Colton City Council
April 19, 2022

1 CITY OF COLTON
City Hall, Council Chambers
650 N. La Cadena Drive
Colton, CA 92324
Website: www.coltonca.gov

Mayor Frank J. Navarro
Council Members:

David J. Toro - District 1
Ernest R. Cisneros - District 2
Kenneth J. Koperski - District 3
Dr. Luis S. Gonzalez - District 4
John R. Echevarria - District 5
Isaac T. Suchil - District 6

City Treasurer Aurelio De La Torre

City Manager William R. Smith
City Attorney Carlos Campos
City Clerk Carolina R. Padilla

AGENDA

CITY COUNCIL,

COLTON UTILITY AUTHORITY, COLTON PUBLIC FINANCING AUTHORITY,

COLTON HOUSING AUTHORITY

REGULAR MEETING
TUESDAY, APRIL 19, 2022 – 5:00 P.M.

CITY HALL, COUNCIL CHAMBERS
CLOSED SESSION - 5:00 p.m.

CLOSED SESSION CALLED TO ORDER

ROLL CALL
PUBLIC COMMENT-Closed Session
This is the portion of the meeting specifically set aside to invite your comments regarding Closed Session items; however, any matter that requires action will be referred to staff for investigation and report at a subsequent Council meeting. The Council is prohibited by law from discussing or taking immediate action on items during this public comment period.

Persons desiring to submit paperwork to the City Council Members shall provide copy of any paperwork to the City Clerk for the Official Record.

Speakers will be limited to 3 minutes; provided, however, that the presiding officer shall have certain discretion to extend or limit time as provided for in the City Council Manual of Procedure.

2 A. CONFERENCE WITH LABOR NEGOTIATORS
Pursuant to Government Code Section 54957.6
Agency designated representatives: Tom Cody, Human Resources Director Employee Groups: International Brotherhood of Electric Workers, Local 47 - Electric Division B. CONFERENCE WITH LEGAL COUNSEL- EXISTING LITIGATION
Pursuant to Government Code Section 54956.9(d)(2)/(e)(1) One (1) Potential Case
C. CONFERENCE WITH LEGAL COUNSEL - EXISTING LITIGATION
Modern Pacific Homes, LLC. V. City of Colton, et al.

Pursuant to Government Code Section 54956.9(d)(1)
San Bernardino Superior Court, Case No. CIVSB2120518

CITY ATTORNEY ORAL REPORT ON CLOSED SESSION ACTIONS

RULES OF DECORUM

To help conduct the business of the City Council in an orderly fashion, the City Council has adopted rules pertaining to decorum and order, as provided for in the City Council Manual of Procedure. The City Council will strictly enforce these rules in order to allow full expression of ideas and opinions by councilmembers, staff and the public. Generally, the City's rules of decorum prohibit comments or actions which willfully disrupt the meeting. All remarks and questions shall be addressed to the Council as a whole and not to any particular member. No individual Councilmember or member of the City staff shall be questioned without first obtaining permission from the Presidi ng Officer. The City Council asks that all persons - including councilmembers, staff and the public - act and speak respectfully.

OPEN SESSION
6:00 P.M.

OPEN SESSION CALLED TO ORDER
INVOCATION Pastor Johnny De La Rosa- Echoes of Love Ministry

FLAG SALUTE

ROLL CALL

CEREMONIAL MATTERS
Presentations, Awards, Proclamations
 CCAC Pat Hammers Spirit Award- Recognizing Jaqueline Shook  Business Focus- Save More Market

3 MAYOR AND COUNCIL ITEMS

GIFT DISCLOSURES
Prior to rendering a decision in any proceeding involving a license, permit, contract or other entitlement pending before the city council, any council member who has received been promised a gift or gifts aggregating $50.00 or more in value within the preceding twelve months from a party or part icipant in the proceeding shall disclose that fact either orally or in writing during open session. This disclosure shall be made part of the official public record of the proceeding, either as part of the minutes of the meeting or as a separate writing filed with the city. (CMC Section 2.04.030) AB 1234 ORAL REPORTS
Members of the city council shall provide brief reports on meetings attended at the expense of the city. (GC Section 53232.3(d))

APPOINTMENTS

MAYOR AND COUNCIL DISCUSSION ITEMS

PUBLIC HEARINGS
To speak on public hearing items, it is requested that you obtain a card from the City Clerk and complete it by noting the agenda item number, as well as whether you are in favor, opposition or neither, and give it to the City Clerk. The applicant will be allowed 5 minutes to address the Council and all other persons will be allowed 3 minutes; provided, however, that the presiding officer shall have certain discretion to extend or limit time as provided for in the City Council Manual of Procedure. (1) Rescinding and Repealing Resolution Nos. R-29-21 and R-84-21 (Litton-Bostick Subdivision) - TIME AND PLACE FIXED TO CONSIDER A PUBLIC HEARING TO RESCIND AND REPEAL RESOLUTION NUMBERS R -29-21 AND R-84-21 AND REINSTATING PLANNING COMMISSION’S APPROVAL (TENTA TIVE TRACT MAP NO. 18233 - DAP-001-378 – LITTON-BOSTICK SUBDIVISION), RESOLUTION NO. R-40-22. [Staff Person: Mark Tomich]
Mayor announces the Public Hearing Open.

City Clerk submits the Affidavit of Publication and reports on protests or objections theret o.

Staff Presentation.

Public Comment.

After hearing public comment, on motion by Councilmember __________, seconded by Councilmember _________, the Public Hearing is terminated.

MOTION __________ SECOND __________

4 (2) Policy - Use of Military Equipment by Police Department - TIME AND PLACE FIXED TO CONSIDER A PUBLIC HEARING TO INTRODUCE BY TITLE ONLY ORDINANCE NO. O-05-22, AN ORDINANCE OF THE CITY COUNCIL

OF THE CITY OF COLTON, CALIFORNIA, ADOPTING A MILITARY EQUIPMENT USE POLICY, IN ACCORDANC E WITH ASSEMBLY BILL 481, ORDINANCE NO. O-05-22.
[Staff Person: Hank Dominguez]
Mayor announces the Public Hearing Open.

City Clerk submits the Affidavit of Publication and reports on protests or objections thereto.

Staff Presentation.

Public Comment.

After hearing public comment, on motion by Councilmember __________, seconded by Councilmember _________, the Public Hearing is terminated.

MOTION __________ SECOND __________

(3) Subdivision Ordinance Update and SB 9 - Continue Public Hearing: Subdivision Ordinance Update and SB 9, ORDINANCE NO. O-01-22.
[Staff Person: Mark Tomich]
Mayor announces the Public Hearing Open.

City Clerk submits the Affidavit of Publication and reports on protests or objections thereto.

Staff Presentation.

Public Comment.

After hearing public comment, on motion by Councilmember __________, seconded by Councilmember _________, the Public Hearing is terminated.

MOTION __________ SECOND __________

BUSINESS ITEMS
There are no business items.

PUBLIC COMMENT Limit 3 Minutes
This is the portion of the meeting specifically set aside to invite your comments regarding Consent Calendar items and other general comments about matters not on the agenda; however, any matter that requires action will be referred to staff for investigation and report at a subsequent Council meeting. The Council is prohibited by law from discussing or taking immediate action on items during this public comment period.

Persons desiring to submit paperwork to the City Council Members shall provide copy of any paperwork to the City Clerk for the Official Record.

Speakers will be limited to 3 minutes; provided, however, that the presiding officer shall have certain discretion to extend or limit time as provided for in the City Council Manual of Procedur e.

5 CONSENT CALENDAR
All matters listed under the Consent Calendar are considered by the City Council to be routine and will all be enacted by one motion. There will be no separate discussion of these items prior to the time the City Council votes on the motion, unless councilmembers, staff or the public request that specific items be discussed and/or removed for separate discussions or action.

(4) Minutes - Approval of Minutes for the City Council Regular Meeting Held on April 5, 2022, on file in the Office of the City Clerk.
[Staff Person: Carolina Padilla]
(5) Warrants - Approve voucher numbers 198233 to 198316 dated 03/28/2022 and totaling $76,682.45; voucher numbers 198317 to 198431 dated 03/31/2022 and totaling $1,291,883.40 and a payroll disbursement listing dated 02/19/2022 to 03/04/2022 and totaling $948,895.75. [Staff Person: Stacey Dabbs]
(6) Agreement - San Bernardino County Fire Protection District - Approve and Adopt San Bernardino County Fire Protection District Household Hazardous Waste Five Year Agreement, RESOLUTION NO. R-25-22. [Staff Person: Brian Dickinson]
(7) Annual Housing Progress Report 2021 - Approve the 2021 Annual Housing Progress Report, RESOLUTION NO. R-39-22.
[Staff Person: Mark Tomich]
(8) Budget Appropriation - Fire Department - Approve Increased Budget Appropriation in the Fire Department Due to Fuel Costs, RESOLUTION NO. R-37-22.
[Staff Person: Tim McHargue]
(9) Pre-Qualified List - Environmental Consultants - Approve Environmental Consultants Pre-Qualified List, RESOLUTION NO. R-28-22.
[Staff Person: Mark Tomich]
(10) Notice of Completion - Citywide Sidewalk Repair Project FY2020-21 - Approve Notice of Completion for FY2020-21 Citywide Sidewalk Repair Project.
[Staff Person: Brian Dickinson]

MAYOR AND COUNCIL ORAL REPORTS AND COMMENTS
Comments from Mayor and Council on various issues and activities throughout the community.

CITY MANAGER'S REPORTS

ADJOURNMENT

6 I, Stephanie Vargas, the Acting Deputy City Clerk, hereby certify that a true and correct, accurate copy of the foregoing agenda was posted , at least seventy-two (72) hours prior to the meeting per Government Code 54954.2, at the following locations:

City of Colton City Hall 650 N. La Cadena Drive
City of Colton Website, www.coltonca.gov <http://www.coltonca.gov>

PROCEDURES FOR ADDRESSING CITY COUNCIL

For the Official Record, it is requested that you obtain a card from the City Clerk and complete it by noting a specific item number on the Agenda, if applicable, or you can identify the subject that you wish t o address under the Public Comment portion of the Agenda. The City Council encourages public input on all City issues within the Rules of Decorum. Speakers will be limited to the time periods provided on the Agenda; provided, however, that the presiding o fficer shall have certain discretion to extend or limit time as provided for in the City Council Manual of Procedure.

RULES OF DECORUM

To help conduct the business of the City Council in an orderly fashion, the City Council has adopted rules pertaining t o decorum and order, as provided for in the City Council Manual of Procedure. The City Council will strictly enforce these rules in order to allow full expression of ideas and opinions by councilmembers, staff and the public. Generally, the City's rules of decorum prohibit comments or actions which willfully disrupt the meeting. All remarks and questions shall be addressed to the Council as a whole and not to any particular member. No individual Councilmember or member of the City staff shall be questio ned without first obtaining permission from the Presiding Officer. The City Council asks that all persons - including councilmembers, staff and the public - act and speak respectfully.

NOTICE TO PUBLIC

Staff reports or other written documentation relat ing to each item referred to, on the Agenda, are available for public inspection at the following locations: Office of the City Clerk, 650 N. La Cadena Drive, Colton, CA; City of Colton Public Library, 656 9 th St., Colton, CA; or the City of Colton Internet Website, www.coltonca.gov. Any person having questions concerning any item on the Agenda may call the City Clerk at 370 -5191 to make inquiry concerning the nature of the item described on the Agenda. The City Clerk shall direct inquiries to the appropriate office.

All matters listed under the Consent Calendar are considered by the City Council to be routine and will all be enacted by one motion. There will be no separate discussion of these items prior to the time the City Council votes on the motion, unless councilmembers, staff or the public request that specific items be discussed and/or removed for separate discussions or action.

7 In compliance with the American with Disabilities Act, if you need special assist ance to participate in a City Meeting, please contact the City Clerk’s Office at 909 -370-5001. Notification 48 hours prior to the meeting will enable the City to make reasonable arrangements to ensure accessibility to this meeting.

LEGAL CHALLENGES

If you challenge in court any discussion or action taken concerning an item on this Agenda, you may be limited to raising only those issues you or someone else raised during the meeting or in written correspondence delivered to the City at or prior to the Cit y's consideration of the item at the meeting.

MANUAL OF PROCEDURE

The City Council adopted its Manual of Procedure pursuant to Resolution No. R -150-07; Amended by Minute Action on December 2, 2014 and adopted by Resolution No. R -03-15 on January 20, 2015. Copies are available in the Office of the City Clerk.

ITEM NO. 1

STAFF REPORT

DATE: APRIL 19, 2022
TO: HONORABLE MAYOR AND CITY COUNCIL MEMBERS
FROM: BILL SMITH, CITY MANAGER
PREPARED BY: MARK TOMICH, DIRECTOR
SUBJECT: TIME AND PLACE FIXED TO CONSIDER A PUBLIC HEARING TO RESCIND AND REPEAL RESOLUTION NUMBERS R-29-21 AND R-
84-21 AND REINSTATING PLANNING COMMISSION’S
APPROVAL (TENTATIVE TRACT MAP NO. 18233 - DAP-001-378 – LITTON-BOSTICK SUBDIVISION), RESOLUTION NO. R-40-22.

RECOMMENDED ACTION

Staff recommends that the City Council take the following action:

A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF COLTON RESCINDING AND REPEALING RESOLUTION NOS. R-29-21 AND R-84-21 TO REINSTATE THE COLTON PLANNING COMMISSION’S APPROVAL OF A NEGATIVE DECLARATION

AND MITIGATION MONITORING AND REPORTING PROGRAM PURSUANT TO THE

CALIFORNIA ENVIRONMENTAL QUALITY ACT (CEQA), A TENTATIVE TRACT MAP (NO. 18233), LOT LINE ADJUSTMENT AND ARCHITECTURAL & SITE PLAN REVIEW TO ALLOW DEVELOPMENT OF AN 86- LOT CLUSTERED SUBDIVISION ON PROPERTY LOCATED AT 300 WEST LITTON AVENUE, WEST OF BOSTICK AVENUE, SOUTH OF LITTON AVENUE AND NORTH OF PALM AVENUE (ASSESSOR’S PARCEL NUMBERS: 0275-071-15; 0275-081-01; 0275-081-02; & 0163-351-25).

BACKGROUND

The Project
In December of 2015 Modern Pacific Homes, LLC (Applicant) filed applications (File Index No.

DAP 001-378) to develop a clustered subdivision project on a 49.339 -acre plot of land located

1.1 Packet Pg. 8
Staff Report to the Mayor and City Council
Rescinding and Repealing Resolution Nos. R-29-21 and R-84-21 (Litton-Bostick Subdivision) April 19, 2022

south of Litton Avenue, west of Bostick Avenue and north of Palm Avenue. The applications included the following:

1. A Lot Line Adjustment to re -subdivide the underlying parcels to accommodate the subdivision and other land uses on the 242+ acre site; and

2. A Tentative Tract Map (No. 18233) to subdivide a 49.39 acre -acre portion of the 242+ acre site into 89 clustered residential lots; and

3. Architectural & Site Plan Review for development of property with an average slope grade greater than 20 percent consistent with the City’s Hillside Ordinance (CMC 18.41), which requires landform grading on steep hillsides with slopes greater than 25%; and

4. A Conditional Use Permit (CUP) to allow the cluster development with deviations to required development standards, including reduced lot sizes, lot dimensions, dwelling sizes, building setbacks and increased lot coverage, to allow for preservation of st eep hillsides as open space on properties within the R -1 (Low Density Residential) and V -L (Very Low Density Residential) zones (“Project”).

(A Variance application to allow steeper driveways was originally submitted and later withdrawn when the Applicant re-designed the subdivision to accommodate conforming driveways. Further, although a Lot Line Adjustment was requested on the original application, documentation information was not formally submitted and the Applicant requested that consideration of a lo t line adjustment be deferred. As a result, to the extent needed, it may be processed later. As the Project progressed, staff determined that the Conditional Use Permit could be used to regulate the architectural and site plan for the Project. As a resul t, it was determined that Architectural & Site Plan Review approval was not needed.)

Planning Commission Review

Between 2015 and 2020, the City reviewed and commented on the Project and various revisions submitted by the Applicant. The initial review pr ocess included five meetings by the City’s Application Review Committee in 2017, 2018 and 2019, a neighborhood meeting in 2017, two Planning Commission workshops in 2018 and 2020, and a CEQA review for environmental effects in 2020.

On June 23, 2020, th e City’s Planning Commission held its first public hearing on the Project, along with a public workshop. This hearing was followed by another six public hearings during which more Project revisions were reviewed. On February 23, 2021, after the seventh pu blic hearing, the Planning Commission adopted Planning Commission Resolution No. R -08-21 approving the Project. The Planning Commission’s final approval was for 86 -lot subdivision, a 29-acre private open space area, a one -acre private park, and pedestrian paths. (Attachment 3 and 4)

City Council Review & Decision

1.1 Packet Pg. 9
Staff Report to the Mayor and City Council
Rescinding and Repealing Resolution Nos. R-29-21 and R-84-21 (Litton-Bostick Subdivision) April 19, 2022

After the Planning Commission’s approval, the Project was appealed by a resident group. The City Council subsequently held several hearings on the Project. On May 4, 2021, the City held a continued public hearing and adopted Resolution No. R -29-21 to uphold the appeal and deny the version of the Project approved by the Planning Commission (86 lots) but directed the Applicant to resubmit a revised subdivision design. ( Attachment 2 ) Shortly there after, the Applicant submitted two alternative designs - a revised 79 -lot alternative design and an 81 -lot alternative design. The alternatives were considered by the City Council on July 6, 2021. At the conclusion of the public hearing, the City Council adopted Resolution No. R -84-21 to deny both alternatives. (Attachment 2)

The Lawsuit

On July 28, 2021, the Applicant filed a lawsuit against the City alleging several causes of action including: (1) Violation of Housing Accountability Act (Government Co de §65589.5); (2) Violation of the Subdivision Map Act; (3) Inverse Condemnation (California Constitution Article 1, §19); and (4) Deprivation of Civil Rights (alleging violations of procedural and substantive due process, and a taking of property claim). The City was successful in knocking out the procedural and substantive due process portions of the civil rights claim, but the claims related to the Housing Accountability Act, Inverse Condemnation, Subdivision Map Act and takings claims remained. As a result, the lawsuit would continue.

Settlement Discussions, Settlement Agreement & Department of Housing & Community Development Investigation

As part of the lawsuit, the City and Applicant were preparing to attend a mandatory status conference with the co urt to discuss, among other things, briefing and the status of any settlement negotiations. Leading up to the date of the status conference, the City learned that the California Department of Housing & Community Development (HCD) was conducting an investigation concerning the City’s denial of the Project. In December of 2021, HCD notified the City that the City Council’s decision to overturn the Planning Commission’s approval of the Project was not supported by findings required by the Housing Accountabilit y Act (“HAA”) and that HCD intended to issue a Notice of Violation to the City under the authority of the HAA.

Although the City Council did make findings to deny the Project, these findings were not sufficient to satisfy the requirements of the HAA.

Meanwhile, the City Attorney and the Applicant had reached agreement on the parameters for a settlement agreement. A majority of the City Council provided direction in closed session to finalize the agreement with the following parameters:

1. Applicant would dismiss their lawsuit against the City;

2. Applicant would cap the recovery of their attorney fees at $50,000; and

3. Applicant would indemnify the City in accordance with the conditions of approval imposed on Planning Commission Resolution No. R-08-21.

1.1 Packet Pg. 10
Staff Report to the Mayor and City Council
Rescinding and Repealing Resolution Nos. R-29-21 and R-84-21 (Litton-Bostick Subdivision) April 19, 2022

The Mayor was authorized to execute the Settlement Agreement on behalf of the City, once finalized.1 Of course, the Settlement Agreement provides that dismissal of the lawsuit and benefits of the settlement agreement are contingent on the reinstatement and approval of the Project as approved by the Planning Commission (i.e. 86-lot clustered subdivision). If that does not happen, the Settlement Agreement is void. A copy of the original staff report describing this Project is attached.

ISSUES/ANALYSIS

As noted above, HCD concluded their investigation and provided the City a Notice of Violation (dated February 10, 2022) alleging the City violated the HAA when the City Council denied the Applicant’s Project. ( Attachment 6 ) The HAA is contained in Calif ornia Government Code, Section 65589.5 and establishes limitations to a local government’s ability to deny, reduce the density of, or make infeasible housing development projects, emergency shelters, or farmworker housing that are consistent with objective local development standards and contribute to meeting housing needs. The HAA was strengthened by the Legislature between 2017 and 2021 by clarifying certain requirements and definitions and authorizing HCD and the courts to enforce housing laws and impose significant penalties for non-compliance.

Specifically, the amendments now prohibit a local agency from denying a qualifying housing development unless the local agency makes certain strict findings. The inadequacy of these findings is the basis for HCD ’s determination that the City violated the HAA. Government Code, Section 65589.5(j)(1) provides that:

“When a proposed housing development project complies with applicable, objective general plan, zoning, and subdivision standards and criteria, includin g design review standards, in effect at the time that the application was deemed complete, but the local agency proposes to disapprove the project or to impose a condition that the project be developed at a lower density, the local agency shall base its de cision regarding the proposed housing development project upon written findings supported by a preponderance of the evidence on the record that both of the following conditions exist:
(i) The housing development project would have a specific, adverse impa ct upon the public health or safety unless the project is disapproved or approved upon the condition that the project be developed at a lower density2; and

1 The Settlement Agreement was finalized by both parties and executed last week. According to the Brown Act, if a city council gives approval to its legal counsel to settle pending litigation and accept a settlement offer, but the settlement agreement was not finalized on the date of the closed session because the other party has not finalized/signed the agreement, then no disclosure is required in open session, but disclosure can be made later to any person that requests it. (See California Government Code, Section 54957.1(a)(3)(B).) For purposes of the Brown Act, the terms of the Settlement Agreement are being made public here. 2 A “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 exis ted on the date the

1.1 Packet Pg. 11
Staff Report to the Mayor and City Council
Rescinding and Repealing Resolution Nos. R-29-21 and R-84-21 (Litton-Bostick Subdivision) April 19, 2022

(ii) There is no feasible method to satisfactorily mitigate or avoid the adverse impact, other than the disapproval of the housing development project or the approval of the project upon the condition that it be developed at a lower density.”3

While the Council resolutions denying the Applicant’s Projects made the findings for denial related to the appl ications filed, HCD alleges that the findings contained in the Resolutions do not meet the standards required in the HAA - i.e. that they were not based on objective, identified written public health or safety standards, policies, or conditions as they exi sted on the date the application was deemed complete. The lawsuit filed by the Applicant makes a similar argument.

A copy of the HCD Technical Memorandum explaining the requirements of the HAA is attached. (Attachment 5)
In fact, many cities have struggled with these new requirements. Traditional zoning codes contain elements of both objective criteria (for example - setbacks, height limits, density calculations) and subjective criteria (for example – consistency with General Plan policies, must not negati vely impact public health and safety). Cities often base project denials on the subjective criteria in their zoning and general plans. With respect to housing projects, such actions appear to be no longer possible.

Further, we also note that the City of C olton is not the first City to receive such a letter from HCD. HCD recently created an Accountability and Enforcement Unit to enforce many of the recently-enacted housing laws (in addition to the HAA), including the Accessory Dwelling Unit (ADU) law, SB 9 (by right subdivisions), and Housing Elements. A recent article detailing these efforts is attached. (Attachment 7)
HAA Remedies & Enforcement Options
In any event, one of the enforcement mechanisms available to HCD is the referral of violations that are not cured to the California Attorney General for the filing of a lawsuit seeking to compel enforcement. The HAA remedies are available to any plaintiff or the Attorney General. If the Applicant (or the Attorney General – if they file their own lawsuit) prevail in their HAA claim, the court must issue an order compelling compliance with the HAA within 60 days. The court’s order would at a minimum require the City to take action to approve Project during that time period. If the City fails to comply with t he order within 60 days of issuance, the court must impose a fine on the City. The minimum fine that may be imposed is $10,000 per housing unit in Project as proposed on the date the application was deemed complete. For this Project, that would amount to a fine of $890,000 ($10,000 x 89 units). The amounts can be increased by

application was deemed complete. Pursuant to Government Code section 65589.5 (a)(3) it is the intent of the Legislature that the conditions that would have a specific, adverse impact upon the public health and safety arise infrequently.

3 “Feasible” means capable of being accomplished in a successful manner within a reasonable period of time, taking into account economic, environmental, social, and technological factors.

1.1 Packet Pg. 12
Staff Report to the Mayor and City Council
Rescinding and Repealing Resolution Nos. R-29-21 and R-84-21 (Litton-Bostick Subdivision) April 19, 2022

$50,000 per unit in cases where the local agency acted in bad faith. The court is further empowered to issue an order or judgment that actually directs the local government to appro ve the housing development project if the court finds that the City is refusing to comply. The court will also award reasonable attorney fees and costs of the suit to the plaintiff.

ENVIRONMENTAL REVIEW

Pursuant to California Environmental Quality Act (CEQA), a draft Initial Study was prepared for the Project. The draft Initial Study determined that the Project would not create any significant adverse impacts on the environment, provided that the suggested mitigation measures are followed. Therefore, a Mitigated Negative Declaration and Mitigation Monitoring and Reporting Program was prepared for the Project and was adopted by the Planning Commission when it adopted Resolution No. R-08-21 approving the Project.

