CP&DR News Briefs May 5, 2020: SB 35 Court Case; Federal Water Regulations; Air Pollution Rankings; and More

Robin Glover on
May 3, 2020
Court Rules in Favor of Los Altos Development, Bolsters SB 35
In what may well be a harbinger of how courts interpret Senate Bill 35, a Santa Clara Superior Court found Los Altos violated the law when the city denied a 15-unit development proposal. The developer had sought expedited approval under SB 35. Besides the ruling itself, the decision was striking in that the lead judge in the case found that Los Altos acted in bad faith under the Housing Accountability Act by blocking the project without merit in a way that goes beyond making a "benign error." The city initially claimed the project did not qualify because it didn't have enough affordable housing. When that claim failed scrutiny, city officials took issue with the number and accessibility of parking spaces. The decision isn't binding precedent, but pro-housing advocates hope judges, developers and city officials - who are still figuring out how to interpret the relatively new Senate Bill 35 - will look to the Los Altos ruling for guidance on how the law can be used in conjunction with other state housing laws. The suit was brought by pro-housing group California Renters Legal Advocacy & Education Fund. (See prior CP&DR commentary on SB 35.)

Federal Government Narrows Protections on Bodies of Water
The Trump Administration has published a revised rule defining which water bodies are subject to federal jurisdiction under the “Waters of the United States” regulations. The rule eliminates protections for many ephemeral bodies of water and indicates that wetlands, an important concern of environmental lists, must touch another navigable body of water to be considered under federal jurisdiction. The Navigable Waters Protection Rule, a replacement for the Obama Administration's waters of the United States rule, was published in the Federal Register on April 21. The Southern Environmental Law Center plans to file suit against the rule, which "leaves any waterways vulnerable to pollution, fill, and destruction," said a spokesperson for the center. The revision was welcomed by the construction industry, which had complained the 2015 rule was too broad and could restrict projects. The new navigable waters rule lists four categories of waters that would be subject to federal jurisdiction: territorial seas and waters used in interstate or foreign commerce; certain tributaries; lakes and ponds; and wetlands that abut any of the other three types of waters. Wetlands must touch another navigable body of water to be considered under federal jurisdiction under the rule. In some cases, wetlands separated from waters by a constructed feature, such as a levee, might also be judged a federal responsibility. (See prior CP&DR coverage.)

California Cities Fare Poorly in National Air Pollution Ranking
Newly released nationwide rankings by the American Lung Association of cleanest U.S. cities had only one California city, Salinas, on its list of best cities for ozone levels, year round particle pollution. But even Salinas didn't make the top 25 for cleanest year-round particle pollution. California wasn't alone--the entire West Coast fared poorly. Out of hundreds of cities, the cleanest cities were clustered along the East coast and in mideast regions, becoming increasingly less dense west of Colorado. Only four western cities made the cleanest cities list--two of which are in Alaska. Meanwhile, West Coast cities dominated lists for worst ozone, and worst year-round particle pollution. Los Angles-Long Beach, Visalia, Bakersfield, Sacramento-Roseville, and San Diego-Chula Vista-Carlsbad were top five for worst in ozone pollution levels. Bakersfield, Fresno-Madera-Hanford, Visalia, Los Angeles-Long Beach, and San Jose-San Francisco-Oakland, CA were top 5 by year-round particle pollution, but fared slightly better in short-term particle pollution levels.

CP&DR Coverage: Hearings Go Online Under Loosened Brown Act 
Planning departments statewide have shifted their meetings and official hearings, including city council and planning commission meetings, online in order to comply with stay-at-home orders while planners carry on with business during the COVID crisis. While many departments had already broadcast public meetings via webcast and accepted public comment remotely, the Brown Act had required that official meetings take place in-person and be open to the public. Revised rules allow online meetings to proceed so long as the public has sufficient advance notification, requiring public agencies to "use sound discretion and reasonable efforts to adhere as closely as reasonable possible to the provisions of the Bagley-Keene Act and the Brown Act...in order to maximize transparancy and provide the public access to their meetings."

