CITY OF RANCHO CORDOVA
CITY COUNCIL MEETING
Monday, March 6, 2023
4:00 PM – Special Meeting/Closed Session
5:30 PM – Regular Meeting
David B. Roberts Council Chambers
City Hall
2729 Prospect Park Drive, Rancho Cordova
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Instructions to Make Public Comment
Submitting Public Comment via Email
Members of the public who wish to provide public comment via email will need to submit written comments to [email protected] no later than 2:00 p.m. on Monday, March 6, 2023.
Written comments received no later than 2:00 p.m. will be distributed to the Council, filed in the record, and will not be read aloud. All comments submitted later than 2:00 p.m. will be distributed to the Council.
Listening to a Zoom Meeting by Zoom Video Conference
To make a public comment using the Zoom platform, please use the “raise hand” feature at the bottom center of the screen. Please make sure to enable audio controls once access has been given by the City Clerk’s office to speak. Please wait to be called upon by the City Clerk.
Listening to a Zoom Meeting by Phone Only
Rancho Cordova City Council - AGENDA
Special and Regular Meeting of Monday, March 6, 2023
You can join a Zoom meeting via teleconferencing/audio conferencing using a cell phone or traditional landline phone. To request to make a public comment by phone press *9 to raise your hand. Please wait to be called upon by the City Clerk.
All public comments will be limited to three-minutes.
If you have questions related to the City Council Meeting or the use of Zoom, please contact the City Clerk’s Office at (916) 851-8720 before Monday, March 6, 2023, at 2:00 p.m.
AGENDA
1. SPECIAL MEETING - CALL TO ORDER/ROLL CALL
Council Members Garrett Gatewood, Siri Pulipati, David Sander, Donald Terry, and Mayor Linda Budge.
2. PUBLIC COMMENT
At a special meeting, citizens wishing to address the Council for any matter on the agenda may do so at the time the matter is discussed. Under the provisions of the California Government Code, the City Council is prohibited from discussing or taking action on any item not on the agenda.
3. ADJOURN TO CLOSED SESSION
Mayor Budge will adjourn the meeting to closed session.
4. CLOSED SESSION - CALL TO ORDER/ROLL CALL
Council Members Garrett Gatewood, Siri Pulipati, David Sander, Donald Terry, and Mayor Linda Budge
5. CLOSED SESSION
Council will meet in closed session to discuss the following item:
5.1. CONFERENCE WITH LEGAL COUNSEL - ANTICIPATED LITIGATION: Significant Exposure to Litigation Pursuant to Government Code Section 54956.9(d)(2) (One Case, relating to Notice and Alleged Default Under Development Agreement and 60-Day Period to Cure; Logisticenter Project at Corner of N. Mather Blvd. and Bear Hollow Drive from Arthur Coon, January 25, 2023).
6. OPEN SESSION - REPORT FROM CLOSED SESSION
The City Attorney will report on action taken in closed session.
7. ADJOURN TO REGULAR MEETING
Mayor Budge will adjourn to regular meeting.
8. REGULAR MEETING - CALL TO ORDER/ROLL CALL
Council Members Garrett Gatewood, Siri Pulipati, David Sander, Donald Terry, and Mayor Linda Budge
Rancho Cordova City Council - AGENDA
Special and Regular Meeting of Monday, March 6, 2023
9. METRO CABLE TV TELEVISION ANNOUNCEMENT
The Clerk will announce the meetings video recording and playback schedules.
10. PLEDGE OF ALLEGIANCE
The Mayor will call on someone in attendance to lead the Pledge.
11. INVOCATION
Jennifer Laret with The Church of Jesus Christ of Latter-day Saints will give the invocation.
12. PRESENTATIONS
12.1. Presentation of Proclamation in Recognition of Women's History Month.
13. PUBLIC COMMENT
Citizens wishing to address the Council for any matter not on the agenda may do so at this time via teleconference or by completing and submitting a Speaker Card to the City Clerk.
If you want to make a public comment via teleconference, please use the “raise hand” feature at the bottom center of the screen. If you are participating by telephone and you want to make a public comment, please press *9 to raise your hand. For those participating by Zoom or telephone, please wait to be called upon by the City Clerk.
For items on the agenda, speakers will be called by the Mayor at the point on the agenda when the item will be heard. Speakers are encouraged to keep comments to three minutes or less and to state name and community of residence.
Under the provisions of the California Government Code, the City Council is prohibited from discussing or taking immediate action on any item not on the agenda unless it can be demonstrated to be of an emergency nature or the need to take immediate action arose after the posting of the agenda.
14. COUNCIL REPORTS
15. CITY MANAGER'S REPORT
16. CONSENT CALENDAR ITEMS - ROLL CALL VOTE
16.1. Subject: Meeting Minutes from the Regular City Council Meeting of February 21, 2023 and the Special Meeting of February 28, 2023.
Recommendation: Adopt the Minutes.
16.2. Subject: A Resolution Authorizing the City Manager to Execute Construction Contract Amendment No. 2022-182-1 with B&M Builders, Inc. to Increase the Contract Amount from $268,685.00 to an Amount not to Exceed $492,240.71 for the Construction of the Kilgore and International Drainage Repair Project.
Recommendation: Adopt the Resolution.
16.3. Subject: A Resolution Authorizing the City Manager to Award Construction Contract No. 2023-31 in an Amount not to Exceed $1,994,006.00 with Central Valley Engineering for the White Rock Road - Sunrise Boulevard to Fitzgerald Road Project.
Recommendation: Adopt the Resolution.
Rancho Cordova City Council - AGENDA
Special and Regular Meeting of Monday, March 6, 2023
16.4. Subject: A Resolution Authorizing the City Manager to Execute Contract Amendment No. 2022-116-02 with California Inn and Suites to Increase the Contract Amount from $100,000 to an Amount not to Exceed $150,000 and to Extend the Contract Term from June 30, 2023, to June 30, 2024, for Housing Services.
Recommendation: Adopt the Resolution.
17. CONSENT PUBLIC HEARING ITEMS - ROLL CALL VOTE
18. PUBLIC HEARING ITEMS
18.1. Subject: Logisticenter at Rancho Cordova Major Design Review (CEQA Exempt Pursuant to Section 15183) - Project No. PLND-1021-0015.
Recommendation: There is no staff recommendation at this time.
Staff will be seeking additional direction from Council for this project. Staff requests that Council receive additional testimony, potentially close the public hearing, ask any questions, deliberate and provide staff sufficiently detailed direction to prepare documents for final action at the March 20, 2023, Council Meeting based upon Council direction.
19. REGULAR CALENDAR ITEMS
None.
20. COUNCIL REQUESTS FOR FUTURE AGENDA ITEMS
21. ADJOURNMENT
ADDITIONAL INFORMATION
Special Meetings listed below are subject to change/cancellation without further notice.
Unless the Council adopts a motion to extend the meeting, any item that is not initiated before 11:00 p.m. will be continued to the next day at 5:30 p.m. or scheduled on the next regular meeting agenda of the Council.
Public documents related to items on the open session portion of this agenda, which are distributed to the City Council less than 72 hours prior to the meeting, shall be available for public inspection at the time the documents are distributed to the Council. Documents are available for inspection at the City Clerk's office located in Rancho Cordova City Hall.
The agenda items are accessible on the City’s website at www.cityofranchocordova.org on Thursdays or Fridays prior to the Regular City Council Meeting.
UPCOMING MEETINGS
March 20, 2023 5:30 PM Regular Meeting
April 3, 2023 4:00 PM Special Meeting/Regular Meeting
April 11, 2023 5:30 PM Special Meeting/Work Session
April 17, 2023 5:30 PM Regular Meeting
Rancho Cordova City Council - AGENDA
Special and Regular Meeting of Monday, March 6, 2023
May 1, 2023 4:00 PM Special Meeting/Regular Meeting
May 15, 2023 5:30 PM Regular Meeting
May 23, 2023 5:30 PM Special Meeting/Work Session
June 5, 2023 4:00 PM Special Meeting/Regular meeting
If you have any technical questions related to the agenda items, please contact City Hall at (916) 851- 8700.
The Rancho Cordova City Council meeting will be videotaped in its entirety and will be cablecast without interruption on Metro Cable 14, the Government Affairs Channel on the Comcast, Consolidated Communications and AT&T U-Verse Systems. Closed Captioning will be available on the playback cablecast. A DVD copy is available from the City Clerk’s Department and a webcast of this meeting will be available for viewing via video streaming from the City’s website within 48 hours of adjournment of this meeting.
In compliance with the Americans with Disabilities Act, if you need a disability-related modification or accommodation, including auxiliary aids or services, to participate in this meeting, please contact the City Clerk’s Office at (916) 851-8720 at least 48 hours prior to the meeting.
CERTIFICATION OF POSTING OF AGENDA
I, Stacy Leitner, City Clerk for the City of Rancho Cordova, declare that the foregoing agenda for the March 6, 2023 Regular Meeting of the Rancho Cordova City Council was posted and available for review on March 2, 2023 at City Hall of the City of Rancho Cordova, 2729 Prospect Park Drive, Rancho Cordova, California, 95670. The agenda is also available on the city website at www.cityofranchocordova.org.
Signed March 2, 2023 at Rancho Cordova, California.
Stacy Leitner, CMC
City Clerk
ITEM 16.1
CITY OF RANCHO CORDOVA
CITY COUNCIL MEETING
Tuesday, February 21, 2023
5:30 PM – Regular Meeting
David B. Roberts Council Chambers
City Hall
2729 Prospect Park Drive, Rancho Cordova
Pursuant to California Assembly Bill 361 amending the Ralph M. Brown Act (Govt. Code 54950-54963), the City has declared a state of emergency relating to COVID-19 and imposed measures to promote social distancing.
DRAFT MINUTES
1. REGULAR MEETING - CALL TO ORDER/ROLL CALL
Mayor Budge called the Regular meeting to order in the David B. Roberts Council Chambers at 5:40 p.m.
Council Members Present: Garrett Gatewood, Siri Pulipati (arrived at 6:07 p.m.), David Sander, Donald Terry, and Mayor Linda Budge
Council Members Absent: None
Staff Members Present: Adam Lindgren, Stacy Leitner, Persephonie Riley. and Micah Runner
2. METRO CABLE TV TELEVISION ANNOUNCEMENT
The City Clerk read the meetings recordings and playback schedule.
3. PLEDGE OF ALLEGIANCE
Chief Dan M. Haverty led the pledge.
4. INVOCATION
Julie Steinbach of the United Methodist Church of Rancho Cordova gave the invocation.
5. PRESENTATIONS
5.1. New Employee Introductions: Katrina Colvig, Administrative Assistant I by Karin Hayden,
ITEM 16.1
Rancho Cordova City Council - MINUTES
Meeting of Tuesday, February 21, 2023
Administrative Assistant II and Haley Arata, Deputy City Clerk by Stacy Leitner, City Clerk.
6. PUBLIC COMMENT
Mayor Budge opened the public comment period. The following individuals addressed the Council or submitted public comment via email:
1. Dan M. Haverty
2. Frank Hall
3. Fayzah Mughal
4. James Garcia
5. Helen Whelan-Bashaw
6. Cathy Birch
7. Brenda Gustin
8. Fayzah Mughal
Mayor Budge closed the public comment period.
7. COUNCIL REPORTS
Council reported on events since the last meeting.
8. CITY MANAGER'S REPORT
City Manager Micah Runner gave his report.
8.1. Update on Assembly Bill 2449 Implementation.
The City Attorney and the City Clerk gave an update on Assembly Bill 2449 Implementation.
9. CONSENT CALENDAR ITEMS - ROLL CALL VOTE
Mayor Budge opened the public comment period. The following individuals addressed the Council or submitted public comment via email:
1. Angel Ball
Mayor Budge closed the public comment period.
ACTION: Motion to Approve items 9.1 through 9.10 including the correction to item 9.2 by Sander second by Gatewood;
Motion passed with a 5:0 vote.
9.1. Subject: Meeting Minutes from the Regular City Council Meeting of February 6, 2023.
Recommendation: Adopt the Minutes.
9.2. Subject: A Resolution Authorizing an Application to and Participation in the Prohousing Designation Program.
Recommendation: Adopt the Resolution.
9.3. Subject: A Resolution Authorizing Application for the Prohousing Incentive Pilot Program.
Recommendation: Adopt the Resolution.
9.4. Subject: A Resolution of the City Council of the City of Rancho Cordova Approving the
ITEM 16.1
Rancho Cordova City Council - MINUTES
Meeting of Tuesday, February 21, 2023
Final Map of Rio Del Oro Lot 66, Subdivision No. FM-2019-004-06 and Authorizing the City Manager to Execute Subdivision Improvement Agreement Contract No. 2023-04 With Alta Vista, LLC.
Recommendation: Adopt the Resolution.
9.5. Subject: A Resolution Authorizing the City Manager to Approve a Five-Year Contract for Janitorial Services and Maintenance for all Buildings Operated by the City with the Easter Seals Superior California for an Amount not to Exceed $1,275,000.
Recommendation: Adopt the Resolution.
9.6. Subject: A Resolution Authorizing the City Manager to Execute Construction Contract Amendment 2022-01-02 with FBD Vanguard Construction to Increase the Contract Amount from $884,964.56 to an Amount not to Exceed $1,023,340.16 for the Construction of the Cordova School Zones Project.
Recommendation: Adopt the Resolution.
9.7. Subject: A Resolution Authorizing the Public Works Director to Issue a Reimbursement to Lennar Homes of California, LLC in the Amount of $1,290,497 from the Storm Drainage Impact Fee Program.
Recommendation: Adopt the Resolution.
9.8. Subject: A Resolution Authorizing the City Manager to Execute Contract No. 2023-18 with Wood Rodgers, Inc. in an Amount not to Exceed $687,484 for Civil Engineering Design and Environmental Services for the Monier Circle Flood Control Basin Project.
Recommendation: Adopt the Resolution.
9.9. Subject: A Resolution Authorizing the City Manager to Approve the Third Amendment to a Contract with Shums Coda to Modify Exhibit B to Update the Billing Rates.
Recommendation: Adopt the Resolution.
9.10. Subject: A Resolution Authorizing the City Manager to Execute a Third Amendment to the Contract with Sytech Solutions to increase the amount from $95,000 to $345,000, extend the Term of Services, and update Billing Rates.
Recommendation: Adopt the Resolution.
10. CONSENT PUBLIC HEARING ITEMS - ROLL CALL VOTE
Mayor Budge opened the public comment period. Seeing no speakerS, Mayor Budge closed the public comment period.
ACTION: Motion to approve item 10.1 by Sander second by Terry; Motion passed with a 5:0 vote.
10.1. Subject: A Resolution Vacating a Public Utility Easement Pursuant to the Provisions of Chapter 3, Part 3 of Public Streets, Highways, and Service Easements Vacation Law Commencing at Section 8320 of the California Streets and Highways Code (Easton Research Park West).
Recommendation: Adopt the Resolution.
11. PUBLIC HEARING ITEMS
11.1. Subject: Logisticenter at Rancho Cordova Major Design Review - Project No. PLND- 1021-0015.
Recommendation: Continue to the March 6, 2023, City Council Meeting.
ITEM 16.1
Rancho Cordova City Council - MINUTES
Meeting of Tuesday, February 21, 2023
Mayor Budge opened the public comment period. The following individuals addressed the Council or submitted public comment via email:
1. Kate Carroll
2. James Garcia
3. Sara Malone
4. Mailyn Metzger
5. Paul Carroll
6. Levi Winegar
7. Eric Winegar
8. Ken Cooley
9. Barbara Kropacek
10. Nancy Lacoss
11. Jonathan Lacoss
12. Marilyn Metzger
13. Paul Carroll
14. Kate Carroll (2 Submissions)
15. Valerie Knippschild (3 Submissions)
16. Jennifer Garcia
17. James Garcia (2 Submissions)
18. Eric Winegar
Mayor Budge closed the public comment period.
ACTION: Motion to continue item 11.1 to the March 6, 2023, City Council Meeting by Gatewood second by Pulipati;
Motion passed with a 5:0 vote.
12. REGULAR CALENDAR ITEMS
12.1. Subject: Mills Crossing Project Update.
Recommendation: Receive presentation, provide feedback.
Mayor Budge opened the public comment period. The following individuals addressed the Council or submitted public comment via email:
1. James Garcia
2. Tera Kolvenbach
3. Helen Whelan-Bashaw
Mayor Budge closed the public comment period.
ACTION: Input was received regarding Mills Crossing Project Update.
12.2. Subject: Proposed Neighborhood Traffic Management Program, Phase VI.
Recommendation: Receive staff presentation and provide comments on the proposed Phase VI Neighborhood Traffic Management Program (NTMP).
Mayor Budge opened the public comment period. The following individuals addressed the Council or submitted public comment via email:
1. Valerie Knippschild
2. Helen Whelan-Bashaw
Mayor Budge closed the public comment period.
ITEM 16.1
Rancho Cordova City Council - MINUTES
Meeting of Tuesday, February 21, 2023
ACTION: Input was received regarding Proposed Neighborhood Traffic Management Program, Phase VI.
13. COUNCIL REQUESTS FOR FUTURE AGENDA ITEMS
None.
14. ADJOURN TO CLOSED SESSION
Mayor Budge adjourned the meeting to closed session at 8:10 p.m.
15. CLOSED SESSION - CALL TO ORDER/ROLL CALL
Mayor Budge called closed session to order at 8:10 p.m.
Council Members Present: Garrett Gatewood, Siri Pulipati, David Sander, Donald Terry, and Mayor Linda Budge
Council Members Absent: None
Staff Members Present: Adam Lindgren and Micah Runner
16. CLOSED SESSION
Council met in closed session to discuss the following item:
16.1. CONFERENCE WITH LEGAL COUNSEL - ANTICIPATED LITIGATION: Significant Exposure to Litigation Pursuant to Government Code Section 54956.9(d)(2) (One Case, relating to Notice and Alleged Default Under Development Agreement and 60-Day Period to Cure; Logisticenter Project at Corner of N. Mather Blvd. and Bear Hollow Drive from Arthur Coon, January 25, 2023).
17. OPEN SESSION - REPORT FROM CLOSED SESSION
City Attorney Adam Lindgren reported that staff was given direction, no reportable action was taken in closed session, and the Special meeting of February 22, 2023 would be cancelled.
18. ADJOURNMENT
Mayor Budge adjourned the meeting at 10:28 p.m.
_______________________
Stacy Leitner, CMC
City Clerk
ITEM 16.1.
CITY OF RANCHO CORDOVA
JOINT MEETING OF THE RANCHO CORDOVA CITY COUNCIL AND THE RANCHO
CORDOVA PLANNING COMMISSION
Tuesday, February 28, 2023
5:30 PM – Special Joint Meeting with Planning Commission/Work Session American River Room North
City Hall
2729 Prospect Park Drive, Rancho Cordova
Pursuant to California Assembly Bill 361 amending the Ralph M. Brown Act (Govt. Code 54950-54963), the City has declared a state of emergency relating to COVID-19 and imposed measures to promote social distancing.
DRAFT MINUTES
1. SPECIAL MEETING - CALL TO ORDER/ROLL CALL
Mayor Budge called the Special meeting to order in the American River North Room at 5:37 p.m.
Council Members Present: Garrett Gatewood, David Sander, Donald Terry, and Mayor Linda Budge
Council Members Absent: Siri Pulipati
Planning Commissioners Present: Surender Devarapalli, Sergio Diaz, Lee Frechette, Robert McGarvey, Cynthia Stauss, Leyroy Tripette, and Chair Anil Reddy Kondakrindi Staff Members Present: Haley Arata, Adam Lindgren, Stacy Leitner, Persephonie Riley, Micah Runner, and Kelly Whitman
2. PUBLIC COMMENT
Mayor Budge opened the public comment period. Seeing no speakers, Mayor Budge closed the public comment period.
3. SPECIAL MEETING
ITEM 16.1.
Rancho Cordova City Council - DRAFT MINUTES
Meeting of Tuesday, February 28, 2023
3.1. Subject: Updates Regarding Recent State Housing Laws and Legislation.
Recommendation: Receive presentation, provide feedback.
Mayor Budge opened the public comment period. The following individuals addressed the Council or submitted public comment via email:
1. Brenda Gustin
2. Mark Berry
3. Jim Garcia
Mayor Budge closed the public comment period.
ACTION: Input was received from Council and the Planning Commission regarding Recent State Housing Laws and Legislation.
4. ADJOURNMENT
Mayor Budge adjourned the meeting at 7:54 p.m.
__________________________
Stacy Leitner, CMC
City Clerk
MEMORANDUM
City Council Staff Report - Page 1 of 2
ITEM 16.2.
DATE: March 6, 2023
TO: Honorable Mayor and Council Members
FROM:
Albert Stricker, Public Works Director
Kristine Courdy, Senior Civil Engineer
Jesse Yabes, Assistant Civil Engineer
SUBJECT: A RESOLUTION AUTHORIZING THE CITY MANAGER TO EXECUTE CONSTRUCTION CONTRACT AMENDMENT NO. 2022-182-1 WITH
B&M BUILDERS, INC. TO INCREASE THE CONTRACT AMOUNT
FROM $268,685.00 TO AN AMOUNT NOT TO EXCEED $492,240.71
FOR THE CONSTRUCTION OF THE KILGORE AND
INTERNATIONAL DRAINAGE REPAIR PROJECT
RECOMMENDATION
Adopt the Resolution.
RESULT OF RECOMMENDED ACTION
Adoption of the Resolution would allow the City Manager to execute Construction Contract Amendment No. 2022-182-1 with B&M Builders, Inc., increasing the contract amount from $268,685.00 to an amount not to exceed $492,240.71 for the construction of the Kilgore and International Drainage Repair Project.
BACKGROUND
The Public Works department regularly evaluates the condition of the City's infrastructure. As part of that evaluation, it was determined that a 300-foot storm drain line made of 27-inch corrugated metal pipe on Kilgore Road near International Drive needed to be replaced due to perforations in the pipe which caused road settlement. The Kilgore and International Drainage Repair Project was scoped and designed to include trenching, removal of the damaged pipe, replacement with new pipe, backfilling and repairing the road.
The City Council awarded the Construction Contract No. 2022-182 on September 6, 2022, to B&M Builders, Inc. in the amount of $268,685.00 with construction beginning in October 2022.
Per the Rancho Cordova Municipal Code, Section 3.60.110 C, the City Manager is given the authority to approve change orders up to 10% of the contract value.
Upon initial excavation of the drainage pipe to be replaced, the Contractor encountered unstable soil which began sloughing within the trench. This resulted in a need for additional trench shoring, excavation and backfill which was in excess of the project scoped at the time of bid. This change order is for costs related to these unforeseen site soil conditions. This change
City Council Staff Report - Page 2 of 2
order is valued at $223,555.71, which exceeds the City Manager's signing authority, thus requiring City Council approval.
After negotiations with the Contractor, this final contract change order amount was deemed acceptable by City staff and therefore is recommended for approval by City Council.
FISCAL IMPACT AND FUNDING SOURCE
This project is funded by the Stormwater Enterprise Fund. This project is included in the City's current approved Capital Improvement Plan and in the FY 2021/2022 - 2022/2023 budget.
There is no impact to the City's General Fund.
ATTACHMENT(S)
1. Resolution
2. Contract No. 2022-182-1
ITEM 16.2. ATTACHMENT 1 Resolution No. XX-2023 Page 1 of 2
CITY OF RANCHO CORDOVA
RESOLUTION NO. XX-2023
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF RANCHO CORDOVA, STATE
OF CALIFORNIA, AUTHORIZING THE CITY MANAGER TO EXECUTE CONTRACT AMENDMENT NO. 2022-182-1 INCREASING THE CONTRACT AMOUNT FROM $268,685.00 TO AN AMOUNT NOT TO EXCEED $492,240.71 WITH B&M BUILDERS, INC. FOR THE
KILGORE AND INTERNATIONAL DRAINAGE REPAIR PROJECT
WHEREAS, the city solicited bids for the Kilgore & International Drainage Repair Project under the requirements of State Law and publicly opened bids on August 11, 2022; and WHEREAS, the lowest responsive and responsible bidder was B&M Builders, Inc.; and
WHEREAS, on September 6, 2022, the City Council awarded Construction Contract No. 2022-182 to B&M Builders, Inc. in the amount of $268,685.00; and WHEREAS, this Project replaces a defective 27-inch diameter corrugated metal drainage main and repairs settled roadway surface; and
WHEREAS, Construction Contract Amendment No. 2022-182-1 in the amount of $223,555.71 exceeds the City Manager's signing authority to approve; and
WHEREAS, funding for this Project will consist of the Stormwater Enterprise Fund; and WHEREAS, this Project was reviewed under the requirements of the California Environmental Quality Act (CEQA), and a notice of exemption was filed on August 17, 2022, with the County of Sacramento.
NOW, THEREFORE, BE IT HEREBY RESOLVED THE CITY COUNCIL OF THE CITY OF RANCHO CORDOVA authorizes the City Manager to execute Construction Contract Amendment No. 2022-182-1 in an amount of $223,555.71 with B&M Builders, Inc., increasing the contract amount from $268,685.00 to an amount not to exceed $492,240.71, for the construction of the Kilgore and International Drainage Repair Project.
PASSED AND ADOPTED by the City Council of the City of Rancho Cordova on the 6th day of March 2023 by the following vote:
AYES:
NOES:
ABSENT:
ABSTAIN:
ATTEST:
Linda Budge, Mayor
ITEM 16.2. ATTACHMENT 1 Resolution No. XX-2023 Page 2 of 2
Stacy Leitner, CMC
City Clerk
2729 Prospect Park Drive, Rancho Cordova, CA 95670 (916) 851-8700 Fax (916) 851-8787 www.cityofranchocordova.org Form 3.14A Contract Change Order (rev. 02-14-2011)
Project Name:
Kilgore/International Storm
Drain Repair
CITY OF RANCHO CORDOVA
Contract Change Order No. 1
Sheet 1 of 2
City Contract No. 2022-182-1
To: B&M Builders. You are hereby directed to make the herein described changes from the plans and specifications or do the following described work not included in the plans and specifications on this contract.
Description of work to be done, quantities and prices to be paid. Unless otherwise stated, rates for rental of equipment cover only such time as equipment is actually used and no allowance will be made for idle time.
Change requested by: Engineer
Extra Work at Agreed Lump Sum/Agreed Unit Price
1. PCO#01 – Traffic Loop Repair (Bid Item #10) is updated to install a video traffic detection unit on the SB approach to the Kilgore/International intersection, in place of traffic loop detectors. This is a no cost change.
2. PCO#02 – Rental Equipment – Contractor required the use of larger equipment, shoring, and traffic plates due to unstable trench soils.
Compensation for difference in rental cost at agreed lump sum.
3. PCO#03 – Pipe Purchase – City to purchase excess 64 LF of 30” Storm drain pipe resulting from the installation of a new manhole (PCO#4).
Payment for pipe at agreed lump sum.
4. PCO#04 - Manhole – Contractor is directed to install a 48” storm drain manhole just outside of the crosswalk on the SB approach. Payment for this work at agreed lump sum.
5. PCO#05 - Traffic Stripe – Contractor directed to remove and replace and additional 155 LF of traffic stripe. Payment for work at agreed lump sum.
6. Balancing Change Order – Adjustment based on quantities measured and placed in the field.
Extra Work at New Unit Price
7. PCO#06 – Backfill Unit Rate – Contractor is directed to remove unstable trench material and backfill the additional area with engineered fill. Cost for excavation, off haul, backfill, and compaction at agreed unit price. .
Extra Work at Force Account
8. Force Account DEWRS #1 - #7: Contractor encountered unstable trench walls, unknown buried structures, unmarked utilities, placed geotechnical fabric, and installed temporary pipe for storms during construction.
Payment for work at agreed force account.
INCREASE:
INCREASE:
INCREASE:
INCREASE:
INCREASE:
DECREASE:
INCREASE:
INCREASE:
$0.00
$45,536.33
$3,424.64
$28,244.98
$1,627.50
($22,492.00)
$127,179.00
$40,035.26
Total Cost of Change: $223,555.71
ITEM 16.2.
ATTACHMENT 2
2729 Prospect Park Drive, Rancho Cordova, CA 95670 (916) 851-8700 Fax (916) 851-8787 www.cityofranchocordova.org Form 3.14A Contract Change Order (rev. 02-14-2011)
By reason of this order the time of completion will be adjusted as follows: 16 non-compensatory working days Submitted by:
Construction Manager/Resident Engineer
City of Rancho Cordova Date:
Recommend
Approval by:
Project Manager
City of Rancho Cordova Date:
Approved by:
Public Works Director
City of Rancho Cordova Date:
We, the undersigned Contractor, have given careful consideration to the change proposed and all of its impacts, both direct and indirect, and hereby agree, if this proposal is approved, that we will provide all equipment, furnish all materials, except as may otherwise be noted above, and perform all services necessary for the work above specified, and will accept as full payment therefor the prices and time extensions shown above.
