The URL can be used to link to this page

Home My WebLink About12.19.13-Work Session�S�877!!9 City of Sanford Planning and Zoning Commission Thursday — December 19, 2013 City Commission Chambers Sanford City Hall 1 Floor 300 North Park Avenue, Sanford, Florida WORK SESSION AGENDA 10 AM Call to Order Moment of Silence Pledge of Allegiance City Attorney Discussion Briefing Items • SunRail • 1 -4 Ultimate Project • Seminole Way Staff Reports Commissioners Reports Adjournment In accordance with the Americans with Disahilities Act, persons with disabilities needing assistance to participate in any of these proceedings should contact the City Clerk at 407.688.5010 at least 48 hours in advance of the meeting. Advice to the public: If a person decides to appeal a decision made with respect to any matter considered at the above meeting or hearing, he or she may need a verbatim record of the proceedings, including the testimony and evidence, which record is not provided by the City of Sanford. (FS 286.0105) Page 1 of 1 Minutes Planning and Zoning Commission Work Session —December 19, 2013 - 10 AM City Commission Chambers City Hall, Sanford, Florida Members Present Jerry Mills, Chairman Steve Esler, Vice Chairman Michael Loader Joshua Dane, alternate Member Absent Michael Padgett - excused Lindsay Oyewale - excused Carsandra Buie - excused Eddie Green Others Present Lonnie Groot, Assistant City Attorney Russ Gibson, Director of Planning and Development Services Mary Muse, Administrative Coordinator Mr. Mills called the training session to order at 10:07 AM. Moment of ,Silence Pledge of Allegiance City Attorney Discussion Mr. Groot gave a PowerPoint Presentation regarding a court case associated with land use changes. Briefing Items Mr. Gibson gave a presentation/information on the following: • SunRail I -4 Ultimate Project Seminole Way Staff Report Mr. Gibson reported staff is conducting interviews with the candidates for the vacant planner position, advised those present the next regular scheduled meeting will be January Ith, an update on Mr. Padgett's request will be given at the next meeting, and thanked the board members for their time and service to the City. Adjournment There being no further business, the training session adjourned at i 1.41 Aii4 .... .�: ...% > ..w. > .�.. ... �� .. . I NSTITUTE FOR LOCAL GOVERNMENT REST PRACTICES FOR MAKING INFORMED LAND USE DECISIONS Primacy C0110 - ibUtors J I Bill HiM ins, Institute Staff Additional Contdbtlfions JoAnne Speers and Charles Siutmnerell, Institute Staff Additiowd Review Provided by Gary Binger, Land Use Consultant Rochelle Browne, Richards, Watson & Gershon George R, Buell, City of San Clemente Will Caplinger, City of Crescent City Ann R. Danforth, Towns of Tiburon Barry K. Hogan, City of Moorpark Michael Jenkins, Jenkins & Hogan, LL.1' Vivian Kahn, Dyett & Bha0a Nancy Kaytis- Slocum, City of Ferndale Kenneth D. Rozell, Wallin, Kress, Reisman & Kranitz Gary Y. Sugano, City of Lomita Peggy Temple, City of Corona Patrick Whitnell, League of California Cities All decisions icgarding the final content of this guide I1oc made by the iosfitute Jor Local C m ernrrrcnt. Rci)wtnbt'r to always consult a knowlcdgeable auornq when rorIfim1led b1Y lcgcd issues. Institute for Local Government AN OUNCE OF PREVENTION: Best Practices for Making Informed Land Use Decisions fin a� "After all, a policeman must know the Constitution, then why not a planner?" his question posed by U.S. Supreme Court Justice William Brennan' serves as a good starting point for this publication: 11 hontline police officers mast know and enforce the nuances of constitutional law in the heat of htw enforcement activities, why not ask the same of those making land use decisions? Land use decision - making is admittedly volatile: developers want entitlements, environmentalists w<lnt growth management, and neighborhood organizations want a say in the approval process, Plus, any dumber of 1listo3 pi groups, cultural groups, 111)101)S, taxpayer organizations, and affordable housing advocates may take issue with any given decision. Snit Pitgu Gu, 6 LEi�tiic Cu. v (:Ny of 5'111 Fh ,o, 450 Ij 5 621, 661, 11 20 (1981) (Brennan, J_, (I1 tisPT1lFRY,�, Institute for Local Government AN OUNCE OF PREVENTION Best Practices for Making Informed hind Use Decisions Controversial land use decision - making can therefore become a "Catch —22" for local agencies, where the applicant will sue if the project is denied and opposition groups will sue if the project is approved. This publication started out as a guide to minimizing the risk of litigation. But the research revealed that often the best way to avoid litigation is to implement good decision -- making processes. Just as "walking the beat" prevents more crime than a perfectly executed search warrant, designing inclusive hearing procedures is a better risk management tool than merely assuring the public three minutes of testimony. they implement their vision for development by assuring that approved projects comply with the applicable laws and conditions imposed. Property owners and applicants are entitled to procedural due process when an agency acts on a general plan amendment, specific plan, zoning ordinance, or subdivision approval. As discussed in Chapter 2, the standards are slightly different depending on whether the agency is acting in its legislative or quasi-judicial capacity. But the essence is the same; affected parties must receive adequate notice of all hearings (that is written in a way that can be reasonably understood) and have a fair opportunity to air concerns or rebut evidence presented. Procedural Due Process Local officials have three roles in land use matters.' First, in their legislative role, they plan for development by adopting the general plan or implementing zoning ordinances. Second, in their quasi - judicial capacity, they review project proposals for consistency with plans and ordinances. Finally, in their enforcement role, In California, the procedural requirements go farther. Several statutes require greater notice and public involvement. For example, the Brown Act, the notice and publishing requirements in the Planning and Zoning Law, and the review and comment process in the California Environmental Qual fy tact. (or even the National, Environmental„ Policy Act) all assure specific notice and participation rights. General Preventative Risk Manageme Strategies' a Regularly Review. Land Ilse Controls:; Agency :'. will Delp reduce conterltiousr�ess 8olhtlte applicant staff should regularly review zoning an subdivision and the public will know what to expect. Ideally, ordin.a'nces to assure they are up - to - date Areas:' the procedures should:includEa description of the to watch Include environmental, sign, adult ': process, the time Ilmts In which the hearing will entertainment, telecommunications, and affordable be held, how testlmoriy will be heard, and overall housing requirements, Also, the agehq should meeting decorum assure.that the language In current regulations is ®Act As An tJnbtased l act Finder. Many land use consistent with past staff and council interpretations matters involve a hearing where the decision maker of policy, evaluates standards and applies them a given set Q. Provide. Strong Staff Support, Provide support of facts Here,.the decision -maker is playing a role .`..for all. decision-makers, including elected officials, - sirnilar to that of aJudge and must retain a degree ..:. planning commissioners, design. review. board of neutrality. Decision- makers should refrain from mernbe.rs,:and even zoning administrators. Full talking with applicants.(except at meetings) and staff support helps the process move more quickly avoid the pp of and predictab It also assures that all relevant o Get Training. Lveryane involved in land use information will be analyzed in the staff report and decision- making - from.. the new planning that adequate findings will be drafted in support of commissioner to the most the staff should the decision. have constant training opportunities to better pa Develop Written Hearing Procedures. A written understand each other's role, stay abreast of recent set of procedures to follow at each public hearing developments, and develop new ideas. ' r)aniel J. Curtin, Jr.. I cgai fsNues ;issucitiiiOm WWI Land l'gL OcLision -ino; ing, paper presented at 2004 Pl;uincrs lnstilute, I vague nI California Citics. 2 1 Institute for Local Government AN OUNCE OF PREVENTION: Sesf Praclices for Malting Informed Land Use Decksioris The silver lining is that local agencies still enjoy a degree of deference frorn the courts— particularly when they are acting legislatively. However, courts increasingly require decisions to be supported by sound data and reasoning. Local agencies that understand these rules reduce their exposure to the costs of litigation and liability. A Starting Point for Fairness and Predictability Fair decision- making processes promote better governance and reduce the risk of litigation, In this respect, constitutional and statutory procedures and criteria are a baseline. In this context, it is helpful to think of the overarching goals of what decision - making processes are trying to achieve: e Well - Defined General Plan. The general plan is the cornerstone for a community's physical development. It assures that there will be sufficient housing, jobs, open space, and infrastructure: But it is also the foundation for setting expectations about how land can be developed. As such, a well- defined vision in the general plan also serves as the baseline for a land use risk management strategy. Inclusive and Informed Decision - Making. If a decision is only as good as the evidence supporting it, the information- gathering process is important to well- reasoned decisions. Decisions vetted by civic engagement are more likely to address trouble Points and limit the risk associated with any unintended consequences. Such information can also identify solutions that will make the project more feasible. The information nay also be used to craft findings that better support the final decision. Predictability. Interested parties should be able to reasonably predict what types of projects will be approved or denied. f=ailure to define or prioritize criteria results in inconsistent decisions that are more likely to be interpreted as arbitrary by courts. Chen the emotional and financial stakes often associated with land a use decisions it's understandable that people may act out of fear or anger when the process is perceived as unfair. Balance Benefits and Burdens. Predictability does not mean that the same decision must be made for each application. Each parcel is unique. Land use regulation is built on the premise that the sum of an agency's plans, ordinances, and policies will balance the benefits and burdens of regulation. This assures that different areas are set aside for housing, commercial activities, schools, and open space. Specificity, in Plain English. Policies, final decisions, and even comments frorn decision - makers should be easy to understand, Avoid acronyms and definitions that can confuse those who do not work in the field professionally. The decision- making process should always he objective and consistent. People do not generally " "fare well with unurtainty. With good planning, "" much of the contentiousness surrounding the land use decision - making process can be resolved. The Goal of this Publication: Managing Risk One of the most frustrating aspects of land use planning is to see a wise policy decision set aside because of a technicality Given the latitude that agencies have to act substantively, procedural challenges often pose a greater risk of litigation and liability to local agencies. Not only is it likely that the agency will incur additional expenses in the form of' substantial attorneys' fees, but the value of the time and money devoted to the project may be lost permanently' Ivioreover, litigation undermines the public's confidence in the governmental process, which in itself cat) lead to rrtorc misunderstandings and further litigation. This publication does not provide the "silver bullet" for avoiding land use disputes. Nor does it address compliance with specific land use laws. Instead, it f0ettses on the underlying procedures Institute for Local Government 1 3 AN OUNCE OF PREVENTION: Best Practices for Making Informed Land Use Decisions that are common to all land use decisions. It walks throttgh the typical decision- making process —from design and drafting ordinances Lo issuing a final decision and bearing appeals — and identifies practical strategies to reduce the risk of litigation. In olfering these strategies, this publication is more than just a risk management checklist, Rather, it's a manual for good public decision - making. Indeed, the ultimate goal is for each community to combine a well - designed general plan and ordinances ivith sound due process and public engagement strategies in order to have a fully functioning, informed decision - making process. PARATRANSIT -- Sacrarnento ` Z�WQQDBNE AVE, ELEVA 4 I Institute for total Government CHAPTER 2 IN THIS CHAPTER Legislative vs. Quasi - Judicial: What Type of Decision is it? Civic Engagement for Legislative Decisions Procedural Requirements for Legislative Acts Process Design for Quasi - Judicial .Decisions AN OUNCE OF PREVENTION: Best Practices for Making Informed Land Use Qecisians Designing Decision-Making Procedures eople relate to land use decisions —and are often passionate about then.— because of the impact these decisions have on their physical surroundings. Adherence to standard procedures assures that constitutionally and statutorily created clue process rights are met even in the most heated of debates. As a result, procedures should be designed to promote timely and meaningful participation, permit adequate review, eliniioate redundancy, rtlinimize delay, and result in actions that further the goals of the general plan, Good procedure design limits the risk of litigation and provides the conunuuity with greater confidence in government decision -- making . Institute for Local Government 1 5 AN OUNCE OF PREVENTION: Best Practices for Baking Informed Land Usr- Decisions Legislative vs. Quasi - judicial: What Type of Decision Is It? The type of decision that is being trade by the agency dictates the procedural requirements for that decision. Most land use decisions are either "legislative" or "quasi-judicial." Legislative decisions involve policy choices that apply to a broad class of landowners.' Examples include the adoption of general plans or zoning ordinances. Courts show greater deference to these decisions because the legislative process provides its own checks and balances. Thus, courts will only invalidate legislative acts under two conditions: when they fail to follow required procedures or when they are wholly irrational, arbitrary, or entirely lack evidentiary support.' Put another way, a legislative action will be upheld if it bears a reasonable relationship to the public welfare and appropriate procedures have been followed.' individual applications that are being considered for approval. Examples include granting a conditional use permit or a tentative map application. Here, broad policies are being applied to a specific parcel or project. The procedural requirements are more stringent because the local agency is acting more like a court: there is a hearing, evidence is taken, and the decision - maker is vested with discretion to determine the facts and maize findings.' Courts scrutinize quasi-judicial decisions more closely. An action may be overturned if the agency (1) exceeded its authority; (2) failed to provide a fair hearing; or (3) or made a decision not supported by substantial evidence (also called "a prejudicial abuse of discretion").' The primary difference between the legislative and quasi-judicial standard is the substantial evidence standard: courts look beyond whether the decision was "reasonable" (the legislative standard) and look to see that the decision is supported by Scr Ensign hit kfoyd RcdllY Coy. st City Council. 68 C;il, App- 3d 467, 474 (1977)_ 2 S e Cal. civ PEEo( Code § 1085_ 3 Cdlool qiu Hotel c`T Molcl iWoeivaion a lndlistiial IWIj w [on lli5mo[J. 25 ej, 3d 200 (1� ()79)_ { Cal, Cis-, Proc. Code § 1094 50), Sec Cal. cm Proc. Code § 1094.5. C.A. Cis. Proc Code s 1094 5, 11 Cal. 3d 506, 515 (1971): Rasrixusen e CIO' Council, 140 C;tl, App. 3d 842, 848 (1483); 1'd0ii r. Cdlif011dtl CUdsldl CnMMIS$10}1. 178 CA App_ 3d 544. 550 -51 (198Ci). 6 I Institute for Local Government In contrast, quasi-judicial decisions (also called substantial evidence.' adjudicative or' administrative "decisions) involve "' "' Adjudicative: and Legislative Acts ADJUDI CATIVE. ACTS LEGISLATIVE ACTS . Conditional Use Permits - * Alrpo.rt Land;tJse Plans Variances Water.Qistrict Pnnexations a Coastal Development Perrnits . '• Planned Unit Developl'rmenb a Subdivision Maps Zoning and Zoning Amendments _. . Williamson Act Cancellations- .. a General Plan Adoptions.. o Certificates of Compliance .. ............... Special Assessment Establishment • evelopmerltAllotrraent per Growth Control D Ro ad Abandonment Ordinance < Specific Plans e General Plan Consistency Determinations o Habitat Conservation Plans • Habitat Conservation Plan Amendments Scr Ensign hit kfoyd RcdllY Coy. st City Council. 68 C;il, App- 3d 467, 474 (1977)_ 2 S e Cal. civ PEEo( Code § 1085_ 3 Cdlool qiu Hotel c`T Molcl iWoeivaion a lndlistiial IWIj w [on lli5mo[J. 25 ej, 3d 200 (1� ()79)_ { Cal, Cis-, Proc. Code § 1094 50), Sec Cal. cm Proc. Code § 1094.5. C.A. Cis. Proc Code s 1094 5, 11 Cal. 3d 506, 515 (1971): Rasrixusen e CIO' Council, 140 C;tl, App. 3d 842, 848 (1483); 1'd0ii r. Cdlif011dtl CUdsldl CnMMIS$10}1. 178 CA App_ 3d 544. 550 -51 (198Ci). 6 I Institute for Local Government AN OUNCE OF PREVENTION: Best Practices for Making Infortned Land Use Decisions There is also a third classification: ministerial decisions. These are mandatory, nondiscretionary actions where the agency must grant (or deny) an application based on the presence (or absence) of a predetermined set of conditions.' An example would be a final map approval under the Subdivision Map Act, where the agency may only determine whether or not the applicant has met the conditions in the tentative map. Though important, ministerial decisions are not discussed in further detail in this publication, This is not to say that risks are not present. For example, failing to take the appropriate ministerial action may subject to decision -maker to liability under the Tort Claims Act.' But they do not pose the same risks associated with the typical legislative and quasi-judicial land use decisions that are the focus of this publication. Local agencies are increasingly turning toward more participative models of suited to truly engaging the public. Mernbers of the public sometil7les comment that the timing of the hearing ---at the end of the process just prior to the final vote - -makes them feel like they had little ability to affect or shape the final project. Such frustration can lead to litigation- Public engagement also leads to more developed thinking about solutions: ideas that have been vetted through various community groups and participation processes are less likely to include provisions that will unfairly regulate the use of land. There is some evidence that courts look upon such processes favorably. In one contentious case involving a developer association's challenge to an inclusionary housing ordinance, a court of appeal noted favorably that the ordinance had been developed after consultation with a community advisory connnittee that counted several developers among its members, Procedural Requirements for, Legislative Acts Legislative acts are usually adopted by ordinance. One exception, however, is the general plan, which is adopted by resolution. Resolutions are less formal than ordinances and become decision- leaking, particularly far the development and implementation of general plans, zoning ordinances, and other legislative acts. Citizens advisory committees, stakeholder processes and other non - conventional hearing formats are all methods that create greater civic involvement_ These strategies are also excellent risk managemealt tools_ They can lead to more infun decisions and greater public confidence in agency decision- making. Greater involvement also generates mote realistic expectations by the public. Indeed, public hearings are sonretinles ill 7 Rr higue, v. Solis. 1 Cal. App. 411i 495 (1991), Typical examples include apprm of a linul sWxlwision trnap and issuance of building aml occupancy permits. ]ntirrgblood i� Bowt< tf SI {p�etitior:;, ZZ ( al_ 3d 644 (1978)', Thompsoat v Citt' t j Jviw Flti'mow, 18 Cal. App. 4th 49 (1993) 1cc Cal, Gov't Coda §§ 8111 and following. ` Home 8ai[der, Ass',t of Suitlteut Ccrli(omia r. CrtY off \'n1>n. 90 Cal. App. 4112 188 (2001). Io -er Cal. Gov't Code § 6i355. InStIt Ute for local Government 1 7 Civic Engagement for Legislative Decisions AN OUNCE OF PREVENTION: Best Practices for Making liifon�iud Land Use Decisions effectively immediately (as opposed to ordinances, California Environmental Quality Act (CEQA). which become effective 30 clays after adoption). Additional notice and comment provisions However, both are considered legislative acts and are required in order Lo comply with CEQA must meet minimum procedural requirements in where an ordinance or action constitutes a order Lo become effective: "project" within the meaning of that laiv" Meeting and Agenda Requirements, The Brown Act requires that most legislative acts (Lhere is an exception for urgency ordinances) must be adopted at a regular, noticed meeting where the public can participate and comment.I t The primary notice requirement under the Brown Act requires that the meeting agenda he posted in a way that is accessible to the public and describes the time, location, and subject matter of the meeting. Two Readings. Zoning ordinances (or amendments to zoning ordinances) generally require two readings: one to introduce the ordinance and a second to adopt the ordinance." Ordinances must be read in full at the time of introduction or passage, unless a majority of the body waives the requirement." majority Vote. A majority vote of the total membership of the governing body is required Cal_ Gov't Code §§ 54950 and following, § 25131 (counties); and § 36934 (cities); McQuillin, Municipul Coq%)ruiions § 16:29 (3d rev. ed. 2004). Sec also League of California Cities, Open & Public 111: A Users Guidc In the Rculhh eiNT 13yown Art (2000). . .... ....... ...... .......... ........ ..... ...... ' Cal Gov't Code § 54954 -2(a)_ j Cal. Gov't Code H 67350 and following (general plans); Cal, Gov't Code § 05453 (specific plans), ( :�11. GOV( Code § f6h51.3 (suhilivisiims) and Cat Gnv'l Code §§ 65854, 65856 (zoning ordinances)_ 14 Cal, Gov't Code § 65094. I5 Sve Cal, Gov Cude §§ 65090 -91. b Scc, c.g., Cal. Pub. Rev. Code H 21092 - 21092.0 (negative declarations and environmental impact sports). 17 (:al. (G)% t C:ocle §§ 25131 (counties)', 36931 (cities), Ali ordinance passed in violation of stalutoi procedures is invalid, regardless 01 the suhject molter, Nalimial Indepeadenl 13usines5 Alliwlur v City cf Revuly })ills, 128 Cal. App. )c1 D. 22 (1982). 1" Cat Gov't Code #§ 25131 (Mounties), § 36934 (clues), kkQuillin. Valfkip�d 1629 (31 rev- ed_ 2oo4)- 1 " Cal. Gov't Code §§ 25005 (counties); 36936 (clues). 20 Sec Cat C'lou't Code §§ 65589.5, 65302.5, and 65863.6. 21 Cal_ Gov't Code § 65302 8_ 12 Midmiy 00imds %. Comity of Palle.. 220 Cal. App. 3d 767 (1990), 8 1 Institute far LoLaI Gov,rnrnent . Public Hearing. The local agency must also to adopt an ordinance or a resolution." hold a public hearing, usually at a regular Findings. Findings are generally not required scheduled meeting of the legislative body. The for legislative acts, though they are sometimes hearing notice and publication requirements required by statute in specific instances, extend beyond those of the Brown Act. )= xatuples include when a general plan The notice should include the date, time, or ordinance limits the number of newly and place of the hearing the identity o.. the ..constructed housing units or when very hearing body or officer, a general explanation l low -, °' m oderate- income housing of the matter to be considered, and a general is disapproved. Findings are required Llescription, in text or by diagram, of the for adapting a general plan if it includes location of the real property, if any, LhaL is the . provisions that limit the number of housing subject of the hearing. " 1j notice is units that can be built' provided by public postings and publication in a local newspaper. Publication and Effective pate. Resolutions ordinarily Lak effect. immediately 22 Unless state law directs otherwise, however, Cal_ Gov't Code §§ 54950 and following, § 25131 (counties); and § 36934 (cities); McQuillin, Municipul Coq%)ruiions § 16:29 (3d rev. ed. 2004). Sec also League of California Cities, Open & Public 111: A Users Guidc In the Rculhh eiNT 13yown Art (2000). . .... ....... ...... .......... ........ ..... ...... ' Cal Gov't Code § 54954 -2(a)_ j Cal. Gov't Code H 67350 and following (general plans); Cal, Gov't Code § 05453 (specific plans), ( :�11. GOV( Code § f6h51.3 (suhilivisiims) and Cat Gnv'l Code §§ 65854, 65856 (zoning ordinances)_ 14 Cal, Gov't Code § 65094. I5 Sve Cal, Gov Cude §§ 65090 -91. b Scc, c.g., Cal. Pub. Rev. Code H 21092 - 21092.0 (negative declarations and environmental impact sports). 17 (:al. (G)% t C:ocle §§ 25131 (counties)', 36931 (cities), Ali ordinance passed in violation of stalutoi procedures is invalid, regardless 01 the suhject molter, Nalimial Indepeadenl 13usines5 Alliwlur v City cf Revuly })ills, 128 Cal. App. )c1 D. 22 (1982). 1" Cat Gov't Code #§ 25131 (Mounties), § 36934 (clues), kkQuillin. Valfkip�d 1629 (31 rev- ed_ 2oo4)- 1 " Cal. Gov't Code §§ 25005 (counties); 36936 (clues). 20 Sec Cat C'lou't Code §§ 65589.5, 65302.5, and 65863.6. 21 Cal_ Gov't Code § 65302 8_ 12 Midmiy 00imds %. Comity of Palle.. 220 Cal. App. 3d 767 (1990), 8 1 Institute far LoLaI Gov,rnrnent AN OUNCE OF PREVENTION: Best Practices Io( Making Infortned land Use Decisions ordinances take effect on the 31st day after adoption," Ordinances must also be published within 15 days of passage in a local newspaper of general circulation. If there is no newspaper in the community, the ordinance must be posted in at least three public places." Urgency Ordinances. Ordinances are immediately effective when necessary to preserve the public peace, health or safety. The urgency must be explained in a declaration and win approval by a four- fifths vote," Some agencies adopt an identical "back up" ordinance through the usual procedure (two readings). If the urgency ordinance is challenged, the non - urgency version of the ordinance will have already taken effect. • Interim Ordinances or Moratoria, Interim ordinances are typically used to prohibit a use that conflicts with a conten }plated zoning (usually the planning commission or zoning proposal that is under consideration. They administrator) is vested with the discretion to require a four - fifths vote and may be extended apply (he legal standards or policy criteria and up to a maximum of two years. make determinations, Although the procedural requirements are stricter, public engagement Failure to comply with state la�v procedural techniques may still be used to help gather requirements typically invalidates the ordinance," neighborhood sentiment, or allow a design review although in some instances the agency must be committee the opportunity to preview a project given the opportunity to cure the violation ?s before it takes final shape. However, they should As a general rule, however, violation of local either he voluntary (on the part of the applicant) procedural rules does not invalidate the action. " or be designed in away that offers the applicant an ability to respond to all the information that is pYOCess Dec; ri -FOr collected. N Quasi - Judicial Decisions 1. Notice Quasi-judicial decisions, such as project approvals, require a formal heating where .. ...... evidence is taken. The decision- maker Typically, all owners of property within a radius of 300 feet of the property should receive notice by nail of a pending application at least 10 clays 7.1 Cal. GOVT Citde §§ 25123 (counties): 36937 (ctties). 24 Cal_ Gov't Code 25124 (counties); 36933 (citie,). s ' Cat. Govi Code § 36933. Pais r. Mtunc l Cvwf, 3 Cal_ 3d 861, B68 (1 (invalidating urgency clause Nvith <liscriminatoey language). 20 Cal. Gov't Code 05858 _ \caioncal hulepemintl Busiucss rllliaitce t� Ci[y of Rcvcri'y Hils, 128 Cat App. 3d 13, 22 (1982), Ci[v of Colton r. (f Ricd[o, 230 Cal. App. 2d 174, 180 (190 }), ,Sec Cal_ Gov't Lode §§ 54961 5-1960.1 (the district attorney or any interested person mly sue either to prevent violations or to have past actions declared null and void). _,q Scr Cal. Govt Codc § 54960, t(h), {c)(1) (viohuions of open meeting lams). city v. Panic, 126 Cal. app. 2d 93. 96 (1954) (resolution valid where read by title only, although titles required full reading). 30 Cal. Gov't Code § 65[709(1))(2). Institute for CoCat Government 9 AN OUNCE OF PREVENTION: Best Practices for Making Informed Land Use Decisions before the hearing. In some instances, local agencies increase notice radius to 500 feet or some other measurement," The notice of the hearing trust adequately describe the action under consideration. For example, one notice for a variance was Meld inadequate because the notice only described it as a variarce for a garage and failed to note the second unit above the garage. Courts view inadequate notice as equivalent to providing no notice at all." 2. Fair Pudic Nearing Decision- makers must base their decision on the facts that are presented to them as part of the quasi- judicial process, just as a court bases its decision on the evidence presented at trial. Public hearings are often the forum where all Decision- Makers Should Avoid Ex Parte Contacts. An ex paste communication occurs ruhen a decision -maker receives information— the evidence is presented. Hearings are often by meetings on the street, phone calls, and conducted as part of a regular meeting of the even e- snails ---- outside Of the quasi-judicial decision - malting body. The procedure employed process (ex paste is Latin for `from one side must be fair and accord applicants and others only "). Reliance on information received in with an interest in the matter a meaningful this way can be unfair because the opposing opportunity to prepare, be heard, and rebut parties are not there to rebut the information. evidence. The process must include some basic Decision- makers should avoid outside safeguards: Deci5ion- Makers Must Be Present For All Evidence. Anyone involved in making the decision must have heard all the evidence. This becomes an issue if a member of the decision - making body misses a meeting where evidence is presented, but the vote is postponed to a later meeting. While the best practice is to be present for all hearings, in some cases the member may still vote after reviewing the tape or testimony of the earlier meeting, reading all documents involved, ......... reviewing all aspects of the issue presented and stating on the record that such review and e.