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Agreement No. 210015B with LSCE and a cost estimate for the performance of such work has been prepared. Installation will involve allowing drill rigs and other vehicles to access parcel property for well completion. Once installed, initial frequent visits will be made to install self-contained water level data loggers, then subsequent monthly to semiannual visits will be made to retrieve data and maintain operations; and
WHEREAS, the NCGSA is pursuing a permanent easement agreement with the Saint Helena Public Cemetery Association for the purpose of a public right of way to access said County-owned parcel for the purpose of installing and maintaining the monitoring wells; and WHEREAS, the NCGSA has conducted the necessary review of the Project pursuant to the California Environmental Quality Act ("CEQA"); and
WHEREAS, the Parties wish to enter into this Agreement in order to set forth necessary cooperative procedures describing the sharing of well installation costs; TERMS
NOW, THEREFORE, said CITY and said NCGSA for the considerations hereinafter set forth, mutually agree as follows:
1. Term of the Agreement. The term of this Agreement shall commence on the date first above written and shall expire on June 30, 2024, except that the obligations of the parties under Paragraphs 6 (Hold Harmless / Defense / Indemnification) shall continue in full force and effect after said expiration date as to the liability for acts and omissions occurring during the term of this Agreement. In addition, the obligations of CITY to NCGSA under Paragraph 11 (Access to Records/Retention) shall also survive said expiration date.
2. Scope of Services. NCGSA shall be responsible for the installation and maintenance of the dual completion wells as set forth in Exhibit “A” and according to the estimate of cost set forth in Exhibit “B”, attached hereto, which are incorporated herein by this reference.
3. Compensation. The maximum amount CITY shall pay NCGSA shall be THIRTY THOUSAND DOLLARS ($30,000) for professional services; provided, however, that such amounts shall not be construed as guaranteed sums, and compensation shall be based upon services actually rendered.
4. Method of Payment.
(a) Professional Services. All payments for compensation shall be made only upon presentation by NCGSA to CITY of an itemized billing invoice in a form acceptable to the NCGSA Auditor which indicates, at a minimum, CITY's name, address, Social Security or Taxpayer Identification Number, a detailed description of the tasks completed during the billing period. (b) Expenses. RESERVED
(c) Fixed Price. The Agreement is for a fixed price and no interim invoices will be presented.
5. Hold Harmless/Defense/Indemnification. To the full extent permitted by law, NCGSA and City shall each defend, indemnify and hold harmless each other as well as their respective officers, agents and employees from any claims, suits, proceedings, loss or liability, including Agenda Item #9.11.
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reasonable attorney's fees, for personal injury (including death) or damage to property, arising out of or connected with any acts or omissions of that party or its officers, agents, employees, volunteers, contractors or subcontractors when performing any activities or obligations required of that party under this Agreement. Each party shall notify the other party immediately in writing of any claim or damage related to activities performed under this Agreement. The parties shall cooperate with each other in the investigation and disposition of any claim arising out of the activities under this Agreement, providing that nothing shall require either party to disclose any documents, records or communications that are protected under peer review privilege, attorney-client privilege, or attorney work product privilege.
6. Insurance. NCGSA shall require that Clear Heart Drilling, Inc., the contractor hired to complete the installation of the dual completion wells (the “Contractor”), shall for the duration of the contract insurance against claims for injuries to persons or damages to property which may arise from or in connection with the performance of the services hereunder by the Contractor, as indicated:
A. Minimum Scope of Insurance. Coverage shall be at least as broad as:
1. Insurance Services Office Commercial General Liability coverage (occurrence form CG 0001).
2. Workers’ Compensation insurance as required by the State of California and Employer’s Liability Insurance.
B. Minimum Limits of Insurance. Consultant shall maintain limits no less than:
1. General Liability: $1,000,000 per occurrence for bodily injury, personal injury and property damage including operations, products and completed operations, as applicable. If Commercial General Liability Insurance or other form with a General Liability Insurance or other form with a general aggregate limit is used, either the general aggregate limit shall apply separately to this project/location or the general aggregate limit shall be twice the required occurrence limit.
2. Employer’s Liability: $1,000,000 per accident for bodily injury or disease.
The City, its agent, officers, officials, employees, and volunteers are to be covered under the Contractor’s insurance as set forth herein as additional insured as respects liability arising out of work or operations performed by the Consultant.
7. No Waiver. The waiver by either party of any breach or violation of any requirement of this Agreement shall not be deemed to be a waiver of any such breach in the future, or of the breach of any other requirement of this Agreement.
8. Notices. All notices required or authorized by this Agreement shall be in writing and shall be delivered in person or by deposit in the United States mail, by certified mail, postage prepaid, return receipt requested. Any mailed notice, demand, request, consent, approval or communication that either party desires to give the other party shall be addressed to the other party at the address set forth below. Either party may change its address by notifying the other party of the change of address. Any notice sent by mail in the manner prescribed by this paragraph shall be deemed to have been received on the date noted on the return receipt or five days following the date of deposit, whichever is earlier.
NCGSA CITY
Director of PBES City Manager
1195 Third Street Rm. 201 1088 College Avenue
Napa, CA 94559 St. Helena, CA 94574
Agenda Item #9.11.
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9. Interpretation; Venue.
(a) Interpretation. The headings used herein are for reference only. The terms of the Agreement are set out in the text under the headings. This Agreement shall be governed by the laws of the State of California without regard to the choice of law or conflicts. (b) Venue. This Agreement is made in Napa County, California. The venue for any legal action in state court filed by either party to this Agreement for the purpose of interpreting or enforcing any provision of this Agreement shall be in the Superior Court of California, County of Napa, a unified court. The venue for any legal action in federal court filed by either party to this Agreement for the purpose of interpreting or enforcing any provision of this Agreement lying within the jurisdiction of the federal courts shall be the Northern District of California. The appropriate venue for arbitration, mediation or similar legal proceedings under this Agreement shall be Napa County, California; however, nothing in this sentence shall obligate either party to submit to mediation or arbitration any dispute arising under this Agreement.
10. Taxes. Both parties agree to file federal and state tax returns or applicable withholding documents and to pay all applicable taxes or make all required withholdings on amounts paid pursuant to this Agreement and shall be solely liable and responsible to make such withholdings and/or pay such taxes and other obligations including, without limitation, state and federal income and FICA taxes. Each party agrees to indemnify and hold the other harmless from any liability it may incur to the United States or the State of California as a consequence of the other party’s failure to pay or withhold, when due, all such taxes and obligations. In the event that either party is audited for compliance regarding any withholding or other applicable taxes or amounts, the other party agrees to furnish the party being audited with proof of payment of taxes or withholdings on those earnings.
11. Access to Records/Retention. NCGSA and the CITY or the duly authorized representatives of any of the above, shall have access to any books, documents, papers and records of NCGSA which are directly pertinent to the subject matter of this Agreement for the purpose of making audit, examination, excerpts and transcriptions. Except where longer retention is required by any federal or state law, NCGSA shall maintain all required records for at least five (5) years after CITY makes final payment for any work authorized hereunder and all pending matters are closed, whichever is later.
12. Authority to Contract. NCGSA and CITY each warrant hereby that they are legally permitted and otherwise have the authority to enter into and perform this Agreement.
13. Independent Contractor. The parties intend that NCGSA, in performing the obligations specified herein, shall act as an independent contractor and shall have control of the work and the manner in which it is performed. CITY and its employees, agents, and volunteers are not to be considered agents or employees of NCGSA and are not entitled to participate in any pension plan, insurance, bonus or similar benefits NCGSA provides to its employees.
14. Compliance with Law. NCGSA shall comply with all applicable federal, state and local laws, rules and regulations affecting NCGSA and its work hereunder. NCGSA represents and warrants to CITY that NCGSA has all licenses, permits, qualifications and approvals of whatsoever nature which are legally required for NCGSA to do the work hereunder or, if the work is subcontracted, that such subcontractor has all such licenses, permits, qualifications and approvals.
NCGSA represents and warrants to CITY that NCGSA shall, at its sole cost and expense, keep in Agenda Item #9.11.
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effect at all times during the term of this Agreement any licenses, permits, and approvals which are legally required for NCGSA to do the work contemplated by this Agreement or, if the work is subcontracted, that NCGSA shall be responsible for ensuring that such subcontractor keeps in effect all such licenses, permits, and approvals.
15. Third Party Beneficiaries. Nothing contained in this Agreement shall be construed to create any rights in third parties and the parties do not intend to create such rights.
16. Attorney's Fees. In the event that either party commences legal action of any kind or character to either enforce the provisions of this Agreement or to obtain damages for breach thereof, the prevailing party in such litigation shall be entitled to all costs and reasonable attorney's fees incurred in connection with such action.
17. Severability. If any provision of this Agreement, or any portion thereof, is found by any court of competent jurisdiction to be unenforceable or invalid for any reason, such provision shall be severable and shall not in any way impair the enforceability of any other provision of this Agreement.
18. Amendment of Agreement. This agreement may be amended at any time by mutual agreement. Any amendment shall be in writing and signed by both parties.
19. Entirety of Contract. This Agreement constitutes the entire agreement between the parties relating to the subject of this Agreement and supersedes all previous agreements, promises, representations, understandings and negotiations, whether written or oral, among the parties with respect to the subject matter hereof.
20. Counterparts. This Agreement may be executed in counterparts, which when taken together, shall constitute a single signed original as though all parties had executed the same page.
IN WITNESS WHEREOF, this Agreement was executed by the parties hereto as of the date first above written.
CITY OF ST. HELENA
By
PAUL DOHRING, Mayor
"CITY"
[remainder of page intentionally blank]
Agenda Item #9.11.
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NAPA COUNTY GROUNDWATER SUSTAINABILITY
AGENCY
By
BELIA RAMOS, Chair
Board of Directors
"NCGSA"
APPROVED AS TO FORM
Office of NCGSA Counsel
By: Chris R.Y. Apallas
NCGSA Counsel
Date: September 5, 2023
APPROVED BY THE NAPA
COUNTY GROUNDWATER
SUSTAINABILITY AGENCY
BOARD OF DIRECTORS
Date: _______________________
Processed By:
Deputy Clerk of the Board
ATTEST: NEHA HOSKINS
Clerk of the Board of Directors
By:___________________
Approved as to form:
________________________
Ethan Walsh, City Attorney
Agenda Item #9.11.
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EXHIBIT “A”
PROPOSED SCOPE OF WORK and TECHNICAL PROVISIONS FOR MONITORING WELLS
1.1 GENERAL REQUIREMENTS
1.1.1 SCOPE OF WORK
A. Purpose - One dual-completion monitoring well (for a total of two individual wells co-located in the same boring) is to be constructed at one (1) site (APN 009- 392-045-000) owned by Napa County and located in the city limits of City of St.
Helena, California. The monitoring wells will be used to sample and monitor groundwater quality and groundwater depth.
B. Test Hole Drilling and Monitoring Well Construction
1. The Work to be completed under this Contract will consist of furnishing all materials, labor, equipment, fuel, tools, transportation and services for the drilling and sampling of test holes at the selected site. The test holes shall be converted to permanent monitoring wells.
2. One test hole shall be drilled to an approximate depth of 100 feet below ground surface. The actual depth of each test hole will be determined by the Engineer based on the lithology encountered.
3. Continuous cored samples will be collected from within each test hole from ground surface to the total depth of the borehole. Cores and drill cuttings of the formations encountered will be collected and a driller’s log will be prepared to define the encountered lithology.
4. Test hole will be drilled utilizing the auger method. The diameter of the bore holes shall be a minimum of 10-inches.
5. Well casing and screens shall be constructed of 2-inch, Schedule 40, F480-88A PVC pipe and 2.5-inch, Schedule 40, F480-88A PVC pipe. Each dual-completion monitoring well shall be constructed with one 2-inch and one 2.5-inch casing string.
6. All cuttings and any drilling waste shall be contained. The Contractor shall take ownership and lawfully dispose of the waste. Napa County will provide a central location for cuttings disposal subject to verification that the cuttings are free of contamination.
C. Preliminary Monitoring Well Design
1. A preliminary monitoring well design is depicted in the Plans.
2. A graded gravel envelope will be placed in the annulus between the well casing and the borehole wall from the bottom of the borehole to the Agenda Item #9.11.
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level specified in the final well design. A 5-foot thick bentonite seal will be placed between the two piezometers at a depth specified in the final well design. A one-foot transition seal of fine sand will be placed on top of the graded gravel envelope. A sanitary/annular seal consisting of neat cement shall be placed on top of the transition sand and extend to the ground surface.
D. Local and State Standards
All drilling and well construction activities shall comply with local and State standards. If a conflict arises between the Technical Provisions and regulatory requirements, the Contractor shall immediately notify the Engineer and not proceed until the Engineer resolves the conflict.
1. It is the Contractor’s sole responsibility to procure, pay for, and satisfy all well, encroachment, and construction related permits.
1.1.2 LOCATION AND LOCAL CONDITIONS
1. The project site is located within the city limits of City of St. Helena, CA.
2. The geology in the project area consists of interbedded clays, silts, sandy clays, sands, gravels, and possible cobbles.
1.2 MATERIALS
1.2.1 CERTIFICATES OF COMPLIANCE
The Contractor shall provide certificates of compliance as specified herein.
