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The First District Court of Appeal has shot down an attempt by citizens in Venice to force the City of Los Angeles to abandon the so-called “Venice Sign-Off” process, which allows small projects in Venice to be approved with planning director approval. Whereas the citizens argued that the process was impermissibly ministerial, the Court of Appeal ruled that the opposite – that the Venice citizens were essentially trying to undermine the Venice Specific Plan by attacking a ministerial process that implements the plan. Venice Coalition to Preserve Unique Community Character v. City of Los Angeles , No. B285295 (January 9, 2019).

Cities are using infill exemptions from CEQA more often, and citizen groups are fighting the exemptions around the state. But as a new appellate ruling from St. Helena reinforces, when the citizens group challenge the infill exemptions in court, they usually lose. The St. Helena case revolved around the use of a Class 32 infill exemption under the California Environmental Quality Act guidelines, which exempts infill projects from CEQA assuming they generate no traffic, noise, air quality, or water quality impacts. This is the exemption that was used, for example, by the City of Berkeley in the Berkeley Hillside case . In the case from St. Helena, the city had amended its housing element and zoning ordinance to require only review of design aspects only for projects included in a “high-density residential” area. Landowner Joe McGrath proposed an eight-unit project that meet the city’s requirements in the zone. The city conducted design review on the project but otherwise invoked the infill exemption. Nearby residents called for an environmental impact report during the approval process, and then organized as McCorkle Eastside Neighborhood Group in order to sue. The case generated considerable local controversy , with the developer accusing the lawyer for the neighbors of a cozy relationship with one of the city council members and also offering to donate funds to a nonprofit housing group if the lawsuit were dropped. But the city prevailed in both the trial court and the appellate court. On appeal, the neighbors made several arguments, including (1) that the city council had impermissibly delegated CEQA actions to the planning commission; and (2) that the fact that the city conducted a discretionary design review process meant the entire project approval process was discretionary, opening up CEQA. The appellate court dispatched both these arguments quickly. On the first argument, the court wrote: “ he unelected Planning Commission found the project exempt and appellants took an appeal to the full elected City Council. The City Council held a full hearing and issued findings on this appeal. There was no improper delegation of the City’s authority under CEQA.” The court added: “ he City Council in this case did act—just not in the way that appellants had hoped.” On the second argument, the court ruled that previous case law does, in fact, require that any discretionary action opens up the whole project to CEQA – in some circumstances. Specifically, “only when the discretionary component of the project gives the agency the authority to mitigate environmental impacts,” which was not the case here. The Case: McCorkle Eastside Neighborhood Group v. City of St. Helena , A153238 (January 10, 2019). The Lawyers: For McCorkle Eastside Neighborhood Group: Mathew D. Hinks, Jeffer Mangels Butler & Mitchell, MHinks@jmbm.com For City of St. Helena: Thomas B. Brown, Burke, Williams & Sorensen, tbrown@bwslaw.com

In the latest wrinkle in a long-running CEQA battle, the Third District Court of Appeal – in an unpublished ruling – has concluded that the City of Sacramento’s amended environmental impact report for the McKinley Village adequately deals with the project’s traffic impacts. Meanwhile – two years after the initial published appellate court ruling and more than a year after the Supreme Court declined to depublish the case – the project is complete and model units are open for viewing .

Rarely are retiring politicians rewarded with anything resembling the plaudits that rained down on Jerry Brown at the conclusion of his second stint as governor of California. Oft cited are his intelligence, his deep understanding of the labyrinths of state government, a strong personality that tends not to wobble after settling on a decision and a love of roll-up-the-shirtsleeves law-making. Brown should also be remembered as a land-use governor par excellence who was willing to take political heat for projects that may not pay off for the public for years or even decades.