Acceptance Date:
_________________________
Contractor: ______________________________________
By: _____________________________________ Title: ______________________________________
If the Contractor does not sign acceptance of this order, his attention is directed to the requirements of the specifications as to proceeding with the ordered work and filing a written protest within the time therein specified.
Original
to:
Contractor
City Clerk
Copies
to:
Resident Engineer
City Project Manager
City Manager or Designee Date
City of Rancho Cordova
Project Name:
Kilgore/International Storm
Drain Repair
CITY OF RANCHO CORDOVA
Contract Change Order No. 1
Sheet 2 of 2
City Contract No.
2022-182-1
Authorization Resolution 56-2022 Contract Summation:
Original
Contract:
$268,685.00 Total Change Orders: $223,555.71 New Contract Cost Total: $492,240.71 ITEM 16.2.
ATTACHMENT 2
MEMORANDUM
City Council Staff Report - Page 1 of 2
ITEM 16.3.
DATE: March 6, 2023
TO: Honorable Mayor and Council Members
FROM: Albert Stricker, Public Works Director
Edgar Medina, Principal Engineer
SUBJECT: A RESOLUTION AUTHORIZING THE CITY MANAGER TO AWARD CONSTRUCTION CONTRACT NO. 2023-31 IN AN AMOUNT NOT TO
EXCEED $1,994,006.00 WITH CENTRAL VALLEY ENGINEERING
FOR THE WHITE ROCK ROAD - SUNRISE BOULEVARD TO
FITZGERALD ROAD PROJECT
RECOMMENDATION
Adopt the Resolution.
RESULT OF RECOMMENDED ACTION
Adoption of the Resolution would authorize the City Manager to execute Contract No. 2023-31 in an amount not to exceed $1,994,006.00 with Central Valley Engineering for the White Rock Road - Sunrise Boulevard to Fitzgerald Road Project.
BACKGROUND
The White Rock Road - Sunrise Boulevard to Fitzgerald Road Project is part of an innovative planning effort to alleviate regional congestion, improve roadway safety, nurture economic development, and promote the livability and quality of life in Rancho Cordova and the greater Sacramento region. Refer to Attachment 2 for the Project Location.
The road condition in this segment is very poor, which impedes safe and efficient transportation and freight movement, and economic growth. The project will improve approximately 0.25 mile of 4-lane White Rock Road by rehabilitating the deteriorating segment of roadway, installing a new traffic signal at Gold Valley, median, bike lanes, sidewalk curb ramps, storm drain lines and driveway improvements. This project will connect to the recent improvements on White Rock completed in late 2022 that, collectively, serve to support immediate growth, traffic volumes, parallel capacity and drive our economy.
Bids were solicited on the City’s Website, CIPList.com and the Sacramento, Placer and El Dorado County Builders Exchanges on January 5, 2023. Bids for the project were publicly opened on February 2, 2023. A total of seven bids were received and staff determined Central Valley Engineering & Asphalt, Inc. to be the lowest responsive and responsible bidder. The bid summary sheet is provided as Attachment 3.
City Council Staff Report - Page 2 of 2
The project was solicited with the Base Bid governing the low bid selection, though the project included Add Alternate 1 and Add Alternate 2 as part of the solicitation. Based on the bids received for all components of the solicitation, staff recommends including Add Alternate 1 & 2 and awarding a construction contract for the total bid amount of $1,994,006.00 to Central Valley Engineering & Asphalt, Inc.
On February 9, 2023, the City received a Bid Advisory notice from The Foundation for Fair Contracting regarding Central Valley Engineering & Asphalt, Inc. Based on review of this notice and the City’s prior history with the contractor, the City believes the contractor is responsive and responsible for the purposes of this project.
The tentative project schedule is to begin construction in Spring 2023 and end construction in Fall 2023.
FISCAL IMPACT AND FUNDING SOURCE
Funding for this project consists of Traffic Impact Mitigation Fees, Gas Tax, New Measure A Maintenance, Supplemental Transportation Fee and Capital Infrastructure Fund. There is no impact on the City’s General Fund.
This project is included in the City's current approved FY 2022-23 Capital Improvement Plan.
ATTACHMENT(S)
1. Resolution
2. Project Location
3. WRR Ph 1 Bid Summary
4. Contract No. 2023-31
ITEM 16.3. ATTACHMENT 1 Resolution No. XX-2023 Page 1 of 2
CITY OF RANCHO CORDOVA
RESOLUTION NO. XX-2023
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF RANCHO CORDOVA, STATE OF CALIFORNIA, AUTHORIZING THE CITY MANAGER TO EXECUTE CONTRACT NO. 2023-31 IN AN AMOUNT NOT TO EXCEED $1,994,006 WITH
CENTRAL VALLEY ENGINEERING & ASPHALT, INC FOR THE WHITE ROCK ROAD -
SUNRISE BOULEVARD TO FITZGERALD ROAD PROJECT
WHEREAS, the City solicited bids for the White Rock Road - Sunrise Boulevard to Fitzgerald Road Project under the requirements of state law and publicly opened bids on February 2, 2023; and
WHEREAS, the lowest responsive and responsible bidder is Central Valley Engineering & Asphalt, Inc.; and
WHEREAS, the Project will rehabilitate a deteriorating segment of roadway, add bike lanes, median, drainage facilities and traffic signals; and
WHEREAS, adoption of this Resolution will award construction Contract No. 2023-31 with Central Valley Engineering & Asphalt, Inc. in an amount not to exceed $1,994,006 for the White Rock Road - Sunrise Boulevard to Fitzgerald Road Project; and WHEREAS, on February 9, 2023, the City received a Bid Advisory Notice from The Foundation for Fair Contracting regarding Central Valley Engineering & Asphalt, Inc. Based on review of this notice and the City’s prior history with the contractor, the City believes the contractor is responsive and responsible for the purposes of this project; and WHEREAS, funding for this project consists of Traffic Impact Mitigation Fees, Gas Tax, New Measure A Maintenance, Supplemental Transportation Fee and Capital Infrastructure Fund. There is no impact to the City’s General Fund; and WHEREAS, this project was reviewed under the requirements of the California Environmental Quality Act and National Environmental Policy Act and Initial Study with Mitigated Negative Declaration/Environmental Assessment with Finding of No Significant Impact and Section 4(f) Evaluation was approved in January 2016 and re-validated in September, 2020.
NOW, THEREFORE, BE IT HEREBY RESOLVED THE CITY COUNCIL OF THE CITY OF RANCHO CORDOVA does authorize the City Manager to execute Contract No. 2023-31 in an amount not to exceed $1,994,006.00 with Central Valley Engineering & Asphalt, Inc. in a form approved by the City Attorney.
PASSED AND ADOPTED by the City Council of the City of Rancho Cordova on the 6th day of March 2023 by the following vote:
AYES:
NOES:
ITEM 16.3. ATTACHMENT 1 Resolution No. XX-2023 Page 2 of 2 ABSENT:
ABSTAIN:
ATTEST:
Linda Budge, Mayor
Stacy Leitner, CMC
City Clerk
NORTH
0.75 1.50
MILES
Base Map: ESRI Topographic
Project Phasing Map
5/6/2020
LEGEND
County Boundaries
City Boundaries
Class I, Existing
Class II, Existing
Class II, Proposed
Bikeways:
RANCHO CORDOVAPKWY
INTERNATIONALDR
RIO
DEL O
RO PK
WY
VILLAGIO DR
WHITE ROCK RDWHITE ROCK RD
50 RANCHO
CORDOVA
FOLSOM
SACRAMENTO COUNTY
FITZGERALD
RD
LUYUNG DRLUYUNG DR
SUNRISE BLVDSUNRISE BLVD
PRAIRIE CITY RDPRAIRIE CITY RD
Mather Mather
AirportAirport
SUNRISE BLVDSUNRISE BLVD
WHITE ROCK RDWHITE ROCK RD
EL DORADO COUNTY
SILVASILVA
VALLEYVALLEY
PKWYPKWY
SACRAMENTO
Folsom/El Dorado
County
“Eastern Section”
Construction
Completed 2022
County Segment
4-Lanes
Construction
Completed 2015GRANT LINE RDGRANT LINE RD
ITEM 16.3.
ATTACHMENT 2
ITEM 16.3.
ATTACHMENT 3
CONTRACT NO. 2023-31
5039694.3
Construction Services Agreement between March 6, 2023
City of Rancho Cordova and Central Valley Engineering & Asphalt, Inc. Page 1 of
CONSTRUCTION SERVICES AGREEMENT BETWEEN
THE CITY OF RANCHO CORDOVA AND CENTRAL VALLEY ENGINEERING & ASPHALT, INC.
FOR WHITE ROCK ROAD – SUNRISE BLVD TO FITZGERALD RD PROJECT TH
IS AGREEMENT made and entered into between the City of Rancho Cordova (“City”) and Central Valley Engineering & Asphalt, Inc. (“Contractor”) as of March 6th, 2023.
W
I T N E S S E T H:
W
HEREAS, the City Council for the City heretofore caused plans and specifications for WHITE ROCK ROAD – SUNRISE BLVD TO FITZGERALD RD PROJECT (“Project”) to be prepared, and therefore did approve and adopt said plans and specifications; and W
HEREAS, the City Coun cil for the City did cause to be published for the time and in the manner required by law, a notice inviting sealed bids for the performance of said work; and W
HEREAS, the City solicited bids in CIPList.com (“Notice), for the White Rock Road - Sunrise Boulevard to Fitzgerald Road Project under the requirements of state law and publicly opened bids on February 2, 2023; and
W
HEREAS, the Contractor, in response to such Notice, submitted to the City Council for the City within the time specified in said Notice, and in the manner provided for therein, a sealed bid for the performance of the Project specified in said plans and specifications, which said bid and proposal, and other bids and proposals submitted in response to said Notice, the City Council opened and canvassed in the manner provided by law; and W
HEREAS, the Contractor was the lowest responsible bidder for the performance o f said Project , and said City Council for the City as a result of the canvass of said bids, did determine and declare Contractor to be the lowest responsible bidder for said Project and award to a contract therefore.
NO
W THEREFORE , in consideration of t he promises herein, it is mutually agreed between the parties hereto as follows:
S
ection 1. CONT RACT DOCUMENTS . The following documents are by this reference incorporated in and made a part of this Agreement: The County of Sacramento, Standard Construction Specifications dated January 2016; the Special Provisions; the contract drawings, all addenda; the Notice to Contractors; the Proposal; all required bonds; and all supplemental Agreements covering alterations, amendments, or extensions to the contract . The documents which describe the work to be performed are sometimes collectively referred to herein as the Plans and Specifications.
S
ection 2. T ERM. The term of this Agreement shall begin on the date first noted above and shall end on June 30, 2025.
Section 3. SC OPE OF WORK. The Contractor will furnish all labor, materials, services, transportation, appliances, and mechanical workmanship required for Contract No. 2023-31, as provided for and set forth in said Plans and Specifications, or in either of them, which said Plans ITEM 16.3.
ATTACHMENT 4
CONTRACT NO. 2023-31
5039694.3
Construction Services Agreement between March 6, 2023
City of Rancho Cordova and Central Valley Engineering & Asphalt, Inc. Page 2 of 7 and Specifications are hereby referred and by such reference incorporated herein and made a part of this Agreement. All of the said work done under this Agreement shall be under the supervision of and performed to the satisfacti on of the Public Works Director of the City of Rancho Cordova who shall have the right to reject any and all materials and supplies furnished by the Contractor which do not comply with the Plans and Specifications, together with the right to require the Contractor to replace any and all work furnished by the Contractor which shall not either in workmanship or material be in strict accordance with the Plans and Specifications.
Section 4 . COMPLETION. Said work shall be completed and ready for acceptance.
Sect ion 5. PAYMENT. Attached hereto as Exhibit “A” and by reference made a part hereof, is the bid and proposal of Contractor. Said bid and proposal will contain, as required by the terms of said specifications, the full and complete schedule of the diff erent items with the lump sums or unit prices as so specified. The City agrees in consideration of the work to be performed for the Project herein and subject to the terms and conditions thereof, to pay Contractor all sums of money which may become due to Contractor in accordance with the terms of the aforesaid bid and proposal, and this Agreement, to wit : ONE MILLION NINE HUNDRED NINETY-FOUR THOUSAND SIX DOLLARS AND ZERO CENTS , ($1,994.006.00).
Said sum shall be paid in accordance with Section 8 of the Standard Specifications. With respect to that portion of the above sum as is based upon the estimated quantities specified for the general scope of the work to be performed herein, actual payment will be based upon the quantities as measured upon completion. No payment made under this Agreement shall be construed to be an acceptance of defective work or improper materials.
Section 6
. PREVAILING WAGES. To the extent required by law, Contractor and all of the Contractor’s subcontractors shall comply with California Health and Safety Code Section 33422.1 and shall comply with California Labor Code Section 1770 et seq. and all regulations adopted pursuant thereto (referred to herein as, “ Prevailing Wage Laws”), and be responsible for carrying out the requirements of such provisions. Pursuant to the provisions of Articles 1 and 2 of Chapter 1, Part 7, Division II, of the Labor Code of the State of California, not less than the general prevailing rate of per diem wages, and not less than the general prevailing rate of per diem wages for holidays and overtime work, for eac h craft, classification or type of worker needed to execute the Project contemplated under this Agreement shall be paid to all workers, laborers and mechanics employed in the execution of said Project by Contractor, or by any subcontractor doing or contracting to do any part of said Project. The appropriate determination of the Director of the California Department of Industrial Relations is filed with, and available for inspection at 2729 Prospect Park Drive, Rancho Cordova, CA 95670, the office of the C lerk of the City. Contractor shall post, at each job site, a copy of such prevailing rate of per diem wages as determined by the Director for the California Department of Industrial Relations. The Contractor shall, and hereby agrees to, unconditionally indemnify, reimburse, defend, protect and hold harmless the City and its elective and appointive boards, commissions, officers, agents, attorneys, consultants and employees, and all of their respective successors and assigns, from and against any and all claims, demands, suits and actions at law or in equity, and losses, liabilities, expenses, penalties, fines, orders, judgments, injunctive or other relief, and costs and damages of every kind, nature and description (including but not limited to attorneys’ fees a nd court costs; with counsel reasonably acceptable to the City), and administrative, enforcement or judicial proceedings, whether known or unknown, and which directly or indirectly, in whole or in part, are caused by, arise from, or relate to, or are alleg ed to be caused by, arise from, or relate to, the payment or requirement of payment of prevailing wages or the requirement of competitive bidding in the construction of the Project, the failure to ITEM 16.3.
ATTACHMENT 4
CONTRACT NO. 2023-31
5039694.3
Construction Services Agreement between March 6, 2023
City of Rancho Cordova and Central Valley Engineering & Asphalt, Inc. Page 3 of 7 comply with any state or federal labor laws, regulations or standards in connection with this Agreement, including but not limited to California Labor Code Section 1770 et seq. and the Prevailing Wage Laws, or any act or omission of the City or the Contractor related to this Agreement with respect to the payment o r requirement of payment of prevailing wages or the requirement of competitive bidding, whether or not any insurance policies shall have been determined to be applicable to any such claims, demands, suits, actions, losses, liabilities, expenses, penalt ies, fines, orders, judgments, injunctive or other relief, costs, damages, or administrative, enforcement or judicial proceedings. It is further agreed that the City does not, and shall not, waive any rights against the Contractor which they may have by r eason of this indemnity and hold harmless agreement because of the acceptance by the City, or the deposit with the City by the Contractor, of any of the insurance policies described in this Agreement.
Section 7
. INSURANCE. The Contractor shall carry and maintain for the duration of the term of this Agreement, such public liability, property damage and contractual liability, auto, worker’s compensation and builders’ risk insurance as required by the specifications.
Section 8 . WORKERS’ COMPENSATION CERTIFI CATION. By execution of this Agreement, the Contractor certifies as follows:
“I am aware of the provisions of Section 3700 of the Labor Code which r equire every employer to be insured against liability for workers’ compensation or to undertake self-insurance in accordance with the provisions of that code, and I will comply with such provisions before commencing the performance of the work of this contract.”
Section 9 . PERFORMANCE AND PAYMENT BONDS . The Contractor shall, before beginning said work for the P roject, file two (2) bonds with the City, each made payable to the City. These bonds shall be issued by a surety company authorized to do business in the State of California and shall be maintained during the entire life of the Agreement at the expense of the Contractor. One bond shall be in the amount of one hundred percent (100%) of the Agreement and shall guarantee the faithful performance of the Agreement. The second bond shall be the payment bond required by California Civil Code Section 3247 et seq. and shall be in the amount of one hundred percent (100%) of the Agreement. Any alterations made in the specifications which are a part of this Agreement or in any provision of this Agreement shall not operate to release any surety from liability on any bond required hereunder and the consent to make such alterations is hereby given, and any surety on said bonds hereby waives the provisions of California Civil Code Sections 2819 and 2845.
Section 10.
INDEMNIFICATION.
10.1 C ontractor’s Performance. Co ntractor shall indemnify, defend with counsel selected by the City, and hold harmless City, its officers, agents, employees and representatives from and against any and all claims, losses, liabilities or damages, demands and actions, including payment of r easonable attorney’s fees, arising out of or resulting from Services performed pursuant to this Agreement caused in whole or in part by any negligent or willful act or omission of Contractor, its officers, agents, employees, or anyone directly or indirectly acting on behalf of Contractor. The foregoing obligation of Contractor shall not apply when (1) the injury, loss of life, damage to property, or violation of law arises wholly from the negligence or willful misconduct of the City or its officers, employees, agents, or volunteers and (2) the actions of Contractor or its employees, subcontractor, or agents have contributed in no part to the injury, ITEM 16.3.
ATTACHMENT 4
CONTRACT NO. 2023-31
5039694.3
Construction Services Agreement between March 6, 2023
City of Rancho Cordova and Central Valley Engineering & Asphalt, Inc. Page 4 of 7 loss of life, damage to property, or violation of law. It is understood that the duty of Contractor to indemnify and hold harmless includes the duty to defend as set forth in Section 2778 of the California Civil Code. Acceptance by City of insurance certificates and endorsements required under this Agreement does not relieve Contractor from liability under this indemnification and hold harmless clause. This indemnification and hold harmless clause shall apply to any damages or claims for damages whether or not such insurance policies shall have been determined to apply. By execution of this Agreement, Con tractor acknowledges and agrees to the provisions of this Section and that it is a material element of consideration.
10.2 P
ERS Indemnification. In the event that Contractor or any employee, agent, or subcontractor of Contractor providing Services under t his Ag reement is determined by a court of competent jurisdiction of the California Public Employees Retirement System (“PERS”) to be eligible for enrollment in PERS as an employee of City, Contractor shall indemnify, defend, and hold harmless City for the payment of any and all employee and/or employer contributions for PERS benefits on behalf of Contractor or its employees, agents, or subcontractors, as well as for the payment of any penalties and interest on such contributions, which would otherwise be the resp onsibility of City, and any attorneys’ fees and costs incurred by the City to enforce this Section.
10.3 No Limitation of Liability for Indemnification. The indemnities set forth in this Section shall not be limited by the insurance requirements s et for th in the Contract.
Section 11. Nondiscrimination and Equal Opportunity. Contractor shall not discriminate, on the basis of a person’s race, religion, color, national origin, age, physical or mental handicap or disability, medical condition, marital s tatus, sex, or sexual orientation, against any employee, applicant for employment, subcontractor, bidder for a subcontract, or participant in, recipient of, or applicant for any services or programs provided by Contractor under this Agreement.
Contractor shall comply with all applicable federal, state, and local laws, policies, rules, and requirements related to equal opportunity and nondiscrimination in employment, contracting, and the provision of any services that are the subject of this Agreement, including but not limited to the satisfaction of any positive obligations required of Contractor thereby. Contractor shall include the provisions of this section in any subcontract approved by the City.
Section 12. A
MENDMENTS. No modification or amendment o f this Agreement is effective unless made in writing and signed by both the City and Contractor.
Section 13. A
SSIGNMENT AND SUBCONTRACTING. Contractor shall not assign or transfer any interest in this Agreement without the prior written consent of the City.
Section 14. M ISCELLANEOUS PROVISIONS.
14.1 S uccessors. This Agreement shall bind and inure to the heirs, devisees, assignees, and successors in interest of Contractor and to the successors in interest of Contractor in the same manner as if such parties had been expressly named herein. All times stated herein or in the contract documents are of the essence hereof. As used in this instrument the singular includes the plural, and the masculine includes the feminine and the neuter. This Agreement may create ITEM 16.3.
ATTACHMENT 4
CONTRACT NO. 2023-31
5039694.3
Construction Services Agreement between March 6, 2023
City of Rancho Cordova and Central Valley Engineering & Asphalt, Inc. Page 5 of 7 a possessory interest subject to property taxation, and Contractor may be subject to the payment of property taxes levied on such interest.
14.2 C ontract Administration. This Agreement shall be administered by Edgar Medina ("Contract Administrator"). All correspondence shall be directed to or through the Contract Administrator or his or her designee.
14.3 Notices. Any written notice to Consultant shall be sent to:
James Castle CFO/Secretary
Central Valley Engineering & Asphalt, Inc.
216 Kenroy Lane
Roseville, Ca. 95678
[Email Address (used for insurance update requests)]
[email protected]
Any written notice to City shall be sent to:
Edgar Medina
City of Rancho Cordova
Department of Public Works
2729 Prospect Park Drive
Rancho Cordova, CA 95670
[email protected]
14.4 I RS Form W -9. Contractor shall complete and submit Internal Revenue Service Form W -9 to the City before execution of this Agreement. The City’s Finance Director shall have authority to waive this requirement.
14.5 G overning Law and Venue. The laws of the State of California shall govern this Agreement. Venue for any action regarding this Agreement shall be in the Superior Court of the County of Sacramento or in the United States District Court for the Eastern District of California.
14.6 A ttorneys’ Fees . If a Party to this Agreement brings any action, in cluding an action for declaratory relief, to enforce or interpret the provisions of this Agreement, the prevailing Party shall be entitled to reasonable attorneys’ fees in addition to any other relief to which that Party may be entitled. The court may set such fees in the same action or in a separate action brought for that purpose.
14.7 S everability . If a court of competent jurisdiction finds or rules that any provision of this Agreement is invalid, void, or unenforceable, the provisions of this Agreement not so adjudged shall remain in full force and effect. The invalidity in whole or in part of any provision of this Agreement shall not void or affect the validity of any other provision of this Agreement.
14.8 N
o Implied Waiver of Breach. The waiver of any breach of a specific provision of this Agreement does not constitute a waiver of any other breach of that term or any other term of this Agreement.
14.9 S urvival. The obligations of this Agreement, which by their nature would continue beyond the term or expiration of this Agreement, including without ITEM 16.3.
ATTACHMENT 4
CONTRACT NO. 2023-31
5039694.3
Construction Services Agreement between March 6, 2023
City of Rancho Cordova and Central Valley Engineering & Asphalt, Inc. Page 6 of 7 limitation obligations regarding indemnification shall survive the term or expiration of this Agreement.
14.10 E ntire Agreement . This Agreement, including the terms of payment attached hereto and incorporated herein as Exhibit A , and the Contract Documents as referenced above in Section 1, of this Agreement, represents the entire and integrated Agreement between City and Contractor and supersedes all prior negotiations, representations, and Agr eements r egarding the subject matter of this Agreement, either written or oral.
IN WITNESS WHEREOF, the City Council and Contractor have caused this Agreement to be executed as of the day and year first above written.
CITY OF RANCHO CORDOVA: CONTRACTOR:
Micah Runner, City Manager James Castle, CFO/Secretary
______
Date Date
Attest:
Stacy Leitner, CMC, City Clerk
Date
Approved as to Form:
Adam U. Lindgren, City Attorney
Date
Last revised June 23, 2022
ITEM 16.3.
ATTACHMENT 4
CONTRACT NO. 2023-31
5039694.3
Construction Services Agreement between March 6, 2023
City of Rancho Cordova and Central Valley Engineering & Asphalt, Inc. Page 7 of 7
Exhibit A
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MEMORANDUM
City Council Staff Report - Page 1 of 1
ITEM 16.4.
DATE: March 6, 2023
TO: Honorable Mayor and Council Members
FROM: Russell Ducharme, Neighborhood Services Manager
SUBJECT: A RESOLUTION AUTHORIZING THE CITY MANAGER TO EXECUTE CONTRACT AMENDMENT NO. 2022-116-02 WITH CALIFORNIA INN
AND SUITES TO INCREASE THE CONTRACT AMOUNT FROM
$100,000 TO AN AMOUNT NOT TO EXCEED $150,000 AND TO
EXTEND THE CONTRACT TERM FROM JUNE 30, 2023, TO JUNE 30, 2024, FOR HOUSING SERVICES
RECOMMENDATION
Adopt the Resolution.
RESULT OF RECOMMENDED ACTION
Adoption of the Resolution would authorize the City Manager to execute Contract Amendment No. 2022-116-02 for additional housing services with California Inn and Suites to extend the contract term from June 30, 2023, to June 30, 2024, which results in increasing the contract amount from $100,000 to an amount not to exceed of $150,000 for housing services.
BACKGROUND
The City entered into a Professional Services Agreement with California Inn & Suites dated July 6, 2022, in the amount of $25,000 to provide temporary housing for the homeless, displaced residents, and those in transition between drug and alcohol rehab and/or other housing services. A First Amendment was approved on October 1, 2022, increasing the total compensation to $100,000. This Second Amendment will increase the total compensation to an amount not to exceed $150,000 and extend the term through June 30, 2024.
FISCAL IMPACT AND FUNDING SOURCE
Funded through the Community Enhancement and Investment Fund.
ATTACHMENT(S)
1. Resolution
2. Draft Second Amendment California Inn and Suites
ITEM 16.4. ATTACHMENT 1 Resolution No. XX-2023 Page 1 of 1
CITY OF RANCHO CORDOVA
RESOLUTION NO. XX-2023
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF RANCHO CORDOVA, STATE
OF CALIFORNIA, AUTHORIZING THE CITY MANAGER TO EXECUTE A SECOND
AMENDMENT TO THE HOUSING SERVICES AGREEMENT WITH CALIFORNIA INN & SUITES
WHEREAS, the City and California Inn & Suites entered into a Professional Services Agreement (“PSA”) dated July 6, 2022, for an amount not to exceed $25,000 for the purpose of providing temporary housing for the homeless, displaced residents, and those in transition between drug and alcohol rehab; and those in transition between drug and alcohol rehab; and
WHEREAS, a First Amendment was approved on October 1, 2022 and increased the compensation by $75,000 to an amount not to exceed $100,000; and
WHEREAS, this second amendment will increase the compensation by $50,000 to an amount not to exceed $150,000 and extend through June 30, 2024; and
WHEREAS, the Parties agree that changes to the term and services provided for in the PSA are necessary in order for the City to continue receiving services by Professional.
NOW, THEREFORE, BE IT HEREBY RESOLVED THE CITY COUNCIL OF THE CITY OF RANCHO CORDOVA authorizes the City Manager to execute the Second Amendment to the contract with California Inn & Suites.
PASSED AND ADOPTED by the City Council of the City of Rancho Cordova on the 6th day of March 2023 by the following vote:
AYES:
NOES:
ABSENT:
ABSTAIN:
ATTEST:
Linda Budge, Mayor
Stacy Leitner, CMC
City Clerk
ITEM 16.4. ATTACHMENT 2
CONTRACT NO. 2022-116-2
Second Amendment to Housing Services Agreement between Page 1 of 3 City of Rancho Cordova and California Inn & Suites
SECOND AMENDMENT TO THE HOUSING SERVICES AGREEMENT
BETWEEN THE CITY OF RANCHO CORDOVA AND
CALIFORNIA INN & SUITES
This Second Amendment to the Agreement for Professional Services (“Amendment”) is made by and between the City of Rancho Cordova (“City”) and California Inn & Suites (“Professional”) as of March 6, 2023 City and Professional are hereinafter collectively referred to as the "Parties."
RECITALS
WHEREAS, the Parties entered into a Professional Services Agreement (“PSA” or “Agreement”) dated July 6, 2022 for the purpose of providing temporary housing for the homeless, displaced residents, and those in transition between drug and alcohol rehab (“Original Agreement”); and
WHEREAS, the Parties previously entered into a First Amendment to increase the total cost of this Agreement by $75,000, for a total not-to-exceed cost of $100,000.
WHEREAS, this Amendment will increase the compensation by $50,000 and extend the contract through June 30, 2024; and
WHEREAS, the Parties agree that changes to the term and services provided for in the PSA are necessary in order for the City to continue receiving services by Professional.
NOW, THEREFORE, the Parties hereto agree as follows:
AGREEMENT
1. Section 2 of the PSA, “Compensation,” provides for the City to pay Professional a sum not to exceed $25,000. The First Amendment to this Agreement amended Section 2 to provide for a sum not to exceed $100,000. The Parties agree to further amend Section 2 of the PSA in order to increase the compensation amount to pay Professional for additional services. The first sentence of Section 2 of the PSA is amended to read as follows:
"City hereby agrees to pay Professional a sum not to exceed One Hundred Fifty Thousand Dollars ($150,000), notwithstanding any contrary indication that may be contained in Professional’s proposal, for services to be performed and reimbursable costs incurred under this Agreement.”
