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File #: 23-227 MEETING DATE: 3/7/2023 Am)
Item Submitted by Councilmember Kalmick - Continue Processing SB9 and ADU Applications
to Avoid Conflict with State Law
Direct the City Manager to process SB9 type lot subdivision applications and ADU
applications while litigation proceeds to come back into compliance with State Law.
City of Huntington Beach Page 1 of 1 Printed on 3/2/2023
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CITY OF HUNTINGTON BEACH
CITY COUNCIL MEETING—COUNCIL MEMBER ITEMS REPORT
TO: THE HONORABLE MAYOR AND CITY COUNCIL
FROM: DAN KALMICK, CITY COUNCILMEMBER
DATE: MARCH 7, 2023
SUBJECT: CONTINUE PROCESSING SB9 AND ADU APPLICATIONS TO AVOID CONFLICT WITH
STATE LAW
On February 22, 2023, the City of Huntington Beach received a notice of violation from the
California Department of Housing and Community Development (HCD) stating that because of
Councilmember Burns' item regarding SB9 and ADUs and the direction of the Council to staff to
stop processing applications for ADUs and SB9 type lot subdivisions,we were in violation of State
Housing Law and that we have until March 8, 2023 to rectify and respond.
While I disagree with suing the State on these housing policies, if we must,we should do so under
protest, and in compliance with State Law, not directing staff to violate State Law.
I therefore recommend that the City Council direct the City Manager to forthwith continue
processing SB9 type lot subdivisions (of which we have had zero applications) and applications
for ADUs to remedy the conflict with State Law while continuing pursue its already established
direction to find a legal remedy.
It might be worth noting that the City derived approximately $350,000 in revenue from ADU
applications in 2022.
RECOMMENDED ACTION
Direct the City Manager to process SB9 type lot subdivision applications and ADU applications
while litigation proceeds to come back into compliance-with State Law.
Moore, Tania
From: cherivatkinson@aol.com
Sent: Monday, March 6, 2023 11:25 AM
To: supplementalcomm@surfcity-hb.org; cherivatkinson@aol.com
Subject: Opinion on Items 12, 13, 16, and 18
Hi,
This is Cheri Atkinson LCSW, and a long term resident of Huntington Beach.
I ask you to vote
1. Item 12- Flag Ordinance- I ask you to vote NO-This has an negative impact on our LGBTQ residents in our community,
and sends an unwelcoming message, and hurts the image of Huntington Beach.
2. Item 13 - Behavior in Public Structures- I ask you to vote NO. I have done the Point in Time count, and many of our
homeless residents may stay there to escape the elements, to stay alive, until they are housed. THIS AS WELL AS ITEM
14, REFLECTS THAT A POLICING MODEL, OUT OF SIGHT< SOLVED THE HOMELESS MODEL, and it is a
nonhumanitarian approach.
3. Item 16- Builder's Remedy Ordinance- I ask you to vote NO on this. By not approving the Housing Element, and the
Builder's Remedy Ordinance, you are saying No, to affordable housing for those who work here, the disabled, seniors, the
disabled, and our children.
4. Item 18-Allowing ADU applications- I ask you to vote Yes-This allows for affordable housing, for seniors, young
residents, three generational families. It is a win for so many.
Please acknowledge that you received and read this.
Cheri Atkinson LCSW
cherivatkinson@aol.com
SUPPLEmr NTAL
COMMUNICATION
Meeting Date; 3/2/ 6 2 3
Agenda Ham No.; �g
Moore, Tania
From: Fikes, Cathy
Sent: Monday, March 6, 2023 11:21 AM
To: Agenda Alerts
Subject: FW: SB9 &ADU Legal Challenge
From:Christian Velasquez<chris.truespacedesign@gmail.com>
Sent: Monday, March 6, 2023 9:25 AM
To:CITY COUNCIL<city.council@surfcity-hb.org>
Subject:SB9&ADU Legal Challenge
Good morning,
I would like to find out more information on why the city is challenging SB9 & ADU's. What is the city trying
to achieve with this challenge and what is the future of ADU & SB9 in the city of Huntington Beach. Any
information you can provide me would be greatly appreciated.
