BILL ANALYSIS
SB 303
SENATE COMMITTEE ON ENVIRONMENTAL QUALITY
Senator S. Joseph Simitian, Chairman
2007-2008 Regular Session
BILL NO: SB 303
AUTHOR: Ducheny
AMENDED: April 18, 2007
FISCAL: Yes HEARING DATE: April 23, 2007
URGENCY: No CONSULTANT: Randy Pestor
SUBJECT : PLANNING, CEQA, AND ENVIRONMENTAL ISSUES
SUMMARY :
Existing law :
1) Under the California Constitution, authorizes a city or
county to "make and enforce within its limits all local,
police, sanitary, and other ordinances and regulations not
in conflict with general law."
2) Under Planning and Zoning Law, requires cities and counties
to adopt a general plan that includes seven mandated
elements (land use, circulation, housing, conservation,
open space, noise, safety), and creates special
requirements for housing elements. It also requires cities
and counties to adopt zoning ordinances regulating, for
example, the use of buildings, structures, and land.
3) Under the California Environmental Quality Act (CEQA),
requires lead agencies with the principal responsibility
for carrying out or approving a proposed discretionary
project to prepare a negative declaration, mitigated
declaration, or environmental impact report (EIR) for this
action, unless the project is exempt from CEQA (CEQA
includes various statutory exemptions, as well as
categorical exemptions in the CEQA guidelines).
4) Under the Permit Streamlining Act (PSA), requires a lead
agency for a development project to approve or disapprove a
project within specified time periods (for example, 180
days from the date the lead agency certifies an EIR (except
90 days for a very low or low income housing project under
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certain conditions), 60 days from the date of adopting a
negative declaration or determining that a project is
exempt from CEQA).
This bill :
1) Under Planning and Zoning Law, requires the general plan to
encompass a 20-year planning period (except for the current
requirement to update the housing element to cover a 5-year
period) and requires each general plan element to be
updated as necessary not less than every 10 years. Under
Planning and Zoning Law requirements for the housing
element, this bill:
a) Requires the housing needs quantified objectives to
"establish," rather than "estimate," the maximum number
of housing units to be constructed and rehabilitated for
certain income categories over a 10-year period, rather
than the current 5-year period requirement.
(65583(b)(2)).
b) Requires a city council or board of supervisors to
designate in its housing element sufficient land and to
zone sites for residential use to accommodate the
jurisdiction's 10-year housing need. The obligation to
designate sites for the region's 10-year lower income
household housing need must be satisfied to allow the
minimum number of units per acre, as specified. The
local government must prepare an EIR in connection with
the designation of sites. (65583.3(a)).
c) Requires actions to be taken to make sites available
with appropriate zoning during the "first year of the
planning period" (rather than for the housing element
planning period) for the jurisdiction's share of the
regional housing need for each income level.
(65583(c)(1)(A)).
d) Requires the housing element program to identify
sites that "shall be made available" (rather than "can
be developed") during the "first year of the planning
period" (rather than the housing element planning
period). 65583(c)(1)(C). The program must also specify
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the date by which each action in the program must be
implemented. (65583(c)(7)).
e) Requires sites to be identified for lower income
households that meet certain densities (rather than
current provisions where these densities are "deemed
appropriate" and must be based upon an analysis of such
factors as market demand and financial feasibility).
This bill also requires that these sites are not planned
for nonresidential development or development with
housing for non-lower income households. 65583.2(c)(2).
f) Requires the rental housing "by right" provisions to
apply "during the first year of the planning period"
(rather than during the housing element planning
period). (65583.2(h)). "By right" means the local
agency's review of a residential use cannot require a
discretionary review or approval that constitutes a
project under CEQA.
g) Prohibits a zone change for residential use without
the consent of the project applicant, except by a 4/5
vote of the city council or board of supervisors when a
complete application has been submitted to develop a
project and the project is consistent with zoning
applicable to the site. An abstention cannot count as
an affirmative vote. (65583(c)).
