Amended  IN  Assembly  August 03, 2020
Amended  IN  Assembly  May 18, 2020
Amended  IN  Assembly  May 04, 2020

CALIFORNIA LEGISLATURE— 2019–2020 REGULAR SESSION

Assembly Bill
No. 3234

Introduced by Assembly Member Gloria Ting

February 21, 2020

An act to amend Sections 66411.1, 66426, 66428, and 66474 of, and to add Sections 66462.1 and 66474.11 to, the Government Code, and to add Section 21080.17.5 to the Public Resources Code, relating to land use. Section 3055 of, and to add Chapter 2.96 (commencing with Section 1001.95) to Title 6 of Part 2 of, the Penal Code, relating to public safety.


LEGISLATIVE COUNSEL'S DIGEST


AB 3234, as amended, Gloria Ting. Subdivision Map Act. Public Safety.
Existing law authorizes a county to establish a pretrial diversion program for defendants who have been charged with a misdemeanor offense and authorizes other diversion programs, including for defendants with cognitive developmental disabilities, defendants in nonviolent drug cases, and traffic violations.
This bill would authorize a judge in the superior court in which a misdemeanor is being prosecuted to offer misdemeanor diversion to a defendant over the objection of a prosecuting attorney. The bill would authorize the judge to continue a diverted case for a period not to exceed 24 months and order the defendant to comply with the terms, conditions, and programs the judge deems appropriate based on the defendant’s specific situation. The bill would require the judge, at the end of the diversion period and if the defendant complies with all required terms, conditions, and programs, to dismiss the action against the defendant, and would deem the arrest upon which diversion was imposed to have never occurred, as specified. The bill would authorize the court to end the diversion and order resumption of the criminal proceedings if the court finds that the defendant is not complying with the terms and conditions of diversion.
Existing law establishes the Elderly Parole Program for the purpose of reviewing the parole suitability of inmates who are 60 years of age or older and who have served a minimum of 25 years of continuous incarceration on their sentence.
This bill would modify the minimum age limitation for that program to 50 years of age and instead require the inmate to have served a minimum of 20 years of continuous incarceration in order to be eligible for that program.

Existing law, the Subdivision Map Act, vests the authority to regulate and control the design and improvement of subdivisions by the legislative body of a local agency and sets forth procedures governing the local agency’s processing, approval, conditional approval or disapproval, and filing of tentative, final, and parcel maps, and the modification of those maps.

Existing law, the Housing Accountability Act, prohibits a local agency from disapproving, or conditioning approval in a manner that renders infeasible, a housing development project, as defined for purposes of the act, for very low, low-, or moderate-income households or an emergency shelter unless the local agency makes specified written findings based on a preponderance of the evidence in the record.

This bill would specify that no tentative or final map shall be required for the creation of a parcel or parcels necessary for the development of a small lot subdivision for a housing development project, as defined in the Housing Accountability Act, that meets specified criteria, including that the site is an infill site, as defined, is located in an urbanized area or urban cluster, as defined, and the proposed site to be subdivided is no larger than 5 acres, among other requirements. The bill would authorize a city, county, or city and county to provide by ordinance for the creation of a small lot subdivision if that ordinance meets the same requirements or requires smaller lots, less parking, or greater density than those requirements.

Existing law limits the regulations that may be imposed upon a subdivision consisting of 4 or fewer lots by a local ordinance that requires improvements to the dedication of rights-of-way, easements, and the construction of reasonable offsite and onsite improvements of the parcels being created.

This bill would also apply these limitations on regulations to small lot subdivisions that meet the requirements of a local small lot subdivision ordinance authorized by this bill.

Existing law requires the legislative body of a city and county to deny approval of a tentative map or parcel map for which a tentative map was not required if it makes specified findings, including that the proposed map is not consistent with applicable general and specific plans, as specified.

This bill would make those provisions inapplicable when a subdivision is for a housing development project, as defined, and would instead require the legislative body to approve a tentative map or parcel map for which a tentative map was not required if substantial evidence in the record supports making one of specified findings, including that the proposed map is consistent with objective standards contained in applicable general and specific plans and all applicable zoning and design review standards, as specified.

Existing law, the California Environmental Quality Act (CEQA), requires a local agency to prepare, or cause to be prepared, and certify the completion of, an environmental impact report on a project that it proposed to carry out or approve that may have a significant effect on the environment or to adopt a negative declaration if it finds that the project will not have that effect.

This bill would exempt from CEQA the adoption of an ordinance by a city or county to implement the provisions of the bill relating to small lot subdivisions.

