HomeMy WebLinkAboutSB 9 and SB 10 Impacts to Huntington Beach - Submitted by Co (2) 2000 Main Street,
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File #: 23-172 MEETING DATE: 2/21/2023
Subject:
Submitted by Councilmember Burns - SB 9 and SB 10 Impacts to Huntington Beach
Recommended Action:
Direct the City Attorney to take any legal action necessary to challenge SB 9 and SB 10 and the laws
that permit ADU's. Also, direct the City Manager to cease the processing of all applications/permits
brought to the City by developers under SB 9, SB 10, or State law related ADU projects, until the
courts have adjudicated the matter(s).
Attachment(s):
1. Memo
City of Huntington Beach Page 1 of 1 Printed on 2/16/2023
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CITY OF HUNTINGTON BEACH
CITY COUNCIL MEETING—COUNCIL MEMBER ITEMS REPORT
TO: HONORABLE MAYOR AND CITY COUNCIL
FROM: PAT BURNS, CITY COUNCIL MEMBER
DATE: FEBRUARY 21, 2023
SUBJECT: SB 9 AND SB 10 IMPACTS TO HUNTINGTON BEACH
The State's housing laws in recent years have become incredibly onerous and burdensome to
cities, including fully developed cities like Huntington Beach. In 2021, the State passed SB 9 and
SB 10 and State laws expand the ability for development of ADU's that circumvent local zoning
controls, all of which produce a proliferation of development and multi-unit housing in already
well-established single-family neighborhoods. The City has a duty to protect the quality and
lifestyle of the neighborhoods that current owners have already bought into and for the future
sustainability of Huntington Beach,the City has a duty to ensure the principles of Euclidean
Zoning, like project/development compatibility, etc., are honored and respected.
SB 9 and SB 10 and the State laws expanding ADU's are designed to undermine local City zoning
authority (including in Charter Cities like Huntington Beach) by overriding local single family
neighborhood zoning and incentivizing property owners to redevelop their single family
residences into mutli-plex apartment-like developments (including for affordable
housing). Radical redevelopment in already-established residential neighborhoods is not only a
threat to quality and lifestyle, but to the value of the adjacent and neighboring properties. The
City should not be put in a position by the State through SB 9 and SB 10 or those State laws
expanding ADU's that would allow the diminution of an owner's property value without just
compensation, and Huntington Beach should not have its Charter City zoning rights provided
for by the California Constitution trampled by the State.
RECOMMENDED ACTION
Direct the City Attorney to take any legal action necessary to challenge SB 9 and SB 10 and the
laws that permit ADU's. Also, direct the City Manager to cease the processing of all
applications/permits brought to the City by developers under SB 9, SB 10, or State law related
ADU projects, until the courts have adjudicated the matter(s).
692
io 1
CITY OF HUNTINGTON BEACH
CITY COUNCIL MEETING—COUNCIL MEMBER ITEM MEMO
TO: THE HONORABLE MAYOR AND CITY COUNCIL
FROM: DAN KALMICK, CITY COUNCILMEMBER
DATE: FEBRUARY 17, 2023
SUBJECT: COUNCILMEMBER BURN'S SB9/SB10 ITEM FOR 2/21/2023 AGENDA
I appreciated Councilmember Burn's move to withdraw this item from last meeting's agenda. I
am, however, surprised to see it back on the agenda with even wilder asks and requesting less
information than last meeting's request. The addition of prohibiting Accessory Dwelling Units
(ADUs - as Councilmember Burns fails to define) in this City is a surprisingly huge overreach by
this Council. There is NO evidence presented that ADUs are a problem and removing the ability
to add ADUs strips property owners of their property rights and could be considered a taking
without just compensation, which Councilmember Burns seems to be trying to avoid.
At the June 21, 2022, City Council Meeting,the City Council created Objective Standards to retain
local control with regard to SB9. SB10 is an opt-in state law.The City has not opted into SB10 so
how would we show harm from it in order to initiate litigation? I have attached the staff report
from June of last year that includes a full run down of SB9 and SB10 and how the ordinance
passed resolves most of the concerns in Councilmembers Burn's item. Furthermore, the City has
not received a single SB9 application for a lot split.The attached Los Angeles Times article dated
January 18th, 2023 and the cited study from UC Berkeley's Terner Center, show that SB9 has been
ineffective at producing housing stock.There is no imminent threat from SB9 or SB10.ADUs have
been part of the fabric of Huntington Beach since its inception. With nearly 20% of households
in California now multigenerational and housing prices keeping more people out of the market,
this item is literally NIMBYism: Not allowing ADUs in one's own backyard.
Councilmember Burn's item states that he wants to uphold property rights of neighbors by
limiting property rights on those looking to exercise them?This circular argument has no footing
in reality. This item is a solution looking for a problem and a waste of city resources.
I recommend that Councilmember Burns avail himself of the professional staff of the Community
Development Department and not just the City Attorney's office when bringing items forward.
This item will put our City and Staff into a peculiar position of violating state law based on local
City policy. It is dangerous and misguided.
SUPPLEMENTAL
COMMUNICATION
Meeting Date: a'a-\1aos
Agenda Item No.; (��- I?02>
2000 Main Street,
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City of Huntington Beach
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COUNTV Ca .
File #: 22-437 MEETING DATE: 5/24/2022
PLANNING COMMISSION STAFF REPORT
TO: Planning Commission
FROM: Ursula Luna-Reynosa, Director of Community Development
BY: Jennifer Villasenor, Deputy Director of Community Development
SUBJECT:
ZONING TEXT AMENDMENT NO. 22-002 (SB 9 DEVELOPMENT PROJECTS)
REQUEST: To amend the Huntington Beach Zoning and Subdivision Ordinance (HBZSO) to
establish permanent objective development and design standards for SB 9 development
projects. On March 1, 2022, the City Council adopted an interim urgency ordinance
establishing Chapter 237 of the HBZSO to establish development regulations and
processing procedures for SB 9 development projects. The City Council extended the
interim urgency ordinance on April 5, 2022.
LOCATION: Citywide - Residential Low Density (RL) designated properties
APPLICANT: City of Huntington Beach
PROPERTY
OWNER: N/A
BUSINESS
OWNER: N/A
STATEMENT OF ISSUE:
Zoning Text Amendment (ZTA) No. 22-002 is a City-initiated request to amend the Huntington Beach
Zoning and Subdivision Ordinance (HBZSO) by adding Chapter 237 - Objective Standards for SB 9
Development Projects, which establishes development standards and review procedures for projects
proposed pursuant to Senate Bill 9 (SB 9). SB 9 became effective on January 1, 2022, and requires
cities to ministerially approve two unit developments and/or parcel maps to subdivide an existing lot
in single-family residential zones.
RECOMMENDATION:
That the Planning Commission take the following actions:
A) Find that Zoning Text Amendment No. 22-002 is exempt from the California Environmental
Quality Act (CEQA) pursuant to Government Code Sections 65852.21(j) and 66411.7(n), which state
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that the adoption of an ordinance by a city or county implementing the provisions of Government
Code Sections 65852.21 and 66411.7 and regulating urban lot splits and two unit projects is not a
project under CEQA.
B) Recommend approval of Zoning Text Amendment No. 22-002 with findings (Attachment No. 1)
by approving the draft City Council ordinance (Attachment No. 2) and forward to the City Council for
consideration.
ALTERNATIVE ACTION(S):
Continue Zoning Text Amendment No. 22-002 and direct staff accordingly.
PROJECT PROPOSAL:
ZTA No. 22-002 proposes to amend the HBZSO by adding Chapter 237 - Objective Standards for SB
9 Development Projects, establishing development standards and review procedures for projects
proposed pursuant to Senate Bill 9.
Effective January 1, 2022, SB 9 adds Sections 65852.21 and 66411.7 to the Government Code.
Section 65852.21 requires cities to consider a proposed housing development containing no more
than two residential units within a single-family residential zone ministerially, without discretionary
review or hearing, if the proposed housing development meets certain requirements. Section
66411.7 requires local agencies to ministerially approve a parcel map for an "urban lot split" meeting
certain requirements. Both statutes permit the City to impose objective zoning, subdivision, and
design standards on such projects as long as those standards would not have the effect of physically
precluding the construction of up to two units on a lot or physically preclude either of the two units
from being at least 800 square feet in floor area.
Background:
SB 9 was signed into law by Governor Newsom on September 16, 2021, and became effective on
January 1, 2022. SB 9 was part of the California Senate's 2021 Housing Production Package, a
group of housing laws aimed at increasing housing supply throughout the state.
On March 1, 2022, the City Council adopted an interim urgency ordinance establishing Chapter 237
of the HBZSO, which provides development regulations and processing procedures for SB 9
development projects. The City Council extended the interim urgency ordinance on April 5, 2022.
The proposed ZTA would establish permanent SB 9 regulations.
To date, the City received several inquiries and one SB 9 submittal, but the submittal was
subsequently withdrawn.
ISSUES AND ANALYSIS:
Summary of SB 9
To qualify for ministerial approval under SB 9, a two-unit development or urban lot split must
satisfy specified criteria. These qualifying criteria include, but are not limited to the following:
• The property must be located within a single-family residential zone.
