BILL ANALYSIS Ó
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|SENATE RULES COMMITTEE | AB 504|
|Office of Senate Floor Analyses | |
|(916) 651-1520 Fax: (916) | |
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THIRD READING
Bill No: AB 504
Author: Gonzalez (D)
Amended: 9/4/15 in Senate
Vote: 21
SENATE GOVERNANCE & FIN. COMMITTEE: 5-2, 7/15/15
AYES: Hertzberg, Beall, Hernandez, Lara, Pavley
NOES: Nguyen, Moorlach
ASSEMBLY FLOOR: 53-27, 5/14/15 - See last page for vote
SUBJECT: Local planning
SOURCE: Author
DIGEST: This bill allows cities to delegate ministerial
planning functions to nonprofit organizations, subject to appeal
to the city's legislative body, and requires cities to retain
other planning functions.
Senate Floor Amendments of 9/4/15 state that the appeal
authorized by this bill is in addition to the appeals of
decisions made by unelected bodies authorized under the
California Environmental Quality Act (CEQA); remove references
to CEQA from the definition of "planning function"; and state
that nothing in this bill shall affect the requirements of CEQA.
ANALYSIS:
Existing law:
1) Allows a city, under the California Constitution, to "make
and enforce within its limits, all local, police, sanitary
and other ordinances and regulations not in conflict with
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general laws, known as the police power of cities."
2) Requires every county and city to adopt a general plan that
sets out planned uses for all of the area covered by the
plan. Cities' and counties' major land use
decisions-including development permitting-must be consistent
with their general plans. In this way, the general plan is a
blueprint for future development. Local agencies may also
adopt specific plans and community plans that provide for the
systematic implementation of a general plan in a particular
area.
3) Establishes a planning agency in each city and county, which
may be a separate planning commission, administrative body,
or the legislative body of the city or county itself.
4) Establishes the Nonprofit Corporation Law in the
Corporations Code, and allows a nonprofit public benefit
corporation to be formed under the law for any public or
charitable purposes, as specified.
5) Requires, pursuant to CEQA, local agencies to analyze and
mitigate the impact of certain projects on the human
environment.
6) Allows decisions regarding the applicability of CEQA to a
project and the certification of environmental documents made
by non-elected officials on behalf of a local agency to be
appealed to the legislative body of the local agency.
This bill:
1) Allows all cities, including charter cities, to delegate
ministerial planning functions, as defined, to a nonprofit
public benefit corporation (nonprofit).
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2) Requires cities to retain all other planning functions.
3) Defines "planning function" to include many specific actions
that local governments take, such as amending general plans,
issuing development or other land use permits, and issuing
subdivision maps.
4) Defines "ministerial" as a plain and mandatory duty
involving the execution of a set task that is to be performed
without the exercise of discretion.
5) Requires a nonprofit that performs planning functions to
comply with all applicable state and local laws, including
the Public Records Act, the Brown Act, the city's charter,
local ordinances, and any contracting rules.
6) Requires the nonprofit to submit a report annually,
beginning on July 1, 2016, that describes the planning
functions it has undertaken in the previous year and how
those functions are consistent with applicable state and
local laws.
7) Requires the legislative body of the city to review and
approve the report produced by the nonprofit at a noticed
public hearing.
8) Allows, in addition to those appeals of decisions by
non-elected officials authorized by CEQA, a planning function
approved by the nonprofit to be appealed to the legislative
body of the city if both the following occur:
a) The planning function results in the approval of a
project that is not exempt from CEQA, and
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b) The planning function pertains to a project that
includes any of the following:
i) 50 or more residential units,
ii) 50 or more hotel rooms, or
iii) 25,000 or more square feet of commercial space.
9) Declares that authorizing a city to delegate planning
responsibilities to be an issue of statewide concern and
states that it applies to all cities in the state, including
charter cities.
10)States that nothing in this bill shall affect the
requirements of CEQA.
Background
Delegation of Police Power. The California Constitution allows
a city to "make and enforce within its limits, all local,
police, sanitary and other ordinances and regulations not in
conflict with general laws, known as the police power of
cities." It is from this fundamental power that local
governments derive their authority to regulate land through
planning, zoning, and building ordinances, thereby protecting
public health, safety and welfare.