FISCAL IMPACTS

The current litigation costs to defend the City in this action amount to approximately $75,000.

Fiscal Impact if the City Council Does Not Rescind/Repeal the Prior Resolutions

If the City Council declines to adopt the Resolution to rescind and repeal the prior resolutions denying the Project and reinstating the Planning Commission’s approvals of the Project and the Applicant and/or Attorney General are successful with their HAA lawsuit, the City will be exposed to the following:

1. Attorney Fees: While the City’s current attorney fees are approximately $75,000, we have been informed by the Applicant that their fees are significantly greater. It is not known whether the Attorney General would pursue their own lawsuit.

However, if they do, we can expect similar exposure to th eir attorney fees if they prevail along with the Applicant.

2. HAA Penalties: If the Applicant/Attorney General are successful with their HAA lawsuits, and the City does not timely rescind/repeal the prior resolutions, the court may award fine amounts ba sed on $10,000 per unit or $890,000. While the February 10, 2022 letter from HCD caps the fine amounts at $100,000 per month, it is not clear that a court would be bound by this cap as such a cap is not contained in the language of the HAA. It is also po ssible that a court could determine that the City is acting in bad faith and calculate the fine amount at $50,000 per unit.

Fiscal Impact if the City Council V otes to Rescind/Repeal the Prior Resolutions

1.1 Packet Pg. 13
Staff Report to the Mayor and City Council
Rescinding and Repealing Resolution Nos. R-29-21 and R-84-21 (Litton-Bostick Subdivision) April 19, 2022

1. Settlement Agreement Costs . The settlement ag reement caps the City’s reimbursement of the Applicant’s attorney fees at $50,000 (total).

2. Staff/City Attorney Costs: There will be additional minimal costs to correspond with HCD to provide documentation that the Project was approved and that they should close out their investigation.

ALTERNATIVES

1. If the City Council adopts the Resolution to Rescind/Repeal the prior City Council resolutions from May 4, 2021 and July 6, 2021 and to reinstate the Planning Commission’s approval of the Project, the Settlement Agreement provides that the lawsuit will be dismissed and the attorney fees to be paid in settlement will be capped at $50,000. Staff and the City Attorney’s office will contact HCD to inform them and request they close out their investigation.

2. If the City Council declines to adopt the Resolution to Rescind/Repeal the prior resolutions and reinstate the Planning Commission’s approval of the Project, the lawsuit will continue and we will incur additional legal costs. If the City loses the la wsuit, the City would also be exposed to significant fines, and attorney fees and costs from both the Applicant and (possibly) the Attorney General. In addition, a court could award significant penalties as described above if the City does not comply with an order requiring the City to approve the Project. Further, if the court finds that the City violated the HAA and is delaying the approval or refusing to approve the Project, the court will have the authority to approve the Project without City Council action. However, forcing this option will be costly.

3. If the City Council declines to adopt the Resolution to Rescind/Repeal the prior resolutions and reinstate the approval of the Project, but the City successfully defends the litigation (and potentially any litigation filed by the Attorney General), the case will be subject to appeal and the City will continue to incur attorney fees pending the disposition of the appeal. An analysis of the strength of the City’s case has previously been provided to th e City Council in closed session.

ATTACHMENT

1. Attachment 1_City Council Resolution R-40-22

2. Attachment 2_Prior City Council Reso Nos R-29-21 and Reso No. R-84-21

3. Attachment 3_Approved P C Reso No. R-08-21

4. Attachment 4_Original Staff Report_Approved by Planning Commission

5. Attachment 5_HCD Technical Assistance Memo

6. Attachment 6_February 10, 2022 HCD Notice of Violation

7. Attachment 7 Article Re Attorney General Enforcement Efforts

1.1 Packet Pg. 14
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RESOLUTION NO. R-40-22

A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF

COLTON, RESCINDING AND REPEALING RESOLUTION
NOS. R -29-21 AND R -84-21 AND TO REINSTATE THE
COLTON PLANNING COMMISSION’S APPROVAL OF A

NEGATIVE DECLARATION AND MITIGATION

MONITORING AND REPORTING PROGRAM PURSUANT

TO THE CALIFORNIA ENVIRONMENTAL QUALITY ACT
(CEQA), A T ENTATIVE TRACT MAP (NO. 18233) AND

CONDITIONAL USE PERMIT TO ALLOW
DEVELOPMENT OF AN 86 - LOT C LUSTERED
SUBDIVISION ON PROPERTY LOCATED AT 300 WEST

LITTON AVENUE, WEST OF BOSTICK AVENUE, SOUTH

OF LITTON AVENUE AND NORTH OF PALM AVENUE
(ASSESSOR’S PARCEL NUMBERS: 0275 -071-15; 0275 -081-
01; 0275-081-02; & 0163-351-25)

WHEREAS, an application (File I ndex No. DAP 001 -378) was filed with the City of Colton, California for a (1) Tentative Tract Map No. 18233; and (2) Conditional Use Permit (CUP) for an 86 -lot hillside residential subdivision on a 49.39-acre property located south of Litton Avenue, west of Bostick Avenue and north of Palm Avenue (hereinafter “Subject Site”) zoned R- 1 (Low Density Residential) and VL (Very Low Density Residential); and

WHEREAS, on February 23, 2021, the Planning Commission of the City of Colton held a duly noticed public hearing (continued from January 26, 2021) at which time all persons wishing to testify in connection with the application were heard and the Application was comprehensively reviewed; and

WHEREAS, a staff report was prepared for the applications and the Planning Commission found it to be true, adopted as Findings and incorporated in a Resolution; and

WHEREAS, the Planning Commission, by a vote of 4-to-2, adopted Planning Commission Resolution No. R -08-21 approving the 86-lot design for File Index No. DAP 001 -378 and also adopting a Mitigated Negative Declaration and Mitigation Monitoring and Reporting Program pursuant to the California Environmental Quality Act (CEQA) (“Project”), ; and

WHEREAS, a timely Appeal (File Index No. DAP -001-689) was filed by a resident, on behalf of the La Loma Hills Alliance (“Appellant”) of the Planning Commission's action was received by the City Clerk (" Appeal") consistent with procedures contained in Section 18.58.100 of the Colton Municipal Code; and

WHEREAS, on April 6, 2021, the City Council of the City ("City Council") conducted a duly noticed public hearing on the Appeal at which time all persons wishing to testify in connection with the Appeal were heard, and the Appeal was comprehensively reviewed and considered; and

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Attachment: Attachment 1_City Council Resolution R-40-22 (3584 : Rescinding and Repealing Resolution Nos. R-29-21 and R-84-21 (Litton- 1 2
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Colton City Council
April 19, 2022

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WHEREAS, after continuing the duly noticed public hearing twice, on May 4, 2021, the City Council determined, that the Appeal should be granted and the application for Tentative Tract Map No. 18233 and Conditional Use Permit (DAP -001-378) should be denied (in part) for inconsistency with the City’s General Plan and Zoning Ordinance (City’s Hillside Development Ordinance), but the City Council retained jurisdiction over the Appeal and directed the Applicant to return with revisions to the design of the Project; and

WHEREAS, at the conclusion of the public hearing, the City Council adopted Resolution No. R-29-21 to deny the Project; and

WHEREAS, on July 6, 2021, the City Council conducted a duly noticed public hearing on the Project’s proposed alternative designs at which time all persons wishing to testify in connection with the Project were heard, and the Project was reviewed and considered; and

WHEREAS, at the conclusion of the public hearing, the City Council adopted Resolution No. R-84-21 to deny the two alternatives proposed by the Applicant for the Project.; and

WHEREAS, o n July 28, 2021, the Applicant filed a lawsuit against the City alleging several causes of action including: (1) Violation of Housing Accountability Act (Government Code §65589.5); (2) Violation of the Subdivision Map Act; (3) Inverse Condemnation (California Constitution Article 1, §19); and (4) Deprivation of Civil Rights (alleging violations of procedural and substantive due process, and a taking of property claim) and

WHEREAS, the City was successful in knocking out the procedural and substantive due process portions of the civil rights claim, but the claims related to the Housing Accountability Act.

Inverse Condemnation, Takings and Subdivision Map Act remained and the lawsuit continues; and

WHEREAS, as part of the lawsuit, the City was preparing to attend a status conference with the Court to discuss, among other things, briefing and the status of any settlement negotiations.

Leading up to the date of the status conference, the parties reached a settlement that provides the following parameters:

1. Applicant would dismiss their lawsuit;

2. Applicant would cap the recovery of their attorney fees at $50,000;

3. Applicant would indemnify the City in accordance with the conditions of approval adopted by the Planning Commission as part of Resolution No. R-08-21; and

WHEREAS, on February 10, 2022, the Cit y received a letter from the California Department of Housing & Community Development (HCD) informing that they had concluded an investigation and alleging the City violated the Housing Accountability Act (HAA) when the City Council denied the Applicant’s Project; and

WHEREAS, the Notice of Violation from HCD demands the City cure the violation; and

WHEREAS, as a result of the settlement agreement terms and the Notice of Violation, the City Council wishes to consider rescind and repeal the prior City Council resolutions from May 4, 2021 and July 6, 2021, denying the Project, and to reinstate the approval of the Project granted by

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Attachment: Attachment 1_City Council Resolution R-40-22 (3584 : Rescinding and Repealing Resolution Nos. R-29-21 and R-84-21 (Litton- 1 2
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Colton City Council
April 19, 2022

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the Planning Commission; and

WHEREAS, all other legal prerequisites to the adoption of this Resolution have occurred.

NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF COLTON:

SECTION 1. The Recitals set forth above are true and correct and are incorporated herein by reference.

SECTION 2. Based on the entire record and all written and oral evidence presented, including the staff report, administrative record, and all other written and oral evidence presented to the City for the Project the City Council hereby rescinds and repeals City Council Resolution Nos. R-29-21 and R-84-21 in their entirety and reinstates the Planning Commission’s approval of the Project as adopted in Planning Commission Resolution No. R-08-21, including the findings and conditions of approval adopted in connection therewith.

SECTION 3. The City Clerk shall certify to the adoption of this Resolution.

SECTION 4. This Resolution shall become effective immediately upon its adoption.

PASSED, APPROVED, AND ADOPTED this 19thth day of April, 2022.

___________________________________
Frank Navarro
Mayor

ATTEST:

__________________________________
Carolina R. Padilla
City Clerk

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Attachment: Attachment 1_City Council Resolution R-40-22 (3584 : Rescinding and Repealing Resolution Nos. R-29-21 and R-84-21 (Litton-

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Attachment: Attachment 2_Prior City Council Reso Nos R-29-21 and Reso No. R-84-21 [Revision 1] (3584 : Rescinding and Repealing

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Attachment: Attachment 2_Prior City Council Reso Nos R-29-21 and Reso No. R-84-21 [Revision 1] (3584 : Rescinding and Repealing

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Attachment: Attachment 2_Prior City Council Reso Nos R-29-21 and Reso No. R-84-21 [Revision 1] (3584 : Rescinding and Repealing

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Attachment: Attachment 2_Prior City Council Reso Nos R-29-21 and Reso No. R-84-21 [Revision 1] (3584 : Rescinding and Repealing

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Attachment: Attachment 2_Prior City Council Reso Nos R-29-21 and Reso No. R-84-21 [Revision 1] (3584 : Rescinding and Repealing

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Attachment: Attachment 2_Prior City Council Reso Nos R-29-21 and Reso No. R-84-21 [Revision 1] (3584 : Rescinding and Repealing

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Attachment: Attachment 2_Prior City Council Reso Nos R-29-21 and Reso No. R-84-21 [Revision 1] (3584 : Rescinding and Repealing

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Attachment: Attachment 2_Prior City Council Reso Nos R-29-21 and Reso No. R-84-21 [Revision 1] (3584 : Rescinding and Repealing

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Attachment: Attachment 2_Prior City Council Reso Nos R-29-21 and Reso No. R-84-21 [Revision 1] (3584 : Rescinding and Repealing

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Attachment: Attachment 2_Prior City Council Reso Nos R-29-21 and Reso No. R-84-21 [Revision 1] (3584 : Rescinding and Repealing 1 2
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29 30
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STATE OF CALIFORNIA )
COUNTY OF SAN BERNARDINO ) ss

CITY OF COLTON )

CERTIFICATION
I, CAROLINA R. PADILLA, City Clerk of the City of Colton, California, do hereby certify that the foregoing is a full, true and correct copy of RESOLUTION NO.

R- 84- 21, duly adopted by the City Council of said City, and approved by the Mayor of said City, at its Regular Meeting of said City Council held on the 8thday of July 2021, and that it was adopted by the following vote, to wit:

AYES: COUNCILMEMBER Toro, Cisneros, González,
Echevarria,
NOES: COUNCILMEMBER Mayor Navarro, Koperski
ABSTAIN: COUNCILMEMBER None
ABSENT: COUNCILMEMBER Suchil
IN WITNESS WHEREOF, I have hereunto set my hand and affixed the official sealof the City of Colton, California, this _____ day of _ ,20 .

CAROLINA R. PADILLA
City Clerk
City of Colton
SEAL)

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Attachment: Attachment 2_Prior City Council Reso Nos R-29-21 and Reso No. R-84-21 [Revision 1] (3584 : Rescinding and Repealing

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Attachment: Attachment 3_Approved P C Reso No. R-08-21 [Revision 1] (3584 : Rescinding and Repealing Resolution Nos. R-29-21 and R-84-21

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Attachment: Attachment 3_Approved P C Reso No. R-08-21 [Revision 1] (3584 : Rescinding and Repealing Resolution Nos. R-29-21 and R-84-21

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Attachment: Attachment 3_Approved P C Reso No. R-08-21 [Revision 1] (3584 : Rescinding and Repealing Resolution Nos. R-29-21 and R-84-21

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Attachment: Attachment 3_Approved P C Reso No. R-08-21 [Revision 1] (3584 : Rescinding and Repealing Resolution Nos. R-29-21 and R-84-21

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Attachment: Attachment 3_Approved P C Reso No. R-08-21 [Revision 1] (3584 : Rescinding and Repealing Resolution Nos. R-29-21 and R-84-21

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Attachment: Attachment 3_Approved P C Reso No. R-08-21 [Revision 1] (3584 : Rescinding and Repealing Resolution Nos. R-29-21 and R-84-21

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Attachment: Attachment 3_Approved P C Reso No. R-08-21 [Revision 1] (3584 : Rescinding and Repealing Resolution Nos. R-29-21 and R-84-21

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Attachment: Attachment 3_Approved P C Reso No. R-08-21 [Revision 1] (3584 : Rescinding and Repealing Resolution Nos. R-29-21 and R-84-21

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Attachment: Attachment 3_Approved P C Reso No. R-08-21 [Revision 1] (3584 : Rescinding and Repealing Resolution Nos. R-29-21 and R-84-21

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Attachment: Attachment 3_Approved P C Reso No. R-08-21 [Revision 1] (3584 : Rescinding and Repealing Resolution Nos. R-29-21 and R-84-21

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Attachment: Attachment 3_Approved P C Reso No. R-08-21 [Revision 1] (3584 : Rescinding and Repealing Resolution Nos. R-29-21 and R-84-21

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Attachment: Attachment 3_Approved P C Reso No. R-08-21 [Revision 1] (3584 : Rescinding and Repealing Resolution Nos. R-29-21 and R-84-21

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Attachment: Attachment 3_Approved P C Reso No. R-08-21 [Revision 1] (3584 : Rescinding and Repealing Resolution Nos. R-29-21 and R-84-21

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Attachment: Attachment 3_Approved P C Reso No. R-08-21 [Revision 1] (3584 : Rescinding and Repealing Resolution Nos. R-29-21 and R-84-21

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Attachment: Attachment 3_Approved P C Reso No. R-08-21 [Revision 1] (3584 : Rescinding and Repealing Resolution Nos. R-29-21 and R-84-21

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Attachment: Attachment 3_Approved P C Reso No. R-08-21 [Revision 1] (3584 : Rescinding and Repealing Resolution Nos. R-29-21 and R-84-21

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Attachment: Attachment 3_Approved P C Reso No. R-08-21 [Revision 1] (3584 : Rescinding and Repealing Resolution Nos. R-29-21 and R-84-21

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Attachment: Attachment 3_Approved P C Reso No. R-08-21 [Revision 1] (3584 : Rescinding and Repealing Resolution Nos. R-29-21 and R-84-21

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Attachment: Attachment 3_Approved P C Reso No. R-08-21 [Revision 1] (3584 : Rescinding and Repealing Resolution Nos. R-29-21 and R-84-21

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Attachment: Attachment 3_Approved P C Reso No. R-08-21 [Revision 1] (3584 : Rescinding and Repealing Resolution Nos. R-29-21 and R-84-21

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Attachment: Attachment 3_Approved P C Reso No. R-08-21 [Revision 1] (3584 : Rescinding and Repealing Resolution Nos. R-29-21 and R-84-21

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Attachment: Attachment 3_Approved P C Reso No. R-08-21 [Revision 1] (3584 : Rescinding and Repealing Resolution Nos. R-29-21 and R-84-21

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Attachment: Attachment 3_Approved P C Reso No. R-08-21 [Revision 1] (3584 : Rescinding and Repealing Resolution Nos. R-29-21 and R-84-21

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Attachment: Attachment 4_Original Staff Report_Approved by Planning Commission [Revision 1] (3584 : Rescinding and Repealing Resolution

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Attachment: Attachment 4_Original Staff Report_Approved by Planning Commission [Revision 1] (3584 : Rescinding and Repealing Resolution

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Attachment: Attachment 4_Original Staff Report_Approved by Planning Commission [Revision 1] (3584 : Rescinding and Repealing Resolution STATE OF CALIFORNIA - BUSINESS, CONSUMER SERVICES AND HOUSING AGENCY GAVIN NEWSOM, Governor

DEPARTMENT OF HOUSING AND COMMUNITY DEVELOPMENT

DIVISION OF HOUSING POLICY DEVELOPMENT
2020 W. El Camino Avenue, Suite 500
Sacramento, CA 95833
(916) 263-2911 / FAX (916) 263-7453
www.hcd.ca.gov
September 15, 2020
MEMORANDUM FOR: Planning Directors and Interested Parties FROM: Megan Kirkeby, Deputy Director
Division of Housing Policy Development
SUBJECT: Housing Accountability Act Technical Assistance Advisory (Government Code Section 65589.5)
The Housin
g Accountability Act (HAA), Government Code section 65589.5, establishes limitations to a local government’s ability to deny, reduce the density of, or make infeasible housing development projects, emergency shelters, or farmworker housing that are consistent with objective local development standards and contribute to meeting housing need. The Legislature first enacted the HAA in 1982 and recently amended the HAA to expand and strengthen its provisions as part of the overall recognition of the critically low volumes of housing stock in California. In amending the HAA, the Legislature made repeated findings that the lack of housing and the lack of affordable housing, is a critical problem that threatens the economic, environmental, and social quality of life in California. This Technical Assistance Advisory provides guidance on implementation of the HAA, including the following amendments.

Chapter 368, Statutes of 2017 (Senate Bill 167), Chapter 373, Statutes of 2017 (Assembly Bill 678) - Strengthens the HAA by increasing the documentation necessary and the standard of proof required for a local agency to legally defend its denial of low- to-moderate-income housing development projects, and requiring courts to impose a fine of $10,000 or more per unit on local agencies that fail to legally defend their rejection of an affordable housing development project.

Chapter 378, Statutes of 2017 (Assembly Bill 1515) – Establishes a reasonable person standard for determining conformance with local land use requirements.

Chapter 243, Statutes of 2018 (Assembly Bill 3194) -Expands the meaning of zoning consistency to include projects that are consistent with general plan designations but not zoning designation on a site if that zone is inconsistent with the general plan.

Chapter 654, Statutes of 2019 (Senate Bill 330) - Defined previously undefined terms such as objective standards and complete application and set forth vesting rights for projects that use a new pre-application process. Most of these provisions sunset on January 1, 2025, unless extended by the Legislature and Governor.

If you have any questions, or would like additional information or technical assistance, please contact the Division of Housing Policy Development at (916) 263-2911.

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Attachment: Attachment 5_HCD Technical Assistance Memo [Revision 1] (3584 : Rescinding and Repealing Resolution Nos. R-29-21 and R-84- Table of Contents
Table of Contents
What is the Housing Accountability Act? ............................................................................... 1 Why Do We Need the Housing Accountability Act? .............................................................. 2 Housing Accountability Act Decision Matrix ......................................................................... 4 Key Provisions of the Housing Accountability Act ............................................................... 5 Housing Development Project Qualifications ....................................................................... 5 Housing Development Project Definition ......................................................................... 6

Housing for Very Low, Low-, or Moderate-Income Households ...................................... 6 Housing Developments Applying for the Streamlined Ministerial Approval Process Pursuant to Government Code Section 65913.4. ........................................................... 6 Applicability of Local Standards ........................................................................................... 7 Objective Development Standards, Conditions, Policies, Fees, and Exactions .............. 7 Determination of Application Completeness ................................................................... 8

Triggers for a Disapproval of a Housing Development Project........................................ 9 Imposition of Development Conditions .......................................................................... 10 Housing Accountability Act Provisions That Apply to All Housing Projects ........................ 11 Determination of Consistency with Applicable Plans, Standards, or Other Similar Provision Based on the Reasonable Person Standard ................................................. 11 Applicability of Density Bonus Law ............................................................................... 11 General Plan and Zoning Consistency Standard .......................................................... 11

Written Notification of Inconsistency ............................................................................. 12 Denial of a Housing Project that is Consistent with Applicable Plans, Standards, or Other Similar Provisions Based on the Preponderance of the Evidence Standard ....... 13 Provisions Related to Housing Affordable to Very Low-, Low-, or Moderate-Income Household, Emergency Shelters, and Farmworker Housing .............................................. 14 Denial or Conditioning of Housing Affordable to Very Low-, Low- or Moderate-Income Households, Including Farmworker Housing, or Emergency Shelters .......................... 14 Violations of Housing Accountability Act ............................................................................ 15 Eligible Plaintiffs and Petitioners ................................................................................... 16

“Housing organizations” ................................................................................................ 16 Remedies ...................................................................................................................... 16

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Attachment: Attachment 5_HCD Technical Assistance Memo [Revision 1] (3584 : Rescinding and Repealing Resolution Nos. R-29-21 and R-84- Table of Contents
Housing Accountability Act Technical Assistance Advisory Appeals ......................................................................................................................... 16 Failure to Comply with Court Order ............................................................................... 17 APPENDIX A: Frequently Asked Questions ......................................................................... 18 What types of housing development project applications are subject to the Housing Accountability Act (HAA)? .................................................................................................. 18 Does the Housing Accountability Act apply to charter cities? ............................................. 18 Does the Housing Accountability Act apply to housing development projects in coastal zones? ................................................................................................................................ 18 Are housing developments still subject to the California Environmental Quality Act (CEQA) if they qualify for the protections under the Housing Accountability Act? ........................... 18 Does the California Department of Housing and Community Development have enforcement authority for the Housing Accountability Act? ................................................ 18 If approval of a housing development project triggers the No-Net Loss Law, may a local government disapprove the project? .................................................................................. 18 Does the Housing Accountability Act apply to a residential development project on an historic property? ................................................................................................................ 18 Under the Housing Accountability Act, is the retail/commercial component of a mixed-use project subject to review when the housing component must be approved? ...................... 19 Does the Housing Accountability Act apply to subdivision maps and other discretionary land use applications?................................................................................................................ 19 Does the Housing Accountability Act apply to applications for individual single-family residences or individual Accessory Dwelling Units (ADUs)? .............................................. 19 Does the Housing Accountability Act apply to an application that includes both a single- family residence and an Accessory Dwelling Unit? ............................................................ 19

Does the Housing Accountability Act apply to an application for a duplex? ....................... 19 Does the Housing Accountability Act apply to market-rate housing developments? .......... 19 Under the Housing Accountability Act, if a housing development project is consistent with local planning rules, can it be denied or conditioned on a density reduction? .................... 20 Under the Housing Accountability Act, can a housing development project affordable to very low-, low-, or moderate-income households (including farmworker housing) or emergency shelter that is inconsistent with local planning requirements be denied or conditioned in a manner that renders it infeasible for the use proposed? .......................... 20 Is there a definition for “specific, adverse impact” upon public health and safety? ............. 20 APPENDIX B: Definitions ....................................................................................................... 21 Appendix C: Preliminary Application (Senate Bill 330, Statutes of 2019) .......................... 23

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Attachment: Attachment 5_HCD Technical Assistance Memo [Revision 1] (3584 : Rescinding and Repealing Resolution Nos. R-29-21 and R-84- Table of Contents
Housing Accountability Act Technical Assistance Advisory Benefits of a Preliminary Application .................................................................................. 23

Contents of a Preliminary Application................................................................................. 24 Timing Provisions from Filing of a Preliminary Application to Determination of Consistency with Applicable Standards under the Housing Accountability Act ....................................... 26 Step 1: Preliminary Application Submittal GC 65941.1 ................................................. 26 Step 2: Full Application Submittal ................................................................................. 26 Step 3: Determination of Application Completeness GC 65943 .................................... 26

Step 4: Application Consistency with Standards (HAA) GC 65589.5 ............................ 26 Step 5: Other Entitlement Process Requirements Pursuant to SB 330 ......................... 27 Appendix D: Housing Accountability Act Statute (2020) .................................................... 28

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Attachment: Attachment 5_HCD Technical Assistance Memo [Revision 1] (3584 : Rescinding and Repealing Resolution Nos. R-29-21 and R-84- What is the Housing Accountability Act?

