HomeMy WebLinkAbout12 SHOPPNG CART REGS/OPPOSE SB 375 03-18-08_-_; ,- Agenda Item 12
'~ AGENDA REPORT Reviewed:
~-~,~~ City Manager
. Finance Director NIA
MEETING DATE: MARCH 18, 2008
TO: WILLIAM A. HUSTON, CITY MANAGER
FROM: CITY CLERK'S OFFICE
SUBJECT: LEGISLATIVE REPORTS
SUMMARY:
Staff has prepared two (2) agenda reports that discuss the following legislative items:
1. City of Westminster's policy on shopping carts; and
2. Opposition to SB375, requires regional transportation planning agencies to include
sustainable communities strategy in their regional transportation plans and offer
incentives to implement strategy.
RECOMMENDATION:
Pleasure of the City Council.
Maria R. Huizar
Chief Deputy City Clerk
AGENDA REPORT
MEETING DATE: MARCH 18, 2008
TO: WILLIAM A. HUSTON, CITY MANAGER
FROM: COMMUNITY DEVELOPMENT DEPARTMENT
SUBJECT: CITY OF WESTMINSTER REGULATIONS ON SHOPPING CARTS
SUMMARY:
The City of Westminster recently adopted new shopping cart regulations which require
retail businesses in that city to implement and maintain a mandatory containment
system to physically prevent the removal of shopping carts from their premises. City
Councilmember Bone has requested that information on the matter be provided to the
City Council.
RECOMMENDATION:
Pleasure of the Council.
FISCAL IMPACT:
There is no impact at this time. However, implementation of additional shopping cart
regulations could present an unknown cost to Tustin retailers.
BACKGROUND:
Many Tustin retailers offer their customers the convenience of shopping carts to move
retail goods from the store to a parked vehicle (see Attachment A for a partial list).
However, some customers walk from the retail establishment and abandon the
shopping cart after use. Abandoned shopping carts cause blight, impede streets, public
and private walkways, and may pose a potential hazard to the health and safety of the
community.
Approximately fifteen to thirty times each month, City Code Enforcement staff must deal
with abandoned shopping carts throughout the City that customers have removed from
retail parking lots. Code Enforcement currently enforces state law (Attachment B) and
City shopping cart regulations, adopted by the City Council on July 21, 1997 (T.C.C.
Section 5900, Attachment C) which requires the following procedure to be followed:
• City staff can immediately remove unidentified shopping carts in public property.
City Council Report
Regulation of Shopping Carts
March 18, 2008
Page 2
• City staff can immediately impound identifiable shopping carts (carts that identify
a retail store) from public or private property if the cart will impede emergency
services.
• City staff can impound identifiable shopping carts from private property following
one of two procedures:
1. Remove the carts three days after the owner of the cart has been provided
written notice to pick up the cart(s) and has failed to do so; or,
2. Remove the carts immediately and send written notice to the owner of the
cart within twenty-four (24) hours of impound as to where the cart(s) may
be claimed. If claimed within three days of the notice, the cart(s) must be
released and surrendered to the owner at no charge and it shall not be
deemed an "occurrence" in accordance with Business and Professions
Code 22435.7.
Business and Professions Code 22435.7(f) gives the City the authority to
fine business owners an amount not to exceed fifty (50) dollars for each
"occurrence" in excess of three during a specified six-month period for
failure to retrieve shopping carts when issued a notice by the City. An
occurrence includes all shopping carts impounded in a one-day period.
All unclaimed shopping cart impounds must be held for a minimum of thirty (30)
days at a location that is reasonably convenient to the owner and must be open
for business at least six (6) hours of each business day. If the cart is not claimed
within thirty days of the notice, the cart may be sold or otherwise disposed of by
the City.
CITY OF WESTMINSTER ORDINANCE:
On January 16, 2008, the City of Westminster adopted ordinance 2426, which requires
all retail establishments with ten or more shopping carts to prevent the removal of
shopping carts from the business premises (Attachment D). Each business must
submit a written plan to the City as a condition to obtaining a business license within the
City of Westminster. Once the shopping cart plan is approved, future uncorrected
violations could result in revocation of the retail business' right to use shopping carts for
a minimum of 180 days, whereupon the retailer must re-submit a new shopping cart
plan to be reviewed and approved by the City.
The plan must address the following:
1) Physical Barriers -One or more of the following physical measures must
be implemented:
City Council Report
Regulation of Shopping Carts
March 18, 2008
Page 3
a) Disabling devices on all carts, which are activated when they cross a
barrier at the perimeter of the premises.
b) Physical barriers located at doors, around loading areas, or other
defined perimeters that will prevent the passage of carts beyond the
barriers. The barriers may also be placed on the carts themselves so
that the carts cannot pass through door openings or other defined
perimeters.
2) Signs Affixed to Carts -Every shopping cart made available for use by
customers shall have a sign permanently affixed that identifies the owner
of the cart or the retailer or both; notifies the public of the procedure to be
utilized for authorized removal of the cart from the premises; notifies the
public that the unauthorized removal of the cart from the premises of the
business, or the unauthorized possession of the cart, is a violation of state
law, and lists a valid telephone number or address for returning the cart
removed from the premises to the owner or retailer.
3) Notice to Customers -Written notice shall be provided to customers, in
English, Spanish, and Vietnamese that removal of shopping carts from the
premises is prohibited by state law. Such notice may be provided in the
form of flyers distributed on the premises, warnings printed on shopping
bags, direct mail, website notices, or any other means demonstrated to be
effective. In addition, conspicuous signs shall be placed and maintained
on the premises near all customer entrances and exits and throughout the
premises, including the parking area, warning customers that removal of
shopping carts from the premises is prohibited by state law.
4) Daily Cart Confinement -All shopping carts located on the premises of
the retail establishment (other than an establishment open for business
twenty-four hours per day) shall be collected at the end of each business
day by employees of the retail establishment and shall be collectively
confined in a secure manner at the cart confinement area on the premises
as designated in the cart containment plan until the commencement of the
next business day. All shopping carts located on the premises of any
retail establishment open for business twenty-four hours per day, other
than carts then currently in use by a customer or patron, shall be collected
by employees of the retail establishment and returned to the cart
confinement area on the premises as designated in the cart confinement
plan at least once per calendar day between the hours of nine p.m. and
twelve midnight on each day the retail establishment is open for business.
The provisions of this subsection does not apply to any shopping carts
located within an enclosed building.
City Council Report
Regulation of Shopping Carts
March 18, 2008
Page 4
5) Employee Training -The owner of the retail establishment shall implement
and maintain a periodic training program for its new and existing employees
designed to educate such employees concerning the requirements of this chapter
and the provisions of state law prohibiting the unauthorized removal of shopping
carts from the premises of the retail establishment.
Exemption -Collaboration with Other Businesses -Two or more retail
establishments located within the same shopping or retail center or sharing a
common parking area may collaborate and submit a single cart containment plan.
CONCLUSION:
The City of Westminster is one of several cities to adopt an ordinance which requires
businesses to submit a cart containment plan for approval to ensure that reasonable
measures are taken by retail establishments to prevent the removal of shopping carts
from the premises. Cities such as Buena Park, Costa Mesa, Pasadena, and Long
Beach have adopted similar ordinances. The cost for Tustin retailers to implement and
adhere to the requirements of a Tustin cart containment plan is unknown at this time.
Brad Steen
Code Enforcement Officer
Dana Ogdon
Assistant Director
Elizabeth A. Binsack
Director of Community Development
Attachments:
A: List of Tustin businesses which provide carts for use by customers
B: Business and Professions Code 22435 - 22435.8
C: Tustin City Code 5900
D: City of Westminster Ordinance No. 2426
Attachment A
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Attachment B
WAIS Document Retrieval
CALIFORNIA CODES
BUSINESS AND PROFESSIONS CODE
SECTION 22435-22435.8
22435. As used in this article:
(a) "Shopping cart" means a basket which is mounted on wheels or a
similar device generally used in a retail establishment by a
customer for the purpose of transporting goods of any kind.
(b) "Laundry cart" means a basket which is mounted on wheels and
used in a coin-operated laundry or drycleaning retail establishment
by a customer or an attendant for the purpose of transporting fabrics
and the supplies necessary to process them.
(c) "Parking area" means a parking lot or other property provided
by a retailer for use by a customer for parking an automobile or
other vehicle.
22435.1. The provisions of Section 22435.2 shall apply when a
shopping cart or a laundry cart has a sign permanently affixed to it
that identifies the owner of the cart or the retailer, or both;
notifies the public of the procedure to be utilized for authorized
removal of the cart from the premises; notifies the public that the
unauthorized removal of the cart from the premises or parking area of
the retail establishment, or the unauthorized possession of the
cart, is a violation of state law; and lists a valid telephone number
or address for returning the cart removed from the premises or
parking area to the owner or retailer.
22435.2. It is unlawful to do any of the following acts, if a
shopping cart or laundry cart has a permanently affixed sign as
provided in Section 22435.1:
(a) To remove a shopping cart or laundry cart from the premises or
parking area of a.retail establishment with the intent to
temporarily or permanently deprive the owner or retailer of
possession of the cart.
(b) To be in possession of any shopping cart or laundry cart that
has been removed from the premises or the parking area of a retail
establishment, with the intent to temporarily or permanently deprive
the owner or retailer of possession of the cart.
(c) To be in possession of any shopping cart or laundry cart with
serial numbers removed, obliterated, or altered, with the intent to
temporarily or permanently deprive the owner or retailer of
possession of the cart.
(d) To leave or abandon a shopping cart or laundry cart at a
location other than the premises or parking area of the retail
establishment with the intent to temporarily or permanently deprive
the owner or retailer of possession of the cart.
(e) To alter, convert, or tamper with a shopping cart or laundry
cart, or to remove any part or portion thereof or to remove,
obliterate or alter serial numbers on a cart, with the intent to
temporarily or permanently deprive the owner or retailer of
possession of the cart.
(f) To be in possession of any shopping cart or laundry cart while
that cart is not located on the premises or parking lot of a retail
establishment, with the intent to temporarily or permanently deprive
the owner or retailer of possession of the cart.
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22435.3. Any person who violates any of the provisions of this
article is guilty of a misdemeanor.
The provisions of this section are not intended to preclude the
application of any other laws relating to prosecution for theft.
22435.4. This article shall not apply to the owner of a shopping
cart or laundry cart or to a retailer, or to their agents or
employees, or to a customer of a retail establishment who has written
consent from the owner of a shopping cart or laundry cart or a
retailer to be in possession of the shopping cart or laundry cart or
to remove the shopping cart or laundry cart from the premises or the
parking area of the retail establishment, or to do any of the acts
specified in Section 22435.2.
22435.5. (a) In any civil proceeding, any shopping cart or laundry
cart which has a sign affixed to it pursuant to Section 22435.1 shall
establish a rebuttable presumption affecting the burden of producing
evidence that the property is that of the person or business named
in the sign and not abandoned by the person or business named in the
sign.
(b) In any criminal proceeding, it may be inferred that any
shopping cart or laundry cart which has a sign affixed to it pursuant
to Section 22435.1 is the property of the person or business named
in the sign and has not been abandoned by the person or business
named in the sign.
22435.7. (a) The Legislature hereby finds that the retrieval by
local government agencies of shopping carts specified in this section
is in need of uniform statewide regulation and constitutes a matter
of statewide concern that shall be governed solely by this section.
(b) A shopping cart that has a sign affixed to it in accordance
with Section 22435.1 may be impounded by a city, county, or city and
county, provided both of the following conditions have been
satisfied:
(1) The shopping cart is located outside the premises or parking
area of a retail establishment. The parking area of a retail
establishment located in a multistore complex or shopping center
shall include the entire parking area used by the complex or center.
(2) Except as provided in subdivision (i), the shopping cart is
not retrieved within three business days from the date the owner of
the shopping cart, or his or her agent, receives actual notice from
the city, county, or city and county of the shopping cart's discovery
and location.
(c) In instances where the location of a shopping cart will impede
emergency services, a city, county, or city and county is authorized
to immediately retrieve the shopping cart from public or private
property.