2. Section 1.1 of the PSA, “Term of Services,” states that “The term of this Agreement shall begin on the date first noted above and shall end on June 30, 2023, the date of completion of the Agreement. Professional shall provide the services described in Exhibit A prior to the end date, unless the term of the Agreement is otherwise terminated or extended, as provided for in Section
8. The time provided to Professional to complete the services required by this Agreement shall not affect the City’s right to terminate the Agreement, as provided for in Section 8.” The Parties agree
ITEM 16.4. ATTACHMENT 2
CONTRACT NO. 2022-116-2
Second Amendment to Housing Services Agreement between Page 2 of 3 City of Rancho Cordova and California Inn & Suites
to an extension of the PSA in accordance with Section 8.2, to provide for an additional one (1) year of professional services, ending on June 30, 2024.
3. This Amendment shall form part of the Original Agreement. Except to the extent otherwise amended in this Amendment, all other terms and conditions of the Original Agreement shall remain the same, provided that in the event of a conflict between the provisions of this Amendment and those of the balance of the Original Agreement or First Amendment, the terms and provisions of this Amendment shall supersede those provisions of the balance of the Original Agreement and First Amendment with which they conflict.
4. The signatures of the Parties to this Amendment may be executed and acknowledged on separate pages or in counterparts which, when attached to this Amendment, shall constitute one complete Amendment.
5.Contract Administration. This Agreement shall be administered by Russ Ducharme, Neighborhood Services Manager ("Contract Administrator"). All correspondence shall be directed to or through the Contract Administrator or his or her designee.
Notices. Any written notice to Professional shall be sent to:
Nayem Islam
10800 Olson Drive
Rancho Cordova, CA 95670
Email Address (for Insurance Update Requests):
[email protected]
Any written notice to City shall be sent to:
Russ Ducharme
Neighborhood Service
2880 Gold Tailings
Rancho Cordova, CA 95670
[email protected]
IN WITNESS WHEREOF, the Parties have executed this Amendment on the day and year first above written.
CITY OF RANCHO CORDOVA PROFESSIONAL
____________________________ ______________________________ Micah Runner, City ManagerNayem Islam, General Manager
Date:__________________ Date:__________________
Attest:
ITEM 16.4. ATTACHMENT 2
CONTRACT NO. 2022-116-2
Second Amendment to Housing Services Agreement between Page 3 of 3 City of Rancho Cordova and California Inn & Suites
____________________________
Stacy Leitner, CMC, City Clerk
Date:__________________
Approved as to Form:
____________________________
Adam U. Lindgren, City Attorney
Date:__________________
5297334.1
City Council Staff Report – Page 1 of 8
MEMORANDUM
ITEM 18.1.
DATE:March 6, 2023
TO:Honorable Mayor and Council Members
FROM:Nicholas Sosa, Associate Planner
SUBJECT: LOGISTICENTER AT RANCHO CORDOVA MAJOR DESIGN REVIEW (CEQA EXEMPT PURSUANT TO SECTION 15183)– PROJECT NO. PLND-1021-0015 PROPERTY OWNER:
DPML Bear Hollow, LLC
5500 Equity Avenue
Reno, NV 89502
APPLICANT/DEVELOPER:
Dermody Properties
George Condon
5500 Equity Avenue
Reno, NV 89502
PROJECT: Logisticenter at Rancho Cordova – Major Design Review FILE: PLND-1021-0015
LOCATION: Corner of Bear Hollow Drive and N. Mather Boulevard APN: 072-2360-041-0000
PLANNER: Nicholas Sosa, Associate Planner
RECOMMENDATION
There is no staff recommendation at this time.
Staff will be seeking additional direction from Council for this project. Staff requests that the Council receive additional testimony, potentially close the public hearing, ask any questions, deliberate, and provide staff sufficiently detailed direction to prepare documents for final action at the March 20, 2023, Council Meeting based upon Council direction.
PROJECT BACKGROUND
The project was most recently presented on January 17, 2023, at the regularly scheduled City Council meeting. At the meeting, the applicant presented modifications to the landscape plan and elevations since the December 5, 2022, meeting, as well as provided updated visual renderings. Staff presented a list of additional requests made by the community that the applicant was agreeable to that could become conditions of approval for the project. Council requested the project be continued to the February 6, 2023, Council meeting. However, staff needed additional time to respond to legal letters and resident comments and continued the item until the March 6, 2023, meeting.
City Council Staff Report – Page 2 of 8
As part of this package, staff will be providing a response to legal letters received by attorneys from both the Stone Creek residents and the applicant as well as updated responses to the previously created Frequently Asked Questions (FAQ) sheet for Logisticenter.
There have been no additional modifications to the project site plan, conditions of approval, or building design since the project’s most recent presentation on January 17, 2023.
Resident Frequently Asked Questions Updates
The application was originally submitted in October of 2021. Over the course of the Council deliberations on the project, both staff and City Council have received voluminous correspondence from the community with inquiries on the details of the project, the status of review, and the standards and regulations applicable, as well as correspondence voicing direct opposition to the project. Many of the questions presented by the community were similar or overlapped other questions that City staff have received from other community members.
Therefore, in an effort to provide a response to all community members that is consistent and available to everyone, staff created a Frequently Asked Questions (FAQ) sheet that addresses a majority of the common questions received. A similar FAQ sheet was included in the Council package when the item was taken to City Council on December 5, 2022.
Since the December 5, 2022, Council meeting, staff has updated the FAQ sheet to address new issues raised in correspondence from community members by direct email, through public comment at Council meetings, and through emails to Council Members forwarded to staff.
The FAQ sheet does not answer certain questions that require a final discretionary determination by the Council.
The topics that have been addressed within the revised FAQ sheet include:
•Particulate Matter Analysis
•Truck Parking on Public Rights-of-Way
•Environmental Questionnaire Requirements
•The Annual Review of the Development Agreement
The revised FAQ sheet is Attachment 3 to this staff report.
Additional Conditions of Approval
At the January 17, 2023, City Council meeting, staff presented a list of community requests and the Developer’s response to those requests, including:
•Limiting hours of operation
•Requiring a sound wall at the end of Debina Court
•No parking on N. Mather
•Additional clean energy building details and infrastructure on-site (e.g. skylights, EV charging, bike lockers, solar panels, LEED certification, etc.) The Applicant has reviewed these community requests and has agreed to a majority of them with the exception of obtaining LEED certification and truck parking on N. Mather, which has already received added signage by city staff to state “No Truck Parking.” As part of this project,
City Council Staff Report – Page 3 of 8
staff has generated draft conditions of approval to address these topics that would be added to the project’s final set of conditions if the project would be approved. These conditions have been drafted as shown below.
1.ONGOING – Truck movements into, out of, and around the truck court of the project site, shall be prohibited between 10:00 p.m. and 6:00 a.m.
2.PRIOR TO APPROVAL OF IMPROVEMENT PLANS – The project shall be required to pay its fair share of a new sound/screen wall at the end of Debina Court near the intersection of Zinfandel Drive and Baroque Drive, as well as any additional traffic calming measures required along Bear Hollow Drive.
3.PRIOR TO ISSUANCE OF BUILDING PERMIT – The project shall include skylights and a roof that is designed to carry solar panels. This information shall be shown on the submitted building permits.
4.PRIOR TO ISSUANCE OF BUILDING PERMIT – The project shall provide bicycle parking spaces on-site, in a combination of both short-term and long-term spaces.
5.PRIOR TO ISSUANCE OF BUILDING PERMIT – The project shall include EV charging infrastructure upon construction, and be EV ready as required by the California Building Code.
6.PRIOR TO ISSUANCE OF BUSINESS LICENSE – Should the building, or a portion of the building, be leased to a use that requires refrigerated trucks, electrical outlets shall be installed at each loading dock to minimize truck idling.
Again, these conditions would be included as part of the final conditions of approval, if the Council provides direction to prepare documents for approval.
Additional Conditions Requested by the Community
In addition to the community requests listed above that have been agreed to by the Applicant, the community has requested additional conditions of approval that were received on January 17, 2023, listed below. Staff’s initial feedback on these specific requests is also provided below.
1. No construction traffic on Bear Hollow north of entrance.
2. Limited construction traffic (construction phase) and truck traffic (operational stage) during Navigator school drop off and pick up times as well as peak traffic hours on Zinfandel to the Hwy 50 overpass (7:45 a.m.- 9:00 a.m. and 4:30 p.m.-5:30 p.m.)
3. All light fixtures, both pole and building mounted have motion sensors installed.
4. The wall pack units that are to be installed on the east side of the building facing Bear Hollow Drive be replaced with pole lights to minimize glare into the Veranda neighborhood.
5. Establish a $200,000 fund to provide the highest quality air filters for neighbors in the Villages of Stone Creek.
6. As an alternative to active enforcement, put up cameras at key locations to catch truck route and parking violators paid by Developer(s) and fund for operations, maintenance.
Suggested camera locations would be N. Mather and Bear Hollow by school.
City Council Staff Report – Page 4 of 8
7. Increase the height of sound walls all along Zinfandel for the residents whose homes back up to Zinfandel and will be impacted by the increase in truck noise. VOZSPA stated 6-8 feet walls, 6' were built. Increase to 8'.
In regards to the construction traffic items in 1 and 2 listed above, those could be addressed in a construction traffic management plan and could be a condition of approval if agreed to by the Applicant. However, regarding the request for a permanent hours limitation on truck operations during peak school traffic hours requested in items 1 and 2, the Applicant is unlikely to agree and the City could not presently require such a restriction without their agreement.
Staff would not support the additional lighting requests outlined in 3 and 4. The current lighting standards in the code require lighting to be shielded downward so that it does not create an offsite impact. Additionally, increasing the amount of light poles could create additional unwanted glare and brightness when the site is viewed from a distance. Requiring motion sensors on the lights could lead to constant flickering on and off when any motion is detected and would not adequately provide safe nighttime lighting on the site.
Items requested in 5 and 6 would be above and beyond what the City is permitted to impose as a condition on a design review. However, in the future the City Council could direct staff to look into methods to fund these additional requests through other means.
Lastly, staff would not be in support of raising the existing wall along Zinfandel to 8 feet. There is not a nexus to require the Applicant to increase the wall height by two feet. Further, this effort would require the removal of the existing wall, as it likely is not currently constructed to handle the additional weight load of two more feet of masonry material. Removal of this wall would also result in the removal of existing improvements along Zinfandel, including mature landscaping and on adjacent private property which could also include landscaping, accessory structures and/or pools.
ENVIRONMENTAL
The Logisticenter at Rancho Cordova Major Design Review is exempt from CEQA review under CEQA State Guidelines section 15183. Projects that are consistent with the development density established by existing zoning, community plan, or general plan policies for which an Environmental Impact Report (EIR) was certified, except as might be necessary to examine whether there are project-specific significant effects which are peculiar to the project or its site and which were not addressed as significant effects in the prior EIR, or which substantial new information shows will be more significant than described in the prior EIR are exempt from CEQA. The project is located within the Villages of Zinfandel Special Planning Area (VOZSPA).
An EIR was certified by the Sacramento County Board of Supervisors in 1998 for the VOZSPA.
Additionally, a Supplemental EIR was prepared and certified by the Sacramento County Board of Supervisors in 2002 for the plan area.
The Logisticenter at Rancho Cordova Major Design Review involves development of a 155,040 square foot industrial shell building with parking and loading docks. The development also includes landscaping, drainage, and required screening/fencing for a loading dock area. The business and professional park (BP) site was identified in the Villages of Zinfandel Special Planning Area EIR and uses contemplated within the BP designation include those uses listed in the Sacramento County Zoning Code under the BP and MP (Industrial Office Park) use tables located in Chapter 25 and Chapter 30. Warehousing is a permitted by right uses as listed in Table IV I.3.
City Council Staff Report – Page 5 of 8
Additional supplemental technical studies were prepared to further support that no additional project related impacts would occur as a result of the proposed project. These technical studies include additional traffic analysis, as well as a noise study. The traffic analysis results were summarized under the Traffic Improvements section of the December 5, 2022, staff report. The noise study that was completed concluded that noise levels associated with the project generated on-site operations would satisfy the General Plan noise criteria at the nearest existing residential uses. This is due in part to existing solid noise barriers in the vicinity, as well as overall on-site operational practices.
As this Major Design Review is consistent with the Special Planning Area and the environmental documentation prepared for the Special Planning Area, it is exempt from CEQA review. So long as the project does not have any project-specific significant effects peculiar to the Major Design Review and not identified in the previous environmental documentation, the project is exempt and no additional environmental document pursuant to CEQA is required.
The project applicant is requesting approval of a Major Design Review for the proposed project.
Additionally, under CEQA, the City lacks the discretion under the Major Design Review approval process to consider environmental effects not related to the design of the project, including, but not limited to human health impacts from toxic air contaminants, greenhouse gas emissions, and impacts of biological resources.
Analysis of Major Legal Issues
Members of the Stone Creek community and the Applicant have retained legal counsel that are actively engaged in letter writing and advocacy regarding the project. The major legal questions raised by the legal counsel are:
Is the 2003 Development Agreement valid and enforceable? Is the project exempt from further project-specific legal review? On behalf of members of the Stone Creek Community, Counsel Gloria Smith argues that the answers to these two questions are “no” (Attachments 4, 5, and 6) and urges the City Council not to approve the project as proposed. On behalf of Dermody, Arthur Coon responds that the answers to these questions are “yes” and asserts that the City must approve the project, substantially in its current form, or be in default of the Development Agreement (Attachments 7, 8, 9, 10, 11, 12, and 13).
While there are various other legal issues that have been raised by the attorneys and members of the public, these are the central legal and procedural questions.
Given the unusual level of public controversy and the high stakes on both sides of the project, the City has taken the additional step of supplementing the considerable land use and CEQA experience of the City Attorney’s law firm, with an independent legal assessment of these issues by another respected law firm, Hanson Bridgett (Attachment 14).
As summarized in their letter, Hanson Bridgett has a mix of public agency and private entity experience. They are well-versed in land use transactional work, CEQA, and warehouse development, and have assembled a highly-qualified group of attorneys to consider these issues. Hanson Bridgett has never represented the Developer, and has not previously worked
City Council Staff Report – Page 6 of 8
with the City, the City Attorney, or the City Manager. Hanson Bridgett’s conclusions are in Attachment 14.
Having carefully evaluated and weighed the arguments and analysis on these two issues by the legal counsel for members of the Stone Creek community and the Applicant, and performed additional analysis, Hanson Bridgett and the City Attorney’s firm have reached the same legal answers to these two critical issues. The City’s law firms are of the opinion that the answer to both questions is yes.
The Development Agreement is Valid and Enforceable
The County and Dermody Properties’ predecessor in interest entered into the Development Agreement on May 28, 2003. The City’s incorporation had been approved shortly before, in the November 2002 election. As Hanson Bridgett explains, the LAFCO resolution approving the incorporation stated in part that “[a]ny and all development agreements entered into between the County of Sacramento and any development project applicant . . . shall remain valid and enforceable between the applicant and the new City of Rancho Cordova, subject to Government Code Section 65865.3, subdivisions (a) and (b).”1
Hanson Bridgett and the City Attorney’s firm interpret this provision of the LAFCO resolution as having the effect of making all prior development agreements entered into by the County initially binding on Rancho Cordova, including the Villages of Zinfandel Development Agreement. After incorporation the City took multiple actions on the Development Agreement, which were valid actions, amending an existing and enforceable development agreement (see Attachment 14 page 3). If the City did not want to accept and be bound by the Villages of Zinfandel Development Agreement, it could have taken action to object to or sue on the terms of the LAFCO resolution. It did not.
Instead, the City has had a twenty-year history of actions in furtherance of the Villages of Zinfandel Development Agreement. These actions2 show that the City believed that the Development Agreement was valid and binding.3 These actions were not challenged within the statutes of limitations that apply to development agreement amendments. 1 Government Code section 65865.3 provides, in part, that a city will be bound by a development agreement after its incorporation if: (1) the application for the agreement was submitted to the county prior to the date that the first signature was affixed to a petition for incorporation or annexation, or the adoption of a resolution; (2) the county entered into the agreement prior to the date of the election for incorporation or annexation, or if there was an annexation without an election, prior to the date the applicable authority ordered the annexation; and (3) the annexation proposal was initiated by the city. (Gov. Code, § 65865.3, subd. (c)(1)-(3).) 2 Including significantly Ordinance No. 38-2004 amending the Development Agreement, and including the following language in Section G. “Except as expressly amended by this Amendment, all of the terms, conditions and provisions of the Development Agreement remain in full force and effect.”, Ordinance No. 25-2009, amending the Development Agreement and including the following language in Section D. “Except as expressly amended by this Amendment, all of the terms, conditions and provisions of the Development Agreement remain in full force and effect.” and Ordinance No. 6-2016, amending the Development Agreement a third time, including the following language in Section E. “Except as expressly amended by this Amendment, all of the terms, conditions and provisions of the Development Agreement remain in full force and effect.”
3 As Hanson Bridgett notes, the most recent amendment extended the term of the Development Agreement to June 2023.
City Council Staff Report – Page 7 of 8
Hanson Bridgett and the City Attorney’s firm agree that the durational limitations in Government Code section 65865.3 are not applicable because the Development Agreement was approved after the incorporation election.
In short, Hanson Bridgett and the City Attorney’s firm are both of the opinion that the Development Agreement is valid and enforceable.
The Project is Exempt from Further CEQA Review
Public Resources Code section 21083.3 established a procedure for streamlined CEQA review for projects that are consistent with development densities established by an existing community plan for which an EIR was previously certified (Pub. Resources Code, § 21083.3, subd. (a); see also Guidelines, § 15183). As discussed above, in these instances, CEQA review “shall be limited to effects upon the environment which are peculiar to the parcel or to the project and which were not addressed as significant effects in the prior environmental impact report, or which substantial new information shows will be more significant than described in the prior environmental impact report” (Pub. Resources Code, § 21083.3, subd. (a).).
As noted above, the project is located in the Villages of Zinfandel Special Planning Area (VOZSPA). An EIR for this area was certified by the County in 1998. A Supplemental EIR was certified by the County in 2002.
As explained by Hanson Bridgett (Attachment 14) and as explained above by the City (see also, Attachment 1 December 5, 2022, and Attachment 2 January 17, 2023, staff reports), the project is consistent with development densities in the VOZSPA. Hanson Bridgett also concluded that no technical studies have identified any project-specific environmental effects not analyzed in the VOZSPA EIR. Neither Hanson Bridgett, the City Attorney, nor City staff have identified any other project-specific factors that would require further environmental review under Section 21083.3 and Guideline Section 15183.
Further, consistent with the City’s above analysis, Hanson Bridgett noted that the project design is not anticipated to implicate any new environmental effects, and the scope of any CEQA review and analysis is limited to environmental effects within the scope of the City’s design review authority.
The City Attorney’s firm agrees with Hanson Bridgett that the project is accordingly exempt from further CEQA review. The City cannot require additional CEQA review.
NEXT STEPS
Upon conclusion of the presentation and public testimony, City Council could do one of the following:
1. Direct staff to return at a later City Council meeting with final action documents.
2. Direct the Applicant to make additional modifications to the proposed project.
ATTACHMENT(S)
1. Staff Report dated December 5, 2022, for Logisticenter
2. Staff Report dated January 17, 2023, for Logisticenter
3. Frequently Asked Questions
City Council Staff Report – Page 8 of 8
4. The Law Offices of Gloria D. Smith dated January 17, 2023
5. The Law Offices of Gloria D. Smith dated January 27, 2023
6. The Law Offices of Gloria D. Smith dated February 13, 2023
7. Miller Starr Regalia dated September 16, 2022
8. Miller Starr Regalia dated November 29, 2022
9. Miller Starr Regalia dated December 14, 2022
10. Miller Starr Regalia dated January 10, 2023
11. Miller Starr Regalia dated January 25, 2023 – 1st Letter
12. Miller Starr Regalia dated January 25, 2023 – 2nd Letter
13. Miller Starr Regalia dated February 6, 2023
14. Hanson Bridgett dated February 28, 2023
City Council Staff Report – Page 1 of 13
MEMORANDUM
ITEM 22.1.
DAT
E: December 5, 2022
T
O: Honorable Mayor and Council Members
FRO
M: Nicholas Sosa, Associate Planner
SUBJ
ECT: LOGISTICENTER AT RANCHO CORDOVA - MAJOR DESIGN REVIEW – PROJECT NO. PLND-1021-0015
PROPERTY OWNER:
DPML Bear Hollow, LLC
5500 Equity Avenue
Reno, NV 89502
APPLICANT/DEVELOPER:
Dermody Properties
George Condon
5500 Equity Avenue
Reno, NV 89502
PROJECT: Logisticenter at Rancho Cordova – Major Design Review FILE: PLND-1021-0015
LOCATION: Corner of Bear Hollow Drive and N. Mather Boulevard APN: 072-2360-041-0000
PLANNER: Nicholas Sosa, Associate Planner
RE
COMMENDATION
Ther
e is no staff recommendation at this time. Staff is providing a response to public comment received as well as Council’s concerns that were raised at the July 18th Council meeting and will be looking for any additional direction from Council for this project. The requested Major Design Review is within the Villages of Zinfandel Special Planning Area (VOZSPA) and therefore applicable design standards listed within the VOZSPA would be utilized to determine approval or denial of the project. This meeting is intended to discuss the project in detail regarding these standards and provide direction to Staff to return to Council with a final resolution based upon that discussion, at a later date. As a result of the holiday City Council schedule, the public hearing will be continued to the January 17, 2023 City Council meeting. At that time, staff may bring back draft documents for possible final action based upon Council’s direction.
V
ILLAGES OF ZINFANDEL SPECIAL PLANNING AREA BACKGROUND
The P
roject, Logisticenter at Rancho Cordova, is located within the VOZSPA. The Special Planning Area was approved in 2002 by Sacramento County. The VOZSPA includes residential, commercial, business professional, light industrial, parks, bike trails, and open space uses. An Environmental Impact Report (EIR) was prepared, which took into consideration full build out impacts of the VOZSPA, including biological, noise, traffic, and utilities. The EIR was ITEM 18.1.
ATTACHMENT 1
City Council Staff Report – Page 2 of 13
certified for the Special Planning Area in 1998 by Sacramento County and a Mitigation Monitoring Reporting Program was adopted.
W
hen the VOZSPA was adopted, the property owners entered into a Development Agreement with Sacramento County, which had jurisdiction over the planning area at the time. This Development Agreement created vested rights for the property owner which effectively solidified all regulations and developments standards at that time (2003) to be applicable within the VOZSPA for the life of the twenty-year term of the development agreement. At the time that these rights were vested by the County in favor of the property owners, the VOZSPA and 2003 Sacramento County Zoning Code were the applicable documents and therefore continue to be the regulatory documents utilized for permitted and conditionally permitted uses and development standards such as building size, setbacks, landscaping, and parking for projects under review today. The standards in the City of Rancho Cordova Municipal Code, including the standards for Major Design Review in Section 23.141 are subordinate to and cannot be applied in conflict with the VOZSPA or the County Code. Under the Development Agreement only City standards that do not “prevent development of the Property to the uses, and to the density, or intensity of development” and “do not negatively impact the timing or rate of development of the Property” can be applied to the Project. (DA Section 2.4) I
n addition to the vested rights established by the property’s Development Agreement, the Villages of Zinfandel’s allowed uses and development standards are further limited by the Mather Field Airport’s overflight zone which is “governed” by the Sacramento Area of Council of Governments and the Mather Airport Land Use Plan. The Land Use Plan includes limitations based upon a property’s proximity to the airport. Areas that are most restrictive are those within the flight safety zones which are within the direct approach/departure flight paths of the runway.
These areas are limited in both use and construction to minimize potential destruction if an accident should occur. The Land Use Plan also includes “Sound Contours” which are areas of excessive noise from the approach and departure of planes on the runway. The noise levels in these areas range from 75-60 decibel’s which further dictates allowed uses within the area as these noise levels would not be appropriate for certain uses such as office space or residential housing which has a limitation of a maximum of 55 decibels. The proposed project is located partially within one noise contour level, the 65-decibel noise contour. The Land Use Plan of the airport in conjunction with the vested rights of property owners in the Villages of Zinfandel SPA are both utilized in reviewing projects to determine which uses are allowed within certain areas of the VOZSPA and which development standards are applicable to each project.
P
ROJECT HISTORY
The A
pplicant submitted an application on October 25, 2021, for a 155,040 square foot shell building called Logisticenter at Rancho Cordova which includes a loading dock area, commercial parking, and additional site improvements located at the intersection of Bear Hollow Drive and N. Mather Boulevard. The project site is zoned Business and Professional Office (BP) within the Zinfandel Special Planning Area (VOZSPA) and is surrounded by other office and industrial uses as shown in Figure 1 and listed in Table 1 below.
ITEM 18.1.
ATTACHMENT 1
City Council Staff Report – Page 3 of 13
Fi
gure 1: Project Location
T
able 1: Surrounding Designations and Existing Uses
Location Existing Use
General Plan
Designation Zoning Designation
Subject Site Undeveloped lot
Office Mixed Use
(OMU)
Business Professional Zinfandel
Special Planning Area (BP
VOZSPA)
Northwest
California Military
Department Consolidated
Headquarters
Office Mixed Use
(OMU)
Business Professional Zinfandel
Special Planning Area (BP
VOZSPA)
Northeast Undeveloped Lot
Office Mixed Use
(OMU)
Business Professional Zinfandel
Special Planning Area (BP
VOZSPA)
South
Mather Air Force Base
(County) / Detention
Basin
Airport (County) /
Open Space
Mather Airport (County) and Open
Space Zinfandel Special Planning
Area (O VOZSPA)
The pr
oposed project included a 155,040 SF building oriented with frontage along N. Mather Boulevard and side frontage along Bear Hollow Drive. The site provides a total of 3 access points to the property, one along N. Mather and two along Bear Hollow. This project is only for a shell building and does not include specific uses at this time and therefore no use permits have been included with this project. As a shell building, the project has been reviewed as a “wholesaling and warehousing” use which is permitted by right within the BP zoning designation of the VOZSPA. Any future tenants that are not permitted by right at this location will be required to obtain the appropriate use permits from the Planning Department and will be subject to additional review at that time.
ITEM 18.1.
ATTACHMENT 1
City Council Staff Report – Page 4 of 13
The Applicant held their initial neighborhood meeting on November 16, 2021, at 6:00PM via zoom and responded to minor concerns that were proposed at the meeting regarding lighting and noise which were adequately addressed by the Applicant.
The project was then presented at City Council on April 18, 2022, at the regularly scheduled City Council Meeting. After City Council was presented the project, there were some concerns with the bulk and massing of the building and staff was directed to work with the applicant to utilize additional landscaping to help mask the massing. Concern was also raised regarding direction of the truck traffic to and from the subject property. Staff was directed to continue to work with the Applicant to resolve these concerns and return to Council with an updated project.
City Staff held a community meeting at City Hall on June 27, 2022, to provide the Stone Creek Community a better understanding of the history of the Villages of Zinfandel Special Planning Area, regulatory documents applicable to this site, as well as all other sites in the SPA, and the extent of Staff’s ability to regulate these projects. Over 150 residents attended the meeting.
Attendees provided both questions and concerns, that were addressed by Staff and the original developer/property owner of the Villages of Zinfandel. Concerns that arose at the community meeting revolved around overall truck traffic throughout the area as well as the potential air quality effects of the added truck traffic.
Staff worked with the Applicant to address their concerns and the project was presented back to City Council on July 18, 2022. The project included additional large stature trees for landscape screening for the loading dock area both along Bear Hollow and the elevated bike trail. The revised project also included additional conditions of approval for restrictions on truck routes as well as a requirement for additional signage directing trucks to use N. Mather only as shown in green in Figure 2.
Figure 2: Allowed Truck Access Route
ITEM 18.1.
ATTACHMENT 1
City Council Staff Report – Page 5 of 13
CURRENT PROJECT
Since the July 18th City Council meeting, an additional neighborhood meeting was held by the Applicant on September 7, 2022, at 5:30PM here at City Hall. The meeting was held with stations highlighting various aspects of the project including traffic, architecture, and landscaping. Each station included a topic expert to help explain the project in detail for residents. From the meeting, there were still concerns regarding traffic and landscaping. To help address these concerns, the most recent submittal has provided modifications to the tree sizes and species on-site, modifications to the façade of the building, modifications to the parking lot, driveway and entrances, as well as off-site improvements to help mitigate potential impacts to the area from the facility.
Updated Façade Designs/Building Form
As previously mentioned, the project is located within the VOZSPA and therefore must adhere to applicable non-residential development standards and architectural guidelines listed within that Special Planning Area. As part of their most recent submittal, the Applicant has added revisions to their project to accommodate the required design guidelines. The Applicable guidelines can be found in Section 5; Subsection (D). Key elements regarding Building Form have also been summarized below.
