CSAC Bulletin Article

Housing, Land Use, and Transportation 04/29/2011

California Environmental Quality Act 

AB 890 (Olsen) – Support
As Amended on March 29, 2011

AB 890, by Assembly Member Kristin Olsen, would exempt from the California Environmental Quality Act (CEQA) a roadway improvement project or activity performed by a city or county on the local street and road system within the existing right-of-way. Specifically, this measure would include, but not be limited to guardrails, shoulder widening, minor drainage improvements, culvert replacements, traffic signal modifications, minor realignments, and safety improvements. 

While CSAC supports the goals of CEQA – to inform elected officials, decision-makers, and the public at large about potential environmental impacts from public works projects – unnecessary environmental review processes increase project delivery times and overall project costs without advancing CEQA’s goals. On major projects, environmental review remains necessary. However, some maintenance and safety projects, such as installing or replacing a guardrail to address safety concerns on a local street or road, in the existing right-of-way, do not have significant, if any, environmental impacts. Requiring CEQA review on these projects makes the process unnecessarily long and delays important infrastructure improvements that are necessary to protect the safety and well-being of all Californians. The proposal would not exempt projects that would disturb previously undeveloped land. It would, however, streamline the project delivery process for important safety improvements at sites where environmental review has already occurred and the project would not cause additional environmental impact. 

Given the current fiscal climate throughout California, it is important, more now than ever before, to maximize taxpayer dollars for the greatest amount of benefit. Money saved on unnecessary environmental review means more money for more transportation safety projects. 

AB 890 is set for hearing before the Assembly Natural Resources Committee on May 2. 

AB 931 (Dickinson) – Sponsor
As Amended on April 15, 2011

AB 931, by Assembly Member Roger Dickinson, sponsored by CSAC, aims to incentivize affordable infill housing projects throughout the State of California. 

As first introduced, AB 931 would have amended specific existing statutory criteria in order to qualify for CEQA exemptions for affordable infill housing development. Counties have been unable to use this tool in the past because the criteria are too stringent to be realistically implemented. More specifically, the proposal would have made changes to three of the 10 criteria as follows:
? Increased the maximum floor area ratio for retail in mixed-use projects from 15% to 35%; 
? Reduced minimum density from 20 to 15 units per acre; and
? Increased from five to 20 years the life of a community-level environmental review.

However, after outreaching to environmental, housing, and other stakeholder groups, the bill was amended to makes changes to only one of the existing criteria – reducing the maximum floor area ratio for retail to housing in mixed-use projects from 15% to 25%. CSAC remains committed to working with the Legislature to find a workable solution that meets our goals as well as considers the concerns expressed by other CEQA and housing development stakeholders. However, these amendments were necessary at this time to keep the measure moving through the legislative process and allow us more time for meaningful conversations. 

CSAC remains steadfast in our position that certain urbanized unincorporated areas are ripe for smart growth and infill housing development. This is particularly true since we are still obligated under housing element law to meet lower-income regional housing need allocations. We sincerely hope that we are able to engage all the stakeholders to meet our two-fold goal: 1) increase affordable housing production, and 2) focus growth in existing urbanized areas. These goals are consistent with other efforts to give counties the flexibility and tools to meet compact smart growth, climate change, and SB 375 goals. 

AB 931 was passed out of the Assembly Natural Resources Committee on April 25 and the Assembly Housing and Community Development Committee on April 27 by consent. The measure is awaiting a vote by the entire Assembly. 


AB 542 (Allen) – Support
As Introduced on February 16, 2011

AB 542, by Assembly Member Michael Allen, would allow a local government, in its determination of whether sites included in the local government’s inventory of land can accommodate some of its share of the regional housing need, to use densities less than those “default densities” under certain circumstances. More specifically, the measure would allow densities less than the default densities, if the site is owned by the planning agency and set aside for affordable housing development; or, the planning agency has offered to provide subsidies on a per unit basis for affordable housing construction.

