SEPTEMBER 10, 2024, 5:30 PM
SPECIAL CITY COUNCIL AGENDA
CITY COUNCIL CHAMBERS, 150 CITY PARK WAY
*IMPORTANT NOTICE ABOUT PUBLIC COMMENTS AND MEETING PARTICIPATION* City Council Members will be participating from the Council Chamber. Members of the public are invited to attend and participate at: the Council Chambers, 150 City Park Way, Brentwood CA As a courtesy and technology permitting, members of the public may provide remote public comment during public hearings and on business items via the City’s Zoom Platform. However, the City cannot guarantee that the public’s access to teleconferencing technology will be uninterrupted, and technical difficulties may occur from time to time. In those instances, so long as the public may still attend the meeting in person, the meeting will continue. In addition, the Zoom participation option is provided to the public as a courtesy in order to facilitate participation. If Zoom participation is not enabled, the meeting will continue with public attendance in person only. Members of the public desiring to provide comments as a part of the meeting are encouraged to either submit written comments by 3:00 p.m. prior to the meeting or to attend the meeting in person.
HOW PARTICIPATE
The public is invited to participate in the City Council meeting using any of the following methods:
1. IN PERSON:
a. Members of the public can provide in-person comments in the Council Chambers.
Members of the public are encouraged, but not required, to fill out a speaker card. The Council Chambers will have seating available for members of the public to attend in person up to full seating capacity.
2. REMOTE (if enabled): Remarks by members of the public participating via Zoom are limited to speaking on items listed under public hearings; business items; and requests for future agendas items, existing requests. Zoom participation during the general public comment period will not be accepted, except in the event a City Council Member is participating remotely under the provisions of Government Code § 54953 (f). a. Zoom: www.brentwoodca.gov/vcc or Zoom Webinar ID: 760 1397 0037 b. Zoom Phone Numbers. Dial Toll Free: (833) 548-0276 or (833) 548-0282 or (877) 853-5247.
c. During the meeting, each period for public comment will be announced, and participants may use the “Raise Hand” feature on Zoom to request to speak. (If you need instructions on how to use this feature, please contact the City Clerk by noon of the meeting date at [email protected] or 925.516.5182.)
3. E-MAIL
a. Public comments can also be submitted via e-mail to [email protected].
Any public comments received up until 3:00 p.m. of the meeting date will be:
1. distributed to the Council via email before the meeting,
2. posted online for public inspection at www.brentwoodca.gov/meetings and
3. later summarized in the meeting minutes.
b. As e-mails containing public meeting comments are part of the official record, note that personal contact information may be published if it is included with your e-mail.
4. TO WATCH OR LISTEN ONLY:
a. The public may view the meeting via one-way video feed by selecting the video option at the City Council Agendas’ link on the City webpage at www.brentwoodca.gov or via the City’s YouTube Channel: https://www.youtube.com/c/cityofbrentwoodca CITY COUNCIL SPECIAL MEETING AMENDED AGENDA:
ITEM D.2 AMENDED
Zoom Webinar ID: 760 1397 0037
September 10, 2024, 5:30 p.m.
City Council Chambers
150 City Park Way
Brentwood, CA 94513
City Council Zoom Link
A. CALL TO ORDER & ROLL CALL
B. PLEDGE OF ALLEGIANCE
C. PUBLIC COMMENTS
The public is permitted to speak on items that are listed on the Closed Session agenda.
In Person: Please file a speaker’s card with the City Clerk on the form provided on the counter at the back of the Chambers.
Zoom: Please use the Raise Your Hand feature in Zoom during this item to speak under Public Comments.
Members of the public wishing to speak during the public discussion of items that are on the agenda are requested to fill out the speaker form provided and hand the card to the City Clerk at the beginning of (or during) the meeting. Pursuant to Council/Administrative Policy, Meeting Rules and Procedures section 5.2 (Decorum Generally – Public), comments by members of the public are generally limited to five minutes, or less time if a large number of speakers is anticipated, or if approved by the Mayor. A speaker may not allocate his or her time to another speaker. All remarks shall be addressed to the Mayor. Speakers are urged to avoid unnecessary repetition in their remarks and instead simply indicate a agreement with previous speakers.