• “Bulk of building massing generally should be minimized especially where residential character predominates”.
o The nearest residential neighborhood to the project site is 930 ft. to the east, to the Veranda subdivision and 790 ft. to the north. The National Guard Headquarters building is located immediately north of the project site and includes one large building and a few smaller ancillary buildings totaling 285,000 sq. ft. These building have no roof or wall articulation. • “Buildings should maintain a scale compatible with residential neighborhoods” o The proposed project is for a single building that is approximately 155,040 square feet in size. Other recently constructed buildings in the area include the Bold and Beauty building located at the intersection of Zinfandel Drive and N.
Mather Boulevard which is approximately 164,000 square feet with parapets ranging from 37’ (for a majority of the building) with a max height of 46’-4” (at three architectural tower features) and the CA National Guard Headquarters adjacent to this property which is approximately 238,000 square feet for its main building at a height of approximately 39-feet tall.
o The maximum height listed in section 325-04 of the 2003 Sacramento County Zoning Code is 40-feet. However, the project must meet the required design guidelines.
• “Building masses should be mitigated by elements such as canopies or trellises designed to focus attention on smaller-scaled elements of the building” ITEM 18.1.
ATTACHMENT 1
City Council Staff Report – Page 6 of 13
o The project incorporates metal canopies at storefront entrances as well as architectural trellises along large facades visible from Bear Hollow Drive and N.
Mather Boulevard.
• “Indentations, or other means of articulation, should be used to a avoid monolithic effect.”
o The updated facades have incorporated additional roofline articulation with par
apets steps at a maximum height of 40-feet and lower areas at 38-feet along publ
ic right of way elevations.
• “Building form should avoid proportionally long, flat surfaces”, “Flat monotonous surfaces shall be avoided.”
o As proposed, the building incorporates some relief by utilizing canopies and inset vertical panels.
• “Architecture on non-residential buildings should include columns, indentations, overhangs patios, trellises, and surface textures, on all elevations visible off-site” o The project includes metal canopies at storefront entrances at the southwest corner as well as the southeast corner. Trellis features have also been
i
ncorporated along long facades facing N. Mather Boulevard and Bear Hollow Drive.
o The project has also included a dark gray inset panels and windows along visible ex
tensive facades to break up large blank walls.
• “Storefronts should wrap around corners to create a sense of transparency and activity at intersections”
o The projects storefront entrances wrap around corners of facades. • “Large areas of blank walls with few openings or details should be avoided on facades facing streets or public spaces”
o The project has added visible dark gray inset panels to the project to accompany vertical windows along large areas of the facades visible by the Public.
The applicant has provided elevations and renderings that portray the design modifications that are detailed in the above section as well as a detailed image of the proposed landscaping at time of installation and 6-10 years from now. These renderings can be seen in Figures 3-5 below.
ITEM 18.1.
ATTACHMENT 1
City Council Staff Report – Page 7 of 13
Figure 3: Visibility from N. Mather Blvd & Bear Hollow Drive
Figure 4: Visibility at Southeast Corner Close Up
Building Rendering with Landscaping at Install
Building Rendering with Landscaping at 6-10 Years
Building Rendering with Landscaping at Install
ITEM 18.1.
ATTACHMENT 1
City Council Staff Report – Page 8 of 13
Figure 5: Visibility from Bear Hollow Drive
Building Rendering with Landscaping at 6-10 Years
Building Rendering with Landscaping at Install
ITEM 18.1.
ATTACHMENT 1
City Council Staff Report – Page 9 of 13
Landscaping Modifications
At the July 18th meeting, residents still voiced concerns regarding landscaping along Bear Hollow Drive and N. Mather Drive. The project includes a 12-foot screen wall at this location, however, rather than increase the height of the wall, the project proposed a more natural landscape screening of trees and shrubs that would minimize visibility of the truck area in the rear at approximately 10 years in the future. Concerns were raised in regard to the size of the landscaping and the time that would be required for the landscaping to complete its intended purpose of screening the loading dock area and commercial truck parking area at the north end of the property. As part of this most recent submittal, the Applicant has modified the proposed species of the trees and has also increased the initial proposed sizes of the trees and density of the plantings to speed up the screening ability of the landscaping.
Building Rendering with Landscaping at 6-10 Years
ITEM 18.1.
ATTACHMENT 1
City Council Staff Report – Page 10 of 13
Figure 6: Landscape Tree Size Map
The Applicant has worked with the City’s Arborist to determine the best species of trees as well as the most appropriate number of trees throughout the site that would result with the desired outcome while still maintaining the necessary growth spacing and separation.
There is a total of thirty-six, 48-inch box trees placed strategically in areas that would require the most screening such as along public rights of way and the existing bike trail to the southwest of the site. Other proposed trees include twenty-eight, 36-inch box trees and one-hundred forty- one, 24-inch box trees. These trees have been added in areas that are unable to accommodate a 48-inch box tree and areas that would increase the overall density of the landscaping to provide a thorough screening. In speaking with the City Arborist, the proposed density of trees shown in Figure 6 would be the maximum that the site would be able to accommodate with minimal overcrowding of canopies. Overcrowding can lead to several future concerns that could hinder the performance of the tree. The City’s Arborist has listed a few of those potential issues below.
• Trees planted too close together can result in narrow misshapen canopies with weak branching and poorly tapered trunks as the trees are not receiving enough sunlight.
Long-term survival is much less likely for weakened trees • There is more competition for available water and nutrients and many of the trees are likely to grow slower and possibly fail to thrive.
• Overcrowded trees are more prone to pests and diseases. Poor air circulation from crowded canopies favors fungal diseases such as powdery mildew. Aphid and mite ITEM 18.1.
ATTACHMENT 1
City Council Staff Report – Page 11 of 13
infestations are also common in crowded conditions. The 23 proposed London Plane trees are very susceptible to all of these pests and diseases.
The di
agram shown in Figure 6 portrays the largest possible trees on-site as well as the largest number of trees possible (a total of 205, most of which are evergreen) without overcrowding the site. The Applicant has also provided updated renderings showing what the proposed landscaping would look like at installation as well as 10 years into the future (See Figures 3 through 5)
Tr
affic Improvements
Tr
ip generation for this site is estimated by KD Anderson & Associates to be 217 to 755 trips per day depending on the ultimate use of the site. Peak hours are estimated to be up to 115 trips in the morning hour and 101 trips in the afternoon hour. Of the daily trips, it is estimated that 34 to 93 will be trucks.
The s
ite is conditioned and designed to direct truck trips to US-50 via two routes:
• North Mather to Zinfandel Drive then US-50.
• North Mather to Mather, Femoyer, International, Mather Field Road then US-50.
In their existing state, traffic on these routes is generally free flowing except during peak hours in the vicinity of interchanges (approaching freeway 50 north of White Rock on Zinfandel, and north of Rockingham on Mather Field). Congestion in the vicinity of urban interchanges is common in the region and state.
Li
ght industrial uses generate less trips than office/residential/retail use and their trips are spread throughout the day (trip generation from light industrial is about 50% of that generated by office). Therefore, warehouse/light industrial uses contribute less to congestion than other uses. Additional traffic from the proposed project is not projected to significantly change the level of service on these roads in the short or long term. And the estimated trip generations are consistent with assumptions of the Villages of Zinfandel Special Planning Area.
Tr
uck traffic results in greater wear on roads compared to passenger vehicle traffic. The project is conditioned to annex into the City’s community facilities district for street and lighting maintenance, including a load factor to account for truck trips. The estimated tax for fair-share street and lighting maintenance at this site is approximately $10,500 per year.
D
esign elements incorporated into the project include an angled driveway that directs trucks south on Bear Hollow directly to North Mather. And the project is conditioned to construct bulb- outs at the intersection of Bear Hollow with Air Park, Robola and Auvernat. The proposed bulb- outs will narrow the road resulting in further deterrent to trucks driving this corridor, reduced speeds for all vehicles, and greater protection for pedestrians.
I
n addition to the site-specific analysis, staff analyzed the assumptions of the 2002 environmental impact report relative to current traffic models and development that has occurred through 2022. Staff findings are that the actual development being realized for existing, proposed, and planned developments in the SPA is lower than what was identified in 2002 planning documents. Roadways were planned and built to accommodate traffic based on the projections in 2002. With the lower regional, area, and project specific trip generations, it is expected that there will be sufficient roadway capacity. The interchanges with US 50 have existing peak hour congestion which is expected to continue into the future. These changes in ITEM 18.1.
ATTACHMENT 1
City Council Staff Report – Page 12 of 13
realized development are lessening the expected future deficiencies at interchanges relative to projections in the 2002 environmental impact report.
R
esident Frequently Ask ed Questions
The application was originally submitted in October of 2021. Over the course of the project, bot
h Staff and City Council have received numerous correspondence from the community with inquiries on the details of the project, the status of the review, and the standards and regulations applicable, as well as correspondence voicing direct opposition to the project. Many of the questions presented by the community were similar or overlapped other questions that we may have received from other community members. Therefore, in an effort to provide a response to all community members that is consistent and available to everyone, Staff has created a Frequently Asked Questions (FAQ) sheet that addresses a majority of the common questions that we’ve received. This FAQ sheet has been included as Attachment 3. It is important to note that the questions that have been addressed do not include any questions that require a final determination of the project or questions that imply approval or denial of the proposal. These questions can only be answered at the public hearing of the decision-making body, which for this project, would be City Council.
E
NVIRONMENTAL
The Logi
sticenter at Rancho Cordova Major Design Review would be exempt from CEQA review under CEQA State Guidelines Section 15183. This exempts from CEQA projects that are consistent with the development density established by existing zoning, community plan, or general plan policies for which an Environmental Impact Report (EIR) was certified, except as might be necessary to examine whether there are project-specific significant effects which are peculiar to the project or its site. The project is located within the Villages of Zinfandel Special Planning Area (VOZSPA). An EIR was certified by the Sacramento County Board of Supervisors in 1998 for the VOZSPA. Additionally, a Supplemental EIR was prepared and certified by the Sacramento County Board of Supervisors in 2002 for the plan area.
The Logi
sticenter at Rancho Cordova Major Design Review involves development of a 155,040 square foot industrial shell building with parking and loading docks. The development also includes landscaping, drainage, and required screening/fencing for a loading dock area. The business and professional park (BP) site was identified in the Villages of Zinfandel Special Planning Area EIR and uses contemplated within the BP designation include those uses listed in the Sacramento County Zoning Code under the BP and MP (Industrial Office Park) use tables located in Chapter 25 and Chapter 30. Warehousing is a permitted by right uses as listed in Table IV I.3.
A
dditional supplemental technical studies were prepared to further support that no additional project related impacts would occur as a result of the proposed project. These technical studies include additional traffic analysis, as well as a noise study. The traffic analysis results were summarized under the Traffic Improvements section of this staff report. The noise study concluded that noise levels associated with the project generated on-site operations would satisfy the General Plan noise criteria at the nearest existing residential uses. This is due in part to existing solid noise barriers in the vicinity, as well as overall on-site operational practices.
A
s this Major Design Review is consistent with the Special Planning Area and the environmental documentation prepared for the Special Planning Area, it is exempt from CEQA review. So long as the project does not have any project-specific significant effects peculiar to the Major Design ITEM 18.1.
ATTACHMENT 1
City Council Staff Report – Page 13 of 13
Review and not identified in the previous environmental documentation, the project is exempt and no environmental document pursuant to CEQA is required. The project applicant is requesting approval of a Major Design Review for the proposed project. Additionally, under CEQA, the City lacks the discretion under the Major Design Review approval process to consider environmental effects not related to the design of the Project, including, but not limited to human health impacts from toxic air contaminants, greenhouse gas emissions, and impacts of biological resources.
N
EXT STEPS
U
pon conclusion of the presentation and public testimony, City Council could do one of the following:
1. D
irect staff to return at a later City Council meeting with final action documents
2. Direct the applicant to make additional modifications to the proposed project.
AT
TACHMENT(S)
1. P
roject Plans
2. DRAFT Project Conditions
3. Frequently Asked Questions
4. Presentation
5. Letter from Miller Starr Regalia dated November 29, 2022 ITEM 18.1.
ATTACHMENT 1
City Council Staff Report – Page 1 of 9
MEMORANDUM
ITEM 18.1.
DAT
E: January 17, 2023
T
O: Honorable Mayor and Council Members
FRO
M: Nicholas Sosa, Associate Planner
SUBJ
ECT: LOGISTICENTER AT RANCHO CORDOVA MAJOR DESIGN REVIEW – PROJECT NO. PLND-1021-0015
PROPERTY OWNER:
DPML Bear Hollow, LLC
5500 Equity Avenue
Reno, NV 89502
APPLICANT/DEVELOPER:
Dermody Properties
George Condon
5500 Equity Avenue
Reno, NV 89502
PROJECT: Logisticenter at Rancho Cordova – Major Design Review FILE: PLND-1021-0015
LOCATION: Corner of Bear Hollow Drive and N. Mather Boulevard APN: 072-2360-041-0000
PLANNER: Nicholas Sosa, Associate Planner
RE
COMMENDATION
Ther
e is no Staff recommendation at this time.
S
taff is providing a response to Council’s concerns that were raised at the December 5, 2022 Council meeting and responding to additional information from the applicant and the applicant’s attorney. Staff will be seeking additional direction from Council for this project. The public hearing will be continued to a future Council date. At that time, staff may bring back documents for possible final action based upon Council’s direction.
P
ROJECT BACKGROUND
The pr
oject was previously presented on December 5, 2022, at the regularly scheduled City Council Meeting. After City Council was presented the project, there were requests for:
A. addi
tional modifications to the building to create a more office building feel for the design;
B. addit
ional renderings for the project from various locations within the vicinity of the site; C. f
urther consideration by the applicant about possible limits of operating hours and required truck routes for the project; and
ITEM 18.1.
ATTACHMENT 2
City Council Staff Report – Page 2 of 9
D. analysis regarding what the definition of a warehouse was at the time of the development agreement and how that relates to today’s warehouse standards.
The project was then continued to the January 17
th meeting to provide adequate time for Staff to
work with the developer on addressing these concerns. The applicant has provided revised project elevations and renderings and additional research has been conducted to respond to questions directed toward Staff. The attorney for the applicant also submitted letters to the City Council on November 29 and December 14 which are discussed in part below. An additional letter from the applicant’s attorney was received on January 10th. The letter was not received in time to provide a response in the staff report. However, the City Attorney will address the letter at the hearing.
1. The C
ouncil requested to have the building portray more of an office building look with more articulation and horizontal window paneling and to minimize the look of a long monolithic building through variations of color, height, and articulation.
Such requested changes would be consistent with specific provisions of the SPA design guidelines:
A. “ Building form should avoid proportionally long, flat surfaces. Architecture on non- residential buildings should include columns, indentations, overhangs, patios, trellises, and surface textures, on all elevations visible off-site…Large areas of blank walls with few openings or details should be avoided on facades facing streets or public spaces.” (Villages of Zinfandel SPA DG, pg 23.)
B. “Building elevations must be attractively designed on all four sides. Walls at interior property lines or project phase lines must be given specific design attention, with color, physical relief, and/or landscaping. Backs and sides of buildings visible from public streets should incorporate window and door openings.” (Villages of Zinfandel SPA DG, pg 24.)
C. “Variation in the shape, color, and texture of roof structures should be used to create diversity and interest…Flat, monotonous surfaces shall be avoided.” (Villages of Zinfandel SPA DG, pg 24.)
The Applicant has submitted revised elevations that include additional windows to create more visual variation and articulation and more of an office space look. The proposed windows are larger and occupy more of the façade along Bear Hollow Drive and N. Mather Boulevard. The Applicant has also incorporated additional roof variation on the facades facing Bear Hollow and N. Mather that show a maximum height of 40 feet to highlight windowed areas with other parapet areas showing a 3-foot drop at 37 feet in height. On the west elevation, the applicant has provided a slight roofline variation, but has not added details to the large blank facades above the truck bays. The comparison of the project’s original submittal with their revised current submittal can be seen in Figures 1 and 2.
ITEM 18.1.
ATTACHMENT 2
City Council Staff Report – Page 3 of 9
Figure 1: Original Submittal
Figure 2: Current Submittal
ITEM 18.1.
ATTACHMENT 2
City Council Staff Report – Page 4 of 9
2. The Council also requested additional renderings of the project from locations within the vicinity of the project site.
The Council’s request for additional renderings included areas such as Navigator Elementary School and the Veranda subdivision. The renderings below provide a perspective from each of the marked locations of what the built environment would be at project completion. Given these distances, it is difficult for staff to comment on the compatibility of the structure with the surrounding area as the aesthetic impact of the structure within the provided image is minimal. It is also important to note that these photographic renderings show the site and surrounding properties as they stand today and does not include any future proposed projects that may be currently under review or projects that could be potentially submitted that could significantly alter the visibility of the structure from these viewpoints.
Figure 3: From Queens Arbor at Elementary School
National Guard HQ
ITEM 18.1.
ATTACHMENT 2
City Council Staff Report – Page 5 of 9
Figure 4: From Portico Circle in Veranda
3. The C ouncil also mentioned larger, more mature trees at installation for the project landscaping to mask/screen the building.
The Applicant has been working with the City’s Arborist as well as their own landscape architect and have provided the largest trees at installation as possible without sacrificing the future health and performance of the trees. The project proposes (141) 24-inch box trees, (28) 36-inch box trees, and (36) 48-inch box trees. The landscape plan places the largest 48-inch box trees in areas that would provide the most screening of the building.
This landscape plan was described in detail as part of the December 5th staff report (see attachment 1). No modifications have been made to the landscape plan as part of this resubmittal.
4. The appl
icant has already agreed to Conditions of Approval that would significantly limit operation of semi-trucks, and truck routes. This was discussed in the December 5th staff report and presented at the hearing, but a summary of those improvements are listed below.
The site is conditioned and designed to direct truck trips to US-50 via two routes:
• North Mather to Zinfandel Drive then US-50.
• North Mather to Mather, Femoyer, International, Mather Field Road then US-50.
In their existing state, traffic on these routes is generally free flowing except during peak hours in the vicinity of interchanges (approaching freeway 50 north of White Rock on National Guard HQ
ITEM 18.1.
ATTACHMENT 2
City Council Staff Report – Page 6 of 9
Zinfandel, and north of Rockingham on Mather Field). Congestion in the vicinity of urban interchanges is common in the region and state.
Design elements incorporated into the project include an angled driveway that directs trucks south on Bear Hollow directly to North Mather. And the project is conditioned to construct bulb-outs at the intersection of Bear Hollow with Air Park, Robola and Auvernat. The proposed bulb-outs will narrow the road resulting in further deterrent to trucks driving this corridor, reduced speeds for all vehicles, and greater protection for pedestrians.
5. R
esponse to assertions of applicant’s attorneys.
A. The City is implementing design standards that were adopted at the same time as the zoning that allows warehouse uses, the City is not imposing any later enacted requirements or conditions.
A warehouse being an allowed use on this site does not mean that the currently proposed design complies with the design standards and must be approved. The use table and Design Guidelines work in concert. The project must comply with both.
B. The applicant’s attorneys misstates or does not address critical design provisions and requirements of the SPA.
The warehouse design standards are those that were in effect when the SPA and DA were adopted in 2003, not those in the 2020 Commercial Real Estate Development Association “Rules of Thumb for Distribution/Warehouse Facilities Design” cited by the applicant’s attorneys.
The applicants, not the City, have introduced evidence of warehouse design from after the date the Development Agreement and SPA were approved.
The applicant’s attorneys cite to a Rule of Thumb for Distribution/ Warehouse Facilities Design noting that “to support modern logistics uses, buildings of 150,000 square feet and greater should provide 36-foot interior clearance, which requires an exterior height of approximately 40 feet” (December 14 letter, footnote 7)
The applicant’s attorney does not point to any section of the SPA or design standards from 2002 or contemporaneous sources to establish that any warehouse use requires a 36-foot internal clearance for the entire structure.
C. The a
pplicant’s attorneys do not address how the building form avoids long flat surfaces, an objective design standard present in the SPA1.
The City has the discretion to require a design conforming to this standard in the SPA.
D. The Cit y has the discretion to require design modifications to all four sides of the building and all elevations, contrary to the assertion from the applicant’s attorneys’ that
1 “Building form should avoid proportionally long, flat surfaces. Architecture on non- residential buildings should include columns, indentations, overhangs, patios, trellises, and surface textures, on all elevations visible off - site…Large areas of black walls with few openings or details should be avoided on facades facing streets or public spaces.” (Villages of Zinfandel SPA, DG pg 23.)
ITEM 18.1.
ATTACHMENT 2
City Council Staff Report – Page 7 of 9
it is not required to “make aesthetic changes to ‘all four sides’ of the Project’s elevations”.
The SPA Design Guidelines specifically provide the City with the authority in two separate sections to require such aesthetic changes on all four sides of the project building. The SPA states “[b]uilding elevations must be attractively designed on all four sides” and “[a]rchitecture on non-residential buildings should include columns, indentations, overhangs, patios, trellises, and surface textures, on all elevations visible off-site.” (Villages of Zinfandel SPA DG, pgs 23-24.)
The applicant’s attorneys assert that the City does not have the discretion to impose both aesthetic modifications on all four sides as well as requiring landscaping that shields the enormity of the building from view, however this assertion is contrary to the intent of the Design Guidelines as each design modification is not mutually exclusive.
The City may impose design modifications as necessary to bring the project into compliance with the design standards. Landscaping is not a substitute for compliance with these building design standards. Even the best landscaping cannot permanently and immediately achieve what building design accomplishes, including avoidance of “proportionally long, flat surfaces” and “[v]ariation in the shape, color and texture of roof structures”.
The Council may wish to consider in particular the articulation, design details of the west elevation.
E. R
oof lines on all sides should be articulated and varied.
The SPA states “[v]ariation in the shape, color, and texture of roof structures should be used to create diversity and interest…Flat, monotonous surfaces shall be avoided.” (SPA DG pg 24) In their November 29
th letter, the applicant’s attorneys assert that “the
City has no legal authority to deny the Project or to condition approval on Dermody’s agreement to reduce the building height”. Unsupported by any cited legally authority and seemingly ignoring this roof design standard, the applicant’s attorneys thus appear to take the position, that in implementing this standard, the City could not cause any even slight reduction of the proposed height of any portion of the project roof line, even in portions that may be flat, monotonous and unvaried contrary to this standard.
F. P roject site is different in location, surroundings, and requirements from other nearby commercial sites.
The project site is situated in an area with the National Guard Headquarters to the north and west, Mater airport to the south and a vacant parcel to the east. The specific project location is not adjacent to residential uses or other commercial sites. Similar uses on other locations within the VZSPA have different built environments that may hold those uses to more stringent development standards.
ENVIRONMENTAL
The Logisticenter at Rancho Cordova Major Design Review would be exempt from CEQA review under CEQA State Guidelines Section 15183. This exempts from CEQA projects that are consistent with the development density established by existing zoning, community plan, or general plan policies for which an Environmental Impact Report (EIR) was certified, except as ITEM 18.1.
ATTACHMENT 2
City Council Staff Report – Page 8 of 9
might be necessary to examine whether there are project-specific significant effects which are peculiar to the project or its site. The project is located within the Villages of Zinfandel Special Planning Area (VOZSPA). An EIR was certified by the Sacramento County Board of Supervisors in 1998 for the VOZSPA. Additionally, a Supplemental EIR was prepared and certified by the Sacramento County Board of Supervisors in 2002 for the plan area.
The Logisticenter at Rancho Cordova Major Design Review involves development of a 155,040 square foot industrial shell building with parking and loading docks. The development also includes landscaping, drainage, and required screening/fencing for a loading dock area. The business and professional park (BP) site was identified in the Villages of Zinfandel Special Planning Area EIR and uses contemplated within the BP designation include those uses listed in the Sacramento County Zoning Code under the BP and MP (Industrial Office Park) use tables located in Chapter 25 and Chapter 30. Warehousing is a permitted by right uses as listed in Table IV I.3.
Additional supplemental technical studies were prepared to further support that no additional project related impacts would occur as a result of the proposed project. These technical studies include additional traffic analysis, as well as a noise study. The traffic analysis results were summarized under the Traffic Improvements section of the December 5 th staff report. The noise
study that was completed concluded that noise levels associated with the project generated on- site operations would satisfy the General Plan noise criteria at the nearest existing residential uses. This is due in part to existing solid noise barriers in the vicinity, as well as overall on-site operational practices.
As this Major Design Review is consistent with the Special Planning Area and the environmental documentation prepared for the Special Planning Area, it is exempt from CEQA review. So long as the project does not have any project-specific significant effects peculiar to the Major Design Review and not identified in the previous environmental documentation, the project is exempt and no environmental document pursuant to CEQA is required. The project applicant is requesting approval of a Major Design Review for the proposed project. Additionally, under CEQA, the City lacks the discretion under the Major Design Review approval process to consider environmental effects not related to the design of the Project, including, but not limited to human health impacts from toxic air contaminants, greenhouse gas emissions, and impacts of biological resources.
NEXT STEPS
Upon conclusion of the presentation and public testimony, City Council could do one of the following:
1. Direct staff to return at a later City Council meeting with final action documents
2. Direct the applicant to make additional modifications to the proposed project.
ATTACHMENT(S)
1. Staff Report dated December 5, 2022
2. Project Plans
3. DRAFT Project Conditions
4. Letter from Miller Starr Regalia dated October 3, 2022
5. Letter from Miller Starr Regalia dated November 29, 2022
6. Letter from Miller Starr Regalia dated December 14, 2022 ITEM 18.1.
ATTACHMENT 2
City Council Staff Report – Page 9 of 9
7. Letter from Miller Starr Regalia dated January 10, 2023
8. Presentation
ITEM 18.1.
ATTACHMENT 2
Logistics/Warehouse Projects
Frequently Asked Questions
1. What is the Villages of Zinfandel Special Planning Area? The Zinfandel Special Planning Area (VOZSPA) was established by the County of Sacramento in 2000 and provides a unique set of development standards and a land use plan for a specific area in Rancho Cordova, as shown below. The VOZSPA document regulates land use and zoning, density, permitted uses, setbacks, design guidelines, and other development standards.
2. What is the Villages of Zinfandel (Stonecreek) Development Agreement? In 2003, the County of Sacramento and Elliot Homes, Inc. entered into an agreement for the future development of the Villages of Zinfandel Special Planning Area. The development agreement confers the right to proceed with the development of the property consistent with the Villages of Zinfandel Special Planning area document, including:
•Permitted uses of the property,
•Density and intensity of use,
•Maximum height and size of proposed buildings,
•Timing or phasing of development,
•Zoning,
•Provisions for reservation or dedication of land for public purposes, and •Location and size of major transportation facilities
The City amended the Development Agreement three times notably including the following language each time: “Except as expressly amended by this Amendment, all of the terms, conditions and provisions of the Development Agreement remain in force and effect.” The City noticed and processed the adoptions in accordance with the Development Agreement Law.
Presently, the Development Agreement is set to expire in June 2023.
3. How does the Sacramento County Zoning Code and the Villages of Zinfandel Special Planning Area document regulate proposed uses in the Villages of Zinfandel Special Planning Area? Because of development rights vested through the Villages of Zinfandel Development Agreement, proposed uses in this special planning area must utilize the County Zoning Code that was adopted at the time the agreement was put in place.
The permitted uses within the Villages of Zinfandel Special Planning Area document are governed by the 2003 Sacramento County Zoning Code use tables and the Villages of Zinfandel Special Planning Area provides unique design standards and requirements. For the “Light Industrial” zone of the Villages of Zinfandel SPA, permitted uses in the M-1 and MP zones of the 2003 Sacramento County Zoning Code would apply. And for the “Business Professional” zone of the Villages of Zinfandel SPA, permitted uses in the BP and MP zones of the 2003 Sacramento County Zoning Code would apply.
4. What is the Villages of Zinfandel Special Planning Area Design Guidelines? The Villages of Zinfandel Special Planning Area Design Guidelines are intended to provide design guidance in the planning, review, and approval of individual development projects within the Villages of Zinfandel SPA boundaries. The design guidelines include area-wide design concepts in site planning, circulation and access, architectural design, landscaping, and the provision of open space.
5. What are the required approval findings for Major Design Review? The City Council may approve or approve with conditions an application within the Villages of Zinfandel SPA based upon applicable non-residential development standards and architectural guidelines in the Special Planning Area found in Section 5; Subsection (D).
6. What is the California Environmental Quality Act (CEQA)? The California Environmental Quality Act (CEQA) is a statute passed in 1970 that requires analysis of discretionary development projects that potentially impact the environment. CEQA does not directly regulate land uses, but instead requires state and local agencies to analyze and publicly disclose environmental impacts of proposed projects and adopt feasible measures to mitigate those impacts.
