Agenda Summary- Land Use and Environmental CommitteeThe Anaheim Marriott Hotel
Anaheim, California
Thursday, January 26, 2006
8:00 a.m.-10:00 a.m.Presiding:
James Irving, Chair,
Carol Banner, Vice Chair
Peter Morris, Vice chair
Irma Vargas, Committee Liaison
Susan Davis, Rural Forum ChairC.A.R. Staff:
Elizabeth Brode, Legislative AdvocateVI.  Discussion/Information ItemsA.  Report from C.A.R.’s Eminent Domain Task Force
A verbal progress report will be made to the committee by task force Chair, Bill Jansen.B.  Report from Onsite Wastewater Disposal “Septic” Working Group: Current Status of SWRCB AB 885 Draft Statewide Regulations forSeptic Tanks
A representative of the working group will make a verbal report to the committee.C.  Report from REALTOR® Committee on Air
A representative of the RCAQ will make a verbal report to the committee.D.  Growth, Development and Infrastructure
1. AB 1460 (Umberg) - Subdivision: Release of Security
Position: Support (Signed by the Governor)
This bill establishes a process for a phased partial release of the security when the work of improvementis complete.  If a local agency identifies a portion of the work as complete and a portion of the work as incomplete or unsatisfactory it would be authorized to release that portion of the security for the completed portion and retain the remaining portion of the security to ensure satisfactory completion.  C.A.R. supports this measure because it speeds up the release of the security.  Current law unfairly forces builders to pay additional premiums to keep bonds active; adding to the overall cost of the project, and can subject builders to bond capacity problems because of the long delays.2. SB 1059 (Escutia) - Electric Transmission Corridors
Position: Watch as Amended
Existing law requires the State Energy Resources Conservationand Development Commission to adopt a strategic plan for the state's electric transmission grid using existing resources.  This bill would authorize the commission to designate areas within the state as transmission corridor zones, in order to set aside land for the development of future transmission lines.  Additionally, this measure requires that a city or county amend its general plan to be consistent with the commission's designation within 12 months after receiving a notice from the commission.  AB 1059 would require that a city or county that accepts an application for a development project located within a designated transmission corridor zone, notify the commission with in 10 days of receiving the application if proposed developmentproject threatens the potential construction of a high-voltage electric transmission line.  C.A.R. initially opposed SB 1059 because it did not appear to involve landowners in the decision-making process for the development of transmission corridorzones.  Upon further review C.A.R. is comfortable that the public will be involved in the development of the transmission corridor zones, therefore prompting C.A.R. to remove its opposition.3. AB 1020 (Hancock) - Planning: Smart Growth Models
Position: Oppose
This bill would require certain federally-designated metropolitan planning organizations and certain state-designated regional transportation planning agencies to develop and implement improved regional travel models incorporating smart growth concepts and to undertake other related planning activities, thereby imposing a state-mandated local program. The bill would require the department to provide all necessary financial assistance to these agencies. The bill would require all transportation models used by state or regional agencies to be usable on personal computers and to be made available to the public. C.A.R. opposes AB 1020 because it not only requires transportation planning agencies to consider the undefined concept of “smart growth” when planning regional transportation routes and facilities, but it also requires that these agencies consider urban growth boundaries as a transportation solution.E.  California Environmental Quality Act (CEQA)
1. AB 1360 (Hancock) - Institutional Control Sites
Position: Oppose
AB 389, enacted into law last year, gave agencies the discretion to determine who was best positioned to be the lead on the cleanup of a Brownfield site.  AB 389 also streamlined the process and liability protections for those conducting the cleanup.  AB 1360 would require that all residential sites that necessitate ongoing engineering or land use controls be overseen by the Department of Toxic Substances Control (DTSC).  C.A.R. opposes AB 1360 because it allows any agency or member of the public to ask DTSC to determine whether a Brownfield site should be a “public health priority site,” which bypasses all of the due process protections and ignores both the localland use process and the public participation process recognized in AB 389.  Finally, all of the incentives to redevelop Brownfield sites would now be inapplicable to a wide range of sites at the discretion of the agency without the consent of the party who entered into the cleanup agreement.  AB 1360 is the very type of legislation that ensures Brownfield sites won’t be redeveloped. 2. SB 785 (McClintock) - Certification of Interested Parties
Position: Support
