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HomeMy WebLinkAboutMINUTES - 06142005 - D4 - i TO: BOARD OF SUPERVISORS • - = Contra FROM: DENNIS M. BARRY, AICP Costa COMMUNITY DEVELOPMENT DIRECTOR �o;. , ,. County rq couK'� DATE: JUNE 14, 2005 SUBJECT: MUTUALLY AGREEABLE URBAN LIMIT LINE MEASURE J SPECIFIC REQUEST(S) OR RECOMMENDATION(S) & BACKGROUND AND JUSTIFICATION RECOMMENDATIONS CONSIDER the action from the June 8, 2005 Special Meeting of the Contra Costa Transportation Authority in approving Option #2 on the environmental review process for the development of a Mutually Agreed-Upon Urban Limit Line, and DETERMINE the next steps to be taken. FISCAL IMPACT None. BACKGROUND / REASONS FOR RECOMMENDATION The Contra Costa Transportation Authority(CCTA) held a Special Meeting on June 8, 2005 to review and consider three options on the environmental review for the development of a Mutually Agreed- Upon Urban. Limit Line and to clarify specific process requirements it will impose for a local jurisdiction's compliance with the Measure J - Urban Limit Line Principles. Attached as background information is a copy of the June 8, 2005 report to the CCTA that describes the three options. Measure J envisioned that the cities, towns, and the County would come to mutual agreement on an Urban Limit Line. However, after many months of discussion no agreement has been reached. By unanimous vote,the CCTA approved Option#2: The County, Each City/Town Proceeds With Its Own Environmental Review. Under this option, a city//town and the County would be free to individually—or in groups — pursue environmental review of a specific Urban Limit Line proposal, or various Urban Limit Line proposals, and the Contra Costa Transportation Authority would not have any involvement. The Board of Supervisors may wish to consider the comments from the Board `s representatives to CCTA in attendance at the special meeting on June 8th and determine the next steps to be taken by the County now that CCTA has decided how it will proceed on this matter. CONTINUED ON ATTACHMENT: X YES SIGNATURE RECOMMENDATION OF COUNTY ADMINISTRATOR RECOMMENDATION OF BOARD COMMITTEE APPROVE OTHER SIGNATURE (S): ACTION OF BOARD ON 14 2.do APPROVED AS RECOMMENDED OTHER)( I HEREBY CERTIFY THAT THIS IS A TRUE AND VOTE OF SUPERVISORS CORRECT COPY OF AN ACTION TAKEN AND UNANIMOUS(ABSENT} ENTERED ON THE MINUTES OF THE BOARD OF AYES: NOES: SUPERVISORS ON THE DATE SHOWN ABSENT: ABSTAIN: 1)>SC%A., !Cr i1Z)0 oNLy , ���D�� A,,Tt/kCKf,1> Contact: Patrick Roche,CDD-Adv. Plan(925-335-1242) ATTESTED (a/ I � S cc: CAO JOHN SWEETEN, CLE K OF THE BOARD OF Clerk of the Board SUPERVISORS AND COUNTY ADMINISTRATOR County Counsel R. McCleary, CCTA B , DEPUTY Attachments (1) 1. 6/8/2005 Memorandum to CCTA, Subj: The Urban Limit Line Requirement of Measure J — Options for Environmental Review and Clarification of Parameters of Compliance ADDENDUM TO ITEM D.4 June 14, 2005 On this day,the Board of Supervisors considered the action from the June 8,2005 Special Meeting of the Contra Costa Transportation Authority(OCTA)in approving Option#2 on the environmental review process for the development of a Mutually Agreed-Upon Urban Limit Line. Patrick Roche of Community Development presented staff's report,noting that CCTA's approval of Option#2 allows each jurisdiction to independently pursue environmental review of an Urban Limit Line in order to be in compliance with the guidelines of CCTA's Growth Management Plan,to qualify for CCTA Return to Source funds. Supervisor Glover reported that the issue before the Board is how to proceed for the County's own ballot measure. He said the Board could adopt a Negative Declaration for the County's 2004 Line,or could incorporate into that the position that the Board took earlier in the ULL discussions: the Plan C with Worth Amendments.He asked staff whether any of those Amendments,as revised and previously agreed upon by the Board("C+5 modified"),could put the County at risk of a lawsuit. Mr.Roche replied that from staff s review,the risk would be relatively low,as none of the Amendments rise to the level of additional environmental impacts.He further stated that most of the points of the Worth Amendments have already undergone environmental review, and that for each proposed action there is a supporting city document. Chair Uilkema suggested proceeding under the assumption that the County will be sued,and asked if, working under this assumption, a Negative Declaration is the best way to proceed. She asked if, assuming the County could be forced to do an Environmental Impact Report(EIR)anyway, in the interest of being proactive it would it be best to just do an EIR first. Silvano Marchesi,County Counsel,noted for the record that the conclusion of which document is appropriate has to come after the initial study process, so the views expressed today are informal and preliminary. Supervisor DeSaulnier proposed that in response to a letter from the City dated May 10,2005, staff communicate with the City of Concord to clarify that the intention of the language in the Amendment regarding the Concord Naval Weapons Station is simply to identify a process for moving the Line out, and that if the Department of Defense surpluses that land,the only thing the Amendment language does is trigger the process of a review to consider moving the Line out.He further noted that there would be no request for indemnification from anyone as the County is going forward on its own,and that a vote is not mandated in the Amendment language. Chair Uilkema noted that it is now known with certainty that the Governor will call a Special Election in November 2005. Mr.Roche said that the timeline would be very tight to make the November 2005 ballot,and that it may not be a realistic goal. Supervisor Glover suggested the target date be November 2006, in good faith,as that was the date that had been discussed at the Authority(OCTA). Chair Uilkema proposed evaluating the possibility of both the 2005 and the 2006 elections, in order to consider all the alternatives. The public was invited to speak.No public testimony was provided. No action was required 40 CCTA June 8,2005 Subject The Urban Limit Line (ULL)Requirement of Measure J—Options for Environmental Review and Clarification of Parameters of Compliance Summary of Issues Measure J envisioned that the cities, towns and County would come to mutual agreement on an Urban Limit Line (a"MAC-ULL") by December 311 2004.' However, after 1-1/2 years of discussion no agreement has been reached. Under Measure J, "If no Countywide mutually agreed upon ULL is established by March 31, 2009, only local jurisdictions with a voter approved ULL will be eligible to receive the 18%return to source funds or the 5%TLC funds.112 The Authority needs to clarify, through selection of one of the three options identified or some variation thereof, the specific process requirements it will impose for local jurisdiction compliance with the Measure J ULL principles, the financial commitment, if any, it is willing to make towards defraying costs associated with those processes, and whether or not it will indemnify local agencies for their decisions in their individual environmental processes. Recommendations Staff recommends that the Authority review the three options and provide specific direction regarding (a) process requirements for local jurisdiction compliance, (b) the financial commitment and degree of indemnification it is willing to make towards defraying associated process costs, and(c)clarify existing ambiguities and uncertainties contained in the ULL Principles. With regard to Authority financial assistance and indemnification, staff recommends that the Authority treat all local jurisdictions consistently. Financial Implications Staff estimates that Authority costs could range from $0 to $1.5 million, depending upon the option chosen and level of its financial commitments. Options See Attachment B. Attachments A. Letter from Authority to Gayle Uilkema, Chair, Contra Costa County Board of Supervisors, re Authority's May 18"Discussion of Options, May 23, 2005 B. ULL Options for Consideration By the Authority: Discussion & Costs C. Letter from Authority legal counsel to Robert K. McCleary re ULL Implementation and Compliance Requirements, March 14, 2005.3 D. Measure J ULL Principles of Agreement.4 Changes from Committee Not Applicable. Background Measure J Transportation Expenditure Plan, "Attachment A: Principles of Agreement for Establishing the Urban Limit Line,"p. 25,Principle#3 (July 21, 2005) Ibid, Principle #7. Nossaman, Gunther, Knox& Elliott, LLP, "Measure J/Transportation Expenditure Plan Growth Management Program-Urban Limit Line("ULL")—Implementation and Compliance Requirements (March 14, 2005) 4 Measure J TEP,o . cit. See P. 21 of Attachment C for copy CADocuments and Settings\Danice Rosenbohm\My Documents\WPFILES\3-CCTA MTG\2005 MTGS\June 8th Special Meeting\ULL Item.doe 1.