TO: LINDA REICH, CITY MANAGER
FROM: WARREN MORELION, AICP, DIRECTOR OF DEVELOPMENT SERVICES
SUBJECT
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Appeal to the City Council of the Planning Commission's Denial of an Appeal of a Written Decision by the Development Services Director.
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RECOMMENDATION
recommendation
That the City Council 1) deny the appeal and affirm that the Planning Commission is not required to issue specific findings of fact in connection with its decision to uphold the interpretation by the Director of Development Services for the calculation and enforcement of Floor Area Ratio (“FAR”) in the Mixed Use Overlay District (“MUO”) and 2) deny the appeal and affirm the decision by the Planning Commission to uphold the interpretation of the Zoning Code by the Director of Development Services regarding the calculation and enforcement of FAR in the MUO district.
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FISCAL IMPACT
No fiscal impact.
CITY OF CHINO MISSION / VISION / VALUES / STRATEGIC ISSUES
The recommendations detailed above further the City’s values and strategic issues that serve as key pillars on which identified priorities, goals, and action plans are built, by fostering:
• Responsible Long-Range Planning
BACKGROUND
IDENTIFICATION OF ISSUES BEFORE THE CITY COUNCIL
The issues before the City Council concerning these appeals are narrow. The Appellant makes an effort to broaden the scope of the appeal via argument and presentation of factual issues outside the scope of the original appeal submitted on December 13, 2024. The items to be considered by the City Council in this appeal are:
(1) Was the Planning Commission required to issue specific findings of fact in connection with its decision to uphold the interpretation by the Director of Development Services for the calculation and enforcement of FAR in the MUO?
(2) Did the Planning Commission correctly uphold the interpretation of the Zoning Code by the Director of Development Services regarding the calculation and enforcement of FAR in the MUO district?
To the extent the Appellant presents arguments beyond the scope of the two items identified above, including any argument concerning pending projects in the City, broad policy arguments concerning zoning or overlay ordinances, or the integrity of City staff, the City Council should disregard those arguments because they are not within the scope of the original appeal.
FACTUAL BACKGROUND
On December 5, 2024, the Director of Development Services (“Director”) made a written decision concerning the administration and enforcement of Floor Area Ratio (“FAR”) in the MUO. This decision came in response to an email received by the City on December 3, 2024 from Chino resident Robert Nigg requesting clarification on FAR (Attachment A). On December 13, 2024, Mr. Nigg (“Appellant”) submitted an appeal application (Attachment A) appealing the written interpretation of the Zoning Code by the Director as it relates to the administration and enforcement of FAR.
The 2021-2029 Housing Element (“Housing Element”) describes two overlay districts - MUO and Affordable Housing Overlay (“AHO”). These overlay district sites were placed on 91 locations throughout the City pursuant to Measure Y, which was approved by Chino’s voters in June 2022. Measure Y necessitated voter approval due to the requirements of the City’s existing residential growth measure (Measure M, approved in 1988), which requires that any change that increases the residential density of an existing residential property or changes the property from non-residential to residential requires the vote of the residents of the City. The overlay districts for the Affordable Housing Ordinance were adopted by the City Council in April 2023. This ordinance is required to implement the programs, goals and actions outlined in the Housing Element. The ordinance was amended in December 2024 due to changes required by the California Department of Housing and Community Development (“HCD”) in order to certify the Housing Element, which also occurred in December 2024.
The development standards for FAR as it relates to the MUO districts can be found in Section 20.09.090 of the Zoning Code (Attachment C). The development standards described in Section 20.09.090 are consistent with State law, which requires objective standards be contained in the ordinance to support the development of affordable housing in the City as required by the Housing Element.
PROCEDURAL BACKGROUND
In connection with the December 13, 2024 appeal, the Appellant submitted a lengthy appeal narrative. This narrative, as discussed in more detail in Section 2 below, challenged the Director’s interpretation of the FAR as applied in the MUO district. However, this narrative contained arguments well beyond the scope of the appeal, attempting to make arguments against specific projects as opposed to arguments regarding the Citywide application of the FAR to MUO projects.
