multifamily faculty, student, and staffhousing on their properties. Achieveconstruction of 11 new faculty units atMenlo School, 79 new faculty andstudent units at Menlo College. It isanticipated that about 1/3 of the unitswill be rented in the extremely lowincome category. (2015-22) The Town has annually workedwith private schools to facilitatedevelopment of affordable, multifamilyfaculty, student, and staff housing on theirproperties. During this cycle the schoolswere only partially able to achieve theirgoals due, in part to unavailability of funds.In 2020-21 the Town approved dormitoryhousing consisting of 147 units or a total of291 beds at Menlo College. Of these, 19 ofthe units were dedicated for low-incomestudents with incomes at or below 80% ofthe Area Median Income (AMI).

Objective partially met. Recommendthat Town continue to work withprivate schools to meet objectivesand amend the zoning code tofacilitate new housing development.

3.712c Maintain Contact with
Affordable Housing
Developers
Continue to maintain contacts withagencies and developers of affordablehousing in the mid-peninsula area inorder to consult about resources thatmight be available to and from theTown for affordable housing. Contactsexist with agencies such as the San (2015-22) Town Staff continues to maintaincontact with agencies and developers ofaffordable housing in the mid-peninsulaarea. The Town offers expedited planningand building processing through use ofcontract plan checking services andsupport for applications for funding.

Objective met.

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Mateo County Department of Housingand Community Development, nonprofit developers such as MidPenHousing, Bridge Housing and Habitat forHumanity.

3.713 Conservation and
Rehabilitation of
Existing Units
Continue to facilitate and expedite therehabilitation and reconstruction ofexisting housing through improvedreview times and project assistance.
(2015-22) Between 50 and 100 permitsissued each year for improvement,rehabilitation and conservation of existingunits.

Objective met. Recommendcontinued implementation.

3.720 Special Housing Needs
Senior households often experience a combination of factors that can make accessing or keeping affordable housing a challenge. They oftenlive on fixed incomes and are more likely to have disabilities, chronic health conditions, and/or reduced mobility. Understanding how seniorsmight be cost-burdened is of particular importance due to their special housing needs, particularly for low-income seniors. People with disabilitiescan face additional housing challenges. Encompassing a broad group of individuals living with a variety of physical, cognitive, and sensoryimpairments, many people with disabilities live on fixed incomes and need specialized care, yet often rely on family members for assistance dueto the high cost of care. Large family households often have special housing needs due to a lack of adequately sized affordable housingavailable. The higher costs required for homes with multiple bedrooms can result in larger families experiencing a disproportionate cost burdenthan the rest of the population and can increase the risk of housing insecurity. There are no farmworkers in Atherton, nor any seasonal agriculturalwork in the vicinity of Atherton. Households headed by one person are often at greater risk of housing insecurity, particularly female-headedhouseholds, who may be supporting children or a family with only one income. Homelessness remains an urgent challenge throughout the region,reflecting a range of social, economic, and psychological factors. Homelessness is disproportionately experienced by people of color, peoplewith disabilities, those struggling with addiction and those dealing with traumatic life circumstances. In San Mateo County, the most commontype of household experiencing homelessness is those without children in their care. Among households experiencing homelessness that do nothave children, 75.5% are unsheltered. Of homeless households with children, most are sheltered in emergency shelters. San Mateo Countyconducted the latest point-in-time (PIT) Count on February 24, 2022. Volunteers were deployed to conduct an observational count of thoseexperiencing unsheltered homelessness. San Mateo County conducted the unsheltered homeless survey through March 3, 2022. In both 2019and 2022, Atherton had 1 and 3 (respectively) homeless individuals according to the most recent PIT San Mateo County data(https://www.smcgov.org/hsa/2022- one-day-homeless-count). All of these factors were considered in the evaluation of related programs fromthe past cycle and informed the recommendations as noted below, as well as the development of new programs in Section 3.800.

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3.721 Seniors See Actions 3.721a through 3.721d
below.

3.721a Residential Care
Facilities
Continue to facilitate the provision ofboard and care opportunities,particularly for seniors, some of whommay be longtime Atherton residents whocan no longer remain in their homes andwho wish to continue living in Atherton.State law provides that a residentialcare facility (defined as a facility servingsix or fewer persons) is a residential useand must be permitted whereverresidential uses are allowed, specificallyin the R-1A and R-1B zones. (2015-22) Zoning Ordinance was amendedin 12/2010 to state that a residential carefacility is a residential use and must bepermitted wherever residential uses areallowed, specifically in the R-1A and R-1Bzones.

Objective met. Recommend programcontinuance.

3.721b Home Repairs
Assistance
Publicize at Town Hall and in the Town'snewsletter home repairs assistanceprograms offered by Senior Centers inthe County and the County's HomeRepair Program. (2015-22) Handouts provided at Town Hallpublicizing repairs assistance programsoffered by Senior Centers in the Countyand the County's Home Repair Program.Publication in Town's newsletter was notaccomplished. Program publicized onTown website in lieu of in newsletter.

Objective met. Recommend programcontinuance.

3.721c Property Tax
Postponement Program
Continue to support the County'sProperty Tax Postponement Program tosupport seniors in staying in their homes.Publicize the program at Town Hall andin the Town newsletter. (2015-22) City Council's declaration ofsupport of the County's Property TaxPostponement Program stated in adoptedHousing Element. Handouts provided atTown Hall publicizing the program.Program publicized on Town website in lieuof in newsletter.

Objective met. Recommend programcontinuance.

3.721d Create Senior Friendl
y
Plan
The Town will create a plan to meet theneeds of the growing senior population,which will double over the next decadeand a half. The best way to identify thenecessary changes to ensure thatAtherton is senior friendly is to conduct athoughtful process, receiving input fromvarious stakeholders and then identifyingthe policies and programs which areri ght for Atherton.
(2015-22) This program was notimplemented during this cycle because ofa lack of funding. There appears to be littleinterest in developing this type of programin Atherton.

Objective not met. Recommendabandon program.

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3.722 Disabled and
Developmentally
Dela
yed Persons
See Actions 3.722a through 3.722cbelow.

3.722a ADA Compliance Continue to review new residential developments and major remodels forADA com
pliance.
(2015-22) Building Department on-goingprogram.

Objective met. Recommend programcontinuance.

3.722b County Housing
Accessibility for
Disabled Persons
Program
Continue to support the program, directinquiries for house modifications for thedisabled to the program and publicizethe program at Town Hall and throughthe Town's newsletter. (2015-22) City Council's declaration ofsupport of the County Housing Accessibilityfor Disabled Persons Program stated in theadopted Housing Element. Building andPlanning Dept. staff directs inquiries forhouse modifications for the disabled to theprogram. Handouts provided at Town Hallpublicizing the program. Programpublicized on Town website in lieu of innewsletter.

Objective met. Recommend programcontinuance.

3.722c Information on Housin
g
and Services Available
for Persons with
Developmental
Disabilities
Work with the Golden Gate regionalcenter to implement an outreachprogram that informs families within thecity on housing and services availablefor persons with developmentaldisabilities. The program could includethe development of an informationalbrochure, including information onservices on the City’s website, andproviding housing-related training forindividuals/families through workshops. (2015-22) City Council’s declaration ofsupport for the Golden Gate regionalcenter to implement an outreach programthat informs families within the City onhousing and services available for personswith developmental disabilities. PlanningDept. staff directs inquiries for housing andservices for the developmentally disabledto the program. Handouts provided atTown Hall publicizing the program.Program publicized on Town website in lieuof in newsletter. ective met. Recommend program
continuance.

3.723a
Equal Housing
Opportunity
Refer housing discrimination complaintsto Midpeninsula Citizens for Fair Housing.Disseminate fair housing information atvarious sites and through the Townnewsletter and website. (2015-22) Planning Dept. and City Attorney'sOffice on-going program. Fair Housinginformation available at Planning Dept. andCity Attorney's office. Program publicizedon Town website in lieu of in newsletter.

Objective met. Recommend programcontinuance.

3.724a Emergency Shelters,
Transitional and
Supportive Housing
Continue to support the possibility ofEmergency Shelters, Transitional Housing,and Supportive Housing in Atherton. (2015-22) During the previous cycle thePublic Facilities and Schools zoning districtwas amended to allow emergency sheltersas a non-conditional use when locatedwithin the Town Civic Center property.

Objective met.

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3.730 Consistency with State Requirements
The Town has had a number of regulations that encourage energy conservation for years. These include permitting solar installations, and promotingthrough various public education programs, energy efficient design. The Town also requires native landscaping to the greatest extent feasible, whichreduces the need for both water and energy. All of these policies and regulations will continue.

3.731 Energy Conservation See Actions 3.731a through 3.731c below.

3.731a Title 24 Compliance Continue to require Title 24 compliance, and disseminate information on otheragency's energy conservation programs,such as PG&E's solar subsidy programand ener g
y audits.
(2015-22) Building Dept. continues to requireTitle 24 compliance, and disseminateinformation on other agency's energyconservation programs, such as PG&E'ssolar subsid y
pro
gram and ener
g
y audits.

Objective met. Recommendprogram continuance.

3.731b Green Building Continue to support Green Building in Atherton through upholding the GreenBuilding Ordinance. (2015-22) Building Dept. continues toimplement and enforce the Green BuildingOrdinance.

Objective met. Recommendprogram continuance.

3.731c Energy Conservation
Promotion
Continue to promote energyconservation through energy audits,participation in PG&E and Cal Waterprograms, and encouragingconservation retrofits. (2015-22) Building Dept. and Public WorksDept. continues to promote energyconservation through energy audits,participation in PG&E and Cal Waterprograms, and encouraging conservationretrofits.

Objective met. Recommendprogram continuance.

3.731d Employee Housing Ensure that the city is in compliance with State Health and Safety Code Sections17021.5, which concerns employeehousing that serves six or feweremployees. (2015-22) It was determined that the Town isin compliance with State Health and SafetyCode Sections 17021.5, which concernsemployee housing that serves six or feweremployees.

Objective met.

3.740 Other Housing Programs

3.741 Shared Housin
g

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3.741a Shared Housin
g The Town will continue to support the
Human Investment Program (HIP), a nonprofit organization that matches peopleneeding housing and people owning ahome who desire additional incomeand/or companionship. The Town willmake information about the HomeSharing program available at Town Halland will publicize the effort through theTown’s newsletter. (2015-22) Planning Dept. and on-goingprogram. HIP Home Sharing informationavailable at Planning Dept. Programpublicized on Town website in lieu of innewsletter.

Objective met. Recommendprogram continuance.

3.750 Program by Program Evaluation and Changes Incorporated in 2023-31 UpdateSee Table 3.710 for 2015-22 Update Programs and Objectives Analysis. The following describes how the objectives andprograms of the updated element incorporate changes resulting from the evaluation.New Construction of Above-Moderate Income Units - The program of providing new construction of Above-Moderateincome units has, in the past, depended on the construction of single-family detached homes throughout the Town’s R1-Aand R1-B lots. The program has been hampered by the lack of available land and the low density character of thecommunity. New construction invariably results in the demolition of a n existing unit, leading to nearly a net zero increasein housing units. The adoption and implementation of SB 9 by the State of California is projected to allow the creation ofadditional lots with higher densities and thus permit the development of a greater number of Above-Moderate housingunits during the 2023-31 planning period. Further, the Town will create two new multifamily zoning districts, RM 20 and RM 10that will facilitate the development of additional above-moderate income units.New Construction of Affordable Units - The program of providing new construction of affordable units has, in the past,depended primarily on the construction of ADUs and JADUs. While the objective was met in the 2015-22 planning period,the RHNA objectives for 2023-31 is markedly higher. Consequently the 2023-31 Update includes Housing Program 3.813addressing multifamily housing development on school and other properties and creation of two new multifamily zoningdistricts, RM 20 and RM 10. In addition, an Inclusionary Zoning Ordinance will be adopted which requires a percentage of

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units to be set aside for lower-income housing. These new programs should be sufficient to meet the 2023-31 objectives foraffordable units.Faculty and Student Housing -January 2023 The program of providing additional faculty and student housing on school campuses and there appears to be a desire on the part of the schools to construct additional faculty and student housing. The 2023-31Update includes new programs such as Inclusionary Zoning Ordinance that could assist in funding construction and zoningchanges such as increased height, reduction of setbacks and similar changes that could allow increased densities, allhelping to reduce barriers to development of new faculty and student housing.Conduct Affordability Surveys - While housing affordability surveys during the 2015-22 planning period have been requiredas a condition of approval, they typically reflect anticipated rent, and therefore affordability, as opposed to actualaffordability. Changes in the 2023-31 Update are proposed that require a survey every two years of actual rents in orderto determine the actual affordability level of low and moderate income ADUs, JADUs, multifamily and other knownaffordable units. This change will provide data that can be used to adjust programs during the planning period, ifnecessary.Maintain Contact with Affordable Housing Developers - Atherton management and planning staff have regular contactwith developers of affordable housing, exchanging ideas and proposals about expanding affordable housing opportunitiesin Atherton. This program continues into the 2023-31 planning period in order to take advantage of affordable housingopportunities as they arise.Conservation and Rehabilitation of Existing Units - The Atherton Planning Department works closely with the BuildingDepartment to encourage the conservation and rehabilitation of housing in Town, with particular attention to affordablehousing. The Town will continue to assist the property owners and development community in the housing development,conservation and rehabilitation process. The Town will establish a building inspector ombudsman to assist property ownersnavigate the rehabilitation process. This program continues into the 2023-31 planning period with a projected 50 to 100permits being issued for improvement, rehabilitation and conservation projects.

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3.700 HOUSING GOALS, QUANTIFIED OBJECTIVES AND POLICIES This section contains the Housing Goals, Quantified Objectives and Policies of the Town.

These goals, objectives and policies will be implemented by the Housing Programs described in Section 3.800 of this Element.

3.710 GOAL: FACILITATE THE PRIVATE DEVELOPMENT OF HOUSING TO MEET THE

ABOVE MODERATE INCOME HOUSING NEED IDENTIFIED FOR ATHERTON

3.711 OBJECTIVES
A. Realize the construction of approximately 182 net new housing units in the above-moderate income category in Atherton from 2023-2031.

3.712 POLICIES
A. Within the limitations of the private housing market the Town shall work with private developers to encourage new housing development.

B. Create a new multifamily zoning district at 10 units per acre to facilitate additional housing opportunities for the community.

3.720 GOAL: USE ACCESSORY DWELLING UNITS TO MEET A SUBSTANTIAL PORTION OF THE TOWN’S MODERATE TO VERY LOW-INCOME HOUSING NEED.

3.721 OBJECTIVES
A. Realize the construction of 280 new accessory dwelling units planned for occupancy by moderate to extremely low-income households in Atherton from 2023-2031.

B. Partner with a non-profit organization to facilitate and promote the availability and rental of ADU and JADU units.

3.722 POLICIES
A. Actively promote the Accessory Dwelling Unit provision of the Atherton Zoning Ordinance by encouraging homeowners and developers to include attached or detached Accessory Dwelling Units in existing or new homes.

B. Comprehensively update the Town’s Accessory Dwelling Unit (ADU) Ordinance to amend any identified zoning development standards which may unduly constrain development of ADUs.

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3.730 GOAL: FACILITATE THE DEVELOPMENT OF FACULTY AND STUDENT HOUSING

ON SCHOOL CAMPUSES TO MEET A PORTION OF THE MODERATE AND VERY

LOW-INCOME HOUSING NEED IDENTIFIED FOR ATHERTON

3.731 OBJECTIVES
A. Encourage the construction of 80 new multifamily housing units at private and public schools in the moderate to very low-income categories in Atherton from 2023-2031.

3.732 POLICIES
A. Encourage schools in Atherton to provide affordable multifamily housing on their campuses.

B. Amend the zoning code to permit multifamily by right subject to objective design standards with increased height limits and reduced setbacks.

3.740 GOAL: FACILITATE THE DEVELOPMENT OF AFFORDABLE HOUSING ON PRIVATE

PROPERTY

3.741 OBJECTIVES
A. Realize the construction of 4 new affordable multifamily housing units on private properties in Atherton from 2023-2031.

3.742 POLICIES
A. Adopt an Inclusionary Housing Ordinance and encourage private property owners to provide affordable multifamily housing on-site.

B. Adopt an Affordable Housing Fee Program for single family development as a set aside program to encourage and support the development of affordable housing opportunities in Town.

C. Amend the zoning code to permit multifamily housing by right in the RM 10 zoning district subject to objective design standards with increased height limits and reduced setbacks.

3.750 GOAL: PROMOTE PRIVATE EFFORTS TO CONSERVE AND IMPROVE ATHERTON’S EXISTING HOUSING SUPPLY.

3.751 OBJECTIVES

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A. Promote the improvement, maintenance and enhancement of the existing housing stock through ongoing private and public rehabilitation efforts, with the objective of processing 1,000 applications for rehabilitation and home improvement between 2023 and 2031.

3.752 POLICIES
A. The Town shall promote conservation and improvement of the condition of its existing affordable housing stock with the goal of conserving all existing affordable units.

3.760 GOAL: ENCOURAGE SPECIAL CONSIDERATION TO THE MAINTENANCE AND

EXPANSION OF HOUSING OPPORTUNITIES FOR HANDICAPPED AND LOW AND MODERATE INCOME AND HOMELESS PERSONS.

See discussion in Section 3.720. As such, the following goals, objectives and policies were developed in order to best address and/or enhance meeting the housing needs of handicapped and low and moderate income homeless persons.

3.761 OBJECTIVES
A. Enforce uniform building code regulations regarding provision of access for handicapped in residential structures, where applicable.

B. Support the conservation and development of affordable housing for citizens of modest means.

C. Encourage development of accessible units with all new multifamily housing development.

3.762 POLICIES
A. The Town shall continue to enforce the uniform building code regulations regarding provision of handicapped access in residential structures.

B. The Town shall continue to encourage the production and availability of more affordable housing through the development of new accessory dwelling units, and private and public-school faculty and student housing.

C. The Town shall cooperate with agencies providing emergency shelter, transitional and supportive housing for the homeless and those in crisis.

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3.770 GOAL: MEET THE NEEDS OF SENIORS, IN LIGHT OF THE PENDING GROWTH OF THIS POPULATION IN SAN MATEO COUNTY.

See discussion in Section 3.720. As such, the following goals, objectives and policies were developed in order to best address and/or enhance meeting the housing needs of seniors.

3.771 OBJECTIVES
A. Assist in meeting the needs of senior residents.

3.772 POLICIES
A. Enforce uniform building code regulations regarding provision of access for handicapped in residential structures, where applicable.

B. Support the conservation and development of affordable housing for seniors with lower incomes.

C. Process requests for accessibility accommodations.

D. Encourage policies that enable seniors to “age in place” as much as possible.

E. Continue to encourage the development of accessory dwelling units, which can provide an affordable option for seniors.

F. Identify and prioritize steps that Atherton can take to meet the needs of seniors.

3.780 GOAL: CONTINUE TO PROMOTE HOUSING OPPORTUNITIES FOR ALL PERSONS

REGARDLESS OF RACE, SEX, MARITAL STATUS, ANCESTRY, NATIONAL ORIGIN

OR COLOR

3.781 OBJECTIVES
A. Eliminate discrimination in housing to the extent feasible through Town actions.

3.782 POLICIES
A. The Town shall actively support housing opportunities for all persons regardless of race, sex, marital status, ancestry, national origin or color.

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3.790 GOAL: SUPPORT EFFORTS TO AFFIRMATIVELY FURTHER FAIR HOUSING IN ATHERTON.

3.791 POLICES:

A. Amend the Zoning Code to include a new Multifamily Overlay Zoning District in addition to amending the code to facilitate multifamily housing development in the PFS zoning district (school properties). This substantial step will facilitate the development of multifamily housing in the community and provide a range of housing options including new affordable housing units and accessible units.

B. Regional Housing Trust Fund or Other Regional Collaboration:

Support a regional Housing Trust Fund that is funded by a diversity of jurisdictions and allocated to communities based on poverty, cost burden, and segregation. The fund could support affordable housing production, community amenities, last/first month’s security deposits, down payment assistance, etc. Pair assistance with affirmative marketing to households with disproportionate housing needs including Black and Hispanic households.

C. Promote Affordable ADUs and JADUs: Develop a program that would connect service providers that help displaced renters with ADU owners in Atherton that want to rent to low-income renters. Develop assistance programs for JADUs to make alterations easier and more cost effective so that additional units can be developed within the existing building envelope of houses and made available at more affordable rates.

D. Rental Assistance Program: The City Council will appoint a committee to convene a discussion with BIPOC (Black, Indigenous and People of Color) populations who are experiencing comparatively high rates of cost burden to discuss solutions for relief and consider rental assistance programs tailored to extremely high-cost burdened residents.

E. Promote Fair Housing Information: Update the Town’s website to include fair housing including resources for residents who feel they have experienced discrimination, information about filing fair housing complaints with HCE or HUD, and information about protected classes under the Fair Housing Act.

F. Fair Housing Training: The City Council will appoint a committee to partner with Project Sentinel, or another affordable housing organization, to perform fair housing training for property owners, real estate agents and

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tenants across the region. Focus enforcement efforts on race-based discrimination and reasonable accommodations.

G. Human Investment Program (HIP) operates a Homesharing Program in the Town. The Homesharing Program places residents seeking housing with residents open to sharing (renting) a portion of their home. Five residents contacted HIP Housing to learn more about other programs as well as to discuss affordable housing opportunities in San Mateo County.

One resident applied to HIP Housing’s Home Sharing Program and worked with a Home Sharing Coordinator to receive home sharing referrals, community resources, as well as ongoing information about affordable housing opportunities including waiting list opening information.

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3.800 HOUSING PROGRAMS
This section contains Atherton’s Housing Programs for the Planning Period 2023 – 2031.

Table HE-12 presents a summary of the number of dwelling units projected to be constructed due to ongoing and proposed programs in Atherton. Those programs include maintaining and/or exceeding existing levels of new Accessory Dwelling Unit (ADU) production, lot splits and new unit development pursuant to SB 9, development of vacant sites, and increased housing production on school sites and new multifamily zoning. These programs are elaborated upon within this chapter.

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Table HE-12: Summary of Projected Dwelling Units

3.810 New Construction, Conservation and Rehabilitation Very lowLowMod Above Mod Total
ADUs 112 56 112 280
Lot Splits (SB 9) 48 48
Vacant Sites 10 10
RM 10 (23
Oakwood)
4 12 16
PFS (Private
Schools)
40 40 80
Total 156 96 182 434
RHNA 148 56 144 348
Amount above or
below RHNA
+8 +40 +38 +86

3.811 New Construction of Above Moderate-Income Units

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A. New Single Family Housing Development: Continue to facilitate and expedite the development of new above moderate-income housing units.

An average of 25 new single-family homes in this income category are constructed in Atherton each year. However, an almost equal number of homes are demolished. A net of 9 new above moderate-income units were constructed in the Town during the first seven years of the 2015-2022 Planning Period. It is projected that a net of 10 additional homes in the above moderate-income category will be constructed during the 2023- 2031 Planning Period based on the 2015-2022 Planning Period experience.

Appendix 5, the inventory of opportunity sites, includes a list of vacant properties.

B. New Single Family Housing Development from SB9 Implementation:

It is projected that approximately 48 new above moderate-income housing units will result from lot splits and new housing development facilitated by the 2021 SB 9 State law (GC section 65852.21) during the 2023-2031 Planning Period.

Recently enacted legislation known as Senate Bill 9 or SB 9 waives discretionary review and public hearings for building two homes on a parcel in a single-family zone and subdividing a lot into two that can be smaller than the previously required minimum size. The legislation became effective on January 1, 2022.

In early 2022 the Town adopted an implementing ordinance consistent with state law to provide property owners clarity for the development opportunities under SB 9. The ordinance allows new lots created under the provisions of SB 9 to utilize the existing development standards for the base zoning district. A new residence built on a lot created through an SB 9 lot split can use the same setbacks, floor area ratio, building heights and other standards as provided for any existing lot in the same zoning district. This contrasts with the approach taken by several similar jurisdictions to Atherton to limit the size of units on new lots created through SB 9 to a maximum of 800 square feet.

Prior to the adoption of SB 9, the minimum resulting lot size for a subdivision in Atherton was one acre. The status quo of larger lots with expansive lawns and well screened homes makes Atherton distinct among other Bay Area communities, where it is more prevalent to find 6-8 single-family homes per acre. Whereas other communities have likely maximized their potential for single-family development, Atherton is uniquely situated to see additional lot splits and new housing development result from SB 9.

The Town anticipates that SB 9 applications will be more common on lots of at least one acre in size that contain an older residence. The Town has found that there are 606 lots of an acre or greater in size with a residence

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built before 1970. These lots present a tremendous pool of homeowners who may be interested in pursuing SB 9 lot splits. The Town expects sites selected for SB 9 lot splits and the creation of additional units to be distributed throughout the Town.

In addition to the sites listed below, staff has spoken with several developers and property owners and there is support for additional SB 9 lot splits throughout Town on parcels of varying sizes.

The projected interest in pursuing SB 9 projects in Atherton has been borne out in the first few months of the law’s applicability. During 2022 Atherton received 6 applications for SB 9 subdivisions and an additional 6 inquiries that would result in a total of 23 net new dwelling units as listed in Table HE13.

