HomeMy WebLinkAbout03 - North Newport Center Planned Community (PA2007 -151) - 500 -600 Blk Newport Center Drive, 42000 Blk San Joaquin Plaza - CorrespondenceQ-7 - r1z
LEIBOLD MCCLENDON & MANN
A PROFESSIONAL CORPORATION
23422 MILL CREEK DRIvE, SUITE 105
LAGUNA HILLS, CALIFORNIA 92653
(949) 457 -6300 JOHN G. McCLENDON
FAX: (949) 457 -6305 john ®CEQA.mM
December 11, 2007
HAND DELIVERED
Honorable Mayor and Members of the City Council
CITY OF NEWPORT BEACH - CITY HALL
3300 Newport Blvd.
Newport Beach, CA 92663
Re: December 11. 2007 City Council Public Hearing: North Newport Center Planned
Community( PA2007- 151) [The Irvine Company's: CodeAmendmentNo. CA2007-
007to change the zoning classification of Block 500 -600 of Newport Center Drive;
Planned Community Development Plan Amendment No. PD2007 -003 to adopt a
new Planned Community Development Plan for Fashion Island; Development
Agreement No. DA2007 -002 to vest development rights and establish a public
benefit contribution to the City; Traffic Study No. 2007 -001 to evaluate potential
traffic impacts and circulation system improvements; Affordable Housing
Implementation Plan specifying how development will meet the City's affordable
housing goal; and Transfer of Development Rights; and Addendum to Final
Environmental Impact Report (SCH No 2006011119) for the City of Newport
Beach General Plan 2006 Update]
Dear Mayor and Members of the City Council:
Leibold McClendon & Mann respectfully submits this letter on behalf of Greenlight and
others in the community. We would urge that you neither approve the above - referenced
project (the "Project ") nor adopt the Addendum to the Final Environmental Impact Report
for the City of Newport Beach General Plan 2006 Update unless and until: (1) the City is able
to comply with Zoning Law (Government Code sections 65000 et seq.), (2) the City prepares
and certifies a legally adequate subsequent EIR for the Project that adequately analyzes the
environmental impacts of the Project and properly fulfills its role as a public disclosure
document in accordance with the requirements of the California Environmental Quality Act
(California Public Resources Code sections 21000, etseq: "CEQA ") andthe State Guidelines
for Implementation of CEQA (Title 14, California Code of Regulations, sections 15000, et
seq.: "CEQA Guidelines "), and (3) puts the Project before.the voters of Newport Beach in
accordance with the Greenlight initiative of the City's Charter.
I request that this letter and its attachments, as well as the numerous documents on the CD
submitted herewith, be included in the record of the City's proceedings for the Project.
M
Honorable Mayor and Members of the City of Newport Beach City Council
Re: North Newport Center Planned Community Development
December 11, 2007
Page 2
I• APPROVAL OF THE PROJECT WOULD VIOLATE
THE STATE PLANNING AND ZONING LAW
A. The City's Housing Element Has a Long History of
Being Out of Compliance with Housing Element Law
The Project's primary failing is that it is based on the City's adopted Housing Element which
the California Department ofHousing and Community Development ("HCD'), as of October
16, 2007, has declared to be OUT of compliance with State Law. (See aT b A.) On
numerous occasions HCD has informed the City of the deficiencies of its Housing Element
and has given the City many opportunities to cure those deficiencies. However, the City's
failure to accommodate its share of the regional housing need, especially for lower- income
households, in its Housing Element persists.
HCD found Newport Beach's 2003 adopted Housing Element, along with a subsequent
revision in April 2005, in conditional compliance with State Law. (See Tab C.) "The
Department's finding of compliance was contingent on the City's commitment to rezone the
Avocado/MacArthur site and continuing to encourage and facilitate development on the
Banning Ranch site." (Id.)
On June 20, 2005, Cathy Creswell, Deputy Director of HCD, wrote a letter to City Manager
Bludau commenting upon the City's 2005 annual report and reminded City Manager Bludau
that approval of the City's third cycle Housing Element was conditional and that "if the
City's October 2005 annual report ... reveals the Avocado/MacArthur site is not available
for multifamily development and an alternative site has not been identified, the element will
no longer comply with the `adequate sites statutory requirement.... "' (See Tab B.)
In 2006, Newport Beach revised its Housing Element in an effort to comply with State Law.
Unfortunately, HCD again determined that the City's revisions to the Housing Element were
insufficient. After reviewing the proposal, HCD concluded that the "revised element no
longer proposes to rezone the MacArthur site as a means to address the adequate sites
statutory requirement." (See aT b C.) In addition, the revised element prioritized "the
retention of Banning Ranch as open space." (Id.) According to HCD, this was an "especially
critical point as the previously adopted element relied on Banning Ranch to accommodate
406 multifamily units without the need for a zone change or general plan amendment." (Id.)
According to her November 2, 2006 letter, Cathy Creswell concluded that the City's revised
Housing Element "does not contain the necessary information and analysis to determine
which specific sites are suitable and available to accommodate the City's remaining housing
Honorable Mayor and Members of the City of Newport Beach City Council
Re: North Newport Center Planned Community Development
December 11, 2007
Page 3
need within the current planning period." (Id.) However, HCD did provide the City with
a list of information that, if included in a revised Housing Element, could bring the element
into compliance with State Law. (Id.)
As a result of HCD's last round of comments on the City's Housing Element, the City again
revised its Housing Element in 2007. On September 10, 2007, Cathy Creswell again
informed the City that the revised Housing Element was inadequate. (See Tab D.) This time
Deputy Director Creswell told the City that, in order for its Housing Element to comply with
State Law it "must demonstrate the strategies [proffered by the City] are realistic and viable
such that they can accommodate Newport Beach's remaining share of the regional housing
need, particularly for lower - income households." (Id.)
According to the Southern California Association of Government's ( "SCAG ") July 12, 2007,
Final Regional Housing Need Allocation Plan for the Fourth Planning Period of January 1,
2006 through June 30, 2014, Newport Beach must provide 1,784 units ofresidential housing.
(See Tab E.) Of the 1,784 total residential units, 392 must be available to very-low income
households, 322 must be available to low income households, 362 must be available to
moderate income households, and 708 must be available to above moderate income
households. (Id.)
Moreover, the City's 2005 -2006 annual progress report on Housing Element Implementation
admits that, of the 86 very low- income units the City was required to develop under the prior
(1998 -2005) RHNA period, it only produced 24 and still needs to produce another 62 very
low- income units. (See Tab F.) Similarly, of the 83 very moderate - income units the City
was required to develop under the prior period, it failed to produce any such units. (Id.)
Finally, it appears that the. City does not have an Inclusionary Housing Ordinance that might
assist it in developing affordable housing. In June of last year, the Planning Commission
considered the adoption of such an ordinance (Tab G), and the following month the City
Council considered it. Tab H.) As drafted, the proposed ordinance would have added anew
Chapter 20.68 to the City's Zoning Code. (Id.) However, our review of the Zoning Code
indicates that there is no Chapter 20.68, and we are unable to otherwise find where the City
has adopted an Inclusionary Housing Ordinance. So given the foregoing, the question that
HCD has so fairly asked the City to answer remains relevant: where exactly is the City now
going to locate the more than one thousand affordable housing units that State Law requires
it to develop by 2014? The City has yet to answer this question.
Honorable Mayor and Members of the City of Newport Beach City Council
Re: North Newport Center Planned Community Development
December 11, 2007
Page 4
B. The Project Violates the No -Net Loss in Density Law.
In 2002, the Legislature added section 65863 to the Planning and Zoning Law; it has since
become known as the "No- Net -Loss in Density Law." (Government Code §65582.1(i).)
Section 65863(a) commands every city and county to "ensure that its inventory or programs
of adequate sites pursuant to paragraph (3) of subdivision (a) of section 65583 and paragraph
(1) of subdivision (c) of Section 65583 can accommodate its share of the regional housing
need pursuant to Section 65584, throughout the planning period." (Emphasis added.)
Government Code section 65583(a)(3) requires housing elements to contain "[a]n inventory
of land suitable for residential development" that includes (among other things) "[a] listing
of properties by. parcel number or other unique reference" [see Government Code
§65583.2(a) & (b)], and section 65583(c)(1) requires housing elements to "[i]dentify actions
that will be taken to make sites available during the planning period." The City's 2000 -2008
Housing Element does not include any of this.
In turn, section 65863(b) requires the City to "make [] written findings supported by
substantial evidence" that (1) "the reduction is consistent with the adopted general plan,
including the housing element" (emphasis added), and (2) that "[t]he remaining sites
identified in the housing element are adequate to accommodate the jurisdiction's share of the
regional housing need pursuant to Section 65584."
As will be explained more fully below, the City cannot make the first finding because one
cannot make a finding of consistency with an element of a general plan that does not comply
with State Law. As for the second finding, it should be noted that Government Code section
65584 deals solely with the housing element that will come after the City's current (2000-
2005) Housing Element: "the housing element [f]or the fourth and subsequent revisions of
the housing element pursuant to Section 65588," and that section provides a due date for the
City's "fourth revision" housing element of "June 30, 2006." (Government Code
§65588(c)(1).)
Thus by adding section 65863 to the Planning and Zoning Law, the Legislature has
for residential development unless and until the City comDletes its 2008-2014 Housing
Element update for the "fourth revision" period referenced in section 65584 utilizing
SCAG's new RHNA numbers.
Honorable Mayor and Members of the City of Newport Beach City Council
Re: North Newport Center Planned Community Development
December 11, 2007
Page 5
C. The City Council Cannot Make the Requisite Findings
that the Project Complies with the City's General Plan.
If land use approvals conflict with either a city's General Plan or Zoning Code, the approvals
are ultra vires and must be set aside. California land use regulations form a pyramid. "The
General Plan is atop the hierarchy of local government law regulating land use. It has been
aptly analogized to `a constitution for all future development'... Subordinate to the general
plan are zoning laws, which regulate the geographic allocation and allowed uses of land.
Zoning must conform to the adopted general plan." Neighborhood Action Group v. County
of Calaveras (1984) 156 Cal.App.3d 1176, 1183. "Since consistency with the general plan
is required, absence of a valid general plan, or valid relevant elements of components thereof,
precludes enactment of zoning ordinances, and the like.'...(Thus) the scope of authority of
the agency to enact a general plan and zoning ordinances and to apply them is governed by
the requirements of state law. A permit action taken without compliance with the hierarchy
of land use laws is ultra vires as to any defect implicated by the use sought by the permit."
Id., at 1184 (italics in original; emphasis added).
An ultra vires act is "beyond the scope ofpower allowed or granted... by law," (Black's Law
Dictionary 1525 (7th Ed. 1999)) and is void ab initio. (See Hansen v. California Bank
(1936) 17 Cal.App.2d 80, 100.) What does this mean? Where subordinate project approvals
conflict with the superior General Plan orZoning Ordinance, such approvals are void on their
face. Stated slightly differently, independent of the adequacy of the EIR, project approvals
granted in violation of the General Plan or Zoning Ordinance are invalid.
It is also noteworthy that, while a city's interpretation of its own general plan and zoning
ordinance is entitled to deference (Anderson First Coalition v. City of Anderson (2005)
130 Cal.AppAth 1173, 1192, such interpretation is not to be treated as irrefutable. (Bolsa
Chica Land Trust v. Superior Court (1997) 71 Cal. App. 4th 493, 504 [ "[b]ecause an
interpretation is an agency's legal opinion, however `expert', rather than the exercise of a
delegated legislative power to make law, it commands a commeasurably lesser degree of
judicial deference.'].) Therefore, although a court may consider a city's interpretation, it is
not bound by it. (Stolman v. City of Los Angeles (2003) 114 Cal.AppAth 916, 928.)
As shown above, the City's Housing Element is OUT of compliance with State Law.
Because this key element of the City's current General Plan does not comply with State Law,
the City cannot make the statutory findings required by the Planning and Zoning Law that
the Project is consistent with the General Plan. An approval cannot be consistent with a plan
or document that does not conform to State Law. This fact is uarticularly fatal to
Honorable Mayor and Members of the City of Newport Beach City Council
Re: North Newport Center Planned Community Development
December 11, 2007
Page 6
Develonment Agreement No. DA2007 -002 since it largely deals with the issue of residential
housing development and subdivision (b) of Planning and Zoning Law section 65867.5
expressly prohibits the City Council from Loproving any development agreement that is not
consistent with the General Plan.
II. THE ADDENDUM FOR THE PROJECT IS LEGALLY DEFICIENT
A. The Addendum Erroneously Declares that the Project Will Not Displace
Substantial Numbers of Existing Housing or Substantial Numbers of
People Necessitating the Construction of Replacement Housing Elsewhere.
The Addendum (3 -27) claims that the "population and housing impacts have been previously
analyzed as part of the General Plan EIR." It then goes on to explain that no new information
has arisen since the time that the General Plan EIR was certified that would necessitate the
preparation of a new environmental document. However, the discussion indicates that new
information, or changed circumstances, are extant as part of this Project. First, the
Addendum (3 -27) indicates that "the General Plan EIR analysis was based on a project with
600 units in Newport Center. The adopted 2006 General Plan allows for the development
of 450 residential units within the MU -H3 designation." However, despite HCD noting that
Newport Center is one of only two locations in the City where the development of affordable
housing is likely in the near -term, the Project proposes not to develop any affordable housing
in Newport Center as well as reduce the specified amount of housing specified for this area
under the General Plan.
Despite this fact, the Addendum failed to take into account Evidence Code section 669.5,
which states in pertinent part:
"(a) Any ordinance enacted by the governing body of a city,
county, or city and county which (1) directly limits, by number,
the building permits that may be issued for residential
construction or the buildable lots which may be developed for
residential purposes, or (2) changes the standards of residential
development on vacant land so that the governing body s zoning
is rendered in violation of Section 65913.1 of the Government
Code is presumed to have an impact on the supply of residential
units available in an area which includes territory outside the
jurisdiction of the citv county or city and county.
Honorable Mayor and Members of the City of Newport Beach City Council
Re: North Newport Center Planned Community Development
December 11, 2007
Page 7
(b) With respect to any action which challenges the validity of
an ordinance specified in subdivision (a) the city. county, or city
and county enacting the ordinance shall bear the burden of proof
that the ordinance is necessary for the protection of the public
health, safety, or welfare of the population of the city, county, or
city and county." (Emphasis added.)
Since State Law requires the Development Agreement No. DA2007 -002 to be adopted by
ordinance (Government Code section 65867.5(a)), the City bears the burden of rebutting the
presumption that the reduction of the residential density within Newport Center will have an
impact on the supply of residential units available within and without the City. However, the
Addendum failed to discuss this issue.
B. The Addendum Fails to Analyze and Mitigate
the Project's Global Warming Impacts
The Addendum claims that carbon dioxide and other greenhouse gas emissions were
analyzed and addressed in the 2006 General Plan EIR. However, a text search of the 2006
General Plan EIR reveals that neither carbon dioxide nor other greenhouse gases were
analyzed. Essentially, the Addendum's claim that the General Plan EIR analyzed impacts
when, in fact, it did not is nothing more than a fig leaf trying to conceal this omission.
Since the time that the 2006 General Plan EIR was adopted, the California Air Resources
Board has adopted some interim guidelines to be used by local agencies in analyzing global
warming impacts. These interim guidelines, as well as other legislation that became effective
January 1, 2007, constitute new information of substantial importance which was not known
at the time the 2006 General Plan EIR was certified and which shows that the Project will
have global warming impacts that were not discussed in the previous EIR.
Curbing greenhouse gas emissions to limit the effects of climate change is one of the most
urgent challenges of our time. Fortunately, CEQA sets forth a clear and mandatory process
for the City to deal with the Project's greenhouse gas and global warming impacts. As
detailed below, an EIR must be prepared for the Project so as to provide a complete and
adequate inventory of the Project's greenhouse gas emissions, a full discussion of the impacts
from those emissions, a significance determination regarding these impacts, and a thorough
and quantitative analysis of alternatives and avoidance and mitigation measures to reduce
those impacts. The good news is that there are numerous feasible measures that can greatly
reduce the Project's greenhouse gas emissions.
Honorable Mayor and Members of the City of Newport Beach City Council
Re: North Newport Center Planned Community Development
December 11, 2007
Page 8
The City is responsible for analyzing and reducing greenhouse gas pollution because the
agency with primary responsibility for implementing California's Global Warming Solutions
Act of 2006, A.B.32, 2005 -06 Sess., codified at Cal. Health & Safety Code §§ 38500 -99, has
not yet adopted regulations regarding mandatory greenhouse gas emission reporting,
verification, and measurement to achieve the "maximum technologically feasible and
cost - effective greenhouse gas emission reductions" from sources across the state as required
by the statute. (Cal. Health and Safety Code §38560.) The new law repeatedly emphasizes
that its greenhouse gas reduction mandates are in addition to all existing legal requirements
to reduce greenhouse gas emissions and protect the environment. (See, e.g., Cal. Health and
Safety Code § 38598 [ "Nothing in this division shall limit the existing authority of a state
entity to adopt and implement greenhouse gas emission reduction measures... Nothing in
this division shall relieve any state entity of its legal obligations to comply with existing law
or regulation. "]; § 38592(b) [ "Nothing in this division shall relieve any person, entity, or
public agency of compliance with other applicable federal, state, or local laws or regulations,
including state air and water quality requirements, and other requirements for protecting
public health and the environment. "]; and § 38592(b) [ "Nothing in this division shall relieve
any person, entity, or public agency of compliance with other applicable federal, state, or
local laws or regulations, including state air and water quality requirements, and other
requirements for protecting public health or the environment. "].) The City cannot avoid its
duty to analyze all of the Project's potentially significant impacts by pointing to laws that are
complementary and in addition to CEQA's requirements.
1. An EIR Must Be Prepared In Order To Provide an Inventory and
Analysis of the Project's Projected Greenhouse Gas Emissions
The first step in determining a project's greenhouse gas pollution impact is to complete a full
inventory of all emissions sources in the City. In conducting such an inventory, all phases
of the Project must be considered. (See 14 Cal. Code Regs. § 15126.) A basic requirement
of CEQA is that "[a]n EIR should be prepared with a sufficient degree of analysis to provide
decision - makers with information which enables them to make a decision which intelligently
takes account of environmental consequences." (14 Cal. Code Regs. § 15151.) The
greenhouse gas inventory for a project must include a complete analysis of all of the Project's
substantial sources of greenhouse gas emissions, from building materials and construction
emissions to operational energy use, vehicle trips, water supply and waste disposal.
The greenhouse gas inventory can be conducted in conjunction with the required assessment
of the project's energy consumption. As CEQA Guidelines Appendix F, entitled "Energy
Conservation," clarifies: "In order to assure that energy implications are considered in project
Honorable Mayor and Members of the City of Newport Beach City Council
Re: North Newport Center Planned Community Development
December 11, 2007
Page 9
decisions, the California Environmental Quality Act requires that EIRs include a discussion
of the potential energy impacts of proposed projects, with particular emphasis on avoiding
or reducing inefficient, wasteful and unnecessary consumption of energy." (See also Cal.
Pub. Res. Code § 21000(b)(3) [EIR must include section discussing "[m]itigation measures
proposed to minimize significant effects on the environment, including, but not limited to,
measures to reduce the wasteful, inefficient, and unnecessary consumption of energy. "].)
The Addendum's assessment of the Project's energy consumption is inadequate because it
does not address all of the Project's energy use as required by CEQA.
A greenhouse gas inventory for the Project must include the Project's direct and indirect
greenhouse gas emissions. (See 14 Cal. Code Regs § 15358(a)(1) [ "Indirect or secondary
effects may include growth- inducing effects and other effects related to induced changes in
the pattern of land use, population density, or growth rate, and related effects on air and
water and other natural systems, including ecosystems.'].) Consequently, a complete
inventory of the Project's emissions should include, at minimum, an estimate of emissions
from the following:
• Construction vehicles and machinery;
• Manufacturing and transport of building materials;
• Electricity generation and transmission for the hearing, cooling, lighting, and other
energy demands of the buildings;
• Water supply and transportation to the Project;
• Vehicle trips and transportation emissions generated by the Project;
• Fugitive emissions, such as methane leaks from pipeline systems and leaks of HFCs
from air conditioning systems;
• Wastewater and solid waste storage or disposal, including transport where applicable;
and
• Outsourced activities and contracting.
The City thus far has not conducted such an inventory, and the City has failed to analyze the
Project's greenhouse gas pollution in a meaningful way. Without a complete inventory, the
EIR cannot adequately inform the public and decision - makers about the Project's global
warming impacts. Without a complete inventory, and without preparing an EIR, there is
simply no way that the City can satisfy its obligations under CEQA to discuss alternatives,
avoidance, and mitigation measures to reduce those impacts. An EIR must be prepared to
include a full and adequate inventory of the Project's greenhouse gas emissions.
Honorable Mayor and Members of the City of Newport Beach City Council
Re: North Newport Center Planned Community Development
December 11, 2007
Page 10
The absence of a quantitative threshold of significance for greenhouse gas pollutants cannot
be used to justify the failure to omit discussion of this critical impact from the EIR, nor does
it render a significance determination "speculative." (See, e.g., 14 Cal. Code Regs.
§ 15064(b) [ "An ironclad definition of significant effect is not always possible because the
significance of an activity may vary with the setting "]; Cal. Pub. Res. Code §21068 [defining
"significant effect" qualitatively as a "substantial adverse change "].) Not only are
significance thresholds only "encouraged" [ 14 Cal. Code Regs. § 15064.7 (a)] as opposed
to required, but lead agencies cannot rely solely on rigid matrices in determining impact
significance; they must always consider "any fair argument that a certain environmental
effect may be significant." (Protect the Historic Amador Waterways v. Amador Water
Agency, (2004) 116 Cal. App. 4th 1099, 1109.)
To the extent the City relies on CEQA Guidelines section 15145 in refusing to find
greenhouse gas impacts "significant," this effort must fail. Section 15145 only applies in
limited circumstances, none of which apply here. There can be no serious contention that it
is not possible to measure the Project's emissions, or that the impact of greenhouse gas
emissions on human health, natural resources, and the environment have not been extensively
studied and reported in the scientific literature. As discussed further below, determining the
significance of the Project's greenhouse emissions is far from speculative. No reasonable
argument can be made that the Project's greenhouse gas emissions would not be significant.
As will be explained further below, the impact of greenhouse gas emissions on the climate
system is not "uncertain."
2. The Impact of the Project's Greenhouse Gas Emissions
Is Neither Uncertain nor Speculative'
An EIR must include a discussion of climate change and greenhouse gas emissions in order
to provide context for the discussion of impacts. By preparing an Addendum to the City's
2006 General Plan EIR, which did not analyze greenhouse gas emission, the City is skirting
its obligation to meaningfully analyze greenhouse gas emissions. The Addendum's
incomplete and belated discussion of greenhouse gas pollution is in large part incorrect,
muddled, and misleading.
The Intergovernmental Panel on Climate Change ( "IPCC ") was established by the World
Meteorological Organization and the United Nations Environment Programme in 1988. The
' Many of the documents (and others) can be found on the CD we have
submitted along with this letter.
Honorable Mayor and Members of the City of Newport Beach City Council
Re: North Newport Center Planned Community Development
December 1.1, 2007
Page 11
IPCC's mission is to assess available scientific and socio- economic information on climate
change and its impacts and the options for mitigating climate change and to provide, on
request, scientific and technical advice to the Conference of the Parties to the United Nations
Framework Convention on Climate Change. Since 1990, the IPCC has produced a series of
reports, papers, methodologies, and other products that have become the standard works of
reference on climate change. The Fourth Assessment Report is the most current
comprehensive IPCC reference and has built and expanded upon the IPCC's past products
(IPCC 2007a,b). We refer the EIR consultant and the City to "Climate Change 2007: The
Physical Science Basis: Summary for Policymakers" (IPCC 2007a) and "Climate Change
2007: Climate Change Impacts, Adaptation and Vulnerability: Summary forPolicymakers"
(IPCC 2007b), as well as the full scientific reports underlying these summary documents.
The full scientific report underlying IPCC 2007a is currently available at hap://www.il2cc.ch,
and the full scientific report underlying IPCC 2007b will be available at this site shortly.
Even more recent, peer reviewed works emphasize the urgent need to reduce greenhouse gas
emissions immediately: just ten more years of "business as usual" emissions may commit us
to climate feedbacks and impacts which would entirely transform the planet as we now know
it (Hansen et al. 2007).
There is nothing uncertain about the fact that higher levels of greenhouse gas pollution will
lead to greater impacts, which is why the State of California has prioritized greenhouse gas
pollution reductions. The EIR that should be prepared for the Project should also discuss
greenhouse gas emissions and global warming impacts in California. The literature details
many predicted and potential statewide environmental impacts. Some of the types of impacts
and estimated ranges of severity are summarized as follows:
• A 30 -90% reduction of the Sierra snowpack during the next 100 years,
including earlier melting and runoff.
o Greater difficulty with water storage, and an accompanying greater risk
of drought;
o Increased risk of flooding, especially in areas such as the
Sacramento -San Joaquin Delta ( "Delta ");
o Lower stream levels for much of the year including the summer,
resulting in increased stream temperatures and deleterious effects on
many fish, including species of salmon and steelhead trout listed as
threatened or endangered by the State and federal endangered species
acts, and other aquatic organisms;
0 Decreased albedo effect, with a resultant increase in global warming.
Honorable Mayor and Members of the City of Newport Beach City Council
Re: North Newport Center Planned Community Development
December 11, 2007
Page 12
• An increase in water temperatures at least commensurate with the increase in
air temperatures.
o Deleterious effects on aquatic organisms, including the Delta smelt and
species of salmon and steelhead trout currently listed as threatened or
endangered by the State and federal endangered species acts. California
already constitutes the southern end of many of these species' ranges,
and further water warming could result in their extirpation.
• A 6 -30 inch rise in sea level, before increased melt rates from the dynamical
properties of ice -sheet melting are taken into account.
o Increased salt water intrusion into fresh groundwater supplies, which could
lead to decreased water supplies in coastal areas and an increased reliance on
water from snowmelt;
o Inundation of coastal marshes and estuaries;
o Increased risk of flooding near river mouths due to backwater effects;
o Increased chance of levee failure in the Delta and resultant flooding;
o Increased salinity intrusion into the Delta with impacts on both estuarine
species and California water supply from the State Water Project, Central
Valley Project, and Contra Costa Water District.
• An increase in the intensity of storms, the amount of precipitation and the proportion
of precipitation as rain versus snow.
o Increased risk of flooding generally;
o Increased difficulty of water storage.
• Profound impacts to ecosystem and species, including changes in the timing
of life events, shifts in range, and community abundance shifts. Depending on
the timing and interaction of these impacts, they can be catastrophic.
b Approximately 59% of species in one survey of over 1600 species are
already experiencing impacts in one of the three categories described
above, and 85% of those changes are in the direction predicted
(Parmesan and Galbraith 2004);
O One leading study of over 1,100 species occurring over 20% of the
Earth's surface predicts that 18 %, 24 %, and 35% of species will be
committed to extinction by the years 2040 under low, medium, and high
warming scenarios, respectively (Thomas et al. 2004).
Honorable Mayor and Members of the City of Newport Beach City Council
Re: North Newport Center Planned Community Development
December 11, 2007
Page 13
• A 200 -400% increase in the number of heat wave days in major urban centers.
O Increased risk of death and illness for the elderly, children and other
at -risk populations, including persons with low- income.
• An increase in the number of days meteorologically conducive to ozone (Oa)
formation.
O Increased risk to persons with asthma;
O Reduction in crop and forest yields, increased plant susceptibility to
disease and pest infection and foliar damage to plants.
• At least a 10% increase in the potential for large wildfires (partially due to
increase concentrations of Oa and its resultant effects on vegetation).
This list of environmental, economic, and health impacts from global warming is not exhaustive, but
only illustrative of the types of impacts that the EIR should describe and analyze since the Project
would exacerbate or help precipitate them. (See Cal. Pub. Res. Code § 21060.5.) Major sources that
should be reviewed and considered include: California Department of Water Resources, (2006);
California EPA (2006); Intergovernmental Panel on Climate Change (2007a b); Kim (2005); Murray
and Weiss (2002); Parmesan and Galbraith (2004); Union of Concerned Scientists (2006); Thomas
et al. (2004); WHO (2002).)
There is also a robust, peer- reviewed literature on estimating the social costs of climate change and
quantifying the cost of carbon dioxide emissions (Stern 2006). We now know that the cost of
continued greenhouse gas emission trajectories would be astronomical (Stem 2006). Economic and
Social Costs may be used to determine the significance of physical changes to the environment.
(See CEQA Guidelines § 15046(e).)
The Stern Review of the Economics of Climate Change, a comprehensive report commissioned by
the British government, recently concluded that allowing current emissions trajectories to continue
unabated would eventually cost the global economy between 5 to 20 percent of GDP each year
within a decade, or up to $7 trillion, and warned that these figures should be considered conservative
estimates (Stern 2006). By contrast, measures to mitigate global warming by reducing emissions
were estimated to cost about one percent of global GDP each year, and could save the world up to
$2.5 trillion per year (Stern 2006). If we take no action to control emissions, each ton of CO2 that
we emit now is causing damage worth at least $85 (Stern 2006).
Overall, the World Health Organization estimates that as of the year 2000, 154,000 deaths and the
loss of 5.5 million daily adjusted life years per year worldwide are attributable to global warming
(World Health Organization 2002). This toll is due to the combined impacts ofhigher temperatures,
Honorable Mayor and Members of the City of Newport Beach City Council
Re: North Newport Center Planned Community Development
December 11, 2007
Page 14
increasing weather variability such as more frequent and intense droughts and floods, a pattern of
more violent tropical storms, as well as more subtle, gradual changes that can also profoundly
damage public health (Epstein and Mills 2005).
The EIR fails to adequately analyze the global warming impacts associated with the Project. While
the EIR mentions this topic generally and admits that it must be analyzed, the EIR fails to do so in
any. meaningful way. Many of the impacts described above will substantially affect the Project and
its impacts in the areas of energy use and utilities, water supply, and biological resources, among
others. The EIR must be revised to include a full discussion of these implications.
The Project's Greenhouse Gas Emissions Are Clearly Significant.
Once an EIR is prepared and includes a complete inventory and analysis of the Project's greenhouse
gas emissions, the City must determine whether or not there is substantial evidence that the project
may have a "significant" effect on the environment. (Cal. Pub. Res. Code § 21082.2(d).) "Said
another way, if a lead agency is presented with a fair argument that a project may have a significant
effect on the environment, the lead agency shall prepare an EIR even though it may also be presented
with other substantial evidence that the project will not have a significant effect." (14 Cal. Code
Regs. § 15064(f)(1), citing No Oil, Inc. v. City of Los Angeles (1974) 13 Cal-3d 68.)
A significance determination by the lead agency is mandatory, not discretionary. (Cal. Pub. Res.
Code § 21082.2(a) [ "The lead agency shall determine whether a project may have a significant
impact on the environment based on substantial evidence in light of the whole record. "].) CEQA
defines "significant effect on the environment" as "a substantial, or potentially substantial, adverse
change in the environment." (Cal. Pub. Res. Code § 21068; see also 14 Cal. Code Regs. § 15002(g);
§ 15382.) The EIR is also deficient because it has failed to make a significance determination for
the Project's greenhouse gas emissions. In evaluating the significance of a project's environmental
impacts, the lead agency must consider direct and reasonably foreseeable indirect physical changes
in the environment which may be caused by the project. (14 Cal. Code Regs. § 15064(d).)
Under CEQA, certain circumstances trigger a mandatory finding of significance. They are:
(1) "A proposed project has the potential to degrade the quality of the environment,
environmental goals;"
(2) "The possible effects of a project are individually limited but cumulatively
considerable. As used in this paragraph, `cumulatively considerable' means that the
incremental effects of an individual project are considerable when viewed in
connection with the effects ofpast projects, the effects ofother current projects, and
the effects of probable future projects;" and
Honorable Mayor and Members of the City of Newport Beach City Council
Re: North Newport Center Planned Community Development
December 11, 2007
Page 15
(3) "The environmental effects of a project will cause substantial adverse effects on
human beings, either directly or indirectly."
(Cal. Pub. Res. Code § 21083(b); see also 14 Cal. Code Regs. § 15065 [repeating and expanding on
these three triggers].) It is clear from an examination of these factors; as well as the overall context
and information in the record relating to the global warming issue that the Project's greenhouse gas
emissions are significant.
The State of California is working to identify all opportunities formajor greenhouse gas reductions
in order to meet the mandate of the California Global Warming Solutions Act, as well as comply
with Executive Order S -3 -05 (June 1, 2005) and other authority. Any new source of greenhouse gas
pollution must be considered significant, as approving a new source of emissions when the state is
working to reduce its total emissions back to 1990 levels by 2020 and to 80% below 1990 levels by
2050 clearly impedes and frustrates that mandate.
Creating an inventory of current emissions in the City is possible. The amount of greenhouse gas
emitted from sources such as vehicle trips, electricity, and natural gas use can be readily calculated
using standard emissions factors. For example, burning one gallon of gasoline in a car produces 8.87
kg CO2. Each cubic meter of natural gas burned for heat produces 1.93 kg CO2. And the
average kWh of electricity purchased in California required .61 lbs of CO2 to produce. These and
other emissions factors are available online at: http: / /www /wri.org/climate /pubs_ description.
cfin ?pid -3756. Despite the inadequacy of the EIR, it is clear from some of the information
that was disclosed, such as the thousands of daily vehicle trips that the Project would
generate, that the Project will produce a large amount of greenhouse gas pollution. The
Project clearly "has the potential to degrade the quality of the environment, curtail the range
of the environment, or to achieve short-term, to the disadvantage of long -term, environmental
goals." (Cal. Pub. Res. Code § 21083(b).) The Project would also "cause substantial adverse
effects on human beings, either directly or indirectly," particularly because as proposed it
would obstruct California's mandate to reduce greenhouse gas emissions. The greenhouse
gas emissions from the Project exceed any reasonable threshold of significance.
For example, included in the CD submitted along with this letter is a copy of the recent draft
EIR [SCH No. 20050811491 for the proposed "High Desert Gateway Shopping Center" in
Hesperia, with 393,400 square feet of retail building space on approximately 35.7 acres to
be "anchored" by a 180,000 square foot Super Target. Section 5.6 of the Hesperia EIR
[ "Global Warming/Greenhouse Gases "] analyzes that shopping center's "carbon footprint"
based on "general assumptions about energy use/consumption, transportation loads, and
market trade area." It then identifies "feasible mitigation measures, adopted to minimize the
projects greenhouse gas emissions and cumulative contribution to climate change impacts."
Finally, the Hesperia EIR concludes that, even with those mitigation measures, "because of
Honorable Mayor and Members of the City of Newport Beach City Council
Re: North Newport Center Planned Community Development
December 11, 2007
Page 16
legislative declarations as to the severity of the environmental problem, the ongoing
regulatory process at the [California Air Resources Board], and out of an overabundance of
caution" the project's cumulative impacts to global climate change "will be treated as
significant and unavoidable."
As the Hesperia EIR indicates, the era of public agencies preparing EIRs that fail to discuss and
analyze a project's greenhouse gas emissions and incremental contribution to global climate
change is now over. If the City of Hesperia is able to address these issues in the Hesperia
EIR —a proiect that is significantly smaller than the proposed Project here —then it is certainly
possible to address them in a subsequent EIR to the General Plan EIR.
A project's impacts also require a mandatory finding of significance if they are
"cumulatively considerable." (Cal. Pub. Res. Code § 21083(b).) The cumulative impacts
analysis is a critically important part of CEQA environmental review. The Legislature put
particular emphasis on cumulative impacts to ensure that environmental problems that result
from the combined effects of many relatively small factors are not overlooked because any
one project's contribution can be characterized by a project proponent or lead agency as
small or insignificant. Importantly, the requirement to analyze cumulative impacts cannot
be avoided by contending a project would only make a de minimis contribution to the
problem as a whole. As the court noted in Communities for a Better Environment v.
California Resources Agency, (2002) 103 Ca1.App.4th 98, 117, this interpretation of the
cumulative impacts requirement would "contravene the very concept of cumulative impacts"
and "turn the cumulative impact analysis on its head by diminishing the need to do a
cumulative impact analysis as the cumulative impact problem worsens." (See id. at 120
[ "[j]n the end, the greater the existing environmental problems are, the lower the threshold
should be for treating a project's contribution to cumulative impacts as significant.']; Kings
County Farm Bureau v. City of Hanford, 221 Cal. App. 3d 692, 721 (1990) [the EIR
"improperly focused upon the individual project's relative effects and omitted facts relevant
to an analysis of the collective effect this and other sources will have "].)
Climate change is a classic example of a cumulative effects problem; emissions from
numerous sources combine to create the most pressing environmental and societal problem
of our time. The solution to climate change lies not in any one single action, but in
systematically reducing emissions from all possible sources. The CEQA process is an ideal
context in which to do this, as CEQA requires full analysis, avoidance, and mitigation of a
proposed project's direct, indirect, and cumulative greenhouse gas emissions. The
Addendum omits a meaningful discussion of greenhouse gases from the cumulative impacts
section. This is particularly troubling since the cumulative impacts analysis is a key
Honorable Mayor and Members of the City of Newport Beach City Council
Re: North Newport Center Planned Community Development
December 11, 2007
Page 17
component of CEQA's scheme to protect the environment. There can be no reasonable
argument that the Project's cumulative greenhouse gas emissions are not significant.
Because the Project's greenhouse gas emissions are clearly significant, an EIR must be
prepared in order to analyze alternatives and measures to mitigate or avoid those impacts.
As discussed below, there are numerous measures available to greatly reduce the Project's
greenhouse gas emissions.
4. An EIR Must Be Prepared In Order to Analyze Alternatives and Avoidance
and Mitigation Measures to Reduce the Project's Greenhouse Gas Emissions.
Because the Addendum relies on a 2006 General Plan EIR that did not analyze carbon
dioxide or greenhouse gas emissions at all, it was inappropriate to rely on an Addendum
because the 2006 General Plan EIR did not analyze alternatives and avoidance and mitigation
measures to reduce these impacts. This analysis is the heart of CEQA, and must be
undertaken once the EIR has been prepared to include a complete and adequate inventory of
the Project's greenhouse gas emissions and a complete discussion of the Project's impacts.
The EIR should utilize a hierarchy of options to reduce greenhouse gas emissions: (1) first,
reduce the Project's energy use and greenhouse gas emissions as much as possible in the first
instance; (2) second, generate the Project's remaining required energy from carbon -free
sources, thereby reducing or eliminating the Project's emissions; and finally (3) offset or
otherwise mitigate emissions that cannot be eliminated.
There are many feasible options and measures to limit each of the Project's greenhouse gas
emission sources. These measures must be discussed explicitly with regard to greenhouse
gas emissions. The amount that each measure will reduce emissions must be quantified
wherever possible. All feasible measures must be adopted [14 Cal. Code Regs.
§ 15065(c)(3)J and must be mandatory and enforceable, not aspirational or voluntary.
(14 Cal. Code Regs. § 15126.4(a)(2).) Measures to reduce impacts may not be deferred until
some future time. (14 Cal. Code Regs. § 15126.4(a)(1)(B).) Available measures include, but
are not limited to the following:
1. Measures Relating to Project Design and Transportation:
• Analyze and incorporate alternative project locations and design to achieve
urban in -fill, minimize commute distances and times, and locate buildings near
existing transportation hubs.
Honorable Mayor and Members of the City of Newport Beach City Council
Re: North Newport Center Planned Community Development
December 11, 2007
Page 18
• Analyze and incorporate public transportation improvements as integral
Project components to minimize individual vehicle trips as follows:
o analyze the use of or availability of transportation impact or other fees
to provide public transportation improvements;
O analyze new infrastructure and service to serve the Project such as light
rail, bus, and shuttle service, which will utilize alternative fuels and
energy sources wherever possible;
O analyze improvements to overcome barriers to public transportation
use, including more frequent service, better coordination of transfers
and connecting services, enhancements to safety, comfort, and
cleanliness of conveyances, stations, and common areas, the provision
of shuttle services, and other services and incentives.
• Analyze and incorporate bicycle and pedestrian access pathways and access,
including both the routes and availability of bicycle parking/storage, as well
as access for bicycles to the stores, restaurants, and other buildings.
• Analyze and incorporate measures to promote ride - sharing and car- sharing to
reduce single- occupancy vehicle trips, including:
O Utilizing fee structures for access and parking to encourage ride and
car - sharing and discourage individual vehicle trips;
O Provide convenient, accessible, and affordable, centrally- located
car -share resources, including prioritizing parking spaces for such
vehicles;
O Encourage ride- sharing, van- pooling, and other measures with
prioritized parking spaces, adequate and safe loading and unloading
zones, etc.;
O Develop the necessary infrastructure for alternative fuel vehicles,
including plugin hybrid and electric vehicles, such as solar - powered
plug -in hybrid and electric vehicle charging stations.
2. Measures Related to P olect Construction:
Honorable Mayor and Members of the City of Newport Beach City Council
Re: North Newport Center Planned Community Development
December 11, 2007
Page 19
• Utilize recycled, low- carbon, and otherwise climate - friendly building materials
such as salvaged and recycled- content materials for building, hard surfaces,
and non -plant landscaping materials;
• Minimize, reuse, and recycle construction- related waste;
• Minimize grading, earth- moving, and other energy - intensive construction
practices;
• Landscape to preserve natural vegetation and maintain watershed integrity,
• Utilize alternative fuels in construction equipment and require construction
equipment to utilize the best available technology to reduce emissions.
3. Measures Relating to Buildin¢ Desien and Protect Operation:
• Analyzing and incorporating the U.S. Green Building Council's LEED
(Leadership in Energy and Environmental Design) or comparable standards
for energy- and resource - efficient building during pre - design, design,
construction, operations and management. (See http: / /www.us2bc.or2 and
links; Alameda County 2005);
• Designing buildings for passive heating and cooling, and natural light,
including building orientation, proper orientation and placement of windows,
overhangs, skylights, etc.;
• Designing buildings for maximum energy efficiency including the maximum
possible insulation, use of compact florescent or other low- energy lighting,
use of energy efficient appliances, etc.
• Reducing the use of pavement and impermeable surfaces;
• Requiring water re-use systems;
• Maximizing water conservation measures in buildings and landscaping, using
drought - tolerant plants in lieu of turf, planting shade trees;
• Ensure that the Project is fully served by full recycling and composting
services;
• Ensure that the Project's wastewater and solid waste will be treated in facilities
where greenhouse gas emissions are minimized and captured.
4. Measures Relating to Renewable Enersy Generation:
• Installing the maximum possible photovoltaic array on the building roofs
and/or on the project site to generate all of the electricity required by the
Project, and utilizing wind energy to the extent necessary and feasible;
Honorable Mayor and Members of the City of Newport Beach City Council
Re: North Newport Center Planned Community Development
December 11, 2007
Page 20
• Installing solar water heating systems to generate all of the Project's hot
water requirements;
• Installing solar or wind powered electric vehicle and plug -in hybrid vehicle
charging stations to reduce emissions from vehicle trips.
5. Offsetting Emissions:
• After all measures have been implemented to reduce emissions in the first
instance, remaining emissions that cannot be eliminated may be mitigated
through offsets. Care should be taken to ensure that offsets purchased are real
(additional), permanent, and verified, and all aspects of the offsets should be
discussed in the EIR.
The Addendum's deficiencies as discussed throughout not only render it legally defective but
also represent an enormous missed opportunity to improve land use planning and decision -
making and greatly slash the Project's greenhouse gas emissions. All of the measures listed
above must be incorporated unless it is shown, with substantial evidence on the record, that
they would be infeasible. Fortunately, these measures are eminently feasible and will result
in a vastly improved Project that saves consumers energy costs, promotes local jobs and
innovation, and complies with the mandates and aspirations of CEQA.
C. The Addendum Fails to Identify or Address
Potentially Significant Traffic Impacts of the Project.
Please refer to Orosz Engineering Group, Inc.'s, peer review of the City's Traffic Study
TS2007 -001 for an explanation of the Project's potentially significant traffic impacts.
D. Our Comments Are Timely Submitted.
This Project is being processed with such unseemly haste that our clients have had less than
two weeks since the November 29'" Planning Commission hearing to prepare for this hearing.
Lest the claim be made that our comments are somehow untimely, the following quote from
Bakersfield Citizens for Local Control v. City of Bakersfield (2004)124 Cal. App. 4th 1184,
1201, amply rebuts this claim:
"City appears to have thought that the public's role in the environmental
review process ends when the public comment period expires. Apparently, it
Honorable Mayor and Members of the City of Newport Beach City Council
Re: North Newport Center Planned Community Development
December 11, 2007
Page 21
did not realize that if a public hearing is conducted on project approval, then
new environmental objections could be made until close of this hearing. (§
21177, subd. (b); Guidelines, § 15202, subd. (b); Hillside, supra, 83
Cal.App.4th at p. 1263.) If the decisionmaking body elects to certify the EIR
without considering comments made at this public hearing, it does so at its
own risk. If a CEQA action is subsequently brought, the EIR may be found to
be deficient on grounds that were raised at any point prior to close of the
hearing on project approval."
III. CONCLUSION
In summary, the Project conflicts with the City's adopted Housing Element, and the
Addendum does not adequately disclose, analyze, minimize, or mitigate the environmental
impacts of the Project. Approval of the Project in its current form would violate the State
Planning and Zoning Law and CEQA. In addition, by failing to honestly identify the extent
of the traffic impacts that would result from the Project, the City has effectively forestalled
the local citizenry's rights under Measure S.
Because of the Project's shortcomings, and because the peoples' rights under the City's
Charter would be circumvented, neither the public nor you as the City's elected decision -
makers can make informed decisions about the proposed Project's costs in areas including
affordable housing, greenhouse gas emissions and global climate change, urban decay, and
traffic. We therefore urge that the City Council not approve the Project without first
preparing a subsequent EIR for public review.
Respectfully submitted,
LEIBOLD MCCLENDON & MANN, P.C.
By: John G. McClendon
Attachments
EXHIBIT A
qo
HOUSING ELEMENT COMPLIANCE REPORT
The Department makes every effort to ensure the following information is complete and
accurate. For any questions or clarifications, please contact the Division of Housing Policy
Development at (916) 445 -4728.
To determine the official status of each jurisdiction's housing element, refer to the column on
the right. The definitions of terms used are:
IN — local government adopted an element the Department found in compliance with State
housing element law.
OUT — either the local government adopted an element the Department found did not comply
with State housing element law, or the local government has not yet adopted a housing
element pursuant to the statutory schedule.
IN REVIEW — element is under review by the Department as of date of this report.
SC — only pertains to San Diego Association of Governments (SANDAG) in which the housing
element has been "self certified "' pursuant.to a pilot program authorized by Government Code
Section 65585.1.
NA — indicates element is not due pursuant to Government Code Section 65361(d) General
Plan Extension.
IN LOCAL PROCESS — the local government is in the process of adopting an element whose
draft element the Department found in compliance with State housing element law.
, NNI
AMADOR
AMADOR
DRAFT .
12/15/2006
Page 1 of 24
AMADOR COUNTY
HOUSING ELEMENT COMPLIANCE REPORT
07/01/2005
IN
IONE
10/16/2007
1:19 pm
IN
JACKSON
COUNTY/ CITY
TYPE
DATE ADOPTED
REVIEWED
COMPLIANCE'
ALAMEDA
IN
SUTTER CREEK
ADOPTED
ALAMEDA
DRAFT
12/08/2003
OUT
ALAMEDA COUNTY
ADOPTED
10/02/2003
11/14/2003
IN
ALBANY
DRAFT
08/23/2002
OUT
BERKELEY
ADOPTED
02/25/2003
03/27/2003
IN
DUBLIN
ADOPTED
06/03/2003
07/11/2003
IN
EMERYVILLE
ADOPTED
.. 11/20/2001
02/2212002
IN
FREMONT
ADOPTED
05/13/2003
07/17/2003
IN
HAYWARD
ADOPTED
10/21/2003
01/22/2004
IN
LIVERMORE
ADOPTED
09/15/2003
10/31/2003
IN
NEWARK
ADOPTED
12/12/2002
03114/2003
IN
OAKLAND
ADOPTED
06/15/2004
08/23/2004
IN
PIEDMONT
ADOPTED
11/18/2002
01/07/2003
IN
PLEASANTON
ADOPTED
04/15/2003
03/07/2005
OUT
SAN LEANDRO
ADOPTED
01/21/2003
04/13/2003
IN
UNION CITY
ADOPTED-
03/26/2002
07/11/2002
IN
ALPINE
ALPINE COUNTY
ADOPTED
03/30/2004-
05/07/2004
IN
AMADOR
AMADOR
DRAFT .
12/15/2006
OUT
AMADOR COUNTY
ADOPTED 05/10/2005
07/01/2005
IN
IONE
ADOPTED 05/17/2005
07/01/2005
IN
JACKSON
ADOPTED
OUT
PLYMOUTH
ADOPTED
03/11/2005
IN
SUTTER CREEK
ADOPTED
OUT
' COMPLIANCE: SC indicates Self Certification pursuant to Government Code Section 65585.1; NA indicates
element is not due pursuant to Government Code Section 65361(d) General Plan Extension.
COUNTY/ CITY
BUTTE
BIGGS
BUTTE COUNTY
CHICO
GRIDLEY
OROVILLE
PARADISE
CALAVERAS
ANGELS CAMP
CALAVERAS COUNTY
COLUSA
COLUSA
COLUSA COUNTY
WILLIAMS
HOUSING ELEMENT COMPLIANCE REPORT
10/16/2007 1:19 pm
TYPE DATE ADOPTED
ADOPTED
ADOPTED
ADOPTED
ADOPTED
ADOPTED
ADOPTED
ADOPTED
ADOPTED
ADOPTED
ADOPTED
ADOPTED
05/23/2005
06/08/2004
03101/2005
03/30/2004
02/13/2007
05/09/2005
03/30/2004
11/23/2004
12/21/2004
Page 2 of 24
06/13/2005
09/08/2004
06/06/2005
04116/2004
06/24/2004
05/23/2007
10/12/2004
07/18/2005
06/30/2004
12/15/2004
12/30P1004
COMPLIANCE "
IN
IN
IN
IN
IN
IN
e
IN
IN
OUT
IN
IN
=4
' COMPLIANCE: SC indicates Self Certification pursuant to Government Code Section 65585.1; NA Indicates
element is not due pursuant to Government Code Section 65361(d) General Plan Extension.
Page 3 of 24
HOUSING ELEMENT COMPLIANCE.REPORT
COUNTY/ CITY
CONTRA COSTA
ANTIOCH
BRENTWOOD
CLAYTON
CONCORD
CONTRA COSTA COUNTY
DANVILLE
EL CERRITO
HERCULES
LAFAYETTE
MARTINEZ
MORAGA
OAKLEY
ORINDA
PINOLE
PITTSBURG
PLEASANT HILL
RICHMOND
SAN PABLO
SAN RAMON
WALNUT CREEK
DEL NORTE
CRESCENT CITY
DEL NORTE COUNTY
EL DORADO
EL DORADO COUNTY
PLACERVILLE
SOUTH LAKE TAHOE
10/16/2007 1:19 pm
TYPE
DATE ADOPTED
REVIEWED
COMPLIANCE'
DRAFT
10/14/2005
OUT
DRAFT
08/01/2005
IN
ADOPTED
09106/2005
12/27/2005
IN
ADOPTED
01/14/2003
03/07/2003
IN
ADOPTED
12/18/2001
03/2612002
IN
ADOPTED
03/05/2002
04/15/2002
IN
ADOPTED
01/21/2003
02/27/2003
IN
ADOPTED
12/27/2004
12/30/2004
IN.
ADOPTED
10/28/2002
01102/2003
IN
ADOPTED
07/20/2005
08/2412005
IN
ADOPTED
06/04/2002
12/27/2002
OUT
ADOPTED
03/07/2005
06/10/2005
IN
ADOPTED
10/19/2004
02/04/2005
OUT
ADOPTED
05/05/2003
06/16/2003
IN
ADOPTED
11%01/2004
01/21/2005
IN
ADOPTED
03/03/2003
04/02/2003
IN
ADOPTED
02/07/2006
02/27/2006
IN
ADOPTED
08/05/2002
08/23/2002
IN
ADOPTED
07/27/2004
11102/2004
IN
ADOPTED
10/01/2002
12118/2002
IN
ADOPTED
10/31/2003
12/2912003
IN
ADOPTED
10/31/2003
12/29/2003
IN
ADOPTED
07/19/2004
02/03/2005
OUT
ADOPTED
02/03/2005
IN
ADOPTED
09/16/2003
12/23/2003
IN
A
COMPLIANCE: SC indicates Self Certification pursuant to Government Code Section 65585.1; NA indicates
element is not due pursuant to Government Code Section 65361(d) General Plan Extension.
Page 4 of 24
HOUSING ELEMENT COMPLIANCE REPORT
10/16/2007 1:19 pm
COUNTY/ CITY
TYPE
DATE ADOPTED
REVIEWED
COMPLIANCE
FRESNO
ADOPTED
06/22/2004
01/1312005
IN
' CLOVIS
ADOPTED
09/03/2002
02M1/2003
IN
COALINGA
ADOPTED
01/15/2004
04117/2004
IN
FIREBAUGH
ADOPTED
01/05/2004
06124/2004
OUT
FOWLER
DRAFT
08/29/2003
OUT
FRESNO
ADOPTED
01/13/2004
05120/2004
IN
FRESNO COUNTY
ADOPTED
0312512003
05/2212003
IN
HURON
ADOPTED
03/0212005
04/1412005
IN
KERMAN
DRAFT
08/16/2006
OUT
KINGSBURG
ADOPTED
06/24/2002
09/2612002
OUT
MENDOTA
ADOPTED
07/1412004
09/10/2004
IN
ORANGE COVE
ADOPTED
03/12/2003
04/04/2003
IN
PARLIER
ADOPTED
OUT
REEDLEY
ADOPTED
09/23/2004
12/23/2003
IN
SAN JOAQUIN
ADOPTED
09/2412003
1205/2003
IN
SANGER
DRAFT
IN REVIEW
SELMA
DRAFT
09/30/2003
OUT
GLENN
GLENN COUNTY
ADOPTED
12!0212003
12/29/2003
IN
ORLAND
ADOPTED
0410112004
04/23/2004
IN
WILLOWS
DRAFT
06/1012005
OUT
HUMBOLDT
ARCATA
ADOPTED
03/1712004
0412712004
IN
BLUE LAKE
ADOPTED
06/22/2004
01/1312005
IN
EUREKA
ADOPTED
05/1812004
05/2812004
IN
FERNDALE
ADOPTED
09/14/2006
10/0412006
IN
FORTUNA
ADOPTED
03/29/2004
06/22/2004
OUT
HUMBOLDT COUNTY
ADOPTED
06/05/2006
IN
RIO DELL
ADOPTED
01/1312004
0412712004
IN
TRINIDAD
ADOPTED
OUT
" COMPLIANCE: SC indicates Self Certification pursuant to Government Code Section 65585.1; NA indicates
element is not due pursuant to Government Code Section 65361(d) General Plan Extension.
Page 5 of 24
HOUSING ELEMENT COMPLIANCE REPORT
10/16/2007 1:19 pm
COUNTY/ CITY
TYPE
DATE ADOPTED
REVIEWED
COMPLIANCE
IMPERIAL
BRAWLEY
ADOPTED
05/29/2001
06/06/2001
IN
CALEXICO
ADOPTED
10/05/1999
03101/2000
IN
CALIPATRIA
ADOPTED
03124/2004
05/21/2004
IN
EL CENTRO
ADOPTED
03/15/2000
04/20/2000
IN
HOLTVILLE
ADOPTED
04 /09/2001
05/23/2001
IN
IMPERIAL
ADOPTED
04118/2001
050/2001
IN
IMPERIAL COUNTY
ADOPTED
03120/2001
03/27 /2001
IN
WESTMORLAND
ADOPTED
08/21/2002
02111/2003
IN
r
INYO
BISHOP
ADOPTED
06/28/2004
07/15/2004
IN
INYO COUNTY
ADOPTED
04 /06/2004
09/0212004
IN
KERN
ARVIN
ADOPTED
OUT
BAKERSFIELD
ADOPTED
01/29/2003
05/19/2003
IN
CALIFORNIA CITY
ADOPTED
03/16/2004
07/15/2004
IN
DELANO
ADOPTED
04 /0212003.
07/01/2003
IN
KERN COUNTY
ADOPTED
09/10/2002
12105/2002
IN
MARICOPA
ADOPTED
OUT
MCFARLAND
ADOPTED
OUT
RIDGECREST
ADOPTED
09/06/2002
10/24/2002
IN
SHAFTER
DRAFT
06/13/2005
OUT
TAFT
ADOPTED
12121/2004
12/30/2004
IN
TEHACHAPI
ADOPTED
01/06/2004
06/2212004
IN
WASCO
ADOPTED
11/05/2002
02107/2003
IN
KINGS
AVENAL
ADOPTED
03/14/2004
.04/21/2004
IN
CORCORAN
ADOPTED
03/17/2004
04/21/2004
IN
HANFORD
ADOPTED
03117/2004
04/21 /2004
IN
KINGS COUNTY
ADOPTED
03/16/2004
04/21 /2004
IR
LEMOORE
ADOPTED
03116/2004
04/21 /2004
IN
* COMPLIANCE: SC indicates Self Certification pursuant to Government Code Section 65585.1; NA indicates
element is not due pursuant to Government Code Section 65361(d) General Plan Extension.
COUNTY/ CITY
711
CLEARLAKE
LAKE COUNTY
LAKEPORT
LASSEN
LASSEN COUNTY
SUSANVILLE
* COMPLIANCE: SC indicates Self Certification pursuant to Govemment Code Section 65585.1; NA indicates
element is not due pursuant to Government Code Section 65361(d) General Plan Extension.
Page 6 of 24
HOUSING ELEMENT COMPLIANCE REPORT
10/16/2007
1:19 pm
TYPE
DATE ADOPTED
REVIEWED.
COMPLIANCE
ADOPTED
07!08!2004
08/05/2004
IN
ADOPTED
12107/2004
03/25/2005
IN
ADOPTED
01/26!2005
04/29/2005
IN
ADOPTED
03/2312004
04/28 /2004
IN
ADOPTED
03/17/2004
0426/2004
IN
* COMPLIANCE: SC indicates Self Certification pursuant to Govemment Code Section 65585.1; NA indicates
element is not due pursuant to Government Code Section 65361(d) General Plan Extension.
COUNTY/ CITY
LOS ANGELES
AGOURA HILLS
ALHAMBRA
ARCADIA
ARTESIA
AVALON
AZUSA
BALDWIN PARK
BELL
BELL GARDENS
BELLFLOWER
BEVERLY HILLS
BRADBURY
BURBANK
CALABASAS
CARSON
CERRITOS
CLAREMONT
COMMERCE
COMPTON
COVINA
CUDAHY
CULVER CITY
DIAMOND BAR
DOWNEY
.DUARTE
EL MONTE
ELSEGUNDO
GARDENA
GLENDALE
GLENDORA
HAWAIIAN GARDENS
HAWTHORNE
HERMOSA BEACH
HIDDEN HILLS
HUNTINGTON PART(
INDUSTRY
HOUSING ELEMENT COMPLIANCE REPORT
10/16/2007 1:19 pm
TYPE
ADOPTED
ADOPTED
ADOPTED
ADOPTED
ADOPTED
ADOPTED
ADOPTED
ADOPTED
ADOPTED
ADOPTED
ADOPTED
ADOPTED
ADOPTED
ADOPTED
ADOPTED
ADOPTED
ADOPTED
DRAFT
ADOPTED
ADOPTED
ADOPTED
ADOPTED
ADOPTED
ADOPTED
ADOPTED
ADOPTED
ADOPTED
ADOPTED
DRAFT
ADOPTED
ADOPTED
ADOPTED
ADOPTED
ADOPTED
ADOPTED
DRAFT
DATE ADOPTED
07/13/2001
12/10/2001
11/06/2001
11/10/2003
03121/2006
12/03/2001
12/21/2001
11/14/2005
11/24/2003
07/19/2001
1 211 9/2 0 0 0
06/26/2001
10/03/2001
07/02/2002
02/28/2002
11/14/2006
06/27/2000
07/09/2001
01/16/2001
12/11/2001
08/24/2004
07/03/2001
07/01/2001
12/12/2000
04/11/2002
10/28/2003
08/25/2003
08/18/2003
02/14/2005
12/18/2000
�S
Page 7 of 24
REVIEWED COMPLIANCE'
10/11/2001
03/19/2002
0211 1/2002
12/17/2003
06/16/2006
12/26/2001
10/23/2003
02121 /2006
02/02/2004
10/23/2001
04/04/2001
08/22/2001
03/06/2002
08/14/2002
06/11/2002
02/21/2007
10/04/2007
10/03/2000
08/10/2001
03/22/2001
07/18/2002
11/03/2004
08/17/2001
10/24/2001
01/11/2001
10/17/2006
06/25/2002
02/03/2004
12/12/2003
09/12/2003
07/27/2005
04/26/2001
05/15/2007
IN
IN
IN
IN
IN
IN
IN
OUT
IN
IN
bUT
IN
IN
IN
IN
IN
IN
OUT
IN .
OUT
OUT
IN
IN
IN
IN
IN
IN
IN
IN
IN
IN
IN
IN
OUT
IN_
OUT
' COMPLIANCE: SC indicates Self Certification pursuant to Government Code Section 65585.1; NA indicates
element is not due pursuant to Government Code Section 65361(d) General Plan Extension.
M
Page 8 of 24
HOUSING ELEMENT COMPLIANCE REPORT
10/16/2007 1:19 pm
COUNTY/ CITY
TYPE
DATE ADOPTED
REVIEWED
COMPLIANCE
LOS ANGELES
` INGLEWOOD
ADOPTED
02/28/2006
IN
IRWINDALE
ADOPTED
OUT
LA CANADA FLINTRIDGE
DRAFT
07/27/2001
OUT
LA HABRA HEIGHTS
ADOPTED
01/10/2002
04/26/2002
OUT
LA MIRADA
ADOPTED
05/08/2001
06/08/2001
IN
LA PUENTE
ADOPTED
12/12/2000
04/13 /2001
IN
LA VERNE
ADOPTED
10/16/2000
12/12/2000
IN
LAKEWOOD
ADOPTED
08/22/2002
11/08/2002
IN
LANCASTER
ADOPTED
06/26/2001
09/21 /2001
IN
LAWNDALE
ADOPTED
05/21/2001
09/10/2001
IN
LOMITA
ADOPTED
06/04/2007
07/19/2007
JN
LONG BEACH
ADOPTED
04 /17/2001
07/13/2001
IN
LOS ANGELES
ADOPTED
12/18/2002
02/27/2002
IN
LOS ANGELES COUNTY
ADOPTED
10/23/2001
02/1512002
IN
LYNWOOD
DRAFT
IN REVIEW
MALIBU
ADOPTED
02/12/2001
06/20/2001
OUT
MANHATTAN BEACH
ADOPTED
02/04/2003
05/14/2003
IN
MAYWOOD
ADOPTED
10/09/2001
08/14/2002
IN
MONROVIA
ADOPTED
04/22/2003
05112/2003
IN
MONTEBELLO
ADOPTED
OUT
MONTEREY PARK
ADOPTED
07/1:8/2001
01/30/2002
IN
NORWALK
ADOPTED
07/17/2001
11/01/2001
IN
PALMDALE
ADOPTED
04/11/2001
07/19/2001
IN
PALOS VERDES ESTATES
ADOPTED
08/14/2001
11/20/2001
OUT
PARAMOUNT
ADOPTED
01/03/2005
03/24/2005
IN
PASADENA
ADOPTED
11/04/2002
02/131,2003
IN
PICO RIVERA
ADOPTED
11/20/2001
11/20/2001
IN
POMONA
DRAFT
02/20/2007
IN
RANCHO PALOS VERDES
ADOPTED
08/21/2001
09/2012001
IN
REDONDO BEACH
ADOPTED
10/17/2000
12/20/2000
IN
ROLLING HILLS
ADOPTED
07/09/2001
10/17/2001
OUT
ROLLING HILLS ESTATES
DRAFT
05104/2001
OUT
ROSEMEAD
ADOPTED
03/26/2002
06/06/2002
IN
SAN DIMAS
ADOPTED
08/13/2002
11/19/2002
IN
SAN FERNANDO
ADOPTED
11/06/2000
12/1512000.
IN
SAN GABRIEL
ADOPTED
11/19/2002
61/07/2003
IN
COMPLIANCE: SC indicates Self Certification pursuant to Government Code Section 65585.1; NA indicates
element is not due pursuant to Government Code Section 65361(d) General Plan Extension.
COUNTY/ CITY
LOS ANGELES
SAN MARINO
SANTA CLARITA
SANTA FE SPRINGS
SANTA MONICA
SIERRA MADRE
SIGNAL HILL
SOUTH EL MONTE
SOUTH GATE
SOUTH PASADENA
TEMPLE CITY
TORRANCE
VERNON
WALNUT
WEST COVINA
WEST HOLLYWOOD
WESTLAKE VILLAGE
WHITTIER
MADERA
CHOWCHILLA
MADERA
MADERA COUNTY
Pa.
Page 9 of 24
HOUSING ELEMENT COMPLIANCE REPORT
10h6/2007 1:19 pm
TYPE
DATE ADOPTED
REVIEWED
COMPLIANCE'
DRAFT
06/2212001
OUT
ADOPTED
05/2512004
08/13/2004
IN
ADOPTED
12/14/2000
02/02/2001
IN
ADOPTED
12/11/2001
03121/2002
IN
ADOPTED
03/24/2003
05/09/2003
IN
ADOPTED
.12/1812001
03/26/2002
IN
ADOPTED
04/09/2002
04/23/2002
IN
ADOPTED
04/11/2005
09/1612005
OUT
ADOPTED
03/07/2001
09/07/2001
OUT
DRAFT
11/21/2001
OUT
ADOPTED
02/27/2001
06/25/2001
IN
DRAFT
05/02/2006
IN
ADOPTED.
02/13/2002
06/12/2002
IN
DRAFT.
02/14/2005
OUT
ADOPTED
05120/2002
09/16/2002
IN
ADOPTED
07/10/2002
09/06/2002
IN
DRAFT
10/23/2006
OUT
ADOPTED
12/13/2004
01/24/2005
IN
ADOPTED
12/17!2003
03/22/2004
IN
ADOPTED
12/13/2004
12/28/2004
IN
COMPLIANCE: SC indicates Self Certification pursuant to Government Code Section 65585.1; NA indicates
element is not due pursuant to Government Code Section 65361(d) General Plan Extension.
Page 10 of 24
HOUSING ELEMENT COMPLIANCE REPORT
10!16!2007 1:19 pm
COUNTY/ CITY
TYPE
DATE ADOPTED
REVIEWED
COMPLIANCE "
MARIN
BELVEDERE
ADOPTED
04104 /2005
07/01/2005
IN
CORTE MADERA
ADOPTED
08/14/2002
11/20/2002
IN
FAIRFAX
ADOPTED
06/07/2006
10/18/2006
OUT
LARKSPUR
ADOPTED
10/20/2004
12110/2004
IN
MARIN COUNTY
ADOPTED
06/03/2003
07/24/2003
IN
MILL VALLEY
ADOPTED
09/15/2003
02110/2004
IN
NOVATO
ADOPTED
03/25/2003
07/03/2003
IN
ROSS
ADOPTED
01/13/2005
04/27 /2005
IN
SAN ANSELMO
ADOPTED
04/13/2004
05/07/2004
IN
SAN RAFAEL
.ADOPTED
11/15/2004
12/29/2004
IN
SAUSALITO
DRAFT
07/26/2005
OUT
TIBURON
ADOPTED
09/07/2005
12/09/2005
IN
MARIPOSA
MARIPOSA COUNTY
ADOPTED
01/13/2004
04/13 /2004
IN
MENDOCINO
. FORT BRAGG
ADOPTED
12/08/2003
01/05/2004
IN
MENDOCINO COUNTY
ADOPTED
12/14/2004
12/27/2004
IN
POINTARENA
ADOPTED-
10/25/2005
11/17/2005
IN
UKIAH
ADOPTED
006/2004
07/12/2004
IN
' WILLITS
ADOPTED
03/24/2004
05/21/2004
IN
MERCED
ATWATER
DRAFT
09/0212004
OUT
DOS PALOS
ADOPTED
03/25/2003
03/28/2003
IN
GUSTINE
ADOPTED
OUT
LIVINGSTON
ADOPTED
05/2412004
07/12/2004
IN
LOS BANOS
ADOPTED
12117/2003
03/29/2004
IN
MERCED
ADOPTED
06/21/2004
08/12/2004
IN
MERCED COUNTY
ADOPTED
09/28/2004
12/14/2004
IN
' COMPLIANCE: SC indicates Self Certification pursuant to Government Code Section 65585.1 i NA &cates
element is not due pursuant to Government Code Section 65361(d) General Plan Extension.
Page 11 of 24
HOUSING ELEMENT COMPLIANCE REPORT
Z 1,17_1
AMERICAN CANYON
10/16/2007
1:19 pm
11/03/2006
IN
COUNTYI CITY
TYPE
DATE ADOPTED
REVIEWED
COMPLIANCE*
MODOC
ADOPTED
02101/2005
04114 /2005
IN
ALTURAS
ADOPTED
06/15/2005
08/09/2005
IN
MODOC COUNTY
ADOPTED
05/09/2006
07/06/2006
IN
MONO
ADOPTED
05107/2004
07/12/2004
IN
MAMMOTH LAKES
ADOPTED
. 12117/2003
12129/2003
IN
MONO COUNTY
ADOPTED
03/17/2004
08/05/2004
IN
MONTEREY
CARMEL
ADOPTED
1 211 0/2 004
IN
DEL REY OAKS
DRAFT
10/04/2006
OUT
GONZALES
ADOPTED
04/21/2003
08/05/2003
IN
GREENFIELD
ADOPTED
02/24/2006
OUT
KING CITY
ADOPTED
09/14/2004
12117/2004
IN
MARINA
ADOPTED
12114/2004
01/31/2005
IN
MONTEREY
ADOPTED
05/04/2004
05118/2004
IN
MONTEREY COUNTY
ADOPTED
11/04/2003
01/0212004
IN
PACIFIC GROVE
ADOPTED
12113/2003
03112/2004
OUT
SALINAS .
ADOPTED
09/17/2002
04/09 /2003
IN
SAND CITY
ADOPTED
04/01/2003
05/08/2003
IN
SEASIDE
ADOPTED
05115/2003
09/09/2003
IN
SOLEDAD
ADOPTED
03/26/2003
07/03/2003
IN
Z 1,17_1
AMERICAN CANYON
ADOPTED
11/03/2006
IN
CALISTOGA
ADOPTED
02117/2004
05/1312004
IN
NAPA
ADOPTED
02101/2005
04114 /2005
IN
NAPA COUNTY
ADOPTED
10/26/2004
12114/2004
IN
SAINT HELENA
ADOPTED
08/13/2002
10/21/2002
IN
YOUNTVILLE
ADOPTED
05107/2004
07/12/2004
IN
* COMPLIANCE: SC indicates Self Certification pursuant to Government Code Section 65585.1; NA indicates
element is not due pursuant to Government Code Section 65361(d) General Plan Extension.
!:
0..
* COMPLIANCE: SC indicates Self Certification pursuant to Government Code Section 65585.1; NA indicates
element is not due pursuant to Government Code Section 65361(d) General Plan Extension. *'
Page 12 of 24' .
HOUSING ELEMENT COMPLIANCE
REPORT
10/16/2007 1:19 pm
COUNTY/ CITY
TYPE
DATE ADOPTED
REVIEWED
COMPLIANCE
NEVADA
GRASS VALLEY
ADOPTED
01/27/2004
04/28/2004
IN
- NEVADA CITY
ADOPTED
07/14/2003
09/26/2003
OUT
NEVADA COUNTY
ADOPTED
10/05/2004
12/21/2004
IN
TRUCKEE
ADOPTED
03/30/2005
06/23/2005
IN
0..
* COMPLIANCE: SC indicates Self Certification pursuant to Government Code Section 65585.1; NA indicates
element is not due pursuant to Government Code Section 65361(d) General Plan Extension. *'
Page 13 of 24
HOUSING ELEMENT COMPLIANCE REPORT
10/16/2007 1:19 pm
COUNTY / CITY
TYPE
DATE ADOPTED
REVIEWED
COMPLIANCE
ORANGE,
ALISO.VIEJO
ADOPTED
04/21 /2004
07/27/2004
IN
ANAHEIM
ADOPTED
10/29/2002
02/06/2003
IN
BREA
ADOPTED
10103/2000
03/28/2001
IN
BUENA PARK
ADOPTED
06/12/2001
08/17/2001
IN
COSTA MESA
ADOPTED
11/19/2001
02/22/2002
IN
CYPRESS
ADOPTED
09/10/2001
11/09/2001
IN
DANA POINT
DRAFT
12/08/2006
OUT
FOUNTAIN VALLEY
ADOPTED
11/07/2000
03/22/2001
IN
FULLERTON
ADOPTED
12/14/2001
03/21/2002
IN
GARDEN GROVE
ADOPTED
02/12/2002
05/30/2002
IN
HUNTINGTON BEACH
ADOPTED
12/18/2000
04/10/2001
IN
IRVINE
ADOPTED
11/27/2001
05/09/2002
IN
LA HABRA
ADOPTED
07/07/2003
10/20/2003
IN
LA PALMA
ADOPTED
01/07/2003
04/03/2003
IN
LAGUNA BEACH
ADOPTED
07/17/2001
09/20/2001
IN
LAGUNA HILLS
ADOPTED
11/27/2001
03/07/2002
OUT
LAGUNA NIGUEL
ADOPTED
06/20/2000
09/25/2000
IN
LAGUNA WOODS
ADOPTED
07/16/2003
10/02/2003
IN
LAKE FOREST
ADOPTED
12/19/2000
05/08/2001
IN
LOS ALAMITOS
ADOPTED
03/26/2001
06/29/2001
IN
MISSION VIEJO
ADOPTED
06/18/2007
06127/2007
IN
NEWPORT BEACH
ADOPTED
07/25/2006
09/10/2007
OUT
ORANGE
ADOPTED
10/09/2001
11/29/2001
IN
ORANGE COUNTY
ADOPTED
06120/2006
11/3012006
IN
PLACENTIA
ADOPTED
12/02/2002
03103/2003
IN
RANCHO ST. MARGARITA
ADOPTED
12/19/2002
07/22/2003
IN
SAN CLEMENTE
ADOPTED
12/20/2000
09/14/2001
IN
SAN JUAN CAPISTRANO
ADOPTED
11/06/2001
11/21/2001
IN
SANTA ANA
ADOPTED
12/1812000
04119/2001
IN
SEAL BEACH
DRAFT
08/2312001
OUT
STANTON.
ADOPTED
06/12/2001
10123/2001
IN
TUSTIN
ADOPTED
11/04/2002
02/05/2003
IN
VILLA PARK
ADOPTED
06126/2001
12/1812001
IN
WESTMINSTER
ADOPTED
04/04/2001
05/3012001
IN
YORBA LINDA
ADOPTED
03/19/2002
07/01/2002
IN
* COMPLIANCE: SC indicates Self Certification pursuant to Govetnment Code Section 65585.1; NA indicates
element is not due pursuant to Government Code Section 65361(d) General Plan Extension.
COUNTY/ CITY
AUBURN
COLFAX
LINCOLN
LOOMIS
PLACER COUNTY
ROCKLIN
ROSEVILLE
PLUMAS
PLUMAS COUNTY
PORTOLA
" COMPLIANCE: SC indicates Self Certification pursuant to Government Code Section 65585.1: NA indicates
element is not due pursuant to Government Code Section 65361(d) General Plan Extension.
Page 14 of 24
HOUSING ELEMENT COMPLIANCE. REPORT
10!16!2007 1:19 pm
TYPE
DATE ADOPTED
REVIEWED
COMPLIANCE
ADOPTED
10/11/2004
12/03/2004
IN-
ADOPTED
03/23/2004
05/25/2004
IN
ADOPTED
11/25/2003
01/05/2004
IN
ADOPTED
02/14/2006
05/24/2006
IN
ADOPTED
05120/20.03
07/10/2003
IN
ADOPTED
05/25/2004
08/09/2004
IN
ADOPTED
10/09/2002
10/30/2002
IN
ADOPTED
04/04/2006
07/21/2006
IN
ADOPTED
02/22/2006
05/19/2006
IN
" COMPLIANCE: SC indicates Self Certification pursuant to Government Code Section 65585.1: NA indicates
element is not due pursuant to Government Code Section 65361(d) General Plan Extension.
*COMPLIANCE: SC indicates Self Certification pursuant to Government Code Section 65585.1; NA indicates
element is not due pursuant to Government Code Section 65361(d) General Plan Extension.
f
Page 15 of 24
HOUSING ELEMENT COMPLIANCE REPORT
10/16/2007
1:19 pm
COUNTY/ CITY
TYPE
DATE ADOPTED
REVIEWED
COMPLIANCE "
RIVERSIDE
BANNING
DRAFT
11/04/2005
OUT
BEAUMONT
ADOPTED
11/19/2002
03/03/2003
IN
BLYTHE
DRAFT
06/06/2003
OUT
CALIMESA
ADOPTED
01/07/2002
04/29/2002
IN
CANYON LAKE
DRAFT
02/14/2003
OUT
CATHEDRAL
ADOPTED
12/13/2000
01/11/2001
IN
COACHELLA
ADOPTED
08/2212001
12/04/2001
IN
CORONA
ADOPTED
07/18/2001
08/14/2001
IN
DESERT HOT SPRINGS ADOPTED
09/05/2000
12/29/2000
IN
HEMET
ADOPTED
09/25/2001
11/09/2001
IN
INDIAN WELLS
DRAFT
01/26/2007
OUT
INDIO
ADOPTED
03/02/2005
05/12/2005
IN
LA QUINTA
ADOPTED
11/02/2004
12130/2004
IN
LAKE ELSINORE
ADOPTED
02/26/2002
06/26/2002
IN
MORENO VALLEY
ADOPTED
07/11/2006
07/26/2006
IN
MURRIETA
ADOPTED
12/18/2001
12/26/2001
IN
NORCO
DRAFT
01/11/2001.
OUT
PALM DESERT
ADOPTED
02/14/2002
05/22/2002
IN
PALM.SPRINGS
DRAFT
08/09/2006
OUT .
PERRIS
ADOPTED
02/13/2001
07/06/2001
IN
RANCHO MIRAGE
ADOPTED
10/18/2001
11/09/2001
IN
RIVERSIDE
DRAFT
09/11/2007
OUT
RIVERSIDE COUNTY
ADOPTED
10/04/2005
12/27/2005
IN
SAN JACINTO
ADOPTED
02/08/2007
IN
TEMECULA
ADOPTED
10/08/2002
12/03/2002
IN
*COMPLIANCE: SC indicates Self Certification pursuant to Government Code Section 65585.1; NA indicates
element is not due pursuant to Government Code Section 65361(d) General Plan Extension.
f
COUNTY/ CITY
HOUSING ELEMENT COMPLIANCE REPORT
10/16/2007 1:19 pm
TYPE DATE ADOPTED
SACRAMENTO
CITRUS HEIGHTS
ELK GROVE
FOLSOM
GALT
ISLETON
RANCHO CORDOVA
SACRAMENTO
SACRAMENTO COUNTY
SAN BENITO
HOLLISTER
SAN BENITO COUNTY
SAN JUAN BAUTISTA
Page 16 of 24
REVIEWED COMPLIANCE *
ADOPTED
11/13/2002
05/30/2063
IN
ADOPTED
09/17/2003
09/26/2003
IN
ADOPTED
06125/2002
09/26/2002
IN
ADOPTED
06/05/2003
09/15/2003
IN
DRAFT
08/28/2007
OUT
ADOPTED
06/26/2006
08/29/2006
IN
ADOPTED
06/10/2003
09/09/2003
IN
ADOPTED
12/08/2004
12/28/2004
IN
DRAFT
03/30/2004
OUT
ADOPTED ..
04/05/2005
06/01/2005
IN
DRAFT
07/31/2007
OUT
* COMPLIANCE: SC indicates Self Certification pursuant to Government Code Section 65585.1; NA indicates
element is not due pursuant to Government Code Section 65361(d) General Plan Extension.
HOUSING ELEMENT COMPLIANCE REPORT
10/16/2007 1:19 pm
COUNTY/ CITY
TYPE
DATE ADOPTED
SAN BERNARDINO
07/26/2000
IN
ADELANTO
DRAFT
12/21/2001
APPLE VALLEY.
ADOPTED
06/27/1000
BARSTOW
ADOPTED
06/05/2000
BIG BEAR LAKE
ADOPTED
02/11/2002
CHINO
ADOPTED
09/18/2001
CHINO HILLS
ADOPTED
08/14/1007
COLTON
ADOPTED
08/06/2002
FONTANA
ADOPTED
IN
GRAND TERRACE
DRAFT
01/17/2003
HESPERIA
ADOPTED
08/07/2002
HIGHLAND
ADOPTED
09/25/2001
LOMA LINDA
ADOPTED
07/15/2006
MONTCLAIR
ADOPTED
06 /19/1002
NEEDLES
DRAFT
OUT
ONTARIO
ADOPTED
12/04/2001
RANCHO CUCAMONGA
ADOPTED
01/24/2002
REDLANDS
ADOPTED
10/15/2002
RIALTO
ADOPTED
03/06/2001
SAN BERNARDINO
ADOPTED
07/07/2003
SAN BERNARDINO COUNTY
ADOPTED
03113/2007
TWENTYNINE PALMS
ADOPTED
06/27/2000
UPLAND
ADOPTED
08113/2001
VICTORVILLE
ADOPTED
04/17/2001
YUCAIPA
ADOPTED
01/22/2001
YUCCA VALLEY
ADOPTED
090/2000
Page IT of 24
REVIEWED COMPLIANCE
06/01/2001
OUT
11/02/2000
IN
07/26/2000
IN
03/19/2002
IN
12/21/2001
IN
IN REVIEW
11/26/2002
IN
01/03/2007
IN
06/10/2005
OUT
11/08/2002
IN
02/01/2002
IN
05/22/2007
OUT
09/26/2002
OUT
12/28/2004
OUT
03/26/2002
IN
08/09/2002
IN
01/17/2003
IN
06/25/2001
IN
09/10/2003
IN
06/05/2007
IN
09/15/2000
IN
11/21/2001
IN
06/25/2001
IN
04/30/2001
OUT
11102/2000
IN
' COMPLIANCE: SC indicates Self Certification pursuant to Government Code Section 65585.1; NA indicates
element is not due pursuant to Government Code Section 65361(d) General Plan Extension. .1.
Page 18 4f.24
HOUSING ELEMENT COMPLIANCE REPORT
10/16/2007 1:19 pm
COUNTY/ CITY
TYPE
DATE ADOPTED
REVIEWED
COMPLIANCE
SAN DIEGO
CARLSBAD
ADOPTED
OUT
CHULA VISTA
ADOPTED
10/24/2006
01/03/2007
IN
CORONADO
DRAFT
05/11/2007
OUT
DEL MAR
ADOPTED
OUT
EL CAJON
ADOPTED
03/27/2007
08/22/2007
IN
ENCINITAS
DRAFT
10/08/2007
OUT
.ESCONDIDO
ADOPTED
12114/2005
03/08/2006
IN
IMPERIAL BEACH
DRAFT
11/22/2006
OUT
LA MESA
ADOPTED
06/28/2005
08/10/2005
IN
LEMON GROVE
ADOPTED
07/11/2006
01/03/2007
IN
NATIONAL CITY
DRAFT
IN REVIEW
OCEANSIDE
DRAFT
11/15/2005
OUT
POWAY
DRAFT
02116/2006
OUT
SAN DIEGO
ADOPTED
12105/2006
02/05/2007
IN
SAN DIEGO COUNTY
DRAFT
07/19/2007
OUT
SAN MARCOS
ADOPTED
12113/2005
03/10/2006
IN
SANTEE .
DRAFT
JIN REVIEW
SOLANA BEACH
ADOPTED
08/24/2006
01/10/2007.
IN
VISTA
DRAFT
07/10/2007
OUT
_ SAN FRANCISCO
SAN FRANCISCO
ADOPTED
09/28/2004
10/28/2004
IN
SAN JOAQUIN , -
ESCALON
ADOPTED
07/19/2004
09/15/2004
IN
LATHROP
ADOPTED
06/15/2004
08/13/2004
IN
LODI
ADOPTED
10/20/2004
12/2212004
IN
MANTECA
ADOPTED
08/02/2004
11/02/2004
IN
RIPON
ADOPTED
09/19/2006
02116/2007
OUT
SAN JOAQUIN COUNTY
ADOPTED
08/10/2004
11/24/2004
IN
STOCKTON
ADOPTED
09/14/2004
11/24/2004
IN
TRACY.
ADOPTED
07/20/2006
10/31/2006
OUT
COMPLIANCE: SC indicates Self Certification pursuant to Government Code Section 65585.1; NA indicates
element is not due pursuant to Government Code Section 65361(d) General Plan Extension.
P
Page 19 of 24
HOUSING ELEMENT COMPLIANCE REPORT
10/1612007 1:19 pm
COUNTY/ CITY
TYPE
DATE ADOPTED
REVIEWED.
COMPLIANCE
SAN LUIS OBISPO
ARROYO GRANDE
ADOPTED
03/08/2005
06/22/2005
IN
ATASCADERO
DRAFT
03/04/2005
OUT
GROVER BEACH
ADOPTED
12/15/2003
04102/2004
OUT
MORRO BAY
ADOPTED
10/25/2004
.12/22/2004
IN
PASO ROBLES
ADOPTED
12/07/2004
12/2912004
IN
PISMO BEACH
ADOPTED
OUT .
SAN LUIS OBISPO
ADOPTED
12/14/2004
12/22/2004
IN
SAN LUIS OBISPO CO.
ADOPTED
07/20/2004
08120/2004.
IN
SAN MATEO
ATHERTON
ADOPTED
11/20/2002
04/14 /2003
OUT
BELMONT
ADOPTED
08/2712002
10/16/2002
IN
BRISBANE
ADOPTED
10/15/2002
12/1312002
IN
BURLINGAME
ADOPTED
07/01/2002
09/1112002
IN
, COLMA
ADOPTED
04/1412004
05124/2004
IN
DALY CITY
ADOPTED
11/0812004
12/0312004
IN
EAST PALO ALTO
ADOPTED
12/18/2001
05/22/2002
N
FOSTER CITY
ADOPTED
12/03/2001
03106/2002
IN
HALF MOON BAY
ADOPTED
OUT
HILLSBOROUGH
ADOPTED
07/0812002
10/17/2002
IN
MENLO PARK
ADOPTED
OUT
MILLBRAE
DRAFT
05/12/2005
OUT
PACIFICA
DRAFT
05/31/2005
OUT.
PORTOLA VALLEY
DRAFT
06/29/2004
OUT
REDWOOD CITY
DRAFT
03 /0412004
OUT
SAN BRUNO
ADOPTED
04/08/2003
05/0812003
IN
SAN CARLOS
ADOPTED
12/1012001
0312612002
IN
SAN MATEO
ADOPTED
05/06/2002
08/26/2002
IN
SAN MATEO COUNTY
ADOPTED
09/2912004
IN
SOUTH SAN FRANCISCO
ADOPTED
12/11/2002
0311812003
IN
WOODSIDE
ADOPTED
04/22/2003
07123/2003
IN
* COMPLIANCE: SC indicates Self Certification pursuant to Government Code Section 65585.1; NA indicates
element is not due pursuant to Govemment Code Section 65361(d) General Plan Extension.
. COMPLIANCE: SC indicates Self Certification pursuant to Government Code Section 65585.1; NA indicates .
element is not due pursuant to Government Code Section 65361(d) General Plan Extension.
Page 20 of 24
HOUSING ELEMENT COMPLIANCE REPORT
10116/2007.
1:19 pm
COUNTY/ CITY
TYPE
DATE ADOPTED
REVIEWED
COMPLIANCE'
SANTA BARBARA
BUELLTON
ADOPTED'
06/10/2004
12/22/2004
IN
CARPINTERIA
ADOPTED
0312212004
07/22/2004
IN
GOLETA
ADOPTED
11/01/2006
03/19/2007
OUT
GUADALUPE
ADOPTED
06/01/2004
07/09/2004
IN
LOMPOC
ADOPTED
11/18/2003
02/1912004
IN
SANTA BARBARA
ADOPTED
08110/2004
09/28/2004
IN
SANTA BARBARA COUNTY
ADOPTED
05/09/2006
08/020006
IN
SANTA MARIA
ADOPTED
12/19/2006
02121/2007
IN
SOLVANG
ADOPTED
04/24 /2006
05/19/2006
IN
SANTA CLARA
CAMPBELL
ADOPTED
11/20/2001
03/04/2002
IN
CUPERTINO
ADOPTED
11/15/2005
08123/2006
IN
GILROY
DRAFT
12/19/2003
OUT
LOS ALTOS
ADOPTED
03/1212002
06/1812002
IN
LOS ALTOS HILLS
ADOPTED
01/15/2004
04/20/2004
IN
LOS GATOS
ADOPTED
11/03/2003
02/26/2004
IN
MILPITAS
ADOPTED
10/22/2002
12/02/2002
I7
MONTE SERENO
ADOPTED
12/17/2002
01/28/2003
IN
MORGAN HILL
ADOPTED
07/19/2006
11/20/2006
IN
MOUNTAIN VIEW
ADOPTED
12/10/2002
01/03/2003
IN
PALO ALTO
ADOPTED
12/02/2002
05/23/2003
IN
SAN JOSE
ADOPTED
04/15/2003
06/24/2003
IN
SANTA CLARA
ADOPTED
07/23/2002
08/14 /2002
IN
SANTA CLARA COUNTY
ADOPTED.
03/25/2003
11/05/2004
IN
SARATOGA
ADOPTED
06/19/2002
08/01/2002
IN
SUNNYVALE
ADOPTED
01/08/2002
05/0812002
IN
SANTA CRUZ
CAPITOLA
ADOPTED
0312512004
05/07/2004
IN
SANTA CRUZ
ADOPTED
10/28/2003
11/10/2003
IN
SANTA CRUZ COUNTY
ADOPTED
11/07/2006
12/120006
IN
SCOTTS VALLEY
DRAFT
12129/2006
OUT
WATSONVILLE
ADOPTED
08112/2003
09/26/2003
IN
. COMPLIANCE: SC indicates Self Certification pursuant to Government Code Section 65585.1; NA indicates .
element is not due pursuant to Government Code Section 65361(d) General Plan Extension.
* COMPLIANCE: SC indicates Self Certification pursuant to Government Code Section 65585.1; NA indicates
element is not due pursuant to Government Code Section 65361(d) General Plan Extension.
�x
Page 21 of 24
HOUSING ELEMENT COMPLIANCE REPORT
10/16/2007
1:19 pm
COUNTY/ CITY
TYPE
DATE ADOPTED
REVIEWED
COMPLIANCE
SHASTA
ANDERSON
ADOPTED
1210212003
12129/2003
IN
REDDING
ADOPTED
11/16/2004
12110/2004
IN
SHASTA COUNTY .
ADOPTED
09/21/2004
10/21/2004
IN
SHASTA LAKE
ADOPTED
09/07/2004
12121/2004
IN
SIERRA
LOYALTON
DRAFT
IN REVIEW
SIERRA COUNTY
ADOPTED
09/05/2006
01/03/2007
IN
SISKIYOU
DORRIS
ADOPTED
04/03/2006
07/18/2006
IN
DUNSMUIR
DRAFT
03/27/2006
IN
ETNA
ADOPTED
05/17/2004
06/14/2004
IN
FORT JONES
ADOPTED
05/10/2004
04/09 /2004
IN
MONTAGUE
ADOPTED.
03/29/2004
06/2412004
OUT
MOUNT SHASTA
ADOPTED
05/23/2005
09/23/2005
IN,
SISKIYOU COUNTY
ADOPTED
05/18/2004
05/27/2004
IN
TULELAKE
ADOPTED
07/19/2004
09/03/2004
IN
WEED
ADOPTED
03/25/2004,
04/27/2004
IN
YREKA
ADOPTED
12118/2003
01/29/2004,
IN
SOLANO
BENICIA
ADOPTED
05/20/2003
07/31/2003
IN
DIXON
ADOPTED
10/22/2002
10/30/2002
IN
FAIRFIELD
ADOPTED
10/16/2001
09/14/2007
IN
RIO VISTA
ADOPTED
01%19/2006
04/24/2006
IN
SOLANO COUNTY.
ADOPTED
10/11/2005
01/25/2006
OUT
SUISUN CITY
ADOPTED
02115/2005
04/07/2005
IN
VACAVILLE
ADOPTED
10/28/2003
01/06/2004
IN
VALLEJO
ADOPTED
01/16/2004
IN
* COMPLIANCE: SC indicates Self Certification pursuant to Government Code Section 65585.1; NA indicates
element is not due pursuant to Government Code Section 65361(d) General Plan Extension.
�x
IJ�:Ili4�1
CORNING
ADOPTED
05/24/2005
Page 22 of 24
IN
HOUSING ELEMENT COMPLIANCE REPORT
ADOPTED
09/07/2004
12/07/2064
IN
TEHAMA
ADOPTED
03/09/2004
04/20/2004
10116/2007
1:19 pm
ADOPTED
08/16/2005
COUNTY/ CITY
TYPE
DATE ADOPTED
REVIEWED
COMPLIANCE
SONOMA
CLOVERDALE
ADOPTED
11/13/2002
04/11/2003
IN
COTATI
ADOPTED
07/23/2002
09/12/2003
IN
HEALDSBURG
ADOPTED
09/16/2002
12/19/2002
IN
PETALUMA
ADOPTED
10111/2002
IN
ROHNERT PARK
ADOPTED
08/28/2001
12/03/2001
IN
SANTA ROSA
DRAFT
06105/2007
IN
SEBASTOPOL
DRAFT
05/04/2007
IN
SONOMA
ADOPTED
01/21/2004
02/2012004
IN
SONOMA COUNTY
ADOPTED
12/18/2001
02/11/2002
IN
WINDSOR
ADOPTED
08/07/2002
11/13/2002
IN
STANISLAUS
CERES
ADOPTED
IN REVIEW
HUGHSON
ADOPTED
06/10/2004
67/15/2004
IN
MODESTO
ADOPTED
04/27/2004
05/11/2004
IN
NEWMAN
ADOPTED
12/09/2003
04/02/2004
IN
OAKDALE
ADOPTED
05117/2004
06/22/2004
IN
PATTERSON
ADOPTED
09/07/2004
1 V24/2004
IN
RIVERBANK
ADOPTED
12/26/2004
12130/2064
IN
STANISLAUS COUNTY
ADOPTED
12/16/2003
03/26/2004
IN
TURLOCK
ADOPTED
10/14/2003
12/16/2003
IN
WATERFORD
DRAFT
01/14/2005
OUT
SUTTER
LIVE OAK
ADOPTED
12/21/2005
02/07/2006
IN
SUTTER COUNTY
ADOPTED
09/28/2004
12/14/2004
IN
YUBA CITY
ADOPTED
06/17/2003
09110 /2003
IN
IJ�:Ili4�1
CORNING
ADOPTED
05/24/2005
07/08/2005
IN
RED BLUFF
ADOPTED
09/07/2004
12/07/2064
IN
TEHAMA
ADOPTED
03/09/2004
04/20/2004
IN
TEHAMA COUNTY
ADOPTED
08/16/2005
12/06/2065
IN
' COMPLIANCE: SC indicates Self Certification pursuant to Government Code Section 65585.1; NA indicates
element is not due pursuant to Government Code Section 65361(d) General Plan Extension.
A,
COUNTY/ CITY
TRINITY
TRINITY COUNTY
HOUSING ELEMENT COMPLIANCE REPORT
10/16/2007 1:19 pm
TYPE
ADOPTED
Page 23 of 24
_ 1
DATE ADOPTED REVIEWED COMPLIANCE
02[02/2004 04116/2004 IN
TULARE
DINUBA
ADOPTED
12/14/2004
12/30/2004
IN
EXETER
ADOPTED
01/11/2005
.06/09/2005
OUT
FARMERSVILLE
ADOPTED
03/14/2005
06/10/2005
IN
LINDSAY
ADOPTED
09/28/2004
10/20/2004
IN
PORTERVILLE
ADOPTED
03/16/2004
07/09/2004
IN
TULARE
ADOPTED
12/16/2003
01/27 /2005
IN
TULARE COUNTY
ADOPTED
12/09/2003
04/27/2004
IN
VISALIA
ADOPTED
12/19/2005
03/27/2006
IN
WOODLAKE
ADOPTED
10/25/2004
12/0312004
IN
TUOLUMNE
SONORA
ADOPTED
03101/2004
03/17/2004
IN
TUOLUMNE COUNTY
ADOPTED
12/09/2003
12/16/2003
IN
VENTURA
CAMARILLO
ADOPTED
11/19/2003
12/16/2003
IN
FILLMORE
ADOPTED
05/13/2003
07/24/2003
IN
MOORPARK
.ADOPTED
12/19/2001
03108/2002
IN
OJAI
ADOPTED
01/22/2002
05/14/2002
IN
OXNARD
ADOPTED
12/19/2000
05/10/2001
IN
PORT HUENEME
ADOPTED
05/02/2001
09/06/2001
IN
SAN BUENAVENTURA
ADOPTED
04 /20/2004
07/30/2004
IN
SANTA PAULA
ADOPTED
08/19/2002
09/20/2002`
IN
SIMI VALLEY
ADOPTED
11/19/2001
03/13/2002
IN
THOUSAND OAKS
ADOPTED
12/12/2000
03/30/2001
IN
VENTURA COUNTY
ADOPTED
06/19/2001
1.0/18/2001
IN
" COMPLIANCE: $C indicates Self Certification pursuant to Government Code Section 65585.1; NA indicates
element is not due pursuant to Government Code Section 65361(d) General Plan Extension:
q %+
COUNTY/ CITY
YOLO
DAVIS
WESTSACRAMENTO
WINTERS
WOODLAND
YOLO COUNTY
YUBA
MARYSVILLE
WHEATLAND
YUBA COUNTY
ADOPTED 04101/2003
ADOPTED 01127/2005
ADOPTED
07101/2003 IN
06/2712005 'IN
12130/2004 IN
" COMPLIANCE: SC indicates Self Certification pursuant to Government Code Section 65585.1; NA indicates
element is not due pursuant to Government Code Section 65361(d) General Plan Extension.
1
Page 24 of 24
HOUSING ELEMENT COMPLIANCE REPORT
10/16/2007 1:19 pm
TYPE
DATE ADOPTED
REVIEWED
COMPLIANCE
ADOPTED
07120/2004
10120/2004
IN
ADOPTED
0311212003
04103/2003
IN
ADOPTED
12114/2004
03/23/2005
IN
ADOPTED
1010712003
10/23/2003
IN
ADOPTED
0312512003
05115/2003
IN
ADOPTED 04101/2003
ADOPTED 01127/2005
ADOPTED
07101/2003 IN
06/2712005 'IN
12130/2004 IN
" COMPLIANCE: SC indicates Self Certification pursuant to Government Code Section 65585.1; NA indicates
element is not due pursuant to Government Code Section 65361(d) General Plan Extension.
1
EXHIBIT IS
ersTF nF Cer.ranaane ansrr4R'.ss. raeracanaTp. +n Bnrrslvr. anFt9ty
DEPARTMENT OF HOUSING AND COMMUNITY DEVELOPMENT
Division of Housing Policy Development
]soo 1bW Shed, Srlx430
P. O. Box 951053
sa,aw oo, CA 94252 -2053
(916) 323 -3177
FAX (916) 327 -2643
June 20, 2005
Mr. Homer "Bludau, City Manager
City of Newport Beach
3300 Newport Boulevard
Newport Beach, CA 92663
Dear Mr. Bludau:
RE: Review of the City of Newport Beach's Adopted Housing Element
Thank you for submitting Newport Beach's housing element, as amended and adopted by the City
Council on April 12, 2005 and received for review on May 5, 2005. Pursuant to Government Code
Section 65585(h), the Department is required to review adopted housing elements and report the
findings to the locality. A series of telephone conversations and e-mail exchanges with
Mr. Jaime Murillo, Assistant Planner, facilitated the review.
The Department's February 25, 2005 review found the draft amendments, which clarified and
corrected references to household income levels and municipal code sections, would not affect the
compliance status of the City's housing element. Given these amendments were formally adopted
by the City Council, the Department is pleased to find the housing element remains in compliance
with State housing element law (Article 10.6 of the Government Code).
The Department's February 2005 review also required an update outlining the progress in meeting
conditional compliance requirements, specifically the status of the approval process for the
Avocado/MacArthur site, along with a description of the steps the City is taking to make a portion of
the 45.2 acre Banning Ranch site available for residential development. This report, received on
March 14, 2005, indicates the Banning Ranch site remains zoned for multifamily uses,, however, no
development applications have yet been submitted. The report also indicates the necessW general
plan amendment, rezoning, and environmental analysis for the Avooado/MacArthur site has been
initiated by the City Council (pursuant to Program 3.2.3). However, the project is currently on -hold
pending the outcome of negotiations between the City and the property owner. According to the
City's status report, negotiations are expected to be completed by October 2005.. Depending on .
negotiation results, the City acknowledges it may have to identify an alternative site to remain in
compliance with the "adequate sites" statutory requirements for lower- income households.
Therefore, the Department's finding of compliance remains conditioned on the City ensuring the
supply of appropriately zoned sites is adequate to accommodate its regional housing need for lower -
income households. If the City's October 2005 annual report, as required by Government Code
Section 65400, reveals the Avocado/MacArthur site is not available for multifamily development
and an alternative site has not been identified, the element will no longer comply with the "adequate
Mr. Homer Bludau, City Manager
Page 2
sites" statutory requirement and will necessitate immediate amendment to provide the necessary
sites. Any alternative site must be suitable, available, and appropriately zoned to encourage and
facilitate the development of housing for lower- income households.
Since the City of Newport Beach's adopted housing element is in compliance, it has met one of
the threshold requirements for an innovative new program that rewards local governments for
approving affordable workforce housing. The Workforce Housing Program, funded by
Proposition 46, provides grant funds to eligible local governments for every qualifying unit
permitted, beginning calendar year 2005. Grant awards can be used to fund any capital asset
project, such as transportation or park improvements. More specific information about the
program is available on the Department's website at http://www.hcdcaizo It is
important to note that in addition to housing element compliance, the City must submit an annual
report on the implementation of the housing element in accordance with Government Code
Section 65400, by December 31, 2005 to be eligible for funding.
The Department wishes the City of Newport Beach continued success in implementing its housing,
land -use, and development assistance programs, and looks forward to receiving the City's 2005
general plan implementation progress report. If the Department can provide any additional
assistance in implementing the City's housing element, please contact Don Thomas, of ourstaff, at
(916) 445 -5854.
Sincerely,
Cathy reswell
Deputy hector
cc: Patricia Temple, Planning Director, City of Newport Beach
Jaime Murillo, Assistant Planner, City of Newport Beach
EXHIBIT C
STATE DF PSI IFORNIA- 911SINFSS TRANSPORTATION AND NOIrS 1 AOWGy AMU) 4CNWAR]FNFCCFR f:mramnr
DEPARTMENT OF HOUSING AND COMMUNITY DEVELOPMENT
Division of Housing Policy Development
1800 Third Street. SU to 430
P. O. Sm 952053
Secmmenfi. CA 94252 -2053
(918) 3233177
FAX (918) 327 -2843 .
November 2, 2006
Mr. Homer Bludau, City Manager
City of Newport Beach
3300 Newport Boulevard
Newport Beach, CA 92658 -8915
Dear Mr. Bludau:
RE: Review of the City of Newport Beach's Revised Adopted Housing Element
Thank you for submitting Newport Beach's revised housing element, adopted by the City
Council on July 25, 2006 as part of a comprehensive general plan update. The element
was received for review on August 3, 2006. Pursuant to Government Code Section
65585(h), the Department is required to review adopted housing elements and report the
findings to the locality. A series of telephone conversations with Mr. Gregg Ramirez,
Senior Planner, facilitated the review. "A
As you know, the Department found Newport Beach's 2003 adopted housing element,
along with a subsequent revision in April 2005, in conditional compliance. The
Department's finding of compliance was contingent on the City's commitment to rezone
the Avocado /MacArthur site and continuing to encourage and facilitate development on
the Banning Ranch site. The revised element no longer proposes to rezone the
MacArthur site as a means to address the adequate sites statutory requirement. Also, the
element indicates the updated Land Use element is now prioritizing the retention of
Banning Ranch as open space. This is an especially critical point as the previously
adopted element relied on Banning Ranch to accommodate 406 multifamily units without
the need for a zone change or general plan amendment.
Instead, the adopted element now includes a general land inventory which focuses on
potential housing opportunities in the John Wayne Airport, Banning Ranch, Newport
Center, Mariners' Mile, and Balboa Peninsula areas. The element, however, only
contains general descriptions and potential dwelling unit capacity figures for those areas
(described on pages 5 -34 through 5-49). The element does not contain the necessary
information and analysis to determine which specific sites are suitable and available to
accommodate the City's remaining housing need within the current planning period. As a
result, the element no longer identifies adequate sites, and further, requires revisions to
analyze potential governmental constraints. As discussed with Mr. Ramirez, the following
specific revisions are needed to bring the element into compliance with State housing
element law (Article 10.6.of the Government Code).
<s:
Mr. Homer Bludau, City Manager
Page 2
Include an inventory of land suitable for residential development, including vacant sites
and sites having the potential for redevelopment, and an analysis of the relationship of.
zoning and public facilities and services to these sites (Section 65583(a)(3)):. The
inventory of land suitable for residential development shall be used to identify sites that
can be developed for housing within the planning period (Section 65583.2).
The element must be expanded to include a complete land inventory with specific site
descriptions and analysis. The inventory and analysis should include the following:
• A parcel specific listing of sites describing general plan designation, zoning,
maximum density, and parcel size.
• A description of existing uses on the identified non - vacant sites.
• A description of the impact of parcel size on development feasibility, capacity, and
affordability.
• An analysis that demonstrates how the City calculated its projected buildout
capacities for the identified sites. This analysis should evaluate the impact of the
City's land -use controls and site improvement requirements on buildout capacity
estimates. For example, the City must consider the imposition of maximum lot
coverage requirements, open space, parking, and floor area ratios (FARs), when
establishing its realistic unit capacity, rather than relying on a theoretical number
based on maximum buildout.
• A general analysis of the existing infrastructure capacity (i.e., water and sewer),
including access to distribution facilities along with an indication of whether capacity
is, or will be, sufficient to serve the identified sites within the planning period.
• A general description and analysis of known environmental constraints.
• Identification of which zones and densities can accommodate the City's lower -
income housing need (see Item 2, page 2 of the Department's AB 2348 technical
assistance paper).
• 'A map or other method for identifying specific sites in the inventory
For example, the Land Use element now prioritizes Banning Ranch as open space, yet
the housing element continues to identify it as a potential housing site (1,375 units).
Table H30 indicates the site will have both Open Space (OS) and Residential Village
(RV) the General Plan designations, while zoned Planned Community (PC). Therefore,
the element must clearly describe how much of the 465 acre site will be designated
specifically for residential uses, including timing of adoption of the zoning'that can
accommodate residential development. The element should also explain how1he future
master plan /specific plan, including development standards, acres of the various
residential components, density levels, and design guidelines will allow residential
development this planning period.
Mixed -Use: Table H30 indicates several areas have mixed -use development potential.
Based on the general land -use descriptions in the element, it appears a large
percentage of the Airport, Newport Center, Mariners' Mile, and Balboa Peninsula, areas
are builtout.
Mr. Homer Bludau, City Manager
Page 3
Therefore, the element must demonstrate that mixed -use development or stand alone
residential uses are realistic and viable development strategies for those sites with active
uses. For example, the element should describe the condition or age of existing
development and describe the potential for such uses to be discontinued and replaced
with housing, or provide a clear indication of whether housing could be added to the
exisfing use (such as adding second story residential to ground floor retail).
Also, the analysis should evaluate whether the redevelopment or intensification of a site
would require lot consolidation to allow additional residential development. The element
should further describe the City's experience in facilitating mixed -use development of
non - residentially zoned sites, including current market conditions, redevelopmment trends
(i.e., high land and.construction costs in concert with limited supplies of avaifable and
developable land resources could promote the market conditions necessary to facilitate
more compact and efficient residential development) and incentives and policies to
encourage the development of underutilized and /or mixed -use sites. -
To assist the City in addressing the adequate sites requirement, the Department has
provided Mr. Ramirez the AB 2348 technical assistance memo (via the Department's
website).
Given the City's reliance on mixed -use development to accommodate its remaining
need, the element should also include strong programs and policies to facilitate such
development.
2. Analyze potential and actual governmental constraints upon the maintenance,
improvement, and development of housing for all income levels. The analysis shall also
demonstrate local efforts to remove governmental constraints that hinder the locality
from meeting its share of the regional housing need in accordance with Section 65584
(Section 65583(a)(4)).
Land -Use Controls: table H30 lists several zoning designations that are not
described or analyzed in the element's governmental controls section (Table H31).
The element should describe /define the applicable development standards and,
permitted and conditional residential uses allowed in each of these zones (e.g., MU,
RV PC, SP, RSC -MM, APF). The element should also describe and analyze pw
implementation of allowed density, building setbacks, height provisions, parking and
open space requirements help to facilitate and encourage housing for all income
groups. Should the requisite analysis determine the City's land -use controls are
impeding residential development, the element should describe efforts to mitigate
and /or remove any identified constraints. Y
Measure "S ": The Measure, approved in November 2000, establishes threshold
residential density and /or land -use intensity increases that trigger voter approval.
According to the adopted element, this Measure will not impact the City's ability to
accommodate its share of the regional housing need (pg 5 -54). However, the
element must be expanded to Include a more detailed description and evaluation of
Measure "S" impacts on the cost and supply of new residential development.
Mr. Homer Bludau, City Manager
Page 4
For example, the element should explain how Measure "S" is Implemented, including
how the "vested rights" provisions are applied and whether any exception prdVlsions
exist for affordable housing or housing needed to meet the City's Regional Housing
Needs Assessment (RHNA).
Requiring "major" general plan amendments to be decided on by the local electorate
could be costly and result in significant fiscals impacts to individual development
projects. The element should clarify if a project applicant is 100 percent responsible
for election costs and explain the methodology for determining these costs.
Also, pursuant to Government Code Section 65583(c)((3) the element must include
a program action that specifically addresses, and where appropriate, removes any
identified residential development constraints associated with Measure S. This
would be in addition to Program 2:31 as this action only commits the City to
studying the impacts of major commercial and industrial projects on the existing
housing supply.
The Department hopes these comments are helpful and would be glad to assist the City in
addressing the above requirements. If you would like to schedule a technical assistance
meeting or site visit, please contact Don Thomas, of our staff, at (916) 445 -5854.
Sincerely,
Cathy . Creswell
Depu •Director
i A-
EXHIBIT D
STATE OF CALIFORNIA- 1i11SINEAS. TRANSP(1RipTION AND HO �CIN6 A N V pRNOLO SOHWAR]ENEC -C -ER C- mramnr
DEPARTMENT OF HOUSING AND COMMUNITY DEVELOPMENT
Division of Housing Policy Development
1900 ThN Street, Sui7e 430
P. O. Box 952053
Sacramento. CA 94252 -2053
(9 W) 323 -3177 ,
FAX (918) 327 -2843
September 10; 2007
Mr. Greg Ramirez, Senior Planner
City of Newport Beach
3300 Newport Boulevard
Newport Beach, CA 92658 -8915
Dear Mr. Ramirez:
RE: Review of the City of Newport Beach's Revised Housing Element
Thank you for submitting revisions to Newport Beach's housing element. Pursuant to
Government Code Section 65585(b), the Department is required to review draft housing
elements and report the findings to the locality. A series of telephone conversations with
you facilitated the review.
The revised adopted element addresses some of the findings described in the
Department's November,2, 2006 review. For example, the draft revisions indicateMlat
Measure "S" (Section 423 of the City Charter) will not impact the development of the sites
identified in the inventory (Table H -30 and Appendix 1-15) due to the increased densities/
intensities established as part of the recent comprehensive general plan update
(approved by the voters in November of 2006). Newport Beach should be diligent in
monitoring the potential impacts of Charter Section 423 as identified in Housing
Program 2,3.1. Should monitoring reveal that residential projects are being subjected to
the voter approval process, the City must take the appropriate steps (in a timely manner)
to remove governmental constraints and provide adequate sites. The revisions also
indicate the City is continuing to work on a comprehensive zoning ordinance update,
which when completed, will establish zoning designations consistent with the new land -
use designations established as part of the general plan update.
However, according to the revised element, the John Wayne Airport and Newport Center
areas offer the greatest residential development potential during the. remainder of the
planning period, through a variety of development strategies, including mixed -use, infill
and reuse. Therefore, as described in the Department's previous review, and discussed
with you, the element must demonstrate these strategies are realistic and viable such that
they can accommodate Newport Beach's remaining share of the regional housing need,
particularly for lower- income households. .
Mr. Greg Ramirez, Senior Planner
Page 2
Include an inventory of land suitable for residential development, including vacant sites
and sites having the potential for redevelopment, and an analysis of the relationship of
zoning and public facilities and services to these sites (Section 65583(a)(3)). The
inventory of land suitable for residential development shall be used to identify sites that
can Pe developed for housing within the planning period (Section 65583.2).
Given that most of the sites listed in Appendix H5 are developed with existing uses, the
element must be expanded to describe the condition and age of existing development
and describe the realistic potential for these uses to be discontinued and replaced with
housing this planning period. The expanded analysis should describe the City's
experience in facilitating redevelopment and mixed -use development of non -
residentially zoned sites, including current market conditions, and redevelopment
trends. Please refer to the Department's November 6, 2006 review.
Also, as discussed with you and described in the Department prior review, given the
City's strong reliance on a combination of mixed -use and redevelopment to
accommodate its remaining housing need, Policy H.2.3 must be complemented with
strong programs and implementation actions to facilitate such development (i.e.,
specific commitment to provide regulatory and /or financial incentives and promote the
development of underutilized and /or mixed -use sites). Under a separate cover,
examples of program implementation actions from other jurisdictions that have or are
currently relying on mixed use and recycling development strategies will be sent to you.
The element's analysis of the identified sites in the John Wayne Airport and Newport.
Centers areas must be expanded to include the following:
• A description of the impact of parcel size on development feasibility, capacity, and
affordability.
• An analysis that demonstrates mixed -use development or stand alone residential
uses are realistic and viable development strategies for those sites identified in
Appendix H5.
• An Indication whether redevelopment, recycling, or intensification of a site would
require lot consolidation to allow additional residential development.
+ A clarification that the noise and height restrictions set forth in the JWA Airport
Environs Land Use Plan (AELUP) (page 5 -35) will not impact the projected .
residential buildout capacities described in Table H30-for the identified sit6b listed in
Appendix H5.
2. Analyze potential and actual governmental constraints upon the maintenance,
improvement, and development of housing for all income levels. The analysis shall also
demonstrate local efforts to remove governmental constraints that hinder the locality
from meeting its share of the regional housing need in accordance with Section 65584
(Section 65583(a)(4)).
Mr. Greg Ramirez, Senior Planner
Page 3
.Land -Use Controls: According to the draft revisions, City staff is. currently working
on a comprehensive zoning ordinance update to address inconsistencies between
recently established general plan land use designations and outdated zoning
categories. As indicated in the element, the City Councii.adopted a resolution (as an
interim measure) that allows projects to be "reviewed" in spite of this general
plan /zoning inconsistency (page 5 -66). However, the element must be expanded to
demonstrate that in addition to `reviewing" residential projects, they can actually
receive final approval during the time period which the zoning ordinance is being
updated. In addition, the element should also include a timeline for completing the
zoning ordinance update. Finally, as indicated in the Department's prior review the
element must describe and analyze how implementation of allowed density, building
setbacks, height provisions, parking, and open space requirements of all newly
established zoning categories, particularly the Planned Community (PC) z&g, will
facilitate and encourage housing for all income groups. Should the requisite
analysis determine the City's new land -use controls will impede residential
development, the element must include a program to mitigate and /or remove any
identified constraints.
The Department.is committed to assisting the City of Newport Beach in bringing its housing
element into compliance and would be pleased to provide any additional assistance
necessary, including another meeting in Newport Beach. If you have any questions, or wish
to schedule a visit, please contact Don Thomas, of our staff, at (916) 445 -5854.
Sincerely,
y reswell
Depu !rector
.#.. .
EXHIBIT E
Final
MAjohnson\RHNA1RHNARnal.xls 07/12t2007
Page 1 .
Final Regional Housing Need Allocation Plan - Planning Period (January 1, 2006- June 30, 2014)
for Jurisdictions within the Six- County SCAG Region (approved by the SCAG Regional Council on July 12, 2007)
110 %Adjustment toward County Distribution
.
. %very low
%low
%
moderate
%above
moderate
Numberd
Number of
Number of
above
income
income
:Income
income
verq low
Number of low
moderate
moderate
.
City
households househdds househdds
househdds
Income
income --
income
income
SCAG Region
%total
households
households
households
households
Total
hnperial
Brawley city
23.7%
16.2%
18.1%
42.0%
100%
165,457
113,649
126,715
289,547
699,36E
Imperial
Calexico city
24.5%
16.6%
16.0%
429%
100%
757
511
4g4
1,326
3,088
Imperial
Calipatria city
24.6%
25.0%
16.2%
18.0%
15.7%
18.0%
43.5%
100%
100%
1
615
405
391
1,086
2,498
Imperial
a Centro city,
.43.0%
�
32
87
202
Hoitville city
24.8%
16.6%
16.1%
42,6%
100%
720
483
487
1,238
2,908
imperial
Imperial
Imperial
PO �Y
25.4%
16.7%
15.9%
420%
100%
95
22
59
199
Imperial
Westmorland city
26.6%
17.1%
18.3%
40.7%
100%
47(1
309
295
736
1,810
Imperial
Unincorporated
23,8%
18.5%
15.7%
44.1%
100%
61
42
113
24
-
Log Angeles
� � .Agoura Hills city
24.7%
� 26.6%
16.3%
15.7%
432%
100%
3,317
2,194
2,109
,1
5.806
13,427
Los Angeles
..
Alhambra city
24.5%
18.5%
15.5%
17.4%
39.4%
100%
29
29
16
19
43
110
Los Angeles
Arcadia city
25.5%
15.8%
16.8%
43.2%
100%
239
260
868
1,546
Las Angeles
Artesia city
25.2%
15.3%
17.1%
41.5%
100%
5499
340
368
892
2,149
Los Angeles
Avalon city
25.2%
15.0%
16.8%
.427%
100%
56
132
..
Loa Angeles
Azusa city
20.6%
15.4%
17.0%
42.8%
100%
37
22
25
64
148
Los Angeles
Baldwin Pori city
20.9%
154%
16.6%
43.3%
100%
184
115
124
323
745
Loa Angeles
Bell city
23.4%
10.9%
16.5%
43.1%
100%
186
.115
123
321
744
Los Angeles
Bell Gallons city
24.0%
10.9%
17.0%
44.7%
100%
11
21
47
Los Angeles
Be118ower city
24.7%
15.4%
18.5%
44.6%
100° /,
29
6
20
122
Los Angeles
Beverly Hills dh
2s.5%
16.6%
43.3%
100%
263
164
178
462
1,067
Los Angeles
Los Angeles
.
Bradbury city
Burbank
25.7%
16.2%
17.1%
17.6%
17.1%
40.7%
40.0%
100%
100%
111
9
71
6
77
8
178
14
436
Los Angeles
city
Calabasas city
25.0%
26A%
15.8%
18.9%
42.3%
100°/
947
597
642
11600
35
3,786
Los Angeles
Carson city
25.4%
16.5%
15.8%
17.8%
39.3%
100%
137
86
93
205
521
Los Angeles
Cerritos city
26.6%:
16.0%
16.9%
41.8%
100%
461
287
307
757
1.812
.
� Angeles
� Clermont city
25.6%
16.1%
117.0%
40.4%
100%
25
15
16
38
95
Los Angeles
.Commerce city
23,8%
15.9%
17.4%
15.9%
40.8%
100%
117
7q
80
187
467
Los Angeles
Compton city
23.5%
10.7%
44.4%
100%
15
10
10
28
64
Los Angeles
Covina city
25.1 %
15.8%
17.6%
44.1 %
100%
16
10
12
30
69
Los Angeles
Cudahy shy
23.5%
14.9%
16.9%
18.7%
422%
100%
336
211
226
564
1,337
44.9% 100%
Not There is a one unit rounding difference in some localities between
94
60
87
180
399
the
total housing
need and
the sum d
the 4 Income
In such cases, communities
may choose which.of the
income
it
groups.
categories will adjust by one unit to maintain consistency
with the approved total housing
need.
Final
MAjohnson\RHNA1RHNARnal.xls 07/12t2007
Page 1 .
Final Regional Housing Need Allocation Plan - Planning Period (January 1, 2006 - June 30, 2014).
for Jurisdictions within the Six - County SLAG Region (approved by the SCAG Regional Council on July 12, 2007)
% % above
%very low %low moderate moderate
Income income Income income
households households households households
0.6%
28.1%
25.0%
25.1%
24.1%
26.2%
24.4%
24.5%
25.7%
24.3%
24,1%
26.2%
26.5%
23.7%
33.3%
24.0%
23.9%
26.2°/6
26.7%
25.8%
24.9%
25.8%
25.6%
24.6%
24.8%
25.1%
24.2%
24.1%
24.4%
261%
15.8%'
16.4%
15.7%
15.9%
15.1%
16.1%
15.5%
15,7%
16.0%
15.3%
15.1%
16.5%
17.6%
14.8%
16.7%
15.4%
16.4%
167%
16.4%
16.0%
15.4%
15.9%
16.0%
15.5%
15.4%
15.6%
15.5%
15.5%
15.3%
16.5%
16.6%
16.8%
17.2%
16.8%
17.1%
16.8%
16.7°/6
17.0%
17.0%
17.1%
16.7%
16.8%
17.4%
17.6%
16.8%
16.7%
16.8%
16.4%
18.0%
18.1%
17.3%
18.9%
17.3%
17.1%
169%
165%
168%
17.1%
17.1%
16.4%
17.8%
17.9%
41.8%
40.3%
42.4%
41.9%
44.1%
41.1%
43,1%
42.8%
41.2%
43.8%
44.1%
39.9%
382%
44.6%
33.3%
43.8%
43.3%
39.1%
368%
40.9%
42.9%
41.0%
41.2%
43.0%
43.4%
42.5%
43.2%
43.3%
43.9%
39.6%
106%
109%
100%
100%
100%
100%
100%
100%
100%
100%
100%
100%
100%
100%
100%
100%
160%
left
190%
100%
100%
100%
100%
100%
100%
100%
100%
100%
100%
100%
100%
cos woes
Culver city
Number of
Las Angeles
Diamond Bar dry
.
Los Angeles
Downey city
Number of low
Los Angeles
Duarte city
Income
Los Angeles
El Monte city
Income
Los Angeles
EJ Segundo city
households
Las Angeles
Gardena city
Los Angeles
Glendale city
Los Angeles
Glendora city
Los Angeles
Hawailan Gardens city
Los Angeles
Hawthorne city
.
Los Angeles
Hermosa Beach city
Los Angeles
Hidden Hills city
Las Angeles
_ Huntington Park. city
Los Angeles
Industry city ,
Los Angeles
Inglewood qty
Los Angus
Irwindale city
Los Angeles
La Canada Flintddge city
Los Angeles
La Habra Heights city
Los Angeles
La Mirada city
Los Angeles
La Puente city
Los Angeles
Los Angeles
La Verne city
Lakewood city
Los Angus
Lancaster qty
Los Angeles
L.awndYe dry
`
Los Angeles
Lomita city
Los Angeles
Lang Beach qty
Las Angeles
Las Angeles qty
Los Angeles
Lynwood city
Los Angeles
Malibu city .
