During election season, we see many discussions around “who runs our city” with respect to development, with comments from both candidates and concerned citizens. I have written a summary of how the various elements in the process play together: namely, the General Plan, City Council, Planning Commission, and City Staff (including City Planners). I hope my latest blog post will provide answers to Frequently Asked Questions, and then will inspire even more questions!
I am indebted to Barbara Meerjans for her invaluable help in reviewing this explanation, confirming accuracy of my statements, and providing clarification. Barbara served 26 years in City Planning with the City of Fremont, and her career included positions as both Senior Planner, and Interim Planning Manager.
Fremont is a general law city. As a general law city, our authority is conferred upon us under State law, including the Government Code. Our planning decisions are made based upon Fremont’s General Plan, with certain elements of the plan required by State law.
1. Who “runs” our city, when it comes to considering and approving new residential, retail, or commercial construction?
New development in Fremont is determined by our General Plan and our zoning, that are a reflection of the people. Future development is “decided” by the General Plan. City Staff, the Planning Commission, and the City Council are required to evaluate projects to determine:
- whether the applications are consistent with our General Plan and Zoning, or
- whether we can make findings to amend our General Plan to grant the entitlements sought by homebuilders, retail, or commercial builders.
2. Who is the final approval authority in these matters?
In short, the City Council. While it is important to have competent Planning Commissioners who add value to the process and often can raise concerns or add new conditions adopted by the Council not considered by the City Staff, the final approval authority is - or can always be on appeal if required - the City Council.
3. What is the General Plan?
In effect, the General Plan is our city’s constitution. It’s the controlling document for all future development for 25 years, and is required by State law to include such mandated elements as traffic circulation, land use, housing, open space, and safety (i.e., seismic, flooding, slope instability…). [Gov. Code, 65300.5, 65454, 65302]
4. What is the history and timeline around our current General Plan?
After 5 years of public participation and public hearings 2006-2011, Fremont updated its General Plan 2030, a once-in-a-generation action. General Plan 2030 replaces our previous general plan adopted in 1991. Learn more about our General Plan.
Our general plan is the will of the people - expressed through direct participation and representative democracy when the City Council unanimously approved General Plan 2030 on December 13, 2011. In fact, one could say that the will of the people is expressed through the City Council, whom they elect, as well as in public participation to shape the General Plan.
5. What else should we know about the General Plan?
In addition to the State-mandated elements, General Plan 2030 includes "Sustainability" as an overarching theme and "Community Character" that emphasizes preserving our neighborhoods while allowing for evolution of those neighborhoods over time.
As required by law, after General Plan adoption in 2011, we updated our zoning ordinances to conform to our General Plan 2030.
We can amend our general plan -- although State law limits that to four times in a calendar year, except for projects where 25% or more of the units are for affordable housing. [Gov. Code § 65862]
6. What about the Housing element of the General Plan?
Our housing element is updated every eight years. In this instance, State law intervenes and overrides local control through the actions by our Legislature and Governor in Sacramento rather than by the City of Fremont. Of course, these elected officials are an expression of the will of the voters statewide rather than simply at the local level, but changes to our State housing laws must then come from Sacramento, rather than whomever is elected to serve on our City Council. The City of Fremont Housing Element 2015 - 2023 was adopted December 2, 2014. The Housing Element includes needs, goals, policies, and implementation measures.
For example, our housing goals for all housing types (especially including below-market rate) is set by a regional Bay Area agency and are called Regional Housing Needs Allocation (RHNA). RHNA was at one time established by the Association of Bay Area Governments (ABAG) operating under the mandates of State law (ABAG has since merged with our regional Metropolitan Transportation Commission).
These RHNA targets are not merely aspirational but enforceable legal obligations that limit the right of cities to say no to all development, and, in particular, to say no to affordable deed-restricted below-market rate housing development. In fact, under SB 35 (passed last year by the State Legislature), affordable housing developers will be able to obtain approval for their projects "over the counter." This means that developers may obtain entitlements to build as a matter of right without any public hearing before either the Planning Commission or the City Council if the developer meets certain minimum requirements set not by our General Plan but by State law under SB 35.
The Housing Element is available online at the City website as part of the General Plan documents.
7. What is the role of the Planning Commission in this process?
The role of the Planning Commission is to recommend—not to be the final decision-maker. An exception is when voting to approve a Discretionary Design Review Permit or to issue or revoke a Conditional Use Permit (CUP) or cell tower placement.
8. What if the Planning Commission recommends denial of a project?
If the Planning Commission recommends denial of a project and such a decision were final (i.e., in denying a Discretionary Design Review Permit or CUP), the developer-applicant has the right to appeal.
If the project involves a specific plan, or preliminary or precise planned district, the matter will automatically come before the City Council even if the Planning Commission recommends denial.
9. Should Planning Commissioners be held accountable for approving developments?
Planning Commissioners do not approve anything unless it is a Discretionary Design Review Permit, cell tower placement, or CUP that is not appealed to the City Council by the applicant or the public. And that is an important point: the public - on equal footing with an applicant - always has the right to appeal any decision of the Planning Commission that would otherwise be final. Most often, as noted previously, the Planning Commission recommends approval or can recommend disapproval by the City Council.
10. How does the Planning Commission get input before making their recommendations?
Before a project is approved (or recommended for approval by the Planning Commission) there is a public hearing process. Residents and any members of the public have the opportunity to attend and speak for or against all development projects that come before Planning Commission or City Council.
The Brown Act prohibits a majority of Planning Commissioners or Councilmembers discussing the matter among themselves before the hearing – thus the discussion and decision-making is all done in public, and done transparently.