A. Items Requiring a Certificate of Compliance
1. The Contractor shall submit to the Engineer for approval, certificates of compliance for the following materials:
a) Cement Grout Sealing Material
b) Blank Well Casing
c) Well Screen
d) Gravel Envelope Material
2. No material shall be incorporated into the Work until certificates of compliance have been approved by the Engineer.
B. Content of Certificates of Compliance
1. Certificates of compliance from the Contractor, suppliers, and/or manufacturers, shall clearly indicate that the material to be delivered to the job site will meet all requirements of the project Technical Provisions. A certificate of compliance shall include, but not be limited to the project title, delivery location, date (or approximate date) of delivery, name of the Agenda Item #9.11.
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material with appropriate classification or model numbers, quantity, name of the manufacturers, statement of compliance with all requirements of the Technical Provisions, and the name, title and signature of the certifying agent.
2. A factory or mill certification (laboratory test report) shall be submitted with the certificates of compliance for all components of the casing assembly. The factory or mill certification shall not be a substitute for the certificate of compliance, unless it contains all information required for a certificate of compliance as described above.
3. Insufficient, incomplete, or unclear certificates will be rejected and the Contractor shall be responsible for all delays caused by any need for resubmittal.
C. New Materials - All materials provided by the Contractor shall be new.
1.2.2 MATERIALS SPECIFICATIONS
A. Sealing Material - Sealing material, consisting of neat cement shall be employed for surface/annular sealing of the wells and abandonment purposes if required.
1. The sealing material shall be composed of one 94-pound sack of Portland cement and approximately 5-6 gallons of clean water.
B. Well Casing and Screen Material
1. The PVC well casing and well screen for the monitoring wells will be made of ASTM F480-88A Schedule 40 PVC. The ends of each joint shall be threaded and coupled with O-ring seals. The blank casing will be 2-inch Schedule 40 PVC, ASTM F480-88A, and 2.5-inch Schedule 40 PVC, ASTM F480-88A. The well screen shall be fabricated from the same material as the blank casing. The perforations shall be machine cut horizontal slots, with openings of 0.030-inch.
2. The bottom of each PVC casing assembly shall be furnished with PVC threaded end of the same schedule and size as the casing and the same specifications as described herein.
C. Gravel Envelope - The sand used for the gravel envelope shall be hard, waterworn, and washed clean of silt, fine sand, dirt, and foreign matter (crushed gravel will not be accepted). It shall be well rounded and graded. The gravel envelope material is specified to be #8 SRI sand or approved equal. Alternative materials are subject to the approval of the Engineer. A description and sieve analysis of gravel packing materials to be delivered to the site must be submitted prior to the use of the material in the Work. The gravel, if stockpiled at the well site, shall be protected and kept free of foreign matter.
Agenda Item #9.11.
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D. Transition Sand Seal - The sand used for the transition sand seal will be #30 mesh sand. The transition sand shall be delivered to the site in 50 pound sacks.
1.3 TEST HOLE DRILLING AND MONITORING WELL CONSTRUCTION
1.3.1 MOBILIZATION
A. General
1. Mobilization shall include acquisition of the necessary drilling and well construction permits; transportation of personnel, equipment, and operating supplies to and from the sites, establishment of portable sanitary facilities, preparing a work site sufficient to support equipment and personnel in a safe and workman-like manner, and other preparatory work at the site required by the Contractor for his/her operations.
2. The Contractor shall be responsible for ensuring that all the conditions of the drilling and well construction permits are met and that all required notifications are made in a timely manner as required.
3. The Contractor shall mark each drilling location and arrange for underground utility surveys. Work at a site cannot commence until the site is cleared of underground utilities.
4. The Contractor shall provide the appropriate auger drilling rig to complete the test holes/monitoring wells as specified in the plans and for the particular site conditions. The Contractor shall also provide all tools, accessories, power, fuel, materials, supplies, and lighting necessary to conduct efficient drilling operations. The drilling unit shall be in good condition and of sufficient capacity to perform the specified drilling and well construction.
5. The County of Napa will provide a central location where the drilling rig may be stored overnight provided the Contractor will use the drilling rig on the next working day for well construction for the project.
1.3.2 TEST HOLE DRILLING
A. Scope - The test hole shall be drilled using the hollow stem auger method. The diameter of the borehole shall be a minimum of 10- inches. The final depth of the test hole will depend on location and the lithology encountered while drilling and will be determined by the Engineer. It is anticipated that the test hole will be drilled to an approximate depth of 100 feet below ground surface.
B. Methods
1. The test hole shall be drilled using the hollow stem auger drilling method of construction.
Agenda Item #9.11.
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2. The drilling operations shall be conducted using equipment that is adequate to reach the depth and perform the evaluations specified in the Technical Provisions. If, in the opinion of the Engineer, the Contractor's equipment is not capable of satisfactorily performing the specified work, the Contractor, at his/her own expense, shall substitute equipment satisfactory to the Engineer.
3. The Contractor shall keep records providing the following information:
a) A record of construction activities for each shift.
b) All measurements for depths shall be referenced to the existing ground surface at the well site.
4. During the drilling of the test hole, the Contractor shall collect continuous core samples using the split barrel sample collection procedure as outlined in ASTM D1586-11L: Standard Test Method for Standard Penetration Test (SPT) and Split-Barrel Sampling of Soils, or an equal method approved by the Engineer. The Contractor shall deliver samples to the Engineer.
1.3.3 WELL CASING AND SCREEN
A. Scope - This item shall consist of furnishing and installing blank casing and well screen as specified in the Engineer’s final design.
B. Methods
1. With the drilling string still in the borehole, the casing assembly shall be installed within the inside of the drill pipe in accordance with the final well design for casing installation furnished by the Engineer. Care shall be taken to ensure that the casing is centered within the drill pipe.
2. The casing assembly shall be installed to the specified depth supported above the ground surface. The casing shall be capped to ensure that foreign particles are prevented from entering the casing.
3. If, for any reason, the casing cannot be landed in the correct position or at a depth acceptable to the Engineer, the Contractor shall remove the casing, redrill the borehole and reinstall the casing to the specified depth.
If the casing cannot be removed from the borehole the contractor shall construct another well immediately adjacent to the original location and complete the well in accordance with these Technical Provisions at no additional cost to the Engineer. The abandoned hole shall be sealed in accordance with these Technical Provisions and in accordance with any laws pertaining to proper well abandonment at no additional cost to the Engineer.
4. If any of the casing assemblies collapse prior to well completion, the remaining hole shall be abandoned in accordance with these Technical Agenda Item #9.11.
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Provisions at no cost to the Engineer. A replacement borehole and well shall be drilled and constructed at an adjacent location as directed by the Engineer.
1.3.4 GRAVEL ENVELOPE AND TRANSITION SAND SEALS
A. Scope - This item shall consist of providing and installing coarse grained sand opposite the screen intervals and a fine sand transition seal between the coarse sand and the cement annular/sanitary seal, as specified by the Engineer, in the annulus between the casing and screens and the well bore of each well.
B. Methods
1. The gravel will be placed in the annulus between casing assembly and the inside of the drill string and brought up to a level within the annulus so that when a drill flight is removed sand will fill the annulus between the casing and the drill string. Sufficient sand will be placed inside the drill string so that sand will still remain in the drill string when a flight is removed. This procedure will be repeated until the gravel envelope is to the level specified in the final well design for casing installation furnished by the Engineer.
2. The fine sand transition seal will be placed in the annulus between the casing assembly and the inside of the drill string and brought up to a level within the annulus so that when a drill flight is removed sand will still fill the annulus between the casing and the drill string. This procedure will be repeated until the transition seal is to the level specified in the final well design for casing installation furnished by the Engineer.
3. The quantities of gravel placed in the annulus of each well shall not be less than the computed volume of the annulus. A quantity less than the computed value will be judged as an indication of voids, and corrective measures shall be taken by the Contractor.
4. If the volume of gravel installed in the annulus is less than the theoretical volume, the well may be rejected by the Engineer.
5. Gravel packing and transition seal placement shall continue uninterrupted until the gravel pack reaches the depth of the surface seal.
1.3.5 SANITARY SEAL
A. Scope - This item shall consist of providing and installing a neat cement sanitary seal in the annulus between the casing and the borehole of each well.
B. Methods
1. Before installing any sanitary seal material, any flights remaining in the borehole shall be removed.
Agenda Item #9.11.
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2. The sanitary seal sealing material will be poured from the surface into the annulus from the top of the fine sand transition seal to 12-inches from the finish grade if the seal depth is less than 20 feet below ground surface and no water is present in the borehole. If the top of the fine sand transition seal is more than 20 feet below ground surface, or if there is water in the borehole, the sealing material will be placed using the tremie pipe method.
3. Sealing operations shall continue uninterrupted until the seal is installed to the specified depth.
1.3.6 MONITORING WELL DEVELOPMENT
A. Scope - This item shall consist of utilizing airlift pumping and surging, surge block and bailing, or other approved method(s) in order to remove drilling fluids and to develop the gravel envelope and near-wellbore region prior to groundwater sampling.
B. Methods - Development of each monitoring well piezometer shall continue until the discharge water is sand-free and the following turbidity guidelines are achieved after surging:
for piezometers that produce less than 2 gpm, a turbidity of 10 NTU within two casing volumes of purging
for piezometers that produce at least 2 gpm, a turbidity of 5 NTU must be achieved within two casing volumes of purging.
1.3.7 SURFACE COMPLETION
A. Scope - This item shall consist of furnishing and installing surface completions as depicted on the plans and in accordance with State and local standards.
B. Methods
1. Above Ground Surface Completions
a. The Contractor shall excavate a square hole extending fourteen inches from the outside of the borehole and six (6) inches below ground surface.
A square wood form 6 inches deep shall be placed on the ground surface to form the concrete pedestal above the ground surface as shown in the Plans. A steel reinforcing wire mesh, with a maximum six-inch square opening, will be placed in the form and supported four-inches above the bottom of the excavation.
b. A steel riser (minimum of 5 feet long including cover) having a minimum outside diameter of 8 inches with a minimum wall thickness of 3/16 inches shall be used. A locking steel cover shall be attached to the riser, as shown in the Plans.
Agenda Item #9.11.
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c. The riser shall be suspended above the top of the well such that the top of the riser is 3 feet above grade. A concrete slurry shall then be poured and tamped on top of the annular seal such that the riser is set in concrete.
The concrete will be poured and tamped until it is approximately 3 inches below grade. The remaining portion of the excavation and the wood form will then be poured with concrete slurry, tamped and finished with a graded surface which shall slope gently away from the riser. d. The finished concrete pedestal shall be 12 inches in thickness and 6 inches above grade. The riser set in the center of the pedestal will extend 3 feet above grade. The steel riser shall be painted with high visibility, high grade rust resistant paint.
e. The Contractor shall install protective bollards around the concrete pedestal as shown on the Plans. Four bollards will be placed 24-inches from the center of the steel riser, perpendicular to the sides of the pedestal. Each 4-inch diameter bollard will extend 4-feet above ground surface. Bollards will be cemented in a minimum 8-inch diameter hole excavated to a minimum depth of 30-inches. The bollards will be painted with high visibility, high grade rust resistant paint.
2. Flush Mount Surface Completions
a. All below ground (flush mount) well completions will be housed in a traffic rated valve box with a cast iron lid and locking ring. The valve box will be a Morrison Series 519 manhole or approved equal. b. The Contractor shall excavate a hole large enough to allow for a 4-inch apron of concrete around the manhole at ground surface to a depth of 16-inches to allow for the installation of the specified manhole. c. The box will centered over the well casing and set flush with existing grade.
d. A concrete slurry shall then be poured and tamped on top of the annular seal and brought to grade level such that the box is set in concrete.
1.3.8 TEST HOLE ABANDONMENT
A. General - If directed by the Engineer, a test hole shall be destroyed in accordance with State and local standards for the construction and destruction of wells and other deep excavations.
B. Methods – Neat cement shall be injected from the bottom of the borehole by means of pumping equipment and a tremie pipe. The tremie pipe may be raised as the grout is placed but the discharge end must be submerged in grout at all times until the grouting is completed. The test hole shall be filled with cement grout to within 5 feet of the ground surface. The balance of the hole shall be filled with native material to the ground surface.
Agenda Item #9.11.
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1.3.9 REJECTED BOREHOLE OR WELL
A. General - No payment will be made for any labor or materials involved in the construction of any borehole or well when such a hole fails to reach the specified or directed final depth and/or diameter for any preventable cause, or when such a test hole fails to meet these Technical Provisions. Such holes will be rejected and shall be replaced as specified herein. Preventable failures include any failure caused by faulty or inadequate drilling equipment, failure caused by negligence or improper drilling operations or techniques, failure caused by the installation of faulty or non-approved materials, or failure caused by improperly protecting drill holes and drilling work from the natural elements, including cave- ins resulting from existing soil conditions.
B. Abandonment of a Rejected Borehole or Well -- Any rejected borehole or well shall be abandoned at no additional cost to the Owner and in accordance with provisions of Section 1.3.7. Any casing remaining in the hole shall be cut off at a depth of five feet and the upper portion thereof removed.
C. Non-Payment for Borehole and Well Abandonment - No payment will be made for the abandonment of a rejected borehole or well. The cost of abandonment shall be borne by the Contractor.
D. Replacement of a Rejected Borehole or Well - Any rejected borehole shall be replaced by another hole adjacent to the first, or at a location as directed by the Engineer.
1.3.10 STANDBY TIME/LABOR
1.3.10.1 STANDBY TIME
Within one (1) hour after the completion of test hole drilling and logging operations, the Engineer will provide the final well design. Such time will not be considered standby time.
During the drilling operations, it may be necessary for the Engineer to perform work or analysis that will require the drilling crew and equipment to stand idle. In such an event, the Engineer shall request the Contractor to cease operations and shall state the anticipated extent or duration thereof. The Contractor shall promptly cease operations.