Speakers desiring answers to questions, at the invitation of the Mayor, may have a staff member provide a brief response. Alternately, a staff member may follow up directly with the speaker during regular City business hours.
D. RECESS TO CLOSED SESSION
D.1 CONFERENCE WITH LABOR NEGOTIATORS
[Gov’t. Code § 54957.6]
City Designated Representatives:
Tim Ogden, City Manager
Sukari Beshears, Director of Human Resources/Risk Manager Kerry Breen, City Treasurer/Director of Finance and Information Systems Gregory Ramirez, IEDA
Employee Organizations:
Brentwood Police Officers’ Association
Brentwood Police Lieutenants Group
Brentwood Managers and Confidential Employees’ Association Brentwood Supervisors and Professional Employees’ Association Brentwood Employees’ Association/Miscellaneous Office Division Brentwood Employees’ Association/Public Works Division
Unrepresented Employees:
Assistant City Manager; Directors of Community Development, Finance and Information Systems/City Treasurer, Human Resources/Risk Manager, Parks and Recreation, Public Works and Engineering/City Engineer; Chief of Police; Assistant Directors of Finance and Information Systems and Public Works; Police Captains; Assistant City Attorney; and Deputy City Attorney
A closed session will be held on September 10, 2024, for the purpose of reviewing the City Council’s position and instructing its designated representative regarding the salaries, salary schedules, or compensation paid in the form of fringe benefits of its represented and unrepresented employees, as applicable, and for represented employees, any other matter within the statutorily-provided scope of representation. [Gov’t. Code §54957.6].
D.2 CONFERENCE WITH LEGAL COUNSEL - THREATENED LITIGATION Pending litigation; threat of litigation pursuant to Government Code Section 54956.9(d)(2) and (e)(5)
YIMBY Law and West Coast Home Builders
A closed session will be held on September 10, 2024, for the purpose of conferring with and/or receiving advice from your legal counsel concerning pending litigation; specifically, the threat of litigation. Based on existing facts and circumstances and the advice of its legal counsel, the City Council has received two separate statements threatening litigation against the City. [Gov’t. Code §54956.9(e)(5)]. The documents memorializing these threats are attached to this memorandum and are likewise available for public inspection pursuant to Government Code Section 54957.5.
E. ADJOURNMENT
Any disclosable public records related to an agenda item for the open session of this meeting distributed to all or a majority of the City Council less than 72 hours before this meeting is available for inspection at City Hall, located at 150 City Park Way, during normal business hours.
These writings will also be available for review at the City Council meeting in the public access binder in the entrance of the City Council Chambers.
Public comments received after 3:00 p.m. of the meeting date, but prior to the start of the meeting, will be emailed to the City Council, posted online at www.brentwoodca.gov/councilmeetingonline within one day following the meeting, and will be summarized in the meeting minutes.
The Closed Captioning provided via Zoom is auto generated. It is not the official record and is provided as a convenience.
