Agenda packet — Concord City Council, January 10, 2023 (part 3 of 4)

Prevent Displacement around Ellis Lake Park!
¡Prevenir el Desplazamiento alrededor del Parque Ellis Lake! We, Concord residents, businesses, and organizations, call on the Concord City Council to pass meaningful Anti-Displacement policies NOW, including Rent Control and Just Cause, to keep Concord families safe in their homes while improving our parks. We should not have to choose between staying in our homes or having a beautiful Ellis Lake Park.

Nosotros, los residentes, negocios y organizaciones de Concord, insistimos que el Concejo Municipal de la Ciudad de Concord aprueben políticas significativas contra el desplazamiento AHORA, incluyendo el Control de Renta y Causa Justa, para mantener a la familias de Concord seguras y en sus hogares mientras mejoran nuestros parques. No deberíamos tener que elegir entre permanecer en nuestros hogares o tener un hermoso parque de Ellis Lake.

First Name ~ Nombre Last Name ~ Apellido
Zip Code ~ Código Postal Organization/Business Affiliation Organización/Afiliación de Negocio
Would you like to stay informed about this campaign? Please provide your phone number or Email below ~ ¿Quisiera mantenerse informado(a) sobre esta campaña? Por favor proveer su Número de Teléfono o Correo Electrónico a continuación.
https://bit.ly/3tR6DXF
Veronica Isola 94520

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1 Sage, Aaron
From: Alex Werth <[email protected]>
Sent: Friday, August 12, 2022 4:21 PM
To: Sage, Aaron; Gentry, Mindy; Asha Bleier; [email protected]; Aliano, Dominic; Hoffmeister, Laura; McGallian, Tim; Obringer, Carlyn; Birsan, Edi; Planning Commission Public Comments; City of Concord
Cc: [email protected]; [email protected]; [email protected] Subject: Failure to Incorporate Public Comment into the Revised Draft Housing Element “EXTERNAL EMAIL: This email originated from outside of the organization. Do not follow guidance, click links, or open attachments unless you recognize the sender and know the content is safe.”

Dear Concord Housing Element Planning Team, City Councilmembers, and Planning Commissioners, On behalf of the Raise the Roof Coalition, I'm writing to submit the attached letter (with separate attachment), which details our deep concerns about the planning team's failure to meaningfully incorporate the outpouring of public comment on the need for more effective tenant protections -- in particular, rent stabilization and just cause eviction protections -- in Concord's 6th Cycle Housing Element. We will be submitting another letter in the coming weeks that responds to what we collectively see as the inadequacies of the planning team's responses to the recommendations submitted by 37 community-based and community-serving organizations on June 27th, 2022. However, we felt an immediate need to point out that, while the overwhelming majority of written comments received called for stronger tenant protections (83%), these requests were summarily ignored due to the political opposition of three out of five City Councilmembers -- a reason that runs counter to State requirements for public participation and affirmatively furthering fair housing.

We look forward to continuing to engage in this process to ensure that Concord's Housing Element takes meaningful steps to address increasing displacement and homelessness among low-income renters and members of protected classes.

With appreciation,
Alex
--
Alex Werth | Policy Manager
East Bay Housing Organizations
413-222-8880 (cell) | [email protected]
538 9th St. Suite 200 | Oakland, CA 94607
Pronouns: He/Him/His
Browse EBHO's educational resources in The Study Room. Now updated and expanded for 2022! Attachment A - Ellis Lake Park Petitions.pdf
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Raise the Roof Response to Concord Revised Hous...

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August 12, 2022
To: Aaron Sage, Principal Planner
Mindy Gentry, Planning Manager
Asha Bleier, Consultant Project Manager, Dudek
Elizabeth Dickson, Planner, Dudek
Dominic Aliano, Mayor
Laura Hoffmeister, Vice Mayor
Carlyn Obringer, Councilmember
Tim McGallian, Councilmember
Edi Birsan, Councilmember
Jason Laub, Planning Commissioner
Mark Weinmann, Planning Commissioner
Raymond Barbour, Planning Commissioner
John Mercurio, Planning Commissioner
Craig Mizutani, Planning Commissioner
Cc: David Zisser, Assistant Deputy Director, HCD
Melinda Coy, Land Use and Planning Manager, HCD
RE: Failure to Incorporate Community Input on the City of Concord’s Draft 6th Cycle Housing Element
Dear Planning Staff, Consultants, City Councilmembers, and Planning Commissioners, We, the members of the Raise the Roof Coalition, who serve and work alongside the most vulnerable residents of Concord, write to follow up on the comment letter that we submitted on June 27th, 2022 regarding Concord’s Draft 6th Cycle Housing Element. In that letter, we–along with 28 other community-based and -serving organizations–called upon the City of Concord to revise the Draft Housing Element to include effective tenant

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protections, increase funding for affordable housing and community land trusts, and affirmatively further fair housing by promoting desegregation of exclusionary areas.

We appreciate the planning team’s transparency regarding the comments received and relative thoroughness of its responses as well as the opportunity to review and respond to the Revised Draft. However, we remain deeply concerned that our recommendations were not meaningfully incorporated into the revisions and that the reasons given do not make sense from an empirical or policy perspective. As such, we intend to write a more detailed comment regarding the responses provided to the previous letter we submitted to share our deepening concerns with City and State stakeholders.

In the meantime, we feel an urgent need to comment on the planning team’s general refusal and failure to meaningfully incorporate the public input received from impacted community members and organizations that serve them, specifically regarding the need for stronger tenant protections. Rather than reiterate our arguments about why stronger tenant protections are needed from an empirical and policy perspective, we write to express our concerns about the process itself, including possible violations of State Housing Element law and guidance.

Under State law, Concord is required to make “a diligent effort...to achieve public participation of all economic segments of the community in the development of the housing element.”1 According to HCD, a “diligent effort” means “going beyond simply giving the public an opportunity to provide input”; rather, community engagement must be “proactively and broadly conducted through a variety of methods to assure access and participation.”2 Over the last year, Concord has sought–with some missteps and corrections–to realize this mandate. But it is not enough to merely record the input of low-income residents and members of protected classes if those ideas are then wholly disregarded. Indeed, the checklist that HCD will use to determine whether the City’s Housing Element complies with AB 686 (Affirmatively Furthering Fair Housing) states that Concord must “describe and incorporate meaningful engagement that represents all segments of the community into the development of the housing element, including goals and actions.”3 By this measure, we maintain that the planning team has failed to meaningfully “incorporate” the feedback received from impacted residents.

Specifically, the planning team has not responded to and incorporated comments about the need for stronger tenant protections in a way that is commensurate with the scale of 1 Gov. Code 65583(c)(9).
2 HCD. April 2021. Affirmatively Furthering Fair Housing: Guidance for All Public Entities and for Housing Elements, p. 21.
3 HCD, April 2021, p. 62.

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the comments received. As mentioned in our previous letter, of the approximately 800 residents who responded to the City’s Housing Element survey, large numbers named unaffordable housing costs (54%), sudden rent increases (52%), sudden lease termination (39%), lack of maintenance (37%), and eviction (35%) as the main causes of displacement in Concord.4 Therefore, it follows that rent stabilization and just cause eviction protections were the main solutions identified by impacted community members and the organizations that serve them at almost every Town Hall, City Council meeting, and Housing and Economic Development (HED) Committee study session held as part of the Housing Element Update.5
However, this is not a new conversation in Concord. Appendix G (Community Input and Council Actions on Tenant Protections and Displacement Since 2016) documents a torrent of public testimony on the impacts of the housing affordability and displacement crises on local renters as well as the need for rent stabilization and eviction protections.

Over the last six years, Concord has held 13 City Council meetings, 10 meetings of an Ad Hoc Committee on Rental Housing, and numerous HED meetings at which tenant protections have been discussed.6 At these meetings, there have been speakers both for and against rent stabilization and eviction protections. But according to Appendix G, the overwhelming majority have spoken to the severe burdens of trying to rent a home in Concord, and thus their support for these policies; out of 243 individual commenters and 438 comments, Appendix G shows that 63% of commenters and 64% of comments were in favor of tenant protections–in both cases, twice as many as those opposed.
7 Public comment is only one of many ways that residents have voiced their opinions on these matters. According to Appendix G, in 2016, Father Ismael Guttierez of St. Francis of Assisi Church presented a letter signed by 2,500 members of the Catholic faith urging the City Council to pass policies to put an end to unjust evictions.8 This outpouring of community support was mirrored in 2021, when approximately 500 residents signed a petition calling for the creation of an anti-displacement task force to develop strategies, like rent stabilization and just cause, designed to combat gentrification in the vicinity of Ellis Lake Park (see attached). This request was denied; rather than create a task force, the City stated that the Housing Element Update was the proper time to consider anti4 City of Concord. May 2022. Draft Housing Element (2023-2031), p. F70. 5 City of Concord, May 2022, pp. F7, F8, F23, F24, F26. 6 City of Concord, May 2022, p. 396.
7 The complete data is as follows: 152 out of 243 commenters (63%) and 281 out of 438 comments (64%) were in favor of tenant protections; 77 out of 243 commenters (32%) and 140 out of 438 comments (32%) were opposed; and 14 out of 243 commenters (1%) and 17 out of 438 comments (0%) were neither clearly for or against.
8 City of Concord, May 2022, p. 401.

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displacement measures.9 So members of protected classes and their representatives have overcome the barriers to participation, once again, to reiterate their concerns as part of yet another public planning process; including the letter from 37 organizations, which we submitted, 54 out of 65 of the individuals or organizations who submitted comments on the Original Draft (83%) expressed the need for more robust tenant protections, including rent stabilization and just cause eviction policies.

These forms of community input all contribute to the “local knowledge” that Concord is required to consider in the development of fair housing policies.10 So it is dispiriting to see the planning team, at the behest of the City Council and City Manager, consciously and continuously ignore the solutions proposed by a large segment of the community in favor of policies that have no basis whatsoever in the public engagement process.

As a case in point, at a City Council hearing on June 21st, 2022, two individuals raised concerns about the location of short-term rentals (STRs) in their neighborhoods. Based on those two comments alone, the City Council directed the planning team to include a Program to regulate STRs as a means to address “displacement.” Since then, Program 24 was added to the Revised Draft because, according to the planners, “[t]he Concord community has expressed concern over displacement of tenants through conversion of conventional rental dwelling units to short-term rentals.”11 But this is plainly incorrect.

There is no mention of STRs anywhere in the Original Draft, including Appendix F (Community Engagement Summary) and Appendix H (Public Comments); there is no data that demonstrates the link between STRs and Concord’s displacement crisis in Appendix D (Affirmatively Furthering Fair Housing); and none of the written comments submitted in response to the Original Draft raise concerns about STRs in general or as a cause of displacement in particular.

By contrast, there is extensive data and community input that indicates the importance of rent stabilization and eviction protections as anti-displacement measures; indeed, at that same meeting on June 21st, 14 individuals spoke to the need for stronger tenant protections. But those policies were excluded from the Revised Draft because three out of the five City Councilmembers voted against them.12 By contrast, Program 24 (STRs) was immediately included because all five Councilmembers stated an interest in doing so, with Councilmember McGallian saying on the record that his personal “goal” was to “eliminate [STRs].”13
9 City of Concord, May 2022, p. 399.
10 HCD, April 2021, p. 24.
11 City of Concord. August 2022. Revised Draft Housing Element (2023-2031), p. 39. 12 See “Master Response #4.” City of Concord, August 2022, pp. H2-H3. 13 See video recording of Concord City Council Special Meeting, June 21, 2022, 2:27:37.

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The Housing Element is meant to be driven by the data on community needs and community input, not the personal and political preferences of five legislators. So we strongly request that you reconsider the public input received and revise Program 20 to include concrete and proactive steps to consider rent stabilization and just cause for eviction policies by 2024.

Sincerely,
The Members of the Raise the Roof Coalition
The Alliance of Californians for Community Empowerment (ACCE) Contra Costa Central Labor Council
Central County Regional Group (CCRG) of First 5 Contra Costa East Bay Alliance for a Sustainable Economy (EBASE)
East Bay Housing Organizations (EBHO)
Ensuring Opportunity Campaign to End Poverty in Contra Costa County The Faith Alliance for a Moral Economy (FAME)
Jewish Family & Community Services East Bay
Monument Impact
Tenants Together
Todos Santos Tenants Union

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1 Page 580 of 670
October 10th, 2022
To: Aaron Sage, Principal Planner
Mindy Gentry, Planning Manager
Asha Bleier, Consultant Project Manager, Dudek
Elizabeth Dickson, Planner, Dudek
Dominic Aliano, Mayor Jason Laub, Planning Commissioner Laura Hoffmeister, Vice Mayor Mark Weinmann, Planning Commissioner Carlyn Obringer, Councilmember Raymond Barbour, Planning Commissioner Tim McGallian, Councilmember John Mercurio, Planning Commissioner Edi Birsan, Councilmember Craig Mizutani, Planning Commissioner Cc: David Zisser, Assistant Deputy Director, HCD
Melinda Coy, Land Use and Planning Manager, HCD
2 Page 581 of 670
RE: Concerns with City of Concord’s Response to Comments on Draft 6th Cycle Housing Element
Dear Planning Staff, Consultants, City Councilmembers, and Planning Commissioners, On June 27th, 2022, we submitted a comment letter on the City of Concord’s Draft 6th Cycle Housing Element (“Original Draft”) in which we called upon the City to commit to policies that will affirmatively further fair housing in a manner commensurate to the severe inequalities identified in the plan. Specifically, we recommended that the City revise the Original Draft to include effective tenant protections, promote desegregation by upzoning exclusionary areas, and increase local funding for affordable housing and community land trusts. This letter was signed by 37 (now 38) organizations that serve and work alongside those residents who are most impacted by the city’s housing and homelessness crises, including low-income renters, immigrants, and people of color.

As noted in the follow-up letter submitted by the Raise the Roof Coalition on August 12th, 2022, we were deeply disappointed to see that the City failed to address these concerns in its Revised Draft, thus disregarding the preponderance of empirical data and community input that pointed to the need for more meaningful action to stem the tide of displacement harming members of protected classes in Concord. Moreover, we found the City’s stated reasons for refusing to incorporate public comment on the need for stronger anti-displacement and fair housing measures to be insufficiently responsive to our comments and/or logically unsound.

Therefore, in this letter, we’ve provided a point-by-point reply to the responses included in Appendix H of the Revised Draft (pp. 30-44), which are colored purple. Our remarks are organized according to the three recommendations made in our original letter.

1. Include Clear Commitments for the City Council to Consider Local Rent Stabilization and Just Cause Eviction Protections by 2024 “See Master Response #4.”
The City responded to the clear and overwhelming call for rent stabilization and local just cause eviction protections to be included in the plan by stating that the City Council feels that existing policies and programs “may be sufficient to address community needs and should be allowed to operate and have their effectiveness measured before further actions are taken.”1 Those policies and programs include the Tenant Anti-Harassment 1 City of Concord. August 2022. Revised Draft Housing Element (2023-2031), pp. H2-H3. 3 Page 582 of 670
Ordinance, Multifamily Rental Housing Inspection Program, Rent Registry, and Rental Tenant Protection Program, which provides for written leases, minimum lease terms, and relocation assistance when the tenant is subject to a no-cause eviction.2 These measures are an important part of maintaining safe, healthy, and stable homes for Concord residents. But they have little to do with the data and public input documented in the plan.

The Original Draft clearly and correctly states that “displacement due to economic pressures” is the primary contributing factor to fair housing problems in Concord.3 As median rents have increased by over 44% since 2010,4 outpacing the growth of renter incomes, a majority of tenants have become forced to pay too much in housing costs.5 This means that renters–who are disproportionately low-income, Black, and Latinx6–are structurally vulnerable to eviction and displacement, as landlords seek to replace lowerincome tenants, who are now more likely to fall behind on rent, with higher-income ones who can afford the higher rents. In simple terms, rents have risen to unaffordable levels, causing displacement in ways that exacerbate racial, economic, and gender inequities and homelessness in Concord.7(According to Contra Costa County’s most recent Point in Time Count, 23% of people experiencing unsheltered homelessness named eviction or foreclosure as the main reason they became unhoused.8 At 35%, Contra Costa saw the largest increase in homelessness of any county in the Bay Area.9) This much is clear. What isn’t clear is how the policies and programs identified by the City will meaningfully redress these harms. How, for example, will a rent registry, oneyear lease term, or housing inspection address the core issue–the structural mismatch between market rents and the incomes of members of protected classes?10 The City continues to assert that they will. But this is based on speculation, rather than data. 10 The one possible exception is the anti-harassment ordinance. However, anti-harassment measures aren’t fully effective unless they’re paired with rent stabilization and eviction protections. On their own, anti-harassment protections aren’t enough to protect renters from displacement, as landlords who might have resorted to harassment to replace their tenants can use unaffordable rent increases and pretextual evictions as alternative means to remove renters from their homes. 9 Lauren Hepler, Sarah Ravani, and Yoohyun Jung. May 16, 2022. “Homelessness Surged 35% in One Bay Area County. Here’s What New Data for Each Region Reveals.” San Francisco Chronicle. 8 Contra Costa County Department of Health Services. 2022. Homeless Point-in-Time Count & Survey Executive Summary, p. 2.
7 While it isn’t discussed extensively in the either Original or Revised Draft, the gender inequities of the housing crisis are thoroughly documented in a recent report from the Gender Equity Policy Institute, which was written at the behest of the Assembly Committee on Housing and Community Development. Gender Equity Policy Institute. August 2022. Gender & Housing in California: An Analysis of the Gender Impacts of California’s Housing Affordability Crisis.
6 City of Concord, May 2022, p. D63.
5 City of Concord, May 2022, p. D67.
4 City of Concord, May 2022, p. B16.
3 City of Concord. May 2022. Draft Housing Element (2023-2031), p. D81. 2 City of Concord. 2020. Residential Tenant Protection Program Fact Sheet. 4 Page 583 of 670
Allowing yet more time to pass while low-income families and residents of color are forced out of their homes and, in some cases, into the streets so as to evaluate the effectiveness of the City’s existing policies would be to willfully and knowingly allow these harms to continue unabated.

Whether in one year or ten years, these measures are unlikely to address the displacement crisis because they aren’t specifically designed to do so. Rather than require vulnerable residents to wait for the efficacy of these measures to be studied, the City should present concrete research and data demonstrating that the policies and programs preferred by the sitting City Councilmembers are likely to stop displacement due to economic pressures in the first place. If no such data exist, then the City should commit to evidence-based policies proven to prevent displacement, such as rent stabilization and just cause eviction protections. “Program 20 explicitly addresses residential tenant protections.” In our original letter, we stated that the data provided in Appendix D (Assessment of Fair Housing) clearly demonstrate that the policies included under Program 20 (Residential Tenant Protections) have failed to meaningfully mitigate displacement during the 5th Cycle. Indeed, the harmful and disparate impacts of displacement have only grown worse over the course of the current planning period, when many of these measures were in place. To reassert that Program 20 already provides tenant protections is to ignore the essence of our original comment–namely, that the City’s current tenant protection program is evidently incapable of addressing the full scope of the problem.
“Several program objectives have been revised to strengthen anti-displacement strategies, including Programs 10 and 24.”
The City added reference to a Tenant Opportunity to Purchase Act (TOPA)/Community Opportunity to Purchase Act (COPA) under Program 10 (Homeownership Assistance).

We applaud and appreciate this addition, as TOPA/COPA can serve as a valuable tool to stabilize low-income communities by converting rental properties from speculative commodities into permanently affordable homes and, in some cases, asset-building opportunities for residents of color who’ve been systematically denied homeownership opportunities.
5 Page 584 of 670
As drafted, however, Program 10 remains inadequate to address our original concerns.

First, Program 10 only commits to study “best practices” in TOPA/COPA policies by the end of December 2026.11 This objective is neither concrete nor timely enough to prevent the displacement of members of protected classes. Moreover, it doesn’t meet the basic statutory requirements for Housing Element programs, which must ensure “beneficial impacts…within the planning period.”12 Second, by filing this item under Program 10, the City indicates that it intends to pursue TOPA/COPA as a homeownership, rather than an anti-displacement, strategy. These two are not identical; as we remarked in our original letter, it’s clear from the City’s own data that, while important, homeownership programs are incapable of addressing Concord’s displacement crisis at the scale documented in Appendix D.13 This category error could be remedied, in part, if the City were to follow our previous recommendation to create a stand-alone Program “dedicated to proven, effective, and immediate anti-displacement strategies.” In addition, the City added Program 24 (Short Term Rentals) to the Revised Draft. Short term rentals (STRs) can contribute to the displacement of low-income renters if property owners, compelled by the promise of higher profits, convert large numbers of affordable rental housing units into STRs. As described in detail in our August 12th letter, however, this item was clearly added to the Revised Draft to satisfy the political preferences of the Concord City Councilmembers, rather than empirical data or community input. There’s no mention of STRs at any point in the Original Draft, including Appendix F (Community Engagement Summary); there’s no data that demonstrates a connection between STRs and Concord’s displacement crisis in Appendix D; and none of the written comments on the Original Draft raise concerns about STRs in general or as a cause of displacement in particular. (Out of hundreds of verbal comments throughout the public engagement process, only two mentioned STRs.) This stands in stark contrast to the overwhelming support, including from 54 out of 65 (83%) of the individuals or organizations who wrote comments on the Original Draft, for data-driven anti-displacement measures, like rent stabilization and just cause eviction protections. To be clear, while we agree that largescale conversion of rental housing to STRs can contribute to displacement, we find the statement that “[t]he Concord community has expressed concern over displacement of tenants through conversion of conventional rental dwelling units to short-term rentals”14 to be disingenuous and deceiving.

Further, Program 24 is written in such a way as to limit any potential positive impact on members of protected classes. First, like Program 10, it merely commits to study “best practices” in STR regulations by the end of 2026. Second, it states that, if STR policies 14 City of Concord, August 2022, p. 39.
13 City of Concord, May 2022, pp. A5-A8.
12 Gov. Code § 65583(c).
11 City of Concord, August 2022, p. 24.
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are adopted, then the City will conduct “intensive, bilingual [Spanish/English] outreach” among tenants in the Monument Corridor and include such information in its materials on tenant protection policies.15 However, this implies that the City sees STR regulations as tenant protections, when, in fact, they simply govern when and how property owners can use their units for short-term tenancies. This is another category error that makes it seem as though the City is committing to stronger anti-displacement measures without actually working toward meaningful tenant protections.

Thus, in contrast to the City’s claims, the revisions made to Programs 10 and 24 are unlikely to address the “displacement due to economic pressures” identified in Appendix D as the primary contributing factor to fair housing problems. “Programs 2, 6, 9, 10, 12, 17, 18, 19, 20, 22, and 24 all include objectives that directly or indirectly address displacement risk.”
We’ve already outlined our concerns regarding the inadequacy of Programs 10, 20, and 24, and we explain our concerns regarding Programs 9, 17, and 18 in the next section.

This leaves the following programs to be examined in more detail:
○ Program 2 (Addressing Constraints to Development): This program is meant to make it easier to develop new housing, including for people with extremely low incomes and/or disabilities. But it merely lists policies that will speed up housing development in general, not affordable or special needs housing in particular. In the absence of targeted strategies to incentivize subsidized versus market-rate housing and protect tenants from the effects of gentrification, encouraging new development is likely to increase displacement, rather than reduce it. ○ Program 6 (By-Right Development): The same applies to this program, given that a developer would only need to provide 20% affordable units–a low threshold–to receive streamlined approvals.
○ Program 12 (Inclusionary Housing): While we support efforts to implement and strengthen the City’s inclusionary housing policy, we’re concerned that allowing moderate-income units to meet inclusionary requirements will cause developers to prioritize building units for these households. This would increase gentrification pressures (for a family of four, moderate-income households can make anywhere between $110,000 and $171,000 per year16) while reducing the production of 16 City of Concord. 2022. Maximum Income Limits.
15 Ibid.
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new affordable units for people with the lowest incomes, who, as demonstrated in Appendix D, are most rent burdened and thus most vulnerable to displacement. ○ Program 19 (Replacement Requirements): This program is meant to ensure that demolition resulting from new development doesn’t lead to a loss in the number or affordability of rental housing units, or displacement of low-income tenants, in conformance with SB 330 (2019). While theoretically important, it’s clear from the City’s Annual Progress Reports that Concord hasn’t been the site of considerable new development; as of 2021, it had only permitted enough units to meet 16.4% of its 5th Cycle Regional Housing Needs Allocation (RHNA).17 It thus follows that the City didn’t document evidence of demolition as a cause of displacement in its Original Draft, as compared to displacement due to economic pressures. Further, as contemplated, Program 19 merely commits the City to provide education and enforcement around existing State law. However, SB 330 doesn’t go far enough to prevent loss of affordable housing capacity and ensure the displaced tenants have a meaningful right of return. The City should thus commit to develop more robust demolition protections. It has clear legal authority to pass regulations on the demolition of residential dwellings that are “more protective of lower income households, [require] the provision of greater number of units affordable to lower income households, or that [require] greater relocation assistance to displaced households.”18
In sum, in contrast to the City’s claims, Programs 2, 6, and 12 could actually increase displacement by accelerating market-rate and/or moderate-income development while undermining the provision of affordable housing for those most at risk of displacement. Meanwhile, Program 19 merely commits to the minimum requirements under State law to discourage demolition-induced displacement, a relatively rare occurrence.
“Programs 9, 10, 17 and 18 are intended to supplement other tenant protections and anti-displacement strategies, rather than serving as the City’s primary anti-displacement strategy.”
The City provided this statement in response to our concern that Appendix D identified programs, e.g. Middle Density and Homeownership Assistance, as anti-displacement strategies despite the lack of any data linking them to Concord’s displacement crisis in the Assessment of Fair Housing. If the City doesn’t see these programs as its “primary” 18 Gov. Code § 66300(d)(3).
17 California Department of Housing and Community Development. 2022. Housing Element Implementation and APR Data Dashboard, Slide 10.
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anti-displacement measures, then we ask that it stop categorizing them as such, since doing so seems calculated to make it appear as though the City is committed to a large number of anti-displacement policies when it has intentionally avoided tenant protection policies with the most direct evidentiary basis in the Assessment of Fair Housing. This further begs the question: What is the City’s “primary anti-displacement strategy”? In our original letter, we requested that the City create a program dedicated to data-driven and immediate anti-displacement measures, rather than cobbling together many programs that are only tangentially related to the main problem identified in Appendix D–namely, “displacement due to economic pressures.” The City didn’t address that request in the Revised Draft, so we reiterate it now.

2. Promote Integrated and Balanced Living Patterns by Rezoning Exclusionary Areas
“See Master Response #5...Several commenters have expressed concern regarding language in Appendix D…which indicated that ‘identification of moderate- and above moderate-income sites in [the central/western] area…will reverse the patterns of segregation…by promoting the area as a mixed-income neighborhood.’ However…the sites inventory has little if any effect on actual project income levels.” To start, we find the City’s claim in Master Response #5 that the Sites Inventory “should not be understood as ‘encouraging’ any particular project type” to contradict the premise and purpose of Housing Element law in general, and the Sites Inventory in particular. To the contrary, we believe that the City should work proactively to make sure that the sites identified for a particular income level are developed as such within the planning period to meet the city’s growing housing needs and affirmatively further fair housing (AFFH).

While it may technically be true that including a parcel in the Sites Inventory doesn’t guarantee that it’ll be developed for a particular income level, in Concord, it’s empirically true that the preponderance of high-density sites identified for new multi-family housing have been pursued for market-rate development that serves higher-income households.

The tables in Appendix 1 to this letter show which of the recently permitted development projects, as outlined in Table 2 of Appendix E (Sites Analysis), are located on land that was included in the Sites Inventory of Concord’s 5th Cycle Housing Element. It reveals that, of the market-rate units in the development pipeline, nearly 70% were included in the previous Sites Inventory. It also reveals that, of the high-density sites included in the previous Sites Inventory, five out of seven (amounting to 82% of the units permitted on these sites) have since been permitted for market-rate housing–almost all of them in areas that are sensitive to gentrification and displacement. Indeed, across all recently 9 Page 588 of 670
permitted developments, the vast majority of market-rate units (90%) were permitted in sensitive communities.

