AGENDA
LAKE FOREST CITY COUNCIL
Regular Meeting of the City Council
Tuesday, July 16, 2024
Public Session 6:30 p.m.
City Council Chambers, 100 Civic Center Drive, Lake Forest, California NOTICE: Pursuant to Lake Forest Municipal Code Section 2.04.010, Regular Meetings of the City Council are held the First and Third Tuesday of each month at the hour of 5:30 p.m. for Closed Session matters, if required.
The Public Session of the meeting shall commence at 6:30 p.m. or as soon thereafter as possible. Special Meeting times may be held at a different time and date as listed on the Agenda.
AGENDA DOCUMENT REVIEW: The Agenda and staff reports are available on the Internet at https://www.lakeforestca.gov/en/government/meeting-agendas-and-minutes/meeting-agendas and at the City Clerk’s Office, 100 Civic Center Drive, Lake Forest, California, on the Friday before the meeting on Tuesday.
AGENDA DESCRIPTION: The Agenda descriptions are intended to give notice to members of the public of a general summary of items of business to be transacted or discussed. The listed Recommended Action represents staff’s recommendation. The City Council may take any action which it deems to be appropriate on the agenda item and is not limited in any way by the recommended action.
AGENDA ON SOCIAL MEDIA: This meeting will be streamed through Facebook Live. Comments will not be taken via Facebook Live. The City provides the Facebook Live stream as an additional service to the public.
However, the City cannot guarantee that its network and/or the site will be uninterrupted. The City is not responsible for any interrupted service.
SPECIAL NOTICE REGARDING PUBLIC ACCESS TO THE MEETING AND PUBLIC COMMENT:
PUBLIC PARTICIPATION: In addition to attending in person, members of the public may access the meeting live on our website at https://www.lakeforestca.gov/en/government/meeting-agendas-and-minutes/meeting-agendas.
PUBLIC COMMENT PRIOR TO THE MEETING: Members of the public may submit email comments to [email protected]. Email comments will be uploaded to the agenda packet and made part of the official public record of the meeting and will not be read at the meeting. To ensure staff reviews all comments prior to the City Council meeting, please submit email comments no later than 5:00 p.m. the day of the meeting.
PUBLIC COMMENT: Members of the public may provide comments in-person at the meeting. Public comments will no longer be accepted remotely. Those wishing to provide comments in-person at the meeting will be asked to submit a request to speak to the City Clerk. To ensure prompt distribution to the City Council, members of the public wishing to provide written materials to the City Council should do so prior to the start of the meeting or as close thereto as possible, as time will not be taken during the public comment period to distribute written materials to the City Council.
TRANSLATION SERVICE: Interpreters are available by request to members of the public that prefer to make their public comments in Spanish or Chinese. Requests for a translator need to be received by 8:00 a.m. the Monday before the scheduled City Council meeting. Such requests must be received via email at [email protected]
July 16, 2024 LAKE FOREST CITY COUNCIL AGENDA Page 1
Los intérpretes están disponibles previa solicitud para el público que prefiera hacer sus comentarios públicos en español o chino. Las solicitudes de traductor deben recibirse antes de las 8:00 a. m. del lunes anterior a la reunión programada del Concejo Municipal. Dichas solicitudes deben recibirse por correo electrónico a [email protected]
如果大眾願意用西班牙語或中文發表公開評論，我們可應要求提供口譯服務。需要在預定市議會會議之前的周一
上午 8:00 之前收到翻譯請求。此類請求必須透過電子郵件收到：[email protected] Rúguǒ dàzhòng yuànyì yòng xībānyá yǔ huò zhōngwén fābiǎo gōngkāi pínglùn, wǒmen kě yīng yāoqiú tígōng k ǒuyì fúwù. Xūyào zài yùdìng shì yìhuì huìyì zhīqián de zhōuyī shàngwǔ 8:00 Zhīqián shōu dào fānyì qǐngqiú. Cǐ l èi qǐngqiú bìxū tòuguò diànzǐ yóujiàn shōu dào: [email protected] CALL TO ORDER:
Council Members:
Mayor Pro Tem:
Mayor:
Assistant City Manager:
City Attorney:
City Clerk:
6:30 p.m.
Doug Cirbo
Robert Pequeño
Benjamin Yu
Scott Voigts
Mark Tettemer
Keith Neves
Matthew E. Richardson
Lisa Berglund
PUBLIC SESSION: 6:30 p.m.
PUBLIC SESSION: At this time, the City Council will convene to consider public matters. Those wishing to address the City Council must submit a completed “Request to Speak” form to the City Clerk prior to City Council action.
INVOCATION: The Invocation will be provided by Community Outreach Pastor Laura Lepire, Saddleback Church.
PLEDGE OF ALLEGIANCE: The Pledge of Allegiance to the Flag of our Country to be led by Girl Scout Troops #8621 and #2519.
PRESENTATIONS (Item Nos. 1 – 3)
1. NEW EMPLOYEE INTRODUCTIONS
July 16, 2024 LAKE FOREST CITY COUNCIL AGENDA Page 2
RECOMMENDED ACTION: Receive and file.
2. RECOGNITION OF VOLUNTEERS IN PARKS PROGRAM
PARTICIPANTS
RECOMMENDED ACTION: Recognize the volunteers who performed quarterly park inspections for the Volunteer in Parks ("VIP") Program for Fiscal Year 2023-2024
3. TASTE OF LAKE FOREST RETURNED
RECOMMENDED ACTION: 1. Receive and file the 2024 Taste of Lake Forest presentation. 2. Recognize sponsors and volunteers with certificates.
PUBLIC COMMENTS
Members of the public can submit an e-comment to [email protected]. E-comments will not be read at the meeting.
Members of the public may also provide comments in-person at the meeting or remotely. Those wishing to provide comments inperson at the meeting will be asked to submit a request to speak to the City Clerk.
CONSENT CALENDAR (Item Nos. 4 – 10)
All matters listed under the Consent Calendar are considered routine and will be enacted by one vote. There will be no separate discussion of these items unless Members of the City Council, the public, or staff request specific items be removed from the Consent Calendar for separate action.
4. MOTION TO WAIVE READING OF RESOLUTIONS AND ORDINANCES RECOMMENDED ACTION: Said Ordinances and Resolutions which appear on the public agenda shall be determined to have been read by title and further reading waived.
July 16, 2024 LAKE FOREST CITY COUNCIL AGENDA Page 3
5. MINUTES OF THE REGULAR MEETING OF THE CITY COUNCIL HELD ON JULY 2, 2024
RECOMMENDED ACTION: Approve as submitted.
6. SECOND READING OF ORDINANCE REGARDING AMENDMENTS TO
LAKE FOREST MUNICIPAL CODE CHAPTER 5.17 CONCERNING
SIDEWALK VENDING REGULATIONS
RECOMMENDED ACTION: Conduct the second reading of and adopt an Ordinance entitled: AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF LAKE FOREST, CALIFORNIA, AMENDING CHAPTER 5.17 OF TITLE 5 OF THE LAKE FOREST MUNICIPAL CODE, RELATING TO
SIDEWALK VENDING AND FINDING THE ACTION TO BE EXEMPT
FROM THE CALIFORNIA ENVIRONMENTAL QUALITY ACT.
7. AWARD OF CONTRACT FOR PAVEMENT MANAGEMENT PLAN
UPDATE PROFESSIONAL SERVICES
RECOMMENDED ACTION: 1. Award a Professional Consultant Services Agreement with a compensation amount of $249,000 to Nichols Consulting Engineers for Pavement Management Plan Update Services. 2. Authorize the Mayor to sign, and the City Clerk to attest, the award of contract to Nichols Consulting Engineers.
8. AWARD CONSTRUCTION CONTRACT FOR ROCKFIELD BOULEVARD
MEDIAN IMPROVEMENT PROJECT (24S09)
RECOMMENDED ACTION: 1. Approve contract documents for
construction of the Rockfield Boulevard Median Improvement Project (24S09). 2. Adopt a Resolution entitled, “ A RESOLUTION OF THE CITY
COUNCIL OF THE CITY OF LAKE FOREST, CALIFORNIA, AMENDING THE 2023-2030 CAPITAL IMPROVEMENT PLAN; AMENDING
APPROPRIATIONS FOR FISCAL YEAR 2024-25.” 3. Award a contract in the amount of $244,426 to IE General Engineering, Inc. 4. Authorize the Mayor to sign, and the City Clerk to attest the contract with IE General Engineering, Inc. 5. Reject all other bids received and authorize return of July 16, 2024 LAKE FOREST CITY COUNCIL AGENDA Page 4
the bid bonds upon receipt of the executed contract documents from IE General Engineering, Inc.
9. AWARD CONSTRUCTION CONTRACT FOR SLURRY SEAL PROJECT
FOR ARTERIAL STREETS: MUIRLANDS BLVD. FROM BAKE PARKWAY TO LOS ALISOS BLVD. AND JERONIMO ROAD FROM BAKE PARKWAY TO LOS ALISOS BLVD. (PW 2021-05B)
RECOMMENDED ACTION: 1. Approve contract documents for construction of Slurry Seal Project for Arterial Streets: Muirlands Boulevard from Bake Parkway to Los Alisos Boulevard and Jeronimo Road from Bake Parkway to Los Alisos Boulevard PW 2021-05B. 2. Award a Construction Contract in the amount of $1,758,120 to VSS International, Inc. 3. Authorize the Mayor to sign, and the City Clerk to attest the contract with VSS International, Inc.
4. Reject all other bids received and authorize return of the bid bonds upon receipt of the executed contract documents from VSS International, Inc.
10. CONSIDER OPTING INTO A NATIONAL OPIOID SETTLEMENT
AGREEMENT WITH KROGER
RECOMMENDED ACTION: 1. Opt into the settlement agreement with Kroger and allocate the City’s portion of the settlement funds to the County of Orange, and direct the City Manager to execute any documents necessary to implement the action. 2. Grant the City Manager authority to execute and enter into future agreements related to the nation-wide opioid settlements.
DISCUSSION/ACTION ITEMS (Item Nos. 11 – 14)
The following matters are for City Council consideration/discussion/action. Members of the public may have the opportunity to address these items if they wish to do so. Please complete the Request to Speak form and give to the City Clerk.
11. OPTIONS FOR EXPANSION OF HOLIDAY LIGHTING DISPLAY
RECOMMENDED ACTION: 1. Receive and file a presentation from staff giving an update on expanded holiday lighting options. 2. Direct staff to investigate the costs considering alternative medians to illuminate and to July 16, 2024 LAKE FOREST CITY COUNCIL AGENDA Page 5
provide an update to the City Council prior to the second and final one-year term extension of the Brightlife Designs, Inc. contract.
12. HOMELESSNESS, DRUG ADDICTION, AND THEFT REDUCTION ACT RECOMMENDED ACTION: Exercise Discretion in Adopting a Resolution Entitled: A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF LAKE
FOREST, CALIFORNIA TO SUPPORT CALIFORNIA INITIATIVE
#23-0017A1.
13. LEGISLATIVE AND REGULATORY MATTERS
RECOMMENDED ACTION: 1. Receive and file a report summarizing legislative and regulatory matters with the potential to impact the City of Lake Forest. 2. Adopt the policy positions recommended by staff on various legislation with the potential to impact the City of Lake Forest.
14. STRATEGIC PLAN QUARTERLY UPDATE
RECOMMENDED ACTION: Receive and file.
ASSISTANT CITY MANAGER'S REPORT
At this time, the Assistant City Manager may comment on agenda and non-agenda items; and report on items of interest to the City Council and community.
July 16, 2024 LAKE FOREST CITY COUNCIL AGENDA Page 6
Mayor Pro Tem Voigts:
Mayor Tettemer:
July 16, 2024 LAKE FOREST CITY COUNCIL AGENDA Page 7
CITY COUNCIL COMMENTS
At this time, City Council Members may comment on agenda or non-agenda matters. No discussion may take place on any item not appearing on the posted agenda. Council Members may ask a question for clarification, respond to statements made or questions posed by the public, make a brief announcement, or make a brief report on his or her own activities. In addition, the City Council may refer to staff or other resources for factual information, request staff to report back at a subsequent meeting or direct staff to place a matter of business on a future agenda. No action may be taken on non-agenda matters unless authorized by law (Government Code Section 54954.2).
Council Member Cirbo:
Council Member Pequeño:
Council Member Yu:
ADJOURNMENT
In compliance with the Americans With Disabilities Act, if you need special assistance to participate in this Meeting, including auxiliary aids or services, you should contact the Office of the City Clerk at (949) 461-3400.
Notification 48 hours prior to the Meeting will enable the City to make reasonable arrangements to assure accessibility to this meeting. The City Council agenda and agenda back-up materials can be obtained from the Office of the City Clerk on the Friday prior to the City Council meeting. Copies of all Agendas, Staff Reports and Supporting Materials can also be found on the City’s website – https://www.lakeforestca.gov/129/Agendas.
Agenda and agenda packets, if requested, will be made available in an appropriate alternative format to persons with a disability as required by the Americans With Disabilities Act. Copies of the agenda are provided at no cost and agenda back-up materials are available at the per page copy cost.
The City of Lake Forest mailing address is City Council Chambers, 100 Civic Center Drive, Lake Forest, California.
Phone: (949) 461-3400. FAX (949) 461-3511
CERTIFICATION: I, Thy Merritt, Assistant City Clerk of the City of Lake Forest, California, hereby certify that the foregoing agenda was posted for public review at City Hall on July 11, 2024.
Thy Merritt
Assistant City Clerk
July 16, 2024 LAKE FOREST CITY COUNCIL AGENDA Page 8
CITY COUNCIL AGENDA REPORT
MEETING DATE: 7/16/2024
DEPARTMENT: City Manager
SUBJECT:
NEW EMPLOYEE INTRODUCTIONS
RECOMMENDED ACTION(S):
Receive and file.
EXECUTIVE SUMMARY:
Amy Smith – Executive Assistant, City Manager’s Office
Amy joined the City as the Executive Assistant to the City Manager in April. She joined the City coming from the Orange County Fire Authority, where she was a field Administrative Assistant working for a Division Chief. With over 20 years of experience working in the fire service, Amy is excited to bring her expertise and enthusiasm to the realm of city government. In her time off the clock, Amy enjoys travel, music, and extremely challenging crossword puzzles.
Marc Lafuente – Records Coordinator, City Clerk’s Office Marc, a recent college graduate from Cal State Long Beach with a bachelor’s degree in marketing, is joining the City of Lake Forest as a full-time Records Coordinator in the City Clerk’s Office. Transitioning into a full-time staff member, Marc began working for the City in 2019, initially as a Recreation Leader for Community Services. He then advanced to the role of Recreation Coordinator, where he was responsible for organizing events such as the Spooktacular, Breakfast with Santa, Campout, and more. Now, Marc is expanding his knowledge in municipal governance, aiming to respond to the public effectively and efficiently.
FISCAL IMPACT:
There is no fiscal impact associated with the recommended action.
ATTACHMENTS:
Item: 1
9 None.
Initiated By: Nidia Ruelas, Assistant to the City Manager Submitted By: Keith Neves, Assistant City Manager
Approved By: Keith Neves, Assistant City Manager
Item: 1
10 CITY COUNCIL AGENDA REPORT
MEETING DATE: 7/16/2024
DEPARTMENT: Public Works
SUBJECT:
RECOGNITION OF VOLUNTEERS IN PARKS PROGRAM PARTICIPANTS RECOMMENDED ACTION(S):
Recognize the volunteers who performed quarterly park inspections for the Volunteer in Parks ("VIP") Program for Fiscal Year 2023-2024 EXECUTIVE SUMMARY:
The Volunteer in Parks ("VIP") program currently has 17 volunteers inspecting City parks, with some volunteers inspecting more than one park. Each volunteer provides reports via their mobile phones. When a volunteer comes across issues at the park, the volunteers provide photos by email or call staff directly to have the issues addressed.
Staff hosted a meeting in January 2024 for the VIP’s wherein Vector Control provided a presentation on mosquitos, fire ants, and park treatments. Attached is the list of VIP program participants (Attachment 1) for Fiscal Year 2023-2024 and a sample certificate (Attachment 2). Staff would like to thank all our volunteers for another successful program year. Staff recommends that the City Council recognize the dedicated volunteers in the Volunteer in Parks ("VIP") program for Fiscal Year 2023-2024.
FISCAL IMPACT:
There is minimal fiscal impact associated with the recommended action.
ATTACHMENTS:
1. Volunteers in Parks Participation List
2. Sample Certificate
Initiated By: Peggy Samantha, Management Assistant
Submitted By: Thomas E. Wheeler, P.E., Director of Public Works/City Engineer Approved By: Debra Rose, City Manager
Item: 2
11 Attachment 1
Item: 2
12 Volunteers in Parks Participants
David Antenesse
Debbie Antenesse
Larry Arthur
Derek Barraza
Sean Fletcher
Dianne Hanks
Loretta Herrin
Rich Hobson
Jean Kulla
Alan Phillips
Mark Ryan
Suzanne Ryan
Sue Rees
Parker Stebel
Alexsis Veal
Huy Vuong
John Wirth
Item: 2
13 Attachment 2
Item: 2
14 CERTIFICATE OF RECOGNITION
THE LAKE FOREST CITY COUNCIL
HEREBY RECOGNIZES
Participant
Volunteers in Parks Program
2023-2024
The City Council and City of Lake Forest
appreciates your dedication and valuable contribution to the preservation of our parks.
July 16, 2024
________________________
MARK TETTEMER
MAYOR
________________________
SCOTT VOIGTS
MAYOR PRO TEM
_________________________
DOUG CIRBO
COUNCIL MEMBER
________________________
ROBERT PEQUEÑO
COUNCIL MEMBER
________________________
BENJAMIN YU
COUNCIL MEMBER
Item: 2
15 CITY COUNCIL AGENDA REPORT
MEETING DATE: 7/16/2024
DEPARTMENT: City Manager
SUBJECT:
TASTE OF LAKE FOREST RETURNED
RECOMMENDED ACTION(S):
1. Receive and file the 2024 Taste of Lake Forest presentation
2. Recognize sponsors and volunteers with certificates
EXECUTIVE SUMMARY:
The Taste of Lake Forest (“Taste”) is an annual event hosted since 2011 in collaboration with the Lake Forest Chamber of Commerce (“Chamber”). The event provides a platform for local restaurants to showcase their culinary offerings, fostering community engagement and celebrating the diverse flavors of Lake Forest's dining scene. Historically, the event has been hosted in the Foothill Ranch Towne Center parking lot. The 2024 event, cohosted by the Chamber and sponsored by Orange County (“OC”) Supervisor Donald P. Wagner and OC Parks, returned on Friday, June 21, at Heritage Hill Historical Park, from 4:30 to 8:00 p.m.
The event sold out with over 1,000 people in attendance. Tickets were available exclusively to individuals aged 18 and up and were priced at $40 per person when bought on the event’s webpage. Attendees were able to enjoy a range of experiences, including sampling dishes from 28 local restaurants, a beer and wine garden, and live music from 90s Rockshow.
The event also included opportunity drawings, a silent auction, announcements by the Mayor, and an awards ceremony in which all restaurants were invited to take pictures on the stage. Attendees were encouraged to vote for their favorite “taste” throughout the event and at the awards ceremony the following restaurants were recognized: Urban Grill and Wine Bar won the “Best of Taste of Lake Forest”, Board & Brew and A Little Something Sweet tied for 2nd place, and Bravo Avo Mediterranean Greek Cuisine won the 3rd place trophy. After a hiatus since 2019, the event’s return was met with positive comments from both attendees and participating restaurants.
Item: 3
16 FISCAL IMPACT:
There is no fiscal impact associated with the recommended item.
ATTACHMENTS:
None.
Initiated By: Hope Hairrell, Management Assistant
Submitted By: Keith Neves, Assistant City Manager
Approved By: Keith Neves, Assistant City Manager
Item: 3
17 CITY COUNCIL AGENDA REPORT
MEETING DATE: 7/16/2024
DEPARTMENT: City Clerk
SUBJECT:
MOTION TO WAIVE READING OF RESOLUTIONS AND ORDINANCES
RECOMMENDED ACTION(S):
Said Ordinances and Resolutions which appear on the public agenda shall be determined to have been read by title and further reading waived.
EXECUTIVE SUMMARY:
California Government Code 36934 allows titles of ordinances and resolutions to be waived.
FISCAL IMPACT:
There is minimal fiscal impact associated with the recommended action.
ATTACHMENTS:
None.
Submitted By: Lisa Berglund, MPA, City Clerk
Approved By: Debra Rose, City Manager
14 Item: 4
18 MINUTES OF A REGULAR MEETING
OF THE CITY COUNCIL OF THE CITY OF LAKE FOREST
The regular meeting of the City Council of the City of Lake Forest held Tuesday, July 2, 2024, at the Lake Forest City Council Chambers, 100 Civic Center Drive, Lake Forest, California, was called to order at 6:30 p.m. with all members present.
ROLL CALL: Council Members: Doug Cirbo
Robert Pequeño
Benjamin Yu
Mayor Pro Tem: Scott Voigts
Mayor: Mark Tettemer
City Manager: Debra Rose
City Attorney: Matthew E. Richardson
City Clerk: Lisa Berglund
INVOCATION: The Invocation was provided by Philip Porter, Lake Forest Ward of the Church of Jesus Christ of Latter-day Saints.
PLEDGE OF ALLEGIANCE: The Pledge of Allegiance to the Flag of our Country was led by Girl Scout Troop #8621.
PUBLIC COMMENTS:
Janet Choi expressed interest in communicating with the Code Enforcement Division regarding an open case for her residence.
Andrew O’Connor expressed concerns with communicating with Mayor Tettemer regarding the Kidder Mathews contract, repair of Performing Arts Center doors, and travel reimbursement for Council Member Yu’s trip to Sacramento.
Marcel Louis XIV expressed concerns with the annual contract between the Orange County Sheriff’s Department and the City and the discussion at the June 18, 2024 City Council Meeting regarding the unsuccessful proposer for the new solid waste and recycling services franchise.
Steve Arnett expressed concerns with construction by Baldwin and Sons and the preservation of views for homes along Malabar Road in Portola Hills.
CONSENT CALENDAR: (Item Nos. 1 – 5)
Item Nos. 2 and 5 were pulled for discussion.
MOTION: It was moved by Mayor Pro Tem Voigts, seconded by Council Member Yu, to approve Consent Calendar Item Nos. 1, and 3 – 4. The motion was carried by a vote of 5/0.
Item: 5
19 July 2, 2024 LAKE FOREST CITY COUNCIL MEETING MINUTES Page 2 of 5
1. MOTION TO WAIVE READING OF RESOLUTIONS AND ORDINANCES ACTION: Said Ordinances and Resolutions which appeared on the public agenda were determined to have been read by title and further reading was waived.
3. PROCLAMATION SUPPORTING WILDFIRE AWARENESS AND
PREVENTION SEASON
ACTION: A proclamation supporting designating mid-summer through early Autumn as Wildfire Awareness and Prevention Season was approved.
4. SECOND READING AND ADOPTION OF ORDINANCE AMENDING TITLE 12
OF THE LAKE FOREST MUNICIPAL CODE RELATING TO THE ENACTMENT
OF A SEPARATE SCHEDULE OF FINES FOR PARKING VIOLATIONS
ACTION: Second reading was conducted and an Ordinance entitled: AN
ORDINANCE OF THE CITY COUNCIL OF THE CITY OF LAKE FOREST, CALIFORNIA, AMENDING CHAPTER 12.16 OF TITLE 12 OF THE LAKE
FOREST MUNICIPAL CODE, RELATING TO THE ENACTMENT OF A
SEPARATE SCHEDULE OF FINES FOR PARKING VIOLATIONS was adopted.
ITEMS PULLED FOR DISCUSSION: (Item Nos. 2 and 5)
MOTION: It was moved by Council Member Pequeño, seconded by Council Member Yu, to approve Consent Calendar Item Nos. 2 and 5. The motion was carried by a vote of 5/0.
2. MINUTES OF THE REGULAR MEETING OF THE CITY COUNCIL HELD ON JUNE 18, 2024
Andrew O’Connor offered public comment and expressed concerns with City Manager Rose.
ACTION: Approved as submitted.
5. AWARD OF PROFESSIONAL SERVICES AGREEMENT FOR STATE
LOBBYING SERVICES
Andrew O’Connor offered public comment and expressed concerns with the costs of the agreement.
ACTION: 1. A Professional Consultant Service Agreement was awarded to Joe A. Gonsalves & Son for State Lobbying Services. 2. The Mayor was authorized to sign and the City Clerk to attest to the Agreement with Joe A. Gonsalves & Son, substantially in the form attached.
Item: 5
20 July 2, 2024 LAKE FOREST CITY COUNCIL MEETING MINUTES Page 3 of 5 DISCUSSION/ACTION ITEMS: (Item Nos. 6 – 9)
6. PURCHASE AND SALE AGREEMENT(S) WITH SOUTH COUNTY OUTREACH REGARDING REAL PROPERTY LOCATED AT 20702 EL TORO ROAD #35
AND DECLARATION OF EXEMPT SURPLUS LAND REGARDING THE SAME PURSUANT TO GOVERNMENT CODE SECTION 54221
City Manager Rose introduced this item and invited Economic Development/Housing Manager Grijalva to provide a presentation. Andrew O’Connor offered public comment and expressed concerns with the agreement.
Marcel Louis XIV offered public comment and expressed concerns with the agreement. Council questions were asked and answered.
MOTION: It was moved by Council Member Pequeño, seconded by Council Member Yu, to: 1. Adopt a Resolution entitled: A RESOLUTION OF THE CITY
COUNCIL OF THE CITY OF LAKE FOREST APPROVING A PURCHASE AND SALE AGREEMENT WITH SOUTH COUNTY OUTREACH REGARDING 20702 EL TORO ROAD #35 (APN 938-741-79) AND FINDING THAT THE ACTION IS EXEMPT FROM THE CALIFORNIA ENVIRONMENTAL QUALITY ACT; and
2. Approve and authorize the City Manager to sign the letter agreement in substantially similar form to the version attached, which acknowledges conformance with the terms of the Community Development Block Grant loan agreement between the City and South County Outreach; and 3. Adopt a Resolution entitled: A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF LAKE FOREST PURSUANT TO GOVERNMENT CODE SECTION 54221
DECLARING THAT CERTAIN REAL PROPERTY LOCATED AT 20702 EL TORO ROAD #35 (APN 938-741-79) IS EXEMPT SURPLUS LAND, AND
FINDING THAT SUCH DECLARATION IS EXEMPT FROM THE CALIFORNIA ENVIRONMENTAL QUALITY ACT; and 4. Adopt a Resolution entitled: A
RESOLUTION OF THE CITY COUNCIL OF THE CITY OF LAKE FOREST
APPROVING A PURCHASE AND SALE AGREEMENT WITH SOUTH COUNTY OUTREACH REGARDING 20702 EL TORO ROAD #35 (APN 938-741-79) AND
FINDING THAT THE ACTION IS EXEMPT FROM THE CALIFORNIA
ENVIRONMENTAL QUALITY ACT; and 5. Authorize the City Manager or her designee to perform any additional acts necessary to complete the above transactions. The motion was carried by a vote of 5/0.
7. ORDINANCE REGARDING AMENDMENTS TO LAKE FOREST MUNICIPAL CODE CHAPTER 5.17 CONCERNING SIDEWALK VENDING REGULATIONS City Manager Rose introduced this item and invited Assistant Director of Community Development Stonich to provide a presentation. Bob Holtzclaw offered public comment and expressed concerns with the City’s ability to address private property maintenance. Council questions were asked and answered.
Item: 5
21 July 2, 2024 LAKE FOREST CITY COUNCIL MEETING MINUTES Page 4 of 5 MOTION: It was moved by Council Member Pequeño, seconded by Council Member Yu, to introduce the first reading of an Ordinance entitled: AN
ORDINANCE OF THE CITY COUNCIL OF THE CITY OF LAKE FOREST, CALIFORNIA, AMENDING CHAPTER 5.17 OF THE LAKE FOREST
MUNICIPAL CODE, RELATING TO SIDEWALK VENDING AND FINDING THE
ACTION TO BE EXEMPT FROM THE CALIFORNIA ENVIRONMENTAL
QUALITY ACT. The motion was carried by a vote of 5/0.
8. CITY COUNCIL WRITTEN COMMUNICATIONS POLICY
City Manager Rose introduced this item and invited City Clerk Berglund to provide a presentation. Marcel Louis XIV offered public comment and expressed concerns with including a photo on individual council letterhead. Council questions were asked and answered.
Council Member Pequeño made a motion to reduce the number of mass mailers from 199 to 50, and not include photos on individual council letterhead. Mayor Pro Tem Voigts made a friendly amendment to reduce the number of mass mailers to 49. Mayor Tettemer made a friendly amendment to further reduce the number of mass mailers to 29.
MOTION: It was moved by Mayor Tettemer, seconded by Council Member Pequeño, to adopt revisions recommended by staff but remove Section 1.7, and allow staff to revise Section 3 in accordance with Council’s recommendations.
The motion was carried by a vote of 5/0.
9. POTENTIAL PERFORMANCE OF THE PACIFIC SYMPHONY
City Manager Rose introduced this item and invited Recreation Manager Hunter to provide a presentation. John Forsyte offered public comment in favor of the Pacific Symphony. Council questions were asked and answered.
MOTION: It was moved by Mayor Pro Tem Voigts, seconded by Council Member Yu, to: 1. Direct staff to produce the Pacific Symphony event on August 17, 2024, authorizing the City Manager to execute any contract documents with the Pacific Symphony related to the event. 2. Adopt a Resolution entitled: A
RESOLUTION OF THE CITY COUNCIL OF THE CITY OF LAKE FOREST, CALIFORNIA, AMENDING THE 2023-2025 OPERATING BUDGET;
AMENDING APPROPRIATIONS FOR FISCAL YEAR 2024-25. The motion was carried by a vote of 5/0.
CITY MANAGER'S REPORT: City Manager Rose informed the Council that volunteers for the Taste of Lake Forest event will be recognized at the next City Council meeting.
CITY COUNCIL COMMENTS:
Council Member Cirbo: Council Member Cirbo reported on his attendance at Item: 5
22 July 2, 2024 LAKE FOREST CITY COUNCIL MEETING MINUTES Page 5 of 5 the Taste of Lake Forest event and the Concert in the
Park. He reminded everyone of the 25th Anniversary of
the Marine Corp Base Closing event scheduled for
July 10 at the Performing Arts Center.
Council Member Pequeño: Council Member Pequeño thanked staff for their hard work. He reported on his attendance at the Taste of
Lake Forest event, Orange County Fire Authority
graduation ceremony, a public safety meeting, a tour
of the Orange County Sheriff’s Department’s Real
Time Operations Center, the Concert in the Park, the
Party of 5 Mixer, the grand opening for Fauna
Veterinary Collective. He reminded everyone of the
25th Anniversary of the Marine Corp Base Closing
event scheduled for July 10 at the Performing Arts
Center and of the 4th of July parade event.
Council Member Yu: Council Member Yu reported on his attendance at the grand opening of the Fauna Veterinary Collective and
the Taste of Lake Forest event. He wished everyone a
Happy 4th of July.
Mayor Pro Tem Voigts: Mayor Pro Tem Voigts reported on his attendance at the Concert in the Park and the Taste of Lake Forest
event and added that Heritage Hill Park was a gem in
the City. He thanked staff and volunteers for their hard work at the Taste of Lake Forest event.
Mayor Tettemer: Mayor Tettemer reported on his attendance at the Taste of Lake Forest event. He expressed interest in
writing a letter of thanks to county agencies that
partnered with the City on the Taste of Lake Forest
event.
ADJOURNMENT: The Regular Meeting of the City Council was adjourned at 8:18 p.m.
Respectfully submitted: APPROVED:
LISA BERGLUND MARK TETTEMER
CITY CLERK MAYOR
Item: 5
23 CITY COUNCIL AGENDA REPORT
MEETING DATE: 7/16/2024
DEPARTMENT: City Clerk
SUBJECT:
SECOND READING OF ORDINANCE REGARDING AMENDMENTS TO LAKE FOREST MUNICIPAL CODE CHAPTER 5.17 CONCERNING SIDEWALK
VENDING REGULATIONS
RECOMMENDED ACTION(S):
Conduct the second reading of and adopt an Ordinance entitled: AN
ORDINANCE OF THE CITY COUNCIL OF THE CITY OF LAKE FOREST, CALIFORNIA, AMENDING CHAPTER 5.17 OF TITLE 5 OF THE LAKE FOREST
MUNICIPAL CODE, RELATING TO SIDEWALK VENDING AND FINDING THE
ACTION TO BE EXEMPT FROM THE CALIFORNIA ENVIRONMENTAL
QUALITY ACT.
EXECUTIVE SUMMARY:
Since January 1, 2019, sidewalk vending has been decriminalized throughout California. Soon after, the City created a program with rules and regulations consistent with state law. This program, the Sidewalk Vending Program, imposed reasonable requirements on sidewalk vendors, including obtaining a City vending permit, procuring insurance and indemnification, and limiting operations in certain areas, such as at major intersections and farmer’s markets.
Despite these standards, the City has seen a rise in unpermitted sidewalk vending and activities that pose unique risks to the health and safety of the public. To address these issues, the proposed Ordinance would amend the Sidewalk Vending Program to give the City the authority to impound vending equipment that poses an imminent environmental, health, or safety hazard. City officials would be authorized to impound sidewalk vending carts, food, cooking equipment, utensils, goods, or merchandise for the reasons listed in the proposed Ordinance. These measures are not criminal in nature and are intended to complement the County agencies, such as the Orange County Health Care Agency (“OCHCA”), which can already impound items on the City’s behalf.
Further, a sidewalk vendor will have the right to appeal an impoundment action and/or retrieve the impounded items, except for perishable items and items the City could not safely store.
Item: 6
24 The proposed Ordinance was introduced for first reading at the July 2, 2024, City Council meeting. The amended Sidewalk Vending Program will take effect on August 15, 2024. Staff recommends the City Council conduct the second reading of and adopt the proposed Ordinance.
FISCAL IMPACT:
There is a minimal fiscal impact to the City associated with the recommended action. Pending City Council approval of the Ordinance, an impound fee and appeal fee will be established by separate resolution to address the cost of storing impounded items and processing appeals to impoundment actions.
ATTACHMENTS:
Proposed Ordinance
Initiated By: Thy Merritt, Assistant City Clerk
Submitted By: Lisa Berglund, City Clerk
Approved By: Debra Rose, City Manager
Item: 6
25 -1-
ATTACHMENT
Item: 6
26 -2-
ORDINANCE NO. __
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF
LAKE FOREST CALIFORNIA AMENDING CHAPTER 5.17 OF
TITLE 5 OF THE LAKE FOREST MUNICIPAL CODE,
RELATING TO SIDEWALK VENDING AND FINDING THE
ACTION TO BE EXEMPT FROM THE CALIFORNIA
ENVIRONMENTAL QUALITY ACT
WHEREAS, the City of Lake Forest, California (“City”) is a municipal corporation, duly organized under the California Constitution and laws of the State of California; and WHEREAS, California Senate Bill 946, also known as the California Safe Sidewalk Vending Act (“SB 946”), which passed into law and became effective on January 1, 2019, decriminalized sidewalk vending and established requirements on cities and counties for the regulation of sidewalk vendors; and
WHEREAS, on March 5, 2019, the City Council adopted Ordinance 313, implementing sidewalk vending regulations in compliance with SB 946; and WHEREAS, since the adoption of Ordinance 313, the City has attempted to address the objective health, safety, and welfare concerns posed by sidewalk vending carried out in violation of the Lake Forest Municipal Code; and WHEREAS, pursuant to Cal. Const. Art. XI, Sec. 7 and under the City’s general police powers, the City of Lake Forest (“City”) is empowered and charged with responsibility for the health, safety, and welfare of its citizens; and WHEREAS, the City Council finds that, unless properly regulated, sidewalk vending poses a unique risk to the health, safety, and welfare of the public, including, but not limited to, impacts to traffic, pedestrian safety, mobility, unsanitary conditions involving food preparation, other safety and environmental hazards, risks to children, and consumer protection; and
WHEREAS, SB 946 allows a local authority to adopt additional requirements regulating the time, place, and manner of sidewalk vending if those regulations are directly related to objective health, safety, and welfare concerns; and WHEREAS, despite these standards, the City has seen a rise in unpermitted sidewalk vending activities where the vendors set up commercial-style cooking operations at major intersections or in proximity to high-traffic areas and sell food but are unable to meet the health and safety requirements, such as properly heating and cooling food, providing handwashing facilities, washing utensils and equipment, and disposing of used liquids.
Item: 6
27 -3-
WHEREAS, the City Council hereby declares that enacting objective impounding procedures as a regulatory measure for sidewalk vending are necessary to protect the health, safety, and welfare of the public; and
WHEREAS, the impoundment of vendor equipment is neither a punishment of violators of the City’s sidewalk vending regulations nor a deterrent for future violators, but rather the application of the well-established “community caretaking function,” as first articulated by the United States Supreme Court in Cady v. Dombrowski (1973) 413 U.S. 433; and
WHEREAS, law enforcement officers routinely perform community caretaking functions, such as helping stranded motorists, returning lost children to anxious parents, and assisting and protecting citizens in need; and
WHEREAS, the community caretaking function regularly extends to law enforcement removing and impounding vehicles from the road where the driver of the vehicle cannot or will not lawfully operate the vehicle, the vehicle is located in an inappropriate location, and that vehicle poses a risk to public safety; and
WHEREAS, the impoundment of vehicles as part of the community caretaking function does not require obtaining a warrant beforehand, so long as law enforcement has reasonably determined that the vehicle posed a hazard to public safety; and WHEREAS, the nature of a sidewalk vending operation poses many similar problems as vehicles, as well as posing unique health and safety hazards; and WHEREAS, the City Council finds that the immediate impoundment of vendor equipment meets the community caretaking exception to requiring a prior warrant as it allows for the reasonable removal of vending equipment that poses a hazard to public safety due to its location or in response to vendors who refuse to comply with the City’s sidewalk vending regulations to the detriment of public health, safety, and welfare; and WHEREAS, this Ordinance provides clear standards in which vending equipment in the public right of way is subject to immediate impoundment as well as procedural safeguards to uphold due process for a warrantless impoundment; and WHEREAS, this Ordinance balances the City’s legitimate interests in preserving public health, safety, and welfare with the private interest in a sidewalk vendor’s continued operations;
WHEREAS, private interests are protected by this Ordinance through procedural protections, including the requirement that the City takes steps to locate the owner or operator of the sidewalk vending equipment, the City first issues a verbal warning to sidewalk vendors operating in violation of this Ordinance and allows a reasonable time to comply, and the City provides a sidewalk vendor the option to promptly appeal the impoundment and contest any associated fees; and
Item: 6
28 -4-
WHEREAS, these procedural protections help ensure that impoundment actions are proper while protecting an individual’s due process; and WHEREAS, the City Council finds that the impoundment provisions enacted in this Ordinance do not constitute an infraction, misdemeanor, or other form of citation or penalty; and
WHEREAS, all other legal prerequisites relating to the adoption of this Ordinance have occurred.
NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF LAKE FOREST, CALIFORNIA, DOES ORDAIN AS FOLLOWS:
SECTION 1. Incorporation of Recitals. The City Council hereby finds and determines that the Recitals above are true and correct and incorporated as findings herein.
SECTION 2. CEQA. The City Council determines that adoption of the Ordinance is exempt from the California Environmental Quality Act (CEQA) pursuant to State CEQA Guidelines section 15061(b)(3) because it can be seen with certainty that there is no possibility that the Ordinance may have a significant effect on the environment. (14 Cal.
Code Regs., § 15061(b)(3).) The Ordinance does not authorize any development or other activity that could result in a significant effect on the environment. Accordingly, the City Council hereby directs City staff to file a Notice of Exemption within five days of the adoption of this Ordinance.
SECTION 3. Code Amendment. Section 5.17.110, titled “Vending equipment impoundment” is hereby added to Title 5 of the Lake Forest Municipal Code to read as follows:
“5.17.110 Vending Equipment Impoundment
Item: 6
29 -5-
A. The City may impound a sidewalk vendor’s vending cart, food, equipment and any goods therein used in violation of this chapter, pursuant to the provisions of Civil Code Section 2080.10, Health and Safety Code Section 114393, and/or any other applicable City, county, or state law for the following reasons:
1. Food displayed, offered, or made available for sale including equipment, or utensils used by a sidewalk vendor without holding a valid and displayed health permit from the Orange County Health Care Agency’s Environmental Health Division in violation of City, county or state law;
2. Items reasonably appear to be unattended or abandoned on public property for more than thirty 30 consecutive minutes without moving from the exact spot it was located and reasonable attempts were made to locate the owner or responsible person(s) within the first fifty 50 feet of the items;
Item: 6
30 -6-
3. Items displayed, offered, or made available for sale by a sidewalk vendor who does not obtain a sidewalk vending permit from the City Public Works Department as required by Section 5.17.030;
4. Items displayed, offered, or made available for sale by a sidewalk vendor who operates in violation of this chapter, and refuses or fails to provide identification;
5. Operation in violation of this chapter and refusal or failure by a sidewalk vendor to comply within 30 consecutive minutes after being instructed to do so by a City code enforcement officer or other City official;
6. Items displayed, offered, or made available for sale by a sidewalk vendor who vends in a manner that blocks or obstructs the free movement of pedestrians on sidewalks and fails to maintain a minimum of thirty-six inches (36″) of accessible path of travel, without obstruction, along the sidewalk upon which the vendor is vending so as to enable persons to freely pass while walking, running, or using mobility assistance devices and/or in violation of the Federal Americans with Disabilities Act of 1990 (Public Law 101-336) and other disability access standards;
7. Items displayed, offered, or made available for sale in violation of any applicable federal, state, county, or City laws, ordinances, and regulations, including but not limited to illegal or counterfeit merchandise, alcohol, tobacco, cannabis, smoke or vaping products, adult-oriented material, live animals, weapons, and/or pharmaceuticals;
8. Items creating an imminent and substantial danger or environmental hazard to the health, safety, or general welfare of the public or property at the location of the vending cart such as, but not limited to, discharge of oil, grease or other slippery substances on the street or sidewalk without any effort to maintain best management practices; using unapproved portable cooking equipment, heating element, gas-fueled appliance, generator, or any open flame; attaching or using any water lines, electrical lines, or gas lines during vending operations; during an urgent or emergency public safety event or incident; lack of a fire extinguisher; using any luminaire, flashing lights or any other animated devices or sign; or using, operating or permitting any radio, loudspeaker or other machine or device for the producing or reproducing of sound; or
Item: 6
31 -7-
9. Items impounded as evidence of a crime or booked as property after an arrest of any sidewalk vendor involving any City, county, state or federal law or regulation excluding Chapter 5.17. Such items shall be stored and released in accordance with the procedures set forth in the California Penal Code and any other applicable state law.
B. Prior to commencing an impoundment action under the preceding paragraph A, a City code enforcement officer or other City official will issue a verbal warning to the sidewalk vendor operating in violation of this chapter. An impoundment action will proceed only if the sidewalk vendor fails or refuses to comply with the verbal warning within the time specified or, if no time is specified, within a reasonable time.
C. The City may immediately dispose of impounded items that are perishable and/or cannot be safely stored.
D. Sidewalk vending items or equipment impounded pursuant to this section, excluding those items that were immediately disposed of according to
5.17.110(C), shall be held by the City for not less than 30 nor more than 60 days from the date of impoundment.
E. The City shall provide the person from whom the vending items or equipment were impounded with a receipt and instructions for retrieval of the impounded items, excluding those items that were immediately disposed of according to
5.17.110(C). The receipt and instructions shall be given to the person from whom the items were taken at the time of impound or shall be mailed within two business days of the impound to the address received by the City when the person applied for a sidewalk vending permit.
F. Impounded vending equipment and goods, excluding any items that were disposed of according to 5.17.110(B), will be released to the sidewalk vendor or owner provided that proper proof of ownership is presented, and the City receives payment in full of all administrative costs incurred as a result of the violation. Any unclaimed items will be considered abandoned and forfeited to the City after 60 days following impoundment. Pursuant to state law, the City shall not be liable for damages caused by any official action performed with due care regarding the disposition of items pursuant to this section and the disposal provisions of this chapter.
Item: 6
32 -8-
G. An aggrieved sidewalk vendor may, within 21 calendar days of the impoundment, appeal the impoundment of their items by requesting an administrative hearing before a hearing officer in accordance with 5.17.090 and, if successful in their appeal, may have their items returned, excluding any items that were immediately disposed of according to 5.17.110(C), and shall not be required to pay the impound fee(s). If the sidewalk vendor is successful on appeal, any appeal fee paid by the sidewalk vendor shall be refunded.
H. A sidewalk vendor may recover impounded items or equipment, excluding any items immediately disposed of according to 5.17.110(C), upon paying applicable impound fees and demonstrating proper proof of ownership of the items.
I. The City Council may adopt by ordinance or resolution impound fees, which shall reflect the City’s personnel, enforcement, investigation, storage, disposal, and impound costs.
J. The City Manager is authorized to develop additional regulations for the storage and release of impounded items not in conflict with this chapter.
SECTION 4. Effective Date. This Ordinance takes effect 30 days after its adoption.
SECTION 5. Severability. If any section, subsection, subdivision, sentence, clause, phrase, or portion of this Ordinance for any reason is held to be invalid or unconstitutional by the decision of any court of competent jurisdiction, such decision shall not affect the validity of the remaining portions of this Ordinance. The City Council hereby declares that it would have adopted this Ordinance, and each section, subsection, subdivision, sentence, clause, phrase, or portion thereof, irrespective of the fact that any one or more sections, subsections, subdivisions, sentences, clauses, phrases, or portions thereof be declared invalid or unconstitutional.
SECTION 6. Certification. The City Clerk shall certify as to the passage, and adoption of this Ordinance and shall cause the same, or a summary thereof, to be published and/or posted in the manner required by law.
SECTION 7. Record of Proceedings. The documents and materials associated with this Ordinance that constitute the record of proceedings on which the City Council’s findings and determinations are based are located at Lake Forest City Hall, 100 Civic Center Drive, Lake Forest, California 92630. The City Clerk is the custodian of the record of proceedings.
Item: 6
33 -9-
PASSED, APPROVED, AND ADOPTED this XXth day of ____, 2024. _______________________
MARK TETTEMER
MAYOR
ATTEST:
LISA BERGLUND, MPA
CITY CLERK
APPROVED AS TO FORM:
MATTHEW E. RICHARDSON
CITY ATTORNEY
STATE OF CALIFORNIA )
COUNTY OF ORANGE ) SS
CITY OF LAKE FOREST )
I, Lisa Berglund, City Clerk of the City of Lake Forest, do hereby certify that the foregoing Ordinance No. _______ was duly introduced and placed upon its first reading at a regular meeting of the City Council on the ___ day of ________, 2024, and thereafter, said Ordinance was duly adopted and passed at a regular meeting of the City Council on the ___ day of _____ 2024, by the following vote, to wit:
AYES: COUNCIL MEMBERS
NOES: COUNCIL MEMBERS
ABSENT: COUNCIL MEMBERS
ABSTAIN: COUNCIL MEMBERS
LISA BERGLUND, MPA
CITY CLERK
Item: 6
34 CITY COUNCIL AGENDA REPORT
MEETING DATE: 7/16/2024
DEPARTMENT: Public Works
SUBJECT:
AWARD OF CONTRACT FOR PAVEMENT MANAGEMENT PLAN UPDATE
PROFESSIONAL SERVICES
RECOMMENDED ACTION(S):
1. Award a Professional Consultant Services Agreement with a compensation amount of $249,000 to Nichols Consulting Engineers for Pavement Management Plan Update Services.
2. Authorize the Mayor to sign, and the City Clerk to attest, the award of contract to Nichols Consulting Engineers.
EXECUTIVE SUMMARY:
The Public Works Department utilizes consultant services to update and maintain the City’s Pavement Management Plan (“PMP”). This PMP update maintains the City’s Measure M2 fund eligibility and provides recommendations to improve the overall condition of city streets.
After reviewing proposals and interviewing firms, staff recommends awarding a contract to Nichols Consulting Engineers ("NCE”) with a not-to exceed amount of $249,000 for Pavement Management Plan Services. Funds to pay for the first years’ services are included in the City’s FY 2024-25 of the 2023-2030 Capital Improvement Plan (“CIP”) from Infrastructure Reserve Fund for Street Resurfacing and Slurry Seal Annual Projects. Future funds would be budgeted in the corresponding fiscal years in the CIP from the same fund.
BACKGROUND:
The City’s public street network consists of approximately 170 centerline miles of paved roads, which includes 39 miles of the Master Plan of Arterial Highways (“MPAH”) streets and 131 miles of local streets. The City has been using a computerized PMP since 1991 to inventory the city’s street system and recommend rehabilitation strategies to improve the overall condition of the city’s streets. The PMP provides cost scenarios to maximize the pavement condition Item: 7
35 given various budget levels. The Orange County Transportation Authority (“OCTA”), requires Orange County cities to comply with the OCTA Pavement Management Plan Guidelines Manual to maintain eligibility to receive Measure M2 funding. The guidelines require cities to update their PMP every two-years.
DISCUSSION:
The City completed the most recent comprehensive update of the PMP in May 2023, indicating that the next complete update should be finished by May 2025.
The existing contract for PMP services expired. In accordance with the City’s Purchasing Guidelines (“Guidelines”), staff initiated a Request for Proposal (“RFP”) for new consulting services. The consultant would inspect and assess the pavement condition of the City’s public street network, update the City’s PMP database, and recommend rehabilitation strategies to improve pavement conditions.
The City Manager approved the RFP, authorizing staff to receive proposals for PMP services. Subsequently, staff issued the RFP utilizing the City’s electronic procurement system, OpenGov.com. On December 20, 2023, the City received four (4) proposals from the following firms:
• Fugro USA Land, Inc. (”Fugro”);
• Bucknam Infrastructure Group, Inc.(”Bucknam”);
• IMS Infrastructure Management Services, LLC (”IMS”); and • Nichols Consulting Engineers (”NCE”).
A City Manager-approved selection panel consisting of staff from the Public Works and Management Services Departments reviewed the proposals:
• Deputy City Manager, Management Services Department
• Street Maintenance Administrator, Public Works Department • Assistant City Engineer, Public Works Department
The Selection Committee evaluated the proposals based on the firm’s expertise and experience, response to the scope of work, and allocation of resources. In accordance with the City’s Purchasing and Contracting Guidelines, firms scoring a minimum of sixty (60) points on the qualitative evaluation portion may advance to the interview phase of the process. Based on their technical proposal scoring, all four proposing firms advanced to the interview round. The results of the qualitative evaluation and qualifications review are identified in the following tables.
Item: 7
36 Table 1: Technical Proposal Review Phase Scoring
Firm Evaluator 1 Evaluator 2 Evaluator 3 Total Score
(Max Score 100)
NCE 70.5 67 90 75.83
Bucknam
Infrastructure
Group, Inc.
64 76 73.5 71.17
Fugro, USA Land
Inc.
65 80 61 68.67
IMS Infrastructure
Management
Services
60 73 68.5 67.17
Table 2: Interview and Cost Proposal Phase Scoring
Firm Evaluator 1 Evaluator 2 Evaluator 3 Total Score
(Max Score 200)
NCE 159 155 161.4 158.47
Bucknam
Infrastructure
Group, Inc.
151.8 153.4 157.4 154.2
IMS Infrastructure
Management
Services
143.2 152 143.2 146.13
Fugro, USA Land
Inc.
