HomeMy WebLinkAbout6.1 Proposed Amendment to East Ranch Vesting Tentative Tract Map Conditions of Approval Pursuant to the Housing Accountability ActSTAFF REPORT
CITY COUNCIL
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Agenda Item 6.1
DATE:May 3, 2022
TO:Honorable Mayor and City Councilmembers
FROM:Linda Smith, City Manager
SUBJECT:Proposed Amendment to East Ranch Vesting Tentative Tract Map Conditionsof Approval Pursuant to the Housing Accountability Act (PLPA-2020-00028)Prepared by:Amy Million,Principal Planner
EXECUTIVE SUMMARY:The Applicant, Trumark Companies, submitted a request to modify Condition of Approval Nos. 6 and 7 of Resolution No. 140-21 adopted by the City Council on December 7, 2021,approving Vesting Tentative Tract Map No. 8563 and a Heritage Tree Removal Permit for the East Ranch project and to correspondingly amend the text of Ordinance No. 11-21 that had been incorporatedby reference into Resolution No. 140-21. The request was submitted pursuant to the Housing Accountability Act (Government Code Section 65589.5)and proposes to amend these conditions to comply with the objective standards of the City’s Inclusionary Zoning Regulations. The East Ranch project includes development of a 165.5-acre site with a 573-unit residential project consisting of six neighborhoods, two neighborhood parks totaling 11.5 acres, and a two-acre Public/Semi-Public site.
STAFF RECOMMENDATION:Conduct a public hearing, deliberate,and adopt the Resolution Approving an Amendment to Condition of Approval Nos. 6 and 7 of Resolution No. 140-21 Approving Vesting Tentative Tract Map No. 8563 and a Heritage Tree Removal Permit for the East Ranch Project.
FINANCIAL IMPACT:The costs associated with processing this request are borne by the Applicant.
DESCRIPTION:The 165.5-acre East Ranch project site (formerly referred to as the Croak Property) is an undeveloped parcel located within the Fallon Village area of the Eastern Dublin Specific Plan (EDSP). The site is located north of Interstate 580, east of Fallon Road and the Jordan Ranch development, south of the Positano development, and adjacent to the City’s eastern city limit as
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shown in Figure 1 below. Figure 1. Vicinity Map
BackgroundOn December 7, 2021, the City Council introduced a Planned Development Ordinance and adoptedResolution No. 140-21 approving Vesting Tentative Tract Map No. 8563 and a Heritage Tree Removal Permit for the proposed East Ranch project. On December 21, 2021, the City Council adopted Ordinance No. 11-21 approving a Planned Development Rezone with a Stage 2 Development Plan. The approved East Ranch project includes 573 residential units in six neighborhoods, two public parks with one 5.5-acre park at the northwest corner of the site and one 6.0-acre park near the project’s main entry east of Croak Road and north of Central Parkway, a two-acre Public/Semi-Public site, and 6.8 acres of open space (refer to Figure 2).
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Figure 2. East Ranch Illustrative Site Plan
On December 23, 2021, pursuant to Elections Code Section 9238, subd. (b)(2)(B), a proposed summary of a referendum against Ordinance No. 11-21 was submitted. To qualify, the referendum petition needed to contain signatures of at least 10% of the registered Dublin voters or a minimum of 3,439 signatures. The referendum petition was determined to be sufficient for filing and was delivered to the Alameda County Registrar of Voters on January 27, 2022 for signature examination. The Registrar of Voters determined that the petition contained the minimum number of valid signatures necessary to qualify the referendum for consideration by City Council. On March 1, 2022, the City Council accepted the City Clerk’s Certificate of Petition certifying the sufficiency of the referendum petition against Ordinance No. 11-21 and adopted Ordinance No. 02-22 repealing Ordinance No. 11-21. The Housing Accountability Act (HAA) (Government Code Section 65589.5) expressly precludes the City from requiring a rezoning ordinance when a project is consistent with the general plan and the zoning is inconsistent with the general plan, as is the case here. Resolution No. 140-21, which approved Vesting Tentative Tract Map No. 8563, was not subject to the referendum and, therefore, remains in effect. Project’s Relationship to State Housing Laws and PolicyThe Applicant designed the project under state housing laws to limit the City’s discretion on the project. The HAA, the Housing Crisis Act of 2019 (Senate Bill 330), and various other state laws prevent or restrict the ability to deny projects that are consistent with applicable, objective standards in effect at a time when the application is deemed complete. The East Ranch project is designed to be consistent with the applicable General Plan and Specific Plan designations, the applicable zoning regulations, and other policies, as a means of limiting the City’s discretion. The one clear area where the City Council had significant discretion was on the Applicant’s proposed alternative method of complying with the Inclusionary Zoning Regulations. The alternative
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method of compliance was approved by Resolution No. 140-21 and included in Condition of Approval Nos. 6 and 7. Current RequestOn April 22, 2022, the Applicant, Trumark Companies, submitted a request to modify Condition of Approval Nos. 6 and 7 of Resolution No. 140-21 approving Vesting Tentative Tract Map No. 8563 for the East Ranch project and to correspondingly amend the text of Ordinance No. 11-21 that had been incorporated by reference into Resolution No. 140-21. The Applicant’s letter requesting the amendment to modify the conditions of approval is included as Attachment 2. The Applicant’s request was submitted pursuant to the HAA and proposes to amend these conditions of approval to comply with the objective standards of the City’s Inclusionary Zoning Regulations. Specifically, the Applicant’s changes would modify the affordable housing requirements to be those that it had a right to pursue without City Council approval. The HAA prohibits the City from denying applications for such projects absent an immediate threat to public health or safety that cannot be mitigated, as determined by objective standards that were in place when the application was submitted. In essence, the HAA provides that once a city designates a site for housing in its General Plan, it must allow that housing to be developed except in very limited circumstances involving immediate threats to public health and safety. Because none of the exceptions are present here, approval of this application is mandated by the HAA. The requested modifications will replace the affordable housing program previously approved by the City Council when it adopted Resolution No. 140-21, with an affordable housing program that meets the objective standards of the City’s Inclusionary Zoning Regulations in Dublin Municipal Code Chapter 8.68. The objective standards require all new residential development projects of 20 units or more to construct 12.5% of the total number of units within the development as affordable units (72 units) and allows the Applicant to pay a fee in lieu of constructing up to 40% of the affordable units that the developer would otherwise be required to construct. The table below provides a comparison of Condition of Approval Nos. 6 and 7 as approved by Resolution No. 140-21 and the proposed amended language based on the Applicant’s request. Condition of Approval As Approved Proposed Amendment6Dedication of Parcel P to Affordable Housing Developer. If the proposed land dedication of Parcel P (Public/Semi Public Parcel)is approved as part of the Inclusionary Zoning Regulations (Planned Development Stage 2 Development Plan), the developer shall provide proof that Parcel P has been deeded to an affordable housing developer.
