In order for two separate development companies to proceed with developments that will exceed a density of more than 26 units per acre, they will need to underground the overhead power lines that stretch across the property where the building is to take place, the Chino City Council ruled on September 1.
Both Warmington Homes and BCT Development Acquisition sought to convince city staff and the city council that in exchange for reserving ten homes of the 100 the former intends to build on 3.76 acres and 21 of the 210 apartment units the latter is going to construct on eight acres for low income homebuyers or renters that they should be excused from the requirement contained in the city’ code that they take the power lines span across those properties and run them the length of each development through underground vaults.
Traditionally in California, land use decisions were province of local governments rather than that of the state legislature or bureaucrats in the state capital. In this way, city councils or planning commissions, in consultation with city planning staffs determined the character of the development that was to take place in their individual cities and how intensely the properties in their communities were to be developed. Hanging in the balance was the question of density, or how many dwelling units were allowed to be constructed per acre, the height of buildings, the ratio of space occupied by buildings to the space occupied by unpaved ground with grass or plants growing on it, the mix of residential, commercial, industrial development and open space to be permitted in a city, along with whether apartments and condominiums should be allowed to displace single family homes. These decisions historically were left to the people who lived in the places that were to be impacted by the decisions.
Developers, as a consequence of wanting to make a profit, wanted to build as intensely as possible. By building on ever smaller lots, they could put twice or three times or four times or six times or eight times as many houses on an acre as was the case in the 1940s or 1950s or 1960s, so they could sell more houses and make more money. Some elected officials – mayors and city council members – saw no problem with that. They supported the idea of developers being able to maximize their profits. Other elected officials, however, looked at the consequences of stuffing more and more people into houses with ever smaller yards, packing them in like sardines into a can, and saw the social harm that fostered, the rapid deterioration of the property that had been developed, the way in which those who lived in apartments or tenements took less pride in renting or in ownership than did those who lived in, if not an estate, then a semi-estate in which they could enjoy some personal space, not be cramped and create an aesthetic about themselves that was good for them psychologically, socially and financially in terms of owning something of value.
California’s perceived housing shortage has prompted the California Legislature to impose increasingly bureaucratic prescriptive state housing mandates on local governments, with the stated goal of accelerating production across all income levels. Core frameworks such as the Housing Element and the Regional Housing Needs Allocation process require cities and counties to plan for significant increases in housing capacity. Under the Housing Element and the Regional Housing Needs Allocation, known by its acronym RHNA, Chino is mandated to clear the way for 6,978 housing units it is mandated to permit to be constructed within its city limits between 2021 and 2029. According to the California Department of Housing and Community Development, 2,113 of those 6,978 units are supposed to be affordable to those with very low income, meaning those who earn zero to 50 percent of the area median income, equated to $37,650 or less annually; 1,284 of the units are to be affordable to those of low income, meaning those who earn 51 percent to 80 percent of the area median income, or $37,651 to $60,240 annually; 1,203 units of those unites are to be affordable to those of moderate Income, meaning those earing 81 percent to 120 percent of the area median income or $61,241 to $90,360 annually; and 2,378 of the units are to be reserved for those earning an above moderate income, defined as 120 percent of the area median income or more than $90,361.
In seeking to cure what the State of California has defined as a housing crisis, the state legislature has passed laws and statutes to streamline the development approval process and reduce the ability of local governments to impose conditions on the development or exercise discretion with regard to the quality and density of the development occurring within their jurisdictions. Among those laws and statutes is California’s State Density Bonus Law, which outlines what “bonuses” local governments have to give to development companies that are undertaking housing projects that will make inroads on the defined housing shortage. Some of those bonuses entail the suspension of regulations that would otherwise apply to residential construction projects and exemptions that must be made to restrictions counties, cities or incorporated towns can impose on development projects.
Development companies have in the last several years taken to approaching cities with proposals to construct homes or apartments for very low and low income homebuyers and renters, seeking from those cities waivers on building requirements out of the belief that the cities, which are looking, or are even desperate, to meet the state mandates on permitting the construction of residential projects, will go along with waiving or suspending those requirements. Those requirements to be waived can include density requirements or other conditions of approval. If the development companies can construct those subdivisions without meeting those conditions, they can save tens of thousands, hundreds of thousands or even millions of dollars in the process, greatly upping their profits.
Regent Land Company in conjunction with Warmington Homes filed a proposal with the city to construct 100 three-story townhomes on 3.76 acres at the southwest corner of Riverside Drive and Magnolia Avenue. In making that proposal, Warmington offered to reserve 10 percent of the homes to be sold at an affordable rate. It made no commitment about the remaining 90 percent – that is 90 – of the homes. In return it asked for nine concessions from the city. Those concessions were waivers of conditions the city normally applies, and which could be legally enforced. Those waivers included intensifying the density such that each acre will accommodate 26.6 units, i.e., each unit having a footprint, meaning space for the structure and its yard, of 1,637.9 square feet or a plot of 40.5 feet by 40.5 feet. That puts roughly six-and-a-half dwelling units on the space occupied by the typical single-family homes that were built in Chino’s neighborhoods in the 1950s and 1960s. Other requested waivers included diminished setbacks from the units’ property lines, which eliminated or greatly reduced spacing between the units and the virtual elimination of outdoor living area, meaning, essentially, the homes will have no yards to speak of. Eight of the waivers were granted.
