[Note: This article was written in May, 2022. After this article was written, the Ben Noble presentation on Form-Based Code on June 29, 2022, introduced the notion that there are THREE options of “ministerial review” — one of which is indeed Planning Commission and public input review in according to the direction of the Form-Based Code. In other words “Ministerial Review” does not necessarily mean review by a single person.

From the start of the discussion about “Ministerial Review” the Community Development Director, David Loya, insisted on referring to ministerial review as though it meant single-person Zoning Administrator review.

Ben Noble presented three options for ministerial review. And “Option Three” does include public input and Planning Commission review.  

For more, see the Form-Based Code and Ministerial Review overview page on Arcata1.com.]

What is “Ministerial Review” ?

The Gateway draft plan has brought up strong discussions about whether Ministerial Review is appropriate or beneficial — or necessary — for Arcata.  “Ministerial Review” involves a project being approved by one person, typically the Zoning Administrator, the Community Development Director, or a person assigned to that job. It’s an alternative to “Discretionary Review,” which involves public input and approval by the Planning Commission (and, prior to its dissolution in March 2020, Design Review Committee approval).

With Ministerial review, the project would need to conform to the codes in place (ideally, a community-appropriate Form-Based Code), but ultimately it would be one person making that determination.  One point of view is that developers do not want to go through a lengthy, costly (to them), and potentially unproductive review process.  If the process is difficult for developers, they just won’t want to build here — or so the theory goes.

To quote a friend, a touring 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?“

Is it one or the other?  Or could there be a blend?

Ministerial review and Discretionary (i.e. Planning Commission) review are not mutually exclusive. For example, in Redwood City’s Downtown Precise Plan, Ministerial review is used for construction below a certain size and Planning Commission review for everything above that size.  Translated into Arcata-sized numbers, it could be, say that two stories or less would have Ministerial review.  Or, perhaps, everything should have Planning Commission review.

I have corresponded and spoken with one of the principal planners on staff at Redwood City. (In addition to their Community Development head, their Planning Department has 6 “Principal Planners” and 3 “Senior Planners” — plus 4 people on GIS staff

What’s behind the need for Ministerial review?

The Village project was a multi-building development to be located at the site of the Craftman’s Mall, off of St. Louis Road on the west side of 101 (to the south of the L.K. Wood overpass). In June, 2019, after about 1-1/2 years of many public meetings, multiple Planning Commission meetings, and multiple City Council meetings, the Council gave the project a go-ahead. The developer told the City, 11 months later, that they would not be building the project.

Community Development Director David Loya has repeatedly pointed to the fate of the Village project as an example of the dysfunction of the Arcata’s current system and the need for Arcata to adapt a Form-Based code with ministerial review for the 138-acre Gateway plan. He has insisted that a Form-Based code and ministerial review process is necessary so that future developers are not potentially subjected to a lengthy, expensive, and ultimately unproductive process such as was seen on the Village project.

We believe that it was NOT the lengthy review process that had the developer pull the plug on the Village project. Yes, it was time-consuming and expensive for them, but that was not the reason. For further reading, see the article “The Village Project: What went wrong?“

Here’s an assortment of comments related to Ministerial review vs. Public Comment and Planning Commission review.
Commentary is in Red.

Ann King Smith
Former Chair, Arcata Planning Commission
Speaking in public comment at the January 14, 2022 Planning Commission meeting

And the last thing I’d like to ask the Commission to consider is the form-based and streamlined development standard, where essentially you think you can get enough standards so you can have ministerial approval of projects which means there’s no public input, there’s no Planning Commission review, there’s no City Council review.

And you’re getting a cookie cutter to try and get projects, which does streamline them but then you’re not doing planning and you’re not learning ….

Planning Commission Vice-Chair Judith Mayer

From the April 12, 2022, meeting of the Arcata Planning Commission:
More of the transcription on this website here.
The video of the meeting is here.  [Note: These links may change.]

1:24:10 on the video

Thank you very much [to David Loya] for your explanation.

