San Clemente City Council
September 20, 2022

In addition to the lack of available properties for sale or lease in the RSC Business Park, many of the properties are in commercial condominium configurations that are unsuited for use by an emergency shelter because of possible conflicts with neighboring businesses sharing a parking lot. The ideal situation would be for a shelter to be located on a separate parcel (such as ESC’s 10 acres of land) with its own parking lot to manage the security of its residents.

The City’s Housing Element further described the possibility of using the so-called “remaining parcels” on which there are no building structures for the development of shelters, because these may be used as parking, storage, maintenance yards, or for other purposes. But again, it is highly improbable that any property owner in the RSC Business Park would lease its office parking lot or an outside storage area for use by an emergency shelter provider because these parcels are used and designed for business-related purposes. The Housing Element did not indicate where these types of remaining parcels are located, or the likelihood of a shelter being developed on these remaining parcels.

The Housing Element claimed that a portion of a large industrial building could accommodate a 5,000 sq. ft. shelter, but, again, failed to support this statement with anything but conjecture. Therefore, the statement that the RSC Business Park, as the site for the ES Overlay Zone, provides realistic capacity for development of an emergency shelter is not supported by any credible evidence.

Finally, the Housing Element asserted that unidentified service providers from unknown locations were polled by an anonymous pollster concerning the 35-bed limit and other shelter development standards, and they responded that they had no issues or concerns with them, but acknowledged that the anticipated cost to operate an emergency shelter is an impediment. (HEB9.) Since the City is relying on this survey to substantiate its continued use of the 35-bed limit and 300-foot separation, the survey should be included in the Housing Element and available for review. The lack of transparency concerning this important survey raises questions about whether the service providers understood the constraints to development and the economy of scale to lease or purchase parcels within the RSC Business Park that comprises the ES Overlay Zone.

Without more, this survey cannot be the sole basis of support for the City’s 35-bed maximum limit.

4. Failure To Analyze The 300-Foot Separation Between Shelters as a Constraint:

The Housing Element continued to require a 300-foot separation between shelters. As indicated above, however, three of the four vacant parcels listed in the Housing Element are within 300 feet of each other and therefore only one 35-bed shelter could be developed. The opportunity to develop a shelter in the ES Overlay area is so limited by economy of scale, and the 300-foot separation land control only further exacerbates the high unlikelihood of a shelter ever being developed.

List of Currently Available Properties in the RSC Business Park Address Space Available Suitability
940 Calle Negocio, 1 office space 790 sq. ft. Too small 901 Calle Amanecer, 1 office space 2,785 sq. ft. Too small 940-946 Calle Amanecer, 3 office spaces 4,540 sq. ft. Too small 901 Calle Amanecer, 7 office spaces 20,076 sq. ft. Too large 927 Calle Negocio, entire office building 71,397 sq. ft. Too large 473
Ms. Marisa Prasse
Mr. Paul McDougall
December 6, 2021

5. Failure To Explain The Lack Of Interest In Developing An Emergency Shelter In The Last Planning Period
Setting aside for a moment the logistical barriers of trying to find available parcels suitable for the development of three (3) 35-bed, maximum-capacity emergency shelters, that are located 300 feet from each other, in the RSC Business Park, the City also failed to address the loud objections by the Business Park owners to the establishment of any emergency shelter(s) in the Park, or the surrounding areas.

The RSC Business Park owners have strongly protested and taken firm action to prevent the use of any Business Park parcels from being leased or sold for purposes of establishing an emergency shelter. In 2018-2019, ESC experienced this firsthand when it was searching for a parcel to lease or purchase for an emergency shelter in the RSC Business Park. Specifically, as soon as a Business Park owner discovered that ESC wanted the parcel or office building for an emergency shelter, the communications were cutoff.

Significantly, on this point, the Housing Element tried to rely on two (2) attempts to locate a shelter within the ES Overlay area, as proof that: “There has been interest in establishing an emergency shelter in the ES Overlay. However, both examples cited by the City turned out to be complete failures, thus underscoring the fact that the RSC Business Park is an unsuitable location for a shelter.
 “In 2015, Family Assistance Ministries (FAM) proposed to install a shelter for families with children within the ES Overlay. However, their target clients, families, would not have satisfied SB 2 [and it would have not provided a noticeable impact for the unhoused residents of the City since most of them are single men].  “In [August] 2019, there was interest in developing a shelter in the ES Overlay but it was found to be cost prohibitive.”” (HE-44; emphasis added.) The City’s admission that, in 2019, it was cost prohibitive to locate a shelter in the ES Overlay area speaks volumes. Yet, despite this admission, the City offered no program to address this issue. Although the Housing Element provided a brief discussion of general funding resources, there was no discussion of any efforts San Clemente has made to obtain funds to develop a shelter.

The fact that the City relied on these two examples to establish alleged suitability is quite surprising. As ESC pointed out in its letter to HCD dated August 9, 2021, there could be no greater example of the overwhelming objections to the development of emergency shelters in the ES Overlay than what occurred in August 2019 when it was found to be cost prohibitive to locate a shelter in the RSC Business Park. At that time, City staff had submitted a proposal to develop a shelter in the ES Overlay. But as recorded in the August 20, 2019 City Council meeting minutes, there were initially more than twenty (20) public comments offered (the majority of which were in strong opposition to the proposal) before the City Council took a straw vote, by which it unanimously rejected the proposal. This was followed by another 16 public comments (with more vehement objections), and then a City Council final vote that again unanimously rejected the recommendations for the development of a homeless shelter in the ES Overlay / Business Park. 474
Ms. Marisa Prasse
Mr. Paul McDougall
December 6, 2021

It is important to again raise these points in this letter, because the initial public comments at the 2019 City Council included those of Gene James, who at the time was not a City Council member, but was later elected to the position and is currently serving in the role of Mayor Pro Tem. Notably, Mayor Pro Tem James is recognized as one of the most outspoken and strident opponents of the development of emergency shelters and affordable housing in the City.

The public comments at the August 2019 City Council meetings also included opposition from various business owners from the RSC Business Park. For example, RSC Business Park owner Glen[n] Walker not only opposed such a proposal during this August 2019 City Council meeting, but approximately six (6) months later became a plaintiff in a lawsuit filed by several Business Park owners against the RSC Business Park Community Association Board of Directors and ESC for the sale of the 10 acres, in the lawsuit known as Olen Properties Corp. v. Rancho San Clemente Bus. Park Comm. Assoc., et al, OCSC Case No. 30-2020-01130657-CU-OR-CJC.

At about this same time in the summer/fall of 2019, ESC was negotiating with the RSC Business Park to purchase the 10 acres that it currently owns. When this news was released, a meeting was hastily arranged in October 2019 of interested RSC Business Park owners and related parties, to determine how best to oppose ESC’s purchase of the 10 acres. The RSC Business Park’s attorney, Mr. Tom Mauriello, went so far as to suggest that even the “CC&Rs [of the RSC Business Park that comprises the ES Overlay Zone] may preclude the development of a shelter, if the land remains within the CC&Rs, for a variety of reasons.” (See, id, at Exhibit 1.) Moreover, then-San Clemente City Manager, Mr. James Makshanoff, stated that the City had filed an amicus brief in opposition to the Ninth Circuit case of Martin v Boise (9th Cir. 2019) 920 F.3d 584, and it was his hope that this would result in changes to the enforcement of camping ordinances, such that emergency shelters would not be required in San Clemente.

A video of the meeting with panel members including then-San Clemente City Manager Mr. Makshanoff, attorney Mr. Mauriello, and Mr. Wynne of Kidder Mathews, is located at:
https://www.wynnecre.com/news/san-clemente-homeless-shelter-vote-update-error-in-judgement This video confirms the intent of the City and the RSC Business Park owners to prevent the development of a shelter within the ES Overlay Zone.

In light of the foregoing, the facts do not support the Housing Element’s conclusion that there are an adequate number of available parcels/buildings in the ES Overlay to accommodate three (3) shelters of about 5,250 square feet each, that are set a minimum of 300 feet apart, and with the public outcry against any shelters being developed in the RSC Business Park ES Overlay Zone, there clearly will be no opportunities for any shelter operator(s) to obtain any such parcels or buildings for that purpose.

6. Failure To Address The Efficacy Of The Ride Share Program The City’s adopted Housing Element discussed access to public transportation by listing the number of SC RIDES trips in the area between 2017 and 2021. (See, e.g., page HE-46.) This discussion unfortunately failed to mention that these trips included the “Summer-Only” beach trolly program, which undoubtedly increased these numbers substantially. The City also conceded that it did not know how many, if any, of the listed trips were taken by homeless persons. At the current time, Family Assistance Ministry (“FAM”) has stated that it will no longer give transportation vouchers to any unhoused residents to access FAM’s services in the RSC Business Park. Lyft drivers are also refusing to give rides to homeless individuals seeking service, even if they have a “special code” for a trip. 475
Ms. Marisa Prasse
Mr. Paul McDougall
December 6, 2021

In light of these recent developments, it appears there is no established transportation program serving homeless residents to access services in the ES Overlay or elsewhere in the City, and the City has failed to adequately address the efficacy of the Ride Share program.

7. Failure to Identify Additional Sites Where Emergency Shelters Can Be Accommodated By-Right
In response to requests for the City to identify additional sites for emergency shelters, the City identified a 1.9-acre parcel located adjacent to Heritage Christian Fellowship. This parcel is within the ES Overlay, and is also designated as a Site Inventory Parcel for low income housing, as well for the Affordable Housing Overlay under Program 1. (See, the depiction set forth as Figure 4-1: Residential Sites and Rezone Sites Inventory, HE-87; see, also, aerial photo below.) Notwithstanding the City’s attempts to declare this site as a prime parcel for many different purposes, it has been reported that Heritage Christian Fellowship has already designated churchspecific uses for this parcel, such that it is highly unlikely any 35-bed shelter or affordable housing will ever be developed on this site: https://heritagesc.org/parking-lot-project [plans for parking lot].

On the related topic of possible alternatives, in Appendix B of the City’s Housing Element, which is entitled “Review of Past Accomplishments,” the City highlighted its achievements with Programs 13 and 14, but the information contained therein is nonfactual and untrue.

Appendix B: Program 13: For the Program 13: “Zoning Ordinance Monitoring” discussion, the City alleged that it is in the process of collaborating with neighboring cities to apply for State grants and other resources in order to address the needs of the unsheltered. However, on October 28, 2021, Council member Gene James is quoted in the OC Voice as stating that the City tried to partner with neighboring cities on a temporary shelter in an unincorporated part of the county to allow the sheriff’s department to enforce camping laws. “Unfortunately, our neighboring cities rejected the idea.” (See, October 28, 2021 article attached as Exhibit 3.) 476
Ms. Marisa Prasse
Mr. Paul McDougall
December 6, 2021

Appendix B: Program 14: For the Program 14: “Monitoring Emergency Shelter Overlay” discussion, the City identified three (3) achievements, two (2) of which were already shown to be unsubstantiated as discussed above (i.e., (1) the City’s purported interest in locating a shelter in the ES Overlay in 2019, which was admittedly unsuccessful because “it was found to be cost prohibitive,” and (2) the supposed availability of an established transportation program for the unhoused residents of the City, which appears to not exist).

On page HE-B8-B9 of the Appendix, the City discussed a third alleged accomplishment, with the City designating a campsite area for the homeless to provide for the needs of the unsheltered. The City concluded that, due to the significant reduced homeless population in the City, the campsite program was ended after seven months (May to December 2019).

Contrary to the City’s allegations, however, as set forth in an article dated January 24, 2020, by Alex Prieto, the campsite was deemed to be an inhumane and substandard “tent city” that forced the homeless residents to camp immediately adjacent to the City’s waste treatment plant. This ill-stated venture eventually was shutdown. (See the January 24, 2020 article attached hereto as Exhibit 4.)
Moreover, an Orange County Register article dated August 30, 2019, described an incident when 70 people were deceptively removed from the makeshift homeless campground for an alleged clean-up of the site, but then the City only allowed 23 of them to return. After removing everyone from the campsite, the City suddenly imposed a requirement that all campers were required to provide proof that (1) they were residents of the City, or (2) had firm ties to the City, either by showing a valid driver’s license or other identification (such as a utility bill indicating prior residence). This new requirement was imposed three months after the campsite ordinance was adopted. (See the August 30, 2019 article attached hereto as Exhibit 5.) In light of the foregoing, it is clear that the City has not identified any plausible additional sites where Emergency Shelters can be accommodated by right, and it is necessary to do so, including the ESC’s 10 acres as discussed below.

C. ESC’s Recommendations for the Housing Element Will Make a Notable Difference for the Homeless and Underprivileged Residents of San Clemente.  Recommendation No. 1:

For Recommendation No. 1, ESC respectfully requests that HCD require the SB 2 ES Overlay to be amended and expanded to include all land within the RSC Business Park Specific Plan, and especially including ESC’s Parcel Nos. 688-011-01 and 688-011-02.

The Housing Element stated: “[o]n October 18, 2016, the City Council adopted the Emergency Shelter (ES) Overlay within a portion of the Rancho San Clemente Specific Plan (see Figure 3-1).” ESC recommends that the ES Overlay should cover the entirety of the Rancho San Clemente Specific Plan.

In addition, Figure 4-1 below of the Housing Element is entitled “Residential Sites and Rezone Sites Inventory.” (HE-87.) It shows blocks of red that represent the areas the City is considering for rezoning purposes for the development of various residential sites. These sites, however, are already fully developed and unsuitable for such purposes. 477
Ms. Marisa Prasse
Mr. Paul McDougall
December 6, 2021

By way of example, the site of the Orange County Mattress store is depicted as a very small box on the far left, the Pico Plaza Shopping Mall is shown as a larger box on the far left, the Target / Tesla Supercharger site is depicted as an oblong-shaped box at the top of the diagram, and the Plaza Pacifico site is displayed as the largest red box located in the middle of Figure 4.1.

The Plaza Pacifico site has been developed with large commercial retail stores (e.g., Walmart, Lowes, Albertsons, Michaels, Office Depot, among others) along Avenida Pico in San Clemente:

Significantly, the Plaza Pacifico area with the large box stores along Avenida Pico in San Clemente is immediately adjacent to the SB 2 ES Overlay, as is ESC’s property. (See the Figure on the following page, which shows ESC’s parcels in yellow.) For obvious reasons, ESC’s property would be far less expensive for the development of an emergency shelter and affordable housing than the purchase and relocation of large retail stores. ESC’s site would also be fully compatible and complementary to any affordable housing located within this area of the City.

In light of the foregoing, ESC submits that the SB 2 ES Overlay should include all land within the Business Park Specific Plan, and especially ESC’s Parcel Nos. 688-011-01 and 688- 011-02, to best ensure the development of an emergency shelter, transitional and supportive housing, and much-needed affordable housing for the extremely low, very low, and low-income residents of the City. (See the attached Exhibit “A” also set forth below.) 478
Ms. Marisa Prasse
Mr. Paul McDougall
December 6, 2021

(1) The City’s “Residential Sites and Rezone Sites Inventory” in red; (2) The current SB 2 Overlay at the Business Park in purple with a red border; and (3) ESC’s Parcel Nos. 688-011-01 and 688-011-02 (that are part of the Business Park under the Specific Plan) in yellow:
479
Ms. Marisa Prasse
Mr. Paul McDougall
December 6, 2021

 Recommendation No. 2:

ESC recommends that the Housing Element be revised to include implementation programs for the amendment of the ES Overlay Ordinance that removes regulatory barriers to the development of an emergency shelter. The specific regulatory barriers to be removed include:
 Remove the “Separation” standard and any requirement that emergency shelters cannot be located within 300 feet of each other (HE-46); and  Remove the “Maximum Number of Beds” standard with the 35-bed maximum limit for an emergency shelter (HE-47).

The Housing Element should further clarify that these limits to do not apply to Low Barrier Navigation Centers or supportive housing.
a. The Separation standard: The SB 2 ES Overlay is a small area of San Clemente, and it would be impossibly difficult to develop and locate no less than three (3) 35-bed emergency shelters within the Business Park that are spaced 300 feet apart for the last count of 96 unhoused residents in the City. No other protected class of housing has a separation requirement in the zoning code.

Ordinarily, a separation of shelters might be allowed under SB 2, provided that it does not discourage the development of shelters. Given that the City has restricted the SB 2 ES Overlay to only a portion of the overall Business Park, and the smaller buildings are located in one area of the Business Park, the 300-foot radius limit will undoubtedly prevent development of more than one emergency shelter, particularly when coupled with a 35-bed limit. Unless the 35-bed limit is increased and more areas are added to the SB 2 ES Overlay, both the SB 2 ES Overlay and the Draft Housing Element will need to be revised to eliminate the 300-foot separation requirement. b. The Maximum Number of Beds standard: The 35-bed limit is unreasonably low. The bed limit should be increased to allow for a more reasonable number of beds in order to encourage and facilitate the development of a year-round shelter that could adequately serve the needs of the entire homeless population of San Clemente.

As noted, the Business Park consists of industrial buildings typically ranging from 9,000 sq. ft. to 43,000 sq. ft. in size and with prices between $188 to $264 or more per square foot. Smaller spaces are typically in multi-tenant buildings, making it unlikely that a landlord would rent to an emergency shelter if other business offices are located and being operated in the same building. Simply stated, the 35-bed limit in the ES Overlay and the Housing Draft Element is an obvious hindrance to the development of an emergency shelter in the RSC Business Park or elsewhere in San Clemente, and should either be removed or increased substantially.  Recommendation No. 3:

ESC further requests that the City’s Housing Element be revised to include an implementation program for the amendment of the zoning code to allow, by right, (a) Low Barrier Navigation Centers, (b) supportive housing, (c) emergency shelters, (d) affordable housing and (e) transitional housing, all within the SB 2 ES Overlay. 480
Ms. Marisa Prasse
Mr. Paul McDougall
December 6, 2021

In support, ESC notes that the City has already included one parcel from the SB 2 ES Overlay located on Avenida La Pata in its Figure 4-1 entitled: “Residential Sites and Rezone Sites Inventory.” (See Figure 4-1 diagram above, and the little red square slightly to the right of the big red block in the middle of the diagram, at HE-87.) Indeed, if this one parcel is acceptable for affordable housing and all related protected residential uses, it follows that the rest of the SB 2 ES Overlay should also be acceptable for all protected residential uses.  Recommendation No. 4:

ESC further recommends that its 10 acres of land purchased from the RSC Business Park should be included as part of the Figure 4-1 above, entitled “Residential Sites and Rezone Sites Inventory,” as a candidate for rezoning, and included in the Affordable Housing Overlay to allow for the development thereon of (a) Low Barrier Navigation Centers, (b) supportive housing, (c) emergency shelters, (d) affordable housing, and (e) transitional housing.  Recommendation No. 5:

Although Low Barrier Navigation Centers and supportive housing are discussed in the Housing Element, and it stated that these uses are permitted in areas zoned for mixed use and nonresidential zones permitting multi-family uses, the Housing Element did not specifically identify where each of these zones exist within the City. The Housing Element should include a map showing the location of each of these areas that have been zoned for mixed use and nonresidential zones permitting multi-family uses. Emergency shelters should also be allowed byright within these zones identified for Low Barrier Navigation Centers and supportive housing.  Recommendation No. 6:

For Recommendation No. 6, ESC requests a revision of Program 15 entitled “Monitoring of Emergency Shelter Overlay” to require implementation actions by designated deadlines, and performance criteria for a failure to do so. This would include three (3) implementation actions:

1. Assess and update the City’s ES Overlay Ordinance to eliminate (a) the 300-foot separation and (b) the maximum number of beds, by no later than April 1, 2022;

2. Implement a monitoring study every six (6) months to assess if the housing needs and corresponding services for all of the unhoused residents of the City have been met, with the first monitoring study to be commenced no later than April 1, 2022;

3. For every six-month monitoring period for which there is no approved and operational homeless shelter in the City, and/or for which not all of the unhoused residents of the City have been provided shelter or appropriate housing and services, the City will be required to take all necessary action to implement specific programs with zoning ordinance amendments. These shall include, but not be limited to, expanding the SB 2 ES Overlay to include any area zoned for “multiuse” or “commercial,” along with paying for hotel rooms for the unhoused, until such time as an emergency shelter is approved and operational in the City, so that the housing needs of all unhoused and homeless residents have been met. 481
Ms. Marisa Prasse
Mr. Paul McDougall
December 6, 2021

With these important revisions to the Housing Element, the City can satisfy its objectives, as well as meet the needs of the homeless and underprivileged residents of the City.

Thank you for your consideration of our comments.

Very truly yours,
Laura Lee Blake
General Counsel, ESC
cc: Ms. Jennifer Savage, San Clemente Senior Planner
Ms. Cecilia Gallardo-Daly, San Clemente Community Development Director ESC Board of Directors
482
Exhibit 1
483
Updates (/news/category/Updates), News (/news/category/News), Video (/news/category/Video) Homeless Shelter Ballot Update: “…
inaccurate.” “…it isn’t correct.” “…error in
judgment…”
October 14, 2019

SAN CLEMENTE

HOMELESS

SHELTER VOTE
UPDATE:
"...ERROR IN
JUDGMENT..."

HOME (/)

PROPERTIES (/PROPERTIES)

NEWS (/NEWS)
SEARCH (HTTPS://WWW.WYNNECRE.COM/SEARCH)

CONTACT (/CONTACT)
ABOUT

ABOUT (/ABOUT)
484
Site Location along Avenida Pico - Image by Jim Wynne’s Team at Kidder Mathews SAN CLEMENTE, CA: AN EMERGENCY PUBLIC FORUM BROUGHT SAN CLEMENTE, CA: AN EMERGENCY PUBLIC FORUM BROUGHT

TO LIGHT TRUTH, CONFUSION, AND MISINFORMATION ON THE TO LIGHT TRUTH, CONFUSION, AND MISINFORMATION ON THE PENDING RANCHO SAN CLEMENTE HOMELESS SHELTER. PENDING RANCHO SAN CLEMENTE HOMELESS SHELTER. (Two parcels, totaling 10 acres of land along Avenida Pico, are currently in escrow to be purchased by a homeless shelter operator. Read our previous article here. (https://www.wynnecre.com/news/newhomeless-shelter-in-escrow-on-pico-land)) By Arrow Santos
(Note: Jim Wynne and Kidder Mathews are NOTNOT involved with either party in this transaction.)

