Agenda Summary - Land Use and Environmental CommitteeLong Beach Hyatt Regency Hotel
Long Beach, California
Thursday, October 19, 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 AdvocateI.     Opening Comments: Chairman IrvingII.    Action Item - Proposition 84
The committee is being asked what position C.A.R. should take on Proposition 84, which would fund projects relating to water quality, water supply reliability, flood control and coastal protection projects around the state. (See separate paper.)III.    Discussion/Information Items
A.  Report on C.A.R.’s Private Transfer Tax Task Force* (Please see separate paper)B.  Report from Onsite Wastewater Disposal “Septic”Working Group: Current Status of SWRCB AB 885 Draft Statewide Regulations for Septic Systems. A verbal report will be given at the meeting.C.  Report from REALTOR Committee on Air Quality. A verbal report will be given at the meeting.D.  Private-Public Road Dedications Update. A verbal report will be given at the meeting.E.  Proposition 90 – Eminent Domain
Committee leadership met with the leadership from Legislative Committee and C.A.R. staff to explore the implications of Proposition 90. After reviewing the proposition and materials prepared by staff, both groups of committee leadership decided to recommend that C.A.R. adopt an Against position on this ballot proposition.  C.A.R. executive leadership reviewed and adopted the recommendation in late July.F.  Flood Bills Tabled

1. AB 802 (Wolk) – Land use: water supply.  This bill, which has a C.A.R.-watch position, originally would have required the land use element of the general plan to considerany urban water management plan prepared and adopted by an urban water supplier that affects the land covered by the general plan. The bill would have also required the general plan to cover flood management, and consider the possible means of using floodwater to supplement that supply. This measure would have severely limited growth in California by restricting land use in areas characterized as being in a 200-year flood plain. C.A.R. opposed this measure because it would have duplicated existing flood risk assessments impinging upon local control of land use planning, curtail the construction of housing in areas designated as flood zones, and would have required general plans to include flood-water management planning independent of input from water purveyors. C.A.R. worked to achieve amendments to the bill to remove the onerous anti-housing language and instead render the bill an effort to require the conservation element of the general plan to identify rivers, creeks and streams, flood corridors, riparian habitat, and land that may accommodate floodwaters. The revised version of the bill also now only requires the next revision of the housing and safety elements to identify flood hazard zones.  Status: Failed Passage2. AB 1528 (Jones) – Flood control liability.  C.A.R. opposed this bill which would have entitled the state to rights of indemnity and contribution against any local public entity whose actions contributed, or whose failure to act contributed, to the failure of a flood control project when that failure caused property damage or personal injury. This bill would have required local governments in the Central Valley to execute joint liability agreements and share liability for flood related damages to new housing.  C.A.R.opposed this bill because it would have shut down new housing construction in the Central Valley and because it unfairly used housing as leverage to relieve the state of flood damage liability.  Status: Failed Passage3. AB 1665 (Laird) – Floodcontrol.  This C.A.R.-opposed bill required that the 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 have required additional point-of-sale disclosures. The bill was amended to address C.A.R.’s concerns, removing its opposition, but AB 1665 has since been gutted and amended to renew C.A.R.’s opposition. On August 30, AB 1665 was amended to indemnify the state against the type of liability incurred in the Paterno v. State of California decision, by assigning unlimited liability to local governments in the Central Valley for flood related damagers to new housing, even if the local government had no control over the nearby levees. C.A.R. opposed the amendments to AB 1665 because its passage would have shut down home construction in the Central Valley, further exacerbating housing affordability in California.  Status: Failed Passage4. AB 1899 (Wolk) – Flood control liability.  This C.A.R.-watch measure would have required local governments, prior to development, to certify that the property met a 200-year flood protection standard. C.A.R. initially opposed AB 1899 because it did not allow for alternative “non-structural” solutions to flood protection that have already been successfully implemented by several California communities and because, as written, this bill could have shut down home construction in the Central Valley for up to, if not more than, 20 years. This measure was amended to remove the conditions and restriction on infill development and new development located in areas with less than three feet of potential flooding, and for developments of less than 25 units. Additionally, the amendments will continue to allow development to occur if the development can achieve 200-year flood protection within 10 years of subdivision map approval using “structural” (levees) and “non-structural” (elevated-foundation home construction) solutions.  Status: Failed Passage.5. AB 2208(Jones) – Delta levee and conveyance system: water user fee.  This bill, which has a C.A.R.-watch position, requires the Department of Water Resources to conduct a study to identify the persons or entities that benefit from the delta levees, projects levees and conveyance system and report to the Legislature. The bill also requires the department to include in the report recommendations as to those persons and entities on which a user fee should be imposed to create dedicated revenue stream topay for the maintenance of, and improvements to, the delta levees, projects levees and conveyance system.  Status: Failed Passage6. AB 2500 (Laird) – Safety plans.  This bill, which has a C.A.R.-watch position, would have subjected the allocation or expenditure of funds for the upgrade of a project levee that protects an urban area in which more than 1,000 people reside. The requirement would have been that the local agency responsible for the operation and maintenance of the project leveeand any city or county protected by the project levee enter into an agreement to adopt a safety plan within 2 years of the levee upgrade.  Status: Failed Passage7. AB 3022 (Umberg) – Flood control: seller disclosures.  This bill, which has a C.A.R.-watch position, would have created an additional disclosure to notify buyers that the property that they are purchasing is located near a levee and, therefore, faces the potential risk of flooding. C.A.R. was successful in negotiating amendments with the author and sponsors to achieve removed the requirement for additional disclosures. The amended bill would have required that developers provide the first 4 years of flood insurance after the first transfer of the property, and that buyers be provided with a copy of the safety plan developed by cities and/or counties that provides information on what should be done in case of a levee failure.  Status: Failed PassageG.  Flood Control