Parcel P Reference on Map. All sheets of the Vesting Tentative Map for Tract 8563 shall be deemed to refer to Parcel P as the (Public/Semi Public Parcel) with the party identified as the proposed owner and for maintenance to be Trumark or its successor.
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Condition of Approval As Approved Proposed Amendment7Inclusionary Housing.The proposed project shall comply with the City of Dublin Inclusionary Ordinance as detailed in the Planned Development.
Inclusionary Housing. The proposed project shall comply with the City of Dublin Inclusionary Ordinance by conforming to the objective standards in that ordinance as follows:The inclusionary housing requirement is 12.5%of the total number of units within the development, which equals 72 (71.6) units and shall be satisfied as follows:
•In-Lieu Fee: 40% of the inclusionary housing requirement (29 units) shall be satisfied via payment of an “In-Lieu Fee” as provided by the City’s Impact Fee Schedule.
•On-site Below Market Rate Units: 60% of the inclusionary housing requirement (43 units) shall be developed on site, with 40%of those (17 units) for low-income households and 60%of those (26 units) for moderate-income households.
•Below Market Rate Units shall be dispersed throughout all the neighborhoods, in rough proportion to the number of market rate units in each neighborhood and constructed concurrently with the market rate units in the same neighborhood.
•Execution of an agreement imposing appropriate resale controls and/or rental restrictions on the affordable units shall be requiredin accordance with DMC Chapter 8.68.
•The Applicant/Developer shall implement and conform to all objective requirements of DMC Chapter 8.68.
ENVIRONMENTAL REVIEW:Pursuant to the requirements of the California Environmental Quality Act (CEQA), the City determined that the East Ranch project was exempt from further environmental review under Government Code Section 65457 and CEQA Guidelines Section 15182(c), which exempts residential projects that are consistent with a specific plan for which an EIR has been certified,when it adopted Resolution No. 140-21. A Notice of Exemption was filed with the Alameda County Clerk on December 9, 2021, following approval of Vesting Tentative Tract Map No. 8563. The proposed requests to modify Condition of Approval Nos. 6 and 7 and to correspondingly amend the text of Ordinance No. 11-21 incorporated by reference are limited to deed-restricting the sales price of an additional 25 housing units and eliminating the requirement that Parcel P be dedicated to an affordable housing developer and, therefore, the project is exempt from further CEQA reviewunder Government Code Section 65457 and CEQA Guidelines Section 15182(c). The proposed amendments to the conditions of the approved tentative map qualify for the exemption because it is a residential project consistent with the Eastern Dublin Specific Plan for which an environmental
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impact report has been certified after January 1, 1980. The certified EIRs and other environmental review documents that are applicable to this project include the Eastern Dublin General Plan Amendment and Specific Plan EIR (1993) as supplemented by the East Dublin Properties Stage I Development Plan and Annexation Supplemental EIR (2002) and the Fallon Village Supplemental EIR (2005) and the East Ranch CEQA Analysis in Support of Specific Plan Exemption (November 4, 2021) (collectively, “CEQA Documents”). None of the events under Public Resources Code Section 21166 have occurred. In particular, the amendments to the tentative map conditions to impose affordability restrictions on additional housing units and eliminate the dedication requirement under the existing map approval do not increase the number of approved housing units and does not constitute a substantial change in the Project resulting in new or substantially more severe significant environmental impacts than described in the CEQA Documents.
NOTICING REQUIREMENTS/PUBLIC OUTREACH:In accordance with State law, a public notice was mailed to all property owners and occupants within 300 feet of the proposed project to advertise the project and the upcoming public hearing. A public hearing notice also was published in the East Bay Times and posted at several locations throughout the City. The project is also included on the City’s development projects webpage. A copy of this Staff Report has been provided to the Applicant and the City Council Agenda was posted.
ATTACHMENTS:1) Resolution Approving an Amendment to Condition of Approval Nos. 6 and 7 of Resolution No. 140-21 Approving Vesting Tentative Tract Map No. 8563 and a Heritage Tree Removal Permit for the East Ranch Project2) Trumark Letter Requesting Modifications to Conditions of Approval
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Attachment 1
Reso. No. XX-22, Item X.X, Adopted XX/XX/2022 Page 1 of 4
RESOLUTION NO. xx-22
A RESOLUTION OF THE CITY COUNCIL
OF THE CITY OF DUBLIN
APPROVING AN AMENDMENT TO CONDITION OF APPROVAL NOS. 6 AND 7 OF RESOLUTION
NO. 140-21 APPROVING VESTING TENTATIVE TRACT MAP NO. 8563 AND A HERITAGE TREE
REMOVAL PERMIT RELATED TO THE EAST RANCH PROJECT
PLPA 2020-00028
(APNS 905-0002-001-01 AND 905-0002-002-00)
WHEREAS,the East Ranch project is located on a 165.5-acre in the Eastern Dublin Specific
Plan area, directly east of the Jordan Ranch development and south of Positano development,
straddling the existing Croak Road; and
WHEREAS,following a public hearing on November 9, 2021, the Planning Commission adopted
Resolution No. 21-08, recommending approval of the East Ranch project, which resolution is
incorporated herein by reference and available for review at City Hall during normal business hours;
and
WHEREAS, on December 7, 2021, the City Council adopted Resolution No. 140-21 approving
Vesting Tentative Tract Map No. 8563 and a Heritage Tree Removal Permit related to the East Ranch
project; and
WHEREAS, on December 21, 2021, the City Council adopted Ordinance No. 11-21 amending
the Zoning Map and approving a Planned Development Zoning District with related Stage 2
Development Plan and CEQA Findings for the East Ranch Project, PLPA-2020-00028 (APNs 905-
0002-001-01 and 905-00020002-00); and
WHEREAS,on December 23, 2021, pursuant to Elections Code Section 9238, subd. (b)(2)(B),
a proposed summary of a referendum against Ordinance No. 11-21 was submitted. To qualify, the
referendum petition needed to contain signatures of at least 10% of the registered Dublin voters or a
minimum of 3,439 signatures. The referendum petition was determined to be sufficient for filing and on
January 27, 2022, the referendum petition was delivered to the Alameda County Registrar of Voters for
signature examination. The Registrar of Voters determined that the petition contained the minimum
number of valid signatures necessary to qualify the referendum for consideration by City Council; and
WHEREAS,on March 1, 2022, the City Council adopted Ordinance No. 2-22 repealing
Ordinance No. 11-21, which did not alter approval of Resolution No 140-21 approving Vesting Tentative
Tract Map No. 8563 and a Heritage Tree Removal Permit for the East Ranch project; and
WHEREAS,on April 22, 2022, Perkins Coie on behalf of the Applicant, Trumark Companies,
submitted a request to modify Condition of Approval Nos. 6 and 7 of Resolution No. 140-21; and
WHEREAS,the request was submitted pursuant to the Housing Accountability Act (HAA)
(Government Code Section 65589.5) and proposes to amend these conditions of approval to comply
with the objective standards of the City’s Inclusionary Zoning Regulations; and
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Reso. No. XX-22, Item X.X, Adopted XX/XX/2022 Page 2 of 4
WHEREAS,Ordinance No. 11-21 was repealed in response to a referendum petition; however,
the HAA expressly precludes the City from requiring a rezoning ordinance when a project is consistent
with the general plan and the zoning is inconsistent with the general plan, as is the case here; and
WHEREAS, the request to modify Condition of Approval Nos. 6 and 7 of Resolution No. 140-21,
does not materially change Vesting Tentative Tract Map No. 8563 and, therefore, does not require a
recommendation by the Planning Commission; and
WHEREAS,the California Environmental Quality Act (CEQA), together with the CEQA
Guidelines and City of Dublin CEQA Guidelines and Procedures require that certain projects be
reviewed for environmental impacts and that environmental documents be prepared; and
WHEREAS, prior CEQA analysis for the project area includes: 1) the Eastern Dublin General
Plan Amendment and Specific Plan EIR (1993); 2) the East Dublin Properties Stage 1 Development
Plan and Annexation Supplemental EIR (2002); and 3) the Fallon Village Supplemental EIR (2005).