THE BACKGROUND & SETUP THE BACKGROUND & SETUP
After our original story (https://www.wynnecre.com/news/new-homeless-shelter-in-escrow-on-picoland) was posted just over a week ago, we received an overwhelming response from the community.

Many individuals were surprised or frustrated that an escrow had been opened with a homeless shelter operator without a public announcement. Others we spoke with were not aware their vote was needed before escrow can close. Multiple business park members even stated they had thrown their ballots away without realizing what was going on.
“IF THERE WAS NOT AN ERROR IN LAW, THERE WAS AN

ERROR IN JUDGMENT HERE ON THE PART OF THE ERROR IN JUDGMENT HERE ON THE PART OF THE BOARD OF DIRECTORS…,” JON PARRY OF BEMUS BOARD OF DIRECTORS…,” JON PARRY OF BEMUS

LANDSCAPE LANDSCAPE
WynneCRE at Kidder Mathews rapidly organized an emergency question and answer forum with San Clemente City Manager James Makshanoff and Rancho San Clemente Business Park Association Attorney Tom Mauriello. The RSCB Association are the Sellers of the two parcels in escrow. The City of San Clemente does not own the land and is not involved in the potential transfer.

The Outlets at San Clemente and the San Clemente Chamber of Commerce served as sponsors for the event, a special thanks to both for their community support. 485
Members of the Rancho San Clemente Business Park find their seats prior to the start of the Q&A Forum. Image by Jim Wynne’s Team at Kidder Mathews.

THE WHO & WHAT THE WHO & WHAT
Dozens of Rancho San Clemente business owners attended the event on Wednesday, October 9.

Below is a full video of the forum. We have also included text highlights with timestamps to jump to that section of the video. Click on the provided timestamps below to watch that specific video clip.

Please note, text highlights include sentences taken from longer answers, and the corresponding responses may have included additional language after or before chosen quotes. Thank you to all the business members who attended on such short notice.

Jim Wynne moderated the event, asking Makshanoff and Mauriello prepared questions for the first half of the session. The remaining time was open to audience members asking their questions and receiving direct responses on behalf of the City of San Clemente and the Rancho San Clemente Business Park Association.

During this live conversational investigation, various inaccuracies were discovered in the letter and ballot mailed out by the RSCB Association.

THE VIDEO
Q&A Forum On Pending Rancho San Clemente Homeless Shelter Vote -…

THE QUESTIONS & ANSWERS THE QUESTIONS & ANSWERS
486
QUESTION 1: QUESTION 1:
(HTTPS://YOUTU.BE/53Z7KQ2JBR0?T=264) (HTTPS://YOUTU.BE/53Z7KQ2JBR0?T=264) THE

LETTER WITH THE BALLOT FROM THE LETTER WITH THE BALLOT FROM THE

ASSOCIATION STATES THE TWO PARCELS IN
ESCROW ARE WITHIN THE CITY’S SB2 ESCROW ARE WITHIN THE CITY’S SB2 HOMELESS SHELTER ZONING OVERLAY. IS HOMELESS SHELTER ZONING OVERLAY. IS THAT ACCURATE? THAT ACCURATE? 4:24
(HTTPS://YOUTU.BE/53Z7KQ2JBR0?T=264) (HTTPS://YOUTU.BE/53Z7KQ2JBR0?T=264) “No, it’s not. The properties are on the north side of …Avenida Pico and those are not in the SB2 zone,” said James Makshanoff.

After Makshanoff answered, Tom Mauriello replied, “Our understanding was the 10 acres are in the SB2 zone. The Buyer’s understanding is that they are in the SB2 zone.” “It doesn’t show the property,” Makshanoff flatly stated upon examining the zoning map provided to the attendees.

QUESTION 2: QUESTION 2:
(HTTPS://YOUTU.BE/53Z7KQ2JBR0?T=417) (HTTPS://YOUTU.BE/53Z7KQ2JBR0?T=417) THE

LETTER STATES IT IS UNKNOWN HOW THE LETTER STATES IT IS UNKNOWN HOW THE

BUYER COULD CIRCUMVENT THE OPEN SPACE BUYER COULD CIRCUMVENT THE OPEN SPACE

RESTRICTIONS, HOW COULD THEY OVERCOME RESTRICTIONS, HOW COULD THEY OVERCOME THE RESTRICTIONS? THE RESTRICTIONS? 6:57
(HTTPS://YOUTU.BE/53Z7KQ2JBR0?T=417) (HTTPS://YOUTU.BE/53Z7KQ2JBR0?T=417) 487
(HTTPS://YOUTU.BE/53Z7KQ2JBR0?T=417) (HTTPS://YOUTU.BE/53Z7KQ2JBR0?T=417) “…Measure V, which requires any open space in the City, any property designated as open space, if you’re going to develop that space and it’s greater than 1 acre in size then it has to go a vote of the people. And you need the majority of the City of San Clemente residents to develop that property,” explained Makshanoff in part.

Zoning Map Showing Proposed Shelter Location in “Open Space - Private” Zone.

QUESTION 3: QUESTION 3:
(HTTPS://YOUTU.BE/53Z7KQ2JBR0?T=583) (HTTPS://YOUTU.BE/53Z7KQ2JBR0?T=583)

COULD THE COUNTY TAKE THE PROPERTY COULD THE COUNTY TAKE THE PROPERTY

THROUGH EMINENT DOMAIN TO ALLOW A
HOMELESS SHELTER? HOMELESS SHELTER? 9:43
(HTTPS://YOUTU.BE/53Z7KQ2JBR0?T=583) (HTTPS://YOUTU.BE/53Z7KQ2JBR0?T=583) “I guess the County could do that, but would the County do that?” Makshanoff asked.

He then went on to read an email from Orange County Fifth District Supervisor Lisa Bartlett’s office. “If the Rancho San Clemente property owners were to approve the sale of the parcels for use as emergency shelter, Supervisor Bartlett would not support any effort to obtain County funding or ongoing shelter operations. Our office has verified that County staff is not in discussions with the Emergency Shelter Coalition and would not commit to using this property for a regional shelter,” Makshanoff read from the email text.

QUESTION 4: QUESTION 4:
(HTTPS://YOUTU.BE/53Z7KQ2JBR0?T=649) (HTTPS://YOUTU.BE/53Z7KQ2JBR0?T=649) THE

LETTER STATES THAT THE ASSOCIATION

BOARD BELIEVES THAT IF A SHELTER WAS BOARD BELIEVES THAT IF A SHELTER WAS

BUILT ON THE PARCELS, IT WOULD DECREASE BUILT ON THE PARCELS, IT WOULD DECREASE THE LIKELIHOOD OF A SHELTER BEING 488

THE LIKELIHOOD OF A SHELTER BEING
CONSTRUCTED IN THE BUSINESS PARK. HOW
WOULD YOU DESCRIBE THAT BELIEF? WOULD YOU DESCRIBE THAT BELIEF? 10:49 (HTTPS://YOUTU.BE/53Z7KQ2JBR0?T=649) (HTTPS://YOUTU.BE/53Z7KQ2JBR0?T=649) “I’m not convinced a shelter is inevitable,” Makshanoff shared. 11:39 (https://youtu.be/53z7Kq2jBR0? t=699)
Makshanoff continued, “We filed an amicus brief (/s/6BBAmicusBriefMartinvsCity.pdf)recently to have the Supreme Court take up the case of Martin V Boise that has placed a difficulty on Western cities when it comes to enforcement of different camping ordinances and such. We figure we’ll hear sometime later this month, or early November, if the Supreme Court is going to hear that case.” Mauriello clarified for the audience, “People have been discussing the owner vote as a vote to sell the parcels. It’s not a vote whether to sell the parcels or not. It’s a vote required to terminate the parcels from conveyance and the CC&R’s of the Master Association. It might be a subtle difference, but the Board did not need approval of the owners to vote to sell the parcels." 13:36 (https://youtu.be/53z7Kq2jBR0?t=816)
“They’ve been tough parcels to get people interested in. We’ve talked to various buyers over the years and those efforts were unsuccessful,” said Mauriello.

QUESTION 5: QUESTION 5:
(HTTPS://YOUTU.BE/53Z7KQ2JBR0?T=1285) (HTTPS://YOUTU.BE/53Z7KQ2JBR0?T=1285) IF THE PROPERTY OWNERS DON’T VOTE TO
REMOVE THE PROPERTIES FROM THE CC&R’S, REMOVE THE PROPERTIES FROM THE CC&R’S, IS THERE ANYTHING IN THE CC&R’S THAT IS THERE ANYTHING IN THE CC&R’S THAT

WOULD PREVENT A HOMELESS SHELTER FROM
BEING BUILT? BEING BUILT? 21:25
(HTTPS://YOUTU.BE/53Z7KQ2JBR0?T=1285) (HTTPS://YOUTU.BE/53Z7KQ2JBR0?T=1285) Mauriello answered, “My understanding is that the CC&R’s may preclude the development of a shelter, if the land remains within the CC&R’s, for a variety of reasons.” QUESTION 6: QUESTION 6:
(HTTPS://YOUTU.BE/53Z7KQ2JBR0?T=1385) (HTTPS://YOUTU.BE/53Z7KQ2JBR0?T=1385)

THE LETTER FROM THE ASSOCIATION STATES THE LETTER FROM THE ASSOCIATION STATES

THAT THE REMOVAL OF THE PARCELS FROM
THE CC&R’S IS A CONDITION OF THE CLOSE THE CC&R’S IS A CONDITION OF THE CLOSE OF ESCROW. COULD THE BUYER CHOOSE TO OF ESCROW. COULD THE BUYER CHOOSE TO

STILL PURCHASE THE PROPERTIES IF THE STILL PURCHASE THE PROPERTIES IF THE

PARCELS ARE NOT TERMINATED FROM THE PARCELS ARE NOT TERMINATED FROM THE CC&RS? DOES IT GIVE THEM THE RIGHT TO

TERMINATE ESCROW OR DOES IT TERMINATE ESCROW OR DOES IT 489

AUTOMATICALLY TERMINATE ESCROW IF THE AUTOMATICALLY TERMINATE ESCROW IF THE VOTE DOESN’T PASS? VOTE DOESN’T PASS? 23:05
(HTTPS://YOUTU.BE/53Z7KQ2JBR0?T=1385) (HTTPS://YOUTU.BE/53Z7KQ2JBR0?T=1385) “If that condition is not satisfied, the Buyer would not close. Could they choose to waive that condition and close? Theoretically yes, they could, but they won’t. He told me that,” answered Mauriello. 23:35 (https://youtu.be/53z7Kq2jBR0?t=1415)
QUESTION 7: QUESTION 7:
(HTTPS://YOUTU.BE/53Z7KQ2JBR0?T=1425) (HTTPS://YOUTU.BE/53Z7KQ2JBR0?T=1425) DO

THEY WANT THE CC&RS WAIVED FOR THE THEY WANT THE CC&RS WAIVED FOR THE ASSOCIATION FEES OR OTHER REASONS? ASSOCIATION FEES OR OTHER REASONS? 23:45 (HTTPS://YOUTU.BE/53Z7KQ2JBR0? (HTTPS://YOUTU.BE/53Z7KQ2JBR0? T=1425)
QUESTION 8: QUESTION 8:
(HTTPS://YOUTU.BE/53Z7KQ2JBR0?T=1453) (HTTPS://YOUTU.BE/53Z7KQ2JBR0?T=1453) IF

THE SALE TAKES PLACE AND THE OPEN SPACE THE SALE TAKES PLACE AND THE OPEN SPACE

ZONING IS REMOVED, WOULD THE SHELTER ZONING IS REMOVED, WOULD THE SHELTER BE LIMITED TO 35 BEDS? BE LIMITED TO 35 BEDS? 24:13
(HTTPS://YOUTU.BE/53Z7KQ2JBR0?T=1453) (HTTPS://YOUTU.BE/53Z7KQ2JBR0?T=1453) “Seeing as how this property is outside of the SB2 I would think it wouldn’t be subject to that 35-bed requirement…,” replied City Manager Makshanoff.

He later continued, “Mr. Connor [the Buyer] stated to me, and the City Attorney, and Mayor Pro Tem Dan Bane back in February, that he would do 75 beds there to start. When I asked him if the beds would be limited to homeless people from San Clemente, he said that they would start with San Clemente but that there was no guarantees that it would be just for San Clemente homeless people.” QUESTION 9: QUESTION 9:
(HTTPS://YOUTU.BE/53Z7KQ2JBR0?T=1581) (HTTPS://YOUTU.BE/53Z7KQ2JBR0?T=1581) IS

THE CITY OF SAN CLEMENTE WILLING TO

PURCHASE THE PARCELS FROM THE PURCHASE THE PARCELS FROM THE ASSOCIATION? ASSOCIATION? 26:21
(HTTPS://YOUTU.BE/53Z7KQ2JBR0?T=1581) (HTTPS://YOUTU.BE/53Z7KQ2JBR0?T=1581) QUESTION 10: QUESTION 10:
(HTTPS://YOUTU.BE/53Z7KQ2JBR0?T=1595) (HTTPS://YOUTU.BE/53Z7KQ2JBR0?T=1595) IF 490 (HTTPS://YOUTU.BE/53Z7KQ2JBR0?T=1595) (HTTPS://YOUTU.BE/53Z7KQ2JBR0?T=1595) IF

THE CITY WERE ABLE TO ACQUIRE THE THE CITY WERE ABLE TO ACQUIRE THE

PROPERTY, WHAT SAFEGUARDS COULD BE PUT PROPERTY, WHAT SAFEGUARDS COULD BE PUT

IN PLACE TO ENSURE THE PROPERTY WOULD

NOT BE DEVELOPED AS A HOMELESS NOT BE DEVELOPED AS A HOMELESS SHELTER? SHELTER? 26:35
(HTTPS://YOUTU.BE/53Z7KQ2JBR0?T=1595) (HTTPS://YOUTU.BE/53Z7KQ2JBR0?T=1595) Listen to Makshanoff’s full answer on placing a conservation easement on the property to not only stop a homeless shelter but also serve as another piece of the puzzle in blocking a toll road route! QUESTION 11: QUESTION 11:
(HTTPS://YOUTU.BE/53Z7KQ2JBR0?T=1672) (HTTPS://YOUTU.BE/53Z7KQ2JBR0?T=1672) HOW IS THE VOTE COUNTED? WHAT IS THE HOW IS THE VOTE COUNTED? WHAT IS THE

PROCEDURE FOR THE SECRET BALLOT VOTE PROCEDURE FOR THE SECRET BALLOT VOTE COUNT? 27:52
(HTTPS://YOUTU.BE/53Z7KQ2JBR0?T=1672) (HTTPS://YOUTU.BE/53Z7KQ2JBR0?T=1672) Makshanoff shared for the record, “The City owns two lots in the business park, and we plan to vote against it.” 28:21 (https://youtu.be/53z7Kq2jBR0?t=1701) QUESTION 12: QUESTION 12:
(HTTPS://YOUTU.BE/53Z7KQ2JBR0?T=1699) (HTTPS://YOUTU.BE/53Z7KQ2JBR0?T=1699)

THE CIVIL CODES STATE THE BALLOT IS THE CIVIL CODES STATE THE BALLOT IS IRREVOCABLE. IF A PROPERTY OWNER IRREVOCABLE. IF A PROPERTY OWNER

ALREADY VOTED BUT THEN SEES THIS NEW

INFORMATION OR REALIZES THE LETTER AND

BALLOT ARE INCORRECT, WHAT MECHANISM

IS IN PLACE FOR OWNERS TO CHANGE THEIR IS IN PLACE FOR OWNERS TO CHANGE THEIR VOTES? 28:19
(HTTPS://YOUTU.BE/53Z7KQ2JBR0?T=1699) (HTTPS://YOUTU.BE/53Z7KQ2JBR0?T=1699)

QUESTIONS AND ANSWERS QUESTIONS AND ANSWERS
(HTTPS://YOUTU.BE/53Z7KQ2JBR0?T=1757) (HTTPS://YOUTU.BE/53Z7KQ2JBR0?T=1757) FROM THE PUBLIC FROM THE PUBLIC 29:17
(HTTPS://YOUTU.BE/53Z7KQ2JBR0?T=1757) (HTTPS://YOUTU.BE/53Z7KQ2JBR0?T=1757) Including: Including:
• Zoning changes? Zoning changes?
491
• Other buyers? Other buyers?
• Eminent Domain from the State? Eminent Domain from the State? • Under 1 Acre loophole? Under 1 Acre loophole?
• Missing ballots? Missing ballots?
• New vote with corrected ballot information? New vote with corrected ballot information? • Moving the SB2 overlay? Moving the SB2 overlay?
• Why didn’t the Association provide more details to the public? Why didn’t the Association provide more details to the public? • And many more important questions! And many more important questions! “The letter that went out talked about that it’s less likely for a shelter to go in “The letter that went out talked about that it’s less likely for a shelter to go in the business park, and that’s 100% inaccurate.” -Glenn Walker of Walker the business park, and that’s 100% inaccurate.” -Glenn Walker of Walker Insurance Solutions Insurance Solutions 31:0631:06 (https://youtu.be/53z7Kq2jBR0?t=1866) -What if the property is developed under 1 acre to avoid a public community vote? 39:37 (https://youtu.be/53z7Kq2jBR0?t=2377)
-Why didn’t the Association provide more information to the community prior to entering escrow with a homeless shelter operator? 40:48 (https://youtu.be/53z7Kq2jBR0?t=2448) “If in fact it is voted down and that property over there, the 10 acres, will that “If in fact it is voted down and that property over there, the 10 acres, will that be up for sale to anybody that would want to buy it and use that for parks and be up for sale to anybody that would want to buy it and use that for parks and recreation and stuff?” -Jay Longley of Rainbow Sandals recreation and stuff?” -Jay Longley of Rainbow Sandals 41:4641:46 (https://youtu.be/53z7Kq2jBR0?t=2506)
-With both the City of San Clemente and Olen Properties wanting to purchase the property, is the Association still asking for property owners to approve the current vote, and if so, why? 49:3149:31 (https://youtu.be/53z7Kq2jBR0?t=2971)
“For those who did not get their ballots, how do they get?” -Krisna Macdonald “For those who did not get their ballots, how do they get?” -Krisna Macdonald of Matsushita International of Matsushita International 55:02 55:02 (https://youtu.be/53z7Kq2jBR0?t=3302) 492
-Dale Lyon, Senior Vice President of Olen has currently submitted an offered to purchase the property and shared they would have entertained an offer originally if they would have known it was for sale. “We’re voting no.” 55:15 (https://youtu.be/53z7Kq2jBR0?t=3315) “It’s right across the street. I mean it’s going to impact. It’s going to bring an “It’s right across the street. I mean it’s going to impact. It’s going to bring an element to the neighborhood.” -Dale Lyon of Olen Properties element to the neighborhood.” -Dale Lyon of Olen Properties 59:5659:56 (https://youtu.be/53z7Kq2jBR0?t=3596)
“Is the ballot going to be valid since it isn’t correct? ... everyone who’s voting “Is the ballot going to be valid since it isn’t correct? ... everyone who’s voting thinks that this Pico lot is in the SB2 zone but it’s not….” thinks that this Pico lot is in the SB2 zone but it’s not….” 1:00:401:00:40 (https://youtu.be/53z7Kq2jBR0?t=3638)
“If there was not an error in law, there was an error in judgment here on the “If there was not an error in law, there was an error in judgment here on the part of the board of directors…” -Jon Parry of Bemus Landscape part of the board of directors…” -Jon Parry of Bemus Landscape 1:04:431:04:43 (https://youtu.be/53z7Kq2jBR0?t=3881)
-Can the SB2 zoning be moved to cover the parcels in escrow? 1:10:38 (https://youtu.be/53z7Kq2jBR0?t=4238)
CLOSING STATEMENT: CLOSING STATEMENT: 1:11:13
(HTTPS://YOUTU.BE/53Z7KQ2JBR0?T=4273) (HTTPS://YOUTU.BE/53Z7KQ2JBR0?T=4273) THE “NOW WHAT?” THE “NOW WHAT?”
Several of these questions were left outstanding by the close of the event, with Mauriello stating he will be talking to the Association’s Board of Directors to find answers for these pending topics.

We urge you to watch the full video (https://www.youtube.com/watch?v=53z7Kq2jBR0) above to gain the ultimate insight on this current Rancho San Clemente homeless shelter escrow situation. Ballots must be returned to the RSCB Association for a vote count by October 30, 2019.

VIEW Q&A FORUM HANDOUT PACKAGE (/S/PACKAGE-FOR-QA-RSCHOMELESS-SHELTER-FORUM-10-7-19.PDF)

SUBSCRIBE SUBSCRIBE
Stay tuned for more updates as this story develops. Subscribe below to get breaking business news updates right to your inbox.
493
COMMENTS (1)
Tagged: san clemente (/news/tag/san+clemente), homeless shelter (/news/tag/homeless+shelter), business park
(/news/tag/business+park)
1 Likes
Sale of Parcels • Clarification
If the owners vote to remove the parcels from the CC&R's, it appears that in addition, a majority vote by the Master Board is needed in order to sell the parcels to the City, County or other public agency (see CC&R's § 4.2 below).

Further, the Item (sale of the 2 parcels) would need to be listed on the Agenda in order to allow public discussion board review, and a vote by the Board.

It may be prudent for counsel to review the Agendas, Minutes, and CC&R's:
"Section 4.2 Power to Convey and Dedicate Property to Government Agencies— The Master Association with the approval of Members representing at least a majority of the voting power of the Master Association, shall have the power to grant convey, dedicate or transfer any Master Association Properties or facilities to any public or governmental agency or authority for such purposes and subject to such terms and conditions as the Master Association shall deem appropriate, subject to the provisions elsewhere contained in this Master Declaration for approval of the same by Declaration with respect to property previously transferred to the Master Association by Declarant."
Respectfully,
Vonne Barnes, RSCCA Board President
Newer Post
Chapman University 2020 Economic Forecast
Summary (PLUS the full report!) (/news/champanOlder Post Jim Wynne Hosting San Clemente City Council
Forum - 2019 Special Election (/news/jim-wynneupdates right to your inbox.