I would just like to add, or counter a little bit, that Form-Based Codes are not mutually exclusive from Discretionary Review.  In fact, the exemplary Form-Based Codes that you suggested we read – and I’ve actually been teaching about one of those for a while in a university course — both have extensive Discretionary Review involved as well as some aspects that can be ministerially approved based on standards in the Form-Based Code by a Development Director or a Zoning Code Administrator. 

But I think the way that you’re presenting this is as either/or.  It is actually quite misleading.

 

These things are not mutually exclusive.

 

But I think the way that you’re presenting this is as  either/or.  It is actually quite misleading.  In the examples that you put before us, those particular examples actually counter this sense of these two options being mutually exclusive, at opposite ends of a decision-making process.

I think that Arcata can develop a robust Form-Based Code through a community process that also still has a place for the Planning Commission and the City Council to have discretion over certain aspects of approval, especially for the largest projects, new types of projects, and projects with really unique characteristics. And I would appreciate going forward with that in mind rather than with the idea that Discretionary Review is somehow anathema to adopting a progressive and robust and participatory Form-Based Code. These things are not mutually exclusive.

And I think there are many of us here who are not really willing to give up some Discretionary Review in order to serve the speedy decision-making needs of major developers.

[Note:  Redwood City, California, developed a strong Form-Based Code as part of their 2011 “Downtown Precise Plan.”  Their plan is regarded as very successful.  It includes both Form-Based Code and a ministerial / discretionary review split.  As Dr. Mayer points out, the two are not mutually exclusive.]

Planning Commission Vice-Chair Judith Mayer

I am concerned at the idea of a ministerial approval for any project larger than any project we’ve seen in Arcata today.

From the February 8, 2022, meeting of the Arcata Planning Commission:
More of the transcription on this website here.
The video can be viewed on YouTube, link here. [Note: These links may change.]

And finally, I guess, I am concerned at the idea of a ministerial approval for any project larger than any project we’ve seen in Arcata today. No matter how carefully the development standards and the Zoning Code for a plan like this will be crafted, there’s going to be an opportunity for developers of huge projects to do things that we hadn’t anticipated. And by offering, by putting our hands out and offering a ministerial approval for such huge projects, we’ve closed the door on the ability of the community to continue to say “Oh yeah, we haven’t thought of that.” And we’re stuck. We would be legally stuck.

From the May 24th, 2022, meeting of the Arcata Planning Commission — six weeks following the above April 12th meeting.
More of that meeting is on this website here.

Click on the Play triangle on the video below.  The video will start where Planning Commission Vice-Chair Judith Mayer is speaking.

Planning Commission Vice-Chair Judith Mayer
2:33:36
Some other timing clarifications that I’d really appreciate is that there are a number of sections that we simply can’t make sense of without at least some discussion and proposals for the Form-Based Code associated with them.

Streetscape is one of those. And I think that if we are going to commit to reviewing in detail the draft plan elements that are before us — to do that without proposals about the Form-Based Code that would implement them would not mean a whole lot.

2:34:26
And perhaps it’s an opportunity for us to suggest what that Code should contain — if staff doesn’t have a draft of Code language to present to us.
. . .

2:35:15
And I think that suggesting what we would like to see, asking the public to suggest what they would like to see at that time could be the only way that we can really address this issue without having draft code language before us.

…. if that is the time when the details of the Form-Based Code would be available for us to discuss?

But I am wondering if at the time when — the schedule on our packet today indicates Design for three sessions — if that is the time when the details of the Form-Based Code would be available for us to discuss?

What was your vision for what those Design sessions would be?

David Loya  
2:35:49
Yeah, my hope is that at that point we will be in the middle of doing some community Design work outside of the Planning Commission and so through stakeholder engagements and a couple of other sort of dispersed format – you know, YouTube with survey — that we’re hoping to work on that. We’d be able to bring that in in connection with the Design element within the Gateway, start to bring some of that information back.

I feel like the Design — which includes building height — is one of the topics that’s generated the most interest out there in the community.

. . .

I cannot commit at this point to having a Form-Based Code or having any components of that.

And I fully recognize I ran out of time to present a staff report and we ran out of time to discuss it so this this absolutely needs to come back probably, in partnership with that, Design.