If you challenge the any of the matters listed under 'Public Hearings' in court, you may be limited to raising only those issues you or someone else raised at the public hearing described in this notice, or in written correspondence delivered to the Brentwood City Council at, or prior to, the public hearing
NOTICE
In compliance with the Americans with Disabilities Act, the meeting room is wheelchair accessible and disabled parking is available at the City Hall parking lot. If you are a person with a disability and you need disability-related modifications or accommodations to participate in this meeting, please contact the City Clerk's Office at (925) 516-5440 or fax (925) 516-5441. Notification 48 hours prior to the meeting will enable the City to make reasonable arrangements to ensure accessibility to this meeting. {28 CFR 35.102-35, 104 ADA Title II}
POSTING STATEMENT
On September 5, 2024, a true and correct copy of this agenda was posted on the City Hall Bulletin Board, outside City Hall, 150 City Park Way, Brentwood, CA 94513 and at our website www.brentwoodca.gov
A complete packet of information is available for public review at City Hall or on our website at www.brentwoodca.gov
CA/Memos/CSM/2024/044.1.docx
*AMENDED* MEMORANDUM FROM THE CITY ATTORNEY
CONCERNING A CLOSED SESSION BEFORE
THE CITY COUNCIL OF THE CITY OF BRENTWOOD
TO: Honorable Mayor and Members of the City Council
FROM: Katherine Wisinski, City Attorney
SUBJECT: Closed Session
CONFERENCE WITH LEGAL COUNSEL- THREATENED LITIGATION
Pending litigation; threat of litigation pursuant to Government Code Section 54956.9(d)(2) and (e)(5)
YIMBY Law and West Coast Home Builders
A closed session will be held on September 10, 2024, for the purpose of conferring with and/or receiving advice from your legal counsel concerning pending litigation; specifically, the threat of litigation. Based on existing facts and circumstances and the advice of its legal counsel, the City Council has received two separate statements threatening litigation against the City. [Gov’t. Code §54956.9(e)(5)]. The documents memorializing these threats are attached to this memorandum and are likewise available for public inspection pursuant to Government Code Section 54957.5.
If the City Council accepts a settlement offer signed by the opposing party, the substance of the settlement shall be disclosed immediately following this closed session. [Gov’t. Code §54957.1(a)(3)(A)].
Any disclosures shall include the vote or abstention of each member.
Dated: September 6, 2024.
Katherine Wisinski
City Attorney
PATTERSON & O’NEILL, PC
235 Montgomery Street, Suite 950
San Francisco, CA 94104
Telephone: (415) 907-9110
Facsimile: (415) 907-7704
www.pattersononeill.com
September 5, 2024
VIA E-MAIL
Brentwood City Council
City Hall, 150 City Park Way
Brentwood, CA 94513
Re: Bridle Gate Project Appeal
Dear Mayor Bryant and Councilmembers:
Our office represents the project applicant, WCHB Development, LLC. On August 27, City Council heard an appeal of the Planning Commission’s denial of this housing development project. We heard the community’s concerns loud and clear, and although we are ready to commence legal action if the project is denied, we would like to find a path forward that responds to the community’s preferences.
Specifically, Councilmembers listed the following issues as reasons to deny the project:
1. Preference for one larger park instead of two smaller parks
2. Preference for two connections to Sand Creek Road
3. Concern that the existence of noise from Highway 4 will not be disclosed to future homebuyers
4. Concern that the project does not reduce existing vehicle-miles traveled (“VMT”)
5. Concern that ridgelines will be deteriorated
6. Concern that first responders cannot move quickly through traffic
7. Assertion that there should be fewer homes
As discussed below, these clearly are not legally permissible grounds to deny the project or reduce its density. Nevertheless, the project’s engineers are working overtime to prepare a configuration that includes one larger park and two connections to Sand Creek Road. The applicant is willing to offer this compromise pending confirmation from the engineers. We expect it will be ready for your review shortly.
Additionally, the applicant will commit to disclosing the existence of potential noise from the highway to future homebuyers who might be impacted, as Council requested. Moreover, the project will comply with the City’s adopted standards and will implement the mitigation measures prescribed by the Final REIR, including soundwalls and STC 34 windows.
We address Council’s remaining concerns in turn:
Brentwood City Council
September 5, 2024
Concern that the project does not reduce existing vehicle-miles traveled (“VMT”) VMT was thoroughly studied using the analysis methodology required by the Contra Costa Transportation Authority’s Growth Management Program. This is the applicable VMT model in Brentwood. While one Councilmember asserted that a different model that she found on the internet should be used (the Fehr and Peers screening tool), this is not a proper model for this analysis. In fact, its website includes the following disclaimer: “Fehr & Peers makes no warranty regarding the data’s accuracy, quality, or appropriate use. This data set is intended to complement other VMT data sources, such as regional or local travel demand models. Since the VMT estimates are new and have not been fully validated or peer reviewed, the data is offered as-is and should be thoroughly reviewed for reasonableness in any applications.” An engineering memorandum will follow shortly, explaining in detail that the correct methodology was used and reconfirming the validity of the VMT study.
