HomeMy WebLinkAbout10 RESOLUTION AUTHORIZING CONVERSION OF A PUBLIC FACILITY INTO A FACILITY FOR UNSHELTERED INDIVIDUALS AND DECLARING THE NEED FOR IMMEDIATE EXPEDITUREAgenda Item 1.0-
AGENDA REPORT Reviewed:
City Manager
Finance Director
MEETING DATE: NOVEMBER 6, 2018
TO: JEFFREY C. PARKER, CITY MANAGER
FROM: TUSTIN HOUSING AUTHORITY
SUBJECT: RESOLUTION AUTHORIZING CONVERSION OF A PUBLIC FACILITY
INTO A FACILITY FOR UNSHELTERED INDIVIDUALS AND DECLARING
THE NEED FOR THE IMMEDIATE EXPENDITURE OF PUBLIC MONEY TO
CONVERT THE CITY -OWNED STRUCTURES.
SUMMARY:
Adoption of resolutions declaring the need for the immediate expenditure of public money
in order to convert City -owned structures into shelter for unsheltered men, women and
children will enable the City: (1) to protect the health, safety and welfare of residents by
housing unsheltered individuals; (2) to comply with the Federal Court 120 day deadline
to open a shelter for the homeless; and (3) to enforce ordinances prohibiting unregulated
homeless encampments in public areas such as the City's camping and related
ordinances, thus protecting the quality of life in Tustin.
RECOMMENDATION: That the City Council:
Adopt Resolution 18-76 (Attachment A) authorizing conversion of City -owned
structures into a shelter for unsheltered individuals; and
2. Approve the Notice of Exemption (Exhibit B) and the Notice of Determination
(Exhibit C), and direct staff to file them with the County Clerk; and
3. Adopt Resolution 18-84 (Attachment F) declaring the necessity of the immediate
expenditure of public money to convert the structures pursuant to Public Contract
Code § 20168; and delegating authority to order action in furtherance of such
conversion pursuant to Public Contract Code § 22050(B)(1); (4/5ths vote required);
and
4. Direct staff to initiate outreach to solicit public input regarding the long-term
location of a homeless shelter.
Ism
1327335.1
Agenda Report — Resolution Authorizing Conversion of City -Owned Structures to Homeless
Shelter and Declaring the Necessity of Immediate Expenditure of Public Money
November 6, 2018
Page 2
5. Provide direction to staff to return to a future meeting of the City Council with a
report regarding an alternative location for the temporary shelter.
FISCAL IMPACT:
Resolution 18-76 will authorize the Public Works Director to proceed with the
expenditures to convert City -owned structures into shelter for the homeless without formal
Public Contract Code bidding. The total cost of the conversion of the existing facility
located at the corner of Redhill Avenue and Valencia Avenue (across Valencia from
Village of Hope) is unknown at this time but will be reported to the City Council when a
cost proposal is received.
CORRELATION TO THE STRATEGIC PLAN:
Strategic Plan Goal B is to ensure Tustin is an attractive, safe and well-maintained
community in which people feel pride. Authorizing the Public Works Director to proceed
with expenditures to convert City -owned structures into a shelter without formal Public
Contract Code bidding enables the City to convert such facilities to shelter beds in an
expedited manner. Expediting the project is consistent with the October 16 declaration
of shelter crisis and enables the City to meet the 120 -day Federal Court deadline to open
a facility. Opening a facility in turn will enable the City to enforce its camping and related
ordinances to ensure the City remains attractive, safe and well maintained.
BACKGROUND AND DISCUSSION:
Prior Resolution Declaring Shelter Emergency
In the last Point in Time Count and Survey in January, 2017, 69 persons were identified
as unsheltered in the City of Tustin. (See Attachment D.) Of those, 57 were male and
12 were female. Since the last Point in Time Count, the number of unsheltered individuals
in the County and in the City of Tustin has increased for a variety of reasons. The next
Point in Time Count is scheduled to occur in January, 2019. In response to the growing
number of unsheltered individuals in the City, and to enable the City to apply for State
funds to assist in providing shelter for unsheltered individuals, on October 16, 2018 the
City Council adopted Resolution 18-75 declaring a shelter crisis pursuant to California
Government Code section 8698.
Recent Legal Limitations Imposed on the City's Authority to Enforce Ordinances Against
Homeless Individuals.
At the same time, public agencies have seen their authority to enforce ordinances
prohibiting sleeping in outdoor areas like parks and public plazas reduced by court
decisions. Most recently, on September 4, 2018, the Ninth Circuit Court of Appeals in
Martin et al v City of Boise (9t' Cir. 9/4/2018) _ FAth _, Case No. 15-35845, opinion
1327335.1
Agenda Report — Resolution Authorizing Conversion of City -Owned Structures to Homeless
Shelter and Declaring the Necessity of Immediate Expenditure of Public Money
November 6, 2018
Page 3
attached as Attachment E) held that enforcing a city ordinance that prohibits sleeping in
public places violates the Constitution's ban on cruel and unusual punishment if there are
no alternatives available to the individual in the jurisdiction.
Although the City of Tustin is home to exemplary facilities for individuals who find
themselves homeless, including the Village of Hope and the Veteran's Outpost, the
shelter components of those are currently run with religious practices attached.
Unfortunately, under the Ninth Circuit's published decision in Martin v. Boise, cities cannot
criminally punish individuals for sleeping outdoors if their only alternative is a facility run
with religious requirements attached. As a result, unless secular sleeping facilities are
actually available and offered as an alternative at the time of enforcement the Ninth Circuit
decision would likely result in litigation to preclude the City from enforcing against the
homeless the City ordinances that preclude sleeping in public places.
The Federal Lawsuit and the Likely Migration of Homeless Populations to Cities Without
Shelters.
Meanwhile, Federal lawsuits were filed last year when the County of Orange and City of
Anaheim relocated several hundred homeless individuals from the flood control channel
in Anaheim. Several of those lawsuits were consolidated and assigned to Federal District
Court Judge David Carter in Santa Ana. The City of Tustin was sued as part of those
lawsuits, as have the County of Orange and all of the other cities in Orange County.
Judge Carter made it clear that he would issue injunctions against any city that enforces
its anti -camping and related ordinances against homeless individuals unless the City
offers an immediately -available secular bed at the time of enforcement.
As a result of that litigation, nearby cities including Santa Ana and Anaheim are building
new and expanded shelters for homeless individuals that, when opened, will enable those
cities to enforce their prohibitions on camping in public areas. (Judge Carter announced
on October 29, 2018, for instance, that the opening of a new 200 -bed emergency
homeless facility in an unspecified location in Santa Ana is "imminent".) And other cities
have, like Tustin, approved Federal settlement agreements in the litigation committing to
open similar facilities so those cities will have immediately available beds to offer when
they enforce ordinances against sleeping and camping in public places.
Future enforcement of camping ordinances in those cities that do have available shelter
beds is likely to cause those homeless individuals who are unwilling to accept those cities'
facilities to migrate to other cities that do not, and that therefore lack authority to enforce
their anti -camping ordinances.
That is one of the key reasons the City of Tustin sees an urgent need to establish an
emergency homeless facility with beds available for the City to refer its homeless to.
Taking action as soon as possible to ensure that there are adequate secular sleeping
alternatives available to those who are willing to accept them will help the City of Tustin
1327335.1
Agenda Report — Resolution Authorizing Conversion of City -Owned Structures to Homeless
Shelter and Declaring the Necessity of Immediate Expenditure of Public Money
November 6, 2018
Page 4
ensure that public areas like parks, the civic center, the library plaza and city sidewalks
will remain safe, attractive and well-maintained for the public at large.
If a migration of a homeless population from one or more other cities to Tustin occurs
before the City of Tustin has established immediately -available beds to offer, the City will
lack the ability to enforce its anti -camping ordinance, and the City's unsheltered
population is likely to grow as a result.
A City -owned location that is appropriately zoned.
The City owns a facility that is currently vacant that until recently was leased to the South
Orange County Community College District for their Advanced Technology Education
Park ("ATEP"). The site is within Planning Area 1 of the Tustin Specific Plan down
Lansdowne from Heritage Elementary School. Along with Planning Area 3, Planning Area
1 in the Specific Plan supports the accommodation of emergency shelters, transitional
housing, supportive housing, and community care facilities. In addition, the property is
located directly across the street from the existing Village of Hope, a successful facility
which, among other services, currently provides medical and dental services to homeless
individuals on a secular basis. As a result of its proximity to existing services, land use
designation and the size, facilities and layout of the former ATEP buildings, and the
comparatively lower shelter operational expenses by utilizing a City -owned facility, the
City is in a position to quickly, efficiently and cost-effectively convert the former ATEP
facility into an at least 50 -bed homeless shelter. Doing so will enable the City to comply
with the terms of the Federal court settlement which requires the City to establish a
secular homeless facility within 120 days.
Declaring Need the for Immediate Expenditures
The California Public Contract Code ordinarily requires City public works contracts to be
competitively bid when a contract exceeds $5,000. However, Public Contract Code
section 20168 allows an exception to the competitive bidding requirements when a city
council adopts a resolution by a four-fifths vote declaring that the public interest and
necessity demand the immediate expenditure of public money to safeguard life, health,
or property.
Based on the Council's October 16 declaration of a shelter crisis, the emergency
exemption requirements set forth in Public Contract Code section 20168 would be met.
The presence of many unsheltered individuals in the City satisfies the definitions of a
homeless crisis under State law, and the need for immediate expenditures and action to
house individuals, along with the 120 -day time constraint to open a secular homeless
facility, each precludes use of the full, formal competitive bid process. Instead, the Public
Works Director will use an expedited process to achieve the best value for the City under
these pressing circumstances.
1327335.1
Agenda Report — Resolution Authorizing Conversion of City -Owned Structures to Homeless
Shelter and Declaring the Necessity of Immediate Expenditure of Public Money
November 6, 2018
Page 5
As noted above, approval of the emergency exemption will require approval of Resolution
18-84 with at least four (4) Council members in support.
CEQA:
For the reasons explained in the attached Notice of Determination (Attachment C), the
proposed project is within the scope of the Environmental Impact Statement /
Environmental Impact Report for the Disposal and Reuse of Marine Corps Air Station
(MCAS) Tustin, and the Supplemental Environmental Impact Report thereto which
analyzed the impacts of the Tustin Legacy Specific Plan. No further environmental review
is required. (Public Resources Code section 21166; CEQA Guidelines sections 15168,
15162.) In the alternative, and in an abundance of caution, the proposed project is
exempt from CEQA pursuant to the Class 1, Class 3, and Class 32 exemptions for the
reasons explained in the attached Notice of Exemption (Attachment B).
Attachments:
A. Resolution 18-76
B. CEQA Notice of Exemption
C. CEQA Notice of Determination
D. 2017 Point In Time Count Report — City of Tustin
E. Martin v. Boise (Ninth Circuit court decision)
F. Resolution 18-84
1327335.1
Resolution No. 18-76
Page 1 of 3
ATTACHMENT A
RESOLUTION NO. 18-76
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF TUSTIN
AUTHORIZING CONVERSION OF CITY-OWNED STRUCTURES INTO A
SHELTER FOR UNSHELTERED INDIVIDUALS
The City Council of the City of Tustin finds:
WHEREAS, the most recent Point in Time Count found that 69 persons within the
City of Tustin are homeless and living without shelter;
WHEREAS, the City of Tustin has found in Resolution 18-75 that the health and
safety of unsheltered persons in the City is threatened by a lack of shelter;
WHEREAS, the City has declared that a “shelter crisis” pursuant to Government
Code § 8698.2 exists in the City of Tustin and has authorized the City’s participation in
the Homeless Emergency Aid Program set forth as part of SB 850 and the 2018-2019
Budget Act (Chapter 48, Statutes of 2018);
WHEREAS, the City of Tustin owns structures located at the corner of Redhill and
Valencia Avenues (street address 15445 Lansdowne Road) (the “Site”) that until recently
housed the South Orange County Community College District for their Advanced
Technology Education Park (“ATEP”);
WHEREAS, the Site is within Planning Area 1 of the Tustin Specific Plan at the
corner of Lansdowne and Valencia Avenue. . Along with Planning Area 3, Planning Area
1 in the Specific Plan supports the accommodation of emergency shelters, transitional
housing, supportive housing, and community care facilities;
WHEREAS, the Site is located directly across the street from the existing Village
of Hope, a successful facility which, among other services, currently provides medical and
dental services to homeless individuals on a secular basis;
WHEREAS, as a result of the Site’s proximity to existing services, its land use
designation and the size, facilities and layout of the former ATEP buildings, and reduced
shelter operational expenses by utilizing a City-owned facility, the City is in a position to
quickly, efficiently and cost-effectively convert the former ATEP facility into a homeless
shelter;
WHEREAS, by converting the existing City-owned structures at the former ATEP
Site into a shelter will enable the City to comply with the timeline and other terms of the
Federal Court settlement, which requires the City to establish a secular homeless facility
within 120 days;
Resolution No. 18-76
Page 2 of 3
NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of Tustin:
(1) that the City-owned Site be converted for interim use for a secular shelter for
homeless individuals in accordance with the Federal Court settlement in Orange County
Catholic Worker et al v Orange County et al, USDC, CD.Cal. Case No. 8:18-cv-00155
DOC;
(2) that the use shall be interim until such time as a long-term homeless facility in
a different location is open and available for use;
(3) that the City Manager or his designee are authorized to take all actions as
necessary or appropriate to implement this direction;
PASSED AND ADOPTED at a regular meeting of the City Council of the City of
Tustin held on the 6th day of November, 2018.
ELWYN A. MURRAY
Mayor
ATTEST:
______________________
ERICA N. YASUDA
City Clerk
Resolution No. 18-76
Page 3 of 3
STATE OF CALIFORNIA )
COUNTY OF ORANGE ) SS
CITY OF TUSTIN )
I, Erica N. Yasuda, City Clerk and ex-officio Clerk of the City Council of the City of Tustin,
California, do hereby certify that the whole number of the members of the City Council is five;
that the above and foregoing Resolution No. 18-76 was duly and regularly passed and
adopted at a regular meeting of the City Council held on the 6th day of November, 2018 by
the following vote:
COUNCILPERSONS AYES:
COUNCILPERSONS NOES:
COUNCILPERSONS ABSTAINED:
COUNCILPERSONS ABSENT:
ERICA N. YASUDA
City Clerk
NOTICE OF EXEMPTION
1353834.1
To: Office of Planning and Research 1400 Tenth Street, Room 121 Sacramento, CA 95814
From: City of Tustin Community Development Department 300 Centennial Way Tustin, CA 92780
County Clerk County of County ofOrange12 Civic Center Plaza, Room 101Santa Ana, CA 92701
Project Title:
Resolution of the City Council Of The City Of Tustin Authorizing Conversion of City-Owned
Structures Into A Shelter For Unsheltered Individuals And Declaring The Necessity Of The
Immediate Expenditure Of Public Money to Convert City-Owned Structures Pursuant to Public
Contract Code § 20168; And Delegating Authority To Order Action In Furtherance Of Such
Conversion Pursuant To Public Contract Code § 22050(B)(1) (Resolution 18-76)
Project Location - Specific:
15445 Lansdowne Road, Tustin, CA 92782, County of Orange (Cross-street: Valencia Avenue)
Project Location - City: Tustin Project Location - County: County of Orange
Description of Nature, Purpose, and Beneficiaries of Project:
The conversion of an existing City-owned facility located at 15445 Lansdowne Road, Tustin, CA
92782 (the corner of Valencia Avenue and Redhill Avenue) to an at least 50-bed shelter per Federal
Court settlement.
Name of Public Agency Approving Project: City of Tustin
Name of Project Applicant: City of Tustin
Exempt Status: (check one)
Ministerial (Sec. 21080(b)(1); 15268);
Declared Emergency (Sec. 21080(b)(3); 15269(a));
Emergency Project (Sec. 21080(b)(4); 15269(b)(c));
Categorical Exemption. State type and section number: Class 1 (Existing Facility); Class
3 (New Construction/Conversion); Class 32 (Infill Exemption)
Statutory Exemptions. State code
number:
Attachment B
NOTICE OF EXEMPTION
1353834.1
Reasons why the project is exempt:
CEQA's Class 1 Exemption applies to the operation, repair, maintenance, permitting, leasing,
licensing, or minor alteration of existing public or private facilities involving negligible or no
expansion of a use beyond the use existing at the time of the lead agency's CEQA determination.
(CEQA Guidelines, § 15301.) Here, existing City-owned structures will be modified and used as
shelter for the homeless. These structures were previously used for educational purposes. As a
result, the proposed project calls for the operation and minor alteration of existing public facilities
involving negligible expansion of the existing use, and the project is exempt pursuant to the Class
1 exemption.
CEQA’s Class 3 exemption applies to the construction and location of limited numbers of new,
small facilities or structures and the installation of small new equipment and facilities in small
structures. (CEQA Guidelines § 15303.) The exemption also applies to the conversion of existing
small structures from one use to another when only small modifications are made in the exterior.
The examples listed in this exemption include a broad range of structures including, without
limitation, the construction or conversion of up to three single family residences in urban areas, up
to four commercial buildings not exceeding 10,000 square feet in urban areas, and accessory water
main, sewage and other utility extensions of reasonable length to support such construction. The
existing structures already include restrooms and a kitchen. Additional, minor modifications of
the interior of the existing structures will be required to convert the structures to be used as shelter
for the homeless. As a result, the proposed project is exempt pursuant to the Class 3 exemption.
CEQA’s Class 32 infill exemption to projects that meet the following conditions:
● The project is consistent with the applicable General Plan designation and all
applicable General Plan policies as well as with applicable zoning designation and
regulations;
● The proposed undertaking will occur within the city limits on a project site of not
more than five acres that is substantially surrounded by urban uses;
● The project site has no value as habitat for endangered, rare, or threatened species;
● The approval of the project would not result in any significant effects relating to
traffic, noise, air quality, or water quality; and,
● The site can be adequately served by all required utilities and public services.
(CEQA Guidelines § 15332.)
Here, the proposed project will be located within Planning Area 1 of the Tustin Legacy
Specific Plan, which is contemplated in the City’s General Plan. The proposed shelter is a
permitted use in this location and is consistent with all applicable General Plan and
Specific Plan policies. The project site is located within the City, and is approximately
14,700 square feet in size on a 1.03 acres site. The project site is surrounded by: Tustin
Family Campus, a women and children’s shelter, to the north; Redhill Avenue and
industrial uses to the west; Valencia Avenue and the Village of Hope Orange County
Rescue Mission to the south; and a parking lot and planned park to the east. The project
site is developed with existing structures and has no value as habitat for endangered, rare,
or threatened species. The project site can be converted to house the homeless with
minimal modifications over a short period of time, and thus would not result in any
NOTICE OF EXEMPTION
1353834.1
significant construction impacts. The operation of the shelter is anticipated to generate
minimal traffic trips, far less than the previous educational use, and will be subject to all
applicable City regulations regarding noise and water quality. As the site was previously
operated as an educational facility, the site is and can be adequately served by all required
utilities and public services. On this basis, the proposed project is exempt pursuant to the
Class 32 exemption.
Lead Agency Contact Person: Jeffrey C. Parker
Area Code/Telephone/Extension: (714) 573-3012
_____________________________________________
Title: Community Development Director
Date: _______________
If filed by applicant:
1. Attach document of exemption finding.
2. Has a Notice of Exemption been filed by the public agency approving the project? Yes
No
Signature: Signed by the Lead Agency Signed by the Applicant
Attachment C
NOTICE OF DETERMINATION
TO: Orange County Clerk Recorder
County of Orange
12 Civic Center Plaza, Room 101
Santa Ana, CA 92701-0238
FROM: City of Tustin (Applicant)
300 Centennial Way
Tustin, CA 92780
SUBJECT: Filing Notice of Determination in compliance with Section 21108 or 21152 of the
Public Resources Code.
State Clearinghouse Number: 94071005, 1994071005
Project Title:
Resolution of the City Council Of The City Of Tustin Authorizing Conversion of City -Owned
Structures Into A Shelter For Unsheltered Individuals And Declaring The Necessity Of The
Immediate Expenditure Of Public Money to Convert City -Owned Structures Pursuant to Public
Contract Code § 20168; And Delegating Authority To Order Action In Furtherance Of Such
Conversion Pursuant To Public Contract Code § 22050(B)(1) (Resolution 18-76)
Project Location (include county):
15445 Lansdowne Road, Tustin, CA 92782, County of Orange (Cross -street: Valencia Avenue)
Project Description:
The conversion of an existing City -owned facility located at 15445 Lansdowne Road, Tustin, CA
92782 (the corner of Valencia Avenue and Redhill Avenue) to an at least 50 -bed shelter per Federal
Court settlement.
CEQA Determination:
The City, as lead agency, prepared the Environmental Impact Statement / Environmental Impact
Report for the Disposal and Reuse of Marine Corps Air Station (MCAS) Tustin ("EIR"). The
EIR was certified on January 16, 2001. The EIR analyzed the environmental consequences of
the reuse of MCAS Tustin per the MCAS Tustin Specific Plan/Reuse Plan. The MCAS Tustin
Specific Plan proposed, and the EIR analyzed, a multi-year planned urban re -use project for over
1,500 acres referred to as the Tustin Legacy.
The MCAS Tustin Specific Plan was amended several times, and, in 2017, was substantially
updated as the "Tustin Legacy Specific Plan." The Tustin Legacy Specific Plan changed the mix
and layout of uses in the Specific Plan Area. Among other things, the Specific Plan
1353833.1
contemplated that a number of homeless services would be provided within the Specific Plan
Area, including emergency shelters, transitional housing, and community care facilities.
The environmental impacts of the Tustin Legacy Specific Plan were analyzed in a Supplemental
Environmental Impact Report ("Supplemental EIR") which concluded that the changes to the
Tustin Legacy Specific Plan would not result in any new significant environmental impacts or a
substantial increase in the severity of a previously identified significant impact. The
Supplemental EIR was certified on July 18, 2017.
The proposed project is a subsequent activity within the scope of the EIR and the Supplemental
EIR. The proposed project will convert an existing City -owned facility into an at least 50 -bed
homeless shelter per Federal Court settlement. The project will be located within Planning Area
1 of the Tustin Legacy Specific Plan. Planning Area 1, along with Planning Area 3, supports the
accommodation of emergency shelters, transitional housing, and community care facilities. The
impacts of the Tustin Legacy Specific Plan were analyzed in the EIR and the Supplemental EIR.
Based on the foregoing, the City has determined that: (a) the project is within the scope of the
EIR and the Supplemental EIR; (b) there are no substantial changes in the project requiring
major revisions of the EIR or Supplemental EIR due to the involvement of new significant
environmental effects or a substantial increase in the severity of previously identified significant
effects; (c) there are no substantial changes with respect to the circumstances under which the
project is being undertaken which will require major revisions of the EIR or Supplemental EIR
due to the involvement of new significant environmental effects or a substantial increase in the
severity of previously identified effects; and (d) there is no new information of substantial
importance, which was not known and could not have been known with the exercise of
reasonable diligence at the time the EIR or Supplemental EIR were certified showing that: (i) the
project will have one or more significant effects not discussed in the EIR or Supplemental EIR;
(ii) significant effects previously examined will be substantially more severe than shown in the
EIR or Supplemental EIR; (iii) mitigation measures or alternatives previously found not feasible
would in fact be feasible, and would substantially reduce one or more significant effects of the
project, but the mitigation measures or alternatives have not been adopted; or (iv) mitigation
measures or alternatives considerably different from those analyzed in the EIR or Supplemental
EIR would substantially reduce one or more significant effects on the environment, but the
mitigation measures or alternatives have not been adopted. Accordingly, the District has
determined that no further environmental review is required. (Public Resources Code § 21166;
CEQA Guidelines §§ 15168, 15162.)
The City is contemporaneously filing a Notice of Exemption regarding this project.
This is to advise that the City of Tustin (lead agency) has approved the above-described project on
November 6, 2018 and has made the following determinations regarding the above-described
proj ect:
1. The project will not result in any new significant impacts or a substantial increase in the
severity of previously identified significant impacts.
1353833.1
2. An EIR and Supplemental EIR was prepared pursuant to the provisions of CEQA. The
proposed project is within the scope of the EIR and Supplemental EIR.
3. Mitigation Measures were made a condition of approval of the project analyzed in the EIR
and Supplemental EIR.
4. A mitigation reporting or monitoring plan was adopted for the project analyzed in the EIR
and Supplemental EIR.
