Policy Watch: Week of 9/18

By The Left Hook
Sep 18, 2017

City of San Jose

Council Member Rocha’s request for analysis into City of San Jose OTW exception, plus City Manager and Attorney memo analyzing City exceptions

The Council will consider CM Rocha’s memo that will direct staff to analyze the administrative and budget implications of implementing the Opportunity to Work rules within the City organization and return to City Council with the results of their analysis and an implementation plan for Council consideration. Also, that the City Attorney be directed to provide an explanation of why the Opportunity to Work ordinance does not apply to the City of San José, along with an explanation whether it applies to other public agencies within San José.

A supplemental memo from the City Manager and City Attorney provides the following analysis relating to its applicability to governmental entities, and the City of San Jose:

Under California Labor Code Section 18, a “person” means any person, association, organization, partnership, business trust, limited liability company or corporation. This list does not include various governmental entities, like the State of California, county, incorporated city, or town or other municipal corporation. Thus, the City of San Jose, as a municipal corporation, does not fall within the definition of Section 18.
Under subsection 2 of Section 4.101.030(D), the Ordinance applies to businesses that are subject to the City’s business tax or businesses that have a place in San Jose which are exempt by state law from the imposition of the City’s business tax. This requirement covers private employers, as well as non-profit employers, but it does not cover the City or other government agencies.
State agencies, such as counties, cities, school districts, public utility districts, water districts, to name a few, are immune from local regulation of their governmental activities absent an express legislative or constitutional waiver of that immunity. With respect to federal agencies, the United States Constitution’s supremacy clause preempts local regulations, unless federal law expressly requires compliance with local regulations.
If the OTW Ordinance were to apply to the City, it would be subject to meet and confer with the affected bargaining units. The City will be in negotiations in 2018 with the affected bargaining units and will bring forward this issue in closed session to discuss with the City Council prior to beginning those negotiations.
As a citizen initiative passed by the voters, the ordinance cannot be repealed or amended except by a vote of the people, unless provision is otherwise made in the original ordinance.

Where: San Jose City Council

When: Tues. Sept. 19, 2017, 1:30pm, Council Chambers

Link to item: https://sanjose.legistar.com/LegislationDetail.aspx?ID=3153723&GUID=F6FA87BF-0E9D-4B02-8F78-B739D06BE5C5&Options=&Search=

Link to agenda: https://sanjose.legistar.com/MeetingDetail.aspx?ID=560012&GUID=E93DA60E-B755-48AF-A6AB-D486427982B0&Options=info&Search=

Appointment of Interim City Manager

Where: San Jose City Council

When: Tues. Sept. 19, 2017, 9:30am, Council Chambers

Link to item: https://sanjose.legistar.com/LegislationDetail.aspx?ID=3157177&GUID=E9798AED-24EF-4055-B2EC-7BAA4DFDEF79&Options=&Search=

Link to agenda: https://sanjose.legistar.com/MeetingDetail.aspx?ID=560012&GUID=E93DA60E-B755-48AF-A6AB-D486427982B0&Options=info&Search=

MEMO from Khamis/Jones re Potential changes to the Affordable Housing Impact Fee and Inclusionary Housing Programs

Supplemental memo from CMs Khamis and Jones proposes accepting staff recommendation for an alternative method for an AHIF reduction for certain qualifying projects with the following change: Allow developers of all residential projects, not just projects on public property, with Affordable Rental Apartments to apply for an Affordable Housing Impact Fee (AHIF) offset based on the level of affordability of the Affordable Rental Apartments.

A letter from the Santa Clara County Association of Realtors opposes modifying the Impact Fee and Inclusionary Housing Programs stating that it will harm infill projects and discourage small investors from participating in the marketplace. They also ask that the City Council exempt Accessory Dwelling Units from the definition of “dwelling unit.”

Original item:

Council will receive a staff report regarding potential changes to the Affordable Housing Impact Fee and Inclusionary Housing Programs, and consider a resolution that revises the definition of “dwelling unit” to clarify the distinguishing characteristics of a unit subject to the Affordable Housing Impact Fee; and allows developers of qualifying projects with Affordable Rental Apartments to apply for a different method of calculating their required Affordable Housing Impact Fee. Approval of the recommendation will also Direct the City Attorney and Housing Department to return with a new ordinance imposing an inclusionary housing obligation on for-sale projects with three (3) to nineteen (19) homes.

Approval of the recommended actions is intended to clarify distinguishing characteristics of dwelling units subject to the Affordable Housing Impact Fee (AHIF), encourage the development of on-site affordable units, and apply the inclusionary housing requirements to smaller projects so as to minimize procedural discrepancies between the Inclusionary Housing and AHIF Programs. The recommended actions are intended to simplify processes, improve efficiency, and provide certainty for developers of projects, regardless of whether they are rental or for-sale.