Because this bill would impose additional duties on local agencies, the bill would impose a state-mandated local program.

The California Constitution requires the state to reimburse local agencies and school districts for certain costs mandated by the state. Statutory provisions establish procedures for making that reimbursement.

This bill would provide that no reimbursement is required by this act for a specified reason.

Vote: MAJORITY   Appropriation: NO   Fiscal Committee: YES   Local Program: YESNO  

The people of the State of California do enact as follows:


SECTION 1.

 Chapter 2.96 (commencing with Section 1001.95) is added to Title 6 of Part 2 of the Penal Code, to read:
CHAPTER  2.96. Court Initiated Misdemeanor Diversion

1001.95.
 (a) A judge in the superior court in which a misdemeanor is being prosecuted may, at the judge’s discretion, and over the objection of a prosecuting attorney, offer diversion to a defendant pursuant to these provisions.
(b) A judge may continue a diverted case for a period not to exceed 24 months and order the defendant to comply with terms, conditions, or programs that the judge deems appropriate based on the defendant’s specific situation.
(c) If the defendant has complied with the imposed terms and conditions, at the end of the period of diversion, the judge shall dismiss the action against the defendant.
(d) If it appears to the court that the defendant is not complying with the terms and conditions of diversion, after notice to the defendant, the court shall hold a hearing to determine whether the criminal proceedings should be reinstituted. If the court finds that the defendant has not complied with the terms and conditions of diversion, the court may end the diversion and order resumption of the criminal proceedings.

1001.96.
 A defendant whose sentence is deferred pursuant to this chapter shall be required to complete all of the following in order to have their plea stricken:
(a) Complete all conditions ordered by the court.
(b) Make full restitution. However, a defendant’s inability to pay restitution due to indigence shall not be grounds for denial of diversion or a finding that the defendant has failed to comply with the terms of diversion.
(c) Comply with a court-ordered protective order, stay-away order, or order prohibiting firearm possession, if applicable.

1001.97.
 (a) Upon successful completion of the terms, conditions, or programs ordered by the court pursuant to Section 1001.95, the arrest upon which diversion was imposed shall be deemed to have never occurred. The defendant may indicate in response to any question concerning their prior criminal record that they were not arrested. A record pertaining to an arrest resulting in successful completion of the terms, conditions, or programs ordered by the court shall not, without the defendant’s consent, be used in any way that could result in the denial of any employment, benefit, license, or certificate.
(b) The defendant shall be advised that, regardless of their successful completion of diversion, the arrest upon which the diversion was based may be disclosed by the Department of Justice in response to a peace officer application request and that, notwithstanding subdivision (a), this section does not relieve them of the obligation to disclose the arrest in response to a direct question contained in a questionnaire or application for a position as a peace officer, as defined in Section 830.

SEC. 2.

 Section 3055 of the Penal Code is amended to read:

3055.
 (a) The Elderly Parole Program is hereby established, to be administered by the Board of Parole Hearing, Hearings, for purposes of reviewing the parole suitability of any inmate who is 60 50 years of age or older and has served a minimum of 25 20 years of continuous incarceration on his or her the inmate’s current sentence, serving either a determinate or indeterminate sentence.
(b) (1) For purposes of this code, the term “elderly parole eligible date” means the date on which an inmate who qualifies as an elderly offender is eligible for release from prison.
(2) For purposes of this section, “incarceration” means detention in a city or county jail, local juvenile facility, a mental health facility, a Division of Juvenile Justice facility, or a Department of Corrections and Rehabilitation facility.
(c) When considering the release of an inmate specified by subdivision (a) pursuant to Section 3041, the board shall give special consideration to whether age, time served, and diminished physical condition, if any, have reduced the elderly inmate’s risk for future violence.
(d) When scheduling a parole suitability hearing date pursuant to subdivision (b) of Section 3041.5 or when considering a request for an advance hearing pursuant to subdivision (d) of Section 3041.5, the board shall consider whether the inmate meets or will meet the criteria specified in subdivision (a).
(e) An individual who is subject to this section shall meet with the board pursuant to subdivision (a) of Section 3041. If an inmate is found suitable for parole under the Elderly Parole Program, the board shall release the individual on parole as provided in Section 3041.
(f) If parole is not granted, the board shall set the time for a subsequent elderly parole hearing in accordance with paragraph (3) of subdivision (b) of Section 3041.5. No subsequent elderly parole hearing shall be necessary if the offender is released pursuant to other statutory provisions prior to the date of the subsequent hearing.
(g) This section shall does not apply to cases in which sentencing occurs pursuant to Section 1170.12, subdivisions (b) to (i), inclusive, of Section 667, or in cases which an individual was sentenced to life in prison without the possibility of parole or death.
(h) This section does not apply if the person was convicted of first-degree murder if the victim was a peace officer, as defined in Section 830.1, 830.2, 830.3, 830.31, 830.32, 830.33, 830.34, 830.35, 830.36, 830.37, 830.4, 830.5, 830.6, 830.10, 830.11, or 830.12, who was killed while engaged in the performance of his or her their duties, and the individual knew, or reasonably should have known, that the victim was a peace officer engaged in the performance of his or her their duties, or the victim was a peace officer or a former peace officer under any of the above-enumerated sections, and was intentionally killed in retaliation for the performance of his or her their official duties.
(i) This section does not alter the rights of victims at parole hearings.
(j) By December 31, 2022, the board shall complete all elderly parole hearings for individuals who were sentenced to determinate or indeterminate terms and who, on the effective date of the bill that added this subdivision, are or will be entitled to have their parole suitability considered at an elderly parole hearing before January 1, 2023.