11. What is the role of City Staff in this process?
When City Council (or the Planning Commission) considers a project, City Staff (consisting of professional City Planners who are Fremont employees) prepares an extensive report. For virtually all projects, City Staff will make a formal written recommendation supported by extensive citation to our General Plan policies and goals. The planner assigned to the proposed project is the "team lead" during the staff review and coordinates comments from other departments including Fire, Police, Building, Engineering, Landscape Architecture, Environmental Services, and other departments as applicable.
City Staff draws a salary whether a project is approved or not. Their role is to provide the best objective professional opinion as to General Plan and zoning consistency. Our City Staff do not take developer money as that would be a crime. City Staff, since they are actually employed by the City of Fremont, are known as City Planners and they have undergraduate degrees in planning from highly regarded 4-year college institutions. Many go on to obtain graduate degrees or professional certification.
12. What is the role of City Staff to the Council when Planning Commission recommends disapproval?
Early on in my career as a Planning Commissioner, I led the Planning Commission to oppose City Staff and deny a conditional use permit to allow a smoke shop in Fremont. When the applicant appealed our decision to the City Council, I learned to my dismay that City Staff would still recommend approval of the CUP.
Why? Again, City Staff performs a role that is independent from that of Planning Commissioners or City Councilmembers, in providing their best professional and independent judgment. City Staff will dutifully include Planning Commission's denial in their report to the City Council, and the reasons given by Planning Commission for their recommendation or decision, but City Staff will reaffirm its views on a particular project.
My initial disappointment as a new Planning Commissioner has changed over time to one of respect and a deeper appreciation for the independence and professionalism of our City Staff. Most of the members of our public who have never watched or attended a hearing, or read City Staff reports, have not had the same privilege I have had learning the important roles our City Planners perform in ensuring that our land use decisions conform to our General Plan and zoning.
13. Why does City Staff appear to always be recommending approval?
In virtually all cases, City Staff recommends approval based on the project's consistency with our General Plan and applicable zoning. By the time the matter comes to the Planning Commission or City Council, the applicant has worked with City Staff to submit a project they can recommend. There are often several revisions to the original application proposal before the project goes on to Planning Commission.
There are instances where projects never see the light of day at the Planning Commission or City Council because City Staff has advised the applicant that they will recommend against the project, a death knell for an applicant. The applicant has the right to proceed even if City Staff opposes, but that is foolhardy and most applicants re-submit to obtain approval or decide not to proceed with the public hearing process.
14. How many times has a developer come before me over the objections of staff to get approval to proceed with their applications?
In 10 years on the Planning Commission, I recall only two instances when applicants came before me and sought to obtain our recommended green light to proceed with their applications over City Staff objections. Both applicants used what is known as a Preliminary Review Process (PRP), which predated our General Plan Screening Policy and can still be used when no General Plan amendment is sought. At the PRP stage, the plans are very conceptual and no formal studies have been undertaken by the applicant. It is a cost-effective way for an applicant and staff to gauge the views of the Planning Commission, the City Council and the public on an applicant’s proposal before the applicant incurs the expense of formal studies and staff incurs valuable and limited staff time and resources in reviewing a formal application.
In the eighteen months I have been on Council, no developer has come before the City Council under the PRP process, nor sought formal approval for a project over the objections of City Staff.
At the two PRP hearings I recall while on Planning Commission, City Staff recommended against the developers’ proposals at the PRP hearings. In both instances I, along with the other Planning Commissioners, agreed with City Staff and said no to the developers.
15. Has a project ever come before City Council for new development, over the objection of City Staff?
All projects that have come before me on the City Council have received the recommendation for approval by both the Planning Commission and our professional City Planner staff.
16. What is the General Plan Amendment Screening Policy?
In 2015, Fremont adopted what is known as a General Plan Amendment Screening Policy, a two-step process applied when an applicant seeks to amend our General Plan to build residential units.
In the first step, the applicant must demonstrate to the Council it is providing enough community benefits to the City to warrant coming back months -- or even years -- later with its formal application for approval. In the case of Lincoln Properties in the heart of Mission San Jose proposed by Robson Homes, I led Council discussion in saying no, ending that proposal.
At the first phase, no actual project is considered. No formal studies are done, such as formal environmental review or seismic studies. If the applicant is greenlighted in the first step, if or when the applicant returns with a formal project, at that time the Council retains full authority to deny the project or add other conditions over the objections of the applicant. Learn more about Fremont's General Plan Amendment Screening Policy.
17. How does this play into denial of a project?
If the project does not meet our General Plan goals and policies, then the General Plan Amendment Screening Policy allows the project to be rejected. If City Council agrees with the proposed amendment, the applicant would then submit a formal application for review.
If a project does meet our General Plan and Zoning, then the burden shifts to the Planning Commissioners who recommend or have the authority to deny, or to the City Council who vote to deny.
18. What happens if City Council rejects a project without adequate findings?
Denial or approval of any project includes findings stating the conformance or non-conformance of the proposal to the General Plan and any applicable ordinances and laws. If the City Council were to reject a project on a "just say no" whim without adequate findings (perhaps because of a few Facebook rants), then our City would be sued and we would lose – and then we will end up paying the attorney's fees of the developer.
19. Have you ever voted to approve a project against the recommendation of our professional City Staff?
To the best of my recollection, in my 10 years on the Planning Commission and the last 18 months on the City Council: NO. On the other hand, I have outright voted against developments, added conditions opposed by developers to a number of projects, and said NO to greenlight several proposals under the General Plan Amendment Screening Policy, first on Planning Commission, and then later on the City Council.
In fact, for some time, I was the only Planning Commissioner or City Councilmember to vote "no" to a developer under the General Plan Amendment Screening Policy. And in 2017 I was the only Councilmember to vote no in revising our General Plan Amendment Screening Policy because I didn't want to make it easier for developers to amend our General Plan for residential development.