Las Angeles
Manhattan Beech cfry
% % above
%very low %low moderate moderate
Income income Income income
households households households households
0.6%
28.1%
25.0%
25.1%
24.1%
26.2%
24.4%
24.5%
25.7%
24.3%
24,1%
26.2%
26.5%
23.7%
33.3%
24.0%
23.9%
26.2°/6
26.7%
25.8%
24.9%
25.8%
25.6%
24.6%
24.8%
25.1%
24.2%
24.1%
24.4%
261%
15.8%'
16.4%
15.7%
15.9%
15.1%
16.1%
15.5%
15,7%
16.0%
15.3%
15.1%
16.5%
17.6%
14.8%
16.7%
15.4%
16.4%
167%
16.4%
16.0%
15.4%
15.9%
16.0%
15.5%
15.4%
15.6%
15.5%
15.5%
15.3%
16.5%
16.6%
16.8%
17.2%
16.8%
17.1%
16.8%
16.7°/6
17.0%
17.0%
17.1%
16.7%
16.8%
17.4%
17.6%
16.8%
16.7%
16.8%
16.4%
18.0%
18.1%
17.3%
18.9%
17.3%
17.1%
169%
165%
168%
17.1%
17.1%
16.4%
17.8%
17.9%
41.8%
40.3%
42.4%
41.9%
44.1%
41.1%
43,1%
42.8%
41.2%
43.8%
44.1%
39.9%
382%
44.6%
33.3%
43.8%
43.3%
39.1%
368%
40.9%
42.9%
41.0%
41.2%
43.0%
43.4%
42.5%
43.2%
43.3%
43.9%
39.6%
106%
109%
100%
100%
100%
100%
100%
100%
100%
100%
100%
100%
100%
100%
100%
100%
160%
left
190%
100%
100%
100%
100%
100%
100%
100%
100%
100%
100%
100%
100%
129
284
277
92
532
44
270
767
192
35
219
147
9
240
2
398
16
62
21
452
201
220
172
3.144
118
87
2.321
27.238
89
115
80
179
174
58
333
27
171
491
119
22
137
93
6
150
1
255
11
39
13
280
124
136
108
1.989
72
54
1,485
17,495
55
73
85
188
187
63
370
28
188
534
127
24
153
98
6
170
1
278
11
42
14
303
136
148
115
2,165
77
58
1,634
19,304
60
79
Note: There is a one unit rounding difference in some localities - t ' »a 160
between The total housin g need and the sum of the 4 income groups,
In such cases, communities may choose which of the Income categories it will adjust by one unit to maintain consistency with the approved total housing need
M,.Iohnson\RHNA\RHNAFinM.As
211
440
470
154
973
69
476
1,340
307
64
401
224
13
452
2
727
29
92
31
716
346
351
277
5.501
203
147
4,143
48,839
159
175
350
504
1.090
1,108,
367
2.208
168
1,105
3,131
744
145
910
562
34
1,013
6
1.6558
68
235
80
1,751
807
854
673
12,799
468
346
9,564
112,876
363
441
895
Final
07/12/2007
Page 2
Number of
Number of
Number of
above
very low
Number of low
moderate
moderate
Income
Income
Income
Income
households
households
households
households 7atal
129
284
277
92
532
44
270
767
192
35
219
147
9
240
2
398
16
62
21
452
201
220
172
3.144
118
87
2.321
27.238
89
115
80
179
174
58
333
27
171
491
119
22
137
93
6
150
1
255
11
39
13
280
124
136
108
1.989
72
54
1,485
17,495
55
73
85
188
187
63
370
28
188
534
127
24
153
98
6
170
1
278
11
42
14
303
136
148
115
2,165
77
58
1,634
19,304
60
79
Note: There is a one unit rounding difference in some localities - t ' »a 160
between The total housin g need and the sum of the 4 income groups,
In such cases, communities may choose which of the Income categories it will adjust by one unit to maintain consistency with the approved total housing need
M,.Iohnson\RHNA\RHNAFinM.As
211
440
470
154
973
69
476
1,340
307
64
401
224
13
452
2
727
29
92
31
716
346
351
277
5.501
203
147
4,143
48,839
159
175
350
504
1.090
1,108,
367
2.208
168
1,105
3,131
744
145
910
562
34
1,013
6
1.6558
68
235
80
1,751
807
854
673
12,799
468
346
9,564
112,876
363
441
895
Final
07/12/2007
Page 2
Page 3
Final Regional Housing Need Allocation Plan - Planning Period (January
1, 2006 - June
for Jurisdictions within the Six- County SCAG Region (approved by the SCAG
30; 2014)
Regional Council July
on
12,
2007)
%very low
%low
%
moderate
%above
mo�rate
Number of
. Number of
Number of
above
.
Income
Income
Income
income
Income
vary low
Number of low
moderate
moderate
Courtly
City
households
households
households
%,pid
income
households
Income
income
Income
Los Angeles
_
Maywood city
227%
households
households
households
Total
Los Angeles
g
Monrovia city
13.6%
18.2%
45.6% ,.
100%
5
3
4
10
22
Los Anger
Montebello city
251 %
15.5%
16.9%
425%
100%
142
88
96
241
567
Los Angeles
Monterey Park c'
eY rry
24.5%
24.6%
15.5%
16.9%
43.2%
100%
123 �
78
85
217
502
Los Angeles
Norwalk city
25.2%
15.5%
17.0%
43.0%
100%
280
177
194
490
1.141
Los Angeles
Palmdale city
25,0%
16,5%
18.7%
42.6%
100%
75
128
97
297
Los Angeles
Palos Vallee Estates city
26.4%
15.8%
16.9%
42.3%
100%
4.481
2,822
3.024
7.583
17,910
Las Angeles
Paramount city
24.4%
16,7%
15A%
18.1%
38.8%
100%
19
12
13
28
72
Los Angeles
9
Pasadena city
24,8%
15.8%
18.6%
43.7%
100%
248
166
168 . -
444
1,017
Los Angeles
Pico Rivera city
24.6%
15.7%
17.1%.
423%
100%
711
452
491
491
1215
2.889
Los Angeles
Pomona city
24.5%
15.5%
16.7%
429%
100%
211
134
381
855
Los Angeles
Rancho Palos Verdes city
26.7%
16.7%
16.8%
43.1%
100%
901
571
619
1,587
3,678
Los Angeles
Redondo Beach city
26.0%
16.2%
17.8%
38.9%
100%
16
10
11
23
60
Los Angeles
Rolling Hills city
27.3%
18.2%
17.3%
40,5%
100%
580
363
387
904
2234
Los Angeles
Roiling Hills Estates city
26.9%
15.4%
18.2%
19.2%
36.4%
100%
6
4
4
8
22
Los Angeles
Rosemead city
24.3%
15.3%
16.8%
38S0A
100%
7
4
5
10
26
.
Los Angeles
San Dimas city
tY
26.9%
15.1%
17.2%
43.6%
100%
180
119
131
40
780
Los Angeles
San Fernando city
24.7%
15,1%
16.7%
40.8%
100%
101
107
255
625
.
Los Angeles
San Gabriel d
city
24.9%
15A%
17.0%
43,4%
428%
100%
100%
62
62
42
109
251
.
Los Angeles
San Marino city
28.9%
15A%
19.2%
38.5%
100%
206
127
140
354
827
Los Angeles
Santa ClarBa c 8Y
26.0%
16.2%
17,3%
�
40.5%
100%
7
4
5
10
26
.
Loll Angeles
Los Angeles
Santa Fe Springs city
Santa Monica
25.0%
15.8%
16.7%
425%
100%
2.494
115
1,560
73
1,657
77
3.888
196
9,5%
480
city
24.8%
18.0%
17.2%
41.9%
100%
Los Angeles
Siena Madre city
26.1 %
15.9%
17.4%
164
106
114
277
692
Los Angeles
Signal HI8 city
26.3%
15.9%
16.7%
40.6%
100%
36
24
56
139
Los Angeles
South El Monte city
24.5%
15.0%
17.0%
42.0%
100%
56
35
37
g3
222
Los Angeles
.
South Gate city
24.5%
15.8%
43,5%
100%
49
30
89`
202
Las Angeles
Pasadena ally
25.7%
16.8%
43.9%
100%
322
198
218
576
1.313
Los Argieles
Temp
Temple ally
25.3%
.15.8%
17.0%
41.5%
100%
43
26
28
89
166
-
Los Angeles �
Torrance c 8Y
15.8%
16.8%
421 %
100%
249
158
165
418
997
Los Angeles
Vernon city
26.6%
16.0%
17.1%
41 A%
100%
468
292
312 .
756
1.828
Note: There is
a one urdt rounding
g difference in some localities
0.0%
between
0.0%
0.0%
0.0%
0%
p
0
0
0
In such case%
the told housing need and the sum d
communities may choose which of the Income
the 4 income
getups.
categories
it will adjust
by one unit to maintain consistency
whir the approved total housing
need,
Final
K jahnsoriMNAMNAFirtal.xls
07/1212007
Page 3
Final Regional Housing Need Allocation Plan -.Planning Period (January 1, 2006 - June 30, 2014)
for Jurisdictions Within the Six- County.SCAG Region (approved by the SCAG Regional Council on July 12, 2007)
Page 4
%very low
%low
%
moderate
%abovg
moderate
Number of
Number of
numuar or
above
income
Income
income
Income
very low
Number of low
moderate
moderate
County
City
households households
households
households
income
Income
Income
Income
Los Anger
... Walnut city
%total
households
households
households
households
.Total
Los Angeles
West Covina city,
26.1%
16.5%
.17.9%
38.5%
100%
153
105
232
587
Los Angeles.
West Hollywood city
25.6%
24.4%
15.8Yo
16.9%
41.7%
100%
881
388
8
417
1.026
2.461
Los Angeles
Westlake Village city
2 &9%
15.5%
'17.3%
16.9%
43.2%
100%
142
91
99
252
584
Los Angeles
Whittier c
city
17.3%
38.5%
100%
14
9
9
20'
52
Los Armes
..
Unincorporated
25.2%
15.7%
17.0%
42.1%
100%
225
140
151
375
892
Orange
Aliso Viejo city
25.2%
22.6%
15.9%
17.2%
41.7%
100%
14,425
9.073
9.816
23.862
57.176
Orange
Anaheim city
20.8%
18.0%
19.4%
40.0%
1110%
208
165
179
367
919
Orange
Brea city
21.5%
17.0%
19.7%
425%
100%
1.971
1.618
1,874
4.035
9.498
Ora
Buena Park city
21.0%
17.4%
18.7%
41.4%
100%
441
356
404
847
2.048
Orange
e
Costa Mesa city
21.0%
17.1%
19.5%
42.3 %.
100%
142
116
132
288
677
Orange
cypress; city
21.7%
17.2% .
17.5%
19.6%
42.294
100%
353
288
390
740
.1.882
Orange
Dana Point city
22.1%
17.6%
19.7%
41.0%
100%
98
78
89
185
450
Orange
Fountain Valley city
22.1%
17.7%
19.1%
19.7%
41.2%
100%
15
12
13
28
69
Orange
Fullerton city
20.8%
17.2%
19.7%
40.5%
1000/
103'
189
466
Orange
Garden Grove city
20.7%
17.1%
422%
100%
398
329
376
806
1.910
Orange
Huntington Beach city
21.7%
17.6%
19.6 %.
19.8%
425%
100%
. 118
96
110
238
560
orange
�
21.7%
18.0%,
20.0%
40.9%
40.8%
100%
484
389
414
855
2,092
Orange
LIrvine bra
La Habra city
20.7%
17.2%
19.5%
100%
7.795
6.408
7,139
14,378
35,660
Orange
La Palma city
25.0%
18.8%
18.8%
42.6%
37.5%
100%
100% -
53
44
50
110
258
Orange
Laguna Beach city
28 3%
18.7%
20.0%
40.0%
100°/
4
7
3
3
6
16
Orange
Laguna Hills city
25.0%
125%
25.0%
37.5%
100%
2
5
8
12
30
Orange.
Laguna Niguel city
224%
17.9%
19.9%
39.8%
100%
80'
1
2
3
8
Orange
Laguna Woods city.
1 &7%
17.2%
20.1%
44.0%
100%
25
64
. 71
141
355
Orange
Lake Forest city
20.7%
17.2%
20.7%
41.4%
100%
6
23
27
60
135
Orange
Los Alamitos city
220%
17.1%
19.5%
41.5%
100%
9
5
6
12
29
Orange
ton V
Mission Vejo city
228%
17.8%
19.8%
39.7%
100%
33
7
8
17
41
Orange
Newport Beach city
220%
18.0%
20.3%
39.7%
100%
392
28
29
59
147
.Orange
Orange city
21.4%
17.5%
19.8%
41.4%
100%
1.086
322
362
708
1.781
Orange
Placentia city
21.6%
17.5%
19.6%
41.2%
100%
21
887
1.004
2.102
5.079
Orange
Rancho Santa Margarita city
22.8%
17.9%
18:5%
39.8%
100%
28
17
18
40
98
Note: There is acne
unit rounding difference in soma localitl6s between
. 22
24
49
124
In
the
total housing
need and
the sum of
the 4 Income
groups.
.
such cases, communities may choose which of the Income categories it
will adjust
by one unit to maintain consistency ith the
oy
app roved
total housing
need.
Final
M:yohnson\RHNAWHNAFetal.xls
07/12/2007
Page 4
Final Regional Housing Need Allocation Plan - Planning Period (January 1, 2006 - June 30, 2014)
for Jurisdictions within the Six-County SCAG Region (approved by the SCAG Regional Council on'July 12, 2007)
Page 5
%very low
%low
%
. moderate
%above
Number of
Number of
V
above
.
income.
income
Income
moderate
income
very low
Number of low
moderate
moderate
County.
City
households households
households
households
%
income
Income
income
Income
Orange
San Clemente city,
households
households
households
households
Total
Orange
San Juan Capistrano city
21.6%
21.6 %
17.6%
19.9%
40.9%
100%
126
103
116
239
5884
Orange
Santa M
Ana city.
17.7%
19.8%
41.0%
100%
229
188
210
436
1.1162
Orange
Seal Beach city
20.5%
19.3%
1 &9%
19.6%
43.0%
100%
694,
574.
665
1.461
3.393
r...
Stanton city
1 &g%
17.5%
17.1%
21.1%
19.7%
421 %.
43A%
100%
100%
11
10
12
24
57
Orange
Tustin
108
93.
107
236
544
city
21.5%
17.2%
19.6%
41.6%
100%
512
410
Orange
Villa Park CRY
27.3%
18.2%
16.2%
36A%
100%
468
991
2,380
Orange
Westminster city
20.5%
17.1%
19.9%
42.5%
100%
3
30
2
2
.4
11
Orange
Yorba Linda city
22.80/6
18.2%
20.2%
39.0%
100%
460
25
29
63
147
.
Orange
Unincorporated
22.3%
18:1%
20.0%
39.6%
100%
1.777
371
412
796
2.039
Riverside
Banning CRY
22.7%
16.1%
18.4%
428%
100%
873
1.445
1,597
3.159
7.978
Riverside
Beaumont city
224%
16.2%
18.7%
42.7%
10W.
1.586
618
705
1.645.
3.841
Riverside.
Blythe city,
22.7%
16.5%
1 8.5%
423%
100%
177
1.146
1,320
3.019
7.071
Riverside
Cailmesa city
23.2%
'16.2%
18.40/6
422%
100%
528
128
141
329
778
Riverside
Canyon Lake city
2510%
17.0%
19.0%
3 &0%
100%
25
367
419
957
Riverside
Cathedral city
23.5%
16.3%
1 8.3%
420%
1oD%
782
17
18
39
1011
Riverside
Coachella city
22.5%
15.6%
1 &5%
43.50/6
100%
1.288
.542
609
1.397
3.329
Riverside
Corona city
24.8%
16.9%
18.5%
3 9.8%
1000/6
819
893
1.059
2.493
5.733
Riverside
Desert Hot Spdngs city
21.8%
15.8%
1 &90/
43.5%
100%
2.161
560
611
1.317
3.308
Riverside
Hemet city
22.1%
15.8%
1&5°/6
43.6%
100%
2,484
1.570
1.871
4.322
9.923
Riverside
Indian Wells city
24.8%
17A%
19A%
38.4%
100%
1.781
2.080
4.898
11,243
Riverside
Riverside
Indio city
La Ouinta city
,29.1%
24.6%
1 6.1%
18.1%
4270/6
100%
61
955
42
667
47
752
94
1.769.
244
4.143
78.7°/
18A%
40.2%
100%
1.085
724
798
Ride
Lake Elsinore city
.23.5%
1 6.5%
18.6%
41 A%
100%
1.311
1.741
4,327
Riverside
Moreno Valley city
242%
1 &6 %.
18.2%
41.0%
100%
921
1,041
2.316
5.580
Riverside
Murrista city
24.9%
16.9%
18.6%
39.6%
100%
1.806
1.568
1.238
1,362
3.068
7.474
Riverside
Norco city
24.9%
17.1%
19.60/6
39.4%
100%
1.067
1,171
2,497
6.303
Riverside
Palm Desert city
24.1%
1 6.5%
18.5%
40.9%
100%
236
1.105
162
759
177
374
949
Riverside
Palm Springs city
23.1%
16.2%
1 &6%
421%
100%
523
847
1,875
4.586
'
Riverside
Perris. city.
23.2%
1 &1%
18.0%
427%
100%
967
388
669
421
951
.2.261
Rn'a. R
Rancho Mirage city
24.3 %
16.8%
78.8%
40.1%
100%
781
748
1,778
4,163
Note: There is a one unit rounding dif(eredce in some localities between the total housing need and the sum of the 4' income groups.
539
603
1.285
3.208
In such cases. communides may choose which of the income categories
it will adjust by one unit to maintain consistency with the approved total housing need.
Final
M \Johnson \RHNA\RHNAFinal.xls
07/12/2007
Page 5
Final Regional Housing Need Allocation Plan - Planning Period (January 1, 2006 - June 30, 2014)
for Jurisdictions within the Six - County SCAG Region (approved by the SCAG Regional Council on JUN 12. 2007)
Bird Y,Yff
County
City
% %.above
% very low % low moderate moderate
income income income Income
households households households households
%total
Number d
very low
income
households
Number of low
Income ,
households.,
Number d
moderate
income
households
Number of
above
moderate
income
households
Total
Riverside
Riverside city
23.6%
16.4%
18.4%
41.5%
100%
2.687
1.866
2,099
4,728
71.381
Riverside
San Jacinto sty
225%
16.1%
18.3%
43.1%
100%
2,707
1.931
2,206
5.183
12,026
Riverside
Temecula
24.8%
17.0%
18.5%
39.7%
100%
1.014
693
757
1.622
4,085
Riverside
rpocityd
Unincorporated
23.70/6
16.40/6
18.5%
41.4%
100%
13.343
9.267
10A28
23,331
56,366
San Bernardino
Adelanto city
22.6%
16.0%
18.5%
429%
100%
1.908
1.344
1,561
3.610
8,422
San Bernardino
Apple Valley town.
23.6%
16.1%
18.9%
41.40/6
100%
912
627
736
1.611
3,887
San Bernardino
Barstow city
2270%
16.3%
18.8%
422%
100%
1.018
728
842
1,890
4.479
San Bernardino
Big Bear Lake city
22.8%
16.1%
19.3%
41.80/6
100%
113
80
96
207.
495
San Bernardo
Chino city
20.3%
18.9%
19.1%
39.8 %,
160%
739
513
581
1,212
3,045
San Bernardino
Chino Hills city
. 25.2%
17.3%
19.7%
37.8%
100%
262
180
205
393
1,040
San Bemmndlno
Colon city
23.1%
16.1%
18.7%
42.2%
100%
854
595
693
1,563
3,705
San Bernardino
Fontana city
23.9%
16.4%
18.8%
40.9%
100%
1,365
932
1,073
2,329
5,699
San Bernardino
Grand Terrace city
24.2%
16.9%
19.0%
39.9%
100%
80
55
63
131
329
San Bernardino
Hesperia city
23.5%
16.2%
'18.8%
41.6%
100%
2,135
1,469
1.707
3,784
9,094
San Bernardino
Highland city
23.3%
16.6%
19.0%
41.3%
100%
502
355
409
890
2,156
San Bernardino
Loma Linda city
23.1%
16.3%
18.9%
41.7%
100%
610
432
501
1.103
2,646
San Bernardino
Montclair city
23.5%
16.2%
19.0%
41.4%
100%
426
293
343
748
11810
San Bernardino
Needles city
21.2%
16.7%
19.7%
42.4%
100%
.14
11
13
28
67
San Bemardno
Ontarlo city
23.9%
18.2%
18.6%
41.3%
100%
1,828
1.243
1,425
3.165
7,662
San Bernardino
Random Cucamonga city
20.7%
16.8%
19.1.%
39.3%
100%
317
216
245
504
1,282
San Bernardino
Redands city
20.0%
16.5%
18.9%
40.60/6
100%
682
469
539
1,155
2,845
San Bernardino
Rialto city
23.7%
16.2%
114.8%
41.4%
100%
1,023
700
812
1,788
4,323
San Bernardino
San Bernardino city
22.4%
16.1%
19.0%
42.8%
100%
1,275
913
1,079
2,420
5.687
San Bernardino
Twen"ne Palms city
228%
15.6%
18.8%
428%
100%
702
480
578
1,317
3.078
San Bernardino
Upland city
23.9%
18.4%
19.2%
40,5%
100%
476
328
382
809
1,995
San Bernardino
. VictorNBe dry
22.9%
16.8%
18.9%
41.96A
100%
1.972
1.401
1.630
3.614
8,618
San Bernardino
Yucaipa city
23.3%
16.2%
19.0%
41.5 %.
100%
476
332
389
850
2,048
San Bernardino
Yucca Valley town
22.3%
15.9%
18.91Y.
42.9%
100%
580
399
474
1,076
2,510
San Bernardino
Unincorporated
23.3%
116.11%
18.9%
41.7%
100%
4,802
3,324
3,899
8,598
20,622
Venture
Camarillo city
21.8%
17.7%
20.6%
40.0%
100%
727
591
687
1,335
3,340
Ventura Fillmore city
20.8%
17.3%
20.5%
41.6%
100%
203
170
202
410
985
In such cases, communities may choose which of the income categories It Wit adfust by one unit to maintain consistency with the approved total housing need.
M:yohnson \RHNA \RHNAFinal.xls
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07/12/2007
Page 6
rl
. Final
MNohnson\RHNA1RHNAFinal.xls 07/12/2007
Page 7
Final Regional Housing Need Allocation Plan - Planning Period (January 1, 2006 - June 30,
for Jurisdictions within the Six - County SCAG Region
2014)
(approved by the SCAG Regional Council on July 12, 2007)
v:.�wxw
YYry
% %��
%very low. %low moderate moderate Number of
Number of
Number of
above
Courtly
very low
Income income Income income ' income
Number of low
moderate
moderate
qty households households households households %tots] households
income
Income
income
Ventura .
Mdorpsdc city 22A%
households
._households
households
Thai
Ventura
18.1% 20.7% 38.8% 100% 383
Ojai city 20.8% 17.1% 20.8%
3
627
1,617
Ventura
41.3% 100% .90
. Oxnard 21.0% 17.2% 20,4%
74
o
80
179
433
. .. Ventura
41A% 100% 1,491
� Port Hueneme city 20.0% 17.2%
1,221
2
1,446
2,936
7,093
Ventura
20.6% 422% 100% 36
San Buenaventura (Ventura) 21.2% 17.5%
. 31
37
76
180
Ventura
Santa Paula city 20.3% 41.0% 100% 849
20.2% 17.4%
703
816
1,643
4,011
Ventura
20.6% 41.8% 100% 463
Simi Valley city 223% 17.9% 20.5%
390
462
g3t1
2241
Venture
59.3% 100% 754
Thousand Oaks c
city 223% 18.0% 20.8%
605
694
1,330
3,383
Venture
38.9Ye 100% 411
Uninc ate, 21.7% 17.8% 20.7% 39.7% 100%
333
385
718
1,847
305
Note: There is a one unit rounding difference In some localities between the total housing need and the
250
291
658
1,404
In such cases,
th 4I
sum of the 4 Income groups.
communities may choose which of the Incomacategodes It will adiust by one unit to
maintain consistency with the approved
total housing
need.
rl
. Final
MNohnson\RHNA1RHNAFinal.xls 07/12/2007
Page 7
H`.
Final Regional Housing Need Allocation Plan - Planning Period (January 1, 2006 - June 30, 2014)
for Jurisdictions within the Six - County SCAG Region (approved by the SCAG Regional Council on July 12, 2007)
r6Y
�YIY
- % %above
%very low %low moderate moderate
income Income Income Income
households households households households
%total
Number of .
very low
income
households
Number of
% % above
Number of
Total
Number of
above
%very low %low moderate moderate
very low
Number of low
moderate
moderate
. Income Income Income income
Income
Income
I Income
Income
Cc" C households households households households %total
households
households
households
households' Total
- _-
- % %above
%very low %low moderate moderate
income Income Income Income
households households households households
%total
Number of .
very low
income
households
Number of low
Income
households
Number of
moderate
Income
households
Number of
above
moderate
Income
households
Total
Imperial
NAG
24.8%
Impede!
24.8%
16.4%
15.8%
43.094
100%
6.025
4,000
3,851
10,451
24,327
Los Angeles
24.7%
15.7%
17.1%
42.6%
100%
70.117
44.469
48,472
120,869
283.927
Orange
21.5%
17.7%
19.9%
40,9%
100%
17.733
14.566
16.380
33,653
82,332
Riverside
23A%
16.3%
18.5%
41.8%
1009(
40.849
28.535
32.292
73,029
174.705
San Bernardino .
23.3%
16.2%
16.8%
41.6%
100%
25.051
17.420
20,275
44,797
107.543
Venture
21A%
17.8%
20.5%
40.5%
100%
5,682
4.660
5.444
10.748
26.534
SCAG
23.7% '
16.2%
18.1%
42,0%
100%
165,457
113.649
126.715
293.547
699,368
Fnr IrrtMnwflM nMv
2,345
5.765
13,733
We Angeles
Gateway Cities
24.5%
1114%
1 &9%
43.2%
1009(
Sublmery by Subvgglon
County Subregion
- % %above
%very low %low moderate moderate
income Income Income Income
households households households households
%total
Number of .
very low
income
households
Number of low
Income
households
Number of
moderate
Income
households
Number of
above
moderate
Income
households
Total
Imperial
NAG
24.8%
16A%
15.89'0
43.0%
100%
6.025
4.000
3,851
10.451
24,327
Los Angeles
North LA
25.2%
15.9%
17.1%
41.8%
1009(
18.499
11,661
12,554
30,639
73.352
Los Angeles'
LA City.
24.1%
15.5%
17.1%
43.3%
100%
27A36
17.620
19.443
49.199
113.698
Las Angeles
Arroyo Verdugo
24.9%
15.8%
17.0%
42,3%
100%
1.871
1,187
1,282
3,184
7.524
Los Angeles
San Gabriel Valley Assoc.
25,2%
15.7%
17.0%
42.1%
100%
10.690
6.675
7.220
17.893
42,478
Las Angeles
Westelde Ohfes
25.4%
16.0%
17.2%
41 A%
100%
893
564.
605
1,457
3,519
Los Angeles
South Bay Cites Assoc.
25.1%
15.8%
17.1%
42.0%
100%
3,450
2.173
2,345
5.765
13,733
We Angeles
Gateway Cities
24.5%
1114%
1 &9%
43.2%
1009(
6,914
4.360
4,777
12.185
28236
Los Angeles
Las Virgenes. Conejo
26.30/.
16,5%
17.7%,
39.5%
100%
364
229
246
548
1,387
Orange
Orange
21.5%
17.71Y.
19.9%
40.9%
100%
17.733
14.566
16,380
33.653
82.332
Mverside
WROOG
23.5%
16A%
18.5%
41.70/6
100%
30,798
21,501
24.208
54.625
131.133
Riverside
CVAG
23.1%
1 6.1%
.1 &6%
42.294
100%
10,050
7.034
8,084
18.404
43.572
San Bernardino SANBAG
23.30%
16.2%
18.80%
41.6%
1009/,
25.051
17.420
20,275
44,797
107.543
Ventura
'VCOG
21 A%
17.6%
20.59/6
40-W
100%
5.662
4,660
5A44
10,748
26,534
SCAG
23,7%
16.2%
18.1%
42.0%
100%
165,457
113.649
126.715
293.547
699.368
For Imormauon omy
M:yohnsnn\RHNA\RHNAFinal.xls
Final
07/12/2007
. Page 8
EXHIBIT F
PROGRESS IN MEETING Rr. ')NAL HOUSING NEEDS Page 1 of 21
CITY OF NEWPORT BEACH
PLANNING COMMISSION STAFF REPORT
Agenda Item No. 5
October 5, 2006
TO: PLANNING COMMISSION
FROM: Planning Department
-Brandon Nichols, Assistant Planner
(949) 644 -3234, bnichols ftity. newport-beach. ca. us
SUBJECT: Housing Element Implementation - Annual Progress Report
hECOMMENDADM
Review and forward the Annual Housing Element Implementation Report to the City Council
for final review.
DISCUSSION:
California Government Code Section 65400 requires the City to file an annual report every
October to its °legislative body," the State Office of Planning and Research (OPR), and the
State Department of Housing and Community Development (HCD). The report is required to
provide information on status of the General Plan and the City's progress in implementing
its programs as well as its progress in meeting regional housing needs goals. The City must
also report on its efforts to remove governmental constraints to the maintenance,
improvement, and development of housing for all income levels.
Since the comprehensive update of Newport Beach General Plan will not be complete until the
election in November, an annual review of the entire General Plan is not required at this time.
Consistent with the guidelines from OPR, the City will submit a brief letter to the State
describing the scope of the General Plan Update and its anticipated completion date.
httP: / /www. city. newport- beach.ca.us/PlnAgendas/2006ri 100506- 05.htm 12/10/2007-
YKUUF- ✓JJ IN M 't,L1'1NU Krr
NAL HOUSING NEEDS
Page 2 of 21
As required by State Housing Element law, staffff has completed a detailed Housing Element
Implementation Report which provides the following information: (A) a review of the City's
progress in fulfilling its share of the Regional Housing Needs Assessment; (B) a complete
detailed status report on the implementation of each of the housing programs of the City's
Housing Plan; and (C) a review of actions and programs adopted to remove or mitigate
governmental constraints on the development of housing for all income levels. 'Since the City
is in the midst of updating its General Plan, the report contains an additional section that
discusses the options for future residential development that are being considered as part of
the General Plan Update (D).
Environmental Review
Not subject to CEQA, as the action is not a project as defined in Section 15378(b)(2) of the
Public Resources Code.
Prepared by: Submitted by:
Brandon Nichols
Assistant Planner
Exhibits:
1. Housing Element Implementation Report
Patricia Temple
Planning Director
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12110/2007
PROGRESS IN MEl 1'ING RJ-f 'NAL HOUSING NEEDS
Exhibit I
CITY OF NEWPORT BEACH
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Page 3 of 21
12/10/2007
0
PKUCiKtNN IN M C;r;1'tNU KP'
'NAL HUUN1NU NN�llN
Page 4 of 21
HOUSING ELEMENT IMPLEMENTATION
REPORT
Fiscal Year 2005 -2006
The Newport Beach Housing Element was adopted in August, 2003. The element was
subsequently amended in April, 2005. Since then, City staff has been diligent in their attempts
to implement the Housing Element's goals and programs. This report evaluates these
programs and outlines attempts made to pursue program and goal fulfillment.
California Government Code Section 65400 specifically mandates that the report provide the
following information: (A) a review of the City's progress in fulfilling its share of the Regional
Housing Needs Assessment; (B) a complete detailed status report on the implementation of
each of the housing programs of the City's Housing Plan; and (C) a review of actions and
programs adopted to remove or mitigate governmental constraints on the development of
housing for all income levels.
A. PROGRESS IN MEETING REGIONAL HOUSING NEEDS (RHNA
GOALS)
The Southern California Association of Governments (SCAG) prepared a Regional Housing
Needs Assessment (RHNA) to identify the housing need for each jurisdiction within the SCAG
region. SCAG, through the RHNA process, has assigned Newport Beach a curtain share. of
housing units that it should provide between the 1998.— 2005 planning period in an effort to
satisfy housing needs resulting from the projected growth in the region. To accommodate
projected growth in the region, SCAG estimates the City needs to target its housing unit
production to accommodate 476 new housing units.
With the annexation of Newport Coast in 2001, the City agreed to transfer 945 units from the
Orange County Regional Housing Needs allocation to the Newport Coast area. This
agreement was made since the Irvine Company committed to the County to fulfill its
allocation. However, since the County is still responsible for issuing building permits for the
area, the analysis on meeting the RHNA allocation does not include the 945 Newport Coast
units. Data from the County of Orange regarding the number of issued building permits is
forthcoming.
Due to proposed changes in RHNA methodology,. jurisdictions in the SCAG region will not
receive new RHNA allocation numbers until 2007. This will result in a "gap period" from the
end. of the 2005 RHNA cycle until 2007. During this period, the City of Newport Beach will
continue to track housing unit production at all income levels. This information will be used to
monitor the City's progress towards providing its share of regional housing needs.
The table below indicates the future need for housing in Newport Beach and its distribution by
income group as calculated through the RHNA process (excluding Newport Coast).
TOTAL RHNA CONSTRUCTION NEED BY INCOME
1998 -2005
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12/10/2007
PROURbSN iN NLLI F NU PP 'NAL HUUNLNU NbbDS Page-') ot'L1
VERY LOW
LOW
MODERATE
I ABOVE MODERATE
TOTAL
86
1 53
83
1 254
476
18% 1
11%
17% 1
53'
1 100%
The.City Building Department maintains a detailed Building Activity Report for each fiscal
year. The report lists the total number of. different types of construction permits issued, as well
as the number of demolition permits issued. This data was used to create the following table
illustrating the total number of new additional units that were permitted from 1998 -2006.
TOTAL NUMBER OF NEW ADDITIONAL HOUSING UNITS PERMITTED
1998 -2006
FISCAL YEAR
NEW
UNITS
VERY
DEMOLISHED
UNITS
TOTAL ADDITIONAL
UNITS
1 ST 6 MONTHS OF
1998
315
LOW
180
135
1998 -1999
1018
86
158
860
1999 -2000
742
24
258
484
2000 -2001
1234
1 168
166
2001 -2002
1159
1130
29
2002 -2003
162
62
174
-12
2003 -2004
198
162
36
2004 -2005
329
170
159
2005 -2006
170
159
11,
TOTAL
3327
1559
11768
The City issued a total of 1,757 new additional residential building permits during the 1998-
2005 RHNA period. This number well exceeds the total 476 units projected by SLAG. During
the 2004 -2005 reporting period the City issued 159 permits for new additional dwelling units.
120 of.the new units are a result of building permits issued for the Bayview Landing Senior,
Affordable Housing Project. With the exception of one "mangers unit' all of the. 120 units are
designated for very low: and low income seniors.
CITY'S PROGRESS IN MEETING IT'S SHARE OF THE REGIONAL HOUSING NEEDS
ASSESSMENT DURING RHNA PERIOD 1998 -2005
VERY
ATE ABOVE
LOW
MODERATE
PROJECTED NEED
86
254 .
TOTAL NEW UNITS
24
1637
ffLOW
E476
PERMITTED
1/98 -6/05
REMAINING NEED
62
0
B. HOUSING PROGRAM.IMPLEMENTATION STATUS
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YKVVKL"JJ llV NiY51r1llVli Kl"!
'N AL 11V U J11V li NhhON
1
1.1.1 Improve housing quality and prevent
deterioration of existing neighborhoods
by strictly enforcing building code
regulations and abating code violations
and nuisances. Enforcement activities_
will focus on property maintenance,
eliminating derelict or abandoned
vehicles, outdoor storage, or other
situations that may constitute health,
safety or fire hazards.
Reduce the potential for criminal
activity by providing guidelines for
maintaining the security of existing
development with emphasis on site
design (such as security lighting,
vegetation removal, electronic garage
door openers, window security. and
other crime prevention techniques).
1.1.3 Promote the maintenance and upkeep
of rental housing by encouraging the
California State Franchise Tax Board to
enforce the Tax Code preventing
owners of rental housing from claiming
depreciation, amortization, mortgage..
interest and property tax deductions on
1.1.4 Continue to participate with the OCHA
and HCD in their administration of
rehab loans and grants for low- and
moderate- income homeowners and
rental property owners to encourage
preservation of existing housing stock.
Continue to require replacement of
housing demolished within the Coastal
rage 6 or zl .
The Uniform Housing Code is
Adopted and continually
enforced by the Building
Department and Code
Enforcement Department.
The Water Quality and Code
Enforcement Department
continually administers an
enforcement program to
correct violations of municipal
codes and land use
requirements.
A quarterly report is kept on
file on code enforcement
Planning staff recommends
design elements to maintain
security and coordinates plan
review with Newport Beach
Police Department.
A brochure was created and
placed in the public lobby
containing Guidelines for
This program will be deleted
from the Housing Element
during the next update cycle.
Research is in progress and an
analysis of different programs
and the financial feasibility of
participating in these programs
will be assessed.
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12/10/2007
YKUIiK ,N LIN Y1hb1JA(j"I NALHVUSINUIVEWS
Zone when housing is (or has been)
occupied - by low- and moderate
households within the last 12 months).
The City shall prohibit demolition unless
a Coastal Residential Development
Permit has been issued. The specific
provisions implementing replacement
unit requirements are contained in-
1.1.6 Participate in a cooperative program
with the OCHA and Community
Development program office for
administration of the HUD Rental
Rehab Program. Energy efficient
products shall be required when
appropriate.
1.1.7 Should need arise, consider using a
portion of its CDBG funds for
establishment and implementation of
an emergency home repair program.
Energy efficient products shall be
required whenever appropriate.
1.2.1 As part of its annual -General Plan
Review, the City shall provide
information on the status of all housing
programs. The portion of the annual
report discussing housing programs is
to be distributed to HCD in accordance
with State law in January of each year
via US postal service.
1.2.2 Investigate availability of Federal, State
and local programs (including in lieu
funds) and pursue these programs if
found feasible, for the preservation of
low- income housing that may increase
to market rates during the next ten
years. A list of these programs,
including sources and funding amounts
will be identified as part of this program
As part of the annual GP review,
monitor existing programs designed to
Yage / of 2
Chapter 20.86 of the Zoning
Code, "Low and Moderate
Income Housing within the
Coastal Zone," establishes the
standards and requirements to
implement this program.
On -going and
Research is in progress, and
an analysis of different
programs and the financial
feasibility of participating in
these programs will be
assessed. ,_
Staff will prepare a study to
analyze whether or not a need
for this program exists. If it is
determined that a need exists,
Due to the comprehensive
General Plan Update, the City
is not conducting an annual
General Plan review.
Consistent with the guidelines
from the State Office of
Planning and Research (OPR),
the City will be presenting OPR
with a brief letter describing the
scope of the General Plan
Update and the anticipated
Research is in progress, and
an analysis of different
programs and the financial
feasibility of participating in any
of these programs (if.any) will
be assessed.
http: / /www.city.newport- beach. ca. us /PlnAgendas/2006 /il00506- 05.htm 12!10/2007
rKUL&tr, J LN Nlhh11N Ur Kr.I
NAL HUUNINIi 1NhhL)N
preserve assisted housing
development for very low- and low -
income households to determine
whether additional actions are available
and should be required to protect these
1.3.1 Continue to contract with the OC Fair
Housing Council for administration of
the Fair Housing Program including
updating the analysis of impediments to
fair housing. In addition, continue to
contract with OCHA to refer fair
housing complaints. Pamphlets
containing information related to fair
housing complaints will continue to be
provided to the public at the Planning
Department.
Support .fair housing opportunities by
using CDBG funds whenever
necessary to enact Federal, State and
City fair housing policies.
Monitor progress on each program and
periodically report findings to the
Planning Commission and City Council.
wnenever Jana use regulations, land
use designations or Housing Programs
are proposed for adoption or
modificafion, the City of Newport Beach
Planning Department shall undertake
an analysis to determine if the
proposed action or regulation is
consistent with the Housing Element,
all other elements of the General Plan,
rage is or zl
The City contracts with the OC
Fair Housing Authority
annually.
The Regional Fair Housing
Impediments Analysis was
completed in 2000.
Pamphlets containing
information of Fair Housing and
Dispute Resolution Services
are provided at the public
counter.
For the 2005 -2006 Fiscal Year,
Newport Beach allocated
$13,068 in CDBG funding to
the Fair Housing Council of
Orange County to assist the
City in furthering fair housing
through education,
landlord/tenant counseling, and
leaal action when necessary.
In conjunction with Program
1.2.1, staff will present the
Planning. Commission and the
City Council with an annual
status report for their review
and approval prior to
This is a standard procedure
for all Planning Department
staff. Consistency with the
General Plan is a standard
finding of approval.
If an inconsistency exists, staff
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12/10/2007
YKVUKM611N 1V=1LNU FU1f 'NAL HUUN NU 1NhhJ_)N
Yage 9 of 11
GOAL 2
Maintain rental opportunities by restricting
conversions of rental units to
condominiums unless the vacancy rate in
Newport Beach for rental housing is 5 % or
higher for four (4) consecutive quarters,
and unless the property owner complies
with condominium conversion regulations
contained in Chapter 20.83 of the Newport
2.1.2 Take all feasible actions, through use of
development agreements, expedited
A vacancy rate survey is
completed every quarter to
monitor consistency with this
policy.
http: / /www.city.newport- beach. ca. us /PlnAgendas/2006 /i100506- 05.htm 12/10/2007
and with ail adopted City Council
takes the appropriate actions. to
policies. If the proposal is inconsistent,
amend policies, plans, or
the policy, plan or Element shall be
Elements to ensure
amended in conjunction with approval
consistency.
of the proposed regulation or action to
ensure consistency. Consistency shall
be achieved whenever a regulation,
action or project is approved.
1.5.1
Investigate the use of Federal funds to
Pending
Provide technical and financial
assistance, if necessary, to all eligible
Research is in progress, and
homeowners and residential rental
an analysis of different
property owners to rehab existing
programs and financial.
dwelling units through low- interest
feasibility of participating in
loans or potential loans, or grants to
these programs will be
very low, low, and mod- income owner
assessed.
occupants.
1.5.2
Periodically inform mobile home
Pending
owners of,financial assistance available
from State HCD for eligible owner-
Research is in progress, and
occupants to rehab existing dwelling
an analysis of different
units through deferred payment low-
programs and financial
interest loans.
feasibility of participating in
these programs will be
assessed.
1.5.3
Per Government Code Section
On -going
65863.7, a Mobile Home Park
Conversion Permit shall be required as
City staff requires special.
a prerequisite for conversion of an
permits for all proposed
existing mobile home park. In addition,
conversions of mobile home
the owner of the mobile home park
parks and as required by State
shall provide a detailed relocation
Law, requires detailed
impact report. The report shall be filed
relocation impact reports.
concurrently with filing for any
discretionary permit on such property.
GOAL 2
Maintain rental opportunities by restricting
conversions of rental units to
condominiums unless the vacancy rate in
Newport Beach for rental housing is 5 % or
higher for four (4) consecutive quarters,
and unless the property owner complies
with condominium conversion regulations
contained in Chapter 20.83 of the Newport
2.1.2 Take all feasible actions, through use of
development agreements, expedited
A vacancy rate survey is
completed every quarter to
monitor consistency with this
policy.
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YKUIiKrJJ r1V NI=Iif J I(P' . 'NAL riUUJiNl7 NhWb
development review, and expedited
processing of grading, building and other
development permits; to ensure expedient
construction and occupancy for projects
approved with low- and moderate - income
housing requirements.
2.1.3 The City Council and Planning
Commission shall have discretion to review
and waive planning and park fees, and
modify development standards (e.g.
parking; setbacks, lot coverage, etc.) for
developments containing low - and
moderate- income housing in proportion to
the number of low- and moderate - income
units in each entire project.
continue to encourage the California State
Department of Real Estate and California
State Department of Housing and
Community Development to permit
installation of mobile homes, factory-built
housing, or other construction technology,
provided such products comply with
development standards of the community
and are compatible with planning,
aesthetic, and other applicable
considerations of , the specific
neighborhood in which such product is
Continue to participate with the County of
Orange in the issuance of tax exempt
mortgage revenue bonds to facilitate and
assist in financing, development and
construction of housing affordable to low
and moderate - income households. City
staff shall . encourage developers of
remaining residential sites to use tax -
exempt mortgage revenue bonds to
facilitate construction of low- and
moderate - income housing.
rage ru or zi
Planning staff continually
evaluates all proposed
affordable housing projects for
potential incentives, including
expedient processing of permits.
During the entitlement process,
the Bayview Landing Senior
Affordable Housing Project was
granted a partial entitlement fee
waiver, expedited permit
processing, and entitlement
Staff continually evaluates
proposed affordable housing
projects to determine potential
incentives, including the waiver
of fees and flexibility with
development standards.
The Bayview Landing Senior
Affordable Housing Project was
granted a partial fee waiver as a
The City of Nqwport Beach
continually complies with State
Law as it applies to the
permitting and installation of
mobile homes and factory built
housing.
On -going
The participation with the County
of Orange in the issuance of tax
exempt mortgage revenue bonds
is project driven. Usually the
developer applies for the tax
exempt bonds.
The City will encourage and
inform developers of the use and
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rKUUKVZauvmrr,tlNttltrJ 'NALnvwuvvrvcrliZ�
Develop and implement an annual
compliance- monitoring program for units
required to be occupied by very low -, low -,
and moderate income households as
approved with the development of Newport
Coast and in accordance with the Newport
Coast Affordable Housing Implementation
Program (AHIP).
Continue to require a proportion of
affordable housing in new residential
developments or levy an in -lieu fee. The
City's goal over the five -year planning
period is for an average of 20 % of all new
housing units to be affordable to very low -
and low- income households. Given
considerations of proper general planning,
the California Environmental Quality .Act,
Project development incentives, and
government financial assistance, the City
shall either; a) require the production of the
housing units affordable to very low -.and
low- income households, or, b) require the
payment of an in -lieu fee, depending on
the following criteria for project size:
2.2.2 The City-shall provide more assistance for
projects that provide a higher number of
affordable units or a greater level of
affordability. More than 20 %0 of units shall
be affordable when assistance is provided
from Community Development Block Grant
funds or the City's in -lieu housing fund.
rage i i or Li
availability of tax exempt bonds.
The Bayview Landing Senior
Affordable Housing Project was
awarded a total of $4,583,727 in
tax credits. (See Bayview
Landing status report for details
on nroiect)
It has been determined by the
County of Orange, that the
affordable housing obligations
for Newport Coast have been
met through the provision of off -
site affordable apartments.
Staff continues to enforce the
requirements for affordable
housing and/or the payment of
in -lieu fees. In addition, the City
is in the process of updating its
in -lieu fee and affordable
housing ordinance to reflect
current land costs and to clarify
existing requirements.
The City will provide financial
assistance based on a project by
project analysis, depending on .
need and overall project merits.
The City.continues to participate
in this Housing Program. The
Bayview Landing Senior
Affordable.housing project
received $1, million dollars from
the City's "in -lieu" housing fund
reserves. (See Bayview Landing
status report for details on
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YKUU" -JJ llV NLtZILNU KVI 'NAL riUU611NU JNhhUJ
rage rz or zr
2.2.3
For new developments proposed in the
On going
Coastal Zone areas of the City (comprising
approximately 40% of the area of Newport
Staff continues to implement the
Beach), the City shall require provision of
provisions of Chapter 20.86 of
housing affordable to persons or families of
the Zoning Code (Low and
low- and moderate- income, where feasible
Moderate Income Housing within
in projects of 10 or more units. Whenever
the Coastal Zone ").
practicable, the City shall require they be
located on -site; alternatively, the City may
permit the developer to locate units off -site
but within the Coastal Zone, or within (3)
miles of the Coastal Zone (within Newport
Beach): All residential developments of
three units or more within the Coastal Zone
shall require a Coastal Residential
Development Permit. Determinations of
feasibility, and procedures relating to
provision of low- and moderate - income
housing within the Coastal Zone, shall be
governed by Newport Beach Municipal
Code Title 20.
2.2.4
All required affordable units shall have
On -going
restrictions to maintain their affordability for
-
a minimum of 30 years.
Staff continues to include this
affordability restriction as a
standard condition on all
affordable housing projects,
unless an otherwise longer
affordability. covenant is agreed
upon'.
A comprehensive affordable
housing ordinance is currently
being developed which will
clearly specify all conditions for
incentives, including the
minimum affordability period of
30 years.
Attempt to ensure that existing landowners
and prospective developers are aware of
affordable housing development
opportunities available within the Newport
Banning Ranch, . Bayview, and
Avocado /MacArthur properties.
Bayview Landing was required to
provide a restricted affordability
covenant of a minimum of 55
City staff continues to provide
prospective developers with
information on the City's
available land and its incentive
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12/10/2007
PROGRESS IN MEETING RF! NAL HOUSING NEEDS
The Affordable Housing Task Force and/or
City staff shall periodically contact known
local developers and landowners to solicit
new affordable housing construction.
2.2.7 The Affordable Housing Task Force shall
create a program for the expenditure of in-
lieu housing funds.
2.2.8 When it is determined to be of beneft, the
City shall participate in other housing
assistance programs that assist production
of housing.
Newport Beach Staff and developers of
proposed major commercial/industrial
Projects shall study housing impact(s) of
such project(s) during the development
review process. Prior to project approval,
a housing impact` assessment shall be
developed by the City with the active
involvement of the developer. Such
assessment shall indicate the magnitude of
jobs to be created by the project, where
Page 13 of 21
program.
For example, as part of the
General Plan update, the
potential for affordable housing
was discussed with property
The City Manager's Office and
Community and Economic
Development periodically
discuss the construction of new
affordable housing with local.
developers and landowners.
City staff also introduces the
idea of constructing affordable
housing to developers who
propose large residential
projects and discuss Density
Bonuses to assist in the
construction of affofdable
Upon completion of developing
an In -Lieu Fee program and
ordinance, a meeting will be
scheduled with the Affordable
Housing Task Force to develop a
program for the expenditure of
in -lieu fees.
City staff continues to investigate
feasible housing assistance
programs.
Staff is monitoring legal
challenges to inclusionary
housing requirements, and will
research the idea of developing
housing impact fees for all new
commercial and industrial
developments as an additional or
alternative resource for providing
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YKUI1(h1M IN MIrC;11Nli 1Ct'�
NAL HUUJllVIi 1VthOS
housing opportunities are expected to be
available, and what measures (public and
private) are requisite, if any, to ensure an
adequate supply of housing for the
projected labor force of the project and for
any restrictions on development due to the
As part of the comprehensive General Plan
Update, investigate the potential of housing
(including single room occupancy hotel(s),
and mixed use development in areas such
as Newport Center, Santa Ana Heights,
Bay Knolls and JWA.
Yage 14 of 21.
affordable housing.
Staff will monitor all new
planning applications for
applicability.
The updated General Plan
approved by the City Council in
July includes new housing
opportunities (1,166 units) in
Newport Center, the JWA area
and other areas. The City
Charter requires voter approval
of General Plan amendments
that increase the number of
residential units by more than
100, and the General Plan is on
GOAL 3
PROGRAM
I GOAL
ISTATILIS
3.1.1
Increase the efficiency of the building
On -going
permit process by insuring that the initial
plan review be completed within 4
The City has an automated
weeks for 90% of all submittals. This
tracking system in place.
will include an automated tracking
If a target date is missed, an email
system allowing applicants to monitor
notification is sent to all
plan check progress via the Internet.
department supervisors. Efficiency
Implementation of this program began in
of plan check review is monitored
September 2002 and operates on an on-
monthly to ensure a 90% success
.going basis.
rate.
The City completed an evaluation
Of the building permit process in
August 2006, and is beginning to
implement recommendations to
improve efficiency..
3.1.2
When a residential developer agrees to
Ongoing
construct housing : for persons and
families of low and moderate income,
The City considers density bonuses
the City shall either (1) grant a density
and other incentives on a project by
bonus or (2) provide other incentives of
project basis, depending on the
equivalent financial value.
need and Droject merits.
3.2.1
Identify the following sites as adequate,
On -going
which will be made available through
appropriate zoning and .development
All three of these sites have been
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rKUUF,tZN llV N1CbiINU Eb? NAL HUUJUNU 1Vbbl)S
standards and with public services and
facilities needed to facilitate and
encourage development of a variety, of
housing types to meet City housing
goals as identified pursuant to.
Government Code Section §65583(b):
Newport Banning Ranch; Bayview
Landing; and, Avocado /MacArthur.
rage 13 or zl
identified in the Housing Element
under, "Inventory of Land Suitable
for Residential Development'.
A project proposal has not been
received for the Banning Ranch
site; although the updated General
Plan retains it as a housing
3.2.2 Require the developer(s) of the 4.5 -acre Completed
site located on the southwesterly comer
Of the intersection of Jamboree Road
and Back Bay Drive (known as the
Bayview Landing , site) to provide
approximately one hundred twenty (120)
residential units for low- income senior
households. The City shall assist the
developer(s) by streamlining the
discretionary application process and by
granting a density bonus of twenty -five
percent J25 %) for the project.
Additionally, the City may consider using
a portion of fees collected from other
projects paid in -lieu of providing
affordable residential units to facilitate
meeting the City Affordable Regional
Housing Needs. Assessment
construction requirements on said
BaYview Landina site.
3.2.3 Encourage the developer(s) of a 3.5- Pending
acre site located northerly of San
Miguel, easterly of Avocado Avenue,
and westerly of MacArthur Boulevard
(known as the Avocado/MacArthur site)
to provide at least fifty -six (56) multiple -
family residential units for Senior Citizen
Households. The City shall assist the
developer(s) by initiating a Change of
Zone within one (1) year of certification
of this Housing Element to allow such
senior residential units on said site, by
The Avocado/MacArthur site
remains available for multifamily
development. However, the
updated General Plan re-
designates this site as open space
and instead makes other sites
available for more housing units
than could be developed at this
site. Voter approval is required for
additional units.
considering a "density bonus" and/or
other incentives, and by streamlining the
discretionary process. Additionally, the
City may consider using a portion of
fees collected from other projects paid in
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PROGRESS IN MEETING RF'
3.2.4
3.2.6
3.2.7
NAL HOUSING NEEDS
lieu of providing affordable residential
units to facilitate meeting the City's Very
Low -, Low -, and Moderate- Income
Regional Housing Needs Assessment
construction require -ments on the
Avocado /MacArthur site.
When requested by property owners,
the City of Newport Beach shall continue
to approve rezoning of developed or
vacant property from non - residential to
residential uses when appropriate.
These rezoned properties shall be
added to the list of sites for residential
development.
The City shall consider a potential
reduction of commercial zoning within
some of its village commercial areas
within the Coastal Zone to allow for
additional residential development.
Economic feasibility studies to support
such a reduction will be evaluated
concurrently with the City's General Plan
Update projected for completion in 2005.
Encourage the participation in a Joint
Powers Authority of Orange County
jurisdictions for the purpose of financing
and administering a lease purchase
Program for first -time homebuvers_
Continue to participate as a member of
the Orange County Housing Authority
Advisory Committee and work in
cooperation with the Orange County
Housing Authority to provide Section 8
Rental Housing Assistance to residents
of, the community. The City shall, in
cooperation with the Housing Authority,
recommend and request use of modified
fair market rent limits to increase
number of housing units within the City
that will be eligible to participate in the.
program. The Newport Beach Planning
Department shall prepare and
implement a publicity program to
educate and encourage landlords within
Page 1 o or 21
The City continually monitors
requests for zone changes of
vacant and developed properties
from non - residential to residential
and approves when determined to
be compatible and feasible. When
approved, these sites are mapped
for residential uses on both the
zoning district. map and General
Plan Land Use Map.
Several commercial areas in the
Coastal Zone have been re-
designated for mixed use
(residential/commercial)
development in the updated
General Plan, which is on the ballot
for November 2006.
On -going
Due to potential legal conflicts, the
lease purchase program has been
On -going
City Staff regularly attends the
quarterly meetings of the Cities
Advisory Committee.
In addition, staff continually works
in cooperation with the County to
provide Section 8 rental housing
assistance to residents.
The City is currently working with
the OCHA to help disseminate
information regarding the upcoming
opening of the Section 8 waiting
list.
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PROGRESS IN MEETING RF' NAL HOUSING NEEDS
the City to rent their units to Section 8
Certificate holders and to make very
low- income households aware of
availability of. the Section 8 Rental
Housing Assistance Program.
rage i i or LI .
A link to the Orange County
Housing Authority website has
been placed on our City website to
provide information on the Section
8 program.
GOAL
PROGRAM GOAL STATUS
4.1.1
Periodically contact owners of affordable
On -going
units for those developments listed on
Table 29 to obtain information regarding
Staff is currently updating the
their plans for continuing affordability on
contact list for affordable units. A
their properties.
survey may be developed and
sent out annually to each
contact.
4.1.2
Consult with property owners regarding
Pending
CDBG funds and in -lieu funds to maintain
affordable housing opportunities in those
Will be discussed during the
developments listed in Table 29.
AHTF meetings in conjunction
with Program 2.2.7.
4.1.3
Prepare written communication for tenants
On -going
and other interested parties about OCHA
Section 8 renewals to assist tenants and
Information pamphlets informing
prospective tenants to acquire additional
prospective tenants and
understanding of housing law and related
landlords about the OCHA
policy issues.
Section 8 program have been
made available in the public
lobby.
In addition, information about the
Section 8 program has been
posted on the City website.
4.1.4
Continue to pursue Community
Pending
Development Grant Funds to facilitate
construction of housing for very low- and
Research is in progress, and an
low- income households. Use of CDBG
analysis of the financial feasibility
funds may include but shall not be limited
of using CDBG funds will be
to site acquisition, "off - setting" of land
assessed.
and/or construction costs.
GOAL
TUS
Apply for US Department of Urban
Development CDBG funds and allocate a
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HUUSINIi NEEDS
portion of such funds to sub- recipients
who provide shelter and other services
for the homeless.
5.1.2 As a ..condition of receiving housing
funding through the City, the City shall
require social service agencies receiving
such funds record information on clients
they serve and provide an annual audit of
their activities.
5.1.3 Cooperate with OCHA to pursue
establishment of a Senior/Disabled or
Limited Income Repair Loan and Grant
Program to underwrite all or.part of the
cost of necessary housing modifications
and repairs. Loans would be repaid or
forgiven on an ability to pay basis.
Health and safety deficiencies would
receive priority. Modifications for
accessibility also would be appropriate.
Administration of funds would be the
responsibility of the OCHA. Cooperation
with OCHA will include continuing City of
Newport Beach participation in_ the OC
Continuum of Care an_d continuing to
provide CDBG funding.
5.1.4 Continue to permit development of senior
citizen housing facilities in all residential
and commercial zoning districts pursuant
to Zoning Code Sections 20.10.020 and
20.15.020(b).
rage is or/ i
The Action Plan for Fiscal year
2005/2006 has been approved
and the City will provide funding to
the following organizations to
preserve the supply of emergency
and transitional housing: Orange
Coast Interfaith Shelter, Serving
People In Need(SPI%
WISEPlace, and M_ecey House.
The following organization has
been funded to assist homeless
battered women and children:
WISEPIace
On -going
Reports are submitted on a
quarteriy.basis with each invoice
from CBDG recipients. These
records are kept on file at the
grant administrator's office IMDG
Research is in progress, and an
analysis of different programs and
the financial feasibility of
participating in these programs will
be assessed.
Bayview Landing is a senior
affordable housing project
consisting of 120.units. All units
are age restricted to those 62
vears of aae and older_
5.1.5 Continue to permit, where appro priate,' On -going
development of "granny" units in single -
family areas of the City. Consider Code Amendment No. 2003 -001
amending the zoning code to allow (PA 2003 -054) was, by
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approval of "granny units" at the staff
. City Council May 13, 2003 to
level instead of by the Planning
grant the Planning Director
Commission.
approving authority over Second
Unit Use Permits, rather than the
Planning Commission.
5.1.6
Consistent with the development
On -going
standards in residential and commercial
areas, continue to permit emergency
Emergency shelt6ts and
shelters and transitional housing under
transitional housing are monitored
group housing provisions in its Zoning
for compliance with the
Code.
development standards
regulations contained in the
Zoning Code.
5.1.7
The City of Newport Beach shall
On -going
investigate. State Housing Opportunities
for Persons With AIDS ( HOPWA).
On February 9, 2005, the City
participated in the 2005 HOPWA
Strategy Meeting hosted by the
City of Santa Ana, to provide
recommendations for the
allocation of HOPWA funds for the
2005 program year. As the most
populous city in Orange County,
the City of Santa Ana receives
HOPWA funding from HUD on
behalf of the entire County.
Authorized uses of these funds
include: acquisition, rehabilitation,
conversion, or lease of facilities to
provide short -term shelter, new
construction, project or tenant
based rental assistance, short
term rent and utility payments, and
supportive services.
Should the City wish to partner in
the acquisition, development, or
rehabilitation of affordable housing
for persons with HIV /AIDS , the
City may request funding at future
HOPWA Strategy meetings.
5:1.8
Notify residential developers (upon .On
-going
application for a discretionary permit) and
to interested individuals and families, the
Project planners regularly inform
following, Table, entitled "Public and
developers about affordable
Private Resources Available for Housing
housing opportunities and
and Community Development Activities.
programs.
able included in Appendix 4
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PROGRESS IN MEETING R- ' : NAL HOUSING NEEDS
5.1.9
By December 2003, the City shall
analyze and determine whether there are
constrairts on the - ' development,
maintenance and improvements of
housing intended for persons with
.disabilities, consistent with SB 520
enacted Jan. 1, 2002. If any constraints,
are found, the City will. take subsequent
actions within 6 months of the completion
of the evaluation. The analysis will
include an evaluation of existing land use
controls, permit and processing
procedures and building codes. If any
constraints are found in these areas, the
City will initiate actions to address these
constraints, including removing the
constraints, or providing reasonable
accommodation for housing intended for
persons with disabilities.
Page 20 of 21
Completed
As required by SB520, a
Constraints Analysis report was
completed in January 2004,
however due to anticipated
changes to the Zoning Code
pertaining to "Residential Care
Facilities ", the report was
postponed until a resolution was
adopted. The City has adopted
amendments to the Zoning Code
which includes the addition of a
Federal Exception Permit process
as a mechanism for persons to
request a reasonable
accommodation pertaining to
residential care facilities for 7 or
more persons within residential
zones. Changes have been made
to the SB520 Constraints Analysis
insistent with the amendments
and the report was submitted to
BCD on July 20. 2004.
C. MITIGATING GOVERNMENTAL CONSTRAINTS
In accordance with Senate Bill SB520 and Newport Beach Housing Program 5.1.9, a thorough
analysis of constraints on the development, maintenance and improvement of housing for
persons with disabilities was conducted in January of 2004. The analysis specifically
addresses constraints related to zoning and land use controls, permit and processing
procedures, and building codes. Although. a potential constraint was. recognized, the City of
Newport Beach complies with both the federal Fair Housing Act (FHA) and the California Fair
Employment and Housing Act (FEHA) in providing reasonable accommodations through the
use of existing regulatory procedures not specially designed for people with disabilities.
A potential constraint may exist at times when there are conflicts between the California
Building Code requirements pertaining to access and adaptability for.persons with physical
disabilities and the Newport Beach Zoning Code requirements. The City recognizes that a
person with disabilities may require special accommodations for retrofitting their existing
residential units for. purposes of accessibility and safety. A remedy for dealing with these
conflicts between building code requirements for accessibility and adaptability, and the City
Zoning Code would be to amend Zoning Code Section 20.60, "Site Regulations ", to
incorporate a subsection which would allow the City to utilize a "Director / Staff Approval'. This
type of approval is an existing administrative review process and is intended to allow the
review and analysis of conflicts and requests for accommodations at the staff level. Staff is
exploring this option as part of a review of development standards contained in the zoning
code.
D. THE GENERAL PLAN UPDATE
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PROGRESS.IN MEETING Ri 'NAL HOUSING NEEDS Page 21 of 21
In order to accommodate Citys fair share of regional population growth, a significant part of
the comprehensive General Plan Update process has focused on identifying areas of the City
that may be suitable for future residential development. Since the City is largely built out, most
of the options being considered involve redesignating some commercial/office/industrial areas
for residential or mixed residentiakommercial uses. Of these, properties in the Airport Area
and Newport Center have been identified as having the potential to yield a substantial number
of new dwelling units. These two areas, in addition to several others identified as possible new
residential sites, were included in the updated General Plan approved by the City Council on
July 25, 2006, adding the potential for 1,166 more housing units than the previous General
Plan. City Charter Section 423 requires voter approval of General Plan amendments that
increase development potential by more than 100 dwelling units, and the General Plan is on
the November 2006 ballot.. Future development in these areas would be subject to affordable
housing regulations and will yield additional affordable units or generate - additional in lieu
affordable housing fees.
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EXHIBIT G
CITY OF NEWPORT BEACH
TO:
CITY OF NEWPORT BEACH
PLANNING COMMISSION STAFF REPORT
PLANNING COMMISSION
FROM: City Manager's Office
Sharon Wood, Assistant City Manager
949- 644 -3222, swood @ city.newport- beach.ca.us
Page 1 of 12
Agenda Item No. 2
June 15, 2006
SUBJECT: General Plan Update: Land Use and Housing Elements
PROPONENT: City of Newport Beach
Receive public comments on the referenced elements of the Draft General Plan; provide
direction to staff, and continue public hearing to June 22, 2006.
DISCUSSION:
The Planning Commission continued.their
and made recommendations to the City
additional policy questions, the Circulatior
and the format of the Implementation
recommendations at their June 13, 2006
reported to the Commission at the meeting.
review of the Land Use Element on June 1, 2006,
Council regarding the "Other Land Use Areas;'
i Element, the Draft Environmental Impact Report
Program. The City Council will consider those
hearing. The actions of the City Council will be
Areas and Issues for Discussion at his Hearina
At this hearing, staff recommends that the Planning Commission consider the land use plan for
Banning Ranch, revised policies for the Airport Area, and the policy additions and revisions
requested by the Planning Commission and City Council at prior hearings on the Land Use
Element. Also, staff recommends that the policy comparison table for the Housing Element be
reviewed, including the specific policy regarding the inclusionary housing requirement
previously discussed by the Planning Commission.
Banning Ranch
The owners of Banning Ranch have been working with the City on a letter of understanding,
through which they would agree on a process and timeline to make the property available for
acquisition for open space, while at the same time processing applications for developing a
residential village through the City of Newport Beach. The City would commit to including
1,375 dwelling units, 75,000 square feet of commercial space, and 75 hotel rooms in the
General Plan, and to working with the property owners on a pre- annexation and development
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CITY OF NEWPORT BEACH
Page 2 of 12
agreement. Staff expects the letter of understanding to be reviewed by the City Council on
June 27. We are asking the Commission to affirm that the development levels listed above
should be included in the General Plan.
Land Use Policies
Staff has consolidated all the land use policy changes in one attachment (Attachment 1).
Policies include Transfer of Development Rights, land use policies for the Airport Area,
including a new land use category for the Campus Tract, and Newport Center policies on the
conversion of hotel rooms and a development agreement requirement for new residential
entitlement that does not require replacing other development. The Airport Area policies
reflect the change in number of residential units and new land use designation for the Campus
Tract requested by the Planning Commission and City Council, as well as additional and
revised policies that respond to comments on our General Plan from the Airport Land Use
Commission (ALUC). The City Council has directed staff to include policies in the General
Plan that will enable Newport Beach to be deemed a "consistent agency" by ALUC; most of
these policies appear in the Airport Area section of the Land Use Element.
Housing Element
The Housing Element Policy Comparison Table (Attachment 2) shows the .changes
recommended by the Planning Commission when they considered the Housing Element on
March 9, 2006.
At that time, the Commission recommended that the inclusionary requirement for housing
affordable to lower income households be changed from 20% to 15%. That recommendation
was based on the requirements of other cities, the resources available to assist affordable
housing development in Newport Beach, and the potential for housing development provided
in the updated General Plan compared to an estimate of Newport Beach's share of the
regional need for affordable housing over 25 years. The Planning Commission and City
Council have reduced the potential for housing development as they have reviewed and
adjusted the land use plan during public hearings. Revised Table H30 reflects these changes
(Attachment 3). Staff has used these lower residential numbers to recalculate the comparison
of Regional Housing Needs Assessment (RHNA) goals to housing potential that we provided
to the Commission in March (Attachment 4).
Following are the two, 25 -year estimates of RHNA goals that were prepared in March.
Newport Coast #1 includes the full number of Newport Coast units that was negotiated for
annexation, and Newport Coast #2 includes half that amount. Goals for a planning period of
20 years have been added, because that is the General Plan "life" that we refer to most often.
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CITY OF NEWPORT BEACH Page 3 of 12
The total number of new units that could be developed pursuant to the revised Land Use
Element is 9,286. To achieve the 25 -year affordable goals shown above would require that
20% to 30% of total new units be affordable. Assuming a 20 -year goal would require 16% to
24% affordable. And looking at a more realistic scenario again, which assumes that only the
units listed below will be built during the term of this General Plan, 38% to 57% of new units
would need to be affordable to achieve the estimated RHNA affordable goals over 25 years.
For a 20 -year period, 30% to 45% would be needed.
Airport Area
Newport Coast # 1
NewDo a t # 2
5 -Year RHNA Goal - City
.476
476
5 -Year RHNA Goal — Coast
945
473
Total 5 -Year RHNA Goal
1,421
949
Total 1 -Year RHNA Goal
284
190
x25
x25
Total 25 -Year RHNA Goal
7,105
4,750
Affordable Percent
x.40
x.40
25 -Year Affordable Goal
2,842
1,900
Total 20 -Year RHNA Goal
5,680
3,800
Affordable Percent
x.40
40
20 -Year Affordable Goal
2,272
1,520
The total number of new units that could be developed pursuant to the revised Land Use
Element is 9,286. To achieve the 25 -year affordable goals shown above would require that
20% to 30% of total new units be affordable. Assuming a 20 -year goal would require 16% to
24% affordable. And looking at a more realistic scenario again, which assumes that only the
units listed below will be built during the term of this General Plan, 38% to 57% of new units
would need to be affordable to achieve the estimated RHNA affordable goals over 25 years.
For a 20 -year period, 30% to 45% would be needed.
Airport Area
2,200
Banning Ranch
1,375
Mariners' Mile
300
Newport Center
450
Newport Coast
400
Balboa Peninsula Area
250
Total Likely Units
4,975
Regardless of the percent of new units required to be affordable, the City will need a system to
implement this requirement. Staff and the City Council Affordable Housing Task Force have
been working on an inclusionary housing ordinance, a draft of which is included as Attachment
5. Some notable provisions include Section 20.68.020, which sets forth different percent
requirements, depending on which level of affordability is being provided, so that a developer
meeting very low- income criteria may provide fewer units than.one meeting moderate - income
criteria. Sections 20.68.030 and 20.68.100 allow for the use of credits when a developer
provides more than the required percent of affordable units. Section 20.68.040 provides the
option of paying fees in lieu of providing affordable units for smaller projects. There are also
alternatives, exemptions and waiver provisions. If the Commission favors continuing with the
ordinance approach, staff recommends that Implementation Measure 2.1f be revised as
follows.
Adopt an Inclusionary Housing Ordinance that guides implementation of Housing
Element Policy H2.2, including a relationship between affordability criteria and
number of units required, alternative means of satisfying the requirement, an in-
lieu fee, and waivers for special circumstances.
Another approach would be to require developers of housing projects, perhaps of a certain
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CITY OF NEWPORT BEACH
Page 4 of 12
size, to prepare Affordable Housing Implementation Plans (AHIPs) to demonstrate how they
will meet Newport Beach's inclusionary requirement. This would allow each developer to
customize his program for affordable housing. An example of an AHIP provided by
Commissioner Tucker is included as Attachment 6. In this example, a number of points are
required, and points are awarded for number of affordable units, number of bedrooms, lower
income criteria, conversion of market rate units to affordable units, etc. If.the Commission
prefers the AHIP approach, staff recommends that Housing Program 2.2.1 be amended to
read as follows:
Housing Program 2.2.1 Require a proportion of affordable housing
developments or levy an in -lieu fee. The City's
year planning period is for an average of 20%
units to be affordable to very low -, low -, an d
households. The City shall either (a) require th
ein new residential
goal over the five -
of all new housing
moderate- income
payment of an in-
lieu fee,
, or (b) require
the preparation of an Affordable Housing. Implementation Plan
(AHIP) that specifies how the development will meet the City's
affordability requirement, depending
on the following criteria for project size: (imp 2.1)
1. Projects of fifty or fewer units shall have the option of providing
the units or paying the in -lieu fee.
2. Projects where more than fifty units are proposed shall be
required to- previde- the - tinitsprepare an AHIP.
approval of any residential discretionary permits or Tentative Tract
Maps. To insure compliance with the 201/6 affordability
requirements, the City will include conditions in the approval of
discretionary permits and Tentative Tract Maps to require ongoing
monitoring of those projects.
Finally, staff recommends the following change to Housing Program 3.2.1, in response to
comments from the ALUC:
Housing Program 3.2.1 Identify the following sites as adequate, which will be made
available through appropriate zoning and development standards
and with public services and facilities needed to facilitate and
encourage development of a variety of housing types to meet City
housing goals as identified pursuant to Government Code Section
65583(b): Banning Ranch, Airport Area, Newport Center, West
Newport Mess,—Mariners' Mile, West Newport Highway, and the
Balboa Peninsula Area. Development of new housing in the Airport
Area will be restricted to areas outside the 65 dB CNEL contour as
defined in the Airport Environs Land Use Plan for John Wayne
Airport.
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CITY OF NEWPORT BEACH
Public Notice:
Page 5 of 12
Notice of this public hearing, and subsequent public hearings on the General Plan update and
EIR, was provided by a quarter page display advertisement in the Daily Pilot on June 3, 2006.
Government Code Section 65091 provides that, when the number of property owners to whom
notice would be required to be mailed is greater than 1,000 (which is the case with a
comprehensive General Plan update), notice may be provided by placing a one - eighth page
advertisement in the local newspaper.
Submitted by:
Sharon Wood .
Assistant City Manager
Attachments:
Prepared by:
Patricia Temple
Planning Director
1. Land Use Policy changes
1 Housing Element Policy Comparison Table (previously distributed)
3. Revised Housing Element Table H30
4. March 9, 2006 staff report on Housing Element
5. Draft Inclusionary Housing Ordinance
6. Draft Affordable Housing Implementation Plan
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CITY OF NEWPORT BEACH Page 6 of 12
Attachment 1
Land Use Policy Changes
City -wide
LU_ Transfer of Development Rights
Consider the transfer of development rights from a property to one or more other
properties when:
a. The donor and receiver sites are within the same Statistical Area
b. The reduced density/intensity on the donor site benefits the City such as the (1)
provision of extraordinary open space, public visual corridor(s), parking or other
amenities; (2) preservation of an historic building or property or natural landscapes;
(3) improvement of the area's scale and development character; and /or (4)
reduction of local vehicle trips and traffic congestion; and
c. The increment of growth transferred to the receiver site complements and is in
scale with surrounding development, complies with community character and
design policies contained in this Plan, and does not adversely degrade local traffic
conditions and environmental quality.
LU 6.15
A mixed -use community that provides jobs, residential, and supporting services in close proximity, with
pedestrian - oriented amenities that facilitates walking and enhance livability.
Policies
Urban Farm and Structure (REFER TO FIGURE LU22)
W 6.15.1 Land Use Districts and Neighborhoods
Provide for the development of distinct business park, commercial, and airport-
serving districts and residential neighborhoods that are integrated to assure a quality
environment and compatible land uses. (Imp 1.1, 2.1)
LU 6.15.2 Airport Compatibility
Require that all development be constructed in conformance with the height restrictions set forth by Federal
Aviation Administration (FAA) Federal Aviation Regulations (FAR) Part 77, Caltraus
Division of Aeronautics and the Airport Environs Land Use Plan (AELUP) for John
Wayne Airport. (Imp 2.1, 3.1, 4.1, 12.1, 12.2, 19.3)
$ttsl Pditt iV-lxed Use Distftft [subarea C °MU-84 H2~ deslgnaiiom
Land Uses
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CITY OF NEWPORT BEACH .
W 6.15.23 Priority Uses
Page 7 of 12
Accommodate office, research and development, and similar uses that support the
primary office and business park functions such as retail and financial services, as
prescribed for the "CO -G" designation, while allowing for the re-use of properties for
the development of cohesive residential villages that are integrated with business park
uses. (Imp 2.1, 12.1)
LU 6.15.34 Underperforming Land Uses
Promote the redevelopment of sites with underperforming retail uses located on
parcels at the interior of large blocks for other uses, with retail clustered along major
arterials (e.g., Bristol, Campus, MacArthur, and Jamboree), except where intended to
serve and be integrated with new residential development (Imp 2.1, 34.6)
Campus Tract (Subarea B. `4biH -BY AO" designation)
Land Uses
W 6.15.45 Primary Uses
Accommodate professional office, irr�viation retail, automobile rental- errier,
betels, and rmnparablrancillary retail, restaurant, and service uses that are related to
and support the functions of John Wayne Airport, as permitted by the `IE6-8 AO"
designation,
6.i 5-25. (Irrip 2.1, 12.1)
Strategy
W 6.15.56 Economic Viability
Provide incentives for lot consolidation and the re -use and improvement of properties
located in the "Campus tract," west of Birch Street. (Imp 2.1, 34.6)
LU.6.15.+67 Automobile- Rental and Supporting Uses
Work with automobile rental and supporting uses to promote the consolidation and
visual improvement of auto storage, service, and storage facilities. (Imp 12.1, 34.6)
W 6.15.-78 Site Planning and Architecture
Encourage and, when subject to redevelopment, require property owners within the
Campus Tract to upgrade the street frontages of their properties with landscape, well-
designed signage, and other amenities that improve the area's visual quality. (Imp 12.1)
Commercial Nodes (Subarea A "CG -C" dasignaHon)
LU 6.15.89 Priority Uses
Encourage the development of retail, financial services, dining, hotel, and other uses
that support the John Wayne Airport, the Airport Area's office uses, and, as
developed, its residential neighborhoods, as well as automobile sales and supporting
uses at the MacArthur Boulevard and Bristol Street node. (Imp 2.1, 12.1, 34.6)
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CITY OF NEWPORT BEACH Page 8 of 12
Residential Vilisaes (subarea C and subarea s. "MU-B2 H2" desdmahb—N
Land Uses
LU 6.15.910 Residential and Supporting Uses
Accommodate the development of a maximum of 2,200 multi - family residential units,
including work force housing, and mixed -use buildings that integrate residential with
ground level office or retail uses, in areas and along with supporting retail, grocery
stores, and parkl ands. This rnay- o =Residential units may be developed as the
replacement of existing buildings, with a maximum of 550 units-or as infill on surface
parking lots on properties east of MacArthur Boulevard, provided that the parking is
replaced n -site. (Imp 2.1, 12.1, 12.2)
Minimum Size and Density
W6.15.101 Number and Size of Residential Villages (refer to Figure LU23)
Allow development of a maximum of four (4) mixed use residential villages, each
centered on a neighborhood park and other amenities (as conceptually illustrated in
Figure LU23). The first phase of residential development in each - village rorhoed
shall encompass at least 49 5 gross acres of land, exclusive of existing rights -of -way.
Theis 48 acres acreage may include multiple parcels provided that they are contiguous
or face one another across an existing street. The 18 an, L"airenrent may be w
Of a' a
Airport fam The "Comprehensive Plan" area shown on Figure LU23 shall be exempt
from the 5 -acre minimum, but a comprehensive plan described in Policy LU 6.15.15
shall be required.(Imp 2.1, 3.1, 4.1, 12.1, 12.2)
LU 6.15.12 Overall Density and Housing Types
Require that residential. units be developed at a minimum density of 30 units and maximum of
50 units per net acre. Net acreage shall be exclusive of existing and new rights -of-
way, public pedestrian ways, and neighborhood parks. Within these densities, provide
for the development of a mix of building types ranging from townhomes to high -
rises to accommodate a variety of household types and incomes and to promote
a diversity of building masses and scales
LU 6.15.4+13 First Phase Development Density
Require a rmrtaxna -residential density of 50 units per net acre, averaged over the first
phase for each residential village. This shall be applied to 100% of properties in the
first 'phase development area whether developed exclusively for residential or
integrating service commercial horizontally on the site or vertically within a mixed use
LU 6.15.}i14 Subsequent Phase Development Location and Density
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CITY OF NEWPORT BEACH'-
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Subsequent phases of residential development shall abut the first phases or shall face
the first phases across a street. The minimum density of residential development
(including residential mixed -use development) shall be 30 units per net acre and shall
not exceed the maximum of 50 units per net acre.
(EmP
2.1, 3.1, 4.1, 12.1, 12.2)
Strategy and Process
W 6.15.1#5. Regulatory Plans
Require the development of a regulatory plan for each residential village to coordinate
the location of new parks, streets, and pedestrian ways, set forth a strategy to
accommodate neighborhood - serving commercial uses and other amenities, establish
pedestrian and vehicular connections with adjoining land uses, and assure
compatibility with office, industrial; and other nonresidential uses. (Imp 2.1, 3.1, 4.1,
15.1)
LU 6.15.16 Boll Center and Conexant Development Plans
Require the development of -zone comprehensive plan for the Koll Center and Conexant properties, should
residential units be proposed on either property. This plan shall defines strategies for
the cohesive on -site integration of housing, parking structures, open spaces, and other
improvements with existing non - residential structures, in addition to the elements
required for all regulatory plans defined by Policy 6.15.14. (Imp 2.1, 3.1, 4.1, 15.1)
W 6.15.17 Development Agreements
Require the execution of Development Agreements for residential and mixed use development projects that
use the 550 infill units identified in Policy LU 6.15.9. Development Agreements shall
define the improvements and benefits to be contributed by the developer in exchange
for the City's commitment for the number, density, and location of the housing units.
Design and Development
Neighborhood Parks
W 6.154318 Standards
To provide a focus and identity for the entire neighborhood and to serve the daily
recreational and commercial needs of the community within easy walking distance of
homes, require dedications and improvement of at least eight percent of the gross land
area (exclusive of existing rights -of -way) or one -half acre, whichever is greater, of the
first phase . of development in each neighborhood as a neighborhood park. This
requirement may be waived by the City where it can be demonstrated that the
development parcels are too small to feasibly accommodate the .park or
inappropriately located to serve the needs of local residents, and when an in -lieu fee is
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CITY OF NEWPORT BEACH
Page 10 of 12
paid to the City for the acquisition and improvement of other properties as parklands
to serve the Airport Area.
In every case, the neighborhood park shall be at least percent of the total Residential Village
Area or one -half acre in area, whichever is greater, and shall have a minimum
dimension of 150 feet. Park acreage shall be exclusive of existing or new rights -of -way,
development sites, or setback areas. A neighborhood park shall satisfy some or all of
the requirements of the Parkhrid Dedication Ordinance, as prescribed by the
Recreation Element of the General Plan.
K1. .111111 111111
LU 6.15.4,619 Location
Require that each neighborhood park is dearly public in character and is accessible to
all residents of the neighborhood. Each park shall be surrounded by public streets on
at least two sides (preferably with on -street parking to serve the park), and shall be
linked to residential uses in its respective neighborhood by streets or pedestrian ways.
(Imp 2.1, 3.1, 4.1, 12.1, 12.2)
LU 6.15.20 Aircraft Notification
Require that all neighborhood parks be posted with a notification to users regarding proximity to John
Wayne Airport and aircraft overflight and noise.
On -Sits Recreation and Open Space
W 6.1547-21 Standards
Require developers of multi- family residential developments on parcels eight acres or
larger, to provide on -site recreational amenities. For these developments, 44 square
feet of on -site recreational amenities shall be provided for each dwelling unit in
addition to the requirements under the City's Park Dedication Ordinance and in
accordance with the Parks and Recreation Element of the General Plan. On -site
recreational amenities can consist of public urban plazas or squares where there is the
capability for recreation and outdoor activity. These recreational amenities may also
include swimming pools, exercise facilities, tennis courts, and basketball courts. Where
there is insufficient land to, provide on -site recreational amenities, the developer shall
be required to pay cash in -lieu that would be used to develop or upgrade nearby
recreation facilities to offset user demand as defined in the City's Park Dedication Fee
Ordinance.
The acreage of on -site open space developed with residential projects may be credited
against the parkland dedication requirements where it is accessible to the. public during
daylight hours, visible from public rights -of -way, and is of sufficient size to
accommodate recreational use by the public. However, the credit for the provision of
on -site open space shall not exceed 301/o of the parkland dedication requirements.
(Imp 2.1, 3.1, 4.1, 12.1, 12.2, 44.3)
Streets and Pedestrian Ways
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CITY OF NEWPORT BEACH
LU 6.15.4822 Street and Pedestrian Grid
Page 11 of 12
Create a pattern of streets and pedestrian ways that breaks up large blocks, improves
connections between neighborhoods and community amenities and is scaled to the
predominantly residential character of the neighborhoods. (Imp 3.1, 4.1, 11.1,
21.1)
W 6.15.4923. Walkable Streets
Retain the curb -to -curb dimension of existing streets, but widen sidewalks to provide
park strips and generous sidewalks by means of dedications or easements. Except
where traffic loads preclude fewer lanes, add parallel parking to calm traffic, buffer
pedestrians and provide short-term parking for visitors and shop customers., (Imp 3. 1,
4.1, 12.2, 21.1, 29.1)
LU 6.15.2924 Connected Streets
Require dedication and improvement of new streets as shown on Figure LU23. The
illustrated alignments are tentative and may change as long as the mutes provide the
intended connectivity. If traffic conditions allow, connect new and existing streets
across Macarthur Boulevard with signalized intersections, crosswalks, and pedestrian
refuges in the median. (Imp 11. 1, 12.2, 21.1)
LU 6:15.=1.25 Pedestrian Improvements
Require the dedication and improvement of new pedestrian ways as shown on
Figure LU23. The alignment is tentative and may change as long as the path provides
the intended connectivity. For safety, the full length of pedestrian ways shall be visible
from intersecting streets. To maintain an intimate scale and to shade the path with
trees, pedestrian ways should not be sized as fire lanes. Pedestrian ways shall be open
to the, public at all hours. (Imp 11. 1, 12.2, 21.12)
Parking and Loading
LU 6.15.22P26 Required Spaces for Primary Uses
Consider revised parking requirements that reflect the mix of uses in the
neighborhoods and overall Airport Area, as well as the availability of on- street parking.
(Imp 2.1)
Relationship of Buildings to Street
LU 6.15.2327 Building Massing
Require that high -rise structures be surrounded with low and mid -rise structures
fronting public streets and pedestrian ways or other means to promote a more
pedestrian scale: (Imp 3.1, 4.1, 12.1, 12.2)
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W 6.15.4528 Sustainable Development Practices
Require that development achieves a high level of environmental sustainability that
reduces pollution and consumption of energy, water, and natural resources. This may
be accomplished through the mix and density of uses, building location and design,
transportation modes, and other techniques. Among the strategies that should be
considered are the integration of residential with jobs - generating uses, use of
alternative transportation modes, maximized walkability, use of recycled materials,
capture and re -use of storm water on -site, water conserving fixtures and landscapes,
and architectural elements that reduce heat gain and loss. (Imp 3.1, 4.1, 12.2, 21.12,
23.1,25.1-27.1)
Newaort Center
LU_ Development Agreements
Require the execution of Development Agreements for residential and mixed use
development projects that use the 450 units identified in Figure LU 21.
Development Agreements shall define the improvements and benefits to be
contributed by the developer in exchange for the City's commitment for the number,
density, and location of the housing units.
LU_ Conversion of Hotel' Rooms
Consider the conversion of hotel entitlement to residential entitlement when it is
demonstrated that no additional vehicle trips will result from the conversion. Hotel
rooms existing at the time of adoption of this plan may not be converted to
residential use.
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DRAFT
ORDINANCE NO. 2006-
AN ORDINANCE OF THE CITY COUNCIL OF THE
CITY OF NEWPORT BEACH, ADDING CHAPTER
20.68 TO THE NEWPORT BEACH MUNICIPAL
CODE PERTAINING TO INCLUSIONARY HOUSING
REGULATIONS AND AMENDING SECTION
20.03.030 PERTAINING TO DEFINITIONS OF THE
NEWPORT BEACH MUNICIPAL CODE
WHEREAS, the City of Newport Beach ( "City") is a Charter City, governed
by a charter adopted by the citizens of the City; and
WHEREAS, it is a public purpose of the City and a policy of the State to
achieve a diverse and balanced community with housing available for
households of all income levels; and
WHEREAS, economic diversity fosters social and environmental
conditions that protect and enhance the social fabric of the City and are
beneficial to the health, safety and welfare of its residents; and
WHEREAS, the lack of affordable housing has a direct impact upon the
i health, safety and welfare of the residents of the City; and
WHEREAS, State law pertaining to general plans and the Housing
Element of the City General Plan require that City ordinances regulate land use
development and that the City.and its agencies otherwise use their authority in a
manner that provides an adequate supply of housing for .all economic segments
of the community; and
WHEREAS, the Q.ty ig, experiencing an increasing shortage of.housing
affordable to very low -, low- and moderate - income households and will not be
able to fully contribute to the attainment of the State housing goals or to retain a
healthy environment without additional affordable housing; and
WHEREAS, new residential development .does not provide housing
opportunities for very low -, low- and moderate- incane households due to the
high cost of land in the City; and
WHEREAS, as a result, very low -, low, and moderate-income households
are de facto excluded from many new neighborhoods, creating economic
stratification in the City detrimental to the public health, safety and welfare; and
yid
WHEREAS, an increasing number of persons in very low -, low, and
moderate - income households live in overcrowded or substandard housing and
devote an overly large percentage of their income to pay for housing; and
WHEREAS, the amount of land in the City - available for residential
development is limited; and
WHEREAS, the consumption of this remaining land for residential
development without providing affordable housing to persons of all income levels
would work counter to housing, environmental and planning policies and have a
substantial negative impact on the environment and economic climate because
(i) housing will have to be built elsewhere, far from employment centers and
therefore, commutes will increase, causing increased traffic and transit demand
and consequent noise and air pollution; and (ii) City businesses will find it more
difficult to attract and retain the workers they need; and
WHEREAS, new residential development in the City which does not
provide for affordable units aggravates the existing shortage of affordable
housing by absorbing the supply of available residential land, reducing the supply
of land for affordable housing and increasing the price of the remaining
residential land; and
WHEREAS, at the same time, new residential development contributes to
the demand for goods and services in the City, increasing local service
employment at wage levels which often do not permit employees to afford
housing in the City; and
WHEREAS, Federal and State funds for the construction of new
affordable housing are insufficient to fully address the problem of affordable
housing within the City; and
WHEREAS, the private - .housing market has failed to provide adequate
housing opportunities for very low-, low -, and moderate- income households; and
WHEREAS, on March 14, 2000 the City Council established an Affordable
Housing Task Force that was charged with recommending an appropriate
affordable housing program; and
WHEREAS, the Affordable Housing Task Force conducted an
investigation, held hearings and solicited comments from the community
regarding a range of options; and
WHEREAS, on the Affordable Housing Task Force
recommended this ordinance to the Planning Commission; and
$6
WHEREAS, on the Planning Commission held a public
hearing on this ordinance and recommended this ordinance to the City Council
for adoption; and
WHEREAS, the City is aware that there may be times when the
inciusionary housing requirements make market -rate housing more expensive;
and
WHEREAS, in weighing all the factors, including the significant need for
affordable housing, the City Council has made the decision that community's
interests are best served by the adoption of inclusionary housing regulations; and
WHEREAS, to implement the City General Plan, to carry out the policies
of the State and federal law and policy, and to ensure the benefits of economic
diversity of the residents of the City, it is essential that new residential
development in the remaining new growth areas of the City contain housing
opportunities to households of very low -, low- and moderate - income, and that the
City provide a regulatory framework which ensures development of an adequate
supply and mix of new housing to meet the future housing needs of all income
segments of the community; and
WHEREAS, the City Council finds that it is necessary to adopt an
inclusionary housing ordinance to address the City s housing crises.
NOW THEREFORE, the City Council of the City of Newport Beach,
California, hereby ordains as follows:
SECTION 1: Chapter 20.68 of the Newport Beach Municipal Code is hereby added
to read as follows:
Sections:
CHAPTER 20.68
INCLUSIONARY HOUSING REGULATIONS
Purpose
Inclusionary Housing Regulations
Credit Transfers
In -Lieu Fees
Alternatives
Exemptions
Adjustments, Waivers
Compliance Procedures
Eligibility for Affordable Units
Affordable Unit Credits
3l°
20.68.11.0 Affordable Housing Trust Fund
20.68.120 Enforcement
20.68.130 Appeals
20.68.010 Purpose
The purpose of this Chapter is to:
A. Provide a balanced residential community comprised of a variety of
housing types, designs, and. opportunities for all social and
economic segments, including very low -, low-, and moderate -
income households.
B.. Promote the City s goal to add affordable housing units to the City's
housing stock in proportion to the overall increase in neW housing
units.
C. Offset the demand on housing that is created by residential
development and mitigate environmental and other impacts that
accompany residential development by protecting the economic
diversity of the City's housing stock, reducing traffic, transit and
related air quality impacts, promoting jobs/housing balance and
reducing the demands placed on transportation infrastructure in the
region.
D. Ensure that the limited remaining developable land in the City's
planning area is utilized in a manner consistent with the City's
housing policies and needs.
20.68.020 Inclusionary Housing Regulations
A. Affordability Requirement. Unless otherwise provided in this
Chapter, all new residential development projects of eleven or more
dwelling units, designed and intended for permanent occupancy,
shall construct the following percentage of the. total number of
dwelling units within the residential development project as
affordable units restricted for occupancy by very low -, low- or
moderate - income households: (1) 11.5 percent very low-income
households; (2) 20 percent low-income households; or (3) 30
percent moderate - income households. The number of affordable
units required for a particular residential development project will be
determined only once, at the time of tentative or parcel map
approval, or for developments not processing a tentative or parcel
map, prior to issuance of a building permit, regardless of the
changes in the character or ownership of the residential
development, provided the total number of units does not change. If
51
a change in the residential development project design results in a
change in the total number of units, the number of affordable units
required will be recalculated to coincide with the final approved
residential development project
B. Calculation. In determining the number of whole affordable units
required, any decimal fraction less than 0.50 shall be rounded down
to the nearest whole number, and any decimal fraction greater than
or equal to 0.50 shall be rounded up to the next whole number. For
purposes of calculating the number of affordable units required by
this Section, any additional units authorized as a density bonus
under California Goverment Code Section 65915(b) (1) or (2) will
not be counted in determining the required number of affordable
units.
C. Design and Distribution of Affordable Units. All affordable units shall
reflect the range of numbers of bedrooms provided in the
residential development project as a whole and shall be
comparable in infrastructure (including sewer, water, and other
utilities), construction quality and exterior design to the market -rate
units. The affordable units may be smaller in aggregate size and
have different interior finishes and features than the market -rate
units in the residential development project so long as the interior
features are durable, of good quality and are consistent with
contemporary standards for new housing. The affordable units shall
.be dispersed throughout the residential development, unless
clustering is expressly authorized by the City.
D. Tenure of Affordable Units. For all affordable units provided
pursuant to this.Section, the applicant shall have the option of
selling the affordable units at an affordable housing price or renting
the affordable units at an affordable rent subject to the terms and
conditions imposed on the residential development project and the-
provisions contained in the Affordable.Housing Agreement
E. Timing. All affordable units shall be constructed and offered for
occupancy concurrently with or prior to the construction and
marketing of the market -rate units. in phased residential
development projects, affordable units may be constructed and
marketed in, proportion to the number of market -rate units
constructed and marketed in each phase of the residential
development project. if the Planning Commission determines that
extenuating circumstances exist and that the concurrent
construction of affordable units is infeasible or impractical, the
Planning Commission may waive the requirements of this
t
Subsection or impose reasonable conditions to effectuate the intent
$$
of this Subsection.
F. Duration of Affordability Requirement. Affordable units required by
this Chapter shall be legally restricted to occupancy by households
of the income levels for which the affordable units were designated
for a minimum of 30 years.
G. Conditions of Approval. Any tentative map, parcel map, use permit,
site plan review, coastal residential development permit, or other
discretionary permit approving a residential development project
subject to this Chapter shall contain conditions sufficient to ensure
compliance with the provisions of this Chapter, including the
execution of an Affordable Housing Agreement imposing, among
other things, appropriate resale controls and /or rental restrictions
on the affordable units.
20.68.030 Credit Transfers
An applicant may fully or partially satisfy the requirements of Section 20.68.020
through the use of transferable affordable unit credits created pursuant to Section
20.68.100. Credit certificates shall only be used to satisfy the requirements for
affordable units of the income category (i.e., very low -, low -, or moderate - income)
and number of bedrooms for which the affordable unit credits are issued.
20.68.040 In -Lieu Fees
A. General Requirements.
1. For residential development projects of 11 to 50 dwelling
units, the requirements of this Chapter may be satisfied by
paying a fee in4leu of constructing all or a portion of the
affordable units required by. this. Chapter. _
2. For residential development of 50 or more dwelling units, the
applicant may not pay a fee in -lieu of constructing the
required affordablee units.
13. Timing of Payment. For residential development projects that are
not phased residential development projects, the in-lieu fee shall be
paid at the time of issuance of any building permit for the residential
development project. For phased residential development projects,
payment of the in -lieu fee shall be made for each portion of the
residential development project at the time any building permit is
issued for that phase of the residential development project. When
payment is phased, the amount of the in- lieu.fee payable under this
Section shall be based upon the in -lieu fee schedule in effect at the
time the in -lieu fee is paid. )
3A
I C. Amount of Fee. The amount of the in -lieu fee shall be set by
resolution of the City Council and the amount of the in -lieu fee may
be amended from time to time to reflect changes in residential
construction costs and other conditions in the City and the region.
D. Partial Payment. Developers electing to provide a portion of the
affordable units required by Section 20.68.020 within the residential
development project, may pay an in -lieu fee for the remainder of
the required affordable units that are not provided. The in -lieu fee
shall be paid at the time of issuance of any building permit for the
residential development project.
20.68.060 Alternatives
A. Proposal. An applicant may propose one of the following alternative
Means of compliance with Section 20.68.020 by submitting an
application for discretionary approval in accordance with Chapter
20.90. and this Section.
B. Off -Site Construction Projects. An applicant may propose to
construct some or all of the affordable units required by Section
20.68.020 at a location not physically within the residential
development project in -lieu of constructing some or all of the
affordable units within the residential development project. The
Planning Commission shall approve or conditionally approve the
proposal on the basis of the application, plans, materials, and
testimony submitted f the Planning Commission finds:
That the purpose of this Chapter would be served by
implementation of the proposed alternative.
2. That construction of the off -site units in -lieu of constructing
on -site units is consistent with the Chapter's purpose.
3. That the off -site units to be constructed are located within
the City of Newport Beach and are consistent with the
requirements of Section 20.68.020.
4. That it would be infeasible or impractical to construct on -site
units.
C. Off -Site Rehabilitation Projects. An applicant may. propose to
rehabilitate existing off -site units and convert the off -site units to
affordable units in -lieu of constructing some or all of the affordable
units required to be provided under Section 20.68.020 within the
EU
residential development project. The Planning Commission shall
approve or conditionally approve the proposal on the basis of the
application, plans, materials, and testimony submitted if the
Planning Commission finds:
That the purpose of this Chapter would be served by
implementation of the proposed alternative.
2. That rehabilitation of the proposed dwelling units in -lieu of
constructing units on -site is consistent with this Chapter's
purpose.
3. That the proposed dwelling units to be rehabilitated off -site
are located within the City of Newport Beach and are
consistent with the requirements of Section 20.68.020.
4. The proposed dwelling units to be rehabilitated off -site are in
need of substantial rehabilitation.
5. That the proposed dwelling units to be rehabilitated off -site
are not already subject to affordability income restrictions.
6. That it would be infeasible or impractical to construct the on-
site dwelling units.
7. That the off-site dwelling units will be substantially
rehabilitated, such that the unit' is returned to the City's
housing supply as decent, safe and sanitary housing and
meet all applicable housing and building code requirements.
D. Land Dedication. An applicant may propose to dedicate land to the
City or City- designated local non -profit housing. developer in -lieu of
construction of some or all of the affordable units required by
Section 20.68.020. The Planning Commission shall recommend
and the.City Council shall approve or conditionally approve this
proposal if the City Council finds all of the following:
1. - That the purpose of this Chapter would be served by
implementation of the proposed alternative.
2. That dedication of land in -lieu of constructing units is.
consistent with this Chapter's purpose.
3. That the dedicated land is useable for its intended purpose
and has the appropriate general plan and zoning designation
for the development of affordable housing, is free of toxic
t�t
1
substances and contaminated soils, and is or will be fully
mproved with infrastructure and adjacent utilities.
chat the conditions of approval for the residential
levelopment project are adequate to ensure that title to the
ledicated land, or leasehights useful for the life of the
housing improvements, shall be conveyed to the City or City -
designated local non -profit housing developer before a
building permit is issued for all or any portion of the
residential development project.
5. That all property taxes and special taxes be current before
the title is conveyed to. the City or City - designated local non-
profit housing developer.
6. That the proposed land dedication meets the following
requirements:
a. The dedication includes land sufficient to construct, at
a minimum, the number of affordable units that the
applicant would otherwise be required to construct by
Section 20.68.020; and
b. The proposed land dedication has an equivalent or
greater value than the in -lieu fee that would 'be
required to be paid under Section 20.68.040 if applied
to the overall project. The value of the proposed land
dedication shall be appraised by a certified appraiser
selected by the City. The applicant shall pay for all
costs and expenses associated with the appraisal. At
the time the applicant submits the application
provided for in this Section,. the applicant shall deposit
the estimated cost and expense for the appraisal as
determined by the Planning Director. After the
appraisal is prepared, the Planning Director shall
provide the applicant with a Notice of Decision
regarding the value of the proposed land dedication
and a copy of the appraisal. If the applicant disputes
the decision of the Planning Director, the applicant
shall file an appeal in accordance with Chapter 20.95.
At the hearing on appeal, the appellate body shall
consider any material provided by the applicant
regarding the value of the proposed land dedication.
0
20.68.060 Exemptions
A. Natural Disasters. The requirements of this Chapter do not apply to
the reconstruction of any structure that has been destroyed by fire,
flood, earthquake or other act of nature provided that the
reconstruction of the site does not increase the number of
residential units.
B. Other Govemmental Entities. The requirements of this Chapter do
not apply to housing constructed by other governmental agencies.
20.68.070 Adjustments, Walvem
The City Council, at its discretion, may waive, wholly or partially, the
requirements of this Chapter and approve altemative methods of compliance with
this Chapter if the applicant demonstrates, and the City Council finds that either:
A. There is no reasonable relationship between the impact of a.
proposed development and the requirements of this Chapter, and
applying the requirement of this Chapter would take property in
violation of the United States or California Constitutions; or
B. 'There are special circumstances unique to the residential
development that justify the granting of an adjustment or waiver;
the residential development would not be feasible without the
modifications; a specific and financial hardship would occur If the
modification was not granted; and no altemative means of
compliance are available which would be effective in attaining the
purpose of this Chapter than the relief requested.
20.68.080 Compliance Procedures
A. General. Except as provided herein, entry into an Affordable
Housing Agreement, in a form approved by the City Attorney, is a
condition of any tentative map, parcel map or building permit for
any residential development for which this Chapter applies. This
Section does not apply to exempt residential development projects
or to residential development projects where the requirements of
this Chapter are fully satisfied by payment of an in -lieu fee under
Section 20.68.040 or land dedication as provided under Section
20.68.050 (D).
B. Affordable Housing Agreement The form of the Affordable Housing
Agreement will vary depending on the manner in which the
provisions of this Chapter are satisfied for a particular residential
development. All Affordable Housing Agreements should include, at
%.0.
ium, the following:
A description of the residential development project, how the
requirements of this Chapter will be met by the applicant,
and whether the affordable units will be rented or owner -
occupied;
The number, size and location of each very low -, low- or
moderate- income units;
3. Inclusionary incentives by the City (if any), including the nature
and amount of any local public funding;
4. Provisions and /or documents for resale restrictions, deeds of
trust, rights of first refusal or rental restrictions;
5. Provisions for monitoring the ongoing affordability of the units,
and the process for qualifying prospective households for
income eligibility;
6. Security provisions, such as a cash deposit, bond, or letter of
credit, adequate to complete the requirements of this
Chapter concurrently with the completion of the construction
of the residential development project consistent with
Section 20.68.020(E); and
C. Recording of Agreement. All Affordable Housing Agreements that
are acceptable to the City Attorney must be recorded against the
owner- occupied affordable units and the projects containing rental
affordable units. Additional rental or resale restrictions, deeds of
trust, rights of first refusal and /or other documents acceptable to the
City Attorney must also be recorded.. against owner - occupied
affordable units. In cases where the requirements of this Chapter
are satisfied through the development of off- -site units or off -site
rehabilitated units, the Affordable Housing Agreement must
simultaneously be recorded against the properly where the off -site
units are located and off -site rehabilitated units are located.
20.68.090 Eligibility for Affordable Units
No household shall be permitted to occupy an affordable unit designated for a
very low -, low -, or moderate - income household unless the City or its designee
determines that the household is eligible to occupy the applicable affordable unit
based on the household income, as determined in accordance with Title 25 of the
California Code of Regulations Sections 6910 through 6932: The developer shall
use an equitable selection method established in conformance with the terms of
this Chapter, which shall be neutral as to age,. race, religion, sex, creed and
ethnic origin or any other impermissible standard established by the United
States or State of California Constitution. Additionally, the selection criteria may
not distinguish between adults and children, except as provided in Federal and
State law for units designated for senior citizens.
20.68.100 Affordable Unit Credits
A. Creation. One affordable unit credit shall be issued for each
affordable unit constructed in excess of the number of affordable
units required to be constructed for the project by Section
20.68.020(A). Affordable unit credits shall be issued by the
Planning Director and shall designate a specific income category
(i.e., very low -, low -, or moderate - income) and number of bedrooms
for which they are issued.
B. Ownership and Use of Credits. Affordable unit credits are issued to
and become the possession of the project owner, who may then
use them to satisfy, the requirements of this Chapter for another
residential development project in the City. If a project owner
proposes to sell credit certificates, the parties shall first notify the
Planning Director, who will document the transfer. '
20.68.110 Affordable Housing Trust Fund
A. Trust Fund. There is hereby established a separate Affordable
Housing Trust Fund ( "Fund"). The Fund shall receive all in4ieu fees
contributed under Sections 20.68.040 and may also receive monies
from other sources.
B. Purpose and. Limitations. All monies deposited in the Fund,
together with - any .-I interest earnings on such monies, less-
reasonable administrative charges or related expenses associated
with the administration of this Section including, but not limited to,
reasonable consultant and legal expenses related to the
establishment and /or administration of the Fund and reasonable
expenses for administering the process of calculating, collecting,
and accounting for fees, shall be used or committed solely to
W
ncrease the supply of housing affordable to very low -, low -, and
moderate - income households.
C. Expenditures. Fund monies shall be used in accordance with City's
Housing Element to construct, rehabilitate or subsidize affordable
housing or assist other governmental entities, private organizations
or individuals to do so. Permissible uses of Fund monies include,
but are not limited to: (1) assistance to housing development
aS
corporations; (2) equity participation loans; (3) grants; (4) pre -home
i ownership co- investment; (5) pre - development loan funds; (6)
participation leases; (7) other public-private partnership
arrangements; (8) the acquisition of property and property rights;
and (9) construction of affordable housing including costs
associated with planning, administration, and design,. as well as
actual building or installation, as well as any other costs associated
with the construction or financing of affordable housing. The Fund
may be used for the benefit of both rental and owner - occupied
housing..
20.68.120 Enforcement
A. Penalty for Violation of Terms. It shall be unlawful for any person,
firm, . corporation, partnership or other entity to violate any
provisions of this Chapter. A violation of any of the provisions of
this Chapter or failing to comply with any of the requirements of this
Chapter shall constitute a misdemeanor; except that
notwithstanding. any other provisions of this Chapter, any such
violation constituting a misdemeanor under this Chapter, may in the
discretion of the enforcing authority, be charged and prosecuted as
an infraction.
B. Legal Action. The City may institute any appropriate legal actions or
proceedings necessary to ensure compliance with this Chapter
including, but not limited to: (1) actions to revoke, deny or suspend
any permit, including a building permit, certificate of occupancy, or
discretionary approval; (2) actions to recover from any violator of
this Chapter civil fines, restitution to prevent unjust enrichment from
a violation of this Chapter, and /or enforcement costs, including
attomeys fees; (3) actions to recover on behalf of the tenant; or to
the City in the event the tenant cannot be located, any excess rents
charged an&or enforcement costs, including attomeys fees; (4)
eviction or foreclosure; and (5) any other appropriate action for
injunctive relief or damages. Failure of any official or agency to fulfill
the requirements of this Chapter shall not excuse any person,
Owner, household or other party from the requirements of this
Chapter.
C. Remedies Cumulative. The remedies provided for herein shall be
cumulative and not exclusive and shall not preclude the City from
any other remedy or relief to which it.otherwise would be entitled
under law or equity.
41
20.68.130 Appeals
A. Appeals. Decisions of the Planning Director may be appealed to the
Planning Commission and decisions of the Planning Commission
may be appealed to the City Council.
B. Procedures. Procedures for appeals shall be as prescribed by
Newport Beach Municipal Code Chapter 20.85: Appeals.
SECTION 2: The following definitions are hereby added to Section 20.03.030 of
Title 20 of the Newport Beach Municipal Code to read as follows:
"Affordable Housing Agreement" means the agreement entered into pursuant to
Chapter 20.68 which provides legal restrictions by which the affordable units
.shall be restricted to ensure that the unit remains affordable to very low -, low
and moderate - income households, as applicable, for a period of not less than 30
years. With respect to rental units, such rent restrictions shall be in the form of a
regulatory agreement recorded against the applicable property. With respect to
owner- occupied units, such resale controls shall be in the form of resale
restrictions, deeds of trust, and/or other similar documents recorded against the
applicable property.
"Affordable Housing Price" means a sales price that is no more than 3 times the
maximum income level for very tow -, low -, and moderate - income households, as
adjusted for household size by the United States Department of Housing and
Community Development. [Is this correct?]
"Affordable Rent" means an annual rent that does not exceed 30 percent of
maximum income level for very low -, low -, and moderate4ncome households, as
adjusted for household size by the United States Department of Housing and
Community Development. [is this correct?]
"Affordable Unit' means an ownership or rental- housing unit, including senior
housing, affordable to households with very low -, low -, and moderate4ncomes as
defined in this Chapter.
"Conversion" means a change of a dwelling unit to a condominium, cooperative,
.or a similar form of ownership; or a nonresidential use.
"Low - income" means between 50% and 80% of the median in, c:ome, adjusted for
actual household size, as determined by the California Department of Housing.
and Community Development for Orange County.
"Moderate- income" means between 80% and 120% of the median income,
adjusted for actual household size, as determined by the California Department
of Housing and Community Development for Orange County. i
ul
i "Residential Development" means detached single - family dwellings, muPtiple
dwelling structures, groups of dwellings, condominium or townhouse
developments, cooperative developments, mixed use developments that include
housing units, and residential land subdivisions intended to be sold to the general
public. [Is this term consistent with its, use in other parts of the code ?]
"Very low -, low -, and moderate - income" means those income and eligibility levels
determined periodically by the California Department of Housing and Community
Development based on Orange County median income levels adjusted for family
size. Such levels shall be calculated on the basis of gross annual household
income considering household size and number of dependents, income of all
wage earners, elderly or disabled family members, and all other sources of
household income and will be recertified as set forth by local standards, and
State and Federal housing law.
"Very low- income" means 50% or less of the median income, adjusted for actual
household size, as determined by the California Department of Housing and.
Community Development for Orange County.
SECTION 3: If any section, subsection, sentence, clause or phrase of this
ordinance is, for any reason, held to be invalid or unconstitutional, such decision
shall not affect the validity or constitutionality of the remaining portions of this
} ordinance. The City Council hereby declares that it would have passed this
ordinance, and each section, subsection, clause or phrase hereof, irrespective of
the fact that any one or more sections, subsections, sentences, clauses and
phrases be declared unconstitutional.
SECTION 4: The Mayor shall sign and the City Clerk shall attest to the passage of
this ordinance. The City Clerk shall cause the same to be published once in the
official newspaper of the City, and it shall be effective thirty (30) days after its
adoption.
SECTION 6. This ordinance was introduced at a regular meeting of the City
Council of the City of Newport Beach, held on the day of 2006,
and adopted on the i day of 2006, by the following vote, wit:
AYES, COUNCILMEMBERS
NOES, COUNCILMEMBERS
ABSENTCOUNCILMEMBERS
1
tka
ATTEST:
CITY CLERK
EXHIBIT R
City Council Regular Meer Page 1 of 22
CITY OF NEWPORT BEACH
City Council Minutes
Regular Meeting
June 27, 2006 -- 7:00 p.m.
STUDY SESSION - 5:30 p.m.
CLOSED SESSION - 0:66 p.m.
r'. BOLL CALL
Present: Council Member Curry, Council Member Selich, Mayor Pro Tem Rosaasky, Mayor Webb,
Council Member Ridgeway, Council Member Daigle, Council Member Nichols
C. CLOSED SEES )N RFpnuT
City Attorney Clauson reported that Council gave authorization for the City to join in litigation with
other cities and counties to challenge a decision made about State mandated reimbursements.
D. PLEDGE OF AILWHANCE - Council Member Curry
E. INVOCATION - Reverend Peter D. Haynes, Saint Michaels & All Angels Episcopal Church .
F. PRESENTATIONS
Proclamation for Retiring AYSO Commissioner - Recreation. and Senior Services Director
Knight reviewed Marce Almaraz's accomplishments and Mayor Webb presented him with a
proclamation.
Okazaki Exchange Students - Connie Skibba, President of the Newport Beach Sister Cities
Association, discussed the student exchange program. The seven students and two chaperones
introduced themselves and what they hope to accomplish during the trip.
Centennial School District Committee Recognition - Centennial School District. Committee
Chair, Tom Anderson, recognized the Committee members in attendance and reported on their
activities for the year. He presented Council with the coloring book. He stated that Roger Folk will
be signing the coloring. book on July 24 from 11:30 a.m. to 1:30.p.m. at the Central Library. Mayor
Webb presented the Committee members with a certificate.
Boy Scouts of America Sea Scout Proclamation - Continued to the July 11, 2006 Council
meeting.
ffm
Council Member Daigle requested that the Ad Hoc Committee on Legislative Advocacy consider
sponsoring State legislation regarding regulating residential care facilities that have six or less
occupants and the concentration of the facilities. She also requested that the Committee consider
forming a coalition with other impacted cities where these residential care facilities are
Proliferating. She reported that the City currently has 20 facilities and 17 more are currently being
http:// www .city.fiewPort- beach.ca.us/.Counc .Agendas /2006/MN06- 27- 06.hun 12/1012007
City Council Regular Meet' Page 2 of 22
planned.
Council Member Selich requested a future agenda item to update the Quimby Act Fees.
Council Member Curry requested that a Charter amendment regarding an domain be placed
on the November ballot since the State did not adopt legislation regarding this issue.
Mayor Webb announced that, last Wednesday, the Transportation Corridor Agencies celebrated its
20th birthday and presented the City with a plaque. He also announced that he attended the Fire
Department's promotional pinning ceremony today for 16 individuals.
Mayor Webb reported that the first Concerts in the Park was held last Sunday and reviewed the
schedule for the summer.
Mayor Webb announced that there are 66 days until the City's 100th Birthday and provided
Centennial moments.
Mayor Webb reminded the public that there will be vehicle restrictions on Balboa Boulevard starting
at noon on July 4.
City Manager Bludau announced that the City has sponsored a fireworks display at the Newport
Dunes and stated that it will last longer in order to celebrate the City's Centennial.
L CONSENT C T TiNDAR
1. . MINUTES OF THE ADJOURNED REGULAR. AND REGULAR MEETING OF JUNE
.13, 2006. 1100 -20067 Waive reading of subject minutes, approve as written and order filed.
Study Session Minutes
Regular Meeting Minutes
2. READING OF ORDINANCES AND RESOLUTIONS. Waive reading in full of all
ordinances and resolutions under consideration, and direct City Clerk to read by title only.
0"—"" CE FOR IN'LROD CTION
3 CABLE TELEVISION: ORDINANCE ADOPTING A FRANCHISE AGREEMENT
WIT$ COX COMMUNICATIONS. 1421100 -20061 Continued to a future City Council
meeting.
Supplemental Staff Report
Staff Report
4. MULTIPLE VESSEL MOORING SYSTEM PILOT PROGRAM. [100 -20061 Adopt
Ordinance No. 2006 -15 related to Moorings.
Staff Report
6. CODE AMENDMENT NO. 2006 -004 (PA2006 -078) - AMENDMENT TO CHAPTER
20.68 (HEIGHT LEV11TS) TO ADD AN EXCEPTION FOR LIGHT STANDARDS TO
EXCEED HEIGHT LIMITS SUBJECT TO THE REVIEW AND APPROVAL OF A
USE PERMIT. [100.20061 Adopt Ordinance No. 2006 -16 approving Code Amendment
2006 -004.
htip: / /www:city- newpoit- beach. ca. us/ Counci ]AgendaS/2006/MN06_27- 06.htm 12/lO/2007
City Council Regular Mee
Page 3 of 22
Staff Report
RESOLUTIOIVC MR Annvmrn�v
6. MEASURE M SEVEN YEAR CIP. [100 -2006] 1) Adopt the Seven -Year Capita]
Improvement Program; 2) adopt Resolution No. 2006.47 affirming that the City's
Circulation Element does not preclude implementation of the regional Master Plan of
Arterial Highways; and 3) direct staff to submit the adopted Capital Improvement Program,
Maintenance of Effort certification, to the Orange County Transportation Authority to
satisfy the eligibility provisions for Measure M and Congestion Management Programs.
Staff Report
GENERAL MUNICIPAL ELECTION - NOVEMBER 7, 2006: ADOPTION OF
RESOLUTIONS CALLING THE ELECTION AND REQUESTING CONSOLIDATION
WITH THE STATEWIDE GENERAL ELECTION (CANDIDATES ONLY). [391100
20061 Adopt the following resolutions pertaining to the General Municipal Election
scheduled for Tuesday, November 7, 2006 pursuant to Section 1000 of the City Charter: a)
adopt Resolution .No. 2006 -48 Calling and Giving Notice of the Holding of a General
Municipal Election to be Held on Tuesday, November 7, 2006, for the Election of. Members of
the City Council as Required by the Provisions of the City Charter; b) adopt Resolution No.
2006 -49 Requesting the Board of Supervisors of the County of Orange to Consolidate a
General Municipal Election to be Held on Tuesday, November 7, 2006, with the Statewide
General Election to be Held on the Same Date Pursuant to Section 10403 of the Elections
Code; and c) adopt Resolution No. 2006 -50 Adopting Regulations for Candidates for Elective
Office Pertaining to Candidates Statements Submitted to the Voters at an Election to be
held on Tuesday, November 7, 2006.
Staff Report
S. AWARD OF NON - EXCLUSIVE SOLID WASTE COLLECTION FRANCHISE TO
NEWPORT COAST DEMOLITION. [441100.2006] 1) Adopt Resolution of Intention No.
2006 -51 to award a Non - exclusive Solid Waste Franchise to Newport Coast Demolition and
to set the public hearing for July 25, 2006; and 2) introduce Ordinance No. 2006.17 granting
a Non - exclusive Solid Waste Franchise to Newport Coast Demolition and pass to second
reading on July 25, 2006.
Staff Report
9. AWARD OF NON - EXCLUSIVE SOLID WASTE COLLECTION FRANCHISE TO
INTERIOR REMOVAL SPECIALIST, INC. [441100 -2006] 1) Adopt Resolution of
Intention No. 2006 -44 to award a Non - exclusive Solid Waste Franchise to Interior Removal
Specialist, Inc. and to set the public hearing for July 25, 2006; and 2) introduce Ordinance
No. 2006 -18 granting a Non - exclusive Solid Waste Franchise to Interior Removal Specialist,
Inc. and pass to second reading on July 25, 2006.
.Staff Report
10. CABLE TELEVISION. ADOPTION OF RESOLUTION, MEMORANDUM OF
UNDERSTANDING, SETTLEMENT AND MUTUAL RELEASE AGREEMENT AND
CONSENT TO TRANSFER AGREEMENT RELATING TO TE%IE WARNER AND
ADELPHIA. [421100 -2006] 1) Adopt Resolution No. 2006 -59 consenting to a transfer of a
franchise for cable television from Adelphia to Time Warner; and 2) authorize the Mayor or
the City Manager to execute any documents relating to the transfer, including but not
limited to a Memorandum of Understanding, a Settlement and Mutual Release Agreement,
and a Consent to Transfer Agreement.
Staff Report
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City Council Regular Mee: Page 4 of 22
CONTRACTS AND A REEM OUS
12. AMENDMENT #1 TO A COOPERATIVE AGREEMENT FOR THE
ADMINISTRATION OF TOTAL MAXDTUM DAILY LOADS (TIVIDIA) IN NEWPORT
BAY (C- 3621). 1381100 -20061 Authorize the Mayor to sign and execute Amendment #1 to
the 2003 Cooperative Agreement to fund Nutrient, Fecal Coliform and Toxics Total
Maximum Daily Load (TMDL) Studies & Programs in the Newport Bay Watershed.
Staff Report
13. MONITORING STATIONS INSTALLATION - APPROVAL OF PROFESSIONAL
SERVICES AGREEMENT WITH GEOMATRI% (C- 3853). 138100 -20061 1) Approve a
Professional . Services Agreement with Geomatrix of Newport Beach for water quality
monitoring services at a contract price of $62,946.50 and authorize the Mayor and City
Clerk to execute the Agreement; and 2) approve a budget amendment (06BA -079)
authorizing a transfer of .$62,946.50 from Account 7014- C5100805 (Morning Canyon
Stabilization Project) to Account 7014- C5100851 (NCWS: Miscellaneous Watershed
Activities).'
Staff Report
14. JAMBOREE ROAD REHABILITATION FROM SAN JOAQUIN HILLS ROAD TO
FORD ROAD: - AWARD OF CONTRACT (C- 3826). [3811004006] 1) Approve the plans
and specifications; 2) award the contract (C- 3826) to All American Asphalt for the total bid
price of $1,061,061 and authorize the Mayor and the City Clerk to execute the contract; 3)
establish an amount of $100,00o . to cover the cost of unforeseen work; and 4) approve a
budget amendment (06BA -082) appropriating $400,000 from the AHRP fund balance to
Account No. 7285- C5100832 and $781,061 from the Measure M Turnback fund balance to
Account No. 7281- C5100832.
Staff Report
15. COAST HIGHWAY CHANNE�rZ TION- CORONA DEL MAR - COMPLETION AND
ACCEPTANCE OF CONTRACT (C- 3558). (381100 -2606] 1) Accept the work; 2)
authorize the City Clerk to file a Notice of Completion; 3) authorize the City Clerk to release
the Labor and Materials bond 35 days after the Notice of Completion has been recorded in
accordance with applicable portions of the Civil Code; and 4) release the Faithful.
Performance Bond one (1) year after Council acceptance.
Staff Report
16. MORNING CANYON STABILIZATION - COMPLETION AND ACCEPTANCE OF
CONTRACT (C- 3517). 138110020061 1) Accept the work; 2) authorize the City Clerk to
file a Notice of Completion;. 3) authorize the City Clerk to release1he Labor and Materials
`bond 35 days after the Notice of Completion has been recorded in accordance with applicable
portions of the Civil . Code; and 4) release the Faithful Performance Bond one (1) year after
Council acceptance.
Staff Report
17. GEOTECHNICAL AND mmmtm C TESTING AND EVALUATION, INSPECTION
AND CONSTRUCTION MANAGEMENT, AND LANDSCAPE DESIGN SERVICES -
APPROVAL OF ON -CALL PROFESSIONAL SERVICES AGREEMENTS (C- 3854).
1381100- 200061 1) Approve Professional Services Agreements with Arroyo Geotechnical and
LaBelle Marvin Inc. for on -call geotechnical and materials testing and evaluation services
and authorize the Mayor and City Clerk to execute the Agreements; 2) approve a
Professional Services Agreement with WEC Corporation for on -call inspection and
construction management services and authorize the Mayor and City Clerk to execute the
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City Council Regular Mee Page 5 of 22
Agreements; and 3) approve Professional Services Agreements with TCLA, Inc. and David
Volz Design for on -call landscape design services and authorize the Mayor and the City
Clerk to execute the Agreement.
Staff Report
18. LEGAL ADVERTISING BID FOR FISCAL YEAR 2006.2007. [321100 -20061 Accept the
bid of the Daily Pilot and authorize a purchase order- for the one -year period of fiscal year
2006 -2007.
Staff Report
19. 2005 -2006 CITYWIDE SLURRY SEAL PROGRAM - AWARD OF CONTRACT (C-
3800). [381100.20061 1) Approve the plans and specifications; and 2) award the contract
(C -3800) to Pavement Coatings Company for the total bid price of $471,946 and authorize
the Mayor and the City Clerk to execute the contract.
Staff Report
AUSCELLAN O S
20. DOVER DRIVE, NORTH OF CLIFF DRIVE SIDEWALK - MITIGATED NEGATIVE
DECLARATION (C- 3652). [381100 -20061 Adopt Resolution No. 2006 -54 approving the
Mitigated Negative Declaration (MND) for Dover Drive Sidewalk Project.
Staff Report
21., PURCHASE OF A SIX -POST MOBILE HOIST SYSTEM FOR .THE EQUIPMENT
MAINTENANCE DIVISION. [100 -20061 1) Approve the purchase of a six -post, 90,000
pound capacity mobile lifting system and accessories from Automotive Resources, Inc. at a
cost of $60,228.96; and 2) approve a budget amendment (06BA -080) to transfer $60,228.96
from unappropriated Internal Service Fund reserves into Account 6110 -9200 to fund the
purchase.
Staff Report
22. SHORELINE OBSERVATION SYSTEM (SOS). [100 -20061 1) Approve the purchase .
and installation of the Newport Beach Shoreline Observation System (SOS); and 2) approve
the sole source purchase of cameras and ancillary equipment from ISMS Inc., Shakespeare
Composite Structures Mfg., and Pro 911 Systems.
Staff Report
23. BUDGET AMENDMENT FOR SIGNATURE VERIFICATION. [100 -20061 Approve a
budget amendment (06BA -078) from General Fund Unappropriated Fund Balance, 010 -3605
in the amount of $51,653 to Election Services, 0220 -8080, to pay the cost. for the County of
Orange Registrar of Voters to verify the signatures on the Debt initiative and the Greenlight
II initiative petitions.