Collectively, these three environmental review documents are referred to as the “EDSP EIRs;” and
WHEREAS, in compliance with CEQA, the City prepared a CEQA Analysis in Support of Specific
Plan Exemption for the East Ranch project; and
WHEREAS, the amendment to the conditions of approval of Resolution No. 140-21 and the
corresponding amendment to the text of Ordinance No. 11-21 incorporated by reference is found to be
exempt from CEQA pursuant to Government Code Section 65457 and CEQA Guidelines Section
15182(c), which exempts residential projects that are consistent with a specific plan for which an EIR
has been certified. The amendment is limited to deed-restricting the sales price of an additional 25
housing units and eliminating the requirement that Parcel P be dedicated to an affordable housing
developer and, therefore, the project is exempt from further CEQA review under Government Code
Section 65457 and CEQA Guidelines Section 15182(c). The amendments qualify for the exemption
because it is a residential project consistent with the Eastern Dublin Specific Plan for which an
environmental impact report has been certified after January 1, 1980. The certified EIRs and other
environmental review documents that are applicable to this project include the Eastern Dublin General
Plan Amendment and Specific Plan EIR (1993) as supplemented by the East Dublin Properties Stage
I Development Plan and Annexation Supplemental EIR (2002) and the Fallon Village Supplemental
EIR (2005) and the East Ranch CEQA Analysis in Support of Specific Plan Exemption (November 4,
2021) (collectively, “CEQA Documents”). None of the events under Public Resources Code Section
21166 have occurred. In particular, the amendments to the tentative map conditions to impose
affordability restrictions on additional housing units and eliminate the dedication requirement under the
existing map approval do not increase the number of approved housing units and do not constitute a
substantial change in the Project resulting in new or substantially more severe significant environmental
impacts than described in the CEQA Documents; and
WHEREAS,a Staff Report, dated May 3, 2022, and incorporated herein by reference, described
and analyzed the proposed modifications to Condition of Approval Nos. 6 and 7 for the City Council;
and
WHEREAS,on May 3, 2022, the City Council held a duly noticed public hearing on the proposed
modifications to Condition of Approval Nos. 6 and 7 at which time all interested parties had the
opportunity to be heard; and
WHEREAS, the City Council did hear and use independent judgment and considered all said
reports, recommendations, and testimony hereinabove set forth.
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Reso. No. XX-22, Item X.X, Adopted XX/XX/2022 Page 3 of 4
NOW, THEREFORE, BE IT RESOLVED that the foregoing recitals are true and correct and
made a part of this Resolution.
BE IT FURTHER RESOLVED that the City Council of the City of Dublin does hereby approve
an amendment to Condition of Approval Nos. 6 and 7 of Resolution No. 140-21 approving the Vesting
Tentative Map Tract No. 8563 and Heritage Tree Removal Permit as stated below. All other conditions
of Resolution No. 140-21 remain in effect.
CONDITIONS OF APPROVAL:
Unless stated otherwise, all Conditions of Approval shall be complied with prior to the issuance of
building permits or establishment of use and shall be subject to Planning Department review and
approval. The following codes represent those departments/agencies responsible for monitoring
compliance of the conditions of approval. [PL.] Planning, [B] Building, [PO] Police, [PW] Public Works
[P&CS] Parks & Community Services, [ADM] Administration/City Attorney, [FIN] Finance, [F] Alameda
County Fire Department, [DSR] Dublin San Ramon Services District, [CO] Alameda County Department
of Environmental Health, [Z7] Zone 7.
#CONDITION TEXT RESPON.
AGENCY
WHEN REQ’D
Prior to:
6. Parcel P Reference on Map. All sheets of the Vesting
Tentative Map for Tract 8563 shall be deemed to refer
to Parcel P as the (Public/Semi Public Parcel) with the
party identified as the proposed owner and for
maintenance to be Trumark or its successor.
PL, PW Approval of First
Neighborhood
Map
7. Inclusionary Housing. The proposed project shall
comply with the City of Dublin Inclusionary Ordinance
by conforming to the objective standards in that
ordinance as follows:
The inclusionary housing requirement is 12.5% of the
total number of units within the development, which
equals 72 (71.6) units and shall be satisfied as follows:
•In-Lieu Fee: 40% of the total number of units
within the development (29 units) shall be
satisfied via payment of an “In-Lieu Fee” as
provided by the City’s Impact Fee Schedule.
•On-site Below Market Rate Units: 60% of the
total number of units within the development (43
units) shall be developed on-site, with 40% of
those (17 units) for low-income households and
60% of those (26 units) for moderate-income
households.
•Below Market Rate Units shall be dispersed
throughout all the neighborhoods, in rough
proportion to the number of market rate units in
each neighborhood and constructed concurrently
with the market rate units in the same
neighborhood.
•Execution of an agreement imposing appropriate
PL On-going
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Reso. No. XX-22, Item X.X, Adopted XX/XX/2022 Page 4 of 4
BE IT FURTHER RESOLVED that the City Council of the City of Dublin does hereby amend
Section 4.9 of Ordinance 11-21, as that text is incorporated by reference into Resolution 140-21, to
reflect the text of modified condition 7 set forth above.
PASSED, APPROVED, AND ADOPTED this 3
rd day of May 2022 by the following vote:
AYES:
NOES:
ABSENT:
ABSTAIN:
______________________________
Mayor
ATTEST:
______________________________
City Clerk
resale controls and/or rental restrictions on the
affordable units shall be required in accordance
with DMC Chapter 8.68.
