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3-11-2025 Presentation3/26/2025 1 Serving on the Planning CommissionCity of Cupertino – March 25,2025 Serving on the Planning Commission: An Overview City of Cupertino | March 25, 2025 Serving on the Planning CommissionCity of Cupertino – March 25,2025 Serving on the Planning CommissionCity of Cupertino – March 25,2025 Presentation Overview •Source of Power to Regulate Land Use •Regulatory Tools •General Plans •Other Plans •Zoning •California Environmental Quality Act (CEQA) •Role of the Planning Commission •Suggestions for Commissioners 1 2 3/26/2025 2 Serving on the Planning CommissionCity of Cupertino – March 25,2025 Serving on the Planning CommissionCity of Cupertino – March 25,2025 Land Use Regulation •Arose from “good government” movements as a response to unsanitary urban conditions •Embodied desire to rein in private market excesses through government regulation •Based on local government’s Police Power: health, safety and welfare Serving on the Planning CommissionCity of Cupertino – March 25,2025 Serving on the Planning CommissionCity of Cupertino – March 25,2025 •1909 Los Angeles imposes first zoning ordinance limiting industrial uses (not comprehensive) •1916 New York imposes first comprehensive zoning ordinance •1922 Standard State Zoning Enabling Act (SZEA) •1926 Euclid v. Ambler – upholds constitutionality of zoning Key Milestones -- Nationwide 3 4 3/26/2025 3 Serving on the Planning CommissionCity of Cupertino – March 25,2025 Serving on the Planning CommissionCity of Cupertino – March 25,2025 Land Use Regulation Today •Only two plan types are defined in California law: •General Plans lay out a jurisdiction's future development plans through a series of policy statements in text and map form •Specific Plans are a special set of development standards that apply to a particular geographical area •Zoning provides detailed land use and design regulation. •Other planning documents include Master Plans, Area Plans, Vision Plans, etc., but these are not defined in the law. Serving on the Planning CommissionCity of Cupertino – March 25,2025 Serving on the Planning CommissionCity of Cupertino – March 25,2025 Policy Plans and Regulations Subdivision Maps Develop‐ ment Permit Conditional Use Permits Variances Capital Improve‐ ments GENERAL PLAN Specific Plans and Related Documents Coastal Plans Zoning Design Guidelines Long-Term More General Short-Term More Detailed 5 6 3/26/2025 4 Serving on the Planning CommissionCity of Cupertino – March 25,2025 Serving on the Planning CommissionCity of Cupertino – March 25,2025 General Plans •Bedrock of California planning. •Required by State Law •The “constitution” for planning, development, and conservation •Provides long‐range vision (20 to 30 year horizon) •Basis for local land use decisions and other policies •Identifies important community issues •Sets the ground rules Serving on the Planning CommissionCity of Cupertino – March 25,2025 Serving on the Planning CommissionCity of Cupertino – March 25,2025 Cupertino General Plan Elements HOUSING MOBILITYLAND USE CONSERVATION OPEN SPACE NOISE SAFETY PUBLIC INFRASTRUCTURE ENVIRONMENTAL RESOURCES AND SUSTAINABILITY HEALTH AND SAFETY Required Elements Optional Element RECREATION AND COMMUNITY SVCS 7 8 3/26/2025 5 Serving on the Planning CommissionCity of Cupertino – March 25,2025 Serving on the Planning CommissionCity of Cupertino – March 25,2025 Cupertino General Plan Organization GOAL (desired outcome) Policy (statement to guide action) Strategy (specific task) Serving on the Planning CommissionCity of Cupertino – March 25,2025 Serving on the Planning CommissionCity of Cupertino – March 25,2025 Cupertino General Community Form Diagram 9 10 3/26/2025 6 Serving on the Planning CommissionCity of Cupertino – March 25,2025 Serving on the Planning CommissionCity of Cupertino – March 25,2025 Cupertino General Plan Land Use Map Serving on the Planning CommissionCity of Cupertino – March 25,2025 Serving on the Planning CommissionCity of Cupertino – March 25,2025 Cupertino General Plan Circulation Network 11 12 3/26/2025 7 Serving