Lawmakers Consider Land Use Bills

Paul Shigley on
Apr 1, 2004

With fewer than five months remaining in the 2003-04 session of the state Legislature, it appears that state lawmakers will approve few, if any, major land use bills. Still, there are scores of land use bills alive that nibble or even take big bites on the edges.

With home prices continuing to reach new peaks despite an economic malaise, affordable housing remains a hot topic in the Capitol, and a number of bills favored by the building and real estate industries and by housing advocates are pending. Local government opposes most of those bills. Also alive is legislation addressing redevelopment, the California Environmental Quality Act and other land use matters.

Exactly how much legislation will reach Gov. Arnold Schwarzenegger’s desk — and whether the governor will sign the bills — is unclear. The administration has several members with "smart growth" credentials, including Business, Transportation and Housing Secretary Sunne Wright McPeak, Resources Agency Secretary Mike Chrisman and California Environmental Protection Agency Secretary Terry Tamminen. However, the administration so far has focused on budget issues and has not pushed a land use agenda. The budget is also the top priority for many lawmakers.

A housing element working group sanctioned by the Department of Housing and Community Development (HCD) has reached agreement on some secondary issues, such as council of governments’ methods for determining housing fair shares and by-right housing development. But the group, which includes representatives of all the usual interest groups, has not reached consensus on the big issues of state enforcement and self-certification of housing elements by cities and counties. Whatever the working group finally decides will likely appear in AB 2158 (Lowenthal).

Housing advocates say that Assembly Speaker Fabian Nunez (D-Los Angeles), although a freshman with a limited voting record, appears to be interested in their issue. The speaker, who lives in downtown Los Angeles, is carrying some tenant legislation but no land use bills.

One of the bills most closely watched by cities and counties is AB 2702 (Steinberg), which would limit the ability of local government to regulate second units. The bill does not contain all of the measures that were in last year’s unsuccessful AB 1160 (see CP&DR, April 2003). But AB 2702 would require cities and counties to allow second units in all residential zones, prohibit the establishment of minimum or maximum second-unit sizes of less than 600 square feet, and prohibit "unreasonable" development standards.

League of California Cities lobbyist Dan Carrigg said nondiscretionary approval of second units already exists under legislation approved two years ago. Under AB 2702, "the state would be writing the zoning ordinance for every community in the state," Carrigg said.

"I don’t know why we keep doing this," Carrigg said of second-unit legislation. "Taking the public out of the process does not make the controversy go away."

But Marc Brown of the California Rural Legal Assistance Foundation, which is sponsoring the bill along with the California Association of Realtors, called AB 2702 a "good, substantive" bill that addresses some local governments’ unwillingness to approve second units. The bill would still allow cities and counties to cap unit size, require the occupants of one unit to be a property owner and establish parking standards, Brown said. The bill also sets standards for housing being developed jointly with a school.

One bill that generated tremendous controversy last year, SB 744, remains alive this year. The bill would establish a board within HCD to hear appeals from affordable housing developers whose projects have been denied or conditioned by a city or county. Although the bill has not been amended in nearly a year, the author, Sen. Joe Dunn (D-Santa Ana), has accepted a great deal of input on the legislation and is expected to introduce changes.

While local governments generally oppose SB 744, some locals are getting behind SB 2980 (Salinas), which would allow a city or county to self-certify its housing element if the locality met housing production and other criteria.

Another bill being co-sponsored by affordable housing advocates is SB 1818 (Ducheny), which would change the density bonus law. Currently, a housing development that includes at least 20% "affordable" units qualifies for a 25% density bonus. Senate Bill 1818 would create a sliding formula guaranteeing density bonuses of 12.5% to 40%. The bill also would give a developer a 15% to 40% density bonus if the developer donated a certain amount of land to a city or county for construction of affordable units. The bill is scheduled for its first committee hearing this month.

A different bill by Sen. Denise Ducheny (D-San Diego), SB 558, is being sponsored by the California Building Industry Association (CBIA). It would require a city or county to zone enough land to accommodate 20 years of housing development. The bill is intended to drive the housing element, which has only a five- or six-year timeframe, said Tim Coyle, CBIA vice president. Major projects take a decade to break ground, so it only makes sense to require a 20-year supply, Coyle said. However, local governments would apparently get to determine what constitutes a 20-year supply under the legislation. The bill has already passed the Senate.

