Monday, June 15, 2015

California Supreme Court Upholds San Jose Inclusionary Zoning Policy

In Cal. Bldg. Industry Assn. v. City of San Jose (opinion filed on June 15, 2015), the California Supreme Court upheld San Jose’s inclusionary housing ordinance that requires new residential developments to sell 15 percent of proposed new units at an affordable housing price.

In reaching its decision, the Court opined, “[T]he ordinance does not impose an ‘exaction’ on developers’ property under the takings clauses of the federal and California Constitutions.” In the Court’s opinion, this is not a case of an unconstitutional condition or exaction as asserted by California Building Industry Association (CBIA), but rather an “example of a municipality‘s permissible regulation of the use of land under its broad police power.” This constitutional “police power” analysis is significant in that it is far more difficult to overcome and removes a landowner's' right to just compensation for a government taking of private property.

The City of San Jose enacted an inclusionary housing ordinance that, among other features, requires all new residential development projects of 20 or more units to sell at least 15 percent of the for-sale units at a price that is affordable to low or moderate income households.  (See below for a description of the ordinance.)  CBIA’s challenge rested primarily on the unconstitutional conditions doctrine, as applied to development exactions under the takings clauses (or, as they are sometimes denominated, the just compensation clauses) of the United States and California Constitutions.

The CBIA maintained that the ordinance was invalid on its face on the ground that the City, in enacting the ordinance, failed to provide a sufficient evidentiary basis to support its policy. The ordinance failed to demonstrate a reasonable relationship between any adverse public impacts or needs for additional subsidized housing units in the City caused by or reasonably attributed to the development of new residential developments. CBIA argued that the conditions imposed by the City's inclusionary housing ordinance would be valid only if the City produced evidence demonstrating that the requirements were reasonably related to the adverse impact on the City's affordable housing problem that was caused by or attributable to the proposed new developments that are subject to the ordinance’s requirements, and that the materials relied on by the City in enacting the ordinance did not demonstrate such a relationship.

The Court disagreed with CBIA and dismissed the takings based argument.  The Court opined, “[T]he conditions imposed by the San Jose ordinance at issue here do not require a developer to pay a monetary fee [which may have been a takings issue] but rather place a limit on the way a developer may use its property.” The Court further opined, “[T]he conditions are intended not only to mitigate the effect that the covered development projects will have on the City's affordable housing problem but also to serve the distinct, but nonetheless constitutionally legitimate, purposes of (1) increasing the number of affordable housing units in the City in recognition of the insufficient number of existing affordable housing units in relation to the City's current and future needs, and (2) assuring that new affordable housing units that are constructed are distributed throughout the City as part of mixed-income developments in order to obtain the benefits that flow from economically diverse communities and avoid the problems that have historically been associated with isolated low income housing.”

As a result of this opinion, municipalities in California have far greater latitude for imposing inclusionary zoning requirements by ordinance on residential developers, so long as its legislative bodies can show a “reasonable relationship to the public welfare” that has “a reasonable basis in fact . . . to support the legislative determination.”

Summary of San Jose's Inclusionary Zoning Policy

  • Applies to all residential developments within the City that create 20 or more new, additional, or modified dwelling units
  • 15 percent of the proposed on-site for-sale units in the development shall be made available at an affordable housing cost to households earning no more than 120 percent of the area median income for Santa Clara County adjusted for household size
  • The requirement increases to 20 percent of the total units in the residential development if (1) units are provided off-site, or (2) developer opts for in-lieu fees for equivalent units
  • Incentives include (1) density bonus, (2) reduction of parking spaces, (3) reduction in set-backs, and (4) financial subsidies and assistance from City in sale of affordable units
  • A developer may seek a waiver from these requirements by showing "no reasonable relationship between the impact of a proposed residential development [and the ordinance]"
The San Jose inclusionary housing policy is further discussed on the City's web site at

Wednesday, May 20, 2015

Would You Use Public Transit if You Could Save between $20,000 and $80,000 on Your Home?

