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Lawmakers Address Climate, Water, Local Planning

State lawmakers have introduced an extraordinarily diverse collection of bills regarding land use planning, natural resources and infrastructure this year. While lawmakers' interest in affordable housing and redevelopment reform appears to have waned, the number of bills related to climate change or renewable energy has increased dramatically in 2009.

Legislators have proposed at least five measures that would place water bonds before voters. Other measures are aimed at enhancing the health and changing the governance of the Sacramento-San Joaquin River Delta. Bills concerned with development in fire-prone areas have returned after failing last year, as has a measure to ease use of tax increment financing for infrastructure around transit stations. There is also a bill that would raise vehicle license fees to fund at least some of the regional planning required by last year's SB 375.

Looming over everything, however, is the state's fiscal plight. Even if voters approve tax and spending measures during the May 19 special election – which appears unlikely – the state will probably face another significant budget deficit for the 2009-10 fiscal year. The fiscal picture should be clearer after Gov. Schwarzenegger provides the "May revise" toward the end of the month.

"It looks like it's going to be another year when the state budget is going to be the center of discussion," said Daniel Carrigg, legislative director for the League of California Cities. For that reason, the League is not pursing an aggressive agenda in Sacramento this year, except to block any proposal to grab local revenues.

"Now is not the time to add a bunch of new programs and require new fees," Carrigg said. "It seems like it's time to focus on the basics, which is to balance the budget and get those infrastructure dollars out there."

The California Building Industry Association (CBIA) is sponsoring a revision of the Mitigation Fee Act and a bill that would extend the expiration date of tentative subdivision maps by six years. The industry's priority, however, is an extension of a $10,000 state tax credit for buyers of new homes, said CBIA Vice President Tim Coyle. The state budget deal approved in February included authorization for $100 million worth of new homebuyer tax credits. The state put a one-year time limit on the program, but it appears buyers will burn through the $100 million in less than five months, Coyle said.

"It has produced the kind of response we were looking for. Traffic in new home subdivisions is up by incredible numbers," Coyle said.

Environmentalists, meanwhile, are backing various climate change and water bills. The Planning and Conservation League (PCL), for example, is sponsoring two bills intended to promote water conservation and recycling as complementary measures to increasing water storage, as most water bonds propose.


Hot Year For Climate Bills

The Global Warming Solutions Act of 2006 (AB 32) and last year's SB 375 – which uses greenhouse gas emissions targets to force more regional and sustainable planning – marked turning points for land use policy and process. Such major changes naturally result in follow-up legislation. In general, Republican lawmakers are carrying bills to blunt the impact of AB 32 and SB 375, while Democrats have measures that build on the earlier legislation.

Republican measures such as AB 118 (Logue), which would repeal AB 32 entirely, and SB 295 (Dutton), which would delay AB 32 implementation until the unemployment rate drops below 5.8% (about half of the March rate), are unlikely to gain much traction. On the Democratic side is SB 104 (Oropeza), which would permit the Air Resources Board to regulate any anthropogenic gas (a gas created by humans) under AB 32. Other Democratic legislation is aimed at protecting forests for their carbon sequestration properties.

It is unclear how well Democratic measures will fare. The best odds probably belong to bills by Senate President Pro Tem Darrell Steinberg (D-Sacramento), the author of SB 375. Steinberg's SB 575 currently modifies San Diego County housing element deadlines but could serve as an omnibus SB 375 cleanup measure, while his SB 722 would place parameters on greenhouse gas emissions mitigation credits.

Three other bills of more immediate concern to cities, counties and property owners address development of renewable energy facilities: AB 64, AB 45 and SB 560. Assembly Bill 64 by Assemblyman Paul Krekorian (D-Burbank) is a complex bill that, among other things, would create a Renewables Infrastructure Authority (RIA) that would identify suitable zones for renewable energy generation facilities, and then regulate their development. The measure would apparently eliminate local governments' ability to regulate wind energy facilities, the California Energy Commission's authority to regulate large solar facilities, and the Public Utilities Commission's (PUC) authority over transmission facilities.

