HomeMy WebLinkAboutLetters of Opposition - AB 890 - SB 35 - SB 649CITY OF PALM DESERT
DEPARTMENT OF ADMINISTRATIVE SERVICES
STAFF REPORT
REQUEST: CONSIDERATION TO APPROVE LETTERS OF OPPOSITION TO AB
890 (MEDINA), SB 35 (WIENER), AND SB 649 (HUESO).
SUBMITTED BY: Stephen Y. Aryan, Risk Manager
DATE: April 27, 2017
CONTENTS: 1. AB 890 (Medina) Bill Information
2. SB 35 (Wiener) Bill Information
3. SB 649 (Hueso) Bill Information
Recommendation
By Minute Motion, approve letters of opposition for AB 890 (Medina), SB 35 (Wiener), and
SB 649 (Hueso).
Commission Recommendation
The Palm Desert Legislative Review Committee met on April 7, 2016, and recommends that the
City Council send letters of opposition for AB 890 (Medina), SB 35 (Wiener), and SB 649
(Hueso). A letter of support was also recommended for AB 1326 (Cooper), but this bill recently
had substantial amendments and staff will return it to the Committee for consideration under the
revised language.
Strategic Plan
This item is not directly related to any category within the Palm Desert Strategic Plan.
Background
The Palm Desert Legislative Review Committee met on April 7, 2016 and reviewed numerous
bills for consideration of City support or opposition. The Committee recommends opposing the
three bills identified below.
ASSEMBLY BILL 890 (MEDINA): This bill prohibits projects that are subject to the California
Environmental Quality Act (CEQA) from being considered or approved as part of the local
initiative process, except when the project does not have the potential for a direct physical
change to the environment, or a reasonably foreseeable indirect physical change in the
environment. The League of California Cities indicates that AB 890 appears to significantly pre-
empt and deter local initiatives by establishing potentially unconstitutional barriers to placing them
on the ballot.
The bill is a significant departure from current practice and law, as it requires the legislative body
to exercise authority to determine whether a proposed initiative is suitable for the ballot and
transfers power to the state over local land use and initiative processes. AB 890 applies to all
initiatives not just land use initiatives without attention to initiatives that would have no
environmental impact. The provisions of this bill call for exponential increases in costs and
Staff Report: AB 890 (Medina) & SB 35 (Wiener), and SB 649 (Hueso) Opposition
April 27, 2017
Page 2 of 2
workload for local governments. To meet the mandates set forth in this measure, local
governments would incur high costs and likely lack the staff levels required. Staff respectfully
recommends a letter of opposition be sent for AB 890 (Medina).
SENATE BILL 35 (WIENER): This bill pre-empts local discretionary land use approvals of
multifamily housing developments and accessory dwelling units by having such approvals be
considered "ministerial." Under SB 35, a ministerial permit approval eliminates opportunities for
public review, excludes project -level environmental review, and removes local parking
requirements. Eliminating opportunities for public review of these major development projects
goes against the principles of local democracy and public engagement. Staff respectfully
recommends a letter of opposition be sent for SB 35 (Wiener).
SENATE BILL 649 (HUESO): This bill would provide that a small cell is a permitted use, not
subject to a city or county discretionary permit, if the small cell meets specified requirements.
Small cells include, but are not limited to, other such equipment as electric meters, telecom
demarcation boxes, ground -based enclosures, battery backup power systems, power transfer
switches, cables, and conduits.
A small cell is a permitted use if it (a) is located in the public right-of-way in any zone or in any
zone that includes a commercial/industrial use, (b) the small cell complies with all applicable state
and local health and safety regulations, and (c) if it is not located on a fire department facility. SB
649 removes local authority over public property, public input, and local discretion by eliminating
consideration of the aesthetic and environmental impacts of "small cells." Staff respectfully
recommends a letter of opposition be sent for SB 649 (Hueso).
Fiscal Analysis
There is currently no quantifiable fiscal impact associated with opposition to these bills.
Submitted By:
9)
Stepheib Y. Aryan, Risk F 1 ager
Reviewed By:
Lori Carney, Directofof Administrative Services
Approval:
Lauri Aylaian, City Manager
AMENDED IN ASSEMBLY MARCH 28, 2017
CALIFORNIA LEGISLATURE-2017-18 REGULAR SESSION
ASSEMBLY BILL No. 890
Introduced by Assembly Member Medina
February 16, 2017
An act to amend Sections 9105, 9108, 9110, 9116, 9118, 9203, 9207,
9208, 9214, 9215, 9301, 9305, 9310, 9311, and 9312 of, and to add
Sections 9117, 9219, 9227, and 9318 to, the Elections Code, to amend
Section 65867.5 of the Government Code, and to amend Sections 21065
and 21 152 of the Public Resources Code, relating to initiatives.
LEGISLATIVE COUNSEL'S DIGEST
AB 890, as amended. Medina. Local land use initiatives:
environmental review.
The California Constitution authorizes the electors of each city and
county to exercise the powers of initiative and referendum under
procedures provided by the Legislature. Pursuant to that authority,
existing law authorizes a proposed ordinance to be submitted to the
appropriate elections official and requires the elections official to
forward the proposed ordinance to appropriate counsel for preparation
of a ballot title and summary. Existing law requires the elections official
to provide the ballot title and summary to proponents of the proposed
measure and the proponents are required to include the ballot title and
summary upon each section of the petition used to gather the required
number of signatures. Under existing law, if an initiative petition is
signed by not less than a specified number of voters and filed with the
elections official, that elections official must submit the proposed
ordinance to the county board of supervisors, legislative body of a city,
or governing board of a district. Existing law requires the governing
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AB 890 — 2 —
body to (1) adopt the ordinance without alteration, (2) call an election
or special election in certain instances, at which the ordinance, without
alteration, would be submitted to a vote of the voters of the jurisdiction,
or (3) for cities and counties, order a report on the ordinance and then
adopt the ordinance or submit it to the voters.
This bill would require a proponent of an proposed initiative
ordinance, at the time he or she files a copy of the proposed initiative
ordinance for preparation of a ballot title and summary with the
appropriate elections official, to also request that an environmental
review of the proposed initiative ordinance be conducted by the
appropriate planning department, as specified. The bill would require
the elections official to notify the proponent of the result of the
environmental review. The bill would require the county board of
supervisors, legislative body of a city, or governing board of a district,
if the initiative ordinance proposes an activity that would result in a
direct or indirect physical change in the environment, as specified, to
order that an environmental impact report or mitigated negative
declaration of the proposed ordinance be prepared. Once the
environmental impact report or mitigated negative declaration has been
prepared, the bill would require the governing body to hold a public
hearing and either approve or deny the proposed ordinance, instead of
allowing the proposed ordinance to be submitted to the voters.
By requiring local officials to provide a higher level of service, this
bill would impose a state -mandated local program.
The California Constitution requires the state to reimburse local
agencies and school districts for certain costs mandated by the state.
Statutory provisions establish procedures for making that reimbursement.
This bill would provide that, if the Commission on State Mandates
determines that the bill contains costs mandated by the state,
reimbursement for those costs shall be made pursuant to the statutory
provisions noted above.
Vote: majority. Appropriation: no. Fiscal committee: yes.
State -mandated local program: yes.
The people of the State of California do enact as follows:
1 SECTION 1. The Legislature finds and declares all of the
2 following:
3 (a) Local land use initiative measures are matters in which there
4 is a statewide interest because they have effects beyond the
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1 jurisdictional limits of a local agency, and thus are not matters of
2 purely local concern.
3 (b) Local land use initiative measures may affect the health,
4 safety, and general welfare of residents within and outside the
5 jurisdictional limits of a local agency.
6 (c) Local land use initiative measures may impact the
7 environment, which is an asset of all the people of California and
8 is a matter of statewide concern, consistent with the legislative
9 intent expressed in Chapter 1 (commencing with Section 21000)
10 of Division 13 of the Public Resources Code.
11 (d) A thorough environmental review of local land use projects
12 is necessary to safeguard the environment and to inform the public
13 of the projects' possible consequences. This environmental review
14 must occur at the earliest possible time.
15 (e) Voters, like legislators, should have access to information
16 about a local land use initiative measure's environmental impacts.
17 (f) Approving local land use initiative measures that have the
18 potential to cause significant environmental impacts is
19 fundamentally incompatible with California's substantive
20 environmental mandate, as set forth in Section 21002 of the Public
21 Resources Code, which states that projects are not to be approved
22 "if there are feasible alternatives or feasible mitigation measures
23 available which would substantially lessen the significant
24 environmental effects of such projects.'
25 (g) Development agreements, which are negotiated contractual
26 agreements between a legislative body and an individual or entity,
27 are unsuitable for the initiative process.
28 SEC. 2. Section 9105 of the Elections Code is amended to read:
29 9105. (a) The county elections official shall immediately
30 transmit a copy of any proposed measure to the county counsel.
31 Within 15 days after the proposed measure is filed, the county
32 counsel shall provide and return to the county elections official a
33 ballot title and summary for the proposed measure. The ballot title
34 may differ from any other title of the proposed measure and shall
35 express in 500 words or less the purpose of the proposed measure.
36 In providing the ballot title, the county counsel shall give a true
37 and impartial statement of the purpose of the proposed measure
38 in such language that the ballot title shall neither be an argument,
39 nor be likely to create prejudice, for or against the proposed
40 measure.