Concern that ridgelines will be deteriorated
General Plan Policy COS 7-1 states: “Protect Brentwood’s ridgelines (hilltops and steep hillsides) from erosion, slope failure, and development.” The project complies with this policy and avoids degrading any ridgeline by dedicating 25 acres of permanent open space along the western property line. The project is sited within the area designated by the City for residential development and does not encroach into the area designated for open space. The Planning Commission’s findings are simply incorrect.
But even if the Planning Commission’s findings were correct, this type of finding cannot be used to deny the project. The Housing Accountability Act (“HAA”) only allows a local government to base a project disapproval or density reduction on applicable objective code standards. (Gov.
Code § 65589.5(j)(1)(A)-(B); see also Cal. Renters Legal Advocacy & Educ. Fund v. City of San Mateo (2021) 68 Cal.App.5th 820, 844.) The HAA defines “objective” as “involving no personal or subjective judgment by a public official and being uniformly verifiable by reference to an external and uniform benchmark or criterion available and knowable by both the development applicant or proponent and the public official.” (Gov. Code § 65589.5(h)(8).) Policy COS 7-1 is not an outright prohibition against ridgeline development and includes no external or uniform benchmark; it is merely a general goal, akin to policies that encourage consistency with “neighborhood character.” Courts are clear: such policies are preempted by the HAA. (California Renters Legal Advoc. & Educ. Fund v. City of San Mateo (2021) 68 Cal. App. 5th 820.)
Brentwood City Council
September 5, 2024
Concern that first responders cannot move quickly through traffic Likewise, this concern is not an objective standard. While this concern is aimed at protecting public health and safety – which are clearly important to all – the HAA prohibits project denial without a finding that the project “would have a specific, adverse impact upon the public health or safety unless the project is disapproved or approved upon the condition that the project be developed at a lower density,” and “[t]here is no feasible method to satisfactorily mitigate or avoid the adverse impact.” As defined in the HAA, “‘specific, adverse impact’ means a significant, quantifiable, direct, and unavoidable impact, based on objective, identified written public health or safety standards, policies, or conditions as they existed on the date the application was deemed complete.” (Gov. Code § 65589.5(j)(1).) No such written benchmark is violated by the project. In fact, the Final REIR specifically studied these issues and determined that there will not be a significant unmitigated impact on emergency response services. (See Mitigation Measures XV-1, XV-2, and XV-3.)
Assertion that there should be fewer homes
The project is being developed consistent with the General Plan. The zoning for the project site in BMC Chapter 17.486 is PD-36, but the corresponding map does not show any subarea boundaries. City Staff has explained that subarea C standards apply to the project and determined that the project complies with all applicable, objective standards. This determination is binding.
The HAA requires that a determination of noncompliance be issued within 60 days of filing a complete application. (Gov’t. Code § 65589.5(j)(2)(A).) If the city fails to do so, “the housing development project shall be deemed consistent, compliant, and in conformity with the applicable plan, program, policy, ordinance, standard, requirement, or other similar provision.” (Gov. Code § 65589.5(j)(2)(B).) The City did not issue a notice of noncompliance on any of the above bases within the requisite 60-day timeframe (approximately three years ago). As a result, the project is deemed compliant with all applicable standards by operation of law.
Under the HAA, compliance determinations are governed by a “reasonable person” standard that favors project approval. The question is merely whether “substantial evidence . . . would allow a reasonable person to conclude that the housing development project” complies with applicable standards. (Gov. Code § 65589.5(f)(4).) We respectfully posit that learned City planning staff are reasonable people, and their determination that the project complies with all objective standards must be accepted as true by a reviewing court. To resolve any doubt: in an HAA case, the City, rather than the project sponsor, bears the burden of proof to demonstrate that its decision conformed to the HAA. (Gov. Code § 65589.6.)
