Brentwood Selects Zoning Location for Emergency Homeless Shelter After 4-Hour Discussion

The Brentwood City Council agreed Tuesday night to zone it’s state mandated emergency homeless shelter on PD-38 which is located off Empire Road and Lone Tree Way.

The decision came during a marathon 4-hour discussion with nearly 3-hours of public comments from residents who opposed the recommended location bordering both Antioch and Oakley—many whom requested the city bypass state law and instead tax each resident instead to make up the difference in $8.75 million in funding over several years.

Mayor Bob Taylor wanted the public to know the landowner does not have to sell his/her property to build a homeless shelter—the landowner maintains land rights.

Staff stated that just because it’s zoned, does not mean it will be built. Staff then explained private property versus public property. While the private property owner can say no to the project, it’s more difficult for city owned property to say no based off state law on fair market value offers on a property.

“Brentwood is not building a homeless shelter, I don’t know how else to say it. Brentwood is not building a homeless shelter; it’s not going to happen. Any site we select is filled with opposition. But if we get the details out, the fact being we are not going to build it. The landowner can still decide whatever they wish to do with it. Hold it; sell it, whatever they want. The city has no jurisdiction over that,” explained Taylor. “Personally, I don’t want it either. I am on record saying that. I don’t want that. But we have to do what state law says we are going to do and we have to do it.

Taylor further highlighted the City of Oakley made their decision on a zoning location in October. He also highlighted Oakley placed their homeless shelter in the downtown area next to City Hall. He said Brentwood has no easy decision.

“We have to do what we have to do, “ said Mayor Bob Taylor. “We have to continuously look for a better site. I want to go on record that is really how I feel as the mayor.”

It was further explained that if Brentwood chose to bypass a decision, they run the risk of the State coming in and deciding for them on a zoned location.

Tuesday was a continuation from the April 14 meeting where the City Council held a public hearing on the required text amendments and received public comments regarding the emergency shelter zoning. After much discussion, the Council voted to direct staff to move forward with the text amendments but moving the location for the emergency shelter zoning to Planned Development 38, Subarea C. The Council decision was to place the zoning in this location in order to get the Housing Element certified and direct City staff to continue to evaluate potential locations for alternative emergency shelter zoning in the future.

Councilman Erick Stonebarger highlighted that the council gets accused of being “idiots”, called “jokes” and accused of “not listening to people,” but wanted people to take that into consideration as the decision was made tonight.

“There is not a good spot for any of this. I am anxious to have a discussion with the council and figure out what our best options are on a handful of options that are not very good,” said Stonebarger. “I am ready for the conversation.”

Councilman Gene Clare called the item a controversial, difficult and emotion decision for everyone in the community.

“It would be really easy for me to stay home every day this past couple of weeks, but being a public figure it’s been an extremely hot topic for our community,” said Clare. “This is a democracy at work, I am a long-time educator. What I have found in our democracy is that we may not always get what we want, but we do get to be heard and voice our opinion. I appreciate and thank you for your passion. “

He noted that a vast majority of citizens of Brentwood do not want a homeless shelter in the city.

“There are two levels of impact on a homeless shelter. First is a property owner. The second level are those folks in the surrounding community. I have always believed strongly in the rights of the individual property owners. It’s my conviction is we can eliminate the first level. If we have to build a homeless shelter we can remove the first level by removing the property owner and we can do that by designating a city owned property instead of private owned property,” said Clare. “PD-38 is private property with existing residences, businesses in close proximity. I stand by my original vote.”

Councilman Steve Barr went through the process highlighting this began in January with the planning commission with lots of discussions of where to place this whether it be on private property or public property.

“I want to remind the council that I cautioned everyone that just like tonight, once the neighbors heard it was in their neighborhood they would be out,” said Barr. “It shouldn’t be a surprise to anyone that when that decision to put it on public property and the notices went out that those neighbors were offended by that. I get it. So there we were with the Planning Commission with the people from Jane Way and the first thing they do is pick another site and move it.”

Barr noted the original site was PD-38, it was then changed to Jane Way off Brentwood Blvd followed by a third site near the police station.

“The reason is its PD-38 is because we spent a lot of time researching. Unfortunately there is not a perfect spot and there is no spot that is away from a school or a park. It’s not that big of a community,” said Barr. “There is no place away from a park or school.”

Barr stated it’s not just the money from the state, it’s the law.

“If it was about the money, we would find another way,” said Barr. “There is always a way around the money.”

Vice Mayor Joel Bryant called himself “a nobody” from this town who was elected who ran specifically because his family lived here and cares about families saying he has been a consistent and absolute supporter of public safety.

“I make no apologies for being an absolute constitutionalists or an American. It’s my firm belief that the problems we are seeing culminate in our society is because there is absolute lawlessness in the flaunting of the law from the Presidency all the way down to local governments. If people would obey the law we would not have to worry about creating new laws that are not being enforced,” said Bryant. “That is my opinion.