h) Requires a court, if the court finds that a local
government failed to comply with the requirements of
65583(a), to retain jurisdiction of an action and issue
an order requiring compliance with 65583(a) within 120
days, or a lesser period if the court determines that a
lesser period is appropriate. (65583(d)).
i) Requires a city or county, within one year after the
date of revising the housing element, to submit written
documentation to the Department of Housing and Community
Development (HCD) regarding actions to comply with the
one-year zoning requirements in this bill, and HCD must
review the submittal and report its written findings to
the jurisdiction within 30 days. If HCD finds that the
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jurisdiction failed to substantially comply with the
one-year zoning requirement, then HCD must notify the
jurisdiction that its housing element does not comply
with the requirements. Legislative intent declares that
these findings be given substantial deference and weight
by courts regarding noncompliance with housing element
requirements. (65585).
j) Changes deadlines for revising housing elements, with
unspecified dates, by requiring the five-year update to
include amendments to ensure sites are designated and
zoned to accommodate the jurisdiction's 10-year housing
need. (65588).
aa) Provides that all deadlines in the housing element
law are mandatory and not directory. (65588.2).
bb) Provides that nothing in the housing element
requirements can be interpreted to affect current law
with respect to planning, use, or development of areas
outside designated and zoned housing sites, or to
establish any presumption regarding the appropriate
designation or use of those sites. (65588.3).
cc) Requires any approval in connection with a project
that is consistent with the zoning designation, or
identified in an inventory or subject to the "by right"
provisions, is subject to the Permit Streamlining Act.
(65583.3(b)).
2) Requires a zoning ordinance to be consistent with a city or
county general plan if certain conditions are met, such as
the zoning ordinance "allows development at the density
range without the need for any additional land use approval
that is legislative or quasi-legislative in nature."
(65860(a)(3)).
3) Authorizes a property owner to bring an action requiring
that zoning its property be made consistent with the
general plan. (65860(b)).
4) Requires zoning consistency requirements to apply to
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charter cities (Los Angeles is the only charter city
subject to the consistency requirement under current law).
(65860(c)).
5) Provides legislative intent that the Court of Appeal
opinion in Mira Development Corporation of San Diego v.
City of San Diego (1988) 205 Cal.App.3d 1201, is
inconsistent with the Legislature's intent that: a) the
phrase "health and safety" be narrowly construed, and b)
substantial evidence in support of a health and safety
finding be of ponderable legal significance, reasonable in
nature, credible, and of solid value in light of all of the
evidence in the record. (SEC. 12).
COMMENTS :
1) Purpose of Bill . According to the author, the main reason
for a lack of housing is a local government planning
process that is broken, and this bill "would require every
California city's general plan to encompass a planning and
projection period of 20 years and set aside enough land
with appropriate zoning to supply housing at all income
levels for the projected population growth."
2) Zoning requirements . SB 303 requires local agencies to
designate and zone sites to accommodate housing for ten
years (although there is a conflict in this bill regarding
a 10-year or 5-year period on page 16, lines 9 to 19).
This bill also requires a local agency to zone sites for
residential uses within one year, rather than for the
housing element planning period, and requires the zoning
consistency under current law to apply to charter cities.
Requiring zoning to occur within one year is likely
infeasible, and may exceed planning resources, for many
local governments.
This bill should provide for the zoning requirement to: a) be
done over the 5-year housing element period to enable
phasing; and b) provide a shorter period for subsequent
housing element updates, such as 3 years, while also
allowing for phasing of development in those areas.
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Charter cities that have not been subject to the requirement
for zoning consistency and are likely to have many infill
opportunities, should be given additional time during the
first five-year planning period to meet the zoning
requirement
Other provisions of SB 303 relating to this one-year period,
such as "making sites available," application of "by right"
requirements, and similar references, need to be consistent
with the above changes to the zoning provisions.