In his first budget proposal Thursday, Gov. Gavin Newsom proposed an unprecedented series of carrots and sticks that would attempt to both induce and force local governments to plan for – and produce – more housing. The proposals could potentially have a wide-ranging impact on the state’s system of planning and development, but the budget contained little detail on how these ideas would be implemented. The biggest carrot is $750 million to local governments -- $250 million to up their game on housing elements and $500 million as a reward for building more housing. In the budget summary, Newsom said the state would revamp the Regional Housing Needs Allocation process and give the Department of Housing & Community Development a more significant role in enforcing regional housing goals. The biggest stick – but one that will be difficult to achieve – is his proposal to withhold transportation funds from local governments that don’t achieve housing production goals. In his freewheeling budget press conference Thursday, Newsom said : “If you’re not hitting your goals, I don’t know why you get the money.” (Although Liam Dillon’s Los Angeles Times article on Friday is good source for the overall picture, his live Twitter feed from Thursday gives a vivid real-time account of how Newsom talked about housing at the press conference. Though the budget summary does not include details on how Newsom will implement his proposed new carrots and sticks, it does lay out a sweeping set of changes in general terms. These include: The $750 million for local governments on housing, including $250 million for planning. A complete revamping of the state’s RHNA and Housing Element process under the direction of HCD. Maybe the most important words in the budget summary on this topic are these: “HCD will be taking a more active role in housing element reviews. Moving from an advisory role, HCD will now oversee and enforce regional housing goals and production. HCD will determine a methodology for allocating housing needs to regions and local jurisdictions, with local input.” $500 million for the development of moderate-income housing. A vastly expanded state low-income housing tax credit program. An ambitious proposal to use the state’s own surplus property for affordable housing especially since development on such land does not require local approval. Modest changes to the Enhanced Infrastructure Finance District program, including eliminating the voter requirement and pairing EIFDs with federal Opportunity Zone investment opportunities. Newsom stopped short, however, of a proposing a new or expanded tax-increment program to benefit housing.

Partially overturning an appellate court ruling, the California Supreme Court has struck down part of the environmental impact report for the Friant Ranch project in Fresno county, saying the EIR didn’t tightly link the project’s air quality effects to actual human health consequences. The county will have to re-do part of the EIR.

