BILL ANALYSIS Ó
SENATE COMMITTEE ON GOVERNANCE AND FINANCE
Senator Robert M. Hertzberg, Chair
2015 - 2016 Regular
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|Bill No: |AB 644 |Hearing |6/10/15 |
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|Author: |Wood |Tax Levy: |No |
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|Version: |4/13/15 |Fiscal: |No |
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|Consultant|Favorini-Csorba |
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FIRE HAZARDS AND LAND USE PLANNING
Exempts counties from making certain fire-related findings on
subdivision approvals if the subdivided land is identified in
the open space element of the county's general plan.
Background and Existing Law
The California Department of Forestry and Fire Protection
(CALFIRE) provides wildland fire protection on non-federal lands
outside cities. To meet this duty, the State Board of Forestry
and Fire Protection designates the State Responsibility Area
(SRA) every five years. Within SRA lands, the Director of
CALFIRE designates fire hazard severity zones. SRA landowners
must follow specified fire prevention practices. After the 1991
Oakland-Berkeley fire storm, the Legislature required CALFIRE to
designate very high fire hazard severity zones. Landowners in
these areas must follow specified fire prevention practices (AB
337, Bates, 1992).
In the aftermath of annual wildfires, state and local officials
have considered options to reduce the loss of lives and property
and address high costs of local fire protection agencies when
fighting wildfires in developed areas. One way to avoid or
mitigate these losses and costs is to use land use planning to
guide decisions about future development.
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Every county and city must adopt a general plan with seven
mandatory elements: land use, circulation, housing,
conservation, open space, noise, and safety. Cities' and
counties' major land use decisions-subdivisions, zoning, public
works projects, use permits-must be consistent with their
general plans.
The Subdivision Map Act regulates how local officials approve
the conversion of larger parcels into marketable lots. Major
subdivisions-more than four lots-require a discretionary
tentative map and a ministerial final map. Minor
subdivisions-four or fewer lots, called "lot splits"-usually
require a single, discretionary parcel map. In some
communities, minor subdivisions require a tentative parcel map
and a final parcel map, similar to major subdivisions.
All local land use decisions, including subdivision, must be
consistent with the city or county's general plan. If a
subdivision is not consistent with the local general plan, or if
a subdivision's design or improvement is not consistent with the
local general plan, the Map Act requires city councils and
county boards of supervisors to deny a proposed tentative map or
proposed parcel map. If a subdivision may likely cause
environment damage or public health problems, then local
officials must also deny the subdivision.
SB 1241 (Kehoe, 2012) requires city councils and county boards
of supervisors to make three findings, supported by substantial
evidence, before approving a tentative map or parcel map:
The design and location of each lot in the subdivision,
and the subdivision as a whole, are consistent with the
State Board of Forestry and Fire Protection's applicable
regulations.
A finding supported by substantial evidence that
structural fire protection and suppression services will be
available for the subdivision through any of the following
entities:
o A county, city, special district, or political
subdivision of the state, or another entity organized
solely to provide fire protection services that is
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monitored and funded by a county or other public
agency.
o The Department of Forestry and Fire Protection
by contract.
Ingress and egress for the subdivision meets regulations
regarding road standards for fire equipment access adopted
by the State Board of Forestry and Fire Protection pursuant
to a specified statute.
SB 1241 (Kehoe) was intended to improve land use planning to
minimize fire risk posed by new developments. In doing so, it
placed additional burden on counties. Some counties want to
ease that burden and smooth the process for some subdivision
proposals.
Proposed Law
Assembly Bill 644 exempts counties from the requirement enacted
by SB 1241 that counties must make findings for certain
tentative maps or parcel maps. Specifically, in order to be
exempt, AB 644 requires that the tentative maps or parcel maps
must both:
Subdivide land identified in the open space element of
the county's general plan for the management of resources
(such as forest land, rangeland, and agricultural land).
Be consistent with the open space purpose in the general
plan.
The exemption in AB 644 does not apply to:
Tentative maps or parcel maps that result in parcels
that are smaller than 40 acres, unless those parcels are
subject to a binding restriction that prohibits development
of buildings or structures on the land.
Future approvals of tentative maps or parcel maps that
allow development on previously exempt parcels.
State Revenue Impact
No estimate.
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Comments
1. Purpose of the bill . AB 644 streamlines the approval process
of subdivisions that present no increased fire risk and are
consistent with a county's general plan by creating a narrowly
crafted exemption to the requirements enacted by SB 1241
(Kehoe). The exemption only applies to one specific land
use-the management of resources. Such an exemption poses
minimal increased fire risk because this type of land use does
not expose many lives or structures to fire hazards. In
addition, the bill includes two provisions intended to prevent
an increase in fire risk. First, the requirement for a binding
restriction that prevents development on parcels smaller than 40
acres creates an additional safeguard that few additional lives
or structures would be exposed to fire hazards. Second, the bill
addresses any concern that this exemption could be used to allow
development that increases fire risk to proceed at a later time.
It closes this potential loophole by explicitly stating that
future tentative maps or parcel maps that would allow
development are subject to the requirements of SB 1241.
Finally, the bill conforms to the existing statutory requirement
that major land use decisions must be consistent with a county's
general plan by requiring the exempted subdivision to be
consistent with the open space purpose in the county's general
plan.
2. Too Soon? AB 644 raises the question of whether now is the
right time to pursue these changes. AB 644 would amend the
provisions of SB 1241 (Kehoe, 2012). Given that SB 1241 went
into effect just over two years ago, approving this bill could
open the door for additional-and potentially more
substantial-amendments to SB 1241 earlier than necessary. Are
these changes urgent enough to balance out that risk? In
addition, the Legislature has authorized the study of the
Subdivision Map Act by the California Law Revision Commission.
The California Law Revision Commission is tasked with reviewing
the law to identify defects and recommend changes in order to
allow the Legislature to focus on major policy changes. The Map
Act was most recently reauthorized for study in 2014 by SCR 83
(Monning). The Committee may wish to consider whether it should
allow the commission to study the Map Act before making
additional changes to it.
3. Under development . AB 644 would not exempt maps that result
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in parcels smaller than 40 acres unless those parcels are
subject to binding restrictions that prohibit any development of
buildings or structures. However, agricultural activities and
other activities that are consistent with the open space purpose
may require incidental structures, such as water towers, to be
constructed. As such, the author plans to amend AB 644 to allow
some incidental structures that do not significantly increase
fire risk or expose lives to danger and that comply with
existing statutory requirements for clearing space around
structures, as follows:
On page 3, line 8, strike out "a building or structure"
and insert "habitable, industrial, or commercial buildings
or structures. All other structures must comply with
defensible space requirements per Public Resources Code
Section 4291 or Government Code Section 51182."
4. Let's be clear . In order to clarify that any later
subdivision map approvals which would result in development
would trigger the need to make the fire-related findings, the
author plans to amend AB 644 as follows:
On page 3, line 9, after "approval" insert "to remove a
binding restriction placed as a condition".
5. Technical Amendment . AB 644 creates an exemption for
open-space land with the purpose of "management of resources."
However, existing statute (Government Code §65560(b)) lists the
"managed production of resources" as a purpose of open-space
land. To make AB 644's language consistent with existing
statute, the Committee may wish to consider the following
technical amendment:
On page 3, line 1, strike out "management of resources"
and insert "managed production of resources".
Assembly Actions
Assembly Local Government Committee: 9-0
Assembly Floor: 77-0
Support and
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Opposition (6/4/15)
Support : County of Humboldt (sponsor). California State
Association of Counties.
Opposition : Unknown.
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