(d) Any city, county, or city and county that impounds a shopping
cart under the authority provided in subdivisions (b) and (c) is
authorized to recover its actual costs for providing this service.
(e) Any shopping cart that is impounded by a city, county, or city
and county pursuant to subdivisions (b) and (c) shall be held at a
location that is both:
(1) Reasonably convenient to the owner of the shopping cart.
(2) Open for business at least six hours of each business day.
(f) A city, county, or city and county may fine the owner of a
shopping cart in an amount not to exceed fifty dollars ($50) for each
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occurrence in excess of three during a specified six-month period
for failure to retrieve shopping carts in accordance with this
section. An occurrence includes all shopping carts impounded in
accordance with this section in a one-day period.
(g) Any shopping cart not reclaimed from the city, county, or city
and county within 30 days of receipt of a notice of violation by the
owner of the shopping cart may be sold or otherwise disposed of by
the entity in possession of the shopping cart.
(h) This section shall not invalidate any contract entered into
prior to June 30, 1996, between a city, county, or city and county
and a person or business entity for the purpose of retrieving or
impounding shopping carts.
(i) Notwithstanding paragraph (2) of subdivision (b), a city,
county, or city and county may impound a shopping cart that otherwise
meets the criteria set forth in paragraph (1) of subdivision (b)
without complying with•the three-day advance notice requirement
provided that:
(1) The owner of the shopping cart, or his or her agent, is
provided actual notice within 24 hours following the impound and that
notice informs the owner, or his or her agent, as to the location
where the shopping cart may be claimed.
(2) Any shopping cart so impounded shall be held at a location in
compliance with subdivision (e).
(3) Any shopping cart reclaimed by the owner or his or her agent,
within three business days following the date of actual notice as
provided pursuant to paragraph (1), shall be released and surrendered
to the owner or agent at no charge whatsoever, including the waiver
of any impound and storage fees or fines that would otherwise be
applicable pursuant to subdivision (d) or (f). Any cart reclaimed
within the three-business-day period shall not be deemed an
occurrence for purposes of subdivision (f).
(4) Any shopping cart not reclaimed by the owner or his or her
agent, within three business days following the date of actual notice
as provided pursuant to paragraph (1), shall be subject to any
applicable fee or fine imposed pursuant to subdivision (d) or (f)
commencing on the fourth business day following the date of the
notice.
(5) Any shopping cart not reclaimed by the owner or his or her
agent, within 30 days of receipt following the date of actual notice
as provided pursuant to paragraph (1), may be sold or disposed of in
accordance with subdivision (g).
22435.8. This article shall not invalidate an ordinance of, or be
construed to prohibit the adoption of an ordinance by, a city,
county, or city and county, which ordinance regulates or prohibits
the removal of shopping carts or laundry carts from the premises or
parking area of a retail establishment except to the extent any
provision of such an ordinance expressly conflicts with any provision
of this article.
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Attachment C
CHAPTER 9 ABATEMENT OF SHOPPING CART NUISANCE Page I of 3
CHAPTER 9 ABATEMENT OF SHOPPING CART NUISANCE
5900
5900 DECLARATION OF PUBLIC NUISANCE AND PURPOSE
Abandoned shopping carts located outside the premises or parking areas of retail
establishments and on public or private properties and viewable from the public right-of-way are
injurious to the public health, safety, and welfare and constitute a public nuisance (hereinafter
"shopping cart nuisance"). The nuisance is caused by persons unlawfully removing shopping
carts from the premises or parking areas of retail establishments and by certain retail
establishments failing to maintain adequate supervision of their premises and parking areas,
failing to educate their customers, and failing to implement effective cart removal prevention
programs or cart retrieval programs. The purpose of this chapter is:
(a) To establish reasonable regulations for the collection and impound of
unidentified shopping carts located on public property; and
(b) To supplement provisions of state law regarding the unauthorized removal
of shopping carts from the premises and parking areas of retail establishments.
(Ord. No. 1184, Sec. 2, 7-21-97)
5901 DEFINITIONS
[As used in this chapter, the following words and terms shall have the meaning ascribed
thereto:]
"Authorized contractor" means a private service provider selected by the City Council, as
described in Section 5902.
"City" means the City of Tustin or its designated representatives, as described in Section
5902.
"Person" means an individual or entity as defined in Tustin City Code Section 1112.
"Public property" means all real property in the City in which a public agency has a fee
simple, easement, or leasehold interest. This includes but is not limited to, streets, sidewalks,
the civic center, parks and flood control facilities.
"Owner identified shopping cart" means a shopping cart that has a permanently affixed
sign that identifies, in accordance with Business and Professions Code 22435.1, the owner of
the cart or the retailer, or both; notifies the public of the procedure to be utilized for authorized
removal of the cart from the owner's premises; notifies the public that the unauthorized removal
of the cart from the cart owner's premises or cart owner's parking area or the unauthorized
possession of the cart, is a violation of state law; and lists a valid telephone number or address
for returning the cart to the owner or retailer.
"Retail establishment" means any trade establishment selling articles, commodity or any
line of merchandise.
"Shopping cart" means a basket that is mounted on wheels or a similar device generally
used in retail establishment by a customer for the purpose of transporting goods of any kind.
"Unidentified shopping cart" means a shopping cart that is not an owner identified cart,
or an owner identified shopping cart of a retail establishment located outside the City. (Ord. No.
1184, Sec. 2, 7-21-97)
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CHAPTER 9 ABATEMENT OF SHOPPING CART NUISANCE Page 2 of 3
5902 SHOPPING CART NUISANCE ABATEMENT AUTHORITY
Sections 5903 through 5908 of this chapter may be implemented and enforced by
designated representatives of the Community Development Department, Public Works
Department, or Police Department as designated by their respective department heads in
writing, or by private service providers authorized by the City Council. Such designated
representatives or authorized private service provider may enter onto any public property to tag,
remove, and store any unidentified shopping cart or part thereof. (Ord. No. 1184, Sec. 2, 7-21-
97)
5903 REMOVAL OF UNIDENTIFIED CARTS FROM PUBLIC PROPERTY
(a) Upon the discovery of an unidentified shopping cart on public property, the City or
its authorized contractor may remove the cart. Such carts shall be tagged with date and
location and shall be stored for thirty (30) calendar days at a location selected by City. A
claim for a cart shall be presented to the Director of Community Development or
designee, and shall be accompanied by proof of ownership of the cart. A person
demonstrating proof of ownership of a cart stored by City shall pay City's nuisance
abatement fee prior to the cart being released by City.
(b) This section shall not apply to a cart attended by a person who can demonstrate
proof, satisfactory, to the City or its authorized contractor of ownership of the shopping
cart or written permission of the owner to have the cart in their possession. (Ord. No.
1184, Sec. 2, 7-21-97)
5904 DISPOSAL
After the period specified in Section 5903, the City, or its authorized contractor, may sell
an unclaimed unidentified shopping cart at public auction or otherwise dispose of the cart. (Ord.
No. 1184, Sec. 2, 7-21-97)
5905 NUISANCE ABATEMENT FEE
An administrative fee to cover the City's costs for the tagging, removal, and storage of
unidentified shopping carts and associated administrative activities performed by the City shall
be established by resolution of the City Council. Such fee shall not exceed the City's reasonable
estimate of actual costs for such services. From time to time, the Director of Community
Development or designee shall review the fee as appropriate and recommend any necessary
adjustments to the City Council. (Ord. No. 1184, Sec. 2, 7-21-97)
5906 PROHIBITED ACTIVITIES
(a) No person shall remove any tag affixed by the City or its authorized contractor to
an unidentified shopping cart with the intent of interfering with the enforcement of the
provisions of Section 5903.
(b) No person shall obstruct, impede or interfere with any representative of the City or
its authorized contractor who is engaged in tagging, removing, or transporting an
unidentified shopping cart in accordance with Section 5903. (Ord. No. 1184, Sec. 2, 7-
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CHAPTER 9 ABATEMENT OF SHOPPING CART NUISANCE Page 3 of 3
21-97)
5907 APPEALS OF CART IMPOUND
A person who can demonstrate that he or she is a cart owner may appeal the imposition
of the nuisance abatement fee by presenting evidence that the cart removal and storage was
not performed substantially in accordance with the provisions of Section 5903. Appeals shall be
made in writing to the Director of Community Development or designee within ten (10) calendar
days of paying the fee. An office hearing will be held within thirty (30) calendar days of the
receipt of such appeal request. The cart owner or authorized representative may appear and be
heard on the matter. If the Director of Community Development or designee determines that the
shopping cart was not removed and stored in substantial accordance with the provisions of
Section 5903, the nuisance abatement fee shall be refunded. The decision of the Community
Development Director or designee shall be final. (Ord. No. 1184, Sec. 2, 7-21-97)
5908 UNAUTHORIZED REMOVAL OR POSSESSION OF SHOPPING CARTS
It is unlawful to do any of the following acts:
(a) Remove a shopping cart from the premises or parking area of a retail
establishment.
(b) Be in possession of a shopping cart that has been removed from the
premises or the parking area of a retail establishment.
(c) Leave or abandon a shopping cart on public or private property and at a
location other than the premises or parking area of the retail establishment.
This section shall not apply to a person who can demonstrate proof, satisfactory, to the
arresting officer, of ownership of the shopping cart or written permission of the owner to have
the cart in their possession. (Ord. No. 1184, Sec. 2, 7-21-97)
5909 PENALTIES/REMEDIES NOT EXCLUSIVE
Any person who violates Section 5906 or 5908 may be charged with an infraction or
misdemeanor, as provided in Section 1121. Such a remedy is not exclusive, and the City may
pursue other remedies available to it under State law or local ordinance. (Ord. No. 1184, Sec. 2,
7-21-97)
CHAPTER 1 MINORS
CHAPTER INDEX
6100 APPLICABILITY
6101 HARMFUL CONDITIONS PROHIBITED
6102 CURFEW--PERSONS UNDER EIGHTEEN YEARS OF AGE
6103 INDECENT PUBLICATIONS
6104 PROHIBITION OF LOITERING_SO AS TO OBSTRUCT PASSAGE
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Attachment D
FEB-25-2008 MON 03 51 PM City of Westminster CDD FAX N0, 714 8999660 P, 04
ORDINANCE N0.2428
AN ORDINANCE OF THE MAYOR AND CITY COUNCiI.OF
THE CITY OF WESTMINSTER AAAENDIING CHAPTER
8.78 TO TITLE 8 OF THE WESTMINSTER MUNICIPAL
CODE RELATING TO SHOPPING CART CONTAINMENT
WHEREAS, California Business & Professions Code Section 22435.7(e) provides that
shopping cart retr9eval has been declared by the Legislature to be a matter of statewide
concern.
WHEREAS, Section 22435.8 further provides that "[t]his article shall not invalidate an
ordinance of, or be construed to prohibit the adoption of an ordinance by, a city, aunty,
or city and oounty,~ which ordinance regulates or prohibits the removal of shopping carts
or laundry carts from the premises or parking area of a retail establishment vier pt ~
the extent any
provision of such an ordinance expressly conflicts with any pro
this article."
WHEREAS, as a result of Section 22435.8, cities may choose to adopt ordinances which
require businesses to maintain a mandatory containment system whereby one or more
physical measures will be taken by the businesses to prevent the removal of carts from
their premises.
WHEREAS, the Mayor and City Council of the City of Westminster finds that the
accumulation of wrecked, dismantled and abandoned shopping carts, or parts thereof,
on public or private property, create conditions that impede emergency services, reduce
property values, promote blight and deterioration, comprise an attractive nuisance,
create potential hazards to the health and safety of the community, and interfere with
pedestrian and vehicular traffic within the city.
WHEREAS, the Mayor and City Council further finds that wrecked, dismantled and
abandoned carts are injurious to the health, safety and general welfare of the public,
and era aesthetically detrimental to the community and are therefore a public nuisance.
WHEREAS, the Mayor and City Council finds that the prior City ordinance relating to
containment and retrieval of shopping carts has been ineffective in removing this public
nuisance from the City streets.
WHEREAS, the provisions set forth below will relieve the City from the detrimental
effect of this public nuisance and are not in conflict with Catifomia Business and
Professions Code 22435 et seq.