As a code-compliant project, the Bridle Gate application must be approved at the density proposed. Moreover, SB 330 prohibits the imposition of a cap on the number of homes proposed.
Brentwood City Council
September 5, 2024
Waivers of development standards
The applicant has committed to dedicating five percent of the units as affordable to very lowincome households. The exact affordability levels were provided to the City Clerk in writing prior to the appeal hearing. As such, the project qualifies for the protections of Govt. Code § 65915, the state density bonus law (“DBL”).
While the project qualifies for the DBL’s protections, it does not actually seek a density bonus or incentives/concessions. (These are not required in order to qualify for the DBL.) However, a project that includes five percent VLI units qualifies for unlimited “waivers” of development standards. These waivers are automatic and do not need to be requested by the applicant. If there is a development standard that would preclude construction of the project as proposed by the applicant, the development standard must be waived. The state Department of Housing and Community Development (“HCD”) has been clear: a city cannot ask the applicant to redesign a density bonus project to avoid the need for waivers. The project must be approved as proposed:
Once a project qualifies for a density bonus, “the law provides a developer with broad discretion to design projects with additional amenities even if doing so would conflict with local development standards.” Bankers Hill 150 v. City of San Diego (2022) 74 Cal.App 5th 755, 774-75 [289 Cal.Rptr.3d 268, 282]. Similarly, once a project qualifies for a density bonus, the SDBL does not authorize a local agency to deny a proposed waiver, including by way of a required re-design, based on the idea that the project conceivably could be redesigned to accommodate the same number of units without amenities. Wollmer v. City of Berkeley (2011)193 Cal.App.4th 1329, 1346-47 [122 Cal.Rptr.3d 781, 793].
(Department of Housing and Community Development, 3832 18th Street Project – Notice of Violation, December 29, 2022.)
The City Attorney stated at the hearing that a density bonus application must be submitted at the beginning of the application process. With all due respect, that requirement applies to Brentwood’s local density bonus program. (BMC § 17.725.006(C).) The state DBL does not include such a requirement, and state law preempts any attempt by a local government to impose local constraints on the state DBL. (“A local ordinance is preempted if it conflicts with the density bonus law by increasing the requirements to obtain its benefits.” (Schreiber v. City of Los Angeles (2021) 69 Cal. App. 5th 549, 558, citing Latinos Unidos Del Valle de Napa Y Solano v.
County of Napa (2013) 217 Cal.App.4th 1160, 1169.)
And no notice of a density bonus is required in this case in any event, since no density bonus or incentives/concessions are requested.
Brentwood City Council
September 5, 2024
The project complies with all applicable standards. Yet even if it did not, the items identified by City Council as bases to deny the project would be automatically waived pursuant to Gov. Code § 65915, California’s state density bonus law.
Penalties for violating the HAA
As Councilmembers noted, penalties for violating the HAA are severe. Knowingly denying this project without a legitimate basis would qualify as bad faith, potentially subjecting the City to fines of at least $50,000 per housing unit. (Gov. Code § 65589.5(l).) The applicant would also incur severe economic damages resulting from such a denial and would seek to recover those damages from the City, in addition to its attorney’s fees as authorized by law. Our firm has extensive experience litigating these issues, and we are confident that a court will agree with our analysis.
Conclusion
It is our sincere hope that we can find a solution that responds to the community’s concerns while allowing this housing development project to move forward as required by law. The applicant has owned the property since 1991, and it is time for this experienced developer to develop the property and provide much needed housing to the community. We anticipate having plans ready for your review in the near future and will be happy to engage further with City staff.
We urge City Council to not finalize an unlawful disapproval.
Very truly yours,
PATTERSON & O’NEILL, PC
__________________________
Ryan J. Patterson
Attorneys for WCHB Development, LLC