The basic goals of CEQA:
•Inform decision makers and the public about the potential significant environment impacts
•Prevent significant, avoidable damage to the environment by requiring changes to a project
•Identify the ways that the environmental damage can be avoided or reduced •Disclose to the public the reasons why decisions are made if significant impacts occur If a project is subject to CEQA and does not qualify for an exemption, the next step is to determine whether the project may result in a significant effect on the environment. If it is unclear whether the project may have such an effect, then an initial study is conducted to determine the nature and extent of the project’s effects. If the results of an initial study reveal that the project may have a significant effect on the environment, then preparation of an Environmental Impact Report (EIR) is appropriate. If it is clear that a project will result in a significant effect on the environment and an EIR will be required, the initial study process can be skipped, and work can proceed directly on the EIR.
7. What is an Environmental Impact Report (EIR)?
Under the California Environmental Quality Act (CEQA), an Environmental Impact Report (EIR) must be prepared whenever there is substantial evidence, considering the whole record, that a project may have a significant effect on the environment. An EIR contains information on potential effects, measures to mitigate those effects, and an analysis of alternatives to the project. Generally, an EIR discusses whether a project has a significant impact on the following topics:
•Aesthetics
•Agriculture
•Air Quality (GHG)
•Biology
•Cultural
•Geology
•Hazards
•Hydrology
•Land Use
•Minerals
•Noise
•Population/Housing
•Public Services/Utilities
•Recreation
•Transportation/Traffic
8. Are the Villages of Zinfandel Special Planning Area subject to CEQA? The Villages of Zinfandel Final Environmental Impact Report (EIR) was certified by the Sacramento County Board of Supervisors in February 1998. The EIR was designated a “Master” EIR and evaluated the cumulative impacts, growth-inducing impacts, and irreversible significant effects of the environment of specific, subsequent projects according to the Sacramento County General Plan and zoning designations within the Special Planning Area. Subsequent Supplemental EIRs were completed in April 2000 and June 2002. For further detail, see the legal analysis and environmental sections in the March 6, 2023 agenda report on this item.
9. Do North Mather and Zinfandel have adequate capacity?
•The City of Rancho Cordova has adopted peak hour level of service D for roadways.
Level of service D is defined as high density but stable flow. •The capacity of North Mather at level of service D is 16,200 trips per day. Current traffic counts are about 500-600 trips per day. In 2055, North Mather is projected to carry 4,700 trips per day. North Mather is not projected to experience significant congestion at buildout.
•The capacity of Zinfandel Drive at level of service D is 54,000 trips per day. oCurrent traffic counts north of International to US-50 range from 28,700 to 47,400 trips per day. The 2055 forecasted volumes for Zinfandel Drive are 45,400 to 77,800 trips per day north of International. Zinfandel Drive north of International currently experiences, and will continue to experience, heavy congestion during peak hour travel.
oCurrently Zinfandel Drive carries approximately 17,500 trips per day between International and North Mather. In 2055, this section is projected to carry approximately 43,800 trips per day south of International. This section of Zinfandel Drive is not projected to experience heavy congestion. •The intersection of North Mather and Zinfandel has adequate capacity to serve expected uses.
10. What is the difference in trip generation and roadway maintenance for warehouse, office, retail and residential uses?
•Office, and residential generate similar number of trips (office is about 7% higher vehicle miles traveled than residential). Few to no truck trips are generated by these uses.
Industrial uses generally generate significantly less traffic (approximately 45% of vehicle miles traveled compared to residential). Industrial traffic is generally between 10% and 20% trucks in terms of trip generation.
•Retail generally generates about 24% more vehicle miles traveled relative to residential.
Some additional truck trips may also be generated.
•Warehouse/light industrial uses generate about 45% of total trips relative to office use.
Although trucks take up two to three times the space of a car, warehouse/light industrial peak hour contribution to congestion is relatively lower than office/residential because the total trips are less, and trips are spread throughout the day. However, truck trips create significantly greater wear on roadways than passenger vehicles generated by office or residential uses. Most wear on roadways is due to truck trips, followed by ongoing weathering. Warehouse uses would annex into the City’s roadway maintenance district, similar to other uses, and may also be charged an additional 25% heavy load factor to accommodate for associated additional maintenance costs.
11. How much is the maintenance district with heavy load fee? •The greater of $0.068/sf building or $432/acre site. Therefore:
i. Logisticenter = 155,040 sf x $0.068/sf = $10,543 per year.
12. Can trucks drive on Zinfandel even though it is not an STAA route? •California legal trucks may access Zinfandel, but STAA trucks cannot.
•The Surface Transportation Assistance Act defines routes for large trucks with long distance from kingpin to rear axle. These are usually, but not always, trucks with sleeper cabs. And generally, over 65 feet in length.
13. Will trucks drive on Baroque, Bear Hollow, Spoto, or other neighborhood roads? •The proposed project has conditions of approval specifying that these roads, and other neighborhood roads, cannot be driven on by trucks.
•The driveways will be designed to direct trucks to North Mather->Zinfandel->US 50, or North Mather->Mather->Femoyer->International->Mather Field Road->US 50. •The proposed project is conditioned to add additional traffic calming islands on Bear Hollow to further deter truck use (similar to those on Spoto). •If trucks drive on restricted roads they will be out of compliance with their project approval and may be issued a notice of violation or administrative citation.
14. What is the difference in trip generation and roadway maintenance for warehouse, office, retail and residential uses?
oOffice and residential generate similar amount of traffic (office is about 7% higher than residential). Few truck trips are generated by these uses. Light industrial uses generate less traffic (approximately 50% compared to office). Light Industrial traffic is generally between 10% and 20% trucks.
oRetail generally generates about 24% more traffic relative to residential. Some additional truck trips may also be generated.
oLight industrial uses generate about 50% of total trips relative to office use. Light industrial peak hour contribution to congestion is relatively lower than office/residential because the total trips are less, and trips are spread throughout the day. Truck trips create greater wear on roadways than passenger vehicles generated by office or residential uses. Light industrial uses would annex into the City’s roadway maintenance district and be charged an additional 25% load factor.
15. How much is the maintenance district with load factor? •The greater of $0.068/sf building or $432/acre site. Therefore:
i. Logisticenter = 155,040 sf x $0.068/sf = $10,543 per year.
16. Can trucks drive on Zinfandel even though it is not an STAA route? •California legal trucks may access Zinfandel, but STAA trucks cannot. •The Surface Transportation Assistance Act defines routes for large trucks with long distance from kingpin to rear axle. These are usually, but not always, trucks with sleeper cabs. And generally over 65 feet in length.
17. Will there be any further analysis for Particulate Matter specifically for Diesel Fuels? •The certified EIRs for the VOZSPA analyzed particulate matter emissions from trucks and industrial and commercial uses and required mitigation which applies to the Project. Since the Project approval is exempt from CEQA and only involves design review, no further environmental review is required. Trucks and other diesel powered equipment related to the warehouse use are subject to CARB regulations to reduce
particulate matter emissions. The Project also includes a number of features to reduce particulate emissions from diesel fuel.
18. Will Semi-Trucks and other commercial trucks be allowed to park on Bear Hollow or N. Mather Blvd?
•In addition to restrictions placed on truck routes through on-site design, “No Truck Parking” signs have been installed on N. Mather Blvd and Bear Hollow Drive. Trucks in violation of the posted signages will be cited.
19. Are Environmental Questionnaires required as part of a project submittal, and what is the effect of updates or modifications to them?
•The intent of the Questionnaire is to determine whether projects require additional CEQA analysis based on the sites existing conditions and the proposed use. This document is only requested “If Applicable” as stated on the Discretionary Entitlement Application.
•This form is typically requested for projects in areas that do not have an approved EIR and is used to determine if an initial study is required for further CEQA analysis. This document is not intended to provide any type of analysis or determination regarding CEQA requirements or exemptions.
•Updates or modifications to Environmental Questionnaires are common and do not invalidate the application.
•The Logisticenter project was determined to be consistent with the approved Villages of Zinfandel EIR upon submittal due to the use listed as an allowed use within the Sacramento County Code and therefore the Environmental Questionnaire was not requested as it was not applicable at that time for this project.
20.Is the Development Agreement (DA) required to have an annual review and does inconsistency with this review render the DA null and void?
•The Development Agreement says that a compliance review shall be performed every year. The City acknowledges that while compliance reviews have been done, they have not been done every year. In an annual review, if the City finds the developer to be out of compliance with the Development Agreement, it may initiate the process of finding the developer in default, providing the developer an opportunity to cure the default, with the City thereafter potentially amending or terminating the Development Agreement. If the City takes any of these actions, the developer is afforded an opportunity to present evidence and appeal. None of these steps have been taken by the City. Failure of the City to conduct one or more compliance reviews does not automatically terminate or amend the Development Agreement.
5308591.4
1 The Law Offices of Gloria D. Smith
48 Rosemont Place
San Francisco, CA 94103
(415) 308-9124
[email protected]
January 17, 2023
B
y E-mail and Hand Delivery
Mayor Linda Budge
Vice Mayor David M. Sander, Ph.D.
Councilmember Donald Terry
Councilmember Siri Pulipati
Councilmember Garrett Gatewood
Stacy Leitner, City Clerk
[email protected]
City of Rancho Cordova
Rancho Cordova City Council
2729 Prospect Park Drive
Rancho Cordova, CA 95670
RE
: LogistiCenter at Rancho Cordova (PLND-1021-0015) Request for Review under the California Environmental Quality Act (“CEQA”)
D
ear Mayor Budge, Honorable Council Members:
These comments were prepared on behalf of Stone Creek Residents for Smart Growth, a local organization comprised of Rancho Cordova residents concerned about the unchecked proliferation of warehouses in their community. The comments were prepared with the assistance of Dr. Petra Pless, a court-recognized expert on California air quality.
Stone Creek Residents continue to analyze the facts and law applicable to this matter and may supplement these comments as needed as the case develops.
I. Introduction
We have read Dermody Properties’ (developer) at times hyperbolic letters to the City Council claiming the Council has slow-walked its project approvals. The developer is threatening to sue Rancho Cordova should it not conform to Dermody’s ambitious timeline.
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2 However, in reality, the developer was free to file its application materials earlier if it felt an urgent need to have the project approved by a date-certain. Residents do not have the same information or resources as Dermody and have struggled over the last year to understand the myriad impacts associated with siting yet another warehouse distribution center in their community. Nonetheless, Stone Creek Residents for Smart Growth are catching up and are prepared to fully participate in the Council’s public approval process going forward.
As detailed below, Stone Creek Residents are particularly concerned about the above-referenced warehouse project proposed for Bear Hollow Drive and urge the City to conduct a proper analysis under the California Environmental Quality Act (CEQA) to investigate and disclose all potentially significant impacts resulting from the proposed project.
II. Proposed Project Description
The developer is requesting major design review to construct a 155,077 square-foot, 40-foot-tall industrial building with parking, lighting and loading docks (the project). What the project description does not detail is the size of the trucks traveling to and from the site and an estimate of the number of daily and annual trips, the timing of those trips, and a description of the adverse impacts on air quality due to emissions of air pollutants and on climate change due to emissions of greenhouse gases associated with those trips.
The developer contends the City’s hands are tied to review the project under CEQA and cannot investigate, disclose or mitigate the project’s negative impacts beyond aesthetic considerations under the City’s major design review program under City Code § 23.141. We disagree. While Dermody does hold certain contract rights allowing it to realize its reasonable development expectations, those rights are not unfettered, and cannot trump the City Council’s responsibility to protect human health and the environment.
The developer appears to be raising three overarching arguments to support its claim that the City has no role in protecting residents and the environment from the project’s adverse effects under CEQA:
1. The project is consistent with the Zinfandel Special Planning Area (ZSPA), for which Sacramento County adopted an environmental impact report (EIR) in 1998, and a supplemental EIR in 2000;
1 therefore no additional environmental review under
CEQA is necessary or permitted according to the developer;2
2. S
acramento County entered into a development agreement with the developer in 2003. That agreement binds the City’s ability to take steps to mitigate the proposed warehouse project’s impacts some twenty years hence;3 and, 1 Certified in 2003.
2 Letter to Cyrus Abher, Rancho Cordova City Manager, from Arthur Coon of Miller Star Regalia (Oct. 3, 2022). 3 Letter to the Rancho Cordova City Council from Arthur Coon of Miller Star Regalia (Nov. 29; Dec. 14, 2022).
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3 3. The City Council cannot review the project under CEQA because the City lacks discretionary power beyond certain aesthetic considerations pursuant to its major design review process.4
As shown below, these three arguments cannot stand individually nor in combination, and do not restrict Rancho Cordova from taking steps to protect nearby residents and the environment while ensuring the developer realizes its reasonable investment expectations. a. The Project Does Not Comply with CEQA Because the Information in the 25-Year-Old ZSPA EIR is Woefully Stale
The developer is attempting to bypass CEQA review on grounds the project is exempt. Specifically, it points to CEQA Guideline § 15183.5 Although this particular section falls within the enumerated exemptions to the Act, § 15183 is not a true exemption.
Instead, it allows a project to avoid environmental review if the project is “consistent with the development density established by existing zoning, community plan, or general plan policies for which an EIR was certified . . . except as might be necessary to examine whether there are project-specific significant effects which are peculiar to the project or its site.” 6 In this way, the section is not an exemption but rather a process to streamline CEQA review by avoiding the preparation of repetitive documents. Environmental review is still required for various types of impacts, including those “peculiar to the project or parcel on which the project would be located;” and those impacts which “were not analyzed as significant effects in a prior EIR on the zoning action, general plan or community plan with which the project is consistent;” that “are potentially significant off-site impacts and cumulative impacts which were not discussed in the prior EIR prepared for … the zoning action,” or “[a]re previously identified significant effects which, as a result of substantial new information which was not known at the time the EIR was certified, are determined to have a more severe adverse impact than discussed in the prior EIR.”7 Under subsection (f), a project’s environmental effects are not peculiar to a project if “uniformly applied development policies or standards have been previously adopted” which serve to mitigate environmental impacts, “unless substantial new information shows that the policies or standards will not substantially mitigate the environmental effect.” There is substantial evidence showing the project will have significant impacts on the environment which were not addressed in the ZSPA. A CEQA exemption under §15183 does not apply here, and the City must prepare appropriate CEQA documents to incorporate all substantial new information, regulations and changed circumstances from 2000 to the present.
4 Letter to Cyrus Abher from Arthur Coon (Oct. 3, 2022). 5 CEQA Guidelines § 15183(a).
6 Id. (emphasis added).
7 CEQA Guidelines § 15183(b).
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4 The requirement to keep information fresh is consistent throughout CEQA. In addition to Guideline § 15183, the statute and Guidelines make clear agencies must update their EIRs whenever “new information, which was not known and could not have been known at the time the environmental impact report was certified as complete, becomes available.8 There is no question Rancho Cordova and this particular community have changed dramatically in the last 22 years since the supplemental EIR was adopted.
Likewise, environmental laws, regulations, and standards have been updated and made more stringent. For example, California began regulating greenhouse gas emissions with Assembly Bill 32 (AB 32) in 2006. AB 32 required the California Air Resources Board (CARB) to establish in 2008 a statewide greenhouse gas emissions cap for 2020.9 In 2007, California expressly recognized the need to analyze greenhouse gas emissions as a part of the CEQA review process with Senate Bill 97 (SB 97). SB 97 required the Office of Planning and Research to develop, and the California Natural Resources Agency (Agency) to adopt, amendments to the CEQA Guidelines addressing the analysis and mitigation of greenhouse gas emissions. Those amendments became effective on March 18, 2010. In late 2018, the Agency finalized amendments to the CEQA Guidelines, including changes to CEQA Guidelines section 15064.4, which addresses the analysis of greenhouse gas emissions. The amendments became effective on December 28, 2018.
In addition, CARB and the Sacramento Metropolitan Air Quality Management District have since adopted numerous legal standards and regulations applicable to stationary and mobile sources. For example, in 2002, CARB adopted revisions to the state ambient air quality standard for particulate matter equal to or smaller than 10 micrometers (PM10) and established a new annual ambient air quality standard for particulate matter equal or smaller than 2.5 micrometer (PM2.5). Subsequently, CARB adopted revisions to the ambient air quality standards for ozone and nitrogen dioxide, which went into effect on May 17, 2006 and March 20, 2008, respectively, along with ground-level ozone and nitrogen.10 None of these standards were (or could have been) analyzed in the City’s prior EIRs.
Furthermore, Sacramento County prepared the 1998 ZSPA because Rancho Cordova had not yet incorporated as a city. As such, the 1998 EIR did not analyze all of the potentially significant impacts associated with building out a new municipality and balancing all of the various land uses. Since 2003, the City has carried out haphazard plans to site an elementary school and hundreds of homes in close proximity to new warehouse distribution facilities across its sphere of influence. The size, number and nature of these
8 CEQA at § 21166; Guidelines § 15162(3).
9 https://ww2.arb.ca.gov/resources/fact-sheets/ab-32-global-warming-solutions-act-2006. 10 See https://ww2.arb.ca.gov/resources/california-ambient-air-quality-standards.
ITEM 18.1.
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5 industrial facilities were not known in 1998 because ubiquitous online shopping driving the explosion of these large warehouses could not have been known in 1998 or 2000.11 The City Council must make a determination on the record that addresses the environmental impacts “peculiar to the project.” According to air quality expert Dr. Petra Pless, there are numerous impacts that are specific to this project that were not addressed or mitigated by any of the City’s policies or standards in 1998 or 2000. For example, greenhouse gas emissions from the project’s truck traffic may exceed the CEQA significance threshold established by SMAQMD of 10,000 metric tons per year.
Similarly, the incremental increase in cancer risk due to toxic diesel particulate matter emissions in truck combustion exhaust, which were not assessed in the prior EIR, may exceed SMAQMD’s CEQA significance thresholds for residents and school children of 10 in one million. Nor does it appear that, in the alternative, the City found that the project’s impact “has been addressed as a significant effect in the prior EIR, or can be substantially mitigated by the imposition of uniformly applied development policies or standards.”
12 As shown above, the 1998 EIR and 2000 supplemental EIR are entirely out of date and omit the residential buildout adjacent to the project site, and changes in air quality and GHG emission regulations, among other things.
Finally, the City Council must explain whether the Project meets the requirements of § 15183(j) which provides: “This section does not affect any requirement to analyze potentially significant offsite or cumulative impacts if those impacts were not adequately discussed in the prior EIR.” The record does not show that the Council has analyzed new impacts specific to this project that were not included in the ZSPA EIR. Instead, the Council has limited its discussion to project aesthetics. However, with an intensive industrial use such as a warehouse distribution center, the City has yet to address the issue of the substantial increase in truck traffic due to the project and associated combustion exhaust emissions, which include toxic diesel particulate matter, carbon monoxide, ozone precursors and other air pollutants and the resulting impacts on local (and regional) air quality. These project emissions would occur in close proximity to Navigator Elementary School and residences, exacerbated by the cumulative effects of numerous other warehouse projects in the vicinity and region.
Given the foregoing, even if the ZSPA had generally discussed the effects of industrial zoning, its outdated analyses which did not anticipate the explosion of warehousing due to online commerce, does not exempt this project from CEQA. In light of its woefully stale EIR, the City Council must conduct CEQA review for the project.
11 The 2000 SEIR did analyze significant and unavoidable on: (a) air quality due to vehicular ROG and NOx emissions; and, (b) traffic and circulation due to additional 75,630 daily vehicle trips. 12 Id. at § 15183(c).
ITEM 18.1.
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6 b. Development Agreements Are Subject to CEQA Review
There is no dispute that development agreements are projects under CEQA and the developer does not dispute this fact.13 The existence of Dermody’s development agreement does not in any way limit the City’s obligations under CEQA; rather it is an underlying fact in this case.
c. The City May Not Rely on its Own Major Design Review Ordinance to Avoid Investigating the Proposed Warehouse’s Potentially Significant Environmental Impacts under CEQA
Dermody’s counsel has not been particularly clear on its position on the City Council’s CEQA obligations. On the one hand it opined that the project “qualifies for a streamlining exemption under CEQA Guidelines Section 15183.”14 But on the other hand, and in the same letter, it urged the City Council to scotch CEQA Guidelines Section 15183 altogether:
“Here, the City’s Major Design Review process expressly limits the City’s discretion to deny or condition approval of the Design Review Project based solely on the effects of its design components, not other effects of the previously authorized uses and density and intensity of those uses at the site. In other words, the City is not at liberty to use its limited design review authority to revisit environmental issues previously analyzed and laid to rest by the prior certified ZSPA EIR.” 15 Dermody’s first position is the closest to being accurate; however, as shown above in section II(a), the City is not shielded from conducting CEQA review under Guidelines Section 15183. This is because there is substantial evidence of potentially significant impacts that were not analyzed as significant effects in the 1998 SZPA EIR and 2000 supplemental EIR.
The caselaw Dermody cited for the proposition that municipalities that have adopted design review ordinances are shielded from CEQA review are inapposite to the facts and law here and do not apply here.16 This is because the caselaw cited by the developer upholding design review ordinances contained numerous factual and legal predicates that do not exist in this case.
In the Friends of Davis and McCorkle cases, both cities were extremely proactive in keeping their general plans and other zoning documents up to date and responsive to the changing conditions in each town. For example, the City of St. Helena in the McCorkle case had just updated its housing element in 2015 and the application at issue in the case was
13 See Save Tara v. City of West Hollywood (2008) 45 Cal.4th 116. 14 Letter to Cyrus Abhar from Arthur Coon (Oct. 03, 2022). 15 Id.
16 To be clear, Stone Creek Residents do not dispute that cities’ design review ordinances allow municipalities to place aesthetic conditions on projects to ensure consistency with their zoning plans.
ITEM 18.1.
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7 filed in 2016.17 The city could show the planning documents accurately reflected current conditions and regulations. In Friends of Davis, the record showed that the city had adopted and revised the relevant land use planning documents in 1987, 1993, 1994, 1995 and 1996.18 The application at issue in the case was filed in 1997; therefore, the City’s decisions were grounded in recently adopted analyses.19 These scenarios are in stark contrast to what has transpired here. The relevant planning documents are two decades old and no longer reflect changes in environmental regulations and are not responsive to the myriad changes that have occurred in the years since Rancho Cordova incorporated as a city and began growing.
Next, in both Friends of Davis and McCorkle, the plaintiffs had raised concerns that were within the purview of and could be competently addressed by the respective design review teams under the design review ordinances. In Friends of Davis, residents were concerned about who could own a retail book shop; in McCorkle, plaintiffs complained about an eight-unit residential development. These concerns could be dealt with by the design review teams. The courts sided with the cities because the types of impacts the residents were raising were not the types of environmental impacts that CEQA could address (e.g., who can own a bookstore, whether storm drains are adequate and whether firetruck turnarounds are large enough). In other words, CEQA review would have not been duplicative of the design review teams’ work; rather, CEQA simply had no mechanism for addressing such concerns.20
The facts here are starkly opposite. To date, residents have not focused on the aesthetic concerns of the warehouse proposal. Instead, the impacts identified in this letter and those raised with the City in 2022 are far more serious and simply beyond the expertise of the design review ordinance’s purview. A CEQA document analyzing the environmental impacts not included in the 1998 EIR is the only mechanism for understanding this projects’ construction, operational and cumulative environmental impacts. Dermody inadvertently agreed in its October letter when it asserted that the City may not “revisit environmental issues previously analyzed and laid to rest by the prior certified ZSPA EIR.” Stone Creek Residents agree that the City need only analyze all of the new circumstances and environmental laws and regulations that were not included in the 1998 or 2000 EIRs, because the record is clear that the 1998 policies and standards cannot mitigate the potentially significant effects this project would cause. 17 McCorkle Eastside Neighborhood Group v. City of St. Helena (2018) 31 Cal.App.5th 80, 86. 18 Friends of Davis v. City of Davis, (2000) 83 Cal.App.4th 1004, 1008-10. 19 Id. at p. 1011.
20 “While local laws do not preempt CEQA, aesthetic issues like the one raised here are ordinarily the province of local design review, not CEQA.” “Where a project must undergo design review under local law, that process itself can be found to mitigate purely aesthetic impacts to insignificance, even if some people are dissatisfied with the outcome. A contrary holding that mandated redundant analysis would only produce needless de lay and expense.” McCorkle at p. 94.
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8 III. Conclusion
The City cannot rely on its design review ordinance to avoid investigating the potentially significant impacts this project would have on the environment, nor can the City assert a CEQA exemption under Guidelines § 15183. Instead, the City must prepare a thorough CEQA analysis to update the wholly inadequate planning documents under which the City has been operating for more than 20 years. Thank you for considering these comments and do not hesitate to contact me with any questions.
By: Gloria D. Smith
ITEM 18.1.
ATTACHMENT 4
1 The Law Offices of Gloria D. Smith
48 Rosemont Place
San Francisco, CA 94103
(415) 308-9124
[email protected]
J
anuary 27, 2023
B
y E-mail
[email protected]
Mayor Linda Budge
Vice Mayor David M. Sander, Ph.D.
Councilmember Donald Terry
Councilmember Siri Pulipati
Councilmember Garrett Gatewood
Rancho Cordova City Council
2729 Prospect Park Drive
Rancho Cordova, CA 95670
RE: LogistiCenter at Rancho Cordova (PLND-1021-0015), Second Request for Review under the California Environmental Quality Act (“CEQA”) and Land Use Compliance D
ear Mayor Budge, Honorable Council Members:
This second comment letter was prepared on behalf of Stone Creek Residents for Smart Growth. As was apparent at the January 17, 2023 City Council hearing, Stone Creek Residents are concerned about the unchecked proliferation of warehouses in their community. This letter was prepared with the assistance of Dr. Petra Pless, a court- recognized expert in California air quality and other environmental matters. Stone Creek Residents continue to analyze the facts and law applicable to this case and may supplement these comments as needed as the case continues.
This letter concerns Dermody’s claim that a development agreement for the Villages of Zinfandel Special Plan Area (“ZSPA”) extends through June 2023; and as such, the developer has an unencumbered right to construct the project which is located within the ZSPA. However, as shown below, Stone Creek Residents have not been able to verify Dermody’s claims on the validity of the development agreement. In addition, Dr. Pless has determined the project as proposed would cause potentially significant unmitigated impacts that the City must analyze and disclose to the public prior to project approval.
ITEM 18.1.
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2 I. The 2003 Development Agreement Dermody Relies Upon Has Long Expired and Is No Longer in Effect
According to Dermody, the City’s ability to exercise discretion over the warehouse project is governed and constrained by vested rights under a development agreement that relates to the entire ZSPA entered into on May 28, 2003 by Elliott Homes, Inc., and the County of Sacramento. Dermody claims this development agreement is valid from the effective date of June 28, 2003 for a period of 20 years, i.e., until June 27, 2023. 1 Dermody
goes to great lengths in a November 29, 2022 letter to the City describing the City’s duties and obligations under the agreement. In that letter, Dermody’s counsel correctly acknowledged that the agreement is subject to Gov. Code Section 65865.3, which governs the transfer of development agreements between government agencies in the event of incorporation or annexation.
2 Here is Gov. Code Section 65865.3(a):
Except as otherwise provided in subdivisions (b) and (c), Section 65868, or Section 65869.5, notwithstanding any other law, if a newly incorporated city or newly annexed area comprises territory that was formerly unincorporated, any development agreement entered into by the county prior to the effective date of the incorporation or annexation shall remain valid for the duration of the agreement, or eight years from the effective date of the incorporation or annexation, whichever is earlier. The holder of the development agreement and the city may agree that the development agreement shall remain valid for more than eight years, provided that the longer period shall not exceed 15 years from the effective date of the incorporation or annexation.
Consistent with this language, after transfer to the City, the 2003 development agreement was limited by law to a maximum of eight years after the effective date of the City’s incorporation on July 1, 2003, unless the City entered into a new agreement with the applicant agreeing to extend it to 15 years. This did not happen for the portion of the site where the project would be located. Either way, both the 8-year and the 15-year duration provided by law for transfer of a development agreement from a county to a newly incorporated city are long past. Therefore, the 2003 development agreement has long expired and is no longer valid.
Furthermore, under subsection (c), “this section [Section 65865.3] only applies to development agreements which meet all of the following requirements:
1 Letter to City of Rancho Cordova from Arthur Coon of Miller Star Regalia, at p. 4 (Nov. 29, 2022). 2 Id. at footnote 2 (“The City formally incorporated on July 1, 2003. However, the time limits set forth in Government Code section 65865.3 on the effectiveness of development agreements (8 to 15 years) from the date of incorporation of affected land into a new city do not apply because the election on incorporation of the City in November 2002 occurred before the parties entered into the Development Agreement in June 2003. (See Gov. Code, § 65865.3 (c)(2).”)
ITEM 18.1.
ATTACHMENT 5
3 (1) The application for the agreement is submitted to the county prior to the date that the first signature was affixed to the petition for incorporation or annexation pursuant to Section 56704 or the adoption of the resolution pursuant to Section 56800, whichever occurs first.
(2) The county enters into the agreement with the applicant prior to the date of the election on the question of incorporation or annexation, or, in the case of an annexation without an election pursuant to Section 57075, prior to the date that the conducting authority orders the annexation.