1.3.10.2 LABOR
During the course of the project, the Engineer may direct the Contractor to perform work that is not explicitly defined in these Provisions. In such an event, the Engineer will request in writing to the Contractor the additional work be performed.
1.3.11 RECORDS
A. Scope - The item consists of preparing final records of the drilling and well construction.
B. Well Completion Records -- Prior to final acceptance of a test hole or well, the Contractor shall prepare and deliver to the Engineer a Well Completion Report in the format required by the State of California. The owner of the well listed on the Agenda Item #9.11.
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Well Completion Report shall indicate the County of Napa.
C. Final Prints - The Contractor shall prepare two (2) final prints of the daily tour reports, drilling logs, and as-built construction drawings. As-built construction documentation will include GPS coordinates for each monitoring well.
1.3.12 SITE CLEAN-UP AND RESTORATION
A. Scope - This item shall consist of restoring the work site to its original condition after work is completed.
B. Methods - The Contractor shall keep the premises free from accumulations of waste materials, rubbish, and other debris resulting from the Work, and at completion of the Work, he/she shall remove all waste materials, rubbish, and debris from and about the well site as well as all tools, construction equipment, fuel tanks, machinery and surplus materials. The Contractor shall leave the site clean and ready for use by the Engineer. The Contractor shall restore to their original condition all temporary work areas. The Contractor is responsible for any damages to properties adjacent to the sites caused by drilling or construction activities associated with the Work described herein.
Agenda Item #9.11.
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Agenda Item #9.11.
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Agenda Item #9.11.
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EXHIBIT “B”
COST ESTIMATE FOR WELL INSTALLATION
The estimate of cost to complete the installation of one (1) dual-completion monitoring well are provided in Table 1 below.
SCHEDULE
It is anticipated installation of monitoring wells described herein will be performed no later than October 30, 2023.
Table 1: Cost estimate
Agenda Item #9.11.
Agenda Report to the City Council
Agenda Section: CONSENT ITEMS
Department: Public Works
DATE: September 12, 2023
FROM: Eric Janzen, Assistant Public Works Director
SUBJECT: Consider Authorizing the City Manager to Execute and Make Minor Modifications to Amendment No. 2 to Funding
Agreement No. 19-19 with the Napa Valley Transportation Authority (NVTA) for additional construction contingency funding for the St Helena to Calistoga Vine Trail Project in an Amount Not to Exceed $133,000.
RECOMMENDED
ACTION:
Approve the attached Resolution.
PREVIOUS COUNCIL
ACTION:
On October 7, 2019 NVTA and the City entered into NVTA
Agreement 19-19 whereby the City agreed to provide
financial support of the construction of the Vine Trail Segment from Calistoga to St. Helena ("Project"). On
January 24, 2023, the City Council approved Resolution
2023-10 amending Agreement 19-19 and authorizing a
budget increase to a total of $320,250.
STATEMENT OF THE
PURPOSE:
The purpose is to amend Agreement 19-19 to increase the City’s cost-share contribution to the St. Helena to Calistoga Vine Trail Project by $133,000 to a total not-to-exceed amount of $453,250.
FINANCIAL IMPACT: The Fiscal Impact is $133,000 to be funded with Measure T – Class I Trails Fund 241 and will require a budget
adjustment in the amount of $133,000 to 241-50-00-21-45.
BACKGROUND:
The Napa Valley Vine Trail (NVVT) is envisioned as a 47-mile Class I mixed-use path for pedestrians and cyclists that will run the length of the Napa Valley (Calistoga to American Canyon) and connect to the Vallejo ferry terminal in Vallejo, providing a crucial link to the City of San Francisco and larger Bay Area.
On September 24, 2019, City Council authorized, via Resolution 2019-116, a funding agreement with Napa Valley Transportation Authority (NVTA) for the Vine Trail design from Calistoga to St. Helena (the “Project”) in an amount not-to-exceed $241,000. The Agreement included Section 1(d) - Future Funding Shortfall Commitment for reasonable Project funding shortfalls.
Agenda Item #9.12.
Additional expenditures were incurred during the construction phase of the Vine Trail segment between St. Helena and Calistoga. The share of these expenditures applicable to the City of St. Helena is $133,000 or about 19% of the total additional expenditures.
DISCUSSION:
NVTA procured several grants totaling approximately $14,400,000 (95%) for the construction project and is now requesting the remaining $700,000 (5%) be funded by the participating agencies as follows:
Organization Funding Share Cost Share
St. Helena 19% $133,000
Calistoga 19% $133,000
County of Napa 37% $273,000
Vine Trail Coalition 25% $161,000
TOTAL 100% $700,000
At the time of contract award, a 5% ($616,000) construction contingency was authorized based on available construction funding.
A portion of the additional expenditures are the result of construction delays associated with unrelated PG&E work in the Vine Trail construction area. NVTA has submitted a claim to PG&E to recoup these expenditures. The Claim has not yet been finalized. If PG&E finds merit in the claim, any reimbursement received will be refunded to The Jurisdictions according to the above funding share percentages.
The $700,000 shortfall forecast is a conservative estimate. Should any funding go unused at the end of the project, it will be refunded to the jurisdictions accordingly.
ENVIRONMENTAL REVIEW:
NVTA obtained a Mitigated Negative Declaration (State Clearinghouse Number 2020060572) adopted by the NVTA Board on August 19, 2020.
DOCUMENTS ATTACHMENTS:
Attachment 1.RESOLUTION.Amendment No. 2 to Agreement 19-19 Attachment 2.Vine Trail Project - St. Helena Funding Agreement Amend No. 2 Agenda Item #9.12.
CITY OF ST. HELENA
RESOLUTION No. 2023-xx
Adopt resolution authorizing: (1) City Manager to execute Amendment No. 2 to the Cooperative Agreement with Napa Valley Transportation Authority for the Napa Valley Vine Trail for the design of the segment between the cities of Calistoga and St. Helena; (2) a budget increase of $133,000 to 241-5000-2145.
RECITALS
A. On October 7, 2019 NVTA and the CITY entered into NVTA Agreement 19-19 whereby the CITY agreed to provide financial support of the construction of the Vine Trail Segment from Calistoga to St. Helena (“Project”) upon the meeting of certain conditions precedent; B. Additional expenditures were incurred during the construction phase of the Vine Trail Segment; C. The share of these expenditures applicable to the City of St. Helena is $133,000; D. The parties desire to amend the Agreement to increase the previous commitment by $133,000 to a total of $453,250 and authorize those funds to be used for construction contingency.
RESOLUTION
NOW, THEREFORE, the City Council of the City of St. Helena resolves as follows:
1. Authorize the City Manager to execute Amendment No. 2 to NVTA Agreement 19-19, Cooperative Agreement with Napa Valley Transportation Authority for the Napa Valley Vine Trail; and
2. Authorize a budget increase of $133,000 to 241-5000-2145 and authorize use of fund 241 Measure T- Class I Trails fund balance in the same amount; and Approved at a Regular Meeting of the St. Helena City Council on September 12, 2023, by the following vote:
Mayor Paul Dohring:
Vice Mayor Eric Hall:
Council Member Anna Chouteau:
Council Member Lester Hardy:
Council Member Billy Summers:
APPROVED: ATTEST:
Paul Dohring, Mayor Cindy Tzafopoulos, City Clerk
Agenda Item #9.12.
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NAPA VALLEY TRANSPORTATION AUTHORITY AGREEMENT NO. 19-19 CITY OF ST. HELENA AGREEMENT
AMENDMENT NO. 2 FUNDING AGREEMENT
THIS AMENDMENT NO. 2 TO NAPA VALLEY TRANSPORTATION AUTHORITY AGREEMENT NO. 19-19 AND CITY OF ST HELENA AGREEMENT ("Agreement") is made and entered into as of this ____ day of ______________, 2023, by and between the NAPA VALLEY TRANSPORTATION AUTHORITY, a joint powers authority (hereinafter referred to as "NVTA"), and the City of St. Helena, a California municipal corporation, whose mailing address is 1480 Main Street, St. Helena, CA 94574 (hereinafter referred to as “CITY”). NVTA and City are sometimes referred to herein individually as a “Party” and collectively as the “Parties”.
RECITALS
WHEREAS, on October 7, 2019, the Parties entered into an Agreement whereby the CITY agreed to provide financial support of the construction of the Vine Trail Segment from Calistoga to St. Helena (“Project”) upon the meeting of certain conditions precedent; and
WHEREAS, on January 24th, 2023, the City of Calistoga Council authorized Amendment No. 1 to provide the transfer of $79,250 and authorize those funds to be used for the fees to support California Department of Transportation (Caltrans) staff review of CEQA document and design and engineering documents to support the approval of Caltrans permits; and
WHEREAS, the parties desire to amend the Agreement to increase the previous commitment by $133,000 to a total of $453,250 and authorize those funds to be used for unforeseen construction costs associated with utility and winter weather delays to support the completion of the project construction.
NOW, THEREFORE, the NVTA and the CITY agree to amend the Agreement as follows:
Agenda Item #9.12.
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TERMS
1. Section 3 of the Agreement is amended to read in full as follows:
3. Payment of Funds. Funding for the Project shall be provided for the Project as follows:
a. The CITY shall make one (1) lump sum payment to NVTA of ONE HUNDRED THREE THOUSAND AND 00/100 DOLLARS ($103,000.00) upon the full execution of the design, engineering, and environmental contract agreement (65% Design) and within 30-days from receipt of invoice from NVTA. b. The CITY shall make one (1) lump sum payment to NVTA for ONE HUNDRED THIRTY EIGHT THOUSAND AND 00/100 DOLLARS
($138,000.00) after the full execution of the final design, engineering and environmental contract agreement and within 30-days from receipt of invoice from NVTA.
c. The CITY shall make (1) lump sum payment to NVTA for FIFTY FOUR THOUSAND AND FIFTY DOLLARS ($54,050) upon the full execution of the Caltrans Cooperative Agreement and within 30-days from receipt of invoice from NVTA.
d. The CITY shall make (1) lump sum payment to NVTA for NINE THOUSAND TWO HUNDRED AND 00/100 DOLLARS ($9,200.00) for Funding Shortfall 2 and within 30-days from receipt of invoice from NVTA.
e. The CITY shall make (1) lump sum payment to NVTA for SIXTEEN THOUSAND AND 00/100 DOLLARS ($16,000.00) for Funding Shortfall 3 and within 30-days from receipt of invoice from NVTA.
f. The CITY shall make (1) lump sum payment to NVTA for ONE HUNDRED THIRTY THREE THOUSAND AND 00/100 DOLLARS ($133,000.00) for unforeseen construction costs associated with utility and winter weather delays to support the completion of the project construction and within 30- days from receipt of invoice from NVTA.
g. NVTA will use the allocated funding, as well as local support, to fund the design and construction of the Project.
h. Future Funding Shortfall Commitment. CITY understands that the costs to complete the Project are preliminary estimates and recognize that completion Agenda Item #9.12.
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of the Project by NVTA may require additional funding. In the event that there are funding shortfalls, CITY agrees to work cooperatively with NVTA and other partners to identify and secure additional funding for reasonable Project funding shortfalls.
2. Except as set forth above, the terms and condition of the Agreement shall remain in full force and effect as previously approved.
IN WITNESS WHEREOF, the duly authorized representatives of the Parties have executed this Amendment No. 2 to the Agreement.
CITY: NVTA:
By:____________________________ By: ___________________________ ANIL COMELO, City Manager KATE MILLER, Executive Director Date: , 2023 Date: , 2023
ATTEST: ATTEST:
By:____________________________ By:_____________________________ CINDY TZAFOPOULOS, City Clerk LAURA SANDERLIN
Secretary of the Board
APPROVED AS TO FORM: APPROVED AS TO FORM:
By: ____________________________ By: ___________________________ ETHAN WALSH, City Attorney OSMAN MUFTI, NVTA Counsel
Agenda Item #9.12.
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EXHIBIT A: Project Map Conceptual Plans
St Helena City Limits - Pratt Ave to Deer Park Rd
Agenda Item #9.12.
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Agenda Item #9.12.
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Agenda Item #9.12.
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Agenda Item #9.12.
Agenda Report to the City Council
Agenda Section: CONSENT ITEMS
Department: Public Works
DATE: September 12, 2023
FROM: Lesley Milton, Asst. to the City Manager
SUBJECT: Adopt Resolution Correcting the Administrative Record on Resolutions 2023-06 and 2023-87 and associated contracts with BKF Engineers to update the Not-to-Exceed Dollar Value from $1,045,600 to $1,065,600.
RECOMMENDED
ACTION:
Approve the attached Resolution
PREVIOUS COUNCIL
ACTION:
The Council has approved the original contract and six
amendments all for the Downtown Capital Improvement
Projects.
STH Contract: FY
2019-075
Date Approved Resolution
Original
Agreement
December 11,
2018
2018-176
Amendment 1 May 28, 2019 2019-68
Amendment 2 June 25, 2019 2019-81
Amendment 3 December 14,
2021
2021-158
Amendment 4 January 25, 2022 2022-4
Amendment 4* March 28, 2023 2023-26
Amendment 5** July 25, 2023 2023-87
STATEMENT OF THE
PURPOSE:
Administrative correction to incorporate a missed amendment number and to update the contract total-not-to exceed dollar value.
FINANCIAL IMPACT: There is no fiscal impact associated with this action. The funds have already been expended in a previous fiscal year and incorporated into the FY 22-23 and FY 23-24 budgets.