Staff Report
27. SOBER LIVING BY THE SEA - USE PERMIT NO. 2005 -031, OFFSITE PARKING
AGREEMENT NO. 2005-05 (C- 3836), MODIFICATION PERMIT NO. 2005-133 - 2811
VILLA WAY (PA 2005 -136) (contcl. from 4111106 and 5/23106). [381160 -20061 Continue
to August 22, 2006.
Staff Report
28. BUDGET AMENDMENT TO ACCEPT A CHECK FROM THE NEWPORT BEACH
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City Council Regular Meer, Page 6 of 22
LIBRARY. FOUNDATION AND APPROPRIATE FUNDS . FOR FY 2005/2006
EXPENDITURE ACCOUNTS. [100.2006] Approve a budget amendment (06BA -081) to
increase revenue estimates by $11,000 in Account No. 4090 -5893 (Library Foundation
Donations) and increase expenditure estimates by the same amount in Division 4090
(Foundation).
Staff Report
Motion by Mmr Pro T m RosandW to approve the Consent Calendar, except for the items
removed (11, 24, 25 & 26); and noting the continuance of Item 3.
The motion carried by the following roll call vote:
Ayes: Council Member Curry, Council Member Selich, Mayor Pro Tem. Rosansky, Mayor Webb,
Council Member Ridgeway, Council Member Daigle, Council Member Nichols
Y4 a �DII_al, 1 11 _ye1, 1 ,: I
11. CONTRACT FOR PURCHASE AND INSTALLATION OF SHADE STRUCTURES AT
BONITA CANYON SPORTS PARK (C -3849) (cunt, from 6J13/06). [381100 -2006]
Staff Report
Recreation and Senior Services Director Knight reported that the shade structures will
service the ball field bleachers and, the picnic areas, and explained why the Parks, Beaches,
and Recreation Commission did not favor the plan.
Discussion ensued amongst Council relative to whether the. shade structures were
necessary.
Motion by Council M tuber Da1gk to approve the'contract with United Sports Surfacing
of America for the purchase and installation of shade structures at Bonita Canyon Sports
Park in the amount of $58,706.
Emery Mullner, Newport Beach Little League, spoke in support of the shade structures.
The motion carried by the following roll call vote:
Ayes: Council Member Curry, Council Member Selich, Mayor Pro Tem. Rosansky, Mayor
Webb, Council Member Ridgeway, Council Member Daigle, Council Member Nichols
24. CERTIFICATION OF THE PETITION ENTITLED "VOTER APPROVAL FOR
MAJOR DEVELOPMENTS OVER "AS BUILT CONDITION" OF CITY". [391100 -2008]
Staff Report
Phil Arst, Greenlight spokesperson, questioned the need for the 30 day delay in order to
study the initiative since he believed that this would delay the process.
John Nelson expressed his opposition to the Greenlight II initiative.
City Attorney Clauson confirmed that the petition is being certified tonight, she has 30 days
to come back to Council with a report, and this is enough time for Council to place the
initiative on the November ballot.
Motion by Council Member Ri to 1) approve the certification of the petition
entitled "Voter Approval for Major Developments Over "As Built" Condition of City" from
the Registrar of Voters, County of Orange, as presented by the City Clerk; and 2) direct staff
to report back to Council on or before Tuesday, July 25, 2006 with the impacts of the
initiative on municipal operations pursuant to Council action taken on January 24, 2006
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and with the necessary actions required by Election Code Section 9215.
The motion carried by the following roll call:vote:
Ayes: Council Member Curry, Council Member Selich, Mayor Pro Tern Rosansky, Mayor
Webb, Council Member Ridgeway, Council Member Daigle, Council Member Nichols
25. NEWPORT ISLAND CHANNELS OLOID PROJECT - CEQA DETERMINATION (C-
3730). (381100 -20061
Staff Report
Jim Hilliard, representing the Newport Island Board of Directors, thanked Council and staff
for working with them and listening to their concerns.
Motion by Mayor Pro Tom Rosansky_ to abandon the project indefinitely.
The motion carried by the following roll call vote:
Ayes: Council Member Curry, Council Member Selich, Mayor Pro Tem Rosansky, Mayor
Webb, Council Member Ridgeway, Council Member Daigle, Council Member Nichols
26. ACCEPTANCE .OF. ADDITIONAL URBAN AREA SECURITY INITIATIVE
FUNDING TO ENHANCE THE HVIPLEMENTATION OF THE OCILJ COPLINH
DATA SHARING PROJECT. (100 -20061
Staff Report
In response to Council Member Nichols' questions, Police Chief McDonell explained the
purpose of the COPLM Data Sharing Project and which entities share information.
Motion by Council Member Nichols, to 1) on behalf of the Integrated Law & Justice
Agency of Orange County (ILJAO.C), accept for administrative purposes, Urban Area
Security Initiative funding in the amount of $1,000,000 from the cities of Anaheim.and
Santa Ana (Grant Administrators) for the.purpose of enhancing the implementation of the
COPLINK Data Sharing Project; and 2) authorize the Administrative Services Director to
place the funds in the appropriate revenue and expenditure accounts consistent with this
action.
The motion carried by the following roll call vote:
Ayes: Council Member, Curry, Council Member Selich,. Mayor Pro Tern Rosansky, Mayor
Webb, Council Member Ridgeway, Council Member Daigle, Council Member Nichols
Mayor Webb noted that a majority of the audience is in attendance for a portion of Item 33 (General Plan
Update) that relates to rezoning R.2 to R.1 in the West Newport and Peninsula areas: Without objection,
he recommended that this portion of the item be taken out of order.
33. GENERAL PLAN UPDATE: LAND USE CIRCULATION AND HOUSING
ELEMENTS. (68/100.20061
Staff Report
Att. 1- Memo from EIP Associates on Airport Area Policies
Att. 2 - Letter from Harbor Day School
Att. 3 - Land Use Categories and Table
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Att. 4 - Land Use Map B &W (Full size color version in City Clerk's Office for viewing)
Att. 5 - Revised Housing Element Table H30
Att. 6 - Draft Inclusionary Housing Ordinance
Att. 7 - Sample Affordable Housing Implementation Plan (AHIP)
Att. 8 - Housing Element Policy Comparison Table (Rill size version in City Clerk's Office
for viewing)
Supplemental Staff Report
Attachment - Complete Set of Draft Land Use Plan Maps (Full size color version in City
Clerk's Office for viewing)
Motion by Council Member Ridg way to not change the current residential land use
designations in the West Newport and Peninsula areas.
Mayor Webb opened the public hearing.
Council Member Ridgeway explained that the intent of the proposed rezoning was to try to
create owner - occupied units.
George Shroeder stated that the property owners appreciate Council's motion and the
respect of their property rights. He noted that the property owners also want to improve the
area and would support more code enforcement and higher fines to make properties
compliant.
Ed Vandenbossche pointed -out that it is the property owners that call the police on the
renters. He stated that he lives there and relies on this source of income.
Mayor Webb closed the public hearing.
The motion carried by the following roll call vote:
Ayes: Council Member Curry, Council Member Selich, Mayor Pro Tem Rosansky, Mayor
Webb, Council Member Ridgeway, Council Member Daigle, Council Member Nichols
37. COUNCIL BUILDING COMMITTEE RECOMMENDATIONS REGARDING ,CITY
HALL PROJECT. PLANNING ISSUES. !36 1100 -20061
Motion by Mayor Webb'to consider Item 37 (City Hall Project Planning Issues) out of
order and continue this item in order for a study session to be held so Council can hear
opinions and presentations relative to using a park site for the City Hall site.
Substitute motion by Mayor Pro Tem Rosansky to reconvene the City Hall Site Review
Committee and have the Committee review the proposed site and plan prior to further
action by the City Council.
Mayor Pro Tem Rosansky stated that the Committee should operate under the same
guidelines when it reviewed the other sites, therefore, a presentation by Mr. Ficker to the
Committee and providing them with the proposal is not necessary. He added that the
Committee would not be criti4uing the existing building at the proposed site and that the
site- should never have been taken off the table for evaulation.
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Council Member Ridgeway expressed the opinion that the Committee would recommend the
site. He pointed out that construction costs are rising and Council has a fiduciary duty to its
citizens to move forward. He believed that the site plan and location should be analyzed by
the Building Ad Hoe Committee. He believed that this should be done during the regular
meeting, not study session. He added that the social and economic impacts to the Peninsula
need to analyzed by staff if City Hall is moved. He believed that the City would be going
back on its word to the community if it did this.
Council Member Curry believed that, even though he is skeptical of the site, Council needs
to look at the proposal, compare it to the existing City Hall, and receive answers to many
questions about the proposed site. He explained why the Daily Pilot's term "free site" is
inaccurate.
Council Member Nichols expressed support for having Mr. l}cker present his proposal to
Council. He noted that.the site can be rezoned.
Council Member Selieh agreed that the site doesn't need to be sent back to the Committee
because they would conclude that the site is valid. However, he emphasized that this is a
policy matter of whether the City wants to trade parkland for a central location for City
Hall.
Mayor Pro Tem Rosansky withdrew his motion, but recommended not limiting the
presentation to only Mr. FIeker's proposal.
Substitute motion by Cmumil NEember to direct staff to, provide a staff report at
the July 25 meeting that evaluates the impact of the loss of parkland, the access and traffic
issues, and the efficacy of the proposed design; discusses the history behind how the land
became a park; and evauuates the property value of the existing site.
Council Member Daigle noted that this is now a different process than what has been
followed and emphasized that the parties of the Circulation Improvement and Open Space
Agreement ( CIOSA) need to also be consulted since this is dedicated open space.
Mayor Webb agreed that Mr. l}eker should be allowed to explain his proposal, but suggested
that this be done during the study session. He also agreed that anyone should be allowed to
make a presentation to Council.
Debra Allen, Parks, Beaches and Recreation Commissioner, provided Council with a
handout of the plans for the park and reviewed the result of a survey of the Corona del Mar
Residents Association. She believed that the decision should be made during a regular
meeting and that this is a policy issue. She provided a history of the site and discussed the
issues associated with the donor and the concern for losing the current donor money. She
believed that, if Council decides to keep it as a park, the City should provide funding to
develop it.
John Nelson, City Hall Site Review Committee, believed that the Committee .shouldn't
review the site because the choice is ultimately Council's. He stated that the City needs a
new City Hall and expressed concern about the rising costs. He urged Council to move
forward.
Bernie Svalsted urged Council to stop procrastinating. He noted that the park issue has
been going on since 1996 and provided a history of the parksite and the CIOSA agreement.
He believed that staff should be directed to look at the costs and environmental concerns on
the proposed site and look into leasing the Corporate Plaza West site for 99 years with the
option to buy.
George Jeffries stated that he contacted a Cal Tech graduate and discussed the
environmental problems that may occur at the existing City. Hall site. He believed that
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City Council Regular Meer Page 10 of 22
Council should disqualify the existing site pending an independent geotechnical study.
Lucille. Kuehn noted that she was an advocate for making the site above the Central Library
a park; however, she could make a different choice. She agreed that a new City Hall is
needed.
Barry Allen reminded Council that the proposed site was already approved to become a park .
and that this is being considered because the Daily Pilot created a controversy.. He asked
why Council would consider taking .away parkland rather than condemn The Irvine
Company's office building for the new City Hall.
Nancy Gardner emphasized that the proposed site has already been declared a park and
noted that the General Plan states that open space needs to be replaced if it is taken away.
Bruce Naught stated that this area is being discussed because it's the center of the City and
suggested having a third party conduct a feasibility study on the proposed site. He believed
that the existing City Hall site is a good location for a park.
Bill Ficker recommended that Council allow him to do a presentation at a Council meeting.
He discussed some of the advantages of his proposal, noted that his plan tries. to preserve as
much of the parkland as possible for a natural park, and suggested converting the current
site to an urban area with open space.
Allan Beek noted that the proposed building plan is not relevant to site selection, the City
has the power of eminent domain, Mr. Ficker's remarks about the efficiencies of City Hall
have been neglected, and no city has made a policy to sell parkland .to make money. He
believed that the City shouldn't sell the existing property to build residential units, but
should build the park on it instead.
Jan Vandersloot noted that he has been involved with the park issue since 1992 and asked
that Council abide by the CIOSA agreement. He stated that development agreements are
immune from challenges and referendums, and believed that the City needs to provide a
comparative view property if the park is taken away. He believed that a geoteehnical study
needs to be conducted on the proposed site.
Mayor Webb. asked that Council consider having Mr. Ficker make a presentation at the July
11 study session.
Amended substitute motion by Council Member to include allowing Mr. Ficker
to make a presentation at the July 11 study session.
Council Member Selich believed that the policy issue of trading a central location for a
dedicated park site needs. to be answered first. He believed that the location was not
considered for a reason and pointed out that the park already has plans and funding. He
reviewed his point system which concluded that the current site is a superior location over
the park site.
Substitute motion by rQuacil Member Seli h to 1) based on the site assessment study
from the citizen City Hall Site Review Committee, and the written response from The Irvine
Company,, affirm that the location of the new city hall and associated civic center will be on
the current site; and 2) approve $25;000 for entering into a contract with a new architectural
Am to provide three (3) alternative exterior design concepts based on the existing floor plan.
Council Member Curry stated that he shares Council Member Selich's concern about trading
parkland, but believed that Council should take the extra 30 days and allow the proposal to
be aired so people can judge for themselves and .Council can make a decision.
Mayor Pro Tem Rosansky pointed out that there has been no discussion on the second part
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City Council xeguiar Meet+
of the motion.
assessment study from the citizen City Hall
response from The Irvine Company, affirm
associated civic center will be on the current site.
The motion failed by the following roll call vote:
rage i i or za
icil Member Selich to 1) based on the site
Site Review Committee, and the written
that the location of the new city hall and
Ayes: Council Member Selich, Mayor Pro Tem. Rosansky, Council Member Ridgeway
Noes: Council Member Curry, Mayor Webb, Council Member Daigle, Council Member
Nichols
City Attorney Clauson suggest that a study session be conducted on July 11 to discuss the
alternative site and receive presentations from Mr. Ficker and the Parks, Beaches and
Recreation Commission. She indicated that staff can provide preliminary information on
what would be required to build the City Hall on the site. Further, on July 25, Council can
decide whether to accept the site with a policy decision to trade the park site for the City
Hall site.
City Manager Bludau expressed concern about the timeline to get the next agenda out and
that having a month would be more realistic. He reported that Council directed the City
Hall Site Review Committee to not look at any site that would involve condemnation and
that the proposed site was the only one they were not permitted to review. He received
confirmation that staff can work with the Building Ad Hoc Committee to generate the
report.
Amendment to the amended motion by Council Member Curry to continue this issue
to. the July 25 Council meeting, with staff bringing back a report that discusses the park
structure, the history of its designation as a park, the legal history of it becoming a park, the
access and traffic issues, the; parking issues, the efficacy of using the park_ as a City Hall, the
value and fiscal analysis of the existing site; and the limitations of selling the current
site; and, at the July 11 study session, have open discussion about the alternative site and
have it include presentations by Mr. Ficker relative to his proposal and the Parks, Beaches
and Recreation Commission relative to the proposed park.
The motion carried by the following roll call vote:
Ayes: Council Member Curry, Council Member Selich, Mayor Pro Tern Rosansky, Mayor
Webb, Council Member Ridgeway, Council Member Daigle, Council Member Nichols
H. PUBLIC HEARINGS (Continued)
Motion by Council Member Cm= to consider the Business Improvement District items (Items
29, 30, 31 & 32) at the same time.
29. CORONA DEL MAR BUSINESS IMPROVEMENT DISTRICT RENEWAL:
CONDUCT PUBLIC HEARING AND ADOPT RESOLUTION FOR RENEWAL OF
THE BUSINESS IMPROVEMENT DISTRICT FOR FISCAL YEAR 2006 -2007. [I00-
20061
Staff Report
30. MARINE AVENUE BUSINESS IMPROVEMENT DISTRICT RENEWAL: CONDUCT.
PUBLIC HEARING AND ADOPT RESOLUTION FOR RENEWAL OF THE
BUSINESS IMPROVEMENT DISTRICT FOR FISCAL YEAR 2006.2007. [100 - 20061
Staff Report
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City Council Regular Meet+•
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31. RESTAURANT ASSOCIATION BUSINESS IMPROVEMENT DISTRICT RENEWAL:
CONDUCT PUBLIC HEARING AND ADOPT RESOLUTION OF CONFIRMATION
FOR RENEWAL OF THE BUSINESS IMPROVEMENT DISTRICT FOR FISCAL
YEAR 2007. [100.2006]
Staff Report
32. BALBOA VILLAGE BUSINESS IMPROVEMENT DISTRICT RENEWAL: CONDUCT
PUBLIC HEARING AND ADOPT RESOLUTION OF CONFIRMATION FOR
RENEWAL OF THE BUSINESS IMPROVEMENT DISTRICT FOR FISCAL YEAR
2006- 2007. [100.2006]
Staff Report
Assistant City Manager Wood reported that the City has not received protests for any of the
Business Improvement Districts.
Mayor Webb opened the public hearing. Hearing no testimony, he closed the public hearing.
Motion by Council Member RidoeyM to (Item 29) adopt. Resolution No. 2006 -55
confirming the levy of the Corona del Mar Business Improvement District assessment for
the 2006 -2007 fiscal year since the protests represented less than 50 percent of the total
assessment amount; (Item 30) adopt Resolution No. 2006 -56 confirming the levy of the
Marine Avenue Business Improvement District assessment for the 2006 -2007 fiscal year
since the protests represented less than 50 percent of the total assessment amount; (Item
31) adopt Resolution No. 2006 -57 confirming the levy of the Restaurant Association
Business Improvement District assessment for the 2006 -2007 fiscal year since the protests
represented less than 50 percent of the total assessment amount, 'and (Item 32) adopt
Resolution No. 2006 -58 confirming the levy of the Balboa Village Business Improvement
District assessment for the 2006 -2067 fiscal year since the protests represented less than 50
percent of the total assessment amount;
The motion carried by the following roll call vote:
Ayes: Council Member Curry, Council Member Selich, Mayor Pro Tem. Rosansky, Mayor
Webb, Council Member Ridgeway, Council Member Daigle, Council Member Nichols
Mayor Webb recessed the meeting at 9:40 p.m. and reconvened the meeting at 9:55 p.m.
Without objection, Mayor Webb requested that Item 35 (Budget Adoption) be taken out of order.
O. CONTINUED BUSINESS (Continued)
35. 2006 -07 BUDGET ADOPTION. [100 -2006]
Staff Report
City Manager Bludau reported that the proposed operating budget is $164.8 million and the
Capital Improvement Program budget is $41.1 million. He noted that four study sessions to
review the budget and checklist items were held.
Council Member Ridgeway expressed support for the $80,000 budget item for the OASIS
Senior Center conceptual plans.
Following discussion, it was the consensus of Council to provide $50,000 of funding to the
Restaurant Association for the First Annual Newport Beach Restaurant Week, and $9,900
of funding to Michaels Media for the production of Your Newport Today.
Mayor Webb noted that he supports providing funding for the Conference for Women, as
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City Council Regular Meer- Page 13 of 22
long as "Newport Beach" is included.in the conference title.
Motion by Council Member Rideewav to adopt Resolution No. 2006 -59, approving the
City's 2006 -07 Budget, as amended by the approved budget checklist items.
Bill Shaver, Friends of OASIS, discussed the condition of the Senior Center and expressed
appreciation for the budget allocation; however, he noted that Ed Romeo's previous estimate
was $129,000.
City Manager Bludau indicated that he talked with Mr. Romeo who deleted some funding
items. He noted that Public Works Director Badum believed that $80,000 was sufficient,
but pointed out that Council will be approving the architect and can ask for more money at
that time if needed.
Shari Drewry, Restaurant Association representative, thanked Council for the funding for
Restaurant Week.
Don Krotee, President of the Newport Heights Improvement Association, thanked
Council for. funding the traffic calming measures for the communities of Cliff Haven and
Newport Heights. He requested that some of the temporary measures be put into place so
the community can provide feedback. Council Member Daigle reported that the Council
Member for this district will be making an ongoing commitment to this program.
The motion carried by the following roll call vote:
Ayes: Council Member Curry, Council Member Selicb, Mayor Pro Tem. Rosansky, Mayor
Webb, Council Member Ridgeway, Council Member Daigle, Council Member Nichols
33. GENERAL PLAN UPDATE: LAND USE, CIRCULATION AND HOUSING
ELEMENTS. !681100 -20067
Staff Report
Att. 1- Memo from EIP Associates on Airport Area Policies
Att. 2 - Letter from Harbor Day School
Att. 3 - Land Use Categories and Table
Att. 4 - Land Use Map B &W (Full size color version in City Clerk's Office for viewing)
Att. b -. Revised Housing Element Table H30
Att. 6 - Draft Inclusionary Housing Ordinance
Att. 7 - Sample Affordable Housing Implementation Plan (AHIP)
Att. 8 - Housing Element Policy Comparison Table (Full size version in City Clerk's Office,
for viewing)
Supplemental Staff Report
Attachment - Complete Set of Draft Land Use Plan Maps (Full size color version in City
Clerk's Office for viewing)
Land Use Element
City Manager Wood discussed the Transfer of Development Rights Policy and reviewed the
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City council Kegular Meetir
rage 14 or LL
Planning Commission's recommendations. She reported that the approval process is not
finalized in the General Plan, but would occur during the zoning process to implement the
General Plan. She noted that a General Plan Amendment would not be required with this
Policy, as long as the project stays within the development limit set by the General Plan and
stays in the same statistical area.
Purport Area Policies
Council Member Ridgeway reported that he has a conflict in interest and left the dais.
Assistant City Manager Wood referenced and discussed proposed Policy LU 6.15.5 relative
to the Campus Tract. Without objection, Council Member Daigle requested that a
requirement be added to this section that allows for discretionary review by the Planning
Commission for automobile uses, even though aesthetic concerns are discussed in LU 6.15.8.
Council Member Curry expressed concern that the policy may have a discriminatory effect
on the Saunders property and requested that Council continue this policy. in order to receive
their input. Assistant City Manager Wood indicated that they have not heard from the
property owner and the public hearing is open until Council closes it and takes action on the
General Plan. She emphasized that additional changes at this point impacts the analysis
that has already been conducted relative to Charter Section 423 and that time may run out
to put this on the November ballot. She indicated that, if the Saunders property were used
for mixed use residential development, trips would only be reduced if it was developed at a
density that would eliminate enough of the existing uses.
Assistant City Manager Wood confirmed that Council made a determination relative to the
65 Community Noise Equivalency Level (CNEL) line. Council Member Selich pointed. out
that there's 'a limited number of residential opportunities available and that the City should
concentrate having them in more desirable areas. He referenced LU 11" and believed that the
Campus strip should not have mixed use across from John Wayne Airport (JWA). He agreed
that this was discussed previously and that he is not in favor of reversing that decision.
Mayor Webb noted that residential use has never been allowed in this tract and the issue
was discussed a few months ago and approved by Council.
In response to Council questions, Assistant .City Manager Wood confirmed that hotels are
Permitted in the airport area under the AO zoning, but she will have the map corrected to
reflect this. She indicated that she is not sure whether the 65 CNEL line impacts hotels.
She reported that, in an effort to reduce trips and comply with.the Airport Land Use
Commission's comments about the noise contour, the number of residential units and the
land area were reduced. She emphasized that the idea behind having residential units is to
have residential villages and smart growth.
It was the consensus of Council to not include mixed use outside the 65 CNEL line, but
allow hotels in the AO zoning.
Assistant City Manager Wood indicated that policies were generated to respond to Airport
Land' Use Commission comments about becoming a consistent agency. She indicated that
the Planning Commission made changes relative to the noise contour that were for
clarification and not substantive. Council Member Daigle noted that "consistent agency"
and "conforming agency" hasn't been defined and expressed concern about what happens if
they change the 65 CNEL line. City Manager Bludau reported that Allen Murphy of JWA
will provide definitions and told him that they are willing to stipulate that the reference line
is the line that exists today.
Assistant City Manager Wood reported that the Planning Commission requested that Policy
LU 6.15.2 repeat that residential units will not be allowed within the 65 CNEL line.
Assistant City Manager Wood reviewed Policies LU 6.15.11 and LU 6.15.16 which deal with
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the Koll and Conexant properties. She further explained why the, properties are special
cases and reported that she is working with the property owners and ROMA Design Group
so a staff report can be presented to the Planning Commission on July 6.
Regarding the World Premier Investments site, Assistant City Manager Wood reported that
the Planning Commission indicated that they would evaluate a policy that allows the City to
count a portion of an adjacent, joint use site towards the five acres that are, required for the
first phase of a village. She added that the proposal is to have a minimum 10 acres in order
to have a village and that a plan will also need to be provided in order to qualify for the first
phase. She clarified that the policy would not be specific to this site.
Council Member Daigle expressed support for the Koll and Conexant policies and taking a
look at the World Premier Investments proposal.
Assistant City Manager Wood reviewed the corrections to Policy LU 6.15.17.
Phil Bettencourt, representing Brookfield Homes, reported that they are still interested in
developing their property at Spruce and Quail, are still preliminarily able to meet the
development standards outlined in the General Plan, and can assimilate a new right -of-
way. Further,. their project is about 11.5 acres.
Sandra Genis, speaking on behalf of Greenlight and SPON, compared .the commercial
square footages in Tables Al and A2 of the March 27 draft and the Environmental Impact
Report. Assistant City Manager Wood stated that MU -B2 in Table LUl provides options for
residential and commercial uses. She reported that language was added to Policy LU
6.15.10 that deals with mixed uses and trips in order to be trip - neutral. She indicated that
the square footage depends on. how the property owners choose to use the General Plan
entitlements.
Phil Arst received clarification from Assistant City Manager Wood that hotel conversions
only apply in the Newport Center Area, not the Airport Area. He took issue with possibly
creating more .traffic in Newport Center due to the .conversions and that this is not
accounted for in the traffic study. He believed that no exceptions should be allowed and that
transfer development rights violate Charter Section 423.
Newport Center Area Policies
Assistant City Manager Wood reviewed the proposed policies and the Planning
Commission's addition to the Conversion of Hotel Rooms Policy related to lost
revenue/Transient Occupancy Tax (TOT) resulting from the conversion. She added that this
applies to future .hotel entitlements, not existing hotel rooms, and clarified that this is in
addition to the 450 units already authorized.
In response to Council questions, Planning Director Temple confirmed that, in order to do
the conversion, the property owner would need to amend their site plan. Assistant City
Manager Wood indicated that the 450 units are spread throughout Newport Center (Figure
LU9). Council Member Selich recommended showing this as multi- family residential
instead of mixed use.
Phil Arst believed that the conversion of hotel rooms to dwelling units violates Greenlight
and that The Irvine Company is getting special dispensation.
Sandra Genis asked if the conversion deals with peak trips or average daily trips, and asked
that the impacts to water, schools, and parks also be considered. She noted that the City
will not receive park fees if subdivisions aren't involved..
Assistant City Manager. Wood reported that the Planning. Commission recommended
language that requires a development agreement for conversions of hotel. rooms. She
indicated that the municipal code already requires a development agreement for timeshares
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City Council Regular Meetr rage to or ca
and fractional units. She confirmed that the policy already includes language relative to
-being traffic neutral; however, if the dwelling units are increased beyond the base level that
the General Plan allows, Charter Section 423 would apply. Council Member Selich
suggested that the conversion policy be deleted..
Dan Miller, The Irvine Company, stated that they are considering a plan for the San
Joaquin area and noted that this would provide them the flexibility to convert some of the
entitled hotel rooms to residential units. He stated that they understand that all the issues
Will be handled in the development agreement.
City Attorney Clauson indicated that, if the conversion was within the permitted units in
the General Plan, Charter Section 423 would not apply; however, Mr. Arst is probably
correct that Charter Section 423 would apply if there are more than 450 units. Council
Member Selich .recommended that additional analysis be included in the General Plan
Update relative Charter Section 423.
Corona del Mar
Assistant City Manager Wood reported that the property.owner of the three properties at
the far east end of Corona del Mar on Coast Highway was contacted and agreed to the
change of designation for the vacant lots from neighborhood - commercial to multi - family
residential, but would like the third lot to remain neighborhood - commercial.
Council Member Nichols asked if the residents can vote on the commercial designation along
Coast Highway. Assistant City Manager Wood discussed the special policy, for Corona del
Mar to allow existing non - conforming structures to remain and added that this has already
been discussed by the Planning Commission and Council. It was the consensus of Council to
not change the special policy.
Harbor Dap School
Assistant City Manager Wood indicated that the school would like to expand the facility but
not the student population. She reported that staff is recommending that the designation be
private - institution with a FAR of .35. There were no objections from Council.
Land Use C_atgory Table and Man
Senior Planner Ramirez utilized a PowerPoint to explain the land use mapping categories.
New ResidentW Subdivision
Senior Planner Ramirez reported that the New Residential Subdivision Policy was drafted
to limit any new additional dwelling units due to Charter Section 423. Council Member
Daigle believed that this policy was due to the Belcourt Project and that this should only
pertain to planned communities and not be Citywide Assistant City Manager Wood
indicated that every General Plan Amendment becomes a Charter Section 423 issue because
the City needs to track any unit added for ten years. She reported that this policy is a
cleaner way for the City to ensure they were complying with Charter Section 423 and
keeping with the level of specificity in the General Plan today. .
Planning Director Temple emphasized that this is not a change since the current General
Plan establishes specific dwelling unit limits area -by -area and this policy is currently being
applied throughout the City. Assistant City Manager Wood noted that people currently
aren't allowed to subdivide single- family lots because the General Plan limits the number of
dwelling units. She reported that, for the majority of the.City, resubdividing is not
permitted because of how the General Plan is written.
Mayor Webb expressed concern about allowing legally merged lots to be exempt from the
General Plan and be allowed to resubdivide. Senior Planner Ramirez explained. the
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reasoning behind the Planning Commission's recommendation. He noted that the General
Plan doesn't include numbers. City Attorney Clauson clarified that lots can be combined,
but cannot be further broken down due to the Subdivision Map Act. She. discussed the
process to make the dwelling a legal.dwelling unit, but emphasized that this is on a lot -by-
lot basis.
Senior Planner Ramirez discussed the mapping designation for the commercial areas in
which the YAR is listed on the map. He explained why the anomaly table is still needed.
Assistant City Manager Wood confirmed that the amount of entitlement is a certain amount
for the whole block and is not calculated by parcel. City Attorney Clauson clarified that a lot
line adjustment cannot be done if the number of lots results in more lots than what was
started with.
It was the consensus of Council to follow the Planning Commission's- recommendation to
allow legally merged lots to resubdivide.
Dan Miller, The Irvine Company, received clarification from Assistant City Manager Wood
that the Planning Commission's recommendation deals with additional units beyond the
General Plan. Regarding hotel rooms, she confirmed that they would be already counted in
the General Plan if the units were authorized.
Jan Vandersloot agreed with the no resubdivision policy and applying it Citywide which is
similar to the current General Plan.
Sandra Genis received clarification from Assistant City Manager Wood that the anomaly
table (Table A2) is still being finalized. She further. clarified that Table Al has been
replaced by the information shown graphically on the map and is no longer needed, and
Table A2 will be in the body of the Land Use Element.
Circulation Element
Assistant City Manager Wood reported that, at Riverside and Coast Highway, it may be
feasible to add a second eastbound. turn lane (Figure CEM. She stated that this would
amend Policy 2.1.1 and one of the intersections would change to Level of Service D (LOS D).
She noted that this would nqt be an amendment over what the City has today. There were
no objections from Council.
Assistant City Manager Wood indicated that, at Dover and Coast Highway, a fourth
westbound through lane would cause the loss of the. free right. turn lane from westbound
Coast Highway onto Dover. Further, the City would need significant right -of -ways to
accomplish the improvements. She indicated that staff feels this is infeasible and is not
recommending the improvement. She confirmed that this will leave Dover to operate at
LOS E and that the bridge was not designed to be widened.
Jan Vandersloot believed that LOS D can be achieved at Dover Drive by restriping the
highway to get the fourth lane. He asked why the right turn lane is needed and why the
solution is in the Circulation Element if it isn't feasible.
Mransportation/Development Services Manager Edmonston reported that the current plan is
substandard by Caltrans standards and that therels no room to restripe for the fourth lane.
He explained that the centerline cannot be moved from Dover to McDonald's because that.is
where the third eastbound lane will eventually be located.
Without objection, it was the consensus of Council to allow LOS D at Riverside and Coast
Highway, and LOS E at Dover and Coast Highway.
Assistant City Manager Wood reported that staff has learned that some of the right -of -way
at Campus and Bristol maybe available after JWA expands and the remainin right- of-way
would be located at the end of the County golf course. She indicated that the improvement
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to create a third southbound right turn lane and a fourth northbound through lane is
feasible and would make it LOS D instead of LOS E.
With the exception of Council Member Nichols, no other Council Member wished to consider
six lanes in Corona del Mar at Goldenrod and Marguerite.
Assistant City Manager Wood confirmed that the intersections being considered to have .
LOS E are Coast Highway/Marguerite, Coast Highway/Goldenrod, Coast ".Highway /Dover,
and the shared intersections with Irvine since their standard is LOS E.
Sandra Genis expressed concern with how land use and traffic coordinate, specifically with
the mixed use concept. She referenced the PPE Study and noted that recent versions of
PPE's trip generation do not include information on mixed use sites. She believed that this
means that there will be more intersections at LOS E. .
Jan Vandersloot asked why the City is accepting Irvine's. LOS E standard and believed that
the standard should, be LOS D.
Phil Arst noted that there is no updated Circulation Element and expressed concern about
the mixed use concept. He stated that he has not seen allowances in the traffic study for the
density bonuses. He emphasized that Greenlight measures peak hour trips and that these
calculations should be included in the traffic study.
Without objection, the Campus and Bristol intersection plan was accepted by Council
Assistant City Manager Wood noted the goal of having 20% of all units be affordable
housing, however, staff and the Planning Commission is recommending 15% because of the
added opportunities for residential development in the proposed General Plan. She
confirmed that the City will still meet the Regional Housing Needs Assessment (RHNA)
goals over the 20 year period, but if not, the City can redo the Housing Element every five
years.
Regarding how to implement the inclusionary requirement, Assistant City Manager Wood
indicated that the City can adopt an inclusionary housing ordinance or require developers to
prepare an Affordable Housing Implementation Plan (AHIP). She reported that the
Planning Commission recommended that the AHIP be used so that projects of 50 units or
less can prepare the AHIP or pay an in lieu fee, and projects of over 50 units would be
required to prepare an AHIP.
Sandra Genis believed that including Banning Ranch in the totals is problematic, noted that
there is no mention of second family units, and urged Council to adopt the inclusionary
housing ordinance. Assistant City Manager Wood clarified that the only instance in which
the Housing Element is suggesting no density bonus is for the 15% or 20% that are required
to be. affordable housing and reviewed State law about developers who agree to provide
affordable units.
Phil Arst expressed concern that the maximum number of dwelling units is not stated in the
report and that the main focus seems to be on affordable housing. He asked that the City
use its current entitlements to justify affordable housing.
In response to Mayor Webb's questions about Banning Ranch, Assistant City. Manager
Wood indicated that they are talking with the property owner and hope to bring an
agreement before Council at the July 11 Council meeting that.would allow the City to
purchase the site in 4 to 5 years for development as shown in the General Plan.
Without objection, it was the consensus of Council to choose the 15% amount of affordable
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housing and to require AHIP.
Page 19 of 22
Jan Vandersloot believed that five years is not enough time to purchase Banning Ranch.
L. PUBLIC COMMENTS
Jan Vandersloot believed that the report that was issued to the General Plan Advisory Committee
(GPAC) in December 2002 by the Chamber Group should be included in the Environmental Impact
Report (EIR) comments.
M. ORAL REPORTS FROM CITY COUNCIL ON COMMITTEE ACTIVITIES - None
N. PLANNING COMMISSION AGENDA AND ORAL STATUS REPORT
34.. PLANNING COMMISSION AGENDA FOR JUNE 22, 2006. [100 -20061
Staff Report
Action Agenda
Planning Director Temple reviewed the following Planning Commission items: Macklin
Residence - 6 Barrenger Court (PA2006 -088); Steadfast Investment Properties - 4343 Von
Farman Avenue (PA2005 -293); and General Plan Update: Land Use Element and Maps.
O. CONTINUED BUSINESS (Continued)
36. APPOINTMENTS TO BOARDS &COMMISSIONS. [100 -20061
StaffReport
City Clerk. Harkless read the.ballot votes for the Board of Library Trustees as follows:
Theresa Chase (Curry, Selich, Rosansky, Ridgeway, Daigle, Nichols, Mayor Webb)
City Clerk Harkless announced that Theresa Chase has been reappointed to the Board of
Library Trustees.
City Clerk Harkless read the ballot votes for the City Arts Commission as follows:
Gilbert Lasky (Curry, Selich, Rosansky, Ridgeway, Daigle, Nichols, Mayor Webb)
City Clerk Harkless announced that Gilbert Lasky has been reappointed to the City Arts
Commission.
City Clerk Harkless read the ballot votes for the Harbor Commission as follows:
Timothy Collins (Curry, Selich, Rosansky, Ridgeway, Daigle, Nichols, Mayor Webb)
John Corrough (Curry, Selich, Rosansky, Ridgeway, Daigle, Nichols, Mayor Webb)
Tom Houston ( Selich, Rosansky)
Scott Ramser (Ridgeway, Daigle)
Karen Rhyne (Curry, Mayor Webb)
Mark Sites (Nichols)
City Clerk Harkless announced that Tim Collins and John Corrough have been reappointed
to the Harbor Commission, and second ballots will be distributed to vote between Tom
Houston, Scott Ramser, and Karen Rhyne.
City Clerk Harkless read the ballot votes for the Parks, Beaches and Recreation Commission
as follows:
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Barbara Durst - Taylor (Nichols)
Marie Marston (Ridgeway, Daigle, Mayor Webb)
Robert Rush (Nichols)
Gregory Ruzicka (Curry, Selich, Rosansky, Ridgeway, Daigle, Mayor Webb)
Cristine Trapp (Curry, Selich, Rosansky, Ridgeway, Daigle, Nichols, Mayor Webb)
Jack Wu (Curry, Selich, Rosansky)
City Clerk Harkless announced that Gregory Ruzicka has been reappointed and Cristine
Trapp has been appointed to the Parks, Beaches and Recreation Commission, and second
ballots will be distributed to vote between Marie Marston and Jack Wu.
City Clerk Harkless read the ballot votes for the Harbor Commission as follows:
Tom Houston (Selich, Rosansky)
Scott Ramser (Ridgeway, Daigle, Nichols)
Karen Rhyne (Curry, Mayor Webb)
City Clerk Harkless announced that third ballots will be distributed to vote between Tom
Houston, Scott Ramser, and Karen Rhyne since four votes are required for appointment.
City Clerk Harkless read the ballot votes for the Parks, Beaches and Recreation Commission
as follows:
Marie Marston (Ridgeway, Daigle, Nichols, Mayor Webb)
Jack Wu (Curry, Selich, Rosansky)
City Clerk Harkless announced that Marie Marston has been appointed to the Parks,
Beaches and Recreation Commission for a term expiring June 30, 2009, since she received .
the least amount of votes between the three appointees.
City Clerk Harkless read the ballot votes for the Harbor Commission as follows:
Tom Houston (Selich)
Scott Ramser (Ridgeway, Daigle, Nichols)
Karen Rhyne (Curry, Rosansky, Mayor Webb)
City Clerk Harkless announced that fourth ballots. will be distributed to vote between Scott
Ramser and Karen Rhyne since four votes are required for appointment.
City Clerk Harkless read the ballot votes for the Harbor Commission as follows:
Scott Ramser (Ridgeway, Daigle)
Karen Rhyne (Curry, Selich, Rosansky, Nichols, Mayor Webb)
City Clerk Harkless announced that Karen Rhyne has been appointed to the Harbor
Commission.
S38. NEWPORT RIDGE PARK AND CRESTRIDGE PARK — DECISION REGARDING
ACCEPTANCE OR REJECTION OF ALL OR PARTS OF AN HLREVOCABLE
OFFER. OF DEDICATION (IOD). [100.2006]
Staff Report
Council Member Curry explained why he is recommending Option 3 of Attachment F and
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City Council Regular Meetk Page 21 of 22
believed that Option 1 would generate litigation against the City.
Council Member Daigle noted that there is no written policy on how to handle field use on a
facility that the City assumes ownership of and is already regularly used.
Regarding Council questions about improving the ball field and the budget allocation, City
Attorney Clauson clarified that the cost associated with the Newport Coast Community
Center is only to relocate the field and not replace the grass. She indicated that she is not
sure how many acres the ball fields encompass because the legal descriptions have not been
finalized. City Manager Bludau reported that the current field is not up to City standards
and noted that the turf and grass need to be replaced.
Council Member Ridgeway agreed that the baseball leagues cannot use the fields because of
the current condition of the grass and how they're configured. He believed that Option 1 is
consistent with the Irrevocable Offer of Dedication GOD) policy and, if the City is going to
provide for the youth of the community, it needs to take over at least the baseball fields.
Dan Wampole, Newport Ridge Homeowners Association, agreed that the grass is not good
for playing sports. He indicated that the Association would prefer Options 4 or 6, but can
support Option 3. He added that there should be a City sidewalk along Lot C, similar to the
public accessway mentioned in Option 1, and requested that the Association be allowed to
fence in the private family recreation area. He noted that Option 1 would get the City into
litigation. He stated that they would agree to the Option 3 operating agreement having a
provision to prohibit signs that said "Private Park" or 'No Trespassing".
Mayor Pro Tem Rosansky expressed concern about finalizing anything without reviewing
the final .operating agreement. Mr. Wampole noted that Option 3 has a provision for the
City to accept the IOD at anytime in the event the Association . does not comply. He
requested that Council approve Option 3 upon receiving an acceptable operating agreement.
By a straw vote of 4 (Curry, Selich, Rosausky, Nichols) to 3 (Ridgeway, Daigle, Mayor
Webb), Council agreed to proceed with Option 3.
In response to Council questions about Option 3, Mr. Wampole discussed how they, believe
they will expand field use by 50 %: He also reported that the Association wasn't thinking
about renovating the fields at this time, and the public will be allowed to use the restroom
facilities if field use is only expanded 50%. Council Member Daigle expressed concern about
how the Association is going to maintain the fields. Council Member Curry believed that
Mr. Wampole is trying "to get Field 2 upgraded for community use and that upgrading the
fields is the City's option.
Mayor Webb directed staff to bring this issue back to Council at the August 8 meeting
R An. O iRNMENT . at 1:15 am. on Wednesday, June 28, 2006
The agenda for the Regular Meeting was posted on June 21, 2006, at 3:25 p.m. on the City
Hall Bulletin Board located outside of the City of Newport Beach Administration
Building. The supplemental agenda for the Regular Meeting was posted on June 23, 2006,
at 2:00 pm. on the City Hall Bulletin Board located outside of the City of Newport Beach
Administration Building.
Recording Secretary
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City Council Regular Meeti-
Mayor
City Clerk
Page 22 of 22
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1
DRAFT
ORDINANCE NO. 2006-
AN ORDINANCE OF THE CITY COUNCIL OF THE
CITY OF NEWPORT BEACH, ADDING CHAPTER
20.68 TO THE NEWPORT BEACH MUNICIPAL
CODE PERTAINING TO INCLUSIONARY HOUSING
REGULATIONS AND AMENDING SECTION
20.03.030 PERTAINING TO DEFINITIONS OF THE
NEWPORT BEACH MUNICIPAL CODE
WHEREAS, the City of Newport Beach ("City") is a Charter City, governed
by a charter adopted by the citizens of the City; and
WHEREAS, it is a public purpose of the City and a policy of the State to
achieve a diverse and balanced community with housing available for
households of all income levels; and
WHEREAS, economic diversity fosters social and environmental
conditions that protect and enhance the social fabric of the City and are
beneficial to the health, safety and welfare of its residents; and
WHEREAS, the lack of affordable housing has a direct impact upon the
health, safety and welfare of the residents of the City; and
WHEREAS, State law pertaining to general ,plans and the Housing
Element of the City General Plan require that City ordinances regulate land use
development and that the City and its agencies otherwise use their authority in a
manner that provides an adequate supply of housing for all economic segments
of the community; and
WHEREAS, thQ..Gjty it, experiencing. an increasing shortage of.housing
affordable to very low -, low- and moderate- income households and:will not be
able to fully contribute to the attainment of the State housing goals or to retain a
healthy environment without additional affordable housing; and
WHEREAS, new residential development .does not provide housing
opportunities for very low -, low- and moderate - income households due to the
high cost of land in the City; and
WHEREAS, as a result, very low -, low, and moderate - income households
are de facto excluded from many new neighborhoods, creating economic
stratification in the City detrimental to the public health, safety and welfare; and
k
WHEREAS, an increasing number of persons in very low -, low, and
moderate- income households live in overcrowded or substandard housing and
devote an overly large percentage of their Income to pay for housing; and
WHEREAS, the amount of land in the City _available for residential
development is limited; and
WHEREAS, the consumption of this remaining land for residential
development without providing affordable housing to persons of all income levels
would work counter to housing, environmental and planning policies and have a
substantial negative impact on the environment and economic climate because
(i) housing will have to be built elsewhere, far from employment centers and
therefore, commutes will increase, causing increased. traffic and transit demand
and consequent noise and air pollution; and (10 City businesses will find it more
difficult to attract and retain the workers they need; and
WHEREAS, new residential development in the City which does not
provide for affordable units aggravates the existing shortage of affordable
housing by absorbing the supply of available residential land, reducing the supply
of land for affordable housing , and increasing the price of the remaining
residential land; and
WHEREAS, at the same time, new residential development contributes to
the demand for goods and services in the City, increasing local, service
employment at wage levels which often do not permit employees to afford
housing in the City; and
WHEREAS,. Federal and State funds for the construction of new
affordable housing are insufficient to fully address the problem of affordable
housing within the City; and
WHEREAS,- the private - housing market has failed to provide adequate
housing opportunities for very low -, low -, and moderate- income households; and
WHEREAS, on March 14, 2000 the City Council established an Affordable
Housing Task Force that was charged with recommending an appropriate
affordable.housing program; and
WHEREAS, the Affordable Housing Task Force conducted an
investigation, held hearings and solicited comments from the community
regarding a range of options; and
WHEREAS, on the Affordable Housing Task Force
recommended this ordinance to the Planning Commission; and
3S
WHEREAS, on the Planning Commission held a public
a hearing on this ordinance and recommended this ordinance to the City Council
for adoption; and
WHEREAS, the City is aware that there may be .times when the
inclusionary housing requirements make market -rate housing more expensive;
and.
WHEREAS, in weighing.all the factors, including the significant need for
affordable housing, the City Council has made the decision that community's
interests are best served by the adoption of inclusionary housing regulations; and
WHEREAS, to implement the City General Plan, to carry out the policies
of the State and federal law and policy, and to ensure the benefits of economic
diversity of the residents of the City, it is essential that new. residential
development in the remaining new growth areas of the City contain housing
opportunities to households of very low -, low- and moderate- inoome,. and that the
City provide a regulatory framework which ensures development of an adequate
supply and mix of new housing to meet the future housing needs of all income
segments of the community; and
WHEREAS, the City Council finds that it is necessary to adopt an
inclusionary housing ordinance to address the City's housing crises.
NOW THEREFORE, the City Council of the City of ..Newport Beach,
California, hereby.ordains as follows:
SECTION 1: Chapter 20.68 of the Newport Beach Municipal Code is hereby added
to read as follows:
V,
CHAPTER 20.68
INCLUSIONARY HOUSING REGULATIONS
See Ions:
20.68.010
Purpose
20.68:020
Inclusionary Housing Regulations
20.68.030
Credit Transfers
20.68.040
In -Lieu Fees
20.68.050
Altematives
20.68.060
Exemptions
20.68.070
Adjustments, Waivers
20.68.080
Compliance Procedures
20.68.090
Eligibility for Affordable Units
20.68.100
Affordable Unit Credits
V,
20.68.110 Affordable Housing.Trust Fund
20.68.120 Enforcement
20.68.130 Appeals
20.68.010 Purpose
The purpose of this Chapter is to:
A. Provide a balanced residential community comprised of a variety of
housing types, designs, and opportunities for all social and
economic segments, including very low -, low -, and moderate-
income households.
B. Promote the City's goal to add affordable housing units to the City s
housing stock in proportion to the overall increase in new housing
units.
C. Offset the demand on housing that is created by residential
development and mitigate environmental and other impacts that
accompany residential development by protecting the economic
diversity of the" City's housing stock, reducing traffic, transit and
related air quality impacts, promoting jobs/housing balance and
reducing the demands placed on transportation infrastructure in the
region.
D. Ensure that the limited remaining developable land. in the City's
planning area is utilized in a manner consistent with the City's
housing policies and needs.
20.68.020 Inclustonary Housing Regulations
A: -.Affordability Requirement. Unless otherwise provided An this
Chapter, all new residential development projects of eleven or more
dwelling units, designed and intended for permanent occupancy,
shall construct the following percentage of the total number of
dwelling units within the residential development project as
affordable units restricted for occupancy by, very low -, low- or
moderate- income households: (1) 11.5 percent very low- income
households; (2) 20 percent low- income households; or (3) 30
percent moderate-income households. The number of affordable
units required for a particular residential development project will be
determined only once, at the time of tentative or parcel map
approval, or for developments not processing a tentative or parcel
map, prior to issuance of a building permit, regardless of the
changes in the character or ownership of the residential
development, provided the total number of units does not change. If
51
a change in the residential development project design results in a
change in the total number of units, the number of affordable units
required will be recalculated to coincide with the final approved
residential development project.
B. Calculation. In determining the number of whole affordable units
required, any decimal fraction less than 0.50 shall be rounded down
to the nearest whole number, and any decimal fraction greater than
or equal to 0.50 shall be rounded up to the next whole number. For
purposes of calculating the number of affordable units required by
this Section, any additional units authorized as a. density bonus
under California Government Code Section 65915(b) (1) or (2) will
not be counted in determining the required number of affordable
units.
C. Design and Distribution of Affordable Units. All affordable units shall
reflect the range of numbers of bedrooms provided in the
residential development project as a whole and shall be
comparable in infrastructure (including sewer, water, and other
utilities); construction quality, and exterior design to the market -rate
units. The affordable .units may be smaller in aggregate size and
have different inferior finishes and features than the market -rate
units in the residential development project so long as the interior
features are durable, of good quality and are consistent with
contemporary standards for new housing. The affordable units shall
be dispersed throughout the residential development, unless
clustering is expressly authorized by the City.
D. Tenure of Affordable Units. For all affordable units provided
pursuant to this Section, the applicant shall have. the option of
selling the affordable units at an affordable housing. price or renting
the affordable units at an affordable rent subject to the terns and
conditions imposed on the residential development project and the
provisions contained. in the Affordable Housing Agreement.
E. Timing. All affordable units shall be constructed and offered for
occupancy concurrently with or prior to the construction and
marketing of the market -rate units. in phased residential
development projects, affordable units may be constructed and
marketed in proportion to the number of market -rate units
constructed and marketed in each phase of the residential
development project. If the Planning Commission determines that
extenuating circumstances exist and that the concurrent
construction of affordable units is infeasible or impractical, the
Piarining Commission may waive the requirements of this
i Subsection or impose reasonable conditions to effectuate the intent
$$.
of this Subsection.
F. Duration of Affordability Requirement. Affordable units required by
this Chapter shall be legally restricted to occupancy by households
of the income levels for which the affordable units were designated
for a minimum of 30 years.
G. Conditions of Approval. Any tentative map, parcel map, use permit,
site plan review, coastal residential development permit, or other
discretionary permit approving a residential development project
subject to this Chapter shall contain conditions sufficient to ensure
compliance with the provisions of this Chapter, including the
execution of an Affordable housing Agreement imposing, among
other things, appropriate resale controls and /or rental restrictions
on the affordable units.
20.68.030 Credit Transfers
An applicant may fully or partially satisfy the requirements of Section 20.68.020
through the use of transferable affordable unit credits created pursuant to Section
20.68.100. Credit certificates shall only be used to satisfy the requirements for
affordable units of the income category (i.e., very low -, low-, or moderate - income)
and number of bedrooms for which the affordable unit credits are issued.
20.68.040 In -Lieu Fees
A. General Requirements.
1. For residential development projects of 11 to 50 dwelling
units, the requirements of this Chapter may be satisfied by
paying a fee in -lieu of constructing all or a portion of the
affordable urds required by this. Chapter.
2. For residential development of 50 or more dwelling units, the
applicant may not pay a fee in-fieu of constructing the
required affordable units.
B. Timing of Payment For residential development projects that are
not phased residential development projects, the in -lieu fee shall be
paid at the time of issuanoe,of any building permit for the residential
development project. For phased residential development projects,
payment of the in-lieu fee shall be made for each portion of the
residential development project at the time any building permit is
issued for that phase of the residential development project. When
payment is phased, the amount of the In -lieu fee payable under this
Section shall be based upon the in-lieu fee schedule in effect at the
time the in -lieu fee is paid. )
3``
j C. Amount of Fee. The amount of the in -lieu fee shall he set by
resolution of the City.Council and the amount of the in4ieu fee may
be amended from time to time to reflect changes in residential
construction costs and other conditions in -the City and the region.
D. Partial Payment. Developers electing to provide a portion of the
affordable units required by Section 20.68.020 within the residential
development project, may pay an in -lieu fee for the remainder of
the required affordable units that are not provided. The in -lieu fee
shall be paid at the time of issuance of any building permit for the
residential development project.
20.68.050 Alternatives
A. Proposal. An applicant may propose one of the following aftemative
means of compliance with Section 20.68.020 by submitting an
application for discretionary approval in accordance with Chapter
20.90 and this Section.
B. Coif -Site Construction : Projects. An applicant may propose to
construct some or all of the affordable units required by Section
20.68.020 at a location not physically within the residential
development project in -lieu of constructing some or all of the
affordable units within the residential development project. The
Planning Commission shall approve or conditionally approve the
proposal on the basis of the application, plans, materials, and
testimony submitted if the Planning Commission finds:
That the purpose of this Chapter would be served by
implementation of the proposed alternative.
2. That construction of the off -site units in -lieu of constructing e -
on -site units is consistent with the Chapter's purpose.
3. That the off site units to be constructed are located within
the City of Newport Beach and are consistent with the
requirements of Section 20.68.020.
4. That it would be infeasible or impractical to construct on -site
units.
C. Cuff- -Site Rehabilitation Projects. An applicant may propose to
rehabilitate, existing off -site units and convert the off -site units to
affordable units in=lieu of constructing some or all of the affordable
units required to be provided under Section ,20.68.020 within the
iN
residential development project. The Planning Commission shall
approve or conditionally approve the proposal on the basis of the
application, plans, materials, and testimony submitted if the
Planning Commission finds:
T. That the purpose of this Chapter would be served by
implementation of the proposed alternative.
2. That rehabilitation of the proposed dwelling units in-lieu of
constructing units on -site is consistent with this Chapter's
purpose.
3. That the proposed dwelling, units to be rehabilitated off -site
are located within the City of. Newport Beach and are
consistent with the requirements of Section 20.68.020.
4. The proposed dwelling units to be rehabilitated off -site are in
need of substantial rehabilitation.
5.. That the proposed dwelling units to be rehabilitated off -site
. are not already subject to affordability income restrictions.
6. That it would be infeasible or impractical to construct the on-
site.dwelling units.
7. That the off -site dwelling units will be substantially
rehabilitated, such that the unit is returned to the 'City's .
housing supply as decent, safe and sanitary housing and
meet all applicable housing and building code requirements.
D. Land Dedication. An applicant may propose to dedicate land to the.
City or City - designated local non -profit housing.. developer in -lieu of
construction of some or all of the affordable units required by
Section 20.68.020. The Planning Commission shall recommend
and the City Council shall approve or conditionally approve this
proposal if the City Council finds all of the following:
t. That the purpose of this Chapter would be served by
implementation of the proposed altemative.
2. That dedication of land in -lieu of constructing units is
consistent with this Chapter's purpose.
3. That the dedicated land is useable for its intended purpose
and has the appropriate general plan and zoning designation
for the development of affordable housing, is free of toxic,i
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t
substances and contaminated soils, and is or will be fully
improved with infrastructure and adjacent utilities.
That the conditions . of approval for the residential
development project are adequate to ensure that title to the
dedicated. land, or lease/rights useful for the life of the
housing improvements, shall be conveyed to the City or City -
designated local non -profit housing developer before a
building permit is Issued for all or any portion of the
residential development project. .
5. That all property taxes and special taxes be current before
the title is conveyed to the City or City- designated local non-
profit housing developer.
6. That the proposed land dedication meets. the following
requirements:
a. The dedication includes land sufficient to construct, at
a minimum, the number of affordable units that the
applicant would otherwise be required to construct by
Section 20.68.020; and
1 b. The proposed land dedication has an equivalent or
I greater value than the in -lieu fee that would be
required to be paid under Section 20.68.040 if applied
to the overall project The value of the proposed land
dedication shall be appraised by a certified appraiser
selected by the City. The applicant shall pay for all
costs and expenses associated with the appraisal. At
the time the applicant submits the application
prpAged for in this Section,. the applicant shall deposit
the estimated cost and expense for the appraisal as
determined by the Planning Director. After the
appraisal is prepared, the Planning Director shall
provide the applicant with a Notice of Decision
regarding the value of the proposed Nand dedication
and a copy of the appraisal. If the applicant disputes
the decision of the Planning Director, the applicant
shall file an appeal in accordance with Chapter 20.95.
At the hearing on appeal, the appellate body shall
consider any material provided by the applicant
regarding the value of the proposed land dedication.
W,
20.68.060 Exemptions
A. Natural Disasters. The requirements of this Chapter do not apply to
the reconstruction of any structure that has been destroyed by fire,
flood, earthquake or other act of nature provided that the
reconstruction of the site does not increase the number of
residential units.
B. Other Governmental Entities. The requirements of this Chapter do
not apply to housing constructed by other governmental agencies.
20.68.070 Adjustments, Waivers
The City Council, at its discretion, may waive, wholly or partially, the
requirements of this Chapter and approve alternative methods of compliance with
this Chapter if the applicant demonstrates, and the City Council finds that either
A. Then: is no reasonable relationship between the impact of a
proposed development and the requirements of this Chapter; and
applying the requirement of this Chapter would take property in
violation of the United States or California Constitutions; or,
B. There are special circumstances unique to the residential
development that justify the granting of an adjustment or waiver,
the residential development would not be feasible without the
modifications; a specific and financial hardship would occur if the
modification was not granted; and no aftemative means of
compliance are available which would be effective in attaining the
purpose of this Chapter than the relief requested.
20.68.080 Compliance Procedures
A General. Except as provided herein, entry into an .Affordable
Housing. Agreement, in a form approved by. the City Attorney, is a
condition of any, tentative map, parcel map or. building permit for
any residential development for which this Chapter applies. This
Section does not apply to exempt residential development projects
or to residential development projects where the requirements of
this Chapter are fully satisfied by payment of an in4eu fee under
Section 20.68.040 or land dedication as provided under Section
20.68.050(D).
B. Affordable Housing Agreement. The form of the Affordable Housing
Agreement will vary depending on the manner in which the
provisions of this Chapter are satisfied for a particular residential
development: All Affordable Housing Agreements should include, at
t
j
a minimum, the following:
A description of the residential development project, how the
requirements of this Chapter will be met by the applicant,
and whether the affordable units will be rented or owner -
occupied;
2. The number, size and location of each very low-, low- or
moderate- income units;
3. inclusionary incentives by the City (if any), including the nature
and amount of any local public funding;
4. Provisions and/or documents for resale restrictions, deeds of
trust, rights of first refusal or rental restrictions;.
5. Provisions for monitoring the ongoing affordability of the units,
and the process for qualifying prospective households for
income eligibility
6. Security provisions, such as a cash deposit, bond, or letter of
credit, adequate to complete the requirements of this
Chapter_ concurrently with the completion of the construction
of the residential development project consistent with
Section 20.68.020(E); and
C. Recording of Agreement. All Affordable Housing Agreements that
are acceptable to the City Attomey must be recorded against the
owner- occupied affordable units and the projects containing rental
affordable units. Additional rental or resale restrictions, deeds of
trust, rights of first refusal and /or other documents acceptable to the
City Attorney must also be recorded.. against oHmer- occupied
affordable units. In cases where the requirements of this Chapter
are satisfied through the development of off -site units or off -site
rehabilitated units, the Affordable Housing . Agreement must
simultaneously be recorded against the property where the off -site
units are located and off -site rehabilitated units are located..
20.68.090 Eligibility for Affordable Units
No household shall be permitted to occupy an affordable unit designated for a
very low-, low, or moderate- income household unless the City or its designee
determines that the household is eligible to occupy the applicable affordable unit
based on the household income, as determined in accordance with Title 25 of the
California Code of Regulations Sections 6910 through 6932. The developer shall
use an equitable selection method established in conformance with the terms of
JA
this Chapter, which shall be neutral as to age,.race, religion, sex, creed and
ethnic origin or any other impermissible standard established by the United }
States or State of California Constitution. Additionally, the selection criteria may
not distinguish between adults and children, except as provided in Federal and
State law for units designated for senior citizens.
20.66.100 Affordable Unit Credits
A. Creation. One affordable unit credit shall be issued for each
affordable unit constructed in excess of the number of affordable
units required to be constructed for the project by Section
20.68.020(A). Affordable unit credits shall be issued by the
Planning Director and shall designate a.specific income category
(La., very low -, low-, or moderate - income) and number of bedrooms
for which they are issued.
B. Ownership and Use of Credits. Affordable unit credits are.issued to
and become the possession of the project owner, who may then
use them to satisfy the requirements of this Chapter for another
residential development project in the City. If a project owner
proposes to sell credit certificates, the parties . shall first notify the
Planning Director, who will document the transfer.
20.68.110 Affordable Housing 'Trust Fund
A. Trust Fund.. There is hereby established a separate Affordable
Housing Trust Fund ( "Fund's. The Fund shall receive all in -lieu fees
contributed under Sections 20.68.040 and may also receive monies
from other sources.
B. Purpose and Limitations. All monies deposited . in the Fund,
together. with . any.-interest earnings on such monies, less -
reasonable administrative charges or related expenses associated
with the administration of this Section including, but not limited to,
reasonable consultant and legal expenses related to the
establishment and/or administration of the Fund and reasonable
expenses for administering the process of calculating, collecting,
and accounting for fees, shall be used or committed solely to
increase the supply of housing affordable to very low -, low -, and
moderate4ncome households.
C. Expenditures. Fund monies shall be used in accordance with City's
Housing Element to construct, rehabilitate or subsidize affordable
housing or assist other governmental entities, private organizations
or individuals to do so. Permissible uses of Fund monies include,
but are not limited to: (1) assistance to housing development j
ay
j
`� J
r; (2).egkjity participation loans; (3) grants; (4) pre -home
co- investment; (5) pre - development loan funds; (6)
leases; m other public-private partnership
arrangements; (8) the acquisition of property and property rights;
and (9) construction of affordable housing including 'costs
associated with planning, administration,- and design,' as well as
actual building or installation, as well as any other costs associated
with the construction or financing of affordable housing. The Fund
may be used for the benefit of both rental and owner - occupied
housing.
20.68.720 Enforcement
A. Penalty for Violation of Terms. It shall be unlawful for any person,
firm, corporation; - partnership or other entity to. violate any
provisions of this Chapter. A violation of any of the provisions of
this Chapter or failing to comply with any of the requirements of this
Chapter shall constitute a misdemeanor; except that
notwithstanding any other provisions of this Chapter, any such
violation constituting a misdemeanor under this Chapter, may in the
discretion of the enforcing authority, be charged and prosecuted as
an infraction.
B. Legal Action: The City may institute any appropriate legal actions or
proceedings necessary to ensure compliance with this Chapter
Including, but not limited to: (1) actions to revoke, deny or suspend
any permit, including a building permit, certificate of occupancy, or
discretionary approval; (2) actions to-recover from any violator of
this Chapter civil fines, restitution to prevent unjust enrichment from
a violation of this Chapter, and /or enforcement costs, including
attorneys fees; (3) actions to recover on behalf of the tenant, or to
,. the City in the event the tenant cannot be located, any excess rents........,._,
charged and/or enforcement costs, including attorneys fees; (4)
eviction or foreclosuretand (5) any other appropriate action for
injunctive relief or damages. Failure of any official or agency to fulfill
the requirements of this Chapter shall not excuse any person,
owner, household or other party from the requirements of this
Chapter.
C. Remedies Cumulative. The remedies provided for herein shall be
cumulative and not exclusive and shall not preclude the City from
any other remedy or relief to which it.otherwise would be entitled
under law or equity.
20.68-130 Appeals
A. Appeals. Decisions of the Planning Director may be appealed to the
Planning Commission and decisions of the Planning Commission
may be appealed to the City Council.
B. Procedures. Procedures for appeals shall be as prescribed by
Newport Beach Municipal Code Chapter 20.95: Appeals.
SECTION 2: The following definitions are hereby added to Section 20.03.030 of
Title 20 of the Newport Beach Municipal Code to read as follows:
"Affordable Housing Agreement° means the agreement entered into pursuant to
Chapter 20.68 which provides legal restrictions by which the .affordable units
shall be restricted to ensure that.the unit remains affordable to very low -, low-,
and moderate - income households, as applicable, for a period of not less than 30
years. With respect to rental units, such rent restrictions shall be in the form of a
regulatory agreement recorded against the applicable property. With respect to
owner - occupied units, such. resale controls shall be . in the form of resale
restrictions, deeds of trust, and/or other similar documents recorded against the
applicable property.
"Affordable Housing Price" means a sales price that is no more than 3 times the
maximum income level for very low -, low -, and moderate - income households, as
adjusted for household size by the United States Department of Housing and
Community Development [Is this correct?]
"Affordable Rent" means an annual rent that does not exceed 30 percent of
maximum income level for very low-, low -, and moderate4ncome households, as
adjusted for household size by the United States Department of Housing and
Community Development Us this correct?]
"Affordable Unit" means an ownership or rental - housing unit, including senior
housing, affordable to households with very low -, low -, and moderate - incomes as
defined in this Chapter.
"Conversion" means a change of a dwelling unit to a condominium, cooperative,
or a similar form of ownership; or a nonresidential use.
"Low-income" means between 50% and 80% of the median income, adjusted for
actual household size, as determined by the California Department of Housing
and Community Development for Orange County.
.. "Moderate- income" means between 80% and 120% of the median income,
adjusted for actual household size, as determined by the California Department
of Housing and Community Development for Orange County.
N'"t
"l "Residential Development" means detached single - family dwellings, multiple
dwelling structures, groups of dwellings, , condominium or townhouse
developments, cooperative developments, mixed use developments that. include
housing units, and residential land subdivisions intended to be sold to the general
public. [Is this term consistent with its use in other parts of the code?]
"Very low -, low -, and moderate - income" means those income and eligibility levels
determined periodically by the California Department of Housing and Community
Development based on Orange County median income levels adjusted for family
size. Such levels shall be calculated on the basis of gross annual household
Income considering household size and number of dependents, income of all
wage earners, elderly or disabled family members, and all other sources of
household income and will be recertified as set forth by local standards, and
State and Federal housing law.
"Very low- income" means 50% or less of the median income, adjusted for actual
household size, as determined by the California Department of Housing and
Community Development for Orange County.
SECTION 3:. If any section, subsection, sentence, clause or phrase of this
ordinance is, for any reason, held to be invalid or unconstitutional, such decision
shall not affect the validity or constitutionality of the remaining portions of this
ordinance. The City Council hereby declares that it would have passed this
ordinance, and each section, subsection, clause or phrase hereof, irrespective of
the fact that any one or more sections, subsections, sentences, clauses and
phrases be declared unconstitutional.
SECTION 4: The Mayor shall sign and the. City Clerk shall attest to the passage of
this ordinance. The City Clerk shall cause the same to be published once in the
official newspaper of the City, and it shall be effective thirty (30) days after its
adoption.
SECTIONS: This ordinance was introduced at a regular meeting of the City.
Council of the City of Newport Beach, held on the ; day of • . 2006,
and adopted on the_ day of 2006, by the following vote, to wit:
AYES, COUNCILMEMBERS
NOES,COUNCILMEMBERS
ABSENT COUNCILMEMBERS
;\a
ATTEST:
CITY CLERK
�h
1--D1tiv10 -7 -4*-15
arozz Enq,neer; nq Group, Inc.
52
j.i
December 11, 2007
City Council
City of Newport Beach
3300 Newport Boulevard
Newport Beach, CA 92663
Subject: North Newport Center Project - Peer Review and Measure S Evaluation
Honorable Mayor Rosansky and members of the City Council:
Orosz Engineering Group, Inc (OEG) has been retained by the Greenlight PAC to conduct a peer review
of the supporting traffic engineering studies that have been published relative to the subject project.
We have also been asked to review the project in light of the Measure S thresholds and to review the
methodology in the transfer of square footage proposed.
The following is a summary of the documents included in the peer review and evaluation that the City
has produced for the Planning Commission and City Council's use in reviewing the proposed project.
• Newport Center Trip Transfer Traffic Study; November 7, 2007
• North Newport Center Traffic Phasing Ordinance Traffic Study; November 6, 2007
• Planning Commission Staff Report— North Newport Center Planned Community (PA2007 -151)
500 -600 Bilk Newport Center Drive, 42000 Bilk San Joaquin Plaza; November 15, 2007
• Addendum to City of Newport Beach General Plan 2006 Update EIR
The peer review focused on the primary issue of equality of the transfer of existing uses and .
entitlements to the proposed project in terms of square footage and traffic volume. Secondarily, the
analysis provides and opinion on the applicability of the Measure S thresholds requiring an election to
determine the merits of the project.
This letter report and evaluation has been prepared by Mr. Stephen Orosz, PE, PTOE. As principal of .
OEG, Mr. Orosz, has over 25 years experience in the field of transportation planning and traffic
engineering. Mr. Orosz holds a bachelor in science degree in Civil Engineering with emphasis on
Transportation. He is a registered Traffic Engineer and Civil Engineer in the State of California. He also
has been certified by the Institute of Transportation Engineers (ITE) as a Professional Traffic Operations
Engineer (PTOE). During the course of,his professional career, Mr. Orosz has not only prepared
numerous traffic impact analyses for developers, individuals and municipalities, he has conducted many
similar peer reviews for developers, municipalities and interested individuals /groups. As such, OEG is
qualified to conduct the peer review of the technical documents associated with this project. Mr. Orosz
has also recently reacquainted himself with the study area after having worked in the transportation
profession in and around the City of Newport Beach between 1980 and 1987. Mr. Orosz resume is
attached for additional qualifications and background.
City of Newport Beach
December 11, 2007
Page 2
Summary of Findings
In brief, OEG has identified numerous miscalculations in the complex traffic analysis that result in the
project as proposed not being consistent or equal to the transferred land uses. Further based on these
miscalculations in the square footage and traffic generation for the proposed project, the thresholds
Identified in Measure S appear to be exceeded.
The following material issues and inconsistencies have been identified with the subject supporting
documents that lead to these conclusions.
1. The trip generation rates used to estimate the City Hall traffic have been understated.
2. The AM peak hour traffic has not been considered in the traffic equality calculations.
3. City Hall trip generation has not been included in the traffic analysis.
4. Hotel trip generation has not been included in the traffic analysis.
5. Increases In existing Fashion Island development have been identified in the traffic analysis, but
are not discussed anywhere else in the documentation.
6. When the AM peak hour is considered, the actual amount of equivalent development is 160 TSF
less than proposed. The proposed project results in 160 TSF of office uses over and above that
consistent with the General Plan.
7. The amount of equivalent SF calculation is suspect.
8. The project would add at least 179 more peak hour trips than currently envisioned.
9. The project will create significant impacts at three intersections during the peak hours.
10. The project is not traffic neutral, or consistent, or equivalent and the analysis is Incomplete.
Analysis
The following analysis expands on these points and provides a reference document for the analysis
conducted.
Newport Center Trip Transfer Traffic Study; November 7, 2007
1. There appears to be a double counting of the office square footage in the use of the eliminated
office space in Table 1 and the way the trip rates were calculated for the office uses. Footnote 4
in Table 1 states that there are 408 TSF (thousand square feet) of existing development. Further
the table removes 8.289 TSF of office uses and seeks a trip credit in the calculations. The double
counting and inclusion of the eliminated SF of office leads to a under estimation of office traffic
in the future compared to the existing conditions.
2. The footnote used in assigning the trip generation rate for the City Hall is not correct. Footnote
5 states that the "ITE land use code 750 Office Park (emphasis added) is most representative of
the City Hall (in both function and magnitude)." This is an incorrect statement. Two other ITE
land use codes 730 and 733 Government Office Building (emphasis added) state that these two
uses are, representative of City Hall traffic patterns. The magnitude of the facilities used to
document the trip rates (ITE Land Use Codes 730 and 733) are 52 TSF and 104 TSF, essentially
bracketing the proposed City Hall at 72 TSF. The net result of using either of these two ITE land
uses is that the estimated traffic for the City Hall increases and the net transferable office
square footage decreases. The ITE Land Use Code descriptions are attached to this report.
M
City of Newport Beach
December 11, 2007
Page 3
Further, one other ITE land use code would be more appropriate.than the one selected in the
analysis and that is ITE land use code 715 Single Tenant Office Building (emphasis added). The
size of the facilities used to develop these trip rates (ITE Code 715 identifies an164 TSF average)
is closer to the proposed City Hall (72 TSF) than the Office Park trip rate (ITE Code 750 which
identifies a 370 TSF average). The net result of using either of these two ITE land uses is that the
estimated traffic for the City Hall increases and the net transferable office square footage
decreases.
3. An even more critical error in this data noted in Table 1 is the lack of comparison of the AM peak
hour traffic volumes. The health club, quality restaurant and hotel uses have dramatically lower
AM peak hour traffic volumes than the office uses that are being compared. When the AM peak
hour traffic comparison is conducted, the amount of equivalent office uses that can be
considered for transfer to the concept of traffic neutrality and equality decreases significantly.
In summary, these inconsistencies with the analysis included in the Trip Transfer Study significantly
increase the City Hall traffic during the AM and PM peak hours and results in the inconsistency in the
AM peak hour traffic volumes. The resultant increase in the AM peak hour traffic proposed exceeds the
Measure S thresholds of 100 peak hour trips.
North Newport Center Traffic Phasing Ordinance Traffic Study November 6, 2007
1. In the trip generation Table 1, there is some missing key, information. The hotel room traffic
that is being utilized to be transferred to the office uses is not documented in the project trip
generation table. This is a key element in the transfer proposal that would affect the amount of
square footage to be considered equivalent.
2. The City Hall trip generation is missing from the Table 1 totals. This would significantly increase
the net amount project traffic.
3. The new addition of Shopping Center square footage is not documented anywhere else in the
project discussion. Based on our preliminary research, the amount of development in Fashion
Island in the General Plan has been accounted for. The amount of square footage of
development proposed (72 TSF) exceeds the 40 TSF threshold in the Measure 5 criteria. Further,
the 121 peak hour trips exceed the 100 peak hour trip threshold.
4. The whole trip transfer assumption was that the unbuilt /removed uses were equivalent to the
proposed uses. The current information in Table 1 demonstrates that during the PM peak hour
the proposed project generates 27 more trips than the transferred uses. Similarly during the
AM peak hour, the proposed uses generate 179 more trips than the transferred uses. The
increases in peak hour traffic confirm that the proposed project is not consistent or equal to the
approved uses.
5. The general office trip rates are correctly based on the regression equation provided by ITE.
However, the City Hall trip rate used in the analysis also qualifies to be based on the regression
equation, not an average rate for the same reasoning presented by the applicant. The apparent
selective use of the regression equation is not the normal standard of care in the traffic
profession.
In summary, these inconsistencies in the analysis included for the Traffic Phasing Ordinance do not
demonstrate that the existing entitlements are equal or equivalent to the proposed project. The project
as proposed exceeds both the square footage and traffic thresholds contained in the Measure S.
City of Newport Beach
December 11, 2007
Page 4
Planning Commission Staff Report— North Newport Center Planned Community (PA2007 -151) 500 -600
Blk Newport Center Drive, 42000 Elk San Joaquin Plaza; November 15, 2007
1. While the statement in the Transfer of Development Rights section correctly notes that the PM
peak hour is a period when the highest amount of congestion is found, this is not the complete
test when the evaluation of equality in transfers of development rights is being considered. To
make a complete finding of traffic neutrality and equality, all time periods of the day must be
tested — AM peak hour, PM peak hour and daily traffic. Even though the PM peak hour may
experience the most congestion, a project proposal that would increase AM peak hour traffic by
approximately 200 vehicles during the AM peak hour and could result in increased traffic
impacts. Further as required by Measure S, a project that proposes an increase in traffic greater
than 100 vehicles during a peak hour triggers the Measure S process.
2. In following the calculations to determine the transferable square footage in the staff report,
the staff notes that initially (based on just square feet of use) a total of 235,161 SF plus the
72,000 SF of city hall could be transferred. The staff report continues to note that although
235,161 SF is equivalent based on SF, the amount to be transferred through the comparison of
PM peak hour trips is 30 TSF less (for a total of 205,161 SF plus the City Hall). However, the staff
report does not go to the next step to check equivalency for potential transfer— the AM .peak
hour. When the AM peak hour trip equivalency is tested, the amount available to transfer and
to be considered equal or consistent would be approximately 165 TSF less than currently
proposed (40 TSF plus the 72 TSF for the City Hall). Therefore, the project as proposed would be
exceeding the 40 TSF threshold for Measure S by proposing an increase of 165 TSF.
3. The calculations determining the potential amount of transferable square feet is not clear. The
first item 30 hotel rooms from the original Four Seasons entitlement equates to a generic 1000
SF per room conversion. The 100 room expansion entitled with GPA 97 -3D has a very specific
square footage as part of the GPA project. The last entry is the confusing one. This relates to a
generic 65 hotel room allocation based on the 2006 General Plan. The square footage for this
conversion does not use the 1000 SF per room allocation approved for this purpose, but uses
the higher specific rate of 1,425 SF per room based on the detailed GPA. This apparent mis-
calculation results in an additional 27,625 SF potential transfer.
In summary, these inconsistencies in the Planning Commission Staff Report make the analysis included
faulty as the proposed project would be found not consistent, traffic neutral or equal to the proposed
transfer of land uses.
Addendum to City of Newport Beach General Plan 2006 Update EIR
1. The project environmental analysis in Table 4 describes the potential project impacts that can be
expected to occur with the approval of the project. The analysis in Table 4, page 3 -40 and 3-41
indicate that the project as proposed creates project specific impacts two intersections during
the PM peak hour and one intersection in the AM peak hour under the existing Plus Growth Plus
Approved Plus Cumulative Plus Project conditions. The technical studies provided in.support of
the project indicate that the project creates new significant impacts and would exceed the
impact thresholds set forth in Measure S.
2. The addendum contradicts itself on page 3-42 in the paragraph under Table 5 that states "that .
the project would not result in any new impacts or increase the severity of a previously
identified significant impact as previously analyzed in the General Plan EIR." The analysis
City of Newport Beach
December 11, 2007
Page 5
contained in the previous table (Table 4) identifies three intersections that would result in traffic
significant traffic impacts as described in the City's General Plan — impact of 0.01 or greater at
LOS E or F.
The critical review of the complex traffic analysis has found several inconsistencies within the
documentation being used to evaluate this project. The inconsistencies identified are both within each
of the technical documents and potentially with the General Plan. This review has also demonstrated
that the proposed Transfer of Development proposed is not equivalent, traffic neutral or consistent.
The absence of critical analysis and data to provide the decision makers with all of the information
necessary to make an informed decision is not possible at this time.
A representative from DEG will be available at the City Council Hearing on December 11, 2007 to
address these issues more completely.
Sincerely,
Stephen A. Orosz, P , PTOE
Orosz Engineering Group, Inc.
Attachments
MGuiding Principles
The recommended approach for
estimating trip generation for a
proposed development is based on
the following principles.
When the Trip Generation data plot
contains more than 20 data points
and a regression curve and equation
are provided, use of the regression
equation is recommended.
A regression equation with an R2 of
at least 0.75 is preferred because it
indicates the desired level of corre-
lation between the trips generated
by a site and the value measured for
an independent variable.
For the same reason, a weighted
average rate is preferred when the
standard deviation is less than or
equal to 110 percent of the weight-
ed average rate.
The value of the independent vari-
able for the study site must fall
within the range of data included to
use either the rate or equation.
Otherwise local data are needed.
Supplemental local data are sug-
gested when the data plot has less
than six data points.
The number of trips determined
by either the rate or the equation
should fall within the cluster of
data points (i.e., the range of trip
values) found at the study site's
independent variable value.
Otherwise, additional local data
are needed.
use �fU'y;` SSii7i L"4" %1 i,'g3tE F�JTTdf>�e
provi`.ied
• indepe relent vm iab:e is
within ranoz" of, data
and
• either the data plot has at
least 20 points_
• or R2 > 0.76, equation falls
within data cr.,: -tee in punt
and standard deviation >
11(}% of weighted average
rate
Use Vdbigtrfe Average Fame -
4'dtrerr:
• at le st thn? -a da -a points
• independent vartabte is
w thir, range of data
• standard deviation 110% c*
weigtttea average rate
• R2 < 0.75 or no equation
tsrovid -d
• weighted average rats: fails
within data cl:nter in plot
Collect Loc.PJ Data:,Wlerr:
♦ study site is nest cotnpaftils
with FM E farad use'ccd?e
definition
* only 1 or 2 data points;
prefernbty -when fae cr!ewe
data Points
* independent variable does
not fall within range of data
d nei sveightea average
rate line or fitted cute fall
within data d1uster ac!riza of
deve;cpmear;t
In order to put these principles into
practice, two alternative approaches
are available to the analyst. The
highlighted box in this section pre-
sents a checklist for choosing
between using the weighted aver-
age rate, using the regression equa-
tion, and collecting local data. A
detailed step -by -step approach `or
estimating trip generation is pre-
sented in section 3.4 of this chaplet.
Recommended
Procedure for
Estimating Trip
Generation
A step -by -step procedure is shown
below for determining how best to
estimate trip generation using data
contained in Trip Generation. The
procedure is also outlined with
simplified tent in the flow chart in
figure 3.1.
Step 1: Is the development
under analysis consistent with the
desorption of the land use code in
Trip Generation and with the
described or presumed characteris-
tics of development sites for which
data points are provided?
If yes, proceed to step 2.
If no, collect local data for the
land use being anahzed and
establish a local rate. Refer to
chapter 4 for guidelines.
Caution: The analyst should exer-
cise caution before dying to
quantify the trip generation effects
of isolated and rrinor changes in
characteristics of a particular land
use. Trip Generation data are com-
piled firom a wide range of sources
with a potentially high variability in
site characteristics within the
bounds of the land use code defini-
tion. Trip Generation does not pro-
vide information on the secondary
characteristics of the surveyed sites
and therefore any analysis of the
j3
Land Use: 715
Single Tenant Office Building
Description
A single tenant office building generally contains offices, meeting rooms and space for file
storage and data processing for a single business or company, and possibly other service
functions, including a restaurant or cafeteria. General office building (Land Use 710), corporate
headquarters building (Land Use 714), office park (Land Use 750), research and development
center (Land Use 760) and business park (Land Use 770) are related uses..
Additional Data
The average vehicle occupancy for the ten studies where information was submitted was
approximately 1.1 persons per automobile. The vehicle occupancy rates ranged from 1.03 to
1.14 persons per automobile.
The sites were surveyed from the 1970s to the late 1990s throughout the United States.
Trip Characteristics
The trip generation for the a.m. and p.m. peak hours of the generator typically coincided with the
peak hours of the adjacent street traffic; therefore, only one a.m. peak hour and one p.m..peak
hour, which represent both the peak hour of the generator and the peak hour of the adjacent
street traffic, are shown for single tenant office buildings.
Source Numbers
89, 92, 212, 262, 273, 279, 303, 304, 322, 323, 324, 327, 407, 510
Trip Generation, 7th Edition
1173 Institute of Transportation Engineers
4
Land Use: 730
Government Office Building
Description
A government office building is an individual building containing either the entire function or
simply one agency of a city, county, state, federal, or other governmental unit. This type of
building differs from a government office complex (Land Use 733) in that it is not a group of
buildings that are interconnected by pedestrian walkways.
Additional Data
Peak hours of the generator—
The weekday a.m. peak hour typically coincided with the peak hour of the adjacent street
traffic. The weekday p.m. peak hour was between 1:00 p.m. and 2:00 p.m.
The sites were surveyed in 1970 and 2002 in California and Oregon, respectively. Two of the
sites were city halls.
Source Numbers
11,579
Trip Generation, 7th Edition
1199 institute of Transportation Engineers
{b
Land Use: 733
Government Office Complex
Description
A government office complex is a related group of buildings where a variety of functions of a city,
county, state, federal, other governmental unit, or multiple governmental units are carried out.
This complex differs from a government office building (Land Use 730) in that it is a group of
buildings that are interconnected by pedestrian walkways.
Additional Data
The sites were surveyed in 1967 and, 1999 in California.
Source Numbers
Trip Generation, 7th Edition
1240 Institute of Transportation Engineers
A.
Land Use: 750
Office Park
Description
Office parks are usually suburban subdivisions or planned unit developments containing general
office buildings and support services, such as banks, savings and loan institutions, restaurants
and service stations, arranged in a park- or campus -like atmosphere. General office building
(Land Use 710), corporate headquarters building (Land Use 714), single tenant office building
(Land Use 715), research and development center (Land Use 760) and business park (Land Use
770) are related uses.
Additional Data
Some of the regression curves plotted for this land use may produce illogical trip end estimates
for small office parks. When the proposed site size is significantly smaller than the average -sized
facility published in this report, caution should be used when applying these statistics. For more
information, please refer to Chapter 3, "Guidelines for Estimating Trip Generation; of the ITE Trip
Generation Handbook.
The sites were surveyed from the 1970s to the 1990s throughout the United States, with many
conducted in New York.
Trip Characteristics
The trip generation for the a.m. and p.m. peak hours of the generator typically coincided with the
peak hours of the adjacent street traffic; therefore, only one a.m. peak hour and one p.m. peak
hour, which represent both the peak hour of the generator and the peak hour of the adjacent
street traffic, are shown for office parks.
Source Numbers
4, 15, 160, 161, 184, 185, 193, 253, 268, 300, 301, 356; 550
Trip Generation, 7th Edition 1248 Institute of Transportation Engineers
1-7
"RECEIVED AFTER AG
Christopher W. Garrett � yyyyyy�1aa;7yy'1> Sf>o
Direct Dial: (619) 236 -2627 San DI aleoTht� s11Tg9 -337`
christopher.garrett @iw.com Tel: (619) 236 -1234 Fax: (619) 696.7419
www.lw.com
LATHAM &WATKINSLLP
December 18, 2007
VIA PERSONAL DELIVERY
Honorable Mayor Selich and Members of the City Council
City of Newport Beach
3300 Newport Blvd.
Newport Beach, CA 92663
FIRM /AFFILIATE OFFICES
Barcelona New Jersey
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Washington, D.C.
Re: North Newport Center Planned Community (PA2007 -151)
Dear Mayor Selich and Members of the City Council:
On behalf of The Irvine Company, I am submitting the attached comments and exhibits
in response to letters submitted to the City Council on December 11, 2007, regarding the project
proposed by The Irvine Company for North Newport. Center. I respectfully request that the City
include this letter and its attachments in the record of proceedings for the project. Please contact
me with any questions you may have about the following information.
Sincerely,) ^
U`
top
her W. Garrett
t LATHAM & WATKINS LLP
Attachments
SU613832.3
Honorable Mayor Selich and Membe city council •
December 18, 2007
Page 2 -
LATHAMaWATKI NSLLP
TABLE OF CONTENTS
INTRODUCTION............................................................................. ............................... 4
II. DISCUSSION .................................................................................... ...............................
A. The Project Review Process Has Allowed for Ample and
Meaningful Public Participation ............................................ ...............................
5
B. The Project Does Not Reduce Housing ................................. ...............................
6
1. The Statutory Requirement for No Net Loss in Residential
DensityDoes Not Apply ............................................ ...............................
7
2. The Addendum's Housing Analysis Is Valid ............ ...............................
7
C. The Housing Element Is Valid and Does Not Negate the Project's
Consistency with the General Plan ........................................ ...............................
8
1. The Project Complies with the Consistency Requirements
Applicableto the City ................................................ ...............................
9
2. The Housing Element Complies with State Law ....... ...............................
9
a. The Housing Element Provides an Inventory of
Sites for Residential Development and Lists Actions
to Make Those Sites Available ...................... ...............................
9
b. The HCD's Comments Request Clarification but Do
Not Indicate that the Housing Element Is Invalid ......................
10
C. The Project Demonstrates the Validity of the
Housing Element Despite Potential Deficiencies
due to City Charter Section 423 .................. ...............................
12
3. The Statute of Limitations Bars a Collateral Attack on the
HousingElement ..................................................... ...............................
13
a. A 90 -Day Statute of Limitations Applies to
Challenges to a General Plan ....................... ...............................
13
b. The Same Statute of Limitations Also Applies to a
Collateral Attack on a General Plan ............ ...............................
14
C. A Time - Barred Collateral Attack Would
Impermissibly "Exalt Form over Substance" .............................
14
d. The Collateral Attack on the Housing Element Is
Over a Year Late .......................................... ...............................
15
4. Mr. McClendon Has Failed to Show a Nexus Between the
Project and the Alleged Inadequacy in the Housing Element ................
15
a. A Challenge Cannot Simply Point Out Deficiencies
in the General Plan ...................................... ...............................
15
b. No Nexus Between the Project and the Alleged
Deficiency in the Housing Element Exists Because
the Project Helps the City Meet State Housing
Goals............................................................ ...............................
16
D. The Addendum's Climate Change Analysis Complies with CEQA ..................
16
1. The General Plan EIR Met the City's CEQA Obligations .....................
17
SD1613832.3
Honorable Mayor Selich and Membe City Council
December 18, 2007
Page 3
LATHAM&WATKINS«P
0
2. CEQA Does Not Trigger a Subsequent or Supplemental
EIR..................................................:........................ ...............................
18
a. CEQA Does Not Trigger a Subsequent or
Supplemental EIR Because There Is No "New
Information" ................................................ ...............................
20
(1) Climate Change Is Not New Information .......................
20
(2) New Information Within the Meaning of
Section 21166 Must Be Specific to the
Project.............................................. ...............................
21
(3) Legislative Mandates Are Not New
Information...................................... ...............................
22
(4) CARB Has Not Released New Information ...................
22
b. There Are No Substantial Changes in the Project
that Will Require Major Modifications of the
GeneralPlan EIR ......................................... ...............................
23
3. The Addendum Addresses the Project's Impact on Climate
Change..................................................................... ...............................
23
E. The Project Satisfies the Three Separate Requirements for Traffic
Under CEQA, the Traffic Phasing Ordinance, and the General Plan .................
25
1. The Project Satisfies CEQA's Requirements for Traffic
Analysis................................................................... ...............................
26
2. The Project Satisfies the Traffic Phasing Ordinance's
Requirements for Findings and Approval ............... ...............................
27
3. The Project Satisfies the General Plan's Requirement that a
Transfer of Development Rights Be Traffic Neutral ..............................
27
F. The Project Is Consistent with the Land Use El ement ........ ...............................
28
1. The Project Is Compatible with Objectives, Policies,
General Land Uses, and Programs .......................... ...............................
28
2. The Project Provides for Mixed Use that Is Compatible
with the Land Use Element ..................................... ...............................
29
G. City Charter Section 423's Public Vote Requirement Does Not
Apply Because the Project Does Not Require a General Plan
Amendment......................................................................... ...............................
31
III. CONCLUSION ............................................................................... ...............................
31
IV. LIST OF EXHIBITS ....................................................................... ...............................
33
SD1613832.3
Honorable Mayor Selich and Members City Council •
December 18, 2007
Page 4
LATHAM &WATKINSLLP
I. INTRODUCTION
On December 18, 2007, the City Council for the City of Newport Beach will hold its
second hearing on the North Newport Center Planned Community Development Plan and
associated approvals for a project proposed by The Irvine Company. The project implements the
City's General Plan by adopting conforming mixed -use zoning for the North Newport Center
area and provides significant public benefits through the approval of a Development Agreement
with the City.
Public benefits include:
• A four -year option for the City to purchase a site in Newport Center Block 500 to build a
new, 72,000 - square -foot City Hall, plus use of 300 to 375 parking spaces.
• Approximately $27 million for the City to apply toward construction of a new City Hall
facility, regardless of location.
• $11 million for the City to use as follows: One half of the $11 million will be earmarked
as a matching challenge grant to apply toward contributions to the construction of the
Oasis Senior Center. The balance will be applied to any qualified park use as determined
by the City.
• Dedication to the City of the roughly three -acre open space parcel north of San Miguel
Drive, between Avocado Avenue and MacArthur Boulevard.
• Dedication to the City of the four -acre Lower Castaways site for open space or
environmental use.
• $2.5 million of additional traffic improvements and new traffic signals in the Newport
Center area, over and above required traffic mitigation.
• Over $1 million in water quality enhancements in Fashion Island.
The City Council held its first public hearing on the project on December 11, 2007. A
letter signed by John McClendon of Leibold, McClendon & Mann, on behalf of the Greenlight
group and others, was hand delivered to the City Council shortly before the meeting. The letter
was over 170 pages long and included a CD of additional material. In summary, the letter sought
denial of the project and was critical both of the City's Housing Element and of the
environmental assessment conducted for the project. The letter also asserted that the project
should be subject to Section 423 of the City Charter, thereby requiring a public vote.
In addition, a second letter on behalf of the. Greenlight group and others was submitted by Orosz
Engineering Group, Inc. concerning traffic. Neither Mr. McClendon nor a representative of
Orosz Engineering appeared or submitted written comments at any of the previous public
meetings concerning this project.
As detailed below, the project complies with state and local environmental and land use
laws, is consistent with the General Plan, and epitomizes the mixed -use development approved
SD \613832.3
Honorable Mayor Selich and Member City Council •
December 18, 2007
Page 5
LATHAM &WATKINS«P
in the General Plan and encouraged within the City. The Irvine Company therefore respectfully
requests that the City Council approve the project.
H. DISCUSSION
A. The Project Review Process Has Allowed for Ample and Meaningful Public
Participation
The project implements the General Plan and advances mixed use in an important
commercial and community center. In keeping the importance of the project area to the
community, the public review of the project has proceeded over the course of more than six
weeks. Milestones in the project review process were:
• A joint study session where The Irvine Company presented the project to the City
Council and the Planning Commission on October 30, 2007
• A Planning Commission hearing on the project on November 15, 2007
• A Planning Commission hearing on the project on November 29, 2007
• A City Council hearing on the project on December 11, 2007
The public review process will conclude with the second City Council hearing on December 18,
2007.
Starting with the joint study session, the City provided the public with written
information on the project. At each of the Planning Commission hearings, the City also provided
the public with staff reports analyzing all aspects of the project, including issues relating to
housing, environmental impacts, and traffic analysis. The numerous public comments made at
the second Planning Commission hearing on November 29, 2007, reflect the accessibility of
information on the project before that the hearing.
Several articles about the project in the local press demonstrate the City's and The Irvine
Company's willingness to engage the public in review of the project. For example, John
Heffernan, former Newport Beach mayor, noted in a Daily Pilot piece that he had expressed
concerns with the project in October and November. John Heffernan, Opinion, Irvine Co.
Housing, Office Deal Worthwhile, Daily Pilot, Dec. 10, 2007, available at http: / /dailypilot.com
(Ex. 1). After expressing those concerns, Heffernan had reviewed the project's "development
agreement in detail, spoken with representatives of the Irvine Co. and also with Mayor Steve
Rosansky and Mayor Pro Tem Ed Selich, who were the chief negotiators for the city, about a
number of [his] concerns." Id.
Once Heffernan learned more about the project, he concluded that the project "will
ensure that [Newport Center] continues to attract and remain a site for economic growth and
vitality in the future." Id.
SD1613832.3
Honorable Mayor Selich and Members City Council •
December 18, 2007
Page 6
LATHAM&WATKINSLLP
Other members of the community also reviewed the project carefully, as evidenced by a
joint opinion piece by the president of the Newport Beach Chamber of Commerce, a community
activist involved in Stop Polluting Our Newport ( "SPON "), and a former Newport Beach City
Council member also involved in SPON. Richard Luehrs, Jan D. Vandersloot & Jean Watt,
Commentary, City- Irvine Co. Plan Beneficial, Daily Pilot, Nov. 30, 2007, available at
http: / /dailypilot.com (Ex. 2); Alicia Robinson, Group Fights City Hall Move, Daily Pilot, June
27, 2007, available at http: / /dailypilot.com (Ex. 3).
These three community members wrote the opinion piece the day after the second
Planning Commission hearing, stating that although they "have rarely seen eye -to -eye on key
issues," they had "decided to come together to support the Newport Center mixed -use plan and
development agreement because we believe that this proposal provides the unique and right
opportunity for the community ...." Id.
These opinion pieces not only reflect broad -based support for the project but also
demonstrate that the project review process has allowed for timely and meaningful public
participation. Mr. McClendon's characterization of the project as "being processed with such
unseemly haste" is disingenuous. The reality is that Mr. McClendon and his clients had ample
opportunity to comment during a six -week period before it first opposed the project at the City
Council's hearing on December 11, 2007.
B. The Project Does Not Reduce Housing
Mr. McClendon mischaracterizes the project by saying that through the associated zoning
amendment, the project reduces the number of residential units available for development in
Newport Center from 450 to 430. This is simply wrong.
The General Plan allocates 450 residential units for development in specified areas of
Newport Center. City of Newport Beach, Cal., General Plan 2006 Update, at 3 -15 (adopted July
25, 2006) (hereafter "General Plan"). Mayor Steve Rosansky (now a Councilmember) and
Councilmember Ed Selich (now Mayor) explained the origin of this number in an opinion piece
on December 8, 2007. Ed Selich & Steve Rosansky, Opinion, Community Commentary: Details
oflrvine Co. Deal, Daily Pilot, Dec. 8, 2007, available athttp://www.dailypilot.com (Ex. 4).
This number reflects a recommendation that the citizen's General Plan Advisory Committee
made and that the voters approved in 2006. Id. This number does not reflect a request by The
Irvine Company or other property owners in Newport Center. Id.
The project in no way reduces the number of residential units permitted for development
in Newport Center under the General Plan. Instead, the project actually implements the General
Plan by giving The Irvine Company the vested right to construct 430 residential units on
property that it owns in Newport Center Block 600. The remaining 20 residential units permitted
under the General Plan are available for future development in other parts of Newport Center.
Indeed, another property owner in Newport Center has indicated an interest in constructing those
20 residential units. Those 20 residential units remain available for development and are
SD \613832.3
Honorable Mayor Selich and Members City Council •
December 18, 2007
Page 7
LATHAM &WATKINSLLP
completely unaffected by The Irvine Company's project. No reduction in permitted residential
units has therefore occurred.
The project provides the detailed implementation procedures and approvals necessary for
construction of 430 housing units. No additional discretionary approvals will be needed for the
construction of these units, other than the approval of a subdivision map should the units be
developed as condominiums. The development agreement for the project will.give The Irvine
Company the vested right to build these units "by right," as long as the units meet the detailed
standards and regulations in the North Newport Center Planned Community Development Plan,
which the City is processing as part of the project approval.
The Statutory Requirement for No Net Loss in Residential Density Does Not
Apply
Mr. McClendon claims that the project violates the statutory requirement that a city not
reduce residential density unless it makes written finding supported by substantial evidence that:
(1) the "reduction is consistent with the adopted general plan, including the housing element"
and (2) the "remaining sites identified in the housing element are adequate to accommodate the
jurisdiction's share of the regional housing need pursuant to Section 65584." See Cal. Gov't
Code § 65863 (Deering 2007). Since the project does not reduce the residential density allocated
to Newport Center, the no net loss in density rule does not apply. Mr. McClendon's claim that
the project violates the no net loss in density rule is therefore wrong by its own terms.
2. The Addendum's Housing Analysis Is Valid
The City prepared the North Newport Center Addendum to the Environmental Impact
Report for the City of Newport Beach General Plan 2006 Update (the "Addendum ") in
compliance with the California Environmental Quality Act ( "CEQA "), as discussed below. Mr.
McClendon contends that the Addendum improperly failed to discuss the impact of "the
reduction of the residential density within Newport Center" "on the supply of residential units
available within and without the City." But since the project does not reduce the residential
density available in Newport Center, the Addendum did not need to include such as discussion.
Again, Mr. McClendon's contention is wrong on its face.
Mr. McClendon also maintains that the project involves new information or changed
circumstances relating to housing that requires a new environmental impact report ( "EIR ") rather
than the Addendum to analyze the project. Mr. McClendon claims that new information or
changed circumstances exist because the project involves development of only 430 residential
units even though the General Plan permits 450 residential units in Newport Center.
The Irvine Company's application to develop only 430 residential units, however, in no
way presents new information or changed circumstances. The General Plan continues to permit
450 residential units in Newport Center, and the remaining 20 residential units permitted under
the General Plan are still available for future development. The project therefore does not
SD1613832.3
Honorable Mayor Selich and Members City Council
December 18, 2007
Page 8
LATHAM &WATKINS«o
propose any changes to the General Plan's designations for residential development in Newport
Center.
Furthermore, no new information or changed circumstances affect the validity of the
City's previously certified finding that the EIR for the City of Newport Beach General Plan 2006
Update (the "General Plan EIR ") adequately analyzed permitting 450 residential units in
Newport Center. In the absence of new information or changes circumstances, Mr. McClendon's
challenge to the Addendum's housing analysis is unsubstantiated.
Mr. McClendon also asserts that the Addendum's housing analysis is flawed because the
project does not propose to develop any affordable housing in Newport Center. CEQA,
however, does not include any substantive affordable housing requirements. The project's
provision of affordable housing (which will be conveniently located within walking distance of
Newport Center and will be implemented in compliance with CEQA) therefore has no bearing on
the validity of the Addendum's housing analysis.
C. The Housing Element Is Valid and Does Not Negate the Project's Consistency with
the General Plan
As detailed below, the project in this case is consistent with the General Plan. Mr.
McClendon contends, however, that the project is invalid because the General Plan's Housing
Element is deficient and because the project is linked to that deficiency by reducing residential
density in Newport Center. This argument is insupportable for several reasons. First, as
described above, the project in no way reduces the number of residential units in Newport Center
permitted by the General Plan. Second, as discussed below, the Housing Element is indeed valid
because it complies with state law.
Regardless of the Housing Element's validity, Mr. McClendon cannot challenge the
project based on alleged problems with the.Housing Element because: (1) the statute of
limitations for challenging the Housing Element has run and (2) the project does have a nexus to
alleged deficiencies in the Housing Element.
Mr. McClendon's decision to use The Irvine Company's project as a platform for
attacking the Housing Element as noncompliant reflects a common phenomenon. As a fellow at
the nonpartisan Public Policy Institute of California recently noted in a comprehensive analysis
of state housing element law, "[n]oncompliant housing elements make attractive legal targets for
parties who seek to invalidate local land -use or redevelopment decisions —even though some of
these parties are pursuing ends that do not always support housing development." Paul G.
Lewis, California's Housing Element Law: The Issue of Local Noncompliance 3 (Public Policy
Inst. of Cal. 2003) (Ex. 5).
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1. The Project Complies with the Consistency Requirements Applicable to the
City
Charter cities such as the City are exempt from the requirement that zoning be consistent
with the general plan, unless the charter city requires consistency by its charter or by local
ordinance. Cal. Gov't Code § 65803; see also City oflrvine v. Irvine Citizens Against
Overdevelopment, 25 Cal. App. 4th 868, 874 (Ct. App. 1994); Garat v. City of Riverside, 2 Cal.
App. 4th 259, 281 (Ct. App. 1991), overruled on other grounds in Morehart v. County of Santa
Barbara, 7 Cal. 4th 725, 743 n.I l (1994). Here, neither the City's charter nor a local ordinance
requires consistency with the general plan.
The California Development Agreement Statute (California Government Code Sections
65864- 65869.5), however, prohibits approval of a development agreement unless the "legislative
body finds that the provisions of the agreement are consistent with the general plan and any
applicable specific plan." Cal. Gov't Code § 65867.5 (Deering 2007). In this case, the approvals
associated with the project include approval of a zoning amendment and a development
agreement. The following discussion therefore proceeds as though the consistency requirement
applies to all approvals associated with the project.
2. The Housing Element Complies with State Law
State law requires every city to adopt a housing element as part of its general plan. Cal.
Gov't Code § 65302(c). The housing element must comply with several state statutory
provisions, including guidelines adopted by the California Department of Housing and
Community Development ( "HCD "). Id. § §65580 - 65589.8. The HCD guidelines, however, are
advisory rather than mandatory. Id. § 65585(a).
In addition, courts require only that a city "substantially complies" with state statutory
requirements. Cal. Gov't Code § 65587(b); accord Hoffmaster v. City of San Diego, 55 Cal.
App. 4th 1098, 1111 (Ct. App. 1997); Hernandez v. City of Encinitas, 28 Cal. App. 4th 1048,
1067 -68 (Ct. App. 1994). The courts will not examine the housing element on its merits.
Hernandez, 28 Cal. App. 4th at 1067 -68. The courts have defined "substantial compliance" as
"`actual compliance in respect to the substance essential to every reasonable objective of the
statute,' as distinguished from `mere technical imperfections of form. "' Camp v. Bd. of
Supervisors, 123 Cal. App. 3d 334, 348 (Ct. App. 1981) (quoting Stasher v Harger- Haldeman,
58 Cal. 2d 23, 29 (1962)).
a. The Housing Element Provides an Inventory of Sites for Residential
Development and Lists Actions to Make Those Sites Available
In this case, the City's Housing Element complies with the statutory requirements for a
housing element. As Mr. McClendon notes, a housing element must include, among other
things, an "inventory of land suitable for residential development," that contains a `listing of
properties by parcel number or other unique reference." Cal. Gov't Code §§ 65583(a)(3),
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65583.2(a) -(b). The housing element must also "identify actions that will be taken to make sites
available during the planning period." Id. § 65583(c)(1).
Mr. McClendon contends that the City's 1998 -2008 Housing Element does not include
the inventory of land suitable for residential development or a list of actions that will be take to
make sites available during the planning period. The Housing Element, however, explicitly
contains this information.
The Housing Element contains the inventory of lands suitable for residential
development, including site - specific designations of parcels available for residential
development, on pages 5 -34 to 549 of the General Plan. The Housing Element also identifies
specific policies and programs to make sites available for residential development during the
planning period of 1998 -2008. These policies and programs appear on pages 5 -71 to 5 -72 of the
General Plan. Mr. McClendon thus appears to have ignored the actual language of the Housing
Element.
b. The HCD's Comments Request Clarification but Do Not Indicate that
the Housing Element Is Invalid
Mr. McClendon asserts that the Housing Element is invalid because HCD has found the
Housing Element to be out of compliance with state requirements for housing elements. But a
finding of noncompliance, if it were made, does not automatically invalidate a housing element.
Instead, a finding a compliance simply creates the benefit of a rebuttable presumption of the
housing element's validity in a court challenge. Cal. Gov't Code § 65589.3. In its statutorily -
provided review pursuant to California Government Code Section 65585(h), HCD reviewed the
City's Housing Element within the required 90 -day period, which ran from HCD's receipt of the
adopted Housing Element. HCD then reported its findings to the City. Although HCD has asked
for clarification from the City on several issues relating to the Housing Element, and although
HCD did not make an express finding of substantial compliance during the 90 -day review
period, HCD did not indicate during this review period that the Housing Element failed to
include components which were essential to comply with specified state law housing element
requirements.
Thus, an analysis of the validity of the Housing Element in this case does not simply stop
with noting that HCD's website indicates a status of noncompliance. The analysis must
recognize that the City and HCD did engage in the review process pursuant to California
Government Code Section 65585(h), and that HCD provided the City with its findings regarding
the Housing Element. Since receiving those findings from HCD, the City has collaborated with
HCD to address the questions and comments contained in HCD's review.
Careful examination of HCD's comments reveals that HCD's concerns do not necessarily
reflect that the Housing Element is invalid. Rather, those comments ask for clarification on key
issues. And as discussed in the next section, The Irvine Company's project directly addresses
these concerns by demonstrating the City's ability to implement state housing goals.
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The key letter that Mr. McClendon cites is from Cathy Creswell, Deputy Director of
HCD, to Greg Ramirez, Senior Planner at the City, dated September 10, 2007 (Ex. 6)
( "September 2007 Letter "). The first comment on the Housing Element reads.
Newport Beach should be diligent in monitoring the potential impacts of Charter
Section 423 as identified in Housing Program 2.3.1. Should monitoring reveal
that residential projects are being subjected to the voter approval process, the City
must take the appropriate steps (in a timely manner) to remove governmental
constraints and provide adequate sites. The revisions also indicate the City is
continuing to work on a comprehensive zoning ordinance update, which when
completed,.will establish zoning designations consistent with the new land -use
designations established as part of the general plan update.
Id. at 1.
Although this comment recommends that the City diligently monitor the effects of City
Charter Section 423 and directs the City on how to respond to that monitoring, the comment does
not indicate that the Housing Element is invalid.
The second comment on the Housing Element reads:
The John Wayne Airport and Newport Center areas offer the greatest residential
development potential during the remainder of the planning period, through a
variety of development strategies, including mixed -use, infill and reuse.
Therefore, as described in the Department's previous review ... the element must
demonstrate these strategies are realistic and viable such that they can
accommodate Newport Beach's remaining share of the regional housing need,
particularly for lower- income households.
VIO
This comment does not state that the City's strategies for maximizing residential
development in the John Wayne Airport and Newport Center areas are invalid. The comment
instead sets forth the standard that HCD will use to evaluate the efficacy of those strategies in the
future.
The third comment calls for expanded analysis of the land suitable for residential
development but does not indicate that the City's inventory of land suitable for residential
development is fundamentally flawed. Id. at 3.
The fourth comment states that the City's strong reliance on a combination of mixed -use
and redevelopment to accommodate its remaining housing needs "must be complemented with
strong programs and implementation actions to facilitate such development (i.e., specific
commitment to provide regulatory and/or financial incentives and promote the development of
underutilized and/or mixed -use sites)." Id. at 3. Again, this comment does not state that the
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City's focus on using mixed -use and redevelopment is invalid. The comment instead provides
examples of appropriate programs and implementation actions to ensure successful mixed -use
development and redevelopment in the future. Id.
The final comment acknowledges that the City is working on a comprehensive zoning
ordinance update and provides recommendations for that update. Id. The comment underscores
that the City must "demonstrate that in addition to `reviewing' residential projects, they can
actually receive final approval during the time period which the zoning ordinance is being
updated." Id. The final comment ties back to the first comment by stating that if any of "the
City's new land -use controls will impede residential development; the element must include a
program to mitigate and/or remove any identified constraints." Id. The final comment, like the
first comment, directs the City on how to respond to future issues with the City's new land use
laws. Id.
Mr. McClendon also cites the City's lack of an Inclusionary Housing Ordinance and its
acknowledgment in its annual housing implementation report that it needs to produce more
affordable housing units as evidence that the Housing Element is invalid. These issues do not
relate, however, to whether the Housing Element meets the statutory requirements to be valid.
Furthermore, Mr. McClendon does not provide any evidence that the programs and policies in
the Housing Element do not comply with state law.
C. The Project Demonstrates the Validity of the Housing Element
Despite Potential Deficiencies due to City Charter Section 423
The City's ability to address HCD's concerns through approval of the project itself
confirms the validity of the Housing Element. First, the project will not be "subjected to the
voter approval process," which is responsive to HCD's first comment regarding the potential for
City Charter Section 423 to constrain residential development. September 2007 Letter, at 1 (Ex.
6). The City's action on the project demonstrates that the City is attempting to implement
Section 423 in a manner that consistent with the state housing law requirements for the Housing
Element and the provision of housing within the City.
Second, the project represents the first step in the City' ongoing process to develop
"zoning designations consistent with the new land -use designations established as part of the
general plan update." Id. Indeed, the standards for mixed -use residential development contained
in the North Newport Center Planned Community Development Plan (the "Development Plan ")
can serve as a guide for undertaking the zoning update in others areas of the City encouraged by
HCD.
Third, the Development Plan, the Development Agreement, and the Affordable Housing
Implementation Plan ( "AHIP ") associated with the project are examples of "strong programs and
implementation actions to facilitate" mixed -use and redevelopment to accommodate the City's
remaining housing needs. The project therefore directly responds to HCD's recommendations
regarding such programs and implementation actions. Id. at 2.
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Fourth, the Development Plan will assist the City in demonstrating to HCD that mixed -
use and redevelopment are viable options within the City. The Development Plan also addresses
HCD's comments about expanding the discussion of providing HCD with an expanded analysis
of the land suitable for residential development. Id. .
Last, the project directly address HCD's comments regarding the City's new land use
controls. The project, which the City is processing concurrently with the zoning contained in the
Development Plan, serves as an example of residential development that will be able to "actually
receive final approval during the time period which the zoning ordinance is being updated." Id.
at 3. Additionally, the project demonstrates how the City's new land use controls do not
"impede residential development" in Newport Center. Id.
In sum, the project reflects the validity of the Housing Element by directly addressing
HCD's concerns and providing the City with its first opportunity to approve residential
development in conjunction with approval of new zoning that conforms to the City's recently
updated General Plan.
I The Statute of Limitations Bars a Collateral Attack on the Housing Element
a. A 90 -Day Statute of Limitations Applies to Challenges to a General
Plan
Even if the Housing Element were not valid, Mr. McClendon's challenge to the project
based on alleged inadequacy of the Housing Element is time - barred. California Government
Code Section 65009(c)(1)(A) establishes a mandatory 90 -day limitations period to file and serve
an action to "attack, review, set aside, void, or annul a decision of a legislative body to adopt or
amend a general plan or specific plan." Cal. Gov't Code § 65009(c)(1)(A) (Deering 2007). The
section explicitly provides that the 90 -day limitations period applies to "an action attacking a
general plan or mandatory element thereof on the basis that it is inadequate." Id. The mandatory
elements of a general plan include a housing element. Id. § 65302.
Section 65009(a) explains the rationale behind the 90 -day limitations period. The section
states that "there currently is a housing crisis in California and it is essential to reduce delays and
restraints upon expeditiously completing housing projects." Id. § 65009(a)(1). The section also
states that "a legal action or proceeding challenging a decision of a city ... has a chilling effect
on the confidence with which property owners and local governments can proceed with
projects." Id § 65009(a)(2).
The section goes on to declare that legal actions that challenge "the implementation of
general plan goals and policies that provide incentives for affordable housing, open -space and
recreational opportunities, and other related public benefits, can prevent the completion of
needed developments even though the projects have received required governmental approvals."
Id. The 90 -day limitations period is therefore necessary to "provide certainty for property
owners and local governments" regarding land use decisions. Id. § 65009(a)(3).
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Consistent with this express legislative intent, Section 65009(e) bars "any further action
or proceeding" that challenges a general plan or its elements after the limitations period has run.
Id. § 65009(e).
b. The Same Statute of Limitations Also Applies to a Collateral Attack
on a General Plan
The California Court of Appeal has affirmed that a challenge to a land use approval
cannot serve as a forum for a time - barred collateral attack on a general plan or mandatory
general plan element. In A Local and Regional Monitor v. City of Los Angeles ( "ALARM'), the
petitioner challenged an EIR for an office building, known as the "phase IA project." 16 Cal.
App. 4th 630, 634 (Ct. App. 1993). The petitioner alleged that the project was inconsistent with
the city's general plan because the housing, circulation, and land use elements of the general plan
were inadequate. Id. at 637. The city had approved updates to the general plan about 11 months
before the petitioner filed its action. Id. at 649.
The court held that the 90 -day limitations period under Section 65009 barred the
petitioner's action. Id. at 648 -49. The court explained that the limitations period applied
because "plaintiff is really using the phase IA project as a vehicle to make an untimely collateral
attack on the city's general plan itself." Id. at 648. The court went on to conclude that "to the
extent that plaintiffs arguments are a thinly veiled challenge to the claimed inadequacy of the
city's circulation, housing, and land -use elements, they are also time - barred ...." Id.
In Garat, the petitioners challenged two zoning enactments on the grounds that they were
inconsistent with the general plan because the general plan was invalid. 2 Cal. App. 4th at 281.
The court held that the challenge could not proceed on the grounds that the general plan was
deficient. Id. at 289. The court ruled that a "direct attack on the validity of the City's general
plan, inasmuch as it is an attack on `a general plan or mandatory element thereof on a basis that
is inadequate,' is subject to" limitations period set forth in Section 65009(c). Id.
C. A Time - Barred Collateral Attack Would Impermissibly "Exalt Form
over Substance"
In Honig v. San Francisco Planning Department, a petitioner challenged a building
permit based on alleged deficiencies in an associated variance that had been approved more than
90 days before. 127 Cal. App. 4th 520, 524 (Ct. App. 2005). The court found that the "attack on
the building permit is, in reality, nothing more than a challenge to the variance." Id. at 528. The
court then noted that the "variance had been approved by the zoning administrator, and there is
no doubt that petitioner's challenge to the variance was subject to Government Code section
65009." Id. The court also noted the "important legislative purpose of permitting the rapid
resolution of legal challenges to local zoning and planning decisions." Id.
The court thus ruled that the 90 -day limitations period under Section 65009 barred the
challenge to the building permit. Id. at 527 -28. The court reasoned that it "would exalt form
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over substance to refuse to apply that section to a challenge to a different zoning or planning
decision where that decision rested entirely on the variance." Id. at 528.
Although Honig did not involve a challenge based on an allegedly inadequate general
plan or mandatory general plan element, it involved a challenge to one land use decision based
on alleged deficiencies in a separate land use decision subject to Section 65009. The court's
reasoning in Honig therefore applies to a challenge based on an allegedly inadequate mandatory
general plan element. And based on that reasoning, allowing such a challenge after the 90-day
limitations period would impermissibly "exalt form over substance." Id.
d. The Collateral Attack on the Housing Element Is Over a Year Late
Here, Mr. McClendon has launched a collateral attack on the Housing Element by
arguing that the project cannot be approved because the Housing Element is invalid. This
collateral attack falls outside the 90 -day limitations period for challenging the Housing Element,
which the City Council approved on July 25, 2006. City of Newport Beach, Cal., Resolution No.
2006 -76 (July 25, 2006). Consistent with ALARM, Garat, and Honing, Section 65009(c)(1)(A)
bars Mr. McClendon's collateral attack on the Housing Element. The alleged inadequacy of the
Housing Element therefore cannot serve as a basis for challenging the project.
4. Mr. McClendon Has Failed to Show a Nexus Between the Project and the
Alleged Inadequacy in the Housing Element
a. A Challenge Cannot Simply Point Out Deficiencies in the General
Plan
Even if Mr. McClendon's collateral attack on the Housing Element had merit and was not
time - barred, their challenge cannot proceed because they have failed to show a connection
between the project and the alleged deficiencies in the Housing Element. The California Court
of Appeal has ruled that a plaintiff cannot challenge an agency action simply by pointing out
deficiencies in the general plan. Flavell v. City of Albany, 19 Cal. App. 4th 1846, 1852 -53 (Ct.
App. 1993); Garat, 2 Cal. App. 4th at 297 -98.
The plaintiff bears the burden to establish a "nexus" between the agency action and the
alleged deficiencies in the general plan. Flavell, 19 Cal. App. 4th at 1852; Garat, 2 Cal. App.
4th at 297 -98. The plaintiff cannot simply point out inadequacies in the general plan. Flavell, 19
Cal. App. 4th at 1852 -53; Garat, 2 Cal. App. 4th at 297 -98. It must, in addition to this, establish
that the deficiencies "have resulted in certain consequences" and explain how those
consequences affect the agency action. Flavell, 19 Cal. App. 4th at 1852 -53; accord Garat, 2
Cal. App. 4th at 297 -98.
Similarly, in Flavell, the petitioner challenged an ordinance establishing residential off -
street parking requirements based on the argument that the ordinance was invalid because it was
part of a general plan rendered invalid by failure to revise the housing element in a timely
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manner. 19 Cal. App. 4th at 1852 -53. The court rejected the argument, finding that the
petitioner "has made no showing as to how the inadequacy of failing to timely revise the element
would have any bearing or effect on the ordinance." Id. at 1853.
In Garat, the plaintiffs challenged an city ordinance protecting agriculture lands from
"premature" development and requiring the city to develop a general plan for areas within the
city's sphere of influence that the city's existing general plan did not already cover. Garat, 2
Cal. App. 4th at 271. The plaintiffs based the challenge in part on the argument that the
ordinance was invalid because it was part of a general plan with several deficiencies. Id. at 297-
98.
The alleged deficiencies were with the housing element for improperly omitting
quantitative objectives for affordable housing, the land use element for improperly omitting
standards of building intensity for non - residential uses, the noise element for improperly
omitting noise contours for local industrial plants, and the circulation element for not accounting
for recent land use changes. Id. at 298. Since the plaintiffs provided no explanation of a nexus
between these alleged deficiencies and the ordinance, the court rejected them as a basis for
invalidating the ordinance. Id. at 297 -98.
b. No Nexus Between the Project and the Alleged Deficiency in the
Housing Element Exists Because the Project Helps the City Meet State
Housing Goals
Mr. McClendon points to only one connection between the alleged deficiencies in the
Housing Element and the project —the reduction in the number of residential units available for
development in.Newport Center. As discussed above, Mr. McClendon has mischaracterized the
project, which in no way reduced the number of residential units available for development in
Newport Center. Therefore, Mr. McClendon has failed to establish the nexus necessary to
challenge the project based on alleged deficiencies in the Housing Element.
Moreover, the project actually responds to HCD's concerns about the Housing Element
by implementing the City's mixed -use and redevelopment housing goals. The project also
responds to HCD's interest in seeing the City approve residential development at the same time
that it updates its zoning in conformance with the General Plan. Given the beneficial effect of
the project with respect to the City's housing requirements, no nexus between the project and
alleged deficiencies in the Housing Element exists.
D. The Addendum's Climate Change Analysis Complies with CEQA
Mr. McClendon has argued that the Addendum fails to analyze the project's impact on
climate change. What Mr. McClendon fails to understand is that the General Plan E1R
satisfactorily met the City's CEQA obligations for reviewing environmental impacts, and in
preparing the Addendum, the City does not intend, nor is it authorized, to duplicate the
exhaustive environmental review conducted in preparation of the General Plan E1R. Mr.
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McClendon argued, without putting forth any authority, that: (1) the General Plan EIR is
deficient because it did not inventory the project's projected greenhouse gas ( "GHG ") emissions,
(2) the General Plan EIR is deficient without "a significance determination for the project's
greenhouse gas emissions," and (3) that new information is now known that triggers a new EIR.
These allegations are false.
The General Plan EIR satisfies all of the requirements of CEQA, and it is appropriate to
rely on the Addendum because: (1) the requirements for a new EIR are not triggered, and (2) the
information about climate change submitted by Mr. McClendon was known at the time that the
General Plan EIR was certified. The only triggers for a new EIR are the introduction of changes
in the project, changes in the circumstances of.the project, or new information that was not
known and could not have been known at the time the General Plan EIR was certified that is
specific to the particular project.
Nothing has changed since the certification of the General Plan EIR. Mr. McClendon
offered no new information specific to the project: It merely reiterated the general understanding
that climate change poses a global threat, and it outlined some of the effects that could occur in
California in general. Mr. McClendon fails to submit any material to support whether or not the
impact of this mixed -use project has changed since the General Plan EIR or whether the impact
will be different compared to the existing housing, office, commercial and other buildings now
used by the future residents and occupants of the North Newport Center. Mr. McClendon
claimed that an EIR is required as a result of new information in the form of "interim guidelines"
from the California Air Resources Board ( "CARB ") "as well as other legislation." Although it is
unclear to what guidelines or legislation Mr. McClendon is referring, neither item is considered
within the CEQA guidelines to be new information unless it is specific to the particular project.
Nonetheless, even though CEQA did not require an analysis of GHG emissions, the City
exercised its discretion and addressed climate change in the Addendum. The Addendum
addresses the project's cumulative impact on climate change. The analysis concluded that the
cumulative impact of GHG emissions resulting from the project would be offset by the benefits
of the proposed mixed -use development, which would reduce vehicle traffic and improve
accessibility.
1. The General Plan EIR Met the City's CEQA Obligations
Mr. McClendon confuses the obligations of the City under CEQA when it claims that the
General Plan EIR and Addendum are deficient under CEQA. The General Plan EIR was
comprehensively prepared and certified by the City in accordance with CEQA. With regards to
impacts on air quality, the City implemented the maximum feasible mitigation measures. In the
absence of changes in the project, changes in the circumstances of the project, or new
information that was not known and could not have been known at the time of certification, a
new EIR was not authorized, so the Addendum was prepared and attached to the General Plan
EIR. The Addendum is not a new EIR that must duplicate the review undertaken by the General
Plan EIR.