•The Applicant/Developer shall implement and
conform to all objective requirements of DMC
Chapter 8.68.
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156468021.7
Cecily Barclay
CBarclay@perkinscoie.com
D.+1.415.344.7117
F.+1.415.344.7317
April 22, 2022
Linda Smith
City Manager
City of Dublin
1000 Civic Plaza
Dublin, CA 94568
Re:East Ranch Project
HAA Application to Modify Conditions to the VTM for Tract 8563 to Meet the
Objective Standards of the City’s Inclusionary Zoning Regulations
Dear Ms. Smith:
On behalf of my client, Trumark Companies, I am requesting that the Council modify conditions
6 and 7 of the Vesting Tentative Map for Tract 8563 for the East Ranch Project, which map the
Council approved on December 7, 2021, pursuant to Resolution 140-21. In accordance with the
Housing Accountability Act, Trumark proposes to modify these conditions to comply with the
objective standards of the City’s Inclusionary Zoning Regulations. Those objective standards
require that the Project provide 12.5% affordability, and state that the requirement may be met
with in lieu fees for 40% of the affordable units,and construction of 60% of the affordable units
on site, as follows:
In-Lieu Fee: 40% (29 units) will be provided via a payment of an “In-Lieu Fee” as
provided by the City’s fee schedule.
On-site Below Market Rate Units: 60% (43 units) will be provided on site, with 40% (17
units) for low-income households and 60% (26 units) for moderate-income households.
A complete description of the requested modifications is set forth in Attachment A.
A.The Housing Accountability Act.
This application is submitted under the Housing Accountability Act (HAA), Government Code
section 65589.5. That section applies to projects that meet objective General Plan, zoning and
subdivision standards. The HAA prohibits a city from denying applications for such projects
absent an immediate threat to public health or safety that cannot be mitigated, as determined by
objective standards that were in place when the application was submitted. In essence, the
HAA provides that once a city designates a site for housing in its General Plan, it must allow
that housing to be developed except in very limited circumstances involving immediate threats
to public health and safety. Because none of the exceptions are present here, approval of this
application is mandated by the HAA.
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Linda Smith, City Manager
April 22, 2022
Page 2
156468021.7
B.The Modifications Are Proposed to Provide an Affordable Housing Program
that Complies with Objective Standards.
The modifications Trumark requests will replace the affordable housing program previously
approved by the Council when it adopted Resolution 140-21 on December 7, 2021,with an
affordable housing program that meets the objective standards of the City’s Inclusionary Zoning
Regulations in Chapter 8.68 of Title 8 of the Municipal Code. The objective standards require
12.5% affordability (72 units) and require that the City allow the applicant to pay in-lieu fees for
up to 40% of those affordable units.1
The modifications are consistent with the City’s response to FAQs regarding the East Ranch
Project, which state that “The key difference between the East Ranch project and a Housing
Accountability Act (HAA) project is that the HAA project would have to comply with the standard
affordable housing requirements under the City's zoning ordinance. Those standard
requirements would require the creation of 43 affordable, for sale units, and the payment of $6.3
million.”2
C.A New Stage 2 Plan Cannot Be Required.
The Project site has been designated for housing in the City’s General Plan for years,and
therefore qualifies for protection under the HAA. The development proposed by the Project has
been approved numerous times over a period stretching back to at least 2005, when the Council
adopted a General Plan and Eastern Dublin Specific Plan Amendment for the Fallon Village
area, along with a Stage 1 Development Plan. The General Plan, the Eastern Dublin Specific
Plan, the Fallon Ranch Stage 1 Development Plan, and the VTM for Tract 8563 all approve the
development proposed by the Project and none of those entitlements has been challenged.
As you know, Ordinance 11-21, which rezoned the Project site to include a Stage 2
Development Plan, was repealed in response to a referendum petition. However, the HAA
expressly precludes the City from requiring another rezoning ordinance to reenact a Stage 2
plan3. Moreover, no challenges were asserted to Resolution 140-21, which approved the VTM,
and the map was not made contingent upon Ordinance 11-21. Rather, the contents of
Ordinance 11-21 were incorporated by reference into Resolution 140-21, thus establishing all
relevant Project details. The subsequent repeal of Ordinance 11-21 does not affect the fact that
the text of Ordinance 11-21 remains incorporated by reference into Resolution 140-214.
1 Municipal Code §8.68.040(a)(“upon request of the applicant, the City Council shall permit the applicant
to pay a fee in lieu of constructing up to 40% of the affordable units that the developer would otherwise be
required to construct)(emphasis added).
2 https://www.dublin.ca.gov/EastRanchFAQ
3 Gov’t Code §65589.5(j)(4) states that a housing development project “shall not require a rezoning” if the
project is consistent with objective general plan standards.
4 This rule of law is long-standing and well established. See, e.g., Palermo v. Stockton Theaters, 32 Cal.
2d 53, 59 (1948); Gonzalez v. City of Norwalk, 17 Cal. App. 5th 1295, 1311 (2017).
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Linda Smith, City Manager
April 22, 2022
Page 3
156468021.7
D.No Additional Modifications to the VTM Are Required to Establish
Compliance with Objective Standards.
The HAA explains that “the local agency may require the proposed housing development project
to comply with the objective standards and criteria of the zoning which is consistent with the
general plan, however, the standards and criteria shall be applied to facilitate and accommodate
development at the density allowed on the site by the general plan and proposed by the
proposed housing development project.”5 For East Ranch, the Council already determined in
Resolution 140-21 that the Project complies with the General Plan, the East Dublin Specific
Plan and the Stage 1 Development Plan. Accordingly, compliance with those objective
standards is already established.
E.CEQA Review Is Limited and Simple.
When it adopted Resolution 140-21 on December 7, 2021, the Council determined that the
Project is exempt from CEQA under Government Code section 65457 and CEQA Guidelines
Section 15182(c)because it was consistent with the Eastern Dublin Specific Plan, for which an
EIR was certified, and that no circumstances requiring preparation of a supplemental or
subsequent EIR were present. The statute of limitations on those CEQA determinations expired
30 days later, and those determinations are now beyond challenge.
Since the only effect the modifications requested by Trumark will have is to deed-restrict the
sales price of an additional 25 housing units, and it has been only a few months since the
Council adopted Resolution 140-21,the Project remains exempt.6
F.Conclusion.
Trumark respectfully requests that the Council approve the modifications set forth in
Attachment A, as required the Housing Accountability Act.
