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In the latest twist in the infamous Terraces of Lafayette development project, an appellate court has ruled against a citizen group that sought to shut down the city’s approval of the apartment project under the Housing Accountability Act – a move that took place when the developer asked to revive an old application following approval of a single-family project on the same site. The SaveLafayette group argued that the revived application, while consistent with the general plan and zoning at the time of its submission in 2011, was inconsistent with the general plan and zoning in 2018 – because the city had in the meantime altered those documents to accommodate a smaller project – and for that reason the city could not approve a project that conflicts with the general plan and zoning. But the First District Court of Appeal concluded that the Housing Accountability Act prevails in this case. Despite the intervening approval of a smaller project, the court wrote, the developer “got a complete project application on file in 2011, and the HAA requires that such a project be assessed against 2011 general plan and zoning standards.” (The opinion was written by Presiding Justice Alison Tucher.) The appellate court also ruled against Save Lafayette on a wide variety of issues under the California Environmental Quality Act. The portion of the decision regarding the Housing Accountability Act was published, while the portion regarding CEQA was not. The Terraces saga gained widespread attention early this year when it was recounted in Conor Dougherty’s book  Golden Gates . Over the years, the project’s size has wavered between 44 units and 315 units. Some local residents at one point favored the diminutive version, while housing advocates insisted that the project accommodate as many residents as possible – and famously sued the city, unsuccessfully, to force the larger project. (You can read the whole shaggy-dog story in CP&DR ’s previous coverage here .) The 22-acre parcel of land is located on a hillside near the Pleasant Hill Road interchange on Highway 24 in Lafayette. In 2011, O’Brien Land Company submitted an application to build a 315-unit apartment building. An environmental impact report was completed in 2013 and the planning commission recommended denial of the project.

Is it time to stop passing new housing production laws and consolidate the ones we already have? No matter whether they are agree or disagree with the goals of the new laws – and there are plenty of people on both sides – local planners’ heads are spinning trying to keep up with what’s going on. And yet, pro-housing legislators keep introducing new bills, hoping to take credit for any bump in housing production. (According to some sources, part of the reason the Legislature has called for increased reporting requirements under the Annual Progress Reports is so that legislators can boast about what the laws they carried are doing. See our recent coverage on APRs here .) The truth is that it’s still too soon to say whether these laws are working. But it may be time to consider whether they should be consolidated in a way that simplifies the housing production effort. Consider two possibilities, one involving the newly powerful and controversial “Builder’s Remedy” (see previous CP&DR coverage here and here ) and the other involving SB 9. Although it’s been embedded in law for more than 30 years, the Builder’s Remedy caught everybody by surprise when it was heavily used in Santa Monica earlier this year because the city’s housing element had not been approved yet by the state Department of Housing & Community Development. But should developers be able to, essentially, build an unlimited amount of housing (assuming affordable housing goals have been met) because the Housing Element hasn’t been approved? After all, there are already other laws that provide the ability to build above allowed zoning while providing affordable housing under certain circumstances – specifically, the Density Bonus Law, which has proven to be very powerful in its own right in recent years. In fact, UC Davis law professor Chris Elmendorf, perhaps the most insightful analyst of the new housing laws, has proposed rolling the Builder’s remedy into the Density Bonus law. In his invaluable primer on the builder’s remedy , published last spring, Elmendorf proposed eliminating the Builder’s Remedy and replacing it with a 100% density bonus (with some alternatives) in cities that are do not have compliant housing elements. He proposes calling the new option the “noncompliant-city” density bonus. “This reform would reasonably limit the size of builder’s remedy projects, in keeping with the Least Cost Zoning Law’s norm that cities not be forced to zone parcels in already-developed residential areas for more than twice the density of adjoining parcels,” he writes. “This reform would also resolve the conflict between the builder’s remedy and the HAA’s (Housing Accountability Act) savings clause for ‘development standards,’ as the Density Bonus Law has a well-established framework governing which standards may be applied to a density-bonus project. Specifically, cities must waive any development standard that ‘physically precludes’ the density of the project (unless it’s necessary for health/safety) and the developer may claim other incentives and concessions depending on the share of affordable units in the project. (Gov’t Code § 65915(d) & (e).)” Significantly, he adds: “It’s important that the noncompliant-city density bonus be substantially larger than the regular density bonuses available in cities whose housing plans comply with state law. The lawmakers who created the HAA builder’s remedy back in 1990 envisioned it as a powerful inducement for cities to achieve housing-element compliance. It will only have this effect if local officials fear being forced to approve projects they want to deny. In other words, why deal with these two laws when you can combine them, still provide some options for developers in noncompliant cities, and resolve conflicts between the laws at the same time? Then there’s SB 9, the law that makes it easier to build two houses on each single-family lot and split each single-family lot in two. This law really freaked out local governments and local planners when it passed. And there was a lot of analysis, including this report from the Terner Center that says SB 9 would make 700,000 new homes feasible in California that wouldn’t have been permitted previously. But, as far as I can tell, SB 9 isn’t getting a lot of traction. Part of the reason may simply be: Why bother with SB 9 when, under current law, you can drop an accessory dwelling unit in your backyard with ministerial approval? The truth of the matter is that building a duplex or a small-scale multifamily project is way more complicated than adding an ADU – and may not be worth the additional trouble . Indeed, there’s been a lot of talk about how the ADU movement will simply consume SB 9. (This may be especially true in San Diego, where the “endless ADU law” allows, essentially, construction of a small multifamily building on a single-family lot so long as half the units are affordable.) There’s a difference, of course: Building a duplex is not the same as dropping an ADU in your back yard, and the lot split part of SB 9 may have value beyond simply adding an ADU to an individual single-family parcel. But you get the idea. With so many laws having been passed in the last few years, it may be time to stop and take a breath – not just to give locals a chance to catch up, but to streamline the laws so that the whole housing production effort takes on a simpler and more elegant cast.