99 120.6 111.8 110.47
The selection committee rated NCE the highest based on its cost proposal, qualifications, well-prepared presentation, excellent examples of similar engagements, and thorough responses to the interview questions. The consultant selection process included the provision for a “revised cost proposal” pricing. In addition, the City requested each firm include Deflection Testing as an optional service that may add value to the project at the discretion of the City.
NCE also listed segmentation and true area services as additional services in their best and final cost proposal. The City included the base scope of services plus optional services for deflection testing when conducting the cost proposal evaluation. Table 3 provides the Cost Proposal Comparison for the four firms.
Item: 7
37 Table 3: Cost Proposal Comparison
Firm Cost Proposal Notes
NCE $326,000 (Initial)
$249,000 (Final)
Final price also includes Segmentation &
True Area additional services for the
negotiated price of $13,000.
Bucknam Infrastructure
Group, Inc.
$133,037* Cost Proposal did not include amount for
Deflection Testing
Fugro, USA Land Inc. $252,080
IMS Infrastructure
Management Services
$118,640
NCE is the highest ranked firm after completion of the interview and cost scoring in accordance with the City’s purchasing guidelines. NCE received the highest scores based on their thorough proposal, experience, project approach and second highest cost. NCE provided the most comprehensive and thoughtful conservative approach in detailing the scope for services including deflection testing, pavement coring samples, and Ground Penetration Radar (“GPR”) testing for comprehensive data collection and calibration purposes. Although this work was included in the RFP, Bucknam did not include any costs for deflection testing services and IMS did not include coring or GPR testing in their optional services cost. Furthermore, the City utilized the Chicago office of IMS previously and staff did not recommend renewing their 4th year extension option.
After NCE was deemed the highest ranked in the “Interview and Cost Proposal Phase Scoring”, staff negotiated the cost for optional and additional services with NCE. This resulted in the lower total cost of $249,000 for the contract. This total cost also includes the negotiated price for additional segmentation and true area services. The need for optional services will be evaluated by staff as the study process progresses and will be determined by staff based on the findings of the initial phases of the study. With the recent drastic increase in pavement costs, staff’s approach is to utilize additional field data, as necessary, to better optimize pavement repair approaches. Once the consultant has started the study, additional information may be useful to stretch pavement repair funding. The full scope of optional and additional services will only be utilized if initial findings confirm the added value and the need for these services. Staff contacted references for NCE and all references provided positive and constructive responses relative to the services provided by NCE (Attachment 1).
After 2025 PMP update, another update will be required in 2027. The proposed agreement with NCE is the City’s standard three-year contract with two optional one-year extensions and includes services and costs associated with the actions necessary for both of the required PMP updates during the contract term. Staff Item: 7
38 would propose the required budget for the future PMP updates in the corresponding fiscal years of the CIP. Pursuant to the Guidelines, the Finance Department prepared the Agreement with NCE and the City Attorney’s Office approved it as to form (Attachment 2). The proposed contract has a term of July 16, 2024, through July 15, 2027, and an associated contract authority of $249,000 for the two PMP updates and additional services.
FISCAL IMPACT:
The total not-to-exceed compensation amount for the proposed Agreement with NCE is $249,000 over a three-year term. The services for this project are budgeted in FY 2024-25 of the 2023-2030 CIP. Future PMP Services identified in this multi-year contract would be budgeted in future fiscal years of the CIP.
ATTACHMENTS:
1. References
2. Agreement with NCE
Initiated By: Nazila Mokarram, Principal Civil Engineer Submitted By: Thomas E. Wheeler, P.E., Director of Public Works/City Engineer Approved By: Keith Neves, Assistant City Manager
Item: 7
39 Attachment 1
Item: 7
40 Contact #1: Contact #2: Contact #3:
Agency: City of Anaheim City of Yorba Linda County of Orange Project:
PMP Update and
streetsaver conversion
PMP Update and
streetsaver conversion
PMP Update and
streetsaver conversion
Contact Info: Jason Thiem Rick Yee Krishnamenon Nadaraja Phone: (714) 765-5100 (714) 961-7171 (714) 245-4516
Email: [email protected] [email protected] krishnamenon.nadaraja@ocp w.ocgov.com
QUESTIONS RESPONSE RESPONSE RESPONSE
1. What were the services
performed?
PMP Update and
streetsaver conversion PMP Update PMP Update and streetsaver conversion
2. How would you rate the quality
of work? Very Good Good Very good
3. How well did they adhere to
budget? Very Good Good Very good
4.Rate the day-to-day
communication with the firm. Very Good Good good
5. Would you hire the firm again? Yes Yes Yes
6. Do you have any additional
comments or information
regarding your experience with
the firm?
They are willing to work
extra hours to make sure
they meet your deadlines.
Very receptive to your
overall goals and will ensure
your agency meets them.
No
CITY OF LAKE FOREST - DEPARTMENT OF PUBLIC WORKS
Pavement Management Plan Update
REFERENCE CHECK
NCE
No
Item: 7
41 Attachment 2
Item: 7
42 PAVEMENT MANAGEMENT PLAN UPDATE
(2024-045)
City of Lake Forest
100 Civic Center Dr.
Lake Forest, CA 92630
DocuSign Envelope ID: EDE94761-7485-482F-8581-3A86D6942AA9 Item: 7 43 City of Lake Forest
Professional Consultant Services Agreement
Pavement Management Plan Update
I. PARTIES AND DATE. ..............................................................................
II. RECITALS...............................................................................................
III. TERMS...................................................................................................
IV. SIGNATURES. ........................................................................................
V. EXHIBIT "A" SCOPE OF SERVICES...........................................................
VI. EXHIBIT "B" - SCHEDULE OF SERVICES..................................................
VII. EXHIBIT "C" - COMPENSATION..............................................................
VIII. EXHIBIT "D" - INSURANCE REQUIREMENTS...........................................
DocuSign Envelope ID: EDE94761-7485-482F-8581-3A86D6942AA9 Item: 7 44 Title: Pavement Management Plan Update
3 1. PARTIES AND DATE.
This Agreement is made and entered into this [***INSERT DAY***] day of [***INSERT MONTH***], [***INSERT YEAR***], by and between the City of Lake Forest, a municipal corporation, organized under the laws of the State of California, with its principal place of business at 100 Civic Center Drive, Lake Forest, California 92630 (“City”) and Nicolas Consulting Engineers, CHTD dba NCE, a Nevada Corporation (Inc.) , with its principal place of business at 17050 Bushard Street, Suite #200, Fountain Valley, CA 92708 (“Consultant”). City and Consultant are sometimes individually referred to herein as “Party” and collectively as “Parties.”
DocuSign Envelope ID: EDE94761-7485-482F-8581-3A86D6942AA9 Item: 7 45 Title: Pavement Management Plan Update
4 2. RECITALS.
2.1. Consultant.
Consultant desires to perform and assume responsibility for the provision of certain professional Pavement Management Plan Update consulting services required by the City on the terms and conditions set forth in this Agreement. Consultant represents that it is experienced in providing professional Pavement Management Plan Update consulting services to public clients, is licensed in the State of California, and is familiar with the plans of City.
2.2. Project.
City desires to engage Consultant to render such professional Pavement Management Plan Update consulting services for the Pavement Management Plan Update project ("Project") as set forth in this Agreement.
DocuSign Envelope ID: EDE94761-7485-482F-8581-3A86D6942AA9 Item: 7 46 Title: Pavement Management Plan Update
5 3. TERMS.
3.1. Scope of Services and Term.
3.1.1 General Scope of Services. Consultant promises and agrees to furnish to the City all labor, materials, tools, equipment, services, and incidental and customary work necessary to fully and adequately supply the professional Pavement Management Plan Update consulting services necessary for the Project ("Services"). The Services are more particularly described in Exhibit "A" attached hereto and incorporated herein by reference. All Services shall be subject to, and performed in accordance with, this Agreement, the exhibits attached hereto and incorporated herein by reference, and all applicable local, state and federal laws, rules and regulations.
3.1.2 Term. The term of this Agreement shall be from July 16, 2024 to July 15, 2027, unless earlier terminated as provided herein. The City shall have the unilateral option, at its sole discretion, to renew this Agreement annually for no more than two (2) additional one-year terms. Consultant shall complete the Services within the term of this Agreement, and shall meet any other established schedules and deadlines.
3.2. Responsibilities of Consultant.
3.2.1 Independent Contractor; Control and Payment of Subordinates. The Services shall be performed by Consultant or under its supervision. Consultant will determine the means, methods and details of performing the Services subject to the requirements of this Agreement. City retains Consultant on an independent contractor basis and not as an employee. Consultant retains the right to perform similar or different services for others during the term of this Agreement. Any additional personnel performing the Services under this Agreement on behalf of Consultant shall also not be employees of City and shall at all times be under Consultant's exclusive direction and control. Neither City, nor any of its officials, officers, directors, employees or agents shall have control over the conduct of Consultant or any of Consultant's officers, employees, or agents, except as set forth in this Agreement. Consultant shall pay all wages, salaries, and other amounts due such personnel in connection with their performance of Services under this Agreement and as required by law. Consultant shall be responsible for all reports and obligations respecting such additional personnel, including, but not limited to: social security taxes, income tax withholding, unemployment insurance, disability insurance, and workers' compensation insurance.
3.2.2 Schedule of Services. Consultant shall perform the Services expeditiously, within the term of this Agreement, and in accordance with the Schedule of Services set forth in Exhibit "B" attached hereto and incorporated herein by reference. Consultant represents that it has the professional and technical personnel required to perform the Services in conformance with such conditions. In order to facilitate Consultant's conformance with the Schedule, City shall respond to Consultant's submittals in a timely manner. Upon request of City, Consultant shall provide a more detailed schedule of anticipated performance to meet the Schedule of Services.
3.2.3 Conformance to Applicable Requirements. All work prepared by Consultant shall be subject to the approval of City.
DocuSign Envelope ID: EDE94761-7485-482F-8581-3A86D6942AA9 Item: 7 47 Title: Pavement Management Plan Update
6 3.2.4 Substitution of Key Personnel. Consultant has represented to City that certain key personnel will perform and coordinate the Services under this Agreement. Should one or more of such personnel become unavailable, Consultant may substitute other personnel of at least equal competence upon written approval of City. In the event that City and Consultant cannot agree as to the substitution of key personnel, City shall be entitled to terminate this Agreement for cause. As discussed below, any personnel who fail or refuse to perform the Services in a manner acceptable to the City, or who are determined by the City to be uncooperative, incompetent, a threat to the adequate or timely completion of the Project or a threat to the safety of persons or property, shall be promptly removed from the Project by the Consultant at the request of the City. The key personnel for performance of this Agreement are as follows: Margot Yapp.
3.2.5 City's Representative. The City hereby designates Thomas E. Wheeler, Director of Public Works, or his/her designee, to act as its representative in all matters pertaining to the administration and performance of this Agreement ("City's Representative"). City's Representative shall have the power to act on behalf of the City for review and approval of all products submitted by Consultant but not the authority to enlarge the Scope of Work or change the total compensation due to Consultant under this Agreement. The City Manager shall be authorized to act on City's behalf and to execute all necessary documents which enlarge the Scope of Work or change the Consultant's total compensation subject to the provisions contained in Section 3.3 of this Agreement. Consultant shall not accept direction or orders from any person other than the City Manager, City's Representative or his/her designee.
3.2.6 Consultant's Representative. Consultant hereby designates Vivek Jha, or his/her designee, to act as its representative for the performance of this Agreement ("Consultant's Representative"). Consultant's Representative shall have full authority to represent and act on behalf of the Consultant for all purposes under this Agreement. The Consultant's Representative shall supervise and direct the Services, using his/her best skill and attention, and shall be responsible for all means, methods, techniques, sequences, and procedures and for the satisfactory coordination of all portions of the Services under this Agreement.
3.2.7 Coordination of Services. Consultant agrees to work closely with City staff in the performance of Services and shall be available to City's staff, consultants and other staff at all reasonable times.
3.2.8 Standard of Care; Performance of Employees. Consultant shall perform all Services under this Agreement in a skillful and competent manner, consistent with the standards generally recognized as being employed by professionals in the same discipline in the State of California. Consultant represents and maintains that it is skilled in the professional calling necessary to perform the Services. Consultant warrants that all employees and subconsultants shall have sufficient skill and experience to perform the Services assigned to them. Finally, Consultant represents that it, its employees and subconsultants have all licenses, permits, qualifications and approvals of whatever nature that are legally required to perform the Services, and that such licenses and approvals shall be maintained throughout the term of this Agreement. As provided for in the indemnification provisions of this Agreement, Consultant shall perform, at its own cost and expense and without reimbursement from the City, any services necessary to correct errors or omissions which are caused by the Consultant's failure to comply with the standard of care provided for herein. Any employee of the Consultant or its DocuSign Envelope ID: EDE94761-7485-482F-8581-3A86D6942AA9 Item: 7 48 Title: Pavement Management Plan Update
7 sub-consultants who is determined by the City to be uncooperative, incompetent, a threat to the adequate or timely completion of the Project, a threat to the safety of persons or property, or any employee who fails or refuses to perform the Services in a manner acceptable to the City, shall be promptly removed from the Project by the Consultant and shall not be re employed to perform any of the Services or to work on the Project.
3.2.9 Laws and Regulations. Consultant shall keep itself fully informed of and in compliance with all local, state and federal laws, rules and regulations in any manner affecting the performance of the Project or the Services, including all Cal/OSHA requirements, and shall give all notices required by law. Consultant shall be liable for all violations of such laws and regulations in connection with Services. If Consultant performs any work knowing it to be contrary to such laws, rules and regulations, Consultant shall be solely responsible for all costs arising therefrom. Consultant shall defend, indemnify and hold City, its officials, directors, officers, employees, agents, and volunteers free and harmless, pursuant to the indemnification provisions of this Agreement, from any claim or liability arising out of any failure or alleged failure to comply with such laws, rules or regulations.
3.2.10 Safety. Consultant shall execute and maintain its work so as to avoid injury or damage to any person or property. In carrying out its Services, the Consultant shall at all times be in compliance with all applicable local, state and federal laws, rules and regulations, and shall exercise all necessary precautions for the safety of employees appropriate to the nature of the work and the conditions under which the work is to be performed. Safety precautions, where applicable, shall include, but shall not be limited to: (A) adequate life protection and lifesaving equipment and procedures; (B) instructions in accident prevention for all employees and subconsultants, such as safe walkways, scaffolds, fall protection ladders, bridges, gang planks, confined space procedures, trenching and shoring, equipment and other safety devices, equipment and wearing apparel as are necessary or lawfully required to prevent accidents or injuries; and (C) adequate facilities for the proper inspection and maintenance of all safety measures.
3.2.11 Insurance. Consultant agrees to procure and maintain, at Consultant’s expense all insurance specified in Exhibit “D” attached hereto and by this reference incorporated herein. Consultant shall require all subconsultants to carry the same policies and limits of insurance that the Consultant is required to maintain, unless otherwise approved in writing by the City.
3.2.12 Water Quality Management and Compliance.
3.2.12.1 Storm Water Management. Storm, surface, nuisance, or other waters may be encountered at various times during the Services. Consultant hereby acknowledges that it has investigated the risk arising from such waters, and assumes any and all risks and liabilities arising therefrom.
3.2.12.2 Compliance with Water Quality Laws, Ordinances and Regulations. Consultant shall keep itself and all subcontractors, staff, and employees fully informed of and in compliance with all local, state and federal laws, rules and regulations that may impact, or be implicated by the performance of the Services including, without limitation, all applicable provisions of the City’s ordinances regulating water quality and storm water; the Federal Water Pollution Control Act (33 U.S.C. § 1251, et seq.); the California Porter-Cologne Water Quality Control Act (Water Code § 13000 et seq.); and any and all regulations, policies, or permits issued pursuant to any such authority. Consultant must additionally comply with the lawful requirements of the City, and any other DocuSign Envelope ID: EDE94761-7485-482F-8581-3A86D6942AA9 Item: 7 49 Title: Pavement Management Plan Update
8 municipality, drainage district, or other local agency with jurisdiction over the location where the Services are to be conducted, regulating water quality and storm water discharges.
3.2.12.3 Compliance with DAMP and LIP. In addition to compliance with the laws, ordinances and regulations listed in Section 3.2.12.2 of this Agreement, Consultant must comply with all applicable requirements of the Orange County Drainage Area Management Plan (“DAMP”), the City of Lake Forest Local Implementation Plan (“LIP”) and the applicable Water Quality Management Plan (“WQMP”). The DAMP contains requirements related to design and construction of public projects. Consultant must be familiar the DAMP, and the LIP and comply with the requirements as specified therein.
A copy of the DAMP is available on the internet at:
http://www.ocwatersheds.com/documents/damp/mapplan
A copy of the LIP is available on the internet at:
http://www.lakeforestca.gov/296/Local-Implementation-Plan-LIP
3.2.12.4 Standard of Care. Consultant warrants that all employees and subcontractors shall have sufficient skill and experience to perform the work assigned to them without impacting water quality in violation of the laws, regulations and policies described in Sections 3.2.12.2 and 3.2.12.3 of this Agreement. Consultant further warrants that it, its employees and subcontractors have or will receive adequate training, as determined by the City, regarding these requirements as they may relate to the Services.
3.2.12.5 Liability for Non-compliance.
(A) Indemnity: Failure to comply with laws, regulations, and ordinances listed in Sections 3.2.12.2 and 3.2.12.3 of this Agreement is a violation of federal and state law. Notwithstanding any other indemnity contained in this Agreement, Consultant agrees to indemnify and hold harmless the City, its officials, officers, agents, employees and authorized volunteers from and against any and all claims, demands, losses or liabilities of any kind or nature which the City, its officials, officers, agents, employees and authorized volunteers may sustain or incur for noncompliance with the laws, regulations, and ordinances listed above, arising out of or in connection with the Services, except for liability resulting from the sole established negligence, willful misconduct or active negligence of the City, its officials, officers, agents, employees or authorized volunteers. (B) Defense: City reserves the right to defend any enforcement action or civil action brought against the City for Consultant’s failure to comply with any applicable water quality law, regulation, or policy. Consultant hereby agrees to be bound by, and to reimburse the City for the costs associated with, any settlement reached between the City and the relevant enforcement entity. (C) Damages: City may seek damages from Consultant for delay in completing the Services caused by Consultant’s failure to comply with the laws, regulations and policies described in Sections 3.2.12.2 and 3.2.12.3 of this Agreement, or any other relevant water quality law, regulation, or policy. regulation, or policy.
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9 3.3. Fees and Payments.
3.3.1 Compensation. Consultant shall receive compensation, including authorized reimbursements, for all Services rendered under this Agreement at the rates set forth in Exhibit "C" attached hereto and incorporated herein by reference. The total compensation shall not exceed TWO HUNDRED FORTY-NINE THOUSAND DOLLARS ($249,000.00) without written approval of the City Council or City Manager as applicable. Extra Work may be authorized, as described below, and if authorized, will be compensated at the rates and manner set forth in this Agreement.
3.3.2 Payment of Compensation. Consultant shall submit to City a monthly invoice which indicates work completed and hours of Services rendered by Consultant. The invoice shall describe the amount of Services provided since the initial commencement date, or since the start of the subsequent billing periods, as appropriate, through the date of the invoice. City shall, within 30 days of receiving such invoice, review the invoice and pay all non-disputed and approved charges thereon. If the City disputes any of Consultant's fees, the City shall give written notice to Consultant within thirty (30) days of receipt of an invoice of any disputed fees set forth therein.
3.3.3 Reimbursement for Expenses. Consultant shall not be reimbursed for any expenses unless authorized in writing by City, or included in Exhibit "C" of this Agreement.
3.3.4 Extra Work. At any time during the term of this Agreement, City may request that Consultant perform Extra Work. As used herein, "Extra Work" means any work which is determined by City to be necessary for the proper completion of the Project, but which the Parties did not reasonably anticipate would be necessary at the execution of this Agreement. Consultant shall not perform, nor be compensated for, Extra Work without written authorization from the City.
3.3.5 Rate Increases. In the event that this Agreement is renewed pursuant to Section 3.1.2, the rate set forth in Exhibit “C” may be adjusted each year at the time of renewal as set forth in Exhibit “C.”
3.4. Labor Code Requirements.
3.4.1 Prevailing Wages. Consultant is aware of the requirements of California Labor Code Section 1720, et seq., and 1770, et seq., as well as California Code of Regulations, Title 8, Section 16000, et seq., ("Prevailing Wage Laws"), which require the payment of prevailing wage rates and the performance of other requirements on "public works" and "maintenance" projects. If the Services are being performed as part of an applicable "public works" or "maintenance" project, as defined by the Prevailing Wage Laws, and since the total compensation is $1,000 or more, Consultant agrees to fully comply with such Prevailing Wage Laws. City shall provide Consultant with a copy of the prevailing rates of per diem wages in effect at the commencement of this Agreement. Consultant shall make copies of the prevailing rates of per diem wages for each craft, classification or type of worker needed to execute the Services available to interested parties upon request, and shall post copies at the Consultant's principal place of business and at the project site. It is the intent of the parties to effectuate the requirements of sections 1771, 1774, 1775, 1776, 1777.5, 1813, and 1815 of the Labor Code within this Agreement, and Consultant shall therefore comply with such Labor Code sections to the fullest extent required by law. Consultant shall defend, indemnify and hold the City, its officials, officers, employees, DocuSign Envelope ID: EDE94761-7485-482F-8581-3A86D6942AA9 Item: 7 51 Title: Pavement Management Plan Update
10 agents, and volunteers free and harmless from any claim or liability arising out of any failure or alleged failure to comply with the Prevailing Wage Laws.
3.4.2 Registration. If the Services are being performed as part of an applicable “public works” or “maintenance” project, in addition to the foregoing, then pursuant to Labor Code sections 1725.5 and 1771.1, the Consultant and all subconsultants must be registered with the Department of Industrial Relations (“DIR”). Consultant shall maintain registration for the duration of the project and require the same of any subconsultants. This project may also be subject to compliance monitoring and enforcement by the DIR. It shall be Contractor’s sole responsibility to comply with all applicable registration and labor compliance requirements, including the submission of payroll records directly to the DIR.
3.5. Accounting Records.
3.5.1 Maintenance and Inspection. Consultant shall maintain complete and accurate records with respect to all costs and expenses incurred under this Agreement. All such records shall be clearly identifiable. Consultant shall allow a representative of City during normal business hours to examine, audit, and make transcripts or copies of such records and any other documents created pursuant to this Agreement. Consultant shall allow inspection of all work, data, documents, proceedings, and activities related to the Agreement for a period of three (3) years from the date of final payment under this Agreement.
3.6. General Provisions.
3.6.1 Termination of Agreement.
3.6.1.1 Grounds for Termination. City may, by written notice to Consultant, terminate the whole or any part of this Agreement at any time and without cause by giving written notice to Consultant of such termination, and specifying the effective date thereof, at least seven (7) days before the effective date of such termination. Upon termination, Consultant shall be compensated only for those services which have been adequately rendered to City, and Consultant shall be entitled to no further compensation. Consultant may not terminate this Agreement except for cause.
3.6.1.2 Effect of Termination. If this Agreement is terminated as provided herein, City may require Consultant to provide all finished or unfinished Documents and Data and other information of any kind prepared by Consultant in connection with the performance of Services under this Agreement. Consultant shall be required to provide such document and other information within fifteen (15) days of the request.
3.6.1.3 Additional Services. In the event this Agreement is terminated in whole or in part as provided herein, City may procure, upon such terms and in such manner as it may determine appropriate, services similar to those terminated.
3.6.1.4 Delivery of Notices. All notices permitted or required under this Agreement shall be given to the respective parties at the following address, or at such other address as the respective parties may provide in writing for this purpose:
Consultant: Nicolas Consulting Engineers, CHTD dba NCE
17050 Bushard Street, Suite #200
DocuSign Envelope ID: EDE94761-7485-482F-8581-3A86D6942AA9 Item: 7 52 Title: Pavement Management Plan Update
11 Fountain Valley, CA 92708
ATTN: Vivek Jha
City: City of Lake Forest
100 Civic Center Drive
Lake Forest, CA 92630
ATTN: City Clerk
Such notice shall be deemed made when personally delivered or when mailed, forty-eight (48) hours after deposit in the U.S. Mail, first class postage prepaid and addressed to the party at its applicable address. Actual notice shall be deemed adequate notice on the date actual notice occurred, regardless of the method of service.
3.6.2 Ownership of Materials and Confidentiality.
3.6.2.1 Documents & Data; Licensing of Intellectual Property. This Agreement creates a non exclusive and perpetual license for City to copy, use, modify, reuse, or sublicense any and all copyrights, designs, and other intellectual property embodied in plans, specifications, studies, drawings, estimates, and other documents or works of authorship fixed in any tangible medium of expression, including but not limited to, physical drawings or data magnetically or otherwise recorded on computer diskettes, which are prepared or caused to be prepared by Consultant under this Agreement ("Documents & Data"). Consultant shall require all subconsultants to agree in writing that City is granted a non exclusive and perpetual license for any Documents & Data the subconsultant prepares under this Agreement. Consultant represents and warrants that Consultant has the legal right to license any and all Documents & Data. Consultant makes no such representation and warranty in regard to Documents & Data which were prepared by design professionals other than Consultant or provided to Consultant by the City. City shall not be limited in any way in its use of the Documents & Data at any time, provided that any such use not within the purposes intended by this Agreement shall be at City's sole risk.
3.6.2.2 Confidentiality. All ideas, memoranda, specifications, plans, procedures, drawings, descriptions, computer program data, input record data, written information, and other Documents & Data either created by or provided to Consultant in connection with the performance of this Agreement shall be held confidential by Consultant. Such materials shall not, without the prior written consent of City, be used by Consultant for any purposes other than the performance of the Services. Nor shall such materials be disclosed to any person or entity not connected with the performance of the Services or the Project. Nothing furnished to Consultant which is otherwise known to Consultant or is generally known, or has become known, to the related industry shall be deemed confidential. Consultant shall not use City's name or insignia, photographs of the Project, or any publicity pertaining to the Services or the Project in any magazine, trade paper, newspaper, television or radio production or other similar medium without the prior written consent of City.
3.6.2.3 Confidential Information. The City shall refrain from releasing Consultant’s proprietary information ("Proprietary Information") unless the City's legal counsel determines that the release of the Proprietary Information is required by the California Public Records Act or other applicable state or federal law, or order of a court of competent jurisdiction, in which case the City shall notify Consultant of its intention to release Proprietary Information. Consultant shall have five (5) DocuSign Envelope ID: EDE94761-7485-482F-8581-3A86D6942AA9 Item: 7 53 Title: Pavement Management Plan Update
12 working days after receipt of the Release Notice to give City written notice of Consultant's objection to the City's release of Proprietary Information. Consultant shall indemnify, defend and hold harmless the City, and its officers, directors, employees, and agents from and against all liability, loss, cost or expense (including attorney’s fees) arising out of a legal action brought to compel the release of Proprietary Information. City shall not release the Proprietary Information after receipt of the Objection Notice unless either: (1) Consultant fails to fully indemnify, defend (with City's choice of legal counsel), and hold City harmless from any legal action brought to compel such release; and/or (2) a final and nonappealable order by a court of competent jurisdiction requires that City release such information.
3.6.3 Cooperation; Further Acts. The Parties shall fully cooperate with one another, and shall take any additional acts or sign any additional documents as may be necessary, appropriate or convenient to attain the purposes of this Agreement.
3.6.4 Attorney's Fees. If either party commences an action against the other party, either legal, administrative or otherwise, arising out of or in connection with this Agreement, the prevailing party in such litigation shall be entitled to have and recover from the losing party reason¬able attorney's fees and all other costs of such action.
3.6.5 Indemnification.
To the fullest extent permitted by law, Consultant shall defend (with counsel of City’s choosing), indemnify and hold the City, its officials, officers, employees, volunteers and agents free and harmless from any and all claims, demands, causes of action, costs, expenses, liability, loss, damage or injury of any kind, in law or equity, to property or persons, including wrongful death, in any manner arising out of, pertaining to, or incident to any alleged acts, errors or omissions, or willful misconduct of Consultant, its officials, officers, employees, subcontractors, consultants or agents in connection with the performance of the Consultant's Services, the Project or this Agreement, including without limitation the payment of all damages, expert witness fees and attorneys fees and other related costs and expenses. Consultant's obligation to indemnify shall not be restricted to insurance proceeds, if any, received by the Consultant or the City, its officials, officers, employees, agents or volunteers.
If Consultant’s obligation to defend, indemnify, and/or hold harmless arises out of Consultant’s performance as a “design professional” (as that term is defined under Civil Code section 2782.8), then, and only to the extent required by Civil Code section 2782.8, which is fully incorporated herein, Consultant’s indemnification obligation shall be limited to claims that arise out of, pertain to, or relate to the negligence, recklessness, or willful misconduct of the Consultant, and, upon Consultant obtaining a final adjudication by a court of competent jurisdiction, Consultant’s liability for such claim, including the cost to defend, shall not exceed the Consultant’s proportionate percentage of fault.
3.6.6 Entire Agreement. This Agreement contains the entire Agreement of the parties with respect to the subject matter hereof, and supersedes all prior negotiations, understandings or agreements. This Agreement may only be modified by a writing signed by both parties.
3.6.7 Governing Law. This Agreement shall be governed by the laws of the State of California. Venue shall be in Orange County.
3.6.8 Time of Essence. Time is of the essence for each and every provision of this Agreement.
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13 3.6.9 City's Right to Employ Other Consultants. City reserves right to employ other consultants in connection with this Project.
3.6.10 Successors and Assigns. This Agreement shall be binding on the successors and assigns of the parties.
3.6.11 Assignment or Transfer. Consultant shall not assign, hypothecate, or transfer, either directly or by operation of law, this Agreement or any interest herein without the prior written consent of the City. Any attempt to do so shall be null and void, and any assignees, hypothecates or transferees shall acquire no right or interest by reason of such attempted assignment, hypothecation or transfer.
3.6.12 Construction; References; Captions. Since the Parties or their agents have participated fully in the preparation of this Agreement, the language of this Agreement shall be construed simply, according to its fair meaning, and not strictly for or against any Party. Any term referencing time, days or period for performance shall be deemed calendar days and not work days. All references to Consultant include all personnel, employees, agents, and subconsultants of Consultant, except as otherwise specified in this Agreement. All references to City include its elected officials, officers, employees, agents, and volunteers except as otherwise specified in this Agreement. The captions of the various articles and paragraphs are for convenience and ease of reference only, and do not define, limit, augment, or describe the scope, content, or intent of this Agreement.
3.6.13 Amendment; Modification. No supplement, modification, or amendment of this Agreement shall be binding unless executed in writing and signed by both Parties.
3.6.14 Waiver. No waiver of any default shall constitute a waiver of any other default or breach, whether of the same or other covenant or condition. No waiver, benefit, privilege, or service voluntarily given or performed by a Party shall give the other Party any contractual rights by custom, estoppel, or otherwise.
3.6.15 No Third-Party Beneficiaries. There are no intended third party beneficiaries of any right or obligation assumed by the Parties.
3.6.16 Invalidity; Severability. If any portion of this Agreement is declared invalid, illegal, or otherwise unenforceable by a court of competent jurisdiction, the remaining provisions shall continue in full force and effect.
3.6.17 Prohibited Interests. Consultant maintains and warrants that it has not employed nor retained any company or person, other than a bona fide employee working solely for Consultant¬, to solicit or secure this Agreement. Further, Consultant warrants that it has not paid nor has it agreed to pay any company or person, other than a bona fide employee working solely for Consultant, any fee, commission, percentage, brokerage fee, gift or other consideration contingent upon or resulting from the award or making of this Agreement. For breach or violation of this warranty, City shall have the right to rescind this Agreement without liability. For the term of this Agreement, no member, officer or employee of City, during the term of his or her service with City, shall have any direct interest in this Agreement, or obtain any present or anticipated material benefit arising therefrom.
3.6.18 Equal Opportunity Employment. Consultant represents that it is an equal opportunity employer and it shall not discriminate against any subconsultant, employee or applicant for employment DocuSign Envelope ID: EDE94761-7485-482F-8581-3A86D6942AA9 Item: 7 55 Title: Pavement Management Plan Update
14 because of race, religion, color, national origin, handicap, ancestry, sex or age. Such non-discrimination shall include, but not be limited to, all activities related to initial employment, upgrading, demotion, transfer, recruitment or recruitment advertising, layoff or termination. Consultant shall also comply with all relevant provisions of City's Minority Business Enterprise program, Affirmative Action Plan or other related programs or guidelines currently in effect or hereinafter enacted.
3.6.19 Labor Certification. By its signature hereunder, Consultant certifies that it is aware of the provisions of Section 3700 of the California Labor Code which require every employer to be insured against liability for Worker's Compensation or to undertake self-insurance in accordance with the provisions of that Code, and agrees to comply with such provisions before commencing the performance of the Services.
3.6.20 Authority to Enter Agreement. Consultant has all requisite power and authority to conduct its business and to execute, deliver, and perform the Agreement. Each Party warrants that the individuals who have signed this Agreement have the legal power, right, and authority to make this Agreement and bind each respective Party.
3.6.21 Counterparts. This Agreement may be signed in counterparts, each of which shall constitute an original.
3.7. Subcontracting.
3.7.1 Prior Approval Required. Consultant shall not subcontract any portion of the work required by this Agreement, except as expressly stated herein, without prior written approval of City. Subcontracts, if any, shall contain a provision making them subject to all provisions stipulated in this Agreement.
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15 4. SIGNATURES.
4.1. SIGNATURES.
CITY OF LAKE FOREST Nicolas Consulting Engineers, CHTD dba NCE By: [AUTHORIZED CITY SIGNATURE]
Mark Tettemer
Mayor
By: [VENDOR SIGNATURE 1]
Margot Yapp
President
[If Corporation, TWO SIGNATURES, President
OR Vice President AND Secretary OR
Treasurer REQUIRED]
ATTEST:
By: [CITY CLERK SIGNATURE]
Lisa Berglund
City Clerk
By: [VENDOR SIGNATURE 2]
Gregory Fasiano
Secretary (Corporation or LLC)
APPROVED AS TO FORM:
By: [CITY ATTORNEY SIGNATURE]
Best Best & Krieger LLP
City Attorney
[CONTRACT ADMINISTRATOR APPROVAL]
[PROJECT MANAGER APPROVAL]
[CITY CLERK - INSURANCE APPROVAL]
DocuSign Envelope ID: EDE94761-7485-482F-8581-3A86D6942AA9 Item: 7 57 Title: Pavement Management Plan Update
16 5. EXHIBIT "A" SCOPE OF SERVICES
5.1. EXHIBIT "A" SCOPE OF SERVICES
The City is seeking assistance to update its Pavement Management Plan (PMP) as generally described in this section. This section is intended only to help describe the services that the City envisions will be required to assess the pavement condition of its public streets and update the PMP. The following description of services should not be construed as an absolute or final work plan.
The scope of work for the PMP Update shall include the following:
A. Project Management
Hold kickoff meeting to review project schedule, budget, project documents, project goals, format of deliverables and clarify responsibilities of each party. Provide routine progress updates to City’s project manager (updates may be combination of inperson or teleconference meetings and email updates).
B. Pavement Maintenance Review
Review all maintenance and rehabilitation activities conducted by the City since the last PMP update and incorporate into new assessment.
C. Quality Assurance/Quality Control (QA/QC) Plan
Develop and submit a QA/QC plan consistent with requirements contained in the OCTA Countywide Pavement Management Plan Guidelines, latest version (available at http://www.octa.net/pdf/CountywidePavementManagementPlanGuidelines.pdf). The QA/QC Plan must be approved by the City before pavement condition inspections can begin.
D. Pavement Condition Survey
Perform a pavement condition survey of public streets (arterials, collectors, and residential). The survey shall evaluate surface conditions and identify surface distresses consistent with the OCTA Countywide Pavement Management Plan Guidelines, latest version (available at http://www.octa.net/pdf/CountywidePavementManagementPlanGuidelines.pdf). Pavement inspection must be accomplished via automated distress collection. Windshield and walking surveys will not be allowed.
During pavement condition surveys, collect and confirm information on street segment characteristics including street name, functional classification, pavement surface type, pavement area, and number of travel lanes.
E. Deflection Testing
1. Evaluate the structural adequacy of street sections through the use of deflection testing.
Deflection testing would be limited to those City streets listed on the Orange County Master Plan of Arterial Highways (MPAH) network (available at www.octa.net/freewaysandstreets/streets/master-road-plan/overview/). Since calculation of PCI scores does not require or rely on deflection testing data, this deflection testing could occur after the surface distress inventory and report if needed to ensure timely completion of the PCI report.
F. Condition Assessment
Contractor will collect pavement performance data on all City maintained streets. Data is to be collected and analyzed consistent with OCTA guidelines using the StreetSaver® software, ASTM D6433 distresses, 20 asphalt and 19 concrete, to develop PCI scores for each street segment. Data is to be collected and analyzed in order to produce an overall pavement condition rating for each pavement segment including pavement analysis and budget development tasks.
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17 Any findings that may compromise data integrity and consistency should be discussed and corrected. Examples of this include differences in collecting additional distress types and unique situations that may not lend themselves to existing condition survey procedures (e.g. gap-graded mixes, edge cracking with unpaved shoulders).
G. Budgetary Analyses
Forecast future PCI values for each segment and create OCTA-required budget scenarios for each network utilizing the latest version of the StreetSaver® software. The consultant shall coordinate with City staff to develop a 7-year maintenance & rehabilitation strategy (including but not limited to selecting segments, treatment type, costs, and year of implementation). Perform all the necessary analysis using the latest version of StreetSaver® to develop PCI scores and evaluate various budget scenarios. Provide the existing conditions of the street network and the proposed rehabilitation treatments for the streets as needed. Provide an updated license of StreetSaver® software to the City and download the collected data onto the City’s computer network.
H. Deliverables
QA/QC plan
PMP database in StreetSaver®
Draft Report: provide draft report for City review and comment to include the following:
o Field data.
o Existing pavement conditions of the entire street network, arterials and the local streets. o Projected pavement conditions over the next seven years. o Recommendations for rehabilitation treatment per section over the next seven years. o Recommendations for alternative funding levels required to maintain the existing average network performance condition index.
o Recommendations for alternative funding levels required to improve the existing average network performance condition index.
Final report: provide final document which addresses any City comments. Completed OCTA PMP template in hard copy and electronic form.
I. Schedule
Work on this project will commence approximately in the July 2024. The City desires to receive a draft report of findings and recommendations by end of March and a final report by April 30 in the reporting years (i.e. 2025 and 2027). The proposal must include a proposed schedule with the above activities, deliverables, and key milestones noted. After Notice to Proceed, the Consultant shall develop a detailed schedule for review and approval by the City.
J. Additional Services –
Consultant may complete Segmentation & True Area which includes reviewing each pavement management section to determine if it needs to be updated/edited to align with the City's M&R strategy, pavement type, construction history, & geometry. Also, determining true pavement area (pavement edge to edge) for each pavement section within the database to reflect the ground truth.
DocuSign Envelope ID: EDE94761-7485-482F-8581-3A86D6942AA9 Item: 7 59 Title: Pavement Management Plan Update
18 6. EXHIBIT "B" - SCHEDULE OF SERVICES
6.1. EXHIBIT "B" - SCHEDULE OF SERVICES
The Consultant shall provide the services described in Exhibit “A” Scope of Services as directed by the City.
DocuSign Envelope ID: EDE94761-7485-482F-8581-3A86D6942AA9 Item: 7 60 Title: Pavement Management Plan Update
19 7. EXHIBIT "C" - COMPENSATION
7.1. EXHIBIT "C" - COMPENSATION
Consultant shall be paid for services in accordance with Section 3.3 of the Agreement and as described above under Exhibit “A” Scope of Services and the not to exceed fee of TWO HUNDRED FORTY-NINE THOUSAND DOLLARS ($249,000.00). Compensation shall be paid per the following schedule and terms.
Assumptions:
The cost noted above is for two cycles (2025 and 2027) of PMP Update.
Task B includes updating the City's StreetSaver database with M&R updates since the last PMP update.
Project
Mgr
QA/QC
Manager
Senior
Engr
Project
Engr
Engr/
Analyst
Snr.
Technician
Project
Administrator
Task A - Project Management 8 6 4 $ 224 $ 3,100
Task B - Pavement Maintenance Review 1 4 20 $ 120 $ 3,900 Task C - Quality Assurance/Quality
Control (QA/QC) Plan
2 4 $ 20 $ 1,000
Task D - Pavement Condition Survey 2 6 32 72 2 $ 27,669 $ 1,391 $ 42,500 Task F - Condition Assessment 1 2 16 $ 4,531 $ 169 $ 7,500 Task G - Budgetary Analysis 1 3 8 40 $ 12,075 $ 25 $ 19,800 Task H - Deliverables 1 4 16 24 8 $ 200 $ 12,200
Sub Total for 2025 PMP Update 14 21 24 24 142 72 14 $ 44,275 $ 2,149 $ 90,000 Task A - Project Management 6 8 4 $ 154 $ 2,900
Task B - Pavement Maintenance Review 1 4 16 $ 160 $ 3,400 Task C - Quality Assurance/Quality
Control (QA/QC) Plan
1 3 $ 75 $ 700
Task D - Pavement Condition Survey 2 4 32 72 2 $ 28,980 $ 1,220 $ 43,200 Task F - Condition Assessment 1 2 10 $ 4,727 $ 83 $ 6,800 Task G - Budgetary Analysis 1 3 6 36 $ 200 $ 7,000
Task H - Deliverables 1 4 16 24 6 $ 200 $ 12,000
Sub Total for 2027 PMP Update 12 18 24 22 129 72 12 $ 33,707 $ 2,092 $ 76,000 Sub Total for PMP (2025 & 2027) 26 39 48 46 271 144 26 $ 77,982 $ 4,241 $ 166,000 Project
Mgr
QA/QC
Manager
Senior
Engr
Project
Engr
Engr/
Analyst
Snr.
Technician
Project
Administrator
Task E - Deflection Testing
Task E1 - GPR Testing & Analysis 1 2 12 2 $ 22,571 $ 6,429 $ 32,000 Task E2 - FWD Testing & Analysis 1 6 20 2 $ 13,780 $ 18,700 Task E2 - Pavement Coring 1 2 16 2 $ 15,900 $ 19,300
Task I - Segmentation & True Area
(Additional Services)
1 1 6 1 $ 6,785 $ 295 $ 13,000
Sub Total for TASK E/ADDITIONAL
SERVICES
4 11 0 54 32 0 7 $ 29,356 $ 36,404 $ 83,000
Total With TASK E/ADDITIONAL
SERVICES
30 50 48 100 303 144 33 $ 107,338 $ 40,645 $ 249,000
Task Description
Hourly Breakdown by Personnel SubConsultants
Reimbursable
Expenses
Total Cost
2025 PMP Update
24 2027 PMP Update
24 32
Task Description
Hourly Breakdown by Personnel SubConsultants
Reimbursable
Expenses
Total Cost
DocuSign Envelope ID: EDE94761-7485-482F-8581-3A86D6942AA9 Item: 7 61 Title: Pavement Management Plan Update
20 Task B includes meeting with the City team to determine the pavement treatment based on PCI and developing unit cost for each of the pavement treatment; City to provide recent bid tabulations to determine the unit cost.
Task D includes fully automated survey for the entire network (~170 miles - 39 Miles MPAH & 131 miles of Residential) as per ASTM D6433.
Task D includes 5% re-inspection. This task also includes comparing the PCI data with historical data to flag any anomalies.
Task G includes 5 budget scenarios including 3 budget scenarios as per OCTA requirements.
Task G includes StreetSaver License for 3 years.
Task H includes workplan development, 1 draft report, 1 final Report, OCTA Report, OCTA GIS Deliverable, & Council Presentation.
Task E1 includes GPR testing and analysis on 40 centerline miles (80 lanes miles) of MPAH.
Task E2 includes Deflection/FWD testing on 10 centerline miles (20 lanes miles) of MPAH; FWD testing to be carried out approximately ~300 ft. in the outside continuous travel lane; Cost noted above includes 2 days of testing.
Task E3 includes extracting approximately 24 pavement cores on 10 centerline miles (20 lanes miles) of MPAH; Pavement Coring to be extracted every ~1 miles in the same lane as FWD testing.
Task E2 and E3 includes Traffic Control for Deflection testing and Pavement Coring.
Task E does not include Pavement Design, if required NCE provide an estimate for Pavement design.
Additional Services:
Task I includes reviewing each pavement management section to determine if it needs to be updated/edited to align with the City's M&R strategy, pavement type, construction history, & geometry.
Task I includes determining true pavement area (pavement edge to edge) for each pavement section within the database to reflect the ground truth.
Position Hourly Rates
Professional Services:
Principal $220/hour
Associate $200/hour
Senior $180/hour
Project $160/hour
Staff $135/hour
Technical Services:
Senior Construction Manager $130/hour
Senior Designer $135/hour
Senior Technician/Construction Inspector $100/hour
CAD Technician $110/hour
DocuSign Envelope ID: EDE94761-7485-482F-8581-3A86D6942AA9 Item: 7 62 Title: Pavement Management Plan Update
21 Senior Field Scientist $115/hour
Field Scientist $95/hour
Project Administrator $90/hour
Field/Engineering Technician $90/hour
Technical Word Processing $70/hour
Clerical $70/hour
Litigation Support (expert testimony) 300% of above rates In the event that this Agreement is renewed pursuant to Section 3.1.2, the rates set forth above may be increased or reduced each year at the time of renewal, but any increase shall not exceed the Consumer Price Index, All Urban Consumers, Los Angeles-Long Beach-Anaheim.
DocuSign Envelope ID: EDE94761-7485-482F-8581-3A86D6942AA9 Item: 7 63 Title: Pavement Management Plan Update
22 8. EXHIBIT "D" - INSURANCE REQUIREMENTS
8.1. EXHIBIT "D" - INSURANCE REQUIREMENTS
1.1.1 Time for Compliance. Consultant shall not commence work under this Agreement until it has provided evidence satisfactory to the City that it has secured all insurance required under this section. In addition, Consultant shall not allow any subconsultant to commence work on any subcontract until it has provided evidence satisfactory to the City that the subconsultant has secured all insurance required under this section.
1.1.2 Types of Insurance Required. As a condition precedent to the effectiveness of this Agreement for work to be performed hereunder, and without limiting the indemnity provisions of the Agreement, the Consultant, in partial performance of its obligations under such Agreement, shall procure and maintain in full force and effect during the term of the Agreement the following policies of insurance. If the existing policies do not meet the insurance requirements set forth herein, Consultant agrees to amend, supplement or endorse the policies to do so. (A) Commercial General Liability: Commercial General Liability Insurance which affords coverage at least as broad as Insurance Services Office "occurrence" form CG 0001, or the exact equivalent, with limits of not less than $1,000,000 per occurrence and no less than $2,000,000 in the general aggregate. Defense costs shall be paid in addition to the limits. The policy shall contain no endorsements or provisions (1) limiting coverage for contractual liability; (2) excluding coverage for claims or suits by one insured against another (cross-liability); or (3) containing any other exclusion(s) contrary to the terms or purposes of this Agreement.
(B) Automobile Liability Insurance: Automobile Liability Insurance with coverage at least as broad as Insurance Services Office Form CA 0001 covering "Any Auto" (Symbol 1), or the exact equivalent, covering bodily injury and property damage for all activities with limits of not less than $1,000,000 combined limit for each occurrence. (1) a Personal Automobile Liability policy for the Consultant's own vehicle stipulating "Automobile Liability Insurance with a limit of not less than $1,000,000 each accident"; or (2) a non-owned auto endorsement to the Commercial General Liability policy if Consultant uses vehicles of others (e.g., vehicles of employees).
(C) Workers’ Compensation: Workers' Compensation Insurance, as required by the State of California and Employer's Liability Insurance with a limit of not less than $1,000,000 per accident for bodily injury and disease.
(D) Professional Liability (Errors & Omissions): Professional Liability insurance or Errors & Omissions insurance appropriate to Consultant’s profession with limits of not less than $1,000,000. Covered professional services shall specifically include all work to be performed under the Agreement and delete any exclusions that may potentially affect the work to be performed (for example, any exclusions relating to lead, asbestos, pollution, testing, underground storage tanks, laboratory analysis, soil work, etc.). If coverage is written on a claims-made basis, the retroactive date shall precede the effective date of the initial Agreement and continuous coverage will be maintained or an extended reporting period will be exercised for a period of at least three (3) years from termination or expiration of this Agreement.
DocuSign Envelope ID: EDE94761-7485-482F-8581-3A86D6942AA9 Item: 7 64 Title: Pavement Management Plan Update
23 1.1.3 Insurance Endorsements. Required insurance policies shall contain the following provisions, or Consultant shall provide endorsements on forms approved by the City to add the following provisions to the insurance policies:
(A) Commercial General Liability:
(1) Additional Insured: The City, its officials, officers, employees, agents, and volunteers shall be additional insureds with regard to liability and defense of suits or claims arising out of the performance of the Agreement.
Additional Insured Endorsements shall not (1) be restricted to "ongoing operations"; (2) exclude "contractual liability"; (3) restrict coverage to "sole" liability of Consultant; or (4) contain any other exclusions contrary to the terms or purposes of this Agreement. For all policies of Commercial General Liability insurance, Consultant shall provide endorsements in the form of ISO CG 20 10 10 01 and 20 37 10 01 (or endorsements providing the exact same coverage) to effectuate this requirement. (2) Cancellation: Required insurance policies shall not be canceled or the coverage reduced until a thirty (30) day written notice of cancellation has been served upon the City except ten (10) days shall be allowed for non-payment of premium. (B) Automobile Liability:
(1) Cancellation: Required insurance policies shall not be canceled or the coverage reduced until a thirty (30) day written notice of cancellation has been served upon the City except ten (10) days shall be allowed for non-payment of premium. (C) Professional Liability (Errors & Omissions):
(1) Cancellation: Required insurance policies shall not be canceled or the coverage reduced until a thirty (30) day written notice of cancellation has been served upon the City except ten (10) days shall be allowed for non-payment of premium. (2) Contractual Liability Exclusion Deleted: This insurance shall include contractual liability applicable to this Agreement. The policy must “pay on behalf of” the insured and include a provision establishing the insurer’s duty to defend.
(D) Workers’ Compensation:
(1) Cancellation: Required insurance policies shall not be canceled or the coverage reduced until a thirty (30) day written notice of cancellation has been served upon the City except ten (10) days shall be allowed for non-payment of premium. (2) Waiver of Subrogation: A waiver of subrogation stating that the insurer waives all rights of subrogation against the City, its officials, officers, employees, agents, and volunteers.
1.1.4 Primary and Non-Contributing Insurance. All policies of Commercial General Liability and Automobile Liability insurance shall be primary and any other insurance, deductible, or selfinsurance maintained by the City, its officials, officers, employees, agents, or volunteers shall not contribute with this primary insurance. Policies shall contain or be endorsed to contain such provisions.
DocuSign Envelope ID: EDE94761-7485-482F-8581-3A86D6942AA9 Item: 7 65 Title: Pavement Management Plan Update
24 1.1.5 Waiver of Subrogation. All policies of Commercial General Liability and Automobile Liability insurance shall contain or be endorsed to waive subrogation against the City, its officials, officers, employees, agents, and volunteers or shall specifically allow Consultant or others providing insurance evidence in compliance with these specifications to waive their right of recovery prior to a loss. Consultant hereby waives its own right of recovery against the City, its officials, officers, employees, agents, and volunteers, and shall require similar written express waivers and insurance clauses from each of its subconsultants.