�atnination was completed. contacts that could support a claim of bias." Care should also be taken not to use Outside contacts to develop a consensus on an issue outside the hearing room. if an ex paste contact occurs, the affected decision -maker should disclose the contact and the substance of the communication at the hearing prior to receipt of public testimony This will get the evidence shared during the contact into the record. Many agencies adopt formal policies governing these kinds of contacts. Cal. lbw's Cod(, s 65091 (difle.retat 0inclines and luocedures may apply in charter cities), 37 kt, Sci Nola i� Cnultip of l 24 CA Sri 505, 613 (1979). 33 D) trot v. Fri Sao Cutatly Deparhttcnl t f Pubic Wmhs.. 144 Cal. App_ 3d 777 (1983): Cat Gov't Code 5 65094. '' Scc T)ntni v Fresno Coatrtj' Dcparftrt,W cf Pubiic Wo+hi, 144 Cal_ App_ 3d 7 77, 782 (1983)_ 3' Dinicl J. Curtin, Jr., & Cccily T Talbert, Cuilms C. Land Use ant Phwning Law (Solnno Press, 2004 ed, }. 30 Sce ,, \tasha v, Cis} of 1.os Andes, 125 Cal, App. 41h 470 (2004)_ 3` Cal. Govt Code 54952.2(b)_ 10 1 Institute for Local Government AN OUNCE OF PREVENTION. Best Practices #or Making Informed Land Use Decisions Informal Site Visits Raise Concerns. Staff will Often do a site visit for significant projects as part of its analysis for the staff report. However, decision - makers also sometimes visit a project site. This raises fairness concerns because the decision- nialcer may draw a conclusion outside of the hearing. Though some argue the better option is to avoid such visits altogether, many local agencies require that decision - makers disclose any site visits that they may have made — along with any conclusions they drew from such visits —at the beginning of the hearing prior to public testimony, Decision- makers should check with the agency's attorney to see what procedures may apply, Some legislative bodies schedule field trips as adjourned regular meetings to review a project site. 3. Managing Testimony and Evidence Public hearing procedures must allow all interested parties a fair opportunity to present evidence supporting their position," Evidence may include documents, pictures, and Witness testimony. The credibility of witnesses, and the weight to be given the evidence, are also within the agency's discretion. Local procedures vary, but can address the following issues; Informal Rules of Evidence. Local agencies need not follow the formal rules of evidence used by courts," All locally adopted rules and policies, however, should be referenced in the hearing notice. A good practice is to develop some guidelines about the form in which evidence may be submitted in order to avoid submission of long videotapes or irrelevant could be tempted to make decisions in the agency's favor. This problem can be avoided by entering into a pooling arrangement with other agencies to function as advisers for each other when the need for hearing officers arises, using in -house hearing officers, contracting with the State to use administrative law judges or a engaging hearing officers on a long- ter111 contract. Tn short, the lesson is to design and implement processes that create a levd playing field for all interested parries. Courts are likely to look closely It actions that have the appearance of prejudice, even where none actually exists. Hulls a Cotutiy of .Stin Beet rdinr, 27 Cal. -kh 1017 (2002). I" _�cc Cohan e City of I housxutd Outs, 30 Cal. App. 4th 5 (199.1) (council vioht ted applicant's due process rights WIMI it waived notice rtqui rknleIlls and hillItel nppllcants oppm nllny to speak), q ` Cral. Gov't Code § 05olo. 4i Sir, Jor Cvl pile. Calmly of Kinds, Cal , Code § 1806 (1996). Institute for Local Government 1 material that is impractical, due to time and Finally, to the extent that local agencies rely on resource constraints, for the decision -maker outside hearing officers to make certain kinds to fully consider. Such procedures should of q uasi-judicial decisions, they must take care be written carefully, however, so as not to that the hearing officer does not have a financial inadvertently exclude relevant information. interest iri`makin ` avom e decisions t 1e "' � the presence of such rules should also be agency. One court questioned the underlying referenced in the hearing notice so that the fairness of a system where the agency hired public can make appropriate preparations. its own hearing officers because the paid hearing officer had a financial interest in future adjudicative work from the agency and therefore could be tempted to make decisions in the agency's favor. This problem can be avoided by entering into a pooling arrangement with other agencies to function as advisers for each other when the need for hearing officers arises, using in -house hearing officers, contracting with the State to use administrative law judges or a engaging hearing officers on a long- ter111 contract. Tn short, the lesson is to design and implement processes that create a levd playing field for all interested parries. Courts are likely to look closely It actions that have the appearance of prejudice, even where none actually exists. Hulls a Cotutiy of .Stin Beet rdinr, 27 Cal. -kh 1017 (2002). I" _�cc Cohan e City of I housxutd Outs, 30 Cal. App. 4th 5 (199.1) (council vioht ted applicant's due process rights WIMI it waived notice rtqui rknleIlls and hillItel nppllcants oppm nllny to speak), q ` Cral. Gov't Code § 05olo. 4i Sir, Jor Cvl pile. Calmly of Kinds, Cal , Code § 1806 (1996). Institute for Local Government 1 AN OUNCE OF PREVENTION: Best Practices for Moking 100nrle6 Laski Use Decisions Managing Testimony. The individual right to be heard must be balanced against the public interest in fair but efficient hearings." Agencies may place reasonable restrictions on the length of testimony. Typical methods include providing each person a short period (usually 3 minutes) to speak or providing each side a certain period of time (30 minutes) to make their case. The applicant often makes an opening statement, but is also the last to speak to afford the opportunity to rebut any adverse evidence. The agency has the discretion to refuse repetitive or irrelevant evidence, and forbid disruptive behavior. Collect Evidence for the Record. All written and pictorial evidence presented at the hearing should be collected. The hearing notice should advise those who wish to present evidence to provide copies to the agency and the opposing party prior to the hearing. Anything not admitted into the record at the hearing should not be used in making the decision; Cross Examination. Allowing opponents to cross examine one another is generally not standard in land use hearings anti, to the extent it is used, is generally limited to specific circumstances, such as when an "expert" is invited to make a presentation. Otherwise, the prospect of cross - examination may have a chilling effect on public participation that deprives the decision - making body of important information. The important thing from a process design standpoint is to have a fair system in place so that when controversies do arise, the losing party does not feel like the process affected the outcome. 4. Improper Combination of Functions Additional process requirements affect enforcement actions —such as nuisance abatement and permit revocations (as opposed to simply evaluating permit applications). Ilere, the agency's attorneys must avoid advising the staff enforcing policy, and then advisino the'ultirriate decision - maker. Two" court decisions have addressed this issue: .......... _ ... .. -- • An attorney who played an active role in Facts a:nd Evidence: revolting an adult business license could The reccird upon Which a. . .. decision is made is _ not advise the hearing officer assigned to often made up of snore than just facts. Evidence adjudicate the appeal of the revocation.'" may .. alsobe considered, An example of evidence would bean expert opinion offered by a specialist .....: An attorney who occasionally provided :... consultant. The expert's conclusion is usually advice for a board could not also prosecute an Opinion drawn from the expert's view o{ the . disciplinary actions before that board.`"' facts. .A local agency may reasonably rely on such opinions in snaking its final detertnitlatlon The underlying theme is that the role of an Another example of evidence is the testimony advocate is inconsistent with the role of a of surrounding residents expressing support or decision- maker, The problem may also arise with .. _ concern even thou f1 tl eit o itiioris rna :not be ....... g p Y ...... . la jf;..Thu nuii- 1<i��} t_i staff. s eiifozceiiieirt staff should supported by independent facts in the raord. not clircctly advise ad�udicatory oflivals. Likewise, if a decision is subject to multiple levels of review, it may be inappropriate to have the lawyer who advised the lower tribunal advise the higher one.' '' thighs Mcrriatn & Ruben Sid ouvslti, Prtrtetinral Dur Proo in Jlwaice, 1'lar "Wing Comn:issio ""cars ]ournal (Suunnet 1995). {! Id. 44 Niglttlifr Avoicrs, Ltd. V City 01 130'01y Hills, 108 CaI, App. 401 iii (2003)_ 4' Quintero n Cats of Jrutta Ants, 114 Cal. App. 41h 910 (2003 }. 4b iNo casc hats yet addressccl [his issuc. arc Jlichacl icnlwis, flow Aklny Lcur.rris DUOS It Told To ... 'rin ilnnlrsis t� \ighCliji' ar "d �7 "riu"cvn, Mctiton Cif}' (May 2004)_ 11mvg1 v..Sigiiiot Cowl, 3 C..al. App 4th 17 5 (1992). 12 1 Institute for Local Government AN OUNCE OF PREVENTION: Best Practices for Making Informed Land Use Decisions To date, this rule has only been applied when an agency is enforcing or prosectttiiig in ordinance. It has not been applied when an agency is evaiiiatirtg or processing discretionary permits, environmental decisions, or subdivision applications, As a result, the attorney (or staff) who works on processing a permit should also be able to advise decision - makers like the planning commission on the project. But agencies acting in a prosecutorial or enforcement capacity should adopt appropriate safeguards." One practice would be to create an ,, ethical wall" by not allowing prosecutorial and advisory staff to discuss specific cases or policies. Thus, one person neither knows about nor affects anything the other is doing as to the matter." This is a simple approach, but probably not practical for smaller agencies with less staff, Even for larger agencies, it may be difficult to ensure consistency if a senior lawyer cannot supervise a junior attorney on a specific action. The alternative is to avoid providing legal advice at the lowest prosecutorial level. Under this method, attorneys provide only generalized advice to enforcement staff and cannot provide advice on specific cases. With this approach, any legal problems could be reviewed and corrected at the adjudicative level. The disadvantage is that the absence of specific legal advice may binder enforcement. Finally, if the agency believes that advice aL the prosecutorial or investigative level is critically important, the agency caz employ outside counsel to provide that advice and the agency's counsel can advise the decision - [Halters during the adjudicatory phase. ......... ......... ........ . ..... -r 5. Issuing a Decision The local agency should issue its final decision in writing, usually soon after the public hearing. The tinting and service of this notice begins the tolling of the statute of limitations —or the time in which the action may be challenged in court. The required notice should be given whether the action approves or denies the application. Challenges to quasi judicial decisions must generally be filed within 90 days of the date that the agency's decision becomes final," The notice of the final decision should include a statement that the amount of time in which judicial review may be sought is governed by California Civil Procedure Code section 1094.6. It is also a good practice to announce on the record after the decision any local time limits for appealing the decision. -1y Thcsc• practicrs are escerped front a relwrt drafted for IhC City Attorneys Drparonent of the League of California Lilies by its Ouc Process Committee. A copy is postcd at(tj�tssz`e f,� t} }1) Hon�r(�. Sdpctiur C<n1rt, _ C al. r \pp_ 4th 1575 (1992) (county had btn of establishing that attorney advising appeals heard was segrcgated front attorney represenlirtg the departnncnt that terminated cntployec), Cal. Civ Ilroc. Code § 1094.6(h)- But a sI101ECr tirtti €a(i 11 nta)- aphly Cal. Cie Proc. Code § 1 {)94.6(g). SCC, fnr rvn>nple, Cal, Pub. Res. C ode s 21107; C al_ Gov't Code ? 65009. 71 Continuing Education of the Liar. C(ihfomw Adnmj;[Arutive ,M nedaruut §7.11 (2nd ed_ 2002)_ Institute for Locai Government 113 AN OUNCF OF PREVFNTION: Best Practices for Makinu kiforined Land Use Decisions A Heil. (sr� Sc +.t ?car: I S . 4 Maximum Permitted Commercial ,Square Footage: 13,01 f. Maximum Residential Units: 7 tl govrl c_Xrnnple ujtahirig the extia stcp of fomianing legislation in a wq that irzalzcs it easy to t�sc aiul apply. 14 Institute for Locaf Government =E r =' (see Sectfc n 30 i0,3€� fl iut ei ld t�111 . Retall Commercial 5 : To54nli ®uses'�� °> Multi-Family Housing Live Work: Spate (Business on the First. Floor. Facing the Street} a Offices (Above First Floor Only) Courtfarcl r °,4? Mixed use ( Residential ovei}: Gomrnercial) .. 1 � n �: �c2 C,� 1$1 lI� cl��C� H eigh � f i�� ` �.5 Se�Uu } 3.3Q,11 36,$Q,l'oi' ft, [ftgz `det<clf) Tesri3C2c1 z w t C ` !{ Allay " Aulld to front Line . j I es so 1 (Le l~► rivej 0 to 1 Setbac It. )' . ; }:� \ � (.. ��; .'r -P"':7 ��',>A" k"��sX,$ �i.. . w MInirnumRearlf'ard Full 81c}ek _.. _ ,. fi `IM'5',,.s^'� . Iw E r `� , e 20 (Second Story) Maximum Height: 35 Half Nock Maximum Permitted Commercial ,Square Footage: 13,01 f. Maximum Residential Units: 7 tl govrl c_Xrnnple ujtahirig the extia stcp of fomianing legislation in a wq that irzalzcs it easy to t�sc aiul apply. 14 Institute for Locaf Government CHAPTER 3 IN THIS CHAPTER Determination of Authority Scope of Legislative Action Considerations In Regulatory Design Clear Wording Responsibility for Drafting AN OUNCE OF PREVENTION: Best Practices for MaI ing Informed Land Use Decisions osi elements of the general plan are implemented through zoning ordinances. Ordinances are legislative acts because they establish policies that apply to a broad range of parcels or applicants. Well - drafted legislation does what the local agency intends it to do—nothing more, nothing less. Poorly drafted legislation, on the other hand, can be interpreted in unintended ways and increase ti risk of litigation. .................. Determination -of .A The first step in drafting an ordinance is making sure that the agency has the authority to legislate, The autliority to regulate land arises from the "police power" to protect the public's health, safety and welfare.' In California, this power is passed to cities and counties, which can maize and enforce such la - ,VS to the extent that they do not conflict with the laws of the state.' Courts have traditionally construed the police power to authorize local land rise regulation.' The police power is inhercnL in a sovereign government. This powct is rescrved for stales in the Tends amendment to the United States Constitution. Sce also l=ucid v Ambler Really C_onycoiv, 272 U_5. 365 (1926) (holding, that local governruents may protect the general Nvelfare through enactment of residential zoning ordinances). Cal. Const. art. X1, § 7, lhdiej a Bo(od c f Public ll'orhs, 195 Cal, 177 (192 5). ("widicf Fi2tc�p�i�es, Inc. r. Gznsrntont Ilnroir lligh School Dist., 39 Cl. 3d 875. SSG (B85)- Institute for Local Government l5 AN OUNCE OF PREVENTION: Best Fractires for Making lnforined Land Use Decisions The police power is also "elastic," meaning that it is flexible enough to meet the changing conditions of society.{ "Thus, actions that might not have been thought of as promoting the general welfare a century ago (like actions to assure aesthetic character, perhaps) are within the purview of the general welfare today. Courts have found that a wide variety of local concerns legitimately fall within the general welfare, including growth management.' But there are limits to the police power. One of the primary limits to this power is the caveat that local laws may not conflict with state law. An example is the state "anti- NIMBY" law, which prohibits local agencies from denying affordable housing projects unless specific findings can be made. A more complex example is the second unit or "granny flat" law, which requires local agencies to adopt processes to approve second unit applications ministerially, without discretionary review or a public hearing.' Agencies that do not - - -- _ _ _ .. ..._ ........... Urbitations Impos .. ny specific llmitatlon5 on;the exercise of local zonEng.poivt?r ar',' 9 � same ,e xamTales,, .., ...' . Il Zanind. Sufficient Ian d.ln[ist :be zoned for , ,'•, Discr rrllnation: Oidinances that dehy.`rlghts td use sidential :us i I'.uclid v. Ambit Ri altt' Cic+nhaitr, 272 U.S. 367, 387 (192 ()), rlgins r. Cify� of I'ibm0 n, 447 U.S. 255, 260 -63 (1980), and Poin cenitaf Transp. Cct, r, \tnv t urf, ( - ily, 438 U.S. 104, 124 (1978). Oeklita r. Count) rf Nopa, 9 Cal. 4th 763 (1997). " Cal. Gov't Code § 65852.2. Svc Cal. Gov't Code s 659111 (residential zoning); Cal. 6ov't Code § 65852,1 (second waits); Cal. Gov'[ Code s 65915 (density bonus); Cal. health £.r Salety Code §§ 1566.3 1597.45 &1 j97 46 (giottp homes and child care facilities); Cal. Gov't Code § 658511.5 (solar eneigy); Cal- Gov'i Code § 65557.3 (mannfactnred homes); Cal. CmA Code §§ 51100 and follonvirng (timberland), Cal Code §§ 71200 and IoIIoMng (agriculLUr1l land): (::al. WL!11. & lust. (.00 U fi 5120 (psychiatric care)', Cal_ BUS- & Prc�l. Code § 5412 (biMmards): Cal Civ_ Code § 713 (signs advenising neat property); Cal_ Gov't Code § 05852.9 (surhtos school sires)_ 16 1 Institute for Local Government AN OUNCE OF PREVENTION: Best Practices for Making Informed land Use Decisions the police tdta:yUay (1) Congress demonsirates its intent to occupy the field of regulation and supplant state or local authority (federal standard). (2) The state or local law may conflict with federal law by making it impossible to comply with federal law or by creating an obstacle to the goal of the law (federal standard).' (3) A local law conflicts with state law when it duplicates, contradicts, or enters a field which has been fully occupied by state law, whether expressly or by legislative implication (state standard).' Sometimes state and federal laws leave room for more stringent local regulation, either expressly or by implication. State and federal law can often be viewed as a baseline requirement allowing the adoption of additional local standards. This is particularly the case for most planning and zoning laws, where the state has found that such laws impose a minimum limitation and that local agencies may exercise the "maximum degree of control, aver - local zoning Matters,"" to local control. Demonstrate My the ` agencys regulation is compatible with or furthers any existing state or federal laws in the area. adopt such procedures must approve all second unit applications ministerially according to a set of state standards. Conflicts with federal laws can also prevent local action. Not surprisingly, determining whether and to what extent an agency may he precluded from acting on certani issues can trtvo ve a complex analysis. SOmetinICS state or federal law is not clear on the extent to which it precludes local regulations. Agency attorneys will apply slightly different tests when determining whether state or federal law preempts local legislation: Nevertheless, there are a nurnber of areas, such as telecommunications, affordable housing, habitat conservation, and other environmental regulations, where the scope of controlling federal or state law is quite extensive. Thus, it is advisable to consult early on with agency counsel to ensure that a proposed regulation is within the agency's authority to enact and does not conflict with state or federal law. Finally, charter cities have additiollal authority to enact laws that conflict with state law if those lativs fall into the specific category of "municipal affaiis,'' of m,iacrs ol as opposed to......... statewide, concern." Of course, charter city enactments cannot conflict with the charter itself— charters generally contain limits on local legislative authority Crosby s'.,Muional Forcigii Trcrdc CuuxcN, 530 U.5 .3b3 (2000)- People r\ let. Dcl&cmejieni s. Cowtty° c Mcudocino, 36 Cat. 3d 476, 484 (1984); Candid Fnteilinses, Inc. v Gossmiml tk loo High Srhoof Divi irt, 39 Cal_ 3d 578, 885 (1985); Cali fonliu FoJeml Savings and Loatt ilssoriahml V. Gtv (f Ios Angeles, 54 Gal. 3d l (1991 }. a " Cal. (Im "t Codc § 65800. Derr Cal_ Cottst_ ,ir[ XI. § 5(0 C(difomfa !'edoal Savm7 s ruui Loun s� City' of I os Akgdes, S4 Cal. 3d 1 1:3 (1991 ) (rejcctutg static and ccmpartmentaliztd description of municipal alleirs), z Gh of Glcafdgk r. Tiimsdcn, 45 Cal. )_d 93, 98 (1.957). Institute for local Government 1 17 AN OUNCE OF PREVENTION: Best Practices for Making Informed Land Use Decisions fees ~when they are applied equally to all landowners as opposed to when they are applied on a more individualized basis," More flexibility, however, may be appropriate if each application is likely to have its own unique circu111stanccs that will need to be addressed individually. Specificity versus Discretion, A related concept is whether to include every aspect of a regulatory program in an ordinance. This enables the program to he fully vetted politically. Ilowever, it can be challenging to anticipate every detail. The alternative is' to draft ordinances to cover major purposes and key elements, and then delegate to staff Scope of Legislative Action the responsibility of preparing regulatory guidelines that flesh out the day -to- The next step in the process is to develop a day details. Often, such implementation core set of drafting guidelines that describe the procedures or guidelines must still be intended scope and objectives of the ordinance. approved by resolution. Publicizing such Oftentimes, this type of information is developed guidelines is important so that those who are through a civic engagement process. Typically subject to the regulations are aware of the full such guidelines include some or all of the extent of their obligations, following elements: Goal. What problem is the agency trying to solve? In the land use context, answering this question will typically involve an analysis of impacts of certain kinds of land uses and why they are either beneficial or detrimental to the comillunity • Scope. The extent to which the ordinance will apply should be clearly understood fi the beginning. Often, there are particular types of projects or areas in which the ordinance should not apply. Consistency with Existing Regulations. Anytime an agency adds an ordinance to its code, the agency needs to consider how the new provisions affect existing regulations. A key goal is not to lose the benefit of desirable procedures and substantive provisions." It can also be useful to include a provision specifying how any remaining, inadvertent conflicts should be resolved. Considerations In Regulatory Design ® Uniformity versus Flexibility. There are instances where the local agency will want to treat every project the same. For example, courts are more likely to uphold local agency of the ordinance. Design elements affect how the regulation will be implemented and enforced. Thus, Navin , a sense of how the provisions will work together will help at the drafting stage. 13 \lichael A 7izl<;i, Tinin1h) 5 Hollister, M` ircella Larsen &,- Parricia L_ Curtin, Slate 6 Locol Land Use• 1_iabifity § 32 (1997), I+ San Remo Jlo[cl t: Ci1i' and C«Imty of tine hwi(isco, 27 C=al, 4th 643 (2002). 15 Zizk.i ei ,tl„ supra note 13, § 3:26. 18 1 Institute for Local Government AN OUNCE OF PREVENTION: Best Practices for Makiny Informed Land Use Oecisioris Major elements include: Locating Definitions. A typical ordinance includes a definitions section at the very beginning. This often makes the most sense, particularly if it's the type of ordinance that will be circulated separately, like a sign ordinance. But many also work in tandem with other ordinances. Under these circumstances, including all land use definitions in one section of the zoning code promotes consistency through out the code.'° Locating Substantive Provisions. Substantive provisions —or provisions that impose a duty, burden or obligation— should be located in the main provisions of the ordinance. They should not be hidden in definitions. The ordinance should be organized so that all the main obligations can be easily identified and located, Integration with State and Federal Programs. Be alert to the confusion that can he caused when a term used in a local ordinance has a different meaning under state or federal law. For example, assurrie an agency adopts a sp&ia housing assistance program that includes a definition for a "qualifying low - income household" as any family that makes less than $35,000 per year. This definition is confusingly similar to the federally defined "low- income household." ft's usually better to follow existing state or federal definitions to minimize confusion. However, where the policy choice has been made to provide a benefit different froth state and federal lays, use a different term. In this example, a term like "City Housing Program Recipient" eliminates most confusion with state and federal �overnmcnt terms. 17 Elements for Proof. Consider the elements that must be proved to enforce the ordinance. For example, a prohibition that reacts, "1100neOMIC.r "S nia) not laildscapeyards tvt(1i nolmative trees" requires proof of five elements. First, the homeowner (as opposed to a tenant) must have planted it. Second, the language implies that it must be. part of a landscape plan (as opposed to planted randomly). Third, it must be within a "yard" ( may or may not include the entire lot). Fourth, the plant must not be native to the area (defined by whom or what list ?), And fifth, what actually constitutes a free may not be clear. A simpler approach would be: "only trees front (lie city's Native Tree List may be plalited on Residential Lots." Here, a list of native trees incorporated by reference would reduce the inquiry to two elements: (1) existence of a non - listed tree (2) on a residential lot (presumably a designation in the zoning code). (This latter provision also eliminates a double negative.) Variance Procedures. Most zoning ordinances include a variance procedure. Variances provide a safety valve to assure that ordinances are applied in a way that is fair to all property owners. But variances also protect agencies from `facial" challenges to an ordinance." A "facial" challenge usually seeks to invalidate an ordinance as written. in order to make such a challenge, the owner must shots that it is impossible for the ordinance to be applied in a way that complies with the law But this claim cannot be trade when a variance is available, because it affords the agency the opportunity to change the ordinance's application to avoid an unconstitutional or illegal result. Economic Variance Procedures. In addition, a special economic variance can be used to protect against claims that a regulation amounts to a taking of property This type of variance does more than just provide a second chance to review an ordinance. It also requires the chadenger to submit additional information to demonstrate the alleged economic loss, -,vhich is necessary to determine whether a taking has occurred. See sample economic variance at �i<vt�lvr�a lg peg�ta�tttt�s., Po )d at §3:11 j7 r1I, at § 3:25. la sic for exiunph 11hunc Nrtilders A5ti'n v Coy of iAopt, 00 Cal_ App_ 4+ li 188 (2001) (litid3ng thstt the presence of n vnriitncc procedure defea[ed a facial takings claim). Institute for Local Government 19 AN OUNCE OF PREVENTION: Best Practices for Making Informed Land Use Decisions Thus, the variance allows for a fully inlormed decision. If the agency determines that the regulation will indeed result in a taking if applied, it can grant the variance or alter the regulation. On the other hand, if the regulation does not constitute a taking, the variance helps ensure that the administrative record will contain facts that support the agency's decision. Create Mechanisms to Ease Enforcement. To the extent practicable, place all requirements into a single document or application to make it easier for staff to determine that all conditions have been met. For example, many inclusionary housing ordinances require that all the conditions of the ordinance be expressed in a single document that is recorded against the property. This does two things: first, it creates one point in the process to assure that all the conditions are met; and second, in recording the conditions, the agency assures that further financing and sale of the property will be conditioned on the local agency actions. 