Assembly Bill 64, according to an analysis by the Assembly Committee on Utilities and Commerce, "provides RIA with siting authority for all renewable energy generation facilities greater than 5 megawatts. Any facility proposing to locate in a designated renewable energy designation zone will fall under the RIA's programmatic environmental impact report and can use the RIA's report to comply with CEQA."

While AB 64 has received endorsement by renewable energy companies, environmentalists have lent only cautious support. Public and private utilities oppose the new regulatory arrangement, as does the PUC.

Assembly Bill 45 by Assemblyman Sam Blakeslee (R-San Luis Obispo) would authorize cities and counties to regulate small wind energy systems. Senate Bill SB 560 by Roy Ashburn (R-Bakersfield) would provide greenhouse gas emissions credits under SB 375 to cities and counties that permit and site commercial wind, solar and biomass energy projects.


Local Planning

Lawmakers have introduced numerous bills that would affect city and county land use planning. One of the more unusual but potentially far-reaching bills is SB 518 by Sen. Alan Lowenthal (D-Long Beach), which is intended to reduce the amount of free parking funded by public entities or required of development. Sponsored by the Natural Resources Defense Council, the bill would prohibit the use of state funds directly or indirectly for subsidizing free parking, with a few exceptions. The bill also would require cities and counties to adopt and implement by 2012 a selection of parking reform measures, which could include reducing or eliminating minimum parking requirements, establishing maximum parking restrictions, and allowing shared parking facilities to meet commercial area needs.

"My intent is not to discourage driving but to reduce subsidies that artificially encourage driving," said Lowenthal. "Free parking has a lot of negative consequences. It artificially encourages people to drive, resulting in more traffic congestion, greenhouse gases and other emissions. It spreads out land uses and makes public transit less feasible. It drives up the cost of development."

Lowenthal acknowledged the bill is proposed at the same time the state has eliminated all funding for transit operations but said he is trying to restore the transit money. "Ultimately, I believe that reducing subsidies for parking will increase the market for and financial feasibility of expanded transit service," he said.

On a different front is a CBIA bill, AB 1084 by Assemblyman Anthony Adams (R-Hesperia), that would revise the Mitigation Fee Act. The bill requires updated nexus studies that justify fees, allows anyone who is subject to a fee to demand that a local agency update its fee calculations, and eases the appeal process. The CBIA's Coyle said most jurisdictions have maintained the level of impact fees despite housing price drops of 40% or more, which makes construction of new units economically infeasible.

"It's definitely not an in-your-face approach to reforming the law," Coyle said of AB 1084. "There's just got to be some give in this process of imposing these impact fees on projects. We can't stop an economic recovery in its tracks."

Coyle said the bill could force some jurisdictions to reduce fees, but he noted a number of cities and counties have already begun to do so voluntarily in order to spur construction.

The prospects for AB 1084 are uncertain, as Adams is a minority party member and he faces a Republican-sponsored recall effort because he voted for the budget package earlier this year.

Back for another round this year are two fire and planning measures – Assembly Bill 666 by Assemblyman Dave Jones (D-Sacramento) and SB 505 by Sen. Christine Kehoe (D-San Diego). The Jones bill would prohibit counties from approving a subdivision map in a "state responsibility area" (SRA) or "very high fire hazard severity zone" unless the county makes findings that sufficient firefighting service is available and that the development provides adequate access. The Kehoe bill would require cities and counties with SRA or very high fire hazard severity zone territory to update their general plan safety elements to reflect recommendations by the State Board of Forestry and Fire Protection. The bill would also require the Governor's Office of Planning and Research to update its fire hazard planning guidelines and recommend new CEQA Guidelines that address fire hazard impacts. While Jones's bill is very similar to a measure vetoed last year, Kehoe's measure is less stringent than a failed 2008 bill that would have prohibited certain development.

In general, fire agencies and firefighters back the bills, while property owners, developers and local governments oppose them. During a committee hearing in April, Kehoe said her bill was intended to encourage communication between entities that approve development and entities responsible for fighting fires in those developments – essentially, between counties and the California Department of Forestry and Fire Protection.