The courts have found that a city may contract with other
entities, such as a nonprofit public benefit corporation, to
carry out governmental functions. However, there are limits to
this ability. In particular, a city cannot wholly contract away
all authority over the exercise of its police power-it must
retain ultimate control over the process. Since land use
regulations involve the exercise of police power, these limits
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on contracting away police powers apply to a city's land use
regulatory authority.
Civic San Diego. To date, the City of San Diego is the only
city in California that has delegated some land use regulatory
authority to a nonprofit corporation. San Diego formed the
Centre City Development Corporation (CCDC) in 1975 and the
Southeastern Economic Development Corporation (SEDC) in 1980, to
provide economic development services to the Centre City,
Marina, and Gaslamp neighborhoods. The City, over time,
delegated some land use approval functions to both CCDC and SEDC
in those areas. This delegation included the ability to make
some discretionary decisions, such as issuing some conditional
use permits or site development permits.
In 2012, the City renamed CCDC to Civic San Diego (CivicSD) and
merged SEDC into it. In recent years, CivicSD has been carrying
out much of the winding down of the City of San Diego's former
redevelopment agency and has recently expressed an interest in
expanding its scope beyond its current role into the
neighborhoods of Encanto and City Heights.
As a nonprofit, CivicSD is not a city department, and its
employees are not city employees. However, the City of San
Diego approves CivicSD's budget, appoints the President and the
Board of Directors, sets the terms of the agreement that governs
its operations, and passes the ordinances that direct the
decisions that CivicSD can make. In addition, the Attorney
General has opined that nonprofit organizations that perform
activities on behalf of a local government may also be subject
to the same laws that apply the local government itself. These
laws include the Ralph M. Brown Act (Brown Act), which requires
that the meetings of local agencies' legislative bodies be open
and public. San Diego's City Attorney concurs that this applies
to CivicSD when it acts on behalf of the City.
Land Use Regulation in San Diego. San Diego's municipal code
determines the review process that projects must go through in
order to be permitted. The code classifies land use permitting
decisions into one of five "processes." Approval of projects
that strictly meet standards set out in the code (Process 1) are
reviewed at the staff level, while decisions that require more
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discretion (such as general plan amendments) are considered by
higher-level officials, such as the City Council (Process 5).
The specific actions that fall under Processes 1 through 5 are
set by the City's municipal code, and how a project is
classified can vary in different parts of the City. As a
result, CivicSD can approve some large projects, such as hotels,
pursuant to Process 1-by issuing a "Centre City Development
Permit" (CCDP)-because the projects meet the requirements set
out in the municipal code sections that apply to the Centre City
area. Those decisions cannot be appealed to the CivicSD board
or to the City. The CivicSD board conducts "design review" of
CCDP-permitted projects above a certain size. This review is
limited to the project's aesthetics and architectural details.
Outside of CivicSD's area, an identical project could be subject
to a different process.
Some local organizations want to ensure that more projects
within CivicSD's jurisdiction are appealable to the City
Council.
Comments
1)Purpose of this bill. AB 504 codifies case law in order to
clarify the legal status of nonprofit entities that perform
planning functions for cities in California. Under current
law, these nonprofit entities can make decisions with
significant effects on local communities and entire cities
without the ability of citizens to appeal those decisions to
their elected leaders. Of particular concern is CivicSD's
ability to permit large developments by issuing CCDPs
administratively, without the ability to appeal the decision
or review the environmental and community impacts of the
project. This amounts to an improper delegation of local
government's police powers and minimal opportunity for public
input. These concerns are magnified by potential plans to
expand CivicSD's jurisdiction to other parts of the city. By
prohibiting nonprofit organizations that perform planning
functions from making decisions that require discretion, AB
504 ensures that cities retain the required control over the
land use permitting decisions that nonprofit entities make on
their behalf and prevents legal challenges to the status of
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those entities. In addition, this bill ensures that decisions
by CivicSD on large projects with significant city-wide
impacts are appealable to the city council, enhancing the
transparency of the permitting process and allowing citizens
to provide input on major development decisions.