BACKGROUND:
On December 11, 2018 the City approved a Professional Services Agreement (PSA) with BKF engineers to provide professional services in connection with the Downtown CIP Improvement Projects - STH Contract: FY2019-075. Since then the following amendments to the contract have been approved:
Agenda Item #9.13.
STH Contract: FY 2019-
075
Date Approved Resolution
Original Agreement December 11, 2018 2018-176
Amendment 1 May 28, 2019 2019-68
Amendment 2 June 25, 2019 2019-81
Amendment 3 December 14, 2021 2021-158
Amendment 4 January 25, 2022 2022-4
Amendment 4* March 28, 2023 2023-26
Amendment 5** July 25, 2023 2023-87
* Should have been Amendment #5
** Should have been Amendment #6
The March 23, 2023 and July 26, 2023 reports and amendments did not include reference to the adopted amendment #4 approved on January 25, 2022 and were therefore mislabeled as noted above.
DISCUSSION:
Since the time the last amendment was approved in July 2023, staff discovered this administrative error in the numbering of the amendments as well as the accurate reflection of the not-to-exceed dollar amount in the contract and Resolutions. Table 2 provides a summary of what was reflected in the contract amendments and Resolutions and Table 3 provides a summary of what should have been reflected.
Table 2 - Summary of Contract Amendments and Resolutions Authorized by City Council STH Contract:
FY 2019-075
Date Approved Amount Not-to-Exceed
Original Agreement 12/11/18 $529,000 $529,000
Amendment 1 5/28/19 $74,100 $603,100
Amendment 2 6/25/19 $32,500 $635,600
Amendment 3 12/14/21 $146,000 $781,600
Amendment 4 1/25/22 $11,000 $792,600
Amendment 4* 3/28/23 $151,000 $923,600
Amendment 5** 7/25/23 $122,000 $1,045,600
* Should have been Amendment #5
** Should have been Amendment #6
Table 3 - Summary of What should have been Reflected in Amendments and Resolutions STH Contract:
FY 2019-075
Date Approved Amount Not-to-Exceed
Original Agreement 12/11/18 $529,000 $529,000
Amendment 1 5/28/19 $74,100 $603,100
Amendment 2 6/25/19 $32,500 $635,600
Amendment 3 12/14/21 $146,000 $781,600
Agenda Item #9.13.
Amendment 4 1/25/22 $11,000 $792,600
Amendment 5 3/28/23 $151,000 $943,600
Amendment 6 7/25/23 $122,000 $1,065,600
This item is being brought to City Council as an administrative clean up to ensure our record is accurate. This item is requesting to adopt a resolution authorizing modification to the adopted Resolutions 2023-06 and 2023-87 and corresponding agreements with BKF adopted March 23, 2023 and July 26, 2023. Table 4 provides a summary of the update.
Table 4 - Summary of Administrative Correction
Date Adopted Original
Amendment #
Updated
Amendment #
Original Notto-Exceed
Amount
Updated Notto-Exceed
Amount
3/28/23 4 5 $923,600 $943,600
7/25/23 5 6 $1,045,600 $1,065,600
There are no additional expenditure requested with this action as the funds have already been budgeted and encumbered in the FY 22-23 and FY 23-24 budgets.
BKF Engineers has agreed to sign an acknowledgement of the modification to the contract, in lieu of executing a new contract.
Links to the original staff reports are available as follows:
December 11, 2018
May 28, 2019
June 25, 2019
December 14, 2021
January 25, 2022
March 28, 2023
ENVIRONMENTAL REVIEW: This is not a CEQA project
DOCUMENTS ATTACHMENTS:
20230912 PW BKF Reso
Agenda Item #9.13.
CITY OF ST. HELENA
RESOLUTION NO.
RESOLUTON OF THE COUNCIL OF THE CITY OF ST. HELENA
CORRECTING THE ADMINISTRATIVE RECORD ON
RESOLUTION 2023-06 and 2023-87 WITH BKF ENGINEERS TO
UPDATE THE AMENDMENT NUMBER AND NOT-TO-EXCEED
DOLLAR VALUE FROM $1,045,600.00 TO $1,065,600.00
RECITALS
A. On December 11, 2018, via Resolution 2018-176 the City approved the original agreement with BKF engineers to provide professional in connection with the Downtown CIP Improvement Projects for a total not-to-exceed amount of $529,000; and
B. The following amendments to the contract have been approved:
a. May 28, 2019, Amendment #1 – Resolution 2019-68 for $74,100 b. June 25, 2019, Amendment #2 – Resolution 2019-81 for $32,500 c. December 14, 2021, Amendment #3 – Resolution 2021-158 for $146,000
d. January 25, 2022, Amendment #4 – Resolution 2022-4 for $11,000 e. March 28, 2023, Amendment #5 – Resolution 2023-26 for $151,000 f. July 25, 2023, Amendment #6 – Resolution 2023-87 for $122,000; and
C. Following the Council action on July 25, 2023, it was discovered that the March 23, 2023 Council action did not include reference to the adopted Amendment #4 approved on January 25, 2022 therefore the not-to-exceed dollar value was incorrect as well as the numbering of the resolution; and D. Because the January 25, 2022 resolution numbering and not-to-exceed amount was incorrect, the July 25, 2023 Council action was also incorrect; and
E. To ensure the record is accurate and required, it is important to adopt a resolution authorizing modification to the adopted resolution 2023-06 and 2023-87 and the agreement with BKF adopted March 23, 2023 to update the title from Amendment #4 to Amendment #5 and from Amendment #5 to #6 and increasing the total not-to-exceed value to $1,065,600.00.
Agenda Item #9.13.
RESOLUTION
NOW, THEREFORE, the City Council of the City of St. Helena resolves as follows:
1. The City Council approves correcting the Administrative Record amending adopted resolution 2023-06 and the agreement with BKF adopted March 23, 2023 to update the title from Amendment #4 to Amendment #5 and increasing the total not-to-exceed value to $943,600.00.
2. The City Council approves correcting the Administrative Record amending adopted resolution 2023-87 and the agreement with BKF adopted July 26, 2023 to update the title from Amendment #5 to Amendment #6 and increasing the total not-to-exceed value to $1,065,600.00.
3. The City Council approves the following at the summary of Council actions regarding the Professional Services Agreement with BKF (STH Contract:
FY2018-075) for professional services associated with the Downtown Capital Improvement projects:
STH Contract:
FY 2019-075
Date Approved Resolution Amount Not-to-Exceed
Original Agreement 12/11/18 2018-176 $529,000 $529,000
Amendment 1 5/28/19 2019-68 $74,100 $603,100
Amendment 2 6/25/19 2019-81 $32,500 $635,600
Amendment 3 12/14/21 2021-158 $146,000 $781,600
Amendment 4 1/25/22 2022-4 $11,000 $792,600
Amendment 5 3/28/23 2023-26 $151,000 $943,600
Amendment 6 7/25/23 2023-87 $122,000 $1,065,600
4. The City Council authorizes the City Manager to execute any necessary documentation to make this administrative correction in alignment with the table noted in Section #3 above.
Approved at a Regular Meeting of the St. Helena City Council on September 12, 2023, by the following vote:
Mayor Paul Dohring: _____
Vice Mayor Eric Hall: _____
Agenda Item #9.13.
Council Member Anna Chouteau: _____
Council Member Lester Hardy: _____
Council Member Billy Summers: _____
APPROVED: ATTEST:
______________________ ________________________
Paul Jamison Dohring, Mayor Cindy Tzafopoulos, City Clerk Agenda Item #9.13.
Agenda Report to the City Council
Agenda Section: OLD BUSINESS
Department: Administration/Planning
DATE: September 12, 2023
FROM: Ethan Walsh, City Attorney
SUBJECT: Motion to Reconsider the Urgency Ordinance enacting a moratorium on the issuance of any discretionary permit or other entitlement for the demolition or expansion of existing residential units and accessory structures located within the Twenty-acre Agricultural (A-20) district and determining the Ordinance to be exempt from CEQA.
(This item will only be considered if a motion for
reconsideration of the urgency ordinance is approved by the City Council)
RECOMMENDED
ACTION:
Staff recommends that the City Council:
1. Adopt an Urgency Ordinance of the City Council of
the City of St. Helena enacting a moratorium on the
issuance of any permit or other entitlement for the
demolition or expansion of existing residential units
and accessory structures located within the Twentyacre Agricultural (A-20) district, and determining the Ordinance to be exempt from CEQA.
PREVIOUS COUNCIL
ACTION:
August 22, 2023 – Consideration of an urgency ordinance enacting a moratorium on the issuance of any permit or
other entitlement for the demolition or expansion of
existing residential units and accessory structures located within the Twenty-acre Agricultural (A-20) district and determining the Ordinance to be exempt from CEQA.
STATEMENT OF THE
PURPOSE:
The purpose is to determine whether the Council wishes to reconsider its vote from the August 22 meeting, which failed on a 3-2 vote (4/5 vote is required for approval of an urgency ordinance). If the Council votes to reconsider the Urgency Ordinance, it will be discussed immediately following the vote on reconsideration. If no motion is made, or a vote on reconsideration fails, then no further action will be taken on the Urgency Ordinance.
FINANCIAL IMPACT: There will be no financial impact from a vote on reconsideration.
BACKGROUND:
Agenda Item #11.1.
At the last regular City Council meeting on August 22, 2023, the Council considered an urgency ordinance under Government Code Section 65858 to enact a moratorium on the issuance of any discretionary permits or other entitlements for the demolition or expansion of existing residential units and accessory structures located within the Twenty-acre Agricultural (A-20) zoning district. Council heard the staff presentation and public comment on the proposed urgency ordinance and voted on the adoption of the ordinance.
The Council voted in favor of approving the ordinance with a 3-2 vote, with Mayor Dohring and Councilmembers Chouteau and Hardy voting in favor or approval, and Vice Mayor Hall and Councilmember Summers voting against approval. Urgency ordinances require a 4/5 vote of the Council in order to be approved, and as a result the urgency ordinance failed.
After the Council meeting, Councilmember Summers informed City staff that he would like to reconsider his vote in opposition to the urgency ordinance. City staff explained the process for reconsideration of a Council vote (as outlined below), and Councilmember Summers requested that an item be put on the next Council agenda to reconsider the vote on the urgency ordinance.
DISCUSSION:
As part of the City Council’s adopted Rules of Procedure for the Conduct of Council Meetings and Standards of Conduct, the City Council follows Rosenberg’s Rules of Order (“Rosenberg’s Rules”) in conducting its Council meetings. Rosenberg’s Rules include specific rules that govern reconsideration of a Council action. As Rosenberg’s Rules state, “[a] tenet of parliamentary procedure is finality. After vigorous discussion, debate and a vote, there must be some closure to the issue. And so, after a vote is taken, the matter is deemed closed, subject only to reopening if a proper motion to reconsider is made.” (Rosenberg’s Rules of Order, p. 5.)
Under Rosenberg’s Rules, a motion to reconsider must be made at the meeting where the item was first voted upon or at the very next meeting of the body. Any motion made at a later meeting is untimely. Second, a motion to reconsider may be made only by a member who voted in the majority of the original motion. “If such a member has a change of heart, he or she may make the motion to reconsider (any other member of the body may second the motion). If a member who voted in the minority seeks to make the motion to reconsider, it must be ruled out of order. The purpose of this rule is finality. If a member of the minority could make the motion to reconsider, then the item could be brought back to the body again and again, which would defeat the purpose of finality.” (Id.) In the present case, a motion for reconsideration of the urgency ordinance can be considered at the September 12 Council meeting, because it is the very next meeting of the City Council after the vote to approve the urgency ordinance failed. While Rosenberg’s Rules state that such a motion must be brought by a member of the majority on the prior vote, it is clear from the context that the Rules mean the member making the motion must be from the successful side of the vote. In this instance Vice Mayor Hall and Councilmember Summers were in the minority, but because the motion failed to receive a 4/5 vote, they were on the successful side of the motion, and only they could make a Agenda Item #11.1.
motion to reconsider in order to ensure the tenet of finality described in Rosenberg’s Rules.
Therefore, only Vice Mayor Hall or Councilmember Summers may make a motion to reconsider the Urgency Ordinance, and they must do so at the September 12 meeting in order for the urgency ordinance to be reconsidered. If there is a motion to reconsider the urgency ordinance and it passes, then Staff has agendized the urgency ordinance, and it may be reconsidered. If a motion for reconsideration is not made, or it does not pass, then no further action will be taken with regard to the proposed urgency ordinance.
ENVIRONMENTAL REVIEW:
CEQA
This Urgency Ordinance is not subject to the California Environmental Quality Act (CEQA) pursuant to Sections 15060(c)(2) (the activity will not result in a direct or reasonably foreseeable indirect physical change in the environment) and 15060(c)(3) (the activity is not a project as defined in Section 15378) of the CEQA Guidelines, California Code of Regulations, Title 14, Chapter 3, because it has no potential for resulting in physical change to the environment, directly or indirectly; it prevents changes in the environment pending the completion of the contemplated zoning code revisions and related impact studies.
DOCUMENTS ATTACHMENTS:
St. Helena - Urgency Ordinance - Moratorium re A-20 District (revised)-c1 Rosenberg'sRules-c1
Agenda Item #11.1.