-1 CCTA June 8, 2005 . Meetings to reach agreement on a MAC-ULL have taken place for at least the past 1-1/2 years, including facilitated efforts starting in August 2004, with no success. As a result, the combined sub-regional task force and the Authority had urged Contra Costa County to perform an environmental review that would look comprehensively at the issues raised by all jurisdictions. However, as part of the discussion at its meeting of May 18, 2005, the Authority was advised by its legal counsel that adoption of a specific ULL by the County, as an outcome of that process, would"taint" the use of the process for lines that were more expansive than the County's ULL. After considerable discussion, the Authority stated that it would hold a special meeting June 8, 2005 to consider three specific options for proceeding forward to address Measure J ULL requirements. The options provided alternatives by which local jurisdictions could pursue "a voter approved ULL" in the absence of a MAC-ULL. . Legal Counsel has previously provided the Authority with an opinion(March 14, 2005) regarding ULL implementation and compliance requirements' that responded to questions raised and noted areas where clarification of the Authority's expectations and compliance requirements appear to be necessary. Legal counsel has stated that the ULL is for purposes of compliance with Measure J.and does not necessarily require a local jurisdiction to adopt binding land use restrictions. As Counsel has noted, the Principles are not a model of drafting clarity. Nevertheless, in staff's view key tests that can be drawn from the Principles, in the absence of a MAC-ULL, are: • Only local jurisdictions "with"a local voter-approved ULL are eligible to receive "return to source" (18% local streets and roads)and TLC(5%) funds; and • Submittal of an annexation request to LAFCO for an area outside a locally approved or MAC- ULL constitutes non-compliance with the Measure J requirement.6 Need for Authority Direction Based on the above compliance tests and the ambiguities in the Principles, staff believes that the Authority has three essential tasks before it: 1. Select which process option it will adopt from the three that it circulated from the May 18`h meeting, or variations thereto; 2. Clarify the associated requirements for local jurisdiction compliance; and 3. Determine its financial commitment to the process, and the degree to which it is willing to indemnify local jurisdictions' ULL processes. Process Options The process options, a brief discussion of each, and a description of potential cost implications, is included as Attachment B. In reviewing these options, staff suggests that the Authority should seek to avoid endorsing any specific ULL, aim for a simple, straightforward approach that will keep the process and costs for compliance low and, with regard to Authority financial assistance and indemnification, treat all local jurisdictions consistently. Staff seeks direction on which option or variation thereof the Authority wishes to endorse. 5 Ibid. b Measure J TEP, op. eit.,Principle#8. CADocuments and Settings\Danice Rosenbohm\My Documents\WPFILES\3-CCTA MTG\2005 MI'GS\June 8th Special Meeting\ULL Item.doc L-2 CCTA June 8,2005 Clarify Associated Requirements The Authority is not a land use agency and the Principles do not specify that the ULL must be legally binding on land use decisions. Therefore, legal counsel has noted that for purposes of compliance with Measure J, a local jurisdiction would not necessarily be required to adopt a binding ULL. Consequently, under any of the options it would be possible for the Authority to specify that a jurisdiction could place an "advisory" measure on the ballot defining a ULL for purposes of compliance with Measure J that would not be part of the jurisdiction's land use planning process, and therefore might not entail preparation of an environmental review. (Subject, of course, to local legal counsel determination.) If the voters of the jurisdiction approved that line, it would have validity only as to whether or not annexation was sought beyond that line, which would trigger non-compliance (although see below for a potential exception.) Under Options 1 or 2, where local jurisdictions independently pursue compliance, another variation is feasible and could be endorsed by the Authority. (Option 3 envisions a similar scenario,but with a more formal structure.) Contra Costa County has indicated its intent to update its current ULL, and will need to go to the voters for approval under the provisions of Measure J when its current line expires in 2010. Based on legal counsel's opinion, to the extent that cities and towns can accept the line ultimately approved by Contra Costa County as it applies to their local jurisdiction, the city or town could be deemed to have a "local voter approved ULL" if a majority of the voters within a jurisdiction approve that line. The Authority could set various thresholds for accepting that vote as meeting the "local voter approved ULL" test for compliance with Measure J, such as: • Accepting the results of the vote with no further specific requirements; • Requiring a local jurisdiction resolution, transmitted to the Authority at any time prior to March 315 2009, stating that the County line is its ULL for purposes of Measure J compliance; • Requiring such a resolution from the jurisdiction before the election; • Requiring the local jurisdiction to act as a responsible agency and file a Notice of Determination, or take other appropriate action under CEQA regarding its adoption of the line. Another- issue that has arisen concerns Principle 8, which states that in the absence of a local voter approved ULL, submittal of an annexation request to LAFCO outside the countywide voter approved ULL will constitute non-compliance with the Measure C (J) Growth Management Program.' Although the drafting of Principal 8 is not a model of clarity, it suggests that any application to LAFCO would trigger non-compliance. However, it has been pointed out that a landowner can apply to LAFCO for a sphere of influence or annexation without the approval of a city or town. In that instance, the Authority may wish to specify one or more of the following conditions: • If the city or town has taken no fon-nal action to support the annexation request, it will not be found out of compliance; or • In that instance, it will not be found out of compliance unless it takes formal steps to initiate a planning process to support the annexation, support upzoning of the land, and/or formally seek annexation, unless it has a voter approved ULL that incorporates the area at the time of such actions, or within a specified time period provided by the Authority to correct the "defect" in order to receive return to source funds. The Authority may also wish to discuss how a jurisdiction that is judged to be out of compliance with the ULL requirement at some point in time could subsequently return to compliance, and how compliance would be demonstrated. Ibid,Principle 8. 8 Currently,a jurisdiction would lose at least the two years of funding associated with the two-year reporting period. C\Docurnents and Settings\Danice Rosenbohm\My Documents\ WILES0-CCTA MTG\2005 MTGS\June 8th Special Meeting\ULL Item.doc L-3 OCTA June 8, 2005 Authority Financial Commitments&Indemnification Measure J assigns no responsibility to the Authority for defraying the cost of local jurisdictions' compliance with the ULL requirement. However, when the Authority envisioned a MAC-ULL environmental review process, or a consolidated "master EIR" document that would be undertaken by the County but that would consider all options in order to be usable by all jurisdictions, there was general sentiment on the Authority to defray the costs of preparation. The County indicated it would undertake such an approach only if the Authority indemnified it for the process and ultimate project approved by the County. Based upon the project definition chosen by the County as a subset of the ULL sought by some jurisdictions, and Authority legal counsel's observation that such an outcome would "taint"jurisdictions that sought to use the County's document to support a more expansive line in their area, it is no longer apparent the extent to which the Authority would be willing to pay for environmental review of a County ULL. The Authority has not provided an indication of whether or not it would indemnify another agency's environmental review process and chosen project. However, the request does raise significant issues, since the Authority would have no control over either the process or the outcome. The Authority has also never discussed whether it would defray the cost of one or more elections—with or without a MAC-ULL Below is a cost matrix showing approximate estimated costs and who might bear them under the Options in Attachment B. Costs are approximate and would vary depending upon a number of factors: for example, whether or not the Authority indemnifies local Jurisdiction(s) environmental documents, and whether or not the Authority defrays the cost of elections. Election costs would vary by jurisdiction. No effort has been made to fully quantify the cost of defense for local jurisdictions should they separately pursue environmental review of a local ULL. Costs would be zero for concurring jurisdictions under Options 1 and 2 if the Authority decided that a local jurisdiction could rely upon a countywide measure passed in its jurisdiction under those Options; ergo only jurisdictions wishing a line different from that ultimately approved by Contra Costa County would incur environmental review and election costs. "ROUGH" SUMMARY OF AUTHORITY AND LOCAL ESTIMATED COSTS (x $1,000) LOCAL JURISDICTIONS AUTHORITY COUNTY CONCURRING NON-CONCURRING (with Count line) (Each Option 1 $350-$11100 $0 to $750 $0 to minor $30-$300 Option 2 $0 $150-$250 $0 minor $30-$300 Option 3 $700-$11500 $0-750 $0 to minor $0 to $150 CADocuments and Settings\Danice Rosenbohm\My Documents\WPhILES\3-CCTA MTG\2005 MTGSVune 8th Special Meeting\ULL Item.doc 1.