Like us on Facebook @WynneCRE (https://www.facebook.com/WynneCRE) and share this info with your San Clemente business neighbors!
! ! Share
Newest First
Preview POST COMMENT…
Vonne Barnes 2 years ago · 0 Likes
494
Summary (PLUS the full report!) (/news/champanuniversity-2020-economic-forecast-summary-plusthe-full-report) Forum - 2019 Special Election (/news/jim-wynnehosting-san-clemente-city-council-forum-2019)

JIM WYNNE OF KIDDER MATHEWS JIM WYNNE OF KIDDER MATHEWS LIC#01242705 LIC#01242705

ORANGE COUNTY COMMERCIAL REAL ESTATE SPECIALIST ORANGE COUNTY COMMERCIAL REAL ESTATE SPECIALIST 949.557.5060 949.557.5060
[email protected]
KIDDER MATHEWS | 5 PARK PLAZA, SUITE 1700, IRVINE, CA
92614 | KIDDER.COM
(https://www.facebook.com/WynneCRE) (https://twitter.com/WynneCRE) (https://www.instagram.com/wynnecre/) (https://www.youtube.com/channel/UCSUzzbqzIxyMqXiWcK27Vmg) HOME (HTTPS://WWW.WYNNECRE.COM)

PROPERTIES (/PROPERTIES)

NEWS (/NEWS)

ABOUT (/ABOUT)
SEARCH (HTTPS://WWW.WYNNECRE.COM/SEARCH)

CONTACT (/CONTACT)
495
Exhibit 2
496
+ −
Map Satellite

2 








Search
mode !
Neighborhoods
Zip Codes
Current map
Radius
Polygon
+
−
Map Satellite
Map data ©2021 Google,
INEGI
Expand Map"
Marshal Vogt
Lee & Associates
(714) 564-7117
Principal Contact
Your Featured Local Broker #
California > Orange County > San Clemente
31 Office Spaces for Rent in San Clemente, CA
$ Sort By Best Match Next Page
940 Calle Negocio, Ste 165
940 Calle Negocio, Ste 165, San Clemente, CA
Property
Office / 23,263 Sqft
Year Built
1989
Availability
1 Space / 790 Sqft
For Lease
$1.52/Sqft/Month
View Details Contact Property
Office 910
910 S. El Camino Real Road, San Clemente, CA
Property
Office / 6,709 Sqft
Year Built
1985
Availability
2 Spaces / 1,800 Sqft
For Lease
$2/Sqft/Month
View Details Contact Property
Talega Medical Plaza
1300 Avenida Vista Hermosa, San Clemente, CA
Property
Office / 27,522 Sqft
Year Built
2002
Availability
2 Spaces / 6,666 Sqft
For Lease
$34.2 - $35.4/Sqft/Y…
View Details Contact Property
San Clemente Professional Plaza
655 Camino De Los Mares, San Clemente, CA
Property
Office / 32,477 Sqft
Year Built
1973
Availability
1 Space / 1,444 Sqft
For Lease
$2.1/Sqft/Month
View Details Contact Property
% %
% %
% %
By Location& ' Office & Price & ( More Filters Clear All ) Save Search For Lease & Commercial Real Estate Coworking Add a Listing Advertise *Log In We use cookies to make interactions with our websites and services easy and meaningful and to better understand how they are used. You can find out more about which cookies we are using and update your preferences in Cookies Settings. By clicking “Accept All Cookies,” you are agreeing to our use of cookies. Cookie Notice
Cookies Settings
Accept All Cookies
497
Talega Business Park - 1211 Puer…
1211 Puerta Del Sol, San Clemente, CA
Property
Office / 43,737 Sqft
Year Built
2002
Availability
1 Space / 3,923 Sqft
For Lease
$2/Sqft/Month
View Details Contact Property
The Presidio Building
300 S. El Camino Real Road, San Clemente, CA
Property
Office / 11,760 Sqft
Year Built
1982
Availability
4 Spaces / 2,205 Sqft
For Lease
Contact for pricing
View Details Contact Property
Plaza by the Sea
616 Camino De Los Mares, San Clemente, CA
Property
Retail / 51,696 Sqft
Year Built
1974
Availability
1 Space / 1,200 Sqft
For Lease
Contact for pricing
View Details Contact Property
1402 N. El Camino Real
1402 N. El Camino Real, San Clemente, CA
Property
Office / 1,900 Sqft
For Sale
$1,190,000
View Details Contact Property
Pacific Pointe Corporate Centre
901 Calle Amanecer, San Clemente, CA
Property
Office / 120,527 Sqft
Year Built
2001
Availability
1 Space / 2,785 Sqft
For Lease
Contact for pricing
View Details Contact Property
647 Camino De Los Mares, Suite 2…
647 Camino De Los Mares, Suite 223, San Clemente, …
Property
Office / 1,200 Sqft
Availability
1 Space / 1,180 Sqft
For Lease
Contact for pricing
View Details Contact Property
LIB
@CommercialEdge
% %
% %
498
1001 Avenida Pico
1001 Avenida Pico, San Clemente, CA
Property
Retail / 20,000 Sqft
Availability
3 Spaces / 6,614 Sqft
For Lease
$1.95 - $2.95/Sqft/M…
View Details Contact Property
1051 Avenida Pico
1051 Avenida Pico, San Clemente, CA
Property
Retail / 5,507 Sqft
Availability
1 Space / 2,992 Sqft
For Lease
Contact for pricing
View Details Contact Property
Pacific Pointe Corporate Centre
901 Calle Amanecer, San Clemente, CA
Property
Office / 120,527 Sqft
Year Built
2001
Availability
7 Spaces / 20,076 S…
For Lease
$2.4 - $2.45/Sqft/Mo…
View Details Contact Property
910 S El Camino Real
910 S El Camino Real, San Clemente, CA
Property
Other / 6,709 Sqft
Year Built
1985
Availability
1 Space / 2,175 Sqft
For Lease
$26.4/Sqft/Year
View Details Contact Property
Not finding the right space?
Tell us where and what you're looking for and the brokers will come to you Post my Space Need
% %
% %
% %
499
San Clemente Commerce Center
927 Calle Negocio, San Clemente, CA
Property
Office / 71,397 Sqft
Year Built
1989
Availability
Contact for availabili…
For Lease
Contact for pricing
View Details Contact Property
110 Av. La Pata
110 Av. La Pata, San Clemente, CA
Property
Office / 46,476 Sqft
Availability
1 Space / 20,475 Sqft
For Lease
Contact for pricing
View Details Contact Property
665 Camino De Los Mares #200
665 Camino De Los Mares, San Clemente, CA
Property
Office / 1,200 Sqft
For Sale
$648,000
View Details Contact Property
Amanecer Business Park
940-946 Calle Amanecer, San Clemente, CA
Property
Office / 81,260 Sqft
Year Built
1989
Availability
3 Spaces / 4,540 Sqft
For Lease
$1.3 - $1.6/Sqft/Month
View Details Contact Property
107 AVENIDA DE LA ESTRELLA
107 AVENIDA DE LA ESTRELLA, San Clemente, CA
Property
Office / 16,200 Sqft
Year Built
2007
Availability
1 Space / 1,050 Sqft
For Lease
$30/Sqft/Year
View Details Contact Property
951 Calle Amanecer
951 Calle Amanecer, San Clemente, CA
Property
Office / 39,000 Sqft
Year Built
1991
Off Market
Off Market Off Market
% %
% %
% %
500

San Clemente, CA Office Space Listings
There are currently 27 office listings available in San Clemente, CA. These listings include 31 office spaces that encompass a total of 68,134 square feet. Available office spaces in San Clemente, CA range in size from 152 square feet to 20,475 square feet. A total of 8 off-market office properties located in San Clemente, CA are also available for research.

See San Clemente office price per sqft in 2020, along with vacancy rates, sales report, and construction stats.

Commerce Center
940 Calle Negocio, San Clemente, CA
Property
Office / 44,554 Sqft
Year Built
1985
665 Camino De Los Mares
665 Camino De Los Mares, San Clemente, CA
Property
Office / 40,000 Sqft
Talega Business Park - 1311 Calle…
1311 Calle Batido, San Clemente, CA
Property
Office / 85,316 Sqft
Year Built
2002
Oceanview Medical Center
675 Camino De Los Mares, San Clemente, CA
Property
Office / 30,931 Sqft
Year Built
1983
1401 N El Camino Real
1401 N El Camino Real, San Clemente, CA
Property
Office / 16,000 Sqft
629 Camino de los Mares
629 Camino de los Mares, San Clemente, CA
Property
Office / 29,700 Sqft
Year Built
1979
2 »
@commerciolEdge
Off Market Off Market
Off Market Off Market
1 % %
% %
501
San Clemente, CA Office Inventory Breakdown
Office Spaces
Total: 287,103 SF
Data provided by Yardi Matrix, properties over 50k SF, includes office with retail By square footage range:
50k to 100k SqFt 166,576 SqFt 58.02% of total office
100k to 500k SqFt 120,527 SqFt 41.98% of total office
By class:

Class B 287,103 SqFt 100% of total office
Other Popular Searches
Look For Office Space Near Me
Are you still looking for the office space near you that’s perfect for your business? Browse through all available CommercialCafe listings in your area to find the right fit — the space that meets your requirements, right now and for the future. Easily compare sizes, prices, amenities and locations of office spaces for rent near me. Expand your search beyond your neighborhood and ZIP code and search our listings in any city or state to find the best fit for your needs, wherever you are in the U.S. The perfect office space for rent near San Clemente, CA is only one search away.

Irvine Office Space - 475 listings
Newport Beach Office Space - 168 listings
Santa Ana Office Space - 161 listings
Carlsbad Office Space - 144 listings
Riverside Office Space - 140 listings
Anaheim Office Space - 119 listings
Costa Mesa Office Space - 103 listings
Orange Office Space - 67 listings
La Jolla Office Space - 67 listings
Brea Office Space - 46 listings
502
Frequently Asked Questions
How much does office space cost in San Clemente, CA?
The average office rental rate in San Clemente, CA is $25.86 per square foot. Asking prices vary based on the property’s location, overall rating, amenities, proximity to restaurants, cafes and entertainment venues, as well as public transport, airports and highways. Check San Clemente Office Market Trends for more stats.

What is the size of available office spaces in San Clemente, CA? The San Clemente, CA office market can accommodate various businesses, sporting a range of office space availabilities. The average size of office space availabilities is 10,314 square feet. If you’re just starting out as a company or as an entrepreneur, the smallest available office space in San Clemente, CA is 152 square feet, while the maximum rentable space on the market now is 20,475 square feet.

How do I get office space in San Clemente, CA?
Start your search for office space in San Clemente, CA by using our filters that allow you to find the best space for your business needs. Filter listings by location, property size, available space or lease rate. Property pages will offer details about an office building’s rating, year built, availabilities, price per square foot and more. After drawing up a shortlist, make sure you contact the listed broker(s) to schedule a viewing and begin the negotiation process for your lease contract.

How many office listings are available in San Clemente, CA? There are 27 office listings on the San Clemente, CA market. See all available office spaces for rent.

What other property types are available for lease in San Clemente, CA? In addition to traditional office spaces, commercial real estate listings on our platform also include coworking & shared office space options, retail spaces, industrial buildings, warehouses, distribution facilities, and more.

San Clemente, CA Demographics & Income
Median Age 42.1
503
Population by age category
Under 20 24.7%
20 to 64 57.0%
65 and over 18.3%
Population by age range

11.8%
0-9

12.9%
10-19

9.6%
20-29

12.9%
30-39

13.4%
40-49

12.8%
50-59

15.2%
60-69

7.9%
70-79

3.5%
80-89
In 2019, the median age of San Clemente residents was 42.1 years old. Aproximately 57.0% of total population is between the ages of 20-64, with 9.6% between 20-29 years old.

Income per capita $61,323
Median Income per age
$67,043
0-25
$150,037
25-44
$172,969
45-64
$84,656
65+
The median income for San Clemente residents 45-64 years old stands at $172,969, with 25-44 years old earnings $150,037 per year. $101,588
Management, business
and financial occupations
$128,280
Computer, engineering
and science occupations
$47,410
Sales and office
occupations
The mean wage for San Clemente workers in management, business and financial ocupations is $101,588, whereas those in computer engineering and science occupation earn $128,280 per year. Sales and office occupations workers mean income is $47,410.

Pick your country:

About Us
Contact Us
Our Tools
Add a listing
504
© 2021 - Yardi Systems, Inc. All Rights Reserved.
! " # $
Who We Are
Terms Of Service
Privacy Statement
Your CA Privacy Rights
Sitemap
Blog
Real Estate Terms
505
Exhibit 3
506
507
Exhibit 4
508

SUBSCRIBE DONATE
HOME | NEWSROOM | HOUSING | The City of San Clemente backed away from an inhumane homeless ordinance, but it’s the tip of the iceberg in California The City Of San Clemente Backed Away
From An Inhumane Homeless Ordinance,
But It’s The Tip Of The Iceberg In California
January 24, 2020, By Western Center Senior Litigator, Alex Prieto Last month, after pressure from a case filed by Western Center and our partners, Emergency Shelter Coalition v. City of San Clemente, San Clemente passed an emergency repeal of a deeply inhumane ordinance targeting people experiencing homelessness. The ordinance would have forced anyone without a place to sleep to camp at a storage lot next to a waste treatment plant. The City made the repeal permanent this week.

The ordinance was the latest in a series passed by San Clemente targeting the City’s growing homeless population. Sadly, the City’s actions re!ect an approach to homelessness that is common in California, aimed at pushing the problem out of public view rather than addressing it in a meaningful way.

In 2018, San Clemente enacted an ordinance similar to those adopted by many California cities, which criminalized camping by those experiencing homelessness. The City was forced to amend the law in response to the Ninth Circuit Court of Appeals’ decision in Martin v. Boise, which said it is unconstitutional to punish someone for sleeping outdoors on public land when alternative shelter is unavailable.

But the City’s amendment did not mark a change in attitude. After Martin, San Clemente still clung to its same shortsighted approach to homelessness, and remained focused on citing and arresting people for living on the street, sleeping in public, and other unavoidable offenses. The ordinance challenged in our Emergency Shelter Coalition case was a product of that approach.

At the City Council meeting where San Clemente adopted the ordinance, Emergency Shelter Coalition, the plaintiff in the case, offered the City an alternative: a financial donation to fund an indoor homeless shelter, and land for a location. San Clemente opted instead to force its homeless population to camp at the site near the waste treatment plant, which the City previously rejected as the location for an animal shelter due to safety concerns. This choice shows that the City wasn’t interested in providing adequate shelter for people experiencing homelessness.

The City’s decision to repeal the ordinance came only after sustained pressure from our case — a victory against the criminalization of homelessness. But the notion that criminal enforcement is a solution to homelessness continues to attract politicians and administrators peddling quick fixes.

Exhibit A: a proposed 2020 state ballot initiative by former Assemblyman Mike Gatto, which takes the debunked idea that California can arrest its way out of a homeless crisis to disturbing extremes.

The initiative requires law enforcement officers to set aside other priorities to make mandatory 509
arrests for certain offenses, mostly minor nuisance violations. It then requires judges to impose the maximum sentence on anyone found to have a mental health or drug addiction issue. Judges would also be authorized to order that sentences be served in locked mental health and drug treatment facilities.

If enacted, the initiative will result in the mass institutionalization of people deemed mentally unwell at the discretion of police and judges.

Gatto claims the initiative will connect people to financial and housing assistance, but this is only window dressing – the measure provides no funding for housing or homeless services. The only financial assistance it refers to is General Relief, an existing program that already provides far less aid than necessary to obtain housing and meet basic needs. In Los Angeles County, for example, the maximum General Relief payment is $221.00 per month.

Such superficial gestures should not distract from what the initiative really is: a destructive nonsolution that will trample the rights of people with mental health disabilities. It is an example of the “out of sight, out of mind” approach to homelessness at its worst.

Moreover, this approach also perpetuates wider systemic inequities, both historic and current. In a country and state that continues to struggle with racialized policing practices, it makes no sense to impose mandatory arrests and maximum sentences on an already marginalized population that is disproportionately Black.

Criminalizing homelessness does nothing to solve a long-term crisis resulting from entrenched inequities in housing access, economic opportunity, the criminal justice system, and medical and mental health services. But it does allow cities to push the visual evidence of the issue temporarily out of sight. Cities too often assert that some people experiencing homelessness will eventually move to other cities when faced with the constant threat of arrest, which allows them to treat homelessness as someone else’s problem.

Harmful policies like San Clemente’s now-repealed ordinance and Gatto’s proposed ballot measure move the state backwards when we should be investing in real solutions, like increased funding for deeply affordable housing and significant increases in General Relief grants. Western Center will continue to advocate for sustainable state and local policies that actually work, and we will fight those seeking to expand the criminalization of homelessness in court.

PREVIOUS ARTICLE
Medi-Cal Benefits Eliminated A
Decade Ago, Such As Foot Care
And Eyeglasses, Are Back

NEXT ARTICLE
Western Center Statement On
Supreme Court Public Charge
Ruling
510
siteground
© 2019 Western Center on Law & Poverty, Inc. WCLP, WESTERN CENTER ON LAW & POVERTY and design are registered trademarks owned by Western Center on Law & Poverty, Inc. All rights reserved. WCLP ® ...

LOCATIONS
3701 Wilshire Blvd., Suite 208
Los Angeles, CA 90010
213.487.7211
1107 Ninth Street, Suite 700
Sacramento, CA 95814
916.442.0753
449 Fifteenth Street, Suite 301
Oakland, CA 94612
213.487.7211
Fax # 213.487.0242
Contact us via email

QUICK LINKS
About
Our Staff
Advocacy
Resources
Our Client Stories
Newsroom

SUPPORT WESTERN CENTER

DONATE NOW

SITE MAP TERMS OF USE PRIVACY STATEMENT
511
Exhibit 5
512
___
By ERIKA I. RITCHIE | [email protected] | Orange
County Register
PUBLISHED: August 30, 2019 at 8:16 p.m. | UPDATED: August 31, Greg Naylor pauses as he considers his options after being told he would not be allowed to stay at a city designated homeless area on Avineda Vista Hermosa in San Clemente, CA, on Friday, Aug 30, 2019. (Photo by Jeff Gritchen, Orange County Register/SCNG)

LOCAL NEWS
San Clemente clears homeless
camp site and requires proof
of ties to the city for reentry
513
2019 at 12:21 p.m.

About 70 people were removed from a makeshift homeless
campground along Avenida Pico in San Clemente for a clean-up of the site, Friday morning, Aug. 30, but only 23 were allowed to return.

In order to regain entrance to the city yard, city officials said, the homeless living there had to prove a tie to the city — either by showing a valid driver’s license or other identification, a utility bill indicating prior residence in the city or bringing along a family member who could vouch for their connection to San Clemente.

Since the campground opened in May, officials said, it had been filling up with people from out of town.

Notice of the cleaning and an order to clear the site of all belongings by 7 a.m. Friday was posted at the yard Aug. 21 and again Aug. 28, said Assistant City Manager Eric Sund.

The cleaning, he said, was being conducted to clear out trash and debris that had accumulated on the half-acre lot and to create a healthy and safe environment.

Folded up tents, chairs, clothing and surfboards were piled high along the sidewalk as the clean-up progressed through the morning Friday. As city and county workers cleared the site, a handful of homeless people waited outside the gates sitting on their belongings.

Orange County Sheriff’s Department deputies were on hand to monitor the transition and to keep watch over workers from the Orange County Health Care Agency. Across the way, some San Clemente residents watched the scene unfold.

Roger Etzwier was one of the homeless people denied re-entry to the camp when the doors re-opened around 2 p.m.
514
“I’m upset because I got lured out here on false pretenses and the gate slammed shut on me,” the 57-year-old from San Juan Capistrano said. “I signed up just last week. I was a roofer in San Clemente for 30 years but that doesn’t help me now. I don’t have anything to prove it.”
Gregory Naylor, 57, also was locked out. The former Laguna Beach restaurant chef complained about the lack of toilets at the site and water with which to shower, but he was in tears when he was turned away.
“I’m going to set up my tent and I’m sure people will complain,” he said as he pointed across the street toward multi-million dollar homes in the Sea Summit community. “This is a total collapse of our system. How can they say we don’t live here? We were all here last night.”
Those who were not allowed to return to the campground were given vouchers for bus, train and Uber rides to transport them elsewhere.

The city lot was set up as a homeless campsite May 24, after the San Clemente City Council passed an urgency ordinance to move a growing homeless community away from North Beach.

The ordinance, created to address threats to public safety, health, and welfare, prohibited camping on public property but provided the camping option for the homeless at the lot.

Brooke Weitzman, one of several lawyers threatening action in response to the city’s relocation plan, was on site during Friday’s clean-up.

Weitzman filed a lawsuit on behalf of several homeless people against San Clemente, Aliso Viejo, Dana Point, Irvine and San Juan Capistrano in February.

On Aug. 12, U.S. District Judge Percy Anderson dropped four of five south Orange County cities from a lawsuit and ordered lawyers for the homeless people to amend their complaint against San Clemente, which remains a defendant along with the county.
515
Elsewhere around Orange County, Laguna Beach gives shelter priority to homeless people with ties to the city. Those claims are reviewed by Laguna Beach Police Department personnel. In Tustin and Anaheim, officials also ask that those seeking shelter have ties to the community.

The Courtyard shelter in Santa Ana does not require proof of prior connections to a community.

Duane (Gibson) Nichols, a Navy veteran and one of three homeless people named in the lawsuit against San Clemente, said Friday he wasn’t happy with the new situation. Though he was on the list to move back in, the new decor and tents didn’t suit his style.
“I’m not moving into that little dog house,” he said, referring to 40 tents the city brought in Friday. “I have my own tent. I’m moving back to North Beach.”
He also lamented about conditions at the city site, especially with the influx of people from out of state.
“They’re having problems with the toilets now that there are 75 to 80 people here,” he said. “People are coming from all over … Kentucky, Florida, Iowa and New York. There’s more vandalism and crime. There’s more petty theft in the area. They’re hitting the 7-11, the 99 Cents Only Store and Albertsons. People wander around after lights-out and they’re not following the rules.”
Newsroom Guidelines News Tips Contact Us
Report an Error
Be the first to get the most important news.

Sign up for our Breaking News
newsletter now.