1. SB 1796 (Florez) – Reclamation board.  This bill, which has a C.A.R.– watch position, would have expanded the jurisdiction of the Central Valley Flood Protection Board to include land use decision making authority that will supersede local government decisions. C.A.R. opposedthis measure because local land use decisions should be made at the local level and not be overruled by a regional agency unqualified to make land use decisions. SB 1796 was amended, at C.A.R.’s request, to remove the land use planning powers of theBoard and will only allow the Board to operate in an advisory role in local flood plain management. With this amendment, C.A.R. removed its opposition and went to a watch position.  Status: On Governor’s Desk2. ACA 30 (Laird) – Local governments and flood control assessments.  This C.A.R.-opposed bill would have changed existing law which prohibits an agency from imposing an assessment if there is a majority protest. Currently, a majority protest exists if the ballots submitted in opposition to an assessment exceed the ballots submitted in favor, with ballots weighted according to the proportional financial obligation of the affected properties. ACA 30 proposed to change the law for protesting a new assessment or increasing an existing assessment, specifically, to maintain, operate, repair, relocate, or upgrade a flood control levee by redefining what constitutes a majority protest to the assessment. This measure would have required that a majority of the ballots submitted in opposition equal more then 50% of total number of ballots mailed to affected property owners in order to achieve a successful majority protest to the assessment. ACA 30 effectively treated unreturned ballots as de facto "yes" votes. C.A.R. opposed ACA 30 because raising the threshold to block an assessment would have made it nearly impossible for a majority protest of these assessments to occur. ACA 30 would have essentially removed the ability for property owners to protest assessments for levee maintenance and repairs.  Status: Failed PassageH.  California Environmental Quality Act (CEQA)