2)Unnecessary economic harm. CivicSD has been successfully
promoting development of blighted areas in San Diego since
1975. On behalf of the City of San Diego, CivicSD has been
involved in the creation of nearly 7,000 affordable housing
units and brought in large amounts of private capital to boost
the public's investment in the area. With the end of
redevelopment, CivicSD's ability to leverage private funds and
encourage development in the city's urban communities is more
important than ever. The City of San Diego already retains
extensive control over CivicSD because it appoints key
positions, oversees the budget, and sets the terms of the
operating agreement. AB 504 adds unnecessary layers of
bureaucracy that would jeopardize CivicSD's ability to process
permit applications. While some projects could withstand the
additional time and cost of the additional appeals process,
others will fail. This bill also severely limits the types of
permits CivicSD can issue by prohibiting it from taking
actions that require any discretion. As a result, CivicSD
could not approve community gardens, live entertainment, or
other community-building activities within its area. This
bill will undo much of the progress made to date on attracting
economic development to the parts of San Diego that need it
most and will make it more difficult to meet the City's goals
for affordable housing.
3)Lawyer up. On April 10, 2015, the San Diego County Building &
Construction Trades Council, AFL-CIO, and Murtaza Baxamusa,
Ph.D., a Director on the CivicSD Board of Directors filed a
petition in the Superior Court of California, County of San
Diego against CivicSD and the City of San Diego. The lawsuit
asks the court to rule on a number of topics related to the
provisions of this bill, including (a) whether the City
improperly delegated authority to CivicSD without appropriate
oversight, and (b) whether decisions made by Civic San Diego
must be allowed to be appealed to the City Council.
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FISCAL EFFECT: Appropriation: No Fiscal
Com.:NoLocal: No
SUPPORT: (Verified9/4/15)
California Labor Federation
California Professional Firefighters
California State Association of Electrical Workers
California State Pipe Trades Council
Center on Policy Initiatives
City Heights Community Development Corporation
City of San Diego Council President Pro Tem Marti Emerald
Environmental Health Coalition
Honorable Juan Vargas, Member of Congress
Interfaith Center for Worker Justice of San Diego County
International Brotherhood of Electrical Workers Local #569
Plumbers and Steamfitters Local Union #230
Roofers, Waterproofers Local Union # 45
San Diego and Imperial Counties Labor Council
San Diego County Building and Construction Trades Council
State Building and Trades Council
Todd Gloria, City of San Diego City Council, District Three
UNITE HERE Local #30
United Food & Commercial Workers Union Local 135
United Taxi Workers of San Diego
Western States Council of Sheet Metal Workers
OPPOSITION: (Verified9/4/15)
Alliance for Habitat Conservation
Associated Builders and Contractors, San Diego
AVRP Studios, Inc.
California Restaurant Association
Building Industry Association of San Diego County
Chelsea Investment Corporation
City of Hope International
City of San Diego
Civic Link Strategies
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Cortez Hill Active Residents Group
Downtown Community Planning Council
Downtown San Diego Partnership
East Village Association
East Village Residence Group
Encanto Neighborhood Community Planning Group
Muhammad Mosque #8, San Diego
National Black Contractors Association
San Diego County Taxpayers Association
San Diego Downtown Residents Group
San Diego Regional Chamber of Commerce
St. Stephen's Cathedral Church of God in Christ
United Missionary Baptist Church
Wakeland Housing and Development Corporation
ASSEMBLY FLOOR: 53-27, 5/14/15
AYES: Alejo, Bloom, Bonilla, Bonta, Brown, Burke, Calderon,
Campos, Chau, Chiu, Chu, Cooley, Cooper, Dababneh, Daly, Dodd,
Eggman, Frazier, Cristina Garcia, Eduardo Garcia, Gatto,
Gipson, Gomez, Gonzalez, Gordon, Gray, Roger Hernández,
Holden, Irwin, Jones-Sawyer, Lackey, Levine, Lopez, Low,
McCarty, Medina, Mullin, Nazarian, O'Donnell, Perea, Quirk,
Rendon, Ridley-Thomas, Rodriguez, Salas, Santiago, Mark Stone,
Thurmond, Ting, Weber, Williams, Wood, Atkins
NOES: Achadjian, Travis Allen, Baker, Bigelow, Brough, Chang,
Chávez, Dahle, Beth Gaines, Gallagher, Grove, Hadley, Harper,
Jones, Kim, Linder, Maienschein, Mathis, Mayes, Melendez,
Obernolte, Olsen, Patterson, Steinorth, Wagner, Waldron, Wilk
Prepared by:Anton Favorini-Csorba / GOV. & F. / (916) 651-4119
9/8/15 14:38:33
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