This implies that inclusion in the Sites Inventory is strongly correlated with development activity, and that high-density zoning–which in Concord is over-concentrated in sensitive communities and under-concentrated in exclusionary zones–is also strongly correlated with market-rate development that’s likely to increase gentrification pressure. Thus, the City’s comments on this issue disregard empirical data on development patterns, including the ways that uneven zoning patterns across lower- and higher-income neighborhoods, and a lack of affordable housing resources, tend to steer marketrate development into communities where it increases displacement pressures, rather than equitable development outcomes.
“This section of Appendix D has been revised as follows: ‘The Sites Analysis’ identification of sites in this central/western area does not exacerbate patterns of segregation, because: (1) the Sites Analysis is merely an indicator of capacity for new development but does not itself influence or determine what income levels the market will ultimately provide; (2) the programs of the Housing Element will help to reverse and improve patterns of segregation throughout the community…by strengthening tenant protections, incentivizing the production and preservation of deed-restricted affordable units, targeting investments grants funds and outreach to the R/ECAP, and leveraging and advocating for more affordable housing funds…; and (3) the Housing Element Update will increase opportunities for medium and high residential densities in areas with access to resources, outside of lower-resource areas, through the rezoning program in Objective 8.6.’”
The City responded to our comment by striking the most concerning language from p.

D36–that is, the claim that encouraging housing for Whiter and wealthier residents in the Monument Corridor was a means of “integrating the community”19–but it didn’t do anything to address this issue in the Sites Inventory. While the language and logic presented in the Original Draft is telling, the actual inclusion of moderate- and abovemoderate income sites in the city’s lowest-income neighborhood is the actual concern.

Simply revising the language without modifying the underlying policy amounts to disregarding the issue.

Still, we’ll respond to each of the three comments in the amended language in turn. 19 City of Concord, May 2022, p. D36.
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“(1) The Sites Analysis is merely an indicator of capacity for new development but does not itself influence or determine what income levels the market will ultimately provide.”
We’ve already questioned the accuracy of the idea that the Sites Analysis “does not itself influence or determine what income levels the market will ultimately provide.” But setting that aside, this statement makes it sound as if the City has only identified land in the Monument Corridor for higher-income housing to show that there’s capacity to meet the RHNA for all income levels under existing zoning. As we argued in our original letter, this approach reinforces the status quo of existing land use patterns, which, as shown in Appendix D, have created racial and economic segregation in Concord. Indeed, the disproportionate focus on zoning capacity–to the exclusion of other considerations, like equity–ignores a critical point: not all new residential development is good development.

While, in some communities, new development leads to equitable opportunity, in others, it leads to displacement. In contradiction to its expressed concern about displacement, Concord continues to double down on the latter when it should prioritize the former. By scrounging up capacity for new development, including moderate- and above-moderateincome units, in the Monument Corridor, the City is in effect deferring the more urgent work of increasing capacity in exclusionary communities, where new units would affirmatively further fair housing.
(2) “The programs of the Housing Element will help to reverse and improve patterns of segregation throughout the community…by strengthening tenant protections, incentivizing the production and preservation of deed-restricted affordable units, targeting investments grants funds and outreach to the R/ECAP, and leveraging and advocating for more affordable housing funds.” While important, the activities listed here–for example, strengthening tenant protections or preserving and producing affordable housing under the current zoning–won’t actually do anything to reduce segregation, which is a key part of the AFFH requirement. The most direct and equitable way to reverse harmful patterns of segregation is to promote more multi-family and deed-restricted affordable development in racially concentrated areas of affluence, which, in Concord, requires intentional and immediate upzoning of the most segregated tracts in the city.
(3) “The Housing Element Update will increase opportunities for medium and high residential densities in areas with access to resources, outside of lower-resource areas, through the rezoning program in Objective 8.6.” 11 Page 590 of 670
We provide our comments on the need for more targeted and measurable elements of Objective 8.6 further below.
“See Master Response #6...While the City has sufficient and adequate capacity to accommodate the RHNA at all income levels, the City has committed to a series of programs to Affirmatively Further Fair Housing through increased housing opportunities across the city.”
We take this as a tacit recognition that neither the existing zoning nor Sites Inventory is capable of meeting the AFFH mandate to “[replace] segregated living patterns with truly integrated and balanced living patterns.”20 This simply reinforces our concerns and adds urgency to this letter and related comments.
“See Master Response #8…Timing associated with program objectives represents the point at which the program is expected to be fully implemented. Timeframes consider the full length of time needed between the initial and final stages of program implementation, which includes any associated California Environmental Quality Act (CEQA) review, as well as the availability of staff and other needed resources for program implementation. The planning period for the Housing Element is 2023-2031 and all programs are scheduled to be implemented within the first half of the planning cycle, no later than 2026.”
We appreciate this point as well as the inclusion of a start time in Objective 8.6. At the same time, countless members of protected classes have already been displaced from Concord, and countless more are at risk of displacement in the near future. Thus, even if all of the Housing Element programs are meant to be implemented within the first half of the 6th Cycle, frontloading certain programs within the 2023-2026 time period still amounts to prioritizing some actions over others. This is time that vulnerable residents can’t afford for us to waste. Therefore, we ask the City to prioritize programs that meaningfully address the top contributing factors to fair housing problems, such as policies to stop displacement and reduce segregation, over issues that bear no relationship to the Assessment of Fair Housing.
“Regarding the areas to be considered for rezoning, see revised language in Program 8…[R]ezoning will occur in areas that are not designated as ‘Low Resource’ on the TCAC Opportunity Maps, which encompasses a large portion of the City designated 20 Gov. Code § 8899.50(a).
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either as ‘Moderate Resource’ or ‘High Resource.’ The language regarding ‘amenities and/or public transit’ is found in the introductory text for Program 8 and is not in the actual objective. This language has been revised to clarify that amenities and public transit will be considered during the rezoning, but would not be a quantifiable objective.

Therefore, this rezoning program allows adequate flexibility to increase housing opportunities in middle- and upper-income areas outside of existing lower-income areas with amenities and transit.”
We appreciate that the City has tried to clarify the language of Objective 8.6, especially by noting that amenities and transit are relevant but not sufficient criteria to affirmatively further fair housing. Still, we think more can and should be done to ensure that rezoning efforts meaningfully mitigate the harms of racial and economic segregation in Concord.

First and foremost, the City should commit to a race-conscious approach when making decisions about where to upzone land and promote affordable housing development.

AFFH is meant, in part, to remedy the intergenerational harms that have been created and perpetuated through intentional racial segregation. Race-conscious harms require race-conscious solutions. However, the City continues to organize its approach around the race-blind “resource” designation used by the State Tax Credit Allocation Committee (TCAC), while more appropriate race-conscious data sources exist. For example, the Bay Area Equity Atlas has recently published an analysis of regional segregation that uses a metric called the “index of concentration at the extremes” (CE) to identify where racial segregation intersects with economic inequality.21 The CE, in other words, can be used to identify and target exclusionary areas of White wealth and economic advantage for zoning reform, thus advancing AFFH goals.

The Equity Atlas has provided data on race/class segregation in Concord according to two measures: (1) the segregation of White homeowners from renters of color and (2) the segregation of high-income White households (those earning more than $150,000 per year) from low-income households of color (those earning less than $40,000 per year). These data, which are provided at the Census Tract level, are based on the American Communities Survey 5-Year Estimates from 2020.22 Our side-by-side analysis of the TCAC and Equity Atlas scores for the top ten most segregated Census Tracts in Concord (see Appendix 2) shows that TCAC is a poor proxy for racial and economic segregation, and thus shouldn’t be used as the primary basis for rezoning efforts when desegregation is the aim. For example, 22 Bay Area Equity Atlas. 2022. “Mapping Racial and Economic Segregation in Concord.” 21 Bay Area Equity Atlas. July 27, 2022. “One in 10 Bay Area Neighborhoods Are Segregated Areas of White Wealth.”
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TCAC actually designates two out of the ten Tracts with the highest aggregated CE scores as areas of “High Segregation and Poverty,” but this overlooks considerable inequalities. Census Tract 3300 in North Concord, for instance, is designated “High Segregation and Poverty” even though, according to the Equity Atlas, it’s home to over 400 high-income White households and zero low-income Black and Latinx households.

Meanwhile, several Census Tracts that are designated “Moderate Resource” by TCAC actually demonstrate severe patterns of racial and economic segregation. Census Tract 3381.02 in Southwest Concord, for example, is home to 768 White owner households but no Black or Asian American/Pacific Islander renter households, and only 41 Latinx ones.

In sum, relying upon TCAC’s “resource” designation system to determine where to increase residential densities and affordable housing development will in no way guarantee that the most racially and economically segregated areas of the city will be prioritized for efforts to affirmatively further fair housing. Again, the AFFH mandate calls upon localities to “[replace] segregated living patterns with truly integrated and balanced living patterns.” In Concord, it’s evident that these patterns are deeply racialized. The City should thus commit to using data that considers both racial segregation and economic inequality, like those provided by the Equity Atlas, to direct its rezoning program. In addition, it should include a clear commitment to consult with members of the communities most harmed by segregation and the organizations that serve them at every stage of the rezoning process; specify a minimum amount of new multi-family units to be zoned for; and proactively encourage affordable development in exclusionary communities by identifying prime sites, dedicating financial resources, and recruiting non-profit development partners. This more robust and intentional approach is the only way to ensure that the inequities identified in the Assessment of Fair Housing will truly be addressed.

3. Increase Funding for Affordable Housing Development, Acquisition-Rehab, and Community Land Trusts
“Additional objectives related to the pursuit of funding have been added to Program 8, and Program 25 is a newly incorporated program to address funding.” The City added some additional specificity to the affordable housing funding measures included under Program 8 (Fair Housing). Program 8 now calls for learning more about the potential for new regional resources to support affordable housing development and preservation in Concord and, if necessary, “coordinating” with the agencies responsible for the Contra Costa County Measure X Housing Fund (MXHF) and Bay Area Housing 14 Page 593 of 670
Finance Authority (BAHFA).23 In addition, the City included Program 25 (Advocacy for State Housing Legislation, Policies and Funding), which commits to lobbying for State policies that might increase affordable housing funding in Concord.

While we appreciate the City’s responsiveness to our letter on this point, we remain concerned that Objectives 8.4 and 8.5 and Program 25 are still too vague to ensure that Concord can generate the increase in local source funding that it needs to meet even a portion of its greatly expanded lower-income RHNA. This approach is consistent with the pattern we described in our original letter, whereby the City relies upon County and State agencies rather than cultivate its own opportunities to generate funding resources.

The City should commit to concrete actions that will increase local funding for affordable housing development, acquisition-rehab, and community land trust purchases. This should include establishing or increasing taxes on higher-cost real-estate transactions, vacant properties, or large landlords, and supporting community benefit negotiations at large developments, such as the Concord Naval Weapons Station.

Conclusion
We, the undersigned organizations, thank you for considering our additional comments and urge you to continue to work with directly impacted residents and the organizations that serve them to ensure that Concord’s 6th Cycle Housing Element meets the City’s equity goals and the State’s AFFH requirements.

Sincerely,

1. East Bay Alliance for a Sustainable Economy

2. Monument Impact

3. Public Advocates

4. Center for Human Development

5. Central County Regional Group

6. Centro Legal de la Raza

7. Choice in Aging

8. CoCoKids

9. Concord Communities Alliance

10.Contra Costa Asian American Pacific Islander Coalition

11. Contra Costa Crisis Center
23 City of Concord, August 2022, p. 20.
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12.Contra Costa Immigrant Rights Alliance

13.Contra Costa Labor Council

14.Contra Costa Senior Legal Services

15.East Bay Community Foundation

16.East Bay Housing Organizations

17.East County Community Leaders Network

18.Ensuring Opportunity Campaign

19.Faith Alliance for a Moral Economy

20.Faith in Action East Bay

21.Greenbelt Alliance

22.Healthy & Active Before 5

23.Hope Solutions

24.Jewish Family and Community Services East Bay

25.Latino Community Foundation

26.Meals on Wheels - Diablo Region

27.NAMI Contra Costa

28.Neto Community Network

29.Portia Bell Hume Center

30.Richmond Community Foundation/RCF Connects

31.Shelter, Inc.

32.SparkPoint Contra Costa

33.STAND! For Families Free of Violence

34.Tenants Together

35.Todos Santos Tenants Union

36.Trinity Center

37.Urban Habitat

38.We Care Services for Children
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October 13, 2022
To: Bay Area Local Planning Directors
RE: Proposed Update Process for Bay Area Housing Elements to Achieve Meaningful Public Participation
Dear Bay Area Planning Directors,
We, the Bay Area Housing Element Working Group, are writing to urge you to prioritize community input to develop strong housing policy in the final stages of the 2023-2031 Housing Element Planning process. The Bay Area Housing Element Working Group is convened by the 6 Wins for Social Equity Network, a regional equity coalition founded in 2010. The Housing Element Working Group consists of housing law and policy experts working together to ensure the region is one where everyone can find a home. We believe that strong housing policy and planning is an essential step towards that vision.

Deep community engagement is at the heart of the Housing Element process in California. True community engagement requires more than just extensive outreach to the community. It must be designed to facilitate the meaningful dialogue and co-planning with your residents necessary to realize the potential of the Bay Area as a vibrant, diverse, and healthy community. After months of work, the Bay Area jurisdictions have largely submitted first drafts of your 2023-2031 Housing Elements to the California Department of Housing and Community Development (HCD), and have recently received or are awaiting a letter from HCD reviewing your draft and recommending changes. In this next stage it is important not only to respond to HCD’s comments, but to do so in a way that meaningfully involves the community in that response.

This requires that you give community members an adequate opportunity to read, analyze, and comment on the updates, and then transparently incorporate that feedback into your final Housing Element before submitting a final version to HCD.

State law requires local governments to make “a diligent effort...to achieve public participation of all economic segments of the community in the development of the housing element.” (Gov. Code 65583(c)(9) (emphasis added)). “A diligent effort means going beyond simply giving the public an opportunity to provide input and should be proactively and broadly conducted through a variety of methods to assure access and participation.” (Department of Housing and Community Development (HCD), Affirmatively Furthering Fair Housing (AFFH) Guidance Memo, April 2021, p. 21).

In order to ensure that your communities continue to have the opportunity to understand and influence your decisions, we recommend you take the following steps:

1. Publish the review letter you receive from HCD on your Housing Element website as soon as you receive it. This will ensure that community members have as much time as possible to understand HCD’s opinions and concerns, so that they can best participate in updating your Housing Element and ensure it prioritizes equity and fairness.

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2. Hold one or more community meetings, work sessions, and/or public hearings to take comments on the HCD review findings and how best to address them before the next draft is prepared. Incorporate as much community input as possible, including expertise from local community based organizations, about housing needs and solutions. Consider all proposed analyses and recommendations. A diverse range of methods for soliciting comments from the community will facilitate the input of residents with disabilities and language access needs. This input is necessary to your ability to fully consider the housing needs of disabled residents and English Language Learners in your jurisdiction, as the State Housing Element law requires.

3. Once the revised draft is finalized, post it on your Housing Element website in both a clean version and a version with visible redlines against the initial public review draft. This will allow community members to more easily review the changes you have made, which will in turn: enable the community to help ensure compliance with state law; clarify the reasons behind the jurisdiction’s decisions regarding revisions and community input; and help build trust. Ensuring transparency and accountability in the process will yield the strongest possible final Housing Element.

4. Publish a summary of comments received and a list of changes made to the original draft identifying which comments or policy suggestions were accepted, which were not, and why. This, again, enables the community ease in reviewing and understanding the changes the jurisdiction has made. It is similar to the federal Administrative Procedure Act standards for public input in decision-making processes, and provides a best practice towards developing trust between governments and their constituents. That trust is even more important at the local level.

5. While state law only requires a 7-day comment period, you should provide a 30-day public comment period after releasing revised drafts. Allowing the necessary time for community members to review the Housing Element will improve the quality of the public input received by the city. Cities that use higher-quality public input to inform their Housing Elements will increase the likelihood of certification by HCD, as their Housing Elements will better address the needs of the community. Providing a 30-day public comment period additionally furthers the spirit of the legal requirements under California Housing Element law, and will allow for better policy outcomes.

The Housing Element Working Group remains committed to working in partnership with Bay Area jurisdictions to ensure that, from start to finish, the Housing Element update process is inclusive, laying out a roadmap to effectively and equitably address the affordable housing crisis. All Bay Area residents deserve a safe, accessible, and affordable place to call home, with a range of choices free of barriers to fair housing. The Housing Element update process provides the tools to do just that. We look forward to continuing this work with you.

Regards,
Bay Area Housing Element Working Group

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December 16th, 2022
To: Aaron Sage, Principal Planner
Mindy Gentry, Planning Manager
Asha Bleier, Consultant Project Manager, Dudek
Elizabeth Dickson, Planner, Dudek
Laura Hoffmeister, Mayor Jason Laub, Planning Commissioner Edi Birsan, Vice Mayor Aeysha Corio, Planning Commissioner Carlyn Obringer, Councilmember Raymond Barbour, Planning Commissioner Laura Nakamura, Councilmember John Mercurio, Planning Commissioner Dominic Aliano, Councilmember Craig Mizutani, Planning Commissioner Cc: David Zisser, Assistant Deputy Director, HCD
Melinda Coy, Land Use and Planning Manager, HCD
RE: Department of Housing and Community Development (HCD) Comments on City of Concord’s 6th Cycle Draft Housing Element
Dear Planning Staff, Consultants, City Councilmembers, and Planning Commissioners, On November 14th, 2022, HCD issued a letter listing the changes the City of Concord must make to its 6th Cycle Draft Housing Element in order to comply with State law. If the City fails to make these changes, then it risks incurring a range of State-mandated penalties, from fines and disqualification from state and federal funding streams to the loss of land use and permitting powers.1In the following letter, submitted on behalf of the Raise the Roof Coalition, we wish to return to the recommendations that we made in the letters dated June 27th, 2022 and October 10th, 2022 to highlight the ways that our proposals address HCD’s comments, thus contributing to a clear path to certification. As a reminder, these recommendations were endorsed by over 37 organizations that serve 1 See Gov. Code § 65755.
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and work alongside the residents most impacted by Concord’s affordable housing and homelessness crises–people whose input is meant to be centered in the development of the Housing Element–including low-income renters, immigrants, and people of color. 2 In order to distinguish HCD’s comments from our own, all quotations and paraphrases from HCD’s letter are marked in red.

1. Include Clear Commitments for the City Council to Consider Local Rent Stabilization and Just Cause Eviction Protections by 2024 HCD noted that, in order to affirmatively further fair housing (AFFH) in accordance with AB 686, the Housing Element must include programs that directly address fair housing problems identified through a complete and thorough Assessment of Fair Housing. It is not enough to claim, without evidence or reason, that a general program is adequate to address the specific and acute fair housing problems impacting the community. Rather, according to HCD, “[g]oals and actions must specifically respond to the…identified and prioritized contributing factors to fair housing issues and must be significant and meaningful enough to overcome identified patterns and trends (italics added).”3 In our letter dated October 10th, 2022, we came to an identical conclusion. We agreed with the Assessment of Fair Housing (Appendix D) that “displacement due to economic pressures” is in fact the primary contributing factor to fair housing problems in Concord.4 However, through careful consideration of each of the City’s proposed anti-displacement strategies, we concluded that the draft Programs neither “respond[ed] to…the identified and prioritized contributing factors,” i.e. displacement due to economic pressures, nor were “significant and meaningful enough to overcome identified patterns and trends.” Indeed, in certain cases, we noted that Programs that were identified by the City as anti-displacement measures actually had the potential to make displacement worse.

As a reminder, we raised the following concerns regarding the proposed Programs that the City claimed would either “directly or indirectly address displacement risk.”5 ● Program 2 (Addressing Constraints to Development), Program 6 (By-Right Development), and Program 12 (Inclusionary Housing) may actually increase displacement by accelerating market-rate and/or moderate-income development 5 City of Concord. August 2022. Revised Draft Housing Element (2023-2031), p. H35. 4 City of Concord. May 2022. Draft Housing Element (2023-2031), p. D81. 3 California Department of Housing and Community Development (HCD). November 14th, 2022. “Appendix: City of Concord,” p. 11.
2 Per Gov. Code § 65583(c)(9), localities are required to make a “diligent effort…to achieve public participation of all economic segments of the community in the development of the housing element.” 2 Page 602 of 670
while undermining the provision of affordable housing for people with the lowest incomes and greatest rent burdens.
● Program 9 (Middle Density), Program 10 (Homeownership Assistance), Program 17 (Preservation and Housing Rehabilitation), and Program 18 (Preservation of At-Risk Affordable Housing Units) are–in the City’s words– meant to “supplement other tenant protections and anti-displacement strategies, rather than serving [sic] as the City’s primary anti-displacement strategy.”6 Given their secondary–and, in some cases, tenuous (e.g. Middle Density)–relationship to the forms of displacement identified in the Assessment of Fair Housing, these programs distract from the core need to address “displacement due to economic pressures.”
● Program 10 (TOPA/COPA), while potentially important, is treated as a long-term homeownership strategy, and thus, as written, is unable to quickly and effectively mitigate the displacement of low-income renters at the scale required to ensure the impact is “significant and meaningful enough to overcome identified patterns and trends.”
● Program 19 (Replacement Requirements) merely commits to the minimum requirements under State law to discourage demolition-induced displacement.

Moreover, given the lack of direct redevelopment in Concord, as documented in the City’s Annual Progress Reports (APRs), demolition-induced displacement is far less threatening to the housing security of low-income renters than excessive rent increases and profit-motivated evictions.
● The City’s own data (Appendix D) show that Program 20 (Residential Tenant Protection Program) has proven inadequate to address displacement. Instead, displacement has increased during the 5th Cycle, when most of these programs have been in effect.
● Program 24 (STRs), while potentially important, bears no empirical relationship to the Assessment of Fair Housing or Local Knowledge. Like Program 10, it is designed as a long-term and indirect strategy, rather than one that is likely to have a “beneficial impact” on reducing displacement during the 6th Cycle.7 We concur with HCD that these programs, as a whole, are simply not “significant and meaningful enough” to address displacement due to economic pressures. In order to receive HCD certification, and thus have a legally compliant Housing Element, the City must “add or modify programs.”8 While HCD did not specify any particular additions or modifications, we reiterate that rent stabilization and local eviction protections are 8 HCD, November 14th, 2022, p. 11.
7 Per Gov. Code § 65583(c), programs must be timed to ensure “beneficial impacts…within the planning period.”
6 City of Concord, August 2022, p. H35.
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needed to reduce displacement due to economic pressures, and thus meet the statutory requirements of Housing Element law.

As revealed in our letter dated August 12th, 2022, in painstaking numeric detail, these policies represent the primary recommendation made throughout not only the Housing Element Update, but also a number of policy debates about displacement in Concord that have occurred since 2016. Indeed, 54 out of 65 of the individuals or organizations who submitted comments on the Draft (83%) called for more robust tenant protections, including rent stabilization and just cause eviction policies. Therefore, in line with HCD’s remarks, we wish to remind the City that its Assessment of Fair Housing is required to “utiliz[e] knowledge from local and regional advocates, public comments, and service providers.”9 And given that the Programs must be “[b]ased on the outcomes of that analysis,”10 it follows that the City has, to date, failed to adequately consider and incorporate Local Knowledge into the creation of the Housing Element. 11 2. Promote Integrated and Balanced Living Patterns by Rezoning Exclusionary Areas
HCD stated that, while the Sites Inventory must demonstrate that there is adequate capacity to meet Concord’s Regional Housing Needs Allocation (RHNA), it must also demonstrate that these sites are “distributed throughout the community in a manner that AFFH.” In other words, it must show how the location of development sites by proposed income level “improves or exacerbates conditions” of racial and economic segregation.12 This accords exactly with the concerns that we raised in our previous letters. Namely, we argued that by identifying sites in the Monument Corridor for moderate- and abovemoderate-income housing, and by treating the purported lack of sites for lower-income housing in exclusionary areas as a problem to be addressed in the future, the Housing Element failed to meet the AFFH mandate to “[replace] segregated living patterns with truly integrated and balanced living patterns.”13 Indeed, the City has studiously avoided identifying even one site for lower-income housing in the southern and eastern parts of Concord. It has thus worked to maintain the immoral and illegal status quo of racial and economic segregation.
13 Gov. Code § 8899.50(a).
12 HCD, November 14th, 2022, p. 2.
11 Per State law, localities are required to consider “local data and knowledge” in their evaluation of fair housing issues. See HCD. April 2021. Affirmatively Furthering Fair Housing: Guidance for All Public Entities and for Housing Elements, p. 24. See also Gov. Code § 65583(c)(9-10). 10 HCD, November 14th, 2022, p. 11.
9 HCD, November 14th, 2022, p. 2.
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This, as we argued, stems in part from the City’s failure to consider existing patterns of segregation and targeted strategies for desegregation in terms of race. HCD addressed this exact issue, stating that the Assessment of Fair Housing must analyze regional and local patterns of segregation by race. Likewise, HCD stated that the City must identify Concord’s existing Racially Concentrated Areas of Affluence. 14 In our previous letter, we
drew attention to these deficiencies by providing data from the Bay Area Equity Atlas that reveal that there are many neighborhoods in which high-income and/or homeowner White households are segregated from low-income and/or renter households of color. If the City were to compare the Sites Inventory against these maps, it would be clear that the distribution of sites “exacerbates,” rather than “improves,” fair housing problems in Concord.

Therefore, we state again that, in order to comply with State law, the City should (a) immediately identify sites, funding, and non-profit partners to build lower-income housing in exclusionary areas of opportunity, (b) immediately remove moderateand above-moderate-income sites from areas that are sensitive to gentrification, and (c) commit to consulting race-conscious data and communities with lived experience in making future decisions about where to upzone land to promote affordable and balanced housing development.

3. Increase Funding for Affordable Housing Development, Acquisition-Rehab, and Community Land Trusts
Despite the large size of the City’s lower-income RHNA, the Draft does not take enough proactive measures to expand local source funding for affordable housing development, acquisition-rehab, and community land trusts. While HCD did not comment on the issue of revenue generation directly, it did state that the City must “clarify the percent required for affordable housing for inclusionary requirements” under Program 12 (Inclusionary Housing).15 Given that this represents the only Program that would help the City make up for the current gap in local source funding, we too would like to see the City specify not only (a) the percentage and income levels for the inclusionary ordinance, but also (b) the number of lower-income units that the policy is likely to create during the 6th Cycle, whether through on-site development or in-lieu fees.

At the November 29th, 2022 meeting of the Housing and Economic Development (HED) Committee, staff proposed that the City set its inclusionary requirement at 5 or 6%, the vast majority of which would be moderate-income units.16 This is an unacceptable 16 See staff report for HED Meeting, November 29th, 2022. 15 HCD, November 14th, 2022, p. 10.
14 HCD, November 14th, 2022, p. 1.
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proposal. First, it is less supportive of affordable housing development than the policies of surrounding cities. Second, it will have a minimal impact, at best, on the City’s lowerincome RHNA. In the absence of other Programs to increase City funding for affordable housing, it is obvious that such a minimal approach will put the City on a path to, once again, miss the mark of its RHNA requirements, especially for extremely-low-income (ELI) residents. Indeed, HCD noted that the Draft fails to demonstrate how it will fund these much-needed ELI homes.
17 Therefore, we repeat that the City should commit to additional actions that will increase local funding for affordable housing development, acquisition-rehab, and community land trust purchases, such as increasing taxes on higher-cost real-estate transactions, vacant properties, and large landlords and supporting community benefit negotiations at large developments like the Concord Naval Weapons Station.

In conclusion, there is substantial alignment between our existing recommendations and HCD’s requirements regarding legal compliance with Housing Element law. As it revises its Housing Element, we urge the City to heed these recommendations and, in so doing, finally put the voices and expertise of impacted community members at the center of its Housing Element Update. There are severe consequences for non-compliance, ranging from fines and disqualification from state and federal funding streams to the loss of land use and permitting powers.18 Now is the time to correct course and produce a Housing Element that will put Concord on a fair, equitable, and inclusive path for the future.