Enter email to subscribe
516

CONNOR, FLETCHER & HEDENKAMP LLP

ATTORNEYS AT LAW
2211 MICHELSON DRIVE, SUITE 1100 IRVINE, CALIFORNIA 92612 T: 949.622.2600
E-MAIL: [email protected]
June 21, 2022
June 21, 2022
Mr. David Zisser, Assistant Deputy Director
Local Government Relations & Accountability
Housing Policy Development Division
Cal. Dept. of Housing and Community Development
[email protected]
Mr. Paul McDougall, Housing Policy Manager
California Department of Housing and Community Development [email protected]

VIA EMAIL
Re: City of San Clemente 2021-2029 Draft Housing Element, Dated April 2022 Dear David and Paul:

Last week, I received a phone call from Robin Huntley who was following up on a recent letter that our firm had sent to HCD on behalf of our client, the Emergency Shelter Coalition (“ESC”). I was able to provide Robin with a brief overview of the various obstacles that ESC is facing in being able to develop emergency shelter facilities, as well as affordable and supportive housing, for homeless persons and families and individuals of low income, on the 10 acres of undeveloped land (the “Ten Acres”) that, by the grace of God, ESC now owns in the City of San Clemente (the “City”). Robin suggested that I write a letter to both of you to better identify the governmental and non-governmental constraints that are preventing ESC from developing such uses on the Ten Acres.

Let me start first with what would, on its face, appear to be a non-governmental constraint facing ESC, but which, in reality, has turned into a quasi-governmental constraint as a result of the unholy alliance that the City has forged with some of the long-standing opponents of ESC’s plans to develop emergency shelter facilities in the City. In order to purchase the Ten Acres from the Rancho San Clemente Business Park Association (the “Association”) ESC signed a purchase and sale agreement in July 2019 (the “Purchase Contract”) in which it agreed that, as long as ESC was not divested of fee title to the Ten Acres due to any act, error, or omission on the part of the Association, ESC would be prohibited from developing or operating, or assisting any third party in developing or operating, a homeless shelter within the boundaries of the RSC Business Park, except, of course, on the Ten Acres, themselves.

Soon after ESC closed escrow on the Ten Acres in January 2020, a group of business owners in the RSC Business Park who were members of the Association (collectively, the “Business Owners”) filed a lawsuit (the “Deed Cancellation Action”) to try to invalidate the sale, Emergency Shelter Coalition
517
June 21, 2022

claiming that the Association’s Board did not have the power or authority to sell the land to ESC.

However, once the City filed and served its eminent domain lawsuit in August 2020, seeking to take the Ten Acres away from ESC, the attorney for the Business Owners informed ESC’s counsel that, because the City had commenced the eminent domain lawsuit, the Business Owners were willing to dismiss their lawsuit against ESC with prejudice. In fact, that is exactly what occurred in November 2020.

However, as far back as April 2020, counsel for the Business Owners had informed the Court in the Deed Cancellation Action that (1) the City was going to be holding a vote on whether or not to acquire the Ten Acres by eminent domain and (2) if the vote was in the affirmative, then the Business Owners anticipated that the City would “intervene” in the Deed Cancellation Action to assert its eminent domain claim against ESC.

Based on this communication with the Court, it is obvious that the Business Owners and the City were coordinating their efforts behind the scenes and had figured out that, if the Deed Cancellation Action were successful, that would have the indirect effect of invalidating the Purchase Contract and restoring ESC’s right to develop a homeless shelter in the RSC Business Park. On the other hand, if the City succeeded in taking the Ten Acres away from ESC via eminent domain, then the City and the Business Owners apparently assumed that the Business Owners and the Association would still be in a position to enforce the contract provision that prevented ESC from developing a shelter in the Business Park. In this way, the City and the Business Owners hoped to hit ESC with a 1-2 punch and leave ESC with nowhere to build a shelter in San Clemente.

Indeed, just prior to the City Council’s April 21, 2020 vote to adopt a Resolution of Necessity to condemn the Ten Acres, a local newspaper reporter, after somehow catching wind of how the City and the Business Owners were working together to achieve the outcome described above, contacted me and specifically asked me whether, if the City were to succeed in taking the Ten Acres via eminent domain, ESC would still be bound by its contract with the Association and thus could never build or operate a shelter in the Business Park. That inquiry was hardly something that the reporter had thought of on his own, and it certainly confirmed in my mind that the Business Owners and the City were teaming up to strip the Ten Acres from ESC and then claim that ESC was still bound by the Purchase Contract to never develop a shelter anywhere in the RSC Business Park—which, of course, is currently the only property covered by the City’s Emergency Shelter Overlay Zone (the “ES Overlay Zone”) in which shelters was allowed as a matter of right.

Indisputably, the City’s eminent domain lawsuit to take the Ten Acres away from ESC and hold it as undeveloped open space is a major governmental constraint aimed directly at preventing ESC from developing any emergency shelter or other affordable housing uses on the Ten Acres. This constraint, however, becomes all the more restrictive and debilitating when it is seen as part of a scheme to block ESC from being able to develop shelter facilities on the Ten Acres or anywhere in the main Business Park. Clearly, the City could easily remove this constraint by taking the necessary steps to (a) drop its condemnation suit against ESC, (b) add the Ten Acres to the City’s affordable housing inventory, and (c) expand the City’s ES Overlay Zone to include the Ten Acres.

Likewise, there is another major governmental constraint that the City can remove—i.e., Ordinance No. 1475, the land use ordinance that designates the Ten Acres as permanent open space. I have attached a copy of that Ordinance, which was adopted by the City in 2008, for your reference. Notably, the Ordinance expressly provides for five different exceptions that would allow the City Council to amend the Ordinance, without City voter approval, and permit non-open518 June 21, 2022

space, uses including shelter facilities and affordable housing on the land covered by the Ordinance.

ESC believes that the City Council could invoke either one or both of Exception Nos. 2 and 5 in the Ordinance to designate all or some of the Ten Acres for emergency shelter and affordable housing uses. Under Exception No. 2, the City Council would be allowed to permit such uses on the Ten Acres if the Council made a finding that “a specific provision of…state law requires the City to accommodate the proposed housing.” Granted, Exception No. 2 also requires other findings to be made, but ESC believes that the facts exist that would support such findings.

In addition, by invoking Exception No. 5, the City Council could allow ESC to utilize at least one acre of its land for emergency shelter and/or affordable housing uses by simply finding that such uses would be “a superior development alternative that benefits the public health, safety, or welfare.”
In short, the City has the power and ability to remove the crippling governmental constraints that are preventing ESC from using the Ten Acres to develop an emergency shelter complex and affordable housing units to serve persons experiencing homelessness and persons or families of low income. As noted above, the City can and should dismiss its eminent domain lawsuit which was not only commenced to take the Ten Acres away from ESC, but was also designed to ensure that the Business Owners and the Association could enforce the provision in the Purchase Contract prohibiting ESC from developing or operating a homeless shelter elsewhere in the Business Park. Likewise, the City can and should invoke one or both of the Exceptions discussed above and thereby remove the open space land use impediment posed by Ordinance No. 1475.

The City’s removal of the constraints discussed above and its expansion of the ES Overlay Zone to cover the Ten Acres would immediately start the ball rolling in actually developing and operating an emergency shelter complex and affordable housing uses on the Ten Acres. A large faith-based organization has already pledged to work with ESC to fund, develop, and operate such uses on the Ten Acres. I hesitate to name that organization for fear of reprisals by the City and other anti-homeless groups and individuals in San Clemente, including members of the City Council.

In connection with revising its Housing Element to bring it into compliance with state law requirements, the City should remove the above-referenced constraints and, if it declines to do so, it should be held accountable for trying to use such constraints to prevent emergency shelter facilities and affordable housing uses from being developed in San Clemente. Such conduct by the City would constitute a failure to fulfill its legal responsibility to zone for and permit its share of the state’s housing needs and would warrant strong accountability actions for such noncompliance. ESC hopes that HCD will, in fact, hold the City accountable in this particular instance.

Very truly yours,
Edmond M. Connor
CC: Robin Huntley (via e-mail)
519
ORDINANCE NJ. 1475

AN ORDINANCE AMENDING THE LAND USE ELEMENT OF THE

CITY OF SAN CLEMENTE GENERAL PLAN TO REQUIRE CITY

VOTER APPROVAL OF GENERAL PLAN AMENDMENTS,

SPECIFIC PLAN AMENDMENTS, SPECIFIC PLAN ADOPTIONS
AND ZONING MvIENDMENTS THAT CHANGE THE PERMITTED

USES OF OPEN SPACE LANDS TO NON-OPEN SPACE USES
WHEREAS, the Land Use Element of the City of San Clemente General Plan identifies various classifications of permitted uses for the real property located within the City and the City's sphere of influence and includes a Land Use Plan l'vfap which designates the permitted land uses for all such areas; and .

WHEREAS, among the General Plan land use classifications are five (5) classifications for open space uses, designated OS 1, OS 2, OS 3. OSC, and OSR, respectively (collectively, the <;General Plan Open Space Classifications"); and
WHEREAS, pursuant to applicable California law, · including without limitation Government Code Sections 65860 and 65454, the City's zoning and any adopted specific plans are required to be consistent with the City's General Plan; and WHEREAS, the City of San Clemente Zoning Ordinance set fo1th in Chapter 17 of the Municipal Code of the City of San Clemente and the adopted Pier Bowl, Forster Ranch, Marblehead Coastal, Marblehead Inland, Rancho San Clemente, Talega, and West Pico Corridor Specific Plans (collectively, the "Specific Plans") implement the City's General Plan, establish zones and planning areas within which various land use;s are permitted, and incorporate an official zoning map and specific plan maps designating the permitted land uses for all such areas; and
WHEREAS, among the zones set forth in the City's Zoning Ordinance are eight (8) zones for open space uses, designated OS 1 (Public Parks and Publicly Owned Open Space), OS S l (Publicly Owned Open Space-Shoreline), OS 2 (Privately Owned Open Space), OS S2 (Privately Owned Open Space-Shoreline), OS 3 (Privately Owned Open Space (Restricted by Easement), OSC (Golf Courses and Commercial Recreation), S-1 (Shoreline District, applicable within the North Beach Study Area), and O-A (Open Area and Recreation District, applicable within the North Beach Study Area), respectively (collectively, the "Open Space Zones"); and WHEREAS, each property in the City that is designated as being located within one of the General Plan Open Space Classifications has been placed \Vithin the corresponding Open Space Zone or has been designated within the applicable Specific Plan for similar open space uses (the "Specific Plan Open Space Areas"); and
WHEREAS, the properties within the City and the City's sphere of influence located within one or more of the designated General Plan Open Space Classifications, Open Space Zones, or Specific Plan Open Space Areas as of the date this Ordinance becomes effective are collectively referred to herein as the "Open Space Areas"; and . ----------·· ., ... ·- --------------520
Ordinance No. 1475 Page 2
WHEREAS, on September 18, 2007, the City Council adopted its Resolution No. 07-68 amending the General Plan to require City voter approval prior to the redesignation of Open Space to non-Open Space uses; and
WHEREAS, in adopting Resolution No. 07-68, the City Council found that long-tenn preservation of the City's Open Space Areas promotes the health, safety, welfare, and quality of' life for the residents of San Clemente for the following reasons:
l. It is important to the unique character of San Clemente and the quality of life of its residents to protect the significant environmental, aesthetic. and recreational benefits that the designated Open Space Areas provide to the community; and

2. The existing City General Plan Land Use Element goals, objectives, policies, and implementation programs relating to the City's Open Space Areas set forth n rational plan for development, which balances residential and commercial land uses with the provision of park, recreation, and open space land; and

3. Proposals to convert Open Space Areas to Non-Open Space Uses can have adverse environmental impacts, including without limitation aesthetic, traffic, air quality, and noise impacts and loss of natural and native habitat; and WHEREAS, the City Council further found in adopting Resolution No. 07-68 tha t. the long-term preservation of the Open Space Areas is a matter of concern to the community and the City Council desired to assure the residents of San Clemente that Open Space Areas will not be converted to Non-Open Space Uses without the approval of the City's voters, subject to certain exceptions set fo11h herein; and
WHEREAS, on January 22, 2008, the City Council voted to submit to the City's voters at the general municipal election to be held on November 4, 2008, the General Plan Amendment adopted in Resolution No. 07-68 in order to further assure the residents of San Clemente that a future City Council would not ~e able to remove from the City's General Plan the voter approval requirement set forth in Resolution No. 07-68;

NOW, THEREFORE, THE PEOPLE OF THE CITY OF SAN CLEMENTE ORDAIN AS FOLLOWS:

SECTION 1. A new Policy number 1.9.18 is hereby added to Section IV.A.9 of the Land Use Element of the City's General Plan to read in its entirety as follows:

Voter Approval Required

1.9.18 Require voter npproval of all Genera l Plan Amendments. Specific Plan Amendments. Specific Plan adoptions. and Zoning Amendments that change the permitted uses of open space lands to non-open space uses. as more specifically described in Section V.Y. (11.26)
2 521
Ordinance No. 1475 Page 3
SECTION 2. A new Section V.Y., entitled "General Plan Amendments, Specific Plan Amendments, Specific Plan adoptions, and Zoning Ordinance Amendments to Convert Open Space Areas to Non-Open Space Uses," is hereby added to the Land Use Element of the City's General Plan to read in its entirety as follows:

I 1.26 Except as expressly provided hereinbelow no amendment to the City's General Plan, any adopted Specific Plan, or the City's Zoning Ordinance, that reclassifies all or any portion of any publicly owned or privately owned Open Space Area to Non-Open Space Uses and no pew Specific Plan or zone change that reclassifies all or any portion of any publicly ovmed or privately owned Open Space Area to Non-Open Space Uses shall be effective until such General Plan amendment, Specific Plan amendment, Zoning Ordinance amendment, Specific Plan adoption, or zone change, as applicable, has been submitted to and approved by the City's voters at a genernl or special municipal election. As used herein, the term "Open Space Areas" shall include all areas located within the City and the City's sphere of influence that have any of the following designations or classifications as of the effective date of City Council Resolution No. 07-68, as those designations or classifications are defined in the City's General Plan, the City's Zoning Ordinance, and/or the applicable Specific Plan as of said date: (a) the OS I, OS 2, OS 3, OSC, and OSR classifications set forth in Table 1-3 of the Land Use Element of the General Plan; (b) the OS 1, OS S 1, OS 2, OS S2, OS 3, and OSC zoning categories listed in Section 17.08.010.E and Chapter 17.44 of the Municipal Code; (c) the S-1 and O-A zoning categories set forth in Sections 4.20 and 4.22 of the 1986. Zoning Ordinance governing the North Beach Study Area; and (d) the applicable provisions of the Specific Plans describing the areas to be set aside and reserved for open space in those plans. As used herein, the term "Non-Open Space Uses" shall mean any land uses that are not permitted or nonconditionally permitted uses within any of the Open Space Areas in accordance with Section 17.44.020 of the Municipal Code, the applicable sections governing designated open space areas within the Specific Plans and Sections of the 1986 Zoning Ordinance governing the North Beach Study Area as said Sections exist as of the effective date of City Council Resolution No. 07-68 and "Permitted Open Space Uses" shall mean any land uses that are permitted or conditionally permitted uses within any of the Open Space Areas in accordance with said Sections. A General Plan amendment, Specific Plan amendment, Specific Plan adoption, or zone change reclassifying property from one open space classification to another open space classification shall not be subject to this Section V. Y and shall not require City voter approval as long as the reclassification does not authorize or permit Non-Open Space Uses in the applicable Open Space Area. In addition, an amendment or modification of a General Plan, Specific Plan, or Zoning Ordinance provision describing the permitted or prohibited uses within any of the Open Space Areas shall not be subject to this Section V.Y and shall not require City voter approval as long as the amendment or modification does not authorize or permit Non-Open Space Uses in any Open Space Area.
3 522
Ordinance No. 1475 Page 4
Notw·ithstanding the foregoing, a General Plan amendment, Specific Plan amendment, Zoning Ordinance amendment, Specific Plan adoption, or zone change that authorizes or pennits Non-Open Space Uses in an Open Space Area shall not be subject to this Section V.Y and shall be permitted without City voter approval in the following circumstances only:

1. Upon the application of an affected landowner, if the City Council finds, based on substantial evidence, that the City's failure or refusal to reclassify the Open Space Area in question to a Non-Open Space Use would constitute an unconstitutional taking of the landowner's property; provided, however, that any such reclassification shall be made only to the extent necessary to avoid such an unconstitutional taking; or

2. Upon the application of an affected landowner to convert the Open Space Area to a residential use if the City Council determines that doing so is necessary to comply with federal or state law regarding the provision of housing.

The City Council may do so only if it first makes each of the following findings based on substantial evidence in the record: (a) a specific provision of federal or state law requires the City to accommodate the proposed housing; (b) the amount of land to be reclassified is no greater than necessary to accommodate the required housing; (c) no alternative site within the City that is not an Open Space Area could be used to satisfy the applicable federal or state housing law; and (d) the proposed housing will be located adjacent to already developed lands and roads, unless locating the development in such areas would result in greater environmental impacts, would conflict with federal .or state laws, or would not be feasible; or

3. To the extent not currently authorized in the applicable General Plan, Specific Plan, or Zoning Ordinance provisions applicable to a particular Open Space Area as of the effective date of Resolution No. 07-68, an amendment or modification to the class of authorized and permitted uses that authorizes or permits the construction, maintenance, and use of public roadways, public utilities, interpretive centers, amphitheaters, museums, public art, public facilities (including but not limited to structures for police, fire, and marine safety), active or passive recreational facilities, and facilities ancillary to the permitted Open Space Uses, including but not limited to parking facilities, lighting, signage, and public restrooms; or

4. To the extent the City Council determines, based on substantial evidence, that such reclassification is reasonably related to and required for either (a) a project for the stabilization of public or private buildings or property on adjacent land situated outside the Open Space Area that is being so reclassified; or (b) a project for the repair or restoration of damage to public or private buildings or property on adjacent land situated outside the Open Space that is being so reclassified; or

5. Upon the application of an affected landowner, the reclassification of an area of no more than one ( 1) acre in si ze, to the extent the City Council 4 523
Ordinance No. 14/~
determines, based on substantial evidence, either that (a) the Open Space Area in question must be reclassified to authorize or permit a Non-Open Space Use in order to make it feasible for the landowner to develop or use the balance of his property or (b) reclassifying the Open Space Area in question to authorize or permit a Non-Open Space Use allows for a superior development alternative that benefits the public health, safety, or welfare; and provided that the one (1) acre maximum conversion of Permitted Open Space Uses to Non~Open Space Uses authorized under this clause 5 shall be calculated on a cumulative basis for each application; and provided that this exception shall not be applied if the primary reason for the application is to promote the economic feasibility of the proj ect; or

6. As to a Specific Plan Amendment or Zoning Amendment only, to the extent that such Specific Plan or Zoning Amendment is required in order to be consistent with the City General Plan in effect as of the effective date of City Council Resolution No. 07-68.

SECTION 3. The provisions of this Ordinance are severable to the maximum extent permitted by law. The people hereby declare their intent lhat in the event any P-rovision of this Ordinance is hereafter declared by a court of competent jurisdiction to be void, illegal, or unenforceable, the people would have adopted t_he remaining provisions set forth in this Ordinance, which therefore shall remain in effect and shall be enforceable, SECTION 4. The City Clerk shall certify to the passage of this ordinance and enter it into the book of original ordinances, as and to the extent required under applicable law.

I certify that Ordinance No . 14 75 was ac.opted by the electorate of t.1.e City of San Clerrente at a General Municipal Election held on 'November 4, 2008.

Tlu.s Ordinance _was adopted as a result of the passage of Measure v. Please refer to Resolution No, 08-92 for the recitation of the election results. s
/4,)4YU- -7~
(
, Joanne ~1. Baade
, City Clerk
524
STATE OF CALIFORNIA - BUSINESS, CONSUMER SERVICES AND HOUSING AGENCY GAVIN NEWSOM, Governor

DEPARTMENT OF HOUSING AND COMMUNITY DEVELOPMENT

DIVISION OF HOUSING POLICY DEVELOPMENT
2020 W. El Camino Avenue, Suite 500
Sacramento, CA 95833
(916) 263-2911 / FAX (916) 263-7453
www.hcd.ca.gov
August 22, 2022
Cecilia Gallardo-Daly, Director
Department of Community Development
City of San Clemente
910 Calle Negocio #100
San Clemente, CA 92673
Dear Cecilia Gallardo-Daly:

RE: City of San Clemente’s 6th Cycle (2021-2029) Revised Draft Element Thank you for submitting the City of San Clemente’s (City) revised draft housing element received for review on June 23, 2022. Pursuant to Government Code section 65585, subdivision (b), the California Department of Housing and Community Development (HCD) is reporting the results of its review. Our review was facilitated by a conversation on August 18, 2022 with you and Jennifer Savage, Assistant City Manager. In addition, HCD considered comments from Public Law Center and Connor, Fletcher & Hedenkamp LLP pursuant to Government Code section 65585, subdivision (c).

The revised draft element addresses many statutory requirements; however, revisions will be necessary to comply with State Housing Element Law (Article 10.6 of the Gov.

Code), as follows:

1. Affirmatively further[ing] fair housing in accordance with Chapter 15 (commencing with Section 8899.50) of Division 1 of Title 2…shall include an assessment of fair housing in the jurisdiction. (Gov. Code, § 65583, subd. (c)(10)(A).)
Promote and affirmatively further fair housing opportunities and promote housing throughout the community or communities for all persons regardless of race, religion, sex, marital status, ancestry, national origin, color, familial status, or disability, and other characteristics... (Gov. Code, § 65583, subd. (c)(5).) Integration and Segregation: While the element was revised to include isolation index data for racial/ethnic groups, it does not provide analysis for the identified patterns of segregation. Specifically, the element identifies a 49.3 percent concentration of lower-income households in racial/ethnic block groups with 41-60 percent minority concentrations. However, the element must evaluate this pattern such as discussing coincidence across various components (e.g., segregation 525
Cecilia Gallardo-Daly, Director

and integration and disproportionate housing needs) of the assessment of fair housing and utilizing outreach, local data and knowledge and other relevant factors to better formulate policies and programs.

Racially Concentrated Areas of Affluence (RCAA): While the element reports data on concentrations of race and income and compares some statistics to the County, it must also evaluate this data to better formulate policies and programs.

As noted above and in the prior review, the element should discuss coincidence across various components (e.g., segregation and integration and disproportionate housing needs) of the assessment of fair housing and utilizing outreach, local data and knowledge and other relevant factors. This analysis should specifically address the disparities within the City and the disparities when the City is compared to the broader region. For example, southern Orange County has a significantly higher number of concentrated areas of affluence when compared to the County as a whole. The element should examine this relationship to better prioritize contributing factors to fair housing issues and formulate appropriate actions such as increasing new opportunities in higher opportunity areas (above and beyond the regional housing need allocation (RHNA)). HCD recommends the City utilize the new RCAA data available at https://www.hcd.ca.gov/affirmatively-furthering-fair-housing.

