Articles Tagged with Coastal Commission

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No matter your politics or perspective on development in the state, one thing is beyond debate – California is facing a serious housing shortage crisis. A recent article in the Los Angeles Times warns that this shortage will have significant adverse effects on the state’s economy. Making matters worse is a dearth of affordable housing. Efforts by policymakers to deal with these shortfalls have resulted in mixed success. Most recently, Governor Brown’s proposal to streamline the approval of “as of right” housing projects that include some affordable units stalled last August.

The California Legislature, however, has come up with new tools to either incentivize or require a developer to intensify development and create affordable housing opportunities. An issue that sometimes comes up is how these tools of local government square with existing state statutes or regulations governing conservation or protection of sensitive lands, such as those regulated by the California Coastal Commission.

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No Density Bonus for this Coastal Project

In Kalnel Gardens, LLC v. City of Los Angeles, the court of appeal tackled this issue in the context of a relatively small project in the Venice area of Los Angeles. The developer applied to the City to tear down a two-story, three-unit apartment building and replace it with five duplexes and five single-family homes for a total of 15 residential units. The project was granted additional density and height limits beyond what was allowed on the site because two of the units would have been designated as affordable units.

The City’s Zoning Administrator granted these development incentives based on the following statutes:

  • Housing Accountability Act. This act is sometimes referred to as the state’s “anti-NIMBY law.” The Housing Accountability Act limits the ability of local governments to reject or make infeasible housing development projects based on their density without a thorough analysis of the “economic, social, and environmental effects of the action,” including the adoption of express findings required by the statute.
  • Density Bonus Act. This act addresses the shortage of affordable housing in California by requiring local governments to award a developer certain development concessions and a density bonus that allows an increase in density above what the zoning ordinance allows if the developer agrees to set aside a certain percentage of the units in a housing development for low or very low income residents.
  • Mello Act. This act establishes minimum requirements for affordable housing within the coastal zone by requiring, first, the construction of replacement low income housing when existing affordable housing is demolished and, second, new affordable housing units as part of new developments, either at the site of the new development or somewhere else.

A group of neighbors administratively appealed the project, alleging that it violated the Coastal Act because the project’s height, density, setbacks, and other visual and physical characteristics were inconsistent with the existing neighborhood. The West Los Angeles Area Planning Commission found that the project did not conform to the Coastal Act on that basis, and on appeal to the City Council by the developer, the City Council agreed with the Commission.

The developer sued the City, arguing that the City had violated the housing density statutes identified above by reducing the size of the Project and denying the incentives sought under the Density Bonus Act. The question for the court, then, was whether the Coastal Act takes precedence over the “density bonus” allowances sought by the developer.

The court’s answer? The Coastal Act does supersede a local government’s obligations under these housing density laws. The court reached this conclusion by assuming that it must apply the law in a manner that is “most protective of coastal resources,” essentially putting the housing density statutes in the backseat. In sum, in a clash between the Coastal Act and the state’s housing density statutes, the Coastal Act will win.

Although the court here looked to specific language in the Coastal Act and the housing density laws to reach this conclusion, this decision suggests that other statutes similarly protective of sensitive lands may be viewed as superseding other state law mandates that local government incentivize affordable housing projects in order to meet the state’s housing crunch. Bottom line: if you face that balancing act as a developer, beware.

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. . . The Corps’ Definition of Waters of the United States

From Clark Morrison:

Clark photoJustice Scalia’s passing may have an immediate impact on the Army Corps of Engineers’ expanded definition of “waters of the United States” under the Clean Water Act. Last October, the United States Court of Appeals for the Sixth Circuit issued a nationwide stay of the Corps’ new broader definition until the matter is fully litigated, citing skepticism over whether the Corps’ definition is scientifically supportable. Recently, the 6th Circuit decided that it will hear the entire case rather than returning it to the district courts for trial. So, we may see a ruling on this regulation much more quickly than we previously anticipated. Should this matter end up before the Supreme Court, it should be remembered that Justice Scalia was a staunch proponent of the idea that the Corps should not exercise jurisdiction over waters that are not truly navigable (e.g., “reasonably permanent flow”).

 

. . . Dueling Ballot Measures for Los Angeles

From Alex DeGood:

Two competing initiatives are currently gathering signatures in the City of Los Angeles for placement on the November 8 general election ballot. One, called “The Build Better LA Initiative,” is sponsored by a coalition of labor unions and housing advocates. The second, called the “Neighborhood Integrity Initiative,” is backed by the Coalition to Preserve LA. Both initiatives would have far-reaching implications for future development in Los Angeles.

What will proposed ballot measures do to LA's skyline?

What will proposed ballot measures do to LA’s skyline?

The Build Better LA Initiative would affect projects requiring general plan amendments or zone changes that permit additional floor area, density, or height. It contains inclusionary affordable housing requirements, mandating affordability for up to 25% of the units in rental projects and up to 40% of the units in for sale housing projects. Offsite affordable housing and the payment of a substantial affordable housing in lieu fee would be options in some instances. The initiative also would impose substantial union labor and local hire requirements on affected projects.

The Neighborhood Integrity Initiative appears to particularly target large development projects. It would impose a two-year moratorium on general plan amendments or zone changes that increase density or intensity. It also would require updating the general plan with various lower-growth principles and limit the City’s ability to approve parking reductions for projects.

Both initiatives take direct aim at the planning and development process in Los Angeles, and either one could dramatically alter development plans across the City.

 

. . . Inclusionary Rental Housing

From Steve Ryan and Tim Paone:

AB 2502 was introduced in the California Assembly on February 19 principally to offset the 2009 court decision in Palmer v. City of Los Angeles and allow local jurisdictions to impose, as a condition of project approval, rental units affordable to, and occupied by, tenants whose household incomes fall within the lower, very low, or extremely low categories. If adopted, AB 2502 also will apply to for sale residential developments. In 2013, Governor Brown vetoed similar legislation, noting that inclusionary rental requirements can “exacerbate” the challenges faced by low and middle income communities seeking to attract new development. That, however, occurred before the California Supreme Court’s ruling in California Building Industry Association v. City of San Jose upholding a City of San Jose ordinance requiring developers to include affordable units in their residential projects. The San Jose ordinance specifically stated that it would not apply to rental projects until either the Palmer decision was overturned by the courts or the Legislature authorized inclusionary rental housing. It will be worth watching to see if the Governor’s views on the potentially negative impacts of inclusionary housing requirements have changed since 2013.

 

. . . The Hiring of a New Executive Director for the Coastal Commission

From Tim Paone:

With the termination of Dr. Charles Lester as Executive Director of the California Coastal Commission, all eyes are on the CommBlack Hat-White Hatission’s selection of his replacement. Lost in the unfortunate characterization of Dr. Lester’s dismissal as a battle between developers and environmentalists was the Commission majority’s stated desire for a more efficient process. Shortly before the Commission hearing on Dr. Lester’s performance evaluation, former Commissioner Jana Zimmer had urged in an Op-Ed that appeared in the Santa Barbara Independent that a “black hat versus white hat” approach to the decision before the Commission was not productive. Given the prominence of the Executive Director position, there should be no shortage of candidates who are effective managers with strong integrity, have credibility with the environmental community, and don’t own either a white hat or a black hat.