Sincerely,
Cecily Barclay
cc:John Bakker, City Attorney
Tony Bosowski,Division President, Trumark Companies, LLC
John Willsie, General Counsel, Trumark Companies, LLC
5 Gov’t Code § 65589.5(j)(4).
6 See CEB, Practice Under the Environmental Quality Act, §19.30 (2d ed., 2022 Update) (“Further, the
date of a previous approval sets the cutoff date for consideration of events that might trigger the need for
further CEQA review once the statute of limitations has run on that approval.”)
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Linda Smith, City Manager
April 22, 2022
Page 4
156468021.7
ATTACHMENT A –TEXT OF MODIFICATIONS
(1) Modification to Condition 6:
6. Dedication of Parcel P Reference on Map to Affordable Housing
Developer. If the proposed land dedication of All sheets of the Vesting Tentative
Map for Tract 8563 shall be deemed to refer to Parcel P as the (Public/Semi
Public Parcel)with the party identified as the proposed owner and for
maintenance to be Trumark or its successor.is approved as part of the
Inclusionary Zoning Regulations (Planned Development Stage 2 Development
Plan), the developer shall provide proof that Parcel P has been deeded to an
affordable housing developer.
Responsible Agency: PL
When Req’d Prior to: Prior to approval of the first neighborhood final map.
(2) Modification to Condition 7:
7. Inclusionary Housing. The proposed project shall comply with the City of
Dublin Inclusionary Ordinance by conforming to the objective standards in that
ordinance as detailed in the Planned Development follows:
The inclusionary housing requirement is 12.5% affordability, which equals 72
(71.6) units and will be satisfied as follows:
•In-Lieu Fee: 40% (29 units) will be provided via a payment of an “In-Lieu
Fee” as provided by the City’s fee schedule..
•On-site Below Market Rate Units: 60% (43 units) will be provided on site,
with 40% (17 units) for low-income households and 60% (26 units) for
moderate-income households.
•Below Market Rate Units are to be dispersed throughout all the
neighborhoods, in rough proportion to the number of market rate units in
each neighborhood, and constructed concurrently with the market rate
units in the same neighborhood.
•Execution of an agreement imposing appropriate resale controls and/or
rental restrictions on the affordable units is required.
•The Applicant/Developer shall implement and conform to all objective
requirements of Chapter 8.68 of the Municipal Code.
Responsible Agency: PL
When Req’d Prior to: On-going.
(3) Modification to the Incorporated Development Plan:
Section 9 of the text of Ordinance 11-21, as that text is incorporated by reference
into Resolution 140-21, is modified to reflect the text of modified condition 7 set
forth above.
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Amendments to East RanchVesting Tentative Tract Map Conditions of ApprovalCity CouncilMay 3, 202244
Project Location45
Background•December 7, 2021 -Resolution No. 140-21 •December 21, 2021Ordinance No. 11-21•December 23, 2021Summary of Referendum •January 27, 2022Referendum Filed•March 1, 2022Ordinance No. 02-22346
Proposed Request•Housing Accountability Act•Resolution No. 140-21 (VTTM and HTRP)―Conditional of Approval Nos. 6 and 7―Inclusionary Housing•Ordinance No. 11-21 (PD Zoning District)―Section 4.9 reference to Resolution No. 140-21447
Condition of Approval No. 65As Approved Proposed AmendmentDedication of Parcel P to Affordable Housing Developer. If the proposed land dedication of Parcel P (Public/Semi Public Parcel) is approved as part of the Inclusionary Zoning Regulations (Planned Development Stage 2 Development Plan), the developer shall provide proof that Parcel P has been deeded to an affordable housing developer.Parcel P Reference on Map. All sheets of the Vesting Tentative Map for Tract 8563 shall be deemed to refer to Parcel P as the (Public/Semi Public Parcel) with the party identified as the proposed owner and for maintenance to be Trumark or its successor. 48
Condition of Approval No. 76As Approved Proposed AmendmentInclusionary Housing. The proposed project shall comply with the City of Dublin Inclusionary Ordinance as detailed in the Planned Development.Inclusionary Housing. The proposed project shall comply with the City of Dublin Inclusionary Ordinance by conforming to the objective standards in that ordinance as follows:The inclusionary housing requirement is 12.5 percent of the total number of units within the development, which equals 72 (71.6) units and shall be satisfied as follows:• In-Lieu Fee: 40 percent of the inclusionary housing requirement (29 units) shall be satisfied via payment of an “In-Lieu Fee” as provided by the City’s Impact Fee Schedule. • On-site Below Market Rate Units: 60 percent of the inclusionary housing requirement (43 units) shall be developed on site, with 40 percent of those (17 units) for low-income households and 60 percent of those (26 units) for moderate-income households.• Below Market Rate Units shall be dispersed throughout all the neighborhoods, in rough proportion to the number of market rate units in each neighborhood and constructed concurrently with the market rate units in the same neighborhood. • Execution of an agreement imposing appropriate resale controls and/or rental restrictions on the affordable units shall be required in accordance with DMC Chapter 8.68.• The Applicant/Developer shall implement and conform to all objective requirements of DMC Chapter 8.68.49
RecommendationConduct a public hearing, deliberate and adopt the Resolutionapproving an amendment to Condition of Approval Nos. 6 and 7 of Resolution No. 140-21 approving Vesting Tentative Tract Map No. 8563 and a Heritage Tree Removal Permit for the East Ranch Project.50
May 3, 2022
SB 343
Senate Bill 343 mandates supplemental materials
that have been received by the City Clerk’s office that
relate to an agenda item after the agenda packets
have been distributed to the City Council be available
to the public.
The attached documents were received in the
City Clerk’s office after distribution of the May 3,
2022, Regular City Council meeting agenda packet.
Item 6.1
51
STRUMWASSER & WOOCHER LLP
ATTORNEYS AT LAW
MICHAEL J. STRUMWASSER 10940 WILSHIRE BOULEVARD, SUITE 2000 TELEPHONE: (310) 576-1233
BRYCE A. GEE LOS ANGELES, CALIFORNIA 90024 FACSIMILE: (310) 319-0156
BEVERLY GROSSMAN PALMER WWW.STRUMWOOCH.COM
DALE K. LARSON
CAROLINE C. CHIAPPETTI FREDRIC D. WOOCHER
JULIA G. MICHEL † ANDREA SHERIDAN ORDIN
SALVADOR E. PÉREZ SENIOR COUNSEL
† Also admitted to practice in Washington
May 3, 2022
City of Dublin City Council
100 Civic Plaza
Dublin, CA 94568
Via hand delivery
Re: May 3, 2022 Agenda Item 6.1: Proposed Amendment to East Ranch Vesting
Tentative Tract Map Conditions of Approval Pursuant to the Housing
Accountability Act (PLPA-2020-00028)
To the Honorable City Council:
This firm writes on behalf of Dubliners Against Overdevelopment to bring the Council’s
attention to serious legal concerns presented by Agenda Item 6.1. The Council should not
approve the amendments to the Vesting Tentative Tract Map, because this would violate the one-
year bar on readoption of ordinances vacated after referendum, as well as the provisions of the
Dublin municipal code.