Los Angeles County Creates Office to Address Environmental Justice The Los Angeles County Board of Supervisors has established the Office of Environmental Justice and Climate Health intended to support communities, particularly those that are low-income or of color, that face relatively severe burdens from climate change and pollution. The office will tackle issues such as freeway and air pollutants from diesel emissions, industrial polluters such as recycling plants, and heat islands that have harmed communities with less greenery and more asphalt. By collecting data and working with other groups to develop policies and strategies, the agency has committed to ensuring that corporations are responsible for the dangers they have imposed on California residents and that those who have faced the worst impacts will be prioritized. (See related CP&DR coverage .) Feds Grant Permission to Remove Dams on Klamath River After decades of discussion, federal officials approved the demolition of four aging dams along the Klamath River, hopefully restoring hundreds of miles of river water for native salmon and other wildlife and improving water quality across the California-Oregon route. The move allows PacifiCorp energy company to avoid costly facility upgrades while relying on a Proposition 1 water bond that will fund deconstruction, which will mark the first time in over a century that the river flows without interruption once completed. The $500 million demolition process may start as soon as next year, beginning with the smallest dam, and is intended for completion by the end of 2024. Coastal Commission Approves Another Desalination Plant The Coastal Commission approved a plan to develop a desalination plant for Monterey Peninsula, though not without contention about the role of desalination as a solution to worsening drought crises across California. Though the project would transform seawater from off the coast of the city of Marina, the process requires heavy energy use and a high cost, with residents expressing that the $300 million project will increase water rates by about 50%, becoming an environmental justice concern. Meanwhile, California American Water is attempting to minimize the impact on wildlife by treating toxic material produced in the desalination process before it returns to the ocean. If completed, the plant would contribute 40% of the water supply for Monterey, Carmel-by-the-Sea, Pebble Beach, and other nearby cities. CP&DR Coverage: Local Ballot Measures Among over 50 local land use measures proffered on city, council, and special district ballots on November 8 — the most in recent memory — measures that called for financing and/or development of affordable housing were approved widely and by wide margins. Measures that sought to accommodate more housing via general plan updates and new zoning--changes likely to be palpable to residents--had mixed results. At least ten measures centered on questions that potentially bear on cities’ abilities to adopt housing elements and zoning codes to meet their Regional Housing Needs Allocation goals. In some cases, city councils presented referendums asking voters to ease the way for planners to zone for their respective housing allocations. In other cases, slow- and no-growth initiatives, typically placed on ballots by citizen groups, would limit the densities in key locations. Quick Hits & Updates Decreasing households sizes, prompted by the pandemic and remote work, the dangers of exposure, and increased migrations, have multiplied the number of households, leading to more housing units in demand, according to recent analysis from the Public Policy Institute. With this data, researchers found that new households are outpacing new housing supply. Stanford University has its eyes on a 46-acre property owned by Notre Dame de Namur University with the intention to transform the site for its own use. While its exact plans remain unknown, the university has said it hopes to add 200 housing units and 1,350 parking spaces. Three oil companies must pay the Environmental Protection Agency nearly $50 million for the cost of cleaning up the McColl Superfund Site in Fullerton after a federal appeals court upheld a previous decision. Now, those responsible for the damage, rather than taxpayers, will pay for the EPA's removal of 97,100 cubic yards of toxic waste at the site. The California Air Resource Board will focus a $2.6 billion investment in sustainable transportation in low-income communities and neighborhoods where pollution is disproportionately high. The investment will prioritize zero-emission transportation systems, bike- and car-sharing, and consumer rebates for electric vehicles to help low-income residents purchase clean cars. The Builder's Remedy has been invoked in the small Los Angeles County city of Hawaiian Gardens, as a developer has proposed a 13-unit project that was previously rejected by the city over parking and commercial space concerns. The new application includes three affordable units, in line with the 20 percent affordability requirement. A judge has ruled against a developer who says his real estate companies should have received compensations for payment losses that resulted from pandemic-induced emergency tenant protections in Los Angeles. The judge said that the city did not "take" private property when it approved an eviction moratorium, as suggested by the developer.