City staff, however, drew the line with regard to a waiver of Chapter 13.32 of the Chino Municipal Code, which requires that “[a]ll existing and proposed cable television, electrical, telephone and other energy or communication devices such as lines, poles, transformers and related devices shall be placed underground.”
On June 17, the Chino Planning Commission approved the applicant Warmington Residential’s proposal to construct the 100 residential units but recommended against waiving the utility undergrounding requirement. Warmington Homes appealed the ruling to the city council, which considered the appeal at its September 1 meeting. Warmington maintained that undergrounding the electrical lines would be prohibitively expensive and that the State Density Bonus Law gave it an absolute right to the waiver.
To persuade the city that it should drop the requirement that it underground the electrical lines, it called upon the law firm of Cox, Castle & Nicholson to its talking for it in a language the city could understand, i.e., threatening litigations. On June 29, 2026, Linda C. Klein, an attorney with the law firm of Cox, Castle & Nicholson, dashed off a letter to the California Department of Housing and Community Development, calling upon it to issue a notice of violation of the State Density Bonus Law to the City of Chino. That letter was a ploy to force the city to rescind its requirement that the electrical lines that currently span the property from utility poles along the property frontage be placed underground.
According to Klein “the city lacks an objective standard requiring underground utility lines and violated the housing accountability act by insisting on underground utilities.” Klein acknowledges that Municipal Code Section 13.32.030 is part of the Chino City Code but insisted that “There are exceptions to this requirement and municipal code section 13.32.050.b gives the city engineer unlimited discretion to identify which utilities ‘shall be placed underground for each development or improvement and which utility devices may be exempted.’”
Klein said the city had “no direct or quantifiable safety concerns” about the electrical lines on the property and that “None of the city’s findings are sufficient to show that the underground utility concession would have a specific, adverse impact upon public health or safety and there is no feasible way to minimize that impact other than denying the underground utility concession.”
The city council, however, chose to disregard the threat Warmington Homes was vectoring its way through Klein, the firm of Cox, Castle & Nicholson and the California Department of Housing and Community Development, and provided a resolution in taking its action to reject the waiver on September 1. That resolution states, “Undergrounding utilities is necessary to protect public health, safety, and welfare by reducing risks to life and property during emergencies such as earthquakes, fires, and severe weather events, reducing hazards associated with downed or damaged utility lines, and maintaining safe visibility and access within the public right-of-way for pedestrians, motorists, and emergency responders. Traffic collision data indicates there have been 23 traffic accidents within Chino City Limits involving a vehicle collision with a Southern California Edison power pole resulting in damage to the pole. The undergrounding requirement constitutes a fundamental public safety standard rather than a discretionary or primarily aesthetic requirement. Based upon the legislative findings contained in Chapter 13.32, the requested concession or waiver would potentially create specific adverse impacts on public health and safety that cannot be mitigated without requiring compliance with the undergrounding requirement.”
During the same June 17 Chino Planning Commission meeting at which Warmington was given go-ahead for its 100-unit project subject to the eight waivers and some conditions, including the undergrounding of the electrical lines, slightly to the east and across the street, at the northwest corner of Riverside Drive and Mountain Avenue, a proposal by the BCT Development Acquisition Company to construct a 210-unit residential rental community
consisting of 25 two- and three-story residential buildings and a recreation building on 7.9 adjusted gross acres of land at a density of 26.6 dwelling units per acre had been considered. BCT used a similar ploy as Warmington, having agreed to reserve ten percent of the 210 units – i.e., 21 units for sale or rent to low or very low-income buyers or renters. BCT had asked for seven waivers, including reductions in the setbacks and the virtual elimination of yards for the structures on the minuscule lots, along with the same elimination of the requirement that it underground the existing electrical utilities on the land.
The planning commission had split evenly, 3-to-3 on the project, meaning it remained in limbo, not having been turned down, but not approved either.
BCT, asserting it was being nickled-and-dimed to death by the city’s requirements to provide infrastructure to offset the impacts of the project or contribute toward defraying the cost of that infrastructure such as utility undergrounding and traffic improvements to the Riverside Avenue/Mountain Avenue intersection which it had not anticipated, appealed that decision to the city council, including with it the original application for a waiver of the utility undergrounding requirement. While the city council did approve the project, it insisted the BCT carry out the undegrounding of the electrical line as well as the relocation of an existing utility, consisting of a high-pressure gas line at the intersection of Mountain Avenue and Riverside Drive.
-Mark Gutglueck