All properties listed below contain existing single-family residential uses that would not impede, but support additional uses as indicated by each project applicant, combined with the existing lot configurations and existing improvements, thus all have a high likelihood of redevelopment that all properties
Table HE-13: Existing and Potential SB-9 Project Sites
Address Existing Lot Size Net New
Units
Application Submitted
78 Cebalo 0.55 2 Yes - Approved
2 Lowery 1.2 3 Yes - Approved
125 Glenwood 1.03 1 Yes - Approved
94 Palmer 0.55 1 Yes - In Process
47 Santiago 2.53 1 Preliminary Stage
190 Selby 1.00 3 Preliminary Stage
197 Glenwood 1.29 2 Yes - In process

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1 Gresham 0.32 2 Yes - In process
97 Santiago 1.4 8 Preliminary Stage
During the same period the Town Staff has had discussions with three additional property owners about potential applications in the earlier exploratory stages that would result in another 6 net new dwelling units.

Preliminary discussions with these additional property owners, as well as all other addresses noted in the Table above, all indicated the ultimate goal to develop additional units. All of these SB 9 units would be in the above moderate-income category. Assuming this trend continues, Atherton should receive applications resulting in an average of 9 to 32 net new dwelling units per year in the future. Projecting forward, as awareness around SB 9 increases, the Town reasonably expects the number of such applications to increase in kind.

Atherton conservatively projects an average of six net new dwelling units per year will result from SB 9 property divisions and construction of two homes on a single parcel. Eligible properties were estimated based on lot size and configuration which lend themselves to relatively straight forward, non-complex land subdivisions, expressed development interest from property owners and generally older, but good condition existing physical conditions per windshield surveys. Over the 2023-2031 RHNA cycle a total of 48 net new homes are forecasted to be constructed in Atherton as a result of SB 9. All of these are projected to be in the above moderateincome category.

SB 9 Applications and Interested Sites

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The Town will establish a monitoring program of SB9 applications and approvals within two years of Housing Element adoption to ensure actual production is on pace with projections, to identify progress and make appropriate program adjustments and identify additional sites within six months if assumptions are not being met. The Town will monitor SB9 applications and approvals.

C. New Multi-family Housing Development: The Town of Atherton, since its incorporation in 1923, has been a residential community with no commercial entities except public and private schools. The early Town residents favored preservation of heritage trees and abundant open space and developed larger estate lots. The current minimum density is one residence per acre with the Town encouraging development of ADUs and JADUs on single family properties. Recognizing the extreme housing shortage in California and the San Francisco Peninsula, the Town desires to do its part in meeting the assigned RHNA production through rezoning nineteen single family properties to multifamily. This is a dramatic departure from the Town’s historic development pattern.

The Town will create a multifamily overlay zoning district, RM 10, permitting multifamily housing development at densities of 10 dwelling units per acre with heights up to 40 feet and adequate setbacks to accommodate the maximum density. Multifamily housing

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will be allowed by right, provided that each project is consistent with adopted objective design standards. One single family property have been identified for rezoning to multifamily (Table HE-14).

The Town will develop objective design standards that support new multifamily housing development in an inclusive manner with existing single-family residences. The Town will also adopt an Inclusionary Housing Ordinance to restrict 20% of the new multifamily units as affordable. With the affordable housing requirement, these projects will also be able to take advantage of Density Bonus provisions that provides additional housing units, waivers and concessions to support the provision of affordable housing.

The City Council conducted numerous study session meetings, performed site visits throughout the community, received numerous feedback and suggestions through email, phone or in-person meetings with residents and analyzed numerous properties for designation in new multifamily zones. The City Council prioritized properties that are close to services, transit, jobs and with adequate access along a public right-of-way and where the property owner is interested in developing as multifamily housing. The following property is identified:

Address Lot Size Density Development
Potential*
1 23 Oakwood 1.62 acres 10 units per acre 16 units
* not including Density Bonus units
The property owner at 23 Oakwood indicated interest in developing the property with multifamily units and has been in discussions with developers and builders. The property is 1.6 acres in area, a level lot with no known site constraints. The property has access to an improved public right-of-way and is currently served with utilities. Given the property owner’s interest, it is anticipated that this property will develop with 16 multifamily housing units under the new base zoning of RM 10 and not taking into consideration density bonus units.

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The Town will adopt an Inclusionary Housing Ordinance that will require a minimum of 20% of the multifamily dwelling units be constructed as affordable to lower income households.

The Town will take the steps listed below to facilitate new multifamily construction for market rate and lower income households:

A. Amend the Zoning Map and create a new Zoning Overlay District, RM 10 permitting 10 units per acre by right with up to 40 feet height limit and setbacks reasonable to accommodate the new development.

Adopt objective design standards. Prepare CEQA analysis and complete the rezoning within one year of Housing Element certification.

B. Adopt an Inclusionary Housing Ordinance requiring a minimum of 20% multifamily housing units be affordable to lower income households.

Adopt the Ordinance within one year of Housing Element certification.

3.812 New Construction of Affordable Accessory Dwelling Units In 2020, the Town amended the Zoning Ordinance to encourage the development of accessory dwelling units (ADUs) and junior accessory dwelling units (JADUs)by removing constraints on their development and providing other incentives including exempting the ADU floor area from the maximum site floor area limit. During the last 3 years of the 5th RHNA cycle, the Town issued an annual average of 35.3 building permits per year for attached and detached ADUs. In 2020, permits were issued for 34 ADUs, in 2021, permits were issued for 32 ADUs. From January 1 - October 31, 2022, the Town has received 27 new ADU permits and 6 new JADU permits for a total of 33 new housing units.

ADU plans are approved ministerially with minimal objective design standards, the Town does not impose impact fees and as discussed earlier, given the large size of Atherton properties, there is adequate land available to build attached and detached ADUs and JADUs. The most effective incentive to realize construction of ADUs has been the 1,200 square feet of exempt floor area and 500 square feet of exempt floor area for JADUs. This allows homeowners to build an ADU and a JADU without impacting the size of their main dwelling. In the past two years, a total of 48 new single family

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homes were built in Atherton and during this same time frame, there were 44 new ADUs, 3 JADUs, and 7 ADU-conversions. The Town believes that this nearly one to one ratio exists because the Town recently modified its regulations to encourage the development of ADUs. In addition, a recent community survey with nearly 18% of households responding indicates an interest by over 200 property owners to construct an ADU on their property over the next 8 years. Accordingly, the Town believes that the construction rate of 35 new ADUs per year over the next 8 years is achievable. Many residents at the Town held community meeting expressed interest in building a new ADU or renting their existing guest house when the code is updated.

The Town realized high ADU construction with minimum education and outreach to the community. The Town plans to greatly expand community outreach to realize additional ADU development. Specifically, the Town will distribute, at least annually, community outreach mailing and social media posts, host at least one community workshop on new ADU development standards and provide information on the Town’s website and at the Town counters on the ease of ADU development. With the Town’s current pace of ADU applications, the Town forecasts the development of 280 new ADUs over the next planning period. With additional outreach and other incentives and changes to the zoning code, the Town plans to meet or exceed this current pace of production over the next eight years. The Town projects that the number of ADUs produced in the lower income levels would be 168 units; 112 very low to low income-, and 56 moderate-income units.

In addition, the Town intends to take the steps listed below to facilitate new ADU construction and rental to lower income households, additional ADU creation, construction and conversion, as well as remove any potential constraints:

C. Update ADU ordinance to comply with changes to state law.

Amend zoning code by July 1, 2023.

D. Adopt a program for pre-approval of ADUs plans to streamline the review and approval process and reduce the cost to prepare detailed plans by December 31, 2023.

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E. Amend the zoning code to allow ADUs to be constructed above detached garages which are numerous around Town by increasing the allowable height of such structures to be 18 feet, thus allowing a second story ADU to be constructed. Amend the zoning code by July 1, 2023.

F. Amend the zoning code to allow two ADUs to be constructed on properties two acres or greater in area. The first ADU constructed is exempt from floor area limitations and the second ADU will be included within ADU floor area calculations. This will facilitate the construction of additional ADU units. Amend the zoning code by July 1, 2023.

G. Many Atherton properties include pool houses and guest houses in addition to ADUs. These buildings are limited to 30-day occupancy per year. To facilitate additional rental of ADUs the Town will amend the zoning code to eliminate this provision and allow pool houses and guest houses to be rented as ADUs. The Town will distribute a town wide mailer informing property owners of this change and encouraging rental of their units. This will substantially increase the inventory of available rental units in the Town. Amend the cod by July 1, 2023.

H. At the time of construction or conversion, the Town requests the owner fill out an ADU rental survey indicating the amount of rent to be charged for the unit. By comparing this rent to the San Mateo County monthly maximum affordable housing cost by household chart, the affordability level of each unit is determined. This is an ongoing program.

I. A Town wide mailer will be completed to create an inventory of existing pool houses and guest houses. Using this inventory, the Town shall expand its work with a non-profit housing organization such as but not limited to HIP Housing (HIP) to connect homeowners to prospective renters.

The mailer will be distributed by December 31, 2023 and at least annually thereafter to advertise the program.

J. To encourage rental of ADUs and JADUs, the Town has developed a comprehensive incentive ADU/JADU rental program and is partnering with a non-profit housing organization, such as, but not limited to HIP Housing to facilitate the rental advertising, screening and partnering process by December 31, 2023.

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K. Adopt a Planning fee waiver for all new ADUs to incentivize new construction by July 1, 2023.

L. Prepare a nexus study and adopt an affordable housing impact fee on single family construction. The Town will make available funds from this program to provide very low-income rental assistance for eligible households identified by HIP by July 1, 2024.

M. Establish a monitoring program of ADU applications and approvals within two years of Housing Element adoption to ensure actual production is on pace with projections, to identify progress and make appropriate program adjustments. The town will monitor ADU applications and approvals.

Time frame for implementation: Ongoing (Short-term Action) Agency/Official responsible for implementation: Town Planner Proposed Measurable Outcomes: Complete related ADU Ordinance and other municipal code updates by July 1, 2023. Realize 168 new accessory dwelling units in the very low-, low- and moderate-income categories and 112 new accessory dwelling units in the above moderate-income category in the 2023 -2031 planning period.

Funding Sources: General Fund, Planning Department Budget, affordable housing in-lieu fees

3.813 Multifamily Housing Development on School Properties Menlo College is a private 4-year college located at 1000 El Camino Real sited on 31 acres of property (including 50% ownership of Cartan Athletic Field and Wunderlich Athletic Field) serving approximately 750 students.

Menlo School is a private grade 6 - 12 school located at 50 Valparaiso Avenue sited on 26.7 acres of property (including 50% ownership of Cartan Athletic Field and Wunderlich Athletic Field) serving approximately 795 students.

Sacred Heart Schools is a private preschool, K - 12 institution located at 150 Valparaiso Avenue on 60 acres of property serving approximately 1,195 students.

Menlo-Atherton High School is a public four-year secondary school in the Sequoia Union High School District serving approximately 2,400 students.

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The school and its athletic fields occupy 38.5 acres at 555 Middlefield Road at the corner of Middlefield and Ringwood Avenue.

Laurel School is a public elementary school in the Menlo Park City School District. Its Lower Campus is on 6 acres at 95 Edge Road in Atherton at the corner of Edge and Ringwood Avenue. The Lower Campus serves approximately 326 students in grades K-2.

Encinal School is a public K-5 elementary school in the Menlo Park City School District serving approximately 630 students. It is located on 10 acres at 195 Encinal Avenue at the corner of Encinal and Middlefield Road.

Las Lomitas School is a public TK-3 elementary school in the Las Lomitas Elementary School District serving approximately 485 students. It is located on 9 acres at 299 Alameda de las Pulgas at the corner of Alameda de las Pulgas and Camino Al Lago.

Adelante Selby Spanish Immersion School is a public K-5 elementary school in the Redwood City School District serving approximately 652 students. The portion of the campus within Atherton is located on 5.5 acres at 170 Selby Lane.

A. Public and Private Schools: Public and private school properties are zoned PFS (Public Facilities and Schools) District in Atherton. The PFS District currently allows multiple-family residential uses that could accommodate housing for very low- and low-income households associated with primary nonresidential use of property on the same site. No maximum density is specified in the PFS District for the multiple-family residential uses allowed in the zoning district and the Town does not have parking standards. The only multiple-family development regulations are setbacks, 34 feet height limit and 40% lot coverage. As outlined below, there is more than adequate land available on the school sites to develop new housing.

Atherton Planning Staff has had discussions with representatives of the three private schools and the public school in Town about the development of low- and moderate-income housing on their campuses.

Those discussions include:
● Menlo College currently has 25 housing units for faculty and staff. Most of those housing units are rented at rates affordable to low- and moderateincome households. In recent discussions between the College President and Atherton Planning Staff, the President indicated that the College is very interested in providing additional housing on campus. He stated that there is always a demand for additional housing, that the existing units are almost always 100% occupied, and that shortage of affordable housing is a barrier to hiring. However, funding has been a barrier to housing production in the

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past. Through the Housing Element update process, a resident group has been formed to assist the College with fundraising and facilitate the new housing development. The letter indicates that the College could support 60 additional faculty housing units. Letter from the College President is included as an appendix.

The College has identified three sites for new multifamily housing:
● Construction of a multi-family housing project on the site of an existing parking lot near the Administrative Offices. A nearby parking could be utilized for a parking facility and the building could 3 stories of housing. Most of the housing units would be set-aside for low- and moderate-income households.
● Convert WWII barrack housing to new apartments. This is anticipated to result in 26 net new housing units.
● The existing O’Brien surface parking lot.
● Menlo School – the school has acquired an apartment building locally for faculty housing. The cost of housing and impact on faculty is discussed annually by the school and its Board. Two sites on the Menlo School campus have been identified that can accommodate 45 multifamily units. ● Sacred Heart – there are currently five apartment units on the campus and housing for retired Nuns at Oakwood. The school anticipates this facility being renovated in the future to accommodate faculty rental housing units. It is not anticipated that the school will develop new housing units during this housing element cycle.

Given the large size of the school campuses and the minimal development regulations, there is more than adequate land available at each campus to accommodate new multiple family housing.

To facilitate development of affordable housing on single family zoned properties adjacent to school sites, upon acquisition of property by a school, if the school makes an application for a zoning change, the Town will consider rezoning the property to PFS to accommodate affordable housing consistent with existing PFS Zoning opportunities.

Time frame for implementation: The Town will amend the PFS zoning district to permit new multifamily housing by right at 40 units and 20 units per acre at four locations on the private school properties subject to objective design standards. The Town will complete the CEQA analysis and adopt the Zoning amendment within one year of Housing Element certification.

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Agency/Official responsible for implementation: Planning Department and Building Department
Proposed Measurable Outcomes: Construction of 80 new affordable multifamily units at private and public schools in the very low- to moderateincome category during the 2023-2031 planning period.

3.814 Adoption of an Inclusionary Zoning Ordinance
A. Inclusionary Fee. Adopt a new inclusionary ordinance for multifamily development and housing fee for all new single family housing construction and additions The Town will complete a nexus study and develop an inclusionary housing ordinance that would require 20% affordable units with new multifamily development and a new fee for single family development and additions. The fee will provide an option to provide affordable deed restricted ADU or JADU on-site in-lieu of paying the fee. Funds generated by this fee will be used to support affordable housing in Atherton which may include subsidizing new multifamily housing development, an ADU rental program and supporting affordable housing opportunities in the Town. The Town will develop a program on the use of funds.

Time frame for implementation: Within one year of Housing Element adoption the Town will establish the Inclusionary Ordinance and fee and a program for the use of funds.

Agency/Official responsible for implementation: Planning Department and Finance Director
Proposed Measurable Outcomes: Require 20% affordable units with new multifamily development, generate new funds to support an affordable ADU rental program and other affordable housing opportunities.

Funding Sources: General Fund, Planning Department Budget

3.815 Conservation and Rehabilitation of Existing Units A. Continue to facilitate and expedite the rehabilitation and reconstruction of existing residential units. The prompt processing of subdivision, planning review and building permit issuance has resulted in average review times that are some of the most reasonable in San Mateo County. The Town will continue to assist the property owners and

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development community in the housing development, conservation and rehabilitation process. The Town will establish a building inspector ombudsman to assist property owners navigate the rehabilitation process.

Time frame for implementation: Ongoing (Long-term Action) Agency/Official responsible for implementation: Planning and Building Departments
Proposed Measurable Outcomes: N/A
Funding Sources: General Fund, Planning and Building Department Budgets

3.820 Special Housing Needs
Some population groups may have special housing needs that require specific program responses, and these groups may experience barriers to accessing stable housing due to their specific housing circumstances. In evaluating related programs in the Town’s past cycles, the following programs tailored to special needs populations have been identified to increase their effectiveness.

3.821 Seniors
A. Continue to facilitate the provision of board and care opportunities, particularly for seniors, some of whom may be longtime Atherton residents who can no longer remain in their homes and who wish to continue living in Atherton. State law provides that a residential care facility (defined as a facility serving six or fewer persons) is a residential use and must be permitted wherever residential uses are allowed.

B. The Town will continue to provide information at Town Hall regarding the numerous Senior Centers in San Mateo County that offer assistance in home repairs. Some of these programs offer subsidized services and others maintain a list of skilled workers who charge below market rates. The information also includes San Mateo County’s Home Repair Program to assist low and moderate homeowners in rehabilitating their residences. The Town will publicize the availability of these services on the Town website.

C. The Town will continue to support the County Property Tax Postponement Program, which provides seniors with a means of postponing property tax payment. This program has the benefit of extending the length of time they can remain in their homes. Inquiries will be directed to the County Tax Collector’s Office and information regarding the program will be available at Town Hall and publicized on the Town’s website.

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D. The Town will host a Senior Workshop to educate the community on available resources. Information on home repair and retrofit for accessibility resources and programs, home sharing opportunity, financial assistance, and the ADU program will be presented.

Time frame for implementation: Conduct Senior Workshop within two years of Housing Element certification and annually thereafter. Outreach and education efforts are ongoing (Long-term Action)
Agency/Official responsible for implementation: Planning Department Proposed Measurable Outcomes: educate seniors and assist in allowing them to remain in their home
Funding Sources: General Fund, Planning Department Budget

3.822 Disabled and Developmentally Delayed Persons
A. Continue to review new residential developments and major remodels for compliance with the Americans with Disabilities Act (ADA).

B. Continue to support the County Housing Accessibility for Disabled Persons program at the Center for the Independence of the Disabled. The Town will direct inquiries for house modifications for the disabled to the County program. Public information regarding the program will be available at Town Hall and publicized on the Town’s website.

C. The Town will continue to process requests for housing accessibility accommodations. The Town’s municipal code provides a process for individuals with disabilities to make requests for reasonable accommodation for relief from the various land use, zoning, or rules, policies, practices, and/or procedures of the town that may be necessary to ensure equal access to housing.

D. Conduct annual outreach to the community through direct mailers and social media posting to inform the community on programs including the HIP homesharing program, organizations that provide home retrofits for accessibility, Meals on Wheels and senior in-home care providers
Time frame for implementation: conduct annual outreach to the community with the first mailer distributed two years from Housing Element certification and annually thereafter. All other actions are ongoing (Longterm Action)

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Agency/Official responsible for implementation: Building and Planning Department
Proposed Measurable Outcomes: N/A
Funding Sources: General Fund, Building Department Budget Funding Sources: General Fund, Planning Department Budget

3.823 Equal Housing Opportunity
A. Refer complaints of discrimination in housing access based on race, religion, national origin, age, sex, marital status or physical handicap, and other arbitrary barriers that prevent choice of housing to groups such as Project Sentinel. The Town will disseminate fair housing information at Town Hall. In addition, fair housing information will be published on the Town website. This program is ongoing during the planning period.

B. Develop and implement an education/outreach campaign targeting landlords/managers on renting to people with Housing Choice Vouchers. The Town will complete this program within three years of Housing Element certification.

C. Amend the Zoning title to eliminate the occupancy limitation on other accessory units, such as guest houses and pool houses and create an inventory of existing pool houses and guest houses. The Town will work with a nonprofit to connect homeowners to prospective renters. The zoning code amendment will be adopted within one year of Housing Element certification.

D. Adopt an affordable housing impact fee on single family construction. The Town will make available funds from this program to provide very low-income rental assistance for eligible households identified by HIP. The impact fee will be adopted within two years of Housing Element certification.

E. Provide additional fair housing resources and training for property owners, real estate agents, and tenants in collaboration with other cities and towns, Project Sentinel, or other similar organization. Mandate training for multi-family developers, property owners and any resident renting an ADU or similar unit. This program is ongoing during the planning period.

F. Create a webpage to host this information and improve awareness around fair housing training, issues and available programs. The webpage will also provide information on filing fair housing complaints with HCD or

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HUD. This program will be developed within two years of Housing Element certification.

G. Affirmatively market low-income units to households that are underrepresented in the Town in comparison to neighboring jurisdictions. This program will commence within six months of Housing Element certification.

Time frame for implementation: Timeframes listed for each action item.

Agency/Official responsible for implementation: Planning Department Proposed Measurable Outcomes: N/A
Funding Sources: General Fund, Planning Department Budget

3.824 Emergency Shelters, Transitional and Supportive Housing A. Continue to support the possibility of Emergency Shelters, Transitional Housing, and Supportive Housing in Atherton. Emergency shelters are a permitted use on the Town Civic Center Property.

Timeframe for implementation: Ongoing
Agency/Official responsible for implementation: Planning Department Funding Sources: N/A

3.830 Consistency with State Requirements

3.831 Energy Conservation
A. Continue to require compliance with Title 24 of the State’s Building regulations. In addition, disseminate energy conservation information available from other agencies, such as PG&E’s solar subsidy program and energy audits.

B. Continue to support Green Building in Atherton through enforcing the Green Building Ordinance and promote the Town’s Green Building Guide, “Go Green and Save: Rebates for Atherton Residents” and “Clean Energy & Energy Efficiency” programs posted on the website for all new residential development
C. Continue to promote energy conservation through energy audits, participation in PG&E and Cal Water programs and encouraging energy conserving retrofits in homes.

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Time frame for implementation: Ongoing (Long-term Action) Agency/Official responsible for implementation: Building Department Proposed Measurable Outcomes: N/A
Funding Sources: General Fund, Building Department Budget

3.832 Consistency with Other General Plan Elements and Community Goals A. Continue to conduct a review and analysis of the General Plan’s compliance with the adopted Office of Planning and Research Guidelines as part of the annual General Plan implementation report required by Government Code Section 65400.

B. The Town will begin a program to also conduct an internal consistency review and analysis of the General Plan, including the Housing Element as part of the annual General Plan implementation report required by Government Code Section 65400.

Throughout the 2015-22 planning period Planning Department staff prepared and presented to the City Council for approval, a review and analysis of the General Plan for compliance with the adopted Office of Planning and Research Guidelines as part of the annual General Plan implementation report required by Government Code Section 65400. This program will be continued. A program has been added for the 2023-31 planning period to also conduct an internal consistency review and analysis of the General Plan, including the Housing Element as part of the annual General Plan implementation report required by Government Code Section 65400.

The Atherton General Plan was updated in 2019 and as part of the update process it was reviewed for internal consistency and found to be internally consistent. The 2023-31 Housing Element has also been reviewed for internal consistency and consistency with the adopted 2019 General Plan Update.

Time frame for implementation: Ongoing (Long-term Action) Agency/Official responsible for implementation: Planning Department Proposed Measurable Outcomes: N/A
Funding Sources: General Fund, Planning Department Budget

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3.840 Other Housing Programs

3.841 Shared Housing
A. The Town will continue to support the Human Investment Program (HIP), a non-profit organization that matches people needing housing and people owning a home who desire additional income and/or companionship. The Town will make information about the Home Sharing program available at Town Hall and will publicize the effort on the Town’s website. The Town will mail information on the program to all property owners in Town. (Home sharing does not count toward the Town’s Housing Needs Allocation.)
Time frame for implementation: Conduct community outreach by December 31, 2023 and annually thereafter.

Agency/Official responsible for implementation: Planning Department Proposed Measurable Outcomes: 1-2 home share matches each year.

Funding sources: general fund

3.842 Housing Compliance and Monitoring
A. The Town will partner with the County or other jurisdictions to share housing staff or hire a third party to manage the Town’s affordable housing portfolio. This will be an important task in helping Atherton lay the groundwork for an effective affordable housing compliance and monitoring process.

Time frame for implementation: Within one year of Housing Element adoption and ongoing thereafter
Agency/Official responsible for implementation: Planning Department Proposed Measurable Outcomes: Rental of ADUs and production of multifamily housing as identified in the Housing Element Funding Sources: General Fund

3.843 Previously Identified Housing Sites
A. The Town will rezone any sites reused from a prior housing element within three years or one year of the beginning of the planning period to allow residential use by- right for housing developments in which at least 20 percent of the units are

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affordable to lower-income households, and no subdivision is required. (Gov.

Code, § 65583.2, subd. (c).)
Time frame for implementation: complete rezoning within one year of Housing Element certification.

Agency/Official responsible for implementation: Planning Division Proposed Measurable Outcomes: realize the development of new housing units
Funding Sources: General fund

3.844 Water and Sewer Providers - Priority for Affordable Housing A. Water and sewer service providers must establish specific procedures to grant priority water and sewer service to developments with units affordable to lower-income households. (Gov. Code, § 65589.7.) The Town will immediately deliver the housing element to water and sewer service providers upon adoption.

Time frame for implementation: upon adoption of Housing Element Agency/Official responsible for implementation: Planning Division Proposed Measurable Outcomes: notify water and sewer providers Funding Sources: General fund

3.845 Accessory Dwelling Units Monitoring
A. The Town will monitor permitted ADUs and affordability every other year and take appropriate action, including adjusting assumptions or rezoning within one year if the sites inventory is negatively impacted to ensure compliance with no net loss provisions.

Time frame for implementation: ongoing, starting one year after Housing Element adoption
Agency/Official responsible for implementation: Planning Division Proposed Measurable Outcomes: realize development of 280 new housing units
Funding Sources: General fund

3.846 By-Right Permanent Supportive Housing

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A. The Town will revise the zoning code to allow Permanent Supportive Housing a by-right use in zones where multifamily and mixed-uses are permitted, including nonresidential zones permitting multifamily uses pursuant to Government Code section 65651. To be consistent with AB 2162, the Town will allow by-right 100% affordable housing that has 25% or 12 units of permanent supportive housing, where multifamily or mixed-use housing is permitted.

