December 9, 1998 - Land Use Decisions and Standards

"Land Use Decisions and Standards"
 

A Background Staff Paper for the Special Hearing
 

December 9, 1998
State Capitol, Room 3191
Sacramento

 

Introduction
Revising the Local Approval Process
Overview of Planning and Development Decisions
Proposed Policy Shifts

1. Project-specific decisions
2. Policies and ordinances
3. Nexus rules
4. Mitigation standards
5. Judicial review
6. Effect on CEQA

Other Legislation
Anecdotes, Examples, and Evidence
Sources and Credits
 

 

 

 

Land Use Decisions and Standards

 

This background paper prepares the members of the Senate Local Government Committee and other legislators for the special hearing on Land Use Decisions and Standards on Wednesday morning, December 9, 1998, at the State Capitol.

On July 8, 1998, Assemblyman Dennis Cardoza presented Assembly Bill 2621 to the Committee. Sponsored by the California Chamber of Commerce, AB 2621 would have altered the way in which cities and counties review and approve land use development proposals. In addition, the bill would have changed the standards that state and local officials use to impose conditions on development projects.

Rather than act on AB 2621 that day, the Committee voted 5-0 to hold a full hearing on those issues. After the Committee declined to act on AB 2621, Assemblyman Hertzberg took over the authorship of the bill and used it for another purpose.

Legislative committees hold special hearings to allow their members to learn more about policy issues before they have to vote on specific bills. Rather than asking the Committee to review the specific contents of the July 6, 1998 version of his AB 2621, Assemblyman Cardoza and the California Chamber of Commerce asked the Committee to explore six general proposals.

 

Revising the Local Agency Approval Process

 

Assemblyman Cardoza is considering the introduction of new legislation in 1999 to revise the process by which local officials review and approve development projects. With his six proposals, Mr. Cardoza wants to achieve three purposes:

• The Arnel decision. Rationalize Arnel by removing the artificial designation between administrative and legislative decisions when they relate to a single project approval.
   
• Mitigation standards. Ensure that potential negative impacts of proposed projects are appropriately mitigated in order to protect communities from being harmed as a result of a project approval. Once the appropriate level of mitigation has been set, consideration should be given to the interests of the applicant.
   
• Broad, not ad hoc, mitigation. More specifically, the proposal seeks to clarify the role of the local legislative body when it is operating under its police powers for the protection of the welfare of the community. Conditions applied under the Planning and Zoning Law and the Subdivision Map Act should be used to mitigate potential harm from the proposed project, not as a means of improving the general quality of life in the community. Laws and regulations of general application should be used for these broader purposes and not be implemented on an ad hoc basis.

It is not Assemblyman Cardoza's intent to include school developer fees in his 1999 bill. To achieve his three purposes, Assemblyman Cardoza proposes six revisions to the process by which local agencies approve development projects:

• Project-specific decisions: Treat all necessary approvals for the completion of a specific project, including general plan and zoning changes, separately from policies and ordinances of general application to the community.
   
• Policies and ordinances: Policies and ordinances of general application include policies adopted by a local legislative body for the preservation, protection, and/or improvement of the community and not part of a specific project approval. Examples include, but are not limited to, agriculture preservation easements, Williamson Act, historic preservation ordinances, general plan updates, sign limitation ordinances, art fees, and parking ordinances.
   
• Nexus rules: Clarify that the standard used by local agencies in levying obligations, dedications, and exactions is that there be both a reasonable relationship between its use and its impact, and that the magnitude be roughly proportional to the proposed project's impact.
   
• Mitigation standards: Retain existing requirements that project impacts be mitigated; however, to the extent that they are mitigated that the specific mitigation be the measure most consistent with the applicant's intended use and/or least burdensome.
   
• Judicial review: Standards for review for a challenge of a legislative body's determination that the condition was the "most consistent with the applicant's intended use and/or least burdensome" would be based on substantial evidence in light of the full record.
   
• Effect on CEQA: Apply the proposed revisions to the California Environmental Quality Act (CEQA) only to the extent that the approval is related to a specific project as compared to a policy or ordinance of general application.

Before reviewing the context of these proposals and the policy issues they raise, legislators and other participants need a general understanding of what state law requires for planning and development decisions.

