Land Use Matters Publication September 2014

Land Use Matters, Alston & Bird LLP, September 2014.

Land Use Matters

City of Los Angeles

Department of City Planning

Master Planned Development Zone Ordinance

At the October 9, 2014, meeting the City Planning Commission (CPC) will continue its consideration of a proposed ordinance to establish a Master Planned Development (MPD) Zone and reopen public comment. The proposed MPD Zone is intended to facilitate the development of campus-like unified and integrated development projects that are large and complex, eliminating the need for separate costly and time-consuming conditional use permit, variance and site plan review applications. Unlike specific plans that typically regulate multiple properties with multiple owners, MPD Zone developments must be owned and planned by a single owner or entity.

In response to public comments and questions from the CPC at the July 24, 2014, meeting, planning staff is recommending revisions to the proposed ordinance to require projects to consist of at least three buildings on a minimum of three acres in order to qualify for the MPD Zone. The development plan for MPD Zone property must also include 500,000 square feet or more of nonresidential floor area, 500 or more dwelling units or guest rooms, or a combination of 250,000 square feet of nonresidential floor area and 250 dwelling units or guest rooms. The new zone classification will also be available to parks or recreation facilities that are 20 acres or more in area and open to the public. Other key revisions to the proposed ordinance include clarification on how uses that normally require a conditional use permit will be considered, provisions to prevent reduction in industrial-zoned property, and the requirement for an economic study for projects proposing a conversion of property zoned for industrial uses or projects proposing a density bonus or request for a development agreement. The proposed revised ordinance also includes a provision to require a covenant to ensure that affordable housing and public and private improvements are provided on a pro rata basis if portions of a project are sold off or if later phases of a project are not completed. Click here to read the staff report and proposed revised ordinance.

State of California

Governor’s Office of Planning and Research

Draft Revisions to CEQA Guidelines for Measuring Transportation

On August 6, 2014, the Governor’s Office of Planning and Research (OPR) released a draft of proposed changes to the California Environmental Quality Act (CEQA) guidelines that will change how projects analyze transportation impacts. The proposed revisions implement part of Senate Bill 743 (September 2013), which required the OPR to implement alternative transportation standards that will “promote the reduction of greenhouse gas emissions, the development of multimodal transportation networks, and a diversity of land uses.” (Pub. Res. Code, § 21099(b)(1).) Today, many jurisdictions measure a project’s potential transportation impacts using the “level of service” standards, commonly referred to as “LOS,” which evaluate vehicle delay at intersections and on roadways. Under the proposed revisions, auto delay will not be considered a significant impact. According to the OPR, use of LOS standards ends up discouraging infill development and new infrastructure for transit, cycling and walking. LOS standards could also hide potential benefits from those projects, such as a reduced reliance on car transportation due to centralized living, work and shopping areas.

By adding new Section 15064.3 to the CEQA Guidelines, the proposed revisions will implement a new way to measure a project’s transportation impacts by “vehicle miles traveled” (VMT), or the distance of automobile travel associated with a project. Other relevant factors in the environmental analysis will include impacts to transit and non-motorized travel (e.g., bicyclists and pedestrians) and the safety of all travelers (e.g., whether motor vehicle speeds will increase). The proposed guidelines provide examples of what may indicate a significant impact (e.g., VMT greater than the regional average for the land use type) and what may indicate a less than significant impact (e.g., a net decrease in VMT compared to existing conditions). A lead agency’s evaluation of VMT will be subject to the “rule of reason.” Agencies will still need to analyze transportation impacts to air quality, noise and safety where appropriate.

These revisions as drafted could pose serious concerns for developers and lead agencies. The revisions provide only vague standards for agencies to apply VMT models. The proposed methodology allows a lead agency to use “models to estimate a project’s vehicle miles traveled,” but the lead agency “may revise those estimates to reflect professional judgment based on substantial evidence.” (Proposed CEQA Guideline § 15064.3 (b)(4).) The lack of industry standards for VMT models, coupled with the agency’s discretion to revise estimates, will lead to uncertainty in evaluating significant impacts and could open the door for more challenges from project opponents. The proposed revisions also make assumptions that may not be true. For example, the revisions assume mass transit modes of transportation will necessarily be more energy efficient than transportation by vehicle. The revisions also do not account for potential conflicts between local land use plans, which might have standards for improved roadway capacity as mitigation measures, and the proposed guidelines that assume increased roadway capacity will lead to a significant impact, which, in turn, could trigger significant impacts under the new analysis even if the surrounding infrastructure can support that development.

The new provisions will apply immediately only to projects within one-half mile of major transit stops or high quality transit corridors, although lead agencies with projects outside those areas can also update their provisions immediately to comply with the new guidelines. The new provision will apply statewide on January 1, 2016. Comments on the proposed changes must be submitted to the OPR by October 10, 2014. The full draft of proposed changes can be read here.

California Environmental Quality Act

Citizens for the Restoration of L Street v. City of Fresno (5th App. Dist., 8/29/14)

The lead agency prepared a Mitigated Negative Declaration (MND) for a residential development project on parcels that contained two houses built in the early 20th century. The court held that the “substantial evidence test,” which is more deferential to the lead agency, applied to the question of whether structures should be considered historical resources within the meaning of CEQA. The court reasoned that this question was a foundational question that had to be answered before addressing the question of whether the project may cause a significant impact on the environment (the latter question being governed by the “fair argument” test). In addition, the court held that the lead agency violated certain procedural requirements in improperly delegating the decision concerning approval of the MND to the city’s Preservation Commission. Download Opinion

Rominger v. County of Colusa (3rd App. Dist., 9/9/14)

In a very fact-specific decision, the court upheld the use of a Mitigated Negative Declaration for a subdivision on all grounds, except for one. The subject property was being used for agricultural operations with some related light industrial uses. Previously, the county changed its general plan and zoning designation for the property from exclusively agricultural to agricultural and industrial. Years later, the property owner filed for a tentative subdivision map to divide the property into 16 parcels for financing purposes, although no new specific use was identified in the application. In preparing the MND, the lead agency assumed a hypothetical future use for the property. The court first rejected the opponent’s various procedural arguments, including noticing issues, primarily based on a failure to show prejudice. The court then rejected all of the opponent’s arguments concerning potential environmental impacts, including conversion of agricultural land, odors, noise, air quality, greenhouse gas emissions and water supply. However, the court did find that the project opponent had established a fair argument that the project may cause a significant traffic impact on one intersection, which triggered the need to prepare an environmental impact report. Download Opinion

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