NOW THEREFORE, THE MAYOR AND CITY COUNCIL OF THE CITY OF
WESTMINSTER DOES HEREBY ORDAIN AS FOLLOWS:
2426-1
FEB-25-2008 MON 03 52 PM City of Westminster CDD FAX N0. 714 8999660
P. 05
SECTION 1. That Title 8, Chapter 8.78 will be amended' to read as follows:
Chapter 8.78 MgNpATORY SHOPPING CART CONTAINMENT PROGRAM AND
RETRIEVAL BY OWNERS
Sections:
8.78.010 Purpose- Declaration of Public Nuisance
8.78.020 Definitions
8.78.030 Enforcement
8,78,040. Mandatory Physical Measures to Prevent the Removal of Carts
8.78.050 Additional Cart Control Measures
8.78.060 Plan Submission and Approval
8.78.070 Appeals
8.78.080 Unlawful Acts
8,78.010 Purpose-Declaration of public nuisance.
Many retail establishments provide shopping carts for the convenience of
customers while shopping on the premises sinesses and left b2r d~e~e°~sf~'bi~n~
carts removed from the premises of such businesses and left abandoned on public or
private property throughout the city constitute a public nuisance and a potential hazard
to the health and safety of the public. The proliferation of lost, stolen or abandoned
shopping carts on public and private property causes blighting ocnditions in the
streets, parking lots and other ways, interferes with pedestrian and vehicular traffic on
public and private streets, and impedes emergency services. For the aforesaid reasons,
such lost, stolen or abandoned shopping carts are declared to be a public nuisance
which shalt be subject to abatement in the manner set forth in this chapter or in any
other manner provided by law. The purpose of this chapter is to set forth regulations to
ensure that measures are taken by the owners and operators of businesses which
provide ten ar more shopping carts for the convenience of customers to prevent the
removal of shopping carts from business premises and parking lots, and to provide for
the prompt retrieval of lost, stolen or abandoned shopping carts, to complement and
supplement provisions of state Iaw, and to adopt local regulations to the extent not
otherwise preempted by state statute. (Ord. 2 § 1 (part), 2006
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8.78.020 Definitions.
Eccept as otherwise expressly set forth herein, the following words and terms as
used in this chapter shall have the following meanings:
A. "Abandoned shopping cart," see `Lost. stolen or abandoned shopping cart."
B. "Cart" or "shopping cart' means a basket that is mounted on wheels or a
similar device generally used in a retail establishment by a customer for the purpose of
transporting goods of any kind. The term "shopping cart" or "cart" includes a laundry
cart.
C. "City" means the city of Westminster, Caiifomia or its designated
representative.
D. "Code enforcement manager" means the cads enforcement manager of the
city.
E. "Enforcement personnel" means any police officer or code enforcement officer
employed by the city of Westminster.
F. "Laundry cart" means a basket which is mounted on wheels and used in a
coin-operated laundry or dry-cleaning retail establishment by a cu~omer or an
attendant for the purpose of transporting fabrics and the supplies necessary to process
them.
G. "Lost, stolen or abandoned shopping cart" means a shopping cart which is
either (1) removed from the premises of a retail establishment by any person without the
written permission or consent of the owner of the shopping cart or the retailer otherwise
entitled to possession of such cart, or (2) left unattended, discarded or abandoned upon
any public or private property other than the premises of the retail estabiishment from
which the shopping cart was removed, regardiess of whether such shopping cart was
removed from the premises with the permission of the owner. For purposes of this
chapter, any shopping cart located on any public or private property other than the
premises of the rotail establishment from which such shopping cart was removed shall
be presumed Lost, stolen or abandoned, even if in the possession of any pennon, unless
such person in possession thereof either (a) is the owner, or an employee or authorized
agent of the owner, entitled to possession of the shopping cart, (b) is an officer,
employee or agent of a cart retrieval service hired by the owner to retrieve such carts,
(c) is an enforcement officer retrieving, staring or disposing of said cart pursuant to the
provisions of Chapter 8.74 of this code, or (d) has written permission or consent to be in
possession of the shopping cart from the owner entitled to possession of the shopping
cart.
2426-3
FEB-25-2008 MON 03 52 PM City of Westminster CDD FAX N0. 714 8999660
H. "Owner" means any owner, manager, or operator of any retail establishment.
I. "Parking area" means a parking lot or other property provided by a retail
establishment far the use of customers for parking of customer vehicles. The parking
area of a retail establishment locateb ithe multistore complex or shopping ce to r shall
include the entire parking area used y
property or other area upon which any retail
J. "Premises" means any building,
establishment business is conducted or operated in the city, including the parking area
provided for customers.
K. "Retail establishment" means any business located in the city, regardless of
whether the business is advertised or operated as a retail or wholesale business, and
regardless of whether the business is open to the general public, or is a private dub or
business, or is a membership store,
8.78.030 Enforcement.
Tire code enforcement manager shall oversee the implementation, administration
and enforcement of this chapter.
8.78.040 Mandatory Physical Measures to Prevent the Removal of Carts.
A. Owners of every retail establishment that utilizes ten (10) or more carts
shall implement one or more of the following physical measures to prevent the removal
of carts from their premises no later than June 1, 2008:
1. Disabling devices on all carts, which are activated when they cross a
bamer at the perimeter of the premises; or
2. Physical. barriers located at doors, around Loading areas or other defined
perimeters, that will prevent the passage of carts beyond the barriers. The barriers may
also be placed on the carts themselves so that the carts cannot pass through door
openings or other defined perimeters.
B. Within sixty (60) days of the effective date of this chapter, ovmers of every
retail establishment that utilizes ten (10) or more carts shall present to the code
enforcement manager a written plan setting forth the physical measures it plans to
implement to comply with the requirements of this chapter.
8.78.050 Additional Cart Control Measures.
In addition to installing physical measures to prevent the removal of carts from
the premises, every retail establishment that provides ten (i Q) or more shopping carts tp
customers for use on the premises shall also comply with the following requirements:
2426-4
FEB-25-2008 MON 03 53 PM City of Westminster CDD FAX N0. 714 8999660 P, 08
A. Signs Affixed to Carts. Every shopping cart made available for use by
customers shall have a slgn permanently affixed to it that identifies the owner of the cart
or the retailer or both; notifies the public of the procedure to be util'~zed for authorized
remove{ of the cart from the premises; notifies the public that the unauthorized removal
of the cart from the premises of the business, or the unauthorized possession of the
cart, is a violation of state law, and lists a valid telephone number or address for
returning the cart removed from the premises to the owner or retailer.
B. Notice to Customers. Written notice shall be provided to wstomers, in
English, Spanish, and Vietnamese that removal of shopping carts from the premises is
prohibited by state law. Such notice may be provided in the form of flyers distributed on
the premises, warnings printed on shopping bags, direct mail, website nopces or any
other means demonstrated to be effective. In addition, conspicuous signs shall be
placed and maintained on the premises near alt customer entrances and exits and
throughout the promises, including the parking area, warning customers that removal of
shopping carts from the premises is prohibited by state law.
C. gaily Cart Confinement. All shopping carts located on the premises of the
retail establishment (other than an establishment open for business twenty-four hours
per day) shall be collected at the end of each business day by employees of the retail
establishment and shall be collectively confined in a secure manner at the cart
confinement area on the premises as designated in the cart containment plan until the
commencement of the next business day. Ali shopping carts located on the promises of
any retail establishment open for business twenty-four hours per day, other than carts
then currently in use by a customer or patron, shaA be collected by employees of the
retail establishment and returned to the cart confinement area on the premises as
designated in the cart containment plan at least once per calendar day between the
hours of nine p.m. and twelve midnight on each day the retail establishment is open for
business. The provisions of this subsection shall not apply to any shopping carts located
within an enclosed building.
D. Employee Training. The owner of the retail establishment shall implement
and maintain a periodic training program for its new and existing employees des~ned to
educate such employees concerning the requirements of this chapter and the provisions
of state law prohibiting the unauthorized removal of shopping carts from the premises of
the retail establishment.
E. Collaboration with Other Businesses. Two ar more retail establishments
located within the same shopping or retail center or sharing a common parking area
may collaborate and submit a single cart containment plan.
8.78.060 Plan submission and approval.
A. New Retail Establishments. Each new retail establishment, and any
existing retail establishment relocating to a different location within the city that utilizes
ten or more carts shall present to the code enforcement manager a written plan setting
2426-5
FEB-25-2008 MON 03 53 PM City of Westminster CDD FAX N0, 714 8999660 P, 09
forth the physical measures it plans to implement to comply with the requirements of
this chapter as a condition to obtaining a business license in the city.
B. Existing Retail Establishmentse, Each existing retail establishment shall
submit a proposed Plan complying with the requirements of Section 878.i040(B) of this
chapter do the ode enforcement manager within the timeline set forth therein.
C. Plan Review and Approval. Upon the filing of any proposed plan pursuant
to Section 8.78.040 of this chapter, the code enforcement manager shag review the
proposed plan and either approve or deny approval of the proposed plan within thirty
(30) calendar days following the receipt thereof by the code enforcement manager. I
the proposed plan complies with each of the applicable requirements of th' ~ e~ rshatl
code enforcement manager shall approve the plan, otherwise the proposed plan
be denied. The decision of the code enforcement manager shall be made in writing and
notice thereof shalt be transmitted to the ow 8 re aid, or by personal delivery or fax
States Postal Service. first-class mail, postag P P
transmission. The notice of decision of th er od sle d~t~ryea~ onn ~®r date ~ the fax
given to the owner on the date of p
transmission to the owner; notices given b en ~ the ~$® on the third d Y btlowing the
mail, postage prepaid, shalt be deemed gi
date of deposit in the U.S. Mail. If the proposed plan is denied~t~h1e lnottW s de aid A
given to the owner shelnfstactee~ n tmanager may be appealed by the owner in the time
decision of the code
and manner provided in Section 8.78.060.
p. Amendments by Owner. The owner of any retail establ mays at any Ume,
an approved plan conforming to the requirements of this chapter
submit a proposed amendment to the approved plan wh osemd plan as set fotrthbn
processed in accordance with the procedure provided for a prop
subsection C of this section.
E Revocation qr Amendment by City.
~, Grounds. An approved plan may be revoked by the city upon gny of the
following grounds:
a,. The owner of any retail establishment is operating, or is permitting
operation ot, the retail establishment in violate violation(s) fa~a pe od groat leastofiffteen
approved plan and has failed to correct sard
(15) calendar days following the date of receipt of written notice of such violation(s) from
the city; ar
b. The owner of any retail establishment wrrh an approved plan is opereting,
or is permitting the operation of the retail estaol correcttthe voaa~on(s) for ar period of at
requirements of this chapter and has failed
2426-B
FEB-25-2008 MON 03 54 PM City of Westminster CDD FAX N0. 714 8999660
least fifteen (15) calendar days following the date of receipt of written notice of such
violation(s) from the city; or
cart containment plan, as approved, is inadequate to
c. The mandatory In carts from the premises of the retail
reasonably prevent the removal of shopp 9
establishment.
2. Order to Show Cause. If at any time evidence that anyro the grounds set
code enforcement manager obtains informabo
forth in subsection (E)(1) of this section may exi e a ero~ved plan shou{d not be revoked
issue a written order to show cause as to why th PP
and schedule a hearing thereon which hearin n s this date succh orris to show caluse is
days nor more than thirty calendar days foilowr g
given to the owner of the retail establishr~nt. nhand ssha~l inicludet titre n orm~On ~d
which it is proposed to revoke the appwhich ~ ch oMer was issued.
evidence, or a summary thereof, upon
3, Notice of Hearing. Noti be ivenhin the time and manner provided in
issued pursuant to this section shalt g
subsection C of this section.
4. Conduct of Hearing. The heart ~ The ~~ and the city sha Ileach have
formal rules of evidence shaft not be apnlicabl
the opportunity to present relevant evidence and witnessss• The parties may each be
represented by legs! counsel or other represents n~es~ me ~videnc~, that g s~$) e~r
the burden of proof to establish, by a prepondera
to revoke the plan. The code enforcement a dment of theoptanrif thee groundsfor the
alternative to revocation, may consider am
order to show cause are solely the inadequacy of the approved plan.