1, 14 to4J Avoid Double Negatives Double' confusing. For example, use "tirri untimely;" Often the double neg the first :drifts are. not iminediatel LL's often helpful to map the regulatory design by creating a flow chart that starts with the regulatory goals and moves through the process of implementation, In most instances, the chart should integrate the relevant steps in the development approval process to ensure that the new ordinance complements existing regulations. The flow chart - will help identify critical points where enforcement can most easily be managed. It can also be helpful in assigning responsibilities for the various tasks that will need to he undertaken to achieve the regulatory goal. Once completed, the flow chart can guide drafting, I I Clear Wording A great deal of thoughL should be put into the terms and language used in the ordinance. An ordinance may not be enforceable if it cannot be reasonably understood. Vague terms also increase the risk of inconsistency and misinterpretation, which can expose an agency to claims that the agency applied its laws in an arbitrary or ......... hort wards, avoid .. _..._ ._.. .... _ . __.. . misinterpretations, use words like "must`! and "will express thoughts in Identify the "Who" and the "What." Identify who will receive the benef it.or burdep created. by the:::. gatives are Ordinance and what the:.benefit::or burden is .:. " instead of "not res that get through Draft for the Long Terre. Outdated terms `create apparent because confusion For example; be cautious about singling out technologies (like GIS) Instead, focus on the u wy air_LVI itot? tCV if I acf ai akt tr1JWes wlL..;Jn a sentence. Use Simple Definitions. Use dictionary definitions whenever possible and do not use definitions to change the common unde mea of terror 21 Avoid "Shall" and "Shall Not," Many ordinances rely on the word "shall" to designate a responsibility or duty to take or refrain from taking action. But has several meanings, some of which are directory, not ` mandatory. Thus, "shall" can be interpreted to mean something closer to "should. " To avoid. potential end result 2 3.Likewise, :consider the potential for ' change when assigning responsibilities. Assign lasks:to senior. positions (or their designee ), like a C&nmunity..services dlrectar :that are.likely to survive a rests ucturlilg . D Rush It. The process of adopting legislation Involves an.investment of agency and decision -maker time -Make optimal use of that time by doing the necessary groundwork to produce aclear. document. that achieves the agency's objectives. t " 7izki et al., .ut1mi note 13, § 3:30. apps. 3A -L. )0 Millet r. California, 413 U_S_ 15, 27 n_10 (1973) (minding that Lii ordinance must convey sufliciently definite Nvirning a; to the proscribed conduct when measurcd h) common understanding). 21 kohtrt J. Martineau. Ovaliiitg tebislatiorr and Rtrlrs in Plain Fnghsh 25.(Wesl Publisliirtg Co., 1991). 22 Icl. at 79 -8U. 23 7izk,r et al., atpra note 13, § 3:29. 20 1 Institute for Local Government AN OUNCE OF PREVENTION. Best Practices for rvlah; ig Inlof177P(1 Land Use Decisions discriminatory way' The risk can he especially great when a regulation involves constitutionally protected rights —like free speech." There is no clear --cut formula, however, that will assure precision in every ordinance. Drafting is a craft. Repeated review and editing is a must. Fundamentally, legislative language should be so clear and exact that it can only be applied in a way that is consistent with the agency's intent," Thus, commonly used words or terms that may be subject to varying interpretations should be clearly defined, Ambiguities in language, however, can arise in surprising and unanticipated ways. For example, many local agencies have agricultural zoning regulations. But many do not define the term "agriculture" with a great degree of certainty. Consider the following examples: • A landowner who runs a contract harvesting business builds a maintenance facility for his (and other) harvest equipment. Neighbors claim that the use is commercial, not agricultural. A biotech company maintains a herd of goats that it injects with proteins to research a cure for cancer. Neighbors claim that the use is medical, not agricultural. A tomato farmer decides to grow hothouse tomatoes and builds gi on 100 acres of otherwise protected coastal farmland Neighbors claim that this practice is contrary to the traditional definition of agriculture, In each case, the questioned use arguably fits a broader definition of "agriculture," even though it was prohahly not what the drafter had in On the other hand, the local agency may not want to regulate the every term so closely, and may elect to rely on the traditional (and evolving) use of a specific tern like - agriculture." Of course, the drafter cannot anticipate all contingencies, but must nevertheless strive to anticipate when the the agency's own regulatory program; agency will want the ordinance to apply and how those subject to the regulation may try to avoid the ordinance's application. Drafting clear definitions for key terms enables an agency to exactly describe the scope of the action Some drafters wait until an ordinance is close to final form before drafting the definitions to avoid inadvertently leaving key terms undefined. It may also be helpful to have a layperson review the draft ordinance to determine whether all terms have been adequately explained." As with much of writing, one of the hardest parts of drafting is developing a first draft. In many instances, staff - will look to see how other agencies have implemented similar policies (see sidebar "A Caution About Cut and Paste Drafting "). A process for fully vetting the drafts, hoiwrver, assures that the fim draft does not haw to he peifett liideed; department heads and others will often provide better, more detailed com vents in response to an "average" first draft. in other words, treat the first draft as just a starting point and rely on the review, comment, and editing process to tale it Ow rest of the way z+ Gr�yncd t: City of Ro(hfo'd, 408 US _ 104 (1972). Zizka cl A srip o na €e 13, §3:23 2 0rnYm:d v City rf Roclf mi, 408 U.S. 104 (1972). 21 \1;irlirlP;tU. Silp F(t Rote 21, 21, ;ll 25. 27 7izk.r et ul., supra note 13 § 3:11 Institute for Local Government 21 AN OUNCE OF PREVENTION: Best Practices for Making Informed Land Use Decisions ,fits: of.the Typi al Ordinance Responsibility for Drafting Generally, the agency's attorney has ultimate responsibility for ordinance drafting," although the attorney can also play more of a reviewing role. The drafter should consult with all the departrnents —such as planning, finance, code enforcculent, building inspection, and the lire and attested by'fhe coon. y clerk 3s department —that are likely to be involved in enforcing an ordinance. In addition, the actual drafting may be easier after the agency engages in a searching process o[ program design. For many land use ordinances, this would involve getting input from the planning commission and often the public generally through some kind of civic engagement process. ImClllallOnal Lrstitute of tlitnicipal Clerks, ,' ajival fw Dt« fling Onlntunccs & Rcsolulions 3 (1999)- ' Lizka et al., stipla note 13, § 3:6; \lartineau, ,mpra note 21, at 39. 0 CnliJurnia Hotel ? A1oid Assaeialion v. lruiusniul wdfnr Commission, 25 Cal. 3d 200 (1979). 31 Cal. Govt Code § 36931. }' Ca[ _ Clov'r Code § 25120. 33 ,Martineau, supra note 21, at 119. 34 Cal, Clodl Code ti 36932. Cal. C :ovt Code § 25121. See, e.g - Cal_ Gov't Cade § 41 (requiring, city atuome) to frzune all L , rdi[rittccs ind re- olulions required by the leeislarivc hody)- There is no pandlel statute that applies to county counsels. 37 lntcmauunal Instiuue of Mu[sicilaal Clerizs, suprn cote 28 al 1. 22 1 Institute for Local Government AN OUNCF OF PRFVFNTION: Best Practices for Makilig Inforined Lind Use decisions CHAPTER 4 Building the O vtrvstri Iecorl IN THIS CHAPTER What Goes Into the Record What Does Not Go Into the Record Assembling the Record Hearing Audiotapes and Transcripts Organizing the Administrative Record Final Review and Certification imple file and record keeping is important to good decision - making. It is also an essential element of Managing the risk of kind use litigation. In most cases, courts usually do not review a decision to see if the agency made the "right" decision; instead, they review the record to determine whether there was enough evidence to support the decision. Thus, the ultimate objective for the aclmillistrative record is to assure that ......... ........ ........................... ......... .. ......... ....... .. ......... ......... the evidence in which the decision - maker relied is recorded in a manner that will document holy the decision was made.' CoUlIS are reluctant to uphold the agency's decision without the entire record hefore them.' When a land use decision is challenged, the agency must organize all the documents and uluaterials relevant to the decision to form an adlninistlative record. This includes all wriUcri doctments, testimony photographs, maps and any other submitted evidence available to the decision - maker that could have influenced the final decision. r Katherine F_ ~tone & Lisaheth U_ Rotlrnian, Piepming a DefensibIc kdmiiiim; tithe Reroid, City Attorne)'s t)epnrmtent spring Conference, Leaguc of California Cilies (Xb) 2f1U See, e_g -, Protect Oirr Wlaer c Cowity of.11erred, 110 Cal App. -iih 362 (200)_ 11a4hrm A. Cirr any! Gnuily of Sau Fruncisru, 18b C.A. App ail 702, 711J) (198b): Fosrer r. Civil Scn. Conzm'rn, 142 Cril, App. 3d H 4-)3 (1983). Institute for Local Government 23 AN OUNCE OF PREVENTION: Best Practices ror Making Informed Loncl Use Decisions What Goes Into the Record - file administl record includes any document that was part of the official decision - making process (see sidebar "A Checklist for the Record ") Administrative records vary considerably in size depending on the decision being made. Granting a permit for a convenience store based on a negative declaration Nvill generate a smaller record than certifying an environmental impact report and approving a general plan amendment, zone change and subdivision map for 2,000 residential units. Regardless of the size of the record, the agency should act with care to implement processes that will ensure that the record is complete and preserved. You never know when you night need a record. Typically, the local agency will have systems in place to collect documents like staff memoranda, consultant reports, correspondence, and other broadly circulated documents, in land use cases, photographs are also useful for court proceedings. It is unlikely that the judge will be as familiar with the property as the decision- makers. If there is a site visit, this should be documented with photographs, maps, and perhaps a video. All evidence introduced at public hearings should also be copied and included for the record. A number of other considerations go into compiling the adminisLiative record Getting All Evidence Presented at Hearings. Computer presentations and other demonstrative evidence like maps and visuals are often omitted because they were not collected. Some agencies require speakers to submit duplicates of all material to the agency. Another policy is to require that presenters provide reduced (8 /z x 11 inch) duplicates of large -scale maps and other exhibits. if actual duplicates are not practical (as for physical models of a project, for example), a list of all materials submitted into the record should be maintained . Seemingly "Unconsidered" Information. The record should include all materials and other information presented to the decision - makers, even if some of the information did not play a role in the final decision. For example, a study that was produced by a consultant but ignored by the decision- makers should- remain -in the record. Tt is immaterial that the evidence was disputed or judged by the decision - makers to be of only marginal relevance. A Checklist for th e .'RecnrcJ ............... .. Project applications ✓ Mmutes.and tran..scripts of notices and orders ✓ Descripttan of `property or area at hearings` ✓ Environmental review documents issue ✓ Consulta.n# reports ✓ Relevant por tions of tl e general ✓Relevant correspondence ✓ Written testimony. plan; specific plans,. zoning V "PUbli'tcomrr�ents �� _ .✓ �Tbefinal "'�de�tslon "� "ancl " "no'tice .................. ordinances,.:and . otlrerpolici.es ........ All staff reports thereof to the applicant' ✓ Any proposed decision by a Ail admitted exhibits ✓ Oral evidence given at a hearing hearing officer ✓ Plats, maps plans, drawings, ✓ The final decision embodied. Any rejected exhibits in the photographs, .deeds, and surveys in an ordinance, resolution or agencys possession statement of decision X Submitted wr €dten comments ✓ Records of mailed and published ✓ Any other relevant information 3 Michael iV Zizkn, Timothy S, Hollister, M,- xcella Larsen and Polricia F. Curtin, Slate & Lual Luna Usc Liabibo- 4 9:7 (1991). Many stottaes (like Government Code section I054.6(c) and Public Resources Crude Section 21107 O(e)) require nanscnpts, FUTLt1CI, R muiscripl is generally necessary to demonstrate that the decision is supported by sttbsl.uitial ecitlrnce in light 01111e sclzulc record and demonstrate exhaustion or [A lure to exhaust remedies. ' See Cal. Cis. Pruc. Cock § 1094 6(h) and (D. 24 1 Institute for Local Government AN OUNCE OF PREVENTION: Best Practices for Making informed Land Use Decisions Reviewing courts are required to consider the entire record, not just those portions that the decision -maker deemed relevant. •_ Materials Incorporated By Reference. Do not overlook documents that were not physically presented to the decision- makers in connection with the challenged decision, but are referred to or incorporated by reference in staff reports, environmental documents and other materials. • Supporting CEQA Documentation, include all technical studies and reports, such as traffic studies, noise studies, biological surveys, or archaeological reports, drat provide the foundation for the analyses and conclusions in the environmental impact report or negative declaration. ..... ......... ...... ....... .... ..... ......... • Relevant Planning and Zoning Documents. The record should also include relevant portions of the general plan, municipal code, and other policy documents. • "Official" E -mail Correspondence. A review should be undertaken of e -mail correspondence between staff rnetnbers and consuitants participating on the project, h- rnail may he appropriate for inclusion in the administrative record. Other staff e -mails that only reflect personal views are generally not included (see below). Finally, the content of the record may differ depending on the whether the decision is legislative or adjudicative. Because courts generally defer to local legislative bodies on legislative issues, the record supporting such decisions need only demonstrate that the action was not unreasonable or arbitrary.' Records supporting quasi-judicial decisions, however, will contain more detailed evidence about how the agency applied its policies to a specific parcel. Here, the agency is acting more like a court, and the completeness of the record is critical. The agency findings must be supported by "substantial evidence" within the administrative record. 9.;10se-Lai>Is ]t better to err on the side of inch ding a document in the record unless the agency counsel can articulate a specific reason for not including it.' What Does Not Go Into the Record Almost as important as what goes into the record is what should he excluded, Numerous documents will be identified that seemingly do not belong in the record, like preliminary drafts of staff reports or internal nleirios that relate only to procedural ...inaners.... such . -as the .scheduling .of staff:..... meetings. To he sure, local agencies should err on the side of putting documents into the record when in doubt. But there are three important kinds of documents that should nevertheless generally he excluded: c ' See Cal. Cis, f ioc. Cline 5" 1084-1097 Special pioccelurr> for CG(1r1 cases arr ecmtinncd In Public Resoutcrs Code sections 21 107- 21165.5. In a C FQA challenge, the distinction bmwen legislative .ind ruljudicalise decisions is less significant bccau =c Public Itesotn CU(IC seclions 21108 and 2 11 68.7 appsy the snh tanual evidence tell in hod) ca=_es- In the evenr a IcRislative .action is challenged in an action under •12 U.S.C. 5Culioll t983, the court tnay' still scrutinize the agency's recurd, Counly of Orange t: Superior Cozot, 11 3 Qd, App, 4th t 12003). Institute for Local Government � 25 Demonstrative photos, He this one, can be introduced into the record to underscore a point: here, the safety threat of not having adealnale pedestrian ivalhivays. AN OUNCE OF PREVENTION: Best Practices for Making Informed Land Usr D(fcisions e Attorney - Client Privileged Materials. Communications between the agency and its attorneys are generally excluded from the record. Such documents should be marked "attorney- client privilege" and filed separately. • Personal Notes and Reflections. Personal notes (which may include e- mails)m should be excluded to the extent that they reflect personal opinions. Such notes may be removed in some instances if they have not been shared with interested parties or the decision- making body. However, circulated notes and memos belong in the record. • Early Staff Level Drafts. Earlier drafts of official documents, such as environmental documents, decisions, or even the final decision itself, may also be excluded. The basis for this exclusion is the Public Records Act,' which recognizes the need for public officials to be free to develop new theories and ideas, if such documents were to be included in the record, staff is less likely to be creative and the public is less well served. The mere fact that a document fits one of these three classifications is not enough, in itself, to exclude the document from the record. The document must not have been circulated among those involved in the decision. Take for example, an early draft of an environmental impact report (Ells). Someti1T1e5, applicants prepare the earlier drafts for staff review before a final "draft EIR" is circulated. Here, the earlier drafts, and any resulting markups, should be included in the record because they represent collaboration between the _ lgency and the ....... ......... applicant. However, if agency staff prepared the early draft, and it was not circulated outside of the agency, the document is more likely to be covered by the deliberative process privilege. maybe exdud: Obviously, what can and cannot be excluded from the record is not an exact science. It is always wise to consult with the agency's counsel when considering what should be excluded. In addition, the administrative record should include a log or list of documents being withheld. Finally, excluded documents should be retained in the agency's files for later review and to assist in a final review of the record to ensure its completeness. Assembling the Record The preparation of the administrative record is typically triggered by a formal request from a person or organization considering a challenge. There is generally no formal deadline for making this request." Once received, however, the agency mLISL Prepare the record and mail or deliver it within l9Q clays after the date of the recquest. For CFQA matters, the record must be prepared and certified within 60 clays.` The party challenging an agency decision is responsible for the cost h Caution should he exercised as to what is put to e -mails because they can be discoverable public rccords. A petitioncr who discovers e -mails may use thcin to au the retold. 1h4soo a. Stopoioi Couii, 3l Cat App 01 1136 {1990). 10 .See Times Mirror Co. e Supt i im Corm, 7) Cal. 3d 1327, 1342 (1991); MCI; 1'I<oaler t: Sulierkir Coiut, S1 Cal. App. 401 11 19 (200(1). See Cal. Civ Proc. Code § 1094.6 Hnu'ever. a request thus[ he filed widtin W days of a Tiling, of a CEQA action Cat Puh. Res. Code s 21167.6(a). - Cal. Gi , Proc. Cade § 1094.6(c). 13 Cal. Puh. Ites. CAde s 21167.6(b), 26 Institute for Local Government AN DUNCE OF PREVENTION: Best Practices for Making Informed Land Use Decisions of preparing the administrative record." Many local agencies require that the challenger pay the estimated cost before preparing the record and the actual cost before the record is certified. It may become clear at a Bearing that the decision likely will be the subject of a court challenge. In these cases, agency staff, working with the clerk and agency counsel, may begin preparing the record before a request is made. Indeed, this advance knowledge ensures that all the evidence necessary to support the decisions is included. If the agency's decision to approve a development project is challenged, the agency may allow the applicant to prepare the record. Similarly, petitioners in CEQA cases will often assert their right to prepare the record." Local agencies, however, should be cautious about this approach. Such records may be organized in a manner calculated to influence the outcome of the case. Moreover, the applicant probably has less access to some of the materials (such as items presented at a public hearing). However, the record must still be certified by the agency, and the agency can refuse to certify an incomplete record or portions that include items not properly part of the record. A good. starting pointing for organizing the record is to convene a meeting of all staff who played a role in presenting information to the decision - maker, The focus of the meeting should be to outline the general chronology leading up to the agency decision, including the dates of each hearing of meeting before the decision- making hody, This process will assist all members of the group in understanding the types of evidence that must be included in the administrative record. The agency's attorney should be involved in determining what goes into the record and how it will he organized. Development approvals are frequently granted in the form of concurrent agency approvals of a various land use entitlements or regulations, For example, a large project may entail certification of an environmental impact report, approval of a general plan amendment, a zone change, and a tentative map approval. Even if the applicant only challenges one of the actions (for example, a condition imposed on the tentative map), it may be better to include all documents associated with each action concurrently approved because of the overlapping relevance of the evidence. In CEQA cases, all approvals rust be treated as part _.. .. _ ... .......... ... _ base Studw The Cost of a poorly Organized .Record poorly organized record can increase the agency:s judgmeri #and ardered :the trial court to direct the exposure 6. liability. How can the court determine if agency to set aside its approval i3f the project. The court a' decision Is reasonable Oraupported by substantial - admonished the agency: evtdence:if rt cannot find the evidence on which the When practic appellate law are at least „ agency relled The. consequences ca n. be serious. .there three immutabfe rules: first take great care to In one case a court was presented with a record prepare a complete record second if it is not iO the __consisting -af 94-volurrtes :most af- which - vuere- 'neither ........ recorp " 'it did not ha en an&th d; when iii daiibt, P� properly. indexed nor coherently organized. ' "B Many .... refer back to. rules one. and two-In this case, the documents were .u.nfabeied; .o. their incomplete; and parties tot ally Missed the appellate niark byfailing to .. Borne attachments could not be differentiated from provide an adequate record for review,. the documents themselves, The court could not locate the required findings, and as a result, reversed the la Cal. Civ. Pox. Corle § 109 -1.5(a) Ctregory M. Kunlun, ill ilia Iing PIocerdings&I Revicw, in 0-1', Cali lmniarldntinisIiativL ' Mcmdoams § 10.14 (ail t d. 2004). " Rochelle Browne, The Admoustiative Rccod, in C-LB, C:alifomi,iAdniinislla ive 14un(IaToiu § °t_S (3d e(t 2004), '7 Sic Cal, Pub. Res. Code § 21167.6())(2 ). is P,olm Oar Milo v Comity of .Ward, lard. 110 Cal_ App_ 4t 1t 362, 372 (2003). Institute for local Government 1 27 AN OUNCE OF PREVENTION: Hest Practices fur Nakirg informed Land Use Decisions of one project, and some attorneys recommended handling non -CEQA approvals the sarne way. Typically, it's best if the agency attorney oversees preparation of the record with the assistance of those responsible for its various components. For example, in a challenge to a conditional use hermit, the cleric would normally be responsible for collecting the public hearing notices and preparing the transcripts of the public hearing leading up to the conditional use permit decision, while the staff planner assigned to oversee the application would be responsible for collecting and organizing the staff reports, environmental documents, and all correspondence or other transmittals relating to the project. Hearing Audiotapes and Transcripts Public hearings are usually crucial to the agency's final decision, and it's important that they be recorded accurately. Hearings are often sufficiently recorded on video or audiotape. But for important cases where litigation is likely, it may be wise to have a court reporter present because tape recordings and videos can nialfunchon and are difficult to transcribe.' As difficult as it may be fora court reporter to attend a public heating and transcribe: the proceedings, it is considerably more difficult to transcribe from an audiotape, where staff, the legislative body, and members of the public speak without identifying themselves. If the meeting is videotaped, a copy should be provided to the transcriber, and staff should assist by identifying the key participants. Once the draft is completed, the cleric, legal counsel and the relevant staff sl review it to verify that each speaker is correctly identified in the transcript. Organizing the Administrative Record The administrative record should be organized in a way that helps the court, the public, or any interested person pinpoint information, Thought should be given to what works best in each particular case. Chronological organization is common and works well for the typical application process. But the nature of the challenge may suggest a different organization. For example, if the adequacy of notice of the public hearing is at issue, the logical organization may be to combine all of the public notices, mailing lists and similar documents in the first volume of the record. The size of the record can vary from a mere handful of papers to 40 or more numbered volumes. Customarily, the record is prepared on 8 x 11 -inch paper and organized into volumes that do not exceed 300 pages. A judge is not likely to have the time to read the entire record, Thus, the record should be organized so that evidence is easily located. An easy -to -use record is also likely to assist parties in citing to the record in- thcir ....written arguments...... ...... .. ......... ..... ..... Some of the things that make the record easy for - the court to review are easy to do: ® fable of Contents. A table of contents should designate each document by title, date and, if applicable, author, as well as page number. If there is more than one volume, the complete table of contents should precede the first volume of the record. Each subsequent volume should provide either the complete. 19 Scc WaUs v Civil Scnvice 5o ud, 59 Cal. App. -}tit 939 E 1097). ' Rochelle firovtte. The Adrmii strnIivc Record, in C ER. Cali fm nin AcbmlmbnIive XInirdamus � 4.9 (3d ed_ 7004)_ 28 1 Institute for Local Government AN OUNCE OF PREVENT {ON. Best Praclices fur €vlokmy Informed tat3d Use Decisions table of contents or the portion of the table of contents relating to that volume." s Index. Index each document to show the date, short description, volume number, and the volume page number. This master index goes With Volume 1, but it is helpful to include it in each volume. Descriptive Titles. Describe the documents in the index in a way that tells the court what they contain. For example, a title like "Letter - from Mr: Srrrith dated 6130 105" does not Delp if' Mr. Smith wrote several letters. Instead, use more descriptive titles: "Letter f t Mr: Smith dotted 6 1.30105 describing concerns that draft EIR did not address impacts ort local hydrology," Tabs. Tab each item identified in the appendLx in addition to consecutively rlutnhering the pages in the record. The record should also be marked to permit quick review. The preferred method is to chronologically paginate -, the , administrative record using a - "Bales Stamp.° litigants and the court prefer this method because it allows them to find infonnatian more easily" Typically, the agency will copy all of the documents in order to maintain the integrity of the original documents. Final Review and Certification After the administrative record is fully assembled with the table of contents, the individual most familiar with the record should carefully review it to ensure its accuracy and completeness. Upon determining its completeness and accuracy, the clerk should .prepare and ....eaecttte.....I cet-tifiratrot1 . . . ........... to be placed at the front of the first volume of the record. A record that has ]lot been certified can he objected to as hearsay. Copies of the record should he made for each of the parties to the litigation, as well as the court. Further, it is common in many jr]risdictions to provide an additional, "courtesy" copy of the record — or at least the most relevant excerpts —to the court for the court's convenience .23 Some courts do not retain the administrative record. Those courts that retain the. record may damage or lose it. Some judges and clerics write notes on the record. Thus, it is a good idea to keep an extra, clean copy. This is also useful to the record early Trial exhibits are not generally forwarded to the court of appeal until shortly before the hearing. The appellate court will need the record to write its hench opinion. zI _Joel D_ Kaperbug, l he i1cil�rirtic[rntiti Rca�rd, League cif Califnn�ia Cities 2003Arnnuel Conference. Joi1v. l ity rltlumeys/City Clerics Session (2003). Id. to WA: case, a petitioner submitted his own uncrrtilied record, which contairsed numerous errors. In respoisse, the local ,h gency prepared, certifier) and filed its own record. The ,agency per uadt rd the jttdge to use its record, which had some signilicant differt from the peutiorncr . rcculd M Institute for Local Government 29 AN OUNCE OF PREVENTION: Best Practices for Mdking Infarmed Land Use Decisions OLIVE D i x - 9 vi U. .................... . . 