Housing Accountability Act Technical Assistance Advisory 1 What is the Housing Accountability Act?
The Housing Accountability Act (HAA) (Government Code Section 65589.5), establishes the state’s overarching policy that a local government may not deny, reduce the density of, or make infeasible housing development projects, emergency shelters, or farmworker housing that are consistent with objective local development standards. Before doing any of those things, local governments must make specified written findings based upon a preponderance of the evidence that a specific, adverse health or safety impact exists. Legislative intent language indicates that the conditions that would give rise to such a specific, adverse impact upon the public health and safety would occur infrequently.

Subdivision (d) of the HAA describes requirements applicable to housing development projects that include units affordable to very- low, low- and moderate-income households (including transitional and supportive housing) as well as emergency shelters and farmworker housing.

Subdivision (j) describes requirements applicable to all housing development projects, including both market-rate and affordable housing developments. Subdivisions (k), (l), and (m) expand the potential consequences for violations of the HAA. In 2017, the Legislature also granted the California Department of Housing and Community Development (HCD) authority to refer HAA violations to the Office of the Attorney General in Government Code section 65585.

The HAA was originally enacted in 1982 to address local opposition to growth and change.

Communities resisted new housing, especially affordable housing, and, consequently, multiple levels of discretionary review often prevented or delayed development. As a result, developers had difficulty ascertaining the type, quantity, and location where development would be approved. The HAA was intended to overcome the lack of certainty developers experienced by limiting local governments’ ability to deny, make infeasible, or reduce the density of housing development projects.

Recognizing that the HAA was falling short of its intended goal, in 2017, 2018, and again in 2019, the Legislature amended the HAA no less than seven times to expand and strengthen its provisions. Key restrictions on local governments’ ability to take action against housing development projects are set out in Government Code section 65589.5, subdivisions (d) and (j).

The law was amended by Chapter 368 Statutes of 2017 (Senate Bill 167), Chapter 373 Statutes of 2017 (Assembly Bill 678) and Chapter 378 Statutes of 2017 (Assembly Bill 1515), as part of the California 2017 Housing Package. The law was further amended by Chapter 243, Statutes of 2018 (Assembly Bill 3194) and Chapter 654, Statutes of 2019 (Senate Bill 330).

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Attachment: Attachment 5_HCD Technical Assistance Memo [Revision 1] (3584 : Rescinding and Repealing Resolution Nos. R-29-21 and R-84- Why Do We Need the Housing Accountability Act?
Housing Accountability Act Technical Assistance Advisory 2 Why Do We Need the Housing Accountability Act?
The Housing Accountability Act has been in effect since 1982. Since that time, California’s housing supply has not kept up with population and job growth, and the affordability crisis has grown significantly due to an undersupply of housing, which compounds inequality and limits economic and social mobility. Housing is a fundamental component of a healthy, equitable community. Lack of adequate housing hurts millions of Californians, stifles economic opportunities for workers and businesses, worsens poverty and homelessness, and undermines the state’s environmental and climate goals and compounds the racial equity gaps faced by many communities across the state.

The legislative intent of the HAA was to limit local governments’ ability to deny, make infeasible, or reduce the density of housing development projects. After determining that implementation of the HAA was not meeting the intent of the statute, the Legislature has amended the HAA to expand its provisions, strengthening the law to meaningfully and effectively curb the capacity of local governments to deny, reduce the density or render housing development projects infeasible.

Legislative Housing Accountability Act Interpretation Guidance “It is the policy of the state that this section (HAA) should be interpreted and implemented in a manner to afford the fullest possible weight to the interest of, and the approval and provision of, housing.” Government Code Section 65589.5 (a)(2)(L)
The following are findings and declarations found in the HAA pursuant to Government Code sections 65589.5(a):
• The lack of housing, including emergency shelters, is a critical problem that threatens the economic, environmental, and social quality of life in California. • California housing has become the most expensive in the nation. The excessive cost of the state’s housing supply is partially caused by activities and policies of many local governments that limit the approval of housing, increase the cost of land for housing, and require that high fees and exactions be paid by producers of housing. • 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. • Many local governments do not give adequate attention to the economic, environmental, and social costs of decisions that result in disapproval of housing development projects, reduction in density of housing projects, and excessive standards for housing development projects.
• 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.

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Attachment: Attachment 5_HCD Technical Assistance Memo [Revision 1] (3584 : Rescinding and Repealing Resolution Nos. R-29-21 and R-84- Why Do We Need the Housing Accountability Act?
Housing Accountability Act Technical Assistance Advisory 3 • While the causes of this crisis are multiple and complex, the absence of meaningful and effective policy reforms to significantly enhance the approval and supply of housing affordable to Californians of all income levels is a key factor. • The crisis has grown so acute in California that supply, demand, and affordability fundamentals are characterized in the negative: underserved demands, constrained supply, and protracted unaffordability.
• According to reports and data, California has accumulated an unmet housing backlog of nearly 2,000,000 units and must provide for at least 180,000 new units annually to keep pace with growth through 2025.
• California’s overall homeownership rate is at its lowest level since the 1940s. The state ranks 49th out of the 50 states in homeownership rates as well as in the supply of housing per capita. Only one-half of California’s households are able to afford the cost of housing in their local regions.
• Lack of supply and rising costs are compounding inequality and limiting advancement opportunities for many Californians.
• The majority of California renters, more than 3,000,000 households, pay more than 30 percent of their income toward rent and nearly one-third, more than 1,500,000 households, pay more than 50 percent of their income toward rent.
• When Californians have access to safe and affordable housing, they have more money for food and health care; they are less likely to become homeless and in need of government- subsidized services; their children do better in school; and businesses have an easier time recruiting and retaining employees.
• An additional consequence of the state’s cumulative housing shortage is a significant increase in greenhouse gas emissions caused by the displacement and redirection of populations to states with greater housing opportunities, particularly working- and middle- class households. California’s cumulative housing shortfall therefore has not only national but international environmental consequences.
• California’s housing picture has reached a crisis of historic proportions despite the fact that, for decades, the Legislature has enacted numerous statutes intended to significantly increase the approval, development, and affordability of housing for all income levels, including this section.

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Attachment: Attachment 5_HCD Technical Assistance Memo [Revision 1] (3584 : Rescinding and Repealing Resolution Nos. R-29-21 and R-84- Housing Accountability Act Decision Matrix
Housing Accountability Act Technical Assistance Advisory 4 Housing Accountability Act Decision Matrix
This decision tree generally describes the components of the HAA. Both affordable and market-rate developments are protected by components of the HAA. The statute contains detailed requirements that affect the applicability of the HAA to a specific housing project based on its characteristics.

A) Does the project meet the definition of a housing development? YES
NO: HAA does not apply
B) Are 20% of the total units affordable to very low- or low-income households, 100% affordable to moderate or middle income households, or an emergency shelter? YES, Subdivision (d) applies
Does one of the following findings apply?
(1) Housing element is in compliance, RHNA has been
met (permitted) or exceeded for all income categories
proposed for project.
(2) Project has a specific, adverse impact upon the
public health or safety, and there is no feasible method to mitigate or avoid impact.
(3) Denial is required to comply with specific state or federal law, and there is no feasible method to comply. (4) The project is proposed on land zoned for agriculture or inadequate water or sewer.
(5) The project is inconsistent with both zoning and
general plan land use designation, and the project is not proposed on a site identified in the housing element, and there are sufficient sites to accommodate the RHNA or
zoning for emergency shelters.

Yes
Make finding and
move to C).

NO
Project cannot be denied
w/o potential HAA
violation.

NO, Subdivision (j) applies
C) Is the project consistent with objective general plan, zoning, subdivision, and design standards and criteria? YES
Is there a specific, adverse
impact upon the public
health or safety? and
Is there no feasible method
to satisfactorily mitigate or
avoid the adverse impact?
YES
Can make
written
findings to
deny project
or condition
approval at
lower-density.

NO
The project
cannot be
denied w/o
potential HAA
violation.

NO
Does the project meet general
plan standards but zoning is
inconsistent with general plan?
YES
The project is
consistent
with zoning.

NO
Provide written
documentation
of
inconsistency.

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Attachment: Attachment 5_HCD Technical Assistance Memo [Revision 1] (3584 : Rescinding and Key Provisions of the Housing Accountability Act

Housing Accountability Act Technical Assistance Advisory 5 Key Provisions of the Housing Accountability Act
The HAA sets out restrictions on local governments’ ability to take action against housing development projects in Government Code section 65589.5, subdivisions (d) and (j).

Subdivision (d) describes requirements applicable to housing development projects that include units affordable to very-low, low-, and moderate-income households (including transitional and supportive housing) as well as emergency shelters and farmworker housing. Subdivision (j) describes requirements applicable to all housing development projects, including both market- rate and affordable housing developments1. In sum, the HAA significantly limits the ability of a local government to deny an affordable or market-rate housing project that is consistent with planning and zoning requirements. This table describes the various component parts of the HAA for ease of reference.

Topic Subdivisions of Government
Code Section 65589.5
Declarations and legislative intent (a), (b), (c)
Provisions for housing affordable to very low, low-, or moderate-income households, or an emergency shelter
(d), (i)
Applicability of the statute to coastal zones, local laws, and charter cities
(e), (f), (g)
Definitions (h)
Provisions relating to all housing developments (j)
Consequences for violation (k), (l), (m), (n)
Vesting rights for pre-applications (SB 330) (o)
The following is an overview of key provisions of the HAA focusing on project qualifications, applicability of local standards, provisions that relate to all housing projects, provisions that relate just to housing affordable to lower- and moderate-income households and emergency shelters, and consequences for violation of the HAA. Appendix A includes a list of definitions of terms referenced throughout the HAA and Appendix B includes information related to the Preliminary Application Process pursuant to Senate Bill 330.

Housing Development Project Qualifications
In order for a development to qualify for the protections under the HAA it must meet the definition of a “housing development project”. Furthermore, for a project to qualify for the affordable housing protections, it must also meet the definition of “Housing for very low-, low-, or moderate-income households”.

1 Honchariw v. County of Stanislaus (2011) 200 Cal.App.4th 1066, 1072-1073

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Housing Accountability Act Technical Assistance Advisory 6 Housing Development Project Definition
Government Code, § 65589.5, subdivision (h)(2).

A “housing development project” means a use consisting of residential units only, mixed use developments consisting of residential and non-residential uses with at least two-thirds of the square footage designated for residential use, or transitional or supportive housing. Because the term “units” is plural, a development must consist of more than one unit to qualify under the HAA. The development can consist of attached or detached units and may occupy more than one parcel, so long as the development is included in the same development application.

Housing for Very Low, Low-, or Moderate-Income Households Government Code, § 65589.5, subdivision (h)(3).

In order to qualify as a housing development affordable to lower- or moderate- income households, the project must meet one of the following two criteria:
• At least 20 percent of the total units shall be sold or rented to lower income households.

Lower-income households are those persons and families whose income does not exceed that specified by Health and Safety Code, § 50079.5, 80 percent of area median income. • 100 percent of the units shall be sold or rented to persons and families of moderate income, or persons and families of middle income. Moderate-income households are those persons and families whose incomes are 80 percent to 120 percent of area median income (Health and Safety Code, § 50093.) Middle-income households are those persons and families whose income does not exceed 150 percent of area median income (Gov. Code, § 65008 subd. (c).)
In addition, the rental or sales prices of that housing cannot exceed the following standards:
• Housing units targeted for lower income households shall be made available at a monthly housing cost that does not exceed 30 percent of 60 percent of area median income with adjustments for household size made in accordance with the adjustment factors on which the lower income eligibility limits are based.
• Housing units targeted for persons and families of moderate income shall be made available at a monthly housing cost that does not exceed 30 percent of 100 percent of area median income with adjustments for household size made in accordance with the adjustment factors on which the moderate-income eligibility limits are based.

Housing Developments Applying for the Streamlined Ministerial Approval Process Pursuant to Government Code Section 65913.4.

To facilitate and expedite the construction of housing, Chapter 366, Statutes of 2017 (SB 35, Wiener) established the availability of a Streamlined Ministerial Approval Process for developments in localities that have not yet made sufficient progress towards their allocation of the regional housing need (RHNA). Recent amendments to the law clarified that projects utilizing the Streamlined Ministerial Approval Process qualify for the protections under the HAA (Gov. Code, § 65913.4, subd. (g)(2).)

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Attachment: Attachment 5_HCD Technical Assistance Memo [Revision 1] (3584 : Rescinding and Repealing Resolution Nos. R-29-21 and R-84- Key Provisions of the Housing Accountability Act

Housing Accountability Act Technical Assistance Advisory 7 Applicability of Local Standards
In addition to limiting the conditions for which a housing development project can be denied, the HAA also sets parameters around aspects of the approval process. Specifically, it defines:
• T he type of development standards, conditions, and policies with which a housing development or emergency shelter can be required to comply • P arameters for fees and exactions that can be imposed • S tandards that can be applied once an application is deemed complete • A ctions by a local government that would constitute a denial of a project or impose development conditions
These requirements are intended to provide developers with greater transparency and clarity in the entitlement process.

Objective Development Standards, Conditions, Policies, Fees, and Exactions Government Code, § 65589.5, subdivision (f)
Local governments are not prohibited from requiring a housing development project or emergency shelter to comply with objective, quantifiable, written development standards, conditions, and policies (subject to the vesting provisions of the HAA and other applicable laws). However, those standards, conditions, and policies must meet the following criteria:
• Be appropriate to, and consistent with, meeting the local government’s share of the RHNA or meeting the local government’s need for emergency shelters as identified in the housing element of the general plan.
• B e applied to facilitate and accommodate development at the density permitted on the site and proposed by the development or to facilitate and accommodate the development of the emergency shelter project.
• Meet the definition of “objective”. Objective standards are those that involve 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.

The intent of these provisions of the HAA is that developers are given certainty in what standards, conditions, and policies apply to their project and how those standards can be met.

Local governments that deny a project due to a failure to meet subjective standards (those standards that are not objective as defined) could be in violation of the HAA. In addition, objective standards that do apply should make it feasible for a developer to build to the density allowed by the zoning and not constrain a local government’s ability to achieve its RHNA housing targets.

Nothing in the statute generally prohibits a local government from imposing fees and other exactions otherwise authorized by law that are essential to provide necessary public services and facilities to the housing development project or emergency shelter. However, the HAA does impose limitations on the fees and exactions that can be imposed on a specific housing development project once a preliminary application is submitted (see Appendix C).

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Housing Accountability Act Technical Assistance Advisory 8 Determination of Application Completeness
Government Code, § 65589.5, subdivisions (d)(5), (h)(5) and (9), and (j)(1).

The process of submitting an application for a housing development project can be iterative. For example, applications that are missing information cannot be fully evaluated by a local government for compliance with local objective standards. Therefore, an application is not typically processed until it is “determined to be complete”. The HAA currently uses two terms related to completeness, “deemed complete” and “determined to be complete.” Deemed Complete: For the purposes of the HAA, until January 1, 2025, “deemed complete” means the date on which a preliminary application was submitted under the provisions of Government Code section 65941.1. Submittal of a preliminary application allows a developer to provide a specific subset of information on the proposed housing development before providing the full information required by the local government for a housing development application.

Submittal of this information allows a housing developer to “freeze” the applicable standards for their project while they assemble the rest of the material necessary for a full application submittal. This ensures development requirements do not change during this time, potentially adding costs to a project. No affirmative determination by a local government regarding the completeness of a preliminary application is required. (See Appendix C).

The term “deemed complete” triggers the “freeze date” for applicable development standards, criteria, or condition that can be applied to a project. Changes to the zoning ordinance, general plan land use designation, standards, and criteria, subdivision ordinance, and design review standards, made subsequent to the date the housing development project preliminary application was "deemed complete", cannot be applied to a housing development project or used to disapprove or condition approval of the project.

However, if the developer does not submit a preliminary application, the standards that must be applied are those that are in effect when the project is determined to be complete under the Permit Streamlining Act (Gov. Code § 65943).

Determined to be complete: Until January 1, 2025, the full application is "determined to be complete" when it is found to be complete under the Permit Streamlining Act (Gov. Code § 65943). This phrase triggers the timing provisions for the local government to provide written documentation of inconsistency with any applicable plan, program, policy, ordinance, standard, requirement, or other similar provision (see page 10 below for inconsistency determinations).

Completeness Determination of Development Application
Government Code section 65943 states that local governments have 30 days after an application for a housing development project is submitted to inform the applicant whether or not the application is complete. If the local government does not inform the applicant of any deficiencies within that 30-day period, the application will be "deemed complete", even if it is deficient.

If the application is determined to be incomplete, the local government shall provide the applicant with an exhaustive list of items that were not complete pursuant to the local government’s submittal requirement checklist. Information not included in the initial list of deficiencies in the application cannot be requested in subsequent reviews of the application.

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Housing Accountability Act Technical Assistance Advisory 9 A development applicant who submitted a preliminary application has 90 days to complete the application after receiving notice that the application is incomplete, or the preliminary application will expire. Each time an applicant resubmits new information, a local government has 30 calendar days to review the submittal materials and to identify deficiencies in the application.

Please note, Government Code section 65943 is triggered by an application submitted with all of the requirements on lists compiled by the local government and available when the application was submitted that specifies in detail the information that will be required from any applicant for a development project pursuant to Government Code section 65940. This is not the “preliminary application” referenced in Government Code section 65941.1.

Triggers for a Disapproval of a Housing Development Project Government Code, § 65589.5, subdivisions (h)(6)
The HAA does not prohibit a local government from exercising its authority to disapprove a housing development project, but rather provides limitations and conditions for exercising that authority. The HAA defines disapproval as when the local government takes one of the following actions:
• Votes on a proposed housing development project application and the application is disapproved. This includes denial of other required land use approvals or entitlements necessary for the issuance of a building permit. Examples include, but are not limited to, denial of the development application, tentative or final maps, use permits, or design review.

If the project is using the Streamlined Ministerial Approval Process, disapproval of the application would trigger the provisions of the HAA.
• Fails to comply with decision time periods for approval or disapproval of a development application2. Until 2025, the following timeframes apply:
o 90 days after certification of an environmental impact report (prepared pursuant to the California Environmental Quality Act) by the lead agency for a housing development project.
o 60 days after certification of an environmental impact report (prepared pursuant to the California Environmental Quality Act) by the lead agency for a housing development project where at least 49 percent of the units in the development project are affordable to very low or low-income households3, and where rents for the lower income units are set at an affordable rent4 for at least 30 years and owner-occupied units are available at an affordable housing cost5, among other conditions (see Gov Code § 65950). o 60 days from the date of adoption by the lead agency of a negative declaration. o 60 days from the determination by the lead agency that the project is exempt from the California Environmental Quality Act.

2 Timeframes are pursuant to Government Code section 65950 3 As defined by Health and Safety Code sections 50105 and 50079.5 4 Pursuant to Section 50053 of the Health and Safety Code 5 Pursuant to Section 50052.5 of the Health and Safety Code

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Housing Accountability Act Technical Assistance Advisory 10 Imposition of Development Conditions
Government Code, § 65589.5, subdivisions. (d), (h)(7), and (i) Like the ability to deny a project, the HAA does not prohibit a local government from exercising its authority to condition the approval of a project, but rather provides limitations and conditions for the application of certain conditions. Specifically, the HAA limits the application of conditions that lower the residential density of the project, and, for housing affordable to lower- and moderate-income households and emergency shelters, conditions that would have a substantial adverse impact on the viability or affordability of providing those units unless specific findings are made and supported by a preponderance of the evidence in the record6.

For purposes of the HAA, “lower density” includes any conditions that have the same effect or impact on the ability of the project to provide housing. This could include a condition that directly lowers the overall number of units proposed (e.g., the development proposes 50 units, but the local government approves only 45 units). It could also include indirect conditions that result in a lower density (e.g., a development proposes 50 units at 800 square feet per unit but the local government conditions the approval on the provision of 850 square feet per unit, resulting in the project having to provide fewer units to accommodate the increase in square footage). Another example would be a reduction in building height that would result in the project being able to provide fewer units than originally proposed.

Local governments must also consider if imposed conditions of approval would have an adverse effect on a project’s ability to provide housing for very low-, low-, or moderate-Income households at the affordability levels proposed in the housing development project. This includes provisions that would render the project for very low-, low-, or moderate-income households infeasible or would have a substantial adverse effect on the viability or affordability of the proposed housing. For example, project approval for an affordable housing development might be conditioned on the need to use specific materials that significantly increase the cost of the project. This additional cost could either render the project financially infeasible altogether or require substantial changes to the affordability mix of the units where fewer very low-income units could be provided. In these cases, it is possible that the conditions would violate the HAA.

Conditions that should be analyzed for their effect on density and project feasibility (for affordable projects) include, but are not limited to, the following:
• D esign changes
• Conditions that directly or indirectly lower density
• R eduction of the percentage of a lot that may be occupied by a building or structure under the applicable planning and zoning.

6 See Page13 for more information on the preponderance of the evidence standard.

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Attachment: Attachment 5_HCD Technical Assistance Memo [Revision 1] (3584 : Rescinding and Repealing Resolution Nos. R-29-21 and R-84- Key Provisions of the Housing Accountability Act

Housing Accountability Act Technical Assistance Advisory 11 Housing Accountability Act Provisions That Apply to All Housing Projects The following provisions apply to all housing development projects regardless of affordability.

Determination of Consistency with Applicable Plans, Standards, or Other Similar Provision Based on the Reasonable Person Standard
Government Code, § 65589.5, subdivision (f)(4)
A key component of the HAA is the determination as to whether or not the proposed housing development project is consistent, compliant and in conformity with all applicable plans, programs, policies, ordinances, standards, requirements, and other similar provisions.

Traditionally, this determination is made by local government, which is given significant deference to interpret its own plans, programs, policies, ordinances, standards, requirements, and other similar provisions. In most planning and zoning matters, courts traditionally uphold an agency’s determination if there is “substantial evidence” to support that determination. If substantial evidence supports the agency's decision, an agency can reach a conclusion that a development project is inconsistent with applicable provisions, even if there is evidence to the contrary.

Departing from these traditional rules, the HAA sets forth its own standard for determining consistency with local government rules for housing development projects and emergency shelters. A housing development project or emergency shelter is deemed consistent, compliant, and in conformity with an applicable plan, program, policy, ordinance, standard, requirement, or other similar provision if there is substantial evidence that could allow a reasonable person to conclude that the housing development project or emergency shelter is consistent, compliant, or in conformity with applicable standards and requirements. The intent of this provision is to provide an objective standard and increase the likelihood of housing development projects being found consistent, compliant and in conformity.

Applicability of Density Bonus Law
Government Code, § 65589.5, subdivision (j)(3)
The receipt of a density bonus pursuant to Density Bonus Law (Government Code § 65915) does not constitute a valid basis on which to find a proposed housing development project is inconsistent, not in compliance, or not in conformity, with an applicable plan, program, policy, ordinance, standard, requirement, or other similar provision. Receipt of a density bonus can include a bonus in number of units, incentives, concessions, or waivers to development standards allowed under Density Bonus Law.7
General Plan and Zoning Consistency Standard
Government Code, § 65589.5, subdivision (j)(4)
For various reasons, there is at times inconsistency between standards in a general plan and zoning standards. For example, a local government may have amended the general plan, but

7 Please note pursuant to Government Code § 65915, subd. (f) a receipt of a density bonus does not require an increase in density. An applicant can elect to ask for just the concessions, incentives, and waivers that the project qualifies for under State Density Bonus Law.

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Housing Accountability Act Technical Assistance Advisory 12 has not yet amended all of its municipal ordinances to assure vertical consistency8.

Recognizing this, the HAA clarifies that if the zoning standards and criteria are inconsistent with applicable, objective general plan standards, but the development project is consistent with the applicable objective general plan standards for the site, then the housing development project cannot be found inconsistent with the standards and criteria of the zoning. Further, if such an inconsistency exists, the local agency may not require rezoning prior to housing development project approval.

However, the local agency may require the proposed housing development project to comply with the objective standards and criteria contained elsewhere in the zoning code that are consistent with the general plan designation. For example, if a site has a general plan land use designation of high density residential, but the site is zoned industrial, then a local government can require the project to comply with objective development standards in zoning districts that are consistent with the high density residential designation, such as a multifamily high density residential zone.

However, under the HAA, the standards and criteria determined to apply to the project must facilitate and accommodate development at the density allowed the general plan on the project site and as proposed by the housing development project.

Written Notification of Inconsistency
Government Code, § 65589.5, subdivision (j)(2)
If a local government considers a proposed housing development project to be inconsistent, non-compliant, or not in conformity with any applicable plan, program, policy, ordinance, standard, requirement, or other similar provision, the local government must provide written notification and documentation of the inconsistency, noncompliance, or inconformity. This requirement applies to all housing development projects, regardless of affordability level. The documentation must:
• Identify the specific provision or provisions and provide an explanation of the reason or reasons why the local agency considers the housing development to be inconsistent, non- compliant, or non-conformant with identified provisions. • Be provided to the applicant within 30 days of a project application being deemed complete for projects containing 150 or fewer housing units.
• Be provided to the applicant within 60 days of a project application being deemed complete for projects containing over 150 units.

