Density Legislation Riles Local Planners
State lawmakers closed their 2001-02 session by approving bills that limit local government's ability to regulate housing density, urge better coordination by state agencies, protect agricultural land, add requirements to local general plans, and decrease litigation over condominium construction.
Lawmakers did not approve proposed housing element reforms, changes to the state-local government finance system, or a bill that called for the Governor's Office of Planning and Research (OPR) to prepare a collection of "best practices." The California Environmental Quality Act remained largely untouched.
The fate of several of the approved land use bills remained uncertain. Gov. Gray Davis had until September 30 to take action on the bills, although in the past he has gone a few days beyond the deadline for signing or vetoing legislation.
Overall, the two-year session was a good one for affordable housing advocates, who consider legislation behind the $2.1 billion housing bond on the November ballot (SB 1227) their biggest achievement. Environmentalists generally fared well, while developers and real estate interests held a mixed bag when the session concluded. Local governments could cheer only the defeat of hostile bills.
"It was quite a positive year for affordable housing, looking on balance at the things that passed," said Julie Snyder, a lobbyist for the group Housing California.
Housing bills divide
Many planners and local government officials were urging Davis to veto two key housing bills, AB 1866 (Wright) ad AB 2292 (Dutra). The former bill makes permits for second units a ministerial act and forces local governments to grant nearly any request for a density bonus. The latter measure requires "no net loss" of zoned housing density unless a city or county makes findings that a downzoning is consistent with an approved housing element.
Daniel Carrigg, a lobbyist for the League of California Cities, predicted the two bills would lead to more litigation, rather than to development of more second units and apartments. "People think they can just sue their way through the housing issue," Carrigg lamented.
But Marc Brown, of the California Housing Law Project, which supported both bills, said opponents have made too much of the measures. "I frankly have been amazed at how everybody has gotten so worked up over this," Brown said of AB 1866. He said AB 2292 was more the important bill but he still called it "pretty much a restating of existing law."
Backers of AB 1866 said the bill is necessary because cities and counties often implement local regulations that make second units and density bonuses impossible to get. Lawmakers appeared swayed by testimony about how an application for a second unit could take a year and multiple hearings to process.
"Part of the problem with our lack of housing in California is that you don't just have a hearing when you establish the zoning standards, you also have a hearing when a property owners comes in to comply with the zoning," Brown said.
Brown charged that local governments' opposition stemmed primarily from provisions in both bills that allow a court to grant attorneys fees to litigants — such as developers and housing advocates — in successful lawsuits against cities and counties. City and county representatives do not deny that they dislike the attorneys fees provisions, but say that they have policy concerns, too.
Carrigg, for example, argued that the mandate for over-the-counter permits in AB 1866 tramples due process rights. "You don't shut up the public without a consequence. They expect to be notified and they expect to have some kind of outlet at the Planning Commission or the Board of Supervisors or wherever," Carrigg said.
While AB 1866's provisions regarding second units generated a great deal of attention, the bill's density bonus language could have broader implications. The bill allows the density bonus — already allowed by state law for affordable housing projects — to trump local regulations, except historic preservation or in cases where there would be an adverse health and safety or environmental impact.
"That's way beyond what most reasonable people would think is the appropriate way to handle density bonuses," said Sande George, lobbyist for the California Chapter of the American Planning Association. A letter to Gov. Davis from George, Carrigg and California State Association of Counties (CSAC) Executive Director Steven Szalay complains that AB 1866 "sweeps all other public policies aside in favor of the demands of a developer."
But the same groups complained that AB 2292 would harm developers because it would make city councils and boards of supervisors reluctant to approve downzoning, or to rezone property from residential to commercial uses. "[W]e believe that the practical outcome of this legislation will be to stifle the ebb and flow of the marketplace and hamper local ability to respond to changing conditions in their communities," George, Carrigg and CSAC lobbyist DeAnn Baker wrote.
A different housing bill intended to induce construction of condominiums benefited from a truce between builders and consumer attorneys over construction defects (see CP&DR, August 2002). Senate Bill 800 (Burton) sets performance standards for builders and gives builders a right to repair alleged defects before a homeowner may sue. Bill supporters said it would decrease litigation over construction defects, which builders say has suppressed condominium construction.
With no votes to spare in the lower house, Assemblywoman Patricia Wiggins (D-Santa Rosa) won approval for a bill that comes as close as lawmakers were willing to get to "state planning." Wiggins's bill, AB 857, emerged from a conference committee in June. It requires state agencies to adopt consistent planning and capital spending priorities based on promoting infill development, protecting environmental and agricultural resources, and encouraging efficient development patterns. The measure also calls for the governor to establish a process whereby agencies work out differences when their policies conflict.
The state "doesn't have any direction as to how it does infrastructure planning at this time," Wiggins said. "Basically it's been a rudderless ship."