Sincerely,
Alex Werth
Policy and Research Advisor
East Bay Alliance for a Sustainable Economy (EBASE)
On behalf of the Raise the Roof Coalition
18 See Gov. Code § 65755.
17 HCD, November 14th, 2022, p. 11.
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December 19, 2022
To: Aaron Sage, Principal Planner
Mindy Gentry, Planning Manager
Asha Bleier, Consultant Project Manager, Dudek
Elizabeth Dickson, Planner, Dudek
Laura Hoffmeister, Mayor
Edi Birsan, Vice-Mayor
Carlyn Obringer, Councilmember
Laura Nakamura, Councilmember
Dominic Aliano, Councilmember
Jason Laub, Planning Commissioner
Mark Weinmann, Planning Commissioner
Raymond Barbour, Planning Commissioner
John Mercurio, Planning Commissioner
Craig Mizutani, Planning Commissioner
Cc: David Zisser, Assistant Deputy Director, HCD
Melinda Coy, Land Use and Planning Manager, HCD
RE: Comments on HCD’s Response Letter to Concord’s Draft 6th Cycle Housing Element Dear Planning Staff, Consultants, City Councilmembers, and Planning Commissioners, Thank you for the opportunity to comment on Concord’s Draft Housing Element. East Bay Housing Organizations (EBHO) works to produce, preserve, and protect affordable housing opportunities for low-income communities across Contra Costa and Alameda Counties. Many of our 400+ individual and organizational members live, work, or provide affordable homes in Concord.

Having reviewed the Draft Housing Element and the response letter from HCD, we would like to submit the following comments in support of creating a Housing Element that will adequately address the goals of the Regional Housing Needs Allocation (RHNA), provide affordable housing and tenant protections to Concord residents, and receive the approval of the State.

To start, EBHO recommends increasing the percentage of affordable housing required as part of Program 12 to improve Concord’s Inclusionary Housing Program (IHP) as well as raising in lieu fees to the maximum feasible level. As we stated in our comments during the recent hearing of the Housing and Economic Development (HED) Committee, the 6% inclusionary requirement recommended for rental housing developments is far below the standard used by any other city. This

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is especially worrying considering that most of the units created by this requirement would be for moderate income residents as opposed to lower incomes residents—an imbalance that makes Concord an outlier among similar jurisdictions. In their letter, HCD specifically requires the City to include the proposed inclusionary percentage as well as an analysis of the effects of this requirement in the next draft of the Housing Element. We do not believe the current low percentage of units required meets the intent of the State’s requirements, as a thorough analysis would illustrate the extremely low number of deeply affordable units and modest amount of affordable housing funding this program would create. This is supported by our own analysis of the proposed requirement as well as academic studies that show that inclusionary requirements in California do not impede new construction.1 We also find it worrying that City staff and Council members repeatedly stated during the November 29th HED committee meeting that the inclusionary requirements they were considering were “not the means to solve our RHNA.” The inclusion of this program in the Housing Element, as required by HCD both statutorily and in their response letter, belies this claim and calls into question the City’s commitment to fulfilling the promises as part of this process.

Setting productive inclusionary requirements and associated in-lieu fees is necessary to fulfill Concord’s RHNA allocation as it not only creates affordable units directly, but offers the chance to bring in much more affordable housing funding than previously. Despite explicit interest in affordable development among local officials and residents, Concord is currently constrained in its ability to meet the demand for affordable homes by the small size of its Affordable Housing Trust Fund (AHTF). As of March 2022, there was only $6 million in the AHTF, which is less than the $7.8 million used to fund the 62-unit Galindo Terrace project–the only development to receive a grant from the AHTF in recent years. It is thus critical that the Inclusionary Housing requirements, and their in lieu fee structure, are revised to create the maximum amount of lower-income homes and fee revenue.

Making program 12 more aggressive is also clearly supported by the Draft Housing Needs Assessment (Appendix B), which finds that low-income households experience cost burden at a much higher rate than those of moderate-income in Concord. 71% of households making less than 80% of Area Median Income (AMI) experience cost burden, while only 37% of households making between 80 and 100% of AMI do.2 The City, in its recent discussion of their ordinance, turns this metric on its head; justifying their all but nonexistent requirement for deeply affordable units by pointing to the difficulty and cost gap for private developers to provide lower income units as opposed to moderate. This reasoning seems to forget that the goal of an inclusionary requirement should be to reduce the affordability gap for lower income residents, rather than maximize developer profit by minimizing the cost of providing units that fulfill the requirement. Thus, as a measurable goal for Program 12, we strongly urge the city to rebalance the requirement away from moderate income units and towards low and verylow income units.

1 Mukhij, V., Regus, L., Slovin, S., & Das, A, “Can Inclusionary Zoning Be an Effective and Efficient Housing Policy? Evidence from Los Angeles and Orange Counties” Journal of Urban Affairs, 32, 2. April 2010 2 City of Concord. May 2022. Draft Housing Element (2023-2031), p. B17.

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Unfortunately, Program 12 is the only significant proposal in the draft Housing Element to increase the scale of affordable housing funding in any form. While the City has amended Program 8 to take account of the fact that Contra Costa County has already approved the creation of the Regional Housing Trust Fund (RHTF), exploring this program’s potential to fund housing is not enough to address the need.

The RHTF will only disperse $12 million per year and covers the entire county as well as all activities related to housing production, preservation, and protection. It will not meaningfully increase Concord’s investment in affordable housing development. The City should amend this item to explicitly commit to development of additional funding sources for affordable housing creation as well as create a realistic timeline for doing so. The lack of such local funding currently makes it nearly impossible for 100% affordable projects to be competitive for state, federal, and regional funding. This should be especially vital considering the comments highlighted earlier regarding Inclusionary requirements: if the city does not expect to meaningfully address its affordable unit allocation via the inclusion of affordable units in market rate projects, it must propose an alternate means of funding 100% affordable projects. No such proposal is currently present in the draft Housing Element, casting doubt on the City’s commitment to meeting their required affordable housing goals.

Next, we want to emphasize HCD’s requirement in several sections of their letter that the City must analyze and propose changes to their incentive structure and approval process for certain types of housing. As mentioned in our previous letter, the City should consider reducing or waiving fees and applying streamlined review processes for affordable developments, as these kinds of administrative hurdles can significantly hamper construction. As pointed out by HCD, the City is required to take some of these actions for developments that provide certain special needs housing, including housing for Extremely Low-Income (ELI) residents. Their response also notes the need for the City to more comprehensively analyze its approval process, design review, and permitting procedures, in order to firmly establish that they are not constraints on housing production. We urge the city to completely analyze these processes and commit to proactive measures as part of Program 11 to alleviate constraints on the development of affordable and special needs housing. These efforts should be a top priority for completion early in the effective term of this housing element.

HCD also points to the statutory requirement that the City develop a comprehensive program to Affirmatively Further Fair Housing (AFFH). As pointed out by our partners in the Raise the Roof (RTR) coalition; the City’s proposed response to the lack of fair housing—most seriously illustrated by ongoing displacement of low income residents—is too broad and does not adequately address the root causes of the problem, as identified in the City’s own Assessment of Fair Housing. HCD’s findings support this conclusion closely, concluding that the current draft does not “specifically respond to the…identified and prioritized contributing factors to fair housing issues” or include programs that are “significant and meaningful enough to overcome identified patterns and trends.” We strongly support both RTR and HCD’s conclusion that the city must develop a more robust program to AFFH, complete with specific commitments, milestones, geographic targeting, and numeric objectives.

Specifically, the City should commit to developing local eviction protections and rent stabilization measures, as these policies offer the best chance of fulfilling the State’s requirements by addressing the core issue.

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As noted by HCD, the requirements of AFFH extend to the site inventory in this draft, which does not do enough to distribute housing throughout the community in a manner that addresses socioeconomic and racial segregation. This is especially egregious along the Monument Corridor, which bears an oversized portion of market rate housing despite being the most clearly segregated area of the City; an action that will only contribute to gentrification. HCD further requires the next draft include specific commitments to rezoning publicly owned areas to ensure that the sites identified are capable of absorbing the units required by RHNA. We would especially like to repeat our concern, echoed by HCD, that the City has not justified their assumptions around affordable housing creation. Considering the lack of local investment and appropriately zoned high resource areas—both factors vital to the competitiveness of affordable housing projects for other funding, particularly tax credits—it is not realistic to assume that all of the sites identified for 100% affordable development will actually be built. In fact, the City is already reneging on these commitments, as a site identified in the draft for 100% affordable housing, Town Center II, is currently being offered for development with no requirement that it include any affordable units and no resources offered to make an affordable project possible. Considering that the parcel for this project was also recently reassessed to increase its asking price substantially, there is no chance it will be developed with the affordability and density identified in the Site Inventory. We therefore agree with HCD’s assessment that the City’s site inventory needs significant work to become realistic as well as meet Fair Housing and Affordable Housing requirements. We particularly emphasize the requirement to analyze the likelihood that sites will develop with the affordability and densities predicted, considering the lack of the competitive features and local resources that are necessary to develop affordable projects. Failure to provide such analysis runs counter to the requirements to AFFH and represents another sign that the City does not realistically expect to meet its RHNA allocation again.

Finally, we would like to call special attention to the link between this draft and the recently released term sheet proposed by Concord First Partners (CFP). Due to the changes made by CFP to the commitments of the Area Plan for the Reuse Area—namely increasing the number of units from 12,272 to 15,595 while maintaining the same number of affordable units—the information presented in the draft housing element is no longer accurate. This is of particular importance because HCD specifically requires a more complete analysis of units located within the Reuse area as well as a justification for the requirement that 25% of Reuse units be affordable. Any analysis that responds to this requirement must explain why the Reuse project is no longer requiring 25% of the units to be affordable; with the new term sheet only 3,020 out of 15,595 units (or 19%) are planned to be permanent affordable housing. CFP plans to make up the difference with deed-restricted junior accessory dwelling units (JADUs) attached to market-rate single family homes that are put up for sale.

We have serious concerns with this strategy for developing affordable housing due to the myriad difficulties attached to monitoring that JADUs are rented in compliance with affordability restriction.

While HCD did not have the chance to review the proposed JADU program, they do note that the Housing Element already relies too heavily on assumptions about ADU production and affordability, and require the City to develop realistic plans to monitor these factors and take necessary action to correct if they are falling below targets. We strongly support HCD’s requirement that the updated Housing Element draft include a thorough analysis of the feasibility of the affordable

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percentage required by the Area Plan and specified in the draft Housing Element. We further recommend that this analysis give extra attention to the proposed JADU units and offers a realistic assessment of the City’s ability to monitor their compliance with affordability requirements as part of HCD’s wider requirement that the City develop such a program for nonReuse Area ADUs.

We look forward to the new draft Housing Element, and encourage the City to reach out to us to discuss the changes that must be made to ensure a compliant and successful plan.

Sincerely,
Aaron Tiedemann
Policy Manager
East Bay Housing Organizations.

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Concord HEU CBO Listening Session
December 21, 20222
Overview
On December 21, 2022, the City of Concord met with representatives from local organizations to discuss their concerns and comments on the City’s Housing Element Update (HEU). The meeting was held over Zoom. Participants included City Planning Division staff, a facilitator, and communitybased organizations (CBOs) who had submitted letters to the City and the California Department of Housing and Community Development (HCD) regarding the City’s latest draft HEU. The purpose of the meeting was to learn about the community history regarding the origins of the area of Concord classified as a Racially or Ethnically Concentrated Area of Poverty (R/ECAP), and to further understand the CBOs’ comments and concerns on the HEU.

The following individuals were in attendance:
• Mindy Gentry, City of Concord
• Aaron Sage, City of Concord
• Kristi Laughlin, EBASE
• Alex Werth, EBASE
• Debra Ballinger, EBHO and Monument Impact
• Aaron Tiedemann, EBHO
• Vanessa Chena Davila, Monument Impact
• Tony Bravo, Monument Impact
• Jenna Tourje, Facilitator, Kearns & West
The meeting agenda included a welcome and introductions, a review of the meeting purpose, a discussion on the R/ECAP, a listening session to further clarify the CBOs’ comments and concerns on the HEU, and a discussion on next steps and process items.

R/ECAP Discussion
Aaron S. shared information on HCD’s request for more information on how the R/ECAP in Concord developed. After clarifying questions on where the R/ECAP is in Concord and what it means, CBOs shared the following themes:
• The Monument Corridor has been an area of concentrated poverty for decades. The City could identify the history of Monument Impact and other community-based groups to determine how long the area has been a R/ECAP.
• Exclusionary zoning and the limited availability of multi-family housing in surrounding areas have created an area where there is a higher concentration of multi-family housing and poverty.
• Discriminatory lending practices and racially restrictive covenants in single-family neighborhoods have contributed to the existence of the R/ECAP. • Designating sites for market-rate housing in the Monument Corridor will lead to displacement in the R/ECAP. Instead, the City should rezone exclusionary-zoned areas to prevent displacement and create greater opportunities for affordable housing. • Factors such as exploitation by housing developers and landlords, a history of discriminatory lending practices, and single-family or other exclusionary zoning have impoverished R/ECAP residents. Apartment owners in the RECAP have exploited the segregation of working-class people of color and immigrants in the R/ECAP to charge higher rents, despite low incomes, ATTACHMENT 6

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I 2
because many tenants have no other choice but to find an apartment in the district. This coupling of segregation and exploitation actually contributes to the impoverishment of local renters. It's not just that residents naturally experience poverty; segregation in the R/ECAP is part of what produces poverty in the first place.

Debra provided the following information following the conclusion of the meeting:
• A Concord-focused report on mapping segregation (linked here) • An article in The Mercury News on racial covenants in the East Bay (linked here) • Reports on the history of redlining and racial segregation in Contra Costa County (linked here), the Bay Area (linked here), and California (linked here) Concerns and Comments on the Housing Element
Each participant in the meeting had an opportunity to share their concerns and comments on the HEU. Key concerns, comments, and action items are identified below:

Anti-Displacement Measures: The programs identified in the HEU are unlikely to address displacement and some may actually exacerbate displacement. Regarding the Tenant Opportunity to Purchase Act (TOPA) and Community Opportunity to Purchase Act (COPA) program, participants identified that without a dedicated funding source, this program is unlikely to address displacement of low-income renters at scale. In addition, because the TOPA/COPA program is designed to operate and provide benefits over a long-term horizon, and is designated as a homeownership strategy, it is incapable of addressing the rapid displacement of the renters with the lowest incomes and greatest rent burdens, who are at the center of the City’s Assessment of Fair Housing (AFH).

Participants identified that by-right development policies are likely to exacerbate displacement by accelerating the production of market-rate housing in low-resource areas, thereby contributing to gentrification. It was also noted that the program on middle-density housing development opportunities is not related to displacement and should not be identified as an anti-displacement program.

Participants noted there is no program dedicated to anti-displacement in the HEU. Instead, various programs are identified as having a nexus to anti-displacement, but in many cases the program is not a significant action as defined by HCD. Participants identified several ways to address displacement in the HEU. These included creating an overall anti-displacement program with measures empirically proven to prevent displacement caused by economic pressures (the most prevalent form of displacement identified in the City’s AFH and public testimony). Participants also noted that adding rent stabilization and just cause evictions to the HEU’s tenant protections program (Program 20) will clearly address anti-displacement in Concord.

Participants noted that the timeline needs to be updated to respond to HCD’s comments, and that these measures should be adopted by the end of 2023.

Affordable Housing Creation: Participants noted there is no realistic way for Concord to meet its lower-income housing need within this RHNA cycle with the programs identified. There is concern regarding the lack of a program with adequate support and funding for affordable housing, particularly for 100% affordable housing projects. It was noted this type of affordable housing cannot be developed without land donation or monetary support. Therefore, sites identified as lower-income in the HEU sites inventory will actually be developed with less affordable housing or with fewer than 25 percent affordable units. This may violate the State’s no-net-loss law as there would not be enough sites remaining to meet the City’s RHNA obligation.

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I 3
A recent example of the City’s lack of support for affordable housing is the developer selection process for the City-owned Town Center II site. The HEU sites inventory identifies this site for lowerincome housing development, but the City did not include a 100-percent affordability requirement in the Notice of Availability for the site, and has not proactively sought affordable housing developers or offered any financial support for such a development.

Participants identified ways the City can address these issues. One way is for the City to discount or donate surplus land. The City should also support a future regional housing bond measure through the Bay Area Housing Finance Authority (BAHFA) in 2024. Finally, the City should place a local affordable housing tax measure on the ballot early in the HEU planning period to provide a dedicated funding source for the creation of affordable housing.

Participants also noted the Affordable Housing Trust Fund does not include an adequate level of in lieu fees to allow for a significant impact. It was also noted that the City’s current direction on updating its inclusionary housing provisions will not be effective, because it is not proposing the maximum possible in lieu fee and minimum percentage of affordable units.

Site Selection: Participants noted that State law requires, and HCD has requested, further analysis to show how the City’s proposed site selection complies with Affirmatively Furthering Fair Housing (AFFH) requirements. Per State law and HCD’s review letter, the site selection must consider whether sites "improve" or "exacerbate" racial and economic segregation. One concern with the sites analysis is that the lower-income sites identified are not located in higher-resource areas. Sites located in higher-resources would be more competitive for State funds, and are therefore more likely to be built.

Participants identified that the City should redo its sites analysis in a way that “places race at the center,” meaning that it follows State AFFH requirements by considering whether or not the sites inventory improves or exacerbates historical and ongoing patterns of race/class segregation, which must be documented as part of the AFH. And, when future rezoning does occur, engagement needs to take place to center the voices of those being displaced and those negatively impacted by exclusionary zoning, not just the homeowners who have benefited financially from decades of exclusionary zoning.

Naval Weapons Station: While the Concord Naval Weapons Station (CNWS) site is not included in the sites inventory, the HEU states that it will include 25% affordable housing. Participants questioned and raised concerns on how this requirement would be met based on a recent proposal by the CNWS developer to designate Junior Accessory Dwelling Units as affordable units.

Process: Participants identified that the HEU’s community engagement process focused on equity and listened well to the community and to community advocates. However, they expressed concern that the City Council has not been responsive to the overwhelming input received through this process on displacement, racial inequity and lack of affordable housing. An example was shared from the last Council meeting on the HEU, where the Council declined to include tenant protections that were supported by the vast majority of public comments, but included a program on short-term rentals that was supported only by the comments of one white homeowner.

Participants also noted that HCD’s comments cite the City’s obligation to incorporate local knowledge and data where appropriate, and that in State housing element law the political preferences of the Council do not outweigh public comments, demonstrated housing needs, and empirically based programs.

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I 4
Next Steps:

City staff shared next steps in the HEU process. These include sharing this summary with participants to confirm their comments are correctly documented. This summary will also be attached to the staff report for the January 10 City Council meeting on the HEU.

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12/13/2022 1
Housing Element Compliance and Key Funding Programs:

Summary
December 13, 2022
Some state and regionalfunding sources are tied to having a certified Housing Element. This overview memo and attached table summarize housing element requirements and key deadlines for several funding programs. Jurisdictions should review the funding sources they plan on utilizing and ensure they will comply.

DISCLAIMER: ABAG/MTC believes this information to be correct at the time of publication, but jurisdictions should independently confirm these assumptions as deadlines and guidelines continue to evolve. This document is intended to provide general information and does not constitute legal advice. Additional facts, facts specific to a particular situation, or future developments may affect the subjects discussed in this FAQ. Seek the advice of your attorney before acting or relying upon the following information.

Summary: Funding Programs that Require Compliant Housing Elements Unless otherwise noted, each program requires a certified housing element, defined as an “adopted housing element that has been found by the Department to be in substantial compliance.” More details, including links to sources, are included in the appendix below.

Funding Program Agency
When the Housing
Element Needs to
be Certified
Relevant
Deadline in
20231
Affordable Housing & Sustainable Communities (AHSC)
Note language about “presumptive compliance” in the
DRAFT regulations: if jurisdictions are undergoing review at the time of the award, awards will be conditioned
upon final certification at the time of disbursement.

Strategic Growth
Council (SGC)
Time of award
(DRAFT)
August 2023
(planned)
1 If the deadline for having housing element certification is tied to the time of the application, the due date for the application is listed. If the funding is tied to the time of award, the expected date that the money will be awarded is listed. Please double-check deadline dates as the NOFA calendar is not fixed.

ATTACHMENT 7

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Regional Housing Technical Assistance Program
12/13/2022 2
Funding Program Agency
When the Housing
Element Needs to
be Certified
Relevant
Deadline in
20231
California Department of Transportation(Caltrans)
Sustainable Transportation Planning Grant
Note: at the time of this writing, the current DRAFT
application guide for the Caltrans Sustainable
Transportation Planning Grant requires a certified
housing element at the time of application. However,
Caltrans staff have informally indicated that STP Grant Applicants will be able to explain in the application that they are in the process of updating their housing
element. Caltrans would then condition their grant, if
awarded, to require the jurisdiction to have an adopted Housing Element before they can execute a grant
agreement with Caltrans.

Caltrans Time of application
(DRAFT)
March 2023
(planned)
Community Development Block Grant Program
Note that statutory requirement reads: “Submit a draft
or adopted housing element to the Department in
accordance with state law”
California
Department of
Housing &
Community
Development
(HCD)
Time of award January 2023
(planned)
2024 TBD
Infill Infrastructure Grant (IIG)
Note language in the guidelinesthat reads: “If award
decision made within 120 days of housing element due
date, Dept may refer to prior cycle compliance.”
Note language about "presumptive compliance" in the
guidelines: if jurisdictions are undergoing review at the time of the award, awards will be conditioned upon final certification at the time of disbursement.

HCD Time of award December
2022
December
2023 (planned)
Oct-Dec 2023
(Small
Jurisdiction)
Local Housing Trust Fund (LHTF) HCD Time of award September 2023 (planned)
One Bay Area Grant (OBAG) Metropolitan
Transportation
Commission
(MTC)
December 31, 2023 December 31,
2023
Permanent Local Housing Allocation (PLHA)
Note language in the guidelinesthat reads: “If award
decision made within 120 days of housing element due
date, Dept may refer to prior cycle compliance”
HCD Time of award, by
February 2023
Dates depend
on specific
PLHA program

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Regional Housing Technical Assistance Program
12/13/2022 3
Funding Program Agency
When the Housing
Element Needs to
be Certified
Relevant
Deadline in
20231
Transit Oriented Development (TOD) HCD Time of application No funding currently
available
Summary: Funding Programs that Reward Projects in Jurisdictions with Compliant Housing Elements
Several programs use HCD’s Prohousing Designation as a possible evaluation criterion. Prohousing Designation requires “an adopted housing element that has been duly found to be in substantial compliance with the requirements of Housing Element Law” at the time of the Prohousing application OR prior to designation.

Funding Program Agency Evaluation Criteria
Active Transportation
Program
California Transportation
Commission (CTC)
Prohousing Designation is among possible evaluation
criteria at time of funding application (helps with score) HOME Investment HCD Scoring factor at time of funding application – the next planned deadline is July 2023
Local Partnership
Program
CTC Prohousing Designation is among possible evaluation criteria at time of funding application
Solutions for Congested
Corridors Program
CTC Prohousing Designation application is one way to
demonstrate efficient land use and housing at time of
funding application
Transit and Intercity Rail
Capital Program
California State
Transportation Agency
(CalSTA)
Prohousing Designation application is one way to
demonstrate efficient land use and housing at time of
funding application
Funding Programs that Do Not Require Compliant Housing Elements • Multifamily Housing Program (MHP) – no mention of housing element compliance in HCD’s current MHP Guidelines
Document references dates from HCD’s NOFA Schedule updated as of November 2022. Note that HCD updates its calendar regularly, so dates in this document may not remain current.

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Appendix A: Details of Funding Programs that Require Housing Element Compliance

PROGRAM AGENCY REQUIREMENT
/CRITERIA

DEFINITION OF

COMPLIANCE DEADLINE FOR COMPLIANCE
RELEVANT 2023

DEADLINE
(PLANNED)2

LANGUAGE FROM GUIDELINES

OR REGULATIONS

REFERENCE

URL AS OF
12/1/2022

FUNDING

PROGRAM

WEBPAGE
Affordable
Housing &
Sustainable
Communities
(AHSC)
Strategic
Growth Council
(SGC)
Threshold
requirement
Adopted housing
element that has been
found by the
Department to be in
substantial compliance
At time of award
Note language about
“presumptive compliance:” if
jurisdictions are undergoing
review at the time of the
award, awards will be
conditioned upon final
certification at the time of
disbursement.

Aug-23 (17) The Housing Element for the jurisdiction
in which the Project is located must be in
substantial compliance by the date of award
recommendation. Housing Element in
substantial compliance means the local public
entity’s adopted housing element is in
substantial compliance as demonstrated by a
letter from the Department which sets forth
findings that the housing element adopted
within the time frames required by Section
65588 of the Government Code includes that
substance essential to every requirement of
Article 10.6, commencing with Section 65580,
of Chapter 3 of Division I of Title VII of the
Government Code. A jurisdiction’s current
housing element compliance status can be
obtained by referencing the Department’s
website. Projects located on Trust Land, as
defined under Indian country, are exempt
from this requirement.
(A) For the purposes of this section alone,
jurisdictions that are undergoing Department
review of their housing element at the time of
award and jurisdictions which are receiving
Department technical assistance to bring their
housing element into compliance at the time
of award, shall both be deemed to be in a
presumptive state of substantial compliance
by the Department. All awards premised on
presumptive substantial compliance shall
include conditions in their respective standard
agreements requiring that prior to funds
disbursement the subject jurisdiction must
Program
guidelines
Program
webpage

2 HCD programs reference Notice of Funding Availability Calendar

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12/13/2022 5

PROGRAM AGENCY REQUIREMENT
/CRITERIA

DEFINITION OF

COMPLIANCE DEADLINE FOR COMPLIANCE
RELEVANT 2023

DEADLINE
(PLANNED)2

LANGUAGE FROM GUIDELINES

OR REGULATIONS

REFERENCE

URL AS OF
12/1/2022

FUNDING

PROGRAM

WEBPAGE
have received a final housing element
certification letter from the Department.

Caltrans
Sustainable
Transportation
Planning (STP)
Grant
California
Department of
Transportation
(Caltrans)
Threshold
requirement
Adopted housing
element that has been
found by the
Department to be in
substantial compliance
At time of application
At the time of this writing, the
current draft application
guide requires a certified
housing element at the time
of application. However,
Caltrans staff have informally
indicated that STP Grant
Applicants will be able to
explain in the application that
they are in the process of
updating their housing
element. Caltrans would then
condition their grant, if
awarded, to have an adopted
Housing Element before they
can execute a grant
agreement with Caltrans.

Mar-23 City and county primary/sub-grant applicants
are required to submit a housing element
adopted by the local government to the
Department of Housing and Community
Development (HCD) by the application due
date. To be eligible for a funding award, HCD
must find the adopted housing element in
substantial compliance with state housing
element law pursuant to Government Code
Section 65585 by the application due date.

Program
Application
Guide
Program
website
Community
Development
Block Grant
(CDBG) Program
California
Department of
Housing &
Community
Development
(HCD)
Threshold
requirement:
definition of
eligible
applicant
Submit a draft or
adopted housing
element to the
Department in
accordance with state
law
At time of award January 2023
2024 TBD
As per HSC §50829, the Applicant must
submit a draft or adopted housing element to
the Department in accordance with the
requirements listed in Government Code (GC)
§65580, et seq. and GC §65585 (see Appendix
B) prior to an award being granted. Applicants
that fail to comply with the procedural
requirements (i.e., GC §65585) of the Housing
Element Law are ineligible for funding
through the state CDBG program. Eligibility
cannot be restored until the Applicant has
met such procedural requirements.