Consequence for Failure to Provide Written Documentation If the local government fails to provide the written documentation within the required timeframe, the housing development project is deemed consistent, compliant and in conformity with applicable plans, programs, policies, ordinances, standards, requirements, or other similar provisions.

8 Pursuant to Government Code § 65860, city and county, including a charter city, zoning ordinances must be consistent with the adopted general plan. This is known as vertical consistency.

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Housing Accountability Act Technical Assistance Advisory 13 Denial of a Housing Project that is Consistent with Applicable Plans, Standards, or Other Similar Provisions Based on the Preponderance of the Evidence Standard Government Code, § 65589.5, subdivision (j)(1)
When a proposed housing development project complies with applicable, objective general plan, zoning, and subdivision standards and criteria, including design review standards, in effect at the time that the application was deemed complete, but the local agency proposes to disapprove the project or to impose a condition that the project be developed at a lower density, the local agency shall base its decision regarding the proposed housing development project upon written findings supported by a preponderance of the evidence on the record that both of the following conditions exist:
• The housing development 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.

A “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. Pursuant to Government Code section 65589.5 (a)(3) it is the intent of the Legislature that the conditions that would have a specific, adverse impact upon the public health and safety arise infrequently.

An example of a condition that does not constitute a specific, adverse impact would be criteria that requires a project to conform with “neighborhood character”. Such a standard is not quantifiable and therefore would not meet the conditions set forth under the HAA. • There is no feasible method to satisfactorily mitigate or avoid the adverse impact, other than the disapproval of the housing development project or the approval of the project upon the condition that it be developed at a lower density. Feasible means capable of being accomplished in a successful manner within a reasonable period of time, taking into account economic, environmental, social, and technological factors.

Preponderance of the Evidence Standard
In most actions, a local government is tasked with making findings or determinations based on “substantial evidence.” Under the substantial evidence standard, local government is merely required to find reasonable, adequate evidence in support of their findings, even if the same or even more evidence supports a finding to the contrary.

Findings or determinations based on a “preponderance of the evidence” standard require that local governments weigh the evidence and conclude that the evidence on one side outweighs, preponderates over, is more than the evidence on the other side, not necessarily in the number or quantity, but in its convincing force upon those to whom it is addressed9. Evidence that is substantial, but not a preponderance of the evidence, does not meet this standard.

9 People v. Miller (1916) 171 Cal. 649, 652. Harris v. Oaks Shopping Center (1999) 70 Cal.App.4th 206, 209 (“‘Preponderance of the evidence’ means evidence that has more convincing force than that opposed to it.”).

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Housing Accountability Act Technical Assistance Advisory 14 Provisions Related to Housing Affordable to Very Low-, Low-, or Moderate-Income Household, Emergency Shelters, and Farmworker Housing
State Policy on Housing Project Approval
“It is the policy of the state that a local government not reject or make infeasible housing development projects, including emergency shelters, that contribute to meeting the need determined pursuant to this article (RHNA) without a thorough analysis of the economic, social, and environmental effects of the action and without complying with subdivision (d)” Government Code, § 65589.5, subdivision (b).

The HAA provides additional protections for projects that contain housing affordable to very low-, low- or moderate-income households, including farmworker housing, or emergency shelters. State policy prohibits local governments from rejecting or otherwise making infeasible these types of housing development projects, including emergency shelters, without making specific findings.

Denial or Conditioning of Housing Affordable to Very Low-, Low- or Moderate-Income Households, Including Farmworker Housing, or Emergency Shelters Government Code, § 65589.5, subdivision (d) and (i)
The HAA specifies findings that local governments must make, in addition to those in the previous section, if they wish to deny a housing development affordable to very low-, low-, or moderate-income housing (including farmworker housing) or emergency shelters. These requirements also apply when a local government wishes to condition such a project in a way that it would that render it infeasible or would have a substantial adverse effect on the viability or affordability of a housing development project for very low-, low-, or moderate-income households. In addition to the findings, described above, that apply to all housing development projects, a local government must also make specific findings based upon the preponderance of the evidence of one of the following:
(1) The local government has an adopted housing element in substantial compliance with California’s Housing Element Law, contained in Article 10.6 of Government Code, and has met or exceeded development of its share of the RHNA in all income categories proposed in the housing development project. In the case of an emergency shelter, the local government shall have met or exceeded the need for emergency shelters as identified in the housing element. This requirement to meet or exceed its RHNA is in relationship to units built in the local government, not zoning. A local government’s housing element Annual Progress Report pursuant to Government Code section 65400 can be used to demonstrate progress towards RHNA goals.
(2) The housing development project would have a specific, adverse impact upon public health or safety and there is no feasible method to mitigate or avoid the impact without rendering the housing development project unaffordable or financially infeasible. Specific to housing development projects affordable to very low-, low-, or moderate-income housing (including farmworker housing) or emergency shelters, specific, adverse impacts do not include inconsistency with the zoning ordinance or general plan land use designation or eligibility to claim a welfare exemption under subdivision (g) of Section 214 of the Revenue and Taxation Code.
(3) Denial of the housing development project or the imposition of conditions is required to comply with specific state or federal law, and there is no feasible method to comply without

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Housing Accountability Act Technical Assistance Advisory 15 rendering the development unaffordable to low- and moderate-income households or rendering the development of the emergency shelter financially infeasible. (4) The housing development project is proposed on land zoned for agriculture or resource preservation that is either: (a) surrounded on two sides by land being used for agriculture or resource preservation; or (b) does not have adequate water or wastewater facilities to serve the housing development project.
(5) The housing development project meets both the following conditions:
• Is inconsistent with both the local government’s zoning ordinance and the general plan land use designation as specified in any element of the general plan as it existed on the date the application was deemed complete. This means this finding cannot be used in situations where the project is inconsistent with one (e.g., the general plan designation), but is consistent with the other (e.g., zoning ordinance).
• T he local government has an adopted housing element in substantial compliance with housing element Law.

Finding (5) cannot be used when any of the following occur:
o The housing development project is proposed for a site identified as suitable or available for very low-, low-, or moderate-income households within a housing element and the project is consistent with the specified density identified in the housing element. o The local government has failed to identify sufficient adequate sites in its inventory of available sites to accommodate its RNHA, and the housing development project is proposed on a site identified in any element of its general plan for residential use or in a commercial zone where residential uses are permitted or conditionally permitted. o The local government has failed to identify a zone(s) where emergency shelters are allowed without a conditional use or other discretionary permit, or has identified such zone(s) but has failed to demonstrate that they have sufficient capacity to accommodate the need for emergency shelter(s), and the proposed emergency shelter is for a site designated in any element of the general plan for industrial, commercial, or multifamily residential uses.

Any of these findings must be based on a preponderance of the evidence. For details, see “Preponderance of the evidence standard” on page 12 for further information.

Violations of Housing Accountability Act
The courts are the primary authority that enforces the HAA. Actions can be brought by eligible plaintiffs and petitioners to the court for potential violations of the law. Similarly, HCD under Government Code section 65585 (j), can find that a local government has taken an action in violation of the HAA. In that case, after notifying a local government of the violation, HCD would refer the violation to the Office of the Attorney General who could file a petition against a local government in the Superior Court.

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Housing Accountability Act Technical Assistance Advisory 16 Eligible Plaintiffs and Petitioners
Government Code, § 65589.5, subdivision (k)(1)(A) and (k)(2) The applicant, a person eligible to apply for residency in the housing development project or emergency shelter, or a housing organization may bring action to enforce the HAA. A housing organization, however, may only file an action to challenge the disapproval of the housing development project and must have filed written or oral comments with the local government prior to its action on the housing development project. “Housing organizations” means a trade or industry group engaged in the construction or management of housing units or a nonprofit organization whose mission includes providing or advocating for increased access to housing for low-income households. A housing organization is entitled to reasonable attorney fees and costs when prevailing in an action. Labor unions, building associations, multifamily apartment management companies, and legal aid societies are examples of housing organizations.

Remedies
Government Code, § 65589.5, subdivision (k)(1)(A)
If the plaintiff or petitioner prevails, the court must issue an order compelling compliance with the HAA within 60 days. The court’s order would at a minimum require the local agency to take action on the housing development project or emergency shelter during that time period. The court is further empowered to issue an order or judgment that actually directs the local government to approve the housing development project or emergency shelter if the court finds that the local agency acted in bad faith when it disapproved or conditionally approved the housing development or emergency shelter in violation of the HAA. “Bad faith” includes, but is not limited to, an action that is frivolous or otherwise entirely without merit.

If the plaintiff or petitioner prevails, the court shall award reasonable attorney fees and costs of the suit to the plaintiff or petitioner for both affordable and market-rate housing development projects,10 except in the “extraordinary circumstances” in which the court finds that awarding fees would not further the purposes of the HAA.

Local Agency Appeal Bond
Government Code, § 65589.5, subdivision (m)
If the local agency appeals the judgment of the trial court, the local agency shall post a bond, in an amount to be determined by the court, to the benefit of the plaintiff if the plaintiff is the project applicant. In this provision, the Legislature has waived, to some degree, the immunity from damages that normally extends to local agencies, recognizing that the project applicant incurs costs due to the delay of its project when a local agency appeals. (Contrast Gov. Code, § 65589.5, subd. (m), with Code Civ. Proc., § 995.220, subd. (b) [local public entities do not have to post bonds].)

10 / Honchariw v. County of Stanislaus (2013) 218 Cal.App.4th 1019, 1023–1024, which ruled to the contrary, was superseded by statutory changes in Senate Bill 167 (Stats. 2017, ch. 368, § 1), Assembly Bill 678 (Stats. 2017, ch. 373, § 1), and Senate Bill 330 (Stats. 2019, ch. 654, § 3).

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Housing Accountability Act Technical Assistance Advisory 17 Failure to Comply with Court Order
Government Code, § 65589.5, subdivision (k)(1)(B)(i), (k)(1)(C), and (l) If the local government fails to comply with the order or judgment within 60 days of issuance, the court must impose a fine on the local government. The minimum fine that may be imposed is $10,000 per housing unit in the housing development project as proposed on the date the application was deemed complete. Please note, the use of the term “deemed complete” in this instance has the same meaning as “determined to be complete” as referenced on page 7. The monies are to be deposited into the State’s Building Homes and Jobs fund or the Housing Rehabilitation Loan fund. In calculating the amount of the fine in excess of the minimum, the court is directed to consider the following factors:
• The local government’s progress in meeting its RHNA and any previous violations of the HAA.
• Whether the local government acted in bad faith when it disapproved or conditionally approved the housing development or emergency shelter in violation of the HAA. If the court finds that the local government acted in bad faith, the total amount of the fine must be multiplied by five.

The court may issue further orders as provided by law to ensure that the purposes and policies of this section are fulfilled, including, but not limited to, an order to vacate the decision of the local agency and an order to approve the housing development project.

Court-Imposed Fines
Court-imposed fines begin at $10,000 per housing unit and could be much higher. If the court determines the local government acted in bad faith, the fine is multiplied by five. This equates to a minimum fine of $50,000 per unit.

Bad faith includes, but is not limited to, an action that is frivolous or otherwise entirely without merit. For example, in a recent Los Altos Superior Court order, the court issued an order directing the local agency to approve the housing development project and found that the local agency acted in bad faith when it disapproved the housing development because its denial was entirely without merit. The city’s denial letter did not reflect that the city made a benign error in the course of attempting, in good faith, to follow the law by explaining to the developer how the project conflicted with objective standards that existed at the time of application; instead, the city denied the application with a facially deficient letter, employed strained interpretations of statute and local standards, and adopted a resolution enumerating insufficient reasons for its denial11. Bad faith can be demonstrated through both substantive decisions and procedural actions. In the Los Altos case, the court found that demanding an administrative appeal with less than a days’ notice revealed bad faith. Repeated, undue delay may likewise reveal bad faith.

11 Order Granting Consolidated Petitions for Writ of Mandate, 40 Main Street Offices, LLC v. City of Los Altos et al. (Santa Clara Superior Court Case No. 19CV349845, April 27, 2020), p. 38

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Housing Accountability Act Technical Assistance Advisory 18 APPENDIX A: Frequently Asked Questions
What types of housing development project applications are subject to the Housing Accountability Act (HAA)?
The HAA applies to both market rate and affordable housing development projects. (Honchariw v. County of Stanislaus (2011) 200 Cal.App.4th 1066, 1073.) It applies to housing development projects that consist of residential units and mixed-use developments when two-thirds or more of the square footage is designated for residential use. It also applies to transitional housing, supportive housing, farmworker housing, and emergency shelters. (Gov. Code, § 65589.5, subds. (d) and (h)(2).)
Does the Housing Accountability Act apply to charter cities? Yes, the HAA applies to charter cities (Gov. Code, § 65589.5, subd. (g).) Does the Housing Accountability Act apply to housing development projects in coastal zones?
Yes. However, local governments must still comply with the California Coastal Act of 1976 (Division 20 (commencing with Section 30000) of the Public Resources Code) (Gov. Code, § 65589.5, subd. (e).)
Are housing developments still subject to the California Environmental Quality Act (CEQA) if they qualify for the protections under the Housing Accountability Act? Yes. Jurisdictions are still required to comply with CEQA (Division 13 (commencing with Section 21000) of the Public Resources Code) as applicable to the project. (Gov. Code, § 65589.5, subd. (e).)
Does the California Department of Housing and Community Development have enforcement authority for the Housing Accountability Act? Yes. HCD has authority to find that a local government’s actions do not substantially comply with the HAA (Gov. Code, § 65585, subd. (j)(1).) In such a case, HCD may notify the California State Attorney General’s Office that a local government has taken action in violation of the HAA.

If approval of a housing development project triggers the No-Net Loss Law, may a local government disapprove the project?
No. Triggering a required action under the No-Net Loss Law is not a valid basis to disapprove a housing development project. (Gov. Code, § 65863, subd. (c)(2).) The only valid reasons for disapproving a housing development project are defined in the HAA under subdivisions (d) and (j). Subdivision (j) contains requirements that apply to all housing development projects; subdivision (d) contains additional requirements for housing development projects for very low-, low- or moderate-income households or emergency shelters.

Does the Housing Accountability Act apply to a residential development project on an historic property?
Yes. The HAA does not limit the applicability of its provisions based on individual site characteristics or criteria. The local government may apply objective, quantifiable, written development standards, conditions, and policies related to historic preservation to the housing development project, so long as they were in effect when the application was deemed

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Housing Accountability Act Technical Assistance Advisory 19 complete12. The standards should be appropriate to, and consistent with, meeting the local government’s regional housing need and facilitate development at the permitted density. (Gov.

Code, § 65589.5, subd. (f)(1).) However, it should be noted that compliance with historic preservation laws may otherwise constrain the approval of a housing development.

Under the Housing Accountability Act, is the retail/commercial component of a mixed- use project subject to review when the housing component must be approved? Yes. The local government may apply objective, quantifiable, written development standards, conditions and policies to the entirety of the mixed-use project, so long as they were in effect when the application was deemed complete. (Gov. Code, § 65589.5, subd. (f)(1).) Does the Housing Accountability Act apply to subdivision maps and other discretionary land use applications?
Yes. The HAA applies to denials of subdivision maps and other discretionary land use approvals or entitlements necessary for the issuance of a building permit (Gov. Code, § 65589.5, subd (h)(6).)
Does the Housing Accountability Act apply to applications for individual single-family residences or individual Accessory Dwelling Units (ADUs)? No. A “housing development project” means a use consisting of residential units only, mixed use developments consisting of residential and non-residential uses with at least two-thirds of the square footage designated for residential use, or transitional or supportive housing.

Because the term “units” is plural, a development has to consist of more than one unit to qualify under the HAA (Gov. Code, § 65589.5, subd. (h)(2).).

Does the Housing Accountability Act apply to an application that includes both a single- family residence and an Accessory Dwelling Unit?
Yes. Since an application for both a single-family residence and an ADU includes more than one residential unit, the HAA applies (Gov. Code, § 65589.5, subd. (h)(2).) Does the Housing Accountability Act apply to an application for a duplex? Yes. Since an application for a duplex includes more than one residential unit, the HAA applies. (Gov. Code, § 65589.5, subd. (h)(2).)
Does the Housing Accountability Act apply to market-rate housing developments? Yes. Market-rate housing developments are subject to the HAA (Gov. Code, § 65589.5, subd. (h)(2).) In Honchariw v. County of Stanislaus (2011) 200 Cal.App.4th 1066, the court found the definition of “housing development project” was not limited to projects involving affordable housing and extended to market-rate projects. Market-rate housing development projects are subject to the requirements of paragraph (j) (Gov. Code, § 65589.5, subd. (j).)

12 For purposes of determination of whether a site is historic, “deemed complete” is used with reference to Government Code §65940. See Government Code § 65913.10.

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Housing Accountability Act Technical Assistance Advisory 20 Under the Housing Accountability Act, if a housing development project is consistent with local planning rules, can it be denied or conditioned on a density reduction? Yes. However, a local government may deny a housing development that is consistent with local planning rules, or condition it on reduction in density, only under very specific circumstances. (Gov. Code, § 65589.5, subds. (j)(1)(A), (B).) The local government must make written findings based on a preponderance of the evidence that both:
(1) The housing development project would have a specific, adverse impact upon public health or safety unless disapproved or approved at a lower density; and (2) There is no feasible method to satisfactorily mitigate or avoid the impact. (See definition of and specific requirements for finding of “specific, adverse impact” discussed below.)
Under the Housing Accountability Act, can a housing development project affordable to very low-, low-, or moderate-income households (including farmworker housing) or emergency shelter that is inconsistent with local planning requirements be denied or conditioned in a manner that renders it infeasible for the use proposed? Yes, but only under specific circumstances. The local government must make written findings based on a preponderance of the evidence as to specific criteria. However, inconsistency with zoning does not justify denial or conditioning if the project is consistent with the general plan. (See Page 11 for more details). See also Gov. Code, § 65589.5, subds. (d)(1)-(5).) Is there a definition for “specific, adverse impact” upon public health and safety? Yes. The HAA provides that a “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. Inconsistency with the zoning ordinance or general plan land use designation is not such a specific, adverse impact upon the public health or safety. (Gov. Code, § 65589.5, subds. (d)(2) and (j)(1)(A).)
The HAA considers that such impacts would be rare: “It is the intent of the Legislature that the conditions that would have a specific, adverse impact upon the public health and safety, as described in paragraph (2) of subdivision (d) and paragraph (1) of subdivision (j), arise infrequently.” (Gov. Code, § 65589.5, subd. (a)(3).)

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Housing Accountability Act Technical Assistance Advisory 21 Appendix B: Definitions
Area median income means area median income as periodically established by the HCD pursuant to Section 50093 of the Health and Safety Code. The developer shall provide sufficient legal commitments to ensure continued availability of units for very low or low-income households in accordance with the provisions of this subdivision for 30 years. (Gov. Code, § 65589.5, subd. (h)(4).)
Bad faith includes, but is not limited to, an action that is frivolous or otherwise entirely without merit. (Gov. Code, § 65589.5, subd. (l).) This definition arises in the context of the action a local government takes when it disapproved or conditionally approved the housing development or emergency shelter in violation of the HAA.

Deemed complete means that the applicant has submitted a preliminary application pursuant to Government Code section 65941.1 (Gov. Code, § 65589.5, subd. (h)(5).) However, in Government Code section 65589.5(k)(1)(B)(i) deemed complete has the same meaning as “Determined to be Complete”.

Determined to be complete means that the applicant has submitted a complete application pursuant to Government Code section 65943 (Gov. Code, § 65589.5, subd. (h)(9).) Disapprove the housing development project means a local government either votes on a proposed housing development project application and the application is disapproved, including any required land use approvals or entitlements necessary for the issuance of a building permit, or fails to comply with specified timeframes in the Permit Streamlining Act. (Gov. Code, § 65589.5, subd. (h)(5).)
Farmworker housing means housing in which at least 50 percent of the units are available to, and occupied by, farmworkers and their households.

Feasible means capable of being accomplished in a successful manner within a reasonable period of time, taking into account economic, environmental, social, and technological factors. (Gov. Code, § 65589.5, subd. (h)(1).)
Housing development project means a use consisting of any of the following: (1) development projects with only residential units, (2) mixed-use developments consisting of residential and non-residential uses with at least two-thirds of the square footage designated for residential use, (3) transitional or supportive housing.

Housing organization means a trade or industry group whose local members are primarily engaged in the construction or management of housing units or a nonprofit organization whose mission includes providing or advocating for increased access to housing for low-income households and have filed written or oral comments with the local agency prior to action on the housing development project. (Gov. Code, § 65589.5, subd. (k)(2).) This definition is relevant to the individuals or entities that have standing to bring an HAA enforcement action against a local agency.

Housing for very low-, low-, or moderate-income households means that either:
• At least 20 percent of the total units shall be sold or rented to lower income households, as defined in Section 50079.5 of the Health and Safety Code, or

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Housing Accountability Act Technical Assistance Advisory 22 • O ne hundred (100) percent of the units shall be sold or rented to persons and families of moderate income as defined in Section 50093 of the Health and Safety Code, or persons and families of middle income, as defined in Section 65008 of this code.

Housing units targeted for lower income households shall be made available at a monthly housing cost that does not exceed 30 percent of 60 percent of area median income with adjustments for household size made in accordance with the adjustment factors on which the lower income eligibility limits are based. Housing units targeted for persons and families of moderate income shall be made available at a monthly housing cost that does not exceed 30 percent of 100 percent of area median income with adjustments for household size made in accordance with the adjustment factors on which the moderate-income eligibility limits are based. (Gov. Code, § 65589.5, subd. (h)(3).)
Lower density (as used in the sense of “to lower density”) means a reduction in the units built per acre. It includes conditions that directly lower density and conditions that effectively do so via indirect means. (Gov. Code, § 65589.5, subd. (h)(7).) Mixed use means a development consisting of residential and non-residential uses with at least two-thirds of the square footage designated for residential use. (Gov. Code, § 65589.5, subd. (h)(2)(B).)
Objective means 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, subd. (h)(2)(B).)
Regional housing needs allocation (RHNA) means the share of the regional housing needs assigned to each jurisdiction by income category pursuant to Government Code section 65584 though 65584.6.

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. Inconsistency with the zoning ordinance or general plan land use designation shall not constitute a specific, adverse impact upon the public health or safety. (Gov. Code, § 65589.5, subds. (d)(2), (j)(1)(A).) This definition is relevant to the written findings that a local agency must make when it disapproves or imposes conditions on a housing development project or an emergency shelter that conforms with all objective standards. It is the express intent of the Legislature that the conditions that would give rise to a specific, adverse impact upon the public health and safety occur infrequently. (Gov.

Code, § 65589.5, subd. (a)(3).)

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Housing Accountability Act Technical Assistance Advisory 23 Appendix C: Preliminary Application (Senate Bill 330, Statutes of 2019) The Housing Crisis Act of 2019 (Chapter 654, Statutes of 2019 (SB 330)) strengthens protections for housing development projects under the Housing Accountability Act (HAA), Planning and Zoning Law, and the Permit Streamlining Act. The provisions set forth under SB 330 sunset in 2025.

Among other provisions, to increase transparency and certainty early in the development application process, SB 330 allows a housing developer the option of submitting a “preliminary application” for any housing development project. Submittal of a preliminary application allows a developer to provide a specific subset of information on the proposed housing development before providing the complete information required by the local government. Upon submittal of an application and a payment of the permit processing fee, a housing developer is allowed to “freeze” the applicable standards to their project early while they assemble the rest of the material necessary for a full application submittal. This ensures development requirements do not change during this time, adding costs to a project due to potential redesigns due to changing local standards.

Benefits of a Preliminary Application
Government Code, § 65589.5, subdivision (o)
The primary benefit of a preliminary application is that a housing development project is subject only to the ordinances, policies, standard, or any other measure (standards) adopted and in effect when a preliminary application was submitted. “Ordinances, policies, and standards” includes general plan, community plan, specific plan, zoning, design review standards and criteria, subdivision standards and criteria, and any other rules, regulations, requirements, and policies of a local agency, as defined in Section 66000, including those relating to development impact fees, capacity or connection fees or charges, permit or processing fees, and other exactions.

However, there are some circumstances where the housing development project can be subjected to a standard beyond those in effect when a preliminary application is filed:
• In the case of a fee, charge, or other monetary exaction, an increase resulting from an automatic annual adjustment based on an independently published cost index that is referenced in the ordinance or resolution establishing the fee or other monetary exaction. • A preponderance of the evidence in the record establishes that the standard is necessary to mitigate or avoid a specific, adverse impact upon the public health or safety, and there is no feasible alternative method to satisfactorily mitigate or avoid the adverse impact. • The standard is necessary to avoid or substantially lessen an impact of the project under the California Environmental Quality Act (Division 13 (commencing with Section 21000) of the Public Resources Code).
• The housing development project has not commenced construction within two and a-half years following the date that the project received final approval. “Final approval” means that the housing development project has received all necessary approvals to be eligible to apply for, and obtain, a building permit or permits and either of the following is met:
o The expiration of all applicable appeal periods, petition periods, reconsideration periods, or statute of limitations for challenging that final approval without an appeal, petition,

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Housing Accountability Act Technical Assistance Advisory 24 request for reconsideration, or legal challenge have been filed. If a challenge is filed, that challenge is fully resolved or settled in favor of the housing development project. • The housing development project is revised following submittal of a preliminary application pursuant to Section 65941.1 such that the number of residential units or square footage of construction changes by 20 percent or more, exclusive of any increase resulting from the receipt of a density bonus, incentive, concession, waiver, or similar provision. “Square footage of construction” means the building area, as defined by the California Building Standards Code (Title 24 of the California Code of Regulations). However, a local government is not prevented from applying the standards in effect at the time of the preliminary application submittal.
• Once a residential project is complete and a certificate of occupancy has been issued, local governments are not limited in the application of later enacted ordinances, policies, and standards that regulate the use and occupancy of those residential units, such as ordinances relating to rental housing inspection, rent stabilization, restrictions on short-term renting, and business licensing requirements for owners of rental housing.

