The May decision of state Senate Appropriations Chairman Anthony Portantino, D-La Cañada Flintridge, to kill a sweeping bill making it far easier for developers to build four- or five-story condominium and rental projects near mass transit led many disappointed pundits to complain that the Legislature still hadn’t done enough to spur housing construction. Senate Bill 50, by Sen. Scott Wiener, D-San Francisco, was seen as crucial to getting local communities to meet housing needs.

But officials and residents of the San Francisco suburb of San Bruno don’t want to hear that the state hasn’t done enough to pressure local governments. Thanks to a 2017 housing law – also crafted by Wiener – and another bill recently signed by Gov. Gavin Newsom, the city of 43,000 residents could eventually face fines of as much as $600,000 a month for failing to meet housing mandates, according to a report in the San Francisco Chronicle.

At issue is the San Bruno City Council’s July 10 decision to reject a 425-unit housing project proposed by the Signature Development Group. Zachary Olmstead, a deputy director at the state Department of Housing and Community Development, warned city officials in a letter last week that under the 2017 law, they were legally compelled to approve the project since it met all planning and zoning requirements without imperiling public safety or health. Olmstead noted that state law compels San Bruno to approve construction of 1,155 new housing units by 2023, but so far it had approved just 118 units – with none for low-income families.

Gov. Newsom sees lawsuits as way to fight local NIMBYs

The formal notice from the state clears the way for the Newsom administration to eventually sue San Bruno if it doesn’t reverse its decision on the project or otherwise approve new housing. The governor already made it clear he considers such lawsuits as a powerful tool to force housing construction, suing Huntington Beach in January because the Orange County city had made little progress toward the requirement that it add 533 low-income housing units by the end of 2021.

Huntington Beach officials, who believe that their state constitutional protections as a charter city are being violated, are suing the state over its housing edict.

San Bruno officials have reacted with much less defiance. That may be partly because as a general law city, San Bruno can’t claim constitutional cover. It’s also because there is far more support for the 425-unit project in San Bruno than there is for low-income housing in Huntington Beach.

According to the Chronicle, the Signature Development Group worked to firm up support for its project by accepting city officials’ request that its plan add 64 more low-income units and include a grocery store, among other concessions. But while four of the five council members backed the project, two of those members recused themselves because of perceived conflicts of interests, since they live within 1,000 feet of the proposed project site. That meant there weren’t the necessary three votes for approval.

Unlike Huntington Beach, San Bruno is conciliatory

Even before the state’s warning arrived, San Bruno City Manager Jovan Grogan posted a statement on the city’s website about the controversy late last month that acknowledged the City Council’s decision might not stand. 

Grogan’s conciliatory remarks presented a sharp contrast with Huntington Beach officials’ reaction to the state’s pressure. There, City Attorney Michael Gates blasted Newsom and suggested that Huntington Beach’s history as a Republican stronghold was why it was singled out first instead of the 50-plus other cities in California that also failed to meet state housing mandates.

Meanwhile, there were reports this week that the San Bruno City Council would meet soon to review its limited options. An opinion from the city’s legal advisers saying the two council members who recused themselves from conflicts could vote because of the unusual circumstances could be a tidy way out of the problem.

In a Feb. 4 letter to the city of Encinitas, state housing official Zachary Olmstead said the city needed to ”amend or invalidate” a 2013 ordinance approved by voters that said developers had to get voters’ blessing if they wanted to increase the density of their projects or make zoning changes. The letter noted that this law and other city actions had the effect of blocking Encinitas from meeting state requirements that it add 1,141 affordable units. The city of 63,000 has few such units now.

While the Encinitas City Council once seemed as strongly anti-growth as the public, state threats under the Jerry Brown administration led the council in 2016 and 2018 to seek voters’ approval of what’s known as a Housing Element plan, failing both times. The plan is a formal document submitted to the state that outlines what projects will be built so that the city meets its commitment to “accommodate the housing needs of Californians of all economic levels.”

Like Huntington Beach, Encinitas could face lawsuit

Encinitas is the only city in San Diego County without a similar state-approved plan. It is among the richest cities in the country. As of the latest Zillow data, the median average home price is $1.05 million, and the latest RentCafe data puts the average monthly rent at $2,056.

