PublicCEO: BB&K Municipal Law Team Discusses New Public Agency Laws - Part 2

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Land Use, Telecommunications, Environmental and More

As noted in Part I of this two-part series, California lawmakers passed a number of new laws last year that greatly impact how public agencies serve their constituents.

Part II of this series explores the moves legislators made to address the State’s affordable housing crisis, including a measure exempting certain affordable housing properties from locally imposed Mello-Roos taxes (Assembly Bill 1743) and another establishing statewide rent caps and eviction rules (AB 1482).

Here is a recap of these laws, along with those addressing natural disaster evacuation routes, the California Environmental Quality Act, coastal protection and wildfire prevention. Unless otherwise noted, these new laws went into effect on Jan. 1.

State Relaxes Regulations, Streamlines Development Process
In an effort to spur housing development to meet the State’s rising housing demands, Gov. Gavin Newsom signed 15 bills last year that, among other things, streamline local development procedures and pave the way for Californians to build more accessory dwelling units.

  • AB 101: Taking effect in October 2019 after the 140-page bill was signed, AB 101 gave the California Department of Housing and Community Development more regulatory and financial tools to hold cities accountable for compliance with the state’s housing-element law.
  • AB 1486: California public agencies now have an expanded role under the Surplus Land Act to satisfy new housing-element requirements. The law revised the definition of a “local agency” to not only include every city, county and district (including school districts) but also sewer, water, utility and local and regional park districts, among others, empowered to acquire and hold real property. With the law impacting an agency’s existing practices relating to the disposal of surplus land, agencies should carefully evaluate their policies and procedures to avoid a penalty for noncompliance. AB 1486 took effect Jan. 1, but its penalty provisions go into effect in 2021.
  • AB 1482: The Tenant Protection Act of 2019, or AB 1482, takes some pressure off local agencies to address rising rents by setting statewide rent caps and eviction rules. Now, in any 12-month period, a residential landlord can only increase a tenant’s rent by 5 percent plus the percentage change in the cost of living or 10 percent, whichever is less. The law applies to all rent increases after March 15, 2019. Additionally, under AB 1482, a landlord cannot remove a tenant without just cause depending on the length of occupancy and housing type.
  • SB 330: The new law makes many changes including limiting the ordinances and policies cities and counties can apply to housing developments. Among its changes, SB 330 established a new preliminary application process that requires all public agencies to compile a checklist specifying what is required to complete a development application. The law also includes streamlining provisions that limit the number of hearings that a compliant project can be subject to.
  • AB 881, SB 13, AB 68, AB 671, AB 139, AB 670 and AB 587: To accelerate the development of accessory dwelling units, or ADUs, a number of laws were passed that further limit local regulation of ADUs. Under the laws, ADUs will be allowed in more locations and there will be fewer opportunities for agencies to regulate the size of ADUs or implement parking requirements (AB 881, SB 13 and AB 68) ADU’s are exempt from owner occupancy requirements until Jan. 1, 2025. Cities and counties will need to include ADUs, and report what they are doing to promote ADUs in their housing elements (AB 671 and AB 139). Additionally, homeowners’ associations are also restricted from limiting ADUs (AB 670) and the separate sale of ADUs is allowed in some situations (AB 587).
  • AB 1763, AB 1255, AB 1483 and SB 6: The 2019 housing package included a number of bills modifying California’s housing density bonus, information and reporting rules. The density bonus law was amended to authorize development incentives that encourage 100 percent affordable housing projects (AB 1763). Also, among the new laws, cities are required to establish a central inventory of all surplus government properties (AB 1255). This was previously only required of counties. SB 6 requires the Department of General Services to list inventory sites suitable for development in a database on its website and requires the sites to be included in each local agency’s housing element. AB 1483 makes changes to the Government Code and Health and Safety Code to increase transparency requirements for development project applicants.
  • AB 1743: Certain properties used for affordable housing are now exempt from locally imposed Mello-Roos special taxes. The “welfare exemption” already provided that real property used for charitable purposes – including affordable housing – were not subject to ad valorem property taxes. AB 1743 in effect, extends this exemption to include Mello-Roos taxes.

Safety Elements Must Include Evacuation Routes for Disasters
Under AB 747, each city and county is required to revise the safety element of its general plan to include evacuation routes for fire and geological hazards. The law is in response to the devastating impacts of the 2018 Camp Fire that killed 85 people, due, in part, to an insufficient evacuation of the area.

In order to qualify for federal disaster funding, cities and counties must adopt a local hazard mitigation plan every 5 years. AB 747 requires that changes to the safety element must occur in the next LHMP revision or after Jan. 1, 2022, or if a jurisdiction has not adopted an LHMP, by Jan. 1, 2022.