Contents of a Preliminary Application
Government Code, § 65941.1
Each local government shall compile a checklist and application form that applicants for housing development projects may use for submittal of a preliminary application. However, HCD has adopted a standardized form that may be used to submit a preliminary application if a local agency has not developed its own application form. The preliminary application form can be found on HCD’s website.

The following are the items that are contained in the application form. Local government checklists or forms cannot require or request any information beyond these 17 items.

1. The specific location, including parcel numbers, a legal description, and site address, if applicable.

2. The existing uses on the project site and identification of major physical alterations to the property on which the project is to be located.

3. A site plan showing the location on the property, elevations showing design, color, and material, and the massing, height, and approximate square footage, of each building that is to be occupied.

4. The proposed land uses by number of units and square feet of residential and nonresidential development using the categories in the applicable zoning ordinance.

5. The proposed number of parking spaces.

6. Any proposed point sources of air or water pollutants.

7. Any species of special concern known to occur on the property.

8. Whether a portion of the property is located within any of the following:
• A very high fire hazard severity zone, as determined by the Department of Forestry and Fire Protection pursuant to Section 51178.
• Wetlands, as defined in the United States Fish and Wildlife Service Manual, Part 660 FW 2 (June 21, 1993).

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Housing Accountability Act Technical Assistance Advisory 25 • A hazardous waste site that is listed pursuant to Section 65962.5 or a hazardous waste site designated by the Department of Toxic Substances Control pursuant to Section 25356 of the Health and Safety Code.
• A special flood hazard area subject to inundation by the 1 percent annual chance flood (100-year flood) as determined by the Federal Emergency Management Agency in any official maps published by the Federal Emergency Management Agency. • A delineated earthquake fault zone as determined by the State Geologist in any official maps published by the State Geologist, unless the development complies with applicable seismic protection building code standards adopted by the California Building Standards Commission under the California Building Standards Law (Part 2.5 (commencing with Section 18901) of Division 13 of the Health and Safety Code), and by any local building department under Chapter 12.2 (commencing with Section 8875) of Division 1 of Title 2. • A stream or other resource that may be subject to a streambed alteration agreement pursuant to Chapter 6 (commencing with Section 1600) of Division 2 of the Fish and Game Code.

9. Any historic or cultural resources known to exist on the property.

10. The number of proposed below market rate units and their affordability levels.

11. The number of bonus units and any incentives, concessions, waivers, or parking reductions requested pursuant to Section 65915.

12. Whether any approvals under the Subdivision Map Act, including, but not limited to, a parcel map, a tentative map, or a condominium map, are being requested.

13. The applicant’s contact information and, if the applicant does not own the property, consent from the property owner to submit the application.

14. For a housing development project proposed to be located within the coastal zone, whether any portion of the property contains any of the following:
• Wetlands, as defined in subdivision (b) of Section 13577 of Title 14 of the California Code of Regulations.
• Environmentally sensitive habitat areas, as defined in Section 30240 of the Public Resources Code.
• A tsunami run-up zone.
• Use of the site for public access to or along the coast.

15. The number of existing residential units on the project site that will be demolished and whether each existing unit is occupied or unoccupied.

16. A site map showing a stream or other resource that may be subject to a streambed alteration agreement pursuant to Chapter 6 (commencing with Section 1600) of Division 2 of the Fish and Game Code and an aerial site photograph showing existing site conditions of environmental site features that would be subject to regulations by a public agency, including creeks and wetlands.

17. The location of any recorded public easement, such as easements for storm drains, water lines, and other public rights of way.

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Housing Accountability Act Technical Assistance Advisory 26 Timing Provisions from Filing of a Preliminary Application to Determination of Consistency with Applicable Standards under the Housing Accountability Act Step 1: Preliminary Application Submittal GC 65941.1
• Applicant submits preliminary application form.
• Applicant pays permit processing fees.
• No affirmative determination by local government regarding the completeness of a preliminary application is required.

Step 2: Full Application Submittal
• Applicant submits full application within 180 days of preliminary application submittal. • Application contains all information required by the local government application checklist pursuant to Government Code Sections 65940, 65941, and 65941.513.

Step 3: Determination of Application Completeness GC 65943 • Local government has 30 days to determine application completeness and provide in writing both the determination of whether the application is complete and, when applicable, a list of items that were not complete. This list is based on the agency’s submittal requirement checklist. If written notice is not provided within 30 days, the application is deemed complete.
• An applicant that has submitted a preliminary application has 90 days to correct deficiencies and submit the material needed to complete the application14. • Upon resubmittal, local government has 30 days to evaluate. Evaluation is based on previous stated items and the supplemented or amended materials. If still not correct, the local agency must specify those parts of the application that were incomplete and indicate the specific information needed to complete the application. • Upon a third determination of an incomplete application, an appeals process must be provided.

Step 4: Application Consistency with Standards (HAA) GC 65589.5 • Identify the specific provision or provisions and provide an explanation of the reason or reasons why the local agency considers the housing development to be inconsistent, non- compliant, or non-conformant with identified provisions.

13 Government Codes § 65940, 65941, and 65941.5 require, among other things, a local government to compile one or more lists that shall specify in detail the information that will be required from any applicant for a development project. Copies of the information shall be made available to all applicants for development projects and to any person who requests the information.
14 The statute is silent on applications that did not use the preliminary application process. There is no statutory timeline for resubmittal in those instances.

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Housing Accountability Act Technical Assistance Advisory 27 • 30 days of a project application being deemed complete for projects containing 150 or fewer housing units.
• 60 days of a project application being deemed complete for projects containing over 150 units.

Step 5: Other Entitlement Process Requirements Pursuant to SB 330 • Pursuant to Government Code section 65905.5, if a proposed housing development project complies with the applicable, objective general plan and zoning standards, the local government can conduct a maximum of five hearings, including hearing continuances, in connection with the approval of the project. Compliance with applicable, objective general plan and zoning standards has the same meaning and provisions as in the HAA, including circumstances when there is inconsistency between the general plan and zoning.

A “hearing” includes any public hearing, workshop, or similar meeting conducted by the local government with respect to the housing development project, whether by the legislative body of the city or county, the planning agency, or any other agency, department, board, commission, or any other designated hearing officer or body of the city or county, or any committee or subcommittee thereof. A “hearing” does not include a hearing to review a legislative approval required for a proposed housing development project, including, but not limited to, a general plan amendment, a specific plan adoption or amendment, or a zoning amendment, or any hearing arising from a timely appeal of the approval or disapproval of a legislative approval.

However, it should be noted nothing in this requirement supersedes, limits, or otherwise modifies the requirements of, or the standards of review pursuant to CEQA. • Pursuant to Government Code section 65950, a local government must make a final decision on a residential project within 90 days after certification of an environmental impact report (or 60 days after adoption of a mitigated negative declaration or an environment report for an affordable housing project).

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Housing Accountability Act Technical Assistance Advisory 28 Appendix D: Housing Accountability Act Statute (2020)

GOVERNMENT CODE - GOV
TITLE 7. PLANNING AND LAND USE [65000 - 66499.58]
DIVISION 1. PLANNING AND ZONING [65000 - 66301]
CHAPTER 3. Local Planning [65100 - 65763]
ARTICLE 10.6. Housing Elements [65580 - 65589.11]
65589.5.
(a) (1) The Legislature finds and declares all of the following:
(A) The lack of housing, including emergency shelters, is a critical problem that threatens the economic, environmental, and social quality of life in California. (B) California housing has become the most expensive in the nation. The excessive cost of the state’s housing supply is partially caused by activities and policies of many local governments that limit the approval of housing, increase the cost of land for housing, and require that high fees and exactions be paid by producers of housing.
(C) 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. (D) Many local governments do not give adequate attention to the economic, environmental, and social costs of decisions that result in disapproval of housing development projects, reduction in density of housing projects, and excessive standards for housing development projects.
(2) In enacting the amendments made to this section by the act adding this paragraph, the Legislature further finds and declares the following:
(A) 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. (B) While the causes of this crisis are multiple and complex, the absence of meaningful and effective policy reforms to significantly enhance the approval and supply of housing affordable to Californians of all income levels is a key factor.
(C) The crisis has grown so acute in California that supply, demand, and affordability fundamentals are characterized in the negative: underserved demands, constrained supply, and protracted unaffordability.
(D) According to reports and data, California has accumulated an unmet housing backlog of nearly 2,000,000 units and must provide for at least 180,000 new units annually to keep pace with growth through 2025.
(E) California’s overall homeownership rate is at its lowest level since the 1940s. The state ranks 49th out of the 50 states in homeownership rates as well as in the supply of housing per

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Housing Accountability Act Technical Assistance Advisory 29 capita. Only one-half of California’s households are able to afford the cost of housing in their local regions.
(F) Lack of supply and rising costs are compounding inequality and limiting advancement opportunities for many Californians.
(G) The majority of California renters, more than 3,000,000 households, pay more than 30 percent of their income toward rent and nearly one-third, more than 1,500,000 households, pay more than 50 percent of their income toward rent.
(H) When Californians have access to safe and affordable housing, they have more money for food and health care; they are less likely to become homeless and in need of government- subsidized services; their children do better in school; and businesses have an easier time recruiting and retaining employees.
(I) An additional consequence of the state’s cumulative housing shortage is a significant increase in greenhouse gas emissions caused by the displacement and redirection of populations to states with greater housing opportunities, particularly working- and middle-class households. California’s cumulative housing shortfall therefore has not only national but international environmental consequences.
(J) California’s housing picture has reached a crisis of historic proportions despite the fact that, for decades, the Legislature has enacted numerous statutes intended to significantly increase the approval, development, and affordability of housing for all income levels, including this section.
(K) The Legislature’s intent in enacting this section in 1982 and in expanding its provisions since then was to significantly increase the approval and construction of new housing for all economic segments of California’s communities by meaningfully and effectively curbing the capability of local governments to deny, reduce the density for, or render infeasible housing development projects and emergency shelters. That intent has not been fulfilled. (L) It is the policy of the state that this section be interpreted and implemented in a manner to afford the fullest possible weight to the interest of, and the approval and provision of, housing. (3) It is the intent of the Legislature that the conditions that would have a specific, adverse impact upon the public health and safety, as described in paragraph (2) of subdivision (d) and paragraph (1) of subdivision (j), arise infrequently.
(b) It is the policy of the state that a local government not reject or make infeasible housing development projects, including emergency shelters, that contribute to meeting the need determined pursuant to this article without a thorough analysis of the economic, social, and environmental effects of the action and without complying with subdivision (d). (c) The Legislature also recognizes that premature and unnecessary development of agricultural lands for urban uses continues to have adverse effects on the availability of those lands for food and fiber production and on the economy of the state. Furthermore, it is the policy of the state that development should be guided away from prime agricultural lands; therefore, in implementing this section, local governments should encourage, to the maximum extent practicable, in filling existing urban areas.

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Housing Accountability Act Technical Assistance Advisory 30 (d) A local agency shall not disapprove a housing development project, including farmworker housing as defined in subdivision (h) of Section 50199.7 of the Health and Safety Code, for very low, low-, or moderate-income households, or an emergency shelter, or condition approval in a manner that renders the housing development project infeasible for development for the use of very low, low-, or moderate-income households, or an emergency shelter, including through the use of design review standards, unless it makes written findings, based upon a preponderance of the evidence in the record, as to one of the following:
(1) The local government has adopted a housing element pursuant to this article that has been revised in accordance with Section 65588, is in substantial compliance with this article, and the local government has met or exceeded its share of the regional housing need allocation pursuant to Section 65584 for the planning period for the income category proposed for the housing development project, provided that any disapproval or conditional approval shall not be based on any of the reasons prohibited by Section 65008. If the housing development project includes a mix of income categories, and the local government has not met or exceeded its share of the regional housing need for one or more of those categories, then this paragraph shall not be used to disapprove or conditionally approve the housing development project. The share of the regional housing need met by the local government shall be calculated consistently with the forms and definitions that may be adopted by HCD pursuant to Section 65400. In the case of an emergency shelter, the local government shall have met or exceeded the need for emergency shelter, as identified pursuant to paragraph (7) of subdivision (a) of Section 65583.

Any disapproval or conditional approval pursuant to this paragraph shall be in accordance with applicable law, rule, or standards.
(2) The housing development project or emergency shelter as proposed would have a specific, adverse impact upon the public health or safety, and there is no feasible method to satisfactorily mitigate or avoid the specific adverse impact without rendering the development unaffordable to low- and moderate-income households or rendering the development of the emergency shelter financially infeasible. As used in this paragraph, a “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. The following shall not constitute a specific, adverse impact upon the public health or safety:
(A) Inconsistency with the zoning ordinance or general plan land use designation. (B) The eligibility to claim a welfare exemption under subdivision (g) of Section 214 of the Revenue and Taxation Code.
(3) The denial of the housing development project or imposition of conditions is required in order to comply with specific state or federal law, and there is no feasible method to comply without rendering the development unaffordable to low- and moderate-income households or rendering the development of the emergency shelter financially infeasible. (4) The housing development project or emergency shelter is proposed on land zoned for agriculture or resource preservation that is surrounded on at least two sides by land being used for agricultural or resource preservation purposes, or which does not have adequate water or wastewater facilities to serve the project.

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Housing Accountability Act Technical Assistance Advisory 31 (5) The housing development project or emergency shelter is inconsistent with both the local government’s zoning ordinance and general plan land use designation as specified in any element of the general plan as it existed on the date the application was deemed complete, and the local government has adopted a revised housing element in accordance with Section 65588 that is in substantial compliance with this article. For purposes of this section, a change to the zoning ordinance or general plan land use designation subsequent to the date the application was deemed complete shall not constitute a valid basis to disapprove or condition approval of the housing development project or emergency shelter.
(A) This paragraph cannot be utilized to disapprove or conditionally approve a housing development project if the housing development project is proposed on a site that is identified as suitable or available for very low, low-, or moderate-income households in the local government’s housing element, and consistent with the density specified in the housing element, even though it is inconsistent with both the local government’s zoning ordinance and general plan land use designation.
(B) If the local agency has failed to identify in the inventory of land in its housing element sites that can be developed for housing within the planning period and are sufficient to provide for the local government’s share of the regional housing need for all income levels pursuant to Section 65584, then this paragraph shall not be utilized to disapprove or conditionally approve a housing development project proposed for a site designated in any element of the general plan for residential uses or designated in any element of the general plan for commercial uses if residential uses are permitted or conditionally permitted within commercial designations. In any action in court, the burden of proof shall be on the local agency to show that its housing element does identify adequate sites with appropriate zoning and development standards and with services and facilities to accommodate the local agency’s share of the regional housing need for the very low, low-, and moderate-income categories. (C) If the local agency has failed to identify a zone or zones where emergency shelters are allowed as a permitted use without a conditional use or other discretionary permit, has failed to demonstrate that the identified zone or zones include sufficient capacity to accommodate the need for emergency shelter identified in paragraph (7) of subdivision (a) of Section 65583, or has failed to demonstrate that the identified zone or zones can accommodate at least one emergency shelter, as required by paragraph (4) of subdivision (a) of Section 65583, then this paragraph shall not be utilized to disapprove or conditionally approve an emergency shelter proposed for a site designated in any element of the general plan for industrial, commercial, or multifamily residential uses. In any action in court, the burden of proof shall be on the local agency to show that its housing element does satisfy the requirements of paragraph (4) of subdivision (a) of Section 65583.
(e) Nothing in this section shall be construed to relieve the local agency from complying with the congestion management program required by Chapter 2.6 (commencing with Section 65088) of Division 1 of Title 7 or the California Coastal Act of 1976 (Division 20 (commencing with Section 30000) of the Public Resources Code). Neither shall anything in this section be construed to relieve the local agency from making one or more of the findings required pursuant to Section 21081 of the Public Resources Code or otherwise complying with the California Environmental Quality Act (Division 13 (commencing with Section 21000) of the Public Resources Code).

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Housing Accountability Act Technical Assistance Advisory 32 (f) (1) Except as provided in subdivision (o), nothing in shall be construed to prohibit a local agency from requiring the housing development project to comply with objective, quantifiable, written development standards, conditions, and policies appropriate to, and consistent with, meeting the local government’s share of the regional housing need pursuant to Section 65584.

However, the development standards, conditions, and policies shall be applied to facilitate and accommodate development at the density permitted on the site and proposed by the development.
(2) Except as provided in subdivision (o), nothing in shall be construed to prohibit a local agency from requiring an emergency shelter project to comply with objective, quantifiable, written development standards, conditions, and policies that are consistent with paragraph (4) of subdivision (a) of Section 65583 and appropriate to, and consistent with, meeting the local government’s need for emergency shelter, as identified pursuant to paragraph (7) of subdivision (a) of Section 65583. However, the development standards, conditions, and policies shall be applied by the local agency to facilitate and accommodate the development of the emergency shelter project.
(3) Except as provided in subdivision (o), nothing in this section shall be construed to prohibit a local agency from imposing fees and other exactions otherwise authorized by law that are essential to provide necessary public services and facilities to the housing development project or emergency shelter.
(4) For purposes of this section, a housing development project or emergency shelter shall be deemed consistent, compliant, and in conformity with an applicable plan, program, policy, ordinance, standard, requirement, or other similar provision if there is substantial evidence that would allow a reasonable person to conclude that the housing development project or emergency shelter is consistent, compliant, or in conformity. (g) This section shall be applicable to charter cities because the Legislature finds that the lack of housing, including emergency shelter, is a critical statewide problem. (h) The following definitions apply for the purposes of this section:
(1) “Feasible” means capable of being accomplished in a successful manner within a reasonable period of time, taking into account economic, environmental, social, and technological factors.
(2) “Housing development project” means a use consisting of any of the following:
(A) Residential units only.
(B) Mixed-use developments consisting of residential and nonresidential uses with at least two- thirds of the square footage designated for residential use. (C) Transitional housing or supportive housing.
(3) “Housing for very low, low-, or moderate-income households” means that either (A) at least 20 percent of the total units shall be sold or rented to lower income households, as defined in Section 50079.5 of the Health and Safety Code, or (B) 100 percent of the units shall be sold or rented to persons and families of moderate income as defined in Section 50093 of the Health and Safety Code, or persons and families of middle income, as defined in Section 65008 of this

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Housing Accountability Act Technical Assistance Advisory 33 code. Housing units targeted for lower income households shall be made available at a monthly housing cost that does not exceed 30 percent of 60 percent of area median income with adjustments for household size made in accordance with the adjustment factors on which the lower income eligibility limits are based. Housing units targeted for persons and families of moderate income shall be made available at a monthly housing cost that does not exceed 30 percent of 100 percent of area median income with adjustments for household size made in accordance with the adjustment factors on which the moderate-income eligibility limits are based.
(4) “Area median income” means area median income as periodically established by the HCD pursuant to Section 50093 of the Health and Safety Code. The developer shall provide sufficient legal commitments to ensure continued availability of units for very low or low-income households in accordance with the provisions of this subdivision for 30 years. (5) Notwithstanding any other law, until January 1, 2025, “deemed complete” means that the applicant has submitted a preliminary application pursuant to Section 65941.1. (6) “Disapprove the housing development project” includes any instance in which a local agency does either of the following:
(A) Votes on a proposed housing development project application and the application is disapproved, including any required land use approvals or entitlements necessary for the issuance of a building permit.
(B) Fails to comply with the time periods specified in subdivision (a) of Section 65950. An extension of time pursuant to Article 5 (commencing with Section 65950) shall be deemed to be an extension of time pursuant to this paragraph.
(7) “Lower density” includes any conditions that have the same effect or impact on the ability of the project to provide housing.
(8) Until January 1, 2025, “objective” means 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.
(9) Notwithstanding any other law, until January 1, 2025, “determined to be complete” means that the applicant has submitted a complete application pursuant to Section 65943. (i) If any city, county, or city and county denies approval or imposes conditions, including design changes, lower density, or a reduction of the percentage of a lot that may be occupied by a building or structure under the applicable planning and zoning in force at the time housing development project’s the application is complete, that have a substantial adverse effect on the viability or affordability of a housing development for very low, low-, or moderate-income households, and the denial of the development or the imposition of conditions on the development is the subject of a court action which challenges the denial or the imposition of conditions, then the burden of proof shall be on the local legislative body to show that its decision is consistent with the findings as described in subdivision (d), and that the findings are supported by a preponderance of the evidence in the record, and with the requirements of subdivision (o).

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Housing Accountability Act Technical Assistance Advisory 34 (j) (1) When a proposed housing development project complies with applicable, objective general plan, zoning, and subdivision standards and criteria, including design review standards, in effect at the time that the application was deemed complete, but the local agency proposes to disapprove the project or to impose a condition that the project be developed at a lower density, the local agency shall base its decision regarding the proposed housing development project upon written findings supported by a preponderance of the evidence on the record that both of the following conditions exist:
(A) The housing development 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. As used in this paragraph, a “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.
(B) There is no feasible method to satisfactorily mitigate or avoid the adverse impact identified pursuant to paragraph (1), other than the disapproval of the housing development project or the approval of the project upon the condition that it be developed at a lower density. (2) (A) If the local agency considers a proposed housing development project to be inconsistent, not in compliance, or not in conformity with an applicable plan, program, policy, ordinance, standard, requirement, or other similar provision as specified in this subdivision, it shall provide the applicant with written documentation identifying the provision or provisions, and an explanation of the reason or reasons it considers the housing development to be inconsistent, not in compliance, or not in conformity as follows:
(i) Within 30 days of the date that the application for the housing development project is determined to be complete, if the housing development project contains 150 or fewer housing units.
(ii) Within 60 days of the date that the application for the housing development project is determined to be complete, if the housing development project contains more than 150 units. (B) If the local agency fails to provide the required documentation pursuant to subparagraph (A), 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.
(3) For purposes of this section, the receipt of a density bonus pursuant to Section 65915 shall not constitute a valid basis on which to find a proposed housing development project is inconsistent, not in compliance, or not in conformity, with an applicable plan, program, policy, ordinance, standard, requirement, or other similar provision specified in this subdivision. (4) For purposes of this section, a proposed housing development project is not inconsistent with the applicable zoning standards and criteria, and shall not require a rezoning, if the housing development project is consistent with the objective general plan standards and criteria but the zoning for the project site is inconsistent with the general plan. If the local agency has complied with paragraph (2), the local agency may require the proposed housing development project to comply with the objective standards and criteria of the zoning which is consistent with the general plan, however, the standards and criteria shall be applied to facilitate and

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Housing Accountability Act Technical Assistance Advisory 35 accommodate development at the density allowed on the site by the general plan and proposed by the proposed housing development project.
(k) (1) (A) (i) The applicant, a person who would be eligible to apply for residency in the housing development project or emergency shelter, or a housing organization may bring an action to enforce this section. If, in any action brought to enforce this section, a court finds that any of the following are met, the court shall issue an order pursuant to clause (ii):
(I) The local agency, in violation of subdivision (d), disapproved a housing development project or conditioned its approval in a manner rendering it infeasible for the development of an emergency shelter, or housing for very low, low-, or moderate-income households, including farmworker housing, without making the findings required by this section or without making findings supported by a preponderance of the evidence.
(II) The local agency, in violation of subdivision (j), disapproved a housing development project complying with applicable, objective general plan and zoning standards and criteria, or imposed a condition that the project be developed at a lower density, without making the findings required by this section or without making findings supported by a preponderance of the evidence.
(III) (ia) Subject to sub-subclause (ib), the local agency, in violation of subdivision (o), required or attempted to require a housing development project to comply with an ordinance, policy, or standard not adopted and in effect when a preliminary application was submitted. (ib) This subclause shall become inoperative on January 1, 2025. (ii) If the court finds that one of the conditions in clause(i) is met, the court shall issue an order or judgment compelling compliance with this section within 60 days, including, but not limited to, an order that the local agency take action on the housing development project or emergency shelter. The court may issue an order or judgment directing the local agency to approve the housing development project or emergency shelter if the court finds that the local agency acted in bad faith when it disapproved or conditionally approved the housing development or emergency shelter in violation of this section. The court shall retain jurisdiction to ensure that its order or judgment is carried out and shall award reasonable attorney’s fees and costs of suit to the plaintiff or petitioner, except under extraordinary circumstances in which the court finds that awarding fees would not further the purposes of this section. (B) (i) Upon a determination that the local agency has failed to comply with the order or judgment compelling compliance with this section within 60 days issued pursuant to subparagraph (A), the court shall impose fines on a local agency that has violated this section and require the local agency to deposit any fine levied pursuant to this subdivision into a local housing trust fund. The local agency may elect to instead deposit the fine into the Building Homes and Jobs Fund, if Senate Bill 2 of the 2017–18 Regular Session is enacted, or otherwise in the Housing Rehabilitation Loan Fund. The fine shall be in a minimum amount of ten thousand dollars ($10,000) per housing unit in the housing development project on the date the application was deemed complete pursuant to Section 65943. In determining the amount of fine to impose, the court shall consider the local agency’s progress in attaining its target allocation of the regional housing need pursuant to Section 65584 and any prior violations of this section. Fines shall not be paid out of funds already dedicated to affordable housing, including, but not limited to, Low and Moderate Income Housing Asset Funds, funds dedicated