While the 2013 city law targeted by the state has already been suspended until 2021 by a Superior Court judge as being pre-empted by state law, that wasn’t viewed as going far enough by state officials. Olmstead’s letter cited the cumulative effect of a “complex set of regulations” that make it impossible for new projects that would help the city comply with state requirements.

If Encinitas officials don’t change course, the letter warned that state grants might be withheld, including for transportation projects funded by the Legislature’s 2017 increase in state vehicle taxes – and that the Newsom administration would ask Attorney General Xavier Becerra to sue the city for defying state law.

In a case involving the same issues, the state and the city of Huntington Beach filed lawsuits against each other last month in Orange County over whether Huntington Beach is breaking state housing laws. Becerra says 2017 legislation passed in Sacramento clearly empowers his office to sue to enforce plainly written state mandates. Huntington Beach City Attorney Michael Gates, however, says as a charter city – one with its own voter-approved de facto constitution – Huntington Beach has the authority to reject some state edicts that infringe on the city’s right to self-govern its “municipal affairs.”

Can charter cities claim exemption from mandates?

A League of California Cities primer on the rights of charter cities offers ammunition for Huntington Beach’s claim. It notes that with “some exceptions,” charter cities control land-use and zoning decisions. But a 1975 Loyola University of Los Angeles Law Review analysis cited by the league said ambiguous language in state law left it unclear precisely when charter city ordinances took precedent on land-use issues.

Encinitas is a general law city not eligible for charter city protections from some types of state interference. But if Encinitas officials proposed and city voters approved a charter city amendment in a special election, Encinitas could become a charter city within months.

Last year, after disputes with the state, officials in Menlo Park in Silicon Valley considered a quick push for charter city status before putting the issue on hold for the time being.

The state’s lawsuit – filed in Orange County Superior Court by Attorney General Xavier Becerra on Jan. 25 at Newsom’s behest – is the first to be filed under a 2017 law that allows the state to pursue legal action against local governments that don’t comply with their housing requirements.

The state wants to compel Huntington Beach to build 533 low-income housing units by Dec. 31, 2021, to meet its state quota. The city has only approved about 100 such units, according to the Southern California News Group.

City attorney sees H.B. singled out for its politics

Huntington Beach City Attorney Michael Gates maintains that as a charter city, his city should be able to set its own housing policies. He also hinted that there were political motives driving the actions of Democrats Newsom and Becerra. “It is noteworthy that Sacramento is suing only the city of Huntington Beach, while over 50 other cities in California have not yet met” their targets, he wrote in a statement. Huntington Beach has been a Republican redoubt for decades.

But state officials said they were motivated by Huntington Beach’s bad faith. Not only did the city refuse to provide a housing plan in compliance with state rules, in 2015, the City Council revised zoning rules to reduce by 2,400 the number of homes allowed in a neighborhood on the eastern edge of the city near Interstate 405.

While the state’s suit got far more attention, Huntington Beach’s suit – filed Jan. 17 in Orange County Superior Court – also involves high stakes. The city is targeting Senate Bill 35, the high-profile 2017 state law crafted by state Sen. Scott Wiener, D-San Francisco, that limits the ability of local governments to block housing projects that meet certain conditions, such as using union labor and including a portion of affordable units.

“It’s one thing to have more basic housing laws come out of Sacramento; it’s another to have Sacramento try to micromanage cities’ zoning and attempt to approve development projects in spite of the city,” Gates told the San Francisco Chronicle. “It’s really nothing more than the city trying to maintain its local control.”

Can charter cities defy state’s housing edicts?

Wiener blasted Huntington Beach in a statement given to his hometown paper. “Huntington Beach’s dismissive approach to housing – claiming there is no problem and that the state should just mind its own business – is Exhibit A for why we have a crisis in this state.”

When SB35 was discussed in 2017, there is no indication from a Nexis news search that Wiener or any lawmaker saw charter cities as being exempt from the bill’s requirements.

But lawyers for the League of California Cities have used language similar to that in Huntington Beach’s lawsuit to assert that there are limits to state power over charter cities. “The benefit of becoming a charter city is that charter cities have supreme authority over ‘municipal affairs,’” states the league’s legal primer on the topic. “In other words, a charter city’s law concerning a municipal affair will trump a state law governing the same topic.”

About one-quarter of California’s 478 cities have charter status. If Huntington Beach wins its challenge to SB35, general law cities that want to regain greater control over local planning could craft proposed charters and ask their voters to approve them under a process laid out in the state Constitution.