Program
NOFA memo
Program
website

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12/13/2022 6

PROGRAM AGENCY REQUIREMENT
/CRITERIA

DEFINITION OF

COMPLIANCE DEADLINE FOR COMPLIANCE
RELEVANT 2023

DEADLINE
(PLANNED)2

LANGUAGE FROM GUIDELINES

OR REGULATIONS

REFERENCE

URL AS OF
12/1/2022

FUNDING

PROGRAM

WEBPAGE
Infill
Infrastructure
Grant (IIG)
HCD Threshold
requirement:
definition of
Qualifying Infill
Area
Adopted housing
element that has been
found by the
Department to be in
substantial compliance
At time of award
If award decision made within
120 days of housing element
due date, HCD may refer to
prior cycle compliance
Note language about
“presumptive compliance:” if
jurisdictions are undergoing
review at the time of the
award, awards will be
conditioned upon final
certification at the time of
disbursement.

December 2022
December 2023
Oct-Dec 2023
(Small
Jurisdiction)
(2) Be located in a city, county, or city and
county in which the general plan of the city,
county, or city and county has an adopted
housing element that has been found by the
Department to be in substantial compliance
with the requirements of Article 10.6
(commencing with Section 65580) of Chapter
3 of Division 1 of Title 7 of the GC, pursuant to
GC Section 65585 at time of Award. If the
Award decisions are made within 120 days of
the housing element due date, the
Department may refer to the jurisdiction’s
compliance from the prior cycle.

For the purpose of this section alone,
jurisdictions that are undergoing Department
review of their housing element at the time of
Award, and jurisdictions that are receiving
Department technical assistance to bring their
housing element into compliance at the time
of Award, shall both be deemed to be in a
presumptive state of substantial compliance
by the Department. All Awards premised on
presumptive substantial compliance shall
include conditions in their respective
Standard Agreements requiring that prior to
funds disbursement, the subject jurisdiction
must have received a final housing element
certification letter from the Department.

Program
website
Download
June 16, 2022
IIG-2019
Guidelines
under
"Guidelines"
Program
NOFA memo
Program
website
Program
guidelines
Local Housing
Trust Fund
(LHTF)
HCD Threshold
requirement
Adopted housing
element that has been
found by the
Department to be in
substantial compliance
At time of award Sep-23 City or County Applicants must have a Housing Element that was adopted by the
Applicant’s governing body and subsequently
determined by the Department to be in
compliance with state Housing Element law
by the time awards are announced. If an
applicant is determined to be out of
compliance at the time awards are
announced, it will be ineligible to receive
funding and the next highest scoring eligible
application may be funded in its place.

Program
NOFA memo
Program
website

Page 621 of 670 ends

12/13/2022 7

PROGRAM AGENCY REQUIREMENT
/CRITERIA

DEFINITION OF

COMPLIANCE DEADLINE FOR COMPLIANCE
RELEVANT 2023

DEADLINE
(PLANNED)2

LANGUAGE FROM GUIDELINES

OR REGULATIONS

REFERENCE

URL AS OF
12/1/2022

FUNDING

PROGRAM

WEBPAGE
Multifamily
Housing
Program (MHP)
HCD n/a n/a n/a n/a n/a No language in guidelines Program guidelines
Program
website
One Bay Area
Grant (OBAG)
Metropolitan
Transportation
Commission
(MTC)
Threshold
requirement
Adopted housing
element that has been
found by the
Department to be in
substantial compliance
By December 31, 2023 31-Dec-23 Have a general plan housing element adopted and certified by the California Department of
Housing and Community Development (HCD)
for the 2023-31 Regional Housing Needs
Allocation (RHNA) cycle by December 31,
2023, and maintain certification throughout
the OBAG 3 program period.

Program
details
Program
website
Permanent
Local Housing
Allocation
(PLHA)
HCD Threshold
requirement
Adopted housing
element that has been
found by the
Department to be in
substantial compliance
At time of award, by February
28, 2023
If application submitted
within 120 days of housing
element due date, Dept may
refer to prior cycle
compliance
Jan-March 2023
depending on
specific program
Aug-Dec 2023
(rolling awards
for the formula
program)
Housing Element Compliance: The Applicant
and delegating Local government, if
applicable, must be a locality with an adopted
housing element that has been found by the
Department to be in substantial compliance
with the requirements of Article 10.6
(commencing with section 65580) of Chapter
3 of Division 1 of Title 7 of the Government
Code, pursuant to Government Code section
65585 at the time of award. Awards will be
made through February 2023. If a jurisdiction
submits an application prior to the November
30th application closing deadline but fails to
demonstrate that their housing element is in
compliance by February 28, 2023, will not be
eligible and any 2019 funds will revert to the
Housing Rehabilitation Loan Fund per statute.

If the application is submitted within 120 days
of the housing element due date, the
Department may refer to the jurisdiction’s
compliance from the prior cycle.

NOTE: Please be advised that no funding from
any subsequent year will be disbursed if the
Local government is not in compliance with
the housing element requirement and the
Housing Element Annual Progress Report
(APR) requirement stated in Guidelines
Section 302(a) and (b), or in the event that
the Local government has not submitted its
Program
NOFA memo
Program
website

Page 622 of 670 ends

12/13/2022 8

PROGRAM AGENCY REQUIREMENT
/CRITERIA

DEFINITION OF

COMPLIANCE DEADLINE FOR COMPLIANCE
RELEVANT 2023

DEADLINE
(PLANNED)2

LANGUAGE FROM GUIDELINES

OR REGULATIONS

REFERENCE

URL AS OF
12/1/2022

FUNDING

PROGRAM

WEBPAGE
annual PLHA report, as required by Guidelines
Section 503. Please refer to Appendix D for
more information on verifying housing
element and APR status.

Transit Oriented
Development
(TOD)
HCD Threshold
requirement
Adopted housing
element that has been
found by the
Department to be in
substantial compliance
At time of application n/a All funds
have been
awarded
The Housing Development must be located in
a Locality with an adopted housing element
that has been found by the Department to be
in substantial compliance with the
requirements of California’s Housing Element
Law (Gov. Code, § 65580 et seq.) at time of
application.

Program
guidelines
Program
website

Page 623 of 670 ends

12/13/2022 9
Appendix B: Details of Funding Programs that Incentivize Housing Element Compliance

PROGRAM AGENCY REQUIREMENT
/CRITERIA

DEFINITION OF

COMPLIANCE DEADLINE FOR COMPLIANCE
RELEVANT 2023

DEADLINE
(PLANNED)3

LANGUAGE FROM GUIDELINES

OR REGULATIONS

REFERENCE

URL AS OF
12/1/2022

FUNDING

PROGRAM

WEBPAGE
Active
Transportation
Program
California
Transportation
Commission
(CTC)
Prohousing
designation
among possible
evaluation
criteria (helps
with score)
See Prohousing
Designation, below
See Prohousing Designation,
below
2022 application
deadline was
June 15, 2022
Adoption June
2023
2023 deadlines
TBD?
Under Scoring Criteria (Transformative
Projects): Applicants are encouraged to apply
for the California Department of Housing and
Community Development’s (HCD) Prohousing
Designation Program and to describe how
local policies align with prohousing criteria. If
housing is not an issue for the community, the
applicant should explain why it is not a
concern.

Program
guidelines
Program
website
HOME
Investment
HCD Scoring factor
(50 points out
of minimum
930 needed;
1550 points
possible)
Adopted housing
element that has been
found by the
Department to be in
substantial compliance
At time of application Jul-23 Applicants that meet the definition of a local public entity (cities and counties) are required
to be in substantive compliance with state
Housing Element Law, as defined in state
HOME regulations Section 8201(t), as of the
NOFA application due date.
“Housing element in substantive compliance”
means the city or county’s adopted housing
element is in substantive compliance as
demonstrated by a letter from the
Department which sets forth findings that the
housing element adopted within the time
frames required by Section 65588 of the
Government Code includes that substance
essential to every requirement of Article 10.6,
commencing with Section 65580, of Chapter 3
of Division I of Title VII of the Government
Code.

Program
NOFA memo
Program
regulations
Program
website
Local
Partnership
Program
CTC Prohousing
designation
among possible
evaluation
criteria
See Prohousing
Designation, below
See Prohousing Designation,
below
2022 application
deadline is
November 29,
2022
Among the evaluation criteria: Demonstrating
the local jurisdiction applied to the
Department of Housing and Community
Development’s Prohousing Designation
Program and meets Prohousing criteria that
support efficient land use.

Program
guidelines
Program
website

3 HCD programs reference Notice of Funding Availability Calendar

Page 624 of 670 ends

12/13/2022 10

PROGRAM AGENCY REQUIREMENT
/CRITERIA

DEFINITION OF

COMPLIANCE DEADLINE FOR COMPLIANCE
RELEVANT 2023

DEADLINE
(PLANNED)3

LANGUAGE FROM GUIDELINES

OR REGULATIONS

REFERENCE

URL AS OF
12/1/2022

FUNDING

PROGRAM

WEBPAGE
Program
adoption June
28-29, 2023
2023 deadlines
TBD?
Solutions for
Congested
Corridors
Program
CTC Prohousing
application is
one way to
demonstrate
efficient land
use and
housing
See Prohousing
Designation, below
See Prohousing Designation,
below
2022 application
deadline is
December 2,
2022
Program
adoption June
28-29, 2023
2023 deadlines
TBD?
Under Additional Evaluation Criteria (Efficent
Land Use and Housing): The applicant may
also identify 1) local government jurisdictions
that will be served by the proposed project
and have obtained a Prohousing Designation,
or have applied for a Prohousing Designation,
or 2) enacted or developing local land-use
policies in the project area which support
efficient land-use patterns or incorporate
Prohousing criteria.

Program
guidelines
Program
website
Transit and
Intercity Rail
Capital Program
California State
Transportation
Agency (CalSTA)
Prohousing
designation
among possible
evaluation
criteria
See Prohousing
Designation, below
See Prohousing Designation,
below
2023 application
deadline is
February 10,
2023
Anticipated
award date is
April 24, 2023
Under Primary Evaluation Criteria: Projects
must document the degree to which ridership
growth expected over the life of the project is
supported by housing policies that will
support such growth, including evidence of
compliance with state-required housing plans
(such as an Adopted Housing Element), and
may include a designation of the community
as Prohousing, as determined by the
Department of Housing and Community
Development’s Prohousing Designation
Program.

Program
guidelines
Program
website
*Prohousing
Designation
HCD Threshold
requirement
An adopted housing
element that has been
duly found to be in
substantial compliance
with the requirements
of Housing Element
Law
At time of application OR
prior to designation
Rolling
applications and
approvals
(1) The applicant has adopted a Compliant
Housing Element at the time of application or
prior to designation.
(6) Compliant Housing Element. An adopted
housing element that has been duly found to
be in substantial compliance with the
requirements of Housing Element Law.

Regulation
text
Program
website

Page 625 of 670 ends

?×
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Ygnacio Valley Rd
Detroit Ave
Diamond Blvd
Treat Blvd
Oak Grove Rd
Clayton Rd
Kirker Pass Rd
Concord Ave
Sunvalley Blvd
Cowell Rd
Concord Blvd
Port Chicago
Hwy
Willow Pass Rd
Meadow
Ln
Monument Blvd
I 0 0.75 1.5
Miles
S:\MapRequest\Engineering\CIPPavement\CIPPavementProjects.aprx Map Created: 1/4/2023
By GIS Division of Information Technology
Legend
RCAA Area
City Boundary
Racially Concentrated Areas of Affluence (RCAA)
ACS (2015-2019)
ATTACHMENT 8

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?×
?×
%&p(
%&p(
A¿
Ygnacio Valley Rd
Detroit Ave
Diamond Blvd
Treat Blvd
Oak Grove Rd
Clayton Rd
Kirker Pass Rd
Concord Ave
Sunvalley
Blvd
Cowell Rd
Concord Blvd
Port Chicago
Hwy
Willow Pass Rd
Meadow Ln
Monument Blvd
RL
RL RL
RL
RL
RL
RL
RL
RR15
RR15
RR15
RR15
RR15
RR20
RR20
RR20
RR20
RR20
RR20
RR20
RR20
RR20
RR20
RR20
RR20
RR20
RR40
RR40
RR40
RR40
RS10
RS10
RS10
RS10 RS10
RS10
RS10
RS10
RS10
RS10
RS10
RS10 RS10
RS10
RS10
RS10
RS10
RS12
RS12
RS12 RS12
RS12
RS12
RS12
RS15
RS15
RS6
RS6
RS6
RS6
RS6
RS6 RS6
RS6
RS6
RS6
RS6
RS6 RS6
RS6
RS6
RS6
RS6
RS6
RS6
RS6
RS6
RS6
RS6
RS6
RS6
RS6
RS6
RS7
RS7
RS7
RS7
RS7
RS7
RS7
RS7
RS7
RS7
RS7
RS7
RS7
RS7
RS7
RS7
RS7
RS7
RS7
RS7
RS7
RS7
RS7
RS7 RS7
RS7
RS7
RS7
RS7
RS7
RS7.5
RS7.5 RS7.5
RS7.5
RS7.5
RS7.5
RS7.5
RS7.5
RS7.5
RS7.5
RS7.5
RS7.5
RS7.5
RS7.5
RS7.5
RS7.5
RS8
RS8
RS8 RS8
RS8
RS8
RS8
RS8
RS8
RS8
RS8
RS8
RS8
RS8
RS8
RS8
RS8
RS8
RS8
RS8 RS8
RS8
City of Concord Zoning
I
0 2,500 5,000 1,250
Feet
S:\MapRequest\Engineering\CIPPavement\CIPPavementProjects.aprx Map Created: 1/4/2023
By GIS Division of Information Technology
Zoning Classification
Planned District
Rural Residential (RR15)
Rural Residential (RR20)
Rural Residential (RR40)
Single Family Residential (RS6)
Single Family Residential (RS7)
Single Family Residential (RS7.5)
Single Family Residential (RS8)
Single Family Residential (RS10)
Single Family Residential (RS12)
Single Family Residential (RS15)
Residential, Low Density (RL)
Residential, Medium Density (RM)
Residential, High Density (RH)
North Todos Santos (NTS)
Community Office (CO)
Commercial Mixed Use (CMX)
Neighborhood Commerical (NC)
Regional Commercial (RC)
Service Commerical (SC)
Downtown Pedestrian (DP)
Downtown Mixed Use (DMX)
West Concord Mixed Use (WMX)
Office Business Park (OBP)
Industrial Business Park (IBP)
Industrial Mixed Use (IMX)
Heavy Industrial (HI)
Public/Quasi-Public (PQP)
Open Space (OS)
Parks and Recreation (PR)
Rural Conservation (RLC)
Wetlands/Resource Conservation (WRC)
Study District (S)
Unzoned (U)
Concord Reuse Project – Green Frame (CRP-GF)
Concord City Boundary
BART Track
BART Station
ATTACHMENT 9

Page 633 of 670 ends

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

MEMORANDUM
DATE: December 29, 2022
TO: Planning Directors and Interested Parties
.

FROM: Megan Kirkeby, Deputy Director
Division of Housing Policy Development
SUBJECT: Assembly Bill 2339 – Legislation Effective January 1, 2023:

Housing Element: Emergency Shelters
Chapter 654, Statutes of 2022 (AB 2339), adds additional specificity on how cities and counties plan for emergency shelters and ensure sufficient capacity for low-income housing in their housing elements. Generally, AB 2339 amends State Housing Element Law regarding identification of zones and sites for emergency shelters and transitional and supportive housing as follows:

Amendments to Government Code section 65583, subdivision (a)(4) • Expands the definition of “emergency shelters” to include other interim interventions, including but not limited to, navigation centers, bridge housing, and respite or recuperative care.
• Requires that zoning designations identified to allow emergency shelters as a permitted use without a conditional use or other discretionary permit must allow residential uses. This could include zones that allow mixed uses that permit residential.
• The local government must demonstrate the adequacy of sites identified to accommodate emergency shelters. Specifically, if a vacant site is zoned for a nonresidential use but allows residential development, the site must be located near amenities and services that serve people experiencing homelessness. If the site is nonvacant, the analysis must provide substantial evidence that the existing use is likely to be discontinued during the planning period.

ATTACHMENT 10

Page 634 of 670 ends

Assembly Bill 2339 – Legislation Effective January 1, 2023:

Housing Element: Emergency Shelters

Page 2 ends

• Sites owned by the local government can be included if the analysis demonstrates that the sites will be made available for emergency shelters during the planning period, are suitable for residential use, and are located near amenities that serve people experiencing homelessness.
• Provides a calculation methodology for determining the sufficiency of sites available to accommodate emergency shelters in the identified zoning designation. • Requires analysis of any adopted written objective standards for potential governmental constraints.

Applicable Timing (Government Code section 65583, subdivision (e)) Amendments to Housing Element Law apply per the following timing:
• January 1, 2023 for any housing element or housing element amendment prepared pursuant to subdivision (e) of Section 65588 or Section 65584.02, when the city, county, or city and county fails to submit the first draft to the California Department of Housing and Community Development (Department) before the due date specified in Section 65588 or 65584.02.
• April 1, 2023 for a housing element or housing element amendment prepared pursuant to subdivision (e) of Section 65588 or Section 65584.02, when a city, county, or city and county submits a draft to the Department for review pursuant to Section 65585 more than 90 days after the effective date of the amendment to this section.

An electronic copy can be found at: https://leginfo.legislature.ca.gov/.

You may also obtain copies of published bills from the Legislative Bill Room by calling (916) 445-2323. If you have any questions, or seek additional technical assistance, please contact [email protected].

Page 635 of 670 ends

From: Peg Miller <[email protected]>
Sent: Monday, January 9, 2023 4:55 PM
To: City Clerk <[email protected]>
Subject: supporting housing stability for Concord residents In these very challenging times, please do whatever you need to do to help people stay in their housing, so we do not have even more people who are homeless….do whatever you can to increase the housing available for those unhoused people in Concord. Thanks for your concern for each and every person in Concord.

Sent from Mail for Windows
Benched Correspondence
Agenda Item No. 5.a
January 10, 2023

Page 636 of 670 ends

From: Alex <[email protected]>
Sent: Tuesday, January 10, 2023 2:58 PM
To: City Clerk <[email protected]>
Subject: Comments for city council meeting
Hi,
These comments are in regards to item 5a: "Considering – comments from the California Department of Housing and Community Development (HCD) on the City's draft Housing Element Update (HEU), and providing input to be incorporated into a revised HEU for adoption by the City Council." I'm a long-term resident of Concord, born and raised here and now lucky enough to be able to raise my family here. I'm a homeowner in the Ygnacio Hills neighborhood just south of Treat.

I'm glad to see that the staff report moves up the timeline for rezoning South and East Concord.

Changing the zoning in these areas will greatly further fair housing, and it's only fair that my neighbors and I help make room for more families to live in Concord to help alleviate our serious housing crisis.

I support the staff comments and hope you implement them.

Alex Gude

Page 637 of 670 ends

From: East Bay for Everyone <[email protected]> Sent: Tuesday, January 10, 2023 2:57 PM
To: Sage, Aaron <[email protected]>
Cc: [email protected]
Subject: Comment on Housing Element item
Thanks very much for reading our letter and responding to many of our concerns. This draft sounds like it will be significantly improved from the last draft.

One note we had in our letter but did not see in the staff report (apologies if we missed it, we were reading quickly) was that Concord's setback requirements are very high. It would be great to reduce setbacks to make housing more feasible on a lot of these parcels, and also decrease walking times.

We would love the language in the Housing Element to be stronger around rent stabilization and just cause eviction protections.

We appreciate the commitment to rezoning in the southern and eastern parts of the city and would love to see a concrete commitment to include affordable housing in these areas.

We second the requests from Monument Impact to call for a "ballot measure" which would give flexibility about issuing a bond vs. a new tax in order to finance new housing development.

We would also love to see more information about your plans at North Concord to ensure housing is feasible there by 2031, after a developer pulled out.

Kevin

Page 638 of 670 ends

State HCD Comments on
Housing Element Update
Comentarios Estatales de HCD Sobre la Actualización del Elemento de Vivienda City Council / Concejo Municipal
January 10, 2023
Project Manager:

Aaron Sage, Principal Planner
(925) 671-3465
[email protected] Page 639 of 670
2 Land Acknowledgement / Reconocimiento de tierras
The primary inhabitants of Concord
were the Chupcan tribe of the Bay
Miwok language group. Concord is
also home to members of other
tribal groups, including Ohlone.

Los principales habitantes de la zona
eran la tribu Chupcan del grupo
lingüístico Bay Miwok. Concord
también es hogar de miembrxs de
otras tribus, incluyendo Ohlone.

City of Concord location
Borde Ciudad de Concord
Source: East Bay Regional
Parks District

Page 640 of 670 ends

Overview / Resumen
• HCD Comments / Recommended Revisions
HCD Comentarios / Revisiones recomendadas
• Next Steps / Proximos Pasos
• Consequences for Non-Compliance
Consecuencias del incumplimiento
• Council Input Requested / Se solicitan aportaciones del Consejo 3

Page 641 of 670 ends

HCD Comments
• 63 total comments / 63 comentarios en total
• 51 “minor” comments (technical/clarifications) / 51 comentarios "menores" (técnicos/aclaraciones)
• 12 “major” comments (significant analysis or policy changes) 12 comentarios “principales” (análisis significativo o cambios en las políticas)
• City must “consider and incorporate public comments where appropriate” / La ciudad debe "considerar e incorporar comentarios públicos cuando sea apropiado
4

Page 642 of 670 ends

HCD Comment #4 – RECAP
HCD Comentario # 4 - RECAP
• Applies to area in Monument Corridor designated by HUD as “Racially or Ethnically Concentrated Area of Poverty” (RECAP) Se aplica al área en el Corredor de Monumentos designada por HUD como "Área de pobreza concentrada racial o étnicamente" (RECAP) • Comment: Conduct further analysis of “quality of life conditions” (e.g., housing, infrastructure, parks, etc.) and “the effectiveness or absence of past strategies related to [creating an] equitable quality of life.”
• Comentario: Realizar un análisis más detallado de las "condiciones de calidad de vida" (por ejemplo, vivienda, infraestructura, parques, etc.) y "la efectividad o ausencia de estrategias pasadas relacionadas con [crear una] calidad de vida equitativa".
5

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RECAP / TCAC Opportunity Map
Mapa de RECAP / oportunidades de TCAC
6 N
Recursos bajos
Límite de la ciudad
Recurso moderado
Alto Recurso
Estacion de Armas Navales
Área de pobreza concentrada
Legend / Leyenda
Estacion de Armas Navales
Área de pobreza concentrada
Legend / Leyenda

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Recommended Revisions – RECAP / Low-Resource Areas
Revisiones recomendadas – RECAP / Áreas de bajos recursos • Complete a safety/mobility project of at least
$1 million in a low-resource area (with priority on highly segregated areas) / Completar un proyecto de seguridad / movilidad de al menos $1 millón en un área de bajos recursos (con prioridad en áreas altamente segregadas)
• Commit at least 20% of Cannabis Community Benefit Fund to low-resource areas (with priority on highly segregated areas) / Comprometer al menos el 20% del Fondo de Beneficios Comunitarios de Cannabis a áreas de bajos recursos (con prioridad en áreas altamente segregadas)
7

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Recommended Revisions – RECAP / Low-Resource Areas
Revisiones recomendadas – RECAP / Áreas de bajos recursos • Spend $150K in settlement funds to advance small business development and economic vitality in the Monument Corridor Gastar $ 150K en fondos de liquidación para promover el desarrollo de pequeñas empresas y la vitalidad económica en el Corredor del Monumento
• Seek partners and apply for State Project Homekey funds for a project serving vulnerable populations / Buscar socios y solicitar fondos del Proyecto Estatal Homekey para un proyecto que sirva a poblaciones vulnerables
8

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Recommended Revisions – RECAP / Low-Resource Areas
Revisiones recomendadas – RECAP / Áreas de bajos recursos • Partner with community based organizations to conduct bilingual outreach on fair housing laws (including Section 8 voucher protections), housing programs and social services
Asociarse con organizaciones comunitarias para llevar a cabo actividades bilingües sobre leyes de vivienda justa (incluyendo protecciones de vales de la Sección 8), programas de vivienda y servicios sociales 9

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HCD Comment #7 – AFFH and RHNA Sites
Comentario HCD #7 – Sitios AFFH y RHNA
• Relates to concentration of Regional Housing Needs
Determination (RHNA) sites in low-resource areas of Concord, and how the sites comply with Affirmatively Furthering Fair Housing (AFFH) laws. / Se relaciona con la concentración de sitios de Determinación Regional de Necesidades de Vivienda (RHNA) en áreas de bajos recursos de Concord, y cómo los sitios cumplen con las leyes de Promoción Afirmativa de Vivienda Justa (AFFH). • Comment: Analyze “any isolation of the RHNA [sites] by income group and whether the distribution of sites improves or exacerbates conditions.” / Comentario: Analizar "cualquier aislamiento de los [sitios] RHNA por grupo de ingresos y si la distribución de los sitios mejora o exacerba las condiciones". 10

Page 648 of 670 ends

RHNA Sites
Map
11 N
Mapa de Posibles
Sitios de Vivienda

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Recommended Revisions – AFFH and RHNA Sites
Revisiones recomendadas – Sitios AFFH y RHNA
• Revise AFFH rezoning program as follows: / Revise el programa de rezonificación de AFFH de la siguiente manera:
• Focus on higher-resource, racially and economically segregated areas, considering a variety of data sources, with public input / Centrarse en áreas de mayores recursos, segregadas racial y económicamente, teniendo en cuenta una variedad de fuentes de datos, con aportes públicos
• Rezone 20 acres of land at min. 60 units per acre / Rezonificar 20 acres de tierra a un mínimo de 60 unidades por acre
• Rezone for at least 1,000 units on sites that meet lower-income criteria / Rezonificar para al menos 1,000 unidades en sitios que cumplen con los criterios de bajos ingresos
• Complete by Dec. 2024 / Completar para diciembre de 2024 12

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Racially Concentrated Areas of Affluence
Áreas de riqueza racialmente concentradas
13 N

Page 651 of 670 ends

Recommended Revisions – AFFH and RHNA Sites
Revisiones recomendadas – Sitios AFFH y RHNA
• Allow ADUs (and JADUs) to be combined with SB 9 units (up to 8 units) / Permitir que las ADU (y JADU) se combinen con unidades SB 9 (hasta 8 unidades)
• Allow affordable tiny homes/cottages on religious sites Permitir pequeñas casas / cabañas asequibles en sitios religiosos • Pursue additional funding sources for affordable housing, including placing tax measure on Nov. 2024 ballot
Buscar fuentes de financiamiento adicionales para viviendas asequibles, incluida la colocación de medidas fiscales en la boleta electoral de noviembre de 2024
14

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Alternate Revisions – AFFH and RHNA Sites
Revisiones alternativas: sitios AFFH y RHNA
• Adopt rent control ordinance by Dec. 2023 / Adoptar una ordenanza de control de alquileres para diciembre de 2023 • Adopt just cause eviction ordinance by Dec. 2023 / Adoptar una ordenanza de desalojo por causa justa para diciembre de 2023 • Increase allowable densities on Clayton Road near bus stops from 11-40 units per acre to 50-75 units per acre / Aumentar las densidades permitidas en Clayton Road cerca de las paradas de autobús de 11-40 unidades por acre a 50-75 unidades por acre 15

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HCD Comment #27 – Emergency Shelters
HCD Comentario #27 – Refugios de emergencia
• Comment: Analyze emergency shelter regulations, e.g.
distance from sensitive uses, transit proximity, and facility requirements, as constraints on shelter development
Comentario: Analizar las regulaciones de refugio de emergencia, por ejemplo, la distancia de usos sensibles, la proximidad del tránsito y los requisitos de las instalaciones, como restricciones para el desarrollo de refugios.

Recommended Revisions: / Revisiones recomendadas:
• Simplify emergency shelter regulations / Simplificar las regulaciones de refugio de emergencia
16

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HCD Comments #33-34 – Constraints on Multi-Family Housing Comentarios de HCD #33-34 – Restricciones en la vivienda multifamiliar • Comment: Analyze Design Review and Use Permit requirements for constraints on multi-family housing production
• Comentario: Analizar los requisitos de revisión de diseño y permisos de uso para restricciones en la producción de viviendas multifamiliares Recommended Revisions: / Revisiones recomendadas:
• Conduct all design review at staff level (no Design Review Board), if objective standards are met / Realice toda la revisión del diseño a nivel del personal (sin comité de revisión del diseño), si se cumplen los estándares objetivos
• Allow multi-family housing by right (no Planning Commission) in commercial districts, if objective standards are met / Permitir viviendas multifamiliares por derecho (sin Comisión de Planificación) en distritos comerciales, si se cumplen estándares objetivos
17

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• Comment: Group housing parking requirement and discretionary permits for Large Residential Care Facilities are constraints. • Comentario: El requisito de estacionamiento de vivienda grupal y los permisos discrecionales para grandes instalaciones de atención residencial son restricciones.