CP&DR Vol. 37 No. 11 November 2022

Not long ago, fans of mass transit in California had to be very patient. An entire decade could go by without the opening of a major transit line in California.

Apparently there are limits to exemptions under the California Environmental Quality Act – at least in San Francisco. When St. Ignatius High School in San Francisco’s Outer Sunset District proposed erecting stadium lighting on 90-foot poles, the Board of Supervisors exempted the project from CEQA, based both on the Class 1 categorical exemption (existing facilities) and the Class 3 categorical exemption (minor structures). Neighbors sued, claiming the lighting project didn’t qualify for the exemptions. San Francisco Superior Court Judge Rochelle East ruled in favor of the city – but in a ruling on November 18, the First District Court of Appeal reversed Judge East’s ruling. Though it was originally unpublished, the ruling was published by the First District on December 6, meaning it can be used as precedent. Temporary lights already exist at St. Ignatius. The permanent lights would be mounted on four 90-foot light poles. In approving the project, the Board of Supervisors placed significant restrictions on the use of the lights, including requiring that they be turned off at 8:30 p.m. except for 15 nights a year, when they could stay on until 10 p.m.

State Seeks Carbon Neutrality by 2045 The California Air Resources Board released its plan for achieving carbon neutrality by 2045, a proposal that relies on increased electric vehicle use and renewable energy such as wind and solar--in addition to many land-use initiatives already underway. According to state law, officials must plan to reduce emissions by 48% by 2030 and 85% by 2045, and their newest proposal invests in clean energy sectors that will promote economic growth. Officials also plan to implement prescribed burning to minimize wildfires and their emissions. However, as the world's fourth largest economy, California has a lot to achieve; by 2020, emissions had only reached 14% below 1990 levels. If approved by the air board at its December 15 meeting, the plan will move forward, but experts have criticized the strategy for its reliance on other agencies and failure to consider bureaucratic obstacles. The final proposal is available to the public online. Burbank to Face Another SB 35 Housing Proposal Now that Burbank has settled its SB 35 lawsuit with a developer who wants to build housing at the Pickwick Bowl, another developer in the Rancho neighborhood has applied for SB 35 approval of a housing project. Butterfly Gardens LLC has switched its proposed project from 23 office pods to 21 townhome units under SB 35 on a parcel almost adjacent to the Los Angeles Equestrian Center. Proposed redevelopment of the Pickwick Bowl site in the same equestrian-oriented neighborhood stimulated a major battle over whether SB 35 applied. (See previous CP&DR coverage here and here .) Residents Sue Vallejo over Supportive Housing Project Vallejo is facing a lawsuit from two American Canyon residents who are opposing the city's 48-unit supportive housing project due to environmental, traffic, and noise burdens, claiming that Vallejo violated the CEQA when it approved the project with an exemption from CEQA review. The two residents also suggest that the project, with its 48 studio apartments, will detract from the existing single-family residential neighborhood. Vallejo approved the project one month before the lawsuit, along with a deed restriction to ensure its status as a supportive housing project for the next 55 years and an acquisition agreement that authorizes the city to acquire the property as soon as construction is completed. State Refines Tsunami Hazard Maps & Evacuation Routes The California Geological Survey has introduced new tsunami hazard area maps that measure tsunami risks and plans for evacuation routes in Ventura, San Diego, Marin, Napa, Santa Cruz, Solano, and Sonoma counties. Los Angeles and Orange counties, as well as eleven others, have received updates over the past year. While changes in risks remain minimal from thirteen years ago, the new maps expand upon those last published in 2009 with new data and technologies. The state has reiterated that tsunamis are not a major threat in California, though preparedness is always important considering the 26.3 million residents who live along the California coast. (See related CP&DR coverage .) Two California Rivers Named "Most Endangered" American Rivers  announced its list of the United States' ten rivers that are most endangered due to global warming and environmental injustice in 2022. At the top of the list, the Colorado River, which reaches California's southeast border and provides water for 40 million U.S. residents, was spotlighted for its declining water levels that have threatened the lives of 30 federally recognized Tribal Nations and seven states. Meanwhile, the Lower