1. AB 956 (Coto) – Hazardous materials release site: public information.  This C.A.R. support if amended bill amended the Carpenter-Presley-Tanner Hazardous Substance Account Act to require an oversight agency to submit to Cal-EPA information regarding all sites for which a remedial action was approved after a specified date. This bill would have required the agency to post this information ona website, by each individual site, in a format readily accessible by the public. The bill was put on the inactive file before C.A.R. could get amendments that would have made the website searchable by address or parcel number.  Status: Failed Passage2. AB 2092 (Hancock) – Hazardous substance release: vapor intrusion.  This C.A.R.-supported bill would compile, and make available on the Environmental Protection Agency’s website, existing data on vapor intrusion sites from a variety of state and local agencies. C.A.R. supports this measure because it would create a free internet resource containing data that is currently only accessible by navigating a bureaucratic labyrinth of agencies and reports, or by paying an environmental reporting company to gather the information.  Status: On the Governor’s Desk3. SB 989 (Senate Environmental Quality Committee) Hazardous materials: bona fide ground tenant.  This C.A.R-supported bill provides a mechanism to limit liability risks associated with those cases where cleanup costs turn out to be substantially higher then the value of the contaminated property. The bill allows for the property owner to enter into an immunity agreement with the Department of Toxic Substances Control,the State Water Resources Control Board, or a California regional water quality control board that would waive provisions of statute and require the property owner to make periodic reports on the progress of the clean-up to the issuing agency. C.A.R. supports SB 989 because it encourages investment in contaminated properties and enhances the landowner’s ability to redevelop Brownfield properties, while minimizing their liability.  Status: On the Governor’s Desk4. SB 1191 (Hollingsworth) – CEQA .   This C.A.R.-supported bill revised the California Environmental Quality Act by establishing a short form environmental impact report that a lead agency would be required to prepare if a project satisfies specified criteria related to housing. C.A.R. supported this bill because it would have made many long-overdue and necessary changes to the current lengthy and often cumbersome CEQA process.  This bill would have resulted in reduced delays and improved clarity and certainty throughout the CEQA process.  In addition, the introduction of the short form for environmental impact reports for urban housing projects would have reduced costs and improve the speed in which much-needed urban-infill housing is provided to communities throughout California.  Status: Failed PassageI.  Native American Sacred Sites

1. AB 2641 (Coto) – Native American grave sites.    This C.A.R-opposed bill would require landowners, upon the discovery of potential Native American remains of 6 or more graves, to ensure that a site is not damaged or disturbed by development until they have consulted with the most likely descendents to determine whether or not the site is a Native American burial ground. If the site is determined to be a burial ground, AB 2641 recommends preserving the remains in place. C.A.R. opposed this measure because it did not clearly define a grave site or allow for the pre-construction agreements, and would have unreasonably restricted the ability of a property owner to mitigate the unexpected finding of Native American remains in a way that would have allowed the development of the property to continue, and required the landowner to initiate in a poorly-defined consultation process.In the final days of session, AB 2641 was amended to provide a clear and reasonable definition of a grave site and clearly defines the scope and length of the consultation process. Unfortunately, the new language in AB 2641 could negatively impact futurefinancing and transactions because the measure does not require recordation that would be picked-up in a title report; thus, C.A.R. maintains its opposition to this measure.  Status: On the Governor’s Desk2. SB 1395 (Ducheny) – Environmental quality: native American sites.    This C.A.R.-watch bill would have required projects, even those exempt from CEQA, that could directly or indirectly affect a California Native American prehistoric, archeological, cultural, spiritual,or ceremonial place, to consult with a Native American tribe at least 45 days prior to acting on the project. C.A.R. opposed this measure because it was internally contradictory. The measure would have canceled out the decision by the lead agency that theproject is exempt from CEQA, create an open-ended consultation process that could string out the CEQA process indefinitely, and would have contradicted C.A.R.’s historic efforts to address these issues early in the general planning process.  In the final days of session the bill was amended to narrow the application of the consultation requirement to government projects, and create a definite timeline in which the consultation must conclude.  With these amendments, C.A.R. removed its opposition.  Status: On the Governor’s DeskJ.  Planning and Zoning