Site Inventory and Affirmatively Furthering Fair Housing (AFFH): While the element expands discussion of the sites inventory against fair housing components, it must still quantify impact at the locational level (e.g., neighborhood, census tract, etc.) and evaluate any isolation of the RHNA.

Additionally, the element must identify actions and programs to address the concentration of lower-income units in majority-minority populations, as identified in the Integration/Segregation analysis.

Contributing Factors to Fair Housing Issues: Based on the outcomes of a complete analysis, the element should re-assess and prioritize contributing factors to fair housing issues.

Goals, Actions, Metrics, and Milestones: Based on the outcomes of a complete analysis, the element must be revised to add or modify goals and actions accordingly. Goals and actions must specifically respond to the analysis and to the identified and prioritized contributing factors to fair housing issues and must be significant and meaningful enough to overcome identified patterns and trends.

For example, the element should have significant actions to promote new housing choices and affordability in higher opportunity areas and place-based strategies toward community revitalization. Actions must have appropriate specific commitment, milestones, geographic targeting and metrics. 526
Cecilia Gallardo-Daly, Director

2. An inventory of land suitable and available for residential development, including vacant sites and sites having realistic and demonstrated potential for redevelopment during the planning period to meet the locality’s housing need for a designated income level, and an analysis of the relationship of zoning and public facilities and services to these sites. (Gov. Code, § 65583, subd. (a)(3).) Identify actions that will be taken to make sites available during the planning period with appropriate zoning and development standards and with services and facilities to accommodate that portion of the city’s or county’s share of the regional housing need for each income level that could not be accommodated on sites identified in the inventory completed pursuant to paragraph (3) of subdivision (a) without rezoning, and to comply with the requirements of Government Code section 65584.09. Sites shall be identified as needed to facilitate and encourage the development of a variety of types of housing for all income levels, including multifamily rental housing, factory-built housing, mobilehomes, housing for agricultural employees, supportive housing, singleroom occupancy units, emergency shelters, and transitional housing. (Gov.

Code, § 65583, subd. (c)(1).)
Suitability of Nonvacant Sites: While the element summarizes past experiences converting existing uses to higher density residential development, it must still relate those trends to the sites in the inventory. Specifically, the element identifies low existing floor area ratio, building structures older than 30 years old, and existing uses operating marginally or sites with surface parking as factors considered to identify sites. The element should connect these factors with the redevelopment examples (pp. HE-88, table 4-5) or if the trends do not support the utilized factors, the element should revise its methodology or identify other sites.

In addition, the City does not appear to rely on nonvacant sites to accommodate over 50 percent of the RHNA for lower-income households. For your information, based on the outcomes of a complete analysis of sites, future versions may trigger this requirement to make findings based on substantial evidence that the existing uses are not an impediment and will likely discontinue in the planning period.

Electronic Sites Inventory: For your information, pursuant to Government Code section 65583.3, subdivision (b), the City must utilize standards, forms, and definitions adopted by HCD when preparing the sites inventory. Please see HCD’s housing element webpage at https://www.hcd.ca.gov/communitydevelopment/housing-element/index.shtml for a copy of the form and instructions. The City can reach out to HCD at [email protected] for technical assistance. Please note, upon adoption of the housing element, the City must submit an electronic version of the sites inventory with its adopted housing element to [email protected].
527
Cecilia Gallardo-Daly, Director

Programs: As noted above, the element does not include a complete site analysis; therefore, the adequacy of sites and zoning were not established.

Based on the results of a complete sites inventory and analysis, the City may need to add or revise programs to address a shortfall of sites or zoning available to encourage a variety of housing types. In addition, the element should be revised as follows:
• Program 5 (Affordable Housing Overlay): This Program should be revised to add a specific commitment beyond “evaluating” development standards for height limits and other standards.
• Program 15 (Monitoring of Emergency Shelter Overlay): This Program must go beyond evaluating areas and development standards. The Program should specifically commit to identify additional acreage, including minimum acreages that are suitable for development with access to transportation and services earlier in the planning period (e.g., 2025).

Further, the Program should specify when development standards will be updated and should specifically commit to updating parking and the overall unit cap on shelters that is benchmarked to the Point in Time survey.
• Large Sites: The element identifies a large site (p. 89) and while it describes the developable area is smaller, programs should be added or modified to facilitate development affordable to lower income households.

For example, the element could commit to coordinate with property owners and developers and establish incentives to facilitate parceling or site planning at appropriate sizes (e.g., 0.5 to 10 acres) as well as a numerical target for units affordable to lower-income households.

3. An analysis of potential and actual governmental constraints upon the maintenance, improvement, or development of housing for all income levels, including… …land use controls... (Gov. Code, § 65583, subd. (a)(5).) Address and, where appropriate and legally possible, remove governmental and nongovernmental constraints to the maintenance, improvement, and development of housing, including housing for all income levels and housing for persons with disabilities... (Gov. Code, § 65583, subd. (c)(3).) Land Use Controls: While the element now mentions some recent projects under the City’s zoning and development standards, it generally does not evaluate the impacts of development standards, particularly two story height limits. For example, the element mentions one project that was built at maximum densities but does not discuss the number of stories, whether adjustments were made, including exceptions or how those standards impact feasibility. The element also mentions some affordable projects but again does not provide specifics like the number of stories, number of units, built densities, whether exceptions were 528
Cecilia Gallardo-Daly, Director

utilized and general feedback on whether development was made difficult by the standards. The City could engage the development community to assist with this analysis and programs (Program 5) should be added or modified based on the outcomes of this analysis.

Housing for Persons with Disabilities: Program 14 (Zoning Amendments) should specifically commit to amend zoning to allow group homes for seven or more persons with all residential zones and revise procedures to permit these uses with objectivity to facilitate approval certainty.

The element will meet the statutory requirements of State Housing Element Law once it has been revised and adopted to comply with the above requirements.

For your information, pursuant to Senate Bill 197 (Chapter 70, Statutes of 2022), as the City did not adopt a compliant housing element within 120 days of the statutory deadline (October 15, 2021), as of this writing, any rezoning must be completed within one year of the statutory deadline (October 15, 2022). This includes Programs 1 (Provide Adequate Sites) and 2 (By-right Approvals). However, if the City’s adopted element is found in compliance by October 15, 2022, the City may use a rezone deadline of later than October 15, 2022. HCD encourages the City to revise the element, adopt and expeditiously submit the housing element. If the element is not found in compliance by October 15, 2022, HCD cannot find the element in compliance until the rezoning is complete.

Several federal, state, and regional funding programs consider housing element compliance as an eligibility or ranking criteria. For example, the CalTrans Senate Bill (SB) 1 Sustainable Communities grant; the Strategic Growth Council and HCD’s Affordable Housing and Sustainable Communities programs; and HCD’s Permanent Local Housing Allocation consider housing element compliance and/or annual reporting requirements pursuant to Government Code section 65400. With a compliant housing element, the City will meet housing element requirements for these and other funding sources.

We are committed to assisting the City in addressing all statutory requirements of State Housing Element Law. If you have any questions or need additional technical assistance, please contact Mashal Ayobi, of our staff, at [email protected].

Sincerely,
Paul McDougall
Senior Program Manager
529
530
531
532
533
534
535
536
537
538
539
540
541
542
543
544
545
546
547
548
549
550
551
552
553
554
555
556
557
558
559
560
561
562
563
564
565
566
567
568
569
570
571
572
573
574
575
576
577
578
579
580
581
582
583
584
585
586
587
588
589
590
591
592
593
594
595
596
597
598
599
600
601
602
603
604
605
606
607
608
609
610
611
612
613
614
615
616
617
618
619
620
621
622
623
624
625
626
627
628
629
630
631
632
633
634
635
636
637
638
639
640
641
642
643
644
645
646
647
648
649
650
651
652
653
654
655
656
657
658
659
660
661
662
663
664
665
666
667
668
669
670
671
672
673
674
675
676
677
678
679
680
681
682
683
684
685
686
687
688
689
690
691
692
693
694
695
696
697
698
699
700
701
702
703
704
705
706
707
708
709
710
711
712
713
714
715
716
717
718
719
720
721
722
723
724
725
726
727
728
729
730
731
732
733
734
735
736
737
738
739
740
741
742
743
744
745
746
747
748
749
750
751
752
753
754
755
756
757
758
759
760
761
762
763
764
765
766
767
768
769
770
771
772
773
774
775
776
777
778
779
780
781
782
783
784
785
786
787
788
789
790
791
792
793
794
795
796
797
798
799
800
801
802
ATTACHMENT 6
RESOLUTION NO. ____

A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF SAN

CLEMENTE, CALIFORNIA, APPROVING GENERAL PLAN
AMENDMENT PLN20-036 TO ADOPT THE REVISED HOUSING

ELEMENT UPDATE
WHEREAS, on February 4, 2014, the City approved its Centennial General Plan, which includes Housing and Safety Elements; certified a Program Environmental Impact Report (State Clearinghouse No. 2013041021); and adopted a Mitigation Monitoring Program pursuant to the California Environmental Quality Act; and WHEREAS, the preparation, adoption, and periodic update of the City of San Clemente’s (“City”) Housing Element is mandated by California State Law (Govt. Code §§ 65580-65589); and
WHEREAS, the Housing Element is a policy document that, among other things, identifies programs intended to facilitate meeting the housing needs of all of the City’s residents, including those special and very low-income populations most in need, and explains how the City intends to accommodate the City’s share of projected regional housing need, as determined by the Southern California Association of Government’s Regional Housing Needs Assessment (“RHNA”); and
WHEREAS, between October 2020 and July 2021, the City has convened multiple virtual community workshops, conducted multiple surveys, and held public hearings before the Planning Commission and the City Council to solicit and receive public input on the proposed 2021-2029 Housing Element Update (the “Housing Element Update”); and
WHEREAS, on or about June 6, 2021, the City submitted its draft Housing Element Update to the California Department of Housing and Community Development (“HCD”) for review in accordance with Government Code Section 65585(b)(1); and WHEREAS, on August 6, 2021, HCD issued a letter to the City with comments on the Housing Element Update, including an appendix of concrete required revisions and additions for the City to implement in order for it to comply with state law; and WHEREAS, the City is committed to satisfactorily addressing all of HCD’s comments and re-submitting the Housing Element Update to HCD with an eye toward final approval and City adoption of the Housing Element Update by no later than October 15, 2021; and
WHEREAS, the Housing Element Update was initiated as General Plan Amendment PLN20-036 (“PLN20-036”), and Municipal Code Section 17.16.020(H)(1) requires the Planning Commission to review a general plan amendment for recommendation to the City Council; and
803
ATTACHMENT 6
WHEREAS, pursuant to the California Environmental Quality Act (Pub. Res.

Code § 21000 et seq.) (“CEQA”), the City is Lead Agency for the Housing Element Update; and
WHEREAS, as Lead Agency, and in accordance with State CEQA Guidelines (Cal. Code Regs., tit. 14, § 15000 et seq.) section 15164, the City has prepared a Program Environmental Impact Report (State Clearinghouse No. 2021020256) (the “PEIR”) for the City’s 2013-2021 Housing Element and Safety Element Updates (“Project”); and
WHEREAS, in accordance with State CEQA Guidelines section 15082, on February 12, 2021, the City sent to the Office of Planning and Research a Notice of Preparation (“NOP”) stating that an Environmental Impact Report (State Clearinghouse Number #2021020256) would be prepared; and
WHEREAS, two comment letters were received in response to the NOP; and WHEREAS, a public scoping meeting was held on February 21, 2021; and WHEREAS, a Draft Program Environmental Impact Report (“Draft PEIR”) was prepared, incorporating comments received in response to the NOP; and WHEREAS, the Draft PEIR determined that mitigation measures were required to mitigate impacts to a less than significant level for biological resources, cultural and tribal resources, geology and soils, and hazards and hazardous materials; and WHEREAS, the Draft PEIR further concluded that despite the incorporation of all feasible mitigation measures, the proposed Project would nonetheless result in significant and unavoidable impacts relating to air quality, greenhouse gas emissions, land use and planning, construction noise, and transportation; and WHEREAS, in accordance with State CEQA Guidelines section 15085, a Notice of Completion was prepared and filed with the Office of Planning and Research on July 23, 2021; and
WHEREAS, as required by State CEQA Guidelines section 15087(a), the City provided Notice of Availability of the Draft PEIR to the public at the same time that the City sent Notice of Completion to the Office of Planning and Research, on July 23, 2021; and
WHEREAS, during the public comment period, copies of the Draft PEIR and technical appendices were available for review and inspection at the offices of the City of San Clemente, on the City’s website, and at the San Clemente Public Library; and WHEREAS, pursuant to State CEQA Guidelines section 15087(e), the Draft PEIR was circulated for at least a 45-day public review and comment period from July 23, 2021 to September 7, 2021; and
804
ATTACHMENT 6
WHEREAS, during the public review and comment period, the City consulted with and requested comments from all responsible and trustee agencies, other regulatory agencies, and others pursuant to State CEQA Guidelines section 15086; and WHEREAS, the City received two written comment letters on the Draft PEIR; and WHEREAS, pursuant to Public Resources Code section 21092.5, the City provided copies of its responses to commenting public agencies at least ten (10) days prior to the City’s consideration of the Final PEIR on October 5, 2021; and WHEREAS, on August 18, 2021 at a duly noticed regular meeting, the Planning Commission considered evidence presented by City staff and other interested parties regarding PLN20-036 to forward a recommendation to the City Council to adopt the Housing Element and Safety Element Updates; and
WHEREAS, on October 5, 2021 at a duly noticed regular meeting, the City Council considered the Planning Commission’s recommendation as well as evidence presented by the City staff and other interested parties regarding the Final Program EIR (Final PEIR) and PLN20-036 to adopt the Housing Element and Safety Updates; and WHEREAS, on September 24, 2021, the City released the Final PEIR, which consists of the Draft EIR, all technical appendices prepared in support of the Draft PEIR, all written comment letters received on the Draft PEIR, written responses to all written comment letters received on the Draft PEIR, errata to the Draft PEIR and technical appendices; and
WHEREAS, all potentially significant adverse environmental impacts were sufficiently analyzed in the PEIR; and
WHEREAS, as contained herein, the City has endeavored in good faith to set forth the basis for its decision on the Project and the revised Housing Element Update; and
WHEREAS, all of the requirements of the Public Resources Code and the State CEQA Guidelines have been satisfied by the City in connection with the preparation of the PEIR, which is sufficiently detailed so that all of the potentially significant environmental effects of the Project and the revised Housing Element Update have been adequately evaluated; and
WHEREAS, the PEIR prepared in connection with the Project sufficiently analyzes the Project’s and the revised Housing Element Update’s potentially significant environmental impacts and analyzes a range of feasible alternatives capable of reducing these effects to an even lesser level of significance; and WHEREAS, the City has made certain findings of fact, as set forth in Exhibit A to Resolution No. 21-40, incorporated herein, based upon the oral and written evidence 805
ATTACHMENT 6
presented to it as a whole and the entirety of the administrative record for the Project, which are incorporated herein by this reference; and
WHEREAS, the City finds that environmental impacts that are identified in the PEIR as less than significant and do not require mitigation are described in Section 4 of Exhibit B to Resolution No. 21-40, incorporated herein; and WHEREAS, the City finds that environmental impacts that are identified in the PEIR that are less than significant with incorporation of mitigation measures are described in Section 4 of Exhibit B to Resolution No. 21-40, incorporated herein; and WHEREAS, the City finds that even with the incorporation of all feasible mitigation measures, the environmental impacts that are identified in the PEIR that are significant and unavoidable are described in Section 5 of Exhibit B to Resolution No. 21-40, incorporated herein; and
WHEREAS, the cumulative impacts of the Project identified in the PEIR and set forth herein, are described in Section 7 of Exhibit B to Resolution No. 21-40, incorporated herein; and
WHEREAS, the potential significant irreversible environmental changes that would result from the proposed Project identified in the PEIR and set forth herein, are described in Section 5 of Exhibit B to Resolution No. 21-40, incorporated herein; and WHEREAS, the existence of any growth-inducing impacts resulting from the proposed Project identified in the PEIR and set forth herein, are described in Section 6 of Exhibit B to Resolution No. 21-40, incorporated herein; and WHEREAS, alternatives to the proposed Project that might further reduce the Project’s potential environmental impacts are described in Section 9 of Exhibit B to Resolution No. 21-40, incorporated herein; and
WHEREAS, the Statement of Overriding Considerations that indicates the benefits of the Project outweigh the unavoidable significant environmental effects is described in Exhibit A to Resolution No. 21-40, incorporated herein; and WHEREAS, all the mitigation measures identified in the PEIR and necessary to reduce the potentially significant impacts of the proposed Project to a level of less than significant are set forth in the Mitigation Monitoring and Reporting Program (MMRP) in Exhibit B to Resolution No. 21-40, incorporated herein; and WHEREAS, prior to taking action, the City has heard, been presented with, reviewed and considered all of the information and data in the administrative record, including but not limited to the PEIR, and all oral and written evidence presented to it during all meetings and hearings; and
WHEREAS, the PEIR reflects the independent judgment of the City and is deemed adequate for purposes of making decisions on the merits of the Project; and 806
ATTACHMENT 6
WHEREAS, no comments made in the public hearings conducted by the City and no additional information submitted to the City have produced substantial new information requiring recirculation of the PEIR or additional environmental review of the Project and the revised Housing Element Update under Public Resources Code section 21092.1 and State CEQA Guidelines section 15088.5; and
WHEREAS, on October 5, 2021, the City conducted a duly noticed public hearing on Resolution No. 21-40, at which time all persons wishing to testify were heard and the Project was fully considered; and
WHEREAS, between January 2022 and September 2022, the City received two letters from HCD, posted three rounds of revisions online, and conducted multiple meetings with housing advocacy organizations and other public commenters to receive and address public input on the revised 2021-2029 Housing Element Update (the “revised Housing Element Update”); and
WHEREAS, on September 20, 2022, the City conducted a duly noticed public hearing on the revised Housing Element Update, at which time all persons wishing to testify were heard and the revised Housing Element Update was fully considered; and WHEREAS, all other legal prerequisites to the adoption of this Resolution have occurred.

NOW, THEREFORE, the City Council of the City of San Clemente hereby resolves as follows:

SECTION 1. EIR is Complete. The City Council reviewed and considered the Program EIR, any oral or written comments received, and the administrative record prior to making any decision on the Project. The City Council found that the Program EIR was completed in compliance with CEQA and the State CEQA Guidelines. The City Council declared that no evidence of new significant impacts of “substantial importance” as defined by State CEQA Guidelines section 15088.5, were received by the City after circulation of the Draft PEIR that would require recirculation. Therefore, the City Council hereby certifies the Program EIR based on the entirety of the record of proceedings.

The City Council adopted the CEQA Findings of Fact and Statement of Overriding Considerations, which were prepared in accordance with State CEQA Guidelines sections 15091 and which are incorporated herein by this reference. Further, pursuant to Public Resources Code section 21081.6, the City Council adopted the Mitigation Monitoring and Reporting Program incorporated herein as Chapter 13 of Exhibit B of Resolution No. 21-40.

SECTION 2. EIR Addresses the Environmental Impacts. Having considered the entirety of the administrative record, the City Council found that all environmental impacts of the Project were addressed within the Program EIR. The City Council found that the Program EIR contained a complete, objective, and accurate reporting of the environmental impacts associated with the Project and reflected the independent judgment and analysis of the City.
807
ATTACHMENT 6
SECTION 3. Adoption of the EIR. Based upon the entire record before it, including the Program EIR, CEQA Findings of Fact and Statement of Overriding Considerations, and all written and oral evidence presented, the City Council adopted the Program Environmental Impact Report (State Clearinghouse No. 2021020256).

SECTION 4. Findings for the revised Housing Element Update (PLN20-036).

The City Council has reviewed and considered the revised Housing Element Update (PLN20-036), any oral or written comments received, and the administrative record prior to making any decision on the revised Housing Element Update. Pursuant to Municipal Code Section 17.16.030(I), the City Council makes the following findings with respect to adopting the revised Housing Element Update:
a. The proposed amendment is internally consistent with those portions of the General Plan which are not being amended. All policies and program recommendations in the revised Housing Element Update have been reviewed, analyzed, and found to be consistent with the other elements of the General Plan, such as the Land Use Element in that the project would support the City’s goal to provide a mix of housing to meet the diverse economic and physical needs of its residents by planning for a variety of housing opportunities, programs, and services. In addition, the housing program for future rezoning of potential housing sites would include making the City’s Design Standards part of the Zoning Ordinance ensuring the City’s expectation for high quality design is met. b. The proposed amendment will not adversely affect the public health, safety, and welfare. The revised Housing Element Update will address how the City provides an adequate supply of housing, including the City’s RHNA share for the 2021-2029 planning period. Therefore, the Housing Element Update will not adversely affect the public health, safety, and welfare. Specifically, the Housing Element Update plans for healthy housing opportunities for all income levels and physical abilities, and any potential future development will be subject to mitigation measures and, if necessary, additional environmental review.

SECTION 5. Adoption of PLN20-036. The City Council hereby approves General Plan Amendment No. 20-036, to adopt the revised Housing Element Update, as shown in Exhibit “A”.

SECTION 6. Notice of Determination. The City Council hereby directs staff to prepare and file a Notice of Determination (“NOD”) with the County Clerk’s Office for the County of Orange within five (5) business days of the adoption of this Resolution.

SECTION 7. Custodian of Records. The documents and materials that constitute the record of proceedings on which these findings are based are located at 808
ATTACHMENT 6
the Community Development Department, San Clemente City Hall, 910 Calle Negocio, San Clemente, CA 92673.

APPROVED AND ADOPTED this 20th day of September, 2022.

ATTEST:
_______________________________ ___________________________ City Clerk of the City of Mayor of the City of San
San Clemente, California Clemente, California
Exhibits:

A. Revised 2021-2029 Housing Element Update (Clean Version) 809
ATTACHMENT 6

STATE OF CALIFORNIA )
COUNTY OF ORANGE ) ss.

