Letter to the Editor:
I would like to thank the Council for its unanimous decision to deny the Pickwick SB35 application on April 18, 2022. I believe the Council’s action was correct, is supported by the City’s planning documents, and is in the best interest of the City.
Oddly, SB35 applies to jurisdictions that have not meet their Regional Housing Needs Assessment (RHNA) by-income-level housing production targets, yet SB35 essentially mandates approval of developments that do not meet a jurisdiction’s RHNA by-income-level housing production targets. SB35, therefore, both exacerbates and promotes a jurisdiction’s on-going inability to meet income-level housing production targets while removing valuable land as potential sites for developments that do meet or exceed RHNA targets.
I urge the City Council to stand firm in its denial of the Project and to not yield to bullying by the State, on the part of developers, in the bogus name of “affordable housing” production. Only 10 of the 96 units included in the Pickwick Project (or 10.4%) would be reserved for lower-income households; 90 percent of the units would have no income restriction and are thus likely to be above moderate-income units. The Pickwick Project thus works against the City’s ability to meet its RHNA Target of 61.3% of new housing production being affordable units (29.1% very-low income, 16.2% low-income and 16.1% moderate-income units), as detailed in Table 1-30 of the City’s 2021-2029 Draft Housing Element. The Pickwick Project is not even consistent with the goal set for the City under State RHNA law of 16.2% of new units being low-income affordable units, yet the State is bullying the City in an effort to force Project approval.
It is a mystery to me why the State is requiring ministerial approval of projects with such a low requirement for affordable units and which do not meet or exceed RHNA targets, unless the reason is to benefit developers at the expense of housing affordability, local land use control, and the ability of cities to ensure that development is compatible with existing and planned infrastructure and public services capacity. It is my hope that the City, media, and public see SB35 for what it appears to be – a giveaway to developers, rather than affordable housing legislation.
The California Department of Housing and Community Development (“HCD”) alleges in its May 24, 2022 letter that the City of Burbank (“City”) violated the Streamlined Ministerial Approval Process under Section 65913.4 of the Government Code, more commonly known as SB35, when the Council considered the Pickwick Project and reached the conclusion that the Project was not eligible for special SB35 treatment. I believe the HCD letter is incorrect in its allegations for a number of reasons.
First, the HCD letter says that the Burbank2035 General Plan designates the Project site as Rancho Commercial. As specified in Burbank Resolution No. 23, 927 approving General Plan Amendment No. 93-1 for the Rancho Master Plan (5/11/1993), and detailing Rancho Master Plan changes to the General Plan Land Use Element, Commercial-Recreation is the General Plan land use designation specified for the Pickwick site, not Rancho Commercial.
Second, the HCD letter says that the City’s zoning and General Plan land use designation for the site are in conflict. However, according to City’s Zone Map, the Pickwick site is zoned Commercial-Recreation (C-R) which is consistent with the Rancho Master Plan’s land use designation for the site of Commercial-Recreation. As explained on page 3-20 of the Burbank2035 General Plan:
A specific plan is a planning tool authorized by California law that implements a general plan by establishing detailed development goals and policies for a specific geographic area. In Burbank, the term “specific plan” has been applied generally to any planning document that focuses on a particular area of the city. Burbank’s specific plans include the Media District Specific Plan (1991), Rancho Master Plan (1993), and Burbank Center Plan (1997). Exhibit LU‐2 shows each of these plan areas. All of these plans were adopted as part of the Land Use Element and provide more detailed goals and policies for the area covered by Burbank2035 than what is found in the rest of the element. (Emphasis added).
It is thus clear that the Rancho Master Plan was adopted into the General Plan and it governs allowable land uses within the Rancho Master Plan area. The Rancho Master Plan and it’s implementing ordinance has thus established both the General Plan designation and zoning for the Project site as C-R. There is no conflict between the General Plan designation and zoning. Nowhere in the Rancho Master Plan does it say that the land use designation for C-R zoning is Rancho Commercial. A reading of the Resolution adopting the Rancho Master Plan into the General Plan supports the fact that the General Plan Land Use Designation is C-R.
Third, HCD says that residential uses are allowed under the City’s General Plan for the Project site. However, as explained in the Rancho Master Plan which, as previously noted both herein and in the City’s General Plan, is part of the City’s Land Use Element:
The Commercial Recreation (CR) Zone is intended for recreational uses which are privately owned and operated for commercial purposes. [Added by Ord. No. 3343, eff. 6/26/93.].” The C-R uses are as set forth in Section 10-1-502.