Following receipt of the Appellant’s appeal, the hearing date was scheduled for February 19, 2025. In anticipation of the hearing date, City staff prepared a staff report (Attachment A) addressing the arguments by the Appellant within the scope of the appeal. On February 19, 2025, the date of the hearing, the Appellant submitted a second lengthy narrative reiterating the arguments from the first appeal and introducing numerous new arguments not previously raised in the initial appeal. This submission articulated arguments and offered evidence not previously provided with the original appeal, and therefore was not considered with the original appeal.
During the February 19, 2025 hearing, staff presented their report and recommendations to the Planning Commission. The Appellant was also provided time to present his case. The Planning Commissioners then had the opportunity to ask questions and clarify information and arguments with both staff and the Appellant. Following argument and Commissioner questions, with a vote of 5-1-1, the Planning Commission upheld the Director’s interpretation of enforcement and calculation of FAR in the MUO district (Planning Commission Minutes included with Attachment A). The subject appeals were then filed by Appellant for City Council consideration.
ISSUES/ANALYSIS
APPEALS
The Appellant submitted two appeals following the February 19, 2025 Planning Commission hearing: (1) Appeal requiring the Planning Commission to issue specific factual findings; and (2) Appeal to challenge the Planning Commission’s decision to uphold the Director’s interpretation of the calculation and enforcement of FAR in the MUO district. (Attachment B) The Appellant’s first appeal should be denied, as explained in more detail below, because the Planning Commission is not required to make factual findings where the Planning Commission decision does not relate to a specific development project or application pending before the Planning Commission.
The Appellant’s second appeal should be denied, as addressed below, because the Planning Commission correctly upheld the Director’s interpretation. Additionally, many of the Appellant’s arguments in opposition to the Planning Commission’s decision amount to a policy argument (what the City should or could have done and what it should or could now do) with respect to the current MUO district ordinance and the Zoning Ordinance generally. The time and place for policy arguments concerning the adoption of the MUO ordinance was during the public hearing process when the ordinance was adopted by the Planning Commission and City Council in early 2023 and amended in late 2024.
1. The Planning Commission was not required to make specific factual findings.
In this appeal, the Appellant alleges the Planning Commission failed to make specific findings of fact in support of its decision to uphold the Director’s interpretation of enforcement and calculation of FAR as applied in the MUO district. In the appeal, the Appellant demands the Planning Commission make specific findings of fact to address numerous arguments contained in his February 19, 2025 submission. Because of the nature of the appeal brought by the Appellant, the Planning Commission is not required to make factual findings in its decision to uphold the Director’s determination.
The appeal brought by the Appellant regarding the Director’s interpretation, related to the decision by the Planning Commission to uphold the Director’s interpretation, is not related to the application of City policies to a specific project such as an entitlement, development application, permit, or tentative map submitted by the Appellant. Instead, the appeal concerns the Director’s interpretation of an ordinance applied Citywide. Because the appeal to the Planning Commission did not relate to an entitlement or application pending before the City, the Planning Commission was not required to make specific factual findings. The authority cited by the Appellant supports this. The Planning Commissioner’s Book, cited by the Appellant in footnote 2 of this appeal, provides a non-exhaustive list of situations where findings by the Planning Commission may be required. These include zone changes, subdivisions, specific plan adoptions or amendments, conditional use permits, variances, and design review approval, among others. Each of those actions relates to a specific project, property, permit, or entitlement, requiring specific findings to provide the applicant an opportunity to properly identify deficiencies or other issues in their application. Here, the Appellant has no such pending application or interest being considered by staff or pending before the Planning Commission.
