HomeMy WebLinkAboutAGENDA REPORT 1994 0921 CC REG ITEM 09A• I 1 L. ! �V 1 ~ w
A COMPILATION OF INFORMATION PREVIOUSLY
PROVIDED TO THE COUNCIL HAS BEEN INCLUDED
IN THE COUNTER AND LIBRARY COPIES OF THE
AGENDA.
rz
M E M O R A N D U M
TO: The Honorable City Council
FROM: Jaime Aguilera, Director of Community Development
Deborah S. Traffenstedt, Senior Planner �yT
DATE: September 1, 1994
SUBJECT: INFORMATION PREVIOUSLY PROVIDED TO THE CITY COUNCIL
PERTAINING TO CONSIDERATION OF NEW GROWTH MANAGEMENT
ORDINANCE
At the August 17, 1994, City Council meeting, the Council
considered a new draft Growth Management Ordinance, closed the
public hearing, and requested that staff assemble and redistribute
to the Council all information previously provided to the Council
that pertains to the new draft ordinance. Staff reports, staff
memorandums, and correspondence from the public are attached. City
Attorney correspondence will be provided to the Council under
separate cover.
Staff has scheduled continued discussion of the new Growth
Management Ordinance for the Council's September 21, 1994, meeting.
Attachments:
Staff Reports and Staff Memorandums
Correspondence from the Public
cc: Steven Kueny, City Manager
Cheryl Kane, City Attorney
Lillian Hare, City Clerk
STAFF REPORTS AND MEMORANDUMS
FILE COPY
M E M O R A N D U M
TO: The Honorable City Council
FROM: Jaime Aguilera, Director of Community Developmegp'-�
DATE: June 27, 1994
SUBJECT: NEW GROWTH MANAGEMENT ORDINANCE
The public hearing for the new growth management ordinance was
continued to the July 20, 1994, Council meeting. Attached is a
comparison table, which is intended to assist in the City Council's
review of the proposed new growth management ordinance. The
attached table compares the draft ordinance to existing Measure F.
The differences between the existing and proposed growth management
ordinances are only briefly summarized in the attached table. The
primary difference between the two ordinances is the proposed
change to the development allotment award process, including the
proposed bonus point system.
If you have any questions regarding the proposed ordinance, please
contact me.
Attachment: Comparison Table
JRA /DST
cc: Steven Rueny, City Manager
Lillian Hare, City Clerk
C
TO:
FROM:
DATE:
A G E N D A R E P O R T
CITY O.F M 0 0 R P A R K
The Honorable City Council
ITEM7• 6•
v 4,1Z-Z
Jaime Aguilera, Director of Community Develo pm en
Deborah S. Traffenstedt, Senior Planner -D6-r
April 28, 1994 (CC Meeting of 5 -4 -94)
SUBJECT: CONSIDER DRAFT GROWTH MANAGEMENT ORDINANCE DEVELOPED BY
AD HOC COMMITTEE, AND AS REVISED BY STAFF TO INCORPORATE
CITY ATTORNEY COMMENTS,
Background
A City Council public hearing was held on March 23, 1994, to
consider the draft growth management ordinance developed by an Ad
Hoc Committee. At that public hearing, staff was given the
following direction: 1) schedule a subsequent public hearing on
May 4, 1994; 2 ) obtain additional City Attorney comments on the
draft ordinance and on a letter received from the Building Industry
Association (BIA); 3) make revisions to the draft ordinance to
respond to the City Attorney's prior 'comments; 4) contact the
School district and Waterworks District No. 1 and invite
appropriate representatives to the next hearing; and 4) advertise
the continued public hearing and opportunity for public comment.
Staff has responded to all of the Council's directives as discussed
below.
Discussion
Attached to this report is a revised draft ordinance which includes
minor corrections to Sections 1, 5 and 6, as shown by "redline" and
"strikeout" shading. Those minor revisions were made in response
to comments. received from the City Attorney prior to the last
public hearing in March. Subsequent to that hearing, additional
comments regarding the BIA letter, California Environmental Quality
Act (CEQA) clearance, and legal defensibility were received from
the City Attorney, and those comments have been provided to the
Council under separate cover.
Staff is requesting Council direction regarding whether an Initial
Study (pursuant to CEQA) should be prepared by staff based on the
current draft ordinance, or whether staff should delay preparation
of an Initial Study and the environmental clearance document until
after the Council has provided preliminary comments to staff
regarding those sections of the ordinance that would determine
future housing supply. The language in the draft ordinance
pertaining to exemptions, limitations on yearly development
allocations and building permits, and limitations on carryover
allocations, would determine future housing supply. Regional
The Honorable City Council
April 28, 1994
Page 2
housing supply cannot be shown to be significantly impacted by a
growth management ordinance, or the validity of that ordinance
could be easily challenged.
If the conclusion of the Initial Study is that the proposed
ordinance would not significantly impact the environment, then a
Negative Declaration would be prepared, and a minimum 21 -day public
notice and review period would be required.
For the Council's information, staff advertised the May 4 public
hearing by placing an approximately one - fourth page ad in the
Moorpark News Mirror, by publishing and posting a standard public
hearing notice, and by placing a scroll ad on the City's cable
channel.
Staff also sent letters to Tom Duffy, Moorpark Unified School
District, and Reddy Pakala, Waterworks District No. 1, inviting
their attendance at the May 4 public hearing. Mr. Duffy's
secretary has verbally confirmed that he will be in attendance.
Staff has also received verbal confirmation from Mr. Pakala that he
will attend.
Recommendation
Continue to accept public testimony on the draft growth management
ordinance, and provide direction to staff regarding preparation of
an Initial Study and the scheduling of a subsequent City Council
public hearing.
Attachment: Revised Draft Growth Management Ordinance
C
DRAFT
ORDINANCE NO.
AN ORDINANCE OF THE CITY OF
MOORPARK, CALIFORNIA, ESTABLISHING
A GROWTH MANAGEMENT SYSTEM
WHEREAS, Initiative Ordinance Measure F was adopted by the
voters of the City of Moorpark in November 1986, and established a
Residential Development Management System; and
WHEREAS, Initiative Ordinance Measure F includes a provision
for termination as of December 31, 1995; and
WHEREAS, Initiative Ordinance Measure F was adopted in
response to a period of intense residential development in the City
of Moorpark which adversely affected the capacity of the streets
and local freeway system to meet traffic demands, the capacity of
appropriate schools to absorb children, the suburban -rural
character of-the community, the quality of life prevalent in the
City and its sphere of influence, and the cost to households of
some utilities and municipal services; and
WHEREAS, it is the intent of the City Council to achieve a
steady, rather than a fluctuating, 'overly rapid, rate of
residential growth each year, thereby minimizing the avoidable
costs of short - sighted facility expansion; and
WHEREAS, managed residential growth will ensure that the
services provided by City, School, Utility and /or service agencies
operating in the city can be properly and effectively staged in a
manner which will not overextend existing facilities, as well as
ensure that deficient services can be brought up to required and
necessary standards; and
WHEREAS, it is the intent of the City of Moorpark to establish
control over. the quality, distribution, rate, and economic level of
residential growth in the city on a year -to -year basis in order to:
• Preserve the suburban -rural character of the
community;
• Protect the agricultural land and open space of the
City;
• Provide a suitable living environment for all
citizens of the City;
• Ensure the adequacy of municipal, school, utility,
recreation and park facilities and services;
dst- 04- 28- 9412r05pmcr \WP51 \ORD \CROWTH.ORD
Ordinance No.
Page 2
• Attain a balances. City growth pattern which
includes a full mix of land uses;
• Provide a variety of housing types and
opportunities for all economic segments of the
community;
• Prevent further significant deterioration in the
local air quality;
• Ensure that the traffic demands do not exceed the
capacity of streets, highways, and freeways;
• Maintain consistency with adopted Ventura County
population forecasts for the Moorpark growth and
non - growth areas; and
WHEREAS,- the City of Moorpark has considered the effect of
this ordinance on the housing needs of the region in which it is
situated and has balanced those needs against the public service
needs of its residents and available fiscal and environmental
resources. It is hereby found and determined that this ordinance
will not reduce the housing opportunities of the region and this
ordinance is compatible with the state housing goal and regional
housing needs. It is further found and determined that, to the
extent this ordinance may be determined to reduce the housing
opportunities of the region, the findings contained herein as to
the public health, safety and welfare of the city to be promoted by
the adoption of this ordinance, justify any such reduction in the
housing opportunities of the region; and
WHEREAS, this ordinance is consistent with the goals and
policies of the City of Moorpark General Plan and City Ordinances
relating to the regulation of residential development;
NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF MOORPARK,
CALIFORNIA, DOES ORDAIN AS FOLLOWS:
SECTION 1. FINDINGS
The following findings justify the adoption of this ordinance
by the City of Moorpark in order to protect the public health,
safety and welfare:
A. Growth management is consistent with goal, policy and
implementation language in the City's General Plan, which
address the need for balanced community growth patterns;
maintaining suburban rural community character; and
preservation of important, natural features, agricultural
areas, and visually prominent hillside areas.
daC- 04- 28- 9412:05pmC:\wpsl\ORD\GROWTH.ORD
C
Ordinance No.
Page 3
B. Growth management is consistent with the Ventura County
Air Quality Management Plan. The rate of population
growth is an integral assumption in the forecast of
future air pollutant emissions in the County. The County
of Ventura is currently a "non- attainment area" for ozone
based on the state and federal ozone standards.
C. Growth management is consistent with the 1978 Ventura
County 208 Water Quality Management Plan and the July
1993 Draft Ventura County Water Management Plan. Long-
term water availability is of concern for Ventura County.
The proper management of water as a limited resource is
vital to meet the current and future demands of urban,
industrial, agricultural, and other water uses.
Currently countywide water demand is greater than locally
available water. This condition has resulted in the
overdraft of groundwater resources and increasing
depbndence on imported water supplies. State imported
supplies depend on snowpack and rainfall. During the
recent drought, state water purveyors mandated use
cutbacks, making state water a somewhat unreliable
source. Local surface water supplies also suffer during
a drought and cannot supply water at volumes previously
supplied. These conditions point to the fact that even
several water sources cannot be relied upon to meet
countywide water demands during a drought. Current
conditions illustrate the need for growth management to
continue planning efforts to ensure an adequate and
reliable water supply in the short term, long term, and
during drought conditions.
D. Growth management is necessary to ensure the adequacy of
school facilities and services. Current state law
restrictions on the maximum amount of money that projects
can be conditioned to pay for schools does not ensure
that adequate school facilities and services will be
available when needed. Growth management allows a school
district to more accurately plan facilities and services
to meet projected needs.
E. Growth management is necessary to ensure that roadway and
transit facilities in the City and region are adequate to
accommodate demand without significant impacts to levels
of service. Currently several intersections in the City
are operating at inadequate levels of service based on
the City General Plan and Ventura County Congestion
Management Plan standards. Growth management will allow
the City and the region to more accurately plan
transportation facility improvements to meet the demand,
without significant impacts, based on adopted standards.
dst- 04- 18- 9412.05paCr\WP5l\ORD\CROKfH.ORD
Ordinance No.
Page 4
F. Growth management is necessary to ensure that adequate
landfill capacity is available for the region.
Inadequate landfill capacity is available in Ventura
County to meet the projected solid waste disposal needs
of County residents and businesses.
G. Growth management is necessary to ensure that adequate
library services are available. Library services in the
City are currently provided by Ventura County, and the
current property tax funding is inadequate to meet the
needs of the City's existing residents.
H. Growth management will not impact the City's ability to
provide its fair share of regional housing based on the
exemptions as described in Section 2 of this ordinance,
the number of development allotments available yearly as
described in Section 3 ec this er- - n _ ne
I. The City's projected population for General Plan buildout
(40,856)
through the xxear 2010, id; i <n tmbe= of dwellzng`units
welt racr�i be ceve;pecx Q General flan t�se
.......0 >: . /RS .f '.
desagn8 1±a t. _ have been used "as the cietern n1ng' "factors
i.4iw:v:v: T 4 s g 4 N : .: .. fv.
n thirowth management ordinance, as documented in
C. Exhibit A.
SECTION 2. APPLICABILITY
The provisions of the Growth Management System shall apply
from the effective date to all residential development including
mobilehomes in the City of Moorpark with the exception of the
following exempt residential development:
A. Projects of not more than four residential dwellings,
limited to only one such project per developer per
calendar year.
B. Fourplexes or lesser numbered multiple dwellings on a
single existing lot.
C. Single family residential units on a single existing lot.
D. Rehabilitation or remodeling of an existing dwelling,
conversion of apartments to condominiums, or conversion
of mobilehome parks to condominiums, so long as no
additional dwelling units are created.
E. Dwelling units reserved for very low income, lower
income, or senior citizen households pursuant to an
affordable housing or development agreement.
dst- 04- 28- 91 12tO5pmC: \NPSI \ORD \GROWTH.ORD
Ordinance No.
Page 5
F. Projects of residential dwellings with a minimum lot size
of five acres per dwelling.
G. Second dwellings as defined in the City of Moorpark
Zoning Ordinance.
SECTION 3. YEARLY ALLOTMENTS
The number of new residential development allotments available
for award each year in the City of Moorpark, except for dwelling
units exempted pursuant to the provisions of Section 2, shall be
two hundred and fifty (250).
If all or a portion of the two hundred and fifty (250)
allotments that are available for award in any calendar year, are
not awarded in that year, those non - allocated allotments shall be
carried over to each ensuing calendar year, subject to a limitation
that the maximum number of carryover allotments shall not exceed a
total of five hundred (500) at any time. Such carryover allotments
shall be in addition to the allotments that are otherwise available
per calendar year pursuant to the preceding paragraph.
If any allotments previously awarded to a project are
rescinded by the City Council, pursuant to Section 9, those unused
t allotments shall be added to the pool of non - allocated development
allotments available for award during any calendar year, subject to
a limitation that the maximum number of rescinded allotments plus
non - allocated carryover allotments, described in the preceding
paragraph, shall not exceed a total of five hundred (500) at any
time.
The number of annual development allotments shall be
continuously applicable to the city's jurisdictional boundaries and
shall not be modified by reason of annexation or additional
territory.
SECTION 4. DEVELOPMENT ALLOTMENT LIST
The Community Development Department shall keep a list of
approved residential planned development (RPD) permit numbers in
chronological order based on date of permit approval. This list
shall be known as the Development Allotment List, and shall begin
with the RPD Permit that has the oldest approval date and end with
the most recently approved RPD Permit, unless otherwise positioned
due to the use of bonus points as provided for in Section 6.
dst- 04- 28- 9I 12r05pmCr \NPSI \ORD \GROKPN.ORD
Ordinance No.
Page 6
A. The Development Allotment List shall contain the following
information:
1. The project RPD permit number.
2. The total number of project dwelling units requiring
development allotments.
3. The number of allotments awarded for each RPD project.
4. The date of RPD Permit approval.
B. The ranking of a project on the Development Allotment List
shall not be changed after passage of the base year in which
the RPD Permit had been approved.
C. If a residential project is awarded bonus points during the
base year of RPD Permit approval, pursuant to the process
described in Section 6, the List shall be updated within two
working days of the decision to award the bonus points, and
the updated List shall be published in an adjudicated
newspaper in and for the City of Moorpark.
SECTION 5. DEVELOPMENT ALLOTMENT AWARD PROCESS
The owner or project developer (hereafter called applicant) of
a property, for which a RPD Permit has been approved and included
on the Development Allotment List, shall be eligible to apply to
the Community Development Department for one development allotment
for each non - exempt dwelling unit in the approved RPD project.
A. Each applicant for development allotment(s) shall apply on a
form provided by the Department.
B. A completed application for development allotment(s) must be
filed with the Department no later than the last working day
of each calendar year. Any application deemed incomplete by
the Department will not be considered as accepted for filing.
C. Allotments for the previous year, pursuant to Section 3, shall
be awarded each calendar year no later than the last working
day of March.
D. Allotments shall be awarded for a RPD project based on its
position on the Development Allotment List.
dst- 04- 28- 91 12:05pmC:\WP5I\ORD\CROWTH.ORD
Ordinance No.
Page 7
E. The City Council shall consider at a noticed public hearing
the rankings of the proposed developments on the Development
Allotment List, along with any action taken by the Planning
Commission concerning the award of bonus points pursuant to
Section 6, and shall award development allotments from that
List. Notice of the hearing shall be pr-e-v}ded eene sten with
pubi$hed `3n %8&ctrea 6008 e the Geve� e — e
....: :— :. _ ..:..... :.. ... ::. :. ....,, ..;... iii:......... -..: isiiS� !:::.....i % ^!i ^:..:::i•r.r. :: :' _ !k... _ �_ • '..._.L 7:'_ _'._1_.
�+i"iiJ. LA.V <.'•':j�R iZ. 3L 17 ''�:iii�243.i1�.iiT. .TL'ai.i�iij;:i� ;; a-aL VGi vivv aaa.' ...•v r....��..
hearing, the City CouAb3 -Y�s iaYl award all allotments for which
it has received application, not to exceed the maximum number
of allotments available as established in Section 3 herein.
F. If the first RPD project on the Development Allotment List
does not utilize all of the allotments available, then the
next project on the List will be eligible for award of
allotments. This process shall continue until there are no
allotments available or until there are no more RPD projects
on the List, whichever comes first.
G. If the property owner or developer of a RPD project fails to
submit an application for development allotments, no
allotments shall be awarded that project.
H. If a RPD project, for whatever reason, is not awarded
development allotments, or is awarded only a portion of the
allotments required to develop the project, that project shall
maintain its position on the Development Allotment List until
all required allotments have been received.
I. No single applicant may be awarded more than 50 percent (50 %)
of all allotments available during a single allotment year.
SECTION 6. BONUS POINTS
Any RPD project which is on the Development Allotment List may
have its position on the List improved if bonus points are
obtained. Bonus points will be awarded in recognition of a
project's contribution to the achievement of the goals of the
Growth Management Ordinance.
As provided for below, the owner or developer of a property
for which a RPD Permit has been approved may submit an application
to the Community Development Department for bonus points at any
time prior to the last working day of December of the calendar
(base) year that RPD Permit approval is received. As identified in
Section 5, RPD projects approved during the same calendar year will
initially be ranked on the Development Allotment List, in
chronological order, based on the date of approval of the RPD
dat- 0I- 28- 91 12:05PmC : \NP51 \ORD \CRONTH.ORD
Ordinance No.
Page 8
Permit. If a RPD project receives a bonus point, it will increase
its ranking on the Development Allotment List for the base year of
RPD Permit approval. The RPD project with the most bonus points
will be placed at the beginning of the List; other RPD projects
with lesser points shall follow in descending order of points. If
one or more projects receive equal bonus points, those projects
would be ranked in chronological order, based on the date of RPD
Permit approval.
The application and evaluation process for bonus points shall
be as follows:
A. Applicants for bonus points shall apply on a form provided by
the Department. A complete application and a processing fee
must be submitted to the Department no later than the last
working day of December of the base year that the RPD Permit
was approved by the city. In order for an application to be
deemed complete by the Department, it must include all
components required to allow a determination of eligibility
for bonus points as described in subsection C of this Section.
The processing fee to be submitted with the application shall
be established by resolution of the City Council.
C B. A noticed public hearing, shall be held by the Planning
Commission on t`tGr the second Monday of January for the
purpose of evaluating applications for bonus points and
finalizing a recommendation to the City Council. Notice of
the hearing shall be
the tieve=emE t Eede ffi < MU.-
�.,• ,r ,a.. xy. -rile rlanning commission shall make ....... its
recoinmeridaton decision no later than 15 days from the date of
the public hearing.
C. The following criteria shall be used by the Planning
Commission to evaluate applications for bonus points and
develop a recommendation to the City Council for bonus point
award.
1. One (1) point shall be awarded for every one percent (1%)
of value of the infrastructure /amenity to be provided,
which was not required as a condition of the RPD Permit
approval. Said percent shall be calculated as a percent
of the appraised value of the project (at the time of RPD
Permit approval), and the appraised value of the
contribution.
dst- 04- 28- 94 12:OSPMCt \WP51 \ORD \CROWTH.ORD
Ordinance No.
Page 9
a. The "infrastructure /amenity" shall be defined as a
list of projects which is compiled by the City
Council on a yearly basis and which is considered
to be important to the attainment of the goals of
the Growth Management Ordinance. This list is to
be known as the Growth Management Goal Attainment
(GMGA) -List, and shall be established by resolution
of the City Council. The GMGA List shall be in
order of priority.
b. The applicant may either build the infrastructure/
amenity or may contribute monetarily to the GMGA
fund. All contributions made to the GMGA fund may
only be used to capitalize projects on the GMGA
List.
C. The appraised value of the project and any
"infrastructure /amenity" shall be based on an
appraisal report. The appraisal report must be
completed by the deadline for application submittal
pursuant to subsection A, above. The applicant
shall bear the cost of preparation of said
appraisal report. Appraisals shall be conducted by
a qualified appraiser, selected by the city,
pursuant to the following process:
d. The City shall maintain a list of qualified
appraisers, and shall make said list available to
applicants.
e. The applicant shall request in writing that the
Department obtain informal bids from three
appraisers, selected by the applicant, from the
City's list of qualified appraisers.
f. The City shall then request informal bids from the
three appraisers relative to the value of the
applicant's project and any "infrastructure /
amenity" to be provided.
g. The lowest bidder shall be awarded the task of
preparing the required appraisals of the project
and the proposed improvement as listed on the GMGA
List. One of the other bidders may be awarded the
appraisal contract if the City and the applicant
mutually consent to do so.
dat- 01- 28- 91 11:05PMC:\WP51\ORD\GR0NTH.ORD
Ordinance No.
Page 10
h. The applicant shall deposit with the City, an
amount equal to the appraisal bid plus the City's
contract administration charge, as established by
City Council resolution.
i. The product of the appraiser's work shall be given
to the applicant for his inclusion with the
application for bonus point(s).
2. One (1) point shall be awarded if the project is
considered to be an "in- fill" development. An in -fill
development is defined as a RPD project which is
surrounded on three sides by existing development and
does not require the extension of water, sewer, electric,
utilities or street infrastructure to the site.
3. One or more points shall be awarded if affordable rental
or'for- purchase dwelling units are provided within a RPD
project consistent with the following criteria:
a. One (1) point shall be awarded if a minimum of 5
percent (5 %) of the total RPD project dwelling
units, in excess of any inclusionary zoning
requirement, is made affordable to either very low
or lower income households pursuant to an
affordable housing agreement.
b. Two (2) points shall be awarded if a minimum of 10
percent (10 %) of the total RPD project dwelling
units, in excess of any inclusionary zoning
requirement, are made affordable to either very low
or lower income households pursuant to an
affordable housing agreement.
C. One (1) point shall be awarded if a minimum of 15
percent (15 %) of the total RPD project dwelling
units, in excess of any inclusionary zoning
requirement, is made affordable to median or
moderate income households pursuant to an
affordable housing agreement.
d. One (1) additional point shall be awarded if a
minimum of 5 percent (5 %) of the total RPD project
dwelling units are made affordable to moderate
income households, in addition to the provision of
very low or lower income units pursuant to either
subsection a. or h., above.
det- 01- 18- 9412:05pmC:\WP51\ORD\GROKfH.ORD
Ordinance No.
Page 11
5. One or more points shall be awarded if a minimum of 25
percent of the RPD Permit area includes rural
development, with the lot size requirements and point
allocation to be as follows:
a.
1.0
acre minimum lot size =
one (1) point
b.
2.0
acre minimum lot size =
two (2) points
C.
3.0
acre minimum lot size
= three (3) points
d.
4.0
acre minimum lot size
= four (4) points
e. If a minimum of 25 percent of the RPD Permit area
includes mixed rural lot sizes of one to four
acres, the Planning Commission shall make a
recommendation to the City Council for award of
bonus points for the project; however, the total
number of bonus points for a mixed rural lot size
development shall not exceed three (3).
6. One (1) bonus point shall be awarded if the overall
density of the RPD Permit project site is reduced by a
minimum of 10 percent below the maximum density allowed
C by the General Plan. One (1) additional point may be
awarded by the City Council if the density of the RPD
Permit project site is reduced by m9F than an additorial
10 percent below the maximum density allowed by" the
General Plan.
D. Having evaluated each development in accordance with the
foregoing criteria, the Planning Commission shall make a
determination of bonus point assignment and recommended
revisions to the Development Allotment List, and the
Department shall then publish the Planning Commission's
preliminary bonus point assignment and revised Development
Allotment List in an adjudicated newspaper in and for the City
of Moorpark.
E. Any applicant who is dissatisfied with the Planning
Commission's preliminary bonus point assignment may submit
written notification of such dissent within fifteen (15) days
following the publication of the revised Development Allotment
List. Such written appeal notification will be furnished to
the City Council prior to any publio - hearing for the final
awarder of bonus points.
dat- 04- 28- 91 12:05pmC: \WP51 \ORD \GROWTH.ORD
Ordinance No.
CPage 12
F. Following publication of the preliminary bonus point
assignment, the Department shall schedule a City Council
public hearing for the final award of bonus points, and shall
provide the Council with the Planning Commission's
recommendations for preliminary bonus point assignments and
the revised Development Allotment List, as well as any written
appeal notification received from applicants.
G. The City Council shall hold a noticed public hearing on or
before the second Wednesday of Diu Mrc
ah, prior to making
a final determination of the award o'f 'bonus points and
revision of the Development Allotment List. Notice of the
hearing shall be Eavided
Geyernme -lie ,. ,d f news' a ex.. in . ax d
} ... ". .. The City Council shall make a aecision
as o a Ra ward of bonus points no later than 15 days
from the'date of the public hearing.
SECTION 7. BUILDING PERMITS
No building permit for a non - exempt residential dwelling unit
shall be issued unless a residential development allotment for the
unit has been awarded; provided, however, that such building
permits shall not be issued in excess of five hundred ( 500) per
calendar year. If any of the five hundred (500) building permits
which are available for issuance in any calendar year are not
issued in that year, they shall not be carried over to the ensuing
calendar year.
SECTION Q. GRADING PERMITS
No grading permit for a project containing non - exempt
residential dwelling units shall be issued unless there has been an
award of development allotments for the project. When the award is
for less than the entire project, grading beyond the immediate area
of the lots for which the applicant proposes to utilize the
development allotments may be allowed in accordance with the
following:
A. The applicant executes, in a form approved by the City
Attorney, a waiver of any claim of a vested right to be exempt
from the Growth Management System as a result of grading
beyond the area for which the development allotments have been
awarded and an acknowledgment that the applicant assumes any
risks that may result from commencement of grading prior to
the award of allotments for the entire project; and
dat- 04- 28- 94 12:05pmC: \Wp51 \0RD \OR0WTH.ORD
Ordinance No.
Page 13
The applicant has been awarded development allotments for at
least 15 percent (15 %) of the number of non - exempt residential
dwelling units in a project consisting of not more than one
hundred and seventy -five (175) lots, in which event the
grading may be carried out for the entire project; or
B. The applicant has been awarded development allotments for at
least 15 percent (15 %) of the number of non - exempt residential
units in the first phase of a project consisting of more than
one hundred and seventy -five (175) lots, in which event the
grading shall be carried out in phases. The phases shall be
delineated by the applicant-on the tentative tract map. No
phase shall consist of more than one hundred and seventy -five
(175) lots. Grading of the first phase may commence once 15
percent (15 %) of the necessary allotments for that phase have
been awarded. Grading of the second phase and each phase
thereafter may commence once 75 percent (75 %) of the necessary
allotments for the preceding phase have been awarded.
C. The City Council may approve or conditionally approve grading
in a manner not otherwise provided for in this subsection upon
a finding that strict compliance with the provisions of
paragraph A or B would work a 'substantial economic or
engineering hardship on the project.
D. All graded areas shall be treated with landscaping, as deemed
appropriate by the Director of Community Development, to
prevent erosion and to reduce visual impacts of the grading.
A landscaping plan shall be approved by the Director prior to
issuance of a grading permit.
SECTION 9. FAILURE TO INAUGURATE
Should a developer fail to initiate construction within
twenty -four months after award of the development allotments, the
City Council after a public hearing may, by majority vote, rescind
all or part of the development allotments originally awarded to the
RPD project in question. Further, for a one -year period following
the decision of the City Council to rescind development allotments,
no application for new development allotments shall be accepted for
the project which had its allotments rescinded.
Any allotments rescinded by the City Council, pursuant to the
preceding paragraph, may be added to the pool of development
allotments available for allocation during any calendar year,
subject to the restrictions specified in Section 3 of this
ordinance.
da[- 04- 28- 91 12:05pmCt \WP51 \ORD \CROWTH.ORD
Ordinance No.
Page 14
SECTION 10. TERMINATION OF ORDINANCE
This ordinance shall remain in effect only until December 31,
2005, and as of that date shall expire, unless earlier repealed,
amended, or extended by the City Council.
SECTION 11. AMENDMENT OF ORDINANCE
Any amendment of this ordinance shall require a public hearing.
SECTION 12. SEVERABILITY
If any section, subsection, sentence, clause, phrase, part or
portion of this Ordinance is for any reason held to be invalid or
unconstitutional by any court of competent jurisdiction, such
decision shall not affect the validity of the remaining portions of
this Ordinance. The City Council declares that it would have
adopted this Ordinance and each section, subsection, sentence,
clause, phrase, part or portion thereof, irrespective of the fact
that any one or more section, subsections, sentences, clauses,
phrases, parts or portions be declared invalid or unconstitutional.
SECTION 13. EFFECTIVE DATE
This Ordinance shall become effective thirty (30) days after
its passage and adoption.