Thank you,
Christian Velasquez
562-256-4227
SUPPLEMENTAL
COMMUNICATION
Meeting Date: 1/1O2oa 3
1 Agenda Item No.:
Moore, Tania
From: Fikes, Cathy
Sent: Monday, March 6, 2023 6:05 PM
To: Agenda Alerts
Subject: FW:Vote YES on Agenda Item 18
From: Lynne Deakers<Icdeakers@gmail.com>
Sent: Monday, March 6, 2023 3:31 PM
To:CITY COUNCIL<city.council@surfcity-hb.org>
Subject:Vote YES on Agenda Item 18
Please direct the City Manager to continue processing SB9 ADU permits. This is a wonderful way to encourage
Huntington Beach families to stay together and support each other through these trying economic times.
Providing responsible allowances to facilitate the construction of granny flats will only enrich the community
we have and lessen the burden for the younger generation, who in turn can care for their parents as they become
more senior.
Lynne Deakers
40 Year Resident Huntington Beach
SUPPLEMENTAL
COMMUNICATION
Meeting Date:
Agenda Item No., 4-/g a3-o2.)
i
Moore, Tania
From: Fikes, Cathy
Sent: Tuesday, March 7, 2023 9:09 AM
To: Agenda Alerts
Subject: FW: City Council Meeting March 7, 2021 - Kalmick Item 23-227 SB 9 &ADU's
From: K Carroll<kcrissie7@gmail.com>
Sent:Tuesday, March 7, 2023 7:18 AM
To:CITY COUNCIL<city.council@surfcity-hb.org>
Subject: Fwd: City Council Meeting March 7, 2021- Kalmick Item 23-227 SB 9 &ADU's
Vote No.
NO MORE HIGH DENSITY NOW! Kalmick, you have never listened to the residents. Perfect example. I and
my family and neighbors want California's best City Attorney to 'Zig' with his legal expertise.
GO GATES GO!!!
Freeze the application process NOW be we know that you ,KALMICK, and your cohorts will attempt to create
an influx of applications before Michael Gates wins. The citizens have learned a lot about you over your term
that is not beneficial to you.
Thank you.
Kris Carroll
SOPPSr.:«
'M NT4L
h
COOMUNICATION
Meeting Date_/ 2 1
Agenda item NA. 8" 23. A?
Switzer, Donna
From: K Carroll <kcrissie7@gmail.com>
Sent: Tuesday, March 7, 2023 7:15 AM
To: supplementalcomm@surfcity-hb.org
Subject: City Council Meeting March 7, 2021 - Kalmick Item 23-227 SB 9 &ADU's
Vote No.
NO MORE HIGH DENSITY NOW! Kalmick, you have never listened to the residents. Perfect example. I and
my family and neighbors want California's best City Attorney to 'Zig' with his legal expertise.
GO GATES GO!!!
Freeze the application process NOW be we know that you ,KALMICK, and your cohorts will attempt to create
an influx of applications before Michael Gates wins. The citizens have learned a lot about you over your term
that is not beneficial to you.
Thank you.
Kris Carroll
SUPPLEMENTAL
COMMUNICATION
Meeting Date: t3/ 7.2 z
Agenda item No.;, / (.23 — 7")
1
Moore, Tania
From: Fikes, Cathy
Sent: Tuesday, March 7, 2023 1:48 PM
To: Agenda Alerts
Subject: FW:tonights meeting
From: Mary Ann Celinder<macelinder@gmail.com>
Sent:Tuesday, March 7, 2023 1:36 PM
To:CITY COUNCIL<city.council@surfcity-hb.org>
Subject:tonights meeting
item 12 We are strongly against the new flag ordinance being voted on tonight. The council is making a
mistake, if passed, you can expect other companies to pull out of having events in a homophobic city.
item 16 follow the state law, it's going to cost us stupid money to fight construction of affordable housing.
item 17 we really like the no cars on main street and will miss the outdoor dining.
item 18 we are in favor of this item to continue to process adu permits.