Current statute provides for specific densities as accommodating housing for lower-income households, commonly referred to as “default densities”. However, statue also authorizes local jurisdictions to accommodate their share of regional housing needs utilizing lesser densities based on additional analysis provided in their housing element. 

CSAC maintains, and has for many years, that a one-size fits all approach to determine densities for lower-income housing does not address the variation that exists throughout California’s counties and it has become apparent may actually inhibit our ability to bring affordable projects to fruition. Counties vary in size and character across the state and what works in one county does not necessarily work in another county. Even counties considered similar in nature (i.e. urban, suburban, or rural) have local circumstances and housing market forces that effect housing production and affordability (i.e. land costs, surrounding densities, infrastructure capability, etc.). 

As mentioned earlier, current law allows counties to provide the California Department of Housing and Community Development (HCD) an analysis demonstrating how its adopted densities less than the default densities will meet lower-income housing needs. Unfortunately, we are unaware of an instance in which HCD has accepted this analysis and approved a housing element with densities less than the default densities. 

AB 542 is simply trying to assist local governments to meet lower-income housing needs by providing affordable housing at lower densities. This is necessary in order for the law to reflect the variation among all of California’s communities so that governments can ultimately encourage and provide affordable housing development. This approach only provides additional options for meeting the lower-income housing needs in the housing element to counties that own and set-aside land for affordable housing or for local agencies that provide subsidies to make a housing project affordable. However, in light of HCDs inaction to accept lower densities, it is a necessary interim step until a broad coalition of stakeholders can come together to implement comprehensive change to housing element law. Current housing element law is clearly not providing sufficient flexibility to promote alternative densities that could actually result in building affordable housing. 

AB 542 was passed out of the Assembly Housing and Community Development Committee on April 27 by by a unanimous vote. The measure now awaits action by the entire Assembly. 

Land Use

AB 1220 (Alejo) – Oppose
As Introduced on April 25, 2011

AB 1220, by Assembly Member Luis Alejo, would expand from over one year to five years the statute of limitations to sue a city or county, challenging the adoption of a housing element or a number of related ordinances. It will encourage a broad array of expensive lawsuits that do not differentiate between major noncompliance with state law or a small difference in interpretation. This will leave local agencies, businesses, and developers unfairly open to uncertainty long after decisions have been made. And, it is important to note that these challenges do not mandate approval of actual housing projects, but only require a change in a planning document.

Our concerns related to this bill are consistent with our opposition to similar bills introduced in previous legislative sessions – except that this year, cities and counties are even more strapped for funding and staff. 

As important, however, is the fact that this bill is not needed to enforce housing obligations. In Urban Habitats v. City of Pleasanton, the decision this bill is intended to overturn, the housing advocates were successful in reaching a settlement that overturned the City’s growth limit. There are also a number of new remedies available to housing advocates to enforce local housing obligations, at the very time local agencies will be expected to implement a large number of brand new housing element requirements. 

The law has to be balanced – for cities and counties, housing and commercial developers and advocates. This bill, under existing circumstances, is not a balanced approach. Under this bill, a small misstep on the part of the local agency can shut down development in a jurisdiction until a lawsuit is completed, even though more targeted remedies are available that can require a local agency to make a fix without imposing a full building moratorium until a court makes a final determination. And again: these challenges, costing local agencies millions of dollars to defend, are brought to require a specific change in a planning document, not to build housing. As such, CSAC is opposed to this measure. 

AB 1220 was passed out of the Assembly Housing and Community Development Committee on April 27 by a vote of 5 to 2. The measure is now set for hearing before the Assembly Local Government Committee on May 4 

SB 184 (Leno) – Support
As Amended on March 24, 2011

SB 184, by Senator Mark Leno, would restore to counties and cities an essential tool for planning and providing their fair share of the housing need for lower-income residents in the state by making explicit that local inclusionary policies are not prohibited under the Costa-Hawkins Act.

SB 184 is set for hearing before the Senate Transportation and Housing Committee on May 3.