Another CBIA bill back for a second year that also has passed the Senate is SB 493 (Cedillo), which attempts to encourage brownfield development by having state regulations mirror federal rules. Chiefly, the bill would grant legal immunity to "innocent landowners," "bona fide prospective purchasers" and contiguous property owners who had nothing to do with contamination of a site. The lengthy bill would end the state’s current system, in which anyone who is or has been owner of a contaminated property may be held liable for cleanup whether or not they had anything to do with the pollution — a system that bill proponents say discourages brownfield redevelopment. The bill has the support of developers, the California Redevelopment Association and several environmental justice groups. Environmental organizations are divided on SB 493 while trial lawyers oppose it.

In the world of redevelopment, several pieces of legislation concern only specific jurisdictions, such as AB 1358 (Simitian), which would let cities of less than 100,000 people in San Mateo, Santa Clara and Santa Cruz counties spend housing set-aside funds within 5 miles of a project area. Although not directly related to capital-R redevelopment, one of the most significant pieces of redevelopment legislation is SB 1592 (Torlakson). The bill would require cities and counties to adopt infill ordinances or specific plans, identify potential infill development sites and offer at least five incentives for infill housing development. Senate Bill 1592 is scheduled to receive its first hearing this month.

California Environmental Quality Act (CEQA) legislation appears to be light this year. Last year’s hot-button but unsuccessful CEQA bill, AB 406 (Jackson), is back this year and has passed the Assembly. The bill initially sought to prohibit cities and counties from allowing developers to hire their own CEQA consultants, a practice used by more than 100 cities and counties. That part of the bill has been deleted and the bill now prohibits developers from enforcing confidentiality agreements with their consultants. The bill also requires landowners to provide site access to local government officials and their consultants.

As currently written, Assembly Bill 2251 (Lowenthal) allows greater use of master environmental impact reports for complying with CEQA’s cumulative impact analysis requirements. The bill, however, could be re-written to contain recommendations from a CEQA task force organized by the League of California Cities.
Because of the state budget deficit, few pieces of legislation attempt to create new programs or allocate money in new ways.

Major Land Use Legislation Proposed For 2004

Brownfields

• AB 389 (Montanez). Makes a number of changes to state law with the intent of expediting reuse of brownfields. Among other things, the bill defines a brownfield as urban or suburban land or buildings that have not been developed or redeveloped because of contamination or perceived contamination. The bill also requires Cal EPA to formalize procedures for public agencies to enter into agreements with prospective brownfield purchasers.

• AB 2652 (Bates). Requires a utility company seeking Public Utility Commission approval for more electricity to consider restarting an existing facility or building a new power plant on a brownfield.

• SB 493 (Cedillo). Provides cleanup liability immunity for innocent landowners, prospective purchasers and neighboring property owners.

• SB 559 (Ortiz). Requires the Department of Toxic Substances Control to take a number of steps to encourage and speed the cleanup of brownfields.

• SB 805 (Escutia). A "spot bill" that is likely to be amended to contain measures intended to speed brownfields reuse.

CEQA

• AB 2251 (Lowenthal). Allows broader use of master EIRs to meet CEQA’s mandate for studying cumulative impacts. The bill could be amended to include recommendations from a League of California Cities task force.

• AB 2292 (Laird). Requires the Resources Agency to report on the types and effectiveness of mitigation measures used by state and local agencies. This bill could be amended to provide CEQA exemptions for certain infill development projects.

• AB 3034 (Calderon). Encourages the use of master EIRs for potential biotechnology manufacturing sites.

• SB 707 (Florez). Prohibits approval of dairies with at least 700 cows within 3 miles of a city or school if the dairy would have an adverse impact on the city or school. The bill also prohibits the use of negative declarations for these projects.

• SB 711 and SB 1334 (Kuehl). Both bills subject to CEQA review any activity that converts an oak woodland to another use. SB 711 also applies to timberlands.

• SB 1486 (Hollingsworth). Exempts from CEQA construction of any overpass proposed within an easement or right-of-way controlled by Caltrans, a local transportation agency, a city or a county.

Housing

• AB 1426 (Steinberg) and AB 2882 (Cox). Competing measures that attempt to encourage affordable housing development in the Sacramento region.

• AB 1970 (Harman). Allows cities of less than 25,000 people in the coastal zone that meet certain conditions to adopt a housing element that provides for no new housing units.

• AB 2348 (Mullin). Allows a city or county to reduce its share of regional housing needs by 15% if the city or county has met at least 30% of its need and has met 30% more of its need than the region as a whole.

• AB 2702 (Steinberg). Requires a city or county to permit second units in all residentially zoned areas. The bill also limits the conditions local governments may place on second-unit development.

• AB 2836 (Maddox). Changes the definition of "moderate income" from households making up to 120% of median to 140% of median in "tight" housing markets and 200% of median in "severely tight" markets.

• AB 2980 (Salinas). Allows a city or county to self-certify its housing element if certain conditions are met, including production of at least 15% of the jurisdiction’s share of units for low- and very low-income households.