The existingCalifornia Environmental Quality Act (CEQA) requires a lead agency to prepare and certify the completion of an environmental impact report on any project that may have a significant effect on the environment.  CEQA also requires that an action or proceeding to attack any act or decision of a public agency, on the grounds of noncompliance with the act, comply with specified procedures and timelines.  This bill would require within 15 days of filing an action to annul any decision of a public agency on the grounds of noncompliance with the act, that the petitioner file a Certification of Interested Persons that lists all persons or corporations, that either have a financial interest in the subject matter of the controversy or in the petitioner; orany other kind of interest that could be substantially affected by the outcome of the action or proceeding.  C.A.R. supports this measure because it creates transparency in CEQA litigation cases by requiring full disclosure of all persons or corporations seeking to challenge a CEQA decision. 3. AB 648 (Margett) - Development Projects: Disclosure Requirements
Position: Watch as Amended (Signed by the Governor)
Existing law requires each state and local agency to compile one or more lists that specify in detail the information that will be required from applicants for a development project, and CEQA requires a public agency, when significant new information is added to an environmental impact report after notice has been given, and consultation has occurred, prior to certification, to give notice again and consult again before certifying the environmental impact report.  This bill would require that these lists additionally include the identity of the person or entity that will ownor operate the project, if different from the person or entity applying for the development permit, and specify that “significant new information” includes, but is not limited to, the initial identification of, or a change in the identification of the person or entity that will own or operate the project.  C.A.R. initially opposed this measure because it would have allowed the denial of CEQA approval based on project ownership or occupancy.  Recently, the author took amendments to remove CEQA from the disclosure requirements, and now only requires project owners, operators or occupants to be disclosed during the permitting process, thus removing C.A.R.’s opposition.F.  California Coastal Commission
1.  AB 771 (Saldana) - Ex Parte Communications
Position: Watch as Amended
Current law allows commissioners at the Coastal Commission to engage in ex parte communications as long as they disclose the communications and give the written materials provided to them to commission staff.  This bill originally attempted to eliminate ex parte communication by making all ex parte communication with the Coastal Commission subject to the Administrative Procedures Act (APA).  C.A.R. opposed this measure because it would have eliminated free and open communications with public agency representatives of the California Coastal Commission. As rewritten on June 2nd, the bill now will only make commissioners violating existing ex parte communication rules subject toa civil penalty not to exceed $7,500. With this revision, C.A.R. has removed its opposition, but will continue to follow this measure. 2.  AB 1524 (Laird) - Property Dedications: Easements
Position: Not Favor
Existing law requires that every gift to the state of real property be approved by the Director of Finance, and that every contract for the acquisition of real property entered into by or on behalf of the state is approved by the Director of General Services. Existing law exemptsfrom those requirements the acceptance by the State Coastal Conservancy of offers to dedicate public accessways, and additionally requires that the conservancy accept any outstanding offer to dedicate a public accessway that has not been accepted by another public agency or nonprofit organization within 90 days of its expiration date. This bill will add conservation easements or open-space easements accepted by the conservancy to the exemption from those requirements, and will require the conservancy toaccept an offer to dedicate a conservation easement, or an open-space easement that has not been accepted by another public agency or nonprofit organization with 90 days of the expiration date of the outstanding offer.  C.A.R. has a not favor position on this measure because although the state Costal Conservancy is not a regulatory agency and therefore cannot place requirements or restrictions upon land owners, the bill does not explicitly restrict government agencies from requiring a conservation oropen-space easement as a condition of allowing development on private lands,3.  SB 929 (Kehoe) - Administrative Actions
Position: Oppose
This measure would require anyone who earns $2,000 in a calendar month representing more then one client per year, who communicates with the Coastal Commissioners, to conform to lobbyist registration requirements of the Political Reform Act of 1974.  Architects, general contractors, civil engineers, biologists, permit expediters and others who periodically accompany applicants and their representatives to meetings with the commissioners to explain technical reports, under this measure, would be required to register as a lobbyist and pay additional fees that are required by the FPPC.  C.A.R. opposes SB 929 because it will discourage applicants for coastal development permits from hiring representation by creating burdensome paperwork, imposing strict reporting requirements, and levying additional fees on applicants and their technical consultants.  SB 929 discourages the Coastal Commission and their staff from interacting with experts and professionals and will hinder the commission’s ability to make well-informed decisions. G.  Planning and Zoning
1. AB 1205 (Blakeslee)- Facial Challenges
Position: Support