URGENCY ORDINANCE NO. _____
AN URGENCY ORDINANCE OF THE CITY COUNCIL OF
THE CITY OF ST. HELENA IN ACCORDANCE WITH
GOVERNMENT CODE SECTION 65858 ENACTING A
MORATORIUM ON THE ISSUANCE OF ANY PERMIT OR
OTHER ENTITLEMENT FOR THE DEMOLITION OR
EXPANSION OF EXISTING RESIDENTIAL UNITS AND
ACCESSORY STRUCTURES LOCATED WITHIN THE
TWENTY-ACRE AGRICULTURE (A-20) DISTRICT
THE CITY COUNCIL OF THE CITY OF ST. HELENA DOES ORDAIN AS FOLLOWS:
SECTION 1. Findings. In accordance with the California Government Code Section 65858 and in order to protect the public health, safety and welfare, the City Council of the City of St. Helena makes certain findings as follows:
A. Government Code Section 65858 authorizes the City to adopt an interim Urgency Ordinance to protect the public safety, health and welfare and to prohibit uses which may be in conflict with a contemplated general plan or zoning proposal which the City is considering, studying or intends to study within a reasonable time.
B. The City is currently engaged in a comprehensive update of its Zoning Code to bring it into conformity with the City’s 2040 General Plan Update adopted in June 2019 (“General Plan”).
C. As part of the Zoning Code update, the City is considering amendments to zoning regulations for the Twenty-Acre Agriculture (A-20) District, including but not limited to, revisions to development standards governing maximum ground floor area and maximum lot coverage for residential units and accessory structures.
D. A primary focus of the General Plan is to protect the rural, small town quality and agricultural character of St. Helena. (General Plan, 1-2.) General Plan Policy LU 5.1 discourages conversion of existing farmland to non-agricultural uses. General Plan Policy LU 5.3 strictly limits development on properties existing at the time of the adoption of the General Plan that are designated as agricultural land.
E. Pursuant to St. Helena Municipal Code Section 17.20.010, the purpose of the A-20 District is to preserve agricultural land uses and provide for future orderly development as the urban limit line is adjusted to accommodate urban growth. The A-20 District restricts the density of residential use and stipulates the location and area of residential development to promote Agenda Item #11.1.
preservation of agricultural land use and reduce impacts to the provision of infrastructure as the urban area of the City expands.
F. Given the City’s consideration of the proposed zoning amendments, and in light of recent applications received by the City for the development of property within the A-20 District, the City Council desires to establish, on an urgency basis, a temporary moratorium on the permitting of any demolition or expansion of existing residential units and accessory structures located within the A-20 District. The City Council finds and determines that the approval of any demolition or expansion of existing residential units during the moratorium period could conflict with zoning regulations for the A-20 District that the City Council, Planning Commission and Community Development staff are currently considering, and would adversely impact the implementation of any zoning amendments that may be adopted by the City.
G. In order to prevent the frustration of any contemplated zoning regulations now being considered, and the introduction of potentially nonconforming land uses that could conflict with the City’s later-adopted Zoning Code update, the public interest, health, safety and welfare require the immediate enactment of this Urgency Ordinance. The City Council has determined that a temporary moratorium on the permitting of any demolition or expansion of existing residential units and accessory structures located within the A-20 District will allow the City time to complete its review and adopt appropriate zoning regulations in conformance with the General Plan and its policies to preserve the agricultural character of the City.
SECTION 2. Moratorium. The City Council hereby enacts this Interim Urgency Ordinance under section 65858, subdivision (a), of the California Government Code, which allows the City to adopt an Interim Urgency Ordinance by not less than a fourfifths vote, to protect the public safety, health, and welfare by prohibiting any use that may be in conflict with a zoning proposal that the City Council, Planning Commission, or Community Development Department of the City is considering or studying or intends to study within a reasonable time. Accordingly, pending adoption of the Zoning Code update, which includes amendments to regulations related to the Twenty-Acre Agriculture (A-20) District, the City of St. Helena shall not issue any discretionary permits required for thepermit any demolition or expansion of an existing residential unit or accessory structure located within the A-20 District..
SECTION 3. Definitions. For purposes of this Urgency Ordinance, the following definitions shall apply:
A. “Residential unit” has the same definition as “dwelling unit” set forth in 17.04.160.B of the St. Helena Municipal Code, which defines “dwelling unit” as:
Agenda Item #11.1.
“A building or portion of a building including one or more rooms which is designed or used as a residence for one family or housekeeping unit with facilities for living, sleeping, cooking and dining.
In determining the number of units in a particular building or group of buildings, the city shall consider and weigh any or all of the following factors: the design of any building, including the internal floor plan and the availability of access between various parts of the building; the fixtures and furnishings installed or capable of being installed; the number and types of different rooms (including their actual or potential uses); the size of any building; the number of families or housekeeping units actually or capable of occupying the building; the location of the building; the number and location of primary entrances to the building; and any other factor that may be relevant. In making this determination with respect to proposed new uses, the city shall give primary consideration to design-related factors. In making this determination with respect to existing uses, the city may give primary consideration to the number of families actually using the premises, or to design-related factors, or to both, as may be appropriate under the circumstances. No building shall be deemed to be a dwelling with a fewer number of units based on its actual use if the design-related factors indicate that it has a greater number of units.”
B. “Accessory structure” has the same definition as “accessory structure” set forth in Section 17.116.030.C.2 of the St. Helena Municipal Code, which defines “accessory structure” as “a structure that is accessory and incidental to a dwelling located on the same lot.”
SECTION 4. Urgency. The City Council hereby finds and determines that adoption of this Urgency Ordinance is necessary for the current and immediate protection of the public health, safety, and welfare of the City and its residents for all the reasons set forth in the Findings above, which are hereby expressly incorporated by reference as though fully set forth herein.
SECTION 5. Permitting Prohibited. No new discretionary permit, approval, or other entitlement for any demolition or expansion of any existing residential unit or accessory structure may be issued while this moratorium or any extension of it is in effect. Ministerial building and demolition permits may be issued for those projects which received discretionary permit approval prior to enactment of this urgency ordinance, or for those projects that do not require discretionary review under the City Zoning Code.
Agenda Item #11.1.
SECTION 6. Compliance with California Environmental Quality Act. The City Council finds that this Urgency Ordinance is not subject to the California Environmental Quality Act (CEQA) pursuant to Sections 15060(c)(2) (the activity will not result in a direct or reasonably foreseeable indirect physical change in the environment) and 15060(c)(3) (the activity is not a project as defined in Section 15378) of the CEQA Guidelines, California Code of Regulations, Title 14, Chapter 3, because it has no potential for resulting in physical change to the environment, directly or indirectly; it prevents changes in the environment pending the completion of the contemplated zoning code revisions and related impact studies.
SECTION 7. Severability. If any section or provision of this Urgency Ordinance is for any reason held to be invalid or unconstitutional by any court of competent jurisdiction, or contravened by reason of any preemptive legislation, the remaining sections and/or provisions of this Urgency Ordinance shall remain valid. The City Council hereby declares that is would have adopted this Urgency Ordinance, and each section or provision thereof, regardless of the fact that any one or more section(s) or provision(s) may be declared invalid or unconstitutional or contravened via legislation.
SECTION 8. Effective Date. This Urgency Ordinance is declared an urgency measure necessary for the immediate protection and preservation of the public peace, health, safety, and welfare for the reasons stated above, and it takes effect immediately upon adoption by the City Council by at least a four-fifths vote.
SECTION 9. Written Report. At least ten (10) days before this Urgency Ordinance or any extension expires, the City Manager shall issue a written report describing the measures taken to alleviate the conditions which led to the adoption of this Urgency Ordinance.
SECTION 10. Publishing. The City Clerk shall certify to the passage of this Urgency Ordinance and cause the same or a summary thereof to be published within fifteen (15) days after adoption in a newspaper of general circulation, printed and published in St. Helena, California.
SECTION 11. Term. This Ordinance is an Urgency Ordinance enacted pursuant to Government Code section 65858. The term of this Urgency Ordinance shall be for forty five (45) days from the date of adoption and shall expire and be of no further force or effect, unless and until extended in accordance with Government Code Section 65858.
THE FOREGOING ORDINANCE was adopted as an urgency ordinance by a four-fifths vote at a regular meeting of the St. Helena City Council on the ___ day of __________, 2023, by the following vote:
AYES:
NOES:
ABSENT:
Agenda Item #11.1.
ABSTAIN:
APPROVED:
___________________________________
Paul Dohring, Mayor
ATTEST:
CITY OF ST. HELENA
___________________________________
Cindy Tzafopoulos, City Clerk
I, CINDY TZAFOPOULOS, CITY CLERK of the City of St. Helena, California, do hereby certify that the foregoing Urgency Ordinance was approved by a four-fifths vote at a regular meeting of the City Council on the ___ day of __________, 2023, by the following vote:
AYES:
NOES:
ABSENT:
ABSTAIN:
Agenda Item #11.1.
Rosenberg’s Rules of Order
REVISED 2011
Simple Rules of Parliamentary Procedure for the 21st Century By Judge Dave Rosenberg
Agenda Item #11.1.
ii
MISSION and CORE BELIEFS
To expand and protect local control for cities through education and advocacy to enhance the quality of life for all Californians.
VISION
To be recognized and respected as the leading advocate for the common interests of California’s cities.
About the League of California Cities
Established in 1898, the League of California Cities is a member organization that represents California’s incorporated cities.
The League strives to protect the local authority and automony of city government and help California’s cities effectively serve their residents. In addition to advocating on cities’ behalf at the state capitol, the League provides its members with professional development programs and information resources, conducts education conferences and research, and publishes Western City magazine.
© 2011 League of California Cities. All rights reserved.
About the Author
Dave Rosenberg is a Superior Court Judge in Yolo County. He has served as presiding judge of his court, and as presiding judge of the Superior Court Appellate Division. He also has served as chair of the Trial Court Presiding Judges Advisory Committee (the committee composed of all 58 California presiding judges) and as an advisory member of the California Judicial Council. Prior to his appointment to the bench, Rosenberg was member of the Yolo County Board of Supervisors, where he served two terms as chair. Rosenberg also served on the Davis City Council, including two terms as mayor. He has served on the senior staff of two governors, and worked for 19 years in private law practice. Rosenberg has served as a member and chair of numerous state, regional and local boards. Rosenberg chaired the California State Lottery Commission, the California Victim Compensation and Government Claims Board, the Yolo-Solano Air Quality Management District, the Yolo County Economic Development Commission, and the Yolo County Criminal Justice Cabinet. For many years, he has taught classes on parliamentary procedure and has served as parliamentarian for large and small bodies.
Agenda Item #11.1.
1 Table of Contents
About the Author............................................................................................................ii Introduction....................................................................................................................2 Establishing a Quorum...................................................................................................2 The Role of the Chair......................................................................................................2 The Basic Format for an Agenda Item Discussion........................................................2 Motions in General.........................................................................................................3 The Three Basic Motions................................................................................................3 Multiple Motions Before the Body.................................................................................4 To Debate or Not to Debate............................................................................................4 Majority and Super-Majority Votes ...............................................................................5 Counting Votes................................................................................................................5 The Motion to Reconsider..............................................................................................6 Courtesy and Decorum ..................................................................................................7 Special Notes About Public Input..................................................................................7 Agenda Item #11.1.
2 Establishing a Quorum
The starting point for a meeting is the establishment of a quorum.
A quorum is defined as the minimum number of members of the body who must be present at a meeting for business to be legally transacted. The default rule is that a quorum is one more than half the body. For example, in a five-member body a quorum is three.
When the body has three members present, it can legally transact business. If the body has less than a quorum of members present, it cannot legally transact business. And even if the body has a quorum to begin the meeting, the body can lose the quorum during the meeting when a member departs (or even when a member leaves the dais). When that occurs the body loses its ability to transact business until and unless a quorum is reestablished.
The default rule, identified above, however, gives way to a specific rule of the body that establishes a quorum. For example, the rules of a particular five-member body may indicate that a quorum is four members for that particular body. The body must follow the rules it has established for its quorum. In the absence of such a specific rule, the quorum is one more than half the members of the body.
The Role of the Chair
While all members of the body should know and understand the rules of parliamentary procedure, it is the chair of the body who is charged with applying the rules of conduct of the meeting. The chair should be well versed in those rules. For all intents and purposes, the chair makes the final ruling on the rules every time the chair states an action. In fact, all decisions by the chair are final unless overruled by the body itself.
Since the chair runs the conduct of the meeting, it is usual courtesy for the chair to play a less active role in the debate and discussion than other members of the body. This does not mean that the chair should not participate in the debate or discussion. To the contrary, as a member of the body, the chair has the full right to participate in the debate, discussion and decision-making of the body. What the chair should do, however, is strive to be the last to speak at the discussion and debate stage. The chair should not make or second a motion unless the chair is convinced that no other member of the body will do so at that point in time.
The Basic Format for an Agenda Item Discussion
Formal meetings normally have a written, often published agenda.
Informal meetings may have only an oral or understood agenda. In either case, the meeting is governed by the agenda and the agenda constitutes the body’s agreed-upon roadmap for the meeting. Each agenda item can be handled by the chair in the following basic format:
Introduction
The rules of procedure at meetings should be simple enough for most people to understand. Unfortunately, that has not always been the case. Virtually all clubs, associations, boards, councils and bodies follow a set of rules — Robert’s Rules of Order — which are embodied in a small, but complex, book. Virtually no one I know has actually read this book cover to cover. Worse yet, the book was written for another time and for another purpose. If one is chairing or running a parliament, then Robert’s Rules of Order is a dandy and quite useful handbook for procedure in that complex setting. On the other hand, if one is running a meeting of say, a five-member body with a few members of the public in attendance, a simplified version of the rules of parliamentary procedure is in order.