 

Overview of Planning and Development Decisions

 

In a recent review of California land use regulations, the noted legal commentator Daniel J. Curtin, Jr. summarized the courts' land use decisions into four basic considerations:

• The police power is a broad, expansive land use power.
• There is no right to develop in California; it is a privilege.
• In attaching conditions to development, the courts will look for a proper "nexus" between the burdens of the project and the condition imposed when considering the reasonableness of the action. The burden is on the city to justify the dedication or imposition of an ad hoc impact fee.
• The court will not substitute its judgment for that of the city's legislative judgement as long as the city's action bears a reasonable relationship to the public welfare.

Curtin also noted that with a few exceptions the police power of a city or county is as broad as the legislative power of the California Legislature. However, if a city or county fails to use its police power within constitutional mandates or statutory provisions (especially procedural requirements), the courts will overturn local decisions. Local officials, Curtin concluded, "have the authority to regulate for the public health, safety, and general welfare; it simply must be exercised in the proper manner."

Since 1937, state law has required every city and county to adopt a general plan for the physical development of its territory and adjacent areas. The California Supreme Court recognizes the general plan to be the "constitution for all future developments." The Planning and Zoning Law now requires every general plan to contain seven mandated elements: · Land use · Circulation (transportation) · Housing · Conservation · Open space · Noise · Safety

Depending on the location of the city or county, other state laws require local general plans to contain additional topics or require them to conform to other regional plans. These other topics include: coastal issues, significant minerals, solid waste, hazardous waste, earthquake faults, airport land use, and transportation congestion management. State law allows cities and counties to include any other issues of local relevance as optional elements. All parts of a city or county general plan must be internally consistent with each other, a doctrine that planners and land use attorneys call horizontal consistency. Cities and counties may also adopt specific plans that provide more detailed guidance for designated areas within their jurisdiction.

Starting in the 1970s, statutes and court decisions required most major land use decisions to be consistent with local general plans, including zoning, subdivisions, public works projects, and use permits. Planners and land use attorneys call this doctrine vertical consistency.

The California Environmental Quality Act (CEQA) requires state and local officials to consider the environmental consequences of proposed projects, both public works projects and proposals for private development. If a project would not result in significant effects, CEQA allows officials to issue a negative declaration. If a project may result in significant adverse environmental effects, officials must prepare and circulate an environmental impact report (EIR). CEQA requires officials to avoid or mitigate the project's adverse effects. Officials may approve a project with unavoidable or unmitigated effects if they find that there are overriding social or economic considerations. Survey research shows that the vast majority of CEQA reviews results in negative declarations, not EIRs. About 95% of CEQA reviews by cities and counties result in negative declarations. Although controversial, litigation is relatively rare; just one lawsuit for every 354 CEQA reviews by cities and counties, or about one suit for every 18 EIRs.

 

Proposed Policy Shifts

 

The California Chamber of Commerce wants the Legislature to change the way that public officials make land use decisions and apply standards in six significant ways. To help the Committee members understand these proposals, this section of the background paper explores each proposal by setting context and raising policy questions that the Senators may want to ask.

1. Project-specific decisions.

California's land use laws distinguish between two types of decisions: legislative acts and administrative acts. This crucial distinction drives how landowners, builders, environmentalists, neighbors, and public officials approach land use development projects.

Legislative acts make policy. The adoption and amendment of general plans, specific plans, zoning ordinances, and development agreements are all legislative acts by which city councils and county supervisors establish goals, policies, and standards for future land uses. When someone challenges a legislative act, the courts apply a relatively low standard of review called ordinary mandamus. Judges usually uphold the policies adopted by elected officials, unless a decision was arbitrary, capricious, or entirely lacking in evidence or if officials failed to follow the required procedures. Administrative acts apply established policies to specific properties. Approving subdivision maps, issuing conditional use permits, and granting zoning variances are all administrative acts. Some observers call administrative acts, adjudicatory or quasi-judicial decisions. Sometimes administrators make these decisions; sometimes local elected officials make them. It's not the decisionmaker's identity that makes the difference, it's the nature of the decision. Administrative decisions require officials to make written findings that "bridge the gap" and explain the connection between the established policy and the specific property affected by the land use decision. When someone challenges an administrative act, the courts apply a higher standard of review called administrative mandamus. The judges inquire if the decision and the findings are supported by substantial evidence in the record.

The chart below displays these differences for land use decisions.