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1 (b) The county elections official shall furnish a copy of the
2 ballot title and summary to the proponents of the proposed measure.
3 The proponents shall, before the circulation of the petition, publish
4 the Notice of Intention, and the ballot title and summary of the
5 proposed measure in a newspaper of general circulation published
6 in that county, and file proof of publication with the county
7 elections official.
8 (c) The ballot title and summary prepared by the county counsel
9 shall appear upon each section of the petition, above the text of
10 the proposed measure and across the top of each page of the
11 petition on which signatures are to appear, in roman boldface type
12 not smaller than 12 point. The ballot title and summary shall be
13 clearly separated from the text of the measure. The text of the
14 measure shall be printed in type not smaller than 8 point.
15 The heading of the proposed measure shall be in substantially
16 the following form:
17
I Initiative Measure to be Submitted Directly to the Voters
19
20 The county counsel has prepared the following title and summary
21 of the chief purpose and points of the proposed measure:
22 (Here set forth the title and summary prepared by the county
23 counsel. This title and summary must also be printed across the
24 top of each page of the petition whereon signatures are to appear.)
25 (d) (1) Any—per3on Also ;J illittc3tcti ;11 ail). proponent of a
26 proposed measure shall file a copy of the proposed measure with
27 the elections official with a request than an environmental review
28 of the proposed measure be conducted. The elections official shall
29 immediately transmit a copy of the proposed measure to the county
30 planning department. Within 30 days after the proposed measure
31 is filed, the county planning department shall determine if the
32 activity proposed by the measure is subject to the California
33 Environmental Quality Act (Division 13 (commencing with Section
34 21000) of the Public Resources Code.) If the activity proposed by
35 the measure is subject to the California Environmental Quality
36 Act and no exemption applies, the county planning department
37 shall determine if the activity proposed by the measure has the
38 potential for resulting in either a direct physical change in the
39 environment, or a reasonably foreseeable indirect physical change
40 in the environment. If there is no potential for such a change, the
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1 city shall prepare a negative declaration within 180 days. If there
2 is potential for such a change, the city shall notify the proponent,
3 within 30 days after the proposed measure is filed, that the
4 proposed measure cannot be adopted by the initiative process but
5 can receive a public hearing pursuant to Section 9117 if a sufficient
6 number of signatures are collected.
7 (2) The elections official shall furnish a copy of the negative
8 declaration or any other environmental determination to the person
9 filing the proposed measure. Any negative declaration or any other
10 environmental determination shall be included with each section
11 of the petition.
12 SEC. 3. Section 9108 of the Elections Code is amended to read:
13 9108. The proponents may commence to circulate the petitions
14 among the voters of the county for signatures by any registered
15 voter of the county after publication of the title and summary
16 prepared by the county counsel, and after receiving a negative
17 declaration or other environmental determination from the county
18 planning department. Each section of the petition shall bear a copy
19 of the notice of intention, and the title and summary prepared by
20 the county counsel, and any negative declaration or other
21 environmental determination prepared for the measure.
22 SEC. 4. Section 9110 of the Elections Code is amended to read:
23 9110. Signatures shall be secured and the petition shall be
24 presented to the county elections official for filing within 180 days
25 from the date of receipt of the title and summary, and negative
26 declaration or other environmental determination, or after
27 termination of any action for a writ of mandate pursuant to Section
28 9106 and, if applicable, after receipt of an amended title or
29 summary, or both, whichever occurs later.
30 SEC. 5. Section 9116 of the Elections Code is amended to read:
31 9116. If the initiative petition is signed by voters not less in
32 number than 20 percent of the entire vote cast within the county
33 for all candidates for Governor at the last gubernatorial election
34 preceding the publication of the notice of intention to circulate an
35 initiative petition, and contains a request that the ordinance be
36 submitted immediately to a vote of the people at a special election,
37 the board of supervisors shall consider certifying the petition at
38 the next regular meeting after any required public review and
39 comment period. If the initiative petition proposes an activity for
40 which there is substantial evidence supporting a fair argument that
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AB 890 — 6 —
1 the activity has the potential for resulting in either a direct physical
2 change in the environment, or a reasonably foreseeable indirect
3 physical change in the environment, the legislative body shall
4 declare that the initiative petition proposes an activity that is
5 unsuitable for the initiative process and proceed pursuant to Section
6 9117. If a negative declaration was prepared for the petition, the
7 negative declaration shall be circulated for public review and
8 comment for at least 20 days before the meeting at which the
9 legislative body will consider certifying the petition, and the
10 legislative body shall consider any public comments raised. At the
11 meeting where the legislative body will consider certifying the
12 petition, the legislative body shall do one of the following:
13 (a) Adopt the ordinance without alteration, unless a negative
14 declaration was prepared for the petition, in which case only
15 subdivision (b) applies.
16 (b) Immediately call a special election pursuant to subdivision
17 (a) of Section 1405, at which the ordinance, without alteration,
18 shall be submitted to a vote of the voters of the county. The special
19 election shall be funded by the proponent of the initiative petition.
20 If the proponent declines to fund the special election, the ordinance
21 shall be submitted to voters pursuant to subdivision (b) of Section
22 1405.
23 (c) Order a report pursuant to Section 91 1 1. When the report is
24 presented to the board of supervisors, it shall either adopt the
25 ordinance within 10 days or order an election pursuant to
26 subdivision (b).
27 SEC. 6. Section 9117 is added to the Elections Code, to read:
28 9117. If an initiative petition is signed by not less than the
29 number of voters specified in Section 9118, and the activity
30 proposed by the initiative petition has the potential for resulting
31 in either a direct physical change in the environment, or a
32 reasonably foreseeable indirect physical change in the environment,
33 the legislative body shall require that an environmental impact
34 report or mitigated negative declaration be prepared to analyze the
35 impacts of the activity proposed by the initiative petition. Once
36 the environmental document is complete, the legislative body shall
37 hold a public hearing to either approve or deny the proposal.
38 SEC. 7. Section 9118 of the Elections Code is amended to read:
39 9118. If the initiative petition is signed by voters not less in
40 number than 10 percent of the entire vote cast in the county for all
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1 candidates for Governor at the last gubernatorial election preceding
2 the publication of the notice of intention to circulate an initiative
3 petition, the board of supervisors shall consider certifying the
4 petition at the next regular meeting after any required public review
5 and comment period. If the initiative petition proposes an activity
6 for which there is substantial evidence supporting a fair argument
7 that the activity has the potential for resulting in either a direct
8 physical change in the environment, or a reasonably foreseeable
9 indirect physical change in the environment, the legislative body
10 shall declare that the initiative petition proposes an activity that is
I 1 unsuitable for the initiative process and proceed pursuant to Section
12 91 17. If a negative declaration was prepared for the petition, the
13 negative declaration shall be circulated for public review and
14 comment for at least 20 days before the meeting at which the
15 legislative body will consider certifying the petition, and the
16 legislative body shall consider any public comments raised. At the
17 meeting where the legislative body will consider certifying the
18 petition, the legislative body shall do one of the following:
19 (a) Adopt the ordinance without alteration, unless a negative
20 declaration was prepared for the petition, in which case only
21 sttbdiA i:,r:a subdivision (b) applies.
22 (b) Submit the ordinance, without alteration, to the voters
23 pursuant to subdivision (b) of Section 1405, unless the ordinance
24 petitioned for is required to be, or for some reason is, submitted
25 to the voters at a special election pursuant to subdivision (a) of
26 Section 1405. Any special election shall be funded by the proponent
27 of the initiative petition. If the proponent declines to fund the
28 special election, the ordinance shall be submitted to voters
29 pursuant to subdivision (b) of Section 1405.
30 (c) Order a report pursuant to Section 9111. When the report is
31 presented to the board of supervisors, it shall either adopt the
32 ordinance within 10 days or order an election pursuant to
33 subdivision (b).
34 SEC. 8. Section 9203 of the Elections Code is amended to read:
35 9203. (a) Any-t,c.3o1; i:.terestul in any proponent of a
36 proposed measure shall file a copy of the proposed measure with
37 the elections official with a request that a ballot title and summary
38 be prepared. This request shall be accompanied by the address of
39 the person proposing the measure. The elections official shall
40 immediately transmit a copy of the proposed measure to the city
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1 attorney. Within 15 days after the proposed measure is filed, the
2 city attorney shall provide and return to the city elections official
3 a ballot title for and summary of the proposed measure. The ballot
4 title may differ from any other title of the proposed measure and
5 shall express in 500 words or less the purpose of the proposed
6 measure. In providing the ballot title, the city attorney shall give
7 a true and impartial statement of the purpose of the proposed
8 measure in such language that the ballot title shall neither be an
9 argument, nor be likely to create prejudice, for or against the
10 proposed measure.
I 1 (b) The elections official shall furnish a copy of the ballot title
12 and summary to the person filing the proposed measure. The person
13 proposing the measure shall, before its circulation, place upon each
14 section of the petition, above the text of the proposed measure and
15 across the top of each page of the petition on which signatures are
16 to appear, in roman boldface type not smaller than 12 point, the
17 ballot title prepared by the city attorney. The text of the measure
18 shall be printed in type not smaller than 8 point.
19 The heading of the proposed measure shall be in substantially
20 the following form:
21
22 Initiative Measure to be Submitted Directly to the Voters
23
24 The city attorney has prepared the following title and summary
25 of the chief purpose and points of the proposed measure:
26 (Here set forth the title and summary prepared by the city
27 attorney. This title and summary must also be printed across the
28 top of each page of the petition whereon signatures are to appear.)