--4 Attachment A CONTRA COSTA TRANSPORTATION AUTHORITY May 23, 2005 ;oMMfsslofvFRs: Hon. Gayle B. Uilkema, Chair Board of Supervisors Janet Abelson ;hair 651 Pine St., Rm. 108A ?onaid P.Freitas Martinez, CA 94553 lice-Chair RE: Transmittal of the Authority's Discussion on May 18th, 2005 Regarding the Measure J ULL. harlie Abrams Maria Alegria Dear Chair Uilkema: dewelfArnerich At its May l 8th meeting, the Authority continued its discussion on the environmental john Gioia review process for the development of a Mutually Agreed-Upon Urban Limit Line =ederal Glover (MAC-ULL) as envisaged in Measure J. At the conclusion of its discussion, the Authority requested that I forward a letter to you with copies to the Cities regarding ►�ichael F.Metcalf the points discussed. The Authority will hold a special meeting on Wednesday,June 3' th a,l Nix 8 , 2005, where the opinions of the County, cities and towns on how best to proceed it. fierce will be discussed. Oaria Viramontes There are at least three options to be discussed, as follows: 1. The County proceeds with its EIR as described in the County's Board Omer, or with a Project Description of"Determining a Mutually Agreed-Upon ULL", with Authority support. In this circumstance, the County would prepare ?obert K McCleary and EIR, the Authority would pay for the consultant and staff costs, :xecutive Director and potentially indemnify the County against future litigation. The Proposed ed Project Alternative would be"C+5 modified," or the Authority suggestion of "Determining a mutually agreed-upon ULL." All parties involved would continue to work toward consensus on a MAC-ULL, which the EIR could 1478 Buskirk Ave. serve. Should agreement fail, those jurisdictions wishing a different ULL wite 100 from the County's final choice would have to conduct a separate Ileasant Hill environmental process -- in parallel or subsequently -- to put a different ULL ;A 94523 on the ballot, but could utilize the studies prepared for this document. 2. The County, each city and town proceeds with its own environmental review, IHONE with no Authority involvement. In this option, cities, towns and the County )25/407-0121 would be free to individually-- or in groups--pursue environmental review 7Ax: of a specific ULL or various ULL options. The Authority would not fund any X251407-0128 of the efforts. ittp./ivvww.ccta.net Gayle B. Uilkema May 23, 2005 Page 2 of 2 3. Two ULL Options would be pursued: (a)the County,and cities and towns agreeing with the County,would perform environmental review on a line that they agree upon;and(b)the balance of the cities and towns would pursue environmental review of an alternative ULL,both with Authority financial support Under this option, a group or groups of Cities could designate a lead agency, and/or create a JPA, to develop a LJLL EIR that addresses the specific line they envision, while the County proceeded with a separate process together with the cities and towns agreeing with its proposed alternative. By way of courtesy copies of this letter to all of the cities, the Authority encourages receipt of a response from the County, cities and towns in time for its June 8 special meeting. Please do not hesitate to contact me should you have questions. Sincerely, Janet Abelson Chair, CCTA cc: Authority Members Members, Board of Supervisors,Contra Costa Mayors of Contra Costa City Managers of Contra Costa Jane Pennington, Clerk of the Board CADocuments and Settings\Danice Rosenbohm\Local Settings\Temporary Internet Files\OLK7E\5-18-45 CCTA Action.doc Imo,ttac.,liment f 7) ryl� 4- W5 L 7D 0 70 Ln Ib LLJ -o u-, C- LAI I tj 0- > ER -J cr C--C L"1 1.)1 C— > CA IM 1-1 C, L) C:� > >1 ct C: Ur— ! :!; t U ,.1 � ;•3 f: �- � ? 7'„C C L J � t.J •--' J ��", 7Fk -70 c C > C C- M (j C4 C- Cc-!D SV" C-4 > I.W C- C- L- I-) 7= 7D C, L- z — > > IM I-J C.) cz. I— J Zoo > -,o coo C.) > C. " L- C 1 CL-C 21u C- ci A C. 7D —13 crol cc j C— C-1 > 7= Id + 4, C C— CL 7) > I-e cf^, U r 4j �.J �✓ r r ✓ r � � J .yr ' t ' ICI .r C-Mme' 5 �'`�•.ir r :^r r 1� � 4✓ � `�„ 1 y � i ' r r� .r H .f :,i �, v � � r, w ►� r�"' !.ate. ��� .. ct f`"'� 'yrs � L..• .'moi �..- ✓ r^ ••- ✓ moi r i^` ' J D tz .�••�i Fr .r o t r t ' ;- ✓ ! r. r .0 IX J v J 'J � am- an lalhr�iul' C.......... ..... ..... ..... nuvc Elliott LLP MEMORANDUM To: Robert K. McCleary From: Nossaman, Guthner, Knox & Elliott, LLP Date: March 14, 2005 Re: Measure J/Transportation Expenditure Plan Growth Management Program/Urban Limit Line ("ULL") — Implementation and Compliance Requirements File No. 030510-0115 This is in response to your request for our views on certain Contra Costa Transportation Authority ("Authority") Measure J Growth Management Program ULL requirement implementation issues. BACKGROUND The Measure J Transportation Expenditure Plan ("TEP") included Principles of Agreement for Establishing The Urban Limit Line ("Principles") that are attached to and made a part of the Growth Management Program ("GMP") element of the TEP. The Authority and the cities and county are in the process of seeking to implement provisions of those ULL requirements. A copy of the Measure J Growth Management Program and the Principles are attached to this memorandum as Attachment A for easy reference. The Principles outline the actions required to be undertaken by the cities and the County of Contra Costa to implement a mutually agreed upon, voter approved countywide ULL ("MAC-ULL"). Implementation of and compliance with a MAC-ULL or, for local jurisdictions that opt out, either a locally approved "alternative ULL" or reliance on an existing ULL are requirements for each local jurisdiction's receipt of 18% local streets and roads (return to source) and 5% TLC funds under the Measure J TEP. The discussion that follows does not consider or analyze the potential legal enforceability of a ULL as a land use condition in the various contexts discussed. The focus of this ULL Final.DOC Memorandum March 14, 2005 Page '? discussion is compliance with the Measure i GMP by local jurisdictions, which may not depend upon the legal enforceability of the ULL. We note that the Authority itself does not have express powers to regulate land uses, but as the transportation planning agency and project delivery and program manager for the county,, the-Authority has designed and adopted the GMP requirements in the TEP to encourage local jurisdictions to consider and address the transportation impacts of their land use decisions. QUESTIONS PRESENTED I. If there is a MAC-ULL, are cities whose governing bodies and/or voters did not approve the MAC-ULL in compliance with the GMP as long as they comply with the MAC- ULL? 2. If there is a MAC-ULL, under what conditions may a city seek annexation of property outside the MAC-ULL without being Judged out of compliance with the Measure J GMP? 3. If the requisite majorities of the cities and the Board of Supervisors are unable to agree on a MAC-ULL, could a countywide measure placed on the ballot fixing a new ULL be subsequently relied upon by a Jurisdiction for compliance with the Measure J GMP ULL conditions if the voters in such jurisdiction approved, by majority vote in the jurisdiction, the ULL? 4. If there is no MAC-ULL, would a subregional ULL consisting of participation by more than one local Jurisdiction but less than the entire county be effective with respect to participating local Jurisdictions for Measure J GMP compliance purposes, if it is approved collectively by the voters of the local Jurisdictions within the subregional area? L.A.1- FMADOC Memorandum March 14, 2005 Page 3 5. If; under the circumstances stated in Question No. 4, a subregional ULL has been created by majority vote within a subregion, would a local jurisdiction whose voters had not passed the subregional ULL be in compliance with the GMP? 6. would a local jurisdiction not participating in fonnulating and-voting on a subregional ULL under circumstances stated in Question No. 4 be in compliance with the GMP? 7. At what point in time do the Measure J requirements apply? SHORT ANSWERS 1. If there is a voter approved MAC-ULL then a local jurisdiction, the governing body of which did not approve the MAC-ULL, could in theory be subject to either-of the following: (a) Non-approval or rejection of the MAC-ULL by a governing body pennits, but does not require, such jurisdiction to comply with the Measure J GMP by (i) developing and submitting an alternate local jurisdiction ULL to its voters, or (ii) relying