Recommended Revisions: / Revisiones recomendadas:
• Reduce parking requirement for group housing uses / Reducir el requisito de estacionamiento para usos de alojamiento grupal • Require only objective criteria and approval findings for Large Residential Care Facilities / Requerir solo criterios objetivos y hallazgos de aprobación para grandes centros de atención residencial 18 HCD Comments #40-41 – Constraints on Housing for Persons with Disabilities
Comentarios del HCD #40-41 – Limitaciones a la vivienda para personas con discapacidad

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Revisions to RHNA Sites Inventory
Revisiones al inventario de sitios de RHNA
• Move Concord Village site (approved at 180 units) from pipeline list to sites inventory / Mover el sitio de Concord Village (aprobado en 180 unidades) de la lista de sitios potenciales al inventario de sitios • Move The Ashbury site (approved at 313 units) from pipeline list to sites inventory / Mover el sitio de Ashbury (aprobado en 313 unidades) de la lista de sitios potencials al inventario de sitios
• Add BART-owned (skate park) site on Monument Blvd. (capacity of approx. 800 units) / Agregue un sitio propiedad de BART (parque de patinaje) en Monument Blvd. (capacidad de aprox. 800 unidades)
19

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Proposed
RHNA Site
Propuesta de
sitio RHNA
20 N

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Next Steps / Próximos Pasos
• Jan. 10 – Council input on HCD comments
10 de enero – Aportes del Consejo sobre los comentarios del HCD • Jan. 17 – Revised HEU released
17 de enero – Publicación de la HEU revisada
• Jan. 19 – Planning Commission recommendation
19 de enero – Recomendación de la Comisión de Planificación • Jan. 31 – Council adopts Final Draft HEU
31 de enero – El Consejo adopta el borrador final de HEU 21

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Next Steps / PróximosPasos
• Feb. 7 (approx.) – Final Draft HEU submitted to HCD
1 de febrero (aprox.) – Borrador final de HEU presentado a HCD • Apr. 2 (60 days after submittal) – HCD certifies HEU or provides further comments
2 de abril (60 días después de la presentación) – HCD certifica HEU o proporciona más comentarios
• May 31 – End of “grace period” for HCD enforcement
31 de mayo – Fin del "período de gracia" para la aplicación de HCD 22

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Consequences for Non-Compliance
Consecuencias del incumplimiento
• Delay of funding for homeless services and capital projects – 1/31/23 / Retraso de la financiación de servicios para personas sin hogar y proyectos de capital – 1/31/23
• Ineligibility for new funds – 12/31/23 / Inelegibilidad para nuevos fondos – 12/31/23
• Galindo Street Multimodal Corridor Project
• Willow Pass Road Bikeway Connection Project
23

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Consequences for Non-Compliance
Consecuencias del incumplimiento
• “Builder’s Remedy” project applications – 1/31/23 / Solicitudes de proyecto "Builder's Remedy" – 1/31/23
• HCD enforcement (fines, penalties, loss of land use authority) – 5/31/23 / Aplicación de HCD (multas, sanciones, pérdida de autoridad de uso de la tierra) – 5/31/23
24

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Council Input Requested / Solicitud de aportación del Consejo 25 TOPIC / TEMA PROGRAMS / PROGRAMAs

RECAP /
Low-Resource
Areas / Áreas de
bajos recursos
• Safety/mobility project (min. $1 million) / Proyecto de seguridad/movilidad (mín. $1 millón)
• 20% of Cannabis Community Benefit Fund / 20%
del Fondo de Beneficios Comunitarios de Cannabis
• $150,000 for Monument Corridor businesses /
$150,000 para negocios de Monument Corridor
• Project Homekey funds / Proyecto Homekey fondos
• Outreach on fair housing laws, housing programs
and social services / Divulgación sobre leyes de
vivienda justa, programas de vivienda y servicios
sociales

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Council Input Requested / Solicitud de aportación del Consejo 26 TOPIC / TEMA PROGRAMS / PROGRAMAs
AFFH and RHNA
Sites (Rezoning)
• Focus on higher-resource, racially and
economically segregated areas / Centrarse en las
zonas de mayores recursos, segregadas racial y
económicamente
• Rezone 20 acres at min. 60 units per acre /
Rezonificar 20 acres a un mínimo de 60 unidades por
acre
• Rezone for min. 1,000 units / Rezonificación para un
mínimo de 1.000 unidades
• Complete by Dec. 2024 / Completado para Dec. 24

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Council Input Requested / Solicitud de aportación del Consejo 27 TOPIC / TEMA PROGRAMS / PROGRAMAS
AFFH and
RHNA Sites
• SB 9 capacity increase / Aumento de capacidad SB 9
• Tiny homes on religious sites / Casas pequeñas en sitios religiosos
• Tax measure, Nov. 2024 / Medida impositiva, noviembre de 2024
Alternate Programs: / Programas alternativos:
• Rent control by Dec. 2023 / Control de alquileres para diciembre de 2023
• Just cause by Dec. 2023 / Causa justa para diciembre de 2023
• Increase densities on Clayton Road / Aumentar las
densidades en Clayton Road

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Council Input Requested / Solicitud de aportación del Consejo 28 TOPIC / TEMA PROGRAMS / PROGRAMA
Emergency
Shelters
Refugios de
emergencia
• Simplify regulations / Simplifique las regulaciones
Multi-Family
Constraints
Limitaciones de la
construcción
multifamiliar
• Staff-level Design Review / Revisión del diseño a
nivel de personal
• Allow by right in commercial districts / Permitir por derecho en distritos comerciales

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Council Input Requested / Solicitud de aportación del Consejo 29 TOPIC / TEMA PROGRAMS / PROGRAMAS
Persons with
Disabilities
Constraints /
Limitaciones de
Personas con
Discapacidad
• Reduce group housing parking standards / Reducir
los estándares de estacionamiento de viviendas
grupales
• Objective process for Large Residential Care/
Facilities / Proceso objetivo para grandes instalaciones de cuidados residenciales
Sites Inventory /
Inventario del sitio
• Add skate park site to inventory / Agregar el sitio del parque de patinaje al inventario

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Questions?
Preguntas?
30

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Income Level
Nivel de ingresos
5 th Cycle
RHNA
5º ciclo RHNA
6 th Cycle
RHNA
6º ciclo RHNA
Increase
Aumento
Target Housing Units
Objetivo de Unidades de vivienda
Extremely/Very Low |
Extremadamente-Muy Bajo 798
1,292494 (61.9%)
Low | Bajo 444
744300 (67.6%)
Moderate | Moderado 559
847288 (51.5)%
Above Moderate | Encima
de Moderado 1,677
2,190513 (31.6)%
Total
3,4785,073 1,595
(45.9)%
Concord RHNA

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32 City
5th Cycle
RHNA
6th Cycle
RHNA Increase
Orinda 227 1359 499%
Unincorporated 1367 7645 459%
Lafayette 400 2114 429%
Clayton 141 570 304%
Pleasant Hill 448 1803 302%
Danville 557 2241 302%
San Ramon 1417 5111 261%
Martinez 469 1345 187%
Walnut Creek 2235 5805 160%
Antioch 1448 3016 108%
Brentwood 760 1522 100%
Concord 3478 5073 46%
Pittsburgh 2025 2017 0%
County RHNA Increases / Aumentos del RHNA del Condado

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Staff Report
Date: January 10, 2023
To: City Council
From: Valerie J. Barone, City Manager
Prepared by: Justin Ezell, Assistant City Manager
[email protected]
(925) 671-3155
Subject: Considering a report from staff regarding tobacco regulations and enforcement in Concord, and providing direction to staff on whether to draft policy that further regulates tobacco in Concord.

Report in Brief
On May 24, 2022, Council referred the topic of “Tobacco Regulations” to the Policy Development and Internal Operations (PD&IO) Committee (Aliano/Hoffmeister) to consider further regulating tobacco in the City of Concord, and in particular flavored tobacco. The PD&IO Committee discussed the item on October 18, 2022. The Committee determined that Council must reprioritize the organization’s existing work program in order for tobacco regulations to be further developed ahead of the next Council priority setting workshop (anticipated to occur in March 2023). Staff was directed by the Committee to return the topic of tobacco regulations to the full City Council for discussion, and to include the following in the report: 1) an overview of the City’s special projects work program; 2) information on neighboring cities efforts to regulate tobacco; and 3) a discussion with the Chief of Police on the Police Department’s ability to enforce tobacco regulations.

Recommended Action
Hear the report and provide direction to staff on whether to draft policy that further regulates tobacco in Concord.

Background
On October 18, 2022 staff provided the PD&IO Committee (Aliano/Hoffmeister) with a report and presentation on tobacco regulation. The report included a discussion on the health effects of tobacco consumption, information on flavored tobacco, and the status

5.b

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City Council Agenda Report
Agenda Item No. 5.b
January 10, 2023
of existing tobacco regulations within the City. Committee members highlighted that further regulating tobacco is not part of the Council-adopted Tier 1 and Tier 2 priorities, and such an effort would create unplanned workload for the organization. The Committee members concluded that a review of existing priorities is a conversation to be had with the full City Council, and direction was given to staff to agendize the topic at a future Council meeting.

The PD&IO Committee directed staff to include the following information in the report to Council: 1) an overview of the organization’s special projects work program; 2) information on neighboring cities efforts to regulate tobacco; and 3) a discussion with the Chief of Police on the Police Department’s ability to enforce tobacco regulations.

With regard to the organization’s work program, the “To Do List of Projects – April 2022 through June 2023” that was provided to Council during its April 2, 2022 priority setting workshop is included as Attachment 1, and the resulting Tier 1 and Tier 2 priorities approved by Council during the workshop are included as Attachment 2. Council will revisit the City’s work program and priorities at its goal setting workshop in March of 2023, at that time Council will have an updated list of special projects. Also attached is an “adopted policies” matrix developed by LGBTQ Minus Tobacco that provides a detailed overview of existing tobacco regulations in Contra Costa cities (Attachment 4).

Finally, Chief of Police Mark Bustillos will attend the Council meeting prepared to discuss his department’s ability to enforce tobacco regulations.

Analysis
Following the October 18 PD&IO meeting, California voters passed Proposition 31 with 63% of the vote, upholding a 2020 law (SB 793) that prohibits the sale of certain flavored tobacco products, including flavor enhancers. Proposition 31 was the result of SB 793 being challenged by referendum and never taking effect. After the law was upheld in the November 8, 2022 election, R.J. Reynolds, and other tobacco industry partners, filed a lawsuit with the goal of overturning SB 793. While the lawsuit will move forward, their request for an injunction delaying enactment of the law was denied by the U.S. Supreme Court. SB 793 is now in effect, as of December 21, 2022.

SB 793 prohibits the sale of most but not all flavored tobacco products on non-tribal lands in California. Exceptions to the flavored sales restrictions are hookah/shisha tobacco, “premium” cigars sold for $12 or more and loose leaf pipe tobacco. SB 793 does not allocate additional resources to enforcement of the sales restriction, nor does it limit the city’s ability to enact more rigorous regulations on tobacco product sales. SB 793 addresses flavored tobacco products only, not cannabis products which are subject to other State regulations. The following tobacco products are prohibited under SB 793:
 Flavored e-cigarettes and vapes
 Flavored e-juice, pods, and cartridges
 Menthol cigarettes

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City Council Agenda Report
Agenda Item No. 5.b
January 10, 2023
 Flavored little cigars and cigarillos
 Flavored smokeless tobacco products
 Flavored blunt wraps
 Flavored loose-leaf roll-your-own tobacco
 Flavored tobacco rolling papers
 Tobacco product flavor enhancers
The staff report from the October 18 PD&IO Committee provides an overview and status of existing tobacco regulations within the City of Concord (included as Attachment 3). Attachment 4 is a table prepared by LGBTQ Minus Tobacco which provides a detailed overview of tobacco regulations within other communities in Contra Costa County. The following is a high-level summary of these regulations with a comparison to Concord’s existing tobacco policies:
 Requirement to obtain and display an annually-renewed tobacco retail license o The City of Concord began a Tobacco Retailers License program in 2006.

Licenses are issued to businesses concurrent with their business license for a fee of $238 (adjusted annually in the Resolution Establishing Various Municipal Fees and Charges). Concord has 91 licensed tobacco retailers.  Suspension of tobacco retail license and/or fines to retailers who sell prohibited products or who make sales to persons under 21
o Chapter 5.100 (Tobacco Retailers License Program) of the Concord Municipal Code specifies that licenses may be suspended or revoked for violations of the ordinance and/or any state or federal tobacco-related laws.
 Routine enforcement to ensure compliance with product restrictions and laws against sales to persons under 21
o Concord does not perform routine compliance checks to ensure conformance with laws; enforcement is conducted on a complaint basis.  Prohibition on the sale of some or all flavored tobacco o Concord does not prohibit the sale of flavored tobacco. Enforcement of the new state law banning flavored tobacco will occur on a complaint basis.  Prohibition on the sale of electronic cigarettes
o Concord does not prohibit the sale of electronic cigarettes.  Minimum sale price for combustible tobacco products
o Concord does not impose minimum sale prices on tobacco products.

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City Council Agenda Report
Agenda Item No. 5.b
January 10, 2023
 Prohibition on redemption of coupons for combustible tobacco products o Concord does not prohibit the redemption of coupons for combustible tobacco products.
 Minimum pack size for combustible tobacco products
o Concord does not impose minimum pack sizes for combustible tobacco products.
 Prohibition on issuance of tobacco retail licenses to state-licensed pharmacies o Concord does not prohibit pharmacies from selling tobacco (these provisions would need to be incorporated in the Development Code).  Limitation on number of tobacco retail licenses issued o Concord does not limit the number of tobacco retail licenses issued (these provisions may need to be incorporated in the Development Code).  Prohibition on issuance of new licenses within buffer zones around sensitive areas
o Section 5.100.050 (Limits on Tobacco Retailer Licenses) of the Concord Municipal Code specifies that licenses may only be issued to retailers at a fixed location. Concord has no other prohibitions related to buffers zones around sensitive areas (these provisions would need to be incorporated in the Development Code).

In summary, Concord regulates the sale of tobacco products, but not to the extent of some neighboring cities. As of December 21, 2022 SB 793 prohibits the sale of certain flavored tobacco products, including flavor enhancers. Further regulating tobacco within the City of Concord may require changes to the organization’s work plan, depending on the breadth and depth of any proposed new regulations, and whether changes are needed to Concord’s Development Code as a result.

Financial Impact
Development of new tobacco regulations may require use of a consulting firm, depending on the timing and extent of the proposed new regulations and whether they require changes to the City of Concord’s Development Code. Similar consulting work involving changes to the Affordable Housing Ordinance was completed at a cost of $20,000. Actual costs can’t be known until the scope and timing of work is known.

Public Contact
The City Council Agenda was posted.

Attachments

1. To Do List of Projects – April 2022 through June 2023

2. Council’s Approved Tier 1 and Tier 2 Priorities

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City Council Agenda Report
Agenda Item No. 5.b
January 10, 2023

3. October 18, 2022 PD&IO Committee staff report

4. LGBTQ Minus Tobacco table of tobacco regulations

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“To Do” List of Projects—April 2022 through June 2023
(4/2/2022)
Long Term Fiscal Stability & Economic Development
 Consideration and Implementation of an Unfunded Personnel Liability Reduction Plan
 CNWS—Term Sheet/Specific Plan/Disposition & Development Agreement/Environmental Impact Report
 Coast Guard Site—Expected Large Development Proposal
 Cannabis Permitting/Licensing—Implement Development Agreements/Process Remaining Applications/Monitor
 Successor Agency Parcels Request for Proposals
 Property Based Improvement Districts Support—Downtown & Monument  Develop American Recovery Plan Act Investment Act (ARPA) Plan and Implement It  Consider the Responses to the Broadband Request for Information and Develop Next Steps to Enhance Broadband Capacity
 Economic Development Strategy
o Complete research and focus groups
o Explore if changes needed to life-science/R&D attraction plan o Explore incorporating new use classification for “tesla-style” automobile showrooms into the zoning code
Public Safety
 Focus on Building Staffing Levels in the Police Department—Civilian (including Dispatch) and Sworn
 Coordinate/Partner with the County on the Rollout of New A3 Program as a Mental Health Crisis Response Program
 Increase Lighting and Install Camera Surveillance in the Civic Center and Adjacent Parking Lots
 Complete a Citywide Computer Infrastructure Refresh to Improve Security, Network Speeds and Systems Reliability
 Deploy License Plate Recognition (LPR) Cameras Throughout the City and Upgrade Software to Assist in Identifying Vehicles of Interest More Efficiently  Neighborhood Traffic Calming Process & Tools Review and Community Education Effort
 Neighborhood Cut Through Traffic Analysis Review
Attachment 1

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Select List or Organization’s To-Do
April 2, 2022

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Infrastructure (note: this is not inclusive of our entire CIP)  Continued Implementation of the 5-Year Measure V Roadway Investment Plan  Development of a Local Roadway Safety Plan
 Investment of Recent Grants for Traffic Signal Upgrades (HSIP), Inclusive of 98 Signals  Willow Pass Road Fiber and Adaptive Signal Control Project Implementation  Traffic Impact Mitigation Fee (OSIP) Update
 Sanitary Sewer Rate Update
 Pursuit of Various Grant Applications to Aid with Infrastructure Improvements and Maintenance
Quality of Life
 Flavored Tobacco Ban (a Tier 2 priority for FY 2021-22)  Housing Element Update
 New Trash/Recycling Regulations Implementation
 Complete the Anti-Harassment Tenant Protection Ordinance  Complete Corridors Plan for Pine Hollow
 Complete the Hearing/Public Review Process for Council Consideration of Draft Sidewalk Vending Regulations
Customer Service
 Design and Build a Parking Guidance System for City-owned Garages  Complete the Accessory Dwelling Unit Construction Ready Plans Project  Streamline the Housing Development Review Process

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Select List or Organization’s To-Do
April 2, 2022

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Organizational Health & Employee Success
 9/80 Flexible Work Schedule
 Nepotism Policy Pilot Program to Create Flexibility
 Recruitment Incentives for Hard to Fill Positions (Hiring Bonuses and Referral Payments)  Hire Recently Retired Employees for 6-months for Hard to Fill Positions  Replacement of the HR/Finance System (Lawson)
 Enhanced Communication to Prospective Candidates on the Benefits Offered in Concord  Modernize Job Specifications, Remove Barriers
 Expand Training Opportunities for Employees
 Labor Negotiations Beginning in January 2023 (Contracts Expire in June 2023)

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April 2, 2022
Council Priority Setting Workshop
Guide the organization until the end of FY 2022-23
Tier 1 Priorities
Staffing: Filling the many open positions across all departments so that we can continue to provide essential services that the community expects and deserves. We have empowered Valerie and her team to be creative in how they use existing policies to fast-track the filling of vacancies, and to return to Council with any necessary Council authorities to support this effort.

Homelessness: Council has determined the need to have an adopted strategic plan to address our homelessness crisis; a work program for this effort will be proposed to Council in the fall of this year. The work will be funded, in part, by the $2.4 million of one-time funds that Council set aside at our March 8 meeting.

Development of the former Concord Naval Weapons Station: Taking the next steps on this multi-year project includes working with the Concord First Partners team on the next set of approvals: The first step of which is agreement and approval of a term sheet. Followed by development of a specific plan, a disposition and development agreement, and an Environmental Impact Report. These efforts will all incorporate public involvement and require the Local Reuse Authority/City Council to make decisions on the documents at public meetings.

Objective Design Standards: In response to recent State legislation intended to stimulate housing production, the City cannot apply subjective design standards when considering development projects. To retain local control over such projects, Council will create objective design standards, through a public process, to support Concord’s tradition of high-quality design.

Tier 2 Priority
Council also identified a “Tier 2” priority, which is something that is identified as important to Council but not at the same level of importance as the Tier 1 priorities.

LPR Camera Deployment: Purchase and deployment of License Plate Recognition (LPR) cameras throughout the city to assist in identifying vehicles of interest in support of solving crimes more efficiently. It is a “service multiplier” that will enable the use of technology to assist our police department with public safety.

Attachment 2

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Staff Report
Date: October 18, 2022
To: Council Committee on Policy Development and Internal Operations From: Valerie J. Barone, City Manager
Reviewed by: Kevin Marstall, Director of Community Development Mindy Gentry, Planning Manager
Prepared by: Frank Abejo, Principal Planner
[email protected]
(925) 671-3128
Subject: Discussion of potential Municipal Code amendments regarding the sale and use of tobacco products and
enforcement of such regulations.

Report in Brief
On May 24, 2022, Council referred the topic of “Tobacco Regulations” to the Policy Development and Internal Operations (PD&IO) Committee to consider further regulating tobacco in the City of Concord, and in particular flavored tobacco. The Committee’s recommendations, should they have any, would be forwarded to the full Council for review and direction to staff.

Recommended Action
Consider the information provided by the community, advocates, businesses, and staff related to further regulating tobacco in the City of Concord. Should the Committee have recommendations for the full Council to further regulate tobacco in Concord, staff asks that the Committee be clear on what specific aspects of additional regulation they want Council to consider pursuing.

Background
Health Effects
The harmful health impacts of tobacco consumption on both smokers and non-smokers are well documented. Smokers are at higher risk for cancer, heart disease, stroke, lung diseases, diabetes, and chronic obstructive pulmonary disease (COPD), which includes emphysema and chronic bronchitis. Smoking also increases risk for tuberculosis,

Page 1 of 45 ends

Attachment 3

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Council Committee Report
Agenda Item No. 2.a
October 18, 2022
certain eye diseases, and problems of the immune system, including rheumatoid arthritis.1 Adults exposed to secondhand smoke are at increased risk for stroke, lung cancer, and coronary heart disease; and secondhand smoke increases the risk of sudden infant death syndrome, acute respiratory infections, middle ear disease, asthma, respiratory symptoms, and slowed lung growth for infants and children.2 Consequently, tobacco regulations have been adopted at all levels of government to address the public health impacts of tobacco with no state or federal law precluding location jurisdictions from establishing more restrictive laws regarding the sale and use of tobacco. For example, at the state level, California raised the minimum age to purchase tobacco from 18 years old to 21 years old in 2016. In 2019, the federal government adopted a similar law with no exceptions, including military personnel.

California state laws also require licensing of tobacco retailers and restricts smoking in public spaces and places of employment.

Flavored Tobacco Products
The use of flavored tobacco products, especially by minors, has resulted in efforts to specifically regulate flavored tobacco. Electronic smoking devices are often marketed as being less hazardous and addictive than traditional cigarettes; however, studies have been inconclusive on the effectiveness of electronic smoking devices for smoking cessation, and they have not been approved by the Federal Drug Administration (FDA) as an aid to quit smoking. Moreover, studies show that compared to regular cigarettes, electronic smoking devices can deliver up to eight more times the amount of nicotine, the chemical compound that makes tobacco addictive. Further, the U.S. Surgeon General reports that electronic smoking device aerosol could expose users and bystanders to harmful substances such as nicotine, heavy metals, volatile organic compounds, and ultrafine particles that can be inhaled deeply into the lungs.3 At the federal level, the 2009 Family Smoking Prevention and Tobacco Control Act (TCA) banned the sale of flavored cigarettes, but exempted menthol4 cigarettes and does not address flavored tobacco products like electronic smoking devices5, little cigars, hookah and smokeless tobacco. Building on the Family Smoking Prevention and 1 Centers for Disease Control and Prevention.
https://www.cdc.gov/tobacco/basic_information/health_effects/index.htm (accessed July 15, 2022) 2 Ibid.
3 U.S. Surgeon General, E-Cigarette Use Among Youth and Young Adults, https://ecigarettes.surgeongeneral.gov/documents/2016_sgr_full_report_non-508.pdf. Accessed August 1, 2022, 4 Menthol is a chemical compound found naturally in peppermint and other similar plants. Menthol can change the way the brain registers the sensations of taste and pain. In cigarettes, menthol creates a cooling sensation in the throat and airways, making the smoke feel less harsh and easier to inhale. Menthol is also used in other commercial tobacco products, such as e-cigarettes, cigars, hookah tobacco, smokeless tobacco, nicotine pouches, and heated tobacco products. https://www.cdc.gov/tobacco/basic_information/menthol/index.html (accessed July 21, 2022)
5 The FDA also refers to electronic smoking devices as electronic nicotine delivery systems (ENDS).

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Council Committee Report
Agenda Item No. 2.a
October 18, 2022
Tobacco Control Act, the FDA announced in April 2022 proposed product standards to prohibit menthol as a characterizing flavor in cigarettes and prohibit all characterizing flavors (other than tobacco) in cigars. These proposed product standards underwent public comment until August 2, 2022. Following the closure of the public comment period, the FDA will consider all public comments and then decide to either end the rulemaking process, issue a new proposed rule, or to issue a final rule. At the time of publication of this staff report, the FDA was still reviewing all public comments.

More recently in August 2020, Governor Newsom signed Senate Bill 793 into law banning the sale of a “flavored tobacco product or a tobacco product flavor enhancer” in California. In January 2021, SB 793 was suspended by referendum and the matter will be decided by voters this November. Additionally, local government agencies have adopted flavored tobacco regulations concurrent with SB 793, or in response to its suspension. A survey of Contra Costa jurisdictions that have adopted restrictions on flavored tobacco is included as Attachment 1.

Discussion
Concord Municipal Code (CMC) Section 5.100.010 defines tobacco product as “(1) any substance containing tobacco leaf, including but not limited to cigarettes, cigars, pipe tobacco, hookah tobacco, snuff, chewing tobacco, dipping tobacco, bidis, or any other preparation of tobacco; and (2) any product or formulation of matter containing biologically active amounts of nicotine that is manufactured, sold, offered for sale, or otherwise distributed with the expectation that the product or matter will be introduced into the human body, but does not include any product specifically approved by the United States Food and Drug Administration for use in treating nicotine or tobacco product dependence.” Additionally, CMC Section 8.35.020 defines a smoking product to be “(1) Any product that is intended or used for human consumption, whether smoked, heated, chewed, absorbed, dissolved, inhaled, snorted, sniffed, or ingested by any other means, including, but not limited to, cigarettes, cigars, little cigars, chewing tobacco, pipe tobacco, snuff, cannabis, or other synthetic or organic materials; (2) Any electronic smoking device; and (3) Any component, part, or accessory of a smoking product, whether or not sold separately.”
This discussion is focused on the City’s potential further regulation of the sale and smoking of non-flavored tobacco and flavored tobacco (electronic smoking devices and hookah) products and does not address smokeless tobacco products (e.g., dip and chew) or cannabis. The applicable Concord regulations are explained and additional approaches to regulating tobacco products or their use are provided for the Committee’s consideration.