Where: San Jose City Council

When: Tues Sept. 19, 2017, 1:30pm, Council Chambers

Link to item: https://sanjose.legistar.com/LegislationDetail.aspx?ID=3149248&GUID=E8006486-5017-449F-BD79-9A89E315E91A&Options=&Search=

Link to agenda: https://sanjose.legistar.com/MeetingDetail.aspx?ID=560012&GUID=E93DA60E-B755-48AF-A6AB-D486427982B0&Options=info&Search=

MEMO from Mayor/Peralez/Diep/Davis/Khamis & separate memo from Carrasco re preferred options for BART

New memo from Mayor and CMs Peralez, Diep, Davis, and Khamis supporting staff recommendations of single bore tunnel technology, the preferred station options, as well as calls for collaboration with SJSU and robust community outreach.

Memo from VM Carrasco calls specifically for outreach plan with local business community, residents and stakeholders in multiple languages.

A letter from Grocery Outlet expresses support for the West Station Option.

Original item: Council will consider the following priorities and locally preferred alternatives provided by staff for the BART Phase II project, as guidance to the City’s VTA Board members in determining the final project description, completion of environmental clearance, and initiation of final design:

Support the West Station Option for the Downtown Station location
Support the North Station Option for the Diridon San Jose Central Station location
Support continued efforts by VTA, with the collaboration and support of BART, to determine a way to enable the Single Bore Tunnel method to be used in construction of the subway tunnel under Downtown San Jose to partially mitigate the significant construction impacts associated with Twin Bore, cut and cover construction methods
Emphasize the need for VTA to continue detailed levels of coordination with the City of San Jose on station access planning, integration with surrounding urban areas, and final station design to ensure that the stations and station areas appropriately represent San Jose.
Establish as a priority the effective integration of the BART project, station location, and portal entrances into the Diridon San Jose Central Station planning and area development
Emphasize the importance for VTA to develop an extensive Construction Outreach and Management Program (COMP).

Where: San Jose City Council

When: Tues. Sept. 19, 2017, 1:30pm, Council Chambers

Link to item: https://sanjose.legistar.com/LegislationDetail.aspx?ID=3149278&GUID=A7F8A775-2FAB-4762-8D27-0687F457031D&Options=&Search=

Link to agenda: https://sanjose.legistar.com/MeetingDetail.aspx?ID=560012&GUID=E93DA60E-B755-48AF-A6AB-D486427982B0&Options=info&Search=

City of Santa Clara submits attorney letter in opposition to Tri-Village Urban Village plan

Letter from Thomas Law Group on behalf of the City of Santa Clara citing environmental concerns related to the Tri-Village urban village plan (Stevens Creek, Santama Row and Winchester Urb. The letter cites the city’s right to file a legal action if its concerns are not addressed.

Where: San Jose City Council Rules and Open Government Committee

When: September 20, 2017 2:00PM City Hall Council Chambers

Link to item: http://sanjose.granicus.com/MetaViewer.php?meta_id=659558

Link to agenda: http://www.sanjoseca.gov/DocumentCenter/View/71833

City of Milpitas

Direction on additional PACE programs seeking to operate within city

Staff are recommending that Council accept staff’s report and provide guidance and direction on Property Assessed Clean Energy (PACE) Programs.

During the month of July 2017, city staff were approached by two Property Assessed Clean Energy (PACE) providers expressing interest in operating in Milpitas. To date, the only PACE provider authorized to operate in Milpitas is the California Statewide Communities Development Authority (CSCDA) sponsored CaliforniaFIRST program. Should the City Council decide to add additional PACE programs to Milpitas, the Council must take actions to adopt a resolution to sponsor the program and join the associated Joint Powers Authority, per the requirements of AB 811 and SB 555.

The following are benefits in allowing more than one PACE provider to serve property owners from Milpitas:

Ability for the City to achieve climate action plan goals through reductions in greenhouse gas emissions.
PACE program is 100% voluntary; property owners utilize this source of financing only if they choose.
Creates competition in the marketplace and allows property owners to have a choice in their PACE provider.
Each PACE provider has different interest rates and terms allowing property owners to have more choices.
Each PACE provider covers a different range of energy, water and seismic upgrades, so more options means more types of projects can be eligible to the property owner.

While PACE programs do provide alternative financing options to property owners, there are elements to the program that may present challenges for consumers including:

The property owner could be considered in default of their existing mortgage if they did not get lender consent prior to agreeing to the PACE assessment.
The property owner may be required to pay off their PACE loan at the time of resale or refinance.
The property owner could be charged differential interest rates or penalties for early pay off of the PACE assessment.

Based on this report, staff propose 2 possible actions for the Council:

Direct staff to establish a greater level of consumer protection for PACE providers and establish these conditions as requirements for PACE Financing Programs in the City of Milpitas. The City shall only authorize those providers that have signed agreements. The City Council may adopt resolutions authorizing the operation of PACE Financing Programs within the City of Milpitas.
Take no action at this time in pursuit of additional PACE programs in Milpitas.

Where: Milpitas City Council

When: September 19, 2017, 7:00pm

Link to item: http://www.ci.milpitas.ca.gov/_pdfs/council/2017/091917/attachments.pdf

Link to agenda: http://www.ci.milpitas.ca.gov/_pdfs/council/2017/091917/Agenda.pdf

City of Cupertino

Adopting new Transportation Impact Fee of up to $5,968 per housing unit, $9.60-$16.81/sf for commercial & $3.272 per hotel room

Staff are recommending that Council conduct a first reading of a Draft Ordinance adopting and implementing the City’s Transportation Impact Fee Program, and adopt a resolution amending the fee schedule to include the new Transportation Impact Fee.

