BILL ANALYSIS �
AB 2108
Page 1
Date of Hearing: April 23, 2014
ASSEMBLY COMMITTEE ON LOCAL GOVERNMENT
K.H. "Katcho" Achadjian, Chair
AB 2108 (Eggman) - As Amended: April 9, 2014
SUBJECT : Sacramento-San Joaquin Valley: flood management.
SUMMARY : Revises findings required by a city or county within
the Sacramento-San Joaquin Valley for specified development
permits that would result in construction located within a flood
hazard zone. Specifically, this bill :
1)Eliminates the requirement for a city or county within the
Sacramento-San Joaquin Valley to make a finding that the
property in an undetermined risk area has met the urban level
of flood protection based on substantial evidence in the
record, when a city or county is approving a discretionary
permit, other discretionary entitlement, or a ministerial
permit that would result in the construction of a new
residence for a project, that is located within a flood hazard
zone.
2)Requires the city or county to, instead of 1), above, make a
finding that the project is located in a developed area (as
defined by Section 59.1 of Title 44 of the Code of Federal
Regulations).
3)Clarifies that the prohibition on development, unless certain
findings are made, applies to construction of new residences,
not more broadly to "any permit" for new development.
EXISTING LAW :
1)Defines, pursuant to Section 59.1 of Title 44 of the Code of
Federal Regulations, the term "developed area" to mean an area
of a community that is:
a) A primarily urbanized, built-up area that is a minimum
of 20 contiguous acres, has basic urban infrastructure,
including roads, utilities, communications, and public
facilities, to sustain industrial, residential, and
commercial activities, and (1) Within which 75 percent or
more of the parcels, tracts, or lots contain commercial,
industrial, or residential structures or uses; or (2) Is a
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single parcel, tract, or lot in which 75 percent of the
area contains existing commercial or industrial structures
or uses; or (3) Is a subdivision developed at a density of
at least two residential structures per acre within which
75 percent or more of the lots contain existing residential
structures at the time the designation is adopted;
b) Undeveloped parcels, tracts, or lots, the combination of
which is less than 20 acres and contiguous on at least 3
sides to areas meeting the criteria of paragraph (a) at the
time the designation is adopted; or,
c) A subdivision that is a minimum of 20 contiguous acres
that has obtained all necessary government approvals,
provided that the actual meaning with the phrase ''area of
special flood hazard''.
2)Requires each city and county within the Sacramento-San
Joaquin Valley to amend its general plan by requiring each
city and county within the Sacramento-San Joaquin Valley,
within 24 months of July 2, 2013, to amend its general plan to
additionally contain both
of the following:
a) Data and analysis contained in the Central Valley Flood
Protection Plan, including, but not limited to, the
locations of the facilities of the State Plan of Flood
Control and the locations of the real property protected by
those facilities, pursuant to existing law; and,
b) Locations of flood hazard zones, including, but not
limited to, locations mapped by the FEMA Flood Insurance
Rate Map or the Flood Hazard Boundary Map, locations that
participate in the National Flood Insurance Program,
locations of undetermined risk areas, and locations mapped
by a local flood agency or flood district.
1)Prohibits a legislative body of a city or county within the
Sacramento-San Joaquin Valley from entering into a development
agreement for property that is located within a flood hazard
zone, unless the city or county finds, based on substantial
evidence in the record, that the property in an undetermined
risk area has met the urban level of flood protection based on
substantial evidence in the record.
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2)Prohibits each city and county within the Sacramento-San
Joaquin Valley from approving a discretionary permit or other
discretionary entitlement, or a ministerial permit that would
result in the construction of a new residence, for a project
that is located with a flood hazard zone unless the city or
county finds, based on substantial evidence in the record, one
of the following:
a) The facilities of the State Plan of Flood Control or
other flood management facilities protect the project to
the urban level of flood protection in urban and urbanizing
areas or the national Federal Emergency Management Agency
(FEMA) standard of flood protection in nonurbanized areas;
b) The city or county has imposed conditions on the permit
or discretionary entitlement that will protect the project
to the urban level of flood protection in urban and
urbanizing areas or the national FEMA standard of flood
protection in nonurbanized areas;
c) The local flood management agency has made adequate
progress on the construction of a flood protection system
which will result in flood protection equal to or greater
than the urban level of flood protection in urban or
urbanizing areas of the national FEMA standard of flood
protection in nonubanized areas for property located within
a flood hazard zone, intended to be protected by the
system. For urban and urbanizaing areas protected by
project levees, the urban level of flood protection shall
be achieved by 2025; or,
d) The property in an undetermined risk area has met the
urban level of flood protection based on substantial
evidence in the record.