on an existing voter approved ULL. A disagreeing local jurisdiction would also be in compliance with the Measure J GMP by complying with the MAC-ULL and not seeking to annex property outside the MAC- ULL; or (b) Non-approval or rejection of the MAC-ULL by a governing body requires such jurisdiction to either(i) adopt and obtain `,oter approval of an alternate ULL, or (ii) rely on an existing votes- approved ULL. The option to comply with the MAC-ULL would no longer be available. Since it is appears from statutory interpretation techniques and by its express language that the methods of compliance under Principle 6 are pennissive and supplemental to ether methods of compliance in the Principles, we conclude that a local jurisdiction's compliance through adherence to the MAC-ULL should still be available as specified in (a). ULL Final.DOC Memorandum March 14, 2005 Page 4 1) application 14- In the absence of a locally voter approved ULL, submittal of appl*cat'on to LAFCO to annex property outside the MAC-ULL would constitute non-compliance with the GMP. Without having a voter approved ULL that incorporates the property, a local jurisdiction would be out of compliance with the GMP. 3. If there is no MAC-ULL, only local jurisdictions "with a voter approved ULL" would be compliant with Measure J GMP requirements. The GMP compliance provision specifically requires a "'local Jurisdiction's voter approved ULL." It is unclear whether a local jurisdiction's voter approved ULL would be limited to a locally focused and approved ULL, or would also include a subregional or countywide ULL approved by the voters in the local jurisdiction. The description in Principle 6 (which technically applies only if there is aMAC- ULL) addresses alternatives to a MAC-ULL for local jurisdictions that "disagree" with the MAC- ULL, and suggests that the drafters of the Principles may have intended to Ili-nit the meaning to a locally focused and voter approved ULL. However, the plain meaning of the words in the Principles suggests that a broader interpretation could be construed and might be appropriate. Accordingly, if the voters have approved a new ULL countywide (other than a MAC-ULL), regardless of the initiative's sponsors, and the voters in a particular local Jurisdiction have also approved the new countywide ULL to apply to such jurisdiction, we conclude that such approval could be the basis for compliance with the GM.P for that local jurisdiction. 4. A subregional ULL that is a voter approved ULL should meet Measure J GMP compliance requirements if it is locally approved by the voters in the relevant local jurisdiction. As noted above there is some ambiguity as to whether the "local jurisdiction voter approved" ULL requirement references a locally focused ULL on the local Jurisdiction ballot, or can include approval by the local Jurisdiction's voters of a broader ULL such as a subregional or countywide ULL. 5. The Principles allow a local jurisdiction to rely on its "voter approved ULL" as an alternative to compliance with a MAC-ULL. Even assurning that the voter approved L.A-L Final.DOC Memorandum March 14, 2005 Page 5 requirement allows reliance on a subregional or countywide ULL if the ULL has been approved by a majority of the voters within the subregion, a local jurisdiction participant in the subregional ULL, the voters of which have not appl-oved the subregional ULL, would not be in compliance because the Principles and the GMP require local voter approval for a ULL in order for there to be Measure J GMP compliance. 6. The Principles require that unless a local jurisdiction is in compliance with a MAC-ULL, such local jurisdiction must have a local voter approved ULL. Absent a MAC-ULL, a local jurisdiction that did not participate in and have its voters approve a subregional ULL or any other local voter approved ULL would be out of compliance with the Measure J GMP. 7. According to Measure J, the sales tax approved by the voters in November 2004 is for a 25 year period commencing on the expiration of the Measure C transportation sales tax. Since the Measure C sales tax does not expire by its tenns until March 31, 2009, collection of the Measure J sales tax does not commence until April 1, 2009. In accordance with the Authority's implementing statute, the TEP, of which the ULL requirement is a part, was prepared for the purpose of determining the expenditure of the sales tax approved by the voters, which, in the current instance, is the Measure J sales tax. Since the collection of the Measure J sales tax does not commence until April 1, 2009, it follows that the new TEP does not become effective until that date; however, the Measure J GMP does set forth ULL milestone dates as procedures to encourage compliance with the GMP by the April 1, 2009 commencement date. Although Ordinance 04-02, amending the Authority's Ordinance 88-01, states that it becomes operative on April 1, 2005 pursuant to Section 16 of the Ordinance, that merely reflects that the amendments to Ordinance 88- 01 become operative as of that date, not that collection of the new sales tax commences on that date. It was clearly not the intention of the drafters or the voters that collection of the Measure C sales tax; which by its terns does not expire until 2009, and the collection of the Measure J sales tax should overlap. ULL F1na1.D0C Memorandum March K .2005 Page 6 DISCUSSION L Establishment of a VA GL1L as a basis for AIeasui-e J GMP compliance by non-app'-oving loca1jurisdictions. a. The Principles. The Principles require the county and the cities to engage in a process leading to the adoption of a mutually agreed upon ULL. In order for the MAC-ULL to be effective for GMP compliance purposes, the proposed MAC-ULL must be approved by four members of the Board of Supervisors and three fourths of the cities representing three fourths of the incorporated population of the county'. Upon obtaining such approval and the certification of an EIR, the proposed MAC-ULL must be submitted to the voters, no later than the November 2006 election. Upon approval by the voters the proposed MAC-ULL becomes the MAC-ULL and is operative for periods starting April 1, 2009.` Assuming the voters countywide have by April 1, 2009 approved a MAGULL, in order to be in compliance with the Measure J GMP, a local jurisdiction has three options.. (1) comply with the MAC-ULL 3; (11) adopt and comply with a local, voter approved ULL 4; or (111) Principle 3 states that: "On or before December 31, 2004, the County and the cities will cooperate in the development of a new mutually agreed upon ULL and criteria for future i-nodifications. 1'o be considered a,final the plan must be approved by 4 177embei-s of the .Boal-d ofSupei-visoi-s and -Y4 ofthe cities i-epi-esenting 314 of the incorpoi-ated population. [Ernphasis added.] 2 Principle 5 states: "After certification of the Master EIR, the proposal shall be submitted to the voters for ratification by November 2006. The nein- n7litual1v agreed upon LILL will be considered as the Count-yi4.1,ide Votei-Approved ULL once it has been i-Ofied by the voters." [Emphasis added.] 3 Pn*nciple 8 states: "The new Measure C (sic) Growth Management Program will include a requirement that all jurisdictions must comply with either-the 'Count.,vii.!ide,, ULL ' or the 'local jurisdiction's voter approved ULL"' [Emphasis added.] We assume for purposes of this discussion the reference in Principle 6 to the "Countywide Voter Approved ULL" and the reference in Principle 8 to the "'Countywide ULL"' are referring to the same thing. Although we note above that the Principle incorrectly references the "new Measure C II -efe-ence is understandable given that at the time the Gi-o--,N-th Management Program", the i 11COITect i i I I I Principles were adopted no letter had been assigned to the sales tax measure to be placed on the ULL Final.DOC Memorandum March 14, ?005 Page 7 `'rely upon an existing voter approved ULL."S 11'he second and third options apply only if the local jurisdiction "disagrees" with the MAC-ULL. b. The Opt Out Option; 11.1eaning of'`Disagrees. " Principle 6 raises several questions: (i) what constitutes disagreement (i.e., does the failure of the local agency's governing body to approve the MAC-ULL constitute "disagreement" or must additional steps be taken); (ii) assuming a local jurisdiction is deemed to have disagreed with the MAC-ULL, are the methods of compliance in Principle 6 the only options available to it (i.e., are the locally voter approved ULL or reliance on an existing voter approved ULL the only options available?); (111) if the governing body of the local jurisdiction approves the MAC-ULL, and the voters of the local jurisdiction reject the measure, is the local jurisdiction in "disagreement" with the ULL? Regarding the meaning of the tern "disagrees," we think that, in the context of the Principles, it should not be limited to disapproval by the local jurisdiction's governing body. In this regard, we note that Principle 8 states that "all jurisdictions" may comply with the Measure J GMP by either compliance with the MAC-ULL or with a local voter approved ULL. The reference to "all" implies that any jurisdiction, whether its governing body has approved the MAC- ULL or not, has the option to elect to comply by either method. Had the drafters intended to limit the method for compliance for a local jurisdiction whose governing body or voters had rejected the MAC-U LL to the local voter approved ULL option only, the drafters could have said so explicitly. ballot. Although the supporters of the measure attempted to obtain the sarne letter for the new measure, applicable California Elections Code provisions prevented this from occurring. 