5. A Statement of Overriding Considerations was adopted for the project analyzed in the EIR
and Supplemental EIR.
6. Findings were made pursuant to the provisions of CEQA for the project analyzed in the EIR
and Supplemental EIR.
This is to certify that the EIR, the Supplemental EIR, and record of project approval are available to
the general public at: City of Tustin, Community Development, 300 Centennial Way, Tustin, CA
92780.
Lead Agency Contact Person: Jeffrey C. Parker
Area Code/Telephone/Extension: (714) 573-3012
Signature: Date:
Title: Community Development Director
® Signed by Lead Agency
Date received for filing at OPR:
® Signed by Applicant
1353833.1
TUSTIN
BUILDING OUP, fUTII€rJ.
HONOILING OUR PUT
CITY OF TUSTIN
COMMUNITY DEVELOPMENT DEPARTMENT
330 Centennial Way, Tustin, CA 92780
(794) 573-3100
ENVIRONMENTAL ANALYSIS CHECKLIST
For Projects With Previously Certified/Approved Environmental Documents:
Environmental Impact Statement/Environmental Impact Report (EISIEIR)
for the Disposal and Reuse of Marine Corps Air Station (MCAS) Tustin
The following checklist takes into consideration the preparation of an environmental document prepared at an
earlier stage of the proposed project. This checklist evaluates the adequacy of the earlier document pursuant
to Section 15162 and 15168 of the California Environmental Quality Act (CEQA) Guidelines.
A. BACKGROUND
Project Title:
Lead Agency:
Lead Agency Contact Person:
Phone
Project Location:
Project Sponsor's Name and Address:
General Plan Land Use Designation:
Zoning Designation:
Project Description:
Surrounding Land Uses and Setting
1�Pae
t�
Emergency Homeless Shelter Facility
City of Tustin
300 Centennial Way
Tustin, California 92780
Jeffrey C. Parker
(714) 573-3012
15445 Lansdowne Road
City of Tustin, 300 Centennial Way, Tustin, CA 92780
Tustin Legacy Specific Plan
Tustin Legacy Specific Plan (SP 1)
Convert an existing City -owned facility into an emergency homeless
shelter facility providing at least 50 beds as per the Court
Settlement and associated services for men, women and families.
North: Tustin Family Campus facility
East: Lansdowne Road, existing parking lot and future Veteran's
Park
South: Valencia Avenue and Orange County Rescue Mission 1
Village of Hope
West: Red Hill Avenue, office and industrial uses
Previous Environmental Documentation: On January 16, 2001, the City of Tustin certified the program Final
Environmental Impact Statement/Environmental Impact Report (FEIS/EIR) for the reuse and disposal of MCAS
Tustin. On December 6, 2004, the City Council adopted Resolution No. 04-76 approving a Supplement to the
FEIS/EIR for the extension of Tustin Ranch Road between Walnut Avenue and the future alignment of Valencia
north loop road. On April 3, 2006, the City Council adopted Resolution No. 06-43 approving an Addendum to
the FEIS/EIR and, on May 13, 2013, the City Council adopted Resolution No. 13-32 approving a Second
Addendum to the FEIS/EIR.
On July 5, 2017, the City Council adopted Resolution No. 17-23 approving a second Supplement to the FEIS/EIR.
The FEIS/EIR, along with its addendums and supplements, is a program EIR under the California Environmental
Quality Act (CEQA). The FEIS/EIR, addendums and supplemental considered the potential environmental
impacts associated with development on the former Marine Corps Air Station, Tustin.
Other public agencies whose approval is required:
❑ Orange County Fire Authority ❑ City of Santa Ana
❑ Orange County EMA District ❑ City of Irvine
❑ South Coast Air Quality Management ❑ Other
❑ Orange County Health Care Agency
Have California Native American tribes traditionally and culturally affiliated with the project area requested
consultation pursuant to Public Resources Code section 21080.3.1? If so, has consultation begun?
PP�
2 1 P a g e
B. ENVIRONMENTAL FACTORS POTENTIALLY AFFECTED:
The environmental factors checked below would be potentially affected by this project, involving at least
one Impact that is a "Potentially Significant Impact" as indicated by the checklist on the following pages.
❑ Aesthetics
❑ Biological Resources
❑ Greenhouse Gas Emissions
❑ Land Use 1 Planning
❑ Population 1 Housing
❑ Transportation/Traffic
❑ Mandatory Findings of
Significance
DETERMINATION:
On the basis of this initial evaluation:.
❑ Agriculture and Forestry
Resources
❑ Cultural Resources
❑ Hazards & Hazardous
Materials
❑ Mineral Resources
[] Public Services
❑ Tribal Cultural Resources
❑ Air Quality
❑ Geology /Soils
❑ Hydrology f Water Quality
0 Noise
❑ Recreation
❑ Utilities 1 Service Systems
❑ I find that the proposed project COULD NOT have a significant effect on the environment, and a
NEGATIVE DECLARATION will be prepared.
❑ I find that although the proposed project could have a significant effect on the environment, there will not
be a significant effect in this case because revisions in the project have been made by or agreed to by
the project proponent. A MITIGATED NEGATIVE DECLARATION will be prepared.
❑ I find that the proposed project MAY have a significant effect on the environment, and an
ENVIRONMENTAL IMPACT REPORT is required.
❑ I find that the proposed project MAY have a "potentially significant impact" or "potentially significant
unless mitigated" impact on the environment, but at least one effect 1) has been adequately analyzed in
an earlier document pursuant to applicable legal standards, and 2) has been addressed by mitigation
measures based on the earlier analysis as described on attached sheets. An ENVIRONMENTAL
IMPACT REPORT is required, but it must analyze only the effects that remain to be addressed.
I find that, although the proposed project could have a significant effect on the environment, because all
potentially significant effects (a) have been analyzed adequately in an earlier EIR or NEGATIVE
DECLARATION pursuant to applicable standards, and (b) have been avoided or mitigated pursuant to
that earlier EIR or NEGATIVE DECLARATION, including revisions or mitigation measures that are
imposed upon the proposed project, nothing further is required.
Signature:
Printed Name: 16A / X67,—,V
3 1 P a g e
Title:
ll9Ld10!P0441J7- 2�12eC7-0t<
Date: OA�l
For:
C. EVALUATION OF ENVIRONMENTAL IMPACTS: See Attached.
1) A brief explanation is required for all answers except "No Impact" answers that are adequately supported by
the information sources a lead agency cites in the parentheses following each question. A "No Impact" answer
is adequately supported if the referenced information sources show that the impact simply does not apply to
projects like the one involved (e.g., the project falls outside'a fault rupture zone). A "No Impact" answer should
be explained where it is based on project -specific factors as well as general standards (e.g., the project will
not expose sensitive receptors to pollutants, based on a project -specific screening analysis).
2) All answers must take account of the whole action involved, including off-site as well as on-site, cumulative
as well as project -level, indirect as well as direct, and construction as well as operational impacts.
3) Once the lead agency has determined that a particular physical impact may occur, then the checklist answers
must indicate whether the impact is potentially significant, less than significant with mitigation, or less than
significant. "Potentially Significant Impact" is appropriate if there is substantial evidence that an effect may be
significant. If there are one or more "Potentially Significant Impact" entries when the determination is made,
an EIR is required.
4) "Negative Declaration: Less Than Significant With Mitigation Incorporated" applies where the incorporation of
mitigation measures has reduced an effect from "Potentially Significant Impact" to a "Less Than Significant
Impact." The lead agency must describe the mitigation measures, and briefly explain how they reduce the
effect to a less than significant level (mitigation measures from "Earlier Analyses," as described in (5) below,
may be cross-referenced).
5) Earlier analyses maybe used where, pursuant to the tiering, program EIR, or other CEQA process, an effect
has been adequately analyzed in an earlier EIR or negative declaration. Section 15063(c)(3)(D). In this case,
a brief discussion should identify the following:
a. Earlier Analysis Used. Identify and state where they are available for review.
b. Impacts Adequately Addressed. Identify which effects from the above checklist were within the scope
of and adequately analyzed in an earlier document pursuant to applicable legal standards, and state
whether such effects were addressed by mitigation measures based on the earlier analysis.
c. Mitigation Measures. For effects that are "Less than Significant with Mitigation Measures
Incorporated," describe the mitigation measures which were incorporated or refined from the earlier
document and the extent to which they address site-specific conditions for the project.
6) Lead agencies are encouraged to incorporate into the checklist references to information sources for potential
impacts (e.g., general plans, zoning ordinances). Reference to a previously prepared or outside document
should, where appropriate, include a reference to the page or pages where the statement is substantiated.
7) Supporting Information Sources: A source list should be attached, and other sources used or individuals
contacted should be cited in the discussion.
8) This is only a suggested form, and lead agencies are free to use different formats; however, lead agencies
should normally address the questions from this checklist that are relevant to a project's environmental effects
in whatever format is selected.
9) The explanation of each issue should identify:
a. the significance criteria or threshold, if any, used to evaluate each question; and
b. the mitigation measure identified, if any, to reduce the impact to less than significance
4 1 P a g e
111
INITIAL STUDY
Issues: Potentially Less Than
No Change
Significant Significant
From
Impact With Mitigation
Previous
Incorporated
Analysis
AESTHETICS.
Would the project:
a) Have a substantial adverse ❑ ❑
effect on a scenic vista?
b) Substantially damage scenic ❑ El
resources, including, but not
limited to, trees, rocks
outcroppings, and historic
buildings within a state scenic
highway?
C) Substantially degrade the ❑
existing visual character or
quality of the site and its
surroundings?
d) Create a new source of ❑ El El
substantial light or glare which
would adversely affect day or
nighttime views in the area?
AGRICULTURE AND FOREST RESOURCES.
In determining whether impacts to agricultural
resources are significant environmental effects,
lead agencies may refer to the California
Agricultural Land Evaluation and Site
Assessment Model (1997) prepared by the
California Dept. of Conservation as an optional
model to use in assessing impacts on agriculture
and farmland. In determining whether impacts to
forest resources, including timberland, are
significant environmental effects, lead agencies
may refer to information compiled by the
California Department of Forestry and Fire
Protection regarding the state's inventory of forest
land, including the Forest and Range Assessment
Project and the Forest Legacy Assessment
project; and forest carbon measurement
methodology provided in Forest Protocols
adopted by the California Air Resources Board.
5 1 P a g e
Issues:
Would the project:
a) Convert Prime Farmland, Unique
Farmland, or Farmland of Statewide
Importance (Farmland), as shown on
the maps prepared pursuant to the
Farmland Mapping and Monitoring
Program of the California Resources
Agency, to non-agricultural use?
b) Conflict with existing zoning for
agricultural use, or a Williamson Act
contract?
C) Conflict with existing zoning for, or cause
rezoning of, forest land (as defined in Public
Resources Code section 12220(g)),
timberland (as defined by Public Resources
Code section 4526), or timberland zoned
Timberland Production (as defined by
Government Code section 51104(g))?
d) Result in the loss of forest land or conversion
of forest land to non -forest use?
e) Involve other changes in the existing
environment which, due to their location or
nature, could result in conversion of
Farmland, to non-agricultural use or
conversion of forest land to non -forest use?
III. AIR QUALITY.
Where available, the significance criteria
established by the applicable air quality
management or air pollution control district
may be relied upon to make the following
determinations.
Would the project:
a) Conflict with or obstruct
implementation of the applicable air
quality plan?
61 Page
Potentially Less Than
No Change
Significant Significant
From
Impact With Mitigation
Previous
Incorporated
Analysis
❑ ❑
❑ ❑
❑ ❑
❑ ❑ ED
❑ ❑ ED
Issues: Potentially Less Than
No Change
Significant Significant With
From
Impact Mitigation
Previous
Incorporated
Analysis
b) Violate any air quality standard or ❑ ❑
contribute substantially to an
existing or projected air quality
violation?
C) Result in a cumulatively ❑ ❑
considerable net increase of any
criteria pollutant for which the
project region is non -attainment
under an applicable federal or
state ambient air quality standard
(including releasing emissions
which exceed quantitative
thresholds for ozone precursors)?
d) Expose sensitive receptors to ❑ ❑ ❑
substantial pollutant
concentrations?
e) Create objectionable odors ❑ ❑ 0
affecting a substantial number of
people?
BIOLOGICAL RESOURCES.
Would the project:
a) Have a substantial adverse effect,
either directly or through habitat
modifications, on any species
identified as a candidate, sensitive, or
special status species in local or
regional plans, policies, or regulations,
or by the California Department of
Fish and Game or U.S. Fish and
Wildlife Service?
b) Have a substantial adverse effect on
any riparian habitat or other sensitive
natural community identified in local or
regional plans, policies, regulations, or
by the California Department of Fish
and Game or U.S. Fish and Wildlife
Service?
7j Page
❑■
El
El
►1
0
V
Issues: Potentially Less Than
No Change
Significant Significant With
From
Impact Mitigation
Previous
Incorporated
Analysis
C) Have a substantial adverse effect on ❑ ❑
federally protected wetlands as
defined by Section 404 of the Clean
Water Act (including, but not limited
to, marsh, vernal pool, coastal, etc.)
through direct removal, filling,
hydrological interruption, or other
means?
d) Interfere substantially with the ❑ ❑
movement of any native resident or
migratory fish or wildlife species or
with established native resident or
migratory wildlife corridors, or impede
the use of native wildlife nursery
sites?
e) Conflict with any local policies or ❑ El
ordinances protecting biological
resources, such as a tree preservation
policy or ordinance?
f) Conflict with the provisions of an ❑ ❑
adopted Habitat Conservation Plan,
Natural Community Conservation
Plan, or other approved local,
regional, or state habitat conservation
plan?
CULTURAL RESOURCES.
Would the project:
a) Cause a substantial adverse change ❑ ❑
in the significance of a historical
resource as defined in § 15064.5?
b) Cause a substantial adverse change ❑ ❑
in the significance of an
archaeological resource pursuant to
§ 15064.5?
C) Directly or indirectly destroy a unique ❑ El
paleontological resource or site or
unique geologic feature?
8 1 P a g e
Issues:
Potentially
Less Than
No Change
Significant
Significant With
From
Impact
Mitigation
Previous
Incorporated
Analysis
d) Disturb any human remains,
El
E
including those interred outside of
formal cemeteries?
VI. GEOLOGY AND SOILS.
Would the project:
a) Expose people or structures to potential
substantial adverse effects, including the
risk of loss, injury or death involving:
i. Rupture of a known earthquake
❑
E]
fault, as delineated on the most
recent Alquist-Priolo Earthquake
Fault Zoning Map issued by the
State Geologist for the area or
based on other substantial
evidence of a known fault? Refer
to Division of Mines and Geology
Special Publication 42.
ii. Strong seismic ground shaking?
❑
❑
M
iii. Seismic -related ground failure,
❑
❑
including liquefaction?
iv. Landslides?
❑
❑
b) Result in substantial soil erosion or
❑
❑
ED
the loss of topsoil?
C) Be located on a geologic unit or soil
E
❑
that is unstable, or that would become
unstable as a result of the project,
and potentially result in on- or off-site
landslide, lateral spreading,
subsidence, liquefaction or collapse?
d) Be located on expansive soil, as
❑
❑
defined in Table 18-1-B of the
Uniform Building Code (1994),
creating substantial risks to life or
property?
91 Page
Issues: Potentially Less Than No Change
Significant Significant With From
Impact Mitigation Previous
Incorporated Analysis
e) Have soils incapable of
adequately supporting the use of
septic tanks or alternative waste
water disposal systems where
sewers are not available for the
disposal of waste water?
VII. GREENHOUSE GAS EMISSIONS.
Would the project:
a) Generate greenhouse gas emissions,
either directly or indirectly, that may have
a significant impact on the environment?
b) Conflict with an applicable plan, policy or
regulation adopted for the purpose of
reducing the emissions of greenhouse
gases?
VIII. HAZARDS AND HAZARDOUS
MATERIALS.
Would the project:
a) Create a significant hazard to the
public or the environment through
the routine transport, use, or
disposal of hazardous materials?
b) Create a significant hazard to the
public or the environment through
reasonably foreseeable upset and
accident conditions involving the
release of hazardous materials
into the environment?
C) Emit hazardous emissions or
handle hazardous or acutely
hazardous materials, substances,
or waste within one-quarter mile
of an existing or proposed
school?
101Page
❑ ❑
❑ ❑
❑ ❑
❑ ❑
❑ ❑
❑ ❑
All
a
b
O
Issues:
d) Be located on a site which is
included on a list of hazardous
materials sites compiled pursuant
to Government Code section
65962.5 and, as a result, would it
create a significant hazard to the
public or the environment?
e) For a project located within an
airport land use plan or, where
such a plan has not been
adopted, within two miles of a
public airport or public use airport,
would the project result in a safety
hazard for people residing or
working in the project area?
f) For a project within the vicinity of
a private airstrip, would the
project result in a safety hazard
for people residing or working in
the project area?
g) Impair implementation of or
physically interfere with an
adopted emergency response
plan or emergency evacuation
plan?
h) Expose people or structures to a
significant risk of loss, injury or
death involving wildland fires,
including where wildlands are
adjacent to urbanized areas or
where residences are intermixed
with wildlands?
111 Page
Potentially
Significant
Impact
❑■
❑■
❑■
El
X
Less Than
Significant With
Mitigation
Incorporated
❑■
El
El
■❑
No Change
From
Previous
Analysis
L4
►�I
►1
101
►1
IJ
Issues: Potentially Less Than
No Change
Significant Significant
From
Impact With Mitigation
Previous
Incorporated
Analysis
HYDROLOGY AND WATER QUALITY.
Would the project:
a) Violate any water quality standards ❑
or waste discharge requirements?
b) Substantially deplete groundwater El El 19
supplies or interfere substantially
with groundwater recharge such that
there would be a net deficit in aquifer
volume or a lowering of the local
groundwater table (e.g., the
production rate of pre-existing nearby
wells would drop to a level which
would not support existing land uses
or planned uses for which permits
have been granted)?
C) Substantially alter the existing ❑ E
drainage pattern of the site or area,
including through the alteration of the
course of a stream or river, in a
manner which would result in
substantial erosion or siltation on- or
off-site?
d) Substantially alter the existing
drainage pattern of the site or area,
including through the alteration of the
course of a stream or river, or
substantially increase the rate or
amount of surface runoff in a manner
which would result in flooding on -or
off-site?
e) Create or contribute runoff water E
which would exceed the capacity of
existing or planned stormwater
drainage systems or provide
substantial additional sources of
polluted runoff?
f) Otherwise substantially degrade
water quality?
121 Page
231 Page
Issues:
Potentially
Less Than
No Change
Significant
Significant
From
Impact
With Mitigation
Previous
Incorporated
Analysis
g)
Place housing within a 100 -year
❑
❑
flood hazard area as mapped on a
federal Flood Hazard Boundary or
Flood Insurance Rate Map or other
flood hazard delineation map?
h)
Place within a 100 -year flood hazard
❑
❑
area structures that would impede or
redirect flows?
i)
Expose people or structures to a
❑
❑
ED
significant risk of loss, injury or death
involving flooding, including flooding
as a result of the failure of a levee or
dam?
j)
Inundation by seiche, tsunami, or
❑
❑
mudflow?
X. LAND
USE AND PLANNING.
Would
the project:
a)
Physically divide an established
❑
❑
ED
community?
b)
Conflict with any applicable land
❑
❑
use plan, policy, or regulation of
an agency with jurisdiction over
the project (including, but not
limited to the general plan,
specific plan, local coastal
program, or zoning ordinance)
adopted for the purpose of
avoiding or mitigating an
environmental effect?
C)
Conflict with any applicable
❑
❑
habitat conservation plan or
natural community conservation
plan?
231 Page
Issues:
XI. MINERAL RESOURCES.
Would the project:
a) Result in the loss of availability
of a known mineral resource
that would be of value to the
region and the residents of the
state?
b) Result in the loss of availability
of a locally -important mineral
resource recovery site
delineated on a local general
plan, specific plan or other land
use plan?
XII. NOISE.
No Change
Would the project result in:
a)
Exposure of persons to or
Previous
generation of noise levels in
Analysis
excess of standards
established in the local general
plan or noise ordinance, or
applicable standards of other
agencies?
b)
Exposure of persons to or
generation of excessive
groundborne vibration or
groundborne noise levels?
C)
A substantial permanent
increase in ambient noise
levels in the project vicinity
above levels existing without
the project?
d)
A substantial temporary or
periodic increase in ambient
noise levels in the project
vicinity above levels existing
without the project?
141 Page
Potentially Less Than
No Change
Significant Significant
From
Impact With Mitigation
Previous
Incorporated
Analysis
❑ ❑
❑ ❑
❑ ❑
❑ ❑
❑ ❑ ED
❑ ❑
Issues: Potentially Less Than
No Change
Significant Significant
From
Impact With Mitigation
Previous
Incorporated
Analysis
e) For a project located within an ❑ ❑
airport land use plan or, where
such a plan has not been
adopted, within two miles of a
public airport or public use
airport, would the project
expose people residing or
working in the project area to
excessive noise levels?
f) For a project within the vicinity El ❑
of a private airstrip, would the
project expose people residing
or working in the project area
to excessive noise levels?
XIII. POPULATION AND HOUSING.
Would the project:
a) Induce substantial population El ❑
growth in an area, either directly
(for example, by proposing new
homes and businesses) or
indirectly (for example, through
extension of road or other
infrastructure)?
b) Displace substantial numbers of ❑ ❑
existing housing, necessitating the
construction of replacement
housing elsewhere?
C) Displace substantial numbers of ❑ ❑
people, necessitating the
construction of replacement
housing elsewhere?
151Page
Issues:
XIV. PUBLIC SERVICES.
Would the project:
a) Result in substantial adverse
physical impacts associated with the
provision of new or physically altered
governmental facilities, need for new
or physically altered governmental
facilities, the construction of which
could cause significant
environmental impacts, in order to
maintain acceptable service ratios,
response times or other performance
objectives for any of the public
services:
i. Fire protection?
ii. Police protection?
iii. Schools?
iv. Parks?
v. Other public facilities?
XV. RECREATION.
Would the project:
a) Increase the use of existing
neighborhood and regional parks
or other recreational facilities such
that substantial physical
deterioration of the facility would
occur or be accelerated?
b) Does the project include
recreational facilities or require
the construction or expansion of
recreational facilities which have
an adverse physical effect on the
environment?
161 Page
Potentially
Significant
Impact
■❑
Less Than
Significant
With Mitigation
Incorporated
❑■
No Change
From
Previous
Analysis
Me
❑
❑
❑
❑
❑
❑
❑
❑
❑
❑
M.
❑ ❑
❑ ❑ IR
Issues: Potentially Less Than
No Change
Significant Significant
From
Impact With
Previous
Mitigation
Analysis
Incorporated
XVI. TRANSPORTATION /TRAFFIC.
Would the project:
a) Conflict with an applicable plan, ❑ ❑
ordinance or policy establishing
measures of effectiveness for the
performance of the circulation system,
taking into account all modes of
transportation including mass transit
and non -motorized travel and relevant
components of the circulation system,
including but not limited to
intersections, streets, highways and
freeways, pedestrian and bicycle
paths, and mass transit?
b) Conflict with an applicable congestion ❑ E
management program, including, but
not limited to level of service
standards and travel demand
measures, or other standards
established by the county congestion
management agency for designated
roads or highways?
C) Result in a change in air traffic El ❑
patterns, including either an
increase in traffic levels or a
change in location that results
in substantial safety risks?
d) Substantially increase hazards ❑ ❑ ED
due to a design feature (e.g.,
sharp curves or dangerous
intersections) or incompatible
uses (e.g., farm equipment)?
e) Result in inadequate ❑ ❑
emergency access?
171 Page
Issues:
f) Conflict with adopted policies, plans,
or programs regarding public transit,
bicycle, or pedestrian facilities, or
otherwise decrease the performance
or safety of such facilities?
XVII. TRIBAL CULTURAL RESOURCES.
Would the project cause a substantial adverse
change in the significance of a tribal cultural
resource, defined in Public Resources Code
section 21074 as either a site, feature, place,
cultural landscape that is geographically defined
in terms of the size and scope of the landscape,
sacred place, or object with cultural value to a
California Native American tribe, and that is:
a) Listed or is eligible for listing in the
California Register of Historical
Resources, or in a local register of
historical resources as defined in
Public Resources Code section
5020.1(k).
b) A resource determined by the
lead agency, in its discretion and
supported by substantial
evidence, to be significant
pursuant to criteria set forth in
subdivision (c) of Public
Resources Code section 5024.1.