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Council Committee Report
Agenda Item No. 2.a
October 18, 2022
Non-flavored Tobacco
The sale of traditional/non-flavored tobacco products such as cigarettes, cigars, and smoking paraphernalia are not treated as a land use but as an ancillary activity to a principally permitted land use. Tobacco product sales as an ancillary activity is typically associated with these land use classifications: Convenience Store, Grocery Store, Liquor Store, General Retail (specifically pharmacies), and Restricted Retail (specifically smoke shops). The City has the following regulations on tobacco sales and use:
 CMC Chapter 5.100 – Tobacco Retailers Program. Requires tobacco retailers to obtain and maintain a valid tobacco retailer’s license from the City. Other than the tobacco licensing process, the Tobacco Retailers Program does not contain standards or regulations specific to Concord and instead defers to the applicable federal and state laws. This Ordinance was adopted in 2006. Due to a lack of resources, the City has never implemented this program.
 CMC Chapter 8.35 – Smoking in Public Places and Places of Employment. Prohibits smoking tobacco products “in all buildings, including within 25 feet of any exit, entrance, operable window of a building, vehicles, and other enclosed areas occupied by city employees, owned or leased by the city, or otherwise operated by the city” and in “any unenclosed area owned or leased by the city, including parks, parking lots, corporation yards, and the ground of any building owned or leased by the City” except for smoking areas designated by the City Manager. Smoking within specified areas of downtown Concord is also prohibited. This Ordinance was updated in 2019 to address smoking around multiunit residences, and the City implemented a strong education outreach program. Enforcement is primarily voluntary, however, it can be enforced through civil action.
 CDC Section 18.200.220, Convenience Stores. Regulates the sale of tobacco products in convenience stores by, among other things, limiting the storage and display of tobacco products to a small percentage of the store area, prohibiting sales of individual cigarettes or cigars, and prohibiting sales of tobacco paraphernalia (e.g., cigarette papers or wrappers, pipes, holders of smoking materials of all types, etc.). This Ordinance was updated in October 2021. Convenience stores that sell tobacco but not alcohol are allowed in certain zoning districts, where enforcement of this ordinance is voluntary. Convenience stores that sell alcohol require a use permit where allowed by zoning; if the store also sells tobacco, the ordinance can be enforced through the use permit.

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Council Committee Report
Agenda Item No. 2.a
October 18, 2022
Flavored Tobacco/Electronic Smoking Devices
Electronic smoking devices deliver nicotine by heating a liquid containing nicotine, other chemicals, and flavoring into an aerosol that is inhaled. Electronic smoking devices are also called “E-cigarettes” “e-cigs,” “e-hookahs,” “vapes,” “vape pens,” and “electronic nicotine delivery systems (ENDS).” Flavored tobacco and related paraphernalia are included in the definition of a tobacco product under CMC Section 5.100.010 and the definition of a smoking product under CMC Section 8.35.020; therefore, they are regulated in the same manner as non-flavored tobacco and are subject to the above regulations.

Flavored Tobacco/Hookah
Hookahs are water pipes that are used to smoke specially made flavored tobacco. Hookah pipes use coal to vaporize tobacco. The tobacco smoke passes through a pipe to a water bowl that cools down the smoke before it is inhaled through a tube. Hookah tobacco is included in the Municipal Code’s definition of “tobacco product” or “smoking product” and therefore its purchase would be subject to the same regulations as regular tobacco.

In 2010, the City issued an Administrative Permit for Wicked Mirage Hookah Lounge at 3425 Chestnut Avenue. At that time, the 2030 General Plan was in effect but a new zoning ordinance consistent with the General Plan had not been adopted. For uses that were not defined by the zoning ordinance in effect at that time, the City rendered administrative permit determinations based on the proposed use’s consistency with General Plan policies. With the adoption of the 2012 Development Code, hookah establishments were classified as a “Personal services, restricted” use. Wicked Mirage operates as a legal nonconforming use because the site’s zoning does not allow “Personal services, restricted” uses.

In 2014, the Planning Commission approved a Use Permit for Hookah Palace (now Sheesh Hookah Lounge) at 1120 Contra Costa Boulevard. And in 2015, the Zoning Administrator denied a Minor Use Permit for Mist Hookah Lounge at 4115 Concord Boulevard (Dana Plaza), due to the location’s proximity to Concord High School and incompatibility with surrounding residential neighborhood.

New or Alternative Approaches on Tobacco Regulations
Various community groups and residents concerned with the impacts to public health from tobacco product use have suggested that the Committee may want to consider the following in their direction to staff on this topic. 1) Prohibiting flavored tobacco, and either including or not including menthol flavored tobacco in the prohibition;
2) Prohibiting the sale of all tobacco electronic smoking devices and their cartridges (i.e. vape products);

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Council Committee Report
Agenda Item No. 2.a
October 18, 2022
3) Prohibiting hookah establishments;
4) Establishing buffers between new tobacco retailers and sensitive uses; 5) Establishing criteria for the over-concentration of tobacco retailers (i.e. tobacco retailers have to be more than 500 feet from one another); 6) Memorializing the prohibition of the sale of single cigarettes or cigars (Note:

State law currently prohibits this, but it could be reiterated in a retailer license program);
7) Establishing a minimum price threshold for flavored tobacco or all tobacco products;
8) Prohibiting redemption of tobacco product coupons and other discounts; 9) Prohibiting tobacco sales in stores containing pharmacies; 10) Limiting the number of tobacco retailer licenses issued; and 11) Establishing monetary penalties and violations for failing to comply with the City’s regulations.

Public Outreach for this Meeting:

This meeting was advertised in the East Bay Times. Meeting notices were also sent electronically and/or by mail to an interested parties list that includes the Contra Costa Tobacco Prevention Coalition, LGBTQ Minus Tobacco, tobacco retailers in Concord, California Fuels & Convenience Alliance, the American Petroleum and Convenience Store Association, the Concord Chamber of Commerce, the Latino Chamber of Commerce, and Todos Santos Business Association. Public comments received at the time of publication of this report are included as Attachment 5.

Next Steps
Should the Committee desire to pursue additional tobacco regulations, it will be important to articulate what type of regulations. With that information, staff will take the Committee’s recommendations, with a proposed work plan to the Concord City Council for consideration and direction to staff.

Attachments

1. Survey of Bay Area Jurisdictions Restricting Flavored Tobacco

2. CMC Chapter 5.100 – Tobacco Retailers Program

3. CMC Chapter 8.35 – Smoking in Public Places and Places

4. CDC Section 18.200.220 – Convenience Stores

5. Public Comments

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Survey of Flavored Tobacco Regulations in Contra Costa County Jurisdictions that restrict sale of Flavored Tobacco, Electronic Cigarette Devices, and Menthol 1) Antioch
2) Contra Costa County1
3) Danville
4) El Cerrito
5) Lafayette
6) Moraga2
7) Orinda
8) Pinole
9) Pleasant Hill3
10) Richmond
11) San Pablo
12) Walnut Creek
Jurisdictions with no restrictions
1) Brentwood
2) Clayton
3) Hercules
4) Martinez
5) Oakley
6) Pittsburg
7) San Ramon
1 Regulations apply to unincorporated areas only.
2 Regulations effective January 1, 2023
3 Regulations effective January 1, 2023
Attachment 1

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Concord Municipal Code
Chapter 5.100 TOBACCO RETAILERS LICENSE

PROGRAM

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The Concord Municipal Code is current through Ordinance 21-6, passed November 9, 2021.

Chapter 5.100

TOBACCO RETAILERS LICENSE PROGRAM
Sections:

5.100.010 Definitions.

5.100.020 Self-service displays prohibited.

5.100.030 Vendor assistance.

5.100.040 Tobacco retailer license required.

5.100.050 Limits on tobacco retailer licenses.

5.100.060 Application procedure.

5.100.070 Issuance of license.

5.100.080 License renewal and expiration.

5.100.090 Licenses nontransferable.

5.100.100 Fees for license.

5.100.110 Other requirements and prohibitions.

5.100.120 Compliance monitoring.

5.100.130 Revocation of license.

5.100.140 License suspension.

5.100.150 Tobacco retailing without a license or with a suspended license.

5.100.160 Enforcement.

5.100.170 Enforcement of state law regarding sales to minors.

5.100.180 Intent as to additional legal restrictions and remedies.

5.100.190 Service.

5.100.200 Severability.

5.100.010 Definitions.

As used under this article, the following terms shall have the following meanings unless otherwise indicated from the context:

Area which minors Frequent shall mean any public or private kindergarten, elementary, middle school, junior high, or high school, preschool, public library, public playground or playground area in a public park and the Pavilion located at 2000 Kirker Pass Road.

City Manager means the Concord City Manager, or his or her designee.

Person means any individual, firm, partnership, cooperative association, private corporation, personal representative, receiver, trustee, assignee or other legal entity.

Self-service display means the open display of tobacco products or tobacco paraphernalia in a manner that is accessible to the general public without the assistance of the retailer or employee of the retailer. A vending machine is a form of self-service display.

Tobacco paraphernalia means cigarette papers or wrappers, pipes, holders of smoking materials of all types, cigarette rolling machines, and any other item designed for the smoking, preparation, storing, or consumption of tobacco products.

Tobacco product means (1) any substance containing tobacco leaf, including but not limited to cigarettes, cigars, pipe tobacco, hookah tobacco, snuff, chewing tobacco, dipping tobacco, bidis, or any other preparation of tobacco; and (2) any product or formulation of matter containing biologically active amounts of nicotine that is manufactured, sold, offered for sale, or otherwise distributed with the expectation that the product or matter will be introduced into the human body, but does not include any product specifically approved by the United States Food and Drug Administration for use in treating nicotine or tobacco product dependence.

Attachment 2

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The Concord Municipal Code is current through Ordinance 21-6, passed November 9, 2021.

Tobacco retailer means any person who sells, offers for sale, or does or offers to exchange for any form of consideration, tobacco, tobacco products, or tobacco paraphernalia, or who distributes free or low cost samples of tobacco products or tobacco paraphernalia.

Tobacco retailing shall mean the doing of any of these things. This definition is without regard to the quantity of tobacco, tobacco products, or tobacco paraphernalia sold, offered for sale, exchanged, or offered for exchange. (Code 1965, § 4840; Code 2002, § 38-61. Ord. No. 01-5; Ord. No. 06-10)

5.100.020 Self-service displays prohibited.

It shall be unlawful for any person within the city to engage in tobacco retailing by means of a self-service display. (Code 1965, § 4841; Code 2002, § 38-62. Ord. No. 01-5; Ord. No. 06-10)

5.100.030 Vendor assistance.

All tobacco products shall be offered for sale exclusively by means of vendor assistance. Tobacco products shall be located exclusively in a locked case, located behind counters out of reach from customers, or in a similar location that is inaccessible to customers, requiring vendor assistance for the customer to obtain access to the tobacco products.
(Code 1965, § 4842; Code 2002, § 38-63. Ord. No. 01-5; Ord. No. 06-10)

5.100.040 Tobacco retailer license required.
(a) It shall be unlawful for any person to act as a tobacco retailer without first obtaining and maintaining a valid tobacco retailer’s license pursuant to this article for each location at which that activity is to occur. Tobacco retailing without a valid tobacco retailer’s license is a public nuisance. (b) A tobacco retailer or proprietor without a valid tobacco retailer license, including a person whose license has been revoked or suspended:
(1) Shall keep all tobacco products and tobacco paraphernalia out of public view. The public display of tobacco products or tobacco paraphernalia in violation of this provision shall constitute tobacco retailing without a license under Section 5.100.090(a).
(c) Nothing in this article shall be construed to grant any person obtaining and maintaining a tobacco retailer’s license any status or right other than the limited privilege to act as a tobacco retailer at the location in the city identified on the face of the permit and for the period of time designated. This article shall not be construed to render inapplicable, supersede, or apply in lieu of, any other provision of applicable law, including but not limited to, any provision of this Code, or any condition or limitation on smoking in an enclosed place of employment pursuant to California Labor Code Section 6404.5.
(Code 1965, § 4843; Code 2002, § 38-64. Ord. No. 01-5; Ord. No. 06-10)

5.100.050 Limits on tobacco retailer licenses.
(a) No license may issue to authorize tobacco retailing at other than a fixed location. (Code 1965, § 4844; Code 2002, § 38-65. Ord. No. 01-5; Ord. No. 06-10)

5.100.060 Application procedure.
(a) Applications for a tobacco retailer’s license shall be submitted in the name of each proprietor proposing to conduct retail tobacco sales and shall be signed by each proprietor or an authorized agent thereof. (b) It is the responsibility of each proprietor to be informed regarding all laws applicable to tobacco retailing, including those laws affecting the issuance of a tobacco retailer’s license. No proprietor may rely on the issuance of a license as a determination by the city that the proprietor has complied with all laws applicable to tobacco retailing.

A license issued contrary to this article, contrary to any other law, or on the basis of false or misleading information supplied by a proprietor shall be revoked pursuant to Section 5.100.130 of this article. Nothing in this article shall be

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The Concord Municipal Code is current through Ordinance 21-6, passed November 9, 2021. construed to vest in any person obtaining and maintaining a tobacco retailer’s license any status or right to act as a tobacco retailer in contravention of any provision of law. (c) All applications shall be submitted on a form supplied by the department and shall contain the following information:
(1) The name, address, and telephone number of each proprietor of the business that is seeking a license. (2) The business name, address, and telephone number of the single fixed location for which a license is sought. (3) A single name and mailing address authorized by each proprietor to receive all communications and notices (the “Authorized Address”) required by, authorized by, or convenient to the enforcement of this article. If an authorized address is not supplied, each proprietor shall be understood to consent to the provision of notice at the business address specified in subparagraph (2) above. (4) Proof that the location for which a tobacco retailer’s license is sought has been issued a valid state tobacco retailer’s license by the California Board of Equalization. (5) Whether or not any proprietor has admitted violating, or has been found to have violated, this article or whose proprietorship has admitted violating, or has been found to have violated, this article, and, if so, the dates and locations of all such violations within the previous six years. (6) Such other information as the department deems necessary for the administration or enforcement of this article.
(7) All information required to be submitted in order to apply for a tobacco retailer’s license shall be updated with the department whenever the information changes. A tobacco retailer shall provide the department with any updates within ten (10) business days of a change.
(Code 1965, § 4845; Code 2002, § 38-66. Ord. No. 01-5; Ord. No. 06-10)

5.100.070 Issuance of license.

Upon the receipt of an application for a tobacco retailer’s license and the license fee required by this article, the department shall issue a license unless substantial evidence demonstrates that one or more of the following bases for denial exists:
(a) The information presented in the application is incomplete, inaccurate, or false. Intentionally supplying inaccurate or false information shall be a violation of this article. (b) The application seeks authorization for tobacco retailing for a proprietor to whom this article prohibits a license to be issued.
(c) The application seeks authorization for tobacco retailing that is prohibited pursuant to this article, that is unlawful pursuant to this code which includes but is not limited to the city’s zoning ordinance, building codes, and business license tax ordinance, or that is unlawful pursuant to any other law. (d) Failure to pay an outstanding fine.
(Code 1965, § 4846; Code 2002, § 38-67. Ord. No. 01-5; Ord. No. 06-10)

5.100.080 License renewal and expiration.
(a) Renewal of license. A tobacco retailer license is invalid unless the appropriate fee has been paid in full and the term of the license has not expired. The term of a tobacco retailer license is one year. Each tobacco retailer shall apply for the renewal of his or her tobacco retailer’s license and submit the license fee no later than thirty (30) days prior to expiration of the term.

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The Concord Municipal Code is current through Ordinance 21-6, passed November 9, 2021. (b) Expiration of license. A tobacco retailer’s license that is not timely renewed shall expire at the end of its term. To reinstate a license that has expired, or to renew a license not timely renewed pursuant to subparagraph (a), the proprietor must follow the application procedures set forth in Concord Municipal Code Section 5.100.060. (Code 1965, § 4847; Code 2002, § 38-68. Ord. No. 01-5; Ord. No. 06-10)

5.100.090 Licenses nontransferable.
(a) A tobacco retailer’s license may not be transferred from one person to another or from one location to another.

Whenever a tobacco retailing location has a change in proprietors, a new tobacco retailer’s license is required. (b) Notwithstanding any other provision of this article, prior violations at a location shall continue to be counted against a location and license ineligibility periods shall continue to apply to a location unless:
(1) The location has been fully transferred to a new proprietor or fully transferred to entirely new proprietors. (Code 1965, § 4848; Code 2002, § 38-69. Ord. No. 01-5; Ord. No. 06-10)

5.100.100 Fees for license.

The fee to issue or to renew a tobacco retailer’s license shall be established in the Resolution Establishing Various Municipal Fees and Charges. The fee shall be calculated so as to recover the total cost of both license administration and license enforcement, including, issuing the license, administering the license program, retailer education, retailer inspection and compliance checks, documentation of violations, and prosecution of violators, but shall not exceed the cost of the regulatory program authorized by this article. All fees shall be used exclusively to fund the program.

Fees are nonrefundable except as may be required by law. (Code 1965, § 4849; Code 2002, § 38-70. Ord. No. 01-5; Ord. No. 06-10)

5.100.110 Other requirements and prohibitions.
(a) Lawful business operation. In the course of tobacco retailing or in the operation of the business or maintenance of the location for which a license issued, it shall be a violation of this article for a licensee, or any of the licensee’s agents or employees, to:
(1) Violate any local, state, or federal law applicable to tobacco products, tobacco paraphernalia, or tobacco retailing.
(2) Violate any local, state, or federal law regulating exterior, storefront, window, or door signage. (b) Display of license. Each tobacco retailer license shall be prominently displayed in a publicly visible location at the licensed location.
(c) Positive identification required. No person engaged in tobacco retailing shall sell or transfer a tobacco product or tobacco paraphernalia to another person who appears to be under the age of twenty-seven (27) years without first examining the identification of the recipient to confirm that the recipient is at least the minimum age under state law to purchase and possess the tobacco product or tobacco paraphernalia. (d) Minimum age for Persons Selling Tobacco. No person who is younger than the minimum age established by state law for the purchase or possession of tobacco products shall engage in tobacco retailing. (Code 1965, § 4850; Code 2002, § 38-71. Ord. No. 01-5; Ord. No. 06-10)

5.100.120 Compliance monitoring.
(a) Compliance with this article shall be monitored by the Concord Police Department and any other designee of the City Manager. Any peace officer may enforce the penal provisions of this article. (b) Compliance checks shall determine, at a minimum, if the tobacco retailer is conducting business in a manner that complies with tobacco laws regulating youth access to tobacco. When appropriate, the compliance check shall determine compliance with other laws applicable to tobacco retailing.

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Chapter 5.100 TOBACCO RETAILERS LICENSE

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The Concord Municipal Code is current through Ordinance 21-6, passed November 9, 2021. (Code 1965, § 4851; Code 2002, § 38-72. Ord. No. 01-5; Ord. No. 06-10)

5.100.130 Revocation of license.
(a) Grounds for Revocation. A tobacco retailer’s license may be revoked on any of the following grounds:
(1) One or more of the grounds for denial of a tobacco retailer’s license under Section 5.100.060 existed either when a license application was made or before the tobacco retailer’s license was issued; (2) The tobacco retailer’s license fee is unpaid;
(3) The tobacco retailer’s license has been transferred in violation of Section 5.100.090; or (4) The tobacco retailer has violated any section of this article, or any state or federal tobacco-related laws. (b) Notice of revocation hearing. If any grounds for revocation exist, the Police Department may issue a notice of revocation hearing. A notice of revocation hearing will be served to a tobacco retailer and will include all of the following information:
(1) The address or a definite description of the location where the tobacco retailer’s license is issued; (2) The grounds for revocation;
(3) The date of the Revocation Hearing before the City Manager. The notice of Revocation Hearing will set the hearing date no sooner than twenty days and no later than forty-five days following the date the notice of revocation hearing is served.
(c) Revocation hearing. A tobacco retailer’s license may be revoked by the City Manager, after a tobacco retailer’s license revocation hearing. At the hearing, the licensee will be given the opportunity to testify and to present evidence concerning the grounds set forth in the notice of revocation hearing. After considering the testimony and evidence submitted at the hearing, the City Manager, will issue a written decision to revoke or not revoke the license and will list in the decision the reason or reasons for that decision. The written decision will be served as specified in Section 5.100.190. A revocation is without prejudice to the filing of a new application for a tobacco retailer’s license. The City Manager’s decision is final.
(d) Final order. The tobacco retailer’s license revocation becomes a final administrative order at one of the following times:
(1) On the date of the revocation hearing, if a tobacco retailer fails to appear at a scheduled revocation hearing; (2) On the date of the decision by the City Manager, if a tobacco retailer appears at a scheduled appeal hearing before the City Manager.
(e) Revocation of license issued in error. A tobacco retailer’s license shall be revoked if the Concord Police Department finds, after the license is afforded reasonable notice and an opportunity to be heard, that one or more of the bases for denial of a license under Section 5.100.060 existed at the time application was made or at any time before the license issued. The hearing officer’s decision shall be final. (Code 1965, § 4852; Code 2002, § 38-73. Ord. No. 01-5; Ord. No. 06-10)

5.100.140 License suspension.
(a) Grounds for suspension. A tobacco retailer’s license may be suspended for any violation of this Article of this code, or any state or federal tobacco-related laws.
(b) Notice of suspension hearing. If any grounds for suspension exist, the Concord Police Department may issue a notice of suspension hearing. The notice of suspension hearing will be served to a tobacco retailer as specified in Section 5.100.190 and will include all of the following information:
(1) The date of the violation;

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Chapter 5.100 TOBACCO RETAILERS LICENSE

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The Concord Municipal Code is current through Ordinance 21-6, passed November 9, 2021. (2) The address or other description of the location where the violation occurred; (3) The code section(s) violated, or applicable state or federal law violated, and a description of the violation; (4) The time period of the tobacco retailer’s license suspension; (5) The date of the suspension hearing before the City Manager. The notice of suspension hearing will set the hearing date no sooner than twenty days and no later than forty-five days following the date the notice of suspension hearing is served.
(c) Suspension hearing. A tobacco retailer’s license may be suspended by the City Manager, after a tobacco retailer’s license suspension hearing. At the hearing, the licensee will be given the opportunity to testify and to present evidence concerning the notice of suspension hearing. After considering the testimony and evidence submitted at the hearing, the City Manager will issue a written decision to suspend or not suspend the tobacco retailer’s license. The City Manager will list in the decision the reason or reasons for the decision and will list the time period of the tobacco retailer’s license suspension, if applicable. The written decision will be served as specified in Section 5.100.190. The City Manager’s decision is final. (d) Time period of license suspension.
(1) A tobacco retailer’s license suspension may be up to thirty days for a first violation; (2) A tobacco retailer’s license suspension may be up to ninety days for a second violation occurring within twenty-four months of the first violation;
(3) A tobacco retailer’s license suspension may be up to one year for each subsequent violation occurring within twenty-four months of the most recent prior determination. (e) Final order. The tobacco retailer’s license suspension becomes a final administrative order at one of the following times:
(1) On the date of the suspension hearing, if a tobacco retailer fails to appear at a scheduled suspension hearing; (2) On the date of the decision by the City Manager, if a tobacco retailer appears at a scheduled appeal hearing. (f) During a period of license suspension, the tobacco retailer must remove from public view all tobacco products. (Code 1965, § 4853; Code 2002, § 38-74. Ord. No. 01-5; Ord. No. 06-10)

5.100.150 Tobacco retailing without a license or with a suspended license. (a) In addition to any other penalty authorized by law, if the Concord Police Department finds or any court of competent jurisdiction determines, after notice and an opportunity to be heard, that any person has engaged in tobacco retailing at a location without a valid tobacco retailer’s license, either directly or through the person’s agents or employees, the person shall be ineligible to apply for or be issued a tobacco retailing license for that location as follows:
(1) After a first violation of this article at a location within any sixty (60) month period, no new license may issue for the person at the location until thirty (30) days have passed from the date of the violation. (2) After a second violation of this article at a location within any sixty (60) month period, no new license may issue for the person at the location until ninety (90) days have passed from the date of the violation. (3) After a third or subsequent violation of this article at a location within any sixty (60) month period, no new license may issue for the person at the location until five (5) years have passed from the date of the violation. (b) In addition to any other penalty authorized by law, if the Concord Police Department finds or any court of competent jurisdiction determines, after notice and an opportunity to be heard, that any person has engaged in tobacco retailing at a location with a suspended tobacco retailer’s license, either directly or through the person’s

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The Concord Municipal Code is current through Ordinance 21-6, passed November 9, 2021. agents or employees, any suspension period shall be extended or, if the license is no longer suspended, a new suspension period shall be imposed as follows:
(1) After a first violation of this article at a location by tobacco retailing with a suspended license within any sixty (60) month period, the license may be suspended for an additional thirty (30) days. (2) After a second violation of this article at a location by tobacco retailing with a suspended license within any sixty (60) month period, the license may be suspended for an additional ninety (90) days. (3) After a third or subsequent violation of this article at a location by a tobacco retailing with a suspended license within any sixty (60) month period, the license may be revoked and no new license may issue for the tobacco retailer at the location until five (5) years have passed from the date of the violation. (c) Tobacco products and tobacco paraphernalia offered for sale or exchanged in violation of this article are subject to seizure and shall be forfeited after the licensee and any other owner of the tobacco products and tobacco paraphernalia seized is given reasonable notice and an opportunity to demonstrate that the tobacco products and tobacco paraphernalia were not offered for sale or exchange in violation of this article. The decision may be appealed pursuant to the procedures set forth in Section 5.100.140(c). Forfeited tobacco products and tobacco paraphernalia shall be destroyed.
(d) Each day after the effective date of this article on which tobacco products or tobacco paraphernalia are offered for sale in violation of this article shall constitute a violation of this article separate and apart from any other violation of this article.
(Code 1965, § 4854; Code 2002, § 38-75. Ord. No. 01-5; Ord. No. 06-10)

5.100.160 Enforcement.
(a) The remedies provided by this article are cumulative and in addition to any other remedies available at law or in equity.
(b) Violations of this article are subject to a civil action brought by the City Attorney. (c) Violations of this article may, in the discretion of the City Attorney, be prosecuted as infractions or misdemeanors.
(d) Causing, permitting, aiding, abetting, or concealing a violation of any provision of this article shall also constitute a violation of this article.
(e) Violations of this article are hereby declared to be public nuisances. (f) In addition to other remedies provided by this article or by other law, any violations of this article may be remedied by a civil action brought by the City Attorney, including, for example, administrative or judicial nuisance abatement proceedings, civil or criminal code enforcement proceedings, and suits for injunctive relief. (Code 1965, § 4855; Code 2002, § 38-76. Ord. No. 01-5; Ord. No. 06-10)

5.100.170 Enforcement of state law regarding sales to minors.

If a clerk or employee sells a tobacco product to a minor, the retailer shall immediately notify the appropriate local law enforcement agency of the violation of Penal Code § 308 for enforcement under that statute. (Code 1965, § 4856; Code 2002, § 38-77. Ord. No. 01-5; Ord. No. 06-10)

5.100.180 Intent as to additional legal restrictions and remedies.

Nothing in this article is intended to alter the obligations or restrictions that apply to any person under any other law governing signs, billboards, tobacco advertising or any other matter covered by this article. The remedies set forth in this article are not exclusive. If any action prohibited by this article is also unlawful under any other law, the penalties and remedies under such other laws may be pursued in addition to those provided in this article.

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Chapter 5.100 TOBACCO RETAILERS LICENSE

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The Concord Municipal Code is current through Ordinance 21-6, passed November 9, 2021. (Code 2002, § 38-78. Ord. No. 06-10)

5.100.190 Service.

All notices or decisions required to be served by this chapter will be served either by the method specified in subsection (a) or by the method specified in subsection (b). The failure of a person to receive a properly addressed service shall not affect the validity of the proceedings. (a) Certified mail. Certified mail will be addressed to the tobacco retailer at the address shown on the license application. Service is deemed complete upon the deposit of the notice or decision, postage pre-paid, in the United States mail. Simultaneously, the same notice or decision may be sent by regular mail. If a notice or decision sent by certified mail is returned unsigned, then service is deemed effective pursuant to regular mail on the date mailed. (b) Personal service. Personal service is deemed complete on the date the notice or decision is personally served. (Code 2002, § 38-79. Ord. No. 06-10)

5.100.200 Severability.

If any provision of this article or its application to any person or circumstance is declared invalid or unenforceable by a court of competent jurisdiction, this article, to the extent it can be given effect, or the application of this article to persons other than the person to whom it is held invalid, shall not be affected thereby, and to this end, the provisions of this article are severable. If any provision of this article or its application to any person or circumstance is declared invalid or unenforceable by a court of competent jurisdiction, this article, to the extent it can be given effect, or the application of this article to persons other than the person to whom it is held invalid, shall not be affected thereby, and to this end, the provisions of this article are severable. (Code 2002, § 38-80. Ord. No. 06-10)

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Concord Municipal Code
Chapter 8.35 SMOKING

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The Concord Municipal Code is current through Ordinance 22-8, passed May 24, 2022.