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Housing Accountability Act Technical Assistance Advisory 36 to housing for very low, low-, and moderate-income households, and federal HOME Investment Partnerships Program and Community Development Block Grant Program funds. The local agency shall commit and expend the money in the local housing trust fund within five years for the sole purpose of financing newly constructed housing units affordable to extremely low, very low, or low-income households. After five years, if the funds have not been expended, the money shall revert to the state and be deposited in the Building Homes and Jobs Fund, if Senate Bill 2 of the 2017–18 Regular Session is enacted, or otherwise in the Housing Rehabilitation Loan Fund, for the sole purpose of financing newly constructed housing units affordable to extremely low, very low, or low-income households. (ii) If any money derived from a fine imposed pursuant to this subparagraph is deposited in the Housing Rehabilitation Loan Fund, then, notwithstanding Section 50661 of the Health and Safety Code, that money shall be available only upon appropriation by the Legislature. (C) If the court determines that its order or judgment has not been carried out within 60 days, the court may issue further orders as provided by law to ensure that the purposes and policies of this section are fulfilled, including, but not limited to, an order to vacate the decision of the local agency and to approve the housing development project, in which case the application for the housing development project, as proposed by the applicant at the time the local agency took the initial action determined to be in violation of this section, along with any standard conditions determined by the court to be generally imposed by the local agency on similar projects, shall be deemed to be approved unless the applicant consents to a different decision or action by the local agency.
(2) For purposes of this subdivision, “housing organization” means a trade or industry group whose local members are primarily engaged in the construction or management of housing units or a nonprofit organization whose mission includes providing or advocating for increased access to housing for low-income households and have filed written or oral comments with the local agency prior to action on the housing development project. A housing organization may only file an action pursuant to this section to challenge the disapproval of a housing development by a local agency. A housing organization shall be entitled to reasonable attorney’s fees and costs if it is the prevailing party in an action to enforce this section. (l) If the court finds that the local agency (1) acted in bad faith when it disapproved or conditionally approved the housing development or emergency shelter in violation of this section and (2) failed to carry out the court’s order or judgment within 60 days as described in subdivision (k), the court, in addition to any other remedies provided by this section, shall multiply the fine determined pursuant to subparagraph (B) of paragraph (1) of subdivision (k) by a factor of five. For purposes of this section, “bad faith” includes, but is not limited to, an action that is frivolous or otherwise entirely without merit.
(m) Any action brought to enforce the provisions of this section shall be brought pursuant to Section 1094.5 of the Code of Civil Procedure, and the local agency shall prepare and certify the record of proceedings in accordance with subdivision (c) of Section 1094.6 of the Code of Civil Procedure no later than 30 days after the petition is served, provided that the cost of preparation of the record shall be borne by the local agency, unless the petitioner elects to prepare the record as provided in subdivision (n) of this section. A petition to enforce the provisions of this section shall be filed and served no later than 90 days from the later of (1) the effective date of a decision of the local agency imposing conditions on, disapproving, or any

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Housing Accountability Act Technical Assistance Advisory 37 other final action on a housing development project or (2) the expiration of the time periods specified in subparagraph (B) of paragraph (5) of subdivision (h). Upon entry of the trial court’s order, a party may, in order to obtain appellate review of the order, file a petition within 20 days after service upon it of a written notice of the entry of the order, or within such further time not exceeding an additional 20 days as the trial court may for good cause allow, or may appeal the judgment or order of the trial court under Section 904.1 of the Code of Civil Procedure. If the local agency appeals the judgment of the trial court, the local agency shall post a bond, in an amount to be determined by the court, to the benefit of the plaintiff if the plaintiff is the project applicant.
(n) In any action, the record of the proceedings before the local agency shall be filed as expeditiously as possible and, notwithstanding Section 1094.6 of the Code of Civil Procedure or subdivision (m) of this section, all or part of the record may be prepared (1) by the petitioner with the petition or petitioner’s points and authorities, (2) by the respondent with respondent’s points and authorities, (3) after payment of costs by the petitioner, or (4) as otherwise directed by the court. If the expense of preparing the record has been borne by the petitioner and the petitioner is the prevailing party, the expense shall be taxable as costs. (o) (1) Subject to paragraphs (2), (6), and (7), and subdivision (d) of Section 65941.1, a housing development project shall be subject only to the ordinances, policies, and standards adopted and in effect when a preliminary application including all of the information required by subdivision (a) of Section 65941.1 was submitted.
(2) Paragraph (1) shall not prohibit a housing development project from being subject to ordinances, policies, and standards adopted after the preliminary application was submitted pursuant to Section 65941.1 in the following circumstances:
(A) In the case of a fee, charge, or other monetary exaction, to an increase resulting from an automatic annual adjustment based on an independently published cost index that is referenced in the ordinance or resolution establishing the fee or other monetary exaction. (B) A preponderance of the evidence in the record establishes that subjecting the housing development project to an ordinance, policy, or standard beyond those in effect when a preliminary application was submitted is necessary to mitigate or avoid a specific, adverse impact upon the public health or safety, as defined in subparagraph (A) of paragraph (1) of subdivision (j), and there is no feasible alternative method to satisfactorily mitigate or avoid the adverse impact.
(C) Subjecting the housing development project to an ordinance, policy, standard, or any other measure, beyond those in effect when a preliminary application was submitted is necessary to avoid or substantially lessen an impact of the project under the California Environmental Quality Act (Division 13 (commencing with Section 21000) of the Public Resources Code). (D) The housing development project has not commenced construction within two and one-half years following the date that the project received final approval. For purposes of this subparagraph, “final approval” means that the housing development project has received all necessary approvals to be eligible to apply for, and obtain, a building permit or permits and either of the following is met:

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Housing Accountability Act Technical Assistance Advisory 38 (i) The expiration of all applicable appeal periods, petition periods, reconsideration periods, or statute of limitations for challenging that final approval without an appeal, petition, request for reconsideration, or legal challenge having been filed.
(ii) If a challenge is filed, that challenge is fully resolved or settled in favor of the housing development project.
(E) The housing development project is revised following submittal of a preliminary application pursuant to Section 65941.1 such that the number of residential units or square footage of construction changes by 20 percent or more, exclusive of any increase resulting from the receipt of a density bonus, incentive, concession, waiver, or similar provision. For purposes of this subdivision, “square footage of construction” means the building area, as defined by the California Building Standards Code (Title 24 of the California Code of Regulations). (3) This subdivision does not prevent a local agency from subjecting the additional units or square footage of construction that result from project revisions occurring after a preliminary application is submitted pursuant to Section 65941.1 to the ordinances, policies, and standards adopted and in effect when the preliminary application was submitted. (4) For purposes of this subdivision, “ordinances, policies, and standards” includes general plan, community plan, specific plan, zoning, design review standards and criteria, subdivision standards and criteria, and any other rules, regulations, requirements, and policies of a local agency, as defined in Section 66000, including those relating to development impact fees, capacity or connection fees or charges, permit or processing fees, and other exactions. (5) This subdivision shall not be construed in a manner that would lessen the restrictions imposed on a local agency, or lessen the protections afforded to a housing development project, that are established by any other law, including any other part of this section. (6) This subdivision shall not restrict the authority of a public agency or local agency to require mitigation measures to lessen the impacts of a housing development project under the California Environmental Quality Act (Division 13 (commencing with Section 21000) of the Public Resources Code).
(7) With respect to completed residential units for which the project approval process is complete and a certificate of occupancy has been issued, nothing in this subdivision shall limit the application of later enacted ordinances, policies, and standards that regulate the use and occupancy of those residential units, such as ordinances relating to rental housing inspection, rent stabilization, restrictions on short-term renting, and business licensing requirements for owners of rental housing.
(8) This subdivision shall become inoperative on January 1, 2025. (p) This section shall be known, and may be cited, as the Housing Accountability Act.

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Attachment: Attachment 5_HCD Technical Assistance Memo [Revision 1] (3584 : Rescinding and Repealing Resolution Nos. R-29-21 and R-84- STATE OF CALIFORNIA - BUSINESS, CONSUMER SERVICES AND HOUSING AGENCY GAVIN NEWSOM, Governor

DEPARTMENT OF HOUSING AND COMMUNITY DEVELOPMENT

DIVISION OF HOUSING POLICY DEVELOPMENT
2020 W. El Camino Avenue, Suite 500
Sacramento, CA 95833
(916) 263-2911 / FAX (916) 263-7453
www.hcd.ca.gov

February 10, 2022

William Smith, City Manager
City of Colton
650 N. La Cadena Drive
Colton, CA 92324

Dear William Smith:

RE: City of Colton Denial of Litton-Brock Hillside Project and Applicability of the Housing Accountability Act and Housing Element Law – Notice of Violation

The California Department of Housing and Community Development (HCD) has reviewed the City of Colton’s (City) denial of the application for the Litton-Brock Hillside Subdivision (referred to as the Project) and has found that in denying the Project, the City has violated the Housing Accountability Act (HAA) (Gov. Code, § 65589.5) and State Housing Element Law (Gov. Code, § 65580 et seq.), as detailed in this letter.

Under Government Code section 65585, HCD must review any action or failure to act that it determines to be inconsistent with either an adopted housing element or Government Code section 65583, and HCD must issue written findings to the locality accordingly. (Gov. Code, § 65585, subd. (i).) Additionally, HCD must notify a locality when that locality takes actions that are in violation of Government Code sections 65589.5 and 65583 and may refer such violations to the California Office of the Attorney General. (Gov. Code, § 65585, subd. (i)(1), (j).)

The City has 30 days to respond to this letter. (Gov. Code, § 65585, subd. (i)(1)(A).) HCD requests that the City provide a written response to these findings no later than March 12, 2022, including, at a minimum, a specific plan for corrective action, including (1) approval of the Project and (2) allowing the Project to move forward with its plans without further delay.

HCD will review and consider the City’s written response, if any, before taking any action authorized by Government Code section 65585, subdivisions (i)(1)(B) or (j), including revocation of housing element compliance and referral to the California Office of the Attorney General.

The Project and the City’s Actions

The Project is an application for the approval of Tentative Tract Map (TTM) No. 18233 and a Conditional Use Permit (CUP) for the development of 81 clustered single-family

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units on 49.39 acres of an approximately 242.8-acre vacant, unimproved hillside located south of Litton Avenue, west of Bostick Avenue, and north of Palm Avenue in the City of Colton (Assessor’s Parcel Nos. 0163351250000, 0163351280000, 0275071150000, 027508101000, and 0275081020000). The Project is a Housing Development Project as defined in Government Code section 65589.5, subdivision (h)(2)(A) and is located on the sites referred to above. These sites are listed in the City’s 5th and 6th Cycle Housing Elements and are being used to meet the City’s Regional Housing Needs Allocation (RHNA) for above-moderate income housing.

On February 23, 2021, the Planning Commission approved Resolution R-08-21, stating that the TTM is consistent and compatible with the General Plan and physically suitable for the type and density of development (City of Colton, Resolution R-08-21, §§ 1.b,

1.c), that the CUP is in accordance with general plan objectives and the purpose of the zone in which the site is located, and that the proposed use under the CUP complies with applicable provisions including the proposed “cluster” development pursuant to the City of Colton’s Zoning Code section 18.04.120 (City of Colton, Resolution R-08-21, §§

2.1, 2.3).

Timely appeals were filed with the City by Richard J. Zaragoza on behalf of the La Loma Hills Alliance. Appeal hearings were held on April 6 and May 4, 2021. On May 4, the City Council adopted Resolution No. R-29-21 and upheld the appeals, reversing the Planning Commission’s February 23 approval, and authorized the Applicant, Modern Homes LLC, to resubmit a revised application addressing City and community concerns.

On June 15, 2021, the applicant submitted a revised application proposing an 81-lot single-family detached clustered development with minor revisions and a 79-lot alternative. On July 6, 2021, the City Council held a public hearing on the revised application, heard testimony, reviewed, and considered the revised application, voted unanimously to deny the Project, and adopted City Council Resolution No. R-84-21 formalizing the denial.

Denial of the Litton-Bostick Hillside Subdivision Project Violates the HAA

The City did not make the required findings under Government Code section 65589.5, subdivision (j), when it denied the Project on July 6, 2021. In failing to make appropriate findings under subdivision (j), the City violated the HAA.

First, as a matter of law, the City deemed the Project consistent and in conformity with applicable, objective general plan, zoning, and subdivision standards and criteria, including design review standards, in effect at the time that the application was deemed complete. Under the HAA, the City was under a mandatory statutory duty to provide the applicant with notice about any inconsistencies within 30 days of the date the application was determined to be complete. On this point, the HAA is clear:

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If the local agency considers a proposed housing development project to be inconsistent, not in compliance, or not in conformity with an applicable plan, program, policy, ordinance, standard, requirement, or other similar provision as specified in this subdivision, it shall provide the applicant with written documentation identifying the provision or provisions, and an explanation of the reason or reasons it considers the housing development to be inconsistent, not in compliance, or not in conformity as follows:

Within 30 days of the date that the application for the housing development project is determined to be complete if the housing development project contains 150 or fewer housing units.

(Gov. Code, § 65589.5, subds. (j)(2)(A)(i).)

As HCD understands it, the City neither identified nor notified the applicant of any such inconsistencies prior to or after February 23, 2021, which was when the application was initially approved by the Planning Commission, nor did the City notify the applicant on or before July 6, 2021, when the Project was denied by the City Council. Thus, as a matter of law, the housing development project is deemed consistent, compliant, and in conformity pursuant to Government Code section 65589.5, subdivision (j)(2)(B).

Second, projects that comply with applicable, objective general plan, zoning, and subdivision standards and criteria may only be denied in very limited circumstances.

Where the local agency proposes to disapprove such a project, or to impose a condition that the project be developed at a lower density, the local agency shall base its decision upon written findings supported by a preponderance of the evidence on the record that both of the following conditions exist:

The housing development 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

There is no feasible method to satisfactorily mitigate or avoid the adverse impact identified pursuant to paragraph (1), other than the disapproval of the housing development project or the approval of the project upon the condition that it be developed at a lower density.

(Gov. Code, § 65589.5, subds. (j)(1)(A) and (B).) As used in this paragraph, “a ‘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, subd. (j)(1)(A).) However, the City failed to make these required findings pursuant to Government Code subsections (j)(1)(A) and (j)(1)(B).

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Attachment: Attachment 6_February 10, 2022 HCD Notice of Violation [Revision 1] (3584 : Rescinding and Repealing Resolution Nos. R-29-21 William Smith, City Manager

Instead, the City denied the TTM under subdivision (j), stating that the proposed use is inconsistent with the General Plan, the objectives of the Zoning Ordinance, and the purposes of the zone in which the site is located (City of Colton, Resolution R-84-21, §§

2.A, 2.B, and 2.C). The City also denied the CUP stating that the proposed use is inconsistent with the General Plan, the objectives of the Zoning Ordinance, and the purposes of the zone in which the site is located (City of Colton, Resolution R-84-21, §§

3.A, 3.B, and 3.C). However, because the City had failed to make such findings within 30 days of the application being deemed complete, the project was deemed consistent with objective standards, as explained above. Therefore, the only finding that would have been available to the City pursuant to Government Code section 65589.5, subdivision (j), was that the housing development project would have a specific, unmitigable 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. In denying the project, the City failed to make the only possible finding available to it. Specifically, the City failed to provide written findings based on a preponderance of the evidence on record that the Project would have a specific, adverse impact upon public health or safety and that there is no feasible method to satisfactorily mitigate or avoid the impact.

As a result, HCD finds that the City improperly denied the Project in violation of the HAA. (Gov. Code, § 65589.5.)

Denial of the Litton-Brock Hillside Development Project Fails to Implement Housing Element Goals, Policies, and Programs

Denial of the Project also fails to implement multiple goals, policies, and programs of the City’s 5th Cycle Housing Element, which was operative when the City acted, and the now-adopted 6th Cycle Housing Element. Relevant goals, policies, and programs in the 5th Cycle Housing Element (which are nearly identical to those in the adopted 6th Cycle Housing Element) include, but are not limited to:

• Provide “Move Up” Housing Opportunities: “What the City lacks is housing opportunities for current residents who are able and look to move up to higher- quality housing within this community where they have deep roots, and for higher-income households from outside the community who wish to move to Colton …. Until it provides opportunities for and incentives to the development community to build homes for such households to live, overall housing conditions will continue to suffer, and the City will be unable to establish a broader market for non-residential investment.” (Pages 14-15.)
• GOAL H-1: “Provide opportunities for the development of quality housing for households at and above the median income – housing that does not currently exist in the City in sufficient quantities.” (Page 15.)

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• Provide Adequate Housing Sites: “A major element in meeting the [City of] Colton’s housing needs is designating sites citywide to accommodate all types, sizes, and prices of housing. Persons and households of different ages, incomes, and lifestyles have varying housing needs and preferences that evolve over time and in response to changing life circumstances. The Colton General Plan Land Use Policy Map and Zoning Code establish where housing may be located.” (Page 20.)
• GOAL H-4: “Provide suitable sites for housing development which can accommodate a range of housing by type, size, location, price, and tenure.” (Page 20.)
• Policy H-4.2: “Encourage development of residential uses in strategic proximity to employment, recreational facilities, schools, neighborhood commercial areas, and transportation routes.” (Page 20.)
• Policy H-4.3: “Encourage compatible residential development in areas where land use policies support higher densities.” (Page 20.) • Policy H-4.4: “Allow flexibility in the City’s standards and regulations to encourage a variety of housing types.” (Page 20.)
• Program 9, Provision of Adequate Sites: “… Appendix D indicates that the City can accommodate the level of housing development identified in the RHNA for all income levels.” (Page 20.)
• Program 9, Objectives:
 “Encourage new development to be constructed to maximize the density potential of limited land resources, with the goal of promoting residential densities that achieve at least 80 percent of the maximum allowable density for the specific property.” (Pages 20-21.)
 “Continue to provide a variety of incentives to facilitate the development of vacant and underutilized properties. These include the planned development/cluster bonus, site area bonus, and affordable housing bonus.” (Page 21.)

In addition, by denying a project located on sites identified in the City’s 5th and 6th Cycle Housing Elements that are used to accommodate RHNA for above moderate- income levels, the City has acted contrary to its housing element commitments and failed to implement the housing element goals, policies, and programs noted above.

Consequences of Lack of Compliance with State Housing Element Law

Housing availability is a critical issue with statewide implications, and most housing decisions occur at the local level. Housing elements are essential to developing a blueprint for growth and are a vital tool to address California’s prolonged housing crisis.

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As such, state law has established clear penalties for local jurisdictions that fail to comply with State Housing Element Law.

First, noncompliance will result in ineligibility or delay in receiving state funds that require a compliant housing element as a prerequisite, including, but not limited to, the following:

• Permanent Local Housing Allocation,
• Local Housing Trust Fund Program,
• Infill Infrastructure Grant Program,
• SB 1 Caltrans Sustainable Communities Grants, and
• Affordable Housing and Sustainable Communities Program.

Second, jurisdictions that do not meet their housing element requirements may face additional financial and legal ramifications. HCD may notify the California Office of the Attorney General, which may bring suit for violations of State Housing Element Law.

Further, statute provides for court-imposed penalties for persistent noncompliance, including financial penalties. Government Code section 65585, subdivision (l)(1), establishes a minimum fine of $10,000 per month and up to $100,000 per month. If a jurisdiction continues to remain noncompliant, a court can multiply the penalties up to a factor of six. Other potential ramifications could include the loss of local land use authority to a court-appointed agent.

In addition to these legal remedies available in the courts, under the HAA (Gov. Code § 65589.5, subd. (d)), jurisdictions without a substantially compliant housing element cannot use inconsistency with zoning and general plan standards as reasons for denial of a housing project for very low-, low-, or moderate-income households.1

Conclusion

HCD finds that, by improperly denying the Litton-Brock housing development project, the City is in violation of the HAA (Gov. Code, § 65589.5.) and State Housing Element Law (Gov. Code, § 65585). Under Government Code section 65585, subdivision (i), HCD must give the City a reasonable time, no longer than 30 days, to respond to these findings. HCD provides the City until March 11, 2022, to provide a written response to these findings before taking any of the actions authorized by section 65585, including, but not limited to, referral to the California Office of the Attorney General.

As stated above, the City’s response should include, at a minimum, a specific plan and timeline for corrective action, including (1) approval of the Project and (2) allowing the Project to move forward with its plans without further delay.

1 For purposes of the Housing Accountability Act, housing for very low-, low-, or moderate-income households is defined as having at least 20% of units set aside for low-income residents or 100% of units set aside for moderate- or middle- income residents (Gov. Code § 65589.5, subd. (h)(3)).

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Attachment: Attachment 6_February 10, 2022 HCD Notice of Violation [Revision 1] (3584 : Rescinding and Repealing Resolution Nos. R-29-21 William Smith, City Manager

If you have any questions or would like to discuss the content of this letter, please contact John Buettner of our staff at [email protected]
.

Sincerely,

David Zisser
Assistant Deputy Director
Local Government Relations and Accountability

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Attachment: Attachment 6_February 10, 2022 HCD Notice of Violation [Revision 1] (3584 : Rescinding and Repealing Resolution Nos. R-29-21 /0/1/i255/3/4/5/6/7/8/9/i255/10/11/8/11/7/9/12/i255/10/13/14/15/8/11/7/9/i255/16/17/7/5/i255/18/13/14/9/11/15/6 /19/20/21/21/20/22/23/i255/25/26/21/27/28/29/i255/28/29/i255/30/31/32/i255/33/34/i255/35/36/35/35 /30/27/27/28/32/29/37/38/i255/39/37/29/37/32/22/21/34/i255/40/29/41/20/29/20/27/22/42/34/i255/25/32/37/42/29/28/34/i255/43/28/26/42/20/29/44/34/i255/45/22/42/22/46/37/29/22/34/i255/19/28/28/46/42/20/46/37 /45/32/37/47/20/28/26/42/i255/48/i255/49/37/50/27
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ITEM NO. 2

STAFF REPORT

DATE: APRIL 19, 2022
TO: HONORABLE MAYOR AND CITY COUNCIL MEMBERS
FROM: BILL SMITH, CITY MANAGER
PREPARED BY: HANK DOMINGUEZ, POLICE CHIEF
SUBJECT: TIME AND PLACE FIXED TO CONSIDER A PUBLIC HEARING TO INTRODUCE BY TITLE ONLY ORDINANCE NO. O-05-22, AN

ORDINANCE OF THE CITY COUNCIL OF THE CITY OF COLTON,

CALIFORNIA, ADOPTING A MILITARY EQUIPMENT USE
POLICY, IN ACCORDANCE WITH ASSEMBLY BILL 481,
ORDINANCE NO. O-05-22.

RECOMMENDED ACTION

Staff recommends that the City Council take the following action:

The City Council take the following action: Waive Full Reading, Read by Title Only, and Introduce First Reading Ordinance No. O-05-22 entitled:

AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF COLTON, CALIFORNIA,

ADOPTING A MILITARY EQUIPMENT USE POLICY, IN ACCORDANCE WITH ASSEMBLY BILL 481.

BACKGROUND

On September 30, 2021, Governor Newsom signed into law Assembly Bill 481 (AB 481), which was authored by Assembly Member David Chieu (D-San Francisco) and codified in Government Code sections 7070 through 7075, to address the funding, acquisition and use of items lawmakers deem to be considered military equipment.

The bill requires state, county and local law enforcement agencies to obtain approval of the applicable governing bo dy, by adoption of a military equipment use policy, as specified, by ordinance at a regular meeting held pursuant to specified open meeting laws, prior to taking

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Policy - Use of Military Equipment by Police Department April 19, 2022

certain actions relating to the funding, acquisition, or use of military equipment, as defined . AB 481 requires similar approval for the continued use of military equipment acquired by the Colton Police Department prior to January 1, 2022 and allows the governing body to approve funding, acquisition, or use of military equipment within its jurisdic tion only of it determines that the equipment meets specified standards. AB 481 requires each law enforcement agency’s governing body to commence the process of adopting a written military equipment use policy by ordinance in a public forum before May 1, 2022.

Proposed Ordinance No. O -05-22 and the attached Colton Police Department Policy 707 – Military Equipment, meet the requirements of AB 481 and will allow the Police Department to continue to use the vital equipment specified herein, as well as fund a nd acquire future equipment deemed military equipment, as outlined in AB 481 and Government Code 7070 through 7075.