Time frame for implementation: revise Zoning code within one year of Housing Element certification
Agency/Official responsible for implementation: Planning Division Proposed Measurable Outcomes: consistency with State law Funding Sources: general fund

3.847 By-Right Low-Barrier Navigation Centers
A. The Town will revise the zoning code to allow Low Barrier Navigation Centers to be a use-by-right in zones where multifamily and mixed uses are permitted, including nonresidential zones permitting multifamily uses pursuant to Government Code section 65660.

Time frame for implementation: revise Zoning Code within one year of Housing Element certification
Agency/Official responsible for implementation: Planning Division Proposed Measurable Outcomes: consistency with state law Funding Sources: general fund

3.848 Approval of Mobile Homes and Manufactured Housing A. The Town will revise the zoning code to ensure mobile homes and manufactured housing on a permanent foundation are approved in the same manner as single-family homes.

Time frame for implementation: revise Zoning Code within one year of Housing Element certification
Agency/Official responsible for implementation: Planning Division

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Proposed Measurable Outcomes: consistency with state law Funding Sources: general fund

3.849 Zoning, Fees and Other Development Standards Transparency A. The Town will ensure that all fees, zoning requirements and development standards are posted on the Town’s website, updating regularly, pursuant to Government Code section 65940.1(a)(1).

Time frame for implementation: ongoing
Agency/Official responsible for implementation: Planning Division and Finance Director
Proposed Measurable Outcomes: inform residents and developers Funding Sources: general fund

3.850 Group Homes for Persons with Disabilities
A. The Town will revise the zoning code to allow group homes for seven or more residents, specifically for people with disabilities, as a permitted use in any district where residential uses are permitted.

Time frame for implementation: Revise Zoning Code one year from Housing Element certification
Agency/Official responsible for implementation: Planning Division Proposed Measurable Outcomes: consistency with state law Funding Sources: general fund

3.851 Replacement Housing Requirements
A. The Town will require replacement housing for lower-income units (Gov.

Code, § 65583.2, subd. (g)(3).) with the same requirements as set forth in Government Code section 65915, subdivision (c), paragraph (3).

Time frame for implementation: ongoing
Agency/Official responsible for implementation: Planning Division Proposed Measurable Outcomes: consistency with state law

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Funding Sources: general fund

3.852 Employee Housing
A. The Town will amend its zoning code to allow for employee housing as provided for under the Employee Housing Act. Specifically, consistent with Section 17021.5, employee housing for six or fewer employees will be treated as a single-family structure and permitted in the same manner as other dwellings of the same type in the same zone. In addition, the code will be revised consistent with Section 17021.6, which requires that employee housing consisting of no more than 12 units or 36 beds be permitted in the same manner as other agricultural uses in the same zone.

Time frame for implementation: Amend zoning code within one year of Housing Element certification
Agency/Official responsible for implementation: Planning Division Proposed Measurable Outcomes: consistency with state law Funding Sources: general fund

3.853 Emergency Shelters
A. The Town will amend its zoning code to comply with all provisions of State law pertaining to emergency shelters. Specifically, the Town will permit shelters without discretionary action. In addition, the Town will analyze all development standards and address any constraints on spacing and shelter size. Further, the Town will amend its code to ensure compliance with parking requirements of AB139/Government Code section 65583, subdivision (a)(4)(A).

Time frame for implementation: Amend zoning code within one year of Housing Element certification
Agency/Official responsible for implementation: Planning Division Proposed Measurable Outcomes: consistency with state law Funding Sources: general fund

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3.900 EFFORTS TO ACHIEVE COMMUNITY ENGAGEMENT
Extensive public engagement is an essential component to the housing element update process. During this Planning Period, Atherton held several public meetings to discuss the proposed strategies with the community. The Town also partnered with 21 Elements and the Let’s Talk Housing effort to engage with current and potential beneficiaries of housing programs and services and their advocates (e.g., lower income representatives, tenants of affordable complexes, groups targeted for special housing needs consideration, community-based organizations, health and human service providers, homeless shelter and service providers) in the update process. The participation of development professionals including local buildings, for and nonprofit developers, architects, trade labor unions, realtors, mortgage bankers and brokers, area lenders and others have been invited to participate.

The Town also created a Housing Element webpage to advertise meetings, post resources, the Draft Housing Element and a portal to provide public comments.

The community outreach effort coordinated with 21 Elements included virtual community meetings and webinars on the following topics: Introduction to the Housing Element, All About RHNA Webinar, Stakeholder Listening Sessions and Creating an Affordable Future webinars (four-part series).

In addition to the 21 Elements coordinated outreach efforts, the Town held several public meetings to discuss Housing Element programs, policies and strategies as follows:
● City Council meeting on November 4, 2020 to discuss the RHNA allocation process. ● A Joint meeting with the Planning Commission and City Council was held on April 28, 2021 to discuss key strategies to meet the RHNA obligation. ● City Council meeting held on January 12, 2022 to refine the housing element strategies.
● City Council meeting on February 24, 2022 to discuss the housing element strategies.
● City Council meeting on March 16, 2022 to discuss the housing element strategies. ● City Council meeting on May 18, 2022 to review comments from the community outreach meeting and further discuss the housing element strategies. ● Special City Council meeting on May 24, 2022 to provide further direction on the housing element strategies.

The Town held a public engagement/discussion meeting in the evening on April 26, 2022.

A special edition of the Town newsletter was prepared and physically mailed to every

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address in Town describing the proposed Housing Element programs and announcing the community meeting. The event was also promoted through the Town’s email newsletter list, Town website and posted at the Town’s Civic Center. Approximately 60 community members attended. An open discussion/engagement format was used rather than the typical presentation/public hearing and response format. Community leaders (City Council members and others) mixed with community members to discuss a wide variety of housing issues. Some engagement issues included:
● Education on the magnitude of the challenge facing the Town, the need for collaborative solutions, and the impact of non-compliance. ● Issues relating to a proposed multifamily overlay zone, proposed locations and details about the zoning district.
● Some community members truly want to solve the housing problem by adding or registering their ADU or JADU.
● Other community members were interested in being a part of the proposed multifamily overlay zone.
● Questions were raised about how the multifamily overlay zone works for numbers of units produced.
● Better definition of how a density bonus works.
● There were concerns raised about aesthetics and design, however that was not a primary issue for most.
● There was a lingering issue about diminished property values; single-family homes adjacent to multifamily complexes.

The meeting eventually transitioned to a question-and-answer format, which was helpful, but only after an extensive engagement format which provided an opportunity for education and discussion.

Key lessons from the meeting were that senior housing is an important topic for residents.

Many residents feel passionately that they want to continue to live in Atherton as they age. Some are worried that their current houses do not meet their needs and are looking for options to stay.

The Draft Housing Element was published on the Town’s website for a 30-day public review and comment period on June 10, 2022. Notice of the availability of the document was provided via email to Housing Advocates, published in the Almanac Newspaper and announced to residents via the Town’s e-notify system and social media outlets. The City Council, at its June 15, 2022 regular meeting discussed comments they have received individually and provided an opportunity for the public to provide comments.

During the 30-day public review period, the Planning Commission held a Special meeting

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on June 23, 2022 to receive comments from Commissioners and the public. The Town received over 300 written comments on the Draft Housing Element in addition to verbal comments provided at the meetings listed above.

At the July 20, 2022 City Council meeting, the Council discussed public comments received on the Draft Housing Element and directed staff to revise the Draft Housing Element to incorporate public feedback. Specifically, with respect to the overwhelming public comments in opposition of the multi-family overlay concept, the Council directed this program be removed from the Element. Council also requested revisions to several housing programs as suggested by the Housing Leadership Council, including expanding the Accessory Dwelling Unit program.

The City Council, at its July 27, 2022 Special meeting reviewed the revised Draft Housing Element and authorized transmission to HCD for its preliminary review and comments.

The Town received the HCD comment letter on October 31, 2022. The comment letter was reviewed at the November 2, 2022 City Council study session. The Council thoroughly reviewed the HCD comment letter line by line with legal citations. Public comments were received at both meetings and in writing prior to the meeting. Staff/consultants revised the Draft Housing Element to address HCD’s comments as reviewed by the City Council at its December 15, 2022 study session. Public comments were received at the meeting and in writing prior to the meeting. Staff/consultants revised the Housing Element based on City Council direction for its consideration at the January 11, 2023 City Council study session. Public comments were received at this meeting and in writing prior to the meeting. Staff/consultants further revised the Housing Element based on direction provided by the Council and additional outreach meetings were conducted on the revised Housing Element. This included several resident hosted neighborhood meetings conducted throughout the Town, and community meeting on January 12, 2023 at Menlo College.

The revised Draft Housing Element was posted on the Town’s website on January 12, 2023 and notice of the availability of the revised Draft Housing Element was provided to residents, neighboring jurisdictions and housing advocates through direct mail, social media and email.

The Planning Commission considered the Housing Element at a publicly noticed meeting on January 19, 2023.

The City Council certified, adopted and authorized submittal of the Housing Element on January 31, 2023.

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Following adoption and certification of the Housing Element, the Town will continue to engage the community in implementation of the specific programs in the Housing Element throughout the planning period. The Town anticipates that these efforts will include an annual community outreach meeting and quarterly newsletters mailed to each resident in addition to social media posts

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APPENDICES

1. 21 Elements Resident Survey Analysis, 4/14/2022

2. ABAG/MTC Housing Needs Data Report - Atherton

3. AFFH Atherton Map and Data Packet

4. San Mateo County-wide Housing Needs Final Report, 11/3/2021

5. Electronic Housing Element Site Inventory Form

6. Menlo College Faculty and Staff Housing Considerations

7. Letter from 23 Oakwood Property Owner

ATHERON GENERAL PLAN

PROPOSED TEXT AMENDMENTS
JULY 24, 2024
(Text in Red reflects changing to existing (Black) text.) Introduction
I. Purpose
California Government Code Section 65300 requires that the General Plan be comprehensive, internally consistent and long-term. Although it is required to address the issues specified by State law, the General Plan may be ultimately organized in a way that best suits Atherton. The Plan should be clearly written, available to all those concerned with the community’s development and easy to administer. This document supersedes the previous General Plan, adopted in 2002. The Housing Element, however, was independently updated in 2007, and 2014, and 2015. The Town’s Sixth Cycle Housing Element for 2023 through 2031 was, as adopted by the Town on March 18, 2015 January 31, 2023, updated on XXXXX, XX, 2024, and certified by the California State Department of Housing and Community Development remains in effect.

II. General Plan Content
 Housing Element. The Housing Element is intended to provide for the maintenance and development of housing for Town residents. It is completed pursuant to Government Code Section 65585 et seq, which also requires the Housing Element be updated periodically. It contains analyses of existing housing stock, existing and projected housing needs and quantifications of the number of housing units that may be developed, preserved and improved through its policies and actions. The Housing Element covers the Planning period 2014 to 2022 2023-2031.

Atherton General Plan – Proposed Text Amendments – July 2024

Land Use Element
II. Background Information
Residential Land Uses
The Single Family, Low Density designation is applied to all residential lands in Atherton. This land use density is intended to minimize environmental damage to sensitive, scenic and open space areas. The conventional single-family detached home is the standard structural type planned for these areas. Additional uses that may be allowed include accessory dwelling units and other compatible uses identified in the Town’s Municipal Code.

Multifamily uses are allowed only within the designated Multifamily Residential Overlay, as shown in Figure LU-1, and included in the 2023-2031 Housing Element.

Development of these sites must comply with the standards identified in the Town’s Municipal Code with the building intensity and population density summarized in Table LU-1.
…
Table LU-1: Residential Building Intensity and Population Density Residential
Land Use
Category
Building
Intensity
(Units per Net
Acre)
Minimum Lot
Area per
Dwelling
(Square Feet)
Population
Density
Zoning Reference FAR
Single Family,
Low Density
1 43,560 3 R-1A 18%
3 13,500 9 R-1B 20-32%
Multifamily
Overlays
10 Depends on
underlying
Zoning
District
10* RM-10
50%**
and 50%
Lot
Coverage
20 20* RM-20 No FAR;
50% Lot
Coverage 40 40* RM-40
*Based on development of 1 acre lot.
**FAR my increase through incentives to locate parking below grade and sculpt/lower rooflines.

III. Goals, Objectives, Policies and Actions
Policy LU-1.4: Structures higher than 34 feet shall be prohibited.

Atherton General Plan – Proposed Text Amendments – July 2024

Existing Figure LU-1
Revised Figure LU-1

Atherton General Plan – Proposed Text Amendments – July 2024

Noise Element
Table N-2: Land Use Compatibility for Community Environments Land Use Category Community Noise Exposure
Levels Ldn
Residential – Low Density,
Single Family Homes,
Multifamily Overlay Housing
Normally Acceptable
Conditionally Acceptable
Normally Unacceptable
Unacceptable
60 dBA or less
60-65 dBA
65-75 dBA
>75 dBA
Schools, Libraries, Churches
Normally Acceptable
Conditionally Acceptable
Normally Unacceptable
Unacceptable
60 dBA or less
60-70 dBA
70-80 dBA
>80 dBA
Playgrounds and Neighborhood
Parks
Normally Acceptable
Normally Unacceptable
Unacceptable
70 dBA or less
70-75 dBA
>75 dBA

DRAFT TOWN OF ATHERTON
CITY COUNCIL RESOLUTION NO.

A RESOLUTION OF THE CITY COUNCIL OF THE TOWN OF ATHERTON,

CALIFORNIA, ADOPTING AMENDMENTS TO THE ATHERTON GENERAL PLAN TO UPDATE AND IMPLEMENT THE 2023-2031 HOUSING ELEMENT
WHEREAS, the Town of Atherton has been diligently working on an updated Housing Element for the 2023-2031 cycle to identify and address the Town's housing needs; and WHEREAS, the California Legislature has found that “California has a housing supply and affordability crisis of historic proportions. The consequences of failing to effectively and aggressively confront this crisis are hurting millions of Californians, robbing future generations of the chance to call California home, stifling economic opportunities for workers and businesses, worsening poverty and homelessness, and undermining the state’s environmental and climate objectives.” (Gov. Code Section 65589.5.); and
WHEREAS, the Legislature has further found that “Among the consequences of those actions are discrimination against low-income and minority households, lack of housing to support employment growth, imbalance in jobs and housing, reduced mobility, urban sprawl, excessive commuting, and air quality deterioration.” (Gov. Code Section 65589.5.); and WHEREAS, the Legislature adopted the Housing Crisis Act of 2019 (SB 330) which states that “In 2018, California ranked 49th out of the 50 states in housing units per capita… California needs an estimated 180,000 additional homes annually to keep up with population growth, and the Governor has called for 3.5 million new homes to be built over 7 years;” and WHEREAS, State Housing Element Law (Government Code Sections 65580 et seq.) requires that the City Council adopt a Housing Element for the eight-year period 2023-2031 to accommodate the Town of Atherton (Town) regional housing need allocation (RHNA) of 348 housing units, comprised of 94 very-low income units, 54 low-income units, 56 moderate- income units, and 144 above moderate-income units; and
WHEREAS, on January 31, 2023, the City Council of the Town of Atherton approved Resolution 2023–2 adopting an updated Housing Element for the 2023-2031 cycle, which did not constitute a project pursuant to the California Environmental Quality Act (CEQA) and submitted the Housing Element to the State Department of Housing and Community Development for review and certification; and
WHEREAS, on April 4, 2023, the State Department of Housing and Community Development sent a letter to the Town of Atherton indicating that while the adopted housing element addresses many statutory requirements, additional revisions are necessary to substantially comply with State Housing Element Law (Article 10.6 of the California Government Code); and

WHEREAS, the Town of Atherton has continued diligently to address those comments and adopt any related amendments to the Atherton Municipal Code beyond the statutory deadline of January 31, 2023, while also continuing to work on the rezoning amendments to facilitate housing sites as identified in the adopted Housing Element; and WHEREAS, on July 24, 2024, the Planning Commission of the Town of Atherton held a duly noticed public hearing to review the 2023-2031 Housing Element and Zoning Code Update project and an Initial Study/Mitigated Negative Declaration (SCH# 2024050574) to consider public comment and voted to continue the project for further discussion; and WHEREAS, on August 28, 2024, the Planning Commission of the Town of Atherton held a second public hearing to review the 2023-2031 Housing Element and Zoning Code Update project and an Initial Study/Mitigated Negative Declaration (SCH# 2024050574) to consider public comment and voted to recommend adoption; and
WHEREAS, on September 18, 2024, the City Council of the Town of Atherton held a duly noticed public hearing to review the 2023-2031 Housing Element and Zoning Code Update project and an Initial Study/Mitigated Negative Declaration (SCH# 2024050574) to consider public comment and voted to continue the project for further discussion; and WHEREAS, on October 16, 2024, the City Council of the Town of Atherton held a duly noticed public hearing to review the 2023-2031 Housing Element and Zoning Code Update project and an Initial Study/Mitigated Negative Declaration (SCH# 2024050574) to consider public comment and voted to recommend adoption; and
NOW, THEREFORE, BE IT RESOLVED, that the City Council hereby approves the 2023-2031 Housing Element and related General Plan amendments based on the findings, supported by substantial evidence in the record, that:

1. The foregoing recitals are true and correct and are incorporated by reference into this action.

2. The City Council finds and determines that adoption of the Housing Element and Zoning Code Updates project will not have a significant effect on the environment and that an Initial Study/Mitigated Negative Declaration has been prepared and adopted for that project.

3. In accordance with state law, the City Council hereby finds as follows:
a. The 2023-2031 Housing Element and Zoning Code Update project is consistent with and reflective of the General Plan’s goals, policies, and intent to encourage orderly growth and development in a manner that preserves the public's health, safety, and welfare because it addresses changes that have occurred in the Town's housing needs by implementing the policies, procedures, and programs contained in the updated 2023-2031 Housing Element.
b. As required by Government Code Section 65585(e), the City Council has considered the findings made by the Department of Housing and Community Development (HCD) included in the Department’s letter to the Town of Atherton dated April 4, 2023 consistent with Government Code Section 65585(e), and the revised 2023-2031 Housing Element bas been set forth in Attachment 8 in the

staff report, to substantially comply with the requirements of State Housing Element Law as interpreted by HCD.
c. The revised 2023-2031 Housing Element substantially complies with State Housing Element Law, as provided in Government Code 65580 et seq. and contains all provisions required by State Housing Element Law, as shown in Exhibit A to this Resolution, incorporated herein by this reference.

4. The City Council of the Town of Atherton hereby rescinds the current 2023-2031 Housing Element adopted on January 31, 2023; and adopts the revised 2023-2031 Housing Element and related General Plan amendments.

5. The Town Planner is directed to transmit the adopted 2023-2031 Housing Element to the California Department of Housing and Community Development for review pursuant to Government Code Section 65585(g). The Town Planner, in consultation with the City Manager, is further directed and authorized to make all non-substantive changes to the Housing Element to make it internally consistent or to address any non-substantive changes or amendments requested by the Department to achieve certification.

PASSED AND ADOPTED by the City Council of the Town of Atherton on this 16th day of October 2024, by the following vote:

AYES:

NOES:

ABSENT:

ABSTAIN:

Diana Hawkins-Manuelian, Mayor
ATTEST:

Anthony W. Suber, City Clerk
APPROVED AS TO FORM:

Mona Ebrahimi, City Attorney

ATHERON MUNICIPAL CODE

PROPOSED AMENDMENTS
SEPTEMBER 18, 2024
Text in Red reflects changing to existing (Black) text.

Chapter 17.30 USE DISTRICTS DESIGNATED

17.30.080 Zoning Overlay Districts
A zoning overlay district allows for specified uses to be developed on lots with an underlying zoning designation. The uses of land allowed by an overlay zone in each zoning district are listed in tables by zoning district category in subsequent chapters of this4 division. For the purposes of this title, the town is divided into the following classes of overlay districts as shown on the maps hereinafter included by reference:

A. Parker Avenue Overlay Districts (P)
B. Multifamily Overlay District (RM-10)
C. Multifamily Overlay District (RM-20/40)

Atherton Municipal Code – Proposed Amendments – September 2024

Chapter 17.32 RESIDENTIAL DISTRICT R1-A

17.32.030 Allowed Uses and Permit Requirements
Table 17.32.030-1 (Allowed Uses and Permit Requirements for Residential District R1A) identifies the allowed uses in the R-1A zoning district subject to the development standards of this chapter and all other provisions of this title. Allowed use provisions are symbolized in the table as follows:

P =Land use permitted by right
CUP=Land use permitted with approval of a conditional use permit Table 17.32.030-1. Allowed Uses and Permit Requirements for Residential District R-1A
Land Use
Zoning District
R-1A
Single-family dwelling1,3 P
Employee housing4 P
Group homes for persons with
disabilities
P
Home occupations P
Mobile and manufactured
housing8
P
Multifamily residential5, 6, 7 P
Second dwelling unit 2 P
Single room occupancy P
Churches and places of worship CUP
Public utilities or facilities CUP

Atherton Municipal Code – Proposed Amendments – September 2024

Notes:
1 Includes associated accessory uses, accessory buildings, and accessory structures (Note: Garages are accessory buildings).
2 Subject to compliance with section 17.32.040 (Development Standards) and chapter 17.52 (Accessory Dwelling Units).
3 Includes residential care facility (defined as a facility serving six or fewer persons).
4 Agricultural employee housing for six (6) or fewer employees shall be treated as a single-family structure pursuant to California Health and Safey Code Section 17021.5.
5 Shall only be permitted on lots with a Multifamily Overlay District (RM-10) designation. Subject to compliance with objective design standards in section 17.36 (Multifamily Overlay District RM-10).
6 Pursuant to Government Code Section 65651, 100% affordable housing that has 25% or 12 units of permanent supportive housing is principally permitted within the multifamily overlay.
7 Pursuant to Government Code Section 65660, a low-barrier navigation center is principally permitted on any parcel within the multifamily overlay. 8 Mobile homes and manufactured housing shall be constructed on a permanent foundation.

Atherton Municipal Code – Proposed Amendments – September 2024

Chapter 17.33 RESIDENTIAL DISTRICT R1-B

17.33.030 Allowed Uses and Permit Requirements
Table 17.33.030-1 (Allowed Uses and Permit Requirements for Residential District R1B) identifies the allowed uses in the R-1B zoning district subject to the development standards of this chapter and all other provisions of this title. Allowed use provisions are symbolized in the table as follows:

P =Land use permitted by right
CUP=Land use permitted with approval of a conditional use permit Table 17.33.030-1. Allowed Uses and Permit Requirements for Residential District R-1B
Land Use
Zoning District
R-1B
Single-family dwelling1,3 P
Employee housing4 P
Group homes for persons with
disabilities
P
Home occupations P
Mobile and manufactured
housing8
P
Multifamily residential5, 6, 7 P
Second dwelling unit 2 P
Single room occupancy P
Churches and places of worship CUP
Public utilities or facilities CUP
Notes:
1 Includes associated accessory uses, accessory buildings, and accessory structures (Note: Garages are accessory structures).
2 Subject to compliance with section 17.33.040 (Development Standards) and chapter 17.52 (Accessory Dwelling Units).

Atherton Municipal Code – Proposed Amendments – September 2024

3 Includes residential care facility (defined as a facility serving six or fewer persons).
4 Agricultural employee housing for six (6) or fewer employees shall be treated as a single-family structure pursuant to California Health and Safey Code Section 17021.5.
5 Mobile homes and manufactured housing shall be constructed on a permanent foundation.

Atherton Municipal Code – Proposed Amendments – September 2024

Chapter 17.34 PARK AND OPEN SPACE DISTRICT (POS)

17.34.030 Allowed Uses and Permit Requirements
Table 17.34.030-1 (Allowed Uses and Permit Requirements for POS District) identifies the allowed uses in the POS district subject to the development standards of this chapter and all other provisions of this title. Allowed use provisions are symbolized in the table as follows:

P =Land use permitted by right
CUP=Land use permitted with approval of a conditional use permit Table 17.34.030-1. Allowed Uses and Permit Requirements for POS District Land Use
Zoning District
POS
Agriculture P
Ecologic study P
Employee housing2 P
Group homes for persons with
disabilities1
P
Multiple-family residential 1 P
Permanent supportive housing1, P
Public park, recreation, or open
space uses
P
Single room occupancy 1 P
Uses of historic and cultural
value
P
Watershed land and
groundwater recharged land
P
Country clubs CUP
Home occupation CUP
Public utilities and facilities
uses and structures
CUP
Caretaker housing CUP

Atherton Municipal Code – Proposed Amendments – September 2024

1 Shall only be permitted on sites with a Multifamily Overlay District (RM-10) designation. Subject to compliance with objective design standards in section 17.XX (Multifamily Overlay District RM-10).
2 Agricultural employee housing must comply with California Health and Safety Code Section 17021.5.
3 Pursuant to Government Code Section 65651, 100% affordable housing that has 25% or 12 units of permanent supportive housing is principally permitted within the multifamily overlay.
4 The Town shall allow by-right a low-barrier navigation center on any parcel with an RM-10 or RM-20/40 overlay designation.