The cost to build a parking stall can range anywhere from $20,000 to $80,000 or more.

Progressive communities like the City of Seattle, San Francisco Bay Area, and Washington DC are looking beyond parking stalls and pursuing strategies toward promoting transportation, parking, and personal mobility efficiencies.  For example, the City of Seattle does not require parking for new buildings located in downtown or transit-friendly areas, and it continues to investigate policies that allow it to grow and evolve in ways that are functional, economic, and livable.

In a recent report prepared for the Seattle City Council, the City's planning department and state DOT analyzed the City’s vehicle and bicycle parking requirements for residential uses.  Their approach placed a preference on "lower costs to build housing rather than the storage of automobiles."

The report identified the following findings and best practices:

  • Take steps to aid housing affordability by limiting the financial impacts of parking on housing
  • Avoid requiring excess parking
  • Manage on‐street parking to reduce demand
  • Requirements for off‐street parking artificially support driving
  • Requiring more off‐street parking does not directly lead to less on‐street parking demand
  • Increasing access to and knowledge about transportation helps people choose from a variety of convenient and affordable options
  • Housing and transportation costs are the greatest burdens on household budgets
  • Equitable approaches that provide transportation options make a real difference for those who most need those choices
  • Use a combination of strategies
Puget Sound Bike Share

Recommendations included:

  • Tailor parking requirements for new development in areas with frequent transit service
  • Require a “residential transportation options program” that includes requirements for multifamily building owners to provide transit passes and other mobility options for residents of new buildings (actual costs of this type of program will be a small fraction of the cost of building new parking)
  • Adopt a map showing where parking is not required, providing more predictability for permit applicants, neighbors, and planning department staff
  • Remove code barriers to shared parking options, and address garage design to facilitate shared use parking; Consider code revisions to allow bike share and car share in‐lieu of required parking
  • Update bicycle parking code requirements to better address secure, comfortable, long‐term bicycle parking needs
The full report, "City of Seattle Parking Review: Report to Council PLUS Committee," April 13, 2015, is available at

Thursday, May 7, 2015

Is Solar Hawaii’s Energy Panacea?

The group calls itself “KULOLO” an acronym for “keep our utilities locally owned and locally operated.”  The group is lead by Robert Harris of Sunrun, formerly the executive director of the Sierra Club Hawaii. 

The only member of Kulolo identified on its website is The Alliance for Solar Choice (TASC).  According to TASC's website:
The Alliance for Solar Choice (TASC) leads the rooftop solar advocacy across the country.  Founded by the largest rooftop companies in the nation, TASC represents the vast majority of the market.  Its members include: Demeter Power; Silevo; SolarCity; Solar Universe; Sunrun; Verengo; and ZEP Solar.
Kulolo’s plans are short on details.  However, they do mention Kauai Island Utility Cooperative (KIUC) as a favorable model.  KIUC is a not-for-profit generation, transmission, and distribution cooperative owned and controlled by its members.  However, KIUC does not focus solely on solar energy.  KIUC’s energy portfolio includes a growing percentage of hydropower, photovoltaic, bio-fuel, and biomass.

Kulolo’s proposal, if it includes Oahu, should take into account land use policies that evolved over several generations.  Existing community and general plans direct growth away from agricultural lands and open space to the urban core.  Part of Oahu’s future will include communities that build up rather than out.  This means less rooftops for solar.

If Kulolo is successful, let us hope that the outcomes they pursue for the public are as sweet as their moniker

28th Session of the Hawaii State Legislature Ends Today

The 28th session of the Hawaii state legislature ends today, sine die.  

Photo Source
But do not despair, the same cast—some in new roles—will be back next year for the Opening Day of the 2016 Session on January 20, 2016.  Next year is an election year, so it is sure to be even more interesting at our people’s branch of government.