The Oakland City Council approved a Public Land Policy that would require the city to deposit 100 percent of proceeds from future sales of unused city-owned land into an affordable housing trust fund and any city-owned land it chooses to lease would first be offered to developers that agree to sell at least half of their homes at below-market rates. The goal of the two steps are to boost the city’s low-cost housing supply. City staff must now return with a proposed ordinance that would codify the policy. The policy also requires all construction projects on city parcels to give priority to local workers and that labor agreements for projects are signed with local trade unions for developments with more than 80 units or that cost more than $40 million. The city owns 20 sites, totaling 24 acres, that are available for development. Agencies Consider Lawsuit over Bay Delta Plan The State Water Resources Control Board approved the Bay Delta Plan in mid-December to improve the health of rivers and fish in the Sacramento-San Joaquin River Delta by limiting the amount of water that dozens of communities could take from four major waterways. While the plan leaves rooms for negotiating the extent of the cutbacks, agencies that draw from the San Joaquin River and its tributaries say legal action may be necessary in the event they are forced to cut back more than they can afford. Under the plan, according to San Francisco Public Utilities Commission, city residents and businesses could face reductions of 40 percent or more during prolonged dry periods. The goal of the plan is to prevent the collapse of the Sacramento-San Joaquin River Delta which serves as a hub for the state’s water supplies and is a vital habitat for threatened salmon. The Bay Delta Plan calls for maintaining an average of 40 percent of the natural flow of the San Joaquin River and its tributaries during peak spring runoff. Currently, the flow averages 20 percent or less because of diversions. OPR Seeks Comments on Guidelines for Greenhouse Gas Analysis The Governor’s Office of Planning and Research (OPR) has released a discussion draft update to its 2008 advisory on how to analyze greenhouse gas impacts under the California Environmental Quality Act (CEQA). The discussion draft is available online at " OPR’s Technical Advisories .” Since 2008, there have been developments in statutes, regulations, and science, as well as a growing body of case law focused on addressing climate change and greenhouse gas emissions. This discussion draft incorporates developments since June 2008, including regulatory changes made to the CEQA Guidelines in late 2018 by the California Natural Resources Agency.  OPR seeks input on this document, in particular: 1. Are there any important points that we missed that we should address? 2. Do you have any suggestions on how to clarify the topics that we did address? Input may be submitted electronically to comments@opr.ca.gov  by March 15. SACOG Issues Grants to Support Sustainability, Active Transportation The Sacramento Area Council of Governments  awarded $132.4 million to 54 projects throughout the Greater Sacramento area. A few of the projects include City of Sacramento’s Del Rio Trail project which was awarded $6 million to build 4.8 miles of multiuse trail. Yuba County’s busiest road, North Beale Road, was awarded $2.3 million to help the county rehabilitate the corridor, fund sidewalks, bike lanes, crossings, and landscaping to make it safer for pedestrians and cyclists. The City of Rancho Cordova won $2.5 million for improvements to Sunrise Boulevard around the Sunrise lightrail station. SACOG awarded $4.2 million to Yolo County to help rehabilitate County Road 98. SACOG’s Green Region program awarded $11.7 million to four projects, one of which will buy and install Yolo County’s first DC fast chargers for electric vehicles. Quick Hits & Updates  LA Metro directors voted , 7-4, to support a plan that would allow South Bay commuters to travel most of the Green Line without changing trains once the new Crenshaw Line opens next year. The directors also decided the Crenshaw Line would be restricted to two-car trains to limit issues. Metro staff had proposed to address the capacity issues on the Green Line by breaking the line into two pieces and restricting a portion to three-car trains but that would mean riders at certain South Bay stations would be forced to transfer. The Crenshaw Line is expected to open in mid-2020. The California Coastal Commission released a free app, YourCoast , that would allow the public to explore free guides to 1,563 beaches, trails, parks, and visitor-serving destinations throughout the state. The app helps visitors find out which beaches have disabled access, are dog-friendly, have restrooms, parking, and more. The app is a result of a settlement of a June 2013 Coastal Act violation at a hotel campground open to the public in Big Sur. CBS Corp. has sold its iconic Television City headquarters to real estate developer Hackman Capital Partners for $750 million. CBS said certain shows that are produced on the property would continue and CBS would retain office space for the studio’s international operation headquarters. Hackman also developed the landmark Culver Studios. CaRLA has filed a lawsuit against the City of San Francisco to correct two regulations of its ADU ordinance that allegedly fail to comply with state requirements. According to the lawsuit, the ordinance subjects ADUs to a discretionary review process which allows for the potential of indefinite delays and only existing single-family homes are allowed ADUs. New single-family homes are not included in the ordinance. The Los Angeles City Council unanimously passed an ordinance that legalizes and regulates vending on city streets. Under the new rules, vendors must pick up trash; ensure that people can pass on the sidewalks; and do business at a minimum distance from fire hydrants, driveways, building entrances, curbs, and at least three feet from another vendor. All vendors must all have any business and health permits required by the city, county or state. The rules will go into effect by January. Los Angeles Metro’s board of directors directed its CEO to devise options for initial funding to extend the first phase of the Gold Line beyond La Verne to Pomona, with the second phase consisting of Claremont and Montclair stops. Gold Line officials are hoping to identify $200 million in the next couple months for the extension. Santa Clara County supervisors unanimously approved spending $123.1 million to construct six affordable rental housing projects and rehabilitate three buildings throughout the county. The funds would come from the $950 million Measure A housing bond that voters passed in 2016. For every dollar the county spends, the projects will be supplemented by $2.78 in state and federal grants or private investment. The county’s goal is to build 4,800 affordable homes by 2026. The approved funds would go towards building 620 apartments, including homeless housing with support services and units reserved for low- to extremely low-income residents. The funds would also go to rehabilitating 484 affordable apartments. San Francisco Board of Supervisors will be voting on a comprehensive ordinance updating the city’s framework for cannabis regulation. One of the amendments included would allow cannabis retailers to initially apply only for four retail permits each. Supervisor Aaron Peskin said his proposal would prevent “monopolistic owners from strangling innovation”. However, others say the amendment would unfairly limit the number of storefronts new applicants can apply for while existing retailers do not have such caps. (See prior CP&DR coverage .)