Existing law provides that when imposing a fee as a condition of approval of a development project by a local agency, the local agency shall determine whether there is a reasonable relationship between theamount of the fee and the cost of the public facility attributable to the development on which the fee is imposed.  Currently, a developer has a 120-day period to bring a facial challenge to the adoption of a fee by a city or county, and a 180-day period to bring an as-applied challenge.  Builders can often be caught between these conflicting deadline periods because they are often compelled to file an as-applied challenge before they file a facial challenge.  By the time they file a facialchallenge their claim would occur well beyond the 120-day period.  AB 1205 proposes to resolve this conflict by allowing facial challenges to be filed within 180 days of imposition of the fee or approval of the project, and declares that a facial challenge is not a prerequisite to brining an as-applied challenge.  C.A.R. supports this measure because it resolves a “catch 22” that builders face when it comes to bringing a legal action against the imposition of a fee by a local agency.2. SB 725 (Morrow) - Land Use Controls and Just Compensation
Position: Support
Existing law provides for the payment of compensation for the taking of land by eminent domain proceedings, as well as by an action by the owner in inverse condemnation.  This bill would provide that if a state or local public entity enacts or enforces a new land use regulation that restricts the use of private property, and has the effect of reducing the fair market value of the property or interest by 25%, then the owner of the property shall be paid just compensation.  C.A.R. supports SB 725 because property owners should be allowed fair compensation for properties adversely affected by land use regulations.H.  Eminent Domain
1. AB 590 (Walters) – Eminent Domain: Private Property
Position:  Watch as Amended
The eminent domain laws authorize public entities to acquire property only for a public use and the California Constitution authorizes governmental entities to take private property for public use only when just compensation has been paid to the owner.  In the exercise of eminent domain, "public use" does not include the taking or damaging of property for private use.  This bill will amend the Eminent Domain Law to redefine “public use” in the exercise of eminent domain to not include “the taking or damaging of property for private use, including, but not limited to, the condemnation of nonblighted property for private business development.” 2. AB 1162 (Mullin & Salinas) – Eminent Domain
Position:  Watch as Amended
Existing redevelopment law authorizes public entities to seize private property under the power of eminent domain.  This bill would, amongstother things, add a section in law that would prohibit, until January 1, 2008, a public entity from exercising the power of eminent domain to acquire owner-occupied residential real property such as residential properties as single-family homes, duplexes, and individual condominium units, for private use, which is defined in the bell as “any use other than as a public facility or a public works that is owned and operated by the public entity.” The bill would also require the California Research Bureau of the State Library to submit two reports to the Legislature, on or before January 1, 2007, and on or before January 1, 2008, regarding the exercise of the power of eminent domain, and require the California Law Revision Commission to conduct arelated study and submit a report to the Legislature on or before January 1, 2008.3.  ACA 15 (Mullin & Nation) – Eminent Domain: Redevelopment
Position:  Watch as Amended
The California Constitution authorizes governmental entities to take or damage private property for public use only when just compensation, ascertained by a jury unless waived, has first been paid to, or into court for, the owner.  The Community Redevelopment Law, set forth in statute, authorizes a redevelopment agency with the power of eminent domain to condemn property upon a determination that the area is blighted.  That law also authorizes a redevelopment agency to use its power of eminent domain for the acquisition of property in contiguous,unblighted areas within a project area.  This measure would set forth a constitutional provision prohibiting a redevelopment agency from acquiring property through the exercise of the power of eminent domain unless it first makes a written finding that the property contains conditions of both physical and economic blight. 4. ACA 22 (La Malfa) and SCA 15 (McClintock) - Eminent domain: Condemnation Proceedings
Position:  Watch as Amended
The California Constitution authorizes governmental entities to take or damage private property for public use only when just compensation, ascertained by a jury unless waived, has first been paid to, or into court for, the owner. It also authorizes the Legislature to provide for possession by the condemnor following commencement of the eminent domain proceedings upon deposit in court, and prompt release to the owner, of the money determined by the court to be the probable amount of the just compensation.  These resolutions propose to amend theState Constitution to add a condition that “private property may be taken or damaged by eminent domain proceedings only for a stated public use and only upon an independent judicial determination on the evidence that the condemnor has proven that no reasonable alternative exists.”  They would also require that the property be owned and occupied by the condemnor, or leased only to entities that are regulated by the Public Utilities Commission, and used only for the stated public use.  These resolutions also require that if the property ceases to be used for the stated public use, that the former owner or a beneficiary or an heir, who has been designated for this purpose, would have the right to reacquire the property for the compensated amount or its fair market value, whichever is less, before the property may be sold or transferred.5. SB 53 (Kehoe) - Redevelopment