Land Use Legislative Acts and Administrative Acts

	Legislative Act	Administrative Act
Examples:	General plans Zoning ordinances Development agreements	Subdivision maps Zoning variances	Specific plans	Use permits
Standard of review:	Ordinary mandamus	Administrative mandamus
Findings needed?	No	Yes
Initiative/Referendum?	Yes	No

The Arnel decision. This distinction between legislative acts and administrative acts for land use decisions is the result of the 1980 California Supreme Court case called Arnel Development Co. v. City of Costa Mesa. The Court decided that the rezoning of a parcel, no matter how small, is a legislative act and not a quasi-judicial function. Because they are legislative acts, the adoption and amendment of general plans and zoning ordinances are subject to voter initiative and referendum.

• Should the Legislature reverse the Arnel rule and statutorily convert project-specific general plan amendments into administrative acts?
• Should the Legislature convert project-specific zoning ordinance amendments into administrative acts?
• Because administrative acts carry out legislative acts, and because zoning decisions must be consistent with general plans, should the Legislature convert all zoning decisions into administrative acts?

Two exceptions to Arnel. Later courts found two exceptions to the Arnel rule. In the 1987 W.W. Dean & Associates decision, a District Court of Appeals found that a city's amendment to a development plan was an administrative act, not a legislative act, because the local officials were implementing a comprehensive plan of federal action. In 1991, the Appeals Court recognized unique circumstances in the Southwest Diversified case and found that a particular rezoning decision was an administrative act but "cast no doubt on the classification of zoning actions generally as legislative in nature."

• Should the Legislature statutorily codify the exceptions to the Arnel decision that the Court found in the W.W. Dean & Associates and Southwest Diversified cases?
  
  An analogy? When a land use development project involves both legislative acts and administrative acts, the California Chamber of Commerce wants the Legislature to apply the more stringent rules for administrative acts. This request may be analogous to the District Court of Appeal's 1977 Mountain Defense League decision. A developer simultaneously applied for a general plan amendment (a legislative act) and a private development plan (an administrative act) for a 1,000-acre resort and housing development. The San Diego County Board of Supervisors approved both requests at the same time. When challenged, the Court explained that when local officials approve two applications with one decision, the judicial review will follow the more stringent standard. The Court applied the administrative mandamus standard but then upheld the County's approvals.
   
• Should the Legislature apply the Court's reasoning from the Mountain Defense League decision and require local officials to apply the more stringent standards whenever an applicant asks for multiple approvals involving different standards?
  
  What about development agreements? Builders and local officials can enter into development agreements that bind both parties. Development agreements freeze the local development standards and they provide guidelines for future project approvals. Because they are legislative acts, development agreements can go beyond the statutory limits on developer fees and other exactions, allowing builders and local officials to negotiate long-term settlements that would not otherwise be possible. In some situations, builders are willing to accede to local officials' requests to pay higher developer fees in return for protecting the project from later changes.
   
• If the Legislature converts project-specific land use decisions into administrative acts, will builders still be able to use development agreements to negotiate with local officials for more certainty in return for higher developer fees?
   
• The sponsors have suggested exempting development agreements from their proposed statutory changes because the agreements are discretionary for builders while general plan and zoning changes are necessary. Is that a sufficient policy justification for treating similar land use decisions differently?
  
  Direct democracy. Ballot box planning has become a powerful weapon in some communities. Legislative decisions are susceptible to direct democracy - initiative and referendum - but administrative decisions are not. Voters cannot take to the ballot box to overturn a city's approval of a tentative subdivision map because subdivision approvals are administrative acts that are not subject to referendum. But residents who oppose a development can force a referendum election on the general plan amendment that the city council approved for the project. Likewise, a builder can sponsor an initiative measure that would rezone his property to a more intense use even if the county supervisors had turned down the rezoning. The sponsor's proposal to treat project-specific land use decisions as administrative acts would put those kinds of approvals beyond the voters' review.
   
• Should the Legislature place project-specific land use decisions beyond the voters' review?
  