SECTION 14. CERTIFICATION AND PUBLICATION
The City Clerk shall certify to the passage and adoption of
this ordinance; shall enter the same in the book of original
ordinances of said city; shall make a minute of the passage and
adoption thereof in the records of the proceedings of the City
Council at which the same is passed and adopted; and shall, within
fifteen (15) days after the passage and adoption thereof, cause the
same to be published once in the Moorpark News - Mirror, a weekly
newspaper of general circulation, as defined in Section 6008 of the
Government Code, for the City of Moorpark, and which is hereby
designated for that purpose.
1994. PASSED AND ADOPTED this day of
Mayor of the City of Moorpark, California
ATTEST:
Lillian E. Hare
City Clerk
dst- 04- 78- 94 12i05pmC: \wp5! \CRD \CROf.TH.CRD
C
Ordinance No.
Page 15
EXHIBIT A
CONTROLLED GROWTH MANAGEMENT PLAN
The maximum density based on City General Plan buildout of 14,911
dwelling units; plus an additional 147 dwelling units as requested
in a currently filed application for an amendment to the Carlsberg
Specific Plan; minus 8,280 existing dwelling units as of 1 -1 -94;
minus 948 dwelling units which represent an estimate of the number
of allotments that are expected to be made available under existing
Measure F and vested prior to expiration of that ordinance; minus
an estimate of 1,132 dwelling units that will be exempt from any
growth management ordinance based on a prior court decision and
rural land use designation requiring 5 acre or larger lot size;
minus an estimate that 939.60 dwelling units (20 percent) will be
exempt because they will be "affordable ", "senior ", or other exempt
units as defined in Section 2 of draft ordinance; and based on the
City's General Plan buildout year of 2010, the number of dwelling
units required over a 15 -year period is then calculated:
Maximum Density of City General Plan = 14,911 du's (1992
Land Use Element)
14,911 du's + 147 Carlsberg Specific Plan du's (552 -405)
= 15,058 du's
15,058 du's - 8,280 du's (total du's in City as of 1 -1-
94) = 6,778 du's not yet constructed
6,778 du's - 948 du's (Measure F allotments already
allocated or expected to be allocated by 1995) = 5,830
du's
5,830 du's - 1,132 du's (estimate of units exempt from
new ordinance based on prior court decision and rural
land use designation requiring 5 acre or larger lot size)
= 4,698 du's
4,698 x 20% (percentage of all other new dwelling units
expected to be exempt because they will be "affordable ",
"senior ", or other exempt units as defined in Section 2
of ordinance) = 939.60 exempt units
4,698 du's - 939.60 du's = 3,758.40 du's requiring
allotments
3,758.40 du's / 15 years (1996 through 2010) = 250.56
du's required per year through 2010
Round to 250 yearly allotments
de[- 04- 28- 9412:05pmC:\WP51\ORD\CROWTH.ORD
COMMUNITY DEVELOPMENT DEPARTMENT
INTEROFFICE MEMORANDUM
To: The Honorable City Council
Date: March 23, 1994
From: Jaime R. Aguilera, Director of Community Developmene
Subject: BOX ITEM - SUMMARY COMPARISON OF MEASURE F AND THE
PROPOSED GROWTH MANAGEMENT ORDINANCE
Attached please find a brief comparison of the major differences between Measure F and
the proposed Growth Management Ordinance. You can contact me at extension 242, if you
have any questions.
_i:yr.. ;.!ccrl;,3rk, �'��,!. +rk•r:,7;�,;br,...P, '.f«; %:7.�k. ! -3 93021
C I- QWFMVRA- GHOC101
(referred to as the Development Allotment List), with the RPD
Permit that had the oldest approval date at the beginning of the
list and the most recently approved permit at the bottom. The
ranking of a project on that list could not be changed after
passage of the base year in which the RPD Permit had been approved.
Bonus points could move an RPD up on the list if it was awarded
bonus points during that same of approval year.
It was the intent of the Ad Hoc Committee to make the bonus point
system as completely- objective. For example, one point would-be
awarded for every 1 percent of value of the infrastructure /amenity
to be provided, which was not required as a condition of the RPD
Permit. The percent would be calculated based on the appraised
value of the project.
An additional restriction under the draft ordinance is that no
single applicant may be awarded more than 50% (125) of all
allotments available during a single allotment year. _
Building Permits
The requirements are the same in both ordinances (a maximum of 500
building permits for non - exempt dwelling units may be issued per
year).
Grading Permits
No change in language has been proposed; however, the grading
permit regulations for Measure F were contained in the implementing
resolution. Those regulations have now been included in the draft
ordinance.
2
ITEM \
A G E N D A R E P O R T
C I T Y O F M O O R P A R R
TO: The Honorable City Council
FROM: Jaime Aguilera, Director of Community Development'
Deborah S. Traffenstedt, Senior Planner -�
DATE: February 10, 1994 (CC Meeting of 2- 16 -94)
SUBJECT: CONSIDER DRAFT GROWTH MANAGEMENT ORDINANCE DEVELOPED BY
AD HOC COMMITTEE
Backaround
On December 9, 1992, the Mayor nominated and the City Council
ratified the appointment of the following public members to a
Measure F /Comprehensive Planning Ordinance Ad Hoc Committee: Ellis
Green, Bob Heitzman, Joyce Thompson, and Dorothy Ventimiglia. In
addition, two Councilmembers (Perez and Wozniak), and two Planning
Commissioners (Brodsky and May) were appointed to the Ad Hoc
Committee.
The Ad Hoc Committee was given direction by City Council to look at
the existing Measure F Ordinance (Attachment 1), make a
recommendation whether that ordinance should be extended beyond its
termination date of December 31, 1995, and to develop a new
ordinance if determined appropriate.
The Ad Hoc Committee met 15�times over the past yeaff and drafted a
new growth management ordinance (Attachment 2), which represents
the unanimous position of the Ad Hoc Committee. It was the Ad Hoc
Committee's opinion that the different growth management
perspectives (including both pro - growth control and anti - growth
control perspectives) were represented on that Committee. In
addition, public input was received from several Moorpark residents
who were in favor of growth management, as well as from the
development industry including the Building Industry Association.
The City Attorney reviewed a preliminary draft ordinance developed
by the Ad Hoc Committee, and the following Discussion section
includes a summary of some of her comments. A copy of the attached
draft ordinance has been forwarded to the City Attorney for
additional review and comment.
Following is a discussion of some of the issues analyzed by the Ad
Hoc Committee in the development of the attached draft ordinance.
dat -02- 04- 941 5 :44pmCr\WP51`STPRPT'\CC2- 16.RPT
f
The Honorable City Council
February 10, 1994
Page 2
Discussion
Issues: The more significant issues analyzed by the Ad Hoc
Committee included the following:
1. Is there a continued need for growth management?
The Ad Hoc Committee's opinion was that growth management was
necessary for the reasons outlined in the preamble and
Findings sections of the attached draft ordinance. The City
Attorney has identified that in the event of a challenge to a
growth control ordinance, the City would have to bear the
burden of proof. To shift the burden of proof back to the
plaintiff, the City would have to prove that there is a
reasonable probability that regional housing requirements can
be accommodated for as long as the ordinance is in effect. It
is the opinion of the Ad Hoc Committee that regional housing
requirements can be met through the sunset date of the new
ordinance, based on the yearly allocation of development
allotments and the applicability exemptions (see Section 2 of
draft ordinance). Projects which are proposed to be exempt
from the new growth management ordinance include all dwelling
units reserved for very low income, lower income, or senior
citizen households.
2. Should growth limits be based on public service and
infrastructure standards or limits?
Inadequate information was available to establish or determine
what constituted acceptable levels for all public services or
the adequacy of existing infrastructure. Any study to
determine such information would be costly and would probably
take a considerable amount of time to produce. Such a study
might also be inconclusive, due to the idea that development
fees are required in order to pay for infrastructure. The
City Attorney did identify during her preliminary review of
the draft ordinance that proving that a numerical growth
control ordinance is necessary for the protection of the
public health, safety, or welfare of the population of the
City requires the presentation of evidence in the form of
facts or of opinion relating to fact, and that a recitation of
findings by no means suffices.
3. How many development allotments should be available yearly?
This issue was given close scrutiny by the Ad Hoc Committee
and was discussed at almost every meeting. The final decision
was that 250 allotments should be available yearly through the
dat- 02- 04- 94/ 5t14p=Cr \NP51 \STPRPT \CC2- 16.RPT
The Honorable City Council
February 10, 1994
Page 3
proposed termination date of the new ordinance (Year 2005).
The justification for the yearly allocation number is attached
as Exhibit A to the draft ordinance.
4. How many yearly development allotments should carry over to a
subsequent year if not allocated; and how long should a
project be able to keep awarded allotments before they expire
if unused?
The Ad Hoc Committee determined that the maximum number of
carryover allotments at any one time should be 500. Similar
to Measure F, the Ad Hoc Committee recommends that after 24
months, the City Council may rescind all or part of the
development allotments originally awarded to the RPD project.
Any allotments rescinded by the City Council would be added to
the pool'of development allotments available for allocation,
not to exceed 500 total, as previously discussed.
5. What will happen to non - allocated and unused allotments
available under Measure F?
The City Attorney's opinion regarding non - allocated
development allotments available under Measure F is that those
allotments will automatically expire when Measure F terminates
in December 1995. It is also the opinion of the City Attorney
that Measure F allotments already allocated to specific
projects will expire unless the developer has a "vested right"
for the buildout of a project. A project may be vested if a
property owner has performed substantial work and incurred
substantial liabilities in good faith reliance upon a building
permit issued by the government. A project's allotments may
also be vested if there is an approved development agreement
that guarantees that the project development allotments will
not expire when Measure F terminates.
It was the Ad Hoc Committee's opinion that allotments that
have never been allocated to a specific project should not
carryover to a new ordinance, and based on the information
obtained from the City Attorney that those allotments would
expire upon termination of Measure F, no language was added to
the new ordinance regarding carryover. Section 3 of the draft
ordinance does address the issue of unused allotments. If any
allotments previously awarded to a project are rescinded by
the City Council, those unused allotments shall be added to
the pool of non - allocated development allotments available for
award during any calendar year, subject to a limitation of 500
total non - allocated and rescinded allotments.
dat- 02- 04- 9115:I1pmC:\WP5I\STPRPT\CC1- 16.RPT
The Honorable City Council
February 10, 1994
Page 4
6. Should a new ordinance be City Council approved or submitted
to the voters for approval?
The Ad Hoc Committee unanimously agreed that the City Council
should adopt a new growth management ordinance. An advantage
of City Council adoption is that it would save money. Also,
the initiative and referendum process is still available to
voters, and regardless of whether of not the ordinance is
adopted by the City Council or by initiative, the City would
be required to defend such ordinance in court.
Pursuant to Government Code Section 65863.6, a numerical
growth control ordinance must contain public health, safety
and welfare "findings" that "Justify" reducing the housing
opportunities of the region, unless the ordinance is adopted
by initiative. However, this advantage is essentially negated
by the fact that State Evidence Code Section 669.5 subjects
both initiative and legislative numerical growth control
ordinances to a presumption of impact on the supply of
residential units available in an area, and unless the court
finds that the defendant city has rebutted the presumption,
places the burden on the city to prove that such ordinance is
necessary for the protection of the public health, safety, or
welfare of the population of the city. To shift the burden of
proof back to the plaintiff, the City would have to prove that
there is a reasonable probability that regional housing
requirements can be accommodated for as long as the numerical
growth control ordinance is in effect.
The Ad Hoc Committee did include public health, safety and
welfare findings in the attached draft ordinance, and the
opinion of the Committee was that regional housing needs could
be accommodated based on the proposed exemptions for
affordable, senior and rural (five acre and larger lot size)
housing, General Plan buildout projections, the number of
yearly allotments available, the proposed 2005 termination
date of the ordinance, and the provisions for carryover of
non - allocated allotments under the new ordinance (not to
exceed a maximum of 500 at any time).
7. Should the prior project ranking system be maintained for
determining which projects would receive development
allotments?
It was the Ad Hoc Committee's opinion that the prior point
system was very subjective and that the design of the project
should be determined by the planned development process not
the growth allocation process. Under the attached draft
dst- 02- 04- 9115:44pmC: \WP51 \S7FRPT \CC2- 16.RPT
The Honorable City Council
February 10, 1994
Page 5
ordinance, projects would be eligible for development
allotments based on the approval date of a residential planned
development (RPD) permit. A list of approved RPD projects
would be established (referred to as the Development Allotment
List), with the -RPD Permit that had the oldest approval date
at the beginning of the list and the most recently approved
permit at the bottom. The ranking of a project on that list
could not be changed after passage of the base year in which
the RPD Permit had been approved, unless a project was awarded
bonus points during that same year.
The application and evaluation process for bonus points is
described in Section 6 of the draft ordinance. It was the
intent of the Ad Hoc Committee to make the bonus point system
as objective as possible. Bonus points could be awarded for
infrastructure /amenities to be provided in excess of any RPD
permit requirements. One or more bonus points could also be
awarded if a project includes affordable housing units (the
actual affordable units would be exempt if targeted to lower
and very low income households), as well as for a project
which includes rural development (1 to 4 acre minimum lot
size).
Recommendation
Direct staff to schedule a City Council public hearing for review
of the draft growth management ordinance.
Attachments:
1. Measure F
2. Draft Growth Management Ordinance
det- 02- 04- 9115r44pmCz \NP51 \STPRPT \CC2- 16.RPT
CITY OF MOORPARK
MEASURE F
(Facsimile of Measure F as Amended - Not an Official Reproduction)
INITIATIVE ORDINANCE
AN INITIATIVE ORDINANCE ESTABLISHING A
RESIDENTIAL DEVELOPMENT MANAGEMENT
SYSTEM OF THE CITY OF MOORPARK
THE PEOPLE OF THE CITY OF MOORPARK DO ORDAIN AS FOLLOWS:
SECTION 1
SEC. 10.01 Findings: The people of the City of Moorpark hereby find and declare
as follows:
A. The City of Moorpark has adopted a General Plan and city ordinances
relating to the regulation of residential development.
B. The City of Moorpark is experiencing a period of intense residential
development which is- adversely affecting the capacity of the streets
and local freeway+ system to meet traffic demands, the capacity of
appropriate schools to absorb children, the semi -rural character of
the community, the quality of life prevalent in the City of
Moorpark and its sphere of influence, and the cost to households of
some utilities and municipal services.
C. It is the intent of the People of the City of Moorpark to achieve a
steady, rather than a fluctuating, overly rapid, rate of residential
growth each year in order that the services provided by City,
School, Park, utility and /or service agencies operating in the City
can be properly-and effectively staged in a manner which will not
overextend existing facilities, and in order that deficient services
may be brought up to required and necessary standards while
minimizing, by means of long range planning, the avoidable costs of
short sighted facility expansion.
Measure F
Page -2-
D. It is the intent of the People of the City of Moorpark to establish
control over the quality, distribution, and rate of growth of the
City in order to:
• Preserve the semi -rural character of the community;
Protect the agricultural land and open space of the City;
• Provide a suitable living environment for all citizens of the
City;
• Ensure the adequacy of municipal school, utility, recreation
and park facilities and services;
• Facilitate a balance of housing types and values in the City
that will accommodate the housing needs of all economic
segments including families of low and moderate income, and
older families on limited and /or fixed incomes;
• Ensure the balanced development of the City;
• Prevent further significant deterioration in the local air
quality;
• Ensure that the traffic demands do not exceed the capacity of
streets that are in character with the City's semi -rural
nature;
• Ensure that the City does not grow in a pattern that places a
severe strain on the local freeway system;
• Ensure the adequacy of fire protection; and
1!1 IF
• Ensure adequate water and sanitary sewer systems.
E. The people of the City of Moorpark have considered the effect of
this ordinance on the housing needs of the region in which it is
situated and have balanced those needs against the public service
needs of its residents and available fiscal and environmental
resources. It is hereby found and determined that this ordinance
will not reduce the housing opportunities of the region and this
ordinance is compatible with the state housing goal and regional
housing needs. It is further found and determined that, to the
extent this ordinance may be determined to reduce the housing
opportunities of the region, the findings contained herein as to the
public health, safety and welfare of the city to be promoted by the
adoption of this ordinance, justify any such reduction in the
housing opportunities of the region.
Measure F
Page -3-
F. It is the purpose of this ordinance to augment the policies of the
City of Moorpark as recorded in the General Plan and City Ordinances
relating to the regulation of residential development; and
G. In order to accomplish the above purposes, the city must be able to
control the rate, distribution, quality and economic level of
proposed development on a year -to -year basis. To this end the
following Residential Development Management System for the City of
Moorpark shall be in effect from and after its effective date until
December 31, 1995.
Sec. 10.02 Applicability of the Development Management System. The provisions
of the Residential Development Management System shall apply from the effective
date to all residential development including mobile homes in the City of
Moorpark with the exception of the following:
A. Projects of not more than four residential dwellings, limited to
only one such project per developer per calendar year.
B. Fourplexes or lesser numbered multiple dwellings on a single
existing lot.
C. Single family residential units on a single existing lot.
D. Rehabilitation or remodeling of an existing dwelling or conversion
of apartments to condominiums so long as no additional dwelling
units are created.
E. Dwelling units of any low income or senior citizen projects funded
or subsidized pursuant to the provisions of applicable federal state
or local laws or programs.
F. Projects of residential dwellings with a minimum lot size of five
acres per dwelling.
Sec. 10.03 Establishment of Residential Development Evaluation Board. In order
to administer the system set forth herein, and especially to make the valuations
set forth in Section 10.06 below, a Residential Development Evaluation Board
(here after called the Board) is hereby established, consisting of the duly
appointed members of the Planning Commission of the City of Moorpark. The
procedures and by -laws of the Board shall be developed by the Board subject to
the approval of the City Council of Moorpark (hereinafter called the City
Council). The Planning Department of the City of Moorpark shall serve as the
staff of the Board.
Measure F
Page -4-
Sec. 10.04 Establishment of Annual Residential Development Allotments. In
addition to any residential development allotments carried over from previous
years, the number of residential development allotments available for award each
year in the City of Moorpark, except for dwelling units exempted pursuant to the
provisions of Section 10.02 or pursuant to a final court order, shall be as
follows:
A. Calendar year 1986, no allotments for any dwelling units;
B. Calendar years 1987 and 1988, allotments for 250 dwelling units; and
C. Calendar year 1989 and all years thereafter through December 31,
1994, allotments for 270 dwelling units.
Any allotments that are available for award in any calendar year but which are
not awarded in that year for any reason whatsoever shall be carried over to each
ensuing calendar year until awarded and such allotments shall be in addition to
the allotments that are otherwise available per calendar year pursuant to this
section.
The annual allotment shall be continuously applicable to the city's
jurisdictional boundaries and shall not be modified by reason of annexation or
additional territory.
Section 10.05 Development Allotment Application. No building permit for a
residential dwelling unit which is not exempt pursuant to Section 10.02 or
pursuant to a final court order shall be issued unless a residential development
allotment for the unit has been awarded; provided, however, that such building
permits shall not be issued in excess of 500 per calendar year. If any of the
500 building permits which are available for issuance in any calendar year are
not issued in that year, they shall not be carried over to any ensuing calendar
year. At any time prior to obtaining a building permit for a non - exempt
residential dwelling unit, the developer shall apply for a development allotment
as set forth herein. The approval of all tentative subdivision maps shall be
conditioned to comply with the provisions of this Residential Development
Management System.
Sec. 10.06 Development Allocation Evaluation. The Board shall consider annually
all applications properly submitted and shall make recommendations to the city
council based on the criteria set forth below:
A. Availability of Public Facilities and Services. The Board shall
examine each application for its relations to, or impact upon local
public facilities and services, and shall rate each development by
the assignment of from zero to ten points (zero indicating "very
poor, "ten indicating "excellent ") on each of the following
attributes:
Measure F
Page -5-
1. The capacity of the water system to provide for the needs of
the proposed development without system extensions beyond
those normally installed by the developer.
2. The capacity of the sanitary sewers to dispose of the wastes
of the proposed development without system extensions beyond
those normally installed by the developer.
3. The capacity of the drainage facilities to adequately dispose
of the surface runoff of the proposed development without
system extensions beyond those normally installed by the
developer.
4. The ability of the fire department to provide fire protection
according to the established response standards of the City
without the necessity of establishing a new station or
requiring addition of major equipment or housing facilities to
an existing station.
5. The capacity of the appropriate school to absorb the children
expected to inhabit a proposed development without
necessitating or adding to double sessions or other unusual
scheduling or classroom overcrowding.
6. The capacity of major street linkage to provide for the need
of the proposed development without substantially altering
existing traffic patterns or overloading the existing street
system, and the availability of other public facilities (such
as parks, playgrounds, etc.) to meed the additional demands
for vital public services without extension of services beyond
those provided by the developer.
7. The capacity of Highway 118 and 23 within the city limits to
provide for the traffic needs generated by the proposed
development without substantially altering the level of
service, including Freeway access.
8. Developments which have received Tentative Tract Map approval
from the City of Moorpark prior to the effective date of this
Residential Development Management System shall receive for
each calendar year after 1984 an additional ten points.
B. Quality of Design and Contribution of Public welfare and Amenity.
The Board shall examine each application which has not been
withdrawn by the applicant for failure to meet criteria A, and shall
rate each development by the assignment of from zero to ten points
(zero indicating "very poor, "ten indicating "excellent ") on each of
the following attributes:
Measure F
Page -6-
1. Site and architectural design quality which may be indicated
by the harmony of the proposed buildings in terms of size,
height, color and location with existing neighboring
development.
2. The amount and character of open -space and slope landscaping.
3. Site and architectural design quality which may be indicated
by the arrangement of the site for efficiency of circulation,
on and off site traffic safety, privacy, etc.
4. The provision of public and /or private usable open space.
5. Contributions to and extensions of existing systems of foot or
bicycle paths, equestrian trails and facilities and /or
greenbelts.
6.• The provision of the needed public facilities such as critical
linkages in the major street system, school rooms, functional
parks, or other vital public facilities.
7. Site and architectural design quality which may be indicated
by the amount and character of modification of the topography,
including quantity of grading, extent of natural slopes cut
and /or filled and impact on ridgeline.
8. Absence of deleterious impact on trees and archeological
sites.
9. The provision of significant water conservation features.
10. The provision of energy generation and conservation features
such as additi6nal insulation, house siteing and design, solar
techniques and other innovative techniques.
11. Absence of deleterious impact on the physical and /or aesthetic
environment.
12. Design and features which contribute significantly to the
economic feasibility of producing housing at the lowest
possible cost given economic and environmental factors, the
public health and safety, and the need to facilitate the
development of housing for persons of low or moderate income.
Measure F
Page -7-
C. After having studied each application in accordance with parts A and
B, in regard to each of these criteria, or so many of them as may be
applicable, and having assigned evaluation points on a scale of zero
to ten in accordance with their finding, the Board shall prepare two
lists, one documenting points awarded from part A and the other from
part B, arranging the developments in each list in order from that
receiving the greatest total number of evaluation points to that
receiving the lowest number. In addition to listing the number of
actual points awarded in each subcategory of both parts, each part
will be totaled and the total shall then be expressed as a
percentage of the maximum number of points awardable. The maximum
number of points awardable shall not include those elements of the
criteria found to be not applicable.
D. Having evaluated each development in accordance with the foregoing
criteria, the Board shall publish in appropriate ways the rating
given to each development on each of those criteria. The Board
shall then schedule a public hearing to be held within 15 days of
classification of any point assignments made by the Board.
1. Any applicant may request the Board, at said public hearing,
to re- evaluate the point assignment made on any or all of the
criterion. The primary criteria for the Board to alter their
point assignment on a particular development is demonstration
by the applicant that there exists pertinent information or a
project redesign which the Board was not aware of at the time
of the original evaluation.
2. Any applicant who is dissatisfied with the Board's re-
evaluation may submit written notification of such dissent,
which will be furnished to the City Council prior to the
awarding of Development Allotments.
E. Having evaluated each development and clarified all point
assignments to the applicants, the Board shall present their lists
of evaluations, along with the decisions reached on any appeals, to
the City Council for the awarding of Development Allotments.
F. The schedule for the submission and consideration of applications
shall be established by the City Council.
G. The criteria set forth in this section 10.06 are for the purpose of
addressing the findings, intent and purpose of this ordinance as set
forth in section 10.01 and are not to be construed or used for the
purpose of rendering infeasible the development of housing for all
economic segments of the community.
Measure F
Page -8-
Sec. 10.07 Development Allotment Awards.
A. The City Council shall consider, at a public hearing, the
recommendations and rankings of the proposed developments on each of
the above described two lists, along with any action taken by the
Board concerning appealed decisions, and shall compile one list
ranking each of the proposed developments, and shall award
development allotments from that list.
1. Development Program Allotment. The number of dwelling units
for which Development Allotments shall be issued shall not
exceed the allotments established in accordance with Section
10.04 herein.
2. Allocation Limitation. No single developer shall, in any one
year, be issued a development allotment for dwelling units in
excess of a number to be established by resolution of the City
Council.
3. Minimum Point Requirements. The City Council shall eliminate
from consideration any development whic' has not been assigned
a minimum of 49 percentage points under Section 10.06,
subparagraph A, herein, or a minimum of 70 percentage points
under Section 10.06, subparagraph B.
If in a given year the highest ranking development does not at
least meet both of the minimum point requirements, the City
Council shall make no Development Allotment for that year.
B. The City Council shall make the annual Development Allotments at a
time to be selected by the City Council.
C. An application may be amended upon submittal 3of an additional
application made in the same manner as the original application. In
addition, the application for an amendment shall set forth the
reasons for requesting the amendment.
1. The City Council shall review such an amendment application in
the same manner as an original application and may grant the
amendment as requested, modify the amendment, or deny the
amendment.
2. An amendment or modification may be granted only if the City
Council after reviewing the proposed development in relation
to the criteria set forth in Section 10.06 subparagraphs A and
B shall find that the modified development has earned as many
or more evaluation points than the original development for
which the Development Allotment was issued.
Measure F
Page -9-
D. Should a developer fail to initiate construction within twenty -four
months after award of the Development Allotment, the City Council
after a hearing may by majority vote, rescind all or part of the
Development Allotment.
Sec. 10.08 Additional Regulations. Should the arrangement of projects as
provided in Section 10.07 subparagraph A produce the situation in which two
projects have equal evaluation point scores, but only one project can be
permitted with the quota, the City Council may offer those applicants a pro rata
share of the number of units available with the quota, or may dispose of such a
tie in any other manner deemed equitable by the City Council.
Sec. 10.09 Judicial Review. Any legal action to challenge any decision or denial
of the Board or any other governmental body performing a function under this
ordinance must be filed in a court of competent jurisdiction within thirty days
immediately following the action challenged.
Sec. 10.00 Modification. The City Council may, after a public hearing, by a
four -fifth vote, change any part of this Residential Development Management
System by amendment, providing the amendment is consistent with the intent of
this ordinance.
SECTION 2. SEVERABILITY. If any provision of this ordinance, or the application
thereof to any person or circumstance is held invalid by a court of competent
jurisdiction the validity of the remainder of this ordinance and the application
of such provisions to other persons or circumstances shall not be affected
thereby.
SECTION 3. EFFECTIVE DATE. This Residential Development Management system shall
be considered as adopted upon the date that the vote is certified by the City
Clerk, and shall go into effect immediately thereafter.
DRAFT
ORDINANCE NO.
AN ORDINANCE OF THE CITY OF
MOORPARK, CALIFORNIA, ESTABLISHING
A GROWTH MANAGEMENT SYSTEM
WHEREAS, Initiative Ordinance Measure F was adopted by the
voters of the City of Moorpark in November 1986, and established a
Residential Development Management System; and
WHEREAS, Initiative Ordinance Measure F includes a provision
for termination as of December 31, 1995; and
WHEREAS, Initiative Ordinance Measure F was adopted in
response to a period of intense residential development in the City
of Moorpark which adversely affected the capacity of the streets
and local freeway system to meet traffic demands, the capacity of
appropriate schools to absorb children, the suburban -rural
character of'the community, the quality of life prevalent in the
City and its sphere of influence, and the cost to households of
some utilities and municipal services; and
WHEREAS, it is the intent of the City Council to achieve a
steady, rather than a fluctuating, overly rapid, rate of
residential growth each year, thereby minimizing the avoidable
costs of short - sighted facility expansion; and
WHEREAS, managed residential growth will ensure that the
services provided by City, School, Utility and /or service agencies
operating in the city can be properly and effectively staged in a
manner which will not overextend existing facilities, as well as
ensure that deficient services can be brought up to required and
necessary standards; and
WHEREAS, it is the intent of the City of Moorpark to establish
control over the quality, distribution, rate, and economic level of
residential growth in the city on a year -to -year basis in order to:
• Preserve the suburban -rural character of the
community;
• Protect the agricultural land and open space of the
City;
• Provide a
citizens o
• Ensure the
recreation
• Attain a
includes a
suitable living environment for all
E the City;
adequacy of municipal, school, utility,
and park facilities and services;
balanced City growth pattern which
full mix of land uses;
Ordinance No.