Quick Hits & Updates 
The Public Policy Institute of California estimates that San Joaquin Valley's groundwater sustainability plans are too optimistic about the availability of new supplies. Few plans focus on demand, and those that do give few details on their approach. According to PPI's independent analysis, a realistic plan to end the region's groundwater overdraft will entail fallowing at least 500,000 acres of farmland.

A consultant with California High Speed Rail is under investigation by the FBI following reports that its executives retaliated against employees for bringing forth negative information about the firm. California High-Speed Rail Authority disclosed the investigation at a meeting of its Board of Directors where it separately approved a plan to help fund the modernization of Los Angeles Union Station.

San Francisco, Inglewood, and Los Angeles are the biggest award recipients of the latest round of Transit and Intercity Rail Capital Program (TIRCP) grants, worth up to $4.9 billion after matching federal, state, and local funds. BART will get a $107 million infusion for new rail cars. Antelope Valley was awarded $6.5 million for electric buses, and Inglewood Transit will direct $95 million towards an APM system.

HCD released the State of California Draft 2020-2024 Federal Consolidated Plan for public comment, which has been updated to include placeholder information for potential CARES Act funds. Due to the impacts of the COVID-19 pandemic, HUD has allowed the Department an extension on submitting the Consolidated Plan until June 30.

The San Francisco Planning Commission voted in favor of initiating the rezoning of Balboa Reservoir, a 17.6-acre property the city has been trying to build on since 1980. Virginia-based investment firm Avalon Bay designed and submitted a plan that includes over 1,000 homes, half of which would be affordable housing, and 150 units reserved for City College of San Francisco staff.

LA Metro’s Crenshaw Line likely won't be up and running until late 2021--a year later than the expected opening date—wrote Metro CEO Phil Washington in a letter to stakeholders. Though the letter cites the project's complexity as a reason for delays, documents indicate that by Metro's own accounting, only 1 percent of construction has been completed since October 2019.

As public transit ridership plunges amid the coronavirus pandemic, two major transit projects in the San Diego region are on hold. San Diego MTS announced a hold on ElevateSD, a $24 billion rail and bus extension, and SANDAG has suspended plans to release a highly anticipated $100 billion blueprint for modernizing the region's transportation system.

Climate change has doubled the number of extreme-risk days for California wildfires, according to an analysis led by Stanford University. Temperatures rose about 1.8 degrees Fahrenheit statewide while precipitation dropped 30 percent since 1980, changes scientists say they can confidently attribute to climate change. The study noted, however, that actions to mitigate climate change can have a substantial impact down the road.

California has approved over $500 million in tax-exempt financing for a high-speed train to Las Vegas, clearing a path for investors to sell bonds for the private rail project if they succeed in securing a similar bond from Nevada. The $600 million allocation - which can be leveraged into as much as $3.2 billion in unrated tax-exempt bonds - is 15 percent of California's annual bond allotment.
San Diego's Planning Commission is hoping to harness the tiny house movement to quickly expand the city's housing stock without having to rely on taxpayer-subsidized homes. If the City Council agrees with the Planning Commission and approves the new law this spring, it wouldn't take effect in coastal areas until the Coastal Commission also gives its assent.

Judges across California have upheld Project Roomkey, an initiative that places homeless people in empty hotels and motels to protect them from unchecked spread through encampments. In a narrow ruling, a judge issued a temporary restraining order directing the City of Norwalk to comply, ruling that on balance, the interests of the county in implementing the order outweighed any harm the city could suffer.

San Diego officials are seeking to streamline approvals for new housing developments under a San Diego International Airport flight path. The new rules are designed to give developers greater certainty about what kinds of projects are allowed under a flight path by creating a special overlay zone where limits on the size of projects would account for airport rules that would typically require a City Council vote to override.

HCD released a summary of the requirements that AB 686 added to Housing Element Law that local governments and interested stakeholders can use to understand the changes. The memo provides a review of the added fair housing program requirement (which started January 1, 2019), the Assessment of Fair Housing, and the sites inventory analysis for all housing elements due on or after January 1, 2021.