Wiggins stripped language from the bill that would have imposed planning mandates on local governments because she could not get the votes. She also had to exempt schools, transportation projects — and even the University of California, because the new UC Merced campus would not meet the bill's dictates. In the end, Wiggins found allies in inner-city lawmakers, who contend the state too often spends money for infrastructure on the urban fringe while ignoring already developed areas.
"The builders and realtors at the state level were opposed," Wiggins said, "basically because they don't want any limits on where infrastructure can go, and their opposition influences some members [of the Legislature]."
Sandra Spelliscy, an attorney and lobbyist for the Planning and Conservation League, called AB 857 a good first step. But, like many people, she said its impact will be determined by how seriously lawmakers and future administrations treat the measure.
A bill that called for OPR to prepare model planning policies and practices failed. The policies would have promoted a number of "smart growth" themes, such as mixed-uses, infill, walkable neighborhoods, and certainty in the entitlement process. Senate Bill 1521 (Kuehl) also would have given bonus points on state grant applications to local agencies that adopted the model policies and practices. However, the administration dropped its support of SB 1521 in August amidst opposition from both builders and local government. At the time, interim OPR Director Tal Finney called the bill a political loser.
Lawmakers approved four bills that, taken together, demonstrate a growing interest in preserving farmland. The bills are AB 1997 and AB 2370, both by Assemblywoman Helen Thomson (D-Davis), AB 3057 (Matthews) and SB 1515 (Machado). Davis has signed both Thomson bills and SB 1515.
Thomson's AB 1997 prohibits the subdivision lands that are subject to agricultural or open space easements, while AB 2370 bars a local agency formation commission from allowing a city to annex land that is under a Williamson Act contract. The latter bill builds on a two-year-old overhaul of LAFCO law, which prohibited annexation of territory in a farmland security zone (FSZ).
"California loses approximately 50,000 acres of agricultural and open space land per year to urbanization," according to an Assembly analysis of AB 2370. "One of the primary ways in which this happens is through annexation of farmland or open space to cities. This bill would prohibit LAFCOs from approving either expansions of spheres of influence or annexation proposals that would affect land under FSZ or Williamson Act contracts, except under certain specified circumstances."
Assembly Bill 3057 adds the word "agriculture" to the name of the open space element, which is a required part of local general plans. The bill also requires local governments to revise their general plans to minimize or avoid land use conflicts and to promote long-term agricultural viability.
Senate Bill 1515 prohibits land protected by an open space or agricultural easement, the Williamson Act or the farmland security zone from being part of a Mello-Roos community facilities district. The bill does not apply to territory that received protection prior to January 1, 2003.
General plan specifics
Besides the AB 3057 requirements for an "agricultural and open space element," three other bills also expanded the scope of local general plans. The bills are AB 2175 (Daucher), AB 2954 (Simitian), and SB 1468 (Knight). However, Davis vetoed AB 2175.
The Daucher bill would have required OPR to include "human service matters" in its general plan guidelines. The bill also would have required the guidelines to address the effects of civilian development on active military bases. Davis called the bill too expensive, saying the $100,000 needed by OPR to prepare the guidelines was not budgeted.
The second provision of AB 2175 tied in with SB 1468, which mandates that the land use element of general plans consider the impact of development on military activities. The bill was sponsored by the Navy, which has seen several of its bases squeezed out of existence by neighboring urban development.
Assembly Bill 2954 requires that a land use element adopted or amended after January 1, 2004, address the distribution of child care facilities. Proponents argued that child care facilities are as important as housing, retail business, industry, open space, schools and garbage disposal facilities — all of which general plans already consider.
The sessions's most controversial general plan bill, SB 910 (Dunn), would have allowed the state Department of Housing and Community Development (HCD) to fine cities and counties whose housing elements failed to receive HCD certification. The bill also would have altered the regional housing allocation process. The bill was the subject of countless working group meetings and private negotiating sessions at the Capitol, but in the end lawmakers could not agree. Most people expect similar legislation to reappear in 2003.
Other general plan bills that failed this year included AB 2863 (Longville), which would have redefined the terms "residential unit" and "substantial compliance" with housing element law; AB 2864 (Wiggins), which would have required local governments to submit annual reports on how their general plan complied with state guidelines; and SB 1939 (Machado), which would have required OPR to notify the Attorney General's office if a general plan were eight years old, rather than wait until a plan were 10 years old.
Marc Brown, California Housing Law Project, (916) 739-6293
Daniel Carrigg, League of California Cities, (916) 658-8222.
Sande George, California Chapter, American Planning Association, (916) 443-5301.
Julie Snyder, Housing California, (916) 447-0531.
Sandra Spelliscy, Planning and Conservation League, (916) 444-8726.
Assemblywoman Patricia Wiggins, (916) 319-2007.
California Housing Law Project: www.housingadvocates.org
California Chapter, American Planning Association: www.calapa.org
Planning and Conservation League: www.pcl.org/LEG/leg.html
State of California: www.leginfo.ca.gov