on the Planning CommissionCity of Cupertino – March 25,2025 Serving on the Planning CommissionCity of Cupertino – March 25,2025 Housing Element •Updated based on schedule in State law (8 years) •Certified by the State’s Department of Housing and Community Development (HCD) •Annual Progress Report to the State on implementation •Key Required Contents: •Regional Housing Needs Assessment (RHNA) Housing need by income category •Specific sites zoned for housing at appropriate densities •Policies to facilitate housing development •Actions to remove barriers to housing production Serving on the Planning CommissionCity of Cupertino – March 25,2025 Serving on the Planning CommissionCity of Cupertino – March 25,2025 Other Cupertino Planning Documents •Heart of the City Specific Plan (first adopted 1995) •West Stevens Creek Blvd •Crossroads •Central Stevens Creek Blvd •City Center •East Stevens Creek Blvd »North and South Vallco Area Planning Documents •South Vallco Master Plan (2008) •South Vallco Connectivity Plan (2014) •North Vallco Park Master Plan (2007) –not adopted, advisory only »North De Anza Blvd Conceptual Plan (1976) »South De Anza Blvd Conceptual Plan (1985) »South Sunnyvale‐Saratoga Conceptual Zoning Plan (1981) »Wireless Facilities Master Plan (2003) »Monta Vista Design Guidelines (1978) 13 14 3/26/2025 8 Serving on the Planning CommissionCity of Cupertino – March 25,2025 Serving on the Planning CommissionCity of Cupertino – March 25,2025 Zoning •Ordinance that implements and is consistent with General Plan policies •Prescribes allowable land uses and development standards including: Building uses. Building size (height, lot coverage and setbacks). Landscaping. Signs and billboards. Parking requirements. Other performance standards. Serving on the Planning CommissionCity of Cupertino – March 25,2025 Serving on the Planning CommissionCity of Cupertino – March 25,2025 Zoning •Traditional “Euclidean” Zoning •Based on identification and separation of uses. •Focuses on: Uses Intensity Setbacks Less emphasis on building form 15 16 3/26/2025 9 Serving on the Planning CommissionCity of Cupertino – March 25,2025 Serving on the Planning CommissionCity of Cupertino – March 25,2025 •Focuses on: •Building design and mass. •Building scale, type and context. •Relationship of buildings to public space. •Design of streets and public realm. •Key Components •Building form. •Building frontage. •Building type. •Roadways. •Public spaces. •Architectural detail. Form Based Zoning Serving on the Planning CommissionCity of Cupertino – March 25,2025 Serving on the Planning CommissionCity of Cupertino – March 25,2025 Goals •Inform decision‐makers about environmental effects. •Identify ways to avoid environmental damage. •Prevent avoidable environmental damage. •Disclose to the public, why a project is needed, even if it results in environmental damage. California Environmental Quality Act (CEQA) 17 18 3/26/2025 10 Serving on the Planning CommissionCity of Cupertino – March 25,2025 Serving on the Planning CommissionCity of Cupertino – March 25,2025 Types of CEQA Documents •Exemption •Available when project meets one of many criteria found in State law. •Recent San Diego court case suggests must be used if available. •Negative Declaration (ND) •If project found to have no significant effect on the environment. •Mitigated Negative Declaration (MND) •Specifies revisions to project plans that can avoid or mitigate effects. •Environmental Impact Report (EIR) •If project would have significant effects that cannot be eliminated through redesign or mitigation. Serving on the Planning CommissionCity of Cupertino – March 25,2025 Serving on the Planning CommissionCity of Cupertino – March 25,2025 •Long Range Planning (Legislative Function): •Creation and Amendment of Plans and Regulations •Current Planning (Adjudicatory Function): •CEQA Document adoption •Project Review •Project Approval •Generally, for discretionary projects only. •For ministerial projects, only review of Objective Design Standards (ODS). •Must be based on adopted plans and regulations. Role of the Planning Commission Andy Abeyta/The Desert Sun 19 20 3/26/2025 11 Serving on the Planning CommissionCity of Cupertino – March 25,2025 Serving on the Planning CommissionCity of Cupertino – March 25,2025 Thanks to Seema Patel, City of San Mateo Planning Commission, for the following slides Role of the Planning Commission Andy Abeyta/The Desert Sun Serving on the Planning CommissionCity of Cupertino – March 25,2025 Follow the rules. Be mindful of the Brown Act. Be mindful of due process. Parliamentary procedures are your friend. Take trainings and file forms in a timely manner. State law is not optional. 