Bryant noted he has worked with homeless and gang members from Washington DC, Baltimore, Los Angeles, Long Beach

“I’ve been cut on, puked on, messed on, urinated on, cussed on, wrestled, fought, bit, and scratched by homeless. I worked as one of the directors at Lighthouse (Homeless Shelter) in Long Beach, there is nothing you can tell me about the dangers of homelessness that I haven’t lived,” said Bryant. “You haven’t exaggerated the problem because you can’t exaggerate it and I know that.”

He said that if this was about the finances, this would be a simple issue. But isn’t about finances, but rather the law saying if they do not make a decision the State will make it for them.

“There is no if, they absolutely will,” said Bryant. “There is no us versus you. We all live here. This is an issue that will affect each and every one of us. I don’t take this lightly and I assure you none of the other councilmembers take lightly.

Bryant called this one of the most difficult decisions this council had to make.

“I am upset about having to make this decision as any of you are. I have to live with it. I have kids here, I work with your kids in town,” said Bryant.

As the audience shook their head, Bryant lectured a heckler.

“You don’t know who I am, how can you shake your head, you have no idea who I am and you presume to judge me for a decision that is going to affect me and you act like I don’t care about it,” said Bryant. “How dare you. I am not going to sit here and challenge any one of you because I am one of you. We live here. This is going to affect all of us and I have to make a decision that is going to affect my kids and grand-kids to.”

Bryant again confirmed with staff if they do not approve this, if the state would come in and select for them. Staff confirmed this could happen and from what they have seen, cities do not win these types of lawsuits.

Mayor Bob Taylor asked if this was state law. Staff explained that it was a state law and shared the impacts where a judge could decide where it needs to go.

“This is a tough decision. Is there any way to temporary that we do designate a spot but we put together a group of citizens from various communities of Brentwood and have them negotiate or involved with the city to pick a spot in unison, “asked Taylor. “I drove around the whole city, there is not a spot in this city that is a good spot. Someone asked where I live, I live in Summerset. They call it Gods waiting room, how would you like to live there. But the idea is there has to be a way we can work this out.”

The City Manager stated that there is no “temporary” designation that is going to be approved by the Housing Department at the State level. He did say they could direct staff to continue to look for an alternate site they could get it amended in the future—that would make it temporary.

“I do not want to give lip service and say we are going to do this and then we don’t,” said Taylor. “No, I would like a plan. I don’t know who does a plan but staff can direct that and we come back in time and diligently work on putting together a plan to listen to the public.”

The City Manager said yes. He also explained that if the homeless shelter is zoned in one spot and say private property sells to a mall, the state says you have to come back and re-zone because now you do not have space.

Councilman Stonebarger stated the council cannot kick the can down the road or selecting another site is not going to solve any of the issues the city has with zoning.

Councilman Clare advocated again for the area near the police station saying they control it and would not build a homeless shelter. Staff then highlighted whether or not a lawsuit may determine if the State will own it or the city will own it based on Redevelopment.

Vice Mayor Bryant says he wanted as much local control as possible that they can maintain so they can have as many choices as they can while going through the process.

“There is no good place for this. I don’t want this, but I would rather have the ability to make the decision as a community through the process than the state tell us how and when to do something,” said Bryant. “Anytime the state or government gets into something that local groups do better the state does it worse. One of the reasons Brentwood does not have a greater level of homeless problems is because we have a fantastic faith community and non-profit community that has stepped in voluntarily and have focused on those who have the greatest needs. That is the job of them. They do this very well and are excellent with it. The city doesn’t need to be involved in it and the state doesn’t need to be involved.”

The Council approved the environmental resolution, followed by the resolution of the site and a recommendation to find another site in a 4-1 vote with Clare being the dissenting vote.

Full Staff Report (97-pages)
http://brentwood.granicus.com/MetaViewer.php?view_id=38&event_id=339&meta_id=158368

ANALYSIS
Municipal Code Amendments

The following provides an overview of the Municipal Code amendments that are included as part of this proposed rezone:

Emergency Shelter Ordinance

On January 1, 2008, Senate Bill 2 (SB 2) went into effect. SB 2 requires that jurisdictions provide at least one zoning designation that allows the location of emergency shelters without discretionary approval. SB 2 also requires that the zoning text identify a site with sufficient capacity to meet the local need for an emergency shelter, requires that all jurisdictions provide at least one such site, and prohibits jurisdictions from denying a proposal for an emergency shelter, transitional housing or supportive housing, if it is needed and is consistent with the applicable zoning and development standards. In other words, the changes required by SB 2 require planning for emergency shelters and siting of emergency shelters, transitional housing and supportive housing. Currently, the City’s Municipal Code does not permit emergency shelters as a permitted use in any zone and is not consistent with the requirements of SB 2.