Finally, it would be inappropriate to enable property owners
to bring actions requiring zoning on their property to be
made consistent with a general plan, as provided under this
bill, given the above time constraints.
3) Location of housing . Assuring adequate housing for
California's future is a worthy goal; the issue is where
should such housing be located and how should the need for
housing be balanced against other worthwhile goals (for
example, preservation of land for agriculture, an important
element of California's economy, and open space)?
This bill should be amended to specify that, in making the
designations required by SB 303, local agencies must give
preference to locating housing on infill, redevelopment,
and brownfield sites before looking to open space and
greenfield sites as a source of land to satisfy the state's
projected housing needs. Moreover, it should be these
preferred locations for housing that receive the
preferential treatment contemplated by SB 303, not
greenfield sites.
4) Supermajority voting requirement . SB 303 prohibits a zone
change for residential use without the consent of the
project applicant, except by a 4/5 vote of the city council
or board of supervisors when a complete application has
been submitted to develop a project and the project is
consistent with zoning applicable to the site. SB 303
further requires that any zone change can only be done
after making findings that are very difficult to make. An
abstention cannot count as an affirmative vote.
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This provision is problematic and should be stricken because:
a) there is no known requirement for a 4/5 vote in Planning
and Zoning Law and this may also be interpreted to be
undemocratic; b) the project applicant is subject to a
majority vote; c) it would not be possible to rezone the
property for subsequent housing element updates; and d) a
local official can be legally disqualified within the
meaning of the Political Reform Act, which may be an
additional hurdle to change zoning.
5) Financing . Updating a general plan every 10 years involves
considerable expense for local agencies. For example, the
League of California Cities estimates that the cost of this
process is likely to exceed $300 million per cycle in
today's dollars. SB 303 proposes that this cost be
recouped through fees imposed at the local level, which
require their own costly process to document the requisite
relationship between the amount of the fee and the cost of
the service being provided.
If the purpose of this bill is to promote the construction of
low and moderate income housing (or at least not to further
deepen affordability challenges), the financing mechanism
should be structured so it is not passed through to lower
income housing purchasers. One mechanism is to impose the
fee on those that generate the need for additional housing,
similar to the approach upheld in Commercial Builders of
Northern California v. City of Sacramento (9th Cir. 1991)
941 F.2d 872, which conditioned development of
non-residential property on payment of a fee to offset the
costs of providing affordable housing to those who will
work there. HCD could be tasked with documenting the
required nexus between non-residential development and
housing demand to support this fee (which would cost less
and be more efficient than having all local jurisdictions
undertake such studies).
Another funding mechanism would be parallel to the Strong
Motion Instrumentation and Seismic Hazards Mapping
programs, where cities and counties collect a fee from each
building permit applicant to fund programs for installing
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strong motion instruments on structures and to develop
hazard mapping.
6) The general plan as an integrated and comprehensive
document . SB 303 creates a series of stringent protections
for land designated for housing. A general plan, however,
represents a comprehensive vision for the community,
including for example, the value of preserving some lands
for conservation and open space. The various protections
SB 303 affords for lands designated for housing in an
agencies' planning documents should be also extended to
lands designated for conservation, open space, and
agriculture, and related uses.
To ensure that there is parity between the general plan
housing element requirement and those for a local agency's
conservation and open space elements, SB 303 would need
several amendments, including: a) a requirement to update
conservation and open space elements every 5 years; b) a
program to identify the regional need for open space,
parks, agriculture, and similar uses; c) a requirement to
analyze open space and park needs for lower income
households, and to provide open spaces and parks for these
households; and d) a requirement to identify policies and
incentives that promote and protect open space, parks,
agriculture and similar uses. If requirements remain in
this bill for supermajority voting, residential uses
without any further legislative or quasi-legislative
action, and increased state oversight, then comparable
amendments for conservation and open space actions would
also be needed. If a financing provision is added to this
bill, then a similar funding mechanism would need to be
provided for conservation and open space related
requirements.