The Appellant cites Chino Municipal Code (“CMC”) Section 20.23.150 in support of his contention that the Planning Commission was required to issue findings of fact in connection with its decision on February 19, 2025. However, taken as a whole, Chapter 20.23 describes the processes by which specific land use decisions and entitlements may be handled, and the requirements applicants must meet for their specific applications. Chapter 20.23 describes procedures and requirements for General Plan amendments, specific plans, zone changes, development agreements, variances, site approvals, etc. Each of those relates to a specific project or interest held by an applicant making submissions to the City for consideration. Section 20.23.150 is the mechanism by which those applicants may challenge decisions by the Director or the Planning Commission concerning their specific project approvals. The findings required by that section provide reasons behind land use decisions made by the Director or the Planning Commission concerning a specific project or application. Section 20.23.150(a)(5) further supports this conclusion by reiterating that, regardless of who is appealing the decision by the Director or the Planning Commission, the project applicants bear the burden of ensuring their project “satisfies all applicable standards and criteria” required by the Zoning Code. The findings of fact guide those applicants so they may cure deficiencies in their projects or applications.
The situation in this appeal is much different. The Appellant solicited from the Director an interpretation of Section 20.09.090 and the enforcement and calculation of FAR in the MUO district as applied Citywide. The Appellant had no pending project or land use application with the City subject to the FAR interpretation he sought. After receiving the Director’s interpretation that FAR is only applicable to non-residential uses in the MUO district, the Appellant appealed that interpretation. Because the Appellant’s appeal does not relate to a decision made by the Director concerning a specific project or application filed by the Appellant, no findings of fact are required. There is no deficiency or discrepancy for the Appellant to cure in a pending project or land use application, so findings of fact are not required.
2. The Planning Commission correctly upheld the Director’s interpretation of FAR as applied in the MUO District.
The Appellant challenged the interpretation by the Director that the FAR limitation in CMC Section 20.09.090 applies to non-residential uses within the MUO district. The Appellant claims that “administration and enforcement” of FAR should be applied to both residential and non-residential uses alike within the MUO districts.
In this appeal to the City Council, the Appellant attempts to expand the scope of his appeal beyond what was submitted to the Planning Commission. The Appellant likewise makes broad policy arguments against the MUO district ordinance, which are outside the scope of this appeal. To the extent the Appellant takes issue with the MUO ordinance as it is drafted, the proper venue to challenge the ordinance is during the public hearing process for the adoption or amendment of the ordinance at Planning Commission or City Council meetings; not by appealing the Director’s interpretation of an ordinance already in place.
Importantly, this appeal relates solely to the interpretation by the Director regarding the calculation and enforcement of FAR within the MUO districts. To the extent this interpretation of FAR within the MUO district is applied to any projects within the City, individual projects were not before the Planning Commission and should not be addressed or discussed in this appeal.
The following is a response to the Appellant’s appeal concerning the interpretation by the Director concerning “administration and enforcement” of FAR in the MUO district.
A. General Structure of Housing Laws.
In this appeal, the Appellant cites a wide variety of authority to support the argument that FAR should be applied to both residential and non-residential uses within the MUO district. The authority cited by the Appellant applies to subject matters outside the scope of the City’s Housing Element and/or requirements by HCD concerning the State-mandated development of affordable housing. These provisions do not conflict with one another, but instead are part of the same framework governing housing development throughout the State.
At the highest level is State Housing Law (located in the Government Code), which broadly governs cities’ housing and development codes and the requirements for local governments in implementing their housing elements. These statutes apply across the State and compliance is mandatory to achieve the State’s housing goals. However, jurisdictions may implement the State’s requirements using varied methods to achieve the requisite outcomes. Usually, this occurs via general plans, zoning codes, and zoning overlays.
The next layer down is a City’s General Plan (and Housing Element). The General Plan and Housing Element broadly establish the City’s goals and policies to achieve a desired end result. HCD possesses broad oversight authority concerning the content of housing elements, allowing it to dictate certain requirements, especially related to development of affordable housing. HCD has exercised this broad authority on numerous occasions to compel local governments to implement HCD’s policy goals statewide. The next, more granular layers are the base zoning code and overlay zoning. Base zoning codes are the method a City uses to implement the guiding principles of the General Plan, controlling development within a jurisdiction consistent with the vision laid out in the General Plan. An overlay zone goes further. Overlay zones are a geographic zoning district layered on top of another existing zoning district, or districts, that implements additional regulations. Overlay districts are frequently used in zoning codes to promote specific types of development (namely affordable residential development).