4 Principle 8, see fn. 3 supra. Additionally, Principle 6 provides that "If a Town or City disagrees with the mutually agreed upon ULL, it may, as an alter-natii)e, dei)elop and submit to its looters an `alternative ULL ', or rely upon an existing voter approved ULL." [Emphasis added.] s Principle 6; see fn. 4 above. As discussed in the text of this mernorandurn, there is an anomaly in the Principles and the GMP insofar as the compliance provisions in Principle 8 and in the GMP ULL compliance provision itself reference compliance either through a MAC-ULL or locally approved ULL only. For the reasons discussed more fully in the text, however, vve think that the intent here was clearly to permit an opting out jurisdiction to rely on an existing voter approved ULL as well. ULL Final-DOC Memorandum March 14, 2005 Page 8 Since they have not, we conclude that broader -authorization was intended. Accordingly, the mere failure to obtain approti'al of the MAC-ULL from the governing body of the local jurisdiction (or approval by its voters) should not prevent a local Jurisdiction from complying with the Measure J GMP requirement by adhering to the MAC-ULL. Assuming, arguendo, that failure to approve constitutes disagreement or that a local k jurisdiction takes additional affirmative steps to "disagree,15 we understand Principle 6's compliance options to be in addition to the option of MAC-ULL compliance and not in lieu thereof. This conclusion is based primarily on the express language of Principle 6 and its drafters' use of the words "may" and "alternative" in Principle 6 ("[local jurisdiction that disagrees] maY, as an alternative...."). Without further evidence of the legislative intent of the drafters, the use of these terrns Implies an intent that the stated language is pen-nissive or supplemental and not mandator-y.6 As such we conclude that the alternative options stated in Principle 6 are in addition 6 One of the general provisions applicable to all sections of the California Public Utilities Code (the Code pursuant to which the implementing statute is found) stipulates that "'shall' is mandatory and 'i-nay' is pen-nissive." Cal. Pub. Util. Code § 15. Although not the sole deten-ninant, the fon-n of the verb used ("shall," "may," and "*must") remains the single most important textual consideration. 3 Sutherland, Statutory Construction (6th Ed. rev. 2000) § 57:2, pp.13)-14. Negative and prohibitive terms may also be a strong indication that a statute should be held to be mandatory. Id._, § 57:9 at p. 36. However, even the use of"may" can result in an obligatory statute where other factors demand review. I A Sutherland, Statutory Construction (6th Ed. rev. 2000) § 25:4, pp. 610-612. As Chief Justice Gibson explained in Pulcifer v. County of Alameda, 29 Cal. 2d 258) 262 (1946), "[1]In order to determine whether a particular statutory provision is mandatory or directory, the court., as in all cases of statutory construction and interpretation, must ascertain the legislative intent. In the absence of express language, the intent must be gathered from the terms of the statute construed as a whole, frorn the nature and character of the act to be done, and from the consequences which would follow the doing or failure to do the particular act at the required time. [Citation.] When the object is to subserve some public purpose, the provision may be held directory or mandatory as will best accomplish that purpose and the courts will look to sec whether the provision is the essence of the thing to be accornpl 1 shed....1' The essence or purpose of the Measure J GMP is clear: to focus on growth management to assist the Authority and each local jurisdiction in meeting its transportation needs. Here, the express language of Principle 6 uses "may" and ``alternatively" without any prohibitive or negative language. This strongly suggests an intent that the means of compliance set forth in Principle 6 are ULL Final.DOC Memorandum March 14, 2005 Page 9 to any other methods of compliance set forth in the GMP including compliance with the MAC- ULL. Finally, an issue as to whether local votes-disapproval of the MAC-ULL constitutes "disagreement" is presented. To the extent that context is relevant, we note that Principle 6 immediately follows the requirement for voter approval of the MAC-ULL ("'[t]he new mutually agreed upon ULL will be considered as the Countywide Voter Approved ULL once it is ratified by the voters."). The implication may be that the drafters intended that local voter disapproval could constitute disagreement. Assuming this to be the case, we conclude that, in any event, in accordance with the discussion in the preceding paragraph, the option to comply Frith the MAC- ULL is still available. We believe the gravamen of the GMP and the Principles is that any jurisdiction, other than a jurisdiction that has "opted out" by either enacting its own locally approved ULL or by relying.on an existing voter approved ULL, may comply with the MAC-ULL for purposes of Measure J GMP compliance, whether or not its voters have or its governing body have in fact - approved the MAC-ULL. fl. Local Jui-kdictioiz Arnie-ratimis outside a MAC-ULL. Assuming the voters have approved a MAC-ULL, the Principles require that any attempted annexation by a local jurisdiction outside the MAC-ULL without a locally approved permissive, and are meant to supplement those compliance procedures found elsewhere in the Principles. By complying with a MAC-ULL, the objective of the GMP is inet eN,en if the local jurisdiction ``disagrees" with it. ULL FInal.DOC Memorandum March 14, 2005 Page 10 ULL in place I'Or the local jurisdiction would result in noncompliance with the Measure J GMP. This limitation on annexations raises several issues. First it should be noted that the mere act of applying to the Local Agency Fon-nation Commission of an application for an annexation of unincorporated lands located outside the MAC-ULL without a pre-existing local voter approved ULL applicable to such lands would trigger noncompliance with the Measure J GMP. Approval of the annexation request is not a condition for non-compliance. Second, in order to seek annexation of property outside the MAC-ULL and remain in compliance, a local jurisdiction would have to either adopt the MAC-ULL for such lands or have inplace its own local voter approved ULL which would apply to the lands to be annexed.8 Third, while the Principles are not specific, we assume that, in the absence of a MAC-ULL, an attempted annexation by a local jurisdiction with a locally approved ULL within the boundaries of such locally approved ULL would not result in non-cornpliance with the Measure J GMP.9 Reliance on iion-,,,11,4 CULL Couqymyide Votes-Approved ULL as Basisfir Measure J GjVP Compliance. As noted above, Principle 6 pen-nits (or may require) a local jurisdiction that "disagrees" with a MAC-ULL to either (1) develop and submit to its voters an alternate ULL; or (11) "rely upon an existing voter approved ULL" in order to comply with the Measure J GMP. 7 Principle 8 states in relevant part: "In the absence of a local voter approved ULL, submittal of all annexation request to LAFCO outside the countywide voter approved ULL will constitute non- compliance with the Measure C (sic) Growth Management Plan." While not stated in the Principles, presumably an annexation request by with local Jurisdiction itli a locally approved ULL would have to be to annex property within the locally approved-ULL. Otherwise the purpose for the requirement for a locally approved ULL seen-is absent. ULL Final.DOC Memorandum March 14, 2005 Page 11 Principle 7 states that if there is no MAC-ULL, only a local jurisdiction "with a voter approved ULL" would be in compliance with the Measure J GMP.10 Principle 8 and the ULL condition in the GMP" provide that, in order to be in compliance with the Measure J GMP, a Iocal jurisdiction must either comply with a MAC-ULL or with a local jurisdiction voter approved ULL. The Principles are ambiguous regarding whether a local jurisdiction's voter approved ULL can be either a locally adopted ULL or a countywide ULL that has been approved in the local jurisdiction, and whether a local jurisdiction opting not to comply with the MAC-ULL can rely on an existing ULL or must adopt a new voter approved ULL. Principle 6 makes reasonably clear-the conclusion that in the context of an approved MAC-ULL, an opting out local jurisdiction has at least the options to adopt a new ULL (potentially local, subregional or countywide) or to rely on an existing ULL (potentially local, subregional or countywide). These