1.1.6 Deductibles and Self-Insured Retentions. Any deductible or self-insured retention must be approved in writing by the City and shall protect the City, its officials, officers, employees, agents, and volunteers in the same manner and to the same extent as they would have been protected had the policy or policies not contained a deductible or self-insured retention.
1.1.7 Evidence of Insurance. The Consultant, concurrently with the execution of the Agreement, and as a condition precedent to the effectiveness thereof, shall deliver either certified copies of the required policies, or original certificates on forms approved by the City, together with all endorsements affecting each policy. Required insurance policies shall not be in compliance if they include any limiting provision or endorsement that has not been submitted to the City for approval. The certificates and endorsements for each insurance policy shall be signed by a person authorized by that insurer to bind coverage on its behalf. At least fifteen (15 days) prior to the expiration of any such policy, evidence of insurance showing that such insurance coverage has been renewed or extended shall be filed with the City. If such coverage is cancelled or reduced and not replaced immediately so as to avoid a lapse in the required coverage, Consultant shall, within ten (10) days after receipt of written notice of such cancellation or reduction of coverage, file with the City evidence of insurance showing that the required insurance has been reinstated or has been provided through another insurance company or companies.
1.1.8 Failure to Maintain Coverage. In the event any policy of insurance required under this Agreement does not comply with these specifications or is canceled and not replaced immediately so as to avoid a lapse in the required coverage, City has the right but not the duty to obtain the insurance it deems necessary and any premium paid by City will be promptly reimbursed by Consultant or City will withhold amounts sufficient to pay premium from Consultant payments. In the alternative, City may cancel this Agreement effective upon notice.
1.1.9 Acceptability of Insurers. Each such policy shall be from a company or companies with a current A.M. Best's rating of no less than A:VII and authorized to transact business of insurance in the State of California, or otherwise allowed to place insurance through surplus line brokers under applicable provisions of the California Insurance Code or any federal law.
1.1.10 Enforcement of Contract Provisions (non estoppel). Consultant acknowledges and agrees that actual or alleged failure on the part of the City to inform Consultant of non-compliance with any requirement imposes no additional obligation on the City nor does it waive any rights hereunder.
1.1.11 Requirements Not Limiting. Requirement of specific coverage or minimum limits contained in this Appendix are not intended as a limitation on coverage, limits, or other requirement, or a waiver of any coverage normally provided by any insurance.
DocuSign Envelope ID: EDE94761-7485-482F-8581-3A86D6942AA9 Item: 7 66 Title: Pavement Management Plan Update
25 1.1.12 Insurance for Subconsultants. Consultant shall include all subconsultants engaged in any work for Consultant relating to this Agreement as additional insureds under the Consultant's policies, or the Consultant shall be responsible for causing subconsultants to purchase the appropriate insurance in compliance with the terms of these Insurance Requirements, including adding the City, its officials, officers, employees, agents, and volunteers as additional insureds to the subconsultant's policies. All policies of Commercial General Liability insurance provided by Consultant’s subconsultants performing work relating to this Agreement shall be endorsed to name the City, its officials, officers, employees, agents and volunteers as additional insureds using endorsement form ISO CG 20 38 04 13 or an endorsement providing equivalent coverage. Consultant shall not allow any subconsultant to commence work on any subcontract relating to this Agreement until it has received satisfactory evidence of subconsultant’s compliance with all insurance requirements under this Agreement, to the extent applicable. The Consultant shall provide satisfactory evidence of compliance with this section upon request of the City.
DocuSign Envelope ID: EDE94761-7485-482F-8581-3A86D6942AA9 Item: 7 67 CITY COUNCIL AGENDA REPORT
MEETING DATE: 7/16/2024
DEPARTMENT: Public Works
SUBJECT:
AWARD CONSTRUCTION CONTRACT FOR ROCKFIELD BOULEVARD
MEDIAN IMPROVEMENT PROJECT (24S09)
RECOMMENDED ACTION(S):
1. Approve contract documents for construction of the Rockfield Boulevard Median Improvement Project (24S09).
2. Adopt a Resolution entitled, “A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF LAKE FOREST, CALIFORNIA, AMENDING THE 2023- 2030 CAPITAL IMPROVEMENT PLAN; AMENDING APPROPRIATIONS
FOR FISCAL YEAR 2024-25.”
3. Award a contract in the amount of $244,426 to IE General Engineering, Inc.
4. Authorize the Mayor to sign, and the City Clerk to attest the contract with IE General Engineering, Inc.
5. Reject all other bids received and authorize return of the bid bonds upon receipt of the executed contract documents from IE General Engineering, Inc.
EXECUTIVE SUMMARY:
The Rockfield Boulevard Median Improvement project would replace the existing painted median and stick down delineators with a raised hardscaped median to improve traffic safety along Rockfield Boulevard south of Lake Forest Drive.
On May 23, 2024, the City received bids from four (4) bidders, ranging from $244,426 to $302,192. The apparent low bidder is IE General Engineering, Inc. (“IE General”). The total project cost to construct, inspect, provide construction support, and provide contingency for the project is estimated to cost $410,000.
Item: 8
68 This project would be funded by the City’s General Fund. The engineer’s estimate for this project was $230,000. The attached proposed budget resolution would appropriate unallocated funds from the City’s General Fund (Capital).
Staff recommends the City Council approve the proposed budget amendment to ensure there is sufficient funding for the project and award the proposed construction contract to IE General in the amount of $244,426. The Finance Department prepared the proposed construction contract with IE General, and the City Attorney has reviewed and approved the contract as to form.
BACKGROUND:
The City utilizes consultants to provide street and traffic design services for its 2021-2028 Capital Improvement Plan (“CIP”) projects. In a memo dated April 22, 2021, the City Manager approved the Request for Proposal (“RFP”) for Street & Traffic Design Services and authorized staff to solicit proposals. On May 19, 2021, the City issued the RFP on the City’s electronic bid management system to secure consultants for twelve (12) street and traffic design projects. The City Council awarded five of the twelve design projects to Tait & Associates (“Tait”) at the December 21, 2021, City Council meeting. Since that time, one project has been designed and constructed, this project is ready for construction, another project design is completed and waiting for right of way, and two projects are in final design to be bid out as future pavement projects. On November 14, 2023, the City Manager authorized the RFP for Construction Administration and Construction Inspection Services for inspection of five projects, including the Rockfield Boulevard Median Improvement Project. Staff simultaneously advertised the project for construction through the City’s eProcurement portal on April 25, 2024. The City Council awarded the construction management contract on May 7, 2024.
DISCUSSION:
This project would remove the existing painted median and stick down delineators and construct a raised hardscape median on Rockfield Boulevard south of Lake Forest Drive. The construction of the raised median would enhance safety and may reduce the risk of accidents and/or collisions.
On May 23, 2024, the City received bids from four (4) firms, ranging from $244,426 to $302,192. The engineer’s estimate for this project was $230,000.
Staff reviewed the apparent low bid package submitted by IE General for completeness. The electronic bidding system the City utilizes eliminates mathematical errors in the bids; therefore, the submitted bid results are as follows:
Item: 8
69 Table 1: Bid Results
Contracting Firm OpenGov Verified
Total Bid Amounts
IE General Engineering, Inc. $244,426
Excel Paving Company $257,320
EBS General Engineering, Inc. $292,893
Gentry General Engineering, Inc. $302,192
Following the analysis of the bids received, staff determined that IE General was the lowest responsive, responsible bidder for this project. In 2022, IE General completed the Sports Park Paver Replacement Project in Lake Forest. More recently, IE General completed projects in the cities of Temecula, Jurupa Valley, and Norco. Staff conducted a reference check that indicated IE General is a responsible contractor (Attachment 2).
Upon approval of the award of the contract, staff anticipates construction would begin in August 2024. The construction contract specifies 30 working days with the work anticipated to be completed by October 2024.
The Finance Department prepared the proposed Construction Contract with IE General, which IE General subsequently signed (Attachment 3). The City Attorney reviewed and approved the contract as to form. The contract bid amount as determined by the estimated quantities is $244,426. Per Lake Forest Municipal Code Section 3.13.085, the City Manager may approve additional work not-to-exceed 10% of the final contract amount ($24,443).
The total cost to construct, inspect, provide construction support, and provide contingency for the project is estimated to be approximately $410,000. There are $200,000 allocated for construction of this project in the 2023-2030 Capital Improvement Plan. The attached proposed budget resolution would allocate funds from the City’s General Fund to provide additional funding needed for the Rockfield Boulevard Median Improvement Project. If adopted, the proposed budget resolution would increase funding for the 2023-2030 Capital Improvement Plan by $210,000, bringing the total funding for the project to $410,000.
FISCAL IMPACT:
Approving the recommended actions would award a construction contract to IE General Engineering, Inc. in the amount of $244,426 and allocate sufficient funding in the 2023-2030 CIP budget for the project. The total estimated project Item: 8
70 cost, including construction, inspection, construction support, and contingency is $410,000.
The attached proposed budget resolution would appropriate unallocated funds from the City’s General Fund to provide the additional funding needed for the Rockfield Boulevard Median Improvement Project. If adopted, the proposed budget resolution would increase funding for the 2023-2030 Capital Improvement Plan by $210,000 bringing total funding for the project to a total of $410,000.
ATTACHMENTS:
1. Location Map
2. Contractor’s Reference Check
3. Contract with IE General Engineering, Inc.
4. Signed Title Sheet
5. Proposed Budget Resolution
Initiated By: Jonathan Claudio, Principal Civil Engineer Submitted By: Thomas E. Wheeler, P.E., Director of Public Works/City Engineer Approved By: Keith Neves, Assistant City Manager
Item: 8
71 Attachment 1
Item: 8
72 MEDIAN PROJECT
VICINITY MAP
Item: 8
73 Attachment 2
Item: 8
74 Apparent Low Bidder: Contact #1: Contact #2: Contact #3:
IE General Engineering, Inc. City of Temecula City of Jurupa Valley City of Norco Name Laura Bragg Youssef Baskaron Sam Nelson
Phone No. (951) 308-6367 (951) 332-6464 (951) 270-5677
E-mail [email protected] [email protected] [email protected]
QUESTION RESPONSE RESPONSE RESPONSE
1. Title and type of project Ronald Reagan Sports Park Restroom Expansion & Renovation
Sunnyslope Sidewalk Safe Route to
School 3rd Street Improvements
2. Contract Amount $311,496 $2,264,672 $870,000
3. Approximate duration July 2022 - Oct 2022 July 2023 - Dec 2023 June 2023 - Sept 2023
4. Actual or estimated project completion date October-22 January-24 September-23
5. Quality of the work Very Good Good Good
6. Similarity of the Project Ok Ok Very Good
7. Contractor’s relationship with agency representatives Good Good Ok, after expectations set
8. Claims or stop notices No No No
9. Change order requests Yes, requested by City. Yes, due to design issues Yes, but not large
10. Agency’s desire to have contractor bid on future projects Yes Yes Yes
11. Additional Comments Constantly in communication w/
contractor
Mom & Pop company w/ good foreman
(Jesse) Contractor lacked traffic control at times
ROCKFIELD BOULEVARD MEDIAN IMPROVEMENTS (24S09)
Item: 8
75 Attachment 3
Item: 8
76 ROCKFIELD BOULEVARD MEDIAN IMPROVEMENT PROJECT
(2024-075)
City of Lake Forest
100 Civic Center Dr.
Lake Forest, CA 92630
DocuSign Envelope ID: BEE7B41C-6E37-43D2-B91D-4C1E3F979007 Item: 8 77 City of Lake Forest
Section 00500 Construction Contract
Rockfield Boulevard Median Improvement Project
I. SECTION 00500 CONSTRUCTION CONTRACT ........................................
DocuSign Envelope ID: BEE7B41C-6E37-43D2-B91D-4C1E3F979007 Item: 8 78 Title: Rockfield Boulevard Median Improvement Project 3 1. SECTION 00500 CONSTRUCTION CONTRACT
1.1. CONTRACT
THIS CONTRACT is made this [***INSERT DAY***] day of [***INSERT MONTH***], [***INSERT YEAR***], in the County of Orange, State of California, by and between the City of Lake Forest hereinafter called City, and I.E. General Engineering Inc., hereinafter called Contractor. City and the Contractor for the considerations stated herein agree as follows:
1.2. SCOPE OF WORK
The Contractor shall perform all Work within the time stipulated the contract and shall provide all labor, materials, equipment, tools, utility services, and transportation to complete all of the Work required in strict compliance with the Contract Documents as specified in "COMPONENT PARTS OF THE CONTRACT" section below for the following Project:
Rockfield Boulevard Median Improvement Project, 24S09
The Contractor and its surety shall be liable to City for any damages arising as a result of the Contractor’s failure to comply with this obligation.
1.3. TIME FOR COMPLETION
The Work shall be commenced on the date stated in City’s Notice to Proceed. The Contractor shall complete all Work required by the Contract Documents within thirty (30) working days from the commencement date stated in the Notice to Proceed. By its signature hereunder, Contractor agrees the time for completion set forth above is adequate and reasonable to complete the Work.
1.4. CONTRACT PRICE
City shall pay to the Contractor as full compensation for the performance of the Contract, subject to any additions or deductions as provided in the Contract Documents, and including all applicable taxes and costs, the sum of TWO HUNDRED AND FORTY-FOUR THOUSAND FOUR HUNDRED TWENTY-SIX DOLLARS ($244,426.00). Payment shall be made as set forth in the General Conditions.
1.5. LIQUIDATED DAMAGES
In accordance with Government Code section 53069.85, it is agreed that the Contractor will pay City the sum of one thousand five hundred dollars ($1,500) for each and every calendar day of delay beyond the time prescribed in the Contract Documents for finishing the Work, as Liquidated Damages and not as a penalty or forfeiture. In the event that Liquidated Damages are not paid, the Contractor agrees City may deduct that amount from any money due or that may become due the Contractor under the Contract.
This Article does not affect the City’s rights to other damages or remedies specified in the Contract Documents or allowed by law.
1.6. COMPONENT PARTS OF THE CONTRACT
The “Contract Documents” include the following:
Notice Inviting Bids
DocuSign Envelope ID: BEE7B41C-6E37-43D2-B91D-4C1E3F979007 Item: 8 79 Title: Rockfield Boulevard Median Improvement Project 4 Instructions to Bidders
Bid Form
Contractor’s Certificate Regarding Workers’ Compensation Bid Bond
Designation of Subcontractors
Information Required of Bidders
Noncollusion Declaration form
Iran Contracting Act Certification
Public Works Contractor Registration Certification
Contract
Performance Bond
Payment Bond
General Conditions
Special Conditions
Technical Specifications
Addenda
Plans and Drawings
Approved and fully executed change orders
Any other documents contained in or incorporated into the Contract The Contactor shall complete the Work in strict accordance with all of the Contract Documents.
All of the Contract Documents are intended to be complementary. Work required by one of the Contract Documents and not by others shall be done as if required by all. This Contract shall supersede any prior agreement of the parties.
1.7. PROVISIONS REQUIRED BY LAW
Each and every provision of law required to be included in these Contract Documents shall be deemed to be included in these Contract Documents. The Contractor shall comply with all requirements of applicable federal, state and local laws, rules and regulations, including, but not limited to, the provisions of the California Labor Code and California Public Contract Code which are applicable to this Project.
DocuSign Envelope ID: BEE7B41C-6E37-43D2-B91D-4C1E3F979007 Item: 8 80 Title: Rockfield Boulevard Median Improvement Project 5 1.8. INDEMNIFICATION
Contractor shall provide indemnification as set forth in the General Conditions.
1.9. PREVAILING WAGES
Contractor shall be required to pay the prevailing rate of wages in accordance with the Labor Code which such rates shall be made available at City Hall or may be obtained online at http//www.dir.ca.gov/dlsr. and which must be posted at the job site.
1.10. SIGNATURES
IN WITNESS WHEREOF, this Contract has been duly executed by the above-named parties, on the day and year above written.
I.E. General Engineering Inc
By [VENDOR SIGNATURE 1]
Name: Gene M. Parker
Title: President
License No. [CONTRACTOR LICENSE NUMBER]
CITY OF LAKE FOREST
By [AUTHORIZED CITY SIGNATURE]
______________________________
Mark Tettemer
Mayor
By [VENDOR SIGNATURE 2]
Name: [Gene M. Parker
Title: [Secretary (Corporation or LLC)
(If Corporation, TWO SIGNATURES, President OR
Vice President AND Secretary OR Treasurer
REQUIRED)]
Attest:
[CITY CLERK SIGNATURE]
Lisa Berglund
City Clerk
DocuSign Envelope ID: BEE7B41C-6E37-43D2-B91D-4C1E3F979007 1015380
Item: 8
81 Title: Rockfield Boulevard Median Improvement Project 6 [CONTRACT ADMINISTRATOR APPROVAL]
[PROJECT MANAGER APPROVAL]
[CITY CLERK - INSURANCE APPROVAL]
Approved as to Form:
[CITY ATTORNEY SIGNATURE]
__________________________________
Best Best & Krieger, LLP
City Attorney
DocuSign Envelope ID: BEE7B41C-6E37-43D2-B91D-4C1E3F979007 Item: 8 82 Attachment 4
Item: 8
83 GENERAL NOTES:
MEDIAN PROJECT
VICINITY MAP
SIGNING & STRIPING GENERAL NOTES:
PROJECT MAP
NOTICE TO CONTRACTOR:
GENERAL TRAFFIC SIGNAL NOTES:
4/9/20
24 3/7/2
024
Item: 8
84 ATTACHMENT 5
Item: 8
85 RESOLUTION NO. 2024-
A RESOLUTION OF THE CITY COUNCIL OF THE
CITY OF LAKE FOREST, CALIFORNIA, AMENDING
THE 2023-2030 CAPITAL IMPROVEMENT PLAN;
AMENDING APPROPRIATIONS FOR FISCAL YEAR
2024-25
WHEREAS, the 2023-2030 Capital Improvement Plan was adopted by the City Council on June 20, 2023; and
WHEREAS, the appropriations for Fiscal Year 2024-25 were adopted by the City Council on June 4, 2024;
WHEREAS, modifications are now required as a result of changes during Fiscal Year 2024-25.
NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF LAKE
FOREST DOES HEREBY RESOLVE, DETERMINE, FIND AND ORDER AS FOLLOWS:
Section 1. The City Council’s adoption of this Resolution is not a project within the meaning of the California Environmental Quality Act. Specifically, the City’s adoption of the Resolution is an administrative and fiscal function of the City that does not commit the City to any specific project or course of action. (State CEQA Guidelines, sections 15378(b)(4) & (b)(5).) Thus, no environmental review of the Resolution is required. The City Council hereby directs staff to prepare, execute and file with the Orange County Clerk a Notice of Exemption within five working days of the adoption of this Resolution.
Section 2. The General Fund Capital Fund is amended to increase its Capital Improvement Plan Appropriations for Fiscal Year 2024-25 as demonstrated in Exhibit A.
Section 3. The Director of Finance is hereby authorized to move appropriations between programs within program area budgets in concurrence with Department Directors.
Section 4. The City Manager is hereby authorized to transfer appropriations from one program area to another or between funds within the Operating Budget with notification to the City Council Audit Committee.
Item: 8
86 Section 5. The City Manager is hereby authorized to transfer appropriations from a capital improvement project to another existing project within the adopted Capital Improvement Program with notification to the City Council Audit Committee.
Section 6. The City Clerk shall attest as to the adoption and execution of this Resolution and cause the same to be maintained in the permanent records of the City.
PASSED, APPROVED AND ADOPTED this 16th day of July 2024, by the following vote, to wit:
ATTEST:
MARK TETTEMER
MAYOR
LISA BERGLUND
CITY CLERK
APPROVED AS TO FORM:
MATTHEW RICHARDSON
CITY ATTORNEY
Item: 8
87 STATE OF CALIFORNIA )
COUNTY OF ORANGE ) SS
CITY OF LAKE FOREST )
I, Lisa Berglund, City Clerk of the City of Lake Forest, California, do hereby certify that the foregoing Resolution No. 2024- was duly passed and adopted at a regular meeting of the Lake Forest City Council on the 16th day of July 2024, by the following vote, to wit:
AYES: COUNCIL MEMBERS:
NOES: COUNCIL MEMBERS:
ABSTAIN: COUNCIL MEMBERS:
ABSENT: COUNCIL MEMBERS:
LISA BERGLUND
CITY CLERK
Item: 8
88 EXHIBIT A
AMENDMENT TO THE 2023-2030
CAPITAL IMPROVEMENT PLAN,
AMENDMENT TO FISCAL YEAR
2024-25 APPROPRIATIONS
Capital Improvement Plan Appropriations
Funding Source Project
Current
Budget
Increase
(Decrease)
Amended
Budget
General Fund
CIP Projects
Arterial Median
Improvement
Project $200,000 $210,000 $410,000
Total $410,000
Item: 8
89 CITY COUNCIL AGENDA REPORT
MEETING DATE: 7/16/2024
DEPARTMENT: Public Works
SUBJECT:
AWARD CONSTRUCTION CONTRACT FOR SLURRY SEAL PROJECT FOR ARTERIAL STREETS: MUIRLANDS BLVD. FROM BAKE PARKWAY TO LOS ALISOS BLVD. AND JERONIMO ROAD FROM BAKE PARKWAY TO LOS ALISOS BLVD. (PW 2021-05B)
RECOMMENDED ACTION(S):
1. Approve contract documents for construction of Slurry Seal Project for Arterial Streets: Muirlands Boulevard from Bake Parkway to Los Alisos Boulevard and Jeronimo Road from Bake Parkway to Los Alisos Boulevard PW 2021-05B.
2. Award a Construction Contract in the amount of $1,758,120 to VSS International, Inc.
3. Authorize the Mayor to sign, and the City Clerk to attest the contract with VSS International, Inc.
4. Reject all other bids received and authorize return of the bid bonds upon receipt of the executed contract documents from VSS International, Inc.
EXECUTIVE SUMMARY:
The Slurry Seal for Arterial Streets Project extends the life of the asphalt for two of the City's arterial roadways (Jeronimo Road, Muirlands Boulevard). In a memo dated February 6, 2024, the City Manager authorized staff to solicit bids for construction of the Slurry Seal for Arterial Streets Project (PW 2021-05B). On June 6, 2024, the City received five (5) bids for this project ranging from $1,758,120 to $1,976,200. The apparent low bidder is VSS International, Inc. (“VSS”). The total project cost to construct, inspect, provide construction support, and provide contingency for the project is estimated to cost $2,000,000.
This project is funded by the Measure M2 Fairshare, Infrastructure Reserve, and Road Maintenance Rehabilitation Account (“SB1”) Funds as well as a $248,199 state grant. The engineer’s estimate for this project was $1,673,000.
Item: 9
90 BACKGROUND:
The City has an established annual street maintenance program to slurry seal and asphalt overlay public streets. As a requirement of OCTA’s Measure M funding, the City utilizes a pavement management system to evaluate and score the condition of each street biannually utilizing a Pavement Condition Index (“PCI”). The pavement management system provides recommendations to maintain a street’s condition based on the PCI rating. The overall PCI for the entire City is 77 or rated “Good.” Typically, the City performs slurry seal applications in seven-year intervals and resurfaces streets on an as needed basis with available funding.
This project would perform localized asphalt repairs and slurry seal both Jeronimo Road from Bake Parkway to Los Alisos Boulevard and Muirlands Boulevard from Bake Parkway to Los Alisos Boulevard.
DISCUSSION:
After review of the 2021 Pavement Management Plan ("PMP") staff identified two arterial streets that required a type II slurry treatment. The two roadway sections are Jeronimo Road from Bake Parkway to Los Alisos Boulevard (“Jeronimo”), Muirlands Boulevard from Bake Parkway to Los Alisos Boulevard (“Muirlands”), (Attachment 1). As part of the slurry seal program, staff also identified locations on the streets that require structural repairs in addition to the slurry seal. The contractor would perform these localized repairs prior to the application of the slurry seal.
The project would also replace all existing traffic striping, markings, and legends on Jeronimo and Muirlands. The proposed project would use approximately 1,300 extra-long tons of type II slurry to seal the existing pavement surface. In addition, the project would remove and replace approximately 150,000 square feet of deteriorated pavement on Muirlands and Jeronimo. By addressing the localized repairs and slurry sealing, the City reduces expensive reconstruction costs by extending the useful life of the pavement without the need for full resurfacing of the asphalt.
Upon approval of the award of the contract, staff anticipates that construction would begin on the project in September 2024. The construction contract specifies 70 working days with the work anticipated to be complete in December 2024.
On June 6, 2024, the City received bids from five (5) firms, ranging from $1,758,120 to $1,976,200. The engineer’s estimate for this project is Item: 9
91 $1,673,000. The total project cost to construct, inspect, provide construction support, and provide contingency for the project is estimated to cost $2,000,000.
Staff reviewed the VSS bid package for completeness. In addition, the electronic bidding system the City utilizes eliminates mathematical errors in the bids, therefore the submitted bid results are as follows:
Contracting Firm OpenGov Verified Base Bid
Amounts
VSS International, Inc. $1,758,120
All-American Asphalt $1,818,499
Pavement Coatings Co. $1,876,600
Roy Allan Slurry Seal, Inc. $1,972,091
American Asphalt South, Inc. $1,976,200
After analysis of the bids received, staff determined that VSS was the lowest responsive, responsible bidder for this project. Recently, VSS completed projects in the cities of San Diego, Tulare, and Turlock. Staff conducted a reference check that indicated VSS is a responsible contractor. (Attachment 2) The Finance Department prepared the contract which VSS subsequently executed (Attachment 3). The City Attorney reviewed and approved the contract as to form. The contract bid amount as determined by the estimated quantities is $1,758,120. Per Lake Forest Municipal Code Section 3.13.085, the City Manager may approve additional work not-to-exceed 10% of the final contract amount (i.e., $175,812). Due to size, the contract plans and specifications are not attached to the agenda; however, they are available for review on the City’s webpage or upon request in the Office of the City Clerk. Staff has attached the approved signed title sheet for the project (Attachment 4).
The Muirlands and Jeronimo slurry seal work was originally budgeted for FY 2021-23 of the Capital Improvement Plan (“CIP”), so there are sufficient funds available in the M2/SB1/Infrastructure reserve funds. The project was delayed to wait for a $248,199 state grant from the Coronavirus Response and Relief Supplemental Appropriations Act of 2021 (”CRRSAA“) State Exchange fund for pavement rehabilitation.
FISCAL IMPACT:
Approving the recommended action would award a Construction Contract to VSS in the amount of $1,758,120. The total estimated project cost, including construction, inspection, construction support, and contingency is $2,000,000.
Item: 9
92 There are sufficient funds available in the M2/SB1/Infrastructure reserve funds. In addition, the City also received a $248,199 state grant from the CRRSAA State Exchange fund for pavement rehabilitation.
ATTACHMENTS:
1. Location Map
2. Contractor’s Reference Check
3. Contract with VSS International, Inc.
4. Signed Title Sheet
Initiated By: Douglas Erdman, Assistant City Engineer
Submitted By: Thomas E. Wheeler, P.E., Director of Public Works/City Engineer Approved By: Keith Neves, Assistant City Manager
Item: 9
93 Attachment 1
Item: 9
94 Item: 9
95 Attachment 2
Item: 9
96 SLURRY SEAL PROJECT FOR ARTERIAL STREETS: MUIRLANDS BLVD. FROM BAKE PARKWAY TO LOS ALISOS BLVD. AND JERONIMO ROAD FROM BAKE PARKWAY TO LOS ALISOS BLVD. (PW 2021- 05B)
Apparent Low Bidder: Contact #1: Contact #2: Contact #3:
VSS International, Inc. City of El Cerrito County of Tulare City of Turlock Name
Phone No.
E-mail
Gerardo Avila Claudia Sanchez
(559) 636-5005
Charlotte Calvario
(510) 215-4300 (209)668-6029
[email protected] [email protected] [email protected]
QUESTION RESPONSE RESPONSE
1. Title and type of project
2. Contract Amount
2023 Slurry Seal Project C3027-23 2023 Slurry Seal Program Slurry Seals 2023 Project No. 21-033 $969,739
60 Working days
August-23
Good
$686,120
30 Days
November-23
Good
$3,312,000
60 working days
June 21, 2024
Good
3. Approximate duration
4. Actual or estimated project completion date
5. Quality of the work
6. Similarity of the Project Good Very good.
Very good.
No
Very good.
7. Contractor’s relationship with agency representatives Good
8. Claims or stop notices
Good
No No
9. Change order requests No No Yes
10. Agency’s desire to have contractor bid on future projects
11. Additional Comments
Yes
N/A
Yes
N/A
Yes
VSS is a good contractor to work with.
Item: 9
97 Attachment 3
Item: 9
98 SLURRY SEAL PROJECT FOR ARTERIAL STREETS: MUIRLANDS
BLVD. FROM BAKE PARKWAY TO LOS ALISOS BLVD. AND
JERONIMO ROAD FROM BAKE PARKWAY TO LOS ALISOS BLVD.
(2024-076)
City of Lake Forest
100 Civic Center Dr.
Lake Forest, CA 92630
DocuSign Envelope ID: 6F2784E5-0932-47BF-80F5-9BE1F9555FBC Item: 9 99 City of Lake Forest
Section 00500 Construction Contract
Slurry Seal Project for Arterial Streets: Muirlands Blvd. from Bake Parkway to Los Alisos Blvd. and Jeronimo Road from Bake Parkway to Los Alisos Blvd.
I. SECTION 00500 CONSTRUCTION CONTRACT ........................................
DocuSign Envelope ID: 6F2784E5-0932-47BF-80F5-9BE1F9555FBC Item: 9 100
Title: Slurry Seal Project for Arterial Streets: Muirlands Blvd. from Bake Parkway to Los Alisos Blvd. and Jeronimo Road from Bake Parkway to Los Alisos Blvd.
3 1. SECTION 00500 CONSTRUCTION CONTRACT
1.1. CONTRACT
THIS CONTRACT is made this [***INSERT DAY***] day of [***INSERT MONTH***], [***INSERT YEAR***], in the County of Orange, State of California, by and between the City of Lake Forest hereinafter called City, and VSS International, Inc., hereinafter called Contractor. City and the Contractor for the considerations stated herein agree as follows:
1.2. SCOPE OF WORK
The Contractor shall perform all Work within the time stipulated the contract and shall provide all labor, materials, equipment, tools, utility services, and transportation to complete all of the Work required in strict compliance with the Contract Documents as specified in "COMPONENT PARTS OF THE CONTRACT" section below for the following Project:
Slurry Seal Project for Arterial Streets: Muirlands Blvd. from Bake Parkway (Irvine/Lake Forest City Line) to Los Alisos Blvd. (Lake Forest/Mission Viejo City Line) Jeronimo Road from Bake Parkway (Irvine/Lake Forest City Line) to Los Alisos Blvd. (Lake Forest/Mission Viejo City Line) , PW 2021-05B The Contractor and its surety shall be liable to City for any damages arising as a result of the Contractor’s failure to comply with this obligation.
1.3. TIME FOR COMPLETION
The Work shall be commenced on the date stated in City’s Notice to Proceed. The Contractor shall complete all Work required by the Contract Documents within seventy (70) working days from the commencement date stated in the Notice to Proceed. By its signature hereunder, Contractor agrees the time for completion set forth above is adequate and reasonable to complete the Work.
1.4. CONTRACT PRICE
City shall pay to the Contractor as full compensation for the performance of the Contract, subject to any additions or deductions as provided in the Contract Documents, and including all applicable taxes and costs, the sum of ONE MILLION SEVEN HUNDRED AND FIFTY-EIGHT THOUSAND ONE HUNDRED AND TWENTY DOLLARS ($1,758,120.00). Payment shall be made as set forth in the General Conditions.
1.5. LIQUIDATED DAMAGES
In accordance with Government Code section 53069.85, it is agreed that the Contractor will pay City the sum of $2,500 for each and every calendar day of delay beyond the time prescribed in the Contract Documents for finishing the Work, as Liquidated Damages and not as a penalty or forfeiture. In the event that Liquidated Damages are not paid, the Contractor agrees City may deduct that amount from any money due or that may become due the Contractor under the Contract. This Article does not affect the City’s rights to other damages or remedies specified in the Contract Documents or allowed by law.
1.6. COMPONENT PARTS OF THE CONTRACT
The “Contract Documents” include the following:
DocuSign Envelope ID: 6F2784E5-0932-47BF-80F5-9BE1F9555FBC Item: 9 101
Title: Slurry Seal Project for Arterial Streets: Muirlands Blvd. from Bake Parkway to Los Alisos Blvd. and Jeronimo Road from Bake Parkway to Los Alisos Blvd.
4 Notice Inviting Bids
Instructions to Bidders
Bid Form
Contractor’s Certificate Regarding Workers’ Compensation Bid Bond
Designation of Subcontractors
Information Required of Bidders
Noncollusion Declaration form
Iran Contracting Act Certification
Public Works Contractor Registration Certification
Contract
Performance Bond
Payment Bond
General Conditions
Special Conditions
Technical Specifications
Addenda
Plans and Drawings
Approved and fully executed change orders
Any other documents contained in or incorporated into the Contract The Contactor shall complete the Work in strict accordance with all of the Contract Documents.
All of the Contract Documents are intended to be complementary. Work required by one of the Contract Documents and not by others shall be done as if required by all. This Contract shall supersede any prior agreement of the parties.
1.7. PROVISIONS REQUIRED BY LAW
Each and every provision of law required to be included in these Contract Documents shall be deemed to be included in these Contract Documents. The Contractor shall comply with all requirements of applicable federal, state and local laws, rules and regulations, including, but not limited to, the provisions of the California Labor Code and California Public Contract Code which are applicable to this Project.
DocuSign Envelope ID: 6F2784E5-0932-47BF-80F5-9BE1F9555FBC Item: 9 102
Title: Slurry Seal Project for Arterial Streets: Muirlands Blvd. from Bake Parkway to Los Alisos Blvd. and Jeronimo Road from Bake Parkway to Los Alisos Blvd.
5 1.8. INDEMNIFICATION
Contractor shall provide indemnification as set forth in the General Conditions.
1.9. PREVAILING WAGES
Contractor shall be required to pay the prevailing rate of wages in accordance with the Labor Code which such rates shall be made available at City Hall or may be obtained online at http//www.dir.ca.gov/dlsr. and which must be posted at the job site.
1.10. SIGNATURES
IN WITNESS WHEREOF, this Contract has been duly executed by the above-named parties, on the day and year above written.
VSS International, Inc.
By [VENDOR SIGNATURE 1]
Name: Jeff Roberts
Title: Vice President
License No. [CONTRACTOR LICENSE NUMBER]
CITY OF LAKE FOREST
By [AUTHORIZED CITY SIGNATURE]
______________________________
Mark Tettemer
Mayor
By [VENDOR SIGNATURE 2]
Name: [Jordan X. Reed
Title: [Secretary (Corporation or LLC)
(If Corporation, TWO SIGNATURES, President OR
Vice President AND Secretary OR Treasurer
REQUIRED)]
Attest:
[CITY CLERK SIGNATURE]
Lisa Berglund
City Clerk
DocuSign Envelope ID: 6F2784E5-0932-47BF-80F5-9BE1F9555FBC 293727 A,B,C12
Item: 9
103
Title: Slurry Seal Project for Arterial Streets: Muirlands Blvd. from Bake Parkway to Los Alisos Blvd. and Jeronimo Road from Bake Parkway to Los Alisos Blvd.
6 [CONTRACT ADMINISTRATOR APPROVAL]
[PROJECT MANAGER APPROVAL]
[CITY CLERK - INSURANCE APPROVAL]
Approved as to Form:
[CITY ATTORNEY SIGNATURE]
__________________________________
Best Best & Krieger, LLP
City Attorney
DocuSign Envelope ID: 6F2784E5-0932-47BF-80F5-9BE1F9555FBC Item: 9 104
Attachment 4
Item: 9
105
CITY OF LAKE FOREST
Slurry Seal Project for Arterial Streets:
Muirlands Blvd.
from Bake Parkway (Irvine/Lake Forest City Line)
to Los Alisos Blvd. (Lake Forest/Mission Viejo City Line) Jeronimo Road
from Bake Parkway (Irvine/Lake Forest City Line)
to Los Alisos Blvd. (Lake Forest/Mission Viejo City Line) PW 2021-05B
Federal Aid Project #: CRAL-5469(019)
April 2024
Prepared By:
CITY OF LAKE FOREST
Public Works Department
100 Civic Center Drive
Lake Forest, CA 92630
___ _____
.
Under the Supervision Of:
CITY OF LAKE FOREST
Public Works Department
25550 Commercentre Drive, Suite 100
Lake Forest, CA 92630
Item: 9
106
Item: 9
107
CITY COUNCIL AGENDA REPORT
MEETING DATE: 7/16/2024
DEPARTMENT: City Manager
SUBJECT:
CONSIDER OPTING INTO A NATIONAL OPIOID SETTLEMENT AGREEMENT
WITH KROGER
RECOMMENDED ACTION(S):
1. Opt into the settlement agreement with Kroger and allocate the City’s portion of the settlement funds to the County of Orange, and direct the City Manager to execute any documents necessary to implement the action.
2. Grant the City Manager authority to execute and enter into future agreements related to the nation-wide opioid settlements.
EXECUTIVE SUMMARY:
States and cities across the United States have brought litigation against regional supermarket pharmacy Kroger Co. related to alleged misconduct to opioids painkillers. A proposed nationwide settlement agreement has been reached that would resolve the legal claims and require Kroger Co. to pay approximately $1.4 billion.
The City can opt into the settlement agreement, thereby releasing its claims against Kroger Co. The funds are restricted to certain opioid abatement or remediation uses. The City can either allow the funds to be used by the County of Orange or elect to use the funds itself subject to twelve years of reporting requirements to the state. Alternatively, the City can take no action, thereby opting out of the settlements, while maintaining its right to pursue litigation against Kroger Co.
BACKGROUND:
Litigation brought by states, cities, local political subdivisions, special districts, and tribes across the United States (“subdivisions”) against manufacturers and pharmaceutical distributors of opioid painkillers (“opioid distributors”) has resulted in settlements requiring the opioid distributors to pay billions of dollars to abate the opioid epidemic. The settlements have totaled over $20 billion to date. Of this Item: 10
108
amount, approximately $17 billion will be used by participating states and subdivisions to remediate and abate the impacts of the opioid crisis. • Kroger Settlement: A proposed multi-state settlement with Kroger dated March 22, 2024 (Attachments 1 and 2) has been offered totaling approximately $1.4 billion (“Kroger settlement”). The proposed settlement also requires Kroger to provide injunctive relief relating to opioid dispensing practices and preventing diversion of prescription opioids. • Allocation of Funds: California is expected to receive approximately $120 million and is to distribute these funds pursuant to the proposed Kroger settlement allocation formula. The terms of the Kroger settlement is nearly identical to previous opioid settlement agreements and allocate the funds as follows: 15% to the subdivision fund, 15% to the state fund; and 70% to the abatement accounts fund.
o Subdivision Fund. 15% percent of the total settlement funds would be allocated to the subdivision fund, which would be allocated among the plaintiffs in the litigation to fund future opioid remediation and to reimburse past opioid-related expenses (which may include fees and expenses related to litigation).
o State Fund. 15% percent of the total settlement funds would be allocated to the State and used by the State for future opioid remediation.
o Abatement Accounts Fund. 70% percent of the total settlement funds would be allocated to counties and cities to be used for opioid abatement or remediation uses (such as services to treat opioid use disorder; support people in treatment and recovery; purchase and distribute naloxone; connect people to care; address needs of criminal justice-involved persons, address the needs of communities of color and vulnerable populations including sheltered and unsheltered people disproportionately impacted by substance use disorders; prevent over-prescribing and ensure appropriate prescribing and dispensing of opioids; prevent misuse of opioids, prevent overdose deaths and other harms; provide leadership, planning, and coordination of programs; provide training; and conduct research.)
▪ The funds to individual counties are allocated based on opioid deaths per capita, incidence of opioid use disorder, and opioid dosage.
Item: 10
109
• The funds to cities within a particular county are
allocated based on historical spending of cities on
various services such as police protection, fire
protection, health services, correction services, housing and community development, judicial services, and
legal services.
• Management of Funds. Each county and city that receives payment of funds from the settlements must prepare written reports at least annually regarding the use of those funds until the funds are fully expended and for one year thereafter. These reports would also include a certification that all funds received have been used in compliance with the allocation agreements. Further, each county and city would need to track all deposits and expenditures. A county is not responsible for oversight, reporting, or monitoring of funds received by a city within the county that receives direct payment.
DISCUSSION:
California counties and cities have been allocated 85% of the total amount allocated to California, which based on best estimates will be approximately $120 million. Note that in no scenario will California’s allocation be so much greater as to make the City’s allocation substantively larger.
• City Allocation. The specific amount to be allocated to the City is unknown at this time because it is dependent upon the number of localities that opt into the settlements. The final total amount will be disbursed over 11 years and is likely a lesser amount than the previous settlements. • Default Distribution. The default distribution of funds in the settlement agreements provides the funds would go directly to the county in which a city is located. A city can elect to have its funds delivered directly to the city by providing notice in the participation agreements. Additionally, a city within a county may opt in or out of direct payment at any time, and it may also elect direct payment of only a portion of its share, with the remainder going to the county, by providing notice to the settlement fund administrators at least sixty days prior to a payment date. • City-specific considerations. In deciding whether to allow a city’s funds to go directly to the county in which a city is located, a city should consider the following: (1) whether the amount of money is substantial enough for the city to have its own impactful and meaningful programs; (2) whether the city offers the services and has the employees to spend the money in Item: 10
110
accordance with its prescribed uses; and (3) whether the city wants to engage in the reporting requirements over the course of the next twelve years (eleven years of distribution and an additional year following final distribution).
Opting In. The City must opt into the settlement agreement by August 12, 2024, which requires the City to release its claims against Kroger Co. • No opt-in action. If the City takes no action, it will have not opted into the settlement and its allocation of settlement funds will not be paid. The City would still have the opportunity to bring its own action against Kroger if it opts out of the settlement, which is not very realistic. • Opt-in action. Rubris Incorporated (“Rubris”) has been designated as the Settlement Implementation Administrator responsible for providing notice and managing the collection of participation forms. Rubris also handled the previous national opioid settlements. The City must return the “Subdivision Participation and Release Form” (Attachment 3) to Rubris using electronic signature via DocuSign, manual signature returned via DocuSign, or manual signature returned via electronic mail to
[email protected] by August 12, 2024, in order to opt into the settlement.
This is the third of these opioid settlements and it is staff’s understanding that there could be more against other defendants. If previous settlements are indicative, future settlements will continue to be in descending amounts. Thus, there could be some efficacy in granting the City Manager authority to execute any future settlement agreements consistent with City Council direction.
FISCAL IMPACT:
There is no fiscal impact to the City based on the recommended actions.
ATTACHMENTS:
1. Exhibit A - Proposed Kroger Settlement Agreement
2. Exhibit B - Kroger Counsel Side Letter of March 28, 2024
3. Exhibit C - Subdivision Participation and Release Form Submitted By: Matthew Richardson, City Attorney
Approved By: Keith Neves, Assistant City Manager
Item: 10
111
ATTACHMENT 1
Item: 10
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141
ATTACHMENT 2
Item: 10
142
BY E-MAIL
2001 M Street, NW Suite 600
Washington, DC 20036
+1 202 682 7000 tel
+1 202 857 0940 fax
March 28, 2024
Chantale Fiebig
+1 (202) 682-7200
[email protected]
David Jones
Supervising Deputy Attorney General
Healthcare Rights & Access Section
Department of Justice
1300 I Street
Sacramento, CA 95814
Phone: (916) 210-7861
Email: [email protected]
Re: Kroger Opioids Settlement Agreement
Dear Mr. Jones:
This letter summarizes the agreement reached between Kroger and the State of California regarding the multistate Kroger Settlement Agreement dated March 22, 2024 regarding opioid claims by states and subdivisions (the "Multistate Kroger Settlement Agreement").
The Kroger Co. and all of its direct and indirect subsidiaries ("Kroger"), and the State of California, by and through its Attorney General Rob Bonta, have agreed to the following modification to the Multistate Kroger Settlement Agreement in its application to California. For the avoidance of doubt, the limited modification set forth below applies only to California and to no other state or territory.
The “Prescription Red Flag” described in Section IX(5)(a) of Exhibit P to the Multistate Kroger Settlement Agreement is modified in its entirety to read as follows:
A Controlled Substance prescription fails to meet the requirements of law. For the sake of clarity, minor deficiencies in the patient’s name, address, date of birth, or contact information are not a red flag if the pharmacist, in his or her professional judgment and usual course of practice, is able to resolve these deficiencies with the patient.
This limited California-specific modification was a necessary condition for California's decision to signon as a participating state to the Multistate Kroger Settlement Agreement.
For the avoidance of doubt, all other terms and provisions in the Multistate Kroger Settlement Agreement remain the same, including without limitation all “Prescription Red Flags” not specified above, all DocuSign Envelope ID: BC8870D6-FBA2-49B9-A89B-8D793E209ADB Item: 10 143
David Jones
March 28, 2024
definitions, all release provisions, the eleven-year-payment schedule and all other terms and provisions of the payment schedule, and all other terms and provisions.
These terms and this letter shall be included in a stipulated judgment to be filed in a Superior Court in the State of California.
Sincerely,
Chantale Fiebig
Counsel for The Kroger Co.
SO AGREED BY AND ON BEHALF OF THE STATE OF CALIFORNIA:
________________________________
Name: David A. Jones
Title: Supervising Deputy Attorney General
Date: March 29, 2024
DocuSign Envelope ID: BC8870D6-FBA2-49B9-A89B-8D793E209ADB Item: 10 144
ATTACHMENT 3
Item: 10
145
Subdivision Participation and Release Form
Governmental Entity: Goleta city State: CA
Authorized Signatory: /officialname_kroger/
Address 1: /address1_kroger/
Address 2: /address2_kroger/
City, State, Zip: /cit_kr/ /state_kr/ /zi_kr/
Phone: /phone_kroger/
Email: /email_kroger/
The governmental entity identified above (“Governmental Entity”), in order to obtain and in consideration for the benefits provided to the Governmental Entity pursuant to the Settlement Agreement dated March 22, 2024 (“Kroger Settlement”), and acting through the undersigned authorized official, hereby elects to participate in the Kroger Settlement, release all Released Claims against all Released Entities, and agrees as follows.
1. The Governmental Entity is aware of and has reviewed the Kroger Settlement, understands that all terms in this Participation and Release Form have the meanings defined therein, and agrees that by executing this Participation and Release Form, the Governmental Entity elects to participate in the Kroger Settlement and become a Participating Subdivision as provided therein.
2. The Governmental Entity shall promptly, and in any event no later than 14 days after the Reference Date and prior to the filing of the Consent Judgment, dismiss with prejudice any Released Claims that it has filed. With respect to any Released Claims pending in In re National Prescription Opiate Litigation, MDL No. 2804, the Governmental Entity authorizes the Plaintiffs’ Executive Committee to execute and file on behalf of the Governmental Entity a Stipulation of Dismissal with Prejudice substantially in the form found at https://nationalopioidsettlement.com/.
3. The Governmental Entity agrees to the terms of the Kroger Settlement pertaining to Participating Subdivisions as defined therein.
4. By agreeing to the terms of the Kroger Settlement and becoming a Releasor, the Governmental Entity is entitled to the benefits provided therein, including, if applicable, monetary payments beginning after the Effective Date.
5. The Governmental Entity agrees to use any monies it receives through the Kroger Settlement solely for the purposes provided therein.
6. The Governmental Entity submits to the jurisdiction of the court in the Governmental Entity’s state where the Consent Judgment is filed for purposes limited to that court’s role as provided in, and for resolving disputes to the extent provided in, the Kroger Settlement. The Governmental Entity likewise agrees to arbitrate before the National 1 DocuSign Envelope ID: BC8870D6-FBA2-49B9-A89B-8D793E209ADB Item: 10 146
Arbitration Panel as provided in, and for resolving disputes to the extent otherwise provided in, the Kroger Settlement.
7. The Governmental Entity has the right to enforce the Kroger Settlement as provided therein.
8. The Governmental Entity, as a Participating Subdivision, hereby becomes a Releasor for all purposes in the Kroger Settlement, including without limitation all provisions of Section XI (Release), and along with all departments, agencies, divisions, boards, commissions, districts, instrumentalities of any kind and attorneys, and any person in their official capacity elected or appointed to serve any of the foregoing and any agency, person, or other entity claiming by or through any of the foregoing, and any other entity identified in the definition of Releasor, provides for a release to the fullest extent of its authority. As a Releasor, the Governmental Entity hereby absolutely, unconditionally, and irrevocably covenants not to bring, file, or claim, or to cause, assist or permit to be brought, filed, or claimed, or to otherwise seek to establish liability for any Released Claims against any Released Entity in any forum whatsoever. The releases provided for in the Kroger Settlement are intended by the Parties to be broad and shall be interpreted so as to give the Released Entities the broadest possible bar against any liability relating in any way to Released Claims and extend to the full extent of the power of the Governmental Entity to release claims. The Kroger Settlement shall be a complete bar to any Released Claim.
9. The Governmental Entity hereby takes on all rights and obligations of a Participating Subdivision as set forth in the Kroger Settlement.
10. In connection with the releases provided for in the Kroger Settlement, each Governmental Entity expressly waives, releases, and forever discharges any and all provisions, rights, and benefits conferred by any law of any state or territory of the United States or other jurisdiction, or principle of common law, which is similar, comparable, or equivalent to § 1542 of the California Civil Code, which reads:
General Release; extent. A general release does not extend to claims that the creditor or releasing party does not know or suspect to exist in his or her favor at the time of executing the release that, if known by him or her would have materially affected his or her settlement with the debtor or released party.
A Releasor may hereafter discover facts other than or different from those which it knows, believes, or assumes to be true with respect to the Released Claims, but each Governmental Entity hereby expressly waives and fully, finally, and forever settles, releases and discharges, upon the Effective Date, any and all Released Claims that may exist as of such date but which Releasors do not know or suspect to exist, whether through ignorance, oversight, error, negligence or through no fault whatsoever, and which, if known, would materially affect the Governmental Entities’ decision to participate in the Kroger Settlement.
2 DocuSign Envelope ID: BC8870D6-FBA2-49B9-A89B-8D793E209ADB Item: 10 147
11. Nothing herein is intended to modify in any way the terms of the Kroger Settlement, to which Governmental Entity hereby agrees. To the extent this Participation and Release Form is interpreted differently from the Kroger Settlement in any respect, the Kroger Settlement controls.
I have all necessary power and authorization to execute this Participation and Release Form on behalf of the Governmental Entity.
Signature: /signer_1_kroger/
Name: /name_1_kroger/
Title: /title_1_kroger/
Date: /date_1_kroger/
3 DocuSign Envelope ID: BC8870D6-FBA2-49B9-A89B-8D793E209ADB Item: 10 148
CITY COUNCIL AGENDA REPORT
MEETING DATE: 7/16/2024
DEPARTMENT: Community Services
SUBJECT:
OPTIONS FOR EXPANSION OF HOLIDAY LIGHTING DISPLAY
RECOMMENDED ACTION(S):
1. Receive and file a presentation from staff giving an update on expanded holiday lighting options.
2. Direct staff to investigate the costs considering alternative medians to illuminate and to provide an update to the City Council prior to the second and final one-year term extension of the Brightlife Designs, Inc. contract.