In applying the criteria set forth in
subdivision (c) of Public
Resources Code section 5024.1,
the lead agency shall consider the
significance of the resource to a
California Native American tribe.
181 Page
Potentially
Less Than
No Change
Significant
Significant
From
Impact
With
Previous
Mitigation
Analysis
Incorporated
❑
❑
■❑
El
►1
►0
Issues: Potentially Less Than
No Change
Significant Significant
From
Impact With Mitigation
Previous
Incorporated
Analysis
XVIII. UTILITIES AND SERVICE SYSTEMS.
Would the project:
a) Exceed wastewater treatment ❑ ❑
requirements of the applicable
Regional Water Quality Control
Board?
b) Require or result in the ❑ ❑
construction of new water or
wastewater treatment facilities or
expansion of existing facilities, the
construction of which could cause
significant environmental effects?
C) Require or result in the ❑ ❑
construction of new storm water
drainage facilities or expansion of
existing facilities, the construction
of which could cause significant
environmental effects?
d) Have sufficient water supplies El
available to serve the project from
existing entitlements and
resources, or are new or
expanded entitlements needed?
e) Result in a determination by the El ❑
wastewater treatment provider
which serves or may serve the
project that it has adequate
capacity to serve the project's
projected demand in addition to
the provider's existing
commitments?
f) Be served by a landfill with
sufficient permitted capacity to
accommodate the project's solid
waste disposal needs?
g) Comply with federal, state, and ❑ ❑
local statutes and regulations
related to solid waste?
191 Page
Issues:
XVIII. MANDATORY FINDINGS OF SIGNIFICANCE.
a) Does the project have the potential to
degrade the quality of the
environment, substantially reduce the
habitat of a fish or wildlife species,
cause a fish or wildlife population to
drop below self-sustaining levels,
threaten to eliminate a plant or
animal community, reduce the
number or restrict the range of a rare
or endangered plant or animal or
eliminate important examples of the
major periods of California history or
prehistory?
b) Does the project have impacts
that are individually limited, but
cumulatively considerable?
("Cumulatively considerable"
means that the incremental
effects of a project are
considerable when viewed in
connection with the effects of past
projects, the effects of other
current project, and the effects of
probable future projects.)
C) Does the project have
environmental effects which will
cause substantial adverse effects
on human beings, either directly
or indirectly?
Potentially
Significant
Impact
■❑
FE -1
9
Less Than
Significant
With Mitigation
Incorporated
El
El
EN
No Change
From
Previous
Analysis
./
►/
a
Note: Authority cited: Sections 21083 and 21083.05, Public Resources Code. Reference: Section 65088.4, Gov.
Code; Sections 21080(c), 21080.1, 21080.3, 21082.1, 21083, 21083.05, 21083.3, 21093, 21094, 21095, and
21151, Public Resources Code; Sundstrom v. County of Mendocino, (1988) 202 Cal.App.3d 296; Leonoff v.
Monterey Board of Supervisors, (1990) 222 Cal.App.3d 1337; Eureka Citizens for Responsible Govt. v. City of
Eureka (2007) 147 Cal.AppAth 357; Protect the Historic Amador Waterways v. Amador Water Agency (2004)
116 Cal.App.4th at 1109; San Franciscans Upholding the Downtown Plan v. City and County of San Francisco
(2002)102 Cal.App.4th 656.
201 Page
EVALUATION OF ENVIRONMENTAL IMPACTS
City of Tustin Emergency Homeless Shelter
15445 Lansdowne Road
On January 16, 2001, the City of Tustin certified the Program Final Environmental Impact
Statement/Environmental Impact Report (FEIS/EIR) for the reuse and disposal of Marine Corp Air
Station (MCAS) Tustin. On December 6, 2004, the City Council adopted Resolution No. 04-76
approving a Supplement to the FEIS/EIR for the extension of Tustin Ranch Road between Walnut
Avenue and the future alignment of Valencia North Loop Road. On April 3, 2006, the City Council
adopted Resolution No. 06-43 approving an Addendum to the FEIS/EIR. On May, 13, 2013, the
City Council adopted Resolution No. 13-32 approving a second Addendum to the FEIS/EIR. On
July 5, 2017, the City Council adopted Resolution No. 17-23 approving a second Supplement to
the FEIS/EIR in conjunction with Specific Plan Amendment 2016-01 (Ordinance 1482) for the
Tustin Legacy Specific Plan (formerly MCAS Tustin Specific Plan). The FEIS/EIR, Addenda and
Supplement (the "Prior Environmental Review") considered the potential environmental impacts
associated with development on the former Marine Corps Air Station, Tustin pursuant to the
California Environmental Quality Act ("CEQA").
The FEIS/EIR, Addenda and Supplement analyzed the environmental consequences of the Navy
disposal and local community reuse of the MCAS Tustin site per the Reuse Plan/MCAS Tustin
Specific Plan (referred to in this document as the Specific Plan). The CEQA analysis also
analyzed the environmental impacts of certain "Implementation Actions" that the City of Tustin
and City of Irvine must take to implement the MCAS Tustin Specific Plan.
The Tustin Legacy Specific Plan and the FEIS/EIR analyzed a multi-year development period for
the planned urban reuse project (Tustin Legacy). When individual discretionary activities within
the Specific Plan are proposed, the lead agency is required to examine the individual activities to
determine if their effects were fully analyzed in the FEIS/EIR. The agency can approve the
activities as being within the scope of the project covered by the FEIS/EIR. If the agency finds
that pursuant to Sections 15162, 15163, 15164, and 15183 of the CEQA Guidelines no new
effects would occur, nor would a substantial increase in the severity of previously identified
significant effects occur, then no supplemental or subsequent EIR is required.
Tustin Legacy is located in central Orange County and approximately 40 miles southeast of
downtown Los Angeles. Tustin Legacy is that portion of the former MCAS Tustin within the City
of Tustin corporate boundaries. Owned and operated by the Navy and Marine Corps for nearly
60 years, approximately 1,585 gross acres of property at MCAS Tustin were determined surplus
to federal government needs, and MCAS Tustin was officially closed in July 1999. The majority
of the former MCAS Tustin lies within the southern portion of the City of Tustin. The remaining
approximately 73 acres lies within the City of Irvine. Tustin Legacy is in close proximity to four
major freeways: the Costa Mesa (SR -55), Santa Ana (1-5), Laguna (SR -133) and San Diego (I-
405). Tustin Legacy is also served by the west leg of the Eastern Transportation Corridor (SR
261). The major roadways bordering Tustin Legacy include Red Hill Avenue on the northwest,
Edinger Avenue on the northeast, Harvard Avenue on the southeast, and Barranca Parkway on
the southwest. Jamboree Road and Tustin Ranch Roach transect the Property. John Wayne
Airport is located approximately three miles to the south and a Metrolink Commuter Rail Station
is located immediately to the northeast providing daily passenger service to employment centers
in Orange, Los Angeles, Riverside, and San Diego counties.
1358357.1
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PROJECT LOCATION
The proposed project site is comprised of an approximately 1 -acre property located within the Tustin
Legacy Specific Plan boundaries on the west portion of Planning Area 1-J. The project site is
currently improved with five (5) buildings previously used as a community college satellite campus.
The eastern portion of Planning Area 1-J is a parking lot, which served the community college
operations. The project site is bounded by Lansdowne Road to the east, Valencia Avenue to the
south, Red Hill Avenue to the west, and the Tustin Family Campus to the north within Neighborhood
A of the Tustin Legacy Specific Plan.
PROJECT DESCRIPTION
The proposed project involves converting an existing City -owned facility into an emergency
homeless shelter facility including at least 50 beds as per the Court Settlement, administration
building, support services and food services (the `Project"). The homeless shelter facility is being
implemented to address a federal court mandate to provide an emergency shelter within the City
of Tustin. While the court order would require the accommodation of 50 shelter beds, the proposed
facility will accommodate at least 50 beds as per the Court Settlement. The facility would be
available for men, women and families. The proposed Project would occupy four (4) of the five
(5) existing buildings on the project site, and also includes the addition of a new modular restroom
and shower building.
EVALUATION OF ENVIRONMENTAL IMPACTS
An Environmental Analysis Checklist has been completed and it has been determined that this
Project is within the scope of the Prior Environmental Review and that pursuant to Public
Resources Code Section 21166 and Title 14 California Code of Regulations Sections 15162 and
15168(c), there are no substantial changes in the project requiring major revisions to the Prior
Environmental Review, no substantial changes with respect to the circumstances under which the
project is being undertaken which will require major revisions to the Prior Environmental Review,
or any new information which was not known and could not have been known at the time the Prior
Environmental Review was certified showing that: (1) the project will have any new significant
effects; (2) significant effects previously examined will be substantially more severe; (3) mitigation
measures or alternatives previously determined to be infeasible will now be feasible and would
substantially reduce one or more significant effects of the project but the City declined to adopt
the mitigation measure or alternative; or (4) mitigation measures or alternatives considerably
different from those previously analyzed would substantially reduce one or more significant effects
on the environment, but the City declined to adopt the mitigation measure or alternative.
Accordingly, no additional environmental documentation is required by CEQA.
The Environmental Analysis Checklist follows
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AESTHETICS — Would the project:
a) Have a substantial adverse effect on a scenic vista?
b) Substantially damage scenic resources, including, but not limited to, trees, rock
outcroppings, and historic buildings within a state scenic highway?
c) Substantially degrade the existing visual character or quality of the site and its
surroundings?
d) Create a new source of substantial light or glare, which would adversely affect
day or nighttime views in the area?
The proposed Project is for the establishment and operation of an emergency homeless
shelter facility within existing buildings, and the addition of a new restroom/shower
building. The new restroom/shower building will be located between two existing buildings
along the north side of the property and will be minimally visible from the public right-of-
way.
The project is not located on a scenic highway nor will it affect a scenic vista. The original
FEIR/EIS evaluated aesthetic impacts of redevelopment of the property and the proposed
project would result in similar visual changes as those previously analyzed. The only
significant visual impact identified in the FEIS/EIR was the potential loss of both blimp
hangars which would change existing foreground, middle ground, and background views.
The existing buildings would remain and be converted to communal sleep rooms, laundry
rooms, a community room, and administration and resource offices. The facility activities
would primarily take place inside the buildings and within the fenced areas of the project
site. The proposed shelter use would be similar with other adjacent shelter uses within
Planning Area 1 and 3. The proposed project will result in no substantial changes to the
environmental impacts previously evaluated in the Prior Environmental Review.
Based on the foregoing, none of the conditions identified in CEQA Guidelines Section
15162 that would trigger the need to prepare a subsequent or supplemental EIR or other
environmental document to evaluate Project impacts or mitigation measures exist with
regard to aesthetics. Specifically, there have not been: (1) changes to the Project that
require major revisions of the Prior Environmental Review due to the involvement of new
significant environmental effects or a substantial increase in the severity of previously
identified effects; (2) substantial changes with respect to the circumstances under which
the Project is undertaken that require major revisions of the Prior Environmental Review
due to the involvement of new significant environmental effects or a substantial increase
in the severity of previously identified effects; or (3) the availability of new information of
substantial importance relating to significant effects or mitigation measures or alternatives
that were not known and could not have been known when the Prior Environmental
Review was certified as completed.
Mitigatior✓Monitoring Required: No new impacts nor substantially more severe aesthetic
impacts would result from the adoption and implementation of the Project; therefore, no
new or revised mitigation measures are required for aesthetics and visual quality. No
refinements related to the Project are necessary to the FEIS/EIR mitigation measures and
no new mitigation measures are required. Mitigation measures were adopted by the Tustin
City Council in the Prior Environmental Review.
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Sources: Field Observations
Submitted Plans
FEIS/EIR for Disposal and Reuse of MCAS Tustin (Pages 3-58 through 3-67)
Tustin Legacy Specific Plan (Pages 3-6 through 3-10, 3-56 through 3-76)
Tustin General Plan
AGRICULTURE RESOURCES: In determining whether impacts to agricultural
resources are significant environmental effects, lead agencies may refer to the
California Agricultural Land Evaluation and Site Assessment Model (1997) prepared
by the California Dept. of Conservation as an optional model to use in assessing
impacts on agriculture and farmland. In determining whether impacts to forest
resources, including timberland, are significant environmental effects, lead
agencies may refer to information compiled by the California Department of
Forestry and Fire Protection regarding the state's inventory of forest land, including
the Forest and Range Assessment Project and the Forest Legacy Assessment
project; and forest carbon measurement methodology provided in Forest Protocols
adopted by the California Air Resources Board. Would the project:
a) Convert Prime Farmland, Unique Farmland, or Farmland of Statewide
Importance (Farmland), as shown on the maps prepared pursuant to the
Farmland Mapping and Monitoring Program of the California Resources Agency,
to non-agricultural use?
b) Conflict with existing zoning for agricultural use or a Williamson Act contract?
c) Conflict with existing zoning for, or cause rezoning of, forest land (as defined in
Public Resources Code section 12220(g)), timberland (as defined by Public
Resources Code section 4526), or timberland zoned Timberland Production (as
defined by Government Code section 51104(g))?
d) Result in the loss of forest land or conversion of forest land to non -forest use?
e) Involve other changes in the existing environment which, due to their location
or nature, could result in conversion of Farmland to non-agricultural use or
conversion of forest land to non -forest use?
The proposed Project is for the establishment and operation of an emergency homeless
shelter facility within existing buildings and the addition of a new restroom/shower building.
The proposed homeless shelter facility will not convert Prime Farmland, Unique Farmland
or Farmland of Statewide Importance, nor will it conflict with existing zoning for agricultural
use or a Williamson Act contract or involve or cause changes in the environment resulting
in conversion of farmland to nonagricultural use.
Based on the foregoing, none of the conditions identified in CEQA Guidelines Section
15162 that would trigger the need to prepare a subsequent or supplemental EIR or other
environmental document to evaluate Project impacts or mitigation measures exist with
regard to agricultural resources. Specifically, there have not been: (1) changes to the
Project that require major revisions of the Prior Environmental Review due to the
involvement of new significant environmental effects or a substantial increase in the
severity of previously identified effects; (2) substantial changes with respect to the
circumstances under which the Project is undertaken that require major revisions of the
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Prior Environmental Review due to the involvement of new significant environmental
effects or a substantial increase in the severity of previously identified effects; or (3) the
availability of new information of substantial importance relating to significant effects or
mitigation measures or alternatives that were not known and could not have been known
when the Prior Environmental Review was certified as completed.
Mitigation/Monitoring Required. Specific mitigation measures have been adopted by the
Tustin City Council in certifying the Prior Environmental Review. However, the Prior
Environmental Review also concluded that Reuse Plan related impacts to farmland were
significant and unavoidable. A Statement of Overriding Consideration for the FEIS/EIR was
adopted by the Tustin City Council on January 16, 2001.
Sources: Field Observations
FEIS/EIR for Disposal and Reuse of MCAS Tustin (Page 3-83 through 3-87,
4-109 through 114) and Addendums (Page 5-3 through 5-8)
Tustin Legacy Specific Plan/Reuse Plan (Pages 3-6 through 3-10)
Tustin General Plan
III. AIR QUALITY: Where available, the significance criteria established by the
applicable air quality management or air pollution control district may be relied
upon to make the following determinations. Would the project:
a) Conflict with or obstruct implementation of the applicable air quality plan?
b) Violate any air quality standard or contribute substantially to an existing or
projected air quality violation?
c) Result in a cumulatively considerable net increase of any criteria pollutant for
which the project region is non -attainment under an applicable federal or state
ambient air quality standard (including releasing emissions that exceed
quantitative thresholds for ozone precursors)?
d) Expose sensitive receptors to substantial pollutant concentrations?
e) Create objectionable odors affecting a substantial number of people?
The proposed Project is for the establishment and operation of an emergency homeless
shelter facility within existing buildings and the addition of a new restroom/shower building.
As documented in the Prior Environmental Review, the Project is part of a larger reuse project
at Tustin Legacy that was projected to result in air quality impacts that cannot be fully
mitigated. A Statement of Overriding Consideration for the FEIS/EIR was adopted by the
Tustin City Council on January 16, 2001. The project site is an existing, former community
college classroom facility. The Project calls for the conversion of the college use to an
emergency homeless shelter facility with at least 50 beds as per the Court Settlement, and
would involve a similar number of individuals using the property. Therefore, no significant
impact beyond what was analyzed in the adopted Prior Environmental Review is anticipated.
Based on the foregoing, none of the conditions identified in CEQA Guidelines Section 15162
that would trigger the need to prepare a subsequent or supplemental EIR or other
environmental document to evaluate Project impacts or mitigation measures exist with regard
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to air quality. Specifically, there have not been: (1) changes to the Project that require major
revisions of the Prior Environmental Review due to the involvement of new significant
environmental effects or a substantial increase in the severity of previously identified effects;
(2) substantial changes with respect to the circumstances under which the Project is
undertaken that require major revisions of the Prior Environmental Review due to the
involvement of new significant environmental effects or a substantial increase in the severity
of previously identified effects; or (3) the availability of new information of substantial
importance relating to significant effect or mitigation measures or alternatives that was not
known and could not have been known when the Prior Environmental Review was certified
as complete.
MitigadoMMonitoring Required: Specific mitigation measures have been adopted by the
Tustin City Council in certifying the Prior Environmental Review. However, the Prior
Environmental Review also concluded that Reuse Plan related operational air quality impacts
were significant and unavoidable. A Statement of Overriding Consideration for the FEIS/EIR
was adopted by the Tustin City Council on January 16, 2001.
Sources: Field Observations
Submitted Plans
FEIS/EIR for Disposal and Reuse of MCAS Tustin (Pages 3-143 through153,
4-207 through 4-230 and pages 7-41 through 7-42)
FSEIR for Tustin Legacy Specific Plan Amendment (Pages 5.1-1 through 5.1-
32)
Tustin Legacy Specific Plan (Pages 3-6 through 3-10)
Table 2, 1993 South Coast Air Quality Management District, CEQA Air
Quality Handbook
Tustin General Plan
IV. BIOLOGICAL RESOURCES: - Would the project:
a) Have a substantial adverse effect, either directly or through habitat
modifications, on any species identified as a candidate, sensitive, or special
status species in local or regional plans, policies, or regulations, or by the
California Department of Fish and Game or U.S. Fish and Wildlife Service?
b) Have a substantial adverse effect on any riparian habitat or other sensitive
natural community identified in local or regional plans, policies, regulations, or
by the California Department of Fish and Game or U.S. Fish and Wildlife Service?
c) Have a substantial adverse effect on federally protected wetlands as defined by
Section 404 of the Clean Water Act (including, but not limited to, marsh, vernal
pool, coastal, etc.) through direct removal, filling, hydrological interruption, or
other means?
d) Interfere substantially with the movement of any native resident or migratory
fish or wildlife species or with established native resident or migratory wildlife
corridors, or impede the use of native wildlife nursery sites?
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e) Conflict with any local policies or ordinances protecting biological resources,
such as a tree preservation policy or ordinance?
f) Conflict with the provisions of an adopted Habitat Conservation Plan, Natural
Community Conservation Plan, or other approved local, regional or state habitat
conservation plan?
The proposed Project is for the establishment and operation of an emergency homeless
shelter facility within existing buildings and the addition of a new restroom/shower building.
The project site is currently improved with five buildings and contains no natural biological
resources or habitat. The Prior Environmental Review found that implementation of the
Reuse Plan/MCAS Tustin Specific Plan would not result in impacts to federally listed
threatened or endangered plant or animal species. The proposed project is within the scope
of development considered with the analysis of the Prior Environmental Review. The Prior
Environmental Review determined that implementation of the Reuse Plan and MCAS Tustin
Specific Plan (including the proposed project) could impact the southwestern pond turtle
and/or have an impact on jurisdictional waters/wetlands. The overall Specific Plan area has
been surveyed, and turtles were captured and moved off the site to another location as
directed and overseen by the Califomia Department of Fish and Game in 2004. Since that
time, all former Marine Corps base drainage channels in the area were removed and graded
by the former owner of the property with the required 401, 404 and 1601 permits issued by
Fish and Game, Army Corps of Engineers, and Regional Water Quality Control Board.
Consequently, the proposed project would not affect the southwestern pond turtle or have an
impact on jurisdictional waters or wetlands. No substantial change is expected from the
analysis previously completed in the FEIS/EIR for MCAS Tustin.
Based on the foregoing, none of the conditions identified in CEQA Guidelines Section 15162
that would trigger the need to prepare a subsequent or supplemental EIR or other
environmental document to evaluate Project impacts or mitigation measures exist with regard
to biological resources. Specifically, there have not been: (1) changes to the Project that
require major revisions of the Prior Environmental Review due to the involvement of new
significant environmental effects or a substantial increase in the severity of previously
identified effects; (2) substantial changes with respect to the circumstances under which the
Project is undertaken that require major revisions of the Prior Environmental Review due to
the involvement of new significant environmental effects or a substantial increase in the
severity of previously identified effects; or (3) the availability of new information of substantial
importance relating to significant effect or mitigation measures or altematives that was not
known and could not have been known when the FEIS/EIR was certified as complete.
Mitigation/Monitoring Required: No mitigation is required
Sources: Field Observations
FEIS/EIR for Disposal and Reuse of MCAS Tustin (Pages 3-75 through 3-82,
4-103 through 4-108, and 7-26 through 7-27), and Addendum pages 5-28 to
5-39
Tustin Legacy Specific Plan (Pages 3-6 to 3-10)
Tustin General Plan
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V. CULTURAL RESOURCES: - Would the project:
a) Cause a substantial adverse change in the significance of a historical resource
as defined in §15064.5?
b) Cause a substantial adverse change in the significance of an archaeological
resource pursuant to § 15064.5?
c) Directly or indirectly destroy a unique paleontological resource or site or unique
geologic feature?
d) Disturb any human remains, including those interred outside formal
cemeteries?
The proposed project is for the establishment and operation of an emergency homeless
shelter facility within existing buildings and the addition of a new restroom/shower building.
No grading activities would be required and improvements would be limited within the
existing, developed campus area.
The former MCAS Tustin contained two National Register listed blimp hangars, and
several concrete or asphalt blimp landing pads that were considered historically or
culturally significant pursuant to the federal Section 106 process conducted at the site.
Through the Section 106 process, these facilities were identified as part of a discontiguous
Historic District. The Navy, State Office of Historic Preservation (SHPO), and Advisory
Council executed a Memorandum of Agreement (attached as part of the EIS/EIR) with City
of Tustin and County of Orange as invited signatories that allowed for the destruction of the
blimp pads. The EIS/EIR noted that it may not be financially feasible to retain the blimp
hangars and there may be unavoidable significant impacts. A Statement of Overriding
Consideration for the FEIS/EIR was adopted by the Tustin City Council on January 16, 2001.
The mitigation program for the hangars was fully implemented by the City. No portion of the
previously existing blimp landing pads nor the existing blimp hangars are located within the
project site boundary.
Numerous archaeological surveys have been conducted at the former MCAS Tustin site. In
1988, the State Office of Historic Preservation (SHPO) provided written concurrence that all
open spaces on MCAS Tustin had been adequately surveyed for archaeological resources.
One recorded archaeological site (CA -ORA -381) was identified within the Specific Plan
area; however, as reported in the FEIS/EIR, this site was destroyed prior to 1971 (when
archaeological surveys were first conducted at MCAS Tustin) during construction of two
large concrete tanks. The FEIS/EIR indicated that CA -ORA -381 was the only recorded
archaeological site within the Specific Plan area. It is possible that previously unidentified
buried archaeological or paleontological resources within the project site could be
significantly impacted by grading and construction activities. With the inclusion of mitigation
measures that require construction monitoring, potential impacts to cultural resources can be
reduced to a level of less than significant.
The proposed project is within the scope of development considered with the analysis of the
Prior Environmental Review. No substantial change is expected from the analysis previously
completed in the FEIS/EIR for MCAS Tustin. None of the mentioned' resources will be
affected. Based on the foregoing, none of the conditions identified in CEQA Guidelines
Section 15162 that would trigger the need to prepare a subsequent or supplemental EIR or
other environmental document to evaluate Project impacts or mitigation measures with
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regard to cultural resources. Specifically, there have not been: (1) changes to the Project that
require major revisions of the Prior Environmental Review due to the involvement of new
significant environmental effects or a substantial increase in the severity of previously
identified effects; (2) substantial changes with respect to the circumstances under which the
Project is undertaken that require major revisions of the Prior Environmental Review due to
the involvement of new significant environmental effects or a substantial increase in the
severity of previously identified effects; or (3) the availability of new information of substantial
importance relating to significant effect or mitigation measures or alternatives that was not
known and could not have been known when the Prior Environmental Review was certified
as complete.