SECTION 1.Section 66411.1 of the Government Code is amended to read:
66411.1.

(a)Notwithstanding Section 66428, whenever a local ordinance requires improvements for a division of land which is not a subdivision of five or more lots or a small lot subdivision that meets the requirements of a local ordinance implementing the provisions of Section 66462.1, the regulations shall be limited to the dedication of rights-of-way, easements, and the construction of reasonable offsite and onsite improvements for the parcels being created. Requirements for the construction of offsite and onsite improvements shall be noticed by a statement on the parcel map, on the instrument evidencing the waiver of the parcel map, or by a separate instrument and shall be recorded on, concurrently with, or prior to the parcel map or instrument of waiver of a parcel map being filed for record.

(b)Notwithstanding Section 66428, fulfillment of the construction requirements shall not be required until the time a permit or other grant of approval for development of the parcel is issued by the local agency or, where provided by local ordinances, until the time the construction of the improvements is required pursuant to an agreement between the subdivider and the local agency, except that in the absence of an agreement, a local agency may require fulfillment of the construction requirements within a reasonable time following approval of the parcel map and prior to the issuance of a permit or other grant of approval for the development of a parcel upon a finding by the local agency that fulfillment of the construction requirements is necessary for either of the following reasons:

(1)The public health and safety.

(2)The required construction is a necessary prerequisite to the orderly development of the surrounding area.

SEC. 2.Section 66426 of the Government Code is amended to read:
66426.

A tentative and final map shall be required for all subdivisions creating five or more parcels, five or more condominiums as defined in Section 783 of the Civil Code, a community apartment project containing five or more parcels, or for the conversion of a dwelling to a stock cooperative containing five or more dwelling units, except where any one of the following occurs:

(a)The land before division contains less than five acres, each parcel created by the division abuts upon a maintained public street or highway, and no dedications or improvements are required by the legislative body.

(b)Each parcel created by the division has a gross area of 20 acres or more and has an approved access to a maintained public street or highway.

(c)The land consists of a parcel or parcels of land having approved access to a public street or highway, which comprises part of a tract of land zoned for industrial or commercial development, and which has the approval of the governing body as to street alignments and widths.

(d)Each parcel created by the division has a gross area of not less than 40 acres or is not less than a quarter of a quarter section.

(e)The land being subdivided is solely for the creation of an environmental subdivision pursuant to Section 66418.2.

(f)The land is being subdivided to create a small lot subdivision that meets the requirements of a local ordinance implementing the provisions of Section 66462.1.

(g)A parcel map shall be required for those subdivisions described in subdivisions (a), (b), (c), (d), (e), and (f).

SEC. 3.Section 66428 of the Government Code is amended to read:
66428.

(a)Except for a parcel map created in connection with a small lot subdivision that meets the requirements of a local ordinance implementing the provisions of Section 66462.1, a local ordinance may require a tentative map where a parcel map is required by this chapter. A parcel map shall be required for subdivisions as to which a final or parcel map is not otherwise required by this chapter, unless the preparation of the parcel map is waived by local ordinance as provided in this section. A parcel map shall not be required for either of the following:

(1)Subdivisions of a portion of the operating right-of-way of a railroad corporation, as defined by Section 230 of the Public Utilities Code, that are created by short-term leases (terminable by either party on not more than 30 days’ notice in writing).