• The proposed development cannot be located within a historic district or on property included
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on the State Historic Resources Inventory, or within a site designated or listed as a city landmark
or historic property pursuant to a city ordinance.
• The development site cannot be prime farmland, wetlands, a site identified for conservation or
habitat preservation, or a regulatory floodway and the development must meet specified
standards if it is located in high or very high fire hazard severity zone, the flood zone, or within an
earthquake fault zone.
• The proposed development cannot require the demolition or alteration of housing occupied by
a tenant within the last three years.
• The proposed development cannot require the demolition or alteration of housing subject to a
recorded covenant, ordinance, or law that restricts rents to levels affordable to persons and
families of moderate, low, or very-low income.
• The proposed development cannot require the demolition or alteration of housing subject to
any form of rent or price control.
• An owner of the property cannot have removed residential units on the property from the rental
market under the Ellis Act within the last 15 years.
• If the site has been occupied by a tenant within the last three years, the proposed
development cannot allow for the demolition of more than 25% of the existing exterior structural
walls (unless allowed by local ordinance).
In addition, in the case of an urban lot split:
• The parcel map must subdivide an existing lot to create no more than two new lots of
approximately equal lot area, provided that one lot shall not be smaller than 40% of the lot area of
the original lot;
• Unless the city otherwise allows, both newly created lots must be no smaller than 1,200
square feet;
• The lot proposed to be subdivided must not have been established through a prior urban lot
split;
• The subject lot cannot be adjacent to any lot established through an urban lot split by the
owner of the subject lot or by any person acting in concert with the owner of the subject lot; and
• Except as otherwise provided in SB 9, the proposed subdivision must comply with all objective
requirements of the Subdivision Map Act.
In limited circumstances, a city may deny an application for an SB 9 two-unit development or urban
lot split where the proposed project would have a specific, adverse impact upon health and safety or
the physical environment and for which there is no feasible method to satisfactorily mitigate or avoid
the specific, adverse impact.
SB 9 also outlines what types of regulations a local jurisdiction can and cannot impose on an SB 9
project:
'Regulation (Permitted Not Permitted
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Subdivision - Easements for provision of public - Dedication of right-of-way-
Requirements services- Easements to ensure Construction of off-site improvements-
subdivided lots have access to the Correction of nonconforming zoning
public right-of-way conditions
Objective - Objective zoning, subdivision, and - No setback can be required if unit is
Standards design standards built within the footprint of existing
structure- Otherwise maximum 4'
setback from side and rear yards-
Standards cannot physically prevent
the development of an 800 s.f. unit on
each lot
Parking - Can require one space per unit - Cannot require parking if site is within
'/2 mile of a high quality transit corridor
or major transit stop or if there is a car
share vehicle within a block of the
project
Rental - Can prohibit short term rental of - No additional owner occupancy
Restrictions any units created through SB 9 - For requirements are allowed
lot splits, applicants must submit an
affidavit that they intend to occupy
one of the unit as a principal
residence for at least 3 years
General Plan Conformance:
ZTA No. 22-002 would add Chapter 237 to the HBZSO and establish development regulations and
processing procedures for SB 9 development projects consistent with state law. SB 9 projects would
be permitted within the Residential Low (RL) Density designated areas and allow duplexes and/or
subdivisions (i.e. - lot splits) in single-family residential neighborhoods. The proposed regulations of
ZTA No. 22-002 provide for duplexes and lot splits in accordance with state law, create ministerial
review procedures, and establish objective development and design standards that conform to the
goals and policies of the General Plan. ZTA No. 22-002 is consistent with the General Plan goals
and policies identified below.
Land Use Element
Policy LU-1(D): Ensure that new development projects are of compatible proportion, scale, and
character to complement adjoining uses.
Policy LU-2(D): Maintain and protect residential neighborhoods by avoiding encroachment of
incompatible land uses.
Goal LU-4: A range of housing types is available to meet the diverse economic, physical, and social
needs of future and existing residents, while neighborhood character and residences are well
maintained and protected.
Housing Element
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Policy 1.1: Preserve the character, scale and quality of established residential neighborhoods.
Goal 2: Provide adequate housing sites through appropriate land use, zoning and specific plan
designations to accommodate Huntington Beach's share of regional housing needs.
Policy 4.3: Explore continued improvements to the entitlement process to streamline and coordinate
the processing of permits, design review and environmental clearance.
ZTA No. 22-002 would establish regulations to implement SB 9, a state law that allows for duplexes
and lot splits in single-family residential zones. The proposed regulations provide a ministerial
process for SB 9 projects in accordance with state law while ensuring objective standards are in
place to protect the City's single-family residential neighborhoods from adverse impacts. The
proposed ZTA introduces a new residential product type in the RL zoning districts. Consistent with
state law, the proposed ZTA could result in development projects with a total of four units where there
was previously one unit. As such, objective standards are proposed to ensure site design and
architecture is context-sensitive and compatible with the existing single-family residential
neighborhood. Because SB 9 units and lots, if a lot split occurs, would generally be smaller than a
typical single-family property, SB 9 units may be more affordable to a larger segment of the
community. In addition, the proposed ZTA includes an incentive that would allow greater square
footage for property owners that voluntarily provide affordable units to low income households. The
proposed processing procedures allow for ministerial approval if an applicant complies with the
objective standards of the proposed ZTA. The proposed ministerial review procedures and objective
standards provide a streamlined process with high level of certainty for property owners seeking to
construct SB 9 projects in compliance with the objective standards.
Zoning Compliance:
The proposed amendments to the HBZSO have been developed pursuant to the regulations
contained in SB 9 and reflect the minimum objective standards to protect the public health, safety
and welfare and ensure SB 9 projects do not have a detrimental impact on single-family
neighborhoods within the City. Below is a summary of the proposed SB 9 provisions.
Applicability and General Requirements
• Permitted in the Residential Low Density (RL) zoning district and specific plans with RL
districts
• SB 9 project shall comply with all other applicable requirements, including the HBZSO
and Municipal Code
• Applicant must affirm the SB 9 project meets the eligibility requirements of the state law
• Application must include written approval from Homeowners' Association (HOA), if any
• Applicant is required to record a covenant on the property with the following provisions:
o Non-residential uses and short-term rentals shall be prohibited
o Property owner intends to occupy one of the housing units as their principal
residence for three years
o A subsequent urban lot split on land previously subdivided via an urban lot split
shall be prohibited
o Parking for any existing units shall be maintained
o Access to the public right-of-way shall be maintained in perpetuity
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o Residential units on a single lot cannot be sold separately
o For projects with a lot split, accessory dwelling units shall be prohibited
Review procedures
• Applications for SB 9 projects shall be approved ministerially
• During the City's review, if the City identifies a potential issue with respect to adequate
water, sewer, traffic flow, or public safety, the City may require the applicant to submit an
Administrative Permit application
• A SB 9 project may be denied if the project, based on a preponderance of the evidence,
would have a specific, adverse impact with no feasible method to mitigate or avoid the
impact
• SB 9 projects requiring a coastal development permit (CDP) or tentative parcel map
(TPM) shall be required to go through the normal approval process for those applications
except no public hearing would be required
Objective Standards
• All development standards not specified in the ordinance shall apply the standards of
the base zoning district
• Maximum size: 800 square feet and one bedroom (lots less than 10,000 square feet);
1,600 square feet and two bedrooms (lots 10,000 square feet or greater)
• Maximum height: 16 feet/one story
• Side and rear setback: four feet (no encroachments would be permitted)
• Parking: one enclosed or partially enclosed space (i.e. - carport) per new unit; no
parking is required for new units within one-half mile of a high quality transit corridor or a
major transit stop or if there is a car share vehicle within one block of the project
• Design: all new units shall have the same architectural style, roof pitch, and color
• All new units shall have solar panels
• No rooftop decks shall be permitted
• Additional Lot Split Standards: minimum lot width: 20 feet; access to public right-of-way
must be maintained; flag lots are not permitted for corner lots, through lots, and lots with
alley access.
Environmental Status:
ZTA No. 22-002 is exempt from the provisions of the California Environmental Quality Act (CEQA)
pursuant to Government Code Sections 65852.21(j) and 66411.7(n), which state that the adoption of
an ordinance by a city or county implementing the provisions of Government Code Sections
65852.21 and 66411.7 and regulating urban lot splits and two unit projects is not a project under
CEQA.
Coastal Status:
ZTA No. 22-002 will require certification of a Local Coastal Program Amendment by the California
Coastal Commission.
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Other Departments Concerns and Requirements:
ZTA No. 22-002 was developed with assistance from the City Attorney's Office.
Public Notification:
Legal notice was published in the Huntington Beach Wave on May 12, 2022 and notices were sent to
individuals and organizations requesting notification (Planning Division's Notification Matrix). As of
May 17, 2022, no communications regarding the request have been received.
Application Processing Dates:
DATE OF COMPLETE APPLICATION: MANDATORY PROCESSING DATE(S):
Not Applicable Not Applicable
SUMMARY:
Staff is recommending approval of ZTA No. 22-002 for the following reasons:
• The proposed provisions are consistent with state law
• It is consistent with the goals and policies of the General Plan.
• The proposed ZTA provides clear standards and a ministerial approval process for single-
family residential property owners that want to improve their properties while maintaining
sensitivity to the existing single-family residential neighborhoods.