29 (c) (1) Any proponent of a
30 proposed measure shall file a copy of the proposed measure with
31 the elections official with a request than an environmental review
32 of the proposed measure be conducted. The elections official shall
33 immediately transmit a copy of the proposed measure to the city
34 planning department. Within 30 days after the proposed measure
35 is filed, the city planning department shall determine if the activity
36 proposed by the measure is subject to the California Environmental
37 Quality Act (Division 13 (commencing with Section 21000) of
38 the Public Resources Code.) If the activity proposed by the measure
39 is subject to the California Environmental Quality Act and no
40 exemption applies, the city planning department shall determine
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1 if the activity proposed by the measure has the potential for
2 resulting in either a direct physical change in the environment, or
3 a reasonably foreseeable indirect physical change in the
4 environment. If there is no potential for such a change, the city
5 shall prepare a negative declaration within 180 days. If there is
6 potential for such a change, the city shall notify the proponent,
7 within 30 days after the proposed measure is filed, that the
8 proposed measure cannot be adopted by the initiative process but
9 can receive a public hearing pursuant to Section 9219 if a sufficient
10 number of signatures are collected.
11 (2) The elections official shall furnish a copy of the negative
12 declaration or any other environmental determination to the person
13 filing the proposed measure. Any negative declaration or any other
14 environmental determination shall be included with each section
15 of the petition.
16 SEC. 9. Section 9207 of the Elections Code is amended to read:
17 9207. The proponents may commence to circulate the petitions
18 among the voters of the city for signatures by any registered voter
19 of the city after publication or posting, or both, as required by
20 Section 9205, of the title and summary prepared by the city
21 attorney, and after receiving a negative declaration or other
22 environmental determination from the city planning department.
23 Each section of the petition shall bear a copy of the notice of
24 intention and the title and summary prepared by the city attorney,
25 and any negative declaration or other environmental determination
26 prepared for the measure.
27 SEC. 10. Section 9208 of the Elections Code is amended to
28 read:
29 9208. Signatures upon petitions and sections of petitions shall
30 be secured, and the petition, together with all sections of the
31 petition and the negative declaration or other environmental
32 determination, shall be filed within 180 days from the date of
33 receipt of the title and summary, or after termination of any action
34 for a writ of mandate pursuant to Section 9204, and, if applicable,
35 after receipt of an amended title or summary, or both, whichever
36 occurs later. Petitions and sections of petitions shall be filed in the
37 office of the elections official during normal office hours as posted.
38 If the petitions are not filed within the time permitted by this
39 section, the petitions shall be void for all purposes.
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AB 890 —10 —
1 SEC. 11. Section 9214 of the Elections Code is amended to
2 read:
3 9214. If the initiative petition is signed by not Tess than 15
4 percent of the voters of the city according to the last report of
5 registration by the county elections official to the Secretary of
6 State pursuant to Section 2187, effective at the time the notice
7 specified in Section 9202 was published, or, in a city with 1,000
8 or less registered voters, by 25 percent of the voters or 100 voters
9 of the city, whichever is the lesser number, and contains a request
10 that the ordinance be submitted immediately to a vote of the people
11 at a special election, the legislative body shall consider certifying
12 the petition at the next regular meeting after any required public
13 review and comment period. If the initiative petition proposes an
14 activity for which there is substantial evidence supporting a fair
15 argument that the activity has the potential for resulting in either
16 a direct physical change in the environment, or a reasonably
17 foreseeable indirect physical change in the environment, the
18 legislative body shall declare that the initiative petition proposes
19 an activity that is unsuitable for the initiative process and proceed
20 pursuant to Section 9219. If a negative declaration was prepared
21 for the petition, the negative declaration shall be circulated for
22 public review and comment for at least 20 days before the meeting
23 at which the legislative body will consider certifying the petition,
24 and the legislative body shall consider any public comments raised.
25 At the meeting where the legislative body will consider certifying
26 the petition, the legislative body shall do one of the following:
27 (a) Adopt the ordinance, without alteration, unless a negative
28 declaration was prepared for the petition, in which case only
29 subdivision (b) applies.
30 (b) Immediately order a special election, to be held pursuant to
31 subdivision (a) of Section 1405, at which the ordinance, without
32 alteration, shall be submitted to a vote of the voters of the city.
33 The special election shall be funded by the proponent of the
34 initiative petition. If the proponent declines to fund the special
35 election, the ordinance shall be submitted to voters pursuant to
36 subdivision (b) of Section 1405.
37 (c) Order a report pursuant to Section 9212. When the report is
38 presented to the legislative body, the legislative body shall either
39 adopt the ordinance within 10 days or order an election pursuant
40 to subdivision (b).
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1 SEC. 12. Section 9215 of the Elections Code is amended to
2 read:
3 9215. If the initiative petition is signed by not less than 10
4 percent of the voters of the city, according to the last report of
5 registration by the county elections official to the Secretary of
6 State pursuant to Section 2187, effective at the time the notice
7 specified in Section 9202 was published, or, in a city with 1,000
8 or less registered voters, by 25 percent of the voters or 100 voters
9 of the city, whichever is the lesser number, the legislative body
10 shall consider certifying the petition at the next regular meeting
11 after any required public review and comment period. If the
12 initiative petition proposes an activity for which there is substantial
13 evidence supporting a fair argument that the activity has the
14 potential for resulting in either a direct physical change in the
15 environment, or a reasonably foreseeable indirect physical change
16 in the environment, the legislative body shall declare that the
17 initiative petition proposes an activity that is unsuitable for the
18 initiative process and proceed pursuant to Section 9219. If a
19 negative declaration was prepared for the petition, the negative
20 declaration shall be circulated for public review and comment for
21 at least 20 days before the meeting at which the legislative body
22 will consider certifying the petition, and the legislative body shall
23 consider any public comments raised. At the meeting where the
24 legislative body will consider certifying the petition, the legislative
25 body shall do one of the following:
26 (a) Adopt the ordinance, without alteration, unless a negative
27 declaration was prepared for the petition, in which case only
28 sttbd:V»:6,13 *)-attel-(-0-.appir subdivision (b) applies.
29 (b) Submit the ordinance, without alteration, to the voters
30 pursuant to subdivision (b) of Section 1405, unless the ordinance
31 petitioned for is required to be, or for some reason is, submitted
32 to the voters at a special election pursuant to subdivision (a) of
33 Section 1405. Any special election shall he funded by the proponent
34 of the initiative petition. If the proponent declines to fund the
35 special election, the ordinance shall be submitted to voters
36 pursuant to subdivision (b) of Section 1405.
37 (c) Order a report pursuant to Section 9212. When the report is
38 presented to the legislative body, the legislative body shall either
39 adopt the ordinance within 10 days or order an election pursuant
40 to subdivision (b).
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AB 890 —12 —
1 SEC. 13. Section 9219 is added to the Elections Code, to read:
2 9219. If an initiative petition is signed by not Tess than the
3 number of voters specified in Section 9215, and the activity
4 proposed by the initiative petition has the potential for resulting
5 in either a direct physical change in the environment, or a
6 reasonably foreseeable indirect physical change in the environment,
7 the legislative body shall require that an environmental impact
8 report or mitigated negative declaration be prepared to analyze the
9 impacts of the activity proposed by the initiative petition. Once
10 the environmental document is complete, the legislative body shall
1 1 hold a public hearing to either approve or deny the proposal.
12 SEC. 14. Section 9227 is added to the Elections Code, to read:
13 9227. The initiative process in a city charter shall not be written
14 or interpreted in a way that precludes environmental review of an
15 initiative under state law.
16 SEC. 15. Section 9301 of the Elections Code is amended to
I7 read:
18 9301. Any proposed ordinance may be submitted to the
19 governing board of the district by an initiative petition filed with
20 the district elections official. Signatures to these petitions shall be
21 obtained in the same manner as set forth in Section 9020. Affidavits
22 shall be attached to each petition section in the form and in the
23 manner set forth in Section 9022. An environmental review of the
24 activity proposed by the initiative petition shall be conducted in
25 the manner set forth in subdivision (c) of Section 9203.
26 SEC. 16. Section 9305 of the Elections Code is amended to
27 read:
28 9305. After filing a copy of the notice of intention, statement
29 of the reasons for the proposed petition, written text of the
30 initiative, negative declaration or other environmental
31 determination, and affidavit of publication or posting with the
32 district elections official pursuant to Section 9304, the petition
33 may be circulated among the voters of the district for signatures
34 by any person who meets the requirements of Section 102. Each
35 section of the petition shall bear a copy of the notice of intention
36 and statement.