Page 2
• Provide a variety of housing types and
opportunities for all economic segments of the
community;
• Prevent further significant deterioration in the
local air quality;
• Ensure that the traffic demands do not exceed the
capacity of streets, highways, and freeways;
• Maintain consistency with adopted Ventura County
population forecasts for the Moorpark growth and
non - growth areas; and
WHEREAS, the City of Moorpark has considered the effect of
this ordinance on the housing needs of the region in which it is
situated and has balanced those needs against the public service
needs of its residents and available fiscal and environmental
resources. It is hereby found and determined that this ordinance
will not reduce the housing opportunities of the region and this
ordinance is compatible with the state housing goal and regional
housing needs. It is further found and determined that, to the
extent this ordinance may be determined to reduce the housing
opportunities of the region, the findings contained herein as to
the public health, safety and welfare of the city to be promoted by
the adoption of this ordinance, justify any such reduction in the
housing opportunities of the region; and
WHEREAS, this ordinance is consistent with the goals and
policies of the City of Moorpark General Plan and City Ordinances
relating to the regulation of residential development;
NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF MOORPARK,
CALIFORNIA, DOES ORDAIN AS FOLLOWS:
SECTION 1. FINDINGS
The following findings justify the adoption of this ordinance
by the City of Moorpark in order to protect the public health,
safety and welfare:
A. Growth management is consistent with goal, policy and
implementation language in the City's General Plan, which
address the need for balanced community growth patterns;
maintaining suburban rural community character; and
preservation of important, natural features, agricultural
areas, and visually prominent hillside areas.
ordinance No.
Page 3
B. Growth management is' consistent with the Ventura County
Air Quality Management Plan. The rate of population
growth is an integral assumption in the forecast of
future air pollutant emissions in the County. The County
of Ventura is currently a "non- attainment area" for ozone
based on the state and federal ozone standards.
C. Growth management is consistent with the 1978 Ventura
County 208 Water Quality Management Plan and the July
1993 Draft Ventura County Water Management Plan. Long-
term water availability is of concern for Ventura County.
The proper management of water as a limited resource is
vital to meet the current and future demands of urban,
industrial, agricultural, and other water uses.
Currently countywide water demand is greater than locally
available water. This condition has resulted in the
overdraft of groundwater resources and increasing
dependence on imported water supplies. State imported
supplies depend on snowpack and rainfall. During the
recent drought, state water purveyors mandated use
cutbacks, making state water a somewhat unreliable
source. Local surface water supplies also suffer during
a drought and cannot supply water at volumes previously
supplied. These conditions point to the fact that even
several water sources cannot be relied upon to meet
countywide water demands during a drought. Current
conditions illustrate the need for growth management to
continue planning efforts to ensure an adequate and
reliable water supply in the short term, long term, and
during drought conditions.
D. Growth management is necessary to ensure the adequacy of
school facilities) and services. Current state law
restrictions on the maximum amount of money that projects
can be conditioned to pay for schools does not ensure
that adequate school facilities and services will be
available when needed. Growth management allows a school
district to more accurately plan facilities and services
to meet projected needs.
E. Growth management is necessary to ensure that roadway and
transit facilities in the City and region are adequate to
accommodate demand without significant impacts to levels
Of service. Currently several intersections in the City
are operating at inadequate levels of service based on
the City General Plan and Ventura County Congestion
Management Plan standards. Growth management will allow
the City and the region to more accurately plan
transportation facility improvements to meet the demand
without significant impacts based on adopted standards.
Ordinance No.
Page 4
F. Growth management is necessary to ensure that adequate
landfill capacity• is available for the region.
Inadequate landfill capacity is available in Ventura
County to meet the projected solid waste disposal needs
of County residents and businesses.
G. Growth management is necessary to ensure that adequate
library services are available. Library services in the
City are currently provided by Ventura County, and the
current property tax funding is inadequate to meet the
needs of the City's existing residents.
H. Growth management will not impact the City's ability to
provide its fair share of regional housing based on the
exemptions as described in Section 2 of this ordinance,
and the number of development allotments available yearly
as described in Section 3 of this ordinance.
I. The' City's projected population for General Plan buildout
(40,856) and an estimate of 3.39 persons's per household
through the year 2010 have been used as the determining
factors in this growth management ordinance as documented
in Exhibit A.
SECTION 2. APPLICABILITY
The provisions of the Growth Management System shall apply
from the effective date to all residential development including
mobilehomes in the City of Moorpark with the exception of the
following exempt residential development?
A. Projects of not more than four residential dwellings,
limited to only one such project per developer per
calendar year.
B. Fourplexes or lesser numbered multiple dwellings on a
single existing lot.
C. Single family residential units on a single existing lot.
D. Rehabilitation or remodeling of an existing dwelling,
conversion of apartments to condominiums, or conversion
of mobilehome parks to condominiums, so long as no
additional dwelling units are created.
E. Dwelling units reserved for very low income, lower
income, or senior citizen households pursuant to an
affordable housing or development agreement.
F. Projects of residential dwellings with a minimum lot size
of five acres per dwelling.
G. Second dwellings as defined in the City of Moorpark
Zoning Ordinance.
Ordinance No.
Page 5
SECTION 3. YEARLY ALLOTMENTS'
The number of new residential development allotments available
for award each year in the City of Moorpark, except for dwelling
units exempted pursuant to the provisions of Section 2, shall be
two hundred and fifty (250).
If all or a portion of the two hundred and fifty (250)
allotments that are available for award in any calendar year, are
not awarded in that year, those non - allocated allotments shall be
carried over to each ensuing calendar year, subject to a limitation
that the maximum number of carryover allotments shall not exceed a
total of five hundred (500) at any time. Such carryover allotments
shall be in addition to the allotments that are otherwise available
per calendar year pursuant to the preceding paragraph.
If any allotments previously awarded to a project are
rescinded by the City Council, pursuant to Section 9, those unused
allotments shall be added to the pool of non - allocated development
allotments available for award during any calendar year, subject to
a limitation that the maximum number of rescinded allotments plus
non - allocated carryover allotments, described in the preceding
paragraph, shall not exceed a total of five hundred (500) at any
time.
The number of annual development allotments shall be
continuously applicable to the city's jurisdictional boundaries and
shall not be modified by reason of annexation or additional
territory.
SECTION 4. DEVELOPMENT ALLOTMENT LIST
The Department shall'keep a list of approved residential
planned development (RPD) permit numbers in chronological order
based on date of permit approval. This list shall be known as the
Development Allotment List, and shall begin with the RPD Permit
that has the oldest approval date and end with the most recently
approved RPD Permit, unless otherwise positioned due to the use of
bonus points as provided for in Section 6.
A. The Development Allotment List shall contain the following
information:
1.
The
project
RPD permit number.
2.
The
total number of project dwelling units requiring
development
allotments.
3.
The
number
of allotments awarded for each RPD project.
4.
The
date of
RPD Permit approval.
Ordinance No.
Page 6
B. The ranking of a project on the Development Allotment List
shall not be changed after passage of the base year in which
the RPD Permit had been approved.
C. If a residential project is awarded bonus points during the
base year of RPD Permit approval, pursuant to the process
described in Section 6, the List shall be updated within two
working days of the decision to award the bonus points, and
the updated list shall be published in a weekly newspaper of
general circulation, as defined in Section 6008 of the
Government Code, for the City of Moorpark.
SECTION 5. DEVELOPMENT ALLOTMENT AWARD PROCESS
The owner or project developer (hereafter called applicant) of
a property, for which a RPD Permit has been approved and included
on the Development Allotment List, shall be eligible to apply to
the Department for one development allotment for each non - exempt
dwelling unit in the approved RPD project.
A. Each applicant for development allotment(s) shall apply on a
form provided by the Department.
B. A completed application for development allotment(s) must be
filed with the Department no later than the last working day
of each calendar year. Any application deemed incomplete by
the Department will not be considered as accepted for filing.
C. Allotments for the previous year, pursuant to Section 3, shall
be awarded each calendar year no later than the last working
day of March.
D. Allotments shall be awarded for a RPD project based on its
position on the Development Allotment List.
E. The City Council shall consider at a noticed public hearing
the rankings of the proposed developments on the Development
Allotment List, along with any action taken by the Planning
Commission concerning the award of bonus points pursuant to
Section 6, and shall award development allotments from that
List. Notice of the hearing shall be provided consistent with
Section 6008 of the Government Code. After closing the public
hearing, the City Council shall award all allotments for which
it has received application, not to exceed the maximum number
of allotments available as established in Section 3 herein.
F. If the first RPD project on the Development Allotment List
does not utilize all of the allotments available, then the
next project on the List will be eligible for award of
allotments. This process shall continue until there are no
allotments available or until there are no more RPD projects
on the List, whichever comes first.
Ordinance No.
Page 7
G. If the property owner or'developer of a RPD project fails to
submit an application for development allotments, no
allotments shall be awarded that project.
H. If a RPD project, for whatever reason, is not awarded
development allotments, or is awarded only a portion of the
allotments required to develop the project, that project shall
maintain its position on the Development Allotment List until
all required allotments have been received.
I. No single applicant may be awarded more than 50 percent (50 %)
of all allotments available during a single allotment year.
SECTION 6. BONUS POINTS
Any RPD project which is on the Development Allotment List may
have its position on the List improved if bonus points are
obtained. Bonus points will be awarded in recognition of a
project's contribution to the achievement of the goals of the
Growth Management Ordinance.
As provided for below, the owner or developer of a property
for which a RPD Permit has been approved may submit an application
to the Department for bonus points at any time prior to the last
working day of December of the calendar (base) year that RPD Permit
approval is received. As identified in Section 5, RPD projects
approved during the same calendar year will initially be ranked on
the Development Allotment List, in chronological order, based on
the date of approval of the RPD Permit. If a RPD project receives
a bonus point, it will increase its ranking on the Development
Allotment List for the base year of RPD Permit approval. The RPD
project with the most bonus points will be placed at the beginning
of the List; other RPD projects with lesser points stall follow in
descending order of points. If one or more projects receive equal
bonus points, those projects would be ranked in chronological
order, based on the date of RPD Permit approval.
The application and evaluation process for bonus points shall
be as follows:
A. Applicants for bonus points shall apply on a form provided by
the Department. A complete application and a processing fee
must be submitted to the Department no later than the last
working day of December of the base year that the RPD Permit
was approved by the city. In order for an application to be
deemed complete by the Department, it must include all
components required to allow a determination of eligibility
for bonus points as described in subsection C of this Section.
The processing fee to be submitted with the application shall
be established by resolution of the City Council.
Ordinance No.
Page 8
B. A noticed public hearing, shall be held by the Planning
Commission on the second Monday of January for the purpose of
evaluating applications for bonus points and finalizing a
recommendation to the City Council. Notice of the hearing
shall be provided consistent with Section 6008 of the
Government Code. The Planning Commission shall make its
recommendation decision no later than 15 days from the date of
the public hearing.
C. The following criteria shall be used by the Planning
Commission to evaluate applications for bonus points and
develop a recommendation to the City Council for bonus point
award.
1. One (1) point shall be awarded for every one percent (1%)
of value of the infrastructure /amenity to be provided,
which was not required as a condition of the RPD Permit
approval. Said percent shall be calculated as a percent
of the appraised value of the project (at the time of RPD
Permit approval), and the appraised value of the
contribution.
a. The "infrastructure /amenity" shall be defined as a
list of projects which is compiled by the City
Council on a yearly basis and which is considered
to be important to the attainment of the goals of
the Growth Management Ordinance. This list is to
be known as the Growth Management Goal Attainment
(GMGA) list, and shall be established by resolution
of the City Council. The GMGA list shall be in
order of priority.
b. The applicant may either build the infrastructure/
amenity or may contribute monetarily to the GMGA
fund. All contributions made to the GMGA fund may
only be used to capitalize projects on the GMGA
list.
C. The appraised value of the project and any
"infrastructure /amenity" shall be based on an
appraisal report. The appraisal report must be
completed by the deadline for application submittal
pursuant to subsection A, above. The applicant
shall bear the cost of preparation of said
appraisal report. Appraisals shall be conducted by
a qualified appraiser, selected by the city,
pursuant to the following process:
d. The City shall maintain a list of qualified
appraisers, and shall make said list available to
applicants.
Ordinance No.
Page 9
e. The applicant shall request in writing that the
Department obtain informal bids from three
appraisers, selected by the applicant, from the
City's list of qualified appraisers.
f. The City shall then request informal bids from the
three appraisers relative to the value of the
applicant's project and any "infrastructure /
amenity" to be provided.
g. The lowest bidder shall be awarded the task of
preparing the required appraisals of the project
and the proposed improvement as listed on the GMGA
list. One of the other bidders may be awarded the
appraisal contract if the City and the applicant
mutually consent to do so.
h. The applicant shall deposit with the City, an
amount equal to the appraisal bid plus the City's
contract administration charge, as established by
City Council resolution.
i. The product of the appraiser's work shall be given
to the applicant for his inclusion with the
application for bonus point(s).
2. One (1) point shall be awarded if the project is
considered to be an "in- fill" development. An in -fill
development is defined as a RPD project which is
surrounded on three sides by existing development and
does not require the extension of water, sewer, electric,
utilities or street infrastructure to the site.
3. One or more pointjs; shall be awarded if affordable rental
or for - purchase dwelling units are provided within a RPD
project consistent with the following criteria:
a. One (1) point shall be awarded if a minimum of 5
percent (5 %) of the total RPD project dwelling
units, in excess of any inclusionary zoning
requirement, is made affordable to either very low
or lower income households pursuant to an
affordable housing agreement.
b. Two (2) points shall be awarded if a minimum of 10
percent (10 %) of the total RPD project dwelling
units, in excess of any inclusionary zoning
requirement, are made affordable to either very low
or lower income households pursuant to an
affordable housing agreement.
Ordinance No.
Page 10
C. One (1) point shall be awarded if a minimum of 15
percent (15 %) -of the total RPD project dwelling
units, in excess of any inclusionary zoning
requirement, is made affordable to median or
moderate income households pursuant to an
affordable housing agreement.
d. One (1) additional point shall be awarded if a
minimum of 5 percent (5 %) of the total RPD project
dwelling units are made affordable to moderate
income households, in addition to the provision of
very low or lower income units pursuant to either
subsection a. or b., above. -
5. One or more points shall be awarded if a minimum of 25
percent of the RPD Permit area includes rural
development, with the lot size requirements and point
allocation to be as follows:
a.
1.0
acre minimum lot size =
one (1) point
b.
2.0
acre minimum lot size =
two (2) points
C.
3.0
acre minimum lot size
= three (3) points
d.
4.0
acre minimum lot size
= four (4) points
e. If a minimum of 25 percent of the RPD Permit area
includes mixed rural lot sizes of one to four
acres, the Planning Commission shall make a
recommendation to the City Council for award of
bonus points for the project; however, the total
number of bonus points for a mixed rural lot size
development shall not exceed three (3).
6. One (1) bonus point shall be awarded if the overall
density of the RPD Permit project site is reduced 10
percent below the maximum density allowed by the General
Plan. One (1) additional point may be awarded by the
City Council if the density of the RPD Permit project
site is reduced by more than 10 percent below the maximum
density allowed by the General Plan.
D. Having evaluated each development in accordance with the
foregoing criteria, the Planning Commission shall make a
determination of bonus point assignment and recommended
revisions to the Development Allotment List, and the
Department shall then publish in a newspaper of general
circulation for the City of Moorpark, the Planning
Commission's preliminary bonus point assignment and revised
Development Allotment List based on that assignment.
Ordinance No.
Page 11
E. Any applicant who is dissatisfied with the Planning
Commission's preliminary bonus point assignment may submit
written notification of such dissent within fifteen (15) days
following the publication of the revised Development Allotment
List. Such written appeal notification will be furnished to
the City Council prior to the awarding of bonus points.
F. Following publication of the preliminary bonus point
assignment, the Community Development Department shall
schedule a City Council public hearing for the final award of
bonus points, and shall provide the council with the Planning
Commission's recommendations for preliminary bonus point
assignments and revised Development Allotment List, as well as
any written appeal notification received from applicants.
G. The City Council shall hold a noticed public hearing on the
second Wednesday of February, prior to making a final
determination of the award of bonus points and revision of the
Development Allotment List. Notice of the hearing shall be
provided consistent with Section 6008 of the Government Code.
The City Council shall make a decision as to the final award
of bonus points no later than 15 days from the date of the
public hearing.
SECTION 7. BUILDING PERMITS
No building permit for a non - exempt residential dwelling unit
shall be issued unless a residential development allotment for the
unit has been awarded; provided, however, that such building
permits shall not be issued in excess of five hundred (500) per
calendar year. If any of the five hundred (500) building permits
which are available for issuance in any calendar year are not
issued in that year, they shall not be carried over to the ensuing
calendar year.
SECTION 8. GRADING PERMITS
No grading permit for a project containing non - exempt
residential dwelling units shall be issued unless there has been an
award of development allotments for the project. When the award is
for less than the entire project, grading beyond the immediate area
of the lots for which the applicant proposes to utilize the
development allotments may be allowed in accordance with the
following:
A. The applicant executes, in a form approved by the City
Attorney, a waiver of any claim of a vested right to be exempt
from the Growth Management System as a result of grading
beyond the area for which the development allotments have been
awarded and an acknowledgment that the applicant assumes any
risks that may result from commencement of grading prior to
the award of allotments for the entire project; and
Ordinance No.
Page 12
The applicant has been awarded development allotments for at
least 15 percent (15 %) of the number of non - exempt residential
dwelling units in a project consisting of not more than one
hundred and seventy -five (175) lots, in which event the
grading may be carried out for the entire project; or
B. The applicant has been awarded development allotments for at
least 15 percent (15 %) of the number of non - exempt residential
units in the first phase of a project consisting of more than
one hundred and seventy -five (175) lots, in which event the
grading shall be carried out in phases. The phases shall be
delineated by the applicant on the tentative tract map. No
phase shall consist of more than one hundred and seventy -five
(175) lots. Grading of the first phase may commence once 15
percent (15 %) of the necessary allotments for that phase have
been awarded. Grading of the second phase and each phase
thereafter may commence once 75 percent (75 %) of the necessary
allotments for the preceding phase have been awarded.
C. The City Council may approve or conditionally approve grading
in a manner not otherwise provided for in this subsection upon
a finding that strict compliance with the provisions of
paragraph A or B would work a substantial economic or
engineering hardship on the project.
D. All graded areas shall be treated with landscaping, as deemed
appropriate by the Director of Community Development, to
prevent erosion and to reduce visual impacts of the grading.
A landscaping plan shall be approved by the Director prior to
issuance of a grading permit.
SECTION 9. FAILURE TO INAUGURATE
Should a developer fail to initiate construction within
twenty -four months after award of the development allotments, the
City Council after a public hearing may, by majority vote, rescind
all or part of the development allotments originally awarded to the
RPD project in question. Further, for a one -year period following
the decision of the City Council to rescind development allotments,
no application for new development allotments shall be accepted for
the project which had its allotments rescinded.
Any allotments rescinded by the City Council, pursuant to the
preceding paragraph, may be added to the. pool of development
allotments available for allocation during any calendar year,
subject to the restrictions specified in Section 3 of this
ordinance.
SECTION 10. TERMINATION OF ORDINANCE
This ordinance shall remain in effect only until December 31,
2005, and as of that date shall expire, unless earlier repealed,
amended, or extended by the City Council.
Ordinance No.
Page 13
SECTION 11. AMENDMENT OF ORDINANCE
Any amendment of this ordinance shall require a public hearing.
SECTION 12. SEVERABILITY
If any section, subsection, sentence, clause, phrase, part or
portion of this Ordinance is for any reason held to be invalid or
unconstitutional by any court of competent jurisdiction, such
decision shall not affect the validity of the remaining portions of
this Ordinance. The City Council declares that it would have
adopted this Ordinance and each section, subsection, sentence,
clause, phrase, part or portion thereof, irrespective of the fact
that any one or more section, subsections, sentences, clauses,
phrases, parts or portions be declared invalid or unconstitutional.
SECTION 13. EFFECTIVE DATE
This Ordinance shall become effective thirty (30) days after
its passage and adoption.
SECTION 14. CERTIFICATION AND PUBLICATION
The City Clerk shall certify to the passage and adoption of
this ordinance; shall enter the same in the book of original
ordinances of said city; shall make a minute of the passage and
adoption thereof in the records of the proceedings of the City
Council at which the same is passed and adopted; and shall, within
fifteen (15) days after the passage and adoption thereof, cause the
same to be published once in the Moorpark News - Mirror, a weekly
newspaper of general circulation, as defined in Section 6008 of the
Government Code, for the City of Moorpark, and which is hereby
designated for that purpose.
1993.
i T
PASSED AND ADOPTED this day of
ATTEST:
Lillian E. Hare
City Clerk
Mayor of the City of Moorpark, California
Ordinance No.
Page 14
EXHIBIT A
CONTROLLED GROWTH MANAGEMENT PLAN
The maximum density based on City General Plan buildout of 14,911
dwelling units; plus an additional 147 dwelling units as requested
in a currently filed application for an amendment to the Carlsberg
Specific Plan; minus 8,280 existing dwelling units as of 1 -1 -94;
minus 948 dwelling units which represent an estimate of the number
of allotments that are expected to be made available under existing
Measure F and vested prior to expiration of that ordinance; minus
an estimate of 1,132 dwelling units that will be exempt from any
growth management ordinance based on a prior court decision and
rural land use designation requiring 5 acre or larger lot size;
minus an estimate that 939.60 dwelling units (20 percent) will be
exempt because they will be "affordable ", "senior ", or other exempt
units as defined in Section 2 of draft ordinance; and based on the
City's General Plan buildout year of 2010, the number of dwelling
units required over a 15 -year period is then calculated:
Maximum Density of City General Plan = 14,911 du's (1992
Land Use Element)
14,911 du's + 147 Carlsberg Specific Plan du's (552 -405)
= 15,058 du's
15,058 du's - 8,280 du's (total du's in City as of 1 -1-
94) = 6,778 du's not yet constructed
6,778 du's - 948 du's (Measure F allotments already
allocated or expected to be allocated by 1995) = 5,830
du's
5,830 du's - 1,132 du's (estimate of units exempt from
new ordinance based on prior court decision and rural
land use designation requiring 5 acre or larger lot size)
= 4,698 du's
41698 x 20% (percentage of all other new dwelling units
expected to be exempt because they will be "affordable ",
"senior ", or other exempt units as defined in Section 2
of ordinance) = 939.60 exempt units
41698 du's - 939.60 du's 3,758.40 du's requiring
allotments
3,758.40 du's / 15 years (1996 through 2010) = 250.56
du's required per year through 2010
Round to 250 yearly allotments
CORRESPONDENCE FROM THE PUBLIC
/MESSENGER
August 12, 1993
Mr. James Aguilera
Director of Community Development
CITY OF MOORPARK
799 Moorpark Avenue
Moorpark, CA 93021
RE: Reply to Comments at the Last Measure F Advisory Committee Meeting
Dear Mr. Aguilera:
Some comments and opinions expressed by members of the Measure F Citizen Advisory
Committee at the last meeting appeared to be either inaccurate or misleading. Since I
cannot attend the August 17 meeting, I want to go on record with this letter, replying to
those comments. My main concern is that the Committee could undermine its value to the
City Council if its recommendations are made based on inaccurate information.
I believe that there-are three fundamental issues that the Committee must understand and
deal with in order to make reasonable recommendations to the Council on this matter.
First, the City can only adopt an ordinance which limits residential construction after making
findings required by state law. Any findings must be supported by substantial evidence
(Evidence Code para. 6695).
It does not appear that reasonable evidence has been presented that "The City of Moorpark
is experiencing a period of intense residential development which is adversely affecting the
capacity of the streets and local freeway system to meet traffic demands, the capacity of
appropriate schools to absorb children ... the quality of life prevalent in the City—and the cost
to households of some utilities and municipal services."
Indeed, in the intervening period since Measure F was adopted, the intensity of residential
development has slowed to a crawl, over 1,000 unused allocations have accumulated,
significant improvements have been made to the Citvs infrastructure and services, and the
quality of life prevalent in the City has been preserved, if not enhanced. Actual permits
issued have approached 460 per year without a crisis occurring in public health, safety and
welfare. In other words, there is no evidence of the potential harms mentioned in the
findings of the original Measure F having occurred.
J
17512 VON KARMAN AVENUE
IRVINE, CALIFORNIA 92714
(714) 474 -1300 / FAX 474 -8411
August 12, 1993
Mr. James Aguilera
Director of Community Development
CITY OF MOORPARK
Page 2
Also, if a legal challenge were to occur, state law places the burden of proof upon the City
to prove that the restrictions on allocations and permits are "necessary" (not just "reasonably
required" or "desirable "). If the findings required by State Law can not be clearly
established, it will not be legally possible for the City Council to extend the current
ordinance or adopt a similar ordinance with the same basic objectives. And if the Council
decides to go ahead and do so anyway, the ordinance will be very vulnerable to legal
challenge.
Second, it is a fundamental assumption previously established in a number of court cases
(for example L Sher Communications_v�C'y of Walnut Creek. 52 Cal. 3d 531, 277 Cal.
Rptr. 1, 802 P.2d 317 [1990)) that a growth control or growth management ordinance must
be consistent with the City's General Plan. This is because California State Law establishes
the General Plan as the fundamental legal document upon which a City's planning and
development policies, ordinances and entitlements are based. Consequently, if there is not
• clear consistency between the growth projections included in the existing General Plan and
• subsequently passed growth control or growth management ordinance, this will also
increase the possibility of a successful legal challenge.
In addition, the law requires that the City allow its fair share of regional housing to occur.
Consequently if the Committee recommends an ordinance with an annual allotment
schedule or other constraints to development that is not reasonably consistent with both the
City's projections for growth over the period incorporated into the recently updated General
Plan, or consistent with the state's "Fair Share Statute" (Government Code para. 65583 and
65584), it is placing the City Council in a legally vulnerable position.
The notion that a growth management or growth control ordinance does not have to be
consistent with the growth estimates contained in the recently updated General Plan is
incorrect. In fact, any "zoning" cap placed on development that prevents development
anticipated and approved in the General Plan would be illegal. And since the General Plan
was updated only one year ago, it would be difficult to argue that the General Plan was out
of date and needed updating.
Third, it is very important for the Committee to understand that the original Measure F,
passed by a vote of the people in an election, was modified in a settlement agreement after
a successful legal challenge was brought forth by the BIA. The point here is that just
because the voters decide to use the ballot box to attempt to make growth management and
growth control decisions does not mean that the ordinance will stand up to legal challenge.
MESSENGER
August 12, 1993
Mr. James Aguilera
Director of Community Development
CM OF MOORPARK
Page 3
In conclusion, in order to avoid placing the City of Moorpark in a situation where it may
be inviting further legal challenge on a growth control or growth management ordinance,
it is very important for the Committee to avoid making recommendations to the City
Council to adopt an ordinance that is so vulnerable to legal attack.
I appreciate this opportunity to present my concerns to you and the Committee.
Sincerely,
MESSENGER IN VESTMENT COMPANY
Gary Austin
Vice President
GA:ts
MESSENGER
f &MESSENGER
August 3, 1994
Mayor Paul Lawrason
CITY OF MOORPARK
799 Moorpark Avenue
Moorpark, CA 92705
P t
RECEIVED
AUG 0 31994
City of Moorpark
RE: Ad Hoc Committee's Recommended Growth Management Ordinance
Dear Mr. Mayor and Council Members:
Messenger Investment Company (MIC) has previously offered comments to the "growth
management ordinance ad hoc committee ", the Director of Community Development
and the city council concerning the ad hoc committee's recommendations. Our
comments have focused upon the ad hoc committee's lack of evidence, required by state
law (findings), supporting the need for the proposed ordinance and that justify the
committee's recommendations, the lack of consistency of the committee's
recommendations with the city's Measure F settlement agreement with the BIA, the lack
of consistency with the city's updated General Plan, and the arbitrariness and unfairness
of an annual numeral cap on allotments.
The purpose of this letter is to raise additional concerns, and to request the city council
to table its deliberations on this matter until these and other questions are more
adequately addressed by staff and the city council. We believe the following items are
relevant to your deliberations.
First, the state of California has experienced a prolonged economic recession that has
had a major dampening effect on economic growth. This in turn has brought about
major reductions in government income from taxes, fees and other revenue sources
statewide. The result is a multi -year state budget deficit and significant reductions in the
flow of revenues to the city. One of the consequences of the recession is that growth has
slowed to less than 2% per year in Moorpark over the last four or five years. This is
evident from the number of surplus allotments that are currently available (over 1000).
This raises the question why a growth management ordinance is needed if the existing
ordinance was neither effective nor necessary?
Second, the city's adoption of the General Plan Update two years ago resolved many
concerns regarding where and how much growth would occur in Moorpark in the next
fifteen to twenty years. The General Plan designated specific plan areas, provided a
-' \'ON KARMA\ A VF \l: E
I R V I\ 1, C A L I F 0 R N I A 7 1 i
( 7 1 .1 ) 4 7 4 - 1 3 0 0 F A X 4 7 4 4 1 1
August 3, 1994
Mayor Paul Lawrason
CITY OF MOORPARK
Page 2
limit on residential development within each of these areas, and set up procedures for
approving the specific plans. This gave the city clear control over where and how much
future growth would occur. With these controls in place, the proposed ordinance seems
not only redundant but also excessive and punitive to future home buyers because it
creates a costly multiple entitlement system, e.g. the specific plan and EIR process as
well as the growth management ordinance approval process.
Third, the distribution and allocation of funds between the state and local government
have undergone a radical change as a result of the recession, the state's deficit, and other
factors. This has brought about changes in the way many cities go about funding capital
improvements and paying for needed public services and facilities. These circumstances
have created the need for greater cooperation between cities and the private sector,
because cities have fewer sources of funds to pay for needed improvements. The ad hoc
committee's proposed growth management ordinance sends a totally different message to
the private sector.
Fourth, real estate developers and builders are now more than ever severely constrained
by federal, state and local regulations, more rigorous project financing criteria, legal
challenges and a problematic market. Compounding this is local government's growing
reliance on developers to provide community facilities that often exceed that needed to
support the proposed project. As a result, a number of cities and counties are studying
ways of streamlining entitlements, reducing costs, and encouraging development. This
change in attitude has been evident in Moorpark's neighbor city to the east, Simi Valley.
