BILL ANALYSIS �
SENATE GOVERNANCE & FINANCE COMMITTEE
Senator Lois Wolk, Chair
BILL NO: SB 1241 HEARING: 4/18/12
AUTHOR: Kehoe FISCAL: Yes
VERSION: 4/10/12 TAX LEVY: No
CONSULTANT: Lui
FIRE HAZARDS AND LAND USE PLANNING
Requires cities and counties to address fire risk for state
responsibility areas and very high fire hazard severity
zones in general plan updates and subdivision approvals.
Background
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 the CALFIRE to designate
very high fire hazard severity zones. Landowners in these
areas must follow specified fire prevention practices (AB
337, Bates, 1992).
Every county and city must adopt a general plan with seven
mandatory elements: land use, circulation, housing,
conservation, open space, noise, and safety. Except for
the housing elements, the Planning and Zoning Law does not
require counties and cities to regularly revise their
general plans. Cities and counties' major land use
decisions -- subdivisions, zoning, public works projects,
use permits -- must be consistent with their general plans.
Development decisions must carry out and not obstruct a
general plan's policies.
In the aftermath of annual wildfires, state and local
officials have thought about how 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
SB 1241 -- 4/10/12 -- Page 2
is to use land use planning to guide decisions about future
development.
Proposed Law
I. Safety Element Contents . The Planning and Zoning Law
states that the safety element's purpose is to protect the
community from unreasonable risks from geologic hazards,
flooding, and wildland and urban fires. In 2007, the
Legislature expanded the general plan's contents related to
flood hazards, requiring the safety element to contain:
Information about flood hazards, listing 11 types
of information.
Based on that information, a set of comprehensive
goals, policies, and objectives to protect against
unreasonable flood risks.
To carry out those goals, a set of feasible
implementation measures.
These changes must appear in safety elements the next time
that cities and counties revise their housing elements (AB
162, Wolk, 2007).
Senate Bill 1241 requires cities and counties to review and
update their safety elements to address fire risks on land
classified as SRA and very high fire hazard severity zones.
Local officials must act before January 1, 2015 and, after
that, each time they revise their housing elements.
SB 1241 requires cities and counties to consider the
Governor's Office of Planning and Research "Fire Hazard
Planning" document, a technical advice series, when cities
and counties review a general plan's safety elements. The
bill also expands the required contents of safety elements
that cover SRA lands and very high fire hazard severity
zones to include:
Information about fire hazards, including:
o Fire hazard severity zone maps from the
Department of Forestry and Fire Protection;
o Historical data on wildfires, including
maps prepared by local agencies displaying areas
historically subject to wildfires;
o Information about wildfire hazard areas
available from the U.S. Geological Survey;
o The general location and distribution of
existing and planned development in very high
SB 1241 -- 4/10/12 -- Page 3
fire hazard severity zones and in State
Responsibility Areas, including structures,
roads, utilities, and essential public
facilities. The location and distribution of
planned development does not require defensible
space compliance measures required by state law
or local ordinance to occur on publicly owned
lands or open space designations of homeowner
designations; and
o Local, state, and federal agencies with
responsibility for fire protection, including
special districts and local offices of emergency
services.
Based on that information, a set of goals,
policies, and objectives for the protection of the
community from unreasonable risk of wildfire.
To carry out those goals, policies, and objectives,
a set of feasible implementation measures, based on
information including, but not limited to:
o Avoiding or minimizing the wildfire
hazards associated with new development, such as
building materials that are not fire resistant,
flammable vegetation, insufficient defensible
space or fuel breaks, and lack of appropriate
emergency road access;
o Identifying construction design or
methods, including fire-resistive construction
materials, fuels management methods or other
methods, to minimize the potential for ignition
or spread of a structure fire to wildlands or
surrounding areas if new development is located
in a SRA or in a very high fire hazard severity
zone.
o Locating, when feasible, new essential
public facilities outside of high fire risk
areas, including but not limited to, hospitals
and health care facilities, emergency shelters,
emergency command centers, and emergency
communications facilities, or identifying
construction methods or other methods to minimize
damage if these facilities are located in a SRA
or very high fire hazard severity zone;
o Designing adequate infrastructure if a
new development is located in a SRA or in a very
high fire hazard severity zone, including safe
access for emergency response vehicles, visible
SB 1241 -- 4/10/12 -- Page 4
street signs, and water supplies for structural
fire suppression;
o Working cooperatively with public
agencies responsible for fire protection.