30 Institute for Local Government AN OUNCE of PREVENTION: Best Practices for Making Informed Larid Use Decisions CHAPTER 5 IN THIS CHAPTER Balancing Detail and Brevity Organization , - Wo'' �-, no- he staff report sets the stage for good decision - making by presenting key information in a way that makes it easy to grasp the critical issues. Staff reports are also important because they are one of the places within the administrative record where the agency's underlying concerns and rationale may be cogently explained.' Staff reports are usually produced for both legislative and quasi-judicial decisions. Reporis for legislative decisions usually highlight the key policy considerations. Reports for quasi -judicial decisions typically include more technical information about how particular policies and ordiriances should be applied to the application at issue. A well- - �vritt.en report can validate an agency decision, even when it does not reflect staff's recommended course of Action. in contrast, an incomplete or contradictory report can pave the way for a lawsuit against the agent} Src Motoung -Fom% ludiuliics V. Cily ( ]HIMi, 181 Cal. r1pp. ail t35Z (19136) ttlic npinlon�s oI siall con�tlt W evidence upon which the �igenq may rety)- Institute for Local Government 1 31 AN OUNCE OF PREVFNTION Best Practices for Making Informed Land Use, Decisions Balancing Detail and Brevity Officials have little time to read lengthy reports. Brevity is therefore appreciated. The challenge for the drafter is to balance this with the need to provide sufficient information. Here, there is probably no substitute for experience. Staff reports need not address every potential inquiry yet they need to provide enough information for the decision -maker to snake a well - informed decision. Striking this balance requires the drafter to make decisions about what information to emphasize. There are a number of formal techniques that can help: • Standard Headers. Standard subheaders, like "Fiscal Ioipcct," "Plan Consistency" or "Recommendatimi," provide structure and help the drafter focus on the key issues. New subheads, such as "Public hivolvement" or "Housing fnrpoct" can he added to emphasize subjects in which the decision -maker has expressed a specific interest, Short Sentences. Use short sentences. Clear language helps decision - makers refer to the report during the "heal" of a discussion. • Matrices. Matrices provide a quick way for readers to gauge the important information associated with the proposal.' • Bulleted or Numbered Lists. Bulleted lists (like this one) help the reader sort through information. They also free the drafter from developing wordy transition sentences bet ideas. Finally, attempting to achieve the right balance bclween critical tiilormatiorl Mid hr vily in the staff report is seldom a one- person job. Peers and supervisors should review the report to assure that key information is not omitted and to edit out unnecessary detail. Organization Now the report is organized will influence how the issues are presented and analyze[. There ► " " "MUM tile 'ApproVals. "A1Ways identity any additional actions or approvals that must: be obtaifredfromI the agency or other agencies before the project can proceed. is no "right" organization — actual styles vary. For example, the chronology below places the recommendation section before the analysis section. But many agencies reverse this order. Regardless, keeping format, font, and language consistent makes it easier to locate specific information.' This section summarizes many of the "t y pical" sections formal irr staff reports: Title, Summary, and Cover Sheets The title should he descripiive enough to inform the decision -maker of the issue presented (fot example: Reviciv of Tcntcuivc iMa1) Aphlicat ion on 120 -acre Parcel Located at 300 LVcstgafc Road). Many agencies also include a short two- to three- sentence summar) to frartle the issues for consideration. Satan Mk-(k & Marya \loans, Ft imatting and Wi tiuy the Stalf Report, Zoning Aactice (Novemher )004). Arnold Alvarez- (,tisnrzn & Roger A. Colvin. Legal lYrHwg 101: ftf (tioive Cit1' Repoil Wi itin� (May 1999). 32 Institute for local Government AN OUNCE OF PREVENTION: Best Practices for Making ]nformed Land Use Decisions Background Summary The background section summarizes important facts or events leading up to the point of decision. This is a good place to summarize the process and the staff role in developing the recommendations. For example, if the report involves a recommended ordinance that was developed with significant public participation or stakeholder involvement, this would be an appropriate place to note that involvement. Likewise, if the report involves a typical application, the background section can summarize the meetings that staff has had with the applicant. Recommendation The recommendation is a concise statement of whether or not the decision - making body should approve the item under consideration. Recommendations should be limited to a single "motion ready" sentence (see sidebar "Recommendation Tips ") that completely explains the recommended action. For example: specific recommendation, this section should state "Staff has tic recorr itmidation on this matter" or "For information only." Proposed Findings Draft a proposed set of findings based an staff's recommendation. For more information on drafting findings, see Chapter S. Discussion of Proposed Action The discussion section builds the case supporting the recommendations, Findings of fact, analysis, and commentary should each be presented in separate subsections. Avoid mixing factual information with subjective conclusions. Be cautious about using absolute language like "never" or "always," or "only"—which might be used against the agency if the decision -maker elects to take a different action than what is included in the staff recommendation. Discussion elements will vary depending on the type of decision (including CL ICY it's legislative of "Motion Ready": Introduce ordbiance or quasi- judicial). But typical elements include: 5 approving a negative declaration orr environmental impact and amending the zoning ordinance. "Motion Ready Approve the negative declaration oil environmental impact arrd amend Section 5 - 12 - 120 of the zoning Code to allow a post office and public and private postal services io the C - Zone, subled to an administrative use permit. Here, the second recommendation is "motion ready" because a decision -maker need only say, "I move to" before restatinV the recommendation • Site Information Data. Basic information includes information about the site, current zoning and surrounding land uses, Additional information would include recent land use verbatim. Sometimes the I will include conditions or alternatives. For example, if a request for rezoning conflicts with the general plant, stuff might recommend an alternative that would not be in conflict. If there are multiple recoriwieridations, each should be listed and numbered separately. if the stall report carries no agen a "suffl wit out attic irnents • if the staff recommendation differs from that of an advisory body, such as the design review board, clearly state the difference in. the recommendations. List both recommendations, with the advisory body recommendation first: Advisory body recommendations should be accompanied by attached minutes that reflect the recommendation, + Cite of San Luis Obispo, i witial for Piepning C:nmicii Agenda Reports (IMarch 200). �tivart ALeek & Mnl i+forris, f); motthig and liiiting the Slcijf Rcpmt, Zoning Pi'uctire (November 2001). CiLy of San Lies Ohispo, sujmM unte 4. Institute for Local Government 33 AN OUNCE OF PREVENTION: Best Practices for Making Ilitorined Land Use Decisions actions (such as rezoning, conditional uses) in the area and a summary of existing and proposed public facilities serving the site, including sizes of water and sewer lines, and classification and condition of roads. Finally, any other relevant information, such as transit issues, traffic counts, environmenuil data, cultural site issues or general safety issues should also be included. Legal Issues. In some instances, it may be necessary to explain the effect that a state or federal law OF regulation has on the decision. This section should be reviewed, if not written, by the agency attorney. Often an opinion from the attorney will be included as an attachment. • Staff Analysis. This section should present Description of Fiscal the decision - malting criteria fi plans or The fiscal impact secti Impact on identifies how mach development codes with comment on how the proposal will cost the agency and how such the project meets or does not meet these costs will be financed. A chart or table often criteria. The analysis should also evaluate the communicates fiscal information better than a consistency of the proposed action with all narrative desci But narrative descriptions applicable plans and include excerpts from are still used to draw a conclusion about financial relevant written policies, ordinances, and neap data," Key issues to address in the fiscal section designations. if necessary, this section should include the following; also include any specialized impact analysis. • Total Cost. How much will the recommended Pending Data and information. Summarize additional data or information that has trot yet been submitted. • Other Agency or Department Comments. Include comments froth other affected agency departments, commissions, committees, advisory bodies, or outside organizations. It is not usually necessary, however, to cite the action cost? Is this a one -time or recurring cost? Explain the basis for the cost estimatc, referencing the source document, such as a budget or financial plan. • Sources. Identify the sources of funding or revenue. Will it come from grants? The ,general fund? Fees? Will debt financing be required? is it necessary to transfer funds from somewhere else? OF attorney unless Lhere are specific legal issues involved. In citing concurrences of depar heads, titles should be used, not proper nanics. Fimilly, il' stall recommends conditional approval, the report should provide clear guidance on what conditions must be met, and by what date. 7 kt. 4 lit • Comparison. Cost estimates alone often fail to provide sufficient perspective. Fxplain how the estimates compare with preViotts estimates on the projects or similar costs on other projects. Impact. Are existing; resources adec{uate? If not, how will Lhe extra cost be funded? Are there any revenue or cost offsets? if a new appropriation is required, can the agency 34 1 Institule for local Government AN OUNCE OF PREVENTION: Best Practices for Making Irfooried Land Use Decisions afford it? What is the impact on ending fund balance and working capital? The fiscal impact could include either savings or costs, on either an ongoing or one -time basis. When recommended actions are neutral relative to cost, this should be stated in the fiscal impact section. This section may be omitted when it is clearly inappropriate. Discussion of Alternatives This section should present reasonable alternatives to the staff recommendations, including taldug no action (if this would be reasonable). A brief discussion of the advantages and disadvantages of each alternative should be included, with an explanation of why the alternative is not recommended. Cor most prajects and proposals that require an environmental impact report under the California Environmental Quality Act, the discussion of alternatives should be consistent with (and perhaps summarize) the discussion of alternatives in the environmental impact report. In most cases, it's good to limit the alternatives to those included in the environrrrental review. If different or additional alternatives are listed, explain why these alternatives were not reviewed as part of the environmental review process. The recommended action(s) should not be restated, since this section is intended to outline alternatives to the recommended action. If no realistic alternatives can be identified, this section should be omitted. Attachments Attachments supplement information in the report. Examples include consultant reports, minutes, maps, site plans, or contract provisions. All attachments should be. referenced within the staff report. Some thought should be put into what documents are attached to strike the right balance between brevity and providing sufficient documentation. The attachments should be well organized, numbered, and similarly labeled. Thus, when a reference is made to an attachment within the report it can be referred to by both its title and . label. For example: Finding .j.. e Right T Choosing the right trarlMion or' Clchnn ivoi 171Cty CISSISt tI1e.Clrllftet .. focits on the elemerits if1r1C lncorbbrcite Lleor 1CLr1 ttC1 ( Demonstrating Cause and Effect: "because, since, Adding a Point: "moreover, further, furthermore, also accordiingly, thus;: therefore as for this reason, and, in addition; besides, 'what is more, similarly, nor therefore, as a result, consequently, it follows that." °, along with, likewise." 'Providing an Example "for instance, for example, as Restating: "in other words, that is, this means, in one example to ate but. one example, one case of this simpler terms, in short, put differently, again, put nature,`likewise,:another `':.: �: �._:_ ...___. limply.....:.. Showing. Deliberation: "granted, to be sure, Contrasting: "but, instead, yet, however, on the one admittedly, though, even though, even if, only if, hand, on the other hand, still, nevertheless, conversely true, it. isarue that, while, naturally, in some cases, on the contrary, whereas, nonetheless, in contrast," occasionally, provided, when, if, while it may be argued pressing a Point: "in fact, as a matter of fact, indeed, that, notwithstanding, despite." of course, without exception, still, even so, anyway, Interpreting Jargon: "that is, in other words, put that fact remains." simply, more commonly." Summarizing: "to summarize, to sum up, to conclude, Sequencing Ideas: "First.. ", Second . . ., Third " :: in short, in brief, so, and so, consequently, therefore." State initial point, then: In addition... , ...also Finally, .. „ '' Adapted Isom Cryan A. Garner. Advanced Legal Wiling and Editing 50 (Layshosc Seminar Materials. 19)7)- Institute for Local Government I 35 AN OUNCE OF PRFVFNZION: Best Practices for Making Informed Land Use Decisions The Planning Commission recommended that the plan amendment he approved. (Attachment 2, Minutes of June 12 Planning Commission Meeting) All attachments should be listed at the end of the staff report, complete with title and label number, and should be labeled consistently so that users can routinely find the information they need. Signature The staff report should include a signature approval line for the senior staff person responsible for the report. The signatory is often the community development director — particularly when the report is submitted to the planning commission. Other agencies, however, require or the agency's chief executive or manager to sign the report, but also include the name of the appropriate department head. I�raftar`S Cha�frh5t . .. - Introductory Headings Fisca.l:ltnpact From: (name, 3ltle of department head)': .. Provlde.;specific and complete information regarding: Prepared E y: {name title of report write +� total cost of. program Funding sources) Staff Recommendation Prepared in "motion ready' manner If new or higher appropriation required how txiuch and whys Stated in one sentence V If transfer required, how much remains In original :`? Stated specifically and completely account? Draft Firfdrngs Alternatives I/ Develop draft findings based on staff Offer alternative recommendations (only if they are recommendation real and reasonable) f]iscus' "'o-n �..:.Attailiments .... . Y -for public and professional reader ,Organize the attachments . V' Describe background (any past actions) ✓ Create one page summary or table of attachments V Provide clear, complete explanations Assure that all attachments are specifically V Avoid acronyms and technical jargon mentioned in the report ✓Avoid absolute terminology, such as "never," Proofing alwa s" or "only" Y y - v Has more than one person checked the report in Reference attachments in right places detail? V/ Include comments from other agencies, advisory bodies, community groups 36 1 Instifute for Local Government AN OUNCE OF PREVENTION: Best Practices for Mokiigy Infoneed Lviid Use Decisions CHAPTER 6 IN THIS CHAPTER The Permit Streamlining Act Benefits (and Risks) of Initial Concept Meetings Design Review and Other Concurrent Processes Environmental I _ Considerations Conditions of Approval Other User Friendly Policies M ; F; - � � UNN�R5+1L FtPPLSCATION FORM - g .L -'J xaauxc +:crzis':- i�cre, r. oes.n'n �v.•.o _. IPPIJ[1HTV axn _ „ c hLCiEx� - r� nil J— — . PAS- uY[c,cct v.n�n:rcf...a ire. <4ca.. r� J airness and open communication are key ingredients for an effective permit processing system for quasi-judicial decisions, however, the evaluation process should also be designed in a way that provides the agency the opportunity to fully review the substance of the application in light of overarching general plan objectives. Good evaluation procedures also reduce litigation and foster community confidence by assuring consistency and predictability. A large part of avoiding litigation is managing applicants' eXpectations. lfapplicants know what to expect rind agencies follow through on their corninitnsents, the potential for conflict is greatly reduced. The Permit Streamlining Act The Permit Streamlining Act requires local agencies to maize decisions on °development projects, " —or most quasi judicial land use decisions— within specified time limits. Legislative decisions, like general plan amendments, zoning ordinances, and development agrcellIMLs, are not subject to the Act. Failure to act within applicable time limits could result in the project Institute for local Government 37 AN OUNCE OF PREVENTION: Best Practices for Making Informed Land Use Decisions being "deemed approved," which is effectively an automatic approval of the project.' clarify or supplement the information provided in the apphcation.' The Act imposes several standards for decision - making: • Detailed List of Submittal Requirements. Local agencies must maintain a detailed list of application requirements, which cannot be changed after an application is submitted.' - The list must indicate the criteria that will be applied in cletermining whether an application is complete and the time limits for review and approval of applications.' These lists should be readily available in the planning office (or website). After the application is accepted, the agency cannot require the applicant to provide new information, but may ask the applicant to Time Limit to Accept Application, SLaff must determine whether the application is complete (meaning it includes all the information required on the list) within 30 days. If a decision is not Macle within this time, the application will be "deemed complete" and the agency must approve or deny the project on the basis of submitted information alone. If the application is not complete, the agency must detail its deficiencies.s Applicants may appeal an incomplete determination to the planning commission, governing body, or both, and the agency must issue a final decision on the appeal 'within 60 days.' ,Contact In {n... ... n The,eoi] tact information; ' Cal. GMA Code § 65943. See Janus Longnn, font titt's Gdiforr�ia bard LJse § 11.74 (2d ed. 1987 & Supp.), 2 Cal_ Gov't Code § 65940. 3 tkmiel J. Curtin, Jr., &r CeciIy T. Talbert, Cu tirrti c(difornia f vmcl Use and Hamming I ow (Soltmo Piess, 7.004 e(I,). 4 Cal. Gov't Code § 65944_ Cal. Gov't Code § 659+.). id_ 38 1 Institute for Local Government AN OUNCE OF PREVENTION: Best Practices for Mat ing Informed Land Use Decisions I initial Study: Level of Environmental Review. Once the application is determined to be complete, the agency has an additional 30 days to determine what level of environmental review is required under the California Environmental Quality Act (CEQA). The agency may determine that the project is exempt, requires a negative declaration, or requires a full environmental impact report (FIR).' • CEQA Timelines. CEQA has its own timelines for making environmental determinations. For example, local agencies have a year - to complete and certify an EIR. Unlike the Permit Streamlining Act, however, these CEQA timelines are "directory" not "mandatory" meaning that a project is not "deemed approved" if the CEQA timeline is not Incl. Instead, the applicant's remedy is to sue to enforce the CFQA time limits." • HTier trnvlronmenr;at nevtew: i ime Lurm "s for _Final _Decision. After_ the._ environmental review is complete, the requirements of the What Happens When the Applicant Amends the Appiication In some eases the applicant will try to amend the Permit Streamlining Act again control. The agency must make a final decision within a specified time, depending on the level of environmental review. Action must be taken within 180 days from the certification of an environmental impact report (or 90 days for certain affordable housing projects) or 60 clays fra n the adoption of a negative declaration or determination that the project is exempt." Failure to acL within these time periods means that the application will be "deemed approved. • Consolidating Decision- Making. In many cases, local agencies bring the project approval to the decision -maker at the same Lime that environmental review is certified, therefore allowing the decision -maker to make a decision about the entire project. When this happens, there is generally no problem in complying with the requirements of the Permit Streamlining Act. •Failure to Act Within Time Limits. Failure to act within the Permit Streamlining Act's time limits means that the application will be "deemed approved." Automatic approval hinges, however, on compliance with the notice and hearing requirements associated with the proposed action." If the agency fails to provide notice, the applicant may either directly provide public notice or stye to compel the agency to act. Disapprovals. If the application is disapproved, the agency trust specify reasons for disapproval. An agency may not disapprove an application solely to comply .. With the time limits." 1'1 Cal. Cade Rep. § 15050. n Cal_ Pub. Res. Code 21151 ,5. ° tiLT XICHdimt O('C(in ,SVS. Lt Suitt• bind. COMM))], 222 Oil, App. 3d 153 (1990); Stutsct Drive Corp. r. City of Rrdlrtnrls, 73 Cal. App. 4th 215 (1999) 1° Cal (no9'L Cade § 65950(a), Eller Mcclia a Clt9 of Los Angeles, 87 ( A App_ 4th 1217 (2001). Cal, Cov't Code § 65956. C..LI. Gov't Code ti 65952.2. institute for Local Government 1 39 AN OUNCE OF PREVENTION: Best Practices for Making Informed Land Use Decisions Extensions. The Act allows that time limits may be extended once, by mutual agreement, for no more than 90 days." In addition, if there has been an extension under CL to complete and certify the FIR, the final decision on the project must be reached within 90 days of the certification," Agencies should periodically review application requirements to ensure that they reflect current demographic needs and development practices. Redundant, ineffective or outdated requirements should be eliminated. Agencies should also ensure that all approval requirements are put in writing. ✓ Take advantage of the optional pre - application sleeting. ✓ Read all application requirements carelully, be sure your submittals are coneet and complete. Benefits (and Disks) of Initial Concept Meetings The requirements of the Permit Streamlining Act can sometimes discourage the kind of dialogue betwcen the agency and applicant that keeps disagreements out of court. As a result, many agencies offer applicants the option to participate in informal pre- application meetings. Early consultation can reduce frustration and delay by helping applicants submit a complete application on the first try. These meetings also help applicants understand what decision - makers will accept and thus minimize the risk of denial. Typically, discussions center ✓ Make sure you submit proof of water and server availability (';will .Nerve ", letters); -- ✓ ]lead the applicable policies and zoning requirements for your project. Be sure your project description conforms to these legal standards. ✓ Read the County's 5tandaid Conditions and Mitigation Measures, and ensure your project description includes any apphcablr: mitigation measures. %' a detailed project description. ✓ Quick respond to your planner's requests for information; ask for clarification if you do not understand a request. ✓ Review the draft errvironinental document for your project carefully, and discuss any concerns wish )'our planner or the planner's supervisor, on the nature and scope of the project, the steps required in the process, an approximate time frame in which the project can be completed, and an approximation of the fees that will be charged. Typically this process is voluntary though some agencies encourage pre - application meetings for complex projects, like a shopping center, In no case, however, should a formal approval of sketch plans —even by staff be required. Local agencies should bear in mind that mandatory pre - application review might be considered part of the development approval process. will be required to strictly .adhere to these conditions. if you do not Have risks. A warm reception think you will be able to ccnnply, or if there is anything you do not , Lniclerstand, ask your planner_ may give the applicant a false ✓ Once your project is approved, comply InIty with all conditions, sense of security — particularly plarl5, and codes. _ 11 a decision-maker (as opposed to staff} was present. Tlp sheets can help apphr .nts avoid cornrnon pitfalls of local requirements. Adapted from the apph[ant tip sheet `Wha[ You Can On to Save Time and Money Disappointment will follow it prepared by the Santa Barbara Ceunty Community Planning Department. agency deC1570n- IZ1alCerS rt IeCC the proposal, leaving the agency Cal, Cov't Code § 6�97I_ la Cal. Cnrs''t Code § 67O50_ I. 40 Institute for Local Government AN OUNCE OF PREVENTION: Best Praclices for Making inforineel Land Use decisions Practice Tip open to the argument that reliance on staff's assurances cost the applicant time and money. Thus, it is important to emphasize the nonbinding nature of the preliminary session. The applicant should be advised that the expressions of decision - makers are opinions, and that they may change their mind upon reviewing the complete application. One practice is to have the applicant sign a form acknowledging that comments are for guidance only and that the final decision rests with the planning commission and city council or board of supervisors. The signed form may be useful later if the applicant claims reliance on the outcome of a preliminary review. Also, agencies should have procedures for preserving information and incorporating it into the retort]. Given that the project is not submitted in final form, and that the process is entirely voluntary, there is some argument that the information gathered during such procedures should be omitted from the record. The more cautious approach is to assume that a court would review all information as part of the record. The problem posed by multiple processes is that they should be designed so the agency can be assured of reaching a final decision within the time limits Of the Permit Streamlining Act. Issues arise when different boards are empowered to deny a project for not meeting a set of standards. If a project denial is appealed, the agency must hear the appeal. if the decision is overturned, there may be little or no time to continue processing the application within the Act's time limits, The alternative is to design concurrent sessions where multiple reviews occur. (See, for example, Land Use Application Review Process, page 43.) Under this method, advisory boards are only empowered to make recommendations to the main decision -maker (usually the planning commission). Under this method, the recommendation would not be subject to appeal where the agency specified in its procedures that only specific actions or decisions may be appealed (see Chapter 9). Of course, more time may he available to the extent that the project requires full environmental review (and thus an FIR). Under these circumstances, additional procedures like design review may occur concurrently. Indeed, in one case, a court found that the design review process adequately mitigated the aesthetic impacts of a project so that the project did not require an environmental impact report. Design Review and Other Concurrent Processes '['lie most basic ,application review process involves one public hearing before a zoning aclmirtistrator or a planning commission. Several local agencies, however, employ more expanded processes that involve design review board, historic preservration committee, or other board. �-5 Rou'nuni r. Cite of t3crlr�Ir'Y, 122 Cal_ ,app- 4t1i 572 (2011+), Institute for Local Government 1 AN OUNCE OF PREVENTION: Bk=sl Practices for Mating Informed Land Use Decisions Environmental Considerations Lawsuits filed under CEQA are perhaps the most frequent challenge to land use decision - making. The hest risk management strategy the agency can employ to avoid such litigation is to train staff anti, when necessary, hire knowledgeable consultants to help assure that the agency complies with CEQA. A full analysis of all the risks associated with CEQA and land use decision- making is beyond the scope of this publication. However, here are some general practices to follow to Help avoid the most common CEQA pitfalls: Mitigated Negative Declarations. Although the initial study may identify significant adverse effects, a full FIR can be avoided if Finally, when the likelihood of litigation is high, and the agency (or the applicant) intends to retain outside counsel, the better approach is to bring the applicant agrees to reduce or eliminate outweig its consequences (see C aptci b). the adverse effects. However, if there is a o Environmental Determination Appeals. Any "fair argument" that the project, even as decision by staff, a planning commission, or modified, may have a significant effect on the any other non- elected body that a project environment, the lead agency must prepare is not subject to environmental review, an FIR. If there is doubt, [lie safest route is to "` or to certify an FIR or approve `a negative require an EIR. declaration, is subject to appeal to the city 4 Project Objectives. The objectives statement council or board of supervisors. State law should be consistent with other statements doesn't specify a deadline for considering in the FIR regarding goals of the project, A such appeals and doesn't