Fifth, growth management ordinances with numerical caps have not stood up well in
courts. Last month, the 4th Appellate District Court of Appeal ruled against the City of
Oceanside's voter - approved growth control ordinance after over five years of litigation
and over $2.5 million in legal fees. The ordinance must now either be repealed or
appealed to the State Supreme Court. The point here is that even voter - approved
ordinances (like Oceanside's growth control ordinance and Moorpark's Measure F) have
been successfully litigated, raising additional doubts as to the wisdom of approving the ad
hoc committee's proposed ordinance.
Considering the information and circumstances mentioned above, MIC is greatly
disturbed by the possibility that the city council may be considering adoption of the ad
hoc committee's recommended ordinance. It is our belief that the draft ordinance as it
is currently written is not only vulnerable to legal challenge but also unworkable from a
project financing standpoint. The Hidden Creek Ranch project (Specific Plan No. 8)
would be financially unfeasible. We would have no choice but to withdraw our proposal
because it would be virtually impossible to obtain financing for the project under the
constraints created by the ordinance as proposed. Although this might be viewed as a
jftMESSENGER
I N V E 5 7 M E N i C 0 M P A N T
August 3, 1994
Mayor Paul Lawrason
CITY OF MOORPARK
Page 3
victory for those opposed to further growth in the city, it would also preclude the city
from achieving a number of desireable improvements such as additional roads, recreation
amenities, retail facilities in the eastern area of the city, affordable housing and
permanent open space accessible to the public.
In light of the many concerns and questions not adequately addressed by the ad hoc
committee, the possible consequences of the recent City of Oceanside ruling, and the
need to better understand how this proposed ordinance might affect the provision of
affordable housing in the city, we would like to suggest that a sub - committee of the city
council be appointed by the mayor to 1) review the recommendations of the ad hoc
committee, 2) identify areas where more information is needed, 3) evaluate the potential
fiscal impact to the city, and 4) consider and bring forward to the full council possible
revisions and options to the proposed ordinance.
Thank you for this opportunity to comment on this matter.
Sincerely,
MESSENGER INVESTMENT COMPANY
'4w'� (I L
Gary Austin
Vice President
GA:noh
jftMESSENGER
I N V E S T ME N T C 0 M P A N Y
all
GREATER LOS ANGELES / VENTURA CHAPTER
Building Industry Association of Southern California, Inc.
24005 Ventura Blvd., Suite 102 • Calabasas, CA 91302
(818) 591 -2001 • (805) 659 -4745 • FAX (818) 591 -0072
July 20, 1994
Honorable Mayor Lawrason and Councilmembers
City of Moorpark
799 Moorpark Ave.
Moorpark, CA 93021
RE: Proposed Growth Control Ordinance
Dear Mayor Lawrason:
RECEIVED
JUL 2 0 1994
City ui moorpark
In speaking with City staff and Councilmembers, it is our
understanding the tonight's City Council meeting will likely run
very late into the evening and may possibly result in continuing
the discussion on the growth control ordinance. For this reason,
BIA would like to submit the following general overview of changes
in the development review process tonight, in lieu of orchestrating
testimony from related industry experts. If, after reviewing our
comments, the City would like to schedule a future meeting with a
panel of experts, we would be delighted to coordinate something
with you.
Over the past ten years, the development industry has undergone
increasing regulation and control from updates to many federal,
state and local legislative policies. Significant among these are
the State Clean Air Act and the Federal Clean Water Act. These
legislative programs require extensive review and mitigation for a
development project's potential impacts on both air and water
quality. In addition to new permitting requirements, with each
revision, the acts more clearly delineate the mitigation
requirements for development projects.
In addition, a heightened interest in the Federal Endangered
Species Act has not only raised the issue of species protection,
but has resulted in additional review of properties to insure
avoidance or mitigation against habitat loss to development. In
fact, in 1990, the State introduced into law the Natural Community
Conservation Plan to encourage multi- species habitat planning,
which has had a significant imroac*_ on land availability within
Southern California.
A,i Aft„icte of 1 Et r:!-..a c--,., *r)(, C31A
Mayor Lawrason
7/20/94
page 2
Outside of state and federal land use related policies, the
building industry has been greatly impacted by the Federal
Government's imposition of new regulations on the lending industry.
Known as FIREA, the federal act restrictes the extent to which a
lending institution can participate in the development of projects.
Whereas, large outlays of cash for land ac;aisition, infrastructure
and construction work were readily available to builders in the
'80s, today's lending environment has restricted builders to
smaller projects and phasing requirements. The current recession
further impacted the bank's interest in loaning on Southern
California projects, which has cause the building industry to seek
out multiple bank "gap" financing and other complicated funding
mechanisms to move projects forward. Thus, today the progress of
a development project is dictated greatly by its lending
arrangement.
Our current, recession has had obvious impacts on the development
activity in the City of Moorpark. Unlike conditions in 1986, the
City currently has an overabundance of permits available as a
result of the overall decline in building activity.
When the original growth control measure was initiated in Moorpark,
the City was transitioning from a rough County imposed General Plan
to one of its own. Today, the City of Moorpark can be proud of the
sophistication with which the General Plan has been revised to
effectively map out the future development of Moorpark. Crafted by
the Citv with extensive community input, the Plan significantly
directs the pattern and rate of ,rowth Yor the City.
As the Plan has been updated, and development patterns have become
more established, the City has gained a greater understanding of
its own infrastructure needs, which has helped identify measures
needed to effectively accommodate i.ncieases in population. The
Nolan (nexus) Case in 1986 he -:peci F•-) clarify the limits of
mitigation, but in fact the ovetal1 evolution of user fees
replacing property tax revenues l:as resulted in greater mitigation
to fund capital improvements as aumerous entities have identified
relationships between new users and services. Since the enactment
of the original Growth MeasurF. in 1986, . new home fees have
increased roughly 300 %, such that today the entire downpayment for
a house goes to cover fees.
In concert with the development of the General Plan, the citizens
of Moorpark have enjoyed and increasingly enhanced public
participation _ process. CEQA mandates the provision of
environmental review by the public: to ensure that any and all land
use decisions are appropriately debated by affected and interested
parties. Expanded notificati n procedures, advancements in
,. Mayor Lawrason
7/20/94
page 3
communication technology (television and news coverage), and a
general increase in overall* public interest has greatly enhanced
the public's role in project approvals.
Each of these factors contribute to a dramatic change in the
development process for the City of Moorpark since 1986, a change
which affords much greater control of local land use decisions and
allocation of resources. We believe that these and other factors
invalidate the need for an extension of the growth control
ordinance, and urge the Council to carPfiilly consider these issues
before moving forward.
Thank you for the opportunity to comment. We would be happy to
provide the City with additional information, through scheduled
testimony or whatever format yoi: may prefer.
T Zrely,
inke
Executive Officer
��T
GREATER LOS ANGELES / VENTURA CHAPTER
Building Industry As=k t n of Southem California. Inc.
24005 Ventura Blvd., Suite 102 - Calabosas, CA 91302
(818) 591 -2001 . (805) 659 -4745 • FAX (818) 591 -0072
May 25, 1994
Honorable Mayor Lawrason
City of Moorpark
799 Moorpark Avenue
Moorpark, CA 93021
Dear Mayor laawrason:
At your recent town hall meeting on Saturday, May 5, I made la brief presentation on behalf of
the Building Industry Association regarding changes in the development review process and
finance law which have significantly impacted (limited) the rate of development in California
cities, particularly in relation to infrastructure needs. Afterwards, the Council responded with a
request for more information.
We would be happy to make a presentation on these regulations and to encourage input from the
banking community regarding the extent these mew requirements impact the City of Moorpark.
We have a scheduling challenge with the next hearing date however, and would respectfully
request an opportunity to present this information at a future Council meeting.
it
Unfortunately I am scheduled to be out of the Country on Jurr'e 1st and cannot attend. Please
advise us as to whether it would be acceptable for us to provide input at a future hearing date.
I am scheduled to leave town Friday, May 27th. If 1 do not re9ch you by telephone prior to my
departure and you have additional questions, please feel free to contact our Governmental
Relations Chair, Carla Ryhal of Cox Castle Nicholson,(310) 284 -2283, for assistance.
In addition, during the Town Fall meeting, Counciimember Perez indicated that the City attorney
bad commented on our previous correspondence and that her response would be made available
to Messenger Development and the BIA. We would like to receive a copy of her response to our
questions and comments and sincerely appreciate the Council's; efforts to keep us informed.
Thank you for your consideration of our request.
ricer iy,
0 ink
v Officer
MAY 26 '94 22 29
An Affiliate of the NAH$ and the CBIA
Al Ar,41 (710771 vnr-r nn-+
Date: �'z3 -�
The Honorable City Council, City of Moorpark,
799 Moorpark Avenue
Moorpark, CA 93021
Dear Honorable City Council:
I support the proposed ordinance drafted by the Measure F/
Comprehensive Planning Ordinance Ad Hoc Committee. I think it is
very important to protect our current quality of community life against
the damages of too rapid development. I want the City to carefully
manage its growth.
Respectfully Yours, /
/ C i
Name and Address
'~ RECEIVED --
M AY 2 7 X994
City of Moorpark
Date: csLI
The Honorable City Council, City of Moorpark,
799 Moorpark Avenue
Moorpark, CA 93021
Dear Honorable City Council:
I support the proposed ordinance drafted by the Measure F/
Comprehensive Planning Ordinance Ad Hoc Committee. I think it is
very important to protect our current quality of community life against
the damages of too rapid development. I want the City to carefully
manage its growth.
ectfully Yours,
E, B g Wbg�pnaild k MMfwood W
MOO' CA.__ 1330
VEI
MAY 16 1994
City of Moorpark
h �
/IXMESSENGER
May 13, 1994
Mr. James Aguilera
Director of Community Development
CITY OF MOORPARK
799 Moorpark Avenue
Moorpark, CA 93021
RE: Comments Regarding the Measure F Advisory Committee's Recommendations
Dear Mr. Aguilera:
The purpose of this letter is to draw your attention to the comments contained in
Messenger Investment Company's letter of August 12, 1993 (copy attached). After
reviewing the recommendations made by the City of Moorpark's Measure F Advisory
Committee, and listening to the public comments provided at the two previous public
hearings on the matter, we feel that the concerns we raised in our letter of August 12 are
still relevant and need to be considered by the City Council and staff.
Specifically, we do not believe that there are findings that justify the recommendations of
the Advisory Committee. As you know, residential growth has slowed to a crawl since
1988 (less than 2% per year). Second, the committee's recommendations do not appear
to be consistent with the terms of the settlement agreement between the City and the
BIA. Third, the mathematical calculations used to derive the recommended yearly
allotments provided by a representative of the Advisory Committee are suspect and do
not appear to be consistent with the City's General Plan.
As a means of helping resolve the concerns of those who fear uncontrolled growth in the
future, we would like to point out that any significant growth that is likely to occur in the
City of Moorpark from January 1, 1996 on will almost certainly come as a result of the
approval of a specific plan. The process by which a specific plan is evaluated and
subsequently approved is a rigorous one, giving the City a tremendous amount of direct
control. In addition, the City can utilize development agreements to further guarantee
and assure that any resulting growth will only occur under the most stringent conditions
and requirements.
Consequently, it would seem disadvantageous to the City to encumber itself with a rigid,
arbitrary ordinance that might significantly impair the City's ability to negotiate
17512 VON KARMAN AV EN U li
I R V I N E , C A L I F O R N I A 9 2 7 1 4
(7 1 4) 4 7 4- 1; 3 0 0 FAX 4 1 -8 a 1 1
May 13, 1994
Mr. James Aguilera
Director of Community Development
City of Moorpark
Page 2
desireable public improvements as a condition of approval of a particular specific plan.
Therefore we would recommend that specific plans with accompanying development
agreements be excluded from the requirements of any future Measure F or similar
ordinance.
Thank you for your further consideration of these matters.
Sincerely,
MESSENGER INVESTMENT COMPANY
Gary AustiL
Vice President
GA:noh
Enclosure
cc: City Council members
MESSENGER
I N V E S T M E N T C O M P A N Y
Date:
The Honorable City Council, City of Moorpark,
799 Moorpark Avenue
Moorpark, CA 93021
Dear Honorable City Council:
I support the proposed ordinance drafted by the Measure F/
Comprehensive Planning Ordinance Ad Hoc Committee. I think it is
very important to protect our current quality of community life against
the damages of too rapid development. I want the City to carefully
manage its growth.
lowreirrm
i
Name and Address
P�
_Isco" 090
jig, to
C+"o a Moopa*
Date:
The Honorable City Council, City of Moorpark,
799 Moorpark Avenue
Moorpark, CA 93021
Dear Honorable City Council:
I support the proposed ordinance drafted by the Measure F/
Comprehensive Planning Ordinance Ad Hoc Committee. I think it is
very important to protect our current quality of community life against
the damages of too rapid development. I want the City to carefully
manage its growth. a u w I t-� � 2 v, I �nr„ ,,- � � - t q- Lt ""Y' t-, I
Respectfully Yours,
vx-'�-V C' pc'�
Name and Address
15-05-- L Cc-,--(/"s �C-r I" O r'Ue
ML>C,r PC, r(C) Ck} C136 -L(
M AY o 5 V94
City of Moorpark
Dale: May qj l
The Honorable City Council, City of Moorpark,
799 Moorpark Avenue
Moorpark, CA 93021
Dear Honorable City Council:
r
support the proposed ordinance drafted by the Measure F/
Comprehensive Planning Ordinance Ad Hoc Committee. I think it is
very important to protect our current quality of community life against
the damages of too rapid development. I want the City to carefully
manage its growth.
Respectfully Yours,
Name and Address
t1 0 17o //v /-t I-7"
T)
-Pa )'V7 I'
It
May 4, 1994
Statement to the City Council, Moorpark, CA
Item 9.13. consider a Growth Management Ordinance:
Honorable Mayor and Members of the Council,
Whenever the growth of our community is publicly debated, one fundamental question always
needs to be addressed: will the anticipated growth improve or debase the quality of life al-
ready existing in Moorpark. The answer to this question always depends on the status of the
person who will answer. Certainly growth will improve the life of some while devaluing the
living standard of others. As councilmembers you have the difficult task of seeking a balance
between the needs of the few and the needs of the many.
Look at our community today: low crime, a good variety of housing, continuing commercial
growth, excellent schools, improved traffic circulation. Certainly there is room for improvement:
too much industrial space stands empty, our downtown areas still need revitalization and public
services still need improvement. But we have come a long way since incorporation in 1983
and you the members of the present city council, and those of us who served before, can be
rightfully proud.
With Measure F soon to sunset, we all have a choice to make: how fast should our community
grow? I advise to proceed with caution. Take the conservative point of view. As the old adage
says "don't fix it if it ain't broke." There is very little in our community that will be improved with
another rapid spurt of growth as we saw in the 1980's.
As a member of the current School Board, but more importantly as a parent of three public
school children, I would like to make some personal observations about educational impacts.
Moorpark has a fine public school system that is steadily improving. But with the current
funding crisis in California there is precious little funding for new school construction. Without
a local dollar- for - dollar match Moorpark has little chance of obtaining new site construction
funds. Keep in mind that the price tag for new schools is staggering:
Elementary School - about $6 million
Middle School - about $ 15 million
High School - $25 million to $30 million
To place 50% of this magnitude financial burden on new construction will be onerous. Simi-
larly, to attempt to tax the existing community for new school construction caused by growth
will be unpopular to say the least. If Measure F expires and the Moorpark City Council allows
a spurt of new residential development, how will we pay for this new construction?
The school district could handle some growth without developing new school sites. We could
saturate our existing schools by moving more relocatable buildings onto school fields and
parking lots. We could institute double sessions, go to year -round school. But I would con-
sider this to be a shame, just as our schools are finally enjoying some elbow room and over-
crowding is being alleviated.
You have a tough decision to make, I know I've been in your shoes. You have received and
will continue to receive inordinate pressure from development interests to let the managed
growth ordinance lapse or weaken it to the extent that it is meaningless. My hope is that you
will consider what is best for the many rather than for the few. Think of our schools, our police
service, our fire protection, our traff ic circulation. Moorpark does not have to emulate large
cities. Bigger is not necessarily better. In my mind, quality is generally preferable to quantity.
If I was still serving on the City Council my position would be the following:
Extend measure F for at least an additional 10 years.
- Adopt a yearly allocation lower than the suggested 250 units per year.
Don't allow banking of the allocation, prevent growth surges,
- Submit the ordinance to the voters to give it some permanence.
We have a great community, we used to have a great city plan with an eventual population of
about 36,000 residents. Don't open up the flood gates again. Keep the lid on run away devel-
opment. Act responsibly as our representatives, not as proponents of special interest.
Sincerely,
Clint D. Harper, Ph.D.
4044 Oak Glen Court
Moorpark, CA 93021
(805) 529 -3860
ip�
MOORPARK
UNIFIED SCHOOL DISTRICT
30 Flory Avenue, Moorpark, California 01021
May 4, 1994
Jaime R. Aguilera
Director of Community Development
City of Moorpark
799 Moorpark Avenue
Moorpark, California 93021
Dear Mr. Aguilera:
(805) 378 -6300
RECEIVED
MAY 0 41994
City of Moorpark
Thank you for your letter dated April 14, 1994 which conveyed the invitation of the City
Council requesting that I attend the public hearing on the subject of the proposed new
growth management ordinance. I appreciated the opportunity which you provided me to
discuss potential concerns of the Moorpark Unified School District related to residential
development and the proposed growth management ordinance. Below I will outline and
discuss the current student housing capacity of the District, the needs of the District in the
area of capital outlay, the financial options available to school districts in California in
meeting increases in student enrollment and the reality of the availability of such options
to the District, the current financial ability of the District to provide adequate school
housing for a growing student population and comments on the proposed new growth
management ordinance.
CURRENT MAXIMUM SCHOOL CAPACITY AND ENROLLMENTS
Grades K -2/K -3 Capacity (1) Enrollment
Campus Canyon 660 556
Mountain Meadows 750 715
Peach Hill 780 758
Grades 3 -5/4 -5
Arroyo West 720 655
Flory 870* 548
(1) Capacities of classrooms are calculated at maxinnun capacities which would
become realistic with the elimination of computer labs and other specialty
classrooms.
*This figure includes the use of the relocatable buildings at Flory and Chaparral.
Once the modernization of Flory and Chaparral is complete the relocatable buildings
will be returned to the State of California.
BOARD OF EDUCATION: PAMELA CASTRO, President; GREG BARKER, Vice President; CLINT D. HARPER, Ph.D., Clerk;
TOM BALDWIN, Member; GARY CABRIALES, Member, THOMAS G. DUFFY, Ed.D , District Superintendent
An Equal Opp,,rtunu• Emplane•
Mr. Jaime Aguilera
May 4, 1994
Page 2
Middle Schools /6 -8
Chaparral 1500* 1291
Mesa Verde 864 0
High Schools
Moorpark High /9 -12 1800 1366
Community High /9 -12 75 71
CAPITAL OUTLAY NEEDS
The District will need a new elementary (K -2/K -3 and 3- 5 /4- 5)school in the near future; all
District elementary schools are at or near capacity for classrooms, toilet rooms, food service
and multi - purpose and other ancillary uses. Future development within the District will
require full mitigation of student housing needs. State Emergency relocatable buildings
have been used effectively to deal with growth within the District and will continue to be
used as a temporary solution to student enrollment increases but cannot be relied upon for
permanent housing needs.
FINANCIAL OPTIONS TO DISTRICTS FOR MEETING STUDENTHOUSING NEEDS
The State Building Program
The Leroy Greene Lease Purchase Law of 1976 has provided $5 billion to school districts
throughout the State of California since 1982. This program is substantially under funded
relative to the needs of school districts throughout the State but has been the most stable
and reliable source of income to rapidly growing districts and those districts needing
modernization funding for schools that are 30 years or older. The competition for these
State dollars has brought about changes in law and regulations which make it very difficult
to access unless a district can provide 50%; of the cost for a project and /or provides year
round education (YRE) or reduces its eligibility, voluntarily, in order to receive State
funding.
*This figure includes the use of the relocatable buildings at Flory and Chaparral.
Once the modernization of Flory and Chaparral is complete the relocatable buildings
will be returned to the State of California.
Mr. Jaime Aguilera
May 4, 1994
Page 3
Developer Fee Income
Developer fees which maybe assessed by the action of a board of education is limited by
statute to a per square foot amount which was based on the 1986 standard of $1.50 per
square foot for residential construction and 25 cents per square foot for
commercial/ industrial development. These amounts have been increased according to
statute through the action of the State Allocation Board and the districts may now assess
a maximum amount of $1.71 per square foot for residential housing and 29 cents per square
foot for commercial /industrial development upon following the notice procedures outlined
in the Government Code.
MIRA /Hart/Mutrieta Development Mitigation
Through case law, specifically the MIRA /Bart /Murrieta cases, school districts have sought
and achieved additional mitigation or total mitigation of development beyond the statutory
fee allowed by the Government Code to boards of education with the cooperation of cities
or counties using their police power to condition development to provide for capital outlay
funds to school districts beyond the statutory limit. Case law has provided that the statutory
fee is limited but that there is no limit, other than demonstrated need of the district, to the
school impact mitigation which may be required through the development approval and
zoning entity.
Financing of Capital Outlay Projects
School districts may utilize certificates of participation (COPS), equipment leases and other
non -voter approved borrowings to meet capital outlay needs. These mechanisms are limited,
however, to the ability of districts to pay back the borrowed funds with interest over short
term or long term periods. Developer fee income has been used by many districts to repay
such debts, however, the general fund of the school district is the measure utilized in
securing such loans.
General Obligation Bonds /Parcel Tax Measures
School districts may place before the electorate general obligation bonds for school
construction or a parcel tax proposal for school construction and other non capital needs.
The level of voter support to secure such mechanisms is 66 21301c, of those voting. Many
districts have attempted to secure such mechanism; for capital outlay purposes, fewer than
50% of the districts that attempt such res have had them approved by the local
electorate.
Mr. Jaime Aguilera
May 4, 1994
Page 4
Sale, Lease or Rental of Surplus Property
School districts in California have an opportunity to secure income from surplus properties
by outright sale of such properties to public and private entities. Many districts have
embarked upon an asset management strategy in order to lease and /or rent properties for
short term or long term periods to fund borrowing such as COPS or equipment leases with
the payments on the debts incurred by the district being met by the income of the
management of the school district property asset. Many districts have entered into unique
relationships with residential and /or commercial /industrial developers in joint ventures to
secure such income.
Redevelopment Income
Many districts in California have agreements with redevelopment agencies to provide
income which may be used for the construction of new facilities, the renovation or
modernization of existing facilities, or the purchasing of furniture and equipment for new
or modernized facilities.
FINANCIAL ABILITY OF THE MOORPARK UNIFIED SCHOOL DISTRICT TO
PROVIDE ADEQUATE SCHOOL HOUSING
The Leroy Greene Lease Purchase law of 1970 has been the foundation for the District in
meeting the needs of a rapidly increasing school age population. The District has obtained
an excess of $55 million for the acquisition of school sites, the building of classroom
buildings and other facilities including playgrounds and athletic fields. This State program
is extremely competitive and annually becomes a less viable option for school districts
because of the demand and the limited resource; that are provided through Statewide bond
funds.
Moorpark Unified School District has, under the fees permitted through SB 201 through
1986 and AB 2926 from 1987 through the current period of time, sought and received a
maximum allowable developer fee income permitted under State law. The District has also
negotiated with various developers to provide additional support in infrastructure or through
funds donated by the developer above the maximuin statutory fee. The District developer
fee income has annually paid for the retirement of the ('OPs debt assumed in 1985 -86 for
the construction of the Mountain Meadows School. The District has also used developer
fee income to pay leases on relocatable buildings provided through the State of California.
Mr. Jaime Aguilera
May 4, 1994
Page 5
In November of 1990, the Board of Education asked the electorate to support a $25.5
million bond measure to assure the construction of needed facilities at Moorpark High
School, the new middle school and other facilities around the District. Although 56% of the
electorate approved of the measure it fell short of the 66 2/3% requirement. The District
was able to receive State funding in excess of the $25.5 million which provided phases 3 and
4 of Moorpark High School, the Mesa Verde Middle School, including site acquisitions and
off site developments, and 50% of the cost of the construction of the new science wing at
Chaparral Middle School.
The District has attempted for a number of years to find interested parties who are willing
purchase, lease or joint venture with the District on portions of the Moorpark Memorial
High School property. As of this date no substantive sale, lease or joint venture proposal
has been secured by the District.
The District has entered into an agreement with the local redevelopment agency and
anticipates the receipt of limited redevelopment dollars beginning at the latter part of this
decade. Redevelopment dollars cannot be relied upon to finance outright a capital outlay
project or to provide an adequate debt repayment income stream at the present time.
An important option to Moorpark Unified School District, which has been communicated
to the City of Moorpark in past years, is the utilization of the City's police power to secure
full mitigation of future development to make up the difference between the income
provided by the statutory fee levied by the Board of Education and the actual cost of new
facilities. The expectation of the District is that all of the measures that have been
employed to date by the District to meet the adequate housing needs of students will not
be available to the District and, therefore, the assistance of the City Council in conditioning
development to include the projected needs of the District to house students is imperative.
The District is ready and willing to provide ;idecluate documentation to demonstrate its
need.
COMMENTS ON THE PROPOSED ORDINANCI:
Two areas must be noted by the District those being Section 1 Findings, Subsections D &
G and Sections 3, and 7.
Section 1, Subsection D states that "current State law restrictions on the maximum amount
of money that projects can be conditioned to pay does not insure that adequate school
facilities and services will he available when needed." 'rhis is not entirely accurate, State
statutes provides a limit on the fee that imiy he as,,essed by action of the Board of
Education. This, as noted ahove, is a s(luare -,)ot calculation for
Mr. Jaime Aguilera
May 4, 1994
Page 6
residential /commercial /industrial development. Case law emanating from the courts in
California provide that the statutory fee assessed by a board of education is limited but that
the police power of a development approval and zoning entities such as the City may
provide, through the conditioning of development, up to full mitigation of school impacts
beyond the board of education levied statutory tee.
Section 1, Subsection G indicates that the current property tax funding is inadequate to meet
the needs of the City's existing residents regarding library services. I concur with the finding
and suggest that this be addressed in some manner as future development occurs and it be
noted that library services are an important resource utilized by students within the District
particularly those in grades 6 -12.
Sections 3 and 7 relating to the yearly allotments of 250 residential units with the maximum
carryover allotment not to exceed a total of 500 units at any given time require a comment
and a proposed suggestion regarding impacts upon the District. It will be more difficult to
secure adequate funding through the SB 2926 statutory fee levied by the Board of Education
with such a limitation of 250 or 500 units at any given time. This could be addressed
through two concepts, the first being the application of MIRA /Hart /Murrieta conditions
being applied for full mitigation of school impacts and /or a recognition that a project that
would exceed the 500 unit allocation may, due to the provision for school and library needs,
receive bonus points or some other positive motivation to provide infrastructure funds to the
District in advance of completion of a substantial portion of the project. It is important to
note that a small development or several small developments totalling 250 or 500 units will
not generate sufficient revenues on their own under the fee levied by the Board of
Education to offset impacts that will he felt it each and every grade level. With the
implementation of the provisions of Sections 3 and 7 careful negotiation must occur between
the City, the District and the developer(s) to ,�-cure adequate housing of students.
Thank you again for requesting my participation in the review process for this proposed
ordinance and for taking the time to meet with me in your office to discuss this important
matter as it relates to the needs of the School l-)i,�trict.
Si
-rnomas u. uutry, r-a.t_
District Superintendent
cc: City Council
Mr. Steve Kueny
MUSD Board of Education
Roseann Mikos, Ph.D.
14371 E. Cambridge Street • Moorpark, CA 93021 •805- 529 -4828 • FAX 805 - 529 -3216
May 3, 1994
Mayor Lawrason and Honorable City Councilmen
City of Moorpark
799 Moorpark Ave.
Moorpark, CA 93021
Dear Mr. Mayor and Messrs. Councilmen:
I heartily support the proposed ordinance drafted by the Measure F /Comprehensive Planning Ordinance Ad
Hoc Committee to extend growth control protection to our city from 1996 -2005.
As a supporter of the original Measure F who worked hard to help get it passed, I remain convinced that it is up
to us (and you, as our representatives) to protect our current quality of community life against the damages of
too rapid development.
Development will (and should) occur in our city. However, it should not occur at anywhere near the rapid pace
that Moorparkers saw in 1986 when developers rushed to begin building huge numbers of homes before
Measure F made it to the ballot, passed, and was enacted. I believe that Moorpark has not et recovered from
the excesses of that "too rapid" development which did occur. Furthermore, I do not want to take a chance that
it could happen again if we let Measure F expire without a new ordinance to replace it.
I would also like to congratulate the members of the Ad Hoc Committee who worked on the draft ordinance for
taking their job so seriously as they deliberated the pros and cons of all sides of the growth control issue. I
attended one of their meetings as an interested citizen some time during the middle of their tenure on the
committee. From that meeting, I could see that the points of view of the committee members were still
evolving. At that time, they did not agree on exactly what to recommend for the ordinance. They were
seriously and thoughtfully grappling with the issues in a careful way.