Hence, the birth of Rosenberg’s Rules of Order.
What follows is my version of the rules of parliamentary procedure, based on my decades of experience chairing meetings in state and local government. These rules have been simplified for the smaller bodies we chair or in which we participate, slimmed down for the 21st Century, yet retaining the basic tenets of order to which we have grown accustomed. Interestingly enough, Rosenberg’s Rules has found a welcoming audience. Hundreds of cities, counties, special districts, committees, boards, commissions, neighborhood associations and private corporations and companies have adopted Rosenberg’s Rules in lieu of Robert’s Rules because they have found them practical, logical, simple, easy to learn and user friendly.
This treatise on modern parliamentary procedure is built on a foundation supported by the following four pillars:
1. Rules should establish order. The first purpose of rules of parliamentary procedure is to establish a framework for the orderly conduct of meetings.
2. Rules should be clear. Simple rules lead to wider understanding and participation. Complex rules create two classes: those who understand and participate; and those who do not fully understand and do not fully participate.
3. Rules should be user friendly. That is, the rules must be simple enough that the public is invited into the body and feels that it has participated in the process.
4. Rules should enforce the will of the majority while protecting the rights of the minority. The ultimate purpose of rules of procedure is to encourage discussion and to facilitate decision making by the body. In a democracy, majority rules. The rules must enable the majority to express itself and fashion a result, while permitting the minority to also express itself, but not dominate, while fully participating in the process.
Agenda Item #11.1.
3 Ninth, the chair takes a vote. Simply asking for the “ayes” and then asking for the “nays” normally does this. If members of the body do not vote, then they “abstain.” Unless the rules of the body provide otherwise (or unless a super majority is required as delineated later in these rules), then a simple majority (as defined in law or the rules of the body as delineated later in these rules) determines whether the motion passes or is defeated.
Tenth, the chair should announce the result of the vote and what action (if any) the body has taken. In announcing the result, the chair should indicate the names of the members of the body, if any, who voted in the minority on the motion. This announcement might take the following form: “The motion passes by a vote of 3-2, with Smith and Jones dissenting. We have passed the motion requiring a 10-day notice for all future meetings of this body.”
Motions in General
Motions are the vehicles for decision making by a body. It is usually best to have a motion before the body prior to commencing discussion of an agenda item. This helps the body focus.
Motions are made in a simple two-step process. First, the chair should recognize the member of the body. Second, the member of the body makes a motion by preceding the member’s desired approach with the words “I move … ”
A typical motion might be: “I move that we give a 10-day notice in the future for all our meetings.”
The chair usually initiates the motion in one of three ways:
1. Inviting the members of the body to make a motion, for example, “A motion at this time would be in order.”
2. Suggesting a motion to the members of the body, “A motion would be in order that we give a 10-day notice in the future for all our meetings.”
3. Making the motion. As noted, the chair has every right as a member of the body to make a motion, but should normally do so only if the chair wishes to make a motion on an item but is convinced that no other member of the body is willing to step forward to do so at a particular time.
The Three Basic Motions
There are three motions that are the most common and recur often at meetings:
The basic motion. The basic motion is the one that puts forward a decision for the body’s consideration. A basic motion might be: “I move that we create a five-member committee to plan and put on our annual fundraiser.”
First, the chair should clearly announce the agenda item number and should clearly state what the agenda item subject is. The chair should then announce the format (which follows) that will be followed in considering the agenda item.
Second, following that agenda format, the chair should invite the appropriate person or persons to report on the item, including any recommendation that they might have. The appropriate person or persons may be the chair, a member of the body, a staff person, or a committee chair charged with providing input on the agenda item.
Third, the chair should ask members of the body if they have any technical questions of clarification. At this point, members of the body may ask clarifying questions to the person or persons who reported on the item, and that person or persons should be given time to respond.
Fourth, the chair should invite public comments, or if appropriate at a formal meeting, should open the public meeting for public input.
If numerous members of the public indicate a desire to speak to the subject, the chair may limit the time of public speakers. At the conclusion of the public comments, the chair should announce that public input has concluded (or the public hearing, as the case may be, is closed).
Fifth, the chair should invite a motion. The chair should announce the name of the member of the body who makes the motion.
Sixth, the chair should determine if any member of the body wishes to second the motion. The chair should announce the name of the member of the body who seconds the motion. It is normally good practice for a motion to require a second before proceeding to ensure that it is not just one member of the body who is interested in a particular approach. However, a second is not an absolute requirement, and the chair can proceed with consideration and vote on a motion even when there is no second. This is a matter left to the discretion of the chair.
Seventh, if the motion is made and seconded, the chair should make sure everyone understands the motion.
This is done in one of three ways:
1. The chair can ask the maker of the motion to repeat it;
2. The chair can repeat the motion; or
3. The chair can ask the secretary or the clerk of the body to repeat the motion.
Eighth, the chair should now invite discussion of the motion by the body. If there is no desired discussion, or after the discussion has ended, the chair should announce that the body will vote on the motion. If there has been no discussion or very brief discussion, then the vote on the motion should proceed immediately and there is no need to repeat the motion. If there has been substantial discussion, then it is normally best to make sure everyone understands the motion by repeating it.
Agenda Item #11.1.
4 First, the chair would deal with the third (the last) motion on the floor, the substitute motion. After discussion and debate, a vote would be taken first on the third motion. If the substitute motion passed, it would be a substitute for the basic motion and would eliminate it. The first motion would be moot, as would the second motion (which sought to amend the first motion), and the action on the agenda item would be completed on the passage by the body of the third motion (the substitute motion). No vote would be taken on the first or second motions.
Second, if the substitute motion failed, the chair would then deal with the second (now the last) motion on the floor, the motion to amend. The discussion and debate would focus strictly on the amendment (should the committee be five or 10 members). If the motion to amend passed, the chair would then move to consider the main motion (the first motion) as amended. If the motion to amend failed, the chair would then move to consider the main motion (the first motion) in its original format, not amended.
Third, the chair would now deal with the first motion that was placed on the floor. The original motion would either be in its original format (five-member committee), or if amended, would be in its amended format (10-member committee). The question on the floor for discussion and decision would be whether a committee should plan and put on the annual fundraiser.
To Debate or Not to Debate
The basic rule of motions is that they are subject to discussion and debate. Accordingly, basic motions, motions to amend, and substitute motions are all eligible, each in their turn, for full discussion before and by the body. The debate can continue as long as members of the body wish to discuss an item, subject to the decision of the chair that it is time to move on and take action.
There are exceptions to the general rule of free and open debate on motions. The exceptions all apply when there is a desire of the body to move on. The following motions are not debatable (that is, when the following motions are made and seconded, the chair must immediately call for a vote of the body without debate on the motion):
Motion to adjourn. This motion, if passed, requires the body to immediately adjourn to its next regularly scheduled meeting. It requires a simple majority vote.
Motion to recess. This motion, if passed, requires the body to immediately take a recess. Normally, the chair determines the length of the recess which may be a few minutes or an hour. It requires a simple majority vote.
Motion to fix the time to adjourn. This motion, if passed, requires the body to adjourn the meeting at the specific time set in the motion. For example, the motion might be: “I move we adjourn this meeting at midnight.” It requires a simple majority vote.
The motion to amend. If a member wants to change a basic motion that is before the body, they would move to amend it. A motion to amend might be: “I move that we amend the motion to have a 10-member committee.” A motion to amend takes the basic motion that is before the body and seeks to change it in some way.
The substitute motion. If a member wants to completely do away with the basic motion that is before the body, and put a new motion before the body, they would move a substitute motion. A substitute motion might be: “I move a substitute motion that we cancel the annual fundraiser this year.”
“Motions to amend” and “substitute motions” are often confused, but they are quite different, and their effect (if passed) is quite different.
A motion to amend seeks to retain the basic motion on the floor, but modify it in some way. A substitute motion seeks to throw out the basic motion on the floor, and substitute a new and different motion for it. The decision as to whether a motion is really a “motion to amend” or a “substitute motion” is left to the chair. So if a member makes what that member calls a “motion to amend,” but the chair determines that it is really a “substitute motion,” then the chair’s designation governs.
A “friendly amendment” is a practical parliamentary tool that is simple, informal, saves time and avoids bogging a meeting down with numerous formal motions. It works in the following way: In the discussion on a pending motion, it may appear that a change to the motion is desirable or may win support for the motion from some members. When that happens, a member who has the floor may simply say, “I want to suggest a friendly amendment to the motion.” The member suggests the friendly amendment, and if the maker and the person who seconded the motion pending on the floor accepts the friendly amendment, that now becomes the pending motion on the floor. If either the maker or the person who seconded rejects the proposed friendly amendment, then the proposer can formally move to amend.
Multiple Motions Before the Body
There can be up to three motions on the floor at the same time.
The chair can reject a fourth motion until the chair has dealt with the three that are on the floor and has resolved them. This rule has practical value. More than three motions on the floor at any given time is confusing and unwieldy for almost everyone, including the chair.
When there are two or three motions on the floor (after motions and seconds) at the same time, the vote should proceed first on the last motion that is made. For example, assume the first motion is a basic “motion to have a five-member committee to plan and put on our annual fundraiser.” During the discussion of this motion, a member might make a second motion to “amend the main motion to have a 10-member committee, not a five-member committee to plan and put on our annual fundraiser.” And perhaps, during that discussion, a member makes yet a third motion as a “substitute motion that we not have an annual fundraiser this year.” The proper procedure would be as follows:
Agenda Item #11.1.
5 Motion to close nominations. When choosing officers of the body (such as the chair), nominations are in order either from a nominating committee or from the floor of the body. A motion to close nominations effectively cuts off the right of the minority to nominate officers and it requires a two-thirds vote to pass.
Motion to object to the consideration of a question. Normally, such a motion is unnecessary since the objectionable item can be tabled or defeated straight up. However, when members of a body do not even want an item on the agenda to be considered, then such a motion is in order. It is not debatable, and it requires a two-thirds vote to pass.
Motion to suspend the rules. This motion is debatable, but requires a two-thirds vote to pass. If the body has its own rules of order, conduct or procedure, this motion allows the body to suspend the rules for a particular purpose. For example, the body (a private club) might have a rule prohibiting the attendance at meetings by non-club members. A motion to suspend the rules would be in order to allow a non-club member to attend a meeting of the club on a particular date or on a particular agenda item.
Counting Votes
The matter of counting votes starts simple, but can become complicated.
Usually, it’s pretty easy to determine whether a particular motion passed or whether it was defeated. If a simple majority vote is needed to pass a motion, then one vote more than 50 percent of the body is required. For example, in a five-member body, if the vote is three in favor and two opposed, the motion passes. If it is two in favor and three opposed, the motion is defeated.
If a two-thirds majority vote is needed to pass a motion, then how many affirmative votes are required? The simple rule of thumb is to count the “no” votes and double that count to determine how many “yes” votes are needed to pass a particular motion. For example, in a seven-member body, if two members vote “no” then the “yes” vote of at least four members is required to achieve a two-thirds majority vote to pass the motion.
What about tie votes? In the event of a tie, the motion always fails since an affirmative vote is required to pass any motion. For example, in a five-member body, if the vote is two in favor and two opposed, with one member absent, the motion is defeated.
Vote counting starts to become complicated when members vote “abstain” or in the case of a written ballot, cast a blank (or unreadable) ballot. Do these votes count, and if so, how does one count them? The starting point is always to check the statutes.
In California, for example, for an action of a board of supervisors to be valid and binding, the action must be approved by a majority of the board. (California Government Code Section 25005.) Typically, this means three of the five members of the board must vote affirmatively in favor of the action. A vote of 2-1 would not be sufficient. A vote of 3-0 with two abstentions would be sufficient. In general law cities in Motion to table. This motion, if passed, requires discussion of the agenda item to be halted and the agenda item to be placed on “hold.” The motion can contain a specific time in which the item can come back to the body. “I move we table this item until our regular meeting in October.” Or the motion can contain no specific time for the return of the item, in which case a motion to take the item off the table and bring it back to the body will have to be taken at a future meeting. A motion to table an item (or to bring it back to the body) requires a simple majority vote.
Motion to limit debate. The most common form of this motion is to say, “I move the previous question” or “I move the question” or “I call the question” or sometimes someone simply shouts out “question.” As a practical matter, when a member calls out one of these phrases, the chair can expedite matters by treating it as a “request” rather than as a formal motion. The chair can simply inquire of the body, “any further discussion?” If no one wishes to have further discussion, then the chair can go right to the pending motion that is on the floor.
However, if even one person wishes to discuss the pending motion further, then at that point, the chair should treat the call for the “question” as a formal motion, and proceed to it.
When a member of the body makes such a motion (“I move the previous question”), the member is really saying: “I’ve had enough debate. Let’s get on with the vote.” When such a motion is made, the chair should ask for a second, stop debate, and vote on the motion to limit debate. The motion to limit debate requires a two-thirds vote of the body.
Note: A motion to limit debate could include a time limit. For example: “I move we limit debate on this agenda item to 15 minutes.” Even in this format, the motion to limit debate requires a twothirds vote of the body. A similar motion is a motion to object to consideration of an item. This motion is not debatable, and if passed, precludes the body from even considering an item on the agenda. It also requires a two-thirds vote.
Majority and Super Majority Votes
In a democracy, a simple majority vote determines a question. A tie vote means the motion fails. So in a seven-member body, a vote of 4-3 passes the motion. A vote of 3-3 with one abstention means the motion fails. If one member is absent and the vote is 3-3, the motion still fails.