EXECUTIVE SUMMARY:
The City displays holiday and year-round lighting on El Toro Road from the I/5/El Toro Road interchange to Muirlands Boulevard. The lighting is installed and maintained by Brightlife Designs, Inc. (“Brightlife”) via a three-year contract for services which is set to expire on September 29, 2024. Staff engaged in negotiations with Brightlife to exercise a one-year term extension that would include expanded holiday options as called for in Initiative #52 of the Strategic Plan.
On June 18, 2024, staff presented to the City Council options for the expansion of the City’s Holiday Lighting Display, as requested in Initiative #52. All were within the $50,000 budget allocated. Expanded holiday Option #2 was approved with added direction from the City Council to include holiday lighting options along Portola Parkway (“Portola”) using the $50,000 budgeted for holiday lighting. Upon further investigation of five areas along Portola Parkway, staff determined the conditions required to be able to install a lighting display were not met.
Since the initial three-year term of Brightlife’s contract is set to expire on September 29, 2024, staff shall move forward with the approved Option #2 and recommends the City Council direct staff to continue to investigate alternative medians to illuminate in the future. Should the City Council approve the recommended action, staff would investigate the costs of adding sufficient electrical power to the medians on Portola Parkway or consider alternative Item: 11
149
medians to illuminate prior to the second and final one-year term extension of the Brightlife contract. An update to the City Council will be given mid-year of FY 2024-25.
BACKGROUND:
The City displays holiday and year-round lighting on El Toro Road from the I-5/El Toro Road interchange to Muirlands Boulevard, year-round lighting at The Arbors, and on the Civic Center Campus’ signature tree located in the roundabout. Lighting installation and maintenance services are currently provided by Brightlife Designs, Inc (“Brightlife”). The initial three-year term of Brightlife’s contract is set to expire on September 29, 2024. In anticipation of the upcoming term expiration, staff engaged Brightlife in negotiations to exercise a one-year term extension that would include expanded holiday lighting options called for in Initiative #52 of the Strategic Plan. Initiative #52 was allocated a $50,000 budget.
On June 18, 2024, staff presented to the City Council options for the expansion of the City’s Holiday Lighting Display, as requested in Initiative #52. These options included:
Table 1: Lighting Options Summary
Option Description Costs
1 Includes current décor of 41 lit trees, wall lighting, and an additional 31 lit trees $28,810
2 Includes current décor of 41 lit trees, wall lighting, additional 31 lit trees, and large wreaths on the
Arbor Structures $39,610
3 Includes current décor of 41 lit trees, wall lighting, with the addition of large décor in the medians $29,985 4 Includes current décor of 41 lit trees, wall lighting, additional 31 lit trees and large décor in the
medians $43,260
Expanded holiday Option #2 was approved with added direction from the City Council to include holiday lighting options along Portola using the $50,000 budgeted for holiday lighting. Staff were further directed to return to a subsequent City Council meeting with a contract document to effectuate the recommended action.
Item: 11
150
DISCUSSION:
Per City Council direction staff researched additional areas to add holiday lighting along the Portola Parkway corridor. Keeping consistent with the display on El Toro Road and the I/5, where the medians and street corners are illuminated, the following areas were considered (Attachment):
• City Monument sign on Alton Parkway
• Corner of Portola Parkway and El Toro Road
• Corner of Portola Parkway and Lake Forest Drive
• Corner of Portola Parkway and Bake Parkway
• Medians on Portola Parkway between El Toro Road and Alton Boulevard.
The criteria needed to be met to secure additional lighting on the Portola Parkway corridor include having access to sufficient electrical power to illuminate holiday lighting and City ownership of the land at the areas being considered.
Staff research is summarized in the Table 2:
Table 2: Additional Lighting Options on Portola Parkway Location Ownership Electrical Available
City Monument Sign on Alton
Parkway
City No
Corner of Portola Parkway/El Toro
Road
Privately owned N/A
Corner of Portola Parkway/ Lake
Forest Drive
Privately owned N/A
Corner of Portola Parkway/ Bake
Parkway
Privately owned N/A
Medians on Portola Parkway between
El Toro Road and Alton Boulevard
City No
Although the City does own both the monument signs on Alton Parkway and the medians on Portola Parkway, there is not sufficient electrical power to illuminate holiday lighting in those areas, currently. Additional research would need to be conducted to determine the cost of adding the electrical power required to support holiday lighting in these areas. Since the initial three-year term of Brightlife’s contract is set to expire on September 29, 2024, staff is recommending moving forward with the approved Option #2. Option #2 will be added to the Scope of Work for the one-year term extension.
Should the City Council approve the recommended action, staff will investigate the costs of adding sufficient electrical power to the medians on Portola Parkway or consider alternative medians to illuminate prior to the consideration of the Item: 11
151
second and final one-year term extension of the Brightlife contract. An update to the City Council will be given mid-year of FY 2024-25.
FISCAL IMPACT:
There is no fiscal impact associated with the recommended action.
ATTACHMENTS:
Examples of Possible Expansion Options for Holiday Lighting on Portola Parkway
Initiated By: Victoria Blethen, Recreation Manager
Submitted By: Victoria Blethen, Recreation Manager
Approved By: Keith Neves, Assistant City Manager
Item: 11
152
Attachment 1
Item: 11
153
Example of possible option for Holiday Lighting Expansion ~ Median on Portola Parkway Item: 11
154
Example of possible option for Holiday Lighting Expansion ~ Corner Portola Parkway/Lake Forest Item: 11
155
Example of possible option for Holiday Lighting Expansion ~ Median on Portola Parkway Item: 11
156
Example of possible option for Holiday Lighting Expansion ~ City Monument Sign on Alton Parkway Item: 11
157
CITY COUNCIL AGENDA REPORT
MEETING DATE: 7/16/2024
DEPARTMENT: City Manager
SUBJECT:
HOMELESSNESS, DRUG ADDICTION, AND THEFT REDUCTION ACT
RECOMMENDED ACTION(S):
Exercise Discretion in Adopting a Resolution Entitled: A RESOLUTION OF THE
CITY COUNCIL OF THE CITY OF LAKE FOREST, CALIFORNIA TO SUPPORT CALIFORNIA INITIATIVE #23-0017A1.
EXECUTIVE SUMMARY:
As part of its Legislative Program, the City Council adopts a Legislative Platform prior to the start of the State’s Legislative Session. This platform contains policy guidelines rooted in the preservation of local control and municipal financial independence. The City Council adopted the 2024 Legislative Platform (Attachment 1) on February 20, 2024.
Proposition 47, effective November 5, 2014, added and amended various statutory provisions to implement the following three changes to felony sentencing laws:
• Changed certain theft and drug possession offenses from felonies to misdemeanors, except for persons with certain prior convictions. • Authorized defendants serving sentences for felony offenses that would have qualified as misdemeanors under the proposition to petition courts for resentencing under the new misdemeanor provisions.
• Authorized defendants who have completed their sentences for felony convictions that would have qualified as misdemeanors under the proposition to apply to reclassify those convictions to misdemeanors.
During the June 18, 2024, City Council meeting, Council Member Pequeño received consensus to bring the matter of supporting the effort to repeal Proposition 47 to the City Council for consideration (Attachment 2). Initiative 23- 0017A1 (“Initiative”), also referred to as the “Homelessness, Drug Addictions, and Theft Reduction Act,” is a measure that provides reforms to Proposition 47.
Item: 12
158
Initiative 23-0017A1 would enact targeted reforms to the provisions enacted by Proposition 47. The Initiative seeks to address organized and serial retail theft by enacting the following changes to state law:
• Allowing felony charges for possessing certain drugs, including fentanyl, and for thefts under $950—both currently chargeable only as misdemeanors—with two prior drug or two prior theft convictions, as applicable. Defendants who plead guilty to felony drug possession and complete treatment can have charges dismissed.
• Increasing sentences for other specified drug and theft crimes.
The goals of these reforms include:
• Holding repeat offenders accountable for the safety of communities; • Defining fentanyl as a hard drug and holding individuals convicted of trafficking fentanyl accountable, and granting judges greater discretion in sentencing drug traffickers; and,
• Creating a new court process for certain drug possession crimes to prioritize mental health and drug addiction treatment by providing critical mental health, drug treatment services, and job training within the justice system for people who are homeless and suffering from mental illness.
Californians for Safer Communities has submitted more than 910,000 signatures for this measure to become eligible for the 2024 November General Election ballot. Supporters of this measure include the California State Sheriffs Association and the California Police Chiefs Association.
Adopting the attached Resolution documenting support for the Initiative is at the discretion of the City Council (Attachment 3). The full text of the Initiative is provided as Attachment 4.
FISCAL IMPACT:
Fiscal impact is dependent upon City Council action.
ATTACHMENTS:
1. 2024 Legislative Platform
2. Minute Excerpt, June 18, 2024
3. Resolution to Support California Initiative 23-0017A1
4. California Initiative 23-0017A1 Text
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Initiated By: Nidia Ruelas, Assistant to the City Manager Submitted By: Debra Rose, City Manager
Approved By: Keith Neves, Assistant City Manager
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ATTACHMENT 1
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CITY OF LAKE FOREST
2024 LEGISLATIVE PLATFORM
The Legislative Platform (“Platform”) defines the City’s Policy guidelines and provides the foundation for advocacy efforts at the federal, state, and local levels.
Staff uses this Platform to identify relevant topic areas and subject matter, and makes recommendations to the City Council on specific legislation consistent with the policy guidelines. Additionally, in the event it is necessary for the City to respond to a legislative proposal in a timeframe that does not allow the City Council to take formal action, staff would express positions on bills in accordance with these guidelines, and then seek City Council direction at the appropriate time.
Policy Guidelines:
1. The City supports legislation that leads to greater financial independence from federal, state and/or county government, and protects local resources from seizure by federal, state and/or county agencies.
2. The City supports legislation maintaining maximum local flexibility in all areas of its responsibility and operations and opposes legislation that imposes intrusive, unnecessary or unfunded state-imposed mandates or preempts local authority.
3. The City supports legislation that advocates fair and proportionate representation on countywide and regional boards.
4. The City supports modification to the California Environmental Quality Act (“CEQA”) to eliminate duplicative and unnecessary provisions of the existing law.
5. The City supports efforts to reestablish the authority and financing capability previously afforded to local governments by redevelopment through legislation designed to support businesses through economic development and the City supports efforts to facilitate economic development efforts that enhance opportunities for local businesses.
6. The City supports legislative efforts that would amend existing law to ensure that prevailing wage rates do not impede its ability to pursue small-dollar projects and lower operating costs.
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7. The City supports efforts to amend the current occupancy calculation in the Uniform Housing Code (“UHC”) to achieve a more reasonable standard, thereby, improving the health, safety, and residential character of our community.
8. The City supports efforts, at both the federal and state level, to provide local agencies with regulatory tools related to short-term rentals and other uses in residential areas that have the ability to affect the quality of life.
9. The City supports bills that would lower taxation rates for businesses and residents.
10. The City supports religious freedom and legislation protecting religious freedom at both the state and federal level.
11. The City opposes legislation or policies that limit the type and or number of clean, renewable, sustainable energy sources available to consumers.
12. The City opposes legislation that makes the City more dependent on federal, state, and/or county government or agencies for policy direction.
13. The City opposes any legislation that is inconsistent with the doctrine of home rule, interferes with local exercise of police powers over local land use, or requires a federal, state, and/or county entity to develop model planning practices and policies.
14. The City opposes legislation or ballot initiatives that would alter the legislative intent of Proposition 13, including a split real-property tax roll that would affect commercial property and any amendment that would affect residential property.
15. The City opposes legislation to create new financial burdens or erode public safety through realignment implementation.
16. The City opposes legislation to limit the City’s ability to contract for municipal services.
17. The City opposes legislation that seeks to impede the construction of Portola Parkway.
18. The City Council opposes efforts by the State Legislature to assess taxes on public goods and services such as water and electricity.
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19. The City opposes legislation that would lower the vote threshold as a method to impose new taxes or create new financing opportunities.
20. The City supports legislative efforts that reduce or delay the financial and compliance impacts of State-mandated organics recycling.
21. The City supports maximum flexibility with regard to expending grant funds that address economic recovery associated with public health declarations, natural disasters, and other emergencies.
22. The City will take into consideration the strategic goals adopted by CalCities.
23. Staff is authorized to continue to advocate a position for a bill which has been amended into a new bill number as long as the language and intent remain substantially unchanged.
24. The City supports legislation that advances the practice or policy of favoring individuals in hiring and similar contexts based solely on their abilities and personal merits, including education, skills, experience, and other similar factors.
25. The City supports legislation that invests in, provides for the research of, and promotes the development of new water storage and new water supplies.
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ATTACHMENT 2
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MINUTE EXCERPT
LAKE FOREST REGULAR CITY COUNCIL MEETING
JUNE 18, 2024
CITY COUNCIL COMMENTS:
Council Member Pequeño received consensus to bring a resolution before the City Council supporting the repeal of Proposition 47
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ATTACHMENT 3
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RESOLUTION NO. 2024-XX
A RESOLUTION OF THE CITY COUNCIL OF THE CITY
OF LAKE FOREST, CALIFORNIA TO SUPPORT
INITIATIVE #23-0017A1
WHEREAS, Initiative 23-0017A1, the Homelessness, Drug Addiction, and Theft Reduction Act is a bi-partisan measure that provides common sense and targeted reforms to Prop 47; and
WHEREAS, the Homelessness, Drug Addiction, and Theft Reduction Act has submitted more than 910,000 signatures to qualify for the 2024 November General Election ballot; and
WHEREAS, this measure will hold repeat offenders of organized and serial retail theft accountable for the safety of our communities, rather than putting them back on the streets; and
WHEREAS, the fentanyl crisis has reached alarming levels, and is now responsible for 20 percent of youth deaths in California; and WHEREAS, the measure will define fentanyl as a hard drug, hold individuals convicted of trafficking fentanyl accountable, and grant judges greater discretion in sentencing drug traffickers; and
WHEREAS, the measure provides critical mental health, drug treatment services, and job training within our justice system for people who are homeless and suffering from mental illness or struggling with substance abuse.
THEREFORE, BE IT RESOLVED that the City of Lake Forest supports Initiative #23-0017A1;
THEREFORE, BE IT FURTHER RESOLVED, that the City Council formally expresses support for the Homelessness, Drug Addiction, and Theft Reduction Act and the benefit that it provides for our community’s safety.
PASSED, APPROVED, AND ADOPTED this day _____ of _____, 2024, by the following vote to wit:
MARK TETTEMER
MAYOR
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ATTEST:
LISA BERGLUND, CMC
CITY CLERK
APPROVED AS TO FORM:
MATTHEW E. RICHARDSON
CITY ATTORNEY
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STATE OF CALIFORNIA )
COUNTY OF ORANGE ) SS
CITY OF LAKE FOREST )
I, Lisa Berglund, City Clerk of the City of Lake Forest, California, do hereby certify that the foregoing Resolution No. __ was duly passed and adopted at a regular meeting of the Lake Forest City Council on the ____ day of ______, 2024, by the following vote, to wit:
AYES: COUNCIL MEMBERS:
NOES: COUNCIL MEMBERS:
ABSENT: COUNCIL MEMBERS:
ABSTAIN: COUNCIL MEMBERS:
__________________________
LISA BERGLUND, CMC
CITY CLERK
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ATTACHMENT 4
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BELL, MCANDREWS & HILTACHK, LLP
ATTORNEYS AND COUNSELORS AT LAW
45S CAPITOL MALL, SUITE 600
SACRAMENTO, CALIFORNIA 9S814
Anabel Renteria
Initiative Coordinator
Office of the Attorney General
State of California
PO Box 994255
Sacramento, CA 94244-25550
(916) 442-77S7
FAX (916) 442-77S9
www.bmhlaw.com
September 22, 2023
Re: Initiative 23-0017 -Amendment Number One
Dear Initiative Coordinator:
Pursuant to subdivision (b) of Section 9002 of the Elections Code, enclosed please find Amendment #1 to Initiative No. 23-0017, The Homelessness, Drug Addiction, and Theft Reduction Act. The amendments are reasonably germane to the theme, purpose or subject of the initiative measure as originally proposed.
I am the proponent of the measure and request that the Attorney General prepare a circulating title and summary of the measure as provided by law, using the amended language.
Thank you for your time and attention processing my request.
Sincerely,
Thomas
~ W. Hiltachk
23-0017 A1
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THE HOMELESSNESS, DRUG ADDICTION, AND THEFT REDUCTION ACT SECTION 1. Title
This Act shall be known as The Homelessness, Drug Addiction, and Theft Reduction Act.
SECTION 2. Purposes and Intent
This measure will reform laws that have dramatically increased homelessness, drug addiction, and theft throughout California.
This measure will:
A. Provide drug and mental health treatment for people who are addicted to hard drugs such as fentanyl, cocaine, heroin, and methamphetamine.
B. Add fentanyl to existing laws that prohibit the possession of hard drugs while armed with a loaded firearm.
C. Add fentanyl to existing laws that prohibit the trafficking of large quantities of hard drugs.
D. Permit judges to use their discretion to _sentence drug dealers to state prison instead of county jail when they are convicted of trafficking hard drugs in large quantities or are armed with a firearm while engaging in drug trafficking.
E. W am convicted hard drug dealers and manufacturers that they can be charged with murder if they continue to traffic in hard drugs and someone dies as a result.
F. Reinstate penalties for hard drug dealers whose trafficking kills or seriously injures a drug user.
G. Increase penalties for people who repeatedly engage in theft.
H. Add new laws to address the increasing problem of "smash and grab" thefts that result in significant losses and damage, or that are committed by multiple thieves working together.
1 23-0017 A1
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SECTION 3. Findings and Declarations
The People of the State of California find and declare as follows:
A. Reducing Homelessness Through Drug and Mental Health Treatment
1. California has reached a tipping point in its homelessness, drug, mental health, and theft crises. Our state has the highest rate of_homelessness per capita of any state in the. country. And drug overdoses now kill two to three times the number of people in California as car accidents.
2. Since the passage of Proposition 4 7 in 2014, homelessness in California has increased by 51 %, while during the same time period in the rest of the country, it has declined by 11 %. Proposition 4 7 reduced the legal consequences of both possession of hard drugs (fentanyl, cocaine, heroin, methamphetamine, and phencyclidine), and theft. The result has been massive increases in drug addiction, mental illness, and property crimes, including retail theft, committed by addicts to support their addiction. At the same time, California has seen a dramatic decrease in mental health and drug treatment for homeless people due to reduced incentives to participate in treatment. Our homelessness problem is directly connected to these unintended consequences of Proposition 4 7, which the voters now desire to correct.
3. Progressive states such as New Jersey, Maryland, Illinois, and Michigan have significantly stronger hard drug laws than California, and their homeless rate is 4 to 5 times lower than California's.
4. This proposal takes a modest step in the direction of these states by enacting a new class of crime called a "treatment-mandated felony." Under this new "treatmentmandated felony," prosecutors would have the discretion to charge a felony for hard drug possession after two previous drug convictions. If charged with this "treatment-mandated felony" for a third or subsequent drug offense, the offender would be given the option of participating in drug and mental health treatment. If the offender successfully completes drug and mental health treatment, the charge would be fully expunged, and the offender would receive no jail time. If the offender refuses drug and mental health treatment, they would serve jail time for hard drug possession. For a second conviction of the treatmentmandated felony (the 4th total conviction for hard drug possession), a judge would have the option of imposing time in jail or state prison. Along with hard drug and mental health treatment, offenders charged with a treatment-mandated felony would be offered shelter, job training, and other services designed to break the cycle of addiction and homelessness.
B. Cracking Down on Hard Drug Dealers
1. Fentanyl is the most dangerous drug that our nation has ever seen. Because it is largely produced synthetically, fentanyl is typically cheaper than other hard drugs. As a result, drug dealers now regularly include fentanyl in other drugs such as diet, anxiety, and 2 Item: 12
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sleeping pills, cocaine, and heroin. Further, fentanyl is up to 50 times stronger than heroin. Therefore, a very tiny amount offentanyl can prove deadly. One kilogram (2.2 pounds) of fentanyl provides enough of the drug to manufacture four to ten million doses, or enough to kill 500,000 people. Finally, because such a small amount of fentanyl is necessary to create addiction, it is easier to smuggle across the border in smaller, yet much more deadly quantities.
2. This Act would authorize greater consequences for hard drug dealers whose trafficking kills or seriously injures a person who uses those drugs, and it would provide a mechanism to warn convicted hard drug dealers and manufacturers that they can be charged with murder if they continue to traffic in hard drugs and someone dies as a result.
3. This Act would add non-prescription fentanyl to an existing list of hard drugs such as heroin, cocaine, and methamphetamine, for which it is illegal to possess the drug while armed with a loaded firearm.
4. This Act would also add non-prescription fentanyl to an existing list of hard drugs such as heroin, cocaine, and methamphetamine that authorizes greater consequences for drug dealers who sell large quantities of hard drugs.
5. This Act also permits judges to sentence drug dealers who traffic in large quantities of hard drugs or who are armed with a firearm while trafficking in hard drugs to state prison instead of local county jails. Only our state prisons are equipped to manage security for hardened drug dealers and to provide them the rehabilitation services they need to safely re-enter society.
C. Accountability for Repeat Theft and Smash and Grab Thefts
1. Prior to Proposition 4 7, individuals who repeatedly engaged in theft could be charged with a felony. Prop 4 7 eliminated this repeat offender felony and instead provided that any theft up to $950 in value is now a misdemeanor - regardless of how many times the offender has committed theft. In practice, this means that an offender who repeatedly steals up to $950 in value faces virtually no legal consequences.
2. The result has been an explosion in retail and cargo theft causing stores throughout California to close to protect employees and customers from criminal activity that disrupts the efficient delivery of products directly to consumers and creates billions of dollars in economic losses to our local communities and state. This rapid increase in retail and cargo theft has also contributed to rising inflation, as businesses have been forced to raise prices to account for their economic losses. This retail and cargo theft explosion has collided with the fentany 1 epidemic, as hard drug users have engaged in brazen theft to support their drug habits, knowing that there will be no consequences for either their theft or their hard drug use.
3. Under this Act, an offender with two prior convictions for theft can be charged with a felony, regardless of the value of the stolen property. Diversion programs will continue to 3 Item: 12
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exist, meaning that judges will retain discretion not to incarcerate an off ender even for more than two theft convictions. But prosecutors will have the ability to bring felony charges against hardened, repeat offenders who continue to engage in theft. Judges will have the discretion to sentence a repeat offender to jail in appropriate cases, or to state prison if an off ender is convicted four or more times of theft.
4. This Act also authorizes judges to exercise their discretion to impose an enhanced penalty when an offender steals, damages, or destroys property by acting together with two or more offenders or by causing losses of $50,000 or more. By permitting discretion in these scenarios, judges will be able to fashion sentences that are appropriate for the crime committed, including so-called "smash and grabs" committed by mobs or large groups of people working together.
5. The value of property stolen in multiple thefts will be permitted to be added together so that in appropriate cases an offender may be charged with felony theft instead of petty theft. This provision addresses the problem of offenders who commit a series of thefts in which the property stolen during each theft has a value under the $950 felony theft threshold, in order to insulate themselves from felony charges.
6. Along with the hard drug provisions in this Act, these theft law changes will stop the vicious cycle of hard drug users stealing to support their habits without legal consequences for their actions.
SECTION 4. Section 11369 is added to the Health & Safety Code to read:
11369. (a) This section shall be known, and may be cited, as Alexandra's Law. (b) The court shall advise a person who is convicted of, or who pleads guilty or no contest to, a violation of Section 11351, 11351.5, 11352, 11378, 11378.5, 11379, 11379.5, or 11379.6 involving a hard drug, of the following:
"You are hereby advised that it is extremely dangerous and deadly to human life to illicitly manufacture, distribute, sell, furnish, administer, or give away any drugs in any form, including real or counterfeit drugs or pills. You can kill someone by engaging in such conduct. All drugs and counterfeit pills are dangerous to human life. These substances alone, or mixed, kill human beings in ve1y small doses. If you illicitly manufacture, distribute, sell, furnish administer, or give away any real or counterfeit drugs or pills, and that conduct results in the death of a human being, you could be charged with homicide, up to and including the crime of murder, within the meaning of Section 187 of the Penal Code. "
(c) The advisory statement shall be provided to the defendant in writing, either on a plea form if used, as an addendum to a plea form, or at sentencing, and the fact that the advisory was given shall be specified on the record and recorded in the abstract of the conviction. 4 Item: 12
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(d) (1) Except as provided in paragraph (2), as used in this section, "hard drug" means a substance listed in Sections 11054 or 11055, including a substance containingfentanyl; heroin, cocaine, cocaine base, methamphetamine, or phencyclidine, and the analogs of any of these substances as defined in Sections 11400 and 11401.
(2) As used in this section "hard drug'' does not include cannabis, cannabis products, peyote, lysergic acid diethylamide (LSD) or other psychedelic drugs such as mescaline and psilocybin (mushrooms), or any other substance listed in subdivisions (d) and (e) of Section 11054, or, with the exception of methamphetamine, any other substance listed in subdivision (d) of Section 11055.
SECTION 5. Section 11370.1 of the Health & Safety Code is amended to read:
11370.1. (a) Notwithstanding Section 11350 or 11377 or any other provision oflaw, every person who unlawfully possesses any amount of a substance containing cocaine base, a substance containing cocaine, a substance containing heroin, a substance containing methamphetamine, a substance containing fentanyl, a crystalline substance containing phencyclidine, a liquid substance containing phencyclidine, plant material containing phencyclidine, or a hand-rolled cigarette treated with phencyclidine while armed with a loaded, operable firearm is guilty of a felony punishable by imprisonment in the state prison for two, three, or four years.
(k) Subdivision {a) does not apply to any person lawfully possessing fentanyl, including with a valid prescription.
1£1 As used in this-subdivision {gJ_,_ "armed with" means having available for immediate offensive or defensive use.
-fat-( d) Any person who is convicted under this section shall be ineligible for diversion or deferred entry of judgment under Chapter 2.5 ( commencing with Section 1000) of Title 6 of Part 2 of the Penal Code.
SECTION 6. Section 11370.4 of the Health & Safety Code is amended to read:
11370.4. (a)--Afly- {1JA person convicted of a violation of, or of a conspiracy to violate, Section 11351, 11351.5, or 11352 with respect to a substance containing heroin, cocaine base as specified in paragraph (1) of subdivision (f) of Section 11054, or cocaine as specified in paragraph (6) of subdivision (b) of Section 11055 shall receive an additional state prison term as follows:
(l)\l/here
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{A,lJfthe substance exceeds one kilogram by weight, the person shall receive an additional term of three years.
(2)Vlhere
(ll)_Jfthe substance exceeds four kilograms by weight, the person shall receive an additional term of five years.
(3)\Vhere
{{;l]f.the substance exceeds 10 kilograms by weight, the person shall receive an additional term of 10 years.
(4)'Nhere
{l2)_Jfthe substance exceeds 20 kilograms by weight, the person shall receive an additional term of 15 years.
(5)\Vhere
(Jj;)_Jfthe substance exceeds 40 kilograms by weight, the person shall receive an additional term of20 years.
(6)Where
{EJ.Jfthe substance exceeds 80 kilograms by weight, the person shall receive an additional term of25 years .
.Ql_ The conspiracy enhancements provided for in this subdivision shall not be imposed unless the trier of fact finds that the defendant conspirator was substantially involved in the planning, direction, execution, or financing of the underlying offense. (b) Aey-{J_)_A_ person convicted of a violation of, or of conspiracy to violate, Section 11378, 11378.5, 11379, or 11379.5 with respect to a substance containing methamphetamine, amphetamine, phencyclidine (PCP) and its analogs shall receive an additional state prison term as follows:
(l)\\7here
{A,lJfthe substance exceeds one kilogram by weight, or 30 liters by liquid volume, the person shall receive an additional term of three years.
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{JJ)_jf the substance exceeds four kilograms by weight, or 100 liters by liquid volume, the person shall receive an additional term of five years.
(3)Where
{QJf the substance exceeds 10 kilograms by weight, or 200 liters by liquid volume, the person shall receive an additional term of 10 years.
(4)\1/here
(J])_Jfthe substance exceeds 20 kilograms by weight, or 400 liters by liquid volume, the person shall receive an additional term of 15 years.
Ql In computing the quantities involved in this subdivision, plant or vegetable material seized shall not be included.
ill The conspiracy enhancements provided for in this subdivision shall not be imposed unless the trier of fact finds that the defendant conspirator was substantially involved in the planning, direction, execution, or financing of the underlying offense. (c) (1) A person convicted ofa violation of or ofa conspiracy to violate. Section 11351 or 11352 with respect to a substance containing fentanyl shall receive an additional state prison term as .follo-ws:
(A) Jfthe substance exceeds 28.35 grams (one ounce) by weight. the person shall receive an additional term of three years.
(B) If the substance exceeds 100 grams by weight, the person shall receive an additional term of five years.
(C) Jfthe substance exceeds 500 grams by weight, the person shall receive an additional term of seven years.
(D) Jfthe substance exceeds one kilogram by weight. the person shall receive an additional term ofJ0 years.
(E) If the substance exceeds four kilograms by weight. the person shall receive an additional term of] 3 years.
(F) If the substance exceeds 10 kilograms by weight. the person shall receive an additional term ofJ6 years.
(G) Jfthe substance exceeds 20 kilograms by weight. the person shall receive an additional term ofl9 years.
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(H) If the substance exceeds 40 kilograms by weight. the person shall receive an additional term of22 years.
(I) If the substance exceeds 80 kilograms by weight. the person shall receive an additional term of25 years.
(2) The conspiracy enhancements provided for in this subdivision shall not be imposed unless the trier olfact finds that the defendant conspirator was substantially involved in the planning, direction. execution. or financing of the underlying offense. fej @.The additional terms provided in this section shall not be imposed unless the allegation that the weight of the substance containing heroin, fentanyl, cocaine base as specified in paragraph (1) of subdivision (f) of Section 11054, cocaine as specified in paragraph (6) of subdivision (b) of Section 11055, methamphetamine, amphetamine, or phencyclidine (PCP) and its analogs exceeds the amounts provided in this section is charged in the accusatory pleading and admitted or found to be true by the trier of fact.
(e)Notwithstandingparagraph (9) o(subdivision (h) of Section 1170 of the Penal Code. a defendant convicted of an underlying violation specified in this section who admits an enhancement pursuant to this section or for whom an enhancement pursuant to this section is .found true. is punishable by imprisonment in the state prison and not pursuant to subdivision (h) o{Section 1170 ofthe Penal Code.
fdj {tlThe additional terms provided in this section shall be in addition to any other punishment provided by law.
W ..(g2Notwithstanding any other provision of law, the court may strike the additional punishment for the enhancements provided in this section if it determines that there are circumstances in mitigation of the additional punishment and states on the record its reasons for striking the additional punishment.
SECTION 7. Article 8 (commencing with Section 11395) is added to Chapter 6 of Division 10 of the Health & Safety Code, to read:
11395. (a) This section shall be known as the "Treatment-Mandated Felony. " (b) (1) Notwithstanding any other law, and except as provided in subdivision (d), a person described in subdivision (c) who possesses a hard drug, unless upon the written prescription of a physician, dentist, podiatrist, or veterinarian licensed to practice in this state, shall be punished by imprisonment in a county jail for not more than one year or pursuant to subdivision (h) of Section 1170 of the Penal Code. A second or subsequent conviction of this section, is punishable by imprisonment in the county jail not exceeding one year or by imprisonment in the state prison.
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(2) A person shall not be sentenced to jail or prison pursuant to this section unless a court determines that the person is not eligible or suitable for treatment or that any other circumstance described in paragraph (4) of subdivision (d) applies to that person. (c) Subdivision (b) applies to a person who has two or more prior convictions for a felony or misdemeanor violation of Sections 11350, 11351, 11351.5, 11352, 11353, 11353.5, 11353. 7, 11370.1, 11377, 11378, 11378.5, 11379, 11379.5, 11379.6, 11380, or 11395, including a conviction that occurred before the effective date of this section. Prior convictions shall be alleged in the accusatory pleading, and either admitted by the defendant in open court or found to be true by the trier of fact.
(d) (l)(i) In lieu of a jail or prison sentence, or a grant of probation with jail as a condition of probation, a defendant charged with a violation of this section may elect treatment by pleading guilty or no contest to a violation of this section and admitting the alleged prior convictions, waiving time for sentencing and the pronouncement of judgment, and agreeing to participate in, and complete, a detailed treatment program developed by a drug addiction expert and approved by the court. A defendant's plea of guilty or no contest shall not constitute a conviction for any purpose unless judgment is entered pursuant to paragraph ( 4) for a violation of this section. (ii) Upon or subsequent to arraignment for a violation of this section, and at the request or with the consent of the defendant or their attorney, the court shall order a drug addiction expert to conduct a substance abuse and mental health evaluation of the defendant. The expert shall submit a report of the evaluation to the court and parties. The evaluation may be based on an interview of the defendant and/or other individuals with relevant knowledge and review of records the expert deems appropriate, such as medical records, criminal history, prior treatment history, and records pertaining to the current offense. If the defendant participates in the interview, neither the defendants interview nor evidence derived from the interview may be used against the defendant at any subsequent trial for the instant offense except for the purposes of impeachment should the defendant testify inconsistently. The evaluation shall detail the defendants drug abuse and/or mental health issues, if any, so the court and parties may better determine appropriate handling of the defendants case.
(iii) Concurrent with the order for a substance abuse and mental health evaluation of the defendant, and with the defendants consent, the court shall also order that a case worker or other qualified individual determine whether the defendant is eligible to receive Medi-Cal, Medicare, or any other relevant benefits for any programs or evaluations under this section. If the defendant did not previously consent to an eligibility determination at arraignment, the court shall order the eligibility determination upon and as a condition of the defendants agreement to participate in and complete a treatment program as described in this subdivision. (2) A treatment program may include, but is not limited to, drug treatment, mental health treatment, job training, and any other conditions related to treatment or a successful outcome for the defendant that the court finds appropriate. The court must hold regular hearings to review the progress of the defendant. The court shall make referrals to programs that provide services at no cost to the participant and have been deemed by the court, the drug addiction expert, and 9 Item: 12
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the parties to be credible and effective. A defendant may also choose to pay for a program that is approved by the court.
(3) Upon the defendant's successful completion of the treatment program as specified in paragraph (2), the positive recommendation of the treatment program, and the motion of the defendant, prosecuting attorney, the court, or the probation department, the court shall dismiss this charge against the defendant and the provisions of Section 1000. 4 of the Penal Code, as it read on the effective date of this section, shall apply, including the provision that the arrest upon which the defendant was deferred shall be deemed to have never occurred A dismissal based on the successful completion of treatment shall not count as a conviction for any purpose, including for determining punishment pursuant to subdivision (b ). (4) If at any time it appears that the defendant is performing unsatisfactorily in the program, is not benefiting.from treatment, is not amenable to treatment, has refused treatment, or has been convicted of a crime that was committed since starting treatment, the prosecuting attorney, the court on its own, or the probation department may make a motion for entry of judgment and sentencing. After notice to the defendant, the court shall hold a hearing to determine whether judgment should be entered and the defendant sentenced Judgment shall be imposed and the defendant sentenced if the court finds true one or more of the foregoing circumstances. However, except when the defendant has been found to have been convicted of a crime that was committed since starting treatment, the court may re-refer the defendant to treatment if the court finds that it is in the interest of justice to do so, that the defendant is currently amenable to treatment, and if the defendant agrees to participate in, and complete, a treatment program as described in this section.
(5) For time spent in residential treatment, a defendant may earn only actual credits pursuant to Section 2900.5 of the Penal Code and shall not earn conduct credits pursuant to Section 4019 of the Penal Code or any other provision. Time spent in any other type of program or counseling is not eligible for any credits.
(e) (I) Except as provided in paragraph (2), as used in this section, "hard drug" means a substance listed in Sections 11054 or 11055, including a substance containingfentanyl, heroin, cocaine, cocaine base, methamphetamine, or phencyclidine, and the analogs of any of these substances as defined in Sections 11400 and 11401.
(2) As used in this section ''hard drug" does not include cannabis, cannabis products, peyote, lysergic acid diethylamide (LSD) or other psychedelic drugs such as mescaline and psilocybin (mushrooms), or any other substance listed in subdivisions (d) and (e) of Section 11054, or, with the exception of methamphetamine, any other substance listed in subdivision ( d) of Section 11055.
(I) Upon an arrest for a violation of this section, the court shall require judicial review prior to release to make an individualized determination of risk to public safety and likelihood to return to court.
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(g) This section shall not be construed to preclude prosecution or punishment pursuant to any other law.
SECTION 8. Section 490.3 is added to the Penal Code to read:
490. 3. Notwithstanding any other law, in any case involving one or more acts of theft or shoplifting, including but not limited to, violations of Sections 459.5, 484, 488, and 490.2, the value of property or merchandise stolen may be aggregated into a single count or charge, with the sum of the value of all property or merchandise being the values considered in determining the degree of theft.
SECTION 9. Section 666.1 is added to the Penal Code to read:
666.1. (a)(]) Norn.Jithstanding any other law, a person who has two or more prior convictions for any of the offenses listed in paragraph (2), and who is convicted of petty theft or shoplifting, is punishable by imprisonment in the county jail not exceeding one year or pursuant to subdivision (h) of Section 1170. A second or subsequent conviction of this section is punishable by imprisonment in the county jail not exceeding one year or by imprisonment in the state prison.
(2) This section applies to the following offenses, including a conviction that occurred before the effective date of this section:
(A) Petty theft, as described in Section 488 or 490.2.
(B) Grand theft, as described in Section 487, 487h, and in Chapter 5 of Title 13 of Part 1 of the Penal Code (commencing with Section 484).
(C) Theft from an elder or dependent adult, as described in Section 368. (D) The theft or unauthorized use of a vehicle, as described in Section 10851 of the Vehicle Code.
(E) Burglary, as described in Section 459.
(F) Ca17·acking, as described in Section 215.
(G) Robbery, as described in Section 211.
(H) Receiving stolen property, as described in Section 496. (I) Shoplifting, as described in Section 459.5.
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(J) Identity theft and mail theft, as described in Section 530.5. (b) A person subject to charging under this section or actually charged with this section may be referred by a prosecuting attorney's office or by a county probation department to a theft diversion or deferred entry ofjudgment program pursuant to Section 1001.81. lf appropriate, a person admitted to such a program may also be referred to a substance abuse treatment program.
(c) Upon an arrest for a violation of this section, the court shall require judicial review prior to release to make an individualized determination of risk to public safety and likelihood to return to court.
(d}This section shall not be construed to preclude prosecution or punishment pursuant to any other law.
SECTION 10. Section 12022 of the Penal Code is amended to read:
12022. (a) (1) Except as provided in subdivisions (c) and (d), a person who is armed with a firearm in the commission of a felony or attempted felony shall be punished by an additional and consecutive term of imprisonment pursuant to subdivision (h) of Section 1170 for one year, unless the arming is an element of that offense. This additional term shall apply to a person who is a principal in the commission of a felony or attempted felony if one or more of the principals is armed with a firearm, whether or not the person is personally armed with a firearm. (2) Except as provided in subdivision (c), and notwithstanding subdivision (d), if the firearm is an assault weapon, as defined in Section 30510 or 30515, or a machinegun, as defined in Section 16880, or a .50 BMG rifle, as defined in Section 30530, the additional and consecutive term described in this subdivision shall be three years imprisonment pursuant to subdivision (h) of Section 1170 whether or not the arming is an element of the offense of which the person was convicted. The additional term provided in this paragraph shall apply to any person who is a principal in the commission of a felony or attempted felony if one or more of the principals is armed with an assault weapon, machinegun, or a .50 BMG rifle, whether or not the person is personally armed with an assault weapon, machinegun, or a .50 BMG rifle. (b) (1) A person who personally uses a deadly or dangerous weapon in the commission of a felony or attempted felony shall be punished by an additional and consecutive term of imprisonment in the state prison for one year, unless use of a deadly or dangerous weapon is an element of that offense.
(2) If the person described in paragraph (1) has been convicted of carjacking or attempted carjacking, the additional term shall be in the state prison for one, two, or three years. (3) When a person is found to have personally used a deadly or dangerous weapon in the commission of a felony or attempted felony as provided in this subdivision and the weapon is 12 Item: 12
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owned by that person, the court shall order that the weapon be deemed a nuisance and disposed of in the manner provided in Sections 18000 and 18005. (c) ill Notwithstanding the enhancement set forth in subdivision (a), a person who is personally armed with a firearm in the commission of a violation or attempted violation of Section 11351, 11351.5, 11352, 11366.5, 11366.6, 11378, 11378.5, 11379, 11379.5, or 11379.6 of the Health and Safety Code shall be punished by an additional and consecutive term of imprisonment in the state prison pursuant to subdivision (h) of Section 1170 for three, four, or five years. (2) Notwithstanding paragraph (9) of subdivision (h) of Section 1170 of the Penal Code. a defendant convicted of an underlying violation specified in this subdivision who admits an enhancement pursuant to this subdivision or for whom an enhancement pursuant to this subdivision is found true, is punishable by imprisonment in the state prison and not pursuant to subdivision (h) ofSection 1170 ofthe Penal Code.
(d) Notwithstanding the enhancement set forth in subdivision (a), a person who is not personally armed with a firearm who, knowing that another principal is personally armed with a firearm, is a principal in the commission of an offense or attempted offense specified in subdivision ( c ), shall be punished by an additional and consecutive term of imprisonment pursuant to subdivision (h) of Section 1170 for one, two, or three years.
( e) For purposes of imposing an enhancement under Section 1170.1, the enhancements under this section shall count as a single enhancement.
(t) Notwithstanding any other provision of law, the court may strike the additional punishment for the enhancements provided in subdivision ( c) or ( d) in an unusual case where the interests of justice would best be served, if the court specifies on the record and enters into the minutes the circumstances indicating that the interests of justice would best be served by that disposition.
SECTION 11. Section 12022.6 is added to the Penal Code to read:
12022. 6. (a) When any person takes, damages, or destroys any property in the commission or attempted commission of a felony, or commits a felony violation of Section 496, the court shall impose a term in addition and consecutive to the punishment prescribed for the felony or attempted felony of which the defendant has been convicted, as follows:
(1) Jfthe loss or property value exceeds fifty thousand dollars ($50,000), the court shall impose an additional term of one year.
(2) If the loss or property value exceeds two hundred thousand dollars ($200,000), the court shall impose an additional term of two years.
(3) If the loss or property value exceeds one million dollars ($1,000,000), the court shall impose an additional term of three years.
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(4) If the loss or property value exceeds three million dollars ($3,000,000), the court shall impose an additional term of four years.
(5) For every additional loss or property value of three million dollars ($3,000,000), the court shall impose a term of one year in addition to the term specified in paragraph (4). (b) In any accusatory pleading involving multiple charges of taking, damage, or destruction, or multiple violations of Section 4 96, the additional terms provided in this section may be imposed if the aggregate losses to the victims or aggregate property values from all felonies exceed the amounts specified in this section and arise from a common scheme or plan. All pleadings under this section shall remain subject to the rules of joinder and severance stated in Section 954.
(c) The additional terms provided in this section shall not be imposed unless the facts relating to the amounts provided in this section are charged in the accusatory pleading and admitted by the defendant or found to be true by the trier of fact. ( d) Notwithstanding any other law, the court may impose an enhancement pursuant to this section and another section on a single count, including an enhancement pursuant to Section 12022.65.
SECTION 12. Section 12022.65 is added to the Penal Code to read:
12022. 65. (a) Any person who acts in concert with two or more persons to take, attempt to take, damage, or destroy any property, in the commission or attempted commission of a felony shall be punished by an additional and consecutive term of imprisonment of one, two, or three years. (b) The additional term provided in this section shall not be imposed unless the existence of the facts required in subdivision (a) are charged in the accusatory pleading and admitted by the defendant or found to be true by the trier of fact.
(c) Notwithstanding any other law, the court may impose an enhancement pursuant to this section and another section on a single count, including an enhancement pursuant to Section 12022. 6.
SECTION 13. Section 12022.7 of the Penal Code is amended to read:
12022.7. (a) Any person who personally inflicts great bodily injury on any person other than an accomplice in the commission of a felony or attempted felony shall be punished by an additional and consecutive term of imprisonment in the state prison for three years. (b) Any person who personally inflicts great bodily injury on any person other than an accomplice in the commission of a felony or attempted felony which causes the victim to 14 Item: 12
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become comatose due to brain injury or to suffer paralysis of a permanent nature shall be punished by an additional and consecutive term of imprisonment in the state prison for five years. As used in this subdivision, "paralysis" means a major or complete loss of motor function resulting from injury to the nervous system or to a muscular mechanism. ( c) Any person who personally inflicts great bodily injury on a person who is 70 years of age or older, other than an accomplice, in the commission of a felony or attempted felony shall be punished by an additional and consecutive term of imprisonment in the state prison for five years.
( d) Any person who personally inflicts great bodily injury on a child under the age of five years in the commission of a felony or attempted felony shall be punished by an additional and consecutive term of imprisonment in the state prison for four, five, or six years. ( e) Any person who personally inflicts great bodily injury under circumstances involving domestic violence in the commission of a felony or attempted felony shall be punished by an additional and consecutive term of imprisonment in the state prison for three, four, or five years.
As used in this subdivision, "domestic violence" has the meaning provided in subdivision (b) of Section 13700.
(f) ill As used in this section, "great bodily injury" means a significant or substantial physical lllJUry.
(2) As used in this section. a person who sells. furnishes. administers. or gives away a controlled substance is deemed to have personally inflicted great bodily in;ury when the person to whom the substance was sold. furnished. administered. or given suffers a significant or substantial physical in;ury ftom using the substance.
(g) This section shall not apply to murder or manslaughter or a violation of Section 451 or 452.
Subdivisions (a), (b ), ( c ), and ( d) shall not apply if infliction of great bodily injury is an element of the offense.
(h) The court shall impose the additional terms of imprisonment under ei-thef subdivision (a), (b), (c), or (d), but may not impose more than one of those terms for the same offense.
SECTION 14. Chapter 36 (commencing with Section 7599.200) is added to Division 7 of Title 1 of the Government Code, to read:
7599.200. (a) This section shall be known as "Fundingfor the Homelessness, Drug Addiction, and Theft Reduction Act. "
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(b) From monies disbursed to the Board of State and Community Corrections pursuant to paragraph (3) of subdivision (a) of Section 7599.2 of the Government Code and Section 6046.2 of the Penal Code, the Board of State and Community Corrections may allocate appropriate funds to counties and local governments for programs specified in Section 11395 of the Health and Safety Code. This provision shall not preclude funding for this Act from any other source, including but not limited to the Local Revenue Fund 2011 established under Government Code Section 30025 and other such funds designated for substance abuse and mental health treatment.
(c) A defendant charged with a treatment-mandated felony is eligible for any appropriate MediCal or Medicare programs or services, including but not limited to those described in Government Code Section 30025 (f)(l 6)(B)(iii)-(v ), for the defendant's programs specified in Section 113 9 5 of the Health and Safety Code. A county or local government may contract directly with the State Department of Healthcare Services or any other applicable State agency to provide for the provision or administration of any applicable Medi-Cal or Medicare treatment programs.
SECTION 15. Amendments
(a) Except as provided in subdivision (b), this Act shall not be amended by the Legislature except by a statute that furthers the purposes, intent, findings, and declarations of the Act and is passed in each house by roll call vote entered in the journal, two-thirds of the membership of each house concurring, or by a statute that becomes effective only when approved by the voters. (b) The Legislature may, by majority vote, amend Section 11369 of the Health & Safety Code only to expand the list of drugs that qualify as a "hard drug" and to expand the list of convictions to which it applies, and may, by majority vote, amend Section 11395 of the Health & Safety Code only to expand the list of drugs that qualify as a "hard drug" and to expand the list of applicable prior convictions , and may, by majority vote, amend Section 666.1 of the Penal Code only to expand the list of applicable prior convictions.
SECTION 16. Severability
If any provision of this Act, or any part of any provision, or the application of any provision or part to any person or circumstance is for any reason held to be invalid or unconstitutional, the remaining provisions and applications of provisions shall not be affected, but shall remain in full force and effect, and to this end the provisions of this Act are severable.
SECTION 17. Conflicting Initiatives
(a) This Act creates a new drug treatment statute and changes the penalties for career and serial thieves. In the event that this Act and another initiative measure or measures relating to the same subject appear on the same statewide ballot, the provisions of the other measure or measures 16 Item: 12
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shall be deemed to be in conflict with this measure. In the event this measure receives a greater number of affirmative votes than a measure deemed to be in conflict with it, the provisions of this measure shall prevail in their entirety, and the provisions of the other measure or measures shall be null and void.
(b) If this measure is approved by voters but superseded by law by any other conflicting measure approved by the voters at the same election, and the conflicting ballot measure is later held invalid, this measure shall be self-executing and given full force and effect. 17 Item: 12
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CITY COUNCIL AGENDA REPORT
MEETING DATE: 7/16/2024
DEPARTMENT: City Manager
SUBJECT:
LEGISLATIVE AND REGULATORY MATTERS
RECOMMENDED ACTION(S):
1. Receive and file a report summarizing legislative and regulatory matters with the potential to impact the City of Lake Forest.
2. Adopt the policy positions recommended by staff on various legislation with the potential to impact the City of Lake Forest.
EXECUTIVE SUMMARY:
As part of its Legislative Program, the City Council adopts a Legislative Platform before the State’s Legislative Session starts. This platform contains policy guidelines rooted in the preservation of local control and municipal financial independence. The City Council adopted the 2024 Legislative Platform (Attachment 1) on February 20, 2024.
This report provides a summary of proposed legislation with the potential to significantly impact the operational, financial position, or decision-making capacity of the City of Lake Forest. Each summary below includes a staff recommendation on whether the City Council should support or oppose the legislation. The positions and recommendations from CalCities and the Association of California Cities – Orange County (“ACC-OC”) are also included in this report if a position has been adopted or specified.
Revenue and Fees
Senate Bill 937
Staff Recommendation Position: Oppose Unless Amended
CalCities Position: Oppose Unless Amended
ACCOC Position: Not Specified
Status: Pending Review in Final House
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SB 937 would prohibit cities from collecting the payment of development fees for the construction of public improvements or facilities until a development receives its certificate of occupancy or once construction commences for the projects the fees will be used for. While this bill would provide builders with some level of certainty regarding the fees and other conditions applicable to their proposed development before they make substantial investments, it would prevent cities from recovering costs related to development projects and result in an inadequate strain on public facilities. Additionally, SB 937 prohibits local agencies from posting a performance bond or a letter of credit from a federally insured, recognized depository institution to guarantee payment of any fees or charges associated with the proposed development project. This is concerning as local governments need to be able to guarantee that the collection of fees is allowed through a legally binding agreement. This prohibition does not allow cities to ensure that developers have the necessary means to complete a project, which could leave local governments with additional costs. SB 937 also extends the use period for housing entitlements by 24 months for designated residential development projects.
Housing and Community Development
Assembly Bill 1886
Staff Recommendation Position: Oppose
CalCities Position: Oppose
ACCOC Position: Oppose Unless Amended
Status: Pending Review in Final House
AB 1886 removes a city’s ability to “self-certify” its housing element. Under current housing element law, a city may disagree with the Department of Housing and Community Development (“HCD”), explain why its housing element is in substantial compliance with the law, and then adopt or “self-certify” that housing element in substantial compliance with housing element law. The proposed measure would allow the Builder’s Remedy to begin as soon as HCD or a court determines a city’s housing element is out of compliance. “Builder’s Remedy,” under the Housing Accountability Act, is a disciplinary provision that applies when a city has not adopted a revised Housing Element in compliance with state law. As a result, a city would not be able to deny a qualifying housing development project even if it is inconsistent with the general plan and zoning ordinance. This bill would require cities to submit specified findings to HCD with an adopted housing element or amendment and would impose a state-mandated local program.