ATTACHMENTS:
Draft City Council Ordinance
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6/21/2022
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••• 44
ZTA No . 22 -002
• SB 9 Development Projects
• , City Council Meeting
•
41.
: ` June 21 , 2022
t<% s 17, 1909 •
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ONTY c l
Request
• ZTA No. 22-002
• Amend HBZSO by adding Chapter 237—Objective Standards for SB 9
Development Projects
• Establishes development standards and review procedures for projects
proposed pursuant to Senate Bill 9 (SB 9)
• Planning Commission Action
• Public hearing on May 24, 2022
• Recommended approval to the City Council
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COMMUNICATION
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SB 9 qualifying criteria
• Property must he located in a single- • Proposed development cannot demolish
family residential zone (RL) or alter:
• Property cannot be a historic site or in a • Deed restricted affordable housing
historic district • Housing subject to rent control
• Property must be within an urbanized • Housing removed from the rental
area as designated by the U.S. Census market pursuant to the Ellis Act
• Property cannot be located on: within the last 15 years
• Housing occupied by a tenant in the
• Farmland last 3 years (must maintain at least
• Wetlands 75%of the existing exterior walls)
• Hazardous waste site
• Conservation or habitat preservation
area
• Regulatory floodway rl".49/• • on , •
Urban lot sp lit criteria
• Two new lots of
approx. equal size
40% I 60% • Min. lot size: 1,200
I square feet
I
t I I !"'- - • No prior or
40% I 60% 1 subsequent urban lot
/ I I split
I II • Same owner(or
60% 1 I person acting "in
,
1 40%° concert" with owner)
I i f ' cannot split adjacent
Pubk Straat Public Street Public Slieet lots
2
6/21/2022
SB 9 regulations
• SB 9 law allows cities to adopt certain regulations for SB 9
developments:
• Easements for provision of public services and access to right-of-way
• Objective zoning, subdivision, and design standards
• Parking requirement of one space per unit
• Prohibition of short term rentals
• Affidavit that the owner intends to occupy one of the units for at least
3 years
• Denial of SB 9 project must be based on specific, adverse health and
safety impact with no feasible mitigation
Interim Urgency Ordinance
• March 1, 2022: City Council adopted urgency ordinance to establish interim
standards
• April 5, 2022: City Council extended the urgency ordinance
• Proposed ordinance generally maintains same provisions w/ following
changes:
• Increased maximum square footage for larger lots
• Clarifies ADUs are prohibited in SB 9 projects proposing a lot split
• Provision of affordable units is voluntary
Increased square footage incentive
• Design standards revised to be objective
3
6/21/2022
Objective standards
• Max size: 800 s.f./one bedroom or • Design: architecture, roof pitch,
1,600 s.f./two bedrooms depending color same as existing dwelling
on lot size • Solar panels required
• Required parking: One space • STRs not allowed
(garage or carport) • Development must occur with
• Max height: 16 feet (if detached concurrent lot split
from existing dwelling) • All other standards of base zoning
district and parcel map
• Side and rear setback: 4 feet
requirements apply
Must allow exceptions if
standard would preclude two
800 s.f, units on a lot
Review procedures
• Ministerial "by right" process
• Lot split:
• Subdivision application & process required
• No public hearing required
• Coastal Zone:
• Coastal development permit application & process required
• Notification requirements of HBZSO Chapter 245 apply
• No public hearing required
4
6/21/2022
Local ordinance objective standards
• Existing Regulations - up to 3 units
• I Single Family Residence+ 1 ADu+ ? JADL
avu
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Local ordinance objective standards
SB 9 without ordin,Ince
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6/21/2022
Recommendation
• Approve ZTA No. 22-002 and forward to the City Council for adoption
based on:
• Complies with state law
• Consistency with General Plan goals and policies
• Provides clear standards, streamlined review and certainty in the
approval process while avoiding impacts to existing
neighborhoods
•c_
Questions ? f` •
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6
California's HOME Act Turns One:Data and Insights from the First Yea... https://ternercenter.berkeley.edu/research-and-policy/sb-9-turns-one-app..
California's HOME Act Turns One: Data and
Insights from the First Year of Senate Bill 9 -
Terner Center
The California HOME Act—otherwise known as Senate Bill (SB) 9—took effect on
January 1st, 2022 and makes it possible for homeowners to split their home's lot
and build up to four homes on a single-family parcel. Upon the law's passage, some
hailed it as a major victory for zoning reform that would open up new avenues for
small-scale homebuilding in previously exclusionary places. Others feared that the
law might lead to speculation and unchecked growth at the expense of community
character and vulnerable residents.
One year in, we find that the impact of SB 9 has been limited so far. Some of the
state's largest cities reported that they have received just a handful of applications
for either lot splits or new units,while other cities reported none. In this
commentary,we take a first look at SB 9's preliminary outcomes by assessing new
housing development enabled by the law in a handful of jurisdictions statewide,
exploring how many applications were submitted, and talking to local planners
about why the numbers are so low.
What is SB 9?
SB 9 allows homeowners to create up to four homes on an existing parcel, in effect,
eliminating single-family-only zoning. Crucially,the law allows the owner to"split"
their lot, which makes it easier to sell or finance additional homes on a single
parcel.A 2021 analysis by the Terner Center estimated that over 700,000 new
homes would be newly feasible to build if SB 9 passed and taking into account on-
the-ground market dynamics. However,we noted that it would be unlikely that
anywhere near this number of homes would actually be built. Homeowners face
multiple barriers to using SB 9 to split their lot and create new homes, including
high construction costs and/or lack of expertise with homebuilding.We also found
that local governments have created restrictions that limit the potential of SB 9. Our
June 2022 analysis of a sample of ordinances from around the state found that
some local regulations—such as low maximum unit size,height limitations, and
other design rules—may render the construction of SB 9 homes infeasible.
Is SB 9 being used?
To answer this question,we collected data from thirteen jurisdictions across the
state on applications received and approved for both lot splits and new homes as
allowed under SB 9. Cities were selected based on our 2021 analysis showing where
SB 9 projects would most likely be financially feasible, as well as cities that have had
high accessory dwelling unit (ADU) production relative to their population.
Relatively high ADU performance is a relevant metric for this analysis given that
the size, scale, and location are likely to be similar—often owner-occupied single-
family parcels—for ADU and SB 9 projects. We also interviewed eight planning
professionals from four of these jurisdictions to better understand how SB 9 uptake
has played out in those communities.
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California's HOME Act Turns One:Data and Insights from the First Yea... https://ternercenter.berkeley.edu/research-and-policy/sb-9-turns-one-app..
We found that SB 9 activity is limited or non-existent in these thirteen cities (Table
1). Los Angeles had the most overall activity,with 211 applications for new units
under SB 9 in 2022. The state's other large cities all reported very few applications
for lot splits or new units. For example, the city of San Diego reported receiving just
seven applications for new SB 9 units in 2022. To put these numbers into context,
the city of San Diego permitted over 5,OOo new homes in all of 2021 and Los
Angeles permitted just under 2O,000 new homes in 2021.
Table 1. SB 9 Applications Received and Approved through November,
2022
Jurisdiction How many How How many How many
applications many lot applications applications
for lot splits splits for SB 9 for SB 9
has your city have been units has units has
received? approved your city your city
in your received? approved?
city?
Anaheim 2 0 1 0
Bakersfield 0 0 0 0
Berkeley 1 0 5 0
Burbank 1 0 7 2
Danville 20 13 0 0
Long Beach 1 0 1 0
Los Angeles 28 0 211 38
Sacramento 9 6 9 8
San Diego 3 0 7 0
San Francisco 4 2 25 4
San Jose 10 5 1 0
Santa Maria o 0 0 0
Saratoga 21 2 15 1
Among our sample, the smaller cities of Saratoga and Danville stand out for having
a relatively higher number of SB 9 applications. Saratoga reported 15 applications
for SB 9 units and 21 applications for lot splits in 2022. By comparison,the city
permitted 71 total units of housing in 2021. Likewise, the city of Danville reported
receiving 20 applications for lot splits,though no applications had been received for
new units.
What's going on?
First,why Saratoga and Danville?The overperformance of these two cities relative
to others in our analysis may be partly explained by the fact that these cities have
larger single-family lot sizes. Planners from each jurisdiction we interviewed have
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seen that SB 9 seems to work best on larger lot sizes which allow for more room to
build one to two new homes and noted the larger lot sizes in Saratoga and Danville.
In addition, most homes are located in the center of their parcel, making the
addition of another house geometrically difficult on a smaller lot size. Saratoga and
Danville also have significantly higher home sale prices, making it more likely that
splitting a lot will be financially beneficial to the homeowner.
Second,why not cities that have seen relatively high levels of ADU development?
San Diego has seen almost no SB 9 activity, despite high levels of ADU
construction,with 871 ADUs permitted in 2021. Similarly, Santa Maria,which
permitted 401 ADUs in 2021, reported receiving no applications for SB 9 units or
lot splits.This contrast is worth pointing out given that ADUs are similar in size and
location to new SB 9 units. Planners in cities with high ADU development that we
interviewed hypothesized that more prescriptive state ADUs laws are likely pushing
homeowners interested in creating new units towards ADUs. Recent changes in
ADU laws—including laws that limit impact fees, remove owner-occupancy
requirements, and allow for larger units—have made it easier to build Currently,
however, SB 9 does not have this same flexibility. In fact, we found in a previous
analysis that some cities are imposing additional requirements on SB 9 projects,
including guidelines that are prohibited by state law for ADUs.As such, it may be
more attractive for a homeowner to pursue an ADU rather than an SB 9 project.