7) Consistency Requirements . SB 303 provides that a zoning
ordinance is consistent with a general plan in the case of
residential uses if the zoning ordinance "allows
development at the density range without the need for any
additional land use approval that is legislative or
quasi-legislative in nature." (65860(a)(3)). This is
inconsistent with current law where zoning is consistent
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with the general plan when "various land uses authorized by
the [zoning] ordinance are compatible with the objectives,
policies, general land uses, and programs specified in the
plan" (65860(a)), and would thereby preclude a local
government from considering policies relating to, for
example, certain environmental and infrastructure issues.
This is a significant conflict with current law and should be
stricken.
8) Limiting land available for workforce housing . Section
65583.2(c)(2)'s requirement that "sites identified to
accommodate housing for lower income households shall be
sites that are not already planned for nonresidential
development or development with housing for non-lower
income households . . ." creates a significant impediment
to zoning for affordable housing by taking sites that are
planned for non-residential and market-rate housing out of
consideration for designation as workforce housing. This
seems fundamentally inconsistent with state policies
promoting affordable housing for California's workforce.
It also appears to create a policy that segregates
workforce housing from other forms of housing and
development.
9) Increased reporting and oversight functions . Current law
requires local governments to provide an annual report to
the Office of Planning and Research (OPR) and HCD regarding
certain general plan matters, including a requirement for a
housing element portion of this annual report (Government
Code 65400). SB 303 adds additional reporting
requirements that must be provided to HCD one year after
revision of the housing element (Government Code 65585).
HCD must review the report within 30 days, receive written
comments from other agencies or persons, and determine
whether the local government has substantially complied
with certain housing element requirements.
Because the one year zoning requirements under this bill are
infeasible (see Comment #2), any reporting requirement
should be at a later date. There should also be an
opportunity for the local government to respond to HCD's
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findings.
10)Affecting CEQA . SB 303 limits application of CEQA by, for
example: a) requiring zoning to allow development in the
specified density range "without the need for any
additional land use approval that is legislative or
quasi-legislative in nature;" b) requiring changes to be
subject to written findings pursuant to 65589(d) or (j);
c) requiring a supermajority 4/5 vote to change zoning; d)
limiting the holding in the Mira case (see Comment #12);
and e) the limited one-year zoning requirement.
To ensure that application of CEQA to the planning process is
not limited or affected, provisions such as those cited
above, must be stricken (and in the case of the one-year
zoning requirement, extending that period as provided under
Comment #2).
11)Permit Streamling Act amendments . Time limits in the PSA
relate to determining the completeness of applications and
reaching decisions on development projects. Time limits
have also been enacted under CEQA for completing
environmental documents and executing contracts for their
preparation. PSA deadlines do not apply to certain
actions, such as legislative actions (adoption or amendment
of a general plan or zoning ordinance) legislative actions
that are combined with adjudicatory permits, compliance
with federal requirements with longer time schedules, and
certain other actions (administrative appeals, applications
to appropriate water).
SB 303 requires any approval in connection with a project that
is consistent with the site designation and zoning to be
subject to the PSA, as well as zoning sites during the
bill's one-year period and "by right" zoned sites process.
This change is inappropriate because: a) it has been held
in Landi v. County of Monterey , 139 Cal.App.3d 934, 937
(1983), that the PSA was not meant to impose a rigorous
timetable on a local government's exercise of its
policy-making "legislative" powers, but only the exercise
of its "adjudicatory" powers; and b) other actions involved
in the amendment are initiated by the local agency, not by
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an applicant.
Therefore, the PSA provisions in this bill should be stricken.
12)Overturning Mira . Section 12 of the bill appears to be an
effort to overturn at least a portion of the court's
holdings in Mira Development Corporation of San Diego v.