Later, when the media reported their final recommendation, I was pleased and impressed that they were able to
come to mutual agreement about what to recommend; and, that it was to control growth similarly to the
original Measure F. I admit that when I was at the meeting with them, I did not think they would be able to
reach a consensus. The fact that they did reach consensus on this ordinance is very si ing ficant. Why? Because
the members of the committee represented all sides of the issue: those who were more "pro - growth," those who
were more for "slower growth," and those who fell somewhere between those extremes.
It shows that people who really study the issues involved and focus on the facts, instead of on one or another
persons' opinions, can set aside personal feelings and arrive at a consensus on an issue that has historically (in
Moorpark) evoked very different opinions from different council members and from the general public over the
years.
The members of the Ad Hoc Committee should be proud of themselves for a job well done. The City Council
and the general public should be proud of them too. They took the time to examine all the issues for us and
they made their best recommendation. We owe it to them to respect their good judgment and to NOT water
down their proposal. I urge you to accept the proposed ordinance "as is" and to enact it.
Sincerely,
Roseann Mikos, Ph.D.
km: DX
Independent consulting services
Training and Education • Proposal Development • Organization Development • Systems
Freelance photography and writing
April 29, 1994
The Honorable City Council
City of Moorpark
799 Moorpark Avenue
Moorpark, CA 93021
To the City Council:
I support the proposed ordinance for managed growth -
Measure F. My husband and I supported Measure F in 1986
and still feel that managed or controlled growth is in the
best interests of the citizens of Moorpark. With too rapid
development, streets, schools, services are overwhelmed and
cannot adequately keep up with the population surge - we also
lose air quality, open space and ag land - things that make
Moorpark such a unique and desirable place to live.
I will be attending the city council meeting of May 4 when
the council will be discussing this ordinance. I'm sure that
there will be several people speaking in favor of Measure F
during the public comments period. They will no doubt be
expressing thoughts similar to those expressed in my letter -
so I don't want to take up time reiterating what they have
to say, but please, take this letter into consideration when
voting on the proposed ordinance Measure 1'.
Thank you.
Sincerely,
Dawn Mortara
13631 Bear Valley Road
Moorpark, CA 93021
— RECEIVED
MAY - 2 1994
City of Moorpark
Date:
The Honorable City Council, City of Moorpark,
799 Moorpark Avenue
Moorpark, CA 93021
Dear Honorable City Council:
i support the proposed ordinance drafted by the Measure F/
Comprehensive Planning Ordinance Ad Hoc Committee. I think it is
very important to protect our current quality of community life against
the damages of too rapid development. I want the City to carefully
manage its growth.
Respectfully
Name and Address
LJy
C14- cl3o al
— RECEIVEJ)
APR 2 9 1994
City of Moorpark
Date:y
The Honorable City Council, City of Moorpark,
799 Moorpark Avenue
Moorpark, CA 93021
Dear Honorable City Council:
I support the proposed ordinance drafted by the Measure F/
Comprehensive Planning Ordinance Ad Hoc Committee. I think it is
very important to protect our current quality of community life against
the damages of too rapid development. I want the City to carefully
manage its growth.
Respectfully Yours,
4,,, Cti ,(-- CA
Name and Address
— RECEIVED
APR 2 9 1994
City of Moorpark
A
Date:
The Honorable City Council, City of Moorpark,
799 Moorpark Avenue
Moorpark, CA 93021
Dear Honorable City Council:
I support the proposed ordinance drafted by the Measure F/
Comprehensive Planning Ordinance Ad Hoc Committee. I think it is
very important to protect our current quality of community life against
the damages of too rapid development. I want the City to carefully
manage its'growth.
Respectfully Yours, � RECEIVED
APR 2 11994
City of Moorpark
Name and Address
1 Z l u 6 !�',v rr`�rovi r
A/7
Date: � / S /�`'
The Honorable City Council, City of Moorpark,
799 Moorpark Avenue
Moorpark, CA 93021
Dear Honorable City Council:
support the proposed ordinance drafted by the Measure FI
Comprehensive Planning Ordinance Ad Hoc Committee. I think it is
very important to protect our current quality of community life against
the damages of too rapid development. I want the City to carefully
manage its growth.
Yours,
Name and Address
RECEIVED w -
APR 18 1994
City of Moorpark
Date: Y// Lf Iq V
The Honorable City Council, City of Moorpark,
799 Moorpark Avenue
Moorpark, CA 93021
Dear Honorable City Council:
I support the proposed ordinance drafted by the Measure F/
Comprehensive Planning Ordinance Ad Hoc Committee. I think it is
very important to protect our current quality of community life against
the damages of too rapid development. I want the City to carefully
manage its growth.
Respectfully Yours,
"0
Name and Address
q fiEz- 6� 4 11) 1'4'
—RECEIVED
APR 18 M4
�;ty of Moorpark
Date:
The Honorable City Council, City of Moorpark,
799 Moorpark Avenue
Moorpark, CA 93021
Dear Honorable City Council:
I support the proposed ordinance drafted by the Measure F/
Comprehensive Planning Ordinance Ad Hoc Committee. I think it is
very important to protect our current quality of community life against
the damages of too rapid development. I want the City to carefully
manage its growth.
Respectfully Yours,
Name and Address E _� L
STS e'r\j ,
RECEIVED
APR 15 1994
Y City of Moorpark
M E M O R A N D U M
TO: The Honorable City Council
FROM: Jaime Aguilera, Director of Community Developmeniov-1"
Deborah S. Traffenstedt, Senior Planner SST"
DATE: September 1, 1994
SUBJECT: CITY ATTORNEY CORRESPONDENCE PERTAINING TO CONSIDERATION
OF NEW GROW'T'H MANAGEMENT ORDINANCE
Attached is a copy of all City Attorney related correspondence that
pertains to a new growth management ordinance (includes City
Attorney letters and staff memorandums). Copies of staff reports
and memorandums to the City Council, and correspondence from the
public, are being provided to the Council under separate cover.
Staff has scheduled continued discussion of the new Growth
Management Ordinance for the Council's September 21, 1994, meeting.
Attachments:
City Attorney Letters and Staff Memorandums
cc: Steven Kueny, City Manager
Cheryl Kane, City Attorney
Lillian Hare, City Clerk
CITY OF MOORPARK
COMMUNITY DEVELOPMENT DEPARTMENT
MEMORANDUM
TO: Cheryl Kane, City Attorney
FROM: Jaime Aguilera, Director of Community Development
DATE: April 6; 1994
SUBJECT: NEW GROWTH MANAGEMENT ORDINANCE
We received comments from you on the most recent draft growth
management ordinance in a letter dated March 10, 1994, and we
forwarded a copy of your comments to the City Council. On March
23, 1994, the City Council discussed the draft growth management
ordinance at a special meeting, and requested that your opinion be
obtained regarding the appropriate environmental clearance document
for a new growth management ordinance, and regarding comments
received from the Building Industry Association (BIA) in a letter
dated March 23, 1994 (copy attached). The City Council wants to
know whether the legal concerns expressed by the BIA in their
letter are valid, and wants your opinion regarding the relationship
between the new ordinance and the prior settlement agreement with
the BIA.
The City Council's basic concern is whether the new draft ordinance
is legally defensible, and, if not, what should be done to make it
legally defensible. In your letter dated March 10, you suggest
that we give serious consideration to developing an alternative
theory for rebutting the presumption that a numerical growth
control ordinance impacts the regional supply of housing. I would
like to discuss this issue with you further. At this time, there
appears to be no consensus on a state or regional level regarding
how to calculate a local jurisdiction's fair share of regional
housing needs. SCAG is not proceeding with a Regional Housing
Needs Assessment due to lack of State funding, and recent
legislation has extended the time period for the next Housing
Element update until June 1996.
The City Council has scheduled the next public hearing on the draft
growth management ordinance for May 4, 1994. I am, therefore,
requesting your response by April 22, 1994.
Attachment: Letter from BIA dated 3 -23 -94
JRA /DST
dlLJ
BIA
GREATER LOS ANGELES / VENTURA CHAPTER
Building Industry Association of Southern California, Inc
24005 Ventura Blvd., Suite 102 • Calabasas, CA 91302
(818) 591 -2001 • (805) 659 -4745 • FAX (818) 591 -0072
March 23, 1994
Paul Lawrason
City of Moorpark
799 Moorpark Avenue
Moorpark, CA 93021
RE: Proposed Ordinance Establishing a Growth Management System
Dear Mayor and Councilmembers:
Thank you for the opportunity to comment on the proposed Ordinance Establishing a
Growth Management System. As you may well expect, the Building Industry Association
(BIA) has a number of concerns with the ordinance as currently proposed.
At the outset, it appears that this. ordinance is intended to overlap with Measure F. As you
know, Measure F, which actually established the current growth management system in the
City, was adopted by the voters of the City and was modified by a settlement agreement
after a legal challenge by BIA. The proposed ordinance would ostensibly become effective
upon its adoption, whereas Measure F does not expire until December 31, 1995. During
that approximately 1 1/2 year period, Measure F (as revised by the Settlement Agreement)
would control in the event of the numerous inconsistencies in the proposed ordinance.
Consequently, we fail to see the purpose of the proposed ordinance prior to December 31,
1995.
The proposed ordinance conflicts with a number of critical components of the Settlement
Agreement that the City and BIA entered into as a result of Measure F. For instance, the
Settlement Agreement requires a minimum of 250 building allocations per year, plums the
settlement agreement with the Urban West exempting its project; the 250 annual building
allocation under the proposed ordinance falls far short of that commitment.
State law (Govt. Code Section 65863.6) requires that an ordinance limiting residential
construction can only be adopted if the City can adopt certain findings of necessity, which
must be supported by substantial evidence. In light of current realities, we doubt seriously
that the City could factually support the findings recited in the proposed ordinance.
An AthbotP ;t trno NAME and tt'.Q ::F.'A
Mayor Lawrason
3/23/94
page 2
We feel that the proposed ordinance is not consistent with the General Plan Update
recently adopted by the City. Although the number of annual building allocations under the
proposed ordinance was arithmetically derived by dividing the buildout in 2010 by the
number of years, development simply does not occur that way. For instance, limiting a
project to a maximum of 125 building allocation. a year may make many projects
economically infeasible_ In addition, by limiting the accumulation of unused allotments to
500 -- as opposed to limiting the annual building permits to 500 with any remaining unused
allotments being carried into future years, which probably could be justified -- the proposed
ordinance will likely prevent residential buildout of the City in accordance with the General
Plan Update.
As a result, the City will not provide its fair share of housing required by State law and will
not be able to provide the infrastructure within the time frames of the General Plan Update.
Consequently, we suspect that the proposed ordinance will probably cause significant
adverse environmental impacts, so an environmental impact report must be prepared prior
to adoption of the proposed ordinance.
The system set forth in the proposed ordinance for awarding bonus points has the
appearance that the City sells building allocations. Furthermore, we note the irony in
awarding bonus points for projects that include affordable housing and, on the other hand,
awarding bonus points for projects with large lots or reduced density -- criteria that are
distinctly.pnaffordable. Awarding bonus points for large -lot and reduced - density projects
also appears to be an attempt to do indirectly what state law prohibits doing directly.
In addition to our general comments regarding the concept of the proposed ordinance, we
believe it suffers from a number of specific flaws. For instance, Section 3 of the proposed
ordinance states that the 250 annual building allocations would not be affected regardless
of annexations of land; that may be inconsistent with using the buildout within the current
City boundary (and possibly the existing area of interest) under general plan as the source
of the number of building allocations and would discourage annexations to the City.
A residential planned development (RPD) permit is a prerequisite for being placed on the
waiting list for building allocations. However, an R13D is valid for only two years, which will
almost certainly expire before building allocations can be obtained, given the probable
waiting period and the fact that a project can receive only one -half of the available
allotments in any year. Therefore, we recommend that the proposed ordinance
automatically extend the life of all RPDs to two years following award of all of the building
allocations necessary for a project.
Mayor Lawrason
3/23/94
page 3
Section S.I. limits a project to 50110 of available building allocation. The proposed
ordinance should guarantee that once a project has been awarded building allotments, that
project will continue to receive the maximum allotments and no other project can be placed
ahead of it. For instance, as the proposed ordinance is currently written, it appears that a
chronologically older RPD that did not apply for building allocations in one year would
supersede a project that had been awarded only a portion of its necessary building
allotments the previous year.
The proposed ordinance would permit the City to terminate any allotments granted to a
project if unused within two years. Given today's economic realities (e.g., that most Ienders
are willing to finance the construction of only about 15 units at a time), the two year
expiration could result in partially- complete projects.
We encourage you to not adopt the proposed ordinance in its current form, but rather to
carefully weigh its impact on the community and the building industry before moving
forward. We look forward to the opportunity to provide further input on this issue.
Sinc I ,
Dee Zinke
Executi Of cer
cc: Councilmembers
City Manger Steve Kueny
City Attorney Cheryl Kane
Director of Planning Jaime Aguilera
CITY OF MOORPARK
COMMUNITY DEVELOPMENT DEPARTMENT
MEMORANDUM
TO: Cheryl Kane, City Attorney
FROM: Jaime Aguilera, Director of Community Development%'/
DATE: February 11, 1994
SUBJECT: NEW GROWTH MANAGEMENT ORDINANCE
Thank you for your quick response to our questions regarding the
staff report for the City Council's February 16, 1994 meeting. We
have revised that report in accordance with your comments.
I am now requesting your review of the attached revised draft
growth management ordinance that was prepared by the Ad Hoc Measure
F /CPO Committee. Your comments are requested by March 14, 1994.
If you have any questions, please contact either myself or Debbie
Traffenstedt.
Attachment: Revised Draft Growth Management Ordinance
cc: Steve Kueny, City Manager
JRA /DST
DRAFT
ORDINANCE NO.
AN ORDINANCE OF THE CITY OF
MOORPARK, CALIFORNIA, ESTABLISHING
A GROWTH MANAGEMENT SYSTEM
WHEREAS, Initiative Ordinance Measure F was adopted by the
voters of the City of Moorpark in November 1986, and established a
Residential Development Management System; and
WHEREAS, Initiative Ordinance Measure F includes a provision
for termination as of December 31, 1995; and
WHEREAS, Initiative Ordinance Measure F was adopted in
response to a period of intense residential development in the City
of Moorpark which adversely affected the capacity of the streets
and local freeway system to meet traffic demands, the capacity of
appropriate schools to absorb children, the suburban -rural
character of the community, the quality of life prevalent in the
City and its sphere of influence, and the cost to households of
some utilities and municipal services; and
WHEREAS, it is the intent of the City Council to achieve a
steady, rather than a fluctuating, overly rapid, rate of
residential growth each year, thereby minimizing the avoidable
costs of short - sighted facility expansion; and
WHEREAS, managed residential growth will ensure that the
services provided by City, School, Utility and /or service agencies
operating in the city can be properly and effectively staged in a
manner which will not overextend existing facilities, as well as
ensure that deficient services can be brought up to required and
necessary standards; and
i r
WHEREAS, it is the intent of the City of Moorpark to establish
control over the quality, distribution, rate, and economic level of
residential growth in the city on a year -to -year basis in order to:
• Preserve the suburban -rural character of the
community;
• Protect the agricultural land and open space of the
City;
• Provide a suitable living environment for all
citizens of the City;
• Ensure the adequacy of municipal, school, utility,
recreation and park facilities and services;
• Attain a balanced City growth pattern which
includes a full mix of land uses;
Ordinance No.
Page 2
• Provide a variety of housing types and
opportunities for all economic segments of the
community;
• Prevent further significant deterioration in the
local air quality;
• Ensure that the traffic demands do not exceed the
capacity of streets, highways, and freeways;
• Maintain consistency with adopted Ventura County
population forecasts for the Moorpark growth and
non - growth areas; and
WHEREAS, the City of Moorpark has considered the effect of
this ordinance on the housing needs of the region in which it is
situated and has balanced those needs against the public service
needs of its residents and available fiscal and environmental
resources. It is hereby found and determined that this ordinance
will not reduce the housing opportunities of the region and this
ordinance is compatible with the state housing goal and regional
housing needs. It is further found and determined that, to the
extent this ordinance may be determined to reduce the housing
opportunities of the region, the findings contained herein as to
the public health, safety and welfare of the city to be promoted by
the adoption of this ordinance, justify any such reduction in the
housing opportunities of the region; and
WHEREAS, this ordinance is consistent with the goals and
policies of the City of Moorpark General Plan and City Ordinances
relating to the regulation of residential development;
NOW, THEREFORE, THE -CITY COUNCIL OF THE CITY OF MOORPARK,
CALIFORNIA, DOES ORDAIN AS FOLLOWS:
SECTION 1. FINDINGS
The following findings justify the adoption of this ordinance
by the City of Moorpark in order to protect the public health,
safety and welfare:
A. Growth management is consistent with goal, policy and
implementation language in the City's General Plan, which
address the need for balanced community growth patterns;
maintaining suburban rural community character; and
preservation of important, natural features, agricultural
areas, and visually prominent hillside areas.
Ordinance No.
Page 3
B. Growth management is consistent with the Ventura County
Air Quality Management Plan. The rate of population
growth is an integral assumption in the forecast of
future air pollutant emissions in the County. The County
of Ventura is currently a "non- attainment area" for ozone
based on the state and federal ozone standards.
C. Growth management is consistent with the 1978 Ventura
County 208 Water Quality Management Plan and the July
1993 Draft Ventura County Water Management Plan. Long-
term water availability is of concern for Ventura County.
The proper management of water as a limited resource is
vital to meet the current and future demands of urban,
industrial, agricultural, and other water uses.
Currently countywide water demand is greater than locally
available water. This condition has resulted in the
overdraft of groundwater resources and increasing
dependence on imported water supplies. State imported
supplies depend on snowpack and rainfall. During the
recent drought, state water purveyors mandated use
cutbacks, making state water a somewhat unreliable
source. Local surface water supplies also suffer during
a drought and cannot supply water at volumes previously
supplied. These conditions point to the fact that even
several water sources cannot be relied upon to meet
countywide water demands during a drought. Current
conditions illustrate the need for growth management to
continue planning efforts to ensure an adequate and
reliable water supply in the short term, long term, and
during drought conditions.
D. Growth management is necessary to ensure the adequacy of
school facilities and services. Current state law
restrictions on the maximum amount of money that projects
can be conditioned to pay for schools does not ensure
that adequate school facilities and services will be
available when needed. Growth management allows a school
district to more accurately plan facilities and services
to meet projected needs.
E. Growth management is necessary to ensure that roadway and
transit facilities in the City and region are adequate to
accommodate demand without significant impacts to levels
of service. Currently several intersections in the City
are operating at inadequate levels of service based on
the City General Plan and Ventura County Congestion
Management Plan standards. Growth management will allow
the City and the region to more accurately plan
transportation facility improvements to meet the demand
without significant impacts based on adopted standards.
Ordinance No.
Page 4
F. Growth management is necessary to ensure that adequate
landfill capacity is available for the region.
Inadequate landfill capacity is available in Ventura
County to meet the projected solid waste disposal needs
of County residents and businesses.
G. Growth management is necessary to ensure that adequate
library services are available. Library services in the
City are currently provided by Ventura County, and the
current property tax funding is inadequate to meet the
needs of the City's existing residents.
H. Growth management will not impact the City's ability to
provide its fair share of regional housing based on the
exemptions as described in Section 2 of this ordinance,
and the number of development allotments available yearly
as described in Section 3 of this ordinance.
I. The City's projected population for General Plan buildout
(40,856) and an estimate of 3.39 persons's per household
through the year 2010 have been used as the determining
factors in this growth management ordinance as documented
in Exhibit A.
SECTION 2. APPLICABILITY
The provisions of the Growth Management System shall apply
from the effective date to all residential development including
mobilehomes in the City of Moorpark with the exception of the
following exempt residential development:
A. Projects of not more than four residential dwellings,
limited to only one such project per developer per
calendar year.
B. Fourplexes or lesser numbered multiple dwellings on a
single existing lot.
C. Single family residential units on a single existing lot.
D. Rehabilitation or remodeling of an existing dwelling,
conversion of apartments to condominiums, or conversion
of mobilehome parks to condominiums, so long as no
additional dwelling units are created.
E. Dwelling units reserved for very low income, lower
income, or senior citizen households pursuant to an
affordable housing or development agreement.
F. Projects of residential dwellings with a minimum lot size
of five acres per dwelling.
G. Second dwellings as defined in the City of Moorpark
Zoning Ordinance.
Ordinance No.
Page 5
SECTION 3. YEARLY ALLOTMENTS
The number of new residential development allotments available
for award each year in the City of Moorpark, except for dwelling
units exempted pursuant to the provisions of Section 2, shall be
two hundred and fifty (250).
If all or a portion of the two hundred and fifty (250)
allotments that are available for award in any calendar year, are
not awarded in that year, those non - allocated allotments shall be
carried over to each ensuing calendar year, subject to a limitation
that the maximum number of carryover allotments shall not exceed a
total of five hundred (500) at any time. Such carryover allotments
shall be in addition to the allotments that are otherwise available
per calendar.year pursuant to the preceding paragraph.
If any allotments previously awarded to a project are
rescinded by the City Council, pursuant to Section 9, those unused
allotments shall be added to the pool of non - allocated development
allotments available for award during any calendar year, subject to
a limitation that the maximum number of rescinded allotments plus
non - allocated carryover allotments, described in the preceding
paragraph, shall not exceed a total of five hundred (500) at any
time.
The number of annual development allotments shall be
continuously applicable to the city's jurisdictional boundaries and
shall not be modified by reason of annexation or additional
territory.
SECTION 4. DEVELOPMENT ALLOTMENT LIST
The Department shall, keep a list of approved residential
planned development (RPD) permit numbers in chronological order
based on date of permit approval. This list shall be known as the
Development Allotment List, and shall begin with the RPD Permit
that has the oldest approval date and end with the most recently
approved RPD Permit, unless otherwise positioned due to the use of
bonus points as provided for in Section 6.
A. The Development Allotment List shall contain the following
information:
1.
The
project
RPD permit number.
2.
The
total
number of project dwelling units requiring
development
allotments.
3.
The
number
of allotments awarded for each RPD project.
4.
The
date of
RPD Permit approval.
Ordinance No.
Page 6
B. The ranking of a project on the Development Allotment List
shall not be changed after passage of the base year in which
the RPD Permit had been approved.
C. If a residential project is awarded bonus points during the
base year of RPD Permit approval, pursuant to the process
described in Section 6, the List shall be updated within two
working days of the decision to award the bonus points, and
the updated list shall be published in a weekly newspaper of
general circulation, as defined in Section 6008 of the
Government Code, for the City of Moorpark.
SECTION 5. DEVELOPMENT ALLOTMENT AWARD PROCESS
The owner or project developer (hereafter called applicant) of
a property, for which a RPD Permit has been approved and included
on the Development Allotment List, shall be eligible to apply to
the Department for one development allotment for each non - exempt
dwelling unit in the approved RPD project.
A. Each applicant for development allotment(s) shall apply on a
form provided by the Department.
B. A completed application for development allotment(s) must be
filed with the Department no later than the last working day
of each calendar year. Any application deemed incomplete by
the Department will not be considered as accepted for filing.
C. Allotments for the previous year, pursuant to Section 3, shall
be awarded each calendar year no later than the last working
day of March.
D. Allotments shall be awarded for a RPD project based on its
position on the Development Allotment List.
E. The City Council shall consider at a noticed public hearing
the rankings of the proposed developments on the Development
Allotment List, along with any action taken by the Planning
Commission concerning the award of bonus points pursuant to
Section 6, and shall award development allotments from that
List. Notice of the hearing shall be provided consistent with
Section 6008 of the Government Code. After closing the public
hearing, the City Council shall award all allotments for which
it has received application, not to exceed the maximum number
of allotments available as established in Section 3 herein.
F. If the first RPD project on the Development Allotment List
does not utilize all of the allotments available, then the
next project on the List will be eligible for award of
allotments. This process shall continue until there are no
allotments available or until there are no more RPD projects
on the List, whichever comes first.
Ordinance No.
Page 7
G. If the property owner or developer of a RPD project fails to
submit an application for development allotments, no
allotments shall be awarded that project.
H. If a RPD project, for whatever reason, is not awarded
development allotments, or is awarded only a portion of the
allotments required to develop the project, that project shall
maintain its position on the Development Allotment List until
all required allotments have been received.
I. No single applicant may be awarded more than 50 percent (50 %)
of all allotments available during a single allotment year.
SECTION 6. BONUS POINTS
Any RPD project which is on the Development Allotment List may
have its position on the List improved if bonus points are
obtained. Bonus points will be awarded in recognition of a
project's contribution to the achievement of the goals of the
Growth Management Ordinance.
As provided for below, the owner or developer of a property
for which a RPD Permit has been approved may submit an application
to the Department for bonus points at any time prior to the last
working day of December of the calendar (base) year that RPD Permit
approval is received. As identified in Section 5, RPD projects
approved during the same calendar year will initially be ranked on
the Development Allotment List, in chronological order, based on
the date of approval of the RPD Permit. If a RPD project receives
a bonus point, it will increase its ranking on the Development
Allotment List for the base year of RPD Permit approval. The RPD
project with the most bonus points will be placed at the beginning
of the List; other RPD projects with lesser points sfhall follow in
descending order of points. If one or more projects receive equal
bonus points, those projects would be ranked in chronological
order, based on the date of RPD Permit approval.
The application and evaluation process for bonus points shall
be as follows:
A. Applicants for bonus points shall apply on a form provided by
the Department. A complete application and a processing fee
must be submitted to the Department no later than the last
working day of December of the base year that the RPD Permit
was approved by the city. In order for an application to be
deemed complete by the Department, it must include all
components required to allow a determination of eligibility
for bonus points as described in subsection C of this Section.
The processing fee to be submitted with the application shall
be established by resolution of the City Council.
Ordinance No.
Page 8
B. A noticed public hearing, shall be held by the Planning
Commission on the second Monday of January for the purpose of
evaluating applications for bonus points and finalizing a
recommendation to the City Council. Notice of the hearing
shall be provided consistent with Section 6008 of the
Government Code. The Planning Commission shall make its
recommendation decision no later than 15 days from the date of
the public hearing.
C. The following criteria shall be used by the Planning
Commission to evaluate applications for bonus points and
develop a recommendation to the City Council for bonus point
award.
1. One (1) point shall be awarded for every one percent (1%)
of value of the infrastructure /amenity to be provided,
which was not required as a condition of the RPD Permit
approval. Said percent shall be calculated as a percent
of the appraised value of the project (at the time of RPD
Permit approval), and the appraised value of the
contribution.
a. The "infrastructure /amenity" shall be defined as a
list of projects which is compiled by the City
Council on a yearly basis and which is considered
to be important to the attainment of the goals of
the Growth Management Ordinance. This list is to
be known as the Growth Management Goal Attainment
(GMGA) list, and shall be established by resolution
of the City Council. The GMGA list shall be in
order of priority.
b. The applicant may either build the infrastructure/
amenity or may contribute monetarily to the GMGA
fund. All contributions made to the GMGA fund may
only be used to capitalize projects on the GMGA
list.
C. The appraised value of the project and any
"infrastructure /amenity" shall be based on an
appraisal report. The appraisal report must be
completed by the deadline for application submittal
pursuant to subsection A, above. The applicant
shall bear the cost of preparation of said
appraisal report. Appraisals shall be conducted by
a qualified appraiser, selected by the city,
pursuant to the following process:
d. The City shall maintain a list of qualified
appraisers, and shall make said list available to
applicants.
Ordinance No.
Page 9
e. The applicant shall request in writing that tiIL�
Department obtain informal bids from three
appraisers, selected by the applicant, from the
City's list of qualified appraisers.
f. The City shall then request informal bids from the
three appraisers relative to the value of the
applicant's project and any "infrastructure /
amenity" to be provided.
g. The lowest bidder shall be awarded the task of
preparing the required appraisals of the project
and the proposed improvement as listed on the GMGA
list. One of the other bidders may be awarded the
appraisal contract if the City and the applicant
mutually consent to do so.
h. The applicant shall deposit with the City, an
amount equal to the appraisal.bid plus the City's
contract administration charge, as established by
City Council resolution.
i. The product of the appraiser's work shall be given
to the applicant for his inclusion with the
application for bonus point(s).
2. One (1) point shall be awarded if the project is
considered to be an "in- fill" development. An in -fill
development is defined as a RPD project which is
surrounded on three sides by existing development and
does not require the extension of water, sewer, electric,
utilities or street infrastructure to the site.
3. One or more points shall be awarded if affordable rental
or for - purchase dwelling units are provided within a RPD
project consistent with the following criteria:
a. One (1) point shall be awarded if a minimum of 5
percent (5 %) of the total RPD project dwelling
units, in excess of any inclusionary zoning
requirement, is made affordable to either very low
or lower income households pursuant to an
affordable housing agreement.
b. Two (2) points shall be awarded if a minimum of 10
percent (,10 %) of the total RPD project dwelling
units, in excess of any inclusionary zoning
requirement, are made affordable to either very low
or lower income households pursuant to an
affordable housing agreement.
Ordinance No.
Page 10
C. One (1) point shall be awarded if a minimum of 15
percent (15 %) of the total RPD project dwelling
units, in excess of any inclusionary zoning
requirement, is made affordable to median or
moderate income households pursuant to an
affordable housing agreement.
d. One (1) additional point shall be awarded if a
minimum of 5 percent (5%) of the total RPD project
dwelling units are made affordable to moderate
income households, in addition to the provision of
very low or lower income units pursuant to either
subsection a. or b., above.
5. One or more points shall be awarded if a minimum of 25
percent of the RPD Permit area includes rural
development, with the lot size requirements and point
allocation to be as follows:
a.
1.0
acre minimum lot size
= one (1)
point
b.
2.0
acre minimum lot size
= two (2)
points
C.