Atherton Municipal Code – Proposed Amendments – September 2024

Chapter 17.36 PUBLIC FACILITIES AND SCHOOLS DISTRICT (PFS)

17.36.030 Allowed Uses and Permit Requirements
Table 17.36.030-1 (Allowed Uses and Permit Requirements for PFS District) identifies the allowed uses in the PFS district subject to the development standards of this chapter and all other provisions of this title. Allowed use provisions are symbolized in the table as follows:

P =Land use permitted by right
CUP =Land use permitted with approval of a conditional use permit L/ER=Land use permitted with location and environmental review Table 17.36.030-1. Allowed Uses and Permit Requirements for PFS District Land Use
Zoning District
PFS
Public library P
Public school P
Town corporation yard P
Town hall and associated
community uses P
Accessory dwelling unit in
conjunction with multifamily
residential uses
P
Emergency shelters P4
Multiple-family residential
uses that accommodate
housing for very low- and lowincome households
associated with primary
nonresidential use of property
on same site
P5
Single room occupancy P5
Churches and places of
worship
CUP
Convents CUP

Atherton Municipal Code – Proposed Amendments – September 2024

Country clubs CUP
Residential associated with
primary nonresidential use of
property on same site1
CUP
Private schools CUP2,3
Public utilities and facilities,
uses, and structures
CUP
Transportation terminal
facilities
CUP
Notes:
1 Examples include dorms or teacher housing associated with school site, convent when associated with religious institutions, etc. and not located on sites with a multifamily overlay.
2 Where a master plan for a private school has been prepared and filed with the town for public record, any application for a conditional use permit shall be compared to the master plan for consistency with that document. All building and/or faculty changes, improvements, or new construction shall require a conditional use permit.

To that end, all conditional use permit applications shall include the following:
a. Maps and diagrams showing the proposal in relation to the master plan layout; b. History of student and faculty growth and projections of future growth, including an analysis of that growth’s consistency with the master plan projections; c. A traffic and parking analysis of the proposal and comparison to the master plan projections;
d. A circulation plan showing how the traffic and pedestrian circulation will function upon implementation of the proposals; and
e. Other information that might be required for specific proposals, such as noise analyses, lighting plans, landscape screening plans, heritage tree locations, and other similar information.
3 In addition to other conditions of approval, the planning commission shall require the following items where relevant:

Atherton Municipal Code – Proposed Amendments – September 2024

a. Identification of the approved uses and hours of operation; and b. Clustering of high intensity or noise-intense structures and uses (such as gymnasiums, theaters, athletic facilities) away from neighboring residential uses, where possible.
4 Emergency shelters shall be permitted only when located within the Town Civic Center property and pursuant to Section 17.36.060; defined as Lots 1, 2, 24, 25 and 26, Watlinton Park RSM (Resubdivision Maps) 5/8.
5 Where a master plan for a private school has been prepared and filed with the town for public record that includes multifamily residential uses that could accommodate housing for very low- and low-income households, such multifamily residential uses shall be subject to planning commission public hearing and review of the location, size, proximity to heritage trees and environmental aspects of the project but shall not result in the denial of the use.
5 Shall only be permitted on sites with a Multifamily Overlay District (RM-20/40) designation. Subject to compliance with objective design standards in section 17.XX (Multifamily Overlay District RM-20/40).

17.36.060 Standards for Emergency Shelter Operation
The objective and predictable standards listed below apply to emergency shelter operations permitted in the PFS District.

A. Size. Emergency shelters shall not exceed one thousand square feet in floor area.

B.A. Beds and Population. The maximum number of client beds permitted in each emergency shelter shall be three fifteen and the maximum client population permitted to be served nightly by the facility shall be threefifteen.

Any additional beds or population shall require a Conditional Use Permit.

C.B. Location. Each emergency shelter shall not be located within a onethousand-foot radius of another emergency shelter.

D.C. Parking. Parking will be provided at a number sufficient to accommodate staff and will not exceed the required parking standards for other uses in the PFS zone. At least one standard size car parking space per emergency shelter bed shall be provided within fifty feet of the emergency shelter.

Atherton Municipal Code – Proposed Amendments – September 2024

E. Waiting and Client Intake Areas. On-site waiting and client intake areas shall be located within the emergency shelter and shall not exceed two hundred fifty square feet in floor area.

F.D. Handicap Accessibility. Each emergency shelter shall be completely handicap accessible.

G. On-Site Management. Space for on-site management shall not exceed five hundred square feet and shall not include more than two beds.

H.E. Exterior Lighting. All exterior lighting shall be shielded or downlit so the source of light is not visible from other properties.

Atherton Municipal Code – Proposed Amendments – September 2024

Chapter 17.XX MULTI-FAMILY OVERLAY DISTRICT (RM-10)

17.XX.010 Purpose.

This chapter establishes development standards for multi-family uses in the residential multi-family overlay zone with a density of up to ten (10) units per acre. The purpose of this chapter is to establish objective criteria for the evaluation of multi-family housing so that it can be permitted by right on specific parcels that are identified in this document and in the Housing Element of the General Plan, or on additional parcels as designated by the City Council.

17.XX.020 Characteristics of the District.

The residential multi-family 10 overlay zone (RM-10) allows multi-family development of up to ten (10) units per acre on parcels zoned for single-family development (R-1A and R-1B), and park and open space (POS).

17.XX.030 Development Standards.

The approval of multi-family development on any parcel in the RM-10 overlay district shall be considered by right when the proposed development is in compliance with these standards. However, this does not preclude other actions that may require discretionary review (i.e. Lot Redesignations, Variances, or Special Structure Permits).

Accessory Buildings and Structures: see chapter 17.40.

A. Height
The maximum height for main buildings shall be thirty-forty (34) feet.

1. Vertical sidewalls and columns built at the setback line shall not exceed thirty (30) feet at the front setback, and twenty-one (21) feet at the side and rear setbacks. Sidewall and column height can exceed these limits with an additional setback that is increased by a ratio of one (1) foot for each one (1) foot increase in height. See figure 17.36.030-1 (Sidewall Height).

2. Height measurement: see chapter 17.42.030.

3. Dormers can exceed the vertical sidewall height and shall be in compliance with development standards in chapter 17.32.040(A)(4)(a and b).

Atherton Municipal Code – Proposed Amendments – September 2024

Figure 17.XX.030-1: Sidewall Height

B. Setbacks
A setback shall be required from all property lines.

There is an additional setback requirement on side and rear property lines that are adjacent to a parcel with an R-1 zoning designation. This requirement shall not apply if the adjacent parcel has an RM-10 overlay designation.

Minimum setback requirements are:

1. Front Yard.

Main building, interior, and corner lots: thirty (30) feet minimum. Where the main building height at the front yard setback is more than thirty (30) feet, the minimum front yard setback shall increase by a ratio of one (1) foot for each one (1) foot increase in height above thirty (30) feet. See figure 17.XX.030-2 (Front Setback).

Atherton Municipal Code – Proposed Amendments – September 2024

Figure 17.XX.030-2: Front Setback

2. Side Yard.

Minimum side yard requirements are shown in Table 17.XX.030.B.2-1; however, where the main building height at the side yard setback is greater than twenty-one (21) feet, the side yard setback shall increase by a ratio of one (1) foot for each one (1) foot increase in height above twenty-one (21) feet. See figure 17.XX.030-3 (Side/Rear Yard Setbacks).

Minimum side yards shall be required on each side of a lot as specified in the following Table:

Table 17.XX.030.B.2-1. Minimum Side Yard Requirements
LOT WIDTH Minimum Side Yard
From To Standard R-1-adjacent*
170’ or over 20’ 40’
165’ 170’ 20’ 38’
160’ 165’ 19’ 36’
155’ 160’ 18’ 34’
150’ 155’ 17’ 32’
145’ 150’ 16’ 30’
140’ 145’ 15’ 28’
140’ or less 15’ 25’
* R-1-adjacent setback does not apply to parcels with an RM-10 overlay designation.

Atherton Municipal Code – Proposed Amendments – September 2024

3. Rear Yard.

Minimum rear yard requirements are shown in Table 17.XX.030.B.3-1; provided, however, where the main building height placed at the setback is between twenty-one (21) and forty (40) feet, the rear yard shall be increased by a ratio of one (1) foot for each one (1) foot increase in height. See figure

17.XX.030-3 (Side/Rear Setbacks).

A minimum rear yard shall be required as specified in the following Table:

Table 17.XX.030.B.3-1. Minimum Rear Yard Requirements
LOT WIDTH Minimum Rear Yard
From To Standard R-1-adjacent*
170’ or over 20’ 50’
165’ 170’ 20’ 47’
160’ 165’ 20’ 44’
155’ 160’ 20’ 41’
150’ 155’ 20’ 37’
145’ 150’ 20’ 33’
140’ 145’ 20’ 29’
140’ or less 20’ 25’
* R-1-adjacent setback does not apply to parcels with an RM-10 overlay designation.

Figure 17.XX.030-3: Side/Rear Setbacks

Atherton Municipal Code – Proposed Amendments – September 2024

C. Floor Area Ratio
The maximum floor area ratio shall be fifty (50) percent of the lot size. Lots with a combining designation of POS shall designate a project site and floor area standards shall be applied. Habitable attic space and below grade parking shall not count towards floor area ratio.

D. Lot Coverage
The maximum lot coverage for buildings, including accessory buildings, shall be forty (40) percent of the lot size. The maximum coverage for all impervious surfaces, not including buildings, shall be twenty (20) percent. The maximum total coverage of all buildings and impervious surfaces shall be fifty (50) percent.

On properties with an underlying POS zoning designation the lot coverage requirement shall apply to any area of the site that facilitates the development of multifamily housing, including ancillary buildings and structures.

Table 17.36.030.C-1
Lot Coverage
Building Impervious Surface Lot
40% 20% 50%
E. Site Design
Requirements for design of the site are:

1. All building entries, including garages and parking areas, shall be connected with a pedestrian pathway that is at least three (3) feet in width.

2. Pedestrian pathways are prohibited within ten (10) feet of a property line adjacent to a parcel with an R-1 zoning designation and no RM-10 overlay.

3. The minimum distance between main buildings on the same lot is twenty (20) feet.

4. Communal outdoor kitchens, pools, and playgrounds shall not be allowed within any setback area.

5. Solid masonry walls or wood fencing shall be provided along all side and rear property lines with a minimum height of eight (8) feet.

6. Vehicle Access.
a. An entry to an underground parking garage is allowed within the front setback. Any grade change resulting from an underground driveway approach shall be set back eight (8) feet from the property line. b. Surface parking shall not be allowed within any setback.

Atherton Municipal Code – Proposed Amendments – September 2024

c. If a vehicle entry gate is provided, it shall be set back from the front property line for a minimum of twenty (20) feet so as to provide a space for vehicle queuing.
d. The maximum driveway width shall be twenty (20) feet and in conformance with minimum requirements for waste and recycling removal.
e. Driveways shall conform to the requirements of the Fire Marshal. f. Driveway visibility. All driveways that intersect with a public right-of-way shall maintain a vision triangle delineated by sides of 10 feet along the right-of-way and 10 feet perpendicular to the right-of-way measured from the edges of the driveway. Within this vision triangle, structures, landscaping, and other obstructions shall have a maximum height of 3 feet. Trees are permitted within the vision triangle provided their canopy maintains a clearance of 6 feet above ground level.

7. Pedestrian Access.
a. A pedestrian entry gate shall be required if a vehicle entry gate is provided.
b. A paved pedestrian pathway shall provide direct access to all entries to a main building and connect with a public pathway.
c. Pedestrian pathways shall be demarcated from driveways with decorative paving materials that include brick, patterned or colored concrete, stone blocks, and pavers.

8. Streetscape Design.
a. A public pathway shall be provided for the full length of the front property line.
b. The pathway shall be a minimum width of five (5) feet. c. The pathway shall meet ADA requirements and be free from obstruction.
d. The pathway shall be designed in compliance with the Bicycle and Pedestrian Master Plan.
e. Any tree removal to accommodate a pathway shall be in compliance with heritage tree protections provided in chapter 8.10.

F. Landscape Screening
All property lines shall provide a landscape screening area in conformance with chapter 17.50 and the standards in this section. Where standards conflict, the most restrictive standard shall apply.

1. Plantings shall be installed within ninety (90) days of the issuance of a building permit.

Atherton Municipal Code – Proposed Amendments – September 2024

2. Plantings shall reach a minimum height of twelve (12) feet within three (3) years of planting.

3. All trees and shrubs shall be evergreen.

4. If the property line is screened with existing landscaping that is at least twelve (12) feet tall and provides opaque screening, no new landscaping is required.

G. Building Massing
Minimum Building Massing requirements are:

1. The maximum aggregate length of all façade segments facing in a common direction shall not exceed one-hundred and twenty (120) feet per building, as measured wall-to-wall. Overlapping wall segments shall not be counted towards the aggregate. See Figure 17.XX.030-4a (Maximum Aggregate Façade Length).

Figure 17.XX.030-4a: Maximum Aggregate Façade Length

2. For any building façade facing the front of a lot and located on or within ten (10) feet of the setback, the maximum aggregate length shall be fifty-five (55) feet. Any portion of the front façade that causes the aggregate length to exceed fifty-five (55) feet shall be set back a minimum of ten (10) feet from the front setback line. See Figure 17.XX.030-4b (Maximum Aggregate Façade on Front Setback).

Atherton Municipal Code – Proposed Amendments – September 2024

Figure 17.XX.030-4b: Maximum Aggregate Façade on Front Setback

3. For any building façade facing the side of a lot and located on or within ten (10) feet of the setback, the maximum aggregate façade length shall be sixtyfive (65) feet. Any portion of the side façade that causes the aggregate length to exceed sixty-five (65) feet shall be set back a minimum of ten (10) feet from the side setback line. See figure 17.XX.030-4c (Maximum Aggregate Façade Length on the Setback).

Figure 17.XX.030-4c: Maximum Aggregate Façade Length on Side Setback

Atherton Municipal Code – Proposed Amendments – September 2024

H. Façade Design
Minimum Façade Design requirements are:

1. Primary entries: A primary entry provides access to one or more units from the exterior of a main building and shall not be counted as floor area. A primary entry shall conform to the following standards:
a. Any main building shall be limited to a maximum of four (4) primary entries.
b. Primary entries shall face the lot interior or front property line. c. A maximum of two (2) primary entries can face a public right-of-way. d. A primary entry shall not encroach beyond the setback line, awnings and eaves are exempt from this requirement.

In addition to the standards in H.1, a primary entry shall be designed in accordance with one or more of the five frontage typologies listed in standards H.2 through H.6, below. Frontage typologies can be combined in which case all standards shall apply. If standards contradict, the most restrictive standard shall apply.

2. Common Entry: A common entry provides direct access to a lobby or common space on the ground floor, which provides access to individual units. See figure

17.XX.030-5 (Common Entry).

3. Stoop: A stoop is a small, raised entry that shall provide direct access to no more than two (2) units. A stoop shall conform with the following standards.

See figure 17.XX.030-6 (Stoop).

4. Porch: A porch is a fully covered structure that projects from or is included as part of the main building façade. A porch shall conform with the following standards. See figure 17.XX.030-7 (Porch).

5. Patio: A patio is a private space outside the front door of a unit that is defined by a low wall or hedge extending from the façade. See figure 17.XX.030-8 (Patio).

6. Frontage Court: A frontage court is an open-air space on the building frontage with primary entries oriented to the courtyard interior. A forecourt shall conform with the following standards. See figure 17.XX.030-9 (Frontage Court).

7. Balconies or decks shall not be allowed on walls that face an adjacent property developed with a single-family dwelling, or on portions of any perimeter wall within twenty-five (25) feet of the setback line from an R-1 parcel. Roof decks shall not be permitted. See figure 17.XX.030-10 (Balcony Placement).

Atherton Municipal Code – Proposed Amendments – September 2024

Table 17.XX.030.H.2-1. Common Entry Requirements
Common Entry
Minimum Maximum
Depth 18 inches 4 feet
Width 4 feet 12 feet
Height (Clear) 8 feet 12 feet
Weather protection shall be provided with a projection or recession for a minimum depth of eighteen (18) inches.

Figure 17.XX.030-5: Common Entry

Atherton Municipal Code – Proposed Amendments – September 2024

Table 17.XX.030.H.3-1. Stoop Requirements
Stoop
Minimum Maximum
Depth (Landing) 3 feet 8 feet
Width (Landing) 5 feet 8 feet
Width (Stairs) 4 feet 8 feet
Height (Landing) 1 foot 4 feet
Weather protection shall be provided with a projection or recession for a minimum depth of twelve (12) inches.

Figure 17.XX.030-6: Stoop

Atherton Municipal Code – Proposed Amendments – September 2024

Table 17.XX.030.H.4-1. Porch Requirements
Porch
Minimum Maximum
Depth 8 feet 15 feet
Width 15 feet 40 feet
Width (Stairs) 4 feet 8 feet
Height (Landing) 1 foot 4 feet
Height (Clear) 8 feet 12 feet
The entire porch area shall be covered.

Figure 17.XX.030-7: Porch

Atherton Municipal Code – Proposed Amendments – September 2024

Table 17.XX.030.H.3-1. Patio Requirements
Patio
Minimum Maximum
Depth (Landing) 5 feet 8 feet
Width (Landing) 15 feet 24 feet
Height (Landing) No Minimum 1 foot
Height (Fence/Wall) 1 foot 4 feet
A patio shall provide direct access to no more than two (2) units.

Figure 17.XX.030-8: Patio

Atherton Municipal Code – Proposed Amendments – September 2024

Table 17.XX.030.H.6-1. Frontage Court Requirements
Frontage Court
Minimum Maximum
Depth 15 feet 30 feet
Width 25 feet 40 feet
Height (above grade) No Minimum 1 foot
A frontage court shall provide direct access to no more than four (4) units.

The height of sidewalls facing the courtyard shall not exceed a 2:1 ratio to its depth or width.

Figure 17.XX.030-9: Frontage Court
Figure 17.XX.030-10: Balcony Placement

Atherton Municipal Code – Proposed Amendments – September 2024

8. Minimum Window Detail requirements are:
a. Windows shall be recessed at least two (2) inches from the exterior wall plane to the window glass. See figure 17.XX.030-11 (Window Detail Requirements).
b. Windowsills shall project a minimum of two (2) inches from the surrounding exterior wall plane. See figure 17.XX.030-11 (Window Detail Requirements).
c. All windowsills for non-sleeping rooms facing an R-1 district, located on the second floor or higher, shall be elevated a minimum of fifty-four (54) inches above the finish floor. See figure 17.XX.030-12 (Sill Height). d. Windows shall be vertically oriented and taller than they are wide. e. All privacy windows shall be translucent but not transparent, reflective glass is prohibited.

Figure 17.XX.030-11: Window Detail Requirements
Figure 17.XX.030-12: Sill Height

Atherton Municipal Code – Proposed Amendments – September 2024

I. Façade Material Requirements
The following materials shall be prohibited on any main building façade:

1. An exterior insulation finishing system (EIFS).

2. Aluminum lap siding

3. T1-11 siding

4. Vinyl siding
J. Roof and Eave Details
Minimum Roof and Eave Detail requirements are:

1. Roof eaves may encroach beyond the setback line up to a maximum of four (4) feet on the main building.

2. Roof parapets, when included, shall be a minimum of three (3) feet tall and may not exceed the maximum building height. Roof parapets shall be consistent in material and color with the main building.

3. Asphalt shingles are prohibited.

4. Any equipment placed on the rooftop of a building shall be screened entirely.

K. Site Lighting
Minimum Site Lighting requirements are:

1. No exterior lighting element shall be placed more than height of eight (8) feet above the ground plane unless required by the California Building Code. All exterior lighting shall be directed downward and fully shielded to restrain light to a minimum thirty (30) degrees beneath the horizontal plane of the light source. Lighting shall be arranged so that the light will not shine directly onto any adjacent lot.

2. Up-lighting of trees and permanent lighting within trees is prohibited.

L. Accessory Buildings
Where standards in this section conflict with chapter 17.40, the most restrictive standard shall apply.

1. Accessory Buildings
a. Accessory buildings shall not be allowed in the front setback. Accessory buildings in the side and rear setbacks shall be set back from the property line for a minimum of ten (10) feet. This requirement shall be fifteen (15) feet when adjacent to a parcel with an R-1 zoning designation.
b. A special structures permit shall be required for all sports courts, pools, and outdoor kitchens.

Atherton Municipal Code – Proposed Amendments – September 2024

2. Garages
a. All garages shall be completely enclosed and include a lockable garage door.
b. Materials and colors on garages shall be consistent with the materials and colors utilized on the main building(s).

3. Carports
a. Carports shall be enclosed on three sides.

4. Trash and Recycling Enclosures
a. Trash disposal and recycling areas shall be within an enclosure and shown on the site plan. Trash will be collected on the subject property. b. Each enclosure shall screen trash and recycling receptacles from public view.
c. Trash and recycling enclosures shall be a minimum of eight (8) feet high, constructed of solid wood or masonry painted the same color as the main building(s).
d. Trash and recycling enclosures shall have a gate and a roof. e. Trash and recycling enclosures are not permitted within the front setback.

5. Mailboxes
a. Mailboxes shall be outside of the public right-of-way. b. Projects with six (6) or more dwelling units shall cluster mailboxes in a common centralized location that is part of or within twenty-five feet of a residential building.

M.Parking Requirements

1. Vehicle Parking
Minimum parking requirements are:
a. All resident parking spaces shall be in a garage or below-grade. b. Resident parking spaces shall be provided at a minimum rate of one (1) parking space per bedroom up to a maximum of two (2) spaces per unit.
c. Up to three (3) resident spaces can be provided if all resident parking for the unit is located below grade.
d. Guest parking spaces shall be provided at a minimum rate of fourtenths (0.4) per unit. e. Total resident and guest parking shall not exceed two-and-a-half (2.5) total spaces per unit.
f. Surface parking areas are not permitted within any setback.

2. Bicycle Parking
Minimum bicycle parking requirements are:

Atherton Municipal Code – Proposed Amendments – September 2024

a. Resident bicycle parking shall be provided at a minimum rate of one (1) bicycle parking space per dwelling unit.
b. Bicycle parking facilities shall be located on the ground floor and shall not be located between the building and the street.
c. Bicycle parking that is placed below grade shall not be counted as contributing to the floor area.

Atherton Municipal Code – Proposed Amendments – September 2024

CHAPTER 17.37 MULTI-FAMILY OVERLAY DISTRICT (RM-20/40)

17.37.010 Purpose.

This chapter establishes development standards for multi-family uses in the residential multi-family overlay zone with a density of up to twenty (20) units per acre, and up to forty (40) units per acre, on lots with the RM-20 or RM-40 designation. The purpose of this chapter is to establish objective criteria for the evaluation of multi-family housing so that it can be permitted by right on specific lots that are identified in this document and in the Housing Element of the General Plan, or on additional lots as designated by the City Council.

17.37.020 Characteristics of the District.

The residential multi-family 20 overlay zone (RM-20) allows multi-family development of up to twenty (20) units per acre on identified portions of lots that are zoned as public facilities and schools (PFS) or public open space (POS). Development within the RM-20 district shall have minimum of twelve (12) units per acre.

The residential multi-family 40 overlay zone (RM-40) allows multi-family development of up to forty (40) units per acre on identified portions of the Menlo College Campus (zoned PFS).

Development within the RM-40 district shall have a minimum of twenty-four (24) units per acre.

17.37.030 Development Standards.

The approval of multi-family development on any parcel in the RM-20/40 overlay district shall be considered by right when the proposed development is in compliance with these standards. However, this does not preclude other actions that require discretionary review (i.e. lot redesignations, variances, or special structure permits). Adjoining parcels with a PFS zoning designation and RM-20 or RM-40 zoning overlay can be treated as a single parcel.

Accessory Buildings and Structures: see chapter 17.40.

Atherton Municipal Code – Proposed Amendments – September 2024

A. Height
The maximum height for main buildings shall be forty-eight (48) feet, provided that the vertical midpoint between the eave and the top of roof does not exceed forty-two (42) feet. If the main building has a flat roof, the maximum height is fortytwo (42) feet. See figure 17.XX.030-1 (Maximum Height).

Figure 17.XX.030-1: Maximum Height

1. Vertical sidewalls and columns built at the setback line shall not exceed thirty-four (34) feet. Vertical sidewalls and columns built at the setback line shall not exceed twenty-one (21) feet when facing an adjacent R-1 parcel. Sidewall and column height can exceed these limits with an additional setback that is increased by a ratio of one (1) foot for each one (1) foot increase in height. See figure 17.XX.030-2 (Sidewall Height).

2. Height measurement: see chapter 17.42.030.

3. Dormers can exceed the vertical sidewall height and shall be in compliance with development standards in chapter 17.32.040.(4).

Atherton Municipal Code – Proposed Amendments – September 2024

Figure 17.XX.030-2: Sidewall Height

B. Setbacks
A setback shall be required from all property lines.

Minimum setback requirements are:

1. The minimum spacing between any main buildings shall be twenty (20) feet.

2. General Setbacks:
a. The minimum setback from the property line is twenty (20) feet. See figure 17.XX.030-3A (Setbacks).
b. Where the height of a main building placed at the setback is between thirty-four (34) and forty-eight (48) feet, the setback shall be increased by a ratio of one (1) foot for each one (1) foot increase in height. See figure 17.XX.030-3A (Setbacks).

Atherton Municipal Code – Proposed Amendments – September 2024

Figure 17.XX.030-3A: Setbacks

3. R-1 Adjacent Setbacks:
a. The minimum setback from any property line that is adjacent to a parcel with an R-1 zoning designation shall be thirty (30) feet. See figure

17.XX.030-3B (R-1 Adjacent Setbacks).
b. Where the height of a main building placed at an R-1 adjacent setback is between twenty-one (21) and forty-eight (48) feet, the setback shall be increased by a ratio of one (1) foot for each one (1) foot increase in height. See figure 17.XX.030-3B (R-1 Adjacent Setbacks).