Lawmaker targets Uber’s self-driving vehicles in new legislation 

Good morning! TGIF. One lesson for the day: If you want to do something in the state, don’t try to get around the permitting process. 

It’s not enough that Uber killed its unpermitted, self-driving-vehicle pilot program in San Francisco just a week after it started; an assemblyman wants to squash any further attempts to test vehicles without a permit as well. 

Assemblyman Phil Ting, D-San Francisco, introduced legislation requiring the DMV to revoke registrations for self-driving vehicles in violation of the state’s Autonomous Vehicle Tester Program. The bill is a response to Uber, which last year began testing its vehicles without a permit, even picking up passengers, violating state regulations. And one of the vehicles ran a red light. 

Under Ting’s bill, law enforcement would have the authority to impound violating vehicles and the DMV could fine as much as $25,000 per vehicle per day. 

“I applaud our innovation economy and all the companies developing autonomous vehicle technology, but no community should face what we did in San Francisco,” Ting said in a statement. “The pursuit of innovation does not include a license to put innocent lives at risk.”

CalWatchdog has more. 

In other news:

• “The Coastal Commission’s stated concern that a proposed Huntington Beach desalination plant’s intake pipes pose a threat to small and microscopic plankton has been rebutted in a letter from three prominent California marine biologists.” CalWatchdog has more. 

• “Consumer Watchdog collects millions, but does it lower your insurance rates?” The Sacramento Bee has the story. 

• “Jerry Brown doesn’t want to give doctors a cut of the new tobacco tax money,” writes The Sacramento Bee. 

• “Days after Governor Jerry Brown called for an extension of California’s signature greenhouse gas reduction program and threatened to withhold money it generates until that happens, Assembly Democrats introduced legislation.” Capital Public Radio has more. 

Legislature:

• Assembly is in at 9 a.m. to vote on the appointment of Xavier Becerra as state attorney general.

Gov. Brown: 

• No public events announced. 

Tips: matt@calwatchdog.com

Follow us: @calwatchdog @mflemingterp

New follower: @ChrisLevinson

Anthony Koslow, Eric Miller and John McGowan — marine biologists at Scripps Institution of Oceanography in La Jolla — were responding to comments made at a Dec. 1 panel about ocean desalination in Ventura County by Tom Luster, the agency’s lead staffer on the desalination issue.

Luster actually had cited Koslow, Miller and McGowan’s research in arguing against open intakes given a 75 percent reduction in plankton off Southern California since the early 1970s. Citing the Scripps research Luster said it would be “hard to maintain and enhance marine life like the Coastal Act requires in a situation like this and so open intakes have a hurdle to overcome.”

In a sternly worded Dec. 29 rebuttal letter, Koslow, Miller and McGowan said Luster’s comment reflected “an inaccurate understanding of our research,” adding that their paper showed “many of the taxa are predominantly distributed offshore but share the same trend as more coastal taxa.” 

“It is therefore not reasonable to attribute this decline to the impact of coastal development or nearshore power-plant intakes,” the scientists wrote. “We ask that you refrain from repeating your Ventura forum comments, or anything similar, as it presents an almost exactly opposite conclusion to that obtained by our research.”

The Scripps researchers’ conclusion was that large-scale ocean forcing, not local coastal processes, are behind changes off the Southern California coast since the 1970s. They added that they hoped their science could “inform regulatory decisions wherever applicable, but the science needs to be interpreted correctly.”

In an emailed response, Luster said his point was that the decline in plankton populations had made it difficult for the new proposed project, which he said “would represent an additional adverse effect to meet the Coastal Act’s requirement to maintain and enhance marine life productivity.” But Miller — one of the Scripps researchers — reiterated that their study, which found that environmental forcing had reached tipping points in 1976 and 1989, “did not detect an influence of power plant cooling water intakes on nearshore fish populations.”

“It’s a mystery to me how my quote was misinterpreted,” Luster said, in an interview.

The question at issue is no mere academic matter. The future of the Huntington Beach desalination plant isn’t just about one proposed facility, but about the statewide future of a technology that turns saltwater into drinking water. That’s a particularly important question as the state begins to emerge from a long-running drought. Decisions by the commission and other state agencies on the Huntington Beach plant will help decide whether developers pursue a number potential plants up and down California’s coastline.