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The numerous claims of Mr. McClendon regarding the inadequacy of the Addendum are
misplaced because the General Plan EIR satisfied the CEQA requirements. The General Plan
EIR "considered all phases of the project," was "prepared with a sufficient degree of analysis to
provide decision - makers with information which enables them to make a decision which
intelligently takes into account environmental consequences," "included a discussion of potential
energy impacts of proposed projects," considered "indirect and secondary effects," considered
whether the "environmental effects may be significant," and adopted all feasible mitigation
measures. The General Plan EIR was required to and did address all of the requirements under
CEQA. Inventorying all GHG emissions was not and is not a requirement under CEQA.
Without submission of new information about the project's impact, a new EIR is not authorized.
2. CEQA Does Not Trigger a Subsequent or Supplemental EIR
An addendum suffices to meet the City's CEQA obligations. Although CEQA sets a
relatively low threshold for preparation of an initial EIR, once an EIR has been certified by the
lead agency, much more is required to trigger the preparation of a subsequent or supplemental
EIR under California Public Resources Code section 21166 ( "section 21166 "). Section 21166
states that no subsequent or supplemental EIR shall be required unless one or more of the
following events occurs:
(a) Substantial changes are proposed in the project which will require
major revisions of the environmental impact report.
(b) Substantial changes occur with respect to the circumstances under
which the project is being undertaken which will require major
revisions in the environmental impact report.
(c) New information, which was not known and could not have been
known at the time the environmental impact report was certified as
complete, becomes available.
Cal. Pub. Res. Code § 21166.
If a project does change, if its circumstances change, and/or if new information becomes
available, the CEQA Guidelines (Cal. Code Regs. tit. 14, § 15000 et seg.) require that the lead
agency determine whether to prepare a subsequent EIR, supplemental EIR, or an addendum to an
EIR. CEQA Guidelines § 15162(b); § 15164(a).
Even if a subsequent or supplemental EIR is unnecessary, an "addendum" to a previously
certified EIR will be prepared if "some changes or additions are necessary but none of the
conditions described in section 15162 of the Guidelines) calling for preparation of a subsequent
Under the CEQA Guidelines, three factors can necessitate the preparation of a subsequent or supplemental
EIR:
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0
EIR have occurred." CEQA Guidelines § 15164(a). An addendum to an EIR need not be
publicly circulated, but will be attached to the previously certified EIR. CEQA Guidelines §
15164(c).
A lead agency's decision not to prepare a subsequent or supplemental EIR will be upheld
so long as "`the [administrative] record as a whole contains substantial evidence to support a
determination that the changes in the project [or its circumstances] were not so `substantial' as to
require `major' modifications to the EIR. "' River Valley Preservation Council v. Metropolitan
Transit Dev. Bd., 37 Cal. App. 4th 154, 166 (Ct. App. 1995), quoting Bowman v. City of
Petaluma, 185 Cal. App. 3d 1065, 1075 (Ct. App. 1986). In applying this standard, a reviewing
court must resolve any doubt in favor of the lead agency. River Valley Preservation Council, 37
Cal. App. 4th at 168, citing Laurel Heights Improvement Ass'n v. Regents of Univ. of Cal. 6 Cal.
4th 1112, 1135 (Ct. App. 1993).
Pursuant to section 15162, the City has determined, on the basis of substantial evidence
in the light of the whole record, that the project does not propose substantial changes to the .
project contemplated by the General Plan EIR, no substantial changes would occur which would
require major revisions to the General Plan EIR, and no new information of substantial
importance has been revealed since the certification of the General Plan EIR. Therefore, an
addendum was prepared rather a subsequent or supplemental EIR.
(1) Substantial changes are proposed in the project which will require major revisions of the previous EIR
or negative declaration due to the involvement of new significant environmental effects or a substantial
increase in the severity of previously identified significant effects;
(2) Substantial changes occur with respect to the circumstances under which the project is undertaken
which will require major revisions of the previous EIR or negative declaration due to the involvement of
new significant environmental effects or a substantial increase in the severity of previously identified
significant effects; or
(3) New information of substantial importance, which was not known and could not have been known with
the exercise of reasonable diligence at the time the previous EIR was certified as complete or the negative
declaration was adopted, shows any of the following: (A) The project will have one or more significant
effects not discussed in the previous EIR or negative declaration; (B) Significant effects previously
examined will be substantially more severe than shown in the previous EIR; (C) Mitigation measures or
alternatives previously found not to be feasible would in fact be feasible and would substantially reduce
one or more significant effects of the project, but the project proponents decline to adopt the mitigation
measure or alternative; or (D) Mitigation measures or alternatives which are considerably different from
those analyzed in the previous EIR would substantially reduce one or more significant effects on the
environment, but the project proponents decline to adopt the mitigation measure or alternative.
CEQA Guidelines §§ 15162(a); 15163(ax1).
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a. CEQA Does Not Trigger a Subsequent or Supplemental EIR Because There
Is No "New Information"
Under section 21166(c), a subsequent or supplemental EIR will be required if "[n]ew
information, which was not known and could not have been known at the time the environmental
impact report was certified as complete, becomes available."
Mr. McClendon describes the possible effects of global warming on the state of
California (the "State "). However, the facts and theories it uses to describe the effects of climate
change are not new. More significantly, Mr. McClendon fails to present any new information
showing that the GHG emissions that are expected in the area where this project would be built
will either have a significant impact on GHG emissions or that it will have a more severe impact
than shown in the General Plan EIR or the Addendum. Further, neither climate change,
legislative mandates, nor CARB's "interim guidance" are new information pursuant to section
21166.
(1) Climate Change Is Not New Information
The phenomena of global climate change and its effects is not "new information."
Various entities have studied and regulated GHG emissions for a long period of time. For
example, the State has had legislation regulating GHG emissions from cars and trucks (AB 1493)
since 2002. Further, the Intergovernmental Panel on Climate Change, a creation of the World
Meteorological Organization and the United Nations Environment Programme established in
1988, has issued four assessment reports (1989, 1995, 2001, and 2007) each evaluating the state
of global research on climate change and its effects. As recently pointed out by the U.S.
Supreme Court in its decision in Massachusetts v. EPA, 549 U.S. 1438 (2007), as early as 1978
Congress enacted the National Climate Program Act, 92 Stat. 601, which required the President
to establish a program to study global climate change. These studies and legislative actions
demonstrate that the phenomenon of global climate change itself is not "new information"
because they were widely available before certification of the General Plan EIR. See No Oil,
Inc. v. City of L.A., 196 Cal. App. 3d 223, 234 n.8 (Ct. App. 1987) (study prepared before EIR
was certified but submitted to City after certification of EIR was not "new information" under .
section 21166).
Recently, the view that global climate change is not new information was endorsed. by
Sacramento Superior Court Judge Marlette in Natural Resources Defense Council v.
Reclamation Board ("NRDC'). (Sacramento Super. Ct. Case No. 06 CS 01228, Apr. 28, 2007)
(Ex. 7). In NRDC, Judge Marlette wrote that the concept of global climate change and its
potential effects on the Sacramento -San Joaquin Delta was not "new information" under section
21166 for an addendum to an EIR prepared in mid -2005. He added, "[a]s respondent and real
parties have demonstrated, such concepts were known to petitioners, the public at large, and
presumably to California public agencies. as well, prior to mid -2005, the date of the Addendum
to the SEIR." NRDC, at 9 (Apr. 30, 2007).
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Likewise, the possibility that the project might produce GHG emissions was certainly
known at the time that the City prepared its General Plan EIR.
(2) New Information Within the Meaning of Section 21166 Must Be
Specific to the Project
Mr. McClendon has not introduced new information that would trigger the requirement
for a supplemental or subsequent, or site - specific EIR. None of the material submitted to support
Mr. McClendon's assertion the project will cause a significant impact on climate change
indicates whether or not the proposed mixed -use infill development will have an increased level
of GHG emissions, in comparison to existing housing, office, commercial and other building
now used by the future residents and occupants of the North Newport Center and the buildings
this project will tear down or replace.
As the court in Fund for Environmental Defense noted, "the term `significant effect' on
the environment is defined in the Guidelines as `a substantial, or potentially substantial, adverse
change in any of the physical conditions within the area affected by the project ... Cal. Code
Regs., tit. 14, § 15382, italics added. The record does not reflect an adverse change in any of the
physical conditions within the area of the [project] site." 204 Cal. App. 3d 1538, 1552 (Ct. App.
1988) (emphasis in original). Likewise, Mr. McClendon has added nothing to the record that
"reflects an adverse change in any of the physical conditions within the area" of the project site.
In the NRDC case, the court also found that even assuming that "the scientific and
political consensus regarding the existence and potential effects of climate change has grown
significantly since" the time the EIR was certified, "the petitioners have not presented any real
new information that has emerged regarding the specific effects that are to be expected in the
area" where the project was being built. NRDC, at 9 (Apr. 30, 2007). The court found
unconvincing the petitioners' citations to "generalized information regarding the potential effects
of climate change on the State or the Delta region as a whole ... rather than projections that are
specific to the project site itself." Id.
This point is important because it places a significant burden on Mr. McClendon to point
to evidence that shows a particular project's significant impact, rather than just a generalized
effect 2 Mr. McClendon failed to meet this burden. While they offer material to support their
argument that the impact of GHG emissions on global climate change is neither uncertain or
speculative of (all of which was known in 2006), they offer no evidence to show the impact of
the project has changed, let alone whether its impact is certain and significant.
.Z Attorney General Brown's office successfully defended the Reclamation Board's action in the NRDC case, despite
the fact that it was prosecuting the County of San Bernardino for not including global climate change in its General
Plan Update EIR at the same time. A recent article quoted Deputy Attorney General Susan Durbin as agreeing that
the question of whether a subsequent or supplemental EIR is required on the issue of global climate change is
factually distinguishable from that found when initially preparing an EIR: "The [River Islands] case was factually
distinguishable from what we're doing in San Bernardino," Durbin said. "We do actually think about these things."
Dennis Pfaff, A Legal Step Back for Environmental Activist, Daily Journal, Apr. 30, 2007.
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(3) Legislative Mandates Are Not New Information
Mr. McClendon alleges vaguely that "other legislation that became effective January 1,
2007' should have triggered further review under section 21166. Presumably, the "other
legislation" to which Mr. McClendon refers is the "Global Warming Solutions Act of 2006" .
( "AB 32 "). Another piece of legislation, Senate Bill No. 97 ( "SB 97'), was passed in August,
2007. SB 97 is a legislative mandate to the Resources Agency to adopt CEQA guidelines "for
the feasible mitigation of greenhouse gas emissions or the effects of greenhouse gas emissions"
by 2010.
Although Mr. McClendon does not specify what the legislation is, it is clear that
legislative mandates that do not pertain to this particular project are not new information within
the meaning of section 21166. In May, 2007, a Napa County trial court judge "fail(ed) to see
how a mere legislative mandate for the creation of regulations could have triggered review under
section 21166." American Canyon Cmty. United far Responsible Growth v. City ofAm. Canyon
(Napa County Super. Ct., No. 26- 27462, May 22, 2007) (Ex. 8). The court in American Canyon,
which was addressing the question of whether the AB 32 was new information pursuant to
section 21166, also went on to say that "new legislation requiring creation of state regulations
certainly does not pertain to" a particular project or its effects. Here, as in American Canyon,
"the other legislation" referred to by Mr. McClendon, which is probably AB 32 or possibly SB
97, does not pertain to this particular project or its effects.
Moreover, the passage of AB 32 in 2006 is also not "new information" about global
climate change (or a significant change to the circumstances of the project). Governor
Schwarzenegger set additional, more rigorous emissions reduction targets than those found in
AB 32 through his Executive Order S -3 -05 in June 2005 (Ex. 9), over one year before AB 32
was passed ten months before the General Plan EIR was certified.
(4) CARB Has Not Released New Information
Mr. McClendon vaguely refers to "some interim guidelines" adopted by CARB "to be
used by local agencies in analyzing global warming impacts." Similar to the vague reference to
"other legislation," it is not clear what the "interim guidelines" are. For the purpose of the
discussion here, the "interim guidelines" to which Mr. McClendon refers are either the
"Proposed Early Actions to Mitigate Climate Change in California" that was released on April
20, 2007 (Ex. 10), or else the November 16, 2007, CARB staff report entitled "California 1990
Greenhouse Gas Emissions Level and 2020 Emissions Limit' (Ex. 11). Neither document is a
regulatory proposal let alone regulatory requirements for General Plans or CEQA documents.
Neither document offers guidance to the City in assessing the impact of GHG emissions from the
Project. The Early Actions discusses recommendations for three discrete actions involving: (1)
the mix of fuel sold by fuel providers in the state, (2) the use of refrigerants in automobile air
conditioning systems, and (3) statewide standards for capturing methane in landfills. The staff
report merely established the 1990 GHG emissions level and the 2020 GHG emissions limit.
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That these documents are not mandatory guidelines is abundantly clear by the fact that both
documents reiterate the fact that an overall plan will not be adopted until 2009. These
documents are merely early steps in developing the comprehensive strategy for reducing GHG
emissions to the 1990 levels, as mandated by AB 32.
An analogy can be made to the NRDC case. In NRDC, the California Attorney General,
representing the Reclamation Board, successfully argued that the possibility of global warming
was not "new information" which should have triggered a supplemental EIR under CEQA,
because the possibility of global warming was known at the time the original EIR was prepared.
Likewise, the CARB documents are not new information. They merely discuss a very limited set
of three recommendations and set the baseline GHG emissions limit for 2020 at the level of
emissions in 1990. Under CEQA Guidelines section 15162, such information would not result in
the project having any new or different environmental impact than those already studied in the
General Plan EIR prepared by the City. Further, to the extent that CARB issues its regulatory
guidelines during the development and operation of the project, the project can mitigate GHG
emissions by complying with the law.
b. There Are No Substantial Changes in the Project that Will Require
Major Modifications of the General Plan EIR .
Mr. McClendon does not, because he can not, make the argument that there are
substantial changes in this project or the circumstances of this project that will require major
modifications to the General Plan EIR. The proposed mixed -use development was contemplated
during the 2006 certification. Consequently, the project would not generate any new air quality
impacts not already identified in the General Plan EIR. The project is in conformance with the
assumptions set forth in the General Plan EIR. Therefore, implementation of the project would
not result in any new impacts or increase the severity of a previously identified significant
impact as previously analyzed in the General Plan EIR.
3. The Addendum Addresses the Project's Impact on Climate Change
Mr. McClendon is mistaken in its assertion that the "Addendum fails to analyze and
mitigate the project's global warming impacts." The Addendum addressed greenhouse gases for
the project even though there is no regulatory guidance or requirement to do so. More
significantly, the Addendum addressed the environmental impacts of the proposed development
at North Newport Center and concluded that any impact of the project on climate change is
mitigated by the design characteristics of the proposed mixed -use development, which
encourages job/housing proximity. In August 2007, the California Energy Commission issued a
white paper entitled "The Role of Land Use in Meeting California's Energy and Climate Change
Goals" (CEC- 600 - 2007 - 008 -SF, Aug. 2007) (Ex. 12), which explained that accessibility and
mixed -use projects are factors that reduce GHG emissions. Approval of this project would allow
for mixed -use design, which promotes a reduction in greenhouse gases by reducing daily trips
and improving accessibility to jobs, homes, and retail.
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The Addendum's qualitative analysis and assessment is a good faith effort to make a
meaningful attempt to further the goals of AB 32 and SB 97 in the absence of regulatory
guidance on how to address the potential impacts of GHG emissions on climate change. The
City exercised its discretion, consistent with CEQA Guidelines section 15145, and determined
that undertaking an expensive and speculative quantitative analysis for the purpose of making a
significance determination would not be cost - effective or meaningful. This decision was made
based on the following facts: (1) the lack of regulatory guidance would make any determination .
by the City overly speculative, (2) there is no new information about the project to legitimately
evaluate the project's impact on climate change, (3) certification of the General Plan EIR and
Addendum did not require any specific quantitative analysis of greenhouse gas emissions, and
(4)) the mitigation implemented pursuant to the General Plan EIR for air quality.impacts is
already the maximum technologically feasible.
Although Mr. McClendon insists, without providing authority, that the City was required
to conduct an exhaustive quantitative analysis of GHG emissions, it is not clear that this
approach would be either cost - effective or meaningful without comprehensive guidance
developed pursuant to AB 32 and SB 97. Calculating a project's baseline for GHG emissions is
complicated if not impossible. First, it may be impossible to determine how much of a project's
GHG emissions were occurring previously but are subsequently attributed to the project. For
example, a family that moves into a project area might have been commuting 100 miles a day,
and they may continue to commute 100 miles a day. However, the project would show a net
gain of 100 vehicle miles traveled. Second, due to California's focus on energy - efficiency, its
residents have lower GHG emissions than residents of other states. If out -of -state residents
move to the project area, they might actually be reducing their global impact, yet a quantitative
analysis would show a net gain. Finally, the new construction of the project may replace older,
inefficient buildings, yet the new project may not register this decrease.
If anything, this assertion by Mr. McClendon that the City's approach is not meaningful
merely highlights the need for regulatory guidance related to CEQA detailing how to address
potential impacts of GHG emission. The City recognized that the analysis of GHG emissions
within the CEQA process is speculative and that there is no substantial evidence available to
legitimately evaluate the issue in such a way as to make it cost - effective and meaningful. This is
especially true with regards to a programmatic EIR such as the General Plan EIR. As written,
AB 32 does not state that GHG emissions reductions will be required pro rata from every
segment of the economy. Rather, CARB is charged with meeting the statewide emissions
reduction limit "in a manner that minimizes costs and maximizes benefits for California's
economy, improves and modernizes California's energy infrastructure and maintains electric
system reliability, maximizes additional environmental and economic co- benefits for California,
and complements the state's efforts to improve air quality." Cal. Health & Safety Code §
38501(h).
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E. The Project Satisfies the Three Separate Requirements for Traffic Under CEQA,
the Traffic Phasing Ordinance, and the General Plan
Mr. McClendon contends that the City's traffic analysis.for the project is inadequate.
The analysis that Orosz Engineering Group, Inc. conducted on behalf of their clients (the
Greenlight group and others), however, fails to recognize that three separate requirements for
traffic apply to the project under CEQA, the City's Traffic Phasing Ordinance ( "TPO "), and the
General Plan's policy for transfer of development rights in Newport Center. Each of the three
requirements entails a distinct traffic analysis. The City has complied with each of the three
requirements, as evidence by its preparation of three technical documents containing traffic
assessments.
The following table summarizes the three separate requirements for traffic under CEQA,
the TPO, and the General Plan. The table also identifies the technical document containing the
traffic assessment for each requirement.
State or Local Law
Traffic Requirement
Technical Document
The project will not result in
new significant traffic impacts
not disclosed in the General
Plan EIR, consistent with
North Newport Center
CEQA
CEQA's program EIR
Addendum to the EIR for the
framework.
City of Newport Beach
Cal. Pub. Res. Code § 21666
General Plan 2006 Update
(Deering 2007); Cal. Code
Regs. tit. 14, §§ 15162, 15164,
15168 (2007).
The project complies with the
requirements for findings and
North Newport Center Traffic
TPO
approval set forth in the TPO.
Phasing Ordinance Traffic
Study (Austin -Foust
City of Newport Beach, Cal.,
Associates, Inc., Nov. 6, 2007)
Mun, Code ch. 15.40 (2007).
A transfer of development
Newport Center Trip Transfer
rights "will not result in any
Traffic Study
GENERAL PLAN
adverse traffic impacts."
(Austin -Foust Associates, Inc.,
General Plan, at 3 -97.
Nov. 6, 2007)
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The Project Satisfies CEQA's Requirements for Traffic Analysis
The City prepared the Addendum to.analyze whether the project's implementation of the
General Plan would create any significant impacts not already analyzed in the General Plan EIR,
which the City prepared as a program EIR consistent with CEQA Guidelines Section 15168.
The Addendum analyzed whether the project would create any significant traffic impacts not
already analysis in the General Plan EIR. The Addendum did so by referencing the North
Newport Center Traffic Phasing Ordinance Traffic Study, dated November 6, 2007, as well as
the Newport Center Trip Transfer Traffic Study, dated November 7, 2007. The City retained
Austin -Foust Associates, Inc. to conduct these independent studies of the project's effect.
Notably, these two studies included a methodology and thresholds for determining a
significant impact that was the same as that set forth in the General Plan EIR traffic analysis
methodology and thresholds. The City found based on substantial evidence that this
methodology satisfied CEQA when it certified the General Plan EIR on July 25, 2006. The
North Newport Center Traffic Phasing Ordinance Traffic Study therefore appropriately used this
methodology to determine whether the project would create any significant traffic impacts which
were not already analyzed in the General Plan EIR.
Based on the North Newport Center Traffic Phasing Ordinance Traffic Study's use of the
methodology approved of the General Plan EIR, as well as the significance standards established
in the General Plan EIR, the Addendum found that the project would not introduce any
significant traffic impacts not already contemplated in the General Plan EIR. Orosz Engineering
contends that the Addendum drew the wrong conclusion about whether the project's traffic
impacts were significant, but this contention simply boils down to a disagreement between
experts.
When faced with a disagreement between experts in an administrative mandamus case, a
court will apply the substantial evidence test. See Cal. Civ. Proc. § 1094.5 (Deering 2007).
Under that test, the court will uphold the city's factual determination if the city has supported
that determination with substantial evidence. Cal. Pub. Res. Code § 21168; see also Laurel
Heights Improvement Ass'n v. Regents of Univ. of Cal., 47 Cal. 3d 376, 409 (1988) ( "Laurel
Heights I ").
"Substantial evidence" means "enough relevant information and reasonable inferences
from this information that a fair argument can be made to support a conclusion, even though
other conclusions might also be reached." Cal. Code Regs. tit. 14, § 15384(a) (2007).
Substantial evidence includes facts, reasonable assumptions predicated on facts, and expert
opinion supported by facts. Cal. Pub. Res. Code §§ 21080(3), 21082.2(c). "[I]n applying the
substantial evidence standard, `the reviewing court must resolve reasonable doubts in favor of
the administrative finding and decision. "' Laurel Heights 1, 47 Cal. 3d at 393.
Here, Orosz Engineering has simply disagreed with Addendum's conclusions about
whether the project will introduce significant traffic impacts not already analyzed in the General
Plan EIR. The Addendum did so using the methodology and standards that the City approved
when it certified the General Plan EIR. Orosz Engineering has provided no reasons for not
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treating the Addendum's use of the previously approved methodology and standards as
substantial evidence. The Addendum's analysis therefore constitutes substantial evidence
validating the City's determination that the project will not create significant traffic impacts not
already recognized in the General Plan EIR.
The Project Satisfies the Traffic Phasing Ordinance's Requirements for
Findings and Approval
The TPO contains requirements for traffic analysis and project approval distinct from
those of CEQA or the General Plan. See City of Newport Beach, Cal., Mun. Code ch. 15.40
(2007). Notably, the TPO does not require a finding that a transfer of development rights will
not result in any adverse traffic impacts. Therefore, criticism that the North Newport Center
Traffic Phasing Ordinance Traffic Study inadequately addresses trip transfers is irrelevant.
A proper assessment of the project's compliance with the TPO involves confirming that
the North Newport Center Traffic Phasing Ordinance Traffic Study uses the methodology
provided for in Appendix A to the TPO and confirming that the project meets the TPO's
requirements for findings and approvals. The North Newport Center Traffic Phasing Ordinance
Traffic Study documents its adherence to the methodology provided for in Appendix A to the
TPO, and Orosz Engineering does not provide evidence to the contrary. And as detailed below,
the project meets the requirements for findings and approval under TPO Section
15.40.030(B)(2), which applies to "a Comprehensive Phased Land Use Development and
Circulation System Improvement Plan with construction of all phases of the project not
anticipated to be complete with sixty (60) months of project approval." Id. § 15.40.030(B)(2).
The City has provided detailed findings on how the project meets the requirements for
findings and approval under TPO Section 15.40.030(B)(2) in the City Council resolution
approving the North Newport Center Traffic Phasing Ordinance Traffic Study. Neither Mr.
McClendon nor Orosz Engineering have challenged the validity of these TPO findings, and they
have not provided reasons not to treat the North Newport Center Traffic Phasing Ordinance
Traffic Study as substantial evidence supporting those TPO findings. The City has therefore
supported its TPO findings and approval with substantial evidence, and it has validly determined
that the project complies with the TPO.
3. The Project Satisfies the General Plan's Requirement that a Transfer of
Development Rights Be Traffic Neutral
General Plan Policy LU 6.14.3 permits the transfer of development rights in Newport
Center, "subject to the approval of the City with the finding that the transfer is consistent with
the intent of the General Plan and that the transfer will not result in any adverse traffic impacts."
General Plan, at 3 -97. The City retained Austin -Foust Associates, Inc. ( "Austin- Foust ") to
conduct an analysis of whether the project's transfer of development rights would result in any
adverse traffic impacts. Austin -Foust documented its analysis in a study entitled the Newport
Center Trip Transfer Traffic Study and dated November 7, 2007.
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Austin -Foust used PM peak hour trips to measure whether the transfer would result in
any adverse traffic impacts. As Joe Foust of Austin -Foust explained at the November 29, 2007
Planning Commission hearing, the City has always used PM peak hour trips in Newport Center
to measure transfers of development rights permitted by the General Plan. In other words, the
City has always interpreted its General Plan policy for transfer of development rights in Newport
Center to require no adverse traffic impacts as measured by PM peak hour trips. And the City
has continued to interpret the policy in this way by incorporating this measurement method into
the procedures for analyzing transfers of development rights contained in the updated zoning for
North Newport Center.
Austin -Foust found that project's transfer would not result in any adverse traffic impacts
based on PM peak hour trips. Based on Austin - Foust's independent analysis, the City found the
project's transfer of development right will not result in any adverse traffic impacts.
Mr. McClendon and Orosz Engineering now challenge the City's finding based on their
objection to Austin - Foust's use of PM peak hour trips to measure traffic impacts, despite the
City's long - standing interpretation of its General Plan policy for transfer of development rights
as depending on PM peak hour trips.
Orosz Engineering's challenge to Austin - Foust's Newport Center Trip Transfer Traffic
Study again breaks down to a disagreement between experts. A court will apply the substantial
evidence test to resolve such a disagreement. See Cal. Civ. Proc. § 1094.5 (Deering 2007).
Under that test, the court will uphold the city's factual determination as long as it is supported
with substantial evidence. Cal. Pub. Res. Code § 21168; see also Laurel Heights 1, 47 Cal. 3d at
409. As noted above, "`the reviewing court must resolve reasonable doubts in favor of the
administrative finding and decision. "' Laurel Heights 1, 47 Cal. 3d at 393.
Here, Orosz Engineering has simply disagreed with Austin - Foust's analysis, which is
based on the City's long - standing interpretation of its General Plan policy for transfer of
development rights as depending on PM peak hour trips. Orosz Engineering has provided no
reasons for rejecting Austin - Foust's analysis as substantial evidence. Austin - Foust's analysis
therefore qualifies as substantial evidence properly supporting the City's determination that the
project's transfer of development rights will not result in any adverse traffic impacts.
F. The Project Is Consistent with the Land Use Element
The Project Is Compatible with Objectives, Policies, General Land Uses, and
Programs
Although Mr. McClendon focuses on the project's alleged inconsistency with the
Housing Element, The Irvine Company also wishes to address how the project is consistent with
the Land Use Element in the General Plan by being compatible with its objectives, policies,
general land uses, and programs.
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The California Subdivision Map Act provides that a finding that a subdivision is
consistent with a general plan requires only that the project be "compatible with the objectives,
policies, general land uses, and programs specified in" the general plan.. Cal. Gov't Code §
66473.5 (Deering 2007). The California Court of Appeal has interpreted this provision as
requiring that any project (including but not limited to subdivisions) be "in agreement or
harmony with the terms of the applicable plan, not in rigid conformity with every detail" of the
general plan. San Franciscans Upholding the Downtown Plan v. City of San Francisco, 102 Cal.
App. 4th 656, 678 (Ct. App. 2002) (internal quotations omitted); accord Families Unafraid to
Uphold Rural El Dorado County v. Bd. of Supervisors, 62 Cal.AppAth 1332, 1336 (Ct. App.
1998); Seguoyah Hills Homeowners Assn v. City of Oakland, 23 Cal. App. 4th 704, 718 (Ct.
App. 1993); Greenebaum v. City. of L.A., 153 Cal.App.3d 391, 406 -407 (Ct. App. 1984).
Thus, "state law does not require precise conformity of a proposed project with the land
use designation for a site, or an exact match between the project and the applicable general plan."
San Franciscans, 102 Cal. App. 4th at 678; accord Families, 62 Cal. App. 4th at 1336; Seguoyah
Hills, 23 Cal. App. 4th at 717; Greenebaum, 153 Cal. App. 3d at 406 -407.
In turn, a city's findings that a project is consistent with the general plan "can be reversed
only if it is based on evidence from which no reasonable person could have reached the same .
conclusion." ALARM, 16 Cal. App. 4th at 648; accord Endangered Habitats League, Inc. v.
County of Orange, 131 Cal. App. 4th 777, 782 (Ct. App. 2003).
2. The Project Provides for Mixed Use that Is Compatible with the Land Use
Element
In keeping with the requirements for consistency described above, the project provides
for mixed use that is "compatible with the objectives, policies, general land uses, and programs
specified in" the General Plan. Cal. Gov't Code § 66473.5.
First, the project is compatible with General Plan Policy LU 3.3's provision for
"expanded retail uses and hotel rooms and development of residential in proximity to jobs and
services, while limiting increases in office development" in Newport Center and Fashion Island.
General Plan, at 3 -3. The project also includes 430 new residential units "in proximity to jobs
and services" that are already located in Newport Center and Fashion Island and thus promotes
the policy's mixed -use goals. The project is also compatible with General Plan Policy LU 3.3
because it includes 75,000 square feet available for retail and hotel in Fashion Island. By
providing for new retail or hotel square footage, the project offers the "expanded retail uses and
hotel rooms" called for in General Plan Policy LU 3.3.
The office component of the project will not create new office campuses. Instead, the
project involves condensing and expanding existing office campuses. Adding to existing office
campuses advances the mixed -use goals in General Plan Policy LU 3.3. Limiting office uses
only to existing office campuses also advances the General Plan Policy Overview for Newport
Center and Fashion Island, which states that "[o]ffice development would be limited to the
expansion of existing rather than new buildings." Id. at 3 -97.
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The project satisfies the requirement of more specific goals and policies contained in the
General Plan as well. The project meets General Plan Goal LU 6.14's objective that Newport
Center and Fashion Island be a "successful mixed -use district that integrates an economic and
commercial. centers [sic] serving the needs of Newport Beach residents and the subregion, with
expanded opportunities for residents to live close to jobs, commerce, entertainment, and
recreation, and is supported by a pedestrian - friendly environment." Id. at 3 -97. The project
meets this objective by providing for new residential development amidst office, retail, and hotel
uses.
The project also satisfies the two General Plan land use policies specific to Newport
Center and Fashion Island. The project satisfies General Plan Policy LU 6.14.1, which calls for
providing "the opportunity for an additional anchor tenant, other retail, and/or entertainment and
supporting uses that complement, are integrated with, and enhance the economic vitality of
existing development," by allowing for development of 75,000 square feet available for retail
and hotel in Fashion Island. Id. The project also satisfies General Plan Policy LU 6.14.2, which
calls for providing "the opportunity for limited residential, hotel, and office development in
accordance with the limits specified by Tables LU 1 and LU2. (Imp 2.1)," by following the limits
in Tables LU 1 and LU2 and by restricting office uses to existing office campuses. Id
Members of the public have agreed that the project complies with the General Plan. As
stated previously, John Heffernan, a former Newport Beach mayor concluded after careful
review of the project that the "development agreement implements land uses authorized by the
new voter - approved general plan." Heffernan (Ex. 1). He also concluded that the transfer of
development rights was "authorized by our new general plan." Id.
As also stated previously, the president of the Newport Beach Chamber of Commerce, a
community activist involved in Stop Polluting Our Newport ( "SPON "), and a former Newport
Beach City Council member also involved in SPON "decided to come together" to support the
project in part because they found that it "complements civic and community uses already found
in Newport Center." Luehrs, Vandersloot & Watt (Ex. 2); Robinson (Ex. 3).
Larry Tucker, a former Newport Beach Planning Commissioner and a key member of the
advisory committee to the City for its General Plan 2006 Update, also submitted a comment
letter to the City supporting the project because it promotes the General Plan's "threshold
planning concept" that "[r]esidential units were an appropriate use in certain areas of Newport
Center." Larry Tucker, Comment Letter, at 2 (Nov. 13, 2007) (Ex. 13). He noted that the
project implements General Plan residential density established by "a multi -year planning
process that was undertaken on a City wide basis through a litany of public meetings." Id
In email correspondence with current Newport Beach Planning Commissioner Barry
Eaton, Mr. Tucker also explained that the project, by implementing residential, office, and retail
uses, advances General Plan Policy LU 2.4, which calls for accommodating "uses that maintain
or enhance Newport Beach's fiscal health and account for market demands, while maintaining
and improving the quality of life for current and future residents. General Plan, at 3 -7; see also
SD1613832.3
Honorable Mayor Selich and Members city Council •
December 18, 2007
Page 31
LATHAM &WATKI NS«P
Email from Larry Tucker to Barry Eaton (Nov. 29, 2007) (Ex. 14) ( "Tucker Email "). Tucker
also noted that General Plan Policies LU 6.14.1 and 6.14.2 allow "for the possibility of new
office uses since that is a permitted use in Newport Center" by permitting reallocation of retail
development to other uses and by providing for office development subject to certain limits.
Tucker Email (Ex. 14).
Finally, Tucker stated that allowing for the transfer of developments rights reflects the
ongoing policy of maintaining flexibility and accounting for market demand within Newport
Center. Id. Tucker found that the "continuation of that policy made sense and still does,"
particularly in the context of only "a moderate increase" in office uses in Newport Center. Id.
These public comments reveal that reasonable people have shared the City's findings that
the project is compatible with the General Plan. A City's findings that the project is consistent
with the General Plan "can be reversed only if it is based on evidence from which no reasonable
person could have reached the same conclusion." ALARM, 16 Cal. App. 4th at 648; accord
Endangered Habitats League, Inc. v. County of Orange, 131 Cal. App. 4th 777, 782 (Ct. App.
2003). The evidence listed above indicates that the project is "compatible with the objectives,
policies, general land uses, and programs specified in" the General Plan. See Cal. Gov't Code §
66473.5. The project should therefore withstand any legal challenge to the City's findings on
consistency.
G. City Charter Section 423's Public Vote Requirement Does Not Apply Because the
Project Does Not Require 'a General Plan Amendment
In November 2000, the City's electorate approved the "Greenlight" measure enacted as
City Charter Section 423. This section requires a public vote on projects that necessitate a
General Plan amendment and which would increase peak hour traffic trips, residential density, or
general development intensity above existing permitted levels in excess of specific thresholds.
City of Newport Beach, Cal., Charter § 423 (2007).
As discussed above, the project in this case is consistent with the General Plan and
therefore does not require a General Plan amendment. City Charter Section 423 therefore does
not apply, and the City Council can properly approve the project without a public vote.
III. CONCLUSION
The project proposed by The Irvine Company implements the City's General Plan by
providing for consistent mixed -use zoning in North Newport Center, in addition to a substantial
and broad array of public benefits ranging from funding for a new City Hall to significant water
quality improvements.
The City has provided the public with ample opportunity to comment on the project over
the course of more than six weeks. The City's second City Council hearing on the project,
SD\613832.3
Honorable Mayor Selich and Membem City Council •
December 18, 2007
Page 32
LATHAM &WATKINSLLP
scheduled for December 18, 2007, follows one joint study session, two Planning Commission
hearings, and a City Council public hearing.
The project serves as a benchmark for mixed use with a significant residential component
by implementing a significant portion of the General Plan's residential development allocations
for Newport Center with no reduction in the General Plan's residential density. By including
approval for 430 residential units and an affordable housing plan concurrently with approval of
zoning to conform to the General Plan, the project advances the City's housing goals and
addresses HCD's comments on the City's Housing Element and its relationship to City Charter
Section 423.
In addition, the City has confirmed in compliance with CEQA that the project introduces
no new significant environmental effects not already accounted for in the General Plan EIR,
which serves as a program EIR for the project. The City has also confirmed that the project
meets each of the three separate requirements for traffic that apply to the project under CEQA,
the TPO, and the General Plan policy on transfer of development rights.
Given the project's compliance with state and local law, significant contribution to
mixed -use development in an important commercial and community center, and considerable
public benefits, The Irvine Company respectfully asks the City Council to approve the project.
The approval would constitute a valid exercise of the City Council's authority made in the best
interests of the citizenry.
SD\613832.3
Honorable mayor Selich and Members City Council •
December 18, 2887
Page 33
LATHAM&WATKINS«P
IV. LIST OF EXHIBITS
Exhibit
Description
1.
John Heffernan, Opinion, Irvine Co. Housing, Office Deal Worthwhile, Daily
Pilot, Dec. 10, 2007, available at http: / /dailypilot.com.
2.
Richard Luehrs, Jan D. Vandersloot & Jean Watt, Commentary, City- Irvine
Co. Plan Beneficial, Daily Pilot, Nov. 30, 2007, available at
http: / /dailypilot.com.
3.
Alicia Robinson, Group Fights City Hall Move, Daily Pilot, June 27, 2007,
available at http: / /dailypilot.com.
4.
Ed Selich & Steve Rosansky, Opinion, Community Commentary: Details of
Irvine Co. Deal, Daily Pilot, Dec. 8, 2007, available at
http: / /www.dailypilot.com.
5.
Paul G. Lewis, California's Housing Element Law: The Issue of Local
Noncompliance 3 (Public Policy Inst. of Cal. 2003).
6.
Letter from Cathy Creswell to Greg Ramirez (Sept. 10, 2007).
7.
Natural Res. Defense Council v. Reclamation Bd. ( "NRDC") (Sacramento
Super. Ct. Case No, 06 CS 01228, Apr. 28, 2007).
8.
American Canyon Cmty. United for Responsible Growth v. City ofAm.
Canyon (Napa County Super. Case No. 26- 27462, May 22, 2007).
9.
Cal. Exec. Order S -3 -05 (June 2005).
10.
Cal. Air Res. Bd., Proposed Early Actions to Mitigate Climate Change in
California (Apr. 20, 2007).
11.
Cal. Air Res. Bd., California 1990 Greenhouse Gas Emissions Level and 2020
Emissions Limit (Nov. 16, 2007).
12.
Cal. Energy Comm'n, The Role of Land Use in Meeting California's Energy
and Climate Change Goals (CEC- 600 - 2007 - 008 -SF, Aug. 2007).
13.
Larry Tucker, Comment Letter (Nov. 13, 2007).
14.
Email from Larry Tucker to Barry Eaton (Nov. 29, 2007).
SD\613832.3
EXHIBIT 1
Pant Version :: •
D IVAS
• Pilotwft
Pub b Meoety, December 10. 20F 1= PM Par
Opinion
MAILBAG:
Page l of 2
Irvine Co. housing, office deal worthwhile
In october and November I outlined my concerns about a pending development agreement
between the Wine Co. and the. city regarding future development in Newport Center.
The proposal is for the city to grant to the Irvine Co. entitlement for 430 new housing units
and almost 280,000 square feet of new office development (mostly through the transfer of
development rights authorized by our now general Man}.
In exchange.-the Irvine Co. would pay the city almost $43 million. The development
agreement implements land uses authorized by the new voter- approved general plan.
I reviewed the pending development agreement in detail, spoken with representatives of the
Irvine Co. and also with Mayor Steve R=Wsky and Mayor Pro Tern Ed Selich, who were
the chief negotiators for the city, about a number of my concerns.
I considered the development agreement In terms of what appears to be a loaning 1=1 real
estate sector recession and Crow much near-tarn money will be paid to the city under the
agreement Given the market for new housing and receding local office rental market, I
Wove Rosansky and Sekh have negotiated an advantageous agreement for the city.
I am also mindful of the long -term outlook and first -class development reputation of the Irvine
Co. In our city, which is evident by their quality work In Newport Center and Newport Coast.
My comdusion Is that the terms of the development agreement are close to or at current
market conditions, the payment schedule Is beneficial, therefore the City Council should
approve the agreement at its meeting Dec. 11.
I am confident the Irvine Co. will use these now development rights to metre well conceived
Improvements to Newport Center. i believe their efforts will ensure that the center continues
to attract and remain a site for economic growth and vlft In the future.
And regardless of what happens with the BIN FI&Ar Initiative in February, a future city half in
Newport Center can now become a reality, although I still strongly favor the Central Library
site.
Expansion affects corridor cities
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EXHIBIT 2
0 0
Daily�Pilot
City - Irvine Co. Plan Beneficial
Commentary by Richard Luehrs„ Jan D. Vandersloot and Jean Watt
Daily Pilot
November 30, 2007
It may surprise you to see our names on the same opinion piece.
In fact, over the years, although we have held a healthy respect for one another, we have rarely seen
eyo-to -eye on key issues.
Until now.
The recently proposed Newport Center mixed use plan and development agreement presented by
The Irvine Co. to the community, City Council and Planning Commission achieves many key goals
that will benefit out entire city:
• Continues the renaissance of Newport Center and provides the opportunities it needs to
remain the economic engine ofNewport Beach-,
• Provides $27 million of non- taxpayer money to build a new City Sall, regardless of final
location, including keeping it at its current location on the Peninsula
• Provides significant finding for the rebuilding of the Oasis Senior Center.
• Complements civic and community uses already found in Newport Center.
• Is the nuns[ environmentally - friendly site compared to the proposed location behind the
central library.
It will be up to our elected officials and the community to decide which makes the best sense for a
city hall, and their decision should be guided by the facts about which site is the most beneficial to
the city.
We decided to come together to support the Newport Center mixed -use plan and development
agreement because we believe that this proposal provides the unique and right opporturoity for the
futu m of our community — and more specifically, Newport Center — while providing significant
finding for important community infiastrucdue, including a city hall in which we can all take great
pride.
RICHARD LUEHIRS is pnWderaand CEO. of Me Newport Reach Chamber of Commerce. JAN
D. VANDERSLOOT is a community ac&vht JE"WATT is a fermerNewpart Bead* Cut}*
Coundl member.
EXHIBIT 3
Pubrsbed Wednesday. Juno 27, 200711:45 PM PDT
Politics .
Group fights city hall move
Debate over the use of a 12.8 -acre parcel heats up with slogans coming from Stop
Polluting Our Newport and Bill Ficker.
By Alicia Robinson .
Three members of a prominent Newport Beach environmental group will head the opposition
to a ballot measure that would build a new city hall next to the central library.
Allan Beek, Jan Vandersloot and Jean Watt of Stop Polluting Our Newport are organizing
the fight against the city hall measure. N would change the city charter to say city hall — now
on the Balboa Peninsula — will be bull on a 12.8 -acre, city -owned parcel on Avocado
Avenue that has been promised as a park since 1992.
So far the battle is one of slogans. Bill Ficker, leading proponent of the city hall measure, is
peddling the. idea of "city hall in the park," while opponents hope to convince voters that
"parks are priceless."
Stop Polluting Our Newport "has been on record in favor of having the park and not a city
hall on that site for a year or more," Beek said Wednesday.
He sees lots of holes in Ficker's plan. For instance, he said, "They're choosing to .build on
one of the worst possible sites around. There are massive grading requirements."
City leaders already are looking into property just a block away where an Orange County
Transportation Authority facility is, and Beek argues Chars a better alternative.
He and his backers are drafting a letter they'll send, first to members of Stop Polluting Our
Newport and the slow- growth group Greenlight. A second letter will urge the community at
large not to sign city hall ballot petitions.
Ficker said he's not surprised to have opponents, and he thinks their arguments are largely
without merit.
For example, people have piled the park property "unbuildable" because of drainage
problems that also afflict the library. But Ficker, an architect, said he, has inspected the
library basement and not seen signs of flooding, and his studies of the park land show "it's
an excellent site on which to build."
Some are not choosing sides in the battle. Though City Council members Lesle Daigle and
Don Webb and Mayor Steve Rosansky voted to consider the park land for city hall, only
Webb has signed the ballot petition, and none of the three plan to campaign for it.
Greenlight will not get formally involved either, said group spokesman Phil Arst, though
individual members may work against the ballot measure.
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0
•
Page 2 of 2
It is the second time in three years that Newport Beach voters face a ballot measure pitting a
park against some other hand use. Leaders on both sides seem a little disturbed that things
have come to this.
"I guess what bothers me is why people would be to cynical," Ficker said. "I don't know why of all people (Stop Polluting Our Newport] would attack the democratic process"
For Beek, the debate is extremely close to home.
"My own brother and I are on opposite sides, and I don't quite understand where hey coming
from," he said.
• ALICIA ROBINSON, may be reached at (714) 966 -4626 or at
alicia.robinsol7@latimes.com.
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EXHIBIT 4
:: Print Version::
Page 1 oft
P,jAd.d SA fly. eemmbw 8.2W 10M PM PST
OpMlon
COMMUNITY COMMENTARY:
Details of Irvine Co. deal
By Ed Selich and Steve Rosansky
Last November, after years of public discussion, the voters of this city approved a new
General Plan, which allows 450 residential wits to be developed in Newport Center.
These units were not requested by The Irvine Co. or any other property Owner but were
recommended by the citta ens' advisory cDmm es, GPAC, to allow Newport Center to have
more diverse uses and reduce traffic_ The proposal for residential development in Newport
Center will implement the wishes of the electorate who voted for such uses.
The council also included In the new General Wan a provision that a property owner who
develops residential units in Newport Center must sign a development agreement A
development agreement is a negotiated agreement whereby the city receives an Increased
level of public benefit in retum fen giving a developer certain long -term assurances that the
developer may construct Its project
-.The CIty.Council Development Agreement Negotiating Committee, assistant city manager,
city attorney and outside [so counsel for the city (who spe"fzes in drafting development
agreements) have negotiated a draft development agreement with The Irvine Co. Currently,
the development agreement provides the following benefits to the city.
A four -year option for the city to acquire an approximately 53,000,square-foot site for a city
W building in the 500 block for $145 a square foot, based upon an appraisal commissioned
by the may,
A four -year option to acquire the right to use between 300 to 375 parking spaces in a
parking structure to be constructed in the 500 block on a pro rata cost basis for the number
of spaces acquired;
Payment of $27.09 million to the city with $13.045 million due at the first building permit,
the balance spread over the remaining residential building permits. This money can be used
for a city hall wherever it is constructed or any other municipal purpose.
Payment to the city of $112 million in park fees. Up to $5.6 million bD be paid at the award
of a contract for construction of the new Oasis Senior Center on a matching basis to what
the corrununtty raises for Oasis, with the unmatched balance, ti any. available to the city for
any Park purpose:
$15 million in road Improvements in Newport Center above those required by traffic impact
fees;
Dedication W the city of the 3-scre vacant parcel north of San AfVW at Avocado to the city
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if a new city hen is constructed in Newport Center,
Payment of tragic impact fees under a new higher fee schedule;
Provision of affordable housing units to meet state low requirements.
No new entitlement other than what was approved in our recent General Plan or what e>osts
on the ground today is proposed. A team of traffic engineers has carefully reviewed the plan
for potential traffic generation and has found Bee proposed development adds no net new
traffic over that allowed by the General Plan.
The draft development agreement win be put into final form only after the important step of
receiving public Input. That input may well result in revisions to the agreement. The draft
development agreement has already been publicly discussed at a john meeting of the
Planning Commission and the City Council and at two meetings of the Planning
Commission. It has now been referred to the City Council for at least two more public
meetings. At each meeting; the pubes has been and will be encouraged to comment on any
aspect of the development agreement The draft development agreement and staff report
are available on the ciVs website at www.city.neewport heach.ca.us.
There has been some criticism that this development agreement does not bring enough
public benefit to our city. That s the standard which the City Council will use to determine If
this development agreement is.worlhy of our approval. As far as we have been able to
determine, no city has negotiated a development agreement with this level of public benefit
If anyone reading this knows of one, please make the City Council aware of IL
Finally, it is important to note that this agreement does not bind the City to the 500 block for a
City hell. It merely gives the city the option to go there if the City Hati in the Pack initiative
does not pass.
ED SELICH is a Newport Beach city councilman. STEVE ROSANSKY is the
mayor of Newport Beach.
[ CLOSE WINDOW
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EXHIBIT 5
• •
California's
Housing Element
Law: The Issue
of Local
Noncompliance
. .
Paul G. Lewis
2003
PUBLIC POLICY INSTITUTE OF CALIFORNIA
0
Library of Congress Cataloging -in- Publication Dana
Lewis, Paul George, 1966 -
Californias housing element law: the issue of local
noncompliance 7 Paul G. Lewis.
p, cm.
Includes bibliographical references and index.
ISBN: 1- 58213 -069 -8
1. Discrimination in housing — California. 2. Housing policy -
California.d. Public Policy Institute of California. II. Title.
HD7288.76.U52C25 2003
363.5'09794 —dc21 2002154992
Copyright ® 2003 by Public Policy Institute of California
Ali rights reserved
San Fmndsco, CA
Short sections of text, not to exceed three paragraphs, may be quoted
without written permission provided that full attribution is given to
the source and the above copyright notice is included.
PPIC does not take or support positions on any ballot measure or
state and federal legislation nor does it endorse or support any
political patties or candidates for public office.
Research publications reflect the views of the authors and do not
necessarily reflect the views of the staff, officers, or Board of
Directors of the Public Policy institute.of California.
0
Foreword
It is no secret that affordable housing is scarce in California. Even
with record low mortgage rates and plenty of demand, the lack of
conveniently located, relatively low -cost housing has frustrated planners
and consumers alike. What is less well known is that many local
governments have been out of compliance with California's housing
element law, which was designed to help local officials plan for adequate
housing in their communities. In his latest look at local governance in
California, Paul Lewis addresses the question of why so many cities and
counties have been unable or unwilling to meet the state requirements
for housing.
Lewis analyzes a long list of reasons why a city would be out of
compliance with -the law, including shortages of available land, explicit
antigrowth policies, and an aversion to affordable housing among
wealthy communities. His findings do not support the view that only
the richest communities were out of compliance; in fact, smaller cities
with older housing and those with strict growth controls were more likely
to be noncompliant. He then takes a closer look at communities in the
metropolitan areas of San Diego, Los Angeles, and the San Francisco Bay
Area to identify the relationship between noncompliance and housing
production. His results will come as a surprise to some. During the
1990s, noncompliant communities were just as likely to expand their
housing stock as communities that complied with the law. Furthermore,
when other factors were held constant, noncompliance was not a
significant predictor of the rare of multifamily development.
After reviewing the policies of others states with comparable
approaches, Lewis identifies three basic problems with California's
housing element law' First, it often goes against the grain of local politics
by asking cities to plan for the needs of the wider region, not just those of
current city residents. Second, it may represent a mismatch of goals and
policy tools. Specifically, it attempts to tackle the problems of overall
i •
housing underproduction with a process - oriented approach developed to
prod cities and counties into planning for their share of affordable units.
Third, the statute itself is I unwieldy, embraces multiple objectives, and is
difficult for nonexperts to understand.
Lewis concludes that the time is ripe for policymakers and affected
interest groups to seek a more workable, transparent, and straightforward
approach to housing. These policymakers may need to resolve whether
their major goal is a sheer increase in residential construction or an
equitable distribution of affordable housing. Lewis warns that using a
fair -share planning approach as a tool to encourage overall housing
production places an unrealistic Burden on a fairly fragile policy.
David W. Lyon
President and CEO
.Public Policy Institute of California
0
Summary
California is generally perceived as producing less housing than
would be expected or desired judging by its population and job gains.
The statewide plan developed by the Department of Housing and
Community Development (HCD) predicts that a continuation of
current.trends will lead to underproduction of needed housing by
approximately 60 percent — likely leading in turn to a further upward
spiral of home prices and rents as well as lower homeownership rates.
This shortfall particularly hurts low- income families, which have more
difficulty in paying the price or rent premium that results from
undersupply.
Some observers argue that local governments' lack of enthusiasm for
new housing in their communities is a large source of this problem. This
report investigates California's housing element law, the major tool the
state government uses to ensure that city and county land -use regulators
are planning appropriately for new housing development. Enacted in
original form in 1969, the housing element law requires that all cities and
counties in California engage in detailed planning for their residential
needs by including housing as an element of their comprehensive plans.
The housing element process is intended to focus the attention of city
policymakers on identifying land sites for housing, and on policy actions
that would make it easier or less expensive to provide additional housing
units.
The motivation.for this study is the high degree of local
noncompliance with the law. I begin by examining which types of city
governments tend to have their housing elements deemed 'out of
compliance" by HCD staff. A second major goal is to determine
whether such noncompliance can be linked statistically to a lower
subsequent production of new housing. The report also reviews
California's implementation of housing element law and compares it to
the experiences of other states.
How the Housing Element Process Works
The housing element is the only part of local general plans that is
subject to substantial oversight by the state. The stare's interest in local
housing elements has been justified by the fact that housing is enshrined
in stare law as a matter of "vital statewide importance." Nevertheless,
housing elements in and of themselves rarely cause new housingto be
built; in a market economy, private developers (or nonprofit builders of
affordable housing) construct nearly all new housing units.
The housing element requirement is often called a "fair -share"
housing law, with the term generally referring to a regional process by
which each local community works to accommodate a fair proportion of
the region's housing need. Regional councils of governments (which are.
planning councils representing the cities and counties in a given
metropolitan area) work from state estimates of regional housing need
and assign a housing unit goal, or allocation, to each city and .
unincorporated county area in their region. Cities and counties are then
expected to update their housing elements to plan for quantified
objectives for housing units over the next five years.
Unlike in some states with fair -share approaches, in California
housing production itself has received as much emphasis as the
geographic distribution of housing for lower -income families. This
state's broader notion of fair share probably has resulted from its long -
standing problem of housing affordability and underproduction, which
limits the opportunities of not only the poor but also the middle class.
The housing element statute requires that local planners address and
reduce governmental constraints on the development of housing for all
income levels. Such constraints may include local growth controls, strict
building codes, developer fees, and permit procedures.
California law requires that local governments revise their housing
elements periodically. In the current round of revisions, San Diego (in
1999) was the first region where localities were required to update their
plans. In 2000 and 2001, cities and counties in the Southern California
region and the San Francisco Bay Area undertook these updates, with the
• 0
requirement extending to the Bakersfield, Fresno, and Sacramento areas
in mid -2002 and to the rest of the state's regions by the end of 2003.1
Once a local update has been drafted, HCD reviews it to gauge
whether the plan can enable the targeted number of units — including
specific amounts of housing for households of very low, low, moderate,
and "above moderate" incomes. If so, HCD terrifies the housing
element. If not, the jurisdiction may change its plan to incorporate
HM's suggestions. If the element is adopted without satisfying
HCD—or fails to be updated at all —the city or county is regarded as
noncompliant. That judgment limits its eligibility for certain state and
federal funds for affordable housing and renders it more vulnerable to
lawsuits that can halt development in the community. There have been
frequent conflicts between state and local policymakers over housing
element compliance.
Testing Competing Explanations for Local
Noncompliance
One of the most contentious aspects of the housing element
requirement is the fact that nearly four cities in ten and a quarter of
counties are out of compliance with the law.2 Large majorities of
jurisdictions in the state.have been noncompliant at some point.
Explanations of this fact differ dramatically. Some communities have
argued that state or regional projections fail to reflect powerful local
realities, such as a lack of vacant land, which can make it difficult to
identify a sufficient physical capacity to accommodate projected housing
needs. Other observers argue that local noncompliance more frequently
reflects an aversion to new housing—particularly affordable units —on
the part of upper - income communities. Overt antigrowth policies or
. 1 Here, Southern California includes cities in the counties of Imperial, Los Angeles,
Orange, Riverside, San Bernardino, and Ventura; the Bay Area includes titles in
Alameda, Contra Costa, Main, Napa, San Francisco, San Mateo, Santa Clara, Solano,
and Sonoma Counties.
2This tally of noncompliant jurisdictions includes those whose housing element is
overdue, as well as those found noncompliant after HCD review. In both cases: the
housing element is legally noncompliant.
A
0 •
regulatory postures on the part of local governments— sometimes
imposed on local governments by their voters --are also seen as a culprit.
Still another possibility is that many jurisdictions fail to meet the housing
element requirement because they lack the requisite planning capacity or
experience.
State officials periodically seek ways to; increase compliance with
housing element law by penalizing noncompliant local governments.
Housing advocates have long argued that sanctions should be stronger
and that housing law needs more emphasis on results and less on process.
Senate Bill 910, which passed the California Senate in 2001 but later
died in the assembly, would have required that the state controller fine
noncompliant cities. By contrast, local officials seek to protect local
autonomy over land use —long one of the major pillars of home rule —.
and complain of distant state authorities who fail to understand local
conditions.
This study examines the distinctions between cities that have been
able to attain housing element compliance from those that have not.
Measures of city characteristics are drawn primarily from the U.S.
Census, and measures of local land -use policies and growth controls are
drawn from a PPIC mail survey of local planners in the late 1990s.. A
simple comparison of cities in the regions that have recently been
reviewed by HCD indicates that noncompliant communities are, on
average, smaller and have older housing. In the rest of the state, where
cities have had about a decade to reach compliance since their last
housing element revisions were due, few cities were noncompliant The
simple comparison indicates that these few laggard communities tend to
be wealthier and less ethnically diverse than compliant cities.
. .The results of a more sophisticated statistical analysis reveal the
determinants of no in a more systematic way. This analysis
involved cities in the Southern California region, San Diego County, the
San Francisco Bay Area, and the 18 -county Central Valley. Evidence was
strong that cities' residential growth policies held a particularly important
role for the HCD reviews. For example, cities whose planning directors
report that the review process for new development proposals has been
getting longer experience more trouble in attaining compliance. Each
viii
0 0
restrictive growth policy that has been adopted by the city approximately
doubles the odds that it will be found noncompliant.
An older housing stock is also associated with a greater likelihood of
noncompliance. Cities with older housing maybe mote settled and have
a mote established community character, they are also likely to contain
less vacant land. Cities with smaller populations are also mote likely to
be noncompliant, all else equal. Governments of larger cities may have a
greater capacity to undertake the broad range of planning efforts needed
to reach compliance and may also be mote insulated from the political
pressure of homeowners.
An additional finding is that the length of time that has elapsed since
the deadline for submitting an updated housing element is one of the
most statistically significant predictors of compliance. Specifically, the
results indicate that each month that has passed since the region's
deadline tenders a city approximately 5 percent mote likely to teach
compliance. Even controlling for all these factors, cities in the Bay Area,
Central Valley, and Inland Empire were more likely to be noncompliant
than other cities.
It is also interesting to note that the compliance status of individual
communities tends to persist over time. Although many cities were able
to attain compliance as the 1990s wore on, it remained the case that
noncompliance in 1991, after the past round of revisions in the coastal
metropolitan areas, was a fairly good predictor of noncompliance in
2002.
Assessing the Relationship Between Compliance and
Housing Production
Defenders of the housing element requitement tend to argue that
local governments that comply with the law, by demonstrating adequate
plans, enable mote housing to be built. Using data from the 1990s, I
examine whether a city's compliance status in 1991 helps to predict the
petcentage increase in the city's housing stock by 2000. The analysis
again controls for a variety of other city characteristics that might be
expected to influence the level and type of housing growth. Because of
•
data limitations, this analysis focuses only on cities in the Southern
California, San Francisco Bay Area, and San Diego tegions.
Using Census data on the number of housing units in each city, I
find no detectable relationship between housing element compliance and
the percentage increase in housing across these communities during the
1990s. Thus, for all the potential merits and benefits of housing element
compliance, one must look to other factors to explain why some cities
experience rapid housing development and other cities experience little.
The analysis suggests that a city's demographic characteristics, its
position in the urban hierarchy, and its physical capacity to
accommodate new buildings are better predictors of housing growth.
. Although the housing element statute, as a fair -share approach, is
especially concerned with increasing the production of affordable
housing, we unfortunately lack any comparable infbtmation fbt all cities
about the production of affordable units. However, data from the
Construction Industry Research Board do allow an analysis of
multifamily housing production. Multifamily housing includes
apartments and condominiums, the types of housing gmetally most
relevant for those at the lower to middle levels of the income
distribution, particularly in the coastal metropolitan areas where housing
is expensive. Multifamily units teptesented only about one - quattet of
the new units produced in the 1990s.
The results of this analysis once again show that housing element
noncompliance as of 1991 is not a significant predictor of the rate of
multifamily development when other relevant factors are held constant.
Rather, cities that were job centers and that had fewet senior citizens as,
of 1990 tended to experience faster rates of multifamily housing
development.
Finally, the report investigates whether housing element compliance
affected the mix of housing developed in the 1990s--multifamily versus
single - family— despite its lack of effects on the rate of increase. I
examine the relationship between compliance and the percentage share of
new housing units that were multifamily units. Here there is evidence of a
significant association of compliance with the outcome in question.
Cities with noncompliant housing elements developed new housing that
was weighted mote toward single - family units. Holding constant for
• 1 11 •
other city and county characteristics, a noncompliant housing element
was linked to an 8 percentage point lower proportion of multifamily
housing among the newly built units. The results imply that cities with
compliant housing elements are willing to substitute multifamily (more
affordable) units for a share of single- family units. Nevertheless, it is
striking that one can detect no measurable relationship between
compliance and overall housing production.
Rethinking the Housing Element Approach
Discussions of problems with the current housing - element law
among California policymakers and housing advocates have led to a
number of reform proposals in recent years.. However, most of these
proposals take the housing element approach —a state review of local,
plans for future housing needs —more or less as a given. A fundamental
question may be whether the various goals and values that California
polirymakers hold dear— increased housing production, an equitable
distribution of housing responsibility across communities, special
attention to the housing needs of low- income groups, local autonomy
and home rule, environmental protection, and more --can all be
accommodated within this area of law, or whether there are tensions
among them. A secondary question is whether the current approach is
the most effective use of resources to further these goals.
Enticing communities to accommodate housing would not be such
an uphill battle if they perceived that doing so would be in their financial
self-interest. Thus, creating a component of the state fiscal system that
rewards local governments for'the addition of housing units, particularly
affordable units, may result in less conflict and more cooperation. The
Jobs /Housing Balance Incentive Program, passed in 2000, has elements
of such a "rewards for performance" approach. Revenue.sources that are
distributed to localities on a population basis, such as the Vehicle License
Fee subvention, also create indirect incentives for cities and counties to
accommodate housing.
Other states, including some with equally strong traditions of home
rule as California, have also wrestled with issues of inadequate housing
production, mandated fair shares for jurisdictions, and state oversight-of
local planning. In New jersey, for instance, production of affordable
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housing rests mainly with the profit motives of private developers; they
can propose a 'builder's remedy" by including a share of affordable units
in otherwise market -rare projects.that would normally exceed local
zoning limitations: The quasijudicial state agency overseeing local
housing plans also allows communities to transfer to other jurisdictions
up to half of the affordable units they are expected to produce, in
exchange for a payment to the "receiving" municipality.
In Massachusetts, developers of affordable projects have access to a
Comprehensive Permit Law that enables them to proceed through a
streamlined local review process, avoiding many of the intermediate
reviews that other proposed developments must go through. Builders
whose projects are denied by this local process have the option of
appealing to a statewide board, the Housing Appeals Committee, which
can overturn the local decision and order the project to be permitted.
In Oregon, the state's Land Conservation and Development
Commission imposes minimum zoning densities on residential land for
cities and counties in the Portland metropolitan area: The localities in
this region are also required to write plans so as to allow at least half of
future residential units to be in multifamily projects.
As in these other states, California's housing element requirement
has often gone against the grain of local policymaking because it asks
cities to plan for the needs of the wider region, not just the needs of
.current city residents. Indeed, the philosophy behind fair -share housing
policy is that the so- called police power of local governments to regulate
land use should be directed toward the general welfare of the region, not
just the general welfare of the specific locality.
Those involved in California's debate over housing policy often note
how long and detailed the housing element statute is. Highly detailed
statutes are often evidence of widespread disagreement on a given policy,
as waves of `reform" occur in which opposing interests seek to have their
specific concerns addressed and preserved in law. In the case of the
housing element statute, the result is an unwieldy law that is often
difficult for outside observers to comprehend in its entirety or details.
In the 33 years since the housing element statute was enacted, the
search for an adequate supply of housing in California has only become
more elusive. It may be a ripe occasion for policymakers and affected
xii
0
0
interests to seek an approach to housing policy that is more workable,
transparent, and straightforward, with measurable barometers of.
substantive local success or failure.- In so doing, policymakers will need
to resolve whether the major goal of such a law is a sheer increase in
residential construction or an equitable distribution of affordable
housing. Using a fair -share planning approach as a tool to encourage
overall housing production may place an unrealistic burden on a
relatively ftagile policy.
xiu
Contents
Foreword...... .................. ..............
m
Summary...... ...............................
v
Figures....... .. ...............................
xix
Boxes........ ...............................
xxi
Tables ......... ......... ......................
xxm
Acknowledgments . ...............................
xxv
1. INTRODUCTION ...........................
I
Controversies over Local Governmenr Noncompliance with
rhe Law . ...............................
2
Recenr Legislarive Proposals and Reform Efforts .........
7
Plan of the Report ............................
10
2. WHAT IS THE HOUSING ELEMENT LAW AND
HOW HAS IT BEEN IMPLEMENTED? ............
11
Introducrion: A Fair -Share Housing Law .............
11
Origins: Housing as a New Componenr of Local Planning ..
13
The 1970s: Elaboration of the Housing Elemenr
Requiremenr ............................
14
The 1980s and 1990s: The Presenr Sysrem Takes Shape ....
16
Regional Allocation Process ......................
16
Update Process for Local Housing Elements ..........
18
Growing Contentiousness over Housing Elemenr
Requirements and Compliance .................
21
Concerns over Lirigarion .......................
22
Are Needs Met? ............................
24
Concerns over Projections and Regional Allocarions ...
24
The Currenr Revision Cycle: The Controversy
Cont inues ..............................
27'
The Defense of Housing Elemenr Law ...............
30
Senare Bill 910 (2001 -02) .......................
132
Conclusion ... ...............................
34
W
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3. WHY DO SO MANY COMMUNITIES HAVE
NONCOMPLIANT HOUSING ELEMENTS? ........
35
Why Cities? . ...............................
35
Four Sets of Factors Potentially Affecting Compliance .....
36
Community Social Status and Exclusion .............
37
Local Land -Use Characteristics and Vacant Land .......
38
The Resources of the Local Government .............
40
Local Politics and Residential Growth Policies .........
41
Timetable for Housing Element Updates Influences
Compliance Status .........................
43
Comparing Compliant and Noncompliant Cities: A
75
Preliminary Profile ........................
44
Probing Further: A Statistical Model of Noncompliance ....
48
Key Findings of the Multivariate Analysis .............
51
Some Caveats ...............................
53
Conclusion ... ...............................
55
4. DOES HOUSING ELEMENT COMPLIANCE MEAN
THAT MORE HOUSING IS PRODUCED? .......... 57
Housing Element Compliance, Circa 1991 ............ 57
Measuring Housing Growth Rates Using Census Data ..... 59
Controlling for Other Factors ..................... 60
Results of the Analysis of Total Housing Unit Growth ..... 64
Analysis of Multifamily Development Using Construction
Industry Data ............................ 65
The Mix of New Housing Development .............. 67
Reconciling These Findings ...................... 68
Conclusion .. ............................... 68
5. CAN STATES ENSURE ADEQUATE LOCAL
PROVISION FOR HOUSING DEVELOPMENT? ......
71
Alternative Approaches within the Context of the Current
Housing Element Law ...... " ................
71
More Penalties and Prescriptions for Local Governments ..
71
Self- Certification Based on Performance .............
72
Subregional Allocations and Joint Housing Elements ....
73
Encouraging Transfers of Housing Allocations among
Jurisdictions . .....:.......................
74
Another Approach: Rewards for Performance .........
75
Xvi
Relevant Experiences from Other States 76
New Jersey 76
Massachusetts ...:....................... 79
The Portland Region ......................... 82
Conclusion .. ............................... 84
6. CONCLUSION ............................. 87
Goals in Conflict ............................. 87
Equitable Distribution or Sheer Production? .......... 88
A Mandate in a Vacuum? ...................... 89
Devil in the Details ............................ 89
Appendix
A. Multivariate Analyses. of Housing Element Noncompliance .. 91
B. Multivariate Analyses of the Rate and Mix of New Housing
Production in the 1990s ......................... 95
Bibliography ... ............................... 101
About the Author 107
Related PPIC Publications .......................... 109.
nii
Figures
1. 1. Cities' Housing Element Compliance Status, as of
September 25, 2002 ........................ 4
1.2. Counties' Housing Element Compliance Status, as of
September 25, 2002 ........................ 5
4.1. Cities' Housing Element Compliance Status, as of
December 31, 1991 58
xix
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0 0
Boxes
1. 1. State Law: Does Housing Production Conflict with
Other Goals? ............................. 9
2.1. A Creative Way to Help Meet Housing Goals ........ 30
2.2. A Housing Element Challenge in Folsom ........... 31
2.3. Other Important Provisions of SB 910, As Amended ... 34
Ell
• •
Tables
1. 1.
Schedule for Third Revision of Local Housing
Elements . ...............................
6
3.1.
Comparison of Compliant and Noncompliant Cities in
the San Diego, Southern California, San Francisco Bay
Area, Fresno, Kem, and Sacramento Regions ..:.....
45
3.2.
Comparison of Compliant and Noncompliant Cities in
the Remainder of the State ....................
47.
3.3.
Variables Used to Predict Housing Element
Noncompliance .............................
50
3.4.
City Characteristics That Are Statistically Associated
with Noncompliance ........................
52
4.1.
Percentage Growth Rates for Housing in Cities in the
San Diego, Southern California, and San Francisco Bay
Area Regions, 1990 -2000 .....................
59
4.2.
Comparison of Housing Development in Compliant and
Noncompliant Cities in the San Diego, Southern
California, and San Francisco Bay Area Regions .......
60
A.1.
.Logistic Models of Housing Element Noncompliance as
of September 2002 .........................
92
A.2.
Summary Statistic for Continuous Variables in the
Preceding Models ..........................
93
B.1.
Regression Model of Housing Unit Growth in the
1990s; with County Fixed Effects ................
96
B.2.
Regression Model of Multifamily Development Growth
in the 1990s, with County Fixed Effects ...........
97
B.3.
Regression Model of Share of Housing Development
That Is Multifamily, with County Fixed Effects ........
98
B.4:
Summary Statistics for Continuous Variables in the
Preceding Models ............................
99
IR
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Acknowledgments
I thank Professors Scott Bollens of UC Irvine and Dowell Myers of
USC, as well as Tracy Gordon, Hans Johnson, Fred Silva, and Mark
Baldassare of PPIC, for reading a drafr of this report and offering helpful
suggestions. At the Department of Housing and Community
Development, Deputy Director Cathy Creswell and her staff helped me
understand the housing element process and obtain information. At an
early stage of the project, Alex Amoroso (Association of Bay Area
Governments), Mark Stivers (Senate Committee on Housing and
Community Development), Peter Detwiler (Senate Local Government
Committee), and Dan Flynn (California Assembly) also provided useful
perspectives on the issues involved. Some of the data and information
necessary for the analysts in this report were collected or prepared by
Elisa Barbour, Khanh D. Bui, Rachel Flood, Hugh Louch, and Max
Neiman. Peter Richardson and Joyce Peterson improved the prose and
presentation. Although all of these people made important
contributions, the author is solely responsible for any errors of fact or
interpretation.
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1. Introduction
California is generally perceived as producing less housing than
would be expected or desired judging by its population and job gains.
The state's most recent statewide housing plan, fot example, finds that
developers will need to produce an avetage of 220,000 housing units pet,
year through 2020 to meet projected demand. Achieving such
production levels will be a challenge, the plan notes, since even in tecent
boom years only 150,000 or so new unirs received building petmim
Since 1970, Califotnia has never produced 220,000 housing units for
mote than two consecutive years (Myers, 2001, p. 388). The state plan,
published by the Department of Housing and Community Development
(HCD), predicts that a continuation of current trends will lead to
underproduction of needed housing by approximately 60 petcent— likely
leading in turn to increasing home prices and tents as well as lower
homeownetship rates (HCD, 2000, p. 3; Myers and Park, 2002). This
lack of housing supply particulatly hurts the poor, who have difficulty in
paying the price or tent premium that results from undersupply. Two of
thtee low- income tentet households in California pay mote than half
their income to put a toof over their heads (Little Hoover Commission,
2002, p. i):
Some observers argue that local governments' lack of enthusiasm fot
new housing in their communities is a large source of this problem,
although evidence is far from definitive on.this point (see Lewis and
Neiman, 2002). This report examines California's housing element law,
the major means by which the state government tries to ensure that local
land -use regulators are dealing with unmet housing needs and planning
appropriately for new housing development. The state requites that each
city and county write (and periodically revise) a general plan to guide its
future growth. The housing element is one of the seven requited
elements of the general plan; its purposes are to identify current and
future local housing needs of all income groups and.to ensure the
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preparation of a detailed schedule, consistent with broader community
planning goals, for meeting such needs. The housing element is the only
part of local general plans that is subject to substantial oversight by the
state. The law provides that housing elements are to be revised every five
years, although the legislature allowed localities to postpone their updates
throughout the 1990s because of budgetary shortfalls.
HCD, relying on Finance Department population projections,
assigns a target number or goal for additional units to each region of the
state. In a process called the Regional Housing Needs Assessment
(RHNA), the council of governments (a planning body representing the
cities and counties in a given metropolitan area) must allocate this total
number of housing units among the cities and unincorporated county
areas in its region. HCD then reviews whether city and county housing
plans conform with statutory requitements —in other words, whether the
local housing elements seem likely to enable each community to meet its
goal for new units.
This report focuses on several key issues regarding this process of
housing element revision and review. Among the topics analyzed are: .
• California's implementation of the housing element law and
how it compares with other states' approaches to local housing
planning,
• Which types of municipal governments fail to comply with the
law, and
• Whether local compliance appears to make a diffetence in terms
of the rates of new housing development across cities.
Controversies over Local Government
Noncompliance with the Law
The city and county housing element updates have become a
battleground for state and local policymakets. Some state officials argue
that local governments are not energetic enough in planning $t housing
and are trying to deflect their fait share onto other jutisdictions. For
their part, local officials often claim that the RHNA "quotas" that they
have been assigned are poorly justified, unrealistic, and untesponsive to
the physical limitations of their communities. "Typically, as soon as
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these numbers are proposed, they, are challenged by local governments as
far exceeding local realities," a representative of the League of California
Cities writes (Carrigg, 2002). Local officials also argue that affordable
housing production is stymied by both high land costs and the lack of
state and federal funds for this purpose. This intergovernmental debate
is hardly new. A decade ago, the previous round of housing element
updates led to similar contentiousness and calls for reform (Jackson,
1994; Senate Committee on Local Government, 1993; Senate
Committee:on Housing and Land Use, 1995).
Once a local update has been drafted, HCD reviews it to gauge
whether the plan can enable the targeted number of units — including
specific amounts of low- and moderate -income housing. If so, HCD
certifies the housing element. If not, the jurisdiction may change its plan
to incorporate HCD's suggestions. But if the element is adopted
without satisfying HCD =or fails to be updated at all —the city or
county is regarded as "out of compliance."
Noncompliant communities are ineligible for certain affordable
housing programs administered by HCD, such as the federal Home
Investment Partnerships Program and portions of the Community
Development Block Grant program, and the state jobs /Housing Balance
Improvement Incentive Grant. Noncompliant jurisdictions are also
much more vulnerable to lawsuits on development matters. In some
cases, judges have ordered noncompliant local governments to reftain
from issuing any new building permits until the matter is resolved.
Noncompliant housing elements make attractive legal targets for parties
who seek to invalidate local land -use or redevelopment decisions---even
though some of these parties are pursuing ends that do nor always
support housing development (Richards, Watson & Gershon, 1998;
Senate Committee on Local Government, 1993, pp. 73 -74). Thus,
although HCD reviews of local housing elements are officially
"advisory," most cities and counties go to some length to achieve the
department's certification, especially since the law instructs judges to
presume a local housing element legally valid if it has been certified by
HCD (Warner et al., 1997).
Compliance with housing element law is certainly not universal. As
of September 25, 2002, about one -third of all cities and more than one-
fifth of all counties have had their housing elements . judged
noncompliant by HCD staff, and some have been so for many years.
Other localities are overdue in submitting their draft housing elements to
HCD, which also renders them noncompliant with the law (see Figures
1..1 and 1.2). At some points in the past, large majorities of jurisdictions
in the state have been noncompliant.
The disappointing levels of compliance among counties and
especially cities have led housing advocates and some state legislators to
argue that some localities are sidestepping their responsibility to
ameliorate the shelter needs of Californians. Since housing has long been
treated as a matter of statewide concern by the state legislature acid the
courts, the potential for intergovernmental conflict is high. State officials
Self -cerh
1%
Housing
element due
5%
:ompllance
33%
Figure 1.1— Cities' Housing Element Compliance Status, as of
September 25, 2002
In col
Housing
element due
Under review by 5%
Figure 1.2— Counries' Housing Memet r Compliance Status, as of
September 25, 2002
periodically seek ways ro beef up compliance with housing elemenr law
or penalize noncomplianr local governments, whereas local officials seek
ro prorect local autonomy over land use— long .one of the major pillars of
home rule —and complain of distanr stare aurhoriries who fail ro
understand local realiries.
In the currenr period, California communiries have been
undertaking the third revision of the required local housing elements.
To reduce the burdens on HCD in reviewing local housing elements, the
law specifies a staggered schedule of housing elemenr updates.. In 1999,
San Diego was the firsr region where localiries were required ro update
rheir plans. In 2000 and 2001, the process rook place in the Sourhern
California region and the San Francisco Bay Area. The requiremenr
mended ro the Fresno, Bakersfield, and Sacramenro regions in mid-
2002, and to the rest of the state's regions by the end of 2003 (see Table
1.1).
In discussing compliance, this study uses the September 25, 2002,
report on local compliance status from HCD, except where noted. The
Table 1.1
Schedule for Third Revision of Local Housing Elements
Counties Affected
(Includes all Cirics
Council of Governments %thin Each County) Revision Dace
San Diego Association of Governments San Diego December 31, 1999
Southern California Association of Imperial December 31, 2000
Gwernmcnts Los Angeles
Orange
Riverside
San Bernardino
Ventura
Association of Bay Area Governments Alameda December 31, 2001
. Comm Carta
Main
Napa
San Francisco
San Mateo
Santa Clan
Solmo
Sonoma
Council of Fresno County Government Fresno June 30, 2002
Kern County Council of Governments Kern June 30, 2002
Sacramento Area Council of Sacramento June 30, 2002
Governments Suner
Yolo
Yuba (plus dries of
Lincoln, Rocklin,
and Roseville in
Placer County)
Association of Monterey Bay Area Montaq December 31, 2002
Governments Santa Cruz
An other local governments All remaining D=mber 31, 2003
SOURCES: HCD websiw,, 2001 California Sa utes, Chapter 85.
0 0
compliance status of individual jurisdictions can change as new tevisions
ate submitted and HCD reviews them. t At present, although the state's
major metropolitan areas have already gone through the third round of
housing element updates, other parts of the state are at an earlier stage of
the process, and their compliance status. in many cases teflects the.
outcomes of the prior round of updates io the early 1990s. These timing
issues will become important in the statistical analysis of local compliance
status in Chapter 3.
Recent Legislative Proposals and Reform Efforts
All groups are dissatisfied with current hawing
element requirements. "
—Staff report for Senate Committee on Local
Government (1993)
Housing advocates have long argued that sanctions should be
stronger and that housing lawneeds mote emphasis on results and less on
process. Senate Bill 910, which passed the state senate in 2001 but died
in the assembly, would have requited that the state controllet fine
noncompliant cities. In its otiginal, mote punitive form, the bill would
have widened penalties for noncompliant jurisdictions to include
ineligibility for certain state transportation funds and directed state
courts to presume that noncompliant housing elements are invalid. As a
result, that bill would have opened up such jurisdictions to mote
litigation from housing tights' organizations and developers.
Discussing the original version of the.bill, a nonprofit housing
developer argued that transportation funds were used "as a bargaining
chip, because, frankly, why should a city get money for transportation
projects to make travel easier if it isn't going to provide housing? It
seems to me that the two components should have always worked
together" (quoted in Bishop and Matema, 2001). Proponents of the bill
also argued that the tougher state tequitements could lead to a 'good
cop, bad cop" relationship that would help local officials argue against
I Readcrs can view the most recent compliance status report ax http: / /www.hccLm.
gov /hpdA=/plan/he/stanmpdf.
neighborhood opposition to affotdable and other housing projects. One
developer said, "I think the local politicians will be relieved of the
controversy that seems to suttound residential development, because they
will defet to state mandate" (quoted in Bishop and Matetna, 2001).
Some central city interest groups also supported the bill as a way to
prompt suburban jurisdictions to share more of the burden of affordable
housing.
Opponents — including some legislators —saw the original bill as too
punitive in its approach to local governments. The League of California
Cities also argued that other state and federal mandates and policies
hinder the ability of localities to accommodate additional housing.
These mandates and policies include agricultural land pteservation
efforts, endangered species rules, and open space acquisition putchases
(see Box 1.1).
Although SB 910 attracted the largest amount of attention, a
number of other bills proposing changes in the housing element process
were considered in the 2001 -02 legislative session. For example, SB
2292 (Dutra), which was recently signed into law, requires that local
governments retain the residential zoning densities that they refer to in
their approved housing elements., Cities and counties that "downzone"
(teduce the allowable density of) residential land must transfer the "lost"
density elsewhere in the community to make up for the loss in potential
housing units. SB 1634 (Figueroa) would have tequited that regional
planning councils, in making RHNA allocations to local governments,
seek to improve the geographic balance of employment and housing in
each region. AB 2863 (Longville), supported by the League of California
Cities and the California State Association of Counties, would have eased
definitions of "substantial compliance" under the housing element law
and broadened the definition of what constitutes a "residential unit" that
can count toward fulfilling a localiry's housing goals. Howevet, neither
SB 1634 not AB 2863 was ever given a committee hearing, and both.
bills died.
. In reaction to the flurry of proposed legislation, a group of
lawmakers and stakeholders, calling itself the Housing Element Reform
Working Group, began meeting in Sacramento to discuss possible
revisions to the law. The working group included interested legislators
Box 1.1
State Law: Does Housing Production Conflict with Other Goals?
The slate housing element law calls on cities and counties to adopt plans and
zoning that can accommodate their projected housing needs. However, stale law
also includes other requirements that may constrain the ability of localities to
accommodate housing (bishop and Materna, 2001; Carrigg, 2002; Senate
Committee on Housing and Land Use, 1995). For example:
• Habitat conservation plans for threatened and endangered spades cover
millions of acres in California.
• Williamson Act contracts, which grant lower property tax assessments to
farm owners who agree to restrict their land to agriculture or related open
space activities, cover about one -third of all privately held land In the state.
• To receive a subdivision map, builders of housing developments of greater
than 500 units must demonstrate that there will be sufficient water supply in
the area far the next 20 years.
• The California Coastal Commission exercises additional land -use authority
In she coastal zone.
• Cities and counties are also required to plan for transportation and
congestion management, air qualat5 and seismic safety; each of these.goals
may conflict with the desire to construct more housing in a given area.
• Cities wishing to annex land for additional housing development must have
the annexation approved by the Local Agency Formation Commission
(LAFCO). By stale law, LAFCOs are charged with ensuring efficient service
delivery patterns and must work toward restricting discontiguous
development.
• Slgnificanl deveopmenl projects, and govemment actions that may
encourage development are subject to lengthy environmental Impact
reviews . and possible litigation under the California Environmental Quality
Act (CEQA). At the stale level, determination of housing needs and
allocations are given a statutory exemption from CEQA. But cities and
counties updating their housing element are given no such exemption.
and staff along with important stakeholders such as the League of
California Cities, regional councils of governments, and the California
Building Industry Association. The group attempted to move toward
greater consensus on various issues and disputes relating to housing
element preparation and review. Many of their ideas became part of SB
910 as it was amended in the assembly (to be discussed in Chapter 2).
Legislators involved in the discussions agreed to hold all relevant housing
element bills in committee until the reform working group had a chance
to move toward agreement on some basic reforms. But consensus proved
elusive.
Plan of the Report
With policy reforms under discussion and concerns about housing
production high, the time is ripe for serious study of housing element
compliance. To introduce the issues and institutions involved, Chapter
2 traces the history of the housing element law in California, discusses its
challenges and controversies, and summarizes the current housing
element process. .
Chapter 3 examines why jurisdictions fail to submit housing
elements that are acceptable to HCD. For example, some communities
have argued that state or regional projections fail to reflect powerful local
realities, such as a lack of vacant land on which to accommodate housing.
Other observers argue that local noncompliance more frequently reflects
an aversion to new housing — particularly affordable units --on the part
of upper - income communities. Antigrowth policies or regulations —
sometimes imposed on local governments by their vote__ are also seen
as a culprit. Still another possibility is that many jurisdictions fail to
meet the housing element requirement because they lack the requisite
planning capacity or experience.
Chapter 4 addresses the relationship of housing element compliance
to housing production. Is it true that compliant jurisdictions add
housing — particularly multifamily development —at a faster rate, after
one rakes into account other local characteristics that affect the level of
housing production? Although the housing element law involves a
requirement to plan rather than to build housing, it presumably was
passed under the premise that effective housing planning would lead to
more residential production.
Chapter 5 discusses reforms that have frequently been suggested for
housing element law and compares California's experiences and rules to
those of other states that review local housing planning and have fair -
share requirements, such as Massachusetts, New Jersey, and Oregon. A
brief consideration of the experiences of these other states in pursuing
similar policy goals may be instructive at this important juncture in the
legislative history of housing elements in California. Finally, Chapter 6
offers concluding observations and calls for a reconsideration of
California's approach to local housing production.
to
2. What Is the Housing Element
Law and How Has It Been
Implemented?
This chapter presents a policy history of the housing element law in
California and discusses how the policy is currently carried out. After
offering a brief introduction to the purposes of the housing element law,
I focus on its origins and development, the process by which it has been
implemented, and ongoing debates regarding its effectiveness and
possible reforms. Housing element policy had a somewhat inauspicious
start in the state, and its processes and institutional responsibilities were
not fully worked out for approximately a decade following the 1969
passage of the law. Once the law began to take its present shape, an
.extended policy debate ensued, often pitting local governments and
advocates of local flexibility against HCD, homebuilders, and affordable
housing advocates. This stalemate has continued to the current day, with
the state now in the midst of the third wave of mandated updates of local
housing elements.
Introduction: A Fair -Share Housing Law
Enacted in 1969, the original housing element law requires that all
cities and counties in California engage in detailed planning to meet their
housing needs. Housing elements do not, in and of themselves, cause
new housing to be built, as this activity rests with private developers (or
nonprofit builders of affordable housing). Rather, the housing element
process is intended to focus the attention of dry policymakers on policy
actions that they might take to make it easier or less expensive for
additional housing units to be built. For example, local plans may call
for reducing or eliminating fees on affordable housing construction,
rewarding developers of certain types of projects by allowing them to
build at higher densities than would otherwise be permitted, or requiring
that all housing developments above a certain size reserve a portion of
units for low- or moderate - income households.
The housing element requitement is sometimes referred to as a "fait -
share" housing law. A number of other states and metropolitan areas
have developed fait -share housing legislation, with the term generally
refitting to a regional process by which each local community works to
accommodate a fait proportion of the region's housing need. Fait -share
plans "determine where housing, especially low- and moderate -income
units, should be built within a region according to such criteria as placing
housing where it will expand housing opportunity, where it is most
needed, and where it-is most suitable" (Listokin, 1976, p. 1).
Jurisdictional fait -share goals are typically defined using a formula that
includes such factors as gtowth rates in households and jobs,
socioeconomic status measures, and often some measure of the local
carrying capacity fot new housing. From 1977 to 1983, the U.S.
Department of Housing and Urban Development (HUD) offeted
matching funds to regions that engaged in the creation of Areawide
Housing Opportunity Plans (Btownlow, 1991, p. 1).l California was an
early innovator in the fait -share housing field. Its law on the topic is
mote than three decades old, although it did not take its current,
relatively strict form until 1980.
Unlike in some states with fait -share approaches, in California
housing production itself has received as much emphasis as the
geographic distribution of housing for lowet- income.families. This
state's broader notion of fait share probably has resulted from its long-
standing problem of housing affordability and underproduction, which
limits the opportunities not only of the poor but also of the middle class
(Calavita, Grimes, and Mallach, 1997). Thus, the fait -shate approach
taken by California allocates among localities goals not only for
l In 1968, Congress required that Federal planning subsidies for metropolitan
planning be contingent on preparation of a regional housing plan, which led many urban
regions to develop early fair -share plans. By die 1970s, many housing activists argued
that fait -share plan adoption should be required for cities of regions to qualify for federal
housing subsidies. HUD did nor: requite this, but did award subsidy bonuses for
metropolitan areas that developed fait-share plans (Llstokin, 1976, pp� xvi, 6)•
12
subsidized or "affordable" units but also for moderate - income and `above
moderate" units —that is, the entire projected housing need. The
philosophy behind such allocation strategies is to
serve as a warning to localities to readjust their zoning ordinance if it does not
allow for their allocated growth share. The units also scree as a growth
management technique alerting communities to the level of future growth they
can expect and enabling them to plan properly to handle development
(Usmkin, 1976, p.. 169).
In addition, because there is a widespread perception among local
officials in California that housing development is fiscally burdensome,
the state has used housing element law as a way to encourage planning
for balanced land -use development —that is, attention to residential as
well as commercial development. Some argue that the state's system for
financing local governments encourages the opposite, since cities'
dependence on local sales tax revenues, and lack of control over property
tax allocation, may cause local policymakers to favor retail development
over housing.
Origins: Housing as a New Component of Local
Planning
Until 1969, land use and circulation, (transportation) were the only
elements.of local general plans required by California law. Housing,
along with other topics such as open space, was sometimes dealt with in
optional general plan elements by ambitious cities and counties. In
1969, then- Assemblymember Pete VViIson successfully carried a bill to
require that each city and county prepare a housing element. This law
made local housing a mandatory element of local general planning and
required that HCD develop guidelines for local governments to follow in
preparing housing elements. In 1971, legislation was added requiring
that localities follow HCD guidelines for the preparation of housing
elements.2
2According to the Select Committee on Housing and Urban Affairs (1974, p. 59),
the change to the smmre was necessary because the 1969 law "had inadvertently referred
to these `mandato ry guideline as 'regulations,' and the attorney general interpreted this
as requiring that regulations be adopted" in accordance with the state's cumbctsorare riles
on administrative procedures. Such rule- making would be interpreted as a state mandate
13
0 1 0
In 1970, additional legislation passed requiring that HCD prepare a
statewide housing element; such action was necessary for the state to take
advantage of federal funds for comprehensive planning assistance. The
law required that HCD develop one- and five -year housing development
goals "needed to house all residents of this state" (quoted in Select
Committee on Housing and Urban Affairs, 1974, p. 50). Notably,
however, this activity was organized separately from the more
comprehensive statewide planning efforts of the Office of Planning and
Research.
The 197Os:. Elaboration of the Housing Element
Requirement
In the early years of the housing element requirement, the state
government devoted little in the way of resources or attention to guiding
or evaluating local housing plans. Governor Ronald Reagan's
administration, for example, was see n as unenthusiastic about the very
existence of the Department of Housing and Community Development,
and it tried unsuccessfully to merge it with other state agencies (Select
Committee on Housing and Urban Affairs, 1974). Budgetary
commitments to housing element activities (and to HCD generally) were
low during this period. HCD budgeted only $17,000 —the equivalent
of one full -time employee —to updating the statewide housing element.
in 1974 -75, for example, and approximately two- thirds of HCD's small
budget was devoted to inspection of manufactured housing.
A senate select committee complained that HCD had had little
public input into the preparation of the statewide housing element.
Moreover, it maintained that HCD had refused to purchase Census data
that would allow detailed computation of housing needs for each locality.
The committee also pushed the department to separate the issue of
production goals for the state from the problem of affordability
that would requite teimbursement of the local housing element process. Since the
legislature had appropriated no money for local housing element preparation, HCD had
concluded that it could not adopt 'regulations.*
14
• . •
shortfalls for low- income residents (Select Committee on Housing and
Urban Affairs, 1974, pp. 54 -55). Furthermore, HUD complained that
California's statewide housing element performance was "less than
exemplary," as the state had prepared.only a draft needs analysis and
work program by October 1973 (Select Committee on Housing and
Urban Affairs, 1974, p. Al2): This document called, for the production
of 225,000 units per year statewide, as well as rehabilitation and
replacement efforts for existing housing.
At this time, the League of California Cities was calling for an
augmented planning role for HCD, in coordination with housing
planning that local governments were undertaking. "We believe that the
future of DHCD ... must include a strengthening, rather than a
weakening, of its functions.. In the area of housing, its role should
embody an institurionalization of a strong state role in helping to provide
for the housing needs of all segments of the people of California" (Select
Committee on Housing and Urban Affairs, 1974, p. A19). A 1975 law
(AB IM called upon HCD to adopt housing element guidelines and to
review dry and county housing elements, resulting in a set of detailed
standards in 1977. These guidelines stressed the regional fair -share
concept (Warner et al., 1997; Senate Committee on Local Government,
1993, p• 18).
During the administration of Governor Jerry Brown (1975 - 1983),
statewide planning, including housing planning, became more active and
central to the mission of the administration. Arnold Stemberg, Brown's
director of Housing and Community Development, had represented
low- income advocacy groups as an attorney, and he took advantage of
the provisions in the housing element law allowing the department to
develop guidelines for the implementation and enforcement of the
statute. The department also took a more aggressive posture toward the
fair -share goals implied in housing element law, by which each local
government is expected to help solve regional housing shortfalls,
particularly for low - and moderate - income households.
15'
The 1980s and 1990s: The Present System Takes
Shape
A new law, Chapter 1143 of the Statutes of 1980, resolved the issue
of HCD oversight. HCD's guidelines were deemed as advisory, but
localities were requited to consider HCD comments before adopting the
local housing element (Warner et al., 1997; Senate Committee on Local
Government, 1993, P. 18). Local housing elements were requited to
a include a needs analysis, a discussion of resources and constraints in
meeting those needs, statements of goals and specific policies regarding
housing, as well as quantified objectives tot construction, conservation,
and rehabilitation to move toward the goal. `This mandate aims at
ensuting that each community accepts responsibility for the housing
needs of not only the resident population but also of those households
who might reasonably be expected to live within the jurisdiction were a
variety and choice of housing appropriate to their needs available"
(HCD, 1988, p. 1). In other words; the concept of fait share was fully
enshrined in state law (Senate Committee on Housing and Lend Use,
1995, p. 25). This statute also introduced the local duty to review and
update local housing elements every five years (Richards, Watson &
Gershon, 1998).
Regional Allocation Process
The regional allocation of housing needs was also developed much
mote fully during this period. HCD began to assign housing goals to
each region, using state Department of Finance projections regarding
future household growth. HCD adjusts these goals to account for the
amount of vacant housing in the region and the expected need for
replacement units. HCD also takes into account advisory comments
from the region's council of governments (COG), an association of city
and county officials that is responsible for regional planning.
Each COG then prepares a regional housing needs assessment. In.
rural parts of the state that lack COGS, HCD itself performs the RHNA
analysis. The first two mandated cycles of the RHNA were in 1981 and
in 1984 -1986 (HCD, 1988). The stated reasons for the regional needs
16
• . •
assessment are to allow consideration of regional issues, distribute
responsibilities equitably among jurisdictions, and relieve local
governments of some of their data - gathering burdens (HCD. 1988, p.
4). The RHNA process is specifically exempted from the California
Environmental Quality Act.
The regional housing need is pegged to at least the level of projected
household growth, although "major economic events" may justify a .
revision to a lower number (HCD, 1988, p. 11). Under the stature,
several factors must be considered in the COG's allocation of housing
growth goals to specific localities:
• Market demand for housing (vacancy rates, housing prices,
household structure, construction, absorption, etc.),
• Employment opportunities (current and projected),
• Availability of suitable sites (including residentially zoned as well
as nonresidentially zoned land that could be used, and the
possibility of redevelopment for housing or for increased
densities of housing),
• Availability of services (including current and future capacity,
transportation, medical and recreational facilities, etc.),
Commuting patterns (time, length, transit availability),
• Type and tenure of housing need (including a consideration of
special populations, such as large households, the elderly,
students, and the military), and
.• Farmworker housing needs.
Planners are also directed to avoid aggravating existing
concentrations of low -income households in certain commtmitics. The
reasoning HCD cites for this requirement presents an interesting
perspective on housing development:
The basic philosophy behind housing element law is that citizens of all
economic levels should have the opportunity to live where they choose in
deem% safe, and sanitary housing.... Some CODs have adopted [allocations)
which plan lot the same percentages of households in each income group in
each locality. This apptoach is based on the position that all areas are equally
suitable fot each income group. The apptoach also reflects the view that the
17
0
current income difference bctween localities reflect the effects of put
governmental actions, such owning and capital improvements planning, and
that housing opportunities for underreptesenred income groups should be
promotcd in governmental planning activities WD, 1988, pp. 23 -24).
In other words, the regional needs assessment is to be used not only to
help enable the production of needed amounts of housing in a region but
also as a device to redistribute the burdens of lower - income households
more equitably across geographic areas. It is likely that many of the
controversies over housing element development are rooted in the desire
of some localities to preserve their existing character, while their COG
and HCD attempt to move them toward a mix of residents more
representative of the entire region. Still, HCD guidelines do point out
that in larger and more complex regions, there may be good reasons to
deviate from the general goal of having each jurisdiction approximate the
diversity of its region. For example, HCD (1988, p. 24) notes that the
age and differentiation of the larger regions often lead to geographic
clusterings of socioeconomic groups, such as retirement communities and
college- student neighborhoods.
It is important to note, however, that the actual weighting scheme in
evaluating these various factors is to be designed by the COG itself
(HCD, 1988, pp. 20-21; Senate Committee on Housing and Land Use,
1995, p. 5). In short,, there has been no uniform, required method for
assigning housing goals to local governments.
Update Process for Local Housing Elements
A locality may revise its need ftom the number given to it by the
COG, but the city of county is required to cite findings, backed by data,
to justify its revised goal. "A local revision may be used in a locality's
housing element even if the COG. has disapproved it. In such a case,
however, DHCD may be less likely to consider the element to be in
compliance with the housing element law" (HCD, 1988, p. 14).
A city or county housing element must provide analysis of local
housing needs, resources, and constraints relevant to the production of
housing, and a five -year polity program detailing actions that the local
government plans to take to address its housing needs. Although there is
a great deal of local discretion in preparing housing elements, there are
18
also 'elaborate statutory provisions" to comply with, which is not the
case for other portions of the general plan (Curtin, 2000, p. 10). The
state's interest in local housing elements has been justified by the fact
that housing is enshrined in state law as a matter of vital statewide
importance.
In determining housing needs, local planners must consider data
regarding the existing number of households and housing units, the
number of households overpaying for housing, and overcrowding,
rehabilitation, and replacement needs. The local government must
provide an estimate of various households considered to have special
needs, such as the disabled, senior citizens, large households,
farmworkers, female- headed families, and homeless persons. The city or
county is also required to note any existing assisted - housing projects that
may be at risk of losing their subsidized status during the time period
covered by the housing element update.
For many communities, identifying a sufficient physical capacity to
accommodate projected housing needs is a major challenge. Localities
are required to provide a detailed land inventory, summarizing the
number of acres zoned for various types of residential development
(single - family, multifamily, mobile homes, emergency shelter,
farmworker housing, and mixed use) and for nonresidential uses. Local
planners must specify the density range and dwelling unit capacity for
these various zones and include information on the availability of services
and infrastructure (HCD, n.d.). The local government's five -year action
plan must identify a sufficient set of potential sites for future housing
development that could accommodate the community's need "by
right" —that is, without requiring a conditional -use permit or imposing
vague conditions on potential homebuilders.3
HCD advises local officials that although a shortage of buildable
land may make accommodating new housing units more complicated, it
does not relieve a locality of its responsibility to provide adequate sites for
new residential development. "If a locality does not have sufficient
3A conditional -use permit allows specified land uses (e.g., a mobile home park) in
areas zoned for other types of uses (e.g., single -family homes), subject to additional local
government discretion.
19
9 0.
existing suitable sites to meet these needs, programs such as changes in
land use, annexation, upzoning, or a second unit ordinance would be
appropriate" (HCD, 1988, p. 53). Redevelopment policy and
infrastructure improvements are also to be addressed as possible ways
increase development potential (Rawson, 2000). From the standpoint of
local officials, however, other policy considerations may conflict with
such intensification of land uses, such as a lack of water or sewer capacity
(often not under the control of the city or county), traffic congestion,
conflicts with existing industrial activities, or seismic hazards.
Each city and unincorporated county area, then, faces a housing
element update in which it is expected to plan for construction needs and
produce quantified objectives for housing units over the next five years.
These objectives are further categorized by household income:
• Very low (0 to 50 percent of regional median income),
• Other lower (50 to 80 percent),
Moderate (80 to 120 percent), and
• Above moderate (120 percent or higher).
The number of needed units so identified, however, "are simply goals,
not mandated acts" (Curtin, 2000, p. 11). In other words, a local
housing element is hardly a self - enforcing policy and does not, in itself,
create or mandate new housing.
Nevertheless, the housing element statute does require that local
planners address governmental constraints on the development of
housing for all income levels. For example, zoning and land -use controls,
building codes, developer fees, and permit procedures must be discussed,
as well as local government plans to overcome or reduce public- sector
barriers to housing production (Rawson, 2000). Local planners must
also assess "nongovernmental constraints ".to housing production, such as
land and construction costs and.the availability of financing. Finally, a
set of miscellaneous topics noted in the statute must be addressed,
including efforts to involve the public in the housing element update, the
potential for energy conservation in new housing development, and
consistency with other elements of the general plan.
Going beyond a listing of objectives, the housing element must derail
what programs and policies the local government foresees undertaking to
20
implement the plan, including efforts to provide sufficient sites for all
types of housing (which may involve changes in zoning or subdivision
requirements), participation in state and federal subsidy programs for
affordable housing, incentives and regulatory concessions for residential
developments, efforts to conserve the existing affordable housing stock
and preserve units that are at risk of losing their subsidies, programs to
promote equal housing opportunities, and efforts to address and remove
governmental constraints on housing construction (HCD, n.d.).
The city or county must send a draft of its housing element to HCD
for review and consider the department's findings on the draft. The
department `considers the element to be in compliance only if every one
of the statutory requirements is met" (HCD, 1991, p. 1). After the city
council or county board of supervisors officially adopts the housing
element, HCD again reviews it for its compliance with the law.4 Because
of the detailed requirements of the statute, housing elements are subject
to close scrutiny by the courts (Curtin, 2000, p. 27).
Growing Contentiousness over Housing Element
Requirements and Compliance
During the late 1980s and early 1990s, when local governments were
completing housing element updates, grassroots opposition to growth
and development burgeoned in many parts of California, particularly in
coastal regions. In this atmosphere, writing plans that focused on how to
accommodate more housing became an increasingly contentious process.
Compliance with the housing element law, as measured by HCD's
certification of city and county revisions, has been spotty at best. In
1991, only 19 percent of localities were certified as being in compliance
by the department, although this proportion grew to 37 percent by 1993
4Even if the department give$ the opinion that the draft elcmcnt complies with the
law, the city or county must officially adopt the clement before the jurisdiction is
considered to be in compliance Although most local governments in such a situation
quickly adopt the approved draft element, some communities dclay in their adoption or
decide to submit a new draft to reflex new local concerns or political changes.
21
and to 52 percent by 1995 (Senate Committee on Local Government,
1993; Senate Committee on Housing and Land Use, 1995). The greatly
increased rates of compliance were traceable in large part to an active
program of technical assistance, combined with legal pressure, by HCD.
HCD worked with the attorney general's office to inform 47 delinquent
localities that their housing element revisions were overdue and that they
faced possible legal action.
According to Timothy Coyle, then- director of HCD, "Many
communities around the state ... had failed to submit any evidence of a
local housing element for, in some cases, as many as 15 years" (Senate
Committee on Local Government, 1993, p. 32). Still, as Coyle and
others affirmed, some of those noncompliant jurisdictions had actually
experienced rapid rates of housing development, including affordable
housing: Thus, the procedural burden of preparing a housing element
may have been the major obstacle for many of these communities in their
lack of compliance. Coyle told a Senate committee, "You can draw no
correlation between housing element compliance and housing
production" (Senate Committee on Local Government, 1993, p. 37).
Nevertheless, two years later Coyle testified that the jurisdictions that
were in compliance accounted for a disproportionate percentage of the
building permits issued in the state — particularly multifamily permits
(Senate Committee on Housing and Land Use, 1995, p. 31; see also
Little Hoover Commission, 2002, p. 18).
Concmu over Litigation
According to some observers, a fear of litigation is a major motivator
for local governments in expending time and resources on housing
elements. Not only housing advocates but also growth opponents, and
sometimes school districts and other overlapping jurisdictions, have used
noncompliant housing elements as a litigation strategy in seeking to
overturn local land -use decisions. The planning director of Long Beach
testified in 1993 that the housing element "is the only element that is
prepared defensively, rather than as a guide to local policy and decision -
making. In most cities, the housing element is prepared as a joint effort
by the city attorney and the planning department to make slue that the
22
• 0
document is defensible in court" (Senate Committee on Local
Government, 1993, p. 62). The penalties for localities can be seiious.5
Nevertheless, it is important to point out that Section 65589.3 of the
Housing Element statute is an important line of defense for local
governments that have received HCD certification of their housing
elements. Added in 1990, this section establishes the "rebuttable
presumption" that HCD's finding of compliance means that the locality
has drawn up a legally valid plan for its housing. In a legal case, the
housing element law requites only "substantial compliance," rather than
perfection, which according to attorney Michael Colantuono "does a
good job of protecting localities from frivolous challenges to their
housing elements" (Senate Committee on Local Government, 1993, p•
37). Because courts have sometimes found localities to be in substantial
compliance even when HCD has failed to certify their housing elements,
some observers have suggested that HCD's teview is mote stringent than
necessary under the law.
After the second round of housing element revisions, and the
suspension of housing element funding in the 1992 -93 state budget, a
variety of interest groups began an effort to reform the housing element
statute. Two major legislative hearings were held, with many voices
ctiticizing the existing policy regime (Senate Committee on Local
Government, 1993; Senate Committee on Housing and Land Use,
1995). Reform discussions were geared at streamlining the planning
process for housing elements and making the RHNA process mote
attuned to local government concerns and capacity for growth. These
discussions also emphasized perfermmce in accommodating housing
rather than the process of housing element planning (Wanner et al.,
1997). Nevertheless, aside from some relatively minor new legislation,
5 "A prudent locality can manage this risk only by keeping its housing element up to
date and building a voluminous record to ensure the element is legally defensible. Those
communities which have failed m do so, often for budgetary reasons, have run significant
tisks and some have paid a significant price.... If a city loses such a case.... its land -use
authority will be suspended... , it will have Just 120 days to prepare a new dement often
necessitating the retention of consultants, and it will likely pay not only its own legal fees,
but those of its opponents.... During the preparation of a new element, nothing gets
built, not even housing, without a court order. . . ." (Michael Colanmono, quoted in
Senate Committee on Local Government 1993, pp. 75-76, legal citations omined.)
23
0 1 0
"six years of reform discussions led nowhere," and no major reforms
cleared the legislature (Richards, Watson & Gershon, 1998). .
Are Needs Met?
Local governments tend to miss their housing unit goals, often by a
wide margin. In particular, the low-and moderate - income segments of
housing needs are typically unmet —not surprisingly given the frequent
need for deep subsidies to fund such projects. In 1988, for example, the
Bay Area Council, a business group, found that only one of the nine
counties in the San Francisco Bay Area was on pace to attain even half its
goals for production of low - and moderate - income units (even using a
generous definition of affordable units). Napa County experienced a
production of only 52 affordable units between 1980 and 1988,
compared to a specified need of 3,906 units (Bay Area Council, 1988b).
A more recent study of 40 fast- growing Bay Area jurisdictions found that
only 34 percent of affordable housing goals were met in those
communities with certified housing elements; only 9 percent of
affordable housing goals were met in noncompliant jurisdictions (Dodge,
2002).
Thus, the preparation of housing elements, whether compliant or
not, is no guarantee that needed housing units will be built. Many fewer
units may be approved, or even proposed, whether due to shifting
demand, homebuilder preferences to build fewer and more expensive
units, land prices in excess of what builders wish to pay, or government
actions that reduce project size for reasons not contemplated in the
housing element.
Concerns over Projections. and Regional Allocations
The regional, allocation of housing needs has also become the subject
of increasing debate and conflict in-recent decades. Some of the concerns
relate to the projections used as the basis for regional and local housing
goals. A 1995 analysis by senate committee staff echoed the concerns of
many COG personnel and local officials in observing that the.
Department of Finance's projections "are strictly mechanical and do not
consider local planning factors such as local growth policies, habitat
24
L
preservat ion, clean air, and traffic congestion" (Senate Committee on
Housing and Land Use, 1995, p. 19).
In the current round of revisions, some commentators further argue
that the Department of Finances projections of population increase and
household formation--- and, thus, projected housing needs —may be too
high because of the tendency of new immigrants to have larger
households .6 Another potential problem with the projections is the
likelihood of decreasing birthrates among women in Latino and Asian
groups in post - immigrant generations (Hill and Johnson, 2002). Over
time and across generations, Latino families more closely approximate
die trends among white and African American families toward fewer
children, fewer persons per household, and more homeownership.
Overall, the complex changes in California's demography are consistent
with any number of very different arguments about future housing needs
(Myers, 2001). Some local officials have argued that population
projections in regional transportation plans (mostly drawn up by COGS)
should be the basis of housing need calculations, but existing state law
requires the use of Department of Finance projections in preparing local
housing elements.
Some celebrate the flexibility of COGS in weighting factors
differently in the RHNA process; others see this as an example of
inconsistency that merits further state guidelines (Senate Committee on
Housing and Land Use, 1995, p•.23). One criticism leveled at COGS
involves their projections of future increases in jobs —upon which
housing needs are, in part, based. Some of this criticism has come from
6Some observers daim that large household sizes are due to 'doubling up" in
otherwise unaffordable housing, but even when controlling for income, foreign -horn
Latinos live in significantly larger households (i.e., more persons in the housing unit) than
the native-born (Myers, 2001, p. 389). Moreover, household crowding is explained
almost entirely by demographic factors (such as nativity and poverty), whereas local
housing market conditions have little relationship to crowding (Moller, Johnson, and
Darr ia, 2002). In brief, immigrant households, particularly among Latinos, are much
more likely to be crowded, measured as more than one person per room. This is a major.
isms for housing needs assessment, since local governments must examine data on local
housing crowding in assessing their current need for additional units. As Myers (2001, p.
392) [totes, 'Crowded housing highlights the dilemma for planners. If the situation is
not viewed as a problem by the affected cultural group, should planners still treat it as a
problem ?"
25
advocates of increased housing production. In the 1980s, for example,
the Association of Bay Area Governments (ABAG) projected that the
nine - county Bay Area would add about 473,000 new jobs between 1988
and 1995. On that basis, the Bay Area Council argued, ABAG's regional
housing goal of 288,000 over that period was about 50,000 units too
low, assuming a standard of 1.4 workers pet household (Bay Area
Council, 1988a). However, from the standpoint of local governments,
job growth projections are sometimes seen as unrealistically high. Some
local officials have called for a mediation process as part of the RHNA
procedure, possibly with some third party evaluating disputes between
local governments and COGS regarding the allocation of housing goals
(Senate Committee on Local Government, 1993, p. 2).
Some objections to RHNA outcomes ate the result of disagreement
with the decisionmaking of COGS, which ultimately reflects a political
process. One ctitic argued that COG allocation processes allow
objections by local governments after the initial allocation, but the
communities that can do the staff work to mount a serious objection
tend to be large cities with large staff resources. In this case, the
objection continues, the unwanted units are likely to be reallocated to
smaller and politically weaker communities, which are often older,
pootet, or built -out inner suburbs (Senate Committee on Housing and
Land Use, 1995, pp. 56-57).
The zeto -sum quality of RHNA allocations puts COGS, which are
constituted.as cooperative organizations of local governments, in a
difficult position. They ate left to carry out a state mandate while still
feeling pressure from their local government members who feel that their
housing allocations are excessive. HCD officials have said that the COG
is the level at which intraregional disputes should be worked out, but
given their weak political basis, most COGS have not been able to take a
strong, autonomous approach. "Without independent authority,
regional agencies have little wherewithal to overcome fundamental
conflicts between local and statewide intetests" (Barbour, 2002, p. 65).
Or, as a senior planner fot the Association of Bay Area Governments put
it, 'From ABAG's perspective, the process has been a serious political
liability for a voluntary membership organization" (Senate Committee
on local Government, 1993, p. 48).
26
Assembly Bill 438 (Totlakson), signed into law in 1998, does allow
,the RHNA process to be further decentralized within a region. If a
county and all the cities within it (or a joint powers authority or
subtegional agency established by the COG) request to undertake the
allocation of housing goals within a subregion, then the COG is obliged
to turn that responsibility over to this smaller body, after assigning the
subregion its proportionate share of the region's housing goal. This
option has not yet been widely utilized, perhaps because of time
constraints dutng the current cycle of housing element revisions (see
Richards, Watson & Gershon, 1999).
The Current Revision Cycle: The Controversy
Continues
Concerns about the housing element law were never fully tesolved
after the previous round of housing element updates ended in the early
1990s. But the topic largely fell ftom the tadat screen in the middle of
the decade, because of the state's difficulty in emerging from the
recession and its associated budget problems. With state funding of
housing element activity postponed during the period of budget
exigencies, requited housing element update activity was suspended for
six fiscal years, from 1992 -93 until being resumed in 1998 -99. Stopgap
legislation was passed during this period to extend the deadlines for
regions and localities to undertake their updates.
When the process started up again, however, the old disagreements
quickly resurfaced, even as housing problems in much of the state had
become mote acute. According to planning expert William Fulton
(1999, p. 114), "Most people involved in the housing element ptocess
agree that the law is ineffective: it is overly bureaucratic and exacting,
has too many loopholes, and even a good housing,element is no
guarantee that affordable housing will actually be built in any given
community. But attempts to reform the law have failed repeatedly in
recent years." One of the political tensions involved in housing element
policy, Fulton argues, is standoffbetween housing interests (both for -
profit developers and antipoverty nonprofits), who are prominent and
influential at the state level, and local governments, who often see the
27
housing element law as unwarranted and clumsy meddling by state
government in home rule, since land -use policy has long been the almost
exclusive purview of local governments.
Many local officials did not look forward to another cycle of
revisions of local housing elements. In fact, both the League of
California Cities and the California State Association of Counties
opposed funding the RHNA mandate at all unless the statute was
reworked; in turn, the governing board of the state's largest COG, the
Southern California Association of Governments (SCAG), voted to
oppose state funding for the RHNA unless the local jurisdictions of the
region no longer opposed it (Richards, Watson & Gershon, 1998).
RHNA was funded despite these protests. After SCAG completed
its allocation process in 2000, local governments in Riverside and San
Bernardino Counties sued HCD as well as SCAG, arguing that the
housing unit goals assigned to the Inland Empire were unrealistically and
inequitably large. Although inland communities hold most of the vacant
land in the metropolitan region, they argued that an unwillingness to
accept housing among the coastal counties of Orange, Los Angeles, and
Ventura led to excessive units being?ssigned to Riverside and San
Bernardino. This case, which went before a Riverside County Superior
Court judge in January 2002, represents perhaps the largest breakdown
of intergovernmental relationships during the current round of housing
element updates and has drawn particular scrutiny to the RHNA process.
In short, the argument is that the regional allocation can become highly
politicized and works to the detriment of less - powerful jurisdictions
(Little Hoover Commission, 2002, p. 19).
Elsewhere, officials in the San Luis Obispo region indicated publicly
that they consider the RHNA goals assigned to that area completely
unattainable (Lyons, 2002a, 2002b). More generally, some county
government officials argue that it does not make planning sense for
counties to be "treated like cities" in the'housing element process, given
the greater capacity of incorporated cities to accommodate new growth.
Counties are limited in their ability to provide city-like services, and
often seek to protect resource and agricultural lands from intrusion by
urban uses (Senate Committee on Local Government, 1993, p• 89).
T
. In the Bay Area, for example, Napa, Sonoma, and Solano Counties all
attempt to direct growth away from farmland and open space and into
cities. A Napa County supervisor notes, "Consider the fact that we're an
agricultural county, and the fact that the state always laments the loss of
agricultural land, and the fact that HCD equates agricultural land and
open space as land available for housing. There is a huge disconnect there"
(quoted in Shigley, 2002, p. 1). In Napa County, the unincorporated area
was assigned 28 percent of the housing unit goals for the entire county;
unincorporated Sonoma received 30 percent of that county's allocation.
HCD officials, in turn, point out that it is up to the regional council
of governments to allocate housing goals among cities and counties in the
region, and the state would prefer that housing be developed where
infrastructure is available and sprawl is minimized . COG planners note
that.housing goal allocations were based in large part on projected job
growth, and some counties seem uninterested in restricting commercial
development even as they bemoan a lack of capacity to take housing
(Shigley, 2002, pp. 14 -15).7
Another major, debate has concerned the extent to which localities
can count rehabilitation or subsidization of existing housing units for
low -income households toward their housing element goals. Affordable
housing advocates and developer groups have argued that new
construction is the primary need, and the alteration of existing private -
market units to subsidized or affordable units does little to ameliorate the
overall supply problem in California. local governments make the case
that rehabilitation is overtly encouraged by the statute and is often the
most efficient way to make affordable units available, particularly in fully
developed communities. AB 438 of 1998 does allow a local government
to count certain types of rehabilitation of substandard units toward its
housing element goal, although its provisions.are quite restrictive.a
71n Napa, city and county officials have formed a working group to see whether
some of the county's housing unit goals can.be shifted to cities, perhaps in exchange for
allowing cities to annex some industrially zoned land near the county airport. Transfers
of housing allocations between jurisdictions are permitted under changes to the law in the
1990s, but the requitcments on such "trades" are relatively strict (Curtin, 2000, P. 10.
Spot example, the housing units in question must be unfit for human habitation
before the renovation, the units must be made affordable to low- and very -low -income
29
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Local officials have also argued that they should be able to count the
creation of shared living facilities, such as congregate care units for
seniors, toward theit housing goals. Generally, HCD has counted new
dwellings as housing units.only if they each contain their own kitchen.
Some communities have converted older motels into affordable
apartments, installing kitchenettes in the process to meet housing -unit
requirements (see Box 2.1).
Box 2.1
A Creative Way to Help Meet Housing Goals
several communities in Cafdornia have acquired (or helped fund the acquisition) of
old motels for conversion Into affordable residential units. This may present a
seemingly simpler method to generate new housing that taunts toward housing
element goals, without perceptibly increasing the density of the existing community.
Poterofally, the renovation of the motel may actually improve the neighborhood.
Nevertheless, motel conversion too has its complications.
Kitchens must be Installed In each unit for it to qualify as a housing unit, given the
existing interpretation of the housing element statute. But major modifications to an
older building may necessitate costly construction changes to make the building more
accessthle, because of the requirements of the Americans with Disabilities Aot.
Planners may find that the converted motel violates local parking or fire Code
requirements for residual dwellings unless further major renovations are made.
School fees may need to be paid, and seismic safety upgrades made. If the motel
conversion displaces existing low-income tenants using the motel as temporary
hcrue g, the city or developer will likely have to pay for their relocation. Finally, there is
the ever - present issue of local growth pofifics; neighbors— including nearby businesses
worried about a loss of motel customers —may object to the conversion (discussion
draws from "Motel Comrereion," 2002).
The Defense of Housing Element Law
Housing advocates and public- intetest law films often defend the
necessity of the housing element law while still recommending reforms.
They point out that the housing element law and other state
requirements for local comprehensive planning emerged in large part
occupants, and former occupants most be given priority to move into the rehabilitated
dwellings. 'Cities and counties are also now permitted to "buy down" marker rate
apartments (of at least 16 units) to make them affordable to low- income occupants for ar
least 30 years. Such local government efforts toward affordability covenants,
rehabilitation, and preservation of at -risk units can be credited for up to 25 percent of the
community's housing goals. There are also stria time deadlines to implemenring these
programs (Rkliards, Watson & Gershon, 1999).
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from frustrations with local exclusion of affordable housing or
multifamily units (see Box 2.2 for an example).
A representative of Catholic Charities tested that the housing
element is often the driving force for localities to create policies to
increase affordable housing opportunities (Senate Committee on Local
Government, 1993, p. 14). An attorney for Legal Services of Northern
California argued that local officials in at least four Sacramento area
communities were able to use the state's requirements to convince "not
in my back yard" neighborhood groups that sites had to be made
available for homeless shelters and transitional housing (Senate
Committee on Local Government, 1993, pp. 118 - 119). And a senior
attorney for the Legal Aid Society of Alameda County pointed to specific
instances where the housing element requirement generated local policy
changes:
As a result of the process, I've seen the City of Alameda lift its prohibition on
multifamily affordable housing development and commit funds to affordable
Box 2.2 -
A Housing Element Challenge fn Folsom
Folsom is a rapidly developing suburban dry In Sacramento County, growing
from 11,003 residents in 1980 to 51,884 in 2000. The city had a net increase of
8,550 housing units during the 1990s, according to U.S. Census data, but failed to
add affordable housing; home prices were the highest In the county. Housing
activists argued that the city was Ignoring Its responsibilities to the state and the
region. Sued by legal Services of Northam California In 2001 for Its
noncompliant housing element and lack of progress toward affordable housing
goals, the city entered a settlement in 2002- Under terms of.the agreement,
Folsom is to rezone 128 acres of land to create a 'land bank° for the possible
construction of up to 2,900 affordable unila. The city also agreed to add an
affordable housing set -aside rewirement for new developments and create an
Impact fee for nonresidential growth to generate money for an affordable housing
trust fund .
At a May 2002 community meeting to receive input on the city's new
development goals, 400 residents attended an emotional meeting, "wlfh some
audience members clutching signs demanding a'total recall' of the City Council
(Hecht, 2002). Although local officials assured the residents that no decisions
had been made on where to locate the rezoned land, and stressed 8iat the
affordable units would house groups such as teachers, firefighters, and retail
clerks, many attendees were not reassured. One homeowner argued. This is
America. These are our homes. These are our imreslments. I donl need crime.
Put It in your neighborhood' (Hecht, 2002; also draws upon Padmanablsan, 2002,
and other Sacramento Bee articles).
31
. housing development; I've seen the City of HeArlsburg commit to expand in
sewer capacity and inuease densities; I've seen the City of East Palo Alm
abandon demolition of affordable units until it identifies the resources to
replace them: and I've seen the County of Madera commit to forming a joint
housing authority with the City of Madem to facilitate affordable housing
development (Senate Committee on Local Government, 1993, p. 108).
Likewise, in,a 2002 report, the Little Hoover Commission (p. 18)
called for an "assertive stance" by the state on the housing element law.
The commission took the position that "communities have more
opportunities than they recognize or acknowledge" to enable housing
development, pointing to such policy options as streamlined permitting
procedures, public - private partnerships, and subsidized water and sewer
fees for affordable housing projects (p. ii). The commission argued for
stiffening penalties against noncompliant jurisdictions, "a longer wait" in
the competition for transportation and park bond funds, and a limitation
on use of redevelopment agency funds (p. iii).
Senate Bill 910 (2001 -02)
As noted in Chapter 1, the most recent debate over housing element
law in California centered over Senator Joseph Dunn's proposal to
strengthen the state's hand in dealing with local governments with
noncompliant housing elements. Aker passing the senate by a vote of 22
to 12, SB 910 was held in the assembly for much of 2001 and 2002 as a
Housing Element Reform Working Group met to artempt to decide on a
consensus approach. As the deadline for taking action on the bill
approached, it was amended in a number of ways. The groups
representing cities and counties still balked at certain provisions in the
resulting bill, however. Ultimately, the bill died in the assembly, as that
chamber refused to suspend the deadline for the bill to emerge from the
policy and fiscal committees. Although it did not pass, the bill
galvanized debate on the issue and may be resuscitated in new form in a
future legislative session.
SB 910 sought to alter the existing approach to noncompliance
under the housing element statute in two major ways:
1. SB 910 required that the state controller fine cities and counties
that either (a) fail to submit an adopted housing element within
32
six months of their deadline, (b) fail to revise their housing
elements, if found noncompliant by HCD or a court, or (c) have
their compliance certification rescinded by HCD because they
fail to take the actions called for in the housing element. The
fine was set at $5,000 per month, or 25 cents per month per
resident of the jurisdiction, whichever is greater. Fines would
accrue to a Housing Supply Account, to be appropriated by the
legislature to assist multifamily developments. State courts could
reduce fines in mitigating circumstances, such as if .
noncompliance were due to procedural rather than substantive
problems.
2. If a court finds a housing element noncompliant, SB 910 would
have directed it to (in addition to any remedy it orders) levy the
fine specified above and also award attorney's fees to the
plaintiff, if the plaintiff is a public - interest organization. Courts
trying housing element cases would be instructed to give HCD's
findings of noncompliance "great weight."