Assembly Bill 1893
Staff Recommendation Position: Oppose Unless Amended
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CalCities Position: Oppose Unless Amended
ACCOC Position: Not Specified
Status: Pending Review in Final House
AB 1893 would allow the Builder’s Remedy to apply if HCD determines that a local jurisdiction is not in substantial compliance with Housing Element Law which would reduce local authority on planning and development decisions. If enacted, AB 1893 will revise the Builder’s Remedy provision, clarify when it applies and when housing projects must be approved, and require expedited application processing times. This measure would limit the Builder’s Remedy to areas zoned for residential, retail, office, or parking are permissible uses and sets a cap on maximum density. This bill adds guardrails for Builder’s Remedy projects by restricting where these projects can occur, limiting density, and allowing the use of objective development standards in some circumstances.
Despite these needed guardrails, the bill, in its current form, would prohibit a city from denying certain housing developments even if it is meeting or exceeding state allocated housing goals.
Senate Bill 1037
Staff Recommendation Position: Oppose
CalCities Position: Oppose
ACCOC Position: Not Specified
Status: Pending Review in Final House
SB 1037 would allow the Attorney General to take legal action against a city and seek fines up to $50,000 a month for failure to adopt a compliant housing element or if the city does not follow state laws that require ministerial approval of certain housing projects. SB 1037 does not provide an opportunity for cities to correct an honest mistake or address a genuine difference in interpreting the law.
Even those jurisdictions acting in good faith could be subject to significant fines and be required to pay the Attorney General for all costs investigating and prosecuting the action, including expert witness fees and attorney’s fees.
Assembly Bill 2485
Staff Recommendation Position: Support
CalCities Position: Support
ACCOC Position: Support
Status: Pending Review in Final House
This measure would require the Department of Housing and Community Development (HCD) to publish data sources, analyses, and methodology before finalizing regional housing need determinations, and to assemble an advisory panel for subsequent revisions to ensure transparency and expert consultation in Item: 13
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the process. This measure encourages collaboration, ensures accountability, and builds trust in the decision-making process.
Assembly Bill 3093
Staff Recommendation Position: Oppose Unless Amended
CalCities Position: Oppose Unless Amended
ACCOC Position: Oppose
Status: Pending Review in Final House
AB 3093 adds two new income categories to the Regional Housing Needs Assessment (”RHNA”) framework: acutely low-income ("ALI”) and extremely lowincome (”ELI”). The current calculation method for very low-income households would be removed and the two new categories, ALI and ELI would be specified as a special housing need. This could lead to duplicating planning efforts since existing housing element law already requires cities to assess the need for emergency shelters and assist in developing adequate housing to meet the needs of extremely low-income households. This bill does not provide enough clarity on how the allocations for these new categories will be determined.
Recovery Housing
Assembly Bill 2574
Staff Recommendation Position: Support
CalCities Position: Sponsor/Support
ACCOC Position: Support
Status: Pending Review in Final House
AB 2574 would expand reporting requirements for licensed recovery home operators by requiring them to disclose to the Department of Health Care Services whether the licensee or associated parties owns or has financial interest in a recovery residence, and if there are contractual relationships with entities offering recovery services outside certified programs or licensed facilities. This bill would provide transparency to ensure that if a recovery residence is operated as a business with a licensed treatment facility, it is regulated like a business and not like a residential home.
Assembly Bill 2081
Staff Recommendation Position: Support
CalCities Position: Co-sponsor/Support
ACCOC Position: Support
Status: Pending Review in Final House
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This bill would require the operator of a licensed recovery home to disclose to those seeking care that they can check the Department of Health Care Services website to confirm a facility’s compliance with state licensing laws. AB 2081 would ensure that those seeking treatment easily know what violations, if any, have occurred within a treatment facility and would hold providers accountable by making these violations easily visible to the public.
Retail Theft and Enforcement
Assembly Bill 2943
Staff Recommendation Position: Support if Amended
CalCities Position: Support if Amended
ACCOC Position: Support
Status: Pending Review in Final House
AB 2943 would make the following changes to statute regarding retail theft:
increase the terms of probation, clarify the ability for police to arrest without witnessing the crime, and extend the sunset date on the organized retail theft statute. These provisions would allow for local jurisdictions to better address crime, provide additional clarification on the aggregation section, and modify ability to arrest and probation sections to ensure this bill is as comprehensive as possible.
Assembly Bill 1960
Staff Recommendation Position: Support
CalCities Position: Support
ACCOC Position: Support
Status: Pending Review in Final House
AB 1960 creates sentencing enhancements for taking, damaging, or destroying property while committing or attempting to commit a felony. These sentencing enhancements will allow prosecutors to impose a stiffer sentence for retail theft.
Assembly Bill 1779
Staff Recommendation Position: Support
CalCities Position: Support
ACCOC Position: Not Specified
Status: Pending Review in Final House
This bill would expand the jurisdiction for charging retail theft offenses and the recovery of stolen property to include the county where the theft or sale of stolen Item: 13
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property occurred, the county in which the stolen property was recovered, and the county in which the defendant organized or instigated the offenses. District Attorneys will be required to submit a written agreement on the county leading the prosecution of these offenses. Expanding coordination to prosecute theft offenses across multiple counties would ensure retail theft offenders are held accountable.
Senate Bill 982
Staff Recommendation Position: Support
CalCities Position: Support
ACCOC Position: Not Specified
Status: Pending Review in Final House
SB 982 makes the statute, which would otherwise expire January 1, 2026, indefinite. This law makes organized retail theft punishable as a misdemeanor or a felony. Organized retail theft includes acting in concert with one or more persons to steal merchandise, possession of merchandise known or believed to have been stolen, and committing other actions to undertake acts of theft (recruiting, coordinating, organizing, supervising, directing, managing, or financing).
Senate Bill 1242
Staff Recommendation Position: Support
CalCities Position: Support
ACCOC Position: Not Specified
Status: Pending Review in Final House
SB 1242 makes setting a fire within a merchant’s premises to facilitate organized retail theft an aggravating factor to increase the sentencing of the offender. This bill would increase penalties from these acts by designating them as an aggravating factor, making the offender eligible for increased sentencing.
Senate Bill 1416
Staff Recommendation Position: Support
CalCities Position: Support
ACCOC Position: Not Specified
Status: Pending Review in Final House
SB 1416 creates increased sentences for selling, exchanging, or returning stolen items for value, or attempting to commit any of those offenses with property obtained through theft from a retail business. Additionally, this bill would make these enhancements apply to any person acting in concert with another person Item: 13
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to commit these crimes. By creating these sentencing enhancements, this bill would be another tool for preventing and mitigating the impacts of retail theft.
Water
Senate Bill 1218
Staff Recommendation Position: Watch
CalCities Position: Watch
ACCOC Position: Support
Status: Pending Review in Final House
SB 1218 would declare that it is the established policy of the State to encourage, but not mandate, the development of emergency water supplies, and to support their use during times of water shortage. SB 1218 fosters investments in existing and new water infrastructure and the development of new water supplies and storage facilities across the state.
Senate Bill 366
Staff Recommendation Position: Support
CalCities Position: Support
ACCOC Position: Support
Status: Pending Review in Final House
SB 366 would require the Department of Water Resources to update the California Water Plan to establish a stakeholder advisory committee and to expand the membership of the committee to include tribes, labor, and environmental justice interests. Additionally, SB 366 would require the Department of Water Resources to coordinate with the California Water Commission, the State Water Resources Control Board, other state and federal agencies, as appropriate, and the stakeholder advisory committee to develop a comprehensive plan for addressing the state’s water needs and meet specified long-term water supply targets. Lastly, this bill would require the California Water Plan to provide recommendations and strategies to ensure enough water supply for all designated beneficial uses.
FISCAL IMPACT:
There is no fiscal impact associated with the recommended action.
ATTACHMENTS:
1. 2024 Legislative Platform
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2. Bill Texts
Initiated By: Sofia de Melo, City Manager Intern
Submitted By: Nidia Ruelas, Assistant to the City Manager Approved By: Keith Neves, Assistant City Manager
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ATTACHMENT 1
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CITY OF LAKE FOREST
2024 LEGISLATIVE PLATFORM
The Legislative Platform (“Platform”) defines the City’s Policy guidelines and provides the foundation for advocacy efforts at the federal, state, and local levels.
Staff uses this Platform to identify relevant topic areas and subject matter, and makes recommendations to the City Council on specific legislation consistent with the policy guidelines. Additionally, in the event it is necessary for the City to respond to a legislative proposal in a timeframe that does not allow the City Council to take formal action, staff would express positions on bills in accordance with these guidelines, and then seek City Council direction at the appropriate time.
Policy Guidelines:
1. The City supports legislation that leads to greater financial independence from federal, state and/or county government, and protects local resources from seizure by federal, state and/or county agencies.
2. The City supports legislation maintaining maximum local flexibility in all areas of its responsibility and operations and opposes legislation that imposes intrusive, unnecessary or unfunded state-imposed mandates or preempts local authority.
3. The City supports legislation that advocates fair and proportionate representation on countywide and regional boards.
4. The City supports modification to the California Environmental Quality Act (“CEQA”) to eliminate duplicative and unnecessary provisions of the existing law.
5. The City supports efforts to reestablish the authority and financing capability previously afforded to local governments by redevelopment through legislation designed to support businesses through economic development and the City supports efforts to facilitate economic development efforts that enhance opportunities for local businesses.
6. The City supports legislative efforts that would amend existing law to ensure that prevailing wage rates do not impede its ability to pursue small-dollar projects and lower operating costs.
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7. The City supports efforts to amend the current occupancy calculation in the Uniform Housing Code (“UHC”) to achieve a more reasonable standard, thereby, improving the health, safety, and residential character of our community.
8. The City supports efforts, at both the federal and state level, to provide local agencies with regulatory tools related to short-term rentals and other uses in residential areas that have the ability to affect the quality of life.
9. The City supports bills that would lower taxation rates for businesses and residents.
10. The City supports religious freedom and legislation protecting religious freedom at both the state and federal level.
11. The City opposes legislation or policies that limit the type and or number of clean, renewable, sustainable energy sources available to consumers.
12. The City opposes legislation that makes the City more dependent on federal, state, and/or county government or agencies for policy direction.
13. The City opposes any legislation that is inconsistent with the doctrine of home rule, interferes with local exercise of police powers over local land use, or requires a federal, state, and/or county entity to develop model planning practices and policies.
14. The City opposes legislation or ballot initiatives that would alter the legislative intent of Proposition 13, including a split real-property tax roll that would affect commercial property and any amendment that would affect residential property.
15. The City opposes legislation to create new financial burdens or erode public safety through realignment implementation.
16. The City opposes legislation to limit the City’s ability to contract for municipal services.
17. The City opposes legislation that seeks to impede the construction of Portola Parkway.
18. The City Council opposes efforts by the State Legislature to assess taxes on public goods and services such as water and electricity.
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19. The City opposes legislation that would lower the vote threshold as a method to impose new taxes or create new financing opportunities.
20. The City supports legislative efforts that reduce or delay the financial and compliance impacts of State-mandated organics recycling.
21. The City supports maximum flexibility with regard to expending grant funds that address economic recovery associated with public health declarations, natural disasters, and other emergencies.
22. The City will take into consideration the strategic goals adopted by CalCities.
23. Staff is authorized to continue to advocate a position for a bill which has been amended into a new bill number as long as the language and intent remain substantially unchanged.
24. The City supports legislation that advances the practice or policy of favoring individuals in hiring and similar contexts based solely on their abilities and personal merits, including education, skills, experience, and other similar factors.
25. The City supports legislation that invests in, provides for the research of, and promotes the development of new water storage and new water supplies.
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ATTACHMENT 2
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AMENDED IN ASSEMBLY JUNE 27, 2024
AMENDED IN ASSEMBLY JUNE 17, 2024
AMENDED IN SENATE APRIL 8, 2024
AMENDED IN SENATE APRIL 1, 2024
SENATE BILL No. 937
Introduced by Senator Wiener
(Coauthor: Assembly Member Grayson)
January 17, 2024
An act to amend Section 66007 of, and to add Section 65914.6 to, the Government Code, relating to land use.
legislative counsel’s digest
SB 937, as amended, Wiener. Development projects: permits and other entitlements: fees and charges.
The Planning and Zoning Law requires each county and each city to adopt a comprehensive, long-term general plan for its physical development, and the development of specified land outside its boundaries, that includes, among other mandatory elements, a housing element. Existing law, the Permit Streamlining Act, among other things, requires a public agency that is the lead agency for a development project to approve or disapprove that project within specified time periods. Existing law extended by 18 months the period for the expiration, effectuation, or utilization of a housing entitlement, as defined, that was issued before, and was in effect on, March 4, 2020, and that would expire before December 31, 2021, except as specified.
Existing law provides that if the state or a local agency extended the otherwise applicable time for the expiration, effectuation, or utilization of a housing entitlement for not less than 18 months, as specified, that 95 Item: 13
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housing entitlement would not be extended an additional 18 months pursuant to these provisions.
This bill would extend by 24 months the period for the expiration, effectuation, or utilization of a housing entitlement for a priority designated residential development project, as those terms are defined, that was issued before January 1, 2024, and that will expire before December 31, 2025, except as specified. The bill would toll this 24-month extension during any time that the housing entitlement is the subject of a legal challenge. By adding to the duties of local officials with respect to housing entitlements, this bill would impose a state-mandated local program. The bill would include findings that changes proposed by this bill address a matter of statewide concern rather than a municipal affair and, therefore, apply to all cities, including charter cities.
The Mitigation Fee Act regulates fees for development projects, fees for specific purposes, including water and sewer connection fees, and fees for solar energy systems, among others. The act, among other things, requires local agencies to comply with various conditions when imposing fees, extractions, or charges as a condition of approval of a proposed development or development project.
The act prohibits a local agency that imposes fees or charges on a residential development for the construction of public improvements or facilities from requiring the payment of those fees or charges until the date of the final inspection or the date the certificate of occupancy is issued, whichever occurs first, except for utility service fees, which the local agency is authorized to collect at the time an application for utility service is received.
This bill would limit the utility service fees exception described above to utility service fees related to connections, and cap those fees at the costs incurred by the utility provider resulting from the connection activities.
The act authorizes a local agency to require the payment sooner than the date of the final inspection or the date the certificate of occupancy is issued, whichever occurs first, if specified conditions are met, including if the fees or charges are to reimburse the local agency for expenditures previously made.
This bill would, for priority designated residential development projects, as defined, prohibit a local agency from requiring payment of fees or charges on the residential development for the construction of public improvements or facilities until the date the first certificate of 95 SB 937 — 2 —
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occupancy or first temporary certificate of occupancy is issued, as specified. The bill would authorize the local agency to require the payment of those fees or charges at an earlier time if certain conditions are met, except as specified.
If any fee or charge described above is not fully paid prior to issuance of a building permit, the act authorizes the local agency issuing the building permit to require the property owner to execute a contract to pay the fee or charge as a condition of issuance of the building permit, as specified.
This bill would authorize the governing body of a local agency to authorize an officer or employee of the local agency to approve and execute contracts described above, and would require the local agency to post a model form of contract on its internet website, if it maintains an internet website, before requiring execution of a contract under the provisions described above.
The California Constitution requires the state to reimburse local agencies and school districts for certain costs mandated by the state.
Statutory provisions establish procedures for making that reimbursement.
This bill would provide that no reimbursement is required by this act for a specified reason.
Vote: majority. Appropriation: no. Fiscal committee: yes.
State-mandated local program: yes.
The people of the State of California do enact as follows:
line 1 SECTION 1. Section 65914.6 is added to the Government line 2 Code, to read:
line 3 65914.6. (a) Except as provided in subdivision (b), line 4 notwithstanding any law, including any inconsistent provision of line 5 a local agency’s general plan, ordinances, or regulations, the line 6 otherwise applicable time for the expiration, effectuation, or line 7 utilization of a housing entitlement for a priority designated line 8 residential development project that is within the scope of the line 9 timeframes specified in paragraphs (1) and (2) is extended by 24 line 10 months. For the purposes of this section, housing entitlements that line 11 are extended are entitlements where both of the following apply:
line 12 (1) It was issued prior to and was in effect on January 1, 2024. line 13 (2) It will expire prior to December 31, 2025.
line 14 The otherwise applicable time for the utilization of a housing line 15 entitlement provided by this section includes any requirement to 95 — 3 — SB 937
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line 1 request the issuance of a building permit within a specified period line 2 of time.
line 3 (b) If the state or a local agency extends, on or after January 1, line 4 2024, but before the effective date of the act adding this section, line 5 the otherwise applicable time for the expiration, effectuation, or line 6 utilization of a housing entitlement for not less than 24 months line 7 and pursuant to the same conditions provided in subdivision (a), line 8 that housing entitlement shall not be extended for an additional 24 line 9 months by operation of subdivision (a).
line 10 (c) For purposes of this section, the following definitions apply:
line 11 (1) “Designated residential development project” means a line 12 residential development project that meets any of the following line 13 conditions:
line 14 (A) The project dedicates 100 percent of units, exclusive of a line 15 manager’s unit or units, to lower income households, as defined line 16 by Section 50079.5 of the Health and Safety Code. line 17 (B) The project meets the requirements described in Section line 18 65662.
line 19 (C) The project is approved by a local government pursuant to line 20 Article 2 (commencing with Section 65912.110) or Article 3 line 21 (commencing with Section 65912.120) of Chapter 4.1. line 22 (D) The project meets the requirements described in subdivision line 23 (a) of Section 65913.4.
line 24 (E) The project meets the criteria described in subdivision (c) line 25 of Section 65913.16.
line 26 (F) The project is entitled to a density bonus pursuant to line 27 subdivision (b) of Section 65915.
line 28 (G) The project includes 10 or fewer units.
line 29 (1)
line 30 (2) “Housing entitlement” means any of the following:
line 31 (A) A legislative, adjudicative, administrative, or any other kind line 32 of approval, permit, or other entitlement necessary for, or pertaining line 33 to, a housing development project issued by a state agency. line 34 (B) An approval, permit, or other entitlement issued by a local line 35 agency for a housing development project that is subject to Chapter line 36 4.5 (commencing with Section 65920).
line 37 (C) A ministerial approval, permit, or entitlement by a local line 38 agency required as a prerequisite to issuance of a building permit line 39 for a housing development project.
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line 1 (D) A requirement to submit an application for a building permit line 2 within a specified period of time after the effective date of a line 3 housing entitlement described in subparagraph (B) or (C). line 4 (E) A vested right associated with an approval, permit, or other line 5 entitlement described in subparagraphs (A) to (D), inclusive. line 6 (2)
line 7 (3) For the purposes of this section, a housing entitlement does line 8 not include any of the following:
line 9 (A) A development agreement issued pursuant to Article 2.5 line 10 (commencing with Section 65864).
line 11 (B) An approved or conditionally approved tentative map that line 12 is extended for a minimum of 24 months pursuant to Section line 13 66452.6 on or after January 1, 2024.
line 14 (C) A preliminary application as defined in Section 65941.1. line 15 (3)
line 16 (4) “Housing development project” means a residential line 17 development or mixed-use development in which at least two-thirds line 18 of the square footage of the development is designated for line 19 residential use. Both of the following apply for the purposes of line 20 calculating the square footage usage of a development for purposes line 21 of this section:
line 22 (A) The square footage of a development shall include any line 23 additional density, floor area, and units, and any other concession, line 24 incentive, or waiver of development standards pursuant to Section line 25 65915.
line 26 (B) The square footage of a development shall not include any line 27 underground space, including, but not limited to, a basement or line 28 underground parking garage.
line 29 (4)
line 30 (5) “Local agency” means a county, city, whether general law line 31 or chartered, city and county, school district, special district, line 32 authority, agency, any other municipal public corporation or line 33 district, or other political subdivision of the state. line 34 (5) “Priority residential development project” means a residential line 35 development project that meets any of the following conditions:
line 36 (A) The project dedicates 100 percent of units, exclusive of a line 37 manager’s unit or units, to lower income households, as defined line 38 by Section 50079.5 of the Health and Safety Code. line 39 (B) The project meets the requirements described in Section line 40 65662.
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line 1 (C) The project is approved by a local government pursuant to line 2 Article 2 (commencing with Section 65912.110) or Article 3 line 3 (commencing with Section 65912.120) of Chapter 4.1. line 4 (D) The project meets the requirements described in subdivision line 5 (a) of Section 65913.4.
line 6 (E) The project meets the criteria described in subdivision (c) line 7 of Section 65913.16.
line 8 (F) The project is entitled to a density bonus pursuant to line 9 subdivision (b) of Section 65915.
line 10 (G) The project includes 10 or fewer units.
line 11 (d) The extension granted pursuant to subdivision (a) shall be line 12 tolled during any time that the housing entitlement is the subject line 13 of a legal challenge.
line 14 (e) Nothing in this section is intended to preclude a local line 15 government from exercising its existing authority to provide an line 16 extension to an entitlement identified in this section. line 17 (f) The Legislature finds and declares that ensuring planned line 18 housing projects can continue without delays due to expiring line 19 entitlements is a matter of statewide concern and is not a municipal line 20 affair as that term is used in Section 5 of Article XI of the line 21 California Constitution. Therefore, this section applies to all cities, line 22 including charter cities.
line 23 SEC. 2. Section 66007 of the Government Code is amended line 24 to read:
line 25 66007. (a) Except as otherwise provided in subdivisions (b) line 26 and (h), any local agency that imposes any fees or charges on a line 27 residential development for the construction of public line 28 improvements or facilities shall not require the payment of those line 29 fees or charges, notwithstanding any other provision of law, until line 30 the date of the final inspection, or the date the certificate of line 31 occupancy is issued, whichever occurs first. However, utility line 32 service fees related to connections may be collected at the time an line 33 application for service is received, provided that those fees do not line 34 exceed the costs incurred by the utility provider resulting from the line 35 connection activities. If the residential development contains more line 36 than one dwelling, the local agency may determine whether the line 37 fees or charges shall be paid on a pro rata basis for each dwelling line 38 when it receives its final inspection or certificate of occupancy, line 39 whichever occurs first; on a pro rata basis when a certain line 40 percentage of the dwellings have received their final inspection or 95 SB 937 — 6 —
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line 1 certificate of occupancy, whichever occurs first; or on a lump-sum line 2 basis when the first dwelling in the development receives its final line 3 inspection or certificate of occupancy, whichever occurs first. line 4 (b) (1) Notwithstanding subdivision (a), the local agency may line 5 require the payment of those fees or charges at an earlier time if line 6 (A) the local agency determines that the fees or charges will be line 7 collected for public improvements or facilities for which an account line 8 has been established and funds appropriated and for which the line 9 local agency has adopted a proposed construction schedule or plan line 10 before final inspection or issuance of the certificate of occupancy line 11 or (B) the fees or charges are to reimburse the local agency for line 12 expenditures previously made. “Appropriated,” as used in this line 13 subdivision, means authorization by the governing body of the line 14 local agency for which the fee is collected to make expenditures line 15 and incur obligations for specific purposes.
line 16 (2) (A) Paragraph (1) does not apply to units reserved for line 17 occupancy by lower income households included in a residential line 18 development proposed by a nonprofit housing developer in which line 19 at least 49 percent of the total units are reserved for occupancy by line 20 lower income households, as defined in Section 50079.5 of the line 21 Health and Safety Code, at an affordable rent, as defined in Section line 22 50053 of the Health and Safety Code. In addition to the contract line 23 that may be required under subdivision (d), a city, county, or city line 24 and county may require the posting of a performance bond or a line 25 letter of credit from a federally insured, recognized depository line 26 institution to guarantee payment of any fees or charges that are line 27 subject to this paragraph. Fees and charges exempted from line 28 paragraph (1) under this paragraph shall become immediately due line 29 and payable when the residential development no longer meets line 30 the requirements of this paragraph.
line 31 (B) The exception provided in subparagraph (A) does not apply line 32 to fees and charges levied pursuant to Chapter 6 (commencing line 33 with Section 17620) of Part 10.5 of Division 1 of Title 1 of the line 34 Education Code.
line 35 (c) All of the following apply to priority designated residential line 36 development projects:
line 37 (1) If a local agency imposes any fees or charges on the line 38 residential development for the construction of public line 39 improvements or facilities, then all of the following conditions line 40 apply:
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line 1 (A) (i) Notwithstanding any other law, the local agency shall line 2 not require the payment of those fees or charges until the date the line 3 first certificate of occupancy is issued. or first temporary certificate line 4 of occupancy is issued, whichever occurs first.
line 5 (ii) Notwithstanding clause (i), utility service fees related to line 6 connections may be collected at the time an application for service line 7 is received, provided that those fees do not exceed the costs line 8 incurred by the utility provider resulting from the connection line 9 activities.
line 10 (iii) Clause (i) shall not apply if construction of the residential line 11 development does not begin within five years of the date upon line 12 which the building permit is issued.
line 13 (B) The amount of the fees and charges shall be the same amount line 14 as would have been paid had the fees and charges been paid prior line 15 to the issuance of building permits, and the local agency shall not line 16 charge interest or other fees on any amount deferred pursuant to line 17 this paragraph.
line 18 (C) If the development contains more than one dwelling, the line 19 local agency may determine whether the fees or charges described line 20 shall be paid on a pro rata basis for each dwelling when it receives line 21 its certificate of occupancy, on a pro rata basis when a certain line 22 percentage of the dwellings have received their certificate of line 23 occupancy, or on a lump-sum basis when all the dwellings in the line 24 development receive their certificate of occupancy. line 25 (D) Notwithstanding any other law, the local agency may line 26 withhold a certificate of occupancy or a temporary certificate of line 27 occupancy until payment of those fees or charges is received. line 28 (2) (A) Notwithstanding paragraph (1), the local agency may line 29 require the payment of those fees or charges at an earlier time if line 30 (i) the local agency determines that the fees or charges will be line 31 collected for public improvements or facilities for which an account line 32 has been established and funds appropriated and for which the line 33 local agency has adopted a proposed construction schedule or plan line 34 prior to final inspection or issuance of the certificate of occupancy line 35 or (ii) the fees or charges are to reimburse the local agency for line 36 expenditures previously made. “Appropriated,” as used in this line 37 paragraph, means authorization by the governing body of the local line 38 agency for which the fee is collected to make expenditures and line 39 incur obligations for specific purposes.
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line 1 (G) The project includes 10 or fewer units.
line 2 (d) (1) If any fee or charge specified in subdivision (a) or (c) line 3 is not fully paid prior to issuance of a building permit for line 4 construction of any portion of the residential development line 5 encumbered thereby, the local agency issuing the building permit line 6 may require the property owner, or lessee if the lessee’s interest line 7 appears of record, as a condition of issuance of the building permit, line 8 to execute a contract to pay the fee or charge, or applicable portion line 9 thereof, within the time specified in subdivision (a) or (c). If the line 10 fee or charge is prorated pursuant to subdivision (a) or (c), the line 11 obligation under the contract shall be similarly prorated. line 12 (2) The obligation to pay the fee or charge shall inure to the line 13 benefit of, and be enforceable by, the local agency that imposed line 14 the fee or charge, regardless of whether it is a party to the contract. line 15 The contract shall contain a legal description of the property line 16 affected, shall be recorded in the office of the county recorder of line 17 the county and, from the date of recordation, shall constitute a lien line 18 for the payment of the fee or charge, which shall be enforceable line 19 against successors in interest to the property owner or lessee at the line 20 time of issuance of the building permit. The contract shall be line 21 recorded in the grantor-grantee index in the name of the public line 22 agency issuing the building permit as grantee and in the name of line 23 the property owner or lessee as grantor. The local agency shall line 24 record a release of the obligation, containing a legal description line 25 of the property, in the event the obligation is paid in full, or a partial line 26 release in the event the fee or charge is prorated pursuant to line 27 subdivision (a) or (c).
line 28 (3) The contract may require the property owner or lessee to line 29 provide appropriate notification of the opening of any escrow for line 30 the sale of the property for which the building permit was issued line 31 and to provide in the escrow instructions that the fee or charge be line 32 paid to the local agency imposing the same from the sale proceeds line 33 in escrow prior to disbursing proceeds to the seller. line 34 (4) The governing body of a local agency may authorize an line 35 officer or employee of the local agency to approve and execute line 36 contracts under this subdivision on behalf of the local agency. line 37 (5) Before requiring execution of a contract under this line 38 subdivision, the local agency shall post a model form of contract line 39 on its internet website, if it maintains an internet website. 95 SB 937 — 10 —
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line 1 (e) This section applies only to fees collected by a local agency line 2 to fund the construction of public improvements or facilities. It line 3 does not apply to fees collected to cover the cost of code line 4 enforcement or inspection services, or to other fees collected to line 5 pay for the cost of enforcement of local ordinances or state law. line 6 (f) “Final inspection” inspection,” “temporary certificate of line 7 occupancy,” or “certificate of occupancy,” as used in this section, line 8 has the same meaning as described in Sections 305 and 307 of the line 9 Uniform Building Code, International Conference of Building line 10 Officials, 1985 edition.
line 11 (g) Methods of complying with the requirement in subdivision line 12 (b) that a proposed construction schedule or plan be adopted, line 13 include, but are not limited to, (1) the adoption of the capital line 14 improvement plan described in Section 66002, or (2) the submittal line 15 of a five-year plan for construction and rehabilitation of school line 16 facilities pursuant to subdivision (c) of Section 17017.5 of the line 17 Education Code.
line 18 (h) A local agency may defer the collection of one or more fees line 19 up to the close of escrow. This subdivision shall not apply to fees line 20 and charges levied pursuant to Chapter 6 (commencing with line 21 Section 17620) of Part 10.5 of Division 1 of Title 1 of the line 22 Education Code.
line 23 SEC. 3. No reimbursement is required by this act pursuant to line 24 Section 6 of Article XIIIB of the California Constitution because line 25 a local agency or school district has the authority to levy service line 26 charges, fees, or assessments sufficient to pay for the program or line 27 level of service mandated by this act, within the meaning of Section line 28 17556 of the Government Code.
O
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AMENDED IN SENATE JULY 1, 2024
AMENDED IN SENATE JUNE 11, 2024
AMENDED IN ASSEMBLY APRIL 15, 2024
AMENDED IN ASSEMBLY APRIL 1, 2024
california legislature—2023–24 regular session
ASSEMBLY BILL No. 1886
Introduced by Assembly Member Alvarez
(Coauthor: Assembly Member Wicks)
January 22, 2024
An act to amend Sections 65585 and 65589.5 of the Government Code, relating to land use.
legislative counsel’s digest
AB 1886, as amended, Alvarez. Housing Element Law: substantial compliance: Housing Accountability Act.
(1) The Planning and Zoning Law requires a city or county to adopt a general plan for land use development within its boundaries that includes, among other things, a housing element. Existing law, commonly referred to as the Housing Element Law, prescribes requirements for a city’s or county’s preparation of, and compliance with, its housing element, and requires the Department of Housing and Community Development to review and determine whether the housing element substantially complies with the Housing Element Law, as specified. If the department finds that a draft housing element or amendment does not substantially comply with the Housing Element Law, existing law requires the legislative body of the city or county to either (A) change the draft element or amendment to substantially
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comply with the Housing Element Law or (B) adopt the draft housing element or amendment without changes and make specified findings as to why the draft element or amendment substantially complies with the Housing Element Law despite the findings of the department.
Existing law requires a planning agency to promptly submit an adopted housing element or amendment to the department and requires the department to review the adopted housing element or amendment and report its findings to the planning agency within 60 days.
This bill would require a planning agency that makes the above-described findings as to why a draft housing element or amendment substantially complies with the Housing Element Law despite the findings of the department to submit those findings to the department. The bill would require the department to review those finding in its review of an adopted housing element or amendment. The bill would create a rebuttable presumption of validity for the department’s findings as to whether the adopted element or amendment substantially complies with the Housing Element Law. Because the bill would require planning agencies to submit specified findings to the department with an adopted housing element or amendment, the bill would impose a state-mandated local program.
This bill would provide that a housing element or amendment is considered substantially compliant with the Housing Element Law when the local agency has adopted a housing element or amendment, the department or a court of competent jurisdiction determines the adopted housing element or amendment to be in substantial compliance with the Housing Element Law, and the department’s compliance findings have not been superseded by subsequent contrary findings by the department or by a decision of a court of competent jurisdiction or the court’s decision has not been overturned or superseded by a subsequent court decision or by statute. The bill would provide that these provisions are declaratory of existing law and do not alter the interpretation of the terms “substantially complies” or “substantial compliance” as set forth in Section 44 of Chapter 1009 of the Statutes of 1984.
(2) Existing law, the Housing Accountability Act, among other things, prohibits a local agency from disapproving, or conditioning approval in a manner that renders infeasible, a housing development project for very low, low-, or moderate-income households unless the local agency makes written findings as to one of certain sets of conditions, as specified. One set of conditions is that (A) the jurisdiction has adopted a housing element that is in substantial compliance with the Housing 95 AB 1886 — 2 —
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Element Law, and (B) the jurisdiction has met or exceeded its share of the regional housing need allocation for the planning period for the income category proposed for the housing development project.
Existing law subjects a housing development project only to the ordinances, policies, and standards adopted and in effect when a preliminary application was submitted, except as specified.
This bill would require a housing element or amendment to be considered in substantial compliance with the Housing Element Law only if the element or amendment was determined to be in substantial compliance when a preliminary application or complete application was submitted, as specified. The bill would provide that this provision is declaratory of existing law.
(3) The California Constitution requires the state to reimburse local agencies and school districts for certain costs mandated by the state.
Statutory provisions establish procedures for making that reimbursement.
This bill would provide that no reimbursement is required by this act for a specified reason.
Vote: majority. Appropriation: no. Fiscal committee: yes.
State-mandated local program: yes.
The people of the State of California do enact as follows:
line 1 SECTION 1. Section 65585 of the Government Code is line 2 amended to read:
line 3 65585. (a) In the preparation of its housing element, each city line 4 and county shall consider the guidelines adopted by the department line 5 pursuant to Section 50459 of the Health and Safety Code. Those line 6 guidelines shall be advisory to each city or county in the line 7 preparation of its housing element.
line 8 (b) (1) At least 90 days prior to adoption of a revision of its line 9 housing element pursuant to subdivision (e) of Section 65588, or line 10 at least 60 days prior to the adoption of a subsequent amendment line 11 to this element, the planning agency shall submit a draft element line 12 revision or draft amendment to the department. The local line 13 government of the planning agency shall make the first draft line 14 revision of a housing element available for public comment for at line 15 least 30 days and, if any comments are received, the local line 16 government shall take at least 10 business days after the 30-day line 17 public comment period to consider and incorporate public line 18 comments into the draft revision prior to submitting it to the 95 — 3 — AB 1886
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line 1 department. For any subsequent draft revision, the local line 2 government shall post the draft revision on its internet website and line 3 shall email a link to the draft revision to all individuals and line 4 organizations that have previously requested notices relating to line 5 the local government’s housing element at least seven days before line 6 submitting the draft revision to the department. line 7 (2) The planning agency staff shall collect and compile the line 8 public comments regarding the housing element received by the line 9 city, county, or city and county and provide these comments to line 10 each member of the legislative body before it adopts the housing line 11 element.
line 12 (3) The department shall review the draft and report its written line 13 findings to the planning agency within 90 days of its receipt of the line 14 first draft submittal for each housing element revision pursuant to line 15 subdivision (e) of Section 65588 or within 60 days of its receipt line 16 of a subsequent draft amendment or an adopted revision or adopted line 17 amendment to an element. The department shall not review the line 18 first draft submitted for each housing element revision pursuant line 19 to subdivision (e) of Section 65588 until the local government has line 20 made the draft available for public comment for at least 30 days line 21 and, if comments were received, has taken at least 10 business line 22 days to consider and incorporate public comments pursuant to line 23 paragraph (1).
line 24 (c) In the preparation of its findings, the department may consult line 25 with any public agency, group, or person. The department shall line 26 receive and consider any written comments from any public line 27 agency, group, or person regarding the draft or adopted element line 28 or amendment under review.
line 29 (d) In its written findings, the department shall determine line 30 whether the draft element or draft amendment substantially line 31 complies with this article.
line 32 (e) Prior to the adoption of its draft element or draft amendment, line 33 the legislative body shall consider the findings made by the line 34 department. If the department’s findings are not available within line 35 the time limits set by this section, the legislative body may act line 36 without them.
line 37 (f) If the department finds that the draft element or draft line 38 amendment does not substantially comply with this article, the line 39 legislative body shall take one of the following actions:
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line 1 (1) Change the draft element or draft amendment to substantially line 2 comply with this article.
line 3 (2) Adopt the draft element or draft amendment without changes. line 4 The legislative body shall include in its resolution of adoption line 5 written findings that explain the reasons the legislative body line 6 believes that the draft element or draft amendment substantially line 7 complies with this article despite the findings of the department. line 8 (g) Promptly following the adoption of its element or line 9 amendment, the planning agency shall submit a copy of the adopted line 10 element or amendment and any findings made pursuant to line 11 paragraph (2) of subdivision (f) to the department. line 12 (h) (1) The department shall, within 60 days, review adopted line 13 housing elements or amendments and any findings pursuant to line 14 paragraph (2) of subdivision (f), make a finding as to whether the line 15 adopted element or amendment is in substantial compliance with line 16 this article, and report its findings to the planning agency. line 17 (2) A housing element or amendment shall be considered to be line 18 in substantial compliance with this article when the local agency line 19 adopts the housing element or amendment for the current planning line 20 period in accordance with this section and either of the following line 21 apply:
line 22 (A) The department finds that the adopted housing element or line 23 amendment is in substantial compliance with this article and the line 24 department’s compliance findings have not been superseded by line 25 subsequent contrary findings by the department or by a decision line 26 of a court of competent jurisdiction.
line 27 (B) A court of competent jurisdiction determines that the line 28 adopted housing element or amendment substantially complies line 29 with this article and the court’s decision has not been overturned line 30 or superseded by a subsequent court decision or by statute. line 31 (i) (1) (A) The department shall review any action or failure line 32 to act by the city, county, or city and county that it determines is line 33 inconsistent with an adopted housing element or Section 65583, line 34 including any failure to implement any program actions included line 35 in the housing element pursuant to Section 65583. The department line 36 shall issue written findings to the city, county, or city and county line 37 as to whether the action or failure to act substantially complies line 38 with this article, and provide a reasonable time no longer than 30 line 39 days for the city, county, or city and county to respond to the 95 — 5 — AB 1886
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line 1 findings before taking any other action authorized by this section, line 2 including the action authorized by subparagraph (B). line 3 (B) If the department finds that the action or failure to act by line 4 the city, county, or city and county does not substantially comply line 5 with this article, and if it has issued findings pursuant to this section line 6 that an amendment to the housing element substantially complies line 7 with this article, the department may revoke its findings until it line 8 determines that the city, county, or city and county has come into line 9 compliance with this article.
line 10 (2) The department may consult with any local government, line 11 public agency, group, or person, and shall receive and consider line 12 any written comments from any public agency, group, or person, line 13 regarding the action or failure to act by the city, county, or city line 14 and county described in paragraph (1), in determining whether the line 15 housing element substantially complies with this article. line 16 (j) The department shall notify the city, county, or city and line 17 county and may notify the office of the Attorney General that the line 18 city, county, or city and county is in violation of state law if the line 19 department finds that the housing element or an amendment to this line 20 element, or any action or failure to act described in subdivision line 21 (i), does not substantially comply with this article or that any local line 22 government has taken an action in violation of the following:
line 23 (1) Housing Accountability Act (Section 65589.5). line 24 (2) Section 65863.
line 25 (3) Chapter 4.3 (commencing with Section 65915). line 26 (4) Section 65008.
line 27 (5) Housing Crisis Act of 2019 (Chapter 654, Statutes of 2019, line 28 Sections 65941.1, 65943, and 66300).
line 29 (6) Section 8899.50.
line 30 (7) Section 65913.4.
line 31 (8) Article 11 (commencing with Section 65650). line 32 (9) Article 12 (commencing with Section 65660). line 33 (10) Section 65913.11.
line 34 (11) Section 65400.
line 35 (12) Section 65863.2.
line 36 (13) Chapter 4.1 (commencing with Section 65912.100). line 37 (14) Section 65905.5.
line 38 (15) Chapter 13 (commencing with Section 66310). line 39 (16) Section 65852.21.
line 40 (17) Section 65852.24.
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line 1 (18) Section 66411.7.
line 2 (19) Section 65913.16.
line 3 (20) Article 2 (commencing with Section 66300.5) of Chapter line 4 12.
line 5 (21) Section 65852.28.
line 6 (22) Section 65913.4.5.
line 7 (23) Section 66499.41.
line 8 (k) Commencing July 1, 2019, prior to the Attorney General line 9 bringing any suit for a violation of the provisions identified in line 10 subdivision (j) related to housing element compliance and seeking line 11 remedies available pursuant to this subdivision, the department line 12 shall offer the jurisdiction the opportunity for two meetings in line 13 person or via telephone to discuss the violation, and shall provide line 14 the jurisdiction written findings regarding the violation. This line 15 paragraph does not affect any action filed prior to the effective line 16 date of this section. The requirements set forth in this subdivision line 17 do not apply to any suits brought for a violation or violations of line 18 paragraphs (1) and (3) to (9), inclusive, of subdivision (j). line 19 (l) In any action or special proceeding brought by the Attorney line 20 General relating to housing element compliance pursuant to a line 21 notice or referral under subdivision (j), the Attorney General may line 22 request, upon a finding of the court that the housing element does line 23 not substantially comply with the requirements of this article line 24 pursuant to this section, that the court issue an order or judgment line 25 directing the jurisdiction to bring its housing element into line 26 substantial compliance with the requirements of this article. The line 27 court shall retain jurisdiction to ensure that its order or judgment line 28 is carried out. If a court determines that the housing element of line 29 the jurisdiction substantially complies with this article, it shall line 30 have the same force and effect, for purposes of eligibility for any line 31 financial assistance that requires a housing element in substantial line 32 compliance and for purposes of any incentives provided under line 33 Section 65589.9, as a determination by the department that the line 34 housing element substantially complies with this article. line 35 (1) If the jurisdiction has not complied with the order or line 36 judgment after 12 months, the court shall conduct a status line 37 conference. Following the status conference, upon a determination line 38 that the jurisdiction failed to comply with the order or judgment line 39 compelling substantial compliance with the requirements of this line 40 article, the court shall impose fines on the jurisdiction, which shall 95 — 7 — AB 1886
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line 1 be deposited into the Building Homes and Jobs Trust Fund. Any line 2 fine levied pursuant to this paragraph shall be in a minimum line 3 amount of ten thousand dollars ($10,000) per month, but shall not line 4 exceed one hundred thousand dollars ($100,000) per month, except line 5 as provided in paragraphs (2) and (3). In the event that the line 6 jurisdiction fails to pay fines imposed by the court in full and on line 7 time, the court may require the Controller to intercept any available line 8 state and local funds and direct such funds to the Building Homes line 9 and Jobs Trust Fund to correct the jurisdiction’s failure to pay. line 10 The intercept of the funds by the Controller for this purpose shall line 11 not violate any provision of the California Constitution. line 12 (2) If the jurisdiction has not complied with the order or line 13 judgment after three months following the imposition of fees line 14 described in paragraph (1), the court shall conduct a status line 15 conference. Following the status conference, if the court finds that line 16 the fees imposed pursuant to paragraph (1) are insufficient to bring line 17 the jurisdiction into compliance with the order or judgment, the line 18 court may multiply the fine determined pursuant to paragraph (1) line 19 by a factor of three. In the event that the jurisdiction fails to pay line 20 fines imposed by the court in full and on time, the court may line 21 require the Controller to intercept any available state and local line 22 funds and direct such funds to the Building Homes and Jobs Trust line 23 Fund to correct the jurisdiction’s failure to pay. The intercept of line 24 the funds by the Controller for this purpose shall not violate any line 25 provision of the California Constitution.
line 26 (3) If the jurisdiction has not complied with the order or line 27 judgment six months following the imposition of fees described line 28 in paragraph (1), the court shall conduct a status conference. Upon line 29 a determination that the jurisdiction failed to comply with the order line 30 or judgment, the court may impose the following:
line 31 (A) If the court finds that the fees imposed pursuant to line 32 paragraphs (1) and (2) are insufficient to bring the jurisdiction into line 33 compliance with the order or judgment, the court may multiply line 34 the fine determined pursuant to paragraph (1) by a factor of six. line 35 In the event that the jurisdiction fails to pay fines imposed by the line 36 court in full and on time, the court may require the Controller to line 37 intercept any available state and local funds and direct such funds line 38 to the Building Homes and Jobs Trust Fund to correct the line 39 jurisdiction’s failure to pay. The intercept of the funds by the 95 AB 1886 — 8 —
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line 1 Controller for this purpose shall not violate any provision of the line 2 California Constitution.
line 3 (B) The court may order remedies available pursuant to Section line 4 564 of the Code of Civil Procedure, under which the agent of the line 5 court may take all governmental actions necessary to bring the line 6 jurisdiction’s housing element into substantial compliance pursuant line 7 to this article in order to remedy identified deficiencies. The court line 8 shall determine whether the housing element of the jurisdiction line 9 substantially complies with this article and, once the court makes line 10 that determination, it shall have the same force and effect, for all line 11 purposes, as the department’s determination that the housing line 12 element substantially complies with this article. An agent appointed line 13 pursuant to this paragraph shall have expertise in planning in line 14 California.
line 15 (4) This subdivision does not limit a court’s discretion to apply line 16 any and all remedies in an action or special proceeding for a line 17 violation of any law identified in subdivision (j). line 18 (m) In determining the application of the remedies available line 19 under subdivision (l), the court shall consider whether there are line 20 any mitigating circumstances delaying the jurisdiction from coming line 21 into compliance with state housing law. The court may consider line 22 whether a city, county, or city and county is making a good faith line 23 effort to come into substantial compliance or is facing substantial line 24 undue hardships.
line 25 (n) Nothing in this section shall limit the authority of the office line 26 of the Attorney General to bring a suit to enforce state law in an line 27 independent capacity. The office of the Attorney General may seek line 28 all remedies available under law including those set forth in this line 29 section.
line 30 (o) Notwithstanding Sections 11040 and 11042, if the Attorney line 31 General declines to represent the department in any action or line 32 special proceeding brought pursuant to a notice or referral under line 33 subdivision (j), the department may appoint or contract with other line 34 counsel for purposes of representing the department in the action line 35 or special proceeding.
line 36 (p) Notwithstanding any other provision of law, the statute of line 37 limitations set forth in subdivision (a) of Section 338 of the Code line 38 of Civil Procedure shall apply to any action or special proceeding line 39 brought by the office of the Attorney General or pursuant to a 95 — 9 — AB 1886
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line 1 notice or referral under subdivision (j), or by the department line 2 pursuant to subdivision (o).
line 3 SEC. 2. Section 65589.5 of the Government Code is amended line 4 to read:
line 5 65589.5. (a) (1) The Legislature finds and declares all of the line 6 following:
line 7 (A) The lack of housing, including emergency shelters, is a line 8 critical problem that threatens the economic, environmental, and line 9 social quality of life in California.
line 10 (B) California housing has become the most expensive in the line 11 nation. The excessive cost of the state’s housing supply is partially line 12 caused by activities and policies of many local governments that line 13 limit the approval of housing, increase the cost of land for housing, line 14 and require that high fees and exactions be paid by producers of line 15 housing.
line 16 (C) Among the consequences of those actions are discrimination line 17 against low-income and minority households, lack of housing to line 18 support employment growth, imbalance in jobs and housing, line 19 reduced mobility, urban sprawl, excessive commuting, and air line 20 quality deterioration.
line 21 (D) Many local governments do not give adequate attention to line 22 the economic, environmental, and social costs of decisions that line 23 result in disapproval of housing development projects, reduction line 24 in density of housing projects, and excessive standards for housing line 25 development projects.
line 26 (2) In enacting the amendments made to this section by the act line 27 adding this paragraph, the Legislature further finds and declares line 28 the following:
line 29 (A) California has a housing supply and affordability crisis of line 30 historic proportions. The consequences of failing to effectively line 31 and aggressively confront this crisis are hurting millions of line 32 Californians, robbing future generations of the chance to call line 33 California home, stifling economic opportunities for workers and line 34 businesses, worsening poverty and homelessness, and undermining line 35 the state’s environmental and climate objectives. line 36 (B) While the causes of this crisis are multiple and complex, line 37 the absence of meaningful and effective policy reforms to line 38 significantly enhance the approval and supply of housing affordable line 39 to Californians of all income levels is a key factor. 95 AB 1886 — 10 —
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line 1 (C) The crisis has grown so acute in California that supply, line 2 demand, and affordability fundamentals are characterized in the line 3 negative: underserved demands, constrained supply, and protracted line 4 unaffordability.
line 5 (D) According to reports and data, California has accumulated line 6 an unmet housing backlog of nearly 2,000,000 units and must line 7 provide for at least 180,000 new units annually to keep pace with line 8 growth through 2025.
line 9 (E) California’s overall home ownership rate is at its lowest line 10 level since the 1940s. The state ranks 49th out of the 50 states in line 11 home ownership rates as well as in the supply of housing per capita. line 12 Only one-half of California’s households are able to afford the line 13 cost of housing in their local regions.
line 14 (F) Lack of supply and rising costs are compounding inequality line 15 and limiting advancement opportunities for many Californians. line 16 (G) The majority of California renters, more than 3,000,000 line 17 households, pay more than 30 percent of their income toward rent line 18 and nearly one-third, more than 1,500,000 households, pay more line 19 than 50 percent of their income toward rent.
line 20 (H) When Californians have access to safe and affordable line 21 housing, they have more money for food and health care; they are line 22 less likely to become homeless and in need of
line 23 government-subsidized services; their children do better in school; line 24 and businesses have an easier time recruiting and retaining line 25 employees.
line 26 (I) An additional consequence of the state’s cumulative housing line 27 shortage is a significant increase in greenhouse gas emissions line 28 caused by the displacement and redirection of populations to states line 29 with greater housing opportunities, particularly working- and line 30 middle-class households. California’s cumulative housing shortfall line 31 therefore has not only national but international environmental line 32 consequences.
line 33 (J) California’s housing picture has reached a crisis of historic line 34 proportions despite the fact that, for decades, the Legislature has line 35 enacted numerous statutes intended to significantly increase the line 36 approval, development, and affordability of housing for all income line 37 levels, including this section.
line 38 (K) The Legislature’s intent in enacting this section in 1982 and line 39 in expanding its provisions since then was to significantly increase line 40 the approval and construction of new housing for all economic 95 — 11 — AB 1886
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line 1 segments of California’s communities by meaningfully and line 2 effectively curbing the capability of local governments to deny, line 3 reduce the density for, or render infeasible housing development line 4 projects and emergency shelters. That intent has not been fulfilled. line 5 (L) It is the policy of the state that this section be interpreted line 6 and implemented in a manner to afford the fullest possible weight line 7 to the interest of, and the approval and provision of, housing. line 8 (3) It is the intent of the Legislature that the conditions that line 9 would have a specific, adverse impact upon the public health and line 10 safety, as described in paragraph (2) of subdivision (d) and line 11 paragraph (1) of subdivision (j), arise infrequently. line 12 (b) It is the policy of the state that a local government not reject line 13 or make infeasible housing development projects, including line 14 emergency shelters, that contribute to meeting the need determined line 15 pursuant to this article without a thorough analysis of the economic, line 16 social, and environmental effects of the action and without line 17 complying with subdivision (d).
line 18 (c) The Legislature also recognizes that premature and line 19 unnecessary development of agricultural lands for urban uses line 20 continues to have adverse effects on the availability of those lands line 21 for food and fiber production and on the economy of the state. line 22 Furthermore, it is the policy of the state that development should line 23 be guided away from prime agricultural lands; therefore, in line 24 implementing this section, local jurisdictions should encourage, line 25 to the maximum extent practicable, in filling existing urban areas. line 26 (d) A local agency shall not disapprove a housing development line 27 project, including farmworker housing as defined in subdivision line 28 (h) of Section 50199.7 of the Health and Safety Code, for very line 29 low, low-, or moderate-income households, or an emergency line 30 shelter, or condition approval in a manner that renders the housing line 31 development project infeasible for development for the use of very line 32 low, low-, or moderate-income households, or an emergency line 33 shelter, including through the use of design review standards, line 34 unless it makes written findings, based upon a preponderance of line 35 the evidence in the record, as to one of the following:
line 36 (1) The jurisdiction has adopted a housing element pursuant to line 37 this article that has been revised in accordance with Section 65588, line 38 is in substantial compliance with this article, and the jurisdiction line 39 has met or exceeded its share of the regional housing need line 40 allocation pursuant to Section 65584 for the planning period for 95 AB 1886 — 12 —
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line 1 the income category proposed for the housing development project, line 2 provided that any disapproval or conditional approval shall not be line 3 based on any of the reasons prohibited by Section 65008. If the line 4 housing development project includes a mix of income categories, line 5 and the jurisdiction has not met or exceeded its share of the regional line 6 housing need for one or more of those categories, then this line 7 paragraph shall not be used to disapprove or conditionally approve line 8 the housing development project. The share of the regional housing line 9 need met by the jurisdiction shall be calculated consistently with line 10 the forms and definitions that may be adopted by the Department line 11 of Housing and Community Development pursuant to Section line 12 65400. In the case of an emergency shelter, the jurisdiction shall line 13 have met or exceeded the need for emergency shelter, as identified line 14 pursuant to paragraph (7) of subdivision (a) of Section 65583. Any line 15 disapproval or conditional approval pursuant to this paragraph line 16 shall be in accordance with applicable law, rule, or standards. line 17 (2) The housing development project or emergency shelter as line 18 proposed would have a specific, adverse impact upon the public line 19 health or safety, and there is no feasible method to satisfactorily line 20 mitigate or avoid the specific, adverse impact without rendering line 21 the development unaffordable to low- and moderate-income line 22 households or rendering the development of the emergency shelter line 23 financially infeasible. As used in this paragraph, a “specific, line 24 adverse impact” means a significant, quantifiable, direct, and line 25 unavoidable impact, based on objective, identified written public line 26 health or safety standards, policies, or conditions as they existed line 27 on the date the application was deemed complete. The following line 28 shall not constitute a specific, adverse impact upon the public line 29 health or safety:
line 30 (A) Inconsistency with the zoning ordinance or general plan line 31 land use designation.
line 32 (B) The eligibility to claim a welfare exemption under line 33 subdivision (g) of Section 214 of the Revenue and Taxation Code. line 34 (3) The denial of the housing development project or imposition line 35 of conditions is required in order to comply with specific state or line 36 federal law, and there is no feasible method to comply without line 37 rendering the development unaffordable to low- and line 38 moderate-income households or rendering the development of the line 39 emergency shelter financially infeasible.