37 SEC. 17. Section 9310 of the Elections Code is amended to
38 read:
39 9310. (a) If the initiative petition is signed by voters not less
40 in number than 10 percent of the voters in the district, where the
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1 total number of registered voters is Tess than 500,000, or not less
2 in number than 5 percent of the voters in the district, where the
3 total number of registered voters is 500,000 or more, and the
4 petition contains a request that the ordinance be submitted
5 immediately to a vote of the people at a special election, the district
6 board shall consider certifying the petition at the next regular
7 meeting after any required public review and comment period. If
8 the initiative petition proposes an activity for which there is
9 substantial evidence supporting a fair argument that the activity
10 has the potential for resulting in either a direct physical change in
11 the environment, or a reasonably foreseeable indirect physical
12 change in the environment, the district board shall declare that the
13 initiative petition proposes an activity that is unsuitable for the
14 initiative process and proceed pursuant to Section 9318. If a
15 negative declaration was prepared for the petition, the negative
16 declaration shall be circulated for public review and comment for
17 at least 20 days before the meeting at which the district board will
18 consider certifying the petition, and the district board shall consider
19 any public comments raised. At the meeting where the district
20 board will consider certifying the petition, the board shall do either
21 of the following:
22 (1) Adopt the ordinance, without alteration, unless a negative
23 declaration was prepared for the petition, in which case only
24 paragraph (2) applies.
25 (2) Immediately order that the ordinance be submitted to the
26 voters, without alteration, pursuant to subdivision (a) of Section
27 1405. The special election shall be funded by the proponent of the
28 initiative petition. If the proponent declines to fund the special
29 election, the ordinance shall be submitted to voters pursuant to
30 subdivision (b) of Section 1405.
31 (b) The number of registered voters referred to in subdivision
32 (a) shall be calculated as of the time of the last report of registration
33 by the county elections official to the Secretary of State made
34 before publication or posting of the notice of intention to circulate
35 the initiative petition.
36 SEC. 18. Section 9311 of the Elections Code is amended to
37 read:
38 9311. If the initiative petition does not request a special
39 election, the district board shall consider certifying the petition at
40 the next regular meeting after any required public review and
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AB 890 —14 —
1 comment period. If the initiative petition proposes an activity for
2 which there is substantial evidence supporting a fair argument that
3 the activity has the potential for resulting in either a direct physical
4 change in the environment, or a reasonably foreseeable indirect
5 physical change in the environment, the district board shall declare
6 that the initiative petition proposes an activity that is unsuitable
7 for the initiative process and proceed pursuant to Section 9318. If
8 a negative declaration was prepared for the petition, the negative
9 declaration shall be circulated for public review and comment for
10 at least 20 days before the meeting at which the district board will
11 consider certifying the petition, and the district board shall consider
12 any public comments raised. At the meeting where the district
13 board will consider certifying the petition, the board shall do either
14 of the following:
15 (a) Adopt the ordinance, without alteration, unless a negative
16 declaration was prepared for the petition, in which case only
17 subdivision (b) applies.
18 (b) Submit the ordinance to the voters, without alteration,
19 pursuant to subdivision (b) of Section 1405, unless the ordinance
20 petitioned for is required to be, or for some reason is, submitted
21 to the voters at a special election pursuant to subdivision (a) of
22 Section 1405. Any special election shall be. funded by the proponent
23 of the initiative petition. If the proponent declines to fund the
24 special election, the ordinance shall be submitted to voters
25 pursuant to subdivision (b) of Section 1405.
26 SEC. 19. Section 9312 of the Elections Code is amended to
27 read:
28 9312. Whenever an ordinance is required by this article to be
29 submitted to the voters of a district at an election, the district
30 elections official shall cause the ordinance to be printed. A copy
31 of the ordinance shall be made available to any voter upon request.
32 The district elections official shall mail with the voter
33 information guide to each voter the following notice printed in no
34 less than 10-point type.
35 "If you desire a copy of the proposed ordinance, please call the
36 district elections official's office at (insert telephone number) and
37 a copy will be mailed at no cost to you."
38 If a negative declaration was prepared for the ordinance, the
39 district elections official shall print a copy of the negative
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1 declaration and similarly notify the public that it is available by
2 request.
3 SEC. 20. Section 9318 is added to the Elections Code, to read:
4 9318. If an initiative petition is signed by not less than the
5 number of voters specified in Section 9310, and the activity
6 proposed by the initiative petition has the potential for resulting
7 in either a direct physical change in the environment, or a
8 reasonably foreseeable indirect physical change in the environment,
9 the district board shall require that an environmental impact report
10 or mitigated negative declaration be prepared to analyze the impacts
11 of the activity proposed by the initiative petition. Once the
12 environmental document is complete, the district board shall hold
13 a public hearing to either approve or deny the proposal.
14 SEC. 21. Section 65867.5 of the Government Code is amended
15 to read:
16 65867.5. (a) A development agreement is a legislative act that
17 shall be approved by ordinance and is subject to referendum.
18 (b) A development agreement cannot be approved by an
19 ordinance adopted through the initiative process.
20 (c) A development agreement shall not be approved unless the
21 legislative body finds that the agreement is consistent with the
22 general plan and any applicable specific plan.
23 (d) A development agreement that includes a subdivision, as
24 defined in Section 66473.7, shall not be approved unless the
25 agreement provides that any tentative map prepared for the
26 subdivision will comply with Section 66473.7.
27 SEC. 22. Section 21065 of the Public Resources Code is
28 amended to read:
29 21065. "Project" means an activity which may cause either a
30 direct physical change in the environment, or a reasonably
31 foreseeable indirect physical change in the environment, and which
32 is any of the following:
33 (a) An activity directly undertaken by any public agency.
34 (b) An activity undertaken by a person which is supported, in
35 whole or in part, through contracts, grants, subsidies, loans, or
36 other forms of assistance from one or more public agencies.
37 (c) An activity that involves the issuance to a person of a lease,
38 permit, license, certificate, or other entitlement for use by one or
39 more public agencies.
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AB 890 —16—
(d) An activity that is proposed by a local initiative measure
2 ate that, if passed or adopted, would be implemented by a public
3 agency.
4 SEC. 23. Section 21152 of the Public Resources Code is
5 amended to read:
6 21152. (a) If a local agency approves or determines to carry
7 out a project that is subject to this division, the local agency shall
8 file notice of the approval or the determination within five working
9 days after the approval or determination becomes final, with the
10 county clerk of each county in which the project will be located.
11 The notice shall identify the person or persons in subdivision (b)
12 or (c) of Section 21065, as reflected in the agency's record of
13 proceedings, and indicate the determination of the local agency
14 whether the project will, or will not, have a significant effect on
15 the environment and shall indicate whether an environmental
16 impact report has been prepared pursuant to this division. The
17 notice shall also include certification that the final environmental
18 impact report, if one was prepared, together with comments and
19 responses, is available to the general public.
20 (b) If a local agency determines that a project is not subject to
21 this division pursuant to subdivision (b) of Section 21080, and the
22 local agency approves or determines to carry out the project, the
23 local agency or the person specified in subdivision (b) or (c) of
24 Section 21065 may file a notice of the determination with the
25 county clerk of each county in which the project will be located.
26 A notice filed pursuant to this subdivision shall identify the person
27 or persons in subdivision (b) or (c) of Section 21065, as reflected
28 in the agency's record of proceedings. A notice filed pursuant to
29 this subdivision by a person specified in subdivision (b) or (c) of
30 Section 21065 shall have a certificate of determination attached
31 to it issued by the local agency responsible for making the
32 determination that the project is not subject to this division pursuant
33 to subdivision (b) of Section 21080. The certificate of
34 determination may be in the form of a certified copy of an existing
35 document or record of the local agency.
36 (c) A notice filed pursuant to this section shall be available for
37 public inspection, and shall be posted within 24 hours of receipt
38 in the office of the county clerk. A notice shall remain posted for
39 a period of 30 days. Thereafter, the clerk shall return the notice to
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1 the local agency with a notation of the period it was posted. The
2 local agency shall retain the notice for not less than 12 months.
3 (d) For a project submitted through the initiative process, a
4 notice filed pursuant to this section shall not be filed until five
5 working days after the initiative petition is adopted or election
6 results approving the initiative are certified.
7 SEC. 24. If the Commission on State Mandates determines
8 that this act contains costs mandated by the state, reimbursement
9 to local agencies and school districts for those costs shall be made
10 pursuant to Part 7 (commencing with Section 17500) of Division
11 4 of Title 2 of the Government Code.
0
98
AMENDED IN SENATE APRIL 4, 2017
AMENDED IN SENATE MARCH 21, 2017
AMENDED IN SENATE MARCH 9, 2017
AMENDED IN SENATE FEBRUARY 21, 2017
SENATE BILL No. 35
Introduced by Senator Wiener
(Principal coauthor: Senator Atkins)
(Coauthor: Senator Allen)
December 5, 2016
An act to amend Sections 65400 and 65582.1 of, and to add Section
65913.4 to, the Government Code, relating to housing.
LEGISLATIVE COUNSEL'S DIGEST
SB 35, as amended, Wiener. Planning and zoning: affordable housing:
streamlined approval process.
(1) The Planning and Zoning Law requires a city or county to adopt
a general plan for land use development within its boundaries that
includes, among other things, a housing element. The Planning and
Zoning Law requires a planning agency, after a legislative body has
adopted all or part of a general plan, to provide an annual report to the
legislative body, the Office of Planning and Research, and the
Department of Housing and Community Development on the status of
the general plan and progress in meeting the community's share of
regional housing needs.
This bill would require the planning agency to include in its annual
report specified information regarding units of housing, including rental
housing and housing designated for homeownership, that have
eompleti2 moor, t uetion. secured all approvals from the local government
95
SB 35 — 2 —
and special districts needed to qualms for a building permit. The bill
would also require the Department of Housing and Community
Development to post an annual report submitted pursuant to the
requirement described above on its Internet Web site, as provided.