indicate whether well - written statement will help develop a the legislative body needs to resolve the reasonable range of alternatives'' to evaluate appeal in a proceeding that is separate from in the EIR and will assist in the preparation the any appeal on the project itself. The local of findings. Without a well - articulated project ordinance should specify how the jurisdiction statement, the remainder of the analysis may handles such appeals. Practt.ce 7tp After co..npleung an tniGal study, the local.agency s. hould notify th.e applicant in writing of any changes to the project that the agency proposes to.initigate potentially significant environmental impacts. The letter should specify a deadline for the applicant to accept the proposed measures. ff the applicant and the agency cannot reach : agreement on mitigation measures, the agency must either prepare an EIR or deny the project. to 14 Cal_ Code Regs 5 15124 €7 14 C:al. erode Pegs. § 15116.6. lack direction and make it hard to defend an agency's rejection of certain alternatives. Alternatives. Alternatives should be drafted that avoid one or more specific impacts." Many EIRs contain standard alternatives, such as "no alternative" (required) or "reduced density." However, the alternatives section should explain why each alternative was selected, how it avoids certain impacts, and why it was rejected, Complete CEQA Findings. Findings should explain how the agency has resolved each issue raised during the proceedings, explain what impacts are significant, what mitigation measures are feasible, why other alternatives were rejected, and why the project's benefits h 'h Litigation counsel can help spot weaknesses and strengthen the EIR to assure that it can withstand judicial review. Given that litigation counsel will have to review the report and the record any having them participate earlier in the process may not cost that much more and may make the actual cost of litigating the case much less. 42 1 Institute for coca€ Government AN OUNCE OF PREVENTION: Besl Practices for Mijking Informed Land Use Decisions Sample Land Use Application Review Process Institute for Local Government 143 AN OUNCE OF PREVENTION: Best Practices for Making Inforrned Land Use Decisions Conditions of Approval Most local agencies have a set of standard conditions drat are imposed on most, if not all, projects. Many agencies have several sets Of standard conditions that apply to different types of projects. These conditions assure that the project will meet a set of criteria for fees, public improvements, lot designations, mitigation measures, and similar requirements. They also may address the nature of the relationship between the agency and the applicant. For example, it's common for agencies to require the applicant to post financial securities (see sidebar "Using Financial Securities to Assure Compliance ") or indemnify and defend the local agency should litigation arise." A good practice is to periodically review and update any standard conditions to make sure they reflect current agency policies. To maximize the likelihood that such conditions can do 1_17c job that the) were intended to do, all conditions should lie specific and clearly tivorded, If the conditions are extensive it also can be helpful to group related conditions under sub - headings to male the document easier to understand Many projects also include special conditions of approval, ,vhich address the same general issues as the standard conditions but are drafted to meet unique circumstances associated with the project. Special conditions raise at least two issues that staff should be aware of. First, staff should compare the special conditions with the standard conditions of approval to assure that they do not conflict (it can become routine to attach the standard conditions to the application without detailed review). To the extent that they do conflict, one or both of the conflicting provisions should be amended. Second, staff should assure that any project specific, conditional approval is logically related and proportional to the impact of the development. The Takings Clauses of the United States and California Constitutions require dedications of property (and imposition of fees) that are imposed individually (as opposed to by a broader legislative act) to meet this standard. Other User Friendly Policies Many scenarios leading to litigation can be avoided by adopting internal procedures that promote effective communication with applicants, This is especially important when permit processing requires review by multiple departments or agencies. Consolidation of internal procedures simplifies the permit issuance process and increases accessibility" Promoting consistency can avoid inferences of favoritism or political influence over development decisions, another potential source of litigation,' Here are some common techniques and methods: General Information. Publications, brochures the review process, and chanties in fee structures, engineering requirements, zoning changes and other information could he posted. One -Stop Permitting. Local agencies inay benefit from creating a central point for issuing permits and collecting fees. Large Sr( 65 Cid Oh_ Arty Gen_ 21 (2002) (opining that it county tray require an applicant fora coastal development perinit to ,agree to delend, intlemndy, and hold harmless the count} in any action brought by a third tarty to void the permit). C:difornia (}I13ce of Permit As ismnce, Local Goi Ptrntit 5(Ivclndining Strotcgics (Jamwry 1944). nr SWe Cayinfo is Naiin, Fnrms, Ltd. r. C011niy of Snnl {I Rco btoci, 344 F.3d 622 (9th Cir. 2003) 441 Institute for Local Government AN OUNCE OF PREVENTION: Best Practices for fvlaking Informed Land Use Decisions Using Financial Securities to Assure Compliance jurisdictions can establislh multiple offices at coordinator must have the authority to =hake initiated f't - 0111 these perinit centers; allowing direct access to staff and eliminating needless backtracking to various offices.'' Ideally, a standardized application form for all permits would also be available. • Expedited Permit Issuance. A single point of contact and appointed revie coordinator can help coordinate reviews by multiple deharuricnts or agencies and work out discrepancies in the conlnlents received krona those agencies. To be successful, the • Regular Meetings of Staff Review Team. To help assure greater consistency between departments and across projects, some localities have established a staff developinent review team madc up of planners, traffic engineers, public safety and public works officials. This team meets regularly (perhaps every two weelcs or once a inonl1l) to re \'iewr development pi These are usually limited to staff only in order to allow= for candid discussions, ' California Office of Permit Assistance. Lvecrl Government Po oft .%vamhning Sir (Janully 1994), nstitute for Local Government 145 Proof of Financing Applicant submits proof of • Applicant more likely to Some may not be able financing or financing plan present feasible project to access adequate credit as part of application from the start until entitlements issue • Easy to implement • Spots trouble projects early Concurrency Agency leverages its • Applicant has incentive Small administrative and issuance of final permit or to complete project tracking cost certificate of occupancy e No cost to agency upon compliance with permit conditions • May be phased as development is phased Performance Bonds General security payable • Generally known and Bond companies can be to agency if performance accepted in industry slow to pay measures are not met . Assures means to • Agency must still complete project complete improvements Letter of Credit Agency gains access to • Agency usually has • Agency must establish applicant's credit if specific quicker access than that conditions are conditions are not met bonds present to access funds • Assures_means to • Agency must still complete project complete improvements Joint Bank Account Agency is named on joint • Agency has quick • Agency has to monitor to account and may access access to cash and may assure sufficient balance account as needed. Can access cash on its own is maintained be designed so that only determination . Often difficult for agency has access • Assures means to applicant to front cash complete project . Agency must still complete requirements Many total agencies require one or more of these affirmative guarantees on the applicant's financial obligation to construct infrastructure or otherMse comply with the conditions imposed on the proect. jurisdictions can establislh multiple offices at coordinator must have the authority to =hake initiated f't - 0111 these perinit centers; allowing direct access to staff and eliminating needless backtracking to various offices.'' Ideally, a standardized application form for all permits would also be available. • Expedited Permit Issuance. A single point of contact and appointed revie coordinator can help coordinate reviews by multiple deharuricnts or agencies and work out discrepancies in the conlnlents received krona those agencies. To be successful, the • Regular Meetings of Staff Review Team. To help assure greater consistency between departments and across projects, some localities have established a staff developinent review team madc up of planners, traffic engineers, public safety and public works officials. This team meets regularly (perhaps every two weelcs or once a inonl1l) to re \'iewr development pi These are usually limited to staff only in order to allow= for candid discussions, ' California Office of Permit Assistance. Lvecrl Government Po oft .%vamhning Sir (Janully 1994), nstitute for Local Government 145 AN OUNCE OF PREVENTION: Best. Practices for Making Informed Land Use Decisions Fast Tracking. Small and noncontroversial projects or particularly desirable projects (such as affordable housing) can be "fast - tracked" as administrative approvals by granting the planning director authority to review and approve them. Permit Tracking. Computer tracking systems are one of the most efficient means of improving organization, accountability and communication. Racking systems have the potential to give staff members working in separate permitting departments access to the same information, facilitating concurrent processing. Limit Continuances. Another approach to expedite permit review is to limit hearing continuances granted to applicants who are not forthcoming with clearly requested information necessary to move the process forward. One idea is to adopt a "three - strikes-- and-- you're -out" policy to encourage applicants to provide requestecl and complete project information necessary to expedite review. ;`.Custotr�er 5;v ;:p? ath kii Finally, some agencies provide that preliminary approvals are valid only for a specific time period, typically a year. If construction has not begun or final plans have not yet been submitted within 46 2 ' w 23 w Timely Infrastructure Inspections. Agencies should clearly specify the .terms and conditions for accepting the improvements constructed and financed by the applicant, who must often post financial guarantees to ensure completion of the work. Specify who conducts the inspections and in what time frame as well as the conditions for the subsequent Full or partial release of the performance guarantees. is no longer valid. However, [lie one -year time frame is increasingly out of step with the pace arul complexity of most development projects. A better approach is to base the initial life of the preliminary approval on a realistic time period that reflects the size and complexity of the project. At a rrtinitnun1, applicants should be able to apply for eXtensions for additional periods of at least one year Applicants should not have to resubmit their entire project for approval. Institute for Local Government CHAPTER 7 IN THIS CHAPTER Decision -Maker Preparation Promoting Fairness: Avoiding Bias and Conflicts of Interest Establish Norms and Guidelines Responding to New Information Malting the Decision AN OUNCE OF PREVENTION: Best Practices for Making Informed Land Use [Decisions Making Well-Reasoned, Unbiased Decisions W ell - prepared and engaged decision - makers are not only practicing good public service. (and hence politics), but also good risl< management. Public hearings provide the applicant thoughts on a proposed project. The applicant receives a lair hearing and a chance to rebut any evidence offered in apposition. First and foremost, the decision- maker's job is to apply the agency's land use policies to the project in a ivay that best serves the cotrrmunity's interests. This can involve dealing with tensions between the desire to "do right" by individual project applicants and being consistent Nvith the general plan, which is likely the result of extensive thinking and public input about Nvhat laud use policies nutke the most sense. histitUte for Local Government I 47 AN OUNCE OF PREWNTMN: Best Practices for Making Inforrned Land Use Decisions Another goal is to have all decision- makers respectfully hear and carefully consider the participants' perspectives, irrespective of whether decision - makers ultimately agree with them. Hearings that appear to be just "going through the motions" of soliciting either the project proponent's or concerned community members' input will understandably anger participants, who will be more likely to sue if they feel their views have been given short shrift. Decision -Maker Preparation The process of applying policies to a specific application can be highly complex and technical. Decision- malzers who have thoroughly reviewed their agenda packets and have prepared for the hearing are most likely to make the wisest decisions and inspire confidence in the process. They are also most likely to engage in decision - making that withstands judicial review. Decision - makers will likely have two kinds of questions as they review the agenda materials. The first are clarifying questions that can be asked in advance of the hearing and avoid unnecessarily slowing the meeting down. Staff generally welcomes the opportunity to answer questions and provide additional background information before the meeting. The other kind of question relates to evaluating information that may be an important factor in the final decision. This kind of question is generally posed at the hearing so that the applicant, the public and all decision - makers can hear the answer. Staff generally welcomes in order to assure that the critical issues are well researched before. [lie hearing. This also provides staff with the opportunity to alert the decision - maker to any legal issues that might be implicated by a certain line of questioning. Promoting Fairness: Avoiding Bias and Conflicts of Interest Hearings should be conducted by a reasonably impartial decision - maker.' A number of factors can undermine participants' faith in decision- - makers' impartiality; these factors can also provide a basis to challenge the agency's decision.' One is having a financial interest in the outcome of a decision. Generally, an official may not participate in decisions that might have an impact on the official's own finances. • Conflict of Interest Laws, These laws generally require public officials to refrain from making, participating in making, or attempting to influence a governmental decision if it is reasonably foreseeable that the decision could have a "material financial effect" (positive or negative) on that officials financial interests.; There are many kinds of financial interests that may require a decision -maker to disqualify him or herself from participating in the decision. One that comes up with some frequency in land use decisions is owning property near the property that is the subject of the decision. Due Process Considerations. The way in which hearing officers are hired can also present issues under state and federal due process laws. For example, in a permit revocation case for a sexually - oriented business, an appellate court cautioned against using lnethods that could result in practices that tie hiring decisions to an agency's satisfaction with the particular hearing officers Another basis for challenging the fairness and impartiality of decision - makers in quasi- judicial proceedings relates to having strong personal opinions or loyalties relating to either the parties in the hearing or the merits of a decision. I Geri )� Cily of Selma, " Cal. App. 401 213, 219 (1998). z Uwight 11. Merman & Robert J. sitkOW i, Pri Ct YlIi'oI Due Process in Piaclice, Pluming Coil I III issionc? - S JounloI (Stlnuner 1998), 3 See Cal. Grnw't Cade §§ 87100 and following, 4 tlnas v. Gaudy of San Licmcodino, 27 CA. 41h 1 M 7 (2n(12 }_ 48 1 Institute for local Government AN OUNCE OF PREVENTION: Best Practices for Making Informed Land Use Decisions • Personal Interest in Decision's Outcome. One court found that a decision -maker shouldn't have participated in a decision involving an addition to a neighboring property because the decision -maker was a tenant in a property that could have had its ocean view blocked by the proposed project.' • Personal Animosities or Loyalties. Strong feelings toward a party to the proceeding can also be a basis for charges of unlawful decision -maker bias," • Discrimination. Courts do not generally inquire into the motives of individual members of a legislative body without evidence of an unconstitutional motivation, like racial discrimination.' The motives of the legislative body as a whole may be considered, however, in determining whether a land use law is discriminatory.' • Campaign Contributions. Although not generally a basis for disqualifying a decision- maker,' ` receipt 'of campaign contributions under certain circumstances can require members of appointed bodies (for example, planning commissions) to disqualify themselves from participating in proceedings regarding licenses, permits and other entitlements." �.,..� T.rf.. -- • Subject Area Biases. Decision - makers in quasi- judicial proceedings should avoid statements and actions that suggest that they have pre - judged a matter before receiving full information in the course of a hearing." For example, a court of appeal overturned a planning commission's decision after concluding that a coniniissionei's authorship of an article hostile to the project pending before the commission gave rise to an unacceptable probability of bias against the project. Thus, the commissioner should have disqualified himself from participating in the decision." For more information on these issues, see the Institute for Local Government's publication, it Local Officials Reference oo Ethics Lois, available tt�Ftse Ilgljrkor visit your state's ethics agency's website. ' Cfarlt v City ,f Hermosa Reach, 48 Cal. App.4Lt 1152 (1996). " ice Mccd"ZOnc Billi(nds v. City of Torrance. 81 Cal. App. 4th 1205, 1234 n. 23 (2000) , ' County rf Rrrtle v. Rash, 172 Cal, App. 3d 848 (1985). Arnel Ucvclopmcnl t: City of Costa Mcso. 126 Cal. App. 3d 330 (1981) (motives and legislative purpose are taetOIS to be consicletecl it] determi ping whether a zoning ordinance is im alid as discriminatory). See Wvodlaml Hilts Residcnls Assoriatian v. City Councl. 26 Cal. 3d 938 (1980). �o Cal_ Gov't Lode § 84308. See Cal. Go1'r Code § 82015; 2 Cat Code Kegs_ § 18215: Sce also lt'oor land hills Rcsidcnts Association v. 01r Council, 26 Cal. 3d 938 (1980). Set' Cohan r_ Clay o(Thousan(f nubs. 30 Cnl, App. -kh 547 (199 -1). I � \usha v. Oly of Los /Imgles, 125 Cal. App. 46 470 (2004). Institute for Local Government 1 49 AN OUNCE OF PREVENTION: Best Practices for Faking Informed Land Use Decisions It is important to keep in mind that the laws relating to decision -maker bias and conflicts of interest create minimum standards, If participants Conflicts Associated With Property Ownership State laws designate when property ownershrp M ay i?seAo the level of. a conflict of interest avinn= a nftni�ara nna'c nrnnarit� Month= to -m ohth tenancies a re not considered - an interest in real property under California conflrci of lriterest rules t6 However, beciiuse of'? the broader mrnrrcn'Iaw bias rules, it may be in a decision - making process feel the process wasn't- fair, they are more likely to sue even if they don't ultirnately prevail. This is why it can be useful for land use decision - makers to be just as discreet in expressing their opinions about matters pending before them as judges are. Another issue to consider is whether a decision -maker should voltrrtiar abstain from participating in a decision if inemhers of the public or the applicant might reasonably question the decision - maker's inclination to fairly evaluate the information presented in a quasi - judicial hearing. Even if the law does not, strictly speaking, disqualify an official from participating, voluntarily abstaining can underscore a decision - maker's respect for the public's perception of fair decision - making, and it can be a prudent risk management strategy Establish Norms and Guidelines How the meeting is run also affects the perception of fairness. Public hearings are serious proceedings where decisions are made that affect valuable property rights and community character. Given the financial and emotional stakes involved, all participants -- officials and public alike — must treat each other with the utmost sincerity, courtesy, dignity and respect. ri�rafsl',' Disorderly meetings create confusion anrd resentment. Indeed, sometimes the public hearing evolves into an adversarial process. But the local agency role is to evaluate the project or proposed legislation, not necessarily to oppose or support it. While staff reeolnrnendaLions often depart overarching process goal should he to examine Fact-,, gather input, and resolve potential conflicts in a way that best meets the objectives of the general plan. 3 Sec C 1. Gov't Code § 52029. The term "spouse includes registered domestic paruaers recognized by stale la++. 2 Cal. Code Rep. § 18229. t{ S[i Cal. Gov't Code § 52033 (definition of "interrsl in real lImpeny' ). I& l{ ' 2 Cal. Code ]legs. § 18233. ice, for cearnplc, Ciarh v Hcnrrasa T3cad�, 49 Cal. ,app. 4th 1152 (1996) (finding common law bias where decision -maker tivas a monlh- lo -month lcluli( in a property tltal mute h,ne harl its ocean vino blocked by a prnposcd prnlerll 50 1 Institute for Local Government AN OUNCE OF PREVENTION: Best Practices for Making Informed Land Use Decisions Most meetings follow Robert's Rules of Outer. However, more specific guidelines can also help maximize the civility and productiveness of decision - making proceedings. Such policies vary among agencies, but often include the following elements: General Decorum, It is always inappropriate for anyone to ridicule, disparage, threaten or in any other way demean any other participant. Testimony and information presented should address the merits of a specific project or policy that is under consideration —not motivations, character or personalities. • Rules for Speaking. Time for applicants, staff, and opponents to speak should be clearly designated and respected. Time should also be set aside for the decision - snaking body to discuss issues and make motions without confusion. They also place the public in an awkward position of having to quickly review the changes at the hearing, leaving less time to formulate comments. Encourage applicants and members of the public to submit information early so that everyone involved will have an opportunity to review it. Decision -Maker Engagement. Members of the decision - making body should retrain engaged in the process and actively listen to testimony. They should not have conversations among themselves, leave their seats, or otherwise- take actions that telegraph disinterest in the proceedings or disrespect For participants. In one case, a court overturned a decision because decision - makers were talking on cell phones and otherwise being inattentive during an applicant's testimony.' These norms should apply to everyone involved interruption, in the meeting, including the public, applicant, • Timely Submittals. Last minute revisions in staff, and decision- makers. It is usually the key documents, like the staff report, cause ` r� s.p.onsibil ty,0(the::piesiding offic_ e_ r to en force such policies and norms. Mood Meetings (lend Reduced'Risk) wide those who information that explains such processes vs? the participants with greater perspective: ® Speaking Tips fof.Public Participants...f meeting be applied. z in charcle do not.kr the rules its easy for. participants to have less confidence in.the entire process includi.n...g the. fi Background. Information. Local governance Is :: complex Participants may not understand the context of the.decision being made. Effective education and.com:munication procgrarns.yvill help everyone better understand the review process.. For example, a group opposed to a rezone.for.an affordable housing project may not understand.: that the agency is acting to meet a state- imposed fair share housing requirement." Background — ..ode- ciskoA n Sce Lacs Street Jfo:piltrii(y So vice v Ciiy of I os AiTgries, 22 Cal, Rptr. 3d 805 (200 1) (depuhlished )_007 r)aily Journal D_�1,R_ 84) This case play not be cited .is preccdent and is piovicied here only ts an ilhr�trati<)ri CaL Gov't Cock H 655II0 ,incl fullowing de rovi best make . ............... i urage eiationship points. at they participants: For Legislative. Decisions, Consider Non- Traditional Formats. Quasi - judicial processes should be run more like a court hearing. But legislative hearings have more flexibility to consider. alternative means of public. participation. For more information, see Getting the Most Out of Public Hearings: Ideas to Improve Public Involvement h�tr3?lq sir fpulli`f�'I�ev�tlzc�s�� . Institute for Local Government 5t AN OUNCE OF PREVENTION: Best Practices for Making Informed Land Use Recisions Responding to New Information The hearing itself is a dynamic process. New and significant information may be presented that raises additional questions that staff or the applicants are not prepared to answer. Alternatively, the decision -maker may decide to deviate from the approach being recommended by staff. To the extent that it's relevant to the final decision, this new information will need to be reflected in the agency's findings. If the timeline for acting on the project permits, one way to respond to new information is to continue the hearing so that participants can either research an issue further or prepare additional documents that will ultimately support the decision and provide a solid basis for judicial review. Another option is for decision - makers to make a tentative decision only, and postpone the adoption of formal findings, conditions and conclusions to the neXL meeting. The continuance Consid.ering the Testimony of.Wcal Groups will allow the staff sufficient time to prepare formal findings that will support the decision, and, if necessary, incorporate any new evidence. Making the Decision Ideally, land use decisions should be based on objective criteria applied consistently across all projects. In practice this is difficult to achieve. On one hand, decision- making standards should be flexible enough to address the unique characteristics of each development, such as location, use, parcel size, and neighborhood character. On the other hand, decisions should also remain consistent enough to establish a degree of certainty and predictability for the community. To achieve consistency, agencies are well advised to focus on well- defined principles, set priorities when principles conflict, and offer clear 52 Institute for Local Government AN OUNCE OF PREVENTION, Best Practices for Malting Informed Land Use Decisions explanations when exceptions are made. After all the evidence is in, it's ultimately up to the decision- -maker to snake a decision. Usually, there are three options: approve the proposal, deny or reject the proposal, or modify or place conditions on the proposal. Regardless of the ultimate action taken, decision- makers should be ready to explain how they reached the decision in light of the applicable criteria, whether it be the general plan, zoning ordinance or state statute. Once made, the decision - making body issues a written decision that describes some or all of the following elements, depending on the decision and agency practice: Again, this is a point where local agency processes can vary. However, the general goal is that each applicant and the public should know whether a project or ordinance has been approved or denied and the reasons for that action. In the specific case of a denial of a specific project, the final decision should also explain the extent to which changes could bring the project within agency parameters. 1. The actual decision, including any conditions imposed on or modifications to the proposal 2. The standards applied to the decision 3. Findings of facts upon which the decision was based and the conclusions derived from those facts 4. A statement explaining the process to appeal x" .See 12 C.S.C. § 3601 and following, Cal_ Gov'[ Code § 05001_ See hvnel'olN 5ilve r 5iige Yurhiers, l M. r, C'Jiv of Desert Hilt Shrings, 251 Fad 814 (9th Cir. 2001), ' I Sec cal. Gov't Code § 6500H $ce Czt. GOVT Codc $ 655139.5. Institute for Local Government � 53 AN OUNCE OF PREVENTION_ Best Practices for Making Informed Lard Use Decisions 4 54 1 Institute for Local Government AN DUNCE OF PREVENTION'. Best Practices for Makmy Inrurrned Lalid Use Decisions CHAPTER S IN THIS CHAPTER Form and Adequacy Timing Issues findings are written explanations of why— legally and factually —local agencies made a particular decision. They map how the agency applied the evidence presented to reach its final conclusion. As a result, findings must trace a logical path or "bridge the analytic gap " -- between the evidence presented to the agency decision- makers and their ultimate decision.' rindrngs tactntate orderly analysts and assure that agency actions are grounded in reason and fact. They also offer an importam opportunity to show how the agency's decision promotes the puhlic',s interests, In addition, findings:' • Assure Process Integrity. Findings impose a certain discipline on decision- - making processes, enhancing the integrity of the process and assuring principled decision n�alcing. • Encourage Interagency Communication. Findings can explain the basis of the agency's decision. Topanga /Isswwfion for o ti(vnk (7oi)iwiTnW a County' of 1_i A iigdes. 