Chapter 8.35

SMOKING
Sections:

Article I. Interpretation, Construction and Severability, and Definitions

8.35.010 Interpretation, construction and severability.

8.35.020 Definitions.

Article II. Smoking in Public Places and Places of Employment

8.35.030 Prohibition of smoking in city-owned facilities.

8.35.040 Prohibition of smoking in downtown Concord.

8.35.050 Regulation of smoking in enclosed and unenclosed areas.

8.35.060 Permissible smoking areas.

8.35.070 Posting requirements.

8.35.080 Vending machines.

8.35.090 Distribution of free samples and coupons; out-of-package sales.

Article III. Prohibiting Smoking in and Around Multiunit Residences

8.35.100 No smoking permitted in common areas except in designated smoking areas.

8.35.110 Nonsmoking buffer zones.

8.35.120 Required and implied lease terms for all new and existing units in multiunit residences.

8.35.130 Notice and signage requirements.

Article IV. Cannabis

8.35.140 Cannabis.

Article V. Nuisance and Enforcement

8.35.150 Nuisance.

8.35.160 Enforcement.

Cross references: Streets, sidewalks, and other public places, Title 12.

Article I. Interpretation, Construction and Severability, and Definitions

8.35.010 Interpretation, construction and severability. (a) Interpretation.
(1) The provisions of this chapter are restrictive only and establish no new rights for a person who engages in smoking. Notwithstanding (a) any provision of this chapter or of this Code, (b) any failure by any person to restrict smoking under this chapter, or (c) any explicit or implicit provision of this Code that allows smoking in any place, nothing in this Code shall be interpreted to limit any person’s legal rights under other laws with regard to smoking, including, for example, rights in nuisance, trespass, property damage, and personal injury or other legal or equitable principles.
(2) Notwithstanding any provision to the contrary, nothing in this chapter shall be interpreted to restrict or otherwise regulate the use of a drug, device, or combination product authorized for sale by the United States Food and Drug Administration, as those terms are defined in the Federal Food, Drug, and Cosmetic Act. (3) Nothing in this chapter is intended to preclude a person or entity that owns or controls a multiunit residence from prohibiting smoking under its control.

Attachment 3

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The Concord Municipal Code is current through Ordinance 22-8, passed May 24, 2022. (4) This article shall not be interpreted or construed to permit smoking where it is otherwise restricted by other applicable laws.
(b) Construction and severability. It is the intent of the City Council to supplement applicable state and federal law and not to duplicate or contradict such law and this chapter shall be construed consistently with that intention. If any section, subsection, subdivision, paragraph, sentence, clause, or phrase of this chapter, or its application to any person or circumstance, is for any reason held to be invalid or unenforceable, such invalidity or unenforceability shall not affect the validity or enforceability of the remaining sections, subsections, subdivisions, paragraphs, sentences, clauses, or phrases of this chapter, or its application to any other person or circumstance. The City Council hereby declares that it would have adopted each section, subsection, subdivision, paragraph, sentence, clause, or phrase hereof, irrespective of the fact that any one or more other sections, subsections, subdivisions, paragraphs, sentences, clauses, or phrases hereof be declared invalid or unenforceable. (Code 1965, § 4940; Code 2002, § 38-31. Ord. No. 85-52; Ord. No. 93-4; Ord. No. 19-7, § 6 (Exh. A))

8.35.020 Definitions.

The following words and phrases, whenever used in this article, shall be construed as hereinafter set forth, unless it is apparent from the context that they have a different meaning:

Adjacent unenclosed property. Any unenclosed area of property, publicly or privately owned, that abuts a multiunit residence, but does not include property containing single-family detached dwelling units.

Bar. An area which is devoted to the serving of alcoholic beverages and in which the service of food is only incidental to the consumption of such beverages (Department of Alcoholic Beverage Control Type 61, 42, or 48 licenses). That area of a restaurant which is devoted to the serving of alcoholic beverages and in which the service of food may be only incidental to the consumption of such beverages shall also be considered a bar. An area in which food service is only incidental shall: (1) not exceed 40 percent of a restaurant’s total seating capacity; or (2) shall encompass only those areas in which gross receipts of the restaurant from food do not exceed 40 percent. The operator of each restaurant shall designate by which method it determines its bar area.

Cannabis. Defined as set forth in California Business and Professions Code Section 26001, as that section may be amended from time to time.

Common area. Every enclosed area and every unenclosed area of a multiunit residence that residents of more than one unit are entitled to enter or use, including, but not limited to, halls, pathways, lobbies, courtyards, elevators, stairs, community rooms, playgrounds, gym facilities, swimming pools, parking garages, parking lots, grassy or landscaped areas, restrooms, laundry rooms, cooking areas, and eating areas.

Distribute. To give, sell, deliver, dispense, issue, or cause or hire any person to give, sell, deliver, dispense, issue, or offer to give, sell, deliver, dispense, or issue.

Effective date. February 6, 2020.

Electronic smoking device. An electronic device that can be used to deliver an inhaled dose of nicotine or other substances, including any component, part, or accessory of such a device, whether or not sold separately. “Electronic smoking device” includes any such device whether manufactured, distributed, marketed, or sold as an electronic cigarette, an electronic cigar, an electronic cigarillo, an electronic pipe, an electronic hookah, a vaporizer or vape pen, or any other product name or descriptor.

Employee. Any person who is employed by any employer in consideration for direct or indirect monetary wages or profit, or any person who volunteers his or her service for an employer.

Employer. Any person, partnership, or corporation, including a municipal corporation or public entity, who employs the services of one or more persons.

Enclosed or enclosed area. An area in which outside air cannot circulate freely to all parts of the area, and includes an area that has (1) any type of overhead cover, whether or not that cover includes vents or other openings, and at least three walls or other vertical constraints to airflow, including, but not limited to, vegetation of any height,

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The Concord Municipal Code is current through Ordinance 22-8, passed May 24, 2022. whether or not those boundaries include vents or other openings; or (2) four walls or other vertical constraints to airflow, regardless of composition, including, but not limited to, vegetation that exceeds six feet in height, whether or not those boundaries include vents or other openings.

Existing unit. Any unit which is not a new unit.

General public. Shoppers, customers, patrons, patients, students, clients, and other invitees of a commercial enterprise or nonprofit entity.

Landlord. Any person or agent of a person who owns, manages, or is otherwise legally responsible for a unit in a multiunit residence that is leased to a residential tenant. For purposes of this chapter, a tenant who sublets their unit (e.g., a sublessor) is not a landlord.

Multiunit residence. Property containing two or more residences, or any residences sharing common walls or otherwise attached. Multiunit residences do not include the following:
(1) A hotel or motel that meets the requirements of California Civil Code Section 1904(b)(2); (2) A recreational vehicle, mobile home, or manufactured home not located in a mobile home park; (3) A single-family detached dwelling unit, except if used as a family day care home or health facility, subject to licensing requirements;
(4) A single-family detached dwelling unit with a detached or attached accessory dwelling unit permitted pursuant to California Government Code Sections 65852.1, 65852.150, 65852.2, or an ordinance of the city adopted pursuant to those sections, except if the single-family detached dwelling unit or accessory dwelling unit is used as a family day care home or a health care facility, subject to licensing requirements. (5) Long-term health care facilities, as defined in Section 1418 of the Health and Safety Code.

New unit. A unit that has been issued a certificate of occupancy on or after the effective date and any unit that is let for residential use for the first time after the effective date.

Nonsmoking area. Any enclosed area or unenclosed area in which smoking is prohibited by:
(1) This chapter or other law;
(2) Binding agreement relating to the ownership, occupancy, or use of real property; or (3) A person with legal control over the area.

Park. Public park or recreation area as defined in Section 18.20.030.

Person. Any natural person, partnership, cooperative association, corporation, personal representative, receiver, trust, trustee, assignee, or any other legal entity, including government agencies.

Public place. Any area, whether publicly or privately owned, to which the public has access by right or invitation, express or implied, whether by payment of money or not, and regardless of any age requirement.

Place of employment. Any area under the control of a public or private employer which employees normally frequent during the course of employment, including but not limited to work areas, employee lounges, conference rooms, and employee cafeterias. A single-family detached dwelling unit is not a place of employment, unless it is used as a child care or health care facility.

Residence. A personal dwelling space, even one lacking cooking facilities or private plumbing facilities, including any associated exclusive-use enclosed area or unenclosed area, such as a private balcony, porch, deck, or patio. “Residence” includes, without limitation, a dwelling, dwelling unit, or housing unit, a personal dwelling space in a residential facility (including, but not limited to, group housing, residential care facilities, residential facilities for

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The Concord Municipal Code is current through Ordinance 22-8, passed May 24, 2022. seniors, assisted living, supportive housing, transitional housing), emergency, homeless shelter, and a recreational vehicle, mobile home, or manufactured home.

Smoke. The gases, particles, or vapors released into the air as a result of combustion, electrical ignition, or vaporization when the apparent or usual purpose of the combustion, electrical ignition, or vaporization is human inhalation of the byproducts. The term “smoke” includes, but is not limited to, tobacco smoke, vapors from an electronic smoking device, and cannabis smoke.

Smoking. Inhaling, exhaling, burning, lighting, operating, holding, or carrying any lighted, heated, or ignited cigar, cigarette, cigarillo, pipe, hookah, cannabis, electronic smoking device, or any other device that delivers nicotine, cannabis, or other substances, whether natural or synthetic, to a person.

Smoking product. Any of the following are considered to be a smoking product:
(1) Any product that is intended or used for human consumption, whether smoked, heated, chewed, absorbed, dissolved, inhaled, snorted, sniffed, or ingested by any other means, including, but not limited to, cigarettes, cigars, little cigars, chewing tobacco, pipe tobacco, snuff, cannabis, or other synthetic or organic materials. (2) Any electronic smoking device.
(3) Any component, part, or accessory of a smoking product, whether or not sold separately. “Smoking product” does not include a product that has been approved by the United States Food and Drug Administration for sale as a tobacco cessation product or for other therapeutic purposes where the product is marketed and sold solely for such an approved purpose.

Sports and entertainment, assembly. A facility as defined in Section 18.20.020.

Sports and recreation facility. A public or private facility as defined in Section 18.20.020.

Unenclosed or unenclosed area. Any area that is not enclosed or is not an enclosed area.

Unit. Any residence in a multiunit residence. Unit includes, without limitation, an existing unit and a new unit.

Vending machine. Any electronic or mechanical device or appliance the operation of which depends upon the insertion of money, whether in coin, paper bill, or other thing representative of value, which dispenses or releases a smoking product and/or smoking accessories.
(Code 1965, § 4941; Code 2002, § 38-32. Ord. No. 85-52; Ord. No. 87-3; Ord. No. 93-4; Ord. No. 11-5; Ord. No. 19-7, § 6 (Exh. A))
Cross references: Definitions generally, § 1.05.100.

Article II. Smoking in Public Places and Places of Employment

8.35.030 Prohibition of smoking in city-owned facilities. (a) Smoking is prohibited in all buildings, including within 25 feet of any exit, entrance, or operable window of a building, vehicles, and other enclosed areas occupied by city employees, owned or leased by the city, or otherwise operated by the city.
(b) Smoking is prohibited in any unenclosed area owned or leased by the city, including parks, parking lots, corporation yards, and the grounds of any building owned or leased by the city. The City Manager or designee may designate a smoking area.
(Code 1965, § 4942; Code 2002, § 38-33. Ord. No. 85-52; Ord. No. 93-4; Ord. No. 19-7, § 6 (Exh. A))

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The Concord Municipal Code is current through Ordinance 22-8, passed May 24, 2022.

8.35.040 Prohibition of smoking in downtown Concord.
(a) Purpose. The intent and purpose of prohibiting smoking at the identified locations includes, but is not limited to, protecting the public health, safety, and welfare by reducing the number of locations in downtown Concord where exposure to secondhand smoke can occur.
(b) Smoking is prohibited in the following places:
(1) All areas of downtown Concord accessible to the general public, except within smoking areas designated pursuant to subsection (c) of this section.
a. For the purposes of this section, “downtown Concord” means that portion of downtown within Parking Assessment District No. 60, as established by Ordinance No. 81-1211, adopted by the City Council on July 27, 1981, as generally shown on the map in Exhibit A.

EXHIBIT A. PROHIBITION OF SMOKING IN DOWNTOWN CONCORD
Boundaries of downtown Concord for the purposes of this section. b. This prohibition applies to the sidewalks along public and private streets within and around the perimeter of the area defined in subsection (b)(1)a. of this section, pedestrian alleys, pedestrian paseos and plazas, walkways providing access from parking lots and structures to stores or sidewalks, and all other pedestrian paths or areas that are accessible to the general public. c. Smoking is further prohibited in any unenclosed areas within 25 feet of any pedestrian path or area identified in subsection (b)(1)b. of this section.
(2) Transit vehicles and stations. Smoking is prohibited in all transit vehicles and at all transit stations, except within smoking areas designated pursuant to this article.

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The Concord Municipal Code is current through Ordinance 22-8, passed May 24, 2022. a. For the purposes of this section, transit vehicles include all buses, shuttles, and similar transit vehicles. b. For the purposes of this section, “transit stations” means all enclosed and unenclosed multi-modal platforms, sidewalks, shelters, benches, and areas where people wait for trains, buses, taxis, or other public transit, and ancillary areas such as restrooms, vending machine or kiosk areas, bicycle parking areas, and pedestrian paths and walkways.
(c) Locations within downtown Concord where smoking is permitted, even when smoking would otherwise be prohibited per this section:
(1) Single-family detached dwelling unit. To the extent not otherwise prohibited by law, smoking is permitted inside single-family detached dwelling units and unenclosed areas associated with the single-family detached dwelling unit, except when a single-family detached dwelling unit is being used for child care or as a health care facility, subject to applicable licensing requirements. (2) Private vehicles. Smoking is permitted inside a private vehicle, unless otherwise prohibited by this Code or state law.
(3) Designated smoking areas. The owner or operator with control over any privately owned property may designate an area where smoking is permitted in a location where smoking would otherwise be prohibited under this article, provided that:
a. The smoking area is as small as is practicable to accommodate the number of smokers that are expected to use the area. Notwithstanding this criteria, an owner may not designate a smoking area that would be smaller than 50 square feet, or with a dimension on any side less than five feet. b. Designated smoking areas within outdoor dining areas shall not exceed 40 percent of the total floor area utilized for outdoor dining. Within outdoor dining areas, designated smoking areas must be separated from nonsmoking areas with a physical barrier that prevents secondhand smoke from passing between the two areas. The physical barrier shall be the lesser of (1) at least seven feet in height, or (2) extend to the ceiling or covering of the outdoor dining area. The owner may use a ventilation system in place of a physical barrier, provided such owner demonstrates to the satisfaction of the City Manager, or his or her designee, that the proposed ventilation system will be at least as effective as a physical barrier in preventing secondhand smoke from passing between designated smoking areas and nonsmoking areas. In addition, any such designated smoking area shall not be visible from the property frontage. c. The smoking area is not located within five feet of any entrance or exit, or walkway to such entrance or exit, of any building or facility open to the public.
d. The smoking area is posted with one or more conspicuously displayed signs that identify the area as a designated smoking area.
e. The City Manager or his or her designee may require that any designated smoking area be modified or removed if, in the sole and absolute discretion of the City Manager or his or her designee, it does not satisfy the criteria of subsection (d)(3) of this section. (d) Posting of signs.
(1) Time of posting. Every business or property subject to this chapter shall post the signs required by this section within 30 days of the effective date of the ordinance codified in this chapter. Every business or property which becomes subject to the provisions of this section after the effective date shall post the required signs immediately upon commencing operations.
(2) Sign locations.
a. Every outdoor dining area, outdoor shopping area, and outdoor shopping center where smoking is prohibited by this section must have one or more conspicuously displayed signs stating that smoking is

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The Concord Municipal Code is current through Ordinance 22-8, passed May 24, 2022. prohibited within downtown Concord. Multiple signs must be provided as appropriate for larger areas to ensure that signs are readily visible to all users of the area. b. Every entrance to a building or other enclosed space that is open to the general public must have at least one conspicuously displayed sign stating that smoking is prohibited within downtown Concord per this section.
c. The City Manager will cause the installation of conspicuously displayed signs indicating that smoking is prohibited at appropriate locations in all unenclosed city facilities and transit facilities and at the entrance to all enclosed city facilities and transit facilities where smoking is prohibited under this section. d. The City Manager will cause the installation of conspicuously displayed signs indicating that smoking is prohibited at appropriate locations on public sidewalks and other public pedestrian areas in the downtown Concord.
e. Signs required under this section are exempt from the sign requirements in the Development Code. (3) Sign content and materials.
a. The signs required herein must have text and/or graphics to clearly indicate that smoking is prohibited in the area and include an appropriate Municipal Code citation. b. Any text must be clearly contrasted with the background and must be a minimum of one inch tall. The text must state “No Smoking,” “Smoke Free Area,” or another phrase to clearly indicate that smoking is prohibited.
c. Any graphics must be substantially similar to the international “No Smoking” symbol, consisting of a pictorial representation of a burning cigarette enclosed in a red circle with a red bar across it. d. All signs located in unenclosed areas must be made of permanent, weather-resistant materials. (Code 1965, § 4943; Code 2002, § 38-34. Ord. No. 85-52; Ord. No. 93-4; Ord. No. 11-5; Ord. No. 13-6; Ord. No. 19-7, § 6 (Exh. A))

8.35.050 Regulation of smoking in enclosed and unenclosed areas. (a) Smoking is prohibited in the following places within the city:
(1) Enclosed places of employment, in accordance with California Labor Code Section 6404.5. (2) Enclosed public places.
(3) Parks.
(4) Within 25 feet of a playground or tot lot sandbox area, including the disposal of tobacco-related waste, such as cigarette butts, in accordance with California Health and Safety Code Section 104495. (5) All enclosed and unenclosed common areas, on or after the effective date, other than in a designated smoking area established pursuant to Section 8.35.100, is a violation of this chapter. (6) A new unit, including any associated exclusive-use enclosed areas or unenclosed areas, such as a private balcony, porch, deck, garages, carport areas or patio, on or after the effective date, is a violation of this chapter. (7) An existing unit, including any associated exclusive-use enclosed areas or unenclosed areas, such as a private balcony, porch, deck, garages, carport areas or patio, on or after January 1, 2021, is a violation of this chapter.
(8) A recreational vehicle, mobile home, or manufactured home located in a mobile home park.

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The Concord Municipal Code is current through Ordinance 22-8, passed May 24, 2022. (9) Sports and entertainment, assembly and sports and recreation facility, except a designated smoking area may be provided, which shall be segregated from nonsmoking areas. (10) Single-family detached dwelling unit, when used as child care or health care facilities. (b) Notwithstanding any other provision of this section, any owner, operator, manager, or other person who controls any establishment described in this section may declare that entire establishment as a nonsmoking establishment. (Code 1965, § 4944; Code 2002, § 38-35. Ord. No. 85-52; Ord. No. 93-4; Ord. No. 11-5; Ord. No. 19-7, § 6 (Exh.

A))

8.35.060 Permissible smoking areas.

Notwithstanding any provision of this article to the contrary, the following areas shall not be subject to the smoking restrictions of this article:
(1) A single-family detached dwelling unit except when used as a family day care home or health care facility, subject to licensing requirements.
(2) Inside an accessory dwelling unit, attached to or detached from a single-family dwelling unit, permitted pursuant to California Government Code Section 65852.1, 65852.150, 65852.2 or an ordinance of the city adopted pursuant to those sections, except if the single-family detached dwelling unit or accessory dwelling unit is used as a family day care or health care facility, subject to licensing requirements. (3) A recreational vehicle, mobile home, or manufactured home not located in a mobile home park. (4) Hotel and motel rooms rented to guests; provided, however, that each hotel and motel designates not less than 80 percent of its guestrooms as nonsmoking rooms and removes ashtrays from these rooms. (5) Retail or wholesale tobacco shops and private smokers’ lounges that deal exclusively in the sale of tobacco and smoking paraphernalia.
(Code 1965, § 4946; Code 2002, § 38-37. Ord. No. 85-52; Ord. No. 93-4; Ord. No. 11-5; Ord. No. 19-7, § 6 (Exh.

A). Formerly 8.35.070)

8.35.070 Posting requirements.
(a) “Smoking” or “No Smoking” signs, whichever are appropriate, with letters of not less than one inch in height, or the international “No Smoking” symbol (consisting of a pictorial representation of a burning cigarette enclosed in a red circle with a red diagonal bar across it) shall be clearly, sufficiently, and conspicuously posted in every building or other place where smoking is controlled by this article, by the owner, operator, manager, or other person having control of such building or other place.
(b) Every hotel or motel regulated by this article will have posted at its entrance a sign clearly stating that nonsmoking rooms are available, and every patron shall be asked as to his preference. (Code 1965, § 4947; Code 2002, § 38-38. Ord. No. 85-52; Ord. No. 93-4; Ord. No. 11-5; Ord. No. 19-7, § 6 (Exh.

A). Formerly 8.35.080)

8.35.080 Vending machines.

Vending machines as defined in Section 8.35.020 may be located only on those premises which have either a Type 61, Type 42, or Type 48 license from the Department of Alcoholic Beverage Control. Vending machines must be located at least 25 feet from any entry into the premises. (Code 1965, § 4948; Code 2002, § 38-39. Ord. No. 85-52; Ord. No. 93-4; Ord. No. 11-5; Ord. No. 19-7, § 6 (Exh.

A). Formerly 8.35.090)

8.35.090 Distribution of free samples and coupons; out-of-package sales. (a) Distribution of free samples and coupons.

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The Concord Municipal Code is current through Ordinance 22-8, passed May 24, 2022. (1) No person, firm, association, or corporation in the business of selling or otherwise distributing cigarettes or other tobacco or smoking products for commercial purposes shall, in the course of such business, distribute, direct, authorize, or permit any agent or employee to distribute: (a) any cigarette or other tobacco or smoking products, including any smokeless tobacco products; or (b) coupons, certificates, or other written material which may be redeemed for tobacco products without charge, to any person on any public street or sidewalk; in any public park, playground, or on any other public ground; or in any public building. (2) No agent or employee of any person, firm, association, or corporation in the business of selling or otherwise distributing cigarettes or other tobacco or smoking products for commercial purposes shall, in the course of such business, distribute: (a) any cigarette or other tobacco or smoking products, including any smokeless tobacco products; or (b) coupons, certificates, or other written material which may be redeemed for smoking products without charge, to any person on any public street or sidewalk; in any public park, playground, or on any other public ground; or in any public building.
(3) For purposes of this section, “public ground” and “public building” include sports and entertainment, assemblies and sports and recreation facilities as defined in Section 8.35.020, except a bar, whether enclosed or unenclosed, for which a charge is made for admission, whether publicly or privately owned. (b) Out-of-package sales. No person shall sell, or offer for sale, cigarettes, smoking products, or smokeless tobacco not in the original packaging provided by the manufacturer. (Code 1965, § 4949; Code 2002, § 38-40. Ord. No. 85-52; Ord. No. 93-4; Ord. No. 11-5; Ord. No. 19-7, § 6 (Exh.

A). Formerly 8.35.100)
Article III. Prohibiting Smoking in and Around Multiunit Residences

8.35.100 No smoking permitted in common areas except in designated smoking areas.

Smoking in a common area other than in a designated smoking area established pursuant to this chapter is a violation of this chapter.
(a) A person with legal control over a common area, such as a landlord or homeowners’ association, may designate a portion of the common area as a designated smoking area provided the designated smoking area complies with subsection (b) of this section at all times.
(b) A designated smoking area:
(1) Must be an unenclosed area;
(2) Must be at least 25 feet from unenclosed areas primarily used by children and unenclosed areas with improvements that facilitate physical activity including, for example, playgrounds, tennis courts, swimming pools, and school campuses;
(3) Must be located at least 25 feet from any nonsmoking area. The location of nonsmoking areas may change due to the new enactment of a law, execution of an agreement, or other event that affects the area’s nonsmoking designation. If an event occurs that changes a nonsmoking area, a person with legal control over a designated smoking area located less than 25 feet from that nonsmoking area must modify, relocate, or eliminate that designated smoking area so as to maintain compliance with the requirements of this subsection (b). In the case of a nonsmoking area on a neighboring property established by private agreement or designation and not by this chapter or other law, it shall not be a violation of this chapter for a person with legal control over the property to designate a smoking area within 25 feet of the nonsmoking area unless that person has actual knowledge of, or a reasonable person would know of, the private agreement or designation; (4) Must be no more than 10 percent of the total unenclosed area of the multiunit residence for which it is designated;
(5) Must have a clearly marked perimeter;
(6) Must be identified by conspicuous signs; and

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The Concord Municipal Code is current through Ordinance 22-8, passed May 24, 2022. (7) Must not overlap with any enclosed or unenclosed area where smoking is prohibited by this chapter or other law.
(c) No person with legal control over a common area in which smoking is prohibited by this chapter or other law shall knowingly permit the presence of ashtrays, ashcans, or other receptacles designed for or primarily used for disposal of smoking waste within any area that is not a designated smoking area. (Ord. No. 19-7, § 6 (Exh. A))

8.35.110 Nonsmoking buffer zones.
(a) Smoking is prohibited in adjacent unenclosed property located within 25 feet in any direction of any doorway, window, opening, or other vent into an enclosed area of a unit. (b) Subsection (a) of this section does not apply to a person who is smoking in the restricted buffer zone area while actively passing on the way to another destination.
(Ord. No. 19-7, § 6 (Exh. A))

8.35.120 Required and implied lease terms for all new and existing units in multiunit residences. (a) Existing units. Every lease or other rental agreement for the occupancy of any existing unit entered into, renewed, or continued month to month on or after January 1, 2021, shall include the provisions set forth in subsection (c) of this section on the earliest possible date allowable by law. (b) New units. Every lease or other rental agreement for the occupancy of any new unit entered into, renewed, or continued month to month on or after the effective date shall include the provisions set forth in subsection (c) of this section.
(c) Lease provisions.
(1) A clause providing that it is a material breach of the agreement to knowingly or intentionally allow, or engage in, smoking in the unit, including exclusive-use areas such as balconies, porches, or patios, substantially similar to the following:

It is a material breach of this agreement for tenant to engage in smoking in the unit or exclusive use areas such as balconies, porches, or patios. Moreover, it is a material breach of this agreement for tenant to knowingly or intentionally allow any other person subject to the control of the tenant to engage in smoking in the unit or exclusive use areas such as balconies, porches, or patios.
(2) A clause providing that it is a material breach of the agreement for tenant to knowingly and intentionally allow, or engage in, smoking in any common area of the multiunit residence other than a designated smoking area, substantially similar to the following:

It is a material breach of this agreement for tenant to engage in smoking in any common area of the property, except in an outdoor designated smoking area, if one exists. In addition, it is a material breach of this agreement for tenant to knowingly or intentionally allow any other person subject to the control of the tenant to engage in smoking in any common area of the property, except in an outdoor designated smoking area, if one exists. (3) A clause providing that it is a material breach of the agreement for tenant to violate any law regulating smoking while anywhere on the property, or to knowingly and intentionally allow any other person subject to the control of the tenant to engage in such behavior, substantially similar to the following:

It is a material breach of this agreement for tenant to violate any law regulating smoking while anywhere on the property. Moreover, it is a material breach of this agreement for tenant to knowingly or intentionally allow any other person subject to the control of the tenant to violate any law regulating smoking while anywhere on the property.