(2) Existing law requires an attached housing development to be a
permitted use, not subject to a conditional use permit, on any parcel
zoned for multifamily housing if at least certain percentages of the units
are available at affordable housing costs to very low income, lower
income, and moderate -income households for at least 30 years and if
the project meets specified conditions relating to location and being
subject to a discretionary decision other than a conditional use permit.
Existing law provides for various incentives intended to facilitate and
expedite the construction of affordable housing.
This bill would require at. accc330 a
multifamily housing development that satisfies specified planning
objective standards to be subject to a streamlined, ministerial approval
process, as provided, and to not be subject to a conditional use permit.
The bill would limit the authority of a local government to impose
parking standards or requirements on a streamlined development
approved pursuant to these provisions, as provided. The bill would
provide that if a local government approves a project pursuant to that
process, that approval will not expire if that project includes investment
in housing affordability, and would otherwise provide that the approval
of a project expire automatically after 3 years, unless that project
qualifies for a one-time, one-year extension of that approval.
(3) The bill would make findings that ensuring access to affordable
housing is a matter of statewide concern and declare that its provisions
would apply to all cities and counties, including a charter city, a charter
county, or a charter city and county.
(4) By imposing new duties upon local agencies with respect to the
streamlined approval process and reporting requirement described
above, this bill would impose a state -mandated local program.
(5) The California Constitution requires the state to reimburse local
agencies and school districts for certain costs mandated by the state.
Statutory provisions establish procedures for making that reimbursement.
This bill would provide that no reimbursement is required by this act
for a specified reason.
Vote: majority. Appropriation: no. Fiscal committee: yes.
State -mandated local program: yes.
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The people of the State of California do enact as follows:
1 SECTION 1. Section 65400 of the Government Code is
2 amended to read:
3 65400. (a) After the legislative body has adopted all or part
4 of a general plan, the planning agency shall do both of the
5 following:
6 (1) Investigate and make recommendations to the legislative
7 body regarding reasonable and practical means for implementing
8 the general plan or element of the general plan, so that it will serve
9 as an effective guide for orderly growth and development,
10 preservation and conservation of open -space land and natural
1 1 resources, and the efficient expenditure of public funds relating to
12 the subjects addressed in the general plan.
13 (2) Provide by April 1 of each year an annual report to the
14 legislative body, the Office of Planning and Research, and the
15 Department of Housing and Community Development that includes
16 all of the following:
17 (A) The status of the plan and progress in its implementation.
18 (B) The progress in meeting its share of regional housing needs
19 determined pursuant to Section 65584 and local efforts to remove
20 governmental constraints to the maintenance, improvement, and
21 development of housing pursuant to paragraph (3) of subdivision
22 (c) of Section 65583.
23 The housing element portion of the annual report, as required
24 by this paragraph, shall be prepared through the use of forms and
25 definitions adopted by the Department of Housing and Community
26 Development pursuant to the rulemaking provisions of the
27 Administrative Procedure Act (Chapter 3.5 (commencing with
28 Section 11340) of Part 1 of Division 3 of Title 2). Before and after
29 adoption of the forms, the housing element portion of the annual
30 report shall include a section that describes the actions taken by
31 the local government towards completion of the programs and
32 status of the local government's compliance with the deadlines in
33 its housing element. That report shall be considered at an annual
34 public meeting before the legislative body where members of the
35 public shall be allowed to provide oral testimony and written
36 comments.
37 The report may include the number of units that have been
38 substantially rehabilitated, converted from nonaffordable to
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SB 35 — 4 —
1 affordable by acquisition, and preserved consistent with the
2 standards set forth in paragraph (2) of subdivision (c) of Section
3 65583.1. The report shall document how the units meet the
4 standards set forth in that subdivision.
5 (C) The degree to which its approved general plan complies
6 with the guidelines developed and adopted pursuant to Section
7 65040.2 and the date of the last revision to the general plan.
8 (D) The number of units of housing, including both rental
9 housing and housing designated for homeownership, that have
10 secured all approvals from the local
11 government and special districts needed to qualify for a building
12 permit thus far in the housing element cycle, and the income
13 category, by area median income category, that each unit of
14 housing, including both rental housing and housing designated for
15 homeownership, satisfies. That report shall, for each income
16 category described in this subparagraph, distinguish between the
17 number of rental housing units that satisfy each income category
18 and the number of units that are housing designated for
19 homeownership that satisfy each income category.
20 (E) The Department of Housing and Community Development
21 shall post a report submitted pursuant to this paragraph on its
22 Internet Web site within a reasonable time of receiving the report.
23 (b) If a court finds, upon a motion to that effect, that a city,
24 county, or city and county failed to submit, within 60 days of the
25 deadline established in this section, the housing element portion
26 of the report required pursuant to subparagraph (B) of paragraph
27 (2) of subdivision (a) that substantially complies with the
28 requirements of this section, the court shall issue an order or
29 judgment compelling compliance with this section within 60 days.
30 If the city, county, or city and county fails to comply with the
31 court's order within 60 days, the plaintiff or petitioner may move
32 for sanctions, and the court may, upon that motion, grant
33 appropriate sanctions. The court shall retain jurisdiction to ensure
34 that its order or judgment is carried out. If the court determines
35 that its order or judgment is not carried out within 60 days, the
36 court may issue further orders as provided by law to ensure that
37 the purposes and policies of this section are fulfilled. This
38 subdivision applies to proceedings initiated on or after the first
39 day of October following the adoption of forms and definitions by
40 the Department of Housing and Community Development pursuant
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-5— SB 35
1 to paragraph (2) of subdivision (a), but no sooner than six months
2 following that adoption.
3 SEC. 2. Section 65582.1 of the Government Code is amended
4 to read:
5 65582.1. The Legislature finds and declares that it has provided
6 reforms and incentives to facilitate and expedite the approval and
7 construction of affordable housing. Those reforms and incentives
8 can be found in the following provisions:
9 (a) Housing element law (Article 10.6 (commencing with
10 Section 65580) of Chapter 3).
11 (b) Extension of statute of limitations in actions challenging the
12 housing element and brought in support of affordable housing
13 (subdivision (d) of Section 65009).
14 (c) Restrictions on disapproval of housing developments
15 (Section 65589.5).
16 (d) Priority for affordable housing in the allocation of water and
17 sewer hookups (Section 65589.7).
18 (e) Least cost zoning law (Section 65913.1).
19 (f) Density bonus law (Section 65915).
20 (g) Accessory dwelling units (Sections 65852.150 and 65852.2).
21 (h) By -right housing, in which certain multifamily housing are
22 designated a permitted use (Section 65589.4).
23 (i) No -net -loss -in zoning density law limiting downzonings and
24 density reductions (Section 65863).
25 (j) Requiring persons who sue to halt affordable housing to pay
26 attorney fees (Section 65914) or post a bond (Section 529.2 of the
27 Code of Civil Procedure).
28 (k) Reduced time for action on affordable housing applications
29 under the approval of development permits process (Article 5
30 (commencing with Section 65950) of Chapter 4.5).
31 (1) Limiting moratoriums on multifamily housing (Section
32 65858).
33 (m) Prohibiting discrimination against affordable housing
34 (Section 65008).
35 (n) California Fair Employment and Housing Act (Part 2.8
36 (commencing with Section 12900) of Division 3).
37 (o) Community redevelopment law (Part 1 (commencing with
38 Section 33000) of Division 24 of the Health and Safety Code, and
39 in particular Sections 33334.2 and 33413).
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SB 35 —6-
1 (p) Streamlining housing approvals during a housing shortage
2 (Section 65913.4).
3 SEC. 3. Section 65913.4 is added to the Government Code, to
4 read:
5 65913.4. (a) A development shall be subject to the streamlined,
6 ministerial approval process provided by subdivision (b) and shall
7 not be subject to a conditional use permit if it satisfies all of the
8 following objective planning standards:
9 (1) The development is -ad G..N
10 er a multifamily housing development that contains two or more
11 residential units.
12 (2) The development is located on a site that satisfies both of
13 the following:
14 (A) Is an urban infill site as defined by Section 21061.3 of the
15 Public Resources Code.
16 (B) Is a site zoned for residential use or residential mixed use
17 development with at least two-thirds of the square footage
18 designated for residential use.
19 (3) If the development contains units that are subsidized, the
20 development applicant or development proponent already has
21 recorded, or is required by law to record, a land use restriction that
22 is:
23 (A) Fifty-five years for subsidized units that are rented.
24 (B) Forty-five years for subsidized units that are owned.
25 (4) The development satisfies both of the following:
26 (A) Is located in a locality that, according to its last production
27 report to the Department of Housing and Community Development,
28 ebmpktcd co„ o approved fewer units of housing by
29 income category than was required for the regional housing needs
30 assessment cycle for that reporting period, or has not submitted
31 an annual housing element report to the Department of Housing
32 and Community Development pursuant to paragraph (2) of
33 subdivision (a) of Section 65400 for at least two consecutive years
34 before the development submitted an application for approval
35 under this section.
36 (B) The development is subject to a requirement mandating a
37 minimum percentage of below market rate housing based on either
38 of the following:
39 (i) The locality did not submit its latest production report to the
40 Department of Housing and Community Development by the time
95
-7— SB35
1 period required by Section 65400, or that report reflects that there
2 were fewer units of above moderate -income housing co_d
3 approved than was required for the regional housing needs
4 assessment cycle for that year, and the project seeking approval
5 dedicates a minimum of 10 percent of the total number of units to
6 housing affordable to households making below 80 percent of the
7 area median income, unless the locality has adopted a local
8 ordinance that requires that greater than 10 percent of the units be
9 dedicated to housing affordable to households making below 80
10 percent of the area median income, in which case that zoning
11 ordinance applies.