2:36:55
I cannot commit at this point to having a Form-Based Code or having any components of that.

2:37:01
Frankly, the direction that we’ve received to date is to create a Form-Based Code. But due to the public discourse and some of the comments that are being made, I think it’s wise for us to ensure that we — the Planning Commission — has a strong recommendation that we, you know, move forward with the Form-Based Code, understanding exactly what those elements are.

And that we have the backing of the City Council.  The City Council wants to move forward with the Form-Based Code, understanding what the parameters are, before throwing good money after bad.  Perhaps going down the route of a Form-Based Code and then realizing, well, actually this this jurisdiction isn’t really ready for one or doesn’t want one or whatever the case may be.

It seems that David Loya is blaming “this jurisdiction” – meaning Arcata — as perhaps “isn’t really ready” for a Form-Based Code.  David Loya is the Community Development Director.  He can tell us his views, based on his professional opinions, and his beliefs. That does not mean that the Planning Commission will agree.

And – this is important – I haven’t heard anything about us not wanting a Form-Based Code, or that our community “doesn’t want one…”  Not at all — and quite the contrary. I have heard that we are looking forward to seeing a Form-Based Code.   

[It seems, once again, that David Loya is confusing the aspects of Ministerial Review versus Discretionary (i.e. Planning Commission) Review with whether or not we want to have a Form-Based Code.  They are separate entities, and require separate decisions.  

If Redwood City can have a Form-Based Code with Discretionary (Planning Commission) Review, then so can we.  They have 12 years of FBC with Discretionary Review under their belt – successfully.

However, David Loya may be correct about this “jurisdiction” not being ready for — or wanting — Ministerial Review.  Fortunately for us, the success of a Form-Based Code is not dependent on Ministerial Review.  The success of a Form-Based Code is based on having an excellent Code.  And an excellent Code takes time to prepare and review.]

. . .

Commission Vice-Chair Judith Mayer
2:41:06
I do understand that the ideal Form-Based Code might be one in which little Planning Commission discretion would be involved. 

Without that I’m not willing to say that we should give up any of the responsibility for case-by-case review of projects.

But to the extent that any Ministerial approvals would come out of that Form-Based Code I think that the Planning Commission needs to be heavily involved in making the policies which we will then entrust to staff to implement.

2:41:30
Without that I’m not willing to say that we should give up any of the responsibility for case-by-case review of projects.

[Meaning:  Unless the Planning Commission is thoroughly involved in the creation and review of the Form-Based Code, the Planning Commission should not give up case-by-case review of projects.]

Arcata Community Development Director David Loya seems to adamantly believe that: 1) Without ministerial review in place, then developers simply won’t want to build in Arcata; and 2) If we’re not going to have ministerial review, then we might as well stop the process of developing a Form-Based code.  He regards efforts in developing a Form-Based code and then coupling it with Planning Commission review as “investing in uncertainty.”

“If we are going to allow future decisions to affect the outcomes, then there is really no purpose to investing in uncertainty.”

David Loya
Arcata Community Development Director
From written correspondence, May 24, 2022. 

Question:

I’ve said this before: I think full ministerial review will never be accepted. A two-tiered approach might work. I also think that acknowledging this sooner rather than later will help but that’s your call, not mine. [See the April 11, 2022, correspondence in this article, here.]

His response:

David Loya:
If the Council does not wish to pursue a ministerial FBC [Form-Based Code], then my recommendation will be to abandon the FBC altogether.

We can stamp our feet and say we want local control all day long. But the state is going to force our hand to resolve the housing crisis. Our absolute best approach to maintaining local control is to work as a community to develop objective form-based design criteria that principally permits the kind of development we want to see. I will continue to present this option [i.e. Form-Based Code] to the Council as the best interest of the city and its residents/business owners based on my professional knowledge and opinion.

Sometimes the right thing is not the popular thing. But I’m hoping that folks will start to embrace the community design process and get on board with the idea that we can have more control by designing it now. If the Council does not wish to pursue a ministerial FBC [Form-Based Code], then my recommendation will be to abandon the FBC altogether.

