Takeaways from California land use conference

Argent Communications Group held its Fourth Annual Conference on California Land Use Law and Policy on March 5 in Los Angeles. As in years past, the conference brought together some of the state's most original thinkers, advocates and policymakers to discuss emerging trends and cutting-edge issues in land use law and policy. Topics spanned the spectrum and ranged from efforts to address the state's crippling housing supply shortage, sea level rise and climate change, water scarcity, the pros and cons of ballot box planning, challenges associated with regulating cannabis, the state's reaction to the change in the federal administration and the most recent California Environmental Quality Act decision and proposed guidelines. This is quite a grab bag of topics, but reflective of the comprehensive nature of land use law and policy.

This year, the conference was honored to have Sen. Scott Wiener of San Francisco as its keynote speaker. Wiener spoke about the housing supply and affordability challenges that face California, drawing upon examples in San Francisco and elsewhere where the meagre supply of residential units and the high costs of living have made it nearly impossible for the average Californian to either buy or rent a place to live. For Wiener, the solution is clear: build more housing. To do that, he mentioned the package of bills passed by the California Legislature, focusing on what might be described as the centerpiece of that package: Senate Bill 35, the Housing Accountability and Affordability Act.

The concept behind SB 35 is fairly simple. For jurisdictions that have not met regional housing needs targets, SB 35 will streamline approval processes allowing certain development projects to happen more quickly. These targets are determined through the Regional Housing Needs Allocation, or RHNA, process every five to eight years, and are incorporated into each local government's housing element of its general plan. Just prior to the conference, a summary of cities and counties that have not met their most recent RHNA targets, and therefore are subject to SB 35's streamlining provisions, was released to the public. Wiener pointed out with some frustration that the summary shows only 13 cities and counties in California met their RHNA target. As to the other cities and counties, projects in those jurisdictions that satisfy SB 35's qualification requirements (such as affordability and prevailing wage requirements) will be subject to permit streamlining.

Wiener closed with some passing remarks to his new proposed legislation, SB 827, which is controversial because it promotes increased development near transit by bypassing local government land use controls. Little more was said about SB 827, perhaps because the bill is still making its way through the process. But Wiener has been quoted as saying that he knows it will not be "in its pristine form by the end," and that in the end, SB 827 may not even pass.

The senator's keynote presentation set the tone for the rest of the conference, which could best be described as buckling up for some potentially wild paradigm shifts ahead. For example, David Smith with Stice & Block LLP presented on the need to re-think local land use controls in an era of state-driven greenhouse gas reduction policies, concluding that "with the state's new focus on and incorporation of land use policy into state-level greenhouse gas emission reduction mandates, we may be seeing a much more profound and foundational impact on traditional notions of land use regulation."

Similarly, David Waite's presentation on ballot box planning and the use of initiative and referenda to enact land use controls framed up the issue by noting that we are seeing a "distrust of government officials and concerns about the 'process'," and that "disgruntled citizens, developers, community groups and environmentalists are turning to direct democracy" as a result. According to Waite, these issues lead to the fundamental question, "Are citizens exercising their democratic right of self-governance or are they undermining the foundation of representative government?" Waite's presentation explored this question by analyzing several recent ballot measures in Southern California, including Los Angeles' Measure S, which was defeated in March 2017 but would have imposed a two-year moratorium on City Council approvals of projects that, with some exceptions, sought zone changes, height district changes or general plan amendments to intensify land uses.

Next up and consistent with this theme was a set of presentations on the game-changing decision by voters of California to legalize recreational use of cannabis, and the land use implications of developing and operating cannabis facilities. Clearly, several legal issues related to cannabis facilities and their eventual integration into local government land use planning efforts remains unresolved. Bottom line: stay tuned, as this particular shift in legal paradigms continues to play out.

Finally, Scott Birkey's presentation on California's reaction to the new federal administration, and what can only be described as a sea-change in approach to federal environmental regulations, proposed what he described as the "California pushback to the federal pullback." One example he described as most telling of this regulatory pushback at the state level is the State Water Resources Control Board's new state regulations defining wetlands and creating a new permitting process for the fill of wetlands that are considered "waters of the state," (i.e., those waters that are not subject to the federal government's permitting jurisdiction, but are subject to the state government's permitting jurisdiction). Birkey anticipates that if these new regulations are adopted in their current form, the state's wetland permitting process could become far more onerous and potentially duplicative of the federal process. According to Birkey, the Trump administration's decision to rescind and review the Obama-era Clean Water Rule, which would have broadened the scope of federal jurisdiction over wetlands, may cause California to finalize these state regulations with more speed and deliberateness, which could begin a new era of wetland permitting in the state of California.

Birkey co-chaired and presented, and Waite presented at the Annual California Land Use Law and Policy Conference.