In addition,local ADU incentive programs are likely having an effect. Planning staff
in San Diego and San Jose noted that their local ADU policies may preclude interest
in SB 9. For example, San Diego allows larger ADU sizes and bonus ADU units
(which allow owners to build multiple units on a single lot) in exchange for
restrictions to make the units available to people with moderate incomes. San Diego
and San Jose also adopted fairly permissive SB 9 implementing ordinances, as
noted in our previous analysis. However, their ordinances,while more
accommodating of SB 9 development than other cities, still do not match the
incentives offered to homeowners considering ADUs, such as limiting impact fees
or offering pre-approved design plans.
Why does this matter?
SB 9 has the potential to help solve the state's housing shortage, particularly by
creating more units in single-family neighborhoods and providing entry-level
homeownership opportunities,but only if the law's promise is realized through
implementation. It is still too early to say that SB 9 is not working. Limited uptake
of the new law may be impacted by the capacity and staff constraints that many
planning departments are experiencing, alongside rising interest rates,high
inflation, and ongoing supply chain/construction disruptions.
However, it is also not too early to think of ways to strengthen SB 9 and remove
ongoing barriers for homeowners interested in building more units on their
property. Low numbers of applications for SB 9 projects so far do not necessarily
imply low interest overall. Planners told us that while applications for SB 9 have
been low, inquiries to their departments about SB 9 are high. That these inquiries
have largely not yet translated into a correspondingly high number of applications
may simply reflect the time and resources needed to pursue an SB 9 project as well
as the aforementioned benefits of pursuing an ADU instead. However, the
discrepancy could also suggest that more can be done at the local and state levels to
improve overall utilization.
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Below are three specific areas that policymakers should examine to improve uptake
of one of California's recent signature housing laws:
Create more prescriptive state standards for SB 9 homes. SB 9 uptake could be
improved by creating more prescriptive land use and zoning standards to enable
greater SB 9 feasibility. This approach is one reason that ADUs have become a
California success story, going from an insignificant share of the state's housing
growth to nearly a fifth of all new units permitted statewide in just six years. This
growth took time and persistence,with several rounds of legislation leading to the
current ADU boom. SB 9 could benefit from similar legislative efforts. These efforts
could include establishing more flexible standards for new home design—such as
larger maximum home sizes and heights—and limiting extra costs—such as impact
fees, particularly for single-family home to duplex conversions. In addition,
planners we interviewed noted that SB 9's owner-occupancy requirement is likely
limiting uptake. Policymakers may consider revisiting this requirement to
encourage higher usage,while maintaining proper guardrails to protect against
speculation by institutional investors and displacement in vulnerable communities.
California's Department of Housing and Community Development should also
consider pathways for jurisdictions to better leverage SB 9 for meeting future
Regional Housing Needs Assessment (RHNA) goals. One such change could be
allowing cities to include more aggressive growth rate assumptions in their
planning if that city is taking proactive approaches to implementing SB 9. This shift
would create an incentive for local governments to bolster educational outreach to
residents and pursue more comprehensive implementation, as many have done
with ADUs.
Adopt more flexible local SB 9 ordinances. Cities have a role to play in the success
of SB 9 as well. Even without new state legislation, local policymakers can consider
adopting policies to improve SB 9 uptake, such as limiting fees and creating clear
guidance and procedure for homeowners. Local policymakers can also consider
additional strategies to increase housing supply in low-density neighborhoods
outside of the state's SB 9 framework, including by increasing housing options
above and beyond duplexes and creating design standards that facilitate several
types of small-scale infill development. Some cities, such as Berkeley and
Sacramento,have begun exploring this approach.A comprehensive local approach
to missing middle housing can greatly complement the goals of SB 9.
Address homeownership barriers. SB 9 has the potential to create more small-
scale homeownership opportunities that are affordable to moderate-income
buyers,but significant obstacles that are specific to homeownership development
under SB 9 remain. Specifically, legislators should reassess requirements under
certain policies such as the Subdivision Map Act and construction defect liability
laws which increase costs and deter the construction of homeownership projects, as
identified in our previous research on missing middle housing. These policies
accrue costs that might otherwise be absorbable in the context of larger-scale
homebuilding,but can make new small-scale for-sale homes financially infeasible
to build. Legislators should consider creating exemptions or special categories for
small-scale homeownership projects such as those allowed under SB 9.
What's next?
The passage of SB 9 in 2021 was hailed by many as a significant housing milestone
that could create meaningful amounts of new homes in high-resourced
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neighborhoods while partly addressing the nefarious origins of single-family only
zoning. However, ensuring major policy shifts achieve their intended goals often
requires a sustained effort beyond one legislative cycle. Relatively low usage of SB 9
thus far indicates that the law could benefit from changes to its current form. For
SB 9 to fulfill its promise,we should continue to monitor its impacts and legislators
should consider revisiting the program as we enter the second year of
implementation.As California enters a period of increased economic uncertainty—
as shown by the governor's recent budget proposal and pending spending cuts—it is
crucial to set up SB 9 for success now to ensure homeowners can make use of the
law when economic conditions improve.
Acknowledgments
Many thanks to the San Francisco Foundation for their support of this work.
Thank you to the planning professionals at the cities of Danville,San Diego, San
Jose, and Santa Maria for sharing their insights as part of this analysis. We
would also like to acknowledge Celeste Goyer,Jared Basler,Ned Resnikoff,Nolan
Gray, and Ryan Joy for their review. Thank you to our Terner Center colleagues
Ben Metcalf, Carolina Reid, and Ryan Finnigan as well as Terner Fellow Bill
Fulton.
This research does not represent the institutional views of UC Berkeley or of the
Terner Center's funders.Funders do not determine research findings or
recommendations in Terner Center's research and policy reports.
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California duplex law not yet working as expected-Los Angeles Times https://www.latimes.com/california/story/2023-01-18/new-california-du..
California duplex law not yet working as
expected - Los Angeles Times
Hannah Wiley
Once seen as the death knell for single-family-home neighborhoods in California, a
new law meant to create more duplexes has instead done little to encourage
construction in some of the largest cities in the state, according to a new report
published Wednesday.
Senate Bill 9 was introduced two years ago as a way to help solve California's severe
housing crunch by allowing homeowners to convert their homes into duplexes on a
single-family lot or divide the parcel in half to build another duplex for a total of
four units. The law went into effect at the start of 2022.
The bill received bipartisan support and ignited fierce debate between its backers,
who said SB 9 was a much-needed tool to add housing options for middle-income
Californians, and critics,who blasted it as a radical one-size-fits-all policy that
undermined local government control.
Neither argument has so far proved to be true.
Across 13 cities in the state, SB 9 projects are "limited or nonexistent,"according to
a new study by the UC Berkeley Terner Center for Housing Innovation.
The report focused on cities considered high-opportunity areas for duplexes
because they've reported significant increases in the construction of accessory
dwelling units — also known as granny flats, casitas or ADUs —in recent years and
have available single-family properties for possible divided lots.ADUs are small,
free-standing homes most often built in the backyards of existing single-family
homes.
The cities are Anaheim, Bakersfield, Berkeley, Burbank, Danville, Long Beach, Los
Angeles, Sacramento, San Diego, San Francisco, San Jose, Santa Maria and
Saratoga.
By the end of November,the cities had collectively received 282 applications for SB
9 projects, and had approved only 53. Los Angeles accounted for the bulk of
applications with 211 submitted and 38 approved, according to the report. San
Francisco received 25 applications and had approved four,while San Diego received
seven and had approved none.
Three cities received one application, and in Bakersfield, Danville and Santa Maria,
zero were submitted.
Applications for dividing lots seem to be even less popular than for building
duplexes. Just io0 applications were submitted, the report noted, and 28 had been
approved.
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David Garcia, Terner Center's policy director, said SB 9 is only in its first year of
implementation and should be given more time before it's judged as ineffective. But
he added that lawmakers should consider whether the law needs tweaking.
"It doesn't seem like Senate Bill 9 in its first year has resulted in very meaningful
amounts of new housing," Garcia said. "Pretty much everywhere you look, Senate
Bill 9 activity is very marginal. It is nonexistent in some places."
Homeowners right now have an easier time building an ADU than a duplex, thanks
to local and state laws that have eased barriers to construction in recent years,
Garcia said. It took multiple rounds of legislation to see productive ADU
development, and the same will probably be true for SB 9 projects,he said.
Recognizing that more was needed to speed up housing construction in California,
the Legislature began overhauling state ADU laws in 2016, and cities followed suit
with their own local ordinances to clear red tape in the building process,which has
inspired a widespread ADU movement.
Between the start of 2017 and January 2023, the city of Los Angeles reported
receiving 35,098 applications for ADUs. It has issued permits for 25,88r and 13,640
have been granted certificates of occupancy.
Heidi Vonblum, San Diego's planning director, said the law is new and barriers to
development are still being worked out.At the same time, the city has an ADU
program that"has been very attractive to property owners,"Vonblum said,while
updated zoning rules and community plans have eliminated"the need to rely on
other programs."