On December 7, 2021, the City Council approved Stage 2 Development Plan for
Trumark’s East Ranch project; a second reading was held and the ordinance was made final on
December 21, 2021. Citizens promptly launched a referendum campaign against Ordinance No.
11-21, gathering over 5,000 signatures within 30 days of residents expressing their frustration at
the continuing overdevelopment of the City and its impact on schools, traffic, and quality of life
for existing residents. This effort and the overwhelming response to it reflects the powerful
dissatisfaction of residents about the status quo, and they used the tools provided to them by the
California constitution to express their concern by exercising the power of referendum.
On March 1, 2022, the City Council accepted the City Clerk’s certification of sufficiency,
concluding that the referendum petition had qualified for the ballot. Instead of putting the matter
to the voters, the Council voted to rescind Ordinance No. 11-21 in full.
One-Year Bar on Adopting Substantially Similar Ordinance
Elections Code section 9241 provides that “[i]f the legislative body repeal the ordinance .
. . the ordinance shall not again be enacted by the legislative body for a period of one year after
the date of its repeal by the legislative body.” This bar is not limited to the precise reenactment
of the challenged ordinance. Rather, as courts are required to “jealously guard” the exercise of
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the constitutionally-reserved right of referendum (DeVita v. County of Napa (1995) 9 Cal.4th
763, 776), the courts have consistently held that held that the bar extended to the enactment of
laws that bear the same “essential features” as the challenged ordinance (In re Statham (1920) 45
Cal.App. 436, 439-440). The question is “whether the second legislative enactment is essentially
the same as the first.” (Martin v. Smith (1959) 176 Cal.App.2d 115, 118.) Allowing the
legislative body to readopt the essentially the same ordinance would undermine the constitution’s
reservation of the referendum power as a “guarantee[] to the citizens an ultimate check on
legislative power.” (Midway Orchards v. County of Butte (1990) 220 Cal.App.3d 765, 779.)
In Lindelli v. Town of San Anselmo (2003) 111 Cal.App.4th 1099, the Court of Appeal
explained the purpose of the one-year bar:
“The function of the stay provision is to enforce the electorate's power to approve
or reject measures provisionally adopted by a legislative body before they take
effect. If the stay provision were interpreted to apply only to the specific measure
challenged by referendum, the referendum power could be ‘completely nullified.’
‘[T]he legislative body could by merely amending [the challenged ordinance] in a
minor way and adding additional matters, then adopt in its entirety the legislative
act objected to in the referendum petition. If such were the law, the council
merely by continuous amendment of that act could deprive the voters of ever
having an act either repealed or brought to a vote.’ For this reason, the stay is not
confined to the specific ordinance and its exact terms. It extends to repassage of
the challenged ordinance with minor amendments. This rule is ‘inherent in the
very principle of the referendum and the spirit of the section.’ ‘If such were not
the case, no referendum could ever be brought to a conclusion, because a council
could prevent it by recurrent amendments to the disputed legislative act.’”
(Lindelli v. Town of San Anselmo (2003) 111 Cal.App.4th 1099, 1109–1110.)
In Lindelli, the Court of Appeal rejected a city’s attempt, while a referendum petition was
circulating, to enact a waste-hauling contract for a shorter period than the challenged contract,
with the same business. Even understanding the need for the city to enter into a waste-hauling
contract to provide this crucial service, the court held that the interim contract was void because
of the bar on enactment of essentially the same measure. Similarly, in Martin v. Smith, the court
concluded that a subsequent enactment that changed the number of years on the term of lease,
while maintaining all other terms identically, was essentially the same as the referended
ordinance. The number of years of the lease was not the issue that concerned the voters, the court
reasoned, but rather the fact of the leases of public land in the first instance.
As the Court of Appeal in held in County of Kern v. T.C.E.F., Inc. (2016) 246
Cal.App.4th 301, 322–323, a critical aspect of the exercise of the referendum is that it return the
state of challenge laws to the status quo ante, in consideration of the practical effect of the
actions of the governing body. The court noted that any “additional action taken by a board may
not have the practical effect of implementing the essential feature of the protested ordinance. In
other words, additional action by a board of supervisors violates section 9145 if it fails to return
to the status quo ante on the essential feature of the protested ordinance.” The court imposed this
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Dublin City Council
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Page 3
standard because “[a]dopting a more lenient test would allow boards of supervisors to nullify or
significantly burden the exercise of the referendum power by repealing a protested ordinance and
immediately taking action that produces, from a practical perspective, essentially the same
result.” Critically, “substance, not form, is the proper test for determining the real character of
conduct or a transaction.” In the context of a county referendum, the court concluded that the
requirement to “‘entirely repeal the ordinance’ requires the board of supervisors to (1) revoke the
protested ordinance in all its parts and (2) refrain from additional action that has the practical
effect of implementing the essential feature of the protested ordinance.”
The East Ranch project proposed in Agenda Item 6.1 is not just substantially similar; it is
virtually identical to the project approved in December 2021, that was the subject of the
rescinded Ordinance 11-21. Although Trumark is now required to comply with the terms of the
City’s inclusionary housing ordinance and provide 60 percent of the affordable units on site, this
is the only change in the project presented. The unit count is identical. The arrangement of the
property is the same. The resolution notes that “the request to modify Condition of Approvals
Nos. 6 and 7 . . . does not materially change Vesting Tentative Tract Map No. 8563.” The
Vesting Tentative Tract Map even incorporates by reference the repealed Ordinance 11-21.
Even though the Tract Map modification will take the form of a resolution, to allow such a
resolution to be adopted would elevate form over substance. There can be no doubt that if the
Council approves the resolution on the agenda, it will be taking an action to effectuate the
precise target of the referendum petition, without having made any changes to respond to the
features that were of concern to the public.
The Housing Accountability Act Does Not Eliminate the Need for the Stage Two
Development Plan
The basis for this new approach is that the Housing Accountability Act (HAA)
purportedly does not allow a city to require a zone change in order to approve housing. This
contention significantly distorts the statutory language of the HAA.
The HAA, Government Code section 65589.5, subdivision (j)(4), provides that “a
proposed housing development project is not inconsistent with the applicable zoning standards
and criteria, and shall not require a rezoning, if the housing development project is consistent
with the objective general plan standards and criteria but the zoning for the project site is
inconsistent with the general plan.” This provision is intended to allow for projects to proceed
where the General Plan allows housing, but the site’s underlying zoning does not.
