By Leslie Z. Walker and Cori M. Badgley
California’s land use planning structure has long been governed by a philosophy of home rule. Periodically, the legislature has identified specific typical areas for state intrusion: housing policy and airport land use planning are two examples. Among other provisions, SB 375 (Chapter 728, Statutes 2008) reflects a new area of state intervention, brought on by the rising concern over global warming. This time, it is through the regional transportation planning process, with the apparent thinking that once you control the purse strings, local governments will fall into line. SB 375’s major elements are:
- Regional transportation plans (“RTP”) are expanded to include a sustainable communities strategy, to reduce greenhouse gases by coordinating land use and transportation planning. Cities and counties retain land use jurisdiction.
- Local governments now have three, and possibly four years to rezone property to accommodate regional housing needs. Failure to timely do so, alone, is not sufficient reason to deny or condition a development project.
- Transit priority projects are exempt from CEQA if the project can satisfy a myriad of qualifying conditions.
THE SUSTAINABLE COMMUNITIES STRATEGY
The sustainable communities strategy (“Strategy”) is designed around greenhouse gas (“GHG”) emission targets set for each region by the California Air Resources Board (“ARB”). The targets are set for 2020 and 2035. Each of the state’s 18 metropolitan planning organizations (“MPO”) then designs a land use pattern, to enable the region to achieve those emission targets. The MPO must quantify the reductions the Strategy will achieve and submit the Strategy to the ARB for approval. If the Strategy is rejected, the MPO must revise it to meet the target.
The ARB first sets regional GHG emission targets (“Targets”) that each MPO must achieve through its Strategy. No later than January 31, 2009, the ARB must appoint a Regional Targets Advisory Committee (“Committee”) to recommend factors to be considered and methodologies to be used for setting Targets. The committee will submit its recommendations to the ARB by September 20, 2009; thereafter ARB will develop the Targets, taking into consideration both the Committee recommendations and other factors. These other factors include technical information provided by the MPOs and the emission reductions to be achieved by improved vehicle emission standards, changes in fuel composition, and other measures adopted and proposed to reduce greenhouse gas emissions from other GHG emission sources. By September 20, 2010, ARB will provide the Targets to each affected region. Draft Targets will be available on or before June 30, 2010.
Sustainable Communities Strategy
MPOs will design Strategies to achieve the 2020 and 2035 emission targets set by ARB. The Strategy is essentially an integrated land use and transportation plan designed to reduce reliance on the automobile, thereby reducing GHG emissions. The law details a number of issues that must be included in the Strategy. At the Strategy’s core is the requirement that MPOs:
set 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 emission 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. (Gov. Code, § 65080, subd. (b)(2)(B)(5).)
SB 375 does not grant the land use power to implement this development pattern to the MPO or any other regional government. The law explicitly retains land use authority to the cities and counties: “[n]othing in the sustainable communities strategy shall be interpreted as superseding the exercise of land use authority of cities and counties within the region.” (Gov. Code, § 65080, subd. (b)(2)(J).) Transportation funding, of course, is the carrot dangled in front of cities and counties to conform their general plans to the Strategy.
The Strategy must include a number of additional considerations, which are largely redundant to the existing RTP and housing element requirements. The Strategy must identify:
- the general location of uses, residential densities, and building intensities within the region;
- areas within the region sufficient to house the entire population of the region;
- areas within the region sufficient to house an eight-year projection of the regional housing needs for the region; and
- a transportation network to serve the transportation needs of the region.
THE HOUSING ELEMENT
The housing element provisions of SB 375 provide some relief to both local governments working to rezone property to accommodate regional housing needs and developers awaiting local government action.
Extensions for Local Government
The law provides some relief for local governments from the existing timelines for rezoning property to accommodate regional housing needs.
Under existing law, the housing element must contain “[a]n inventory of land suitable for residential development, including vacant sites and sites having potential for redevelopment.” (Gov. Code, § 65583, subd. (a)(3).) If this inventory does not identify an adequate number of sites to accommodate the need for households of all income levels, the housing element must identify sites to be rezoned to accommodate the housing need.
SB 375 gives local government three years after the housing element is adopted to accomplish the necessary rezones. If the housing element is not adopted within 120 days of the statutory deadline to do so, the rezoning shall be accomplished 120 days from the statutory deadline.