  Follow the Oregon trail? Other states' land use laws do not apply the distinction between legislative and administrative acts in the same way that California's statutory and case law does. Oregon's Fasano decision, for example, found that the adoption and amendment of local plans and zoning ordinances are not legislative acts and, therefore, not subject to voter review. Oregon's courts recognized the same principle for distinguishing between legislative acts and administrative acts but those judges applied the rule differently because Oregon's land use laws differ from California's. The Oregon Legislature adopted land conservation and development policies and then required local officials to carry out those state policies in their local plans. Unlike California's local general plans that make land use policy, Oregon's local plans implement the state's policies. That difference made the local plans administrative acts instead of legislative acts.
   
• Should the Legislature adopt broad state policies for economic development, environmental quality, and social equity and then require cities and counties to implement those policies in their general plans?
   
• If so, which topics should the Legislature consider? Affordable housing, agricultural land, open space, commercial and industrial development, air and water quality, solid and toxic wastes, transportation and communication, public works, and safety hazards?
• If so, should local land use decisions that carry out state policies be subject to initiative and referendum?

2. Policies and ordinances.

The police power is the inherent authority of governments to regulate private behavior in the public interest, subject to constitutional limits. When cities and counties make land use and environmental decisions, they wield this police power. Local zoning is the form of the police power that's most familiar in land use settings.

The power of city councils and county boards of supervisors to approve private development projects also implies the power to attach conditions to those approvals. The most defensible conditions are those that are clearly linked to public policies to protect public health, safety, and welfare. Cities and counties have multiple legal authorities to impose conditions:

• The inherent police power to protect public health, safety, and welfare.
• General plans and specific plans that create standards for conditions.
• The Subdivision Map Act and local subdivision ordinances and standards.
• The California Environmental Quality Act (CEQA) mitigation standards.
• Building permit requirements.
• School developer fees.

Land use planners and their legal advisors recommend that local officials use their general plans to spell out the community's goals and standards. The courts are likely to uphold implementation measures that flow from well-articulated policy statements in general plans as expressions of the public interest. For example, a county with a strong farm and ranch economy might decide to preserve the most productive agricultural soils, conserve the better grazing lands, and direct new development to areas near existing public facilities and services. By collecting and analyzing data, county planners create the basis for the county board of supervisors to adopt goals and policies. These adopted goals and policies then become the legal basis for county ordinances regulating parcel sizes, setting public works standards, and charging developer fees.

Some state laws already require local officials to demonstrate that their land use decisions are consistent with their general plans. The Governor's Office of Planning and Research has identified more than 40 of these vertical consistency requirements. Agricultural preserves, parkland dedication fees, redevelopment plans, and public works projects must be consistent with local general plans.

In its 1996 Ehrlich decision, the California Supreme Court upheld the City of Culver City's public art requirement. Culver City required commercial and industrial builders to provide art work worth 1% of the project's value or pay an equal amount to the City's art fund. The Court concluded that if local officials charged a fee based on standards of general application, then the fee would be within the police power. But the Court disapproved of Culver City's requirement that the same developer pay a "recreation mitigation fee" to offset the loss of recreation facilities. The Court found that the fee was an ad hoc condition that resulted from bargaining between local officials and property owners. In this situation, the Court applied the more stringent tests created by the U.S. Supreme Court in its 1987 Nollan and 1994 Dolan opinions. The Nollan decision required an "essential nexus" between the government's interest and the condition. The Dolan decision required "rough proportionality" between the condition and the development's effects.

The Ehrlich decision created a new two-part nexus text:

• If a city bases its impact fee on an ordinance or rule of general application, then the fee is within the city's police power and not subject to the heightened constitutional scrutiny of the Nollan and Dolan nexus tests.
• If the impact fee results from "regulatory leveraging" or "land use bargains between property owners and regulatory bodies," then the exaction must pass the higher standards set by the Nollan and Dolan decisions.

The noted land use commentator Daniel J. Curtin, Jr. summarized Ehrlich this way: "Nollan/Dolan higher scrutiny test is only applicable to development fees done on an individual ad hoc basis in a discretionary permit granting process and not to general legislative formulated fees."

• Does the Planning and Zoning Law clearly require local development conditions to be consistent with the goals, policies, and standards in local general plans?
• Should the Legislature require more implementation programs to be "vertically consistent" with local general plans? If so, which implementation programs?
• Should the Legislature codify the part of the Ehrlich decision that applies the Nollan and Dolan tests to ad hoc land use requirements?