It's a similar situation in Sacramento,where homeowners are allowed to build up to
two ADUs on their properties, said Kevin Colin,the city's zoning administrator.
Colin's team handles one to two ADU applications"each working day,"he said,
because there's such high interest in the projects.
To replicate that success, the Terner Center report suggested cutting fees associated
with new duplex development, or adding more uniform standards for SB 9 projects
to ensure local governments can't attach subjective criteria that discourage
applications, such as architectural design requirements or stringent landscaping
rules. It also proposed revising a mandate that homeowners who split their lots
must live in one of the units for at least three years, a key concession lawmakers
made to reduce opposition from organizations worried about gentrification.
Senate President Pro Tern Toni Atkins (D-San Diego), author of the legislation, said
SB 9 was"never intended to be an overnight fix to our housing shortage."
"We always said not every homeowner would be able, or want, to utilize the tools
provided by the bill on Day One,"Atkins said in a statement. "Subdividing a lot, or
even just adding an ADU, is a big investment.This bill was never intended to be a
sledgehammer approach —it was meant to increase the housing supply over time,
and as awareness of the law increases and more homeowners have the ability to
embrace the tools, I'm confident that we will see results."
Garcia and other housing experts said slow progress could also be attributed to the
effects of the COVID-19 pandemic,when prices for building materials shot up and
homeowners and buyers faced significant market uncertainty. That was followed by
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high inflation and interest rates.
But other factors could be contributing to sluggish SB 9 interest.
Matthew Lewis, spokesperson for California YIMBY, a housing advocacy
organization that supported SB 9, said both ADUs and duplexes have their financial
and logistical pros and cons.
ADUs are an ideal way to generate some "passive income"from a renter, Lewis said,
and make great homes for aging parents or young adult children. Duplexes are good
for that too,but the additional units can be sold separately for even greater
economic opportunity.
On the other hand,ADUs are typically a property extension of the main home, so it
can be difficult or even impossible to separately sell the extra unit. Duplexes require
significantly more financing, and the addition of a separate sewer line and water
service.
"The reality is people will follow the path of least resistance to building the house
they want," Lewis said, adding that it could be worth going back to the drawing
board to ensure local governments are doing what they can to ease burdens to
duplex development.
Although the Terner Center report offers legislators a limited snapshot of how SB 9
has worked so far, the state is also expected to have more robust data available this
summer.
Any attempt to modify SB 9 this year,however, is sure to reignite opposition from
many of the dozens of cities and neighborhood associations that tried to block its
passage in 2021. Since then, some cities have gone to great lengths to avoid
implementing the law, including the Silicon Valley suburb of Woodside,which
declared itself a mountain lion sanctuary and invited a stern warning for
compliance by the state attorney general's office.
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Moore, Tania
From: Kalmick, Dan
Sent: Friday, February 17, 2023 12:46 PM
To: supplementalcomm@surfcity-hb.org
Subject: Please Include this supplemental communication for Item#26
Attachments: 621 Sup Corn - PP (1).pdf;Att3 - PC staff report.pdf; SB9 -California's HOME Act Turns
One Data and Insights from the First Year of Senate Bill 9 -Terner Center.pdf; SB9 -
California duplex law not yet working as expected - Los Angeles Times.pdf; KALMICK
2023-02-07 - MEMO REGARDING BURNS ITEM SB9_SB10.pdf
Please include the attachments herein as supplemental communication for the City Council on Item#26—SB9/10
Please make the Memo the lead item.
Thank you,
Dan Kalmick
City Councilmember
City of Huntington Beach
dan.kalmick@surfcitv-hb.org
(657) 360-4796
'ftriv
2000 Main Street Huntington Beach, CA 92648
1
Switzer, Donna
From: Fikes, Cathy
Sent: Tuesday, February 21, 2023 1:23 PM
To: Agenda Alerts
Subject: FW: Proposal to Cease Processing Permit Applications under SB 9, et al.
Attachments: Huntington Beach-2-21-23-AG clean final.pdf
From: David Pai<David.Pai@doj.ca.gov>
Sent:Tuesday, February 21, 2023 12:18 PM
To:Strickland,Tony<Tony.Strickland@surfcity-hb.org>; CITY COUNCIL<city.council@surfcity-hb.org>
Cc:Gates, Michael<Michael.Gates@surfcity-hb.org>
Subject: Proposal to Cease Processing Permit Applications under SB 9, et al.
Mayor Strickland and Honorable Councilmembers:
Please see attached.
DAVID PAI I Supervising Deputy Attorney General
Land Use and Conservation Section, Public Rights Division
�'" f,pafaa� °
rw, Department of Justice, Office of the Attorney General
fity 1515 Clay Street, 20th Floor I Oakland, California 94612
Telephone (510) 879-0816 I David.Pai@doj.ca.gov
File drop: https://fx.doi.ca.gov/filedrop/"dKliQ4
CONFIDENTIALITY NOTICE:This communication with its contents may contain confidential and/or legally privileged
information. It is solely for the use of the intended recipient(s). Unauthorized interception, review, use or disclosure is
prohibited and may violate applicable laws including the Electronic Communications Privacy Act. If you are not the
intended recipient, please contact the sender and destroy all copies of the communication.
CONFIDENTIALITY NOTICE: This communication with its contents may contain confidential and/or legally
privileged information. It is solely for the use of the intended recipient(s). Unauthorized interception, review,
use or disclosure is prohibited and may violate applicable laws including the Electronic Communications
Privacy Act. If you are not the intended recipient, please contact the sender and destroy all copies of the
communication.
Meeting Date.___24_12/22.3
Agenda Item No.; ry(p (3 — d707 J
i
4`t.l 01 fh
ROB BONTA State of California ,<. •'
Attorney General DEPARTMENT OF JUSTICE
1515 CLAY STREET,20TH FLOOR
P.O.BOX 70550
OAKLAND,CA 94612-0550
Public: (510)879-1300
Telephone: (510)879-0816
Facsimile: (510)622-2270
E-Mail: David.Pai@doj.ca.gov
February 21, 2023
VIA EMAIL (confirmed by U.S. Regular Mail)
(tony.strickland@surfcity-hb.org; City.Council@surfcity-hb.org)
Mayor Strickland and City Councilmembers
City of Huntington Beach
2000 Main Street
Huntington Beach, CA 92648
RE: Proposal to Cease Processing Permit Applications Under SB 9,SB 10, or ADU-related
State Laws
Dear Mayor Strickland and Honorable Councilmembers:
We write regarding the unlawful action related to SB 9, agendized as Item Number 26 on
the February 21, 2023 regular meeting agenda of the Huntington Beach City Council (File No.
23-1702). That item directs the City Manager to "cease the processing of all applications/permits
brought to the City by developers under SB 9, SB 10, or `State law related' ADU projects, until
the courts have adjudicated the matter(s)."The item also directs the City Attorney to "take any
legal action necessary to challenge SB 9 and SB 10 and the laws that permit ADU's." If adopted,
the directive to cease processing such applications would be in direct violation of SB 9, the
Housing Crisis Act, and may give rise to claims under the Housing Accountability Act. We urge
the Council to decisively reject this unlawful proposal.
A. Prohibiting the Processing of All SB 9 Project Applications Violates State Law
Directing the City Manager to cease processing all applications under SB 9 would violate
not only SB 9 itself, but also the Housing Crisis Act. Depending on the specifics of an SB 9
permit application, it would also violate the Housing Accountability Act.
Under SB 9, local agencies must provide a ministerial approval process for any proposed
housing development consisting of two residential units within a single-family residential zone
(i.e., duplexes), and for any proposed subdivision of an existing parcel within a single-family
residential zone into no more than two parcels. (Gov. Code, §§ 65852.21, subd. (a), 66411.7,
subd. (a).)As the Department of Housing and Community Development(HCD)'s SB 9 Fact
Sheet explains, ministerial review is where the "public official merely ensures that the proposed
development meets all the applicable objective standards for the proposed action but uses no
February 21, 2023
Page 2
special discretion or judgment in reaching a decision."' The statute provides that an SB 9 project
may be denied only if the legislative body finds a project poses significant, quantifiable, direct,
and unavoidable impacts—based on objective, identified written findings—to public health or
safety on a case-by-case,project-specific basis. (Gov. Code §§ 65852.21, subd. (d); 66441.7,
subd. (d); 65589.5, subd. (d)(2).)Nothing in SB 9 permits a City to reject any and all SB 9
projects "to protect the quality and lifestyle" of"well-established single-family neighborhoods."
(Burns Memorandum, February 21, 2023).
Further, we understand that in 2022, the City Council adopted a zoning amendment
establishing objective development and design standards for SB 9 projects. (See City of
Huntington Beach's Zoning Text Amendment 22-002.) Thus, it is unclear how the City Council
can direct its City Manager to cease the processing of any SB 9 applications on the grounds that
any SB 9 project would be inconsistent with the City's current zoning. Moreover, to date,there
does not appear to be any SB 9 permit applications to the City,which makes this misguided and
unlawful proposal even more puzzling.