CP&DR Vol. 33 No. 12 December 2018

The Sacramento City Council passed an ordinance, 8-0, that would ban new gas stations, drive-through restaurants and warehouses within a quarter-mile of the city’s 23 light-rail stations. The new ordinance would also eliminate parking requirements for new housing developments within a quarter-mile of a station. The ordinance would require cannabis cultivation and manufacturing businesses and certain types of other operations opening within a half-mile of a light-rail station to apply for conditional use permits with the city. The goal of the ordinance is to decrease greenhouse gas emissions, increase transit ridership and encourage more high-density housing near light rail stations. Southern California Cities Battle over 2,400-Acre Parcel The City of Commerce is launching a $42 million effort to win jurisdiction over a 2,500-acre parcel called Tres Hermanos Ranch covering parts of Diamond Bar and Chino Hills, straddling the junction of Los Angeles, Orange, and Riverside counties  The cities of Industry and Chino Hills have threatened to sue if Commerce moves forward with its plan. Industry owns the property through its former redevelopment agency and was approved to buy back the land by a county oversight board last year, but has not closed the deal because of ongoing lawsuits. Commerce is arguing that Industry has waived its first right to buy the property by not finishing the sale, and has asked the county oversight board to sell it the land instead. Though it in the middle of the Los Angeles region, Tres Hermanos Ranch still has cattle; it has been proposed as the site of a solar power farm.  Analysis Shows 1.1 Million Structures at Risk of Wildfires Statewide The Los Angeles Times analyzed wildfire hazard across the state and found that hundreds of communities from Redding to San Diego are at high risk of deadly fires. According to maps drawn by the Department of Forestry and Fire Protection, more than 1.1 million structures, or roughly 1 in 10 buildings in California, lie within the highest-risk fire zones. Los Angeles has the most structures in the highest hazard zone, at least 114,000, and San Diego came second with more than 88,0000 structures. Nearly 60 percent of the at-risk structures in the state are within the jurisdiction of incorporated cities or counties meaning the burden of preparing is on local fire departments. Study Analyzes Parking Habits of Riders of Electric Scooters  San Jose State University released a white paper, “Where do Riders Park Dockless, Shared Electric Scooters? Findings from San Jose, California”. The group observed and photographed 530 parked scooters over two months in the summer and evaluated the “well-parked” scooters. “Well-parked” meant standing upright, placed on the periphery of pedestrian paths or in areas that are already obstructed such as street furniture, and not blocking pedestrian access. The research found the majority, 72 percent, were parked on sidewalks while 23 percent were parked off the streetscape in adjacent properties. Five percent of observed scooters were on a pedestrian street running through part of downtown. The research found 90 percent of parked scooters did not overtly disrupt pedestrian traffic. Other observations include virtually al, 97 percent, were parked uprights as required by California state law. Fewer than two percent of scooters were parked in automobile parking spaces and only three percent were parked on unpaved surfaces. (See prior CP&DR  coverage .) Controversy Swirls around USCF Building on National Register of Historic Places Opponents of a proposed redevelopment of the University of California, San Francisco's 10-acre Laurel Heights campus have succeeded in their campaign to place a modernist building at the center of the campus on the National Register. The bid was supported by both San Francisco’s Historic Preservation Commission and the State’s Historical Resources Commission. The building located at 3333 California Street is determined by the Keeper of the National Register of Historic Places to be eligible to be added to the National Register. While the property cannot be added to the National Register without the property owner’s consent, which the new ownership team opposes, the Keeper’s determination automatically adds the building to the California’s Register of Historic Places. Being listed in the Register does not preclude the redevelopment of the campus, but does provide additional protections such as legal challenges and potential delays. The development team has a plan to have the governor deem the proposed redevelopment of the campus as an Environmental Leadership Project. While this would not approve the project, it would require all legal challenges to be resolved within a year. The proposed redevelopment of the campus would include 558 residential units, 49,999 square feet of office space, 54,000 square feet of retail space, a new 15,000 square foot childcare center, 896 parking spaces, and 236,000 square feet of open space. PPIC Report Calls of $50 Billion to Redevelop California Higher Ed Campuses The Public Policy Institute of California (PPIC) released a report on financing higher education and found the state is facing increasing demands for affordable higher education and a need for adequate facilities suited to a rapidly evolving economy. The report estimated by 2030 the supply of college graduates would fall 1.1 million short of workforce demand. The three major challenges include a growing need for more capacity in current facilities, historical underinvestment, and decentralized decision making. Estimates reported by UC, CSU, and community colleges reflect that facility modernization and maintenance could cost more than $50 billion through 2022-23. According to a recent PPIC survey, two-thirds of adults in the state favor a potential state bond measure for higher education construction projects.

It’s not quite Marbury v. Madison , but the City of Encinitas got a pretty stern lesson in the principle of judicial review in December. For the second time in two years, the Superior Court overruled the will of Encinitas voters and has ordered the city to adopt a housing element that conforms to state housing laws and Regional Housing Needs Assessment numbers – and this time the city’s residents might not get to vote on it, as their own ordinances require.