3. Nexus rules.

In its 1949 Ayres decision, the California Supreme Court established an early nexus test, allowing local officials to require a builder to install sidewalks and other public works as a condition of approving a proposed subdivision. The California Supreme Court's 1971 opinion in the Associated Home Builders, Inc. case upheld the Quimby Act that allows local officials to require builders to dedicate parkland or pay in lieu fees as a condition of approving subdivisions.

The 1987 Mitigation Fee Act ("AB 1600") set statutory limits on developer fees imposed by cities and counties. In particular, local officials must show that there is a "reasonable relationship" between the fee's use and the type of development. Further, there must be a "reasonable relationship" between the need for the public facility and the type of development.

The U.S. Supreme Court's 1987 Nollan decision overturned a California Coastal Commission decision because the exaction lacked the proper nexus between the condition and the development's burden. The U.S. Supreme Court's 1994 Dolan opinion overturned an Oregon city's decision because the condition lacked "rough proportionality," in both nature and scope, to the development project.

On October 26, 1998, state officials revised the CEQA Guidelines, the administrative regulations that guide public officials in interpreting statutory requirements. The revisions added a new §15126.4 that says "mitigation measures must be consistent with all applicable constitutional requirements." The new language continues by stating the Nollan decision's requirement for "an essential nexus between the mitigation measure and a legitimate governmental interest" and the Dolan decision's requirement that the "mitigation measure must be 'roughly proportional' to the impacts of the project." If the mitigation measure is an ad hoc exaction, the new language requires that it be "roughly proportional" to the project's impacts, citing the Ehrlich decision.

• Is there any real difference between the statutory "reasonable relationship" standard and the judicial "rough proportionality" standard?
• Should the Legislature replace the current statutory nexus test that requires a "reasonable relationship" with the U.S. Supreme Court's nexus test that requires "rough proportionality"?

4. Mitigation standards.

State laws on land use, environmental quality, and natural resources do not follow consistent standards regarding the ability or requirement for public officials to mitigate the negative effects of their decision.

• The Planning and Zoning Law allows, but does not require, cities and counties to impose conditions on development projects to mitigate the projects' negative effects.
   
• The California Environmental Quality Act (CEQA) requires public officials to avoid a proposed project's significant adverse environmental effects or mitigate them to the level of insignificance. However, CEQA also allows officials to approve a project that has unmitigated adverse effects if they find that there are overriding social and economic considerations.
   
• The California Endangered Species Act (CESA) defines the authority of the State Department of Fish and game to allow the incidental taking of endangered, threatened, and candidate species. The Department's conditions must minimize and fully mitigate the impacts, while meeting three criteria. The conditions must: (1) be roughly proportional, (2) maintain the applicant's objectives to the greatest extent possible, and (3) be capable of successful implementation.

Equifinality. Political scientists use the term "equifinality" when they refer to the old adage that there is "more than one way to skin a cat." The California Chamber of Commerce wants the Legislature to change state laws so that an applicant can pick an alternative mitigation measure, provided that it achieves the same level of mitigation as the measure that public officials planned to impose. This approach would involve three steps.

First, public officials would have to identify the proposed project's adverse effects. CESA already requires this step. CEQA requires public officials to identify a proposed project's adverse environmental effects but not its negative social or economic effects. The Planning and Zoning Law does not specifically require local officials to name a project's negative effects, although the process and practice of local planning often raises those concerns.
Second, public officials would have to identify a mitigation measure for each adverse effect. Both CEQA and CESA result in documents that can match a project's negative effects with specific mitigation measures. The Planning and Zoning Law does not explicitly make that link, although planners and attorneys in more sophisticated communities make that analysis a matter of public record.

Once public officials pick their mitigation measures, the third step would permit the project applicant to substitute another mitigation measure, provided that it achieved the same level of mitigation, if the measure was more consistent with the applicant's intended use and/or less burdensome to the applicant.

• Is the proposal's preference for mitigation measures that are the least burdensome to the applicant a fundamental shift away from CEQA's explicit policy that favors environmental values over the applicant's desires?
   
• CEQA requires public officials to identify a proposed project's environmental effects. The Planning and Zoning Law lacks any statutory requirement to identify a proposed development's resources, social, and economic effects. Should the Legislature amend the Planning and Zoning Law to require local officials to identify specific resource, social, and economic effects of proposed development projects?
   
