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Wednesday, June 20, 2012

State Bill to Curb Local Government Land Use Power Killed in Committee

• If AB 2226 Was Supposed to Be a Special Interest Favor— Measure May Have Backfired Big Time

BY ANNE SOBLE

Assembly Bill 2226, which seeks to advance changes to the state Administrative Procedure Act, failed to clear the Senate Judiciary Committee on Tuesday by a 3–2 vote. Although committee votes are not finalized until the next day, the measure is effectively defeated.
The bill is an attempt to require state, county, and city agencies to accept as fact that the person holding the deed to a piece of property is the owner.
The wording of the key proposed changes is that “a presumption exists that the owner of the legal title to property is presumed to be the owner of the full beneficial title” and “this bill would apply in any proceeding before a city, county, or city and county, if the title to, or ownership of, property is in question.”
Most of the media headlines bannered the potential for AB 2226 to enable David Evans, a musician who performs as The Edge, to eliminate one of several issues that resulted in the California Coastal Commission in June 2011 constraining major development he wants to do on his Malibu property—titular ownership and actual control of the land.
When the CCC ruled against Evans, his legion of attorneys and consultants stated that he was not going to give up on the project.
But if the bill’s author, Assemblyman Ben Hueso of San Diego, a Democrat, wants to do something to benefit Evans, which he has not publicly stated that he does, AB 2226 has major implications for business and government throughout the state that exceed any singular project, even one of Evans’ magnitude.
The formal sponsor of the bill is the Sacramento-based California Business Properties Association, which describes itself as “the recognized voice of the commercial, industrial, and retail real estate industries in California representing over 11,000 companies.”
Hueso had to know he would face CCC opposition in this effort because he served on the commission for two years while he was a member of the San Diego City Council in 2007-2008. News reports indicate his appointment to the panel was controversial. Some environmentalists said he didn't have savvy or sensitivity for environmental concerns. Hueso responded that his critics were elitists.
If the Assemblymember, who is vying in November for a seat in a newly redistricted area, and CBPA perceived the bill narrowly as a special interest favor, they might have not even considered that nearly every county and city in the state might take serious issue with its wording.
Los Angeles County Supervisor Zev Yaroslavsky and many other California officials indicated that they viewed the measure as a land use authority power grab that could have critically tied local government’s hands.
On May 29, Yaroslavsky’s colleagues got behind his motion stating that “by demanding that the county meet a more stringent evidentiary burden under the theory that local agencies should use the same standards as a court when making certain land use determinations, AB 2226 would make the county’s land use decisions far more technical and less accessible to members of the public, and would subject the county to increased risk of expensive litigation. It would also make it harder for the county to make fair and correct determinations when questions of legal access or the validity of easements arise.”
The motion concludes, “Finally, the bill would make it easier for unscrupulous developers to hide from the county their true ownership interests in a property as part of an effort to evade the county’s land use controls. While such deception is likely rare, the county should oppose legislation that could make it easier to subvert the county’s land-use process.”
When bolstered by private and NGO opponents to the Evans project, the chorus of nays on AB 2226 became loud and clear.
But the opponents of Evans’ projects made the news, while the local governments and agencies toiled behind the scenes and flexed their political muscle.
Representatives for Evans did not respond to inquiries and his case did not appear to be mentioned during Tuesday’s hearing, but it appears unlikely that Los Angeles attorney Stanley Lamport, who is on the CBPA board of directors and indicated he was testifying in support of AB 2226 for the powerful lobby, was unaware of the implications for Evans because Lamport is also a member of the Evans legal team.
Supporters of AB 2226, including the California Chamber of Commerce, lamented the extent of the powers of public entities to curb development, especially in a down economy.
The current president of the Malibu Chamber of Commerce is the permit expediter for the Evans project and attendees at a recent local business meeting have indicated that he appeared to tout the measure at that session.
In addition to Los Angeles County, Santa Barbara County and numerous other local governments, local land use planning groups and environmental organizations expressed opposition.
The vote on AB 2226 was along party lines—with the three Democrats opposing the bill, despite Hueso being a Democrat.

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