3)Requires, on or before July 2, 2013, and for the purpose of
providing information to cities and counties necessary for
their determinations relating to level of flood protection,
the Department of Water Resources (DWR) to release floodplain
maps that identify at a minimum the facilities of the State
Plan of Flood Control and the available data as to the water
surface elevation of flooding in urban areas in the event of
the failure of the facilities of the State Plan of Flood
Control during flooding that has a 1-in-200 chance of
occurring in any given year.
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4)Defines an "undetermined risk area" to mean an urban or
urbanizing area within a moderate flood hazard zone, as
delineated on an official flood insurance rate map issued by
FEMA, which has not been determined to have an urban level of
protection.
5)Requires, under the provisions of SB 375 (Steinberg), Chapter
728, Statutes of 2008, a regional transportation plan to
include a Sustainable Communities Strategy designed to achieve
the targets for greenhouse gas emission reductions.
6)Requires each metropolitan planning organization (MPO) to
prepare a Sustainable Communities Strategy that includes the
following:
a) Identification of the general location of uses,
residential densities, and building intensities within the
region;
b) Identification of areas within the region sufficient to
house all the population of the region, including all
economic segments of the population, over the course of the
planning period of the regional transportation plan taking
into account net migration into the region, population
growth, household formation and employment growth;
c) Identification of areas within the region sufficient to
house an eight-year projection of the regional housing need
for the region as specified;
d) Identification of a transportation network to service
the transportation needs of the region;
e) Gathers and considers the best practically available
scientific information regarding resource areas and
farmland in the region, as specified;
f) Considers the state housing goals, as specified; and,
g) Sets forth a forecasted development pattern for the
region, which, when integrated with the transportation
network, and other transportation measures and policies,
will reduce the greenhouse gas emissions from automobiles
and light trucks to achieve, if there is a feasible way to
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do so, the greenhouse gas emission reduction targets
approved by the state board, as specified.
FISCAL EFFECT : None
COMMENTS :
1)Background and previous legislation . The State Plan of Flood
Control is a document of existing state and federal flood
control works, protection systems, lands, programs, plans,
conditions, modes of operations, and maintenance of the
Sacramento River Flood Control Project, Sacramento River, and
San Joaquin River watersheds. SB 5 (Machado), Chapter 364,
Statutes of 2007, required DWR and the Central Valley Flood
Protection Board to prepare and adopt a Central Valley Flood
Protection Plan by 2012, and established certain flood
protection requirements for certain local land-use decisions
consistent with the Central Valley Protection Plan.
Under SB 5, each city and county within the Sacramento-San
Joaquin Valley was required to amend its general plan within
two years of the Central Valley Flood Protection Board's
adopting the Flood Plan. A city or county within the
Sacramento-San Joaquin Valley must amend its zoning ordinance
to make it consistent with its general plan within 36 months
of the Board's adopting the Flood Plan. Once a city or county
completes the update to its general plan and amendment to the
zoning ordinance, it is prohibited from entering into a
development agreement for property located within a flood
hazard zone, unless a city or county makes specific findings.
SB 1278 (Wolk), Chapter 553, Statutes of 2012, revised flood
hazard planning and development requirements for those cities
and counties located in the Sacramento-San Joaquin Valley. SB
1278 required each city and county to amend its general plan,
within
24 months of July 2, 2013, with additional information about
the locations of flood hazard zones, locations of undetermined
risk areas, as the bill defines, and other locations, as
specified. This bill also required each city and county to
amend zoning ordinances to be consistent with the amended
general plan, no more than 12 months from the amendment
of the general plan.
Additionally, SB 1278 added a new exception to the existing
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prohibition that a legislative body of a city or county within
the Sacramento-San Joaquin Valley cannot enter into a
development agreement for property that is located within a
flood hazard zone, unless the city or county finds, based on
substantial evidence in the record, that the property in an
undetermined risk area has met the urban level of flood
protection based on substantial evidence in the record.
AB 1259 (Olson), Chapter 246, Statutes of 2013, enacted
conforming changes as a follow-up to SB 1278 (Wolk), Chapter
553, Statutes of 2012, and AB 1965 (Pan), Chapter 554,
Statutes of 2012. AB 1259 added, to the section of law
dealing with discretionary and ministerial permits, a
provision that allows the city or county to approve a
development agreement if a finding can be made, based on
substantial evidence in the record, that the property in an
undetermined risk area has met the urban level of flood
protection.