specific options are not carried over to Principles 7 and 8 which merely authorize compliance with a "voter approved ULL" as an option to MAC-ULL compliance. To the extent that an "alternative ULL" and an "existing voter approved ULL" as referenced in Principle 6 and a "local jurisdiction's voter approved ULL" are the same thing, any conflicts among Principles 6, 7 and 8 are resolved. Assuming they mean the same thing, it remains unclear whether they authorize compliance through both a locally approved local ULL and a locally 9 Since compliance with a local jurisdiction's voter approved ULL is an alternate mode for Measure J GMP compliance, it seerns self evident that an attempted annexation within the locally a proved ULL would not be in violation of Measure J GMP compliance requirements. Principle 7 states: If no Countywide mutually agreed upon ULL is established by March 31, 2009, only local,jitrisdictions i4.,ith a voter approved ULL til°ill be eligible to receive the 181,110 retorn to source,f rids or the S%) TLC,f Inds. " [Emphasis added.] " See fns 3 and 7 regarding Principle 8 requirements. The GMP corripliance provision itself states that "[e]ach jurisdiction must continuously comply with either a new `Countywide mutually agreed upon voter approved ULL' or the `local jurisdiction's voter approved ULL"' as a condition to receipt of return to source and TLC funds. GMP, Component 5, at page 25 of Measure J TEP (see p. 18 below.) ULL Fina1.DOC Memorandurn March 14, 2005 Page 12 approved subregional or countywide ULL. Alternatively, a broad reading of the Principles suggests that all of these options should be available to the local jurisdiction so long as such ULL is approved by the voters of the applicable local jurisdiction. As there are no express limitations within the Measure J GMP it is reasonable to interpret the Principles to allow such local voter approved ULL to be adopted in conjunction with other cities as part of a subregional ULL or other cities and the county as part of a countywide ULL. The key requirement is that the ULL must be approved by the voters of that local Jurisdiction. In any event, in the absence of a MAC-ULL, we believe it reasonably clear that some form of local voter approval would be necessary, either a local ULL or a subregional or countywide ULL applicable to such local jurisdiction.'` Accordingly if the voters of a local jurisdiction have approved a ULL specifically for such local jurisdiction, a subregional ULL or a countywide ULL affecting such local Jurisdiction, we conclude that compliance may be effected by adherence to any such "locally voter approved ULL." I V. Compliance Thi-ougli a Subi-egional ULL Noce.s,s Could sore local Jurisdictions, through a subregional compact to be determined later, develop and implement their own ULL with voter approval? Assuming that they could, would compliance with that subregional ULL meet GMP requirements`? 1` The requirement for local voter approval of a ULL as an alternative to a MAC-ULL appears to us to be reasonably clear. The GMP ULL requirement references a "local Jurisdiction's voter approved ULL." Principle 6 addresses the requirement for a local Jurisdiction to '"develop and submit to its voters" an alternate ULL: Principle 7 states the requirement as being applicable to "local jurisdictions with a voter approved ULL"; and Principle 8 points to" the "local jurisdiction's voter approved ULL'." In reference to the prohibition against seeking annexation outside a MAC- ULL Principle 8 specifies a "local voter approved ULL". a specific and unambiguous requirement for local voter approval. The only reference that is arguably ambiguous is the alternative compliance mechanism in Principle 6 that would allow an opting out local jurisdiction to rely on "an existing voter approved ULL...." which arguably implies a broader authorization (e.b., countywide voter approval of a countywide ULL, even if not locally voter approved.) In context however, we think the implication of the GMP requirement and the Principles is that local voter approval would be required. ULL FinaLDOC Mernorandurn March 14, 2005 Page 13 As noted in the previous section, Measure J GMP compliance can be achieved in two ways, either through compliance with a MAC-ULL or compliance with a local jurisdiction's voter approved ULL. In reference to the second option, the previous discussion notes that the Principles suggest that either a countywide or local jurisdiction specific voter approved ULL should meet Measure J GMP compliance requirements. Assuming a subregional ULL affecting a local jurisdiction was to be established and approved by the voters of such local jurisdiction, compliance with that subregional ULL by such local jurisdiction should meet the Measure J GMP compliance requirement. V. Measure J GMP Compliance in Respect to a Subregronal ULL Particlpallt Where Local Jurkd ctlon N Voters Have not Approved Subregioltal LTL Since we have deten-nined that Measure J GMP compliance (in the absence of a MAC-ULL) turns on approval of a ULL by the voters in a local jurisdiction, we conclude that participation in the subregional ULL without local jurisdiction voter approval of the subregional ULL would not meet Measure J GMP compliance requirements for the non-approving local jurisdiction. VI. GMP Compliwice hi Respect to Subregional ULL Non-Participalrts In the absence of a MAC-ULL, a local jurisdiction's voters would have to have approved a ULL to comply with the Measure J GMP. As the question is presented, no local jurisdiction specific voter approved ULL would be in place since the local jurisdiction is a non- participant in the subregional ULL. Under- the circumstances, a non-participating local iur'sd*ct'on without a local jurisdiction specific voter approved ULL or a countywide locally voter approved ULL would be out of compliance with the GMP. VII. Implenrewation Date for Measure J Ti alz.sportatlon Expenditure Plan. Initially we note that the Measure J TEP does not state a specific date in which the expenditures shall begin although several provisions make clear- that funding or funding levels for IJLL Fina1.UOC Memorandum March 14, 2005 Page 14 new projects and prograrns do not becomee cffectj-vc until )009.13 Although the Principles contain milestones that precede the commencement of collection of the Measure J sales tax, we conclude that the Measure J TEP and GMP requirements including but not limited to the compliance with the MAC-ULL or a local voter approved ULL, are operative only from the date of commencement of the collection of the Measure J sales tax, and that any earlier dates included in the Principles are procedural to ensure compliance by the April 1, 2009 deadline. Directions which are not directed at the essence of the issue and concern mere procedures shall not usually be deerned mandatory. Edwards v. Steele, 25 Cal. 3d 406 (1969). Whether time provisions in a statute are mandatory or merely directory partially depends upon the purpose of the statute. Board of Education of the Sacramento Cit v Unified School District v. Sacramento Co. Board of Education, 85 Cal. App. 01 1321 (2001). It is readily apparent from the Principles that the April 1, 2009 deadline for a local jurisdiction to comply with the Principles in order to receive the 18% return to source funds or the 50110 TLC funds is directed at the issue; by contrast, the milestone dates relating to the development process are directory procedures established to ensure compliance with such deadline.'` As noted in the Short Answer, the Measure J Sales Tax Ordinance has an April 1, 2005 operative date.'5 The reason the Ordinance so provides is that the Authority's Implementing 13 For instance, fn. I to the Table of Expenditure Plan Allocations.states that "fflunding for both capital improvernents and costs incurred to accelerate cleliv,ei-v into the earIv Years Qf the program (,.,-'1009-10 through 2015-16.)" [Emphasis added.] Similarly, the Transportation for Seniors & People with Disabilities prograrn category provides that "[p]aratransit funding with be increased frorn the current 2.97% to 3.5% of annual sales tax revenues.for the first year of the nciv prograin, FY 2009-10. [Ernphasis added.] 14 For example, Principle 3 states that "On or before December31, 2004, the County and the cities will cooperate in the development of a new agreed upon ULL and criteria for future rnodl fications." 15 Section 16 of Contra Costa Transportation Authority Ordinance 04-02 provides: SECTION 16. EFFECTIVE AND OPERATIVE DATES. If at least two-thirds majority of the electors voting on this measure at the election scheduled for November 2, 2004 vote to approve this Ordinance, then it will become effective the ULL Flnal.DOC Mernorandum March 14, 2005 Page 15 statute requires that the sales tax ordinance become operative on such date.'6 It merely requires that the ordinance becomes operative on that date, not that collection of the sales tax or funding of the Measure J TEP must begin on such date. In fact, the Ordinance expressly states that the collection of the sales tax imposed under Measure J does not commence until April 1, 2009." In accordance with the Authority's implernenting statute, the purpose of the TEP is to state the manner in which the sales tax to be imposed is to be expended.18 Accordingly, we think it self evident that the Measure J TEP can only be operative once there are Measure J sales tax revenues to be expended. Since the Authority's implementing statute and Ordinance 04-02- make 4-02make amply clear that collection of the Measure J sales tax does not commence until April 1, 200.9, next day on November 3, 2004. If so approved, this Ordinance becomes operath,e on April 1, 2005 pursuant to Public L'tllltles Code Section 180204(e (sic). [Emphasis added.] 