11 Cal. M 506 {1974} - 1d. Institute for Local Government 55 Findings AN OUNCE OF PREVENTION: Rest Practices for Wkirig lMorined Land Use decisions • Assure That Standards Are Met, Some laws require that certain findings must be made before the agency can take a particular action. Help Courts Interpret the Action. Courts often look to the findings to determine the underlying rationale for an action or requirement. Findings provide support for a local agency's decisions and an opportunity to tell its side of the story. Thus, findings should be developed with at least five ,Audiences in mind: the agency governing body, the general public, interested parties, other governmental entities, and courts. In addition, it is sometimes a good idea to develop findings even when they are not required, particularly for decisions that may be controversial or lead to litigation. Form and Adequacy Findings should always cover the basic requirements of any decision, For quasi-judicial decisions, the findings must he supported by substantial evidence in tight of the entire record.' Findings are always required when local agencies are acting in their quasi- judicial capacity —like the approval of an individual permit. Although findings are not generally required for most legislative decisions, the)' are sometimes required by statute in certain circumstances, such as when an agency adopts a moratorium. I IoNvever, a findings requirement does not transform a legislative decision into a quasi-judicial act. Findings must adequately describe the reasoning for the decision. Thus, ambiguous, conclusory or should address all the relevant criteria governing the decision. I lowever, the decision - making body does not need to develop "new" finclings in each circumstance. Fot example, it's appropriate i'or a council to adopt by reference the findings of the planning commission when they make the same decision (for the same 7 - easons).° Findings should he thought of strategically, particularly if the threat of litigation looms, Ultimately, if the agency's action is challenged in court, the court will look to the findings to determine whether there is substantial evidence to support the agency's decision. As 'a result, the findings should include detailed information that connects the dots as to why the agency took the action: • Why was the regulation adopted, rejected, or amended? • Why was the application approved or rejected? • How does the Recision meet relevant statutory requirements? • How is the decision consistent with the • What is the connection between the action and the benefits of the project? • What public policy interests are advanced by the decision? 3 Brculuotre Pilliruds a 01Y of Torrruice. 81 Cal App_ 4th 1207 t2ot10)_ 4 ARS Ins(. v City of Lan oslci, 24 (:al. App. -ttlt 285 (1994). Honey Springs HomeowiimAssir_ v BocntlnfStrperrisnrc, 157 (irl, App. 3d 1122 (19134). Dorc v County n( Ue twa- 23 Cal. App. 4th 320 (1994), Crrrrnel 14illn View I1d. v Borod rf Super i- isoas, 5R Cal. App. 3d 817 (19TO). 56 1 Institute for local Governrneot AN OUNCE OF PREVENTION: Best Practices for Making Informed Land Use decisions Avoid equivocal phrases like "could. cause," "might result in," or "may increase." Public agencies must support decisions with evidence and language that is more certain. In one notable case, the U.S. Supreme Court tools issue with one city's finding that the dedication of land for a bicycle path "cotild offset" the traffic demand caused by the proposed development.' The indefinite nature of the finding did not establish that there was the necessary reasonable relationship beuveen the dedication and the impact of the proposed development. Another issue that arises is how thorough the findings should be. In many cases, such as deciding to deny a tentative map, there are multiple grounds upon which the denial may be authorized. A negative finding on any one ground is sufficient to support the denial. in almost all cases, however, the decision -maker should make findings on each issue. There are at least two advantages to doing so. First, assuming that there are additional grounds for the denial, it will provide an alternative basis for upholding the decision in the event that a court later:. invalidates .one: of the grounds for.... the decision, Second, making both negative and positive findings regarding different requirements indicates to the courts that the agency evaluated the application fairly. Timing Issues I Iow findings are drafted and adopted varies — there is no perfect way to do it. Given that one of the several roles of findings is to assure orderly decisions that draw logical connections between evidence and conclusions, the findings should be formed before the final decision is made. Of course, in the give and take of the land use process, there is not always time for the decision - maker to develop the appropriate findings from scratch after the public hearing has closed. Instead, the staff report typically includes a proposed set of findings that support staff's recommendation. These suggested findings help decision- makers identify the appropriate information, policies, and regulations governing the proposed project and guide them in making the necessary findings.' Assuming that the decision - maker reaches the same conclusions and decision as staff, the draft findings will need little or no change. But when the decision -maker elects to take a different approach, new findings will need to be drafted, In either case, it's typical for the body to make a tentative decision and explain its reasoning to staff. Staff can then draft the findings and return them to the agency at the neat meeting, where the decision can lie finalized and the findings adopted. To be safe, decision- makers should take the time at the subsequent meeting to objectively revietiv —and when necessary— revise the draft findings to make sure that they accurately reflect both the evidence in the record and their own conclusions, This process also allotds staff the opportunity to evidentiary gaps are identified during the dralting process, staff can raise them at the subsequent meeting before the final decision is made. 7 Set Doicut r. Citr ofT gnrd, 512 i .5. 374 {194 -} (emphasis added). Sic );imes I ongtin, I ml, tin's Cal ijornia Land DJ e § 11.53 {2d c _ 1987 Sa Su lip _)_ Institute for Local Government 5� AN OUNCE OF PREVENTION: Best Practices for Making Informed Land Use Decisions In some instances, however, the timelines for making the decision imposed by the Pert Streamlining Act may not allow the issue to be postponed to the nett meeting. In these cases, decision- maket must articulate their findings orally at the meeting for staff to record. The challenge in such a situation is to develop findings "on the fly" that specifically describe the reasonin for the decision or actions taken. The following five -step process, however, will help in such situations: • State the impact (either positive or negative) of the project. • Cite the source of the information (for example, a study, testimony, or other evidence), • Refer to the relevant governing statute, regulation, cr ordinance. • Link findings to general plan goals and objectives. • Describe in detail why or how the project's impact either meets or fails to meet the requirements included in the statute, regulation, or ordinance. Another approach is to include two proposed sets of findings in the staff report. For contentious issues, the report can identify the nature of the controversy and propose a set of findings for each decision that could be made. For the typical project application, there would he a set of findings if the project was approved and an alternative set of findings if the project was denied. This method, however, has at least three drawbacks. First, it creates more work for staff. Second, the unused set of findings provides a "blueprint" for anyone who wants to appeal or challenge the decision in court. Finally, it can he confusing to the public; many will find it hard to understand how the same set of facts can be used Lo support findings for opposite outcomes. n Practice `rips #or Findings: Rublic Testimonw Staff SnUUIU rldVt! Me UCSi ImUIr AYSe5b PULeiJlldl :-.: 1dC.[.5 ptUV4(JtU uy !)Ucf1 leStlfnUny IBM rile .r.eGUr.U; rlsk:by evalciating the level a #::controversy . Inc a Expert Testtmoriy Consider having C omplexity of the decision, Imtlon size of the agencyIs'experts make a: short statement at the project public Interest or other relevant factor hearing regarding their conduslons. 9. Involve Everyone. Findings usually have both 4, Don't "Parrot" the Statutory Language, Instead, a legal and factual element. Thus, all relevant l specifically explain how the language applies to the agency staff should review findings to assure: decision at hand, _.mac ua accuracya suffici in the le gal context. 3. Provide a Complete Record. For Appeals. On $. Allow Adequate Time to Prepare. Ideally, the appeal to the governing body, make sure that there is as,complete a record before the city council : will issue a tentative decision legislative body or beard of supervisors as there. was before the and allow staff time to draft specific findings in panning commission support of the body's decision, When such. time is not available, staff should anticipate the most 2. lncorporate,by Reference. Findings may be likely outcomes and be prepared for each, incorporated by reference where such findings are 7. Include Findings in the Staff Report. Including directly:on point. But, it is still a good idea to add additional.findings.that are. specific to the decision findings in the staff report makes it easier for the . or action at hand. . . legislative body to respond to and augment. the findings. 1. Never Use Humor. Findings aren't funny. 58 1 Institute for Local Government AN OUNCE Or PREVENTION: $es€ Practices for lv1akiny Inlcxtnecl Land Use Decisions 38 pa eiia101 n Instrates that a well - reasoned :set b . the "ounce of prevention that prevents a "in this case a takings liability clatrn, The D created a positive legal precedent that er public agencies and underscores the the'agency can lay out its side of th r. Town of Russ, 10 Cal_ App. 4t1i 309 (1998). Institute for Local Government 159 AN OUNCE OF PRFVENTION: Best Practices for Making Informed Land Use Decisions f F R6 b R4M SIT P LAN 4 s. I 60 1 Institute for Local Government CHAPTER 9 IN THIS CHAPTER Issues } Procedure Design AN OUNCE OF PREVENTION. Best Practices for rv1 ikii3y lnfumied Land Use Decisions ro im n agency's appellate procedures are an important risk management tool. Appeals procedures allow local agencies a second chance to look at a decision to assure that it has been made fairly. Nell- clesigned procedures allow the appellate body to correct procedural mistakes, or reverse decisions that are clearly contrary to law. They work to assure that the actions of staff and lower decision - making bodies traclk with the policy goals of the electea DGUY. t nis serves as a to avoid unnecessary litigation. TLC appeal procedure also slags disputes that are more likely to result in litigation. Appellants must exhaust all administrative remedies and procedures before filing a claim \Vith a court. This accomplishes two things: first it gives the parties as many chances as possible to reach a mutually agreeable decision, and second, it means that only true controversies will be filed with the court. Thus, the appeal process allows local agencies a second opportunity to visit these disputes to assure that the agency is indeed prepared to stand b its decision. In the alternative, the agency ma)' decide to reverse (or modify) the decisioni when the evidence suggests that such an action is necessary. Institute far Locai Government i 61 AN OUNCE OF PREVENTION: Bcst Practices for Making Informed Land Use Decisions Issues in Procedure Design Appellate procedures should allow the decision - making body to fully review the lower decision and account for any additional information or considerations that will yield a fully informed decision. To this end, appeals procedures are usually spelled out in a separate section of the agency's code. Typical provisions of a well - developed process include:` Jurisdiction. For many agencies, all appeals are taken up with the main governing body IIo-vever, other agencies delegate specific matters to specific bodies, such as the planning commission or other boards for historic preservation, design review, or rent control. Eligibility. Typically, anyone affected by a staff or lower body decision may file an appeal. Thus, it's not always the applicant appealing be given not to create the appearance that the governing body is prejudging the matter by assuming jurisdiction over the decision of a subordinate body' the decision. In some instances, more than one party may appeal the same decision for Scope. Any action, failure to take different reasons (for example, an applicant action, or determination of meaning or and an environmental group). These - actions apI .....� lity. q... . gelation orpolicy can be joined if the parties each file a tirnely can be appealed, including decisions on appeal, entitlements, determinations of completeness, • Timing and Form. Most agencies require that an appeal be filed within ten to fourteen days after the notice of decision was `nailed. The appeal should include a written statement of the findings or conclusions being appealed and the relief soughL. Many agencies require a filing fee; some agencies allow for a petition with a mininum number of signatures of residents (or residents within some distance of the subject property) in filing in person (either by an applicant or representative) to eliminate disputes about when the appeal -vas mailed or received. • Governing Body's Own Motion. Many agencies also allow the governing hotly, under its own motion to review A lower decision. In implementing such a procedure, care should I Ste, for cxomplr, Dublin, Cal , Code §§ S_132.010 and following, Pasadcnn, Cal,, Code. §§ 17.72.010 and following. Santa Barbara, Cal., Code §§ 1.30,010 and following. '- 1_:agoc of C,dilollut Cltics, �Jodcl Guidclino For ?lroiding Iluaurs(iwtional Copwlinglius of Fnwlious hi Ahw fumed Pwwxcdbip (2004); 8rcnlrzow Billiards r. Cih' of Torrance, 31 Cal. App. 4dr 1207 (2000 }; Cohan %s City of 7hoascmd Oai;s, 30 Cal. App. °ills 517 (199-}). 3 Cal- Govt Lode § 67943. 62 1 Institute for Loral Government determinations of state law compliance,-' and decisions to certify or exempt a project under CLQA. Alternatively, appeals can be limited to key decisions along the process, Lo avoid a result where every small determination may be appealed. • Effect of Filing. Usually, filing stays (delays) the action until a final decision on the appeal is made. • Withdrawal of Appeals. 'tlithdra -val of MI ap +cxr caii uc rti MUtU 11MiUAcc processes can also he drawn to include whether all appellants must withdraw a multi- appellant appeal, or in the case of an appeal supported by a petition, whether every signatory lntrsL sign the Withdrawal. Once an appeal is filed, other potential appellants often do noL file separate appeals, particularly AN OUNCE of PREVENTION: Best Practices for Making Informed Land Use Decisions if there is a filing fee. if the original appeal is withdrawn after the deadline for filing, those who did not file separately may feel like they have been denied the right to air their concerns. Clear rules governing withdrawal puts everyone on notice. Notice and Hearing. Notice should include the name of the applicant, the parcel affected, time and place of the hearing, and a description of the decision being appealed. Typically, notice is given at least l0 days prior to the hearing. Some appeals are closed to all but the applicant, the appellant (if different) and a staff representative. Usually oral presentations are involved, though some agencies allow for written arguments. Many agencies transcribe the procedure. At a minimum, it's a good practice to videotape the procedure. • Level of Deference. Many appeal procedures allow for "de novo" review, meaning that the appeals body can review the case without giving' - weight to the original' decision. However, processes can be designed to give weight to certain decision- makers who have special expertise (for example, historic preservation boards). Consideration and New Evidence. Unless the appeal is heard de novo, most procedures limit the extent to which new evidence can be produced, thereby assuring that the appeal is based upon the original application, plans, and materials submitted by the applicant. However, many agencies allow the applicant some flexibility if it will help resolve the be involved, it should be submitted well in advance of the hearing, and the appeal body may elect to refer the matter back to the original decision - maker. • Vote Requirement. A good practice is to spell out the number of votes reclttiired to reverse the underlying decision. A typical requirement is a majonty vote of either those present or the entire body. Any other vote would then constitute a denial of the appeal. if the review authority fails to act upon an appeal (for example, due to a deadlock), the decision from which the appeal was taken is generally deemed affirmed. Form of Decision. Typically, the appeals body can grant the appeal, grant the appeal with modifications or conditions, or deny the appeal. Some agencies allow the issue to be remanded back to the original decision -maker to consider particular issues. Findings. The procedure should require that findings that support the decision be adopted in writing, including specific findings for new conditions or modifications imposed. Many agencies provide that the findings of the lower decision -maker can be adopted by reference. • Effect of Appeal, Many provisions also indicate that the decision on an appeal vacates (voids). the previous decision from.which the appeal was taken. The decision becomes effective upon issuing the final decision or any other date set by procedure, Institute for Local Government 1 63 AN OUNCE OF PREVENTION: Best Practices for Making Informed Lan..] Use Decisions A well - designed appeals process allows the agency to closely examine the actions that are likely to be challenged and gain new information. This will do one of two things, if the information strengthens the claims made by the person or group filing the appeal, the appellate body can make a better decision. In the alternative, a good procedure allows the agency to get more information on the record that will support its decision once the action is challenged in court, making it more likely that the court will find in favor of the agency in the ensuing litigation. 64 Institute for Local Government ell M General Information ® 21 mile reconstruction and widening of Interstate 4 through Orlando Kirkman in Orange County to past SR 4341n Seminole County Existing 3 general use lanes and auxiliary lanes will be rebuilt and remain un- tolled. a Added capacity- --2 Express Lanes in each direction --- Dynamically tolled a FDOT sets /collects tolls a Improving safety and capacity a Reconstruct aging infrastructure a Public- Private - Partnership (P3) ® Concessionaire Finances Costs and Duration Design/Construction: - $2.1 B 6 5 -6 years estimated o Operations /Maintenance: - $380 M 40 years -- Starts when construction starts, ends 2054. Renewal and Replacement: - 490 M a < 35 years — Starts after construction completed, ends 2054. F - 11 r i- , s a j 1 r , 5511 1'cd.f':d ' r - 13 P.'Dlarr. rnla =�q d Ir I q ::tr�acd ! I — rd r -_- , s a j 1-4 Ukimate What's next... ® Technical and Financial Proposals e Best Value Selection Q Financial Close ® Notice to Proceed Design (1) Notice to Proceed Construction and Maintenance (2) 0 Construction Complete Contract Completion Benefits of a P3 (Public - Private - Partnership) ® To provide capacity improvements much sooner than possible under traditional pay -as- you go approach @ Traditional approach to accomplish this project was estimated to take at least 27 years. ® To eliminate project phasing and advance the overall project E To capitalize on the private sector's innova- tion and access to capital markets © Transfer of appropriate risk items to private partner To enhance long -term, lifecycle cost efficiency and service quality Project Website m ' 71 � I1�1i Great site to see a video, view plans, contact gas, and much morel '4 s ✓4 February 2014 April 2014 July 2014 Fall 2014 Late Fall /Winter 2014 2020 2054 4Express Lanes _49 Toil risk to remain with FDOT 0 Access to and from the tolled managed lanes will be limited 8 Slip Ramp Access 0 Direct Ramp Access O Gives you a choice Intended for longer trips © Dynamic Tolling —Toll will change based on the congestion in the Express Lanes. Goal is to maintain a speed of 50 mph in the Express Lanes. ® All Electronic Tolling ® No toil by plate 4 Everyone Pays B No Heavy TrucksA'� 'E SECTION TWO — Detailed Project Description 2. DETAILED PROJECT DESCRIPTION 2.1 Project Location The 1 -4 corridor is located in Orange and Seminole Counties, Florida. The Project extends from west of Kirkman Road to east of SR 434, for a total project length of twenty -one point eleven (21.11) miles. The 1 -4 corridor passes through or lies immediately adjacent to seven (7) governmental jurisdictions: the City of Orlando, City of Winter Park, Town of Eatonville, City of Maitland, City of Altamonte Springs, as well as unincorporated areas of Orange and Seminole Counties. Figure 1 Project Location Map j Construction Length; Approximately 21 Miles 1 i Construction Cost: Approximately f $2 Billion , . Estimated Bridges: 58 New (Including Pedestrian Crossings) 71 Replacements 10 Modifications 1 Temporary Bridge Interchanges•. 15 Major Interchanges Reconstructed , i L, 10 Florida Department of Transportation 1 -4 Ultimate Project Project Information Memorandum March 8, 2013 1-4 ULTIMATE PROJECT FREQUENTLYASKED Q. Where is the project located? A. The 1 -4 Ultimate Project is over 21 miles from West of Kirkman Road to East of SR 434. Q. What is the estimated cost of construction for the project? A. The estimated cost of construction for this project is approximately $2 billion, 4 EXPRE55 Q. What are some of the major improvements being made as part of the project? A. The project includes reconstruction of 15 interchanges, 56 new bridges which includes a new pedestrian crossing at Maitland Boulevard, 68 bridge replacements, 13 bridge modifications, sound wall treatments throughout the project corridor where Federal Noise Abatement Guidelines are met, reconstruction of the existing general use lanes on 1 -4, and the addition of 4 new express lanes in the center. Q. What are express lanes and how will they be utilized for this project? A. Express Lanes are an innovative solution to manage traffic congestion and provide choices for travelers. This project provides additional lanes with restricted access points, and variable toll pricing based on the level of congestion in the adjacent non - tolled general purpose lanes, to provide more reliable travel options for motorists Q. What is variable toll pricing? A. The variable toll pricing is based on congestion, which means the toll goes up or down depending on the traffic volume. The top will be higher. during peak periods when demand is greater and lower during non -peak periods when the demand is less. This congestion pricing helps maintain traffic flowing freely by monitoring the number of vehicles accessing the express lanes. Q. Will FD ®T need to acquire right of way for the project? A. Currently over 97% of the right -of -way has been acquired. The right of way is fully funded and should be cleared for all sections by Spring 2014. Q. When will construction begin and when will the project be complete? A, Construction is anticipated to begin in the Fall of 2014. The project is currently estimated to be designed, built and open to the public in approximately 6 years. Q. Will there be other options for comm"ters during construction? A. Phase 1 of the SunRail system is expected to be open when the construction of the 1 -4 Ultimate project begins, and will be an option for commuters. SunRail is expected to carry as many passengers as one lane of 1 -4 during peak travel times. The SunRail system will offer 30- minute peak service in each direction from 5;30 a,m. to 6:30 a.m. and from 330 p.m. to 6;30 p.m., and there are approximately eight stations located along the project corridor. Please visit www.SunRail.com for additional information about SunRail. Q. How will the construction of the project be funded? A. The Florida Department of Transportation (FDCT) is currently in the process of reviewing a Traffic and Revenue Study, One of the options that may be utilized to fund this project is through a public- private partnership. Efforts are ongoing in this area. 1-4 ULTIMATE O . F ASKED QUE 4 EXPRESS Q. What is a public- private partnership? A. A public- private partnership (P3) is a contractual agreement between a public agency, in this case the FDOT, and a private sector proposer or bidder, in this case a concessionaire. P3s transfer some of the responsibilities, risks and/or rewards of project ownership from the public sector to a private entity for a fixed period of time. Q. What is a concessionaire? A. A concessionaire is typically a private sector firm (or firms) formed by one or more investors to design, build, finance, operate and maintain a facility under a contractual agreement with a public entity. The concessionaire team will also include key subcontractors, including the project designer, builder and operator, who may or may not be investors in the concessionaire team Q. How will the community be involved in the project? A. FDOT is committed to continuing public outreach throughout the duration of the project. A website, social media, newsletters, surveys, meetings and presentations, as well as ongoing communication through media partners will be used to solicit feedback and keep the public informed of the status of the project and community outreach activities. Q. Mow can I make sure that l stay informed about the project? A. To stay informed about the project click here. Q. Who can I contact regarding this project? A. You can contact the following FDOT project personnel for additional information: Steve Olson, FDOT District 5 Public Information Manager, telephone: 386 - 943 -5479, Loreen Bobo, P.E., FDOT District 5 1 -4 Procurement Manager, telephone: 386 -943 -5000, or Beata Stys- Palasz, P.E., District 5 1 -4 Design Project Manager, telephone: 386-943-5418, You can also submit your comments and questions or receive the latest information by visiting www,moving- 4- ward.com. RUM R = .. INDUSTRY AND FACILITY ANALYSIS EXECUTIVE SUMMARY APRIL 2008 Prepared by: ' R5RC C Q N S U L I A N T 3 14 EAST WASHINGTON S REE I - SUITE 500 , ORLANDO, FLORIDA 32601 - P407-843-5635 6 800.767.5635 m F407-839-6197- WWW.RERCINC.COM SeminoleWay Industry and Facility Analysis -- Executive Summary Table nten ExecutiveSummary ............................................................................ ..............................1 Introduction and Vision for SeminoleWay ........................................... ..............................1 StudyArea Context ......................................................................... ..............................2 Conclusions and Recommendations of this Effort.. .... __ ................................................. 4 The Vision for SeminoleWay ........................................................... ..............................4 Economic Futures Analysis ............................................................. ..............................4 LandUse Analysis .......................................................................... ..............................5 HistoricalPerspectives ........................................................................ ..............................6 Past Development Trends -- Seminole County ............................... ..............................6 Economic Development Resources .................................................... ..............................7 Regional Resources ........................................................................ ..............................7 Infrastructure Resources ............................................................. ..............................7 Specific Seminole County Resources ............................................. ..............................7 Regulatory Resources...... ........ — ....................................................................... ___7 Financial Resources .................................................................... ..............................7 Education Resources .................................................................. ..............................8 FuturesAnalysis .................................................................................. ..............................8 Economic Cluster Analysis .............................................................. ..............................8 Research Framework.,... ........ ........ ........................................................... ........ ........ 9 Competitive MSA Clusters .............................................................. ..............................9 Cross- Cutting Recommendations and Observations: Clusters ......... ........ .............13 LandUse Analysis .... ......... ......... .................. ......... ......... ......... .......................... 15 Figuresand Tables ........................................................................ .............................15 Study Corridor and Methodology ................................................... .............................15 Composite Future Land Use Map .................................................. .............................15 TransportationNetwork .................................................................. .............................16 Environmental Constraints ............................................................. .............................16 DevelopmentOpportunities ............................................................ .............................17 Future Land Use Designations of Development Opportunity Areas ........................18 LandUse Conclusions ................................................................... .............................18 NextSteps .......................................................................................... .............................20 REAL ESTATE RESEARCH CONSULTANTS, INC., INNOVATION INSIGHT, GLATTING JACKSON KERCHERANGLIN SeminoleWay Industry and Facility Analysis — Executive Summary ExeGLOUVO SUrnmary Introduction and Vision for ServilinoleWay Preparing a guide for quality economic development for the future of a vital community like Seminole County needs clear vision and leadership. It requires coordination and consistency of policies, as well as supporting infrastructure and resources. To enhance the opportunities for successful implementation, it also takes relevant and accurate information regarding the economic marketplace and the possible obstacles that might constrain or redirect the most practical options and pathways. In a globally competitive world where technological changes can sweep swiftly like waves across the sea, one locale must focus intently all of its resources on the target and move quickly. At the same time, foundations must be laid to provide the infrastructure and support systems that might not be fully capitalized for a decade, or more. In this evolving and highly charged environment, reflecting the character of a well built community already near maturation, the SeminoleWay initiative was conceived by a visionary partnership of business and governmental leaders — The Seminole County Regional Chamber of Commerce. The Mission; to create a strategic land use and economic development plan focused on attracting high value /high wage jobs and businesses to the county along the State Road 417 Corridor and across 1 -4 to the Port of Sanford. For the past twenty years, Seminole County has pioneered and wrestled with the challenges of maintaining a strong comprehensive plan that encourages positive economic growth for the future beyond only dependency on ad valorem tax - supported growth. The SeminoleWay initiative will continue this forward thinking and create an positive environment and effective strategies for bringing business and government together in pursuit of a strong, stable, and relevant economic future of investment, livable incomes, and high quality employment. In the following pages, this Executive Summary explores issues addressed more fully in the Industry and Facilities Analysis report; 1. goals and visions for economic development in the SeminoleWay corridor; 2. local resources for economic development; 3. important and relevant historical economic trends in Seminole County and the central Florida region; C economics futures for the county; and 5. land use trends and policies that will be important to attracting high value /high wage jobs and businesses to the county. All five of these subject areas must be incorporated into a coordinated and effective strategy for identifying how the SeminoleWay vision may come true. REAL ESTATE RESEARCH CONSULTANTS, INC., INNOVATION INSIGHT, GLATTING JACKSON KERCHERANGLIN SeminoleWay Industry and Facility Analysis — Executive Summary Study Area Context Seminole County has identified a study corridor generally consistent with the alignment of SR 417, extending north from Orange County to Interstate 4. Along this corridor there are seven interchanges providing varying access to approximately 3,700 acres of undeveloped property distributed among owners of more than 4,000 vacant or seriously underutilized parcels. The county has indicated a preference to position this corridor to support targeted industries which might complement or expand the base of high technology, higherwage employment already established in the North 1- 411-ake Mary HIP area and proximate to UCF in Orange County. Preliminary assessment of the opportunity has suggested that only a limited number of the undeveloped acres (25% or less) are in large assemblages and only a small part of the larger parcels are adequately served by SR 417. The restricted access may be further constrained by the toll structure on SR 417 and the absence of supporting alternate roads paralleling the expressway. Practically, this analysis accepts the limitations imposed by the physical configuration of the existing road system and evaluates alternatives generally matched to the known or anticipated capacity. A later phase of this planning initiative might identify prospective economic development opportunities and suggest strategies to enhance the infrastructure perceived necessary to secure these opportunities. The preferred approach is to pursue the former option, considering the latter only if the initial assessment points to obviously unexploited target segments of exceptional high value. Figure 1 provides an illustration of the SeminoleWay study corridor. A set of figures relevant to this executive summary can be found at the end of the document. REAL ESTATE RESEARCH CONSULTANTS, INC,, INNOVATION INSIGHT, GLATTING JACKSON KERCHER ANGLIN 2 Semin®leWay Industry and Facility Analysis — Executive Summary % (� . PHI — 111 M7 04 411 H , IF of 56hford � - 4� ' � 1 1 4 � �� • r i I� I.� I� Ii il - `'�_' - i �---fi ..� III.,__._�7 f� � r r ' J _ E-. - ti r , J J z � y � G£WI Cr7UY031.3 tf FRt� � sp gds E I � 4 �CttyofCa'sselberr��Lf�� {t - r C ✓c '' f�� r i'P`7 1 SN476 ioRt1rk7h}Af f i h-IY r�LlL'1 € art T 1' L h 11 -i� -.: n f LEGEND - I T l r 1 I Incorporated Areas :t J: 1 E � selnlnole Way Study [ orr[dor 7 , h — I- i 0 as 1.0 :.ont:lrs I }'r111 'l l I f:` : iK q e , COU Ou Fo Figure 1; Seminok -Way Study Corridor Data Source: Semirtofe Count) REAL ESTATE RESEARCH CONSULTANTS, INC., INNOVATION INSIGHT, GLATTING JACKSON KERCHER ANGLIN 91 SeminoleWay Industry and Facility Analysis — Executive Summary Conclusions Recommendations this Effort A brief summary of the findings and conclusions of this first phase evaluation of the SeminoleWay economic development vision is presented here in relation to the major topic areas addressed in this report. The accompanying Industry and Facilities Analysis report and its appendices provide a more expansive presentation of the study's key findings. The Vision for SeminoleWay What Seminole County community and government leaders want are high value investments and high wage jobs in target industries sectors that will provide economic stability and growth for the next twenty years, or more. For many in local leadership roles, the vision is embodied not in the next successful office development or the next industrial park, which are easily predicted and clearly envisioned. Rather, they are wrestling with defining what will be relevant and needed in the county and the region when the next generation of leadership is in control and making decisions about what is best for its community. For many, it is necessary to understand what is emerging or only anticipated at this time. The analysis summarized in this report brings emerging economic trends and industry clusters into focus and evaluates their suitability for the SeminoleWay corridor. The "Vision" held by community stakeholders includes many specific goals and objectives. Based on the results of this analysis to date, "Success" would be defined as: 1. A vision or plan based on realistic economic opportunities for the Corridor, blending public resources, private business interests and education; 2. Attraction of businesses that add to the County's quality of life through stable investment, high -wage employment, environmentally friendly development, and support for the existing economic base; 3. Expansion of the County's non - residential ad valorem tax base and other revenue sources; 4. Provision of appropriate land use controls and comprehensive plan policies throughout the Corridor to allow desirable "high value /high wage" (and maybe "high tech ") businesses to find a place in the c;ourity; 5. Land owners understanding the vision of SeminoleWay and "buying in;" 6. Certainty that infrastructure resources, policies, and incentives are aligned at county and m unicipal levels to enhance the chances of achieving the economic development vision. Economic Futures Analysis Seminole County already possesses a significant amount of strategic economic development resources that can be readily applied to facilitate economic development within the SeminoleWay Corridor. The foundation for land use policy incentives has previously been laid with the existing HIP -Tl targeted future industries land use category. Many of the policies and practices associate with HIP -TI could function to attract REAL ESTATE RESEARCH CONSULTANTS, INC., INNOVATION INSIGHT, GLATCING JACKSON KERCHERANGLIN 4 SerinoleWay Industry and Facility Analysis — Executive Summary identified SeminoleWay economic clusters. Existing financial incentive programs, such as the Jobs Growth Initiative Fund, the Qualified Target Industry Tax Refund program, and the Florida High Tech Corridor Council matching grants, will be or should be made available to targeted industries within SeminoleWay. The SeminoleWay initiative should continue to build upon and enhance the existing partnership with the University of Central Florida's Business Incubation program. Building upon the existing economic and industrial conditions in Seminole County and the greater Orlando MSA, the RERC team has identified four specific economic clusters with the greatest potential of fulfilling the SeminoleWay Corridor vision and fostering real long term economic growth in sustainable high wage, high impact industries. They are: 1. Financial services and information services 2. Digital media including modeling and simulation, flim and broadcasting, themed entertainment and animation /game development 1 Life sciences including biotech and medical instrumentation 4. Technical and research services including civil and environmental engineering and so- called "green" architectural and engineering services These four clusters represent the most feasible and attractive future of the SeminoleWay Corridor given the context and identified constraints. Policy decisions concerning each cluster should be evaluated and tailored to exploit the resources identified within this report. Any limitations of or barriers to the successful cultivation of the SeminoleWay targeted industry clusters are likely to be spatially specific in nature. From a global perspective, the SeminoleWay Corridor is already well suited to attract and sustain each of the identified clusters without significant hindrance from transportation infrastructure, environmental constraints, suitable housing, educational resources, or land use and comprehensive planning policies. Land Use Analysis Accounting for environmental constraints and major accessibility issues, the State Road 417 Corridor between 1 -4 and the Orange County line contains about 3,300 acres of land that could be considered suitable for economic development efforts of the SeminoleWay vision. Of these ripe lands, the majority of acreage can be classified as underutilized rather than vacant. Approximately 500 acres within the two mile corridor and nearly 900 acres located within the Sanford Orlando Airport and HIP areas are functionally vacant. These constraints suggest that targeted industries and development within the corridor will necessarily be focused toward smaller individual developments and businesses that may not require a large tightly clustered campus and the associated large tracts of raw undeveloped land. To serve the most obvious target industries and businesses, large - scale land assemblage is probably not necessary. The suitable land within SeminoleWay is, however, clustered around readily accessible SR 417 interchanges. SR 497 itself provides ready and efficient access to both interstate 4, Sanford Orlando International Airport and Orlando International Airport. The future land use policies of Seminole County and the SeminoleWay partner municipalities REAL ESTATE RESEARCH CONSULTANTS, INC., INNOVATION INSIGHT, GLATTING JACKSON KERCHER ANGLIN SeminoleWay Industry and Facility Analysis — Executive Summary currently governing the available lands around the SR 417 interchanges support the SeminoleWay vision and may require only minor adjustment on a spatially specific basis to fully accommodate the specific SeminoleWay targeted industries. While it appears unlikely that a major "ship of gold" opportunity will be drawn to SeminoleWay's limited harbors, there will be many, many opportunities to draw high value cargo to the county's scattered ports and business centers via tenders, shuttles, and barges that connect the county's resources with motherships of targeted industry clusters of tomorrow. Historical Perspectives Past Development Trends - Seminole County Over the last 25 years, Seminole County has experienced, through careful planning and influenced by various market forces, several shifts in the sizing and geographic clustering of specific development, including office, industrial, and multi - family residential uses. Understanding recent trends in land use changes in addition to the existing land use picture of Seminole County more clearly highlights the path from where Seminole County has been to where Seminole County desires to go. Non population based employment generation has typically been spurred by office and industrial uses. While other commercial uses, such as retail, generally exist to serve the needs of existing population, these core uses have long existing as fountains of employment attracting corresponding workforces. In addition, noting the geographical distribution of multi - family housing can function as , an additional indicator of major geographical employment centers. The economic analysis focuses on the past development trends of the office, industrial, and multifamily residential uses and highlights the existing geographic clustering of those same uses. The most notable highlights from the trends analysis follow. 49 In support of recent population growth and corresponding increases in employment, approximately 26 percent of all Retail and Office square footage in Seminole County has been constructed and added to the tax roll in the last 7 years. Furthermore, more than 55 percent of all existing Office and Retail development has been constructed since 1990. The relatively high proportion of newer Retail and Office development indicate that the vast majority of these uses are functionally adequate to serve the needs of the existing and future targeted industries within Seminole County. This is further evidenced by the fact that less than 17 percent of existing Retail space and only 13 percent of existing office space was constructed prior to 1980. ® While opportunities for Office and Retail redevelopment certainly exist, in total, Seminole County is likely well positioned to meet the needs of existing industries in both the present and the near future. REAL ESTATE RESEARCH CONSULTANTS, INC., INNOVATION INSIGHT, GLATTING JACKSON KERCHER ANGLIN 6 SeminoleWay Industry and Facility Analysis -- Executive Summary On average, the functional age of Industrial development has exceeded that of other non residential uses. Correspondingly, approximately 17 percent of existing Industrial square footage and parcels were constructed between 2000 and 2007. This older age is not necessarily indicative of a deficit in newer and suitable Industrial space, as Industrial development typically exhibits more facile reuse properties and is not as tightly tethered to population growth. The relatively older age of Industrial development in Seminole County may however indicate a decrease in Industrial land demand as the county transitions to other industries and employment generators. The complete detailed historical and development trends analysis can be found in the SeminoleWay Industry and Facility Analysis main document. Economic Development Resources In order to craft the 5eininoleWay vision and best identify the appropriate targeted industry clusters and ascertain their feasibility and suitability for SeminoleWay, an accurate inventory of the most relevant economic development resources within Seminole County and the greater Orlando region was compiled by RERC. Before a forward thinking approach can be fostered and policy, resource, and infrastructure gaps can be remedied, it is necessary to understand the current economic development resource inventory and its adequacy to support SeminoleWay target industries. These economic development resources take the shape of existing infrastructure, regulatory and incentive policies, financial resources, and educational support. Many of the resources are offered by the economic development councils of Seminole County and her municipalities, as well as Metro Orlando EDC, higher education systems, and industry partnerships. Each tool is described more fully in the full report. Infrastructure Resources • Telecommunications • Orlando International Airport • Orlando Sanford International Airport Specific Seminole County Resources Regulatory Resources • HIP -TI Future Land Use zone • Fast Track Permitting Financial Resources • Jobs Growth Incentive Program • Qualified Target Industry Tax Refund Program Local Match • Florida High Tech Corridor Council (FHTCC) Matching Grants REAL ESTATE RESEARCH CONSULTANTS, INC., INNOVATION INSIGHT, GLATTING JACKSON KERCHERANGLIN 7 SeminoleWay Industry and Facility Analysis — Executive Summary Education Resources • University of Central Florida Technology Business Incubator Program • University of Central Florida Technology Resources • Seminole Community College and Branch Campuses • Seminole County Public Schools K -12 Futures Analysis The forward thinking SeminoleWay Vision can only be crafted with a precise understanding of the existing economic industry conditions in Seminole County and the region. A Futures Analysis will arm policy makers with a detailed picture of the current economic landscape as well as begin to identify the appropriate paths leaders must embark on to achieve the desired realistic economic and industry outcomes that are feasible for the SeminoleWay corridor. A futures analysis aims to quantify the economic potential for the SeminoleWay corridor by accomplishing the following tasks: 1, Examining future industry formations to identify, rank, and measure potential opportunities based on emerging sectors and clusters. 2. Identifying existing or future industries in the region and corridor which have the greatest local competitive advantage. 3. Benchmarking clusters to measure how competitive a region is relative to other similar regions or to the nation as a whol e. 4. Indicating relative levels of supportable activity within the general study area. Within that context, RERC worked with Innovation Insight, Inc. of Wesley Chapel, Florida to conduct a Futures Analysis for the SeminoleWay Corridor, Seminole County, and the greater Orlando Metro Area. Towards that effort, Innovation Insight completed a detailed economic cluster analysis, conducted a multitude of interviews with industry leaders and stakeholders within identified and targeted clusters, and detailed the relevant infrastructure needs of targeted SeminoleWay economic clusters. General findings from that work effort follows. Economic Clusiar Arai ® Economic cluster analysis was popularized by Ur. Michael Porter of Harvard in the 80s. It became very popular for its focus on competitiveness factors that included innovation, economies of scale, knowledge production, networks, and relationships in addition to traditional factor (cost) considerations of traditional economic geography. While cluster analysis has become the most popular paradigm utilized by professional economic developers, the process of intentional creation and incubation of regional economic clusters is still poorly understood and documented. REAL ESTATE RESEARCH CONSULTANTS, INC., INNOVATION INSIGHT, GLATTING JACKSON KERCHER ANGLIN SeminoleWay Industry and Facility Analysis — Executive Summary The effective geographic scale for cluster analysis is between national and MSA levels. County and zip code -level geographic boundaries rarely can contain a sufficiently comprehensive mix of supporting factors and industries to constitute a true cluster. For that reason, county- and sub - county -level analysis is best performed in context of the industrial makeup of the larger metropolitan area. Research Framework The objective of this research is to empirically identify the best probable focus for economic cluster development activity regarding the "SeminoleWay" region. The best research framework will be one that comprehensively looks at both quantitative (economic) 'data and qualitative (expert) feedback to rank and select cluster candidates. Given that the SeminoleWay region is too small for cluster analysis independent of the larger county and MSA, we believe that the best cluster candidates for the Seminole Way region should be selected from the intersection of: ® Competitive existing or emerging industry clusters at the MSA level, in which Seminole County has a competitive foundation. p A competitive level. of supporting industries that are.. at the intersection of multiple MSA -level industry clusters. An existing minimal basis of industries within the 4- zipcode area of the Seminole Way relevant to MSA -level industry clusters. Competitive USA Clusters In 2006, Innovation Insight conducted a comprehensive, empirical analysis of the Metro Orlando region's most competitive economic clusters for the Metro Orlando EDC. The study looked at occupational activity, federal procurement and grant award activity, patent and intellectual property activity, and industry salary, productivity, and specialization data. The study looked at recent historical trends and forecasted five years into the future. The SeminoleWay cluster analysis" takes advantage of this very comprehensive body of regional data, and through comparison with more recent data confirms that the 2006 study's findings are still relevant. The most competitive clusters overall were identified as the following: a Information services Precision instruments (closely tied to "photonics and lasers ") o Basic health services Business 1 professional services ® Computer and electronic equipment (the fastest growing cluster overall) REAL ESTATE RESEARCH CONSULTANTS, INC., INNOVATION INSIGHT, GLATTING JACKSON KERCHER ANGLIN SeminolelNay Industry and Facility Analysis — Executive Summary • Higher education & hospitals • Aerospace • Hotel and transportation services The following clusters were considered "emerging" - while not specialized in terms of significant employment, they were found growing and attractive due to other features such as salaries, productivity, and procurement activity. ® Arts and media (tied to "film and entertainment" as well as "digital media ") Construction machinery and distribution equipment ® Nondurable industry machinery ® Financial services and insurance (one of the highest paying clusters) ® Nonresidential building products Metro Orlando Industry Clusters Employment Relative to the United States Sae e! tuhties Indicate rciaf%e rimbor of john. REAL ESTATE RESEARCH CONSULTANTS, INC., INNOVATION INSIGHT, GLATTING JACKsoN KERGHERANGLIN 10 SeminoleWay Industry and Facility Analysis — Executive Summary Metro Orlando MSA versus Serrtrrtale County, Cluster Spec;al ;zatlon and Emp'Wrilent 0 012 014 0.6 0,6 1 1.2 1.4 1.6 MSA (Regbnal) Spedallzaw The previous "bubble" chart compares regional cluster specialization (horizontal axis) against Seminole County specialization (vertical axis). The size of the bubbles represents relative estimated employment in Seminole County. Essentially, the farther to the top right (green quadrant) a cluster is, the more competitive it is both in the County and the region. The MSA -level cluster data was compared with the most recent available industry data at county and iocal level. The best foundation for economic development activity in the Seminole Way area must reflect an intersection of regional, county, and local cluster industry advantages. The following chart compares the overlap of: ® The most competitive regional -level clusters (bottom left circle) ® The clusters in which Seminole County has a disproportionate share of the region's employment (top circle) 0 Clusters in which Seminole County has a significant basis of industries that are supporting industries to the region's top clusters (bottom right circle). REAL ESTATE RESEARCH CONSULTANTS, INC., INNOVATION INSIGHT, GLATTING JACKSON KERCHER ANGLIN 1 SeminoleWay Industry and Facility Analysis — Executive Summary �m[aole hi£AA�'vantag; F 7 7= tlii m•ztran ey L Too n skv F3fklnCWl }7L C9 �3 .tSl LI L. LI t iS rlr'J.F'.f IL'C Eid ;r uErel Figp'36! �YY n�j IL�p :'rVfY�1C'3 L IM A H A 3 4 k sblltra] 11 S Try I W .tir n frgl �. rrg L143 J9 w4r#r {.% 'Ar $, t+)rrtcl�tri,�E Flom Ef..l u _. CCnipewN% A!SACIus?er £emE Sauna Custer El t:tflc.; :50 t:ccroTrc GU5'£f El 'Emerj1r..p' M�vv The strongest intersection of MSA clusters with strong Seminole County economic activity as primary industries or support industries include: rq Financial_: Services. and Insurance ® Technical Research and Consulting To a lesser extent, the following clusters also show strong intersection: ® High -Tech Information Services Business Services ® Hotels & Transportation Services Architectural & Engineering Services • Higher Education & Hospitals Wiring Devices & Switches REAL ESTATE. RESEARCH CONSULTANTS, INC,, INNOVATION INSIGHT, GLATTING JACKSON KERCHER ANGLIN 12 SeminoleWay Industry and Facility Analysis — Executive Summary Cross - Getting Recommendations and Observations Clusters The objective of the empirical cluster research was to identify a few industry clusters with an existing foundation, and synergy with regional growth and strengths. The interviews and background research extended these goals to identify the feasibility of promoting core clusters as a long -term economic development strategy that complements, but does not com pete with, other regional efforts in these clusters. Four "core" clusters were identified that m et these criteria: • Financial services and information services • Digital Media including modeling and simulation, film and broadcasting, themed entertainment and animation /game development • Life sciences including biotech and medical instrumentation • Technical and research services including civil and environmental engineering and to a large extent architectural and engineering services Based upon the research, we further refine the recommended strategies for the core clusters as follows: o Green biotech: the intersection of plant -based biotech and blofuels research and production. For the life sciences cluster, focus on the availability of a wet lab facility for small businesses, providing cluster-specific ongoing training and seminar - resources, identify and "foster intermediary manufacturing solutions for enzymes, pharmaceuticals, and other biologicals to encourage local growth and retention, build shell facilities to support build -in biotech /life sciences companies, and develop a zoning and construction plan for additional greenhouses and dedicated agricultural property to support plant - based research and development, research trials, and contract and intermediary manufacturing of biologicals. Develop a cellulosic enzyme production strategy to support Florida's growing ethanol biofuels industry in partnership with UCF researchers and major blended fuels consumers such as FPL Energy, Green Buildings: a starting point for the region's technical, civil, environmental and related engineering services industry, which constitutes much of the technical and research services cluster. This is a desirable cluster in terms of wages and growth but its growth is largely driven by local development activity. Given Governor Christ's endorsement of Green Building concepts and the relative lack of LEER- certified engineers in Florida, a consortia -based approach to reducing the costs for local firms to certify their engineers can help to reduce import of LEED- certified engineering services and increase the ability of local firms to compete for projects both inside and outside of Florida. The financial services I information services cluster will benefit from continued support of the Heathrow 1 Lake Mary region. However, for purposes of the Seminole Way corridor, an increased focus on smaller companies (10 -40 employees), an extension of efforts Eastward along Lake Mary Boulevard, and a long -term plan to map, improve, and promote quality REAL ESTATE RESEARCH CONSULTANTS, INC., INNOVATION INSIGHT, GLATTING JACKSON KERCHERANGLIN 13 SeminoleWay Industry and Facility Analysis — Executive Summary broadband 1 wireless telecom, power, and transportation infrastructure in that area will help to increase the attractiveness and competitiveness of that area for financial and information services companies. The digital media cluster has tremendous potential for the region. A strong incubation and small business support strategy will most complement Orlando's developing Creative Village concept and the Florida Interactive Entertainment Academy (FIFA), particularly as there is evidence that much of the industry is characterized by freelancers and home -based service providers. The strategy for this cluster should support the recent Digital Media Banner Center awarded to Seminole Community College, and extending its services and benefits to other SCC campuses. This cluster will also benefit from services and resources to help freelancers and small businesses convert and stay abreast of the latest digital 1 high definition tools and standards. This cluster may also benefit the most from the availability of an incubator or other shared facilities supporting very high internet broadband capabilities and perhaps shared computationallrendering farms and audio /visual studios. The Orlando - Seminole International Airport is potentially a tremendous asset to the Seminole Way region. However, its potential will remain largely unfulfilled from an economic development standpoint unless its portfolio of national and international direct flights can be significantly increased. Its value for the core clusters includes: • Access to clients and markets and other business units by the financial services sector. However, most travel in this cluster is probably focused through the Orlando International Airport. • Flexible building shells for the life sciences 1 biotech cluster. • Hobby 1 executive pilot resource for all clusters. Business 1 office park property near the airport will be attractive to corporate CEOs, founders and entrepreneurs with active piloting interests. • Available undeveloped property Each of the "core" industry clusters discussed (life sciences, digital media, financial services 1 information