• SB 558 (Ducheny). Requires cities and counties to designate land for 20 years worth of housing development.

• SB 744 (Dunn). Creates an appeals board within HCD to hear appeals from affordable housing developers whose projects have been rejected or conditioned by a city or county.

• SB 1595 (Ducheny). Places a housing bond on the state ballot.

• SB 1818 (Ducheny). Establishes a new, sliding scale for density bonuses based on the number and type of affordable units proposed, with a maximum 40% bonus. The bill also provides bonuses of up to 40% if a developer donates land for affordable housing purposes.

Redevelopment

• AB 269 (Mullin). Allows redevelopment agencies in San Mateo County to spend housing set-aside money outside the redevelopment project area.

• AB 1358 (Simitian). Authorizes cities of less than 100,000 people in San Mateo, Santa Clara and Santa Cruz counties to spend housing set-aside funds within 5 miles of a project area.

• AB 2212 (Runner). Exempts land in the Chino dairy preserve from the requirement that land in a redevelopment project area be "predominately urbanized."

• SB 360 (Romero). Extends an exemption from prevailing wage requirements deadline for certain housing projects.

• SB 1592 (Torlakson). Requires cities and counties to adopt an infill ordinance, identify potential infill development sites and provide at least five incentives for infill housing projects.

Transportation

• AB 304 (Nation). Requires the DMV to add $6 per year to all vehicle registrations in the nine-county Bay Area to pay for stormwater cleanup.

• AB 392 (Montanez). Makes permanent a Caltrans program that awards environmental justice grants of up to $300,000 to local agencies and community groups. Money would come from the State Highway Fund.

• AB 1546 (Simitian). Authorizes the San Mateo County Association of Governments to levy a $4 per year fee on vehicle registration to pay for management of traffic congestion and stormwater pollution.

• AB 3011 (Laird). Authorizes the Santa Clara Valley Transportation Authority to levy an annual fee of up to $4 on vehicle registrations to fund traffic congestion management.

Natural Resources

• AB 496 (Correa). Creates the Santa Ana River Conservancy and authorizes the agency to acquire and manage properties within half a mile of the river.

• AB 1788 (Leslie). Establishes the Sierra Nevada Conservancy, which could acquire and manage land in the mountain range.

• AB 2097 (Oropeza). Extends for one year the Natural Heritage Preservation Tax Credit, which was suspended during the 2002-03 fiscal year. The bill provides tax credits to landowners who donate open space or agricultural land.

• AB 2298 (Plescia). Requires all public water systems with at least 3,000 connections to install water meters.

• AB 2631 (Wolk). Creates the Invasive Species Council that would identify, classify and work to control invasive and non-native species.

• SB 898 (Burton). Originally a bill that prohibited the rezoning of most farmland unless certain findings could be made, the measure is a now a "spot bill" addressing the viability of agricultural lands.

• SB 1052 (Budget and Fiscal Review Committee). Eliminates the Natural Heritage Preservation Tax Credit program.

• SB 1447 (Kuehl). Requires the state to regulate the dredging or filling of any wetland, stream or pond not regulated under the federal Clean Water Act.

• SB 1477 (Sher). Requires anyone proposing a project that impacts a wetlands to file a waste discharge report with the appropriate Regional Water Quality Control Board. The bill also contains a number of measures intended to protect and encourage restoration of wetlands.

• SB 1607 (Machado). Prohibits local agency formation commissions from approving the extension of municipal services to land within the Sacramento-San Joaquin Delta protection zone.

• SB 1820 (Machado). Prohibits a city that annexes land covered by a Williamson Act contract from canceling the contact.

Other

• ACA 14 (Steinberg)and SCA 11 (Alarcon). Both constitutional amendments would reduce the threshold for voter approval of special taxes and bonds for most infrastructure projects from two-thirds to 55%.

• AB 1320 (Dutra). Makes it easier for a city or county to designate a transit village development district (which permits density bonuses) and allows creation of such a district around a bus hub, not only a rail station.

• SB 926 (Knight). Moves the California Main Street Program from the now-defunct Technology, Trade and Commerce Agency to the Office of Historic Preservation. The bill also hands military base retention efforts and a space industry development program to the Business, Transportation and Housing Agency.

• SB 1462 (Kuehl). Establishes the Southern California Military Greenway Commission with the apparent intent of blocking development under military flyways.

• SB 1641 (Alarcon). Requires local governments to prepare a business impact report prior to approving a big-box store. Gov. Davis vetoed a similar bill.

• SB 1776 (Bowen). Reinstates the Energy Commission’s expedited process for reviewing new power plants.