1 6 Cal. Public Utilities Code Section 180204(a) (misidentified as subdivision (e) in the Measure J Sales Tax Ordinance) provides: "(a) Any transactions and use tax ordinance adopted pursuant to this chapter shall be operative on the,fust da_y of'thc fust calendar quarter coininencing snore than 110 days after adoption of the ordinance." [Emphasis added.] 17 Section 3 of Ordinance 04-02 provides in relevant part: "[I]n addition to any other taxes authorized by law, there is hereby continued in effect . . . a retail transactions and use tax at the rate of one-half of one percent (1 12%).fol"a period not to exceed tv4,enty' ve_veal s co177n7encing April 1, 2009, in addition to anv existing or future allthol-i ed state or local tra1ZSQCtl011S and Ilse tax. This tai continues in C'ffect the transportation sales tax currenth.,set to e,p11-e on March 31, '1009. YY [Emphasis added.] Additionally, the Prearnble makes clear that the Measure J sales tax continues the current Measure C sales tax for 25 years from the date of expiration of the current sales tax: Paragraph A of the Preamble provides in relevant part: "The [Measure C] ordinance thereafter became operative on April 1 1989, and the irnposition of the tax is currently set to expire on March 31, 2009. " Paragraph C of the Preamble then provides: "[t]he Authority now wishes to amend Ordinance No. 88-01, as amended , bh continuing the existing sales tax in of feet.fo^a 25_,-ear period ." [Emphasis added.] 18 Cal. Public Utilities Code Section 180206(a) provides in relevant part: "A county transportation expenditure plan shall be prepared,for the epicnditure ofthe revenues expected to be derived.f-om the tax imposed pltrsuant to this chapter." [Ernphasis added.] ULL Final.DOC Memorandum March 14, 2005 Page 16 \ve conclude that the operative date for the Measure J TEP must be coincident with the commencement of the collection of the Measure J sales tax.'9 19 Ordinance 04-02 contains potentially conflicting indicators. First, paragraph C of the Preamble provides in relevant part that "[s]ubject to voter approval, the new TEP ivill become eff�ctive on April 1, 2005." [Emphasis added.] Additionally, paragraph 11 of the Ordinance provides as follows: 11. EFFECT OF THE NEW TEP. The new TEP is attached hereto as Exhibit A and ai�ginents the existing TEP adopted in 1988. The new TEP, as adopted by the Authority., is incorporated herein by this reference as though fully set forth herein, and as it may be amended from time to time pursuant to applicable law. [Emphasis added.] Finally, Paragraph 111, Section 28 E of the Ordinance provides: E. Expenditure Plan. Means the expenditure plan required by Section 1802106 of the Public Utilities Code to be adopted prior to the call of the election on this Ordinance. The expenditure plan includes allocations Qfi-evenuesfior each authori,edpui-pose. As of'April 1, 2004 (sic), the 2004 Transportation E-Ypenditure Plan auivnents the expenditure plan adopted in 1988. Any reference to "Expenditure Plan" in this Ordinance, unless the context otherwise requires, refers to the 1988 and .1-004 plans. [Emphasis added.] We note that the drafters use the term "augments" rather than amends throughout. The implication of the foregoing, while not entirely clear, is that the drafters, and presumably the voters, intended the new TEP to serve as a planning document for the future expenditure of the Measure J sales tax proceeds. Since the statute makes clear that the new TEP applies to the expenditure of the new sales tax, this conclusion should resolve any potential inconsistency. While the "effective" language in Recital C is potentially troubling., the preamble to a statute is not part of the law. I A Sutherland, Statutory Construction (6th Ed. rev. 2000) § 20:3, 123. The function of the preamble is to supply reasons and explanations and not to confer power or determine rights. Id. ULL Final.DOC Memorandum March 14, 2005 Page 17 ATTACHNIENT A THE GROWTH MANAGEMENT PROGRAM Goals and Objectives The overall goal of the Growth Management Program is to preserve and enhance the quality of life and promote a healthy, strong economy to benefit the people and areas of Contra Costa through a cooperative, multi-jurisdictional process for managing growth, while maintaining local authority over land use decisions. The objectives of the Growth Management Program are to: • Assure that new residential, business and commercial growth pays for the facilities required to meet the demands resulting from that growth. • Require cooperative transportation and land use planning among Contra Costa County, cities, towns, and transportation agencies. • Support land use patterns within Contra Costa that make more efficient use of the transportation system, consistent with the General Plans of local jurisdictions. • Support infill and redevelopment in existing urban and brownfield areas. Components To receive its share of Local Transportation Maintenance and Improvement funds and to be eligible for Contra Costa Transportation for Livable Communities funds, each jurisdiction must: 1. ADOPT A GROWTH MANAGEMENT ELEMENT Each jurisdiction must adopt, or maintain in place, a Growth Management Element as part of its General Plan that outlines the jurisdiction's goals and policies for managing growth and requirements for achieving those goals. The Growth Management Element must show how the jurisdiction will corr»ly with sections 2-7 below. The Authority will refine its model Growth Management Element and administrative procedures in consultation with the Regional Transportation Planning Committees to reflect the revised Growth Management Program. Each jurisdiction is encouraged to incorporate other standards and procedures into its Growth Management Element to support the objectives and required components of this Growth Management Program. 2. ADOPT A DEVELOPMENT MITIGATION PROGRAM Each jurisdiction must adopt, or maintain in place, a development mitigation program to ensure that new growth is paying its share of the costs associated with that growth. This program shall consist of both a local program to mitigate impacts on local streets and other facilities and a regional program to fund regional and subregional transportation projects, consistent with the Countywide Comprehensive Transportation Plan. ULL Final.DOC Memorandum March 14, 2005 Page 18 The jurisdiction's local development mitigation program shall ensure that revenue provided from this measure shall not be used to replace private developer funding that has or would have been committed to any project. The regional development mitigation program shall establish fees, exactions, assessments or other mitigation measures to fund regional or subregional transportation improvements needed i The Authority will, to the extent possible, attempt to harmonize the Growth Management and the State- mandated Congestion Management Programs. To the extent they conflict, Congestion Management Program activities shall take precedence over Growth Management Program activities. to mitigate the impacts of planned or forecast development. Regional mitigation programs may adjust such fees, exactions, assessments or other mitigation measures when developments are within walking distance of frequent transit service or are part of a mixed-use development of sufficient density anal with necessary facilities to support greater levels of walking and bicycling. Each Regional Transportation Planning Committee shall develop the regional development mitigation program for its region, taking account of planned and forecast growth and the Multimodal Transportation Service Objectives and actions to achieve them established in the Action Plans for Routes of Regional Significance. Regional Transportation Planning Committees may use existing regional mitigation programs, if consistent with this section, to comply with the Growth Management Program. 