If a jurisdiction can demonstrate that it has an emergency shelter that meets its existing needs, it must still designate a zone where emergency shelters are permitted, but it may require a conditional use permit. Shepherd’s Gate provides shelter for women and children within the community, however, it does not fit the definition of an “emergency shelter” contained within the Government Code as it does not limit the length of time that services are provided to less than six months. Therefore, the City is required by State law to identify a zone where an emergency shelter is a permitted use.

The 2012 Housing Element provided action programs (Action Programs 1.1.4 and 4.2.2) to address SB 2 by requiring that the City amend its zoning ordinance within one year to allow for siting of an emergency shelter as a permitted use within a zoning designation. This ordinance adoption has not yet occurred. HCD has stated that it will not certify the Housing Element unless an emergency shelter zone is adopted which complies with SB 2.

Included as part of this rezone is an Emergency Shelters ordinance (Chapter 17.770). The ordinance has been drafted to meet the requirements of State law (SB2), yet provide for occupancy, locational, and management restrictions to the extent allowed by law. Previously, the Land Use and Development Committee expressed concerns regarding the County’s estimate of the homeless population in Brentwood. After consultation with Police Department staff and DeNovo Planning Group, who is the consultant working with staff on the Housing Element update, it was determined that an estimate of 15-20 homeless persons would be included in the draft 2015 Housing Element update. The Emergency Shelters ordinance ties occupancy of any one, or combination of emergency shelters, to this number identified in the Housing Element.

Planned Development 38

The 2012 Housing Element identified four potential shelter locations, including: the Brentwood Boulevard Specific Plan, north of Lone Tree Way; Planned Development 38; Planned Development 48 at the southwest corner of Lone Tree Way and Shady Willow; and Planned Development 53 at the southeast corner of Lone Tree Way and the new Highway 4. Staff analyzed these locations for their suitability and feasibility by using the following criteria and presented this information to the Land Use and Development Committee:

• Availability of infrastructure at the site
• Adequate size of the available parcels to accommodate facilities to meet the needs of the homeless within the City of Brentwood
• Large existing buildings within the zone suitable for conversion to shelters
• Compatibility with surrounding zoning districts/uses
• Proximity of the zone to public transportation
• Proximity of the zone to social services for the homeless
• Proximity of the zone to potential employment areas
• Proximity of the zone to schools and parks

At its July 15, 2013, and December 16, 2013, and February 19, 2015, meetings, the Land Use and Development Committee discussed the potential zoning locations for an emergency shelter, including City-owned properties, and determined that Planned Development 38 would be the most compatible zone for allowing an emergency shelter by right as a permitted use. A site map of PD-38 is included in this staff report with Attachment 2.

The PD-38 text amendment adds emergency shelters to the permitted uses within Subarea C of the zone. This amendment will satisfy the State requirement for allowing emergency shelters by right. It should be noted that any emergency shelter locating within this zoning district would be required to adhere to all of the requirements contained in the Emergency Shelters ordinance discussed above. It should also be noted that amending the text to allow an emergency shelter by right does not require the City to actually build a shelter, nor does it necessarily mean that a shelter would ever be built at this location. Allowing an emergency shelter as a permitted use would also not prohibit other development from occurring in the zone that is either permitted or conditionally permitted. Should the PD-38 zone become completely built-out, thereby no longer affording the capacity for an emergency shelter, then another zone would need to be identified.

Conclusion

The proposed modifications to the Municipal Code will insert and modify text to comply with State Law, and will implement actions programs contained in the 2012 Housing Element, thereby allowing the City to move forward with the 2015 Housing Element update and HCD certification process prior to the May 31, 2015, deadlines.

It is recommended that the Council adopt a resolution approving the Negative Declaration for this project and adopt an ordinance approving Rezone 14-010 amending the Municipal Code by adding Chapter 17.770 Emergency Shelters, amending Chapter 17.488 PD-38 (Planned Development Thirty-Eight) Zone, amending Chapter 17.030 Definitions, adding Chapter 17.760 Reasonable Accommodation for Persons With Disabilities; amending Chapter 17.720 Density Bonus Program; and amending Chapter 17.725 Affordable Housing.

Should the City not adopt the Housing Element by May 31, 2015, the City will lose local control over the location of an emergency shelter within its boundaries. State law prohibits a city from disapproving an emergency shelter on the grounds that the proposal is inconsistent with the City’s zoning and general plan if (1) the site is designated as commercial, industrial, or multi-family under the General Plan; and (2) the City has failed to identify a zone or zones for an emergency shelter as a permitted use. Moreover, the City will revert to a four-year housing element cycle versus an eight-year cycle.

In addition, if HCD does not certify the housing element by May 31, the City will no longer be eligible for any OBAG funding until 2022/23 and the Measure J funds would also be at risk.