1)Purpose of this bill . This bill eliminates the requirement
for a city or county within the Sacramento-San Joaquin Valley
to make a finding that the property in an undetermined risk
area has met the urban level of flood protection based on
substantial evidence in the record, when a city or county is
approving a discretionary permit, other discretionary
entitlement, or a ministerial permit that would result in the
construction of a new residence for a project that is located
within a flood hazard zone. Instead of this finding, the bill
places a new requirement for a city or county to instead make
a finding that the project is located in a developed area, as
defined in a section of the Code of Federal Regulations. In
this manner, the bill provides greater flexibility for local
agencies within the Sacramento-San Joaquin Valley to approve
developments in a flood hazard zone.
The bill also clarifies an ambiguity in this section of law
related to the interpretation that the prohibition on
development, unless certain findings are made, applies only to
construction
of new residences, not more broadly to "any permit" for new
development.
This bill is author-sponsored.
1)SB 375 (Steinberg) and infill development . SB 375
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(Steinberg), Chapter 728, Statutes of 2008, requires a
regional transportation plan to include a Sustainable
Communities Strategy designed to achieve the targets for
greenhouse gas emission reductions. The Sustainable
Communities Strategy must include the following:
a) Identification of the general location of uses,
residential densities, and building intensities within the
region;
b) Identification of areas within the region sufficient to
house all the population of the region, including all
economic segments of the population, over the course of the
planning period of the regional transportation plan taking
into account net migration into the region, population
growth, household formation and employment growth;
c) Identification of areas within the region sufficient to
house an eight-year projection of the regional housing need
for the region, as specified;
d) Identification of a transportation network to service
the transportation needs of the region;
e) Gathers and considers the best practically available
scientific information regarding resource areas and
farmland in the region, as specified;
f) Considers the state housing goals, as specified; and,
g) Sets forth a forecasted development pattern for the
region, which, when integrated with the transportation
network, and other transportation measures and policies,
will reduce the greenhouse gas emissions from automobiles
and light trucks to achieve, if there is a feasible way to
do so, the greenhouse gas emission reduction targets
approved by the state board, as specified.
2)Author's statement . According to the author, "Under SB 5
(Machado), Chapter 364, Statutes of 2007, Sacramento-San
Joaquin Valley cities and counties are prohibited from
entering into any development agreement, approve any
discretionary permits, discretionary entitlements or
ministerial permits or approve any tentative maps or parcel
maps after June 2, 2016, for any flood hazard zone unless the
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adequacy of flood protection specific to that area has been
demonstrated. That adequate standard is so-called "200-year"
flood protection, meaning that it must provide protection
against a level of flood that has a .5% chance of occurring in
any given year."
"The standards are proving cost prohibitive to developers, and
the affected communities are not capable of financing
sufficient flood protection infrastructure on their own.
Further, most if not all of the affected communities depend on
developer impact fees to fund flood protection improvements,
but developers will find it more attractive and viable to move
their development projects to less-developed greenfield areas.
These communities are also subject to 100-year (1% chance in
any given year) flood protection standards, and have their own
additional requirements. The de facto moratorium that will
occur is economically devastating to these communities, and
undermines their smart growth and sustainability policies, as
well as other significant state policy goals in the areas of
development and transportation and greenhouse gas emissions
reduction. AB 2108 attempts to continue progress toward
achieving the needed flood protection for those urban
communities, by the state mandate of 2025, while at the same
time easing barriers to infill development consistent with
sustainable city planning."
3)Arguments in support . Supporters argue that they are
committed to achieving 200-year flood protection by the
state-mandated deadline of 2025, but must also ensure that
[the affected cities and counties] can simultaneously achieve
sustainability goals, and that cities and counties in the
Sacramento-San Joaquin Valley are already required to meet
100-year flood protection standards. Supporters note that
this bill ensures that an unnecessary building moratorium does
not stop smart development as well as the funding stream
necessary to meet long term flood protection goals.
4)Arguments in opposition . None on file.
5)Double-referral . This bill is double-referred to the Water,
Parks and Wildlife Committee.
REGISTERED SUPPORT / OPPOSITION :
Support
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California Infill Builders Federation
City of Sacramento
County of San Joaquin
League of California Cities
Opposition
None on file
Analysis Prepared by : Debbie Michel / L. GOV. / (916)
319-3958