Figure 17.XX.030-3B: R-1 Adjacent Setbacks

Atherton Municipal Code – Proposed Amendments – September 2024

C. Lot Coverage
The maximum lot coverage for buildings, including accessory buildings, shall be forty (40) percent of the lot size. The maximum coverage for all impervious surfaces, not including buildings, shall be twenty (20) percent. The maximum total coverage of all buildings and impervious surfaces shall be fifty (50) percent.

On properties with an underlying PFS zoning designation the lot coverage requirement shall apply to any area of the site that facilitates the development of multifamily housing, including ancillary buildings and structures.

Table 17.XX.030.C-1
Lot Coverage
Building Impervious Surface Lot
40% 20% 50%
D. Site Design
Requirements for design of the site are:

1. Outdoor pools, kitchens, or playgrounds that are ancillary to the residential buildings shall not be allowed within any setback area.

2. Vehicle Access.
a. Direct ingress/egress to below grade parking or an accessory parking structure shall not be allowed on any street that is designated as a highway or a minor arterial in the Atherton General Plan. In lieu of this requirement, then the applicant may provide a traffic study that provides an alternative recommendation which the project implements.
b. Surface parking introduced as part of a new multifamily development shall not be allowed within any setback.
c. Driveway access shall only be provided from a local street, as designated in the Atherton General Plan, or from internal site circulation.
d. The maximum driveway width shall be twenty (20) feet. e. Driveways shall conform to the requirements of the Fire Marshal. f. Driveway visibility. All driveways that intersect with a public right-of-way shall maintain a vision triangle delineated by sides of 10 feet along the right-of-way and 10 feet perpendicular to the right-of-way measured from the edges of the driveway. Within this vision triangle, structures, landscaping, and other obstructions shall have a maximum height of 3 feet. Trees are permitted within the vision triangle provided their canopy maintains a clearance of 6 feet above ground level.

Atherton Municipal Code – Proposed Amendments – September 2024

3. Pedestrian Access.
a. All building entries shall be connected with resident parking areas by a pedestrian pathway that is at least five (5) feet in width. b. Pedestrian pathways are prohibited within ten (10) feet of a property line adjacent to a parcel with an R-1 zoning designation. c. Pedestrian pathways shall be demarcated with decorative paving materials that include brick, patterned or colored concrete, stone blocks, and pavers.

4. Streetscape Design.
a. A public pathway shall be provided for the full length of the site frontage with a street.
b. The pathway shall be a minimum width of five (5) feet. c. The pathway shall meet ADA requirements and be free from obstruction.
d. The pathway shall be designed in compliance with design guidelines provided in section 3.2 of the Bicycle and Pedestrian Master Plan. e. All trees removed to accommodate a pathway shall be replaced. Tree removal shall adhere to heritage tree protections provided in chapter

8.10. E. Landscape Screening
All property lines adjacent to new structures shall be screened according to the standards in chapter 17.50 and the standards in this section. Where standards conflict, the most restrictive standard shall apply.

1. Plantings shall be installed within ninety (90) days from the issuance of a building permit.

2. Plantings shall reach a minimum height of twelve (12) feet within three (3) years of planting.

3. All trees and shrubs shall be evergreen.

4. If the property line is screened with existing landscaping that is at least twelve (12) feet tall and opaque, no new landscaping is required.

F. Building Massing
Minimum Building Massing requirements are:

1. The maximum aggregate façade length: The aggregate length of all façade segments facing in a common direction shall not exceed one-hundred forty (140) feet per building, as measured wall-to wall. See figure 17.XX.030-4A (Maximum Aggregate Façade Length).

Atherton Municipal Code – Proposed Amendments – September 2024

Figure 17.XX.030-4A: Maximum Aggregate Façade Length

2. For any building façade located at the required setback or within ten (10) feet of a required setback, the maximum aggregate façade length shall be sixtyfive (65) feet. Any portion of the façade that causes the aggregate length to exceed sixty-five (65) feet shall be set back a minimum of ten (10) feet from the front setback line. See figure 17.XX.030-4B (Maximum Aggregate Façade on Setback).

Figure 17.37.030-4B: Maximum Aggregate Façade on Setback G. Façade Design
Minimum Façade Design requirements are:

1. Primary entries: A primary entry provides access to one or more units from the exterior of a main building and shall conform to the following standards:
a. A main building shall be limited to a maximum of four (4) primary entries.

Atherton Municipal Code – Proposed Amendments – September 2024

b. No primary entry shall face a highway as designated in the Atherton General Plan.
c. On building sides facing a local street, as designated by the Atherton General Plan, a maximum of three (3) primary entries shall be allowed.

In addition to the standards in G.1, a primary entry shall include one or more of the three frontage typologies listed in standards G.2 through G.4, below:

2. Common Entry: A common entry is a large opening that leads directly into a lobby or common space on the ground floor. A common entry shall comply with the following standards. See figure 17.XX.030-5 (Common Entry).

Table 17.XX.030.G.2-1. Common Entry Requirements
Common Entry
Minimum Maximum
Depth 2 feet 6 feet
Width 8 feet 16 feet
Height (Clear) 8 feet 14 feet
Weather protection shall be provided with a projection or recession with a minimum depth of four (4) feet.

A common entry shall provide access to all units within a main building.

Figure 17.XX.030-5: Common Entry

Atherton Municipal Code – Proposed Amendments – September 2024

3. Stoop: A stoop is a small, raised entry that shall conform with the following standards.

See figure 17.XX.030-6 (Stoop).

Table 17.XX.030.G.3-1. Stoop Requirements
Stoop
Minimum Maximum
Depth (Landing) 3 feet 8 feet
Width (Landing) 5 feet 8 feet
Width (Stairs) 4 feet 8 feet
Height (Landing) 1 foot 4 feet
Weather protection shall be provided with a projection or recession for a minimum depth of twelve (12) inches.

A stoop shall provide direct access to no more than two (2) units.

Figure 17.XX.030-6: Stoop

Atherton Municipal Code – Proposed Amendments – September 2024

4. Frontage Court: A frontage court is an open-air space on the building frontage with primary entries oriented to the courtyard interior. A forecourt shall conform with the following standards. See figure 17.XX.030-7 (Frontage Court).

Table 17.XX.030.G.4-1 Frontage Court Requirements
Frontage Court
Minimum Maximum
Depth 15 feet 30 feet
Width 25 feet 50 feet
Height (above grade) No Minimum 1 foot
A frontage court shall provide direct access to no more than four (4) units.

The height of sidewalls facing the courtyard shall not exceed a 2:1 ratio to its depth or width.

Figure 17.XX.030-7: Frontage Court

Atherton Municipal Code – Proposed Amendments – September 2024

5. Terrace: A terrace is an elevated area for pedestrian circulation along a building frontage that provides access to one or more primary entries. See figure 17.XX.030-8 (Terrace).

Table 17.XX.030.G.5-1 Terrace Requirements
Terrace
Minimum Maximum
Depth 10 feet 24 feet
Height (above grade) 1 foot 3 feet
Height (wall or railing) 30 inches 42 inches
Terrace stairs shall be spaced no more than twenty-five (25) feet apart.

A terrace shall provide direct access to no more than four (4) units.

Figure 17.XX.030-8: Terrace

Atherton Municipal Code – Proposed Amendments – September 2024

6. Balconies or decks shall not be allowed on walls that face an adjacent R-1 parcel, or on portions of any perimeter wall within twenty-five (25) feet of the setback from the R-1 parcel. Roof decks shall not be permitted. See figure 17.XX.030-9 (Balcony Placement).

Figure 17.XX.030-9: Balcony Placement

7. Minimum Window Detail requirements are:
a. Windows shall be recessed at least two (2) inches from the exterior wall plane to the window glass. See figure 17.XX.030-10 (Window Detail Requirements). b. Windowsills shall project a minimum of two (2) inches from the surrounding exterior wall plane. See figure 17.XX.030-10 (Window Detail Requirements).

Figure 17.XX.030-10: Window Detail Requirements

Atherton Municipal Code – Proposed Amendments – September 2024

c. All windowsills for non-sleeping rooms facing an R-1 district, located on the second floor or higher, shall be elevated a minimum of fifty-four (54) inches above the floor plate. See figure 17.XX.030-11 (Sill Height).

Figure 17.XX.030-11: Sill Height
d. Windows shall be vertically oriented and taller than they are wide. e. All privacy windows shall be translucent but not transparent, reflective glass is prohibited.

H. Façade Material Requirements
The following materials shall be prohibited on any main building façade:

1. An exterior insulation finishing system (EIFS).

2. Aluminum lap siding

3. T1-11 siding

4. Vinyl siding
I. Roof and Eave Details
Minimum Roof and Eave Detail requirements are:

1. Roof eaves may encroach into any yard not to exceed a maximum of four (4) feet on the main building.

2. Roof parapets, when included, shall be a minimum of three (3) feet tall and may not exceed the maximum building height. Roof parapets shall be consistent in material and color with the main building.

3. Asphalt shingles are prohibited

4. Any equipment placed on the rooftop of a building shall be screened entirely.

Atherton Municipal Code – Proposed Amendments – September 2024

J. Site Lighting
Minimum Site Lighting requirements are:

1. No exterior lighting element shall be placed above the height of eight (8) feet above the ground plane unless required by the California Building Code. All exterior lighting shall be directed downward and fully shielded to restrain light to a minimum thirty (30) degrees below the horizontal plane of the light source. Lighting shall be arranged so that the light will not shine directly onto any adjacent lot.

2. Up-lighting of trees and permanent lighting within trees is prohibited.

K. Accessory Buildings and Uses
Where standards in this section conflict with chapter 17.40, the most restrictive standard shall apply.

1. Accessory buildings
a. Accessory buildings shall not be allowed in a setback that faces a public right-of-way. Accessory buildings shall be set back from the property line for a minimum of five (5) feet, or a minimum of fifteen (15) feet on a property line that is adjacent to an R-1 parcel.

2. Trash and Recycling Enclosures
a. Trash disposal and recycling areas shall be within an enclosure and shown on the site plan.
b. Each enclosure shall screen trash and recycling receptacles from public view.
c. Trash and recycling enclosures shall be a minimum of eight (8) feet high, constructed of solid wood or masonry painted the same color as the main building(s).
d. Trash and recycling enclosures shall have a gate and a roof. e. Trash and recycling enclosures are not permitted within any setback.

3. Mailboxes
a. Projects with six (6) or more dwelling units shall cluster mailboxes in a common centralized location that is part of or within twenty-five feet of a residential building.
b. Mailboxes shall be located outside of the public right-of-way.

Atherton Municipal Code – Proposed Amendments – September 2024

L. Parking
Minimum Parking requirements are:

1. Vehicle Parking
a. There is no minimum resident or guest parking requirement for housing located within the PFS zone.
b. Total resident and guest parking shall not exceed one-and-a-quarter (1.25) spaces per unit.
c. Total resident and guest parking can be increased to a maximum of two (2) spaces per unit if all the resident and guest parking spaces are provided in a below-grade parking garage.

2. Parking Garage Design
a. No more than twenty-five (25) percent of any ground floor façade shall be dedicated to garage openings.
b. Garaged parking that is above grade shall be screened from a public right-of-way with livable space that has a minimum depth of twenty (20) feet.
c. Partially sub-grade parking shall not have an exposed façade that exceeds five (5) feet above grade and shall provide landscape screening with a minimum depth of ten (10) feet along the entire façade length.

3. Bicycle Parking
Minimum bicycle parking requirements are:
a. Resident bicycle parking shall be provided at a minimum rate of one (1) bicycle parking space per dwelling unit.
b. Bicycle parking facilities shall be located on the ground floor and shall not be located between the building and the street.
c. Bicycle parking that is placed below grade shall not be counted as floor area.

ATHERTON ZONING MAP

PROPOSED AMENDMENTS
JULY 24, 2024
Existing Zoning Map
Revised Zoning Map

Data source: Town of Atherton; San Mateo County GIS Enterprise Data; Esri Basemap Existing Atherton Zoning Map
PFS
POS
PFS
PFS
POS
PFS
PFS
PFS
PFS
PFS
POS
R-1A
R-1A
PFS
R-1B
PFS
PFS
PFS
R-1B POS
R-1A
Town of Atherton 0 0.5 1 Mile
Atherton Housing Element | Atherton, California

Data source: Town of Atherton; San Mateo County GIS Enterprise Data; Esri Basemap Proposed Multifamily Overlay Zoning Map Amendment
PFS
POS
PFS
PFS
POS
PFS
PFS
PFS
PFS
PFS
POS
R-1A
R-1A
PFS
R-1B
PFS
PFS
PFS
R-1B POS
R-1A
Town of Atherton
0 0.5 1 Mile
RM-10 Overlay Sites
RM-20 Overlay Sites
RM-40 Overlay Sites
Atherton Housing Element | Atherton, California

DRAFT ORDINANCE NO. ___

AN ORDINANCE OF THE CITY COUNCIL OF THE TOWN OF ATHERTON TO AMEND TITLE 17 ZONING OF THE ATHERTON MUNCIPAL CODE AND THE ZONING MAP TO IMPLEMENT THE 2023-2031 HOUSING ELEMENT AND ZONING CODE UPDATES

PROJECT
WHEREAS, the Town of Atherton has been diligently working on an updated Housing Element for the 2023-2031 cycle to identify and address the Town's housing needs; and WHEREAS, the California Legislature has found that “California has a housing supply and affordability crisis of historic proportions. The consequences of failing to effectively and aggressively confront this crisis are hurting millions of Californians, robbing future generations of the chance to call California home, stifling economic opportunities for workers and businesses, worsening poverty and homelessness, and undermining the state’s environmental and climate objectives.” (Gov. Code Section 65589.5.); and
WHEREAS, the Legislature has further found that “Among the consequences of those actions are discrimination against low-income and minority households, lack of housing to support employment growth, imbalance in jobs and housing, reduced mobility, urban sprawl, excessive commuting, and air quality deterioration.” (Gov. Code Section 65589.5.); and WHEREAS, the Legislature adopted the Housing Crisis Act of 2019 (SB 330) which states that “In 2018, California ranked 49th out of the 50 states in housing units per capita… California needs an estimated 180,000 additional homes annually to keep up with population growth, and the Governor has called for 3.5 million new homes to be built over 7 years;” and WHEREAS, State Housing Element Law (Government Code Sections 65580 et seq.) requires that the City Council adopt a Housing Element for the eight-year period 2023-2031 to accommodate the Town of Atherton (Town) regional housing need allocation (RHNA) of 348 housing units, comprised of 94 very-low income units, 54 low-income units, 56 moderate- income units, and 144 above moderate-income units; and
WHEREAS, on January 31, 2023, the City Council of the Town of Atherton approved Resolution 2023–2 adopting an updated Housing Element for the 2023-2031 cycle, which did not constitute a project pursuant to the California Environmental Quality Act (CEQA) and submitted the Housing Element to the State Department of Housing and Community Development for review and certification; and
WHEREAS, on April 4, 2023, the State Department of Housing and Community Development sent a letter to the Town of Atherton indicating that while the adopted housing element addresses many statutory requirements, additional revisions are necessary to substantially comply with State Housing Element Law (Article 10.6 of the California Government Code); and

Attachment 14
Ordinance ______ Page 2 of 3 Date
WHEREAS, the Town of Atherton has continued diligently to address those comments and adopt any related amendments to the Atherton Municipal Code beyond the statutory deadline of January 31, 2023, while also continuing to work on the rezoning amendments to facilitate housing sites as identified in the adopted Housing Element; and WHEREAS, on July 24, 2024, the Planning Commission of the Town of Atherton held a duly noticed public hearing to review the 2023-2031 Housing Element and Zoning Code Update project and an Initial Study/Mitigated Negative Declaration (SCH# 2024050574) to consider public comment and voted to continue the project for further discussion; and WHEREAS, on August 28, 2024, the Planning Commission of the Town of Atherton held a second public hearing to review the 2023-2031 Housing Element and Zoning Code Update project and an Initial Study/Mitigated Negative Declaration (SCH# 2024050574) to consider public comment and voted to recommend adoption; and
WHEREAS, on September 18, 2024, the City Council of the Town of Atherton held a duly noticed public hearing to review the 2023-2031 Housing Element and Zoning Code Update project and an Initial Study/Mitigated Negative Declaration (SCH# 2024050574) to consider public comment and voted to continue the project for further discussion; and WHEREAS, on October 16, 2024, the City Council of the Town of Atherton held a duly noticed public hearing to review the 2023-2031 Housing Element and Zoning Code Update project and an Initial Study/Mitigated Negative Declaration (SCH# 2024050574) to consider public comment and voted to recommend adoption; and
NOW, THEREFORE, BE IT RESOLVED, that the City Council hereby approves the 2023-2031 Housing Element and related General Plan amendments based on the findings, supported by substantial evidence in the record, that:

The City Council of the Town of Atherton does hereby ordain as follows:

Section 1. Recitals. The recitals set forth above are true and correct and are hereby incorporated herein by this reference as if fully set forth in their entirety.

Section 2. Findings. In accordance with all requirements Atherton Municipal Code Section 17.18.040, the City Council hereby finds that the proposed Zoning Code and Map Amendments are consistent with the goals, policies, and implementation of the Atherton General Plan.

Section 3. Compliance with CEQA. The proposed Zoning Code and Map Amendments have been reviewed with respect to applicability of the California Environmental Quality Act ("CEQA") and the State CEQA Guidelines (California Code of Regulations, Title 14, Sections 15000 et seq.). The Zoning Code and Map Amendments related to the implementation of the 2023- 2031 Housing Element were analyzed in, are contemplated by, and are consistent with the adopted Initial Study/Mitigated Negative Declaration (SCH# 2024050574) and Mitigation Monitoring and Reporting Program.

Attachment 14
Ordinance ______ Page 3 of 3 Date
Section 4. Adoption of Zoning Code Amendments. The City Council of the Town of Atherton hereby adopts the Zoning Code Amendments as provided in Exhibit “A” attached hereto and incorporated by reference.

Section 5. Adoption of Zoning Map Amendments. The City Council of the Town of Atherton hereby adopts the Zoning Map Amendments as provided in Exhibit “B” attached hereto and incorporated by reference.

Section 6. Effective Date. This ordinance shall be posted in at least three public places according to law and shall take effect and be in force from and after 30 days after its passage and adoption.

Town of Atherton, a municipal corporation.

MAYOR: __________________________________

DIANA HAWKINS MANUELIAN
ATTEST: __________________________________

ANTHONY SUBER, CITY CLERK
APPROVED AS TO FORM: __________________________________

MONA EBRAHIMI, CITY ATTORNEY

Item No. 8
Town of Atherton
CITY COUNCIL STAFF REPORT – REGULAR AGENDA
TO: HONORABLE MAYOR AND CITY COUNCIL
FROM: GEORGE RODERICKS, CITY MANAGER
DATE: SEPTEMBER 18, 2024
SUBJECT: CONSIDERATION AND DIRECTION REGARDING ADOPTION OF A TOWN CHARTER – TO INCLUDE APPOINTMENT OF A

STANDING SUBCOMMITTEE OF THE CITY COUNCIL

RECOMMENDATION
It is recommended that the Council receive the staff report, discuss and provide direction regarding adoption of a Town Charter, to include consideration of appointment of a Standing Subcommittee of the City Council.

BACKGROUND
At the June 5, 2024 Study Session the City Council discussed the possibility of pursuing a Town Charter (Staff Report Link HERE). Following discussion, the Council directed that staff return in September with a recommendation on next steps for discussion by the Council.

ANALYSIS
Attached to this Staff Report for Council reference are the following:
- Attachment 1 – League of Cities Charter City Toolkit
- Attachment 2 – Table Comparing General Law to Charter City - Attachment 3 – Government Code Section 34450 (governing adoption of charters) - Attachment 4 – Simple Town Charter
- Attachment 5 – Draft Charter Prepared by Council Subcommittee in 2013 The June 5, 2024 Staff Report provided an analysis of pros and cons of enacting a Town Charter.

Following discussion in June, the Council directed that staff return with a recommendation for next steps.

Drafting of a Charter
Pursuant to Government Code Section 34450 et seq., a Charter may only be adopted, amended or repealed by majority voter approval. A charter can be drafted by a “charter commission” (elected

Charter City Discussion
SEPTEMBER 18, 2024

by the voters), a charter committee (appointed by the City Council), or by the City Council itself.

When drafted by a charter committee of a City Council or the City Council itself, the Council decides whether or not to submit the draft charter to the electorate. If a charter commission drafts the charter, the commission is entitled to submit the charter to the voters with or without Council approval.

Timeline
With an elected commission, there is an extended timeline for adoption. This is due to the election of members of the commission itself in addition to the election for the charter. This would place the timing for the elected commission on the November 2026 ballot and the charter itself, assuming the work is completed, on the November 2028 ballot. Elections cannot take place at special elections.

For a charter drafted by the Council (either through a Council Subcommittee or by the Council itself), it must be submitted to the electorate for approval. The earliest this could take place would be November 2026. As noted in the June 5, 2024 Report, there are numerous timelines prescribed in State law for process. The City Council cannot vote to place a charter on the ballot until 21 days.

After it holds at least two public hearings on the matter, with each hearing preceded by 21 days’ notice and the second public hearing at least 30 days after the first. Typically, this timeline prescribes that the final version of any charter must be prepared no later than the June preceding the November election (June 2026).

Advantages and Disadvantages
There are advantages of charter city status. While many historic advantages have been eroded over time by State law, the list below still provides advantage to local charter cities:
- The Town would be able to exercise greater local control over municipal affairs, as allowed by the State.
- As to municipal elections, the City Council could prescribe longer or shorter filing periods, longer or shorter notices of elections, different nominating procedures, different terms of office, district elections, different procedures for voting by mail or other election procedures.
- The Town would be able to charge different fees or compensation than that which is prescribed in State law, coupled with the constitutional authority to regulate the granting of franchises.
- Public works contracting procedures on Town-financed projects could be made more flexible, as could procedures with respect to bond financing. - Ordinance adoption processes could be modified.
- A charter city can override statutory limitations placed upon the levy of a business tax and allows for more options with respect to property transfer taxes. - A charter city has some additional flexibility, but not unlimited flexibility, with respect to planning and land use.

While there are no actual legal disadvantages with charter city status, the Council should take the following under consideration. Page 1535 of 1727
Charter City Discussion
SEPTEMBER 18, 2024

- There is time, effort and expense required to draft a charter and hold the election. - A local charter will not be a barrier to matters determined by the State to be “of statewide concern” as has recently been the case with the numerous housing laws recently promulgated by the State.
- The transition from operation as a “general law” city to a “charter city” may require some adjustment in other processes and procedures. Ultimately, there may be additional tests and reviews for conformity to a Town Charter that did not exist prior to adoption of a charter. - The simple or complex nature of any adopted charter may result in situations where matters are debated as to whether they are municipal concerns (i.e. local charter) or of statewide concern. This could give rise to legal debate and conflict when seeking resolution.

Future Amendments
Once adopted, an existing charter may be amended or repealed only by a majority vote of the electorate. A measure to amend or repeal a charter may be placed on the ballot by the City Council or by initiative petition of the electorate.

Next Steps
If the Council is desirous of pursuing adoption of a charter, staff does not recommend the formation of a charter commission. Staff recommends that the Council consider discussion as a full Council or as a Standing Subcommittee, Standing Subcommittee is preferred. Either of these options will allow the participation of the public in discussions as all meetings of the Council or Standing Subcommittees are Brown Act compliant meetings (agendas, minutes regularly scheduled meetings). At a minimum, the City Manager, City Attorney, and City Clerk would be involved at the staff level.

If the Council desires to move forward with a Standing Subcommittee, appointments could be made at this meeting along with direction regarding a Subcommittee charter. Staff would recommend the following for Council’s consideration:
• Create a Standing Subcommittee of the Council by appointing two members of the City Council
• Direct the charter of the Subcommittee as follows:
o Work with staff to create a draft charter for the Council’s future consideration with a target of November 2026 presentation to the electorate o Staff liaisons to the Subcommittee shall include the City Manger, City Attorney and City Clerk
o Work of the Subcommittee shall be conducted at regularly noticed public meetings o Subcommittee shall report out to the City Council at regular intervals

Charter City Discussion
SEPTEMBER 18, 2024

FISCAL IMPACT
None at this time. Establishment of a Standing Subcommittee will commit staff time and resources to support the work of the Standing Subcommittee.

GOAL ALIGNMENT
This Report and its contents are in alignment with the following Council Policy Goals:
• Goal Area B – Preserve Small Town Character and Quality of Life • Goal Area F – Be Forward-Thinking, Well-Managed, and Well-Planned

POLICY FOCUS
Policy focus for the Council is on the pros and cons of the formation of a Town Charter and the process by which to engage the public in the discussion.

PUBLIC NOTICE
Public notification was achieved by posting the agenda, with this agenda item being listed, at least 72 hours prior to the meeting in print and electronically. Information about the project is also disseminated via the Town’s electronic News Flash and Atherton Online. There are approximately 1,200 subscribers to the Town’s electronic News Flash publications. Subscribers include residents as well as stakeholders –to include, but be not limited to, media outlets, school districts, Menlo Park Fire Protection District, service provides (water, power, and sewer), and regional elected officials.