The staff report is notably silent on the operation of the HAA and the question why no
Stage 2 Development Plan is required here. The zoning of this property is “Planned
Development District.” The City’s code requires two stages of development plans for properties
that are in a Planned Development Zoning District. At enactment of the Planned Development
zoning, a “Stage 1 Development Plan” is required that covers the entire district, establishing
uses, site area, and proposed densities and maximum unit count. Subsequently, a Stage 2
Development Plan may apply to all or a portion of the Planned Development District, and such
plan must include maximum density, unit count by type of unit, architectural standards, and
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Dublin City Council
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Page 4
development regulations. “All Subdivision Maps, Conditional Use Permits, and Site
Development Reviews within a Stage 2 development area shall be consistent with that Stage 2
Development Plan. . . . Ministerial and discretionary permits may be issued only for those
portions of a Planned Development District for which a Stage 2 Development Plan has been
adopted.” (Dublin Municipal Code, § 8.32.030 B.) The Stage 2 Development Plan is enacted “in
accordance with the provisions of Chapter 8.120, Zoning Ordinance Amendment.” (Id., §
8.32.070.) However, while the Stage 2 Development Plan follows those procedures,
substantively, the Stage 2 Development Plan does not change the property’s zoning. It
establishes land use policies applicable to the property, while the zoning remains in the Planned
Development District.
Given the importance of the Stage 2 Development in the Planned Development District
zoning, it is telling that the staff report does not discuss the significance of approving the Vesting
Tentative Tract Map without a Stage 2 plan. Indeed, the only modifications made to the Vesting
Tentative Tract map are to revise conditions 6 and 7, which address affordable housing and a
parcel on which affordable housing would potentially have been constructed. Under the new
map, more affordable housing will be built on site than had originally been proposed.
The remainder of the original resolution is left intact. This includes the finding that
“[t]he proposed subdivision map together with the provisions for its design and improvement is
consistent with the general plan and any applicable specific plan because: 1) the proposed
Vesting Tentative Tract Map No. 8563 together with the provisions for the design and
improvements comply with the development standards of the Eastern Dublin Specific Plan and
the Stage 1 and Stage 2 Development Plan.” References to the Stage 2 Development Plan are
repeatedly consistently throughout the findings in support of the Vesting Tentative Tract Map.
This is not surprising, because subdivision maps must be consistent with the Stage 2
Development Plan.
What’s more, the proposed resolution in Agenda Item 6.1 expressly amends the text of
the purportedly rescinded Ordinance 11-21. “BE IT FURTHER RESOLVED that the City
Council of the City of Dublin does hereby amend Section 4.9 of Ordinance 11-21, as that text is
incorporated by reference into Resolution 140-21, to reflect the text of modified condition 7 set
forth above.”
It appears that while the Council claims to have rescinded Ordinance 11-21 on March 1,
that it is actually treating that document as alive and well. It remains the basis for the
consistency of the Vesting Tentative Tract Map, and it is even proposed to be amended by the
Council tonight.
In Orange Citizens for Parks & Recreation v. Superior Court (2016) 2 Cal.5th 141, the
Supreme Court castigated a city that adopted a General Plan amendment that was successfully
referended for turning around and pretending that the General Plan amendment was never
required in the first instance. The Council here threatens to commit a similar error. Either
Council will be pretending that the Stage 2 Development Plan was not required in the first
instance, in spite of the unambiguous requirements of the Municipal Code, or Council will admit
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Dublin City Council
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that it has resurrected the Stage 2 Development Plan in order to approve the Tract Map, without
actually subjecting that plan to the required approval process. Of course, the Council cannot
approve a Stage 2 Development Plan, unchanged, without violating the one-year bar.
Conclusion
The Council should reject this effort to subvert the express will of the people, in the
exercise of their constitutionally-reserved right of referendum. It is clear that the East Ranch
project contains all of the same features to which the people objected in the referendum process.
The Council cannot adopt the modifications to the Vesting Tentative Tract Map.
Sincerely,
Beverly Grossman Palmer
Attorney for Dubliners Against Overdevelopment
56
156791091.2
Cecily Barclay
CBarclay@perkinscoie.com
D. +1.415.344.7117
F. +1.415.344.7317
May 3, 2022
City of Dublin City Council
c/o Linda Smith
City Manager
City of Dublin
1000 Civic Plaza
Dublin, CA 94568
Re: Agenda Item 6.1 on Tonight’s Council Agenda
HAA Application to Modify the East Ranch VTM
Response to Dubliners Against Overdevelopment 5/3/22 Letter
Dear Ms. Smith and Hon. Councilmembers:
On behalf of my client, Trumark Companies, I am responding to the May 3, 2022 letter
submitted by Beverly Grossman Palmer on behalf of Dubliners Against Overdevelopment.
Please distribute this letter to Councilmembers and include it in the administrative record.
A. Dubliners’ Arguments Are Barred By the Statute of Limitations.
All of Dubliners’ arguments appear premised upon a claim that the Vesting Tentative Map for
East Ranch cannot be implemented or amended. That map was approved on December 7,
2021 by Resolution 140-21, and the approval did not contain any provisions stating that its
effectiveness was dependent upon the continued viability of Ordinance 11-21. The statute of
limitations for bringing a challenge to that Resolution expired 90 days later, on March 7, 2022.1
Neither Dubliners nor any other person or entity brought any action prior to March 7, 2022.
Accordingly, the Resolution and map are now conclusively deemed valid and cannot be
challenged.
B. The One Year Bar Applies Only to Legislative Acts, Not Adjudicatory Map
Decisions.
Dubliners raises the one year bar against adopting an ordinance substantially similar to a
referended ordinance. No such action is proposed here. As Dubliners notes in its letter, “The
1 Gov’t Code § 66499.37 establishes the 90-day statute of limitations. Dubliners cannot avoid that bar
merely by characterizing its claim as arising under referendum law. Any attack on the provisions of
Resolution 140-21, no matter how that attack is characterized, is subject to this 90-day statute of
limitations. A project opponent cannot evade the statute of limitations by attempting to characterize their
claim differently. Once the statute of limitations passes, the doctrine of administrative res judicata
prevents both direct and collateral attacks on the Resolution. See Hensler v. City of Glendale, 8 Cal. 4th
1 (1994) (holding that challenge purportedly brought under inverse condemnation law and within inverse
condemnation was barred by section 66499.3, because claim was actually a challenge to a map
condition); State of California (Veta) v. Superior Court, 12 Cal. 3rd 237 (1974); City and County of San
Francisco v. Padilla, 23 Cal. App. 3rd 388, 396–97 (1972).
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May 3, 2022
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156791091.2
question is ‘whether the second legislative enactment is essentially the same as the first.’”2
Trumark is not seeking any legislative enactment; it seeks only an amendment to its existing
Vesting Tentative Map. A map decision is an adjudicatory act. It is not legislative, it therefore
cannot replace a legislative action, and it is not subject to initiative or referendum. E.g., Arnel
Dev. Co. v. City of Costa Mesa, 28 Cal. 3rd 511, 519 n.8 (1980) (referencing bright line rule that
maps are adjudicatory).