(3) The annexation proposal is initiated by the city. If the annexation proposal is initiated by a petitioner other than the city, the development agreement is valid unless the city adopts written findings that implementation of the development agreement would create a condition injurious to the health, safety, or welfare of city residents.”3 Stone Creek residents are operating with incomplete information because they do not have access to all of the original documents that the parties to the agreement have and were required to maintain. These files would verify the chain of events that unfolded between Sacramento County and Elliott Homes. Likewise, it would have been helpful had Dermody’s counsel fully addressed this critical threshold issue beyond a cursory statement in a letter’s footnote. Nevertheless, a plain reading of Section 65865.3(c)(2) makes clear that the development agreement was null and void from the date of the election for incorporation of the City. Here is the chronology as Stone Creek understands it and Dermody has confirmed:
1. “The date of the election on the question of incorporation” for Rancho Cordova was November 5, 2002.
2. The original 2003 development agreement for the ZSPA was signed by both Sacramento County and Elliott Homes on May 28, 2003 for a 20-year term. 4 On the
same day, the County adopted the corresponding ordinance, specifying that the development agreement would take effect 30 days thereafter. 5 3. Thereafter, on July 1, 2003, the City of Rancho Cordova officially incorporated, placing the ZSPA within City limits. 6
3 Cal. Gov. Code § 65865.3.
4 The Villages of Zinfandel Development Agreement, entered into as of May 28, 2003, by and between Elliott Homes, Inc. and the County of Sacramento.
5 County of Sacramento, Ordinance No. SZC-2003-0011, An Ordinance Adopting a Development Agreement between the County of Sacramento and Elliott Homes, Inc. Relating to a Development Known as “Villages of Zinfandel,” May 28, 2003.
6 Rancho Cordova, About Our City; available at: https://www.cityofranchocordova.org/departments/about- our-city.
ITEM 18.1.
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4 The operative date, which Dermody agrees with, is “the date of the election on the question of incorporation.” This date, November 2, 2002, occurred before the County and Elliott Homes entered into the development agreement and the City adopted the corresponding ordinance on May 28, 2003, meaning the agreement does not satisfy at least one of the statute’s three requirements for a valid transfer from Sacramento County to the newly incorporated City of Rancho Cordova. Again, Stone Creek Residents do not have the necessary documents to evaluate compliance with the other two statutory requirements, but Dermody has failed at least one of the mandatory criteria.
The California legislature’s mandate to limit transferred development agreements to eight years makes for good public policy. Newly formed cities should be free to make their own land use decisions and not be encumbered for decades by another agency’s choices on land over which that agency no longer has jurisdiction or management responsibilities. In this case, it appears Sacramento County rushed to saddle newly-incorporated Rancho Cordova with a development agreement for which the City had no input. Dermody’s November, 2022 letter underscored the County’s and Elliott Home’s attempt to hamstring Rancho Cordova for two decades: “The Development Agreement relates to the entire approximately 671.39-acre ZSPA and has a term of twenty (20) years from its effective date of June 28, 2003. Its purpose is to facilitate the phased development of the comprehensively planned ZSPA, including a complementary mix of residential, light industrial, business professional (including industrial office parks), and commercial uses.” 7 The whole point of the development agreement between the County and Elliott Homes was to constrain, for a generation, the ability of the newly-formed City to propose its own land use priorities.
I n any case, the 2003 development agreement was not legally transferred to the City; but even if the transfer had been legal, it has long expired. Consequently, Dermody’s warehouse project requires a discretionary conditional use permit and must adhere to the legal requirements that apply to all other land use projects. 8 II. Because the Development Agreement is No Longer in Effect, the Project Must Comply with California Land Use Laws
The proposed warehouse project must proceed under an application for a conditional use permit. The foregoing analysis, Stone Creek Residents’ letter of January 17, 2023, and Dr. Pless’s additional technical analyses below, show that the project is not protected by a development agreement; and, it could cause significant environmental impacts the analyses of which is not within the design review team’s responsibilities.
Likewise, it is not the design review team’s responsibility to evaluate the project’s consistency with California land use planning requirements.
7 November 2022 letter to City of Rancho Cordova from Arthur Coon at p. 4. 8 Stone Creek Residents’ January 17, 2023 letter sets out why the warehouse project is not eligible for a CEQA exemption. Those arguments are herein incorporated by reference.
ITEM 18.1.
ATTACHMENT 5
5 A ccordingly, the developer is required to submit an application for a conditional use permit along with a full CEQA checklist evaluation under CEQA Guidelines Appendix G. But any CUP preliminary review would quickly be hampered by the City’s legally deficient planning documents. Before the project could proceed with approval, the City would need to update its general plan and ZSPA.
a. The City’s General Plan Does Not Adequately Address Current State Laws and Standards
Since 1971, municipalities have been required to have legally sufficient general plans with all of the mandatory elements reflecting current state laws, regulations and standards.9 A general plan must be integrated and internally consistent among its elements and within each element.10 If a general plan is inconsistent, a court will find it legally inadequate, and any required findings of consistency for land use approvals must be overturned.11
Relevant to this case is the well-settled principle that a municipality may only approve a conditional use permit when its general plan is “in compliance with governing [state] statutes.” 12 Put differently, a city may not grant a conditional use permit unless the use is consistent with a lawful general plan.13 If the general plan fails to provide required criteria relevant to the use sought by the permit, there is no valid measure by which the municipality can evaluate a permit application.14
Beneath the general plan are zoning ordinances that regulate the allowed uses on particular parcels such as special use areas, such as the ZSPA, or specific plans.15 These documents must be consistent with a legally defensible general plan.16 This means the City of Rancho Cordova must make its land use decisions under a defensible general plan with elements that reflect current laws, policies, and regulations for air quality, greenhouse gas emissions, traffic and circulation, and noise, among other elements.
The City’s general plan was adopted in 2006.17 While a few elements have been updated since, many are woefully out of date. Specifically, the General Plan’s air quality element has not been updated since 2006, and, therefore, does not address compliance with a number of new and/or lower national and state ambient air quality standards
9 Curtin’s Land Use and Planning Law, 13th Ed. (2010) at p. 22. 10 Gov. Code § 65300.5.
11 Neighborhood Action Group v. County of Calaveras (1984)156 Cal.App.3d 1176, 1185; See also Curtin’s Land Use and Planning Law at p. 24.
12 Neighborhood Action Group at 1185.
13 Id.
14 Id.
15 Resource Defense Fund v. County of Santa Cruz (1982) 133 Cal.App.3d 800. 16 Curtin, at p. 25.
17 City of Rancho Cordova, General Plan; available at:
https://www.cityofranchocordova.org/departments/community -development/planning/planning-division- document-library.
ITEM 18.1.
ATTACHMENT 5
6 (“NAAQS” and CAAQS”) that have since been promulgated. These include the 2007 1-hour and annual CAAQS for nitrogen dioxide (“NO2”), the 2010 1-hour NAAQS for NO2, the 2012 annual and 24-hour NAAQS for particulate matter equal to or smaller than 2.5 micrometers (“PM2.5”), and the 2015 8-hour NAAQS for ozone.18,19 In addition, the attainment status of the Sacramento Valley Air Basin and Sacramento County laid out in the 2006 General Plan air quality element does not reflect these new or lower ambient air quality standards nor does it reflect the current attainment status with prior NAAQS and CAAQS.
Similarly, the City’s General Plan does not address climate change and greenhouse gas emissions. By enacting Senate Bill 97 (“SB 97”) in 2007, California’s lawmakers expressly recognized the need to analyze greenhouse gas emissions as a part of the CEQA process. SB 97 required the state’s Office of Planning and Research (“OPR”) to develop, and the California Natural Resources Agency to adopt, amendments to the CEQA Guidelines addressing the analysis and mitigation of greenhouse gas emissions. Those amendments became effective on March 18, 2010. In late 2018, the Agency finalized amendments to the CEQA Guidelines, including changes to CEQA Guidelines section 15064.4, which addresses the analysis of greenhouse gas emissions.
Finally, the state’s GHG and climate amendments became effective on December 28, 2018.
20 The 2017 Climate Change Scoping Plan published by the California Air Resources Board (“CARB”) describes California’s strategy for achieving the 2030 greenhouse gas emissions reduction target established by Senate Bill 32. The Scoping Plan also recognized the critical and complementary role of local governments in achieving the State’s climate goals. 21 OPR’s General Plan Guidelines, Chapter 8, on climate change provide specific guidance for cities and counties on how a general plan or climate action plan must be consistent with CEQA Guidelines section 15183.5(b), entitled Plans for the Reduction of Greenhouse Gas Emissions.22 (the City, late to the party, is currently in the process of developing its climate action plan.23)
18 California Air Resources Board, History of California’s Ambient Air Quality Standards; available at:
https://ww2.arb.ca.gov/resources/documents/history-californias-ambient-air-quality-standards; and. 19 U.S. Environmental Protection Agency, Timeline of Nitrogen Dioxide (NO 2) National Ambient Air Quality Standards (NAAQS); https://www.epa.gov/no2-pollution/timeline-nitrogen-dioxide-no2-national-ambient- air-quality-standards-naaqs; Timeline of Particulate Matter (PM) National Ambient Air Quality Standards (NAAQS) ; https://www.epa.gov/pm-pollution/timeline-particulate-matter-pm-national-ambient-air-quality- standards-naaqs; and Timeline of Ozone National Ambient Air Quality Standards (NAAQS); available at:
https://www.epa.gov/ground-level-ozone-pollution/timeline-ozone-national-ambient-air-quality-standards- naaqs.
20 OPR, CEQA & Climate Change; available at: https://opr.ca.gov/ceqa/ceqa -climate-change.html. 21 CARB, California’s 2017 Climate Change Scoping Plan, The Strategy for Achieving California’s 2030 Greenhouse Gas Target, November 2017, at 97; available at:
https://ww2.arb.ca.gov/sites/default/files/classic/cc/scopingplan/scoping_plan_2017.pdf . 22 General Plan Guidelines and Technical Advisories, Chapter 8, Climate Change; available at:
https://opr.ca.gov/planning/general-plan/guidelines.html. 23 City of Rancho Cordova, Climate Action Plan; available at:
https://www.cityofranchocordova.org/residents/community-topics/climate-action-plan.
ITEM 18.1.
ATTACHMENT 5
7 OPR’s Guidelines can also be used to update older plans so they comply with the criteria in Section 15183.5(b).24
To comply with state law, the City is required to update the air quality and circulation elements in its general plan and adopt a climate action plan. The City has not done so, and therefore, cannot evaluate the proposed warehouse until these deficiencies are corrected. This is because there is substantial evidence the proposed warehouse project would have adverse impacts on air quality, and would undermine the state’s climate goals.
For any project-specific CEQA documents the City prepares, it must analyze and disclose inconsistencies between the general plan, specific plans, and regional plans. This is because deficiencies in the general plan will affect the legal adequacy of the CEQA document.25 An agency cannot review a project under CEQA if it lacks a legally sufficient and complete general plan and local zoning ordinances.26 Finally, the process of updating a general plan’s elements also requires CEQA review.27
As shown below, the proposed project would result in significant adverse impacts on air quality and greenhouse gas emissions.
b. The Project Does Not Comply with CEQA Because the Information in the Decades-Old EIR and Supplemental EIR for the ZSPA Is Unlawfully Stale The Applicant and the City assume that any impacts associated with the project were fully analyzed and all feasible mitigation was required in the 1998 EIR and the 2000 supplemental EIR for the ZSPA (General Plan Amendment, Community Plan Amendment, Rezone, Tentative Subdivision, Tentative Parcel Map, and Development Agreement.28 Like the City’s General Plan, these CEQA documents are woefully dated. There is substantial evidence the project would have negative impacts on air quality and greenhouse gas emissions that were not analyzed or adequately mitigated in the 1998 and 2000 CEQA documents.
According to Dr. Pless, emissions associated with project construction and operation would exceed applicable CEQA thresholds of significance established by the Sacramento Metropolitan Air Quality Management District (“SMAQMD”) for PM10, PM2.5, and greenhouse gases. Thus, the project would result in significant and unmitigated adverse impacts on air quality and undermine the state’s climate goals,
24 Id. at 222.
25 CEQA Guideline § 15125(d).
26 Curtin at p. 23.
27 Pub. Resources Code §§ 21000, et seq.; see also CEQA Guidelines § 15378. 28 See, for example, Nicholas Sosa and Darcy Goulart, City of Rancho Cordova, Logisticenter at Rancho Cordova, PLND-1021-0015 Major Design Review, December 5, 2022, p. 8, and Staff Re port on Logisticenter at Rancho Cordova Major Design Review - PLND-1021-0015, July 18, 2022.
ITEM 18.1.
ATTACHMENT 5
8 Dr. Pless prepared emission estimates for the project with the California Emissions Estimator Model (“CalEEMod”)29 based on project-specific assumptions (for example, 150,076-square foot building, 1.78-acre project site, trip generation estimate of 755 trips/day from Dermody’s traffic study, 10,000 cubic yard soil import, 1,000 cubic yard cut/fill, etc., and otherwise relying on model default assumptions). Emissions of PM10 and PM2.5 during both construction and operation of the project would exceed the SMAQMD’s respective quantitative CEQA significance thresholds of zero (0) pounds per day (“lbs/day”).30 The project does not propose to implement all feasible best available control technologies (“BACT”) or best management practices (“BMPs”) and, thus, is not eligible for the SMAQMD’s alternate significance thresholds of 80 lbs/day and 14.6 tons per year (“tons/year”) for PM10 and 82 lbs/day and 15 tons/year for PM2.5. Thus, the project would result in significant impacts on air quality due to particulate matter emissions that are not mitigated.
Next, the project is not consistent with the operational significance threshold for greenhouse gas emissions established by the SMAQMD, which requires a demonstration of consistency with the Climate Action Scoping Plan by implementing applicable BMPs or equivalent on-site or off-site mitigation. To comply with the SMAQMD’s requirements, all projects must implement, at a minimum, Tier 1 BMPs, which require no natural gas infrastructure at the project (BMP 1) and electric vehicle readiness (BMP2), 31 which the
project fails to demonstrate. In addition, the 1998 and 2000 EIRs found significant unavoidable impacts on air quality after implementation of all feasible mitigation measures that were acceptable 20 years ago.32 Many additional feasible mitigation measures became routinely available after adoption of these decades-old documents which must be required to mitigate the project’s significant adverse impacts (and all other current and future projects within the ZSPA). For example, the wide-spread availability of electric vehicles, including industrial trucks, was not even on the horizon 20 years ago; nor had the state incorporated the now-routine requirement that agencies analyze and mitigate significant greenhouse gas emissions in all CEQA documents.
29 CalEEMod is a statewide land use emissions computer model designed to provide a uniform platform for government agencies, land use planners, and environmental professionals to quantify potential criteria pollutant and greenhouse gas emissions associated with both construction and operations from a variety of land use projects. Model is available at: http://www.aqmd.gov/caleemod/home and https://www.caleemod.com/.
30 SMAQMD, available at:
https://www.airquality.org/LandUseTransportation/Documents/CH2ThresholdsTable4 -2020.pdf. 31 SMAQMD Greenhouse Gas Thresholds/Best Management Practices Applicability4/24/2020, revised 9/23/2020; available at:
https://www.airquality.org/LandUseTransportation/Documents/Ch6GHGBMPApplicabilityFlowChart9 -23- 2020.pdf.
32 Sacramento County, Final Environmental Impact Report, Volume I, Village of Zinfandel General Plan Amendment, Community Plan Amendment, Rezone, Tentative Subdivision, Tentative Parcel Map and Development Agreement, Control Number: 95-GPB-CZB-PMR-SDB-DGB-ZOB-0533, January 1998, at 14, and Final Environmental Impact Report, Volume I, March 2000, at 1.14 and 1.15.
ITEM 18.1.
ATTACHMENT 5
9 Stone Creek Residents are developing evidence of additional environmental impacts analyses on other aspects of the warehouse projects. Dr. Pless will supplement her work as new information becomes available.
III. Conclusion
This letter shows, based on limited publicly-available information, that the development agreement between Elliott Homes and Sacramento County was not legally transferred to the City. Or, at best, the agreement expired long ago. As a consequence, the proposed warehouse project is subject to authorization under a conditional use permit application for which the City must investigate and disclose the potentially significant impacts Dr. Pless has raised. Please contact me if you have questions about this letter.
THE LAW OFFICES OF GLORIA D. SMITH
Gloria D. Smith
ITEM 18.1.
ATTACHMENT 5
1 The Law Offices of Gloria D. Smith
48 Rosemont Place
San Francisco, CA 94103
(415) 308-9124
[email protected]
February 13, 2023
B
y E-mail
[email protected].
Mayor Linda Budge
Vice Mayor David M. Sander, Ph.D.
Councilmember Donald Terry
Councilmember Siri Pulipati
Councilmember Garrett Gatewood
Rancho Cordova City Council
2729 Prospect Park Drive
Rancho Cordova, CA 95670
RE: LogistiCenter at Rancho Cordova (PLND-1021-0015)
Dear Mayor Budge, Honorable Council Members:
This letter clarifies Stone Creek Residents for Smart Growth’s January 27, 2023 letter concerning the validity of the development agreement under which Dermody asserts the proposed warehouse project would be covered. To recap, the Government Code specifies that newly incorporated cities generally inherit development agreements negotiated by counties where the county entered into the agreement before the election for incorporation of the new city.
1 That was not the order of events here; instead, Sacramento County and Elliott Homes entered into the agreement on May 28, 2003 after the election for incorporation occurred on November 5, 2002. Because the chain of events conflicts with the statute, the inheritance provisions under the statute never applied. The Institute of Local Self Government, a nonprofit research arm of the League of California Cities, explains the threshold legal requirements:
“The development agreement law provides that cities generally inherit development agreements negotiated by counties for newly incorporated or newly annexed areas. See Cal.
Gov’t Code § 65865.3(a) (for incorporations, the effective date of the incorporation must be after January 1, 1987). The development agreement must meet the following requirements, however:
1 Gov’t Code § 65865.3(a) and (c).
ITEM 18.1.
ATTACHMENT 6
2 • The application for the agreement must have been submitted before the first signature was placed on the petition for annexation or incorporation (or resolution initiating such proceedings);
• The agreement must have been entered into prior to the incorporation/annexation election (or prior to the date on which the conducting authority ordered the annexation); and
• The annexation is initiated by the city (or, if initiated by someone else, the city does not adopt written findings that the development agreement is injurious to the health, safety or welfare of city residents. See Cal. Gov’t Code § 65865.3(c) and (d). The duration of such inherited development agreements is the duration of the agreement or eight years, whichever is shorter. See Cal. Gov’t Code § 65865.3(a).”
2 The Elliott Homes development agreement did not meet all of the above requirements, so Rancho Cordova did not inherit the County’s agreement (If a development agreement was finalized after the incorporation of a new city, then the new city itself would be the proper governmental signatory in the first instance.).
Ignoring that the statute disallowed inheritance of the development agreement, in 2004, the City amended the agreement’s duration to 15 years (presumably in accordance § 65865.3(a)). However, that amendment cannot save the agreement either because the longest statutorily allowed extension is limited to 15 years.3 The City’s 2016 attempt to revert the duration of the development agreement to the original term of 20 years was inconsistent with the statute.4 So, even under the most expansive reading of the law, the agreement expired in 2018. Dermody must submit to the City an application for a conditional use permit if it intends to pursue its project.
THE LAW OFFICES OF GLORIA D. SMITH
Gloria D. Smith
2 https://www.ca-ilg.org/sites/main/files/file-attachments/resources__FinalDevAgreement4-5-02.pdf 3 See Govt Code Section 65865.3(a). (“Except as otherwise provided in subdivisions (b) and (c), Section 65868, or Section 65869.5, notwithstanding any other law, if a newly incorporated city or newly annexed area comprises territory that was formerly unincorporated, any development agreement entered into by the county prior to the effective date of the incorporation or annexation shall remain valid for the duration of the agreement, or eight years from the effective date of the incorporation or annexation, whichever is earlier. The holder of the development agreement and the city may agree that the development agreement shall remain valid for more than eight years, provided that the longer period shall not exceed 15 years from the effective date of the incorporation or annexation.”)
4 See Ordinance No. 6-2016.
ITEM 18.1.
ATTACHMENT 6
DEVELOPMENT AGREEMENT MANUAL:
Collaboration in Pursuit of Community Interests
ITEM 18.1.
ATTACHMENT 6
ABOUT THE INSTITUTE FOR L OCAL SELF GOVERNMENT
This publication is a special project of the Institute for Local Self Government, which is the nonprof it research arm of the League of California Cities. The Institute was founded in 1955 as an educational organization to promote and strengthen the processes of local self government. The Institute’s mission is to serve as a source of independent research a nd information that supports and improves the development of public policy on behalf of California’s communities and cities.
The Institute’s work is concentrated in three areas:
• Land Use
• Fiscal Issues
• Public Confidence in Local Government
For more inform ation about the Institute and its programs, please visit the Institute’s website at www.ilsg.org
.
ABOUT THE COMMUNITY LAND USE PROJECT
The Institute’s work in the land use area is known as the Community Land Use Project. The goal of this effort is to assist local agencies in finding solutions to land and resource issues that appropriately balance private and public interests in community and property. The project focuses primarily on an area of the law known as “regulatory takings,” but the project also addresses other issues that pose significant challenges for public agencies.
The Community Land Use Project is developing a number of resources —such as this publication—that are designed to help local officials implement their land use programs. The project is grateful for the generous support of the David and Lucile Packard Foundation and the League of California Cities.
ITEM 18.1.
ATTACHMENT 6
DEVELOPMENT AGREEMENT MANUAL:
COLLABORATION IN PURSUIT
OF COMMUNITY INTERESTS
Prepared by David J. Larsen, City Attorney, Loomis; Berding & Weil, LLP
With Special Thanks to the Following Individuals
Who Contributed Their Time and Expertise to
This Manual:
William Curley
Attorney
Richards, Watson & Gershon
Craig Ewing
Director of Community Development
City of Belmont
Vince Bertoni
Planning Manager
City of Santa Clarita
Steven P. Rudolph
City Attorney
City of Folsom
Janet Ruggiero,
Director of Community Development
City of Citrus Heights
Linda Guillis
Community and Economic
Development Director
City of Moreno Valley
Peter Brown
City Attorney
City of Carpinteria
Tom Sullivan
Director of Community Development
City of Saratoga
Debra E. Corbett
City Attorney
City of Tracy
PRODUCTION & EDITING
+ JoAnne Speers + Kara Ueda + Charles Summerell + Meghan Sokol + Jude Hudson + Iolandé V. Argènt +
All final decisions about the content and formatting of this report were made by the Institute for Local Self Government.
ITEM 18.1.
ATTACHMENT 6
DEVELOPMENT AGREEMENT M ANUAL: COLLABORATION IN PURSUIT OF COMMUNITY INTERESTS © 2002 by the INSTITUTE for LOCAL SELF GOVERNMENT
1400 K STREET, SUITE 400
SACRAMENTO , CA 95814
(916) 658-8208
www.ilsg.org
THIS PUBLICATION IS NO SUBSTITUTE FOR LEGAL ADVICE
This publication provides an overview of development agreement practices and at times provides summaries of the law. Readers should note that attorneys can, and do, disagree about many of the issues addressed in this Development Agreement Manual. Moreover, proposals to change the land use regulatory process are frequently introduced in the state Legislature and new court decisions can alter the practices a public agency should follow. Accordingly:
• Public officials should always consult with agency counsel when confronted with specific situations related to land use laws;
• Agency counsel using this publication as a resource should always read and update the authorities cited to ensure that their advice reflects a full examination of the current and relevant authorities; and
• Members of the public and p roject proponents reading this publication should consult with an attorney knowledgeable in the fields of land use and real property development law.
ITEM 18.1.
ATTACHMENT 6
CONTENTS
1. INTRODUCTION .................................................................................... 9 What are Development Agreements...........................................................................9 In This Manual.............................................................................................................9
2. THE ADVANTAGES AND DISADVANTAGES OF DEVELOPMENT
AGREEMENTS…………………………...………………………………….1
1 Advancing Land Use Policies.....................................................................................11 Potential Advantages: The Ability to Better Implement Planning Policies........12 Potential Disadvantages: May Promote Bad Planning.......................................13 Imposing Conditions...................................................................................................14 Potential Advantages: More Encompassing Developer Requirements May be Enforced.................................................................................................................15 Statutory and Constitutional Restrictions.......................................................15 Avoiding Constraints and Uncertainties..........................................................17 Potential Disadvantages: Unrealistic Expectations May Make Project Infeasible ...............................................................................................................18 Assuring Project Can Be Built...................................................................................19 Potential Advantages: Fewer Surprises After Project Approval........................20 Potential Disadvantages: Rules of Engagement Are Locked In........................20 Summary.....................................................................................................................23
3. ACHIEVING LAND USE PLANNING OBJECTIVES THROUGH
DEVELOPMENT AGREEMENTS................................................................. 25 The Importance of Comprehensive Planning............................................................25 The Role of Planning Policies in the Negotiation Process..................................26 Planning Policies as a Mechanism for Defining Project Proponent Expectations. 28 Uses of Development Agreements............................................................................28 Summary.....................................................................................................................28
4. THE NUTS AND BOLTS OF PROCESSI NG DEVELOPMENT AGREEMENTS30 ITEM 18.1.
ATTACHMENT 6
Purpose/Findings........................................................................................................31 Application Process....................................................................................................31 Public Hearings and Notice........................................................................................32 Development Agreements and Public Input.........................................................32 Public Input on Consideration of the Proposed Agreement................................34 Notice Issues .........................................................................................................35 Decisionmaker Input on Development Agreements and Findings..........................36 Involving the Planning Commission Early On......................................................36 Planning Commission Recommendation and Input on Findings..........................37 Governing Body Hearing and Decision on the Development Agreement..........38 Action on the Agreement......................................................................................39 Recordation and Other Post-Approval Steps............................................................39 Amending the Development Agreement...................................................................40 Development Agreements and Accountability..........................................................40 Summary.....................................................................................................................41
5. THE ART OF NEGOTIATING DEVELOPMENT AGREEMENTS................ 43 Who is Going to Negotiate?.......................................................................................43 Reaching Consensus..................................................................................................44 Knowing Who is Across the Table........................................................................44 Setting Expectations..............................................................................................44 The Utility of Ground Rules..................................................................................45 Setting Priorities....................................................................................................46 Have a Strategy.....................................................................................................46 Interest-Based Bargaining Techniques................................................................47 Summary.....................................................................................................................48
6. THE SUBSTANCE OF A DEVELOPMENT A GREEMENT.......................... 49 Who Will do the Drafting?.........................................................................................49 When Should the Drafting Begin?.............................................................................50 Common Provisions In Development Agreements...................................................50 The Parties to the Agreement...............................................................................50 ITEM 18.1.
ATTACHMENT 6
Use of Recitals ......................................................................................................51 Term.......................................................................................................................51 Required Contents................................................................................................52 Public Benefits.......................................................................................................53 Addressing a Potential Police Power Challenge..................................................53 Recovery of Costs .................................................................................................55 Which Regulations Are Frozen?...........................................................................55 “Milest one” Requirements ..................................................................................56 Default, Remedies and Termination56
Non-Performance Issues.......................................................................................56 State or Federal Laws...........................................................................................57 Annual Review.......................................................................................................57 Enforcement...........................................................................................................58 Recordation...........................................................................................................58 Certificate of Satisfaction.....................................................................................58 Indemnification and Hold Harmless Provision.....................................................58 Amendment or Cancellation..................................................................................59 Assignment............................................................................................................59 Successors .............................................................................................................59 Validity of Portions of the Agreement Severability.............................................60 Attorneys Fees ......................................................................................................60 Good Faith and Fair Dealing.................................................................................60 Signatures and Subordination...............................................................................60 Summary.....................................................................................................................61
7. CONCLUSION ..................................................................................... 69 FEEDBACK FORM ................................................................................... 71 PUBLICATION ORDER FORM .................................................................. 73 INDEX...................................................................................................... 75 ITEM 18.1.
ATTACHMENT 6
Spring, 2002
Dear Reader:
On behalf of the Institute’s board of directors, we are pleased to be able to offer this resource to assist you in understanding issues relating to development agreements.
A key Institute goal is to make a difference for local agencies and the communities they serve.
Your feedback and input is a vital part of our efforts to assess the Institute’s value and impact:
• Did this publication help you? How? Did it make a difference in how you approached a local issue or policy relating to development agreements?
• How can the publication be improved? Did we leave anything out? Do you disagree with something we said?
• Do you have examples of the kinds of issues we discuss that we might be able to include in future updates of this publication? Are you interested in contributing to the Institute’s programs in general?
To assist you in providing feedback, we have provided a feedback form at the back of this publication. Your feedback is also welcome through our website at www.ilsg.org.
Thank you in advance for your assistance.
Very truly yours,
JoAnne Speers Jerry Patterson
Executive Director President, Board of Directors
ITEM 18.1.
ATTACHMENT 6
INTRODUCTION
WHAT ARE DEVELOPMENT AGREEMENTS?