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line 1 (4) The housing development project or emergency shelter is line 2 proposed on land zoned for agriculture or resource preservation line 3 that is surrounded on at least two sides by land being used for line 4 agricultural or resource preservation purposes, or which does not line 5 have adequate water or wastewater facilities to serve the project. line 6 (5) The housing development project or emergency shelter is line 7 inconsistent with both the jurisdiction’s zoning ordinance and line 8 general plan land use designation as specified in any element of line 9 the general plan as it existed on the date the application was line 10 deemed complete, and the jurisdiction has adopted a revised line 11 housing element in accordance with Section 65588 that is in line 12 substantial compliance with this article. For purposes of this line 13 section, a change to the zoning ordinance or general plan land use line 14 designation subsequent to the date the application was deemed line 15 complete shall not constitute a valid basis to disapprove or line 16 condition approval of the housing development project or line 17 emergency shelter.
line 18 (A) This paragraph cannot be utilized to disapprove or line 19 conditionally approve a housing development project if the housing line 20 development project is proposed on a site that is identified as line 21 suitable or available for very low, low-, or moderate-income line 22 households in the jurisdiction’s housing element, and consistent line 23 with the density specified in the housing element, even though it line 24 is inconsistent with both the jurisdiction’s zoning ordinance and line 25 general plan land use designation.
line 26 (B) If the local agency has failed to identify in the inventory of line 27 land in its housing element sites that can be developed for housing line 28 within the planning period and are sufficient to provide for the line 29 jurisdiction’s share of the regional housing need for all income line 30 levels pursuant to Section 65584, then this paragraph shall not be line 31 utilized to disapprove or conditionally approve a housing line 32 development project proposed for a site designated in any element line 33 of the general plan for residential uses or designated in any element line 34 of the general plan for commercial uses if residential uses are line 35 permitted or conditionally permitted within commercial line 36 designations. In any action in court, the burden of proof shall be line 37 on the local agency to show that its housing element does identify line 38 adequate sites with appropriate zoning and development standards line 39 and with services and facilities to accommodate the local agency’s 95 AB 1886 — 14 —
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line 1 share of the regional housing need for the very low, low-, and line 2 moderate-income categories.
line 3 (C) If the local agency has failed to identify a zone or zones line 4 where emergency shelters are allowed as a permitted use without line 5 a conditional use or other discretionary permit, has failed to line 6 demonstrate that the identified zone or zones include sufficient line 7 capacity to accommodate the need for emergency shelter identified line 8 in paragraph (7) of subdivision (a) of Section 65583, or has failed line 9 to demonstrate that the identified zone or zones can accommodate line 10 at least one emergency shelter, as required by paragraph (4) of line 11 subdivision (a) of Section 65583, then this paragraph shall not be line 12 utilized to disapprove or conditionally approve an emergency line 13 shelter proposed for a site designated in any element of the general line 14 plan for industrial, commercial, or multifamily residential uses. In line 15 any action in court, the burden of proof shall be on the local agency line 16 to show that its housing element does satisfy the requirements of line 17 paragraph (4) of subdivision (a) of Section 65583. line 18 (e) Nothing in this section shall be construed to relieve the local line 19 agency from complying with the congestion management program line 20 required by Chapter 2.6 (commencing with Section 65088) of line 21 Division 1 of Title 7 or the California Coastal Act of 1976 line 22 (Division 20 (commencing with Section 30000) of the Public line 23 Resources Code). Neither shall anything in this section be line 24 construed to relieve the local agency from making one or more of line 25 the findings required pursuant to Section 21081 of the Public line 26 Resources Code or otherwise complying with the California line 27 Environmental Quality Act (Division 13 (commencing with Section line 28 21000) of the Public Resources Code).
line 29 (f) (1) Except as provided in subdivision (o), nothing in this line 30 section shall be construed to prohibit a local agency from requiring line 31 the housing development project to comply with objective, line 32 quantifiable, written development standards, conditions, and line 33 policies appropriate to, and consistent with, meeting the line 34 jurisdiction’s share of the regional housing need pursuant to Section line 35 65584. However, the development standards, conditions, and line 36 policies shall be applied to facilitate and accommodate line 37 development at the density permitted on the site and proposed by line 38 the development.
line 39 (2) Except as provided in subdivision (o), nothing in this section line 40 shall be construed to prohibit a local agency from requiring an 95 — 15 — AB 1886
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line 1 emergency shelter project to comply with objective, quantifiable, line 2 written development standards, conditions, and policies that are line 3 consistent with paragraph (4) of subdivision (a) of Section 65583 line 4 and appropriate to, and consistent with, meeting the jurisdiction’s line 5 need for emergency shelter, as identified pursuant to paragraph line 6 (7) of subdivision (a) of Section 65583. However, the development line 7 standards, conditions, and policies shall be applied by the local line 8 agency to facilitate and accommodate the development of the line 9 emergency shelter project.
line 10 (3) Except as provided in subdivision (o), nothing in this section line 11 shall be construed to prohibit a local agency from imposing fees line 12 and other exactions otherwise authorized by law that are essential line 13 to provide necessary public services and facilities to the housing line 14 development project or emergency shelter.
line 15 (4) For purposes of this section, a housing development project line 16 or emergency shelter shall be deemed consistent, compliant, and line 17 in conformity with an applicable plan, program, policy, ordinance, line 18 standard, requirement, or other similar provision if there is line 19 substantial evidence that would allow a reasonable person to line 20 conclude that the housing development project or emergency line 21 shelter is consistent, compliant, or in conformity. line 22 (g) This section shall be applicable to charter cities because the line 23 Legislature finds that the lack of housing, including emergency line 24 shelter, is a critical statewide problem.
line 25 (h) The following definitions apply for the purposes of this line 26 section:
line 27 (1) “Feasible” means capable of being accomplished in a line 28 successful manner within a reasonable period of time, taking into line 29 account economic, environmental, social, and technological factors. line 30 (2) “Housing development project” means a use consisting of line 31 any of the following:
line 32 (A) Residential units only.
line 33 (B) Mixed-use developments consisting of residential and line 34 nonresidential uses with at least two-thirds of the square footage line 35 designated for residential use.
line 36 (C) Transitional housing or supportive housing. line 37 (3) “Housing for very low, low-, or moderate-income line 38 households” means that either (A) at least 20 percent of the total line 39 units shall be sold or rented to lower income households, as defined line 40 in Section 50079.5 of the Health and Safety Code, or (B) 100 95 AB 1886 — 16 —
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line 1 percent of the units shall be sold or rented to persons and families line 2 of moderate income as defined in Section 50093 of the Health and line 3 Safety Code, or persons and families of middle income, as defined line 4 in Section 65008 of this code. Housing units targeted for lower line 5 income households shall be made available at a monthly housing line 6 cost that does not exceed 30 percent of 60 percent of area median line 7 income with adjustments for household size made in accordance line 8 with the adjustment factors on which the lower income eligibility line 9 limits are based. Housing units targeted for persons and families line 10 of moderate income shall be made available at a monthly housing line 11 cost that does not exceed 30 percent of 100 percent of area median line 12 income with adjustments for household size made in accordance line 13 with the adjustment factors on which the moderate-income line 14 eligibility limits are based.
line 15 (4) “Area median income” means area median income as line 16 periodically established by the Department of Housing and line 17 Community Development pursuant to Section 50093 of the Health line 18 and Safety Code. The developer shall provide sufficient legal line 19 commitments to ensure continued availability of units for very low line 20 or low-income households in accordance with the provisions of line 21 this subdivision for 30 years.
line 22 (5) Notwithstanding any other law, until January 1, 2030, line 23 “deemed complete” means that the applicant has submitted a line 24 preliminary application pursuant to Section 65941.1 or, if the line 25 applicant has not submitted a preliminary application, has line 26 submitted a complete application pursuant to Section 65943. line 27 (6) “Disapprove the housing development project” includes any line 28 instance in which a local agency does any of the following:
line 29 (A) Votes on a proposed housing development project line 30 application and the application is disapproved, including any line 31 required land use approvals or entitlements necessary for the line 32 issuance of a building permit.
line 33 (B) Fails to comply with the time periods specified in line 34 subdivision (a) of Section 65950. An extension of time pursuant line 35 to Article 5 (commencing with Section 65950) shall be deemed to line 36 be an extension of time pursuant to this paragraph. line 37 (C) Fails to meet the time limits specified in Section 65913.3. line 38 (D) (i) Fails to make a determination of whether the project is line 39 exempt from the California Environmental Quality Act (Division line 40 13 (commencing with Section 21000) of the Public Resources 95 — 17 — AB 1886
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line 1 Code), or commits an abuse of discretion, as defined in this line 2 subparagraph, if all of the following conditions are satisfied:
line 3 (I) There is substantial evidence in the record before the local line 4 agency that the housing development project is not located in either line 5 of the following:
line 6 (ia) On a site specified in subparagraphs (A) to (C), inclusive, line 7 or subparagraphs (E) to (K), inclusive, of paragraph (6) of line 8 subdivision (a) of Section 65913.4.
line 9 (ib) Within a very high fire hazard severity zone, as determined line 10 by the Department of Forestry and Fire Protection pursuant to line 11 Section 51178, or within a high or very high fire hazard severity line 12 zone as indicated on maps adopted by the Department of Forestry line 13 and Fire Protection pursuant to Section 4202 of the Public line 14 Resources Code.
line 15 (II) The housing development project is located on a legal parcel line 16 or parcels within an urbanized area and meets one or more of the line 17 following criteria:
line 18 (ia) The housing development project is located within one-half line 19 mile walking distance to either a high-quality transit corridor or a line 20 major transit stop.
line 21 (ib) The housing development project is located in a very low line 22 vehicle travel area.
line 23 (ic) The housing development project is proximal to six or more line 24 amenities pursuant to subclause (IV) of clause (ii) as of the date line 25 of submission of the application for the project. line 26 (id) Parcels that are developed with urban uses adjoin at least line 27 75 percent of the perimeter of the project site or at least three sides line 28 of a four-sided project site. For purposes of this clause, parcels line 29 that are only separated by a street or highway shall be considered line 30 to be adjoined.
line 31 (III) The density of the housing development project meets or line 32 exceeds 15 dwelling units per acre.
line 33 (IV) Both of the following criteria are met:
line 34 (ia) There is substantial evidence in the record before the local line 35 agency that the housing development project is eligible for an line 36 exemption sought by the applicant.
line 37 (ib) If the exemption sought by the applicant is subject to an line 38 exception under the Guidelines for Implementation of the line 39 California Environmental Quality Act (Chapter 3 (commencing line 40 with Section 15000) of Division 6 of Title 14 of the California 95 AB 1886 — 18 —
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line 1 Code of Regulations), there is substantial evidence in the record line 2 before the local agency that the application of that categorical line 3 exemption is not barred by one of the exceptions set forth in line 4 Section 15300.2 of those guidelines.
line 5 (V) (ia) The applicant has given timely written notice to the line 6 local agency of the action or inaction that the applicant believes line 7 constitutes a failure to make a determination or an abuse of line 8 discretion, as defined in this subparagraph, and the local agency line 9 did not make a lawful determination within 90 days of the line 10 applicant’s written notice. The applicant’s written notice shall line 11 contain all of the following:
line 12 (Ia) The information specified in paragraphs (1), (2), (5), and line 13 (6) of subdivision (a) of Section 15062 of Title 14 of the California line 14 Code of Regulations.
line 15 (Ib) A citation to the section of Title 14 of the California Code line 16 of Regulations or the statute under which the applicant asserts that line 17 the project is exempt.
line 18 (Ic) A brief statement of reasons supporting the assertion that line 19 the project is exempt.
line 20 (Id) A copy of the excerpts from the record constituting line 21 substantial evidence that the criteria of subclauses (I) to (IV), line 22 inclusive, are satisfied.
line 23 (ib) Within five working days of receiving the applicant’s line 24 written notice required by sub-subclause (ia), the local agency line 25 shall file the notice with the county clerk of each county in which line 26 the project will be located. The county clerk shall post the notice line 27 and make it available for public inspection in the manner set forth line 28 in subdivision (c) of Section 21152 of the Public Resources Code. line 29 Compliance with this sub-subclause is not a condition that must line 30 be satisfied in order to find that the local agency has disapproved line 31 the housing development project under this subparagraph. line 32 (ic) The local agency may, by providing a written response to line 33 the applicant within 90 additional days of the applicant’s written line 34 notice, extend the time period to make a lawful determination by line 35 no more than 90 days if the extension is necessary to determine if line 36 there is substantial evidence in the record that the housing line 37 development project is eligible for the exemption sought by the line 38 applicant.
line 39 (id) If the local agency has given the applicant written notice line 40 of the local agency’s determination that the project is not exempt, 95 — 19 — AB 1886
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line 1 the applicant’s notice shall be deemed timely if and only if it is line 2 delivered to the local agency within 35 days of the date that the line 3 local agency gave the applicant notice of the local agency’s line 4 determination.
line 5 (ie) If the local agency has not given the applicant the written line 6 notice described in sub-subclause (id), the applicant’s notice shall line 7 be deemed timely if given after 60 days from the date on which line 8 the project application has been received and accepted as complete line 9 by the lead agency, or 60 days from the date on which the project line 10 application has been determined or deemed to be complete within line 11 the meaning of Section 65943, whichever is earlier. line 12 (ii) For purposes of this subparagraph, the following definitions line 13 apply:
line 14 (I) “Abuse of discretion” means that the conditions set forth in line 15 subclauses (I) to (IV), inclusive, of clause (i) are satisfied, but the line 16 local agency does not determine that the project is exempt from line 17 the California Environmental Quality Act (Division 13 line 18 (commencing with Section 21000) of the Public Resources Code). line 19 This subclause sets forth the exclusive definition of “abuse of line 20 discretion” for purposes of this subparagraph.
line 21 (II) “High-quality transit corridor” has the same meaning defined line 22 in subdivision (b) of Section 21155 of the Public Resources Code. line 23 (III) “Major transit stop” has the same meaning as defined in line 24 Section 21064.3 of the Public Resources Code.
line 25 (IV) “Proximal” to an amenity means either of the following:
line 26 (ia) Within one-half mile of either of the following amenities:
line 27 (Ia) A bus station.
line 28 (Ib) A ferry terminal.
line 29 (ib) Within one mile, or for a parcel in a rural area, as defined line 30 in Section 50199.21 of the Health and Safety Code, within two line 31 miles, of any of the following amenities:
line 32 (Ia) A supermarket or grocery store.
line 33 (Ib) A public park.
line 34 (Ic) A community center.
line 35 (Id) A pharmacy or drugstore.
line 36 (Ie) A medical clinic or hospital.
line 37 (If) A public library.
line 38 (Ig) A school that maintains a kindergarten or any of grades 1 line 39 to 12, inclusive.
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line 1 (V) “Urbanized area” has the same meaning as defined in line 2 Section 21071 of the Public Resources Code.
line 3 (VI) (ia) “Very low vehicle travel area” means an urbanized line 4 area, as designated by the United States Census Bureau, where the line 5 existing residential development generates vehicle miles traveled line 6 per capita that is below 85 percent of either regional vehicle miles line 7 traveled per capita or city vehicle miles traveled per capita. line 8 (ib) For purposes of sub-subclause (ia), “area” may include a line 9 travel analysis zone, hexagon, or grid.
line 10 (ic) For the purposes of determining “regional vehicle miles line 11 traveled per capita” pursuant to sub-subclause (ia), a “region” is line 12 the entirety of incorporated and unincorporated areas governed by line 13 a multicounty or single-county metropolitan planning organization, line 14 or the entirety of the incorporated and unincorporated areas of an line 15 individual county that is not part of a metropolitan planning line 16 organization.
line 17 (iii) This subparagraph shall not be construed to require a local line 18 agency to determine that a project is exempt if, on the record before line 19 the local agency, the project is not eligible for exemption. line 20 (iv) This subparagraph shall become inoperative on January 1, line 21 2031.
line 22 (E) Fails to adopt a negative declaration or addendum for the line 23 project, to certify an environmental impact report for the project, line 24 or to approve another comparable environmental document, such line 25 as a sustainable communities environmental assessment pursuant line 26 to Section 21155.2 of the Public Resources Code, as required line 27 pursuant to the California Environmental Quality Act (Division line 28 13 (commencing with Section 21000) of the Public Resources line 29 Code), if all of the following conditions are satisfied:
line 30 (i) There is substantial evidence in the record before the local line 31 agency that the site of the housing development project is not line 32 located on either of the following:
line 33 (I) On a site specified in subparagraphs (A) to (C), inclusive, line 34 or subparagraphs (E) to (K), inclusive, of paragraph (6) of line 35 subdivision (a) of Section 65913.4.
line 36 (II) Within a very high fire hazard severity zone, as determined line 37 by the Department of Forestry and Fire Protection pursuant to line 38 Section 51178, or within a high or very high fire hazard severity line 39 zone as indicated on maps adopted by the Department of Forestry 95 — 21 — AB 1886
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line 1 and Fire Protection pursuant to Section 4202 of the Public line 2 Resources Code.
line 3 (ii) The housing development project is located on a legal parcel line 4 or parcels within an urbanized area and meets one or more of the line 5 following criteria:
line 6 (I) The housing development project is located within one-half line 7 mile walking distance to either a high-quality transit corridor or a line 8 major transit stop.
line 9 (II) The housing development project is located in a very low line 10 vehicle travel area.
line 11 (III) The housing development project is proximal to six or more line 12 amenities pursuant to subclause (IV) of clause (vii) as of the date line 13 of submission of the application for the project. line 14 (IV) Parcels that are developed with urban uses adjoin at least line 15 75 percent of the perimeter of the project site or at least three sides line 16 of a four-sided project site. For purposes of this clause, parcels line 17 that are only separated by a street or highway shall be considered line 18 to be adjoined.
line 19 (iii) The density of the housing development project meets or line 20 exceeds 15 dwelling units per acre.
line 21 (iv) There has been prepared a negative declaration, addendum, line 22 environmental impact report, or comparable environmental review line 23 document that, if duly adopted, approved, or certified by the local line 24 agency, would satisfy the requirements of the California line 25 Environmental Quality Act (Division 13 (commencing with Section line 26 21000) of the Public Resources Code) with respect to the project. line 27 (v) The local agency or a body or official to which the agency line 28 has delegated authority to adopt, approve, or certify the negative line 29 declaration addendum, environmental impact report, or comparable line 30 environmental review document has held a meeting at which line 31 adoption, approval, or certification of the environmental review line 32 document was on the agenda and the environmental review line 33 document could have been adopted, approved, or certified, as line 34 applicable, but the agency did either of the following:
line 35 (I) Committed an abuse of discretion, as defined in this line 36 subparagraph.
line 37 (II) Failed to decide whether to require further study or to adopt, line 38 approve, or certify the environmental document. line 39 (vi) (I) The applicant has given timely written notice to the line 40 local agency of the action or inaction that the applicant believes 95 AB 1886 — 22 —
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line 1 constitutes a failure to decide or an abuse of discretion, and the line 2 local agency did not make a lawful determination about whether line 3 to adopt, approve, or certify the environmental review document line 4 within 90 days of the applicant’s written notice. The applicant’s line 5 written notice shall include a copy of those excerpts from the record line 6 that constitute substantial evidence that the criteria of clauses (i) line 7 to (iv), inclusive, are satisfied.
line 8 (II) If the local agency has voted to require further study, rather line 9 than adopting, approving, or certifying the negative declaration, line 10 addendum, environmental impact report, or comparable line 11 environmental review document in the form it was presented for line 12 the agency’s consideration, the applicant’s notice shall be deemed line 13 timely if and only if it is delivered to the local agency within 35 line 14 days of the date that the local agency gave written notice of its line 15 decision to the applicant.
line 16 (III) If the local agency has not voted to require further study, line 17 rather than adopting, approving, or certifying the negative line 18 declaration, addendum, environmental impact report, or comparable line 19 environmental review document in the form it was presented for line 20 the agency’s consideration, the applicant’s notice shall be deemed line 21 timely if given after the time period specified in Section 21151.5 line 22 of the Public Resources Code or another applicable provision of line 23 that code for completing the addendum, negative declaration, line 24 environmental impact report, or other comparable environmental line 25 review document, as applicable, has passed. If the Public Resources line 26 Code does not specifically describe the deadline to complete the line 27 applicable environmental document, a 180-day deadline is the line 28 applicable time period.
line 29 (vii) For purposes of this subparagraph, the following definitions line 30 apply:
line 31 (I) (ia) “Abuse of discretion” means either of the following:
line 32 (Ia) If the local agency fails to adopt a negative declaration, line 33 “abuse of discretion” means that the agency, in bad faith or without line 34 substantial evidence in the record to support a fair argument that line 35 further environmental study is necessary to identify or analyze line 36 potentially significant impacts on the physical environment, line 37 decided to require further environmental study rather than adopting line 38 the negative declaration.
line 39 (Ib) If the local agency fails to adopt an addendum for the line 40 project, certify an environmental impact report for the project, or 95 — 23 — AB 1886
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line 1 approve another comparable environmental document, “abuse of line 2 discretion” means that the agency, in bad faith or without line 3 substantial evidence in the record that further environmental study line 4 is legally required to identify or analyze potentially significant line 5 impacts on the physical environment, decided to require further line 6 environmental study rather than adopting, approving, or certifying line 7 the environmental review document.
line 8 (ib) This subclause sets forth the exclusive definition of “abuse line 9 of discretion” for purposes of this subparagraph. line 10 (II) “High-quality transit corridor” has the same meaning defined line 11 in subdivision (b) of Section 21155 of the Public Resources Code. line 12 (III) “Major transit stop” has the same meaning as defined in line 13 Section 21064.3 of the Public Resources Code.
line 14 (IV) “Proximal” to an amenity means either of the following:
line 15 (ia) Within one-half mile of either of the following amenities:
line 16 (Ia) A bus station.
line 17 (Ib) A ferry terminal.
line 18 (ib) Within one mile, or for a parcel in a rural area, as defined line 19 in Section 50199.21 of the Health and Safety Code, within two line 20 miles, of any of the following amenities:
line 21 (Ia) A supermarket or grocery store.
line 22 (Ib) A public park.
line 23 (Ic) A community center.
line 24 (Id) A pharmacy or drugstore.
line 25 (Ie) A medical clinic or hospital.
line 26 (If) A public library.
line 27 (Ig) A school that maintains a kindergarten or any of grades 1 line 28 to 12, inclusive.
line 29 (V) “Urbanized area” has the same meaning as defined in line 30 Section 21071 of the Public Resources Code.
line 31 (VI) (ia) “Very low vehicle travel area” means an urbanized line 32 area, as designated by the United States Census Bureau, where the line 33 existing residential development generates vehicle miles traveled line 34 per capita that is below 85 percent of either regional vehicle miles line 35 traveled per capita or city vehicle miles traveled per capita. line 36 (ib) For purposes of sub-subclause (ia), “area” may include a line 37 travel analysis zone, hexagon, or grid.
line 38 (ic) For the purposes of determining “regional vehicle miles line 39 traveled per capita” pursuant to sub-subclause (ia), a “region” is line 40 the entirety of incorporated and unincorporated areas governed by 95 AB 1886 — 24 —
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line 1 a multicounty or single-county metropolitan planning organization, line 2 or the entirety of the incorporated and unincorporated areas of an line 3 individual county that is not part of a metropolitan planning line 4 organization.
line 5 (viii) This subparagraph shall become inoperative on January line 6 1, 2031.
line 7 (7) (A) For purposes of this section, “lawful determination” line 8 means any final decision about whether to approve or disapprove line 9 a statutory or categorical exemption or a negative declaration, line 10 addendum, environmental impact report, or comparable line 11 environmental review document under the California line 12 Environmental Quality Act (Division 13 (commencing with Section line 13 21000) of the Public Resources Code) that is not an abuse of line 14 discretion, as defined in clause (ii) of subparagraph (D) of line 15 paragraph (6) or clause (vii) of subparagraph (E) of paragraph (6). line 16 (B) This paragraph shall become inoperative on January 1, 2031. line 17 (8) “Lower density” includes any conditions that have the same line 18 effect or impact on the ability of the project to provide housing. line 19 (9) Until January 1, 2030, “objective” means involving no line 20 personal or subjective judgment by a public official and being line 21 uniformly verifiable by reference to an external and uniform line 22 benchmark or criterion available and knowable by both the line 23 development applicant or proponent and the public official. line 24 (10) Notwithstanding any other law, until January 1, 2030, line 25 “determined to be complete” means that the applicant has submitted line 26 a complete application pursuant to Section 65943. line 27 (i) If any city, county, or city and county denies approval or line 28 imposes conditions, including design changes, lower density, or line 29 a reduction of the percentage of a lot that may be occupied by a line 30 building or structure under the applicable planning and zoning in line 31 force at the time the housing development project’s application is line 32 complete, that have a substantial adverse effect on the viability or line 33 affordability of a housing development for very low, low-, or line 34 moderate-income households, and the denial of the development line 35 or the imposition of conditions on the development is the subject line 36 of a court action which challenges the denial or the imposition of line 37 conditions, then the burden of proof shall be on the local legislative line 38 body to show that its decision is consistent with the findings as line 39 described in subdivision (d), and that the findings are supported 95 — 25 — AB 1886
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line 1 by a preponderance of the evidence in the record, and with the line 2 requirements of subdivision (o).
line 3 (j) (1) When a proposed housing development project complies line 4 with applicable, objective general plan, zoning, and subdivision line 5 standards and criteria, including design review standards, in effect line 6 at the time that the application was deemed complete, but the local line 7 agency proposes to disapprove the project or to impose a condition line 8 that the project be developed at a lower density, the local agency line 9 shall base its decision regarding the proposed housing development line 10 project upon written findings supported by a preponderance of the line 11 evidence on the record that both of the following conditions exist:
line 12 (A) The housing development project would have a specific, line 13 adverse impact upon the public health or safety unless the project line 14 is disapproved or approved upon the condition that the project be line 15 developed at a lower density. As used in this paragraph, a “specific, line 16 adverse impact” means a significant, quantifiable, direct, and line 17 unavoidable impact, based on objective, identified written public line 18 health or safety standards, policies, or conditions as they existed line 19 on the date the application was deemed complete. line 20 (B) There is no feasible method to satisfactorily mitigate or line 21 avoid the adverse impact identified pursuant to paragraph (1), other line 22 than the disapproval of the housing development project or the line 23 approval of the project upon the condition that it be developed at line 24 a lower density.
line 25 (2) (A) If the local agency considers a proposed housing line 26 development project to be inconsistent, not in compliance, or not line 27 in conformity with an applicable plan, program, policy, ordinance, line 28 standard, requirement, or other similar provision as specified in line 29 this subdivision, it shall provide the applicant with written line 30 documentation identifying the provision or provisions, and an line 31 explanation of the reason or reasons it considers the housing line 32 development to be inconsistent, not in compliance, or not in line 33 conformity as follows:
line 34 (i) Within 30 days of the date that the application for the housing line 35 development project is determined to be complete, if the housing line 36 development project contains 150 or fewer housing units. line 37 (ii) Within 60 days of the date that the application for the line 38 housing development project is determined to be complete, if the line 39 housing development project contains more than 150 units. 95 AB 1886 — 26 —
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line 1 (B) If the local agency fails to provide the required line 2 documentation pursuant to subparagraph (A), the housing line 3 development project shall be deemed consistent, compliant, and line 4 in conformity with the applicable plan, program, policy, ordinance, line 5 standard, requirement, or other similar provision. line 6 (3) For purposes of this section, the receipt of a density bonus, line 7 incentive, concession, waiver, or reduction of development line 8 standards pursuant to Section 65915 shall not constitute a valid line 9 basis on which to find a proposed housing development project is line 10 inconsistent, not in compliance, or not in conformity, with an line 11 applicable plan, program, policy, ordinance, standard, requirement, line 12 or other similar provision specified in this subdivision. line 13 (4) For purposes of this section, a proposed housing development line 14 project is not inconsistent with the applicable zoning standards line 15 and criteria, and shall not require a rezoning, if the housing line 16 development project is consistent with the objective general plan line 17 standards and criteria but the zoning for the project site is line 18 inconsistent with the general plan. If the local agency has complied line 19 with paragraph (2), the local agency may require the proposed line 20 housing development project to comply with the objective line 21 standards and criteria of the zoning which is consistent with the line 22 general plan, however, the standards and criteria shall be applied line 23 to facilitate and accommodate development at the density allowed line 24 on the site by the general plan and proposed by the proposed line 25 housing development project.
line 26 (k) (1) (A) (i) The applicant, a person who would be eligible line 27 to apply for residency in the housing development project or line 28 emergency shelter, or a housing organization may bring an action line 29 to enforce this section. If, in any action brought to enforce this line 30 section, a court finds that any of the following are met, the court line 31 shall issue an order pursuant to clause (ii):
line 32 (I) The local agency, in violation of subdivision (d), disapproved line 33 a housing development project or conditioned its approval in a line 34 manner rendering it infeasible for the development of an emergency line 35 shelter, or housing for very low, low-, or moderate-income line 36 households, including farmworker housing, without making the line 37 findings required by this section or without making findings line 38 supported by a preponderance of the evidence.
line 39 (II) The local agency, in violation of subdivision (j), disapproved line 40 a housing development project complying with applicable, 95 — 27 — AB 1886
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line 1 objective general plan and zoning standards and criteria, or imposed line 2 a condition that the project be developed at a lower density, without line 3 making the findings required by this section or without making line 4 findings supported by a preponderance of the evidence. line 5 (III) (ia) Subject to sub-subclause (ib), the local agency, in line 6 violation of subdivision (o), required or attempted to require a line 7 housing development project to comply with an ordinance, policy, line 8 or standard not adopted and in effect when a preliminary line 9 application was submitted.
line 10 (ib) This subclause shall become inoperative on January 1, 2030. line 11 (ii) If the court finds that one of the conditions in clause (i) is line 12 met, the court shall issue an order or judgment compelling line 13 compliance with this section within 60 days, including, but not line 14 limited to, an order that the local agency take action on the housing line 15 development project or emergency shelter. The court may issue line 16 an order or judgment directing the local agency to approve the line 17 housing development project or emergency shelter if the court line 18 finds that the local agency acted in bad faith when it disapproved line 19 or conditionally approved the housing development or emergency line 20 shelter in violation of this section. The court shall retain jurisdiction line 21 to ensure that its order or judgment is carried out and shall award line 22 reasonable attorney’s fees and costs of suit to the plaintiff or line 23 petitioner, provided, however, that the court shall not award line 24 attorney’s fees in either of the following instances:
line 25 (I) The court finds, under extraordinary circumstances, that line 26 awarding fees would not further the purposes of this section. line 27 (II) (ia) In a case concerning a disapproval within the meaning line 28 of subparagraph (D) or (E) of paragraph (6) of subdivision (h), the line 29 court finds that the local agency acted in good faith and had line 30 reasonable cause to disapprove the housing development project line 31 due to the existence of a controlling question of law about the line 32 application of the California Environmental Quality Act (Division line 33 13 (commencing with Section 21000) of the Public Resources line 34 Code) or implementing guidelines as to which there was a line 35 substantial ground for difference of opinion at the time of the line 36 disapproval.
line 37 (ib) This subclause shall become inoperative on January 1, 2031. line 38 (B) Upon a determination that the local agency has failed to line 39 comply with the order or judgment compelling compliance with line 40 this section within 60 days issued pursuant to subparagraph (A), 95 AB 1886 — 28 —
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line 1 the court shall impose fines on a local agency that has violated this line 2 section and require the local agency to deposit any fine levied line 3 pursuant to this subdivision into a local housing trust fund. The line 4 local agency may elect to instead deposit the fine into the Building line 5 Homes and Jobs Trust Fund. The fine shall be in a minimum line 6 amount of ten thousand dollars ($10,000) per housing unit in the line 7 housing development project on the date the application was line 8 deemed complete pursuant to Section 65943. In determining the line 9 amount of fine to impose, the court shall consider the local line 10 agency’s progress in attaining its target allocation of the regional line 11 housing need pursuant to Section 65584 and any prior violations line 12 of this section. Fines shall not be paid out of funds already line 13 dedicated to affordable housing, including, but not limited to, Low line 14 and Moderate Income Housing Asset Funds, funds dedicated to line 15 housing for very low, low-, and moderate-income households, and line 16 federal HOME Investment Partnerships Program and Community line 17 Development Block Grant Program funds. The local agency shall line 18 commit and expend the money in the local housing trust fund line 19 within five years for the sole purpose of financing newly line 20 constructed housing units affordable to extremely low, very low, line 21 or low-income households. After five years, if the funds have not line 22 been expended, the money shall revert to the state and be deposited line 23 in the Building Homes and Jobs Trust Fund for the sole purpose line 24 of financing newly constructed housing units affordable to line 25 extremely low, very low, or low-income households. line 26 (C) If the court determines that its order or judgment has not line 27 been carried out within 60 days, the court may issue further orders line 28 as provided by law to ensure that the purposes and policies of this line 29 section are fulfilled, including, but not limited to, an order to vacate line 30 the decision of the local agency and to approve the housing line 31 development project, in which case the application for the housing line 32 development project, as proposed by the applicant at the time the line 33 local agency took the initial action determined to be in violation line 34 of this section, along with any standard conditions determined by line 35 the court to be generally imposed by the local agency on similar line 36 projects, shall be deemed to be approved unless the applicant line 37 consents to a different decision or action by the local agency. line 38 (2) For purposes of this subdivision, “housing organization” line 39 means a trade or industry group whose local members are primarily line 40 engaged in the construction or management of housing units or a 95 — 29 — AB 1886
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line 1 nonprofit organization whose mission includes providing or line 2 advocating for increased access to housing for low-income line 3 households and have filed written or oral comments with the local line 4 agency prior to action on the housing development project. A line 5 housing organization may only file an action pursuant to this line 6 section to challenge the disapproval of a housing development by line 7 a local agency. A housing organization shall be entitled to line 8 reasonable attorney’s fees and costs if it is the prevailing party in line 9 an action to enforce this section.
line 10 (l) If the court finds that the local agency (1) acted in bad faith line 11 when it disapproved or conditionally approved the housing line 12 development or emergency shelter in violation of this section and line 13 (2) failed to carry out the court’s order or judgment within 60 days line 14 as described in subdivision (k), the court, in addition to any other line 15 remedies provided by this section, shall multiply the fine line 16 determined pursuant to subparagraph (B) of paragraph (1) of line 17 subdivision (k) by a factor of five. For purposes of this section, line 18 “bad faith” includes, but is not limited to, an action that is frivolous line 19 or otherwise entirely without merit.
line 20 (m) (1) Any action brought to enforce the provisions of this line 21 section shall be brought pursuant to Section 1094.5 of the Code line 22 of Civil Procedure, and the local agency shall prepare and certify line 23 the record of proceedings in accordance with subdivision (c) of line 24 Section 1094.6 of the Code of Civil Procedure no later than 30 line 25 days after the petition is served, provided that the cost of line 26 preparation of the record shall be borne by the local agency, unless line 27 the petitioner elects to prepare the record as provided in subdivision line 28 (n) of this section. A petition to enforce the provisions of this line 29 section shall be filed and served no later than 90 days from the line 30 later of (1) the effective date of a decision of the local agency line 31 imposing conditions on, disapproving, or any other final action on line 32 a housing development project or (2) the expiration of the time line 33 periods specified in subparagraph (B) of paragraph (5) of line 34 subdivision (h). Upon entry of the trial court’s order, a party may, line 35 in order to obtain appellate review of the order, file a petition line 36 within 20 days after service upon it of a written notice of the entry line 37 of the order, or within such further time not exceeding an additional line 38 20 days as the trial court may for good cause allow, or may appeal line 39 the judgment or order of the trial court under Section 904.1 of the line 40 Code of Civil Procedure. If the local agency appeals the judgment 95 AB 1886 — 30 —
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line 1 of the trial court, the local agency shall post a bond, in an amount line 2 to be determined by the court, to the benefit of the plaintiff if the line 3 plaintiff is the project applicant.
line 4 (2) (A) A disapproval within the meaning of subparagraph (D) line 5 of paragraph (6) of subdivision (h) shall be final for purposes of line 6 this subdivision, if the local agency did not make a lawful line 7 determination within the time period set forth in subclause (V) of line 8 clause (i) of that subparagraph after the applicant’s timely written line 9 notice.
line 10 (B) This paragraph shall become inoperative on January 1, 2031. line 11 (3) (A) A disapproval within the meaning of subparagraph (E) line 12 of paragraph (6) of subdivision (h) shall be final for purposes of line 13 this subdivision, if the local agency did not make a lawful line 14 determination within 90 days of the applicant’s timely written line 15 notice.
line 16 (B) This paragraph shall become inoperative on January 1, 2031. line 17 (n) In any action, the record of the proceedings before the local line 18 agency shall be filed as expeditiously as possible and, line 19 notwithstanding Section 1094.6 of the Code of Civil Procedure or line 20 subdivision (m) of this section, all or part of the record may be line 21 prepared (1) by the petitioner with the petition or petitioner’s points line 22 and authorities, (2) by the respondent with respondent’s points and line 23 authorities, (3) after payment of costs by the petitioner, or (4) as line 24 otherwise directed by the court. If the expense of preparing the line 25 record has been borne by the petitioner and the petitioner is the line 26 prevailing party, the expense shall be taxable as costs. line 27 (o) (1) (A) Subject to paragraphs (2), (6), and (7), and line 28 subdivision (d) of Section 65941.1, a housing development project line 29 shall be subject only to the ordinances, policies, and standards line 30 adopted and in effect when a preliminary application including all line 31 of the information required by subdivision (a) of Section 65941.1 line 32 was submitted.
line 33 (B) For purposes of a local agency’s approval, conditional line 34 approval, or disapproval of a housing development project pursuant line 35 to subdivision (d), a housing element or amendment shall be line 36 considered in substantial compliance with this article only if the line 37 element or amendment was in substantial compliance, as line 38 determined by the department or a court of competent jurisdiction, line 39 when a preliminary application, including all of the information line 40 required by subdivision (a) of Section 65941.1, was submitted or, 95 — 31 — AB 1886
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line 1 if a preliminary application was not submitted, when a complete line 2 application pursuant to Section 65943 was submitted. This line 3 subparagraph does not constitute a change in, but is declaratory line 4 of, existing law.
line 5 (2) Paragraph (1) shall not prohibit a housing development line 6 project from being subject to ordinances, policies, and standards line 7 adopted after the preliminary application was submitted pursuant line 8 to Section 65941.1 in the following circumstances:
line 9 (A) In the case of a fee, charge, or other monetary exaction, to line 10 an increase resulting from an automatic annual adjustment based line 11 on an independently published cost index that is referenced in the line 12 ordinance or resolution establishing the fee or other monetary line 13 exaction.
line 14 (B) A preponderance of the evidence in the record establishes line 15 that subjecting the housing development project to an ordinance, line 16 policy, or standard beyond those in effect when a preliminary line 17 application was submitted is necessary to mitigate or avoid a line 18 specific, adverse impact upon the public health or safety, as defined line 19 in subparagraph (A) of paragraph (1) of subdivision (j), and there line 20 is no feasible alternative method to satisfactorily mitigate or avoid line 21 the adverse impact.
line 22 (C) Subjecting the housing development project to an ordinance, line 23 policy, standard, or any other measure, beyond those in effect when line 24 a preliminary application was submitted is necessary to avoid or line 25 substantially lessen an impact of the project under the California line 26 Environmental Quality Act (Division 13 (commencing with Section line 27 21000) of the Public Resources Code).
line 28 (D) The housing development project has not commenced line 29 construction within two and one-half years, or three and one-half line 30 years for an affordable housing project, following the date that the line 31 project received final approval. For purposes of this subparagraph:
line 32 (i) “Affordable housing project” means a housing development line 33 that satisfies both of the following requirements:
line 34 (I) Units within the development are subject to a recorded line 35 affordability restriction for at least 55 years for rental housing and line 36 45 years for owner-occupied housing, or the first purchaser of each line 37 unit participates in an equity sharing agreement as described in line 38 subparagraph (C) of paragraph (2) of subdivision (c) of Section line 39 65915.
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line 1 (II) All of the units within the development, excluding managers’ line 2 units, are dedicated to lower income households, as defined by line 3 Section 50079.5 of the Health and Safety Code.
line 4 (ii) “Final approval” means that the housing development project line 5 has received all necessary approvals to be eligible to apply for, line 6 and obtain, a building permit or permits and either of the following line 7 is met:
line 8 (I) The expiration of all applicable appeal periods, petition line 9 periods, reconsideration periods, or statute of limitations for line 10 challenging that final approval without an appeal, petition, request line 11 for reconsideration, or legal challenge having been filed. line 12 (II) If a challenge is filed, that challenge is fully resolved or line 13 settled in favor of the housing development project. line 14 (E) The housing development project is revised following line 15 submittal of a preliminary application pursuant to Section 65941.1 line 16 such that the number of residential units or square footage of line 17 construction changes by 20 percent or more, exclusive of any line 18 increase resulting from the receipt of a density bonus, incentive, line 19 concession, waiver, or similar provision, including any other locally line 20 authorized program that offers additional density or other line 21 development bonuses when affordable housing is provided. For line 22 purposes of this subdivision, “square footage of construction” line 23 means the building area, as defined by the California Building line 24 Standards Code (Title 24 of the California Code of Regulations). line 25 (3) This subdivision does not prevent a local agency from line 26 subjecting the additional units or square footage of construction line 27 that result from project revisions occurring after a preliminary line 28 application is submitted pursuant to Section 65941.1 to the line 29 ordinances, policies, and standards adopted and in effect when the line 30 preliminary application was submitted.
line 31 (4) For purposes of this subdivision, “ordinances, policies, and line 32 standards” includes general plan, community plan, specific plan, line 33 zoning, design review standards and criteria, subdivision standards line 34 and criteria, and any other rules, regulations, requirements, and line 35 policies of a local agency, as defined in Section 66000, including line 36 those relating to development impact fees, capacity or connection line 37 fees or charges, permit or processing fees, and other exactions. line 38 (5) This subdivision shall not be construed in a manner that line 39 would lessen the restrictions imposed on a local agency, or lessen line 40 the protections afforded to a housing development project, that are 95 — 33 — AB 1886
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line 1 established by any other law, including any other part of this line 2 section.
line 3 (6) This subdivision shall not restrict the authority of a public line 4 agency or local agency to require mitigation measures to lessen line 5 the impacts of a housing development project under the California line 6 Environmental Quality Act (Division 13 (commencing with Section line 7 21000) of the Public Resources Code).
line 8 (7) With respect to completed residential units for which the line 9 project approval process is complete and a certificate of occupancy line 10 has been issued, nothing in this subdivision shall limit the line 11 application of later enacted ordinances, policies, and standards line 12 that regulate the use and occupancy of those residential units, such line 13 as ordinances relating to rental housing inspection, rent line 14 stabilization, restrictions on short-term renting, and business line 15 licensing requirements for owners of rental housing. line 16 (8) (A) This subdivision shall apply to a housing development line 17 project that submits a preliminary application pursuant to Section line 18 65941.1 before January 1, 2030.
line 19 (B) This subdivision shall become inoperative on January 1, line 20 2034.
line 21 (p) (1) Upon any motion for an award of attorney’s fees line 22 pursuant to Section 1021.5 of the Code of Civil Procedure, in a line 23 case challenging a local agency’s approval of a housing line 24 development project, a court, in weighing whether a significant line 25 benefit has been conferred on the general public or a large class line 26 of persons and whether the necessity of private enforcement makes line 27 the award appropriate, shall give due weight to the degree to which line 28 the local agency’s approval furthers policies of this section, line 29 including, but not limited to, subdivisions (a), (b), and (c), the line 30 suitability of the site for a housing development, and the line 31 reasonableness of the decision of the local agency. It is the intent line 32 of the Legislature that attorney’s fees and costs shall rarely, if ever, line 33 be awarded if a local agency, acting in good faith, approved a line 34 housing development project that satisfies conditions established line 35 in subclauses (I), (II), and (III) of clause (i) of subparagraph (D) line 36 of paragraph (6) of subdivision (h) or clauses (i), (ii), and (iii) of line 37 subparagraph (E) of paragraph (6) of subdivision (h). line 38 (2) This subdivision shall become inoperative on January 1, line 39 2031.
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line 1 (q) This section shall be known, and may be cited, as the line 2 Housing Accountability Act.
line 3 (r) The provisions of this section are severable. If any provision line 4 of this section or its application is held invalid, that invalidity shall line 5 not affect other provisions or applications that can be given effect line 6 without the invalid provision or application.
line 7 SEC. 3. In adding paragraph (2) to subdivision (h) of Section line 8 65585 of the Government Code, as amended by Section 1 of this line 9 act, it is the intent of the Legislature to confirm that local agencies line 10 cannot self-certify housing element compliance and to ratify the line 11 regulatory interpretation expressed in the March 16, 2023, line 12 memorandum from the Department of Housing and Community line 13 Development to planning directors and interested parties, which line 14 states, “where a jurisdiction submits an ‘adopted’ housing line 15 element before submitting an initial draft or before considering line 16 HCD’s findings on an initial draft, HCD will consider the ‘adopted’ line 17 to be an initial draft for purposes of both HCD’s review and the line 18 jurisdiction’s statutory compliance,” and “a jurisdiction does not line 19 have the authority to determine that its adopted element is in line 20 substantial compliance but may provide reasoning why HCD line 21 should make a finding of substantial compliance. In addition, a line 22 jurisdiction is ‘in compliance’ as of the date of HCD’s letter finding line 23 the adopted element in substantial compliance. Any other letters line 24 are not a finding of substantial compliance.” In this respect, line 25 paragraph (2) of subdivision (h) of Section 65585 of the line 26 Government Code, as amended by Section 1 of this act, does not line 27 constitute a change in, but is declaratory of, existing law. line 28 SEC. 4. It is the intent of the Legislature that paragraph (2) of line 29 subdivision (h) of Section 65585 of the Government Code, as line 30 amended by Section 1 of this act, does not alter the interpretation line 31 of the terms “substantially complies” or “substantial compliance” line 32 as set forth in Section 44 of Chapter 1009 of the Statutes of 1984. line 33 SEC. 5. No reimbursement is required by this act pursuant to line 34 Section 6 of Article XIIIB of the California Constitution because line 35 a local agency or school district has the authority to levy service line 36 charges, fees, or assessments sufficient to pay for the program or line 37 level of service mandated by this act, within the meaning of Section line 38 17556 of the Government Code.
O
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AMENDED IN SENATE JUNE 26, 2024
AMENDED IN SENATE JUNE 20, 2024
AMENDED IN SENATE JUNE 10, 2024
AMENDED IN ASSEMBLY APRIL 30, 2024
AMENDED IN ASSEMBLY APRIL 18, 2024
AMENDED IN ASSEMBLY APRIL 1, 2024
california legislature—2023–24 regular session
ASSEMBLY BILL No. 1893
Introduced by Assembly Member Wicks
January 23, 2024
An act to amend Section 65589.5 of the Government Code, relating to land use.
legislative counsel’s digest
AB 1893, as amended, Wicks. Housing Accountability Act: housing disapprovals: required local findings.
The Planning and Zoning Law requires a city or county to adopt a general plan for land use development within its boundaries that includes, among other things, a housing element. Existing law, commonly referred to as the Housing Element Law, prescribes requirements for a city’s or county’s preparation of, and compliance with, its housing element, and requires the Department of Housing and Community Development to review and determine whether the housing element substantially complies with the Housing Element Law, as specified.
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Existing law, the Housing Accountability Act, among other things, prohibits a local agency from disapproving, or conditioning approval in a manner that renders infeasible, a housing development project for very low, low-, or moderate-income households unless the local agency makes written findings as to one of certain sets of conditions, as specified. Among these conditions, the act allows a local agency to disapprove a housing development project that is inconsistent with the jurisdiction’s zoning ordinances and general plan land use designation as it existed on the date the application was deemed complete, if the jurisdiction has adopted a revised housing element that is in substantial compliance with the Housing Element Law, as specified.