B. The Appellant misunderstands the role of affordable residential units in calculating FAR for non-residential uses in MUO Districts.
It should be noted, generally, that FAR may be used for projects in the City when calculating the density of single family homes. The Appellant points to these provisions in the zoning code located in Tables 20.04-3, 20.05-2, and 20.09-3. However, for purposes of the AHO and MUO district ordinances, which address multi-family dwellings instead of single family dwellings, FAR is not utilized to calculate density for residential uses. This is shown in Table 20.09-6 and 20.09-7. So, while the Appellant accurately points to the single family dwelling standards utilizing FAR in conjunction with dwelling units/acre calculations to assist in controlling density for residential uses, multi-family dwellings in the MUO and AHO districts do not utilize FAR for residential uses. This is also the case and applied consistently in various specific plans within the City.
In making his arguments against the Director’s interpretation, and again in the appeal before the City Council, the Appellant misunderstands the role of affordable residential units and the impact on FAR for certain projects. Mixed use developments have residential uses and non-residential uses. To incentivize the development of additional residential uses in these mixed use developments, the City (pursuant to State directives) offered incentives to potential developers via the MUO district ordinance: if you build additional residential units in your project, the City will allow increased FAR for those non-residential uses in the project. The fact that the residential and non-residential uses are considered in a development project does not operate to combine the density calculations of the two uses. One is not the same as the other.
There is purpose behind this incentive structure. Development projects often need non-residential uses in order to justify the cost and expense to build out the residential uses. In order to facilitate the construction of more residential uses, the State has required cities like Chino to offer incentives that include increased FAR for non-residential uses. Note 1 in Section 20.09.090 provides an example of that incentive. While the two uses are related in that they are contained in the same MUO district ordinance, and in that the FAR for non-residential uses may increase should a developer increase residential density, density calculations for the two uses are not and should not be calculated using the same methodology. Calculating density for both by using FAR would disincentivize construction of residential uses as non-residential projects tend to be more lucrative than residential projects. Allowing developments to increase non-residential density in exchange for increased number of residential units complies with the HCD mandates concerning increased residential development goals.
C. Chino Municipal Code section 20.09.030 addresses potential conflicts between zoning overlays and other planning documents, and states that, in the event of such conflicts, the zoning overlay prevails.
In response to mandates adopted by the State over the last several years to promote the development of affordable housing, including requirements of the Housing Element Law referenced above and the Housing Accountability Act (Government Code Section 65589.5), the City implemented zoning overlays within the CMC. The two overlay districts are (1) the AHO district and (2) the MUO district. Each overlay district has its own requirements, independent of the underlying base zone.
To comply with HCD directives, where these overlay districts conflict with the base zone or the General Plan, CMC Section 20.09.030 provides the remedy. Section 20.090.030 (Attachment C) states that in the event of any conflict between overlay districts and base zoning districts, the requirement specified in the overlay district shall apply. If the overlay district is silent, the requirements of the base zoning district shall apply. This is consistent with State law and the State’s policy goals of increasing development of affordable housing units.
Here, Section 20.09.090 (Attachment C) is explicit in applying a FAR limitation only to non-residential uses. If there is any conflict between the MUO district and the City’s zoning code concerning application of FAR to a development, the requirements in the MUO district apply pursuant to Section 20.090.030. Therefore, the Director’s interpretation that FAR limitations in the MUO district apply only to non-residential uses is consistent with the City’s General Plan.
D. The General Plan is consistent with the Zoning Code and Overlay Districts, and consistently applies FAR to non-residential uses and density to residential uses.
State law requires that “[a]ll local land use decisions, including zoning ordinances, must be consistent with the general plan.” (Government Code § 65860.) (Attachment D). The City’s General Plan, after key amendments over the past several years, is consistent with the City’s zoning code and overlay zoning.
In the Land Use Element of the General Plan (Attachment E), on page LU-9, the applications of the terms “density” and “FAR” are explained plainly. These explanations are consistent with how those terms are utilized in the City’s zoning code and overlay zoning.