"This bill is good planning. It's common sense. Frankly, it makes good fiscal sense," said Kehoe, who pointed out the state spends about $1 billion a year on fire suppression. "The whole goal here is to bring down the state's cost for fire suppression."

But Sen. Sam Aanestad (R-Grass Valley), most of whose district would be affected by the legislation, said the real issue is forest management, not development. "We don't need to do any more talking. What we need to do is get rid of the fuels. … We don't need to be regulating community development."

Kehoe's bill made it out of committee on a party line vote.


Water, Water Everywhere

A third consecutive year of less-than-average precipitation and growing concern over the health and reliability of the Bay Delta have resulted in a flood of water bills. Both Democratic and Republican lawmakers have introduced water bonds, which range from $9.8 billion to $15 billion apiece, and the governor has stated an interest in getting a water bond in front of voters. Some of the water bond bills are better defined that others, but most would allocate the money for a combination of increased storage, improved conveyance and environmental restoration.

In addition, Democrats are carrying more than half a dozen bills that address Delta governance and management, and one of those bills could become a vehicle to block development of a peripheral canal that would divert fresh water away from the Delta.

Other legislation deals more directly with the link between land use planning and water. Sponsored by the PCL, AB 1408 would permit developers to use water conservation measures to satisfy water supply requirements for large subdivisions and commercial projects. The bill also establishes a "water conservation mitigation fund" into which developers could pay fees to offset fully a project's estimated water use.

The bill would set up a voluntary, not mandatory, process, noted Mindy McIntyre, PCL's water program manager. "It does help accommodate growth in an environmentally sustainable manner," she said.

Another PCL bill, SB 565 (Pavley), mirrors a bill from the late 1980s that established a target for recycling and trash reduction that counties were forced to meet. In this case, SB 565 would mandate that 50% of wastewater now discharged into the ocean be recycled by 2030. The idea is to quadruple the amount of water now recycled to 2 million acre-feet annually, which is about the amount the State Water Project delivers on average, McIntyre said.

The Pavley bill is receiving stiff resistance from the Association of California Water Agencies and the California Association of Sanitation Agencies, who argue that funding for treatment and distribution facilities needed to recycle more wastewater has been lacking for years.

Lawmakers have until June 5 to move bills out of their house of origin. The first year of the two-year legislative session is scheduled to conclude September 11. Bills that do not pass by that deadline could return in 2010.

 

 

Proposed Land Use Legislation For 2009


California Environmental Quality Act (CEQA)

• AB 696 (Hagman). Allows a project applicant to resolve CEQA disputes with a lead agency before an arbitrator.

• AB 1204 (Huber). Expands CEQA streamlining in last year's SB 375 to include commercial projects that comply with a sustainable communities strategy or alternative planning strategy.

• AB 1321 (Eng). Creates the "advance infrastructure mitigation program" in the Natural Resources Agency to streamline environmental review and mitigation of infrastructure projects.

• SB 476 (Correa). Modifies the exhaustion of administrative remedies requirement for CEQA litigation.


Climate Change

• AB 118 (Logue). Repeals AB 32, the Global Warming Solutions Act of 2006.

• AB 376 (Nava), AB 1404 (De Leon), SB 722 (Steinberg). A three-bill package that addresses the use of greenhouse gas emissions mitigation credits.

• AB 782 (Jeffries), AB 881 (Huffman), SB 560 (Ashburn). Three very different SB 375 follow-up bills. AB 782 exempts near-term transportation projects, and prohibits anyone from suing over approval of a sustainable communities strategy. AB 881 is specific to Sonoma County. SB 560 provides emissions credits to cities and counties that permit and site commercial wind, solar and biomass energy projects.

• AB 1504 (Skinner) and SB 144 (Pavley). Two bills intended to preserve forests for their carbon sequestration qualities. The Assembly bill would require timber harvest plans to mitigate against the release of carbon dioxide. The Senate bill would permit the state to impose a fee on the conversion of timberlands to other uses, and permit the state to acquire forest conservation easements.

