Lay of the Land
2015 is shaping up as a year of significant developments in land use law thanks to the Governor, the Legislature, and the courts. Here’s an update on anticipated developments related to Sea Level Rise, Affordable Housing, Traffic Impact Analysis and the Drought, any or all of which could constrain land development:
. . . SEA LEVEL RISE AND THE COASTAL COMMISSION: Prospective purchasers, developers, and owners of coastal land should pay close attention to the Coastal Commission’s development of policies to address rising sea level and its implication not just for coastal resources, but also for existing and proposed development. Although final guidance has not yet been issued, the Commission’s Draft Sea-Level Rise Policy Guidance concludes that sea level rise threatens “seven wastewater treatment plants, commercial fishery facilities, marine terminals, Coastal Highway One, fourteen power plants, residential homes, and other important develop
ment and infrastructure.” Add in impacts to tourism, commercial fisheries, coastal agriculture, the ports, and sensitive coastal resources and it is easy to anticipate that the projected risks from sea level rise will create tough decisions for the Commission as it acts on Local Coastal Programs, LCP amendments, and Coastal Development Permits. Hazard avoidance and mitigation are likely to result in proposals for significant constraints on development. Every site and project will be different, but it will be important to evaluate the potential significance of sea level rise over the life of the project in the context of any investment or development within the Coastal Zone. The picture above is from a presentation by Charles Lester, Executive Director of the Coastal Commission, to the Senate Budget Subcommittee 2 on March 20, 2014. It shows a pre-Coastal Act home and more current setback requirements along a blufftop in Pismo Beach which has been impacted by bluff erosion.
. . . AFFORDABLE HOUSING FEES: We told you earlier this year that the California Supreme Court will be weighing in on the validity
of an in lieu affordable housing fee in San Jose. Oral arguments in California Building Industry Association v. City of San Jose (click here to read the appellate court decision which is under review) were heard on April 8. CCN’s Mike Zischke was in attendance and observed an engaged and inquisitive Court. When this decision comes down, its significance likely will go beyond the affordable housing issue. With two new Justices sworn in at the beginning of this year, this decision could foretell where the Court will lean on land use issues, particularly those involving exactions and impact fees.
. . . THE DROUGHT: Governor Brown’s Executive Order calling for a 25% reduction in the State’s water usage will impact not only daily life for Californians (there goes that ten-minute shower), but potentially development proposals. At a time when some areas in the state are experiencing housing shortages, there undoubtedly will be pressure from some interest groups to cut back on the development of new housing. It’s too early yet to understand what the full effect of Executive Order B-29-15 will be, as local water agencies and local governments will be developing their own policies to comply with the Governor’s directive.
. . . HAVE WE SEEN THE END OF “LOS” AS A METRIC TO MEASURE TRAFFIC? The development of new CEQA Guidelines to revolutionize traffic impact analysis under CEQA is still a work in process. The traffic portions of SB 743, adopted in 2013, were principally intended to change the pattern of land development in California, with reduced GHG emissions, more reliance on public transportation, and enhanced public health being the objectives.
Based upon Proposed Draft Guidelines released by OPR in August, what used to be mitigation (road widening, for example) will now be an impact, and not just because of its short-term construction effects. Road improvements previously designed to mitigate traffic impacts will instead become significant impacts because 
they accommodate more vehicular traffic and, therefore, create additional GHG emissions. Predictably, highly urbanized cities and many urban infill developers support the approach of the proposed Guidelines. Cities without significant transit capabilities and those with communities that are highly sensitive to traffic delay are less welcoming. Whatever happens within CEQA, LOS likely will remain in the general plans of most cities and counties as a criteria that new projects must meet. But what will happen when the general plan LOS mandate collides with the new CEQA Guidelines which leave LOS out of the traffic impact analysis?
We suspect this will play out in different ways in different communities. Unlike significant impacts under CEQA, an agency cannot “override” a proposed project’s inconsistency with the general plan. Thus, it will become easier for agencies to reject projects that result in congestion delay, especially if their community is not particularly welcome to new development in the first place. Cities seeing new development as enhancing their community might require road improvements to meet their general plan LOS standards and then override the required finding of the significant impact resulting from those road improvements. General plan-dictated road improvements will need to be addressed early in the process as part of the CEQA project description to avoid recirculation issues. And funding for traffic improvements could become threatened as traffic models and metrics change to remove congestion management improvements from consideration. We will keep you informed as the new Guidelines and their intended and unintended consequences continue to evolve.