These provisions distressed representatives of local government, who
considered the bill too punitive. They were countered by arguments that
the primary shortcoming of the existing.housing element statute is its
lack of a "stick" to encourage or compel local comphance.9 Beyond the
penalties for noncompliance, however, numerous elements in the bill
were provisions that had been sought by local and regional officials to
smooth the process of regional housing needs distribution. Some of the
more important elements are summarized in Box 2.3. These provisions
91ndecd, some of the matt exclusive communities in California can apparently
thumb their noses at the issue of housing element compliance. policy practitioners
contacted by the author generally agreed that in largely built -out cities with little
development activity occurring, no sizeable low- incomc population, and no active
redevelopment effom the local govemment appears largely immune from litigation under
Elie housing element law. With no open land zoned for multifamily development of
available at reasonable land prices, no nonprofit developers could propose a project that
could become the basis of a coon challenge. The mclwiw communities also may not
mind that their noncompliant housing element disqualifies them from certain housing -
assistance programs, given that they probably do not wish to have subsidized housing in
the first place.
33
0
Box 23
Other Important Provisions of $B 910, As Amended
0
• In allocating housing needs to the various regions of the state. HOD would he
required to consider a region's population projections under its. regional
transportation plan, along with projections by the state Department of Finance.
A process would beset in place for resolving disagreements in situations
where the Department of Finance projections and the regional projections
differ by a substantial amount. To pbe with the three -year cycle of regional
transportation planning, housing element updates would be required every six
years, rather than the current five. .
• COG formulas for allocating housing needs to cities and counties would be
required to consider new factors, such as localities' previous performance in
meeting needs, issues of jobslhousing balance, opportunities for irdill
development, lands protected under open space or farmland programs,
federal and state laws restricting development, Intracoumy, agreements to
steer growth into cities, and opportunities to maximize use of public
transportation.
• Localities would be allowed to petition for a revised share of regional housing
need. If the request is accepted, and the adjustments amount to less than 7
percent of regional needs, the units In question would be redistributed
proportionately to all other local governments.
• Public involvement requirements would be enhanced throughout the housing
element planning process. However, in reviewing local housing elements,
HCD would not be allowed to consider objections to local plans by groups or
individuals If the point in question were not raised during the pudic comment
period (unless it is based on new information or an amendment to the
element).
seemed likely to make what is already a detailed. and complex housing
element statute even more so.
Conclusion
The inability to come to consensus over SB 910, despite attempts to
include all relevant stakeholders in discussions over the bill, illustrates the
long- simmering standoff between state and local officials. Housing
element policy and enforcement has become a prominent source of
intergovernmental antagonism. Given the different perspectives
regarding the reasons for widespread local noncompliance with housing
element law, it is important to investigate which community
characteristics might contribute to noncompliance. The next chapter
addresses this question.
34
3. Why Do So Many
Communities Have
Noncompliant Housing
Elements?
One of the most contentious aspects of the housing element
requitement is the fact that a large percentage of communities are not
compliant with the law —nearly four cities in ten and more than a
quartet of counties.r As discussed in previous chapters, the perspectives
as to why noncompliance is widespread differ dramatically between
housing advocates and state officials, on die one hand, and defenders of
local governments on the other. This chapter examines compliance
status among the state's tides to provide a more informed basis fnt
evaluating why local governments are noncompliant I use measures of
tides' social and demographic characteristics, land -use patterns, and local
policy measures to identify factors that distinguish compliant and
noncompliant communities.
Why. Cities?
Although counties ate also critical in meeting housing needs, the
an concentrates on cities for a set of practical reasons. First, most .
population and housing growth occurs in cities. During the 1990s, 82
percent of the state's population increase occurred in cities that existed as
of 1990; population within city boundaries increased by an additional 12
percent as a result of 18 new municipalities that incorporated between
the 1990 and 2000 Census.
[This tally of noncompliant jurisdictions includes those whore housing element is
overdue as cored as those found noncompliant afar HCD review. In both cases, the
housing element is legally noncomplimL
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Second, statistical considerations make rigorous analysis of counties
problematic. There are only 58 counties in the state (one of which, San
Francisco, is also a city), which reduces the leverage of statistical analysis.
By comparison, there are nearly 480 cities in California. More
important, Census demographic data on counties pertain to the county
as a whole, whereas county housing elements pertain only to
unincorporated areas. One would thus expect that the characteristics of
the unincorporated areas have a very major influence on the county's
housing policies and, ultimately, compliance. Some counties have
numerous unincorporated areas in far -flung locations, each of which may
be quite distinct from the others. In short, there is a "units of analysis"
problem in studying county compliance with the housing element law.
Finally, studying cities allows for use of PPIC's. extensive existing
database on city characteristics. Compiled over several years for other
projects, this dataset includes not only Census variables but some
measures of city budgetary revenues and political and policy attributes.
A 1998 -99 mail survey of local planning officials on urban development
topics also permits an analysis of local government policies and .
perspectives on growth.2 I have combined these earlier databases with
HCD's list of cities' compliance status to examine relationships between
community conditions and housing element compliance.
Four Sets of Factors Potentially Affecting
Compliance
At least four different reasons are given for cities failing to comply
with housing element law to HCD's satisfaction. Note that these four
reasons are not mutually exclusive; all may apply to some degree.
2The survey of planning directors was jointly undertaken by the author and Max
Neiman of the University of California, Riverside. It specifically addressed local
residential poscia and growth management and achieved a response tare of 76 patcent in
the major regions of the state in which it was undertaken (the Central Valley, Southan
California —here including San Diego and Santa Barbara as well as the Los Angela
ama—and the San Francisco Bay Area). The survey was initially undertaken for purposes
not involving housing dements, and the tam "housing dement" was not mentioned in
the questionnaire. This means that respondents probably had little reason to let that
controversial topic influence their response. For more details on the survey and its
results, see Lewis and Neiman (2000).
36
•
Community Social Status and Exclusion
"Although they won't say so publicly, some of these cities don t care
what their assigned (bousinggoall numbers are. They just
won't do it because they don't want low- income
housing in their jurisdictions. "
senator Joseph Dunn, quoted in Wisckol (2002).
Senator Dunn authored SB 910 in an attempt to hold local
governments more responsible for noncompliance. In the newspaper
interview quoted above, he articulated forcefully what some critics of
local housing policies have long implied: that cities are reluctant to snake
the necessary plans to accommodate sufficient housing - particularly
multifamily or affordable developments -- because of a desire for social
exclusion.
Such exclusion, highlighted in some national studies, is often
thought to rest on the attempts of upper - income, homeowner - dominated
communities to insulate their cities from lower - income populations or
rental housing more generally. Whether rooted in a desire to cluster with
neighbors of similar charact eristics, or in racial, ethnic, or socioeconomic
snobbery, these efforts are associated with what is often called a NIMBY
( "not in my backyard ") attitude. It is also possible for low- income or
diverse communities to pursue NIMBY policies, however. The
exclusionary approach to land -use policy is often associated with
homeowners' fears of reduced property values if rental or affordable
housing is permitted in the neighborhood. It is also often linked with the
aspirations of suburbanites to associate with people of similar
socioeconomic status and to separate themselves from the perceived
problems of large central cities. For example, the mayor of Menlo Park, a
Silicon Valley community, has been quoted as saying that his city's
residents "desire to have neighbors who live in homes similar to their .
own" (Nguyen, 2001).
To understand the connection between community status and
housing element compliance, one can examine such characteristics as the
city's median household income, the homeownership rate, or the
37
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-percentage of the population that is white and non - Hispanic.
Homeownership rates are of particular interest, because some authors
have attributed local anrigrowth policies to cartel -like behavior on the
part of homeowners, who wish to boost their housing values by
restricting the supply of new housing (Brueckner, 1995). Fischel (2001)
argues that homeowners intense desire to protect the value of their main
asset —their home — underlies most local land -use policies.
Local Land-Use Characteristics and Vacant Land
"Same cities are land - forked with growingpopulations and little
available land- other cities are facing booming jab markets
with high -paid workers where the competition for
housing drives the price of the smallest cottage
over half a million dollars. "
—Letter from the League of California Cities and
California State Association of Counties to
Senator Joseph Dunn, opposing SB 910:
Many city governments argue that they lack sufficient land resources
to accommodate the number of new housing units required under.their
allocations from the regional COG. This argument can be quite
powerful. Many older communities, often inner -ring suburbs, are
essentially "built out," meaning that they lack any substantial vacant land
on which to construct new buildings. In such circumstances, cities with
significant housing unit goals are left with the more difficult, conflict-
ridden, and potentially expensive options of rezoning existing
neighborhoods for higher - density housing or using redevelopment
;,powers to change current land uses so as to include more housing units.
In a meeting at HCD's Division of Housing Policy Development,
department staff indicated to the author that the requirement to provide
a sufficient inventory of appropriately zoned land sites perhaps does the
most to "trip up" local governments.in their quest for compliance; many
localities prove unable or unwilling to produce such an inventory. The
staff indicated, however, that local governments often have an inflexible
38
0
notion of vacant residential land, as many cities have vacant sites that are
zoned for industrial or commercial use and could be rezoned to
accommodate housing. Highly developed communities may also be
dominated by single- family residential areas that could accommodate
additional units. For example, such cities could adopt a more liberal
policy on secondary ( "in -law ") units3 or could "upzone" single - family
areas, where appropriate, to allow more apartments and condominiums.
Nevertheless, it is also true that many of such older, inner
communities in California have already felt the painful externalities of
high density, as their populations have grown so rapidly as to create
traffic and parking problems and strain public services. Such
communities are often at the receiving end of immigration and other
demographic changes, and communities like Santa Ana have expressed
concerns about fire hazards and sanitation problems resulting from a
profusion of apartments--often overcrowded -end legal or illegal
secondary units in an already dense built environment (Perkes, 2002).
Several variables can shed light on the perspective that local land -use
characteristics affect housing element compliance. Such measures could
include the population density of the city and the age of its housing stock
(likely to be indicative of a lack of "fresh' land sites in many
communities). Although there is no database of vacant land in
communities statewide, the survey of local planning officials provided a
helpful surrogate measure. Respondents were asked to rate the
importance of land supply as a constraint on housing development in
their city, on a 1 -to-5 scale.4
31r has long been stare policy to ease local restrictions on secondary units. Most
recently, AB 1866 (Wright), signed into law in 2002, requires that local governments
provide for ministerial approval of applications (meaning that no discretionary reviews are
allowed) for secondary units dur meet the local ordinance. .
4AIchough the measure is somewhat subjective, it is reassuring to note that it is
highly associated with another measure of local developable land. In a 1998 survey of
California city managers, respondents were asW to indicate whether their city was built
our (meaning it had 'little or no vacant land available*). This (dichotomous) measure
from the city manager survey is correlated with the five -point measure from the planner
survey of the constraint posed by low land supply at r = .45 (prob. < 0.000).
39
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The Resources of the Local Government
"My y clients are typically smaller communities without the staff apertise
or other resources of the state } largest cities and counties, and
complying with the Housing Ekment statute can
be a Herculean task for these communities. "
= Michael Colantuono (a city attorney), quoted in Senate
Committee on Local Government (1993, p. 67).
From almost any perspective, engaging in a full -scale revision of a
local housing element is a long and complex process, calling for
considerable staff time and capabilities. Many communities spend
considerable.sums to engage outside consultants to prepare housing
elements. For small cities, those without many professional staff, or
those that are fiscally strained, resource limitations may significantly .
hinder the preparation of adequate and timely housing element.
Furthermore, virtually all observers of the housing element law agree
that "performance" in producing housing for low- and moderate - income
households depends on the availability of subsidized housing funds.. In
particular, units for very-low- income families are almost impossible to
build without heavy subsidies. Both the federal and state governments
cut back housing assistance after a peak in the 1970s, and competition
for such fiords has since been very keen. Few communities can support
housing subsidies from their own general -fund budgets, although some
larger or wealthier jurisdictions do engage in some local funding of
affordable housing. Thus, a lack of local government resources is seen as
hindering genuine local efforts at compliance.
HCD staff counter that the department has put considerable time
and resources into technical assistance, with a particular effort at helping
small cities and counties attain compliance. In some cases, HCD staff
analysts have been dispatched to communities and taken the lead in
- helping the locality to prepare its initial draft. They indicated that small,
rural communities often have an easier time reaching compliance than
larger cities, because the former are often more enthusiastic about future
growth.
A number of city characteristics may be relevant in measuring local
government resources and planning capacity. These include the city's
40
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population size, planning staff resources, and revenue base. Staff
resources are implied by local planning officials' responses to a question
regarding the degree to which "lack of personnel to review.projects" plays
an important role in "constraining or slowing residential development in
your city." Fiscal resources are measured as the city's own- source, general
revenues per capita.5 As a secondary fiscal measure, I estimate the
percentage share of locally generated property taxes devoted to the
municipal government (as opposed to school districts, the county, or
other local governments). It is often thought that cities with a larger
share of local property tax revenues will be more accommodating to
residential development, because such development will come closer to
paying its way.
Local Politics and Residential Growth Policies
"7 want housing in the community, burl want it to reflect the
amount that can be served... IV have to throw out all our
growth - management policies (m meet the city's assigned
housinggoall ... 7 think the voters would
throw out the City Council "
—Allen Settle, Mayor of San Luis Obispo,
quoted in Lyons (2002b).
A city's social status, land -use characteristics, and government
resources may well affect its chances of achieving housing element
compliance. But local growth policies and development decisions are
ultimately political choices made in the context of a city's political
traditions. One aspect that HCD staff members review in examining
local housing elements is whether the community has taken full account
of the "governmental constraints" on housing development and
whether the city has a plan of action to reduce or overcome those
constraints.
5This is essenrially a snc¢suce of total revenues per capita, from which are subtracted
incergov nmental funds and "functional" or "enterprise" revenues, such as current service
charges.
41
Evidence from a previous PPIC study indicates that antigrowth
politics and efforts to manage or shape growth have emerged in strong
form in a fairly small number of California communities, in a weaker or
more sporadic form in many others, and not at all in some cities (Lewis
and Neiman, 2002). Residential growth- management policies and
citizen initiatives that seek to slow growth, along with lengthy city
permitting or approval processes, may give HCD reviewers cause For
concern. More indirectly, specific controversial development projects, or
a history of disputes between city officials and citizen groups on growth
issues, may contribute to community rancor that makes officials wary of
advancing a plan for additional housing development. Where growth is a
hot - button issue, production and affordability goals may take a back seat
to political exigencies, which in turn could lead to a thumbs down from
HCD housing element reviewers.
The survey of local planners provides several measures of local
government policies and orientations toward growth and housing;
specific items will be explained as they are introduced in the analysis.
One of the most important measures is a count of the number of overtly
restrictive growth- management policies pursued by the,city. Such
policies include:
• A substantial recent reduction of residentially zoned land,
• Annual limits on building permits, on housing units, or on
multifamily dwellings,
• A formula for allowable numbers of new housing units,
• An official "population ceiling" for the community, or
• A moratorium on building permits or water or sewer
connections.6
One might assume that an antigrowth approach simply reflects
community status, one of the other potential causes of housing element
noncompliance. But the earlier PPIC study indicates that local
6The survey also measured whether the city had any of nine other forms of
residential growth management. However, these other policies are less overtly ratrictive
of residential growth and showed no evidence of effects an housing element
noncompliance in regression analyses. For a discussion of the various measures, see Lewis
and Neiman (2002), Chapter 3.
42
socioeconomic status was only a weak predictor of whether a community
engages in testtictive tesidential policies (Lewis and Neiman, 2002).
Timetable for Housing.Element Updates Influences
Compliance Status
An initial step in analyzing which characteristics ate related to
noncompliance involves compating compliant and noncompliant cities
across several dimensions. Before undertaking this comparison,
however, it is important to point out a potentially severe complication
for this exercise: Not all local governments are on the same schedule
fot updating their housing elements and having them reviewed by
HCD.
The Ftesno, Bakersfield, and Sacramento tegions, at this writing,
were the most recent metropolitan areas to be scheduled fot updates and
reviews (see Table 1.1). Thus, localities in these areas, where housing
element revisions were due by June 30, 2002, have had only a few
months to receive a favorable opinion from HCD, and some jutisdictions
have yet to submit their revision. Cities in the San Francisco Bay Area
have had about nine months and those in the SCAG region neatly two
years to attain compliance, compared to nearly three years in the San
Diego region. By contrast, localities elsewhere in the.state had not faced
a housing element revision deadline fot over a decade, as of HCD's
September 25, 2002, report on compliance status, on which this analysis
is based. Thus, such cities have had a great deal of time to work with the
department and bring theirr housing elements into compliance.
Comparing all cities in the state that are compliant to those that are
noncompliant, then, might be akin to comparing apples with oranges.
In the regression analysis below, I will make special efforts to control
statistically for such scheduling differences. Statewide, fewer than half of
the jurisdictions that have submitted draft elements for review since 1999
are in compliance, whereas the vast majority of jurisdictions whose status
teflects pte -1999 housing elements are compliant.
43
Comparing Compliant and Noncompliant Cities:
A Preliminary Profile
With this caveat in mind, this section compares compliant and
noncompliant localities in the regions that have already been required to
undertake housing element revisions in this round (San Diego, SCAG,
San Francisco Bay Area, Ftesno, Kern (Bakersfield), and Sacramento
regions). A second comparison is then undertaken for cities in the other
portions of the state.
Included in the noncompliant category ate those cities that have
received an opinion of noncompliance from HCD as well as cities that
are overdue in submitting their draft housing elements to the
department. For many years, the departments compliance status report
referred to such localities as having an "obsolete' housing element,
although they ate now referred to mote gently as being "due." Legally,
they are not in compliance.
Table 3.1 presents the profile of compliant cities and noncompliant
ones for the regions that have already been involved in housing element
updates. The three measures of community status all indicate that
noncompliant cities tend to be of slightly higher status. These
comparisons are mildly supportive of the "social exclusion" perspective
on housing element noncompliance. Nevertheless, the differences are
not great, and statistical testing indicates that none of the socioeconomic
characteristics ate statistically significantly higher in noncompliant than
in compliant communities.
Regarding local land -use characteristics, the housing stock of
noncompliant cities tends to be older than that in compliant cities.. This
difference is statistically significant. Otherwise, there is no support in
this comparison fot the argument that a lack of vacant land underlies
noncompliance. Noncompliant cities in these regions actually have
lower population densities, on average, than compliant cities, and their
planners are no more likely to say that land supply has constrained
residential growth.
In this simple comparison, the "lack of tesoutces" reason for
noncompliance receives little support. Although noncompliant
communities ate significantly smaller in average population size, they
44
0
Table 3.1
Comparison of Compliant and Noncompliant Cities in the San Diego,
Southern California, San Francisco. Bay Area, Fresno, Kern,
and Sacramento Regions
Compliant Noncomplant
Community Status
%homeownership 602 62.7
%white and non- Hispanic 48.0 51.5
Median household income, $ 54,780 59,913
Land -Use Characteristics
Population per sq. mi * 15,111 4,322
Supply of land constrains development, per
planning director (five -point scale) 3.8 3.6
Median year homing bar (as of 1990) * ** 1969 1965
Resources and Capactry .
Population* 64,160 46,788
No. of planning staff per 10,000 population 1.9 2.1
(Dry own -sou¢: general revenues per capita,
1993,$ 507 593
Cityls % share of property tax revenues* 11.5 13.1
Local Policies/politics
No. of restrictive growth - management policies
(our of seven possible) 0.52 0.72
City requires that residential projects include
affordable component, % 32.3 34.3
Citizen initiatives have slowed growth, according to
planning director, % 18.3 18.2
Level of cirizen opposition to growth, according ro
planning director (five- poinrscale) 2.7 2.8
SOURCES: Author calculations based on data from the 2000 Census, the 1990
Census, a 1998 -99 mail survey of city planning dirraws, and the HCD compliance
list as of September 25, 2002.
NOTES: *p < 0.1; * * *p < 0.01. Aurrisks indicate statistically significant
. differences in means between compliant and noncompliant ciries, using a two- railed r-
Mr. Demographic measures are for 2000, except for median year of housing. For
population comparison, cities of over one million residents are omitted. For city own -
source general revenue comparisons, cities of kiss than 1,000 residents are omitted to
reduce the influence of extreme oudiers in the comparisons. Geographic makeup of
regions is lured in Table 1.1. There are 299 cities with usable homing element status
dam in these regions, although sample sizes are smaller for survey -based items because
of survey nonrespome. .
45
have toughly the same number of planners pet 10,000 residents as
compliant cities, and they also receive more own - source revenues than
compliant cities. The percentage share of local property tax revenues is
also greater in noncompliant cities, despite kequently expressed
arguments that a greater share of the property tax base would make cities
more accommodating of housing.
Finally, the comparison finds muted differences between compliant
and noncompliant cities regarding local growth policies and politics.
None of the four measures from the planners' survey shows significant
diffetences between the two groups of municipalities, although the
average noncompliant city has about 0.2 additional restrictive growth -
management policies.
Table 3.2 repeats this comparison, but this time fat cities in parts of
the state that had not yet been requited to submit housing element
updates. Such regions constitute only a small share of the state's
population and include the Central Coast area, portions of the Central
Valley, and the rural north and mountainous counties of the state. In
these tegions, only a small share of cities were noncompliant (16
percent), which is perhaps not surprising since most had had about a
decade to attain compliance.
In these parts of the st ate, differences among the compliant and the
(telatively few) noncompliant communities tend in many cases to be
starker. For example, all three measures of community status are highs,
at a statistically significant level, in the noncompliant communities.
Likewise,, most measures of local growth policy and politics show
substantial differences between the two sets of communities, although
this comparison can be only suggestive, as most cities in these regions
were not sent the planner survey.? The average noncompliant city has
substantially mote gtowth - management policies and a much higher level
of citizen opposition to growth and use of citizen antigrowth initiatives
than the average compliant city. The comparison between compliant
and noncompliant cities is again murky when it comes to local land -use
71n the regions discussed in Table 3.2, only cities in the Central Valley and Santa
Barbara Counry "old have received the survey. Of the 125 cities compared in the table,
48 responded to the survey.
46
Table 3.2 .
Comparison of Compliant and Noncompliant Cities in the
Remainder of the State
Mean Value
Complianr Noncompliant
Community Status
%homeownership" 57.2 62.1
%white and non - Hispanic"` 60.9 73.7
Median household income, $ "" 35,341 44,441
Land Use Characteristic
Population per sq. mi. 2,686 2,648
Supply of land constrains development, pct
planning director (five-point scale)a 2.5 3.1
Median year housing built (as of 1990) 1966 1967
Resources and Capacity
Population 20,307 245261
No. of planning staff per 10,000 population° 1.7 2.4
City own - source general revenues per capim, 19935 $ 466 478
Gty's % share of property tax revenues 14.8 15.4
Loral PoliciesMolitics
No. of restrictive growth - management policies (out
of seven possible)2— 0.43 2.57
City requires that residential projects include
affordable component, %a 19.5 14.3
Citizen initiatives have slowed growth, according to
planning director, 95a "' 2.5 42.9
Level of citizen opposition to growth, according to
planning director(fuve- poinr scalela— 2.3 3.9
SOURCES: Author calculations based on data from the 2000 Ccosus, the 1990
Census, a 1998 -99 mail survey of city planning directors, and the HCD compliance
list as of September 25, 2002.
NOTES: "'p c 0.05; " " "p c 0.01. Asterisks indicate statistically significant
differences in means between compliant and noncompliant tides, using a tiro- tailed r-
resr. Demographic measures are for 2000, except for median year of housing. For city
own-source general revenue comparisons, cities of less than 1,000 residents are
omitted to reduce the influence of extreme oudies in the comparisons. This table
relates to cities in all pass of the state not covered 6y Table 3.1. Them are 125 tides
with usable housing element scams data in then regions, although sample sires are
considerably smaller for survey-based items because the survey was not directed at
cities in some pans of the stare and planners from some cities did not respond.
aLimimd number of planner survey responses in these regions make comparisons
on these items less reliable.
47
0 1 •
characteristics and local government resources and capacity. Here, none
of the differences are statistically significant.
A decade after these cities were initially asked to submit their last
updates to HCD, only a relative handful of laggard communities were
.unable to reach compliance. The simple comparison indicates that such
cities tended to be relatively well -off and, so far as we can tell,
experienced substantial local turmoil over residential growth.
Probing Further: A Statistical Model of
Noncompliance
The comparison above is suggestive, but provides only a simple
sketch of noncompliant communities. To examine more systematically
the factors that are associated with noncompliance, I undertook a
multivariate analysis. Tables presenting the detailed results of the final
estimations are in Appendix A. This section describes the analytic
approach and the next section summarizes the most relevant results.
The logistic regression method used is able to identify the
relationship of various city characteristics to noncompliance, while
holding constant each of the other characteristics represented by variables
in the model. As suggested above, the four types of city characteristics of
interest include measures of community social status, local land -use and
development characteristics, resources of the city government, and
measures of local growth policy and politics. Cities whose housing
elements are overdue for HCD review are again treated as
noncompliant.8 I analyzed compliance as of September 25, 2002.
Cities under review by HCD as of that date are dropped from the
analysis.
A set of preliminary analyses helped identify which specific variables
measuring these characteristics would be most likely to contribute to an
8An additional (ordered logit) model was estimared to ecamine housing element
compliance on a three -point scale: in compliance, overdue, and out of compliance. The
results of this model werc very similar to the results discussed for the dichotomous
mpsure (complian[/troncomplian[). .
48
0
explanation of noncompliance. The variables ultimately used in the
model are listed and described in Table 3.3.9
I used two techniques to control for differences that relate to the
characteristics of the region rather than of the city itself. First, I account
for the "timing issue" by including a measure of the number of months
that elapsed since the deadline for sending housing element updates from
the city's region to HCD. This variable will indicate whether the simple
passage of time makes it more likely that cities will be able to reach
compliance. Second, indicator variables are used to denote cities in
particular areas. I control for location in the San Francisco Bay Area, the
18 -county Central Valley region, and the Inland Empire (Riverside and
San Bernardino Counties). The Bay Area had gone through the review
process quite recently. The Inland Empire was engaged in a legal dispute
with SCAG and HCD over its housing allocation numbers. Both
regions have low compliance rates. Cities in the Central Valley face
challenges of rapid growth, relative poverty, and, often, fiscal constraint.
The measures of local policy —such as the number of strict growth
controls and degree of planning staff shortages--are taken from the PPIC
mail survey of planning directors in the Bay Area, Central Valley, and
metropolitan Southern California (including Santa Barbara County as
well as the SCAG and San Diego regions). For this reason, the analysis
must exclude cities outside those regions. (The excluded regions account
for a small part of the state's population,) Likewise, the 24 percent of
cities in those regions whose planning directors did not respond to our
survey cannot be included.
. 9Mexsuring socioeconomic status at the city level creates some difficulties in such a
model because of the high collinearity among such measures as income, education, race,
and homeownership: After some exploration, I decided to include two relevant vatiables:
the homcownerahip rare of the city and the percentage of the population composed of
non - Hispanic whims. These variables capture two important measures of status and
diversity, respectively, that might affect (oral housing policies, but the vatiables are not
roo highly correlated to disentangle (r - .44). Where median income was substituted for
homeownership, results did not differ greatly. There was also no evidence that the
proportion of the population composed of Hispanics, African Americans, or Asians was
related to noncompliance.
49
0 •
Table 3.3
Variables Used to Predict Housing Element Noncompliance
Variable
Definirion/Nores
• owner - occupied
% of housing units owner- occupied
• white
% of city residents who are white and non - Hispanic
• recreational housing
% of housing units that arc for recreational or seasonal use
Population density
Natural logarithm of the city's population per sq. mi. .
Age of housing
Age of median housing unit, in years, as of 1990
Low supply of land
. Planning director's response, on a fiv poinr scale, to
statement that supply of land for residential growth is an
important factor in constraining growth in the city
Population
Narm-A log of city population
Own -source revenues
Natural log of own-source revenues per capita (defined as
total revenues minus intergovernmental revenues and
minus current service charges), 1993
% of property tax
% of locally generated property rest revenues that Now to the
municipal government
Lade of planning staff
Planning directors response, on a five -point scale, to
statement thar a lark of personnel to review project
proposals is an important factor in constraining growth in
the city
Longer review process
Planning diromes response regarding whether the time
required to complere the review of residential projects in
the city has been shortened, stayed the same, become
somewhat longer, or become much longer (four -point
scale)
Overt growth restrictions
Number of the following policies adopted in the city.
annual liruits on total building permits, annual limits on
residential units authorized, annual limits on multifamily
dwelling units built, recent substantial reduction inland
zoned residential, policy linking local residential growth
rare to a formula or external growth rare, formal
population ceiling, moratorium on development or on
.
warerlsewer hookups
Affordability set -aside
= 1 if planning director indicates that city has a policy to
require residential developments to include affordable
housing
Initiatives /neighborhoods
Planning directors response, on a four -point scale,
regarding whether important city policies affecting
residential growth have mostly been enacted by the
council without neighborhood pressure, enacted by the
council as a result of neighborhood pressure, enacted both
by the council and the voter initiative process, or enacted
pretty much exclusively as a result of initiatives
Inland Empire location
= I if city is in Riverside or San Bernardino Counties
Bay Area location
= 1 if city is in the jurisdiction of the Association of Bay
Area Governments
50
Table 3.3 (continued)
.Variable DefunitioniNores
Central Valley location = 1 if city is in the counties of Butte, Colusa, Fresno, Glenn,
Kern, Kings, Madera, Merced, Placer, Sacramento, San
Joaquin, Shasta, Smnislaus, Soviet, Tehama, TulamgYolo,
or Yuba
Months since deadline Number of months elapsed between the dace when the city's
housing element updare was due and September 2002
SOURCES: Information on low supply of land, lack of planning staff, review of
residential proposals, number of oven restrictions, affordability ser- asides, and initiadved
neighborhoods measures is derived from a 1998 -99 PPIC survey of city planning
directors. Own -source revenues and percentage of property tax arc calculated From
California Stare Controller dam. Months since deadline was calculated by the author.
Age of housing is from the 1990 Census: All other variables arc derived from the 2000
Census,
Key Findings of the Multivariate Analysis
Table 3.4 summarizes the variables that showed a statistically
significant relationship with city noncompliance. (For more detailed
results, please consult Appendix A.) The results indicate that many city
characteristics that one might expect to come into play.iu'rcpd to
housing element preparation are not, in fact, associated with whether
cities comply with the housing element law, once one controls for other
relevant features of the city. However, a number of patterns do stand out
in this analysis.
First, the measures of local housing polity seem ofkey importance.
Cities whose planning directors report that the review process for new
development proposals has been getting longer, and cities with more
overt growth controls, experience more trouble in attaining compliance.
For example, each restrictive growth policy that has been adopted
approximately doubles the odds that the city will be found
noncompliant, This relationship is perhaps not surprising, because
HC staff pay close attention to local government constraints on
housing development. Communities that see themselves as a city of
single- family homes may have difficulty in showing how they plan to
accommodate the number and variety of units necessary to meet their
housing goal.
• 1 •
Table 3A
City Characteristics That Are Statistically Associated
with Noncompliance
Whether cities requite new housing projects to include affordable
housing is a significant predictor of compliance.10 HCD reviewers may
take such "inclusionary" housing policies inro.account as a way to
overcome barriers to the production of new units for low- or moderate -
income households.
All else equal, cities with larger populations are mote likely . than
others to teach compliance. This relationship may indicate that large
local governments have the resources necessary to complete a successful
housing plan. On the other hand, there is no evidence that the fiscal
strength of the city or the size of its planning staff influences the
probability of compliance. Larger population size may also indicate that
Mrhis result is significant only when controlling for whether the planning director
feels that-voter initiatives and neighborhood pressure have been a major source of slow -
growth policies. I do not include this latter variable in the main model because 14
percent of survey respondents answered "don't know; which merits thar such cities most
be dropped from the analysis.
52
As Characteristic
Increasedoccurs,
Probability of
Variable
Noncompliance...
Age of housing
Increases
City population
Decreases
Longer review process
Increases
Overt growth rcavicriom
Increases
City requires affordability set -aside
Dccreasesa
Months since housing element due
Decreases
Inland Empire location
Increases
San Francisco Bay Area location
Increases
Central Valley location
Incenses
NOTES: The variables are defined in Table 3.1. Variables listed
in Table 3.1 but not in this table were not related to noncompliance ar a
statistically significant level, defined as p <.I.
a "City requires affordability set- aside Is statistically significant only
in the model that controls for "slow growth pressure from initiatives!
neighborhoods.-
Whether cities requite new housing projects to include affordable
housing is a significant predictor of compliance.10 HCD reviewers may
take such "inclusionary" housing policies inro.account as a way to
overcome barriers to the production of new units for low- or moderate -
income households.
All else equal, cities with larger populations are mote likely . than
others to teach compliance. This relationship may indicate that large
local governments have the resources necessary to complete a successful
housing plan. On the other hand, there is no evidence that the fiscal
strength of the city or the size of its planning staff influences the
probability of compliance. Larger population size may also indicate that
Mrhis result is significant only when controlling for whether the planning director
feels that-voter initiatives and neighborhood pressure have been a major source of slow -
growth policies. I do not include this latter variable in the main model because 14
percent of survey respondents answered "don't know; which merits thar such cities most
be dropped from the analysis.
52
0 0
the city government is more insulated from the pressure of homeowners
and more subject to the influence of progrowth business elites, who are
likely to be in favor of additional housing. As Fischel (2001) shows,
small local governments are more likely to be attuned to the interests of.
homeowners, who are risk - averse regarding new development because so
much of their wealth is typically tied up in their home value.
An older housing stock is also associated with a greater likelihood of
noncompliance. Cities with older housing may be more "settled" and
have a more established community character; they are also likely to
contain less vacant land. Similarly, older housing indicates that there has
been less new housing construction in recent decades, and thus the
community may have come to expect a slow pace of change.11
Finally, the regional context within which each city plans for housing
matters a great deal for compliance rates. As discussed, the timing of
housing element revision deadlines differs among the state's regions. The
measure of the length of time that has elapsed since the deadline for
submitting an updated housing element is one of the most statistically
significant predictors of noncompliance. Specifically, the results indicate
that each month that has elapsed since the region's deadline renders a
city approximately 5 percent more likely to reach compliance. Location
in the Bay Aiea, the Inland Empire, or the Central Valley is also
associated with noncompliance, even after controlling for the various city
characteristics. Municipalities in each of these areas of the state show
more difficulty in attaining compliance.12
Some Caveats
The above analysis presents a useful clarification of the community
characteristics that underlie noncompliance. Nevertheless, the analysis
ilI use the age of the city's housing stock as of 1990, rather than as of 2000, to
avoid the statistical problem of endogeneity. That is, a noncompliant housing element
may lead to less new construction; thus, one should not, in turn, use "old housing° to
predict noncompliance. By using a measure of housing age from a decade ago to
represent past community characteristics, one is on firmer footing in predicting ttureat
compliance status.
12The implicit comparison is to cities in other regions included in the analysis.
Spo ifically, these include cities in San Diego, l.os Angela, Orange, Imperial, Ventura.
and Santa Barbaro Counties.
53
• •
has its limits. First, the dependent variable— housing element
compliance —is a dichotomous, or "yes /no; measure that may capture
local housing policy in only a rough way. Simple dichotomies often
make for more uncertain statistical estimations than more "continuous"
variables, such as the number of housing units produced or the number
of policies passed. I did attempt to analyze noncompliance using a three -
point scale (in compliance, overdue, out of compliance) that provides an
additional category (overdue) that might be viewed as an intermediate
case between compliance and noncompliance. However, results did not
differ much from those just discussed.13 In defense of the dichotomous
measure, housing element compliance or noncompliance is worthy of
attention in and of itself, because of its importance to cities for the legal
defensibility of their general plans and their ability to compete for
affordable housing funds. Still, those interested in a more encompassing
explanation of local residential policies should supplement this report
with other sources ;14
Second, this analysis is of compliance status at a particular point in
time —a "snapshot." Although the analysis controls for region and for the
amount of time that the city has had to reach compliance, it cannot take
into account all factors that might complicate compliance. For example,
Marin County and its cities Collectively decided to prepare a countywide
housing analysis and housing element updates. All the jurisdictions in
the county were subsequently overdue, and by September 2002 all had
submitted draft housing elements judged nonoompliany except for two
localities whose housing plans were under review by HCD.
Finally, although it is tempting to assert that factors such as small
populations or a large number of growth controls "cause"
noncompliance, I have not put forward any behavioral model of either
131n the ordered logit model of these three compliance statuses, the same.variables
were significant (and with the same signs), except for city population size. which was
insignificant, and Central Valley lutation, also insignificant. The overall fit of the
ordered logic model was less satisfactory than the dichotomous model discussed above.
14For example, Lewis and Neiman (2002, Chapter 5) present the results of other
statistical analyses of local residential growth- management policies and local antigrowth
politics. HCD (2001) presents an analysis of local development fees and charges that
affect the cost of new housing.
54
0 1 0
local government activity or HCD reviews that pins down what leads to
noncompliance. Moreover, over a long time horizon, the direction of
causality may be muddled. Cities that have a noncompliant housing
element may attract less rental housing or fail to qualify for affordable .
housing grants from the federal or state governments. These factors, in
turn, may make it even mote difficult for the community to attain
compliance in the next revision period.
Conclusion
Among the reasons that observers have suggested for widespread
noncompliance with the housing element law are the exclusionary
sentiments of uppet - status communities, the lack of vacant land available
for housing in many cities, the lack of resources of the local government
to address the issue, and the antigrowth politics or antihousing policies of
some towns. In the regions that have been subject to HCD reviews for
updated housing elements over the past three years, a simple comparison
of compliant and noncompliant cities indicates that few of these
arguments receive dear -cut support. Noncompliant cities have older
housing and smaller populations but are actually lower in population
density than compliant cities. Most other community characteristics do
not dearly distinguish the two sets of cities. In the remainder of the
state, where cities have had about a decade to teach compliance since
their last housing element revisions were due, few cities are
noncompliant. The simple comparison indicates that the few laggard
communities do tend to be wealthier and less ethnically diverse than
compliant cities.
A mote sophisticated analysis can isolate which local characteristics
ate most important for noncompliance. Such a model teveals that
among the factors that best predicted noncompliance were an older
housing stock, mote restrictive growth policies and review ptocesses, a
smallet. population, and a Bay Area, Genital Valley, or Inland Empire
location. The most important predictor of all, however, was simply the
time elapsed since the most recent housing element revision was due.
Time may not cure all ills, but it does allow many jurisdictions additional
opportunities to prepare a housing element that is acceptable to HCD
reviewers. .
55
0
Thus, there is at least some evidence that several factors that have
been posited to playa role in noncompliance -- -local land -use and
building characteristics, the size of the city, and municipal growth
politics —do have some influence. In the current round of updates,
evidence was strong that cities' residential growth controls and review
processes held a particularly important role for the HCD reviews. By
contrast, local characteristics that some have suspected play a major
role----such as local homeownership rates, revenue bases, or population
densities —do not show a clear link to noncompliance. In short, it is
difficult to argue that any simple set of characteristics is determinative of
how likely cities are to attain compliance.
56
4. Does Housing Element
Compliance Mean That More
Housing Is Produced?
Do local governments that comply with the housing element law, by
adequately planning for future residential needs, actually enable more
housing to be built in California? Moreover, does compliance help
predict the types of housing built, such as the mix between single- family
and multifamily development? If the answer to these questions is no, the
resources that state and local government currently devote to housing
element compliance and review might be better directed to other policy
efforts to improve housing production.
Using data from the 1990s, this chapter offers a statistical analysis of
whether a city's compliance status in the early part of the decade helps to
predict the percentage increase in the city's housing stock by 2000.
Although data are not available to specifically study the development of
affordable units, one can examine the growth of multifamily housing and
the share of housing developed that is multifamily. The analyses control
for a variety of other city characteristics that might influence the level
and type of housing growth. The quantitative estimates are reported in
Appendix B; this chapter reports the results for a general audience.
Housing Element Compliance, Circa 1991
To make this analysis possible, the Department of Housing and
Community Development made available its housing element
compliance report for cities and counties as of December 31, 1991. This
.period was chosen because jurisdictions in the most populous parts of the
state —the Southern California, San Diego, and Bay Area regions —had
completed their second round of housing element updates by that point
and had received HCD's judgment as to whether their plans were
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compliant. Moreover, the 1991 date is proximate in time, to the 1990
Census, allowing use of data from that year as a "starting point."
Accordingly, this analysis focuses only on communities in these three
regions, where most of the state's population resides and which tend to
have the most controversies and difficulties regarding housing element
compliance.
Compliance rates for cities in 1991 were poor, as Figure 4.1
illustrates. Only one - quarter of cities statewide were in compliance, with
59 percent being declared either noncompliant by HCD or overdue or
`obsolete" because of the lack of any updated housing element in time
for the deadline. In the wake of these low compliance rates, HCD and
the attorney general's office mounted a sustained effort to encourage
more cities and counties to meet their legal responsibilities. This
campaign was fairly successful, as the percentage of communities
attaining compliance grew substantially.
Ho
elem
Under rev
by HCt
16%
Housing element
25%
it of compliance
42%
Figure 4.1- Cities' Housing Element Compliance Status, as of
December 31, 1991
58
There tends to be some persistence in compliance status. There is a
moderate, statistically significant degree of correlation (r = .31) between
noncompliance in 1991 and noncompliance a decade later, in 2001. In
other words, although many cities attained compliance status as the
1996s wore on, it remained the case that noncompliance after the second
round of revisions was a fairly good predictor of noncompliance after the
third round.
Measuring Housing Growth Rates Using Census
Data
The first analysis in this chapter draws upon U.S. Census data to
examine the rate of growth in housing units between 1990 and 2000.
Because communities of different sixes are likely to have very different
amounts of housing built, I examine the percentage increase in the
number of housing units in each city between 1990 and 2000. Table 4.1
provides summary statistics regarding this measure of housing increase.
The percentage increase in housing units will serve as a dependent
variable (that is, the phenomenon that I seek to explain) in a quantitative
analysis. Because some very small cities experienced extreme rates of
housing change, the analysis is limited to communities with at least
2,500 residents, to avoid skewing the results.
The main issue of interest is whether a connection exists between a
city's compliance status as of 1991 and its rate of housing growth
Table 4.1
Percentage Growth Rates for Housing in Cities in the
San Diego, Southern California, and San Francisco
Bay Area Regions, 19904000
Average increase in housing units 11.4
Median increase In housing units 4.9
Standard deviation 18.3
Largest rate of increase 196.3 (B=tW00d)
Late= race of decease —9.7 (La Habra Heights)
SOURCE: Author calculations are from die 2000 Census and the
1990 Census.
NOTE: Data focus only on cities of 2,500 or greater population.
59
•
through the 1990s. At first blush, there is surprisingly little evidence of
such a link, as Table 4.2 reports. A simple comparison shows that the
average noncompliant city in the relevant regions (San Diego, Southern
California, and San Francisco Bay. Area) actually increased its housing
stock about 1.5 percent more than the average compliant city. The
median noncompliant city, however, saw about 1.7.,percent fewer new
housing units constructed than the median compliant city (which
indicates that some noncompliant cities with very high rates of housing
development pushed up the mean for that group). In neither calculation
are the differences, statistically significant, however.
Although interesting, one cannot draw confident conclusions from
this simple comparison of compliant and noncompliant cities. Housing
growth rates could be expected to differ among communities for many
other reasons —for example, the location of the city, its attractiveness to
new residents and developers, and its demographic characteristics.
Table 4.2
Comparison of Housing Development in Compliant and Noncompliant
Cities in the San Diego, Southern California, and San Francisco
Bay Area Regions
%Increase in Honing Units, 1990 -1000
Housing Element Status as of 1991 Average City Median City No. of Cities
Compliant 9.0 5.7 48
Noncomolianr '10.5 4.0 173
NOTES: Data are limited to dries of 2,500 or greater population. Differences
benvicen compliant and noncompliant cities are statistically insignificant, using either
a t -test for difkience of means, or a Kruskal- Wallis rest for different of medians.
Controlling for Other Factors
To account for the wide variety of factors that might affect housing
growth rates across cities, it is possible to estimate a multivariate
regression model that controls for such characteristics while assessing
whether housing element compliance status has its own independent
relationship with housing growth. In such an analysis, it is important
that all of the relevant city characteristics be included in the analysis,
since bias can result from improperly omitted variables.
60
A useful way to account for some of an area's housing market
.characteristics that may not be easy to measure is to include a control for
the county in which each city is located.. That is the approach taken in
this analysis.' Thus, such factors as the county's population growth
trend, its location in the path of urban growth, county government
growth policies, or other unobserved countywide factors are taken into
account.
At the city level, several local characteristics are included to inform
the predictions about housing growth. I focus on measures of city
characteristics as of 1990, as these ate "baseline" factors that could be
expected to influence housing development trends in the 1990s. The
variables included in.the analysis are described below.
1. Housinggrvwth in the prior decade Communities in urban regions
tend to persist in their tendencies to differentiate themselves (Farley,
1964; Neiman, 1980). One can expect that cities with rapid rates of
increase in housing in the 1980s would continue to grow quickly,
although perhaps not at an equal rate, through the 1990s. Cities
that grew slowly or shrank would likely continue to stagnate. This
variable is measured as the percentage increase in total housing units
in the city between 1980 and 1990.
2. Population size:. It is reasonable to expect that large cities grow at a
different rate than small cities, all else equal. The natural logarithm
of the city population is used because of the highly skewed
distribution of city populations. In addition, the ten communities
of less than 2,500 population in these tegions, and the two cities of
greater than a million population, are dropped because the unique
characteristics of very large and very small cities tended to hinder the
analysis.
3. Population demiry: Higher densities indicate that the city probably
has less vacant land to accommodate additional growth and that
new growth may be mote likely to cause spillovers such as traffic of
'Specifically, w=cy -level fixed effects are included in the model for all cities except
San Francisco, which is the only city In its county.
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parking problems. Density is measured as the logarithm of persons
pet square mile, again because of the skewed distribution.
4. Urbanization status: Cities in urbanized areas may find it mote
challenging to accommodate new housing because of a lack of
vacant land of conflicts with existing residents and businesses. This
variable is an indicator, set to equal 1 in cities in Census- identified
urbanized areas as of 1990 and 0 otherwise.
5. Age of the housing stock: Cities with an older housing stock may be
mote settled communities that have experienced less recent pressure
for new development. The variable is the number of years elapsed
since the median housing unit in the city was built, as of 1990.
6. Household income: Cities with high- income households are likely to
have high land costs, and developers may tend to propose mostly
single - family luxury homes. Wealthier communities may also have
mote political resources to mobilize in opposition to new
development. The variable is the median household income in the
1990 Census (measured for the 1989 calendar year).
7. Seniorcitizenr. Communities with high proportions of seniors may
experience less ptessure for new home construction. A large share of
seniors implies that there are smaller households and probably less
new household formation. The variable is the percentage of petsons
age 65 and over in the city population in 1990.
8. Technical workers: As an engine of California's growth, high -tech
industties might be expected to play an especially important tole in
housing demand. However, aerospace, also a high -tech industry,
experienced major declines in employment, so the effects on
housing increases may not be straightforward. The variable
measures the percentage of the local (working) population employed
in technical occupations, as classified in the 1990 Census.
9. job -to- worker ratio: Cities that are 'job centers," with a high ratio of
local employment to resident workers, might be expected to attract
mote interest from homebuyets and developers. This variable,
detived from the Census Transportation Planning Package, is the
natural logarithm of the ratio of jobs within the city to workers
living in the city, as of 1990.
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10. Commuting time:. Cities in which many workers must commute
long distances are apt to be less attractive and may experience less
pressure for home construction, all else equal. The variable
measures the average one -way commute time, in minutes, of
workers living in the city in 1990. .
11. Distance to urban centers: Isolated municipalities located far from
urban job centers ate likely to be less attractive to potential residents
and housing developers. A computerized mapping program was
used to calculate the straight -line distance between the city in
question and the nearest of a set of traditional urban central cities in
California.2
12. Housing element noncompliance: The major variable of interest is
whether the city was found to be compliant with the housing
element statute, according to HCD, in December 1991. This is an
indicator variable, with compliant cities set to equal 0 and those
found noncompliant, those overdue, or those having "obsolete"
housing elements set to equal 1.3
Numerous other city characteristics were tested in other versions of
the model predicting housing development. These included such
measures as the housing vacancy rate in 1990, the percentage of housing
units not connected to sewers, the percentage of recreational housing
units, controls for central city or rural status, the average number of
persons per household, and the percentage of various ethnic groups in
the community. Each was dropped from the analysis when it proved
persistently unrelated to housing growth rates. The effects of compliance
2The central cities chosen to represent historic metropolitan centers were
Bakersfield, Chico, Fresno, 1,m Angeles, Merced, Modesto, Monterey, Oakland,
Redding, Sacramento, San Diego, San Francisco, San Jose, Santa Barbara, Santa Crud
Stockton, and Visalia. The mapping program calculated distance between each city in
California and the ne matone of these central cities, using mapping cootdimates (where a
unit of I is equivalent to appruximarely 60 miles).
31 also estimated a differenr model in which cities char had overdue or "obsolete"
housing elements were represented by a separate indicator variable from those that were
overtly found noncompliant. This estimation strategy was based on the theory that being
lare with a housing element.may not demonstrate as serious a problem as being overtly
noncompliant However, no substantive differences in results were found from those
reported here, with one exception to be discussed below.
63
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status on housing development are not influenced by the inclusion or -
exclusion of these variables.'
Results of the Analysis of Total Housing Unit.
Growth
Detailed results of the model, which accounts for 64 percent of the
variation in housing growth across cities, are listed in Appendix Table
B.1. For our main purposes in this chapter, however, it is easy to
summarize the findings: There is no evidence ofa detectable relationship
between housing element compliance and the percentage increase in housing
actors these cities during the 1990s. If noncompliance were a good
predictor of slow housing growth, all else equal, one would expect to find
a negative, statistically significant relationship between noncompliant
housing elements and the percentage housing increase. However, the
analysis shows a positive, insignificant relationship. Thus, for all the
potential merits and benefits of housing element compliance, one must
look to other factors to explain why.some cities experience rapid housing
development and other cities experience little.
The analysis suggests that certain demographic characteristics,
measures of a community's position in the urban hierarchy, and the
physical capacity,of the city to accommodate new buildings are better
able to predict housing growth.. For example, cities with higher
population densities as of 1990 added housing at a slower rate in the
decade that followed, as did those with older housing stock at the start of
the period. These results indicate that growth in the 1990s moved away
from older, denser communities. At the same time, cities with larger
populations, those that were far away from urban centers, and those with
long commute times also experienced slower rates of housing growth.
Cities with higher -income populations grew more slowly, perhaps
'Cart was also taken to choose measures of community demographics that were not
excessively intercotrelated. The median household income of the city, included here, is a
good proxy for the overall status of the community., Other socioeconomic variables, such
as the unemployment rate, poverty rue, or homeownership rate, are closely associated
with median income, but these variables do not show as much association with housing
growth. Again, the (non)significance of housing dement compliance is not affected by
the exdusion of these variables.
64
because land was more costly or zoned for lower densities. Perhaps
surprisingly, the percentage of technical workers among local resident
workers was negatively related to the rate of housing increase, quite
possibly a reflection of the severe declines that would occur in aerospace
and related industries in the early 1990s.
The best predictor of housing growth, however, was the city's rate of
housing increase in the previous decade. Within any given county, cities
that grew quickly in the 1980s were the ones that tended to add to the
housing stack quickly in the 1990s.5 After accounting for these trends,
housing element compliance as of 1991 provides no additional
information about cities' rates of housing growth.
Analysis of Multifamily Development Using
Construction Industry Data
It is useful to consult other data sources as a check for the above
analysis, which uses Census data on the number of housing units in each
city. I therefore gathered data from the Construction Industry Research
Board (CIRB) on the number of housing units constructed in each city
in the period from 1991 through 2000. This data source has the
additional benefit of being broken down by whether the units built were
single - family or multifamily.
In most cities in the San Diego, Southern California, and Bay Area
regions, single - family units clearly predominated. In fact, in an average
city in these three regions, only 27 percent of the new units were
multifamily.6 Not surprisingly, therefore, there is a very strong
correlation (r = 0.90) between our Census measure of housing unit
increase and the CIRB data on increases resulting from single- family
construction? When I ran the same regression model as was used for the
5Thc county-level fixed effects were also significantly related to housing growth
rata, indicating the regional character of housing markers.
61f data from all cities in these regions are aggregated, the share of units that were
multifamily among all new units was somewhat higher, at 33 percent (28 percent in cities
statewide). This is because cities that had the highest numerical increases in housing
units tended also to have higher shares of multifamily development.
7SpeacsUy, the variable used wu the ratio of newly wnstmcted single- family units
in the city to all housing units existing in that city as of 1990.
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Census measure in the CIRB single- family increase data, results were
thus largely similar. Again, no relationship between housing element
compliance and housing development was apparent
As a fair -share approach to housing, the housing element statute is
specifically concerned with increasing the production of affordable
housing. Unfortunately, comparable information for all cities about the
production of affordable units appears to be nonexistent. However, the
CIRB data allow us to examine multifamily housing production.
Multifamily housing includes apartments and condominiums, the types
of housing generally most relevant for those at the lower to middle levels
of the income distribution, particularly in the coastal metropolitan areas
where housing is very expensive. Moreover, analysts have been
particularly concerned that multifamily production has plummeted in
California since the 1980s. "Whereas multifamily housing accounted for
between 45 and 49 percent of total housing construction during the
1960s, 1970s, and 1980s, last decade it fell to 25 percent of the already
depressed total" (Myers and Park, 2002, p. 2).
Thus, the second regression analysis featured in Appendix B
examines the determinants of increases in multifamily housing. The
dependent variable is the ratio of newly constructed multifamily units
(from 1991 through 2000) to all units existing in the city in 1990.8 The
results of this analysis again show that housing element noncompliance as
of 1991 is not a significant predictor of multifamily development, once
other relevant factors are held constant. Although at least the
relationship is negative (indicating that noncompliance is linked to a
smaller multifamily increase), it is near zero and not statistically
significant. Rather, demographic and land -use characteristics of the
community are better predictors of multifamily development. Cities
$Some readers may wonder why the measure is based on the ratio of new
multifamily units to aQ existing units, rather than existing mufnfumdy units. The reason
is straightforward. Cities with a very tiny number of existing multifamily units (say, rwo)
could add a negligible number of new multifamily units over the decade (say, another
two). If one uses the existing number of multifamily units as the denominator, then such
cities arc unfairly credited with a huge proportionate increase (in this example, 100
percent). The ratio used in the analysis better characterizes the role of multifamily
development in augmenting each city's housing stock.
66
with more senior citizens as of 1990 tended to experience slower rates of
multifamily housing development. Cities with more jobs per worker saw
more rapid multifamily development.
The Mix of New Housing Development
Finally, it is possible that housing element compliance could affect
the mix of housing developed — multifamily versus single - family — despire
its lack of effects on the rare of increase. The third regression analysis
shown in Appendix B examines this issue; the dependent variable in this
case is simply the percentage than ofnew housing units that were
multifamily units, according to the Cl RB. data.
Here there is a significant association of compliance with the
outcome in question. The results show clearly that cities with
noncompliant housing elements develop new housing that is weighted
more toward single- family units. In fact, holding constant for all the
other city characteristics treated in the model, a noncompliant housing
element is linked to an 8 percentage point lower proportion of
multifamily housing among the new units. This reduction is
considerable, given that the average city saw multifamily units account
for only 27 percent of new housing. The only other variables that are
clearly related to this proportion are the median income of the city, its
job-to-worker ratio, and its rare of housing growth in the prior decade.
Cities with lower median incomes and more jobs per worker saw a higher
percentage of multifamily development. Cities with slow growth rates in
the 1980s also experienced a share of multifamily development that was
higher than in those that grew quickly (although the relationship was
substantively small).
Thus, cities with compliant housing elements in 1991 experienced a
more balanced mix of new housing development in the 1990s. In a
further rest, I examined whether cities that had overdue or obsolete
housing elements in 1991 performed as poorly in their housing mix as
those judged noncompliant by HCD reviewers. The results indicated
that it was the cities overtly deemed noncompliant, rather than the cities
67
•
with overdue or obsolete plans, that had the heavier proportion of single -
family housing rather than multifamily.9
Reconciling These Findings
What does it mean to say that housing element compliance is not
linked to the rate of multifamily development but is linked to the
proportion of housing developed that is multifamily? One
interpretation, consistent with the fait -share approach of housing
element policy, is that thorough housing planning diversifies the mix of
new residential development in the community. Units that developers
might have preferred to build as detached homes lot that neighborhood
groups might have preferred to see become detached homes) are
constructed as apartments or condos instead, quite possibly because of an
emphasis in the housing element on finding sufficient sites for
multifamily development. The results imply that cities with compliant
housing elements, although they may not be willing or able to
accommodate mote total housing units, are willing to substitute
multifamily (more affordable) units for a share of single- family (market -
rate) units. The 8 percentage point estimate of that substitution effect in
this analysis has a similar order of magnitude to the 10 or 15 percent
affotdable housing set -aside that many cities requite of some new
developments through local inclusionaty housing policies.
Conclusion
Much attention and resources are given to housing elements, in part
because there is an assumption that noncompliant cities are those that
artificially slow the rate of increase to the housing stock Compliance
status from a decade ago, however, was not a good predictor of the rate
of subsequent new housing development in cities in the San Diego,
Southern California, and Bay Area tegions. Rather, housing market and
9Specifimlly, the regression analysis included two indicator variables: one for cities
found noncompliant and one for overdue or obsolete cities. Results shoved that all else
equal, noncompliant cities experienced about an 8.7 percentage point lower share of
multifamily development than compliant cities. Those with overdue or obsolete housing
elements had a smaller negative (-2.5 percentage points) but statistically insignificant
relationship with the percentage of new housing that was multifamily.
68
demographic factors outweigh compliance status in contributing to
variations in.growth rates. The pace of neither single - family not
multifamily development is associated with compliance status.
Does this nonfinding imply that the resources devoted to the
preparation of housing elements are a wasted effort? Not necessarily. It
is probably a healthy exercise for local governments to plan for growth
and to assess where various types of new housing may be accommodated
in the community. It is possible that the very requitement that all local
governments prepare housing elements means that more attention is paid
to housing needs and mote housing is built statewide, regardless of
whether individual communities ate found to be compliant or
noncompliant. One cannot be sure, then, that there would not be
deleterious effects on housing production if the requitement were
eliminated.
Moreover, this analysis does not attempt to sort out the relationship
of compliance status to production of affordable units, which receive
particular emphasis in housing element law. Indeed, when examining
the proportion of all units constructed from 1991 through 2000 that
were in multifamily developments —most likely to be affordable —we do
find that multifamily construction tends to displace a significant portion
of single - family construction in cities with compliant housing elements.
Nevertheless, it is quite striking that one can detect no measurable
relationship between compliance and overall housing production. Cities
that made efforts to comply with the housing element statute may have
played host to a wider mix of new housing but did not accommodate
mote units overall, at least in the 1990s.10 California policyntakets
concerned about housing production, and local constraints on housing,
may wish to think about other potential policy approaches. The next
chapter describes some alternatives.
10A reader of an earlier draft of this report commenced that compliance tutus at the
end of the 1990s might better predict housing production razes in that decade. The idea
is that many cities that were noncompliant in 1991 eventually gained compliance, and
also that municipal policies measured by HCD in the 2000s were likely in effect and
influencing housing development in the 1990s. However, when 1 substituted March
2001 housing element compliance status in these regressions for 1991 compliance status,
It showed insignificant effects on all measures of housing development in the 1990s
69
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5, Can States Ensure Adequate
Local Provision for Housing
Development?
Given the turmoil over housing element law in California and its
apparent lack of success ingenerating more housing; a discussion of
alternative policy approaches seems warranted. This chapter does not
recommend any single policy change but is intended to help illustrate the.
array of options available to state policymakers. It begins by discussing
changes that have been suggested by groups in recent years. Sometimes,
however, a broader perspective on a policy problem is useful, and
therefore the second part of the chapter examines the experiences of three
other states in crafting policies that attempt to shift local planning and
land -use activities in a more housing - friendly direction. The successes
and failures of these states hold potential lessons for California.
Alternative Approaches within the Context of the
Current Housing Element Law
Discussions of problems with the current housing element law
among California policymakers and housing advocates have led to a
number of proposals in recent years to change tactics. What most of
these reform proposals have in common, however, is that they take the
housing element approach —state review of local plans —more or less as a
given.
More Penalties and Prescriptions for Local Governments
One approach sees the problem as a lack of serious consequences for
local governments that fail to meet the requirements of existing housing
element law. Myers and Park (2002, p. 5) argue that "the state needs to
place greater weight on localities' production of total housing
71
• •,
construction, including a share of multifamily housing, and that
emphasis needs to be backed with stronger teeth than at present." Thus,
for example, it has been suggested (as in Senate Bill 910) that financial
penalties be levied against noncompliant local governments, or that their
eligibility for certain state or federal grants be rescinded. The attorney
general could bring legal action against communities that persistently fail
to comply.
Another approach of this type seeks to prescribe local land -use
regulation, under the assumption that localities, left to their own devices,
will fail to provide housing opportunity. Thus, the state could impose
"inclusionary zoning" requirements on all communities, under which all
housing developments of a certain size must reserve a share of units for
low- or moderate -income households. Other suggestions have included
requiting minimum zoning densities in certain areas (such as that near
public transit), or a blanket exemption of affotdable housing projects
from local zoning or growth controls (Senate Committee on Local
Government, 1993, p. 112).
Innovative approaches to ptomoting affotdable housing need not be
state- ptesctibed, however. Some cities, for example, have developed an
"affatdable housing overlay" as part of their zoning ordinance that allows
a developer to claim a density bonus if his or her proposed project meets
affordability standards.
Self - Certification Based on Performance
Self - certification is the idea of granting authority to local
governments to approve their own housing plans without state oversight
if they meet certain criteria involving demonstrated housing production.
This approach was popular among local government representatives in
the mid -1990s (Senate Committee on Housing and Land Use, 1995).
As Mark Pisano, longtime executive director of the Southern California
Association of Governments, argued in 1993:
Local governments should be allowed to self - certify their housing element
reforms. Self-oertification should be linked to a performance review at the
subregional or regional level. The right of a third party to request a review
should be also allowed. Any conflicts arising from the review should be
resolved through a subregional mediation process, thereby ensuring a timely
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tesolution of disputes. if mediation is unsuccessful, [HCDI tsmuld review the
housing element performance under question (Senate Committee on Local
Govetnment, 1993, p. 42).
Similarly, Janet McBride, a senior planner for ABAG, testified,
"Communities which show a record of success in providing their 'fair
share' of housing should be exempt from outside scrutiny of their
housing element" (Senate Committee on Local Government, 1993,.p.
49).
As a result of these discussions, the legislature passed a pilot program,
AB 1714, in 1995. That law allowed communities in the San Diego
region to self - certify their housing elements if they had met their fair -
share housing needs in the period since the previous housing element
revision. According to HCD's housing element status reports, only a few
cities in San Diego have availed themselves of this option to date. The
pilot program will sunset in 2009 unless the legislature acts to conimue
it.
Some have cautioned that basing self- certification on strict measures
of prior performance may make such an approach somewhat inflexible.
During an economic recession of the type the state experienced in the
early 1990s, for example, housing production slumped because,of the
economy, and few jurisdictions would have been able to meet even 75
percent of their assigned housing goals. Alternative suggestions for
measuring performance include assessing whether the jurisdiction has
issued a share of permits above the regional average or has approved a
certain share (say, 90 percent) of proposed housing projects that are
consistent with the local general plan (Senate Committee on Housing
and Land Use, 1995).
Subregional Allocations and Joint Housing Elements
A number of commentators have suggested that jurisdictions in a
subregion should decide collectively how to divide up that area's housing
allocations. This approach has been advocated specifically for smaller
counties in large mettopofitan, regions, and some have suggested setting
up joint - powers authorities as an intergovernmental arrangement to
adopt joint housing elements and suballocate fair shares. The aim would
then be.forjobs /housing balance within each subregion — probably a
73
more tractable approach than seeking balance within each jurisdiction
(Senate Committee on Housing and Land Use, 1995, pp. 64-65,79).
Subregional allocation has already occurred in some cases; for example, in
the decision by SCAG to allow Orange County governments to
formulate allocations within that county.
It is quite possible, however, that making subregional allocation
more widespread would not solve the political problem of how to divide
an unwanted responsibility among jurisdictions. Rather, it may merely
create a new political arena to haggle over the issue at a smaller
geographic level. A provision allowing for greater allocation to
subregions was insetted into SB 910, the housing element reform bill, in
2002.
Encouraging Transfers of Housing Allocutions among
Jurisdictions
A number of local government representatives have sought the ability
for localities to "trade" or transfer their allocations with each other,
presumably in exchange for payments or other considerations. The
argument is that housing may be accommodated more easily or
economically in some jurisdictions than others, and allowing transfers
would enable more flexibility for localities in meeting their housing
obligations. For example, a small suburb with limited,.expensive vacant
land could transfer its allocation to a nearby community with more or
cheaper vacant land or an active housing redevelopment policy, thereby
possibly allowing a greater toral number of units to be developed.
Section 65584.5 of the government code, passed in 1994, enables
transfers among jurisdictions under certain circumstances. This
legislation followed two years of debate over the topic, during which
various stakeholder groups agreed on a compromise. Nevertheless, the
provisions for transfer are quite strict and constrained. The entities
engaged in the transfer must both have compliant housing elements, and
the "donor" entity must have met at least 15 percent of its housing goals.
The transfer agreement must include plans to construct the units within
three years (or else the units revert to the donor community), and the
COG must review it. The percentage of a community's housing goals to
74
be transferred may not exceed the petcentage of its goal that the
community has already satisfied (Cuttin, 2000, p. 11).
At issue is whether transfers violate the spirit of fait -share housing
policy, which aims at an equitable distribution of responsibilities across
jurisdictions. Opponents, including some housing advocate groups,
argue that wealthy communities that eschew low -cost housing will be
allowed to buy their way out of their responsibilities to their region if
widespread transfers are permitted.
Another Approach: Rewards for Performance
Enticing communities to accommodate housing would not be such
an uphill battle if they perceived that doing so would be in their financial
self - interest. Thus, creating an element of the state fiscal system that
rewards local governments for the addition of housing units, particularly
affordable units, would be an approach likely to result in less conflict and
mote cooperation.
The existing Jobs /Housing Balance Incentive Program, passed in
2000, has elements of such a "rewards for performance" approach. Until
it was defunded when the state budget went into deficit, the program
authorized devoting $100 million in grants to local governments that
demonstrate increased issuance of building permits, if they have adopted
housing elements that are in compliance with state law. The housing
bond passed by voters in November 2002 earmarks $100 million to
continue funding this program. Senate Bill 423, enacted in late 2002,
provides some specific instructions on how the funds ate to be allocated.
To provide cettainty for local governments, a continuing rather than
one -time source of funds for such an approach may be necessary. For
example, a regional fund could be established for such purposes as
transportation improvements and open space ptotection, with funds
awarded to cities and counties that clearly demonstrate that they are
taking actions (beyond planning) to accommodate their fait share of
units, particularly affordable units. The fund could be financed through
a regional impact fee on commercial development in job - heavy, housing -
poor areas (Lewis, 2002).
Others have suggested recalibrating the local fiscal system so that
localities would be rewarded directly (i.e., by formula) for increases in
75
population or housing units. For example, there have been discussions of
distributing a portion of local sales tax revenues to cities and counties on
the basis of local populations, rather than the "point of sale" of retail
transactions. AB 680 (Steinberg), which failed to emerge from. the state
legislature in 2002, took such an approach, Of course, such a wide -
ranging reform of local finance raises many concerns and conflicts
unrelated to housing policy, and thus far such efforts have not succeeded.
It is worth noting that state subventions of Vehicle License Fee
(VLF) revenues are awarded to localities through a population -based
formula. Local officials have expressed worries that the state's current
budget crisis may threaten the existence of the so- called VLF backfill,
which attempts to ensure that cuts to the VLF in the late 1990s do not
result in decreased allocations to localities. Loss of all or some VLF
revenues would further reduce local incentives to provide new housing.
Relevant Experiences from Other States
Other states, including some with equally strong traditions of home
nde as California, have also wrestled with issues of inadequate housing
production,. mandated fair shares for jurisdictions, and state oversight of
local planning. But the approaches taken differ widely from California's,
and their experiences may be worth considering. This section briefly
sketches the approaches taken in New Jersey, Massachusetts, and .
Oregon.1
New Jersey
Along with California, New Jersey likely has the most sustained
experience with policies that involve state oversight of local housing
policy? At fast glance, New Jersey's policy posture toward fair -share
!The focus here is only on contemporary policies Char have some analogies ro the
California situarion. A comprehensive ezaminarion would need to include the now -
defunct New York Stare Urban Development Corporarion (UDC), a powerful state
agency with the power m override local zoning to build subsidized housing projects in the
law 1960s and early 1970s. Irs zoning override power was larer stripped by char state's
legislature. and the UDC ultimarely became insolvenr in the mid- 1970s.
2This discussion of the New Jersey ezpttience is based upon Calavita a A (1997),
Haar (1996), Hughes and VanDomn (1990), Listokin (1976), and Weinstein (1993), as
well as the websire of the Council on Affordable Housing.
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housing production appears similar to California's. The state's 566
municipalities are required to prepare housing elements, are allocated an
obligation of low- and moderate- income housing needs, and a state
enrity—in this case a Council on Affordable Housing (COAH), created
by the legislature in 1985 — reviews local plans. At a more basic level,
however, there are serious differences between the two states' approaches.
Most important, New Jersey's requirement of a fair -share
responsibility on localities to provide a reasonable amount of housing
within their region was mandated by judicial acrion —the famous Mount
Laurel decisions of 1975 and 1983. The state's supreme court justices
drew upon state constitutional language to assert that municipalities had
an obligation to admit affordable housing, thus providing more legal
ammunition than California's statutory housing element requirement.
The court's motivation was largely concern about racial and
socioeconomic exclusion in the suburbs, given New Jersey's stark
distinctions between older, largely African American central cities and
more affluent suburbs. An initially reluctant state legislature followed up
on the court's prodding by passing a Fair Housing Act in 1985 that
created COAH to oversee the process, thereby removing most of the
direct judicial supervision of contested municipal housing policies.
In terms of the law's actual implementation, the major salient
differences between New Jersey's approach and California's include the
following.
1. The fair -share allocation process is state - directed, with no COG
involvement, and pertains only to low- and moderate -income
housing needs, not "above moderate" needs. These affordability
brackets have stricter definitions in New Jersey, however, with
the low -income category basically equivalent to California's very-
low -income bracket, and the moderate category equivalent to
California's low -income grouping.
2. Municipalities are not obligated to have COAH review their
housing elements. However, localities that choose to approach
COAH and have their housing plans certified as adequate are .
shielded from lawsuits by builders for a six-year period.
77
3. Municipalities can meet part of their affordable housing
obligations by rehabilitating existing units.. Congregate housing
facilities for the disabled can also be counted toward the
obligation.
4. The major mechanism for the construction of affordable units is
through the so- called "builder's remedy," under which.a
developer offers to construct affordable units that go some way
toward meeting a community's obligations, in exchange for
certain local concessions. These projects ordinarily are 80
percent market rate units and 20 percent low - and moderate -
income units. The concession given to the developer is typically
a density bonus allowing construction of more market -rate units
than would otherwise be allowed under local zoning, and in
some cases local government offsets of the cost of the affordable
units : Communities that have not met their affordable housing
obligations and have not had their housing elements certified by
COAH are often approached by for -profit builders proposing
such an arrangement, which can be ordered by a court or agreed
to by the municipality in a settlement. To avoid such suits,
many local governments adopt an "inclusionary housing"
ordinance, providing for a routine affordability set -aside of 20
percent of units in any development of a threshold size. During
a building boom in the late 1980s, an estimated 15 percent of all
developments in New Jersey included such an affordability set -
aside (Calavita et al., 1997, p. 127).
5. As a quasijudicial agency, "COAH has adopted a massive body
of regulations governing nearly every element or program ...
through which a New jersey locality might seek to comply with
the Mount Laurel mandate" (Calavita et al., 1997, p. 119).
6. Municipalities in New jersey are allowed to "trade" up to half,
their obligated number of affordable units to another
jurisdiction that agrees to build the units (or, more commonly,
to renovate dilapidated units), under so- called Regional
Contribution Agreements. The "sending" jurisdiction, generally
a suburb, must pay the "receiving" jurisdiction, usually an older
78
central city, at least $20,000 per unit, although higher amounts
can be negotiated. Some view this aspect of the New Jersey
system as a "sellout of the original aim of distributing housing
opportunity widely. But other analysts note that the trading
system has the merit of effectively serving as a tax on those
communities that choose to avoid their affordable housing
obligations (Hughes and VanDoren, 1990). Thus, the entire
community that "benefits" from such exclusion must pay for it;
contrast this to the mechanism of the builder's remedy, in which
the costs of new affordable units may be cross - subsidized by the
market -rate units in the same project, meaning that new entrants
to a community effectively pay for the city's past exclusionary
behavior. The trading system also has fiscal benefits for
distressed central cities.
Although a large amount of subsidized housing has been produced
under the Mount Laurel system in New Jersey, it has been faulted on a
number of counts. Most notably, the emphasis in most builder's remedy
developments has been on purchase housing, not rentals, meaning that
the lowest - income households often cannot take advantage of the set -
asides because they cannot afford a down payment or do not have good
credit. Thus, studies have indicated that a typical occupant of a
subsidized suburban Mount Laurel unit is a young white family that
already lived in suburbia and simply has not yet achieved its full earnings
potential.
On the other hand, a major advantage of the New Jersey approach is
its standardized procedure for meeting local fair -share housing goals—a
process that after more than 15 years of operation is becoming routine.
The builders remedy approach uses the profit motive of developers to
accelerate implementation and to develop far more.housing units than
would have otherwise been allowed under local zoning.
Massachusetts
The first strong fair -share policy approach to housing development
anywhere in the country was probably Massachusetts's Comprehensive
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Permit Law.3 The law was enacted in 1969 and aimed at opening up the
suburbs to affordable housing. It has often been viewed as an attack
upon "snob zoning." The Massachusetts law is typically referred to as
"4011" in that state because of its chapter location in the state legal code. .
Its main strategy is to radically simplify the review process for
developers seeking to build residential projects in which at least 25
percent of the units have long -term affordability restrictions. Developers
proposing such projects can apply to the municipality for
"comprehensive" building permits, through a local Zoning Board of
Appeals. If successful, the comprehensive permit issued by the zoning
board cuts through local building restrictions and overrides land -use
regulations that are inconsistent with providing affordable housing; the
zoning board can effectively overturn local zoning in some cases. This
enables the builder to use one relatively streamlined process to receive an
entitlement to build the project. This local zoning board is charged with
bringing to the table all the relevant municipal departments and agencies
that have an interest in the housing development for comments and
concerns (such as the planning board, fire department, etc.), and with
conducting a series of public hearings to air community concerns. The
hearings must begin within 30 days of receipt of the developer's
application for a comprehensive permit, and the board must decide
whether to award the permit within 40 days after the public hearings
conclude.
Although state environmental and other statutes still apply, local
authorities must use the principle of meeting local needs in any denial of
conditions that they impose upon the project (such as density or height
testtictions). The community is not allowed to impose conditions that
tender the proposed project uneconomical to the builder. Furthermore,
developers whose projects ate denied by this local process have the option
of appealing to a statewide board, the Housing Appeals Committee
(HAC), which can overturn the local decision and order that the project
3This discussion of the Massachusetts process draws upon numerous recent articles
in the Boston Gate by housing reporter Anthony Flint, materials fmm the websim of the
Massachusetts Department of Housing and Community Development and the Citizens
Housing and Planning Association, as well as early perspectives on die law by I.ismkin
(1976).
W
be permitted. A developer can also appeal a local decision if conditions
imposed upon the project threaten its economic feasibility. However,
the developer may only appeal if the locality in which they wish to build
has failed to meet certain housing affordability thresholds :l Ordinarily,
the RAC first encourages the applicant and the municipality to engage in
a mediation process to see if issues can be resolved without a HAC
review.
In the initial period after passage of the 40B law, progress was very
slow, as there were court challenges to the law and frequent proposals in
the legislature to weaken it. By 1972, there had been only 35
applications to local authorities for comprehensive permits, and only a
few appeals to the state HAC. After six years of operation, the law had
resulted in the construction of only about 1,100 new housing units,
although more than 3,000 others were planned or pending (Ustokin
1976s pp. 100 -103). More recently, there has been a pronounced
increase in the number of projects proposed under the law, with about .
5,000 units produced between 1990 and 1997. Between 1970 and
2001, about 25,000 units in 170 communities had been approved
(Massachusetts DHCD, 2001). According to Flint (2002), "Because
many towns have put the brakes on all growth and buildable land is
scarce, developers say going the 40 -B route — generally large, dense
projects that are 25 percent affordable under state guidelines —is the only
way to do business these days." However, a disproportionate number of
the recent 40B applications have been projects for senior citizens only,
which local officials often look upon more favorably.
The law is also limited in that it does not apply to many commercial
developers. To have the fight to seek a comprehensive permit, the
developer must be either a nonprofit or a Gmited4ividend company, and
the project must initially receive approval from a federal or state
subsidized housing program. In recent years, the Federal Home Loan
Bank of Boston has provided substantial subsidies to developers in the
program, which has helped boost construction. Although 40B
4The city is exempted from an appeal if at least 10 pa r of in housing units are in
projects subsidized for low- and moderaro-income residents, or if such affordable units
constiture at least 1.5 percent of the 6tyls land area zoned for residential, industrial, and
commercial uses. Few jurisdictions in Massachusetts mat these arena.
81
applications have become more numerous lately, the law has not
succeeded in easing that state's.vety serious housing shortage. The law
has contributed to a much wider geographic distribution of subsidized
housing, with the proportion of subsidized units outside large cities in
Massachusetts rising from 31 percent in 1972 to 63 percent in 1997
(Citizens Housing and Planning Association, 2001). A state task force
there recently proposed more radical state oversight of local planning,
such as overturning local caps on growth (Flint, 2001).
Given the shortage of housing subsidies in contemporary California
(Little Hoover Commission, 2002), adapting the current Massachusetts
statutory provisions to California is unlikely to bear immediate results in
terms of housing production. The 40B law reflects its origins as a civil-
rights-oriented provision rather than a measure to increase housing
production across the board. However, if a California version were to
relax the requirement that the affordable units be subsidized by a state or
federal source, and perhaps reduce the required share of affordable units
to 15 or 20 percent of the project total, it would open comprehensive
permitting to a far wider array of projects. Many developers in urban
and suburban California already have built projects in which 15 percent
or so of the units are affordable and cross- subsidized, in effect, by the
market -rate units. Such approaches are mandated by some cities'
inclusionary housing requirements. In California, the right of appeal to a
statewide board (or perhaps more appropriately, a regional board) could
be allowed if the local government has a noncompliant housing element.
The Portland Region .
Oregon is well -known for undertaking state -level review of local
housing plans.5 In 1973, at the governor's urging, the legislature passed
a law requiring that local governments prepare comprehensive plans and
establishing a state - level, quasijudicial Land Conservation and
Development Commission (LCDC) to review them. One of the initial
14 statewide goals developed by LCDC concerned housing opportunity.
The LCDC goal required that, as in California, localities inventory
5'Me Portland disc ion draws upon Hammond (2002), Knaap and Ndaon (1994
Chapter 3), Lewis (1996, pp. 179 -182), and Toulan (1994).
82
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residential land and develop plans to encourage the building of an
adequate number and mix of housing units for households in various
income brackets (Knaap and Nelson, 1992, p. 77).
In LCDC's initial reviews of local housing plans, every jurisdiction
of more than 5,000 population in the Portland metropolitan area except
the central city itself saw its housing elements rejected because they
provided for an insufficient range of housing types and prices. The area's
regional government, the Metropolitan Service District (since renamed
Metro) attempted to resolve this state -local conflict by enacting an .
Areawide Housing Opportunity Plan—a fair -share allocation plan that
distributed federal housing subsidies in relation to local needs. The plan
withered when federal housing funds dried up in the early 1980s, but
LCDC adopted the broad outlines of the Metro plan as its own
regulation, later codified into state law by the legislature.
As adopted, the so -called Metropolitan Housing Rule applies only to
the Portland region, which contains about half the state's population.
The rule prescribes local land -use mixing, requiring that local
government plans within Metro's boundaries allow for at least 50 percent
of new residential units to be multifamily or attached housing units. It
sets out a "10 -8-6" formula, which requires that the largest municipalities
in the region zone for an average of at least ten dwelling units per
buildable acre, whereas almost all the remaining suburbs must zone for at
least eight units per acre. Five very small cities were given.a quota of six
units per acre.
Despite local government objections to the new rule, strong support
at the state and regional level along with support from an unusual
alliance of environmentalists and homebuilders led to the
implementation of the plan in virtually every Pordand-area community.
The authority of LCDC to fiscally sanction uncooperative localities no .
doubt helped speed up the process. The amount of land zoned for
multifamily housing increased fourfold to more than one- quarter of net
buildable acres. By 1991, vacant residential land in the Portland region
allowed for the development of 54 percent multifamily units, and some
rapidly growing suburbs, such as Beaverton, heavily exceeded the 50
perceni minimum.
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During the boom of the 1990s, apartments proliferated in the
suburbs of Portland, which helped lead to the recent finding that
households below the poverty line in that metropolitan area became less
concentrated in the central city and more likely to locate in suburbia by
the time of the 2000 Census. Although neighborhood objections to
multifamily housing continue in the Portland area, according to one
homebuildet, "nobody has been able to keep [multifamily housing)
totally out. The reason is because of the [metropolitan housing) rule.
Without that, 1 am sure it would have followed the same pattern the test
of the country did" (quoted in Hammond, 2002).
However, no systematic study of the rule has attempted to determine
the degree to which it assists in housing affordability or socioeconomic
mixing. Another aspect of Oregon's statewide planning system, the
requitement for urban growth boundaries around each metropolitan
area, directs growth pressures inward and Probably helps account for the
sharp spikes in densities in the Portland region. After all, the increased
zoning densities under the Metropolitan Housing Rule do not require
that builders propose projects at such densities. In a different tegulatory
regime, developers might have found it mote profitable to build lower -
density housing in the existing suburbs while also rapidly expanding low -
density housing beyond the urban fringe.
Conclusion
There have been numerous proposals to reform housing element law
in California, involving penalties for noncompliance, mote self -
certification, or transfers of allocations across communities. Most
suggested reforms, however, would proceed within the current approach:
state review of local housing plans. A mote fundamental shift would be
to directly reward effective performance by ditecting funds to localities
on the basis of the numbet and mix of new units developed.
The experiences of Massachusetts, New Jersey, and Oregon all offer'
different expetiences regarding fait -share planning and state review of
local housing policy. Even if none of these approaches is completely
appropriate to the California context, some combination of the .
84
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innovations attempted elsewhere — comprehensive permitting, state or
regional boards of review or appeals, minimum zoning densities, or the
builder's remedy —may be worthy of consideration in California.
85
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6. Conclusion
Many factors appear to complicate efforts by local governments to
reach housing compliance. In some cases, local policies restricting
growth or an older housing stock hinder compliance, although it also
appears that communities that have remained persistently noncompliant
tend to be high - status cities. When it comes to sorting out the effects of
noncompliance, however, there is, no solid evidence that noncompliant
cities experience a slower rate of housing development than compliant
cities, holding all else constant. Thus, given the substantial controversy
over the existing housing element law, it is worth considering alternative
policy approaches, some of which were discussed in Chapter 5.
An important question sitting astride the whole issue is whether the
various fundamental values that California policymakers hold dear —
increased housing production, an equitable distribution bf housing
responsibility across communities, special attention to the housing needs
of low -income families, local autonomy and home rule, environmental
protection, and more —can all be accommodated within housing element
law, or whether there are tensions among them. A secondary question is
whether the current approach —state review of local planning for future
housing needs —is the most effective use of resources to further these
goals.
Goals in Conflict
Although other states have experimented with different approaches
to state review of local housing plans, California has continued with its
own approach to housing elements. As in the other states, California's
housing element requirement has often gone against the grain of local
policymaking because of its regionalist orientation: It asks cities to plan
for the needs of the wider region, not just the needs of current city
residents. Indeed, the philosophy behind fair -share housing plans is that
the local "police power" to regulate land use should be directed toward
87
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the general welfare of the region and not just the general welfare of the
specific locality (Listokin, 1976, p. 19).
Equitable Distribution or Sheer Production?
Beyond this conflict over the local tole, there are mote fundamental
value conflicts in housing element policy in California. It took shape in
the 1970s in an eta in which there was increasing concern with civil
tights and the ability of minorities and low -income families to have an
opportunity to live in suburbia, not just in innet -city or rural enclaves.
Most of the fait -share plans developed by regions or states in this time
period had such equal- opportunity goals. Housing element policy was
also concerned with improving the local planning ptocess —a major
policy goal for the state through much of the post -Wotld War II era.
In mote recent decades, Califomia.policymakers have also become
very concerned with overall residential production and the need to
increase housing supplies, particularly but not exclusively at the low- and
moderate- income levels. Thus, polieymakets have increasingly turned to
the housing element process as a tool to ensure adequate housing
production throughout the state. But it is not clear that a fait -share
allocation and planning process is necessarily the best tool for this job. In
the contemporary period, many of the most racially and
socioeconomically diverse jurisdictions in California are suburbs
(Sandoval, Johnson, and Tafoya, 2002), although there remain
numerous pockets of privilege in which low- income and minority
populations ate largely absent. In many cases, a greater number of
affordable units could feasibly be produced in areas where there ate
already sizeable low- income populations than in the wealthier
jurisdictions, where land prices ate likely to be much higher.
Thus, the goal of maximizing housing production can conflict with
the goal of allocating a region's needs as fair shares to each municipality.
A scheme to allow widespread trading of housing allocations to other
jurisdictions, as in NewJcney, could reduce this conflict, but many
housing advocates and policymakers have little sympathy for allowing.
high- status communities to escape what is seen as their responsibilities to
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the broader society.' What the conflict implies, perhaps, is that different
tools are necessary to enhance overall production from the tools necessary
to encourage equal housing opportunity across jurisdictions.
A Mandate in a Vacuum?
Then, too, there are the conflicts between the housing element law's
single- minded pursuit of increased housing and other state laws that tend
to raise barriers for housing production. As already noted, open -space
and coastal protections, environmental impact review, congestion
management, and farmland preservation are also all encouraged under
California law and are not always easily reconciled with housing element
provisions that seek to identify many land sites for future housing
construction. The state's new law requiring that local governments
identify a 20 -yeaf supply of water for new housing developments before
approving them also sends a different signal from housing element
policy. These potential conflicts with environmental or growth -
management goals were recognized even by an early observer of fair -share
housing policies:
Fait share basically accepts growth, it merely warns to direct it in a rational and
equitable manner. The nongrowth or phased - growth philosophy questions
whether growth, especially rapid growth, should be mlented. This approach is
therefore in contradiction with the rcgional allocation philosophy (Listokin,
1976, p. 137).
Devil in the Details
Those involved in the debate over housing policy often note how
long and highly detailed the housing element statute is. Indeed, when
the relevant legal code is downloaded from the Internet and printed, it
stretches out over 27 pages. Highly detailed statutes are often evidence
of widespread disagreement on.a given policy, as waves of "reform° occur
1Nm Jersey's Regional Contribution Agreements "shifted the rationale of the
Mount Laurel dourine away from the broad goal of ending geographic segregation
surrounding inner -city minorities and toward the raw provision of low -income
housing.... (Homeowners in the sending jutisdictions) are amenable, it turns out, to
paying a form of ransom, through taxes, that preserves local control of new entrants while
allowing lower-income housing to be built elsewhere" (Haar, 1996, p. 114).
89
in which opposing interests seek to have their concerns addressed and
protections preserved in law. What has resulted, in the case of the
.housing element statute, is an unwieldy law that is often difficult fot
outside observers (including this researcher) to comprehend in its entirety
or details.
In the 33 years since the housing element statute was enacted, the
search for an adequate supply of housing in California has become only
mote elusive. It may be a ripe occasion for policymakers and affected
interests to regroup and reconsider the goals and approaches of state
housing law, seeking an approach that is more wotkable, transparent, and
straightforward, with measurable barometers of success or failure. In so
doing, policymakets will need to resolve whether the mayor goal of such a
law is a sheet increase in residential construction or an equitable
distribution of affotdable housing. Using a fait -shate planning approach
as a tool to encourage overall housing production may place an
unrealistic burden on a relatively fragile, ptocess- otiented policy.
90
• •
Appendix A
Multivariate Analyses of Housing
Element Noncompliance
This appendix reports the results of logistic regression analysis of city
characteristics that might be expected to influence whether a city
complies with housing element law. Chapter 3 discusses the general
logic behind the analysis, and Table 3.3 describes the variables and data
sources. The dependent variable is a dichotomous measure of
noncompliance, equal to 1 if the city is noncompliant and 0 if
compliant. If the city's housing element draft is overdue, it is legally
noncompliant and is treated as such. Cities under review by HCD at the
time of the September 25, 2002, compliance report are dropped from the
analysis. The table reports "odds ratios," which represent the change in
odds that an average city will be noncompliant, given a one -unit increase
in the variable of interest. Odds ratios above 1.0 indicate an increased.
probability, and those below 1.0 a reduced probability, of
noncompliance.
Table A.1 provides results of a main model and an alternative model.
The only difference is that the alternative model includes a measure of
the degree to which the city planning director feels that the policies
affecting residential growth rates have resulted from popular pressure by
neighborhoods or voter initiatives (using a four -point scale). However,
quite a few planners responding to the survey answered "don't know" or
skipped this question, which results in the loss of 41 cities from the
analysis. Thus, I am more confident in, the results of the main model.
Table A.2 provides summary statistics for the variables in the models.
91
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Table A.2
Summary Statistics for Continuous Variables in the Preceding Models
Standard Minimum Maximum
v rie61r Mtn Deviation Value Value
%of residents whim non - Hispanic
49.5
23.8
1.0
. 91.2
% recreational housing units
1.4
4.1
0
34.9
Population density (natural log)
8.1
0.9
3:7
10.1
Age of median housing unit (years to 1990)
30.2
8.7
11
59
Supply of land constrains growth (five -
point scale)
3.5
1.4
1
5
Population (natural log)
10.4
1.2
6.1
14.0
Per capita own -source revenues (named
log)
6.1
0.6
4.7
8.4
City's % share of local property tax
revenues
13.2
7.4
0
47.6
Lack of planning staff wnsmains growth
(five -point scale)
2.2
1.1
1
5
.
Review of residential proposals gating
longer (four -point scale)
1.9
0.7
1
4
No. of overt growth restrictions (of possible
seven)
0.7
1.0
0
5
Slow - growth policies resulting from
initiatives. neighborhoods (four -point
scale)
1.6
0.8
1
4
No. of months since housing element
revision due .
35.7
40.3
3
117
NOTE: Values are only for cities included in model in Table A.1
93
0 0
Appendix B
Multivariate Analyses of the Rate
and Mix of New Housing Production
in the 1990s
This appendix tepons the results of ordinary least - squares regression
analyses of city characteristics that might influence the rate of growth in
housing units between 1990 and 2000 and the mix between single - family
and multifamily units. The general logic behind the analysis is discussed
in Chapter 4, where the section entitled "Controlling fot Other Factors"
describes the independent variables employed, virtually all of which are
derived from Census sources. An exception is the measure of housing
element noncompliance, derived from an HCD compliance status report
dated December 31, 1991. The dependent variable in the first regression
(Table B.1) is the percentage change in the number of housing units in
the city between the 1990 and 2000 Censuses. The dependent variable
in the second tgression (Table B.2) is the ratio of newly constructed
multifamily units (1991 -2000) to total existing units (in 1990). The
dependent variable in the third regression (Table B.3) is the percentage
share of newly built units that are multifamily units. The source of the
data ognew construction of housing units is the Construction Industry.
Research Board.
The analysis is limited to cities in the regions covered by the San
Diego Association of Governments, the Southern California Association
of Governments, and the Association of Bay Area Governments. These
tgions had completed their second round of housing element revisions
by 1991. Finally, Table B.4 provides summary statistics foi the variables
in the models.
95
Table B.1
Regression Model of Housing Unit Growth in the.199os, with
County Fixed Effects
No. of cities 202
Prob. > F 0.000
Adiusted R squared 0.64
NOTES: Dependent variable is the percentage increase in total housing units
(1990 - 2000). Analysis is of cities in the San Diego Association of Governments,
Southern California Association of Governments, and Association of Bay Area
Govemments and is limited to cities that were incorporated and had a population
of at least 2,500 in 1990. Robust standard errors are calculated. County fixed
effects are used for all counties except San Francisco and are statistically significant
(F = 4.421, p =.000).
96
%Growth in Housing
Units
Independent Variable
Cod..
t -Value
P >Itl
Housing growth in prior decade
0.174
5.64
0.000
Population size (log)
—1.412
—1.73
0.085
Population density (log)
—3.216
—1.68
0.096
Urbanized
4.943
—0.28
0.779
Age of housing stock
—0.214
—2.16
0.032
Median household income
—0.000
—1.88
0.062.
% of residents age 65+
—0.243
—1.07
0.285
% of workers in technical occupations
—1.079
—1.85
0.065
Joblworker ratio (log)
0.561
0.42
0.678
Average commure time
—0.618
—2.08
0.039
Distance from urban center
—8.927
—2.97
0.003
Noncompliant housing element
1.473
1.03
0.303
Bo
83.958
3.24
0.001
No. of cities 202
Prob. > F 0.000
Adiusted R squared 0.64
NOTES: Dependent variable is the percentage increase in total housing units
(1990 - 2000). Analysis is of cities in the San Diego Association of Governments,
Southern California Association of Governments, and Association of Bay Area
Govemments and is limited to cities that were incorporated and had a population
of at least 2,500 in 1990. Robust standard errors are calculated. County fixed
effects are used for all counties except San Francisco and are statistically significant
(F = 4.421, p =.000).
96
Table B.2
Regression Model of Multifamily Development Growth in the 1990s,
with County Fixed Effects .
No. of cries 200
Prob. > F 0.005
Adiusted R- souared 0.23
NOTES: Dependent variable is the ratio of newly constructed multifamily
units (1991 -2000) to the rural number of housing units in 1990. Analysis is of
cities in the San Diego Association of Governments, Southern California Association
of Governments, and Association of Bay Area Governments and is limited to cities
that were incorporated and had a population of at Icast 2,500 in 1990. Robust
standard errors are calculated. County fixed effects are used for all counties except
San Francisco and me statistically significant (F = 1.779, p - .041).
97
Ratio of New Multifamily
Units to Existing
Units
Independent Variable
Coef.
t -Value
P>jtj
Housing growth in prior decade
-0.000
-0.17
0.868
Population size (log)
-0.005
-0.89
0.374
Population density (log)
-0.008
-0.78
0.435
Urbanized
0.009
0.59
0.558
Age of housing stock
-0.001
-1.26
0.210
Median household income
-0.000
-1.25
0.213
• of residents age 65+
-0.001
-2.09
0.038
• of workers in technical occupations
-0.001
-0.69
0.494
Job/worker ratio (log)
0.021
145
0.015
Average commute time
-0.000
-0.11
0.911
Distance from urban center
-0.010
-0.70
0.485
Noncompliant housing dement
-0.006
" -1.44
0.151
80
0.211
1.62
0,106
No. of cries 200
Prob. > F 0.005
Adiusted R- souared 0.23
NOTES: Dependent variable is the ratio of newly constructed multifamily
units (1991 -2000) to the rural number of housing units in 1990. Analysis is of
cities in the San Diego Association of Governments, Southern California Association
of Governments, and Association of Bay Area Governments and is limited to cities
that were incorporated and had a population of at Icast 2,500 in 1990. Robust
standard errors are calculated. County fixed effects are used for all counties except
San Francisco and me statistically significant (F = 1.779, p - .041).
97
0
0
Table B.3
Regression Model of Share of Housing Development That Is Multifamily,
with County Fixed Effects
% of New Housing
Units
That Are Multifamily
Independent Variable
Coef.
r -Value
P>111
Housing growth in prior decade
-0.083
-2.30
0.023
Population sin (log)
1.650
0.70
0.484
- Population density (log)
4.804
1.26
0.210
Urbanized
-4.259
4.62.
0.535
Age of housing stock
-0.085
-0.30
0.766
Median household income
-0.000
-2.96
0.004
% of residents age 65+
-0.229
-0.72
0.474
%of workers in technical occupations
0.288
0.17
0.868
Joblworker rado(log)
12.379
3.09
0.002
Average commure time
-0.545
-1.19
0.235
Distance from urban center
0.658
0.07
0.946
Noncompliant housing element
-8.106
-2.18
0.031
B0
19.049
0.44 1
0.660
No. of tides . 200
Prot. > F 0.000
Adjusted R- squared 0.36
NOTES: Dependent variable is the percentage share of housing units
developed (1991 -2000) that are multifamily units. Analysis is of cries in the San
Diego Association of Governments, Southern California Association of
Governments, and Association of Bay Am Governments and is limited to dries
that were incorporated and had a popuWon of at least 2,500 in 1990. Robust
standard errors are calculated. County fixed effects are used for all counties except
San Francisco and are statistically significant (F - 1.759, p = .044).
98
0 0
Table B.4
Summary Statistics for Continuous Variables in the Preceding Models
NOTES: Values are only for cities included in the model in Tables B.1, B.2, and
B.3. Commute time is measured in minutes, distance from urban center is measured in
mapping units.
PA
Standard
Minimum Maximum
. Mean
Deviation
Value
Value
Dependent Variables
% housing growth in 1990s
9.6
13.7
-9.7
73.8
Ratio of new multifamily units to total
0.02
0.03
0
0.28 -
1990 units
% of new housing units that are
29.0
24.7
0
98.4
multifamily
lndependent Variables
% housing growth in prior decade
25.3
39.7
-7.0
389.8
Population size (log)
10.4
1.1
7.9
13.6
Population density (log)
8.3
0.8
5.2
10.1
.Age of housing stock (to 1990)
24.7
0.7
4
51
Median household income
43,900
18,489
1$635
130,734
% of residents age. 65+
11.6
6.2
3.5
47.9
% of workers in technical occupations
3.7
1.3
0
7.9
Joblworker ratio (log)
-0.1
. 0.5
-1.8
1.8
Average commute time
24.8
4.1
14.1
40.5
Distance from urban center
0.4
0.4
0
3.2
NOTES: Values are only for cities included in the model in Tables B.1, B.2, and
B.3. Commute time is measured in minutes, distance from urban center is measured in
mapping units.
PA
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•
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•
About the Author
PAUL G. LEWIS
n
U
Paul G. Lewis is a research fellow and director of the Governance
and Public Finance program at the Public Policy Institute of California.
He has authored or co- authored numerous reports, journal articles, and
other publications on local government structure, local sales taxes, urban
development, transportation policy, regional governance, and local voter
turnout. He has also presented his findings on these topics to a variety of
governmental bodies and civic organizations. He holds an A.B. in
political science from Indiana University and an M.A. and Ph.D. in
politics from Princeton
107
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Related PPIC Publications.
Who Pays for Development Fees and Exactions?
Marla Dresch and Steven M. Sheffrin
Cities Under Pressure: Local Growth Controls and Residential Development
Policy
Paul G. Lewis and Max Neiman
Local Economic Development in Southern Cakforma's Suburbs: 1990-
1997
Max Neiman, Gregory Andranovich, and Kenneth Fernandez
Building California} Future: Current Conditions in Infrastructure
Planning Budgeting and Financing
Michael Neuman and Jan Whittington
Homelarness in California
John M. Quigley, Steven Raphael, and Eugene Smolensky
PPIC publications may be ordered by phone or from out website
(800) 232=5343 [mainland U.S.]
(415) 291 -4400 [Canada, Hawaii, overseas]
www.ppic.org
109
r
, . ■li � � iiv
A
E
September 10, 2007
Mr. Greg Ramirez, Senior Planner
City of Newport Beach
3300 Newport Boulevard
Newport Beach, CA 92658 -8915
Dear Mr. Ramirez:
RE: Review of the City of Newport Beach's Revised Housing Element
Thank you for submitting revisions to Newport Beach's housing element. Pursuant to
Government Code Section 65585(b), the Department is required to review draft housing
elements and report the findings to the locality. A series of telephone conversations with
you facilitated the review.
The revised adopted element addresses some of the findings described in the
Departments November 2, 2006 review. For example, the draft revisions indicate that
Measure °S° (Section 423 of the City Charter) will not impact the development of the sites
identified in the inventory (Table H -30 and Appendix H5) due to the increased densities/
intensities established as part of the recent comprehensive general plan update
(approved by the voters in November of 2006). Newport Beach should be diligent in
monitoring the potential impacts of Charter Section 423 as identified in Housing
Program 2.3.1. Should monitoring reveal that residential projects are being subjected to
the voter approval process, the City must take the appropriate steps (in a timely manner)
to remove governmental constraints and provide adequate sites. The revisions also
indicate the City is continuing to work on a comprehensive zoning ordinance update,
which when completed, will establish zoning designations consistent with the new land -
use designations established as part of the general plan update.
However, according to the revised element, the John Wayne Airport and Newport Center
areas offer the greatest residential development potential during the remainder of the
planning period, through a variety of development strategies, including mixed -use, infill
and reuse. Therefore, as described in the Departments previous review, and discussed
with you, the element must demonstrate these strategies are realistic and viable such that
they can accommodate Newport Beach's remaining share of the regional housing need,
particularly for lower- income households.
0
Mr. Greg Ramirez, Senior Planner
Page 2
0
Include an inventory of land suitable for residential development, including vacant sites
and sites having the potential for redevelopment, and an analysis of the relationship of
zoning and public facilities and services to these sites (Section 65583(a)(3)). The
inventory of land suitable for residential development shall be used to identify sites that
can be developed for housing within the planning period (Section 65583.2).
Given that most of the sites listed in Appendix H5 are developed with existing uses; the
element must be expanded to describe the condition and age of existing development
and describe the realistic potential for these uses to be discontinued and replaced with
housing this planning period. The expanded analysis should describe the City's
experience in facilitating redevelopment and mixed -use development of non-.
residentially zoned sites, including current market conditions, and redevelopment
trends. Please refer to the Department's November 6, 2006 review.
Also, as discussed with you and described in the Department prior review, given the
City's strong reliance on a combination of mixed -use and redevelopment to
accommodate its remaining housing need, Policy H.2.3 must be complemented with
strong programs and implementation actions to facilitate such development (i.e.,
specific commitment to provide regulatory and/or financial incentives and promote the
development of underutilized and/or mixed -use sites). Under a separate cover,
examples of program implementation actions from other jurisdictions that have or are
currently relying on mixed use and recycling development strategies will be sent to you.
The elements analysis of the identified sites in the John Wayne Airport and. Newport
Centers areas must be expanded to include the following:
• A description of the impact of parcel size on development feasibility, capacity, and
affordability.
• An analysis that demonstrates mixed -use development or stand alone residential
uses are realistic and viable development strategies for those sites identified in
Appendix H5.
• An indication whether redevelopment, recycling, or intensification of a site would
require lot consolidation to allow additional residential development.
+ A clarification that the noise and height restrictions set forth in the JWA Airport .
Environs Land Use Plan (AELUP) (page 5-35) will not impact the projected
residential buildout capacities described in Table H30 for the identified sites listed in
Appendix H5.
2. Analyze potential and actual governmental constraints upon the maintenance,
improvement, and development of housing for all income levels. The analysis shall also
demonstrate local efforts to remove governmental constraints that hinder the locality
from meeting its share of the regional housing need in accordance with Section 65584
(Section 65583(a)(4)).
0
Mr. Greg Ramirez, Senior Planner
Page 3
E
Land -Use Controls_. According to the draft revisions, City staff is currently working
on a comprehensive zoning ordinance update to address inconsistencies between
recently established general plan land use designations and outdated zoning
categories. As indicated in the element, the City Council adopted a resolution (as an
interim measure) that allows projects to be "reviewed" in spite of this general
planizoning inconsistency (page 5-66). However, the element must be expanded to
demonstrate that in addition to "reviewing" residential projects, they can actually
receive final approval during the time period which the zoning ordinance is being
updated. In addition, the element should also include a timeline for completing the
zoning ordinance update. Finally, as indicated in the Departments prior review the
element must describe and analyze how implementation of allowed density, building
setbacks, height provisions, parking; and open space requirements of all newly
established zoning categories, particularly the Planned Community (PC) zone, will
facilitate and encourage housing for all income groups. Should the requisite
analysis determine the City's new land -use controls will impede residential
development, the element must include a program to mitigate and/or remove any
identified constraints.
The Department is committed to assisting the City of Newport Beach in bringing its housing
element into compliance and would be pleased to provide any additional assistance
necessary, including another meeting in Newport Beach. If you have any questions, or wish
to schedule a visit, please contact Don Thomas, of our staff, at (916) 445 -5854.
Sincerely,
EXHIBIT 7
0 0
NATURAL RESOURCES DEFENSE COUNCIL, et al., v. RECLAMATION BOARD OF THE
RESOURCES AGENCY OF THE STATE OF CALIFORNIA, et al., Case No. 06 CS 01228:
The following shall constitute the Court's tentative ruling on the petition for writ of
mandate, set for hearing in Department 19 on Friday, April 27, 2007. The tentative ruling shall
become the final ruling of the Court unless a party wishing to be heard so advises the clerk of
this Department no later than 4:00 p.m. on the court day preceding the hearing, and further
advises the clerk that such party has notified the other side of its intention to appear.
In the event that a hearing is requested, oral argument shall be limited to no more than 20
minutes per side.
I. Introduction
In this action, petitioners challenge respondent Reclamation Board's approval of two
permits (specifically, Permits Nos. 18018 -1 and 18018 -2), referred to in this action as the "fill
and encroachment permits ". Both permits are related to the development-of a large area of land,
known as the River Islands at Lathrop project, located on the Stewart Tract in Lathrop,
California. The project area lies within the region known as the Sacramento -San Joaquin Delta.
The so- called "fill permit" (Permit No. 18018 -1), a copy of which is in the administrative
record lodged with the Court (A.R. pages 13405 - 13412), allowed the permittees (the real parties
in interest) to place fill between pre - existing federal project levees on the outer edge of the
Stewart Tract and an interior private levee recently constructed by the developers, with the goal
of constructing a so- called "super levee" approximately 300 feet in width.
The so- called "encroachment permit" (Permit No. 18018 -2), a copy of which is not in the
administrative record, apparently because it has been approved but not yet actually issued,
defines flood control easements over a portion of the new super levee and (by excluding much of
the top of the levee from the easements) permits the developers to place structures on top of
another portion of the levee.
Petitioners' claims in this action are two -fold. Primarily, they allege that respondent
Reclamation Board violated the California Environmental Quality Act ( "CEQA') in various
respects when it approved the permits. In addition, they allege that the Board violated applicable
state regulations requiring easements on and adjacent to levees when it approved the
encroachment permit.
Real parties in interest made a motion to dismiss the petition on the ground that it was
moot because work on the super levee had been completed, and on the further ground that
petitioner's real litigation objective, which was to block all development of the Stewart Tract,
could not be achieved through any relief that could be granted in this action. On April 13, 2007,
the Court denied the motion to dismiss. Some of the arguments advanced in support of the
motion to dismiss have been repeated in real parties' opposition to the petition. Since the Court
addressed those arguments in ruling on the motion to dismiss, those arguments will not be
addressed here.
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II. Preliminaa Evidentiary Issue— Motion to Strike
Respondent has made a motion to strike certain documents from the administrative
record and to preclude petitioners from citing to or relying upon such documents in their
argument. The documents are found at pages 22317, 22320, 22321, 22327 and 22328 of the
administrative record, and appear to be copies of a -mail, communications between respondent's
counsel and various members of respondent's staff.
Respondent's motion is denied on the ground that respondent has not demonstrated that
it made any reasonable effort to ensure that no privileged materials were disclosed in the
administrative record, and did not move promptly to secure the return of the documents once they
were included in the record. (See, State Compensation Insurance Fund v. WPS, Inc. (1999) 70
Cal. App. 0 644, 653.) The record in this case was lodged on January 19, 2007. On February
23, 2007, petitioners filed their opening brief, in which they cited to and relied upon some of the
documents that are the subject of this motion. Nevertheless, respondent did not promptly meet
and confer with counsel for petitioners on this issue, and did not file a motion regarding the
documents until March 23, 2007, with hearing set for the same day as the hearing on the merits
of the petition, April 27, 2007. Moreover, as petitioners point out, there are other documents in
the record that could legitimately be considered to be privileged and confidential, but which are
not included in this motion, and respondent itself has cited at least one document in its brief
(A.R. l 1215) that might be considered confidential and privileged on the same basis as the
documents at. issue here. The present motion, therefore appears to have been brought for tactical
reasons rather than to redress a real, inadvertent waiver of privilege.
III. Summary of Petitioners' Claims
The petition for writ of mandate states six separate claims, expressed in the petition as
separate causes of action. The first four allege violations of CEQA and may be summarized as
follows:
1. First Cause of Action: Respondent violated CEQA by failing to assume a lead agency
role in its approval of the fill and encroachment permits, and by failing to prepare a full
subsequent or supplemental Environmental Lnpact Report.
2. Second Cause of Action: Respondent violated CEQA by failing to make findings on
the approval of the fill and encroachment permits until after. it had reached a decision on the
project.
3. Third Cause of Action: Respondent violated CEQA by failing to make required
findings for each of the significant environmental impacts of the fill and encroachment permits.
4. Fourth Cause of Action: Respondent violated CEQA by failing to comply with the
CEQA regulatory Guidelines, which are applicable to respondent's actions through its own
regulations.
The remaining two causes of action allege that respondent's approval of the
encroachment permit violated its own regulations relating to levees. Those two causes of action
may be summarized as follows:
5. Fifth Cause of Action: Respondent violated regulations prohibiting construction of
new structures within an adopted plan of flood control on a levee section or within ten feet of a
levee "toe ", as defined in the regulations.
6. Sixth Cause of Action: Respondent violated regulations requiring the dedication of a
flood control easement upon, over and across the property to be occupied by proposed flood
control works, including the area within the proposed floodway, the levee section, and the area
ten feet in width adjacent to the landward levee toe.
IV. Standard of Review
Because a hearing was required before respondent before approval of the permits, the
petition for writ of mandate is brought under Code of Civil Procedure section 1094.5. A lengthy
administrative record has been lodged with the Court. In general, the standard of review
applicable to this matter is whether respondent abused its discretion, either by failing to proceed
in the manner required by law, by failing to support its decision with adequate findings, or
because the findings are not supported by substantial evidence in the record. (See, Save San
Francisco Bay Association v. San Francisco Bay Conservation and Development Commission
(1992) 10 Cal. App. 0 908, 919.) The precise application of this general standard of review to
petitioner's claims varies somewhat from one claim to another; thus, the Court will describe the
applicable standard of review in its discussion of each claim.
V. Discussion
A. Petitioners' CEQA Claims
L First Cause of Action
Petitioners' first cause of action alleges that respondent violated CEQA by failing to
assume a lead agency role in its approval of the fill and encroachment permits, and by failing to
prepare a full subsequent or supplemental Environmental Impact Report before approving the
permits. Petitioners' claim has two aspects. First, they allege that further environmental review
was required because the project had changed by virtue of the omission of a key element of the
flood control and protection plan. Second, they allege that further review was required to take
into account new information regarding the impact of climate change on the region in which the
project is located.
In order to evaluate this claim, it is necessary to place respondent's actions in the context
of the entire River Islands at Lathrop project. The levees which were the subject of respondent's
actions were merely one part of a much larger project to develop the Stewart Tract into a
residential, commercial and recreation center. The project has been in the works in one form or
another since at least 1989, but took its current form in 2002.
At all times relevant to this action, the laboring oar in the environmental review of the
project under CEQA has been assigned to the City of Lathrop, which acted as the so- called "lead
agency" under CEQA. In this role, the City prepared a full EIR for all of the aspects of the
project in its original form in 1995 -1996, and another full EIR in 2003 after the project changed
into its current form. The latter document was entitled a "Supplemental EIR" (referred to herein
as "SEIR "); a copy of the SEIR is in the record in this action. (See, A.R. 7296 - 9230.) The
adequacy of those documents under CEQA is not at issue in this action. As an agency that had
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discretionary approval power over one aspect of the larger project, namely, the super levees,
respondent acted as a so- called "responsible agency" under CEQA. (See, 14 C.C.R. section
15381.)
Given the location of the project, flood control and protection have been a major concern,
from the outset. Accordingly, the developers proposed a flood protection system that featured, as
relevant to this case, a system of levees that included the so- called "super levees" that are at issue
here, as well as a system of improvements on an undeveloped flood plain and water channel area
adjacent to the project known as "Paradise Cut ". The SEIR analyzed the environmental impacts
of constructing this flood protection system. The SEIR recognized that constructing levees
around the developed area of the project had the potential to increase flood stage elevations in
downstream areas during severe flood events. This was because the developed area occasionally
had flooded during severe events in the past, but no longer would; thus, the waters would have to
go elsewhere, potentially putting more pressure on downstream levees. The SEIR concluded,
however, that the actual impact would be less than significant, largely because the improvements,
to the Paradise Cut area, which would create additional flood storage capacity and increase flood
flows, would be constructed in tandem with the removal of the developed area from the flood
plain. (See, for example, the following sections in the SEIR: Project Description, Section 3.4.2, .
regarding Flood Protection elements of the project, A.R. 7676 -7686; discussion of Impact 4.8 -m,
Hydrology and Water Quality — Surrounding Flood Stage Elevations, A.R. 7968 -7972; and
discussion of Cumulative Impacts, A.R. 8271.)
After the certification of the SEM the developers of the River Island project proposed to
change the sequence of construction of the flood protection system. Specifically, the developers
proposed to first build a portion of the levee system around the initial area to be developed, thus
removing the developed area from the flood plain, and construct the Paradise Cut improvements
later. Apparently, this change was felt to be necessary because the levee system only required
approval by a stake agency (respondent Board), while the Paradise Cut improvements had to be
approved by a federal agency (the U.S. Army Corps of Engineers), and the federal process was
likely to take substantially more time than the state process. The developers therefore presented
a "phasing" proposal to the City.
Still acting as the lead agency for the project, the City determined that this change made
the project sufficiently different that it should perform a review of its environmental effects
under CEQA. The City therefore prepared and certified a document entitled "Addendum to
Subsequent Environmental Impact Report ", dated July 1, 2005. (A.R. 7114 - 7179.) The
Addendum to the SEIR analyzed the flood - related effects of removing the developed area of the
project from the flood plain without building the Paradise Cut improvements at the same time
and concluded that the impacts that had been considered to be less than significant in the SEIR
would remain less than significant under the new phasing. This conclusion was based on a .
number of factors, including the fact that only a portion of a "cross levee" projected to be built on
the Stewart Tract would be constructed in phase 1, that only a portion of the area eventually to be
developed was being taken out of the flood plain in phase 1, and that soil being removed from the
phase 2 area in order to construct the levees for phase 1 would create extra flood storage capacity
in the interim period. (See, A.R. 7152- 7153.)
Following the certification of the Addendum to the SEM the developers proceeded to
seek permission from respondent to build the super levees through the permits at issue here.
During the course of the administrative proceedings related to the permits, petitioners appeared
before respondent and raised the concerns they have raised in this action: whether building the
super levees without building the Paradise Cut improvements at the same time would create a
significant risk of downstream flooding; and whether the potential effects of climate change
(global warming) had been considered adequately in analyzing the environmental impacts of the
project. Petitioners asked respondent to perform a new CEQA environmental review of the
effects of the super levees.
Respondent did not do so. Instead, respondent determined that it was acting as a
responsible agency under CEQA, rather than a lead agency, and on that basis determined that it
was entitled to rely on the environmental review of the project the City of Lathrop had done as
the lead agency in the SEIR and the Addendum to the SEHL Respondent thus approved the fill
and encroachment permits without a new environmental review. (See, respondent's Resolution
06 -26, "Resolution Adopting Findings Related to Encroachment Permits No. 18018 -1 & 18018-
2", approved July 21, 2006, A.R. 12378 -12379 (the text of the resolution); A.R. 13324; 13349
(excerpts from the transcript of the Board meeting at which the resolution was adopted, including
the final vote); 13355 -13356 (Minutes of Board's July 21, 2006 meeting).)
In this action, petitioners argue that CEQA required respondent to perform its own
review of the potential environmental impacts of the super levees, because there had been two
significant developments in relation to the project since the time of the prior environmental
review in the SEIR and the Addendum to the SEIR. The first such development is alleged to be
that the project approved by respondent does not include the Paradise Cut improvements, which
"recent information indicates... may never be implemented. ". (Petition, paragraph 28.) The
second such development is alleged to be new information regarding the effects of climate
change on the Delta showing that the project either will have significant new impacts not
discussed in earlier reviews, or that significant impacts previously examined will be substantially
more severe than shown in previous reviews. (Petition, paragraphs, 29 -30.)
The governing statute under CEQA is Public Resources Code section 21166, which
provides that when an environmental impact report has been prepared for a project, no
subsequent or supplemental EIR shall be required by a lead agency or any responsible agency
unless one or more of the following events occurs: (a) substantial changes are proposed in the
project which will require major revisions of the EIR; (b) substantial changes occur with regard
to the circumstances under which the project is being undertaken which will require major
revisions in the EK (c) new information becomes available, which was not known and could not
have been known at the time the EIR was certified as complete.
With regard to petitioners' claim that the project has changed by virtue of the alleged
omission of the Paradise Cut improvements, the standard of review is that the court will uphold
the agency's decision if the administrative record as a whole contains substantial evidence to
support the determination that the changes in the project or its circumstances were not so
substantial as to require major modifications to an EIR previously done for the project. This is a
relatively deferential standard that reflects the fact that an in -depth review of the project already
has taken place. (See, Santa Teresa Citizen Action Group v. City of San Jose (2003) 114 Cal.
App. 4th 689, 703.) The reviewing court may not substitute its judgment for that of the agency,
and must resolve reasonable doubts in favor of the agency's decision. (See, A Local and
Regional Monitor v. City of Las Angeles (1993) 12 Cal. App. 4th 1773, 1 800.) The agency's
decision is presumed to be correct, and the challenger has the burden of demonstrating otherwise.
(See, Evidence Code section 664; State Water Resources Control Board Cases (2006) 136 Cal.
App. 0 674, 723.)
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Having applied that standard of review to this first aspect of petitioners' claim, the Court
finds that respondents decision not to perform its own environmental review in connection with
approval of the fill and encroachment permits is supported by substantial evidence in the record.
That evidence consists of the City's SEIR and the Addendum to the SEIR. The latter document
in particular concluded that deferring the Paradise Cut improvements to a later phase would not
change the impact of the project on surrounding flood elevations as previously analyzed in the
SEIR. The Addendum to the SEIR was not challenged by these petitioners (or any others); in
fact, petitioners admit in the petition that the time for any such challenge has passed. (See,
Petition, paragraph 27.) Thus, under the CEQA and the CEQA regulatory Guidelines, which
have the force of law, the Addendum to the SEIR is conclusively presumed to comply. with
CEQA for purposes of its use by responsible agencies such as respondent, and the information
therein may constitute substantial evidence in the record to support the agency's action on the
project if its decision is challenged in court. (See, Public Resources Code section 21167.2; 14
C.C.Rsections 15231; 15121(c).)
The only exception to this rule is where the provisions of Public Resources Code section
21166 are applicable, that is, where there has been a substantial change in the project.
Petitioners have not demonstrated that such a change occurred here. To the extent that deferral
of the Paradise.Cut improvements was a substantial change to the project, that change already
has been analyzed in the Addendum to the SEM a document that is now conclusively presumed
to have complied with CEQA. Petitioners have not demonstrated that any of the factors upon
which. the Addendum to the SEIR relied in reaching its conclusion have changed, such as partial
construction of the "cross levee ", removal of only a portion of the eventual development area
from the flood plain, or excavation of some phase 2 areas to provide material for building the
levees. Respondent therefore was not required to do a new analysis of the effects of deferring
the improvements.
Although petitioners now attempt to allege a subsequent change to the project based on
the theory that the Paradise Cut improvements have been omitted, or will never actually be built,
there is no evidence that this is so. In fact, all of the substantial evidence is to the contrary. The
Addendum to the SEM which is the most recent evidence of the scope of the project, shows that
the Paradise Cut improvements are still part of the project, although deferred to a second phase.
(See, A.R. 7132.) No evidence in the record has been cited to show that the developers have
cancelled their plans to build the improvements. Instead, the record shows that the developers
are currently seeking approval to build them from the federal agency with jurisdiction over that
portion of the project, and that the federal agency will perform its own environmental review of
the improvements under federal law. (See, for example, A.R. 11477; 11776 -1 1777.) In contrast,
petitioners have cited only to a few testimonial statements in the record expressing a view, or
concern, that the Paradise Cut improvements might be delayed for years as a result of this
process, or possibly never built at all. (See, for example, A.R. 9808.) By themselves, such
statements are nothing more than speculation and therefore are not substantial evidence that the
improvements will not be built. (See, Citizen Action to Serve All Students v. Thornley 0990)
222 Cal. App. 3d 748, 756:)
To the extent that petitioners claim that the projected delay in obtaining approval for.the
Paradise Cut improvements is itself a change in the project not analyzed in the Addendum to the
SEM it is worth nothing that the-analysis contained therein does not appear to rely on any
particular timetable for constructing the improvements. The Addendum merely states that the
improvements will be constructed in phase 2, without indicating in any way when that will occur.
Thus, its conclusion regarding no change in impact does not appear to depend upon timing, but
rather on the other factors related to the construction of phase l of the project noted above.
Unless those factors change (and, as noted above, petitioners have not demonstrated that they
have), the Addendum's conclusion apparently would hold indefinitely. Petitioners may feel that
this conclusion is wrong, but it is beyond challenge now.
The Court therefore finds that petitioners have not demonstrated that there has been any
substantial change in the project related to the Paradise Cut improvements such that respondent
was required to perform its own environmental review of the impact of the super levees pursuant
to Public Resources Code section 21166.
hi their reply brief, petitioners shift ground somewhat, arguing that the relevant change .
in the project for purposes of analysis here is not just the deferral of the Paradise Cut
improvements, but the fact that the super levees themselves were not part of the phasing proposal
the City analyzed in the Addendum. Instead, petitioners argne that the project as analyzed
therein consisted only of building a new interior ring levee, which would protect the area to be
developed, and which would be physically separate and distinct from any existing levees, while
leaving all activities related to strengthening or altering existing levees (i.e., the construction of .
the super levees) to phase 2, along with the Paradise Cut improvements. Thus, they argue, when
the developers applied for the fill permit they had changed the project yet again, and such change
required respondent to perform a new environmental review because the flood - related effects of
the super levees would be significantly greater than those of the interior ring levee alone.
The Addendum does contain langnage suggesting that only the construction of an interior
ring levee, and not the super levees at issue here, was contemplated and analyzed by the City at
that time. (See, for example, A.R. 7135-7136,7149, 7153 - 7154.) Even the project description
the developers submitted in support of their application for the fill permit suggests as.much, by
referring to the super levees as part of "Phase 2A" of the project, and not the "Phase 1" discussed
in the Addendum. (See, A.R. 11300.) There is thus some evidentiary support in the record for
the concept that the project had changed yet again.
Before addressing the merits of this issue, the Court must resolve the question of whether
this issue is properly before it. First, with regard to alleged significant changes in the project, the
petition does not allege that the super levees themselves amounted to such a change; it
concentrates entirely on the alleged omission of the Paradise Cut improvements. (See, Petition,
paragraphs 1, 28.) Second, petitioners' opening brief did not present the argument that the super
levees themselves were the significant-change in the project, except possibly in very cursory
form; once again, they concentrated on the alleged omission of the Paradise Cut improvements.
The alleged omission of the Paradise Cut improvements also was the focus of petitioners'
presentation at respondent's public hearing on the permits. (See, e.g., A.R. 115394 1540; l 1549;
l 1565.) Detailed argument and citations to the record focusing on the super levees themselves as
a significant change in the project occurring after the certification of the Addendum appears for
the first time in the reply brief. Ordinarily, points raised for the first time in a reply brief need
not be considered by the court. (See, Reichardt v. Hoffmann (1997) 52 Cal. App. 0 754, 764.)
Nevertheless, in this case the Court finds that it would be in the interests of justice to address and
resolve petitioner's claim, because it is without merit.
As noted above, Public Resources Code section 21166(a) requires an agency to prepare a
subsequent or supplemental environmental impact report where "f slubstantial changes are
proposed in the project which will require major revisions of the environmental impact report."
Here, .petitioners have not demonstrated that construction of the super levees is so significant a
• •
change in the project beyond the interior ring levees that were analyzed in the Addendum that
major revisions of the Addendum would be required.
Petitioners' allegation that such changes occurred is based on the theory that
construction of the super levee increased potential downstream flood impacts, which is in turn
based on the following chain of logic' the pre- existing federal project levees were likely to fail
during severe flood events, thus sending flood waters onto the Stewart Tract; such waters
therefore would not increase downstream flood elevations and consequent pressure on
downstream levees; strengthening the federal project levees into super levees means that they
will no longer fail; thus, flood elevations during severe events will increase downstream, and
levee failures and flooding are more likely to occur downstream as a result. This is the manner
in which petitioners presented the issue to respondent at the public hearing on the permits. (See,
e.g., A.R. 11547-11548; 11569.)