• SB 104 (Oropeza). Adds any anthropogenic gas to the list of gases regulated under AB 32.

• SB 295 (Dutton). Prohibits the Air Resources Board from implementing AB 32 until the state unemployment rate falls below 5.8%.

• SB 391 (Liu). Requires the California Transportation Plan to address how the state will reach AB 32 emissions goals.

• SB 575 (Steinberg). Provides SB 375 cleanup. This bill could evolve greatly.

• SB 721 (Steinberg). Establishes a Climate Action Team to coordinate state policy.


Economic Development

• AB 507 (Arambula). Requires a project that receives assistance from the Infrastructure and Economic Development Bank (I-Bank) to meet certain economic development and land use criteria.

• AB 1047 (V. Manuel Perez). Requires the I-Bank to establish a program to assist small and rural communities with obtaining local infrastructure financing.

• SB 27 (Hancock). Prohibits the payment of incentives to a business that moves its situs address but does not move the physical location of the business. The bill is intended to prevent one local government from stealing another entity's sales tax, which is allocated based on situs address. The bill has already passed the Senate. Schwarzenegger vetoed a similar bill last year.


Finance

• ACA 9 (Huffman) and SCA 12 (Kehoe). These constitutional amendments ask voters to lower the approval threshold for local special taxes, property tax increases and bonds from two-thirds to 55%.

• ACA 15 (Arambula). Lowers the approval threshold for transportation tax measures from two-thirds to 55%.

• AB 338 (Ma). Expands from one-quarter mile to one-half mile the area around a transit station that may be part of an infrastructure financing district that uses tax increment financing. Also eliminates the requirement for voter approval. The governor vetoed a similar bill last year.

• AB 878 (Caballero). Permits local governments to expand use of public-private partnerships to fund "revenue-generating infrastructure projects."

• AB 1176 (Ammiano) Authorizes San Francisco to create an infrastructure financing district along the waterfront. A similar bill died in 2008.

• AB 1192 (Audra Strickland). Prohibits a local government from using lease-purchase financing.


Housing

• AB 558 (Portantino). Authorizes a city to meet 10% of its regional housing needs assessment through a program that places foster youth in existing households.

• AB 566 (Nava). Limits the conversion of mobile home parks to resident-owned subdivisions.

• AB 570 (Arambula). Alters a Department of Housing and Community Development program so that housing trust funds in small and rural communities are better able to compete for state funding. The bill contains modest changes from legislation vetoed last year.

• AB 761 (Charles Calderon). Limits local mobile home rent control measures.

• SB 16 (Lowenthal). Allows low-income housing tax credits awarded between July 1, 2008 and January 1, 2010 to be refundable. The intent of this urgency legislation is to bring investors back to the market.

• SB 326 (Tony Strickland). Suspends certain housing element update obligations until after completion of the 2010 census. The bill also requires a housing element to quantify existing and projected foreclosure rates, and specify how those rates impact housing needs.

• SB 500 (Steinberg). Spot bill that will likely address creation of a permanent funding source for affordable housing development.

• SB 595 (Cedillo). $1.5 billion bond to fund supportive housing projects for veterans.


Local Planning

• AB 333 (Fuentes). Extends the expiration date of tentative subdivision maps by 72 months.

• AB 408 (Saldaρa). Requires a city or county to notify the applicable regional water quality control board of a proposed general plan amendment or plan adoption.

• AB 596 (Evans). Requires the Office of Planning and Research to develop model form-based zoning ordinances that reflect smart growth principles.

• AB 666 (Jones). Requires a county to make specific findings regarding fire service availability and firefighting access before approving development in a state fire responsibility area or very high fire hazard severity zone. Similar legislation was vetoed last year.

• AB 1084 (Adams). Revises the Mitigation Fee Act to require updated nexus studies, provide greater ability to appeal fees and permit developers to request annual recalculation of fees.