CITY OF SAN CLEMENTE )
I, JOANNE BAADE, City Clerk of the City of San Clemente, California, do hereby certify that Resolution No. _________ was adopted at a regular meeting of the City Council of the City of San Clemente held on the 20th day of September, 2022, by the following vote:

AYES:

NOES:

ABSENT:

IN WITNESS WHEREOF, I have hereunto set my hand and affixed the official seal of the City of San Clemente, California, this 20th day of September, 2022. __________________________
CITY CLERK of the City of
San Clemente, California
APPROVED AS TO FORM:
__________________________

CITY ATTORNEY
810

AGENDA REPORT

CITY OF SAN CLEMENTE
City Council Meeting
910 Calle Negocio
2nd Floor
San Clemente, California
www.san-clemente.org
Meeting Date: 9/20/2022 Agenda Item: A.

Department: Community Development
Prepared By: Cecilia Gallardo-Daly
Subject:

Capistrano Shores Mobile Home Park - Letter of Support for Height of Replacement Coaches Fiscal Impact:

None
Summary:

Capistrano Shores Mobile Home Park has requested a letter of support from the City Council to the California Coastal Commission regarding the height of replacement coaches at the mobile home park.

Background:

Capistrano Shores Mobile Home Park (CSMHP) has requested a letter of support from the City Council regarding the height of replacement coaches currently under consideration by the California Coastal Commission (CCC) through Coastal Development Permit (CDP) applications. At the City Council meeting of September 6, 2022, the City Council agendized a letter of support for the Capistrano Shores community in their efforts to obtain permits from the CCC for replacement coaches at a reasonable height.

Discussion:

CSMHP has requested a letter of support from the City Council to the CCC for replacement coaches at a height of 16’ rather than the 11’ 5” under consideration by CCC staff. CSMHP has indicated that at the 11’ 5” height proposed by CCC staff, the constructability of such a coach is technically and practically infeasible. According to CSMHP, the 11’ 5” coach height would result in a floor to ceiling height of 7’ 6’ to account for the ceiling and interior walls.

According to CCC staff, if Coastal views are blocked at 16’, CCC staff will recommend a lower height.

As of the writing of this report, the CCC staff had not produced a staff report with the height recommendations or justification or findings to support a height lower than 16’.

Capistrano Shores Mobile Home Park prepared and submitted a draft letter of support. At the meeting September 6, 2022, the Council requested the letter of support be placed on the September 20, 2022 agenda for consideration in advance of the October CCC hearing on a pending CDP mobile home replacement application. The draft letter of support prepared by Capistrano Shores Mobile Home Park is attached.

Recommended Actions:

Staff recommends that the City Council authorize the Mayor to execute a letter of support to the CCC CITY OF SAN CLEMENTE Page 1 of 2 Printed on 9/15/2022
powered by Legistar™811
Meeting Date: 9/20/2022 Agenda Item: A.
regarding the height of replacement coaches at Capistrano Shores Mobile Home Park. A sample letter is attached for Council consideration.

Attachment:

Capistrano Shores - City of SC Support letter DRAFT
Notification:

NA
CITY OF SAN CLEMENTE Page 2 of 2 Printed on 9/15/2022
powered by Legistar™812
08/30/2022

CALIFORNIA COASTAL COMMISSION
South Coast District
301 Ocean Blvd. Suite 300
Long Beach, CA 90802
ATTN: Marlene Alvarado
Re: Capistrano Shores Mobilehome Park
Dear Coastal Commissioners,
The City of San Clemente leadership and staff is writing to you in support of the Capistrano Shores Community and their efforts to obtain mobile home replacement permits at a height of 16 feet. We respectfully request the staff and commission continue to allow a height of 16 feet. The city believes this height strikes a balance between preserving public views from the public Marblehead walking trails, the Pico view corridor, and neighboring public view vantages; with the need for the long-established community of Capistrano Shores to replace antiquated mobile homes.

The City of San Clemente supports the development and improvement of the Capistrano Shores Community. This community has existed within city limits without interruption for over 63 years. The height of 16 feet has been found in numerous Coastal Commission decisions to be consistent with the visual quality provisions of the Coastal Act. We are aware of at least eight recent and previously issued CDPs at this height. We find the proposed 16’ height to be reasonable and consistent with the neighborhood and maintains expansive coastal vistas when viewed from the public walking trails, parks and public vantages from the Marblehead Coastal Trails and the Pico corridor.

The City of San Clemente has at times been vocal in opposition of various projects within the community. It is clear the Capistrano Shores community has reversed course on design standards in cooperation to meet the provided feedback and instruction from previously issued development permits for 6+ years now. What is presently proposed to replace a mobile home with a new home at 16 feet, we believe, meets both the city’s goals and the community’s needs without compromising public views.

In closing, we kindly request that the Commission and its staff remain consistent in their review and analysis and approve replacement permits for mobile homes within the Capistrano Shores with industry standard designs and accommodations at 16 feet.

Kind regards,
813

AGENDA REPORT

CITY OF SAN CLEMENTE
City Council Meeting
910 Calle Negocio
2nd Floor
San Clemente, California
www.san-clemente.org
Meeting Date: 9/20/2022 Agenda Item: B.

Department: City Manager
Prepared By: Jennifer Savage, Assistant to the City Manager Subject:

CITY OF SAN CLEMENTE EFFORTS REGARDING E-BIKE SAFETY
Fiscal Impact:

None to receive and file this report.

Summary:

This report presents the City of Carlsbad Emergency Order for E-Bikes and provides an overview of City of San Clemente efforts regarding e-bike safety.

Background:

On September 6, 2022, the City Council requested review of the Carlsbad Emergency Order for EBikes. City Council also asked about bike lanes on Pico Avenue, near the high school, and about the Public Safety Committee’s efforts regarding e-bikes. This report presents the City of Carlsbad Emergency Order for E-Bikes; summarizes the City of San Clemente’s efforts for e-bike safety education, planning and construction of bike lanes, and implementation of bicycle regulations; describes the Public Safety Committee’s work regarding e-bike safety; and discusses next steps.

Discussion:

Carlsbad’s Emergency Order. In April 2022, the City of Carlsbad adopted a municipal code update regarding the operation of regulated mobility devices to enable enforcement of safe and considerate use of e-bikes, scooters and similar modes of transportation. The new regulations became effective May 5, 2022 (Attachment 1). On August 23, 2022, the City of Carlsbad’s City Manager/Director of Emergency Services declared a local state of emergency for bike, e-bike, and traffic safety (Attachment 2).

On August 30, 2022, the City Council ratified the declaration and approved a $2,000,000 appropriation from unspent City of Carlsbad funds from the previous fiscal year (Attachment 3). The emergency proclamation requires City Council review every 60 days until the proclamation’s termination. This appropriation would overstaff sworn Carlsbad officers by four full-time equivalents for the remaining fiscal year, and provide additional overtime for enforcement efforts. The City of Carlsbad will consider a comprehensive plan to address the matter at its September 27, 2022 City Council meeting.

San Clemente’s Regulations. The City of San Clemente’s Municipal Code requires bicycle operators to obey traffic laws. In January 2022, City Council approved a prohibition of e-bikes on the beach trail. In addition, the City is working on an ordinance to regulate bicycles on sidewalks, which CITY OF SAN CLEMENTE Page 1 of 4 Printed on 9/15/2022
powered by Legistar™814
Meeting Date: 9/20/2022 Agenda Item: B.
will come before Council in approximately Spring 2023.

San Clemente’s E-Bike Safety Education. The City’s educational efforts regarding e-bikes and safety include:
· Bike Safety Rodeo. This event was most recently held in May 2021 and May 2022. The Bike Safety Rodeo, intended for ages 17 and under, coincides with Bike Safety Month (May) to spread bike safety awareness within the San Clemente community. The Beaches, Parks and Recreation Department (BPR) coordinates with the Orange County Sherriff’s Department (OCSD) and Orange County Fire Authority (OCFA), and invites local e-bike and bike vendors and groups. This event provides a physical bike course that emulates a mini city for participants to practice their bike riding skills and receive guidance from OCSD. · OCSD / Marine Safety. In January 2022, City Council approved a prohibition of e-bikes on the beach trail. Beginning in 2022, OCSD and Marine Safety began educating the public of the limitation. In March 2022, the Cones with Cops and Lifeguards focused on ocean safety and e-bike safety. Enforcement of the beach trail e-bike prohibition began on 2022 Memorial Day weekend. On June 18, OCSD and Marine Safety issued warnings to further educate the public.
· Marketing and Social Media. Marine Safety and BPR continue to inform the public of the beach trail rules and e-bike safety. Messaging includes a May 2022 Marine Safety Public Service Announcement (PSA) video posted on social media and the City’s website; daily beach announcements on the beach trail and pier three times a day; bike safety tips posted on social media; educating junior guards about bike safety and beach trail rules. The City published a new e-bike PSA the week of September 12, 2022, which was created in collaboration with Chad and JT.
· Elementary School Outreach. Every spring, Marine Safety educates third, fourth, and fifth graders about ocean safety and bicycle rules.
· Laurie Davies’ Bike Safety Event. BPR represented the City of San Clemente at this event held in May 2022. BPR provided bike safety materials, Bike Rodeo flyers, and trail maps.

San Clemente’s Bike Lanes. In December 2020, City Council approved a contract for project design for bike lanes on Avenida Pico. The project includes two phases:
· Phase 1 studies the addition of a separated Class 1 off-street bicycle/pedestrian path from Calle Frontera to Camino Vera Cruz. The design may include retaining walls and signage, and will consider impacts to existing improvements, monument signage, landscaping, trees, and other technical and safety factors.
· Phase 2 studies the addition of Class 2 bike lanes on Avenida Pico from I-5 to Calle Frontera.

The design will consider traffic safety impacts, the number of traffic lanes impacted, relationship to high school traffic, and other technical and safety factors. Class 2 bike lanes would likely require the loss of travel lane(s) on Avenida Pico and, therefore, thorough traffic analysis is necessary to understand the implications associated with such modifications. Staff anticipates requesting a contract revision at an October 2022 City Council meeting to CITY OF SAN CLEMENTE Page 2 of 4 Printed on 9/15/2022
powered by Legistar™815
Meeting Date: 9/20/2022 Agenda Item: B.
anticipates requesting a contract revision at an October 2022 City Council meeting to accommodate thorough traffic analysis.

It should be noted that County approval is required because Avenida Pico is an arterial street included in the County’s Master Plan of Arterial Highways. City staff anticipate presenting a design to City Council in Fall 2023.

San Clemente Public Safety Committee (PSC). On November 16, 2021, Council approved the PSC’s work plan, which included an E-Bicycle/Traffic Safety project. The PSC began work on the EBicycle/Traffic Safety Project in December 2021 and is in process of investigating the topic. The purpose, goals and deliverables of project state, “In the past year, both the OCSD and OCFA have reported a significant increase in the regional number of accidents, injuries, and fatalities involving ebicycles. In an effort to address these issues, the Committee will compile bicycle traffic data as it becomes available. The Committee will coordinate with the OCSD, OCFA, and the City’s Park Ranger Division in order to identify any measures the City could take to help mitigate these occurrences. The committee will forward any recommendations for review to the City Council.” City staff anticipate the project will be recommended for inclusion in the upcoming PSC FY 22-23 Annual Work Plan to allow completion of the project. The PSC’s next meeting is scheduled for September 27, 2022.

Next Steps. City staff will continue to address e-bikes and e-bike safety, including the following activities:
· Ongoing. The City of San Clemente will continue to market and promote educational opportunities and PSAs regarding e-bikes and e-bike safety. · Ongoing. OCSD and Marine Safety will continue to educate the public and enforce regulations.
· October 2022. The PSC will make a special presentation to the City Council on October 18, 2022, which follows the PSC September 27, 2022 meeting. · Spring 2023. The City will present an ordinance regarding operation of bicycles on sidewalks to the City Council in Spring 2023.
· Fall 2023. The Engineering Division will present a design for bike lanes on Avenida Pico to the City Council at the end of 2023.

Plan and Policy Consistency:

The activities described above are consistent with the General Plan including, but not limited to, the following Goals and Policies:
· Policy LU-14.05. Bike and Pedestrian Environment. We provide a high quality bicycle and pedestrian environment with “living street” designs, consistent landscaping, lighting, sidewalks, traffic calming measures, bikeways and trails, consistent with the Bicycle and Pedestrian Master Plan, Tree Ordinance and Design Guidelines.
· Policy LU-14.06. Transportation Improvements. We support transportation improvements in the area that enhance the safety, convenience and appearance of bicycle and pedestrian facilities and that minimize adverse impacts on adjacent neighborhood streets and parking, pursuant to the Mobility Element and Bicycle and Pedestrian Master Plan. · Policy M-1.20. Street Redesign. We seek opportunities to redesign streets so that they are compatible with the surrounding neighborhood context and the Community’s vision of the future, and only consider street widening or intersection expansions after considering multi-modal CITY OF SAN CLEMENTE Page 3 of 4 Printed on 9/15/2022
powered by Legistar™816
Meeting Date: 9/20/2022 Agenda Item: B.
and only consider street widening or intersection expansions after considering multi-modal alternative improvements to non-automotive facilities.
· Policy M-2.15. Bicycle-Friendly Infrastructure. We shall employ bicycle-friendly infrastructure design using new technologies and innovative treatments, where necessary to improve bicyclists’ safety and convenience.
· Policy M-2.29. Safety Awareness. We encourage and support the creation of comprehensive safety awareness programs for pedestrians, skateboards, cyclists and drivers. · Policy M-2.30. Improvements along Bicycle and Pedestrian Routes. We improve and maintain alternative transportation infrastructure and assign a high priority to improvements along primary pedestrian and bicycle routes to schools.
· Policy M-2.36 Active Transportation Linkages to Schools. We assign high priority to the improvement and maintenance of active transportation infrastructure within one half mile of San Clemente schools.

Council Strategy:

None.

Recommended Actions:

Staff Recommendation
Staff recommends that the City Council receive and file the Administrative Report, dated September 20, 2022, and on file with the City Clerk.

Attachment:

1. Carlsbad Operation of Regulated Mobility Devices Ordinance

2. Carlsbad Local State of Emergency

3. Carlsbad Ratification and Appropriation Staff Report, August 30, 2022 Notification:

Public Safety Committee
CITY OF SAN CLEMENTE Page 4 of 4 Printed on 9/15/2022
powered by Legistar™817
Chapter 10.56

OPERATION OF REGULATED MOBILITY DEVICES
Sections:

10.56.010 Definitions.

10.56.020 Operation of regulated mobility device.

10.56.030 Enforcement.

10.56.040 Exemptions.

10.56.050 Severability.

10.56.010 Definitions.
“Bicycle” has the same meaning as in California Vehicle Code Section 231, as it may be amended from time to time.
“Electric bicycle” has the same meaning as in California Vehicle Code Section 312.5, as it may be amended from time to time.
“Electric personal assistive mobility device” has the same meaning as in California Vehicle Code Section 313, as it may be amended from time to time.
“Electrically motorized boards” has the same meaning as in California Vehicle Code Section 313.5, as it may be amended from time to time.
“Low speed vehicle” has the same meaning as in California Vehicle Code Section 385.5, as it may be amended from time to time.
“Motorized scooter” has the same meaning as in California Vehicle Code Section 407.5, as it may be amended from time to time.
“Operator” means a person who owns, operates, and/or controls a regulated mobility device. “Public area” means any outdoor area that is open to the members of the public for public use, whether owned or operated by the city or a private party. “Regulated mobility device” means bicycles, electric bicycles, electric personal assistive mobility devices, electrically motorized boards, low-speed vehicles, motorized scooters, shared mobility devices, or other similar vehicles.
“Rider” means a traveler riding in or on a regulated mobility device who is not operating it. “Shared mobility device” has the same meaning as in California Civil Code Section 2505, as it may be amended from time to time.
818
“Vehicle” has the same meaning as in California Vehicle Code Section 670, as it may be amended from time to time.

10.56.020 Operation of regulated mobility devices.

A. Prohibition of regulated mobility devices where posted.

It is prohibited to operate or ride on a regulated mobility device in public areas where such prohibition is posted by signs or as otherwise set forth in this ordinance. A list of public locations where regulated mobility devices are prohibited shall be on file in the city clerk’s office. The list may be amended from time to time by resolution of the city council.

B. No operating or riding on sidewalks and public facilities.

No person shall operate or ride a regulated mobility device upon any sidewalk, in any public drainage facility, culvert, ditch, channel, or any other public athletic/sports court, or gymnasium in the city.

C. Duty to operate with due care, reduce speed.

1. The operator of a regulated mobility device shall exercise all due care and shall reduce the speed of the device, obey all traffic control devices, and take all other action relating to operation of the device as necessary to safeguard the safety of the operator, passengers, and any persons or other vehicles or devices in the immediate area. It shall also be unlawful to transport any other person upon the bar, handle bars, floorboard or other area of regulated mobility device not designed for passenger riding or designed for a single person, or cling to or attach oneself or one’s regulated mobility device with an operator or rider on board to any moving vehicle or motorized or non-motorized wheeled device.

2. Persons operating or riding a regulated mobility device on a city trail must dismount the regulated mobility device where the trail width is less than 5 feet and a pedestrian or equine is within a distance of 50 feet from the regulated mobility device.

10.56.030 Enforcement.

In lieu of a fine or administrative citation as authorized by this code, and in lieu of filing charges in any court having jurisdiction over a violation, the police chief or designee may allow a violator of this chapter to complete a police department provided safety course for regulated mobility devices.
819

10.56.040 Exemptions.

A. Public agency personnel.

Notwithstanding any other provision of this chapter, or any other section of this code, city and public agency personnel may operate regulated mobility devices or other vehicles at any place in the city in the performance of their official duties.

B. Disability.

This chapter is not intended to apply to or otherwise restrict regulated mobility devices used in a safe manner by physically disabled persons as defined under the Americans with Disabilities Act (42 U.S.C. Section 12101 et seq.).

10.56.050 Severability.

If any portion of this chapter, or its application to particular persons or circumstances, is held to be invalid or unconstitutional by a final decision of a court of competent jurisdiction, the decision will not affect the validity of the remaining portions of this chapter or the application of the chapter to persons or circumstances not similarly situated. 820
821
822
Meeting Date: Aug. 30, 2022
To: Mayor and City Council
From: Scott Chadwick, City Manager
Staff Contact: Geoff Patnoe, Assistant City Manager
[email protected] 442-339-2820
Subject: Ratification of a Proclamation of Bicycle, E-Bicycle and Motorized Mobility Device Safety Local Emergency
Districts: All
Recommended Action
Adopt a resolution:
• Ratifying the Aug. 23, 2022, Proclamation of Bicycle, E-Bicycle and Motorized Mobility Device Safety Local Emergency in the City of Carlsbad, California • Authorizing the Deputy City Manager of Administrative Services to appropriate $2 million from unspent funds from the fiscal year 2021-22 General Fund budget to support the city’s coordinated efforts to increase attention and resources on a range of solutions including infrastructure, safety, enforcement, and safe driving and riding education Executive Summary
Carlsbad’s City Manager/Director of Emergency Services proclaimed a state of local emergency1 on Aug. 23, 2022, in response to a more than 200% increase in collisions involving bikes and ebikes since 2019, including two fatalities since Aug. 7, 2022. The proclamation is intended to immediately increase attention and resources on a range of solutions including infrastructure, safety, enforcement and safe driving and riding education.

Upon proclaiming the local emergency, the City Manager authorized the redeployment of resources from the city’s police, fire, transportation and communication departments to develop a comprehensive plan to address the emergency and actions that can be implemented immediately. This report requests funding to support immediate actions.

Staff are requesting authorization and funding to overstaff sworn positions by the equivalent of four fulltime positions for the remaining months of the fiscal year to expand enforcement. In addition, staff are requesting funding for overtime for additional enforcement efforts and to 1 California Government Code Section 8630, and the City of Carlsbad’s Emergency Services Ordinance, including Carlsbad Municipal Code Section 6.04.100(A)(1), empower the City Manager, as the City of Carlsbad’s Director of Emergency Services, to proclaim the existence of a local emergency, subject to ratification by the City Council when there exists, or there is threatened to exist, conditions of extreme peril to safety of persons and property within the City of Carlsbad.

Aug. 30, 2022 Item #12 Page 1 of 13
CA Review CM/RK
823
provide officer training to those who will in turn facilitate education and outreach to the community.

Staff will present a proposed comprehensive plan to City Council for consideration on Sept. 27, 2022.

Discussion
Overview
The exponential increase in e-bikes and cycling in general, around Carlsbad has led to a corresponding increase in collisions, including two tragic deaths in the last month. E-bikes have been a main focus of community concerns, but not the only focus. The emergency proclamation includes bikes, e-bikes and other motorized mobility devices.

From circulation to mobility
Much of Carlsbad’s transportation system has developed within the last 40 years, concurrent with the city’s physical expansion. Transportation planning from the 1980s to 2015 was focused on improving car travel, with an emphasis on mitigating traffic congestion and delays. The city’s Growth Management Program established standards for roadway level of service, requiring developers to fund roadways expansions as needed to accommodate new residents.

The 1994 General Plan and the Growth Management Plan helped assure that infrastructure was provided in a systematic fashion as the city grew and developed. The transportation system envisioned in the 1994 General Plan has largely been realized, with the majority of the street infrastructure constructed to its ultimate configuration.

In 2015, the City Council approved an updated General Plan. The Mobility Element of the updated plan sets out a new policy vision for moving people around Carlsbad rather than just cars. This new vision reflects the city’s current stage of life as well as environmental and cultural trends.

For example, as the city looks increasingly to infill development rather than outward expansion, the primary transportation issues relate to protecting and enhancing the community’s quality of life, as reflected in the core values of the Carlsbad Community Vision. The community’s vision includes better pedestrian and bicycle connections between neighborhoods, destinations, and different parts of the community, and a balanced transportation system rather than a singular focus on automobile travel.

About e-bikes
E-bikes and other newer modes of travel can be a very positive addition to transportation choices available to the community. E-bikes make bike riding much more accessible, especially on Carlsbad’s hilly streets and for longer distances that may be otherwise too challenging for riders. They are environmentally friendly and support the city’s Climate Action Plan goals to reduce greenhouse gas emissions.

Because a driver’s license is not required to operate an e-bike in the state of California, and ebikes can travel up to 28 mph, many riders lack the knowledge and maturity needed to ride safely. The city has received many complaints related to reckless riding, and the city has worked with local schools to host educational workshops for students and parents, as well as other strategies to address this concern.

Aug. 30, 2022 Item #12 Page 2 of 13
824
City actions to date
The City of Carlsbad has initiated several programs and actions in recent years to address traffic safety concerns and overall mobility in our community.