COMMISSION/COMMITTEE FEEDBACK/REFERRAL
This item has not been before a Town Committee or Commission

ATTACHMENTS

1. League of Cities Charter City Toolkit

2. Comparison General Law to Charter City

3. Government Code Provisions Regarding Adoption of City Charters

4. Sample Simple Charter

5. Draft Charter from 2013

Charter City Toolkit

THE LEAGUE OF CALIFORNIA CITIES
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ii LEAGUE OF CALIFORNIA CITIES: CHARTER CITY TOOL KIT

ACKNOWLEDGEMENTS
The League thanks the following individuals for their work on this publication:

Editorial Board — Charter City Toolkit
Amy Albano, Committee Chair
City Attorney, Burbank
Kimberly Hall Barlow
City Attorney, West Covina
Michael W. Barrett
City Attorney, Napa
Stephen P. Deitsch
City Attorney, Arcadia, Big Bear Lake, Indian Wells and Shafter Gregory Diaz
City Attorney, Ventura
Roy Hanley
City Attorney, Solvang
Shiri Klima
Assistant City Attorney, Oxnard
Kathryn Phelan
Assistant City Attorney, Arvin
Cara E. Silver
Senior Assistant City Attorney, Palo Alto
Michele Beal Bagneris
Director, City Attorneys’ Department
City Attorney, Pasadena
League Staff:

Patrick Whitnell, General Counsel
Corrie Manning, Senior Deputy General Counsel
Alison Leary, Deputy General Counsel
Janet Leonard, Legal Assistant
Charter City Toolkit
Copyright © 2000, 2007, 2010, 2013, 2016
League of California Cities®
All rights reserved. This publication, or parts thereof, may not be reproduced in any form without the permission of the League of California Cities®.

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LEAGUE OF CALIFORNIA CITIES: CHARTER CITY TOOL KIT 1
Contents
CHAPTER 1: HISTORY OF MUNICIPAL HOME RULE ............................................ 2 A. Before Home Rule — 1850–1879.......................................................................................2 B. All Cities Granted Inherent Home Rule Powers to Legislate without Legislative Grant of Authority — 1879...............................................................................2 C. Voter Approved Charters Allowed to Trump State Law over Municipal Affairs — 1896–1914..........................................................................................................4 D. Home Rule Authority Granted to All Cities over Public Works, Utilities and Public Property, Improvements and Funds — 1911–1970 ................................................5 E. California Home Rule Today ...............................................................................................6 CHAPTER 2: CHARTER CITY’S ADDITIONAL HOME RULE AUTHORITY.............. 8 A. What is a Charter?..............................................................................................................8 B. Interpretation of a Charter: Limitation of Authority not a Grant of Authority ...................9 C. Municipal Affairs...............................................................................................................10 CHAPTER 3: DRAFTING, ADOPTING, AMENDING AND
CHALLENGING A CHARTER ............................................................................... 26 A. Adopting, Amending, and Repealing a Charter................................................................26 B. Drafting the Charter .........................................................................................................26 C. Length...............................................................................................................................27 D. How Much Detail? ............................................................................................................28 E. CEQA Compliance ............................................................................................................28 F. Meyers-Milias-Brown Act Compliance for Labor Items ...................................................29 G. Voter Approval..................................................................................................................29 H. Procedures for Amended or Repealed Charter ...............................................................30 I. Challenging Adoption, Amendment or Repeal of a Charter ............................................32 CHAPTER 4: CHARTER CITY ORGANIZATION AND ELECTIONS ....................... 34 A. Form of Government........................................................................................................34 B. Organization Considerations............................................................................................36 C. Elections ...........................................................................................................................38 CHAPTER 5: COMMON CONCERNS ABOUT CHARTER CITIES......................... 43 A. Growth of Statewide Concerns........................................................................................43 B. Compensation of Elected Officials...................................................................................47 C. Bankruptcy .......................................................................................................................48 D. Labor Relations.................................................................................................................49 E. Cost to Become a Charter City ........................................................................................51 CHAPTER 6: CONCLUDING THOUGHTS ............................................................. 56 Agenda Item 12 CC Agenda 01-07-20 Attachment 1 Agenda Item 12 Page No. 189 CC Agenda 01-07-20

2 LEAGUE OF CALIFORNIA CITIES: CHARTER CITY TOOL KIT
CHAPTER 1: HISTORY OF MUNICIPAL HOME RULE
The desire for home rule is an important part of the history of California. There is a common misconception among even some California city officials that only charter cities possess home rule powers. Both general law and charter cities possess home rule. This chapter describes the historical evolution of the constitutional municipal home rule doctrine in California in three separate stages before embarking in later chapters on explaining in more detail the additional home rule powers of charter cities. The tension between cities and the state has been with us since the dawn of statehood, and it has manifested itself in various state constitutional amendments over time that reiterate how home rule is really the birthright of every California city.

A. Before Home Rule — 1850–1879
City governments already existed when California became a state in 1850. In some areas they took the form of the Mexican alcades (who embodied the role of mayor, judge, and sheriff) or local legislative bodies like the 15-member assembly created in San Francisco before it was declared illegal by a military governor in June 1849 when he called the first Constitutional Convention.1 The 1849 California Constitution gave the Legislature the exclusive power to establish cities and to enlarge or restrict city powers.2
This naturally led to extensive state involvement in city affairs, including the appointment of special commissions to actually manage the property and funds of Sacramento, San Jose, and San Francisco, as well as other legislation directing cities to pay special claims of parties that provided political inducements to the Legislature.3 B. All Cities Granted Inherent Home Rule Powers to Legislate Without Legislative Grant of Authority — 1879
State meddling in city affairs in those first 30 years caused the deep resentment throughout the state that ultimately led to the 1879 Constitutional Convention. During that convention, delegates borrowed heavily from the home rule provisions of the constitution of Missouri, the first state to grant home rule powers to its cities. Incorporating that constitution’s provisions almost verbatim, the California Constitution of 1879 banned special legislation, banned special act incorporations, and granted the power to frame freeholder charters to communities with at least 100,000 people4 The 1879 Constitution also took the power to impose local taxes away from the Legislature with the intention “to bring matters of a local concern home to the people.”5 In addition to these changes, the most significant home rule provision in the 1879 amendments was article XI, section 11 (now art. XI, § 7), which provides a general grant of inherent home rule power to every city — general and charter cities alike — to “make or enforce within its limits all local, police, sanitary, and other ordinances or regulations not in conflict with the general laws.” Sometimes this provision of the California Constitution is called the police power. The California Supreme Court declared later that the drafters’ intent was “ … to emancipate municipal governments from the authority and control formerly exercised over them by the Legislature.”6 Chapter 1

HISTORY OF MUNICIPAL HOME RULE
The desire for home rule
is an important part of the
history of California.

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LEAGUE OF CALIFORNIA CITIES: CHARTER CITY TOOL KIT 3
The 1879 home rule amendment finally freed cities from the need to seek specific state legislation to authorize their legislative acts on traditional municipal matters. Since the constitution empowered them to act without prior permission of the Legislature, cities instead simply had to inquire whether a proposed ordinance conflicted with a general state law. Years later the California Court of Appeal described the effect of this amendment: “[t]he constitution has, by direct grant, vested in them [cities] plenary power to provide and enforce such … regulations as they determine shall be necessary for the health, peace, comfort and happiness of their inhabitants, provided such regulations do not conflict with the general law. And the Legislature has no authority to limit the exercise of the power thus directly conferred upon cities, counties and towns by the organic law.”7 Former California Supreme Court Associate Justice and Hastings College of the Law Professor Joseph Grodin, in his authoritative study of the California Constitution, explains how section 7 changed everything for cities and counties:

Section 7 presents the most widely used of the home rule provisions of the California Constitution. In contrast to sections 4 and 5, it applies equally to all cities and counties, regardless of their charter status. Section 7 empowers cities and counties to use their general authority, called their police power, to control and regulate any matter or activity that is otherwise an appropriate subject for governmental concern.

The drafters intended that local authorities “ought to be left to do all those things that in their judgment are necessary to be done, and that are not in conflict with the general laws of the state.” The decision was made then not to restrict local governments narrowly to those specified powers that are overtly granted to them by the legislature but to allow them to exercise whatever powers appeared necessary, without the need to request legislative authorization before taking action.”8 (Emphasis added.) In summary, under article XI, section 7, all cities are free to legislate on a matter unless it conflicts with a general law of the state and is, therefore, said to be preempted by the state law. What constitutes a conflict? The California Supreme Court articulated the basic analysis in upholding the validity of a city ordinance banning medical marijuana dispensaries and cultivation. In summary, it said:
ƒ Cities have constitutionally granted powers to regulate land use and other traditional local matters. Absent a clear indication of preemptive intent from the Legislature, local regulations are not preempted.
ƒ A local law conflicts with a general state law if the local legislation (1) duplicates the state law, (2) contradicts the state law (i.e., requires what state law forbids or prohibits what state law requires), or (3) enters an area that is fully occupied by general state law. A local ordinance does not conflict with state law if it is reasonably possible to comply with both the state and local laws.
ƒ The courts are reluctant to infer legislative intent to preempt local regulations, and there is a presumption of validity of the local ordinance against an attack of state preemption when there is a significant local interest to be served that may differ from one locality to another.9
The 1879 home rule
amendment finally freed cities
from the need to seek specific
state legislation to authorize
their legislative acts on
traditional municipal matters.

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4 LEAGUE OF CALIFORNIA CITIES: CHARTER CITY TOOL KIT
CHAPTER 1: HISTORY OF MUNICIPAL HOME RULE
C. Voter Approved Charters Allowed to Trump State Law Over Municipal Affairs — 1896–1914
While the 1879 Constitution gave all cities basic home rule powers subject to conflicting state laws, over the following decade it became clear that cities needed the ability to engage in certain core municipal functions despite the conflicting general laws of the state. The 1896 Constitution introduced the concept of municipal affairs. The authority to adopt a charter is found in section 3 of article XI, which also contains this provision in subparagraph (a) explaining the status of the charter vis-à-vis state law: “The provisions of a charter are the law of the State and have the force and effect of legislative enactments.” In 1899, the California Supreme Court explained that provisions relating to charter cities “were enacted upon the principle that the municipality itself knew better what it wanted and needed than the state at large, and to give that municipality the exclusive privilege and right to enact direct legislation which would carry out and satisfy its wants and needs.”10
The 75 years of constitutional history leading to the authorization for voters to approve city charters that could, depending on the subject, supersede the general laws of the state, was explained by the California Supreme Court in 1992:
ƒ [I]n 1896 article XI was amended in two significant respects. Former section 6 was revised to read as follows: “Cities or towns heretofore or hereafter organized, and all charters thereof framed or adopted by authority of the constitution, except in municipal affairs, shall be subject to and controlled by general laws.” (emphasis added.) In addition, former section 8 was adopted, allowing consolidated charter city and county governments to regulate “the manner in which, the times at which, and the terms for which the several county officers shall be elected ... [and] for their compensation ... .” ƒ “What was the good to be gained by this amendment? The answer is common, everyday history. It was to prevent existing provisions of charters from being frittered away by general laws. It was to enable municipalities to conduct their own business and control their own affairs to the fullest possible extent in their own way. It was enacted upon the principle that the municipality itself knew better what it wanted and needed than the state at large, and to give that municipality the exclusive privilege and right to enact direct legislation which would carry out and satisfy its wants and needs. ... This amendment, then, was intended to give municipalities the sole right to regulate, control, and govern their internal conduct independent of general laws ... .” ƒ [A]rticle XI [in 1914] was revised to give charter cities the power “to make and enforce all laws and regulations in respect to municipal affairs, subject only to the restrictions and limitations provided in their several charters, and in respect to other matters they shall be subject to and controlled by general laws.” (Former section 8 of the same article was likewise amended by the insertion of a similar provision: “It shall be competent in any charter framed under the authority of this section to provide that the municipality governed thereunder may make and enforce all laws and regulations in respect to municipal affairs, subject only to the restrictions and limitations provided in their several charters and in respect to all other matters they shall be subject to general laws.”11 “The provisions of a charter
are the law of the State and
have the force and effect of
legislative enactments.” Cal.

Const., art. XI, § 3(a).

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LEAGUE OF CALIFORNIA CITIES: CHARTER CITY TOOL KIT 5
In addition to the jurisdiction granted in subdivision (a) of section 5 of article XI to make and enforce all ordinances and regulations concerning municipal affairs, subdivision (b) of section 5 of article XI specifically identifies four subjects that can be included in a charter: (1) a city police force; (2) subgovernment in all or part of the city; (3) conduct of city elections; and (4) election, appointment, removal, and compensation of municipal officers and employees whose compensation is paid by the city.12
The California Constitution provides no definition of what is or is not a municipal affair. The California Supreme Court noted that “the constitutional concept of municipal affairs is not a fixed or static quantity … [but one that] changes with the changing conditions upon which it is to operate … our cases display a growing recognition that home rule is a means of adjusting the political relationship between state and local governments in discrete areas of conflict.”13 What was once a matter of local concern can later become a matter of statewide concern, controlled by the general laws of the state.14 The Court also made it clear that this is a legal matter of state constitutional interpretation for the courts and not solely a factual one.15 Later chapters will address the options available for adopting a charter and what are and are not municipal affairs as determined by the California Supreme Court.

D. Home Rule Authority Granted to All Cities over Public Works, Utilities and Public Property, Improvements and Funds — 1911–1970
Until 1911, it was believed that only charter cities could operate a public utility, so the Legislature proposed and the people enacted section 9 (formerly section 19) of article XI, providing broad plenary authority to any city to “establish, purchase, and operate public works to furnish its inhabitants with light, water, power, heat, transportation, or means of communications.”16 The section allows cities to provide similar services in other cities with their consent.

In 1970, voters further amended this section to effectively allow cities to issue franchises to persons or corporations to provide such services “ … upon conditions and under regulations that the city may prescribe under its organic law.” These franchise powers must be construed, however, in conjunction with the broad authority over such activities granted to both the Legislature and the Public Utilities Commission by article XII. On the distribution of powers between the state and cities on this subject, however, article XII, section 8 is quite clear:

A city, county, or other public body may not regulate matters over which the Legislature grants regulatory power of the Commission. This section does not affect the power over public utilities relating to the making and enforcement of police, sanitary, and other regulations concerning municipal affairs pursuant to a city charter existing on October 10, 1911, unless that power has been revoked by the city’s electors, or the right of any city to grant franchises for public utilities or other businesses on terms, conditions, and in the manner prescribed by law. (Emphasis added.)
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6 LEAGUE OF CALIFORNIA CITIES: CHARTER CITY TOOL KIT
CHAPTER 1: HISTORY OF MUNICIPAL HOME RULE
Finally, general law and charter cities alike are protected by the provisions of article XI, section 11, subdivision (a), of the California Constitution that prohibits just the types of special commissions to control local property and funds that so outraged Californians prior to the 1879 Constitutional Convention. It states: “the Legislature may not delegate to a private person or body power to make, control, appropriate, supervise, or interfere with county or municipal corporation improvements, money, or property, or to levy taxes or assessments, or perform municipal functions.” This provision was one of the two constitutional limitations on the power of the Legislature over cities and counties that compelled the California Supreme Court to strike down a 2000 state law that attempted to delegate final decisions in public safety labor negotiations to a private arbitration panel.17
E. California Home Rule Today
Today the California Constitution authorizes both general law and charter cities to: (1) make and enforce all local laws and regulations not in conflict with general state laws (art. XI, § 7); (2) to establish, purchase, and operate public works and utilities or franchise others to do so (art. XI, § 9); and to be free from state legislation delegating to a private person or body control over city property, funds, tax levies and municipal functions (art. XI, § 11).

Cities with voter-approved charters have additional home rule authority or supremacy over their municipal affairs, police, subgovernments, city elections, and their elected and appointed city officials and employees (art. XI, § 5). The provisions of a city charter and the ordinances adopted by a charter city prevail over general state law in areas that a court determines are municipal affairs, including the specific areas enumerated in section 5, subdivision (b) of article XI.18 As to matters of statewide concern, however, charter cities remain subject to state law.19 Therefore, whether a charter city may act independent of state general law in a particular domain, including the specific areas enumerated in section 5, subdivision (b) of article XI, depends upon a court’s determination of whether it is a municipal affair or a matter of statewide concern.

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LEAGUE OF CALIFORNIA CITIES: CHARTER CITY TOOL KIT 7

ENDNOTES
1 See Detweiler, Home Rule: An Historical Perspective (Jan. 1997) Western City, at page 15. 2 Johnson v. Bradley (1992) 4 Cal.4th 389, 394-395.
3 See Thomas, California Cities and the Constitution of 1879: General Laws and Municipal Affairs (1980) 7 Hastings Const. L. Q. 642.
4 See Detweiler, supra note 1, at p. 16.
5 People v. Martin (1882) 60 Cal. 153; See Cal. Const., art. XIII, § 24, subd. (b). 6 People v. Hoge (1880) 55 Cal. 612, 618.
7 In re Walter Ackerman (1907) 6 Cal.App. 5, 9–10.
8 Grodin et al., The Cal. State Constitution: A Reference Guide (1993) pp. 192 (citing remarks of Mr. Eli Blackmer during debates at the California constitutional convention). 9 City of Riverside v. Inland Empire Patients Health and Wellness Center, Inc. (2013) 56 Cal.4th 729, 742- 744. It is worthy of note that this case involves the regulatory legislation of a charter city, the City of Riverside, since charter cities as well as general law cities exercise home rule under the inherent police power granted to all cities by article XI, section 7. In other words, the City of Riverside did not rely on its status as a charter city under article XI, section 5, but rather on its home rule authority under article XI, section 7.
10 Fragley v. Phelan (1899) 126 Cal. 383, 387.
11 Johnson v. Bradley (1992) 4 Cal.4th 389, 395-397. (Emphasis in original) Empty brackets [] denote omitted language from the Supreme Court opinion.
12 In some cases, the courts have narrowly construed the subject matter described in section 5, subdivision (b) of article XI. See, e.g., Baggett v. Gates (1982) 32 Cal.3d 128 (applying the Public Safety Officers Procedural Bill of Rights to charter cities because it was limited to providing “procedural safeguards” to police officers and did not interfere with a charter city’s authority to set compensation). 13 State Building and Construction Trades Council of California v. City of Vista (2012) 54 Cal.4th 547, 557. 14 Bishop v. City of San Jose (1969) 1 Cal.3d 56, 61; California Fed. Sav. & Loan Assn. v. City of Los Angeles (1991) 54 Cal.3d 1, 13 (rejecting static and compartmentalized description of “municipal affairs” in favor of a more dialectical one); Codding Enterprises v. City of Merced (1974) 42 Cal.App.3d 375, 377. 15 State Building and Construction Trades Council of California v. City of Vista, supra, 54 Cal.4th at 558. 16 California Apartment Association v. City of Stockton (2000) 80 Cal.App.4th 699, 707. 17 County of Riverside v. Superior Court (2003) 30 Cal.4th 278. 18 Cal. Const., art. XI, § 5; Sonoma County Organization of Public Employees v. County of Sonoma (1979) 23 Cal.3d 296, 315.
19 Bishop v. City of San Jose, supra, 1 Cal.3d at p. 61.

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8 LEAGUE OF CALIFORNIA CITIES: CHARTER CITY TOOL KIT
CHAPTER 2: A CHARTER CITY’S ADDITIONAL HOME RULE AUTHORITY Chapter 2
A CHARTER CITY’S ADDITIONAL HOME RULE AUTHORITY
This chapter will discuss more fully the origins of city charters, why a city may want to have a charter, how the charter home rule provision has been interpreted by the courts and ultimately, for practical purposes, what power a charter city possesses.

A. What is a Charter?
Charters have been used since medieval times in Europe and more recently in the United States and elsewhere to establish and empower cities and other institutions such as colleges and universities, companies, academies, and clubs. The British Crown has reportedly issued over 980 royal charters — the first of which was for the Town of Tain in 1066 — and continues to issue charters today.1
A charter is granted by a sovereign authority such as a monarch, parliament, legislature, or by direct public vote. After only a few months of difficulty with granting city charters in early 1850, the California Legislature gave the job to county courts and then in 1856 to county boards of supervisors.2
In 1879, the California Constitution was amended to authorize voters to approve freehold charters3
in cities with over 100,000 residents.4 This authority was subsequently expanded through later amendments to give the voters in any city the right to approve a charter for their city.

The dictionary defines a charter as “a document issued by a government that gives rights to a person or group; a document which declares that a city, town, school, or corporation has been established; and a document that describes the basic laws, principles, etc. of a group.”5 California
city charters today most closely resemble the last definition in that the municipal charter provides the highest legal framework for the purpose, governance, and operation of the city government in all its most fundamental dimensions. There is one important difference between the dictionary definition of a charter and the charter of a California city: the charter of a California city is a limitation on authority, not a grant. The grant of authority over municipal affairs is found in the Constitution itself.

The purpose of a city charter, as one of the authors of the National Civic League’s Model City Charter, Luther H. Gulick, wrote: “is to present, in the form of a legal document, a general plan of municipal government which is (a) democratic — that is to say responsive to the electorate and the community — and at the same time (b) capable of doing the work of the city effectively and translating the voters’ intentions into efficient administrative action as promptly and economically as possible.”6
A city charter can have two purposes: to explain how the city will exercise its discretion over the matters affecting the city, and to limit or constrain the ways in which the city is governed and its municipal affairs are managed. It is what some charters refer to as the organic law of the city with city-council adopted ordinances containing many of the detailed laws and regulations.

Preamble of Downey City
Charter: “We, the people of
the City of Downey, State
of California, do ordain and
establish this Charter as the
organic law of said City under
the State Constitution.”
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LEAGUE OF CALIFORNIA CITIES: CHARTER CITY TOOL KIT 9
B. Interpretation of a Charter: Limitation of Authority not a Grant of Authority As noted in Chapter 1, California’s charter home rule provision is contained in the California Constitution, article XI, section 5. This section reserves to a charter city the right to adopt and enforce laws (i.e. ordinances) regarding municipal affairs, subject only to the conflicting provisions in the state or federal constitutions, federal laws, or state statutes in matters of statewide concern.7
There is a common misconception that the authority of a charter city is derived from its charter.

The home rule authority of a charter city flows directly from the California Constitution; the charter itself defines and limits how the city will use that authority. “The charter operates not as a grant of power, but as an instrument of limitation and restriction on the exercise of power over all municipal affairs which the city is assumed to possess; and the enumeration of powers does not constitute an exclusion or limitation.”8
In plain English this means that a charter city has authority over all municipal affairs and does not need to enumerate those powers in the charter.

Rather, the charter describes how those powers are carried out and may limit how those powers are exercised. A charter often addresses some but not all municipal affairs. For example, a charter might provide for a strong mayor form of government, but a council-adopted ordinance might provide for elections by district. As the California Supreme Court said: “accordingly, the city is empowered to exercise full control over its municipal affairs unaffected by general [state] laws on the same subject matters and subject only to the limitations found in the Constitution and the City Charter.”10
A city charter is sometimes described as the city’s constitution. However, it is important to dig a little deeper into this comparison. A city charter is similar to the California Constitution and not to the federal Constitution. Unlike the U.S. Constitution, which operates as a grant of power to Congress, the California Constitution is a limitation or restriction on the power of the Legislature.11 Congress may not legislate in an area unless it finds authority in the federal Constitution. On the other hand, the California Legislature may legislate in any area unless it finds a restriction or limitation on its authority in the California Constitution. A city charter is comparable to the California Constitution, is governed by the same principles, and operates as a limitation or restriction on the inherent power of the city council of a charter city to legislate on municipal affairs.12
Limitations and restrictions in a city charter are interpreted in favor of the city council’s exercise of power over municipal affairs and against any limitation or restriction that is not expressly stated in the charter.13 This means that a city council or its voters looking to limit a city council’s authority to act should draft the restrictions as explicitly as possible. The courts will not imply a restriction on the exercise of a charter city’s power over municipal affairs.14 The restrictions placed by the voters in a charter are an expression of the singularly local character of the community. Here are a few examples:
ƒ The Porterville City Charter limits the purposes for which special taxes may be imposed to the support and maintenance of the fire department, acquisition of public improvements, public libraries, parks, and music and entertainment.15 ƒ The voters of the City of Napa amended the city charter to prohibit a city-owned park from being used or developed for any purpose other than passive recreation and open space.16 Example: The Napa City Charter
includes a typical city charter
provision to explicitly implement
this constitutional authority. It
provides: The City of Napa shall
have and may exercise all powers
which now are or may hereafter
be conferred upon municipalities
by the Constitution and laws of
the State of California, and which
it would be lawful for this Charter
specifically to enumerate, as
fully and completely as though
such powers were specifically
enumerated herein, and no
enumeration of particular powers
in and by this Charter shall be
held to be exclusive.9
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10 LEAGUE OF CALIFORNIA CITIES: CHARTER CITY TOOL KIT
CHAPTER 2: A CHARTER CITY’S ADDITIONAL HOME RULE AUTHORITY ƒ The voters of the City of Newport Beach prohibited the city council from authorizing any red light camera or other automated traffic enforcement system.17 ƒ The Santa Barbara City Charter prohibits the city council from approving development that exceeds established building height limits in various parts of the city.18 ƒ The Watsonville City Charter includes a limitation on the total dollar amount of bonded debt that may be issued.19
In addition to being contrary to the legal underpinnings of a charter, using a charter as a grant of authority will not necessarily prevail over a limitation otherwise imposed on the authority of the city council. For example, the provision of the Los Angeles City Charter that vested authority to manage the fiscal affairs of the city in the city council did not trump the binding arbitration provision of an MOU agreed to by the city council.20
C. Municipal Affairs
The California Constitution gives charter cities the power to “make and enforce all ordinances and regulations in respect to municipal affairs;” however, it does not define the term municipal affair.