This chain fails at the first link, because substantial evidence in the record does not
support the concept that the pre- existing levees were likely to fail, but rather indicates the
contrary. With regard to those pre - existing levees, the Addendum states: "...a breach of these
levees is considered unlikely because it has never occurred before, and because the existing
levees are at least 4 feet above the elevation of the 200 -year flood.", (A.R. 7153 - 7154.) If the
levees were not likely to fail in any event, then strengthening them would not create a significant
new risk to downstream locations. The administrative record as a whole therefore contains
substantial evidence to support the determination that any change in the project in the form of the
construction of the super levees was not so substantial as to require major modifications to the .
prior environmental review done for the project (See, Santa Teresa Citizen Action Group v. City
of San Jose (2003) 114 Cal. App. 4th 689, 703.)
With regard to petitioner's claim that new information regarding the effect of climate
change on the Delta should have compelled respondent to do its own further environmental
review of the super levees, three requirements must be satisfied in order to trigger preparation of
a new EIR. Those requirements are: l) new information of substantial importance becomes
available; 2) such new information was not known and could not have been known at the time
the EIR was certified; and 3) the new information shows either that the project will have one or
more significant effects not previously discussed or that significant effects previously examined
will be substantially more severe than shown in the EIR. If any one of these three requirements
is not satisfied, the agency is prohibited from requiring a subsequent EIR. (See, A.Local and
Regional Monitor v. City of Los Angeles (1993) 12 Cal. App. 4th 1773, 1800.)
In this case, the alleged new information petitioners rely upon all relates to the projected
impact of climate change on conditions in the Delta region, particularly projections regarding
more frequent and more severe flood episodes. Five sources of that new information are cited in
petitioners' brief:
L The California Department of Water Resources California Water Plan Update, dated
December, 2005. (Petitioners cited this report in a letter briefing submitted to respondent,
providing a URL at which the report could be found on the Internet, but the report itself
apparently was not submitted to respondent and it is not in the record before this Court.. See,
Supplemental A.R. 22392.)
2. The CalEPA Climate Action Team Report to Governor Schwarzenegger and the
California Legislature dated March 2006. (Again, petitioners cited this report in a letter briefing
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submitted to respondent, providing a URL at which the report could be found on the Internet, but
the report itself apparently was not submitted to respondent and it is not in the record before this
Court. See, Supplemental A.R. 22392.)
3. Testimony of California Department of Water Resources Director Lester Snow to the
Subcommittee on Water Power, Committee on Resources of the U.S. House of Representatives,
April 6, 2006. (See, A.R. 11658-11660.)
4. California Department of Water Resources Report entitled "Progress on Incorporating
Climate Change into Management of California's Water Resources ", dated July 2006. (See, A.R.
11991- 12347, and, in particular, Section 2.6.2.3: Flooding Risk in the Sacramento -San Joaquin
Delta, A.R. 12077 - 12081; Chapter 6: Climate Change Impacts on Flood Management, A.R.
12245 - 12283.)
5. A statement by the U.S. Environmental Protection Agency, which is working on a
federal Environmental Impact Statement for the Paradise Cut improvements, that it will consider
climate change and its effects on California hydrology and that existing analyses in the EIRs for
the River Islands project will not be sufficient. (A.R. 11904.)
Petitioners' claim that the information presented in these materials required respondent to
perform a new environmental analysis of the impacts of the super levees is not persuasive for two
reasons.
The first reason is that the concept that climate change is occurring and will have an
impact on the hydrology of the Delta in general, and on the frequency and severity of flood
episodes in particular, is not really "new information" under Public Resources Code section
21166. As respondent and real parties have demonstrated, such concepts were known to
petitioners, the public at large, and presumably to California public agencies as well, prior to
mid -2005, the date of the Addendum to the SEIR. If the City should have taken such matters into
account in the Addendum to the SEIR but did not, such failure, if any there was, is now beyond
review now under CEQA. (See, Public Resources Code section 21167.2.) Of course, another
way of posing the issue is to say that the issue of climate change as related to this specific project
could have been presented to the City at that time, but apparently was not, by petitioners or .
anyone else.
The second reason petitioners' claim is unpersuasive is that even if it is assumed that the
scientific and political consensus regarding the existence and potential effects of climate change
has grown significantly since mid -2005, petitioners have not presented any real new information
that has emerged regarding the specific effects that are to be expected in the area of the Delta
where this project is being built. The studies or documents petitioners cite primarily contain
generalized information regarding the potential effects of climate change on the State or the
Delta region as a whole, or projections that relate to other areas of the Delta with conditions that
differ significantly from those at the project site, rather than projections that are specific to the
project site itself.
At most, petitioners have argued that these generalized studies suggest that certain
higher - severity events analyzed in the SEIR and the Addendum to the SEIR (such as 1-in -100
year or 1 -in -200 year floods) are likely to be more frequent than may have been assumed in those
documents, which in turn would lead to more significant effects from the project than have been
analyzed.
7
The problem with this argument is that it is based on two propositions, only one of which
appears to be supported by information in the cited studies.
The first proposition is that there will indeed be an increase in the frequency of such
events. The Department of Water Resources December 2005 study apparently does suggest that
this may be the case, with, for example, 1 -in -100 year events potentially becoming 1 -in -10 year
events. (See, petitioner's opening brief, page 32, footnote 117.)
The second proposition is that a general increase in the frequency of certain events
necessarily results in an increase in the impact of this particular project, located on this particular
site. On this point, however, petitioners have not presented any specific new information which
.would permit the increase in high - severity events to be quantified for this site, for this project, in
a way that could lead to a conclusion that overall impacts of the project would be significantly
increased as the result of climate change. This is true as to both 1 -in -100 year and 1 -in -200 year
events, which petitioners specifically cite in their brief For example, with regard to 1-in -100
year events, in relation to which the effects of the project have been found to be less than
significant, petitioners do not cite any specific new information tending to demonstrate that an
increase in the frequency of such events, by itself, would make the impact more severe. Second,
in the case of "extremely rare" 1-in -200 year events that the City's SEIR and Addendum thereto
recognize could have discrete impacts when they occur (such as the potential for increased water
flow velocities causing significant erosion to levees), but which, because of their rarity and the
conservative nature of the hydraulic model used for analysis (see, A.R. 7972), are evaluated in an
overall sense as less than significant, there is, again, no quantification of the potential increase in
such events that would lead to the conclusion that the impact must now be seen as more
significant.
The Court therefore finds that petitioners have not demonstrated that significant new
information has become available with regard to climate change and its effect on this particular
project, such that respondent should have performed a full environmental review under CEQA
before approving the fill and encroachment permits. This ruling is a narrow one, and is not a
ruling that the effects of potential changes in climate are not a proper subject for consideration
under CEQA. Petitioners have made a persuasive showing that there is a growing consensus on
the issue that has caused state environmental agencies to give it closer attention. As the
projected effects of climate change become clearer and can be related to specific sites, there is
little doubt that those effects will have to be factored into the analysis of many projects under
CEQA. The present ruling in no way detracts from that reality. All the Court is deciding here is
that, applying CEQA as it exists, and applying, as it must, a standard of review in which the
public agency's actions are presumed to be in accordance with law and reasonable doubts are to
be resolved in its favor, petitioners have not demonstrated that significant new information had
become available with regard to the effects of climate change on this project between the
certification of the Addendum to the SEIR and the approval of the fill and encroachment permits
that was sufficient to require additional environmental review under Public Resources Code
section 21166.
2. Second Cause of Action
hi the second cause of action, petitioners allege that respondent violated CEQA in
several respects when it adopted its findings with regard to the prior environmental review of the
River Islands project in connection with the approval of the fill and encroachment permits. (See,
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• 1 11 •
respondent's Resolution 06 -26, "Resolution Adopting Findings Related to Encroachment Permits
No. 18018 -1 & 18018 -2 ", approved July 21, 2006, A.R. 12378 - 12379.)
Petitioners' claim has three aspects. First, they allege that respondent improperly failed
to make any findings regarding compliance with CEQA until after it had reached its decision to
approve the permits, and then made the findings as a post -hoc rationalization of the decision
already taken. Second, they allege that respondent improperly relied upon its staff to review the
City's SEIR and Addendum to the SEIR and failed to perform its own independent review and
consideration of those documents. And third, petitioners allege that the record lacks substantial
evidence to support the findings respondent adopted.
The first two aspects of petitioners' claim raise the issue of whether respondent complied
with the law in the procedure it followed in considering and approving the permits. Those
contentions therefore raise issues of law, on which the Court exercises its independent judgment
(See, Galante Vineyards v. Monterey Peninsula Water Management District (1997) 60 Cal. App.
4'" 1109, 1117.) As stated above, respondent's action is presumed to be in accordance with the
law, and the challenger has the burden of demonstrating otherwise. (See, Evidence Code section
664; State Water Resources Control Board Cases (2006) 136 Cal. App. 46 674, 723.)
The Court has reviewed the record as it relates to the manner in which respondent.
proceeded in considering and approving the permits, and has exercised its independent judgment
on the evidence in the record. On the basis of such evidence, the Court finds that the record does
not support petitioners' contention that respondent made after- the -fact findings and failed to
perform its own independent review and consideration of the earlier environmental documents.
Instead, the record demonstrates that respondent addressed this matter at two separate
public meetings, first considering evidence relating to the .permits and making findings, and
thereafter having the findings put into formal written form to. be adopted at the second meeting.
Thus, the record shows that at the first public meeting, on June 16, 2006, respondent
heard and considered testimony from its own staff and outside witnesses on two primary.topics:
that the action it proposed to take (approval of the super levees) would not have a significant
effect on Delta hydrology; and that prior environmental reviews by the City of Lathrop (which
had been reviewed by respondent's stag had already reached the conclusion that the project
would not have a significant effect on Delta hydrology. On the basis of that testimony,
respondent determined that CEQA had been complied with (thus implicitly determining that no
further environmental review was required), and directed staff to prepare formal written findings
which would be adopted at a subsequent public meeting. (See, e.g., A.R. 11480, 11549-11553;
11586 -1 1592; 11630; 11641 -1 1643.)
The record further shows that at the second public meeting, on July 21, 2006, respondent
formally adopted the written findings that had been prepared by its staff counsel. (See, e.g., A.R.
13349.)
Taken as a whole, therefore, the record demonstrates that respondent considered the
evidence before making its decision on the permits, made the CEQA findings when making that
decision, and thereafter confirmed the findings in written form. The fact that the individual
members of respondent Board appear to have relied. on staff recommendations and testimony
regarding the City's prior environmental review, rather than reading the SEIR and the Addendum
to the SEIR themselves, does not amount to a violation of CEQA. The substance of those prior
r
documents was before respondent through the staff recommendation and testimony. Petitioners
have not demonstrated that the substance or findings of the prior environmental documents were
in any way misrepresented to the members of respondent Board. Respondent was free to adopt
or reject the staff recommendation, and heard and considered contrary testimony from
representatives of petitioners and others. Thus, the Court does not find that respondent failed to
independently consider the substance of the prior environmental review in making its decision.
Petitioners attempt to attack the findings by arguing that there is no evidence in the
record to demonstrate that the Addendum to the SEIR actually had been received and considered
by the Board's Environmental Review Committee, which made the staff recommendation
regarding CEQA compliance, prior to the date of the approval of the permits. In support of this
argument, petitioners cite to the staff report for the June 16, 2005 meeting (A.R. 11286-11288),
and to the Environmental Review Committee memorandum dated February 6, 2006 (A.R. 11323-
11329), and to certain internal e-mail communications (such as the July 20, 2006 message at
A.R. 22328), which were the subject of respondent's separate motion to strike.
None of these documents specifically list the Addendum to the SEIR as being among the
documents that had been reviewed. This omission may be curious, but the Court does not find it
to be determinative, because the substance of the Addendum's conclusions, if nothing else,
clearly was before respondent when it approved the permits. At the June 16, 2006 hearing, Sean
Bechta, a representative of EDAW, the entity that performed the environmental review of the
River Islands project on behalf of the City of Lathrop, specifically testified as to the existence
and conclusions of the Addendum. (See, A.R. 11586-11592.) Petitioners have not demonstrated
that this testimony in any way misrepresented the substance of the Addendum; in fact, it is
confirmed by the Addendum, which is in the record before the Court. Thus, respondent was not
deprived of the information contained in the Addendum that was relevant to the issues before it.
Thus, even if the Court were to find that respondent technically erred by acting without
having the Addendum in its possession, any such error was not prejudicial. An error is
prejudicial where it results in the omission of material information necessary to informed
decisionmaking and informed public participation. (See, County ofAmador v. El Dorado County
Water Agency (1999) 76 Cal. App. 0 931, 946.) Here, accurate information regarding the
conclusions of the Addendum was before respondent (and was aired at a public hearing) when
respondent acted. Moreover, since the Addendum was never challenged in court, respondent was
legally bound to accept its conclusions in the absence of changes in the project or significant new
information. Thus, respondent could not.have reached any different conclusion regarding further
environmental review based on the facts present here.
Finally, respondent's written findings were not mere "boilerplate ", but instead,
succinctly described what was done: that the permits were approved after a thorough review of
the environmental effects of the project, including that which had been done in connection with
the SEIR and the Addendum to the SEIR. Nor did the findings amount to a mere post hoc
rationalization of a decision already taken; instead, they reflected in writing the rationale
respondent and staff articulated on the record at the June 16, 2006 meeting. (See, La Costa
Beach Homeowners' Association v. California Coastal Commission (2002) 101 Cal. App. 0
804, 819 -820.) Petitioners therefore have not demonstrated that this procedure violated the law.
The third aspect of petitioners' claim in the second cause of action, that respondent's
findings are not supported by substantial evidence, is very similar to the claim set forth in the
fast cause of action, and is subject to the same standard of review discussed in connection with
12
• s
that cause of action. In light of the Court's ruling on the first cause of action, no extended
discussion is necessary here. As discussed above, respondent's finding that CEQA had been
complied with through the City's environmental review of the River Islands project is supported
by substantial evidence in the form of the SEIR and the Addendum to the SEIR. Moreover, as
noted above, respondent heard and considered testimony from its own staff and outside witnesses
to the effect that approval of the permits would not create any new or additional environmental
impact. Such testimony is substantial evidence in support of respondent's findings,
notwithstanding the fact that there also may be contrary evidence in the record; the Court does
not re -weigh the evidence in applying the substantial evidence test. (See, Laurel Heights
Improvement Association v. Regents of the University of California (1988) 47 Cal. 3d 376, 393.)
3. Third Cause of Action
In the third cause of action, petitioners allege that respondent violated CEQA by not
making written findings with a brief explanation supported by substantial evidence in the record
for each of the significant effects identified in the EIR within its jurisdiction. Presumably. this is
a reference to effects that had been identified in the City's prior environmental review
documents. Petitioners specifically mention significant impacts that had been identified related
to seismic hazards, corrosive soils and the shrinking and swelling of soils. (See, Petition,
paragraph 40.)
In their briefing, petitioners argue that respondents findings, as expressed in its July 21,
2006 Resolution, lack sufficient specificity to satisfy CEQA, being "wholly conclusory" and
thereby failing to "disclose the analytic route the agency traveled from evidence to action ".
(Petitioners' opening brief, page 38:1 1 -16, citing Village Laguna of Laguna Beach, Inc. v. Board
of Supervisors (1982) 134 Cal. App. 3d 1022, 1034-1035.)
This argument is not persuasive. The findings clearly disclose that respondent approved
the fill and encroachment permits without a new environmental review after reviewing the
CEQA documents prepared by the City of Lathrop and finding that those documents had covered
all potential environmental impacts related to the super levees. As described above in connection
with the Court's ruling on.the first cause of action, in the absence of siguificant changes to the
project or significant new information, respondent was legally required to do so. The findings
expressed in the Resolution adequately describe this process and therefore meet.the requirement
that they be sufficiently specific to reveal the analytic route respondent traveled from evidence to
final action. (See, Topanga Association for a Scenic Community v. County of Los Angeles
(1974) 11 Cal. 3d 506, 515.) Even if a more detailed .presentation could have been done, the rule
applicable to CEQA findings is that technical perfection is not required; instead of looking for an
exhaustive analysis, courts look for adequacy, completeness and a good faith effort at full
disclosure. Respondent's findings satisfy that standard.
Petitioners further argue that even if the findings are sufficiently specific, they are not
supported by substantial evidence. Here, petitioners focus on the statement in the Resolution that
respondent's Environmental Review Committee had "...determined that all environmental impacts
within the responsibility of the.Board had been mitigated or avoided ". (A.R. 12378.) The
argument is based upon citations to documents in the record that petitioners contend demonstrate
the following: that the Committee made its determination only one day after receiving the EIR,
and therefore did not have sufficient time to review the City's environmental documents before
making its determination; that the Committee acted prematurely because it made its
recommendation before knowing the true scope of the project (i.e., the work to be done under the
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fill and encroachment permits); and that all the Committee really determined was that a prior EIR
had been done, not whether it actually dealt with the relevant impacts. (See, record evidence
cited in petitioners' opening brief, page 39, footnotes 135 -136.) The Court notes that the cited
evidence does not necessarily prove the points petitioners advance. More fundamentally,
however, petitioners' argument is somewhat beside the point As set forth above, the Addendum
to the SEIR specifically found that building levees to remove a portion of the area to be
developed from the flood plain without building the Paradise Cut improvements at the same time
would not cause any significant environmental impacts in terms of hydrology and flooding.
Those are the impacts within the responsibility of respondent. The Addendum is therefore
substantial evidence in support of the challenged finding that all environmental impacts within
the responsibility of the Board had been mitigated or avoided. This is true no matter what the
Environmental Review Committee did.
The issue petitioners raise regarding seismic hazards, corrosive soils and the shrinking
and swelling of soils requires a more extended discussion.
In the SEM the City identified each of these impacts as being significant before
mitigation, and less than significant after mitigation. In each case, the mitigation measure that
reduced the impact to less than significant was the requirement that a design -level geotechnical
study should be completed for each project development, specifically including each levee
segment, before a construction permit (referred to in the SEIR as a "grading permit ") was issued.
The issues to be addressed specifically in the geotechnical studies are set forth in the SEIR.
(See, SEM Summary of Impacts 4.7-e, 4.7 -f and 4.7 -g, p. 2- 37 -2 -38, A.R. 7606 -7607; and 4.7-
21-4.7-22, A.R. 7907- 7908.)
The Addendum to the SEIR found that the new phasing scenario for the project would
not change the analysis of impacts in these areas. (See, Addendum to SEM p. 3 -7, A.R. 7147.)
Thus, the Addendum carved forward the conclusion that impacts in these areas would be less
than significant if mitigated as set forth in the SEM i.e., through preparation of geotechnical
studies.
Respondent's findings, as expressed in. its July 21, 2006 Resolution, state, on the basis of
the City's CEQA documents and other substantial evidence it received and considered, that all
environmental impacts within its area of responsibility had been "...mitigated or avoided as the
result of changes, alterations and mitigation. measures incorporated into the project". (See, A.R-
12378-12379.) Because respondent was, in effect, acting on the construction permit for the super
levees, this finding must be interpreted, in connection with the three impacts at issue here, as a
finding that such impacts had, in fact, been mitigated to it level of less than significant through
the preparation of geotechnical studies addressing the areas of concern set forth in the SEIR.
The issue before the Court, then, is whether that finding is supported by substantial
evidence in the record in the form of such geotechnical studies.
Where, as here, an administrative decision is challenged as being unsupported by
substantial evidence in light of the record as a whole, it is the challenger's burden to demonstrate
that the administrative record does not contain sufficient evidence to support the decision. A
one -sided presentation that recites only the evidence that supports the challenger's position is not
the demonstration contemplated by this rule. Instead, if petitioners contend that some particular
issue of fact is not sustained, they are required to set forth in their brief all the material evidence
on the point and not merely their own evidence. Unless this is done, the error is deemed to be
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waived. (See, State Water Resources Control Board Cases (2006) 136 Cal. App. 4r' 674, 749-
750.)
Petitioners' presentation on this issue is not in accordance with the rule. In their opening
brief, petitioners cite only to evidence that they contend supports their position that impacts
related to potential earthquakes and soil stability had not been addressed. (See, petitioners'
opening brief, page 41 and footnotes 141 -143.) No reference is made to any evidence that might
support the finding, even though the evidence petitioners cite appears to make reference to some
such materials, including the following: a Preliminary Levee Evaluation for the project prepared
by ENGEO, Inc., dated March 26, 2002 (see, A.R. 5561); ENGEO, hic.'s Response to Review
Comments on the preliminary levee evaluation and a preliminary geotechnical study for the
project, dated May 11, 2005 (see, A.R. 5561 - 5581); additional geotechnical studies referred to in
the previous document that were projected to be done thereafter; and a revised slope stability
model for the cross levee (see, A.R. 21210). There may well be other materials relevant to these
issues somewhere in the 22,000+ page administrative record, but petitioners mention none, not
even for the purpose of refuting them. Any error in respondent's findings is therefore deemed to
be waived.
Moreover, at least one of the documents petitioners cite does not really support their .
position that seismic impacts, at least, have not been mitigated or avoided. The March 28, 2006
e-mail message from Ryan Olsen to Ron Heinzen states: "I understand that much of the existing
levee will be buttressed and built up to a width of approximately 300 feet Where this is the case,
we feel that this will provide adequate protection even.in the case of an earthquake." (See, A.R.
21210.)
Finally, without addressing the evidence that might support the finding and
demonstrating that it does not, in fact, do so, petitioners, at most, have shown that there is a
disagreement among experts on the issue of whether these particular impacts have been
mitigated. It is not the task of the courts to re -weigh evidence and resolve disputes over the
adequacy of mitigation measures. (See, Laurel Heights Improvement Association v. Regents of
the University ofCaiifornia (1988) 47 Cal. 3d 3765 393.)
The Court therefore finds that petitioners have not demonstrated that respondent violated
CEQA in any of the ways alleged in the third cause of action.
4. Fourth Cause of Action
The fourth cause of action alleges that respondent violated its own regulations by failing
to comply with CEQA in approving the permits. Respondent's regulations incorporate the
CEQA regulatory guidelines and make them applicable to its actions. (See, 23 C.C.R. 191.)
Thus, to the extent that respondent violated CEQA regulatory guidelines, it also violated its own
regulations. This cause of action contains nothing new of substance relating to alleged violations
of CEQA that has not been discussed and resolved in connection with the first three causes of
action. The Court's ruling on this cause of action is therefore embraced within its rulings on the
first three causes of action, set forth above.
B. Petitioners' Regulatory Claims: Fifth and Sixth Causes of Action
The fifth and sixth causes of action may be analyzed together, because both allege that
respondent violated applicable law when it granted the encroachment permit (Permit No. 18018-
15
2). The alleged violation of law is two -fold: l) respondent did not require dedication of a flood
control easement over the entire super levee plus ten feet beyond the landward levee "toe'; 2)
respondent's requirement of a limited easement will have the effect of allowing structures to be
built on top of a portion of the levee, which is prohibited by law unless respondent grants a
variance.
As noted above, there is no actual Permit No. 18018 -2 in the administrative record.
Although respondent has approved the permit on the record at a public meeting, the physical
permit apparently has not yet been completed by respondent's staff. Nevertheless, it is possible
to determine the terms of the permit from the record. (See, A.R. 11873- 11900: Transcript of
respondent's hearing dated June 26, 2006 and Minutes thereof.)
Essentially, respondent decided to require an easement made up of two "zones ",
denominated Zone A and Zone B. Zone A was described as consisting of the "...typical
Reclamation Board easement consistent f sic]'of a three -to -one water -side slope, 20400t crown
width, two -to -one slope on the levee along the land side down to the original ground, plus a ten -
foot easement beyond that...." (A.R. 11873.) Zone B was described as an "...excavation
easement that would allow us to reach, since there's being placed over top of what the Board is
responsible for, would allow us to reach the area that is required in the Board's regs as defined
by Zone A at anytime in the future." (A.R. 11874.) No encroachments or structures would be
permitted in Zone A, while non - habitable structures would be permitted in Zone B (subject to
removal in case of need to excavate). (A.R. 11900.) The parties agree that the effect of
approving this proposal was that a large part of the top of the super levee was not covered by the
easement, and thus would not be considered to be within respondent's regulatory jurisdiction;
meaning that structures such as houses could be built on that portion of the levee top without
respondent's approval.
Resolution of the claims contained in the fifth and sixth causes of action requires the
Court to interpret and apply the applicable law, specifically, respondent's own regulations
regarding flood control easements and structures on levees. Petitioners' contentions therefore
raise issues of law, on which the Court exercises its independent judgment. (See, Galante
Vineyards v. Monterey Peninsula Water Management District (1997) 60 Cal. App. 0 1109,
1117.) Even so, courts may give great weight to an administrative agency's interpretation of its
own regulations where the subject matter is technical, obscure, complex, open - ended, or
entwined with issues of fact, policy and discretion. (See, Simi Corp. v. Garamendi (2003) 109
Cal. App. 48' 1496, 1504 -1505.) The agency's interpretation of the regulations is not entitled to
any particular weight, however, where it is clearly erroneous or unauthorized. (See, Overaa
Construction v. California Occupational Safety and Health Appeals Board (2007) 147 Cal. App.
4'h 235, 244245.)
The law governing easements and structures on flood control levees is found in
regulations promulgated by respondent
Easements are governed by 23 C.C.R. section 120(ax5), which provides that when
levees are "constructed, reconstructed, raised, enlarged or modified ", the builder shall provide
respondent with a permanent easement, which must include "...the levee section, and the area ten
(10) feet in width adjacent to the landward levee toe if the area is not presently encumbered by a
board easement."
16
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0
Structures on levees are governed by 23 C.C.R. section 113(b)(6)(a), which states that
structures "...may not be constructed on a levee section or within ten (10) feet of a levee toe."
(Respondent has authority to grant a variance under 23 C.C.R. section 1 L)
The term "levee section" is defined in 23 C.C.R. section 4(r) to mean "the physical levee
structure from the landward toe to the waterward toe ".
The term "levee toe" is defined in 23 C.C.R. section 4(s) to mean "the point of
intersection of the levee slope with natural ground ".
Applying this law to the action respondent took with regard to the easement, the Court
finds that respondent did not comply with the law. By placing fill in between the existing federal
levees and the internal private levee to create a larger "super levee ", the developers either
"reconstructed ", "enlarged" or "modified" the existing levee. That
reconstruction /enlargement/modification resulted in a new levee with a new landward toe.
Under the plain meaning of the cited regulations, respondent should have required the builders to
provide an easement over the entire physical levee structure from one toe to the other, and ten
feet beyond the new landward toe. Respondent did not do so. Instead, it retained an easement
over only a portion of the enlarged levee, apparently on the theory that the easement was proper
as long as it still covered the whole of the original federal levee. The regulations not only
provide no explicit support for this approach, they explicitly seem to rule it out, by providing that
an easement must cover the entire physical levee structure when a levee is "enlarged ". That is
exactly. what occurred here. There is no regulatory exception permitting easements over only a
portion of larger levees.
For similar reasons, respondent did not comply with the law when it effectively
permitted structures to be built on a portion of the top of the super levee. The plain meaning of
the applicable regulations is that no structures may be built on the physical levee structure from
one toe to the other. The only apparent exception would be where a variance is properly granted.
There is no regulatory exception for enlarged or oversized levees.
To the extent that respondent's decision in this situation represents an administrative
interpretation of the applicable regulations, the Court finds that it is clearly erroneous and
unauthorized because -it contravenes the plain meaning of the regulations. Such interpretation is
therefore entitled to no particular weight or deference. Moreover, there is no evidence in the
record that respondent ever has applied the easement regulations in this manner in any other,
situation. To the extent that there is any evidence in the record regarding respondent's
interpretation of the regulation before granting this permit, it is to the contrary. See, for example,
the testimony of respondent's Chief Engineer at respondent's November 15; 2002 meeting (A.R.
1477 - 1489); and the document entitled "Staff Discussion — Landside Levee Embankment Fill ",
dated December 8, 2003 (A.R. 13599).
C. Defenses of Riaeness and Laches
In addition to arguing that this matter is moot, real parties in interest assert two other
defenses to the petition.
The first defense is based on the contention that this matter is not yet ripe, because
petitioners' challenge, insofar as it relates to the flood - related impacts of the super levees, must
be seen as actually directed at the still -to-be completed environmental review of the Paradise Cut
17
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improvements. This contention is not persuasive. Petitioners' challenge is narrowly focused on
the approval of the fill and encroachment permits. The issues petitioners have raised regarding
easements and structures on the super levee are entirely separate from any issue of hydrology or
flood - related impacts. Moreover, this defense is essentially moot as to petitioner's CEQA claims
in light of the Court's ruling that they have not prevailed on those claims.
The second is based on the allegation of ]aches, and asserts that petitioners unreasonably
delayed in challenging the project until the developers. had spent significant sums on it in reliance
on respondent's approval of the fill permit, in particular, on the construction of the super levee.
Even though it appears to be true that a considerable expenditure has been made, the Court finds
that (aches does not provide a basis for denying the petition. It is really only petitioners' CEQA
claims that could have in any way put general development expenditures or those made to
construct the super levee at risk, since it was only those claims that theoretically could have
resulted in that work having to be stopped or undone. Petitioners have not prevailed on those
claims. The Court's ruling regarding the regulatory claims, on the other hand, affects only what
can be done on top of the super levees. There is no showing that the real parties in interest have
spent any significant sums on development atop the levees. Thus they have not shown that
petitioners' regulatory claims should be barred by laches.
VI. Conclusion .
For the reasons set forth above, the Court finds that petitioners have not demonstrated
that respondent violated CEQA in connection with its approval of the fill and encroachment
permits. The Court therefore denies the petition for writ of mandate with regard to petitioner's
CEQA claims. The Court does find, however, that respondent violated applicable regulatory law
in connection with its approval of the encroachment permit when it failed to require an easement
over the entire physical levee structure from one toe to the other, and ten feet beyond the new
landward toe, and thereby permitted structures to be built atop a portion of the levee. The
petition for writ of mandate is therefore granted with regard to petitioners' regulatory claims.
In the event that this tentative ruling becomes the final ruling of the Court, counsel for
petitioners is directed to prepare the final order and judgment granting the petition in part and
denying it in part, as set forth above, and an appropriate writ of mandate, according to the
procedures set forth in.Rule of Court 3.1312.
18
EXHIBIT 8
....... ............................... ....
SUPERIOR COURT FOR THE STATE OF CALffORNIA,
COUNTY OF NAPA
AMERICAN CANYON COMMUNITY
UNITED FOR RESPONSIBLE CROVrM
Pelitiow.
VS.
CITY OF AMERICAN CANYON. BY AND
THROUGH THE CITY COUNCIL, et al.,
Defendants,
LAKE STREET VENTURES, LLC. et al-
Real Parties -in- Loosest.
1-r 1 LcnnJ AupaNa 1 m"K t'LANNmu, at
Al,
Petitioners,
V3.
CITY OF AMERICAN CANYON. BY AND
THROUGH THE CITY COUNCI4 iK al.,
Defendanu.
LAKE STREET VENTURES, LLC, et al..
Reel Parties -In- Interest.
Case No.: 26 -27462
Order Diachasging the Writ of Mandate
Case No.: 26.27534
Order Dischmging tlae Writ of Mandate
Ovda INsdaFft tltwrit afMwAmc
Ce WK 2547462 m 2637511
s'd - --
• •
JIMODUMON
in these eombdated actions, Petitioners American Canyon Comeuunity United for .
Responsible Growth (Am Can) and Citizens Against Poor Planning and Stacy Su (CAPP)
(Collectively the Citizen Groups) petitioned this court for a writ of mandate to direct the City of
American Canyon by and through the City Council (the City), to set aside and void all of its
approvals, resointions and permits relodng to the lam Junction Project Phase II (the Project).
The Count bad denied the petitions. but the Citizen Groups appealed that decision, which was
ultimately reversed by the Court of Appeal in Amarkan Cmryon Comstmmiry United jor.
Responsible Growth Y. City ofAmeriem Canyon (20067 145 Cal[App.4th 1062. The court of
Appeal remanded the matters back to this court with insnuctioas "to issue a writ of nw xh to
requiring the City to comply with Public Resources Code section 21166 and its own zoning code,
consistent with the views expressed in the opldon.•t (Id at p. 1085.) This court did issue the
writ of mandate as instructed by the court of Appeal and ordered the City to file a return to the
writ to show compliance therewith.
On April 26, 2007, the City filed a return to the writ of mandate indicalingthat an April
24,2W7, after a dnly noticed public hearing at which doeomemary evidence and public
testimony were received, the City to- approved the Pr4ectafter approving and certifying an
addendum (the Addendum) to theprevioualy certified mitigated negative declaration (MND), as .
weir as approval of the various land use permits at issue.
The CAPP petitioners object to the return on the basis that the Addendum is legally
insdequmto stgmn he decision tc m approve OieProjem- Their clnllenge to tiw colon came
on for hearing before the tout on May 14.200-
Having read and considered all the papers Sled and heard oral arginrem. the court took
the matter wrier submission.ard now rules as follows:
The CAPP petitioners object to the adequacy of the Addendum on three bases:. (1) it fails
to adequately analyze cumulative impacts within the regional market aces; (2) the tiaflic analysis
does not include a newly identified tenant in the Project, spacificadly a Chevron gas station with
12 fueling stations; and (3) it fails to analyze the project's impact on climate change. The court
will address each of these challenges below.
All finder statunory mferatw we to the Public Resources Cade necks otbetwise speeined.
ONa n*xtNs Wet Will ofmowm
On Was. 26.27462 and 26 -21534
I
STANDARD Of MIEW
In reviewing the City's return to the writ, the issue before the court is whether it was
appropriate under CEQA for the City to have re-approved the Project without requiring the
Preparation - of an EM or subsequent negative declaration addressing the proposed changes,
potential impacts that wine am previously aftessed in the MND. The stanutury guidance on this
ism is found in section 21166. under which an agency is prohibited from requirins a subsequent
ElIt (or negative declamfion� unless one or more of the following events occur.
O(A) Substantial changes are proposed in the project which will require major
revisions of the environmental impact report [or negative declaration].
(b) Substantial changes occur with respect to the circumstances under which the
project is being undertaken which will require major revisions in the
environinemid, impact report [or negative declaration].
(c) New information, which was not known and could not have bow known at
the time the envftoomeoW impact rqm was certified as complete, becomes
available." (&rockted mdo-Ad added)
As applied to this cow, the WgRaing events set forth in Section 21166 can be
paraphresed as a dauip in the Project or circumstagim surrounding the Project, or new
WOrmatiOn that was not known and could not have been known, which requires
Preparation of an EIR or modification of the negative declaration because the change or
new information reveals an additional impact, dimct or indfiect, that vvill.resuit in a
Potentially substantial adverse change in the physical isMyommun.
BY TO-qPmvmg the Project without requiring additional environmental review,
the City implicitly determined that the changes in the Project would M milt in
SigIlificaut Impacts not Previously addressed in the MND. It is this determination that
mum be supported by substantial evidence in order for the.writ to be properly discharged
a this time.
In general, substantial evidence has been defined as 'Wkvam evidence that a
MsOnSbIC mind might accept as adequate to support a conclusion." (&sftM v. Stare
Persomml Bd (1977) 74 CaLApp.3d 302.307.) The CEQA Guiddines define substantial
evidence as "enough relevant information And reasonable inferences front this
(kder DLCbf*" ft Wrk of MWWM
CM Mm 2f 57462 &W 2&27SU
e•41
information that a fair argument can be made to support a Conclusion, even though oilier
conclusions might also be reached .... Argument, speculation, unsubstantiated opinion or
narrative, evidence which is clearly erroneous or inaccurate. or evidence of social of
economic impacts which do not contribute to or are not caused by physical impacts oo
the environment does not constitute substantial evidence.... Substantial evidence . shall
include facts, reasonable assumptions predicated upon fsem, end expert opudon
supported by facts. (14 Col. Code Rep. § 15384.)
When faced with this type of review under CEQA, the cow is to resolve all
reasonable doubts and uwnf)icm in the evidence in favor of the administrative decision.
(Loevel Heights &WmvementAnn. v Regents of UnInraftyofCallforda. mpro. 6
CaL4th at p. 1135.) Moreover, courts must indulge all reasonable inferences fcom the
evidence that world support the agency's desermimtions. (Save Our Perdnsula
Committee v. Morrrerey County Bd of Supervisors (2081) 87 Cal. App. 4th 99.117.)
WAIVER OF OBJECTLONS
Before addressing the CAPP Petitioners' objections, the court first addresses the
argument made by Real Parties in Interest, Wal -Mart Stomas, Joe. and Lake Street Ventures, LLC
("Real Partiesj that pedtioneus have waived their objections by failing to comply with their
burden of presenting in their briefdte evidence supporting the City's deserminatiom (See
Megaplex -Free Alameda v. City ofAlanseda W) 149 Ca1.App.41h 91.) The court in Alegapks
held that the citizen group challenging a finding that [tote of the section 21166 events had
oocutte d bon the burden of demonstrating to the court that tint is insufficient evidence in the,
record to justify the City's action. (/d at p. 113.) To do so, the court field, "they must satforth
in their brief all the material evidence on the point' Ud at pp. 113 -114.) "A failure to do so is
deemed a concession that the evidence supports the findings. [Citation.) The meson for this is
that If the appellants fail to present us with all the relevant evidence, than the appellants coma/
carry their burden of showing the evidence was insufficient to support the agency's decision
because support for that decision may lie In the evidence the appellants ignore.' (Citation.] This
failure to present all relevant evidence on the point'is fatal.'" [Citation.] 'A reviewing ocurt will
'As confirmed by the Court of Appel, seeton 21166 also applies when the initial enviranmenui doaaem was a
negative declaration. rather tun am SIR (See Amsrioon Comlon Comewmay Unaadfor Rasparrlsle Growth w CTy
ofAmarkm Caaymc sap % 145 CWAppAth d pp. 1071.1072.)
Order DbAnglag 9u Writ ofhlandere
Case Nos. 26.27461 and 26-27534
• !
M indeperhdermly review the record td make up for appellett's faihre to cagy his birder.'"
[Cifation.j (ld at p. 114.)
In response to this argument by Real Parties, the CAPP petitioners argued at the May 14
2007 hearing in this case that the Megaplex can is procedurally distinguishable since it was up
on appeal after en initial petition for writ of mandate and that the psocedural roquirmearof
setting forth the evidence in support of the City's decision does not apply here where it is the
City's burden to show compliance with the writ of mandate.
The parties have not cited, nor has the court found arty authority specifically addressing
'be respective burdens of proof on return fimn a writ of mandate. The CEQA Guidelines require
the court to "retain jurisdiction over the public ageucy's proceedings by way ofa return to the
peremptory writ until the court has determined that the public agency has complied widr dos
division." U 21169.9.). Because the trial cow has to deterotn whether, there is compliance, it
is arguable that it is the trial wart's burden to review the entire recwd, rather than the
petitioner's burden to set forth supportive evidence.
Regardless of the applicable btudens of proof; to the extent their is a procedural
deficiency in the petitioners' challenge to the return, the court opts to overlook it and continues
on to address the: substantive issues raised by their objections.
THE 9EIM 'IONS
1. Imuff ieot Aaalyaia of Crmti x&e Impacts.
Out of die reasons the Corot of Appeal reversed the denial of the writ of mandate was
that the City had failed to adequately consider urban decay impacts in area outside the city
limits. The Addendum relied on by the City this time around rectifies that problem. The CAPP
PetitiOnm argue thaEthe Addendum is nevettheless.deficien in its analysis of die market region
cumulative impacts. Mote specifically, they allege that "die combined.effects of the planned . .
White Slough Supercenter in Vallejo [which includes another Wal-Mart Superceater
approximately 4 miles from the Projedl. the Ameicon Canyon Supercener, and the looming
closure of the cmroatVallejo Wal -Mart Discount Stop are not analyzed in the Addendum. The
co rt'disapecs. .
Contrary to petidosers' argunrern, the Addendum does address the cumulative potential
for urban decay Mridu the defined market region. Appendix E to the Addendum provides a
rather extensive analysis of the potential for sum closures resulting not just from the subject
chat Dish" Me Wdt of moodek
Cam Nix. 2627462 and 2617534.
c•d
i
Project, but also reasonably foreseeable future projects, including the proposed Vanejo Wal -Mart
Suparcenter.. The urban decay discussion is based on physical observation and derailed market
data analysis. The discussion addresses the plajmed closure of the current Vallejo wal -Mart,
which the evidence reflects is already in contract to be re- leased to the Nome Depot. The
discussion concludes that because of anticipated growth in the community and because numerous
retail categories are currently underserved in the market region, any Stores closing as a result of
Project and other planned projects will most likely be re4enaned within short periods of time,
thus minimizing any potential for urban decay. This analysis was also positively poor reviewed
by Dr. Otandier from Stanford University. .
The court fu rOw disagrees with petitioners that the market area described in the
Addendum is "inadequate and entirely subjective." The City was required to consider the
cumulative environmental impacts of otber past, present and reasonably foreseeable retail
Projects in the market area served by the proposed superaaur. (See Bakersfield CUtums for
t Ow COmm'el v. City ofBd wV%rld (2004) 124 Cal.App.41h 1184, 1218.) Page 7 of CBRE's
urban decay analysis in Appendix E explains that the expert determined the Supercenter's
market area by mapping the locations of all exisumg and planed Wal -Mart stones to determine
` from which communities people would frequent the American Canyon store. The market area
dwy determined included not only the City of American Canyon, but also the surrounding cities
of Vallejo and Benicia. Presumably, a person from m community with an existing Wel -Mar4
such as Napa or Fairfield, is not likely to drive to die American Canyon Wal -Mart. Nothing
about the market area detaminatioa.appeersto the court to be inadequate or inappropriately
subjective.
Based on the foregoing, the court finds that the urban decay aralyscs set forth in the
Addendum and Appendix E constitute relevant evidence that a reasorrahle mind could accept as
adequate to support the.conclusion that the changes in the Project wil l not result in significant
urban dway impacts requiring supplemeaW emviroaarental review. (Sce Hosford v. Slew
Persomnet Bd, supra 74 Cal.App.3d at p. 307.) .
2. Imsdegaate Tm is Analysis.
Another reason the Court of Appeal reversed the denial of the writ of mandate was that
the previous traffic analysis relied on by the City was based on inaccurate identification of the
size and type of retail proposed in the Project. The coat finis that the current traii'nc analysis is
Ordet D6dwpaj tiro WritorManAae
Case Nos. 2621462 Nd2a -M34
6
band on An accurate identification Of the size and type of all commercisi development prapow&
And the CAPP petitioners do not coated the issue.
What the CAPP petitioners do argue, however, ffi
- is that the trac analysis in the
Addendum is deficient bemuse, although it acknowledges the Proposed Chevron On Station
with 12 fading stations. it does not analyze the station's traffic generating coonlmdon. Again,
the court disagrees.
Although the written analysis does act separately discuss the impact of the Chevron (;es
Station wom the station's traffic contribution is clearly included in the overall Wculatiorn,
which am then discussed in terms of the total additional traffic contribution. And the City's
decision was not based on jug one traffic study- The Addiendum includes a traffic study by
DKS, an independent traffic study by KHA, DKS' peer review of KRA's traffic study, and
Omni- Means' peer review ot both 'DKs, traffic 9L* and KHA's trafft study. it is clarified
throughout the reports that the studies foam an The diffuerm in rmft generated find the
original project and die revised project, which replaces &a originally proposed 196,000 square
feet Of shopping earder with 173,015 of Wal-Mart Supmenter plus 13,781 square fm' of outdoor
garden center (and 7,625 square fed of outdoor seasonal mks graze); 39,225 square feet of
ShOPPUIS center, 3 SwAm bey oil change shop and 12 fueling position gas station. All three
GM)w "ties concluded that the chftQ9S to the Project would not result in significant impacts
dud were not adequately addressed in the MND.
.
The owd finds that these traffic studies and the peer reviews thereof carsduft relevant
evidence that a reasonable mind could accept as adequate to support the conclusion that the
clianges in the Project will not result in significant ftfflc impgod Fo*ddog m1pplements,
environmental Fcvicw- (Set Rolf rd Y. Swe-Personari Rd, SWPA 74 Cal.App3d at p. 307.)
I Lack of Analysis of Impods.en Climate ChgW
really. petition= argue that the Addendum is inadequate because it does not include I to
analysis of the Project's greenhouse gas emissions and global warming impacts. The oM
agape, disept&s.
In reversing On denial of the w& dw COW of Anal did WE indicne that the City had
aTcd in failing to Specifically address chmste chaW impacts. And petitioners have Wed to
Provide any authority cur=dY requiring the City to have mukrtaken such an analysis at this
stage 0f the proceedings, Nor bas the court found any such authority.
Order DwAsWMtkW,k*(MwdW
. Caw Nm 2647462 &W 2627534
..J
0
Under the writ of mandate, the City was required to comply with section 21166. Under
section 21166, the City was prohibited from requiring an E1R orattbsequent negative declaration
unless one of the three events listed in the statute has occurred. Petition= seem to be suggesting
that the now legislation AB 32 should have triggered farther review pursuant to section 21166.
However, as explained in petitioners' brI4 AB 32 simply "charges the California Air Resources
Board to develop regulations on how the state would address climate change impacts." While it
Is possible that the promalption of new climate chap regulations may trigger further
environmental review of projects undergoing section 21166 scrutiny in the future, the court fails
to see howw a mere legislative mandate for the creation of regulations could have triggered review
under section 21166 in the City's re- approval of this Project.
If petitioners are attempting to classify AB 32 as "new information" that could not have
been known, the court does not agree that it is the type of new information contemplated, by
section 21166. CEQA Guideline 15162, which augments section 21166. darif es that the "new
information" must slaw saanothing about the particular project's effu ts, i.e., that the project will
have me or mote significant effects not discussed in the previous negative declaration lVew
legislation requiring creation of state regulations certainly does not pertain to this particular
Project or its ePkct& Thus, the court concludes that AB 32 is not the kind of "new information"
contemplated by section 21166
Per these reasons, the court firms that the CAPP petitioners' objection regarding' climate
change are not well taken.
CQj CLUSION
The CAPP petitioners' objections notwithstanding, it appears to the rout that the City
has adequately complied with the writ of mandahe and :that its decision to re-approve the Project
was not an abuse of diactetion or contrary to law. Thus, the court hereby discharges the writ of
mandate and dissolves the March 20, 2007 order reconfirming the stay.
Dated: Sz�lo?
layinofid A.C3uadegni,Judge
thdw olw"ft ae writ OrMmMaa
C r hen 2627462 and 26 -27534
9
-.J
CERTIFICATE OF MAILING
Napa Courts
Civil, Probate, Crbrrh, Appeals, ftW Chime
AMERICIW CANYON COMMUNITY UNRED FOR
RESPONSIBLE GROWrK
Petitioner,
UI
CRY OF AMERICAN CANYON, BYAND THROUGH
THE C17Y COUNCIL, at aL,
DeAendaras,
LAKE STREET VENTURES, LLC, at aL,
Real Pwbn- In -InWwL
LEAD CASE NO„ 29,27182
CITl2ENS AGAINST POOR NG, et aL, CASE NO.: 2847684
pamlonem
vs.
CITY OF AMERICAN CANYON, BY AND THROUGH THE
CITY COUNCIL, at aL,
DWandanta,
LAKE STREET VENTURES, LLC, at al.;
Reel Parti ft4wMterek
Brea S. Jolley
Herum, C'aMras & am"
2291 West Mena Lane. Suite 8100
Stoddon, CA 95207
Kypros G. Hostetler
Law OMM of William D. Roes
320 South Land Avenue, Suite 300
Los ftelea, CA 90071 -2810
0
TMo0iy M. Taybr
Somach, Sknmoru & Dunn
818 Sbdh Street, Thlrd Floor
Saorarnento, CA 96814
Arthur Friedman
F Embe Mrcederoro Rkhter Center , LLP
7e' Floor
San Fmrt*c% CA 94111
V#Ilwn D. Ron
Low.OlFicere dWMam D. Rosa
520 South Grand Averwe Suite 900
Los Angeles, CA 90071 -281A
1-Aereby c orW that i am 'not a party to this cause and that copies of the attached
ORDER DISCHAROM THE VMT O MAMDATE ma8ed {ttrat class postage pry
paW to the above pestles M Napa, CaRtomia on.this. date and that thiw cermate Is
executed et Nepa, Caftmb this dabs.
=107 Pkid-n
DATE Deputy Court Executive O ffkm
2
i
4 i
EXHIBIT 9
Office of the Governor ofthe State of California • Page 1 of 2
Office of the Governor
ARNOLD
THE PEOPLE'S GOVERNORER
EXECUTIVE ORDER EXECUTIVE ORDER S -3 -05
06/01/2005
WHEREAS, California is particularly vulnerable to the impacts of climate change; and
WHEREAS, increased temperatures threaten to greatly reduce the Sierra snowpack, one of the State's primary
sources of water; and
WHEREAS, increased temperatures also threaten to further exacerbate California's air quality problems and
adversely impact human health by increasing heat stress and related deaths, the incidence of infectious disease, and
the risk of asthma, respiratory and other health problems; and
WHEREAS, rising sea levels threaten California's 1,100 miles of valuable coastal real estate and natural habitats;
and
WHEREAS, the combined effects of an increase in temperatures and diminished water supply and quality threaten [
alter micro - climates within the state, affect the abundance and distribution of pests and pathogens, and result in
variations in crop quality and yield; and
WHEREAS, mitigation efforts will be necessary to reduce greenhouse gas emissions and adaptation efforts will be
necessary to prepare Californians for the consequences of global warming; and
WHEREAS, California has taken a leadership role in reducing greenhouse gas emissions by: implementing the
California Air Resources Board motor vehicle greenhouse gas emission reduction regulations; implementing the
Renewable Portfolio Standard that the Governor accelerated; and implementing the most effective building and
appliance efficiency standards in the world; and
WHEREAS, California -based companies and companies with significant activities in California have taken
leadership roles by reducing greenhouse gas (GHG) emissions, including carbon dioxide, methane, nitrous oxide an.
hydrofluorocarbons, related to their operations and developing products that will reduce GHG emissions; and
WHEREAS, companies that have reduced GHG emissions by 25 percent to 70 percent have lowered operating eosu
and increased profits by billions of dollars; and
WHEREAS, technologies that reduce greenhouse gas emissions are increasingly in demand in the worldwide
marketplace, and California companies investing in these technologies are well - positioned to profit from this
demand, thereby boosting California's economy, creating more jobs and providing increased tax revenue; and
WHEREAS, many of the technologies that reduce greenhouse gas emissions also generate operating cost savings to
consumers who spend a portion of the savings across a variety of sectors of the economy; this increased spending
creates jobs and an overall benefit to the statewide economy.
NOW, THEREFORE, 1, ARNOLD SCHWARZENEGGER, Governor of the State of California, by virtue of the
power invested in me by the Constitution and statutes of the State of California, do hereby order effective
immediately:
http: / /gov.ca. gov / index .php ? /print- version/executive- order /1861/ 12/17/2007
Office of the Govemor of the of California • Page 2 of 2
I. That the following greenhouse gas emission reduction targets are hereby established for California: by 2010,
reduce GHG emissions to 2000 levels; by 2020, reduce GHG emissions to 1990 levels; by 2050, reduce GHG
emissions to 80 percent below 1990 levels; and
2. That the Secretary of the California Environmental Protection Agency ( "Secretary") shall coordinate oversight of
the efforts made to meet the targets with: the Secretary of the Business, Transportation and Housing Agency,
Secretary of the Department of Food and Agriculture, Secretary of the Resources Agency, Chairperson of the Air
Resources Board, Chairperson of the Energy Commission, and the President of the Public Utilities Commission; ant
3. That the Secretary shall report to the Governor and the State Legislature by January 2006 and biannually thereaftt
on progress made toward meeting the greenhouse gas emission targets established herein; and
4. That the Secretary shall also report to the Governor and the State Legislature by January 2006 and biannually
thereafter on the impacts to California of global warming, including impacts to water supply, public health,
agriculture, the coastline, and forestry, and shall prepare and report on mitigation and adaptation plans to combat
these impacts; and
S. That as soon as hereafter possible, this Order shall be filed with the Office of the Secretary of State and that
widespread publicity and notice be given to this Order.
Ibl WITNESS WHEREOF I have here unto set my hand and caused the Great Seal of the
State of California to be affixed this the fast day of June 2005.
/s/ Arnold Schwarzenegger
Governor of California
http: / /gov.ca.gov/ index .php ? /print- versiontexecutive- order /1861/ 12/17/2007
EXHIBIT 10
0
California Environmental Protection Agency
Air Resources Board
PROPOSED EARLY ACTIONS TO
MITIGATE CLIMATE CHANGE
IN CALIFORNIA
April 20, 2007
F-
L
GLOSSARY OF TERMS AND ACRONYMS
AB 32 — Assembly Bill 32, the Global Warming Solutions Act of 2006
CAT — Climate Action Team, a committee of multiple state agencies led by the Secretary of Cal /EPA
CO2 — carbon dioxide; a byproduct of fossil fuel combustion, cement production, and other natural
processes
CIE — cost effectiveness, the dollars expended per ton of greenhouse gases reduced
CNG — compressed natural gas
E -10, E-86 — blends of gasoline and ethanol consisting of 10% ethanol (E -10) or 85% ethanol (E -85)
GHG - greenhouse gas or gases; defined in AB 32 as carbon dioxide, methane, nitrous oxide,
Hydrofluorocarbons, perfluorocarbons, and sulfur hexafluoride; also known as "the Kyoto six'
GWP — global warming potential, the relative warming of a greenhouse gas as compared to carbon
dioxide which has a GWP of 1.0.
HFC — Hydrofluorocarbons; a class of compounds typically used in air conditioning systems and as
propellants
H&SC — (the California) Health and Safety Code
LCFS — Low Carbon Fuel Standard
MMTCO2E — million metric tons (of) carbon dioxide equivalent (gases)
MVAC —motor vehicle air conditioning (systems)
NMOC — non - methane organic compounds, volatile hydrocarbons that react with nitrogen oxides in the
atmosphere to form ozone; also referred to as ozone precursors
NOx — oxides of nitrogen, a combustion product that reacts with volatile hydrocarbons in the atmosphere
to form ozone; NOx is also a precursor to certain forms of particulate matter such as ammonium nitrate
and to highly irritating substances such as nitric acid mist or droplets
PFC — perfluorocarbons, a chemical mostly used in the semiconductor industry
PM — particulate matter
SF6 — sulfur hexafluoride; a chemical emitted from various industrial processes
i •
EARLY ACTIONS TO MITIGATE
CLIMATE CHANGE IN CALIFORNIA
1. SUMMARY
This document describes the Air Resources Board (ARB or Board) staffs analysis and
recommendations for discrete early action measures to reduce global warming
emissions. These measures will become part of the State's comprehensive strategy for
achieving greenhouse gas (GHG) reductions under Assembly Bill 32, the California
Global Warming Solutions Act of 2006 (AB 32 of the Act).
AB 32 creates a comprehensive, multi -year program to reduce GHG emissions in
California, with the overall goal of restoring emissions to 1990 levels by the year 2020.
(see Figure 1.) The Act recognizes that such an ambitious effort requires careful
planning and a comprehensive strategy. By January 1, 2009 the Board must design and
adopt an overall plan to reduce .GHG emissions to 1990 levels. The Board has until
January 1, 2011 to adopt the necessary regulations to implement that plan.
Implementation begins no later than January 1, 2012 and the emissions reduction target
must be fully achieved by January 1, 2020. As part of this comprehensive effort, the
Board is empowered to use traditional command and control methods and to adopt and
implement market -based compliance mechanisms provided certain criteria are met.
Alongside this deliberate approach, AB 32 recognizes that immediate progress in
reducing greenhouse gas emissions can and should be made. Accordingly, the Act
requires ARB to identify a list of "discrete early action greenhouse gas reduction
measures" by June 30, 2007 (Health and Safety Code section 38560(a)). Once on the
list, these measures are to be developed into regulatory proposals, adopted by the
Board, and made enforceable by January 1, 2010. This schedule is very accelerated
compared to most regulations developed by the Board.
The ARB received more than 70 suggestions from stakeholders for early action
measures. Those within ARB purview were carefully reviewed by staff. Those under the
jurisdiction of other agencies were forwarded to the appropriate Climate Action Team
member(s) for consideration. The suggestions covered a wide range of ideas including
a low carbon fuel standard (LCFS), replacement of hydrofluorocarbons (HFCs) in fire
suppression systems, a green ship incentive program, waste management methods,
water management methods, and renewable energy initiatives. Some of the proposed
strategies require new legislation to implement, some require subsidies, some are
already being developed, and some require additional effort to evaluate and quantify.
Two summary tables of stakeholder suggestions are attached (A — Stakeholder
Suggestions under ARB Jurisdiction and B — Stakeholder Suggestions for the CAT
Forwarded from the ARB). The ARB staff appreciates all of the suggestions that have
been received so far and looks forward to additional public comments in response to
this document.
3
0 0
Figure 1
Comprehensive Multiyear Program
Established by AB 32
mno
Vfflno
2007 2008 2009 2010
List early
actions
Mandatory
reporting
Scoping
plan
Early I
actions
effective
2011 2012 2020
GHG limits I
and measures
operative
GHG limits
and measures
adopted
Reduce GHG
emissions to
1990 levels
Staff is proposing that ARB actively pursue 36 separate measures during calendar
years 2007, 2008 and 2009 (see Figure 2 and Tables 1, 2 and 3 below).
Three new GHG -only regulations are proposed to meet the narrow legal definition of
"discrete early action greenhouse gas reduction measures° in Section 38560.5 of the
Health and Safety Code (see Table 1 - Group 1). These include the Governor's Low
Carbon Fuel Standard, reduction of refrigerant losses from motor vehicle air
conditioning maintenance, and increased methane capture from landfills. These actions
are estimated to reduce GHG emissions between 13 and 26 MMTCO2E annually by
2020 relative to projected levels. If approved for listing by the Governing Board, these
measures will be brought to hearing in the next 12 to 18 months and take legal effect by
January 1, 2010.
ARB is initiating work on another 23 GHG emission reduction measures in the 2007-
2009 time period, with rulemaking to occur as soon as possible where applicable (see
Table 2 - Group 2). These GHG measures were drawn from three separate sources.
Some were identified in the March 2006 Climate Action Team Report and are already
underway. This group also includes strategies ARB staff has identified since March
2006 — such as cooler automobile paints and tire inflation requirements — that could be
developed relatively quickly and produce significant GHG reductions. The Group 2
4
measures also reflect .stakeholder input. Group 2 measures are expected to yield at
least 20 MMTCO2E of reductions by 2020, with reductions for several measures still to
be quantified.
Finally, ARB staff has identified 10 conventional air pollution control measures that are
scheduled for rulemaking in the 2007 -2009 period (Table 3 — Group 3). These control
measures are aimed at criteria and toxic air pollutants, but will have concurrent climate
co- benefits through reductions in CO2 or non -Kyoto pollutants (i.e., diesel particulate
matter, other light- absorbing compounds and/or ozone precursors) that contribute to
global warming. These measures were drawn from ARB's annual rulemaking calendar,
ARB's Diesel Risk Reduction Plan, the Goods Movement Emissions Reduction Plan,
and the State Implementation Plan. Group 3. reductions in terms of MMTCO2E are still
being quantified.
The Group 1, 2 and 3 measures will reduce GHG emissions between 33-46 MMTCO2E
by 2020 relative to projected levels. Existing ARB regulations will contribute an
additional 30 MMTCO2E (e.g., AB 1493). These estimates exclude the benefits from
reducing diesel particulate matter, ozone precursors and other pollutants since the CO2
equivalent effects are yet to be determined. Together, these measures will make a
substantial contribution to the overall 2020 statewide emission reduction goal of
approximately 174 MMTCO2E.
ARB is not the only state agency undertaking early action measures. The Climate
Action Team has been hard at work identifying additional GHG reduction strategies that
can be accomplished or initiated in the 2007 -2009 period. Those actions are briefly
summarized in Section 6 of this report and will be described further in a separate
Cal /EPA document.
AB 32 requires that all GHG reduction measures adopted and implemented by the Air
Resources Board be technologically feasible and cost- effective. The law also requires
that GHG measures have neither negative impacts on conventional pollutant controls
nor any disproportionate socio- economic effects (among other criteria). ARB staff is
making a presumption, based on currently best available information, that all of the
measures it is proposing to pursue will meet all of the legal requirements. of AB 32. If
additional information or analysis reveals that a particular measure cannot meet one or
more of these requirements, it will not be put into effect. The actual design or features of
each measure may also change based on public comments and /or what is learned
during the regulatory development process.
5
0
E
Figure 2
Early Actions to Reduce Greenhouse Gas Emissions
ARB ADOPTED REGULATIONS.
Vehicle Climate Change Standards
Criteria and Air Toxic Controls
EARLY ACTIONS TO REDUCE GHGS
CALENDAR YEARS 2007, 2008, 2009
ARB MEASURES
GROUP
Discrete Early Action Measures .
GROUP 2
Additional Greenhouse Gas
Reduction Strategies
GROUP 3
Criteria and Air Toxic
Control Measures
CLIMATE ACTION TEAM
MEASURES
(See separate CaIIEPA report)
0
Table 1
Group 1 — ARB Discrete Early Action Measures
.Per Health & Safety Code Section 38560.5
Number
Sector
Description
2020 Reductions
(M Reductions
CO2E
1 -1
Trans ortatiorr
Low Carbon Fuel Standard LCFS
10-20
1-2
Transportation
Reduction of HFC -134a emissions from non -
professional servicing of motor vehicle air
conditioning systems MVACs
1 -2
1 -3
Waste
Improved landfill methane capture
2-4
Group 1 Total Reductions
13 -26
Notes on Table 1: Measure 1 -1 subsumes two prior measures from the March 2006 Climate Action Plan:
Alternative Fuels — Biodiesel Blends° and "Alternative Fuels — Ethanol in Gasoline" that were jointly
estimated to achieve 4 MMTCO2E by 2020.
Table 2
Group 2— Additional GHG Reduction Measures
Underway or to be Initiated by ARB in 2007 -2009 Period
2020 Reductions
Number
Sector
Description
MMT CO2E
Manure management (methane digester
1
2 -1
Agriculture
protocol)
2 -2
Agriculture
Electrification of stationary agricultural engines
0.1
2 -3
Commercial
Specifications for commercial refrigeration
>7.3
Reduction of perfluorocarbons (PFCs) from the
0.5
2-4
Commercial
semiconductor industry
Reduction of hydrofluorocarbons (HFCs) from
2 -5
Commercial
foam productionhnstallation including extruded
TBD
polystyrene and block foam
2 -6
Education
Guidance /protocols for local governments to
TBD
facilitate GHG emission reductions
2 -7
Education
Guidance /protocols for businesses to facilitate
TBD .
GHG reductions
Detection, repair, and recycling equipment for
0,7
2-8
Electricity
sulfur hexafiuoride SF
2 -9
Energy Efficient
Light-covered paving, cool roofs and shade trees
TBD
Replacement of high global warming potential
2 -10
Fire Suppression
(GWP) gases used in fire protection systems with
0.1
alternate chemical (s)
2 -11
Forest
Forest rotocol
TBD
2 -12
Oil &Gas
Reduce venting/leaks from oil and as s stems
1
2 -13
Transportation
I Strengthen light-duty vehicle standards
i 4
0 0
Table 2, continued .
Number
Sector
Description
2020 Reductions
MMT COzE
2 -14
Transportation
Heavy -duty vehicle emission reductions,
efficiency improvements
3
2 -15
Transportation
Cool automobile paints
1.2 to 2.0
2 -16
Transportation
Port Electrification
0.5
2 -17
Transportation
Transportation refrigeration, electric standby
0.1
2 -18
Transportation
Enforce federal ban on HFC release during
serviceldismantli of MVACs
0.1
2 -19
Transportation
Truck stop electrification with incentives for
truckers
TBD
2 -20
Transportation
Tire inflation program
TBD
2 -21
Transportation
Promote telework olidesfincentives
TBD
2 -22
Transportation
Require low GINP refrigerants for new MVACs
TBD
2 -23
Transportation
Add AC leak tightness test and repair to Smog
Check
TBD
Group 2 Total Reductions
19.6 to 20.4
Notes on Table 2. Some of the estimated 2020 reductions listed reflect new information and/or
refinements since the March 2006 Climate Action Report. Some measures from that Report have been
disaggregated and others have been combined based on ARB staff's preliminary assessment of how best
to proceed. Particulate matter related benefits are not included in the right -hand column since those have
yet to be quantified.
Table 3
Group 3 — ARB Air Pollution Controls for 2007 -2009 Adoption
With Potential GHG Reductions or Other Climate Co- Benefits
Number
Sector
Description
Hearing Date
3 -1
Transportation
Diesel - Commercial harbor craft rule
2007
3 -2
Transportation
Diesel — Privately owned on -road trucks
2008
3 -3
Transportation
Diesel — Vesselspeed reductions
2007 or 2008
3-4
Transportation
Diesel — Offroad equipment (non -a ricultural )
2009
3 -5
Transportation
Diesel — Port trucks
2007
3-6
Trans ortafion
Diesel — Vessel main engine fuel specifications
2008
3 -7
Transportation
Standards for off-cycle driving conditions
2007
3-8
Fuels
Gasoline dispenser hose replacement
2008
3 9
Fuels
Portable outboard marine tanks
2007 or 2008
3 10
Fuels
Evaporative standards for aboveground tanks
2007
Notes on Table 3., The CO2- equivalent emission reductions from these measures are not identified
because the science to characterize the net climate effects of particulate matter and ozone precursors is
still developing. There is reasonable expectation that these measures will yield some reductions of GHG
emissions.
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2. RECOGNITION OF VOLUNTARY EARLY EMISSION REDUCTIONS
AB 32 requires ARB to ensure that entities that have voluntarily reduced their
greenhouse gas emissions prior to the implementation of GHG emission limits and GHG
reduction measures receive "appropriate credit' for early voluntary reductions (see
Health & Safety Code section 38562(b) (3)).
To fulfill this requirement, the ARB staff is working on methods to recognize voluntary
early actions by industry, government and individuals. Staff believes that the leadership
shown by many businesses and local governments needs to be acknowledged and
supported. The first step in this effort is to quantify and document voluntary emission
reductions that rise beyond "business as usual," but this is not trivial. This verification
also needs to be based on methods that demonstrate real, permanent and surplus
(relative to regulatory requirements) GHG reductions. To get started, ARB intends to
officially review and approve sector- specific and project- specific emission calculation
protocols as they become available. Some reporting protocols have already been
published by the California Climate Action Registry and many more are in the pipeline.
ARB is also working on interim guidance for quantification, documentation and
verification of greenhouse gas emission reductions. Eventually, ARB will define the
process for translating voluntary emission reductions into creditable reductions
consistent with the broader AB 32 implementation strategy.
ARB intends to adopt rules for awarding GHG reduction credit and the process for
submitting credit requests. This regulation will be developed with .full opportunity for
public input, starting in mid -2007 with a public workshop. Staff are already considering
the criteria for receiving credit, amounts of credit given, and uses to which credits may
be applied. Issues to be explored include what types of actions count (e.g., in -state only
or out -of- state), how far back in time voluntary actions will be considered, the level of
documentation required, and criteria for determining additionality and permanence. The
parameters of the program will evolve during the regulatory development process as the
ARB gathers information about voluntary measures through workshops, public
comment, and hearings. While the ARB cannot provide precise details about how
voluntary reductions will be credited, the staff is committed to ensuring that all parties
who voluntarily reduce their GHG emissions beyond business. as usual receive
appropriate credit as required by AB 32.
3. PREVIOUSLY ADOPTED ARB REGULATIONS
Existing ARB regulations are expected to yield significant GHG reductions between now
and 2020. These include the greenhouse gas emission standards for motor vehicles
(per AB 1493, Pavley) as well as several diesel risk reduction measures. Regarding the
latter, the greatest GHG reductions are expected to come from ARB's anti - idling
controls and from the electrification of various diesel engines such as agricultural
pumps. More detail on these measures is provided below.
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3.1 VEHICLE CLIMATE CHANGE STANDARDS (AB 1493)
AB 1493, Pavley, Chapter 200, Statutes of 2002, required ARB to achieve the maximum
feasible and cost - effective reduction of greenhouse gas emissions from passenger
vehicles and light -duty trucks. These vehicle standards were adopted by ARB in
September 2004 and are scheduled to take effect in the 2009 model year. Staff
estimates an emissions savings of approximately one MMTCO2E by 2010 and 30
MMTCO2E by 2020. This analysis demonstrated that operating cost savings will more
than offset the incremental costs of improved technologies, resulting in consumer
savings of $5 billion annually by 2020. ARB's request for a federal waiver to implement
its motor vehicle regulations is currently pending before the U.S. Environmental
Protection Agency. Concurrently, ARB is defending its legal authority to impose such
standards in federal court.
AB 32 requires – should the federal waiver be denied or should ARB lose the lawsuit
brought against it by the automakers – that ARB adopt alternative regulations to control
mobile sources of greenhouse gas emissions to achieve greater or equivalent
reductions (see Health & Safety Code section 38590).
3.2 DIESEL RISK REDUCTION MEASURES
ARB has adopted numerous regulations to reduce diesel particulate matter (PM) since
2001. In addition to the direct health benefits associated with these rules, these
regulations will produce important climate protection benefits. Black carbon is a major
component of diesel PM and has a significant net warming effect. In addition, some of
the diesel rules result in fleet modernization, fuel switching, and/or greater fuel savings,
which further promote greenhouse gas emission reductions. Twenty diesel risk
reduction measures have been adopted between October 2001 and November 2006,.
including rules for low - sulfur diesel fuels, diesel truck operational idling limits, transit bus
rules, garbage truck rules, school bus replacements and retrofits, stationary diesel
engine rules, agricultural engine rules, portable engine rules and border truck inspection
protocols.
The scientific community has not yet determined the precise global warming potential
(GWP) for diesel PM as compared to carbon dioxide. Nevertheless, reductions in PM
emissions are expected to provide important near -term climate benefits. Preliminary
estimates of the 100 -year horizon global warming potential of diesel PM range from 500
to 1200 (relative to CO2). This means that 1 kilogram of diesel PM contributes much
more to global warming than 1 kilogram of CO2 over the 100 -year timeframe typically
used to evaluate climate change impacts. This is the case even though diesel PM has a
much shorter atmospheric lifetime than CO2 (weeks versus hundreds of years) and has
some components that cause cooling rather than warming of the atmosphere. Thus a
comprehensive program to address climate change will need to address a suite of
pollutants —CO2 as well as other global warming pollutants. California is well positioned
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for that eventuality, given its aggressive control programs for criteria and toxic air
pollutants.
ARB has identified and committed to additional measures that will reduce emissions of
diesel PM, as shown in Table 3. These measures are not included in Group 1 (early
action measures per Health and Safety Code Section 38560.5) because, as discussed
previously, diesel PM does not currently have a well - defined GWP and thus is not
readily incorporated into the AB 32 reduction framework. In addition, although some of
the diesel PM reduction measures will have COz co- benefits (particularly those that
reduce total fuel combustion) it may prove to be the case that they would most
effectively be implemented by entities other than the ARB. Other diesel PM reduction
measures are expected to result in a small CO2 increase. Thus, ARB determined that
these measures are not appropriate for inclusion on the Group 1 list. Nonetheless, they
are expected to result in a real -world climate benefits in the aggregate and should be
recognized as part of ARB's overall effort.
Ozone and its precursors (oxides of nitrogen and volatile hydrocarbons) are also
considered to be climate changing gases. Accordingly, ARB's efforts to control ozone
should have a beneficial climate effect. However, the science to quantify the net impact
of these pollutants on the global climate is still evolving and definitive estimates are not
possible at this time. Instead, only qualitative assessments can be made.
4. DISCRETE EARLY ACTION MEASURES
AB 32 requires that on or before June 30, 2007, ARB shall publish and make available
to the public a list of discrete early action greenhouse gas emission reduction measures
that can be adopted and made enforceable before January 1, 2010. The law further
requires that such measures achieve the maximum technologically feasible and cost -
effective reductions in GHGs from (the pertinent) sources or categories of sources, in
furtherance of achieving the statewide greenhouse gas emissions limit for 2020 (see
Health & Safety Code section 38560.5.). Elsewhere in the statute, AB 32 requires that
every GHG reduction measure adopted by ARB satisfy additional criteria such as no
relaxation in conventional air pollutant controls. ARB staff used the latter requirements
as screening criteria.
4.1 STRATEGY IDENTIFICATION
Potential Measures - To come up with a preliminary list of discrete early action
measures, ARB staff considered many information sources including:
• the Climate Action Team (CAT) Report,
• stakeholder suggestions,
• strategies identified at ARB's International Symposium on Near -Term Solutions
for Climate Change Mitigation held on March 5-7, 2007,
• ideas developed by ARB staff, and
11
• various sources of information such as the Carbon Disclosure Project, the
California Climate Action Registry, projects certified by the United Nations Clean
Development Mechanism, and compilations of cost- effective mitigation strategies
identified by international sources including the European Commission.
Screening Criteria - To select specific measures for listing as "discrete early action
measures," ARB staff applied the screening criteria below. These criteria reflect the
language in AB 32 as well as additional practical considerations. ARB staff believes a
common and objective basis is important for selecting early action measures. The
screening criteria were:
• Whether the strategy can be adopted by ARB in calendar year 2009 or earlier.
• Whether the strategy can be legally effective by January 1, 2010.
• Whether the strategy relies on readily available mature technologies or options that have
already been successfully demonstrated at an acceptable cost.
• Whether the potential lifecycle GHG emission reductions are of sufficient magnitude to
warrant the resources required to adopt and implement a regulation.
• Whether the strategy can be developed and implemented with available resources.
• The potential for adverse impacts on criteria or toxic emissions.
• The potential for disproportionate impacts on low- income communities or other
disadvantaged sectors.
• The potential for disproportionate impacts on small businesses.
• Significant loss of benefits due to leakage.
• Coordination opportunities with related actions that may have been taken or are planned
by other entities Including local agencies, the U.S. EPA, and intemational agencies such
as the European Commission.
The most important considerations to ARB staff were the potential GHG reductions
achievable by each measure and the likelihood of its being made enforceable by
January 1, 2010. To the extent possible, staff considered the maturity of the enabling
technology and the estimated cost per avoided ton of COZ equivalent emissions. GHG
reduction strategies that could potenfially interfere with conventional air pollufion
controls or have disproportionate effects were non - starters.
Technical Feasibility and Cost Effectiveness - As noted above, AB 32 requires that
each GHG reduction measure adopted by ARB be technologically feasible and cost -
effective.
"Technologically feasible" is not defined in the statute. The ARB's assessment of
technological feasibility for GHG emission reduction strategies is expected to be similar
to that which has been applied to traditional regulations: 1) a given mitigation strategy
has been successfully demonstrated in the same or very similar application; 2) a
mitigation strategy has been demonstrated in a related application such that technology
transfer is plausible; or 3) with further advances and a sufficiently ample phase -in
period, existing technologies will offer an effective mitgaton strategy.
12
The ARB interprets "cost - effectiveness" (CIE) consistent with the statutory definition in
AB 32 as the number of dollars expended per metric ton of CO2E gases reduced. The
potential cost - effectiveness of the measures assessed for early actions varies widely,
both in magnitude and in terms of certainty. When fully developed, each strategy is
expected to meet a yet- to -be- determined cost - effectiveness threshold that the Board
must establish as necessary to achieve the overall goals of AB 32 and that is equitable
relative to the GHG reduction achieved. It is premature to establish a CIE ceiling at this
time. The staffs recommendation of a proposed early action measure simply indicates
the staffs presumption that the selected strategy is or can be made to be a cost -
effective regulatory proposal for reducing GHGs.
4.2 DESCRIPTION OF SELECTED STRATEGIES
This section describes the proposed discrete early action measures in greater detail.
These measures were selected because they fully met the following criteria:
• The measure can be enforceable by January 1, 2010.
• The anticipated GHG emission reductions are of sufficient magnitude to warrant the
resources needed to design and adopt the measure.
• The measure is likely to be technically feasible and cost - effective.
• The ARB is the appropriate agency to implement the measure.
• The measure is unlikely to result in adverse impacts on criteria or toxic emissions, or
disproportionate impacts on low- income communities or on small businesses.
Low Carbon Fuel Standard - Will require fuel providers (including producers,
importers, refiners, and blenders) to ensure that the mix of fuels they sell in California
meets, on average, a declining standard for greenhouse gas emissions that result from
the use of transportation fuel.
Transportation accounts for over 40 percent of greenhouse gas emissions in California.
Reducing GHG emissions from this source category is vital in achieving the goals of the
Global Warming Solutions Act of 2006. Understanding this challenge, the Governor
signed Executive Order S -01 -07 on January 18, 2007, which established the Low
Carbon Fuel Standard (LCFS) in California. Amongst other directives, Executive Order
S -01 -07 requires ARB to consider the LCFS as part of its list of discrete early action
items for AB 32.
The LCFS as an early action would establish a "carbon content' standard for
transportation fuels linked to the fuel's impact on GHG emissions. The goal is to reduce
the "carbon intensity" of California's vehicle fuel by at least 10 percent by 2020. Carbon
intensity refers to GHG emissions per unit of energy, in units such as grams of CO2E
per British Thermal Unit, used to power a vehicle.
Currently, California relies on petroleum -based fuels for 96 percent of its transportation
fuel needs. Greenhouse gas emissions result from each step of the petroleum refining
process, from pumping crude oil out of the ground through vehicle tailpipe emissions.
The LCFS will be measured on a lifecycle basis (sometimes called "well -to- wheel" in
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reference to petroleum products) to capture all emissions from fuel consumption and
upstream processes. To reduce greenhouse gas emissions, suppliers will need to bring
lower carbon intensity fuels to the market. Lower - carbon fuels include biofuels such as
ethanol and biodiesel, as well as hydrogen, electricity, compressed natural gas,
liquefied petroleum gas and biogas.
Restrictions on High Global Warming Potential (GWP) Refrigerants -Would restrict
the use of high GWP refrigerants for non - professional recharging of leaky automotive air
conditioning systems.
Hydrofluorocarbons (HFCs) are a class of compounds that include 10 individual
substances. They are used as substitutes for chlorofluorocarbons (CFC), which were
identified as ozone depleting substances under the Montreal Protocol.. Major
applications of HFCs are in refrigeration, air conditioning, foam, solvent, aerosol
propellants and fire protection. Although they may be suitable replacements for CFCs in
terms of stratospheric ozone depletion, HFCs are potent GHGs. Specifically, HFC -134a,
used nearly universally in motor vehicle air conditioning systems, has a GWP of 1300
as compared to COZ (with a GWP of 1). The focus of this strategy is to eliminate the
unnecessary releases of HFC -134a when cans are used to recharge leaky MVACS.
However, realizing that HFC -134a cans for MVACS is not the only burden on the
environment, the proper repair of leaky MVACS during professional servicing and the
mitigation of HFC -134a impacts from other applications and products are also under
evaluation by ARB staff as part of the Group 2 strategies.
The California GHG emissions inventory suggests that high -GWP GHGs constitute
about 3.5 percent of the total CO2 equivalent emissions in 2002. Reducing some of
these compounds is the goal of a suite of strategies in the March 2006 Climate Action
Plan. Specifically, the Climate Action Plan identified five HFC reduction measures that
have total potential reductions of approximately 9 MMTCO2E in 2020. These measures
are interrelated and include:
• Mitigation of impacts of refrigerant available at retail for servicing MVACS (as
the proposed early action discussed in this section).
• Requirement of low -GWP refrigerants in new MVACS.
• Improvements in stationary refrigeration and air conditioning (RAC).
• Potential inclusion of a refrigerant leak test and repair in California's Smog
Check Program.
• Enforcement of the federal ban on release of HFCs during servicing and
dismantling of MVACS.
The discrete early action measure recommended here addresses one of the five HFC
reduction measures. ARB staff is working on the remaining measures, but needs
additional time and information to bring them to completion. In addition, the ARB is
investigating strategies targeted at the reduction of other classes of high -GWP GHGs,
namely very high -GWP ozone depleting substances, which may have significant
contributions to global warming and that present opportunities for mitigation.
14
Landfill Methane Capture - Would set statewide standards for the installation and
performance of active gas collection/control systems at municipal solid waste (MSW)
landfills.
Biological decomposition of organic waste contained in MSW landfills leads to the
production of landfill gas, consisting primarily of carbon dioxide, methane, and trace
amounts of non - methane organic compounds (NMOC). Methane is a potent
greenhouse gas having approximately 21 times the GWP of CO2. NMOCs are
precursors to ozone formation, can be toxic, and some are odorous. In some instances, .
.the gas may migrate laterally underground and accumulate in nearby structures on or
near the MSW landfill, posing as a potential fire or explosive hazard. If uncontrolled or
inadequately controlled, landfill gas eventually migrates to the surface where it could
present an odor problem or adversely impact air quality. Currently, the California
Energy Commission estimates GHG emissions from California's MSW landfills to be
approximately 8.4 MMTCO2E.
MSW landfills are regulated by local air district rules who impose federal New Source
Performance Standards and Emission Guidelines (CFR Part 60 Subparts WWW and
Cc) and the National Emission Standards for Hazardous Air Rollutants (40 CFR Part 63
Subpart AAAA). The federal regulations require emission controls when an MSW landfill
reaches a design capacity of 2.75 million tons or greater and an NMOC emission rate of
55 tons per year or more. The federal regulations apply primarily to large MSW landfills.
There are no consistent statewide standards for smaller and other uncontrolled landfills.
The proposed early action measure addresses this issue.
The California Integrated Waste Management Board ( CIWMB) estimates that about 94
percent of the total waste -in -place in California is contained in landfills having active gas
collection systems in which the gas is collected and routed to a control device, such as
a flare or engine where the methane is combusted. About 41 landfills were identified by
CIWMB as not having emissions controls. As part of the Climate Action Team's strategy
for reducing GHG emissions from MSW landfills CIWMB proposed: 1) the installation of
emission control systems, 2) increasing energy recovery from landfill methane, and 3)
increasing landfill methane capture efficiencies.. Based on the implementation of these
three strategies, CIWMB estimated total GHG emissions reductions of 1.0 MMTCO2E
for 2010 and 3.0 MMTCO2E for 2020.
Of the three landfill methane capture strategies mentioned above, the requirement for
installing emission control systems at uncontrolled landfills is being considered for a
discrete early action. In addition, ARB staff is also proposing to expand the scope of this
early action to include efficiency and emissions control resulting in total reductions on
the order of 2 to 4 MMTCO2E by 2020. In developing the control measures, ARB staff
will work closely with CIWMB staff. CIWMB is developing a guidance document for
landfill operators and regulators that will recommend technologies and best
management practices for improving landfill design, construction, operation and closure
for the purpose of reducing GHG emissions.
15
The other two strategies will require more time to implement and additional investigation
to resolve issues. To encourage the installation of landfill gas -to- energy (LFGTE)
projects, permitting, criteria pollutant offset, and landfill gas pretreatment issues must
first be addressed. In addition, the California Energy Commission is funding a study to
improve overall estimation of GHG emissions and reductions from MSW landfills. This
study is not expected to be completed until 2009. ARB staff is closely monitoring the
progress of the study and participating on the study's technical advisory committee.
4.3 PROCESS FOR GOING FORWARD
AB 32 sets two milestones for discrete early action measures. First, the Board must
approve a list of such measures by July 1, 2007. Second, the measures must be legally
enforceable by January 1, 2010 (see Health & Safety Code section 38560.5). The ARB
staff has already conducted one public workshop on proposed discrete early action
measures. A second public workshop is scheduled for April 23, 2007 in Sacramento. A
final staff report responding to the last round of public comments will be released on
May 22, 2007. The public hearing before ARB's Governing Board is scheduled for June
20-21, 2007 in Los Angeles (location TBD). Assuming the Board approves the proposed
list, staff will immediately begin the rule development process. Staff anticipates bringing
all three measures to the Board for adoption toward the end of calendar year 2008. That
will ensure sufficient time for processing through the Office of Administrative Law so that
the rules can be legally enforceable by January 1, 2010.
5. OTHER GHG MEASURES TO BE'UNDERTAKEN IN THE 2007 -2009 PERIOD
Discrete early action measures are only one part of ARB's efforts to reduce greenhouse
gases and other climate changing pollutants in the near term. ARB staff is working on
additional GHG regulations to be adopted in late 2009 or early 2010, which will just miss
the January 1, 2010 enforceability date for "discrete early action measures° in AB 32. In
addition, ARB staff are working on several non - regulatory measures such as guidance
documents and protocols to spur the public, local government and businesses into
positive action. These activities have been categorized as "Group 2" measures.
Group 2 strategies include the remaining ARB GHG reduction actions proposed in the
Climate Action Team report that were not ready for adoption as discrete early actions,
stakeholders suggestions, and new ideas identified by ARB staff. Examples of
strategies in this category include port electrification, and the use of cool materials to
increase vehicle and building energy efficiency. Staff anticipates bringing these
measures to the Board for adoption within the next three years. Some may begin
implementation as rules prior to January 2010 but many will not. Further examination by
ARB staff over the next year is expected to yield additional viable candidates for
regulatory adoption and possible candidates for non - regulatory actions that the ARB
can promote and encourage.
16
6. THE ROLE OF TRADITIONAL AIR POLLUTION CONTROLS
A number of .stakeholders have commented that ARB's conventional air pollution
controls should also be considered early action measures, even though they do not
address the specific greenhouse gases identified in AB 32. In support of this position,
stakeholders point to extensive scientific evidence that black carbon and ozone have
climate changing effects. Staff is aware of that information and agrees that conventional
air pollution controls make an important contribution to climate protection. Accordingly,
staff has listed all the pertinent ARB rulemakings for criteria and toxic air contaminants
scheduled for public hearings in 2007, 2008 and 2009 as "Group 3" measures.
Group 3 consists of regulations being developed primarily for criteria or toxic pollutant
control purposes, but that are also expected to have climate co- benefits. Such
regulations fall into two categories. The first category includes measures under ARB's
Diesel Risk Reduction Plan. Examples include proposed regulations for port trucks and
proposed requirements for the use of cleaner fuels in ocean -going vessel main engines.
The second category includes strategies expected to provide GHG co- benefits by
reducing conventional pollutants that may also contribute to atmospheric warming.
7. EARLY ACTIONS BY OTHER STATE AGENCIES
Many other State agencies are taking proactive steps. to mitigate greenhouse gas
emissions. For example, the Climate Action Team report identifies near term GHG
strategies for the Department of Food and Agriculture (e.g., enteric fermentation), the
Public Utilities Commission (e.g., California solar initiative), the Resources Agency.and
Energy Commission (e.g., municipal utility combined heat and power), the Department
of Transportation (e.g., congestion reduction measures), and many others. In addition,
stakeholders have submitted many more suggestions for potential strategies. The
proposals outside of ARB's jurisdiction were referred by ARB staff to the appropriate
Climate Action Team member or members for their consideration. A summary of those
suggestions and their current status are appended to this document as Attachment B.
Cal /EPA is currently assembling a separate document on early actions to be undertaken
by Climate Action Team members.
8. EDUCATION EFFORTS
Many stakeholders emphasized the need for expanded education and outreach efforts
regarding how the public can reduce the GHGs associated with everyday activities.
ARB agrees that well crafted public education efforts have the potential to achieve real
world emission reductions. The results of such efforts can be difficult to quantify, and at
this point ARB is not prepared to list them as °reduction measures" in the context of this
report. The ARB staff will, however, actively pursue a number of public education efforts
in coordination with CaIEPA, the Climate Action Team, and other interested parties.
Such efforts will include establishing a product labeling. program and identifying best
practices for consumers, developing California- specific GHG footprint calculators, and
exploring the development of an eco- driver training program.
17
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Attachment A
STAKEHOLDER SUGGESTIONS UNDER ARB JURISDICTION
ID No.
Description of Strategy
Status
A-1
Low carbon fuel standard
Assigned to Group 1
A-2
Reduction in emissions of HFG134a from non - professional servicing of
Assigned to Group 1
motor vehicle air conditioning systems
A-3
- Replacement of HFGs in fire protection systems
Assigned to Group 2
A-4
. Heavy-duty efficiency Improvements: energy efficient tires, improved aemdynam ics
Assigned to Group 2
A -5
Transportation refrigeration units - electric standby
Assigned to Group 2
Require that large truck stops provide electric Infrastructure, and provide incentives for
Assigned to Group 2
A-d
truck operators to use zero emitting technologies
Proposed regulation to establish allowable speeds for ocean -going vessels
Assigned to Group 3
A-7
defined in coastal waters
A-8
Proposed requirements for the use of cleaner fuels in ocean-going vessel main
Assigned to Group 3
Principles of a G02 Market: a) make the market comprehensive instead of secloral;
A-9
b) auction permits instead of giving them away to corporations; c) preserve the public
Deferred to Souping. Plan
trust aspect of the resource by including a per capita equity component
A-10
Study public trust allocation of G02 permits
Deferred to Scoping Plan
A-11
Fix price for carbon i.e. carbon tax and/or include high GWP GHGs in trading
Deferred to Scoping Plan
A -12
Waffiemal system for concrete slab foundations
Deferred to Scoping Plan
A-13
Change the price signal - suggest a vehicle license tee /car lax
Deferred to Sceping Plan
corresponding to fuel efficiency
A -14
Demonstrate use of shoreside generators as bridge to electrical hook-up
Deferred to Scoping Plan
A -15
Green ship incentive program
Deferred to Scoping Plan
Adoption of requirements for low carbon fuel vehicle sales and low carbon fuel
. Deferred to Sceping Plan
X16
infrastructure for transportation fuels and light-duty vehicles
Reduction in emissions of HFC -134a from non - professional servicing of motor vehicle
A -17
ale conditioning systems by setting up a financial incentive for consumers to recycle
Deferred to Scoping Plan
the partially -discharged refrigerant cans
Adopt requirements and incentives for truck owners and operators to
A-18
adopt °SmartWay" technology for medium and heavy -duty
Deferred to Scopirg Plan
trucks/goods movement measures
A -19
Anti-idling requirement for cargo handfing equipment al ports
Deferred to Scoping Plan
A-20
Require the electrification of airport ground support equipment
Deferred to Scoping Plan
A-21
Require the electrification of construction equipment at urban sites
Deferred to Scoping Plan
A -22
Adopt a regulation and /or incentive program to take advantage of emerging hybrid -
Deterred to Sceping Plan
electric technology for medium duty delivery trucks
A -23
Requirements for alternative fuel vehicle sales fuel distri bution
Deferred to Scoping Plan
A -24
I Ethanol imports from Brazil and biodiesel imports), could be part of the E10185
Deferred to Scoping Plan
A -1
0
0
Attachment B
STAKEHOLDER SUGGESTIONS FOR THE CAT
FORWARDED FROM THE ARB
ID No.
Applicable
Description of Proposed Early Action or Strategy
Department
Assigned
SecroHs)
Relatively inexpensive energy savings measures with short pay back times for cement industry
BTH
B-1
Cement
(e.g., encourage the use of cleaner blends of cement that are less carhoMrdensive)
Explore a greenhouse gas and mercury emission performance standard for cement facMies
B-2
Cement
equivalent to the level achievable through conversion from Mal to natural gas
BTH
(22% 1.2MMTC01E and 3045% 1200-7800 Ibs Hg par year)
B-3
Commercial
Renewable diesel fuel plant
CEC
Efficiency standards— the CEC should adapt water efficiency standards for irrigation equipment
CEC
B-4
Commercial
and for new, residential and nonresidential construction
Increase building insulation standardafnsulation improvements
CEC
B-5
Commercial
(potential incentives to solve market falses)
Application of leak detection system for locating fugitive methane leakage from gas transmission
CIWSAB
B-6
Commercial
pipes and storage device, and landfills eta
B-7
Commercial
HVAC IIM to improve efficiencies of existing and new commercial buildings
CEC
B$
Commercial
A goal to bring curbside recycling to every household (single and mutll- family) by 2010
call
B-9
Commemial
A goal to require commercial enterprises to obtain recycling services by 2010
CWMB
Material specific disposal Irons to require all Californians to limit their disposal of recyclable
B-10
Commercial
materiels such as cardboard. paper, or construction and demolition debris, regardless of whether it
CpN1118
is collected by a refuse company or sell-hauled to the landfill
Embedded Energy - The CPUC should allow investor -owned energy uttikles to invest in water use
CEC
B-11
Commercial
effcency measures as a way to reduce the associated energy use
B-12
Commercial
Mandatory fiwniscent light bulbs (e.g.. Australia)
CEC
B-13
Commercial
Ban of sales of incandescent tight bulbs
CEC
B-14
Commercial
Ice Bear peak power demand etrMlg techrologyfor AIC
CEC
B-15
Commercial
Free provision and installation of solar panels for residential and commercial buildings
CEC
Biogas (anaerobic digestion) technology: capture off-gases from covered lagoons (e.g., asides),
CEC
B-16
Commercial
plug flow, or complete ml operations for in -site power generation purpose
B-17
Commercial
Increase average thermostat temperature to reduce AIC use
CEC
Urban CeAifcation - The Department of Water Resources (DWR) should establish an urban
8.18
Commecial
certification program to assure compliance with urban water conservation Best Management
DWR
Practices (BMPs) contained in the Memorandum of Understanding (MOU) regarding urban water
conservation in Caliromia
Water measurement • The Department of Water Resources should create a water use database
DWR
B-19
Commercial
and a system for reporting water deliveries and diversions
CEC adoption of regulations to implement Senate Bill 1368's greenhouse gas emissions
CEC
B-20
Electricity
performance standard for new long-term commitments to baseload genereion
B-21
Electricity
Renewable power
CECfCPUC
B-22
Electricity
Better incentives for renewable energy
CECICPUC
B-23
Electricity
Incentin im community choice aggregation with high RPS
CPUC
&27
Electricity
.. From net- metering to sole compensation
CEC
8-28
Electricity
Increased damandsideananagement(OSM) for power
CECICPUC
0
7
Attachment B
STAKEHOLDER SUGGESTIONS FOR THE CAT
FORWARDED FROM THE ARB
ID No
Applicable
Description of Proposed Early Action or Strategy
Department
Assigned
Sector(s)
B -29
Electricity
Stmamfne/rstebase transmission investments from renewable power rich areas
CECICPUC
(Tehachapi, Imperial Valley, etc...) ,
Forests (encourage reforestation): promote sustainable forestry, ban clear cubing, enforce higher
Ca1Fire
B-30
Forest
restocking ratios, and incentivae better forest practices
B31
Forest
Thin National Forests to encourage growth and increase carbon uptake by fever trees
CaIFIre
a) Begin the process for reviewing and adopting the Registys forest Protocols
B-32
Forest
b) Recognize the early actions of Registry members
CaIFIreIARB
c) Coordinate with odw agencies with jurisdiction over forest and land-based activities to develop
guidelines and accounting methods for achieving reductions from the forest sector
B33
Industry
Reduced fouling and improved efficiencies of large water - cooled systems (chemical + biocide)
CEC
B34
Multiple
Water and climate- encourage local actions
DWR
B35
Multiple
State support for local efforts
ARB
Streamline reporting for small factlbles- suggest a stepped approach to include small emitters in
ARB
8 -311
Multiple
CA Climate Action, Registry
UNDER REVIEW BY
B-37
Multiple
Help local agencies avoid `Death by Success'
THE CAT
B38
Multiple
GHGs in General Plans and CEOA
ARB/Resources
UNDER REVIEW 8Y
B49
Other
Technology gram program for reducing GHGs
THE CAT
B40
Residential
Standards for stand by electric use (for appliances that are plugged in, using less electricity)
CEC
B41
Residential
Water conservation
DWIUCECfCPUC
B42
Residential
Water supply planning
DWR
B43
Residential
Water re -use
DWIUSWRCB
B44
Transportation
Improve transportation system efficiency
BTWCalTrans
845
Transportation
Increased public transport
BTH
B46
Transportation
Transportation pricing policies
CEC
CEC adoption of minimum tire efficiency standards pursuant to AB 844 for transportation fuels
CEC
B47
Transportation
and fight- dutyvehicles
Bog
Transportation
Entry es tot anversm conga .g. ; mum be coupled Iman good Public
CECIARB
•- As of March 2, 2087. The majority of the suggestions were provided at the January 22, 2007 ARE Public Workshop on Discrete Early Actions.
'• - Carrmns = California Department of Transportation; CEC - California Energy Commission; CNYMB = California Integrated Waste Management
Board; CPUC = California Public Utilities Commission; CDFFP = California Department of Forestry and Fire Protection; DWR = Department of Wooer
Resources; DTSC = Department of Toxic Substances Control; OEHHA = Office of Environmental Health Hazard Assessment; WRCS = Water
Resources Control Board
ME
EXHIBIT I I
Staff Report
California 1990 Greenhouse Gas Emissions Level
and 2020 Emissions Limit
Public Release Date:
November 16, 2007
This document has been prepared by the staff of the California Air Resources
Board. Publication does not signify that the contents reflect the views and
policies of the Air Resources Board. The Air Resources Board will consider this
document at a noticed public meeting tentatively scheduled for
December 6 -7, 2007.
Primary Author
Jamesine Rogers
Contributina Authors
Kevin Eslinger
Larry Hunsaker
LinYing Li
Neva Lowery
Johnnie Raymond
Klaus Scott
Marc Vayssieres
Reviewed by:
Webster Tasat, Manager, Emission Inventory Analysis Section
Richard D. Bode, Chief, Emission Inventory Branch
Linda C. Murchison, Ph.D., Chief, Planning and Technical Support Division
Lynn M. Terry, Deputy Executive Officer
Supporting Divisions
Planning and Technical Support Division
Research Division
Stationary Source Division
Acknowledgements
Staff of the Air Resources Board wishes to express their appreciation to the
many stakeholders that were an integral part of developing the 1990 emissions
level through workshops, technical discussions, and conference calls. The
following organizations in particular were critical to the success of this effort, both
in their technical advice and their constructive participation throughout the
process: California Energy Commission; California Integrated Waste
Management Board; California Public Utilities Commission; California
Department of Forestry & Fire Protection.; U.S. Environmental Protection Agency;
U.S. Energy Information Administration; U.S.D.A. Forest Service; California
Climate Action Registry; Lawrence Berkeley National Lab; University of
Califomia- Berkeley; Western States Petroleum Association; Waste Management,
Inc.; Los Angeles County Sanitation District; Portland Cement Association;
Californians Against Waste; Natural Resources Defense Council; Environmental
Defense; and, Sacramento Municipal Utilities District.
0
Staff Report
0
California 1990 Greenhouse Gas Emissions Level
and 2020 Emissions Limit
TABLE OF CONTENTS .
EXECUTIVE SUMMARY
1- STAFF RECOMMENDATION 1
tl- BACKGROUND 1
III. OVERVIEW OF DEVELOPMENT OF THE 1990 EMISSIONS
A.
Which gases are included? ....................................................................
B.
Which global warming potentials are used?-------------------------------- •- - - -
- -3
C.
What types of emissions are included? ................................ _ ..............
4
D.
What key sectors and categories were reviewed and updated ? -
- -5
E.
How does the proposed 1990 emissions estimate differ from
previous California estimates?
8
F.
Is the inventory consistent with international and national
guidelines? .................................................. ...•--•--• •----•-- -•--•--•------•------•---•----9
G.
What was the review and update process? .........................................
11
H.
What was the public process? .................... ------------- •--•--•--•---•--•----------•
-11
I.
What issues were raised in the public process? ,----------- •--- •-- •-------- - -•_11
J.
What documentation is available on the methods used to
quantify the emissions estimates? ........................................................
12
IV- ESTIMATING THE 1990 EMISSIONS LEVEL 13
A. Emissions estimates and quantification methods for key
sectors and categories. 15
B. Emissions estimates for other sectors 25
V. PRELIMINARY 2020 GREENHOUSE GAS PROJECTIONS 26
VI- CONCLUSIONS
VII- REFEREN
.List of Appendices
Appendix A -1.
1990 1'nventory by IPCC Summary Categories
Appendix A -2.
1990 Inventory by IPCC Category
Appendix B.
Carbon Flux Table and Diagram
Appendix C.
California Global Warming Solutions Act of 2006
List of Tables and Fissures
Tables
Table 1. Global Warming Potentials (GWPs) IPCC Second Assessment Report
(SAR)
Table 2. Greenhouse Gas Emissions by Sector in 1990 (433 MMTCO2e Gross
Emissions)
Table 3. Greenhouse Gas Emissions by Sector in 2004 (484 MMTCO2e Gross
Emissions)
Table 4. Differences in ARB and CEC 1990 Emissions Estimates for Sectors
and Key Categories
Table 5. Emissions Inventory Categories within Each Sector
Figures
Figure 1. 1990 Gross Emissions by Greenhouse Gas
Figure 2. 1990 Greenhouse-Gas Emissions by Sector (427 MMTCO2e Net
Emissions)
Figure 3. 2004 Greenhouse Gas Emissions by Sector (480 MMTCO2e Net
Emissions)
EXECUTIVE SUMMARY
The Global Warming Solutions Act of 2006 (the Actor AB 32, Nunez, Statutes of
2006, chapter 488) requires the Air Resources Board (ARB or Board) to
determine the statewide greenhouse gas emissions level in 1990 and to approve
a statewide greenhouse gas emissions limit, equal to that level, to be achieved
by 2020. ARB staff is recommending that the Board approve 427 million metric
tonnes of carbon dioxide equivalent (MMTCO2e) as the total statewide
aggregated greenhouse gas 1990 emissions level and 2020 emissions limit:
This staff report discusses the development of the 1990 statewide emissions level
and provides a summary of the key emissions sources, the methodologies used to
calculate the emissions, and the sources of data. More detailed documentation is
provided on -line at hftp://www.arb.ca.gov/r-c/ccei/emsinv/emsinv.htm.
The Act establishes a comprehensive program to reduce greenhouse gases by
2020 and identifies several major requirements that ARB is or will be
implementing:
• Adopt and implement a list of discrete and early action greenhouse gas
reduction measures (done);
• Approve a statewide 1990 emissions level that becomes California's
statewide 2020 emissions limit (due January 2008);
• Adopt mandatory greenhouse gas reporting rules for significant
greenhouse gas sources (due January 2008);
• Adopt a Scoping Plan for greenhouse gas emission reductions to achieve
the 1990 emissions level by 2020 (due January 2009); and,
• Adopt emission regulations to achieve the maximum technologically
feasible and cost - effective reductions.
In January 2007, Assembly Bill 1803 transferred responsibility for developing and
maintaining the State's greenhouse gas inventory from the California Energy
Commission (CEC) to ARB. Using the CEC greenhouse gas inventory as a
starting point, ARB staff determined the State's 1990 greenhouse gas emissions
level by conducting a comprehensive review of all greenhouse gas emitting
sectors. The seven sectors are: Transportation, Electricity Generation, Industrial,
Residential, Agriculture, Commercial, and Forestry.
ARB staff gathered data from State and federal agencies, international
organizations, and California industries to estimate the total statewide 1990
greenhouse gas emissions level. Californ ia facility- specific information for 1990
emissions was used where available.
Upon approval by the Board, the 1990 emissions level becomes the 2020
emissions limit, which represents an aggregated emissions limit for California.
For purposes of the AB 32 Scoping Plan, it serves as the target to be achieved
by 2020.
For purposes of Scoping Plan development, ARB staff has estimated the State's
greenhouse gas emissions in 2020 without the implementation of additional
greenhouse gas reduction strategies. This 2020 "business -as- usual" estimate is
approximately 600 MMTCO2e and is based on economic forecasts that use
growth factors to project emissions. The difference between the 2020 business -
as -usual estimate and the 1990 emissions level is California's emission reduction
goal. The 2020 business -as -usual forecast will be further refined as the Scoping
Plan is developed.
The 2020 emissions limit, as defined by the 1990 emissions level, remains in
effect until amended by the Board. If additional information becomes available
that would significantly alter the total emissions for 1990, staff will bring a revised
1990 emissions level back to the Board for consideration.
ii
0 •
I. STAFF RECOMMENDATION
The Global Warming Solutions Act of 2006 (AB 32, Nunez, Statutes of 2006,
chapter 288) requires the Air Resources Board (ARB or Board) to approve by
January.l, 2008, the statewide greenhouse gas emissions limit for 2020 based
on the 1990 emissions level. Over the past year, ARB staff has undertaken a
comprehensive review and update of the 1990 emissions estimates using the
best available scientific, technical, and economic information. These emissions
estimates were developed through an extensive public process, including
technical workshops.
ARB staff has estimated the statewide 1990 emissions level to be 427 MMTCO2e
and is recommending the Board approve this level as the statewide 1990
greenhouse gas emissions level to be achieved by 2020. Once adopted, the 2020
emissions limit will remain in effect until amended. If new information becomes
available that would significantly alter total emissions for 1990, staff will bring a
revised 1990 emissions level to the Board for consideration.
II. BACKGROUND
The.Global Warming Solutions Act of 2006 (the Act) establishes a
comprehensive program to realize real, quantifiable, and cost- effective
reductions in greenhouse gas emissions by 2020. The Act directs ARB to:
• Adopt and implement a list of discrete and early action greenhouse gas
reduction measures (done);
• Approve a statewide 1990 emissions level that becomes California's
statewide 2020 emissions limit (due January 2008);
• Adopt mandatory greenhouse gas reporting rules for significant
greenhouse gas sources (due January 2008);
• Adopt a Scoping Plan for.greenhouse gas emission reductions to achieve
the 1990 emissions level by 2020 (due January 2009); and,
• Adopt emission regulations to achieve the maximum technologically
feasible and cost- effective reductions.
This staff report discusses the development of the 1990 emissions level that sets
the statewide greenhouse gas emissions limit for 2020. It is an aggregated
statewide limit that provides the target level that must be achieved through
regulatory measures, market mechanisms or other actions that will be contained
in the Scoping Plan. The Scoping Plan is scheduled to be taken to the Board in
late 2008.
III. OVERVIEW OF THE DEVELOPMENT OF THE 1990 EMISSIONS LEVEL
The statewide 1990 greenhouse gas emissions level of 427 MMTCO2e is based
on the net amount of greenhouse gases emitted to and removed from the air.
The gross statewide emissions in 1990 were 433 MMTCO2e with forestry sinks
offsetting approximately 7 MMTCO2e, resulting in net emissions to the
atmosphere of approximately 427 MMTCO2e (see Table 2). The 1990 emissions
level is a compilation or inventory of the amount and type of greenhouse gases
emitted by different sources on an annual basis. In addition to setting California's
1990 emissions level and 2020 emissions limit, ARB now has overall
responsibility for the State's annual greenhouse gas emissions inventory.
In September 2000, the Legislature passed Senate Bill 1771. It required the
California Energy Commission ,(CEC) to determine the statewide greenhouse gas
emissions inventory by January 2002 and update it every five years thereafter.
In 2006, Assembly Bill 1803 transferred responsibility for updating the statewide
greenhouse gas inventory to ARB commencing January 1, 2007.
In January 2007, ARB staff began an intensive review of the CEC's California
greenhouse gas emissions inventory for the years 1990 to 2004, with particular
focus on the 1990 emissions estimates. Staff has updated and evaluated the
1990 emissions inventory and ensured its consistency with national and
international guidelines for greenhouse gas inventories.
The remainder of this section summarizes the key components of the 1990
emissions inventory. A supplemental document titled "California Greenhouse
Gas Emission Inventory, 1990 to 2004" will discuss emissions estimates for 1990
to 2004.
A. Which oases are included?
Pursuant to the Act, the inventory includes the following Kyoto greenhouse
gases: carbon dioxide (CO2), methane (CH4), nitrous oxide (N20), sulfur
hexafluoride (SF6), hydrofluorocarbons (HFCs), and per Fluorocarbons (PFCs).
These greenhouse gases are referenced in the international guidance on the
.development of national inventories provided by the Intergovernmental Panel on
Climate Change (IPCC), the authoritative scientific body on climate change.
The greenhouse gases included in the inventory absorb infrared radiation,
directly impacting the atmosphere's ability to trap heat. Three of these
greenhouse gases, CO2, CH4, and N20, may be emitted naturally or through
human activities (e.g., the combustion of fossil fuels). The other three, SF6,
HFCs, and PFCs, are synthetically produced for industrial purposes.
0 0
Almost 90 percent of the total greenhouse gas emissions in the 1990 inventory
were in the form of CO2, as shown in Figure 1. Carbon dioxide accounted for
389 MMTCO2e of the total statewide gross greenhouse gas emissions of
433 MMTCO2e. Gross greenhouse gas emissions estimates only include the
greenhouse gases emitted to the atmosphere, and exclude removals from the
atmosphere. The remaining emissions were comprised of CH4, N2O,
halogenated gases (including substitutes for ozone - depleting substances (ODS)),
and SF6. Methane and N2O emissions totaled 24.9 MMTCO2e and
16.1 MMTCO2e, respectively. Emissions of SF6 were 2.6 MMTCO2e.
Halogenated gas emissions were minimal in 1990, estimated at approximately
0.6 MMTCO2e. Many of the halogenated gases are substitutes for ODS, which
are being phased out under the Montreal Protocol on Substances that Deplete
the Ozone Layer. Because the Montreal Protocol came into force only shortly
beforehand in 1989, emissions of ODS substitutes were relatively small in 1990.
Figure 1.1990 Gross Emissions by Greenhouse Gas
CH4
6%
B. Which atobal warmina.Potentials are used?
Halogenated
gases
<1%
SF6
1%
Each greenhouse gas has a different capacity to trap heat in the atmosphere,
with some more effective at trapping heat than others. To account for this
difference, IPCC developed the metric of a global warming potential (GWP) for
each gas. The GWP allows comparison of the global warming influence of
different greenhouse gases relative to CO2. Total greenhouse gases can then
be expressed as CO2 equivalents or CO2e.
In developing the greenhouse gas inventory for 1990, staff used the GWPs in
IPCC's Second Assessment Report for consistency with national and
international inventories. All international inventories, including the U.S.
inventory, use GWPs from the Second Assessment Report per international
consensus (USEPA 2007). The GWPs used to estimate the 1990 emissions
level are referenced in Table 1.
Table 1. Global Warming Potentials (GWPs)
IPCC Second Assessment Report (SAR)
Greenhouse Gas
SAR GWP 100 years
CO2
1
CH4
21
N20
310
HFC -23
11,700
HFC -125
2,800
HFC 134a
1,300
HFG-143a
3.800
HFG-32
650
CF4
6 500
C2F6
9,200
SF6
23,900
Source: IPCC Second Assessment Report
Since GWPs are indexed to CO2, they allow for the conversion of different
greenhouse gas emissions into the same emission unit, carbon dioxide
equivalents (CO2e). Carbon dioxide equivalents represent the total impact
(radiative forcing) of greenhouse gases in the atmosphere, making it possible to
determine the climate change impact of one greenhouse gas versus another.
The 1990 greenhouse gas emissions level is expressed in total CO2e. It is
calculated as follows:
CO2 Equivalent in million metric tonnes =
(Million metric tonnes of a GHG emitted )"(GWP of the GHG)
C. What types of emissions are included?
The inventory includes emissions of the six greenhouse gases from all known
anthropogenic and biogenic sources within California, as well as emissions from
imported electricity and transmission and distribution line losses as required by
the Act. The total emissions for any given year is the net sum expressed in
CO2e emissions to the atmosphere ( "positive" emissions) and removals from the
atmosphere ( "negative" emissions) due to sequestration of carbon by forests and
rangelands within the State's boundaries.
Anthropogenic emissions are emissions resulting directly from human activities,
such as the combustion of fuels in transportation and industrial activities, as well
as process emissions from industrial activities. They are also the result of human
influence on natural processes and processes subject to human control. The
burning of fossil fuels is the largest single source of anthropogenic greenhouse
gas emissions in California. Because increases in anthropogenic greenhouse
0 0
gas emissions have substantially increased atmospheric greenhouse gas
concentrations, anthropogenic emissions are the primary focus of the inventory
(IPCC 2007).
Biogenic emissions are emitted as part of the natural biogeochemical cycling of
carbon. These emissions include, for.example, CO2 released as plants
decompose or bum. Natural processes, such as photosynthesis, remove CO2
from the atmosphere and may store carbon in plant tissues for long periods of
time (sequestration). In the 1990 inventory, forest - related biogenic emissions
and removals are tracked in the Forestry sector. The difference between the
biogenic CO2 emissions to and removals from the atmosphere, known as the net
flow of atmospheric CO2, indicates whether Forestry is net source or sink of
CO2. Biogenic CO2 flux estimates, or the net flow of atmospheric CO2, are
detailed in Appendix B.
D. What kev sectors and categories were reviewed and updated?
The 1990 emissions level is the sum total of emissions and removals from all
sectors and categories in the inventory. The inventory is divided into seven
broad sectors defined by areas of economic activity within California. These
sectors include: Agriculture; Commercial; Electricity Generation; Forestry;
Industrial; Residential; and, Transportation. Each sector contains different types
of emission sources called categories. For example, the Industrial sector
contains the cement, landfills, and petroleum refining categories. Roughly
85 percent of California's greenhouse gas emissions in 1990 can be found in
three sectors: Electricity Generation, Industrial and Transportation.
Staff primarily focused their review and update efforts on five sectors
(Agriculture, Electricity Generation, Forestry, Industrial, and Transportation) and
three categories within the Industrial sector (cement, landfills, and petroleum
refining). Emissions from all seven sectors are listed below in Table 2 and Figure
2. A detailed discussion of the review of the seven sectors is described in
Section IV.
0 0
Table 2. Greenhouse Gas Emissions by Sector in 19901
(433 MMTCO2e Gross Emissions)
Sector
Total Emissions
MMTCO2e
Percent of Total
Gross Emissions
Agriculture
23.4
5%
Commercial
14.4
3%
Electricit Generation
110.6
26%
In -State
49.0
11%
Imports
61.6
14%
Forest (excluding sinks )
0.2
<1%
Industrial
103.0
24%
Cement
8.1
2%
Landfills
6.3
I r
Petroleum Refining
32.8
8%
Residential
29.7
7%
Transportation
150.7
35%
Forestry Sinks 1 -6.7
Figure 2.1990 Greenhouse Gas Emissions by Sector
(427 MMTCO2e Net Emissions)
Raskh
79
cores r is
3%
Ele Wvty Garreratior
OI SWO
11%
Elec fty
(Im,_. —,
14%
Transpwiaifon
Agnaftn
5%
trial
36
The majority of 1990 emissions are tied to fuel use activities, ranging from
transportation to electricity generation to heating buildings. In fact, emissions
from fuel combustion comprise more than 80 percent of overall 1990 statewide
1 The remaining 1.3 MMTCO26 are from unspecified fuel combustion and ODS substitute use,
which could not be attributed to an individual sector. Percents may not total 100 due to rounding.
z Percents do not total 100. Less than one percent of the inventory is due to unspecified fuel
combustion and ODS substitutes, which is not attributed to an individual sector (1.3 MMTCO2e in
1990).
greenhouse gas emissions. The primary fuels combusted were natural gas and
gasoline .3 In -state Electricity Generation, Residential and Industrial sectors
accounted for almost 90 percent of the natural gas combusted statewide in 1990,
while the Transportation sector consumed almost all (98 percent) of the State's
gasoline.in 1990.
California's economy and population have grown since 1990, resulting in
increases in greenhouse gas emissions for some sectors. Table 3 and Figure 3
reflect the relative contributions of each sector to the State's overall greenhouse
gas emissions in 2004.
Table 3. Greenhouse Gas Emissions by Sector in 2004"
(484 MMTCO2e Gross Emissions)
Sector
ons
e
Percent.of Total
Gross Emissions
Agriculture
6°/E
Commercial
10.2
3%
Electricity Generation
25%
In -State
12%
Imports
13%
Forestry (excluding sinks
<1%
Industrial
96.2
20%
Cement
9.8
2%
Landfills
5.6
1%
Petroleum Refining
34.9
7%
Residential
29.1
6%
Transportation
182.4
38%
Forestry Sinks -4.7
' Comparison among fuels uses heat content (e.g., BTUs /scf natural gas: BTUstgal gasoline) as a
common metric among different fuels. Heat content factors are primarily from the California
Energy Balance (CALEB) database, EIA and U.S. EPA.
° The remaining 16.0 MMTCO2e are from unspecified fuel combustion and ODS substitute use,
which is not attributed to an individual sector. Percents may not total 100 due to rounding.
0 0
Figure 3. 2004 Greenhouse Gas Emissions by Sectors
(480 MMTCO2e Net Emissions)
Residential
6%
comma fal
3%
Bl tacdy Generagan
(Iee)
,2%
Electricity Generation
(Imports)
13%
E.
Agriculture
6%
Tmnsportatwn
36%
IndustrW
20%
The 1990 emissions level is based on the most recent data and methodologies
available. The CEC and Climate Action Team (CAT) also produced estimates of
the 1990 emissions level based on the best available data at the time their
estimates were made. The CEC estimated the level to be 413 MMTCO2e
(duVair 2007). Per Executive Order S -3 -05, the CAT, which is made up of
representatives from several state agencies, was required to implement
greenhouse gas emission reduction programs and report on the progress made
toward meeting the statewide targets specified in S -3 -05. The CAT sponsored
development of a 1990 level using similar estimation methods and data sources
to the CEC, with some slight differences in the input data. The CAT's estimated
1990 level was 426 MMTCO2e, which is similar to ARB's updated 1990 level
(CAT 2006).
Staff was able to characterize the CEC inventory using similar sectors and
categories as the ARB inventory. However, it was not possible to do this same
characterization with the available inventory information from the CAT report.
Table 4 therefore presents a comparison of only the ARB and CEC inventory
emissions estimates.
s Percents do not total 100. Roughly three percent of the inventory is due to unspecified fuel
combustion and ODS substitute use, which is not attributed to an individual sector (16.0
MMTCO2e in 2004).
0 0
Table 4. Differences in ARB and CEC 1990 Emissions Estimates
for Sectors and Key Categories
Sector
1990 Emissions (MMTCO2e)
ARB
CEC
Agriculture
23.4
31.1
Commercial
14.4
15.3
Electricity Generation
110.6
89.2
In -State
49.0
45.2
imports
61.6
44.0
Forest (excluding sinks
0.2
0.2
Industrial
103.0
79.5
Cement
8.1
4.8
Landfills
6.3
8.1
Petroleum Refinln
32.8
27.9
Residential
29.7
29.6
Transportation
150.7
177.8
While the numbers are similar, these estimates have important differences.
Emissions from individual sectors differ between CEC and ARB estimates by up
to 30 percent due to updated data, methodologies, and differences in included
and excluded emissions. Staff treated carbon stored in landfills differently than
CEC by separately tracking stored carbon instead of considering it an emission
sink within a landfill. In addition, the ARB estimate only includes intrastate
aviation, whereas the CEC and CAT estimates include both interstate and
intrastate flights. Staff also included emissions from international shipping and
related port activities in California waters, whereas the CEC and CAT excluded
all emissions from international ships. If ARB treated these sectors in the same
manner as the CEC, an additional 7 MMTCO2e would be added to the updated
1990 emissions level.
Additional details on differences between the CEC's and ARB's estimates of
1990 emissions are described in Section IV of the report.
F. Is the inventory consistent with international and national Guidelines?
The 1990 California inventory is consistent with international and national
guidelines and protocols to the greatest extent possible. Consistency maximizes
the comparability of the.inventory with inventories from other.states and nations.
This is important to facilitate the future linkage of California's program with
regional, national, and. international greenhouse gas emission reduction
programs.
IPCC develops the standard international guidance for emissions inventories.
Nations that have adopted the United Nations Framework Convention on Climate
Change must prepare and report their emissions and sinks of CO2, CH4, N2O,
0 1 0
SF6, PFCs, and HFCs using IPCC methodologies to ensure comparability
among national inventories.
The IPCC guidelines delineate the sectors and processes for which nations must
report their anthropogenic emissions and sinks, and 'how they should report
these emissions. They also describe different methodologies to estimate both
emissions and uncertainties, depending on the available . data sources. The
guideline documents include: The Revised 1996 IPCC Guidelines for National
Greenhouse Gas Inventories (IPCC /UNEP /OECD /IEA 1997); Good Practice
Guidance. and Uncertainty Management in National Greenhouse Inventories
(IPCC 2000); and, Good Practice for Land Use, Land -Use Change and Forestry
(IPCC 2003), among others. IPCC recently published updated guidelines to
incorporate new sources, additional greenhouse gases, and improved
methodologies, 2006 Guidelines for National Greenhouse Gas Inventories
(IPCC /UNEPNVMO 2006). .
The U.S. EPA is the lead agency for preparing and developing the national
greenhouse gas inventory. The U.S. EPA supplements the widely applicable
IPCC methodologies with more U.S. - specific and /or updated methodologies and
data as feasible, and uses published emission factors and activity data when
available.
ARB staff used the IPCC guidelines for its overall approach and sector -speck
guidance in developing the 1990 inventory. The guidelines allow for use of state -
specific data and methodologies rather than the more generic international ones
when available. Staff used California - specific data and methodologies, as
appropriate.
International guidance also recommends excluding bunker fuel emissions for all
international aviation flights and marine vessel voyages from emissions
inventories (IPCC /UNEPNUMO 2006). In.an effort to be consistent, we propose
to exclude these emissions from the 1990 emissions level, with the exception of
marine bunker fuel use in California waters. As discussed above, we are also
proposing to exclude greenhouse gas emissions from interstate flights, which is
consistent with the international approach of including only those flights within a,
jurisdiction's borders.
California's inventory differs from the IPCC guidelines and U.S. EPA greenhouse
gas inventory in two ways. The Act requires that ARB include imported electricity
in the 1990 inventory. International and the U.S. inventories do not. The
proposed inventory also contains emissions from all ships, including
intemaflonally- flagged ships, occurring within California waters provided that
either their origin or destination is a California ports
6 For purposes of calculating emissions from ships, California waters extend to 24 nautical miles
from the coast.
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G. What was the review and update process?
Staff updated the inventory through an extensive process to ensure inclusion of
the.best available economic, technological, and scientific data. The process
began when ARB received the statewide greenhouse gas inventory from the
CEC in December 2006 per Assembly Bill 1803. CEC staff had developed a
comprehensive detailed inventory of statewide greenhouse gas emissions for
1990 through 2004 (CEC 2006). ARB staff devoted eight months to an extensive
review of this inventory, including the data sources and methodologies used for
each sector and category. The process focused on four sectors (Agriculture,
Electricity Generation, Forestry and Transportation) and three categories in the
Industrial sector (cement, landfills, and petroleum refining). Staff made updates
and improvements to the data, methodologies, and calculations in consultation
with agencies and stakeholders to ensure use of the best data and
methodologies and consistency with international and national guidelines.
H. What was the public process?
The review and update process included four public workshops and nine
technical discussions on the inventory. Staff held an initial workshop in late
2006, a preliminary technical discussion in early 2007, a workshop on updates in
June 2007, and a workshop to discuss the draft inventory in August 2007. There
have also been several technical workgroups on the emissions estimates
associated with electricity generation, cement, landfills, and petroleum refining in
conjunction with the development of the mandatory reporting regulation for
greenhouse gases.
I. What issues were raised in the public process?
Although many topics were discussed during workshops and technical
discussions, three were particularly challenging when developing the 1990
inventory: forestry, landfills, and electricity generation.
Forestry. The 1990 forestry emissions estimate uses data on greenhouse gas
emissions and sinks estimated by the CEC, which are based on the results of a
remote - sensing and GIS -based analysis of forest data. These data represents
the best available, peer- reviewed data for the Forestry sector. During the public
review of the greenhouse gas emissions data for forestry, the U.S. Department of
Agriculture — Forest Service (USDA -FS) developed a draft inventory of carbon
sequestration for national forests using a different methodology. The California
Department of Forestry and Fire (CaIFIRE) and the USDA -FS believe the CEC -
based methodology used to calculate forest carbon sequestration may
underestimate the amount of vegetation statewide, and therefore underestimate
CO2 sinks. ARB has formed an interagency workgroup with participants from
CaIFIRE and USDA -FS, as well as CEC and U.S. EPA, to investigate these
additional data sources and methods. The results will be incorporated in future
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greenhouse gas emissions estimates and included in the Scoping Plan process
as available.
Landfills. The landfill industry requested that staff alter the inventory
methodology to count the carbon stored in landfills in the form of wood products
and other carbon - bearing material as a sink when defining the 1990 level. Staff
acknowledges that carbon is stored in landfills. However, the inventory
methodology recognizes carbon sequestration at the point where carbon is
removed from the atmosphere (i.e., photosynthesis in living vegetation).
Counting it again when wood products are stored in landfills would constitute a
double counting of sequestered CO2. Staff has proposed to calculate and track
the amount of carbon stored in landfills, but not count it as a sink when
calculating the 1990 emissions level.
The landfill industry and environmental organizations also recommended using
different landfill gas collection efficiencies and surface cap oxidation factors than
the currently used U.S. EPA default values. A wide range of estimates for these
factors exist in the literature and from site - specific tests. To provide a better
basis for calculating landfill emissions, staff is working with the California
Integrated Waste Management Board (CIWMB) and CEC to obtain improved
data on landfill gas collection efficiencies through a CEC- sponsored research
study. in the meantime, the proposed inventory continues to use the U.S. EPA
default values since rigorous, scientifically -based measurement data on
collection efficiency and landfill cap oxidation factors are not currently available.
Electricity generation. The inventory uses the same methodology developed and
used by CEC, including its fuel mix assumptions, to calculate emissions from
unspecified imported power (out -of -state power from an unknown fuel type). An
electric power provider recommended that the inventory use a different set of
assumptions regarding the types and amount of fuel associated with unspecified
imported electric power from the Pacific Northwest. ARB staff has based its final
estimates for unspecified imported power in 1990 on the findings and
recommendations of CEC staff. ARB staff will continue to work with the CEC and
California Public Utilities Commission to obtain improved information on
emissions from electricity generation for future years.