C. The Housing Accountability Act (HAA) Prevents The City From Requiring Another
Stage 2 Plan Rezoning Ordinance.
Dubliners next questions the provisions of the HAA that state the City “shall not require a
rezoning.” Dubliners concedes that “This provision is intended to allow for projects to proceed
where the General Plan allows housing, but the site’s underlying zoning does not.” That is
exactly the case here. The lack of inclusion of a Stage 2 Development Plan in the underlying
zoning, absent the HAA, would prevent the project from proceeding.
Dubliners states that the HAA prohibition applies only to the PUD zoning for the site, and not to
a rezoning associated with a Stage 2 Development Plan. It characterizes Ordinance 11-21 as
something that is separate from the PUD and not a legislative zoning ordinance but only an
implementation of pre-existing PUD zoning. Dubliners’ argument ignores the plain language of
the Municipal Code and Ordinance 11-21. Municipal Code section 8.32.030 states that “A
Stage 2 Development Plan . . . may be adopted at a subsequent time as a separate Zoning
Ordinance Amendment(s) pursuant to Chapter 8.120, Zoning Ordinance Amendment.”
Ordinance 11-21 itself stated that the property was rezoned to incorporate a Stage 2 plan, by
ordaining that “the City of Dublin Zoning Map is amended to zone the property described
below to a Planned Development Zoning District,” and it referred to the project site as “the
rezoning area.”
Requiring approval of another rezoning ordinance is prohibited also because the requirement is
not objective, and the HAA prohibits denial based on a non-objective standard. While the City’s
zoning standards do contain requirements for a Stage 2 Plan, those requirements are not
objective. As the California Department of Housing and Community Development explains with
respect to analogous provisions of SB 35,3 “A standard that requires a general plan
amendment, the adoption of a specific plan, planned development zoning, or another
discretionary permit or approval does not constitute an objective standard.” Accordingly, the
project cannot be denied for failure to comply with non-objective standards relating to a Stage 2
Development Plan.
2 In several quotations, this letter adds emphasis to the text of the original source documents by
formatting that text in bold, italicized font.
3 HCD, Updated Streamlined Ministerial Approval Process Government Code Section 65913.4
Guidelines, available at https://www.hcd.ca.gov/policy-research/docs/sb-35-guidelines-update-final.pdf
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156791091.2
D. The Map Incorporates the Contents of Ordinance 11-21 By Reference, Thus
Establishing All Details Of a Stage 2 Plan.
Trumark agrees that it is bound by the contents of the previously-approved Stage 2
Development Plan even though Ordinance 11-21 has been repealed. Accordingly, there should
be no concerns about the details of the site plan Trumark is authorized to develop.
As explained in our application letter, Resolution 140-21 approving the East Ranch Vesting
Tentative Map incorporates the contents of Ordinance 11-21 by reference. The fact that
Ordinance 11-21 was repealed is not relevant to the fact that its contents are still part and parcel
of Resolution 140-21. In Palermo v. Stockton Theaters, 32 Cal. 2d 53, 59 (1948), for example,
the court noted that “[i]t is a well-established principle of statutory law that, where a statute
adopts by specific reference the provisions of another statute, regulation, or ordinance, such
provisions are incorporated in the form [in] which they exist at time of reference and not as
subsequently modified, and that the repeal of the provisions referred to does not affect the
adopting statute, in the absence of a clearly expressed intention to the contrary.” The court
reasoned that, had the statute at issue expressly indicated that it would expire when the
incorporated text expired, that provision would have been given effect. However, the absence
of such an express provision was evidence that such a result was not intended. Id. at 62. See
also, Gonzalez v. City of Norwalk, 17 Cal. App. 5th 1295, 1311 (2017) (court applied this
principle in interpreting a city ordinance enacted by ballot initiative that specifically referenced
federal tax law, holding that a change in the interpretation of federal tax law did not apply
retroactively to change the meaning of the city ordinance). Accordingly, the text of Ordinance
11-21 remains incorporated into the map approval.
E. Trumark Is Not Pretending Ordinance 11-21 is Alive and Well.
Dubliners accuses the City of pretending that Ordinance 11-21 is alive and well. Trumark is not
requesting the City to do any such thing. As noted above, while the contents of Ordinance
11-21 remain incorporated into Resolution 140-11, Ordinance 11-21 has been repealed. If
Ordinance 11-21 were still “alive and well,” there would be no need to invoke the provisions of
the HAA that prevent the City from requiring a rezoning ordinance.
Dubliners cites Orange Citizens for Parks & Recreation v. Superior Court, 2 Cal. 5th 141 (2016).
That case involves a city’s interpretation and application of its General Plan.4 It does not
4 In that case, citizens successfully referended a resolution enacting a General Plan Amendment. The
City of Orange nonetheless approved a project, taking the position that the amendment was not needed
for the project, because its General Plan already included a Resolution that had been enacted in 1973.
The court noted that “the main question before us is whether the 1973 resolution is part of the City's
current general plan.” It reviewed the record in detail, noted that “City planning documents and internal
analyses have referred to the [1973 Resolution] in varying and inconsistent terms, sometimes describing
it as part of the general plan, sometimes as a specific plan, and sometimes as a different type of plan
altogether, such as an area, neighborhood, or community plan,” and described the pre-amendment land
use designation as clearly and specifically limiting uses. It concluded that “no reasonable person could
conclude that the Property could be developed without a general plan amendment changing its land use
designation,” and overturned the project approvals.
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156791091.2
mention the HAA or any State Housing Law. It does not address Dubliners’ claim that a
rezoning ordinance can be required despite the HAA. Accordingly, the case is not relevant.
Dubliners notes correctly that Trumark is requesting the Council amend the portion of the map
resolution that incorporates the contents of Ordinance 11-21 by reference, and questions that
request. Trumark has applied to amend that portion of the map resolution solely to reflect the
modified, objective housing program. Trumark’s application letter establishes that it is seeking
an amendment to the map approval, not re-enactment of Ordinance 11-21.
Finally, Dubliners implies that if a Stage 2 Development Plan rezoning ordinance was required
previously, it must be required now. Not so. Trumark’s previous applications sought approval
of a project that implemented discretionary provisions of the City’s inclusionary ordinance, and
therefore was not subject to the HAA. The current application addresses a modified project that
is consistent with objective inclusionary housing standards and therefore is subject to the HAA.
It is the HAA that eliminates the requirement that the site’s zoning regulations include a Stage 2
Development Plan.
Thank you for considering this matter.
Sincerely,
Cecily Barclay
cc: John Bakker, City Attorney
Tony Bosowski, Division President, Trumark Companies, LLC
John Willsie, General Counsel, Trumark Companies, LLC
60