And although the Constitution enumerates four (sometimes called core) municipal affairs, what is a municipal affair is not limited to this enumeration and these four subjects are not unassailable municipal affairs.21 The phrase municipal affairs has defeated efforts at a defining formulation since it was added to the Constitution in 1896. The courts continue to discern whether a particular subject is a municipal affair, over which a charter city has authority, or is a matter of statewide concern, over which the Legislature has authority, on a case-by-case basis. Although the courts give the Legislature’s intentions in this regard great weight, the Legislature is neither empowered to determine what a municipal affair is nor to transform a municipal affair into one of statewide concern.22
Until 1991, the approach employed by courts in defining a municipal affair was to categorize certain subjects as municipal affairs. More recently, however, the courts have treated what is a municipal affair as fluid and changing over time as local issues may become statewide concerns, and vice versa. The constitutional concept of municipal affairs is not a fixed quantity, but one that changes with the changing conditions upon which it is to operate. The California Supreme Court has said the task of determining whether a given activity is a municipal affair or one of statewide concern is an ad hoc inquiry in light of the facts and circumstances surrounding each case and entails a four-step analysis to determine what is a municipal affair, which can be summarized as follows:23 Step One: Does an actual conflict exist between the local law and the state law? (If the answer is no, there is no need to go further and determine if the matter is municipal affair or statewide concern.)
Step Two: If yes, does the local law implicate a municipal affair? Step Three: If yes, does the state law involve extramural concerns that require paramount state control?
Step Four: If yes, is the state statute reasonably related and narrowly tailored to the resolution of the statewide concern?
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LEAGUE OF CALIFORNIA CITIES: CHARTER CITY TOOL KIT 11
If the answer to all of the questions is yes, then it is a matter of statewide concern and the city is preempted from adopting and enforcing an ordinance or charter provision that conflicts with the state law. If the answer to either of the last two questions is no, then the state law does not address an area of statewide concern and the local law addresses a municipal affair that is beyond reach of the Legislature and state statutes.

1. Municipal Affairs Listed in the Constitution
California Constitution, article XI, section 5, subdivision (b), approved at the special election in June 1970, also provides a non-exclusive list of four municipal affairs: (1) regulation and government of a city police force; (2) sub-government in all or part of the city; (3) conduct of city elections; and (4) election, appointment, removal and compensation of municipal officers and employees whose compensation is paid by the city. Each of these areas is subject to the four-step test explained above.
a. Regulation and government of a city police force
In a general law city, the police department is under the control of the chief of police.24 In contrast, under article XI, section 5, subdivision (b), a charter city may, for example, establish a police commission that is authorized to review and make recommendations to the public, city council and city manager concerning policies, practices and procedures in relation to the city’s police department.25 The San Jose City Charter establishes the office of independent police auditor to review police department investigations of complaints against police officers, to make recommendations with regard to police department policies and procedures, and to conduct public outreach to assist the community with the process and procedures for investigation of complaints against police officers. The San Jose City Charter prohibits the city council and mayor from dictating the appointment or removal of any employee appointed by the independent police auditor.26 The San Bernardino City Charter places the police and fire departments under the supervision of the mayor.27 Be aware that the specific reference to this municipal affair in the Constitution has not prevented the courts from determining that the Police Officers Procedural Bill of Rights applies to a charter city because the state law interfered “only minimally on a charter city’s authority to regulate and govern its police force.”28
b. Sub-government
The Government Code prescribes the form of a general law city’s government. The government of a general law city is vested in a city council of at least five members, a city clerk, a city treasurer, a police chief, a fire chief, and any subordinate officers or employees provided by law.29 A general law city’s registered voters may adopt an ordinance that provides for a different number of councilmembers.30 Absent formal action by the city council or the voters of a general law city, the council retains authority over the management of the city.

However, the city council or voters may pass an ordinance establishing a city manager form of government.31 In a charter city, the charter can provide for any number of council members, a directly elected mayor, term limits, and any form of government that a general law city may have.32 In addition to these options, a charter city can opt for a strong mayor form of government, which typically gives the mayor the unilateral authority to hire and fire the city manager and department heads and present a budget to the city council.

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12 LEAGUE OF CALIFORNIA CITIES: CHARTER CITY TOOL KIT
CHAPTER 2: A CHARTER CITY’S ADDITIONAL HOME RULE AUTHORITY There are many examples of sub-government structures in charter cities. Here are a few:
ƒ Santa Rosa: Section 10 of the city charter requires the city council to establish a district commission encompassing the entire city. The commission is composed of representatives of seven to 14 districts whose boundaries are established by the council.

The representatives of each district advise the council regarding various city matters including public safety issues, capital improvement budget priorities for their district, and neighborhood planning matters.
ƒ Chula Vista: Section 609 of the city charter establishes a civil service commission. ƒ Santa Clara: Section 1012 of the city charter establishes a board of library trustees. ƒ Riverside: Section 810 of the city charter establishes a community police review commission.

For a general law city, the Government Code states that a majority of the city council constitutes a quorum for the transaction of business.33 Additionally, resolutions, orders for the payment of money, and all ordinances require a recorded majority vote of the total membership of the city council.34 Certain actions require a supermajority vote.

In contrast, charter cities may establish their own voting and quorum requirements. For example, the Richmond City Charter requires five members to vote affirmatively to authorize expenditures of $1,000 or more.35 However, there is certain legislation requiring supermajority votes that applies to charter cities as well as to general law cities. For example, a charter city may not commence an eminent domain proceeding until its city council has adopted a resolution of necessity by a vote of two-thirds of all the members of the city council, unless a greater vote is required by statute, charter, or ordinance.36 General law cities may establish their own rules regarding the procedures for adopting, amending, or repealing resolutions,37 other than the rule that resolutions require a recorded majority vote of the total membership of the city council.38 The same is not true for adopting ordinances, which procedures are governed by the Government Code for general law cities.

Ordinances require two readings: one introduction and, at least five days thereafter, a second reading and vote.39 Ordinances may be introduced at any type of meeting but must be passed only at a regular meeting, not at a special meeting.40 There is an exception to that rule for urgency ordinances, which may be passed immediately upon introduction and either at a regular or special meeting with a four-fifths vote of the city council and an urgency finding.41 Ordinances must be signed by the mayor and attested by the city clerk.42 The city clerk must cause publication of each ordinance, within 15 days after passage, in a newspaper of general circulation published and circulated in the city.43 Ordinances take effect 30 days after their final passage, with certain listed exceptions.44
Like general law cities, charter cities may establish their own procedures for adopting, amending or repealing resolutions.45 Unlike general law cities, however, charter cities also have the authority to opt out of general laws for enacting local ordinances, as the mode and manner of passing ordinances have been deemed a municipal affair.46 The Seal Beach City Charter recognizes that in periods of emergency resulting from a disaster, the city council needs the power to provide for the continuity of city operations, etc. Section 107 of the Agenda Item 12 CC Agenda 01-07-20 Attachment 1 Agenda Item 12 Page No. 200 CC Agenda 01-07-20

LEAGUE OF CALIFORNIA CITIES: CHARTER CITY TOOL KIT 13
charter requires the city council to conform to the provisions of the charter except so as to allow the council to make purchases and enter into contracts without calling for bids, to the extent the emergency so requires.
c. Elections
Conduct of city elections gives charter cities the authority to regulate the manner of electing municipal officers. It provides plenary authority over the manner in which, the method by which, the times at which, and the terms for which the several municipal officers shall be elected. Of course, this does not absolve a charter city from complying with the equal protection clauses and other parts of the state and federal Constitutions. For example, a charter city may not ban write-in voting47 or allow incumbents on a ballot to state occupations but disallow challengers from doing the same.48 Further, courts have held that at least some portions of the California Voting Rights Act apply to charter cities.49 (See discussion in Chapter 4.)
A charter city, so long as it does not violate the state and federal constitutions as described above, is free to establish election rules if those rules do not actually conflict with general law. For example, the San Jose City Charter makes the city council the judge of the election and qualifications of its members with the power to subpoena witnesses, require production of evidence, etc.50 Likewise, a number of charter cities provide for a redistricting commission to establish city council districts in accordance with the census.51 If there is a conflict with general law, the charter city provisions prevail unless the Legislature has found a need for paramount state control over the issue and the general law is both reasonably related to the area of statewide concern and narrowly tailored to resolve the problem being addressed as a statewide concern.52
In the context of local elections, the balancing of those issues has led courts to uphold many charter city rules for local elections.
d. Officers and Employees
California Constitution, article XI, section 5, subdivision (b) grants extensive authority over municipal officers and employees as follows:

It shall be competent in all city charters to provide … the manner in which, the method by which, the times at which and the terms for which the several municipal officers and employees whose compensation is paid by the city shall be elected or appointed, and for their removal, and for their compensation, and for the number of deputies, clerks and other employees each shall have, and for the compensation, method of appointment, qualifications, tenure of office and removal of such deputies, clerks and other employees.

Example: Courts have upheld the following charter provisions:
• A comprehensive charter elections program that did not require the mailing of candidate qualification statements where a statewide Elections Code rule purported to require a city clerk to mail such statements.53
• A comprehensive local campaign charter provision that limited campaign expenditures for local office as a condition of receiving public funds for such campaigning where there was a statewide prohibition against public funding of election campaigns.54 • A charter city placing a general tax before the voters by simple majority vote of the city council as opposed to the two-thirds vote requirement for a general law city council.55
Likewise, the California Attorney General has opined that a charter city may provide for a partisan municipal election (where the candidates are identified by their political party affiliation) whereas a general law city may not.56
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14 LEAGUE OF CALIFORNIA CITIES: CHARTER CITY TOOL KIT
CHAPTER 2: A CHARTER CITY’S ADDITIONAL HOME RULE AUTHORITY The California Constitution does not mandate what city offices and subordinate offices a charter city has to have, but it recognizes the right of a charter city to make this choice. That fact does not relieve charter cities from complying with preemptive state laws on matters of statewide concern. For example, the courts have recognized that, in a charter city, the charter controls the organization of the police department.57 As the California Attorney General has opined, there is no constitutional or statutory requirement that a charter city have a chief of police.58 Further, where a charter city does in fact establish the office of chief of police, the chief, like all subordinate officers, is subject to the Public Safety Officers Procedural Bill of Rights.59
A charter city is likewise able to establish rules and conditions for service by its municipal officials.61 General law does cover how to fill a vacancy in public office and applies to charter cities in only limited respects.62 A charter city has plenary authority to legislate in this area as well.63 In addition, a charter may establish different rules than mandated by general law for dealing with officials holding incompatible offices,64 for conflicts of interest,65 and for incompatible activities, which may result in a forfeiture of public office.66 Further, several charter cities have charter provisions that limit city council members from being paid city employees during their term of office or for some period after leaving office.67 Several city charters include provisions for impartial arbitration for fire department employees.68 Other charters create offices such as city auditor69 or public information officer.70 The Santa Cruz City Charter includes a section on the process the city council must follow for layoffs.71

2. More About Municipal Affairs
In addition to these four core municipal affairs listed in California Constitution, article XI, section 5, subdivision (b), from time to time, courts have determined that certain other areas are municipal affairs. These provide examples of how courts have evaluated the distinction between a municipal affair and a statewide concern, based on the four-step analysis summarized above. Occasionally, the face of a state statute identifies a conflict between the local law and the state law (step one of the four-step analysis) when the statute specifically excludes charter cities from its scope. a. Public Contracting
The Public Contract Code requires that a general law city and any charter city that has not explicitly exempted itself from the Public Contract Code (see below) publicly bid any project that exceeds $5,000.72 There are requirements for public notice, and then the city must award the contract for that project to the lowest responsible bidder.73 Alternatively, a city may adopt the Uniform Public Construction Cost Accounting Act (UPCCAA).74 Under those statutes, there are three tiers of contracts: (1) the least expensive public projects may be performed by the employees of a public agency by force account, negotiated contract, or purchase order; (2) more expensive public projects may be awarded to a contractor by following an expedited bid procedure; and (3) the most expensive public projects must be awarded to a contractor after following more timely and onerous bidding procedures.75 Either way, a city operating under the standard public bidding statutes or the UPCCAA has to publicly bid at least some of its public works project agreements, and must follow strict procedures for all of its public works contracts.

Example: An example of a
municipal officer created by
charter that is not identified in the
general law can be found in the
Stockton City Charter. Stockton
has created the position of city
auditor, who is responsible for
the annual post audits of fiscal
transactions, performance audits,
special audits and investigations,
and is given other duties and
specified powers.60 In addition,
the Folsom City Charter and
the Shafter City Charter give
the authority to appoint the city
attorney to the city manager and
not the city council.

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LEAGUE OF CALIFORNIA CITIES: CHARTER CITY TOOL KIT 15
Charter cities, however, may opt out of the Public Contract Code’s public bidding requirements.76 To opt out, the city’s charter or an ordinance must expressly exempt the city from the Public Contract Code or include a provision that conflicts with a provision in the Public Contract Code.77 This allows charter cities to have different noticing requirements, use different claims resolution procedures,78 and generally structure their public works bidding process as they see fit, if they even require public bidding. This can be time-saving and costcutting. For examples of charter cities that have opted out of the Public Contract Code’s public bidding requirements, see section 608 of the Placentia City Charter and section 1217 of the San Jose City Charter.

Additionally, while contracts for professional services such as private architectural, landscape architectural, engineering, environmental, land surveying, or construction project management firms do not need to be competitively bid, general law cities must award such contracts “on the basis of demonstrated competence and on the professional qualifications necessary for the satisfactory performance of the services required.”79 There is no clear court opinion on whether charter cities may opt out of this statute, but a San Diego City Attorney’s opinion suggests that charter cities may establish their own rules for awarding professional services contracts that are locally funded and local in nature.80 b. Prevailing Wage
Prevailing wage law requires contractors and subcontractors on public works projects over $1,000 to pay their workers’ wages as set by the Director of Industrial Relations.81 In this context, the term public works refers to construction, alteration, demolition, installation, or repair work done under contract and paid for in whole or in part out of public funds, with particular exceptions.82 General law cities must require that their contractors and subcontractors pay prevailing wages on public works projects.

It is unclear how much higher prevailing wages are from standard industry wages. In a case between the State Building and Construction Trades Council of California and the City of Vista, city staff estimated up to a 20 percent increase in the cost of public works projects due to the payment of prevailing wages.83 The California Institute for County Government has conducted research and determined that “prevailing wages are substantially higher than market wages.

In fact, California’s published prevailing wage rates are about one-third to one-half higher than comparable market wages.”84 The executive summary of that study explains:

We found that the prevailing wage requirements increased overall project costs by about 11 percent, even while controlling for other factors known to influence costs such as regional variations in construction costs and characteristics of the structures themselves.

We further found that the impact from these expanded prevailing wage requirements varies across the state, with some areas expected to experience cost increases of as little as six percent while others will likely experience increases of more than 15 percent.

Thus, requiring prevailing wages may affect the cost of a public works project significantly.

Additionally, prevailing wage law includes many other regulations, such as the requirement that contractors on public works projects hire apprentices from state-approved apprenticeship programs.

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16 LEAGUE OF CALIFORNIA CITIES: CHARTER CITY TOOL KIT
CHAPTER 2: A CHARTER CITY’S ADDITIONAL HOME RULE AUTHORITY The California Supreme Court has determined that the wage levels of contract workers constructing locally funded public works were a municipal affair rather than a matter of statewide concern.85 Thus, charter cities are not subject to the state’s prevailing wage law for locally funded public works projects and have the discretion to require or not require the payment of prevailing wages for such projects. Prevailing wages may still be required where such payment is compelled by the terms of a state or a federal grant or the contract does not involve a municipal affair. Examples of contracts that do not involve municipal affairs include regional projects such as a regional municipal utility project located outside of the jurisdiction, an animal services facility that serves multiple cities, or a regional sewer plant. Where cities have formed a joint powers authority (JPA), it is unclear whether the JPA must pay prevailing wages on a JPA project, particularly where there is at least one charter city and one general law city. In such cases, however, a JPA project is likely to be a regional project, and thus subject to payment of prevailing wages on that ground.

Although charter cities may opt not to require the payment of prevailing wages, Senate Bill 7 (Stats. 2013, ch. 794 adding section 1782 to the Labor Code) imposes consequences for doing so. For further discussion on prevailing wages and Senate Bill 7, see Chapter 5. c. Fiscal Affairs

1. Taxes
Until the early 1990s, charter cities were able to rely on a broad power of taxation as a municipal affair.86 For example, courts have upheld charter cities’ license taxes87 and real estate transfer taxes (also referred to as documentary transfer taxes.)88 But then three things changed. First, in 1982 (in the wake of Proposition 13), the Legislature passed a statute allowing a general law city to levy any tax a charter city may levy.89 Thus, as a general rule, charter cities do not have any distinct taxation authority that is unavailable to general law cities. However, courts have upheld the authority of charter cities to establish and impose real estate transfer taxes that exceed the limits imposed on general law cities under Government Code section 53725 and Revenue and Tax Code sections 11911 et seq., as long as other constitutional requirements for voter approval are satisfied.90 Second, the California Supreme Court recognized that sometimes aspects of local taxation have an effect outside the city’s jurisdiction that implicates a matter of statewide concern.91 Finally, charter cities must comply with Propositions 13, 26 and 218, which require certain procedures, including voter approval on taxes.92

2. Investments
State law allows general law cities having money in their treasuries not required for immediate needs to invest in particular types of investments.93 Charter cities may set up their own investment policies and programs, and they are only constrained by basic constitutional limitations.

3. Appropriations
Local appropriations are another area that has not been tested as to whether it applies to charter cities.

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LEAGUE OF CALIFORNIA CITIES: CHARTER CITY TOOL KIT 17
An appropriation is an authorization to expend funds. The appropriations of general law and charter cities are limited by a formula found in the Constitution that adjusts annual appropriations by cost of living and change in population (Gann limit).94 The formula involves a base year with allowable adjustments based on increases in population and inflation. There are certain items that are exempt from the Gann limit, such as indebtedness and treatment of certain income as proceeds of taxes. The Gann limit applies to charter cities.95
Cities set apart a named sum of money in the treasury and make it available for the payment of particular claims or demands through an appropriation. A city may accomplish this by adopting a budget or passing an appropriations ordinance or resolution.96 General law cities are then authorized to pay funds through the warrant process.97 The custodian of funds issues a warrant, which is an order authorizing the bank or other depository of city funds to pay a particular sum of money. If funds are available for the payment of an approved claim, the warrant becomes a check directing the bank or depository of city funds to pay the funds to the payee. When funds are unavailable, the warrant becomes an interest-bearing municipal obligation.

4. Expenditures
There are three main limitations on expenditures of general law cities.

First, a general law city may not make a gift of public funds.98 Any expenditure with a public purpose, however, is not a gift of public funds.

The prohibition on gifts of public funds provision does not apply to charter cities.99 Second, a city may not pay extra compensation to a public officer, public employee, or contractor after service has been rendered or a contract has been entered into and performed to any degree, or to authorize the payment of a claim against the city under an illegally made agreement.100 This provision applies to charter cities by virtue of California Constitution article XI, section 10.101 Finally, the constitutional debt limitation states that no city may incur any indebtedness or liability in any manner or for any purpose exceeding in any year the income and revenue provided for such year, without the assent of two-thirds of the voters of the public entity voting at an election to be held for that purpose.102 This limitation includes several exceptions such as the long-term lease exception.103 This limit applies to charter cities.104
d. Land Use and Planning
Government Code section 65700, which relates to local planning, generally exempts charter cities from its coverage, with some exceptions.110 Government Code section 65803 includes similar provisions.

The gift of public funds clause of the California
Constitution states: “The Legislature shall have
no power . . . to make any gift or authorize the
making of any gift, of any public money or thing
of value to any individual, municipal or other
corporation whatever.”105 The general rule is
that a contribution from one public agency to
another entity for a purely local purpose is not
allowed unless the contribution serves the public
purpose of the donor agency,106 regardless of
the benefit to the donee agency or incidental
benefits to private persons.107 A city’s discretion
to determine what constitutes a public purpose
generally is not disturbed by the courts if that
determination has a reasonable basis.108
The constitutional prohibition against a gift of
public funds is a restriction on the powers of
the Legislature. The powers of charter cities,
however, are not derived from the Legislature
but rather from their respective charters,
which are directly provided for in the California
Constitution. Thus, the constitutional prohibition
against making gifts of public funds does not
apply to a charter city.109
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18 LEAGUE OF CALIFORNIA CITIES: CHARTER CITY TOOL KIT
CHAPTER 2: A CHARTER CITY’S ADDITIONAL HOME RULE AUTHORITY Unless the legislation states that it applies to charter cities in this area it likely does not. For example0 Government Code section 65860 requires a general law city to conform its zoning ordinances to its general plan. The section states that it shall apply to a charter city with a population of 2 million or more, which includes Los Angeles only. For charter cities other than Los Angeles, the mandatory elements of a general plan must be internally consistent,111 there is no similar requirement that there be consistency between the general plan and zoning.112 However, the California Environmental Quality Act may require a charter city to identify inconsistencies between a project, its zoning, and the charter city’s general plan.

It is therefore incumbent upon charter cities to carefully review state legislation regarding zoning and planning to determine what sections purportedly apply to charter cities and which do not.

3. Matters of Statewide Concern
As explained earlier, there are certain areas of California law that apply to charter cities if a court determines that the area is a matter of statewide concern. In these areas state legislation preempts local legislation. Below are some areas that courts have held to be matters of statewide concern. For further discussion, see Chapter 5.
a. School systems
Education and the operation of public schools have repeatedly been held by courts to be a matter of statewide concern rather than a municipal affair.113 As one court has pointed out: “The Legislature’s power over the public school system has been variously described as exclusive, plenary, absolute, entire, and comprehensive, subject only to constitutional constraints.”114 Thus, charter provisions, ordinances and regulations regarding schools are preempted.115 However, education may be made a municipal affair when the city acts “in promotion and not in derogation of the legislative school plans and purposes of the state.”116 Thus, although a general law city is prohibited by the gifts of public funds clause of the Constitution, a charter city, which is not subject to this constitutional prohibition, may choose to render financial assistance to education.117
b. Licensing of members of a trade or profession
If the state has provided a broad and comprehensive plan for examining and licensing members of a specific trade or profession, such licensing is a matter of statewide concern.

Thus, charter cities and general law cities may not impose additional requirements on these trades or professions. The rationale is that the statewide scheme is intended not just to be prohibitory, but also permissive, authorizing licensed individuals to engage in their occupations anywhere in the State, and local requirements conflict with that intent.118 Courts have applied this general rule regarding the licensing of electrical contractors,119 painting contractors,120 plumbing contractors,121 attorneys,122 psychiatrists,123 civil engineers and land surveyors,124 and fire insurance adjusters.125
Examples: Some examples of
Government Code provisions
relating to planning and zoning
which apply to charter cities are:
scope of general plan (§ 65301);
the Housing Accountability Act
(§ 65589.5); conduct of zoning
hearings (§ 65804); senior citizen
housing (§ 65852.1); requirements
for roof overhang manufactured
home (§ 65852.5); mobile home
park as permitted land use
(§ 65852.7); interim ordinance
procedures (§ 65860); variances
(§ 65863.5); mobile home park
conversion (§ 65863.5); wind
energy systems (§ 65909.5);
and processing fees for permits
etc. (§ 65909.5). This list is
not exhaustive.