City of San Diego (1988, reported at 205 Cal.App.3d 1201),
a nearly 20-year old case that upheld a local agency's
denial of a rezoning application because of school
overcrowding concerns. This bill apparently wants to
prevent such decisions in the future by: a) expressing
legislative intent that the phrase "health and safety"
should be construed narrowly, and b) creating an uncodified
standard for substantial evidence when making health and
safety findings ("substantial evidence in support of a
health and safety finding be of ponderable legal
significance, reasonable in nature, credible, and of solid
value in light of all of the evidence in the record").
There are problems with this provision because:
a) Case law that says that legislative expressions of
the intent of an earlier legislative act (in this case,
the 1982 Legislature's act in adopting Government Code
section 65589.5) are not binding on the courts. See,
for example, Parnell v. Adventist Health System/West,
(2005) 35 Cal. 4th 595 (citing Eu v. Chacon (1976)), 16
Cal.3d 465; Del Costello v. State of California (1982)
135 Cal.App.3d 887, 893 (finding the Legislature has no
authority to interpret a statute or declare what it did
mean; instead it must define the meaning of statute by
present statutory enactment). This is consistent with
the California Constitution's requirement that a statute
may not be amended unless the section is re-enacted as
amended. See Cal. Const. art. 4, 8. If the bill's
proponents want to clarify the standards for health and
safety and substantial evidence for purposes of
Government Code section 65589.5, they should do so
explicitly in that section's definitions section
(subdivision (h)).
b) It is not clear what this new standard of substantial
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evidence means. Some courts have already used the
standard articulated in the bill as a definition of
substantial evidence for purposes of administrative
mandamus and CEQA review. See American Canyon Community
United for Responsible Growth (2006) 145 Cal.App.4th
1062, 1069-70 ("Substantial evidence is evidence of
ponderable legal significance, reasonable in nature,
credible, and of solid value, evidence that a reasonable
mind might accept as adequate to support a
conclusion."). A legislative declaration that such a
definition of substantial evidence only applies with
respect to health and safety findings creates the
inference that such a definition is not a valid
definition of substantial evidence generally. Is this
the argument that the bill's sponsors want to make?
Even if they do, saying so in such an indirect fashion
and in an uncodified section is likely to invite
litigation.
c) Most importantly, there is also the policy issue of
whether the Legislature should further erode local
agencies' consideration of health and safety factors,
including school overcrowding, in determining whether to
rezone property (the situation in Mira ). By declaring
that Mira "is inconsistent with the Legislature's
intent," the Legislature would further limit local
government's ability to direct where development should
occur in a jurisdiction.
To ensure that project impacts are properly mitigated, this
provision should be stricken (as also noted under
Comment #10).
13)Where's the state plan ? AB 857 (Wiggins/Sher) Chapter
1016, Statutes of 2002, requires the Governor to annually
submit (with the Budget) a proposed five-year
infrastructure plan. The plan must include criteria and
priorities used to identify and select the infrastructure
proposed for funding and must specify sources of funding,
an evaluation of the impact of new state debt on the
state's existing overall debt position, and recommend
specific projects for funding. These state planning
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priorities are intended to promote equity, strengthen the
economy, protect the environment, and promote public health
and safety by: 1) promoting infill development and equity,
2) protecting environmental and agricultural resources, and
3) encouraging efficient development patterns.
Current law requires the Governor to prepare an Environmental
Goals and Policy Report (EGPR) that is an overview of
"state growth and development and a statement of approved
state environmental goals and objectives, including those
directed to land use, population growth and distribution,
development, the conservation of natural resources, and air
and water quality." The EGPR must also serve as a guide
for state expenditures.
Although the EGPR must be revised, updated, and transmitted by
the Governor to the Legislature every four years, the EGPR
has not been revised since 1978 (under Governor Jerry
Brown) - almost a 30-year old plan.
Local governments have long been concerned that the state
consistently adds new local planning requirements, yet
without an updated EGPR sends mixed signals to local
governments by, for example, its uncoordinated
transportation, prison, higher education, farmland
protection, and housing policies and actions.
