APA California Legislative Update – July/August 2009


Only a Few Planning Bills Still of Concern

Here is a quick update of the 2009 legislative measures dealing with planning issues.
As you can see, the budget woes required authors to take major amendments to reduce the costs of bills that included extensive local state mandated costs, and many other bills were made two-year bills due to cost or other issues.

As of today, the budget still has not been signed, so the big news is the amount of moneys that the state will take or borrow from local governments to help balance the $26.3 billion deficit. A combination of Prop 1A, redevelopment and transportation funds up to $5.3 billion are expected to be part of the deal, with some mitigation to reduce the pain to local governments in some way. Also unclear is how much if any of the agency “restructuring” will be part of the deal. The last news on this front eliminated the Office of Planning and Research, and its State Clearinghouse and Planning Unit functions were being moved to the Air Resources Board, including the Strategic Growth Council. This is a very sad development that APA does not support. And, just where the functions may end up are still under discussion, including possibly the Governor’s office itself, the Housing and Community Development Department or a new Department of Planning in the Resources Agency.

One other issue that is being discussed, but it not yet in any specific bill, is a request by the housing advocate organizations to deal with the court’s decision in Urban Habitats v. City of Pleasanton. They believe that the 90-day statute of limitations on provisions in 65009 (d) inappropriately limit their ability to challenge housing elements and other housing policies and ordinances that do not otherwise comply with the law or will not comply under the new process in SB 375. Their solutions so far, however, have been to allow an indefinite statute of limitations, which amounts to no statute of limitations at all, or as much as four years to bring action following adoption. This issue is still under discussion. APA cannot support provisions that open local government up to large judgments or leave cities and counties hanging for years wondering whether or not they will be sued, particularly since the Pleasanton case gave those who brought the case the right to proceed with their claim against the City.

Finally, the SB 375 Regional Targets Advisory Committee, which was appointed to give ARB guidance in determining GHG emission reduction targets for the regions, is continuing to meet. Pete Parkinson, APA California’s Vice President for Policy and Legislation, is on the RTAC. The RTAC is expected to finish its work in the next few months.

In the mean time, here is where we are:


AB 39 (Huffman), SB 12 (Simitian), AB 457 (Wolk) and AB 458 Wolk) are the package of Delta bills that have now been gutted and sent to a conference committee. The goal of the bills will be to decide the governance and land use oversight structure of the Delta, a contentious and ongoing debate that may finally be decided this year. Governor Schwarzenegger created a Governor’s Delta Vision Blue Ribbon Task Force which released its Delta Vision Strategic Plan in October 2008. The Task Force’s report called for a new governance structure with the authority, responsibility, accountability, science support, and secure funding to achieve its recommended co-equal goals for restoring the Delta ecosystem and creating a more reliable water supply. The five Delta counties and Delta cities have been working very closely with the authors and APA continues to monitor the measures.


AB 45, authored by Assembly Member Blakeslee, restricts local approvals of small wind energy systems in non-urban areas similar to a law that sunsetted last year. As amended, APA removed its opposition pending some additional technical amendments and a request to allow areas that are non-urban now but will be urbanizing to require the systems to be removed when that occurs. It is now in the Senate Appropriations Committee.


AB 300, authored by Assembly Member Caballero, is sponsored by builders and developers and is designed to ensure that builders who install voluntary water demand measures, receive credit for their savings in connection with water-demand assessments and verifications done during the entitlement process. The bill requires the public water agency to maintain control of the water assessment for new developments and requires the voluntary water demand measures be permanently affixed to the property. APA does not oppose the concept, but ensuring compliance and monitoring that compliance over time remains a core issue. The bill is in the Senate Appropriations Committee.


AB 333 (Fuentes) was just signed into law by the Governor as an urgency measure, which means the bill is effective immediately. It provides another extension of the expiration dates of 24 months for tentative maps, vesting tentative maps, or parcel maps for which a tentative map or tentative vesting map has been approved, provided their approval date has not expired when this bill takes effect. This extension is in addition to any other statutory extensions previously granted by the Legislature.

However, rather than just allowing another map extension, this measure also reduces, from five years to three years, the period of time after the approval of a tentative map or recordation of a parcel map during which a city or county is prohibited, with exceptions, from imposing specified conditions on a building permit. The bill states that the prohibition on conditions being placed on building permits does not prohibit a local agency from levying a fee or imposing a condition that requires the payment of a fee upon the issuance of a building permit or after the issuance, including a fee as defined in the Mitigation Fee Act. As stated in the analysis, by reducing, from five years to three years, “the period of time during which cities and counties are prohibited from placing specified conditions on the issuance of any building permit, and by stating that that prohibition does not apply to specified permit fees, this bill attempts to mitigate some of the impacts of repeated subdivision and parcel map extensions on cities and counties.”


Originally a very expansive measure that would have allowed farmworker housing on any parcel that allowed agricultural use, this measure was substantially amended to remove APA’s opposition. AB 494, authored by Assembly Member Caballero, now exempts from the Subdivision Map Act the lease of “agriculturally zoned land” to nonprofit organizations for the purpose of operating an agricultural labor housing project if the property is not more than five acres, and if the lease is for at least 30 years and signed before January 1, 2020. Assembly Member Caballero still would like to remove some hurdles she believes have made it difficult at the local level to build farmworker housing and will most likely introduce another measure again in 2010. AB 494 is on the Senate Floor.


Two measures dealing with high fire areas are continuing to move, but both have been substantially amended. APA now supports both measures. AB 666 (Jones) requires counties to make findings that new development meets fire service availability, fire design and access requirements before approving maps in a state responsibility area or a very high fire hazard severity zone. SB 505 (Kehoe) requires changes in the Safety Element of the General Plan to protect the community from fire risk in a State Responsibility Area or within very high hazard severity zones. These changes must be incorporated into the Safety Elements by January 2015 and then updated as needed upon revision of the housing element thereafter. Both measures are in the second house.


AB 853 (Arambula) is now a two-year bill and will not be moved until 2010. It would have specified procedures for annexing unincorporated disadvantaged fringe communities and island communities to a city.


AB 1084 (Adams) originally would have made it difficult in increase fees or impose conditions on projects. As amended the bill clarifies notice, adjustment, and audit procedures with regard to a proposed or existing fee. These changes are consistent with existing law and practice. APA is now neutral on the bill. It is currently on the Senate floor.


SB 194 (Florez) would have required cities and counties accepting Prop 84 funds to amend the General Plan to include extensive information and implantation measures to address disadvantaged communities in or near its boundaries. It is a two-year bill.


SB 326 (Strickland) would have required housing needs assessments in housing elements to include existing and projected foreclosure rates and the impact on housing needs. It is a two-year bill.


SB 518 (Lowenthal) would have required localities to adopt and implement 20 points worth of parking reforms by 2012. It is a two-year bill. As last amended, it was a voluntary program, which APA supported.


SB 575 authored by Senator Steinberg is the clean up vehicle for SB 375 and specifies how the new housing element due dates under the new 8-year RHNA process will be implemented and reconciled with local RTP’s and SB 375 regional planning requirements. It is currently in the Assembly Appropriations Committee. APA supports this measure.