The Housing Crisis Act of 2019 prohibits the City from imposing any moratorium, or
similar restriction or limitation, on housing development with exceptions limited only to specific
and imminent threats of health and safety. (Gov. Code § 66300, subd. (b)(1)(B)(i).) Any
development policy, standard, or condition enacted on or after January 1, 2020, that does not
comply with the Housing Crisis Act shall be deemed void. (See Gov Code § 663300, subd.
(b)(2).) The proposed action item directs the City Manager to stop processing any and all SB 9
applications until a court adjudicates whatever action the City Attorney may take to challenge SB
9. Such a directive violates the Housing Crisis Act.
Finally, we note that SB 9 permit applications may be protected under the Housing
Accountability Act. (Gov. Code § 65589.5, subd. (h)(2) [defining housing development
projects].) If an SB 9 permit application conforms to the City's own objective development and
design standards, the City may only deny such a project based on findings of certain specified
health and safety threats. Specifically, the HAA requires the City to find that the project poses a
health and safety threat and that those dangers are "significant, quantifiable, direct, and
unavoidable," and that such findings are based on"objective, identified,written ... standards ...
as they existed on the date the application was deemed complete." (Gov. Code § 65589.5, subd.
(d)(2).). Disagreements over whether SB 9 is inconsistent with a city's zoning does not, standing
alone, constitute a specific, adverse impact on public health or safety under the HAA. (Gov.
Code § 65589.5, subd. (d)(2)(A).) Further, a categorical ban of SB 9 applications on the basis
that the City Attorney is being instructed to challenge SB 9 in court is not a valid basis to cease
the processing of those permit applications.
In addition to the state's enforcement powers, housing organizations and aggrieved
applicants have actionable legal rights and remedies under the HAA. We note that the HAA also
See https://www.hcd.ca.gov/docs/planning-and-community-
development/sb9factsheet.pdf
February 21, 2023
Page 3
empowers the court to, upon a finding that a city acted in bad faith, award attorneys' fees and
costs to the prevailing plaintiff or petitioner. (Gov. Code § 65589.5, subd. (k)(1)(a).)As the City
is aware,having recently unsuccessfully defended itself against HAA claims brought by various
nongovernmental organizations, courts have not been shy in awarding these fees and costs
against the City.
B. Prohibiting the Processing of ADU Projects Also Violates State Law
State ADU law requires ministerial approval of, and sets the minimum requirements for,
ADU development, while permitting local governments to establish their own ADU programs.
(See Gov. Code § 65852.2, subd. (a)(1), (e)(1), and (g).)Although the agenda item does not
attempt to define what the phrase "state law related ADU projects"is meant to refer to,there is
no question that a categorical ban of any type of ADU application—"state law related"or
otherwise—violates state law because ADUs are required to be ministerially approved. (Gov.
Code § 65852.2, subd. (a)(3), (b)(1), (e)(1).)Indeed, HCD will issue a Notice of Potential
Violation with regard to this particular aspect of the agenda item.
C. The Directive's Reference to SB 10 is Nonsensical Given that SB 10 is a Voluntary
Mechanism Which the City Has Chosen Not to Invoke
Finally, we note that SB 10 permits—but does not require—cities and counties to enact
ordinances to allow up to 10 dwelling units on any parcel, at a height specified in the ordinance,
if the parcel is located within a transit-rich area or urban inf ill site. (Gov. Code § 65913.5.) It is,
therefore, a voluntary, opt-in upzoning law. Given that the City of Huntington Beach has not
chosen to invoke SB 10, we can discern no reason to direct the City Attorney to challenge SB 10
or the City Manager to stop processing SB 10 project applications.
Agenda Item No. 26 is not only misguided, it is unlawful. As we stated in our letter to
City Attorney Gates just one week ago, our office stands ready to enforce state housing laws if
necessary.
Sincerely,
DAVID PAI
Supervising Deputy Attorney General
For ROB BONTA
Attorney General
cc: City Attorney Michael E. Gates(Michael.Gates@surfcity-hb.org)
DP: dp
Switzer, Donna
From: Fikes, Cathy
Sent: Tuesday, February 21, 2023 12:54 PM
To: Agenda Alerts
Subject: FW: Notice of Potential Violation
Attachments: HuntingtonBeachNOPV-ADU-022123.pdf
From: Heaton, Brian@HCD<Brian.Heaton@hcd.ca.gov>
Sent:Tuesday, February 21, 2023 12:16 PM
To: CITY COUNCIL<city.council@surfcity-hb.org>
Cc:Zelinka, Al<AI.Zelinka@surfcity-hb.org>; David Pai <David.Pai@doj.ca.gov>; Gates, Michael
<Michael.Gates@surfcity-hb.org>; Strickland, Tony<Tony.Strickland@surfcity-hb.org>; Zisser, David@HCD
<David.Zisser@hcd.ca.gov>
Subject: Notice of Potential Violation
Huntington Beach City Council,
Attached please find a Notice of Potential Violation regarding the City's intent to cease processing Accessory Dwelling
Unit (ADU) permits.
Regards,
oaa/01. Brian Heaton,AICP
44.
Senior Housing Accountability Manager, Housing Accountability Unit
Housing and Community Development
or
.'Z, 2020 W. El Camino Avenue, Suite 500 I Sacramento, CA 95833
ec;44rscrR Phone: 916.776.7504
10. f
HOUSING
Is KEY
iidaN
Agenda(tom No, CP -
1
STATE OF CALIFORNIA-BUSINESS,CONSUMER SERVICES AND HOUSING AGENCY GAVIN NEWSOM,Governor
DEPARTMENT OF HOUSING AND COMMUNITY DEVELOPMENT �Q �,Un{rya
DIVISION OF HOUSING POLICY DEVELOPMENT arm ate,
2020 W.El Camino Avenue,Suite 500
Sacramento,CA 95833
(916)263-2911 /FAX(916)263-7453
www.hcd.ca.gov •Cittrapl', .
February 21, 2022
Mayor and City Council
City of Huntington Beach
Via: City.Council(asurfcity-hb.orq
2000 Main Street
Huntington Beach, CA 92648
Dear Mayor Tony Strickland; Mayor Pro Tern Gracey Van Der Mark; and City
Councilmembers Rhona Bolton, Pat Burns, Dan Kalmick, Casey McKeon, and
Natalie Moser:
RE: City's Intent to Cease Processing Accessory Dwelling Unit (ADU) Permits —
Notice of Potential Violation
The California Department of Housing and Community Development (HCD) is aware
that today, the City Council of the City of Huntington Beach (City) will consider a
proposal to "direct the City Manager to cease the processing of all applications/permits
brought to the City by developers under SB 9, SB 10, or State law related to ADU
projects, until the courts have adjudicated the matter(s)."1
The purpose of this letter is to notify the City that refusing to process ADU permits
would be unlawful and in violation of state law, including but not limited to State ADU
Law (Gov. Code, §§ 65852.150, 65852.2, 65852.22) and the Housing Crisis Act (HCA)
of 2019 (Gov. Code, § 66300), and raises concerns under Affirmatively Furthering Fair
Housing (AFFH) requirements (Gov. Code, § 8899.50) and State Housing Element Law
(Gov. Code, § 65583 et seq.).2
1 Agenda for City Council/Public Financing Authority Regular, and Special Meeting of the Housing
Authority, February 21, 2023, Item 26, File # 23-172, available at
https://huntingtonbeach.legistar.com/LegislationDetail.aspx?ID=6028468&GUID=EBF79AC4-60E3-
4BC4-BC9F-34115765B077.
2 In addition, although it is outside the scope of this letter, HCD notes that cessation of processing
applications for proposed SB 9 projects would be in violation of SB 9 itself (Gov. Code, §§ 65852.21,
66411.7) and may constitute a violation of other laws, including but not limited to the HCA (Gov.
Code, § 66300), Housing Accountability Act (Gov. Code, § 65589.5), and Permit Streamlining Act
(Gov. Code, §§ 65905.5, 65913.10, 65940 et seq.). HCD has notified the California Office of the
Attorney General of these potential violations. For more information about SB 9, please refer to
HCD's SB 9 Fact Sheet, available at https://www.hcd.ca.gov/docs/planning-and-community-
development/sb9factsheet.pdf.
Mayor Tony Strickland; Mayor Pro Tern Gracey Van Der Mark; and City Councilmembers
Rhona Bolton, Pat Burns, Dan Kalmick, Casey McKeon, and Natalie Moser
Page 2
State ADU Law
The City Council's action would be an unlawful attempt to preempt the application of
State ADU Law. Specifically, State ADU Law requires local governments to process
ADU applications ministerially. For example, Government Code section 65852.2,
subdivisions (a)(3)(A) and (b)(1), require permitting agencies to approve or deny ADU
applications ministerially and without discretionary review within 60 days of a complete
application's submittal. Under both provisions, "If the local agency has not acted upon
the completed application within 60 days, the application shall be deemed approved." In
addition, Government Code section 65852.2, subdivision (e)(1), states "a local agency
shall ministerially approve an application for a building permit within a residential or
mixed-use zone to create" ADUs that meet specific requirements.
Moreover, the City, upon denying an ADU or junior ADU (JADU) application, must
provide "in writing a full set of comments to the applicant with a list of items that are
defective or deficient and a description of how the application can be remedied by the
applicant" (Gov. Code, § 65852.2, subd. (b)(2)).
