60989654.v1
September 15, 2022
Scott Smith
City of San Clemente, City Attorney
c/o Best Best & Krieger
Attorneys at Law
18101 Von Karman Ave., Ste. 1000
Irvine, CA 92612
Re: MemorialCare Project – MP22-089 – Waiver or Reduction of Parking Ratio Dear Mr. Smith:
City Staff recently asked if state law required waiving or reducing the City’s parking ratio to the extent application of that requirement would physically preclude construction of MemorialCare’s project. The answer is yes.
The City’s parking ratio is a development standard under California’s Density Bonus Law, Government Code §§ 65915-65918. Specifically, a development standard is defined to include “a site or construction condition, including, but not limited to, a height limitation, a setback requirement, a floor area ratio, an onsite open-space requirement, or a parking ratio that applies to a residential development . . . , or other local condition, law, policy, resolution, or regulation.” (Gov. Code, § 65915, subd. (o)(1), underlining added.) Government Code section 65915, subdivision (e)(1), states that “[i]n no case may a city . . . apply any development standard that will have the effect of physically precluding the construction of a development meeting the criteria of subdivision (b) at the densities or with the concessions or incentives permitted by this section.” MemorialCare’s project meets the criteria of subdivision (b). (See, e.g., Gov. Code, § 65915, subd. (b)(1)(C) [“A senior citizen housing development, as defined in Sections 51.3 and 51.12 of the Civil Code”].)
Thus, because application of the City’s parking ratio would preclude construction of MemorialCare’s project as presently designed, it must be reduced or waived. (Bankers Hill 150 v. City of San Diego (2022) 74 Cal.App.5th 755, 774 [developer “was entitled under the Density Bonus Law to a waiver of any development standard that would have the effect of physically precluding the construction of the Project at the permitted density and with the requested incentive”]; Wollmer v. City of Berkeley (2011) 193 Cal.App.4th 1329, 1346-1347 [city required to waive standards for height, number of stories and setbacks, and grant variances to allow an additional story and a higher building height, because otherwise construction of a housing development meeting the requirements for a density bonus would’ve been physically precluded].)
ATTORNEYS AT LAW
18101 Von Karman Avenue
Suite 1800
Irvine, CA 92612
T 949.833.7800
F 949.833.7878
Gregory W. Sanders
D 949.477.7669
[email protected]
VIA EMAIL Refer To File # 504163.0001
ATTACHMENT 8
Scott Smith
September 15, 2022
60989654.v1
If you think it would be helpful, I am happy to schedule a call to discuss these issues further. Please just let me know your availability.
Very truly yours,
Gregory W. Sanders
Nossaman LLP
GWS:
ATTACHMENT 24