5, Decision of Code Enforcement Manager. Within flfteer- (15) calendar days
following conclusion of the hearing, the cue e~~~gs a rov~oki~g cal amenc~ingi the
her decision in writing either dismissing th® P
Ian. If the plan is revoked or amended, th ~ amendedhthe deasionshalidals'o Q f~ciFY
end the reasons fa~ t~Cehpa pion. If the plan r
the amendment(s)
g, Notice of pecision. Notice o ~ SQed f~iorns bs~`°~o~ of this section!
manager. shall be given in the time and ~nann p
7. Appeal of Decision. The decisioneotfr~ ac ~ m~n~n~®~ ~n Section
be subject to appeal by the owner wrthm th
8.78.070. In the absence of a timely appeal, the decision of the code enforcement
manager shall be fins! and conclusive.
P, 10
2428.7
FEB-25-2008 MON 03 54 PM City of Westminster CDD FAX N0. 714 8999660 P. 11
8. Use of Shopping Carts Fothe reguRrements of thish hiapte shat provide or
retail establishment which is subject t4 q
make available shopping carts for the use ofsu nt ~ thisfacih pter beecodmes Gnat unl Tess
revolting a plan required and approved p
and until a new proposed plan is approved by the city for such retail establishment.
Notwithstanding any other provision of t ro BePdte ~an ~ ~ercity tot' P'roces9~in4 fo~na
shalt not be eligible to submd a ne da following the date any decision revoking the
minimum of 180 (one hundred eighty) Y sari Ian submitted to
prior plan for such retail establishment becomes final. Any propo P da eriod
the city for such retail establis f the retail~estabiishment as untime y.~eighty) y P
shall be returned to the owner o
8.78.070 Appeals.
A. Filing of Appeal. Any owner aggrieved by am aai such derision to the
code enforcement manager pursuant to this chapter may apps
city manager of the city within fifteen (15) ~eeenforcement lms~n gar a written noticge of
notice of such decision by filing with the cod
appeal briefly stating the grounds for such appeal. 'The notice of decision shah be
deemed given on the date as provided i{he ectleai $7mi~Y ~ ~~®a °nht he~offlCe ~
appeal shall be deemed fled on the date pp
the code enforcement manager accom canlNQba en ap~hgilt b~as~p~ ~ aft ~ and
as set by resolution of the city coup RPe Hied by the appeal
processing fee as est~ableished bby the city council r unless accompa
processing
g, Notice of Meaning. If the appeal is timely filed, the Dale enforcement
manager shall notify the city manager wh et f allhearing awht h hearing datseshatl be
hearing officer shall cause the matter to be
within thirty (30) calendar days following bran ten Q} glendar~ as s written notice oif
The appellant shall be provided not less
the date, time and place of the hearing.
C. Conduct of Hearing. The hearing shall be conducted informally and the
formal. rules of evidence shall not beeYpdpgn~bland witnesses. The partfes may each pe
the opportunity to present relevan
represented by legal counsel or oe( ~~ cpr~ns'tdered fo lowinig the condus ndofothe
evidence or argument shalt be rec ulatwn of the parties.
hearing except as may be agreed by stip
p, Decision by Hearing Offic;er. The heir nog s ~1 r~e~ll~ann w~h~n thirty (30)
the appeal and adopt findings of fact in suppo
calendar days following the conclusion of the hearing.
E. Notice of Decisioe. ohn i delive oforeon the date of the fax transmiss'an to
deemed given on the date of p r ry
1
~- ~
L~'
1
2426-8
FEB-25-2008 MON 03 54 PM City of Westminster CDD FAX N0, 714 8999660
P, 12
the appellant; notices given by the United States Postal Service, first-class mad,
postage prepaid, shall be deemed given to the appellant on the third day following the
date of deposit in the U.S. Mail.
F. Decision is Final, The decision of the hearing officer shall be final. The
decision must include notice that any legal challenge to the final decision shall bs made
pursuant to provisions of Cade of Civil Procedure Sections 1094.5 and 1094.6 and shall
be commenced within ninety (90) days fallowing issuance of the final decision.
8.78.080 Unlawful apts -- Penalty for Violation -- Declaration of Public Nuisance ~-
Penalties Not Exclusive.
A. Except as otherwise expressly provided in this chapter, it shall be unlawful
for the owner of any retail establishment that provides ten (10) or more shopping carts
to provide or offer. or permit to be provided or offered, any shopping carts to customers
pf the retail establishment without an approved mandatory cart containment as required
by this chapter.
S. It shall bs unlawful for the owner of any retail establishment to provide or
offer, or permit to bs provided or offered, to customers of the retail establishment any
shopping cart which does'rn Section 224351eof the Rua Hess ndeProfessionlsiC~odel off
the information specked
the State of California.
C. Penalty for Violafion. Violations of either subsection A or B or this section
committed by any person or entity shall be punishable as provided for~etSect~e
1.12.010 of this Cods. The complaint charging such oblation shall spsay
violation is a misdemeanor or an infraction. Each day a violation of any provision of this
chapter shall be a new and separate violation.
p. Declaration of Public Nuisance. It is declared a public nuisance for any
person owning, leasing, occupying or having charge or possession of ~y retail
establishment in the sty to main#ain upon such premises, or to perrn~, cause, or allow
t4 exist vn such premises a violation of any provision of this Chapter. Any violation may
be abated by the city through civil proceedings by means of a restraining order,
preliminary or permanent injunction, or in any other manner provided by law for the
abatement of such nuisances. Any person who violates any of the provisions of this
chapter shall be responsible for the citys attorney fees and legs! costs associated with
the abatement.
E. Penalties Not Exclusive. The penalties set forth herein are cumulative and
in addition to all other remedies, violations and penaRies set forth in this chapter, or in
any other orciinances, laws, rules or regulations of the City of Westminster, County of
Orange and the State of California.
2426-9
FEB-25-2008 MON 03:55 Phl City of Westminster CDD FAX N0, 714 8999660 P. 13
SECTION 2. Severability.
Tha Mayor and City Counci! of the City of Westminster hereby declares that should any
section, subssotion, paragraph, sentence, clause or word of this ordinance hereby
adopted be declared for any rreitaest ~ ~~ ~M ~rtgn~ C~ty i~unc I that it wou d have
competent jurisdiction, ~t is the i
adopted ali other portions of this o ~innva dmdapendent of the elimination hereinfrom of
any such portion as may be declare
SECTION 3.
The City Clerk shall certify to the ~~ssagme mannerprequired by awn This ordinances
cause the same to be published m th
shat) become effective thirty (30) days from and alter its passage.
PASSED, APPROVED AND ADOPTED this 16~' day of January. 2008 by the following
vote:
AYES; GOUNCILMEMBERS: RICE, QUACH, FRY, MARSH, TA
NOES: COUNCILMEMBERS: NONE
ABSENT: COUNCILMEMBERS: NONE
,
MARGIE l E, MAYOR
ATTEST:
MARIAN C RAS, ITY CLERK
STATE OF CALIORNIA )
COUNTY OF ORANGE ) ss.
CITY OF WESTMINSTER )
I, MARIAN CONTRERAS, hereby certify that I am the duly appointed City Clerk of the
City of Westminster and that the foregoing ordinance was introduced at a regular
meeting thereof on the 12~the Ciof Council of the City of Westminster held onn thetl6"'
adjourned regular me®ting of tY
day of January, 2008.
Marian eras, i Clerk
2426-10
Agenda Item 12
k • Reviewed.'
.-, ~ AGENDA REPORT City Manager
Finance Director N/A
MEETING DATE: MARCH 18, 2008
TO: WILLIAM A. HUSTON, CITY MANAGER
FROM: COMMUNITY DEVELOPMENT DEPARTMENT
SUBJECT: LEGISLATIVE REPORT - SB 375
SUMMARY:
Senate Bill 375 (Steinberg) would require regional transportation planning agencies to
include a sustainable communities strategy in their regional transportation plans and
would offer incentives to implement the strategy. SB 375 also would streamline the
environmental review process for projects when the local jurisdiction's general plan
conforms to the sustainable communities strategy or when a project can be declared a
"Sustainable Communities' Project." However, these requirements and incentives
impose additional restrictions on local land use planning and effectively mandate that
local jurisdictions comply with the sustainable communities strategy by tying funding
sources to compliance with the strategy.
A copy of the bill is included as Attachment A to this report.
RECOMMENDATION:
That the City Council take a position to oppose SB 375 and direct staff to transmit the
attached letter of opposition to Senator Steinberg.
FISCAL IMPACT:
If SB 375 were adopted, local jurisdictions that are not in compliance with the adopted
sustainable communities strategy would not be eligible for federal and state funding for
regional transportation projects. This fiscal impact would be significant.
DISCUSSION:
SB 375 would require regional transportation planning agencies to include a sustainable
communities strategy in their regional transportation plans and would offer incentives to
implement the strategy.
Although SB 375 would not supersede local land use authority, it would require federal
and state funded projects to be consistent with the applicable regional transportation
plan beginning in 2009. Because of local government dependence on outside funding
sources, this consistency requirement would effectively mandate local jurisdictions to
comply with the sustainable communities strategy.
City Council Report
SB 375
March 18, 2008
Page 2
SB 375 also would streamline the environmental review process for projects when the
local jurisdiction's general plan conforms to the sustainable communities strategy or
when a project can be declared a "Sustainable Communities' Project." The
effectiveness of these proposed changes to the California Environmental Quality Act
(CEQA) are questionable because many projects may not satisfy the prerequisites
needed to take advantage of the streamlined provisions.
The Southern California Association of Governments (SCAG) has adopted a voluntary
regional growth scenario called Compass Blueprint that includes a program called the
2% Strategy. This voluntary program encourages local governments to plan for
sustainable growth and improve mobility and livability by offering free planning services
through selected demonstration projects within the region.
The City of Tustin is concerned about mandatory regional planning efforts because they
potentially interfere with local community planning and may conflict with existing State
mandates. A letter stating these concerns pertaining to SB 375 was transmitted to
Senator Steinberg in October of 2007. Staff recommends that a second letter be sent at
this time because it is anticipated that there will be another hearing on SB 375 within the
next two to three weeks.
~~'~
Scott Reekstin
Senior Planner
~r
Elizabeth A. Binsack
Community Development Director
Attachments A: SB 375
B: Draft Letter of Opposition
S:\Cdd\CCREPORi\SB 375.doc
ATTACHMENT A
SB 375
AMENDED 1N ASSEMBLY JANUARY 28, 2008
AMENDED IN ASSEMBLY SEPTEMBER 12, 2007
AMENDED IN ASSEMBLY JULY 17, 2007
AMENDED IN ASSEMBLY JUNE 27, 2007
AMENDED IN SENATE JUNE 4, 2007
AMENDED IN SENATE MAY 2, 2007
AMENDED IN SENATE APRIL 17, 2007
SENATE BILL
Introduced by Senator Steinberg
February 21, 2007
No. 375
An act to amend Sections 14527, 65080, and 65584.01 of, and to add
Sections 14522.1, 14522.2, and 65080.01 to, the Government Code,
and to amend Sections 21061.3 and 21094 of, and to add Chapter 4.2
(commencing with Section 21155) to Division 13 of, the Public
Resources Code, relating to environmental quality.
LEGISLATIVE COUNSEL'S DIGEST
SB 375, as amended, Steinberg. Transportation planning: travel
demand models: sustainable communities strategy: environmental
review.
(1) Existing law requires certain transportation planning activities
by the Department of Transportation and by designated regional
transportation planning agencies, including development of a regional
transportation plan. Existing law authorizes the California Transportation
Commission, in cooperation with the regional agencies, to prescribe
study areas for analysis and evaluation.
92
SB 375 - 2 -
This bill would require the commission, by July 1,~AA$ 2009, to
adopt guidelines for travel demand models used in the development of
regional transportation plans by certain transportation planning entities.
The bill would require the Department of Transportation to assist the
commission, on request, in this regard, and would impose other related
requirements.