Notably, Government Code section 65852.2, subdivision (a)(7), states, "No other local
ordinance, policy, or regulation shall be the basis for the delay or denial of a building
permit or a use permit under this subdivision."3 The City Council's direction to cease
application and permit processing, therefore, cannot preclude the City from acting to
approve or deny a permit to create an ADU.
Housing Crisis Act of 2019
The proposed action would also constitute a violation of various provisions of the HCA.
For example, the HCA prohibits a local government from "enact[ing] a development
policy, standard, or condition" that would have the effect of"[c]hanging the general plan
land use designation, specific plan land use designation, or zoning of a parcel or parcels
of property to a less intensive use or reducing the intensity of land use within an existing
general plan land use designation, specific plan land use designation, or zoning district
in effect at the time of the proposed change, below what was allowed under the land
use designation or zoning ordinances ... in effect on January 1, 2018." (Gov. Code, §
66300, subd. (b)(1)(A).) The statute defines "reducing the intensity of land use" to
include "any other action that would individually or cumulatively reduce the site's
residential development capacity." (Ibid.)
3 For more information about State ADU Law, please refer to HCD's Accessory Dwelling Unit
Handbook (Updated July 2022), available at https://www.hcd.ca.gov/sites/default/files/2022-
07/ADUHandbookUpdate.pdf.
Mayor Tony Strickland; Mayor Pro Tern Gracey Van Der Mark; and City Councilmembers
Rhona Bolton, Pat Burns, Dan Kalmick, Casey McKeon, and Natalie Moser
Page 3
Clearly, refusing to process ADU permits would have the effect of reducing the
residential development capacity of sites across the city, in violation of the HCA.
The HCA also prohibits a local government from "[i]mposing a moratorium or similar
restriction or limitation on housing development ... within all or a portion of the
jurisdiction ... other than to specifically protect against an imminent threat to the health
and safety of persons residing in, or within the immediate vicinity of, the area subject to
the moratorium ...." (Gov. Code, § 66300, subd. (b)(1)(B)(i).) Moreover, the local
government shall not enforce such "a moratorium or other similar restriction on or
limitation of housing development until it has submitted the ordinance to, and received
approval from, [HCD]." (Gov. Code, § 66300, subd. (b)(1)(B)(ii).) If HCD denies
approval, "that ordinance shall be deemed void." (Ibid.)
A resolution directing the cessation of ADU permits would function like an ordinance
doing the same and would therefore be in violation of the HCA. HCD will not approve
such a significant limitation on housing development, and the ordinance will be deemed
void.
Affirmatively Furthering Fair Housing
The City Council's decision to deny ADU permits would be at odds with the City's AFFH
obligations. ADUs can provide more affordable housing opportunities for low- and
moderate-income households and provide access to higher-resource communities,
helping to "overcome patterns of segregation and foster inclusive communities free from
barriers that restrict access to opportunity based on protected characteristics." (Gov.
Code, § 8899.50, subd. (a)(1).)
Indeed, the City's own draft housing element notes that the provision of ADUs is a
strategy for addressing the needs of senior residents, single-parent households, and
extremely low-income households, and 98 percent of the 563 projected ADUs in the
draft housing element are allocated for very low-, low-, and moderate-income
households.4
Housing Element Compliance
Finally, while the City's housing element is currently out of compliance with State
Housing Element Law, on September 30, 2022, HCD found that the draft housing
element met statutory requirement at the time of review. HCD remains eager to see the
City achieve compliance. However, the City Council's direction to cease processing
4 Huntington Beach Housing Element Update (Draft July 2022), p. B-51, available at
https://www.hcd.ca.gov/housing-elements/docs/huntington-beach-6th-draft080122.pdf.
Mayor Tony Strickland; Mayor Pro Tern Gracey Van Der Mark; and City Councilmembers
Rhona Bolton, Pat Burns, Dan Kalmick, Casey McKeon, and Natalie Moser
Page 4
ADU applications would represent a new— and significant—governmental constraint to
the production of housing that would need to be addressed in the housing element, and
impact the adequacy of the sites inventory, jeopardizing the City's pursuit of housing
element compliance.
Indeed, the City's current draft housing element projects the development of 563 new
ADUs in the planning period to meet its regional housing needs allocations and includes
several policies and programs related specifically to ADUs, including Policy 2.76 and
Programs 2D and 2E.7
Conclusion
HCD would like to remind the City that HCD has enforcement authority of State ADU
Law, the HCA, AFFH, and State Housing Element Law, among other state housing
laws. Accordingly, HCD may review local government actions and inactions to
determine consistency with these laws. If HCD finds that a city's actions do not comply
with state law, HCD may notify the California Office of the Attorney General that the
local government is in violation of state law (Gov. Code, § 65585, subd. (j)).
HCD will continue to monitor the City's actions regarding the proposed resolution, and if
the City approves a resolution that violates state housing law, HCD will respond in order
to remedy those violations. In addition, please be advised that the California Office of
the Attorney General is also aware of this matter.
If you have any questions or would like to discuss the content of this letter, please
contact Brian Heaton at Brian.Heaton(a�hcd.ca.gov.
Sincerely,
David Zisser
Assistant Deputy Director
Land Use and Local Government Relations
cc: Al Zelinka, City Manager
Michael E. Gates, City Attorney
David Pai, Supervising Deputy Attorney General
s Id., pp. 4-15, B-48, B-49, B-51.
6 Id., p. 4-4.
Id., p. 4-15.
Moore, Tania
From: Fikes, Cathy
Sent: Monday, February 20, 2023 8:57 PM
To: Agenda Alerts
Subject: FW: Orange Coast League of Women Voters &agenda 26
From: diane nied <sstemc6@gmail.com>
Sent:Saturday, February 18, 2023 6:42 PM
To:CITY COUNCIL<city.council@surfcity-hb.org>
Subject: Orange Coast League of Women Voters&agenda 26
Please find enclosed a letter from the League of Women Voters of Orange Coast, with many members as
residents of Huntington Beach.
This letter addresses concerns regarding Agenda Item 26 at the next Council meeting.
Thank You
Diane Nied
LWVOC Housing/homelessness Action Team
la 2023.2.18 HB Ietr.3
SUPPLEMENTAL
COMMUNICATION
Meeting Date: 42//c9AP3
Agenda item No.; t o9(D(c 3 -/4
LEAGUE OF WOMEN VOTERS
February 18, 2023
To: Huntington Beach Mayor Strickland and City Council Members
From: League of Women Voters of Orange Coast
RE: February 21, 2023 City Council Meeting Agenda Item 26
The League of Women Voters position on housing and meeting basic human needs,
states: "League supports measures to provide State programs to increase the supply of
safe, decent, and adequate housing for all Californians. And supports action at all levels
of government for the provision of affordable housing for all Californians."
The League specifically supported SB 9. The statement from
the California State League of Women Voters, on the bill's
website, is as follows:
https://focus.senate.ca.gov/sb9#support
"We urgently need SB 9 to increase affordable housing
supply in high-opportunity neighborhoods. Too many
Californians — especially first-time homebuyers, low-
and middle-income workers, and people of color — are
locked out of the housing market because of
exclusionary zoning that favors high-income
households. SB 9 will empower local communities to
build more middle-income housing and make the dream
of homeownership a reality for more Californians."
Aliso Viejo, Capistrano Beach, Costa Mesa, Dana Point, Lake Forest, Huntington Beach, Irvine,
Laguna Beach, Laguna Hills, Laguna Niguel, Laguna Woods, Mission Viejo, Newport Beach,
Rancho Santa Margarita, San Clemente, San Juan Capistrano, Seal Beach
Our Orange Coast members, many living in Huntington Beach, support
actions to provide affordable housing, to reduce or eliminate the number of
sheltered or unsheltered residents, and provide needed rental housing.
Benefits from Senate Bill 9:
• The California Housing Opportunity and More Efficiency(HOME)
Act streamlines the process for a homeowner to create a duplex
or subdivide an existing lot.
• This legislation will provide access to more rental and ownership
options for working families who would otherwise be priced out of
neighborhoods.
• The provisions of the Home Act would allow homeowners to
choose to build a duplex on a single family lot, or if the lot is of
sufficient size, to subdivide the lot into two lots and build a duplex
on each lot.
• Accessory Dwelling Units allow multigenerational families to thrive
together.
Therefore, the League of Women Voters of Orange Coast opposes the
proposed action by the Huntington Beach City Council to direct the city
attorney to take any legal action necessary to challenge SB 9 and SB 10.
SB 10 has already been declined by the city, as allowed by the act itself.
Respectfully Submitted,
Executive Committee
League of Women Voters Orange Coast
Aliso Viejo, Capistrano Beach, Costa Mesa, Dana Point, Lake Forest, Huntington Beach, Irvine,
Laguna Beach, Laguna Hills, Laguna Niguel, Laguna Woods, Mission Viejo, Newport Beach,
Rancho Santa Margarita, San Clemente, San Juan Capistrano, Seal Beach
Moore, Tania
From: Fikes, Cathy
Sent: Monday, February 20, 2023 8:57 PM
To: Agenda Alerts
Subject: FW: Feb 21 City Council Agenda Item 26
From: Linda Moon<Isapiro048@gmail.com>
Sent:Saturday, February 18, 2023 4:34 PM SUPPLEMENTAL
To:CITY COUNCIL<city.council@surfcity-hb.org> COMMUNICATION
Subject: Feb 21 City Council Agenda Item 26
Meeting Date: fr//c9o93
Dear Mayor Strickland and City Council Members
Agenda Item No.; moo (22- /3a)
I am a 48 year resident of Huntington Beach and I maintained a law practice here for 40 years
before my retirement. I am writing in opposition to Item 26, Councilmember Burns' request to
authorize the City Attorney to bring legal action to challenge the provisions of SB 9 and 10 and
ADU requirements.