Karl and Mary Ann Celinder
Celinder's Glass Design
21341 Fleet Lane
Huntington Beach Ca 92646
PPLYW
CONZLiitiCATION
Meeting Date:
1 Agenda Item No..
Moore, Tania
From: Dylan Casey <dylan@calhdf.org>
Sent: Tuesday, March 7, 2023 4:01 PM
To: CITY COUNCIL;Van Der Mark, Gracey; Burns, Pat; McKeon, Casey; Kalmick, Dan; Moser,
Natalie; Bolton, Rhonda; Strickland, Tony; supplementalcomm@surfcity-hb.org
Cc: Gates, Michael; Courtney Welch; Nick Eckenwiler; Greg Magofna
Subject: Written Comment on Agenda Items 16 and 18
Attachments: Huntington Beach Letter 3-7-23.pdf
Dear Huntington Beach City Council,
I am submitting the attached letter as public comment on Items 16 and 18 on the Agenda for tonight's meeting.
Thank you for your consideration.
Sincerely,
Dylan Casey
Executive Director
California Housing Defense Fund
L
1
iii0DF
March 7, 2023
City of Huntington Beach
2000 Main Street
Huntington Beach,CA 92648
By Email:City.Council@surfcity-hb.org;Gracey.VanDerMark@surfcity-hb.org;
Pat.Burns@surfcity-hb.org;Casey.McKeon@surfcity-hb.org;Dan.Kalmick@surfcity-hb.org;
Natalie.Moser@surfcity-hb.org;Rhonda.Bolton@surfcity-hb.org;
Tony.Strickland @ surfcity-hb.o rg
CC:Michael.Gates@surfcity-hb.org
To the Huntington Beach City Council and City Attorney:
Huntington Beach is a city located in California.Consequently,it must follow California state
law. In light of recent City actions,the California Housing Defense Fund("CalHDF")writes to
remind the City of this fact.Specifically:
1. Item Number 26 at the February 21 meeting of the Council (File No. 23-172),which
passed by a 4-3 vote,violates SB 9, state law governing accessory dwelling units,the
Housing Crisis Act,and the Housing Accountability Act.
2. Zoning Text Amendment Number 2023-001 (File No. 23-135), which the Planning
Commission recommended to the City Council on February 14 by a 4-2 vote,violates
the Housing Accountability Act.
CalHDF urges the Council to reconsider its vote on Item Number 26 from the February 21
meeting and approve Item Number 18 (File No.23-227)at tonight's meeting.Ca1HDF further
urges the Council to reject Zoning Text Amendment Number 2023-001,set as Item Number
16(File No.23-226)on the agenda for tonight's meeting.
Directing City Staff to Cease Processing SB 9 and ADU Applications Violates
State Law
Item Number 26 at the February 21 meeting of the Council directs City staff not to process
new applications for SB 9 projects or accessory dwelling units(ADUs).This violates state law
on several counts.
First, it violates SB 9. Under SB 9,cities in California must ministerially approve applications
for urban lot splits and housing developments of up to two units. (Gov. Code §§ 65852.21(a),
66411.7(a).)A city may reject an application only by making a written finding that approving
360 Grand Ave#323,Oakland 94610
hi@calhdf.org
it would have "a specific, adverse impact [...] upon public health and safety or the physical
environment." (Gov. Code §§ 65852.21(d), 66411.7(d).) Item Number 26 did not make findings
sufficient to satisfy SB 9's criteria for rejecting lot split or two-unit residential development
applications (nor could it have,since SB 9 makes clear these findings must apply to a specific
SB 9 application and cannot justify a blanket ban on such applications). Huntington Beach
remains obliged to approve SB 9 applications ministerially,per the plain text of SB 9.
Second, Item Number 26 at the February 21 Council meeting violates state law governing
ADUs. State ADU law sets minimum standards for ADUs and requires that, so long as they
meet these standards, they must be ministerially approved. (Gov.Code§ 65852.2(a)(3),(b)(1),
(e)(1).) This leaves no room for Huntington Beach to categorically reject ADU proposals, as
Item Number 26 attempts to do, and the City's action here clearly runs afoul of state ADU
law.
Third, Item Number 26 at the February 21 Council meeting violates the Housing Crisis Act
(HCA).The HCA prevents cities from"[i]mposing a moratorium or similar restriction L...] on
housing development" unless a city first receives authorization from the Department of
Housing and Community Development (HCD). (Gov. Code § 66300(b)(1)(B).) Halting
processing of all SB 9 and ADU applications is certainly a moratorium on residential housing
development. Hence, without HCD's authorization, which the City has not received,
approving Item Number 26 represents a clear transgression of the HCA.