This bill would also require the regional transportation plan for
specified regions to include a sustainable communities strategy, as
specified, designed to achieve certain goals for the reduction of
greenhouse gas emissions from automobiles and light trucks in a region.
The bill would require the State Air Resources Board, working in
consultation with the affected transportation agencies, to provide each
affected region with greenhouse gas emission reduction targets from
the automobile and light truck sector for 2020 and 2035 by January 1,
26A9 2010, and to update the regional targets, as specified, unti12050.
The bill would require certain transportation planning and programming
activities by affected regional agencies to be consistent with the
sustainable communities strategy contained in the regional transportation
plan, but would state that certain transportation projects programmed
for funding on or before December 31, 2011, are not required to be
consistent with the sustainable communities strategy. To the extent the
sustainable communities strategy is unable to achieve the greenhouse
gas emissions reduction targets, the bill would require affected regional
agencies to prepare a supplement to the sustainable communities strategy
that would achieve the targets through alternative development patterns
or additional transportation measures. The bill would also require an
affected regional agency to submit a-repor-t statement to the California
Transportation Commissioner describing the relationship of each
project in the regional transportation improvement program to the
regional transportation plan and supplement adopted by the regional
agency. The bill would enact other related provisions.
Because the bill would impose additional duties on local agencies, it
would impose astate-mandated local program.
(2) The California Environmental Quality Act (CEQA) requires a
lead agency, as defined, to prepare, or cause to be prepared, and certify
the completion of, an environmental impact report (EIR) on a project
that it proposes to carry out or approve that may have a significant effect
on the environment or to adopt a negative declaration if it finds that the
project will not have that effect. CEQA also requires a lead agency to
prepare a mitigated negative declaration for a project that may have a
92
- 3 - SB 375
significant effect on the environment if revisions in the project would
avoid or mitigate that effect and there is no substantial evidence that
the project, as revised, would have a significant effect on the
environment.
This bill would require the environmental document prepared pursuant
to CEQA to only examine the significant or potentially significant
project specific impacts of a project located in a local jurisdiction that
has amended its general plan so that the land use, housing, and
open-space elements of the general plan are consistent with the
sustainable communities strategy most recently adopted by the
transportation planning agency, pursuant to the requirements specified
in the bill, if the project meets certain requirements.
The bill would provide that no additional review is required pursuant
to CEQA for a project if the legislative body of a local jurisdiction that
has amended its general plan, as provided above, finds, after conducting
a public hearing, that the project meets certain criteria and is declared
to be a sustainable communities project.
The bill would also authorize the legislative body of a local
jurisdiction to adopt traffic mitigation measures for future residential
projects that meet specified criteria. The bill would exempt such a
residential project seeking a land use approval from compliance with
additional measures for traffic impacts, if the local jurisdiction has
adopted those traffic mitigation measures.
(3) The California Constitution requires the state to reimburse local
agencies and school districts for certain costs mandated by the state.
Statutory provisions establish procedures for making that reimbursement.
This bill would provide that, if the Commission on State Mandates
determines that the bill contains costs mandated by the state,
reimbursement for those costs shall be made pursuant to these statutory
provisions.
Vote: majority. Appropriation: no. Fiscal committee: yes.
State-mandated local program: yes.
The people of the State of California do enact as follows:
1 SECTION 1. The Legislature finds and declares all of the
2 following:
3 (a) The transportation sector contributes over 40 percent of the
4 greenhouse gas emissions in the State of California; automobiles
5 and light trucks alone contribute almost 30 percent. The
92
SB 375 - 4
1 transportation sector is the single largest contributor of greenhouse
2 gases of any sector.
3 (b) In 2006, the Legislature passed and the Governor signed
4 Assembly Bi1132 (Chapter 488 of the Statutes of 2006; hereafter
5 AB 32), which requires the State of California to reduce its
6 greenhouse gas emissions to 1990 levels no later than 2020. In
7 1990, greenhouse gas emissions from automobiles and light trucks
8 were approximately 73 million metric tons, but by 2006 these
9 emissions had increased to approximately 100 million metric tons.
10 (c) Greenhouse gas emissions from automobiles and light trucks
11 can be substantially reduced by new vehicle technology and by
12 the increased use of low carbon fuel. However, even taking these
13 measures into account, it will be necessary to achieve significant
14 additional greenhouse gas reductions from changed land use
15 patterns and improved transportation. Without significant changes
16 in land use and transportation policy, California will not be able
17 to achieve the goals of AB 32.
18 (d) In addition, automobiles and light trucks account for 50
19 percent of air pollution in California and 70 percent of its
20 consumption of petroleum. Changes inland use and transportation
21 policy will provide significant assistance to California's goals to
22 implement the federal and state Clean Air Acts and to reduce its
23 dependence on petroleum.
24 (e) Current federal law requires regional transportation
25 planning agencies to include a land use allocation in the regional
26 transportation plan. Some regions have engaged in a regional
27 "blueprint" process to prepare the land use allocation. This
28 process has been open and transparent. The Legislature intends,
29 by this act, to build upon that successful process and to take an
30 evolutionary step forward.
31 (~ The California Environmental Quality Act (CEQA) is
32 California's premier environmental statute. New provisions of
33 CEQA should be enacted so that the statute encourages local
34 governments to make land use decisions that will help the state
35 achieve its climate goals under AB 32, assist in the achievement
36 of state and federal air quality standards, and increase petroleum
37 conservation.
38 ~
39 (~ Current planning models and analytical techniques used for
40 making transportation infrastructure decisions and for air quality
92
- 5 - SB 375
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planning should be able to assess the effects of policy choices,
such as residential development patterns, expanded transit service
and accessibility, the walkability of communities, and the use of
economic incentives and disincentives.
SEC. 2. Section 14522.1 is added to the Government Code, to
read:
14522.1. (a) (1) The commission, in consultation with the
State Air Resources Board, shall adopt guidelines for travel demand
models used in the development of regional transportation plans
by (A) federally designated metropolitan planning organizations,
(B) county transportation agencies or commissions in areas that
have been designated as nonattainment areas under the federal
Clean Air Act, and (C) in the Counties of Imperial, Los Angeles,
Orange, Riverside, San Bernardino, and Ventura, the agency
described in Section 130004 of the Public Utilities Code.
(2) The preparation of the guidelines shall include the formation
of an advisory committee that shall include representatives of the
regional transportation planning agencies, the department,
organizations knowledgeable in the creation and use of travel
demand models, local governments, and organizations concerned
with the impacts of transportation investments on communities
and the environment. The commission shall hold two workshops
on the guidelines, one in northern California and one in southern
California. The workshops shall be incorporated into regular
commission meetings.
(b) The department shall assist the commission in the preparation
of the guidelines, if requested to do so by the commission.
(c) The guidelines shall, at a minimum and to the extent
practicable, account for all of the following:
(1) The relationship between land use density and household
vehicle ownership and vehicle miles traveled in a way that is
consistent with statistical research.
(2) The impact of enhanced transit service levels on household
vehicle ownership and vehicle miles traveled.
(3) Induced travel and induced land development resulting from
highway or passenger rail expansion.
(4) Mode splitting that allocates trips between automobile,
transit, carpool, and bicycle and pedestrian trips. If a travel demand
model is unable to forecast bicycle and pedestrian trips, another
means may be used to estimate those trips.
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1 (d) The guidelines shall be adopted on or before July 1,~8
2 2009.
3 SEC. 3. Section 14522.2 is added to the Government Code, to
4 read:
5 14522.2. (a) A regional transportation planning agency shall
6 disseminate the methodology, results, and key assumptions of
7 whichever travel demand model it uses in a way that would be
8 useable and understandable to the public.
9 (b) Transportation planning agencies other than those identified
10 in paragraph (1) of subdivision (a) of Section 14522.1, cities,
11 counties, and congestion management agencies within multicounty
12 regions are encouraged, but not required, to utilize the guidelines.
13 SEC. 4. Section 14527 of the Government Code is amended
14 to read:
15 14527. (a) After consulting with the department, the regional
16 transportation planning agencies and county transportation
17 commissions shall adopt and submit to the commission and the
18 department, not later than December 15, 2001, and December 15
19 of each odd-numbered year thereafter, afive-year regional
20 transportation improvement program in conformance with Section
21 65082. In counties where a county transportation commission has
22 been created pursuant to Chapter 2 (commencing with Section
23 130050) of Division 12 of the Public Utilities Code, that
24 commission shall adopt and submit the county transportation
25 improvement program, in conformance with Sections 130303 and
26 130304 of that code, to the multicounty-designated transportation
27 planning agency. For each project included in the program, a-reparE
28 statement shall be submitted to the commission-erg describing the
29 relationship of the project to the regional transportation plan and
30 supplement, if any, prepared pursuant to Section 65080. Other
31 information, including a program for expenditure of local or federal
32 funds, may be submitted for information purposes with the
33 program, but only at the discretion of the transportation planning
34 agencies or the county transportation commissions. As used in this
35 section, "county transportation commission" includes a
36 transportation authority created pursuant to Chapter 2 (commencing
37 with Section 130050) of Division 12 of the Public Utilities Code.
38 (b) The regional transportation improvement program shall
39 include all projects to be funded with the county share under
40 paragraph (2) of subdivision (a) of Section 164 of the Streets and
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1 Highways Code. The regional programs shall be limited to projects
2 to be funded in whole or in part with the county share that shall
3 include all projects to receive allocations by the commission during
4 the following five fiscal years. For each project, the total
5 expenditure for each project component and the total amount of
6 commission allocation and the year of allocation shall be stated.
7 The total cost of projects to be funded with the county share shall
8 not exceed the amount specified in the fund estimate made by the
9 commission pursuant to Section 14525.
10 (c) The regional transportation planning agencies and county
11 transportation commissions may recommend projects to improve
12 state highways with the interregional share pursuant to subdivision
13 (b) of Section 164 of the Streets and Highways Code. The
14 recommendations shall be separate and distinct from the regional
15 transportation improvement program. A project recommended for
16 funding pursuant to this subdivision shall constitute a usable
17 segment and shall not be a condition for inclusion of other projects
18 in the regional transportation improvement program.
19 (d) The department may nominate or recommend the inclusion
20 of projects in the regional transportation improvement program to
21 improve state highways with the county share pursuant to
22 paragraph (2) of subdivision (a) and subdivision (e) of Section 164
23 of the Streets and Highways Code. A regional transportation
24 planning agency and a county transportation commission shall
25 have sole authority for determining whether any of the project
26 nominations or recommendations are accepted and included in the
27 regional transportation improvement program adopted and
28 submitted pursuant to this section. This authority provided to a
29 regional transportation planning agency or to a county
30 transportation commission extends only to a project located within
31 its jurisdiction.
32 (e) Major projects shall include current costs updated as of
33 November 1 of the year of submittal and escalated to the
34 appropriate year, and shall be consistent with, and provide the
35 information required in, subdivision (b) of Section 14529.
36 (f) The regional transportation improvement program may not
37 change the project delivery milestone date of any project as shown
38 in the prior adopted state transportation improvement program
39 without the consent of the department or other agency responsible
40 for the project's delivery.
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1 (g) Projects may not be included in the regional transportation
2 improvement program without a complete project study report or,
3 for a project that is not on a state highway, a project study report
4 equivalent or major investment study.
5 (h) Each transportation planning agency and county
6 transportation commission may request and receive an amount not
7 to exceed 5 percent of its county share for the purposes of project
8 planning, programming, and monitoring.
9 SEC. 5. Section 65080 of the Government Code is amended
10 to read:
11 65080. (a) Each transportation planning agency designated
12 under Section 29532 or 29532.1 shall prepare and adopt a regional
13 transportation plan directed at achieving a coordinated and balanced
14 regional transportation system, including, but not limited to, mass
15 transportation, highway, railroad, maritime, bicycle, pedestrian,
16 goods movement, and aviation facilities and services. The plan
17 shall be action-oriented and pragmatic, considering both the
18 short-term and long-term future, and shall present clear, concise
19 policy guidance to local and state officials. The regional
20 transportation plan shall consider factors specified in Section 134
21 of Title 23 of the United States Code. Each transportation planning
22 agency shall consider and incorporate, as appropriate, the
23 transportation plans of cities, counties, districts, private
24 organizations, and state and federal agencies.