J. What documentation is available on the methods used to nuantify the
emissions estimates?
ARB staff has produced extensive documentation on the methods used to
develop the emissions inventory for 1990, as well as for the years 1991 to 2004.
Detailed calculations and methods can be found on -line at
htto_/l www. arb. ca .gov /cc/ccei /emsinv /emsinv.htm. This online documentation
consists of over 12,OOO.pages and includes the following for every emission
source estimate for years 1990 to 2004: basic calculation equations and
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references to models, activity data, emission factors, GWPs, and other
constants. It also includes the sources of each of these inputs.
IV. ESTIMATING THE 1990 EMISSIONS LEVEL
The amount and types of emissions in any given year are driven by California's
economic and population demands. In 1990, California had over 29 million
people and an economy that was one of the world's largest with a gross state
product of approximately $1 trillion, equaling 13 percent of the U.S. gross .
domestic product (BEA 2007). As a result, transportation and electricity demand
to meet Californ ia's economic and population needs were responsible for the
largest quantities of greenhouse gases, with transportation accounting for over
35 percent of total emissions and electricity demands for another 26 percent. A
summary of the 1990 emissions estimates for all categories in each sector is
included in Table 5. A detailed summary of the 1990 inventory and the complete
1990 emissions inventory are included in Appendices A -1 and A -2, respectively.
In estimating the 1990 emissions, staff relied on a variety of information sources,
most of which provide data at the state or regional level. They used emission
factors primarily from the IPCC, U.S. EPA, and stakeholders. Fuel use and
electricity generation data were taken from the California Energy Balance
(CALEB) report, Energy Information Administration (EIA), the CEC's Quarterly
Fuel and Energy Report and Petroleum Industry Information Reporting Act Data,
and stakeholder input. Staff also used models where appropriate, such as
EMission FACtors (EMFAC) 2007 model, which is ARB's transportation
emissions model for on -road emissions, U.S. EPA models for agriculture, and the
IPCC First -Order Decay model for landfills.
The 1990 emissions inventory therefore is primarily a top -down inventory since it
relies on these statewide or regional data sources for its emissions estimates.
For example, staff followed the top -down approach of using statewide fuel use
from certain emissions sources to estimate their CO2 emissions. For the .
categories where data was available, staff used a bottom -up approach, relying on
facility- specific data to estimate emissions. Additional information on estimation
methods. may be found on -line in 12,000 pages of documentation in which
calculations and data sources are detailed
(hftp:/Iwww.arb.ca.Qov/cc/cceilemsinv/em sinv. htm).
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Table 5. Emissions Inventory Categories within Each Sector
Sector
Category's
1990
Emissions
MMTCO2e s
Agriculture
Agricultural Energy Use
4.5
Agricultural Residue Burning
0.1
Agricultural Soil Management
6.7
Enteric Fermentation
6.7
Manure Management
5.0
Rice Cultivation
0.4
Commercial
CHP: Commercial (UTO)
0.4
Communication
0.1
Domestic Utilities
0.3
Education
1 A
Food Services
1.9
Health Care
1.3
Hotels
0.7
National Security
0.6
Offices
1.5
Retail & Wholesale
0.7
Transportation Services
0.03
Not Specified
5.6
Electricity Generation
(Imports)
Specified Imports (generating plant known
29.6
Uns edfied Imports (generating plant unknown
31.0
Transmission and Distribution (SF6)
1.0
Electricity Generation
(Instate)
CHP: Commercial and CHP: Industrial
15.2
Merchant Owned
2.3
Utility Owned
29.9
Transmission and Distribution (SF6 )
1.6
Forestry
Forest and range management
0.2
Industrial
CHP: Industrial (UTO)
9.7
Flaring
0.2
Landfills
6.3
Manufacturing
32.0
.Mining
0.03
Oil & Gas Extraction
14.6
Petroleum Marketing
0.02
Petroleum Refining
32.8
Pipelines
1.6
Wastewater Treatment
3.2
Not Specified
2.6
Residential
Household Use
29.7
Transportation
Aviation
5.1
Water -home Marine Vessel
2.2
On read
138.0
Rail
2.3
Not Specified
3.0
l Combined Heat and Power (CHP) refers to cogeneration units supplying electric power and/or
useful thermal energy. UTO is useful thermal output from CHP.
e Emissions in each sector not otherwise accounted for are categorized as "Not Specified ".
a Emissions may not add up to total gross emissions in 1990 due to rounding.
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A. Emissions estimates and quantification methods for key sectors and
categories
The 1990 inventory emissions estimates are based on in -depth analyses of the
CEC's inventory and appropriate updates by staff to include the best scientific,
technological, and economic data available. The review and update process
included all sectors and categories listed in Table 5. The process placed special
emphasis on the sources of greenhouse gas emissions discussed below, in order
of highest to lowest emissions. Emission estimates, methodologies, data
sources, and updates from the CEC inventory are listed. In addition, there is a
brief discussion of where inventory methods might be improved in the future as
staff continues to develop annual inventories.
1. Transportation
Emissions Estimate. The Transportation sector is the largest emitter of
greenhouse gases, emitting roughly 35 percent of California's greenhouse gases
in 1990. It includes all on -road vehicles (passenger cars, light duty trucks, heavy
duty vehicles, and motorcycles), as well as airplanes, trains., and ships. Key
exclusions are interstate and international flights, as well as ships operating
outside of California waters.
Transportation emitted 150.7 MMTCO2e of greenhouse gases (CO2, CH4 and
N20) in 1990. Passenger vehicles, which include passenger cars and light -duty
trucks, accounted for more than 70 percent of all transportation emissions,
emitting 108.5 MMTCO2e. Most of the transportation emissions were CO2. As a
result, the Transportation sector was also the largest emitter of CO2 in 1990:
143.1 MMTCO2e. This estimate does not include emissions from international
and interstate aviation, as well as marine fuel use outside of California waters.
Since fossil fuel combustion primarily produces CO2 and relatively little CH4 and
N20, transportation accounted for a small fraction of statewide CH4 emissions,
1.0 MMTCO2e, despite the large volume of fossil fuels used in vehicles
statewide. It is, however, the second largest source of N20 with 6.7 MMTCO2e,
the majority of which is from on -road vehicles. Older technology catalysts, which
were designed to reduce criteria pollutant emissions from on -road vehicles,
produced N20 through incomplete reactions with combusted fuel.
Methodology. To quantify on -road emissions, staff used EMFAC 2007 and
scaled the direct EMFAC outputs to fuel sales data for all emissions (notably
CO2, carbon monoxide, total hydrocarbons, CH4, and NOx). Scaling EMFAC
outputs to fuel sales enabled the transportation inventory to remain consistent
with the top -down approach used for fuel combustion emissions in the rest of the
inventory.. Nitrous oxide for gasoline vehicles was determined from a linear
regression correlating NOx with N20 based on tailpipe emissions test data. For
diesel vehicles, N20 emissions were based on a per - gallon emission factor from
diesel tailpipe emissions test data.
15
For CO2 emissions from airplanes and trains, staff followed the 2006 IPCC
methodology, which multiplies the amount of fuel purchased within California by
its energy content, carbon content, and a combustion efficiency assumption
(IPCC /UNEP/WMO 2006). Staff used a similar approach for CH4 and N2O
emissions from airplanes and trains, applying the latest U.S. EPA emission
factors to available fuel data. More specific data was available for the marine
vessel inventory, which staff calculated using activities and emission rate data for
ship emissions that occurred in California waters (within 24 miles of California's
coastline) including en transit, port, harbor, docking, and other activities.
Appropriate Second Assessment Report GW Ps were used in all calculations to
determine final emission estimates.
Updates from CEC Inventory. Scaling EMFAC 2007 outputs to the original fuel
sales data was a significant update to the previous statewide inventory compiled
by CEC, resulting in a vehicle - class - specific inventory for most on -road
emissions. Further updates include the recalculation of N2O emissions
improvements in marine vessel estimates, which now use ARB's high resolution
goods movement data to determine emissions occurring in California waters,
instead of following a strictly fuel sales -based approach.
Data Sources. Staff obtained on -road gasoline, on -road diesel, and aviation
gasoline fuel sale numbers from the State Board of Equalization. Fuel sales data
generally correlate fairly well with fuel use. These numbers are also referenced
in the Federal Highway Administration Highway Statistics annual reports and
CALEB. Nearly all other fuel data (carbon content, fuel use, etc.) are from the
CALEB report, which cites EIA's State Energy Consumption, Price, and
Expenditure Estimates database, as well as EIA's Petroleum Marketing reports.
Carbon dioxide calculation methodologies for airplanes and trains are from IPCC
guidance, while on -road source emission factors come from EMFAC. For
airplanes and trains, N2O and CH4 emission factors are from the U.S. EPA ship
statistics and emissions currently included the inventory (fuel use as well as
CO2, CH4 and N2O) are from ARB's goods movement information database.
Future Improvements to Annual Inventories. Staff is investigating the feasibility
of updating EMFAC 2007 to directly calculate emission outputs for on -road
vehicle N2O emissions. Staff is also considering updating airplane, train, and
ship emissions based on new activity and emissions data.
2. Electricity Generation
Emissions Estimate. The Electricity Generation sector is the next largest emitter
of greenhouse gases in 1990, emitting 110.6 MMTCO2e. It consists of power
plants and cogenerators that generate electricity for on -site use and for sale to
the power grid. Power plants typically produce electrical power to serve the grid.
Cogenerators produce electricity and non - electricity useful thermal outputs, such
as steam and /or hot air. The Act specifically requires that estimates shall include
16
greenhouse gas emissions from both in -state generated power and the
generation of imported electricity delivered to and consumed in California.
Emissions from transmission line losses of electricity, as well as SF6 emissions
from transmission equipment, are also included.
Almost 30 percent of the electricity produced in -state in 1990 used renewable
energy sources, such as biomass, solar, wind, hydropower, and geothermal
(Schnapp 2007). The remainder relied on fossil fuels and nuclear power.
California imported 40 percent of its electricity in 1990 to meet statewide
demand. Imported electricity emitted more than 50 percent of the CO2
emissions from this sector, 60.3 MMTCO2e versus 47.3 MMTCO2e from in -state
generation. Electricity generation was a relatively minor source of CH4 and N2O,
emitting 0.1 MMTCO2e of CH4 and 0.4 MMTCO2e of N2O. This sector uses
SF6 as an electrical insulator in the transmission and distribution of electricity.
The quantities of SF6 released to the atmosphere during these applications are
small, but its GWP is the highest of the greenhouse gases in the inventory. As a
result, in 1990, statewide SF6 emissions from electricity generation were 2.6
MMTCO2e.
Methodoloay. Emissions from the Electricity Generation sector are based
primarily on fuel use data obtained from the EIA. Emissions of SF6 from leaks in
electrical transmission equipment are from the U.S. EPA national emissions
inventory, prorated to California based on electricity generation. Staff calculated
fuel combustion emissions by multiplying the heat content of fuel by its relevant
emission factors and constants.
For imported power, staff used plant -specific data for known (specified) imports.
The remaining unspecified imports are based on region - specific emission factors
assumptions for the Pacific Northwest and Pacific Southwest regions. Staff used
CEC assumptions about fuel use for both regions.
Cogeneration facilities, also known as Combined Heat and Power (CHP) plants,
use some fuel for electricity generation and the rest to generate steam and other
useful thermal outputs. To reflect this practice, staff only used the fraction of the
fuel that each cogeneration facility reported as combusted for electricity
generation to estimate electric power emissions. Emissions associated from the
combustion of the remaining fuel are listed as Useful Thermal Output in the
inventory and not counted under the electricity generation sector.
Updates from CEC Inventory. Significant updates from the earlier CEC inventory
were the inclusion of geothermal and additional waste -to- energy data for
calculating emissions from in -state power, line losses in the calculation of
greenhouse gas emissions from imported power, and gross imported electricity
used instead of net imports (gross imports minus exports).
17
Data Sources. All fuel use data is from the EIA. National SF6 emissions are
from the U.S. EPA. Emission factors, fuel heat content, and GWPs are from U.S.
EPA, EIA and IPCC.
Future Improvements to Annual Inventories. SF6 emissions estimates can be
improved with California-specific data, which staff is currently working to obtain.
Staff is also developing better methods for dividing the cogeneration emissions
between respective uses. Staff is working with CEC, CPUC, and other
stakeholders to improve the estimate of emissions from unspecified imports of
electricity.
3. Petroleum Refining
Emissions Estimate. The petroleum refining category emitted 32.8 MMTCO2e in
1990. More than 99 percent of these emissions were CO2, including
32.6 MMTCO2e, from fuel combustion and fuels used as feedstocks. Methane
and N2O emissions were relatively small, 0.2 MMTCO2e and 0.02 MMTCO2e,
respectively. This category includes the 21 major refineries and minor refineries
located throughout California. Major refineries (50,000+ barrels per day of crude
capacity) typically receive and process petroleum crude into its component parts
for sale as fuel or for use as other petroleum -based products (e.g., waxes,
lubricants, etc). Minor refineries may also refine crude or work with residual oil
and other heavy residuals from major refinery outputs to make asphalt or other
petroleum -based products.
The primary sources of greenhouse gas emissions at refineries are emissions
from cogeneration units, hydrogen production, combustion emissions associated
with distillation and other refining processes, catalyst regeneration in fluidized
catalytic cracking units (FCCU), and fugitive emissions.
Methodology. Staff calculated fuel combustion emissions by multiplying the heat
content of fuel by its relevant emission factors and constants. Hydrogen
production emissions were estimated using hydrogen generation rates. Fugitive
CH4 emission estimates from refineries were derived from data in ARS's criteria
pollutant database, the California Emissions Inventory Development and
Reporting System (CEIDARS).
Updates from CEC Inventory. Western States Petroleum Association provided
staff with improved hydrogen production data. Staff updated emission estimates
from the combustion of catalyst coke and.petroleum by dividing "coke" into
catalyst coke and petroleum coke based on data from the CEO's Petroleum
Industry Information Reporting Act (PIIRA) database. PIIRA contains data on
fuel used by refineries in the State.
Data Sources. Publicly available datasets from the CEC and EIA provided
improved data on fuel use. Fugitive emissions are from CEIDARS, which obtains
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its data jointly from the local air districts and ARB calculations. The emission
factors used in calculating emissions estimates are from U.S. EPA, EIA, and
IPCC guidance.
Future Improvements to Annual Inventories. Staff is working to obtain additional
data regarding the fuel used for hydrogen production. Additionally, refineries
may provide data currently missing on fuel (e.g., refinery gas, naphtha, etc.) that
they may export to other facilities for hydrogen production. Staff is investigating
emission factor updates for CO2 from the regeneration of FCCU catalysts.
4. Agriculture
The Agriculture sector was one of the smaller greenhouse gas emitters in 1990,
emitting 23.4 MMTCO2e. It includes agricultural energy use, agricultural soil
management, agricultural residue burning, enteric fermentation, manure
management, and rice cultivation. The sector emits a relatively small amount of
CO2 emissions compared to other sectors. The largest CO2 emission source is
fuel combustion in agricultural equipment (4.5 MMTCO2e). This sector,
however, includes the largest emitter of CH4, enteric fermentation (animal
digestion) which emits 6.7 MMTCO2e of CH4 in 1990: Agricultural energy use,
agricultural residue burning, manure management, and rice cultivation emitted an
additional 4.9 MMTCO2e of CH4. Agriculture was also the largest source of N2O
in California in 1990. Agricultural soil management (processes that increase soil
nitrogen availability) was responsible for 88 percent of N2O emissions within the
agriculture sector and 40 percent of all N2O emissions statewide. Discussion of
methodologies, data sources, and future improvements for this sector will focus
on agricultural soil management, enteric fermentation, and manure management
since they are the highest emitting categories in this sector.
Agricultural Soil Management
Emissions Estimate. Agricultural soil management was the highest emitter of
N2O in 1990, emitting 6.6 MMTCO2e of N2O and 0.1 MMTCO2e of CO2. This
category consists of agricultural activities that increase soil nitrogen availability
including: applying fertilizers and manure; growing nitrogen fixing crops; retaining
crop residuals; liming of soils; depositing waste by domestic and grazing animals;
and, cultivating histosols (soils with high organic matter content). Emissions of
N2O from managed soils occur as a result of nitrification and denitrification in
soil.
Methodology. Staff calculated N2O emissions using an emission factor model,
which is based on the 2006 IPCC guidelines and the guidance from the U.S.
EPA's Emissions inventory Improvement Program for greenhouse gases. Staff
adapted the parameter values used by CEC staff to make them California -
specific. For example, the residue -to -crop mass ratio and the fraction of residue
applied were adjusted down for some crops to match the estimated residue
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tonnages for agricultural burning in California. Staff multiplied applied tons of
limestone and dolomite by the dolomite and limestone emission factors to
estimate CO2 emissions since CO2 is emitted to the atmosphere when the
limestone and dolomite applied to agricultural soils degrades.
Updates from CEC Inventory. Improvements for estimating N2O emissions from
agricultural soil management included computational improvements and updated
emission factors.
Data Sources. Activity data are from CEC emission inventory spreadsheets,
which are primarily from the California Department of Food and Agriculture
(CDFA). Fertilizer usage data is from Fertilizing Materials Tonnage Reports,
published by CDFA. Crop production data is from USDA National Agriculture
Statistics Services. The animal population data used to estimate manure
production were from the national greenhouse gas inventory spreadsheets (U.S.
EPA 2007). Staff estimated histosols cultivation acreage based on the expert
judgment of two California State soil scientists (CEC 2006). The amounts of
limestone and dolomite applied to cropland soils are from the CDFA annual .
fertilizing materials tonnage reports and annual editions of the U.S. Geological
Survey (USGS) Minerals Yearbook.
Future Improvements to Annual Inventories. Staff will evaluate the feasibility of
using process -based models to quantify N2O emissions. Emission factor models
cannot capture the emission variations from a wide range of agro - ecosystems,
since N2O emissions from nitrification and denitrification processes are driven by
many factors, such as climate, soil, and agricultural practices.
Enteric Fermentation
Emissions Estimate. Enteric fermentation is the microbial fermentation process
in an animal's digestive system that produces CH4, which is in turn exhaled or
burped by the animal. This process is the largest statewide emitter of CH4 in
1990, emitting 6.7 MMTCO2e of CH4, most of which was released by
domesticated ruminant animals.
Methodoloqv. Staff used the U.S. EPA enteric fermentation emissions
methodology to calculate California-specific emissions, consistent with 2006
IPCC guidance. The majority of enteric fermentation emissions are from dairy
and beef cattle. Staff used a more detailed methodology to estimate emissions
for domesticated cattle (except bulls) that employs several models and
calculations. A less detailed methodology provided emissions estimates for other
livestock, because overall these animals contribute a relatively small amount of
the total enteric fermentation CH4 emissions.
20
Updates from CEC Inventory. Updates from the CEC inventory estimates of
enteric fermentation emissions centered on improved emission factors and data
inputs obtained from U.S. EPA.
Data Sources. The original source of the animal population data, except for
horses, is from the U.S. Department of Agricultural (USDA) National Agricultural
Statistics Service (NASS). Horse population data is from the Food and
Agriculture Organization (FAO). Output from the University of California, Davis
AAMOLLEY model provides cattle digestible energy and CH4 conversion rates
by population category. Staff calculated the gross energy factor using IPCC
recommended methods. For "other livestock" animal types, such as sheep and
swine, staff obtained the emission factors from the 2006 IPCC guidance.
Future Improvements to Annual Inventories. Staff is investigating potential
improvements to the enteric fermentation methodology. As research results
emerge, and as the IPCC and U.S. EPA improve methodologies, the inventory
will be updated to reflect those improvements.
Manure Management
Emissions Estimate. The manure management category emitted 5.0 MMTCO2e
in 1990, the majority of which was CH4 emissions. This sector includes the
storage of livestock or poultry manure in liquid systems. The storage or
treatment of manure waste in anaerobic conditions, such as liquid slung in a
pond or lagoon, promotes anaerobic decomposition of organic material, which.
produces CH4 emissions. Small amounts of N2O are also produced through
nitrification and denitrification.
When manure is handled as a solid, it tends to decompose aerobically, primarily
producing N2O and little or no CH4. Nitrous oxide emissions from manure
managed in pasture, range, and paddock or as daily spread is included in the
agricultural soil management category.
Methodology. Staff used the U.S. EPA emissions calculation methodology for
manure management to calculate California-specific emissions. The
methodology considers animal population and location, amount of dry versus
liquid manure, CH4 and N2O emission factors, and other inputs. It is consistent
with 2006 IPCC guidance and recommendations.
Updates from CEC Inventory. Updates from the earlier CEC inventory estimates
emissions from manure management centered on improved emission factors and
data inputs obtained from U.S. EPA.
Data Sources. Animal population data, except for horses, is from the USDA
NASS. Horse population data is from the FAO. Staff obtained all factors used to
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estimate CH4 and N2O emissions from U.S EPA's inventory spreadsheets and
reports.
Future improvements to Annual Inventories. As research results emerge, and as
the IPCC and U.S. EPA improve methodologies, staff will update future time
series inventories.
5. Landfills
Emissions Estimate. Landfills are the second highest emitter of CH4 statewide,
releasing 6.3 MMTCO2e as a result of the degradation of organic waste.
Anaerobic decomposition of landfilled waste forms roughly an even mix of CO2
and CH4 as a byproduct of degradation. Methane emissions from landfills are
the chief pollutant of concern for this category. The CO2 generated from
landfills, whether through oxidation in cover material or through landfill gas
combustion, is considered biogenic and accounted for in the atmospheric CO2
flux (see Appendix B).
The landfills included in the inventory are only those landfills in California that
receive or have received organic waste. Landfills receiving only ash or inert
construction debris are not considered since they do not emit CH4. A large
fraction of landfill carbon, including organic waste, cannot degrade and may be
permanently sequestered in the landfill.
Landfills may install or expand a gas collection system to capture landfill gases in
an effort to comply with local, state or federal regulations. Captured gas may be
flared, filtered, or combusted for electricity production. Some landfills do not
generate enough gas for effective combustion and simply vent the gas. Gases
that are not captured escape through the surface or migrate out through other
means.
Methodology. Staff used the IPCC Mathematically Exact First -Order Decay
Model, which calculates the amount of carbon that degrades over time in a
landfill. The amount of landfill carbon before degradation is based on national
and California waste characterization studies and 2006 IPCC factors that convert
each waste type into carbon mass. Staff received the total amount of waste
deposited into landfills (waste -in -place data) from CIWMB for 1990 and prior
years. All of these data served as inputs into the IPCC model.
Staff surveyed landfills in the State to improve the model output results,
augmenting model estimates with actual measured landfill gas collection levels.
Collection efficiencies and oxidation factors for gas migration through the cover
soils used defaults of 75 percent and 10 percent, respectively. Staff combined
these defaults with the model output to determine total amount of CH4, that was
released.
22
Updates from CEC Inventory. CEC relied on CEIDARS data for landfill CH4,
which is based on local air district - specific methods. Staff updated emissions
estimates by using waste data obtained from CIWMB in conjunction with IPCC
models to obtain a consistent, statewide estimate that incorporates all the latest
data available.
Data Sources. Waste -in -place data is from the CIWMB. Rainfall for each landfill,
which influenced landfill decay rates, is based on data from CIWMB and the
Natural Resources Conservation Service. The decay model itself is from the
2006 IPCC Guidelines (Mathematically Exact First -Order Decay Model). Waste
characterization comes from U.S. EPA (national data) and CIWMB (California-
specific data) studies, while carbon content and sequestration factors come from
U.S. EPA, CEC, and 2006 IPCC Guidelines. The default collection efficiency of
75 percent is from U.S. EPA. The default oxidation factor of 10 percent for gas
migration through the surface cap is from 2006 IPCC Guidance.
Future Improvements to Annual Inventories. Staff is currently working to obtain
more landfill- specific survey data to better improve estimates. Staff hopes to
improve the default collection and oxidation values through studies focused on
these areas.
6. Cement
Emissions Estimate. The cement category includes all cement manufacturers in
California. Emissions result from the processing of raw materials into clinker, as
well as the combustion of fuel to heat kilns. Clinker is one of the key ingredients
used to produce cement, releasing CO2 in the process. The production of clinker
produced 4.6 MMTCO2e in 1990. Carbon dioxide was also emitted, along with
small quantities of CH4 and N2O, when fossil fuel was combusted to heat kilns,
emitting 3.5 MMTCO2e. Carbon dioxide emissions from clinker production
accounted for unrecycled cement kiln dust (CKD).
Methodology. Staff calculated CO2 emissions from clinker production by first
multiplying clinker production data with a clinker CO2 emission factor, and then
by a CKD correction factor. The CKD correction factor is calculated based on the
known amounts of CKD leaving the kiln, the bypass dust leaving the kiln, and a
CKD factor (IPCC /UNEP/WMO 2006). Staff calculated fuel combustion
emissions by multiplying the heat content of fuel by its relevant emission factors
and constants.
Updates from CEC Inventory. Staff used known amounts of clinker production,
cement kiln and bypass dust data, and fuel use data, which are all based on
facility- specific surveys aggregated to a statewide total. CEC used a default
correction factor for CKD, because data on the amounts of CKD were not
available. CEC also used clinker production data from the USGS, whereas ARB
23
i •
staff used plant - specific aggregated clinker production data provided by the
Portland Cement Association (PCA).
Data Sources. PCA provided California - specific data on clinker production,
cement kiln dust, bypass dust leaving the kiln system, and fuel use from a
cement plant survey for 1990, 1995, 2000, and 2005. ARB staff interpolated
missing data for the intervening years, upon PCA's recommendation. The clinker
emission factor and the factor for cement kiln dust are IPCC factors
(IPCC /UNEPIWMO 2006).
Future Improvements to Annual Inventories. ARB staff would like to obtain
cement plant - specific data on the mass of individual inputs (i.e., carbonates)
consumed in the kiln to produce clinker. These data would be used to improve
the CO2 emissions resulting from clinker production in future time series
inventories.
7. Forestry and Rangelands
Emissions Estimate. The Forestry sector is unique, because it not only includes
CO2, CH4, and N2O emissions from disturbances on forests and rangelands,
such as harvest, fire, and land use conversion, but also includes removals of
atmospheric CO2 by photosynthesis, which is then bound (sequestered) in plant
tissues. The inventory balances the CO2 emissions and atmospheric removals
of CO2 by vegetation through an atmospheric CO2 flux approach (Appendix B).
The sector's emissions are therefore the sum total of greenhouse gas emissions
to the atmosphere and CO2 removals by photosynthesis.
In 1990, this sector removed more CO2 from the atmosphere than it emitted. As
a result, it was a net sink, removing 6.7 MMTCO2e from the atmosphere in 1990.
Emissions from the Forestry sector due to management of forests and
rangelands accounted for less than one percent of all CH4 and N2O emissions
statewide in 1990.
Methodoloay. For forests and rangelands, staff estimated CO2 removals and
emissions from changes in forest and rangeland biomass with products
developed by Winrock for CEC (CEC 2004). The products used satellite imagery
and empirical relationships between tree canopy cover and biomass to estimate
changes in biomass overtime. Increases in biomass are associated with
removals of CO2 from the atmosphere, while decreases indicate wood
harvesting and emissions from fires (CO2, CH4, and N2O) and harvest events
(CO2 and CH4). Winrock provided data for 1994 -2000. Staff used scaling
factors based on forest land area trends from CalFIRE and USDA -FS to
extrapolate data for the remaining years (1990 -1993 and 2001 - 2004). Emissions
associated with soil disturbance and residue oxidation resulting from harvest
activities are accounted for in the inventory. When wood is harvested, a portion
of the tree biomass is converted to wood products. The wood products serve as
24
0
reserves of carbon, some of which degrade slowly over long periods of time to
CO2 and CH4 in landfills and composts. Staff estimated emissions from the
statewide disposal of wood products as part of the landfill category.
Updates from CEC Inventory. Forest and rangeland greenhouse emissions are
reported by individual gas (CO2, CH4, and N2O) and emission source (e.g., fire,
soil disturbances, etc.). CEC combined these gases and sources. The Forestry
sector inventory now includes emissions from the decomposition of wood
products disposed in landfills, and emissions from composting operations.
Emissions from landfilled and composted urban greenwaste are now reported
under the landfills category, pending further data on atmospheric CO2 removals
by urban forests. Woody and non -woody crop biomass annual stock changes
have been removed from the inventory pending further study.
Data Sources. Staff used products developed by Winrock for the CEC PIER
program to estimate CO2 removals and greenhouse gas emissions for forests
and rangelands. Data on wood product use in the State is from WOODCARB
model output provided by the USDA -FS Forest Products Laboratory. CIWMB
provided data on wood product disposal in landfills. The decay rates used to
model CO2 and CH4 generation from landfilled wood product decomposition are
from the U.S. EPA.
Future Improvements to Annual Inventories. ARB is partnering with land
management agencies and the research community to investigate the feasibility
of using products from the USDA -FS Forest Inventory and Analysis (FIA)
program to better estimate biomass and carbon stocks and stock changes on
forested lands. The FIA represents a robust standard for forest inventories, and
serves as the basis for the U.S. EPA forest lands greenhouse gas inventory.
Trees in urban areas account for a small but increasing fraction of forest cover in
the State. Future inventories may include an inventory of urban forest stocks and
stock changes. Future editions of the inventory could also include soil organic
carbon, which makes up a large carbon reservoir on forested lands, rangelands
and croplands, as data and models become available.
Improvements to forecasting for this sector beyond land area trends will involve
assessments of climate forcing and future human activities affecting biomass
stocks, such as forest management. These assessments will also be needed to
develop forecasts for other categories of managed land, such as croplands and
urban areas.
B. Emissions estimates for other sectors
The remaining statewide greenhouse gas emissions in 1990 were from sectors
and categories not discussed above, but included in Table 5. Staff reviewed the
CEC estimates for these emissions sources and, as appropriate, updated the
25
• 0
input data, emission factors, and methodologies to reflect the best available data
and estimation methods. Commercial and Residential sectors are discussed
briefly below since they are not part of the four sectors examined above. The
Industrial sector is also mentioned since it is much broader than the three
industrial categories (landfills, cement, and petroleum refining) discussed
previously.
The Commercial sector emitted 14.4 MMTC.O2e, while the Residential sector
emitted 29.7 MMTCO2e in 1990. The Commercial sector includes emissions
from all commercial activities statewide, as listed in Table 5. The Residential
sector contains emissions from households. Staff combined fuel use data and
improved emission factors from the IPCC to calculate emissions in both sectors.
This approach is the same as that used by the CEC.
Greenhouse gas emissions for both sectors were due to fuel combustion. Fuel
was burned to prepare food, heat buildings, provide hot water and steam, and
supply energy for natural gas transmission through pipelines. As a result, the
Commercial sector emitted 14.4 MMTCO2e of CO2 and 0.06 MMTCO2e of CH4
in 1990. The Residential sector produced 29.1 MMTCO2e of CO2 and 0.5
MMTCO2e of CH4. Both sectors emitted very little N2O as a by- product of fuel
combustion.
The Industrial sector, which includes cement production, landfills and petroleum
refining, emitted a substantial amount of greenhouse gases in 1990,
103.0 MMTCO2e. More than 70 percent of these emissions are due to fuel
combustion.
V. PRELIMINARY 2020 GREENHOUSE GAS PROJECTIONS
As ARB develops the Scoping Plan, which identifies actions for reducing
greenhouse gases to the 1990 level, it will be necessary to estimate a projected
2020 business -as -usual statewide emissions estimate of total greenhouse gases.
Business -as -usual emissions estimates are the levels anticipated to occur in the
absence of additional policies and measures.aimed at reducing future emissions.
Projections are based on forecasted demographic and economic growth.
A 2020 business -as -usual forecast will be included in the 2008 Scoping Plan.
For Scoping Plan development, staff has calculated a preliminary net business -
as -usual emissions estimate for 2020, which is approximately 600 MMTCO2e.
The difference between the proposed 1990 emissions level and ARB's
preliminary estimate of 2020 emissions is therefore 173 MMTCO2e. This
number will be refined in the final Scoping Plan.
0
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VI. CONCLUSIONS
Staff estimates that the 1990 statewide emissions level was 427 MMTCO2e.
Staff proposes that the Board approve 427 MMTCO2e as California's
greenhouse gas emissions limit for 2020.
The total reductions needed to achieve a level of 427 MMTCO2e by 2020 are
determined from the difference between the projected 2020 business -as -usual
emissions level and the proposed 2020 limit of 427 MMTCO2e. Staff developed
a preliminary estimate of approximately 600 MMTCO2e for the 2020 business -
as -usual projection. This 2020 business -as -usual estimate will continue to be
assessed during development of the Scoping Plan in 2008.
Staff will continue to work to improve our greenhouse gas inventory methods and
data as we develop annual greenhouse gas inventories. If additional information
becomes available that would significantly alter the total emissions for 1990, staff
will bring a revised 1990 emissions level back to the Board for consideration.
27
• . r
VII. REFERENCES
Bureau of Economic Analysis (BEA) (2007) Gross Domestic Product by State.
ham: / /www.bea.gov /bea /regional /asp /default.cfm ?series =SIC. Accessed August
31, 2007
California Energy Commission (CEC) (2004) Baseline Greenhouse Gas
Emissions for Forest, Range and Agricultural Lands in Ca lifornia. CEC- 500 -04-
069F
California Energy Commission (CEC) (2005) Development of Energy Balances
for the State of California. CEC- 500 - 2005 -068
California Energy Commission (CEC) (2006) Inventory of California Greenhouse
Gas Emissions and Sinks: 9990 to 2004. CEC- 600 - 2006 - 013 -SF
California Energy Commission (CEC) (2007) Integrated Energy Policy Report.
CEC- 100- 2007 - 008 -CTF
Climate Action Team (CAT) (2006) Climate Action Team Report to Governor
Schwarzenegger and the Legislature .
duVair, P. (2007) Personal Communication from Pierre duVair (California Energy
Commission) to Webster Tasat, California Air Resources Board.
November 8, 2007
EMFAC (2007) EMission FACtors 2007 Model.
hftp://www.arb.ca.aov/msei/onroad/onroad.htm
IPCC /UNEP /OECD /IEA (1997) Revised 9996 IPCC Guidelines for National
Greenhouse Gas Inventories. Paris
IPCC (2000) Good Practice Guidance and Uncertainty Management
in National Greenhouse Gas Inventories. 16"' session of the IPCC Plenary held
Montreal, Canada, May 2000
IPCC (2003) Good Practice Guidance for Land Use, Land -Use Change, and
Forestry. 21s' session of the IPCC Plenary held in Vienna, Austria, November
2003.
IPCC /UNEP/WMO (2006) 2006 IPCC Guidelines for National Greenhouse Gas
Inventories. IGES. Japan
IPCC (2007) Summary for Policymakers. In: Climate Change 2007: The Physical
Science Basis. Contribution of Working Group I to the Fourth Assessment Report
of the Intergovernmental Panel on Climate Change S. Solomon, D. Oln, M.
28
Manning, Z. Chen, M. Marquis, K.B. Averyt, M. Tignor and H.L. Miller,eds.
Cambridge University Press, Cambridge, UK and New York, NY, USA
Lawrence Berkeley National Lab (LBNL) (2006) California Energy Balance
(CALEB) Database. CALEB version 1.50 July 2006. Developed by the Energy
Analysis Department, Environmental Energy Technologies Division, Lawrence
Berkeley National Laboratory
Schnapp, R. (2007) Personal communication (data submittal) between Larry
Nunsaker of the California Air Resources Board and Robert Schnapp of the U.S.
Energy Information Administration. Summer 2007
Thorneloe, S.A. (2007) U.S. EPA's Research to Update Guidance for Quantifying
Landfill Gas Emissions. Proceedings of the Eleventh International Waste
Management and Landfill Symposium. Cagliari, Italy
U.S. EPA (2007) Inventory of US Greenhouse Gas Emissions and Sinks: 1990-
2005. April 15, 2007
00
EXHIBIT 12
PF
L�
THE ROLE OF LAND USE IN MEETING.
CALIFORNIA'S ENERGY AND
CLIMATE CHANGE GOALS
CALIFORNIA
ENERGY
COMMISSION
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Q
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August 2007
CEC- 600 - 2007 - 008 -SF
E
DISCLAIMER
CALIFORNIA
ENERGY
COMMISSION
Panama Bartholomy
Gina Barkalow
Gerry Bemis
Nancy McKeever
Suzanne Phinney, D.Env.
Julia Silvas
Joanne Vinton
Principal Authors
Lorraine White
Manager, 2007 Integrated
Energy Policy Report
Pat Perez
Manager
SPECIAL PROJECTS
OFFICE
Roselle Shapiro
Deputy Director
FUELS AND
TRANSPORTATION
DIVISION
B.B. Blevins
Executive Director
This report was prepared by a California Energy Commission staff person. It does not
necessarily represent the views of the Energy Commission, its employees, or the State of
California. The Energy Commission, the State of California, its employees, contractors
and subcontractors make no warrant, express or implied, and assume no legal liability for
the information in this report; nor does any party represent that the uses of this information
will not Infringe upon privately owned rights. This report has not been approved or
disapproved by the California Energy Commission nor has the California 'Energy
Commission passed upon the accuracy or adequacy of the information in this report
Bartholomy, Panama, Gerry Bemis, Gina Barkalow, Nancy McKeever, Suzanne Minney,
Julia Silvas, and Joanne Vinton. 2007. The Role of Land Use in Meeting California's
Energy and Climate Change Goals. California Energy Commission. CEC- 600 -2007-
008-SR.
0 0
Table of Contents
ExecutiveSummary ......................... .............................................. ..............................�
Examples of Better Land Use Planning ...................................................... ..............................2
Findings and Recommendations ................................................................... ..............................4
Findings.......................................................................................................... ..............................4
Recommendations............................................................................................ ..............................5
CHAPTER 1: Introduction ............................................................... ..............................9
Growth in Vehicle Miles Traveled ................................................................ ..............................9
Process.......................................................................................... .............................34
LandUse Planning .......................................................................................... .............................10
California Regional Blueprint Planning Program ...................................... .............................34
Organizationof This Report ......................................................................... .............................11
Blueprint Learning Network ......................................................................... .............................34
CHAPTER 2: Land Use, Energy, and Climate Policy Context ..... .............................13
Energy in Blueprint Planting — Current and Potential ............................ .............................34
ExecutiveOrder 5- 3- 05 .................................................................................. .............................13
Sacramento Blueprint Project ................................................................... .............................35
ClimateAction Team ..................................................................................... .............................13
San Diego Association of Governments ................................................ .............................37
Measures to Improve Transportation Efficiency ................................. .............................14
SanFrancisco Bay Area ............................................................................ .............................38
SmartLand Use .......................................................................................... ................:............14
LocalGovernment ........................................................................................... .............................40
AssemblyBill 32 .............................................................................................. ....:........................14
Leagueof California Cities ....................................................................... .............................40
PetroleumReduction Goal ............................................................................. .............................15
California State Association of Counties .............................................. .............................40
AssemblyBill 1493 ......................................................................................... .............................15
Low Carbon Fuel Standard .......................................................................... .............................15
Historical and Projected VMT, Gasoline Demand, and Population ... .............................16
CHAPTER 3: Land Use and Energy: Trends and Drivers ........... .............................20
VehicleMiles Traveled ................................................................................... .....................:.......20
Densityand Mixed Use ................................................................................. .............................20
Jobs - Housing Balance ..................................................................................... .............................22
SocialEquity ..................................................................................................... .............................22
AgingPopulation ............................................................................................. .............................23
Residential Design and Energy Consumption ........................................... .............................23
LocalGovernment Funding ........................................................................... .............................24
PropertyTaxes ............................................................................................ .............................24
StateSales Tax ............................................................................................ .............................24
CHAPTER 4: Land Use and Transportation Planning Opportunities to Reduce
Energy Demand and Greenhouse Gas Emissions ................... .............................27
Current Approach to Land Use and Transportation Planning ............ .............................27
Regional Transportation Planning Process ................................................ .............................27
Local Land Use Planning Process ............................................................... .............................29
StateLand Use Planning ................................................................................ ............................29'
California Environmental Quality Act ................................................... ...............:.............30
California Transportation Plan ............................................................... .............................30
Housing Element Updates ................:....................................................... .............................31
CaliforniaWater Plan ................................................................................ .............................31
StormwaterPlans ....................................................................................... .............................32
CHAPTER 5: Integrating Transportation and Land Use Analysis, Planning, and
Process.......................................................................................... .............................34
California Regional Blueprint Planning Program ...................................... .............................34
Blueprint Learning Network ......................................................................... .............................34
Energy in Blueprint Planting — Current and Potential ............................ .............................34
Sacramento Blueprint Project ................................................................... .............................35
San Diego Association of Governments ................................................ .............................37
SanFrancisco Bay Area ............................................................................ .............................38
LocalGovernment ........................................................................................... .............................40
Leagueof California Cities ....................................................................... .............................40
California State Association of Counties .............................................. .............................40
0 0
Institute for Local Government ................................................................ .............................41
Non - California Initiatives ............................................................................. .............................41
Massachusetts Greenhouse Gas Emissions Policy .............................. .............................41
Oregon Land Conservation Program ...................................................... .............................42
New Jersey State Development and Redevelopment Plan and Smart Growth
Program..........................:.............................................................................. ...............:.............43
Maryland Economic Growth, Resource Protection, and Planning ... .............................43
Portland Metro Regional Transportation and Land Use Planning . .............................44
CHAPTERS: Infrastructure Funding ............................................ .............................46
National............................................................................................................ ..............................4 6
The Center for Clean Air Policy Federal Highway Bill Reauthorization Effort ......... 46
California.......................................................................................................... .............................47
StrategicGrowth Plan ................................................................................ .............................47
Congestion Pricing and Demand Management ......................................... .............................50
CHAPTER 7: Electric Utilities' Role in Land Use .......................... .............................53
UtilityInfrastructure Planning and Development ................................... .............................53
Long -Term Planning for Utility Infrastructure ..................................... .............................53
LineExtension Policies .............................................................................. .............................53
Inclusion of Utility Infrastructure in CEQA Documents .................... .............................54
Local Land Use Planning and Development ............................................ .............................55
SouthernCalifornia Edison ...................................................................... .............................55
San Diego Gas and Electric .................................... ...............................
Pacific Gas and Electric .......................................... ...............................
MunicipalUtilities .................................................... ...............................
New Development Opportunities ................................. ...............................
.............57
.............58
CHAPTER 8: Land Use Planning Research and Development .. .............................60
Land Use and Transportation Research .................................................... .............................61
Possible Areas of Future Transportation Research ............................. .............................62
Scientific Research and Modeling Tools to Better Understand Land Use,
Energy, and Environmental Relationships ............................................ .............................64
Examples of Current PIER - Funded Land Use, Energy, and Environmental Research
65
Areas for Possible Future PIER - Funded Land Use, Energy, and Environmental
Research........................................................................................................ .............................66
CHAPTER 9: Staff Findings, Conclusions, and Recommendations ......................72
Findings............................................................................................................. .......................:.....72
Conclusions...................................................................................................... .............................73
Recommendations........................................................................................... .............................74
CHAPTER 10: References ............................................................. ...........:.................79
Appendix: 2006 Energy Report Update: Policy Recommendations Update ......... 81
Require Local Governments to Adopt Greenhouse Gas Emission Reduction Plans .....81
Promote and Facilitate Efficient Land Use Practices That Save Energy and Reduce
GreenhouseGas Emissions ............................................................................ .............................81
Provide New Tools and Conduct Research to Assist Local Government's Energy
and Greenhouse Gas Reduction Planning Efforts ......................:............. .............................82
For the 2007 IEPR, the State Should Analyze the Role of the State's Infrastructure
Planning and Financing Activities in Promoting Smart Growth ............... .............................83
ii
List of Figures
Figure 1. Historical and Projected Population, VMT, and Fuel Demand ......................... 17
Figure 2. Priority Research Areas ......................:........................................... .............................65
List of Tables
Table 1. Statewide Allowable VMT Growth Rates in 2020. Relative to 2005 ...................18
Table 2. Additional Daily Travel Miles in Privately Owned Vehicles (POV) and
Transit - Business -as -Usual and High - Density Urbanization Scenarios, California,
2000 to 2025 ......................................................................................................... .............................21
Table 3. Key Statistics Comparing Base Case Scenario 2050 and Regional Preferred
Scenario2050 .................:...................................................................................... .............................36
Table 4. Strategic Growth Funds ...................................................................:. .............................50
iii
•
Abstract
Land use profoundly affects energy use in this state. The configuration of California's
towns, cities and rural areas affects how Californians use energy in their homes, the
sources of that energy, the energy used in transportation, and even the amount and
sources of energy that the state uses to provide water. Because energy use is so closely
tied to greenhouse gas production, the passage of California landmark climate change
laws and policies have prompted state, regional and local planners to incorporate
energy considerations into land use and transportation planning. The first efforts in this
direction suggest that the planning process itself is key to success, but more work needs
to be done to quantify both how land use planning decisions can affect energy use, how
the planning process itself affects the outcome, and how plans are actually
implemented. New land use /transportation policies, initiatives, and actions at all levels
of government in California could provide major energy and greenhouse gas emissions
reductions.
The passage of the Governor's Strategic Growth Infrastructure Bond package represents
an opportunity to influence the energy efficiency and environmental friendliness of
communities through project funding criteria. Blueprint planning efforts underway by
regional governments are identifying new growth scenarios that would, if adopted,
change future land use patterns and reduce the levels of vehicle miles traveled by Cali-
fornia residents. Local governments are stepping up to the climate change challenge and
developing plans to support state goals. Utilities are playing a small but growing role in
collaborative planning efforts with local governments. Efforts like the above need a
variety of regulatory changes, tools, incentives, and research to maximize. their potential
effectiveness.
The body of research on the impact of land use on energy use and climate is relatively
small, with a substantial portion of the present work focusing on transportation.
However, this research area is receiving significantly more attention with the growing
interest in climate change. The California Energy Commission is dedicating significant
resources to studying opporhuuties and barriers to integrated energy planning.
KEYWORDS: Land use planning, IEPR, Integrated Energy Policy Report, land use
planning models, energy infrastructure, global climate change, blueprint planning, role of
land use in climate change, role of utilities in land use planning, land use planning
research.
iv
Executive Summary
California's land use patterns shape energy use in the state, which in turn contributes to
the production of greenhouse gases. These patterns include the excessive use of land per
household, separation between houses, the location of transit lines and jobs, development at
low densities, and site designs that require more and longer automobile trips to meet
everyday needs.
The state's population is expected to grow by 24 million additional residents by 2050,
bringing the total population to 60 million. Supplies of gasoline, crude oil, and natural
gas, on the other hand, could decline during this timeframe. How future land use
patterns and vehicle use develop will affect not only California's ability to achieve its
ambitious energy and climate change goals, but its ability to preserve residents' quality
of life.
Recent California laws and policies set the stage for how the state will develop its land,
use energy, and emit greenhouse gases in the future. Governor Schwarzenegger s
Executive Order S -3 -05 established greenhouse gas emission reduction targets for 2010,
2020, and 2050; Assembly Bill 32 (Niifiez and Pavley, Chapter 488, Statutes of 2006)
established a legally binding 2020 greenhouse gas emission reduction target.
Transportation accounts for about 40 percent of California's 2004 total greenhouse gas
emissions; gasoline represents 70 percent of transportation's total greenhouse gas
emissions and 27 percent of overall greenhouse gas emissions. For this reason, the state
has initiated efforts to reduce petroleum use, reduce emissions from light -duty vehicles,
reduce the carbon intensity of fuels, improve transportation energy efficiency, and
embrace smart land use and intelligent transportation strategies.
Population growth, gasoline consumption, and vehicle miles traveled are interrelated
and may grow in similar or diverging paths depending on the success of the above
initiatives. Measures to reduce the growth rate of vehicle miles traveled will be
particularly important.
Land use patterns play a direct role in the rate and growth of vehicle miles traveled,
influencing the distance that people travel and the mode of travel they choose.
Residential density may have the most profound effect on travel behavior, with higher,
density reducing vehicle miles traveled per capita. Balancing jobs and housing in a given
area may also reduce vehicle miles traveled per capita by shortening commute distances.
In addition, the type of housing that California's aging population chooses (for example,
smaller units closer to services) may affect whether Californians drive more or less as
they age. While a correlation exists between land use and driving patterns, more research
is needed to establish causality.
State Propositions 13 and 218 have reduced the role of property -based taxation as a
local government revenue source and have thus encouraged local governments to turn to
large retail establishments to strengthen their tax bases. Such retail establishments,
typified by "big box' stores, commonly require substantial vehicle travel on the part of
consumers and require large amounts of energy to heat and cool.
Opportunities exist at all levels of government for integrated land use and transportation
planning that would reduce energy demand and greenhouse gas emissions. At the local
level, general plans and zoning codes are incorporating more growth management and
energy measures. At the regional level, hundreds of millions of dollars are spent annually
on transportation, land use, and air quality planning, and coordinating these efforts will
reduce energy demand. At the state level, laws, policies and plans (the California
Environmental Quality Act, the California Transportation Plan, housing element
updates, the California Water Plan, and stormwater plans) can be used as levers to
effect sustainable land use patterns.
Examples of Better Land Use Planning
A number of exemplary programs to encourage better land use planning exist at the
state, regional, and local levels in California, and examples outside the state are also
plentiful. California's Regional Blueprint Planning Program provides funding to help
regional governments create more efficient land use patterns. The Blueprint Learning
Network helps coordinate state and regional agencies to share experiences and best
practices in making better infrastructure investment decisions.
Energy is not a stated component of blueprint planning but is beginning to be addressed.
For example, both the Southern California and Sacramento Area Associations of
Governments are evaluating the risk of long -term disruption in transportation fuels that
could result from fuel scarcity or damage to major fuel delivery infrastructure, and in
June 2007 the Blueprint Learning Network hosted a two -day workshop on "Land Use,
Energy and Climate."
By enabling citizens to recommend better land use patterns and governments to make,
better land use decisions, blueprint planning could reduce future vehicle miles traveled.
For instance, projections to 2050 showed that the scenario preferred by Sacramento
stakeholders and adopted by the regional governing body could use 46 percent less new
land, reduce vehicle miles traveled by 12.3 miles per household per day, and produce 15
percent less carbon dioxide and particulate matter per capita, as compared to the
business -as -usual case. However, as promising as these projections are, this level of
reduced vehicle miles traveled falls short of reductions needed to meet the state's
greenhouse gas emissions reductions goals.
A similar planning effort in the San Francisco Bay Area showed that the smart -growth
land use scenario, as compared to the business -as -usual case, could reduce the area's
urban footprint by 16,000 acres (2 percent), reduce per capita water consumption by 50
gallons per day (17 percent), and, increase the proportion of new affordable housing
from 16 percent to 41 percent of all new units.
Plans being, developed in other states may be instructive to California. Oregon, New
Jersey, and Maryland are conducting similar smarter land use planning efforts, some of
which are specifically targeted toward greenhouse gas emission reductions. Regional
programs in Portland, Oregon, and Salt Lake City are using stakeholder - developed land
use scenarios to generate better land use plans that are already showing reductions in
vehicle miles traveled: Portland residents decreased their daily per capita. vehicle miles
traveled by 11 percent between. 1996 and 2002, while the nation and California both
increased vehicle miles traveled.
California local governments are increasingly responding to the growing concern for
climate change. Scores of California cities have signed on to the National Conference of
Mayors Climate Change Program and are being assisted by the California League of
Cities and the California State Association of Counties, as well as other groups, in
developing local climate action plans.
Infrastructure funding policies directly and indirectly affect transportation and land use.
California has a unique opportunity to direct infrastructure investments contained in the
Governor's Strategic Growth Plan and approved by voters in November 2006. Funding
criteria for Propositions 1B, 1C, 1D, and 84 will determine the extent to which bond
monies contribute to better land use and reduce vehicle miles traveled.
The state should initiate a collaborative effort to include the Energy Commission,
Caltrans, and local and regional planning entities to develop "allowable' vehicle miles
traveled growth goals. This would establish the degree to which local and regional
jurisdictions could allow growth to occur while contributing to greenhouse gas emission
reduction goals.
Electric utilities in California are playing a larger and more explicit role in land use
planning. Spearheaded by the California Energy Commission, utilities are actively
planning for new large -scale infrastructure (for example, intrastate transmission lines).
through the Senate Bill 1059 (Escutia, Chapter 638, Statutes of 2006). On a more local
scale, how transmission lines are extended could influence the character of growth, its
implicit energy demand, and even, to some extent, the sources of energy available to it.
California Public Utilities Commission Rules 15 and 16 govern the provision of natural
gas and electricity to new residences; although density is not considered under these
rules, a de facto incentive to create high - density units may exist. New Jersey has taken
an innovative approach to this matter by issuing regulations that specifically integrate
smart growth principles into utility service policies. Anyone building in state - determined
non -smart growth areas must pay the full cost of utility line extensions.
Utilities are becoming more engaged in local land use planning and have a unique
opportunity to help plan new developments from inception, particularly on former
military bases, where large expanses of land are becoming available for residential and
commercial development. Utilities are involved in redevelopment planning at El Toro
Marine Corps Air Station,, Treasure Island, and Hunters Point, for example. Pacific Gas
and Electric Company's involvement with the latter two was the springboard for its
Sustainable Communities Program.
For all aspects of future land use and transportation, research and development remains
critical to reducing energy use and vehicle miles traveled and meeting climate change
targets. The 2006 Integrated Energy Policy Report Update charged the Energy Commission's
Public Interest Energy Research (PIER) Program with providing tools and conducting
research to assist the energy and greenhouse gas reduction planning efforts of local
governments. A number of currently funded projects support this charge. In the next
year, more than $2 million will be allocated for sustainable communities research. This
funding will support initiatives designed to better understand the interaction between
energy demand and environmental design principles, to identify infrastructure design
impacts on energy and the environment, and to identify design improvements that
would reduce energy use in California. Land use modeling tools are critical to these
initiatives.
The Energy Commission is also funding transportation research through PIER, with
projects designed to reduce petroleum consumption and greenhouse gas emissions
through increased vehicle efficiency and lower carbon fuels. Creation of new, and
validation of existing, transportation modeling tools used in these and similar research
efforts are important elements. Understanding the role of smart communities —those
that employ information technology to change how the community uses its physical
space —in reducing vehicle miles traveled will also be beneficial.
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Caltrans is developing improved, more integrated transportation models that will allow
for improved evaluation.of smart growth and should continue to do so. Focused research
is needed to maximize the benefits of smart growth and mode transfer from automobiles
to mass transit. Technologies that facilitate this transfer need more research to determine
the appropriate mix of strategies to reduce vehicle miles traveled.
Findings and Recommendations
Staff identified the following key findings and conclusions that the state and the Energy
Commission should consider for reducing energy use and greenhouse gas emissions
related to land use.
Findings
• With approximately 40 percent of California's greenhouse gas emissions attributed
to the transportation sector, significant efforts to reduce vehicle miles traveled are
needed to meet the state's greenhouse gas emission reduction goals. The state must
find a way to not only reduce the current 3 percent annual growth rate in vehicle
miles traveled, but begin to implement steps that will eventually reverse it.
• The research reviewed shows that increasing a community or development's density
and accessibility to job centers are the two most strongly correlated factors for
reducing vehicle miles traveled through design. More research is needed as to how
these factors cause the reductions.
• Even when using commendable current collaborative efforts to reduce vehicle miles of
travel by implementing smart growth principles, efforts fall far short of the
reductions needed in vehicle miles of travel needed to meet greenhouse gas emissions
goals.
• Existing tax polices, largely developed in response to Proposition 13 (1978),
incentivize and promote commercial sprawl. That form of land use development
provides local governments with much needed revenue for public services and
infrastructure but at the expense of smart growth strategies. The state should
consider tax policies to encourage regionally coordinated, energy -aware planning.
• Confronting issues such as housing, transportation mobility, economic development,
and local climate change planning requires a regional approach, one that will protect
the fiscal interests of urban, suburban, and rural communities while simultaneously
lowering energy use.
• While the state has limited land use authority, it does have some key leverage points
(California Environmental Quality Act, housing elements, and others) that can be
used to assist local governments in reducing energy use and greenhouse gas emissions
that result from land use planning choices. Thus, while land use authority is nearly
completely vested with local government, the state can use the disbursement of
transportation and housing funds to motivate collaborative planning at a regional
level.
• The state - sponsored Blueprint Planning Program has engaged nearly all of the state's
metropolitan planning organizations in long -range land use planning efforts. Several
of these organizations are now adopting plans to better coordinate land use and
transportation development. The plans strive to accommodate housing needs, reduce
vehicle miles traveled, and identify priority planning areas. The plans are in early
stages of implementation and may require technical, financial, and regulatory
assistance to achieve their goals. With some guidance, these same plans could link
energy and greenhouse gas analyses into the long -term growth planning process..
• Other states and regional governments have adopted preferred growth scenarios that
better coordinate land use and transportation development while accommodating
housing needs, reducing vehicle miles traveled, and identifying priority planning areas.
Some of the states and regions have channeled financial and technical assistance to
the identified priority planning areas in efforts to support the plan goals.
• Infrastructure funding policies influence the design and use of infrastructure projects.
The Governor's Strategic Growth Plan contained numerous programs to encourage
energy - efficient, climate - friendly land use, but project criteria (where they exist) for
many of the programs contain no energy or climate considerations. The next federal
transportation bill could significantly bolster the blueprint planning effort if it
mandates energy and climate considerations.
• Utilities have historically played only a limited role in land use planning efforts.
Coordinated planning between a utility and local government can produce many
mutual benefits in terms of demand management, infrastructure deployment,
distributed electricity generation, and installation of renewable energy production.
California investor -owned utilities have begun to engage with local and regional
governments in mutual planning efforts, but these partnerships are prevented from
reaching their full potential since the utilities cannot recoup the costs of their efforts.
• Understanding of land use impacts on energy demand, electricity generation and
transmission, and on greenhouse gas emissions are in the early stages of exploration.
Further research and development is necessary to explain and quantify the impacts
land use has on energy systems, including: the causality (rather than the established
correlation) of land development patterns and per capita vehicle miles traveled, the
potential for low energy design principles, and the use of community—scale distributed
and renewable generation technologies. There is a need for research to develop
modeling and decision - support tools to allow the integration of energy considerations
into future research and planning efforts. The Energy Commission is engaging in a
new area of research that will look at the integrated relationships among land use,
human behavior, urban design, environmental impacts, and energy under its new
sustainable communities research program.
Recommendations
1. The state should adopt a statewide growth management plan that is built from
required local regional plans and align state planning, financing, infrastructure, and
regulatory land use policies and programs to the plan.
.2. The state should require regional transportation planning and air quality agencies to
adopt 25 -year and 50 -year regional growth plans that provide housing, transportation,
and community services for expected population increases while reducing greenhouse
gas emissions to state - determined climate change targets.
The state's policies and programs that influence land use growth patterns should
encourage climate - friendly and energy - efficient development. To do this, there must be a
concentrated and collaborative process to identify where, and in what way, long -term
growth should, and should not, occur in the state. Confronting issues such as housing,
transportation mobility, economic development, and local climate change planning
requires a regional approach, one that will protect the fiscal interests of urban, suburban,
and rural communities while simultaneously lowering energy use and greenhouse gas
emissions. Therefore, any state plan should be composed of regional plans, developed
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by local governments, in a process facilitated by regional agencies. Once regional plans
are adopted, the state should build a statewide growth management plan-that is wholly
developed from the regional plans. Upon adoption of such a plan, state policies and
programs should be modified to align with and support the plan. To allow for programs
and development projects to mature, while also keeping the state and regional plans up-
to- date, the plans should be updated every 10 years.
• The Air Resources Board should adopt regional greenhouse gas emission reduction
levels to guide regional growth management plans in their AB 32 scoping plan. The
Board should include in the scoping plan clear guidance on greenhouse gas emissions
accounting for urban land use activities and a local government protocol for
assessing and tracking greenhouse gas emissions in jurisdictions.
• The Climate Action Team's Land Use Subgroup should convene a proceeding to
develop recommendations for measuring and reducing vehicle miles traveled.
• The Legislature should pass legislation that requires local governments to develop
regional growth management plans that will accommodate 25 years and 50 years of
housing, transportation, and community service growth needs while meeting Air
Resources Board -set regional greenhouse gas emission targets.
The legislation should:
• Require regional growth management plans to be adopted through a joint
process between a region's municipal planning organizations (MPOs) and/or
council of governments (COGs) and the local air quality management
districts (AQMDs).
• Require local governments to adopt the portion of the regional plan and
greenhouse gas emission reduction target that affects their jurisdiction into
their general plans. The plans should clearly identify areas where growth and
development should and should not occur.
• Require MPO /COGs and AQMDs to incorporate the plan and targets into
their planning, financing, and regulatory programs.
• Require the Governors Office of Planning and Research to collect the regional
growth management plans and combine them to create a statewide growth
management plan.
• Require state agencies to modify all programs and policies that affect land
use, including but not limited to, planning, financing, capital outlay, and
compliance, to incorporate and support the statewide growth management
plan. Colleges, universities and state buildings should also be required to be
consistent with the growth management plan.
• Require that the regional and statewide plans, and the local governments,
MPO /COGs and AQMDs adoption of them, shall be updated on 10 -year
schedule.
3. State infrastructure financing should encourage development that is concurrent with
the state'sgreenhousegas emission and energy consumption goals.
Infrastructure funding policies influence the design and use of local government infra-
structure and development projects. The state should build upon the Governor's
Strategic Growth Plans numerous programs to encourage energy efficient, climate
friendly land use by requiring that all state financing for infrastructure incorporate
energy and climate considerations.
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• The Legislature should pass legislation for all remaining Strategic Growth Plan bond
programs to incorporate climate change and energy consumption reduction measures.
• If the state adopts growth management legislation as described above, all state infra-
structure planning, financing, and compliance programs should only allow resources,
financial, technical, or otherwise, to be spent for development of projects in
identified growth areas.
• The Legislature should pass legislation that requires that all state infrastructure
planning, financing, and compliance programs should only allow resources, financial,
technical, or otherwise, to be spent for development of projects in complete
consistency with regional blueprints.
• The Legislature should pass legislation that requires that all state infrastructure
planning, financing, and compliance programs not allow resources, financial,
technical, or otherwise, to be spent for development of projects in areas not
consistent with existing regional blueprints.
4. The state should expand efforts to provide technical and financial assistance to
regional agencies and local governments to facilitate climate friendly and energy -
efficient planning and development.
Land use impacts on energy demand, energy generation, and transmission and on
greenhouse gas emissions are in the early stages of exploration. Further research and
development is necessary to explain and quantify the impacts land use has on energy
systems. There is a need for research to develop and update existing modeling and
decision- support tools to allow the integration of energy considerations into future
research and planning efforts. Many local governments and regional agencies state that
access to information and a lack of funding prevent them from implementing climate
friendly and energy - efficient development plans and programs.
• The state should continue to fund the Blueprint Planning Grant program and Blueprint
Learning Network to assist regional agencies and local governments in developing
regional growth management plans. The grant program should include energy
consumption and greenhouse gas emission reduction as primary outcomes of the
blueprints developed within the program.
• Upon passage of the above described growth management legislation, the grant
program and network should be modified to support development of the regional
growth management plans as specified in the legislation.
• The Legislature should pass legislation that implements the Proposition 84 Sustain-
able Communities Program. The program should focus on assisting regional and local
governments in developing, implementing, and incorporating into existing policies the
above mentioned growth management plans, blueprints, and climate action plans.
• The Energy Commission should convene a group of stakeholders, both within and
outside state government, to update its Energy Aware Planning Guide to provide
guidance for local governments attempting to adopt local growth management and
climate action plans.
• Using the Energy Commission's new Sustainable Communities research program and
the California Department of Transportation's existing research efforts as the base,
the state should convene a land use research group to identify research needs, carry
out research, and develop and disseminate tools and resources to land use
stakeholders.
CJ
5. State government should be a model for climate friendly and energy - efficient
development patterns.
The state, with the passage of AB 32, possessing the knowledge of what will be
necessary to meet the state's climate change and energy goals and attempting to
influence land use practices outside of its authority, has an obligation to model appro-
priate behavior in its own land use practices. While AB 857 provided the framework for
guiding state agency land use practices, there is no recourse for agencies that do not
comply. Currently, the Governor's Office of Planning and Research has authority only to
collect annual reports of agencies self- reported compliance with the law.
• The Legislature should pass legislation that builds upon AB 857's intentions by
adding greenhouse gas emissions reduction and energy consumption as priority
planning goals of the state. The legislation should require that state agencies engaging
in or financing the development of infrastructure or capital outlay projects report on
the project's compliance with state planning policies during each stage of its
administrative and legislative budget approvals. The legislation should requite that
projects that do not meet the state planning priorities should not be funded except in
situations where compliance would be proven infeasible by the sponsoring agency.
• The Climate Action Team Land Use Subgroup should develop greenhouse gas
emissions reduction and energy efficiency guidelines for state agency programs that
affect land use. State agencies should adopt the guidelines to the greatest extent
feasible.
6. The state should determine the extent to which state and local tax policies affect
and guide land use practices and correct polices that encourage growth inconsistent
with the state's growth management plan.
Existing tax polices, largely developed in response to Proposition 13, promote_
residential sprawl and increase vehicle miles traveled and greenhouse gas emissions. The
state should thoroughly review the effect of tax policy on land use patterns in the state.
• The Governor's Office of Planning and Research, working with local governments, the
building community, the university system, and other stakeholders, should study the
effects of state and local tax policy on land use practices in the state. The report
should contain recommendations for changing identified tax policy that leads to
detrimental land use practices.
7. California's utilities should play an active role in regional and local government
planning and development efforts at both the plan and project level to encourage
climate friendly and energy- efficient development in their service areas.
The state's investor -owned utilities (IOUs) and municipal utilities need to play a signif-
icant role in planning and development programs and projects. IOUs have stated that
their ability to do so is hamstrung by current energy efficiency program time constraints.
• The California Public Utilities Commission should allow utility- incentive and
technical- assistance programs with longer lead times to enable greater collaboration
with developers and local governments.
8. The state should work with its Congressional delegation to ensure that future federal
highway and other transportation and land use related legislation. and programs
include energy and climate change considerations.
CHAPTER 1: Introduction
California's land use patterns have significantly shaped our use of energy and the
associated production of greenhouse gases. With the state's population expected to
grow by 24 million additional residents by 2050, how the state manages that growth will
determine whether it meet its energy and greenhouse gas (GHG) emission reduction
goals.
The energy choices embedded in the location and design of the new homes, schools,
industries, offices, and transportation infrastructure that will be planned and built over
the next 50 years to accommodate California's new residents will last into the next
century. These choices will determine California's future energy demand and will affect
the degree to which the climate is changed by human forces.
Many of the policies currently being pursued to reduce the use of energy and the
production of GHG associated with land use are directed at the transportation sector
and are technology- based, such as the Low Carbon Fuel Standard (LCFS) and the
state's GHG regulations for vehicles (AB 1493). If the state is to meet its energy and
GHG emission reduction goals, it must also maximize the emission reduction potential
from smart land use development.
Growth in Vehicle Miles Traveled
Most urban growth over the last 30 years has been characterized by travel- inducing
features: low - density a lack of balance and accessibility among housing, jobs, and
services; inefficient infrastructure design; and a focus on single - occupancy vehicle travel.
This growth pattern has resulted in vehicle miles traveled (VMT) by California residents
increasing at a rate of more than 3 percent a year between 1975 and 2004, markedly
faster than the population growth rate over the same period, which was less than 2
percent.' This increase in VMT correlates to an increase in petroleum use and GHG
production and has led to the transportation sector being responsible for 41 percent of
the state's GHG emissions in 2004.2
The California Department of Transportation (Caltrans) estimates that VMT will
continue to increase at nearly 3 percent per year for the foreseeable future. Even with
ARB's greenhouse gas regulations and implementation of the LCFS, the increase in GHG
emissions from the increased travel will outweigh the policies' combined benefits. The
state, along with regional planning organizations and.local government, must address
VMT growth, and the most effective way to do so is through better land use planning
and development. However, VMT growth reductions alone will still not be sufficient to
meet the state's ambitious GHG reduction goals. Fortunately, smart growth has the
potential to reduce energy through many avenues, not just transportation.
'State of California, Departmentof Finance, RacelEthnic Population with Age and Sex Detail,
1970 -2004. Sacramento, CA, December 1998 and United States Government, Federal Highway
Authority, Highway Statistics 1975 -2004, Washington D.C., 2005.
2 State of California, California Energy Commission, Inventory of California Greenhouse Gas Emission
and Sinks: 1990 -2004, Sacramento, CA, December 2006, CEC- 600 -2006 -013, p. 8.
Land Use Planning
Smart growth is defined in many ways. The organization Smart Growth America has a
six -bullet point definition,3 and the Congress for New Urbanism Charter gives a 27-
point definition of its ideal of smart growth.' The Association of,Bay Area Governments
gives a broad definition of it as "development that revitalizes central cities and older
suburbs, supports and enhances public transit, romotes walking and bicycling, and
preserves open spaces and agricultural lands." Practically, most smart growth efforts
and metrics have focused on smart growth's ability to reduce VMT.
While this report focuses on the land use/ transportation connection, the Energy Commis-
sion recognizes the multiple interactions between land use patterns and energy use. As
the 2006 Integrated Energy Policy Report Update noted, "By including energy demand,
supply, and infrastructure as central factors in the land use planning equation, the State
and local governmerits can make intelligent use of all resources and meet energy related
goals. Broadening the definition of smart growth to encompass all energy saving strat-
egies is a first step in that direction. Increasing onsite production of renewable energy,
using distributed electricity generation (DG), orienting residences in relation to the sun,
increasing shading, incorporating roofs that reflect heat, and installing energy efficient
appliances are a few non - transportation related strategies that would fall under a
broader definition and produce significant energy savings. "6
Land use choices that result in lower energy use and VMT reductions are possible and
examples are beginning to emerge across the state. Partnerships, involving the state,
regional planning organizations and local governments, are developing plans for regional
transportation and land use development that are projected to result in less VMT
growth than if current or "business -as- usual" growth plans are adopted. The
development and effective implementation of these new, collaborative "blueprint" plans
could lead to growth that provides adequate housing and jobs for California's increasing
population and helps meet the state's climate and energy goals while maintaining and
enhancing quality of life. Blueprint planning is discussed in more detail in Chapter 5.
The ability of regional planning agencies and local governments to develop, adopt and
implement new land use plans will depend greatly on government (both state and
federal) and utility activities, policies, and assistance (both technical and financial).
While the state has very limited land use authority, the policies it develops in regard to
new infrastructure, utility funding, environmental review, and housing allocation are a
few of the leverage points that the state can use to assist local governments in growing in
an energy - efficient and climate - friendly manner.
In addition to policies and financing, there is a significant need to understand the effects
of current development practices and the potential for better practices to inform land
use decision making. One example is the need to augment tools that allow the state to
quantitatively assess the impacts of growth decisions and create tools and analytical
models to help regional and local agencies develop and implement more energy- efficient
plans. The California Energy Commission (Energy Commission) and other agencies are
'Smart Growth America, "What is Smart Growth ?" available online at
http://www.smartgrowthamerica.org/whatissg.html.
' "Charter of the New Urbanism," available online athttp: / /camorg /charter.
'Association of Bay Area Governments, "What is smart growth ?" available online at
http:/ /www.abag.ca.gov/ planning /smartgrowth /whatisSG.himI
State of California, California Energy Commission, Integrated Energy Policy Report,
Sacramento, CA, 2006, p. 73.
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beginning to address this need, but more resources must be invested in land use planning
and to assess the effectiveness of the state's current and future land use policies.
Organization of This Report
The following chapters examine:
Land use, energy, and climate policy context;
• The role of land use in the state's generation, demand for and use of energy and
emission of GHGs;
• Possible growth scenarios and their associated impacts;
• The role of regional planning organizations and utilities in shaping energy -aware land
use plans;
• Opportunities for the state to change infrastructure and development policies to
better facilitate energy - efficient and climate - friendly growth, and
• The current state of land use, energy, and climate research and future research needs.
Staff findings and recommendations are provided at the end of the report. The
appendix provides the current status of the land use and energy policy
recommendations made in the 2006 Integrated Energy Policy Report (IEPR) update.
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CHAPTER 2: Land Use, Energy, and Climate
Policy Context
A number of recent laws and policies will significantly impact the way in which the state
develops its land, uses energy, and emits GHGs. This section discusses the various state
policies that will influence and direct California's efforts to reduce energy and climate
impacts resulting from land use.
Executive Order S -3-05
On June 1, 2005, Governor Arnold Schwarzenegger signed Executive Order S -3 -05,
establishing GHG emissions reduction targets for 2010, 2020 and 2050. The Order
established targets to: reduce 2010 emissions to 2000 levels; reduce 2020 emissions to
1990 levels; and to reduce 2050 emissions to 80 percent below 1990 levels. The order
directed the Secretary of the California Environmental Protection Agency (CaIEPA) to
coordinate efforts to meet these targets.
Climate Action Team
As directed by Executive. Order S -3 -05, the Secretary of CaIEPA created the Climate
Action Team (CAT) to coordinate implementation of the Governor's GHG reduction
targets. The CAT is composed of, but not limited to, representatives from the following
agencies:
Business, Transportation, and Housing (BTH)
• 'Department of Food and Agriculture
• Resources Agency
• Air Resources Board
• California Energy Commission
• Integrated Waste Management Board
• California Public Utilities Commission
The CAT has developed and is refining a list of more than 40 strategies to meet the goals
of the Executive Order, including strategies to reduce the carbon intensity of vehicular
travel and to reduce VMT. Specifically included in VMT reduction strategies are
"Measures to Improve Transportation Energy Efficiency" and "Smart Land Use and
Intelligent Transportation," both to be implemented by BTH through Caltrans.
These strategies build on current efforts to provide a framework for expanded and. new
initiatives, including incentives, tools, and information that advance cleaner
transportation and reduce climate change emissions. On April 20, 2007 the CAT.
produced a document titled Climate Action Team Proposed Early Actions to Mitigate
Climate Change in California. This draft document refines and updates earlier estimates of
strategies to reduce GHG emissions. Combined, the two updated BTH strategies are
expected to eliminate 19 million metric tons of carbon dioxide (COZ) equivalent per year
by 2020.' This represents nearly 11 percent of the total reductions needed to meet the
'State of California Environmental Protection Agency, Climate Action Team Proposed Early
Actions to Mitigate Climate Change in California, Draft for Public Review, Sacramento, CA, April 20,
2007, p.7.
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Governor's 2020 targets The Energy Commission is playing an integral role in these
efforts, with Chairman Pfannenstiel chairing the CAT's Land Use Subgroup.
Measures to Improve Transportation Efficiency
CAT measures relating to transportation energy include the following:
• Incorporating energy efficiency and emissions reduction measures into the policy
framework governing land use and transportation, including the framework for
developing energy elements in state transportation and regional planning documents.
• Better coordination on cross - agency climate change and energy policy framework to
ensure a concerted effort and synergy among state agencies' climate change emission
reduction activities.
• Increasing incentives and accelerating technology applications to improve transpor-
tation system productivity and move toward cleaner and more efficient vehicles,
especially for the public sector fleet.
• Enhancing outreach and educational programs to bring a coordinated message of
sustainable transportation and root causes of climate change emissions.
Diversifying transportation energy infrastructure and advancing measures to slow
the growth rate. of vehicle miles traveled and excessive reliance on petroleum.
Smart Land Use
"Smart" land use' is an umbrella term for strategies, that integrate transportation and
land -use decisions. Such strategies generally encourage jobs /housing proximity, promote
transit- oriented development, and encourage high- density residential/ commercial devel-
opment along transit corridors. These strategies develop more efficient land -use patterns
within each jurisdiction or region to match population increases, and workforce and
socioeconomic needs for the entire population.
Assembly Bill 32
AB 32 (Nunez and Pavley, Chapter 488, Statutes of 2006) was signed into law by
Governor Schwarzenegger on September 27, 2006. The act requires ARB to do the
following:
By July 1, 2007, to adopt a list of discrete, early action measures that can be
implemented by regulation before January 1, 2010.
By January 1, 2008, to establish a statewide GHG emissions cap for 2020, based
upon 1990 emissions.
• By January 1, 2008, to adopt mandatory reporting requirements for significant
sources of GHG emissions.
'State of California Environmental Protection Agency Report to Governor Schwarzenegger and the
Caeifornia Legislature, Sacramento, CA, 2006, p. 64.
The CAT has coupled Smart Land Use and Intelligent Transportation. As noted on the Depart-
ment of Energy's Web page, intelligent transportation systems encompass abroad range of
wireless and wire line communications -based information and electronics technologies. When
integrated into the transportation system's infrastructure, and in vehicles themselves, these
technologies relieve congestion, improve safety and enhanct American productivi ty. This
report has limited discussion of ITS measures as they are not directly related to land use. ITS
research areas are discussed in Chapter 8, however, since regional planning organizations are
beginning to assess such measures to reduce congestion and emissions.
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• By January 1, 2009, to adopt a plan indicating how emission reductions will be
achieved from significant GHG sources via regulations, market mechanisms and
other actions.
• By January 1, 2011, to adopt regulations to achieve the maximum technologically
feasible and cost - effective reductions in GHGs.
AB 32 gives wide authority to ARB to take action to reduce GHGs from all "significant
sources." Right now, ARB does not plan to regulate land use and will depend on the
CAT to make recommendations on land use matters.
Petroleum Reduction Goal
In a joint report submitted to the Legislature and Governor in August 2003, the Energy
Commission and the ARB presented an overarching strategy to reduce California's
dependence on petroleum fuels for transportation energy. Based on the use of reduction
measures that were shown to be technically feasible and cost - beneficial, the agencies
proposed a goal to reduce on -road petroleum fuel demand to 15 percent below 2003
levels by 2020. The key recommendations to achieve this goal were to increase new
vehicle fuel economy and increase the use of non - petroleum fuels (alternative fuels).
The Energy Commission incorporated this goal and key recommendations into its 2003
Integrated Energy Policy Report, which was adopted in December 2003.
Assembly Bill 1493
AB 1493 (Pavley, Chapter 200, Statutes of 2002) directs the ARB to achieve the
maximum feasible and cost - effective GHG reductions from light -duty motor vehicles.
ARB adopted a rule limiting emissions from passenger cars and light -duty trucks according
to a schedule that begins in the 2009 model year and is fully implemented by model year
2016. This rule is currently being challenged in court by automobile manufacturers that
argue that ARB has exceeded its regulatory authority. Assuming the rule adopted under
AB 1493 is fully implemented and gasoline use reduction is accomplished in the manner
modeled by the Energy Commission staff for the 2005 Integrated Energy Policy Report, the
reductions in emissions will be equivalent to reducing gasoline consumption in 2020 to a
rate of 31 percent above 1990 gasoline consumption (and associated GHG emissions
levels). If the automobile manufacturers win their lawsuit and the ARB rulemaking is
reversed, gasoline demand from light -duty vehicles (and associated GHG emissions) is
expected to exceed 1990 levels by 46 percent in 2020.
Low Carbon Fuel Standard
The Governor's Executive Order 5- 01 -07, signed on January 18, 2007, calls for a reduction
in the carbon intensity of fuel used on California roadways. The objective is to achieve
at least a 10 percent reduction in the carbon intensity of California fuels used in
passenger vehicles by 2020. The Executive Order directs the Secretary of the CalEPA to
oversee development of a "life -cycle carbon intensity protocol" for measuring carbon
intensity. Participants in the protocol development include the Energy Commission,
ARB, University of California (UC) scientists, and other state agency staffs. This
analysis will become part of the state Implementation Plan for alternative fuels as
required by AB 1007 (Pavley, Chapter 371, Statutes of 2005) and will be submitted to
the ARB for consideration as an "early action" item under AB.32. Potential low- carbon
fuels include biodiesel, hydrogen, electricity, compressed natural gas, liquefied petroleum
gas, liquefied natural gas, and biofuels.
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The ARB completed its review of the LCFS protocols for adoption as an early action in
June 2007. After being adopted as an "early action' by the ARB, theregulatory process
at ARB is underway to put the new standard into effect. It is expected that the
regulatory process will be completed no later than December 2008. GHG emissions
reductions from the low- carbon fuel requirement have yet to be determined and may
vary depending on the results of the court challenge to AB 1493. Early action rules are
expected to become effective in 2010.
One provision of the rulemaking implementing AB 1493 allows for an alternative com-
pliance option to meet its requirements. The low- carbon fuel standard may be used by
fuel suppliers and /or automobile manufacturers to meet a portion of the AB 1493
requirements. If an alternative compliance strategy is used, then the low- carbon fuel
standard may not achieve fuel use reductions beyond those attributable to AB 1493.
This concern is discussed below, based on the report, A Low - Carbon Fuel Standard for
California; Part 1: Technical Analysis, May 29, 2007, authored by Alexander Farrell of UC
Berkeley and Daniel Sperling of UC Davis."
Historical and Projected VMT, Gasoline Demand, and
Population
Figure 1 shows California's growth in VMT, population, and gasoline and on -road diesel
consumption, all indexed to their 1990 value. Values plotted reflect growth from 1990.
As stated above, this is the year that AB 32 GHG control measures are required to be met
by 2020. Thus, Figure 1 can be used to view the historical growth in transportation fuel
use (and associated GHG emissions) relative to the historical growth in population and
VMT and the degree of reduction needed to return to 1990 levels. Also plotted in Figure
1 are projected gasoline and on -road diesel use, population growth, and VMT projected
by Energy Commission staff for the 2005 Integrated Energy Policy Report. The model used
to generate this data incorporates existing conditions and business -as -usual
assumptions about where and how people travel. Transportation fuel use is plotted
both with and without the effect of the AB 1493 rule, and one line shows the result with
AB 1493 and with the low- carbon fuel standard, assuming it is entirely additive to
reductions obtained by implementing AB 1493.
One observation from Figure 1 is that during 1990 to 2004, and as projected to about
2008, California's transportation fuel use grows more slowly than its population or
VMT. This implies that Californians are driving vehicles with increasing fuel efficiency.
A second observation from Figure 1 is that transportation fuel use under business -as-
usual conditions is growing steadily and is expected to be more than 150 percent of
1990 levels by 2025. This growth trend closely matches projected population growth
rates.
"In the LCFS report, four options for a compliance schedule are provided in Table 2 -2. Staff's
analysis is based upon the linear compliance option of Table 2 -2.
16
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c
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e
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Figure 1.
Historical and Projected Population, VMT, and Fuel Demand
Historical and Projected Population, VMT and Fuel Demand, with and without AB 1493 and
including Low Carbon Fuel Standard (all values scaled to 100% in 1990, AB 32 Goal for 2020)
190 °,G -------------- ---- --- ---- --- -...__._._... -- ---------- ------ - -.___
180 °b �. Future VMT with AS 1493
'• AFuture VMT without AS 1493
♦�A
x
170% ..... ----- .... ............................... ------------------------- - ✓.►..._. ...._....... ...............
.....
Projected Population w .A
•x
160 °,G ----. _----- -� ..... --- ........:_ ... --- ..--- ...----------- P i -- - -- -- ---- _--- --'- ------------- ---��-
A.
150%----- ....---- .------ ............._ --- ..... --- - - - -- ........ ... ------ + dissoi 8xxi
t ?Marc Ochant AB 4433
140 - --- ------------ --- -- ------ ---------+:�- ----...
,)1' . �:�' ...t Fnture 5aseiine+ d'aasei fact
130 °,G .... ............................... A' ,- . .. .y. .s- .a- u. es -?? .... damn ;,6 sio! AF 144a .......
VMT
120% ....._ .................. .. .X" ....... .... - -- ...
Population X' ,of °• a datmand with AS 1493 A Low
s '
'r`• ?: --- -- --- -- -- - -- --- Carbon Fuel Standard, linear' ...
110%-_` .... ...............................
compliance option
100% x� (assumes fully additive)
AS 2078 Petroleum
C= :as,�•i;; e+ a ^lx;s;ei iv;; rit:wpa ,:l R -------
80%
,ty �0 00 0ry 0p � 00 ^0 0^ry 0^a No 00 ti ry,yL l �
^N N ^ `0 0 o0f'0 '0R0 ry0.y0 ry0.y`L ry0 ryoy0 ry0.y0 `Lobo
Source: Energy Commission staff, 2007
Since GHG emissions from gasoline are such a large fraction of total state GHG emissions
(27 percent), it is likely that these emissions will have to be controlled to meet the goals
of AB 32. The goals have yet to be established for specific energy end -use sectors such
as transportation, but the overall goal represents about a 29 percent reduction in
projected 2020 emissions. This percentage can be used to compare the historical and
projected gasoline demand. From Figure 1 it can be seen that the gallons of
transportation fuel used in 2004 grew 20 percent above 1990 usage. Projected usage in
2020 is about 45 percent over 1990 consumption, if the AB 1493 rule is not approved by
the courts, and about 31 percent if the rule is upheld and implemented on the schedule
adopted by ARB.
Figure 1 also shows the effect of the LCFS, assuming implementation of the "linear'
compliance schedule and assuming that these reductions are fully additive to fuel use
reductions accomplished by AB 1493 and the Zero Emissions Vehicle Program. The
LCFS technical report shows annually decreasing carbon intensity ", but the effects of
the LCFS are projected only to 2020. Staff assumed that the linear decrease in Figure 1
continues until 2025. The additive effect of these strategies reduces future transportation
"Table 2 -2 of the LCFS technical report.
17
fuel consumption such that by 2025, transportation fuel consumption is only about 15
percent above 1990 consumption This indicates that even with AB 1493 and the LCFS,
further efforts would be needed to reduce the transportation sector's fuel consumption
and greenhouse gas emissions to their 1990 levels by 2020 as required by AB 32.
The degree to which transportation GHG emissions must be reduced is uncertain given
the status of several approaches to reduce transportation GHG emissions. However, it is
apparent that reduced VMT growth will be required to meet GHG reductions goals. It is
imperative that land use planning and infrastructure investments place a high priority on
reducing VMT growth. Meeting Executive Order 5- 3 -05's long -term goal, which requires a
reduction by 2050 to 80 percent below 1990 emissions levels, would certainly require
nearly carbon -free transportation and strong actions to reduce VMT.
If both AB 1493 and the LCFS are fully implemented (and also fully independent from
one another) by 2020, California's overall VMT could increase by more than 50 percent
over 2005 levels while GHG emissions from the on -road sector would be back to their
1990 levels since more miles could be driven with since emissions per mile would be
much less. If AB 1493 becomes fully effective but the LCFS is not implemented, the
allowable 2020 VMT increase is about 18 percent over 2005 levels. If AB 1493 is blocked
by ongoing court action and if the LCFS is likewise blocked, 2020 VMT would have to
decrease about 15 percent from 2005 levels to return this sector to its 1990 GHG
emissions levels. These are preliminary values that need to be more carefully developed
using a statewide stakeholder process. Furthermore, as the ARB implements AB 32
requirements, they may require sectors subject to state -level actions to attain levels
below their 1990 GHG emissions levels due to those sectors that do not fall within state -
level jurisdictions. A visible transportation sub - sector that may not be subject to state -
level action, and which is growing at the greatest rate, is jet fuel use.
Table 1. Statewide Allowable VMT Growth Rates in 2020
Relative to 2005
With AB 1493 and LCFS
w..e+f}vsk6M
With AB 1493 but without LCFS
Without AL 1493 or LCFS
Source: Califomia Energy Commission staf f, 2007
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CHAPTER 3: Land Use and Energy: Trends and
Drivers
Many researchers have studied the relationship between land use and energy. This
section examines the various trends that impel land use related energy use and some of
the drivers shaping current development patterns. These trends and drivers are critical
to understanding how different. land use patterns can affect VMT and energy use.
Vehicle Miles Traveled
As previously noted, VMT has been growing by 3 percent a year, and Caltrans expects
similar growth into the future. Caltrans modeling estimates assume current population
growth rates and the continuation of current development and transportation practices.
Research on the effect of land use practices on transportation patterns suggests that
different development patterns could reduce VMT growth rate.
A 2002 U.S. Environmental Protection Agency study 12 compared the impacts of
compact and sprawling counties on transportation patterns. Sprawl was defined as:
• A population widely dispersed in low density residential development.
• A rigid separation of homes, shops, and workplaces.
• A lack of distinct, thriving activity centers, such as strong downtowns or suburban
town centers.
A network of roads marked by very large block size and poor access from one place
to another.
Sprawl was measured for 83 of the nation's largest metropolitan areas.
The research suggests that counties with an inverse proportion of the above sprawl
characteristics had significantly less average vehicle ownership, daily VMT per capita,
annual traffic fatality rate, and maximum ozone level days. At the same time, shares of
work trips by transit and walk modes increased to a significant degree.
Density and Mixed Use
Researchers Ewing and Cervero have examined the variables that have a significant
effect on the overall VMT and vehicle trips of individuals and households, mostly,
through their effect on the distance people travel and modes of travel they choose."
Their research suggests that of the many factors that can be used to quantitatively analyze
development and transportation interactions, density may have the most significant
relationship to travel and transportation outcomes. Controlling for other factors, the
difference between low and high density U.S. metropolitan areas is more than 40 percent
daily per capita VMT. They found that doubling of neighborhood density can be expected
to result in approximately a 5 percent reduction in both vehicle trips and VMT per capita.
"Ewing R., R. Pendall, and D. Chen, "Measuring Sprawl and Its Impact," Smart Growth
America/ U.S. Environmental Protection Agency, Washington D.C., 2002.
"Ewing R. and R. Cervero, 'Travel and the Built Environment," Transportation Research Record,
Vol. 1780, pp. 87-114,20011.
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According to the research, accessible, highly dense, mixed -use communities result in
shorter length of vehicle trips. Of particular note was the difference between centrally
located developments and development along the outskirts of established areas. Areas
of high accessibility —such as center cities14— seemed to produce substantially lower VMT
than dense mixed -use developments in the exurbs." They found that trip frequencies
seemed to depend mostly on socioeconomic and demographic factors,, but overall VMT
and vehicle trips declined as accessibility, density, and /or land -use mixing increased.
As Dr. Reid Ewing noted in the June 26, 2007, Energy Commission workshop, "a smart
growth development plan that increases average density by 30 percent, emphasizes
infill, and mixes land uses to a high degree would be expected to reduce regional VMT
by about 15 percent per capita over 30 years at an average metropolitan growth rate."
A San Francisco Bay Area study found that, all else being equal, "(e)very 10 percent
increase in the number of retail and service jobs within 4 miles of one's residence is
associated with a 1.68 percent reduction in shopping and personal- service VMT...
(Also,) a doubling of accessibility to retail and service activities was associated with a
13.7. percent decline in daily hours spent getting to and from shops and consumer-
service outlets" (p. 483) .16
The results of a 2002 travel model that compared VMT between high- density and business-
as -usual growth scenarios showed that miles traveled in privately owned vehicles (POV)
would be 7.5 percent less in a high - density growth development than a business -as -usual
development (see Table 2, below). Also, transit miles traveled were 39 percent more.17
Table 2. Additional .Daily Travel Miles
in Privately Owned Vehicles (POV) and Transit -
Business -as -Usual and High - Density Urbanization Scenarios,
California, 2000 to 2025
Business -as -usual
POV Miles
163,957
Transit Miles
5,857
High- density
POV Miles
151,582
Transit Miles
3,157
Difference — Absolute
POV Miles
12,375 less
Transit Miles
2,300 more .
Difference — Percent
POV Miles
7.5 percent less
Transit Miles
39.0 percent more
Source: Burchell, Robert W., et al., 2002, Costs of Sprawl -2000, Transit
Cooperative Research Program, Washington, DC, TCRP Report 74
(modified from Table 11.30).
14 A city's downtown and adjacent neighborhoods.
" Prosperous Waal communities beyond the suburbs that become commuter towns for an urban
area.
16 Cervero, Robert and Michael Duncan, 2006, Which Reduces Vehicle Travel More: Jobs -
Housing Balance or Retail - Housing Mixing? Journal of the American Planning Association, Autumn
2006, Vol. 72, No. 4.
" Burchell, Robert W., George Lowenstein, William R. Dolphin, Catherine C. Galley, Anthony
Downs, Samuel Seskin, Katherine Gray Still, and Terry Moore, 2002, Costs of Sprawl -2000.
Transit Cooperative Research Program, Washington, D.C., TCRP Report 74.
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Jobs - Housing Balance
The length and number of work trips seem to be growing because of an imbalance
between the availability and affordability of housing with the number and earning power
of jobs.1B In the San Francisco Bay Area, average commuting vehicle miles grew by 23
percent between 1980 and 1990 as rising housing prices forced more and more people to
move farther out and commute into San Francisco. If jobs were brought into balance with
housing, "(all) things being equal, every 10 percent increase in the number of jobs in the
same occupational category within 4 miles of one's residence (would be) associated
with a 3.29 percent decrease in daily work -tour VMT. " 19
A balance of jobs and housing may reduce daily work VMT, which is important in
managing congestion, but work trips account for a small and shrinking percentage of
total travel. According to the National Household Travel Survey 2001 Highlights Report,
45 percent of daily trips were made for family and personal reasons, such as shopping
and running errands, 27 percent were made for social and recreational purposes, and 15
percent were made for commuting to work.20 "Nonwork is the major reason for travel
even in peak travel periods. It may also be linked to the rapidly increasing numbers of
commercial vehicles in service"(p. 2).21
In contrast, Hand y22 believes that the data showing increases in non -work VMT are
convincing but not conclusive. Nevertheless, non -work VMT is a large portion of travel,
which may not respond to traditional methods of reducing VMT in the same way.
Transit - oriented developments, for example, may be more successful if they are designed
to facilitate non -auto errand trips as well as transit commutes. The relationships between
possible explanations and travel behavior are complex, and researchers are just
beginning to try to understand them.
Social Equity
The jobs /housing balance could have a disproportionate effect on low -income
households. As jobs move from center cities to outlying areas, low- income communities
typically found in the more urbanized areas will have farther to commute and will likely
have fewer transportation options. California workers are more likely to work outside
the central city than those in other western metropolitan areas. 23 Fuel costs could
represent a greater proportion of a low- income budget as compared to moderate or high -
income budgets. If low- income workers migrate to the suburbs, again lack of
transportation alternatives would make it difficult for this population to reduce VMT.
"Cervero, Robert, 2003, "Growing Smart by Linking Transportation and Land Use: Perspectives
from California," Built Environment Vol. 29 No. 1, pp. 66 -78.
19 Cervero, Robert and Michael Duncan, 2006, "Which Reduces Vehicle Travel More: Jobs -
Housing Balance or Retail - Housing Mixing?. ', Journal of the American Planning Association,
Autumn 2006, Vol. 72, No. 4, p. 482.
' U.S. Department of Transportation and Bureau of Transportation Statistics, 2003, NTHS 2001
Highlights Report, BTS03 -05, Washington, D.C.
21 Nelson, Dick and John Niles, January 9-13,2000, "Observations on the Causes of Nonwork
Travel Growth," Transportation Research Board 79th Annual Meeting, Washington, D.C.,
Paper No. 00 -1242.
u Handy, Susan, Andrew DeGarmo, and Kelly Clifton, 2002, Understanding the Growth in Non -
Work VMT, Southwest Region University Transportation Center, Center for Transportation
Research, TexasA &M University System, Texas, Research ReportSWUTC /02/167802 -1.
"Sanders, Steve, 2001, A Strategic Scan of Smart Growth Issues in California.
22
Aging Population
As of July 1, 2005, an estimated 78.2 million Americans were between the ages of 45 and
54.24 The greatest growth in California population for the years 2005 -2015 will be in the
45 -54 age group (just over 1.5 million), followed by the 55 -64 age group (about 1.4
million), and the 65+ age group (about 1.3 million) 2' Researchers are not sure if.these
groups will drive more or less as they age. Retired people tend to travel less, but better
health and mobility could mean that they will travel more.26 Surveys of home buyers over
the age of 45 showed that home buyers' highest priorities are good access to shopping,
family, friends, and medical care. If home buyers move, it will be to smaller houses with
smaller yards.27 Market assessments conducted in 2003 and updated in 2005 to inform
the Sacramento Blueprint Base Case conditions agree with these findings.28
Residential Design and Energy Consumption
Studies have shown that the type of housing (such as multifamily) and the size of a
house have strong relationships to residential energy use. "Residents of single - family
detached housing, for example, are expected to consume 22 percent more primary energy
than those of multifamily housing and 9 percent more than those of single - family
attached housing "29 (p. 62). In addition, the type of housing (such as multifamily) and
the size of the house have a strong relationship to the density of development. Housing
in compact areas is more likely to be multifamily and smaller than housing in sprawling
areas. Depending on the household, energy consumption could be about 13 percent less
in a compactly developed area.
At least two other studies have validated the relationship between higher density and
lower energy use, as discussed by McGeogh et al. (2004) in their review of sustainable
urban design features.30 However, the relationship between higher density and lower
energy use may not be linear. One study indicates that if cities are too noisy and the
local air quality is poor, instead of using natural ventilation people will use their air
conditioners.31 Another study also suggests that if cities become too dense, in addition
24 http://www.census.gov/Press-
Release /www /releases /archives / facts_ for_ features _special_editions /006105.html.
' Center for Continuing Study of the California Economy, Opportunities and Challenges for the
California Economy, California Economic Growth Chapter 2,
' Handy, Susan, Andrew DeGarmo, and Kelly Clifton, 2002, Understanding the Growth in Non -
Work VMT, Southwest Region University Transportation Center, Center for Transportation
Research, Texas A &M University System, Texas, Research Report SWUTC /02/167802 -1.
2' International City /County Management Association (ICMA) with Geoff Anderson, 1998, Why
Smart Growth: A Primer, Smart Growth Network and ICMA.
' Levy, Stephan, 2004, "Growth Trends and Market Analysis for the Sacramento Region',
Center for the Continuing Study of the California Economy, Palo Alto, CA Prepared for
SACOG, Sacramento, CA.
29 Rong, Fang, 2006, Impact of Urban Sprawl on U.S. Residential Energy Use, University of
Maryland, http: / /hdl.handle.net /1903/3848.
' McGeogh, U, D, Newman, and J. Wrobel, (2004) "Model for Sustainable Urban Design: With
Expanded Sections on Distributed Energy Resources," Prepared for the Oak Ridge National
Laboratory by the Sustainable Energy Planning Office of the Gas Technology Institute; released
February 28, 2004, GTI Pro)ect # 303803 -23. Available online at http: / /www.necsc.us /docs/
ORNL_Design_Final. pdf
"Cooper, J. T. R., and A. Smyth. 2002. "Energy trade0offs and market responses in transport and
residential land Ouse patterns: Promoting sustainable development policy." Urban Studies
38(9):1573-1588.
23
! •
to reduced use of natural ventilation, the need for electric lighting goes up, and the use of
natural lighting goes down. 'Z Further research is needed to understand the implications
of urban noise, air pollution, density, and other land use characteristics on building
energy use, especially air conditioning and electric lighting.
Local Government Funding
Land use patterns, and the VMT resulting from them, are influenced by the tax revenues
available to local governments. One of the largest impediments to local governments'
embracing of energy - efficient and climate - friendly growth patterns is the structure of
local- government finance.
Property Taxes
Before Proposition 13 (1978), local property taxes were a primary source of revenue for
local governments. They were individually levied according to the city, county, school
district, and state's assessed value. Each entity could independently assess the value of
a property and levy a tax based on that value. Overall tax rates were often in the range
of 2 percent to 3 percent of a property's assessed value. Once enacted, Proposition 13
restricted the property tax rate to 1 percent of assessed value, and it prohibited
reassessment of property except when it was sold. Thereafter, annual tax increases
could amount to no more than 2 percent or the rate of inflation; whichever was less.
Proposition 13 significantly cut local tax revenue as compared to the prior period and
altered the way local governments fund public services and infrastructure. hi particular,
it encouraged cities and counties to impose heavier exactions — sometimes known as
developer fees or impact fees —to pay for roads, sewers, parks, and schools.
Other revenue demands, particularly education, have also crowded the property -tax
base, making it less available for local government purposes and reducing incentives to
improve the base through residential development. In 1992 and 1993, facing a $14 billion
shortfall in revenue, the Legislature shifted billions of dollars in local property tax
revenues to schools to meet the state's minimum funding obligation to schools under
Proposition 98. The shifted property taxes went into a fund established by the Legislature
called the Educational Revenue Augmentation Fund.
State Sales Tax
Local governments receive 1 / 7 of the state sales tax for sales in their local districts. So
in addition to exacting fees on developers, local governments also started encourages
development that Increased sales tax revenue, such as shopping malls, car dealerships,
and hotels. By contrast, land uses that produce only property taxes and have a high
public service cost, such as moderately priced housing, became less desirable. This
caused counties and cities to favor sales tax - generating retail development rather than
' Koen Steemers (2003), "Energy and the city: density, buildings and transport," Energy and
Buildings 35(1): 3 -14. This paper discusses land use affects on both transport and energy use,
particularly in the UK context. It points out that increasing density does not necessarily produce
energy savings; in fact, moderately high densities (more on the order of European cities than
Asian ones) may be the best from an energy standpoint. The authors point out that the two are
linked — that in a city where the noise and pollution from cats is minimized, the buildings can
be opened up, replacing powered ventilation, cooling and lighting with passive ventilation,
cooling and lighting.
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property- tax -bound residential uses, a circumstance commonly referred to as "the
fiscalization of land use."
As a result of these tax policies, local land use planning and decision making may
demonstrate a bias toward tax revenue - driven development. Such development often
may pit one community against another in an effort to attract businesses that generate
sales tax. Local competition for retail and auto malls rarely balances community housing
needs with the benefits of non -retail business and industry and may exacerbate trans-
portation and associated environmental problems. The competition for the sales tax
revenue can lead to local governments in the region offering escalating incentives to
attract retail establishments, often through waiver of fees, favorable zoning, and other
means. This competition for expected sales tax revenue is commonly referred to as "the
race to the bottom."
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CHAPTER 4: Land Use and Transportation
Planning Opportunities to Reduce Energy
Demand and Greenhouse Gas Emissions
Land use and transportation planing are linked and must be viewed together to under-
stand how they can jointly reduce energy demand and GHG emissions. This chapter
provides an overview of relevant programs, policies, and required plans that affect
current land use and transportation planning, and some of the state policy documents
that either do or could effect reductions in both energy demand and GHG emissions. The
processes and plans discussed in this chapter are in place and can become part of a
state effort to better integrateland use, transportation and energy resource management.
Current Approach to Land Use and Transportation
Planning
Authority for transportation and land use planning is divided unevenly among state,
regional, and local governments. Cities, counties, and "metropolitan planning organi-
zations" (MPOs) spend hundreds of millions of dollars annually on transportation, land
use and air quality planning.' Much of this planning is done to allocate hundreds of
billions of dollars of federal and state transportation funds via "metropolitan transpor-
tation plans" (MTPs). This planning effort involves every MPO in the state, along with
air district and local government partners. It can contribute in a coordinated way to
successful improvements in energy demand reduction and GHG emission reductions or it
can produce transportation funding plans and general plans' that will work against
resource efficiency for many years to come. Air quality, housing, employment, open
space, farmland, fuel demand and mobility, and global warming are some of the quality -
of -life factors that depend on coordination among MPOs and local governments and are
directly affected by the allocation of transportation dollars.
Regional Transportation Planning Process
Several mandatory transportation infrastructure, mobility, and funding reports and air
quality management reports affect transportation decision - making in California. These
include:
• Regional Transportation Plans (RTPs). RTPs meet. the long -term (25 -year planning
horizon) transportation needs of the metropolitan population. The plans outline the
development of mass transit, highway, airport, port, railroad, bicycle, and
pedestrian facilities. RTPs can promote construction of roads or transit to areas
previously less accessible thereby inducing growth into undeveloped land and/or
they can help to reduce pressure to grow outward by enhancing mobility within and
'Metropolitan planning organizations are often also the "Council of Governments." MPO is a
federal designation related to responsibility for preparing the RTP (see next page) and RTIP
(see next page) and receiving and allocating transpor rn
tation funding. Councils of Govement are
joint powers agencies established to analyze the relationship between policies in one subject
area and its impact upon other regional issues. SACOG, SANDAG and SCAG, for example, are
all both the COG and the MPO. ABAG and MTC are separately the COG and the MPO,
respectively, serving the Bay Area.
`A document containinga statement of development policies including a diagram and text setting
forth the objectives of the plan. The general plan must include certain state mandated elements
related to land use, circulation, housing, conservation, open space, noise, and safety.
27
adjacent to the established urban footprint. RTPs are updated once every seven
years. The level of sophistication of models, quality of data, and planning that
contributes to RTPs varies widely throughout California.
• Regional Transportation Improvement Plans (RTIPs). Also produced by MPOs,
RTIPs lay out short -term projects and funding in priority order. RTIPs are given to
Caltrans to constitute a state plan. RTIPs link funding to projects and can affect the
value of land thereby inducing investment either within or near the existing urban
footprint or in outlying areas.
• State Transportation Improvement Plan (STIP).' STIPS are the aggregate of all of the
individual RTIPs with the projects identified by Caltrans in its Inter - Regional
Transportation Improvement Program (MP) into one document. Projects within the
STIP receive 75 percent of the STIP funds, Caltrans controls only 25 percent of the
STIP funds through ITIP projects, and MPOs control 75 percent of the funds.
• State Air Quality Management Plan (AQMP). AQMPs are produced by Air Quality
Management Districts (AQMD) to project future air quality and address necessary
measures.to attain or maintain federal and state health -based ambient air quality
standards.
RTPs and RTIPs integrate the transportation plans of all of the cities and counties
within their jurisdictions. Once the RTIPs are funded and set into motion, transportation
fuel demand is essentially set for many decades. Transportation energy consumption
associated with the actions included in the RTIP can then only be affected by changes in
end -use technology or regulatory intervention.
Federal air quality regulations also affect the transportation planning process. When a
metropolitan area does not meet National Ambient Air Quality Standards (NAAQS),
federal Clean Air Act Amendments (CAAA) require local AQMDs to work with MPOs
to develop plans that bring RTIPs and the projected air pollution emissions from those
projects into conformity with CAAA. The CAAA allow the U.S. Environmental Protec-
tion Agency to impose sanctions or penalties, such as blocking federal highway funds
and imposing more stringent pollution offsets, when projects do not conform.
The urgent need to reduce vehicle emissions to attain conformity drives the effort to
reduce the number and length of vehicle trips, which is the only, albeit indirect, land -use-
linked transportation energy conservation program in place today.
MPOs are also developing other plans that could affect future land use planning. For
example, the Southern California Association of Governments 2006 State of the Region
Report included an extensive discussion of energy and a guest editorial by Ronald Cooke
on "The Energy Defensive Economy: Challenges Ahead for Local Government," which
discussed oil depletion, how it would affect local government, and recommendations for
local government action n
'The STIP is funded with both federal (70 percent) and state (30 percent) dollars. Although
the amount varies each year, about $1.5 billion -$2.0 billion total is allocated annually for the
projects prioritized in the STIP.
rs Southern California Associationof Governments, The State of the Region 2006, accessed at
http: / /www.scag.ca. gov/ publications/ pdf / 2006/ SOTR06 / SOTR06- EnergyExcerpt.pdf
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Local Land Use Planning Process
Local governments hold the majority of land use authority in California and express
their legally enforceable policies through required general plans and zoning codes. State
law requires these general plans to address land use, circulation, housing, open space,
conservation, safety, and noise. State law does not require general plans to address
energy although a few cities and counties have adopted an energy element making its
provisions mandatory within their jurisdiction. In 2003, of the nearly 500 cities and
counties in California that prepare general plans, 52 had energy elements of which only 5
had been written since 2000.37 By 2006, 7 of the original 52 had been dropped and 11
more added for a total of 56 general plan energy elements. Some of the dropped elements
may have become part of the required land use element or simply discarded.
Over the same time intervals, local governments in California have adopted many more
growth management elements in their general plans. Growth management elements are
not required by the state but once adopted become enforceable. By 2003, of the same
500 cities and counties in California, 80 had adopted growth management elements,
with 25 of these dated 2000 or later. Between 2003 and 2006, 10 more growth
management elements were adopted and 7 dropped for a total of 83.
These statistics are significant because they indicate that local governments are investing
in managing energy and growth, which greatly affects energy demand. They also indicate
that less than 20 percent of the cities and counties currently are likely to be addressing
energy within their adopted General Plans.
Along with energy and growth management elements, many cities in California have
adopted urban growth boundaries (UGBs). UGBs are mapped lines that separate an
urban area from its surrounding greenbelt of open lands. UGBs help protect open land,
and they encourage infill and higher densities, which in turn support more3public transit.
In California, UGBs can be established by voters or by city council action.
Issues such as housing, transportation and congestion, economic development and air
pollution and reducing GHGs lend themselves to, and in some cases require, a more
regional approach. City and county boundaries and. authority can limit an agency's
ability to affect change as it may require collaboration from regional peers to effectively
attain its policy goals. An example of this is the adoption of smart growth principles by
a city attempting to reduce sprawl by limiting low- density development on its boundaries.
If the city's regional partners do not support the city's efforts by adopting similar policies
and allowing the same kind of low- density, sprawling development in its jurisdiction,
then the region will still suffer from the negative impacts of the development.
State Land Use Planning
The state has typically played a limited role in direct land use planning, rather conducting
activities that more indirectly influence land use decisions. State officials prepare functional
plans to guide department programs, decisions and projects. The Governor's Office of
Planning and Research (OPR) is responsible for collection of the state's functional plans.
"The California Planners' Book of Lists 2005, Governor's Office of Planning and Research,
Sacramento; CA. Compiled from results of 2004 survey of local governments.
38 Greenbelt Alliance, Urban Growth Boundaries, www. greenbelt .org /downloads /about /ugb.pdf
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The state took a major step toward encouraging smarter growth with the passage of AB
857 (Wiggins, Chapter 1016, Statutes of 2002), which laid out three planning priorities
for state agencies: promote infill development and social equity in existing communities;
protect and conserve environmental and agricultural resources; and achieve more
efficient use of land, transportation, energy, and public resources outside the infill areas.
AB 857 also requires the Governors Environmental Goals and Policy Report (EGPR) to be
consistent with these planning priorities. The EGPR is intended to provide a 20- to 30-
year overview of state growth and development as well as articulate the Governor's
environmental goals and policies including, but not limited to, land use, population
growth and distribution, development, the conservation of natural resources, and air
and water quality. The EGPR forms the basis for judgments about major state
investments and capital projects, including the allocation of state resources through the
budget and appropriations. process. The EGPR addressed the issues and initiatives
relating to climate change as of the date of its preparation. The EGPR was transmitted
by OPR to the state Legislature on November 10, 2003, but was never finalized or
formally approved, as required by Government Code Section 65046.
Additional areas where the state plays a role (albeit indirect) in land use planning include
the California Environmental Quality Act updates (OPR), the California Transportation
Plan (Caltrans), housing element updates (Department of Housing and Community
Development), the California Water Plan (Department of Water Resources), stormwater
planning (State Water Resources Control Board), and infrastructure construction and
financing.
California Environmental Quality Act
The California Environmental Quality Act (CEQA) requires state and local agencies to
identify and reduce, if feasible, the significant, negative environmental impacts of land
use decisions. The documents prepared under CEQA (Environmental Impact Reports, or
EIRs) rarely address energy consequences or greenhouse gas emissions. In late 2006, the
Center for Biological Diversity filed a lawsuit against the city of Banning, seeking to
overturn the approval of a large housing development because the city did not evaluate
the effect of GHG emissions from the increased vehicle trips on global warming. The
California Attorney General and others sued San Bernardino County in April 2007 for,
allegedly, violating CEQA by failing to address the impact of GHG on climate change in
the county's new 25 -year general plan EIR.
CPR's State Clearinghouse coordinates the state -level review of environmental documents
under CEQA and provides technical assistance on land use planning and CEQA matters.
OPR is responsible for updating CEQA, as appropriate. CEQA guidelines do not
currently state if and how emissions of CCZ are to be evaluated. The ARB; as the
implementing agency for AB 32, has not issued any guidance to cities or counties on how
GHG emissions and AB 32 should be evaluated in CEQA documents. The Association of
Environmental Professionals (AEP) has prepared a draft white paper on how to
analyze GHG emissions and global climate change in CEQA documents. A range of
possible approaches are identified; however, critics have stated that it is premature for
local governments to define significance thresholds, quantify emissions, and mandate
mitigation measures for GHG emissions without guidance from the state.
California Transportation Plan
The California Transportation Plan (CTP) is a long -range transportation policy plan
that provides for the movement of people, goods, services, and information at a
statewide/ interregional level. The CTP offers a blueprint to guide future transportation
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decisions and investments that are intended to ensure California's ability to compete
globally, provide safe and effective mobility for all persons, better link transportation
and land use decisions, improve air quality, and reduce petroleum energy consumption.
The CTP provides a vision for California's transportation system and explores major
trends that will likely influence travel behavior and transportation decisions over the
next 20 -plus years. In the context of these future trends and challenges, it provides
goals, policies, and strategies to reach the vision. To fulfill the CTP's vision of improved
mobility and to reduce congestion, the Schwarzenegger Administration launched a
comprehensive transportation mobility initiative — "GoCalifornia." GoCalifornia is a
mobility action plan designed to decrease congestion, improve travel times, and increase
safety, while accommodating future growth in the population and the economy. It
provides a roadmap to target transportation dollars to those improvements and
investments that yield the greatest benefit for all Californians now and in the future.
How these actions are carried out will likely affect future land use patterns and VMT.
Housing Element Updates
State law requires each city and county to adopt a general plan containing at least seven
elements including housing. Unlike the other mandatory general plan elements, the
housing element, required to be updated every five years, is subject to detailed statutory
requirements and mandatory review by the state Department of Housing and Community
Development (HCD). HCD is charged with reviewing local housing elements for
compliance with state law and to report its written findings to the local government. .
Housing element law requires local governments to adequately plan to meet their existing
and projected housing needs including their share of the regional housing need.
HCD must assess a Regional Housing Need Plan (RHNP) to ensure it promotes the
following objectives:
• Increase the housing supply and the mix of housing types, tenure, and affordability
in all cities and counties within the region in an equitable manner.
• Promote infill development and socioeconomic equity, protect environmental and
agricultural resources, and encourage efficient development patterns.
• Promote an improved intraregional relationship between jobs and housing.
California Water Plan
The electricity used to pump and treat water for delivery to California customers and its
subsequent use by those customers represents about 20 percent of the total electricity
used in the state per year.' The California Water Plan is the state's strategic plan for
managing water resources statewide. It is updated every five years by the California
Department of Water Resources (DWR). The Water Plan is a key element in the
Governor's Strategic Growth Plan. The last update, released in 2005, outlined two key
initiatives:
• Promote integrated regional water management through regional partnerships and
diversified management strategies.
• Maintain and improve statewide water management systems.
" http: / /www. energy .ca.gov / 2005publications/CEC- 100 - 2005 - 007 /CEC -100- 2005 -007-
CMF.PDF
31
• •
The 2005 Water Plan stated that "DWR will work with other state agencies to develop
and help implement strategies to reduce greenhouse gas emissions in the state in
accordance with the goals established by Executive Order S- 03 -05. DWR will provide
expertise to help identify means of energy savings for the storage, conveyance,
distribution, and use of water. DWR will describe the energy use characteristics of
various resource management strategies in the next California Water Plan."
California Water Plan Update 2009 will track and report progress on action plan items
and initiatives, and will address the potential impacts of climate change. The update
will be prepared with 16 other state agencies.
Delivery of water from California's State Water Project (SWP) represents the largest
single use of electrical energy in the state. It accounts for 2 to 3 percent of all the
electricity consumed in California.' In a letter to Senator Don Perata in April 2007,
DWR Director Lester Snow stated that the agency has filed an intent to register with the
California Climate Action Registry and will perform a complete assessment of its GHG
emissions and move to reduce those emissions .41
Stonnwater Plans
In early 2005, the State Water Resources Control Board adopted sustainability as a core
value for all California Water Boards' activities and programs and directed California
Water Boards' staff to consider sustainability in all future policies, guidelines, and
regulatory actions. One of the outcomes of this is low- impact development (LID). Unlike
traditional stormwater management, which collects and conveys storm water runoff
through storm drains, pipes, or other conveyances to a centralized storm water facility,
LID takes a different approach by using site design and storm water management to
maintain the site's pre - development runoff rates and volumes. The goal of LID is to
mimic a site's predevelopment hydrology by using design techniques that infiltrate, filter,
store, evaporate, and detain runoff close to the source of rainfall. LID is seen as an
alternative to conventional storm water management. This can reduce the amount of
stormwater needed to be treated as well as recharging groundwater supplies, which can
reduce the need to import energy intensive water supplies. As pointed out at the Energy
Commissions June 26, 2007, workshop, hard surfacing and flood control have changed
the stormwater runoff pattern within the Chino Basin of California, resulting in the loss
of more than 40,000 acre -feet per year that otherwise would have been recharged to
groundwater.42 The energy value of the lost storm water was, on average, 2250 kWh per
acre -foot.
4° http: / /energy.ca.gov /pier /iaw /industry /water.html
4t Departmentof Water Resources, Letter to the Honorable Don Perata, Senate Presidentpro
Tem, April 13, 2007
"Dr. Robert W ilkinson, University of California, presentation at the June 26, 2007, workshop
on "Land Use, Energy, and Climate Change."
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CHAPTER 5: Integrating Transportation and Land
Use Analysis, Planning, and Process
California Regional Blueprint Planning Program
The Regional Blueprint Planning Grant Program43 was initiated in 2005 by the Secretary
of Building, Transportation and Housing and is managed by Caltrans. This grant program,
distributing nearly $5 million annually in regional blueprint planning grants, is intended
to better inform regional and local decision - making. The program involves the proactive
engagement of all segments of the population, as well as critical stakeholders in the
community, business, academia, developers, construction, and environmental
organization, to foster consensus on a vision and preferred land use pattern in a given
region. It is anticipated that the regional blueprint planning grants will build capacity for
regional collaboration and integrated planning that will in turn enable regions to plan to
accommodate all their future growth, thereby reducing sprawl. Regional blueprint
planning is underway in 14 of 18 MPOs within California.44 Two key goals of the
program are to:
• Foster a more efficient land use, pattern that (a) supports improved mobility and
reduced dependency on single- occupant vehicle trips, (b) accommodates an
adequate supply of housing for all incomes, (c) reduces impacts on valuable habitat,
productive farmland, and air quality, (d) increases resource use efficiency, and (e)
results in safe and vibrant neighborhoods.
• Provide consumers more housing and transportation choices.
Blueprint Learning Network
The Business, Transportation and Housing Agency established the Blueprint Learning
Network (BLN) to work with the MPOs and Councils of Government (COGs) to
further advance regional blueprint planning. BLN is a team that includes, but is not
limited to: the Resources Agency, Caltrans, the California Department of Housing
and Community Development, the California Center for Regional Leadership
(CCRL), and the University of California at Davis. The program helps state agencies
make better infrastructure investment decisions and lead to a better quality of life in
California based on the environment, economy, and equity. The purpose of the BLN
is to work with regional teams (MPOs and stakeholders) in a series of workshops on
overcoming the challenges and obstacles to effective regional blueprint planning.
Energy in Blueprint Planning — Current and Potential
Energy was not a stated component of the Blueprint Planning Grant Program. However,
MPOs have been independently working on energy issues to understand the risk
imposed to regional mobility from energy supply disruptions, peak oil, cost increases,
and emission regulation changes, including GHG emission reduction. For example, the
executive director of the Southern California Association of Governments (SCAG)
hosted a "Peak Oil Seminar" to discuss risk associated with long -term disruptions in
"State of California, Departmentof Transportation, California Regional Blueprint Program,
2005 Grant Application Package, Sacramento, CA, 2005.
" Presentation,.Blueprint Leaning Network annual meeting, November 29-30,2006, Anaheim,
CA.
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transportation fuels to the Los Angeles' basin.' Sacramento's MPO has published an
energy issue paper and article in the Regional Report to inform citizens and decision
makers about the possible scope of the issue.' SANDAG has partnered with the Energy
Commission to update its Regional Energy Plan to incorporate the state's electricity
sector "loading order, "" Renewables Portfolio Standard, GHG goals, and other state
polices that have been enacted since 2002 into its long -range planning efforts. Energy
Commission staff is developing relationships with the BLN to better integrate energy
and GHG planning into the blueprint planning process.
The California investment in regional blueprint planning could have tremendous benefits
to both transportation and building energy savings and GHG gas emissions reduction.
Of key importance is that blueprint plans are the joint product of MPO and local
government collaboration. MPOs hold transportation planning and funding authority.
Cities and counties possess land use authority. The MPO Board of Directors is composed
of elected officials from the cities and counties of the MPO's jurisdiction. The MPO,
then, is an ideal forum to build consensus and political will, deploy legal authority to
take action and schedule funding to implement land use, transportation, and energy
plans.
Below are descriptions of four of the leading blueprint projects for various sized regions
Sacramento Blueprint Project
In 2002, the Sacramento Area Council of Governments ( SACOG) board of directors
created the Blueprint Project in response to the region's projected congestion and poor
air quality. Citizens and elected officials worked together, using the I- PLACE3S
interactive computer software and extensive outreach, to improve land use and
transportation decision making. All cities and counties of the Sacramento region voluntarily
chose to participate in Blueprint. Many began to implement local portions of the results
in advance of the final adoption, and several SACOG members are integrating the
Blueprint policies into the update of their general plans.
Ultimately, the region's elected leaders, city and county planning departments, developers
and citizens will use the detailed technical data developed during the study to make
land use decisions that will influence how ggrrowth will happen now and in years to come.
Blueprint data and maps will be used by the public and the SACOG to make choices
about the transportation projects that will best serve the region as it changes.
Developing the Regional Blueprint Study
To begin the project, a detailed long -term "base case" scenario was developed. The base
case provided data and maps depicting the region in 2050, assuming the present
regional growth patterns, transportation system, air quality, and other parameters were
not significantly changed and growth proceeded according to market projections based
upon the status quo. The base case was used as a benchmark from which to compare net
' "Peak Oil Seminar," personal conversation with Mark Pisano, Executive Director, SLAG,
November 2006.
46 Sacramento Area Council of Governments, Regional Report, FebruaglMarch 2007, Sacramento,
CA, 2007, (pp. 4-8).
' The loading order is used to ensure that the most desirable electricity option is used first. The
loading order consists of decreasing electricity demand by increasing energy efficiency and demand
response, and meeting new generation needs firstwith renewable and distributed generation
resources and, second, with clean fossil- fueled generation.
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change created by the other scenarios. The sprawl, air pollution, traffic congestion, and
VMT projected by the base case were considered unacceptable to the participants of the
initiative's public forums. 48
A series of 37 neighborhood, county, and regional level workshops ultimately produced
a set of regional scenarios. All levels of scenarios compared to and contrasted with the
base case with at least three alternative development scenarios and allowed workshop
participants to make changes and assess the net results. The relationships between
mobility, employment, housing, open space, air quality, fuel demand, and land use
options over time (to 2050) were quantified and discussed. Regional population and job
growth projections were held constant among all the scenarios; each scenario accommo-
dated the same number of new people (about 1.5 million by 2050) and the same number
of new jobs (about 750,000 by 2050). A "preferred scenario' was ultimately developed,
analyzed, and unanimously adopted by. the 31 locally elected city and county officials
that make up the SACOG Board of Directors.
Land Use Related Transportation Fuel Demand Findings
The base case scenario required 661 square miles of new land to be developed to
accommodate growth, most of which would occur in outlying areas where land is
cheaper and homes and lots can be large. The preferred scenario, on the other hand,
required 46 percent less new land to be developed than the base case. Much of the new
housing and jobs was located in already developed areas, either on vacant parcels or on
less desirable existing properties. The preferred scenario reduced CO2 and particulate
emissions by about 14 percent compared to the base case scenario. VMT dropped lower
than the 2005 per household number (41.7 miles per day) down to 34.9 miles per day
even with an additional 1.7 million people. Table 3 compares the two scenarios.
Table 3. Key Statistics Comparing Base Case Scenario 2050
and Regional Preferred Scenario 2050
VMT per household per
47.2
34.9
12.3 fewer miles per
day (excludes commercial
household per day,
vehicles)
a 2576 reduction
People Living in Areas with
26%
53%
27% increase
Good Mix of Jobs and
Housing
Growth Near Transit
5% New Jobs
41% New Jobs
36% more new jobs
near transit
27o New Housing
387o New Housing
3676 more new
homes near transit
Additional Urbanized
666 square miles
304 square miles
362 fewer square
Land
miles urbanized
Daily Vehicle Minutes of
81 minutes
67 minutes
14 fewer minutes
Travel (per household per
per day (more than
day)
two 40 hour work
weeks per year)
Per Capita Carbon Dioxide I
Set at 1007o
85% of Base Case
15% less than the
'Mary Lynn Vellinga, "Forum favors anew direction for development", The Sacramento Bee,
Saturday, May 1, 2004.
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and Small Particulate
Base Case per
Emissions from vehicles
capita
(includes commercial
vehicles)
Source: SACOG, Blueprint Program, 2005.
SACOG is using the public input, data, and maps developed from the regional blueprint
as the basis for its federally mandated.2007 Metropolitan Transportation Plan (MTP),
now in process. This MTP will produce a prioritized list of transportation projects to
expend $42 billion for the six - county Sacramento Region over the next 20 years. A wide
selection of mobility options and estimated costs were provided to citizens in a large
series of well- attended public workshops, similar to the Blueprint workshop series.