Mitigation/Monitoring Required: Mitigation measures have been adopted by the Tustin City
Council in the Prior Environmental Review.
Sources: Field Observations
FEIS/EIR for Disposal and Reuse of MCAS Tustin (Pages 3-68 through 3-74,
4-93 through 4-102 and 7-24 through 7-26)
Tustin Legacy Specific Plan/Reuse Plan (Pages 3-6 to 3-10).
Tustin General Plan
VI. GEOLOGY AND SOILS: — Would the project:
a) Expose people or structures to potential substantial adverse effects, including
the risk of loss, injury, or death involving:
• Rupture of a known earthquake fault, as delineated on the most recent
Alquist-Priolo Earthquake Fault Zoning map, issued by the State Geologist
for the area or based on other substantial evidence of a known fault? Refer
to Division of Mines and Geology Special Publication 42.
• Strong seismic ground shaking?
• Seismic -related ground failure, including liquefaction?
• Landslides?
b) Result in substantial soil erosion or the loss of topsoil?
f) Be located on a geologic unit or soil that is unstable, or that would become
unstable as a result of the project, and potentially result in on- or off-site
landslide, lateral spreading, subsidence, liquefaction or collapse?
d) Be located on expansive soil, as defined in Table 18-1-B of the Uniform Building
Code (1994), creating substantial risks to life or property?
e) Have soils incapable of adequately supporting the use of septic tanks or
alternative wastewater disposal systems where sewers are not available for the
disposal of wastewater?
The proposed Project is for the establishment and operation of an emergency homeless
shelter facility within existing buildings and the addition of a new restroom/shower building.
No grading activities would be required and improvements would be limited within the
existing, developed campus area.
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The Prior Environmental Review indicates that impacts to soils and geology resulting from
implementation of the Reuse Plan and MCAS Tustin Specific Plan would "include non-
seismic hazards (such as local settlement, regional subsidence, expansive soils, slope
instability, erosion, and mudflows) and seismic hazards (such as surface fault displacement,
high-intensity ground shaking, ground failure and lurching, seismically induced settlement,
and flooding associated with dam failure." The Prior Environmental Review additionally
found that the entire Specific Plan area has a high probability of liquefaction and expansive
soils. However, the Prior Environmental Review for MCAS Tustin also concluded that
compliance with state and local regulations and standards, along with established
engineering procedures and techniques, would avoid the creation of significant impacts
related to such hazards.
Based on the foregoing, none of the conditions identified in CEQA Guidelines Section
15162 that would trigger the need to prepare a subsequent or supplemental EIR or other
environmental document to evaluate Project impacts or mitigation measures exist with
regard to geology and soils. Specifically, there have not been: (1) changes to the Project
that require major revisions of the Prior Environmental Review due to the involvement of
new significant environmental effects or a substantial increase in the severity of previously
identified effects; (2) substantial changes with respect to the circumstances under which
the Project is undertaken that require major revisions of the Prior Environmental Review
due to the involvement of new significant environmental effects or a substantial increase
in the severity of previously identified effects; or (3) the availability of new information of
substantial importance relating to significant effects or mitigation measures or alternatives
that were not known and could not have been known when the Prior Environmental
Review was certified as completed.
Mitigation/Monitoring Required: As identified in the Prior Environmental Review, compliance
with existing rules and regulations would avoid the creation of potential impacts. No
mitigation is required.
Sources: Field Observations
FEIS/EIR for Disposal and Reuse of MCAS Tustin (Pages 3-88 through 3-97,
4-115 through 4-123 and 7-28 through 7-29) and Amendment Pages 5-46
through 5-49
Tustin Legacy Specific Plan (Pages 3-6 to 3-10)
Tustin General Plan
VII. GREENHOUSE GAS EMISSIONS: —Would the project:
a) Generate greenhouse gas emissions, either directly or indirectly, that may have
a significant impact on the environment?
b) Conflict with an applicable plan, policy or regulation adopted for the purpose of
reducing the emissions of greenhouse gases?
The proposed project is for the establishment and operation of an emergency homeless
shelter facility within existing buildings and the addition of a new restroom/shower building.
These existing buildings currently generate greenhouse gas emissions from natural gas
used for energy, heating and cooking; electricity usage; vehicle trips associated with each
land use; operation areas sources such as landscaping equipment and consumer cleaning
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products from water demand, wastewater generation and solid waste generation. The
Prior Environmental Review did not evaluate greenhouse gas (GHG) emissions impacts
because, prior to SB 97, which went into effect January 1, 2010, it was not included in the
CEQA Guidelines Appendix G checklist and the City of Tustin did not have adopted
thresholds at the time of preparation. The City prepared the Final Supplemental EIR (FSEIR),
which was adopted in June 2017 in conjunction with the Tustin Legacy Specific Plan
Amendment. The FSEIR analysis of the Tustin Legacy Specific Plan determined that
implementation of the Plan would have generated GHG emissions at levels that would
exceed the thresholds established by South Coast Air Quality Management District, The
FSEIR concluded that implementation of the Tustin Legacy Specific Plan would contribute
direct GHG emissions from onsite area sources and vehicle trips, and indirect GHG
emissions through offsite energy production required for onsite activities, water use and
waste disposal.
Mitigation/Monitoring Required: Mitigation measures have been adopted by the Tustin City
Council in the Prior Environmental Review.
Sources: Field Observations
FSEIR for Tustin Legacy Specific Plan Amendment (Pages 5.2-1 through
Pages 5.2-29)
Tustin Legacy Specific Plan (Pages 3-6 through 3-10)
Supplement to the FEIS/EIR in conjunction with Specific Plan Amendment
2016-01 (Ordinance 1482)
Tustin General Plan
VIII. HAZARDS AND HAZARDOUS MATERIALS: —Would the project:
a) Create a significant hazard to the public or the environment through the routine
transport, use or disposal of hazardous materials?
b) Create a significant hazard to the public or the environment through reasonable
foreseeable upset and accident conditions involving the release of hazardous
materials into the environment?
c) Emit hazardous emissions or handle hazardous or acutely hazardous materials,
substances, or waste within one-quarter mile of an existing or proposed school?
d) Be located on a site which is included on a list of hazardous materials sites
compiled pursuant to Government code Section 65962.5 and, as a result, would
it create a significant hazard to the public or the environment?
e) For a project located within an airport land use plan or, where such a plan has
not been adopted, within two miles or a public airport or public use airport,
would the project result in a safety hazard for people residing or working in the
project area?
f) For a project within the vicinity of a private airstrip, would the project result in a
safety hazard for people residing or working in the project area?
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g) Impair implementation of or physically interfere with an adopted emergency
response plan or emergency evacuation plan?
h) Expose people or structures to a significant risk of loss, injury or death
involving wildland fires, including where wildlands are adjacent to urbanized
areas or where residences are intermixed with wildlands?
The proposed project is for the establishment and operation of an emergency homeless
shelter facility within existing buildings and the addition of a new restroom/shower building.
The facility will provide temporary emergency shelter to homeless individuals. Hazardous
materials used during either construction or operation of the Project, if any, would be subject
to federal, state and local regulations and thus would not create a significant hazard to the
public through the transport, use, or disposal of hazardous materials, nor are there
reasonably foreseeable upset and accident conditions at the property. Compliance with all
federal, state and local regulations concerning handling and use of household hazardous
substances will reduce potential impacts to below a level of significance. No substantial
change is expected from the analysis previously completed in the Prior Environmental
Review for MCAS Tustin.
In addition, the project site is located within the boundaries of the Airport Environs Land Use
Plan; however, it is at least four (4) miles from John Wayne Airport, and does not lie within a
flight approach or departure corridor and thus does not pose an aircraft -related safety hazard
for future residents or workers. The project site is also not located in a wildland fire danger
area.
Based on the foregoing, none of the conditions identified in CEQA Guidelines Section
15162 that would trigger the need to prepare a subsequent or supplemental EIR or other
environmental document to evaluate Project impacts or mitigation measures exist with
regard to hazards and hazardous materials. Specifically, there have not been: (1) changes
to the Project that require major revisions of the Prior Environmental Review due to the
involvement of new significant environmental effects or a substantial increase in the
severity of previously identified effects; (2) substantial changes with respect to the
circumstances under which the Project is undertaken that require major revisions of the
Prior Environmental Review due to the involvement of new significant environmental
effects or a substantial increase in the severity of previously identified effects; or (3) the
availability of new information of substantial importance relating to significant effects or
mitigation measures or alternatives that were not known and could not have been known
when the Prior Environmental Review was certified as completed.
Mitigation/Monitoring Required: As identified in the Prior Environmental Review, compliance
with existing rules and regulations would avoid the creation of potential impacts. No
mitigation is required.
Sources. Field Observation
FEIS/EIR for Disposal and Reuse of MCAS Tustin pages (3-106 through 3-
117, 4-130 through 4-138 and 7-30 through 7-31)
Tustin Legacy Specific Plan (Pages 3-6 through 3-10)
Finding of Suitability to Transfer (FOST), MCAS Tustin
Tustin General Plan.
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VIII. HYDROLOGY AND WATER QUALITY: -Would the project:
a) Violate any water quality standards or waste discharge requirements?
b) Substantially deplete groundwater supplies or interfere substantially with
groundwater recharge, such that there would be a net deficit in aquifer volume
or a lowering of the local groundwater table level (e.g., the production rate of
pre-existing nearby wells would drop to a level which would not support existing
land uses or planned uses for which permits have been granted)?
c) Substantially alter the existing drainage pattern of the site or area, including
through the alteration of the course of a stream or river, in a mannerwhich would
result in flooding on- or off-site?
d) Substantially alter the existing drainage pattern of the site or area, including
through the alteration of the course of a stream or river, or substantially increase
the rate or amount of surface runoff in a manner, which would result in flooding
on- or off-site?
e) Create or contribute runoff water which would exceed the capacity of existing
or planned storm water drainage systems or provide substantial additional
sources of polluted runoff?
f) Otherwise substantially degrade water quality?
g) Place housing within a 100 -year flood hazard area as mapped on a federal Flood
hazard Boundary of Flood Insurance Rate Map or other flood hazard delineation
map?
h) Place within a 100 -year flood hazard area structures, which would impede or
redirect flood flows?
I) Expose people or structures to a significant risk of loss, injury or death
involving flooding, including flooding as a result of the failure of a levee or dam?
j) Inundation by seiche, tsunami, or mudflow?
The proposed Project is for the establishment and operation of an emergency homeless
shelter facility within existing buildings and the addition of a new restroom/shower building.
The project would occupy an existing development and utilize the existing hydrology and
drainage improvements. No grading or alter alteration of existing pervious/impervious
surfaces would be required as a part of the Project. The proposed Project will also not
impact groundwater in the deep regional aquifer or shallow aquifer. The proposed Project
would not include groundwater removal or alteration of historic drainage patterns at the site.
No impacts to hydrology and water quality are anticipated for the proposed Project. The
Project is not located within a 100 -year flood area and will not expose people or structures to
a significant risk of loss, injury and death involving flooding as a result of the failure of a levee
or dam, nor is the proposed project susceptible to inundation by seiche, tsunami, or mudflow.
Construction operations, if any, would be required to comply with the Total Maximum Daily
Load (TMDL) for the Newport Bay watershed that requires compliance with the Drainage
Area Master Plan (DAMP) and National Pollution Discharge Elimination System (NPDES)
and the implementation of specific best management practices (BMPs). Compliance with
state and local regulations and standards, along with established engineering procedures
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and techniques, would avoid the creation of significant impacts related to such hazards.
Consequently, no substantial change is expected from the analysis previously completed in
the Prior Environmental Review for MCAS Tustin.
Based on the foregoing, none of the conditions identified in CEQA Guidelines Section
15162 that would trigger the need to prepare a subsequent or supplemental EIR or other
environmental document to evaluate Project impacts or mitigation measures exist with
regard to hydrology and water quality. Specifically, there have not been: (1) changes to
the Project that require major revisions of the Prior Environmental Review due to the
involvement of new significant environmental effects or a substantial increase in the
severity of previously identified effects; (2) substantial changes with respect to the
circumstances under which the Project is undertaken that require major revisions of the
Prior Environmental Review due to the involvement of new significant environmental
effects or a substantial increase in the severity of previously identified effects; or (3) the
availability of new information of substantial importance relating to significant effects or
mitigation measures or alternatives that were not known and could not have been known
when the Prior Environmental Review was certified as completed.
Mitigation/Monitoring Required: As identified in the Prior Environmental Review, compliance
with existing rules and regulations would avoid the creation of potential impacts. No
mitigation is required.
Sources: Field Observation
FEIS/EIR for Disposal and Reuse of MCAS Tustin (Pages 3-98 through 3-
105, 4124 through 4-129 and 7-29 through 7-30)
Tustin Legacy Specific Plan (Pages 3-6 through 3-10)
FEMA Flood Map: FIRM Panel 06059CO279J (Dec. 2, 2009)
Tustin General Plan
Fire Hazard Severity Zone Map (2011)
IX. LAND USE AND PLANNING: Would the project:
a) Physically divide an established community?
b) Conflict with any applicable land use plan, policy, or regulation of an agency
with jurisdiction over the project (including, but not limited, to the general plan,
specific plan, local coastal program, or zoning ordinance) adopted for the
purpose of avoiding or mitigating an environmental effect?
c) Conflict with any applicable habitat conservation plan or natural community
conservation plan?
The proposed Project is for the establishment and operation of an emergency homeless
shelter facility within existing buildings and the addition of a new restroom/shower building.
The City of Tustin has determined that the proposed emergency homeless shelter use is
a permitted use within Planning Area 1 in that the area is intended to accommodate
education and other government facilities including, without limitation, emergency and
transitional housing, public service operation, and public housing.
The City of Tustin is the controlling authority over implementation of the Specific Plan for the
former base, such as land use designations, zoning categories, recreation and open space
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areas, major arterial roadways, urban design, public facilities, and infrastructure systems.
The proposed project complies with Planning Area 1 -J's development standards as noted in
Sections 3.5.2 Table 3-1 of the Tustin Legacy Specific Plan. Compliance with state and local
regulations and standards would avoid the creation of significant land use and planning
impacts. Also, the proposed Project will not conflict with any habitat conservation plan or
natural community conservation plan. Consequently, no change is expected from the
analysis previously completed in the Prior Environmental Review for MCAS Tustin.
Based on the foregoing, none of the conditions identified in CEQA Guidelines Section
15162 that would trigger the need to prepare a subsequent or supplemental EIR or other
environmental document to evaluate Project impacts or mitigation measures exist with
regard to land use and planning. Specifically, there have not been: (1) changes to the
Project that require major revisions of the Prior Environmental Review due to the
involvement of new significant environmental effects or a substantial increase in the
severity of previously identified effects; (2) substantial changes with respect to the
circumstances under which the Project is undertaken that require major revisions of the
Prior Environmental Review due to the involvement of new significant environmental
effects or a substantial increase in the severity of previously identified effects; or (3) the
availability of new information of substantial importance relating to significant effects or
mitigation measures or alternatives that were not known and could not have been known
when the Prior Environmental Review was certified as completed.
Mitigation/Monitoring Required: The proposed project is consistent with the development
standards of the MCAS Tustin Specific Plan as identified by the adopted FEIS/EIR. No
mitigation is required.
Sources: Field Observation
FEIS/EIR for Disposal and Reuse of MCAS Tustin (Pages 3-3 to 3-17, 43 to
413 and 7-16 to 7-18)
FSEIR for Tustin Legacy Specific Plan Amendment (Page 5.3-1 through
Page 5.3-16)
Tustin Legacy Specific Plan (Pages 3-6 through 3-10)
Tustin General Plan
Use Determination 2018-02
X. MINERAL RESOURCES: Would the project:
a) Result in the loss of availability of a known mineral resource that would be a
value to the region and the residents of the state?
b) Result in the loss of availability of a locally important mineral resource recovery
site delineated on a local general plan, specific plan or other land use plan?
The proposed Project is for the establishment and operation of an emergency homeless
shelter facility within existing buildings and the addition of a new restroom/shower building.
Chapter 3.9 of the FEIS/EIR indicates that no mineral resources are known to occur
anywhere within the Reuse Plan area. The proposed Project, which calls for the conversion
of existing buildings and the addition of a new ancillary restroom/shower building, will not
result in the loss of mineral resources known to be on the site or identified as being present
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on the site by any mineral resource plans. Consequently, no substantial change is expected
from the analysis previously completed in the Prior Environmental Review for MCAS Tustin.
Based on the foregoing, none of the conditions identified in CEQA Guidelines Section
15162 that would trigger the need to prepare a subsequent or supplemental EIR or other
environmental document to evaluate Project impacts or mitigation measures exist with
regard to mineral resources. Specifically, there have not been: (1) changes to the Project
that require major revisions of the Prior Environmental Review due to the involvement of
new significant environmental effects or a substantial increase in the severity of previously
identified effects; (2) substantial changes with respect to the circumstances under which
the Project is undertaken that require major revisions of the Prior Environmental Review
due to the involvement of new significant environmental effects or a substantial increase
in the severity of previously identified effects; or (3) the availability of new information of
substantial importance relating to significant effects or mitigation measures or alternatives
that were not known and could not have been known when the FEIS/EIR, the
Supplemental or Addendums were certified as completed.
MitigationlMonitoring Required: No mitigation is required.
Sources: Field Observation
FEIS/EIR for Disposal and Reuse of MCAS Tustin (Page 3-91)
Tustin Legacy Specific Plan (Pages 3-6 through 3-10)
Tustin General Plan
XI. NOISE: Would the project result in:
a) Exposure of persons to or generation of noise levels in excess of standards
established in the local general plan or noise ordinance, or applicable standards
of other agencies?
b) Exposure of persons to or generation of excessive groundborne vibration or
groundborne noise levels?
c) A substantial permanent increase in ambient noise levels in the project vicinity
above levels existing without the project?
d) A substantial temporary or periodic increase in ambient noise levels in the
project vicinity above levels existing without the project?
e) For a project located within an airport land use plan or, where such a plan has
not been adopted, within two miles of a public airport or public use airport,
would the project expose people residing or working in the project area to
excessive noise levels?
f) For a project within the vicinity of a private airstrip, would the project expose
people residing or working in the project area to excessive noise levels?
The proposed Project is for the establishment and operation of an emergency homeless
shelterfacility within existing buildings and the addition of a new restroom/shower building.
Activities at the facility would generally occur inside the existing buildings and are subject
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to the City's Noise Ordinance. Compliance with adopted mitigation measures and state and
local regulations and standards will avoid significant impacts related to noise.
Based on the foregoing, none of the conditions identified in CEQA Guidelines Section
15162 that would trigger the need to prepare a subsequent or supplemental EIR or other
environmental document to evaluate Project impacts or mitigation measures exist with
regard to noise. Specifically, there have not been: (1) changes to the Project that require
major revisions of the Prior Environmental Review due to the involvement of new
significant environmental effects or a substantial increase in the severity of previously
identified effects; (2) substantial changes with respect to the circumstances under which
the Project is undertaken that require major revisions of the Prior Environmental Review
due to the involvement of new significant environmental effects or a substantial increase
in the severity of previously identified effects; or (3) the availability of new information of
substantial importance relating to significant effects or mitigation measures or alternatives
that were not known and could not have been known when the Prior Environmental
Review was certified as completed.
Mitigatior✓Monitoring Required: Mitigation measures have been adopted by the Tustin City
Council in the Prior Environmental Review.
Sources: Field Observation
Submitted Plans
FEIS/EIR for Disposal and Reuse of MCAS Tustin (Pages 3-154 to 3-162, 4-
231 to 4-243 and 7-42 to 7-43)
FSEIR for Tustin Legacy Specific Plan Amendment (Pages 5.4-1 through 5.4-
29)
Tustin Legacy Specific Plan (Pages 3-6 through 3-10).
Tustin General Plan
XII. POPULATION $ HOUSING: Would the project:
a) Induce substantial population growth in an area, either directly (for example, by
proposing new homes and businesses) or indirectly (for example, through
extension of roads or other infrastructure)?
b) Displace substantial numbers of existing housing, necessitating the
construction of replacement housing elsewhere?
c) Displace substantial numbers of people, necessitating the construction of
replacement housing elsewhere?
The proposed Project is for the establishment and operation of an emergency homeless
shelter facility within existing buildings and the addition of a new restroom/shower building.
The facility would have at least 50 beds as per the Court Settlement to accommodate
homeless individuals in Tustin. The Project calls for the conversion of existing buildings that
were formerly used as a college campus and thus would not result insubstantial population
growth or displace other residents.
Based on the foregoing, none of the conditions identified in CEQA Guidelines Section
15162 that would trigger the need to prepare a subsequent or supplemental EIR or other
environmental document to evaluate Project impacts or mitigation measures exist with
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regard to population and housing. Specifically, there have not been: (1) changes to the
Project that require major revisions of the Prior Environmental Review due to the
involvement of new significant environmental effects or a substantial increase in the
severity of previously identified effects; (2) substantial changes with respect to the
circumstances under which the Project is undertaken that require major revisions of the
Prior Environmental Review due to the involvement of new significant environmental
effects or a substantial increase in the severity of previously identified effects; or (3) the
availability of new information of substantial importance relating to significant effects or
mitigation measures or alternatives that were not known and could not have been known
when the Prior Environmental Review was certified as completed.
Mitigation/Monitoring Required: No mitigation is required.
Sources: Field Observations
FEIS/EIR for Disposal and Reuse of MCAS Tustin (Pages 3-18 to 3-34, 4-14
to 4-29 and 7-18 to 7-19)
FSEIR for Tustin Legacy Specific Plan Amendment (Pages 5.5-1 through 5.5-
16)
Tustin Legacy Specific Plan (Pages 3-6 through 3-10).
Tustin General Plan
XIII. PUBLIC SERVICES
a) Would the project result in substantial adverse physical impacts associated with
the provision of new or physically altered governmental facilities, need for new
or physically altered governmental facilities, the construction of which could
cause significant environmental impacts, in order to maintain acceptable
service ratios, response times, or other performance objectives for any of the
public services:
The proposed Project is for the establishment and operation of an emergency homeless
shelter facility within existing buildings and the addition of a new restroom/shower building.
The emergency homeless shelter will operate as a closed environment, with controlled
access and egress for facility patrons, staff and visitors affecting the following public service
areas:
Fire Protection. The proposed project will meet all applicable OCFA regulations to the
extent required by State law. The number of fire stations existing and planned in the area
surrounding the site are adequate for the proposed Project.
Police Protection. The need for police protection services is assessed on the basis of,
including, but not limited to, resident population estimates and the square footage of non-
residential uses.. The proposed emergency homeless shelter will provide shelter and
services to homeless individuals within the City of Tustin and will not increase the need for
police emergency and protection services. The facility will provide homeless residents with
direct access to the Police Department Homeless Liaison Officer through a designated area
within the administration building in the same campus.
Schools. The proposed project is located within Tustin Unified School District (TUSD).
The establishment and implementation of an emergency homeless shelter would not
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Page 19
generate additional students in that the homeless population to be served by the facility
reside in Tustin. The number of children generated by the proposed facility will not
significantly impact TUSD. The Reuse Plan provides for two 10 -acre elementary school
sites and one 40 -acre high school site within the TUSD to address school needs
associated with the build -out of the Reuse Plan.
Parks. The proposed emergency homeless facility involves at least 50 beds as per the
Court Settlement for residents of Tustin and will result in a minimal demand increase in
park facilities.
Other public facilities. Other public facilities and city services within the City of Tustin would
not be negatively impacted in that the homeless shelter would improve the efficiency and
effectiveness of providing assistance and services to the homeless population.
General Implementation Requirements: To support development in the reuse plan area, the
Reuse Plan/Specific Plan requires public services and facilities to be provided concurrent
with demand. The proposed Project will be required to comply with Prior Environmental
Review implementation measures adopted by the Tustin City Council.
No substantial change is expected from the analysis previously completed in the approved
Prior Environmental Review for MCAS Tustin. Based on the foregoing, none of the
conditions identified in CEQA Guidelines Section 15162 that would trigger the need to
prepare a subsequent or supplemental EIR or other environmental document to evaluate
Project impacts or mitigation measures exist with regard to public services. Specifically,
there have not been:,(1) changes to the Project that require major revisions of the Prior
Environmental Review due to the involvement of new significant environmental effects or
a substantial increase in the severity of previously identified effects; (2) substantial
changes with respect to the circumstances under which the Project is undertaken that
require major revisions of the Prior Environmental Review due to the involvement of new
significant environmental effects or a substantial increase in the severity of previously
identified effects; or (3) the availability of new information of substantial importance
relating to significant effects or mitigation measures or alternatives that were not known
and could not have been known when the Prior Environmental Review was certified as
completed.
