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Ministerial Review
Ben Noble:  Form-Based Code presentation
June 29, 2022 – Part 3

This is a 14 minute section of the full 1 hour and 20 minute presentation. I consider the full June 29, 2022, presentation to be a “must-read” article for everyone who is interested and involved in the Gateway Area Plan. The full article was put on Arcata1.com two years ago, on July 12, 2022. The full article can be viewed and listened to here.

Note:  The text, transcription, and opinions in this article were originally written in July, 2022.

Opinion:  This presentation should have been scheduled and the information made available to the Planning Commission, the City Council, and the public three or four months ago, [That would have been in early 2022] at a more appropriate point in the ongoing Gateway process. That would have given us ideas and answered endless questions, and have moved us much further along in the creation of a good plan for Arcata. But no sense in crying of the spilt milk of the past, right?  Except that it’s yet another example of how our own City Staff has hampered and stymied and, in my view, harmed this Gateway process.

I would have thought that Community Development Director David Loya would have brought up “Option Three” of the ministerial review, which includes public input and Planning Commission review.  But he did not.  Possibly because he did not want to remove the confusion at the Planning Commission level and with the public, or possibly because he did not know himself.

The audio track here has been enhanced for clarity.  All the diagrams, drawing, photos, and examples from the original Zoom recording are included here.

• A great resource on Form-Based Code:  Ben’s presentation is clear, complete, and for the most part easy to understand.  There is a lot of information here, and he presents it well.  Thank you, Ben!
• Ministerial review:  From the beginning, Community Development Director David Loya has been making a case for what he referred to as Ministerial Review. That is, as he spoke of it:  Projects would be reviewed by one person, the Zoning Administrator (i.e. David Loya) and there would be no public input.  The Planning Commission, as might be expected, was in favor of what was termed “Discretionary Review” — a process of public input and Planning Commission review. There are articles on this website that speak to this difference of viewpoint.

The problem, evidently, is that none of us were using the phrases “ministerial review” and “discretionary review” correctly — not David Loya, not the Planning Commission members, and not myself.  In this presentation, Ben Noble establishes three options for ministerial review. And “Option Three” does include public input and Planning Commission review.  

• There are BIG aspects of this presentation that I have issues with. This are covered in other articles on the Arcata1.com website here. Ben seems to be skilled and talented — and he MUST be given the right input so he can write a Form-Based Code that expresses the will of the community.  Some of the Form-Based Code in the other communities he provides as examples are just terrible (in my view) — such as the Meriam Park development in Chico. People may disagree with this statement:  A code that makes it easy for developers is generally not so beneficial to the community.

To quote a friend, a Grammy-winning musician who regularly travels around the country and around the world: “Have you ever noticed that in the places where they make it good for the developers, it’s usually not so good for people?”

This transcription is believed to be an accurate rendition of what was said.  Any discrepancies between what was spoken and what is written here are unintentional and are not believed to alter the intent or meaning of the speaker.  Many of the “uh” and “you know” and “um” and “And so” words have been removed.  Some sub-headings have been added.

If you see errors in the transcription, please write — using the Contact Us page or to Fred at this website: Arcata1.com.
Your help in making this website better is appreciated.

The transcript is in black text. Highlights have been added as bold highlights. Notes have been added in Green and comments have been added in Red.  The comments and opinions are those of the author and are not presented as fact, but as opinion.

Ben Noble:  Form-Based Code presentation
June 29, 2022

Part 3:  Permit Requirements

Starting from 54:50 on the original presentation.

Another part of the Form-Based Code would be permit requirements. And that takes us to the third and final part of this presentation. And it has its own part in this presentation because it’s particularly important. It’s a particularly important part of the code. And it’s also particularly important for our decision making on how to proceed with the code. So the permit requirements will influence the contents of the Form-Based Code, and our general approach that the code takes to regulating development in the Gateway. So we’re very interested in public thoughts on this subject. We’re also interested in obtaining Planning Commission and City Council thoughts on the subject when we reach that point.  But we wanted to talk to you today a little bit about our thinking on this.

So I’m going to speak first about State law considerations and just describe our recommended Ministerial Process, and then go through a couple of different options for how this process could work.

So, as I mentioned previously, State law, the Housing Accountability Act, it’s been around for a while but it was recently strengthened. And for a long time cities in California were pretty much ignoring this law. Most people didn’t even know that it existed. Nobody was enforcing it. But as the housing situation in California got more problematic in terms of costs and affordability, the legislature strengthened the law and added new enforcement mechanisms.

56:16
So what the Housing Accountability Act does, as I mentioned previously, is that it says cities must approve multi-family and mixed-use residential projects that are consistent with objective standards, unless the project would have a specific adverse impact on the public health or safety. And cities may not deny a project or reduced the proposed density on the basis that the project conflicts with the subjective requirements.