David Loya
Arcata Community Development Director
From the April 12, 2022, meeting of the Arcata Planning Commission,
prior to the comment from  Planning Commission Vice-Chair Judith Mayer (above).
Transcript here.

Time on the video:  1:18:50

Again I’ll point to the Village project as an object lesson. You could love the Village project, you can hate the Village project, but just looking at it as an object lesson.  They spent hundreds of thousands of dollars redesigning that project, at least seven times.  They went through 17 public hearings to get to a point where their project was so watered down that the major funding backer to the project backed out. They said “I’m done with this project.”

[Note: This is a complete mischaracterization of what happened. What Mr. Loya has said here is, essentially, a falsehood. His version does support his position, but unfortunately his version is not factually accurate. The Village project was abandoned likely for the reason that the enrollment at Humboldt State University dropped from roughly 8,500 to 5,500. If the project had been economically feasible, it would have been built. For further reading, see the article “The Village Project: What went wrong?“]

So if we have a public review process that that relies on that sort of public engagement on a project-by-project basis we are not going to have development in this community. People are going to be so averse to coming to this community and going through that process — the holding costs, the risk is so high — that we’re just not going to get any takers.

[continuing]
1:21:35

Certainly, we can we can add elements to it that would involve some public participation. I would caution the decision makers from going too far in that direction, responding to the fear now that we don’t know what someone will bring to the community.

Recognizing we’re going to go through a community design process, number one, and number two, recognizing that we, by investing in a new process after we’ve gone through this process, doesn’t create that certainty.

And so it’s okay to say we don’t want to create the certainty, it’s just that if that’s the decision then we should stop doing this and just do something else that says — that goes back to a more traditional model.

We can still go mixed-use, we can still say we want high density, we can still say that we want a maximum of X stories, we can even go through a process and do a little bit of design work so that we know generally what we’d like to see that goes into a little bit more depth of the design work we have now.

David Loya:
But what I would caution against is going the next step and saying:  And then we’re going to have Discretionary Review of these projects.

 

If we’re going to put that investment in now, then we need to include a significant streamlining component to it that allows those developers to actually bring to us what we’ve asked for.

But what I would caution against is going the next step and saying:  And then we’re going to have Discretionary Review of these projects.

If we’re going to develop a streamlined process, if we’re going to go through a community design now, if we’re going to put all the money and time and energy that it takes to create this really robust vision for the future that we can all understand — we may not all agree, I don’t want anybody to walk away from here thinking that we’re all going to agree, but we’ll all understand what the future could look like.
If we’re going to put that investment in now, then we need to include a significant streamlining component to it that allows those developers to actually bring to us what we’ve asked for.

David Loya
Arcata Community Development Director
From written correspondence, April 11, 2022.  The day before the April 12, 2022 Planning Commission — extracts printed above.

Question to David Loya:

Ministerial vs Review process: The Redwood City Downtown Precise Plan was adopted in January 2011 and was amended in 2012, 2013, and 2016. In one change, there was designated commercial space used as office space, thus changing the intended pedestrian experience, etc. so a change was made to incentivize retail use — in other words, the intent of the original design was being essentially circumvented, so an amendment was made to bring that back to the original intent.

In February 2016 — about 5 years after the plan was in place — the City Council directed staff to consider amendments to the Downtown Precise Plan to require Planning Commission review of new development over 3 stories or 35 feet, or over 30,000 sq.ft. of construction. The Zoning Administrator could also refer projects to the Planning Commission. This was passed in November 2016.

It seems that in the Redwood City Precise Plan, there is a form-based code that requires Planning Commission review — not ministerial review. It also would seem that for five-plus years there may not have been Planning Commission review specified in their plan.  Or perhaps it was required for the over-30,000 sq ft projects. We’d have to contact people at Redwood City to ascertain this. [Note:  This was not the case:  Redwood City had  a split of ministerial and discretionary review from the beginning.  They changed the criteria by which one or the other is used.]

For us here in Arcata, as an example, the “Sorrel Place” project is approx 38,000 sq feet. If it was desired, the sq ft required for PC review could be decreased here in Arcata to, say, 20,000 sq ft or 15,000 sq ft. — Sorrel Place has 44 units, so a 15,000 sq ft building might be 18 units, if the units were a similar proportion of 1-3 bedrooms. Or the trigger for PC might be number of units and/or sq ft — anything over 15,000 sq ft or over 12 units.