1. SB 983 (Lowenthal): Subdivision map act.  This C.A.R.-opposed bill originally amended the Subdivision Map Act such that if a subdivider, prior to the filingof a tentative map to convert rental units into condominiums, failed to give a 90-day notice to tenants and prospective tenants, then the subdivider would have been required to pay the tenant’s actual moving expenses and the first month's rent in anincreased amount not to exceed $750. C.A.R. was opposed to the longer notice period because it would have unnecessarily delayed the filing of a tentative map. C.A.R. achieved amendments to remove the increased notification period, and increased the maximum expense amount to $1,100 (adjusted to the consumer price index), removing C.A.R.’s opposition. In late June 2006, the author amended SB 983 to also apply to lot line adjustments. Existing law requires that lot line adjustments conform to the local general plan, applicable coastal plan, and zoning and building ordinances, but does not include compliance with a specific plan. SB 983 proposes to require local governments to also determine whether or not a requested lot line adjustment conforms to the specific plan. C.A.R. opposes SB 983 because it is statutorily unnecessary, and introduces added bureaucracy and increased costs on individual homeowners.  Status: On the Governor’s Desk.2. SB 1523 (Alarcon) – Development projects: superstore retailers.  This C.A.R-opposed bill requires superstore retailers to prepare an impact report to be submitted to local governments that includes an assessment of the effect the construction and operation of the proposed superstore retailer will have on retail operations and employment in the area. C.A.R. is opposed to this bill because it would mandate a city or county to discriminate against superstore retailers by requiring retailers with a gross buildable area in excess of 100,000 square feet to comply with reporting provisions which are otherwise not required for smaller-scale development applications.  In addition, SB 1523 constrains local governments by removing their authority to make their own local land use decisions. Instead ofpromoting business in California, this bill not only creates costly hurdles for businesses looking to expand in California it also attempts to dictate to Californian’s the type of shopping experience they should prefer.  Status: On the Governor’s Desk3. SB 1818 (Alarcon) – Attorney’s fees.    This C.A.R.-opposed bill would amend current law to allow local governments to collect attorney’s fees from superstore retailers, should they prevail in court. C.A.R.opposes this measure because it encourages public entity litigation and discourages superstore retailers from filing legitimate claims that challenge local government actions.  Status: On the Governor’s DeskK.  Eminent Domain

1. AB 1162 (Mullin & Salinas) – Eminent domain .   This C.A.R.-supported bill would have prohibited a community redevelopment agency, or community development commission or joint powers agency from exercising the power of eminent domain to acquire owner-occupied residential real property if ownership of the property will be transferred to a private party or private entity. C.A.R. supported this bill because it prohibited the use of eminent domain on single family property for any use other than public use.  Status: Failed Passage
2. SB 53 (Kehoe) – Redevelopment  This C.A.R.-supported bill would require 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 time limit for the commencement of eminent domain proceedings. C.A.R. supports this bill because it requires redevelopment agencies to detail their plans to acquire properties by eminent domain and because it imposes a shorter time limit in which properties can be taken by eminent domain.  Status: On the Governor’s Desk3. SB 1210 (Torlakson) – Eminent Domain.  This C.A.R.-supported bill changes the current Community Redevelopment Law to provide that the time limit of 12 years from the adoption of the redevelopment plan to the commencement of eminent domain proceedings to acquire property within the project area, may only be extended if the redevelopment agency finds that substantial blight still exists in the area and that the blight cannot be eliminated without the use of eminent domain. C.A.R. supports this measure because it maintains the mandate on redevelopment agencies to provide housing in a timely manner,and it shortens the time frame within which eminent domain can be pursued.  Status: On the Governor’s DeskL.  Water Quality

1. SB 646 (Kuehl) – Water Discharge Requirements: waivers.  This C.A.R.-opposed bill would have required 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 have 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. opposed SB 646 because it would have required individual property owners with septic tanks to apply and pay for a waiver in order to continue to operate their systems. Further, property owners under this measure would have only been ensured the right to use their property for the duration of the waiver, with no guarantee of renewal. Status: Failed Passage
V.     OtherVI.    Adjournment