Colantuono, Highsmith, Whatley, PC logoThe Legislature continues to focus on housing and affordable housing development, despite cities’ and counties’ defense of local control. Among 20-odd housing bills, new legislation effective this year expands Senate Bill 35’s streamlined process for in-fill housing projects, expands density bonuses, and adds a new CEQA exemption. Higher education and religious institutions can also now build affordable housing without a zone change.

With 2017’s Senate Bill 35, the Legislature streamlined approval for two-or-more-unit residential or mixed-use in-fill projects in jurisdictions failing to make sufficient progress towards their regional housing needs assessment goals for affordable housing production. Projects must meet affordability requirements and the city’s or county’s objective development standards, and pay prevailing wages. Senate Bill 423 (Wiener, D-San Francisco) extends its sunset to 2036 and expands it to any jurisdiction which did not adopt a substantially compliant Housing Element—as determined by the state Department of Housing and Community Development. The bill also expands SB 35 to parts of the Coastal Zone, limits SB 35’s skilled and trained workforce (i.e., union labor) requirement, and limits project review under objective design standards to staff-level reviews, without hearings before planning commissions, city councils and boards of supervisors.

New density bonus legislation, Assembly Bill 1287 (Alvarez, D-San Diego), gives new, stackable density bonuses to qualifying projects with at least a 50% density bonus, if the developer provides extra very-low income or moderate-income units — allowing up to a 100% bonus (i.e., double the density otherwise permitted). The bill also allows those extra moderate-income affordable units to be rentals.

AB 761 (Alvarez, D-San Diego) creates a new CEQA exemption for certain 100% affordable housing projects. Projects must pay prevailing (i.e., union) wages, meet labor standards, and develop infill sites or sites near transit or such amenities as schools or grocery stores. The exemption covers project approval, but also pre-approval actions, such as leasing land.

SB 684 (Caballero, D-Merced) requires streamlined approval for ten units or fewer “small lot” developments or five acre or smaller urban infill sites zoned for multifamily development, with the average unit size only up to 1,750 square feet and a minimum lot size of 600 square feet. There are no minimum affordability or labor requirements, although a city can still enforce its inclusionary housing ordinance, if applicable.

Adding to the Legislature’s broad approach to housing, Senate Bill 4 makes certain housing projects by-right uses on lands owned by independent higher education and religious institutions, despite zoning. Nicknamed the “yes in God’s backyard” bill, it requires qualifying projects to develop infill sites, provide 100% affordable units, pay prevailing wages and meet labor standards (again, use union labor), and not be in defined sensitive locations, applying similar standards as 2017’s SB 35. Cities and counties can still enforce objective development standards, but cannot require a zoning or General Plan amendment to allow residential uses.

Several bills favor adaptive reuse projects. AB 1490 (Lee, D-Fremont) streamlines approval of qualifying 100% lower income affordable projects, with at least 50% of the units for very-low income households, to repurpose existing residential or commercial buildings that have existing temporary dwelling units, e.g. a motel or hotel, and that meet other infill site criteria. SB 91 (Umberg, D-Santa Ana) extends an existing CEQA exemption for motel and hotel conversions into supportive or transition housing indefinitely.

California’s housing affordability crisis continues and, so long as it is top-of-mind for California voters the Legislature will continue to adopt new laws attempting to solve the problem. As ever, eroding local control is easier than building housing, so this legislative trend can be expected to continue.

Authored by Matthew T. Summers, Esq.

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