21 22 3/26/2025 12 Serving on the Planning CommissionCity of Cupertino – March 25,2025 Always be prepared. Review the agenda materials. Visit the site (if applicable). Meet with the applicant (if you’d like). Meet with residents and community groups (if you’d like). …but don’t forget the Brown Act & due process. Serving on the Planning CommissionCity of Cupertino – March 25,2025 Triage large packets. Staff report. Technical reports. Design drawings. Other materials. Public comment. 23 24 3/26/2025 13 Serving on the Planning CommissionCity of Cupertino – March 25,2025 Set staff up for success. Ask clarifying questions in advance. Raise concerns in advance. Be mindful of the burden of your requests. Direct communication through liaison. Serving on the Planning CommissionCity of Cupertino – March 25,2025 Leave personal opinion out of decision making. Base findings on City regulations. Be objective. Be data driven. Provide clear and solutions‐oriented feedback. 25 26 3/26/2025 14 Serving on the Planning CommissionCity of Cupertino – March 25,2025 Serving on the Planning Commission: An Overview City of Cupertino | March 25, 2025 California’s Housing Laws Barbara E. Kautz Goldfarb & Lipman LLP City of Cupertino Planning Commission Meeting March 25, 2025 27 28 3/26/2025 15 Presentation Overview •Introduction: State Housing Policy •Housing Element and ‘By Right’ Approvals •Key Laws Affecting Application and Process •Density Bonuses •The Builder’s Remedy •Ministerial Approvals: SB 35, AB 2011, ADUs, SB 9, SB 4, and Others •Litigation, HCD, and the Courts 29 State Housing Policy 30 29 30 3/26/2025 16 Making It Hard to Deny Housing Projects “The Legislature’s intent in enacting this section in 1982 and in expanding its provisions since then was to significantly increase the approval & construction of new housing for all economic segments of California’s communities by meaningfully and effectively curbing the capability of local governments to deny, reduce the density of, or render infeasible housing development projects. This intent has not been fulfilled.” 31 Housing Element and ‘By Right’ Approval 32 31 32 3/26/2025 17 Sixth Cycle Regional Housing Needs Assessment •RHNA MUCH higher this cycle •Examples: •SCAG: +226% •SACOG: +46% •SANDAG: +6% •ABAG: +150% 33 Sixth Cycle Housing Element •Cupertino RHNA increased from 1,064 to 4,588 units. Required to upzone sites to create capacity for 3,237 more units. •Finally approved by HCD on September 4, 2024 after all rezoning completed •Contains 48 programs with strict timelines for completion. HCD may withdraw approval, or advocates may file suit, if City does not complete programs. 34 33 34 3/26/2025 18 •Eligibility: •20% affordable to lower income households •No subdivision •Then: •NO CEQA •ONLY design review based on objective standards. Each Upzoned and “Reused Site” is Eligible for ‘By Right’ Approval 35 Key Laws Affecting Application and Process 36 35 36 3/26/2025 19 Preliminary Applications (“SB 330 Applications”) “Preliminary application” freezes development standards as of date all required info was submitted •Consists of an abbreviated planning application with minimal information •But project must meet these timelines: •Project application must be filed within 180 days •Applicant must complete application within 90 days of receiving incomplete letter [subject of current litigation] BUT: Conditions and ordinances may be applied to mitigate environmental impacts 37 Other Key Processing Provisions •Once complete, staff must notify applicant in short