Although Sacramento is short of money these days, the state capital does not lack for policy initiatives that directly or indirectly affect land use.
In fact, veteran lobbyists say they can remember few years when legislators introduced so many policy bills. The California Chapter of the American Planning Association (CCAPA) has no fewer than 261 bills on its tracking list.
"Maybe people are using the budget deficit as justification," speculated Pete Price, lobbyist for the League of Conservation Voters.
Several measures would give local governments greater responsibility for affordable housing production, rather than simply requiring locals to plan for housing. One proposal (SB 744, Dunn) would apparently set a precedent by establishing a state appeals board to which housing developers could seek relief from a City Council or Board of Supervisors decision regarding entitlements and even project conditions.
Proposals to lower the voting requirement to impose taxes for infrastructure and other public projects appear to have traction this year. Local governments, planners and some business and labor organizations back the proposals, which would cut the two-thirds voter approval requirements down to majority vote or 55%. The bills would place a constitutional amendment before state voters. Meanwhile, AB 531 (Kehoe) would place a $10 billion infrastructure bond on the ballot in 2004.
As usual, there are also several proposals that tinker with the California Environmental Quality Act. The most important appears to be AB 406 (Jackson), which would bar cities and counties from allowing a developer to prepare his own environmental impact report (see CP&DR Environment Watch, March 2003).
Between trying to maintain funding levels and defending against new mandates, local government representatives appear to be overwhelmed. Some of the housing bills are particularly troubling to cities and counties.
"We keep getting blamed in the halls of the state Legislature for apartments not getting built, when the private markets doesn't want to build them," said Daniel Carrigg, a lobbyist for the League of California Cities. "We can't approve it if the private developers are not asking to build it."
However, said California Housing Law Project lobbyist Marc Brown, no housing gets built without a local government permit. There is more that local governments could do to help the private sector build affordable units, he said. Bills that would establish housing production standards for local government also provide incentives for locals, he said.
During the previous legislative session, Sen. Joe Dunn (D-Santa Ana) led the fight to put real sanctions into the housing element law. Dunn is no longer chairman of the Senate Housing and Community Development Committee, but his SB 744 appears to resume the battle. The measure would give planning, infrastructure and economic development grants priority to a city or county that has met at least 10% for each of the very low-, low-, and moderate-income housing need during the previous year, or 30% of each over the previous three years.
More controversially, SB 744 would establish a Housing Accountability Committee within the Department of Housing and Community Development (HCD). The committee would be composed of three governor's appointees, including one representative of local government, and the directors of HCD and the Governor's Office of Planning and Research as ex-officio members. The committee would hear appeals from developers whose proposed projects are consistent with local zoning or the general plan. The panel could overturn a city or county decision to deny a project if the committee found the local rejection was unreasonable and inconsistent with meeting local housing needs. The committee could also modify or remove conditions of approval that render the project infeasible or that conflict with meeting local housing needs.
Backers of SB 744 say the measure would establish an appeals process similar to one that has functioned well for years in Connecticut and Massachusetts. But opponents say the comparison is bogus because California has an "anti-NIMBY" law (Government Code § 65589.5) that the other state's lack.
Carrigg, the cities' lobbyist, said that because the anti-NIMBY law makes denial of an affordable housing project so difficult, the real motivation behind SB 744 is to eliminate as many conditions of approval as possible. How does one determine that a certain condition makes a project "infeasible," he asked. And what about state conditions — such as requiring use of prevailing wage labor for subsidized projects — that may make affordable housing infeasible, he continued.
Price, of the League of Conservation Voters, said environmentalists were likely to oppose SB 744 because of its departure from the principle of local control.
Assemblyman Darrell Steinberg (D-Sacramento) has introduced two housing bills that are likely to generate controversy — AB 1160 and AB 1426. The former bill covers a number of subjects, while the latter is aimed at affordable housing production in the Sacramento region.