ISSUES/ANALYSIS

Law enforcement incidents can be unpredictable and complex. In order to de-escalate violent and tense situations at times special equipment, tools or resources may be necessary to reduce the possibility of harm to community members, individuals directly involved in the incident and officers and increase the likelihood of a positive outcome. Military equipment, as that term is defined by statute, includes, but is not limited to, unmanned aerial (i.e., drones) or ground vehicles, bulletproof vehicles, pepper balls, less lethal 40mm projectile launchers and distraction devices. These tools have been tested in the field and are us ed to help enhance citizen safety, officer safety and reduce the need for escalation of force. They are commonly utilized by law enforcement and their use is considered best practices. The Colton Police Department (“Department”) has not discovered other re asonable alternatives for these tools that can achieve the same objectives of community member safety and officer safety.

The Department is committed to utilizing equipment that helps to safeguard the community and reduce the risk of escalating volatile situations that might rise to the level of a lethal encounter.

The proposed Ordinance No. O -05-22 and AB 481 Policy provide for safeguards to the public’s safety, welfare, and civil rights and ensures transparency, oversight and accountability measures are in place. As examples, the Department will be required to conduct annual audits of the equipment to ensure compliance with the policy, annually report to City Council the use of this equipment, and seek approval prior to additional military equipment.

Without approval of Ordinance O -05-22 the Department will be forced to cease the use of the equipment designated by AB 481 on April 30, 2022. This would severely limit the Department’s ability to respond to and safeguard citizens during critical incident s such as active shooters,

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barricaded subjects, civil unrest, hostage situations, or terrorist attacks; this would include the ability to respond to and receive mutual aid.

FISCAL IMPACTS

Adoption of Ordinance No. O-05-22 and CPD Policy 707 would create no direct fiscal impact to the General Fund.

ALTERNATIVES

Provide alternative direction to staff.

ATTACHMENT

1. Policy 707 Colton Military Equipment Use Policy

2. Ordinance O-05-22, Certification, Policy 707

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Policy
707
City of Colton Police Department
Colton PD Policy Manual
Copyright Lexipol, LLC 2022/03/16, All Rights Reserved.

Published with permission by City of Colton Police Department ***DRAFT*** Military Equipment Use Policy - 1 Military Equipment Use Policy
707.1 PURPOSE AND SCOPE
The purpose of this policy ("Policy")is to provide guidelines for the approval, acquisition, and reporting requirements of military equipment pursuant to Assembly Bill 481 ("AB 481") (California Government Code § 7070, et seq.)
707.1.1 DEFINITIONS
Definitions related to this Policy include ((those provided in Government Code section 7070, and as follows:

Governing body – The City of Colton City Council ("City Council") Military equipment – Includes but is not limited to the following:
• Unmanned, remotely piloted, powered aerial or ground vehicles. • Mine-resistant ambush-protected (MRAP) vehicles or armored personnel carriers. • High mobility multipurpose wheeled vehicles (HMMWV), two-and-one-half-ton trucks, five-ton trucks, or wheeled vehicles that have a breaching or entry apparatus attached. • Tracked armored vehicles that provide ballistic protection to their occupants. • Command and control vehicles that are either built or modified to facilitate the operational control and direction of public safety units. • Weaponized aircraft, vessels, or vehicles of any kind. • Battering rams, slugs, and breaching apparatuses that are explosive in nature. This does not include a handheld, one-person ram.
• Firearms and ammunition of_.50 caliber or greater, excluding standard-issue shotguns and standard-issue shotgun ammunition.
• Specialized firearms and ammunition of less than_.50 caliber, including firearms and accessories identified as assault weapons in Penal Codesection 30510 and Penal Code section 30515, with the exception of standard-issue firearms. • Any firearm or firearm accessory that is designed to launch explosive projectiles. • Noise-flash diversionary devices and explosive breaching tools. • Munitions containing tear gas or OC, excluding standard, service-issued handheld pepper spray.
• TASER® Shockwave, microwave weapons, water cannons, and long-range acoustic devices (LRADs).
• Kinetic energy weapons and munitions.
• Any other equipment as determined by the City Council to require additional oversight.

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Attachment: Policy 707 Colton Military Equipment Use Policy (3550 : Policy - Use of Military Equipment by Police Department) City of Colton Police Department
Colton PD Policy Manual
Military Equipment Use Policy
Copyright Lexipol, LLC 2022/03/16, All Rights Reserved.

Published with permission by City of Colton Police Department ***DRAFT*** Military Equipment Use Policy - 2 707.2 POLICY
It is the Policy of the City of Colton Police Department that members of this department comply with the provisions of AB 481 with respect to the funding, acquisition and use of military equipment. 707.3 MILITARY EQUIPMENT COORDINATOR
The Chief of Police should designate a member of this department to act as the military equipment coordinator. The responsibilities of the military equipment coordinator include but are not limited to:
(a) Acting as liaison to the City Council for matters related to the requirements of this policy.
(b) Identifying department equipment that qualifies as military equipment in the current possession of the Department, or the equipment the Department intends to acquire that requires approval by the City Council.
(c) Conducting an inventory of all military equipment at least annually. (d) Collaborating with any allied agency that may use military equipment within the jurisdiction of City of Colton Police Department.
(e) Preparing for, scheduling, and coordinating the annual community engagement meeting to include:

1. Publicizing the details of the meeting; and.

2. Preparing for public questions regarding the department's funding, acquisition, and use of equipment.
(f) Preparing the annual military equipment report for submission to the Chief of Police and ensuring that the report is made available on the department website. (g) Establishing the procedure for a person to register a complaint or concern, or how that person may submit a question about the use of a type of military equipment, and how the Department will respond in a timely manner.
707.4 MILITARY EQUIPMENT INVENTORY
The list of qualifying military equipment for the Department is attached to this Policy:

See attachment: COLTON POLICE MILITARY EQUIPMENT INVENTORY.pdf 707.5 APPROVAL
The Chief of Police or the authorized designee shall obtain approval from the City Council by way of an ordinance adopting this Policy. As part of the approval process, the Chief of Police or the authorized designee shall ensure the proposed Policy is submitted to the City Council and is available on the department website at least thirty (30) days prior to any public hearing concerning the Policy. The Policy must be approved by the governing body prior to engaging in any of the following:
(a) Requesting military equipment made available pursuant to 10 USC § 2576(a).

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Attachment: Policy 707 Colton Military Equipment Use Policy (3550 : Policy - Use of Military Equipment by Police Department) City of Colton Police Department
Colton PD Policy Manual
Military Equipment Use Policy
Copyright Lexipol, LLC 2022/03/16, All Rights Reserved.

Published with permission by City of Colton Police Department ***DRAFT*** Military Equipment Use Policy - 3 (b) Seeking funds for military equipment, including but not limited to applying for a grant, soliciting or accepting private, local, state, or federal funds, in-kind donations, or other donations or transfers.
(c) Acquiring military equipment either permanently or temporarily, including by borrowing or leasing.
(d) Collaborating with another law enforcement agency in the deployment or other use of military equipment within the jurisdiction of this department. (e) Using any new or existing military equipment for a purpose, in a manner, or by a person not previously approved by the City Council.
(f) Soliciting or responding to a proposal for, or entering into an agreement with, any other person or entity to seek funds for, apply to receive, acquire, use, or collaborate in the use of military equipment.
(g) Acquiring military equipment through any means not provided above. 707.6 COORDINATION WITH OTHER JURISDICTIONS
Military equipment used by any member of this Department shall be approved for the use and in accordance with this Department Policy. Military equipment used by other jurisdictions that are providing mutual aid to the City of Colton, or otherwise engaged in law enforcement operations in this City, shall comply with their respective military equipment use policies in rendering mutual aid or carrying out a law enforcement function related to a criminal matter under their investigation. 707.7 ANNUAL REPORT
Upon approval of this Policy, the Chief of Police or the authorized designee should submit a military equipment report to the City Council for each type of military equipment approved within one year of approval, and annually thereafter for as long as the military equipment is available for use.

The Chief of Police or the authorized designee should also make each annual military equipment report publicly available on the department website for as long as the military equipment is available for use. The report shall include all information required by Government Code section 7072 for the preceding calendar year for each type of military equipment in department inventory. 707.8 COMMUNITY ENGAGEMENT
Within 30 days of submitting and publicly releasing the annual report, the Department shall hold at least one well-publicized and conveniently located community engagement meeting, at which the Department should discuss the report and respond to public questions regarding the funding, acquisition, or use of military equipment.

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Attachment: Policy 707 Colton Military Equipment Use Policy (3550 : Policy - Use of Military Equipment by Police Department) Colton PD Policy Manual
Copyright Lexipol, LLC 2022/03/16, All Rights Reserved.

Published with permission by City of Colton Police Department ***DRAFT*** Attachments - 4 Attachments

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Attachment: Policy 707 Colton Military Equipment Use Policy (3550 : Policy - Use of Military Equipment by Police Department) Attachment
Colton PD Policy Manual
Copyright Lexipol, LLC 2022/03/16, All Rights Reserved.

Published with permission by City of Colton Police Department ***DRAFT*** COLTON POLICE MILITARY EQUIPMENT
INVENTORY.pdf - 5

COLTON POLICE MILITARY
EQUIPMENT INVENTORY.pdf
COLTON POLICE MILITARY EQUIPMENT INVENTORY.pdf

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ITEM NO. 3

STAFF REPORT

DATE: APRIL 19, 2022
TO: HONORABLE MAYOR AND CITY COUNCIL MEMBERS
FROM: BILL SMITH, CITY MANAGER
PREPARED BY: MARK TOMICH, DIRECTOR
SUBJECT: CONTINUE PUBLIC HEARING: SUBDIVISION ORDINANCE UPDATE AND SB 9, ORDINANCE NO. O-01-22.

RECOMMENDED ACTION

Staff recommends that the City Council take the following action:

Continue public hearing to the May 3, 2022 City Council meeting.

Continue public hearing to the May 3, 2022 City Council meeting in order to provide sufficient time for City Attorney review of edits to Subdivision Ordinance.

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ITEM NO. 4

STAFF REPORT

DATE: APRIL 19, 2022
TO: HONORABLE MAYOR AND CITY COUNCIL MEMBERS
FROM: BILL SMITH, CITY MANAGER
PREPARED BY: CAROLINA PADILLA, CITY CLERK
SUBJECT: APPROVAL OF MINUTES FOR THE CITY COUNCIL REGULAR MEETING HELD ON APRIL 5, 2022, ON FILE IN THE OFFICE OF THE CITY CLERK.

RECOMMENDED ACTION

Staff recommends that the City Council take the following action:

Approval of Minutes for the City Council Regular Meeting Held on April 5, 2022.

BACKGROUND

Minutes for the City Council Regular Meeting Held on THIS DATE

FISCAL IMPACTS

None

ATTACHMENT

1. 04-05-2022 Draft Minutes
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2022 APRIL 05 CC/CUA/CPFA/CHA MEETING 1 -

CITY COUNCIL/COLTON UTILITY AUTHORITY/

COLTON PUBLIC FINANCING AUTHORITY AND COLTON HOUSING AUTHORITY

CLOSED SESSION MINUTES

April 5, 2022

Closed Session Meeting held on the above given date at 5:00 p.m., in City Hall, located at 650 North La Cadena Drive, Colton, California with Mayor Navarro presiding.

CITY COUNCIL ROLL CALL
Councilmembers present were Toro, Cisneros, Koperski, González, Echevarria, Suchil; and Mayor Navarro.

STAFF PRESENT
City Manager Smith, City Attorney Campos, and City Clerk Padilla.

PUBLIC COMMENT
None

CLOSED SESSION
City Attorney Campos announced the City Council would meet in Closed Session to Discuss Item A/B/C/D.

CM Suchil Announcement – Item C
Councilmember Suchil recused himself from the closed session meeting due to a co nflict of interest; he is precluded from considering the closed session Item C as a member of the body, by virtue of his ownership of property within 500 feet of the project site related to the item before Council.

C. CONFERENCE WITH LEGAL COUNSEL - EXISTING LITIGATION
Pursuant to Government Code Section 54956.9(d)(1)
Modern Pacific Homes, LLC. V. City of Colton, et al.,
San Bernardino Superior Court, Case No. CIVSB2120518

Item C – Discussed first and then CM Suc hil entered Closed Session at 5:11 p.m.; r emained for the balance of the Closed Session Agenda: Item A/B/D;

A. CONFERENCE WITH LEGAL COUNSEL - EXISTING LITIGATION
Pursuant to Government Code Section 54956.9(d)(1)
Oliveri v. City of Colton
San Bernardino Superior Court, Case No. CIVDS 2003984
B. CONFERENCE WITH LEGAL COUNSEL- EXISTING LITIGATION
Pursuant to Government Code Section 54956.9(d)(1)
Montoya v. City of Colton
San Bernardino Superior Court, Case No. CIVDS 2003863

D. CONFERENCE WITH LEGAL COUNSEL - POTENTIAL LITIGATION (Government Code section 54956.9(d)(2))
One (1) Potential Case

Mayor Navarro adjourned the meeting to Closed Session at 5:01 p.m. and at 6:01 p.m., the meeting reconvened, with all members present heretofore.

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City Attorney Campos announced that the City Council did meet in Closed Session and discussed Item A/B/C/D; with direction to staff and no reportable action.

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CITY COUNCIL/COLTON UTILITY AUTHORITY/

COLTON PUBLIC FINANCING AUTHORITY AND COLTON HOUSING AUTHORITY

REGULAR MEETING MINUTES

April 5, 2022

Regular Meeting held on the above-given date at 6:01 p.m. in City Hall, located at 650 North La Cadena Drive, Colton, California with Mayor Navarro presiding.

INVOCATION: Pastor Tasaka - The Vineyard Church
FLAG SALUTE: American Legion Post 155 Members Louie Barrera and Steve Ferrance

CITY COUNCIL ROLL CALL

Council Members Present Staff Present
Frank J. Navarro, Mayor William R. Smith, City Manager David J. Toro Carlos Campos, City Attorney
Ernest R. Cisneros Carolina R. Padilla, City Clerk Kenneth J. Koperski
Dr. Luis S. González
John R. Echevarria
Isaac T. Suchil

Council Members Absent
None

CEREMONIAL MATTERS
Presentations, Awards, Proclamations

 Proclamation- DMV/April Donate Life Month
CM Echevarria read a Proclamation Certificate – DMV/Donate Life Month; accepted by Mrs. Strickland DMV representative.

 Presentation - Life Saving Award
Mayor Navarro presented the Life Saving Award Certificate to City of Colton Fire Chi ef McHargue; accepted by Chief McHargue; Fire Marshall Ray Bruno presented the Colton Fire Department ‘Challenge Coin’ issued to person(s) who have demonstrated an act that is above and beyond their assigned job duty; this was demonstrated by Chief McHargue on February 16, 2022; administered lifesaving techniques.

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MAYOR AND COUNCIL ITEMS

POSSIBLE CONFLICT OF INTEREST DISCLOSURES FOR THE COUNCIL MEETING OF APRIL 5 , 2022.

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GIFT DISCLOSURES
Mayor Navarro asked the members present if there were any agenda items that were a conflict of interest pursuant to CMC Section 2.04.030. None disclosed.

AB 1234 ORAL REPORTS
Mayor Navarro asked the members present if there were any brief reports on meetings attended at the expense of the City. (GC Section 53232.3(d).

CM Cisneros/CM González/CM Suchil attended the Inland Empire Caucus 18 th Annual Legislative Breakfast, held on March 25, 2022, at the Doubletree Hilton, Ontario, CA.

APPOINTMENTS

 D1 Utilities Commission Appointment- Colin Strange
CM Toro introduce the Utilities Commission Appointment for Colin Strange.

No objection by Councilmembers present; so ratified.

MAYOR AND COUNCIL DISCUSSION ITEMS

 Building Color Policy
CM González introduced for discussion and consensus a Building Color Policy.

Council Discussion
Discernment and discussion between Mayor and Councilmembers present, with clarification provide by CM González.

Mayor Navarro asked for consensus to refer item to staff and pla ce as an agenda item Building Color Policy for discussion and possible Council action; CM Toro/CM Echevarria – NO; balance of councilmembers present in agreement with direction to staff.

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PUBLIC HEARINGS

(1) Warehouse and Truck and Trailer Storage/Parking ZTA and Direction Regarding Moratorium Extension

TIME AND PLACE FIXED TO CONSIDER A PUBLIC HEARING TO INTRODUCE BY TITLE ONLY ORDINANCE NO. O -06-22, AN ORDINANCE OF THE CITY CO UNCIL OF THE CITY OF COLTON, CALIFORNIA, TO AMEND, CERTAIN SECTIONS IN CHAPTERS 18.04; 18.06; 18.24,

18.26, 18.28, AND 18.48 OF TITLE 18 (ZONING) OF THE COLTON MUNICIPAL CODE

RELATED TO DEFINITIONS, PERMITTED USES, DEVELOPMENT STANDARDS IN THE I -P (INDUSTRIAL PARK), M -1 (LIGHT INDUSTRIAL) AND M -2 (HEAVY INDUSTRIAL) ZONES, AND SPECIAL PROVISIONS (FILE INDEX NO. DAP-001-697), ORDINANCE NO. O-06-22.

Mayor Navarro declared the Public Hearing open.

City Clerk Padilla submitted the Notice of the Public Hearing (on file in the City Clerk’s Office) and there were no reports of protests or objections thereto.

Staff Presentation
Director Mark Tomich presented for Council consideration an overview of the agenda item and requested approval of staff’s recommendation.

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Public Comment
The following community members addressed the Council: Bill Blankenship; and Darby Osnaya.

Motion and Second by CM González to close the public hearing.

Vote: Unanimous

Council Discussion
Discernment and discussion between Mayor and Councilmembers present, with clarification provide by staff:

Director Tomich; and Planning Manager Mario Suarez;

Motion and Second by CM Cisneros/CM Toro to waive full reading, read by title only and introduce Ordinance No. O-06-22.

Substitute Motion
Motion and Second by CM Suchil/CM Echevarria to return Ordinance No. O -06-22 to staff; regarding setback footage; and extension of moratorium.

Vote: Motion carried with CM Cisneros voting – NO.

First Motion
First Motion is moot and no vote taken.

BUSINESS ITEMS

(2) Residential Organic Recycling Workshop - Discussion and Possible Direction to Staff Regarding Residential Organics Program and SB1383 Compliance.

Staff Presentation
Director Brian Dickinson presented for Council discussion/direction to staff; outlined staff recommendation for support of Option A.

Council Discussion
Discernment and discussion between Mayor and Councilmembers present, with clarification provide by staff:

Director Dickinson; CR&R Representative; and City Manager Smith.

Direction to Staff
Full consensus of Mayor and Councilmembers present to support staff’s recommendation as outlined.

*************************************************************************** Public Comment
The following community members addressed the Council: Pam Lemos; Jessica Sutorus; Veronica Gonzales; Candy Vasquez; William Sanchez; Francisco Ceja; Jackie Ficarotta; John Baca; Linda Fernandez; Celeste Carlos; Maxine Conley; Bobbie Forbes; Justin Clifton; and Christine Irish-Ré.

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CONSENT CALENDAR
Mayor Navarro presents the Consent Calendar Items 3 through 18.

Councilmembers present selected items for discussion and clarification by staff: CM González, Item 5; and CM Echevarria, Item 15.

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Motion and Second by CM González/CM Toro to approve the consent calendar Item 3 through 18.

Vote: Unanimous

(3) Minutes - Approval of Minutes for the City Council Regular Meeting held on March 15, 2022, on file in the Office of the City Clerk.

(4) Warrants - Approve US Bank voucher dated 02/25/2022 and totaling $21,301.91; voucher numbers 197714 to 197824 dated 03/03/2022 and totaling $1,398,751.26; replacement checks dated 03/08/2022 and totaling $906.05; voucher numbers 197827 to 197959 dated 03/10/2022 a nd totaling $458,791.17; voucher numbers 197960 to 198099 dated 03/17/2022 and totaling $198,326.69; replacement checks dated 03/21/2022 and totaling $27,908.13; voucher numbers 198106 to 198232 dated 03/24/2022 and totaling $4,475,537.69; payroll disburse ment listing dated 01/22/2022 to 02/04/2022 and totaling $842,830.46 and a payroll disbursement listing dated 02/05/2022 to 02/18/2022 and totaling $912,470.49.

(5) City Treasurer's Report - Receive and File City Treasurer's Report for January 2022.

(6) Contract Amendment - Engineering Resources of Southern California - Approve Amendment to Professional Services Agreement (PSA) for Engineering Services with Engineering Resources of Southern California for Fiscal Year 21/22.

(7) Contract Amendment - Fire Apparatus Solutions - Approve an Amendment to the Current Fire Apparatus Solutions Contract and Approve and Adopt Resolution No. R -29-22 to Amend the FY 2021 - 22 Budget to Increase Appropriations, RESOLUTION NO. R-29-22.

(8) Contract Award - NBS - Approve Contract Award to NBS for Water and Wastewater Rates and Fees Studies.

(9) Contract Amendment - Dennis Grubb & Associates - Approve a Contract Amendment with Dennis Grubb & Associates for Fire Plan Check Services and Amend the FY2021 -22 budget to Appropri ate Funds for the Contract Amendment, RESOLUTION NO. R-36-22.

(10) Emergency Update - M Street Line Repair - Approve M Street Line Repair Emergency Update and Continuance of Emergency.

(11) Emergency Work Complete - Century Substation - Approve Notice of Completion for Emergency Work at Century Substation Complete.

(12) Enterprise Licensing Agreement - Microsoft 365 - Approve Agreement with the California Department of Technology (CDT) for Microsoft 365 Enterprise Licensing.

(13) Obsolete Records Destruction - Approve and Adopt a Resolution Authorizing the Destruction of Certain Obsolete Records, RESOLUTION NO. R-26-22.

(14) Purchase - Fire Department Ladder Truck - Approve and Adopt Resolution No. R -27-22 to Authorize the Purchase of a 2023 KME Tractor Drawn Aerial Ladder Truck for the Fire Department, RESOLUTION NO. R-27-22.

(15) Program Supplement Agreement - Guardrail Repair Project - Approve and Adopt Resolution No. R -34- 22 and R -35-22 to Approve Program Supplement Agreement No. 000000Z43 for the H SIP Funded –

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Guardrail Replacement Project and to Amend the FY2021 -22 Budget, RESOLUTION NO. R -34-22, RESOLUTION NO. R-35-22.

(16) Parking Restriction - Via De La Zanja Lane - Approve and Adopt Resolution No. R -30-22 to Authorize Parking Restrictions alon g Via De La Zanja Lane from Washington Street to the South End, RESOLUTION NO. R-30-22.

(17) Warehouse Moratorium - 10-day Report - Receive and File the 10 -Day Report Regarding the Warehouse Moratorium.

(18) Resolution - Military Banner Policy - Approve and Adopt a Resolution Updating the Military Banner Program Policy and Guidelines, RESOLUTION NO. R-23-22.

MAYOR AND COUNCIL ORAL REPORTS AND COMMENTS
Comments from Mayor, Council and City Treasurer on various issues and activities throughout the community.

CITY MANAGER'S REPORTS
None

ADJOURNMENT
At 8:17 p.m.. Mayor Navarro adjourned the Regular Council Meeting.

_________________________________
Carolina R. Padilla
City Clerk

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ITEM NO. 5

STAFF REPORT

DATE: APRIL 19, 2022
TO: HONORABLE MAYOR AND CITY COUNCIL MEMBERS
FROM: BILL SMITH, CITY MANAGER
PREPARED BY: STACEY DABBS, FINANCE DIRECTOR
SUBJECT: APPROVE VOUCHER NUMBERS 198233 TO 198316 DATED 03/28/2022 AND TOTALING $76,682.45; VOUCHER NUMBERS
198317 TO 198431 DATED 03/31/2022 AND TOTALING $1,291,883.40 AND A PAYROLL DISBURSEMENT LISTING DATED 02/19/2022
TO 03/04/2022 AND TOTALING $948,895.75.

RECOMMENDED ACTION

Staff recommends that the City Council take the following action:

Approve voucher numbers 198233 to 198316 dated 03/28/2022 and totaling $76,682.45; voucher numbers 198317 to 198431 dated 03/31/2022 and totaling $1,291,883.40 and a payroll disbursement listing dated 02/19/2022 to 03/04/2022 and totaling $948,895.75.

BACKGROUND

The California Government Code requires that the legislative body ratify all vouchers issued in the course of conducting City business.

ISSUES/ANALYSIS

All vouchers and related backup documentation have been reviewed by the City Treasurer.

FISCAL IMPACTS

None.