Outcomes are being used to direct the development of the MTP.
The Sacramento Blueprint Project is an excellent example of the degree to which
collaborative planning could reduce the need to travel. It is important to understand that
population growth is outpacing the rate at which land use options alone can reduce
VMT. So, increased engine efficiencies and cleaner fuels are also a critical part of
reaching the GHG targets for absolute reductions back to 1990 levels that are needed to
meet 2020 GHG emissions reduction goals, as shown in Table 1.
San Diego Association of Governments
In 2004, the San Diego Association of Governments (SANDAG) Board of Directors
unanimously adopted the 'Regional Comprehensive Plan" (RCP) for the San Diego
region. The RCP serves as the strategic framework for how the region can grow in a
smarter, more sustainable manner to the year 2030..The RCP is based on three guiding
principles:
• Better connect transportation and land use plans using smart growth principles.
• Use transportation and land use plans to guide environmental and infrastructure
decisions.
• Use collaboration and incentives to implement regional goals.
One of the key components of the RCP is the Regional Energy Strategy (RES), prepared
by the San Diego Regional Energy Office and adopted by SANDAG in 2003. Energy
indicators based on goals of the RES have been included in the performance monitoring
for the.RCP each year.
Smart Growth Map
The Urban Form chapter of the RCP calls for the development of a smart growth map. In
June 2006, the SANDAG Board accepted the first -ever "Smart Growth Concept Map" in
the San Diego region. The concept map identifies locations within the region that can
support smart growth and transportation investments and will be used to identify
transportation and transit needs in the 2007 RTP. It also will be used to determine
eligibility to participate in the region's long -term $280 million Smart Growth Incentive
Program (SGIP) funded through TransNet, the half -cent sales tax approved by voters in
1987 to finance transportation improvements.
The Smart Growth Concept Map contains almost 200 existing, planned, or potential
smart growth locations in seven categories of smart growth "place types" identified in
the RCP. About 40 percent of the areas on the map qualify as "existing/planned" smart
growth areas, and the remaining 60 percent represent potential smart growth areas. The
37
map is dynamic and will be updated periodically to reflect changes in local land use
plans or regional transportation plans that may influence the designations of the smart
growth locations.
2007 Regional Transportation Plan Update
The RCP recommends that the next update of the regional transportation plan (RTP)
incorporate smart growth principles from the RCP, placing an emphasis on public transit
and other modes of transportation associated with smart growth. SANDAG is updating
the RTP, with adoption of the 2007 RTP update scheduled later this year. Smart growth
areas will receive higher priority for transportation investments, lending additional
support to the smart growth principles contained in the RCP. The RTP Update calls for
the development of a regional climate action plan. This plan will be developed as part of
the update to the RES.
San Francisco Bay Area
Smart Growth Strategy /Regional Livability Footprint Project
In 1999, San Francisco Bay Area regional agencies responsible for transportation planning,
environmental protection, and regional planning came together to promote and nurture
smart growth efforts in the region. At the same time, the Bay Area Alliance for Sustainable
Development, a coalition of 40 organizations representing business, the environment,
social equity, and government, began an ambitious effort to develop public consensus
and support for a "regional livability footprint," that is, a preferred land -use pattern
that could direct the Bay Area toward a more sustainable future. In 2000, the regional
agencies and the Bay Area Alliance combined their outreach efforts and created the
"Smart Growth Strategy/ Regional Livability Footprint Project 49"
From 2000 to 2002 in numerous meetings, stakeholders conceptualized how future
growth should occur in their individual neighborhoods and counties, and in the region as
a whole. Business -as -usual growth to 2020 would convert 83,000 acres (more than twice
the size of San Francisco) of undeveloped land to urban use and result in insufficient
housing within the nine Bay Area counties for the number of workers expected by 2020.
Housing would be needed outside the Bay Area, requiring 45,000 acres in neighboring
counties, significantly increasing VMT.
By contrast, the smart growth land -use scenario, calling for compact, mixed -use
communities that are dose to transit lines and employment centers, would increase the
urbanized footprint of the Bay Area by less than 16,000 acres, or 2 percent, and provide
substantially more housing. The scenario increases the proportion of new housing
affordable to very low- and low -income households, from 16 percent to 41 percent. The
smart growth scenario emphasized development in cooler, bayside parts of the region,
and in multifamily units, thus lowering heating and cooling demand. This combination of
changes is expected to result in a 17 percent reduction in water consumption —down
from a current 300 gallons a day to an average 250 gallons a.day —in new housing units.
Under the smart growth scenario, the Metropolitan Transportation Commission
estimates the number of public transit riders to increase by one -third over current levels.
The ability to provide more housing in cooler parts of the Bay Area instead of outlying
areas would not only reduce VMT but would also reduce energy demands for heating
"Bay Area Joint Commission, Smart Graavth Strategy Regional Livability Footprint Project: Shaping
the Future of the Nine - County Bay Area. Final Report, Bay Area, CA, 2002.
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and cooling. hh the Bay Area, each mile from the coast is associated with a 1 degree
increase in temperatures'
FOCUS
FOCUS, short for the Focusing Our Vision initiative, follows up on the 2002 livability
project. It is a regional planning effort partially funded by a Blueprint grant and led by
the Association of Bay Area Governments (ABAG) in coordination with the Bay Area
AQMD and the Bay Conservation and Development Commission (BCDC).
Local governments in the nine county San.Francisco Bay Area can apply for regional
designation of an area within their community as a priority development area (PDA).
Forty -nine Bay Area jurisdictions have submitted PDA applications and indicated a
need for over $20 billion in infrastructure funding. One of the recommendations of the
recently developed Bay Area Climate Protection Program is that climate change issues
be integrated into the FOCUS program and that climate change criteria be included in the
ranking of priority areas for incentive funding. 1
Metropolitan Transportation Commission Initiatives
The Metropolitan Transportation Commission (MTC) draft proposal for the 2035 RTP
is assessing the feasibility of a 10 percent reduction in VMT per capita (from current
VMT) and a 40 percent reduction in transportation CO2- MTC and its partners
anticipate smart land use will be important in reaching these goals 52 MTC is developing
"wedge" strategies to bridge short -term and long -term CO2 goals. The strategies address
land use, vehicle efficiency, smart driving, and transit use and will be evaluated during
the RTP update process. MTC is also implementing a "transit- oriented development"
(TOD) policy designed to promote cost - effective transit, ease regional housing shortages,
create vibrant communities, and preserve open space.
San Luis Obispo Council of Governments ( SLOCOG) Blueprint Planning
The SLOCOG Regional Blueprint (Community 2050) is a joint effort of the regional
government, air district, Local Area Formation Commission and the San Luis Obispo
County Planning Department. The SLOCOG Blueprint will use scenario planning
methods, UPLAN and I- PLACE3S land use planning tools, and public workshops to
address relationships among housing, the economy, employment, the environment,
agricultural protection and transportation. The results will be used as the basis for the
"regional transportation plan" (RTP). SLOCOG's member city and county governments
will be encouraged to integrate the Blueprint and RTP principles and policies into their
planning documents. As part of the Community 2050 process implementing Blueprint
Planning. SLOCOG convened a "Regional Smart Growth Leadership Event" in April 2007
to engage stakeholders in a regional dialogue on smart growth and new urbanism.
"Association of Bay Area Governments, Bay Area Air Quality Management District, Bay
Conservation and Development Commission and Metropolitan Transportation Commission,
Comments on Committee Workshop /Staff Report, June 29, 2007.
51 Association of Bay Area Governments, Bay Area Air Quality Management District, Bay
Conservation and Development Commission and Metropolitan Transportation Commission, Bay
Area Regional Agency Climate Protection Program—CONSOLIDATED
RECOMMENDATIONS, May 4, 2007, accessed at http:/ /www.mtcca.gov /planning /dimate/
JPC -C 1 im a t eProtect ionProgram.pd f.
"Joint Policy Committee - Regional Planning Program, Comments submitted on the June 26, 2007
workshop m the Role of Land Use in Meeting Cal ifomia's Energy and Climate Change Goals,
July 18, 2007.
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Local Government
There are many efforts in local governments throughout California to incorporate smart
growth, address climate change concerns, and reduce energy demand. By implementing
innovative voluntary strategies, local communities can both reduce greenhouse gas
emissions and prepare for the consequences of climate change that are already
underway. Two statewide entities supporting local government efforts are described
below.
League of California Cities
The League of California Cities is an association of California city officials who work
together to enhance their knowledge and skills, exchange information, and combine
resources so that they may influence policy decisions that affect cities.
The California League of Cities is considering the adoption of a policy and guiding
principles on climate change that incorporate the following topics:"
• Energy efficiency in buildings and new residential or commercial developments
• Use of alternative fuels or low emission vehicles in city fleets
• CEQA
• Updating general plans to reflect climate change impacts
• Water supply impacts from climate change
• Land use planning
* Recycled content procurement policies
The League has endorsed the United States Conference of Mayors Climate Protection
Agreement. This agreement (1) calls on the federal government to ratify and implement
the necessary policies to meet the Kyoto Protocol's U.S. GHG emissions reduction targets
of 7 percent below 1990 levels by 2012 and (2) commits signatories to the same targets
for their cities and to achieving the targets through the. following transportation and land
use policies (but not limiting signatories exclusively to these policies):
Inventory global warming emissions in city operations and in the community, set
reduction targets, and create an action plan.
• Adopt and enforce land use policies that reduce sprawl, preserve open space, and
create compact, pedestrian- friendly urban communities.
• Promote transportation options such as bicycle trails, commute trip reduction
programs, incentives for car pooling, and public transit.
California State Association of Counties
The California State Association of Counties (CSAC) represents all 58 counties in the
state. CSAC has adopted a policy recognizing the need to encourage more strategic
growth and target infrastructure investments to promote such action.54 It is in the
process of developing a policy on climate change and has convened a working group to
discuss the role counties should play and to consider and identify where CSAC could
develop climate change policy statements. CSAC believes that counties are more than
Si California League of Cities website, www.cacities.org.
54 California State Association of Counties, Comment Letter on Energy Commission Draft
Report: The Role of Land Use in Meeting Cal ifomia's Energy and Climate Change Goals, July 5,
2007.
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just another stakeholder group in the climate change debate; rather, they are a vital
partner and should be active participants in the discussions and dialogue in the
development of GHG emissions reductions strategies.
CSAC recommends that state policy recommendations with respect to growth consider
the following principles:
• Incentives for regional blueprint and countywide plans must be provided.
• New development in designated urban areas must evaluate all costs associated with,
development on both the city and .the county.
• Analytical methodologies, thresholds of significance and other standards must be
established before CEQA can be used as a tool to address climate change. .
• Baselines must be established and technical information and data provided for local
jurisdictions to evaluate current policies and develop additional policies and
actions.
Institute for Local Government
The Institute for Local Government serves as a source of independent research and
information for California's communities and their leaders. It is the nonprofit research
affiliate of the League of California Cities and the California State Association of
Counties. The Institute specializes in addressing issues of topical and practical concern
to local agencies in California. A key aspect of this involves developing practical "nuts
and bolts" materials that help local officials formulate policies that meet the needs of
their communities.
To assist local officials, the Institute for Local Government recently launched a new
"Climate Action Program .i55 The Institute is working closely with the League of
California Cities and the California State Association of Counties on climate action
activities with a wide range of local officials and staff. The program will:
• Provide information and access to strategies that local officials can use in their
communities to address climate change. This will include climate action resources,
best practices, and case studies. A "climate action network" will actively link local
officials to a variety of climate change programs and resources.
• Create incentives for local officials to set high goals for energy efficiency and climate
change programs. This includes developing a certification and awards program for
exemplary local efforts, along with criteria and a method to certify three tiers of local
'best practices" to combat global warming.
Non- California Initiatives
Many states and cities have efforts to reduce fuel use and GHG emission in place. A few
of these are described below.
Massachusetts Greenhouse Gas Emissions Policy
The Commonwealth of Massachusetts Executive Office of Energy and Environmental
Affairs Greenhouse Gases Emissions Policy requires that certain projects undergoing
review by the Massachusetts Environmental Policy Act (MEPA) Office quantify GHG
emissions generated by proposed projects and identify measures to avoid, minimize, or
'California Institute for Local Govemmentwebsite, www.ca - ilg.org /climatechange.
41
mitigate such emissions. A project will be subject to this policy if an environmental impact
report (EIR) is required for the project and if it falls into one or more of the following
four categories:
• The commonwealth or a state agency is the proponent.
• The commonwealth or a state agency is providing financial assistance.
• The project is privately funded but requires an air quality permit from the
Department of Environmental Protection.
• The project is privately funded but will generate 3,000 or more new vehicle trips per
day for office projects; 6,000 or more vehicle trips per day for mixed -use projects
that are 25 percent office space; or 10,000 vehicle trips per day for other projects.
An advisory group has been convened to develop a standardized quantification and
reporting protocol, and upon completion MEPA will require the quantification of green-
house gas emissions. The analysis will include both "direct' GHG emissions (for
example, stack and fugitive emissions from the proposed operation) and "indirect'
emissions (for example, emissions from vehicles driven by employees and generating
plants supplying electricity to the proposed operation).
In addition to the quantification of project - related GHG emissions, MEPA will also
require that proponents consider a project alternative in the EIR that incorporates
measures to avoid, minimize, or mitigate such emissions. Possible mitigation measures
could include:
• Energy efficiency improvements in buildings.
• Layout of the site and building orientation to make best use of natural light, natural
heating and cooling, and solar energy potential.
• Incorporation of low impact development techniques (including green roofs) to
reduce the amount of asphalt and provide greater shading.
• Transportation demand management, including locating the project near mass transit,
access to shuttle or bus services (preferably using alternative fuels), ridesharing
programs, bicycle and pedestrian accommodations, and provision of Zipcar spaces.
• On -site renewable energy and combined heat and power generation.
• Use of clean and alternative fuels.
• Establishment of systems for on -site reuse and recycling of construction and
demolition materials and recycling of occupant waste materials.
Oregon Land Conservation Program
Oregon's statewide land -use planning program, originated in 1973 under Senate Bill 100,
was passed to provide protection for farm and forest lands, conservation of natural
resources, orderly and efficient development, coordination among local governments,
and citizen involvement. The Department of Land Conservation and Development
(DLCD) administers the program. A seven - member volunteer citizen board known as
the Land Conservation and Development Commission (LCDC) guides the DLCD.
Oregon's LCDC, assisted by DLCD,.adopts state land -use goals and implements rules,
assures local plan compliance with the goals, coordinates state and local planning, and
manages the coastal zone program.
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Under the program, all cities and counties have adopted comprehensive plans that meet
mandatory state standards. The standards are 19 statewide planning goals that deal
with land use, development, housing, transportation, and conservation of natural
resources. Goal 13, energy conservation, addresses energy efficient land use planning
and buildings and Goal 14 addresses urbanization. Periodic review of plans and
technical assistance in the form of grants to local jurisdictions are key elements of the
program.
Oregon's statewide goals are achieved through local comprehensive planning. State law
requires each city and county to adopt a comprehensive plan and the zoning and land -
division ordinances needed to put the plan into effect. The local comprehensive plans
must be consistent with the statewide planning goals. Plans are reviewed for such
consistency by the LCDC. If approved, the plan then becomes the controlling document
for land use in the area covered by that plan.
New Jersey State Development and Redevelopment Plan and
Smart Growth Program.
The New Jersey State Planning Commission developed and approved the State
Development and Redevelopment Plan (State Plan) and the State Plan Policy Map. The
State Plan provides a vision for state growth intended to preserve and enhance the
quality of life for the state's residents. The State Plan is the result of hundreds of public
forums, where the plan's goals, strategies, policies, and application were discussed. This
bottom -up approach to planning was designed to encourage consistency between
municipal, county, regional, and state plans to create a meaningful, up -to -date, and
viable State Plan.
The New Jersey State Plan coordinates planning activities and establish statewide
planning objectives in the following areas: land use, housing, economic development,
transportation, natural resource conservationf a griculture and farmland retention,
recreation, urban and suburban redevelopment, historic preservation, public facilities
and services, and intergovernmental coordination.`
The State Plan provides a balance between growth and conservation by designating
planning areas that share common conditions with regard to development and
environmental features:
Areas for Growth: Metropolitan planning areas.
• Areas for Limited Growth: Fringe planning areas, rural planning areas, and environ-
mentally sensitive planning areas. In these planning areas, planning should promote a
balance of conservation and limited growth. Environmental constraints affect
development and preservation is encouraged in large contiguous tracts.
• Areas for Conservation: Fringe planning areas, rural planning areas and environ-
mentally sensitive planning areas.
Maryland Economic Growth, Resource Protection, and Planning
The Maryland Economic Growth, Resource Protection, and Planning Act of 1992 (the
Planning Act) was enacted to organize and direct comprehensive planning, regulating,
and funding by state, county, and municipal governments to advance a specific
economic growth and resource protection policy. The policy is organized around seven
s New Jersey State Smart Growth Programwebsite, http: / /www.state.nj.us /dca /osg/
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statutory vision statements that must be pursued in county and municipal comprehensive
plans, where priorities for land use, economic growth, and resource protection are estab-
lished. The visions must also be followed by the state in undertaking its various programs.
Both state and local funding decisions on public construction projects must adhere to the
visions. The Act also established an Economic Growth, Resource Protection, and Planning
Commission (the Commission) to oversee, study, and report on progress toward
implementing the visions.
The state of Maryland reports that the work of state, county, and municipal governments,
as well as that of the Commission from 1992 to 2002, has succeeded in the widespread
integration of the visions in local and state government plans and actions.' The work
accomplished under the Act helped to give shape and form to Maryland's smart growth
program. The 1997 Maryland General Assembly passed five pieces of legislation and
budget initiatives -Priority Funding Areas, Brownfields, Live Near Your Work, job
Creation Tax Credits and Rural Legacy —known collectively in Maryland as "Smart
Growth."
The Maryland Smart Growth Program has four goals:
• Support existing communities by targeting resources to support development in areas
where infrastructure exists.
Save the most valuable natural resources before they are forever lost
• Save taxpayers from the high cost of building infrastructure to serve development
that has spread far from our traditional population centers.
• Provide Marylanders with a high quality of life, whether they choose to live in a rural
community, suburb, small town, or city.
Smart Growth directs the state to target programs and funding to support established
communities and locally designated growth areas, and to protect rural areas. The.
Priority Funding Areas Act provides a geographic focus for the state's investment in
growth - related infrastructure.
Portland Metro Regional Transportation and Land Use Planning
In 2000, Portland Metro completed a planning process meant to look 50 years into the
regions future (from 1990 to 2040), dubbed "the 2040 Growth Concept." The Portland
area expected a large increase in population by 2040, which according to past trends
would have meant a large increase in the "urban growth boundary" which defines the
boundary between urban and rural areas in Portland. The impending growth clashed
with what Portland residents value: access to natural beauty and comfortable
communities. Regional projections showed that under existing land use policies, land
used for urban development would increase more than 50 percent in the region.
Metro is the regional government of the Portland Metropolitan area. It coordinates land
use policies in the 27- jurisdiction region and writing binding development policies. Metro
undertook a major public involvement campaign for the 2040 planning process. It mailed
livability questionnaires to every household in the region (over 500,000), conducted
dozens of workshops and forums, and provided a variety of public education tools,
including distributing videos and maps about the planning at local businesses. This
process was important because the planning decisions are being based on the values of
Portland area residents.
"Maryland Smart Growth Program Website, http:JJ www .mdp.state.md.us /smartintro.htrn
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The 2040 Growth Concept being planned for in Portland consists of only a modest
increase in the urban growth boundary, while at the same time making more efficient use
of existing urban land, protecting natural resources and green spaces, supporting
regional centers, and ensuring a balanced transportation system. The most important
focus has been protecting residents' access to nature through efficient use of urban
infrastructure.
Metro released a report on performance measures in 2004. Development projects and
policies have focused on urban and regional centers. Annual land converted to urban use
was 40 percent lower in 2002 than it was in 1999. Metro acquired 8,000 acres of parks
and open space through a 1995 bond measure, and 60 percent of the population is
located within one - quarter -mile of a park. One of the most striking statistics concerned
its transportation system: while the nation experienced a 6 percent increase in per capita
vehicle miles traveled, Portland residents have decreased their VMT by 11 percent per
capita between 1996 and 2002.
' http: / /www. metro- region.org /library_docs/ trans/ preliminaryresearchfindings.pdf.
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CHAPTER 6: Infrastructure Funding
Infrastructure funding policies and decisions can affect energy demand in many ways.
The provision of roads, bridges, and tunnels can affect the efficiency of travel, the type
of travel, and the demand for travel as well as cause many environmental impacts, such
as bisecting habitat. The construction of power lines can determine the viability of
renewable sources of energy generation, whether a new development can turn on the
lights, and which power plants might come online first. Sewer lines are a key prerequisite
for new development, and the State Water Project, as noted previously, is one of the
largest infrastructures in the world, using up to 3 percent of the state's electricity to
provide Californians with the water they need to drink, grow crops, conduct business,
and water their lawns.
Infrastructure funding comes. from the federal, state, and local levels. The funding policies
and project choices made at any of these levels can determine the. long-term energy and
climate impacts of a community's infrastructure for decades. For instance, funding
policies that support mixed -use, transit- oriented, and dense communities can reduce
energy use, commute time, and GHG emissions while increasing transit ridership. The
Bay Area MTC has determined that locating housing and hence population closer to
existing points of transit access will have a greater positive impact on transit ridership
than new investment in transit infrastructures' Dense, mixed -use development may
support small, locally serving renewable energy systems that require less transmission
and related efficiency losses. To give another example, building a transmission system
that can handle intermittent generation from wind resources is a necessary first step to
large -scale deployment of wind generation. The following sections discuss infrastructure
funding at the national, state, and local level.
National
The Center for Clean Air Policy Federal Highway Bill
Reauthorization Effort
The Center for Clean Air Policy (CCAP) is leading a partnership to try to integrate land
use, energy, and climate considerations into the next Federal Highway bill. CCAP is
attempting to: (1) build a partnership focused on adding travel demand strategies to the
national climate policy debate and (2) create a linkage between federal climate legislation
and the reauthorization of the Surface Transportation Bill (SAFETEA -LU) in 2008.
In February 2007, CCAP kicked -off a policy discussion about integrating climate change
mitigation strategies into the next U.S. federal transportation bill (hence Green —
Transportation Equity Act, or Green -TEA) and addressing travel demand in national
climate policy, by hosting a web -based seminar attended by more than 40 U.S. transpor-
tation and land use experts. CCAP is asking all interested parties to support the effort
by providing a summary of how the effort is valuable to their own specific interests. The
Energy Commission has been tracking CCAP's efforts and providing information when
available. In particular, CCAP is interested in the SACOG blueprint program as an
example of how climate change and energy can be successfully integrated into Federal
Highway funding decisions. If CCAP and the interested parties are successful in
integrating green planning requirements into the federal highway bill, California's MPOs
"Bay Area Joint Vision website,
(http://www.bayareavision.org/focus/houEingemphasis.html)
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will have increased responsibility and funding power to implement their blueprint plans,
and the state should have substantial help reducing VMT growth, energy demand, and
GHG emissions from transportation.
California
Strategic Growth Plan
In November 2006, California voters authorized the passage of infrastructure bonds
totaling about $40 billion dollars. The largest portion ($19 billion) is allocated for traffic
congestion relief and public transportation. But significant dollars are allocated to other
areas as well: school repairs and expansion ($10.4 billion); water quality improvements
and natural resource protection MA billion); levee improvements and flood control
($4.1 billion); and affordable housing ($2.85 billion). The state has a major opportunity
to direct these infrastructure investments toward land use choices that consider energy
and climate change.
The Planning and Conservation League (PCL), with other organizations, is leading a
"greening the bonds" effort. PCL has identified 10 principles to guide bond
implementation, one of which encourages smart growth and makes cities more livable:
Current state law (AB 857, 2002) requires that "any infrastructure
associated with development" must use land efficiently, avoid leapfrog
development, be located only in areas planned for growth with existing
essential services, and minimize ongoing costs to taxpayers. Any
proposed infrastructure bond must follow these requirements in AB 857,
and should help achieve, not undermine, our state's land use objectives.
The infrastructure bonds should create financial and regulatory incentives
for growth patterns that accommodate needed housing as well as reduce
vehicle miles traveled and protect valuable habitat and important
farmland. Growth policies that reduce vehicle miles traveled will promote
housing closer to jobs and commercial centers, provide more housing
choices and reduce commute burdens on families. These policies will also
reduce air pollution, greenhouse gas emissions and the consumption of oil.
To ensure that regional agencies are equipped to make sound decisions
consistent with smart growth principles and resource conservation, the
state should update its transportation models to provide accurate infor-
mation and should authorize bond funding for regional blueprints
including funds to assist regions to collect and utilize adequate biological
and geographical data on the region's natural resource infrastructure.
Incentives for local and regional blueprints should be made available to
all regions of California 60
The Urban Land Institute (ULI) is undertaking a public infrastructure initiative, encom-
passing a series of forums, to make the case for linking infrastructure and land use. ULI
is also meeting with state officials to ensure bond implementation supports smart
growth principles. The William and Flora Hewlett Foundation, with the Energy
Foundation and the Packard Foundation, recently hosted a Global Warming, Land Use
and Investment Policy meeting to allow members of the Governors administration, state
60The Planning and Conservation League website, http://action.nwf.org/campaign/
infrastructure -bond-principles /explanation.
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Senate and Assembly members, and climate and urban growth experts to discuss how
bond funding could be implemented.
The following is a summary of the infrastructure bonds, a brief discussion of fund status,
and the implications for effective land use planning and reduction in VMT growth.
Transportation Bonds
Proposition 113 (Highway Safety, Traffic Reduction, Air Quality and Port Security
Bond Act of 2006) provides $19.925 billion in general obligation bonds for projects
intended to relieve congestion, facilitate goods movement, improve air quality, and
enhance safety and security of transportation. It includes $4.5 billion for projects that
would improve corridor mobility (called the Corridor Mobility Improvement Account, or
CMIA). CMIA guidelines, prepared by Caltrans, provide general guidelines on funding
priorities for CMIA funds. One guideline factor calls for evaluation of "project benefits,"
but energy benefits and GHG emission reductions are not explicitly considered. These
maybe considered under "optional benefits." Project eligibility criteria include projects
that "improve access to jobs, housing, markets, and commerce."
Proposition 1B funding also includes $4 billion for transit, $3.2 billion to improve goods
movement and air quality, and $1.475 billion to improve transportation safety and
security. Considered collectively, Proposition 1B funding components could be mutually
supportive and could contribute to energy savings and GHG emission reductions.
Proposition 1B explicitly allows the Legislature to provide oversight over the expenditure
of $5.1 billion, including goods movement trade corridors, transit security, air quality,
state -local partnership grants, and port security. None of the implementing agencies are
responsible for energy matters or air quality, except the $1 billion identified for ongoing
bus replacements.
The Legislative Analyst's Office (LAO) recommended that the Legislature provide
eligibility guidelines where such guidelines are not clearly established by Proposition 1B.
The LAO recommended that Proposition 1B funds be limited to projects with long -term
benefits and that air quality impacts be considered for new capacity projects and
appropriating all funds through the annual budget bill.
The California Transportation Commission (Commission) has been charged, by a
January 2007 letter from Senate President Pro Tempore Don Perata, with developing a
plan for incorporating strategies to reduce mobile source GHG emissions in the RTP
Guidelines. These guidelines shape the RTP projects that will be funded through .
Proposition 1B programs, and this initiative represents a significant opportunity to
integrate climate and energy considerations into the implementation of Proposition 1B,
as well as serve as a model for development of criteria for the other infrastructure
bonds.
Proposition 1C (Housing and Emergency Shelter Trust Fund Act of 2006) provides
$2.85 billion in general obligation bonds to support a variettyy of housing and
development programs. The proposition has a smart growth focus for some of its
funding as it provides $850 million for infill development grants and brownfield cleanup
and $300 million to develop higher densities along transit stations. Both funds require
Legislative appropriation. While the LAO recommends that the Legislature needs to
provide guidance or definition of project selection criteria, no specific selection criteria
are identified for the remaining funds noted above. Some regional blueprint plans
identify infill and brownfield redevelopment opportunities linked with transit and
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reducing automobile trips and length. Both energy - efficient and location - efficient cost-
saving information for these sites could be generated to allow for preferred mortgage
status for new homeowners based on lower transportation and energy costs. 61
Proposition 1D (Kindergarten - University Public Education Facilities Bond Act of
2006) provides $10.4 billion to fund repair and upgrade of public schools, including
kindergarten through grade 12, community colleges, and state universities. This
proposition provides $100 million for environmentally friendly school facility projects,
including those that promote the efficient use of energy and water, incorporate recycled
materials, and /or maximize the use of natural lighting. The LAO recommends that a
community impact analysis be conducted to reduce off - campus impacts of campus
facility growth The scope of that impact assessment is not identified by LAO.
Planning for schools and universities offers many opportunities for better land use. For
example, the city of Roseville and Placer County require, as part of their general plans,
interagency coordination to co- locate schools with park and recreation facilities and the
joint use of school and public facilities. 62 These requirements can reduce the number
and length of trips and GHG emissions while strengthening community cohesion.
Repairs and renovations of neighborhood schools may be more cost - effective than large -
scale construction of new schools located on the periphery of urban development. The
siting of new schools should consider their accessibility via bike and pedestrian paths,
consistent with the federal government's "Safe Routes to School" initiative, which
encourages children to walk and ride to school.
Proposition 84 (Water Quality, Safety and Supply. Flood Control. Natural Resource
Protection. Park Improvements) provides $5.4 billion in general obligation funding for a
variety of water, flood control, natural resources, parks and conservation projects. Of
this total, $620 million is continuously appropriated and does not need Legislative
approval for projects. The remaining funds require Legislative approval through either
the annual budget act or other legislation. The money could be used to provide
infrastructure enhancements to offset the expected impacts of global warming. This
includes $800 million for flood control; $580 million for sustainable communities and
climate change reduction; $540 million for protection of beaches, bays, and coastal
waters; and $65 million for statewide water planning. Proposition 84 funding could also
contribute to lower energy demand and GHG emissions if, for example, green spaces are
designed to enhance the inflow of cooler rural air to into urban areas and lower air
conditioning use and parks are located to reduce automobile travel.
The LAO identified a need for legislative direction for expenditure of at least the
regional. planning, housing, and infill funding.
Implications for Land Use, Climate Change, and VMT
Project funding criteria must be developed to effectively distribute the funds identified
in Table 4.
"The Institute for Location Efficiency (ILE) is a national nonprofit organization founded by the
Center for Neighborhood Technology, the Natural Resources Defenses Council, and the Surface
Transportation Policy Project, www.locationefficiency.corn, The U.S. Housing and Urban Devel-
opment Department manages the Energy EfficientMortgages Program, htttp: / /www.hud.gov/
offices/ hsg/ sfh/ eem/ energy - r.cfm.
"The Cities, Counties Schools (CCS) Partnership, a joint effort of the League of California
Cities, California State Associationof Counties (CSAC) and California School Boards
Association (CSBA), Stretching Community Dollars Workbook.
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Table 4. Strategic Growth Funds
Prop 1B
$1 billion for state -local partnership program account
Prop 1C
$850 million for infill local infrastructure and parks
$200 million for urban rural and suburban regional parks
$300 million for transit oriented development
Prop 1D
$100 million for green schools
Prop lE
$290 million for protection, creation and enhancement of flood
protection corridors and bypasses
$300 million for stormwater flood management projects
Prop 84
$1 billion for water projects that integrate water management with land
use planning
$90 million for sustainable communities
$400 million for parks
:Cali ia Energy Commissionstaff, 2007
Careful thought and analysis is needed for maximum bond expenditure effectiveness.
There is a possibility that well- intentioned funding could have unexpected repercussions.
For example, funding intended, to relieve congestion can induce people to return to their
cars rather than to continue to use public transit by reducing the social cost (congestion -
induced delays are a form of social cost) of travel. This "rebound effect' could increase
personal vehicle use from 3 percent to as much as 14 percent or more, when the "cost of
travel" is cut in half,63 thus negating some of the benefits that could arise from the
expenditures identified in Table 3. Conversely, if bond expenditures are part of integrated
regional efforts to reduce travel demand and air pollution, improve jobs - housing balance
with wise infill and brownfield development, and locate parks and schools within
walking and transit distance of a large portion of the population, perhaps greater than
expected outcomes could be achieved. Evidence produced in the Sacramento blueprint
shows it is possible. Actual measurements of VMT reductions in Portland show that it
has been done.
Congestion Pricing and Demand Management
Congestion pricing refers to charging drivers a premium for using roads during peak
times. Some of the most prominent examples in California include the high- occupancy
toll (HOT) lanes along the I -15 corridor in San Diego and those along SR -91 in Orange
County. Drivers pay a fee for using the lanes, which changes in real time in response to
the level of traffic: the toll is raised to ensure a minimum speed. Drivers see the toll on
an electronic billboard before they enter. The tolls along I -15 range from $0.50 to $4.00
during normal traffic flows but can be as high as $8.00 during very busy times. Along
SR -91, the tolls range from $0.75 to $3.50. Drivers of high occupancy vehicles are able to
use the lanes for free. The state may consider the effects of all new road capacity
carrying some kind of congestion charge. At the June 2007 workshop, Ewing noted that
almost half of. the $20 million bond funds passed in November 2006 could be used for
highway capacity expansion; he recommended no highway funds for high- performance
highways without tolls.
b' Small , Kenneth A. and Kurt V an Dender, Fuel Efficiency and Motor Vehicle Travel: The
Declining Rebound Effect, UC Irvine Economics Working Paper #0506 -03, Corrected July 17, 2006
(to be published in Economic Journal, vol. 28, no. l (2007) pp. 25 -51.
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As noted at the June 2007 workshop, ,the Pier Pass program at the Port of Long Beach
reduced gate fees for truckers in the 6 to 10 PMeriod and has reduced truck trips on
the 710 freeway by 30 percent during peak use. x
Another form of congestion pricing is charging motorists a flat rate to enter a particular
area, such as a downtown. This form of congestion pricing is being practiced in London,
where the charge to drive into the central city began at £5 but was raised after only two
years of implementation and is currently £8. In the wake of the success in London,
several European cities (including Stockholm and Edinburgh) have implemented or are in
the process of implementing congestion pricing. It has yet to be introduced in the United
States, but Mayor Michael Bloomberg has proposed it for the lower portion of the island
of Manhattan.
'4 Bama, John, California Transportation Commission, presentation at the June 26, 2007,
workshop on land Use, Energy and Climate Change
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CHAPTER 7: Electric Utilities' Role in Land Use
Electric utilities in California are beginning to play a larger and more explicit role in the
planning and use of land. This role includes planning for utility infrastructure (long -range
and near -term) and future sources of energy. This section examines a number of cutting -
edge endeavors by utilities, both in California and the United States, that serve as
models for a greater interplay of energy and land use. Energy efficiency, solar roofs, and
green building endeavors are not specifically highlighted here, both because they are
receiving extensive coverage in other areas (and will be discussed in other IEPR
workshops and reports) and because they are not as directly tied to the specific use of
land.
Utility Infrastructure Planning and Development
Long -Term Planning for Utility Infrastructure
Perhaps the most significant involvement of utilities in the planning for new large -scale
infrastructure is the SB 1059 Transmission Corridors effort spearheaded by the Energy
Commission. The focus of this program is to integrate transmission corridor zone planning
at the state level with local planning.
SB 1059 requires the Energy Commission as the lead agency to work with cities, counties,
state and federal agencies, and California tribes in designating transmission line
corridors. It requires cities and counties to consider designated corridors when making
land use decisions that could affect corridor viability.
California utilities were active participants in the "early- listening" process designed to
better understand stakeholder concerns and to determine how the corridor designation
process could be implemented to meet the needs of utilities and other stakeholders.
Utility comments presented at the March 5, 2007, Joint Committee Workshop on SB
1059 Implementation included: the need to coordinate among local, state, and federal
agencies; importance of including existing land use planning (for example, habitat
conservation plans and local general plans); and the need to include other initiatives
such as regional Blueprint plans and military Joint land use plans. As an example,
SANDAG has been seeking funding to undertake a regional feasibility study with San
Diego Gas & Electric (SDGE) and Caltrans regarding the siting of multiple infrastructure
needs in agreed -upon corridors.
Line Extension Policies
The process and costs for extending power lines and other utility infrastructure to new
developments can help or hinder the smarter use of land. California Public Utility
Commission (CPUC) Tariff Rules 15 (Distribution Extensions) and 16 (Service
Extensions) govern the provision of natural gas and electricity to new residences. These
rules are self - regulating, and a set dollar amount is provided for the cost of service for
each new account. In the case of electric service, $1,300 is allotted to a developer to pay
for the wiring from the transmission line to the transformer and then to the residential
unit. Although density is not considered under the rules, a de facto incentive to create
higher - density units may exist. A developer would receive $1,300 for each single - family
home to provide electric service. If there is a great distance between single- family homes,
the $1,300 may not be sufficient to cover the costs. On the other hand, if there are 50
housing units in a high -rise building, the developer would receive $65,000 ($1,300 x 50
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units), and the actual costs would likely be considerably less than the total received. The
basic structure of Rules 15 and 16 was created more than 20 years ago, and there is no
discussion. at the CPUC regarding changing these rules."
The New Jersey Board of Public Utilities (NJBPU), in March 2006, issued regulations
requiring integration of "smart growth" principles into utility service policies. These
regulations change how utilities (gas, electric, telephone, water, and wastewater) can
invest in line extensions and customer services. Developers in designated smart growth
areas will now be refunded money (according to a specific methodology) for line
extensions and services needed to supply electric services. For developments in other
areas, builders and developers will be required to pay the full costs of pipes, conduits,
wire, poles, transformers, regulators, service lines, and meters.
Inclusion of Utility Infrastructure in CEQA Documents
New electric and gas transmission and distribution lines and substations will be needed
to accommodate load growth associated with new industrial, commercial, and residential
development, CEQA documents for these types of developments typically have not
addressed the associated electrical and gas components of proposed developments.
Pacific Gas and Electric (PG &E), Southern California Edison (SCE), and SDG &E are
promoting a revision to the CEQA Guidelines Environmental Checklist though the
auspices of the California Council of Environmental & Economic Balance (CCEEB). All
of the investor -owned utilities (IOUs) have identified a major issue with the currently
adopted CEQA Environmental Checklist in the State Guidelines. The Initial Study
Checklist does not currently require discussion of a project's electric and gas infrastruc-
ture requirements. However, most proposed development projects require construction
of new electric and gas utility infrastructure. CEQA requires evaluation of impacts
associated with the "whole action." Any subsequent CEQA process to cover the gas
And utility infrastructure can result in significant cost and schedule impacts. The IOUs,
through CCEEB, have proposed the following addition to the CEQA Guidelines
Checklist, Appendix G:
bs Werner Blumer, California Public Utilities Commission, personal communication, June 15,
2007.
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XVI. UTILITIES AND SERVICE SYSTEMS
Would the project:
h) Require or result in the construction of new electrical or gas
facilities, such as power lines, substations, pipelines, compressor
stations, or related access roads, or require relocation or expansion
of existing electrical or gas facilities, the construction of which
could cause significant environmental effects?
The utilities believe the benefits to be as follows:
• Fully discloses electric and gas infrastructure impacts.
Provides equal treatment of gas and electrical systems relative to the infrastructure.
• Minimizes "piecemeahng.i66
• Eliminates unnecessary secondary CEQA processes.
Local Land Use Planning and Development
Utilities are becoming more directly involved in local land use planning, from the general
plan stage to actual new developments. For the most part, local governments are not
responsible for the delivery of energy to their constituents, and so the planning for energy
delivery to new homeowners and businesses tends not to be considered to any great
degree in the development and implementation of general plans. Yet, the utilities are
greatly affected by these plans, particularly in terms of understanding where and how
much new growth is expected.
Southern California Edison
A large utility like SCE must cover multiple regional and local government planning
activities since its service area encompasses multiple jurisdictions. SCE has an ongoing
effort to more closely coordinate with local and regional government planning.' Local
governments typically do not need utility input to their general plans, but utilities do
need the general plans since utility forecast plans must be consistent with adopted land
use plans. SCE's four - pronged approach to local and regional coordination includes the
following elements:
• Participate in general plan development and review third -party environmental
impact studies in a more comprehensive and consistent manner.
• Improve load forecasting by incorporating community information.
• Develop educational materials, especially directed at local government planning
staff, that provide detailed information on issues directly related to energy delivery
(for example, undergrounding of transmission lines).
Create stronger relationships with local governments.
Utility communications with local governments could be enhanced through use of an
updated Energy Commission Energy Aware Planning Guide. SCE informed Energy
Commission staff that this material was very useful in the past as a source of neutral,
unbiased information. An update of the guide should include new examples of energy
' Piecemealing is the division of a single project into smaller projects to avoid the
responsibility for considering the impact of the project as a whole.
6'Mary Deming, Southern California Edison, personal communication, June 8, 2007.
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planning such as the transmission line element developed, with Energy Commission
funding, for the Colusa County general plan.
San Diego Gas and Electric
SDG &E shares common geographic boundaries with SANDAG. The utility is a member
of the SANDAG Energy Working Group and has provided funding to assist the
SANDAG energy program and working group. `'s The Energy Working Group provided a
forum for the utility to meet with affected stakeholders. Through participation in the
Energy Working Group, SDG &E will be involved in updating the San Diego Regional
Energy Strategy.
The Energy Working Group's top priority in 2006 was to provide direction and input to
SDG &E on its long -term resource plan. The Working Group advised the SANDAG
Board on recommendations for the utility's plan to be consistent with the Regional
Energy Strategy. The Board provided policy recommendations for SDG &E to consider
and implement in its long -term planning, including its upcoming Long -Term Procurement
Plan filing to the CPUC.
In addition to its involvement with SANDAG, SDG &E has reached out over the last few
years to several local agencies to ensure the integration of utility system needs in its
general plan updates. Examples include:
• SDG &E worked with the city of Chula Vista to identify new distribution substations
that would be needed based on the preferred growth scenario as well as identify
existing utility corridors in accordance with state general plan guidelines.
Transmission corridors that may require expansion based on local and system -wide
growth were also identified.
• SDG &E worked with the city of San Diego to provide general substation location
mapping and existing utility corridors in accordance with state general plan
guidelines. SDG &E also provided the city with draft general plan policies for
consideration which were modified for city use and included in the general plan
update.
• SDG &E is working with the county of San Diego on the General Plan 2020 Update
by providing input to its Power and Energy Background Report, which will form the
basis of its Energy Element. SDG &E also provided the county with the 2007
Transmission Planning Map requested by the Energy Commission in the 2007 IEPR
as a bridge between state and local planning efforts.
Pacific Gas and Electric
PG &E claims to envision sustainable communities that ultimately strive for zero net
carbon emissions, sustainable land -use and transportation planning, sustainable water
use, and elimination of the concept of was PG &E and the other IOUs have existing
programs that promote energy efficiency, solar electricity, and demand response at the
individual building scale. However, PG &E believes that to effectively address California's
climate change challenge and promote sustainabili�y, it is necessary to take a more
holistic approach to energy planning and delivery.
"Susan Freedman, San Diego Association of Governments, personal communication, June 11,
2007; SANDAG comments on Draft Staff Paper, July 6, 2007.
"Darren Bouten, Pacific Gas and Electric, personal communication, June 11 and 18, 2007.
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Such an approach would include collaborating with local governments, irrigation
districts and water supply companies on land -use and water infrastructure planning
policies that promote energy efficient infrastructure. It would include working with
waste management companies to provide potential community-scale energy solutions
from landfill methane, agricultural, and other biomass "waste." It would also include
collaborating with developers throughout the planning and development process to
implement:
• Master planning strategies that optimize site design and community energy
performance,
• Building design measures that significantly reduce energy demand, and
• Sustainable energy supply strategies at the neighborhood and community scale
PG&E is in the process of developing a Sustainable Communities Program that will
encompass two components:
• A building -level approach where existing programs (for example, energy efficiency,
and solar homes) are bundled and packaged more effectively to building owners and
developers to incorporate sustainability concepts and reduce carbon; and
A community/ regional approach where the utility will work with local governments
on updates to general plans and building codes and standards, on the development
of climate change action plans, and on new development projects.
• The first component is essentially a building -by- building approach, which more
closely tracks current CPUC requirements for program management and delivery.
The second component, currently under development, envisions a much broader
approach, incorporating direct water - energy and land use - energy links to enable
communities to significantly reduce their carbon footprint. Both building -scale
programs with shorter lead times and neighborhood and /or community-scale
programs that promote significant greenhouse reductions, but have longer lead times,
are necessary to achieve California's aggressive greenhouse gas reduction targets.
However, the CPUC energy efficiency requirements that allow investor -owned
utilities to recoup costs under the first component (building level) would not allow
funding of the planning and implementation activities that are envisioned in the
second component (community/ regional).
Municipal Utilities
Municipal utilities and those directly owned by local government have smaller service
areas and, presumably, are more able to participate fully in general plan processes. In its
General Manager's Report and Recommendation on Rates and Services (April 5, 2007), the
Sacramento Municipal Utility District (SMUD) states, "The District is committed to
work regionally to ensure that our planning supports smart growth principles, and that
(our) process will engage the regional planning authorities to facilitate wise energy use in
future planning processes" (p. 11).
SMUD has been an active participant in the ongoing Sacramento County general plan
update. SMUD's participation directly led to the addition of an objective in the county's
land use element, as described (in part) below
Objective: New development in existing communities in new growth areas and .
improvements to existing buildings and housing stock that are designed
and constructed to be energy efficient and incorporate renewable energy
technologies where cost - effective and feasible.
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Intent: Key goals of sustainable development and smart growth are to reduce the
impacts of development on the environment, conserve natural resources,
reduce air pollution, reduce greenhouse gas emissions, and protect human
health. The community is also concerned that residents and businesses
can afford to live and work in the community, with future energy costs a
major cost consideration. The region as a whole is trying to attract
businesses that focus on clean energy technology and products. The state
and the nation are working to achieve independence from foreign and
environmentally harmful energy sources.
The City of Palo Alto Utilities (CPAU) has developed a close working relationship with
city planning and building departments over the last several years. This allows the
utility to recognize and correct zoning and municipal codes that impede more efficient
energy delivery. CPAU is currently providing input on proposed zoning ordinance
changes that will exempt thermal energy storage systems from restrictions on total
square footage limitations for lots.70
New Development Opportunities
Utilities have a unique opportunity to participate in new developments from the ground -
up, especially those associated with very large tracts of land such as former military
bases. As an example, energy issues are taking front and center in a partnership effort
involving the redevelopment of the A Toro Marine Corps Air Station in Irvine,
California. The city of Irvine envisioned the Great Park development as a multi-use
development with sustainability and environmental stewardship as core values.
SCE and Southern California Gas Company have joined forces with the city of Irvine,
Lennar Corporation, and energy and land use experts (the "Green Team ") to design and
develop a new energy infrastructure for the proposed Irvine Great Park. The Irvine Great
Park Energy Subteam Update (November 2006) states that:
As with any substantial development, the Orange County Great Park and
surrounding communities will have significant impacts on regional energy
resources. California's already strained electrical grid will be further taxed;
limited natural gas resources will be stretched thinner, and demand for
dwindling transportation fuels will grow. These challenges present unique
opportunities to the Great Park, opportunities to improve the diversity,
resiliency, and efficiency of energy resource production and use within the
community. (p. 1).
The new infrastructure associated with the Park will "...be designed and built from the
ground up, fostering opportunities to enhance efficiency, increase flexibility and
diversity, and prepare for future energy sources. A new transportation system will be
developed, opening the door for advanced system designs, monitoring, and linkages
between Park, community, and mass transit. ""
The Green Team is working with stakeholders to develop consensus goals, consisting of
the following outcomes:
• Strive toward net zero energy usage through energy efficiency and fuel diversification.
7 °Karl Knapp, City of Palo Alto, personal communication, May 16, 2007.
"The Irvine Great Park Energy Subteam Update, November 2006.
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• Maximize self reliance and security for critical energy services.
• Construct responsive buildings that help the electric utility reduce costs of imports
and plant capacity through energy management.
• Provide diverse and secure energy sources and technologies that offer ample choice
for residents and businesses.
• Offer a forward - looking, adaptive approach to design that helps everyone learn how
to improve their performance and sustain a high quality of life in the face of
unexpected change through education.
PG &E has partnered with the city of San Francisco to create the "cleanest and greenest
city in the U.S. (PG &E, 2006)." The plan will include alternative energy sources, a
reduction in greenhouse gas emissions and a commitment to sustainability. One of the
six key elements involves the creation of model urban communities in Treasure Island
and Hunters Point from their existing brownfields condition:
...we.can bring these communities to the absolute cutting edge of green
energy and technology, not only in the provision of energy, but in their
entire planning, design and development. These communities can be
conceived and built as zero net energy urban environments (p. 14).72
72 PG &E, A Partnership for a Greener San Francisco, August 2006.
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CHAPTER 8: Land Use Planning Research and
Development
California's population will increase by 24 million people by 2050. The state is already
grappling to provide the infrastructure necessary to accommodate this growth while at
the same time protecting the state's environment and natural resources. California's plan
to reduce energy use, reduce the number of VMT, and meet its climate change targets
while at the same time accommodating this growth will be greatly challenged. This
chapter addresses available academic research in the area of land use and its integration
with energy and transportation.
For example, California's Million Solar Roofs Initiative is moving forward with outfitting
the state with home solar panels. To what extent have neighborhoods been designed
with south - facing roofs ideally suited for solar generation? Are there obstructions that
will reduce the effectiveness of the photovoltaic (PV) systems? How might urban forestry
programs impact PV systems? To give another example, the water - energy relationship
has reinforced the fact that water use is energy use. To what extent can neighborhood
design be optimized to save water and simultaneously recharge aquifers vital to
California's water supply? Such design strategies could have significant energy, COZ
reduction, and multiple other environmental benefits that typically would not be ,
considered. These propositions are but two of the many that connect land use decisions
and long -term energy usage and that are under consideration by the Energy
Commission's Public Interest Energy Research (PIER) Program. 3
By including energy demand, supply, and infrastructure as central factors in the land use
planning equation, state and. local governments will have the tools to make intelligent use
of energy resources and work to meet energy - related goals. The 2006 IEPR Update
provided policy direction for research that helps "identify, quantify, evaluate, and
verify sustainable energy planning practices and designs and help(s) explain the
associated complex energy interdependencies, efficiency, and environmental enhancement
opportunities of these practices and designs." It also states that this research should be
used to develop "analytic tools" that model these same relationships. More specifically,
the IEPR directed the Public Interest Energy Research (PIER) arm of the Energy
Commission to "provide tools and conduct research to assist local government's energy
and greenhouse gas reduction planning efforts" (p. 96).
Such tools are a critical part of the planning process. Planners have a host of constraints
placed on them in making land use decisions, including zoning, federal air quality
mandates, tax revenue projections, and demographic projections.
The Energy Commission funds research advancing science and technology not adequately
supported by the private or regulatory markets. Current and planned land use - related
research, particularly into sustainable communities, is,. and will be, largely focused on
developing initiatives intended to improve regulatory decision - making and inform energy
policy. In particular, this research is, and will be, addressing the following:
• Evaluating the causality between land development patterns and vehicle miles
traveled.
73 The PIER Program recently expanded to include transportation research, which it previously
excluded. Tod ate, transportation research has focused on reducing the carbon content of fuel and
increasing efficiency of vehicles.
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• Determining whether petroleum use in the transportation sector can be reduced
through changes in the design of development patterns, and whether there is a
synergy between reductions attributable to land use and those attributable fuel type
and carbon content.
• Identifying the energy and resource efficiency impacts associated with various
community design options, as well as identifying what reference guidelines and case
studies are needed by design and building professionals in planning more sustainable
communities.
• Finding useful feedback that can be given on the energy impacts (HVAC, solar water
heating, PV) of various street layouts and house orientations to the developer or
planner.
• Outlining ways to better quantify, evaluate, and verify complex energy relationships,
as well as environmental enhancement (including COZ reduction) and efficiency
opportunities of sustainable energy planning designs and practices.
• Identifying the tools and models or improvements to these tools and models that are
needed to set and achieve sustainability goals, as well as incorporate energy and the
environment into planning and design decisions.
Because of the long- lasting nature of community design, it is increasingly important to
optimize natural environmental design features, energy efficiency, and opportunities for
emerging energy technologies, and to use these tools in synchrony with each other.
Beyond these considerations, achieving sustainability will ultimately require coordination
across the entire energy sector. There is a need for implementation that will integrate
current environmental and building efficiency research with industry efficiency, demand
response, renewable energy, distributed generation, and transportation into a single,
comprehensive research plan.
In fiscal year 2007 -08, the Energy Commission's Research, Development and Demonstration
Committee has allocated more than $2 million for sustainable communities research.
This funding will support a broad -based research program including initiatives
identifying, quantifying, and verifying the complex energy relationships,
interdependencies, and environmental enhancement opportunities of alternative
practices and designs, and conducting basic research to assess impacts associated with
environmental features of sustainable communities (for example, optimize urban canopy
and PV). The benefits from this research will include a better understanding of the
holistic interaction between energy demand and environmental design principles as well
as identification of underlying infrastructure design impacts on energy and the
environment and identification of design improvements that would reduce energy use in
California.
Land Use and Transportation Research
In its new transportation program, PIER is conducting research with the goal of reducing
petroleum consumption and associated GHG emissions through increased vehicle
efficiency, increased use of alternative fuels, and through better land use decisions.'"
Research is needed to establish the scientific basis for, and make appropriate judgments
about, the causal relationships between development patterns and VMT. The GHG
reducing potential of land use (with respect to transportation) hinges on its ability to
' "These three avenues of fuels use reduction are the three fo mdational pillars of the PIER
transportationprogram and are discussed more fully in the AB 2076 report (P600- 03- OO5F).
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reduce distance and number of trips traveled or shift travel from carbon - intensive to less
carbon - intensive travel modes.
The effect of land use on travel behavior is currently one of spirited discussion among
academics; Ewing and Cervero provide an excellent research summary" hi general,
residents in dense neighborhoods or neighborhoods with grid patterns appear to drive
less than those living in traditional low- density suburbs, but some studies have shown
these reductions in VMT to be relatively minor.
The correlation between smart growth and lower per capita VMT is fairly well- established;
however, a causal link between land use and VMT has yet to be established. There are
many possible explanations for the correlation between land use and VMT. One of the
trickiest to study, but possibly the most influential, is residential self - selection.
Observed lower per capita VMT in smart growth areas may be due to the fact that such
areas appeal to people who do not like driving and move to them in order not to drive
as much as they would have to in other areas. The net result —of lower VMT —is the
same, but if residential self- selection is a very strong force, it may mean that smart
growth has little power to cause reductions in VMT, but rather enables people to reduce
their VMT. This distinction may be academic at the moment and may not affect
recommended improvements to transportation models, but as smart growth scales up, it
will be important to sort this out to understand the likely effects of widespread
deployment of smart growth development strategies. Identifying the influence of the
many factors responsible for the observed correlation between land use and VMT -
including self - selection, broader choice set, congestion, and increased convenience of
non -auto modes —would allow planners to build even more robust models and craft
more finely targeted policies.
Possible Areas of Future Transportation Research
Smart Land Use and Intelligent Transportation Systems
The Governor's Climate Action Team identified smart land use and intelligent transpor-
tation systems as having major potential to meet the goals of the Governor's climate
policy (see Chapter 2). These projected reductions are significant and represent a major
portion of the total GHG reduction goal. As stated earlier, a draft report was released
for public review on April 20, 2007. The update provides revised estimates of GHG
emissions reductions from these strategies without discussing how these estimates were
derived. Validation of the modeling tools being used to estimate GHG emissions
reductions from smart land use and intelligent transportation systems should be
pursued.
The California Partnership for Advanced Transit and Highways (PATH) and the UC
Davis Energy Efficiency Center are researching Intelligent Transportation Systems and
looking for ways to increase ridership on public transportation systems as a way to
reduce vehicle miles traveled. Through case studies and pilot projects, this research
explores ways to get people out of their cars and into regional transit systems through
innovative means such as carsharing, supported by real -time information delivery. Many
of the pilot projects have met with success, but it remains to be seen whether the
programs can be scaled up effectively.
"S Ewing, R, and R Cervero, 2001, "Travel and the built environment: A synthesis," Transportation
Research Record 1780: 87 -114.
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Transportation Modeling Tools
The Natural Resources Defense Council (NRDC) concluded in a recent study that
transportation modeling tools do not accurately characterize the effects of higher density
developments in transit -rich areas. Traditional four -step transportation models also do
not allow communities to accurately assess the cost effectiveness of mixed -use or
transit- oriented development. There are several simple post - processor fixes that are
commonly applied to correct the models and more accurately represent the observed
correlations between smart land use and VMT. Another approach to correct traditional
models is to integrate the transportation and land use models like has been done in the
2004 update of the I- PLACE3S model. Integrated land use and transportation models
generally do better in accounting for the effects of smart growth,. but because they are
computationally more demanding, they may be beyond the scope of smaller MPOs at
present. Conversely, the somewhat simplified I- PLACE3S model could assist smaller
MPOs in accessing smart growth analytical capacity, especially if technical assistance is.
provided at startup.
This finding highlights the potential need for more research into the validity and
improvement of transportation modeling tools. In particular, sorting out the causation
amid the well- established correlation between smart development and lowered per
capita VMT would make integrated transportation models more robust and policies
more finely targeted. The NRDC study may mean that regional models employed by
MPOs, while designed for their particular region, would be a more accurate planning tool
if they were modified to better account for 'location efficient" policy choices, that is,
development policies that allow for the accessibility of new housing and facilities, giving
preference to developments or housing choices76 that take advantage of existing
transportation infrastructure. Researching the information and data needed so that
transportation modeling tools can include capabilities to assess CO2 reduction potential
offers additional room for improvement in these tools. Given that the transportation
sector is the largest single sector of GHG emissions in California, it becomes increasingly
important that these tools use the best data and approaches available.
Some key research questions that must be addressed to give transportation models more
predictive power are:
• What is the association between trip types (home -work, work -home, home -shop,
shop -home, other) and fuel use /GHG emissions ?"
• How are these types of trips expected to change as the population ages?
• Should more emphasis be placed on reducing one specific type of trip, or are reductions
balanced among trip types best? Conversely, is an emphasis on improving mobility
by alternate modes /fuels or improving accessibility a more productive approach?
• How can modeling take into consideration the different urban densities and availability
of public transit that varies throughout California cities?
• Smart growth is designed to provide people with more transportation choices, but
how effective is it in prompting people to take advantage of those choices and to
drive less?
76 Such housing choices canbe supported by location -effi cient mortgages, which will increase
the amount of money a homeowner can borrow if the home is located near a transit line.
"Cervero, Robert and Michael Duncan. 2006. "Which Reduces vehicle Travel More: Jobs -
Housing Balance or Retail - Housing Mixing?" Journal of the American Planning Association,
Autumn,
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• How do people's attitudes and behaviors impact the effectiveness of policy
decisions to encourage smart growth?
Caltrans is in the process of upgrading transportation models to integrate land use within
them to better reflect the benefits of smart growth.
Smart Communities
There is also a need to explore the relationship between smart growth and "smart
communities." Smart communities are those that use information technology to change
how their physical space is used. Similar to smart growth, smart communities can reduce
VMT growth rates, although that would be accomplished through broadband systems of
communications connecting homes, offices, schools, and health care facilities, rather than
primarily through transportation infrastructure design. Research may be warranted on
the potential of smart communities to reduce VMT growth rates, its impact on overall
energy use, and the environmental benefits or concerns. Generally, research should
examine the potential benefits of smart communities such as:
• Widespread wireless or other high- speed, readily available Internet access and
physical locations for people to access the Internet, and how this availability may
affect travel.
• The reconfiguration of work as things that people do, rather than a place they go,
and the associated changes in travel patterns, development needs (such as less need
for office space), and information technology use.
• The management of energy infrastructure in an online, transparent way.
Information and education programs for state and local officials (including planning
officials) on the potential for energy savings through planning, design, development,
and infrastructure decisions.
• Incorporation of location efficiency models in transportation infrastructure planning
and investments.
• Transportation policies and strategies to help transportation planners manage the
demand for travel, including real time travel information, reducing the number and
length of vehicle trips and promoting trips that increase the viability of other means
of travel.
Scientific Research and Modeling Tools to Better Understand
Land Use, Energy, and Environmental Relationships
It is anticipated that at the highest level, PIER Sustainable Communities projects78 will
fit into the following broad research areas: scientific studies and developing models,
decision support tools, and design principles. These areas are designed to provide a
better understanding of land use, energy and environmental relationships and to
improve the decision- making ability of local government officials, developers, builders,
and others, with scientific studies generally informing model development.
This process is not necessarily linear, however, but at times a feedback cycle between
these activities, as illustrated in Figure 2.
"For PIER funding, a public interest research need must be demonstrated. The development of
tools must be geared toward a public interest benefit and the advancement of science and /or
technology.
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Figure 2. Priority Research Areas
Examples of Current PIER- Funded Land Use, Energy, and
Environmental Research
The Energy Commission, through the PIER Program, is funding work to integrate a
building and generation energy planning capacity into the existing�regional and local
transportation and land use planning software tool, I- PLACE3S. This effort will
empower local government planners, COGs and MPOs, and decision makers across a
region to view the outcomes of building energy use analyses alongside established key
planning data such as housing costs, VMT, infrastructure cost assessments, and air
emissions.
Within the next 25 years, the United States is projected to design and construct more
than 213 billion square feet of new building space, presenting an opportunity to design
and incorporate higher levels of energy and resource efficiency 80 The Energy Commission
is funding research in Chula Vista, California, to look at more efficient site design for
new planned communities. The project will demonstrate the use of four different
modeling tools (Building Energy Analyzer, Energy -10, City Green and CommunityViz)
combined together to optimize energy, economic, and environmental parameters; analyze
impacts of efficient community designs on utility infrastructure; and identify solutions to
institutional and market barriers. The project will include stakeholder reviews and
feasibility analyses that incorporate input from city officials, builders, developers, and
others.
A new analytic tool under development is the "Subdivision Energy Analyzer Tool." At
the subdivision scale, this analytical tool will allow developers to examine and optimize
n I- PLACE3S is an acronym for Internet accessed PLAnning for Community Energy,
Environmental and Economic Sustainabi I i ty.
" Nelson, Arthur, 'Toward a New Metropolis: The Opportunity to Rebuild America," Virginia
Polytechnic Institute and State University -A Discussion Paper Prepared for The Brookings
Institution Metropolitan Policy Program, December, 2004.
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different street layouts and housing orientations that enhance the ability to generate
solar electricity and reduce energy use.
Because California's economy and the global economy rely on fossil fuels for electricity
generation, greenhouse gases that affect climate have accumulated in the atmosphere. As
a result, changes in California's climate are predicted to impact water resources, the
health of citizens, and the diverse natural ecosystems that Californians prize. hi
addition to feeling the impacts of climate change, ecosystems affect climate, so that
ecosystem responses to climate change may trigger subsequent changes in regional
climate. This set of two -way interactions is known as "climate- ecosystem feedbacks ",
and is an area that has not been well studied. A better understanding of climate -
ecosystem feedbacks is important for improving predictions of regional climate change. It
will also help California's lawmakers and citizens decide how to offset greenhouse gas
emissions. For example, proposals to plant forests in areas that are currently rangelands
(known as afforestation) will help soak up greenhouse gases from the atmosphere but
will have other effects on climate that have not yet been quantified.
Regional climate models have been increasingly used for predicting climate change
because they can represent local details relevant to regional climate, such as mountain
ranges and variation in vegetation type, at higher spatial resolution than can global
climate models. The California Energy Commission has funded new regional climate
modeling research with the long -term goal of improving predictions of future climate in
California, taking into account not only the effects of greenhouse gases, but also the
effects of urbanization and agricultural land use. Another related area that PIER will
address in the future is two -way interactions between climate and vegetation that would
result if climate change produces changes in ecosystems. For instance, a preliminary
PIER scoping study suggests that aerosols are affecting precipitation levels and climate
in California. Californian ecosystems are expected to change their geographic distribution
with climate change, and possibly as a result of afforestation. PIER - funded research
projects are investigating these issues for future consideration in developing climate
projections for California.
Areas for Possible Future PIER- Funded Land Use, Energy, and
Environmental Research
In fiscal year 2007 -2008, PIER will initiate research to im rove understanding of the
relationships among land use, energy, and environment. 8 In particular, this research will
address the need to identify and validate community -level design principles for land -use
decision making by local and regional governments. An example includes research that
provides a better understanding of the relative tradeoffs between residential -scale solar
and the urban tree canopy. Urban shade trees can reduce a home's energy use by
reducing the energy required to cool (and heat) the home, but trees can also reduce the
efficiency and output of a home's solar panels by blocking sunlight. The tradeoffs
including overall energy, environmental, and economic benefits between shade trees and
PV production has yet to be quantified. These are complicated tradeoffs, affected by
regional climate, a house's orientation, size, type and placement of trees, and many
other factors. Because the state is investing in both residential solar energy systems 82, and
"It is worth noting that for PIER generally short -term refers to a 1- to 5 -year time frame; mid-
term, 3 to 10 years; and long -term, 10 to 20 years.
' The New Solar Homes Partnership (NSHP) is a component of the California Solar Initiative,
which was signed into law in 2006 under Senate Bill 1 (SB 1) by GovemorArrmld
Schwarzenegger. NSHP works with new home productionbuilders to build homes that are
between 15 percent to 35 percent more efficient than the current codes and have photovoltaics
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urban canopy programs, it would be beneficial to understand how these policies can be
optimized to provide maximum benefits while understanding potential tradeoffs.
Another broad subject area in community -level design principles addresses water and
energy. In Southern California, for example, the difference between energy needed to
pump groundwater can be as much as 2500 kilowatt- hours/ acre -foot less than the
energy needed to import water B3 Landscaping can be modified or designed to maximize
groundwater infiltration, both improving the amount contained and quality of
groundwater in the aquifers and reducing the need to pump and treat run -off, both
energy intensive processes. Larger groundwater reserves can allow water agencies to
pump groundwater rather than rely on electricity- intensive imported water. Research
efforts planned for this year will evaluate the ability of landscape design to effectively
recharge aquifers and the potential energy savings and environmental benefit from
increased local pumping versus remote pumping and long -range transport.
Density and Urban Building Energy Use
Research is needed to study the implications of densification on urban building energy
use to help determine if there is an optimal configuration to minimize energy use in urban
buildings. While research indicates that higher density, particularly if achieved with
units that share walls, results in lowers primary energy use than lower densities, s" the
relationship between higher density and lower energy use may not be linear. Some studies
indicate that if cities are too noisy and there are local air duality concerns, instead of using
natural ventilation, people will use their air conditioners. One study also suggests that
if cities become too dense, in addition to less use of natural ventilation, the need for
electric lighting goes up, and the use of natural lighting goes down. Further research is
needed to understand the implications of smart growth planning on building energy use.
86
that will generate up to 50 percent of the home's electricity needs. SB 1 establishes three goals
for the California Solar Initiative: create 3,000 megawatts of new solar - produced electricity by
2017 (of which 400 MW are from NSHP), establish a self - sufficient solar industry in which
solar energy systems area viable mainstream option in 10 years, and to place solar energy, systems
on 50 percent of new homes in 13 years.
W Cohen, Ronnie, Gary Wolff, and Barry Nelson, 2004, Energy Drown the Drain: The Hidden Casts
of California's Water Supply, Natural Resources Defense Council, Available at http:/ /nrdc.org/
water/ conservation/ edra in/ edrain.pdf.
s" Ron& Fang, 2006, Impact of Urban Sprawl on U.S. Residential Energy Use, University of
Maryland,http://hdl.handle.net/1903/3848.
' Cooper, j. T. R., and A. Smyth. 2002. "Energy trade ❑offs and market responses in transport and
residential land (fuse patterns: Promoting sustainable development policy." Urban Studies
38(9):1573 -1588.
N Koen Steemers (2003), "Energy and the city: density, buildings and transport," Energy and
Buildings 35(1): 3 -14. This paper discusses land use affects onboth transport and energy use,
particularly in the UK context. It points out that increasing density does not necessarily produce
energy savings; in fact, moderately high densities (more onthe order of Europeancities than
Asian ones) may be the best from an energy standpoint. The authors point out that the two are
linked —that in a city where the noise and pollution from cars is minimized, the buildings can
be openedup, replacing powered ventilation, cooling and lighting with passive ventilation,
cooling, and lighting.
67
The 2006 IEPR Update states that the Energy Commission should "develop tools and
methods to identify and set energy sustainability goals and to verify that these goals are
met" (p. 96). Some tools exist and are being used already and, as a starting point for
research, it may be useful to study some of these existing tools and methods. For example,
local governments are building LEED (Leadership in Energy and Environmental Design)
certified buildings to assist in meeting their sustainability goals. Additionally, LEED -
Neighborhood Design (LEED -ND) is being developed with the NRDC and the Congress
for New Urbanism. Development projects will be rated based upon their location
efficiency; environmental preservation; compact, complete, and connected
neighborhoods; and resource efficiency. The Energy Commission may be able to leverage
the LEED —ND program in a way that assists in establishing standards or priorities for
growth in California. Some potential research opportunities include:
• For cities with LEED - certified projects, conduct monitoring and validation studies to
demonstrate how well the projects are meeting their projected. goals, including CO2
reductions, and to evaluate the scoring criteria to see if certain credit areas warrant a
higher weighting because of embedded energy savings. 87
• Once the LEED —ND standards are final, research projects could include monitoring
and validating the impact of LEED -ND certified projects and analyzing and
quantifying the benefits for California cities and California as a whole and assess
whether there is a need for a more California - specific LEED -ND.
Land use planters and other city officials sometimes use models to calculate/ estimate the
impacts of their decisions. For example, decision - makers have models forecasting
transportation trends for the next 50 years, but they have few reliable models that
forecast energy use at the community level for the next decade, given various land use
practices: Thus, developing energy use models at the community level will assist in
informed land use decision making.
Tools are in use that could help the state understand optimal energy- related
environmental community planning and design approaches. Such tools, focused on
particular sub - systems within a community, include: CTTYgreen, Harmonize Emissions
Analysis Tool (HEAT), and Construction Technology Group's Sustainable Communities
Model. A survey of functionality for all existing tools and quality and consistency of
their input data sources would help determine if better data is needed to ensure that
such models produce as reliable and consistent outputs as possible.
Communities are looking for tools that can address climate change at the local and regional
level.88 The 2006 IEPR Update states that the Energy Commission (through PIER) should
"Provide tools and conduct research to assist local governments' energy and greenhouse
gas reduction planning efforts" (p. 96). Tools exist to support local governments in
reducing their GHG emissions. For example, HEAT is an Internet -based resource for
storing, tracking, modeling, and reporting emissions and reductions of GHGs and criteria
air pollutants.
Research is warranted to investigate the quality of data used in the models, validate the
modeling capabilities, and assess the strengths and weaknesses of tools. In the coming
'For example, water efficiency credits for LEED -NC may result in energy savings as well and
perhaps should be considered for a higher weighting to encourage such activities in achieving
LEED certification.
' Sixty-six Califomia cities have signed on to the U.S. Mayors' Climate Protection Agreement,
which commits signatories to reducing their carbon emissions to 7 percent below 1990 levels by
2012.
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years, PIER will conduct research in support of local governmental efforts on climate
protection. If these tools are being used to estimate achievements of state energy policy
goals, research that strengthens the science and technology behind and within these tools
maybe of consideration.
Critical research questions that will allow for better planning and effectiveness at reducing
GHG emissions at the local level may include: 89
• Exploratory study: Urban Forestry and carbon sinks - how to account for GHG reduc-
tions from sequestration by trees as well as other energy / environmental benefits.
• Methods ensuring consistency and scientific soundness. What scientific research is
needed to develop methods for estimating GHG reductions and emissions robust as
well as transparent? Using this information what are the recommendations for
developing a California Standard? (in coordination with Air Resources Board)
• What are the benefits and potential impact of making offsets local and what ways
can they be made verifiable? How far can a city go to achieve Kyoto-like goals
within its own jurisdiction and authority?
• Why are cities not investing more in short- and medium -term energy savings projects?
And what potential impact in reducing GHG emissions would such projects have?
• What are the recommended energy savings projects and their potential impacts?
• What is the best way to develop a robust database and information exchange among
(California) cities that have agreed to advance the goals of the Kyoto Protocol by
signing the U.S. Mayors' Climate Change Protection Agreement?
• What data is needed to accurately report emissions on a communitywide and
municipal scale?
• How should monitoring, tracking, and validation of progress occur?
• For the cities that are implementing GHG emission reduction programs, what are the
quantifiable differences they are making compared to those that are do not have
programs?
• What role can cities play in achieving the state emissions reduction target?
The knowledge produced from the research described above will provide the information
needed and enable the development and improvement of models, decision- support
tools, and design principles to promote more comprehensive energy -aware planning.
Such efforts represent a broadening of the scale of the research, moving from an
individual object (building) level to the aggregate level (for example, moving from the
energy efficiency of a house to the energy efficiency of a neighborhood), as well as
considering energy as part of smart growth, including transportation energy, as well as
other forms of energy demand and supply. Achieving this broadening of scope will begin
to place energy planning at the appropriate level for local and regional governments to
design their land use practices and policies around more energy- and resource - efficient
communities.
89The Institute for Local Reliance just published a report Lessons from the Pioneers: Tackling
Global Warming at the Local Level (Jan 2007). It surveyed the climate change activities in 10 cities
(2 in Cal ifomia) to find out how well these "Kyoto cities" were doing in meeting their goals
and what strategies and methodologies they were using. The overriding conclusion is that,
despite commitments and elaboration of significant programs, reducing GHG emissionsbelow
1990 levels "will be a major challenge." Several research recommendations were made, and
some are included in this list.
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Land use changes may be able to reduce driving for necessity by "bringing destinations
closer to origins and improving the viability of alternative modes" but studies show that
people choose to drive more than necessary.90 If people will choose to drive more even
when land use changes offer less of a need to drive, land use change may have limited
power to produce savings from the transportation sector, savings that are critical in
California meeting its climate reduction goals. Investigating ways to ensure that the land
use changes have a better chance of achieving the desired effect is an important area for
research.
This report has identified a number of ways in which land use features can affect energy
use. While the effects of certain specific features have been explored with some detail,
there is much research to be done on what a complete, appealing, energy - efficient
community would look like, what the energy implications of such communities would be,
and how those communities can take root and flourish across the state. As the Energy
Commission funds research to address.these questions, it will be considering not only
efforts that will help local governments and regional planners in the next 5 -10 years, but
will also be creating a vision of how Californians will live, work, and travel in 50 years,
at a time when energy resources are more tightly constrained than they are now, when
vehicle technology has undergone another generation or two of development, and
information technology is even more powerful and pervasive.
9D Handy, Susan, 2003, "Driving Less," Access 23:20 -25.
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CHAPTER 9: Staff Findings, Conclusions, and
Recommendations
The following are key findings, conclusions and recommendations that the State of
California and Energy Commission should consider in their attempts to reduce energy
use and GHG emissions related to land use.
Findings
• With about 40 percent of California's greenhouse gas emissions attributed to the
transportation sector, significant efforts to reduce vehicle miles traveled are needed
to meet the state's GHG emission reduction goals. The state must find a way to not
only reduce the current 3 percent annual growth rate in vehicle miles traveled, but
begin to implement steps that will eventually reverse it.
• The research reviewed shows that increasing a community or development's density
and accessibility to job centers are the two most strongly correlated factors for reducing
vehicle miles traveled through design. More research is needed as to how these
factors cause the reductions.
• Even when using commendable collaborative efforts to reduce vehicle miles of travel
by implementing smart growth principles, efforts fall far short of the reductions needed
in vehicle miles of travel needed to meet greenhouse gas emissions goals.
• Existing tax polices, largely developed in response to Proposition 13 (1978), encourage
and promote commercial sprawl. That form of land use development provides local
governments with much needed revenue for public services and infrastructure but at
the expense of smart growth strategies. The state should consider revising tax
policies to encourage regionally coordinated, energy -aware planning.
• Confronting issues such as housing, transportation mobility, economic development,
and local climate change planning requires a regional approach, one that will protect
the fiscal interests of urban, suburban, and rural communities while simultaneously
lowering energy use.
• While the state has limited land use authority, it does have some key leverage points
(California Environmental Quality Act, housing elements, and others) that can be used
to assist local governments in reducing energy use and greenhouse gas emissions that
result from land use planning choices. Thus, while land use authority is nearly
completely vested with local government, the state can use the disbursement of
transportation and housing funds to motivate collaborative planning at a regional
level.
• The state - sponsored Blueprint Planning Program has engaged nearly all of the state's
metropolitan planning organizations in long -range land use planning efforts. Several
of these organizations are now adopting plans to better coordinate land use and
transportation development. The plans strive to accommodate housing needs, reduce
vehicle miles traveled, and identify priority planning areas. The plans are in early
stages of implementation and may require technical, financial, and regulatory
assistance to achieve their goals. With some guidance, these same plans could link
energy and greenhouse gas analyses into the long -term growth planning process.
• Other states and regional governments have adopted preferred growth scenarios that
better coordinate land use and transportation development while accommodating
housing needs, reducing vehicle miles traveled, and identifying priority planning
V&A
•
areas. Some of the states and regions have channeled financial and technical .
assistance to the identified priority planning areas in efforts to support the plan
goals.
Infrastructure funding policies influence the design and use of infrastructure projects.
The Governor's Strategic Growth Plan contained numerous programs to encourage
energy - efficient, climate - friendly land use, but project criteria (where they exist) for
many of the programs contain no energy or climate considerations. The next federal
transportation bill could significantly bolster the blueprint planning effort if it
mandates energy and climate considerations.
Utilities have historically played only a limited role in local government planning
efforts. Coordinated planning between a utility and local government can produce
many mutual benefits in terms of demand management, infrastructure deployment,
distributed electricity generation, and installation of renewable energy generation.
California investor -owned utilities have begun to engage with local and regional
governments in mutual planning efforts, but these partnerships are prevented from
reaching their full potential since the utilities cannot recoup the costs of their efforts.
Land use impacts on energy demand, distributed electricity generation, transmission,
and greenhouse gas emissions are in the early stages of exploration. Further research
and development is necessary to explain and quantify the impacts land use has on
energy systems, including: the causality (rather than the established correlation) of
land development patterns and per capita vehicle miles traveled, the potential for
low energy design principles, and the use of community=scale distributed and
renewable generation technologies. There is a need for research to develop modeling
and decision - support tools to allow the integration of energy considerations into
future research and planning efforts. The Energy Commission is engaging in a new
area of research that will look at the integrated relationships among land use, human
behavior, urban design, environmental impacts, and energy under its new
"sustainable communities' research program.
Conclusions
This report describes how different land use patterns could reduce the use of energy in
California and therefore, reduce the generation of GHG emissions. The state has identified
significant GHG reduction goals and has identified measures towards achieving those
goals. The rules implemented by ARB to comply with AB 1493 and the recent effort to
develop a low- carbon transportation fuel are directed toward reducing the carbon
intensity of fuels used in the transportation sector. Although significant efforts, they are
not likely to be sufficient on their own to meet state GHG emissions reduction goals.
Reducing the miles traveled per vehicle will also be necessary.
The number and length of vehicle trips are closely linked to where an individual lives
and the proximity to transit, jobs, and shopping. VMT will differ depending on the type
of land use. Smart growth development plans that increase average density by 30 percent,
emphasize infill, and mix land uses to a high degree could optimally reduce regional
VMT by about 15 percent at the end of 30 years. Regional Blueprint efforts in California,
such as the plan developed by SACOG, show that preferred growth scenarios could
reduce VMT per household by 15 percent over 30 years. However, when population
growth is factored in, VMT would actually grow, although at a lower rate than business-
as- usual growth scenarios. This suggests that current Blueprint planning, together with
other measures targeted at reducing the amount of use and carbon intensity of fuels still
cannot meet state climate change goals.
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Challenges exist with not only achieving current Blueprint planning VMT goals but also
with expanding them. The solutions lie in multiple actions that could provide incremental
benefits. These solutions include: improved transportation models to more accurately
forecast the true benefits of smart growth and Blueprint planning; density targets for
new growth; changes in zoning to allow for greater residential density; transportation
policies that identify goals for VMT reduction and urban design; state funding and
transportation investments targeted toward smart growth areas; pricing and congestion
management measures, including demand reduction measures to reduce need for new
roadway infrastructure; modification of CPUC rules to facilitate electric utility
involvement in local planning; and modifications to CEQA.
Recommendations
1. The state should adopt a statewide growth management plan that is built from
required local regional plans and align state planning, financing, infrastructure, and
regulatory land use policies and programs to the plan.
2. The state should require regional transportation planning and air quality agencies to
adopt 25 -year and 50 -year regional growth plans that provide housing, transportation,
and community services for expected population increases while reducing greenhouse
gas emissions to state- determined climate change targets.
The state's policies and programs that influence land use growth patterns should
encourage climate friendly and energy efficient development. To do this, there must be a
concentrated and collaborative process to identify where, and in what way, long -term
growth should, and should not, occur in the state. Confronting issues such as housing,
transportation mobility, economic development, and local climate change planning
requires a regional approach, one that will protect the fiscal interests of urban, suburban,
and rural communities while simultaneously lowering energy use and greenhouse gas
emissions. Therefore, any state plan should be composed of regional plans, developed
by local governments, in a process facilitated by regional agencies. Once regional plans
are adopted, the state should build a statewide growth management plan that is wholly
developed from the regional plans. Upon adoption of such a plan, state policies and
programs should be modified to align with and support the plan. To allow for programs
and development projects to manure, while also keeping the state and regional plans up-
to -date, the plans should be updated every 10 years.
• The Air Resources Board should adopt regional greenhouse, gas emission reduction
levels to guide regional growth management plans in its AB 32 scoping plan. The
Board should include in the scoping plan clear guidance on greenhouse gas emissions
accounting for urban land use activities and a local government protocol for
assessing and tracking greenhouse gas emissions in jurisdictions.
• The Climate Action Team's Land Use Subgroup should convene a proceeding to
develop recommendations for measuring and reducing vehicle miles traveled.
• The Legislature should pass legislation that requires local governments to develop
regional growth management plans that will accommodate 25 years and 50 years of
housing, transportation, and community service growth needs while meeting Air
Resources Board -set regional greenhouse gas emission targets.
The legislation should:
• Require regional growth management plans to be adopted through a joint
process between a region's municipal planning organizations and/ or council
of governments (MPO/ COGs) and the local air quality management district
(AQMDs).
74
• Require local governments to adopt the portion of the regional.plan and
greenhouse gas emission reduction target that affect their jurisdiction into
their general plans. The plans should clearly identify areas where growth and
development should and should not occur.
• Require MPO/ COGs and AQMDs to incorporate the plan and targets into
their planning, financing, and regulatory programs.
• Require the Governor's Office of Planning and Research to collect the regional
growth management plans and combine them to create a statewide growth
management plan.
• Require state agencies to modify all programs and policies that affect land
use, including but not limited to, planning, financing, capital outlay, and
compliance, to incorporate and support the statewide growth management
plan. Colleges, universities, and state buildings should also be required to be
consistent with the growth management plan.
• Require that the regional and statewide plans, and the local governments,
MPO/ COGs and AQMDs adoption of them, shall be updated on a 10 -year
schedule.
3. State infrastructure financing should encourage development that is concurrent with
the state's greenhouse gas emission and energy consumption goals.
Infrastructure funding policies influence the design and use of local government infra-
structure and development projects. The state should build upon the Governor's
Strategic Growth Plan's numerous programs to encourage energy efficient, climate-
friendly land use by requiring that all state financing for infrastructure incorporate
energy and climate considerations.
• The Legislature should pass legislation for all remaining Strategic Growth Plan bond
programs to incorporate climate change and energy consumption reduction measures.
• If the state adopts growth management legislation as described above, all state infra-
structure planning, financing, and compliance programs should only allow resources,
financial, technical, or otherwise, to be spent for development of projects in
identified growth areas.
• The Legislature should pass legislation that requires that all state infrastructure
planning, fmancing,'and compliance programs should only allow resources, financial,
technical, or otherwise, to be spent for development of projects in complete
consistency with regional blueprints.
• The Legislature should pass legislation that requires that all state infrastructure
planning, financing, and compliance programs not allow resources, financial,
technical, or otherwise, to be spent for development of projects in areas not
consistent with existing regional blueprints.
4. The state should expand efforts to provide technical and financial assistance to
regional agencies and local governments to facilitate climate friendly and energy -
efficient planning and development.
Land use impacts on energy demand, energy generation, transmission, and greenhouse
gas emissions are in the early stages of exploration. Further research and development
are necessary to explain and quantify the impacts land use has on energy systems. There
is a need for research to develop and update existing modeling and decision- support
tools to allow the integration of energy considerations into future research and planning
75
efforts. Many local governments and regional agencies state that access to information
and a lack of funding prevent them from implementing climate friendly and energy
efficient development plans and programs.
• The state should continue to fund the Blueprint Planning Grant program and Blueprint
Learning Network to assist regional agencies and local governments in developing
regional growth management plans. The grant program should include energy
consumption and greenhouse gas emission reduction as primary outcomes of the
blueprints developed within the program.
• . Upon passage of the above described growth management legislation, the grant
program and network should be modified to support development of the regional
growth management plans as specified in the legislation.
• The Legislature should pass legislation that implements the Proposition 84 Sustain-
able Communities Program. The program should focus on assisting regional and local
governments in developing, implementing and incorporating into existing policies the
above mentioned growth management plans, blueprints and, climate action plans.
• The Energy Commission should convene a group of stakeholders, both within and
outside state government, to update its Energy Aware Planning Guide to guide local
governments attempting to adopt local growth management and climate action
plans.
• Using the Energy Commission's new Sustainable Communities research program and
the California Department of Transportation's existing research efforts as the base,
the state should convene a land use research group to identify research needs, carry
out research, and develop and disseminate tools and resources to land use
stakeholders.
5. State government should be a model for climate friendly and energy - efficient
development patterns.
The state, with the passage of AB 32, possessing the knowledge of what it is going to be,
necessary to meet the state's climate change and energy goals and attempting to
influence land use practices outside of its authority, has an obligation to model appro-
priate behavior in its own land use practices. While AB 857 provided the framework for
guiding state agency land use practices, there is no recourse for agencies that do not
comply. Currently, the Governor's Office of Planning and Research has authority only to
collect annual reports of agencies self- reported compliance with the law.
• The Legislature should pass legislation that builds upon AB 857's intentions by
adding greenhouse gas emissions reduction and energy consumption as priority
planning goals of the state. The legislation should require that state agencies engaging
in or financing the development of infrastructure or capital outlay projects report on
the project's compliance with state planning policies during each stage of its
administrative and legislative budget approvals. The 1 slation should require. that
projects that do not meet the state planning priorities should not be funded except in
situations where compliance would be proven infeasible by the sponsoring agency.
• The Climate Action Team Land Use Subgroup should develop greenhouse gas
emissions reduction and energy efficiency guidelines for state agency programs that
affect land use. State agencies should adopt the guidelines to the greatest extent
feasible.
6. The state should determine the extent to which state and local tax policies affect
and guide land use practices and correct polices that encourage growth inconsistent
with the state's growth management plan.
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Existing tax polices, largely developed in response to Proposition 13, promote
residential sprawl and increase vehicle miles traveled, and greenhouse gas emissions.
The state should thoroughly review the impact of tax policy on land use patterns in the
state.
• The Governor's Office of Planning and Research, working with local governments, the
building community, the university system, and other stakeholders should study the
impacts of state and local tax policy on land use practices in the state. The report
should contain recommendations for changing identified tax policy that leads to
detrimental land use practices.
7. California's utilities should play an active role in regional and local government
planning and development efforts at both the plan and project level to encourage
climat- friendly and energy - efficient development in their service areas.
The state's investor -owned utilities (IOUs) and municipal utilities need to play a signif-
icant role in planning and development programs and projects. IOUs have stated that
their ability to do so is hamstrung by current energy efficiency program time constraints.
• The California Public Utilities Commission should allow utility- incentive and
technical- assistance programs with longer lead times to enable greater collaboration
with developers and local governments.
8. The state should work with its Congressional delegation to ensure that future federal
highway and other transportation and land use related legislation and programs
include energy and climate change considerations. .
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CHAPTER 10: References
Bay Area Joint Commission, Smart Growth Strategy Regional Livability Footprint Project:
Shaping the Future of the Nine - County Bay Area. Final Report, Bay Area, CA, 2002.
Burchell, Robert W., George Lowenstein, William R. Dolphin, Catherine C. Galley,
Anthony Downs, Samuel Seskin, Katherine Gray Still, and Terry Moore, 2002,
Costs of Sprawl -2000. Transit Cooperative Research Program, Washington, DC,
TCRP Report 74.
Cervero, Robert, 2003, Growing Smart by Linking Transportation and Land Use: Perspectives
from California, Built Environment Vol. 29 No. 1, pp. 66 -78.
Cervero, Robert and Michael Duncan, Which Reduces Vehicle Travel More: Jobs- Housing
Balance or Retail - Housing Mixing? Journal of the American Planning Association,
Autumn, 2006
Cooper, J. T. R., and A. Smyth. 2002. "Energy trade0offs and market responses in
transport and residential land Ouse patterns: Promoting sustainable development
policy." Urban Studies 38(9): 1573 -1588.
Ewing R., R. Pendall, and D. Chen, "Measuring Sprawl and Its Impact," Smart Growth
America/ U.S: Environmental Protection Agency, Washington D.C., 2002.
Ewing R. and R. Cervero, "Travel and the Built Environment," Transportation Research
Record, Vol. 1780, 2001, pp. 87 -114.
Handy, Susan, 2003, "Driving Less" Access 23: 20 -25;
Handy, Susan, Andrew DeGarmo, and Kelly Clifton, 2002, Understanding the Growth in
Non -Work VMT, Southwest Region University Transportation Center, Center for
Transportation Research, Texas A &M University System, Texas, Research
Report SWUTC / 02/167802-1.
International City/ County Management Association (ICMA) with Geoff Anderson,
1998, Why Smart Growth: A Primer, Smart Growth Network and ICMA.
Koen Steemers, 2003, "Energy and the city: density, buildings and transport," Energy
and Buildings 35(1): 3 -14.
McG� U, D, Newman, and J. Wrobel, 2004, "Model for Sustainable Urban Design: With
Expanded Sections on Distributed Energy Resources," Prepared for the Oak
Ridge National Laboratory by the Sustainable Energy Planning Office of the Gas
Technology Institute; released February 28, 2004, GTI Project # 303803 -23.
Availableonhneathttp://www.necsc.us/docs/ORNL_Design_Final.pdf
Nelson, Dick and John Niles, January 9 -13, 2000, "Observations on the Causes of
Nonwork Travel Growth," Transportation Research Board 79th Annual Meeting,
Washington, D.C., Paper No. 00 -1242.
Portland Metro, A Profile of the Regional Pedestrian System in the Portland Metropolitan
Region, Portland, OR, 2007.
Rong, Fang, 2006, Impact of Urban Sprawl on U.S. Residential Energy Use, University of
Maryland, http: / /hdl.handle.net /1903/3848.
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Sacramento Area Council of Governments, Regional Report, February /March 2007,
Sacramento, CA, 2007.
Small, Kenneth A. and Kurt Van Dender, Fuel Efficiency and Motor Vehicle Travel: The
Declining Rebound Effect, UC Irvine Economics Worldng Paper #05- 06 -03,
Corrected July 17, 2006 (to be published in Economic Journal, vol. 28, no. 1
(2007).
State of California, California Energy Commission, Integrated Energy Policy Report,
Sacramento, CA, 2006.
State of California, California Energy Commission, Sacramento, Inventory of California
Greenhouse Gas Emission and Sinks: 1990 -2004, CA, December 2006, CEC -600-
2006 -013 (p. 8).
State of California, Department of Transportation, California Regional Blueprint
Program, 2005 Grant Application Package, Sacramento, CA, 2005.
State of California Environmental Protection Agency, Climate Action Team Report to
Governor Schwarzenegger and the California Legislature, Sacramento, CA, 2006.
State of California, Department of Finance, Race /Ethnic Population with Age and Sex
Detail, 1970 -2004. Sacramento, CA, December 1998
United States Census, Press Release, June 3, 2006. http:/ /www.census.gov/Press-
Release/
www / releases / archives / facts _for_features — special editions / 006105.htm1.
United States Environmental Protection Agency, Inventory of U.S. Greenhouse Gas
Emissions and Sinks: 1990-2004, Washington D.C., April 15, 2004. EPA 430 -R-
06 -002, (pp. ES -4 and ES -7). .
United States Federal Highway Authority, Highway Statistics 1975 -2004, Washington
D.C., 2005.
United States Department of Transportation and Bureau of Transportation Statistics,
2003, NTHS 2001 Highlights Report, BTS03 -05, Washington, DC.
• •
Appendix: 2006 Energy Report Update: Policy
Recommendations Update
Require Local Governments to Adopt Greenhouse Gas
Emission Reduction Plans
The state's Assembly Bill 32 plan should require local governments to develop green-
house gas reduction plans and finance such efforts through the Assembly Bill 32 admin-
istrative fee at a level commensurate with the greenhouse gas savings expected from
improved land use planning.
Update: The CARB is currently developing the AB 32 implementation plan. It will
. be released by January 1, 2009.
Promote and Facilitate Efficient Land Use Practices That
Save Energy and Reduce Greenhouse Gas Emissions
The Energy Commission should invite stakeholders to participate in an ongoing land
use /energy working group that would convene on a regular basis to guide the state's
land use and energy research and program development.
Update: The Energy Commission is chairing the Climate Action Team Sub -Group on
Land Use and Local Government. The sub -group is tasked with
coordinating climate change mitigation and adaptation efforts in cross-
cutting areas that are crucial to meeting the state's greenhouse gas (GHG)
emissions reduction goals related to local government and land use
activities. The sub -group is made up of state agencies and will work with
local governments and other stakeholders to develop the tools, and
programs necessary to achieve the state's climate and energy goals.
Working with its partners, the Energy Commission should establish a central repository
for efficient land use information resources. The Energy Commission should produce
case studies and best practices guides that describe the successes of local
government land use efforts that reduce energy needs and greenhouse gas emissions.
Update: The Energy Commission has entered into partnerships with national,
regional, and local government entities to produce case studies and tools
that will help local governments and their partners to develop plans to
reduce energy usage and GHG emissions. These partnerships will produce
the following, but not limited to, products:
• Model Regional Energy Strategy
• Model General Plan Energy Element
• Model Local Climate Action Plan
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• Alternative Fuel Infrastructure Toolkit
• An annual conference on smart growth and climate change
• Local Government GHG analysis tool
The legislature should pass legislation that would require local governments to include
an energy element in their General Plans.
Update: At the time of this document's release, there is no legislation in the 2007-
2008 legislative session that would require a local government in California
to adopt a mandatory energy element in its general plan.
The CPUC should require investor owned utilities to partner with local governments
to incentivize smart growth in their service territories. The CPUC should allow IOUs
to recover the cost of the partnerships.
Update: At the time of this document's release, there is no activity to report on this
recommendation.
Under the authority granted to them by AB 2021 (Levine, 2006), the Energy
Commission should assist municipal utilities in partnering with local governments to
encourage smart growth in their service territories
Update: At the time of this document's release, there is no activity to report on this
recommendation.
Provide New Tools and Conduct Research to Assist Local
Government's Energy and Greenhouse Gas Reduction
Planning Efforts
The Energy Commission should complete the update of the I- PLACE3S energy module
and then continue to provide research and analytical tool development that will allow
the state and its partners the ability to:
• Better understand the relationships, processes, and outcomes that underlie smart
growth and energy.
• Identify, quantify, evaluate, and verify sustainable energy planning practices and
designs.
• Understand the associated complex energy relationships, interdependencies,
efficiency, and environmental enhancement opporturd ties of these practices and
designs.
• Develop tools and methods to identify and set energy sustainability goals, as
well as to verify that these goals are met.
• Take a comprehensive approach, using life cycle studies or system analyses, to
identify the costs, benefits, and trade offs of achieving these goals and to allow
for more informed decision and policy making.
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Update: The I- PLACE3S energy module is currently still in the development phase.
The PIER program has started a new research approach that draws from
current program areas for an integrated analysis of Sustainable
Communities. The research from this effort will provide a better
understanding of land use, energy, and environmental relationships and
attempt to improve the decision- making ability of local government officials,
developers, builders, and others.
The PIER program is engaged in the development of a number of tools and
research that will enable local governments to better account for energy
and climate impacts of growth scenarios, as identified earlier in this paper.
For the 2007 IEPR, the State Should Analyze the Role of
the State's Infrastructure Planning and Financing Activities
in Promoting Smart Growth
The state should assess compliance with Assembly Bill 857 and provide an
assessment of successes and barriers to action.
Update: At the time of this document's release, there was no activity to develop
and release a report an assessment of successes and barriers to action on
AB 857 compliance.
The state should develop criteria for smart growth development and prioritize infra-
structure funding towards development that meets the criteria.
Update: The Energy Commission is chairing the Climate Action Team Sub -Group on
Land Use and Local Government. The sub -group will be examining the state's
role in infrastructure financing and planning and developing smart growth,
energy, and climate criteria for state agencies to consider for incorporation
into their infrastructure programs.
SE
EXHIBIT 13
unitsbe required to si gri: a Dewtophidnt A gred ment. The purpos of tis requ requirement.
was to reC;Og11i76 that those who used the .unit.s.ivonld be receiving a financial4indfiall
satisfied that it meets the intent
Mayor Rosansky and Mayor Pro Tern
especially since the Development Agr
applicant for additional, entitlement.
for the proposed Development
benefit has been offered. It is a huge
it is not enough, in my opinion,. have
believes that insufficient public
Y'. cruite frankly, those who suggest
:act it was the City's idea that
residential be added to Newport Center j In mq
1yj , confirmed by the electorate, ought
; ,%: (
to be implemented. And since it was my rocoinnie . lidation U-) the Planning Commission to.
add the Development Agreement . , requirement" to this portion of the General Plan in the
first place, I would hope my opinion as to Wh4 is appropriate will count for something.
If the ante is raised, The Irvine. Company has the tight to say. no thanks, and that would be
a shame.
Thanks for your time.
Larry 1 ucker
EXHIBIT 14
- - - -- Original Message---- -
From: GTP
Sent: Thursday, November 29, 2007 3:53 PM
To: Dan Miller (Gov Relations)
Subject: Fw: Questions on the Newport Center Applications]
Hi Dan,
As you will see below, Barry asked me to tell him why I commented at
the Council meeting that The Irvine Company plan was consistent with
the General Plan. Since I was there for the whole painful process, I
did provide him an answer in a fair amount of detail. It should be the
end of one of his bigger issues, but I guess we will find out tonight
if it is.
Larry
---- Original Message - - - --
From: "GTP" <gtp @ohill.com>
To: <eaton727 @earthlink.net>
Cc: "Wood, Sharon" < swood @city.newport- beach.ca.us>; "Clauson, Robin"
< RClauson @city.newport- beach.ca.us>; "Lepo, David"
< DLepo @city.newport- beach.ca.us>; "Alford, Patrick"
<PAl ford @city.newport- beach.ca.us>; < tbrine @city.newport- beach.ca.us>
Sent: Thursday, November 29, 2007 3:36 PM
Subject: Re: Questions on the Newport Center Applications]
> Hi Barry,
> Sorry for being somewhat slow in responding, but my day job gets in
> the way sometimes! I am forwarding this email to the same people to
> whom you posed your questions.
• Let me address your first question with the time I have. It is
• probably the most important you have raised. But first, a little
• background about the general plan update process.
• As you may recall, during the general plan update process, I had
• wanted to get into the details of the land use decisions well before
• the various sections of the land use element finally were brought
• forward to the Commission. I was concerned that we would be hurried
• on those decisions which I viewed as the most critical we would be
• making. Because the Commission was blessed with you, I knew most of
• the details would be well attended to. While I did read it all, what
• I tried to do was to make sure that I focused on the big picture,
• since I didn't want that to get lost in the sheer volume of minutia
• with which we had to deal.
• You might also recall that I suggested that it would be important
that
> after the plan was voted on by the public (assuming it passed), that
> someone with your skills take a look at the plan anew to clean up the
> inevitable inconsistencies or ambiguities that we had no doubt left
in
> our wake, given the speed with which the general plan was assembled,
i •
• especially the land use portions. As you will see below, the general
• plan is not that clear on your question number one.
• You have noted portions of the general plan that if read alone would
• support the view that there should be no new office built. But take
a
• look at Policy LU 2.4 which states "[Alccommodate uses that maintain
• or enhance Newport Beach's fiscal health and account for market
• demand..." At page 3 -96, take a look at the at the preamble that
• recounts how during the visioning process "some supported growth for
• existing companies, expansion of existing stores, and moderate
• increases for new businesses." LU 6.14.1 states "retail development
• capacity... may be reallocated for other permitted uses in Newport
• Center..." While this'may not be directly on point, it certainly
• allows for the possibility of new office uses since that is a
• permitted use in Newport Center. And LU 6.14.2 has a policy to
>- "provide the opportunity for office development" subject to limits.
I
• believe that this policy is applicable to the 500 hundred block and I
• don't believe the limits actually preclude office in the 500 block.
• But the key provision to me is in LU 6.14.3. That gives the Council
• wide discretion to allow for transfer of development rights within
• Newport Center. They can allow a transfer with a finding that the
• transfer is consistent with the "intent" of the general plan. As I
• recall, the TDR was a concept that was intended to operate in the
• manner in which it had always operated. While I was on the
• Commission, under the prior general plan we had allowed TIC to move
• around entitlement as long as it was traffic neutral. The
• continuation of that policy made sense and still does.
• Newport Center is a big place and Policy LU 2.4 contemplates reacting
• to the marketplace to account for market demand. Flexibility is
• important, and.given the quality of Irvine Company decisions, I was
• more comfortable with them being able to use their judgment than the
• City locking in the specific uses on each and every parcel in Newport
• Center.
• As for the policy overview which is troubling you, I do not believe
• that a policy overview trumps an actual policy. The policy overview
• is inconsistent with policies I have referred to, so the discretion
of
• the Council as to which one of inconsistent provisions of the general
• plan will prevail.
> To address a couple of other points: I also don't know how the
concept
• of
• expanding new buildings works when an old building is torn down and a
• new building takes its place, but elsewhere in Newport Center. Is
• that a new building or effectively an expansion of an existing (and
• obsolete) building.
• If the new office building were built in the 600 block, in the place
• of a torn down building, how would you feel about that? Is that
0
E
> effectively an expansion? Would you feel the same even though it
might
• be a better planning decision to build it in the 500 block?
• Further, couldn't The Irvine Company build a new office tower in the
• place of a torn down building in the 600 block (with a TDR) and build
• a new residential tower in the place where they plan to build the new
• office tower in the 500 block?
• You see where I am
• heading with this. At some point, the intent of the general plan
• takes over, rather than rigid adherence to something that may not
make
• much planning sense. The overall effect is no different because the
• same intensity of development may occur but we are quibbling about
the
> blocks in which a specific type of use may occur.
• And lastly, I view the addition of less than 300,000 s.f. of office
• (partially from tearing down some buildings and transferring other
• entitlement) as a moderate increase given the office market in
Newport
• Center is probably a couple million square feet, give or take a few
• hundred thousand square feet. In my mind, I do not believe the
• general plan was intended to mean no new office by use of the words
• "limiting" in LU 3.3.
• Office is limited since it takes tearing down some office and
• transferring other development rights to achieve any new office. And
• at this point, there should be little ability under the existing
• general plan to build any more office without tearing out a like
> amount.
• Hope.this answers your question about why I feel that the TIC plan is
• consistent with the general plan.
> Best regards,
> Larry
• - - - -- Original Message - - - --
> From: "Barry D. Eaton" <eaton727 @earthlink.net>
• To: "Tucker,Larry" <gtp @ohill.com>
• Sent: Wednesday, November 28, 2007 8:18 PM
• Subject: [Fwd: Questions on the Newport Center Applications]
>
>> Larry,
>> I watched with interest, as you told the CC last night that you felt
>> that the Newport Center application was consistent with the General
>> Plan "in every respect" (or words to that effect).
>> If you have been able to reach that conclusion so firmly, perhaps
you
0
>> can give me your thinking on the first question in the attached
>> email, which I asked at the Nov. 15th PC'meeting, and repeated in
the
>> attached email the following day. So far, staff did not answer the
>> question at the Nov. 15th meeting, did not respond to it in the
>> supplemental staff report for our meeting tomorrow evening (as they
>> said they would at the No. 15th meeting); and, in fact, have not
responded to it at all.
>> Can you share your thoughts on that question with me? (And, if you
>> have thoughts on any of the other questions, I would welcome those
as
>> well.)
>> Thank you very much, Barry
"RECEIVED AFTER AGENDA
LAW OFFICES PRINTED:" 4L'3 i2 -i�o�r
PALMIERI, TYLER. WIENER, WILHELM & WALDRON LLP
A LIMITED LIABILITY PARTNERSHIP INCLUDING PROFESSIONAL CORPORATIONS
ANGELO J. PALMIERI 11926-19961
ROBERT F. WALDRON (192J -1998)
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AMBERLYNN N. DEATON
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BRETT L HORVATH
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VIA MESSENGER
2503 MAIN STREET
EAST TOWER - SUITE 1300
IRVINE, CALIFORNIA 92614-4261
(949) BSI -9400
www.ptwww.00m
December 18, 2007
P.O. BOX 19712
IRVINE, CA 92623 -9712
WRITERS DIRECT
DIAL NUMBER
(949) 851 -7294
mleifer (Mptwww.com
PACSIMILE 1949) 851 -1554
1949) 861n!I 4
19491 757 -1225
Honorable Mayor and Members of the City
Council
City of Newport Beach
3300 Newport Boulevard
Newport Beach, CA 92663
Re: North Newport Center Planned Community (PA2007 -151)
500 -600 Blk Newport Center Drive, 42000 Blk San Joaquin Plaza
Dear Mayor and Members of the City Council:
REPER TO FILE NO.
35019 -000
'+ l
T'7
w
As the City is aware from its acquisitooy actions pertaining to the implementation
of the new City Hall location, this office represents the ownership of 1602 East Coast
Highway (the "Property"). We initially became involved when the City sought to locate
its new City Hall on a portion of the Property and undertook activities pertaining to
situating its new City Hall. Although the City now appears to be attempting to situate the
new City Hall nearby through a transaction with another owner, the subject property and
property ownership has and continues to be adversely affected by the actions and
deliberate nonactions relating to the new City Hall site implementation and the
acquisition efforts related thereto.
The ownership would like to resolve their issues with the City's impacts on their
property in an amicable fashion. However, if that does not occur, the ownership will
consider all legal options and remedies concerning the City's unreasonable acquisition
related activities. As such, this objection is submitted on behalf of the ownership of the
property located at 1602 E. Coast Highway in Newport Beach. As has been outlined in
the public record at the recent public hearing during which the City considered related
actions to those proposed this evening, ownership objects to the "recommended" actions
set forth in City Council Agenda item No. 3 for the December 18, 2007 Newport Beach
IJ
PALMIERI, TYLER, WIENER, WILHELM & WALDRON LLP
Honorable Mayor and Members of the City
Council
December 18, 2007
Page 2
City Council meeting, to adopt Ordinance No. 2007 -20, approving Code Amendment No.
CA2007 -007 and Planned Community Development Plan Amendment No. PD2007 -003
and to adopt Ordinance No. 2007 -21, approving Development Agreement No. DA2007-
002.
For purposes of preserving their rights in this matter, Golf Realty Fund, O Hill
Properties and NBCC Land join in the comments and objections contained in the
December 11, 2007 letter to you from John G. McClendon on behalf of Greenlight and in
the comments and objections contained in the December 11, 2007 letter to you from
Daniel Shanahan. This confirms our objections to the City Council actions purported to
have taken place on December 11, 2007, concerning Addendum to Final Environmental
Impact Report (SCH No. 2006011119) for the City of Newport Beach General Plan 2006
Update, Traffic Study No. TS2007 -001, the Affordable Housing Implementation Plan,
and purporting to approve the Transfer of Development Rights. The ownership reserves
all rights to contend that the objections in the record result in the invalidity of the actions
purportedly approved or to be approved pertaining to these related matters.
In order to avoid exacerbating the City's exposure created by its attempts to
acquire the subject property and staff conduct relating to that activity , we urge that you
not take the recommended actions set forth in Agenda Item No. 3 on the December 18,
2007 City Council Agenda.
��
cc: Robert 0 Hill
SECTION I. STATISTICAL ANALYSIS
Block 500
Project Area
Net Acreage 4.37
2. Percentage of Site Coverage
a. Building Footprint 20% maximum
b. Landscape 30% minimum
3. Maximum building floor area will not exceed 97,400 square feet.
4. The square footage of individual building sites is subject to adjustment as long as the limitations
on total development are not violated. Any adjustment in the square footages for each building
site shall be reviewed and approved by the Planning Director.
I a t� cn, -� - #15
VIA FACSIMILE AND U.S. MAIL
December 11, 2007
Mayor Steven Rosansky
Newport Beach City Councilmembers
City of Newport Beach
3300 Newport Boulevard
Newport Beach, CA 92663
Re: Comments regarding proposed EIR Addendum for Development Agreement
(City Council Agenda Item #15)
Dear Mayor Rosansky and Newport Beach City Councilmembers:
Introduction and Summary of Comments. I write as a concerned Irvine Business Complex
resident to comment on the proposed Ordinance approving Code Amendment No.
CA2007 -007 and Planned Community Development Plan Amendment No. PD2007 -003
for North Newport Center Planned Community (PA2007 -151) located in the 500 -600
Block of Newport Center Drive and the 42000 Block of San Joaquin Plaza as well as the
accompanying Addendum to the Final Environmental Impact Report (SCH No.
200601 1 1 19) for the City of Newport Beach General Plan 2006 Update ( "Addendum "),
Traffic Study No. TS2007 -001 (the "Traffic Study "), the Affordable Housing
Implementation Plan, the Transfer of Development Rights, and Development Agreement
No. DA2007 -002 (the "Development Agreement'). As detailed below, the proposed
Addendum to the 2006 General Plan EIR is legally insufficient. The Addendum does not
adequately describe the project and its conclusion, that no fair argument can be made that
a significant environmental effect might flow if Newport Beach adds thousands of new
workers and residents to a fully developed area with severe existing traffic flow problems
is simply not credible. Accordingly, we request that Newport Beach prepare a full
environmental impact report (EIR) for this project. While Irvine residents would be
happy to participate in any scoping session Newport Beach might conduct with respect to
that EIR, we note that at this early stage that we view that traffic, circulation, park and
recreation impacts are of special concern. Planning Commissioner Hawkins, an
Attorney who has sued the City of Irvine and the developer of the project at 2323 Main
Street in Irvine on behalf of his client, voiced his concerns at the Planning Commission
hearing on the lack of sufficient environmental review.
Page I of 7
For this Council to vote to sue all Irvine Business Complex residential development
projects based on an allegation of insufficient environmental review and then to use the
same level of review (and in the case of the most recent developments in Irvine, a lower
level of review) is hypocritical at the least.
Background Law. As you know, the California Environmental Quality Act, Public
Resources Code §§ 21000 et seq. ( "CEQA "), requires an EIR to be prepared whenever
"there is substantial evidence, in light of the whole record before the lead agency, that a
project may have a significant effect on the environment...." (Pub. Res. C. § 21082.2
(d)). In determining whether or not to prepare an EIR, the lead agency must consider both
potential project - specific impacts as well as potential cumulative impacts arising from the
project. Lighthouse Field Beach Rescue v. Santa Cruz (2005) 131 Cal.AppAth 1170,
Pub. Res. C. § 21002.1. The requirement for preparation of an EIR is a "low threshold,"
and doubts must be resolved in favor of preparation of an EIR (No Oil, Inc. v. Los
Angeles (1974) 13 Cal.3d 68; Citizen Action to Serve All Students v. Thornley (1990) 222
Cal.App.3d 748).
Only where there is no substantial evidence that the project may have a significant effect
on the environment can a lead agency prepare an Addendum or NMD in lieu of an EIR.
See Pub. Res. C. § 21080(c), State CEQA Guidelines 14 CCR §§ 15064 (f)(3).and 15070
(hereinafter "Guidelines "). Newport Beach must consider all information now in its
hands, as well as the evidence contained in comments submitted during the public review
period (Pub. Res. C. § 21091(d)(1)).
Reliance on a prior EIR to support a Addendum to the 2006 General Plan EIR is
appropriate only where the project remains substantially the same as that analyzed in the
earlier document and no substantial changes in the circumstances of the project have
occurred since the earlier document was adopted, and no substantial changes will result
from the revised project, and perhaps most significantly, the project will not have any
significant impacts not discussed in the previous EIR. Snarled Traffic Obstructs
Progress v. San Francisco (1999) 74 Cal.AppAth 793, Guidelines § 15162.
The proposed Addendum to the 2006 General Plan EIR relies on the 2006 General Plan
EIR and that reliance is unsupportable. The 2006 General Plan does not account for
substantial increases in traffic in the vicinity of the site and major changes in the Orange
County freeway and toll road system.
A review of the record demonstrates that the Addendum to the 2006 General Plan EIR is
fatally flawed. A fair argument can plainly be made that this new project will have a wide
variety of project - specific potential environmental impacts as well as a plethora of
cumulative impacts when considered in light of other projects in the vicinity of the
Newport Center. Further, the Initial Study fails to adequately describe the project,
identify the baseline environmental setting, or analyze the impacts of the project. In short,
it is cursory, incomplete and unconvincing. It will not withstand judicial review.
Page 2 of 7
It is noteworthy that when the information requirements of CEQA are not complied with,
an agency fails to proceed in a "manner required by law ", and has therefore abused its
discretion. Pub. Res. C. §§ 21168.5, 21005(a); County ofAmador v. El Dorado County
Water Agency (1999) 76 Cal.AppAth 1428; Environmental Planning & Information
Council v. County of El Dorado (1982) 131 Cal.App.3d 350; Save Our Peninsula Comm.
v. Monterey County (2001) 87 Cal.AppAth 99.
Specific Shortcomings of the Addendum to the 2006 General Plan EIR. The following
is a brief list of the evidence that supports our conclusion that a full EIR is required:
1. The Addendum to the 2006 General Plan EIR is inadequate. The failure to
identify even one potentially significant impact that may result from this project is tacit
evidence that it was prepared to support the project without the full study as required by
law. Specific examples of how the analysis is woefully inadequate are set forth below.
2. This project is inconsistent with the 2006 General Plan. Land Use Section 3.3
(Opportunities for Change) in the General Plan under the subheading for Fashion
Island/Newport Center specifically states:
"expanded retail uses and hotel rooms and development of residential in
proximity to jobs and services, while limiting increases in office development"
If this project was contemplated by the General Plan Update and EIR in 2006,
then why was this statement of policy specifically stated in the "Opportunities for
Change" section? This is prima facie evidence that this change in use was not
contemplated and therefore must be studied.
3. Development rights may be transferred within Newport Center, per LU 6.14.3
of the 2006 General Plan, subject to the approval of the City with the finding that the
transfer is consistent with the General Plan and that the transfer will not result in any
adverse traffic impacts. This project would transfer a portion of the existing development
rights from Block 600 to Block 500. The transfer includes the conversion of 165 unbuilt
hotel rooms to office space, and the transfer of this entitlement to Block 500. It also
includes the removal of 17,300 square feet (sf) of health club, 16,444 sf of restaurant, and
8,289 sf of office from Block 600 and the transfer of the entitlements to Block 500.
Although a traffic study was conducted, it inadequately accounted for the conversion of
hotel rooms to office square footage, it failed to accurately reflect the baseline conditions,
and it failed to fully analyze the impacts of transferring these development rights to a
different part of Newport Center.
The traffic study found impacts from this project, but determined that they were
"feasibl[y] mitigated] ". The Addendum then argues that these impacts and mitigation
were "consistent with the 2006 General Plan Circulation Element," however, for the
reasons stated above, this is false. As quoted above, the land uses for the project area
contemplated expanding retail uses and hotel rooms while limiting increased office
development. This project is inconsistent with both goals of the General Plan because it
Page 3 of 7
converts unbuilt hotel entitlements, reduces overall retail and health club uses and
increases office development by a corresponding amount.
The mitigation for the impacts caused by this project requires the applicant to
construct a third eastbound turn lane at the intersection of MacArthur Boulevard and San
Joaquin Hills Road. The Addendum states that the applicant "will work with the City on
design and development of circulation enhancements in the North Newport Center area."
This casual approach to mitigation is not supported under CEQA. A full EIR would and
should establish a time -table and guidelines for these required mitigations.
4. The Affordable Housing Implementation Plan is unnecessarily vague and
ambiguous. The applicant should commit now to the exact number of units and locations
of the units and the proper environmental study must be undertaken.
5. The following provisions of the Development Agreement are not fully
examined by the Addendum:
• Cancellation of Circulation Improvement and Open Space Agreement and
Bonita Canyon Annexation and Development Agreement
o Comment: The 2006 General Plan EIR found that the City was
hugely impacted in its parks. The deficiency was 38.8 acres.
• Payment of in -lieu park fees for 430 residential units, including early
payment of a portion of fees as matching grant for OASIS Senior Center
o Comment: The 2006 General Plan EIR found that the City was
hugely impacted in its parks. The deficiency was over 38.8 acres.
• Circulation enhancements in the North Newport Center area
o Comment: See comments above.
• Impacts of the City using 375 parking spaces in the project area
• Funding mechanisms for future mitigation after the increases on
development fees are limited
6. The aesthetics section of the Addendum does not sufficiently analyze the
potential degradation of the existing visual character or quality of the site and its
surroundings or the impact or creation of a new source of substantial light or glare, which
would adversely affect day or nighttime views in the area. The 2006 General Plan EIR
stated that the "visual character would change as development intensity increased, but
the impacts would not be considered significantly adverse... therefore, the proposed
General Plan Update would have a less - than- significant impact on the visual character of
developed urban areas." (See page 4.1 -19) The General Plan did not contemplate this
intensive office building, therefore it could not have anticipated these two potential
impacts. The proposed mitigation of merely requiring a shade study is insufficient.
7. There is no analysis of air quality impacts; in fact, the Addendum raises no
possible significant environmental impacts, despite the fact the plan will add thousands of
new workers operating thousands of automobiles in a congested area, and despite the fact
that virtually every project in the South Coast Air Basin exceeds the thresholds of
Page 4 of 7
significance established by the South Coast Air Quality Management District. We request
that you reflect in the record of this matter the current standards of significance
promulgated by SCAQMD for analyses of this type.
8. The climate change section of the Addendum quotes the 2006 General Plan
EIR which states that the nature of the project area promotes a mixed -use, pedestrian-
friendly district. (See page 4.2 -12). The Addendum states that the project is not expected
to result in any climate change impacts due to greenhouse gas emissions beyond the
impacts of the development set forth in the General Plan EIR. It is plain to see from
these two statements alone that the Addendum is an insufficient environmental review. If
the area is a mixed -use, pedestrian- friendly area and at least three of the mixed uses
(health club, restaurant, and hotel) are removed as part of this project and converted to
office uses (with the same traffic patterns of the other roughly 1,746,979 square feet of
office/commercial), it cannot be argued that the 2006 EIR contemplated the impacts of
this project and the changes in land uses.
9. The biological resources section of the Addendum argues that there are no
possible impacts because the site has been developed for the last forty years. This
project's adjacency to the back bay may cause the project to have an impact on protected
migratory birds who fly into and out of the Back Bay and could be impacted by a ten -
story building in their flight path and the increased glare from the glazing.
10. The Land Use and Planning section of the Addendum completely ignores LU
3.3 of the General Plan as stated above several times. This conversion conflicts directly
with the land use plan and policy as stated in the General Plan and must be studied in an
EIR.
11. The Recreation and Open Space section of the Addendum is supposed to
analyze any potential impacts of the project which would increase the use of existing
neighborhood and regional parks or other recreational facilities such that substantial
physical deterioration of the facility would occur or be accelerated. This project is
removing the 24 Hour Fitness located in the 600 Block of Newport Center. The City is
already deficient by 38.8 acres of park acreage, with 7 of 12 service areas experiencing a
deficit of recreational acreage. Through the Development Agreement, the project includes
cancellation of the Circulation and Improvement and Open Space Agreement (CIOSA).
Furthermore, the project includes the payment of park in -lieu fees. The preceding actions
will all result in potential significant impacts and should be studied. Additionally, the
payment of in -lieu fees instead of the actual dedication of land is not a proper mitigation
since there is no guarantee that the land will ever be provided or available and no
schedule of when the needed recreation and open space will be available is provided.
12. As was noted above with respect to air quality, a new, updated, and thorough
review of the traffic impacts that will result from this project is required. The General
Plan review did not foresee development of this magnitude in this area. Given the
changes in regional traffic since even 2006, changes in the mix of residential and
commercial uses in the area, substantial pending residential development in adjacent
Page 5 of 7
cities, and construction of new roadways that may improve or exacerbate transportation
in this area. The Addendum fails to conclude this new project may result in significant
traffic impacts. This is simply not credible. The development agreement itself contains
$5m+ for traffic improvements.
Additionally, the Addendum claims that the 2006 EIR identifies that the implementation
of the 2006 General Plan could result in a substantial increase in the number of vehicle
trips, volume to capacity of roadways, and congestion at intersections when compared to
existing conditions in the City. The General Plan traffic study and EIR did not analyze
the impacts on any of the intersections in neighboring jurisdictions such as Irvine. Even
if it had, it would not have contemplated this change in use. Hotel rooms, restaurants,
and a 24 Hour Fitness have very different traffic patterns and impacts. then a ten -story
office tower. Due to the lack of new residential projects and affordable housing in
Newport Beach, additional office space will have huge impacts on the City of Irvine
since anecdotal evidence suggests that most of the employees will be coming from the 5
and 405 freeways and thus traveling through Irvine to Newport Beach.
Moving City Hall from its current location to Newport Center will result in changes in
traffic patterns which were not contemplated by the 2006 EIR and insufficiently
addressed by the Addendum. The traffic study states that a potential new City Hall of
72,000 sf would generate 108 peak hour trips These specific peak hour trips were not
contemplated in the 2006 EIR.
The impacts at MacArthur Blvd. and San Joaquin Hills Road, Goldenrod Avenue at
Coast Highway and Marguerite Avenue at Coast Highway have not been sufficiently
mitigated. It is not sufficient to state that there are no feasible improvements available at
the latter two and that these two intersections operate at LOS "E." This project should
study these impacts and propose mitigation.
13. The document discloses that the new office square footage could be built in
Newport Center if the project is approved, but does not analyze the consequences of that
development nor clearly indicate the relationship between this project and the subsequent
actions which will bring thousands of new workers to this congested area. This, as you
know, is "piecemealing" in violation of CEQA. Orinda Ass n v. Board of Supervisors
(1986) 1.82Cal.App.3d 1145, 1171.
The Addendum to the 2006 General Plan EIR has further inadequacies and
inconsistencies beyond those detailed above. However this short letter is sufficient to
demonstrate the point that the Addendum is insufficient. The law is quite clear that if a
fair argument can be made that significant environmental issues may result from a
project, even if a fair argument may be made to the contrary, an EIR must be completed.
We respectfully submit that we have made that fair argument that this project may not go
forward until a full EIR is prepared as required by CEQA.
Administrative History/Planning Commission. It should be noted by this Council that at
the Planning Commission hearing wherein this project was reviewed, there was a split of
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the Commission on the question of the Environmental documentation. Commissioner
Eaton noted his concern that the Commission is not following the right procedure to
exclude public review on the environmental document. We agree. This project has been
ram -rodded through the City with little or no input from residents of the cities of Newport
Beach or the surrounding communities or from the City Councils of said communities,
specifically the City of Irvine.
Commissioner Hawkins, who as previously stated herein has represented a petitioner in
their suit based on CEQA against the City of Irvine and the developer of the property at
2323 Main Street in Irvine, stated at the hearing that there are major problems with the
Addendum. He noted that the General Plan argues against the conversion of hotel to
office and that 40,000 square feet of additional office entitlement was "backed out"
between the draft and final EIR. He concluded that the Addendum is not the appropriate
environmental document.
Conclusion . Reliance on an Addendum to the 2006 General Plan EIR is entirely
inadequate for this substantial change to the Newport Beach general plan. The 2006 EIR
inadequately studied many of the issues that are almost certain to arise if the new project
is approved to intensify development in the Newport Center area. There is a substantial
argument that substantial potentially significant environmental impacts will result fiom
adoption of this project. An EIR is clearly required to identify and examine each of those
impacts. We urge you to reject the proposed Addendum to the 2006 General Plan EIR
and to prepare an EIR as CEQA requires. Considering this Council's haste with which to
litigate CEQA matters, it should be noted that the option of retaining legal counsel and
challenging the adequacy of the environmental review of this project in Court, should this
Council proceed under this faulty environmental document, is available. The arguments
being made by the law firm representing the City of Newport Beach, i f valid, will apply
equally when viewed against this project.
Thank you for your attention to these comments. We look forward to working with
Newport Beach to reablve these concerts via a sufficient EIR and would welcome an
opportunity to participate in a seopft meeting regarding that eflbrt.
Very truly yours,
Daniel Shanahan
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