So, essentially, if a project comes forward, and this project is consistent with all objective standards, whether the standards are within the Zoning Code or the General Plan or a Specific Plan, or design standards document — If the project is consistent, the city cannot deny it, cannot reduce the density unless it makes this finding a written finding based on the preponderance of evidence, which is a high bar to hurdle. And as I mentioned previously, the State agency Housing Community Development, as well as the State Attorney General’s Office, is actively enforcing on this law. And it’s really interesting to me to see how within just a couple of years, particularly in the Bay Area, there’s been such a focus and emphasis on what the HAA [Housing Accountability Act] requires, within the acknowledgement recognition that cities must comply. And it’s a law that is actively in force, not only by State agencies, but community organizations that are participating in the planning and entitlement process.

58:06
So given that is the framework that cities have to all have to operate in, in terms of State law, our recommendation is that the City only use objective standards to approve or deny a proposed multi-family or mixed-use residential project within the Gateway area. And when making this decision, the City would not consider project compliance with subjective requirements such as Design Review findings.

But the City can consider subjective requirements to make non-binding recommendations to an applicant. And this may seem radical, and this may seem extreme, but it’s actually more or less what State law is already requiring Arcata and other cities to do. So remember, HAA requires cities to approve a project if it’s consistent with objective standards unless this very difficult finding can be made. It does not allow the City to deny a project based on subjective requirements. So this Ministerial process, in many ways, is very consistent with what is already required by state law.

59:37
So with this Ministerial process there are a number of different options for how the process can occur. I’m going to describe three general approaches. The first being Over the Counter and the second being Zoning Administrator decision at a public meeting, and the third being Planning Commission decision at a public meeting.

[Note: In a small city like Arcata, it is typical that the position of Zoning Administrator is assigned to the Planning Department head, or, in our case, the Community Development Director, currently David Loya.  It is also my understanding that the Zoning Administrator (or Community Development Director) can have another person as the Assignee, to take the place of the Zoning Administrator, either for a period of time, for a group of projects, or for a single project.  That is, in our case, David Loya could assign a specific project to, say, Senior Planner Delo Freitas, and she would be the single person responsible for approving or denying the project.]

Approval Option 1:  Over-the-Counter Process

1:00:05
With Option 1, you might think of this as an Over the Counter process. Planning staff would review the proposed project and would approve a zoning certificate for the project if it’s consistent with objective standards. There would be a public notice, but it would be a notice of Pending Decision so neighbors and the public could come to the Planning Department, look at the plans, and provide comments on the project. But there would be no public hearing. When staff makes the decision, either to approve the project because it’s consistent with standards or to deny it because it’s inconsistent, there would be the opportunity for an interested party to appeal to the Planning Commission, but the subject of that appeal would be limited to the determination of project conformance with objective standards.

[Note: In Arcata, the notice would go to neighbors within a radius of 300 feet – other means of notice are optional.  How about having any Gateway area notice be posted on the City’s website, and sent to interested parties by e-mail… as being mandatory?]

1:01:38
Here’s a diagram that sort of summarizing what that process might look like. An applicant would submit the project; City staff would review the project for compliance with submittal requirements as well as objective standards; there would be a checklist of what the standards are, so that both the applicant, the City and the public know, in advance, what the project needs to comply with. There would be a public notice of a pending decision. And then the Zoning Administrator would make the decision, subject to appeal.  Once the appeal period ends, the applicants could submit a building permit for the project.

So there are Form-Based Codes that incorporate a Ministerial Over the Counter approval.

And one of the best-known ones is the code for the Central Hercules plan, which has been around a while, that was one of the sort of early Form-Based Codes in California. With this plan for projects that are an allowed use and are consistent with standards the department staff would approve the application within 10 working days.

1:01:57
Another example of a Form-Based Code Over the Counter approval is in the city of Ventura. Ventura is a city that has enthusiastically embraced Form-Based Codes. They have Form-Based Codes for a lot of different areas in the city. And all of these codes include a provision where there are defined building types subject to specific standards, and if an applicant proposes a building type, consistent with those standards, it is exempt from what they call “planning permit” and could be approved by-right through a Ministerial, essentially Over the Counter.

Approval Option 2:  Zoning Administrator Public Meeting

1:02:40
Okay, so the next option for how a Ministerial process can work, there could be more of a public process with the Zoning Administrator holding a meeting. So, again, the Zoning Administrator would focus his or her review on project conformance with the objective standards, but will make this determination at the noticed public meeting. At this meeting residents would have the opportunity to provide comment on the project. But action on the project would be limited to whether or not the project conforms to objective standards — that would be the sole basis to approve or deny the application. So this would need to be made very clear to the public that when acting on the product, the City can only consider a conformance to objective standards when making a decision on the project. And like with Option One, the Zoning Administrator decision could be appealed to the Planning Commission.