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LEAGUE OF CALIFORNIA CITIES: CHARTER CITY TOOL KIT 19
c. Regulation of Traffic and Vehicles
Although courts have recognized that the regulation of traffic upon public streets is of special interest to municipalities, they have refused to treat such regulation as a municipal affair.126 The state has claimed plenary power over the entire field of traffic control in California Vehicle Code Section 21. Thus, unless expressly provided by the Legislature, a city has no authority over vehicular traffic control.127 Ordinances inconsistent with state regulation of vehicles and traffic are invalid.128 Therefore, the authority of a charter city to regulate traffic on public streets is equivalent to the authority of a general law city, and subject to state law. d. Government Claims Act
The Government Claims Act establishes procedures for any person who seeks money or damages from a city, and it establishes substantive requirements to establish liability against a city.129 “It is undisputed that the matter of the liability of and payment by a city for its tort is not a municipal affair.”130 Even if damage or injury results from a charter city taking action that is clearly a municipal affair (such as the faulty maintenance of a city building), the charter city’s liability for that action is a matter of statewide concern.131 Therefore, a charter city may not establish its own procedural or substantive requirements for filing claims against the city that are in conflict with the Government Claims Act.
e. The Brown Act
The Ralph M. Brown Act, more commonly known as the Brown Act, is California’s sunshine law for local government.132 In essence, the Brown Act requires local government business to be conducted at open and public meetings, except in certain limited situations, and includes agenda requirements. The Brown Act declares that it applies to a “city, whether general law or chartered.”133 Additionally, a court has held that the Brown Act does not impermissibly infringe on a charter city’s control over its municipal affairs and “addresses a genuine and pure matter of statewide concern.”134
f. The Meyers-Milias-Brown Act
The Meyers-Milias-Brown Act (MMBA) is intended “to promote full communication between public employers and their employees by providing a reasonable method of resolving disputes regarding wages, hours, and other terms and conditions of employment between public employers and public employee organizations.”135 The MMBA requires a city council or its designated representative to meet and confer in good faith regarding wages, hours, and other terms and conditions of employment with representatives of such recognized employee organizations.136 If agreement is reached by the two parties, the meet and confer process concludes in a jointly prepared written memorandum of understanding, which must be approved by the city council to become binding.137
The California Supreme Court has held that “the procedures set forth in the MMBA are a matter of statewide concern, and are preemptive of contradictory local labor-management procedures.”138 However, the California Supreme Court has clarified that:
[T]here is a clear distinction between the substance of a public employee labor issue and the procedure by which it is resolved. Thus there is no question that ‘salaries of local employees of a charter city constitute municipal affairs and are not subject to general laws.’ [Citation.] Nevertheless, the process by which salaries are fixed is obviously a matter of statewide concern and none could … argue that a charter city need not meet and confer concerning its salary structure.139 Agenda Item 12 CC Agenda 01-07-20 Attachment 1 Agenda Item 12 Page No. 207 CC Agenda 01-07-20

20 LEAGUE OF CALIFORNIA CITIES: CHARTER CITY TOOL KIT
CHAPTER 2: A CHARTER CITY’S ADDITIONAL HOME RULE AUTHORITY Thus, like general law cities, charter cities must meet and confer in good faith with their public employee labor unions and attempt to reach mutual agreements. For further discussion on the MMBA and charter cities, see Chapter 5.
g. CEQA
The California Environmental Quality Act (CEQA) establishes detailed procedures by which a city is required to analyze the potential impacts of its actions upon the environment.140 The Legislature has stated that CEQA is a matter of statewide concern, and that governmental agencies at all levels, which includes charter cities, are required to comply with its provisions.141
h. Eminent Domain
The power of eminent domain is a matter of statewide concern, not a municipal affair — it must be exercised in accordance with state law.142 Cities have no inherent power of eminent domain and can exercise it, if at all, only when expressly authorized by law.143 Therefore, a charter city must comply with the California Constitution, the Eminent Domain Law and the relocation assistance statutes.144
i. Annexations
The Legislature establishes policies and procedures for setting territorial boundaries of cities, including the annexation of territory to a city, which are generally implemented through local agency formation commissions.145 The annexation of territory by a city is a statewide concern.146 Therefore, a charter city may not adopt provisions of a local ordinance or charter “pertaining to annexation which are contrary to the general laws of statewide application.”147 j. Public Records Act
The California Public Records Act (CPRA) codifies the procedures by which any person may gain access to a city’s public records, including particular definitions for what constitutes a public record, and exemptions from access for specified types of records.148 The CPRA expressly applies to all cities, “whether general law or chartered.”149 In 2004, the California Constitution was amended to broadly construe existing legislation that furthers the people’s right of access to public information (such as the CPRA), and to narrowly construe any limits to access, and it specifically provides that: “The people have the right of access to information concerning the conduct of the people’s business, and therefore … the writings of public officials and agencies shall be open to public scrutiny.” In 2014, the California Constitution was amended again to require each local agency to comply with the CPRA and the Brown Act as they might be amended by the Legislature in the future. 150 Agenda Item 12 CC Agenda 01-07-20 Attachment 1 Agenda Item 12 Page No. 208 CC Agenda 01-07-20

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ENDNOTES
1 Royal Charter, Wikipedia <http://en.wikipedia.org/wiki/Royal_charter> [as of April 20, 2016]. 2 Detweiler, Home Rule: An Historical Perspective (January 1997) Western City, page 15. 3 A freeholders charter is a charter that originates with the municipality’s electors as compared to a legislative charter, which is created by statute. 2A McQuillin, The Law of Municipal Corporations (3d ed. 2006) § 9.7, p. 230.
4 Detwiler, supra note 2, at p. 15.
5 Charter, Merriam Webster’s Online Dictionary, <http://www.merriam-webster.com/dictionary/ charter> [as of April 20, 2016].
6 National Civic League, Model City Charter (8th ed. 2011), p. xii. 7 Harman v. City and County of San Francisco (1972) 7 Cal.3d 150, 161. 8 Grass Valley v. Walkinshaw (1949) 34 Cal.2d 595, 598-599. 9 Napa City Charter, § 4.
10 Rivera v. City of Fresno (1971) 6 Cal.3d 132, 135.
11 Methodist Hospital of Sacramento v. Saylor (1971) 5 Cal.3d 685, 691. 12 Adams v. Wolff (1948) 84 Cal.App.2d 435, 441.
13 Domar Electric Inc. v. City of Los Angeles (1994) 9 Cal.4th 161. 14 City of Glendale v. Trondsen (1957) 48 Cal.2d 93, 99. 15 Porterville City Charter, § 44.
16 Napa City Charter, § 185.
17 Newport Beach City Charter, § 426.
18 Santa Barbara City Charter, § 1506.
19 Watsonville City Charter § 1116.
20 City of Los Angeles v. Superior Court (2013) 56 Cal.4th 1086, 1104. 21 The phrase “municipal affair” was once referred to by a justice of the California Supreme Court as those “wild words.” California Fed. Savings & Loan Assn. v. City of Los Angeles (1991) 54 Cal.3d 1, 7. 22 State Building and Construction Trades Council v. City of Vista (2012) 54 Cal.4th 547, 558. 23 California Fed. Savings & Loan Assn. v. City of Los Angeles, supra, 54 Cal.3d at p. 16. 24 Gov. Code, § 38630.
25 Brown v. City of Berkeley (1976) 57 Cal.App.3d 223.
26 San Jose City Charter, §§ 809, 809.1.
27 San Bernardino City Charter, § 180.
28 Baggett v. Gates (1982) 32 Cal.3d 128.
29 Gov. Code, § 36501.
30 Gov. Code, §§ 36501, 34871.
31 Gov. Code, § 34851.
32 Cal. Const., art. XI, § 5.
33 Gov. Code, § 36810.
34 Gov. Code, § 36936.
35 Richmond City Charter, art. III, § 7.
36 Code of Civ. Proc., §§ 1245.220, 1245.240; City and County of San Francisco v. Ross (1955) 44 Cal.2d 52, 55.

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CHAPTER 2: A CHARTER CITY’S ADDITIONAL HOME RULE AUTHORITY 37 See, e.g., Pasadena v. Paine (1954) 126 Cal.App.2d 93, 96. 38 Gov. Code, § 36936. Orders for the payment of money also require a recorded majority vote of the membership of the city council.
39 Gov. Code, § 36934.
40 Ibid.
41 Ibid.
42 Gov. Code, § 36932.
43 Gov. Code, § 36933.
44 Gov. Code, § 36937.
45 Brougher v. Board of Public Works (1928) 205 Cal. 426, 438-39; Sacramento Paving Co. v. Anderson (1905) 1 Cal.App. 672, 673.
46 Brougher v. Board of Public Works, supra, 205 Cal. at 438; Morton v. Broderick (1897) 118 Cal. 474, 486-

87. 47 Canaan v. Abdelnour (1985) 40 Cal.3d 703, 710.
48 Rees v. Layton (1970) 6 Cal.App.3d 815, 822-823.
49 Jauregui v. City of Palmdale (2014) 226 Cal.App.4th 781. 50 San Jose City Charter, § 405.
51 See, e.g., Santa Barbara City Charter, § 515; Compton City Charter, § 505; Newport Beach City Charter, § 1005; San Jose City Charter, § 403; Watsonville City Charter, § 413; San Francisco City Charter, § 13.110; San Diego City Charter, § 5.1.
52 Johnson v. Bradley (1992) 4 Cal.4th 389, 404.
53 Mackey v. Thiel (1968) 262 Cal.App.2d 362 (under former art. XI, § 8 1/2). 54 Johnson v. Bradley, supra, 4 Cal.4th at pp. 410-411. 55 Trader Sports v. City of San Leandro (2001) 93 Cal.App.4th 37. 56 56 Ops.Cal.Atty.Gen 289 (1973).
57 Brown v. City of Berkeley (1976) 57 Cal. App. 3d 223. 58 63 Ops.Cal.Atty.Gen. 829 (1980).
59 Ibid.
60 Stockton City Charter, art. XV, § 1501.
61 Cal. Const., art. XI, § 5, subd. (b).
62 Gov. Code, § 1770, subd. (m)(1) (provision applying to charter cities). 63 Ector v. City of Torrance (1973) 10 Cal. 3d 129, 132-133. This decision was subsequently overruled by a 1976 amendment to California Constitution article XI, section 10, subdivision (b) prohibiting any city or charter city from requiring “that its employees be residents of such city … except that such employees may be required to reside within a reasonable and specific distance of their place of employment or other designated location.”
64 73 Ops.Cal.Atty.Gen. 357, 361 (1990).
65 See also Gov. Code § 87300 et seq. (requiring the adoption and updating of local conflict of interest codes).
66 81 Ops.Cal.Atty.Gen. 207 (1998).
67 See Sacramento City Charter, art. III, § 35; San Jose City Charter, § 406; Santa Rosa City Charter, § 5.

General law cities are subject to the provisions of Government Code section 53227 et seq. 68 Salinas City Charter, § 120; Santa Rosa City Charter, § 56; Watsonville City Charter, § 1007; Redwood City City Charter, § 96; Hayward City Charter, § 809.

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69 San Jose City Charter, § 805.
70 San Jose City Charter, § 808.
71 Santa Cruz City Charter, § 1112.
72 Pub. Contract Code, § 20162.
73 Ibid.
74 Pub. Contract Code, § 22030.
75 Pub. Contract Code, § 22032.
76 Pub. Contract Code, § 1100.7.
77 Ibid.
78 Pub. Contract Code, § 20104 et seq.
79 Gov. Code, § 4526.
80 See Memorandum of Law, “Selection for Professional Services; Application of California’s ‘Little Brooks Act,’” from John W. Witt, San Diego City Attorney, to Jack McGrory, City Manager (April 9, 1991) <http://docs.sandiego.gov/memooflaw/ML-91-28.pdf> [as of April 20, 2016]. 81 Lab. Code, § 1771.
82 Lab. Code, §§ 1720-1720.6.
83 See California Construction Compliance Group, Are Charter Cities Taking Advantage of StateMandated Construction Wage Rate (“Prevailing Wage”) Exemptions (3d Ed. Summer 2012). 84 California Institute for County Government, Impact of Prevailing Wage Rate Requirements on the Costs of Affordable Housing in California (June 9, 2004). 85 State Building and Construction Trades Council v. City of Vista (2012) 54 Cal.4th 547. 86 West Coast Advertising Co. v. City and County of San Francisco (1939) 14 Cal.2d 516, 524. 87 Id.; City of Los Angeles v. A.E.C. Los Angeles (1973) 33 Cal.App.3d 933, 939. 88 Fielder v. City of Los Angeles (1993) 14 Cal.App.4th 137, 145-46; Cohn v. City of Oakland (1990) 223 Cal.App.3d 261, 262.
89 Gov. Code, § 37100.5.
90 Fielder v. City of Los Angeles, supra, 14 Cal.App.4th at 145-46; Cohn v. City of Oakland (1990) 223 Cal.

App.3d 261; Gov. Code, § 53275; Rev. & Tax. Code, § 11911. 91 The local taxation of savings and loans is a matter of statewide concern. Cal. Fed. Savings & Loan Assn. v. City of Los Angeles (1991) 54 Cal.3d 1, 6.
92 Howard Jarvis Taxpayers Assn. v. City of San Diego (2004) 120 Cal.App.4th 374, 391. 93 Gov. Code, § 53601.
94 Cal. Const., art. XIIIB, § 1.
95 City of Sacramento v. State of California (1990) 50 Cal.3d 51. 96 See, e.g.,Watsonville City Charter, § 1103; Ventura City Charter, § 1216; Gilroy City Charter, § 1101. 97 Gov. Code, §§ 53910-53914.
98 Cal. Const., art. XVI, § 6.
99 Los Angeles Gas & Elec. Corp. v City of Los Angeles (1922) 188 Cal. 307, 317. 100 Cal. Const., art. IV, § 17.
101 Nelson v. City of Los Angeles (1971) 21 Cal.App.3d 916, 918. 102 Cal. Const., art. XVI, §18.
103 City of La Habra v. Pellerin (1963) 216 Cal.App.2d 99, 102.

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CHAPTER 2: A CHARTER CITY’S ADDITIONAL HOME RULE AUTHORITY 104 See Shelton v. Los Angeles (1929) 206 Cal. 544; Redondo Beach v. Taxpayers, Property Owners, Citizens & Electors (1960) 54 Cal.2d 126, 136.
105 The gift clause was originally adopted in 1879 as article IV, section 31 of the California Constitution.

From 1966 until 1974 it was located in article XIII, section 25. From 1974 to the present it has been located in article XVI, section 6. This explains why over the years the cases dealing with gifts of public funds refer to different sections of the Constitution.
106 City of Oakland v. Garrison (1924) 194 Cal. 298, 304; Golden Gate Bridge & Highway Dist. v. Luehring (1970) 4 Cal.App.3d 204, 208.
107 Board of Supervisors v. Dolan (1975) 45 Cal.App.3d 237, 243. 108 Ibid.
109 Los Angeles Gas & Electric Corp. v. City of Los Angeles, supra, 188 Cal. at 317; Sturgeon v. County of Los Angeles (2008) 167 Cal.App.4th 630, 637 n.5; Mullins v. Henderson (1946) 75 Cal.App.2d 117, 132. 110 Government Code sections 65590-65590.1 apply generally to the destruction of residential structures in the coastal zone.
111 Gov. Code § 65300.5.
112 City of Irvine v Irvine Citizens Against Overdevelopment (1994) 25 Cal.App.4th 868. 113 Cobb v. O’Connell (2005) 134 Cal.App.4th 91; California Teachers Assn. v. Hayes (1992) 5 Cal.App.4th 1513, 1524; Whisman v. San Francisco Unified Sch. Dist. (1978) 86 Cal.App.3d 782, 789; Esberg v.

Badaracco (1927) 202 Cal. 110, 115; Butterworth v. Boyd (1938) 12 Cal.2d 140, 152. 114 California Teachers Assn. v. Hayes (1992) 5 Cal.App.4th 1513, 1524. 115 Whisman v. San Francisco Sch. Dist., supra, 86 Cal.App.3d at 789. 116 Whitmore v. Brown (1929) 207 Cal. 473, 480; see also Madsen v. Oakland Unified School Dist. (1975) 45 Cal.App.3d 574, 579.
117 Madsen, supra, 45 Cal.App.3d at 579; Berkeley Unified Sch. Dist. v. City of Berkeley (1956) 141 Cal.

App.2d 841, 846-47.
118 Agnew v. City of Los Angeles (1952) 110 Cal.App.2d 612, 621; N. Cal. Psychiatric Soc’y v. City of Berkeley (1986) 178 Cal.App.3d 90, 108.
119 Horwith v. City of Fresno (1946) 74 Cal.App.2d 443, 447; Agnew v. City of Los Angeles (1952) 110 Cal.

App.2d 612, 623.
120 City and County of San Francisco v. Boss (1948) 83 Cal.App.2d 445. 121 Collins v. Priest (1949) 95 Cal.App.2d 179, 181-82. 122 Baron v. Los Angeles (1970) 2 Cal.3d 535, 540-41.
123 N. Cal. Psychiatric Soc’y v. City of Berkeley , supra, 178 Cal.App.3d at p. 108. 124 Verner, Hilby & Dunn v. City of Monte Sereno (1966) 245 Cal.App.2d 29, 35. 125 Robillwayne Corp. v. City of Los Angeles (1966) 241 Cal.App.2d 57, 62-63. 126 Ex parte Daniels (1920) 183 Cal. 636, 639.
127 Rumford v. City of Berkeley (1982) 31 Cal. 3d 545, 550. 128 Ex parte Daniels, supra, 183 Cal. at p. 641.
129 Gov. Code, § 810 et seq.
130 Dept. of Water & Power v. Inyo Chem. Co. (1940) 16 Cal.2d 744, 753. 131 Helbach v. City of Long Beach (1942) 50 Cal.App.2d 242, 246. 132 Gov. Code, § 54950 et seq.
133 Gov. Code, § 54951.
134 San Diego Union v. City Council (1983) 146 Cal.App.3d 947, 958.

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135 Gov. Code, § 3500.
136 Gov. Code, § 3505.
137 Gov. Code, § 3505.1.
138 Voters for Responsible Retirement v. Board of Supervisors (1994) 8 Cal.4th 765, 781. 139 People ex rel. Seal Beach Police Officers Assn. v. City of Seal Beach (1984) 36 Cal.3d 591, 600 n.11. 140 Pub. Resources Code, § 21000 et seq.
141 Pub. Resources Code, §§ 21000, 21001, 21003, 21062 and 21063. 142 Wilson v. Beville (1957) 47 Cal.2d 852, 859.
143 San Francisco v. Ross (1955) 44 Cal.2d 52, 55.
144 See Cal. Const., art I, § 19. The Eminent Domain Law may be found at Code of Civil Procedure section 12310.010 et seq. and the relocation assistance statutes may be found at Government Code section 7260 et seq.
145 Cal. Const., art. XI, § 2; Gov. Code, § 56300 et seq. 146 Ferrini v. City of San Luis Obispo (1983) 150 Cal.App.3d 239, 246. 147 Id. at p. 247.
148 Gov. Code, § 6250 et seq.
149 Gov. Code, § 6252, subd. (a).
150 Cal. Const., art. I, §3, subd. (b).

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CHAPTER 3: DRAFTING, ADOPTING, AMENDING AND CHALLENGING A CHARTER Chapter 3

DRAFTING, ADOPTING, AMENDING AND CHALLENGING A CHARTER
This chapter addresses the various ways in which a charter can be drafted or amended; the pros and cons of each option; the degree to which a proposed charter should be flexible versus restrictive and how much detail it should contain; what steps must be taken before submitting a proposed charter or amendment to the voters; and what happens after the voter approval of any charter measure.

A. Adopting, Amending, and Repealing a Charter
A charter may only be adopted, amended, or repealed by majority voter approval.1 A ballot measure to approve a charter may be submitted to the voters by either an elected charter commission or by the city council. Once a charter is in place, there are three ways that amendments (including repeal) can be submitted to the voters: by an elected charter commission, by initiative, or through action of the city council.2
Although an amendment to an existing charter
can be proposed directly by initiative, adoption of a charter cannot. However, an initiative may propose election of a charter commission, which would then draft a charter for submittal to the voters, as discussed below.

The process for adopting and amending a charter is a matter of statewide concern governed exclusively by general laws that supersede conflicting provisions in a city or county charter.3 The argument that the procedure for putting charter amendments on the ballot is immune from conflicting state laws has been rejected.4
B. Drafting the Charter
A charter may be drafted by charter commission (elected by voters), a charter committee (appointed by the city council), or the city council itself.5 When a charter is drafted by a charter
committee or the city council, then the city council decides whether or not to submit the draft charter to the voters. Although the city council will have input into the work of a charter commission, the draft of a charter commission is submitted to the voters with or without city council approval. When a charter is submitted to the voters, the ballot must include a description of new city powers that result from adoption of the charter including whether the city council will have the power to raise its own compensation and the compensation of other city officials without voter approval.6

1. Elected Charter Commission
The members of a 15-member charter commission are elected by the voters as set forth in Government Code section 34450 et seq. Either the council calls an election to form a charter commission7
or formation of the commission is proposed by initiative.8 Such an initiative may only be on the ballot at a general election.9
The format of the ballot measure is as follows:
ƒ The voters first vote on the following question: Shall a charter commission be elected to propose a new charter?
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ƒ If this question receives a majority vote, then the 15 candidates receiving the highest number of votes will organize as the charter commission.10 Once formed, a charter commission has two years from the date of the election to complete and submit a proposed charter. At the end of that two year period, the charter commission is abolished.11 A failure to submit a charter proposal within the two years could mean that the commission would have nothing to submit at the end of the term, and could not continue its work.

A charter commission may, however, submit portions of a proposed charter to the voters from time to time during its term.12 A vacancy on the charter commission is filled by an appointment by the mayor.13 Finally, the charter commission is subject to the Brown Act.

Any charter proposal from the charter commission requires the signature of a majority of charter commissioners, and is then filed with the city clerk’s office.14 Once filed, the proposed charter must be submitted to the voters of the city at the next established statewide general election, provided there are at least 95 days before the election.15

2. City Council
A city council may submit a draft charter to the voters without a charter commission or charter committee.

3. Appointed Charter Committee
The members of a charter committee are appointed by the city council. There is no fixed number of members, nor is there a fixed time for the charter committee to complete its work. When its work is completed, the charter committee submits the proposed charter as a recommendation to the city council. This allows the city council an opportunity to modify a proposed charter or totally reject the proposed charter and not submit it to the voters.

While the charter commission must complete its work within two years, a charter committee could take more time, if needed, to draft a charter or revision. On the other hand, the charter commission process provides for an absolute end point in which to complete the work of drafting a charter proposal.

C. Length
There is no prescribed length for a city charter. Some charters that have been passed are very short (e.g., Buena Park, at just over one page); others may be very long (e.g., Newport Beach, at over 100 sections). The length will be determined by how much detail the voters wish to put into the charter.

Consideration should be given to including in the charter two broad categories:
ƒ Provisions relating to the four core municipal affairs (elections; matters relating to labor relations including compensation for officers and employees; governance structure; and regulation of the police force). Not every charter city will include each “core” municipal affair. But many charter cities will have an interest in including provisions regarding the governance structure and elections.
ƒ The constraints on legislative authority that are relevant to the voters of the particular charter city. For examples, see Chapter 2.

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CHAPTER 3: DRAFTING, ADOPTING, AMENDING AND CHALLENGING A CHARTER D. How Much Detail?
The goal of becoming a charter city is to exert control over municipal affairs in the interests of the community. In order to become a charter city, the voters must approve a charter. However the charter is a limitation on a city council’s control over municipal affairs. Thus, a simple charter that establishes the city as a charter city and provides that all matters deemed municipal affairs may be controlled by ordinance enacted by the city council, provides maximum flexibility (and thus power) to the city council. However, such a charter does not explain how the voters intend the control to be exercised and therefore provides no policy direction to the city council. A more complex charter, which explains in more detail how to exercise control over municipal affairs, will restrict future councils’ power with respect to municipal affairs.

There are risks of both being too prescriptive and not being prescriptive enough. Rules built into the charter can provide protection against abuse, but at the same time be unduly restrictive in light of changed circumstances. For example, one city charter enacted in the 1950s contained a provision which requires public bidding for all public works contracts over $5,000. At the time, that certainly may have seemed an appropriate safeguard to prevent against contracting abuse by council members or staff. However, with the passage of time and inflation, the provision severely limited the city’s ability to use more modern statutory methods such as the Uniform Public Construction Cost Accounting Act Procedures (allowing for less formal bidding for contracts up to $175,000) or design/build contracting. On the other hand, areas that are less susceptible to change over time, such as governance structure, election procedures, voting systems, etc. may be appropriate to include in a charter to provide stability to the municipal organization. For further discussion related to the role charter provisions for police and fire employees’ salaries played in the bankruptcy of San Bernardino, see Chapter 5.

Thus, it is recommended that a prescriptive charter provision be evaluated with the ultimate goal of imposing the desired safeguard without overly restricting the ability to address changed social or economic circumstances. In the case of public works contracts, for example, use of a formula that takes inflation into account (rather than a fixed amount) as the threshold for public bidding would provide the requisite safeguard without being unduly restrictive in the future.

Or there could be a charter provision that allows the amount for a bid requirement to be set by ordinance. Or perhaps the goal of a charter provision is to allow much more leeway in whether public bidding is necessary or to allow exemptions that are not provided for in the general law. The important point is that limiting language should be carefully evaluated to ensure an appropriate amount of flexibility for the future. The amount of detail that is included in a proposed charter is a policy decision to be made by each city.

E. CEQA Compliance
When a city council votes to place a citizen-sponsored initiative concerning the question of whether to create a charter commission, or to amend or repeal a charter, on a ballot, it is not a project which is subject to the California Environmental Quality Act (CEQA).16 The ministerial duty CEQA exemption also applies to a situation where the city council has a mandatory option to either submit the initiative to the voters or to simply adopt the measure17 because it has a ministerial duty to do one or the other under the Elections Code.18 Thus, in the situation where the city council acts to place a voter initiative on the ballot to either create a charter commission or to amend or repeal a charter, or where it acts to place a charter prepared and approved by an elected charter commission on a ballot, any of these actions are exempted from CEQA.

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However, where the council acts on its own to place a proposed charter on a ballot (or to amend or repeal a charter), it is a project, and full compliance with CEQA will be required before placing the matter on the ballot.19 Exactly what must be done to comply with CEQA will vary depending upon the provisions contained in a proposed charter. Land use restrictions in a charter could obviously have at least a potential impact on the environment. Other provisions will have to be evaluated through an initial study unless the common sense exemption or some other CEQA exemption applies. Under the common sense exemption, CEQA does not apply if “it can be seen with certainty that there is no possibility that the activity in question may have a significant effect on the environment.” 20
F. Meyers-Milias-Brown Act Compliance for Labor Items
The Meyers-Milias-Brown Act (Government Code section 3500 et seq., MMBA) requires good faith bargaining regarding wages, hours, and other terms and conditions of employment with representatives of recognized employee organizations prior to making a policy decision which could affect those issues.

Prior to the city council submitting a charter to the voters, a determination must be made as to whether any proposed element may affect wages, hours or other terms and conditions of employment for employees in one or more employee organizations. If so, the city will be required to meet and confer in good faith, which means that a public agency and recognized employee organizations have the obligation to personally meet and confer promptly upon request by either party and continue for a reasonable period to try and reach agreement on matters within the scope of representation prior to proposing a charter or amendments thereto.21 The process should include adequate time for the resolution of impasses when applicable or when such procedures are used by mutual consent.22
The requirement to meet and confer prior to submitting a charter proposal or amendment to the voters does not abridge the council’s power to propose charter amendments under California Constitution article XI, section 3, subdivision (b). Although the statutory requirement of the MMBA encourages binding agreements resulting from bargaining, the governing body retains the ultimate power to refuse an agreement and to make its own decision.23 “This power preserves the council’s rights under article XI, section 3, subdivision (b) — it may still propose a charter amendment if the meet-and-confer process does not persuade it otherwise.” Thus, the meet-and-confer requirement is compatible with the city council’s constitutional power to propose charter amendments.24 G. Voter Approval
Prior to seeking voter approval of a charter committee or council-drafted charter, there must be at least two public hearings of the city council concerning the fact that a charter is being proposed and on the content of the proposed charter. Public hearing notice must be posted in three public places at least 21 calendar days prior to each public hearing.25 The meetings must be at least 30 days apart, and at least one of them must be held outside normal business hours. No vote by the council can occur to place the proposed charter on a ballot until at least 21 days after the second public hearing.26
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