Ordinance 2011-12
ORDINANCE NO. 2011-12
AN URGENCY INTERIM ORDINANCE OF THE CITY COUNCIL OF THE CITY OF
GILROY EXTENDING FOR A PERIOD OF TEN (10) MONTHS AND FIFTEEN (15)
DAYS URGENCY INTERIM ORDINANCE NO. 2011-11 PROHIBITING THE
APPROVAL OF ANY RESIDENTIAL DEVELOPMENT PROJECT EAST OF
HIGHWAY 101
WHEREAS, Government Code sections 65580 through 65589.8 require local agencies to
adopt, implement and periodically revise a housing element into their general plans to
accommodate their respective fair share of new and affordable housing; and
WHEREAS, the City has adopted a housing element, but is in the process of planning
and updating it as required by law; and
WHEREAS, Government Code section 65589.3 provides that if the California
Department of Housing and Community Development ("HCD") finds that a housing element or
housing element revision substantially complies with Article 1 0.6 of Division 1 of Title 7 of the
Government Code (sections 65580 through 65589.8), then the housing element or housing
element revision is rebuttably presumed to be valid; and
WHEREAS, on August 19, 2010, after months of study and working with a planning
consultant knowledgeable on State law requirements for housing elements, the City submitted its
proposed housing element revision ("Housing Element Revision") to HCD for its review and
"substantial compliance" finding under Government Code section 65589.3, and has submitted to
HCD several revised drafts since that time responding to HCD comments and suggestions, the
most recent of which was submitted on or about July 15,2011; and
WHEREAS, HCD has yet to either approve or reject the City's proposed Housing
Element Revision as being in substantial compliance with Article 10.6 of Division 1 of Title 7 of
the Government Code; and
WHEREAS, the City of Gilroy ("City") has a long standing General Plan policy not to
allow any residential development east of Highway 101; and
WHEREAS, all versions of the proposed Housing Element Revision submitted to HCD
since August 2010 specifically locate all residential development to the west side of Highway
101 and any new residential development projects proposed to be located on the east side of
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Ordinance No. 2011-12
Highway 101 would directly conflict with the current planning process for the proposed Housing
Element Revision; and
WHEREAS, the City received an application for a residential housing project east of
Highway 101, which use is at this time in conflict with the contemplated Housing Element
Revision under review as part of the planning process to update the housing element; and
WHEREAS, Government Code Section 65858 provides that a city may, with or without
following the notice and public hearing procedures otherwise required prior to the adoption of a
zoning ordinance, "adopt as an urgency measure an interim ordinance prohibiting any uses that
may be in conflict with a contemplated general plan, specific plan, or zoning proposal that the
legislative body, planning commission or the planning department is considering or studying or
intends to study within a reasonable time"; and
WHEREAS, on August 1,2011, in accordance with Government Code section 65858(a),
the City Council at a duly noticed public meeting took testimony and adopted Ordinance No.
2011-11 (a copy of which is attached hereto as Exhibit "A"), which prohibited, for a period of 45
days, the approval or issuance of any residential development project entitlements for the
construction of new residential development projects in the City on the east side of Highway
101, including but not limited to, tentative maps, zoning amendments, use permits, building
permits, or any other entitlements; and
WHEREAS, the adoption of Ordinance No. 2011-11 was necessary to provide additional
time for the City and HCD to complete their planning, consideration and analysis of the proposed
Housing Element Revision and to prohibit such uses that might be in conflict with the planning
process; and
WHEREAS, on September 12, 2011, in accordance with State law, the City Council held
a dilly noticed public hearing and took testimony regarding this urgency interim ordinance
extension ("Extension Ordinance"); and
WHEREAS, the City Council has considered, and by adopting this Extension Ordinance
ratifies and adopts, the September 2, 2011 report prepared by City staff describing the measures
taken to date to alleviate the conditions which led to the adoption of Ordinance No. 2011-11, a
copy of which is attached hereto as Exhibit "B"; and
WHEREAS, said report explains that following the adoption of Ordinance No. 2011-11,
there have been additional written comments sent to HCD by third parties regarding the Housing
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Ordinance No. 2011-12
Element Revision, to which comments the City has responded in writing, and that there have also
been verbal communications between City staff and HCD staff, but that HCD has still not made
a decision whether or not to certify the Housing Element Revision as being in compliance with
State law; and
WHEREAS, because the conditions justifying the adoption of Ordinance No. 2011-11
thus have not been alleviated, the City Council now desires to extend the moratorium established
by Ordinance No. 2011-11 for an additional ten (10) months and fifteen (15) days, as permitted
by Government Code Section 65858(a); and
WHEREAS, the City Council finds that this Extension Ordinance is not subject to the
California Environmental Quality Act ("CEQA") (Public Resources Code sections 21000 et
seq.), because it will not result in a direct or reasonably foreseeable indirect physical change in
the environment, and it does not have the potential to resu1t in a physical change to the
environment, directly or indirectly (Title 14, Chapter 3 of the California Code of Regulations
"CEQA Guidelines," sections 15060(c)(2) and (3)).
NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF GILROY HEREBY
FINDS AND ORDAINS AS FOLLOWS:
SECTION I
In accordance with State law, the City Council hereby finds that:
The approval of any development entitlements for residential development projects in the
City located east of Highway 101, including but not limited to, tentative maps, zoning
amendments, use permits, building permits, or any other entitlements, will be in conflict with the
City's planning and processing through HCD of the proposed Housing Element Revision, and
will result in a current and immediate threat to public health, safety or welfare as follows:
1. Approval of any new residential development projects located east of Highway
101 would conflict with the City's proposed Housing Element Revision currently under study
wherein all identified sites for possible future rezoning to housing uses are located west of
Highway 101.
2. The public health, safety or welfare requires the immediate enactment of this
Extension Ordinance because it is necessary to provide additional time for the City and HCD to
complete their consideration and study of the proposed Housing Element Revision.
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Ordinance No. 2011-12
3. The public health, safety or welfare further requires the immediate enactment of
this Extension Ordinance to prevent any impairment of the City's Constitutional police power to
make and enforce its land use laws, and specifically, to not approve any residential development
projects located east of Highway 101 that are currently prohibited by the Land Use Element of
the City's General Plan and are not included in the proposed Housing Element Revision.
4. The absence of any interim development controls would create a serious threat to
the orderly and effective implementation of the City's proposed Housing Element Revision when
adopted, and any related 2020 General Plan, Zoning Ordinance, and/or Gilroy City Code
amendments which may be adopted by the City as a result of the proposed Housing Element
Revision.
SECTION II
PROHIBITION ON APPROVALS OF RESIDENTIAL DEVELOPMENT PROJECTS
ON THE EAST SIDE OF mGHW A Y 101.
In accordance with the authority granted the City under Article XI, Section 7 of the
California Constitution and California Government Code Section 65858, from and after the
effective date of this Extension Ordinance, no residential development project entitlements,
including but not limited to, tentative maps, zoning amendments, use permits, building permits,
or any other entitlements, shall be approved or issued for the construction of new residential
development projects in the City on the east side of Highway 101, for a period of ten (10)
months and fifteen (15) days.
SECTION III
If any section, subsection, sentence, clause or phrase of this Interim Urgency Ordinance
is for any reason held to be invalid or unconstitutional, such decision shall not affect the validity
of the remaining portions of this ordinance. The City Council of the City of Gilroy hereby
declares that it would have passed and adopted this ordinance, and each section, subsection,
sentence, clause or phrase hereof, irrespective of the fact that anyone or more sections,
subsections, sentences, clauses or phrases may be declared invalid or unconstitutional.
SECTION IV
This Extension Ordinance is adopted pursuant to Government Code Section 65858(a).
The City Clerk shall certify to the adoption of this Urgency Interim Ordinance and cause the
same to be published in the manner prescribed by law, and it shall become effective immediately
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Ordinance No. 2011-12
upon its adoption and remain in effect for a period of ten (10) months and fifteen (15) days
unless extended in accordance with Government Code Section 65858(a).
PASSED AND ADOPTED BY THE COUNCIL OF THE CITY OF GILROY this
12th day of September 2011, by the following vote:
AYES:
COUNCILMEMBERS: ARELLANO, BRACCO, DILLON, LEROE-
MUNOZ, TUCKER, WOODWARD and PINHEIRO
NOES:
COUNCILMEMBERS:
NONE
ABSENT:
COUNCILMEMBERS:
NONE
APPROVED:
4~
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Ordinance No. 2011-12
qcitp of ~ilrop
7351 Rosanna Street
Gilroy, California
95020-6197
Telephone (408) 846-0202
Facsimile (408) 846-0500
http://www.ci.QilrOY.ca.us
Thomas J. Haglund
CITY ADMINISTRATOR
September 2,2011
Report on Behalf of City Council on Conditions Re Urgency Interim Ordinance No. 2011-
11 Prohibiting Residential Development Projects East of Highway 101
Backeround: On August 1, 2011, the City Council adopted Ordinance No. 20 11-11, an urgency
interim ordinance precluding the approval of development entitlements for any new residential
development on the east side of Highway 10 1 for a period of 45 days. Ordinance No. 2011-11
was adopted because any new residential development on the east side of Highway 101 would
conflict with Gilroy's proposed General Plan Housing Element Revision (the "Revision"), which
provides that all new residential development should be on the west side of Highway 101. The
most recent draft of the Revision, responding to comments on earlier drafts by the State
Department of Housing and Community Development ("HCD") was filed with the State in July
and is still in the process of being reviewed for compliance with the Housing Element Laws by
the HCD. The Government Code requires that ten days prior to the expiration of the ordinance,
the City issue a written report describing the measures taken to alleviate the conditions that led to
the adoption of the ordinance. Ordinance No. 20 II-II expires on September 14, 2011.