• SB 194 (Florez). Requires that cities and counties receiving Proposition 84 funds adopt general plan goals and policies to promote environmental and social justice in disadvantaged, unincorporated communities.

• SB 215 (Wiggins). Requires local agency formation commissions to consider sustainable communities strategies before acting on boundary changes.

• SB 268 (Harmon). Requires alcohol and drug abuse recovery or treatment centers to comply with local zoning.

• SB 310 (Ducheny). Permits a city, county or special district to develop a watershed improvement plan that addresses stormwater runoff. The building industry-sponsored bill would eliminate project-based regulation of runoff.

• SB 406 (DeSaulnier). Permits metropolitan planning organizations and county transportation commissions to levy a $2 annual fee on vehicle registrations to fund regional and local blueprint planning. The bill also requires the governor's Strategic Growth Council to coordinate with a reconstituted Planning Advisory and Assistance Council within the Office of Planning and Research on implementing regional blueprints.

 • SB 505 (Kehoe). Requires cities and counties in "very high fire hazard severity zones" to adopt new general plan goals, policies and objectives to minimize wildfire risks to new development. Unlike legislation that failed in 2008, SB 505 would not prevent development that lacks sufficient fire protection.

• SB 518 (Lowenthal). Prohibits the expenditure of state funds to subsidize parking, and requires local governments to select from a menu of parking policies, such as eliminating minimum parking requirements or setting maximum parking standards.

• SB 737 (Negrete McLeod). Repeals an exemption permitting counties not to form a countywide airport land use commission. The bill would affect nine counties and is strongly opposed by the City of Watsonville and cities in San Bernardino County, which now have land use autonomy around airports.

• SB 763 (Walters). Extends the expiration date of vesting tentative subdivision maps by 12 months.


Redevelopment

• AB 720 (Caballero). Permits a city or county that uses housing set-aside funding to rehabilitate a unit to count that unit toward meeting its fair share of low-, very low-, or extremely low-income housing. This bill may be substantially amended.

• AB 1422 (Bass). Permits redevelopment agencies until 2013 to use money not in the housing set-aside fund to refinance or purchase subprime and nontraditional mortgages for income-eligible households, and to help lenders and developers in purchasing and selling vacant, foreclosed homes regardless of income levels.

• SB 93 (Kehoe). Requires a redevelopment agency to make updated blight findings before funding a public works project within or outside a redevelopment project area, and to find there is no other reasonable means of financing the project. The bill is intended to prohibit redevelopment fund transfers, such as a $31 million transfer in San Diego from the Grantville area to fund a downtown trolley project. The California Redevelopment Association and numerous cities oppose the bill.

• SB 430 (Dutton). Extends from 10 years to 20 years the time limit on San Bernardino County's Cedar Glen disaster recovery project area redevelopment plan (see CP&DR Redevelopment Watch, January 2007).

• SB 477 (Florez). Permits a redevelopment agency to loan or grant money to the purchaser of low-income housing tax credits for the construction of low-income rental housing.

• SB 530 (Dutton). Revises calculation of pass-through payments for certain redevelopment projects.


Renewable Energy

• AB 45 (Blakeslee). Authorizes cities and counties to regulate small wind energy systems.

• AB 64 (Krekorian) and SB 14 (Simitian). The first bill requires utilities to get 50% of energy from renewable sources by 2035, while the second bill sets a standard of 33% by 2020. AB 64 also creates a Renewables Infrastructure Authority that would identify suitable zones for renewable energy generation and serve as lead agency for reviewing projects in the zones.

• AB 1351 (Blakeslee). Permits utilities to count certain hydroelectric projects in their renewable energy portfolios.

• SB 281 (Runner). Eases endangered species requirements for renewable energy projects in the Mojave and Colorado deserts until the state adopts a regional conservation plan, which is in process.


Transportation

• AB 113 (Portantino). Requires the state to sell properties acquired for extension of the 710 freeway through South Pasadena, a stalled project that has been on the drawing board for decades.

• AB 744 (Torrico). Authorizes congestion pricing programs within the nine-county Bay Area.