time (30 or 60 days) if there are any “inconsistencies” – or “deemed consistent” with all City standards •If staff determines consistency, the project is deemed consistent even if Planning Commission/City Council disagrees 38 37 38 3/26/2025 20 Five-Meeting Limit Project limited to 5 public meetings organized by City •Exceptions: •Meetings held before application is complete. •Project not consistent with objective standards. •Builder’s Remedy projects now considered consistent with objective standards. •Projects that require legislative approvals. •Additional meetings required by CEQA (such as a scoping hearing). •Meetings not conducted by the City. 39 Denial or reduction in density only if: •Project doesn’t comply with “objective standards” OR •Results in “specific adverse impact” on public health & safety •A “significant, quantifiable, direct, and unavoidable impact, based on objective, identified, written public health or safety standards”that can’t be mitigated Still subject to review under CEQA unless eligible for an exemption Housing Accountability Act: Key Provisions 40 39 40 3/26/2025 21 Density Bonuses 41 Density Bonus Law •Eligible project: 5% to 100% affordable housing •Eligible projects entitled to receive: •A density bonus [20 – 100%, or unlimited]; •1 – 7 “incentives / concessions”[reduce costs] •Unlimited waivers of development standards •Reduced parking requirements. •Density Bonus project = consistent with City standards 42 41 42 3/26/2025 22 •Entitled to consider the HIGHEST density as “base density” •Example: General Plan and zoning allows 20 to 60 units per acre. “Base density” is 60 units per acre. Could receive 100% density bonus and achieve 120 units per acre. Density Bonus law 43 Waivers and Concessions •Waivers : modifications of development standards (height, setbacks, open space, design standards); must be provided for project “as designed” •Concessions: modifications to standards that result in “identifiable and actual cost reductions” to provide affordable housing •NOT required to waive development fees or dedication requirements 44 43 44 3/26/2025 23 Waivers and Concessions Strict standards for denial Both: •“Specific, adverse health or safety impact” •Contrary to state or federal law Concessions: •Does not result in identifiable and actual cost reductions Waivers: •Adverse impact on real property on California Historic Register 45 Density Bonus Law •Inclusionary units can qualify project for density bonus (Latino Unidos v. County of Napa) •Example: •City requires 15% to 20% lower or moderate income units in projects with 5 or more units •All of these projects are eligible for a density bonus (plus parking reductions, one or more concessions, and unlimited waivers) 46 45 46 3/26/2025 24 47https://www.hcd.ca.gov/policy-research/plans- The Builder’s Remedy 48 47 48 3/26/2025 25 Key Provisions Applies to “affordable” projects with: •13% of base density affordable to low‐income households; or •10% to very low income; or •7% to extremely low income; or •Project with 10 or fewer units; on site less than 1 acre; at 10 du/A or more 49 The Builder’s Remedy Provision Additional finding to deny “affordable” projects: •City meeting RHNA numbers; •Specific adverse impact to public health and safety; •Deny to comply with state or federal law; •Proposed on agricultural land or water/sewer inadequate, OR •Inconsistent with Zoning Ordinance & GP land use designation; BUT must have a housing element in substantial conformance with state law, and not on a site designated in housing element for lower or moderate income housing if consistent with housing element density. 