Development agreements are contracts negotiated between project proponents and public agencies that govern the land uses that may be allowed in a particular project. 1 Although subject to negotiation, allowable land uses must be consistent with the local planning policies formulated by the legislative body through its general plan, and consistent with any applicable specific plan. 2
Neither the applicant nor the public agency is required to enter into a development agreement. When they do, the allowable land uses and other terms and conditions of approval are negotiated between the parties, subject to the public agencies’ ultimate approval. While a development agreement must advance the agencies’ local planning policies, it may also contain provisions that vary from otherwise applicable zoning standards and land use requirements.
The development agreement is essentially a planning tool that allows public agencies greater latitude to advance local planning policies, sometimes in new and creative ways. While a development agreement may be viewed as an alternative to the traditional development approval process, in practice it is commonly used in conjunction with it. It is not uncommon, for example, to see a project proponent apply for approval of a conditional use permit, zone change and development agreement for the same project.
IN THIS MANUAL
As discussed in Chapter 2, both parties to the agreement receive benefits.
In addition to the greater latitude afforded by the development agreement to advance local planning policies, the public agency has greater flexibility in imposing conditions and requirements on proposed projects, 3 while the applicant is afforded greater assurance that once the project is
1 See Cal. Gov’t Code § 65864 and following.
2 See Cal. Gov’t Code § 65867.5.
3 See Cal. Gov’t Code § 66000(b).
What Are Development
Agreements?................................... 9
In This Manual .............................. 9
1 C HAPTER
ITEM 18.1.
ATTACHMENT 6
10 | D EVELOPMENT A GREEMENT M ANUAL
approved, it can be built. 4 There may be disadvantages associated with development agreements as well (see Chapter 2).
Because development agreements afford greater latitude, local agencies may want to take steps to ensure that local land use objectives are not diminished through the use of development agreements (see Chapter 3).
Giving adequate thought to how the parties conduct negotiations can improve an agency’s chances of accomplishing its objectives, as well as ensuring that reasonable expectations of both parties are achieved (see Chapter 4). Finally, understanding the “nuts and bolts” of processing development agreements, and the terms and provisions that are typically included, will ensure that procedural requirements are met and legal interests protected (Chapter 5).
In short, this manual provides a practical overview of the development agreement process, including:
• The advantages and disadvantages of using
development agreements;
• The role development agreements can play in
achieving local agency land use planning objectives;
• Procedural issues related to development agreements;
• Substantive provisions in development agreements;
and
• The art of negotiating development agreements.
This manual reflects the variety of experiences that California public agencies and project proponents have had with development agreements, and builds upon the groundbreaking work of the original Development Agreement Manual written by Daniel Curtin and published in 1980 (supplemented in 1985) by the League of California Cities.
4 See Cal. Gov’t Code § 65865.4.
ITEM 18.1.
ATTACHMENT 6
THE ADVANTAGES AND
DISADVANTAGES OF
DEVELOPMENT
AGREEMENTS
Development agreements have three defining characteristics:
• They allow greater latitude than other methods of
approval to advance local land use policies in
sometimes new and creative ways;
• They allow public agencies greater flexibility in
imposing conditions and requirements on proposed
projects; and
• They afford project proponents greater assurance that once approved, their projects can be built.
Although these characteristics can be advantageous, they can also present challenges. The purpose of this chapter is to discuss potential advan tages and disadvantages of development agreements, from the perspective of both the public agency and project proponent.
ADVANCING LAND USE POLICIES
Because development agreements are themselves ordinances, they may supersede existing land use regulations as long as they are consistent with the general plan and any applicable specific plan. 5 As a result, they can afford the public agency and project proponent greater latitude concerning allowable land uses in a particular instance. However, there are poten tial advantages and disadvantages associated with having this flexibility.
5 See Cal. Gov’t Code § 65867.5.
Advancing Land Use Policies.....11
Imposing Conditions ..................14
Assuring Project Will Be Built 19
Summary .....................................23
2 C HAPTER
ITEM 18.1.
ATTACHMENT 6
12 | D EVELOPMENT A GREEMENT M ANUAL
POTENTIAL ADVANTAGES: THE ABILITY TO BETTER
IMPLEMENT PLANNING POLICIES
From a planning perspective, development agreements have been instrumental in allowing creative and award -winning land use projects because the agreements can facilitate projects that would not have been allowed under otherwise applicable zoning regulations. The approval of creative land use concepts — and the construction of resulting projects — have advanced t he state of urban planning, and allowed public agencies to better combat the visual and aesthetic impacts of “cookie -cutter” development.
In a similar vein, there are instances in which literal compliance with zoning ordinance provisions can thwart promotion of general plan policies. For example, the general plan may encourage the existence of open space, whereas the applicable zoning district does not allow sufficient density to accommodate the clustering of residential units necessary to accommodate an open space component.
There may also be instances in which the legislative body wishes to promote unwritten policies, such as those involving growth management. As long as the project is consistent with the local planning policies formulated by the legislative body through its general plan, the development agreement can provide greater latitude to incorporate land use concepts and components that are tailored specifically to address particular community concerns.
In each of these cases, the ability to vary f rom strict adherence to otherwise applicable zoning provisions can help ensure that the public agency’s land use policies are being advanced, in sometimes new and innovative ways. These advantages are shared by the public agency and project proponent alike.
The following example shows how using a development agreement allows the parties to develop a unique land use project to advance the public agency’s land use policies creatively and responsibly through the give-and- take of negotiations, as both parties address their respective needs and desires.
ITEM 18.1.
ATTACHMENT 6
I NSTITUTE for LOCAL S ELF GOVERNMENT C OMMUNITY LAND U SE P ROJECT | 13
While few things in life go as smoothly as the hypothetical approval of Sports World (above), the process of negotiating development agreements can allow the development of new and creative concepts, address associated issues and conc erns unique to a particular project, and ensure adherence to local land use policies in conformance with the general plan.
I LLUSTRATION — S PORTS WORLD
Mr. Dee, a developer, wishes to construct a project that will attract people traveling through Grassland on the way to Yosemite. Mr. Dee’s “Sports World” will have a combination of attractive components, including a virtual sports center with a simulated ski slope, fairway and rock climb; a gas station; restaurant; hotel; and air strip. If the project succeeds, it will generate substantial profits. Mr. Dee wishes to have his project approved in a manner that will allow him flexibility with respect to both land use and design, so that he can select from a variety of tenants and react to changing market conditions without having to obtain further city approvals. Although the general plan recites the need to attract tourists destined for Yosemite, the zoning ordinance does not allow the particular combination of uses Mr. Dee is proposing.
Cautiously optimistic, the Grassland city council understands that Grassland will benefit from the added sales tax. But the council’s concerns are numerous, and include the concern that Mr. Dee may not have the experience to complete the project; that the project may not “pencil out” financially; and that it may not attract the anticipated number of tour ists. Finally, the council doesn’t know what the project is — what it will look like, what uses will be allowed, and what design standards and architectural controls will govern it. The city council is also concerned about the potential impact of additional traffic on the adjacent freeway overpass.
Given that the zoning ordinance does not allow the proposed project, and the fact that there are a number of council concerns, the parties decide to negotiate a development agreement. As negotiations begin, Mr. Dee initially advocates conceptual development and design standards, while Grassland insists on elevations showing the exact location and type of use for every project component. As the negotiations proceed, the parties approve four alternative plans, each of which will allow Mr. Dee to react to a different market, while also allowing city council to understand what the project is.
In addition, the parties agree that some of the allowable uses for portions of the project will be more generically defined (for example, office/commercial), so that Mr. Dee can select from a number of tenants without first having to obtain additional city approvals. Once a tenant is selected, however, plans and elevations for the site must be submitted to Grassland for architectural review.
In the end, the parties reach agreement on all of the outstanding issues. Planning staff confirms that the final agreement is consistent with and advances the aims of the general plan and associated land use policies, and the project is approved and constructed.
ITEM 18.1.
ATTACHMENT 6
14 | D EVELOPMENT A GREEMENT M ANUAL
POTENTIAL DISADVANTAGES: MAY PROMOTE BAD
PLANNING
The latitude afforded the parties through use of a development agreement may also have potential disadvantages. For example, the agency’s staff and legislative body may become convinced that, in exchange for the significant sales tax revenue the agency is likely to receive from a particular project, or in consideration of the fact that the project proponent is willing to construct a new city park or other significant public amenity, the agency should agree to compromise its planning standards in a manner that could reduce the quality of life in the community. The pressure to compromise may be especially great in the case of a “friendly developer” who has a popular presence in the community.
From the project proponent’s perspective, it is possible that the legislative body may decide to disallow uses that would otherwise be allowed, and which are appropriate from a conventional planning perspective.
The suggestions that appear in this manual are intended to help avoid misusing development agreements. They are based on the premise that from the outset, the planning policies and objectives that have been embraced by the community through adoption of the general plan, and those included in any applicable specific plan, should be an integral part of the discussions and negotiations between the parties to a development agreement.
By identifying applicable planning policies early on, and continuing to use them as yardsticks in determining what land uses are appropriate, the parties should be able to avoid unacceptable compromises when negotiating development agreements.
IMPOSING CONDITIONS
Development agreements provide public agencies greater flexibility in imposing requirements on proposed development, such as development conditions, exactions and fees, because constraints and uncertainties that affect a local agency’s ability to unilaterally impose such requirements do not apply to mutually agreed upon development agreement provisions.6
6 See Cal. Gov’t Code § 66000(b) (excluding “fees collected under development agreements” from the type of fee covered under the Mitigat ion Fee Act).
ITEM 18.1.
ATTACHMENT 6
I NSTITUTE for LOCAL S ELF GOVERNMENT C OMMUNITY LAND U SE P ROJECT | 15 POTENTIAL ADVANTAGES: MORE ENCOMPASSING
DEVELOPER REQUIREMENTS MAY BE ENFORCED
Public agencies face the following types of legal constraints and uncertainties that directly affect their ability to regulate development. Such constraints and uncertainties may be overcome, however, through the use of development agreements.
Voter Initiatives. During the past several decades, public agencies have been subjected t o a number of fiscal setbacks that have impeded their ability to meet the service and infrastructure needs of their communities. A number of voter initiatives have limited public agencies’ revenue raising authority, and questions associated with these initiatives have created legal uncertainties.
ERAF Shift. In 1992, in reaction to a serious deficit, the state enacted legislation that annually shifts some of the financial responsibility for funding education, pursuant to Proposition 98, to local public agencies. Through the intervening the years, the Educational Revenue Augmentation Fund (ERAF) has deprived local agencies of more than $30 billion.
Since the ERAF shift and passage of initiative measures limiting public agencies’ general revenue sources, age ncies have increasingly required project proponents to bear the costs to the community associated with development of their projects. Many agencies have adopted development impact fees, for example, that are designed to require project proponents to pay the costs of infrastructure, facilities and public services required to service their projects.
STATUTORY AND CONSTITUTIONAL RESTRICTIONS
Mitigation Fee Act. Commonly referred to as Assembly Bill (AB) 1600, the Mitigation Fee Act was enacted in 1987. 7 It c losely regulates the adoption, levy and collection of development fees, including project-specific fees, imposed by local agencies. The act requires the agency to identify the purpose and use of the fee, and to explain why there is a reasonable relationship between the fee and the development. 8 Fees may not exceed the estimated reasonable cost of providing the service for which the fee is collected.9 These requirements, among other things, have restricted the reach of development impact fees.
7 See Cal. Gov’t Code § 66000 and following.
8 See Cal. Gov’t Code § 66001.
9 See Cal. Gov’t Code § 66005.
ITEM 18.1.
ATTACHMENT 6
16 | D EVELOPMENT A GREEMENT M ANUAL
School Faci lity Fees. Local public agencies historically have been responsible for financing schools. In 1998, however, Senate Bill (SB) 50 significantly changed the extent to which agencies can require developers to contribute to the cost of building new schools. 10 SB 50 sets maximum amounts on such fees. 11 It also prohibits agencies from imposing other conditions on development to ensure the existence of adequate school facilities.12
Each of these constraints and uncertainties limits a local agency’s ability to adequately condition new development in a manner that will cover the cost of associated infrastructure, facilities and public services. 13 Regulatory Takings . The term “regulatory takings” derives from the Takings Clause of the Fifth Amendment to the United Stat es Constitution, which states: “… nor shall private property be taken for public use, without just compensation.”14
A “taking” is any confiscation of private property by a public agency. A “regulatory taking” is an indirect confiscation of private property through government regulation. If a court finds that a challenged regulation constitutes a taking, the public agency must compensate the owner of the property.
In recent years, takings litigation (and the threat of such litigation) has become a significan t factor in land use decision-making. Increasingly, project proponents have invoked the Takings Clause in an effort to persuade public agencies to reduce their efforts to require developers to pay various costs associated with infrastructure and public services.
Moreover, the courts have displayed a greater inclination to second-guess public officials’ decisions—a departure from the traditional deference the courts have afforded decisions of local officials in the past.
The expanding scope of what constit utes a compensable taking is of concern to local agencies because of the potential for being assessed large monetary judgments in connection with the imposition of development requirements.
10 See Cal. Gov’t Code § 65995(a).
11 See Cal. Gov’t Code § 65995(b).
12 See Cal. Gov’t Code § 65996(b).
13 An overview of SB 50 is available from the League of California Cities. To obtain a copy, League members may contact the League and request “Strauss Opinion on SB 50, January 1999.”
14 To the same effect is article 1, section 19 of the California Constitution: “Private property may be taken or damaged for public use only when just compensation, ascertained by a jury unless waived, has first been paid . . ..”
ITEM 18.1.
ATTACHMENT 6
I NSTITUTE for LOCAL S ELF GOVERNMENT C OMMUNITY LAND U SE P ROJECT | 17
AVOIDING CONSTRAINTS AND UNCERTAINTIES
A public agency can avoid the types of constraints and uncertainties described above by entering into development agreements, since the project proponents agree to fees and req uirements. Once the agreement is executed, the project proponent has generally waived his or her right to challenge the fairness or appropriateness of a particular requirement.
For example, the local agency can ask that the project proponent agree to finance public facilities and improvements without the specter of a regulatory takings claim. Similarly, the local agency may ask the project proponent to construct a new school without fear that school facility-fee limitations will be invoked. The project proponent must agree to such requirements, of course, before they may become enforceable.
The local agency may also bargain for completion of facilities and improvements at an earlier stage in the development process. This can result in needed infrastructure and facilities being put in place prior to or concurrently with the development, reducing the development’s impact on existing facilities or services. Similarly, the project proponent may agree to pay additional fees to protect the agency and existing resi dents from any budgetary impacts associated with the development.
For facilities and infrastructure that are funded by multiple projects, the development agreement process can provide a mechanism to ensure that each project proponent pays its fair share in a timely manner.
The project-specificity of the development agreement process offers the public agency the opportunity to design more tailored implementation programs for its planning policies and objectives as they relate to the proposed project. The process of negotiating the agreement can help the agency identify and address issues relating to the project before the agency provides final approval. The agency may also require that the agreement include provisions dealing with identifiable contingencies related to the proposed project.
Finally, the fact that the development agreement is recorded provides a convenient mechanism for binding future owners to the requirements and obligations created by the agreement.15
15 See Cal. Gov’t Code § 65868.5 (“ ... the burdens of the agreement shall be binding upon, and the benefits of the agreement shall inure to, all successors in interest to the parties to the agreement”).
LEGISLATIVE HISTORY
OF D EVELOPMENT
A GREEMENT LAW
The Development Agreement Law
was enacted in 1979, in response to
the Avco Community Developers,
Inc. v. South Coast Regional
Commission decision. See 17 Cal.
3d 785 (1976).
The Avco case involved a large
development in Orange County,
some of which was in the coastal
zone. Under the newly enacted
Coastal Act, the developer had to
obtain a permit from the Coastal
Commission unless it had obtained
a building permit. The developer
had secured a final subdivision map
and a grading permit, but did not
have a building permit. The
developer had already spent a great
deal of money on the site.
The court ruled that the developer’s
project was indeed subject to the
Coastal Act’s additional
requirements and restrictions,
reaffirming the rule that property
owners acquire a vested right to
complete construction only after
they have performed substantial
work and incurred substantial
liabilities in good faith reliance on a
permit issued by regulatory
authorities. Only at that point can a
project be completed free of new
restrictions.
The result in Avco created great
consternation in the development
community, which lobbied the
Legislature to create a mechanism
that would allow developers to
know earlier on in the process what
requirements would apply to their
projects. The development
agreement law is a result of this
effort.
ITEM 18.1.
ATTACHMENT 6
18 | D EVELOPMENT A GREEMENT M ANUAL
POTENTIAL DISADVANTAGES: UNREALISTIC
EXPECTATIONS MAY MAKE PROJECT INFEASIBLE
From the project proponent’s viewpoint, local agencies may expect more encompassing project requirements than are financially feasible. The myriad of issues developers face, including land availability, financing, market considerations and federal, state and local regulatory requirements can make it difficult to propose financially feasible development projects.
Against this back drop, some developers have abandoned development agreements altogether. This avoids the risk of discovering after months of negotiations that the local agency expects the developer to construct an
16 Cal. Lab. Code § 1720(b).
17 Cal. Lab. Code §§ 1770; 1771.
18 Cal. Lab. Code § 1771.
19 Cal. Lab. Code § 1720(b).
20 Id.
21 Id.
22 Id.
23 Id.
24 Id.
25 Cal. Lab. Code § 1720(c).
F INANCIAL I NCENTIVES M AY T RIGGER P REVAILING W AGE R EQUIREMENT Effective January 1, 2002, many development projects that involve loans, grants or other forms of assistance from local agencies are classified as “public works” projects. 16 As such, they fall under state requirements for payment of “prevailing wages.” 17 These requirements establish minimum wage levels for public works projects that vary by location. 18 Application of prevailing wage requirements may lead to higher labor costs for development projects that receive certain forms of fin ancial support or incentives from local agencies.
Prevailing wages now may apply to otherwise private projects, where a public agency:
• Pays money or its equivalent to or on behalf of a developer19; • Performs construction work in execution of the project;20 • Transfers assets at less then fair market value;21
• Waives or forgives fees, costs, rents, insurance or bond premiums, loans, or interest rates;22 • Makes available money to be repaid on a contingent basis;23 or • Grants credits applied against repayment obligations. 24 Reimbursing a developer for costs that would normally be borne by the public does not trigger the prevailing wage requirement, nor does a subsidy that is de minimis in the context of the project. 25 ITEM 18.1.
ATTACHMENT 6
I NSTITUTE for LOCAL S ELF GOVERNMENT C OMMUNITY LAND U SE P ROJECT | 19 expensive public amenity, such as a school or park, in consideration of the benefits the developer will receive from a development agreement.
As further discussed in Chapter 4, one way of avoiding this type of problem is to discuss the parties’ expectations at the outset, as a prelude to beginning negotiations. That allows each party to assess early on whether a development agreement will meet each party’s needs.
ASSURING PROJECT CAN BE BUILT
One of the challenges project proponents face in the usual regulatory process is that the project must meet the regulatory standards in effect at each stage of the development process. This can result in a proposed project being subject to new regulations even after it has received final approval, and even if the new regulations preclude or prohibit construction of some or all of the project.
As a result, it can be difficult for a project proponent to know at the outset what criteria the project must meet. It is not until the proponent’s right to complete the project has “vested,” that he or she has the right to build the project without concern that new regulations may apply.
Unforeseen regulatory changes (including those adopted by the voters through the initiative process) can add time and expense to a proposed project. Moreover, a proponent of a large project must typically invest substantial amounts of time and money in the project before he or she receives “vested rights” to complete the project as approved.
26 City of San Jose v. State of California , 45 Cal. App. 4th 1802, 53 Cal. Rptr. 2d 521 (6th Dist. 1996) rev. denied (1996).
WHEN D OES O NE A CQUIRE A “V ESTED ” RIGHT TO P ROCEED WITH
D EVELOPMENT, FREE FROM A DDITIONAL R EGULATORY
R EQUIREMENTS ?
Ordinarily, a project proponent acquires a vested right to complete construction when the proponent has:
• Obtained all permits necessary for the proposed structure; • Performed substantial work in good faith reliance upon those approvals; and • Incurred substantial liabilities in good faith reliance upon those approvals. The proponent must, of course, complete the work in accordance with the terms of the permit.26 A project proponent cannot acquire a vested right under an invalid building permit, even if substantial expenditures have been made in good faith.26 The rights that vest through reliance on the building or other permit cannot be greater than those specifically granted by the permit itself.26 For example, perfection of a vested right for one phase of a multiphase project does not create a vested right to build subsequent phases .
ITEM 18.1.
ATTACHMENT 6
20 | D EVELOPMENT A GREEMENT M ANUAL
On the o ther hand, a project proponent who is a party to a development agreement receives “vested rights” to complete the project as approved.
This occurs immediately upon execution of the agreement, by virtue of the fact that a development agreement “freezes” ap plicable local land use regulations with respect to the proposed project.27
POTENTIAL ADVANTAGES: FEWER SURPRISES AFTER
PROJECT APPROVAL
From a project proponent’s perspective, the added certainty associated with receiving “vested rights” to construct a pr oposed project without concern that new regulations may apply can be invaluable. It may be especially important to a project proponent worried about a potential ballot measure or a change in the governing body majority that could adversely affect the project. While development agreements are subject to voter referenda,28 an opponent would have to file his or her submittal within 30 days after final approval of the development agreement in order to preserve the right to put the approval of the agreement on the ballot. 29 Once the 30-day period is over, the project proponent can safely assume that the project will not be affected by future ballot measures.
There are limits to the degree of assurance that a public agency can offer.
For example, additional conditions may be imposed on the project if further environmental analysis is needed under the California Environmental Quality Act (CEQA). Also, a development agreement cannot prevent the application of state or federal regulations, as further discussed below.30 Another advantage from the project proponent’s perspective is limiting the potential for regulatory change. This can be helpful when the proponent seeks financing. It can also be reassuring with respect to large projects that have significant upfront costs.
POTENTIAL DISADVANTAGES: RULES OF ENGAGEMENT
ARE LOCKED IN
A development agreement can limit the public agency’s ability to respond to a changing regulatory environment, precisely because it locks in the
27 See Cal. Gov’t Code § 65865.4.
28 See Cal. Gov’t Code § 65867.5.
29 See Cal. Elect Code § 9237.
30 See Cal. Gov’t Code § 65869.5.
ITEM 18.1.
ATTACHMENT 6
I NSTITUTE for LOCAL S ELF GOVERNMENT C OMMUNITY LAND U SE P ROJECT | 21 regulatory requirements in effect at the time the agreement is approved. If the agency’s planning regulations are in need of review or updating, the agency may be subject to criticism if the conditions imposed by the agreement do not sufficiently protect the community’s interests. In the absence of a dev elopment agreement, and should the need arise, the agency retains the prerogative to change the rules relating to the project, even if that change makes the intended use unlawful.
A development agreement also places a premium on an agency being able at the outset to identify all of the issues presented by a project. Since changes to the agreement require mutual assent, it may be difficult to add conditions or requirements later, should the agency identify the need to do so after the agreement is entered into.
From the proponent’s perspective, the project’s obligations are also locked in by the agreement. Some elements of market changes—including changes in the project’s economics—may not be reflected in the agreement. This can put a premium on a project pr oponent’s ability to anticipate areas of potential change and then negotiate the flexibility to respond to those changes (for example, by negotiating a range of future uses, based on what the market will bear at the time of build out).
Another possible disadvantage is the degree of protection from regulatory change, which is limited to local regulations. The development agreement law specifically provides that a development agreement must be modified if necessary to comply with subsequently enacted state or federal law. 31 The new state or federal law may prevent or preclude compliance with the provisions of the development agreement. The issue for the project proponent is whether some protection from regulatory change is better than none at all.
31 See Cal. Gov’t Code § 65869.5.
ITEM 18.1.
ATTACHMENT 6
22 | D EVELOPMENT A GREEMENT M ANUAL
C OMPARISON OF T ENTATIVE M APS , V ESTING T ENTATIVE M APS
AND D EVELOPMENT A GREEMENTS
Development agreements are one planning tool. This chart provides a side-by -side comparison of how development agreements compare with tentative subdivision maps and vesting tentative maps.
Tentative Maps Vesting Tentative Maps Development Agreements Description Tentative Subdivision Map
(or Tentative Map) – The
project proponent’s initial
proposal for subdividing land,
which is the local agency’s
main opportunity to set
conditions on the proposed
subdivision.
The point in time when a
project proponent has the
right to proceed without being
subject to changes in land use
regulations, typically when
the last permit necessary for
construction of a project
(usually a building permit) has
been issued and substantial
expenditures have been
incurred in reliance on the
permit . The concept of
vested rights is one of the
reasons it is important that
concerned citizens make their
views known as early as
possible in the land use
decision making process.
A legislatively -approved contract
between a jurisdiction and a person
having legal or equitable interest in
real property within the
jurisdiction (California
Government Code Section 65865
and following) that typically
"freezes" certain rules, regulations,
and policies applicable to a project
for a specified period of time,
usually in exchange for certain
concessions by the project
proponent.
Application of Conflicting
Local Rules in Future Yes
Only if necessary to prevent
situation dangerous to health
and safety
Depends on language in agreement
When Requirements Are
Locked In/Not Subject to
Change
No vested right even at the
final map stage
Police power requirements can
be changed at each stage of
the permitting process
Vested right conferred when
building permits issued and
substantial work completed in
reliance on those permits
When application is
“complete”
At execution of agreement, unless
agreement provides otherwise
Fees and Dedications Subject to statutory and
constitutional restrictions
Subject to statutory and
constitutional restrictions
Subject to mutual agreement
Phasing Allowed Allowed Allowed
Effect on Other Agencies’
Regulatory Prerogatives
Does not limit Does not limit Does not limit
Local Agency Procedures Agency must adopt Local agencies may adopt procedures; otherwise, Map
Act governs
Local agencies must adopt
procedures upon request of
applicant
Processing
Mandatory — Local agencies
must accept application and
process it within statutory
time frames
Mandatory — Local agencies
must accept application and
process it within statutory
time frames
Discretionary — Local agencies
may chose to use or not
Duration Specified by statute, which
includes both automatic and
discretionary extensions
Specified by statute, which
includes both automatic and
discretionary extensions
Annual review required. County
development agreements are time-
limited if land is annexed or
incorporated (Government Code
section 65865.3)
Voter Review No — approval is an
adjudicatory act not subject to
referenda
No — approval is an
adjudicatory act not subject to
referenda
Yes — approval is a legislative act
subject to referenda
Time Limit for
Challenging
90 day statute of limitations 90 day statute of limitations 90 day statute of limitations Governing Statutes Government Code sections
66410 to 66499.37
Government Code sections
66498.1 to 66498.9
Government Code sections 65864
to 65869.5
ITEM 18.1.
ATTACHMENT 6
I NSTITUTE for LOCAL S ELF GOVERNMENT C OMMUNITY LAND U SE P ROJECT | 23
SUMMARY
This chapter has examined the advantages of the three defining characteristics of development agreements—greater regulatory latitude, flexibility and assurance for project proponents. But these characteristics can also present obstacles for the parties negotiating a development agreement.
Some developers may continue avoiding the use of development agreements becau se of the potential for expensive project requirements.
Some local agency staff may avoid development agreements because of the limitations that development agreements impose on an agency’s ability to respond to a changing regulatory environment. Nevertheless, the latitude afforded by development agreements to advance local agencies’ planning objectives--in sometimes new and innovative ways--makes the development agreement a useful and viable tool in service to the community in a number of different applications.
For both parties, a development agreement can involve a great deal of time and energy to negotiate and implement. Accordingly, it is important at the outset to carefully evaluate the advantages and disadvantages of using a development agreement in each specific instance.
ITEM 18.1.
ATTACHMENT 6
24 | D EVELOPMENT A GREEMENT M ANUAL
ITEM 18.1.
ATTACHMENT 6
ACHIEVING LAND USE
PLANNING OBJECTIVES
THROUGH DEVELOPMENT
AGREEMENTS
Development agreements can be used for a wide range of projects, from large mixed-use developments to smaller projects. Moreover, the scope of a development agreement can vary according to the needs of the project in question. Although a development agreem ent can be comprehensive, detailing every aspect of the project, it can also focus on particular aspects of a project.
This chapter discusses the role that development agreements can play in a local agency’s overall planning process. Fundamentally, development agreements are one tool in the local agency’s toolbox for achieving the community’s long-term planning and development goals.
THE IMPORTANCE OF COMPREHENSIVE
PLANNING
In authorizing the use of development agreements, the Legislature emphasized that development agreements are intended to serve as a tool to strengthen a community’s commitment to comprehensive land use planning.32 The concept behind the use of development agreements is to encourage communities to think ahead, in a comprehensive manner, about the impacts of development within their jurisdiction and the steps necessary to make that development a win -win proposition for both the project proponents and the community.
32 See Cal. Gov’t Code § 65864(a) (“The Legislature finds and declares that: (a) The lack of certainty in the approval of development projects can result in a waste of resources, escalate the cost of housing and other development to the consumer, and discourage investment in and commitment to comprehensive planning which would make maximum efficient utilization of resources at the least economic cost to the public.”) (emphasis added).