Mitigation/Monitoring Required.• Mitigation measures have been adopted by the Tustin City
Council in the Prior Environmental Review.
Sources. Field Observation
FEIS/EIR for Disposal and Reuse of MCAS Tustin (Pages 3-47 to 3-57, 4-56
to 4-80 and 7-21 to 7-22)
FSEIR for Tustin Legacy Specific Plan Amendment (Pages 5.6-1 through 5.6-
12)
Tustin Legacy Specific Plan (Pages 3-6 through 3-10)
Tustin General Plan
XIV. RECREATION
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a) Would the project increase the use of existing neighborhood and regional parks
or other recreational facilities, such that substantial physical deterioration of the
facility would occur or be accelerated?
b) Does the project include recreational facilities or require the construction or
expansion of recreational facilities, which might have an adverse physical effect
on the environment?
For parks and recreation, the Tustin General Plan standard for determining capacity is
three acres per 1,000 population. Using this standard, approximately 37.5 acres of
parkland would be required to support the projected on-site residential population at build-
out of the Tustin Legacy Specific Plan. The Specific Plan provides for a new 85.5 -acre
Regional Park, a 24 -acre Community Park, and potentially a total of 170 acres of open -
space and recreational areas.
The proposed Project is for the establishment and operation of an emergency homeless
shelter facility within existing buildings and the addition of a new restroom/shower building.
The facility would serve homeless individuals within Tustin. The potential increase in
demand for recreational facilities would be negligible and can be accommodated in the
planned and existing parks and other recreational facilities.
No substantial change is expected from the analysis previously completed in the approved
FEIS/EIR for MCAS Tustin. Based on the foregoing, none of the conditions identified in
CEQA Guidelines Section 15162 that would trigger the need to prepare a subsequent or
supplemental EIR or other environmental document to evaluate Project impacts or
mitigation measures exist with regard to recreation. Specifically, there have not been: (1)
changes to the Project that require major revisions of the Prior Environmental Review due
to the involvement of new significant environmental effects or a substantial increase in the
severity of previously identified effects; (2) substantial changes with respect to the
circumstances under which the Project is undertaken that require major revisions of the
Prior Environmental Review due to the involvement of new significant environmental
effects or a substantial increase in the severity of previously identified effects; or (3) the
availability of new information of substantial importance relating to significant effects or
mitigation measures or alternatives that were not known and could not have been known
when the Prior Environmental Review was certified as completed.
Mitigation/Monitoring Required: No mitigation is required
Sources: Field Observation
FEIS/EIR for Disposal and Reuse of MCAS Tustin pages 3-47 to 3-57, 4-56
to 4-80 and 7-21 to 7-22
Tustin Legacy Specific Plan (Pages 3-6 through 3-10)
Tustin Parks and Recreation Department
Tustin General Plan
XV. TRANSPORTATION/TRAFFIC: Would the project:
a) Conflict with an applicable plan, ordinance or policy establishing measures of
effectiveness for the performance of the circulation system, taking into account
all modes of transportation including mass transit and non -motorized travel and
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relevant components of the circulation system, including but not limited to
intersections, streets, highways and freeways, pedestrian and bicycle paths,
and mass transit?
b) Conflict with an applicable congestion management program, including, but not
limited to level of service standards and travel demand measures, or other
standards established by the county congestion management agency for
designated roads or highways?
c) Result in a change in air traffic patterns, including either an increase in traffic
levels or a change in location that result in substantial safety risks?
d) Substantially increase hazards due to a design feature (e.g., sharp curves or
dangerous intersections) or incompatible uses (e.g., farm equipment)?
e) Result in inadequate emergency access?
g) Conflict with adopted policies, plans, or program regarding public transit,
bicycle, or pedestrian facilities, or otherwise decrease the performance or safety
of such facilities?
The proposed Project is for the establishment and operation of an emergency homeless
shelter facility within existing buildings and the addition of a new restroom/shower building.
The previous use of the project site was a community college satellite campus, including
classroom instruction, laboratory and workshop facilities, administration and ancillary
services. Consequently, based upon the nature of the use and the proposed use, no traffic
impact is anticipated as a result of the homeless shelter facility use.
No substantial change is expected from the analysis previously completed in the approved
Prior Environmental Review for MCAS Tustin. Based on the foregoing, none of the
conditions identified in CEQA Guidelines Section 15162 that would trigger the need to
prepare a subsequent or supplemental EIR or other environmental document to evaluate
Project impacts or mitigation measures exist with regard to recreation. Specifically, there
have not been: (1) changes to the Project that require major revisions of the Prior
Environmental Review due to the involvement of new significant environmental effects or
a substantial increase in the severity of previously identified effects; (2) substantial
changes with respect to the circumstances under which the Project is undertaken that
require major revisions of the Prior Environmental Review due to the involvement of new
significant environmental effects or a substantial increase in the severity of previously
identified effects; or (3) the availability of new information of substantial importance
relating to significant effects or mitigation measures or alternatives that were not known
and could not have been known when the Prior Environmental Review was certified as
completed.
Mitigation/Monitoring Required: Mitigation measures have been adopted by the Tustin City
Council in the Prior Environmental Review.
Sources: Field Observation
Submitted Plans
FEIS/EIR for Disposal and Reuse of MCAS Tustin (Pages 3-118 through 3-
142, 4-139 through 4-206 and 7-32 through 7-41)
FSEIR for Tustin Legacy Specific Plan Amendment (Pages 5.7-1 through 5.7-
33)
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Tustin Legacy Specific Plan (Pages 3-6 through 3-10)
Tustin General Plan
XVI. TRIBAL CULTURAL RESOURCES: Would the project cause a substantial adverse
change in the significance of a tribal cultural resource, defined in Public Resources
Code section 21074 as either a site, feature, place, cultural landscape that is
geographically defined in terms of the size and scope of the landscape, sacred
place, or object with cultural value to a California Native American tribe, and that is:
a) Listed or is eligible for listing in the California Register of Historical Resources,
or in a local register of historical resources as defined in Public Resources Code
section 5020.1(k).
b) A resource determined by the lead agency, in its discretion and supported by
substantial evidence, to be significant pursuant to criteria set forth in
subdivision (c) of Public Resources Code section 5024.1. In applying the criteria
set forth in subdivision (c) of Public Resources Code section 5024.1, the lead
agency shall consider the significance of the resource to a California Native
American tribe.
The proposed Project is for the establishment and operation of an emergency homeless
shelterfacility within existing buildings and the addition of a new restroom/shower building.
The Project calls for the conversion of existing buildings and the addition of a new ancillary
restroom/shower building. No grading or other ground -disturbing activities would be
required. The Project would not cause substantial adverse change in a tribal cultural
resource in that the property does not contain historical cultural resources and the
proposed use and modifications would not result impacts to historical or cultural resources.
(See also Cultural Resources, supra.)
Sources: Field Observation
Submitted Plans
FEIS/EIR for Disposal and Reuse of MCAS Tustin (Pages 3-68 through 3-74,
4-93 through 4-102)
Tustin Legacy Specific Plan (Pages 3-6 through 3-10).
Tustin General Plan
XVI. UTILITIES AND SERVICE SYSTEMS: Would the project:
a) Exceed wastewater treatment requirements of the applicable Regional Water
Quality Control Board?
b) Require or result in the construction of new water or wastewater treatment
facilities or expansion of existing facilities, the construction of which could
cause significant environmental effects?
c) Require or result in the construction of new storm water drainage facilities or
expansion of existing facilities, the construction of which could cause
significant environmental effects?
g) Have sufficient water supplies available to serve the project from existing
entitlements and resources, or are new or expanded entitlements needed?
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e) Result in a determination by the wastewater treatment provider, which serves or
may serve the project that it has adequate capacity to serve the project's
projected demand in addition to the provider's existing commitments?
f) Be served by a landfill with sufficient permitted capacity to accommodate the
project's solid waste disposal needs?
g) Comply with federal, state, and local statutes and regulations related to solid
waste?
The proposed Project is for the establishment and operation of an emergency homeless
shelter facility within existing buildings and the addition of a new restroom/shower building.
The new restroom/shower facility will be reviewed for code compliance and will be a minor
modification to the existing development. The existing buildings are already served by all
utilities, and no modifications to the storm drain, sewer, or water infrastructure would be
required in order to accommodate the Project
No substantial change is expected from the analysis previously completed in the approved
Prior Environmental Review for MCAS Tustin. Based on the foregoing, none of the
conditions identified in CEQA Guidelines Section 15162 that would trigger the need to
prepare a subsequent or supplemental EIR or other environmental document to evaluate
Project impacts or mitigation measures exist with regard to utilities and service systems.
Specifically, there have not been: (1) changes to the Project that require major revisions
of the Prior Environmental Review due to the involvement of new significant environmental
effects or a substantial increase in the severity of previously identified effects; (2)
substantial changes with respect to the circumstances under which the Project is
undertaken that require major revisions of the Prior Environmental Review due to the
involvement of new significant environmental effects or a substantial increase in the
severity of previously identified effects; or (3) the availability of new information of
substantial importance relating to significant effects or mitigation measures or alternatives
that were not known and could not have been known when the Prior Environmental
Review was certified as completed.
Mitigation/Mondoring Required: Mitigation measures have been adopted by the Tustin City
Council in the Prior Environmental Review.
Sources: Submitted Plans
FEIS/EIR for Disposal and Reuse of MCAS Tustin (pages 3-35 through 3-46,
4-32 through 4-55 and 7-20 through 7-21)
FSEIR for Tustin Legacy Specific Plan Amendment (Pages 5.8-1 through 5.8-
27)
Tustin Legacy Specific Plan (Pages 3-6 through 3-10)
Tustin General Plan
XVII. MANDATORY FINDINGS OF SIGNIFICANCE
a) Does the project have the potential to degrade the quality of the environment,
substantially reduce the habitat of a fish or wildlife species, cause a fish or
wildlife population to drop below self-sustaining levels, threaten to eliminate a
plant or animal community, reduce the number or restrict the range of a rare or
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endangered plant or animal or eliminate important examples of the major
periods of California history or prehistory?
b) Does the project have impacts that are individually limited but cumulatively
considerable? ("Cumulatively considerable" means that the incremental effects
of a project are considerable when viewed in connection with the effects of past
projects, the effects of other current projects, and the effects of probable future
projects.)
c) Does the project have environmental effects, which will cause substantial
adverse effects on human beings, either directly or indirectly?
Based upon the foregoing, the Proposed project does not have the potential to degrade the
quality of the environment, substantially reduce the habitats or wildlife populations, to
decrease or threaten', eliminate, or reduce animal ranges, etc. With the enforcement of Prior
Environmental Review mitigation and implementation measures approved by the Tustin City
Council, the proposed Project would not cause unmitigated environmental effects that will
cause substantial effects on human beings, either directly or indirectly. The Prior
Environmental Review determined that the redevelopment of the former MCAS Tustin would
have air quality impacts that are individually limited, but cumulatively considerable. The Prior
Environmental Review previously considered all environmental impacts associated with the
implementation of the Reuse Plan and MCAS Tustin Specific Plan. The Project would not
result in substantial changes to the environmental impacts previously considered with
adoption of the FEIS/EIR. Mitigation measures were identified in the Prior Environmental
Review to reduce impact, but not to a level of insignificance. A Statement of Overriding
Considerations for the FEIS/EIR was adopted by the Tustin City Council on January 16,
2001.
Mitigation/Monitoring Required: The Prior Environmental Review previously considered all
environmental impacts associated with the implementation of the Reuse Plan and MCAS
Tustin Specific Plan. Mitigation measures have been adopted by the Tustin City Council in
the Prior Environmental Review and would be included in the Project as applicable.
Sources: Field Observations
FEIS/EIR for Disposal and Reuse of MCAS Tustin (pages 5-4 through 5-11)
Tustin Legacy Specific Plan (Pages 5-34 through 3-68)
Tustin General Plan
CONCLUSION
All of the proposed Project's effects were previously examined in the Prior Environmental Review.
No new significant effects would occur, no substantial increase in the severity of previously identified
significant effects would occur, no new mitigation measures would be required, no applicable
mitigation measures previously not found to be feasible would in fact be feasible, and no new
mitigation measures or alternatives applicable to the project that would substantially reduce effects
of the project have not been considered and adopted. A Mitigation and Monitoring and Reporting
Program and a Statement of Overriding Considerations were adopted for the FEIS/EIR on January
16, 2001 and shall apply to the proposed Project, as applicable.
Attachment D
2017
POINT -IN -TIME COUNT,
CITY OF TUSTIN REPORT
#HFZPsTARrHExt
— IC
August 2017
T 714.288.4007
On Behalf of the 2-1-1 Orange County (2110C) staff, I am pleased to share your Point in Time City Report Based
on the Point in Time (PIT) Count & Survey conducted on the night of January 27, 2017 to the morning on January
L81 Lul/. As you are aware, we had a very robust PIT operation this year, with a 40% increase in volunteers (for
a total of 1,184 people); a 47% increase in number of mapped areas; and 20 of the 34 Orange County cities also
opting in to receive city level report.
While conducting the PIT and submitting the results to the U.S. Department of Housing and Urban Development
(HUD) is a requirement in order fog our community age,icie., to receive Million in funding to help house
those in need, it's important to remember that it's only a snapshot of the work done in our community to solve
the issue of homelessness. The PIT information reported to HUD covers the unsheltered persons counted on the
morning on January 28th, plus those individuals and families who were sheltered in either Emergency Shelters
or in Transitional Housing projects on the night of January 27th. The culmination of this information is found in
the attached report.
What the report noes not cover are those who are housed in Permanent Housing programs. Tnere has been a
concerted effort under way in Orange County during the past two years to focus on those in greatest need, i.e.
the chronically homeless population as defined By HUD. These programs include permanent supportive housing
(PSR) and rapid rehuaaing (RRFI), a., well a., funding for planning and the Coordinated Entry system (CES), which
matches our homeless individuals and families to PSH and RRH, as well as directing people to Emergency
Shelters. With the addition of The Courtyard and Bridges at Kraemer Place, we have additional Emergency
Shelter capacity that was greatly needed.
During the past two years (June 2015 — April 2017), the Orange County Continuum of Care Street Outreach
i eams and service providers, via the Coordinated Entry System, have:
• connected to 908 families and 2,094 individuals for vulnerability assessments;
• diverted 78 families and 32 individuals away trom homelessness;
= placed 66 families and 232 individuals in PSH/RRH programs;
matched 179 families and 33/ individuals to available PFI/RRR program;
• helped an additional 302 families and 1,123 individuals to get the paperwork needed prior to Being
matched to housing (proof of disability, verifi-ation of homele», ie.,.,,etc.); of this group 55% have
pulled their documents together and are considered "document ready."
In addition, between October 2015 and September 2016, 1,023 persons were moved to Belt-sutticiency trom
RRH programs to permanent Rousing. The community has also made great strides in increasing the Permanent
Supportive Housing unit capacity, meaning that individuals who have a disability (either physical or mental) are
provided with housing and wrap around support services. PSH capacity growth as reported in the OC annual
Housing Inventory Count increased from 2,392 beds in 2016 to 2,663 beds in 2017.
L11U1, ha., a mdque vantage point at looking at the community, by sitting at the intersection of the issue of
Romelessness in Orange County. Part of the reason Tor this is that 2110C gathers data as the Homeless
L-1-1 VrRnye C.vaniy
tveryor're KnCwa ]Gnreane -i5U5 t. 1/tR 5treeet, 501te 08, Santa Ana. (-A92/U5 www.ziioc.org www.helpstarrshere211.org
Who Needs Help 0 a 0 a
fu L
2-1-1 Orange Counry ver Connected, Cer answers
Management informai;on bysiem (FIR11b) lead, the CES lead, and the PI i lead, as well as operating the Orange
County 2-1-1 Intormation & Referral helpline. The 2-1-1 helpline allows us to iaentity how many people are
looking for resources on a daily basis.
In the past two years, we have seen an increase of 11% in total number of people looking Tor some sort of
asaiatance, with sj% of these individuals looking for housing assistance (whether rental assistance, affordable
housing, shelters, etc.). We have also seen 10% of all calls/web searches tocused on the need Tor tood
assistance and over A% of the calls looking for mental healTh or addiction help. This last group has increased
the greatest amount year over year.
Trends in Referrals Year over Year
FYZ015 % FYZ016 % FYZ017 %
31.gb%
31.18%
Nis
sr Fwd/Mead M4�yeal _ v0j'Ssi,_ Kea'�re
All uf ihe.,e namber> show that there cm ainaea Tu be a need for help in auF rommaniTy. It'a best to prevent
people trom talling into homelessness, and things like tood, rental assistance and utility assistance greatly helps.
Here at z11OC, we believe that when people get linked to resources, they do better ... and when they do better
the community is stronger.
We appreciate the participation of the whole community in the 2017 Point in Time Count & Survey, ana look
torward to continuing to work alongside all of you to solve the issue of homelessness in Orange County.
Sincerely,
Lc�l6CLIU�
Karen william.,
President and CED
/--1-1 Orange County
1SOS E.17th Street, Suite 108, San la Ana, CA 92705 714.288.4007 www.21loc.org www.he1pstartshere211 org
0 0 0 0
0 focus
STRXFF,C 1 LS
2017 Orange County Point -In -Time Count
Estimated Number of Unsheltered Homeless People in Tustin
The 2017 Point -In -Time (PIT) Count was conducted on the night of January 28, 2017. The PIT is
mandated by Housing and Urban Development (HUD) to be conducted at least every two years, and
includes counting those sleeping in both sheltered (emergency shelter and transitional housing) and
unsheltered locations. Orange County, and the cities within Orange County, were further interested in
the geographic distribution of the people experiencing homelessness. Because the location of shelters
varies throughout the County, the only information that is useful to report at a city level is people
experiencing unsheltered homelessness. The full PIT report can be found at www.21loc.org.
This brief report provides information for Tustin on the estimated number of people who were
experiencing unsheltered homelessness within the city on the morning of the 2017 Point -In -Time Count.
The estimates were derived using the total unsheltered PIT count as well as census data indicating the
2016 estimated poverty population of the city' (see Appendix for a discussion of the data and
assumptions used). In addition to the total number of people experiencing homelessness who were
unsheltered, the table below provides additional estimates of that population in terms of age, gender,
ethnicity, and race.
As the table below indicates, 2 people in families experiencing homelessness and 67 unsheltered
individuals (a total of 2.7% of the all people experiencing unsheltered homelessness in the County of
2,584 individuals) are estimated to have been in Tustin. Single adults were primarily: over 24 years old,
male, and Caucasian. The family household had 1 adult over 24 years old and 1 child under 18 years old.
Tustin
2017 Unsheltered Numbers Adult and Child Adult Only Total—
Households
1
66
67
Persons
2
67
69
< 18 years old
1
-
1
18-24 years old
0
3
3
> 24 years old
1
64
65
Gender
Female
1
11
12
Male
1
56
57
Transgender
0
0
0
Does not Identify
0
0
0
Ethnicity
Non-Hispanic/Non-Latino
1
46
47
Hispanic/Latino
1
21
22
' https://www.census.gov/quickfacts/table/SB0030212/06059
Race
White
2
50
52
Black or African American
0
10
10
Asian
0
2
2
American Indian or Alaska Native
0
3
3
Native Hawaiian or Other Pacific Islander
0
0
0
Multiple Races
0
2
2
Estimated Number of People Experiencing Unsheltered Homelessness I Prepared for 2-1-1 Orange County by Focus Strategies I July 2017 1 Page 2 of 4
Appendix: Data and Assumptions Used
Focus Strategies investigated several different sets of city population statistics, including poverty rate,
unemployment rate, and vacancy rate, prior to selecting the most appropriate population to use for
estimating city unsheltered populations. All data were available from the census
(https://factfinder.census.gov), a reliable, valid, and widely -used source. We discovered that because
published numbers for the most recent years of all the statistics are based on estimates from data
collected several years ago, the resulting city estimates were nearly identical regardless of the statistic
used. Poverty rate was used in these estimates. The number of people experiencing unsheltered
homelessness was proportionally assigned to each city based on poverty rates. Specifically, the total
number of people in poverty was calculated for Orange County, and for each city, allowing Focus
Strategies to apply a percentage of total poverty to each city. This percentage was then multiplied by
the total number of people who were unsheltered resulting in the unsheltered count for each city.
Table 1 illustrates the proportions of the number of family and adult only households as well as the
proportions of people within family and adult only households. The demographic characteristics of the
people within each household type are also provided. Using the data in Table 1 as well as the City
poverty rates (shown in Table 2), the estimated number of people experiencing unsheltered
homelessness in each city was first calculated, followed by their demographic characteristics using the
proportions in the table below.
Table 1. 2017 Orange County Point -In -Time Count: Demographic Breakdown of Adult and Child
(Family) and Adult Only Households
Orange County Unsheltered Demographics
2017 Unsheltered Numbers Adult and Child Adult Only Total
Households
20(1%)
2,468(99%)
2,488 (100%)
Persons
66(3%)
2,518(97%)
2,584 (100%)
< 18 years old
38%
-
1%
18-24 years old
1%
4%
4%
> 24 years old
61%
96%
95%
Gender
Female
45%
16%
17%
Male
55%
84%
83%
Transgender
0%
0%
0%
Does not Identify
0%
0%
0%
Ethnicity
Non-Hispanic/Non-Latino
56%
68%
68%
Hispanic/Latino
44%
32%
32%
Estimated Number of People Experiencing Unsheltered Homelessness I Prepared for 2-1-1 Orange County by Focus Strategies I July 2017 1 Page 3 of 4
Race
White
100%
75%
76%
Black or African American
0%
15%
15%
Asian
0%
3%
3%
American Indian or Alaska Native
0%
4%
4%
Native Hawaiian or Other Pacific Islander
0%
1%
0%
Multiple Races
0%
2%
2%
Table 2: Estimated Number and Percent of People Experiencing Unsheltered Homelessness by City
Estimated Number of People Experiencing Unsheltered Homelessness I Prepared for 2-1-1 Orange County by Focus Strategies I July 2017 1 Page 4 of 4
City
City Poverty
Estimated # People Who
Estimated % People Who
City
Population
Rate
Are Unsheltered
Are Unsheltered
Tustin
80,583
13.6%
69
2.7%
County
3,172,532
13.0%
2,584
100.00%
Estimated Number of People Experiencing Unsheltered Homelessness I Prepared for 2-1-1 Orange County by Focus Strategies I July 2017 1 Page 4 of 4
2017 Point -In -Time Count City Report: Tustin
Sheltered Homeless Methodology
2-1
The charts below were prepared by 2110C and include additional information on sheltered and unsheltered
homelessness in the city. Sheltered homeless population data was gathered in surveys completed by agencies that
provide shelter or housing to homeless persons as a part of the annual Point in Time (PIT) and Housing Inventory
Count (HIC) on the night of January 27th, 2017 to the morning of January 28th, 2017. The demographics in these
tables consist of data aggregated from Transitional Housing and Emergency Shelter project types. Data were
aggregated to the city level by Geo Code, a six -digit geographic code developed by the U.S. Department of
Housing and Urban Planning (HUD) which corresponds to cities and other geographic areas, and which represents
the geographic area where the majority of a project's beds dedicated to homeless persons are located. Projects
with a Geo Code of 069059 (Orange County) were coded to the city associated with their principal project site for
aggregation.
Homeless Persons in Tustin
ss
More than three-quarters
(78%) of Tustin's homeless
population lives in Transitional
Housing or Emergency
Shelters (sheltered condition).
Only 22% of Tustin's
homeless persons reside in
249 places not meant for human
habitation (unsheltered
condition).
Sheltered Unsheltered
Homeless Households in Tustin
Adult and Child Adult Only
The graph shows Tustin's
homeless population is
predominantly (70%) Adult
Only. Less than a third (30%)
of homeless households
contain both adults and
children.
>>>iii%»>>>>>>>>>>»»>>>>>>>»»>>>>>>>>>%»»»»»»>»»»>>>>>>>>>>>>>>>>>>>>>>>>>iii»>>>>>>>>>>>>>>>>>>>>>>>>>>>
2017 Point -In -Time Count City Report: Tustin
Number of Persons by Age
250
200
140
150
100 11
50 98
65
0 3
Sheltered Unsheltered
Numberof Children (under 18) Number of Young Adults (18-241
Number of Adults (overage 24)
Gender by Sleeping Location
10D%
90%
80%
70%
60%
so%
40%
30%
20%
10%
0%
100%
90%
W/.
