DATE: FEBRUARY 19, 2025
TO: CHAIRMAN AND MEMBERS OF THE PLANNING COMMISSION
FROM: ANDREA GILBERT, CITY PLANNER
SUBJECT
Appeal of a request for interpretation by the Director of Development Services for the calculation and enforcement of Floor Area Ratio (“FAR”) in the Mixed Use Overlay District (“MUO”).
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RECOMMENDATION
Deny the appeal and uphold the interpretation of the Zoning Code made by the Director of Development Services regarding the calculation and enforcement of FAR in the MUO district.
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 on December 3, 2024 by Chino resident Robert Nigg requesting clarification on FAR (Attachment A). On December 13, 2024, Mr. Nigg (“Appellant”), submitted an appeal application (Attachment B) 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 Chapter 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.
APPEAL
The Appellant is challenging the interpretation by the Director that the FAR limitation in 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.
It should be noted that the 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 are not before the Planning Commission at this time 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 his appeal, the Appellant cites to 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 withing 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. 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 State mandates promulgated 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 Chino Municipal Code (“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, 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.
C. General Plan Is Consistent with 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)
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 (e.g. MU30 designations identify maximum densities of 30 units per acre and FAR limitations of 1.5). 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.
D. The City Council adopted, and HCD approved, the City’s Housing Element, which includes the Director’s interpretation applying FAR only to non-residential 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.
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
B - Director Decision Appeal Application
C - Zoning Code Chapter 20.09 (Overlay Districts)
D - Government Code Sections
E - Envision Chino 2025 General Plan Land Use Element