• CESA requires mitigation measures to maintain the applicant's objectives but only when state officials have fully mitigated a proposed project's impacts. The Planning and Zoning Law lacks any statutory requirement to fully mitigate a proposed development's impacts. Should the Legislature amend the Planning and Zoning Law to require local officials to fully mitigate the resource, social, and economic effects of proposed development projects?
   
• Should the Legislature require public officials to make new, documented findings before they substitute the applicant's preferred mitigation measures for their own?
   
• Some legislators have tried to reduce the amount of litigation surrounding CESA, CEQA, and land use decisions. Will the adoption of a new "least burdensome" standard invite lawsuits that challenge the applicant's preferred mitigation measures?

5. Judicial review.

The judicial standard of review for legislative acts is ordinary mandamus and the standard for reviewing administrative acts is administrative mandamus. When hearing challenges to administrative acts, the courts look for written findings that show how officials linked policies to the specific situation.

When a city or county approves an applicant's general plan amendment, local officials may decide to impose conditions to mitigate the amendment's negative effects on environmental quality, natural resources, social problems (e.g., the supply of affordable housing), or fiscal conditions. Under the California Chamber of Commerce's proposal (#4, above) the applicant may propose other measures that achieve the same level of mitigation. The Chamber also proposes that in a lawsuit challenging the substitution of an applicant's mitigation measures for the public agency's own, the courts should use a standard of review based on substantial evidence in the record.

• Is it appropriate to apply the "substantial evidence" standard to local land use decisions that are legislative acts?
• Would the court be required to apply one standard when reviewing the main local land use decision and another, more stringent standard when reviewing related the mitigation measures?

6. Effect on CEQA.

The California Environmental Quality Act is a procedural statute that applies whenever state or local officials review and approve projects that might have environmental effects. CEQA applies to all discretionary decisions, regardless if they are legislative acts or administrative acts. The California Chamber of Commerce wants the Legislature to amend CEQA to conform to its other proposals but only to the extent that an approval is a project-specific decision.

• Should the Legislature amend CEQA to allow an applicant to substitute equivalent mitigation measures only for project-specific decisions and not for policy-setting decisions?
• What is the policy justification for applying one mitigation standard to some types of environmental reviews and not to other types?
• Would the creation of new statutory categories invite new CEQA lawsuits?
• CEQA applies to state agencies, boards, and commissions not just to cities, counties, and special districts. How will state officials implement the proposed CEQA changes for project-specific decisions?

 

Other Legislation

 

AB 2621 (Cardoza, 1998) was not the only bill in recent years to challenge public officials' police powers over land use and development projects. Other legislators have authored bills which would have altered some of the fundamental features of court decisions and land use laws.

• SB 466 (Leonard, 1995) would have allowed a property owner to sue a local agency for inverse condemnation for actions that reduce the property's value by 25% or more. The burden of proof would be on the property owner, based on three appraisals. Status: Died in the Senate Judiciary Committee.
   
• SB 635 (Haynes, 1995) would have enacted the "Property and Homeowner Protection Act" to require the state to sell land of equal value when it buys private land, require state and local agencies to hear administrative appeals on development projects within 60 days, expand the Permit Streamlining Act to include legislative approvals, declare eight specified property rights, require the Attorney General to issue guidelines on takings, require public officials to use specific principles and criteria, limit public land use regulations, declare takings when public officials deny permitted land uses, require reassessment of property if regulations reduce market values. Status: Died in the Senate Judiciary Committee.
   
• SB 1538 (Johnson, 1996) would have prohibited a public agency from changing or limiting a business's hours of operation unless the agency paid just compensation. Status: Died in the Senate Housing and Land Use Committee.
   
• SB 689 (Johnson, 1997) would have prohibited cities and counties from limiting a restaurant's operating hours unless they pay compensation or allow an amortization period. Status: Failed in the Senate Housing and Land Use Committee.
   
• SB 1779 (Haynes, 1998) would have required local officials to prepare a private property rights takings analysis before adopting land use regulations, would have required a "direct" nexus for exactions, and would have required mitigation measures to maintain the applicant's objections to the greatest extent possible. Status: Failed in the Senate Judiciary Committee.
   
• SB 2033 (Costa, 1998) would have prohibited local officials from disapproving a "drive-thru" facility or imposing restrictive conditions. Similar to AB 1498 (Campbell, 1998). Status: Died in the Senate Local Government Committee.
   