A desalination plant went online last year in the north San Diego County city of Carlsbad, but the makeup of the Coastal Commission and state regulations have changed since the approval process for that facility. As the Los Angeles Times reported, the state water board “directed desalination plants to install wells — offshore or on the beach — or another type of subsurface intake that the state says would naturally filter out marine organisms.” However, the plant’s supporters point out that state laws require subsurface intake technologies to be technically, economically, socially and environmentally feasible.

According to Poseidon Vice President Scott Maloni, the harm to plankton is minimal.

“There are estimated to be 115 billion larva in the source water of the desal plant,” he said. “Our estimated entrainment is 0.02 percent. Put another way, for every 10,000 fish eggs the desal plant is anticipated to entrain two. That means that 9,998 fish eggs are not at risk. This entire debate is over the potential loss of two out of 10,000 fish eggs in the desal plant’s source water, 99 percent of which die of natural mortality.”

The latest fracas over the Huntington Beach desalination plant bolsters Coastal Commission critics who believe the commission’s problems with the plan stem more from its hostility to growth than any real concerns about the fate of the food chain’s lowliest members.

Steven Greenhut is Western region director for the R Street Institute. Write to him at sgreenhut@rstreet.org.

At an event held Monday at the oceanfront facility 30 miles north of San Diego, speakers praised the wisdom of the San Diego County Water Authority in teaming with project developer Poseidon Water in building the plant over the objections of the Metropolitan Water District of Southern California. They said the desal plant should inspire construction of similar facilities across drought-plagued California.

But Poseidon’s bid to build a $900 million desal plant in Huntington Beach shows that the drought hasn’t necessarily changed anything in terms of making the legal and regulatory obstacle course easier to navigate. As the OC Weekly points out, Poseidon has been trying to secure support and approval for the Orange County project for at least as long as it pursued the Carlsbad project, first proposing a design for a desal plant there in 1998.

How far have company officials gotten? An August story in the Orange County Register noted that there is not even established acceptance of the proposed location of the facility:

The push to look at other locations is reflective of a perception among anti-Poseidon activists that the company has foisted its project upon an unwitting public, that it’s proposing a plant no one asked for, and that the plant isn’t even needed in these times of conservation and water-use cutbacks. Recycling technologies are improving, they point out, and there’s talk of storing storm-water for later use as drinking water.

 

Poseidon has good reasons for locating its proposed plant near the AES power plant in Huntington Beach. There’s already an open ocean intake pipe at the location, a pipe used to bring in seawater to cool down the power plant.

Surfrider group: Orange County project ‘the worst offender’

While the California Coastal Commission ended up siding with Poseidon in approving the Carlsbad plant, it’s not clear if the commission is prepared to do the same with the Huntington Beach proposal. Environmentalists assert the desalination plant poses significant risks to offshore marine life in Orange County. The Surfrider Foundation’s Newport Beach chapter is leading the charge, calling the proposed project the most damaging yet proposed in California:

There are a number of desalination technologies, and if it is not done properly, the seawater intake process can unnecessarily kill marine life.  Desalination also produces a highly concentrated brine discharge that degrades water quality and marine life habitat if not properly diluted. …

 

There are numerous ocean desalination facilities being proposed in California, all in various stages of planning or permitting. Many of the proposed facilities have not been designed to minimize degradation to marine habitats and water quality, nor are the proposals being thoroughly evaluated by any government agency for their cumulative impacts statewide. The California State Water Resources Control Board is currently in the process of collecting scientific data on the adverse impacts of ocean desalination, and how best to minimize those impacts. But some proposals are moving forward without having adopted the recommendations of the science community – Poseidon’s project proposal is the worst offender.

Nevertheless, the project has bipartisan political support, and has begun to make the sort of process gains that Poseidon did with its Carlsbad proposal several years ago. The Los Angeles Times has details:

In May, the board of the Orange County Water District approved a non-binding term sheet with Poseidon to negotiate the price of water from the plant and to determine who would be responsible for various aspects of the project.

 

[Poseidon Vice President Scott] Maloni said he expects the Orange County district to negotiate a 50-year deal with Poseidon should the project be approved by the California Coastal Commission sometime in the spring.

 

A key part of the term sheet is that Poseidon must prove to the Orange County district that the Carlsbad plant can operate without a hitch for 90 consecutive days.

 

“We’re probably a year away from executing a final water purchase agreement [with the Orange County Water District],” Maloni said. “Carlsbad would be in operation for a good amount of time.”