Report: The conditions which led to the adoption of Ordinance No. 2011-11 have not been
alleviated. HCD has still not made a determination as to whether or not the proposed Housing
Element Revision substantially complies with State requirements, and there is still pending
before the City an application for various entitlements for a residential development on the east
side of Highway 101 that conflicts with the proposed Housing Element Revision that HCD is
still reviewing
Since August 1, 20 II, City staff has worked diligently to obtain a decision by HCD on this
matter. The HCD has solicited comments on the Revision from developer Bill Cusack and from
the Silicon Valley Law Foundation. Both have submitted written comments on the Revision, and
the City, through its consultants, has responded in writing to each comment. Staff has also
explained its responses verbally to the staff person at HCD who is evaluating the Revision.
However, HCD still has not made its determination as to whether it will certify the Revision as
complying with State law, or whether it will require further modifications.
Thomas J. Haglund, City Administrator
ORDINANCE NO. 2011-11
AN INTERIM ORDINANCE OF THE CITY COUNCIL OF THE CITY OF GILROY
ADOPTED AS AN URGENCY MEASURE PROHIBITING THE APPROVAL OF ANY
RESIDENTIAL DEVELOPMENT PROJECT EAST OF mGHW AY 101 FOR A
PERIOD OF FORTY FIVE (45) DAYS
WHEREAS, Government Code sections 65580 through 65589.8 require local agencies to
adopt, implement and periodically revise a housing element into their general plans to
accommodate their respective fair share of new and affordable housing; and
WHEREAS, the City has adopted a housing element, but is in the process of planning
and updating it as required by law; and
WHEREAS, Government Code section 65589.3 provides that if the California
Department of Housing and Community Development ("HCD") finds that a housing element or
housing element revision substantially complies with Article 1 0.6 of the Government Code
(sections 65580 through 65589.8), then the housing element or housing element revision is
rebuttably presumed to be valid; and
WHEREAS, on August 19, 2010, after months of study and working with a planning
consultant knowledgeable on State law requirements for housing elements, the City submitted its
draft housing element revision ("Housing Element Revision") to HCD for its review and
"substantial compliance" finding under Government Code section 65589.3, and has submitted to
HCD several revised drafts since that time responding to HCD comments and suggestions, the
most recent of which was submitted on or about July 15,2011; and
WHEREAS, HCD has yet to either approve or reject the City's proposed Housing
Element Revision as being in substantial compliance with Article 10.6 of the Government Code;
and
WHEREAS, the City of Gilroy ("City") has a long standing General Plan policy not to
allow any residential development east of Highway 101; and
WHEREAS, all versions of the proposed Housing Element Revision submitted to HCD
since August 2010 specifically locate all residential development to the west side of Highway
101 and any new residential development projects proposed to be located on the east side of
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Ordinance No. 2011-11
Highway 101 would directly conflict with the current planning process for the proposed Housing
Element Revision; and
WHEREAS, the City received an application for a residential housing project ("Project")
east of Highway 101, which use is at this time in conflict with the contemplated Housing
Element Revision under review as part of the planning process to update the housing element;
and
WHEREAS, Government Code Section 65858(a) provides that a city may, without
following the procedures otherwise required prior to the adoption of a zoning ordinance, "adopt
as an urgency measure an interim ordinance prohibiting any uses that may be in conflict with a
contemplated general plan, specific plan, or zoning proposal that the legislative body, planning
commission or the planning department is considering or studying or intends to study within a
reasonable time"; and
WHEREAS, an interim ordinance prohibiting for a reasonable time the processing of
applications for residential development projects east of Highway 101 is necessary to provide
additional time for the City and HCD to complete their planning, consideration and analysis of
the proposed Housing Element Revision and to prohibit such uses that might be in conflict with
the planning process; and
WHEREAS, on August 1, 2011, in accordance with State law, the City Council held a
dilly noticed public meeting and took testimony regarding this interim urgency ordinance
("Interim Urgency Ordinance"); and
WHEREAS, the City Council finds that this Interim Urgency Ordinance is not subject to
the California Environmental Quality Act ("CEQA," Public Resources Code sections 21000 et
seq.), because it will not resillt in a direct or reasonably foreseeable indirect physical change in
the environment, and it does not have the potential to result in a physical change to the
environment, directly or indirectly (Title 14, Chapter 3 of the California Code of Regulations
"CEQA Guidelines," sections 15060(c)(2) and (3).
NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF GILROY HEREBY
FINDS AND ORDAINS AS FOLLOWS:
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Ordinance No. 2011-11
SECTION I
In accordance with State law, the City Council hereby fmds that:
The approval of any development entitlements for residential development projects in the
City located east of Highway 101, including but not limited to, tentative maps, zoning
amendments, use permits, building permits, or any other entitlements, which may be in conflict
with the City's planning and processing through HCD the proposed Housing Element Revision,
will result in a threat to public health, safety or welfare as follows:
1. Approval of any new residential development projects located east of Highway
101 wou1d conflict with the City's proposed Housing Element Revision currently under study
wherein all identified sites for possible future rezoning to housing are located west of Highway
101.
2. The public health, safety or welfare requires the immediate enactment of this
Interim Urgency Ordinance because it is necessary to provide additional time for the City and
HCD to complete their consideration and study of the proposed Housing Element Revision.
3. The public health, safety or welfare further requires the immediate enactment of
this Interim Urgency Ordinance to prevent any impairment to the City's Constitutional police
power to make and enforce its land use laws, and specifically, to not process any residential
development projects located east of Highway 101 that are currently prohibited by the Land Use
Element of the City's General Plan and are not included in the proposed Housing Element
Revision.
4. The absence of any interim development controls would create a serious threat to
the orderly and effective implementation of the City's proposed Housing Element Revision when
adopted, and any related 2020 General Plan, Zoning Ordinance, and/or Gilroy City Code
amendments which may be adopted by the City as a result of the proposed Housing Element
Revision.
SECTION D
PROmBITION ON APPROVALS OF RESIDENTIAL DEVELOPMENT PROJECTS
ON THE EAST SIDE OF mGHW A Y 101.
In accordance with the authority granted the City under Article XI, Section 7 of the
California Constitution and California Government Code Section 65858, from and after the
effective date of this Interim Urgency Ordinance, no residential development project
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Ordinance No. 2011-11
entitlements, including but not limited to, tentative maps, zoning amendments, use permits,
building permits, or any other entitlements, shall be approved or issued for the construction of
new residential development projects in the City on the east side of Highway 101.
SECTION In
If any section, subsection, sentence, clause or phrase of this Interim Urgency Ordinance
is for any reason held to be invalid or unconstitutional, such decision shall not affect the validity
of the remaining portions of this ordinance. The City Council of the City of Gilroy hereby
declares that it would have passed and adopted this ordinance, and each section, subsection,
sentence, clause or phrase hereof, irrespective of the fact that anyone or more sections,
subsections, sentences, clauses or phrases may be declared invalid or unconstitutional.
SECTION IV
This Interim Urgency Ordinance is adopted pursuant to Government Code Section 65858.
The City Clerk shall certify to the adoption of this Interim Urgency Ordinance and cause the
same to be published in the manner prescribed by law, and it shall become effective immediately
upon its adoption and remain in effect for a period of forty-five (45) calendar days unless
extended in accordance with Government Code Section 65858.
PASSED AND ADOPTED BY THE COUNCIL OF THE CITY OF GILROY this 1st
day of August 2011, by the following vote:
AYES:
COUNCILMEMBERS:
NOES:
ABSENT:
COUNCILMEMBERS:
COUNCILMEMBERS:
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072611-047ll6ll89
ARELLANO, BRACCO, DILLON, LEROE-
MUNOZ, TUCKER, WOODWARD and
PINHEIRO
NONE
NONE
APPROVED: ~~
Albeit Pinhe' , Mayor
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Ordinance No. 2011-11
I, SHA WNA FREELS, City Clerk of the City of Gilroy, do hereby certify that the
attached Urgency Ordinance No. 2011-12 is an original ordinance, or true and correct copy of a
City ordinance, duly adopted by the Council of the City of Gilroy at a regu1ar meeting of said
Council held on the lth day of September, 2011, at which meeting a quorum was present.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed the Official Seal of
the City of Gilroy this 13th day of September, 2011.
(Seal)
I, SHA WNA FREELS, City Clerk of the City of Gilroy, do hereby certify that the
attached Urgency Ordinance No. 2011-11 is an original ordinance, or true and correct copy of a
City ordinance, dilly adopted by the Council of the City of Gilroy at a regular meeting of said
Council held on the 1 st day of August, 2011, at which meeting a quorum was present.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed the Official Seal of
the City of Gilroy this 2nd day of August, 2011.
(Seal)