While the legislature officially ends its business for the year, the governor still has some work to do.  According to the Legislative Reference Bureau, the governor has until June 29, 2015 (35th day after adjournment sine die), to give notice of his intent to veto any bills.  The governor has until July 14, 2015 (45th day after adjournment sine die), to veto any bills.  After July 14, 2015, any bills that he has not vetoed become law without his signature.

I will be writing about significant bills related to land use that passed this legislative session in the coming weeks.  Stay tuned. 

Wednesday, April 22, 2015

Land Use Cases to Watch: Hawaii Supreme Court

Kilakila `O Haleakala v. Board of Land and Natural Resources, was heard by the Hawaii Supreme Court on Thursday, April 2, 2015.  This appeal arises from BLNR’s granting of a conservation district use permit (“CDUP”) to the University of Hawaii (“UH”) on December 1, 2010.  The CDUP allows the construction of the Advanced Technology Solar Telescope (“ATST”) project atop the summit of Haleakala on Maui. 

Kilakila `O Haleakala and others challenge the CDUP on several grounds.  In response, UH and BLNR argue that its findings (1) were not "clearly erroneous" (the standard of judicial review), and (2) complied with the CDUP criteria the board must consider.  UH and BLNR ask the court to affirm the ICA and circuit court’s decisions upholding the CDUP.

Questions from the court primarily related to (1) connection between impacts and proposed mitigation to address those impacts, (2) potential impact of political pressure on due process, and (3) measuring cumulative impacts.

Surfrider Foundation v. Zoning Board of Appeals, City & County of Honolulu, was heard by the Hawaii Supreme Court on Thursday, February 19, 2015.  This appeal arises from the City’s granting of a zoning variance from Revised Ordinances of Honolulu (“ROH”) § 21-9.80-4(g)(2), in 2010. 

ROH § 21-9.80-4(g)(2), provides  that “no structure shall be permitted” within 100 feet of the certified shoreline and that “[b]eyond the 100-foot line there shall be a building height setback of 1:1 (45 degrees) measured from the certified shoreline.”  The City variance allows the structure to be taller and closer to the certified shoreline based on its assessment of variance factors under the City Charter.

Sierra Club v. Castle and Cooke Homes Hawaii, will be heard by the Hawaii Supreme Court on Thursday, May 21, 2015.  This appeal arises from the State Land Use Commission’s (“LUC”) granting of a land use district boundary amendment to Castle and Cooke that would allow the Koa Ridge Makai and Waiawa commercial/residential developments.  Sierra Club argues that the reclassification violated Article XI, Section 3 of the Hawaii State Constitution, which provides that the “State shall conserve and protect agricultural lands,” and that “[t]he legislature shall provide standards and criteria,” to implement this provision.  They also argue that the Commission violated Hawaii Revised Statutes §§ 205-41 through -52, which implements said constitutional provision.

Monday, April 13, 2015

Panel on Clean Energy and Transportation: Land Use Entitlements

I recently had the pleasure of joining Michael Formby, Director of the Department of Transportation Services at the City and County of Honolulu, and Harrison Rue, Community Building and TOD Administrator for the City to discuss challenges and opportunities for transitioning to cleaner fuels and provide updates on TOD in Hawaii.  The Natural Resources Section of the Hawaii State Bar Association sponsored the panel.

My contribution focused on opportunities for TOD along the proposed 20-mile, 21-station route (and future extensions), with a focus on TOD entitlements required in the various jurisdictions along the route.

Below is a copy of my 5-minute presentation.

This presentation is based on past articles I wrote on TOD, which you can find at Transit-Oriented Development (TOD).

Mr. Rue's presentation provided an overview of the City's TOD vision and implementation strategies.  His presentation can be found here:

Friday, March 27, 2015

Is the Federal Government's Ambitious Proposal to Expand the Whale Sanctuary the Right Answer?

There are many iconic images of Hawaii, and near the top of that list is the endangered Humpback whale breaching in Hawaii's waters during its seasonal migration.