Position:  Watch as Amended
The Community Redevelopment Law authorizes the establishment of redevelopment agencies in communities in order to address the effects of blight, as defined, in those communities and requires those agencies to prepare, or cause to be prepared, and approve a redevelopment plan for each project area. Existing law requires that a redevelopment plan contain certain provisions and authorizes a plan to provide for the agency to acquire by gift, purchase, lease, or condemnation all or part of the real property in the project area.  This bill proposes to add sections to the law to require future redevelopment plans to contain a description of the agency’s program to acquire real property by eminent domain, including prohibitions, if any, on the use of eminent domain, and a 10-year time limit for the commencement of eminent domain proceedings.  The prohibitions may include but are not limited to, owner-occupied residences, single-family residences or any residential property, or any residential real property in specified locations within the project area.6. SB 1099 (Hollingsworth) - Eminent Domain: Agricultural Property
Position:  Watch as Amended
Existing statutory law authorizes public entities, as defined, to acquire property only for a public use. Existing law also provides that a use, purpose, object, orfunction is one for which the power of eminent domain may be exercised where the Legislature has declared by statute that the use, purpose, object, or function is a public use.  This bill would prohibit the exercise of the power of eminent domain toacquire agricultural property, as defined, for public use unless the condemnor either retains direct ownership of the property for the stated public use or transfers the property to a private entity for a public use limited to health care facilities, public utilities, transit facilities including railroads or other common carriers.7. SCA 12 (Torlakson) – Eminent Domain
Position:  Watch as Amended
The California Constitution authorizes governmental entities to take or damage private property for public use only when just compensation, ascertained by a jury unless waived, has first been paid to the owner or into court for the owner. It also authorizes the Legislature to provide for possession by the condemnor following commencement ofthe eminent domain proceedings, upon deposit in court and prompt release to the owner of the money determined by the court to be the probable amount of the just compensation.  This measure, referred to as “The California Homeowners’ Protection Act” would amend Section 19 of Article I of the Constitution of the State to declare that “public use does not include the taking of owner-occupied residential property for private use.”In addition to the measures introduced inresponse to Kelo, the following piece of legislation regarding redevelopment was introduced in early 2005:8. AB 1472 (Coto) – Redevelopment
Position:  Watch as Amended
Existing law limits the effectiveness of a redevelopment plan adopted on or before December 31, 1993, to 40 years from the adoption of the redevelopment plan or January 1, 2009, whichever is later, after which the agency has no authority to act pursuant to the redevelopment plan except to pay previously incurred indebtedness, to comply with provisions governing compliance with an agency’s affordable housing obligations, and to enforce existing covenants, contracts, or other obligations. Notwithstanding these limits on the effectiveness of a redevelopment plan, existing law authorizes an agency to amend that plan to extend the time limit on effectiveness of the plan for a maximum of 10 additional years if the agency finds that significant blight remains within the project area and this blight cannot be eliminated without extending the effectiveness of the plan and the receipt of property taxes.  This bill would authorize an agency to extend the time limit on effectiveness of a redevelopment plan for a maximum of 10 additional years if significant physical or economic blight remaining in the project area may not be reasonably eliminated without the extension of the time.I.  Flood Control
1. AB 802 (Wolk) - General Plans: Flooding in Conservation Elements
Position: Oppose
Currently, thePlanning and Zoning Law requires a city or county general plan to include specified land use and conservation elements, and requires the city or county to use a water agency's water management plan as a source document upon the adoption or revision of its general plan.  Existing law also provides that the conservation element may cover flood control.  This bill would require the land use element of the general plan to also consider any urban water management plan prepared and adopted by an urban water supplier that affects the land covered by the general plan, and would require the conservation element of the general plan to cover flood management, and consider the possible means of using flood water to supplement that supply.  C.A.R. opposes this measure because it will duplicate existing flood risk assessments for life and property, impinge upon local control of land use planning, curtail the construction of housing in areas designated as flood zones, and would require the general plansto include flood-water management planning independent of input from water purveyors.2. AB 1665 (Laird) - Creation of Central Valley Flood Control Board