All motions require a simple majority, but there are a few exceptions.
The exceptions come up when the body is taking an action which effectively cuts off the ability of a minority of the body to take an action or discuss an item. These extraordinary motions require a two-thirds majority (a super majority) to pass:
Motion to limit debate. Whether a member says, “I move the previous question,” or “I move the question,” or “I call the question,” or “I move to limit debate,” it all amounts to an attempt to cut off the ability of the minority to discuss an item, and it requires a two-thirds vote to pass.
Agenda Item #11.1.
6 Now, exactly how does a member cast an “abstention” vote? Any time a member votes “abstain” or says, “I abstain,” that is an abstention. However, if a member votes “present” that is also treated as an abstention (the member is essentially saying, “Count me for purposes of a quorum, but my vote on the issue is abstain.”) In fact, any manifestation of intention not to vote either “yes” or “no” on the pending motion may be treated by the chair as an abstention. If written ballots are cast, a blank or unreadable ballot is counted as an abstention as well.
Can a member vote “absent” or “count me as absent?” Interesting question. The ruling on this is up to the chair. The better approach is for the chair to count this as if the member had left his/her chair and is actually “absent.” That, of course, affects the quorum. However, the chair may also treat this as a vote to abstain, particularly if the person does not actually leave the dais.
The Motion to Reconsider
There is a special and unique motion that requires a bit of explanation all by itself; the motion to reconsider. A tenet of parliamentary procedure is finality. After vigorous discussion, debate and a vote, there must be some closure to the issue. And so, after a vote is taken, the matter is deemed closed, subject only to reopening if a proper motion to consider is made and passed.
A motion to reconsider requires a majority vote to pass like other garden-variety motions, but there are two special rules that apply only to the motion to reconsider.
First, is the matter of timing. A motion to reconsider must be made at the meeting where the item was first voted upon. A motion to reconsider made at a later time is untimely. (The body, however, can always vote to suspend the rules and, by a two-thirds majority, allow a motion to reconsider to be made at another time.)
Second, a motion to reconsider may be made only by certain members of the body. Accordingly, a motion to reconsider may be made only by a member who voted in the majority on the original motion. If such a member has a change of heart, he or she may make the motion to reconsider (any other member of the body — including a member who voted in the minority on the original motion — may second the motion). If a member who voted in the minority seeks to make the motion to reconsider, it must be ruled out of order. The purpose of this rule is finality. If a member of minority could make a motion to reconsider, then the item could be brought back to the body again and again, which would defeat the purpose of finality.
If the motion to reconsider passes, then the original matter is back before the body, and a new original motion is in order. The matter may be discussed and debated as if it were on the floor for the first time.
California, as another example, resolutions or orders for the payment of money and all ordinances require a recorded vote of the total members of the city council. (California Government Code Section 36936.) Cities with charters may prescribe their own vote requirements. Local elected officials are always well-advised to consult with their local agency counsel on how state law may affect the vote count.
After consulting state statutes, step number two is to check the rules of the body. If the rules of the body say that you count votes of “those present” then you treat abstentions one way. However, if the rules of the body say that you count the votes of those “present and voting,” then you treat abstentions a different way. And if the rules of the body are silent on the subject, then the general rule of thumb (and default rule) is that you count all votes that are “present and voting.” Accordingly, under the “present and voting” system, you would NOT count abstention votes on the motion. Members who abstain are counted for purposes of determining quorum (they are “present”), but you treat the abstention votes on the motion as if they did not exist (they are not “voting”). On the other hand, if the rules of the body specifically say that you count votes of those “present” then you DO count abstention votes both in establishing the quorum and on the motion. In this event, the abstention votes act just like “no” votes.
How does this work in practice?
Here are a few examples.
Assume that a five-member city council is voting on a motion that requires a simple majority vote to pass, and assume further that the body has no specific rule on counting votes. Accordingly, the default rule kicks in and we count all votes of members that are “present and voting.” If the vote on the motion is 3-2, the motion passes. If the motion is 2-2 with one abstention, the motion fails.
Assume a five-member city council voting on a motion that requires a two-thirds majority vote to pass, and further assume that the body has no specific rule on counting votes. Again, the default rule applies.
If the vote is 3-2, the motion fails for lack of a two-thirds majority. If the vote is 4-1, the motion passes with a clear two-thirds majority. A vote of three “yes,” one “no” and one “abstain” also results in passage of the motion. Once again, the abstention is counted only for the purpose of determining quorum, but on the actual vote on the motion, it is as if the abstention vote never existed — so an effective 3-1 vote is clearly a two-thirds majority vote.
Now, change the scenario slightly. Assume the same five-member city council voting on a motion that requires a two-thirds majority vote to pass, but now assume that the body DOES have a specific rule requiring a two-thirds vote of members “present.” Under this specific rule, we must count the members present not only for quorum but also for the motion. In this scenario, any abstention has the same force and effect as if it were a “no” vote. Accordingly, if the votes were three “yes,” one “no” and one “abstain,” then the motion fails. The abstention in this case is treated like a “no” vote and effective vote of 3-2 is not enough to pass two-thirds majority muster.
Agenda Item #11.1.
7 Appeal. If the chair makes a ruling that a member of the body disagrees with, that member may appeal the ruling of the chair. If the motion is seconded, and after debate, if it passes by a simple majority vote, then the ruling of the chair is deemed reversed.
Call for orders of the day. This is simply another way of saying, “return to the agenda.” If a member believes that the body has drifted from the agreed-upon agenda, such a call may be made. It does not require a vote, and when the chair discovers that the agenda has not been followed, the chair simply reminds the body to return to the agenda item properly before them. If the chair fails to do so, the chair’s determination may be appealed.
Withdraw a motion. During debate and discussion of a motion, the maker of the motion on the floor, at any time, may interrupt a speaker to withdraw his or her motion from the floor. The motion is immediately deemed withdrawn, although the chair may ask the person who seconded the motion if he or she wishes to make the motion, and any other member may make the motion if properly recognized.
Special Notes About Public Input
The rules outlined above will help make meetings very publicfriendly. But in addition, and particularly for the chair, it is wise to remember three special rules that apply to each agenda item:
Rule One: Tell the public what the body will be doing.
Rule Two: Keep the public informed while the body is doing it.
Rule Three: When the body has acted, tell the public what the body did.
Courtesy and Decorum
The rules of order are meant to create an atmosphere where the members of the body and the members of the public can attend to business efficiently, fairly and with full participation. At the same time, it is up to the chair and the members of the body to maintain common courtesy and decorum. Unless the setting is very informal, it is always best for only one person at a time to have the floor, and it is always best for every speaker to be first recognized by the chair before proceeding to speak.
The chair should always ensure that debate and discussion of an agenda item focuses on the item and the policy in question, not the personalities of the members of the body. Debate on policy is healthy, debate on personalities is not. The chair has the right to cut off discussion that is too personal, is too loud, or is too crude.
Debate and discussion should be focused, but free and open. In the interest of time, the chair may, however, limit the time allotted to speakers, including members of the body.
Can a member of the body interrupt the speaker? The general rule is “no.” There are, however, exceptions. A speaker may be interrupted for the following reasons:
Privilege. The proper interruption would be, “point of privilege.” The chair would then ask the interrupter to “state your point.” Appropriate points of privilege relate to anything that would interfere with the normal comfort of the meeting. For example, the room may be too hot or too cold, or a blowing fan might interfere with a person’s ability to hear.
Order. The proper interruption would be, “point of order.” Again, the chair would ask the interrupter to “state your point.” Appropriate points of order relate to anything that would not be considered appropriate conduct of the meeting. For example, if the chair moved on to a vote on a motion that permits debate without allowing that discussion or debate.
Agenda Item #11.1.
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Agenda Item #11.1.
From: Loraine Stuart
To: cityclerk
Subject: [External] Urgency Ordinance
Date: Tuesday, September 12, 2023 8:40:50 AM
Dear Mayor and Council,
I am writing in support of the Urgency Ordinance to provide a moratorium on permitting for demolition or expansion of building within the A-20 district in our City.
Please reconsider this action and allow the necessary time for updated measures.
Thank you,
Loraine Stuart
Agenda Item #11.1.
505 MONTGOMERY STREET, SUITE 620
SAN FRANCISCO, CA 94111
TELEPHONE: 415.814.6400
FACSIMILE: 415.814.6401
[email protected]
CHRISTINE R. WADE
DIRECT TEL: 415.243.2088
[email protected]
September 12, 2023
VIA ELECTRONIC MAIL
Ethan Walsh
City Attorney
1088 College Avenue
St. Helena, CA 94574
[email protected]
RE: PROPOSED URGENCY ORDINANCE
900 Fulton Lane, St Helena [APN 009-030-051-000]; and
855 Pratt Avenue, St Helena [APN 009-030-063-000] (the “Properties”) September 11, 2023 – City Council Meeting – Agenda Item – 11.1 Dear Mr. Walsh,
This firm represents the Owners of the above reference Properties and submits this comment letter on the Owners’ behalf.
The City Council may reconsider an urgency ordinance enacting a moratorium on entitlements for the demolition or expansion of existing residential units within the A-20 district (“Moratorium”). Staff acknowledged at the last meeting on this topic that only two projects and properties would be affected by this proposed Moratorium – 900 Fulton and 855 Pratt.
The City cannot meet the high bar required to justify an urgency ordinance, which is governed by Government Code Section 65858. To paraphrase the Attorney General’s recent guidance on this topic, a copy of which is attached for your convenience, an urgency ordinance must be supported by written findings that “there is a current and immediate threat to the public health, safety or welfare.” (Gov. Code § 65858(c).) Findings supporting an urgency ordinance must also document the nature of the threat to public safety, health or welfare. Examples of threats justifying an urgency ordinance include a project that would more than double the existing population in a county or that would radically alter the way of life of the community residents. (216 Sutter Bay Associates v. County of Sutter (1997) 58 Cal.App.4 th 860.
The City’s proposed findings do not meet these criteria, nor could they as the facts needed to support such findings do not exist here. There is no threat of harm to public health, safety and welfare. The findings do not, as required, identify with specificity the imminence and severity of the projected harm. The findings of the Moratorium state that it is intended to “protect the rural, small town quality and agricultural character” and “discourage conversion of existing farmland to non-agricultural uses.” Neither project affected by this Moratorium would cause either of these results.
Agenda Item #11.1.
ETHAN WALSH, CITY ATTORNEY
September 12, 2023
Both projects would replace a single-family home with another single-family home. The projects would not increase density in the area. Neither project would replace any existing agricultural uses with non-agricultural uses and in fact, would result in expansion of agricultural activities on both properties.
Moreover, there is no imminent threat to be averted, because the City already has a discretionary design review process by which it can impact the size, scope, design, and compatibility of the projects.
Finally, it is unreasonable to target a single landowner with punitive legislation especially after other similarly situated properties have been ushered through the process.
The merits of these projects should be considered individually, following the City’s procedures and with due process of law. The City has no basis for this Moratorium and if the Council proceeds with adopting it, it will not only be in violation of the Government Code but also due process.
Sincerely,
SSL LAW FIRM LLP
Christine R. Wade
Enclosure
cc: Planning Department
• Maya DeRosa (Director) - [email protected]
• Aaron Hecock (Senior Planner) - [email protected] City Council
• Paul Dohring (Mayor) - [email protected]
• Eric Hall (Vice Mayor) - [email protected]
• Anna Chouteau - [email protected]
• Lester Hardy - [email protected]
• Billy Summers - [email protected]
City Manager
• Anil Comelo - [email protected]
Agenda Item #11.1.
July 17, 2023
To: All Cities and Counties in California
Dear Colleagues:
In recent years, the Legislature has passed several laws responding to California’s housing crisis by mandating that local governments ministerially approve proposed housing developments under certain circumstances. Such laws include (but are not limited to) Senate Bill 9 (SB 9) (Gov. Code §§ 65852.21, 66411.7), which took effect January 1, 2022, and addresses lot splits and duplexes in single-family zoned neighborhoods, and Assembly Bill 2011 (AB 2011), which takes effect July 1, 2023, and addresses affordable housing permitting on commercial zoned land.
Following the enactment of SB 9, some local jurisdictions enacted “urgency zoning ordinances” aiming to restrict or impose additional requirements on projects that were otherwise subject to ministerial approval under SB 9. Interim urgency ordinances provide a procedural tool to quickly respond to an immediate threat to public health, safety, or welfare, and do not circumvent the substantive requirements of state housing laws such as SB 9 or AB 2011. This guidance reminds local jurisdictions of the strict state law requirements that apply to the enactment of urgency ordinances. The Attorney General encourages local jurisdictions to review their existing urgency ordinances for validity, and properly implement California’s housing laws moving forward.
Analysis
A. Legal Requirements for Urgency Ordinances
1. “Current and Immediate Threat to Public Health, Safety, or Welfare” Under limited emergency circumstances, local jurisdictions may pass urgency zoning ordinances that prohibit projects and land uses that conflict with a city’s planning or zoning. (Gov. Code, § 65858, subds. (a)-(c); see also 216 Sutter Bay Associates v. County of Sutter Agenda Item #11.1.
All Cities and Counties in California
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(1997) 58 Cal.App.4th 860, 869.)1 An urgency ordinance is initially valid for only 45 days, but can be extended for a total of two years, subject to the requirements discussed below. (§ 65858, subds. (a), (b).)