As a follow-up to 2002 legislation making second units a ministerial item (see CP&DR, October 2002), AB 1160 would eliminate "unreasonable" development standards for second units. The bill would prevent local governments from imposing occupancy requirements for second units or the principle dwelling. The bill also would require a city or county that has not adopted a second unit ordinance to approve second unit applications based on state requirements. Aside from second unit provisions, AB 1160 would require local government to reduce parking standards for projects that qualify for a density bonus, and require even deeper reductions if the project is within half a mile of a transit stop. Furthermore, AB 1160 would allow multi-family or single-family residential development on any parcel zoned for, or developed as, an elementary or high school. The bill also expands the definition of "by-right" housing projects.
The bill has already drawn local government opposition. "Cities are going to be very frustrated with this bill," Carrigg said. "It has several lightening rod proposals that go straight to neighborhood issues."
The second-unit provisions, Carrigg argued, would permit a single-family residence plus a second unit of up to 1,200 square feet in any residential zone, allow both structures to be rented, and prohibit imposition of parking standards. Those provisions are not going to encourage neighborhoods to embrace affordable housing development, Carrigg warned.
But housing lobbyist Brown contended that the bill is intended to overcome local requirements and conditions of approval that are imposed with the intent of making second-unit development nearly impossible.
Assembly Bill 1426 would authorize every city and county in the six-county Sacramento region to enter into a joint powers agreement requiring that 10% of housing constructed every year be for very low- and low-income residents. Cities and counties that sign on and meet the production requirement would receive priority for infrastructure funding and would become eligible for certain federal programs, according to an analysis by the California State Association of Counties.
The opposition that killed Steinberg's attempt during the last session to reallocate sales taxes in the Sacramento region based partly on housing goals has not surfaced. In fact, a number of local government officials in the region have praised Steinberg for his negotiations, and a broad coalition is supporting AB 1426.
"Mandates won't work," said California Building Industry Association lobbyist Richard Lyon, who endorsed AB 1426. "We think his [Steinberg's] approach, to encourage cities and counties to develop their own solutions, is the fairest approach and the one that is the most likely to achieve the goal."
Another omnibus housing bill that has the attention of local governments and environmentalists is SB 619 (Ducheny). Among other things, the bill would streamline local government review of affordable housing projects of fewer than 100 units, or of fewer than 150 units if the project were within half a mile of transit.
"We have lots of hearings when the zoning is established," Brown said. "Why do we need a second set of hearings when a project comes in the door that is consistent with the zoning?"
Because shutting off public discussion is "anti-democratic," responded Carrigg, who questioned the bill's implications for CEQA review. It is best to hear opponents' concerns and address them, he said. "It doesn't seem like the problems go away if you make a decision without public input," he argued.
The Ducheny bill addresses this issue by giving local governments safe harbor from NIMBY lawsuits, according to Brown.
Senate Bill 619 also would add language to the Coastal Act to encourage affordable housing production, apply the anti-NIMBY law to mixed-use developments, and modify the Cal Home program.
While local government officials, including planners, have concerns about many of the housing bills, the locals are generally behind proposals to lower voter thresholds for new taxes. Those efforts are a priority this year for CCAPA, lobbyist Sande George said.
Two of the most interesting tax measures are SCA 2 (Torlakson) and SCA 11 (Alarcon). Both would require approval of state voters. The Torlakson measure would reduce the threshold for imposition of sales taxes or special taxes for transportation or "smart growth planning" to a majority vote. The Alarcon bill would cut into Proposition 13 by allowing a majority of voters to impose an additional property tax to pay for bonds that fund infrastructure, affordable housing projects or open space land acquisitions.
Anti-tax groups have vowed to oppose these and other measures that would lower the two-thirds threshold. But others, including the Silicon Valley Manufacturing Group, are pursuing an initiative to lower the voter threshold for transportation taxes to 55%.
Among the CEQA bills, AB 406's proposal to require EIRs to be prepared by either the lead agency or by a consultant hired by the lead agency is the most substantial change. The bill would bar project applicants from hiring their own CEQA consultants, which is the practice in roughly 20% of the state's cities and counties. The bill is a response to controversy regarding the suppression of endangered species information prepared by a developer-hired consultant for the Newhall Ranch project in Los Angeles County.