The HCA also makes it illegal for cities to "reduc[e] the intensity of land use [...] below what
was allowed [...] on January 1, 2018." (Gov. Code § 66300(b)(1)(A).) The statute defines "less
intensive use" quite broadly, and it would certainly include Huntington Beach's action here,
at least with respect to ADUs. (Id.) Hence,on this point,too,the City has acted illegally under
state law.
Finally, Item Number 26 at the February 21 Council meeting violates the Housing
Accountability Act(HAA).The HAA mandates approval of any housing development project
that complies with all applicable objective standards in effect when the application is
complete. (Gov. Code § 65589.5(j)(1).) The only way a city can reject such a project is by
making written findings that the project would have "a specific, adverse impact upon the
public health or safety" that cannot be mitigated. (Id.) To the extent that the City's action
directs staff to reject ADU and SB 9 applications categorically and without making specific
findings of a public health and safety impact,it violates the HAA and is hence illegal.
CalHDF urges the Council to approve Item Number 18 (File No.23-227)at tonight's meeting,
which would direct staff to resume processing SB 9 and ADU applications, as state law
requires.
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Banning the Builder's Remedy Violates State Law
Huntington Beach may escape the builder's remedy by adopting a compliant housing
element to its general plan. It may not escape the builder's remedy by banning it.All local
governments in California are required to periodically update the housing element of their
general plan. (Gov. Code § 65588(b).)The updates to the housing element must meet certain
requirements, including accommodating needed housing growth for households of varying
income levels. (Id. at subd. (d).) If a city fails to update its housing element by the statutory
deadline,or adopts a housing element that does not satisfy these requirements,it is exposed
to the builder's remedy. This strips the city of its power to reject applications for housing
developments that meet certain affordability requirements, even if the proposed housing
development would violate local zoning rules. (Gov. Code § 65589.5(d)(5).) The builder's
remedy pushes cities to properly update their housing elements by threatening them with a
loss of control over development if they do not,and it helps ensure cities that fail to properly
update their housing elements nonetheless produce adequate new housing supply.
There is no part of the HAA or any state housing law allowing cities to"opt out."If there were,
the law's entire purpose would be frustrated. Thus, Zoning Text Amendment Number
2023-001, set as Item Number 16 (File No. 23-226) on tonight's meeting agenda, would
violate the HAA if adopted. It would also be futile:the builder's remedy would continue to be
available to property owners in Huntington Beach until the City adopts a compliant housing
element. All that the proposed zoning text amendment would accomplish would be to
expose the City to litigation.CalHDF urges the Council to reject it.
Huntington Beach's Status as a Charter City Does Not Exempt It from State
Housing Laws
California's housing crisis is a statewide problem, extending far beyond any one city's
boundaries. Thus, the state legislature has applied state housing laws to all cities within the
state, including charter cities. (SB 9, § 4; SB 330, § 14; Gov. Code § 65852.2(j)(5).) State courts
have upheld the application of state housing law to charter cities. (See California Renters
Legal Advocacy and Education Fund v. City of San Mateo (2021) 68 Cal.App.5th 820, 846-54.)
Huntington Beach therefore cannot rely on its status as a charter city to escape the
requirements of state housing law,and its attempt to do so is unavailing.
Huntington Beach should know this.In CalHDF's(then known as the California Renters Legal
Advocacy and Education Fund) previous lawsuit against the city, the Superior Court of
Orange County rebuffed the City's argument that the HAA clashed with the state
constitution in its application to charter cities. (California Renters Legal Advocacy and
Educational Fund v. City of Huntington Beach (Super. Ct. Orange County, 2021, No.
30-2020-01140855-CU-WM-CJC).) Issue preclusion, moreover, bars the City from
relitigating this point in future lawsuits with Ca1HDF.
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t ►
CalHDF, formerly known as CaRLA, is a 501(c)(3) non-profit whose mission includes
advocating for increased access to housing for Californians at all income levels. You may
learn more about CalHDF at www.calhdf.ore.
Sincerely,
Dylan
Executive Director
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