To be valid, urgency ordinances amending zoning regulations must be supported by written legislative findings that “there is a current and immediate threat to the public health, safety, or welfare, and that the approval of additional subdivisions, use permits, variances, building permits, or any other applicable entitlement for use which is required in order to comply with a zoning ordinance would result in that threat to public health, safety, or welfare.” (§ 65858, subd. (c).) Failure to make the showings required by Section 65858 renders an urgency ordinance invalid as a matter of law. (California Charter Schools Assn. v. City of Huntington Park (2019) 35 Cal.App.5th 362, 365.) Urgency ordinances must be adopted by a four-fifths vote. (§ 65858, subds. (a), (b).)
The legislative findings must establish a threat to the public health, safety, or welfare that is current and immediate. (§ 65858, subd. (c); Building Industry Legal Defense Foundation v.
Superior Court (1999) 72 Cal.App.4th 1410.) Courts have generally found that the immediacy requirement is satisfied in “situations where local agencies were faced with immediate threats of development.” (Id. at p. 1419, citing 216 Sutter Bay Associates v. County of Sutter (1997) 58 Cal.App.4th 860; Conway v. City of Imperial Beach (1997) 52 Cal.App.4th 78; Metro Realty v.
County of El Dorado (1963) 222 Cal.App.2d 508.) Urgency ordinances are intended to be limited “to situations where an approval of an entitlement of use was imminent.” (Building Industry, supra, 72 Cal.App.4th at pp. 1418–1419; accord California Charter Schools Assn., supra, 35 Cal.App.5th at p. 370; Crown Motors v. City of Redding (1991) 232 Cal.App.3d 173, 179–180 [a pending permit application would constitute an immediate threat because, absent an urgency ordinance, the permit at issue would have been approved within 30 days].) Local jurisdictions must provide evidence documenting the immediacy of the threat to public health, safety, or welfare. In California Charter Schools Assn. v. City of Huntington Park, Huntington Park enacted an urgency ordinance that temporarily barred development of new charter schools while the City considered amending its zoning code. (California Charter Schools Assn. v. City of Huntington Park (2019) 35 Cal.App.5th 362, 365.) Huntington Park claimed that new charter schools would increase traffic and prevent the development of commercial taxgenerating properties, which posed an immediate threat to public health, safety, or welfare. (Id. at p. 366.) As evidence for its claim, Huntington Park proffered “at least five inquiries” it had received requesting charter schools and “several serious sit down discussions” it had conducted with charter school representatives. (Id. at p. 369.) Upon reviewing this evidence, the Court concluded that “mere inquiries, requests, and meetings do not constitute a current and immediate threat within the meaning of [section 65858,] subdivision (c).” (Id. at p. 371.) Local jurisdictions are therefore required to show an actual imminent threat to the public health, safety, or welfare and make specific supportive factual findings. An urgency ordinance that is not supported by a sufficient showing of an immediate threat to public safety, health, or welfare is invalid as a matter of law. (Id. at p. 365.)
1 Statutory references that follow are to the Government Code unless otherwise stated.
Agenda Item #11.1.
All Cities and Counties in California
July 17, 2023
An urgency ordinance’s findings must also document the nature of the threat to public health, safety, or welfare. In 216 Sutter Bay Associates v. County of Sutter, the County justified its urgency ordinance by showing that a proposed amendment to the general plan would create a new 140,000-person community in a county of only 65,000, and that an urgency ordinance was needed to preserve a countywide vote on the proposed amendment. (216 Sutter Bay Associates, supra, 58 Cal.App.4th at p. 864.) The Court of Appeal in Sutter Bay held that the County’s showing that the amendment “could alter—in a radical and fundamental manner—the current way of life for Sutter County residents” satisfied the findings required by Section 65858. (Id. at p. 868.) By contrast, statements about the uncertainty of implementation of a new state housing law or generalized concerns about visual or aesthetic standards are insufficient to support an urgency ordinance.
2. Extension of Urgency Ordinance Beyond Initial 45 Days: “Objective, identified written public health or safety standards, policies, or conditions” An urgency ordinance that “has the effect of denying approvals needed for the development of projects with a significant component of multifamily housing,” defined as onethird of the total square footage of the project, is subject to additional requirements upon its extension. (§ 65858, subds. (c), (h).) Such ordinances may not be extended beyond the initial 45 days except upon written findings adopted by the legislative body, supported by substantial evidence in the record, of a “specific, adverse impact upon the public health and safety,” which is defined as “a significant, quantifiable, direct, and unavoidable impact based on objective, identified written public health or safety standards, policies, or conditions” existing at the time that the urgency ordinance is adopted. (§ 65858, subd. (c)(1)). The findings must further demonstrate that there is no feasible alternative that would mitigate or avoid the adverse impact “as well or better, with a less burdensome or restrictive effect,” than the urgency ordinance. (§ 65858, subd. (c)(3).) In addition, a city must “issue a written report describing the measures taken to alleviate the condition which led to the adoption of the ordinance” at least ten days before its extension. (§ 65858, subd. (d).)
This provision applying to urgency ordinances that would deny multifamily housing development would likely apply to interim ordinances responding to SB 9 and AB 2011. SB 9’s provisions allowing for duplexes would entail multifamily development and AB 2011 is specifically directed to multifamily housing.
Local jurisdictions must make these findings with enough specificity to support an adverse impact. In Hoffman Street, LLC. v. City of West Hollywood¸ developer petitioners sought a writ of mandate against West Hollywood for enacting an urgency ordinance that barred petitioners from developing a condominium project. (Hoffman Street, LLC. v. City of West Hollywood (2009) 179 Cal.App.4th 754.) West Hollywood’s urgency ordinance, which limited permitting in certain zones to increase density and affordability, was based on the claim that “‘the significant unmet need for smaller affordable housing units [is] posing a current and immediate threat to the public health, safety and welfare.’” (Id. at pp. 760–761.) The Court noted that the requirements for urgency ordinances limiting multifamily development under subsection (c)(1) of section 65858 are “more extensive and more specific than the findings required upon the adoption or extension of any interim ordinance.” (Id. at p. 771.) The Court held that West Agenda Item #11.1.
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Hollywood’s findings “failed to identify ‘a specific, adverse impact on the public health or safety.” (Id. at p. 772, emphasis added.) West Hollywood’s findings also “failed to identify any ‘written public health or safety standards, policies, or conditions’ on which such an impact would be based.” (Ibid., citing § 65858, subd. (c)(1).)
Therefore, the findings supporting an urgency ordinance extension that affects multifamily housing must be specifically targeted to the issues arising on particular parcels that create the adverse public health and safety impact.
B. Recently Enacted State Housing Laws Limiting Local Discretion Urgency ordinances provide a procedural tool to respond to current and immediate public health and safety threats, but they do not provide an avenue to avoid the substantive application of relevant state law. The passage of laws like SB 9 and AB 2011 does not, in and of itself, pose a current and immediate threat to public health, safety, or welfare. Accordingly, the enactment of such a law generally cannot — standing alone — support an urgency ordinance.
As described below, California’s housing laws generally empower local jurisdictions to regulate or deny projects on a case-by-case basis based on specific health or safety grounds, without an urgency ordinance. For example, SB 9 expressly allows local agencies to deny permits upon written objective findings addressing public health and safety and AB 2011 allows jurisdictions to exempt some parcels from its requirements under specified conditions. Urgency ordinances are unsupportable when public health and safety concerns arising from a permit application can be addressed without an urgency ordinance.
1. SB 9
SB 9, which took effect on January 1, 2022, enacted Government Code sections 65852.21 and 66411.7. Together, these sections allow property owners to build duplexes on single-family lots and split single-family lots in two. Importantly, both sections expressly bar SB 9’s application to potentially dangerous areas such as very high fire hazard severity zones, special flood hazard areas, and earthquake fault zones. SB 9 incorporates these safety exemptions from SB 35, another housing law requiring ministerial approval of some housing applications that was passed in 2017. (§§ 65852.21(a)(2), 664117(a)(3)(C) [incorporating the requirements of § 65913.4, subds. (a)(6)(B)-(a)(6)(K)].)
a. Section 65852.21 (Duplexes)
Government Code section 65852.21 provides that proposed housing projects of two residential units located on a single-family residential zone will be reviewed ministerially, without discretionary review, if they meet specific criteria, such as being located within a city. (§ 65852.21.) Local jurisdictions may impose on such projects objective zoning, subdivision, and design review standards, defined as standards devoid of “personal or subjective judgment by a public official” and that “are uniformly verifiable by reference to an external and uniform benchmark or criterion available and knowable by both the development applicant or proponent and the public official prior to submittal.” (§ 65852.21, subd. (i)(2).) Agenda Item #11.1.
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Local jurisdictions may deny housing project applications under SB 9 if they make a “written finding, based upon a preponderance of the evidence, that the proposed housing development project would have a specific, adverse impact … upon public health and safety or the physical environment.” (§ 65852.21, subd. (d).) Central to this power to deny is the “specific, adverse impact,” which is defined by Government Code section 65589.5 as “a significant, quantifiable, direct, and unavoidable impact, based on objective, identified written public health or safety standards, policies, or conditions as they existed on the date the application was deemed completed.” (§ 65589.5, subd. (d)(2), incorporated by reference in § 65852.21.) In light of the fact that section 65852.21 authorizes local jurisdictions to deny individual duplex applications based on findings that the project would have an adverse impact on health and safety or the environment, an urgency ordinance seeking to restrict all such projects across the board cannot be justified.
b. Section 66411.7 (Lot Splits)
Government Code section 66411.7 requires local jurisdictions to ministerially review requests to split urban single-family lots into two approximately equal parcels, if those lots meet specific requirements. (§ 66411.7.) Lots created in this manner shall be exclusively for residential purposes. (§ 66411.7, subd. (f).) Local jurisdictions may impose objective zoning, subdivision, and design standards on such projects unless such standards “physically preclude[e] the construction of two units on either of the resulting parcels or that would result in a unit size of less than 800 square feet.” (§ 66411.7, subd. (c)(1)(2).) As with duplexes, local jurisdictions may deny requests to split lots when the relevant official makes written objective findings that the lot split would have a specific and adverse impact on public health and safety or the physical environment. (§ 66411.7, subd. (d).) Thus section 66411.7, like section 65589.21, offers local jurisdictions a case-by-case instrument for preserving their public health, safety, and physical environment and there can be no justification for an urgency ordinance with a broad exemption.
2. AB 2011
AB 2011 requires ministerial review for affordable housing projects located in commercial zones. Specifically, it provides ministerial approval for two types of projects: (1) projects that provide entirely (100%) affordable multifamily housing and are in an urban infill area that is zoned commercial (§ 65912.114), and (2) projects that provide mixed-income housing, with a certain percentage of affordability, and are located along commercial corridors in urban infill areas (§ 65912.124).
Like SB 9, AB 2011 is not applicable in potentially dangerous areas such as very high fire hazard severity zones, special flood hazard areas, and earthquake fault zones. (§§ 65912.111, subd. (e), 65912.121, subd. (g).) Like SB 9, these sections accomplish this by incorporating the requirements of section 65913.4, subdivisions (a)(6)(B) through (a)(6)(K). In addition, AB 2011 provides specific requirements to assess and mitigate environmental hazards. (§§ 65912.113, Agenda Item #11.1.
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subd. (c), 65912.123, subd. (f).) Also, a local jurisdiction may exempt parcels from AB 2011 if it makes available other replacement parcels for development, at specified densities and subject to other provisions of AB 2011, and makes findings that the replacement results in no net loss of total zoned capacity or zoned capacity for affordable units and affirmatively furthers fair housing. (§§ 65912.114, subd. (i), 65912.124, subd. (i).) AB 2011 delayed operation of its provisions for nine months, which provided local jurisdictions ample opportunity to utilize this exemption before applying AB 2011 to project applications. All these provisions allow jurisdictions to protect public health, safety, and physical environment, provided that they contribute to increasing California’s housing supply and affirmatively further fair housing. A generalized urgency ordinance in response to AB 2011 is unnecessary.
C. Conclusion
Where state housing laws expressly authorize local governments to deny specific proposed projects based on health and safety concerns, as SB 9 does, or exempt specific properties from its ambit, as AB 2011 does, it is unclear how the high bar for an urgency ordinance can be satisfied.
The mere fact that a state law provides for a ministerial — as opposed to discretionary — review process does not, standing alone, establish the type of immediate threat to public health, safety, or welfare required to justify an urgency ordinance. Further, an interim urgency ordinance is a procedural tool to expeditiously adopt local regulations pending a city’s contemplated plan adoption or zoning ordinance. Such an ordinance must comply with the substantive requirements of state housing laws and cannot be used in an attempt to circumvent substantive legal requirements.
Local jurisdictions are urged to review any existing urgency ordinances for compliance with the requirements of section 65858, and repeal urgency ordinances that do not comply with these standards. Where needed, jurisdictions are encouraged to use their existing authority under state housing laws to review individual projects on health and safety grounds, rather than enacting overly broad and legally unjustifiable urgency ordinances. If implementation of a ministerial housing approval statute poses an immediate, current, and substantiated public health and safety threat, local legislative bodies must make the requisite written findings to justify an urgency ordinance. Given that such an ordinance likely would impact multifamily housing, findings supporting an extension must also satisfy the heightened standards applicable under Section 65858(c)(1)-(3) of establishing “a significant, quantifiable, direct, and unavoidable impact based on objective, identified written public health or safety standards, policies, or conditions.” Developers, property owners, and permit applicants are advised that jurisdictions with insufficiently supported urgency ordinances are vulnerable to legal challenge under existing case law.
Sincerely,
ROB BONTA
Attorney General
Agenda Item #11.1.