II. Subdivision Approvals . 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 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 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
SB 1241 -- 4/10/12 -- Page 5
regulations regarding road standards for fire
equipment access adopted by the State Board of
Forestry and Fire Protection pursuant to a specified
statute.
The bill also notes these requirements do not supersede
regulations established by the State Board of Forestry and
Fire Protection or local ordinances that provide equivalent
or more stringent requirements.
III. Safety Element Review . A county with SRA lands and a
city or county with very high fire hazard severity zones
must send their draft documents to the State Board of
Forestry and Fire Protection and to the local fire agencies
for comment. If the recommendations are not available in
time, local officials can act without them (SB 186, Dills,
1989 and AB 3065, Kehoe, 2004). Senate Bill 1241 clarifies
these requirements.
IV. Planning Advice . The Governor's Office of Planning
and Research (OPR) serves as the state's comprehensive
planning agency. OPR regularly revises the "General Plan
Guidelines," which advise cities and counties on how to
prepare local plans, and also publishes other advisory
reports, including "Fire Hazard Planning" (November 2003).
Senate Bill 1241 requires the Office of Planning and
Research to update "Fire Hazard Planning" by January 1,
2014.
V. Environmental Review . The California Environmental
Quality Act (CEQA) requires public officials to consider a
proposed project's environmental effects and to avoid or
mitigate environmental impacts when feasible. To help
public agencies carry out their duties, the Governor's
Office of Planning and Research (OPR) drafts and the
Secretary of the Natural Resources Agency adopts
administrative regulations called "CEQA Guidelines."
Senate Bill 1241 requires the Office of Planning and
Research to cooperate with the State Department of Forestry
and Fire Protection in recommending changes to the
Secretary of the Natural Resources Agency for the initial
study of the "CEQA Guidelines" regarding fire hazard
impacts on land classified as a SRA and very high fire
hazard severity zones.
SB 1241 -- 4/10/12 -- Page 6
VI. Disclaimer . By imposing new duties on a city or county
with regard to reviewing and updating its general plan, SB
1241 expands a state mandate. If the Legislature or any
state agency mandates a new program or higher level of
service, local agencies and school districts are entitled
to compensation. This bill declares that no reimbursement
is required because counties and cities can impose fees.
State Revenue Impact
No estimate.
Comments
1. Fire safety . Comprehensive land use planning serves
two purposes. First, it helps public officials avoid
problems when they make decisions about the future.
Second, it helps public officials solve past problems. In
October 2007, Governor Schwarzenegger declared a state of
emergency in seven counties battling severe wildfires --
Los Angeles, Orange, San Bernardino, Riverside, Santa
Barbara, San Diego, and Ventura. San Diego County suffered
the greatest fire-related destruction, where the 369,662
acres burned represent 71.4% of the burn area for all
counties. The state government has both a policy interest
and a fiscal interest in the decisions that cities and
counties make about land use for land that's prone to
wildfires. Not only does the state want to protect the
SRAs' watershed resource values, but CALFIRE is responsible
for battling wildland fires. Because local land use
decisions affect the state's costs of fire prevention and
suppression, the state wants to encourage wise land use
planning that prepares local officials to make smart
development decisions. Development in fire-prone areas
increases the costs of both fire prevention and
suppression, risking lives and property. Recent
catastrophic fires underscore the risks posed by
development. By requiring new subdivisions in fire-prone
areas to meet crucial fire safety standards and tying the
safety element update to a city or county's housing element
update, SB 1241 will keep public expenditures under
control, protect property, and, most importantly, save
lives.
SB 1241 -- 4/10/12 -- Page 7
2. Tempered tempers . Some local governments oppose SB
1241 because of the bill's costly unfunded mandate, linkage
with the housing plan update, and perceived redundancy.