Infrastructure improvements
In January 2021, the City Council approved the Sustainable Mobility Plan, an overarching strategy that includes expanding sidewalks and bike lanes while slowing down cars on streets throughout Carlsbad. The city’s traffic engineers have completed several of these projects and have more in the planning stages. In June 2022, the City Council directed staff to further expedite streets projects in the current fiscal year’s budget. However, with hundreds of miles of city roads, it will still take many years to complete the projects in the plan.

The city has also recently completed 10 residential traffic safety projects, which include working with specific neighborhoods to determine the best options to slow down traffic. Solutions often include installing speed “cushions,” new signs, traffic circles and curb extensions. City staff are planning 11 more neighborhood safety projects in the year ahead.

Public awareness and education
Beginning in 2021, the city launched an e-bike safety public awareness campaign with public service announcement videos, fliers and social media. Other efforts have included:
• Partnering with local schools to put on e-bike educational workshops for students and parents
• Partnering with mobility organizations to promote bike and e-bike safety workshops • Deploying electronic speed sign and electronic message boards from December 2021 to August 2022
o Speed signs installed at 23 locations throughout the city in response to traffic related complaints
o Message board used at five locations throughout the city in response to trafficrelated complaints Stricter laws
In April 2022, Carlsbad became the only city in the region to pass specific rules for e-bike riders and users of other motorized mobility devices (Exhibit 2). This provides Carlsbad police officers with more enforcement options, including a diversion program in which minors have the option to complete an e-bike safety course after their first offense.

Enforcement
The City of Carlsbad Police Department has increased enforcement to improve traffic safety, including e-bike safety. This includes:
• Conducting interagency enforcement surge on June 22, 2022, resulting in 240 citations including violations of e-bike rules
• Dedicating a school resource officer to e-bike safety in the Village for the summer 2022 school break
• Through a California Office of Traffic Safety grant:
o 2022 - Conducted five distracted driving details and seven bicycle safety details Aug. 30, 2022 Item #12 Page 3 of 13
825
o 2021 - Conducted two bicycle enforcement details and two pedestrian enforcement details
o 2020 - Conducted three bicycle safety operations, three distracted driver operations, as well as three operations that focused on both pedestrian and bicycle safety operations
About the emergency proclamation
The California Emergency Services Act allows cities to proclaim a local state of emergency when needed to protect public safety in extreme circumstances. Carlsbad’s emergency proclamation went into effect immediately and was placed on the Aug. 30, 2022, meeting agenda so the City Council could consider whether or not to ratify the proclamation. If ratified, the emergency proclamation will then need to be reviewed by the City Council no less frequently than every 60 days until the City Council ends it.

Since the Aug. 23, 2022, emergency proclamation, the City Manager directed several immediate actions:

Procurement and resourcing
• Redeployed resources from the city’s police, fire, transportation and communication departments to develop a comprehensive plan to address the emergency and actions that can be implemented immediately
• Identified initial funding needed to support the actions necessary to address the emergency
Public awareness, education and enforcement
• Identified high collision and high traffic areas and deployed speed feedback signs and electronic messaging boards to remind motorists of the importance of roadway safety • Deployed electronic messaging boards to remind motorists of the importance of roadway safety
• Sent information about emergency proclamation and traffic safety behaviors to 80,026 email addresses, with a 61% open rate
• Shared urgency of traffic safety issue and city’s emergency proclamation with local media, resulting in coverage from all local TV, radio and print outlets • Coordinated with school districts and private schools in Carlsbad to share traffic safety messages in coordination with back to school
• Shared traffic safety messages through the city’s social media channels • Began development of an enhanced public education campaign Infrastructure
• Expedited execution of contracts and agreements to secure additional speed feedback signs and electronic messaging boards
• Accelerated current capital improvement projects that include green bicycle lane treatments and initiated another project for additional green bicycle lane treatments in high-collision areas in the city
Fiscal Analysis
Staff are requesting City Council approval to appropriate up to $2 million from the city’s unspent fiscal year 2021-22 General Fund budget to be used to support the city’s coordinated Aug. 30, 2022 Item #12 Page 4 of 13
826
efforts to increase attention and resources on a short-term range of solutions including infrastructure, safety, enforcement and a focus on safe driving behavior education. The following are estimated costs that have been identified by staff:

Action Amount
Overstaff Police Dept. sworn positions by four additional full-time officers $535,000 Police Dept. overtime for training and enforcement $100,000 Procure additional speed feedback signs and electronic messaging boards $250,000 Activities such as infrastructure, enforcement and safe driving behavior education $1,115,000 Total $2,000,000
Next Steps
Staff will continue to expedite measures to address roadway safety. A report with additional activities for City Council’s consideration will be presented on Sept. 27, 2022.

Environmental Evaluation
The allocation of funding for anticipated actions intended to mitigate the emergency, which includes infrastructure and safety improvements, and education and enforcement efforts focusing on safe driving behavior are a Class 1 categorical exemption under CEQA Guidelines Section 15301 - Existing Facilities. Specifically, Section 15301(c) exempts existing highways and streets, sidewalks, gutters, bicycle and pedestrian trails, and similar facilities (this includes road grading for the purpose of public safety), and other alterations such as the addition of bicycle facilities, including but not limited to bicycle parking, bicycle-share facilities and bicycle lanes, transit improvements such as bus lanes, pedestrian crossings, street trees and other similar alterations that do not create additional automobile lanes.

The anticipated improvements to the city’s existing mobility network under this action will improve public safety and address the critical issues raised in the emergency declaration.

Actions are anticipated to involve negligible expansion of the current facilities and infrastructure beyond existing and will not result in additional automobile lanes. The actions are not expected to increase vehicular use of the roadway, will occur within the existing public right-of-way, and will not change the overall facility use of the mobility network. No exception to the exemption as sets forth in CEQA Guidelines Section 15300.2 applies.

For the reasons stated above, the action is categorically exempt from CEQA under CEQA Guidelines Section 15304(e), which applies to the minor temporary use of land having negligible or no permanent effects on the environment, and CEQA Guidelines Section 15304(h), which covers the creation of bicycle lanes on existing rights-of-way.

Public Notification
This item was noticed in keeping with the Ralph M. Brown Act and it was available for public viewing and review at least 72 hours before the scheduled meeting date.

Exhibits

1. City Council resolution

2. Carlsbad Municipal Code Chapter 10.56 – Operation of Regulated Mobility Devices Aug. 30, 2022 Item #12 Page 5 of 13
827

Exhibit 1
RESOLUTION NO.                   .

A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CARLSBAD, CALIFORNIA, RATIFYING THE PROCLAMATION OF BICYCLE, E‐BICYCLE

AND MOTORIZED MOBILITY DEVICE SAFETY LOCAL EMERGENCY IN THE CITY OF CARLSBAD, CALIFORNIA DATED AUG. 23, 2022, BY THE DIRECTOR OF EMERGENCY SERVICES; AND, AUTHORIZING THE DEPUTY CITY MANAGER OF ADMINISTRATIVE SERVICES TO APPROPRIATE $2 MILLION FROM UNSPENT FUNDS FROM THE FISCAL YEAR 2021‐2022 GENERAL FUND BUDGET TO SUPPORT THE CITY’S COORDINATED EFFORTS TO

INCREASE ATTENTION AND RESOURCES ON A RANGE OF SOLUTIONS

INCLUDING INFRASTRUCTURE, SAFETY, ENFORCEMENT AND SAFE

DRIVING AND RIDING EDUCATION
WHEREAS, on Aug. 23, 2022, the Carlsbad City Manager/Director of Emergency Services proclaimed a state of local emergency in response to an alarming increase (233%) in collisionsinvolving bikes and e‐bikes since 2019; and
WHEREAS, the Director of Emergency Services found:

1. Conditions or threatened conditions of extreme peril to the safety of persons and property have arisen within the City of Carlsbad caused by the increased prevalence of e‐bicycles (e‐ bikes), other similar electric or motorized mobility devices, and traditional bicycles on city streets, which has led to increased collisions resulting in injury or death.

2. In 2019 there were 30 collisions involving bicycles or e‐bikes reported in Carlsbad.

3. In 2020 there were 62 collisions involving bicycles or e‐bikes reported in Carlsbad.

4. In 2021 there were 100 collisions involving bicycles or e‐bikes reported in Carlsbad.

5. To date in 2022, 57 collisions involving bicycles or e‐bikes were reported in Carlsbad.

6. U.S. traffic fatalities began climbing in 2020 and the deadly trend is continuing.

7. According to estimates by the National Highway Traffic Safety Administration, U.S. roadway deaths rose 10.5% in 2021 and an additional 7% during the first three months in 2022, the highest number for the first quarter in two decades.

8. The increase in deaths is due to speeding, impaired or distracted driving and other reckless behavior.

9. E‐bikes are faster and heavier than traditional bicycles and e‐bike injuries are more likely to be more severe and require hospitalization than traditional bicycle injuries.

10. E‐bikes and similar electric or motorized mobility devices are increasingly used by school age children to go to and from school and for other activities on local streets.

11. Schools in the Carlsbad Unified School District opened on August 24, 2022, joining the other schools in Carlsbad and additional education facilities in the region that have already Aug. 30, 2022 Item #12 Page 6 of 13
828

opened or will be opening in the coming days, causing increased traffic on local streets and the potential for additional bicycle, e‐bike or other vehicular collisions.

12. To counter the increasing number of bicycle or e‐bike collisions, the Carlsbad Police Department increased enforcement and education efforts and, in April 2022, the city adopted an ordinance regulating mobility devices, including e‐bikes.

13. On June 22, 2022, the Carlsbad Police Department hosted an interagency traffic enforcement day in Carlsbad where 240 traffic citations were issued.

14. Despite these efforts, the city continues to experience e‐bike or bicycle collisions with vehicles, including two fatal collisions occurring within the past 17 days.

15. The city needs to continue these efforts and proactively seek out and implement additional measures to reduce the number of collisions involving bicycles or e‐bikes while also educating the residents of Carlsbad about the dangers of impaired or distracted driving on our local streets and roads.

NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of Carlsbad, California, as follows:

1. That the above recitations are true and correct.

2. The Proclamation of Local Emergency issued by the Director of Emergency Services is ratified (Attachment A) and the City Council adopts the findings and determinations made by the Director of Emergency Services in Support of the Proclamation.

3. The Proclamation of Local Emergency is extended and shall expire on Oct. 22, 2022, at 5 p.m., unless otherwise lawfully extended, or terminated earlier by the City Council.

4. That the Director of Emergency Services, or a designee, is directed and authorized to address any and all impacts and conditions caused by the emergency and to obtain any and all aid and assistance from local, county, state, or federal agencies, including but not limited to aid and assistance pursuant to the California Disaster Assistance Act, California Government Code Section 8690 et. Seq.

5. That the City Manager and Purchasing Officer, as a result of this Resolution ratifying the Proclamation of Local Emergency, are authorized to make purchases of supplies, equipment, or contractual services in the open market at the lowest obtainable price as set forth in and in compliance with Carlsbad Municipal Code Sections 3.28.110 (A) and, where appropriate, 3.28.120.

6. That the Deputy City Manager of Administrative Services is authorized to encumber $2 million from the Fiscal Year 2021‐22 General Fund balance to support the City’s coordinated Aug. 30, 2022 Item #12 Page 7 of 13
829

efforts to increase attention and resources on a range of solutions including infrastructure, safety, enforcement and a focus on safe driving behavior education.

PASSED, APPROVED AND ADOPTED at a Regular Meeting of the City Council of the City of Carlsbad on the __ day of ________, 2022, by the following vote, to wit:

AYES:

NAYS:

ABSENT:
_____________________________________
MATT HALL, Mayor
______________________________________
FAVIOLA MEDINA, City Clerk Services Manager

(SEAL)
Aug. 30, 2022 Item #12 Page 8 of 13
830

PROCLAMATION OF BICYCLE, E-BICYCLE AND

MOTORIZED MOBILITY DEVICE SAFETY LOCAL EMERGENCY

IN THE CITY OF CARLSBAD, CALIFORNIA
WHEREAS, the California Emergency Services Act, including California Government Code Section 8630, and the City of Carlsbad’s Emergency Services Ordinance, including Carlsbad Municipal Code Section 6.04.100(A)(1), empower the City Manager, as the City of Carlsbad’s Director of Emergency Services, to proclaim the existence of a local emergency, subject to ratification by the City Council, when there exists, or there is threatened to exist, conditions of extreme peril to safety of persons and property within the City of Carlsbad.

WHEREAS, the Director of Emergency Services finds:

1. Conditions or threatened conditions of extreme peril to the safety of persons and property have arisen within the City of Carlsbad caused by the increased prevalence of e-bicycles (e-bikes), other similar electric or motorized mobility devices, and traditional bicycles on city streets, which has led to increased collisions resulting in injury or death.

2. In 2019 there were 30 collisions involving bicycles or e-bikes reported in Carlsbad.

3. In 2020 there were 62 collisions involving bicycles or e-bikes reported in Carlsbad.

4. In 2021 there were 100 collisions involving bicycles or e-bikes reported in Carlsbad.

5. To date in 2022, 57 collisions involving bicycles or e-bikes were reported in Carlsbad.

6. U.S. traffic fatalities began climbing in 2020 and the deadly trend is continuing.

7. According to estimates by the National Highway Traffic Safety Administration, U.S. roadway deaths rose 10.5% in 2021 and an additional 7% during the first three months in 2022, the highest number for the first quarter in two decades.

8. The increase in deaths is due to speeding, impaired or distracted driving and other reckless behavior.

9. E-bikes are faster and heavier than traditional bicycles and e-bike injuries are more likely to be more severe and require hospitalization than traditional bicycle injuries.

10. E-bikes and similar electric or motorized mobility devices are increasingly used by school age children to go to and from school and for other activities on local streets.

11. Schools in the Carlsbad Unified School District will be opening on August 24, 2022, joining the other schools in Carlsbad and additional education facilities Attachment A
Aug. 30, 2022 Item #12 Page 9 of 13
831
Aug. 30, 2022 Item #12 Page 10 of 13
832
8/23/22, 1:55 PM Chapter 10.56 OPERATION OF REGULATED MOBILITY DEVICES https://library.qcode.us/lib/carlsbad_ca/pub/municipal_code/item/title_10-chapter_10_56?view=all 1/3 Carlsbad, California Municipal Code
Title 10 VEHICLES AND TRAFFIC
Chapter 10.56 OPERATION OF REGULATED MOBILITY DEVICES

10.56.010 Definitions.

10.56.020 Operation of regulated mobility devices.

10.56.030 Enforcement.

10.56.040 Exemptions.

10.56.050 Severability.

10.56.010 Definitions.
“Bicycle” has the same meaning as in California Vehicle Code Section 231, as it may be amended from time to time.
“Electric bicycle” has the same meaning as in California Vehicle Code Section 312.5, as it may be amended from time to time.
“Electric personal assistive mobility device” has the same meaning as in California Vehicle Code Section 313, as it may be amended from time to time.
“Electrically motorized boards” has the same meaning as in California Vehicle Code Section 313.5, as it may be amended from time to time.
“Low speed vehicle” has the same meaning as in California Vehicle Code Section 385.5, as it may be amended from time to time.
“Motorized scooter” has the same meaning as in California Vehicle Code Section 407.5, as it may be amended from time to time.
“Operator” means a person who owns, operates, and/or controls a regulated mobility device. “Public area” means any outdoor area that is open to the members of the public for public use, whether owned or operated by the city or a private party.
“Regulated mobility device” means a bicycle, electric bicycle, electric personal assistive mobility device, electrically motorized board, low-speed vehicle, motorized scooter, shared mobility device, and any other similar vehicle.

Exhibit 2
Aug. 30, 2022 Item #12 Page 11 of 13
833
8/23/22, 1:55 PM Chapter 10.56 OPERATION OF REGULATED MOBILITY DEVICES https://library.qcode.us/lib/carlsbad_ca/pub/municipal_code/item/title_10-chapter_10_56?view=all 2/3 “Rider” means a traveler riding in or on a regulated mobility device who is not operating it. “Shared mobility device” has the same meaning as in California Civil Code Section 2505, as it may be amended from time to time.
“Vehicle” has the same meaning as in California Vehicle Code Section 670, as it may be amended from time to time. (Ord. CS-419 § 2, 2022)

10.56.020 Operation of regulated mobility devices.

A. Prohibition of Regulated Mobility Devices Where Posted. It is prohibited to operate or ride on a regulated mobility device in public areas where such prohibition is posted by signs or as otherwise set forth in this chapter. A list of public locations where regulated mobility devices are prohibited shall be on file in the city clerk’s office. The list may be amended from time to time by resolution of the city council.

B. No Operating or Riding on Sidewalks and Public Facilities. No person shall operate or ride a regulated mobility device upon any sidewalk, in any public drainage facility, culvert, ditch, channel, or any other public athletic/sports court, or gymnasium in the city.

C. Duty to Operate with Due Care, Reduce Speed.

1. The operator of a regulated mobility device shall exercise all due care and shall reduce the speed of the device, obey all traffic control devices, and take all other action relating to operation of the device as necessary to safeguard the operator, passengers, and any persons or other vehicles or devices in the immediate area. It shall also be unlawful to transport any other person upon the bar, handle bars, floorboard or other area of regulated mobility device not designed for passenger riding or designed for a single person, or cling to or attach oneself or one’s regulated mobility device with an operator or rider on board to any moving vehicle or motorized or non-motorized wheeled device.

2. Persons operating or riding a regulated mobility device on a city trail must dismount the regulated mobility device where the trail width is less than five feet and a pedestrian or equine is within a distance of 50 feet from the regulated mobility device. (Ord. CS-419 § 2, 2022; Ord. CS-139 § 1, 2011; Ord. NS-151 § 1; 1991; Ord. 3062 § 8)

10.56.030 Enforcement.

In lieu of a fine or administrative citation as authorized by this code, and in lieu of filing charges in any court having jurisdiction over a violation, the police chief or designee may allow a violator of this chapter to complete a police department provided safety course for regulated mobility devices. (Ord. CS-419 § 2, 2022; Ord. 3064 § 3; Ord. 3062 § 11)

10.56.040 Exemptions.

Aug. 30, 2022 Item #12 Page 12 of 13
834
8/23/22, 1:55 PM Chapter 10.56 OPERATION OF REGULATED MOBILITY DEVICES https://library.qcode.us/lib/carlsbad_ca/pub/municipal_code/item/title_10-chapter_10_56?view=all 3/3 A. Public Agency Personnel. Notwithstanding any other provision of this chapter, or any other section of this code, city and public agency personnel may operate regulated mobility devices or other vehicles at any place in the city in the performance of their official duties.

B. Disability. This chapter is not intended to apply to or otherwise restrict regulated mobility devices used in a safe manner by physically disabled persons as defined under the Americans with Disabilities Act (42 U.S.C. Section 12101 et seq.). (Ord. CS-419 § 2, 2022)

10.56.050 Severability.

If any portion of this chapter, or its application to particular persons or circumstances, is held to be invalid or unconstitutional by a final decision of a court of competent jurisdiction, the decision will not affect the validity of the remaining portions of this chapter or the application of the chapter to persons or circumstances not similarly situated. (Ord. CS-419 § 2, 2022) Contact:

City Clerk: 442-339-2808
Published by Quality Code Publishing, Seattle, WA. By using this site, you agree to the terms of use.

Aug. 30, 2022 Item #12 Page 13 of 13
835

AGENDA REPORT

CITY OF SAN CLEMENTE
City Council Meeting
910 Calle Negocio
2nd Floor
San Clemente, California
www.san-clemente.org
Meeting Date: 9/20/2022 Agenda Item: C.

Department: City Manager
Prepared By: Jonathan Lightfoot, Economic Development Officer Subject:

EXCLUSIVE NEGOTIATING AGREEMENT (ENA) WITH PACIFIC MEDICAL BUILDINGS (PMB)

REGARDING THE PARCEL AT THE SOUTHWEST CORNER OF AVENIDA VISTA HERMOSA AND

AVENIDA LA PATA
Fiscal Impact:

None. The ENA (Attachment 1) will establish the terms and timeline for negotiation discussions. The City may see future one time or recurring revenues if there is a disposition of the property. However, any disposition action and resulting fiscal impact would occur through a future public hearing of the City Council.

Summary:

The City of San Clemente owns a vacant 2.29 acre parcel (99,750 SF) of commercial land located at the southwest corner of Ave. Vista Hermosa and Ave. La Pata. This property was declared surplus in 2014. An ENA would allow the Council to engage PMB in direct negotiations over potential terms for sale or lease of the property.

Background:

This property, which is a portion of parcel 678-163-01, was declared surplus in 2014 following a comprehensive review of City-owned parcels. It is a rare development opportunity in South Orange County and presents a source of potential new revenue for the City. The property appraised for $4.99 million in 2021, and the City received purchase offers that exceeded that value. The City Council previously declined to enter into an ENA with Cypress Express Partners at its January 18, 2022 meeting. That proposal included a mix of commercial uses including a gas station and quick-service restaurant or beverage use. PMB participated in the same public call for proposals but with a proposal focused on a medical office development.

Discussion:

This ENA establishes a term for negotiation to discuss pricing and terms that may be included within a future Development and Disposition Agreement (DDA) or other similar agreement. The ENA specifically states that it is not a guarantee or commitment to any future agreement, and it is not a commitment to transfer property. Separately, environmental review and entitlements would be required consistent with the City’s standard development review process. That process would include public meetings regarding proposed architecture and landscaping with the City’s Design Review Subcommittee as well as an analysis of operations, traffic, and other issues under the purview of the City’s Planning Commission. Both disposition and entitlement decisions would be considered at a future public hearing.

The ENA clarifies that the City will not pursue negotiations with other parties while the agreement is CITY OF SAN CLEMENTE Page 1 of 3 Printed on 9/15/2022
powered by Legistar™836
Meeting Date: 9/20/2022 Agenda Item: C.

The ENA clarifies that the City will not pursue negotiations with other parties while the agreement is active, a period of three months. This period may be extended by 60 days upon the mutual written agreement of the City Manager and PMB. During the effective period of the agreement, PMB would develop a pro forma and conduct due diligence, such as discussing development standards with City staff.

While the City completed the Surplus Land Act (SLA) requirements in effect during 2014-2015, the SLA procedures have been subsequently amended. The ENA provides a caveat that the agreement will terminate if the City receives notification from the State of California’s Department of Housing and Community Development (HCD) that the City must comply with the more current SLA procedures, including publishing notice of availability and conducting good faith negotiations with affordable housing developers that respond to that notice. The City will seek a written determination from HCD.