(2)Land conveyed to or from a governmental agency, public entity, public utility, or for land conveyed to a subsidiary of a public utility for conveyance to that public utility for rights-of-way, unless a showing is made in individual cases, upon substantial evidence, that public policy necessitates a parcel map. For purposes of this subdivision, land conveyed to or from a governmental agency shall include a fee interest, a leasehold interest, an easement, or a license.

(b)A local agency shall, by ordinance, provide a procedure for waiving the requirement for a parcel map, imposed by this division, including the requirements for a parcel map imposed by Section 66426. The procedure may include provisions for waiving the requirement for a tentative and final map for the construction of a condominium project on a single parcel. The ordinance shall require a finding by the legislative body or advisory agency, that the proposed division of land complies with requirements established by this division or local ordinance enacted pursuant thereto as to area, improvement and design, floodwater drainage control, appropriate improved public roads, sanitary disposal facilities, water supply availability, environmental protection, and other requirements of this division or local ordinance enacted pursuant thereto. In any case, where the requirement for a parcel map is waived by local ordinance pursuant to this section, a tentative map may be required by local ordinance.

(c)If a local ordinance does not require a tentative map where a parcel map is required by this division, the subdivider shall have the option of submitting a tentative map, or if they desire to obtain the rights conferred by Chapter 4.5 (commencing with Section 66498.1), a vesting tentative map.

(d)A parcel map created in connection with a small lot subdivision that meets the requirements of a local ordinance implementing the provisions of Section 66462.1 shall be considered and approved or rejected through a ministerial process without discretionary review or a hearing.

SEC. 4.Section 66462.1 is added to the Government Code, to read:
66462.1.

(a)No tentative or final map shall be required for the creation of a parcel or parcels necessary for the development of a small lot subdivision for a housing development project, as that term is defined in Section 65589.5, that meets all of the following criteria:

(1)The site is an infill site, which means that it is located within an urban area that has been previously developed, or on a vacant site where at least 75 percent of the perimeter of the site adjoins, or is separated only by an improved public right-of-way from, parcels that are developed with qualified urban uses.

(2)The site is located in an incorporated area that is in an urbanized area or urban cluster, as designated by the United States Census Bureau, or an unincorporated area that is within a census designated place, based on the 2013-2017 American Community Survey 5-year Estimates, and that is also wholly located within the boundaries of an urbanized area, as designated by the United States Census Bureau.

(3)The site has a general plan designation or is located in a zone that permits or conditionally permits single-family dwelling units, multifamily dwelling units, or mixed-use developments with a residential component.

(4)The proposed site to be subdivided is no larger than five acres, and no parcel within the site has been created within the past 10 years unless the parcel was created as a result of the plan of a redevelopment agency.

(5)The minimum lot size resulting from the small lot subdivision shall be no smaller than 1,200 square feet, and the maximum lot size shall be no larger than 2,000 square feet. However, a local agency may authorize a minimum lot size smaller than 1,200 square feet by ordinance.

(6)No more than one parking space per parcel, either covered or uncovered, may be required.

(7)The development of a housing development project on the proposed site to be subdivided would not require the demolition or alteration of any of the following types of housing:

(A)Housing that is subject to a recorded covenant, ordinance, or law that restricts rents to levels affordable to persons and families of moderate, low, or very low income.

(B)Housing that is subject to any form of rent or price control through a public entity’s valid exercise of its police power.

(C)Housing occupied by tenants within the seven years preceding the date of the application, including housing that has been demolished or that tenants have vacated before the application for a development permit.

(D)A parcel or parcels on which an owner of residential real property has exercised their rights under Chapter 12.75 (commencing with Section 7060) of Division 7 of Title 1 to withdraw accommodations from rent or lease within 15 years before the date that the development proponent submits an application.

(8)The proposed site to be subdivided does not contain a historic structure that was placed on a national, state, or local historic register or tribal cultural resources that have been identified pursuant to the city, county, or city and county’s consultation with a California Native American tribe undertaken in compliance with the requirements of Chapter 905 of the Statutes of 2004 or Section 21080.3.1 of the Public Resources Code.

(b)(1)A city, county, or city and county may, by ordinance, provide for the creation of a small lot subdivision, which shall be deemed to meet the requirements of this section if the local ordinance either meets the requirements of subdivision (a) or requires smaller lots, less parking, or greater density than the requirements in subdivision (a).

(2)Any ordinance adopted pursuant to paragraph (1) shall provide for the concurrent processing of grading permits, building permits, and other approvals necessary to commence construction upon approval of the parcel map.

(c)Nothing in this section preempts or otherwise prohibits a city, county, or city and county from applying dedication, exaction, or production requirements related to the need for below market rate housing.