David Loya:
In my professional opinion, the effort involved in developing a form-based code is lost on discretionary review.

You have expressed the necessity of ministerial review. I regard ministerial review to be a “hard sell” for both the Planning Commission and the public. It would appear that Redwood City has achieved an in-between that works for them.

David Loya’s response:

Thanks for the input. In my professional opinion, the effort involved in developing a form-based code is lost on discretionary review. There are definitely models for limited review or noticing when a project is proposed under the plan.

David Loya
Arcata Community Development Director
From written correspondence, March 11, 2022.  A month earlier than above.

Question to David Loya:

There are people who object to the notion of ministerial approval, and want to have public comment and Planning Commission review. As I understand it, obtaining an overall CEQA approval to the plan means that individual developers do not have to go through a CEQA process for each building. Can there be the CEQA streamlining coupled with standard Planning Commission review? To put it another way, if you have the CEQA streamlining, is it a necessity that there be ministerial review?
If I’ve gotten the names or words wrong on this question, please correct me.

David Loya’s response:

You’re using the language properly.

The concept of doing community based design work evolved out of the experience we had with the Village project. The “standard” review process involves the developer reviewing the codes, designing a plan that complies with the codes, then bringing the matter to hearing. The first that the community hears about the project is 10 days before the first hearing. The public are then afforded maybe 2, maybe 3, minutes to speak on the matter. Then, the decision maker considers whether the project meets the code or not. If they can make the finding that the plan meets the code, then they must approve the project.

David Loya:
The proposal for form based code allows community design and consideration now of the appropriate, site specific setbacks that are needed to accommodate a high-quality living environment for both current residents, taking into consideration their needs and desires, as well as future residents.

This leads to the following complaints: I didn’t hear about this project until last week! The project is fully designed already. I wanted the opportunity to weigh in before the designs were set! I only get three minutes!? This is too big for my neighborhood [it meets the code though…] And then, the Commission is relying on things like, does it meet the set-backs? Does the building have design and architectural elements to break up the mass? Does the building meet the floor area ratio? There is no finding that asks, did we address the above complaints. So, the Commission approves the project with maybe some minor design modifications. And people walk away angry.

The proposal for form based code allows community design and consideration now of the appropriate, site specific setbacks that are needed to accommodate a high-quality living environment for both current residents, taking into consideration their needs and desires, as well as future residents. It allows us to think through, at a master planning level, connectivity, massing, relationships among buildings and outdoor spaces, and plan for a desirable future state without the pressure of an impending project that has money behind it already. This isn’t to say that folks that didn’t participate in the community design might not be satisfied with new development, but it does resolve a lot of the angst typically associated with new development.

Why invest the time and energy into a master plan now if it is going to be modified on a project by project basis in the future?

So you asked, can there be a middle ground. I will pose a question back to you.
Why invest the time and energy into a master plan now if it is going to be modified on a project by project basis in the future?
The point of this process is to give certainty to the community now about how the streetscape could look if it is developed. If we are going to allow future decisions to affect the outcomes, then there is really no purpose to investing in uncertainty.

Question to David Loya:

What you’ve said about how it is important to be able to attract developers and have them want to build in Arcata — that we’ll get more in terms of amenities if it’s easier for the developers to move forward on their projects. More amenities would be a benefit to the community. Certainly with ministerial review it’s easier for developers to see that their projects can get started more quickly. This may be difficult to answer briefly, but do you consider ministerial review to be essential for the success of this plan? That is, do you think that it will work for developers (and have good results for the buildings that are built) if we had standard Planning Commission review.

Yes. I can expand on this in a conversation, but the answer is yes. In brief, the Village project spent hundreds of thousands of dollars on a permitting process. That could have been used to improve our community. Many developers refuse to build in our community because of this. We suffer from a lack of housing in our area because of these policies.
Without the form based code approach, there is no reason to do the plan. If we want one off discretionary review, we should just zone it mixed use and call it a day.