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The Concord Municipal Code is current through Ordinance 22-8, passed May 24, 2022. (4) A clause expressly conveying third-party beneficiary status to all occupants of the multiunit residence as to the smoking provisions of the lease or other rental agreement, substantially similar to the following:

Other occupants of the property are express third-party beneficiaries of those provisions in this agreement regarding smoking. As such, other occupants of the property may enforce such provisions by any lawful means, including by bringing a civil action in a court of law. (d) Whether or not a landlord complies with subsections (a) and (b) of this section, the clauses required by those subsections shall be implied and incorporated by law into every agreement to which subsection (a) or (b) of this section apply and shall become effective as of the earliest possible date on which the landlord could have made the insertions pursuant to subsection (a) or (b) of this section. (e) A tenant who breaches, or knowingly and intentionally allows any other person subject to the control of the tenant to breach, a smoking provision of a lease or other rental agreement for the occupancy of a unit shall be liable for the breach to (i) the landlord; and (ii) any occupant of the unit who is exposed to smoke or who suffers damages as a result of the breach. A landlord shall not be liable to any person for a tenant’s breach of smoking regulations if the landlord has fully complied with this section.
(f) Failure to enforce any smoking provision required by this chapter shall not affect the right to enforce such provision in the future, nor shall a waiver of any breach constitute a waiver of any subsequent breach or a waiver of the provision itself.
(Ord. No. 19-7, § 6 (Exh. A))

8.35.130 Notice and signage requirements.
(a) Every landlord shall deliver the following notices to (1) each existing unit on or before July 1, 2020, and (2) any new unit as of the effective date:
(1) A written notice clearly stating:
a. All units are designated nonsmoking units and smoking is illegal in a unit, including any associated exclusive-use enclosed area or unenclosed area, such as a private balcony, porch, deck, or patio, as of January 1, 2021, for any existing unit and as of the effective date for any new unit; and b. Smoking in all common areas is a violation of this chapter. (2) A copy of this chapter or a web address to this chapter on the city’s internet website. (b) As of July 1, 2020, every landlord shall provide prospective tenants with written notice clearly stating that:
(1) Smoking is prohibited in units, including any associated exclusive-use enclosed area or unenclosed area, such as, for example, a private balcony, porch, deck, or patio; and (2) Smoking is prohibited in all enclosed and unenclosed common areas, other than in a designated smoking area.
(c) As of January 1, 2021, for any existing unit and as of the effective date for any new unit, every seller of a unit in a multiunit residence shall provide prospective buyers with written notice clearly stating that:
(1) Smoking is prohibited in units, including any associated exclusive-use enclosed area or unenclosed area, such as, for example, a private balcony, porch, deck, or patio; and (2) Smoking is prohibited in all enclosed and unenclosed common areas, other than in a designated smoking area.
(d) The person or persons with legal control over common areas shall post clear and unambiguous “No Smoking/No Vaping” signs in sufficient numbers and locations in common areas where smoking is prohibited by this chapter or other law. The person or persons with legal control over the common areas shall maintain such signs. The absence of

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Concord Municipal Code
Chapter 8.35 SMOKING

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The Concord Municipal Code is current through Ordinance 22-8, passed May 24, 2022. signs shall not be a defense to a violation of any provision of this chapter. “No Smoking/No Vaping” signs are not required inside or on doorways of units.
(e) No person with legal control over any nonsmoking area shall permit smoking in the nonsmoking area, except as provided in Section 8.35.100, No smoking permitted in common areas except in designated smoking areas. (Ord. No. 19-7, § 6 (Exh. A))
Article IV. Cannabis

8.35.140 Cannabis.

Pursuant to California State law, Health and Safety Code Sections 11362.3 and 11362.79, smoking cannabis is prohibited wherever smoking tobacco is prohibited. In addition, smoking cannabis is prohibited in the following places:
(a) In or upon all property owned, leased, or operated by the city, expressly including any park, street, sidewalk, trail, bike path, alley, highway, parking lot or parking structure, or in any other public place as defined in this chapter and by state law. (See, Cal. Health and Safety Code § 11362.3(a)(1).) (b) Within 1,000 feet of a school, day care center, or youth center while children are present at such school, day care center, or youth center, except in or upon the grounds of a single-family detached dwelling unit if such smoking is not detectable by others on the grounds of such a school, day care center, or youth center while children are present. (c) In or upon the grounds of a school, day care center, or youth center, regardless of whether children are present. (See Cal. Health and Safety Code § 104559; Labor Code § 6404.5.) (d) While driving, operating, or riding in the passenger seat or compartment of a motor vehicle, boat, vessel, aircraft, or other vehicle used for transportation. (See, Cal. Health and Safety Code § 11362.3; Vehicle Code § 23152.) (e) Smoking or ingesting cannabis is prohibited in any public place, as defined herein. (Ord. No. 19-7, § 6 (Exh. A))
Article V. Nuisance and Enforcement

8.35.150 Nuisance.
(a) Any violation of this chapter is hereby declared to be a public nuisance pursuant to Chapter 8.25 (Neighborhood Preservation), Article I (Public Nuisances).
(b) Causing, permitting, aiding, or abetting a violation of any provision of this chapter shall constitute a violation of this chapter.
(c) For all purposes within the jurisdiction of the city, nonconsensual exposure to smoke occurring on or drifting into residential property is a nuisance, and the uninvited presence of smoke on residential property is a nuisance. (d) No person shall intimidate, harass, or otherwise retaliate against any person who seeks compliance with this chapter. Moreover, no person shall intentionally or recklessly expose another person to smoke in response to that person’s effort to achieve compliance with this chapter. (f) No person or employer shall discharge, refuse to hire, or in any manner retaliate against any person, employee, or applicant for employment because such person exercises any rights afforded by this article. (Ord. No. 19-7, § 6 (Exh. A))

8.35.160 Enforcement.
(a) Private right of enforcement. Any person, including a legal entity or organization acting for the interests of itself, its members, or the general public, may bring a civil action to enforce this chapter by way of a conditional judgment or an injunction to prevent future such violations and may sue to recover such actual or statutory damages as they

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Concord Municipal Code
Chapter 8.35 SMOKING

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The Concord Municipal Code is current through Ordinance 22-8, passed May 24, 2022. may prove. In any such action, administrative proceeding, or special proceeding to abate a nuisance, the prevailing party may recover attorneys’ fees.
(b) City discretion. In addition to the civil, criminal, and administrative remedies available, the City Attorney or Chief of Police, in their sole discretion, may abate the violation including under the procedure set forth in Section

8.25.080, may issue citations and fines under Section 8.25.070, and may pursue any and all legal and equitable remedies for the recovery of fines, costs, and/or associated charges owed to the city as set forth in Chapter 8.25 (Neighborhood Preservation), Article I (Public Nuisances). Pursuit of one remedy does not preclude the pursuit of any other remedies until the total fines and abatement charges have been recovered. (c) Nothing in this chapter shall create a right of action in any person against the city or its agents to compel city or other public entity enforcement of this chapter against private parties. Neither the city, any member of the city, or any other officer, official, employee, or agent of the city shall be liable for any person’s breach of this chapter, any other breach of this chapter, or the city’s failure to enforce all or any portion of this chapter. (Ord. No. 19-7, § 6 (Exh. A))

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Concord Municipal Code Page 1/2
The Concord Municipal Code is current through Ordinance 22-8, passed May 24, 2022.

18.200.220 Convenience stores.

Where allowed by Division II of this title (Zoning Districts – Uses and Standards), convenience stores and convenience stores with alcohol sales shall comply with the requirements of this section.

A. Convenience Stores with No Alcohol Sales.

1. Convenience stores shall not operate past midnight unless operating in connection with a gas station.

Convenience stores connected to gas stations may have the same operating hours as the gas station, including 24 hours; provided, that all store transactions after midnight shall be from a secure outdoor walk-up window.

2. The sale of tobacco products shall comply with all applicable local, state, and federal laws in addition to the following:
a. Tobacco products shall be located behind the sales counter or other location where they are accessible by employees only. Not more than 10 percent of the sales floor area shall be used to display tobacco products for sale. Tobacco products shelved or displayed vertically on or along a wall shall be limited to 50 square feet of display area or 10 percent of the total wall area (limited to one wall) on which the shelves or displays are attached to, whichever is greater.
b. No advertisement of tobacco products in areas outside of the building or in window areas is allowed. c. Sales of cigarette papers or wrappers, pipes, holders of smoking materials of all types, cigarette rolling machines, and any other item or paraphernalia designed for the smoking, preparation, storing, or consumption of tobacco products is prohibited.
d. Sales of individual cigarettes or cigars are prohibited.

3. All vending machines and similar equipment shall be located indoors except for water refilling stations, propane tank cages, and ice machines.

4. At least one exterior trash receptacle shall be provided within 20 feet of the store entrance.

5. Storefronts and windows shall be transparent and allow views into the convenience store.

6. Signs shall comply with the applicable provisions of Chapter 18.180 CDC in addition to the following:
a. No paper or printed signs advertising products or services are allowed except for informational or regulatory signs required by city, state, or federal agencies and the California State Lottery.

B. Convenience Stores with Alcohol Sales.

1. Use Permit and Finding of Public Convenience and Necessity (FOPCN). Convenience stores with alcohol sales shall obtain a use permit subject to the requirements of Chapter 18.435 CDC (Minor Use Permit and Use Permits) and CDC 18.200.040 (Alcoholic beverage sales) when the California Department of Alcoholic Beverage Control (ABC) has denied an application for the sale of alcoholic beverages based on an undue concentration of licenses or law enforcement criteria, thereby requiring an FOPCN for the sales activity in accordance with California Business and Professions Code Section 23958.4.

2. The requirements imposed for convenience stores without alcohol sales stated in subsections (A)(1) through (6) of this section shall also apply to convenience store with alcohol sales. In addition, the use permit for convenience store with alcohol sales (with accompanying FOPCN as appropriate) shall be subject to the following standards, unless modified by the review authority:
a. No alcohol sales shall occur after 10:00 p.m. Alcoholic beverages shall be located in coolers or storage containers that can be locked or made inaccessible to the public when alcohol sales are not allowed. b. Sales of distilled liquor or spirits, single beers (bottle or can), and malt liquor are prohibited.

Attachment 4

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Concord Municipal Code Page 2/2
The Concord Municipal Code is current through Ordinance 22-8, passed May 24, 2022. c. No display or sale of beer or wine from an ice tub is allowed. d. No advertisement of alcohol beverages in areas outside of the building or in window areas is allowed. e. No alcoholic beverages shall be consumed on the premises. A sign plan shall be submitted as part of the use permit that includes signage outside the building(s) notifying customers of this requirement. f. The owner and/or convenience store operator shall be responsible for discouraging loitering within the premises, to notify police when necessary, and shall be required to participate in the Concord police department’s Authorization to Arrest Program, or in any similar program offered by the Concord police department.
g. The convenience store shall operate under a security plan reviewed and approved by the Concord police department.
h. Display of Permit. A copy of the conditions of approval for the permit issued for the sale of alcohol beverages shall be displayed on the premises of the establishment in a place where any member of the public may readily view the permit.
i. The convenience store shall provide an annual report to the planning division regarding its compliance with the requirements of this section and all conditions of approval associated with the use permit.

C. Permit Revocation. The planning manager may refer a use permit for a convenience store with alcohol sales to the review authority to revoke or modify the conditions of the permit in accordance with Chapter 18.540 CDC (Enforcement). [Ord. 21-5 (Exh. D)].

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From: William Bruzzone
To: Spilman, Grant
Cc: Abejo, Frank
Subject: Re: 8/16/22 - City of Concord Special Meeting of the City Council Committee on Policy Development & Internal Operations
Date: Friday, August 05, 2022 9:04:12 AM
Grant, Frank,
Of all the problems Concord has, this does not even make the list. Additionally, these issues are handled at the State and Federal level. Why not handle this at the Girl Scout level? Huge waste of time and money not to mention the redundancy…….

Bad government and getting worse. You Democrats are destroying everything you touch and running people out of Concord and the State.

Keep up the bad work.

Sent from my iPhone
On Aug 5, 2022, at 8:30 AM, Spilman, Grant
<[email protected]> wrote:

Special Meeting of the City Council Committee on
Policy Development & Internal Operations
The Planning Division of the City of Concord, on Tuesday, August 16, 2022 at 6:00 p.m. in the Council Chamber, 1950 Parkside Drive, Concord, California, will conduct a special meeting of the City Council Committee on Policy Development & Internal Operations, to discuss potential amendments to the Concord Municipal Code regarding the sale and use of tobacco products and enforcement of such regulations.

For further details, contact Frank Abejo, Principal Planner, at [email protected] or at (925) 671-3128.

Attachment 5

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May 10, 2022
Re: Flavored Tobacco Products and OUR KIDS
Attn: City Council Committee on Policy Development & Internal Operations Dear Mayor Aliano and City of Concord Councilmembers,
As two cofounders of Parents Against Vaping E-cigarettes (PAVe), a national organization founded in 2018 by three moms as a grassroots response to the youth vaping epidemic, we write today to express our strong support to reprioritize ending the sale of all flavored e-cigarettes and all other FLAVORED tobacco products in Concord, with no exemptions.

PAVe’s passionate parent volunteers have been advocating across California for ending the sale of all flavored tobacco products, participating in successful legislative campaigns in San Francisco (Proposition C), Orinda, Sacramento, San Jose, and the County of Los Angeles; and at the state level where we helped pass SB 793, which is now on hold due to Big Tobacco’s referendum. We are grateful to serve as important partners for California’s county, city, and state tobacco prevention coalitions.

According to the 2021 National Youth Tobacco Survey (NYTS), over 2 million young people are currently vaping, and the research has proven over and over that flavors are hooking our kids. The latest figures show that 8 out of 10 teens who vape use flavors. With 40% of high-school users using an e-cigarette on 20 or more days out of the month, we must take action immediately to protect these teens from becoming an entire generation of nicotine addicts.

A report published by Data Bridge Market Research published on January 13, 2022, stated, "Various flavor offerings with shisha tobacco and widespread adoption by the various themed restaurants as well as the youth population has been directly impacting the growth of shisha tobacco market. Variety of flavor offerings in shisha tobacco is one of the major driving factors as a large portion of the youth are willing to take up flavored smoking.” This is a NOW issue. For these reasons, we are proud to advocate for a strong tobacco retail license ordinance in Concord that includes a comprehensive ordinance that includes hookah, e-cigarettes, and ALL flavored tobacco products. Please provide the kids of Concord with the same protections enjoyed by the kids in many other surrounding municipalities and prioritize lives, health equity, and prevention during this public health emergency! Sincerely,
Dorian Fuhrman and Meredith Berkman
Co-Founders, PAVe www.parentsagainstvaping.org

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From: Michael McDermott <[email protected]>
Sent: Tuesday, August 9, 2022 4:49 PM
To: Concord City Council Email <[email protected]> Cc: City Clerk <[email protected]>
Subject: PD&IO Committee input for August 16 meeting: Impact of tobacco on young people Concord City Council Members and Staff,
I am concerned, as I am sure you are, about the health and welfare of our young people. I have lived in Concord for 40 years and raised my family here. I want to see our young people grow up in a city that is safe and healthy for them.

A couple years ago I spoke with the city about my concern over the numerous smoke and vape shops being allowed to open all over Concord. Seems Concord has been rubber stamping approval of these sketchy businesses without Council involvement for years now.

That should change.

The extensive review and approval process the Council went through to approve a very small number of Cannabis retail operations should also be done for existing and new smoke and vape shops. They sell dangerous products and should not be located near schools. They need strong security to assure their products are not stolen, and they should be audited regularly (not just once a year) to provide positive assurance they are not selling product to minors. The number of these “businesses” should be strictly limited.

The LGBTQ Minus Tobacco organization has done a great job investigating tobacco use here in Concord. Here are some of their findings which should raise alarm bells:

1. 7 of 19 Concord retailers (37%) visited by the state in 2018 sold tobacco to an underage decoy. In the last five years, Concord averages a 1 in 6 sales rate to underage youth.

2. In 2019-2020, over a quarter (27%) of MDUSD juniors said they had ever tried a vaping device.

3. In 2019-2020, 75% of MDUSD juniors said it was easy to get vapes and 42% of MDUSD juniors said it was easy to get cigarettes.

4. Brick and mortar retailers are a key way that tobacco gets into communities. The California Student Tobacco Survey found that most underage users get tobacco from a physical store, or from a social source (who got it from a store), while online sales are rare.

5. Enforcement by the state is sparse. In the last 5 years, state enforcement made enough visits to go to each tobacco retailer in Concord at most once. During the same period, vapes got massively popular. Routine compliance checks are necessary to ensure that young people can’t buy tobacco from any retailer. A strong tobacco retail license sets aside funds specifically for these checks, suspends licenses for sales to youth and takes licenses away from businesses for repeated violations.

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The nicotine found in flavored tobacco and vape products (and sometimes mixed with THC concentrate) creates lifelong addictions especially in teenagers. On a personal level, I watched my sister-in-law, Laurie, die of lung cancer at the age of 60. She started smoking as a teenager and she could never overcome that addiction. I imagine most of you have some relatives or friends who have experienced similar disastrous health outcomes from various forms of tobacco use.

We need to act now to reduce the harm to young people. Here are some positive actions I am asking you to consider:
• End sale of flavored tobacco
• End sale of vapes
• Set minimum tobacco price and pack size
• End tobacco coupon redemption
• End sale of tobacco in pharmacies
• Limit number/location of retailers
• Establish routine compliance checks
Thank you again for considering this issue. I know you all care deeply about our young people.

Sincerely,
Mike McDermott

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From: Camille Cummings <[email protected]>
Sent: Monday, October 17, 2022 12:54 PM
To: Concord City Council Email <[email protected]>; City Clerk <[email protected]>; Aliano, Dominic <[email protected]>; Hoffmeister, Laura <[email protected]>
Cc: Phillip Gardiner <[email protected]>; Valerie Yerger <[email protected]>; Carol McGruder <[email protected]>; Camille Cummings <[email protected]>; Brian Davis <[email protected]>
Subject: End the Sale of Menthol Cigarettes and all Other Flavored Tobacco Products in Concord! No Exemptions: All Flavors, All Products at All Locations! Dear Mayor Dominic Aliano and Concord City Council Members, Attached is a letter from the African American Tobacco Control Leadership Council strongly encouraging the Concord City Council to end the sale of menthol cigarettes and all flavored tobacco products in the City.

This is no minor matter; lives are at stake.

New research shows that between 1980-2018 menthol cigarettes were responsible for:

1. 1.5 million new African American smokers;

2. 157,000 smoking-related premature deaths among African Americans; and

3. 1.5 million life-years lost among African Americans (Mendez & Le, 2021) (the full article and an accompanying editorial are also attached.) Time is of the essence. We can't wait on the state or the FDA. Concord must act now! Thank you for your leadership.
--
Camille Cummings, Project Coordinator
African American Tobacco Control Leadership Council
Phone: 888.881.6619 ext. 109
https://www.savingblacklives.org/
Benched Correspondence
Agenda Item No. 2.a
October 18, 2022

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October 17, 2022
To: Mayor Dominic Aliano, Vice Mayor Laura Hoffmeister, Councilmember Edi Birsan, Councilmember Tim McGallian, and Councilmember Carlyn Obringer From: The African American Tobacco Control Leadership Council (AATCLC) Re: End the Sale of Menthol Cigarettes and all Other Flavored Tobacco Products in Concord! No Exemptions: All Flavors, All Products at All Locations! The African American Tobacco Control Leadership Council (AATCLC) strongly encourages the Concord City Council to end the sale of menthol Cigarettes and all flavored tobacco products, with no exemptions. We are glad to see that the Council is considering this issue. Frankly, this couldn’t come at a better time. We already know that 80% of youth, 12-17 start smoking using flavored cigarettes (Ambrose et al., 2015). Indeed, in the midst of the ongoing COVID-19 pandemic, nothing could be more important than getting these products out of our community. We already know that smokers are more susceptible to COVID infection (CDC, 2020). If the Council truly wants a healthier Concord, and we believe that you do, then it is imperative that menthol-flavored cigarettes and other flavored tobacco products be prohibited. This will end the predatory marketing of these products that disproportionately impact poorer communities, marginalized groups, youths, and communities of color.

Menthol the Ultimate Candy Flavor; It Helps the Poison Go Down Easier! This is no minor matter. Menthol cigarettes and flavored tobacco products are driving tobacco-related deaths and diseases nationwide. While the use of non-flavored tobacco cigarettes has been decreasing, the use of menthol cigarettes is on the rise, among youth and adults; among Latinos, Blacks, and Whites (Villanti, 2016). Let’s be clear, the majority of women smokers smoke menthol cigarettes; folks from the LGBTQ community disproportionately smoke these products; 47% of Latino smokers prefer menthol cigarettes, with 62% of Puerto Rican smokers using menthol; nearly 80% of Native Hawaiians; a majority of Filipinos; and a majority of smokers with behavioral health issues smoke menthol cigarettes. Frankly, the most marginalized groups disproportionately use these so-called “minty” products (CDC, 2010; Fallin, 2015; Forbes, 2013; Delnevo, 2011; Hawaii State Dept. of Health, 2009; Euromonitor, 2008; Hickman, 2015).

Be appraised that 85% of African American adults and 94% of Black youth who smoke are using menthol products (Giovino, 2013). These striking statistics arise from the predatory 1

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marketing of these products in the Black Community, where there are more advertisements, more lucrative promotions, and most disturbing menthol cigarettes are cheaper in the Black community compared to other communities (Henriksen et al., 2011; Seidenberg et al., 2010).

These predacious practices for the past 50 years have led to Black folks dying disproportionately from heart attacks, lung cancer, strokes, and other tobacco-related diseases (RSG, 2014).

Take note that new research shows that menthol cigarettes were responsible for 1.5 million new smokers, 157,000 smoking-related premature deaths, and 1.5 million life-years lost among African Americans from 1980–2018. While African Americans constitute 12% of the total US population, these figures represent, respectively, a staggering 15%, 41%, and 50% of the total menthol-related harm (Mendez & Le, 2021).

The Council should be aware that menthol is an anesthetic by definition, and as if to add insult to injury, masks the harsh taste of tobacco and allows for deeper inhalation of toxins and greater amounts of nicotine. The greater the nicotine intake, the greater the addiction. Hence, it is no surprise menthol cigarette users find it harder to quit than non-menthol cigarette users (Ton et al., 2015; Levy et al., 2011). The “cool refreshing taste of menthol” heralded by the tobacco industry is just a guise; ultimately, menthol and all flavors allow the poisons in cigarettes and cigarillos “to go down easier!”
Hookah: The Manipulation of Culture for Industry Profits! While we have all become aware of the meteoric rise of E-Cigarette use, especially among kids, another addictive product is growing in popularity: flavored shisha / Hookah. Let’s not be fooled: passing tobacco smoke through water does nothing to stop the user from inhaling all the toxins, nicotine, and cancer-causing chemicals associated with tobacco smoking. Let’s be clear, Hookah is just as deadly as cigarettes, if not more. Studies show that in a single hookah smoking session of 40 minutes, smokers consume 25 times the tar, 125 times the smoke 2.5 times the nicotine, and 10 times the carbon monoxide compared to smoking a cigarette (Primack et al., 2016). Moreover, both patrons and employees at Hookah lounges are exposed to elevated levels of 2nd hand smoke an already recognized cause of cancer (Zhou et al., 2016) Then there is the fiction that Hookah smoking is a 1000-year-old tradition in the Middle East. Look, tobacco only made its way to Europe some 500 years ago and only gradually made its way to the Middle East 3 to 4 hundred years ago. Make no mistake about it, it’s the Hookah Lounge owner’s manipulation of culture argument that is used to attract more business and profits. Flavored shisha like Blue Mist, Irish Kiss, and Sex on the Beach has nothing to do with Middle Eastern Culture. Once it was determined in the 1960s that smoking kills, Islamic Leaders deemed tobacco, Hookah, and Shisha Forbidden. At bottom, Hookah 2

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lounges with their nightclub atmosphere have nothing to do with Middle Eastern Culture, rather it’s all about the Benjamin’s! It’s not about getting rid of all hookahs or all tobacco products, it's about getting rid of all flavors, at all places, in all products, period.

We Can’t Wait on the State or the FDA
The AATCLC is calling upon the City Council of Concord to join a growing number of cities, counties, and states around the country that are prohibiting, jurisdiction-wide, the sales of menthol cigarettes and all other flavored tobacco products. In June 2018, San Francisco voters passed the first-ever citywide restriction on the sales of all flavored tobacco products, including menthol cigarettes and flavored e-cigarette juices. This “strongest flavor ban law ever” was rapidly replicated in numerous cities in California and around the country, including Oakland, Alameda, Hayward, Fremont, Berkeley, and Sacramento, just to mention a few. Just recently, the county of Sacramento, the city of San Jose, Los Angeles, and San Diego have all passed menthol restrictions. Today over 75 municipalities prohibit the sale of all menthol tobacco products including flavored e-juices
no-smoke.org/wp-content/uploads/pdf/flavored-tobacco-product-sales.pdf Indeed, in June of 2020, the State of Massachusetts became the first state to prohibit the sale of menthol cigarettes and all flavored tobacco products state-wide and in August of 2020 California followed suit and became the second state to do so. With the tobacco industry forcing a referendum of SB 793, now Prop 31, it becomes even more imperative that local jurisdictions take steps to protect their citizenry. We can’t wait on the State, let’s take steps to make Concord healthier now! While it is important that the FDA finally began the rulemaking process in April of 2021 to remove menthol cigarettes and flavored little cigars from the marketplace, this process will take years. First, the proposed rule was only made public in April of 2022. And we have just come through a summer where the tobacco industry dragged out the comment period to August of this year. We already know that 100,000’s of comments have been sent to the FDA, the majority of them from the tobacco industry. Once the public comment is over, the “rule” is sent to the Office of Management and Budget (OMB), whose review could take a number of months.

Once a final rule is made public and there is more public comment, the industry will sue to stop the process from going forward. And may sue for numerous reasons. The bottom line is that we can’t wait on the FDA. Cities like Concord must take steps to protect the health of our citizens, lives are at stake.

Who Are the Racists: The Tobacco Control Advocates or the Tobacco Industry? Some groups funded by the tobacco industry insist that removing menthol cigarettes and flavored little cigars would be taking away “our” cigarettes; we’d be discriminatory; racist. This line of argumentation stands history on its head. As was pointed out earlier, it was and is the 3

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tobacco industry that predatorily markets these products in the Black Community. The facts are these: there are more advertisements, more lucrative promotions, and most disturbing is that menthol cigarettes are cheaper in the Black Community compared to other communities (Henriksen et al., 2011; Seidenberg et al., 2010). This is how these flavored death sticks became “our” cigarettes, they pushed them down our throats!
Still, other groups, spurred on and funded by the tobacco industry, have been spreading falsehoods, stating that restricting the sale of menthol cigarettes and flavored tobacco products, including flavored e-juices will lead to the “criminalization” of particularly young Black men.

Nothing could be further from the truth. All ordinances adopted around the country would prohibit the sale of flavored products, it would not prohibit the possession of these products.

The facts are that the adoption of menthol restrictions will not lead to police having any greater interaction with any youth; it won’t be illegal to possess these products, just retailers cannot sell them.

These same groups rail about “unintended consequences.” We respond: Look at the Intended Consequences! As mentioned before, Black folks die disproportionately from tobacco-related diseases of heart disease, lung cancer, and stroke compared to other racial and ethnic groups. (RSG, 2014); menthol cigarettes and flavored little cigars are the agents of that destruction. It is estimated that 45,000 Black folks die each year from tobacco-related diseases (RSG, 1998). In this regard, the Committee should remove all criminal penalties associated with the purchase, use, and possession of all tobacco products. Decriminalize tobacco! Hold retail owners responsible, not clerks, don’t punish kids!
The AATCLC
Formed in 2008, the African American Tobacco Control Leadership Council is composed of a cadre of dedicated community activists, academics, public health advocates, and researchers. Even though based in California, we are national in our scope and reach. We have partnered with community stakeholders, elected officials, and public health agencies, from Chicago, Boston, and Minneapolis to Berkeley and San Francisco. Our work has shaped the national discussion and direction of tobacco control policy, practices, and priorities, especially as they affect the lives of Black Americans, African immigrant populations, and ultimately all smokers. The AATCLC has been at the forefront in elevating the regulation of mentholated and other flavored tobacco products on the national tobacco control agenda, including testifying at the FDA hearings in 2010 and 2011 when the agency was first considering the removal of menthol cigarettes from the marketplace. In November of 2019 we testified on Capitol Hill in support of HR 2339 (The Pallone Bill), this bill would prohibit the manufacturing and sale of 4

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Concord City CouncilJanuary 10, 2023

Concord City Council
January 10, 2023