This bill would make various changes to that condition. The bill would specify that a local agency may disapprove or condition approval of a housing development project or emergency shelter, as described above, if the local agency makes written findings that on the date the application for the housing development project or emergency shelter was deemed complete the jurisdiction did not have an adopted revised housing element that was in substantial compliance with the Housing Element Law and the housing development project is not a builder’s remedy project, as defined.
Existing law defines various terms for purposes of the Housing Accountability Act. Among these terms, the act defines “housing development project” to mean a use consisting of residential units only, mixed-use developments consisting of residential and nonresidential uses with at least 2⁄3 of the square footage designated for residential use, or transitional or supportive housing. The act also defines the term “disapprove the housing development project” to include, among other things, any instance in which a local agency votes on a proposed housing development project application and the application is disapproved.
The act also defines the term “housing for very low, low, or moderate income households,” as provided.
This bill would revise the definition of “housing development project” to (1) expand the scope of mixed-use developments that qualify under that definition and (2) include farmworker housing, as defined, within that definition. The bill would also revise the definition of “disapprove the housing development project” to (1) include any instance in which a local agency takes final administrative action on the application and the application is disapproved and (2) additionally provide that a local agency disapproves the project if it undertakes a an unjustified, dilatory, or egregious course of conduct from which a reasonable person would 93 AB 1893 — 2 —
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conclude that the local agency intends to effectively disapprove disapproves the proposed project, as specified. The bill would also recast the definition of the term “housing for very low, low, or moderate-income households” to mean housing for lower income households, mixed-income households, or moderate-income households.
The bill would add various definitions, including “housing for lower income households,” “housing for mixed-income households,” and “housing for moderate-income households.”
Existing law authorizes a development proponent to submit an application for a development subject to a streamlined, ministerial approval process if the development complies with certain objective planning standards, including, among others, that the development is compliant with the maximum density allowed within that land use designation. Existing law, the Affordable Housing and High Road Jobs Act of 2022, until January 1, 2033, authorizes a development proponent to submit an application for a mixed-income housing development that meets specified objective standards and affordability and site criteria, including satisfying specified density thresholds. The act makes a development that meets those objective standards and affordability and site criteria a use by right and subject to a streamlined, ministerial review process.
This bill would prescribe requirements that apply to a housing development project that is a builder’s remedy project, including that a builder’s remedy project is deemed to be in compliance with specified residential density standards and specified objective zoning standards, objective subdivision standards, and objective design review standards necessary for the streamlined, ministerial approval processes described above. By imposing additional duties on local agencies with respect to the review and approval of builder’s remedy projects, the bill would impose a state-mandated local program.
The Housing Accountability Act authorizes certain persons to bring an action to enforce the act’s provisions and requires a court to order certain relief if the court makes certain findings.
This bill would require court to order the relief referenced above if the court finds that the local agency violated the builder’s remedy project provisions described above.
The California Constitution requires the state to reimburse local agencies and school districts for certain costs mandated by the state.
Statutory provisions establish procedures for making that reimbursement. 93 — 3 — AB 1893
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This bill would provide that no reimbursement is required by this act for a specified reason.
Vote: majority. Appropriation: no. Fiscal committee: yes.
State-mandated local program: yes.
The people of the State of California do enact as follows:
line 1 SECTION 1. The Legislature finds and declares all of the line 2 following:
line 3 (a) California has an ongoing statewide housing shortage crisis. line 4 The Legislative legislative findings, declarations, and intent set line 5 forth in Section 65580, Section 65581, and subdivision (a) of line 6 Section 65589.5 of the Government Code are reiterated and line 7 incorporated here by reference.
line 8 (b) In addition, according to the latest update to the Statewide line 9 Housing Plan, updated every four years as required by law under line 10 Section 50423 of the Health and Safety Code, recent data confirms line 11 a need to plan for a minimum of 2,500,000 homes statewide over line 12 the next eight-year cycle, including at least 643,352 homes for line 13 very low income households, 384,910 homes for low-income line 14 households, 420,814 homes for moderate-income households, and line 15 1,051,177 homes for above moderate-income households. line 16 California Department of Housing and Community Development, line 17 A Home for Every Californian: 2022 Statewide Housing Plan, line 18 March 2022 (available at
line 19 https://statewide-housing-plan-cahcd.hub.arcgis.com). households line 20 (Department of Housing and Community Development, A Home line 21 for Every Californian: 2022 Statewide Housing Plan (March 2022) line 22 available at https://statewide-housing-plan-cahcd.hub.arcgis.com). line 23 (c) The state’s statutory housing objectives are not attainable line 24 absent the timely cooperation of all local governments, including line 25 charter cities, to update and faithfully implement their housing line 26 elements without delay. Indeed, the Legislature has long recognized line 27 the role local governments have to use the powers vested in them line 28 to meet the housing needs of all economic segments of the line 29 community.
line 30 (d) Relatedly, one of the most efficient and effective means of line 31 assuring cooperation from local governments in achieving the line 32 statewide goal of planning and permitting enough housing so that line 33 supply can meet demand is an effective self-executing remedy that 93 AB 1893 — 4 —
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line 1 housing developers can avail themselves of when local housing line 2 elements are not timely updated and implemented. line 3 (e) To achieve the state’s statutory housing objective, the line 4 Legislature has amended the Housing Element Law, as set forth line 5 in Article 10.6 (commencing with Section 65580) of Chapter 3 of line 6 Division 1 of Title 7 of the Government Code, to reflect the line 7 complexities of existing land use practices and economic realities, line 8 and to prompt local governments to timely adopt and implement line 9 their updated housing elements.
line 10 (f) While the Legislature has, in recent years, modernized and line 11 updated many provisions in the Housing Element Law, provisions line 12 setting forth remedial measures that do not require judicial line 13 intervention have largely been left untouched.
line 14 (g) Although the Legislature recognizes and continues to believe line 15 that each locality is best capable of determining how it should meet line 16 and address its share of regional housing needs, current land use line 17 permitting practices continue to hinder the state’s statutory housing line 18 objectives in increasing housing supply to meet demand. line 19 (h) Harmonizing the interests of all state and local agencies to line 20 eliminate counterproductive actions—such as by prohibiting overly line 21 burdensome land use controls, while providing clear guidance at line 22 the state level as to the implementation of self-executing line 23 remedies—is essential to attaining the state’s statutory housing line 24 objectives.
line 25 (i) Self-executing remedies, such as the existing “builder’s line 26 remedy” provision set forth in the Housing Accountability Act, line 27 can be more effectively deployed by the private sector to develop line 28 more housing projects of all levels of affordability, and would line 29 encourage local agencies to adopt and implement housing elements line 30 in a timely fashion, if the Legislature provides clearer guidance to line 31 obviate the need for judicial intervention, and would lower barriers line 32 to economic feasibility. To that end, the amendments set forth in line 33 this act with respect to “builder’s remedy” projects are intended line 34 to provide greater clarity of existing law, and should not be line 35 interpreted as constraints on or impediments to processing current line 36 “builder’s remedy” project applications deemed complete. line 37 (j) Absent statewide measures to promote the immediate line 38 production of new homes, the imbalance between supply and line 39 demand in housing will likely continue in the foreseeable future. line 40 Left unabated, the unmet demand will lead to even higher housing 93 — 5 — AB 1893
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line 1 costs. According to the Legislative Analyst’s Office report, 2015, line 2 California’s High Housing Costs: Causes and Consequences, line 3 California’s High Housing Costs: Causes and Consequences line 4 (2015), California needs to produce around 210,000 market rate line 5 units annually “to seriously mitigate its problems with housing line 6 affordability.” Moreover, considerable evidence shows that: new line 7 market-rate housing improves overall housing affordability at the line 8 statewide, regional, local, and neighborhood levels; when new line 9 market-rate production is significantly constrained relative to line 10 existing and future demand, existing housing units come under line 11 gentrification pressure; and robust market-rate housing production line 12 does not, absent demolishing existing affordable housing units, line 13 cause displacement of low-income households (LAO report, 2016, line 14 Perspectives on Helping Low-Income Californians Afford Housing, line 15 and Chapple, Hwang, Jeon, Zhang, Greenberg, and Shrimali, 2022, line 16 Housing Market Interventions and Residential Mobility in the San line 17 Francisco Bay Area, Federal Reserve Bank of San Francisco line 18 Community Development Working Paper 2022-1; (Legislative line 19 Analyst’s Office, Perspectives on Helping Low-Income Californians line 20 Afford Housing (2016) and Chapple, Hwang, Jeon, Zhang, line 21 Greenberg, and Shrimali, Housing Market Interventions and line 22 Residential Mobility in the San Francisco Bay Area, Federal line 23 Reserve Bank of San Francisco Community Development Working line 24 Paper 2022-1 (2022); doi: 10.24148/cdwp2022-01). Other recent line 25 studies confirm that building new market-rate housing has a line 26 positive impact on increasing more housing opportunities for line 27 lower-income households. Mast, 2023, “JUE Insight: The Effect line 28 of New Market-Rate Housing Construction on the Low-Income line 29 Housing Market,” Journal of Urban Economics, Vol. 133, 2023; line 30 doi.org/10.1016/j.jue.2021.103383. lower income households line 31 (Mast, “JUE Insight: The Effect of New Market-Rate Housing line 32 Construction on the Low-Income Housing Market” (2023) 133 line 33 Journal of Urban Economics); doi.org/10.1016/j.jue.2021.103383). line 34 (k) The provision of adequate housing, in light of the severe line 35 shortage of housing at all income levels in this state, is a matter line 36 of statewide concern and is not a municipal affair as that term is line 37 used in Section 5 of Article XI of the California Constitution. line 38 Therefore, the entirety of the Housing Accountability Act, line 39 including the amendments set forth below to Section 65589.5 of 93 AB 1893 — 6 —
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line 1 the Government Code, continues to apply to all cities and counties, line 2 including charter cities.
line 3 SEC. 2. Section 65589.5 of the Government Code is amended line 4 to read:
line 5 65589.5. (a) (1) The Legislature finds and declares all of the line 6 following:
line 7 (A) The lack of housing, including emergency shelters, is a line 8 critical problem that threatens the economic, environmental, and line 9 social quality of life in California.
line 10 (B) California housing has become the most expensive in the line 11 nation. The excessive cost of the state’s housing supply is partially line 12 caused by activities and policies of many local governments that line 13 limit the approval of housing, increase the cost of land for housing, line 14 and require that high fees and exactions be paid by producers of line 15 housing.
line 16 (C) Among the consequences of those actions are discrimination line 17 against low-income and minority households, lack of housing to line 18 support employment growth, imbalance in jobs and housing, line 19 reduced mobility, urban sprawl, excessive commuting, and air line 20 quality deterioration.
line 21 (D) Many local governments do not give adequate attention to line 22 the economic, environmental, and social costs of decisions that line 23 result in disapproval of housing development projects, reduction line 24 in density of housing projects, and excessive standards for housing line 25 development projects.
line 26 (2) In enacting the amendments made to this section by the act line 27 adding this paragraph, the Legislature further finds and declares line 28 the following:
line 29 (A) California has a housing supply and affordability crisis of line 30 historic proportions. The consequences of failing to effectively line 31 and aggressively confront this crisis are hurting millions of line 32 Californians, robbing future generations of the chance to call line 33 California home, stifling economic opportunities for workers and line 34 businesses, worsening poverty and homelessness, and undermining line 35 the state’s environmental and climate objectives. line 36 (B) While the causes of this crisis are multiple and complex, line 37 the absence of meaningful and effective policy reforms to line 38 significantly enhance the approval and supply of housing affordable line 39 to Californians of all income levels is a key factor. 93 — 7 — AB 1893
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line 1 (C) The crisis has grown so acute in California that supply, line 2 demand, and affordability fundamentals are characterized in the line 3 negative: underserved demands, constrained supply, and protracted line 4 unaffordability.
line 5 (D) According to reports and data, California has accumulated line 6 an unmet housing backlog of nearly 2,000,000 units and must line 7 provide for at least 180,000 new units annually to keep pace with line 8 growth through 2025.
line 9 (E) California’s overall home ownership rate is at its lowest line 10 level since the 1940s. The state ranks 49th out of the 50 states in line 11 home ownership rates as well as in the supply of housing per capita. line 12 Only one-half of California’s households are able to afford the line 13 cost of housing in their local regions.
line 14 (F) Lack of supply and rising costs are compounding inequality line 15 and limiting advancement opportunities for many Californians. line 16 (G) The majority of California renters, more than 3,000,000 line 17 households, pay more than 30 percent of their income toward rent line 18 and nearly one-third, more than 1,500,000 households, pay more line 19 than 50 percent of their income toward rent.
line 20 (H) When Californians have access to safe and affordable line 21 housing, they have more money for food and health care; they are line 22 less likely to become homeless and in need of
line 23 government-subsidized services; their children do better in school; line 24 and businesses have an easier time recruiting and retaining line 25 employees.
line 26 (I) An additional consequence of the state’s cumulative housing line 27 shortage is a significant increase in greenhouse gas emissions line 28 caused by the displacement and redirection of populations to states line 29 with greater housing opportunities, particularly working- and line 30 middle-class households. California’s cumulative housing shortfall line 31 therefore has not only national but international environmental line 32 consequences.
line 33 (J) California’s housing picture has reached a crisis of historic line 34 proportions despite the fact that, for decades, the Legislature has line 35 enacted numerous statutes intended to significantly increase the line 36 approval, development, and affordability of housing for all income line 37 levels, including this section.
line 38 (K) The Legislature’s intent in enacting this section in 1982 and line 39 in expanding its provisions since then was to significantly increase line 40 the approval and construction of new housing for all economic 93 AB 1893 — 8 —
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line 1 segments of California’s communities by meaningfully and line 2 effectively curbing the capability of local governments to deny, line 3 reduce the density for, or render infeasible housing development line 4 projects and emergency shelters. That intent has not been fulfilled. line 5 (L) It is the policy of the state that this section be interpreted line 6 and implemented in a manner to afford the fullest possible weight line 7 to the interest of, and the approval and provision of, housing. line 8 (3) It is the intent of the Legislature that the conditions that line 9 would have a specific, adverse impact upon the public health and line 10 safety, as described in paragraph (2) of subdivision (d) and line 11 paragraph (1) of subdivision (j), arise infrequently. line 12 (b) It is the policy of the state that a local government not reject line 13 or make infeasible housing development projects, including line 14 emergency shelters, that contribute to meeting the need determined line 15 pursuant to this article without a thorough analysis of the economic, line 16 social, and environmental effects of the action and without line 17 complying with subdivision (d).
line 18 (c) The Legislature also recognizes that premature and line 19 unnecessary development of agricultural lands for urban uses line 20 continues to have adverse effects on the availability of those lands line 21 for food and fiber production and on the economy of the state. line 22 Furthermore, it is the policy of the state that development should line 23 be guided away from prime agricultural lands; therefore, in line 24 implementing this section, local jurisdictions should encourage, line 25 to the maximum extent practicable, in filling existing urban areas. line 26 (d) A local agency shall not disapprove For a housing line 27 development project for very low, low-, or moderate-income line 28 households, or an emergency shelter, a local agency shall not line 29 disapprove the housing development project or emergency shelter, line 30 or condition approval in a manner that renders the housing line 31 development project or emergency shelter infeasible, including line 32 through the use of design review standards, unless it makes written line 33 findings, based upon a preponderance of the evidence in the record, line 34 as to one of the following:
line 35 (1) The jurisdiction has adopted a housing element pursuant to line 36 this article that has been revised in accordance with Section 65588, line 37 is in substantial compliance with this article, and the jurisdiction line 38 has met or exceeded its share of the regional housing need line 39 allocation pursuant to Section 65584 for the planning period for line 40 the income category proposed for the housing development project, 93 — 9 — AB 1893
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line 1 provided that any disapproval or conditional approval shall not be line 2 based on any of the reasons prohibited by Section 65008. If the line 3 housing development project includes a mix of income categories, line 4 and the jurisdiction has not met or exceeded its share of the regional line 5 housing need for one or more of those categories, then this line 6 paragraph shall not be used to disapprove or conditionally approve line 7 the housing development project. The share of the regional housing line 8 need met by the jurisdiction shall be calculated consistently with line 9 the forms and definitions that may be adopted by the Department line 10 of Housing and Community Development pursuant to Section line 11 65400. In the case of an emergency shelter, the jurisdiction shall line 12 have met or exceeded the need for emergency shelter, as identified line 13 pursuant to paragraph (7) of subdivision (a) of Section 65583. Any line 14 disapproval or conditional approval pursuant to this paragraph line 15 shall be in accordance with applicable law, rule, or standards. line 16 (2) The housing development project or emergency shelter as line 17 proposed would have a specific, adverse impact upon the public line 18 health or safety, and there is no feasible method to satisfactorily line 19 mitigate or avoid the specific, adverse impact without rendering line 20 the development unaffordable to low- and moderate-income line 21 households or rendering the development of the emergency shelter line 22 financially infeasible. As used in this paragraph, a “specific, line 23 adverse impact” means a significant, quantifiable, direct, and line 24 unavoidable impact, based on objective, identified written public line 25 health or safety standards, policies, or conditions as they existed line 26 on the date the application was deemed complete. The following line 27 shall not constitute a specific, adverse impact upon the public line 28 health or safety:
line 29 (A) Inconsistency with the zoning ordinance or general plan line 30 land use designation.
line 31 (B) The eligibility to claim a welfare exemption under line 32 subdivision (g) of Section 214 of the Revenue and Taxation Code. line 33 (3) The denial of the housing development project or imposition line 34 of conditions is required in order to comply with specific state or line 35 federal law, and there is no feasible method to comply without line 36 rendering the development unaffordable to low- and line 37 moderate-income households or rendering the development of the line 38 emergency shelter financially infeasible.
line 39 (4) The housing development project or emergency shelter is line 40 proposed on land zoned for agriculture or resource preservation 93 AB 1893 — 10 —
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line 1 that is surrounded on at least two sides by land being used for line 2 agricultural or resource preservation purposes, or which does not line 3 have adequate water or wastewater facilities to serve the project. line 4 (5) On the date the application for the housing development line 5 project or emergency shelter was deemed complete, the jurisdiction line 6 had adopted a revised housing element that was in substantial line 7 compliance with this article, and the housing development project line 8 or emergency shelter was inconsistent with both the jurisdiction’s line 9 zoning ordinance and general plan land use designation as specified line 10 in any element of the general plan.
line 11 (A) This paragraph shall not be utilized to disapprove or line 12 conditionally approve a housing development project proposed on line 13 a site that is identified as suitable or available for very low, low-, line 14 or moderate-income households in the jurisdiction’s housing line 15 element if the housing development project is consistent with the line 16 density specified in the housing element, even though the housing line 17 development project was inconsistent with both the jurisdiction’s line 18 zoning ordinance and general plan land use designation on the date line 19 the application was deemed complete.
line 20 (B) If the local agency has failed to identify a zone or zones line 21 where emergency shelters are allowed as a permitted use without line 22 a conditional use or other discretionary permit, has failed to line 23 demonstrate that the identified zone or zones include sufficient line 24 capacity to accommodate the need for emergency shelter identified line 25 in paragraph (7) of subdivision (a) of Section 65583, or has failed line 26 to demonstrate that the identified zone or zones can accommodate line 27 at least one emergency shelter, as required by paragraph (4) of line 28 subdivision (a) of Section 65583, then this paragraph shall not be line 29 utilized to disapprove or conditionally approve an emergency line 30 shelter proposed for a site designated in any element of the general line 31 plan for industrial, commercial, or multifamily residential uses. In line 32 any action in court, the burden of proof shall be on the local agency line 33 to show that its housing element does satisfy the requirements of line 34 paragraph (4) of subdivision (a) of Section 65583. line 35 (6) On the date the application for the housing development line 36 project or emergency shelter was deemed complete, the jurisdiction line 37 did not have an adopted revised housing element that was in line 38 substantial compliance with this article and the housing line 39 development project is not a builder’s remedy project. 93 — 11 — AB 1893
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line 1 (e) Nothing in this section shall be construed to relieve the local line 2 agency from complying with the congestion management program line 3 required by Chapter 2.6 (commencing with Section 65088) of line 4 Division 1 of Title 7 or the California Coastal Act of 1976 line 5 (Division 20 (commencing with Section 30000) of the Public line 6 Resources Code). Neither shall anything in this section be line 7 construed to relieve the local agency from making one or more of line 8 the findings required pursuant to Section 21081 of the Public line 9 Resources Code or otherwise complying with the California line 10 Environmental Quality Act (Division 13 (commencing with Section line 11 21000) of the Public Resources Code).
line 12 (f) (1) Except as provided in paragraphs (5) and (6) of line 13 subdivision (d), paragraph (6) of this subdivision, and subdivision line 14 (o), nothing in this section shall be construed to prohibit a local line 15 agency from requiring the housing development project to comply line 16 with objective, quantifiable, written development standards, line 17 conditions, and policies appropriate to, and consistent with, meeting line 18 the jurisdiction’s share of the regional housing need pursuant to line 19 Section 65584. However, the development standards, conditions, line 20 and policies shall be applied to facilitate and accommodate line 21 development at the density permitted on the site and proposed by line 22 the development. Nothing in this section shall limit a project’s line 23 eligibility for a density bonus, incentive, or concession, or waiver line 24 or reduction of development standards and parking ratios, pursuant line 25 to Section 65915.
line 26 (2) Except as provided in subdivision (o), nothing in this section line 27 shall be construed to prohibit a local agency from requiring an line 28 emergency shelter project to comply with objective, quantifiable, line 29 written development standards, conditions, and policies that are line 30 consistent with paragraph (4) of subdivision (a) of Section 65583 line 31 and appropriate to, and consistent with, meeting the jurisdiction’s line 32 need for emergency shelter, as identified pursuant to paragraph line 33 (7) of subdivision (a) of Section 65583. However, the development line 34 standards, conditions, and policies shall be applied by the local line 35 agency to facilitate and accommodate the development of the line 36 emergency shelter project.
line 37 (3) Except as provided in subdivision (o), nothing in this section line 38 shall be construed to prohibit a local agency from imposing fees line 39 and other exactions otherwise authorized by law that are essential 93 AB 1893 — 12 —
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line 1 to provide necessary public services and facilities to the housing line 2 development project or emergency shelter.
line 3 (4) For purposes of this section, a housing development project line 4 or emergency shelter shall be deemed consistent, compliant, and line 5 in conformity with an applicable plan, program, policy, ordinance, line 6 standard, requirement, or other similar provision if there is line 7 substantial evidence that would allow a reasonable person to line 8 conclude that the housing development project or emergency line 9 shelter is consistent, compliant, or in conformity. line 10 (5) For purposes of this section, a change to the zoning ordinance line 11 or general plan land use designation subsequent to the date the line 12 application was deemed complete shall not constitute a valid basis line 13 to disapprove or condition approval of the housing development line 14 project or emergency shelter.
line 15 (6) Notwithstanding paragraphs (1) to (5), inclusive, all of the line 16 following apply to a housing development project that is a builder’s line 17 remedy project:
line 18 (A) A local agency may only require the project to comply with line 19 the objective, quantifiable, written development standards, line 20 conditions, and policies that would have applied to the project had line 21 it been proposed on a site with a general plan designation and line 22 zoning classification that allow the density and unit type proposed line 23 by the applicant. If the local agency has no general plan designation line 24 or zoning classification that would have allowed the density and line 25 unit type proposed by the applicant, the development proponent line 26 may identify any objective, quantifiable, written development line 27 standards, conditions, and policies associated with a different line 28 general plan designation or zoning classification within that line 29 jurisdiction, that facilitate the project’s density and unit type, and line 30 those shall apply.
line 31 (B) (i) Except as authorized by paragraphs (1) to (4), inclusive, line 32 of subdivision (d), a local agency shall not apply any individual line 33 or combination of objective, quantifiable, written development line 34 standards, conditions, and policies to the project that do any of the line 35 following:
line 36 (I) Render the project infeasible.
line 37 (II) Preclude a project that meets the requirements allowed to line 38 be imposed by subparagraph (A), as modified by any density bonus, line 39 incentive, or concession, or waiver or reduction of development 93 — 13 — AB 1893
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line 1 standards and parking ratios, pursuant to Section 65915, from line 2 being constructed as proposed by the applicant.
line 3 (ii) The local agency shall bear the burden of proof of complying line 4 with clause (i).
line 5 (C) (i) A project applicant that qualifies for a density bonus line 6 pursuant to Section 65915 shall receive two incentives or line 7 concessions in addition to those granted pursuant to paragraph (2) line 8 of subdivision (d) of Section 65915.
line 9 (ii) Notwithstanding paragraph (6) of subdivision (o) of Section line 10 65915, for purposes of this paragraph, maximum allowable line 11 residential density means the density permitted for a builder’s line 12 remedy project.
line 13 (iii) A project that dedicates units to extremely low-income line 14 households pursuant to subclause (I) of clause (i) of subparagraph line 15 (C) of paragraph (3) of subdivision (h) shall be eligible for the line 16 same density bonus, incentives or concessions, and waivers or line 17 reductions of development standards as provided to a housing line 18 development project that dedicates three percentage points more line 19 units to very low income households pursuant to paragraph (2) of line 20 subdivision (f) of Section 65915.
line 21 (D) (i) The project shall not be required to apply for, or receive line 22 approval of, a general plan amendment, specific plan amendment, line 23 rezoning, or other legislative approval.
line 24 (ii) The project shall not be required to apply for, or receive, line 25 any approval or permit not generally required of a project of the line 26 same type and density proposed by the applicant. line 27 (iii) The project shall be deemed consistent, compliant, and in line 28 conformity with an applicable plan, program, policy, ordinance, line 29 standard, requirement, redevelopment plan and implementing line 30 instruments, or other similar provision for all purposes, and shall line 31 not be considered or treated as a nonconforming lot, use, or line 32 structure for any purpose.
line 33 (E) A local government agency shall not adopt or impose any line 34 requirement, process, practice, or procedure, including, but not line 35 limited to, increased fees or inclusionary housing requirements, line 36 that applies to a project solely or partially on the basis that the line 37 project is a builder’s remedy project.
line 38 (F) (i) A builder’s remedy project shall be deemed to be in line 39 compliance with the residential density standards contained in line 40 subdivision (b) of Section 65912.123.
93 AB 1893 — 14 —
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line 1 (ii) A builder’s remedy project shall be deemed to comply with line 2 the objective zoning standards, objective subdivision standards, line 3 and objective design review standards contained in paragraph (5) line 4 of subdivision (a) of Section 65913.4.
line 5 (G) For purposes of this paragraph, “objective, quantifiable, line 6 written development standards, conditions, and policies” means line 7 criteria that involve no personal or subjective judgment by a public line 8 official and are uniformly verifiable by reference to an external line 9 and uniform benchmark or criterion available and knowable by line 10 both the development applicant or proponent and the public official line 11 before submittal. Nothing herein shall affect the obligation of the line 12 housing development project to comply with the minimum building line 13 standards approved by the California Building Standards line 14 Commission as provided in Part 2.5 (commencing with Section line 15 18901) of Division 13 of the Health and Safety Code. In the event line 16 that applicable objective, quantifiable, written development line 17 standards, conditions, and policies are mutually inconsistent, a line 18 development shall be deemed consistent with the criteria that line 19 permits the density and unit type closest to that of the proposed line 20 project.
line 21 (7) (A) For a housing development project application that is line 22 deemed complete before January 1, 2025, the development line 23 proponent for the project may choose to be subject to the provisions line 24 of this section that were in place on the date the preliminary line 25 application was submitted, or, if the project meets the definition line 26 of a builder’s remedy project, it may choose to be subject to any line 27 or all of the provisions of this section applicable as of January 1, line 28 2025.
line 29 (B) Notwithstanding subdivision (c) of Section 65941.1, a line 30 housing development project deemed complete before January 1, line 31 2025, that is not a builder’s remedy project may choose to revise line 32 their application so that the project is a builder’s remedy project, line 33 even if the revision results in the number of residential units or line 34 square footage of construction changing by 20 percent or more. line 35 (8) A housing development project proposed on a site that is line 36 identified as suitable or available for very low, low-, or line 37 moderate-income households in the jurisdiction’s housing element, line 38 that is consistent with the density specified in the most recently line 39 updated and adopted housing element, and that is inconsistent with line 40 both the jurisdiction’s zoning ordinance and general plan land use 93 — 15 — AB 1893
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line 1 designation on the date the application was deemed complete, shall line 2 be subject to the provisions of subparagraphs (A), (B), (D), and line 3 (G) of paragraph (6).
line 4 (g) This section shall be applicable to charter cities because the line 5 Legislature finds that the lack of housing, including emergency line 6 shelter, is a critical statewide problem.
line 7 (h) The following definitions apply for the purposes of this line 8 section:
line 9 (1) “Feasible” means capable of being accomplished in a line 10 successful manner within a reasonable period of time, taking into line 11 account economic, environmental, social, and technological factors. line 12 (2) “Housing development project” means a use consisting of line 13 any of the following:
line 14 (A) Residential units only.
line 15 (B) Mixed-use developments consisting of residential and line 16 nonresidential uses that meet any of the following conditions:
line 17 (i) At least two-thirds of the new or converted square footage line 18 is designated for residential use.
line 19 (ii) At least 50 percent of the new or converted square footage line 20 is designated for residential use and the project includes at least line 21 500 net new residential units.
line 22 (iii) At least 50 percent of the net new or converted square line 23 footage is designated for residential use and the project meets all line 24 of the following:
line 25 (I) The project includes at least 500 net new residential units. line 26 (II) The project involves the demolition or conversion of at least line 27 100,000 square feet of nonresidential use.
line 28 (III) The project demolishes at least 50 percent of the existing line 29 nonresidential uses on the site.
line 30 (C) Transitional housing or supportive housing. line 31 (D) Farmworker housing, as defined in subdivision (h) of line 32 Section 50199.7 of the Health and Safety Code.
line 33 (3) (A) “Housing for very low, low-, or moderate-income line 34 households” means housing for lower income households, line 35 mixed-income households, or moderate-income households. line 36 (B) “Housing for lower income households” means a housing line 37 development project in which 100 percent of the units, excluding line 38 managers’ units, are dedicated to lower income households, as line 39 defined in Section 50079.5 of the Health and Safety Code, at an line 40 affordable cost, as defined by Section 50052.5 of the Health and 93 AB 1893 — 16 —
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line 1 Safety Code, or an affordable rent set in an amount consistent with line 2 the rent limits established by the California Tax Credit Allocation line 3 Committee. The units shall be subject to a recorded deed restriction line 4 for a period of 55 years for rental units and 45 years for line 5 owner-occupied units.
line 6 (C) (i) “Housing for mixed-income households” means any of line 7 the following:
line 8 (I) A housing development project in which at least seven 7 line 9 percent of the total units, as defined in subparagraph (A) of line 10 paragraph (8) of subdivision (o) of Section 65915, are dedicated line 11 to extremely low income households, as defined in Section 50106 line 12 of the Health and Safety Code.
line 13 (II) A housing development project in which at least 10 percent line 14 of the total units, as defined in subparagraph (A) of paragraph (8) line 15 of subdivision (o) of Section 65915, are dedicated to very low line 16 income households, as defined in Section 50105 of the Health and line 17 Safety Code.
line 18 (III) A housing development project in which at least 13 percent line 19 of the total units, as defined in subparagraph (A) of paragraph (8) line 20 of subdivision (o) of Section 65915, are dedicated to lower income line 21 households, as defined in Section 50079.5 of the Health and Safety line 22 Code.
line 23 (IV) A housing development project in which there are 10 or line 24 fewer total units, as defined in subparagraph (A) of paragraph (8) line 25 of subdivision (o) of Section 65915, that is on a site that is smaller line 26 than one acre, and that is proposed for development at a minimum line 27 density of 10 units per acre.
line 28 (ii) All units dedicated to extremely low income, very low line 29 income, and low-income households pursuant to clause (i) shall line 30 meet both of the following:
line 31 (I) The units shall have an affordable housing cost, as defined line 32 in Section 50052.5 of the Health and Safety Code, or an affordable line 33 rent, as defined in Section 50053 of the Health and Safety Code. line 34 (II) The development proponent shall agree to, and the local line 35 government agency shall ensure, the continued affordability of all line 36 affordable rental units included pursuant to this section for 55 years line 37 and all affordable ownership units included pursuant to this section line 38 for a period of 45 years.
line 39 (iii) (I) If the local government agency had a local affordable line 40 housing requirement, as defined in subdivision (g) of Section 93 — 17 — AB 1893
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line 1 65912.101, that on January 1, 2024, required a greater percentage line 2 of affordable units than required under this definition, or required line 3 an affordability level deeper than what is required under this line 4 definition, then, except as provided in subclauses (II) and (III), line 5 this paragraph does not prohibit the local government agency from line 6 requiring housing development for mixed-income households to line 7 comply with an otherwise lawfully applicable local affordability line 8 percentage or affordability level. The local agency shall not require line 9 housing for mixed-income households to comply with any other line 10 aspect of the local affordable housing requirement. line 11 (II) Notwithstanding subclause (I), the local affordable housing line 12 requirements shall not be applied to require housing for line 13 mixed-income households to dedicate more than 20 percent of the line 14 units to affordable units of any kind.
line 15 (III) Housing for mixed-income households that is required to line 16 dedicate 20 percent of the units to affordable units shall not be line 17 required to dedicate any of the affordable units at an income level line 18 deeper than lower income households, as defined in Section line 19 50079.5 of the Health and Safety Code.
line 20 (IV) A local agency may only require housing for mixed-income line 21 households to comply with the local percentage requirement or line 22 affordability level described in subclause (I) if it first makes written line 23 findings, supported by clear and convincing evidence, that line 24 compliance with the local percentage requirement or the line 25 affordability level, or both, would not render the housing line 26 development project infeasible. If a reasonable person could find line 27 compliance with either requirement, either alone or in combination, line 28 would render the project infeasible, the project shall not be required line 29 to comply with that requirement.
line 30 (iv) Affordable units in the development project shall have a line 31 comparable bedroom and bathroom count as the market rate units. line 32 (v) Each affordable unit dedicated pursuant to this subparagraph line 33 shall count toward satisfying a local affordable housing line 34 requirement. Each affordable unit dedicated pursuant to a local line 35 affordable housing requirement that meets the criteria established line 36 in this subparagraph shall count towards satisfying the requirements line 37 of this subparagraph. This is declaratory of existing law. line 38 (D) “Housing for moderate-income households” means a line 39 housing development project in which 100 percent of the units are line 40 sold or rented to moderate-income households, as defined in 93 AB 1893 — 18 —
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line 1 Section 50093 of the Health and Safety Code, at an affordable line 2 housing cost, as defined in Section 50052.5 of the Health and line 3 Safety Code, or an affordable rent, as defined in Section 50053 of line 4 the Health and Safety Code. The units shall be subject to a recorded line 5 deed restriction for a period of 55 years for rental units and 45 line 6 years for owner-occupied units.
line 7 (4) “Area median income” means area median income as line 8 periodically established by the Department of Housing and line 9 Community Development pursuant to Section 50093 of the Health line 10 and Safety Code. The developer shall provide sufficient legal line 11 commitments to ensure continued availability of units for very low line 12 or low-income households in accordance with the provisions of line 13 this subdivision for 30 years.
line 14 (5) Notwithstanding any other law, until January 1, 2030, line 15 “deemed complete” means that the applicant has submitted a line 16 preliminary application pursuant to Section 65941.1 or, if the line 17 applicant has not submitted a preliminary application, has line 18 submitted a complete application pursuant to Section 65943. The line 19 local agency shall bear the burden of proof in establishing that the line 20 application is not complete.
line 21 (6) “Disapprove the housing development project” includes any line 22 instance in which a local agency does any of the following:
line 23 (A) Votes or takes final administrative action on a proposed line 24 housing development project application and the application is line 25 disapproved, including any required land use approvals or line 26 entitlements necessary for the issuance of a building permit. line 27 (B) Fails to comply with the time periods specified in line 28 subdivision (a) of Section 65950. An extension of time pursuant line 29 to Article 5 (commencing with Section 65950) shall be deemed to line 30 be an extension of time pursuant to this paragraph. line 31 (C) Fails to meet the time limits specified in Section 65913.3. line 32 (D) (i) Undertakes a an unjustified, dilatory, or egregious course line 33 of conduct, including sustained inaction or the imposition of line 34 burdensome processing requirements, from which a reasonable line 35 person would conclude that the local agency intends to effectively line 36 disapprove disapproves the proposed housing development project. line 37 (ii) A local agency’s failure to cease the course of conduct line 38 described in clause (i) or to issue written findings justifying that line 39 conduct shall create a rebuttable presumption that the local agency line 40 has disapproved the proposed housing development project. 93 — 19 — AB 1893
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line 1 (E) (i) Fails to make a determination of whether the project is line 2 exempt from the California Environmental Quality Act (Division line 3 13 (commencing with Section 21000) of the Public Resources line 4 Code), or commits an abuse of discretion, as defined in this line 5 subparagraph, if all of the following conditions are satisfied:
line 6 (I) There is substantial evidence in the record before the local line 7 agency that the housing development project is not located in either line 8 of the following:
line 9 (ia) On a site specified in subparagraphs (A) to (C), inclusive, line 10 or subparagraphs (E) to (K), inclusive, of paragraph (6) of line 11 subdivision (a) of Section 65913.4.
line 12 (ib) Within a very high fire hazard severity zone, as determined line 13 by the Department of Forestry and Fire Protection pursuant to line 14 Section 51178, or within a high or very high fire hazard severity line 15 zone as indicated on maps adopted by the Department of Forestry line 16 and Fire Protection pursuant to Section 4202 of the Public line 17 Resources Code.
line 18 (II) The housing development project is located on a legal parcel line 19 or parcels within an urbanized area and meets one or more of the line 20 following criteria:
line 21 (ia) The housing development project is located within one-half line 22 mile walking distance to either a high-quality transit corridor or a line 23 major transit stop.
line 24 (ib) The housing development project is located in a very low line 25 vehicle travel area.
line 26 (ic) The housing development project is proximal to six or more line 27 amenities pursuant to subclause (IV) of clause (ii) as of the date line 28 of submission of the application for the project. line 29 (id) Parcels that are developed with urban uses adjoin at least line 30 75 percent of the perimeter of the project site or at least three sides line 31 of a foursided four-sided project site. For purposes of this clause, line 32 parcels that are only separated by a street or highway shall be line 33 considered to be adjoined.
line 34 (III) The density of the housing development project meets or line 35 exceeds 15 dwelling units per acre.
line 36 (IV) Both of the following criteria are met:
line 37 (ia) There is substantial evidence in the record before the local line 38 agency that the housing development project is eligible for an line 39 exemption sought by the applicant.
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line 1 (ib) If the exemption sought by the applicant is subject to an line 2 exception under the Guidelines for Implementation of the line 3 California Environmental Quality Act (Chapter 3 (commencing line 4 with Section 15000) of Division 6 of Title 14 of the California line 5 Code of Regulations), there is substantial evidence in the record line 6 before the local agency that the application of that categorical line 7 exemption is not barred by one of the exceptions set forth in line 8 Section 15300.2 of those guidelines.
line 9 (V) (ia) The applicant has given timely written notice to the line 10 local agency of the action or inaction that the applicant believes line 11 constitutes a failure to make a determination or an abuse of line 12 discretion, as defined in this subparagraph, and the local agency line 13 did not make a lawful determination within 90 days of the line 14 applicant’s written notice. The applicant’s written notice shall line 15 contain all of the following:
line 16 (Ia) The information specified in paragraphs (1), (2), (5), and line 17 (6) of subdivision (a) of Section 15062 of Title 14 of the California line 18 Code of Regulations.
line 19 (Ib) A citation to the section of Title 14 of the California Code line 20 of Regulations or the statute under which the applicant asserts that line 21 the project is exempt.
line 22 (Ic) A brief statement of reasons supporting the assertion that line 23 the project is exempt.
line 24 (Id) A copy of the excerpts from the record constituting line 25 substantial evidence that the criteria of subclauses (I) to (IV), line 26 inclusive, are satisfied.
line 27 (ib) Within five working days of receiving the applicant’s line 28 written notice required by sub-subclause (ia), the local agency line 29 shall file the notice with the county clerk of each county in which line 30 the project will be located. The county clerk shall post the notice line 31 and make it available for public inspection in the manner set forth line 32 in subdivision (c) of Section 21152 of the Public Resources Code. line 33 Compliance with this sub-subclause is not a condition that must line 34 be satisfied in order to find that the local agency has disapproved line 35 the housing development project under this subparagraph. line 36 (ic) The local agency may, by providing a written response to line 37 the applicant within 90 additional days of the applicant’s written line 38 notice, extend the time period to make a lawful determination by line 39 no more than 90 days if the extension is necessary to determine if line 40 there is substantial evidence in the record that the housing 93 — 21 — AB 1893
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line 1 development project is eligible for the exemption sought by the line 2 applicant.
line 3 (id) If the local agency has given the applicant written notice line 4 of the local agency’s determination that the project is not exempt, line 5 the applicant’s notice shall be deemed timely if and only if it is line 6 delivered to the local agency within 35 days of the date that the line 7 local agency gave the applicant notice of the local agency’s line 8 determination.
line 9 (ie) If the local agency has not given the applicant the written line 10 notice described in sub-subclause (id), the applicant’s notice shall line 11 be deemed timely if given after 60 days from the date on which line 12 the project application has been received and accepted as complete line 13 by the lead agency, or 60 days from the date on which the project line 14 application has been determined or deemed to be complete within line 15 the meaning of Section 65943, whichever is earlier. line 16 (ii) For purposes of this subparagraph, the following definitions line 17 apply:
line 18 (I) “Abuse of discretion” means that the conditions set forth in line 19 subclauses (I) to (IV), inclusive, of clause (i) are satisfied, but the line 20 local agency does not determine that the project is exempt from line 21 the California Environmental Quality Act (Division 13 line 22 (commencing with Section 21000) of the Public Resources Code). line 23 This subclause sets forth the exclusive definition of “abuse of line 24 discretion” for purposes of this subparagraph.
line 25 (II) “High-quality transit corridor” has the same meaning defined line 26 in subdivision (b) of Section 21155 of the Public Resources Code. line 27 (III) “Major transit stop” has the same meaning as defined in line 28 Section 21064.3 of the Public Resources Code.
line 29 (IV) “Proximal” to an amenity means either of the following:
line 30 (ia) Within one-half mile of either of the following amenities:
line 31 (Ia) A bus station.
line 32 (Ib) A ferry terminal.
line 33 (ib) Within one mile, or for a parcel in a rural area, as defined line 34 in Section 50199.21 of the Health and Safety Code, within two line 35 miles, of any of the following amenities:
line 36 (Ia) A supermarket or grocery store.
line 37 (Ib) A public park.
line 38 (Ic) A community center.
line 39 (Id) A pharmacy or drugstore.
line 40 (Ie) A medical clinic or hospital.
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line 1 (If) A public library.
line 2 (Ig) A school that maintains a kindergarten or any of grades 1 line 3 to 12, inclusive.
line 4 (V) “Urbanized area” has the same meaning as defined in line 5 Section 21071 of the Public Resources Code.
line 6 (VI) (ia) “Very low vehicle travel area” means an urbanized line 7 area, as designated by the United States Census Bureau, where the line 8 existing residential development generates vehicle miles traveled line 9 per capita that is below 85 percent of either regional vehicle miles line 10 traveled per capita or city vehicle miles traveled per capita. line 11 (ib) For purposes of sub-subclause (ia), “area” may include a line 12 travel analysis zone, hexagon, or grid.
line 13 (ic) For the purposes of determining “regional vehicle miles line 14 traveled per capita” pursuant to sub-subclause (ia), a “region” is line 15 the entirety of incorporated and unincorporated areas governed by line 16 a multicounty or single-county metropolitan planning organization, line 17 or the entirety of the incorporated and unincorporated areas of an line 18 individual county that is not part of a metropolitan planning line 19 organization.
line 20 (iii) This subparagraph shall not be construed to require a local line 21 agency to determine that a project is exempt if, on the record before line 22 the local agency, the project is not eligible for exemption. line 23 (iv) This subparagraph shall become inoperative on January 1, line 24 2031.
line 25 (F) Fails to adopt a negative declaration or addendum for the line 26 project, to certify an environmental impact report for the project, line 27 or to approve another comparable environmental document, such line 28 as a sustainable communities environmental assessment pursuant line 29 to Section 21155.2 of the Public Resources Code, as required line 30 pursuant to the California Environmental Quality Act (Division line 31 13 (commencing with Section 21000) of the Public Resources line 32 Code), if all of the following conditions are satisfied:
line 33 (i) There is substantial evidence in the record before the local line 34 agency that the site of the housing development project is not line 35 located on either of the following:
line 36 (I) On a site specified in subparagraphs (A) to (C), inclusive, line 37 or subparagraphs (E) to (K), inclusive, of paragraph (6) of line 38 subdivision (a) of Section 65913.4.
line 39 (II) Within a very high fire hazard severity zone, as determined line 40 by the Department of Forestry and Fire Protection pursuant to 93 — 23 — AB 1893
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line 1 Section 51178, or within a high or very high fire hazard severity line 2 zone as indicated on maps adopted by the Department of Forestry line 3 and Fire Protection pursuant to Section 4202 of the Public line 4 Resources Code.
line 5 (ii) The housing development project is located on a legal parcel line 6 or parcels within an urbanized area and meets one or more of the line 7 following criteria:
line 8 (I) The housing development project is located within one-half line 9 mile walking distance to either a high-quality transit corridor or a line 10 major transit stop.
line 11 (II) The housing development project is located in a very low line 12 vehicle travel area.
line 13 (III) The housing development project is proximal to six or more line 14 amenities pursuant to subclause (IV) of clause (vii) as of the date line 15 of submission of the application for the project. line 16 (IV) Parcels that are developed with urban uses adjoin at least line 17 75 percent of the perimeter of the project site or at least three sides line 18 of a foursided four-sided project site. For purposes of this clause, line 19 parcels that are only separated by a street or highway shall be line 20 considered to be adjoined.
line 21 (iii) The density of the housing development project meets or line 22 exceeds 15 dwelling units per acre.
line 23 (iv) There has been prepared a negative declaration, addendum, line 24 environmental impact report, or comparable environmental review line 25 document that, if duly adopted, approved, or certified by the local line 26 agency, would satisfy the requirements of the California line 27 Environmental Quality Act (Division 13 (commencing with Section line 28 21000) of the Public Resources Code) with respect to the project. line 29 (v) The local agency or a body or official to which the agency line 30 has delegated authority to adopt, approve, or certify the negative line 31 declaration addendum, environmental impact report, or comparable line 32 environmental review document has held a meeting at which line 33 adoption, approval, or certification of the environmental review line 34 document was on the agenda and the environmental review line 35 document could have been adopted, approved, or certified, as line 36 applicable, but the agency did either of the following:
line 37 (I) Committed an abuse of discretion, as defined in this line 38 subparagraph.
line 39 (II) Failed to decide whether to require further study or to adopt, line 40 approve, or certify the environmental document. 93 AB 1893 — 24 —
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line 1 (vi) (I) The applicant has given timely written notice to the line 2 local agency of the action or inaction that the applicant believes line 3 constitutes a failure to decide or an abuse of discretion, and the line 4 local agency did not make a lawful determination about whether line 5 to adopt, approve, or certify the environmental review document line 6 within 90 days of the applicant’s written notice. The applicant’s line 7 written notice shall include a copy of those excerpts from the record line 8 that constitute substantial evidence that the criteria of clauses (i) line 9 to (iv), inclusive, are satisfied.
line 10 (II) If the local agency has voted to require further study, rather line 11 than adopting, approving, or certifying the negative declaration, line 12 addendum, environmental impact report, or comparable line 13 environmental review document in the form it was presented for line 14 the agency’s consideration, the applicant’s notice shall be deemed line 15 timely if and only if it is delivered to the local agency within 35 line 16 days of the date that the local agency gave written notice of its line 17 decision to the applicant.
line 18 (III) If the local agency has not voted to require further study, line 19 rather than adopting, approving, or certifying the negative line 20 declaration, addendum, environmental impact report, or comparable line 21 environmental review document in the form it was presented for line 22 the agency’s consideration, the applicant’s notice shall be deemed line 23 timely if given after the time period specified in Section 21151.5 line 24 of the Public Resources Code or another applicable provision of line 25 that code for completing the addendum, negative declaration, line 26 environmental impact report, or other comparable environmental line 27 review document, as applicable, has passed. If the Public Resources line 28 Code does not specifically describe the deadline to complete the line 29 applicable environmental document, a 180-day deadline is the line 30 applicable time period.
line 31 (vii) For purposes of this subparagraph, the following definitions line 32 apply:
line 33 (I) (ia) “Abuse of discretion” means either of the following:
line 34 (Ia) If the local agency fails to adopt a negative declaration, line 35 “abuse of discretion” means that the agency, in bad faith or without line 36 substantial evidence in the record to support a fair argument that line 37 further environmental study is necessary to identify or analyze line 38 potentially significant impacts on the physical environment, line 39 decided to require further environmental study rather than adopting line 40 the negative declaration.
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line 1 (Ib) If the local agency fails to adopt an addendum for the line 2 project, certify an environmental impact report for the project, or line 3 approve another comparable environmental document, “abuse of line 4 discretion” means that the agency, in bad faith or without line 5 substantial evidence in the record that further environmental study line 6 is legally required to identify or analyze potentially significant line 7 impacts on the physical environment, decided to require further line 8 environmental study rather than adopting, approving, or certifying line 9 the environmental review document.
line 10 (ib) This subclause sets forth the exclusive definition of “abuse line 11 of discretion” for purposes of this subparagraph. line 12 (II) “High-quality transit corridor” has the same meaning defined line 13 in subdivision (b) of Section 21155 of the Public Resources Code. line 14 (III) “Major transit stop” has the same meaning as defined in line 15 Section 21064.3 of the Public Resources Code.
line 16 (IV) “Proximal” to an amenity means either of the following:
line 17 (ia) Within one-half mile of either of the following amenities:
line 18 (Ia) A bus station.
line 19 (Ib) A ferry terminal.
line 20 (ib) Within one mile, or for a parcel in a rural area, as defined line 21 in Section 50199.21 of the Health and Safety Code, within two line 22 miles, of any of the following amenities:
line 23 (Ia) A supermarket or grocery store.
line 24 (Ib) A public park.
line 25 (Ic) A community center.
line 26 (Id) A pharmacy or drugstore.
line 27 (Ie) A medical clinic or hospital.
line 28 (If) A public library.
line 29 (Ig) A school that maintains a kindergarten or any of grades 1 line 30 to 12, inclusive.
line 31 (V) “Urbanized area” has the same meaning as defined in line 32 Section 21071 of the Public Resources Code.
line 33 (VI) (ia) “Very low vehicle travel area” means an urbanized line 34 area, as designated by the United States Census Bureau, where the line 35 existing residential development generates vehicle miles traveled line 36 per capita that is below 85 percent of either regional vehicle miles line 37 traveled per capita or city vehicle miles traveled per capita. line 38 (ib) For purposes of sub-subclause (ia), “area” may include a line 39 travel analysis zone, hexagon, or grid.