25 (b) The regional transportation plan shall include all of the
26 following:
27 (1) A policy element that describes the transportation issues in
28 the region, identifies and quantifies regional needs, and describes
29 the desired short-range and long-range transportation goals, and
30 pragmatic objective and policy statements. The objective and policy
31 statements shall be consistent with the funding estimates of the
32 financial element. The policy element of transportation planning
33 agencies with populations that exceed 200,000 persons may
34 quantify a set of indicators including, but not limited to, all of the
35 following:
36 (A) Measures of mobility and traffic congestion, including, but
37 not limited to, vehicle hours of delay per capita and vehicle miles
38 traveled per capita.
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(B) Measures of road and bridge maintenance and rehabilitation
needs, including, but not limited to, roadway pavement and bridge
conditions.
(C) Measures of means of travel, including, but not limited to,
percentage share of all trips (work and nonwork) made by all of
the following:
(i) Single occupant vehicle.
(ii) Multiple occupant vehicle or carpool.
(iii) Public transit including commuter rail and intercity rail.
(iv) Walking.
(v) Bicycling.
(D) Measures of safety and security, including, but not limited
to, total injuries and fatalities assigned to each of the modes set
forth in subparagraph (C).
(E) Measures of equity and accessibility, including, but not
limited to, percentage of the population served by frequent and
reliable public transit, with a breakdown by income bracket, and
percentage of all jobs accessible by frequent and reliable public
transit service, with a breakdown by income bracket.
(F) The requirements of this section may be met utilizing
existing sources of information. No additional traffic counts,
household surveys, or other sources of data shall be required.
(2) (AAA sustainable communities strategy prepared as follows:
(A) Within the region under the jurisdiction of each of the
agencies described in paragraph (1) of subdivision (a) of Section
14522.1, no later than January 1,009 2010, the State Air
Resources Board, working in consultation with the affected
transportation planning agencies and after at least one public
workshop, shall provide each affected region with greenhouse gas
emission reduction targets from the automobile and light truck
sector for 2020 and 2035, respectively.
(i) The state board shall update the regional targets consistent
with each agency's timeframe for updating its regional
transportation plan under federal law unti12050.
(ii) In making these determinations, the state board shall consider
greenhouse gas emission reductions that will be achieved by
improvedvehicle emission standards, changes in fuel consumption,
and other measures it has approved that will reduce greenhouse
gas emissions in the affected regions, and prospective measures
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1 the state board plans to adopt to reduce greenhouse gas emissions
2 from other sources.
3 (B) Each agency described in paragraph (1) of subdivision (a)
4 of Section 14522.1 shall prepare a sustainable communities
5 strategy, consistent with the requirements of Part 450 of Title 23
6 of, and Part 93 of Title 40 of, the Code of Federal Regulations,
7 that (i) identifies areas within the region sufficient to house all the
8 population of the region including all economic segments of the
9 population over the course of the planning period taking into
10 account net migration into the region, population growth, household
11 formation and employment growth; (ii) identifies a transportation
12 network to service the transportation needs of the region; (iii) using
13 the best practically available scientific information, identifies
14 significant resource areas and significant farmland; (iv) sets forth
15 a development pattern for the region, a transportation network,
16 and other transportation measures that will reduce the greenhouse
17 gas emissions from automobiles and light trucks to achieve, if
18 there is a feasible way to do so, the targets developed by the board;
19 and (v) will allow the regional transportation plan to comply with
20 Section 176 of the federal Clean Air Act (42 U.S.C. Sec. 7506).
21 (C) In--a the multicounty transportation planning agency
22 described in Section 130004 of the Public Utilities Code, a county
23 and the cities within that county may propose the sustainable
24 communities strategy for that county. That sustainable communities
25 strategy may be approved as part of the sustainable communities
26 strategy for the region provided that the strategy for the region
27 complies with the requirements of this section.
28 (D) A sustainable communities strategy shall be consistent with
29 the state planning priorities specified pursuant to Section 65041.1.
30 (E) In preparing a sustainable communities strategy, the
31 transportation planning agency shall consider spheres of influence
32 that have been adopted within its region.
33 (F) Each agency described in paragraph (1) of subdivision (a)
34 of Section 14522.1 and, within the jurisdiction of the Metropolitan
35 Transportation Commission, the Association of Bay Area
36 Governments shall identify the lands for growth in housing and
37 employment in the sustainable communities strategy in accordance
38 with the following priorities:
39 (i) Infill and redevelopment in existing urbanized areas, and
40 any lands within spheres of influence as of July 1, 2007.
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(ii) Vacant lands or substantially undeveloped lands other than
those identified in clause (i) that are adjacent to an existing or
reasonably foreseeable planned development area and do not
include a significant resource area or significant farmlands.
(iii) If it is not feasible to identify lands for all of the projected
growth in jobs and housing on lands in clauses (i) and (ii), then it
may identify future development on vacant lands or substantially
undeveloped lands adjacent to an existing or reasonably foreseeable
planned development or within a city sphere of influence that
contain significant resource areas as defined in paragraphs (4), (5),
(6), or (7) of subdivision (a) of Section 65080.01 or significant
farmland to the extent consistent with other provisions of local,
state, or federal law.
(iv) If it is not feasible to identify lands for all of the projected
growth in jobs and housing on lands in clauses (i), (ii), and (iii),
then it may identify future development on vacant lands or
substantially undeveloped lands adjacent to an existing or
reasonably foreseeable planned development or within a city sphere
of influence that contain significant resource areas as defined in
paragraph (3) of subdivision (a) of Section 65080.01 to the extent
consistent with other provisions of local, state, or federal law.
(v) If it is not feasible to identify lands for all of the projected
growth in jobs and housing on lands in clauses (i), (ii), (iii), and
(iv), then it may identify future development on other lands, to the
extent consistent with other provisions of local, state, or federal
law, but not on significant resource areas defined in paragraph (1)
or (2) of subdivision (a) of Section 65080.01.
(vi) If the sustainable communities strategy identifies
development on lands in clauses (iii), (iv), or (v) it shall describe
feasible measures to mitigate the impact of projected development
on those lands.
(G) Prior to adopting a sustainable communities strategy, the
regional transportation planning agency and, within the jurisdiction
of the Metropolitan Transportation Commission, the Association
of Bay Area Governments shall either (i) find that zoning has been
enacted within the region for afive-year supply of the housing
need identified in the sustainable communities strategy, or (ii) state
with specificity why the development pattern set forth in the
sustainable communities strategy is the development pattern that
is most likely to occur.
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1 (H) If the sustainable communities strategy, prepared in
2 compliance with subparagraph (B), is unable to reduce greenhouse
3 gas emissions to achieve the targets established by the board, the
4 regional transportation planning agency shall prepare a supplement
5 to the sustainable communities strategy that would achieve those
6 greenhouse gas emission targets through alternative development
7 patterns or additional transportation measures. The supplement
8 shall be a separate document and shall not be part of the regional
9 transportation plan.
10 (I) A sustainable communities strategy does not regulate the
11 use of land, nor shall it be subject to any state~e~iew-ar-approval.
12 Nothing in a sustainable communities strategy shall be interpreted
13 as superseding or interfering with the exercise of the land use
14 authority of cities and counties within the region. Nothing in this
15 section requires an agency to approve a sustainable communities
16 strategy that would be inconsistent with Part 450 of Title 23 of, or
17 Part 93 of Title 40 of, the Code of Federal Regulations and any
18 administrative guidance under those regulations. Nothing in this
19 section relieves a public or private entity or any person from
20 compliance with any other local, state, or federal law.
21 (J) Projects programmed for funding on or before December
22 31, 2011, are not required to be consistent with the sustainable
23 communities strategy if they (i) are contained in the 2007 or 2009
24 Federal Statewide Transportation Improvement Program, (ii) are
25 funded pursuant to Chapter 12.49 (commencing with Section
26 8879.20) of Division 1 of Title 2, or (iii) were specifically listed
27 in a ballot measure prior to December 31, 2006, approving a sales
28 tax increase for transportation projects.
29 (3) An action element that describes the programs and actions
30 necessary to implement the plan and assigns implementation
31 responsibilities. The action element may describe all transportation
32 projects proposed for development during the 20-year or greater
33 life of the plan. The action element shall be consistent with the
34 sustainable communities strategy, except as provided in
35 subparagraph (J) of paragraph (2).
36 The action element shall consider congestion management
37 programming activities carried out within the region.
38 (4) (A) A financial element that summarizes the cost of plan
39 implementation constrained by a realistic projection of available
40 revenues. The financial element shall also contain
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1 recommendations for allocation of funds. A county transportation
2 commission created pursuant to Section 130000 of the Public
3 Utilities Code shall be responsible for recommending projects to
4 be funded with regional improvement funds, if the project is
5 consistent with the regional transportation plan. The first five years
6 of the financial element shall be based on the five-year estimate
7 of funds developed pursuant to Section 14524. The financial
8 element may recommend the development of specified new sources
9 of revenue, consistent with the policy element and action element.
10 (B) The financial element of transportation planning agencies
11 with populations that exceed 200,000 persons may include a project
12 cost breakdown for all projects proposed for development during
13 the 20-year life of the plan that includes total expenditures and
14 related percentages of total expenditures for all of the following:
15 (i) State highway expansion.
16 (ii) State highway rehabilitation, maintenance, and operations.
17 (iii) Local road and street expansion.
18 (iv) Local road and street rehabilitation, maintenance, and
19 operation.
20 (v) Mass transit, commuter rail, and intercity rail expansion.
21 (vi) Mass transit, commuter rail, and intercity rail rehabilitation,
22 maintenance, and operations.
23 (vii) Pedestrian and bicycle facilities.
24 (viii) Environmental enhancements and mitigation.
25 (ix) Research and planning.
26 (x) Other categories.
27 (c) Each transportation planning agency may also include other
28 factors of local significance as an element of the regional
29 transportation plan, including, but not limited to, issues of mobility
30 for specific sectors of the community, including, but not limited
31 to, senior citizens.
32 (d) Except as otherwise provided in this subdivision, each
33 transportation planning agency shall adopt and submit, every four
34 years, an updated regional transportation plan to the California
35 Transportation Commission and the Department of Transportation.
36 A transportation planning agency located in a federally designated
37 air quality attainment area or that does not contain an urbanized
38 area may at its option adopt and submit a regional transportation
39 plan every five years. When applicable, the plan shall be consistent
40 with federal planning and programming requirements and shall
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1 conform to the regional transportation plan guidelines adopted by
2 the California Transportation Commission. Prior to adoption of
3 the regional transportation plan, a public hearing shall be held after
4 the giving of notice of the hearing by publication in the affected
5 county or counties pursuant to Section 6061.
6 SEC. 6. Section 65080.01 is added to the Government Code,
7 to read:
8 65080.01. The following definitions apply to terms used in
9 Section 65080:
10 (a) "Significant resource areas" include (1) all publicly owned
11 parks and open space; (2) open space or habitat areas protected by
12 natural community conservation plans, habitat conservation plans,
13 and other adopted natural resource protection plans; (3) habitat for
14 species identified as candidate, fully protected, sensitive, or species
15 of special status by local, state, or federal agencies or protected
16 by the federal Endangered Species Act of 1973, the California
17 Endangered Species Act, or the Native Plan Protection Act; (4)
18 lands subject to conservation or agricultural easements for
19 conservation or agricultural purposes by local governments, special
20 districts, or nonprofit 501(c)(3} organizations, and lands under
21 Williamson Act contracts; (5) areas designated for open-space
22 uses in adopted open-space elements of the local general plan or
23 by local ordinance; (6) habitat blocks, linkages, or watershed units
24 that protect regional populations of native species, including
25 sensitive, endemic, keystone, and umbrella species, and the
26 ecological processes that maintain them; and (7) an area subject
27 to flooding where a development project would not, at the time of
28 development in the judgment of the agency, meet the requirements
29 of the National Flood Insurance Program or where the area is
30 subject to more protective provisions of state law or local
31 ordinance.