Local agencies may receive an additional one-year extension if they complete 75 percent of the rezone designed to accommodate low and very low income households within the above timelines. In order to receive this extension, the legislative body must hold a public hearing and adopt a resolution and findings concluding that the local government has been unable to complete the rezone because of:
- action or inaction beyond the control of the local government or any state or federal agency; or
- infrastructure deficiencies due to fiscal or regulatory constraints; or
- the local government must undertake major revisions to its general plan in order to accommodate the Strategy.
Local Government Penalty
SB 375 penalizes a local government delinquent in accomplishing the necessary rezone. In the event that a local government fails to complete the required rezoning within the mandated timeframes, and a developer proposes a residential project on one of the sites to be rezoned, and the project complies with applicable, objective general plan and zoning standards and criteria, then local government discretion with respect to the application is severely restricted. In those circumstances a city or county may not disapprove a housing development nor require a conditional use permit, planned unit development permit, or other locally imposed discretionary permit, or impose a condition that would render the project infeasible.
A local government may only disapprove the development if it makes written findings supported by substantial evidence that the project would have a specific adverse impact upon public health or safety and the only feasible way to mitigate or avoid the adverse impact is to disapprove the project. The applicant or any interested person may bring an action to enforce this subdivision.
The law requires that when each council of governments develops the regional housing needs allocation, it must do so in a manner that is consistent with the Strategy and the RTP. The resolution approving the allocation must demonstrate this fact.
SB 375 provides some reprieve for local agencies not located within regions covered by MPOs or regional transportation agencies, allowing those local agencies to update their housing elements as appropriate, but the update must occur not less than every eight years, rather than every five years.
The law provides a CEQA exemption for a narrow group of transit priority projects. A transit priority project:
- contains at least 50 percent residential use; and
- provides a minimum net density of at least 20 dwelling units per acre; and
- is within one-half mile of a major transit stop or high quality transit corridor.
In order for the transit priority project to qualify for the exemption, the legislative body must hold a hearing and find that the project satisfies a list of 17 environmental, housing, and public safety conditions and criteria, representing the needs of every imaginable interest group. While the exemption is intended to encourage the development of transportation priority projects, the conditions are cumbersome and the exemption may have limited effect. For local governments, a more effective strategy to encourage similar projects would be to include them in the specific or general plan so that developers can take advantage of the streamlined environmental review available under CEQA Guidelines sections 15162 and 15183.
One of the greatest concerns with respect to SB 375, is how will MPOs pay for Strategies. According to ARB, $180 million in grants and loans will be available for the development of Strategies.
- Although MPOs cannot regulate land use through SB 375, cities and counties wanting to qualify for transportation funds ought to heed the designs of the sustainable community strategy.
- Local governments will benefit from the provisions extending the timeline for the rezoning of land to provide an adequate number of sites to accommodate households of all income levels.
- Local governments should take caution that failure to timely complete development projects, as defined, may severely restrict that local government’s discretion with respect to applications for projects proposed on the property designated for rezoning.
- Although the addition of another CEQA exemption is positive, proving the conditions necessary to qualify for the exemption will be highly technical and local governments will do equally well to adopt general plans and associated EIRs that plan for the types of development the region intends to encourage. This way, future residential development projects may tier off the general plan EIR, and use existing strategies such as specific plans (Guidelines § 15162) and consistent zoning (Guidelines § 15183) as tools to expedite CEQA review on specific projects.
Leslie Walker and Cori Badgley are associates at Abbott & Kindermann, LLP. For questions relating to this article or any other California land use, real estate, environmental and/or planning issues contact Abbott & Kindermann, LLP at (916) 456-9595.
The information presented in this article should not be construed to be formal legal advice by Abbott & Kindermann, LLP, nor the formation of a lawyer/client relationship. Because of the changing nature of this area of the law and the importance of individual facts, readers are encouraged to seek independent counsel for advice regarding their individual legal issues.
 A housing development project for the purposes of this section is a project to construct residential units for which the project developer provides sufficient legal commitments to the appropriate local agency to ensure the continued availability and use of at least 49 percent of the housing units for very low, low and moderate income households with an affordable housing cost or affordable rent.