SB 244 (Wolk) – Oppose
As Amended on April 25, 2011

SB 244, by Senator Lois Wolk, would require a city or county to amend its general plan to address the presence of island, fringe, or legacy unincorporated communities inside or near its boundaries. The definition of communities to which this new mandate applies is extremely broad, including a fringe, island, or legacy community in which the median household income is 80% or less than the statewide median household income (a very high income threshold that will mandate additional planning efforts in many areas), any inhabited and unincorporated territory that is within a city’s sphere of influence or that is surrounded or substantially surrounded by one or more cities, or a geographically isolated community that is inhabited and has existed for at least 50 years – regardless of income in the community. 

Many cities and counties have taken steps to address disadvantaged unincorporated communities and our associations agree that substandard conditions should be addressed in a way that is appropriate to each community. We recognize the importance of an inclusive planning process that addresses the needs of communities and populations that have been historically underserved. Further, we understand the need to review other solutions that adequately consider disadvantaged communities with respect to infrastructure deficiencies and a general need to consider such communities in the context of other local government actions. 

However, as with last year’s SB 1174, we must oppose the general plan requirements included in the bill. Given the current recession, cities and counties continue to face funding shortfalls and insufficient staffing levels for planning, services and infrastructure improvements. As currently drafted, this bill would impose a very expensive new mandate on cities and counties to amend their general plans with an extraordinary amount of detail regarding not only disadvantaged but also “fringe communities” which are not required to meet the disadvantaged criteria. It also would require cities and counties to identify ways to mitigate a very broad and un-prioritized list of services in these communities without funds for either the planning requirements or to improve the services and infrastructure. 

SB 244 was passed out of the Senate Governance and Finance Committee on April 27 by a vote of 6 to 3. The measure is now awaiting a hearing in the Senate Appropriations Committee. 


SB 730 (Kehoe) – Request for Comment
As Amended on April 5, 2011

SB 730, by Senator Christine Kehoe, would require a city or county to approve a building permit application to install electric vehicle charging equipment within one business day and conduct an inspection within seven days of completing the work.

AB 730 is set for hearing before the Senate Environmental Quality Committee on May 3.

Public Works

AB 1354 (Huber) – Oppose
As Amended on April 26, 2011

AB 1354, by Assembly Member Alyson Huber, would put scarce resources for schools, hospitals, parks, fire houses, and other public infrastructure at risk by limiting the maximum amount of retention local governments can negotiate in public works contracts. Contract retentions ensure that:
• Public projects are delivered on time and on budget;
• Contractors complete all contract requirements, including small unprofitable punch-list items. When a contractor does not have the proper incentive to complete a public works project, local agencies are left to go back out to contract to finish the job. This is time consuming and costly and does not efficiently use limited financial resources;
• There are sufficient funds to correct defective work if a contractor fails to do so; and
• There are sufficient funds to pay workers in the event contractors fail to pay prevailing wage properly.

A five percent retention cap diminishes a county’s ability to ensure that the provisions of our construction contracts are fully executed, and therefore our ability to protect state and local taxpayer dollars. 

AB 1354 is set for hearing before the Assembly Business, Professions, and Consumer Protection Committee on May 3. 


AB 892 (Carter) – Support
As Amended on April 6, 2011

AB 892, by Assembly Member Wilmer Amina Carter, would extend the State of California’s existing limited waiver of its sovereign immunity, which is necessary to allow the California Department of Transportation (Caltrans) to continue its assumptions of National Environmental Policy Act (NEPA) responsibilities under Safe, Accountable, Flexible, Efficient Transportation Equity Act: A Legacy for Users (SAFETEA-LU). Specifically, the measure extends the limited waiver of sovereign immunity until January 1, 2019, or until a termination of the Memorandum of Understanding (MOU) between the California Department of Transportation and the Federal Highway Administration. 