• AB 1319 (Olberg, 1995) would have required state officials to review their proposed regulations for compliance with case law protecting private property rights, following three principles. Status: Died in the Assembly Judiciary Committee.
   
• AB 1320 (Olberg, 1995) would have required state officials to certify that they completed a "private property taking impact analysis" before regulating private property and would have created a Real Property Ombudsman in the Resources Agency. Status: Died in the Assembly Judiciary Committee.
   
• AB 3081 (Olberg, 1996) would have enacted a "California Private Property Rights Act," but only amended the Mitigation Fee Act. Status: Chapter 549 of the Statutes of 1996.
   
• AB 1498 (Campbell, 1998) would have prohibited local officials from disapproving a "drive-thru" facility or imposing restrictive conditions. Similar to SB 2033 (Costa, 1998). Status: Failed in the Assembly Appropriations Committee.

 

Anecdotes, Examples, and Evidence

 

Legislators often author bills in response to specific incidents, court cases, or emerging trends. But, as one legislative leader recently quipped, "the plural of anecdote is not evidence." Making broad public policy based on a couple of half-remembered anecdotes is never a substitute for careful research into the causes of public policy problems. Policy committees usually prefer to know what's wrong before they act on bills that would alter long-standing statutory policies and court decisions.

The California Chamber of Commerce has been hesitant to provide examples of how state and local officials may have ignored the statutory formulas in the Mitigation Fee Act, or how they have ignored the standards set by the Nollan, Dolan, and Ehrlich decisions. During the Committee's July hearing on AB 2621 witnesses did not provide legislators with examples of cities and counties that are violating state law. Understandably, some applicants may not want to criticize public officials for fear of damaging their current negotiations over pending projects. Other businesses may avoid offering criticism over past projects because they expect to file more applications with the same agencies in the future.

The courts continue to apply statutory requirements and the principles of case law to strike down developer fees and other exactions that go too far. In the 1989 Rohn case, for example, the District Court of Appeals applied the Nollan principles and invalidated Visalia's demand for street widening because the City's condition lacked a sufficient nexus. The Rohn opinion means that exactions must serve the applicant's project directly or indirectly, but local officials cannot impose conditions to solve the community's existing problems.

• What specific problems are the six proposals trying to solve?
• How do current statutory standards fail to protect applicants' interests?
• Do public officials go too far when imposing developer fees and exactions?

Sources and Credits

 

Peter Detwiler, Committee consultant, wrote this background paper with the assistance of Jane Leonard Brown, Committee Assistant. They appreciate the generous help that they received from:
Mary Akens, California Legal Advocates for Wildlife
K.C. Bishop III, Chevron Corporation
Dan Carrigg, League of California Cities
Daniel J. Curtin, Jr., McCutchen Doyle Brown & Enersen, LLP, Walnut Creek
David R. Farabee, Pillsbury Madison & Sutro, LLP, San Francisco
Mercedes Flores, Assembly Agriculture Committee
Sande George, George R. Steffes, Inc.
Pam Gibbs, Senate Local Government Committee
M. Thomas Jacobson, Department of Environmental Studies and Planning, Sonoma State
Valerie Nera, California Chamber of Commerce
Terry Rivasplata, Governor's Office of Planning and Research
Toni Symonds, Office of Assemblyman Dennis Cardoza

These printed sources were useful in the preparation of this paper:
Daniel J. Curtin, Jr., Curtin's California Land Use and Planning Law (18th Edition), Point Arena: Solano Press Books, 1998.
Daniel J. Curtin, Jr., California Planning Law Update (City of Pacific Grove Annual Land Use Seminar), Walnut Creek: McCutchen Doyle Brown & Enersen LLP, October 8, 1998.
Governor's Office of Planning and Research, General Plan Guidelines, 1990, Sacramento: Office of Planning and Research, November 1990.
John D. Landis, et al., Fixing CEQA: Options and Opportunities for Reforming the California Environmental Quality Act (Volume 1), Berkeley: California Policy Seminar, 1995.
James Longtin, Longtin's California Land Use (2nd Edition) and 1998 Update, Berkeley: Local Government Publications, 1987 and 1998.
Robert E. Merritt and Ann R. Danforth, eds., Understanding Development Regulations, Point Arena: Solano Press Books, 1994.