Kern River took seventh place, and the Los Angeles River came in ninth place. American Rivers also recommends several actionable solutions, including empowering Trial Nations' and frontline advocates' leadership to propel racial and economic justice as related to water security. CP&DR Coverage: Ballot Measure Roundup Last week, voters in cities across the state faced the choice of whether or not to make planners’ lives harder. In most cases, voters rejected anti-housing measures and approved pro-housing measures—mirroring state legislators’ enthusiasm for policies that promote housing. Among over 50 local land use measures proffered on city, council, and special district ballots on November 8 — the most in recent memory — measures that called for financing and/or development of affordable housing were approved widely and by wide margins. Measures that sought to accommodate more housing via general plan updates and new zoning--changes likely to be palpable to residents--had mixed results. Quick Hits & Updates A lawsuit from seven San Diego residents claiming that city officials are responsible for heightening generational poverty and segregation by clustering low-income housing in less wealthy neighborhoods will move forward. The residents argue that the city's policies are out of compliance with state and federal housing requirements. Responding to housing pressures, the Santa Cruz City Council has approved in a 5-2 vote new objective design standards and zoning changes. The city will now have material and tree requirements and will update zoning from community commercial to high- and medium-density mixed use in over 350 parcels. Once an environmental review is conducted on the redevelopment of San Diego's central Embarcadero, including its Seaport proposal, Port Commissioners will vote on whether or not to spend $3.5 billion on the megaproject. The development would include 16 acres of green and open space, over 2,000 hotel rooms, 230,000 square feet of retail and restaurant space, piers and marinas, an event center, a tech campus, an aquarium, and much more. The League of California Cities is voicing opposition to an anti-local ballot measure that is slowly moving forward to the November 2024 ballot. The California Business Roundtable ballot measure, composed and advanced by several major corporations, would primarily reduce local taxing authority. Oakland officials are considering implementing an enhanced infrastructure financing district that would fund affordable housing and infrastructure improvements throughout the city using property tax revenue. Officials have suggested they will primarily invest in Black neighborhoods that have seen severe impacts from racist planning policies. Brightline West's high-speed rail extension from Rancho Cucamonga to Cajon Pass is moving forward and under environmental review, with public hearings having occurred on November 12 and 15. The momentum is pushing forward Brightline's greater plan for a rail line from Los Angeles to Las Vegas. Nonprofit group Trust for Public Land has purchased a property along the Ventura County coast from the original private owners for $25 million with the intention to hand the acreage over for protection to the Santa Monica Mountains National Recreation Area. The Hoopa Valley tribe has filed a lawsuit against the federal government, claiming that the Biden administration has allowed for the destruction of the northwestern Trinity River that it depends on. Additionally, the tribe argues that the administration has allowed contractors to extract water without contributing to restoration projects. Los Angeles has completed the most apartment conversions this year nationwide, according to a report from Rentcafe. The city transformed offices and commercial buildings into 1,242 units and also leads in pending conversions, with 4,130 apartments planned for completion. Billionaire MacKenzie Scott unexpectedly donated $2.4 million to the Greater Sacramento Urban League, a nonprofit seeking to construct a mixed-use housing development in Del Paso Heights. This is the largest donation offered to the nonprofit, which typically offers job training and housing assistance. Brightline West will purchase five acres of land in Rancho Cucamonga to develop the Cucamonga transit station along the high-speed rail from the Inland Empire to Las Vegas. The Florida-based company is in the process of developing its 170-mile interstate electric train along the 15 Freeway. Between 2011 and 2020, the southern Sierra Nevada lost over one-third of its forests due to wildfires, drought, and bark beetle infestations. Due to the reduction in density, thirty percent of conifer forests in the area are no longer considered forests. The Indio City Council has approved its first comprehensive zoning update since the 1990s. The Unified Development Code, which aligns with the 2040 General Plan, is intended to allow for more a more livable and vibrant city.