services, and technical 1 research services) identified broadband internet connectivity as a competitiveness factor. For life_ sciences_..... and technical L__re:s.earch services, this is probably mostly a matter of preference that will be addressed by market forces (they will pay for what the level of connectivity they need). However, for financial 1 information services and especially digital media, broadband connectivity can be a "make or break" competitiveness issue in the next ten years. Financial services products and transaction processing are increasingly reliant upon internet connectivity, and trends within this industry are toward globalization of business processes (geographic distribution of business units) that require spotless and continual broadband connectivity. Perhaps most important (anecdotally) is the perception of overall consistency and quality of all telecommunications services available to this industry versus ubiquitous broadband availability. REAL ESTATE RESEARCH CONSULTANTS, INC., INNOVATION INSIGHT, GLATTING JACKSON KERCHER ANGLIN 14 SeminoleWay Industry and Facility Analysis — Executive Summary Digital media companies will have the greatest, and fastest growing needs for connectivity in order to communicate with clients, deliver large, dense media content, to stream audio and video, and even for remote processing and computing tasks. Increasing the broadband connectivity for a building can vary tremendously by location and service provider, resulting in 3 -10x increase in costs for both infrastructure (cable and fiber) as well as monthly service. In consideration of these costs and the fact that much of this cluster consists of small companies and freelancers, the best strategy may be to: Create a county "broadband map ", including which buildings already are wired to 1000baseT ethernet, the location of fiber trunks (connecting a building to a trunk across the street or further can cost an additional $60,000 or more), and which buildings already have OC -3 or greater connections. Build up a few "Islands" of broadband, including a business incubator and possibly a few other multi- tenant office buildings as supported by demand with OC -3 or greater connections. These buildings may require inexpensive cellular repeaters to further support ubiquitous connectivity. It should be noted that 802.11# wireless "hotspot" availability was not identified as a significant issue for any of the interviewed clusters. Land Use Analysis Figures and Tables The figures and tables referred to within the Land Use analysis section can be found in the full SeminoleWay Industry Analysis report. For ease of use, figures 1, 2 and 6 can be found immediately following this executive summary. Study Corridor and Methodology The Seminole Way study corridor generally runs one mile along either side of the SR 417 from the county boundary on the south to Interstate 4 on the north (See Figure 1). The section of Interstate 4 between the south side of Lake Monroe and CR 46A is also included within the study corridor. The corridor goes through the cities of Sanford, Winter Springs, and Oviedo and Seminole County. in terms of evaluating development opportunities, the analysis looked into properties that can be reached within a 1 -mile drive of interchanges along the study corridor through the existing roadway network. Additional areas of potential development opportunities were considered in the areas north of SR 46 and east of Interstate 4, and along the Lake Mary Boulevard Extension. Composite Future Land Use Map The Seminole Way Corridor includes a variety of future land use designations. Within one -mile of the corridor, the majority of land is designated for commercial and office uses, mixed -use and planned development (RD), and residential land uses. REAL ESTATE RESEARCH CONSULTANTS, INC., INNOVATION INSIGHT, GLATTING JACKSON KERCHER ANGLIN 15 SerninoloWay Industry and Facility Analysis — Executive Summary On the north and south sides of the Lake Jesup shore, SR 417 is flanked by properties that are designated recreation, conservation, or conservation overlay land uses. On the north side of Lake Jesup, and within the City of Sanford, a substantial portion of the corridor is lined on both sides by properties under the suburban estates designation. Office, commercial, PD/mixed-use, and higher intensity PD designations are generally located around interchanges between SR 417 and major arterial roadways, near the Sanford International Airport, and near the Interstate 4 interchanges. Figure 2 is a generalized future land use map comprised of future land uses from the partner jurisdictions. Transportation Nefworif Figure 3 is a map of the Seminole Way Corridor and the system of street network that connect to it. SR 417 provides regional mobility benefits to Seminole County and the rest of Central Florida as an alternative north -south corridor to Interstate 4 and US 17 -92. However, more importantly, it provides tremendous highway accessibility benefits to the county's residents, as it connects key activity centers such as the Lake Mary business parks on its northern terminus, the Sanford International Airport around its midpoint, and the University of Central Florida area on its southern end. Highway access points have traditionally been the first areas to develop and redevelop along a limited access highway. In terms of the Seminole Way Corridor, these access points are provided around ten interchanges on the SR 417 and Interstate 4. Interchanges are located at an interval of 1 to 2.5 miles, except where SR 417 crosses Lake Jesup. The network of state and county roadways that link to Seminole Way are important corridors that will facilitate and serve future growth. These roadways include: US 17 -92, Orange Boulevard, SR 46, CR 46A, Lake Mary Boulevard, Airport Boulevard, CR 427, and Lake Mary Boulevard Extension in the City of Sanford. In the Cities of Winter Springs and Oviedo, SR 434 and Red Bug Lake Road are important roadways that provide direct access to SR 417 and connect these cities to the rest of the county. Lastly, Aloma Avenue (SR 426) is the County's southern gateway for residents and visitors using SR 417. Environmental Constraints Future development and redevelopment efforts along the Seminole Way Corridor will need to consider the environmental conditions along the Corridor. Figure 4 illustrates the wetlands, designated environmental protection areas, and conservation overlays designated by the different jurisdictions' Future Land Use maps. The city of Winter Springs and Seminole County both have a conservation overlay FLU designation that calls for additional review and analysis prior to development. Both jurisdictions' comprehensive plans suggest that the conservation overlay designation is not intended to prevent development, but rather is used to identify sensitive areas that need further review to determine the extent of allowable development and the needed mitigation. If the conservation overlay area is determined developable and all mitigation requirements have been met, the underlying land use on the F LU map will apply. REAL ESTATE RESEARCH CONSULTANTS, INC., INNOVATION INSIGHT, GLATTING JACKSON KERCHERANGLIN 16 SeminoleWay Industry and Facility Analysis — Executive Summary The majority of the properties around Lake Jesup and Lake Monroe are wetland areas and has been designated as conservation overlay areas. Smaller wetland areas are scattered throughout the corridor and sporadically along the Seminole Way Corridor. Development Opportunities A detailed parcel -level analysis using GIS software was conducted to determine the extent and location of development opportunities along the study corridor. Properties that can be reached within a one -mile driving distance from interchanges using existing roadways would benefit most from the corridor's visibility and access are therefore considered key development parcels. The following criteria were used to further define the actual development opportunity among the one -mile network parcels: 1. Properties have to be one acre or larger. 2. Properties have to be either totally vacant or underutilized. Vacant properties are identified based on county - provided GIS data. underutilized parcels are those parcels that have improved values of less than 40% of total property values (land plus improvement values) based on data from the County's property tax appraiser. In addition to analyzing properties that are within - a one -mile network distance of interchanges, two additional development opportunity areas were identified. The first area includes properties that are generally within the comprehensive plan - designated Sanford 1 -4 High Intensity PD area and the County's Higher Intensity PD area. For the purposes of this analysis, this potential development area is called the "SR 46 HIP Area" and includes the properties bounded by Interstate 4 on the west side, the CSX rail line on the north side and SR 46 on the south side. This subset is further screened by the same two criteria used for the one -mile network development opportunity around interchanges (see previous paragraph) and excludes properties that are already previously identified in the first subset. The second potential development area is made up of properties that are within a mile of the Lake Mary Boulevard Extension. This area is considered a potential growth area because of its proximity to the airport and the access benefits provided by the Boulevard. As with the "SR 46 HIP Area ", the development opportunity is made up of parcels that are one acre or larger and vacant or underutilized. Figure 5 illustrates potential development opportunities, made up by vacant and underutilized properties, along the Seminole Way Corridor. Figure 6 shows the development opportunity areas grouped by interchange areas and growth areas. The development opportunity around the interchanges (not including the SR 46 HIP Area or the Lake Mary Blvd. Ext. Area) total more than 3,600 acres in land area, Of this, more than 60% are underutilized properties and less than 40% are vacant properties, in terms of land area. Close to 70% of the properties are between 1 acre and 5 acres, and around two thirds of these are underutilized properties. Among the different interchange areas, the cluster around Rinehart Road /SR 46 and around REAL ESTATE RESEARCH CONSULTANTS, INC., INNOVATION INSIGHT, GLATTM JACKSON KERCHER ANGLIN 17 SerninolaWay Industry and Facility Analysis — Executive Summary US 17 -92 offer the largest land area of development possibilities with close to 1,000 acres of vacant or underutilized properties. If the additional growth areas (SR 46 HIP Area and the Lake Mary Boulevard Extension Area) are considered, there is an opportunity to develop or redevelop up to 8,000 acres of properties corridor -wide, doubling the total development opportunity existing around interchanges. The bulk of the development opportunity is concentrated near the airport along Lake Mary Boulevard Extension. Of the total development opportunity, two-thirds are properties that are considered underutilized and a third, or around 3,500 acres, are currently vacant. Of the total 1,100 parcels that make up the total development opportunity, almost 60% are between 1 and 5 acres in size. The rest are properties that are larger than 5 acres and make up almost 80% of the total land area of potential development. The results also show that more significant development opportunities exist around interchanges and key anchor areas (the Sanford International Airport and the Lake Mary office parks) north of Lake Jesup than on the corridor's southern segment. When combined with the additional growth areas, the northern segment accounts for more than 80% of the development opportunity in the entire corridor. This first series of analysis does not take into consideration any environmental considerations and includes properties in all FLU designations. Future Land Use Designations of Development Opportunity Areas Figure 7 in the full report shows the potential development opportunity areas and their future land use designations. The map shows that a majority of the large parcels identified in development opportunity areas are under a mixed use or planned development (PD) designation. Clusters of smaller parcels are located in areas designated commercial and office use. Along the northern shore of Lake Jesup and near the airport, some parcels considered redevelopable are under the suburban estates FLU designation. Land Use Conclusions The Seminole Way Corridor has significant opportunities for development and redevelopment. An estimated 8,000 acres of properties are ripe for development and redevelopment along the Seminole Way Corridor, around the SIR 46 HIP area, and along the Lake Mary Boulevard Extension. These properties are made up of parcels which are currently vacant or underutilized and are larger than one acre in size. Along the SR 417 corridor itself, and immediately around interchanges, around 3,600 acres of properties are considered ready for development/redevelopment. REAL ESTATE RESEARCH CONSULTANTS, INC., INNOVATION INSIGHT, GLATTING JACKSON KERCHER ANGL §N 18 SeminoleWay Industry and Facility Analysis -- Executive Summary p The Development Opportunities are concentrated around trey interchanges and anchor uses north of Lake Jesup. The higher concentration of interchanges along the Corridor north of Lake Jesup allows for more parcels to be targeted as potential development opportunities. Additionally, the presence of the Sanford International Airport and the concentration of professional business parks in Lake Mary further strengthen the possibility for development activity in the SR 46 HIP Area and along Lake Mary Boulevard Extension. More modest development opportunities with smaller parcels of underutilized and vacant properties can be found south of Lake Jesup. The environmental considerations could substantially impact the potential development opportunities along the Corridor. When screened for potential environmental constraints, the total acreage of developable and redevelopable properties was reduced to 3,300 acres, less than half of the original potential development opportunity subset. Although this is a relatively conservative approach to determining development potential, the study team feels that without a detailed analysis of the nature and extent of the environmental constraints, this figure more accurately quantifies the early phase opportunities for the Seminole Way Corridor development. A next -step study can be undertaken to more clearly understand the limitations that are brought by the environmental conditions, especially those around Lake Jesup. Existing future land use policies of the County and the partner municipalities are supportive of the Seminole Way Corridor future goals. Comprehensive plan policies and future land use maps from all the partner jurisdictions generally support and allow the types, patterns, and densities of development of the industries targeted for the Seminole Way Corridor. All the jurisdictions call for some form of mixed -use development, planned development, or commercial and office uses around the corridor's interchanges. Around the airport and near the SR 46 HIP area, the County and the City of Sanford also have policies encouraging mixed -uses, light industrial uses and planned unit developments, As a next step, the County and the partner municipalities can incorporate stronger policies specific to Seminole Way and its implementation as part of their comprehensive plan updates and other policy changes. The goals of the Seminole Way Corridor should also be included in vision plans that are developed for areas along the corridor to reinforce the vision and provide guidance to the private development community. Lastly, a concerted strategic planning effort involving various jurisdictions can be conducted to more clearly understand and carry out the necessary regulatory changes to implement the goals for Seminole Way. The majority of the parcels that are considered ripe for development are underutilized properties and not vacant properties. Because of this, additional incentives may be necessary to encourage redevelopment. REAL ESTATE RESEARCH CONSULTANTS, INC., INNOVATION INSIGHT, GLATTING JACKSON KERCHER ANGLIN 19 SerninoleWay Industry and Facility Analysis — Executive Summary Jurisdictions can explore various incentive strategies to promote the properties' redevelopment to high - technology and high growth industries. These incentives may include assistance for providing infrastructure (i.e. new roadway connections), streamlined permitting processes, and interlocal agreements between partner jurisdictions to assist property owners that abut or straddle jurisdiction boundaries. • A strong partnership and coordination between jurisdictions is necessary. This feasibility study is a great start for the various jurisdictions to come together and define the future vision for Seminole Way. As the program continues and changes in the regulatory framework are made, an even stronger partnership and coordination is necessary among the different jurisdictions to ensure the Corridor's success. MMMEM RERC recommended next steps include: • Completion and further interpretation of spatially specific land use, traffic and supporting infrastructure analysis at the SR 417 interchange and parcel specific level. • identification of secondary requirements for housing, retail or other support facilities consistent with the demands of development expected within the targeted industries. ® Further description of the competitive environment for the SeminoleWay targeted industries. ® Review of existing economic development SeminoleWay marketing plans and evaluation of alternatives for long term SeminoleWay marketing initiatives. ® Evaluation of existing economic development and incentive policies and proposed modifications as they relate to the SeminoleWay targeted industries at specifically identified locations. ® Identification of key persons responsible for marketing initiatives and formulation of SeminoleWay progress benchmarks. REAL ESTATE RESEARCH CONSULTANTS, INC., INNOVATION INSIGHT, GLATTING JACKSON KERCHERANGLIN 20 Omminn|eWay Industry and Facility Ana|ys|o — ExeoutivoOummmry IJ o ary City of Winter.5prings Jv- SR 4 2 66 LAKE p MEND FE-1 fix"! Serdnole Way Siudy Corridor 'I lip nowe 1.wmiriole Way Study Corridor mw Source: mmu^ewun REAL ESTATE RESEARCH CONSULTANTS, INC., INNOVATION INSIGHT, GLATTING JACKSON KERCHER ANGLIN 21 Fu IJ o ary City of Winter.5prings Jv- SR 4 2 66 LAKE p MEND FE-1 fix"! Serdnole Way Siudy Corridor 'I lip nowe 1.wmiriole Way Study Corridor mw Source: mmu^ewun REAL ESTATE RESEARCH CONSULTANTS, INC., INNOVATION INSIGHT, GLATTING JACKSON KERCHER ANGLIN 21 Sernin®leWay Industry and Facility Analysis -- Executive Summary f i 3.1 SA d6 7 J_— MR ~ i s d OS 1 Zonffa _. C�tyofGakeMnry ;; � 1 7 th�Ei :i ir1J L �" _. r E r , A . rte 7 � j - P I A , ,d °a al I i_ EM Higher tnteniityPD /Mixed Use i s d OS 1 Zonffa � 1 7 th�Ei ir1J Figure 2; Composite Future Land Use Aiap Data Source: Seminole County, Cities of Sanforc VAnter Springs and Oviedo REAL ESTATE RESEARCH CONSULTANTS, INC., INNOVATiON INSIGHT, GIATTING J ACKSON KERCHER ANGLIN 22 SemincleWay Industry and Facility Analysis -- Executive Summary ` t ' e ri t 792 : — I ii , ...... .. ........ O Q h � q Y : -- SR,434 I Intarthange ri ; r f V \» t''7, 1 > Figur26: D4velcpment Opportunity Prop erdesbyInterchange and Gro vthAreas Data Source:SemlaaleCount) REAL ESTATE RESEARCH CONSULTANTS, INC., INNOVATION INSIGHT, GtATTING .JACKSON KERCHER ANGLIN 23 Froject Stal loll Summary Locted at 2720 W SR46 near the intersection of State Road 46 and Airport Boulevard, the Sanford Sumial station presents unique development partnership opportunities for surrounding land owners, local residents and community leaders. The station is a short distance from historic downtown Sanford, with its charming mix ofantique stores, restaurants, lakefront recreational activities ,county services and Central Florida Regional Hos aital as well as tothe Seminole Towne Center Mall g p 1 and surrounding residential develo meat. The LLocation Y n Map J i - P 1 Ct `' i x i t ' 7 y P r , !` , Ly Il +d i , '- "" I1 i i f % �/ Ili liy j III III) / - ia ' ; ! I a . s .: �/ - i t l n p II if F fla L I Bl l 1 I I I I I llll ,j „ : ,] r t ' —1 . - Status — December The station is 95% with expected completion of January by the end 2014, SunRa11 is scheduled to begin operational services in May 2014. h " 2013 I Tawny Olore, P.E. Sun Rail Program Manager P: 407- 732 -6705 Q 407 474 4708 Email Tawny Olora @dot state fl.u Marianne Gurnee SunRall MagsoluProgram Management Team Nons- Consultant to FDOT District 5 P: 407-492-0836 Email: Marianne.GUr r4dojstate fl.us Jim Martin /Mike Wacht station will also provide direct connections to development the ` - "' new residential an east side ofthe tracks. The Sanford SunRall station , �_ — _ - I II'� Public Information Manager /Specialist S-Rail City Center includes park and ride lot with bus drop-off l I l i + i ' 201 N. Magnolia Avenue Suite 101 area. I f i III j; I Orlando, FL 32801 / f 7 IIII C: 407- 487 -4035 J C: 407- 312 -3481 Total Site Area: 6.45 acres 1 ` P: 407461 -8926 / P: 407- 487 -4035 Parlang: 232 total spaces 8 handicap - 1_Lr - -` ) Email J nn @sunreil.com spaces 5 electric vehicle stations (future) Email NIke _SunRaII.com _ _ •° — - - - °- ° ° ° °— -' "°""' - °° °- City of Sanford convib to date Amy D. Scales, P.E. Upgrade full length platrorm canopies DS Interstate Resident Engineer Additional canopy lighting SmRail Construction Alternate henches on platforms P: 386 - 943 -5729 Enhanced "Art In Transit" P.407- 482 -7832 Mosaic seat walls C:407- 948-0907 Recycled glass plaza paving St. Augustine sod Brett W. 31ackadar, P.E. Future EV stations Seminole County Engineer Department of Public Works Utilities — Potable avatar (drinking fountains) and reclaimed water(irrigation) Engineering Division 100 E 1` Street Sodrool, 132771 P: 407 -665 -5651 Email IBI c¢_.. p.rCt ralnolecopnt }`l gav December 2013 Page 1 r po,i.rt Summary i I— '; —h— __. er.. «�.� r........,.. _.. _.._ UnRail tivit y F To support seamless bicycle and pedestrian connectivity to sunRail Phase 1 stations, FDOT Is facilitating coordination to identify remaining infrastructure needs that can be 'fr + ) --.,�J , U '�° `°` llJ f I Field Evaluationvaas conducted on 'October 15, 2013 with City, County and RyanJ.Cunningham,P.E. Senior Engineer Kittelson &Associates, Inc Transportat Engineering/Planning advanced quickly, to be completed prior to the SuuRall 2014, {I �1 �. �1 �I) g FDOT staff. 225 East Robinson Street, Suite 450 start of operations in Some of these needs are already t, iZ(1 1 Orlando, Florida 32801 einpinrr V g u r 407.540.0555 (main) identified and planned for as part ofthe x.�.n ! s Ft : 407.373.11C9 (direct) FDOT's SunRa II station development work, and others are being Identified and j j"'" r .� Brett Boncore implemented by local agency partners. AS part ofthe FDOTSm - Rail Connectivity project, the team conductedawalking field evaluation for the Sanford SunRail station area with representatives of the City of A ;. , +, x s ,,,,5, t + as { "' -.�. Transportation Analyst Kittelson &Associates, Inc. Transportation E Planning 407.373.1112 (direct) 407.467.0979(celf Sanford and Seminole County. In addition to �r �Z discussing the immediate walking area ng ?' " (quarter to half -mile, others from the�'� Amtra Auto Train PD &E team joined to rT ;4y t t V t n" 4 - discuss potential options for bike I connectivity between SUn Rail and the AUto I 4. I4i� _ Q Train /Historic Goldsboro area.' a "'�- -�' m Status The project started in late November 2012 and is expected to finish by spring 2014. Contacts _ Mary McGehee FDOT Project Manager 719 A Woodland Boulevard DeLand Florida 32720 Project summary Location Map Project Location Map - v '`" _ I ,_ wzpest r Sanford Amtral<Auto . Train Gateway This PD &E study is evaluating potential i mprovements to the transportation network surrounding Amtrak's Auto Train facilities, with the goal of enhancin local access and g g Improvements network connectivity between the Amtrak Auto Train operations in Sanford „ � wn, 5t ( w47hsc� P: 386-943-5063 and other + t Email: mary n cgcliee(@oot state - .Fl.us j nearby e ct ®evela mob I y impr enPS to frooethe Y uhsr i �� ' a Greg R4oare p nlet1t and Environment T1ain terminal and addressesthe existing challenges related to accessibility for g V Pedestrians and other modes of Aal'f I s tyre' t, � � �I - "'`f "� - � L_,J I watt, DRMP Consulant Project Manager Lake Baldwin Lane PD &F Study ( '' transportation. P -�'^ `. - "_ >+' m= } 1 W9u 36f _ — p V 701h e s Orlando 11-11111 P: 407 -896 0594 The project are2 is hordered by Marlin Luther King, Jr. Boulevard on the west; First Street on the north, Pecan Avenue on the B J - _ >9 .� , x'` -w , C v r} I wtamsd �' "4YS?:fckgttfCoajl Email: gino oredrm�„_cgrn. ia Eileen LaSUer east; and McCracken Road on the south (see wumsc. Public Involvement Coordinator project location map). Depending on the f H rcrk Gd IA wighvaik iS'at3;t8t t`QId 3277Y m Quest Corporation of America improvement alternatives to be evaluated �,. "'" ° ,'�, "„= r , _�.. P:407-883-8257 during the study, these limits may be slightly Email: HR-P ucausa.r -- ru adjusted as needed to reflect the actual limits of various improvement options.. -. December 2013 Page 2 Project Su mmary Location Map Status RMPK submitted the applicatlon on 3/29/13. On 6/12/13 Com"I" Marc A. Hultin CPRP, CPSI Manager— City of Sanford Parks and Grounds Operations Division _ T erwilliger Lane Consistent with the City of Sanford's Comprehensive Plan and Strategic Plan, staff is exploring hike /pedestrian connections - -- Multi -use betvesen SunRall, the. RiverWalk and I` Street r — staff received a letter 1 1:407- 688.5000x5421 Path (SR -46) such as Riverview Avenue and < � d Q f , from RTP request ng F: 407 - 688.5083 Persimmon Averue. Another opportunity is the { >` additional information C: 407- 416.4479 Email MarcHultir CcasanfordfLZOV unopened right-of-way of Terwilliger Lane for the grant located between Riverview Avenue and ` a pp hcation. Persimmon Avenue which could facilitate a S Christopher Srni[h 2,600' north -south multi- purpose trail ?; Staff received the Project Planner —City of Sanford connecting 1" Streetto Seminole Boulevard. h right -of -way 300 N. Park Avenue, Sanford 3 J r l information and P:407- 688 -5144 forwarded on 7 /24/13. F: 407- 688 -5141 _ C: 407 - 416 -5770 Email: clinsrnithffDsanfordfi.ROv } G mmute �T'ra 'y R �ell PI n „Pesm ` of ll December 2013 Page 3 Project Summary 11 Locatimr Map Status Contacts HUD The Study Area is outlined in red on the _ Seminole County issued a RFP for a TO D Waster Dick Boyer, Senior Planner Sustainable location map and may be amended during u Plan in June 2013 for the Sanford Station Area. Bill Wharton, Principal Planner Communities the study. The overall goal of this project is _ nL - �, - I, Four firms responded with IBI being selected by Seminole County the creation of comprehensive plan policies @ k i op 'K the County in October 2013. The County is Development Services Planning and regulatory changes applicable to and 3 °., cu rrently process! ng contracts with lB l wh ich is Planning& Development Division Grant - individualized for the Study Area around the anticipated to be completed In December 2013, 1101 East First St. Sanford SunRall station located within the City of w rc ' (� ,� a sus _ .= p County staff continues to communicate and Sanford FL 32771 Sanford I - r`1 w coordinate with City staff regarding the project. P: 407-665-7382 Station T What is TODV ^ m k f ° L a x nj z Hjj A kick -off meeting with the IN will likely be held F: 407-665-7385 Study TOD (transit oriented development ) seeks ° 9 sr rca LJ z in Janua ry 2014. Emall: dboyer(Tseml_ole nmgyFl.gov to align transit in with 5 sf ° srH } c asp en = i e e community's vision for how it want to grow. _ -- } ° r n Russ Gibson, AICP, Typically, TOD Is characterized by the incorporation mix of land uses, more x Pp _ _ ", 3 eewg�r" q � q �- �- Planning Director -City ofSanford Planning and Development Services g veI o intensity of develpment, walkable streets i n S WeRAcKry G m cowmaroaca p and is often described as a "transit village." _ m �2 s r - - -- 300 N. Park Avenue, Sanford Successful TOD reinforces both the nr CAp., P: 407 -688 -5142 community and the transit system. > kp. g0 +w r Email: =ibsonr aJS anfordfl.e ov M1 RUM U 1 InB. Mrr Nea � 1 1f1 kw Da k - - rA CLUB !EN Contacts Project Summary LocaflonMap Status December 2013 Page 4 Northeast MetroPlan Orlando is coordinating Regional Corridor Study to evaluate land uses and Corridor transportation demand in an area along the Alome Spur from downtown Sanford Project through Seminole County into the City of Advisory Winter Springs, the City of Oviedo and Committee extending into Orange County to the UCF Campus. This project is a joint planning study by MetroPlan Orlando and local jurisdictions and agencies within the corridor. Project Sun Rail _Summ New rail transit systems historically have Stations offered communities a host of new growth management opportunities - from creating TOD pedestriarrfriendly ,transit - oriented housing near station stops to redeveloping struggling commercial and retail areas. SunRail Is no different. From Deland to Poinciana, local �'. communities and local elected officials have a tremendous opportunity to redefine their growth destinies by offering residents a new transportation alternative to the automobile. In 2011, the Florida Department of Transportation facilitated an update of the 2007 TOD Sketchbook, which provided a community vision of redevelopment around SrmRail station. / nE. -1 Location Man The next PAC meeting is scheduled for Tuesday Gabriella Serrano December 17, 2013, Transportation Planner MetroPlan Orlando One Landmark Center 315 East Robinson Street, Suite 355 Orlando, Florida 32801 P: 407 - 481 -5672 Ext. 312 F: 407-4815681 Email sgei rao�am etroolanorlando com Statu .or:�;lus Ps Mecs for each station area updated Ipproxirnately annually. Mr. Tim Jackson AECOM, FDOTTransit- Oriented Development Facilitator 133 S Semoran Boulevard Orlando, FL 32807 -3203 P: 407- 843 -6552 Email timothy.jackson @aecom.co.m Flake Drury AECOM, SunRail TOD Facilitator 150 N. Orange Avenue, Suite 200 Orlando, Florida 32901 P: 407- 843 -6552 C: 407 -339 -1789 Email: [ilgke.drilrySa? T: \PROJECTS \Commuter Rail \SunRall Projects Report.docx December 2013 Page 5