(d)Nothing in this section affects the ability of a project to apply for or receive a density bonus, incentives or concessions, waivers, or parking reductions pursuant to Section 65915.

(e)For purposes of this section, “tenant” shall mean a person who does not own the property where they reside, including residential situations that are any of the following:

(1)Residential real property rented by the person under a long-term lease.

(2)A single-room occupancy unit.

(3)An accessory dwelling unit that is not subject to, or does not have a valid permit in accordance with, an ordinance adopted by a local agency pursuant to Section 65852.2.

(4)A residential motel.

(5)A mobilehome park, as governed under the Mobilehome Residency Law (Chapter 2.5 (commencing with Section 798) of Title 2 of Part 2 of Division 2 of the Civil Code), the Recreational Vehicle Park Occupancy Law (Chapter 2.6 (commencing with Section 799.20) of Title 2 of Part 2 of Division 2 of the Civil Code), the Mobilehome Parks Act (Part 2.1 (commencing with Section 18200) of Division 13 of the Health and Safety Code), or the Special Occupancy Parks Act (Part 2.3 (commencing with Section 18860) of Division 13 of the Health and Safety Code).

(6)Any other type of residential property that is not owned by the person or a member of the person’s household, for which the person or a member of the person’s household provides payments on a regular schedule in exchange for the right to occupy the residential property.

SEC. 5.Section 66474 of the Government Code is amended to read:
66474.

Unless the subdivision is for a housing development project as defined in Section 65589.5, a legislative body of a city or county shall deny approval of a tentative map, or a parcel map for which a tentative map was not required, if it makes any of the following findings:

(a)That the proposed map is not consistent with applicable general and specific plans as specified in Section 65451.

(b)That the design or improvement of the proposed subdivision is not consistent with applicable general and specific plans.

(c)That the site is not physically suitable for the type of development.

(d)That the site is not physically suitable for the proposed density of development.

(e)That the design of the subdivision or the proposed improvements are likely to cause substantial environmental damage or substantially and avoidably injure fish or wildlife or their habitat.

(f)That the design of the subdivision or type of improvements is likely to cause serious public health problems.

(g)That the design of the subdivision or the type of improvements will conflict with easements, acquired by the public at large, for access through or use of, property within the proposed subdivision. In this connection, the governing body may approve a map if it finds that alternate easements, for access or for use, will be provided, and that these will be substantially equivalent to ones previously acquired by the public. This subsection shall apply only to easements of record or to easements established by judgment of a court of competent jurisdiction and no authority is hereby granted to a legislative body to determine that the public at large has acquired easements for access through or use of property within the proposed subdivision.

SEC. 6.Section 66474.11 is added to the Government Code, to read:
66474.11.

(a)(1)When a subdivision is for a housing development project as defined in Section 65589.5, a legislative body of a city or county shall approve a tentative map, or a parcel map for which a tentative map was not required, if substantial evidence in the record supports making any of the following findings:

(A)That the proposed map is consistent with objective standards contained in applicable general and specific plans, as specified in Section 65451, and all applicable zoning and design review standards.

(B)That the design or improvement of the proposed subdivision is consistent with objective standards contained in applicable general and specific plans, and all applicable zoning and design review standards.

(C)That the design of the subdivision or the proposed improvements would not result in a specific, adverse impact upon the public health or safety, as defined in Section 65589.5, or feasible methods can be applied to mitigate or avoid the specific, adverse impact.

(D)That the design of the subdivision or the type of improvements will not conflict with easements, acquired by the public at large, for access through or use of, property within the proposed subdivision. In this connection, the governing body may approve a map if it finds that alternate easements, for access or for use, will be provided, and that these will be substantially equivalent to ones previously acquired by the public.

(2)This subdivision shall apply only to easements of record or to easements established by judgment of a court of competent jurisdiction and no authority is hereby granted to a legislative body to determine that the public at large has acquired easements for access through or use of property within the proposed subdivision.

(b)For purposes of this section, “objective” means involving no personal or subjective judgment by a public official and being uniformly verifiable by reference to an external and uniform benchmark or criterion available and knowable by both the development applicant or proponent and the public official.

SEC. 7.Section 21080.17.5 is added to the Public Resources Code, to read:
21080.17.5.

This division does not apply to the adoption of an ordinance by a city or county to implement the provisions of Section 66462.1 of the Government Code.

SEC. 8.

No reimbursement is required by this act pursuant to Section 6 of Article XIII B of the California Constitution because a local agency or school district has the authority to levy service charges, fees, or assessments sufficient to pay for the program or level of service mandated by this act, within the meaning of Section 17556 of the Government Code.