70%
60%
50%
40%
30%
20%
10%
0%
Female Male
Sheltered Unsheltered
Ethnicity by Sleeping Location
r I
Mon-Hispanic/Non-Latina Hispanic/Latino
Sheltered 1 Unsheltered
Tustin's homeless Children reside almost
exclusively in shelters, and although its
unsheltered population is predominantly
made up of Adults (persons over the age of
24), there are in fact more adults living in
shelters than unsheltered. The sheltered
population is 39% Children, 4% Young
Adults, and 56% Adults over the age of 24,
whereas the unsheltered population is an
overwhelming 94% Adults, 4% Young
Adults, and 1% Children.
As can be inferred from the graph, Tustin's
population is distributed roughly equally
among Male (54%) and Female (46%)
persons, unlike most other cities which are
majority Male. Whereas both genders
reside mostly in Transitional Housing or
Emergency Shelters (also unique to
Tustin), Females sleep almost exclusively
(92%) in shelters, whereas only 67% of
Males do.
Almost two-thirds (63%) of Tustin's
homeless population identifies as
Non-Hispanic/Non-Latino. There are no
considerable differences in sleeping
location by ethnicity; both
Non-Hispanic/Non-Latino persons and
Hispanic/Latino persons live is mostly in
sheltered conditions (76% and 82%,
respectively).
100%
90%
80%
70%
60%
50%
40%
30%
20%
10%
0%
2017 Point -In -Time Count City Report: Tustin
Race by Sleeping Location
White Black or Asian American Native Multiple Races
African Indian or Hawaiian or
American Alaska Native Other Pacific
Islander
100%
90%
80%
70%
60%
50%
40%
30%
20%
10%
0%
Sheltered Unsheltered
Households by Sleeping Location
Adult and Child Adult Only
Sheltered Unsheltered
According to the graph, Tustin's homeless
population is largely (84%) White. There are
notable differences in sleeping location by
race. Persons who identify as White, Black or
African American, and Multiple Races reside
predominantly in Transitional Housing or
Emergency Shelters (80%, 67%, and 80%,
respectively). However, persons who identify
as Asian live equally in each sleeping
location type, whereas American Indian or
Alaska Native individuals live entirely
unsheltered and those who identify as Native
Hawaiian or Other Pacific Islander reside
exclusively in sheltered conditions.
The graph shows that households consisting
of both adults and children reside almost
exclusively (98%) in Transitional Housing or
Emergency Shelters, whereas Adult Only
households are distributed fairly evenly
between sheltered (54%) and unsheltered
(46%) conditions.
2017 Point -In -Time Count City Report: Tustin
2-1
— / ,oc
The following three graphs compare Irvine's percentage of the Orange County homeless
population with the median percentage of the homeless population for all cities in the county.
Percentage of Total Homeless Population: Unsheltered
3.00%
2.50%
2.00%
1.50%
1.00%
0.50%
0.00%
1132%
Tustin OC City Median
Percentage of Total Homeless Population: Sheltered
11.28%
2.00% 3.53%
a.CC%
Tustin OC City Median
Percentage of Total Homeless Population:
Combined Sheltered and Unsheltered
7.00%
6.00%
5.00%
4.00%
Tustin's portion of the Orange County
unsheltered homeless population (2.67%) is
double the median percentage for Orange
County cities of 1.32%.
The graph shows that Tustin's contribution to the
Orange County sheltered homeless population
(11.28%) is more than three times greater than
the median percentage for Orange County cities
of 3.53%.
Tustin's contributions to the unsheltered and
sheltered Orange County populations are
considerably higher than the medians for OC
cities. As a result, Tustin's proportion of the total
(combined sheltered and unsheltered) Orange
County homeless population (6.64%) is nearly
seven times higher than the median percentage
3.00% 6.64% for Orange County cities of 0.95%. Accordingly,
Tustin ranks #4 against other OC cities in terms
2.00% of largest percentage of the total Orange County
1.00% homeless population.
0.95%
a.aa%
■ Tustin ■ OC City Median
Tustin -Sheltered PIT
Adult and Child
Adult and Child
Adult Only
Total
Total number of households
60
79
139
Total number of persons
166
83
249
Number of Children (under 18)
98
1
98
Number of Young Adults (18-24)
4
7
11
Number of Adults (over age 24)
64
76
140
Gender
Female
100
34
134
Male
66
49
115
Transgender
0
0
0
Don't identify as male, female, or transgender
0
0
0
Ethnicity
Non-Hispanic/Non-Latino
90
62
152
Hispanic/Latino
76
21
97
Race
White
147
67
214
Black or African American
12
8
20
Asian
0
2
2
American Indian or Alaska Native
0
0
0
Native Hawaiian or Other Pacific Islander
5
0
5
Multiple Races
2
6
8
Tustin - Unsheltered PIT
Adult and Child
Adult Only
Total
Total number of households
1
66
67
Total number of persons
2
67
69
Number of Children (under 18)
1
1
Number of Young Adults (18-24)
0
3
3
Number of Adults (over age 24)
1
64
65
Gender
Female
1
11
12
Male
1
56
57
Transgender
0
0
0
Don't identify as male, female, or transgender
0
0
0
Ethnicity
Non-Hispanic/Non-Latino
1
46
47
Hispanic/Latino
1
21
22
Race
White
2
50
52
Black or African American
0
10
10
Asian
0
2
2
American Indian or Alaska Native
0
3
3
Native Hawaiian or Other Pacific Islander 0 0 0
Multiple Races 0 2 2
Persons by Age
Sheltered
Unsheltered
Number of Children (under 18)
98
1
Number of Young Adults (18-24)
11
3
Number of Adults (over age 24)
140
65
Gender
Sheltered
Unsheltered
Female
134
12
Male
115
57
Transgender
0
0
Don't identify as male, female, or
transgender
0
0
Tustin Homeless
Sheltered
Unsheltered
Number of Persons
249
69
Race
Sheltered
Unsheltered
White
214
52
Black or African American
20
10
Asian
2
2
American Indian or Alaska Native
0
3
Native Hawaiian or Other Pacific Islander
5
0
Multiple Races
8
2
Ethnicity
Sheltered
Unsheltered
Non-Hispanic/Non-Latino
152
47
Hispanic/Latino
97
22
Household Type
Sheltered
Unsheltered
Adult and Child
60
1
Adult Only
79
66
Number of
Households
Adult and Child
61
Adult Only
145
Percent (%) of Total
Percent (%) of total
Percent (%) of Total
Unsheltered
Sheltered
Homeless
Homeless Population by City
Population
Population
Population
OC City Median
1.32%
3.53%
0.95%
Tustin
2.67%
11.28%
6.64%
Glossary/List of Acronyms
Chronically Homeless Family
A chronically homeless family is defined as a household with at least one adult and one child under the age of 18, or a
minor Head of Household under the age of 18 and minimum of one child. The Head of Household must meet the
definition of a chronically homeless person (see next entry).
Chronically Homeless Individual
An unaccompanied individual who:
(i) is homeless and lives or resides in a place not meant for human habitation, a safe haven, or in an emergency shelter;
(ii) has been homeless and living or residing in a place not meant for human habitation, a safe haven, or in an
emergency shelter continuously for at least 1 year or on at least 4 separate occasions in the last 3 years where total
time homeless sums to at least 1 year; and
(iii) has an adult head of household (or a minor head of household if no adult is present in the household) with a
diagnosable substance use disorder, serious mental illness, developmental disability (as defined in section 102 of the
Developmental Disabilities Assistance and Bill of Rights Act of 2000 (42 U.S.C. 15002)), post-traumatic stress disorder,
cognitive impairments resulting from a brain injury, or chronic physical illness or disability, including the co -occurrence
of 2 or more of those conditions, which prevent them from holding a job or living in stable housing.
A person who currently lives or resides in an institutional care facility, including a jail, substance abuse or mental health
treatment facility, hospital or other similar facility, and has resided there for fewer than 90 days shall be considered
chronically homeless if such person met all of the requirements described above prior to entering that facility.
Chronicity
Respondent indicated being homeless (i.e. living in a shelter, on the streets, a car, or in other places not meant for
habitation) for the last 12 months or having been homeless at least 4 times in the past 3 years with a total time
homeless of at least 1 year across all homeless episodes.
Chronic Substance Abuse
This category on the PIT includes adults with a substance abuse problem (alcohol abuse, drug abuse, or both) that is
expected to be of long -continued and indefinite duration and substantially impairs the person's ability to live
independently.
2017 Point -In -Time Count City Report
2-1�,oc
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Commission to End Homelessness (C2eH)
The purpose of the Commission to End Homelessness is for County government, city government, private foundations,
advocacy groups, community organizations, and other interested stakeholders to work collaboratively and provide
strategic leadership to promote best practices, monitor outcomes, and report results on the success of the Ten -Year
Plan to End Homelessness.
Coordinated Entry
Coordinated Entry is designed to coordinate program participant intake assessment and provision of referral. A
centralized or coordinated entry system covers the geographic area, is easily accessed by individuals and families
seeking housing or services, is well advertised, and includes comprehensive and standardized assessment tool.
Disability
Defined by HUD in 2011 as (1) having a disability as a defined in Section 223 of the Social Security Act; (2) a physical,
mental, or emotional impairment which is expected to be of long ---continued and indefinite duration, substantially
impedes an individual's ability to live independently, and of such a nature that the disability could be improved by more
suitable conditions; (5) a developmental disability as defined in Section 102 of the Developmental Disabilities
Assistance and Bill of Rights Act; (4) the disease of acquired immune deficiency syndrome or any condition arising from
the etiological agent for acquired immune deficiency syndrome; or (5) a diagnosable substance abuse disorder.
Domestic Violence
A family member, partner or ex -partner attempts to physically or psychologically dominate another. Includes physical
violence, sexual abuse, emotional abuse, intimidation, economic deprivation, and threats of violence. Violence can be
criminal and includes physical assault (hitting, pushing, shoving), sexual abuse (unwanted or forced activity), and
stalking. Emotional, psychological, and financial abuse are forms of abuse and can lead to criminal domestic violence
Emergency Shelter
In the CoC Supportive Housing Program, emergency shelters are facilities offering limited shelter stays (generally up to
90 days) which offers a safe alternative to living on the streets and which provides essential services. On a case---by--
-case basis, clients may remain for longer than ninety days if they require a longer period to accomplish a specific
goal.
Extrapolation
A technique for estimating the total number of homeless persons in a particular category that is based on the number
of unsheltered and sheltered homeless persons observed and/or interviewed during a homeless count.
2017 Point -In -Time Count City Report
2 id 0C
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Homeless Management Information Systems (HMIS)
Computerized data collection to capture client -level information on the characteristics and service needs of those
experiencing homelessness. It is designed to aggregate client -level data to generate an unduplicated count of clients
served within a community's system of homeless services. The HMIS can provide data on client characteristics and
service utilization. HUD funded service providers for the at-risk/homeless are required to participate, as their data is
provided to HUD, who then reports the information to Congress. Collecting this data is a requirement by HUD in order
for the community and its service agencies to receive HUD funding for programs supporting the at -risk and homeless
population.
Housing Inventory Chart (HIC)
The HIC is designed to be an accurate reflection of a CoC's capacity to house homeless and formerly homeless
persons. The HIC is a complete inventory of emergency shelter, transitional housing and permanent supportive housing
beds available. The inventory includes all HUD funded residential programs, as well as non -HUD funded programs that
provide housing, even if those programs do not actively participate in the CoC planning process.
Permanent Supportive Housing (PSH)
Long-term, community-based housing that has supportive services for homeless persons with disabilities. This type of
housing enables the special needs populations to live independently as possible. Permanent housing can be provided
in one structure or in several structures at one site or in multiple structures at scattered sites.
Persons with HIV/AIDS
This subpopulation category of the PIT includes adults who have been diagnosed with AIDS and/or have tested positive
for HIV.
Point -in -Time Count & Survey (PIT)
Requirement of the U.S. Department of Housing and Urban Development (HUD) that Continuums of Cares (CoCs)
across the country undertake community wide efforts to collect information on the number and characteristics of
individuals and families experiencing homelessness. The Point -in -Time Count must occur at least every two years during
the last ten days of January.
Proposition 47
A ballot initiative passed by California voters to reduce certain felonies to misdemeanors allowing people serving for
these crimes to petition for a reduced sentence. More information can be found at:
www.cdcr.ca.gov/news/prop47.html.
Rapid Re -Housing (RRH)
Rapid Re -housing is an approach that focuses on moving individuals and families that are homeless into appropriate
housing as quickly as possible.
2017 Point -In -Time Count City Report
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Severely Mentally III
This subpopulation category of the PIT includes adults with mental health problems that are expected to be of
long -continued and indefinite duration and substantially impairs the person's ability to live independently.
Substance Abuse Programs
Programs that are tailored for individuals with substance abuse issues are programs that serve individuals who have
acknowledged addiction problems related to alcohol and drug use and who seek services or housing to support their
sobriety.
Transitional Housing (TH)
A project that is designed to provide housing and appropriate supportive services to homeless persons to facilitate
movement to independent living within 24 months as defined by HUD.
Unsheltered Homeless
Survey respondents who indicated that they spent last night in the streets, a vehicle, an abandoned building, bus/train
station, camping not in a designated campground, sleeping anywhere outside, or other place not meant for human
habitation or stayed in friend or family's garage, backyard, porch, shed or driveway were counted as unsheltered
homeless.
Veteran
This subpopulation category of the PIT includes persons who have served on active duty in the Armed Forces of the
United States. This does not include inactive military reserves or the National Guard unless the person was called up to
active duty.
2017 Point -In -Time Count City Report
2 id Oc
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Find additional reports, including the full Point in Time Count report, by visiting:
www.21loc.org
For related inquiries, contact Kristin Jefferson at (714) 589 - 2551
2017 Point -In -Time Count City Report - AidNOW,
c
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ROBERT MARTIN; LAWRENCE LEE
SMITH; ROBERT ANDERSON; JANET
F.BELL; PAMELA S. HAWKES; and
BASIL E. HUMPHREY,
Plaintiffs-Appellants,
v.
CITY OF BOISE,
Defendant-Appellee.
No. 15-35845
D.C. No.
1:09-cv-00540-
REB
OPINION
Appeal from the United States District Court
for the District of Idaho
Ronald E. Bush, Chief Magistrate Judge, Presiding
Argued and Submitted July 13, 2017
Portland, Oregon
Filed September 4, 2018
Before: Marsha S. Berzon, Paul J. Watford,
and John B. Owens, Circuit Judges.
Opinion by Judge Berzon;
Partial Concurrence and Partial Dissent by Judge Owens
ATTACHMENT E
FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
MARTIN V. CITY OF BOISE2
SUMMARY*
Civil Rights
The panel affirmed in part and reversed in part the district
court’s summary judgment in an action brought by six current
or formerly homeless City of Boise residents who alleged that
their citations under the City’s Camping and Disorderly
Conduct Ordinances violated the Eighth Amendment’s
prohibition on cruel and unusual punishment.
Plaintiffs sought damages for the alleged violations under
42 U.S.C. § 1983. Two plaintiffs also sought prospective
declaratory and injunctive relief precluding future
enforcement of the ordinances. In 2014, after this litigation
began, the ordinances were amended to prohibit their
enforcement against any homeless person on public property
on any night when no shelter had an available overnight
space.
The panel first held that two plaintiffs had standing to
pursue prospective relief because they demonstrated a
genuine issue of material fact as to whether they faced a
credible risk of prosecution on a night when they had been
denied access to the City’s shelters. The panel noted that
although the 2014 amendment precluded the City from
enforcing the ordinances when shelters were full, individuals
could still be turned away for reasons other than shelter
capacity, such as for exceeding the shelter’s stay limits, or for
* This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
MARTIN V. CITY OF BOISE 3
failing to take part in a shelter’s mandatory religious
programs.
The panel held that although the doctrine set forth in Heck
v. Humphrey, 512 U.S. 477 (1994) and its progeny precluded
most — but not all — of the plaintiffs’ requests for
retrospective relief, the doctrine had no application to
plaintiffs’ request for an injunction enjoining prospective
enforcement of the ordinances.
Turning to the merits, the panel held that the Cruel and
Unusual Punishments Clause of the Eighth Amendment
precluded the enforcement of a statute prohibiting sleeping
outside against homeless individuals with no access to
alternative shelter. The panel held that, as long as there is no
option of sleeping indoors, the government cannot criminalize
indigent, homeless people for sleeping outdoors, on public
property, on the false premise they had a choice in the matter.
Concurring in part and dissenting in part, Judge Owens
disagreed with the majority’s opinion that Heck v. Humphrey
did not bar plaintiffs’ claim for declaratory and injunctive
relief. Judge Owens stated that a declaration that the city
ordinances are unconstitutional and an injunction against their
future enforcement would necessarily demonstrate the
invalidity of plaintiffs’ prior convictions. Judge Owens
otherwise joined the majority in full.
MARTIN V. CITY OF BOISE4
COUNSEL
Michael E. Bern (argued) and Kimberly Leefatt, Latham &
Watkins LLP, Washington, D.C.; Howard A. Belodoff, Idaho
Legal Aid Services Inc., Boise, Idaho; Eric Tars, National
Law Center on Homelessness & Poverty, Washington, D.C.;
Plaintiffs-Appellants.
Brady J. Hall (argued), Michael W. Moore, and Steven R.
Kraft, Moore Elia Kraft & Hall LLP, Boise, Idaho; Scott B.
Muir, Deputy City Attorney; Robert B. Luce, City Attorney;
City Attorney’s Office, Boise, Idaho; for Defendant-
Appellee.
OPINION
BERZON, Circuit Judge:
“The law, in its majestic equality, forbids rich
and poor alike to sleep under bridges, to beg
in the streets, and to steal their bread.”
— Anatole France, The Red Lily
We consider whether the Eighth Amendment’s
prohibition on cruel and unusual punishment bars a city from
prosecuting people criminally for sleeping outside on public
property when those people have no home or other shelter to
go to. We conclude that it does.
The plaintiffs-appellants are six current or former
residents of the City of Boise (“the City”), who are homeless
or have recently been homeless. Each plaintiff alleges that,
MARTIN V. CITY OF BOISE 5
between 2007 and 2009, he or she was cited by Boise police
for violating one or both of two city ordinances. The first,
Boise City Code § 9-10-02 (the “Camping Ordinance”),
makes it a misdemeanor to use “any of the streets, sidewalks,
parks, or public places as a camping place at any time.” The
Camping Ordinance defines “camping” as “the use of public
property as a temporary or permanent place of dwelling,
lodging, or residence.” Id. The second, Boise City Code § 6-
01-05 (the “Disorderly Conduct Ordinance”), bans
“[o]ccupying, lodging, or sleeping in any building, structure,
or public place, whether public or private . . . without the
permission of the owner or person entitled to possession or in
control thereof.”
All plaintiffs seek retrospective relief for their previous
citations under the ordinances. Two of the plaintiffs, Robert
Anderson and Robert Martin, allege that they expect to be
cited under the ordinances again in the future and seek
declaratory and injunctive relief against future prosecution.
In Jones v. City of Los Angeles, 444 F.3d 1118, 1138 (9th
Cir. 2006), vacated, 505 F.3d 1006 (9th Cir. 2007), a panel of
this court concluded that “so long as there is a greater number
of homeless individuals in Los Angeles than the number of
available beds [in shelters]” for the homeless, Los Angeles
could not enforce a similar ordinance against homeless
individuals “for involuntarily sitting, lying, and sleeping in
public.” Jones is not binding on us, as there was an
underlying settlement between the parties and our opinion
was vacated as a result. We agree with Jones’s reasoning and
central conclusion, however, and so hold that an ordinance
violates the Eighth Amendment insofar as it imposes criminal
sanctions against homeless individuals for sleeping outdoors,
on public property, when no alternative shelter is available to
MARTIN V. CITY OF BOISE6
them. Two of the plaintiffs, we further hold, may be entitled
to retrospective and prospective relief for violation of that
Eighth Amendment right.
I. Background
The district court granted summary judgment to the City
on all claims. We therefore review the record in the light
most favorable to the plaintiffs. Tolan v. Cotton, 134 S. Ct.
1861, 1866 (2014).
Boise has a significant and increasing homeless
population. According to the Point-in-Time Count (“PIT
Count”) conducted by the Idaho Housing and Finance
Association, there were 753 homeless individuals in Ada
County — the county of which Boise is the seat — in January
2014, 46 of whom were “unsheltered,” or living in places
unsuited to human habitation such as parks or sidewalks. In
2016, the last year for which data is available, there were
867 homeless individuals counted in Ada County, 125 of
whom were unsheltered.1 The PIT Count likely
underestimates the number of homeless individuals in Ada
1 The United States Department of Housing and Urban Development
(“HUD”) requires local homeless assistance and prevention networks to
conduct an annual count of homeless individuals on one night each
January, known as the PIT Count, as a condition of receiving federal
funds. State, local, and federal governmental entities, as well as private
service providers, rely on the PIT Count as a “critical source of data” on
homelessness in the United States. The parties acknowledge that the PIT
Count is not always precise. The City’s Director of Community
Partnerships, Diana Lachiondo, testified that the PIT Count is “not always
the . . . best resource for numbers,” but also stated that “the point-in-time
count is our best snapshot” for counting the number of homeless
individuals in a particular region, and that she “cannot give . . . any other
number with any kind of confidence.”
MARTIN V. CITY OF BOISE 7
County. It is “widely recognized that a one-night point in
time count will undercount the homeless population,” as
many homeless individuals may have access to temporary
housing on a given night, and as weather conditions may
affect the number of available volunteers and the number of
homeless people staying at shelters or accessing services on
the night of the count.
There are currently three homeless shelters in the City of
Boise offering emergency shelter services, all run by private,
nonprofit organizations. As far as the record reveals, these
three shelters are the only shelters in Ada County.
One shelter — “Sanctuary” — is operated by Interfaith
Sanctuary Housing Services, Inc. The shelter is open to men,
women, and children of all faiths, and does not impose any
religious requirements on its residents. Sanctuary has 96 beds
reserved for individual men and women, with several
additional beds reserved for families. The shelter uses floor
mats when it reaches capacity with beds.
Because of its limited capacity, Sanctuary frequently has
to turn away homeless people seeking shelter. In 2010,
Sanctuary reached full capacity in the men’s area “at least
half of every month,” and the women’s area reached capacity
“almost every night of the week.” In 2014, the shelter
reported that it was full for men, women, or both on 38% of
nights. Sanctuary provides beds first to people who spent the
previous night at Sanctuary. At 9:00 pm each night, it allots
any remaining beds to those who added their names to the
shelter’s waiting list.
The other two shelters in Boise are both operated by the
Boise Rescue Mission (“BRM”), a Christian nonprofit
MARTIN V. CITY OF BOISE8
organization. One of those shelters, the River of Life Rescue
Mission (“River of Life”), is open exclusively to men; the
other, the City Light Home for Women and Children (“City
Light”), shelters women and children only.
BRM’s facilities provide two primary “programs” for the
homeless, the Emergency Services Program and the New Life
Discipleship Program.2 The Emergency Services Program
provides temporary shelter, food, and clothing to anyone in
need. Christian religious services are offered to those seeking
shelter through the Emergency Services Program. The
shelters display messages and iconography on the walls, and
the intake form for emergency shelter guests includes a
religious message.3
Homeless individuals may check in to either BRM facility
between 4:00 and 5:30 pm. Those who arrive at BRM
facilities between 5:30 and 8:00 pm may be denied shelter,
depending on the reason for their late arrival; generally,
anyone arriving after 8:00 pm is denied shelter.
Except in winter, male guests in the Emergency Services
Program may stay at River of Life for up to 17 consecutive
nights; women and children in the Emergency Services
Program may stay at City Light for up to 30 consecutive
2 The record suggests that BRM provides some limited additional
non-emergency shelter programming which, like the Discipleship
Program, has overtly religious components.
3 The intake form states in relevant part that “We are a Gospel Rescue
Mission. Gospel means ‘Good News,’ and the Good News is that Jesus
saves us from sin past, present, and future. We would like to share the
Good News with you. Have you heard of Jesus? . . . Would you like to
know more about him?”