The City adopted an amended General Plan known as “General Plan: Community Vision 2015 – 2040” (The General Plan) on December 4, 2014. The General Plan specifically identifies the need to implement a TIF to fund needed transportation improvements necessary to accommodate and mitigate the impacts of future development in the City. To support the TIF program, the City must prepare a Nexus Study that will provide a legal basis for requiring development impact fees consistent with Mitigation Fee Act (AB 1600/ Government Code Section 66000 et seq.). On August 15, 2017, City Council adopted the Transportation Impact Fee Nexus Study (Attachment E) and directed Staff to draft the appropriate legislation to implement the City Wide Traffic Impact Fee.

At the August 15, 2017 City Council Meeting, City council directed staff to draft an Ordinance to adopt the maximum allowable traffic impact fee. The Nexus Study adopted by City Council on August 15, 2017 calculates the maximum allowable transportation impact fee by land use category.

The proposed TIF fee schedule sets a $5,968 fee per unit of single family residential development; $3,700 fee per unit of multi-family residential development; $9.60 per square foot of retail development; $16.81 per square foot of office development; $3,272 per room of hotel development; and $6,025 per trip unit for other types of development.

Pursuant to the TIF Study, the following development projects will be exempt from the TIF Program Fee:

The rehabilitation and/or reconstruction and/or expansion of any legal, residential unit and/or the replacement of a previously existing legal dwelling unit that does not cause the addition of vehicular trips as defined by the Institute of Traffic Engineers.
The rehabilitation and/or reconstruction of non-residential structures where there is no net increase in square footage and/or change in development type/land use (e.g. office to retail).
Residential accessory buildings.
Public facilities, including but not limited to, buildings, structures and outdoor recreation areas owned by a local agency.

This is the first reading of the Ordinance which will return to the Council for adoption at the next regularly scheduled meeting.

Where: Cupertino City Council

When: September 19, 2017, 4:45pm

Link to item: https://cupertino.legistar.com/LegislationDetail.aspx?ID=3154085&GUID=F367979B-6580-4867-B1FB-FFAA9FB9A9C6&Options=&Search=

Link to agenda: https://cupertino.legistar.com/View.ashx?M=A&ID=508238&GUID=F26A494F-788B-43B8-BBF8-A9CC71C7DB74

Santa Clara County Board of Education

Public hearing on Voices Morgan Hill charter renewal petition

On September 1, 2017, the Charter Schools Office of the Santa Clara County Office of Education received a charter petition renewal request from Voices College Bound Language Academy at Morgan Hill. On September 14, 2017, Voices Morgan Hill withdrew and resubmitted their renewal petition. Voices Morgan Hill is seeking approval to renew a district appeal public charter, which is currently serving students in grades TK-3 for a continuing charter term of five years beginning July 2018 to continue to grow to serve students TK-8th. Voices Morgan Hill was initially approved on appeal from Morgan Hill Unified School District as a grade TK-8 charter school in November 2014 for a three-year term. Current enrollment is 199 students (grades TK-3) with capacity at 504 students (grades TK-8) by 2023. Voices’ mission is to prepare all students for the challenges of higher education through the context of an academically rigorous dual-language program. In addition, Voices will ensure students demonstrate high academic achievement and apply critical thinking skills while making sense of their role within their own culture and the greater society.

Where: SCCBOE

When: 09/20, 7:00pm

Link to item: http://www.boarddocs.com/ca/sccoe/Board.nsf/goto?open&id=AQYLP65777B4.

Link to agenda: http://www.boarddocs.com/ca/sccoe/Board.nsf/Public.

Public hearing on KIPP East Side Charter appeal petition

On September 5, 2017, the Charter Schools Office of the Santa Clara County Office of Education received an initial Petition for the KIPP East Side High School, a district appeal 9^th-12^th grade charter school which is proposed to serve 500 students and will be located in East Side Union High School District. KIPP East Side HS was denied by East Side Union High School District on August 17, 2017. It submitted its petition to the SCCOE and plans to open its doors for the fall of 2018.

Where: SCCBOE

When: 09/20, 7:00pm

Link to item: http://www.boarddocs.com/ca/sccoe/Board.nsf/goto?open&id=AQYLGC561471.

Link to agenda: http://www.boarddocs.com/ca/sccoe/Board.nsf/Public.

Alum Rock Union Elementary School District

Response to FCMAT audit report

The board will provide clarification for the FCMAT response and recommendations

Where: ARUESD Board

When: 09/14, 5:30pm at ARUESD

Link to full packet: https://www.arusd.org/cms/lib/CA01001158/Centricity/Domain/11/BB.9.14.17.pdf

Link to agenda: https://www.arusd.org/cms/lib/CA01001158/Centricity/Domain/11/6.Sep.14.17Reg.Bd.Mtg.Agenda.pdf

Terminate 3 contracts with Del Terra Real Estate Services, Inc.