• AB 1135 (Skinner). Require motorists to report their odometer readings when renewing vehicle registrations.

• AB 1375 (Galgiani). Establishes the Department of High-Speed Trains, which would assume responsibility for the proposed high-speed rail system.

• SB 205 (Hancock). Authorizes transportation planning agencies to place on the ballot for majority approval a measure raising vehicle registrations by up to $10 to fund transportation projects and programs.

• SB 409 (Ducheny). Creates the Department of Railroads and prohibits any other state agency from obtaining federal funds for intercity rail, high-speed rail or freight rail projects. The Public Utilities Commission opposes the bill.



Water

• AB 13 (Salas), AB 39 (Huffman), SB 12 (Simitian), SB 229 (Pavley) SBs 457, 458 and 808 (all Wolk). This legislation all concerns the Sacramento-San Joaquin River Delta. AB 13 establishes a conservancy to oversee a Delta sustainability program. AB 39 requires the state to implement the Delta Vision Blue Ribbon Task Force's strategic plan (see CP&DR, February 2009). SB 12 creates a Delta Council to adopt a comprehensive Delta ecosystem and water plan. SB 229 reconstitutes the California Water Commission and authorizes it to oversee Delta governance. SB 457 creates the Delta Stewardship Council to adopt a new Delta plan. SB 458 creates a conservancy specifically to promote public access and protect agricultural and cultural resources. SB 808 attempts to protect beneficial uses of water in the Delta and could be a tool to block a proposed peripheral canal.

• AB 49 (Feuer). Requires California to achieve a 20% reduction in urban water use by 2020.

• AB 55 (Jeffries). Establishes new criteria for nonresidential projects that require a water supply assessment. Only projects that would use at least as much water as a 500-unit housing project would require an assessment under AB 55.

• AB 300 (Caballero). Requires a city or county to consider voluntary demand management measures when reviewing a development project's water supply assessment.

• AB 1187 (Huffman), SB 371 (Cogdill), SB 456 (Wolk), SB 735 (Steinberg), and SB 301 (Florez). The first four of these bills would place a $10 billion water bond before voters. The Florez bill proposes a $15 billion water bond.

• AB 1408 (Krekorian). Establishes a "water conservation mitigation fund," into which subdivision developers would pay fees for conservation projects that fully offset the new subdivision's projected water use. The offsets could be used to meet water supply requirements for large projects.

• SB 565 (Pavley). Requires that 50% of wastewater now discharged into the ocean be recycled by 2030.


Williamson Act

• AB 494 (Caballero). Permits a parcel split of up to 10 acres on land covered by a Williamson Act contract in order to accommodate construction of farmworker housing.

• AB 512 (Yamada). Makes horse breeding and training facilities compatible uses under the Williamson Act.

• SB 170 (Florez). Permits a Indian tribal government to cancel a Williamson Act contract so the tribe may develop a cultural center, housing or infrastructure on the agricultural land. The Santa Ynez Band of Chumash Indians, which operates a casino and wants to expand its reservation in Santa Barbara County, is the bill sponsor.

• SB 715 (Wolk). Strengthens various Williamson Act provisions.


Other

• AB 102 (Smyth). Establishes the Santa Susana State Park Advisory Committee to recommend whether the 2,800-acre Rocketdyne property in eastern Ventura County should become a state park. For many years, the site was used to test rocket engines and nuclear reactors. Lawmakers have sought to ensure the property is not developed for residential uses.

• AB 109 (Feuer). Imposes a moratorium until 2012 on new digital advertising displays visible from any highway.

• AB 210 (Hayashi). Clarifies how cities may adopt their own green building standards.

• AB 397 (Jeffries). Converts the South Coast Air Quality Management District board from an appointed to an elected body. 

• AB 444 (Caballero). Clarifies that nonprofit entities may accept and disburse public funds for management of mitigation lands and conservation easements held by land trusts or special districts.

• SB 690 (Leno). Permits the removal of illegal outdoor advertising displays and displays that were permitted but have been modified in a way that makes them illegal.