Position: Watch as Amended
Existing law requires the Reclamation Board to establish and enforce standards for the maintenance and operation of, and to undertake other responsibilities with regard to, flood control works under its jurisdiction.  This bill will require that Reclamation Board take steps to ensure improved safety of levees in the Central Valley.  C.A.R. initially opposed this measure because the original language would have required a building moratorium in all areas not achieving 100-year flood protection and in areas with over 25,000 residents where 200-year flood protection is not achieved, and would require additional point-of-sale disclosures.  C.A.R. is currently working with the author and other stakeholders to re-write the bill, and at this time the point-of-sale language has been removed from the bill. J.  Air Quality
1. SB 44 (Kehoe) - General Plans: Air Quality Element
Position: Oppose
Existing law requires the legislative body of each county and city to adopt a comprehensive, long-term general plan for the physical development of the county or city, and of any land outside its boundaries that bears relation to its planning.  Currently, local governments have the option of adopting an air quality element as part of its general plan, as needed.  This bill would require thelegislative body of each city and county to adopt an air quality element as part of its general plan, or to amend the appropriate elements of its general plan to include feasible implementation strategies intended to improve air quality no later than oneyear from the date of the next housing element revision.  C.A.R. opposes SB 44 because it would force all cities and counties to address new and redundant air quality management responsibilities and obligations that bear little on the goal of improving the state’s air quality and instead would unnecessarily create a more involved and costly general plan process for communities that may not have air quality concerns.  In addition, SB 44 would force communities to elevate air quality concerns above other local needs and priorities, create additional hurdles to urban and infill development and invite additional opportunities for legal challenges by re-triggering the California Environmental Quality Act (CEQA).2. SB 409 (Kehoe) - General Plans: Correlation of Water Supply within Conservation Element and Land Use Planning
Position: Oppose
The Planning and Zoning Law requires the legislative body of each county and city to adopt a comprehensive, long-term general plan for the physicaldevelopment of the county or city, and of any land outside its boundaries that bears relation to its planning.  This bill would require that the water supply portion of the conservation element be correlated with the land use element.  C.A.R. opposes this bill because it duplicates existing requirements set forth in SB 221(Kuehl) of 2001, SB 660 (Costa) of 2001 and AB 2552 (Bates) of 2000, and adds the undefined term “correlation” to the language, which will create another opportunity for NIMBY interests and no-growth advocates to stop critically needed projects and other developments by requiring a revision of general plans, such that they correlate water between the conservation and land use elements. K.  Water
1. AB371 (Goldberg) – Water Recycling
Position: Watch as Amended
The bill would have required the Department of Water Resources (DWR) to adopt and submit to the California Building Standards Commission, a state version of the Uniform PlumbingCode that defined the standards for safely plumbing buildings with both potable and recycled water systems.  C.A.R. opposed this measure because it would have set new precedent by allowing DWR to author and adopt building code standards.  C.A.R.recently achieved amendments that will uphold the role of the California Building Standards Commission as the definitive authority for the development and adoption of uniform building codes in California, removing its opposition. 2. SB 646 (Kuehl) – Wastewater Discharge Requirements: waivers
Position: Oppose
This bill would require the State Water Resources Control Board (SWRCB) to administer and enforce the distribution of permit waivers for waste discharge for waste discharge systems, including residential septic systems, on a regular and short-term basis.  This program would also require routine groundwater monitoring and the payment annual fee in order to acquire a waiver for a maximum term of five years before re-consideration of the waste discharge system is required.  C.A.R. is opposed to SB 646 because it will require individual property owners with septic tanks to apply and pay for a waste discharge permit waiver in order to continue to operate their systems. Furthermore, property owners under this measure are only ensured the right to use their property for the duration of the waiver, and there is no guarantee of renewal.3. SB 773 (Cox) - Groundwater Injection
Position: Favor
Under existing law, the State Water Resources Control Board and the California Regional Water Quality Control Boards prescribe waste discharge requirements in accordance with the national pollutant discharge elimination system (NPDES).  This bill would exempt from the definition of "waste," drinking water that is injected into storage in a groundwater aquifer for later recovery and use, and requires any person who proposes to inject drinking water into a groundwater aquifer for storage to file a report with the regional board.  C.A.R. favors this measure because it will facilitate the use of aquifers for the safe storage of urban water supplies, thus increasing urban water supply reliability year-round.VI.  OtherVII.  Adjournment