ALTERNATIVES

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Staff Report to the Mayor and City Council
Warrants - Accounts Payable
April 19, 2022

1. Provide alternative direction to staff.

ATTACHMENT

1. Fund Number and Title Legend

2. Voucher lists

3. Payroll Register
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City of Colton
Fund Number and Title Legend
Fund Title Fund Title
100 GENERAL FUND 701 LLMD #2
150 TREASURERS ACCOUNT GROUP 702 LLMD #1
206 COMMUN ITY CHILD CARE 703 CFO 87-1 DEBT SERV ICE
209 DSF FLY CONSERVATION 704 CFO 87-1 CONSTRUCT ION
210 SPECIAL GAS TAX 707 CFO 88-1 DEBT SERV ICE
211 LIBRARY GRANT FUND 708 CFO 88-1 CONSTRUCTION
212 STATE TRAFFIC RELIEF FUND 709 DSF FLY CONSERVATION
213 S.Y.E.T .P. GRANT 722 STORM WATER
214 POLLUT ION REDUCT ION FUND 733 CFO 89-1 CONSTRUCT ION 215 COMMUNITY DEV ACT FUND 734 CFO 89-2 CONSTRUCT ION
216 CDBG HOUS ING REHAB FUND 744 CFO 89-1 DEBT SERV ICE 217 DRUG/GANG INTERVENTION 745 CFO 89-2 DEBT SERV ICE
218 MEASURE I FUND 750 AQUA MANSA CFO
219 STATE AID- CAPITAL PROJECTS 754 SB COUNTY HOSPITAL
220 Vi Tep 762 TRUST AND AGENCY
225 MISC GRANTS 766 DEFERRED COMPENSAT ION
240 HOST CITY FEES - CIP 781 CFO 90-1 DEBT SERVICE
247 Quimby In Lieu Fees 782 CFO 90-1 CONSTRUCT ION
248 PARK DEVELOPMENT FUND 850 Redeve lopment Obligation Retirement Fund 249 TRAFF IC IMPACT FUND 851 Successor Agency Administration 250 NEW FAC ILITIES DEVELOPMENT FEE 855 Hous ing Auth - RM PARK DEVELOPMENT 251 CIVIC CENTER DEVELOPMENT FEE 856 Housing Auth - RANCHO MED BOND PROCEEDS 252 FIRE FAC ILITY DEVELOPMENT FEE 857 LMI Asset Fund
253 POLICE FACILITY DEVELOPMENT FEE 864 Housing Auth - LOW/MOD BOND PROCEEDS 261 ASSET FORFEITURE 865 Housing Auth - RANCHO MED CHFA 326 AD 94-1 DEBT SERVICE 866 ECONOM IC DEVELOPMENT
332 1971 SEWER BONDS, A & C 867 Consolidation Proj_08 -09 350 PFA Debt Fund 870 Housing Auth - RM PARK OPERAT IONS 357 POB-Non Enterprise 871 Successor Agcy-RANCHO/M ILL PROJECT AREA 358 PENS ION OBLIGATION DEBT SERV ICE 872 Succe ssor Agcy-RANCHO/MILL DEBT SERV ICE 359 CORP YARD DEBT SERV ICE 873 Successor Agcy-RDA II PROJECT FUND 363 1978-2 ASSESSMENT DIST . 874 Housing Auth - LOW/MOD DEBT SERV ICE 364 WATER IMPRVMNT DIST A 875 Housing Auth - LOW/MOD BOND PROCEEDS 379 AD 1979-1 DEBT SERV ICE 876 Successor Agcy-SANTA ANA RIV BND PROCEED 427 AD 94-1 CONSTRUCT ION 877 Successor Agcy-SANTA ANA RIVER CIP 450 Capita l Improvement Project s 878 RDA FIXED ASSETS GROUP 451 Colton Crossing Fund 879 Successor Agcy-WEST VALLEY CIP 453 STREET IMPROVEMENTS PRGM 881 Successor Agcy-MT VERNON BOND PROCEEDS 457 CAP ITAL IMPROVEMENT 882 Successo r Agcy-MT VERNON CIP 469 EQU IPMENT REPLACEMENT 885 Successor Agcy -MT VERNON DEBT SERV ICE 520 ELECTR IC UTILITY 886 RDA ADM INISTRAT ION
521 WATER UTILITY 887 COOLEY RANCH - now 894
522 WAS TEWATER UTILITY 888 MT VERNON - now 882
523 SOLID WASTE 889 WEST VALLEY - now 879
524 CEMETERY 890 Successor Agcy-RDA - LONG TERM DEBT GRP 525 RECYCLING 891 Successo r Agcy-RDA I DEBT SERV ICE FUND 526 PUBLIC BENEFIT FUND 892 Successor Agcy-RDA I - CAP ITAL PROJECTS 527 WASTEWATER UTILITY - GRAND TERRACE 893 Successor Agcy -RDA II DEBT SERV ICE FUND 551 WATER DEVELOPMENT 894 Successor Agcy -COOLEY RANCH PRO JECT 552 SEWER DEVELOPMENT 895 Successor Agcy-COOLEY RANCH DEBT SERV 560 CEMETARY ENDOWMENT CARE 896 SANTA ANA RIVER - now 877 605 Facility & Equipment Maintenance Fund 897 Successor Agcy-SANTA ANA RIVER DEBT SVC 606 INFORMATION SERV ICES FUND 898 Housing Auth - LOW/MOD CAPITAL PROJECTS 607 INSURANCE FUND 899 Successor Agcy-WEST VALLEY PRJ - DBT SV 608 AUTOMOT IVE SHOP 941 GENERAL LONG -TERM DEBT
610 AUTOMOT IVE SHOPS 958 GENERAL FIXED ASSETS
990 GASB 34

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ITEM NO. 6

STAFF REPORT

DATE: APRIL 19, 2022
TO: HONORABLE MAYOR AND CITY COUNCIL MEMBERS
FROM: BILL SMITH, CITY MANAGER
PREPARED BY: BRIAN DICKINSON, PUBLIC WORKS AND UTILITY SERVICES

DIRECTOR
SUBJECT: APPROVE AND ADOPT SAN BERNARDINO COUNTY FIRE

PROTECTION DISTRICT HOUSEHOLD HAZARDOUS WASTE FIVE
YEAR AGREEMENT, RESOLUTION NO. R-25-22.

RECOMMENDED ACTION

Staff recommends that the City Council take the following action:

1. Approve resolution R -25-22 authorizing the City of Colton to enter into a fiv e year agreement with the San Bernardino County Fire Protection District, Household Hazardous Waste Division, to continue to provide the safe collection, recycling, treatment and disposal of hazardous materials , which are generated by households in the City of Colton; and

2. Authorize the City Manager, or his designee , to sign the agre ement approved in substantially final form.

BACKGROUND

The California Public Resources Code (Section 47000 et seq. ) requires cities and counties to prepare a Household Hazard ous Waste Element which identifies a program for the safe collection, recycling, treatment and disposal of hazardous wastes which are generated by households in the City or County which should be separated from the solid waste stream. The County of San Ber nardino and each of the cities in the County have developed Household Hazardous Waste Elements (HHWE), which identify a countywide cooperative program for the management of Household Hazardous Waste.

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ISSUES/ANALYSIS

The existing Household Hazardous Wast e program operated by the San Bernardino County Fire Protection District, Household Hazardous Waste Division, is consistent with the adopted HHWE, the District’s Division of Hazardous Materials, responsible for the safe management of hazardous waste.

The City of Colton desires the removal of hazardous waste from homes so that such materials will pose no danger in the event of fire, the prevention of potential environmental degradation and the conservation of resources through recycling.

San Bernardino Cou nty Fire Protection District, Household Hazardous Waste Division, has had increased cost in supplies, increased disposal, and staffing in the last 5 years. The cost of supplies continue to increase due to COVID and inflation. San Bernardino County Fire Household Hazardous Waste Division (SBCOHHW) is proposing a gradual increase of 0.25% each year over the 5-year agreement.

This will allow SBCOHHW to remain operational and provide the necessary services that the City of Colton community needs. SBCOHHW will continue participating in the City of Colton community events to provide outreach to the community . Currently they participate in Community Dump Days, Earth Days and Oil Filter Events. The goal is to continue growing the program, providing information to the community (in English and Spanish), advertising and being a resource for the residents of the City of Colton.

If approved the new contract will become in effect July 1, 2022 through June 30, 2027.

FISCAL IMPACTS
Funding for the FY2022-23 agreement amount was requested in the FY2022-23 budget in Storm Water Fund Permits Account Number 722-6150-8215-2241-0000-000.

ALTERNATIVES

1. Provide alternative direction to staff.

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ATTACHMENT

1. City of Colton Contract FY22-27 (002)

2. Resolution R-25-22
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Standard Contract Page 1 of 6

THE INFORMATION IN THIS BOX IS NOT A PART OF THE CONTRACT AND IS FOR COUNTY USE ONLY

San Bernardino County Fire
Protection District

Department Contract Representative Jose Rodriguez
Telephone Number (909) 382-5401

Contractor City of Colton
Contractor Representative Jessica Sutorus
Telephone Number (909) 370-5561
Contract Term July 1, 2022 through June 30, 2027
Original Contract Amount $431,352.44
Amendment Amount
Total Contract Amount $431,352.44
Cost Center

IT IS HEREBY AGREED AS FOLLOWS:

HOUSEHOLD HAZARDOUS WASTE COLLECTION AGREEMENT

This Agreement is made and entered into between the San Bernardino County Fire Protection District, hereinafter referred to as “District” and the City of Colton hereinafter referred to as the “City.”

RECITALS:

WHEREAS, the California Public Resourc es Code (Section 47000 et seq.) requires cities and counties to prepare a Household Hazardous Waste Element which identifies a program for the safe collection, recycling, treatment and disposal of hazardous wastes which are generated by households in the c ity or county and which should be separated from the solid waste stream; and,

WHEREAS, San Bernardino County and each of the cities in the County have developed Household Hazardous Waste Elements (HHWE) which identify a county-wide cooperative program for the management of Household Hazardous Waste; and,

WHEREAS, the existing Household Hazardous Waste program operated by the District is consistent with the adopted HHWE; and,

Contract Number

SAP Number

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WHEREAS, the District’s Section of Hazardous Materials, is a section of the District responsible for the safe management of hazardous waste; and,

WHEREAS, the City desires for the protection, health and welfare of the public and its personnel, the removal of hazardous waste from homes so that such materials will pose no danger in the event of fire, the prevention of potential environmental degradation and the conservation of resources through recycling.

NOW, THEREFORE, in consideration of mutual covenants and conditions the parties hereto agree as follows:

WITNESSETH:

RESPONSIBILITIES AND DUTIES OF THE CITY

1. The City shall publicize to its residents the need to properly reduce, recycle, store, transport and dispose of Household Hazardous Waste and inform its residents of the availability of nearby household hazardous waste collection facilities for safe management of household hazardous waste, in the manner and form recommended by District.

2. The City shall publicize to its residents the maximum quantities of hazardous w aste allowed for transportation which are containers no larger than 5 gallons and maximum quantities of 15 gallons or 125 pounds per trip brought to a household hazardous waste collection facility per participant.

3. The City shall publicize to its small businesses that need to dispose of small quantities of business waste to contact the District and make an appointment to use the Very Small Quantity Generator (VSQG) program for proper disposal.

4. The City shall publicize to its residents that home generated sharps containers shall only contain needles, lancets and syringes with a needle attached that must be completely spent (used and no liquid remaining, this includes EpiPens). The public may use 2 gallon or smaller heavy-duty plastic household containers as an alternative to plastic bio-hazard sharps containers. The container should be leak-resistant, remain upright during use and have a tight fitting, puncture -resistant lid, such as a plastic laundry detergent container. Containers consisting of glass, metal, cardboard or paper will not be accepted.

RESPONSIBILITIES AND DUTIES OF THE DISTRICT

5. The District shall continue to operate a comprehensive Household Hazardous Waste Program (Program) for the safe collection, recycling, treatment and disposal of household hazardous waste , including universal waste, Home -generated Sharps (HGS) and pharmaceutical waste excluding controlled substances. The District program shall be based on a Central Processing Facility and a regional network of collection centers si ted so as to provide safe, convenient service to the public in a cost -effective manner.

6. The District shall provide an annual report to the City, which shall include the amounts and types of waste collected, participation by jurisdiction, and final disposition of the waste. The report will be provided at no additional cost to the City.

7. The District shall compile and provide to the California Department of Resources Recycling and Recovery (CalRecycle), the Department of Toxic Substances Control, and the Cer tified Unified Program Agency, the City’s Annual Form 303 Report. The report will be provided at no additional cost to the City.

8. The District shall provide to the City, flyers/brochures/education material that shall be distributed by the City electronically. Hard copies will also be provided upon request, at no additional cost to the City.

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9. The District shall charge any business that disposes of household hazardous waste the actual cost of disposal as indicated in the District’s fee ordinance. For cities or community services districts that operate their own household hazardous waste collection facility, if business waste is accepted at any satellite facility, the City or community services district will be responsible for the disposal cost of the busines s waste.

10. The District shall provide a n electronic biohazardous waste label to every participant that disposes of home generated sharps. The public may use 2 gallon or smaller heavy-duty plastic household containers such as a plastic laundry detergent container as an alternative to plastic bio -hazard sharps containers.

The biohazardous waste label shall be placed on the rigid heavy-duty, puncture-resistant plastic container used to dispose of home generated sharps.

CONSIDERATION

11. In consideration for the services provided, City shall pay the District the following amount not to exceed $431,352.44:

Fiscal Year Annual Amount Amount per quarter
2022/2023 $80,432.55 $20,108.13
2023/2024 $83,046.61 $20,761.65
2024/2025 $85,953.24 $21,488.31
2025/2026 $89,176.49 $22,294.12
2026/2027 $92,743.55 $23,185.88

12. Payments will be due on July 15, October 15, January 15, and April 15 of each year through the term of the contract.

TERM AND TERMINATION

13.This Agreement shall be effective July 1, 2022 and shall remain in effect through June 30, 2027, but may be renewed for specified periods, unless, otherwise terminated or amended.

14. Notwithstanding the foregoing, either party may terminate this Agreement at any time upon 90 days prior written notice to the other party.

INSURANCE AND INDEMNIFICATION

15. City and District are authorized self-insured public entities for purposes of Professional Liability, General Liability, Automobile Liability and Workers’ Compensation and warrant that through their respective programs of self-insurance, they have adequate coverage or resources to protect against liabilities arising out of the performance of the terms, conditions or obligations of this Agreement.

16. District agrees to indemnify, defend (with counsel reasonably approved by City) and hold harmless City, its officers, employees, agents and volunteers, from any and all claims, actions, losses, damages, and/or liability arising out of this Agreement from any cause whatsoever, including, the acts, errors or omissions of any person and for any costs or expenses incurred by City on account of any claim, except where such indemnification is prohibited by law. This indemnification provision shall apply regardless of the existence

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or degree of fault of indemnities. The District’s indemnification obligation applies to City’s “active” as well as “passive” negligence but does not apply to City’s “sole negligence” or “willful misconduct” within the meaning of Civil Code section 2782.

City agrees to indemnify, defend (with counsel reasonably approved by District) and hold harmless District, its officers, employees, agents and volunteers, from claims, actions, losses, damages, and/or liability arising out of this Agreement from any cause whatsoever, including, the acts, errors or omissions of any person and for any costs or expenses incurred by City on account of any claim, except where such indemnification is prohibited by law. This indemnification provision shall apply regardless of the existence or degree of fault of indemnities. The City’s indemnification obligation applies to District’s “active” as well as “passive” negligence but does not apply to District’s “sole negligence” or “willful misconduct” within the meaning of Civil Code section 2782.

In the event District and/or City are found to be comparatively at fault for any claim, action, loss or damage which results from their respective obligations under this Agreement, District and/or City, as applicable, shall indemnify the other to the extent of its comparative fault.

Notwithstanding indemnification for any claim, action, loss, or damage involving a third party, District and City hereby waive any and all rights of subrogation recovery against each other.

Furthermore, if District or City attempts to seek recovery from the other for Workers’ Compensation benefits paid to an employee, District and City agree that any alleged negligence of the employee shall not be construed against the employer of that employee.

GENERAL TERMS AND CONDITIONS

17. Representation of the District . In the performance of the Agreement, City, its agents and employees, shall act in an independent capacity and not as officers, employees, or agents of the District.

18. Change of Address. City shall notify the District in writing of any change in mailing address within ten (10) business days of the change.

19. Agreement Assignability. Without the prior written consent of the District, the agreement is not assignable by City, either in whole or in part.

20. Agreement Amendments . City agrees that any alterations, variations, modifications, waivers, or provisions of the Agreement shall be valid only when reduced to writing, duly signed, and attached to the original Agreement and approved by the required persons of both City and District.

21. Correction of Performance Deficiencies. Failure by City to comply with any of the provisions, covenants, requirements or conditions of this agreement shall be a material breach of this agreement.

In the event of a non-cured breach, District may, at its sole discretion and in addition to immediate termination and any other remedies available at law, in equity, or otherwise specified in this Contract:

A. Afford City thereafter a time period within which to cure the breach, which period shall be established at sole discretion of District; and/or,
B. Terminate this Contract.

22. Attorney Fees and Costs. If any legal action is instituted to enforce any party’s rights hereunder, each party shall bear its own costs and attorneys’ fees, regardless of who is the prevailing party. This paragraph shall not apply to those costs and attorneys’ fees directly arising from a third-party legal action against a party hereto and payable under INDEMNIFICATION paragraphs.

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23.Venue and Governing Law. The venue of any action or claim brought by any party to this Agreement will be the Central District Court of San Bernardino County Superior Court. Each party hereby waives any law or rule of the court, which would allow them to request or demand a change of venue. If any acti on or claim concerning this Agreement is brought by any third -party, the parties hereto agree to use their best efforts to obtain a change of venue to the Central District Court of San Bernardino County Superior Court. This contract shall be governed by the laws of the State of California.

24.Notification. In the event of a problem or potential problem that will impact the level of performance by a Party under this Agreement, the Party shall notify the other Party within one (1) working day, in writing and by telephone.

25. Former County and District Officials. City agrees to provide or has already provided information on former San Bernardino County and District administrative officials (as defined below) who are employed by or represent City. The inf ormation provided includes a list of former County and District administrative officials who terminated COUNTY or District employment within the last five years and who are now officers, principals, partners, associates or members of the business. The information also includes the employment with or representation of City. For purposes of this provision, “County administrative official” is defined as a member of the Board of Supervisors or such officer’s staff, County Administrative Officer or member of such officer’s staff, County or District department or group head, assistant department or group head, or an employee in the Exempt Group, Management Unit, or Safety Management Unit.

26. Inaccuracies or Misrepresentations. If in the course of or the administration of this Agreement District determines that City has made a material misstatement or misrepresentation, or that materially inaccurate information has been provided , this Agreement may be immediately terminated. If the Agreement is terminated according to this provision, the District is entitled to pursue any available legal remedies.

27. Waiver. No delay on the part of either party in exercising any power or right hereunder shall operate as a waiver thereof; nor shall any single or partial exercise of any power or right preclude any other or further exercise thereof of any other power or right. No waiver by any party of any right hereunder or of any default shall be binding upon such party unless such waiver is in writing and signed by a duly authorized official of such party; and no waiver of any default or failure by such party to exercise any right hereunder shall operate as a waiver of any other or further exercise of such right or of any further default.

28. Severability. If any provi sions of this agreement, or portions thereof, or the application thereof to any circumstances shall be held invalid or unenforceable, the remainder of this agreement and the application thereof to other circumstances shall nevertheless be valid.

29. Notices and Reports. Any notices shall be addressed to the respective parties as set forth below:

DISTRICT:

Monica Ronchetti
Deputy Fire Marshal/CUPA Manager
Household Hazardous Waste Section
2824 East “W” Street
San Bernardino, CA 92415-0799
CITY: Jessica Sutorus
Environmental Conservation Supervisor
650 N. La Cadena Dr.

Colton, CA 92324

30. Entire Agreement.

A. This agreement is intended by the parties hereto as a final expression of their agreement and understanding with respect to the subject matter hereof and as a complete and exclusive statement of the terms hereof and supersedes any and all prior and contemporaneous agreements and understandings.

B. The signatures of the Parties affixed to this Contract affirm that they are duly authorized to commit and bind their respective institutions to the terms and conditions set forth in this document.

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31.This agreement may be executed in any number of counterparts, each of which so executed shall be deemed to be an original, and such counterpart shall together constitute one and the same agreement.

The parties shall be entitled to sign and transmit an electronic signature of this agreement (whether by facsimile, PDF or other email transmission), which signature shall be binding on the party whose name is contained therein. Each party providing an electronic signature agrees to promptly execute and deliver to the other party an original signed agreement upon request.

IN WITNESS WHEREOF, the Board of Directors has caused this Agreement to be subscribed to by the Secretary thereof, and City has caused this Agreement to be subscribed on its behalf by its duly authorized officers, the day, month and year written.

FOR COUNTY USE ONLY
Approved as to Legal Form Reviewed for Contract Compliance Reviewed/Approved by Department

Scott Runyan, Supervising Deputy County
Counsel

Date Date Date

SAN BERNARDINO COUNTY FIRE PROTECTION

DISTRICT

(Print or type name of corporation, company, contractor, etc.)

By

Curt Hagman, Chairman, Board of Directors (Authorized signature - sign in blue ink) Dated:

Name

SIGNED AND CERTIFIED THAT A COPY OF THIS (Print or type name of person signing contract)

DOCUMENT HAS BEEN DELIVERED TO THE
CHAIRMAN OF THE BOARD Title
Lynna Monell, Secretary (Print or Type) By Dated:

Deputy
Address

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-1-

RESOLUTION NO. R-25-22

RESOLUTION OF THE CITY COUNCIL OF THE CITY

OF COLTON AUTHORIZING THE CITY OF COLTON TO

ENTER INTO A FIVE YEAR AGREEMENT WITH SAN

BERNARDINO COUNTY FIRE PROTECTION DISTRICT,

HOUSEHOLD HAZARDOUS WASTE DIVISION,

APPROVING THE AMOUNT IN THE PROPOSED
BUDGET REQUEST FY 22/23 AND AUTHORIZING THE

CITY MANAGER TO EXECUTE THE AGREEMENT

WHEREAS, The California Public Resources Code (Section 47000 et seq.) requires cities and counties to prepare a Household Hazardous Waste Element which identifies a program for the safe collection, recycling, treatment and disposal of hazardous wastes which are generated by households in the City or County which should be separated from the solid waste s tream. The County of San Bernardino and each of the cities in the County have developed Household Hazardous Waste Elements (HHWE), which identify a countywide cooperative program for the management of Household Hazardous Waste; and
WHEREAS, The existing H ousehold Hazardous Waste program operated by the San Bernardino County Fire Protection District, Household Hazardous Waste Division, is consistent with the adopted HHWE , the District’s Division of Hazardous Materials, responsible for the safe management of hazardous waste.; and
WHEREAS, The City of Colton desires the removal of hazardous waste from homes so that such materials will pose no danger in the event of fire, the prevention of potential environmental degradation and the conservation of resources through recycling; and WHEREAS, San Bernardino County Fire Protection District, Household Hazardous Waste Division, has had increased cost in supplies, increased disposal, and staffing in the last 5 years. The cost of supplies continue to increase due to COVID and inflation; and WHEREAS, San Bernardino County Fire Household Hazardous Waste Division (SBCOHHW) is proposing a gradual increase of 0.25% each year over the 5-year agreement; and

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-2-

WHEREAS, This will allow SBCOHHW to remain operational and provide the necessary services that the City of Colton community needs. SBCOHHW will continue participating in the City of Colton community events to provide outreach to the community. Currently they participate in Community Dump Days, Earth Days and Oil Filter Events; and WHEREAS, The goal is to continue growing the program, providing information to the community (in English and Spanish), advertising and being a resource for the residents of the City of Colton. If approved the new contract will become in effect July 1, 2022 through June 30, 2027; and

NOW, THEREFORE, BE IT RESOLVED that the City Council of the City of Colton accepts the fire year agreement from SBCOHHW; and

BE IT FURTHER RESOLVED the City Cou ncil approves the agreement amount of a gradual

0.25% increase each year over 5 years; and

1. Approve the amount included in the proposed budget request for FY 22/23 in account 722- 6150-8215-2241 and;

BE IT FURTHER RESOLVED that the City Manager, or his/her designee is hereby authorized and empowered to execute in the name of the City of Colton all documents, to implement the approved agreement.

PASSED, APPROVED AND ADOPTED this 19th day of April, 2022.

_________________________________
FRANK J. NAVARRO

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Mayor
ATTEST:

______________________________
CAROLINA R. PADILLA
City Clerk

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ITEM NO. 7

STAFF REPORT

DATE: APRIL 19, 2022
TO: HONORABLE MAYOR AND CITY COUNCIL MEMBERS
FROM: BILL SMITH, CITY MANAGER
PREPARED BY: MARK TOMICH, DIRECTOR
SUBJECT: APPROVE THE 2021 ANNUAL HOUSING PROGRESS REPORT, RESOLUTION NO. R-39-22.

RECOMMENDED ACTION

Staff recommends that the City Council take the following action:

Adopt Resolution No. R-39-22 approving the 2021 Housing Element Annual Progress Report for the California Department of Housing and Community Development (HCD).

BACKGROUND

The General Plan Housing Element contains programs to facilitate the production of housing pursuant to goals established by the State and regional planning agencies, which in Colton’s case is the Southern California Association of Governments (SCAG). These go als are the result of State housing law directives which require every jurisdiction to accommodate its “fair share” of housing at all income levels and establish programs toward accomplishing regional and statewide housing goals.

Government Code section 65400 requires that each city, county, or city and county, prepare an annual progress report (APR) on the status of the housing element of its general plan and progress in its implementation using forms and definitions adopted by the Department of Housing and Community Development (HCD). Th is section of the Government Code also requires the annual report to be provided to the legislative body (City Council). The annual report measures the City’s progress in meeting its share of regional housing needs determ ined pursuant to Section 65584 and local efforts to remove governmental constraints to the maintenance, improvement, and development of housing.

ISSUES/ANALYSIS
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April 19, 2022