Is it time to focus on ensuring that the state implements AB
857 planning priorities and has an updated EGPR before
enacting major changes to housing element requirements?
SOURCE : California Major Builders Council
SUPPORT : Access to Independence, AFSCME, Allied Housing,
Alvarado & Associates, LLC, Asian Law Alliance,
Asian Pacific Islander Small Business Program,
Barratt American, Inc., Bethel Missionary
Baptist Church, Beyond Shelter, Brehm
Communities, BRIDEGE Housing, California
Association of Realtors, California Black
Chamber Foundation, California Building
Industry Association, California Business
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Roundtable, California Chamber of Commerce,
California Coalition for Rural Housing,
California Federation of Teachers, Council for
Environmental and Economic Balance, California
Council of Churches Impact, California Housing
Consortium, California State Firefighters
Association, Calistoga Affordable Housing,
Inc., Cal-Nevada Conference of Operating
Engineers, Coalition of Women from Asia and the
Middle East (CWAME), Communities Actively
Living Independent & Free, Congress of
California Seniors, Corman Leigh Communities,
Delco Builders & Developers, Father Joe's
Villages, HomeAid Northern California, Housing
California, Loaves and Fishes, Los Angeles
Conservation Corps, Martha's Village & Kitchen,
Inc., National AIDS Foundation, Josue Homes,
Neighborhood Housing Services of Orange County,
Peace Officers Research Association of
California, Ponderosa Homes II Inc., Sacred
Heart Parish, Saint John Missionary Baptist
Association, Samaritan Reach, San Diego Housing
Federation, San Diego Regional Chamber of
Commerce, San Diego Urban Economic Corporation,
Self Help for the Elderly, Signature
Properties, Solari Enterprises, Inc., St.
Vincent de Paul Village, The John Stewart
Company, Toussaint Youth Villages - Toussaint
Teen Center, Tri-City Homeless Coalition,
United California Mortgage and Financial
Services, West Bay Housing Corporation
SUPPORT IF AMENDED
Planning and Conservation League
OPPOSITION : Cities: Alhambra, Antioch, Arroyo Grande,
Barstow, Bell, Bellflower, Belmont, Beverly
Hills, Bishop, Brea, Buena Park, Burbank,
Burlingame, Campbell, Carmel by the Sea,
Cerritos, Chino, Chino Hills, Claremont,
Clovis, Colton, Commerce, Compton, Daly City,
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Diamond Bar, Emeryville, Fairfield, Fontana,
Fortuna, Garden Grove, Goleta, Hermosa Beach,
Hesperia, Highland, Huntington Park, Inglewood,
La Habra, La Mirada, La Quinta, Lafayette,
Laguna Beach, Laguna Hills, Lakewood,
Lancaster, Latino Caucus, League of CA Cities,
Livermore, Long Beach, Marysville, Monrovia,
Montclair, Monte Serano, Moorpark, Moreno
Valley, Mt. Shasta, Murrieta, Norwalk, Ontario,
Palo Alto, Paramount, Pasadena, Pico Rivera,
Poway, Rancho Cucamonga, Rancho Palos Verdes,
Redlands, Redondo Beach, Rohnert Park City
Council, Roseville, Sacramento, San Bernardino,
San Buenaventura, San Mateo, San Rafael, Santa
Clara, Santa Fe Springs, Santa Maria, Santa
Rosa, Scotts Valley, Seaside, Sebastopol,
Signal Hill, Solvang, South San Francisco,
Sunnyvale, Temple City, Torrance, Tustin,
Vacaville, Ventura, Victorville, Walnut Creek,
Watsonville, Westlake Village, Windsor,
Whittier
American Planning Association, California League of
Conservation Voters, California State
Association of Counties (concerns), Contra
Costa County, Environment California, League of
California Cities, Monterey County Mayors'
Association, Natural Resources Defense Council,
Regional Council of Rural Counties, Sierra Club
California