Senate Bill 532 (Romero) would eliminate the requirement that a lead agency find that a project may have a significant impact if the impacts are individually limited, but cumulatively considerable. The bill also would require a determination regarding a project's individual or cumulative contribution to health risks due to exposure to hazardous substances.
Sen. Dean Florez (D-Shafter) has introduced two bills regarding development of dairies, which is one of the biggest issues in his southern San Joaquin Valley district. His SB 503 would allow a dairy developer to submit an EIR to the Attorney General's office to establish a rebuttable presumption of validity. A second bill that has not been as well-received by dairy farmers and local governments, SB 707, would prohibit new dairies within three miles of an urbanized area or school.
Land Use Bills To Watch
• AB 406 (Jackson). Prohibits lead agencies from allowing developers to hire their own CEQA consultants.
• AB 531 (Kehoe). $10 billion bond for the November 2004 ballot to fund grants and loans to local governments for new infrastructure serving infill development and to replace aging infrastructure.
• AB 1011 (Richman). Spells out how money from the proposed 21st Century Infrastructure Investment Fund will be allocated. Voters are scheduled to decide on creation of the fund — a set-aside of general fund money — in March 2004.
• AB 1158 (Lowenthal). Overhauls the housing element process to give councils of government more authority in determining and distributing needs. Also makes the housing element process a 6-year process to coincide with transportation planning.
• AB 1160 (Steinberg). Prevents local governments from imposing "unreasonable" development standards on second units.
• AB 1221 (Steinberg). Swaps half of a city or county's sales tax revenue with property tax revenue.
• AB 1244 (Chu). Permits grants from the 1998 school bond to fund joint-use projects that would provide neighborhood resources. Targeted toward Los Angeles Unified School District.
• AB 1426 (Steinberg). Sets affordable housing production standards for the Sacramento region.
• SB 21 (Machado). Legislative framework for spending Proposition 50 bond revenues.
• SB 86 (Machado). Establishes the Sacramento-San Joaquin Delta Conservancy to protect farmland and open space.
• SB 109 (Torlakson). Expands the state controller and attorney general's oversight of redevelopment agencies.
• SB 114 (Torlakson). Eliminates the sunset provision for, and modifies, an existing law that prohibits local governments from providing financial incentives to automobile dealerships and big-box retail stores that are relocating from a nearby community.
• SB 115 (Torlakson). Requires the seller of one to four housing units to notify the buyer of zoning and permitted housing densities on properties within one-quarter mile of the units.
• SB 178 (Cedillo). Amends state rent control law to permit local governments to impose restrictions for "inclusionary housing."
• SB 619 (Ducheny). Streamlines processing of affordable housing projects.
• SBs 700-709 (Florez). A 10-bill package aimed at improving air quality in the Central Valley.
• SB 744 (Dunn). Establishes a state board to hear appeals of housing developers, and provides incentives for local governments to produce housing.
• SB 898 (Burton). Until 2015, prohibits a local government from zoning for residential or commercial development agricultural land that qualifies as a specified class.
• ACA 7 (Dutra). Allows approval of a half-cent sales tax override for a local transportation agency with a 55% vote.
• ACA 11 (Alarcon). Allows approval of local general obligation bonds for housing, infrastructure and open space with a majority vote.
• ACA 14 (Steinberg). Permits approval of a special tax for infrastructure or quality-of-life projects with a majority vote.
• SCA 2 (Torlakson). Allows approval of sales tax override for transportation and "smart growth" programs with a majority vote.
Pete Price, League of Conservation Voters, (916) 448-1015.
Daniel Carrigg, League of California Cities, (916) 658-8222.
Marc Brown, California Housing Law Project, (916) 739-6293.
CHLP legislation website, www.housingadvocates.org/default.asp?ID=736
Planning & Conservation League legislation website: www.pcl.org/LEG/leg.html