Dear Cotati Council,
YI M B Y L aw subm its this letter to inform you of your city’ s obligations under California law, pertaining to the m inisterial approval process for developm ent applications such as SB - 35 and ADU developm ent applications. T his letter is intended to help educate the Council during your deliberations on revising your project appeal process, and to assure you there is legal risk, including from this organization, should you fail to adhere to your obligations under the law.
As am ended by SB - 35 ( W ien er , 20 17) , th e Califor n ia Gover n m en t Code § 6 59 13.4 ( c) reads as follows:
( c) Any design review or public oversight of the developm ent m ay be conducted by the local gover nm ent’ s planning com m ission or any equivalent boar d or com m ission r esponsible for review and approval of developm ent projects, or the City Council or board of supervisors, as appropriate. That design review or public oversight shall be objective and be strictly focused on assessing compliance with criteria required for streamlined projects, as well as any reasonable objective design standards published and adopted by ordinance or resolution by a local jurisdiction before submission of a development application, and shall be broadly applicable to development within the jurisdiction. That design review or public oversight shall be completed as follows and shall not in any way inhibit, chill, or preclude the ministerial approval provided by this section or its effect, as applicable[…]
As defin ed by § 10 2( n ) of the Updated Streamlined Ministerial Approval Process Guidelines, published on March 30, 2021 by the California Department of Housing and Community Development (HCD), which are regulatory mandates which “have the dignity of statutes”[Ramirez v. Yosemite Water Co., 20 Cal. 4th 785, 800 (1999)],
“ M inisterial processing” or “ m inisterial approval” m eans a process for developm ent approval involving little or no personal judgm ent by the public official as to the wisdom or m anner of carrying out the project. T he public official m erely ensures that the proposed developm ent m eets all the " objective zoning standards," " objective subdivision standards," and " objective design review standards" in effect at the tim e that the application is subm itted to the local governm ent, but uses no special discretion or judgm ent in reaching a decision.
W hile the legislature perm its a city to designate their City Council as a m inisterial approval body for SB - 35 stream lined applications, doing so brings grave risk of allowing im proper, illegal actions by the Council. Additionally, m inisterially approved projects such as ADU projects are routinely approved by Planning Departm ent staff. W e encourage you to set aside the question of whether the law allows the City Council to act as an im partial, m inisterial approval body, and instead evaluate whether the Council is in a position to be one.
T he Cotati City Council, which, by its very nature, is an elected political body where every decision m ade carries political risk, and is form ed expressly to apply special discretion and judgm ent in m aking decisions,. T o expect elected officials, whose actions carry personal political consequences and who have strong, outspoken positions on m any subjective zoning, design review, and other com m unity standards, to set aside all of their biases, political platform s, and fear of voter retribution, so that they can m ake m inisterial, objective, decisions involving no personal judgm ent or special discretion, asks the im possible.
T he city already has an established m inisterial approval process for project applications which are reviewed at a staff level. T he experience and ex pertise of those bodies, who routinely review project applications for objective standards under a m inisterial approval requirem ent, and are not subject to intense political pressures, should not be replaced by an inexperienced, politically biased, elected City Council. T he Council is not trained or experienced in evaluating projects according to their objective standard criteria, and is incapable of m aking decisions without personal judgm ent as to the wisdom of carrying out the project. I ndeed, the Council is elected specifically to pass personal judgm ent on all m anner of city affairs, including the wisdom of carrying out a project.
Should the city foolishly attem pt to allow the City Council to act as the m inisterial approval body for SB - 35 stream lined project applications, we call your attention to §300(c) of H CD’ s Updated Streamlined Ministerial Approval Process Guidelines:
Determ ination of Consistency
( 1) W hen deter m in ing cons is tency with objective z on in g, s ubdivis ion , or design r eview standards, the local governm ent shall only use those standards that m eet the definition r ef er en ced in S ection 10 2( q) . F or ex am ple, des ign r eview s tan dar ds that r equir e s ubjective decision- m aking, such as consistency with “ neighborhood character,” shall not be applied as an objective standard unless “ neighborhood character” is defined in such a m anner that is non- discretionary.
( 2) A standard that requires a general plan am endm ent, the adoption of a specific plan, planned developm ent zoning, or another discretionary perm it or approval does not constitute an objective standard. A locality shall not require a developm ent proponent to m eet any standard for which the locality typically exercises subjective discretion, on a case- by- case basis.
( 3) M odifications to objective standards granted as part of a density bonus, concession, incentive, parking reduction, or waiver of developm ent standards pursuant to Density B on us L aw Gover n m ent Code s ection 6 59 15, or a local den s ity bon us or din ance, s hall be considered consistent with objective standards.
(4) Project eligibility for a density bonus concession, incentive, parking reduction, or waiver of developm ent standards shall be determ ined consistent with Density Bonus L aw. ( 5) Objective standards m ay include objective land use specifications adopted by a city or county, including, but not lim ited to, the general plan, housing overlay zones, specific plans, inclusionary zoning ordinances, and density bonus ordinances. ( 6 ) I n the event that objective zoning, general plan, subdivision, or design review standards are m utually inconsistent, a developm ent shall be deem ed consistent with the objective standards pursuant to Section 400( c) of these Guidelines if the developm ent is consistent with the standards set forth in the general plan. (A) In no way should this paragraph be used to deem an application ineligible for the Stream lined M inisterial Appr oval P r oces s when the pr oject’ s us e is con s isten t with S ection 4 0 1( a) ( 3). ( 7) Developm ents are only subject to objective zoning standards, objective subdivision standards, and objective design review standards enacted and in effect at the tim e that the application is subm itted to the local governm ent
( 8) Determ ination of consistency with objective standards shall be interpreted and im plem ented in a m anner to afford the fullest possible weight to the interest of, and the approval and provision of, increased housing supply. For exam ple, design review standards or other objective standards that serve to inhibit, chill, or preclude the developm ent of housing under the Stream lined M inisterial Approval Process are inconsistent with the application of state law.
As H CD’ s guidelines m ake abundantly clear, the City Council cannot use discretion in any way while evaluating a project’ s consistency with the zoning ordinance and/or General Plan standard. I f the Council is allowed to act as the m inisterial approval body for an SB - 35 stream lined developm ent application, they m ust set aside every instinct that serves them well as elected officials in order to m eet the standard for m inisterial approval under the law.
W e im plore the City of Cotati to not im peril the Council’ s legal responsibilities by being allowed to serve as the approval body for any stream lined or m inisterial developm ent application. T his course of action is a plan to fail. I f allowed the discretion to review projects required to be approved m inisterially, it is alm ost certain that the City Council will fail to follow the law, and Cotati will suffer a pointless, em barrassing and expensive lawsuit. W hy is the City Council interested in serving as the approval body, if not to prevent the planning staff from following the law? Please use your discretion, and good judgm ent, by following the norm al, custom ary practice of allowing staff to serve in this capacity, and do not allow politics to im peril your city.
Yim by L aw is a 50 1( c) 3 n on- profit corporation, whose m ission is to increase the accessibility and affordability of housing in California.
Rafa Sonnenfeld he/him
Director of Legal Advocacy