Senate Bill 9—the California Housing Opportunity and More Efficiency(HOME)Act streamlines the process for a
homeowner to create a duplex or subdivide an existing lot. Any new housing created as a result of this bill must meet
a specific list of qualifications that protects historic districts, preserves environmental quality and the look of
communities, and prevents tenants from being displaced. This legislation will provide access to more rental and
ownership options for working families who would otherwise be priced out of neighborhoods. You have noted
yourself that Huntington Beach is 95% built out. There is little room or resources to build affordable housing. Yet
there continues to be a need for housing our workforce and the grown children we raised here. The legislation creates
the ability for the city to increase housing in existing neighborhoods, without changing their character. The
provisions of the Home Act would allow homeowners to choose to build a duplex on a single family lot, or if the lot
is of sufficient size, to subdivide the lot into two lots and build a duplex on each lot. Building two modest units on a
6,000 foot lot or even a 3000 foot lot is less impactful than allowing a 4000 foot mansion on a 2500 square foot lot
as occurs often in Huntington Beach. This legislation will allow more families to reside in low-density
neighborhoods, which are currently financially prohibitive for them.
Senate Bill 10 authorizes a local government to voluntarily adopt an ordinance to zone any
parcel for up to 10 units of residential density per parcel, at a height specified in the ordinance,
if the parcel is located in a transit-rich area or an urban infill site, as those terms are
defined. The City has no obligation to utilize the provisions of SB 10. There is, therefore, no
reason to challenge its provisions.
Accessory Dwelling Units (authorized by prior separate legislation) provide needed housing for family members,
students, the elderly, in-home healthcare providers, the disabled, and others, at below market prices within existing
neighborhoods.
Duplexes, Quadplexes and ADU's will not solve Huntington Beach's housing crisis but they will create benign tools
to reduce the need for affordable housing. Like previous litigation challenging housing mandates, lawsuits to
challenge these statutes would be futile and costly.
1
Sincerely,
Linda Sapiro Moon
(714) 381-8425
5861 Liege Dr.
Huntington Beach, CA 92649
2
Moore, Tania
From: Fikes, Cathy
Sent: Monday, February 20, 2023 9:26 PM
To: Agenda Alerts
Subject: FW: City Council Meeting
From:vanessaweb@aol.com <vanessaweb@aol.com>
Sent: Monday, February 20, 2023 3:06 PM
To:CITY COUNCIL<city.council@surfcity-hb.org>
Subject:City Council Meeting
Dear Members of City Council,
We are unable to attend the meeting, but we want our voices to be heard and counted.
Item 23. We support the flying of the Pride flag as a symbol of the diversity and support for all. We feel it
encourages visitors and businesses.
Item 26. We do not agree with Huntington Beach fighting compliance with the state mandate for Regional
Housing Needs Allocation. We need people from all income levels to work in HB. We can't expect them to
commute for hours to work for minimum wage. Everyday on social media, people are pleading, asking for
referrals for homes or apartments. Many of them have lived here all their lives. Please do not waste your time
and our money by fighting this.
Item 27. It is appropriate for the council to say the Pledge of Allegiance. It is not necessary to have an
invocation which can be exclusionary.
Thank you.
Sincerely,
Vanessa and Jeff Webster
19421 Hansen Ln.
Sent from the all new AOL app for iOS SUPPLEMENTAL
COMMUNICATION
Meeting Date: *49(20-
Agenda Item No.; ago 163 '/?e2)
i
Moore, Tania
From: christopher.j.varga@gmail.com
Sent: Tuesday, February 21, 2023 12:22 PM
To: CITY COUNCIL; supplementalcomm@surfcity-hb.org
Subject: City Council Meeting 2-21-23
Huntington Beach City Council Meeting 2/21/23
My comments on the following Agenda Items:
Agenda Item 23 (23-165): Flags on Government Property
I oppose this ordinance as it will have and is having a negative impact on local businesses and puts Huntington Beach in
a negative light. Huntington Beach is a tourist destination and by flying flags that make people feel welcome should be
displayed. We as a city should promote inclusion and not exclusion. Support Local Businesses that depend on all people
from outside the city to come and spend their free time and money. This ordnance does not make Huntington Beach
appear to be a place that all are welcome. Does this City Council listen to the public Comments? With the vast majority
opposing this ordnance why doesn't this council listen? Are public comments not valued or are they something to
ignore?
Agenda Item 26(23-172): ADU Permits
I oppose this attempt to stop processing ADU permits. This is once again the CC attempt to not comply with the State of
California on housing solution. This will cost the tax payers of Huntington Beach fighting a no win battle the state of
California. Please stop this costly battle with the State.
General Comments:
I thought the Huntington Beach City Council was a non-partisan public office. Will the so called conservative council
members ever break ranks? Or is it an "all for one and one for all" type mentality? I'm hoping that as some point, one
of the recently elected council member will break away for a vote or two. Maybe the city council should be partisan so
we have a better idea who we are voting for in the future. I just what to point out the 4 recently elected city council
members roughly were vote in by approximately 20,000 votes each. That about 10%of the city population. Please keep
the other 90%of the city population in mind when you make decisions that affect all of us.
Sincerely,
Chris Varga
40+year resident of Huntington Beach
S UM:7
Meeting Date: . .1 3
Agenda Item Nt.° � a3 O 7a
Switzer, Donna
From: Fikes, Cathy
Sent: Tuesday, February 21, 2023 12:51 PM
To: Agenda Alerts Sk 7,4`, ^"�w37; L
r
Subject: FW: February 21 2023 meeting C-Ci: 4. a � ` dON
Meeting Date: e.// -1 /23
From:Annilise Flanagan-Frankl<anniliseff@gmail.com> Agenda Item No.; (023 -17-2)
Sent:Tuesday, February 21, 2023 11:17 AM
To:CITY COUNCIL<city.council@surfcity-hb.org>
Subject: February 21 2023 meeting
I am unable to attend the meeting in person and wish to make a public comment on the following agenda items.
#23. I OPPOSE this item. HB needs to demonstrate it is an inclusive comment.
#24. This needs more information
#25. This needs more information.
#26. I OPPOSE this item. State law applies to ALL communities.
#27. I OPPOSE this item. To be an inclusive community the separation of church and state should not intersect.
This opens the door to unnecessary litigation.
Annilise Flanagan-Frankl
Annilise M. Flanagan-Frankl, M.A.
CounselingPsychologist
Nationally Certified School
Psychologist
Remember - the past is over, the future is a mystery,and today is a gift. That is why it
is called the PRESENT.
Make today count.
Call: 847-226-3119
i
Switzer, Donna
From: Fikes, Cathy
Sent: Tuesday, February 21, 2023 1:23 PM
To: Agenda Alerts
Subject: FW: City Council Meeting 2-21-23
From: christopher.j.varga@gmail.com<christopher.j.varga@gmail.com>
Sent:Tuesday, February 21, 2023 12:22 PM
To: CITY COUNCIL<city.council@surfcity-hb.org>; supplementalcomm@surfcity-hb.org
Subject:City Council Meeting 2-21-23
Huntington Beach City Council Meeting 2/21/23
My comments on the following Agenda Items:
Agenda Item 23 (23-165): Flags on Government Property
I oppose this ordinance as it will have and is having a negative impact on local businesses and puts Huntington Beach in
a negative light. Huntington Beach is a tourist destination and by flying flags that make people feel welcome should be
displayed. We as a city should promote inclusion and not exclusion. Support Local Businesses that depend on all people
from outside the city to come and spend their free time and money. This ordnance does not make Huntington Beach
appear to be a place that all are welcome. Does this City Council listen to the public Comments? With the vast majority
opposing this ordnance why doesn't this council listen? Are public comments not valued or are they something to
ignore?
Agenda Item 26(23-172): ADU Permits
I oppose this attempt to stop processing ADU permits. This is once again the CC attempt to not comply with the State of
California on housing solution. This will cost the tax payers of Huntington Beach fighting a no win battle the state of
California. Please stop this costly battle with the State.
General Comments:
I thought the Huntington Beach City Council was a non-partisan public office. Will the so called conservative council
members ever break ranks? Or is it an "all for one and one for all" type mentality? I'm hoping that as some point, one
of the recently elected council member will break away for a vote or two. Maybe the city council should be partisan so
we have a better idea who we are voting for in the future. I just what to point out the 4 recently elected city council
members roughly were vote in by approximately 20,000 votes each. That about 10%of the city population. Please keep
the other 90%of the city population in mind when you make decisions that affect all of us.
Sincerely,
Chris Varga
40+year resident of Huntington Beach
Sir
Meeting Date: --
Agenda Item No.;, 26 ( 23- 1 7-2)
i