32 (b) "Significant farmland" means farmland that is classified as
33 prime or unique farmland, or farmland of statewide importance
34 and is outside all existing city spheres of influence or city limits
35 as of January 1, 2007.
36 (c) "Consistent with the sustainable communities strategy"
37 means that the capacity of the transportation projects or
38 improvements does not exceed that which is necessary to provide
39 reasonable service levels for the existing population and the
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1 planned growth of the region as set forth in the sustainable
2 communities strategy.
3 (d) "Feasible" means capable of being accomplished in a
4 successful manner within a reasonable period of time, taking into
5 account economic, environmental, legal, social, and technological
6 factors.
7 SEC. 7. Section 65584.01 of the Government Code is amended
8 to read:
9 65584.01. (a) For the fourth and subsequent revision of the
10 housing element pursuant to Section 65588, the department, in
11 consultation with each council of governments, where applicable,
12 shall determine the existing and projected need for housing for
13 each region in the following manner:
14 (b) The department's determination shall be based upon
15 population projections produced by the Department of Finance
16 and regional population forecasts used in preparing regional
17 transportation plans, in consultation with each council of
18 governments. If the total regional population forecast for the
19 planning period, developed by the council of governments and
20 used for the preparation of the regional transportation plan, is
21 within a range of 3 percent of the total regional population forecast
22 for the planning period over the same time period by the
23 Department of Finance, then the population forecast developed by
24 the council of governments shall be the basis from which the
25 department determines the existing and projected need for housing
26 in the region. If the difference between the total population growth
27 projected by the council of governments and the total population
28 growth projected for the region by the Department of Finance is
29 greater than 3 percent, then the department and the council of
30 governments shall meet to discuss variances in methodology used
31 for population projections and seek agreement on a population
32 projection for the region to be used as a basis for determining the
33 existing and projected housing need for the region. If no agreement
34 is reached, then the population projection for the region shall be
35 the population projection for the region prepared by the Department
36 of Finance as may be modified by the department as a result of
37 discussions with the council of governments.
38 (c) (1) At least 26 months prior to the scheduled revision
39 pursuant to Section 65588 and prior to developing the existing and
40 projected housing need for a region, the department shall meet and
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1 consult with the council of governments regarding the assumptions
2 and methodology to be used by the department to determine the
3 region's housing needs. The council of governments shall provide
4 data assumptions from the council's projections, including, if
5 available, the following data for the region:
6 (A) Anticipated household growth associated with projected
7 population increases.
8 (B) Household size data and trends in household size.
9 (C) The rate of household formation, or headship rates, based
10 on age, gender, ethnicity, or other established demographic
11 measures.
12 (D) The vacancy rates in existing housing stock, and the vacancy
13 rates for healthy housing market functioning and regional mobility,
14 as well as housing replacement needs.
15 (E) Other characteristics of the composition of the projected
16 population.
17 (2) The department may accept or reject the information
18 provided by the council of governments or modify its own
19 assumptions or methodology based on this information. After
20 consultation with the council of governments, the department shall
21 make determinations in writing on the assumptions for each of the
22 factors listed in subparagraphs (A) to (E), inclusive, of paragraph
23 (1) and the methodology it shall use and shall provide these
24 determinations to the council of governments.
25 (d) (1) After consultation with the council of governments, the
26 department shall make a determination of the region's existing
27 and projected housing need based upon the assumptions and
28 methodology determined pursuant to subdivision (c). The region's
29 existing and projected housing need shall reflect the achievement
30 of a feasible balance between jobs and housing within the region
31 using the regional employment projections in the applicable
32 regional transportation plan. Within 30 days following notice of
33 the determination from the department, the council of governments
34 may file an objection to the department's determination of the
35 region's existing and projected housing need with the department.
36 (2) The objection shall be based on and substantiate either of
37 the following:
38 (A) The department failed to base its determination on the
39 population projection for the region established pursuant to
40 subdivision (b), and shall identify the population projection which
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1 the council of governments believes should instead be used for the
2 determination and explain the basis for its rationale.
3 (B) The regional housing need determined by the department
4 is not a reasonable application of the methodology and assumptions
5 determined pursuant to subdivision (c). The objection shall include
6 a proposed alternative determination of its regional housing need
7 based upon the determinations made in subdivision (c), including
8 analysis of why the proposed alternative would be a more
9 reasonable application of the methodology and assumptions
10 determined pursuant to subdivision (c).
11 (3) If a council of governments files an objection pursuant to
12 this subdivision and includes with the objection a proposed
13 alternative determination of its regional housing need, it shall also
14 include documentation of its basis for the alternative determination.
15 Within 45 days of receiving an objection filed pursuant to this
16 section, the department shall consider the objection and make a
17 final written determination of the region's existing and projected
18 housing need that includes an explanation of the information upon
19 which the determination was made.
20 SEC. 8. Section 21061.3 of the Public Resources Code is
21 amended to read:
22 21061.3. "Infill site" means a site in an urbanized area that
23 meets either of the following criteria:
24 (a) The site has not been previously developed for urban uses
25 and both of the following apply:
26 (1) The site is immediately adjacent to parcels that are developed
27 with qualified urban uses, or at least 75 percent of the perimeter
28 of the site adjoins parcels that are developed with qualified urban
29 uses, and the remaining 25 percent of the site adjoins parcels that
30 have previously been developed for qualified urban uses.
31 (2) No parcel within the site has been created within the past
32 10 years unless the parcel was created as a result of the plan of a
33 redevelopment agency.
34 (b) The site has been previously developed for qualified urban
35 uses.
36 SEC. 9. Section 21094 of the Public Resources Code is
37 amended to read:
38 21094. (a) Where a prior environmental impact report has
39 been prepared and certified for a program, plan, policy, or
40 ordinance, the lead agency for a later project that meets the
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requirements of this section shall examine significant effects of
the later project upon the environment by using a tiered
environmental impact report, except that the report on the later
project need not examine those effects which the lead agency
determines were either (1) mitigated or avoided pursuant to
paragraph (1) of subdivision (a) of Section 21081 as a result of the
prior environmental impact report, or (2) examined at a sufficient
level of detail in the prior environmental impact report to enable
those effects to be mitigated or avoided by site specific revisions,
the imposition of conditions, or by other means in connection with
the approval of the later project.
(b) This section applies only to a later project which the lead
agency determines (1) is consistent with the program, plan, policy,
or ordinance for which an environmental impact report has been
prepared and certified, (2) is consistent with applicable local land
use plans and zoning of the city, county, or city and county in
which the later project would be located, and (3) is not subject to
Section 21166.
(c) For purposes of compliance with this section, an initial study
shall be prepared to assist the lead agency in making the
determinations required by this section. The initial study shall
analyze whether the later project may cause significant effects on
the environment that were not examined in the prior environmental
impact report.
(d) All public agencies which propose to carry out or approve
the later project may utilize the prior environmental impact report
and the environmental impact report on the later project to fulfill
the requirements of Section 21081.
(e) When tiering is used pursuant to this section, an
environmental impact report prepared for a later project shall refer
to the prior environmental impact report and state where a copy
of the prior environmental impact report may be examined.
(f) If a residential, commercial, or retail project is consistent
with a sustainable communities strategy, as modified by a
supplement, if any, adopted pursuant to Section 65080 of the
Government Code, the environmental analysis of that project may
tier the analysis of the climate impacts of greenhouse gas emissions
from automobiles and light trucks associated with the project from
the environmental impact report prepared for the regional
transportation plan. For purposes of this section, "consistent with
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a sustainable communities strategy" means that the use, density,
and intensity of the project are consistent with the use, density,
and intensity identified for the project area in the sustainable
communities strategy, as modified by a supplement, if any, and
any mitigation measures adopted in the environmental impact
report on the regional transportation plan have been or will be
incorporated into the project. Nothing in this subdivision restricts
the use of a tiered environmental impact report as otherwise
provided in this division.
SEC. 10. Chapter 4.2 (commencing with Section 21155) is
added to Division 13 of the Public Resources Code, to read:
CHAPTER 4.2. IMPLEMENTATION OF THE SUSTAINABLE
COMMUNITIES STRATEGY
21155. (a) This chapter applies only within a local jurisdiction
that has amended its general plan so that the land use, housing,
and open-space elements of the general plan are substantially
consistent with the sustainable communities strategy, as modified
by a supplement, if any, most recently adopted by the transportation
planning agency pursuant to Section 65080 of the Government
Code for the region in which the local government is located.
(b) For purposes of this section, the land use, housing, and
open-space elements of the general plan are substantially consistent
with the sustainable communities strategy, as modified by a
supplement, if any, if the land use and housing elements designate
housing, retail, commercial, office, and industrial uses at levels of
density and intensity that are substantially consistent with the uses,
density, and intensity identified in the sustainable communities
strategy, as modified by a supplement, if any, for those locations
and if the open space element designates uses for significant
farmlands or significant resource areas that are consistent with the
protection of all of the resources of those lands or areas.
(c) Notwithstanding subdivision (a), the provisions of Sections
21155.1, 21155.2, and 21155.3 may be utilized for projects within
a local jurisdiction if the project is shown only in the supplement
to the sustainable communities strategy.
(d) Notwithstanding subdivision (a) or (c), the provisions of
Sections 21155.1, 21155.2, and 21155.3 may not be utilized for
projects identified for development on lands referenced in clause
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(v) of subparagraph (F) of paragraph (2) of subdivision (b) of
Section 65080.
21155.1. If the legislative body finds, after conducting a public
hearing, that a project meets all of the requirements of subdivisions
(a) and (b) and one of the requirements of subdivision (c), the
project is declared to be a sustainable communities project and
shall not be subject to any other provisions of this division.
(a) The project complies with all of the following environmental
criteria:
(1) The project and other projects approved prior to the approval
of the project but not yet built can be adequately served by existing
utilities, and the project applicant has paid, or has committed to
pay, all applicable in-lieu or development fees.
(2) (A) The site of the project does not contain wetlands or
riparian areas and does not have significant value as a wildlife
habitat, and the project does not harm any species protected by the
federal Endangered Species Act of 1973 (16 U.S.C. Sec. 1531 et
seq.), the Native Plant Protection Act (Chapter 10 (commencing
with Section 1900) of Division 2 of the Fish and Game Code), or
the California Endangered Species Act (Chapter 1.5 (commencing
with Section 2050) of Division 3 of the Fish and Game Code), and
the project does not cause the destruction or removal of any species
protected by a local ordinance in effect at the time the application
for the project was deemed complete.
(B) For the purposes of this paragraph, "wetlands" has the same
meaning as in the United States Fish and Wildlife Service Manual,
Part 660 FW 2 (June 21, 1993).
(C) For the purposes of this paragraph:
(i) "Riparian areas" means those areas transitional between
terrestrial and aquatic ecosystems and that are distinguished by
gradients in biophysical conditions, ecological processes, and biota.
A riparian area is an area through which surface and subsurface
hydrology connect waterbodies with their adjacent uplands. A
riparian area includes those portions of terrestrial ecosystems that
significantly influence exchanges of energy and matter with aquatic
ecosystems. A riparian area is adjacent to perennial, intermittent,
and ephemeral streams, lakes, and estuarine-marine shorelines.
(ii) "Wildlife habitat" means the ecological communities upon
which wild animals, birds, plants, fish, amphibians, and
invertebrates depend for their conservation and protection.
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(iii) Habitat of "significant value" includes wildlife habitat of
national, statewide, regional, or local importance; habitat for
species protected by the federal Endangered Species Act of 1973
(16 U.S.C. Sec. 1531, et seq.), the California Endangered Species
Act (Chapter 1.5 (commencing with Section 2050) of Division 3
of the Fish and Game Code), or the Native Plant Protection Act
(Chapter 10 (commencing with Section 1900) of Division 2 of the
Fish and Game Code); habitat identified as candidate, fully
protected, sensitive, or species of special status by local, state, or
federal agencies; or habitat essential to the movement of resident
or migratory wildlife.
(3) The site of the project is not included on any list of facilities
and sites compiled pursuant to Section 65962.5 of the Government
Code.