3.0
acre minimum lot size
= three (3) points
d.
4.0
acre minimum lot size
= four (4)
points
e. If a minimum of 25 percent of the RPD Permit area
includes mixed rural lot sizes of one to four
acres, the Planning Commission shall make a
recommendation to the City Council for award of
bonus points for the project; however, the total
number of bonus points for a mixed rural lot size
developmentshall not exceed three -(3).
6. One (1) bonus point shall be awarded if the overall
density of the RPD Permit project site is reduced 10
percent below the maximum density allowed by the General
Plan. One (1) additional point may be awarded by the
City Council if the density of the RPD Permit project
site is reduced by more than 10 percent below the maximum
density allowed by the General Plan.
D. Having evaluated each development in accordance with the
foregoing criteria, the Planning Commission shall make a
determination of bonus point assignment and recommended
revisions to the Development Allotment List, and the
Department shall then publish in a newspaper of general
circulation for the City of Moorpark, the Planning
Commission's preliminary bonus point assignment and revised
Development Allotment List based on that assignment.
Ordinance No.
Page 11
E. Any applicant who is dissatisfied with the Planning
Commission's preliminary bonus point assignment may submit
written notification of such dissent within fifteen (15) days
following the publication of the revised Development Allotment
List. Such written appeal notification will be furnished to
the City Council prior to the awarding of bonus points.
F. Following publication of the preliminary bonus point
assignment, the Community Development Department shall
schedule a City Council public hearing for the final award of
bonus points, and shall provide the council with the Planning
Commission's recommendations for preliminary bonus point
assignments and revised Development Allotment List, as well as
any written appeal notification received from applicants.
G. The City Council shall hold a noticed public hearing on the
second Wednesday of February, prior to making a final
determination of the award of bonus points and revision of the
Development Allotment List. Notice of the hearing shall be
provided consistent with Section 6008 of the Government Code.
The City Council shall make a decision as to the final award
of bonus points no later than 15 days from the date of the
public hearing.
SECTION 7. BUILDING PERMITS
No building permit for a non - exempt residential dwelling unit
shall be issued unless a residential development allotment for the
unit has been awarded; provided, however, that such building
permits shall not be issued in excess Of five hundred (500) per
calendar year. If any of the five hundred (500) building permits
which are available for issuance in any calendar year are not
issued in that year, they shall not be carried over to the ensuing
calendar year.
SECTION 8. GRADING PERMITS
No grading permit for a project containing non - exempt
residential dwelling units shall be issued unless there has been an
award of development allotments for the project. When the award is
for less than the entire project, grading beyond the immediate area
of the lots for which the applicant proposes to utilize the
development allotments may be allowed in accordance with the
following:
A. The applicant executes, in a form approved by the City
Attorney, a waiver of any claim of a vested right to be exempt
from the Growth Management System as a result of grading
beyond the area for which the development allotments have been
awarded and an acknowledgment that the applicant assumes any
risks that may result from commencement of grading prior to
the award of allotments for the entire project; and
Ordinance No.
Page 12
The applicant has been awarded development allotments for at
least 15 percent (15 %) of the number of non - exempt residential
dwelling units in a project consisting of not more than one
hundred and seventy -five (175) lots, in which event the
grading may be carried out for the entire project; or
B. The applicant has been awarded development allotments for at
least 15 percent (15 %) of the number of non - exempt residential
units in the first phase of a project consisting of more than
one hundred and seventy -five (175) lots, in which event the
grading shall be carried out in phases. The phases shall be
delineated by the applicant on the tentative tract map. No
phase shall consist of more than one hundred and seventy -five
(175) lots. Grading of the first phase may commence once 15
percent (15 %) of the necessary allotments for that phase have
been awarded. Grading of the second phase and each phase
thereafter may commence once 75 percent (75 %) of the necessary
allotments for the preceding phase have been awarded.
C. The City Council may approve or conditionally approve grading
in a manner not otherwise provided for in this subsection upon
a finding that strict compliance with the provisions of
paragraph A or B would work a substantial economic or
engineering hardship on the project.
D. All graded areas shall be treated with landscaping, as deemed
appropriate by the Director of Community Development, to
prevent erosion and to reduce visual impacts of the grading.
A landscaping plan shall be approved by the Director prior to
issuance of a grading permit.
SECTION 9. FAILURE TO INAUGURATE
Should a developer' fail to initiate construction within
twenty -four months after award of the development allotments, the
City Council after a public hearing may, by majority vote, rescind
all or part of the development allotments originally awarded to the
RPD project in question. Further, for a one -year period following
the decision of the City Council to rescind development allotments,
no application for new development allotments shall be accepted for
the project which had its allotments rescinded.
Any allotments rescinded by the City Council, pursuant to the
preceding paragraph, may be added to the pool of development
allotments available for allocation during any calendar year,
subject to the restrictions specified in Section 3 of this
ordinance.
SECTION 10. TERMINATION OF ORDINANCE
This ordinance shall remain in effect only until December 31,
2005, and as of that date shall expire, unless earlier repealed,
amended, or extended by the City Council.
Ordinance No.
Page 13
SECTION 11. AMENDMENT OF ORDINANCE
Any amendment of this ordinance shall require a public hearing.
SECTION 12. SEVERABILITY
If any section, subsection, sentence, clause, phrase, part or
portion of this Ordinance is for any reason held to be invalid or
unconstitutional by any court of competent jurisdiction, such
decision shall not affect the validity of the remaining portions of
this Ordinance. The City Council declares that it would have
adopted this Ordinance and each section, subsection, sentence,
clause, phrase, part or portion thereof, irrespective of the fact
that any one or more section, subsections, sentences, clauses,
phrases, parts or portions be declared invalid or unconstitutional.
SECTION 13. EFFECTIVE DATE
This Ordinance shall become effective thirty (30) days after
its passage and adoption.
SECTION 14. CERTIFICATION AND PUBLICATION
The City Clerk shall certify to the passage and adoption of
this ordinance; shall enter the same in the book of original
ordinances of said city; shall make a minute of the passage and
adoption thereof in the records of the proceedings of the City
Council at which the same is passed and adopted; and shall, within
fifteen (15) days after the passage and adoption thereof, cause the
same to be published once in the Moorpark News- Mirror, a weekly
newspaper of general circulation, as defined in Section 6008 of the
Government Code, for the City of Moorpark, and which is hereby
designated for that purpose.
1993.
PASSED AND ADOPTED this day of }
ATTEST:
Lillian E. Hare
City Clerk
Mayor of the City of Moorpark, California
Ordinance No.
Page 14
EXHIBIT A
CONTROLLED GROWTH MANAGEMENT PLAN
The maximum density based on City General Plan buildout of 14,911
dwelling units; plus an additional 147 dwelling units as requested
in a currently filed application for an amendment to the Carlsberg
Specific Plan; minus 8,280 existing dwelling units as of 1 -1 -94;
minus 948 dwelling units which represent an estimate of the number
of allotments that are expected to be made available under existing
Measure F and vested prior to expiration of that ordinance; minus
an estimate of 1,132 dwelling units that will be exempt from any
growth management ordinance based on a prior court decision and
rural land use designation requiring 5 acre or larger lot size;
minus an estimate that 939.60 dwelling units (20 percent) will be
exempt because they will be "affordable ", "senior ", or other exempt
units as defined in Section 2 of draft ordinance; and based on the
City's General Plan buildout year of 2010, the number of dwelling
units required over a 15 -year period is then calculated:
Maximum Density of City General Plan = 14,911 du's (1992
Land Use Element)
14,911 du's + 147 Carlsberg Specific Plan du's (552 -405)
= 15,058 du's
15,058 du's - 8,280 du's (total du's in City as of 1 -1-
94) = 6,778 du's not yet constructed
6,778 du's - 948 du's (Measure F allotments already
allocated or expected to be allocated by 1995) = 5,830
du's -
5,830 du's - 1,132 du's (estimate of units exempt from
new ordinance based on prior court decision and rural
land use designation requiring 5 acre or larger lot size)
= 4,698 du's
4,698 x 20% (percentage of all other new dwelling units
expected to be exempt because they will be "affordable ",
"senior ", or other exempt units as defined in Section 2
of ordinance) = 939.60 exempt units
4,698 du's - 939.60 du's = 3,758.40 du's requiring
allotments
3,758.40 du's / 15 years (1996 through 2010) = 250.56
du's required per year through 2010
Round to 250 yearly allotments
NO
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CITY OF MOORPARK
COMMUNITY DEVELOPMENT DEPARTMENT
MEMORANDUM
TO: Cheryl Kane, City Attorney
FROM: Jaime Aguilera, Director of Community Development-0—
DATE: August 6, 1993
SUBJECT: REVIEW OF PRELIMINARY DRAFT GROWTH CONTROL ORDINANCE
Attached is a preliminary draft of a growth control ordinance that
has been developed by an Ad Hoc Committee appointed by the City
Council. Your review of the preliminary draft ordinance is
requested in order to provide legal advice to the Ad Hoc Committee.
The attached draft ordinance differs significantly from the current
Measure F.
Your comments are requested by August 31, 1993. Please ignore the
strikeout and redline shading in the attached document. It has
been included for the Committee's convenience, and will be removed
following their next meeting on August 17.
Please contact either myself or Debbie Traffenstedt if you have any
questions.
Attachment: Preliminary Draft Growth Control Ordinance
cc: Steven Kueny, City Manager
DRAFT
ORDINANCE NO.
AN ORDINANCE OF THE CITY OF
MOORPARK, CALIFORNIA, ESTABLISHING
A GROWTH MANAGEMENT SYSTEM
WHEREAS, Initiative Ordinance Measure F was adopted by the
voters of the City of Moorpark in November 1986, and established a
Residential Development Management System; and
WHEREAS, Initiative Ordinance Measure F includes a provision
for termination as of December 31, 1995; and
WHEREAS, Initiative Ordinance Measure F was adopted in
response to a period of intense residential development in the City
of Moorpark which adversely affected the capacity of the streets
and local freeway system to meet traffic demands, the capacity of
appropriate Schools to absorb children, the suburban -rural
character of the community, the quality of life prevalent in the
City and its sphere of influence, and the cost to households of
some utilities and municipal services; and
WHEREAS, it is the intent of the City Council to achieve a
steady, rather than a fluctuating, overly rapid, rate of
residential growth each year, thereby minimizing the avoidable
costs of short - sighted facility expansion; and
WHEREAS, controlled residential growth will ensure that the
services provided by City, School, Utility and /or service agencies
operating in the city can be properly and effectively staged in a
manner which will not overextend existing facilities, as well as
ensure that deficient services can be brought up to required and
necessary standards; and
WHEREAS, it is the intent of the City of Moorpark to establish
control over the quality, distribution, rate, and economic level of
residential growth in the city on a year -to -year basis in order to:
• Preserve the suburban -rural character of the
community;
• Protect the agricultural land and open space of the
City;
• Provide a suitable living environment for all
citizens of the City;
• Ensure the adequacy of municipal, school, utility,
recreation and park facilities and services;
• Attain a balanced City growth pattern which
includes a full mix of land uses;
Ordinance No.
Page 2
• Provide a variety of housing types and
opportunities for all economic segments of the
community;
0 Prevent further significant deterioration in the
local air quality;
• Ensure that the traffic demands do not exceed the
capacity of streets, highways, and freeways;
• Maintain consistency with adopted Ventura County
population forecasts for the Moorpark growth and
non - growth areas; and
WHEREAS, the City of Moorpark has considered the effect of
this ordinance on the housing needs of the region in which it is
situated and has balanced those needs against the public service
needs of its residents and available fiscal and environmental
resources. It is hereby found and determined that this ordinance
will not reduce the housing opportunities of the region and this
ordinance is compatible with the state housing goal and regional
housing needs. It is further found and determined that, to the
extent this ordinance may be determined to reduce the housing
opportunities of the region, the findings contained herein as to
the public health, safety and welfare of the city to be promoted by
the adoption of this ordinance, justify any such reduction in the
housing opportunities of the region; and
WHEREAS, it is the purpose of this ordinance to augment the
policies of the City of Moorpark General Plan and City Ordinances
relating to the regulation of residential development;
NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF MOORPARK,
CALIFORNIA, DOES ORDAIN AS FOLLOWS:
SECTION 1. APPLICABILITY
The provisions of the Growth Management System shall apply
from the effective date to all residential development including
mobilehomes in the City of Moorpark with the exception of the
following:
A. Projects of not more than four residential dwellings,
limited to only one such project per developer per
calendar year.
B. Fourplexes or lesser numbered multiple dwellings on a
single existing lot.
Ordinance No.
Page 3
C. Single family residential units on a single existing lot.
D. Rehabilitation or remodeling of an existing dwelling or
conversion of apartments to condominiums so long as no
additional dwelling units are created.
E. Dwelling units reserved for very low income, lower
income, or-,senior citizen households pursuant to an
affordable housing or development agreement.
F. Projects of residential dwellings with a minimum lot size
of five acres per dwelling.
G. Second dwelling units as defined in the City of Moorpark
Zoning Ordinance.
SECTION 2. DEVELOPMENT ALLOTMENT EVALUATION
In order to administer the system set forth herein, a
Development Allotment Evaluation Board (hereafter called the Board)
is established, consisting of the duly appointed members of the
Planning Commission of the City of Moorpark. The procedures and
by -laws of the Board shall be developed by the Board subject to the
approval of the City Council. The Community Development Department
(hereafter called the Department) of the City of Moorpark shall
serve as the staff of the Board.
SECTION 3. YEARLY ALLOTMENTS
The number of new residential development allotments available
for award each year in the City of Moorpark, except for dwelling
units exempted pursuant to the provisions of Section 2, shall be
four hundred and fifty -six (456).
Any allotments that are available for award in any calendar
year, but which are not awarded in that year for any reason
whatsoever, shall be carried over to each ensuing calendar year
until awarded. Such allotments shall be in addition to the
allotments that are otherwise available per calendar year pursuant
to this section. It is, therefore, possible that the number of
allotments awarded in a year would exceed 456 if there are
allotments that were carried over from previous years.
The number of annual development allotments shall be
continuously applicable to the city's jurisdictional boundaries and
shall not be modified by reason of annexation or additional
territory.
SECTION 4. DEVELOPMENT ALLOTMENT LIST
The Department shall keep a list of approved residential
planned development (RPD) permit numbers in
chronological order based on date of pry permit*approval.
This list shall be known as the Development Allotment List, and
Ordinance No.
Page 4
shall begin with the RFi Fermat that has the oldest approval
date and end with the most . recently approved traet RPf! �t311i t,
unless otherwise positioned due to the use of bonuspoints as
provided for in Section G.
A. The Development Allotment List shall contain the following
information:
1. The tentative tE ems- number project RPB pemu.t. number. map
2. The total number of later requiring
development allotments.
3. The number of allotments awarded per- for each tr-ae-t!;!IPD.
4. The ,date of tentative }rae RPU Permit approval.
B. The ranking of a project on the Development Allotment List
shall not be changed after passage of the base year in which
the tentative -tEaet -gyp RPD..Permi.t had been approved.
C. If a tEaet nta.ai. project is awarded bonus points during
the base year of.:..: RPM? Permit approval, pursuant
to the process described in Section* the the List shall be
updated within two working days of the decision to award the
bonus points.
SECTION 5. DEVELOPMENT ALLOTMENT AWARD PROCESS
A. Each applicant for development allotment(s) shall apply on a
form provided by the Department.
B. A.t�zaplete applications fos! ±eve.cfpment allotment(] must
be es -rtet� flersrh the Department no Later than the
last working day 'of each calendar year. Any application
deemed incomplete by the Department will not be considered as
accepted for filing.
C. Allotments for the previous year, pursuant to n Sectio :3 shall
be awarded each calendar year no later than 'the last "working
day of February.
D. Allotments shall be awarded for a traet RPD''project based on
its position on the Development Allotment List. .
Ordinance No.
Page 5
E. The City Council shall consider at a noticed public hearing
the rankings of the proposed developments on the Development
Allotment List, along with any action taken by the Board
concerning appealed decisions, and shall award development
allotments from that List. Notice of the hearing shall be
provided consistent with Section 6008 of the Government Code.
After closing the public hearing, the City Council shall award
all allotments for which it has received application, not to
exceed the maximum number of allotments available as
established in Section 3 herein.
F. If the firstae ? on the Development Allotment
List does not utilize of the allotments available, then
the traet next on the List will be eligible for award
of allotments. This process shall continue until there are no
allotments available or until there are no more tEaets
t,on the List, whichever comes first.
G. If the property owner or developer of a tr-aet RPD!!gr+AeCt
fails to submit an application for development allotments, no
allotments shall be awarded that tEaez project.
H. If a ti-aet RPDaaCCjG, for whatever reason, is not awarded
development allotments', or is awarded only a portion of the
allotments required to develop the project, that zrrae- prU B t
shall maintain its position on the Development Allotment list
until all required allotments have been received.
I. No single applicant may be awarded more than 50 percent (50 %)
of all allotments available during a single allotment year.
SECTION 6. BONUS POINTS
.............................
Any residential tract Pri ro a which is on the Development
Allotment List may have its position on the List improved if bonus
points are obtained. Bonus points will be awarded in recognition
of a project's contribution to the achievement of the goals of the
Growth Management Ordinance.
As provided for below, the owner or developer of a property
for which a tentative— RPD.Per�it has been approved may
submit an application to the Department for bonus points at any
time prior to acs tke Dist ixka.rtt .:diay 0�+vemb r of the
calendar (base) year that .. RPM i��3i. approval is
received. As identified in Section 4 e: `
1deezia� tEaets RPD
pr4jOv approved during the same calendar year will initially be
ranked on the Development Allotment List, in chronological order,
based on the date of approval of the tentative map RPD Permit. If
a tEaez RPD project receives a bonus point, it will be ranked° 'first
on the Development Allotment List for the base year of tentative
map RPD Permit approval. The tFaet RPD project with the most bonus
Ordinance No.
Page 6
points will be placed at the beginning of the List; other traets
Ri> # with lesser points shall follow in descending order of
ponts:f` "one or more projects receive equal bonus points, those
projects would be ranked in chronological order, based on the date
.. ...............................
of tentative p R"pD: per i approval.
The application and evaluation process for bonus points shall
be as follows:
A. Applicants for bonus points shall apply on a form provided by
the Department. The ,t=Ynps application and a process.nq
+� must be submitted to the Department no later than the last
working day of November of the base year that the tEaez RPD
Ft�# f. was appsw d b the city it
B. A noticed public hearing, shall be held by the Board on the
second Monday of December for the purpose of evaluating
applications for bonus points and finalizing a recommendation
to the City Council. The Board shall make its recommendation
decision no later than 15 days from the date of the public
hearing.
C> The following criteria shall be used by the Board to evaluate
applications for bonus points and develop a recommendation to
the City Council for bonus point award.
1. One point shall be awarded for every one percent (1 %) of
value of the infrastructure/ amenity p 7cpvIdet , which
was not required as a condition of the �z Rpp�i
approval. Said percent shall be calculated as a percent
o the appraised value of the poecti (at the time
of tentative �P� �er�tt t approval) ; and the appraised
value of the contribution.
a. The "infrastructure /amenity" shall be defined as a
list of projects which is compiled by the City
Council on a yearly basis and which is considered
to be important to the attainment of the goals of
the Growth Management Ordinance. This list is to
be known as the Growth Management Goal Attainment
(GMGA) list, and shall be established by resolution
of the city council. The GMGA list shall be in
order of priority.
Ordinance No.
Page 7
b. The owner of the tEa � p� ��t�t may either build
the infrastructure /amenity ..or may contribute
monetarily to the GMGA fund. All contributions
made to the GMGA fund may only be used to
capitalize projects on the GMGA list.
1 *fed
�.lahre
e ;►p +�st fall request in writing Ghat
the t x t bbta�x� informal `bids from three
ap►sisesa, s�.eted by Lhe . $ppl cant, from
the C ' y''s 13s� of qua3 �, ed iDora.isers
...............
2. One point shall be awarded if the project is considered
to be an "in- fill" development. An in -fill development
is defined as a tEaet RPD project which is surrounded on
three sides by existing development and does not require
the extension of water, sewer, electric, utilities or
street infrastructure to the site.
Ordinance No.
Page 8
3. Two points shall be awarded if then RPArp�Ct is
part of a Specific Plan.
E Having evaluated each development in accordance with the
foregoing criteria, the Board shall make a determination of
bonus point assignment, and the Department shall then publish
in a newspaper of general circulation for the City of
Moorpark, the preliminary bonus point assignment and revised
Development Allotment List based on that assignment.
Ordinance No.
Page 9
1. Any applicant may request the Board, at said public
hearing, to re- evaluate the preliminary bonus point
assignment made on any or all of the criteria. The Board
may alter its point assignment for a particular
development if the applicant demonstrates that there
exists pertinent information which the Board was not
aware of at the time of the original evaluation.
2. Any applicant who is dissatisfied with the Board's re-
evaluation may submit written notification of such
dissent, which will be furnished to the City Council
prior to the awarding of bonus points.
...................... .
3. If there is more than one trraet RPD ,project. with
identical bonus points, then the tEaet* which "received
tentative t ra& x*it. approval first shall be placed
.......................
ahead of the others on the Development Allotment List.
0$. Having evaluated each development and clarified all bonus
point assignments to the applicants, the Board shall present
the preliminary bonus point assignments and revised
Development Allotment List, along with the decisions reached
on any appeals, to the City Council for the final award of
bonus points.
��. The City Council shall hold a noticed public hearing on the
second Wednesday of January, prior to making a final
determination of the award of bonus points and revision of the
Development Allotment List. Notice of the hearing shall be
provided consistent with Section 6008 of the Government Code.
The City Council shall make a decision as to the final award
of bonus points no later than 15 days from the date of the
public hearing, and shall notify all applicants of the
decision by regular mail no later than 15 days from the date
of the decision.
SECTION 7. BUILDING PERMITS
No building permit for a non - exempt residential dwelling unit
shall be issued unless a residential development allotment for the
unit has been awarded; provided, however, that such building
permits shall not be issued in excess of 500 per calendar year. If
any of the 500 building permits which are available for issuance in
any calendar year are not issued in that year, they shall not be
carried over to the ensuing calendar year.
Ordinance No.
Page 10
SECTION B. GRADING PERMITS
No grading permit for a project containing non - exempt
residential dwelling units shall be issued unless there has been an
award of development allotments for the project. When the award is
for less than the entire project, grading beyond the immediate area
of the lots for which the applicant proposes to utilize the
development allotments may be allowed in accordance with the
following:
A. The applicant executes, in a form approved by the City
Attorney, a waiver of any claim of a vested right to be exempt
from the Growth Management System as a result of grading
beyond the area for which the development allotments have been
awarded and an acknowledgment that the applicant assumes any
risks that may result from commencement of grading prior to
the award of allotments for the entire project; and
The applicant has been awarded development allotments for at
least 15 percent (15 %) of the number of non - exempt residential
dwelling units in a project consisting of not more than 175
lots, in which event the grading may be carried out for the
entire project; or
B. The applicant has been awarded development allotments for at
least 15 percent (15 %) of the number of non - exempt residential
units in the first phase of a project consisting of more than
175 lots, in which event the grading shall be carried out in
phases. The phases shall be delineated by the applicant ox
the tentafve ;track :tap. No phase shall consist of more than
1'75 lots Grading of ., the f irst phase may commence once 15
percent (15 %) of the necessary allotments for that phase have
been awarded. Grading of the second phase and each phase
thereafter may commence once 75 percent (75%) of the necessary
allotments for the preceding phase have been awarded.
C. The City Council may approve or conditionally approve grading
in a manner not otherwise provided for in this subsection upon
a finding that strict compliance with the provisions of
paragraph A or B would work a substantial economic or
engineering hardship on the project.
D. All graded areas shall be treated with landscaping, as deemed
appropriate by the Director of Community Development, to
prevent erosion and to reduce visual impacts of the grading.
A landscaping plan shall be approved by the Director prior to
issuance of a grading permit
Ordinance No.
Page 11
SECTION 9. FAILURE To INAUGURATE
Should a developer fail to initiate construction within
twenty-four months after award of the development allotments, the
City Council after a public hearing may, by majority vote, rescind
all or part of the development allotments originally. awarded to the
RPD pro ect in question. ............... . ........ . ............ . .. ...
MW the
Any allotments which have been recovered as a result of action
by the City Council
.. ... ......
** * *'**f* * *** * *&***.:',�'��' s*p* *eqif * ...pro*
as authorized above,""sha'' 1-be* ... added **'tb the p661 *of 'non - allocated
development allotments.
SECTION 10. SEWRABILITY
If any section, subsection, sentence, clause, phrase, part or
portion of this Ordinance is for any reason held to be invalid or
unconstitutional by any court of competent jurisdiction, such
decision shall not affect the validity of the remaining portions of
this Ordinance. The City Council declares that it would have
adopted this Ordinance and each section, subsection, sentence,
clause, phrase, part or portion thereof, irrespective of the fact
that any one or more section, subsections, sentences, clauses,
phrases, parts or portions be declared invalid or unconstitutional.
SECTION 11. EFFECTIVE DATE
This Ordinance shall become effective thirty (30) days after
its passage and adoption.
SECTION 12. CERTIFICATION AND PUBLICATION
The city clerk shall certify to the passage and adoption of
this ordinance; shall enter the same in the book of original
ordinances of said city; shall make a minute of the passage and
adoption thereof in the records of the proceedings of the City
Council at which the same is passed and adopted; and shall, within
fifteen (15) days after the passage and adoption thereof, cause the
same to be published once in the Moorpark News-Mirror, a weekly
newspaper of general circulation, as defined in Section 6008 of the
Government Code, for the City of Moorpark, and which is hereby
designated for that purpose.
Ordinance No.
Page 12
PASSED AND ADOPTED this day of
1993.
Mayor of the City of Moorpark, California
ATTEST:
Lillian E. Hare
City Clerk
July 28, 1994
The Honorable-Mayor and
Members of the City Council
City of Moorpark
799 Moorpark Avenue
Moorpark, California 93021
Re: Growth Control Ordinance
Dear Mr. Mayor and Councilmembers:
BURKE, WILLIAMS. SORENSEN 6 GAAR
LIGHTON PLAZA
7300 COLLEGE BOULEVARD
SUITE 220
OVERLAND PARK. KANSAS 66210
(913133W-6200
WRITER'S DIRECT DIAL
213 - 236 -2721
OUR FILE NO, 01359`001
12/94
At your regular City Council meeting of July 20, 1994, you
requested that I report back to you regarding the recent
appellate court opinion in the case of Building Industry
Association of San Diego, Inc. v. City of Oceanside (D016581). A
summary of the opinion, which was filed on July 19, 1994 and
which is not for publication, as well as a copy of the opinion
are enclosed.
In an April 25, 1994 letter addressed to Jaime R. Aguilera,
the Director of Community Development, I advised the City that
the numerical growth management ordinance that is presently under
consideration by your City Council would best withstand a legal
challenge if it can be proven not to adversely impact the
regional supply of housing by income category (i.e. very low,
low, moderate and high). Although unpublished opinions cannot be
cited as precedence in other cases, the legal reasoning in those
opinions can be adopted by other courts. If the rationale in
Buildinq Industry Association of San Diego, Inc. v. Citv of
Oceanside is adopted by other courts, no numerical growth
management ordinance will be able to withstand attack if it
adversely impacts the regional supply of housing, particularly
very low and low income housing, notwithstanding the fact that
IAX2:103399.1
LAW OFFICES
BURKE, WILLIAMS & SORENSEN
VENTURA COUNTY OFFICE
611 WEST SIXTH STREET, SUITE 2500
2310 PONDEROSA DRIVE
LOS ANGELES, CALIFORNIA 90017
SUITE 1
CAMARILLO. CALIFORNIA 03010
(2131 236 -0600
16051 967 -3466
TELECOPIER 12131 236-2700
ORANGE COUNTY OFFICE
3200 BRISTOL STREET
SUITE 640
COSTA MESA. CALIFORNIA 92626
(714) 545 -5359
July 28, 1994
The Honorable-Mayor and
Members of the City Council
City of Moorpark
799 Moorpark Avenue
Moorpark, California 93021
Re: Growth Control Ordinance
Dear Mr. Mayor and Councilmembers:
BURKE, WILLIAMS. SORENSEN 6 GAAR
LIGHTON PLAZA
7300 COLLEGE BOULEVARD
SUITE 220
OVERLAND PARK. KANSAS 66210
(913133W-6200
WRITER'S DIRECT DIAL
213 - 236 -2721
OUR FILE NO, 01359`001
12/94
At your regular City Council meeting of July 20, 1994, you
requested that I report back to you regarding the recent
appellate court opinion in the case of Building Industry
Association of San Diego, Inc. v. City of Oceanside (D016581). A
summary of the opinion, which was filed on July 19, 1994 and
which is not for publication, as well as a copy of the opinion
are enclosed.
In an April 25, 1994 letter addressed to Jaime R. Aguilera,
the Director of Community Development, I advised the City that
the numerical growth management ordinance that is presently under
consideration by your City Council would best withstand a legal
challenge if it can be proven not to adversely impact the
regional supply of housing by income category (i.e. very low,
low, moderate and high). Although unpublished opinions cannot be
cited as precedence in other cases, the legal reasoning in those
opinions can be adopted by other courts. If the rationale in
Buildinq Industry Association of San Diego, Inc. v. Citv of
Oceanside is adopted by other courts, no numerical growth
management ordinance will be able to withstand attack if it
adversely impacts the regional supply of housing, particularly
very low and low income housing, notwithstanding the fact that
IAX2:103399.1
Mayor and Councilmembers - Moorpark
July 28, 1994
Page 2
there may have been compelling public health, safety or welfare
reasons for the adoption of the ordinance.