50 49 50 3/26/2025 26 City without Housing Element substantially compliant with state law cannot deny, or condition to infeasibility, qualifying “housing development projects” based on lack of conformance with local plans Proposed projects can be non- compliant with general plan and zoning Builder’s Remedy 51 New Legislation: Key Provisions •Base density in Cupertino is greatest of: •45 du/acre •3x maximum density (e.g. 90 du/acre if max density is 30 du/acre) •Density consistent with housing element •Plus 35 du/acre in high opportunity areas •At least 80 units/acre throughout Cupertino •But Cupertino projects do not exceed this density •May be doubled under density bonus law 52 51 52 3/26/2025 27 Key Provisions •Very important for City to maintain HCD approval of housing element •HCD can revoke approval with no notice 53 Ministerial Approvals: SB 35, AB 2011, ADUs, SB 9, SB 4, and Others 54 53 54 3/26/2025 28 •Discretionary – •Requires judgement, deliberation and decision making •Ministerial – •Exercising no personal judgement •Project review and approval limited to whether it meets agency’s objective standards •Commission may never see 55 Discretionary v. Ministerial Defined •SB 35 – Adopted in 2017: streamlined approval •ADUs – Starting in 2017 must be ministerial •SB 9 – Adopted in 2021: 4 units on single-family lots •AB 2011 – Adopted in 2022: housing in commercial areas •SB 4 (YIGBY) – Adopted in 2023: housing on religious/university sites •AB 684 – Adopted in 2023: approval of subdivision maps for 10 or fewer units on 5 acres or less, or 1.5 acres or less in single-family zones 56 Major Ministerial Approvals 55 56 3/26/2025 29 SB 35 Projects (“Streamlined Review Process”) Qualifying Projects: •Multifamily residential with 50% lower income in Cupertino •2/3 residential square footage •General plan or zoning allows residential or mixed use •No housing occupied by tenants within last 10 years •More than 10 units = prevailing wages •Consistent with objective standards; but can request density bonus waivers if not 57 Residential Development in Commercial Zones AB 2011 and SB 6 allow multi-family residential development where it may not have been permitted previously: •Applies in zones where commercial, retail or parking are principally permitted uses •AB 2011: SB 35 timelines •SB 6 allows SB 35 to be used on sites zoned commercial, with only 50% residential 58 57 58 3/26/2025 30 Implications for Cupertino •City is required to accept and approve plans that conform with state law •Even if inconsistent with City’s adopted policies •Regardless of City or community concerns 59 Litigation, HCD, and the Courts 60 59 60 3/26/2025 31 HCD and Attorney General Enforcement •HCD Housing Accountability Unit with at least 25 staff •Broader and broader authority •Letters of Technical Advice •Notices of Violation •Referral to Attorney General •Attorney General has 12-person strike force that acts independently 61 Active Third-Party Litigants •Have sued many cities (Californians for Homeownership, YIMBY, California Housing Defense Fund) on housing elements, builder’s remedy, HAA, and other issues •CHDF sued Cupertino when housing element was not adopted •Often join in, or are plaintiffs, in litigation related to denials of housing development 62 61 62 3/26/2025 32 •HCD has broad authority to enforce most housing laws and refer cities to the Attorney General •In particular, HCD may “de-certify” a housing element if an “action or inaction” is inconsistent with housing element •Effective January 1, 2025: housing elements are only consistent with state law if a court or HCD says so HCD Authority 63 •AG may intervene in most housing cases; or may bring suit itself •If fail to approve project after court order, penalty of up to $10,000/unit •If HCD or the AG sue regarding housing element or ministerial approval, possible penalty of $10,000/month from date of violation if arbitrary or unlawful Attorney General Involvement and Civil Fines 64 63 64 3/26/2025 33 Housing Cases in General •Courts: •Generally, very pro-housing •Uphold housing approvals •Overturn denials •City risks: •Significant attorneys fees exposure •High defense costs •Possible damages 65 What’s Left for Planning Commissioners Reviewing Housing Projects? 66 65 66 3/26/2025 34 •May use subjective standards to apply conditions of approval if standards adopted before January 1, 2020 and don’t effectively reduce the density or deny the project (and if no specific restriction on use of these standards) •Also: often still subject to CEQA review Remaining Discretion on Some Housing Projects 67 Q & A 68 67 68