CITY COUNCIL SPECIAL MEETING AGENDA REPORT
Meeting Date: January 4, 2024
From: Interim City Manager Clay Holstine
Subject: City Council Protocol for Development and/or Zoning Applications Background
This year will be a busy year for the City, and par�cularly the Community Development Department, as staff con�nues its review of the pending applica�ons to develop the Baylands site and the former quarry property. The respec�ve environmental impact statements for each will be issued by the City in the coming months, and the applicants for each are already expressing interest in beginning to nego�ate development agreements assuming their project’s EIR is approved.
Purpose and Context
As we move into perhaps the busiest phases of the reviews of each project, I have been asked to share any insights with the City Council about prac�ces followed by prior Councils to help make the process as efficient as possible for all involved. Below I outline prac�ces of this nature that this Council may itself want to consider and follow.
Before I do so, however, I want to underscore that the City Council is the ul�mate arbiter of what, if any, informal prac�ces it wishes to adopt to help it ensure that each project is reviewed efficiently and fairly. City staff will support the Council’s decisions in this regard, including ensuring that the Council’s decisions, and any prac�ces it may follow to get to the decisions, are consistent with the Council’s and City’s legal responsibili�es.
Past Prac�ces
I have reviewed the prac�ces that different City Councils developed and adhered to in the past when reviewing complex development projects. Four informal prac�ces have emerged that may be of interest to this Council for possible adherence or avoidance.
1. Nego�a�ons Are Directed by the Full City Council and Conducted by the City Manager Prior Councils have uniformly followed a process where they exclusively provide final direc�on to the City Manager about what they believe must be addressed in discussions with an applicant or in a development agreement. In each instance, the City Manager was vested with exclusive authority to nego�ate with the applicant but within the parameters established by the full Council. This approach has been popular because it ensures each Council Member has an equal voice in the process while preven�ng any third party from being able to sew confusion and even mistrust between Council Members.
2. Mee�ngs
The most common prac�ce followed by prior City Councils was to ensure that if a Council member was to take part in a mee�ng with an applicant, its consultants and/or counsel, that a member(s) of City staff should also atend. Prior Council’s believed this approach helped ensure that both the applicant and City would have the most knowledgeable people in mee�ngs based on the topic and/or agenda for each mee�ng. There was also a view that this would also help surface any misunderstandings or misconcep�ons between the applicant and the City as early as possible in the City’s formal review process.
One thing Councils have not done in the past is provide a regular public update on mee�ngs with the applicants. If the Council desires, an agenda item under Mayor & Council Maters could address mee�ngs, development applica�on status, etc. This would have the value of adding another layer of transparency to the process.
Adop�ng this approach would not prevent Council Members from working on a development agreement for the project if a subcommitee process is established (discussed below), it would simply ensure that appropriate City staff is also joining the mee�ng. Similarly, it would not prevent a subcommitee of the Council from mee�ng with an applicant because City staff would already be present for such a mee�ng.
3. The Subcommitee Process
This and other Councils have used a subcommitee process successfully in understanding and responding to major issues. The Council may choose to do that here. If so, the most common example is that a Council subcommitee reviews the projects and iden�fies issues for discussion with the full Council. On one occasion in the past, a subcommitee of the Council and of the Planning Commission met jointly to review issues presented by a proposed development and jointly made recommenda�ons to the full Council. Alterna�vely, the Council can con�nue to sit as a “commitee of the whole” when reviewing the projects with staff and outside experts so that direc�on to the City Manager comes from the full body. While the subcommitee process has worked well on many issues, given that we are at the point in the process where applica�ons have been submited and environmental review is nearly complete (for the purposes of dra� environmental impact reports) the subcommitee process may not be how the City Council wishes to proceed.
4. The Timing of Mee�ngs
Over �me various individual Council Members have declined to accept or convene mee�ngs directly with an applicant once their land use development applica�on or applica�on for zoning amendment is on file. As you would imagine there are those who praise this approach as ensuring that the Council is only involved in the final decision-making and therefore avoids any appearance of conflicts of interest, etc. And, there are others who cri�cize it for too broadly removing the people’s elected representa�ves from the process.
The one observa�on I can offer is that if the Council or individual Council Members were to abide by the proposed process under Item 2 above, any such concerns would be moot.
5. Planning Commission
Prior Councils have directed members of the Planning Commission and other City commitees and commissions not meet or confer, directly or indirectly, with an applicant or any representa�ve of a project for which an applica�on is pending unless it is doing so via a Commission subcommitee. This approach has helped ensure that nego�a�ons between the City and the applicant are directed by the Council alone.
Other Considera�ons for Knowledge/Awareness
1. It is to be expected and en�rely appropriate that Council Members may be engaged by their cons�tuents about development issues in the City. You are their representa�ves, and they have every right to ask you to listen to their concerns and to give them due considera�on.
Similarly, you have every right to decline to atend such mee�ngs. If you do hold any such mee�ngs, the most important cau�on is to be mindful of and ensure your ac�ons are compliant with the Brown Act and related responsibili�es.
2. Each of you is elected individually and it is en�rely appropriate that one or more of you may decide individually to accept mee�ngs with the applicant, the proponents and opponents of their project, third party advocacy groups, etc., notwithstanding the benefits of the proposed prac�ces discussed above because you have made a genuinely good faith determina�on that taking these types of mee�ngs are in the City’s best interests and so long as you comport yourself in such mee�ngs in full compliance with your legal responsibili�es.
3. There are common concerns with mee�ngs taken outside of Council-agreed prac�ces that each of you should be mindful of whether you are mee�ng with a cons�tuent or an advocacy group.
• Your good faith judgement as to whom to meet and about what with respect to the projects is subject to scru�ny by enforcement bodies like the FPPC and the Atorney General’s Office, so consider seeking advice from the City Atorney as to factors you should be considering in making such a judgement.
• Experience confirms that it is individual mee�ngs or even rumors of individual mee�ngs that are o�en the basis for the damaging misconcep�ons of the independence of past Councils’ decisions (e.g., the Council’s subcommitee process has rarely led to misunderstandings). • One poten�al way to address this is for Council Members to share mee�ngs they may have under the Mayor & Council Members sec�on of the agenda. That also allows for more transparency. The Council could exclude conversa�ons and mee�ngs with non-affiliated cons�tuents but include cons�tuents represen�ng or poten�ally represen�ng an interest group.