Loading...
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 lLAC\856953.3 083111..Q4 706089 -1- 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 lLAC\856953.3 083111..Q4706089 -2- 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. lLAC\856953.3 083111..Q4706089 -3- 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 lLAC\856953.3 083111..Q4 706089a -4- 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~ lLAC\856953.3 083111..Q4 706089 -5- 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 \LAC\854499.1 072611..Q4miOl19 -1- 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: 1LAC\854499.1 072611~706089 -2- 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 1LAC\854499.1 072611..Q4706ll89 -3- 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: 1LAC\854499.1 072611-047ll6ll89 ARELLANO, BRACCO, DILLON, LEROE- MUNOZ, TUCKER, WOODWARD and PINHEIRO NONE NONE APPROVED: ~~ Albeit Pinhe' , Mayor -4- 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)