Pursuant to Section 10-1-502 of the City’s Municipal Code, no residential uses are allowed in the C-R zone. Thus, the General Plan Land Use Element, in the form of the Rancho Master Plan’s reference to Section 10-1-502, precludes residential development under the C-R land use designation.
In addition, as specified in Ordinance 3343 (5/18/1993) attached to the Resolution, which created the Rancho Master Plan Zones, permitted uses in the Commercial-Recreation (C-R) Zone (Section 31-2437) do not include residential uses, residential uses are not an allowable conditional use (Section 31-2438), and residential uses are expressly a prohibited use (Section 31-2440) under C-R zoning.
Fourth, the HCD letter argues that the Project is subject to the objective standards for the Rancho Commercial land use designation, because the zoning and Land Use Designation for the site are in conflict, and that because the Project is consistent with the allowable residential density for Rancho Commercial under the General Plan, the Project meets objective standards. However, as established above, the General Plan and zoning for the site is Commercial Recreation, the General Plan land use designation and zoning do not conflict, and the General Plan land use designation and zoning do not allow for residential development on the Project site.
Fifth, HCD argues that the City’s intent to allow residential uses on the site is evidenced by the City’s inclusion of 921-1001 W. Riverside Drive (the Pickwick Project site) in its Housing Element sites inventory. However, while the Project site was first included on a list of pending projects in the November 2021 version of the Draft 2021-2029 Housing Element because there was a pending development application for the site, it is not included in the 2021-2029 Housing Element Sites Inventory. Similarly, it is not included on the Sites Inventory in the 2014-2021 Housing Element. The City’s 5th and 6th cycle Housing Elements do not demonstrate an intent to allow residential development on the Project site.
Additionally, HCD has ignored the fact that the Project is not consistent with objective design review standards adopted by the City, including standards articulated by the City in its Resolution denying the Project. Gov. Code, Section 65913.4 subd. (a)(5) specifies that one of the conditions that a project must meet to be eligible for SB35 streamlined ministerial approval is that it must be consistent not only with objective zoning standards, but also any objective subdivision standards and objective design review standards in effect at the time that the development application was submitted. On June 16, 2020, the City of Burbank adopted the Complete Streets Plan, which aims to transform the Burbank2035 General Plan’s street and streetscape goals and policies into an actionable plan for implementation. As noted in the City’s Resolution No. 22-29,310 denying the Project, the Project applicant did not submit a Notice of Intent to submit a SB35 application until July 1, 2021, more than a year after the City’s adoption of the Complete Streets Plan. There has been no showing that the Project complies with the objective standards established in the Complete Streets Plan, particularly with respect to a Project located on an “Equestrian Priority Street.” During public comment, evidence was provided by others of the Project’s inability to comply with a number of objective standards.
HCD’s conclusion that the City is in violation of SB35 is therefore appears to be based on a number of faulty premises. It is my hope that Council will not be intimidated by threats, or by fallacious conclusions that are not supported by the City’s adopted planning documents. It is also my hope that Council will continue to fight against any efforts to force the City to approve a Project which is inconsistent with the General Plan, demonstrably not subject to SB35, contrary to the City’s vision as articulated in its planning documents, and which will provide affordable housing at levels well below City goals and targets.
It is also my hope that the City, pursuant to Government Code Section 65913.4 (4)(B)(i)(I) and SB35, will move with haste to develop and adopt a local ordinance that requires, when it comes to SB35 projects, that greater than 10 percent of the units be dedicated to housing affordable to households making below 80 percent of the area median income, in order for a project to qualify for SB35 streamlining. SB35 specifies that SB35 projects are required to comply with greater affordability requirements than this SB35 requirement, if adopted by a local jurisdiction via a local ordinance. If developments are to obtain the benefits of SB35, they should be required to provide affordable housing at levels that further the City’s housing goals. Specifically, at a minimum, the City should adopt an ordinance that requires that any SB35 or other such projects subject to Government Code Section 65913.4 produce housing at restricted income levels consistent with the City’s RHNA affordability targets (i.e provide a minimum of 61.3% affordable units). Preferably, any such local ordinance would require that any such projects be 100 percent affordable to be eligible for streamlined ministerial review, in order to further the City’s ability to meet its RHNA targets and to sunset SB35’s applicability to the City.
I very much appreciate the Council’s efforts to stand up for the quality of life in Burbank in the face of the State’s efforts to usurp sensible land use planning and local land use controls, and for the City’s far more sensible efforts to promote the production, provision, and funding of affordable housing in the City.