If I can provide you with any further information regarding
this matter, I would be glad to do so.
CJK:hsk
Enclosures
IAX2:103399.1
Iy tr ours,
RYL KAN ORNEY, MOORPARK; and
BURKE, WILLIAMS & SORENSEN
SUMMARY OF BIA II
Building Industry Assn. v. City of Oceanside
(D016581, Fourth Appellate District, Filed July 19, 1994)
(An Unpublished Opinion)
Background
From 1970 to 1980, the population of Oceanside grew by
89 percent. The growth rate as of 1987 was 5 percent per year or
60 percent per decade. In April of 1987, the voters of Oceanside
adopted a numerical growth control initiative known as Prop. A.
In most respects, Prop. A is similar to the numerical
growth management ordinance presently under consideration by the
City ( "Successor Ordinance "). Under Prop. A, an allotment is a
prerequisite to a building permit for residential development,
unless the residential unit is specifically exempt. Allotments
are limited to 1,000 for 1987 and to 800 for each year thereafter
through December 31, 1999. Allotments are awarded based on an
evaluation system that addresses "public facilities and services"
and "site and architectural quality ". The only substantive
difference between Prop. A. and the Successor Ordinance is that
the Successor Ordinance, unlike Prop. A, exempts density bonus
units from the allotment requirement.
Shortly after the adoption of Prop. A, the Building
Industry Association of San Diego,.Inc. and 10 developers
(collectively the "BIA") sued to have Prop. A invalidated on the
ground that it conflicts with state law. In June of 1986, the
Court of Appeals for the Fourth Appellate District held in BIA I
that the invalidity of Prop. A "can be established only by
determining facts bearing on whether the enactment truly
conflicts with state law and its purposes." (Building Industry
Assn. v. Superior Court (1989) 211 Cal.App.3d 277, 290.) -1' The
case was remanded to the superior court for an evidentiary trial.
On July 19th of this year, the appellate court that had decided
BIA I held that Prop. A was invalid as of the date of its
adoption, because it is inconsistent with the general plan and
the zoning and planning laws that were in effect at that time.?
I� The Fourth Appellate District covers Imperial, Inyo, Orange,
Riverside and San Bernardino counties. Ventura County and
hence Moorpark is in the Second Appellate District.
BIA I and BIA II were vigorously litigated on both sides.
As of mid -1990, the City of Oceanside reportedly had spent
(continued...)
L.AX2:103360.1
General Plan Inconsistency
In BIA I the appellate court had opined that "partial
inconsistency with portions of a general plan or state law will
not alone suffice to render a numerical growth control ordinance
invalid ". (BIA I at 290.) In BIA II the court declared that this
opinion had been undermined by the California Supreme Court in
the case of Lesher Communications. Inc. v. City of Walnut Creek,
(1990) 52 Cal.3d 531.
In BIA I the appellate court had also opined that
consistency between a numerical growth control ordinance and a
general plan "cannot be determined without reference to the facts
relating to the local entity's compliance with its obligation to
meet its share of regional housing needs." (BIA I at 284.) Upon
remand, the trial court had found that while Prop. A did not
prevent the City of Oceanside from satisfying its total share of
regional housing need, it did adversely impact the ability of
Oceanside to satisfy its fair share of very low /low income
housing and that Prop. A also impacted the availability of
moderate income housing.
Based upon the factual determinations of the trial
court and the fact that at the time Prop. A was adopted
Oceanside's general plan included a policy to "[a]void direct
controls on the number . . . of new housing units to be built"
and a policy to meet "the housing needs of all economic segments
of the community ", the appellate court in BIA II found that Prop.
A does not promote either general plan policy. It therefore
concluded that Prop. A is facially inconsistent with the general
plan.
Conflict With Statutory Provisions
Government Code Section 65008 provides that no city may
prohibit or discriminate against low or moderate income
residential development. Section 65913.1 requires cities to
adopt development standards that "contribute significantly to the
?'(...continued)
$1.5 million in legal fees on the defense of Prop A. (Los
Angeles Times, August 31, 1990, San Diego County Edition,
Part B, Page 2, Column 5.) Joining the parties in BIA I
were the City of Riverside and more than 40 other public
entities that filed an amicus curiae brief on behalf of the
City of Oceanside and the Pacific Legal Foundation, People
for Affordable Housing, Urban League of San Diego, San Diego
County Taxpayers Association and Hispanic Bankers
Association that filed amicus briefs on behalf of the BIA.
(BIA I at 280 -281.) No amicus briefs were reported to have
been filed in BIA II.
lAX2:1033%1 -2-
economic feasibility of producing housing at the lowest possible
cost ". Section 65915 requires cities to grant residential
density bonuses. In BIA II the appellate court opined that these
three government code sections "taken together, clearly show an
important state policy to promote the construction of low income
housing and to remove impediments to the same." The court
concluded that "Prop. A is such an impediment, and cannot survive
such a conflict."
In reaching this conclusion, the court did not rely
solely upon the trial court's factual determinations regarding
the impact of Prop. A on the supply of lower income housing. The
court also observed that Prop. A favors "development of large
units on larger lots, with more design and other amenities,
through the exemption for 10,000 square foot lots" and
discourages "housing that qualifies for density bonuses, due to
the exclusion of density bonus units from the low income and
senior exemption ".
Analysis
Under Evidence Code Section 669.5, a numerical growth
management ordinance that impacts the supply of housing that is
available in the region must be upheld if it can be proven that
the ordinance "is necessary for the protection of public health,
safety, or welfare ". The holding in BIA II vitiates the defense
of necessity.
BIA II cannot be cited as precedence by other courts,
because it is an unpublished opinion.!' Nevertheless, the holding
in that case can, and almost certainly will, be urged by
plaintiffs in other cases that challenge numerical growth
management ordinances. If the rationale of BIA II is adopted by
other courts, any numerical growth management ordinance that is
found to impact the regional supply of housing, particularly very
low and low income housing, will almost certainly be invalidated,
if not on the ground that it is inconsistent with the general
plan or the density bonus law then on the ground that it is
inconsistent with Government Code Sections 65008 and 65913.1.
3i BIA II does not become final until August 18, 1994; prior to
then, the BIA can petition the appellate court to have the
opinion published. Once BIA II becomes final, the City of
Oceanside will have ten days within which to seek California
Supreme Court review.
UX2:103360. t - 3 -
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
COURT OF APPEAL, FOURTH APPELLATE DISTRICTS
DIVISION ONE NK° XM
STATE OF CALIFORNIA
BUILDING INDUSTRY ASSOCIATION
OF SAN DIEGO, INC.,
Plaintiff and Appellant,
V. .
CITY OF OCEANSIDE,
Defendant and Respondent.
01Is \t°
VP 0
D016581
(Super. Ct. No. N37638)
APPEAL from a judgment of the Superior Court of San Diego
County, Herbert B. Hoffman, Judge. Reversed with directions.
This appeal by the Building Industry Association of San
Diego, Inc., a California nonprofit corporation (BIA) presents
questions as to the validity of a residential growth control
initiative, Chapter 32A of the City of Oceanside Municipal Code,
commonly known as Proposition A (Prop. A) , adopted by the voters
of the respondent City of Oceans =de (the City or Oceanside) .
Actions for declaratory and other- relief by BIA and Del Oro Hills
(Del Oro), a partnership, the plaintiff in a related action
(judgment in which was also appealed and is pending before this
appellate panel), were consolidated below, with Del Oro adopting
had to show that Prop. A bore a real and substantial relationship
to the public welfare of the citizens of Oceanside, or rather
that its provisions were "necessary" to protect the public
welfare).
FACTUAL AND PROCEDURAL BACKGROUND
1. Adoption of Prop. A
Our prior opinion contains the following summary of the
adoption and content of Prop. A, alternatively referred to as
Chapter 32A:
"Ch. 32A, adopted by the Oceanside electorate in
April 1987, declares one of its purposes is 'to
augment the policies of the City as recorded in
the General Plan and City ordinances relating to
the regulation of residential development,' and
'[i]n order to accomplish this purpose, the City
must be able to control the rate, distribution,
quality and economic level of proposed development
on a year to year basis.' Ch. 32A adopts a
'Residential Development Control System' (RDCS)
which, with what may be significant exceptions,
adopts a maximum number of dwelling units to be
constructed each year, called annual allotments.
The allotments are 1,000 for 1987 and 800 for each
year thereafter until December 31, 1999, with
power granted to the City Council to modify the
annual allotment by an amount no greater than 10
percent more or less for any given year and a
requirement the annual allotment for a next
succeeding year be adjusted higher or lower in
order to redress any excess or deficit in the
preceding year. Excepted from the RDCS are the
following: '(a) Projects of not more than four
residential dwellings, limited to only one such
project per developer per calendar year.
"'(b) Fourplexes or less numbered multiple
dwellings on a single existing lot.
"'(c) Single family residential units on a single
existing lot.
3
consideration for an annual allocation. The Board's
recommendations are forwarded to the City Council, which makes
the annual allocations.2
2. Oceanside's Land Use Regulation
At the time Prop. A was adopted, there were a number of
existing land use regulations in place in the City. Since 1982,
the City had had an interim growth management element (IGME) as
an element of its general plan, requiring projects with negative
fiscal impacts to be approved only by a supermajority of-the
planning commission and city council, and only if there were
offsetting benefits. Since 1979, the City's general plan had a
public facilities and management element (PFME), which stated as
its objective "[t]o influence the timing of development and to
direct it to those locations within the City that avoid or
minimize any adverse fiscal, economic, social or environmental
impacts." The PFME divided the City into four areas and gave
priority to development in those areas where adequate services
were available. The PFME stated a policy of avoiding "direct
controls on the number or location of new housing units built
2 All projects have already received the minimum points under
the "A" list (infrastructure and services) since they have
already received tentative subdivision map approval at that
stage. To obtain such a map, the project must be consistent with
the City's general plan and have been reviewed under the
California Environmental Quality Act (CEQA) for its impact on the
City's infrastructure.
5
not solved all the City's growth- related problems. However, no
official City action had been taken to invalidate the PFME.
3. The City's Growth Status as of 1987
In the 1970's, the City's growth rate had reached 8.94
percent per year. While the City's population grew by 89.4
percent from 1970 to 1980, the County's population increased by
37.1 percent. The growth rate as of 1987 was 5 percent annual
population increase, equivalent to 60 percent growth if sustained
for a decade. The City's expert witness, Dr. Myers, a professor
of urban and regional planning, testified that a 1 percent growth
rate is normal, and 2 percent per year or 25 percent per decade
is a healthy growth rate. In his opinion, at 40 percent growth
per decade, it is difficult to "keep up" with a city's growing
population. "[W]ith rapid growth the needs escalate[] and you
are always playing catch up."
Conflicting evidence was presented about the City's ability
to accommodate growth. The trial court heard evidence that there
were severe deficiencies in facilities and services, such as the
road system, fire, paramedic and police facilities and response
times, schools, libraries, parks and recreation facilities.
There were drainage and sewer problems. However, several City
officials and the City planner testified that the City's
infrastructures were in reasonably good shape.
4. Regional Supply of Low Income Housing
Pursuant to state law mandate, the San Diego Association of
Governments (SANDAG) determines the region's share of the state's
growth and allocates a regional snare for a five -year period to
7
growth control ordinance "can be established only by determining
facts bearing on whether the enactment truly conflicts with state
law and its purposes." (Building Industry, supra, 211 Cal.App.3d
at p. 290.)5 We stated that whether the regional housing needs
as established by SANDAG will be met by the City was a question
of material fact that awaited proof. (Id. at p. 293.) We
explained that some factual determinations by the trial court
would of necessity have to be projections of the reasonable
probability of accommodating regional housing requirements in
future housing periods. (Id. at p. 294.) We were unable to
establish the validity of any of BIA's various asserted conflicts
between Prop. A and state law "without reference to established
facts." (Ibid.) We further found that there was present no
clear invalidity of Prop. A due to inconsistency with the City's
general plan, on the basis that "factual determinations need to
be ::.ade before the question of inconsistency can be resolved."
(Id. at p. 297.)
5 One of the asserted conflicts with state law which BIA
argued in the prior appeal was whether Prop. A was in conflict
with section 65915, density bonus law. (Building Industry,
supra, 211 Cal.App.3d at pp. 282 -283.) We do not find any
reference in the prior opinion to the other two sections which
BIA currently pursues as asserted conflicts with state law, i.e.,
section 65008, subdivision (c), the prohibition on discrimination
against low income housing, or section 65913.1, establishing
appropriate standards for local zoning to contribute to the
economic feasibility of producing the lowest possible cost
housing. In our prior opinion, we discussed the asserted
conflicts with state law to some extent, but declined to--decide
them in light of the factual determinations which remained to be
made. (Building Industry, supra, at pp. 294 -295.)
9
more affordable housing (apartments, condominiums and townhouses)
as compared to detached residential homes after the
implementation of Prop. A. The court noted that from April 1987
to March 1990 only 415 total building permits were issued under
Prop. A's exception subdivision (f) for low income /senior
housing, and concluded that the Prop. A exception subdivision (f)
for lcw income persons or senior citizens was not generating
enough new housing units to approach the required SANDAG figures.
The City had not shown that any other exception to Prop..A was
generating low income housing (except for fourplex units), and
that the dwelling units generated by the annual allotment would
not be available to low income families due to the point ranking
system encouraging unit size, reduced density and other expensive
features. Declining to consider future mitigation measures to be
proposed by the City, on the grounds that the court must make its
decision on the present impact of Prop. A, the trial court found
that the City had not rebutted the presumption under Evidence
Code section 669.5, subdivision (a) that Prop. A would have an
impact on the supply of affordable residential units in the
region. The City challenged the trial court's ruling on Phase I
by writ application to this court, which was denied by order of
November 27, 1990. (D013199.)
6. Phase Two Trial and Findings
Under Evidence Code section 669.5, subdivision (b), the City
had the burden of proof that Prop. A was "necessary for the
protection of the public health, safety, or welfare of the
population of the city . . . ." (Ibid.) The trial court
11
future (through 2000), as a means of judging the validity of
Prop. A as of its adoption date, April 1987. The court noted
that Prop. A was to be used to time development with relation to
adequate services, over its duration. Thus, the trial court
clearly ruled that evidence of the 1987 -1990 implementation of
Prop. A was circumstantially relevant to the determination of
whether Prop. A was reasonably designed to accomplish its
objectives. It explained in the statement of decision that it
was required to balance the City's problems and the relationship
of the ordinance to the problems versus the "quantified adverse
effects which the ordinance (would) have upon the need for public
housing including affordable housing . . . ." The overall
balancing test had to be applied as of the adoption date, 1987.
The issue presented was Prop. A's impact as presently written,
not as potentially amended. In summary, the trial court had to
decide whether Prop. A was valid as of 1987, when its future
effects were taken into account, i.e., as shown by the
implementation and forecasting evidence that was presented to
show how Prop. A worked out in practice.
In making its specific findings, the trial court first
calculated that based on the 443 housing unit allocations issued
in the first three and one -half years of Prop. A's effective
period, in the categories of very low and low income and
fourplexes, there would be a deficiency of approximately 2,350
units in those categories for the current housing period (1991
through 1996). The court found there would be an additional
similar deficiency in moderate income units. The court then
13
managed growth ordinance. The court then concluded that the City
had the authority to implement a stronger ordinance or
initiative, such as Prop. A. The court then found that Prop. A
had a reasonable relation to the problems it was designed to
address, based on its ranking system and "A" and "B" list
criteria, and it was too speculative to say the City would
disregard the objectives of the initiative even though the number
of units permitted under Prop. A had actually been higher than
the number permitted before it went into effect.?
To compl2te the balancing test of the competing interests
affecting Prop. A, the trial court reiterated that about 20,000
people had, in its estimation, probably been deprived of
affordable housing during the term of Prop. A, but that
approximately 40,000 people would probably benefit from Prop. A,
insofar as it promoted quality of life considerations. This
40,000 figure was derived from a family of four, based on a
projected 10 -year allocation of 8,000 housing units (32,000
persons) during the duration of Prop. A, with an additional 7,800
persons benefiting from the 10,000 square foot lot exception.
The trial court thus concluded that although the denial of
7 Although the trial court noted that the 10,000 square foot
lot exception to Prop. A was not justified by an alleged current
imbalance in housing in favor of lower -end housing, and also
noted that the 10,000 square foot lot exception had hurt the
City's position in the Phase I trial, as it represented an
adverse effect upon the availability of low income housing, the
court found no such adverse effect in the Phase II trial from
that exception. The trial court explained that the 10,000 square
foot exception was subject to the ranking criteria, as were all
other projects under Prop. A.
15
the matter under submission and ruled in favor of the City on all
of the issues, explaining that although BIA had made a persuasive
showing that Prop. A conflicts with the density bonus provisions
of section 65915, the court was bound by the prior decision in
the case, ruling that state law did not preempt Prop. A and there
was no facial conflict between Prop. A and section 65915 at the
time Prop. A was adopted. The court further ruled that even in
light of BIA's showing of conflict between Prop. A and the
density bonus law, the low income /senior exception to Prop. A
(subd. (f)) should not be invalidated because section 69515 was
not triggered until a developer proposed a housing development,
by submitting a preliminary proposal to which the City was
required to respond by notifying the developer of the procedures
it planned to use to comply with the density bonus law (i.e., by
waiving or modifying development and zoning standards which would
otherwise inhiL-:t the utilization of the density bonus on
specific sites). Other findings were made as to sections 65008,
subdivision (c) , and 65913.1 (to be explained in pt. II D, post).
Judgment was entered accordingly and further proceedings as
to Del Oro were severed for trial. (See D017139.) BIA timely
appealed the judgment.
DISCUSSION
BIA presents as its threshold issue on appeal whether the
trial court properly interpreted Evidence Code section 669.5,
between a density bonus or financial incentives of equivalent
value.
17
A was invalid when passed because it is inconsistent with
policies established by the general plan, and it is further
invalid because it conflicted with state law as of the time of
its adoption. (Id. at pp. 540 -541, 544 -545, 547.) Because the
trial court should have ruled that Prop. A was facially in
conflict with the PFME and with state law, as expressed in the
cited Government Code housing statutes, and because the evidence
showed that, as applied, Prop. A remained in conflict with those
provisions, the issue of the proper standard to apply to assess
Prop. A becomes moot in light of the measure's invalidity ab
initio.
We begin our discussion of the conflict issue with an
analysis of the law of the case effect of our prior opinion, and
then discuss the tension between the policies promoted by the
PFME and state law, on the one hand, and Prop. A, on the other.
I
Law of the Case
In its statement of decision on Phase III of the BIA trial,
the trial court outlined its view of the effect of the prior
opinion upon its ruling on the issues presented regarding the
alleged conflict of Prop. A with the City's general plan and /or
the three particular Government Code sections relied on by BIA
(§§ 65008, 65913.1, 65915). The court first cited People v. Rath
Packing Co. (1974) 44 Cal.App.3d 56, 66 -67, for the rule that
issues of law that were before and decided by the Court of Appeal
are law of the case and binding on the trial court. The court
then listed the following five issues of law which it ruled
19
application results in a manifestly unjust decision. (Standard
Oil Co. v. Johnson (1942) 56 Cal.App.2d 411, 415, citing United
Dredging Co. v. Industrial Acc. Com. (1930) 208 Cal. 705, 712.)
"'[W]here the controlling rules of law have been altered or
clarified in the interval between the first and second appeal and
adherence to the previous decision would result in defeating a
just cause, it has been held that the court will not hesitate to
reconsider its prior determination. [Citations.] "' (Standard
Oil Co. v. Johnson, supra, at pp. 415 -416, original italics.)
In light.of this rule, we must consider the extent to which
the principles of law applied in our prior opinion have been
disapproved or modified by the Supreme Court's discussion of that
opinion in Lesher, supra, 52 Cal.3d at pages 545 through 547. In
Lesher, the Supreme Court decided that an initiative measure
limiting municipal growth was invalid at adoption because it
conflicted, contrary to state law, with the city's existing
general plan. The Supreme Court disagreed with two points in the
analysis in our prior opinion: First, the Supreme Court
disapproved any suggestion that a municipal zoning ordinance
which was inconsistent with a city's general plan could be
subject to a compliance decree rather than a finding of
invalidity. (Although no question of a remedy for an invalid
ordinance was reached by the trial court here, the point is
important on the general validity analysis.) Another statement
by the Supreme Court controls our review of several of the trial
court's rulings: The Supreme Court expressly disapproved the
prior opinion to the extent that it suggests other than that "[a]
21
"[L]aw of the case consists in the propositions of
law actually decided and applicable to the facts
in judgment. It only applies when, upon a
subsequent trial, the issues and facts found
remain substantially the same, and has no
application where the facts alleged and found are
materially different from those considered on a
former appeal. [Citation.] The doctrine is
applied only to the principles of law laid down by
the court on appeal as applicable to a retrial of
fact. [Citation.] Insofar as the former decision
related to the effect of the evidence or the
findings on the former trial there can be no
application of the doctrine until the facts have
been elicited on a retrial. The doctrine not only
does not apply to new and additional evidence, it
does not apply when explanation of previous
evidence appears in the later trial. (Citation.)"
(Weightman v. Hadley (1956) 138 Cal.App.2d 831,
841.)
With this rule in mind, we return to the prior opinion to
determine what it actually decided. The prior opinion consisted
of a denial of petitions for writ of mandate which sought to
compel the superior court to grant motions for summary judgment
or adjudication brought by BIA and Del Oro, which would have
invalidated Prop. A. This court upheld the trial court's
determination that triable issues of fact remained before the
question could be resolved whether there is facial inconsistency
between Prop. A and the City's general plan or state law. We
explained that the matter of conflict between a growth control
ordinance and state law or a general plan "cannot be determined
without reference to facts relating to a local entity's
compliance with its obligation to meet its share of regional
housing needs." (Building Industry, supra, 211 Cal.App.3d at p.
284.) In discussing the various arguments made by BIA and Del
Oro, this court consistently emphasized that factual
2?
II
Conflict of Prop. A with the General Plan or State Law
Introduction
The above law of the case analysis does not end our inquiry.
Our task now is to decide whether on the facts as now established
by the trial court, Prop. A meets the standards set out by
Lesher, supra, 52 Cal.3d 531 regarding conflict of a zoning or
planning ordinance with either a City's general plan or the state
Zoning and Planning Law. (§ 65000 et seq.)10 First, to
reiterate the statements in Lesher concerning conflict of a
zoning ordinance with a general plan, such an ordinance is
"invalid at the time it is passed. (Citations.] The court does
not invalidate the ordinance. It does no more than determine the
existence of the conflict. It is the preemptive effect of the
controlling state statute, the Planning and Zoning Law, which
invalidates the ordinance." (Lesher, supra, 52 Cal.3d at p.
544.) The Planning and Zoning Law, in this context, requires
adoption and maintenance of a city's general plan. ( §.65300 et
seq.; Lesher, supra, at pp. 538 -539.) Under section 65860,
county or city zoning ordinances must be consistent with the
entity's general plan, such that "[t]he various land uses
10 In Lesher, the Supreme Court held that the growth control
initiative before it regulated land use, on its face, and as
such, was equivalent to a zoning ordinance. (Lesher, supra, 52
Cal.3d at pp. 541, 544.) Here, the parties do not dispute that
Prop. A is in the nature of a zoning ordinance.
25
control ordinance and state law or a general plan. (Building
Industry, supra, 211 Cal.App.3d at p. 284.) In the trial in this
matter, the court made certain findings, which we now summarize,
regarding the City's compliance with its obligation to meet its
share of regional housing needs. In Phase I, the trial court
made a finding that for the 1986 -1991 housing period, the City
had met its regional share of new residential housing units
(considering all income categories). For both the 1991 -1996
period and the 1996 -2000 period, it was projected to do so
also.11 The•court emphasized that for the 1986 -1991 housing
period, the City had met and exceeded its regional share for
lower /moderate income categories. However, since some of those
units were attributable to pre -Prop. A permits, the court opined
that it was too simplistic to say that resolves all the issues;
thus, the court looked to post - implementation housing periods.
The court reasoned that when Prop. A took full effc,--t in 1988,
affordable housing declined, so the next housing period is
relevant.
Thus, considering the 1991 -96 period (as required by the
prior opinion, which allowed projections, and to allow for pre-
Prop. A permits), the court noted that only 443 units were
approved from Prop. A's adoption in April 1987 through March 1990
11 In a footnote in the statement of decision the trial court
observes that this portion of the evidence disregards very low
income or assisted housing or "fair share" allotment, as it is
enough for section 669.5 analysis to consider low and moderate
income housing only; BIA did not dispute that issue.
2- 7
could not show the 1991 -1996 low /moderate income regional share
units would be built.
The court estimated a deficiency of 2,350
low income, senior citizen and fourplex category units for the
"current housing period" (meaning 1991 - 1996.) Prop. A was also
found to adversely impact availability of moderate income units
for 1991 -1996, although the evidence was not clear as to how
much. In light of the probable effect and duration of the
restriction, the court found it should give less weight to
compliance with total regional share than to compliance with the
all income categories share. The court then engaged in its
numerical balancing effort (there was a 33 percent impact in
1991 -1996 on the City's regional share of very low /low /moderate
income categories; likely the same proportion in 1996 -2000) and
its analysis of the competing interests or justification for
ordinance, which included the previous four years' implementation
evidence as to the timing requirement against the ad�:erse effect
on low income housing, all over the duration of Prop. A.
The trial court's overall conclusion on the degree of the
City's compliance with its obligations to provide low and
moderate income regional share units was that its 1986 -1991
compliance was not enough, as the court had to go on to the 1991-
1996 period to make a complete analysis, and the City could not
show it would meet the regional share for low /moderate income
units for that period. In the statement of decision for Phase I,
the trial court noted that the prior opinion required and allowed
it to make projections of the reasonable probability of
29
proposed density bonus project would still have to await building
permit allocations, which would reduce or eliminate the incentive
of the density bonus. The court stated that the recent
amendments to the density bonus law had not alleviated that
impact of Prop. A, and the new density bonus law as amended
sought to create even stronger incentives for the housing needs
of low income households. The court went on to find that it was
premature to speculate on whether the City might comply with the
density bonus law, when no developer proposal was yet before the
City planning-authorities. The court further stated it was bound
by the prior opinion's discussion that state law did not preempt
Prop. A.
Although we have determined it is not necessary to address
the issues raised concerning the application of the Evidence Code
section 669.5, subdivision (b) balancing test, it is relevant
here to note that the City, in its response to the brief filed by
amicus curiae, Pacific Legal Foundation and People for Affordable
Housing, has agreed that the trial court went too far in
speculating how Prop. A might be implemented and in engaging in a
numbers test, i.e., the estimation that while some 20,000 persons
would be deprived of affordable housing under Prop. A, some
40,000 persons would be benefited by its promotion of a better
quality of life. Under the circumstances, we should not place
too much weight upon the trial court's application of the
balancing test, and instead focus upon the various factual
findings that it made for purposes of analyzing any conflict
31
the EIR was not a policy making document, but only informational
in nature.
In light of the clear statement in Lesher, supra, 52 Cal.3d
at p. 544, that a zoning ordinance that conflicts with a general
plan is invalid at the time it is passed, and in light of the
factual findings that Prop. A adversely affected the availability
of low income housing, the only possible finding is that Prop. A
does conflict with the City's general plan, specifically the
PFME, regarding the imposition of direct controls on the number
or location of.new housing units to be built. This restriction
on land uses is not compatible with the then - existing general
plan. (§ 65860, subd. (a)(ii); Lesher, supra, at p. 545.)
Although the trial court reasoned that the City had the
power to adopt a more restrictive type of growth control than
that represented by the PFME, it could not do so without validly
amending the existing qeneral plan. According to the reasoning
of Lesher, supra, 52 Cal.3d at pages 540 -544, general plans
cannot be impliedly amended and a zoning ordinance cannot be
deemed a general plan amendment without a clear indication that
the voters intended to accomplish such an objective when passing
the initiative.13 Moreover, Lesher clearly indicates that no
13 We reject the City's theory, newly raised at oral argument,
that because the voter information materials stated Prop. A was
to "augment" the general plan, Prop. A may be considered to be an
implied amendment to the general plan. (Lesher, supra, 52 Cal.3d
at pp. 539 -544; see DeVita v. County of Napa (1993) 20
Cal.App.4th 1716 review granted March 17, 1994 (S037642).) There
is no clear indication on this record that the voters reasonably
interpreted Prop. A as such an amendment.
33
citizens of the City, we are bound by Lesher to find the
ordinance invalid under those standards.
0
Conflict With Statutory Provisions
BIA and Del Oro next assert that Prop. A conflicts with
three particular sections in the State Planning and Zoning Law.
The text of the sections on which BIA and Del Oro rely is in
relevant part, in the version in effect at the adoption of Prop.
A in 1987, as follows:
Section 65008, subdivision (c):
"No city, county, or city and county shall, in the
enactment or administration of ordinances pursuant
to this title, prohibit or discriminate against a
residential development or emergency shelter
because the development or shelter is intended for
occupancy by persons and families of low and
moderate income, as defined in Section 50093 of
the Health and Safety Code, or persons and
families of middle income."
Section 65913.1:
"(A] city . . . shall designate and zone
sufficient vacant land for residential use with
appropriate standards . . . to meet housing needs
as identified in the general plan . . .