MARTIN V. CITY OF BOISE 9
nights. After the time limit is reached, homeless individuals
who do not join the Discipleship Program may not return to
a BRM shelter for at least 30 days.4 Participants in the
Emergency Services Program must return to the shelter every
night during the applicable 17-day or 30-day period; if a
resident fails to check in to a BRM shelter each night, that
resident is prohibited from staying overnight at that shelter
for 30 days. BRM’s rules on the length of a person’s stay in
the Emergency Services Program are suspended during the
winter.
The Discipleship Program is an “intensive, Christ-based
residential recovery program” of which “[r]eligious study is
the very essence.” The record does not indicate any limit to
how long a member of the Discipleship Program may stay at
a BRM shelter.
The River of Life shelter contains 148 beds for
emergency use, along with 40 floor mats for overflow;
78 additional beds serve those in non-emergency shelter
programs such as the Discipleship Program. The City Light
shelter has 110 beds for emergency services, as well as
40 floor mats to handle overflow and 38 beds for women in
non-emergency shelter programs. All told, Boise’s three
homeless shelters contain 354 beds and 92 overflow mats for
homeless individuals.
A.The Plaintiffs
Plaintiffs Robert Martin, Robert Anderson, Lawrence Lee
Smith, Basil E. Humphrey, Pamela S. Hawkes, and Janet F.
4 The parties dispute the extent to which BRM actually enforces the
17- and 30-day limits.
MARTIN V. CITY OF BOISE10
Bell are all homeless individuals who have lived in or around
Boise since at least 2007. Between 2007 and 2009, each
plaintiff was convicted at least once of violating the Camping
Ordinance, the Disorderly Conduct Ordinance, or both. With
one exception, all plaintiffs were sentenced to time served for
all convictions; on two occasions, Hawkes was sentenced to
one additional day in jail. During the same period, Hawkes
was cited, but not convicted, under the Camping Ordinance,
and Martin was cited, but not convicted, under the Disorderly
Conduct Ordinance.
Plaintiff Robert Anderson currently lives in Boise; he is
homeless and has often relied on Boise’s shelters for housing.
In the summer of 2007, Anderson stayed at River of Life as
part of the Emergency Services Program until he reached the
shelter’s 17-day limit for male guests. Anderson testified that
during his 2007 stay at River of Life, he was required to
attend chapel services before he was permitted to eat dinner.
At the conclusion of his 17-day stay, Anderson declined to
enter the Discipleship Program because of his religious
beliefs. As Anderson was barred by the shelter’s policies
from returning to River of Life for 30 days, he slept outside
for the next several weeks. On September 1, 2007, Anderson
was cited under the Camping Ordinance. He pled guilty to
violating the Camping Ordinance and paid a $25 fine; he did
not appeal his conviction.
Plaintiff Robert Martin is a former resident of Boise who
currently lives in Post Falls, Idaho. Martin returns frequently
to Boise to visit his minor son. In March of 2009, Martin was
cited under the Camping Ordinance for sleeping outside; he
was cited again in 2012 under the same ordinance.
MARTIN V. CITY OF BOISE 11
B.Procedural History
The plaintiffs filed this action in the United States District
Court for the District of Idaho in October of 2009. All
plaintiffs alleged that their previous citations under the
Camping Ordinance and the Disorderly Conduct Ordinance
violated the Cruel and Unusual Punishments Clause of the
Eighth Amendment, and sought damages for those alleged
violations under 42 U.S.C. § 1983. Cf. Jones, 444 F.3d at
1138. Anderson and Martin also sought prospective
declaratory and injunctive relief precluding future
enforcement of the ordinances under the same statute and the
Declaratory Judgment Act, 28 U.S.C. §§ 2201–2202.
After this litigation began, the Boise Police Department
promulgated a new “Special Order,” effective as of January
1, 2010, that prohibited enforcement of either the Camping
Ordinance or the Disorderly Conduct Ordinance against any
homeless person on public property on any night when no
shelter had “an available overnight space.” City police
implemented the Special Order through a two-step procedure
known as the “Shelter Protocol.”
Under the Shelter Protocol, if any shelter in Boise reaches
capacity on a given night, that shelter will so notify the police
at roughly 11:00 pm. Each shelter has discretion to determine
whether it is full, and Boise police have no other mechanism
or criteria for gauging whether a shelter is full. Since the
Shelter Protocol was adopted, Sanctuary has reported that it
was full on almost 40% of nights. Although BRM agreed to
the Shelter Protocol, its internal policy is never to turn any
person away because of a lack of space, and neither BRM
shelter has ever reported that it was full.
MARTIN V. CITY OF BOISE12
If all shelters are full on the same night, police are to
refrain from enforcing either ordinance. Presumably because
the BRM shelters have not reported full, Boise police
continue to issue citations regularly under both ordinances.
In July 2011, the district court granted summary judgment
to the City. It held that the plaintiffs’ claims for retrospective
relief were barred under the Rooker-Feldman doctrine and
that their claims for prospective relief were mooted by the
Special Order and the Shelter Protocol. Bell v. City of Boise,
834 F. Supp. 2d 1103 (D. Idaho 2011). On appeal, we
reversed and remanded. Bell v. City of Boise, 709 F.3d 890,
901 (9th Cir. 2013). We held that the district court erred in
dismissing the plaintiffs’ claims under the Rooker-Feldman
doctrine. Id. at 897. In so holding, we expressly declined to
consider whether the favorable-termination requirement from
Heck v. Humphrey, 512 U.S. 477 (1994), applied to the
plaintiffs’ claims for retrospective relief. Instead, we left the
issue for the district court on remand. Bell, 709 F.3d at 897
n.11.
Bell further held that the plaintiffs’ claims for prospective
relief were not moot. The City had not met its “heavy
burden” of demonstrating that the challenged conduct —
enforcement of the two ordinances against homeless
individuals with no access to shelter — “could not reasonably
be expected to recur.” Id. at 898, 901 (quoting Friends of the
Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S.
167, 189 (2000)). We emphasized that the Special Order was
a statement of administrative policy and so could be amended
or reversed at any time by the Boise Chief of Police. Id. at
899–900.
MARTIN V. CITY OF BOISE 13
Finally, Bell rejected the City’s argument that the
plaintiffs lacked standing to seek prospective relief because
they were no longer homeless. Id. at 901 & n.12. We noted
that, on summary judgment, the plaintiffs “need not establish
that they in fact have standing, but only that there is a genuine
issue of material fact as to the standing elements.” Id.
(citation omitted).
On remand, the district court again granted summary
judgment to the City on the plaintiffs’ § 1983 claims. The
court observed that Heck requires a § 1983 plaintiff seeking
damages for “harm caused by actions whose unlawfulness
would render a conviction or sentence invalid” to demonstrate
that “the conviction or sentence has been reversed on direct
appeal, expunged by executive order, declared invalid by a
state tribunal . . . or called into question by a federal court’s
issuance of a writ of habeas corpus.” 512 U.S. at 486–87.
According to the district court, “a judgment finding the
Ordinances unconstitutional . . . necessarily would imply the
invalidity of Plaintiffs’ [previous] convictions under those
ordinances,” and the plaintiffs therefore were required to
demonstrate that their convictions or sentences had already
been invalidated. As none of the plaintiffs had raised an
Eighth Amendment challenge as a defense to criminal
prosecution, nor had any plaintiff successfully appealed their
conviction, the district court held that all of the plaintiffs’
claims for retrospective relief were barred by Heck. The
district court also rejected as barred by Heck the plaintiffs’
claim for prospective injunctive relief under § 1983,
reasoning that “a ruling in favor of Plaintiffs on even a
prospective § 1983 claim would demonstrate the invalidity of
any confinement stemming from those convictions.”
MARTIN V. CITY OF BOISE14
Finally, the district court determined that, although Heck
did not bar relief under the Declaratory Judgment Act, Martin
and Anderson now lack standing to pursue such relief. The
linchpin of this holding was that the Camping Ordinance and
the Disorderly Conduct Ordinance were both amended in
2014 to codify the Special Order’s mandate that “[l]aw
enforcement officers shall not enforce [the ordinances] when
the individual is on public property and there is no available
overnight shelter.” Boise City Code §§ 6-01-05, 9-10-02.
Because the ordinances, as amended, permitted camping or
sleeping in a public place when no shelter space was
available, the court held that there was no “credible threat” of
future prosecution. “If the Ordinances are not to be enforced
when the shelters are full, those Ordinances do not inflict a
constitutional injury upon these particular plaintiffs . . . .”
The court emphasized that the record “suggests there is no
known citation of a homeless individual under the Ordinances
for camping or sleeping on public property on any night or
morning when he or she was unable to secure shelter due to
a lack of shelter capacity” and that “there has not been a
single night when all three shelters in Boise called in to report
they were simultaneously full for men, women or families.”
This appeal followed.
MARTIN V. CITY OF BOISE 15
II. Discussion
A.Standing
We first consider whether any of the plaintiffs has
standing to pursue prospective relief.5 We conclude that there
are sufficient opposing facts in the record to create a genuine
issue of material fact as to whether Martin and Anderson face
a credible threat of prosecution under one or both ordinances
in the future at a time when they are unable to stay at any
Boise homeless shelter.6
“To establish Article III standing, an injury must be
concrete, particularized, and actual or imminent; fairly
traceable to the challenged action; and redressable by a
favorable ruling.” Clapper v. Amnesty Int’l USA, 133 S. Ct.
1138, 1147 (2013) (citation omitted). “Although imminence
is concededly a somewhat elastic concept, it cannot be
stretched beyond its purpose, which is to ensure that the
alleged injury is not too speculative for Article III purposes
— that the injury is certainly impending.” Id. (citation
omitted). A plaintiff need not, however, await an arrest or
prosecution to have standing to challenge the constitutionality
of a criminal statute. “When the plaintiff has alleged an
5 Standing to pursue retrospective relief is not in doubt. The only
threshold question affecting the availability of a claim for retrospective
relief — a question we address in the next section — is whether such
relief is barred by the doctrine established in Heck.
6 Although the SAC is somewhat ambiguous regarding which of the
plaintiffs seeks prospective relief, counsel for the plaintiffs made clear at
oral argument that only two of the plaintiffs, Martin and Anderson, seek
such relief, and the district court considered the standing question with
respect to Martin and Anderson only.
MARTIN V. CITY OF BOISE16
intention to engage in a course of conduct arguably affected
with a constitutional interest, but proscribed by a statute, and
there exists a credible threat of prosecution thereunder, he
should not be required to await and undergo a criminal
prosecution as the sole means of seeking relief.” Babbitt v.
United Farm Workers Nat’l Union, 442 U.S. 289, 298 (1979)
(citation and internal quotation marks omitted). To defeat a
motion for summary judgment premised on an alleged lack of
standing, plaintiffs “ need not establish that they in fact have
standing, but only that there is a genuine question of material
fact as to the standing elements.” Cent. Delta Water Agency
v. United States, 306 F.3d 938, 947 (9th Cir. 2002).
In dismissing Martin and Anderson’s claims for
declaratory relief for lack of standing, the district court
emphasized that Boise’s ordinances, as amended in 2014,
preclude the City from issuing a citation when there is no
available space at a shelter, and there is consequently no risk
that either Martin or Anderson will be cited under such
circumstances in the future. Viewing the record in the light
most favorable to the plaintiffs, we cannot agree.
Although the 2014 amendments preclude the City from
enforcing the ordinances when there is no room available at
any shelter, the record demonstrates that the City is wholly
reliant on the shelters to self-report when they are full. It is
undisputed that Sanctuary is full as to men on a substantial
percentage of nights, perhaps as high as 50%. The City
nevertheless emphasizes that since the adoption of the Shelter
Protocol in 2010, the BRM facilities, River of Life and City
Light, have never reported that they are full, and BRM states
that it will never turn people away due to lack space.
MARTIN V. CITY OF BOISE 17
The plaintiffs have pointed to substantial evidence in the
record, however, indicating that whether or not the BRM
facilities are ever full or turn homeless individuals away for
lack of space, they do refuse to shelter homeless people who
exhaust the number of days allotted by the facilities.
Specifically, the plaintiffs allege, and the City does not
dispute, that it is BRM’s policy to limit men to
17 consecutive days in the Emergency Services Program,
after which they cannot return to River of Life for 30 days;
City Light has a similar 30-day limit for women and children.
Anderson testified that BRM has enforced this policy against
him in the past, forcing him to sleep outdoors.
The plaintiffs have adduced further evidence indicating
that River of Life permits individuals to remain at the shelter
after 17 days in the Emergency Services Program only on the
condition that they become part of the New Life Discipleship
program, which has a mandatory religious focus. For
example, there is evidence that participants in the New Life
Program are not allowed to spend days at Corpus Christi, a
local Catholic program, “because it’s . . . a different sect.”
There are also facts in dispute concerning whether the
Emergency Services Program itself has a religious
component. Although the City argues strenuously that the
Emergency Services Program is secular, Anderson testified
to the contrary; he stated that he was once required to attend
chapel before being permitted to eat dinner at the River of
Life shelter. Both Martin and Anderson have objected to the
overall religious atmosphere of the River of Life shelter,
including the Christian messaging on the shelter’s intake
form and the Christian iconography on the shelter walls. A
city cannot, via the threat of prosecution, coerce an individual
to attend religion-based treatment programs consistently with
the Establishment Clause of the First Amendment. Inouye v.
MARTIN V. CITY OF BOISE18
Kemna, 504 F.3d 705, 712–13 (9th Cir. 2007). Yet at the
conclusion of a 17-day stay at River of Life, or a 30-day stay
at City Light, an individual may be forced to choose between
sleeping outside on nights when Sanctuary is full (and risking
arrest under the ordinances), or enrolling in BRM
programming that is antithetical to his or her religious beliefs.
The 17-day and 30-day limits are not the only BRM
policies which functionally limit access to BRM facilities
even when space is nominally available. River of Life also
turns individuals away if they voluntarily leave the shelter
before the 17-day limit and then attempt to return within
30 days. An individual who voluntarily leaves a BRM
facility for any reason — perhaps because temporary shelter
is available at Sanctuary, or with friends or family, or in a
hotel — cannot immediately return to the shelter if
circumstances change. Moreover, BRM’s facilities may deny
shelter to any individual who arrives after 5:30 pm, and
generally will deny shelter to anyone arriving after 8:00 pm.
Sanctuary, however, does not assign beds to persons on its
waiting list until 9:00 pm. Thus, by the time a homeless
individual on the Sanctuary waiting list discovers that the
shelter has no room available, it may be too late to seek
shelter at either BRM facility.
So, even if we credit the City’s evidence that BRM’s
facilities have never been “full,” and that the City has never
cited any person under the ordinances who could not obtain
shelter “due to a lack of shelter capacity,” there remains a
genuine issue of material fact as to whether homeless
individuals in Boise run a credible risk of being issued a
citation on a night when Sanctuary is full and they have been
denied entry to a BRM facility for reasons other than shelter
capacity. If so, then as a practical matter, no shelter is
MARTIN V. CITY OF BOISE 19
available. We note that despite the Shelter Protocol and the
amendments to both ordinances, the City continues regularly
to issue citations for violating both ordinances; during the
first three months of 2015, the Boise Police Department
issued over 175 such citations.
The City argues that Martin faces little risk of prosecution
under either ordinance because he has not lived in Boise since
2013. Martin states, however, that he is still homeless and
still visits Boise several times a year to visit his minor son,
and that he has continued to seek shelter at Sanctuary and
River of Life. Although Martin may no longer spend enough
time in Boise to risk running afoul of BRM’s 17-day limit, he
testified that he has unsuccessfully sought shelter at River of
Life after being placed on Sanctuary’s waiting list, only to
discover later in the evening that Sanctuary had no available
beds. Should Martin return to Boise to visit his son, there is
a reasonable possibility that he might again seek shelter at
Sanctuary, only to discover (after BRM has closed for the
night) that Sanctuary has no space for him. Anderson, for his
part, continues to live in Boise and states that he remains
homeless.
We conclude that both Martin and Anderson have
demonstrated a genuine issue of material fact regarding
whether they face a credible risk of prosecution under the
ordinances in the future on a night when they have been
denied access to Boise’s homeless shelters; both plaintiffs
therefore have standing to seek prospective relief.
B.Heck v. Humphrey
We turn next to the impact of Heck v. Humphrey and its
progeny on this case. With regard to retrospective relief, the
MARTIN V. CITY OF BOISE20
plaintiffs maintain that Heck should not bar their claims
because, with one exception, all of the plaintiffs were
sentenced to time served.7 It would therefore have been
impossible for the plaintiffs to obtain federal habeas relief, as
any petition for a writ of habeas corpus must be filed while
the petitioner is “in custody pursuant to the judgment of a
State court.” See 28 U.S.C. § 2254(a); Spencer v. Kemna,
523 U.S. 1, 7, 17–18 (1998). With regard to prospective
relief, the plaintiffs emphasize that they seek only equitable
protection against future enforcement of an allegedly
unconstitutional statute, and not to invalidate any prior
conviction under the same statute. We hold that although the
Heck line of cases precludes most — but not all — of the
plaintiffs’ requests for retrospective relief, that doctrine has
no application to the plaintiffs’ request for an injunction
enjoining prospective enforcement of the ordinances.
1.The Heck Doctrine
A long line of Supreme Court case law, beginning with
Preiser v. Rodriguez, 411 U.S. 475 (1973), holds that a
prisoner in state custody cannot use a § 1983 action to
challenge the fact or duration of his or her confinement, but
must instead seek federal habeas corpus relief or analogous
state relief. Id. at 477, 500. Preiser considered whether a
prison inmate could bring a § 1983 action seeking an
injunction to remedy an unconstitutional deprivation of good-
time conduct credits. Observing that habeas corpus is the
traditional instrument to obtain release from unlawful
7 Plaintiff Pamela Hawkes was convicted of violating the Camping
Ordinance or Disorderly Conduct Ordinance on twelve occasions;
although she was usually sentenced to time served, she was twice
sentenced to one additional day in jail.
MARTIN V. CITY OF BOISE 21
confinement, Preiser recognized an implicit exception from
§ 1983’s broad scope for actions that lie “within the core of
habeas corpus” — specifically, challenges to the “fact or
duration” of confinement. Id. at 487, 500. The Supreme
Court subsequently held, however, that although Preiser
barred inmates from obtaining an injunction to restore good-
time credits via a § 1983 action, Preiser did not “preclude a
litigant with standing from obtaining by way of ancillary
relief an otherwise proper injunction enjoining the
prospective enforcement of invalid prison regulations.” Wolff
v. McDonnell, 418 U.S. 539, 555 (1974) (emphasis added).
Heck addressed a § 1983 action brought by an inmate
seeking compensatory and punitive damages. The inmate
alleged that state and county officials had engaged in
unlawful investigations and knowing destruction of
exculpatory evidence. Heck, 512 U.S. at 479. The Court in
Heck analogized a § 1983 action of this type, which called
into question the validity of an underlying conviction, to a
cause of action for malicious prosecution, id. at 483–84, and
went on to hold that, as with a malicious prosecution claim,
a plaintiff in such an action must demonstrate a favorable
termination of the criminal proceedings before seeking tort
relief, id. at 486–87. “[T]o recover damages for allegedly
unconstitutional conviction or imprisonment, or for other
harm caused by actions whose unlawfulness would render a
conviction or sentence invalid, a § 1983 plaintiff must prove
that the conviction or sentence has been reversed on direct
appeal, expunged by executive order, declared invalid by a
state tribunal authorized to make such determination, or
called into question by a federal court’s issuance of a writ of
habeas corpus.” Id.
MARTIN V. CITY OF BOISE22
Edwards v. Balisok, 520 U.S. 641 (1997) extended Heck’s
holding to claims for declaratory relief. Id. at 648. The
plaintiff in Edwards alleged that he had been deprived of
earned good-time credits without due process of law, because
the decisionmaker in disciplinary proceedings had concealed
exculpatory evidence. Because the plaintiff’s claim for
declaratory relief was “based on allegations of deceit and bias
on the part of the decisionmaker that necessarily imply the
invalidity of the punishment imposed,” Edwards held, it was
“not cognizable under § 1983.” Id. Edwards went on to hold,
however, that a requested injunction requiring prison officials
to date-stamp witness statements was not Heck-barred,
reasoning that a “prayer for such prospective relief will not
‘necessarily imply’ the invalidity of a previous loss of good-
time credits, and so may properly be brought under § 1983.”
Id. (emphasis added).
Most recently, Wilkinson v. Dotson, 544 U.S. 74 (2005),
stated that Heck bars § 1983 suits even when the relief sought
is prospective injunctive or declaratory relief, “if success in
that action would necessarily demonstrate the invalidity of
confinement or its duration.” Id. at 81–82 (emphasis
omitted). But Wilkinson held that the plaintiffs in that case
could seek a prospective injunction compelling the state to
comply with constitutional requirements in parole
proceedings in the future. The Court observed that the
prisoners’ claims for future relief, “if successful, will not
necessarily imply the invalidity of confinement or shorten its
duration.” Id. at 82.
The Supreme Court did not, in these cases or any other,
conclusively determine whether Heck’s favorable-termination
requirement applies to convicts who have no practical
opportunity to challenge their conviction or sentence via a
MARTIN V. CITY OF BOISE 23
petition for habeas corpus. See Muhammad v. Close,
540 U.S. 749, 752 & n.2 (2004). But in Spencer, five Justices
suggested that Heck may not apply in such circumstances.
Spencer, 523 U.S. at 3.
The petitioner in Spencer had filed a federal habeas
petition seeking to invalidate an order revoking his parole.
While the habeas petition was pending, the petitioner’s term
of imprisonment expired, and his habeas petition was
consequently dismissed as moot. Justice Souter wrote a
concurring opinion in which three other Justices joined,
addressing the petitioner’s argument that if his habeas
petition were mooted by his release, any § 1983 action would
be barred under Heck, yet he would no longer have access to
a federal habeas forum to challenge the validity of his parole
revocation. Id. at 18–19 (Souter, J., concurring). Justice
Souter stated that in his view “Heck has no such effect,” and
that “a former prisoner, no longer ‘in custody,’ may bring a
§ 1983 action establishing the unconstitutionality of a
conviction or confinement without being bound to satisfy a
favorable-termination requirement that it would be
impossible as a matter of law for him to satisfy.” Id. at 21.
Justice Stevens, dissenting, stated that he would have held the
habeas petition in Spencer not moot, but agreed that “[g]iven
the Court’s holding that petitioner does not have a remedy
under the habeas statute, it is perfectly clear . . . that he may
bring an action under 42 U.S.C. § 1983.” Id. at 25 n.8
(Stevens, J., dissenting).
Relying on the concurring and dissenting opinions in
Spencer, we have held that the “unavailability of a remedy in
habeas corpus because of mootness” permitted a plaintiff
released from custody to maintain a § 1983 action for
damages, “even though success in that action would imply the
MARTIN V. CITY OF BOISE24
invalidity of the disciplinary proceeding that caused
revocation of his good-time credits.” Nonnette v. Small,
316 F.3d 872, 876 (9th Cir. 2002). But we have limited
Nonnette in recent years. Most notably, we held in Lyall v.
City of Los Angeles, 807 F.3d 1178 (9th Cir. 2015), that even
where a plaintiff had no practical opportunity to pursue
federal habeas relief while detained because of the short
duration of his confinement, Heck bars a § 1983 action that
would imply the invalidity of a prior conviction if the
plaintiff could have sought invalidation of the underlying
conviction via direct appeal or state post-conviction relief, but
did not do so. Id. at 1192 & n.12.
2.Retrospective Relief
Here, the majority of the plaintiffs’ claims for
retrospective relief are governed squarely by Lyall. It is
undisputed that all the plaintiffs not only failed to challenge
their convictions on direct appeal but expressly waived the
right to do so as a condition of their guilty pleas. The
plaintiffs have made no showing that any of their convictions
were invalidated via state post-conviction relief. We
therefore hold that all but two of the plaintiffs’ claims for
damages are foreclosed under Lyall.
Two of the plaintiffs, however, Robert Martin and Pamela
Hawkes, also received citations under the ordinances that
were dismissed before the state obtained a conviction.
