February 2004

The Statehouse

By James Lawlor

California: 'Little RLUIPA' Fails. A bill that would have enacted a state version of the federal Religious Land Use and Institutionalized Persons Act died in committee January 14. A.B. 600, sponsored by Assembly Member Ken Maddox, would have imposed limitations on local governments' exercise of their land-use regulatory powers that would be considerably more stringent than those imposed by the federal law. The California APA chapter opposed the bill, as did the League of California Cities, the California State Association of Counties, and a number of homeowners associations.

The bill would have barred any public agency from implementing a land-use regulation that imposed a substantial burden on a person's religious exercise, unless the agency demonstrated the regulation furthered a compelling governmental interest and was the least restrictive means of furthering that interest. The bill expressly included the California Environmental Quality Act (CEQA) as a land-use regulation.

It defined "compelling governmental interest" as an actual interest in protecting public health or safety, but expressly excluded as compelling governmental interests enforcement of a jurisdiction's zoning code, aesthetic considerations, traffic, encouragement of other uses of the land, and prevention of urban blight. It also provided that the use of a private residence for religious exercise was to be considered a residential use.

The bill defined "religious exercise" broadly as including any exercise of religion, whether or not compelled by or central to a system of religious belief, including, but not limited to, communal worship, religious meetings, religious education, and day care services. It also included as religious exercise the construction of structures, parking lots and "other necessary facilities" for these purposes.

One of the chapter's top legislative priorities for 2004 will be the passage of a bill encouraging infill development, chapter leaders declared at a news conference in Sacramento January 30. Along with the California Futures Network, and housing and transportation groups, the chapter will sponsor a bill that would require cities and counties to designate infill areas and to encourage development in those areas. Under the bill, which will be introduced by Assembly Member Tom Torlakson (D-Contra Costa), cities and counties would be required to adopt our update infill ordinances by 2009.

Another priority will be urging Gov. Schwarzenegger to issue an executive order implementing the provisions of A.B. 857, enacted two years ago, that requires state spending on infrastructure to be consistent with supporting infill, protecting agricultural resources and open space, and encouraging new growth near existing developed areas. Also, the chapter will support efforts to make production and supply of housing the focus of local governments' concern. It wants to see jurisdictions that approve housing projects be rewarded, and it wants to ensure that CEQA is not used to delay or derail worthy projects.

West Virginia: Enabling Law Update. The West Virginia Chapter's legislative committee has been working on an extensive rewrite of the state planning and zoning enabling law, § 8-24 of the West Virginia Code. State Sen. Brooks McCabe, AICP, has been spearheading the effort to get all interest groups behind the update, Marjorie Ryan, the chapter's legislative liaison, reports.

Some of the organizations that have been asked to participate in the update process include the Municipal League, the County Commissioners Association, the Association of County Officials, the Farm Bureau, the League of Women Voters, the Manufactured Housing Association, the Home Builders Association, the American Institute of Architects, the Association of Realtors, and a number of environmental organizations.

The revisions concentrate on four major areas: comprehensive planning, zoning ordinances, expanding the coverage of the subdivision ordinance, and definitional issues. Some provisions the chapter is advocating include expanding the contents of the comprehensive plan; requiring consistency between the comprehensive plan and the zoning ordinance; provision for periodic review of the comprehensive plan; a requirement that the plan be prepared before a subdivision or zoning ordinance is enacted; tying future land use to infrastructure development; incorporation of development standards for large single-lot developments, such as shopping centers; and allowing regulation of architectural features.

Virginia: Sidling up to APF. David Kovacs, AICP, the Virginia Chapter's director for policy and legislation, reports the state legislature seems to be taking some tentative steps toward a serious discussion of adequate public facilities and infrastructure issues. Although the House Committee on Cities, Counties and Towns voted to refer a package of bills relating to APF to the Commission on Growth and Economic Development for further discussion this summer, the Senate Committee on Local Government reported favorably on SB 580, which applies to severe air quality non-attainment areas. It authorizes the use of transferable development rights and a transportation overlay district in those areas, to avoid federal sanctions for failure to improve air quality. Most of the Virginia suburbs of Washington, D.C., are non-attainment areas.

Coincidentally, a federal appeals court in Washington, D.C., on February 4 ruled the EPA erred in granting Maryland, Virginia, and the District of Columbia conditional approval of plans to comply with Clean Air Act standards relating to ozone when the plans lacked statutorily required elements. "EPA was not authorized to grant conditional approval to plans that did nothing more than promise to do tomorrow what the Act requires today," the court declared. As a result, the region will have to move more quickly to implement specific pollution control measures, including limits on vehicle emissions.

In other action, the Senate committee carried over to the 2005 session a bill that would allow localities to defer development projects where construction would result in a violation of established level of service standards. The bill was supported by the chapter, as well as education interests and representatives of high-growth municipalities. It was opposed by home builders, the Realtors association, and the Virginia Chamber of Commerce, among others.

Massachusetts: Legislative Briefing. The Massachusetts APA chapter and the Massachusetts Association of Planning Directors will co-host a legislative briefing on efforts to reform the state's zoning laws February 24 at the State House. Senator Pam Resor, the sponsor of legislation drafted by the Zoning Reform Working Group, will discuss the latest draft of the bill.