'appropriate standards' shall mean densities and
requirements . . . which contribute significantly
to the economic feasibility of producing housing
at the lowest possible cost given economic and
environmental factors, the public health and
safety, and the need to facilitate the development
of housing for persons and families of low and
moderate income "
Section 65915:
"(a) When a developer of housing agrees to
construct at least (1) 25 percent of the total
units of a housing development for persons and
35
of dense housing and available land zoned for small attached
units, as well as a low income exemption in Prop. A., there was
no substantial conflict between Prop. A and section 65913.1. As
to section 65915, the density bonus law, the trial court ruled
that even though it found Prop. A discouraged the development of
low income housing units which would be eligible for a density
bonus, and even though there was some showing that Prop. A
conflicted with density bonus provisions, the trial court did not
have to invalidate the low income exemption to Prop. A because by
its amended terms section 65915 was not triggered until a
developer actually proposed a housing development, thus allowing
it to submit a preliminary proposal to which the City must
respond with its proposed action to provide the density bonus.
Again, Lesher, supra, 52 Cal.3d 531, provides strong
guidance for this Court in analyzing the conflicts issue. The
Supreme Court disapproved the prior opinion to the extent that it
suggests that a city may adopt ordinances and regulations which
conflict with the state Planning and Zoning Law. (Lesher, supra,
at p. 547.) The Supreme Court's action undercuts the statement
in the prior opinion that "[a]pparent partial inconsistency with
portions of a general plan or state law will not alone suffice to
render a numerical growth control ordinance invalid." (Building
Industry, supra, 211 Cal.App.3d at p. 290.) It also suggests
that "substantial compliance" with state law is too lenient a
test to apply to zoning and land use control ordinances. (Id. at
p. 291.) We should thus look at the question of conflict between
Prop. A and these provisions in light of the facts established by
37
However, it declined to invalidate the ordinance on that ground,
using the theory that section 65915 had not been shown to have
been triggered by a developer's specific proposal of a density
bonus project.16
The three cited Government Code sections, taken together,
clearly show an important state policy to promote the
construction of low income housing and to remove impediments to
the same. Prop. A is such an impediment, and cannot survive such
a conflict. Although the City has made efforts to implement a
policy to mitigate the harshness of the exemption of density
bonus projects from the exception in Prop. A for low income or
senior citizen housing, those efforts do not change the text of
the initiative measure. We also find the trial court's
hypertechnical reasoning that the density bonus law had not been
triggered as of the time of trial to be unpersuasive in light of
the clear facial conflict between Prop. A and the density bonus
law, and the very low number of low income or senior citizen
allocations which were made between 1987 and 1990.
16 In opposition to BIA's argument as to a conflict between
Prop. A and section 65913.1, the City has made a request for
judicial notice of a document showing that the State Department
of Housing and Community Development found that the City's
housing element of its general plan was adequate and identified
adequate sites for its share of the regional housing need.
(Evid. Code, §§ 452, 459.) BIA has requested that this document
be stricken from the record as representing a post - judgment
matter which is irrelevant to the issues presented. (People's
Home Say. Bank v. Sadler (1905) 1 Cal.App. 189, 193.) Since
judgment was entered in the BIA action December 24, 1991, and the
Housing and Community Development letter approving the draft
housing element revisions was not sent until August 19, 1992, it
appears that BIA's objection is well taken and we have not
considered that document in connection with deciding this appeal.
39
housing goals through the year 2000, as a result of Prop. A, a
facial conflict with section 65913.1 and Prop. A is apparent.
E
Conclusion
Further proceedings to develop additional factual background
on the conflict issue are unnecessary. Where there is a lack of
substantial evidentiary dispute about the facts underlying a
question of statutory interpretation, the proper interpretation
of statutory language is a question of law which an appellate
court may review de novo, independent of the trial court's ruling
or rationale. (Los Angeles County Safety Police Assn. v. Count
of Los Angeles (1987) 192 Cal.App.3d 1378, 1384.) The facial
conflict of Prop. A with these three sections stating state
housing policy may be determined as a matter of law. (See
§ 65580, subd. (a), making the legislative finding as to housing
elements that "[t]he availability of housing is of vital
statewide importance, and the early attainment of decent housing
and a suitable living environment for every California family is
a priority of the highest order "; also, the Legislature
recognized that cooperation between government and the private
sector would be necessary to accommodate the housing needs of
Californians of all economic levels. (§ 65580, subd. (b).))
Prop. A must be considered invalid as of the date of its
adoption.
We find support for our conclusion that Prop. A is in
conflict with state housing policy as expressed in the state
Planning and Zoning Law (sections as cited) in Livermore, supra,
41
T
WC:90497.3
BY FAX AND MAIL
April 25, 1994
Jaime R. Aguilera
Director of Community Development
City of Moorpark
799 Moorpark Avenue
Moorpark, California 93021
Re: Growth Control Ordinance
Preliminary Draft
Dear Jim:
9URKE, WILLIAMS. SORENSEN i OAAR
LIGNTON PLAZA
7300 COLLEGE 60ULEVARD
SUITE 220
OVERLAND PARK, KANSAS 66210
(9131339-6200
WRITER'S DIRECT DIAL
213 - 236 -2721
OUR FILE NO. 01359-001
94/12
By memorandum dated April 6, 1994, you have requested a
response to the legal issues that were raised by the BIA in a
letter dated March 23, 1994 relative to the proposed numerical
growth management ordinance. You have also asked if the proposed
ordinance is legally defensible and, if not, what should be done
to make it legally defensible. My responses are set forth below.
A. BIA Legal Issues
1. The Proposed Ordinance Overlaps Measure F
It is my understanding that the proposed ordinance is
intended to take effect upon the expiration of Measure F. Thus,
there would be no overlapping of the two ordinances.
2. The Proposed Ordinance Conflicts With The Settlement
Agreement
By its own terms, the Settlement Agreement applies to
Measure F while it is in effect. (Settlement Agreement, § 2.3.)
The Settlement Agreement does not preclude the City from adopting
a new and different numerical growth management ordinance upon
the expiration of Measure F.
gECEIVED
qpp � 81994
City of Moorpark
l,ommunity Development Department
LAW OFFICES
BURKE, WILLIAMS & SORENSEN
VENTURA COUNTY OFFICE
611 WEST SIXTH STREET, SUITE 2500
2310 PONDEROSA DRIVE
LOS ANGELES, CALIFORNIA 90017
SUIT[ 1
CAMARILLO. CALIFORNIA 93010
(21]1 236-0600
(605) 967 -3466
TELECOPI[R 12131 Z36 -2700
ORANGE COUNTY OFFICE
3200 6RISTOL STREET
SUITE 640
COSTA MESA, CALIFORNIA 92626
(7041 545i6SO
WC:90497.3
BY FAX AND MAIL
April 25, 1994
Jaime R. Aguilera
Director of Community Development
City of Moorpark
799 Moorpark Avenue
Moorpark, California 93021
Re: Growth Control Ordinance
Preliminary Draft
Dear Jim:
9URKE, WILLIAMS. SORENSEN i OAAR
LIGNTON PLAZA
7300 COLLEGE 60ULEVARD
SUITE 220
OVERLAND PARK, KANSAS 66210
(9131339-6200
WRITER'S DIRECT DIAL
213 - 236 -2721
OUR FILE NO. 01359-001
94/12
By memorandum dated April 6, 1994, you have requested a
response to the legal issues that were raised by the BIA in a
letter dated March 23, 1994 relative to the proposed numerical
growth management ordinance. You have also asked if the proposed
ordinance is legally defensible and, if not, what should be done
to make it legally defensible. My responses are set forth below.
A. BIA Legal Issues
1. The Proposed Ordinance Overlaps Measure F
It is my understanding that the proposed ordinance is
intended to take effect upon the expiration of Measure F. Thus,
there would be no overlapping of the two ordinances.
2. The Proposed Ordinance Conflicts With The Settlement
Agreement
By its own terms, the Settlement Agreement applies to
Measure F while it is in effect. (Settlement Agreement, § 2.3.)
The Settlement Agreement does not preclude the City from adopting
a new and different numerical growth management ordinance upon
the expiration of Measure F.
gECEIVED
qpp � 81994
City of Moorpark
l,ommunity Development Department
Jaime R. Aguilera
April 25, 1994
Page 2
3. In Order To Adopt The Proposed Ordinance The City Must
Adopt Findings Of Necessity That Are Supported By
Substantial Evidence
Pursuant to Government Code Section 65863.6, any numerical
growth management ordinance, other than one adopted by
initiative,?, must "contain findings as to the public health,
safety, and welfare of the city . . . to be promoted by the
adoption of the ordinance which justify reducing the housing
opportunities of the region." However, the findings do not have
to be supported by "substantial evidence ". Such evidence is only
required for administrative actions. (C.C.P. § 1094.5(c).) The
adoption of a numerical growth management ordinance is not an
administrative action; it is a legislative action. (Pacific
Corp. V. City of Camarillo (1983) 149 Cal.App:3d 168, 174.) For
legislative actions, the required findings need only have a
reasonable basis in fact. (Balch Enters. Inc. v. New Haven
Unified School Dist. (1990) 219 Cal.App.3d 783, 792.)
4. The Proposed Ordinance Is Inconsistent With The General
Plan
BIA's factual contentions are based upon the legal
assumption that numerical growth control ordinances are zoning
ordinances. At least one trial court has found that such an
ordinance is a zoning ordinance, but the issue has yet to be
decided in a published, and hence precedent setting, opinion.
(Building Industry Assn. v. Superior Court (1989) 211 Cal.App.
277, 296 -297.)
Without ruling on the issue of whether a numerical growth
management ordinance constitutes a zoning ordinance, the court in
Building Industry Assn. did rule that the "invalidity of such an
ordinance can be established only by determining facts bearing on
whether the enactment truly conflicts with state law and its
purposes. Apparent partial inconsistency with portions of a
general plan or state law will not alone suffice to render a
numerical growth control ordinance invalid." (Id. at 290;
Emphasis added.) Thus, BIA's supposition of inconsistency would
not alone suffice to invalidate the proposed ordinance.
Building Industry Assn. v. City of Camarillo (1986) 41
Cal.3d 810.
LAX:90497.3
Jaime R. Aguilera
April 25, 1994
Page 3
5. An EIR Must Be Prepared For The Proposed Ordinance
An EIR must be prepared for any project that "may have a
significant effect on the environment ". (Pub. Res. Code
§ 21151.) Whether or not the proposed ordinance is a project
that may significantly affect the environment is a factual
determination that is required to be made on the basis of a
preliminary review (State CEQA Guidelines, Cal. Code Regs., tit.
14, § 15051) and an initial study (Id. at § 15061).
Because it requires a factual determination, I cannot advise
you as to whether a negative declaration would suffice in this
instance. However, I do caution you that if an EIR is prepared
on the basis that the proposed ordinance will significantly
affect the environment because of the impact on the regional
housing supply and if the validity of the ordinance is
challenged, the City will have the formidable burden of proving
that the ordinance is necessary for the protection of the public
health, safety or welfare. (Evid. Code § 669.5; See § 1 of my
letter to you dated August 30, 1993.)
6. Awarding Bonus Points For Large Lot /Reduced Density
Projects Attempts To Do Indirectly What State Law
Prohibits Doing Directly
Although density bonus units would be exempt from the
allotment requirement under the proposed ordinance, projects
containing such units could not be built without allotments given
that the market rate units would not be exempt. However, the
result suggested by BIA only has merit if it can reasonably be
expected that bonus point projects will capture so many
allotments that the development of density bonus projects is no
longer feasible.
B. Legal Defensibility Of The Proposed Ordinance
The proposed ordinance is legally defensible if:
1. It will not impact the regional supply of housing; or
2. If it does impact the supply, it is necessary for the
protection of the public health, safety or welfare of
the city's population.
UUC:90497.3
Jaime R. Aguilera
April 25, 1994
Page 4
Neither of these two issues can be determined without
reference to the underlying facts. (Building Industry Assn. V.
Superior Court, supra, 211 Cal.App.3d at 293 -294.) Since I have
seen no factual analysis of the proposed number of allotments
relative to regional housing need or the need for the ordinance,
I cannot specifically advise you as to the defensibility of the
ordinance. However, I can advise you that the ordinance would
almost assuredly withstand a legal challenge if the impact on the
regional supply of housing can be rebutted.
The most convincing way of rebutting the presumption that
numerical growth management ordinances impact the regional supply
of housing would be for the ordinance to (i) contain four
categories of allotments to coincide with the four categories of
regional housing need contained in the Housing - Element and (ii)
provide that the allotments per category will coincide with the
need established in the Housing Element for that category. In
addition to eliminating the presumption of impact, this approach
would also eliminate any argument that the ordinance is
inconsistent with the Housing Element or is subject to
invalidation under Government Code section 65863.6.
If you have any questions regarding my comments, please do
not hesitate to contact me.
CJK:hsk
cc: Steven Kueny
LUC:904973
Vry trs,
MOORPARK; and
BURKE, WILLIAMS & SORENSEN
UAX:859N.1
March 10, 1994
Jaime Aguilera
Director of Community Development
City of Moorpark
799 Moorpark Avenue
Moorpark, California 93021
Re: Growth Control ordinance
Preliminary Draft
Dear Jim:
RECEIVED
[AAR 111994
City of Moorpark
�0�D�911R�YA�tal�aeteeaoe� ,�,�AAR
LIGNTON PLAZA
7300 COLLCGE BOULEVARD
SUITE 220
OVERLAND PARK, KANSAS 66210
10131339-6200
WRITERS DIRECT DIAL
213 - 236 -2721
OUR FILE NO. 01359 -001
By memorandum dated February 11, 1994, you have requested
review of the above- described ordinance no later than March 14,
1994. My comments are noted below
A. Section 1 Findings
I call your attention to the fact that the number of
building permits rather than the number of development allotments
that are available per year will actually determine the housing
supply. (Government Code § 669.5(a).)
B. Section 4 Development Allotment Lists
The "Department" is not defined.
With respect to subdivision C, Government Code Section 6008
does not define "weekly newspaper of general circulation ". I
also question the rationale for requiring that the list be
published in a "weekly" newspaper. (See also S 6.D.)
C. Section 6 Bonus Points
The phrase "prior to the last working day" in the first
paragraph is inconsistent with the phrase "no later than the last
working day" in subdivision A.
With respect to subdivisions E and F, there is no appeal.
Also, given the fact that the City Council is to hold its hearing
on the second Wednesday of February, the ordinance does not, in
LAW OFFICES
$URKE, WILLIAMs 8c SoRENSEN
VENTURA COUNTY OFFICE
611 WEST SIXTH STREET, SUITE 2500
2310 PONDEROSA DRIVE
LOS ANGELES, CALIFORNIA 90017
SUITE I
CAMARILLO. CALIFORNIA 93010
(213) 235-0600
(805) 987 -3466
TELECO -ER 1213) 236 -2700
ORANGE COUNTY OFFICE
1200 BRISTOL STREET
SUITE 640
COSTA MESA, CALIFORNIA 92626
(7141 545 -5559
UAX:859N.1
March 10, 1994
Jaime Aguilera
Director of Community Development
City of Moorpark
799 Moorpark Avenue
Moorpark, California 93021
Re: Growth Control ordinance
Preliminary Draft
Dear Jim:
RECEIVED
[AAR 111994
City of Moorpark
�0�D�911R�YA�tal�aeteeaoe� ,�,�AAR
LIGNTON PLAZA
7300 COLLCGE BOULEVARD
SUITE 220
OVERLAND PARK, KANSAS 66210
10131339-6200
WRITERS DIRECT DIAL
213 - 236 -2721
OUR FILE NO. 01359 -001
By memorandum dated February 11, 1994, you have requested
review of the above- described ordinance no later than March 14,
1994. My comments are noted below
A. Section 1 Findings
I call your attention to the fact that the number of
building permits rather than the number of development allotments
that are available per year will actually determine the housing
supply. (Government Code § 669.5(a).)
B. Section 4 Development Allotment Lists
The "Department" is not defined.
With respect to subdivision C, Government Code Section 6008
does not define "weekly newspaper of general circulation ". I
also question the rationale for requiring that the list be
published in a "weekly" newspaper. (See also S 6.D.)
C. Section 6 Bonus Points
The phrase "prior to the last working day" in the first
paragraph is inconsistent with the phrase "no later than the last
working day" in subdivision A.
With respect to subdivisions E and F, there is no appeal.
Also, given the fact that the City Council is to hold its hearing
on the second Wednesday of February, the ordinance does not, in
Jaime Aguilera
March 10, 1994
Page 2
fact, afford applicants 15 days to submit their dissents. For
example, this year the Planning Commission would have met on
January 10th and would have had to render its decision by January
25th. Assuming that there was sufficient time for the newspaper
to publish the list two days later on January 27th, applicants
would have had until February 11th to submit their dissents even
though the City Council would have met on February 9th.
D. Section 10 Termination of Ordinance
There are no published opinions that explain what evidence
is needed to rebut the presumption of Evidence Code Section
669.5; to wit: that numerical growth control impacts the regional
supply of housing. When Measure F was challenged, Moorpark was
one of the first, if not the first, city to argue that the
presumption is rebutted if the supply of housing is not
restricted below the share of regional housing that is identified
in the city's Housing Element. The trial court accepted this
argument, but ruled that Moorpark had not rebutted the
presumption because Government Code Section 65588 required that
its Housing Element be revised prior to the expiration of
Measure F.
Since the same Government Code section requires two
revisions to the City's Housing Element prior to the termination
of the proposed ordinance in 2005, the Housing Element will not
serve to conclusively rebut the presumption of Evidence Code
Section 669.5. Unless the ordinance is tailored to the Housing
Element cycle of revisions, the City should give serious
consideration at this time to developing an alternative theory
for rebutting the presumption.
If you have any questions regarding my comments, please
do not hesitate to contact me.
V y tru ours,
Che 1 J Kane
CITY RNEY, OORPARK; and
BURKE, WILLIAMS and SORENSEN
cc: Steven Kueny, City Manager
LAX:95904.1
I.
2310 PONDEROSA DRIVE
SUITE I
CAMARILLO. CALIFORNIA 93010
(8 05) 987 -3468
LAX: tl3275. t
LAW 0r I E3
BURKE, WILLIAMS 8c SORENSEN
61I VIEST SIXTH RL I
L05 ANGELES. CAL I ORNIA 90017
12131 23 Cj I I.
TELECOPIEq I]11 . }b 2'0C
February 10, 1994
BY FAX AND MAIL
Deborah S. Traffenstedt
Senior Planner
City of Moorpark
799 Moorpark Avenue
Moorpark, California 93021
Re: Growth Control Ordinance
Preliminary Draft
Dear Debbie:
3200 BRISTOL STREET
SUITE 640
COSTA MESA, CALIFORNIA 92625
1 T 141 5455559
213 - 236 -2721
01359 -001
#93/65
By handwritten message dated February 9, 1994, you have
requested that I review a staff report of even date to determine
whether it accurately summarizes comments that I have made
relative to an earlier draft of the ordinance. It does.
You have also asked if the City would have to defend a
numerical growth control ordinance adopted by initiative on the
basis of the public health, safety and general welfare. I am
somewhat confused by the question, as I am unsure if it is posed
with reference Government Code section 65863.6 or Evidence Code
section 669.5 or otherwise. Thus, I will answer the question
based on the assumption that the question relates to one or the
other of the specified code sections.
The requirement of Section 65863.6 that findings as to the
public health, safety and welfare be contained in the ordinance
is applicable only if the ordinance is adopted by the City
Council. The City does not have the burden of proving these
findings pursuant to Section 65863.6 if the ordinance is adopted
by initiative. On the other hand, the City will have that
burden, or at least a similar burden, under Section 669.5,
regardless of whether the ordinance is adopted by the City
Council or by initiative. Under that section, the City must
prove that the ordinance is necessary to protect the public
RECEIVED
- F R Pi'1�994
City of Moorpark
,,Ir,ogiTy Oevelopment Depar-
Deborah S. Traffenstedt
February 10, 1994
Page 2
health, safety or welfare, unless it can rebut the presumption
that the ordinance will impact the regional housing supply.
If you have any questions regarding my comments, please do
not hesitate to contact me.
Very truly yours,
Ch J. Kan
CITY ATTORNEY, MOORPARK; and
BURKE, WILLIAMS and SORENSEN
cc: Steven Kueny, City Manager
LAX:83775.1
August 30, 1993
Jaime Aguilera
Director of Community Development
City of Moorpark
799 Moorpark Avenue
Moorpark, California 93021
Re:, Growth Control Ordinance
Preliminary Draft
Dear Jim:
RECE I vE D
"3i 10
B 4tLM1QQJJkVkNSE N 6 GAAR
LIGNT ON PLAZA
7700 COLLEGE BOVLEVARO
SUITE 220
OVERLAND PARE, KANSAS 66210
(917) 739-6200
WRITER'S DIRECT DIAL
213 - 236 -2721
OUR FILE NO 01359 -001
RE��lVED
AUG 311993
City of Moorpark
Community Development Department
By memorandum dated August 6, 1993, you have requested
review of the above- described ordinance. My comments are noted
below in two parts. The first part addresses two overriding
legal issues that pertain to all numerical growth control
ordinances. The second part addresses issues that are limited to
the ordinance as it is presently drafted.
I.
A. Burden of Proof.
Under ordinary circumstances, anybody who seeks to
invalidate an ordinance has the burden of proving that the
ordinance violates constitutional or statutory law or does not
rationally relate to the public health, safety or welfare. In
1975, a numerical growth control ordinance withstood a challenge
on all three grounds. (Construction Industry Association v. City
of Petaluma (1975 9th Cir.) 522 F.2d 897.) In 1980, the State
Legislature was persuaded to enact Eyidence Code Section 669.5,
which makers it easier for developers to challenge numerical
growth control ordinances by shifting the burden of proof from
the plaintiff to the defendant city.
Section 669.5 applies to both initiative and legislative
adopted numerical growth control ordinances. (Building Ind.
Assn. v. City of Camarillo (1986) 41 Cal.3d 810.) Specifically,
it subjects such ordinances to a presumption of "impact on the
supply of residential units available in an area which includes
territory outside the [local] jurisdiction" and, unless the court
LAX.6702 f . t
LAW OFFICES
BURKET WILLIAMS 8C SORENSEN
VENTURA COUNTY OFFICE
611 WEST SIXTH STREET, SUITE 2500
2710 PONDEROSA DRIVE
SUIT[ 1
LOS ANGELES, CALIFORNIA 90017
CAM ARILLO, CALIFORNIA 1113310
(213) 2360600
(605) 967 -7466
TELECOPIER 1217! 276-2700
ORANGE COUNTY OFFICE
7200 BRISTOL STREET
SUITE 640
COSTA MESA. CALIFORNIA 92626
(714! 545 -3359
August 30, 1993
Jaime Aguilera
Director of Community Development
City of Moorpark
799 Moorpark Avenue
Moorpark, California 93021
Re:, Growth Control Ordinance
Preliminary Draft
Dear Jim:
RECE I vE D
"3i 10
B 4tLM1QQJJkVkNSE N 6 GAAR
LIGNT ON PLAZA
7700 COLLEGE BOVLEVARO
SUITE 220
OVERLAND PARE, KANSAS 66210
(917) 739-6200
WRITER'S DIRECT DIAL
213 - 236 -2721
OUR FILE NO 01359 -001
RE��lVED
AUG 311993
City of Moorpark
Community Development Department
By memorandum dated August 6, 1993, you have requested
review of the above- described ordinance. My comments are noted
below in two parts. The first part addresses two overriding
legal issues that pertain to all numerical growth control
ordinances. The second part addresses issues that are limited to
the ordinance as it is presently drafted.
I.
A. Burden of Proof.
Under ordinary circumstances, anybody who seeks to
invalidate an ordinance has the burden of proving that the
ordinance violates constitutional or statutory law or does not
rationally relate to the public health, safety or welfare. In
1975, a numerical growth control ordinance withstood a challenge
on all three grounds. (Construction Industry Association v. City
of Petaluma (1975 9th Cir.) 522 F.2d 897.) In 1980, the State
Legislature was persuaded to enact Eyidence Code Section 669.5,
which makers it easier for developers to challenge numerical
growth control ordinances by shifting the burden of proof from
the plaintiff to the defendant city.
Section 669.5 applies to both initiative and legislative
adopted numerical growth control ordinances. (Building Ind.
Assn. v. City of Camarillo (1986) 41 Cal.3d 810.) Specifically,
it subjects such ordinances to a presumption of "impact on the
supply of residential units available in an area which includes
territory outside the [local] jurisdiction" and, unless the court
LAX.6702 f . t
Jaime Aguilera
August 30, 1993
Page 2
finds that the defendant city has rebutted the presumption,
places the burden on the city to prove that "the ordinance is
necessary for the protection of the public health, safety, or
welfare of the population of the city ". (Emphasis added.)
Proving that a numerical growth control ordinance is
"necessary" is a formidable burden. A recitation of findings by
no means suffices. Proof requires the presentation of evidence
in the form of facts or of opinion relating to fact. (Building
Industry Assn. v. Superior Court (1989) 211 Cal.App.3d 277.)
In the event of a challenge to the subject ordinance, the
City should expect that it would have to bear the burden of
proof. To shift the burden of proof back to the plaintiff, the
City would have to prove that there is a reasonable probability
that regional housing requirements can be accommodated for as
long as the ordinance is in effect. (Building Industry Assn. v.
Superior Court, supra, at 294.) That would be all but impossible
to prove given that the ordinance contains no sunset clause and
thus would be in effect for an indeterminate period.
B. Compensatory Taking.
In First English Evangelical Lutheran Church v Los Angeles
County, (1987) 107 S.Ct. 2378, 2389, the U.S. Supreme Court held
that compensation must be paid when a governmental regulation has
worked a temporary taking of all use of property, except when the
taking was caused by "normal delays in obtaining building
permits, changes in zoning ordinances, variances, and the like."
(Emphasis added.) The effect of _First English on numerical
growth control ordinances has yet to be determined.
One California appellate court did hold that an ordinance
under which proposed development projects were evaluated and then
placed in a "queue" based on a point system involved reasonable
delay and so did not constitute a compensable taking. (Griffin
Homes. Inc. v. Superior Court (1991) 229 Cal.App.3d 991.)
However, that decision has been depublished by the California
Supreme Court. The Supreme court never explains why it has
ordered depublication of a case, but once a case is depublished,
it cannot be cited as authority in any subsequent case.
The issue of whether a numerical growth control ordinance
constitutes a compensable taking is not likely to be resolved any
time soon. If the issue is eventually decided in favor of cities
by the California courts, the debate will almost certainly shift
to the federal courts. It should also be noted that a final
resolution that is unfavorable to cities would have retroactive
LVC:67021.1
Jaime Aguilera
August 30, 1993
Page 3
effect, since the statute of limitations on inverse condemnation
is at least six years. (A longer statute of limitations has been
argued in some cases, and this is another issue that also awaits
final resolution.)
II.
A. Recitals.
A numerical growth control ordinance is subject to
invalidation on the ground that it is clearly inconsistent with
the applicable general plan. (Building Indus. Assn. v. Superior
Court, supra.) The herein eighth and final recital provides that
the purpose of the ordinance is to "augment" the policies of the
City's General Plan. Since augment means to "increase ", the
effect of this recital is to suggest that the ordinance is not
consistent with the General Plan as it is presently adopted. The
problem is compounded by the facia that the General Plan cannot be
changed except by an amendment adopted in accordance with
Government Code section 65350, et seq.
Pursuant to Government Code section 65863.6, a numerical
growth control ordinance must contain public health, safety and
welfare "findings" that "Justify" reducing the housing
opportunities of the region ", unless the ordinance is adopted by
initiative. (Emphasis added; Building Ind. Assn. v. City of
Camarillo, su ra.) The herein seventh recital provides that "the
findings contained herein" "justify" whatever reduction that may
result from the ordinance. However, nowhere in the recitals or
in the body of the ordinance are "findings" actually made. (Cf.
the second sentence of recital seven.) In anticipation that the
City would have the burden of proof under Evidence Code section
669.5, the findings should be couched in terms that not only
satisfy the "justification" standard of section 65863.6, but also
satisfy the higher "necessity" standard of section 669.5.
B. Section 1. Applicability
Since the ordinance applies to mobilehomes, you may want to
consider whether the conversion of mobilehome parks to
condominiums should be exempted as is the conversion of
apartments to condominiums. If the former are not exempted,
there must be some rational reason for the distinction.
C. Section 4 Development Allotment List.
With respect to subdivision B, residential developments that
are approved in December of any year are expressly excluded from
L X:67021.1
Jaime Aguilera
August 30, 1993
Page 4
bonus point consideration, since the application must be received
by the end of November (§ 6.A); even residential developments
that are approved prior to the application deadline are
effectively excluded from infrastructure /amenity bonus point
consideration, since the application must include the appraisal
report (§ 6.C.1.c.6) and the appraisal process would take several
weeks to accomplish. Such unequal treatment would, almost
certainly, be held to be an unconstitutional violation of due
process or equal protection. Such a holding could result in the
invalidation of the entire ordinance, if the courts were to find
that the purpose of the ordinance could not be served with the
bonus provisions severed.
D. Section 5. Development Allotment Award Process.
With respect to subdivision E, I call your attention to the
fact that the ordinance does not provide for appeals from the
decisions of the Board.
E. Section 6. Bonus Points.
With respect to subdivisions B and E, I call your attention
to the fact that the ordinance is silent with respect to the
method of giving notice of the public hearing.
With respect to subdivision D.2, I call your attention to
the fact that an applicant could file the dissent at any time,
that is, even after the date of the public hearing.
If you have any questions regarding my comments, please do
not hesitate to contact me.
Very truly yours,
i
Chery;.J. Kane
CITY ATTORNEY, MOORPARK; and
BURKE, WILLIAMS and SORENSEN
cc: Steven Kueny, City Manager
LAX:67021.1