Hawkes was cited for violating the Camping Ordinance on
July 8, 2007; that violation was dismissed on August 28,
2007. Martin was cited for violating the Disorderly Conduct
Ordinance on April 24, 2009; those charges were dismissed
on September 9, 2009. With respect to these two incidents,
the district court erred in finding that the plaintiffs’ Eighth
MARTIN V. CITY OF BOISE 25
Amendment challenge was barred by Heck. Where there is
no “conviction or sentence” that may be undermined by a
grant of relief to the plaintiffs, the Heck doctrine has no
application. 512 U.S. at 486–87; see also Wallace v. Kato,
549 U.S. 384, 393 (2007).
Relying on Ingraham v. Wright, 430 U.S. 651, 664
(1977), the City argues that the Eighth Amendment, and the
Cruel and Unusual Punishments Clause in particular, have no
application where there has been no conviction. The City’s
reliance on Ingraham is misplaced. As the Supreme Court
observed in Ingraham, the Cruel and Unusual Punishments
Clause not only limits the types of punishment that may be
imposed and prohibits the imposition of punishment grossly
disproportionate to the severity of the crime, but also
“imposes substantive limits on what can be made criminal
and punished as such.” Id. at 667. “This [latter] protection
governs the criminal law process as a whole, not only the
imposition of punishment postconviction.” Jones, 444 F.3d
at 1128.
Ingraham concerned only whether “impositions outside
the criminal process” — in that case, the paddling of
schoolchildren — “constituted cruel and unusual
punishment.” 430 U.S. at 667. Ingraham did not hold that a
plaintiff challenging the state’s power to criminalize a
particular status or conduct in the first instance, as the
plaintiffs in this case do, must first be convicted. If
conviction were a prerequisite for such a challenge, “the state
could in effect punish individuals in the preconviction stages
of the criminal law enforcement process for being or doing
things that under the [Cruel and Unusual Punishments
Clause] cannot be subject to the criminal process.” Jones,
444 F.3d at 1129. For those rare Eighth Amendment
MARTIN V. CITY OF BOISE26
challenges concerning the state’s very power to criminalize
particular behavior or status, then, a plaintiff need
demonstrate only the initiation of the criminal process against
him, not a conviction.
3.Prospective Relief
The district court also erred in concluding that the
plaintiffs’ requests for prospective injunctive relief were
barred by Heck. The district court relied entirely on language
in Wilkinson stating that “a state prisoner’s § 1983 action is
barred (absent prior invalidation) . . . no matter the relief
sought (damages or equitable relief) . . . if success in that
action would necessarily demonstrate the invalidity of
confinement or its duration.” Wilkinson, 544 U.S. at 81–82.
The district court concluded from this language in Wilkinson
that a person convicted under an allegedly unconstitutional
statute may never challenge the validity or application of that
statute after the initial criminal proceeding is complete, even
when the relief sought is prospective only and independent of
the prior conviction. The logical extension of the district
court’s interpretation is that an individual who does not
successfully invalidate a first conviction under an
unconstitutional statute will have no opportunity to challenge
that statute prospectively so as to avoid arrest and conviction
for violating that same statute in the future.
Neither Wilkinson nor any other case in the Heck line
supports such a result. Rather, Wolff, Edwards, and
Wilkinson compel the opposite conclusion.
Wolff held that although Preiser barred a § 1983 action
seeking restoration of good-time credits absent a successful
challenge in federal habeas proceedings, Preiser did not
MARTIN V. CITY OF BOISE 27
“preclude a litigant with standing from obtaining by way of
ancillary relief an otherwise proper injunction enjoining the
prospective enforcement of invalid . . . regulations.” Wolff,
418 U.S. at 555. Although Wolff was decided before Heck,
the Court subsequently made clear that Heck effected no
change in the law in this regard, observing in Edwards that
“[o]rdinarily, a prayer for . . . prospective [injunctive] relief
will not ‘necessarily imply’ the invalidity of a previous loss
of good-time credits, and so may properly be brought under
§ 1983.” Edwards, 520 U.S. at 648 (emphasis added).
Importantly, the Court held in Edwards that although the
plaintiff could not, consistently with Heck, seek a declaratory
judgment stating that the procedures employed by state
officials that deprived him of good-time credits were
unconstitutional, he could seek an injunction barring such
allegedly unconstitutional procedures in the future. Id.
Finally, the Court noted in Wilkinson that the Heck line of
cases “has focused on the need to ensure that state prisoners
use only habeas corpus (or similar state) remedies when they
seek to invalidate the duration of their confinement,”
Wilkinson, 544 U.S. at 81 (emphasis added), alluding to an
existing confinement, not one yet to come.
The Heck doctrine, in other words, serves to ensure the
finality and validity of previous convictions, not to insulate
future prosecutions from challenge. In context, it is clear that
Wilkinson’s holding that the Heck doctrine bars a § 1983
action “no matter the relief sought (damages or equitable
relief) . . . if success in that action would necessarily
demonstrate the invalidity of confinement or its duration”
applies to equitable relief concerning an existing
confinement, not to suits seeking to preclude an
unconstitutional confinement in the future, arising from
incidents occurring after any prior conviction and stemming
MARTIN V. CITY OF BOISE28
from a possible later prosecution and conviction. Id. at 81–82
(emphasis added). As Wilkinson held, “claims for future
relief (which, if successful, will not necessarily imply the
invalidity of confinement or shorten its duration)” are distant
from the “core” of habeas corpus with which the Heck line of
cases is concerned, and are not precluded by the Heck
doctrine. Id. at 82.
In sum, we hold that the majority of the plaintiffs’ claims
for retrospective relief are barred by Heck, but both Martin
and Hawkes stated claims for damages to which Heck has no
application. We further hold that Heck has no application to
the plaintiffs’ requests for prospective injunctive relief.
C.The Eighth Amendment
At last, we turn to the merits — does the Cruel and
Unusual Punishments Clause of the Eighth Amendment
preclude the enforcement of a statute prohibiting sleeping
outside against homeless individuals with no access to
alternative shelter? We hold that it does, for essentially the
same reasons articulated in the now-vacated Jones opinion.
The Eighth Amendment states: “Excessive bail shall not
be required, nor excessive fines imposed, nor cruel and
unusual punishments inflicted.” U.S. Const., amend. VIII.
The Cruel and Unusual Punishments Clause “circumscribes
the criminal process in three ways.” Ingraham, 430 U.S. at
667. First, it limits the type of punishment the government
may impose; second, it proscribes punishment “grossly
disproportionate” to the severity of the crime; and third, it
places substantive limits on what the government may
criminalize. Id. It is the third limitation that is pertinent here.
MARTIN V. CITY OF BOISE 29
“Even one day in prison would be a cruel and unusual
punishment for the ‘crime’ of having a common cold.”
Robinson v. California, 370 U.S. 660, 667 (1962). Cases
construing substantive limits as to what the government may
criminalize are rare, however, and for good reason — the
Cruel and Unusual Punishments Clause’s third limitation is
“one to be applied sparingly.” Ingraham, 430 U.S. at 667.
Robinson, the seminal case in this branch of Eighth
Amendment jurisprudence, held a California statute that
“ma[de] the ‘status’ of narcotic addiction a criminal offense”
invalid under the Cruel and Unusual Punishments Clause.
370 U.S. at 666. The California law at issue in Robinson was
“not one which punishe[d] a person for the use of narcotics,
for their purchase, sale or possession, or for antisocial or
disorderly behavior resulting from their administration”; it
punished addiction itself. Id. Recognizing narcotics
addiction as an illness or disease — “apparently an illness
which may be contracted innocently or involuntarily” — and
observing that a “law which made a criminal offense of . . . a
disease would doubtless be universally thought to be an
infliction of cruel and unusual punishment,” Robinson held
the challenged statute a violation of the Eighth Amendment.
Id. at 666–67.
As Jones observed, Robinson did not explain at length the
principles underpinning its holding. See Jones, 444 F.3d at
1133. In Powell v. Texas, 392 U.S. 514 (1968), however, the
Court elaborated on the principle first articulated in Robinson.
Powell concerned the constitutionality of a Texas law
making public drunkenness a criminal offense. Justice
Marshall, writing for a plurality of the Court, distinguished
the Texas statute from the law at issue in Robinson on the
MARTIN V. CITY OF BOISE30
ground that the Texas statute made criminal not alcoholism
but conduct — appearing in public while intoxicated.
“[A]ppellant was convicted, not for being a chronic alcoholic,
but for being in public while drunk on a particular occasion.
The State of Texas thus has not sought to punish a mere
status, as California did in Robinson; nor has it attempted to
regulate appellant’s behavior in the privacy of his own
home.” Id. at 532 (plurality opinion).
The Powell plurality opinion went on to interpret
Robinson as precluding only the criminalization of “status,”
not of “involuntary” conduct. “The entire thrust of
Robinson’s interpretation of the Cruel and Unusual
Punishment Clause is that criminal penalties may be inflicted
only if the accused has committed some act, has engaged in
some behavior, which society has an interest in preventing, or
perhaps in historical common law terms, has committed some
actus reus. It thus does not deal with the question of whether
certain conduct cannot constitutionally be punished because
it is, in some sense, ‘involuntary’ . . . .” Id. at 533.
Four Justices dissented from the Court’s holding in
Powell; Justice White concurred in the result alone. Notably,
Justice White noted that many chronic alcoholics are also
homeless, and that for those individuals, public drunkenness
may be unavoidable as a practical matter. “For all practical
purposes the public streets may be home for these
unfortunates, not because their disease compels them to be
there, but because, drunk or sober, they have no place else to
go and no place else to be when they are drinking. . . . For
some of these alcoholics I would think a showing could be
made that resisting drunkenness is impossible and that
avoiding public places when intoxicated is also impossible.
As applied to them this statute is in effect a law which bans
MARTIN V. CITY OF BOISE 31
a single act for which they may not be convicted under the
Eighth Amendment — the act of getting drunk.” Id. at 551
(White, J., concurring in the judgment).
The four dissenting Justices adopted a position consistent
with that taken by Justice White: that under Robinson,
“criminal penalties may not be inflicted upon a person for
being in a condition he is powerless to change,” and that the
defendant, “once intoxicated, . . . could not prevent himself
from appearing in public places.” Id. at 567 (Fortas, J.,
dissenting). Thus, five Justices gleaned from Robinson the
principle that “that the Eighth Amendment prohibits the state
from punishing an involuntary act or condition if it is the
unavoidable consequence of one’s status or being.” Jones,
444 F.3d at 1135; see also United States v. Roberston,
875 F.3d 1281, 1291 (9th Cir. 2017).
This principle compels the conclusion that the Eighth
Amendment prohibits the imposition of criminal penalties for
sitting, sleeping, or lying outside on public property for
homeless individuals who cannot obtain shelter. As Jones
reasoned, “[w]hether sitting, lying, and sleeping are defined
as acts or conditions, they are universal and unavoidable
consequences of being human.” Jones, 444 F.3d at 1136.
Moreover, any “conduct at issue here is involuntary and
inseparable from status — they are one and the same, given
that human beings are biologically compelled to rest, whether
by sitting, lying, or sleeping.” Id. As a result, just as the state
may not criminalize the state of being “homeless in public
places,” the state may not “criminalize conduct that is an
unavoidable consequence of being homeless — namely
sitting, lying, or sleeping on the streets.” Id. at 1137.
MARTIN V. CITY OF BOISE32
Our holding is a narrow one. Like the Jones panel, “we
in no way dictate to the City that it must provide sufficient
shelter for the homeless, or allow anyone who wishes to sit,
lie, or sleep on the streets . . . at any time and at any place.”
Id. at 1138. We hold only that “so long as there is a greater
number of homeless individuals in [a jurisdiction] than the
number of available beds [in shelters],” the jurisdiction
cannot prosecute homeless individuals for “involuntarily
sitting, lying, and sleeping in public.” Id. That is, as long as
there is no option of sleeping indoors, the government cannot
criminalize indigent, homeless people for sleeping outdoors,
on public property, on the false premise they had a choice in
the matter.8
We are not alone in reaching this conclusion. As one
court has observed, “resisting the need to eat, sleep or engage
in other life-sustaining activities is impossible. Avoiding
public places when engaging in this otherwise innocent
conduct is also impossible. . . . As long as the homeless
plaintiffs do not have a single place where they can lawfully
be, the challenged ordinances, as applied to them, effectively
8 Naturally, our holding does not cover individuals who do have
access to adequate temporary shelter, whether because they have the
means to pay for it or because it is realistically available to them for free,
but who choose not to use it. Nor do we suggest that a jurisdiction with
insufficient shelter can never criminalize the act of sleeping outside. Even
where shelter is unavailable, an ordinance prohibiting sitting, lying, or
sleeping outside at particular times or in particular locations might well be
constitutionally permissible. See Jones, 444 F.3d at 1123. So, too, might
an ordinance barring the obstruction of public rights of way or the erection
of certain structures. Whether some other ordinance is consistent with the
Eighth Amendment will depend, as here, on whether it punishes a person
for lacking the means to live out the “universal and unavoidable
consequences of being human” in the way the ordinance prescribes. Id.
at 1136.
MARTIN V. CITY OF BOISE 33
punish them for something for which they may not be
convicted under the [E]ighth [A]mendment — sleeping,
eating and other innocent conduct.” Pottinger v. City of
Miami, 810 F. Supp. 1551, 1565 (S.D. Fla. 1992); see also
Johnson v. City of Dallas, 860 F. Supp. 344, 350 (N.D. Tex.
1994) (holding that a “sleeping in public ordinance as applied
against the homeless is unconstitutional”), rev’d on other
grounds, 61 F.3d 442 (5th Cir. 1995).9
Here, the two ordinances criminalize the simple act of
sleeping outside on public property, whether bare or with a
blanket or other basic bedding. The Disorderly Conduct
Ordinance, on its face, criminalizes “[o]ccupying, lodging, or
sleeping in any building, structure or place, whether public or
private” without permission. Boise City Code § 6-01-05. Its
scope is just as sweeping as the Los Angeles ordinance at
issue in Jones, which mandated that “[n]o person shall sit, lie
or sleep in or upon any street, sidewalk or other public way.”
444 F.3d at 1123.
The Camping Ordinance criminalizes using “any of the
streets, sidewalks, parks or public places as a camping place
9 In Joel v. City of Orlando, 232 F.3d 1353, 1362 (11th Cir. 2000),
the Eleventh Circuit upheld an anti-camping ordinance similar to Boise’s
against an Eighth Amendment challenge. In Joel, however, the defendants
presented unrefuted evidence that the homeless shelters in the City of
Orlando had never reached capacity and that the plaintiffs had always
enjoyed access to shelter space. Id. Those unrefuted facts were critical
to the court’s holding. Id. As discussed below, the plaintiffs here have
demonstrated a genuine issue of material fact concerning whether they
have been denied access to shelter in the past or expect to be so denied in
the future. Joel therefore does not provide persuasive guidance for this
case.
MARTIN V. CITY OF BOISE34
at any time.” Boise City Code § 9-10-02. The ordinance
defines “camping” broadly:
The term “camp” or “camping” shall mean the
use of public property as a temporary or
permanent place of dwelling, lodging, or
residence, or as a living accommodation at
anytime between sunset and sunrise, or as a
sojourn. Indicia of camping may include, but
are not limited to, storage of personal
belongings, using tents or other temporary
structures for sleeping or storage of personal
belongings, carrying on cooking activities or
making any fire in an unauthorized area, or
any of these activities in combination with
one another or in combination with either
sleeping or making preparations to sleep
(including the laying down of bedding for the
purpose of sleeping).
Id. It appears from the record that the Camping Ordinance is
frequently enforced against homeless individuals with some
elementary bedding, whether or not any of the other listed
indicia of “camping” — the erection of temporary structures,
the activity of cooking or making fire, or the storage of
personal property — are present. For example, a Boise police
officer testified that he cited plaintiff Pamela Hawkes under
the Camping Ordinance for sleeping outside “wrapped in a
blanket with her sandals off and next to her,” for sleeping in
a public restroom “with blankets,” and for sleeping in a park
“on a blanket, wrapped in blankets on the ground.” The
Camping Ordinance therefore can be, and allegedly is,
enforced against homeless individuals who take even the
most rudimentary precautions to protect themselves from the
MARTIN V. CITY OF BOISE 35
elements. We conclude that a municipality cannot
criminalize such behavior consistently with the Eighth
Amendment when no sleeping space is practically available
in any shelter.
III. Conclusion
For the foregoing reasons, we AFFIRM the judgment of
the district court as to the plaintiffs’ requests for retrospective
relief, except as such claims relate to Hawkes’s July 2007
citation under the Camping Ordinance and Martin’s April
2009 citation under the Disorderly Conduct Ordinance. We
REVERSE and REMAND with respect to the plaintiffs’
requests for prospective relief, both declaratory and
injunctive, and to the plaintiffs’ claims for retrospective relief
insofar as they relate to Hawkes’ July 2007 citation or
Martin’s April 2009 citation.10
10 Costs shall be awarded to the plaintiffs.
MARTIN V. CITY OF BOISE36
OWENS, Circuit Judge, concurring in part and dissenting in
part:
I agree with the majority that the doctrine of Heck v.
Humphrey, 512 U.S. 477 (1994), bars the plaintiffs’
42 U.S.C. § 1983 claims for damages that are based on
convictions that have not been challenged on direct appeal or
invalidated in state post-conviction relief. See Lyall v. City of
Los Angeles, 807 F.3d 1178, 1192 n.12 (9th Cir. 2015).
I also agree that Heck and its progeny have no application
where there is no “conviction or sentence” that would be
undermined by granting a plaintiff’s request for relief under
§ 1983. Heck, 512 U.S. at 486–87; see also Wallace v. Kato,
549 U.S. 384, 393 (2007). I therefore concur in the
majority’s conclusion that Heck does not bar plaintiffs Robert
Martin and Pamela Hawkes from seeking retrospective relief
for the two instances in which they received citations, but not
convictions. I also concur in the majority’s Eighth
Amendment analysis as to those two claims for retrospective
relief.
Where I part ways with the majority is in my
understanding of Heck’s application to the plaintiffs’ claims
for declaratory and injunctive relief. In Wilkinson v. Dotson,
544 U.S. 74 (2005), the Supreme Court explained where the
Heck doctrine stands today:
[A] state prisoner’s § 1983 action is barred
(absent prior invalidation)—no matter the
relief sought (damages or equitable relief), no
matter the target of the prisoner’s suit (state
conduct leading to conviction or internal
prison proceedings)—if success in that action
MARTIN V. CITY OF BOISE 37
would necessarily demonstrate the invalidity
of confinement or its duration.
Id. at 81–82. Here, the majority acknowledges this language
in Wilkinson, but concludes that Heck’s bar on any type of
relief that “would necessarily demonstrate the invalidity of
confinement” does not preclude the prospective claims at
issue. The majority reasons that the purpose of Heck is “to
ensure the finality and validity of previous convictions, not to
insulate future prosecutions from challenge,” and so
concludes that the plaintiffs’ prospective claims may proceed.
I respectfully disagree.
A declaration that the city ordinances are unconstitutional
and an injunction against their future enforcement necessarily
demonstrate the invalidity of the plaintiffs’ prior convictions.
In d e e d , an y ti me an ind iv id ua l ch al le nge s t h e
constitutionality of a substantive criminal statute under which
he has been convicted, he asks for a judgment that would
necessarily demonstrate the invalidity of his conviction. And
though neither the Supreme Court nor this court has squarely
addressed Heck’s application to § 1983 claims challenging
the constitutionality of a substantive criminal statute, I
believe Edwards v. Balisok, 520 U.S. 641 (1997), makes clear
that Heck prohibits such challenges. In Edwards, the
Supreme Court explained that although our court had
recognized that Heck barred § 1983 claims challenging the
validity of a prisoner’s confinement “as a substantive matter,”
it improperly distinguished as not Heck-barred all claims
alleging only procedural violations. 520 U.S. at 645. In
holding that Heck also barred those procedural claims that
would necessarily imply the invalidity of a conviction, the
Court did not question our conclusion that claims challenging
a conviction “as a substantive matter” are barred by Heck.
MARTIN V. CITY OF BOISE38
Id.; see also Wilkinson, 544 U.S. at 82 (holding that the
plaintiffs’ claims could proceed because the relief requested
would only “render invalid the state procedures” and “a
favorable judgment [would] not ‘necessarily imply the
invalidity of [their] conviction[s] or sentence[s]’” (emphasis
added) (quoting Heck, 512 U.S. at 487)).
Edwards thus leads me to conclude that an individual who
was convicted under a criminal statute, but who did not
challenge the constitutionality of the statute at the time of his
conviction through direct appeal or post-conviction relief,
cannot do so in the first instance by seeking declaratory or
injunctive relief under § 1983. See Abusaid v. Hillsborough
Cty. Bd. of Cty. Comm’rs, 405 F.3d 1298, 1316 n.9 (11th Cir.
2005) (assuming that a §1983 claim challenging “the
constitutionality of the ordinance under which [the petitioner
was convicted]” would be Heck-barred). I therefore would
hold that Heck bars the plaintiffs’ claims for declaratory and
injunctive relief.
We are not the first court to struggle applying Heck to
“real life examples,” nor will we be the last. See, e.g.,
Spencer v. Kemna, 523 U.S. 1, 21 (1998) (Ginsburg, J.,
concurring) (alterations and internal quotation marks omitted)
(explaining that her thoughts on Heck had changed since she
joined the majority opinion in that case). If the slate were
blank, I would agree that the majority’s holding as to
prospective relief makes good sense. But because I read
Heck and its progeny differently, I dissent as to that section
of the majority’s opinion. I otherwise join the majority in
full.
Resolution No. 18-84
Page 1 of 2
ATTACHMENT F
RESOLUTION NO. 18-84
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF TUSTIN
DECLARING THE NECESSITY OF THE IMMEDIATE EXPENDITURE OF
PUBLIC MONEY TO CONVERT CITY-OWNED STRUCTURES INTO
SHELTER FOR THE HOMELESS PURSUANT TO PUBLIC CONTRACT
CODE § 20168; AND DELEGATING AUTHORITY TO ORDER ACTION IN
FURTHERANCE OF SUCH CONVERSION PURSUANT TO PUBLIC
CONTRACT CODE § 22050(b)(1))
The City Council of the City of Tustin finds:
WHEREAS, in enacting Public Contract Code § 20168, the members of the
California Legislature have recognized that general law cities are not required to comply
with the competitive bidding requirements set forth in the Public Contract Code when the
legislative body of such cities passes a resolution by a four-fifths vote of its members
declaring that the public interest and necessity demand the immediate expenditure of
public money to safeguard life, health, or property;
WHEREAS, the most recent Point in Time Count found that 69 persons within the
City of Tustin are homeless and living without shelter;
WHEREAS, the City of Tustin has found that the health and safety of unsheltered
persons in the City is threatened by a lack of shelter;
WHEREAS, the City has declared that a “shelter crisis” pursuant to Government
Code § 8698.2 exists in the City of Tustin and has authorized the City’s participation in
the Homeless Emergency Aid Program set forth as part of SB 850 and the 2018-2019
Budget Act (Chapter 48, Statutes of 2018);
WHEREAS, as part of its participation in the Homeless Emergency Aid Program,
the City of Tustin intends to convert existing City-owned structures into shelter for
homeless individuals;
WHEREAS, the City of Tustin finds that the public interest and necessity of
converting City-owned structures into a homeless shelter demand the immediate
expenditure of public money to safeguard the life, health, or property of unsheltered
persons;
WHEREAS, the City of Tustin finds, based on substantial evidence, that the
emergency necessitating the conversion of City-owned structures into a homeless shelter
will not permit a delay resulting from a competitive solicitation for bids, and that such
conversion is necessary to respond to the emergency.
Resolution No. 18-84
Page 2 of 2
NOW , THEREFORE, BE IT RESOLVED by the City Council of the City of Tustin
that 1) the public interest and necessity of converting City-owned structures into shelter
for homeless individuals demands the immediate expenditure of public money to
safeguard life, health, or property pursuant to Public Contract Code § 20168; and 2) the
authority to order action in furtherance of the conversion of City-owned structures to a
homeless shelter is delegated to the Public Works Director pursuant to Public Contract
Code § 22050(b)(1).
PASSED AND ADOPTED at a regular meeting of the City Council of the City of
Tustin held on the 6th day of November, 2018.
ELWYN A. MURRAY
Mayor
ATTEST:
______________________
ERICA N. YASUDA
City Clerk
STATE OF CALIFORNIA )
COUNTY OF ORANGE ) SS
CITY OF TUSTIN )
I, Erica N. Yasuda, City Clerk and ex-officio Clerk of the City Council of the City of Tustin,
California, do hereby certify that the whole number of the members of the City Council is five;
that the above and foregoing Resolution No. 18-84 was duly and regularly passed and
adopted at a regular meeting of the City Council held on the 6th day of November, 2018 by
the following vote:
COUNCILPERSONS AYES:
COUNCILPERSONS NOES:
COUNCILPERSONS ABSTAINED:
COUNCILPERSONS ABSENT:
ERICA N. YASUDA
City Clerk