Caltrans has been participating in the “Surface Transportation Project Delivery Pilot Program” (Pilot Program) under a MOU since July 1, 2007. To assume these federal responsibilities, Caltrans was required to accept the jurisdiction of the federal courts, necessitating the limited waiver of sovereign immunity. 

The Pilot Program is intended to streamline the process for approving transportation projects by allowing Caltrans to assume FHWA’s responsibility for approvals and consultations under NEPA and other federal laws while maintaining all federal environmental protections. The program requires Caltrans to comply with all FHWA NEPA regulations, environmental policies and formal guidance. Under the program, one layer of bureaucracy, related to FHWA’s review of environmental documents, is removed, decreasing the time required for environmental approvals. 

Based on the first 3.5 years of the Pilot Program, Caltrans has achieved a median time savings of 14 months in preparing and approving routine environmental documents, measured from when environmental studies begin until the final environmental document is signed. These time savings are based on almost 70 projects for which Caltrans independently made environmental approvals for both the draft and final environmental document under the Pilot Program. 

This legislation is a key element in helping Caltrans streamline the environmental review process for critical transportation projects. For these reasons, CSAC supports AB 892.

AB 892 was passed out of the Assembly Transportation Committee on April 25 by a unanimous vote. The measure has been referred to the Appropriations Consent Calendar and will be before the entire Assembly for a vote shortly. 

SB 214 (Wolk) – Support
As Introduced on February 18, 2011

SB 214, by Senator Lois Wolk, would bring Infrastructure Financing Districts (IFDs) more in line with redevelopment districts by removing the voter approval currently needed for cities and counties to create IFDs. 

IFDs allow the reallocation of existing tax revenues to improve a designated area and specifically allows local governments to use their property tax increment to pay for public works projects. Current law, which requires a two-thirds voter approval to create an IFD, unnecessarily discourages local governments from using this creative option to fund much needed infrastructure projects. SB 214 still requires approval of every affected taxing jurisdiction including the City Council or Board of Supervisors to approve a plan for the IFD thus making it a public process that allows for community input into the program. 

Given the fact that there has been a significant underinvestment in transportation infrastructure across the state over the past few decades and that the major sources of transportation funding are no longer sufficient to maintain our current system, let alone modernize it, SB 214 offers an easy solution to allow local governments more flexibility to make transportation investments in their communities. 

SB 214 was passed out of the Senate Governance and Finance Committee on April 27 by a vote of 6 to 3. The measure now awaits a vote before the entire Senate. 

SB 907 (Evans) – Support if Amended
As Amended on April 11, 2011

SB 907, by Senator Noreen Evans, would create the Master Plan for Infrastructure Financing and Development Commission and would require the Commission to prepare and submit a strategy and plan for infrastructure development in California by December 1, 2013. 

CSAC supports the creation of a Commission as a way to develop the necessary information to equip elected officials and decision-makers to plan for and ultimately provide much needed infrastructure in the state across a broad range of categories from transportation, water, schools, and housing, to name a few. 

However, while SB 907 explicitly states that the Commission shall consist of eleven members representing the business community, organized labor, the public, etc., local government has no official representation. As owners and operators of a significant amount of infrastructure in the state, such as the local street and road system of which counties and cities own and operate 82% of California’s total maintained miles, it is imperative the Commission have a local government member. The measure does not even provide that the task forces created to support the Commission have official local government representation. Therefore, we respectfully request an amendment to the measure to explicitly state that one member on the Commission shall represent county government. 

California’s counties have a wealth of information and experience in doing similar work to evaluate the infrastructure needs in our local communities. For instance, CSAC was a founding part of a similar on-going effort to research and determine data and statistics on the needs of the local street and road system as we recognized the difficulty in making funding decisions and prioritizing projects without this information. We hope to use this first hand knowledge to contribute in a meaningful way to the Commission’s efforts as envisioned in SB 907. 

SB 907 was passed out of the Senate Governance and Finance Committee on April 27 by a vote of 6 to 2. The bill will now go before the Senate Appropriations Committee.

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