Approval Option 3: Planning Commission Public Meeting

The third option for the Ministerial process is similar to Option Two, but with the Planning Commission being the decision-maker on whether or not the project conforms to the objective standards. So like with Option Two, there’d be a notice public notice of a Planning Commission meeting and pending decision and residents would have the opportunity to provide comment at this meeting. But again, project conformance with objective standard would be the sole basis to approve or deny the application, with the Planning Commission decision being appealable to the City Council.

There are cities who do something like Option Three that I’m aware of, in the context of SB 35 applications. As I mentioned previously, SB 35 is a State law where an applicant can request a streamlined Ministerial approval of the project if it incorporates affordability requirements, if it is consistent with all objective standards, it meets other eligibility requirements. And so what some cities do is that they provide for a public forum for the consideration of whether or not the SP 35 application is 1) an eligible project, and 2) is it consistent with all objective standards. And it allows for increased transparency, it allows for increased public awareness that that development is occurring, and allows for a public assessment of project conformance with an objective standards. I’m aware of one such process in Benicia, where I do a lot of work. And actually, tomorrow night, there is one such meeting of SB 35, the Oversight Committee for an SP 35 application. So this kind of process is something that you do see, but more within the context of SP 35 applications.

A couple of final thoughts on the advantages of a Ministerial process. I understand that there have been community questions about the Ministerial process, I think, reasonable concerns about the City losing the opportunity to evaluate, to exercise discretion on development projects on a case-by-case basis. Our assessment of this is that the Ministerial process is preferable because it reflects better what the City can and can’t do under the Housing Accountability Act. We’re concerned that continuing with the existing Design Review process for the Gateway area will generate frustration for neighbors who will be asking the City to exercise discretion that it actually does not have. And we think that it’s preferable to work with the public at the front end, to establish objective standards into approved project Ministerially upon finding that they conform to the standards.

Opinion

[Note:  “We’re concerned that continuing with the existing Design Review process for the Gateway area will generate frustration for neighbors who will be asking the City to exercise discretion that it actually does not have.” 

First off, we are not intending on continuing with the current Design Review process. I propose that any notion you may have heard on that is false. 

1: This is not necessarily a black-and-white situation. Within the objective standards of a Form-Based Code, there is room for interpretation. In an ideal FBC, two people looking at it would come to the same conclusion. But without seeing the code that is proposed, and without knowing how a FBC that we incorporate will be applied – and will evolve – into the future, we cannot now know how much interpretation will exist.  Ideally, very little interpretation or discretionary review.  In practice that may not be the case.  We can understand what we have discretion over and what we do not.  We’re concerned about public input in those areas where there is discretion – possibly because the FBC is not sufficiently clear or for whatever reasons, and with the impropriety of leaving that discretion in the hands of a single person.

2) “…will generate frustration for neighbors…” How about letting us figure out what is frustrating for us?  With the appropriate clarity and awareness of the process, we as citizens can figure out what areas of choice are available to us and what areas are not. Yes, there may be some frustration among our citizens. And there will be other citizens here to explain to them how the objective standards do work and are applicable. Taking a choice away because it “will generate frustration” is not recognizing that we can have a wise and informed community here. If a developer presents a good project that meets objective standards and is of benefit to the community, it will be approved, I maintain.

3) “I understand that there have been community questions about the Ministerial process.”  Well, to put it bluntly, we were presented with Option One – Zoning Administrator review with no public input and no Planning Commission review – as being what the “Ministerial Review” process is.  We were not presented with Option Three, not one little bit. 

In fact, what Ben Noble is calling “Ministerial Review, Option Three” was called here, over these past seven months, as Discretionary Review.  We’ve been told that there would be no public input and that projects would not come before the Planning Commission.  I brought up that, in the Redwood City Downtown Precise Plan, projects over a certain size come before the Planning Commission, and they call that Discretionary Review.  Many jurisdictions call that Discretionary Review. 

But as Ben Noble points out here, if the Form-Based Code contains appropriate objective standards then any well-made project will sail through any review process because it meets objective standards.  And that is just what a Principal Planner at Redwood City told me: They have public comment and Planning Commission review on all medium and large projects, and either the project is quickly approved – because the developer has done the necessary homework, and understands the Code and what the city is looking for – or else it is quickly denied, and it’s back to the drawing board for the developer. Very simple.]

So we’re really interested in having the community conversation about the permitting process and the Ministerial option. And your input on that subject, as well as everything that I presented tonight, and the additional outreach work that we’ll be doing is needed, it’s necessary, and it’s appreciated. And there’s going to be a number of opportunities to participate, including an upcoming City Council / Planning Commission joint study session, and community workshops and a range of different online engagement opportunities to make it easier for everybody to participate in this process. So with that, I will end my presentation. I really look forward to hearing your questions. I will hand it back over to David.

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