Short-Term Rental Ordinance Doesn’t Violate Vested Rights.

Placer County Supervisors Reject Resort Development at Olympic Valley A large development proposed at Tahoe's Olympic Valley, adjacent to Palisades Tahoe ski area, will not move forward after the Placer County Board of Supervisors unanimously voted to reverse its approval in response to a lawsuit from environmental nonprofit Sierra Watch. The developer, Alterra Mountain Company, intended to construct high-rise condo hotels, a rollercoaster, and a 90,000 square-foot waterpark, all on a massive scale that would significantly impact the mountainous landscape and its ecosystems. In response, residents and volunteers fought against the project alongside Sierra Watch to prevent further damage to the area, increased traffic, reduced workforce housing, heightened fire risk, and restricted water supplies. (See related CP&DR coverage .) Report Contradicts S.F. Supervisors' Claims about Controversial High Rise Proposal The draft environmental impact report for 469 Stevenson, a proposed 495-unit San Francisco housing development, suggests that concerns from the Board of Supervisors about gentrification and displacement are unfounded, largely because the development is replacing a parking lot and therefore does not have a direct impact. While UC Berkeley researchers suggest 10 to 41 households may be indirectly displaced, the report indicates affordability requirements, such as the inclusion of 73 affordable units and $8 million for other low-income projects, will minimize impacts. In response to arguments that the project would harm historic and cultural resources and pose an earthquake safety risk, the report offered mitigation measures for heavy machinery used during construction and emphasized that the foundation would be seismically safe. (See related CP&DR coverage .) 700,000 Acre National Monument Proposed Southeast of Joshua Tree National Park A new national monument intended to identify 700,000 desert acres as land for recreation and protect ecosystems and important cultural and historical sites may soon be placed along the southern edge of Joshua Tree National Park. The initiative involves the Chuckwalla National Monument, which gets its name from a lizard that lives in the Sonoran and Mojave Desert. The Protect California Deserts campaign, which is behind the move, is hoping to create a resource for the surrounding community and additionally plans to add 20,000 acres of state land to the national park. In order to come to realization, the Biden administration must issue an executive order, or Congress would need to approve the monument. California Coast Faces Increasingly Rapid Sea Level Rise Sea level rise is accelerating at different rates along the California coast, with Humboldt Bay experiencing the fastest rate on the West Coast, according to a new report from the California Ocean Protection Council. Humboldt Bay's decline is due to tectonic activity allowing the coast to sink, which could lead to a one foot rise by 2030 and 3.1 feet by 2060. Intense storms, also a result of climate change, are exacerbating the issue. Homes, wastewater treatment plants, part of Highway 101, and a nuclear waste storage facility could all face consequences. (See related CP&DR coverage .) CP&DR Coverage: Deep Dive into Redondo Beach "Builder's Remedy" Project Amid Redondo Beach's longstanding aversion to new development, a developer purchased an outdated power plant in 2018, and in August submitted a preliminary proposal for One Redondo, a large mixed-use development that includes a hotel, retail and office spaces, 22.5 acres of green space, and, most notably, 2,290 housing units. Importantly, 458 of which are low-income. The combined projects have drawn criticism from both city officials and residents, many of whom have long opposed the development of housing in part on the grounds that, regardless of housing pressures in coastal California, more residents will strain the city’s streets. “Builder’s Remedy” laws, codified primarily in the 1990 Housing Accountability Act and put into play by ambitious Sixth Cycle RHNA goals, may enable the project might go forward whether the city likes it or not. Quick Hits & Updates After hearing hours of public comments, Beaumont officials unanimously rejected a general plan amendment that would have permitted a proposal for a 1.2 million square-foot warehouse project called Summit Station's to move forward. In response to complaints from homeowners, the San Diego Planning Department has formulated a plan to redefine "transit priority areas." The change would include a new category, "sustainable development areas," which identifies areas within a one mile radius along pedestrian pathways rather than a half-mile around a transit stop to ensure that locations are accessible. The homeowners remain unhappy, but city officials are concerned they just want to reduce housing density overall. Five California tribal nations will reclaim stewardship over coastal land with $3.6 million in state support. Over 200 miles of coastline and marine ecosystems will receive protection from the tribes as part of the Tribal Marine Stewards Network. The tribes plan to monitor salmon populations, test for toxins, and pass on knowledge to future generations. The California Association of Realtors has released an apology for its part in worsening racial segregation. The group is now working to confront its history, collaborating with nonprofits that focus on racial equity, supporting a bill that would overturn a law that complicates affordable housing construction, and committing to improving intergenerational wealth for Black households. The new nine-mile Arrow train service from San Bernardino to Redlands is open for riders. The train will operate over twenty trips per day and one daily express train between Downtown Redlands and Los Angeles' Union Station. (See related CP&DR coverage .) The Napa City Council has voted unanimously to adopt its 2040 General Plan, which includes significant input from the General Plan Advisory Committee (GPAC), formed to improve community outreach. The GPAC's members include local residents who collaborated with city staff. Gov. Gavin Newsom's approval of a bill that prohibits new oil and gas wells from operating within 3,200 feet of community areas has been met with a referendum proposition to reverse the law. A lobbying firm that represents Exxon Mobil and Chevron has started gathering the 623,000 signatures it needs to place the proposition on the 2024 ballot. Since San Francisco will not be able to meet a rail loop construction deadline, the city must return a $15 million grant from the federal government intended to help the city make Market Street car-free. Construction on the F loop has been indefinitely postponed.