Sometimes local governments adopt land-use policies knowing they’re not likely to actually stick by them in individual cases. But you can’t challenge the policy in court on the assumption that a local jurisdiction won’t follow it. At least that’s the implication of a new appellate court ruling. Plumas County’s new general plan complies with the state’s Timberland Act and does not appear to open the county up to the threat of rural sprawl, the Third District Court of Appeal has ruled. An environmentalist challenge to the general plan rests “on an unsupported assumption of rampant future growth in a County where population is expected to begin shrinking during the project’s time period,” wrote Justice Andrea Lynn Hoch for a unanimous three-judge panel. To the extent that environmentalists suspect that the county’s promise to comply with the Tinderland Act is disingenuous, that assertion is not ripe for court review, the Third District concluded. Located in a remote area three hours northeast of Sacramento, Plumas County has only about 20,000 residents; that number went down between 2000 and 2010 and is expected to decline again starting in 2025. Most of Plumas County is owned by government agencies and the county’s general plan – updated between 2005 and 2011 – calls for growth to be concentrated in the county’s “planning areas,” which make up about a third of the county’s privately owned land. Although the general plan does anticipate some development in rural areas, the county’s planning documents don’t anticipate a significant level of such development. As evidence, the county noted that only 3% of development permits between 2000 and 2010 were located in rural areas. The High Sierra Rural Alliance sued, claiming violations of both the Timberland Act and CEQA. In essence, High Sierra argued that the general plan and other county planning documents contain deliberate loopholes that will facilitate rural sprawl, especially for second-home development. The appellate court rejected all of High Sierra’s arguments, including a request to recirculate the general plan environmental impact report. Regarding the Timberland Act, High Sierra argued that the county created a loophole in the general plan that conflicted with the state law in a way that would permit more residential development in rural areas. Local planning documents must conform with the Timberland Act and counties are charged with enforcing it. Under the law, most land uses are prohibited in timberland production ones, but residences are permitted if they are “necessary for the management of land zoned as timberland production.” Among other things, High Sierra argued that the county violated the Timberland Act by removing this specific language from its general plan policy. Other protections are in place, including a restriction that says a residence may be placed in the timberland zone only on parcels of 160 acres or more. The county argued that it did not need to include the “necessary for the management” language because it is redundant with state law and the county must enforce the Timberland Act anyway. According to the appellate court, High Sierra doesn’t believe that the county will follow its own policy – but as the court pointed out, that doesn’t help the environmentalists’ argument in a challenge to the policy itself. “Indeed, the gist of High Sierra’s concerns appears to be the County is simply “disingenuous” about its intent to follow state law,” the court wrote. “This concern, however, does not present a ripe claim for purposes of justiciability. High Sierra cites no evidence County staff are ignoring the requirements of the Timberland Act under the general plan update. And High Sierra has not presented a proper argument or record regarding the manner in which the County assesses whether a residence or structure is necessary to the management of timberland production zoned lands. A challenge to the County’s implementation of its general plan is not yet ripe.” High Sierra also argued that the county’s ministerial permitting process for such residences violated the Timberland Act’s requirement that such projects be considered on a case-by-case basis, but the court accepted the county’s argument that this requirement is fulfilled by the county’s requirement to make findings of consistency with the Timberland Act. High Sierra also sought recirculation of the general plan EIR, arguing that the EIR had not fully assessed the possibility that significant rural sprawl would occur under the general plan. But the court rejected that argument as well, saying: “Although High Sierra imagines a worst case scenario for rural sprawl in Plumas County, it does not demonstrate the County erred in relying on its experience and data showing minimal growth outside the planning areas would occur in the reasonably foreseeable future.” The Case: High Sierra Rural Alliance v. County of Plumas , No. C082315 (November 15, 2018) The Lawyers: For High Sierra: Michael W. Graf, mwgraf@aol.com  For Plumas County: James G. Moose, Remy Moose Manley, jmoose@rmmenvirolaw.com

The so-called Shapell test for calculating school fees, first laid out by an appellate court in 1991, appears pretty straightforward. A school district must (1) project the amount of new housing expected to be constructed; (2) determine how many students are likely to be generated by the new housing; and (3) estimate what it will cost to provide the necessary school facilities for that number of new students.