12 (ii) The locality did not submit its latest production report to
13 the Department of Housing and Community Development by the
14 time period required by Section 65400, or that report reflects that
15 there were fewer units of housing affordable to households making
16 below 80 percent of the area median incomes approved
17 than was required for the regional housing needs assessment cycle
18 for that year, and the project seeking approval dedicates the
19 majority of the total number of units to housing affordable to
20 households making below 80 percent of the area median income,
21 unless the locality has adopted a local ordinance that requires that
22 greater than the majority of the units be dedicated to housing
23 affordable to households making below 80 percent of the area
24 median income, in which case that ordinance applies.
25 (5) The development is consistent with objective zoning
26 standards. including the Density Bonus Law in Section 65915, and
27 objective design review standards in effect at the time that the
28 development is submitted to the local government pursuant to this
29 section. For purposes of this paragraph, "objective zoning
30 standards" and "objective design review standards" mean standards
31 that involve no personal or subjective judgment by a public official.
32 (6) The development is not located on a site that is any of the
33 following:
34 (A) A coastal zone, as defined in Division 20 (commencing
35 with Section 30000) of the Public Resources Code.
36 (B) Either prime farmland or farmland of statewide importance,
37 as defined pursuant to United States Department of Agriculture
38 land inventory and monitoring criteria, as modified for California,
39 and designated on the maps prepared by the Farmland Mapping
40 and Monitoring Program of the Department of Conservation, or
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SB 35 —8-
1 land zoned or designated for agricultural protection or preservation
2 by a local ballot measure that was approved by the voters of that
3 jurisdiction.
4 (C) Wetlands, as defined in Gc.cti:mn 328.3 of Title 33 of the
5 the United States Fish and Wildlife
6 Service Manual, Part 660 FW 2 (June 21, 1993).
7 (D) Within a very high fire hazard severity zone, as determined
8 by the Department of Forestry and Fire Protection pursuant to
9 Section 51178, or within a high or very high fire hazard severity
10 zone as indicated on maps adopted by the Department of Forestry
11 and Fire Protection pursuant to Section 4202 of the Public
12 Resources Code. This subparagraph does not apply to sites
13 excluded from the specified hazard zones by a local agency,
14 pursuant to subdivision (b) of Section 51179, or sites that have
15 adopted sufficient fire hazard mitigation measures as may be
16 determined by their local agency with land use authority.
17 (E) A hazardous waste site that is listed pursuant to Section
18 65962.5 or a hazardous waste site designated by the Department
19 of Toxic Substances Control pursuant to Section 25356 of the
20 Health and Safety Code, unless the Department of Toxic
21 Substances Control has cleared the site for residential use or
22 residential mixed uses.
23 (F) Within a delineated earthquake fault zone as determined by
24 the State Geologist in any official maps published by the State
25 Geologist.
26 (G) Within a flood plain as determined by maps promulgated
27 by the Federal Emergency Management Agency, unless the
28 development has been issued a flood plain development permit
29 pursuant to Part 59 (commencing with Section 59.1) and Part 60
30 (commencing with Section 60.1) of Subchapter B of Chapter 1 of
31 Title 44 of the Code of Federal Regulations.
32 (H) Within a floodway as determined by maps promulgated by
33 the Federal Emergency Management Agency, unless the
34 development has received a no rise certification in accordance
35 with paragraph (3) of subdivision (d) of Section 60.3 of Title 44
36 of the Code of Federal Regulations.
37 (I) Lands identified for conservation in an adopted natural
38 community conservation plan pursuant to the Natural Community
39 Conservation Planning Act (Chapter 10 (commencing with Section
40 2800) of Division 3 of the Fish and Game Code), habitat
95
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1 conservation plan pursuant to the federal Endangered Species Act
2 of 1973 (16 U.S.C. Sec. 1531 et seq.), or other adopted natural
3 resource protection plan.
4 (J) Habitat for protected species identified as candidate,
5 sensitive, or species of special status by state or federal agencies,
6 fully protected species, or species protected by the federal
7 Endangered Species Act of 1973 (16 U.S.C. Sec. 1531 et seq.), the
8 California Endangered Species Act (Chapter 1.5 (commencing
9 with Section 2050) of Division 3 of the Fish and Game (.'ode), or
10 the Native Plant Protection Act (Chapter 10 (commencing with
11 Section 1900) of Division 2 of the Fish and Game Code).
12 (K) Lands under conservation easement.
13 (7) The development does not require the demolition of either
14 of the following:
15 (A) Housing that is subject to rent control, housing that is subject
16 to deed restrictions, or any housing that has been occupied by
17 residents within the past 10 years by tenants.
18 (B) A historic structure that was placed on a national, state, or
19 local historic register.
20 (8) The development proponent has certified that either of the
21 following is true:
22 (A) The project is a public work for purposes of Chapter 1
23 (commencing with Section 1720) of Part 7 of Division 2 of the
24 Labor Code.
25 (B) If the project is not a public work, that all construction
26 workers employed in the execution of the project will be paid at
27 least the general prevailing rate of per diem wages for the type of
28 work and geographic area, as determined by the Director of
29 Industrial Relations pursuant to Sections 1773 and 1773.9 of the
30 Labor Code. If the development is subject to this subparagraph,
31 then all of the following shall apply:
32 (i) The development proponent shall ensure that the prevailing
33 wage requirement is included in all contracts for the performance
34 of the work.
35 (ii) Contractors and subcontractors shall pay to all construction
36 workers employed in the execution of the work at least the general
37 prevailing rate of per diem wages.
38 (iii) Except as provided in clause (iv), the obligation of the
39 contractors and subcontractors to pay prevailing wages may be
40 enforced by the Labor Commissioner through the issuance of a
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SB35 —10-
1 civil wage and penalty assessment pursuant to Section 1741 of the
2 Labor Code, which may be reviewed pursuant to Section 1742 of
3 the Labor Code, within 18 months after the completion of the
4 project, or by an underpaid worker through an administrative
5 complaint or civil action. If a civil wage and penalty assessment
6 is issued, the contractor, subcontractor, and surety on a bond or
7 bonds issued to secure the payment of wages covered by the
8 assessment shall be liable for liquidated damages pursuant to
9 Section 1742.1 of the Labor Code.
10 (iv) Clause (iii) shall not apply if all contractors and
11 subcontractors performing work on the project are subject to a
12 project labor agreement that requires the payment of prevailing
13 wages to all construction workers employed in the execution of
14 the project and provides for enforcement of that obligation through
15 an arbitration procedure. For purposes of this clause, "project labor
16 agreement" has the same meaning as set forth in paragraph (1) of
17 subdivision (b) of Section 2500 of the Public Contract Code.
18 (v) Notwithstanding subdivision (c) of Section 1773.1 of the
19 Labor Code, the requirement that employer payments not reduce
20 the obligation to pay the hourly straight time or overtime wages
21 found to be prevailing shall not apply if otherwise provided in a
22 bona fide collective bargaining agreement covering the worker.
23 The requirements of paragraph (2) of subdivision (c) of Section
24 1773.1 of the Labor Code do not preclude use of an alternative
25 workweek schedule adopted pursuant to Section 511 or 514 of the
26 Labor Code.
27 (9) The development shall not be upon an existing parcel of
28 land or site that is governed under the Mobilehome Residency Law
29 (Chapter 2.5 (commencing with Section 798) of Title 2 of Part 2
30 of Division 2 of the Civil Code), the Recreational Vehicle Park
31 Occupancy Law (Chapter 2.6 (commencing with Section 799.20)
32 of Title 2 of Part 2 of Division 2 of the Civil Code), the
33 Mobilehome Parks Act (Part 2.1 (commencing with Section 18200)
34 of Division 13 of the Health and Safety Code), or the Special
35 Occupancy Parks Act (Part 2.3 (commencing with Section 18860)
36 of Division 13 of the Health and Safety Code).
37 (b) (1) If a local government determines that a development
38 submitted pursuant to this section is in conflict with any of the
39 objective planning standards specified in subdivision (a), it shall
40 provide the development proponent written documentation of
95
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1 which standard or standards the development conflicts with, and
2 an explanation for the reason or reasons the development conflicts
3 with that standard or standards, as follows:
4 (A) Within 60 days of submittal of the development to the local
5 government pursuant to this section if the development contains
6 150 or fewer housing units.
7 (B) Within 90 days of submittal of the development to the local
8 government pursuant to this section if the development contains
9 more than 150 housing units.
10 (2) If the local government fails to provide the required
11 documentation pursuant to paragraph (1), the development shall
12 be deemed to satisfy the objective planning standards specified in
13 subdivision (a).
14 (c) Any design review of the development may be conducted
15 by the local government's supervising body for design review,
16 including a planning department or city council• council. That
17 design review shall be objective and reflect reasonable objective
18 design standards published and adopted by a local jurisdiction
19 before submission of a development application, and shall he
20 broadly applicable to development within the jurisdiction. That
21 design review shall be completed as follows and shall not in any
22 way inhibit, chill, or preclude the ministerial approval provided
23 by this section or its effect, as applicable:
24 (1) Within 90 days of submittal of the development to the local
25 government pursuant to this section if the development contains
26 150 or fewer housing units.