(4) The site of the project is subject to a preliminary
endangerment assessment prepared by a registered environmental
assessor to determine the existence of any release of a hazardous
substance on the site and to determine the potential for exposure
of future occupants to significant health hazards from any nearby
property or activity.
(A) If a release of a hazardous substance is found to exist on
the site, the release shall he removed or any significant effects of
the release shall be mitigated to a level of insignificance in
compliance with state and federal requirements.
(B) If a potential for exposure to significant hazards from
surrounding properties or activities is found to exist, the effects of
the potential exposure shall be mitigated to a level of insignificance
in compliance with state and federal requirements.
(5) The project does not have a significant effect on historical
resources pursuant to Section 21084.1.
(6) The project site is not subject to any of the following:
(A) A wildland fire hazard, as determined by the Department
of Forestry and Fire Protection, unless the applicable general plan
or zoning ordinance contains provisions to mitigate the risk of a
wildland fire hazard.
(B) An unusually high risk of fire or explosion from materials
stored or used on nearby properties.
(C) Risk of a public health exposure at a level that would exceed
the standards established by any state or federal agency.
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1 (D) Seismic risk as a result of being within a delineated
2 earthquake fault zone, as determined pursuant to Section 2622, or
3 a seismic hazard zone, as determined pursuant to Section 2696,
4 unless the applicable general plan or zoning ordinance contains
5 provisions to mitigate the risk of an earthquake fault or seismic
6 hazard zone.
7 (E) Landslide hazard, flood plain, flood way, or restriction zone,
8 unless the applicable general plan or zoning ordinance contains
9 provisions to mitigate the risk of a landslide or flood.
10 (7) The project site is not located on developed open space.
11 (A) For the purposes of this paragraph, "developed open space"
12 means land that meets all of the following criteria:
13 (i) Is publicly owned, or financed in whole or in part by public
14 funds.
15 (ii) Is generally open to, and available for use by, the public.
16 (iii) Is predominantly lacking in structural development other
17 than structures associated with open spaces, including, but not
18 limited to, playgrounds, swimming pools, ballfields, enclosed child
19 play areas, and picnic facilities.
20 (B) For the purposes of this paragraph, "developed open space"
21 includes land that has been designated for acquisition by a public
22 agency for developed open space, but does not include lands
23 acquired with public funds dedicated to the acquisition of land for
24 housing purposes.
25 (8) The buildings in the project will comply with all green
26 building standards required by the local jurisdiction.
27 (b) The project meets all of the following land use criteria:
28 (1) The project is located on an infill site.
29 (2) The project is a residential project or a residential or mixed
30 use project consisting of residential uses and primarily
31 neighborhood-serving goods, services, or retail uses that do not
32 exceed 25 percent of the total floor area of the project.
33 (3) The site of the project is not more than eight acres in total
34 area.
35 (4) The project does not contain more than 200 residential units.
36 (5) The project density is at least equal to the applicable density
37 level provided in subparagraph (B) of paragraph (3) of subdivision
38 (c) of Section 65583.2 of the Government Code.
39 (6) The project does not result in any net loss in the number of
40 affordable housing units within the project area.
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1 (7) The project does not include any single level building that
2 exceeds 75,000 square feet.
3 (8) The project is consistent with the general plan.
4 (9) Any applicable mitigation measures approved in the final
5 environmental impact reports on the regional transportation plan
6 or the local general plan amendment have been or will be
7 incorporated into the project.
8 (10) The project is determined not to conflict with nearby
9 operating industrial uses.
10 (c) The project meets at least one of the following four criteria:
11 (1) The project meets both of the following:
12 (A) At least 20 percent of the housing will be sold to families
13 of moderate income, or not less than 10 percent of the housing
14 will be rented to families of low income, or not less than 5 percent
15 of the housing is rented to families of very low income.
16 (B) The project developer provides sufficient legal commitments
17 to the appropriate local agency to ensure the continued availability
18 and use of the housing units for very low, low-, and
19 moderate-income households at monthly housing costs determined
20 pursuant to paragraph (3) of subdivision (h) of Section 65589.5 of
21 the Government Code. Rental units shall be affordable for at least
22 55 years. Ownership units shall be subject to resale restrictions or
23 equity sharing requirements for at least 30 years.
24 (2) The project developer has paid or will pay in-lieu fees
25 pursuant to a local ordinance in an amount sufficient to result in
26 the development of an equivalent number of units that would
27 otherwise be required pursuant to paragraph (1).
28 (3) The project is located within one-quarter mile of a major
29 transit stop.
30 (4) The project provides public open space equal to or greater
31 than five acres per 1,000 residents of the project.
32 21155.2. (a) A project that meets the following requirements
33 shall be eligible for either the provisions of subdivision (b) or (c):
34 (1) Environmental impact reports have been certified on the
35 regional transportation plan containing the sustainable communities
36 strategy and on the applicable general plan provisions.
37 (2) Any applicable mitigation measures or performance
38 standards or criteria set forth in the prior environmental impact
39 reports, and adopted in findings, have been or will be incorporated
40 into the project.
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1 (3) The project density is at least 10 residential units per net
2 acre.
3 (4) At least 75 percent of the total building square footage of
4 the project consists of residential buildings.
5 (b) A project that satisfies the requirements of subdivision (a)
6 maybe reviewed through a sustainable communities environmental
7 assessment as follows:
8 (1) An initial study shall be prepared to identify all significant
9 or potentially significant project-specific impacts of the project.
10 The initial study does not need to evaluate any significant
11 cumulative or growth-inducing effects on the environment that
12 were identified and discussed in the environmental impact reports
13 certified for the regional transportation plan and the general plan.
14 (2) The sustainable communities environmental assessment
15 shall contain measures. that substantially lessen to a level of
16 insignificance or avoid all project-specific impacts of the project.
17 (3) A draft of the sustainable communities environmental
18 assessment shall be circulated for public comment for a period of
19 not less than 30 days. Notice shall be provided in the same manner
20 as required for an environmental impact report pursuant to Section
21 21092.
22 (4) Prior to acting on the sustainable communities environmental
23 assessment, the lead agency shall consider all comments received.
24 (5) A sustainable communities environmental assessment may
25 be approved by the lead agency after conducting a public hearing,
26 reviewing the comments received, and finding that:
27 (A) All potentially significant or significant project-specific
28 impacts have been identified and analyzed.
29 (B) With respect to each significant project-specific impact on
30 the environment, either of the following apply:
31 (i) Changes or alterations have been required in or incorporated
32 into the project that avoid or substantially lessen the significant
33 effects to a level of insignificance.
34 (ii) Those changes or alterations are within the responsibility
35 and jurisdiction of another public agency and have been, or can
36 and should be, adopted by that other agency.
37 (6) The legislative body of the lead agency shall conduct the
38 public hearing or a planning commission may conduct the public
39 hearing if local ordinances allow a direct appeal of approval of a
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document prepared pursuant to this division to the legislative body
subject to a fee not to exceed five hundred dollars ($500).
(7) The lead agency's approval of a sustainable communities
environmental assessment shall be reviewed under the substantial
evidence standard.
(c) A project that satisfies the requirements of subdivision (a)
maybe reviewed by an environmental impact report that complies
with all of the following:
(1) An initial study shall be prepared to identify all the
project-specific impacts of the project that may have a significant
effect on the environment based upon substantial evidence in light
of the whole record. The initial study does not need to evaluate
any significant cumulative or growth-inducing effects on the
environment that were identified and discussed in the
environmental impact reports certified for the regional
transportation plan and the general plan.
(2) An environmental impact report prepared pursuant to this
subdivision need only address the significant or potentially
significant impacts on the environment identified pursuant to
paragraph (1). It is not required to analyze ofd site alternatives to
the project. It shall otherwise comply with the requirements of this
division.
21155.3. (a) The legislative body of a local jurisdiction may
adopt traffic mitigation measures that would apply to future
projects described in subdivision (b). These measures shall be
adopted or amended after a public hearing and may include
requirements for the installation of traffic control improvements,
street or road improvements, and contributions to road
improvement or transit funds, transit passes for future residents,
or other measures that will avoid or substantially lessen the traffic
impacts of those future projects.
(b) The traffic mitigation measures adopted pursuant to this
section shall apply to projects where the residential density is at
least 10 units per net acre and where at least 75 percent of the total
building square footage of the project consists of residential
buildings.
(c) (1) A project described in subdivision (b) that is seeking a
discretionary approval is not required to comply with any additional
mitigation measures required by paragraph (1) or (2) of subdivision
(a) of Section 21081, for the traffic impacts of that project on
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1 intersections, streets, highways, freeways, or mass transit, if the
2 local jurisdiction issuing that discretionary approval has adopted
3 traffic mitigation measures in accordance with this section.
4 (2) Paragraph (1) does not restrict the authority of a local
5 jurisdiction to adopt feasible mitigation measures with respect to
6 the impacts of a project on public health or on pedestrian or bicycle
7 safety.
8 (d) The legislative body shall review its traffic mitigation
9 measures and update them as needed at least every five years.
10 SEC. 11. If the Commission on State Mandates determines
11 that this act contains costs mandated by the state, reimbursement
12 to local agencies and school districts for those costs shall be made
13 pursuant to Part 7 (commencing with Section 17500) of Division
14 4 of Title 2 of the Government Code.
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ATTACHMENT B
DRAFT LETTER OF OPPOSITION
March 19, 2008
The Honorable Senator Darrell Steinberg
State Capitol Building, Room 4035
Sacramento, CA 95814
SUBJECT: SB 375 (STEINBERG) -LETTER OF OPPOSITION
Dear Senator Steinberg:
On behalf of the City of Tustin, I wish to express our continued opposition to Senate Bill
375.
SB 375 would require regional transportation planning agencies to include a sustainable
communities strategy in their regional transportation plans and would offer incentives to
implement the strategy.
Although SB 375 would not supersede local land use authority, it would require federal
and state funded projects to be consistent with the applicable regional transportation
plan beginning in 2009. Because of local government dependence on outside funding
sources, this consistency requirement would effectively mandate local jurisdictions to
comply with the sustainable communities strategy.
SB 375 also would streamline the environmental review process for projects when the
local jurisdiction's general plan conforms to the sustainable communities strategy or
when a project can be declared a "Sustainable Communities' Project." The
effectiveness of these proposed changes to the California Environmental Quality Act
(CEQA) are questionable because many projects may not satisfy the prerequisites
needed to take advantage of the streamlined provisions.
The Southern California Association of Governments (SCAG) has adopted a voluntary
regional growth scenario called Compass Blueprint that includes a program called the
2% Strategy. This voluntary program encourages local governments to plan for
sustainable growth and improve mobility and livability by offering free planning services
through selected demonstration projects within the region.
Senator Darrell Steinberg
March 19, 2008
Page 2
The City of Tustin is concerned about mandatory regional planning efforts because they
potentially interfere with local community planning and may conflict with existing State
mandates.
For example, State housing element law requires local jurisdictions to identify sites to
accommodate their housing need as identified by the Regional Housing Needs
Assessment (RHNA). All of these housing sites may not be consistent with the land use
plan under a sustainable communities strategy. If SB 375 were adopted, jurisdictions
may be ineligible to receive transportation funding while attempting to meet their
affordable housing goals.
Although the reduction of greenhouse gas emissions is a worthy goal, the imposition of
additional restrictions on local land use planning does not acceptably address this goal.
Local governments need more funding tools, rather than additional state mandates, to
encourage the development of sustainable and livable communities and to reduce
greenhouse gas emissions.
For these reasons, the City of Tustin opposes Senate Bill 375.
Sincerely,
Jerry Amante
Mayor
cc: Senator Ackerman
Assembly Member DeVore
Assembly Member Duvall
Assembly Member Solorio
Assembly Member Spitzer
Assembly Member Van Tran
Assembly Member Walters
Brad Williams, Consultant, Assembly Committee on Appropriations
Stacey Sullivan, Consultant, Assembly Local Government Committee
Hugh Bower, Chief Consultant, Assembly Housing and Community Development Committee
Lawrence Lingbloom, Chief Consultant, Assembly Natural Resources Committee
Bill Higgins, League of California Cities
S:\Cdd\SCOTT\LEGISLAT\SB 375 Position Letter 2008.doc