Several counties already plan for fire safety without this
bill. In 2010, Monterey County adopted the Community
Wildfire Protection Plan to fulfill the federal Healthy
Forests Restoration Act of 2003. The Plan details fire
hazard risk areas, uniformity of ingress and egress safety
points, strategic fuelbreaks, hazardous fuel reduction
treatments, evacuation methods, and wildland-urban
interface zone boundaries. El Dorado County's 2004 General
Plan includes all of SB 1241's proposed provisions. San
Bernardino County has its County Fire Hazard Abatement
Program, which enforces locally adopted fire hazard
requirements, establishes defensible space, and conducts
two surveys each year in Valley and Desert Regions. SB
1241 fails to recognize that some cities and counties,
particularly those historically at-risk for wildland fires,
have taken measures into their own hands. Is this bill a
solution in search of a problem? Rather than requiring a
one-size-fits-all fire safety plan and reversing some local
governments' progressive fire planning, the Committee may
wish to ask for an amendment that recognizes city and
county's existing fire safety plans and instead, integrate
those practices into this bill.
3. Hot timing . Counties assert that linking a safety plan
update to a housing plan update invites unnecessary cost
and litigation because the safety element rarely changes,
unlike housing. If a housing element does change, then the
safety element must also change because of the general
plan's internal consistency rule -- all elements of the
general plan must be consistent with each other (Government
Code �65300.5). Does it make sense to require a fire
safety update, if the contents might be the same? The
Committee may wish to let the general plan's internal
consistency rule.
4. Another mandate . The Legislature first required cities
and counties to adopt general plans in 1937 (AB 722,
Weber). Over the last 70 years, legislators have insisted
on increasingly detailed local plans. The recent trend has
been to require general plans to pay more attention to
specialized topics: San Joaquin Valley's air quality (AB
170, Reyes, 2003), wildland fires (AB 3065, Kehoe, 2004),
tribal cultural places (SB 18, Burton, 2004), military
operating areas (SB 926, Knight, 2004), and flood hazards
SB 1241 -- 4/10/12 -- Page 8
(AB 162, Wolk, 2007). As land use problems hit the
headlines, they capture the attention of legislators who
react by imposing new planning requirements on cities and
counties. But, unlike other states, California doesn't
invest State General Fund money in long-range,
comprehensive, local planning. The burden of funding these
new state mandated local programs falls on local General
Funds and on the property owners who apply for development
permits. Communities that live with wildland fire hazards
already know who they are. SB 1241 is just another
well-intentioned, but unfunded, state mandated local
program.
5. OPR workload . SB 1241 requires the Governor's Office
of Planning and Research to update its "Fire Hazard
Planning" technical advisory document by January 1, 2014.
OPR plans to update its General Plan Guidelines document
this summer and will likely complete it within 18 months.
In addition, OPR still needs to update the CEQA Guidelines
document and SB 226 (Simitian, 2011) "CEQA Streamlining for
Infill Projects" technical advisory. The additional time
needed to implement SB 1241 may delay OPR's planned release
of the General Plan Guidelines.
6. Legislative history . SB 1241 is not the first measure
to propose better land use planning for wildland fires.
A nearly identical SB 1207 (Kehoe, 2010) was vetoed
by Governor Schwarzenegger. His veto message
concurred that counties must ensure adequate fire
protection before approving more development, but he
worried about the bill's costs.
The Senate Local Government Committee approved
(3-2) SB 505 (Kehoe, 2009). Governor Schwarzenegger
vetoed the bill citing cost concerns.
SB 1500 (Kehoe, 2008) would have prohibited
counties from approving development on SRA lands
unless there was sufficient structural fire
protection. SB 1500 died on the Assembly Floor
without a vote.
AB 666 (Jones, 2009) would have required county
supervisors to find that adequate fire protection
exists before approving subdivisions.
AB 2447 (Jones, 2008) would have required county
supervisors to deny development on SRA lands without
sufficient structural fire protection. Governor
Schwarzenegger vetoed both of the Jones bills, citing
SB 1241 -- 4/10/12 -- Page 9
lack of secure funding.
7. Similar legislation . On April 18, the Assembly
Appropriations Committee will hear AB 1506 (Jeffries),
which seeks to repeal a fire prevention fee on structure
owners located within the State Responsibility Area (AB x1
29, Blumenfield, 2011).
8. Double-referred . Because SB 1241 requires the
Secretary of the Natural Resources Agency to certify and
adopt changes, the bill was double-referred to Senate
Natural Resources and Water Committee (5-2), which heard
the bill on March 27, 2012.
Support and Opposition (4/12/12)
Support : American Planning Association; Endangered
Habitats League; California Professional Firefighters;
California Fire Chiefs Association; Fire Districts
Association of California; California Native Plants
Society; Sierra Club California.
Opposition : California State Association of Counties;
Regional Council of Rural Counties.