27 (2) Within 180 days of submittal of the development to the local
28 government pursuant to this section if the development contains
29 more than 150 housing units.
30 (d) (1) Notwithstanding any other law, a local government,
31 whether or not it has adopted an ordinance governing parking
32 requirements in multifamily developments, shall not impose
33 parking standards for a streamlined development in any of the
34 following instances:
35 (A) The development is located within one-half mile of public
36 transit.
37 (B) The development is located within an architecturally and
38 historically significant historic district.
39 (C) When on -street parking permits are required but not offered
40 to the occupants of the development.
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SB35 —12-
1 (D) When there is a car share vehicle located within one block
2 of the development.
3 (2) Parking requirements for streamlined developments shall
4 not exceed one parking space per unit. J _ all. of
5 am/0 to bcc;c 350 ' pre. ceta G•. �f. ribcd in
6 penag►a
7 (3) A
8 vyuircii cnts for a
9 at thit ;J bra acccaaa
10 (e) (1) If a local government approves a development pursuant
1 1 to this section, that approval shall not expire if the project includes
12 public investment in housing affordability, beyond tax credits,
13 where the majority of the units are affordable to households making
14 below 80 percent of the area median income.
15 (2) If a local government approves a development pursuant to
16 this section and the project does not include a majority of the units
17 affordable to households making below 80 percent of the area
8 median income, that approval shall automatically expire after three
19 years except that a project may receive a one-time, one-year
20 extension if the project proponent can provide documentation that
21 there has been significant progress toward getting the development
22 construction ready.
23 (f) For purposes of this section, "locality" or "local government"
24 means a city, including a charter city, a county, or a city and
25 county, including a charter city and county.
26 (g) For purposes of this section, "production report" means the
27 information reported pursuant to subparagraph (D) of paragraph
28 (2) of subdivision (a) of Section 65400.
29 SEC. 4. The Legislature finds and declares that ensuring access
30 to affordable housing is a matter of statewide concern, and not a
31 municipal affair. Therefore, the changes made by this act are
32 applicable to a charter city, a charter county, and a charter city and
33 county.
34 SEC. 5. Each provision of this measure is a material and
35 integral part of this measure, and the provisions of this measure
36 are not severable. If any provision of this measure or its application
37 is held invalid, this entire measure shall be null and void.
38 SEC. 6. No reimbursement is required by this act pursuant to
39 Section 6 of Article XIII B of the California Constitution because
40 a local agency or school district has the authority to levy service
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-13— SB35
1 charges, fees, or assessments sufficient to pay for the program or
2 level of service mandated by this act, within the meaning of Section
3 17556 of the Government Code.
0
95
AMENDED IN SENATE MARCH 28, 2017
SENATE BILL No. 649
Introduced by Senator Hueso
(Principal coauthor: Assembly Member Quirk)
(Coauthor: Senator Dodd)
February 17, 2017
An act to amend- fi; t:::+3 Section 65964--f of and to
add Section 65964.2 to, the Government Code, relating to
telecommunications.
LEGISLATIVE COUNSEL'S DIGEST
SB 649, as amended, Hueso. Wireless telecommunications facilities.
Under existing law, a wireless telecommunications collocation facility,
as specified, is subject to a city or county discretionary permit and is
required to comply with specified criteria, but a collocation facility,
which is the placement or installation of wireless facilities, including
antennas and related equipment, on or immediately adjacent to that
wireless telecommunications collocation facility, is a permitted use not
subject to a city or county discretionary permit. E;;;:il;:gig law rlcfines
This bill would provide that a small cell is a permitted use, not subject
to a city or county discretionary permit, if the small cell meets specified
requirements. By imposing new duties on local agencies, this hill would
impose a state -mandated local program. The hill would authorize a
city or county to require an administrative permit for small cell, as
specified The hill would define the term "small cell" a;, a Errticular
type of `ciccomm• ;:cct,;6:13 facility for these purposes.
Under existing law, a city or county, as a condition of approval of an
application for a permit for construction or reconstruction of a
98
SB 649 — 2 —
development project for a wireless telecommunications facility, may
not require an escrow deposit for removal of a wireless
telecommunications facility or any component thereof, unreasonably
limit the duration of any permit for a wireless telecommunications
facility, or require that all wireless telecommunications facilities be
limited to sites owned by particular parties within the jurisdiction of
the city or county, as specified.
This bill would -apply thzx preH+bitio 3 t:
a3 do require permits for these facilities to
be renewed for equivalent durations, as specified.
The California Constitution requires the state to reimburse local
agencies and school districts for certain costs mandated by the state.
Statutory provisions establish procedures for making that
reimbursement.
This bill would provide that no reimbursement is required by this act
for a specified reason.
Vote: majority. Appropriation: no. Fiscal committee: Ito -yes.
State -mandated local program: no -yes.
The people of the State of California do enact as fellows:
1 SECTION 1. The Legislature finds and declares that, to ensure
2 that communities across the state have access to the most advanced
3 wireless communications technologies and the transformative
4 solutions that robust wireless connectivity enables, such as Smart
5 Communities and the Internet of Things, California should work
6 in coordination with federal, state, and local officials to create a
7 statewide framework for the deployment of advanced wireless
8 communications infrastructure in California that does all of the
9 following:
10 (a) Reaffirms local governments' historic role and authority
1 1 with respect to wireless communications infrastructure siting and
12 construction generally.
13 (b) Reaffirms that deployment of telecommunications facilities
14 in the rights -of -way is a matter of statewide concern, subject to a
15 statewide franchise, and that expeditious deployment of
16 telecommunications networks generally is a matter of both
17 statewide and national concern.
18 (c) Recognizes that the impact on local interests from individual
19 small wireless facilities will be sufficiently minor and that such
98
— 3 — SB 649
1 deployments should be a permitted use statewide and should not
2 be subject to discretionary zoning review.
3 (d) Requires expiring permits for these facilities to be renewed
4 so long as the site maintains compliance with use conditions
5 adopted at the time the site was originally approved.
6 (e) Requires providers to obtain all applicable building or
7 encroachment permits and comply with all related health, safety,
8 and objective aesthetic requirements for small wireless facility
9 deployments on a ministerial basis.
10 (f) Grants providers fair, reasonable, nondiscriminatory, and
1 1 nonexclusive access to locally owned utility poles, street lights,
12 and other suitable host infrastructure located within the public
13 right-of-way and in other local public places such as stadiums,
14 parks, campuses, hospitals, transit stations, and public buildings
15 consistent with all applicable health and safety requirements,
16 including Public Utilities Commission General Order 95.
17 (g) Provides for full recovery by local governments of the costs
18 of attaching small wireless facilities to utility poles, street lights,
19 and other suitable host infrastructure in a manner that is consistent
20 with existing federal and state laws governing utility pole
21 attachments generally.
22 (h) Permits local governments to charge wireless permit fees
23 that are fair, reasonable, nondiscriminatory, and cost based.
24 (i) Advances technological and competitive neutrality while not
25 adding new requirements on competing providers that do not exist
26 today.
27 SEC. 2. Scctioi1 C: , 13 ..1 cnclGd
28 te-read-
29 65850.6. (a) A tJl✓Gti3n-fs;,ilityj 3h
30 subject tv a city Ji :V iii at'y 8.3cr(.t:6i.Giy
31 €a1-1y.‘ jab i:yti-rentents:
32 (1) TIic oliocation €a�r1'�) i3 i Jnais(ccifit-w-i-th-rettlaircmC:CJ for
33 tlte-1#irelc 33 a ol1oc
34 sttbdivi3ion (b) Jn i r. tic' i
35 (2) The wtrcL33 t;,lccommuttieatiett5 J:1
36 wh-icia tht cr,Aloccticm i3 propoJtd NNW 3ulritct t3 a
37 ;tic,..exiy--pettttt-by th:, city :rr ter
38 ,
39 i it was adopted for the w1rcic33
40 :x1.lJcliti:.i7 fi:,i1(tiy in compliant:, with t11:
98
SB 649 —4 —
1 Dio i3ion 13 (cot„tiictic,'tt1g
2 with Gcct:J21 2
3 reqtti,t mt trt3 f 21166 dornot-app y;-a l-Nsc c✓I✓, �t.i�:r
4 €te;I;ty;::.. oipota
5 en..;r„..,,n ,
6 negati1AC ','`-'.oration.
7 (b)--A-vv cIc33 Qcicc ,ni iuttieation3 cJl1JC ,
8 Gcility" i3 rA a,,::11t': d U ac( 3...bjeet-to
9 a cty ✓r ur ivi3i✓1
10 t:, G city" cir coitrtty dise:A,t:: �.dt'J--perrnit i33u. d- fi
11 and 3r'tall Dorn
12 (1) City :rr cc —AAA). -a; trire lcntsfor a wily lcss
13 tciccow..Y.._:cation3 cJll6cation-futility lhtt 3peeifteS-types--af
14 wirelc33 Li....vmm ap~s ` cili ic ta
all: -.td tJ ;:1clude
..