In the latest legal twist in a long-running development battle, a judge in Santa Cruz has ruled that the University of California did not err in its environmental review of a student housing project that will infringe on a prominent meadow on the campus.

While Santa Monica has been contemplating the impact of a proposed 4,000 units that may be thrust upon it by as many as 15 “Builder’s Remedy” projects, nearby Redondo Beach – another coastal city that is similarly wary of development – may receive more than half that number of units in the form of a single project. On August 10, the Department of Housing and Community Development declared the city’s Housing Element out of compliance relative to its Sixth Cycle Regional Housing Needs Assessment numbers. That determination created the opportunity for developer Leo Pustilnikov to file plans for a 2,290-unit project on a parcel he has long owned and leapfrog over longstanding city objections. For decades, the 49-acre parcel, which is one of the most attractive pieces of beachfront real estate in Redondo Beach — or anywhere else in California — has been occupied by the AES power plant. The plant will continue operations into 2023, though it has been slated for decommission for some time, in part due to its once-through cooling system which cycles ocean water in and out of the plant, stressing the local ecosystem. Pustilnikov, acting through an LLC, purchased the property in 2018, and in August submitted a preliminary proposal for One Redondo, a large mixed-use development that includes a hotel, retail and office spaces, 22.5 acres of green space, and, most notably, 2,290 housing units. Importantly, 458 of which are low-income, meeting the Builder’s Remedy 20% affordability requirement. This followed a proposal he submitted in July for a smaller redevelopment project across the street.

Lincoln EIR Inadequate on Conservation and Transit