Data Restrictions Lifted on Mobile ISP’s for First Responders, Community Outage Isolations
While battling the 2018 Mendocino Complex Fire, fire officials experienced a significant data transmission slowdown of their mobile emergency communications. The data plan was “unlimited” but included a data usage allotment that slowed data speeds once the allotment was exceeded.

Addressing the public safety concerns of such practices, AB 1699 requires mobile Internet service providers to lift data speed restrictions on mobile accounts of first response agencies, upon request, in an emergency, including fires, floods, earthquakes, cyberterrorism and other disasters.

With the passage of SB 670, phone service telecommunications providers that provide access to 911 services must notify the state Office of Emergency Services when an community isolation outage limits a customer’s ability to make 911 calls within 60 minutes of discovering the outage. The provider must also include an estimated time to repair and restore the service.

Water: Mitigating Climate Change, Addressing Stormwater Discharge Compliance

  • AB 65: California voters approved Proposition 68 in 2018 allocating more than $20 million to the California State Coastal Conservancy’s Climate Ready Program. The program is aimed at helping coastal communities adapt to climate change by improving their coastal resources. AB 65 details the projects the SCC must prioritize, including projects that utilize green infrastructure and provide multiple public benefits along the coast. The law also authorizes the SCC to provide technical assistance to coastal communities that use natural infrastructure.
  • SB 205: California cities that issue business licenses will now need to verify if an applicant that conducts a business operation that is a regulated industry is enrolled with the National Pollutant Discharge Elimination System permit program. This applies to all applications for initial business licenses and license renewals submitted on and after Jan. 1, 2020. (The BB&K Legal Alert Cities Issuing Business Licenses Will Need to Verify NPDES Permits First discusses the actions cities will need to take in further detail.)

Fire: Easing the Harmful Effects of Smoke, Preventing Wildland Fires
A growing concern of the Air Resources Board, which oversees the State’s air quality and protects the public from the harmful effects of air pollution, is the health impacts of wildfire smoke exposure.

AB 836 created the Wildfire Smoke Clean Air Centers for the Vulnerable Populations Incentive Pilot Program that will mitigate the harmful effects of smoke by providing grants to retrofit ventilation systems to enhance indoor air quality in community buildings. The effort aims to establish a network of safe wildfire centers.

Under the law, the Board will identify vulnerable populations and strategic locations. Funding for the program is contingent upon appropriation by the Legislature. The new law sunsets on Jan. 1, 2025.

To prevent wildland fires, state and federal laws require electric utility companies to trim or remove trees. The Wildfire Safety Division of the Public Utilities Commission oversees vegetation management in the State and approves/denies wildfire mitigation plans annually submitted by electrical companies. Under SB 247, the vegetation management requirements of an electrical company’s mitigation plan have changed.

Under the new law, the electrical provider must notify the Division after completing a substantial portion of its vegetation management requirements. The Division is required to audit the work and give the company a reasonable time to correct any deficiencies. The report is available to the public.

CEQA: Land Transfers, Community Plans & Permanent Supportive Housing

  • AB 782: This measure codifies a California Environmental Quality Act exemption for the acquisition, sale or other transfer of interest in land by a public agency for the preservation of natural conditions existing at the time of transfer, including plant and animal habitats, among others. The granting or acceptance of funding by a public agency for those purposes is also exempt.
  • AB 1515: The law prohibits a court from attacking, reviewing, setting aside, voiding or annulling the acts of a local agency, including a charter city, in the approval of a development project that meets certain requirements on the basis that the agency did not comply with CEQA when adopting an update to its community plan. While the provisions remain in effect until Jan. 1, 2025, their repeal will not affect any right or immunity granted to a development project that meets the specified requirements before that date.
  • SB 744: In 2016, California voters passed the “No Place Like Home” Program allocating $2 billion in bonds to counties to develop supportive housing for the homeless and seriously mental ill. This was followed by AB 2162 in 2018 that streamlined the process for supportive housing developments. The passage of SB 744 takes this process further by precluding CEQA review in some instances. The law specifies that a public agency’s decision to seek funding from — or the Department of Housing and Community Development’s award for — the NPLH is not a project requiring CEQA review. If a NPLH project isn’t eligible for approval as a use by right, the lead agency must prepare and certify the record of a proceeding for the environmental review.

Part One of this two-part series focused on the recent legislation that brought changes to election, campaign finance and other local government laws.

This article first appeared in on Feb. 12, 2020. Republished with permission.

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DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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