15 a GJIIJattort faei y, or typc3 f,- ir:,k tciceontrnuitieatterrts
16 f c•litics that aic alluA‘
17 fa✓liti;.3; hcbht, I✓✓Gti:,r—bulk, Gild siLc :rf the wireless
18 te& communieation3 x k tki ,
19
20 otto f iliti .s. _a s`hciti J"
21 w-i'rcl:a3 tcl.\,mt„unieatiern3 :aeility.
22 (2) City or .\,u:lty rc,yuircrncnts for a Ytowo3:,1-colleeation
23 , f CJIIJGCti:J:1 fc.:I:t:c3 due, inay be
24 allowed Ja u r ircicn tdccot„matrictti:r13 1✓✓ ' ,
25 n;-balk, and 3i±c vf-allowed c lotzet;on ara>rtittics;
26 ii`.rnca s-f�:,: & .vIJcation facility.
27 (-3) C1.[.l, o, including-thc 6:,:1::r:I planTany
28 appliettFl.c. CJn n ,
29 f`,::1;G Cnt i::, .:.c.lta1-Q::ality Act (Divi3i;n 13
30 ll, C;.li.,t
31 through-eertif u.!;„a cifan-env c,ia ,l.atal ; ,
32 ati JrI
33 (c) The-eity Jr cJuaty sI':all 1-:J1d at Ie
34 ;vi.r6:1 (
35 a;t to tkcr ,
36
37 ,
38 (1) "CJI:x,tli,rl c:cG::.cat „rinvcllat:,:�
39 of-wiretess-fac:Ikic3, ;:1 adi.►b c::1, :1:1tx�, Gild rclatcd x uiN::;cat,
98
— 5 — S B 649
I on, Ji` imm It to, a v:i -re Ic33 tGlc
2
3 (2) "Small cell" .v-ircic3.Nl; l; :: alal;:ili: ct nor facility
4 within—thc vJ1an,c 1irnit3 cAt1iblishcd by the F';�craF
5 Cotrtri un oa;oiiCommis
sion fo mall vvili.lc"" IV LI
6 nt tc Tiationwide
7 l 111g1 Qeft InCCIIe
8 (47 C.F.R. Part 1 Appendix B).
9 (3) "Wircic:, t:.l x xiim
10 and -network t, i n p o I L, I I I.5
11 /£J:, 3t11f3:13, Gfd,,Iiicrgcrlc) powv`e 3)3L:.13 that GI'c {flt:6kG1 tJ
12
13 4 1-ircic3J tcly mrrierlei:r.1J .x,1Feeation--fucilty" wcan3
14 a ; icicJ3 lciccomrn c3 collocation
15 f "rzr�ilities
16 (e Tllc Lcg' l Jfn&Il cell Gild
17 tV 1JGt:�/1 G3 dcc;ncd in tkiJ ye: t::,?l, have -a -significant
18 tconom
19 that —term i3 u3cd in Ecction 5 of Article XI Jr `hc
20 Constitution, but Gl'. & matte" or :vidc conccn-r.
21 (f) Withtc3pcdc io the con3'dcra`ion of thee-..irorlrnCnidi-effeets
22 i33ion ,
23 be limited t:. tilt!, &tithorizcd by 3cction 332(c)(7) of Tkk 47-of
24 the United States C:�c, c, GJ thct JcctiGrr-rr y Ix hcrea€ter
25 amentletIT
26 SEC. 3.
27 SEC. 2. Section 65964 of the Government Code is amended
28 to read:
29 65964. As a condition of approval ofan application for a permit
30 for construction or reconstruction for a development project for a
31 wireless telecommunications-fuility 3:.1GI1 ,ill, facility, as
32 defined in Section 65850.6, a city or county shall not do any of
33 the following:
34 (a) Require an escrow deposit for removal of a wireless
35 telecommunications facility or any component thereof. However,
36 a performance bond or other surety or another form of security
37 may be required, so long as the amount of the bond security is
38 rationally related to the cost of removal. In establishing the amount
39 of the security, the city or county shall take into consideration
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SB 649 — 6 —
1 information provided by the permit applicant regarding the cost
2 of removal.
3 (b) Unreasonably limit the duration of any permit for a wireless
4 telecommunications facility. Limits of less than 10 years are
5 presumed to be unreasonable absent public safety reasons or
6 substantial land use reasons. However, cities and counties may
7 establish a build -out period for a site. A permit shall be renewed
8 for an equivalent duration unless the city or county makes afinding
9 that the wireless telecommunications facility does not comply with
10 the codes and permit conditions applicable at the time the permit
11 was initially approved.
12 (c) Require that all wireless telecommunications facilities be
13 limited to sites owned by particular parties within the jurisdiction
14 of the city or county.
15 SEC. 3. Section 65964.2 is added to the Government Code, to
16 read:
17 65964.2. (a) A small cell shall he a permitted use not subject
18 to a city or county discretionary permit if it satisfies the.following
19 requirements:
20 (1) The small cell is located in the public right-of-way in any
21 zone or in any zone that includes a commercial or industrial use.
22 (2) The small cell complies with all applicable state and local
23 health and safety regulations.
24 (3) The small cell is not located on a fire department facility.
25 (h) (1) A city or county may require that the small cell be
26 approved pursuant to a single administrative permit provided that
27 the permit is issued within the time frames required by state and
28 federal law.
29 (2) An administrative permit may be subject to the following:
30 (A) The same administrative permit requirements as similar
31 construction projects applied in a nondiscriminatory manner.
32 (B) The submission of additional information showing that the
33 small cell complies the Federal Communications Commission's
34 regulations concerning radio frequency emissions referenced in
35 Section 332(c)(7)(B)(iv) of Title 47 of the United States Code.
36 (3) The administrative permit shall not be subject to:
37 (A) Requirements to provide additional services, directly or
38 indirectly, including, but not limited to, in -kind contributions such
39 as reserving fiber, conduit, or pole space.
98
— 7 — SB 649
1 (B) The submission of any additional information other than
2 that required ofsimilar construction projects, except as specifically
3 provided in this section.
4 (C) Limitations on routine maintenance or the replacement of
5 small cells with small cells that are substantially similar, the same
6 size or smaller.
7 (D) The regulation of any antennas mounted on cable strands.
8 (c) A city or county shall not preclude the leasing or licensing
9 of its vertical infrastructure located in public right-of-way or public
10 utility easements under the terms set forth in this paragraph.
11 Vertical infrastructure shall be made available under fair and
12 reasonable fees, terms, and conditions and offered on a
13 nondiscriminatory basis for small cells. Fees shall he cost -based,
14 and shall not exceed the lesser of either of the following:
15 (1) The costs of ownership of the percentage of the volume of
16 the capacity of the vertical infrastructure rendered unusable by a
17 small cell.
18 (2) The rate produced by applying the formula adopted by the
19 Federal Communications Commission for telecommunications
20 pole attachments in Section 1.1409(e)(2) of Part 47 of the Code
21 of Federal Regulations.
22 (d) A city or county shall not unreasonably discriminate in the
23 leasing or licensing of property not located in the public
24 right-of-way owned or operated by the city or county for
25 installation of a small cell. A city or county shall authorize the
26 installation of a small cell on property owned or controlled by the
27 city or county not located within the public right-of-way to the
28 same extent the city or county permits access to that property for
29 commercial projects or uses. These installations shall be subject
30 to reasonable and nondiscriminatory rates, terms, and conditions.
31 (e) For purposes of this section, the .following terms have the
32 .following meanings:
33 (1) (A) "Small cell" means a wireless telecommunications
34 facility, as defined in Section 65850.6, using licensed or unlicensed
35 spectrum that meets the. following qualifications':
36 (i) Any individual antenna, excluding the associated equipment,
37 is individually no more than three cubic feet in volume, and all
38 antennas on the structure total no more than six cubic feet in
39 volume, whether in a single array or separate.
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SB 649 — 8 —
1 (ii) (I) The associated equipment on pole structures does not
2 exceed 21 cubic feet for poles that can support fewer than three
3 providers or 28 cubic feet for pole collocations that can support
4 at least three providers, or the associated equipment on nonpole
5 structures does not exceed 28 cubic feet for collocations that can
6 support fewer than three providers or 35 cubic feet for collocations
7 that can support at least three providers.
8 (1I) The following types of associated ancillary equipment are
9 not included in the calculation of equipment volume:
10 (ia) Electric meters and any required pedestal.
11 (ib) Concealment elements.
12 (ic) Any telecommunications demarcation box.
13 (id) Grounding equipment.
14 (ie) Power transfer switch.
15 (if) Cut-off switch.
16 (ig) Vertical cable runs for the connection of power and other
17 services.
18 (B) "Small cell" does not include communications infrastructure
19 extending beyond the telecommunications demarcation box.
20 (2) "vertical infrastructure " means all poles or similar facilities
21 owned or controlled by a city or county that are in the public
22 right-of-way or public utility easements and meant for, or used in
23 whole or in part for, communications service, electric service,
24 lighting, traffic control, signage, or similar functions.
25 (f) The Legislature finds and declares that small cells, as defined
26 in this section, have a significant economic impact in California
27 and are not a municipal affair as that term is used in Section 5 of
28 Article XI of the California Constitution, but are a matter of
29 statewide concern.
30 SEC. 4. No reimbursement is required by this act pursuant to
31 Section 6 of Article XIII B of the California Constitution because
32 a local agency or school district has the authority to levy service
33 charges, fees, or assessments sufficient to payfor the program or
34 level of service mandated by this act, within the meaning of Section
35 17556 of the Government Code.
0
98