Source: Pacific Whale Foundation
The Hawaiian Islands Humpback Whale National Marine Sanctuary, was created by Congress in 1992, and approved by Hawaii's governor.  The purpose of the Sanctuary is to protect humpback whales in Hawaii.  It is administered by the National Oceanic and Atmospheric Administration (NOAA), under the U.S. Department of Commerce.  The Sanctuary currently encompasses 1,400 square miles, including the channel between the populated islands of Maui, Lanai, and Molokai.

The current Sanctuary model seems to be working. NOAA research finds that “Humpbacks are increasing in abundance in much of their range.”  Even with its success, the Sanctuary remains relevant.  As the population of whales increases, human-whale interactions increase.

NOAA is proposing an expansion of the Sanctuary. The proposal includes expanding the federal government’s regulatory oversight of uses and activities (e.g., fishing, energy, recreation, commerce, etc.) within the expanded Sanctuary boundaries. The proposal departs from the Sanctuary’s purpose of protecting humpback whales that seasonally migrate to Hawaii and expands to regulating all species and habitat within its boundaries.

This additional regulatory oversight would add to existing federal regulatory requirements such as the Marine Mammal Protection Act, Migratory Bird Treaty Act, Endangered Species Act, Magnuson–Stevens Fishery Conservation and Management Act, Clean Water Act, and Coastal Zone Management Act, just to name a few. The proposed expansion also contemplates including state waters, which are currently managed under existing local and state regulations administered by state agencies such as the Department of Land and Natural Resources, Office of Planning, and Department of Health.
Source: Hawaii Humpback Whale Sanctuary
Depending on the kind of activity proposed in Hawaii’s waters, additional regulation by the Bureau of Ocean Energy Management (BOEM) and the Federal Energy Regulatory Commission (FERC) might also come into play. Most all of these existing regulations require an environmental assessment, and in most cases, an environmental impact statement under the National Environmental Policy Act (NEPA) and the Hawaii Environmental Policy Act (HEPA).

On January 18, 2011, President Obama released Executive Order 13563, Improving Regulation and Regulatory Review.  The “general principles” of the regulation sums up the policy best,
Our regulatory system must protect public health, welfare, safety, and our environment while promoting economic growth, innovation, competitiveness, and job creation. It must be based on the best available science. It must allow for public participation and an open exchange of ideas. It must promote predictability and reduce uncertainty. It must identify and use the best, most innovative, and least burdensome tools for achieving regulatory ends. It must take into account benefits and costs, both quantitative and qualitative. It must ensure that regulations are accessible, consistent, written in plain language, and easy to understand. It must measure, and seek to improve, the actual results of regulatory requirements.
Is the Sanctuary proposal consistent with the President’s executive order?  Some might argue that adding another layer of federal regulations over proposed ocean uses in Hawaii waters does not promote “economic growth, innovation, competitiveness, and job creation.”

Given the Sanctuary’s success and existing state and federal environmental regulations, does the Sanctuary’s expansive proposal apply the “least burdensome tools for achieving regulatory ends”?  Section 4 of the President’s Executive Order, entitled “Flexible Approaches,” provides:
Where relevant, feasible, and consistent with regulatory objectives, and to the extent permitted by law, each agency shall identify and consider regulatory approaches that reduce burdens and maintain flexibility and freedom of choice for the public. These approaches include warnings, appropriate default rules, and disclosure requirements as well as provision of information to the public in a form that is clear and intelligible.
Besides the expanded jurisdiction and regulatory authority proposed, are there other "regulatory approaches that reduce burdens and maintain flexibility and freedom of choice for the public"?

The Sanctuary’s proposal is in the last stages of the federal approval process. NOAA is accepting comments on its proposal. The deadline for public comments is June 19, 2015. Several public hearings will be scheduled in Hawaii starting on April 27, 2015. The full schedule is available at!documentDetail;D=NOAA-NOS-2015-0028-0002.

Ultimately, any expansion into state waters must be approved by the governor.