The Importance of
Comprehensive Planning ........... 25
Uses of Development
Agreements................................... 28
Summary ...................................... 28
3 C HAPTER
ITEM 18.1.
ATTACHMENT 6
26 | D EVELOPMENT A GREEMENT M ANUAL
A development agreement generally allows a project proponent to proceed with a project that meets the “policies, rules and regulations” in effect at the time the development agreement is approved.33 A development agreement may also supercede an agency’s existing policies, rules and regulations, as long as the project is consistent with the general plan and any applicable specific plan. 34
THE ROLE OF PLANNING POLICIES IN THE
NEGOTIATION PROCESS
A helpful starting point is having well-understood planning regulations that reflect the community’s current and anticipated needs. Such policies, when adhered to, facilitate the negotiation process, ensuring that a proposed development agreement refle cts the local governing body’s policies. This approach can also address a source of decisionmaker discomfort with the development agreement process, because even though the governing body ultimately approves a development agreement, it also needs a mechanism to provide direction to the negotiation process. Planning policies meet this need.
Typically in a negotiation process, decisionmakers provide their negotiators with parameters on key bargaining issues. It is important that the parameters remain confidential, so the other side does not know how much leeway the negotiators have.
Confidentiality is difficult in the context of development agreement negotiations because the state’s open meeting laws35 do not generally allow an exception for public agency negotiators on development agreements to receive direction from the governing body. There may be aspects of a development agreement—for example, the price and terms of payment for acquisition of property—that can be discussed in closed session. However, only those issues may be discussed in closed session—not the development agreement in general.
The agency’s planning policies, therefore, may serve as the negotiators’ key source of direction in this circumstance. In addition, a local agency may want to consider directing its staff to adopt a different type of negotiating style, where identification of “interests” replaces the need to establish outer
33 See Cal. Gov’t Code § 65864(b) (“The Legislatu re finds and declares that: … (b) Assurance to the applicant for a development project that upon approval of the project, the applicant may proceed with the project in accordance with existing policies, rules and regulations, and subject to conditions of approval, will strengthen the public planning process, encourage private participation in comprehensive planning, and reduce the economic costs of development.”) (emphasis added). See also Cal. Gov’t Code § 65866.
34 See Cal. Gov’t Code § 65867.5.
35 See generally Cal. Gov’t Code § 54950 and following (The Ralph M. Brown Act).
WHAT D OES A
D EVELOPMENT
A GREEMENT
C OVER?
• Permitted uses of the
property;
• Density or intensity
of use;
• Maximum height and
size of proposed
buildings;
• Provisions for
reservation or
dedication of land for
public purposes;
• Terms and
conditions relating to
financing of
necessary public
improvements, as
well as provisions for
subsequent
reimbursement for
that financing, as
appropriate;
• Timeframes for
commencement and
completion of
construction, or any
phases of
construction;
• Subsequent
discretionary
approval provisions,
as long as those
approvals do not
prevent development
of the project as
described in the
agreement; and
• The duration of the
agreement.
ITEM 18.1.
ATTACHMENT 6
I NSTITUTE for LOCAL S ELF GOVERNMENT C OMMUNITY LAND U SE P ROJECT | 27 “positions” or parameters (see discussion in Chapter 4). If an agency uses an interest-based negotiating strategy, there are fewer strategic disadvantages associated with a governing body’s trying to provide direction in open session.
Well-conceived and up-to-date planning policies can also assist local agencies to avoid having to ask the staff to negotiate in a vacuum, with little or no immediate direction or feedback from decisionmakers. When the agreement is before the legislative body for final approval, it may be difficult for the body to modify aspects of the agreement without, in effect, renegotiating the agreement from the dais to change the terms that the staff negotiated.
D EVELOPMENT A GREEMENTS AND
A NNEXATIONS /INCORPORATIONS
The development agreement law provides that cities generally inherit development agreements negotiated by counties for newly incorporated or newly annexed areas. See Cal. Gov’t Code § 65865.3(a) (for incorporations, the effective date of the incorporation must be after January 1, 1987). The development agreement must meet the following requirements, however:
• The application for the agreement must have been submitted before the first signature was placed on the petition for annexation or incorporation (or resolution initiating such proceedings); • The agreement must have been entered into prior to the incorporation/annexation election (or prior to the date on which the conducting authority ordered the annexation); and • The annexation is initiated by the city (or, if initiated by someone else, the city does not adopt written findings that the development agreement is injurious to the health, safety or welfare of city residents. See Cal. Gov’t Code § 65865.3(c) and (d).
The duration of such inherited development agreements is the duration of the agreement or eight years, whichever is shorter. See Cal. Gov’t Code § 65865.3(a).
The city may modify or suspend the development agreement’s provisions if the city determines that failure to do so would place the residents of the territory subject to the development agreement (or the residents of the city in general — or both) in a condition dangerous to their health or safety (or both). See Cal. Gov’t Code § 65865.3(a).
However, the development agreement law also authorizes cities to enter into development agreements for unincorporated territory within their sphere of influence. See Cal. Gov’t Code § 65865(b). The agreement does not become operative until the annexation occurs. See Cal. Gov’t Code § 65865(b). The timeframe for the annexation must be specified in the agreement and the annexation must occur within that timeframe. See Cal. Gov’t Code § 65865(b). Extensions are possible, however. See Cal. Gov’t Code § 65865(b).
ITEM 18.1.
ATTACHMENT 6
28 | D EVELOPMENT A GREEMENT M ANUAL
PLANNING POLICIES AS A MECHANISM FOR DEFINING
PROJECT PROPONENT EXPECTATIONS
An agency’s planning documents, including its local development agreement procedures, can provide an important source of guidance for project proponents going into negotiations. By stating in the procedures that the local agency is committed to using development agreements as a tool to promote the community’s needs, the agency makes clear that it expects to receive greater community benefits than it could otherwise achieve through the land use regulatory process. This level of understanding can be helpful in setting the proper tone, so both parties have realistic expectations going into the negotiations.
Such an approach also may be helpful in responding to community concerns that the community has not received adequate benefits in the past from development agreements. These concerns may arise, especially when the project proponent has an ongoing relationship with the public agency.
USES OF DEVELOPMENT AGREEMENTS
Local g overnment agencies have successfully used development agreements to facilitate:
• School, park and other facility funding;
• Affordable housing projects;
• Large-scale mixed use projects; and
• Multi-phase commercial projects.
Development agreements can also be a vehicle for addressing concerns among developers about perceived adverse impacts of neighboring projects.
SUMMARY
Used judiciously, development agreements are a useful tool for achieving an agency’s land use planning objectives. Well-articulated planning policies
36 Cal. Gov’t Code § 14045.
37 Cal. Gov’t Code §§ 65460.10, 65460.2.
38 Cal. Gov’t Code § 65913.5
D EVELOPMENT
A GREEMENTS AND
T RANSIT
Development agreements
may be used to implement
demonstration programs
that test the effectiveness of
increasing the density of
residential development in
close proximity to mass
transit stations. 36 Local
agencies may also require
developers to enter into
development agreements to
implement density-bonus
programs in transit village
plans 37 or within a half-mile
radius of mass transit
stations. 38
ITEM 18.1.
ATTACHMENT 6
I NSTITUTE for LOCAL S ELF GOVERNMENT C OMMUNITY LAND U SE P ROJECT | 29 may also provide important policy direction to staff in negotiating such agreements.
ITEM 18.1.
ATTACHMENT 6
THE NUTS AND BOLTS OF
PROCESSING
DEVELOPMENT
AGREEMENTS
From a local agency standpoint, the development agreement process begins with the local agency’s procedur es for development agreements. The development agreement law contemplates the adoption of such procedures by local government agencies.39 If there are none, some must be adopted upon the request of an applicant. 40 Sample procedures are available online at www.ilsg.org/devtagmt
and typically include the following:
• A statement of purpose/findings concerning the public benefits of development agreements;
• Application requirements;
• Notice and hearing
procedures;
• Planning commission and
governing body review;
• Recordation;
• Amendment and
termination; and
• Periodic review.
39 See Cal. Gov’t Code § 65865(b) (“Every city, county, or city and county, shall, upon request of an applicant, by resolution or ordinance, establish procedures and requirements for the consideration of development agreements …”).
40 See Cal. Gov’t Code § 65865(b).
Purpose/Findings ........................ 31
Application Process...................... 31
Public Hearings and Notice ........ 32
Decisionmaker Input on
Development Agreement and
Findings ........................................ 36
Recordation and Other Post-
Approval Steps.............................. 39
Amendment .................................. 40
Development Agreements and
Accountability .............................. 40
Summary ...................................... 41
ITEM 18.1.
ATTACHMENT 6
I NSTITUTE for LOCAL S ELF GOVERNMENT C OMMUNITY LAND U SE P ROJECT | 31 Such procedures may be adopted by ordinance or
resolution.41 The development agreement law
allows local agencies to recover the direct costs
associated with adopting procedures for the
agencies’ consideration of development
agreements.42
This chapter discusses procedures and issues an
agency may include in its development agreement
procedures resolution or ordinance, as well as the
general steps in the process of approving a
development agreement.
PURPOSE/FINDINGS
The agency’s development agreement procedures provide an opportunity for the local agency to state its goal for considering development agreement requests, which is “…to promote the community’s needs and receive greater community benefits than otherwise can be achieved through the land use regulatory process.” A goal statement similar to this example can be helpful in setting the tone for negotiations, so that both parties have realistic expectations going into the negotiations.
It is also helpful to refer to the development agreement statute, Califor nia Government Code section 65864 and following.
APPLICATION PROCESS
An application form specifying the type of
information an agency needs to process the
development agreement request is an efficient
way of ensuring that the agency receives all of
the information it needs in a timely manner. Some
development procedures authorize the agency’s
planning director to develop a form application for
development agreements. A sample form is also
available online at www.ilsg.org/devtagmt
.
It can also be helpful for an agency’s
development agreement procedures to authorize the local agency’s attorney to develop a form agreement. Having a readily available form agreement saves staff time in reviewing development agreements; it also provides
41 See Cal. Gov’t Code § 65865(b).
42 See Cal. Gov’t Code § 65865(d).
WHO M AY I NITIATE
THE D EVELOPMENT
A GREEMENT
P ROCESS?
An owner (with legal or
equitable title) must apply in
accordance with the local
agency’s procedures. See Cal.
Gov’t Code § 65865(b).
See also National Parks and
Conservation Assn v. County
of Riverside, 42 Cal. App. 4th
1505 (1996).
O RDINANCE OR
R ESOLUTION?
Development agreements are
authorized both ways: by
ordinance and resolution. Some
public agency attorneys
recommend resolutions as the
more flexible form of
authorization.
ITEM 18.1.
ATTACHMENT 6
32 | D EVELOPMENT A GREEMENT M ANUAL
greater assurance that the agreement will cover all of the agency’s needs.
Chapter 6 discusses the content of development agreements. Sample forms are available online at www.ilsg.org/devtagmt
.
Some public agencies charge fees to process
applications. A local agency’s development
agreement procedures can specify those fees or
cross reference a fee schedule that includes this
particular type of fee.43
The local agency will also need to ensure that the
environmental analysis requirements under the
California Environmental Quality Act (CEQA)
have been satisfied.44
PUBLIC HEARINGS AND
NOTICE
Another important aspect of development
agreements is the role of public input. The
development agreement law requires a noticed public hearing by both the planning agency and by the local agency’s governing body before a development agreement is approved.45
DEVELOPMENT AGREEMENTS AND PUBLIC INPUT
Both the project proponent and the local agency have an interest in satisfying community concerns with respect to a development agreement, insofar as development agreements are subject to repeal by voter referendum.46 In fact, a development agreement cannot legally take effect until after the 30-day period for such a referendum expires.47 There is also a 90-day statute of limitations to challenge the adoption or amendments of any development agreement approved after January 1, 1996.48
43 See generally Cal. Gov’t Code § 66000(b) (excluding “fees collected under development agreements” from the type of fee covered under the Mitigation Fee Act) and following. 44 See generally Cal. Pub. Res. Code § 21000 and following. 45 See Cal. Gov’t Code § 65867.
46 See Cal. Gov’t Code § 65867.5.
47 See Cal. Elect. Code § 9141; Referendum Committee v. City of Hermosa Beach, 184 Cal.
App. 3d 152 (1986); Midway Orchards v. County of Butte, 220 Cal. App. 3d 765 (1990). 48 See Cal. Gov’t Code § 65009.
PROCESSING
D EVELOPMENT
AGREEMENTS WITH
OTHER A PPROVALS
Development agreements
may be processed with
other land use approvals
for the same project, such
as a conditional use permit
or subdivision map, in
which case the parties
should consider whether it
is advantageous to seek
simultaneous approvals, or
have one approval follow
another.
ITEM 18.1.
ATTACHMENT 6
I NSTITUTE for LOCAL S ELF GOVERNMENT C OMMUNITY LAND U SE P ROJECT | 33 As a practical matter, though, it may be advisable to include stakeholders (interested parties such as community groups, business leaders and others interested in the community’s development) in the development agreement process. While it may not be practical to allow stakeholders to attend negotiations, it may be possible to consult with them ahead of time, or perhaps
on a
“meet
and
confer”
basis as
negotiatio
ns
proceed.
As the
following
example
illustrates,
the
process
of
negotiatin
g a
developm
ent
agreemen
t is
susceptibl
e to
“commun
ity backlash” in instances when community members find out after the fact, that public agency staff has agreed to recommend what they perceive as controversial concessions.
Meeting with stakeholders ahead of time to discuss possible actions, such as attracting a large retail outlet, allows legitimate issues to be aired before serious negotiations begin. After some evaluation, stakeholders may decide their issues can be resolved, or the agency may decide it should re-evaluate its priorities. In the case of the merchants in this illustration, had they been given the opportunity to meet with the agency to learn about the experiences of other cities, they might have concluded that attracting Taxco would actually help business retention.
I LLUSTRATION — TAXCO
Destination City is looking for a way to increase its general fund. Taxco is a large retail outlet that generates more than $500,000 worth of sales tax revenue each year for other cities in which it is located. Taxco plans to build a store in the vicinity.
Public agency senior staff meet with Taxco senior staff to discuss the benefits of locating in Destination City. Aware that a neighboring city would also like a Taxco retail outlet, these meetings are kept confidential. Senior staff suggest ways that Destination City may be able to write down land costs, waive development fees and otherwise provide incentives for Taxco to locate in their city. Eighteen months later, a deal is struck and the terms are commemorated in a development agreement, which is to be reviewed by the planning commission and approved by city council.
At this point, Bill Chamber, president of the Downtown Merchants Association, sees the public hearing notice and learns for the first time that the city is considering agreeing to a variety of incentives to entice Taxco to locate in Destination City. Mr. Chamber calls a meeting of the merchants.
During the meeting, merchants express their concerns that the city should not entice Taxco to locate in the city; it is not fair for the city to agree to monetary incentives not offered to other businesses; the city ought to be concerned about the very real threat that Taxco will run other merchants out of town; and the city should focus on business retention rather than attracting new businesses. The group decides to formally oppose approval of the development agreement. They also discuss initiating a recall of the enti re city council, for secretly acting against the business community’s interests. Unlike the Sports World illustration, these parties do not live happily ever after.
ITEM 18.1.
ATTACHMENT 6
34 | D EVELOPMENT A GREEMENT M ANUAL
Meeting and conferring with stakeholders during the negotiation process allows them to pro vide input on the specific terms and conditions that are being negotiated. Many times, the same underlying goal can be accomplished in a slightly different manner to accommodate stakeholders’ needs.
In the Taxco example, city staff needed to keep the
negotiations confidential, so that a neighboring city
would not undermine their efforts. While the need
for confidentiality makes it more difficult to include
stakeholders, including them in the process without
sharing every detail enables the local agency to be
on a firmer community relations footing when it
comes to approving the development agreement.
PUBLIC INPUT ON CONSIDERATION OF
THE PROPOSED AGREEMENT
The development agreement law specifies what kind
of public hearings and notice must be given when an
agency gets to the point of considering whether to
approve development agreements. 49 Hearings must
be held by the local planning agency and its
governing body.50 Such hearings are subject to the
state’s open meetings laws, 51 which require that all
interested persons be allowed to attend these
meetings52 and provide public comment before the
planning commission’s or governing body’s
consideration of the development agreement. 53
Members of the public are also entitled to request
copies of all documents included in the agenda
packet.54 The state’s Public Records Act also may entitle members of the public to request other documents relating to the proposed agreement.55
49 See Cal. Gov’t Code § 65867.
50 See Cal. Gov’t Code § 65867.
51 See Cal. Gov’t Code § 54950 and following.
52 See Cal. Gov’t Code § 54953(a).
53 See Cal. Gov’t Code § 54954.3.
54 See Cal. Gov’t Code § 54954.1.
55 See Cal. Gov’t Code § 6250 and following. An exception may be preliminary drafts of development agreements if they are not kept in the ordinary course of business. See Cal. Gov’t Code § 6254(a).
ON C ENTRAL
R ECOVERY OF
COSTS
Depending on the nature o f
the project, negotiating a
development agreement can
involve significant costs for
the public agency in the form
of staff time and legal fees.
An agency may want to
provide for the recovery of
some or all of those costs
either in its local procedures,
as part of the cost of
processing a development
agreement or as a term of the
agreement itself.
The agency will want to
ensure that it does not
assess the project proponent
more than the agency’s
actual costs. One way is to
establish an hourly rate and
regularly record staff time.
ITEM 18.1.
ATTACHMENT 6
I NSTITUTE for LOCAL S ELF GOVERNMENT C OMMUNITY LAND U SE P ROJECT | 35
NOTICE ISSUES
The development agreement law provides notice requirements for hearings related to the potential adoption of a development agreement.56 The notice is the same as that required under the planning and zoning law for:
• Plans (publication in at least one newspaper of general circulation or posting in three public places within the jurisdiction if there is no newspaper of general
circulation, with special consideration given to drive - through facilities);57
• Projects (10-day mailed notic e to
the property owner, the project
proponent, affected local agency
service/facility providers; and 58
• Neighboring property owners
within 300 feet, as well as
published and posted notice, again
with special consideration given to
drive-through facilities). 59 The
agency must also give notice to
anyone who has requested it. 60
The notice must contain:
• The date, time, and place of the hearing;
• The identity of the hearing body;
• A general explanation of the matter to be considered
(in other words, the development agreement); and
56 See Cal. Gov’t Code § 65867.
57 See Cal. Gov’t Code § 65090.
58 This includes each local agency expected to provide water, sewage, s treets, roads, schools, or other essential facilities or services to the project, whose ability to provide those facilities and services may be significantly affected. See Cal. Gov’t Code § 65091(a)(2). 59 See Cal. Gov’t Code § 65091.
60 See Cal. Gov’t Code § 65092: “When a provision of this title requires notice of a public hearing to be given pursuant to Section 65090 or 65091, the notice shall also be mailed or delivered at least 10 days prior to the hearing to any person who has filed a written request for notice with either the clerk of the governing body or with any other person designated by the governing body to receive these requests. The local agency may charge a fee which is reasonably related to the costs of providing this service and the local age ncy may require each request to be annually renewed.”
A NOTE ON
D EVELOPMENT
A GREEMENTS IN
THE C OASTAL ZONE
Local agencies in the coastal
zone may approve
development agreements
only if they have a certified
local coastal program or if
the California Coastal
Commission formally
approves the development
agreement. See Cal. Gov’t
Code § 65869.
ITEM 18.1.
ATTACHMENT 6
36 | D EVELOPMENT A GREEMENT M ANUAL
• A general description, in text or by diagram, of the
location of the property that is the subject of the
development agreement, and hence the hearing.61
To facilitate informed public discussion of the matter, it may be helpful to include a brief explanation of what development agreements are. A sample of such a description is available online at www.ilsg.org/devtagmt .
DECISIONMAKER INPUT ON DEVELOPMENT
AGREEMENTS AND FINDINGS
A local agency’s development agreement
procedures present an opportunity for the
governing body to ask the planning commission to
make a recommendation on whether to ap prove
the agreement and weigh in on proposed findings.
INVOLVING THE PLANNING
COMMISSION EARLY ON
When development agreements are negotiated by
staff, subject to planning commission review before final approval by the legislative body, planning commissioners may feel they have been “left out of the loop.” This may be especially true if the legislative body is the only one receiving updates as negotiations proceed.
The consequen ces of the planning commission
feeling insufficiently involved may include:
• Bad feelings on the part of
individual planning
commissioners;
• A lack of planning commission
input during negotiations; and
61 See Cal. Gov’t Code § 65094.
C AN A
DEVELOPMENT
AGREEMENT BE
APPROVED BY
INITIATIVE?
Yes. See: Citizens for
Responsible Government v.
City of Albany, 56 Cal. App.
4th 1199 (1997).
WHAT
CONSTITUTES
ENTRY INTO THE
DEVELOPMENT
AGREEMENT?
The development
agreement law is not
entirely clear. A good
practice is to secure on the
agreement the signature of
the person authorized to
execute agreements on
behalf of the local agency
shortly after the adoption
of the development
agreement ordinance by the
governing body.
ITEM 18.1.
ATTACHMENT 6
I NSTITUTE for LOCAL S ELF GOVERNMENT C OMMUNITY LAND U SE P ROJECT | 37 • Less protection of elected officials’ interests by
appointed commissioners.
One approach to informing the planning commission early on is to schedule the project for discussion at a regular planning commission meeting at the start of negotiations. This provides the planning commission with an opportunity to provide its input to the negotiating team on key policies and objectives to be achieved on behalf of the community through the development agreement.
Another approach is to convene a subcommittee of the planning commission as an adjunct to the negotiation process. If the subcommittee is less than a quorum of the commission, the discussion may occur without the overlay of open meetings requirements. 62 While the
subcommittee could be made part of the negotiating
team, it may be more practical, given the competing
demands on planning commissioners’ time, for staff to
confer with the subcommittee outside of negotiations.
This approach allows the negotiating team to benefit
from at least some planning commissioners’
perspective, while the negotiating team remains
reasonably sized.
PLANNING COMMISSION RECOMMENDATION AND
INPUT ON FINDINGS
An agency’s development agreement proced ures can solicit the planning commission’s input both on whether the development agreement should be approved, and on the findings accompanying any approval. Such findings may include whether the agreement:
• Is consistent with the objectives, policies, general land uses and programs specified in the agency’s general
plan and any applicable specific plan;
• Is consistent with the provisions of the agency’s zoning regulations;
62 See Cal. Gov’t Code §§ 54952.2(a) (“As used in this chapter, ‘meeting’ includes any congregation of a majority of the members of a legislative body at the same time and place to hear, discuss, or deliberate upon any item that is within the subject matter jurisdiction of the legislative body or the local agency to which it pertains.”) 54952 (“As used in this chapter, ‘legislative body’ means: … (b) A … committee … of a local agency, whether permanent or temporary, decision-making or advisory, created by charter, ordinance, resolution, or formal action of a legislative body. However, any advisory committee, composed solely of members of the legislative body which are less t han a quorum of the legislative body are not legislative bodies …”).
P RACTICE P OINTER
Some practitioners ask the
project proponent to sign
the proposed agreement
before the agreement is
introduced for approval.
ITEM 18.1.
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38 | D EVELOPMENT A GREEMENT M ANUAL
• Promotes the public health, safety, and general
welfare;
• Is just, reasonable, fair an d equitable under the
circumstances facing the agency;63
• Has a positive effect on the orderly development of
property or the preservation of neighboring property
values; and
• Provides sufficient benefit to the community to justify entering into the agreement.
GOVERNING BODY HEARING AND DECISION ON THE
DEVELOPMENT AGREEMENT
As discussed in Chapter 3, well-articulated planning policies and objectives should increase the likelihood that the staff’s and planning commission’s input to the development agreement negotiation process
produces a satisfactory agreement for the governing
body. Adoption of an interest-based negotiation
approach may also allow the governing body to
provide direction to negotiators early on in the
process in open session, consistent with the state’s
open meeting laws. 64
Well-conceived and up-to-date planning policies also
avoid the prospect of asking staff to negotiate in a
vacuum, with little or no immediate direction or
feedback from decisionmakers. This maximizes the
likelihood that the agreement presented for decision-
maker approval reflects their concerns and policy
direction. It m inimizes the likelihood of having to
renegotiate the agreement from the dias. (The
downside of which, is inclusion of language in the
agreement which may have unintended
consequences or not fully protect the agency’s
interests.)
63 See generally Morrison Homes Corp. v. City of Pleasanton, 58 Cal. App. 3d 724 (1976) (analyzing the “contracting away the police power” issue in the context of an annexation agreement). See also Denio v. City of Huntington Beach, 22 Cal. 2d 589 (1943); Carruth v. City of Madera , 233 Cal. App. 2d 688 (1965).
64 See generally Cal. Gov’t Code § 54950 and following (The Ralph M. Brown Act).
P RACTICE P OINTER
A development agreement
typically freezes regulatory
requirements in effect at the
time the agreement is
executed. For that reason, it
is helpful to collect all of
those regulatory documents
and file them with the
approved development
agreement. This avoids
confusion several years
afterwards as to what
regulatory requirements
apply.
Copies should also be
provided to the project
proponent.
ITEM 18.1.
ATTACHMENT 6
I NSTITUTE for LOCAL S ELF GOVERNMENT C OMMUNITY LAND U SE P ROJECT | 39
ACTION ON THE AGREEMENT
The governing body must approve a development agreement by resolution or ordinance.65 Ordinances must go through a two-reading process, with at least a five-day intervening period.66 Changes require an additional five-day waiting period. 67
RECORDATION AND OTHER POST-
APPROVAL STEPS
After a development agreement is approved, the clerk of the governing body must:
• Record a copy of the development agreement within
10 days of the entity’s entry into the agreement, along with a description of the land subject to the
development agreement;68 and
• Publish the ordinance approving the development
agreement.69
65 See Cal. Gov’t Code § 65867.5.
66 See Cal. Gov’t Co de §§ 36934 (city requirements), 25131 (county requirements). 67 See Cal. Gov’t Code §§ 36934 (city requirements), 25131 (county requirements). 68 See Cal. Gov’t Code § 65868.5.
69 A clerk must publish each ordinance (or a summary of it) within 15 days afte r passage as follows: 1) In a newspaper of general circulation published within the jurisdiction, or 2) If there is none, by posting as required by state law. Cal. Gov’t Code §§ 36933 (cities), 25124 (counties) (note that state codes are available online at http://www.leginfo.ca.gov by clicking on
“California Law”). The publication must include the names of the governing body members voting for and against the ordinance. Cal. Gov’t Code §§ 36933(c) (cities), 25124 (counties).
ITEM 18.1.
ATTACHMENT 6
40 | D EVELOPMENT A GREEMENT M ANUAL
In cities and counties, failure to satisfy the publication requireme nt in a timely manner prevents the ordinance from taking effect or being valid.70
AMENDING THE DEVELOPMENT
AGREEMENT
After a development agreement has been signed, it may be amended only by mutual agreement of parties.71 Most development agreement procedures require amendments that are initiated by the project proponent to go through the same process as the initial application for the development agreement.
For local agency -initiated amendments, the procedures usually require notice to the project proponent a nd provision of information about the process that the agency will employ.
DEVELOPMENT AGREEMENTS AND
ACCOUNTABILITY
Fundamental to the concept of an enforceable agreement is the notion that each party will do what it promises to do in the agreement. To underscore that notion, the development agreement law requires local agencies to include at least an annual review of the project proponent’s compliance with the delineated responsibilities.72 The review must require the proponent to demonstrate good faith compliance with the terms of the agreement.73 If a local agency finds, based on substantial evidence, that such compliance has not occurred, the agency may modify or terminate the agreement. 74 In addition, the development agreement law provides that the development agreement is “enforceable by any party.” 75 A development agreement typically contains provisions specifying procedures for notice and termination in the event of a default by either party.
70 Cal. Gov’t Code § 36933(b) (cities). Cf. Cal. Gov’t Code § 25124(c) (providing failure of county clerk to publish means the ordinance does not take effect for 30 days). 71 See Cal. Gov’t Code § 65868.
72 See Cal. Gov’t Code § 65865.1.
73 See Cal. Gov’t Code § 65865.1.
74 See Cal. Gov’t Code § 65865.1.
75 See Cal. Gov’t Code § 65865.4.
P RACTICE P OINTER
Some agencies specify the agencies’
annual review procedures in the
agency’s ordinances and resolutions
relating to development agreements
Others specify the annual review
procedures in the development
agreement itself. The latter approach
makes the annual review process
part of the negotiations process as it
is the subject of negotiation and the
resolution of that negotiation
memorialized as a term of the
development agreement itself.
Other implementation strategies
include:
1. Assigning one person to
monitor agreement
performance.
2. Creating an implementation
matrix (cross-referencing the
section of the development
agreement, the obligation, the
trigger/timing, which local
agency department has lead
responsibility, and the
status).
Having a well-thought out
implementation strategy helps
ensure the agency gets the benefit of
its bargain.
ITEM 18.1.
ATTACHMENT 6