3 . ADDRESS HOUSING OPTIONS Each jurisdiction shall demonstrate reasonable progress in providing housing opportunities for all income levels as part of a report on the implementation of the actions outlined in its adopted Housing Element. The report will demonstrate progress by- (1) Comparing the number of housing units approved, constructed or occupied within the jurisdiction over the preceding five years with the number of units needed on average each year to meet the housing objectives established in the jurisdiction's Housing Element; or (2) Illustrating how the jurisdiction has adequately planned to meet the existing and projected housing needs through the adoption of land use plans and regulatory systems which provide opportunities for, and do not unduly constrain, housing development; or (3) Illustrating how a jurisdiction's General Plan and zoning regulations facilitate the improvement and development of sufficient housing to meet those objectives. In addition, each jurisdiction shall consider the impacts that its land use and development policies have on the local, regional and countywide transportation system, including the level of transportation capacity that can reasonably be provided, and shall incorporate policies and standards into its development approval process that support transit, bicycle and pedestrian access in new developments. 4 . PARTICIPATE IN AN ONGOING COOPERATIVE , MULTI — JURISDICTIONAL PLANNING PROCESS Each jurisdiction shall participate in an ongoing process with other jurisdictions and agencies, the Regional Transportation Planning Committees and the Authority to create a balanced, safe and ULL Fliial.DOC Memorandum March 14, 2005 Page 19 efficient transportation system and to manage the impacts of growth. Jurisdictions shall work with the Regional Transportation Planning Committees to: A. Identify Routes of Regional Significance, and establish Multimodal Transportation Service Objectives for those routes and actions for achieving those objectives. B. Apply the Authority's travel demand model and technical procedures to the analysis of General Plan Amendments (GPAs) and developments exceeding specified thresholds for their effect on the regional transportation system, including on Action Plan objectives. C. Create the development mitigation programs outlined in section 2 above. D. Help develop other plans, programs and studies to address other transportation and growth management issues. In consultation with the Regional Transportation Planning Committees, each jurisdiction will use the travel demand model to evaluate changes to local General Plans and the impacts of major development projects for their effects on the local and regional transportation system and the ability to achieve the Multimodal Transportation Service Objectives established in the Action Plans. Jurisdictions shall also participate in the Authority's ongoing countywide comprehensive transportation planning process. As part of this process, the Authority shall support countywide and subregional planning efforts, including the Action Plans for Routes of Regional Significance, and shall maintain a travel demand model. Jurisdictions shall help maintain the Authority's travel demand modeling system by providing information on proposed improvements to the transportation system and planned and approved development within the jurisdiction. 5. ADOPT AN URBAN LIM IT LINE ( ULL ) Each jurisdiction must continuously comply with either a new "Countywide mutually agreed upon voter approved ULL" or the "local jurisdiction's voter approved ULL" before that jurisdiction would be eligible to receive the 18% return to source funds or the 5% TLC funds. In the absence of a new local voter approved ULL, submittal of an annexation request to LAFCO outside the countywide voter approved ULL will constitute noncompliance with the Measure C Growth Management Plan. The new ULL will be developed and maintained consistent with the "Principles of Agreement" in Attachment A, incorporated herein by reference. 6. DEVELOP A FIVE - YEAR CAPITAL IMPROVEMENT PROGRAM Each jurisdiction shall prepare and maintain a capital improvement program that outlines the capital projects needed to implement the goals and policies of the jurisdiction's General Plan for at least the following five-year period. The Capital Improvement Program shall Include approved projects and an analysis of the costs of the proposed projects as well as a financial plan for providing the improvements. The jurisdiction shall forward the transportation component of its capital improvement program to the Authority for incorporation into the Authority's database of transportation projects. 7. ADOPT ATRANSPORTATION SYSTEMS MANAGEMENT ( TSM ) ORDINANCE OR RESOLUTION To promote carpools, vanpools and park and ride lots, each jurisdiction shall adopt a local ordinance or resolution that conforms to the model Transportation Systems Management Ordinance that the Transportation Authority has drafted and adopted. Upon approval of the ULL Flnal.DOC • Memorandurn Much 14, 2005 Page 1210 Authority, cities with a small employment base may adopt alternative mitigation measures in lieu of a TSM ordinance or resolution. Allocation of Funds Portions of the monies received from the retail transaction and use tax will be returned to the local jurisdictions (the cities and the county) for use on local, subregional and/or regional transportation improvements and maintenance projects. Receipt of all such funds requires compliance with the Growth Management Program described below. The funds are to be distributed on a formula based on population and road miles. Each jurisdiction shall demonstrate its compliance with all of the components of the Growth Management Program in a completed compliance checklist. The jurisdiction shall submit, and the Authority shall review and make findings regarding the jurisdiction's compliance with the requirements of the Growth Management Program, consistent with the Authority's adopted policies and procedures. If the Authority determines that the jurisdiction complies with the requirements of the Growth Management Program, it shall allocate to the jurisdiction its share of local street maintenance and improvement funding. Jurisdictions may use funds allocated under this provision to comply with these administrative requirements. If the Authority determines that the jurisdiction does not comply with the requirements of the Growth Management Program, the Authority shall withhold those funds and also make a finding that the jurisdiction shall not be eligible to receive Contra Costa Transportation for Livable Communities until the Authority determines the jurisdiction has achieved compliance. The Authority's findings of noncompliance may set deadlines and conditions for achieving compliance. Withholding of funds, reinstatement of compliance, reallocation of funds and treatment of unallocated funds shall be as established in adopted Authority's policies and procedures. ULL Fina].DOC AEtaCI1111Cl11 D Memorandum March 14, 2005 Page 21 ATTACHMENT A PRINCIPLES OF AGREEMENT FOR ESTABLISHING THE URBAN LIMIT LINE 1. The Board of Supervisors shall have, with the concurrence of each affected city, adjusted the existing County ULL on or before September 30, 2004, or as expeditiously as possible given the requirements of CEQA, to make the existing County ULL coterminous with city boundaries where it previously intruded inside those incorporated boundaries. 2. The process to develop the ULL shall have begun by July 1, 2004 with meetings in each sub region between one elected representative of each city and the county. The subregional meeting(s) will be followed by meetings between all of the cities and the county, each being represented by one elected representative. The discussion will include both the suggested ULL as well as criteria for establishing the line and future modifications to the ULL. 3. On or before December 31, 2004, the County and the cities will cooperate in the development of a new mutually agreed upon ULL and criteria for future modifications. To be considered a final proposal, the plan must be approved by 4 members of the Board of Supervisors and 3/4 of the cities representing Y4 of the incorporated population. 4. The County will be the lead agency in preparing a Master EIR on the proposed Countywide "mutually agreed upon ULL". 5. After certification of the Master EIR, the proposal shall be submitted to the voters for ratification by November 2006. The new mutually agreed upon ULL will be considered as the Countywide Voter Approved ULL once it is ratified by the voters. 6. If a Town or City disagrees with the mutually agreed upon ULL, it may, as an alternative, develop and submit to its voters an "alternative ULL", or rely upon an existing voter approved ULL. 7. If no Countywide mutually agreed upon ULL is established by March 31, 2009, only local jurisdictions with a voter approved ULL will be eligible to receive the 18% return to source funds or the 5% TLC funds. 8. The new Measure C Growth Management Program will include a requirement that all jurisdictions must comply with either the "Countywide ULL" or the "local jurisdiction's voter approved ULL" before that jurisdiction would be eligible to receive the 18% return to source funds or the 5% CC-TLC funds. In the absence of a local voter approved ULL, submittal of an annexation request to LAFCO outside the countywide voter approved ULL will constitute non- compliance with the Measure C Growth Management Plan. 9. The new ULL, unless amended, will be in place through the end of the safes tax extension (March 31, 2034). 10. The Countywide voter approved ULL Measure will include provisions for periodic review (5 years) as well as provisions for minor (less than 30 acres) nonconsecutive adjustments. ULL FinaI.DOC