Plan and Policy Consistency:

The action is consistent with the following General Plan Goals and Policies:
· Public Services, Facilities, and Utilities Element | Human Services Goal: Continue to be a community with a strong network of public, private, and non-profit human service providers that meet the basic health, safety, and welfare needs of all San Clemente residents. · Policy PSFU-4.04. Monitoring Local Needs. We monitor local needs and report to local service providers to encourage development of programs and facilities that meet the needs of San Clemente residents.
· Land Use Element | Commercial Land Uses Goal: Achieve and maintain a healthy employment base with diverse retail, office, and service uses that: 1) meet citizens’ needs; 2) help generate municipal revenues that improve quality of life; 3) are compatible with adjacent residential neighborhoods; and 4) support the goals and policies of the Economic Development Element. · Policy LU-2.01. Quality. We require that new development protect community character by providing architecture, landscaping and urban design of equal or greater quality than surrounding development, and by respecting the architectural character and scale of adjacent buildings.

In addition, the action is consistent with the 3-2-1 Pension Funding Strategy referenced in the 2022 Long Term Financial Plan, which seeks to reduce the City’s Pension obligations by applying proceeds from disposition of City-owned surplus property.

Council Strategy:

The action is consistent with Council Strategy 1 - Ensure financial stability as demonstrated by low debt, high ratings, and new revenue generation - in that it furthers the City’s opportunity of receiving one time or recurring revenues through the disposition of surplus property.

Recommended Actions:

Staff Recommendation
Staff recommends that the City Council authorize the Interim City Manager to execute an Exclusive Negotiating Agreement with PMB, LLC.

Attachment:

1. Exclusive Negotiating Agreement
CITY OF SAN CLEMENTE Page 2 of 3 Printed on 9/15/2022
powered by Legistar™837
Meeting Date: 9/20/2022 Agenda Item: C.

Notification:

PMB, LLC
CITY OF SAN CLEMENTE Page 3 of 3 Printed on 9/15/2022
powered by Legistar™838
55452.01100\40687105.2

EXCLUSIVE NEGOTIATION AGREEMENT
(City Parcel at SW corner of Avenida La Pata and Avenida Vista Hermosa) THIS EXCLUSIVE NEGOTIATION AGREEMENT (La Pata Parcel), is dated as of September ____, 2022, for reference purposes only (this “Agreement”), and is entered into by and between the City of San Clemente, a public body, corporate and politic (“City”), and PMB LLC, a California limited liability company (“PMB”), to provide a specified period of time to attempt to negotiate a Purchase and Sale Agreement (as defined in Recital D below) between the Parties. City and PMB are sometimes referred to in this Agreement, individually, as a “Party” and, collectively, as the “Parties.” This Agreement is entered into by the Parties with reference to the following recited facts (each, a “Recital”):

RECITALS
A. The City owns certain real property located in the City of San Clemente, California, as more specifically described in Exhibit A attached to this Agreement (“City Parcel”); and
B. The City desires to work with PMB to evaluate and explore the terms under which PMB could acquire and develop the City Parcel in connection with Hoag Memorial Hospital Presbyterian (“Hoag”) with a medical facility consistent with the appropriate general plan and zoning designation or consistent with proposed amendments to the zoning or General Plan designations (the “Project”).

C. PMB desires to explore with the City the possibility of acquiring the City Parcel for purposes of developing the Project.

D. The intent of both City and PMB in entering into this Agreement is to establish a specific, limited period of time for PMB to exclusively negotiate with City regarding an agreement for acquisition, disposition, and development, subject to mutually agreeable terms, conditions, covenants, restrictions and agreements to be negotiated and documented in the future, in the respective sole and absolute discretion of PMB and City (this future agreement is referred to in this Agreement as a “Purchase and Sale Agreement”).

E. In 2014, the City Council previously declared the City Parcel surplus, but the City is uncertain about whether that process exempts negotiations over or the sale of the City Parcel from the Surplus Land Act as codified in Assembly Bill (AB) 1486 (Statutes of 2019, Chapter 664) and AB 1255 (Statutes of 2019, Chapter 661) (Government Code, Title 5, Division 2, Part 1, Chapter 5, Article 8.)
F. During the term of this Agreement, the Parties will consult with the California Department of Housing and Community Development “HCD”) to determine whether (1) the 2014 pre-SLA surplus property process now exempts the terms of a Purchase and Sale Agreement from the SLA or (2) whether the SLA’s surplus property procedures, including notice of availability and non-exclusive good faith negotiations with would-be affordable housing developers, must be satisfied before the Parties continue in their Purchase and Sale Agreement negotiations (“post-SLA”).
839
55452.01100\40687105.2
2 NOW, THEREFORE, in consideration of the mutual covenants, restrictions and conditions contained in this Agreement, and for good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the Parties agree as follows:

TERMS

1. Incorporation of Recitals. The Recitals of fact set forth above are true and correct and are incorporated into this Agreement, in their entirety, by this reference.

2. Term of Agreement.
(a) Effective Date. The rights and duties of City and PMB established by this Agreement shall commence on September 21, 2022 and shall continue in effect until December 20, 2022 or upon the City’s receipt of notice from HCD that the Parties’ negotiations or consummation of a Purchase and Sale Agreement are subject to post-SLA procedures, whichever is earlier (“Negotiation Period”), subject to the provisions of Section 2(b). (b) Extension of Negotiation Period. The Negotiation Period may be extended once for an additional period of sixty (60) days upon the mutual written agreement of City’s city manager or his or her designee and PMB, provided that PMB submits a written request for said extension no later than thirty (30) calendar days prior to the expiration of the Negotiation Period.

If the Negotiation Period is extended pursuant to this Section 2(b), City’s city manager may also modify the deadlines for any remaining actions to be taken by either City or PMB, within such extended Negotiation Period.
(c) Expiration or Termination. Notwithstanding any other term, condition, covenant, restriction or agreement contained in this Agreement, this Agreement shall automatically expire and be of no further force or effect on the earlier to occur of any of the following: (i) the expiration or earlier termination of the Negotiation Period; (ii) entry into a separate Purchase and Sale Agreement by both City and PMB, in their respective sole and absolute discretion; or (iii) the determination by the State of California that this Agreement is not an enforceable or recognized obligation of the City under the SLA or any other provision of law.

3. Obligations of PMB. During the Negotiation Period, PMB and the City shall proceed diligently and in good faith to:
(a) Receive confirmation from HCD that sale of the City Parcel is not subject to further SLA requirements.
(b) Discuss and consider the terms for acquisition of the City Property for the Project.
(c) Discuss and consider conceptual development for the Project describing the Project location and the location and orientation of proposed buildings and additional land use entitlements that the Project may require.
(d) Prepare and consider a financial pro forma for the Project including funds and financing necessary for acquisition of land and improvements for the Project and to include 840
55452.01100\40687105.2
3 considerations of potential tenant limitations that may provide space for local or small business tenants in the Project.
(e) Prepare a proposed time schedule for commencement and completion of the Project.

4. Negotiation of Purchase and Sale Agreement. During the Negotiation Period, PMB shall proceed diligently and in good faith to develop and submit to City all of the documents and information relating to Section 3(b) through (e), above, and both City and PMB shall proceed diligently and in good faith to negotiate and document the potential terms, conditions, covenants, restrictions and agreements of a Purchase and Sale Agreement between them. City and PMB shall generally cooperate with each other and supply such documents and information as may be reasonably requested by the other to facilitate the conduct of the negotiations. Both City and PMB shall exercise reasonable efforts to complete discussions relating to the terms, conditions, covenants, restrictions or agreements of a Purchase and Sale Agreement as may be mutually acceptable to both City and PMB, in their respective sole and absolute discretion. The exact terms and conditions of a Purchase and Sale Agreement, if any, shall be determined during the course of these negotiations. Nothing in this Agreement is intended nor shall be interpreted or construed to be a representation or agreement by either City or PMB that a mutually acceptable Purchase and Sale Agreement will be produced from negotiations under this Agreement. Nothing in this Agreement shall impose any obligation on either Party to agree to a definitive Purchase and Sale Agreement in the future. Nothing in this Agreement is intended or shall be interpreted or construed to be an agreement by the City to contribute City Funds to the Project.

5. No Guarantee of Future Agreement. Nothing in this Agreement shall be interpreted or construed to be a guaranty, warranty or representation that any proposed Purchase and Sale Agreement that may be negotiated by City representatives and PMB will be subsequently approved by the City Council. PMB acknowledges and agrees that the City Council’s consideration of any future Purchase and Sale Agreement is subject to the independent and reserved sole and absolute discretion of the City Council and any and all legally required public hearings, public meetings, notices, factual findings and other determination or activities required by law.

6. No City Commitment to Transfer Property. Nothing in this Agreement is intended to be an express or implied commitment by City to provide financing and/or City Funds, provide City staff time or other resources or take any other action regarding the transfer of any property or financial resources for the Project or otherwise.

7. Restrictions Against Change in Ownership, Management and Control of PMB and Assignment of Agreement.
(a) City Reliance on PMB Qualifications. The qualifications and identity of PMB and PMB’s principals are of particular concern to City. PMB’s qualifications and identity are the reason that City has entered into this Agreement with PMB. During the Negotiation Period, no voluntary or involuntary successor-in-interest of PMB shall acquire any rights or powers under this Agreement, except as expressly provided in Section 7(c). 841
55452.01100\40687105.2
4 (b) Notice to City of Organizational Changes. PMB shall promptly notify City in writing of any and all changes whatsoever in the identity of the business entities or individuals either comprising or in Control (as defined in Section 7(d)) of PMB, as well as any and all changes in the interest or the degree of Control of PMB by any such person, of which PMB or any of PMB’s shareholders, partners, members, directors, managers or officers are notified or may otherwise have knowledge or information. Upon the occurrence of any significant or material change (more than 10%), whether voluntary or involuntary, in ownership, management or Control of PMB (other than such changes occasioned by the death or incapacity of any individual) that has not been approved by City, prior to the time of such change, City shall have the right, in City’s sole and absolute discretion, to terminate this Agreement, without liability to PMB or any other person, by sending written notice of termination to PMB, referencing this Section 7(b). (c) PMB Assignment. PMB may only assign PMB’s rights under this Agreement to an Affiliate (as defined in Section 7(d)), subject to all of the following conditions:
(1) such Affiliate expressly assumes all of the obligations of PMB under this Agreement in a written assumption agreement reasonably satisfactory to City; and (2) PMB, shall, at all times, Control any such Affiliate. Notwithstanding any assignment of this Agreement, PMB shall, at all times, be responsible and obligated directly to City for performance of PMB’s obligations under this Agreement.
(d) Definitions of “Affiliate” and “Control.” For the purposes of this Agreement, the term “Affiliate” means any person, directly or indirectly, Controlling or Controlled by or under common Control with PMB, whether by direct or indirect ownership of equity interests, by contract, or otherwise. For the purposes of this agreement, “Control” means possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of an entity, whether by ownership of equity interests, by contract, or otherwise.

8. City Not To Negotiate With Others. During the Negotiation Period, the City Council and City staff shall not negotiate with any other person regarding the disposition of the City Property. The term “negotiate,” as used in this Agreement, means and refers to engaging in any discussions with a person other than PMB, regardless of how initiated, with respect to that person’s development or acquisition of the City Property to the total or partial exclusion of PMB from developing the City Property, without PMB’s written consent, subject to the other provisions of this Section 8. Notwithstanding the preceding provisions of this Section 8, City shall have the right to receive and retain unsolicited offers regarding development of the Property from persons other than PMB, but shall not negotiate with the proponent of any such offer during the Negotiation Period. Nothing in this Agreement shall prevent or prohibit City from discussing or disclosing the fact that City is a Party to this Agreement. Notwithstanding any other provision of this Section 8 or this Agreement, implementation of City’s development plans, City Properties, and/or use of available funding shall be and remain in the sole and exclusive purview and discretion of City. Nothing in this Agreement shall limit, prevent, restrict or inhibit City from providing any information in City’s possession or control that would customarily be furnished to persons requesting information from City concerning City’s activities, goals or matters of a similar nature as required by law to be disclosed, upon request or otherwise. If City, in its reasonable discretion, determines that the Parties are unlikely to arrive at mutually satisfactory terms, conditions, covenant, restrictions and agreements by the expiration of this Agreement, the City may, but shall not be obligated to, enter into negotiations with alternative 842
55452.01100\40687105.2
5 bidders or go out to bid again for the Subject Property with the option of modifying any terms or conditions for the bidding instructions. The submittal date for any recirculated Request for Bids shall not be during the Term of this Agreement. Additionally, the Request for Bids shall not reveal any confidential information received by City as a result of this Agreement.

9. Acknowledgments and Reservations.
(a) No Project Commitment. City and PMB agree that, if this Agreement expires or is terminated for any reason, or a Purchase and Sale Agreement is not approved and signed by both City and PMB, for any reason, neither City nor PMB shall be under any obligation, nor have any liability to each other or any other person regarding City Parcel or development thereon.
(b) No City Offer or Acceptance. PMB acknowledges and agrees that no provision of this Agreement shall be deemed to be an offer by City, nor an acceptance by City of any offer or proposal from PMB, for City to convey or receive any estate or interest in the City Parcel.
(c) No Conveyance. PMB acknowledges and agrees that PMB has not acquired, nor will acquire, by virtue of the terms of this Agreement, any legal or equitable interest in any real or personal property from City.
(d) Development Standards. Certain development standards and design controls for the Project may be established between PMB and City, but City and PMB understand and agree that the Project and the development of the Property must conform to all City of San Clemente and other applicable governmental development, land use and architectural regulations and standards. Drawings, plans and specifications for the Project shall be subject to the approval of the City of San Clemente, through the standard development application and design review processes for similar projects. Nothing in this Agreement shall be considered approval of any plans or specifications for the Project or of the Project itself by City or by state or federal licensing or regulatory agencies. The Parties enter into this Agreement further acknowledging and intending that a complete and definitive Purchase and Sale Agreement may not be entered into between them, if at all, prior to review of the Project in accordance with CEQA. (e) No City Approval. Nothing in this Agreement, nor any comments provided by City staff, nor any failure of City staff to provide comments to any submittal under or pursuant to this Agreement shall: (i) modify or replace any land use entitlement process of City applicable to the Project; (ii) limit the police power land use jurisdiction of City relative to the Project; (iii) constitute an approval of all or any portion of the Project by the City pursuant to the police power land use jurisdiction of City; or (iv) constitute any approval of all or any portion of a Purchase and Sale Agreement with PMB by City.
(f) City Due Diligence. City reserves the right to reasonably obtain further information, data and commitments to ascertain the ability and capacity of PMB to purchase, develop or operate the Property or the Project. PMB acknowledges that PMB may be requested to make certain financial disclosures to City, City staff, City’s legal counsel or other City retained consultants, as part of the financial due diligence investigations of City relating to the potential 843
55452.01100\40687105.2
6 sale and development of the City Property by PMB and that any such disclosures may become public records. City shall maintain the confidentiality of financial information of PMB to the extent allowed by law, as determined by the City’s legal counsel. (g) Required City Approval. PMB expressly acknowledges and agrees that City will not be bound by any statement, promise or representation made by City staff or representatives during the course of negotiations of a Purchase and Sale Agreement and that City shall only be legally bound upon the approval of a complete Purchase and Sale Agreement in the future by the City governing board, in its sole and absolute discretion, in accordance with law. (h) No Intent to be Bound. Further efforts by either Party to perform due diligence, arrange or obtain financing or carry out other acts in contemplation of the possible acquisition of the City Parcel shall not be deemed evidence of intent by either Party to be bound by any terms, conditions, covenants, restrictions or agreements relating to acquisition or development of the Property.

10. Default; Breach; Remedy.
(a) Default. Failure or delay by either Party to perform any material term, provision, obligation or agreement or observe any restriction, condition or covenant set forth in this Agreement shall constitute a “Default” under this Agreement. If the Party that is claimed to be in Default by the other Party cures, corrects or remedies the alleged Default within fifteen (15) calendar days after receipt of written notice from the other Party specifying such Default, such Party shall not be in Default under this Agreement. The notice and cure period provided in the immediately preceding sentence shall not, under any circumstances, extend the Negotiation Period. If notice of an alleged Default is given with fifteen (15) or fewer calendar days remaining in the Negotiation Period, this Agreement shall automatically terminate on the date of such notice, without further notice to or action by either Party, and the Party alleged to have been in Default shall be deemed to have cured such Default on the termination of this Agreement. The Party claiming that a Default has occurred shall give written notice of Default to the Party claimed to be in Default, specifying the alleged Default. Delay in giving such notice shall not constitute a waiver of any Default nor shall it change the time of Default. However, the injured Party shall have no right to exercise any remedy for a Default under this Agreement, without first delivering written notice of the Default.
(b) Breach; Termination. If a Default of either Party remains uncured for more than fifteen (15) calendar days following such Party’s receipt of written notice of such Default, a “Breach” of this Agreement by the Defaulting Party shall have occurred, except as otherwise provided in Section 10(a) during the last fifteen (15) calendar days of the Negotiation Period. In the event of a Breach of this Agreement, the sole and exclusive remedy of the Party who is not in Breach shall be to terminate this Agreement by serving written notice of termination on the Party in Breach.
(c) No Waiver. Any failure or delay by a Party in asserting any of such Party’s rights or remedies as to any Default or Breach shall not operate as a waiver of any Default or Breach or of any rights or remedies associated with a Default or Breach. 844
55452.01100\40687105.2
7 11. Compliance with Law. PMB acknowledges that any Purchase and Sale Agreement, if approved by the City Council, will require PMB (among other things) to carry out the development of the Project in conformity with all applicable laws, including all applicable building, planning and zoning laws, environmental laws, safety laws and labor and wage laws.

12. Notice. All notices required under this Agreement may be provided by email but, if provided by email shall also be presented in person, by nationally recognized overnight (one business day) delivery service (i.e., Federal Express, United Parcel Service, etc.) or by first class United States mail, with postage prepaid, to the address for the Party set forth in this Section 12.

Notice shall be deemed received by United States Postal Service delivery as of the third (3rd) business day after deposit with the United States Postal Service, addressed as required by this Section 12. Notice by personal service shall be effective on delivery. Notice by nationally recognized overnight delivery service shall be effective upon the earlier of: (a) delivery; or (b) the date of the second attempt to deliver such notice, as set forth in the written records of the delivery service. Either Party may change its address for receipt of notices by notifying the other Party in writing. Rejection, other refusal to accept or the inability to deliver a notice because of a changed address of which no notice was given or other action by the Party to whom the notice is transmitted, shall be deemed receipt of the notice. An attorney representing a Party may give notice on behalf of such Party.

To PMB: PMB LLC
3394 Carmel Mountain Road
Suite 200
San Diego, CA 92121
Attention: Jake Rohe
To City: City of San Clemente
ATTN: City Manager
910 Calle Negocio
San Clemente, CA 92673

13. Warranty Against Payment of Consideration for Agreement. PMB represents and warrants that: (a) PMB has not employed or retained any person to solicit or secure this Agreement upon an agreement or understanding for a commission, percentage, brokerage, or contingent fee, excepting bona fide employees of PMB and third persons to whom fees are paid for professional services related to planning, design or construction of the Project or documentation of this Agreement; and (b) no gratuities, in the form of entertainment, gifts or otherwise have been or will be given by PMB or any of PMB’s agents, employees or representatives to any elected or appointed official or employee of City in an attempt to secure this Agreement or favorable terms or conditions for this Agreement. Breach of the representations or warranties of this Section 13 shall entitle City to terminate this Agreement on two (2) days’ notice to PMB.

14. Counterpart Originals. This Agreement may be signed by City and PMB in multiple counterpart originals, each of which shall constitute an original and all of which together shall constitute a single agreement.
845
55452.01100\40687105.2
8 15. No Third-Party Beneficiaries. Nothing in this Agreement is intended to benefit any person other than the City or PMB.

16. Governing Law. City and PMB acknowledge and agree that this Agreement was negotiated, entered into and is to be fully performed in the City of San Clemente, California.

City and PMB agree that this Agreement shall be governed by, interpreted under, and construed and enforced in accordance with the substantive and procedural laws of the State of California, without application of conflicts or choice of laws principles.

17. Waivers. No waiver of any Breach or Default of any term or condition contained in this Agreement shall be deemed a waiver of any preceding or succeeding Breach or Default of such term or condition, or of any other term or condition contained in this Agreement. No extension of the time for performance of any obligation or act, no waiver of any term or condition of this Agreement, nor any modification of this Agreement shall be enforceable against City or PMB, unless made in writing and signed by the Party against whom such extension, waiver or modification is sought to be enforced.
[Signatures on the following page]
846
55452.01100\40687105.2
9 SIGNATURE PAGE
TO

EXCLUSIVE NEGOTIATION AGREEMENT
(City Parcel at SW corner of Avenida La Pata and Avenida Vista Hermosa) IN WITNESS WHEREOF, City and PMB have signed and entered into this Exclusive Negotiation Agreement by and through the signatures of their authorized representative(s) set forth below:

City:

CITY OF SAN CLEMENTE, a public body,
corporate and politic
By:______________________________
Interim City Manager
ATTEST:

By: ____________________________
City Clerk / Legislative Administrator
APPROVED AS TO FORM:

Best Best & Krieger LLP
By: ___________________________
City Attorney
PMB:

PMB LLC,
a California limited liability company
By:

Name:

Its:
847
55452.01100\40687105.2
Exhibit A
EXHIBIT “A”
TO

EXCLUSIVE NEGOTIATION AGREEMENT
(City Parcel at SW corner of Avenida La Pata and Avenida Vista Hermosa) Property Identification
The subject property consists of a ±2.29 acre portion of an 80.73 acre City-owned parcel of land, identified as Assessor’s Parcel Number 678-163-01. The subject property is proposed to be subdivided from the larger parcel and sold. The subject property is zoned Neighborhood Commercial by the City of San Clemente.

Property Legal Description
The subject site, as proposed, would comprise a portion of Township 8 Range 7 Section 21 Portion of Section; and Township 8 Range 7 Section 15, Portion of Section; Township 8 Range 7 Section 16 Portion of Section; and Township 8 Range 7 Section 22 Portion of Section; and Tract Number 11959 Portion of Lots 31, 32,38,39,40 & 50, City of San Clemente, County of Orange, State of California.
848