That is happening in Huntington Beach, where, reported the Orange County Register:

the council took the first step to repeal the ban on single-use plastic bags, saying there’s no evidence that it helps the environment and that voters should decide whether to ban the bags.

The council voted 6-1, with Mayor Jill Hardy dissenting, to have city staff draft an ordinance repealing the ban and get a $5,000 environmental impact report on what the repercussions could be, if any, without the ban.

That could be a good omen for the effort to repeal a statewide ban enacted by the Legislature, but currently held up pending the initiative’s fate.

I live in Huntington Beach and went to the local grocery store Thursday and asked for plastic bags. “I’ve been asked that 19 times today,” the checkout clerk replied. “But No. We don’t have them yet.”

I’m looking forward to that day. Then I’ll see fewer cases of an enviro-person bringing in a germ-laden “reusable” bag and contaminating the whole store.

I’m pretty resistant to colds and hadn’t had one for two years until last fall. Then I got three in a row. Was it from the contaminated enviro-bags? It’s impossible to tell.

But…

Sick bags

USA Today reported:

PALM SPRINGS, Calif. — Jamie Norton considered himself an early adopter of reusable shopping bag, keeping them in the trunk of his car so they’re on hand whenever he stops for groceries.

But washing the bags wasn’t part of the routine.

“If it gets too dirty, I just toss it out,” Norton, 61, said as he walked out of Jensen’s grocery store here with one of his bags full of food. “I have never washed a reusable bag.”

Research shows the vast majority of shoppers are like Norton. A 2011 study from scientists at the University of Arizona and Loma Linda University found only 3% of shoppers with multi-use bags said they regularly washed them. The same study found bacteria in 99% of bags tested; half carried coliform bacteria while 8% carried E. coli, an indicator of fecal contamination.

“I classify them as pretty dirty things, like the bottom of your shoes,” said Ryan Sinclair of the Loma Linda University School of Public Health, a co-author of the study.

He is finalizing another study he hopes to publish soon looking at how pathogens spread through grocery stores with the help of reusable bags. The study, conducted at a central California grocery store in early 2013, involved spraying bags with a bacteria not harmful to humans but transported in a similar way to norovirus, a leading cause of gastrointestinal disease linked to more than 19 million illnesses each year in the United States.

The tracer bacteria was detected in high concentrations on shopping carts, at the checkout counter and on food items shoppers had touched but kept on the shelf.

Sinclair said the contamination cycle often began right after shoppers entered the store and placed their bags in the bottom or the baby carrier of a shopping cart, two places notorious for germs.

As my heavily accented Russian teacher used to say back at the Defense Language School in Monterey when an obnoxious Navy student acted up, “That’s dsggguzting!”

By John Seiler

The only reason anyone in his right mind lives in California and pays massive high taxes is for the great weather.

But the weather has been terrible. I live half a mile from the beach in Huntington Beach. Unlike Gov. Jerry Brown and other rich folks, I don’t have air conditioning. Here’s what I’m putting up with at 2:30 pm:

And it looks like we’re going to have thunderstorms tonight.

Hot, muggy, stormy. That’s what I left in Michigan! Where the taxes are lower and you can get a decent house in a great neighborhood for $100,000. And Michigan’s unemployment rate, 9 percent, now is much lower than California’s staggering 10.7 percent.

Here’s the weather in my home town at 5:30 Michigan time (2:30 California). It doesn’t start getting cooler there for about an hour, so this is an apt comparison:

For days like this, all state taxes should be canceled. No sales taxes. And income and property taxes should be cut by 1/365th for each day the weather is horrible.

If they don’t, I’m calling U-Haul.

Today, January 17, the Year of Our Lord 2011, in Huntington Beach it was Fahrenheit 78 degrees, the most beautiful day I’ve ever seen. It was July in January.

That’s why we Californians put up with the sky-high taxes, the exorbitant housing prices (from government-caused shortages), the most incompetent and repressive state government in the Union, a state Legislature out of touch with everyone except those who bribe it with campaign contributions, and a steroid-pumped Austrian governor who “terminated” the state.

I don’t care about anything else, I’m not leaving!

New York, Illinois and Ohio are nearly as badly governed — with snow.

Florida is warm and has no income tax, but humid and buggy.

California — if  you can make here, you won’t want to make it anywhere else!

Jan. 17, 2011