The number of residential units permitted for a parcel is determined by multiplying the residential density factor by the adjusted gross acres of the parcel. For non-residential uses, including commercial, office, and industrial uses, intensity is expressed as an average Floor Area Ratio (FAR). FAR is calculated as the total square footage of buildings on a site, divided by the total square footage underlying the site. (See LU-9. Emphasis added.)
This distinction is important, as the General Plan and the City’s MUO ordinance are consistent in their application of density and FAR as applied to residential and non-residential uses. The General Plan, in the sections discussing residential land use designation, refers only to density (units per acre), making no mention of FAR in calculating residential density. Pages LU-12 and LU-13 describe the intensity of the use in mixed use designations, distinguishing between density and FAR limits by setting separate thresholds for each. In further recognition of the distinction is the Commercial Designation on page LU-13. Those designations are represented only by FAR, not density.
With respect to the MUO and AHO zoning overlays specifically, on April 4, 2023, the City Council adopted Resolution 2023-014, amending the General Plan to implement the AHO and MUO districts in compliance with State mandates. Page LU-19 of the General Plan now defines the AHO and MUO districts to enable the development of affordable housing projects in the City. In that section, the General Plan specifically identifies CMC section 20.09.090 as the controlling authority for implementation of the AHO and MUO districts.
Despite the Appellant’s arguments that the City’s General Plan, zoning code, and overlay zoning are in conflict, the above demonstrates that each is consistent with the other. Density calculations are consistently utilized to control intensity of use in residential uses, while FAR is consistently utilized to control uses in non-residential uses. The Director’s interpretation of the FAR limitations in Section 20.09.090 is consistent with the City’s General Plan.
E. The City Council adopted, and HCD approved, the City’s 2021-2029 Housing Element, which includes the Director’s interpretation applying FAR only to nonresidential structures within the MUO District.
For several years, the City has worked with HCD to bring its Housing Element into compliance with the requirements of the Housing Element Law. In broad terms, the mandatory components of a housing element include “an identification and analysis of existing and projected housing needs and a statement of goals, policies, quantified objectives, financial resources, and scheduled programs for the preservation, improvement, and development of housing.” (Government Code § 65583.) (Attachment D)
The City was required to submit drafts of the Housing Element to HCD for review and approval both prior to and subsequent to adoption by the City Council. Through the course of that process, the City submitted to HCD various versions of its Housing Element for review and approval. On several occasions, HCD provided the City with required amendments and changes. This included drafts of the AHO and MUO district ordinances for review and approval. It should be noted that the language present in the AHO and MUO district ordinances have been in place since 2023.
In December 2024, after several public hearings and public input, the City adopted its Housing Element and submitted it to HCD for review and approval. HCD approved the City’s Housing Element and deemed it was substantially compliant with the State Housing Element Law. Pursuant to the Government Code, if HCD finds a Housing Element amendment substantially complies, which it has done here, the Housing Element enjoys a rebuttable presumption of validity. (Gov. Code § 65589.3.) (Attachment D) However, this approval is subject to the City’s continued compliance with its Housing Element, including the provisions of the MUO district. The consequence of failing to comply with provisions of the Housing Element includes severe repercussions such as ineligibility for certain federal, State, or regional grant programs, development opportunities within the City, and potential civil liability.
The Director’s interpretation of FAR as applied only to non-residential uses is consistent with the Housing Element as approved by HCD. HCD’s approval of the Housing Element indicates the Director’s application of FAR to non-residential uses within the MUO district is lawful and consistent with State laws, and consistent with the City’s General Plan and zoning codes.
Attachments:
A - Development Services Director’s Written Decision, Director Decision Appeal Application to Planning Commission, February 19, 29, 2025 Planning Commission Staff Report, and February 19, 2025 Planning Commission Minutes
B - Appeals of Planning Commission decision to the City Council
C - Zoning Code Chapter 20.09 (Overlay Districts)
D - Government Code Sections
E - Envision Chino 2025 General Plan Land Use Element related to Floor Area Ratio
F - Correspondence from Appellant 4/7/2025