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line 1 (ic) For the purposes of determining “regional vehicle miles line 2 traveled per capita” pursuant to sub-subclause (ia), a “region” is line 3 the entirety of incorporated and unincorporated areas governed by line 4 a multicounty or single-county metropolitan planning organization, line 5 or the entirety of the incorporated and unincorporated areas of an line 6 individual county that is not part of a metropolitan planning line 7 organization.
line 8 (viii) This subparagraph shall become inoperative on January line 9 1, 2031.
line 10 (7) (A) For purposes of this section, “lawful determination” line 11 means any final decision about whether to approve or disapprove line 12 a statutory or categorical exemption or a negative declaration, line 13 addendum, environmental impact report, or comparable line 14 environmental review document under the California line 15 Environmental Quality Act (Division 13 (commencing with Section line 16 21000) of the Public Resources Code) that is not an abuse of line 17 discretion, as defined in clause (ii) of subparagraph (E) of line 18 paragraph (6) or clause (vii) of subparagraph (F) of paragraph (6). line 19 (B) This paragraph shall become inoperative on January 1, 2031. line 20 (8) “Lower density” includes any conditions that have the same line 21 effect or impact on the ability of the project to provide housing. line 22 (9) Until January 1, 2030, “objective” means involving no line 23 personal or subjective judgment by a public official and being line 24 uniformly verifiable by reference to an external and uniform line 25 benchmark or criterion available and knowable by both the line 26 development applicant or proponent and the public official. line 27 (10) Notwithstanding any other law, until January 1, 2030, line 28 “determined to be complete” means that the applicant has submitted line 29 a complete application pursuant to Section 65943. line 30 (11) “Builder’s remedy project” means a project that meets all line 31 of the following criteria:
line 32 (A) The project is a housing development project that provides line 33 housing for very low, low-, or moderate-income households. line 34 (B) On the date the application for the housing development line 35 project or emergency shelter was deemed complete, the jurisdiction line 36 did not have a housing element that was in substantial compliance line 37 with this article.
line 38 (C) The project has a density such that the number of units line 39 complies with all of the following conditions:
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line 1 (i) The density shall not exceed the greatest of the following line 2 densities, as calculated before the application of a density bonus line 3 pursuant to Section 65915,: 65915:
line 4 (I) Fifty percent greater than the minimum density deemed line 5 appropriate to accommodate housing for that jurisdiction as line 6 specified in subparagraph (B) of paragraph (3) of subdivision (c) line 7 of Section 65583.2.
line 8 (II) Three times the density allowed by the general plan, zoning line 9 ordinance, or state law, whichever is greater.
line 10 (III) The density that is consistent with the density specified in line 11 the housing element.
line 12 (ii) Notwithstanding clause (i), the greatest allowable density line 13 shall be 35 units per acre more than the amount allowable pursuant line 14 to clause (i), if any portion of the site is located within any of the line 15 following:
line 16 (I) One-half mile of a major transit stop, as defined in Section line 17 21064.3 of the Public Resources Code.
line 18 (II) A very low vehicle travel area, as defined in subdivision line 19 (h).
line 20 (III) A high or highest resource census tract, as identified by line 21 the latest edition of the “CTCAC/HCD Opportunity Map” line 22 published by the California Tax Credit Allocation Committee and line 23 the Department of Housing and Community Development. line 24 (D) (i) On sites that have a minimum density requirement and line 25 are located within one-half mile of a commuter rail station or a line 26 heavy rail station, the density of the project shall not be less than line 27 the minimum density required on the site.
line 28 (I) For purposes of this subparagraph, “commuter rail” means line 29 a railway that is not a light rail, streetcar, trolley, or tramway and line 30 that is for urban passenger train service consisting of local short line 31 distance travel operating between a central city and adjacent suburb line 32 with service operated on a regular basis by or under contract with line 33 a transit operator for the purpose of transporting passengers within line 34 urbanized areas, or between urbanized areas and outlying areas, line 35 using either locomotive hauled locomotive-hauled or self-propelled line 36 railroad passenger cars, with multitrip tickets and specific station line 37 to station station-to-station fares.
line 38 (II) For purposes of this subparagraph, “heavy rail” means an line 39 electric railway with the capacity for a heavy volume of traffic line 40 using high speed and rapid acceleration passenger rail cars 93 AB 1893 — 28 —
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line 1 operating singly or in multicar trains on fixed rails, separate line 2 rights-of-way from which all other vehicular and foot traffic are line 3 excluded, and high platform loading.
line 4 (ii) On all other sites with a minimum density requirement, the line 5 density of the project shall not be less than the local government’s line 6 agency’s minimum density or one-half of the minimum density line 7 deemed appropriate to accommodate housing for that jurisdiction line 8 as specified in subparagraph (B) of paragraph (3) of subdivision line 9 (c) of Section 65583.2, whichever is lower.
line 10 (E) The project site does not abut a site where more than line 11 one-third of the square footage on the site has been used, within line 12 the past three years, by a heavy industrial use, or a Title V line 13 industrial use, as those terms are defined in Section 65913.16. line 14 (12) “Condition approval” includes imposing on the housing line 15 development project, or attempting to subject it to, development line 16 standards, conditions, or policies.
line 17 (13) “Unit type” means the form of ownership and the kind of line 18 residential unit, including, but not limited to, single-family line 19 detached, single-family attached, for-sale, rental, multifamily, line 20 townhouse, condominium, apartment, manufactured homes and line 21 mobilehomes, factory-built housing, and residential hotel. line 22 (14) “Proposed by the applicant” means the plans and designs line 23 as submitted by the applicant, including, but not limited to, density, line 24 unit size, unit type, site plan, building massing, floor area ratio, line 25 amenity areas, open space, parking parking, and ancillary line 26 commercial uses.
line 27 (i) If any city, county, or city and county denies approval or line 28 imposes conditions, including design changes, lower density, or line 29 a reduction of the percentage of a lot that may be occupied by a line 30 building or structure under the applicable planning and zoning in line 31 force at the time the housing development project’s application is line 32 complete, that have a substantial adverse effect on the viability or line 33 affordability of a housing development for very low, low-, or line 34 moderate-income households, and the denial of the development line 35 or the imposition of conditions on the development is the subject line 36 of a court action which challenges the denial or the imposition of line 37 conditions, then the burden of proof shall be on the local legislative line 38 body to show that its decision is consistent with the findings as line 39 described in subdivision (d), and that the findings are supported 93 — 29 — AB 1893
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line 1 by a preponderance of the evidence in the record, and with the line 2 requirements of subdivision (o).
line 3 (j) (1) When a proposed housing development project complies line 4 with applicable, objective general plan, zoning, and subdivision line 5 standards and criteria, including design review standards, in effect line 6 at the time that the application was deemed complete, but the local line 7 agency proposes to disapprove the project or to impose a condition line 8 that the project be developed at a lower density, the local agency line 9 shall base its decision regarding the proposed housing development line 10 project upon written findings supported by a preponderance of the line 11 evidence on the record that both of the following conditions exist:
line 12 (A) The housing development project would have a specific, line 13 adverse impact upon the public health or safety unless the project line 14 is disapproved or approved upon the condition that the project be line 15 developed at a lower density. As used in this paragraph, a “specific, line 16 adverse impact” means a significant, quantifiable, direct, and line 17 unavoidable impact, based on objective, identified written public line 18 health or safety standards, policies, or conditions as they existed line 19 on the date the application was deemed complete. line 20 (B) There is no feasible method to satisfactorily mitigate or line 21 avoid the adverse impact identified pursuant to paragraph (1), other line 22 than the disapproval of the housing development project or the line 23 approval of the project upon the condition that it be developed at line 24 a lower density.
line 25 (2) (A) If the local agency considers a proposed housing line 26 development project to be inconsistent, not in compliance, or not line 27 in conformity with an applicable plan, program, policy, ordinance, line 28 standard, requirement, or other similar provision as specified in line 29 this subdivision, it shall provide the applicant with written line 30 documentation identifying the provision or provisions, and an line 31 explanation of the reason or reasons it considers the housing line 32 development to be inconsistent, not in compliance, or not in line 33 conformity as follows:
line 34 (i) Within 30 days of the date that the application for the housing line 35 development project is determined to be complete, if the housing line 36 development project contains 150 or fewer housing units. line 37 (ii) Within 60 days of the date that the application for the line 38 housing development project is determined to be complete, if the line 39 housing development project contains more than 150 units. 93 AB 1893 — 30 —
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line 1 (B) If the local agency fails to provide the required line 2 documentation pursuant to subparagraph (A), the housing line 3 development project shall be deemed consistent, compliant, and line 4 in conformity with the applicable plan, program, policy, ordinance, line 5 standard, requirement, or other similar provision. line 6 (3) For purposes of this section, the receipt of a density bonus, line 7 incentive, concession, waiver, or reduction of development line 8 standards pursuant to Section 65915 shall not constitute a valid line 9 basis on which to find a proposed housing development project is line 10 inconsistent, not in compliance, or not in conformity, with an line 11 applicable plan, program, policy, ordinance, standard, requirement, line 12 or other similar provision specified in this subdivision. line 13 (4) For purposes of this section, a proposed housing development line 14 project is not inconsistent with the applicable zoning standards line 15 and criteria, and shall not require a rezoning, if the housing line 16 development project is consistent with the objective general plan line 17 standards and criteria but the zoning for the project site is line 18 inconsistent with the general plan. If the local agency has complied line 19 with paragraph (2), the local agency may require the proposed line 20 housing development project to comply with the objective line 21 standards and criteria of the zoning which is consistent with the line 22 general plan, however, the standards and criteria shall be applied line 23 to facilitate and accommodate development at the density allowed line 24 on the site by the general plan and proposed by the proposed line 25 housing development project.
line 26 (k) (1) (A) (i) The applicant, a person who would be eligible line 27 to apply for residency in the housing development project or line 28 emergency shelter, or a housing organization may bring an action line 29 to enforce this section. If, in any action brought to enforce this line 30 section, a court finds that any of the following are met, the court line 31 shall issue an order pursuant to clause (ii):
line 32 (I) The local agency, in violation of subdivision (d), disapproved line 33 a housing development project or conditioned its approval in a line 34 manner rendering it infeasible for the development of an emergency line 35 shelter, or housing for very low, low-, or moderate-income line 36 households, including farmworker housing, without making the line 37 findings required by this section.
line 38 (II) The local agency, in violation of subdivision (j), disapproved line 39 a housing development project complying with applicable, line 40 objective general plan and zoning standards and criteria, or imposed 93 — 31 — AB 1893
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line 1 a condition that the project be developed at a lower density, without line 2 making the findings required by this section.
line 3 (III) (ia) Subject to sub-subclause (ib), the local agency, in line 4 violation of subdivision (o), required or attempted to require a line 5 housing development project to comply with an ordinance, policy, line 6 or standard not adopted and in effect when a preliminary line 7 application was submitted.
line 8 (ib) This subclause shall become inoperative on January 1, 2030. line 9 (IV) The local agency violated a provision of this section line 10 applicable to a builder’s remedy project.
line 11 (ii) If the court finds that one of the conditions in clause (i) is line 12 met, the court shall issue an order or judgment compelling line 13 compliance with this section within a time period not to exceed line 14 60 days, including, but not limited to, an order that the local agency line 15 take action on the housing development project or emergency line 16 shelter. The court may issue an order or judgment directing the line 17 local agency to approve the housing development project or line 18 emergency shelter if the court finds that the local agency acted in line 19 bad faith when it disapproved or conditionally approved the line 20 housing development or emergency shelter in violation of this line 21 section. The court shall retain jurisdiction to ensure that its order line 22 or judgment is carried out and shall award reasonable attorney’s line 23 fees and costs of suit to the plaintiff or petitioner, provided line 24 provided, however, that the court shall not award attorney’s fees line 25 in either of the following instances:
line 26 (I) The court finds, under extraordinary circumstances, that line 27 awarding fees would not further the purposes of this section. line 28 (II) (ia) In a case concerning a disapproval within the meaning line 29 of subparagraph (E) or (F) of paragraph (6) of subdivision (h), the line 30 court finds that the local agency acted in good faith and had line 31 reasonable cause to disapprove the housing development project line 32 due to the existence of a controlling question of law about the line 33 application of the California Environmental Quality Act (Division line 34 13 (commencing with Section 21000) of the Public Resources line 35 Code) or implementing guidelines as to which there was a line 36 substantial ground for difference of opinion at the time of the line 37 disapproval.
line 38 (ib) This subclause shall become inoperative on January 1, 2031. line 39 (B) Upon a determination that the local agency has failed to line 40 comply with the order or judgment compelling compliance with 93 AB 1893 — 32 —
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line 1 this section within the time period prescribed by the court, the line 2 court shall impose fines on a local agency that has violated this line 3 section and require the local agency to deposit any fine levied line 4 pursuant to this subdivision into a local housing trust fund. The line 5 local agency may elect to instead deposit the fine into the Building line 6 Homes and Jobs Trust Fund. The fine shall be in a minimum line 7 amount of ten thousand dollars ($10,000) per housing unit in the line 8 housing development project on the date the application was line 9 deemed complete pursuant to Section 65943. In determining the line 10 amount of fine to impose, the court shall consider the local line 11 agency’s progress in attaining its target allocation of the regional line 12 housing need pursuant to Section 65584 and any prior violations line 13 of this section. Fines shall not be paid out of funds already line 14 dedicated to affordable housing, including, but not limited to, Low line 15 and Moderate Income Housing Asset Funds, funds dedicated to line 16 housing for very low, low-, and moderate-income households, and line 17 federal HOME Investment Partnerships Program and Community line 18 Development Block Grant Program funds. The local agency shall line 19 commit and expend the money in the local housing trust fund line 20 within five years for the sole purpose of financing newly line 21 constructed housing units affordable to extremely low, very low, line 22 or low-income households. After five years, if the funds have not line 23 been expended, the money shall revert to the state and be deposited line 24 in the Building Homes and Jobs Trust Fund for the sole purpose line 25 of financing newly constructed housing units affordable to line 26 extremely low, very low, or low-income households. line 27 (C) If the court determines that its order or judgment has not line 28 been carried out within 60 days, the court may issue further orders line 29 as provided by law to ensure that the purposes and policies of this line 30 section are fulfilled, including, but not limited to, an order to vacate line 31 the decision of the local agency and to approve the housing line 32 development project, in which case the application for the housing line 33 development project, as proposed by the applicant at the time the line 34 local agency took the initial action determined to be in violation line 35 of this section, along with any standard conditions determined by line 36 the court to be generally imposed by the local agency on similar line 37 projects, shall be deemed to be approved unless the applicant line 38 consents to a different decision or action by the local agency. line 39 (D) Nothing in this section shall limit the court’s inherent line 40 authority to make any other orders to compel the immediate 93 — 33 — AB 1893
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line 1 enforcement of any writ brought under this section, including the line 2 imposition of fees and other sanctions set forth under Section 1097 line 3 of the Code of Civil Procedure.
line 4 (2) For purposes of this subdivision, “housing organization” line 5 means a trade or industry group whose local members are primarily line 6 engaged in the construction or management of housing units or a line 7 nonprofit organization whose mission includes providing or line 8 advocating for increased access to housing for low-income line 9 households and have filed written or oral comments with the local line 10 agency prior to action on the housing development project. A line 11 housing organization may only file an action pursuant to this line 12 section to challenge the disapproval of a housing development by line 13 a local agency. A housing organization shall be entitled to line 14 reasonable attorney’s fees and costs if it is the prevailing party in line 15 an action to enforce this section.
line 16 (l) If the court finds that the local agency (1) acted in bad faith line 17 when it violated this section and (2) failed to carry out the court’s line 18 order or judgment within the time period prescribed by the court, line 19 the court, in addition to any other remedies provided by this line 20 section, shall multiply the fine determined pursuant to subparagraph line 21 (B) of paragraph (1) of subdivision (k) by a factor of five. If a court line 22 has previously found that the local agency violated this section line 23 within the same planning period, the court shall multiply the fines line 24 by an additional factor for each previous violation. For purposes line 25 of this section, “bad faith” includes, but is not limited to, an action line 26 or inaction that is frivolous, pretextual, intended to cause line 27 unnecessary delay, or entirely without merit.
line 28 (m) (1) Any action brought to enforce the provisions of this line 29 section shall be brought pursuant to Section 1094.5 of the Code line 30 of Civil Procedure, and the local agency shall prepare and certify line 31 the record of proceedings in accordance with subdivision (c) of line 32 Section 1094.6 of the Code of Civil Procedure no later than 30 line 33 days after the petition is served, provided that the cost of line 34 preparation of the record shall be borne by the local agency, unless line 35 the petitioner elects to prepare the record as provided in subdivision line 36 (n) of this section. A petition to enforce the provisions of this line 37 section shall be filed and served no later than 90 days from the line 38 later of (1) the effective date of a decision of the local agency line 39 imposing conditions on, disapproving, or any other final action on line 40 a housing development project or (2) the expiration of the time 93 AB 1893 — 34 —
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line 1 periods specified in subparagraph (B) of paragraph (5) of line 2 subdivision (h). Upon entry of the trial court’s order, a party may, line 3 in order to obtain appellate review of the order, file a petition line 4 within 20 days after service upon it of a written notice of the entry line 5 of the order, or within such further time not exceeding an additional line 6 20 days as the trial court may for good cause allow, or may appeal line 7 the judgment or order of the trial court under Section 904.1 of the line 8 Code of Civil Procedure. If the local agency appeals the judgment line 9 of the trial court, the local agency shall post a bond, in an amount line 10 to be determined by the court, to the benefit of the plaintiff if the line 11 plaintiff is the project applicant.
line 12 (2) (A) A disapproval within the meaning of subparagraph (E) line 13 of paragraph (6) of subdivision (h) shall be final for purposes of line 14 this subdivision, if the local agency did not make a lawful line 15 determination within the time period set forth in subclause (V) of line 16 clause (i) of that subparagraph after the applicant’s timely written line 17 notice.
line 18 (B) This paragraph shall become inoperative on January 1, 2031. line 19 (3) (A) A disapproval within the meaning of subparagraph (E) line 20 of paragraph (6) of subdivision (h) shall be final for purposes of line 21 this subdivision, if the local agency did not make a lawful line 22 determination within 90 days of the applicant’s timely written line 23 notice.
line 24 (B) This paragraph shall become inoperative on January 1, 2031. line 25 (n) In any action, the record of the proceedings before the local line 26 agency shall be filed as expeditiously as possible and, line 27 notwithstanding Section 1094.6 of the Code of Civil Procedure or line 28 subdivision (m) of this section, all or part of the record may be line 29 prepared (1) by the petitioner with the petition or petitioner’s points line 30 and authorities, (2) by the respondent with respondent’s points and line 31 authorities, (3) after payment of costs by the petitioner, or (4) as line 32 otherwise directed by the court. If the expense of preparing the line 33 record has been borne by the petitioner and the petitioner is the line 34 prevailing party, the expense shall be taxable as costs. line 35 (o) (1) Subject to paragraphs (2), (6), and (7), and subdivision line 36 (d) of Section 65941.1, a housing development project shall be line 37 subject only to the ordinances, policies, and standards adopted and line 38 in effect when a preliminary application including all of the line 39 information required by subdivision (a) of Section 65941.1 was line 40 submitted.
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line 1 (2) Paragraph (1) shall not prohibit a housing development line 2 project from being subject to ordinances, policies, and standards line 3 adopted after the preliminary application was submitted pursuant line 4 to Section 65941.1 in the following circumstances:
line 5 (A) In the case of a fee, charge, or other monetary exaction, to line 6 an increase resulting from an automatic annual adjustment based line 7 on an independently published cost index that is referenced in the line 8 ordinance or resolution establishing the fee or other monetary line 9 exaction.
line 10 (B) A preponderance of the evidence in the record establishes line 11 that subjecting the housing development project to an ordinance, line 12 policy, or standard beyond those in effect when a preliminary line 13 application was submitted is necessary to mitigate or avoid a line 14 specific, adverse impact upon the public health or safety, as defined line 15 in subparagraph (A) of paragraph (1) of subdivision (j), and there line 16 is no feasible alternative method to satisfactorily mitigate or avoid line 17 the adverse impact.
line 18 (C) Subjecting the housing development project to an ordinance, line 19 policy, standard, or any other measure, beyond those in effect when line 20 a preliminary application was submitted is necessary to avoid or line 21 substantially lessen an impact of the project under the California line 22 Environmental Quality Act (Division 13 (commencing with Section line 23 21000) of the Public Resources Code).
line 24 (D) The housing development project has not commenced line 25 construction within two and one-half years, or three and one-half line 26 years for an affordable housing project, following the date that the line 27 project received final approval. For purposes of this subparagraph:
line 28 (i) “Affordable housing project” means a housing development line 29 that satisfies both of the following requirements:
line 30 (I) Units within the development are subject to a recorded line 31 affordability restriction for at least 55 years for rental housing and line 32 45 years for owner-occupied housing, or the first purchaser of each line 33 unit participates in an equity sharing agreement as described in line 34 subparagraph (C) of paragraph (2) of subdivision (c) of Section line 35 65915.
line 36 (II) All of the units within the development, excluding managers’ line 37 units, are dedicated to lower income households, as defined by line 38 Section 50079.5 of the Health and Safety Code.
line 39 (ii) “Final approval” means that the housing development project line 40 has received all necessary approvals to be eligible to apply for, 93 AB 1893 — 36 —
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line 1 and obtain, a building permit or permits and either of the following line 2 is met:
line 3 (I) The expiration of all applicable appeal periods, petition line 4 periods, reconsideration periods, or statute of limitations for line 5 challenging that final approval without an appeal, petition, request line 6 for reconsideration, or legal challenge having been filed. line 7 (II) If a challenge is filed, that challenge is fully resolved or line 8 settled in favor of the housing development project. line 9 (E) The housing development project is revised following line 10 submittal of a preliminary application pursuant to Section 65941.1 line 11 such that the number of residential units or square footage of line 12 construction changes by 20 percent or more, exclusive of any line 13 increase resulting from the receipt of a density bonus, incentive, line 14 concession, waiver, or similar provision, including any other locally line 15 authorized program that offers additional density or other line 16 development bonuses when affordable housing is provided. For line 17 purposes of this subdivision, “square footage of construction” line 18 means the building area, as defined by the California Building line 19 Standards Code (Title 24 of the California Code of Regulations). line 20 (3) This subdivision does not prevent a local agency from line 21 subjecting the additional units or square footage of construction line 22 that result from project revisions occurring after a preliminary line 23 application is submitted pursuant to Section 65941.1 to the line 24 ordinances, policies, and standards adopted and in effect when the line 25 preliminary application was submitted.
line 26 (4) For purposes of this subdivision, “ordinances, policies, and line 27 standards” includes general plan, community plan, specific plan, line 28 zoning, design review standards and criteria, subdivision standards line 29 and criteria, and any other rules, regulations, requirements, and line 30 policies of a local agency, as defined in Section 66000, including line 31 those relating to development impact fees, capacity or connection line 32 fees or charges, permit or processing fees, and other exactions. line 33 (5) This subdivision shall not be construed in a manner that line 34 would lessen the restrictions imposed on a local agency, or lessen line 35 the protections afforded to a housing development project, that are line 36 established by any other law, including any other part of this line 37 section.
line 38 (6) This subdivision shall not restrict the authority of a public line 39 agency or local agency to require mitigation measures to lessen line 40 the impacts of a housing development project under the California 93 — 37 — AB 1893
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line 1 Environmental Quality Act (Division 13 (commencing with Section line 2 21000) of the Public Resources Code).
line 3 (7) With respect to completed residential units for which the line 4 project approval process is complete and a certificate of occupancy line 5 has been issued, nothing in this subdivision shall limit the line 6 application of later enacted ordinances, policies, and standards line 7 that regulate the use and occupancy of those residential units, such line 8 as ordinances relating to rental housing inspection, rent line 9 stabilization, restrictions on short-term renting, and business line 10 licensing requirements for owners of rental housing. line 11 (8) (A) This subdivision shall apply to a housing development line 12 project that submits a preliminary application pursuant to Section line 13 65941.1 before January 1, 2030.
line 14 (B) This subdivision shall become inoperative on January 1, line 15 2034.
line 16 (p) (1) Upon any motion for an award of attorney’s fees line 17 pursuant to Section 1021.5 of the Code of Civil Procedure, in a line 18 case challenging a local agency’s approval of a housing line 19 development project, a court, in weighing whether a significant line 20 benefit has been conferred on the general public or a large class line 21 of persons and whether the necessity of private enforcement makes line 22 the award appropriate, shall give due weight to the degree to which line 23 the local agency’s approval furthers policies of this section, line 24 including, but not limited to, subdivisions (a), (b), and (c), the line 25 suitability of the site for a housing development, and the line 26 reasonableness of the decision of the local agency. It is the intent line 27 of the Legislature that attorney’s fees and costs shall rarely, if ever, line 28 be awarded if a local agency, acting in good faith, approved a line 29 housing development project that satisfies conditions established line 30 in subclauses (I), (II), and (III) of clause (i) of subparagraph (E) line 31 of paragraph (6) of subdivision (h) or clauses (i), (ii), and (iii) of line 32 subparagraph (F) of paragraph (6) of subdivision (h). line 33 (2) This subdivision shall become inoperative on January 1, line 34 2031.
line 35 (q) This section shall be known, and may be cited, as the line 36 Housing Accountability Act.
line 37 (r) The provisions of this section are severable. If any provision line 38 of this section or its application is held invalid, that invalidity shall line 39 not affect other provisions or applications that can be given effect line 40 without the invalid provision or application.
93 AB 1893 — 38 —
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line 1 SEC. 3. No reimbursement is required by this act pursuant to line 2 Section 6 of Article XIIIB of the California Constitution because line 3 a local agency or school district has the authority to levy service line 4 charges, fees, or assessments sufficient to pay for the program or line 5 level of service mandated by this act, within the meaning of Section line 6 17556 of the Government Code.
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AMENDED IN ASSEMBLY JUNE 13, 2024
AMENDED IN SENATE APRIL 25, 2024
AMENDED IN SENATE MARCH 19, 2024
SENATE BILL No. 1037
Introduced by Senator Wiener
(Coauthor: Assembly Member Wicks)
February 6, 2024
An act to add Section 65009.1 to the Government Code, relating to housing.
legislative counsel’s digest
SB 1037, as amended, Wiener. Planning and zoning: housing element:
enforcement.
Existing law, the Planning and Zoning Law, requires a city or county to adopt a general plan for land use development within its boundaries that includes, among other things, a housing element. The Planning and Zoning Law requires the Department of Housing and Community Development (HCD) to determine whether the housing element is in substantial compliance with specified provisions of that law. The Planning and Zoning Law requires HCD to notify a city, county, or city and county, and authorizes HCD to notify the office of the Attorney General, that the city, county, or city and county is in violation of state law if the local government has taken action in violation of specified provisions of law. The Planning and Zoning Law also requires, among other things, that an application for a housing development be subject to a specified streamlined, ministerial approval process if the development satisfies certain objective planning standards.
Revised 7-2-24—See last page. 96
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This bill, in any action brought by the Attorney General, on behalf of HCD or in an independent capacity, to enforce the adoption of housing element revisions, as specified, or to enforce any state law that requires a city, county, or local agency to ministerially approve any land use decision planning or permitting application for related to a housing development project, as specified, would subject the city, county, or local agency to specified remedies, including a civil penalty of, at minimum, $10,000 per month, and not exceeding $50,000 per month, for each violation, as specified. The bill would require that the penalties set forth in its provisions only apply when the local land use decisions or actions agency’s acts or omissions, as described, are arbitrary, capricious, or entirely lacking in evidentiary support, contrary to established public policy, unlawful, or procedurally unfair. The bill would require these civil penalties, as specified, to be deposited into the Building Homes and Jobs Trust Fund for the sole purpose of supporting the development of affordable housing located in the affected jurisdiction, except as provided, and would require that expenditure of any penalty moneys deposited into the fund under these provisions be subject to appropriation by the Legislature. In the event a city, county, or local agency fails to pay civil penalties imposed by the court, the bill would authorize the court to require the Controller to intercept any available state and local funds and direct those funds to the Building Homes and Jobs Trust Fund to correct the jurisdiction’s failure to pay, as specified.
The bill would make a related statement of legislative findings and declarations.
The bill would include findings that changes proposed by this bill address a matter of statewide concern rather than a municipal affair and, therefore, apply to all cities, including charter cities.
Vote: majority. Appropriation: no. Fiscal committee: yes.
State-mandated local program: no.
The people of the State of California do enact as follows:
line 1 SECTION 1. The Legislature finds and declares all of the line 2 following:
line 3 (a) California has a statewide housing shortage crisis. line 4 (b) California’s housing crisis stifles economic growth, line 5 contributes to the homelessness epidemic, consumes an line 6 ever-growing share of the paychecks of working families, and 96 SB 1037 — 2 —
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line 1 holds millions of households back from realizing the California line 2 dream of achieving housing security or home ownership. line 3 Conversely, new construction of residences, particularly line 4 multifamily homes, induces a chain of moves, ultimately adding line 5 more housing units affordable to middle- and low-income line 6 households.
line 7 (c) Restrictive zoning, land use planning, and burdensome line 8 residential permitting practices and policies, at the local level in line 9 particular, are a major cause of the shortfall between California’s line 10 housing needs and the available supply of housing. For example, line 11 despite the obligations of local governments under the Housing line 12 Element Law to update their general plans, including required line 13 rezoning for additional sites to address projected housing needs, line 14 numerous cities and counties continue to delay and, at times even line 15 refuse, to undertake required actions to encourage, promote, and line 16 facilitate the development of housing to accommodate the line 17 established regional housing need. The absence of updated housing line 18 elements that are substantially compliant with state law causes line 19 unnecessary uncertainty and delay in approving housing line 20 development applications. This cumulative delay causes many line 21 local governments to continue to fall behind in meeting their share line 22 of regional housing need.
line 23 (d) These restrictive practices and policies continue to persist line 24 despite other statewide reforms to expedite, streamline, and line 25 ministerially approve the planning and construction of housing of line 26 all types, including housing affordable to persons and families of line 27 lower income. While not exhaustive, these reforms can be found line 28 in the following provisions:
line 29 (1) Accessory dwelling units, as described in Sections 65852.150 line 30 and 65852.2 Chapter 13 (commencing with Section 66310) of line 31 Division 1 of Title 7 of the Government Code.
line 32 (2) By-right housing, in which certain multifamily housing is line 33 designated a permitted use, as described in Section 65589.4 of the line 34 Government Code.
line 35 (3) Reduced time for action on affordable housing applications line 36 under the approval of the development permits process, as line 37 described in Article 5 (commencing with Section 65950) of Chapter line 38 4.5 of Division 1 of Title 7 of the Government Code. line 39 (4) Streamlining housing approvals during a housing shortage, line 40 as described in Section 65913.4 of the Government Code. 96 — 3 — SB 1037
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line 1 (5) Streamlining agricultural employee housing development line 2 approvals, as described in Section 17021.8 of the Health and Safety line 3 Code.
line 4 (6) The Housing Crisis Act of 2019, as described in Chapter line 5 654 of the Statutes of 2019 (Senate Bill 330).
line 6 (7) Allowing four units to be built on single-family parcels line 7 statewide, as described in Chapter 162 of the Statutes of 2021 line 8 (Senate Bill 9).
line 9 (8) The Middle Class Housing Act of 2022, as described in line 10 Section 65852.24 of the Government Code.
line 11 (9) The Affordable Housing and High Road Jobs Act of 2022, line 12 as described in Chapter 4.1 (commencing with Section 65912.100) line 13 of Division 1 of Title 7 of the Government Code. line 14 (10) Housing element law requirements and required rezoning line 15 to address unmet housing needs, as described in Chapter 974 of line 16 the Statutes of 2018 (Senate Bill 828) and Chapter 358 of the line 17 Statutes of 2021 (Assembly Bill 1398).
line 18 SEC. 2. Section 65009.1 is added to the Government Code, to line 19 read:
line 20 65009.1. (a) In any action brought by the Attorney General, line 21 on behalf of the Department of Housing and Community line 22 Development or in an independent capacity, to enforce the adoption line 23 of housing element revisions pursuant to the schedule set forth in line 24 subdivision (e) of Section 65588, or to enforce any state law that line 25 requires a city, county, or local agency to ministerially approve, line 26 without discretionary review, any land use decision planning or line 27 permitting application for related to a housing development project, line 28 the city, county, or local agency shall be subject to the following line 29 remedies:
line 30 (1) A civil penalty of, at minimum, ten thousand dollars line 31 ($10,000) per month, and not exceeding fifty thousand dollars line 32 ($50,000) per month, for each violation, accrued from the date of line 33 the violation until the date the violation is cured. line 34 (2) (A) All costs of investigating and prosecuting this action, line 35 including expert fees, reasonable attorney’s fees, and costs, line 36 whenever the Attorney General prevails in a civil action to enforce line 37 any state laws under this section.
line 38 (B) Awards imposed pursuant to this paragraph shall be paid line 39 to the Public Rights Law Enforcement Special Fund established line 40 by Section 12530.
96 SB 1037 — 4 —
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line 1 (3) (A) Other relief as the court deems appropriate, including line 2 equitable and injunctive relief, provisional or otherwise. line 3 (B) Any injunction, provisional or otherwise, ordered by the line 4 court pursuant to this paragraph shall be deemed to be prohibitory, line 5 and not affirmative.
line 6 (b) The penalties set forth in this section shall only apply when line 7 the local land use decisions or actions agency’s acts or omissions line 8 described in subdivision (a) are arbitrary, capricious, entirely line 9 lacking in evidentiary support, contrary to established public policy, line 10 unlawful, or procedurally unfair. The purpose of this section is to line 11 ensure adequate remedies are available to ensure that state laws line 12 mandating streamlined, ministerial approvals related to housing line 13 development projects, and the timely adoption of housing element line 14 revisions, are promptly and faithfully followed. line 15 (c) (1) Any civil penalty levied pursuant to this section shall line 16 be deposited into the Building Homes and Jobs Trust Fund for the line 17 sole purpose of supporting the development of affordable housing line 18 located in the affected jurisdiction. Expenditure of any penalty line 19 moneys deposited into the Building Homes and Jobs Trust Fund line 20 pursuant to this subdivision shall be subject to appropriation by line 21 the Legislature.
line 22 (2) Any penalty imposed pursuant to this section shall not be line 23 paid out of funds already dedicated to affordable housing, line 24 including, but not limited to, very low, low-, and moderate-income line 25 households.
line 26 (3) To the extent permitted under the California Constitution, line 27 in the event a city, county, or local agency fails to pay civil line 28 penalties imposed by the court, the court may require the Controller line 29 to intercept any available state and local funds and direct those line 30 funds to the Building Homes and Jobs Trust Fund to correct the line 31 jurisdiction’s failure to pay.
line 32 (4) Notwithstanding paragraph (1), if the penalty moneys have line 33 not been expended five years after deposit, the penalty moneys line 34 may be used, upon appropriation, to finance newly constructed line 35 affordable housing units in the state without any geographic line 36 restrictions.
line 37 (d) The liability, penalties, and remedies imposed by this section line 38 are in addition to any other liability, penalties, and remedies line 39 imposed by any other law.
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line 1 (e) The remedies available to the Attorney General pursuant to line 2 this section do not limit or affect the remedies available to any line 3 other party seeking to enforce the laws enumerated in subdivision line 4 (j) of Section 65585, including, but not limited to, the remedies in line 5 Article 14 (commencing with Section 65750) of Chapter 3, and line 6 attorneys’ fees pursuant to Section 1021.5 of the Code of Civil line 7 Procedure.
line 8 SEC. 3. The Legislature finds and declares that the lack of line 9 housing is a matter of statewide concern and is not a municipal line 10 affair as that term is used in Section 5 of Article XI of the line 11 California Constitution. Therefore, the Legislature clarifies that line 12 Section 2 of this act adding Section 65009.1 to the Government line 13 Code applies to all cities, including charter cities. line 14
line 15
REVISIONS: line 16
Heading—Line 2. line 17
line 18
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96 SB 1037 — 6 —
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AMENDED IN SENATE JULY 3, 2024
AMENDED IN SENATE JUNE 17, 2024
AMENDED IN ASSEMBLY MARCH 19, 2024
california legislature—2023–24 regular session
ASSEMBLY BILL No. 2485
Introduced by Assembly Member Juan Carrillo
(Coauthors: Assembly Members Dixon, Joe Patterson, and
Quirk-Silva)
(Coauthors: Senators Glazer and Newman)
February 13, 2024
An act to amend Section Sections 65584 and 65584.01 of the Government Code, relating to housing.
legislative counsel’s digest
AB 2485, as amended, Juan Carrillo. Regional housing need:
determination.
The Planning and Zoning Law requires each county and city to adopt a comprehensive, long-term general plan for the physical development of the county or city, which includes, among other mandatory elements, a housing element. That law requires, for the 4th and subsequent revisions of the housing element, the Department of Housing and Community Development (department), in consultation with each council of governments, where applicable, to determine the existing and projected need for housing for each region, region, at least 2 years prior to the scheduled revision of the housing element, as specified.
That law requires the department’s determination to be based upon population projections produced by the Department of Finance and regional population forecasts developed by the council of governments
96 Item: 13
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and used for the preparation of the regional transportation plan, as specified. That law also requires the department to meet and consult with the council of governments regarding the assumptions and methodologies to be used to determine a region’s housing need and requires the council of governments to provide data assumptions from the council of governments’ projections, as specified. That law authorizes the department to accept or reject the information provided by the council of governments and, requires the department, after consultation with the council of governments, to make determinations on the data assumptions and the methodology the department will use to determine the region’s housing need, as specified. That law requires the department to provide its determinations to the council of governments, as specified.
This bill would for the 8th and subsequent revisions of the housing element require the department to convene and engage stakeholders to consider improvements to the process of determining the existing and projected housing need for each region before determining any region’s existing projected housing need. The bill would require the department department, prior to finalization of the regional determination, as specified, to publish on its the department’s internet website a summary of the information the department considered and determinations made by the department to improve the process of determining the existing and projected housing need for each region. The bill would additionally require the department to publish on its internet website the data sources, analyses, and methodology, including assumptions and factors used in and applied to the Department of Finance’s population projections and engagement process with the council of governments prior to finalization of the regional determination, as specified. The bill would also require the department, for the 7th and subsequent revisions of the housing element, to assemble and convene an advisory panel that includes, among others, a specified expert on described data to advise the department on the assumptions and methodology it will use to determine a region’s housing need. The bill would also require the department to consult with the advisory panel before making determinations on the data assumptions and the methodology it will use to determine the region’s housing need for the 7th and subsequent revisions of the housing element. determination. The bill would also additionally require the department to publish its determination determinations on the data assumptions and methodology it will use to determine a region’s housing need on its the department’s internet website.
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Vote: majority. Appropriation: no. Fiscal committee: yes.
State-mandated local program: no.
The people of the State of California do enact as follows:
line 1 SECTION 1. Section 65584 of the Government Code is line 2 amended to read:
line 3 65584. (a) (1) For the fourth and subsequent revisions of the line 4 housing element pursuant to Section 65588, the department shall line 5 determine the existing and projected need for housing for each line 6 region pursuant to this article. For purposes of subdivision (a) of line 7 Section 65583, the share of a city or county of the regional housing line 8 need shall include that share of the housing need of persons at all line 9 income levels within the area significantly affected by the general line 10 plan of the city or county.
line 11 (2) It is the intent of the Legislature that cities, counties, and line 12 cities and counties should undertake all necessary actions to line 13 encourage, promote, and facilitate the development of housing to line 14 accommodate the entire regional housing need, and reasonable line 15 actions should be taken by local and regional governments to line 16 ensure that future housing production meets, at a minimum, the line 17 regional housing need established for planning purposes. These line 18 actions shall include applicable reforms and incentives in Section line 19 65582.1.
line 20 (3) The Legislature finds and declares that insufficient housing line 21 in job centers hinders the state’s environmental quality and runs line 22 counter to the state’s environmental goals. In particular, when line 23 Californians seeking affordable housing are forced to drive longer line 24 distances to work, an increased amount of greenhouse gases and line 25 other pollutants is released and puts in jeopardy the achievement line 26 of the state’s climate goals, as established pursuant to Section line 27 38566 of the Health and Safety Code, and clean air goals. line 28 (b) (1) The department, in consultation with each council of line 29 governments, shall determine each region’s existing and projected line 30 housing need pursuant to Section 65584.01 at least two years prior line 31 to the scheduled revision required pursuant to Section 65588. The line 32 appropriate council of governments, or for cities and counties line 33 without a council of governments, the department, shall adopt a line 34 final regional housing need plan that allocates a share of the line 35 regional housing need to each city, county, or city and county at 96 — 3 — AB 2485
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line 1 least one year prior to the scheduled revision for the region required line 2 by Section 65588. The allocation plan prepared by a council of line 3 governments shall be prepared pursuant to Sections 65584.04 and line 4 65584.05.
line 5 (2) For the eighth and subsequent revisions of the housing line 6 element pursuant to Section 65588, the department shall convene line 7 and engage stakeholders, including demographers, data experts, line 8 and councils of governments, to consider improvements to the line 9 process of determining the existing and projected need for housing line 10 for each region, including to the accuracy and transparency of line 11 the assumptions and methodologies used to determine a region’s line 12 housing need. The department shall convene and engage line 13 stakeholders before determining any region’s existing and line 14 projected housing need pursuant to Section 65584.01. line 15 (c) Notwithstanding any other provision of law, the due dates line 16 for the determinations of the department or for the council of line 17 governments, respectively, regarding the regional housing need line 18 may be extended by the department by not more than 60 days if line 19 the extension will enable access to more recent critical population line 20 or housing data from a pending or recent release of the United line 21 States Census Bureau or the Department of Finance. If the due line 22 date for the determination of the department or the council of line 23 governments is extended for this reason, the department shall line 24 extend the corresponding housing element revision deadline line 25 pursuant to Section 65588 by not more than 60 days. line 26 (d) The regional housing needs allocation plan shall further all line 27 of the following objectives:
line 28 (1) Increasing the housing supply and the mix of housing types, line 29 tenure, and affordability in all cities and counties within the region line 30 in an equitable manner, which shall result in each jurisdiction line 31 receiving an allocation of units for low- and very low income line 32 households.
line 33 (2) Promoting infill development and socioeconomic equity, line 34 the protection of environmental and agricultural resources, the line 35 encouragement of efficient development patterns, and the line 36 achievement of the region’s greenhouse gas reductions targets line 37 provided by the State Air Resources Board pursuant to Section line 38 65080.
line 39 (3) Promoting an improved intraregional relationship between line 40 jobs and housing, including an improved balance between the 96 AB 2485 — 4 —
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line 1 number of low-wage jobs and the number of housing units line 2 affordable to low-wage workers in each jurisdiction. line 3 (4) Allocating a lower proportion of housing need to an income line 4 category when a jurisdiction already has a disproportionately high line 5 share of households in that income category, as compared to the line 6 countywide distribution of households in that category from the line 7 most recent American Community Survey.
line 8 (5) Affirmatively furthering fair housing.
line 9 (e) For purposes of this section, “affirmatively furthering fair line 10 housing” means taking meaningful actions, in addition to line 11 combating discrimination, that overcome patterns of segregation line 12 and foster inclusive communities free from barriers that restrict line 13 access to opportunity based on protected characteristics. line 14 Specifically, affirmatively furthering fair housing means taking line 15 meaningful actions that, taken together, address significant line 16 disparities in housing needs and in access to opportunity, replacing line 17 segregated living patterns with truly integrated and balanced living line 18 patterns, transforming racially and ethnically concentrated areas line 19 of poverty into areas of opportunity, and fostering and maintaining line 20 compliance with civil rights and fair housing laws. line 21 (f) For purposes of this section, “household income levels” are line 22 as determined by the department as of the most recent American line 23 Community Survey pursuant to the following code sections:
line 24 (1) Very low incomes as defined by Section 50105 of the Health line 25 and Safety Code.
line 26 (2) Lower incomes, as defined by Section 50079.5 of the Health line 27 and Safety Code.
line 28 (3) Moderate incomes, as defined by Section 50093 of the Health line 29 and Safety Code.
line 30 (4) Above moderate incomes are those exceeding the line 31 moderate-income level of Section 50093 of the Health and Safety line 32 Code.
line 33 (g) Notwithstanding any other provision of law, determinations line 34 made by the department, a council of governments, or a city or line 35 county pursuant to this section or Section 65584.01, 65584.02, line 36 65584.03, 65584.04, 65584.05, 65584.06, 65584.07, or 65584.08 line 37 are exempt from the California Environmental Quality Act line 38 (Division 13 (commencing with Section 21000) of the Public line 39 Resources Code).
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line 1 SECTION 1.
line 2 SEC. 2. Section 65584.01 of the Government Code is amended line 3 to read:
line 4 65584.01. For the fourth and subsequent revision of the housing line 5 element pursuant to Section 65588, the department, in consultation line 6 with each council of governments, where applicable, shall line 7 determine the existing and projected need for housing for each line 8 region in the following manner:
line 9 (a) (1) The department’s determination shall be based upon line 10 population projections produced by the Department of Finance line 11 and regional population forecasts used in preparing regional line 12 transportation plans, in consultation with each council of line 13 governments. If the total regional population forecast for the line 14 projection year, developed by the council of governments and used line 15 for the preparation of the regional transportation plan, is within a line 16 range of 1.5 percent of the total regional population forecast for line 17 the projection year by the Department of Finance, then the line 18 population forecast developed by the council of governments shall line 19 be the basis from which the department determines the existing line 20 and projected need for housing in the region. If the difference line 21 between the total population projected by the council of line 22 governments and the total population projected for the region by line 23 the Department of Finance is greater than 1.5 percent, then the line 24 department and the council of governments shall meet to discuss line 25 variances in methodology used for population projections and seek line 26 agreement on a population projection for the region to be used as line 27 a basis for determining the existing and projected housing need line 28 for the region. If agreement is not reached, then the population line 29 projection for the region shall be the population projection for the line 30 region prepared by the Department of Finance as may be modified line 31 by the department as a result of discussions with the council of line 32 governments.
line 33 (2) The department shall publish on its internet website the data line 34 sources, analyses, and methodology, including the assumptions line 35 and factors used in and applied to the Department of Finance line 36 projections and engagement process with the council of line 37 governments, and a summary of the information and line 38 determinations described in paragraph (2) of subdivision (b) of line 39 Section 65584, prior to finalization of the regional determination line 40 pursuant to subdivision (b).
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line 1 (b) (1) At least 26 months before the scheduled revision line 2 pursuant to Section 65588 and before developing the existing and line 3 projected housing need for a region, the department shall meet and line 4 consult with the council of governments regarding the assumptions line 5 and methodology to be used by the department to determine the line 6 region’s housing needs. The council of governments shall provide line 7 data assumptions from the council’s projections, including, if line 8 available, the following data for the region:
line 9 (A) Anticipated household growth associated with projected line 10 population increases.
line 11 (B) Household size data and trends in household size. line 12 (C) The percentage of households that are overcrowded and the line 13 overcrowding rate for a comparable housing market. For purposes line 14 of this subparagraph:
line 15 (i) The term “overcrowded” means more than one resident per line 16 room in each room in a dwelling.
line 17 (ii) The term “overcrowded rate for a comparable housing line 18 market” means that the overcrowding rate is no more than the line 19 average overcrowding rate in comparable regions throughout the line 20 nation, as determined by the council of governments. line 21 (D) The rate of household formation, or headship rates, based line 22 on age, gender, ethnicity, or other established demographic line 23 measures.
line 24 (E) The vacancy rates in existing housing stock, and the vacancy line 25 rates for healthy housing market functioning and regional mobility, line 26 as well as housing replacement needs. For purposes of this line 27 subparagraph, the vacancy rate for a healthy rental housing market line 28 shall be considered no less than 5 percent.
line 29 (F) Other characteristics of the composition of the projected line 30 population.
line 31 (G) The relationship between jobs and housing, including any line 32 imbalance between jobs and housing.
line 33 (H) The percentage of households that are cost burdened and line 34 the rate of housing cost burden for a healthy housing market. For line 35 the purposes of this subparagraph:
line 36 (i) The term “cost burdened” means the share of very low, low-, line 37 moderate-, and above moderate-income households that are paying line 38 more than 30 percent of household income on housing costs. line 39 (ii) The term “rate of housing cost burden for a healthy housing line 40 market” means that the rate of households that are cost burdened 96 — 7 — AB 2485
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line 1 is no more than the average rate of households that are cost line 2 burdened in comparable regions throughout the nation, as line 3 determined by the council of governments.
line 4 (I) The loss of units during a state of emergency that was line 5 declared by the Governor pursuant to the California Emergency line 6 Services Act (Chapter 7 (commencing with Section 8550) of line 7 Division 1 of Title 2), during the planning period immediately line 8 preceding the relevant revision pursuant to Section 65588 that line 9 have yet to be rebuilt or replaced at the time of the data request. line 10 (2) The department may accept or reject the information line 11 provided by the council of governments or modify its own line 12 assumptions or methodology based on this information. line 13 (3) For the seventh and subsequent revisions of the housing line 14 element pursuant to Section 65588, the department shall assemble line 15 and convene an advisory panel to advise the department on its line 16 assumptions and methodology it shall use. The panel shall be line 17 composed of all of the following:
line 18 (A) A United States Census Bureau-affiliated practitioner, who line 19 practices demography.
line 20 (B) A technical expert on the data described in subparagraphs line 21 (A) to (I), inclusive, of paragraph (1), who has a graduate degree line 22 in demography or a related field.
line 23 (C) A representative from the council of governments. line 24 (4) After
line 25 (2) The department may accept or reject the information line 26 provided by the council of governments or modify its own line 27 assumptions or methodology based on this information. After line 28 consultation with the council of governments and, for the seventh line 29 and subsequent revisions of the housing element pursuant to line 30 Section 65588, the advisory panel described in paragraph (3), line 31 governments, the department shall make determinations in writing line 32 on the assumptions for each of the factors listed in subparagraphs line 33 (A) to (I), inclusive, of paragraph (1) and the methodology it shall line 34 use and shall provide these determinations to the council of line 35 governments and publish these determinations on the department’s line 36 internet website. The methodology submitted by the department line 37 may make adjustments based on the region’s total projected line 38 households, which includes existing households as well as line 39 projected households.
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line 1 (c) (1) After consultation with the council of governments, the line 2 department shall make a determination of the region’s existing line 3 and projected housing need based upon the assumptions and line 4 methodology determined pursuant to subdivision (b). The region’s line 5 existing and projected housing need shall reflect the achievement line 6 of a feasible balance between jobs and housing within the region line 7 using the regional employment projections in the applicable line 8 regional transportation plan. Within 30 days following notice of line 9 the determination from the department, the council of governments line 10 may file an objection to the department’s determination of the line 11 region’s existing and projected housing need with the department. line 12 (2) The objection shall be based on and substantiate either of line 13 the following:
line 14 (A) The department failed to base its determination on the line 15 population projection for the region established pursuant to line 16 paragraph (1) of subdivision (a), and shall identify the population line 17 projection that the council of governments believes should instead line 18 be used for the determination and explain the basis for its rationale. line 19 (B) The regional housing need determined by the department line 20 is not a reasonable application of the methodology and assumptions line 21 determined pursuant to subdivision (b). The objection shall include line 22 a proposed alternative determination of its regional housing need line 23 based upon the determinations made in subdivision (b), including line 24 analysis of why the proposed alternative would be a more line 25 reasonable application of the methodology and assumptions line 26 determined pursuant to subdivision (b).
line 27 (3) If a council of governments files an objection pursuant to line 28 this subdivision and includes with the objection a proposed line 29 alternative determination of its regional housing need, it shall also line 30 include documentation of its basis for the alternative determination. line 31 Within 45 days of receiving an objection filed pursuant to this line 32 section, subdivision, the department shall consider the objection line 33 and make a final written determination of the region’s existing and line 34 projected housing need that includes an explanation of the line 35 information upon which the determination was made. line 36 (d) Statutory changes enacted after the date the department line 37 issued a final determination pursuant to this section shall not be a line 38 basis for a revision of the final determination.