Local governments play an important role in the housing development process by setting the framework so homes can be built. Under California law, cities and counties are responsible for the planning, zoning and approval of new housing. This is meant to be a transparent process with input from residents, requisite environmental reviews and documents, and approving projects consistent with approved plans.
Local officials have three roles in land use matters:
First, in their legislative role, they plan for development by adopting the general plan or enacting local zoning ordinances to support the implementation of the general plan.
Second, in their quasi-judicial capacity, they review development proposals, such as affordable housing projects, for consistency with adopted plans and ordinances.
Finally, in their enforcement role, they implement their vision for development by assuring that approved projects comply with the applicable laws and conditions imposed by their adopted plans.
In each instance, a number of legal and procedural requirements apply to local land use and planning decisions. These include due process, public disclosure, and legal determinations and documentation. In addition, there are several important legal provisions that apply specifically to affordable housing proposals. These issues are described below.
Law and common practice provide various ways local officials can engage and involve interested members of the public in local affordable housing decisions. Public hearings are perhaps the most common and well-known method and are often required by law, but there are a number of additional ways that local governments can engage with, gather input from and provide updates to residents.
The Institute for Local Government offers several resources that outline legal requirements and best practices for local agencies making land use, planning and development decisions.
Property owners and project applicants are entitled to “due process” when an agency acts on a general plan amendment, specific plan, zoning ordinance, subdivision, or other discretionary approvals in the land use context. This typically means providing property owners, applicants and neighboring and nearby properties notice of the impending action and an opportunity to be heard before taking the action. Local agencies can meet this requirement by complying with the state laws that delineate specific notice and hearing procedures.2
The legal standards are slightly different depending on whether the agency is acting in a legislative or quasi-judicial capacity. But the essence of the requirements is the same: 1) affected parties must receive adequate notice of all hearings (written in a way that can be reasonably understood); and 2) they must have a fair opportunity to air concerns or rebut evidence presented to local officials.
In California, the procedural requirements go farther. Several statutes require specific forms of public notice and public involvement. For example, the Brown Act, the public notice and publishing requirements in the Planning and Zoning Law, and the review and comment process in the California Environmental Quality Act (CEQA) all bestow residents with specific public notice and participation rights.
Taken together, these requirements provide multiple opportunities for local agencies to receive public participation at every stage of the process of considering housing and other land use proposals. However, fully realizing these opportunities relies on effective implementation at the local level.
The formal planning process includes elements in addition to due process requirements that can help the public effectively participate in land use decisions. In particular, local agencies have legal obligations in two areas that facilitate informed public engagement:
Public disclosure, and
Determinations and documentation.
2See Cal. Gov’t Code § 65589.5.
Productive community participation requires an informed public. It is difficult to comment on housing or other land use proposals if basic information about the project and its impacts is not made public. California requires that local agencies disclose both issues of process and substance when making land use and development decisions.
Key procedural disclosure requirements that facilitate public participation in land use decisions include the following:
Local agencies must issue notices to the public regarding requests for land use entitlements and disclose what specific actions have been requested. For example, the public notice would specify if the action requested is a general plan amendment, rezoning, zoning variance, or subdivision approval.
Quasi-judicial decisions, such as project approvals, require a formal hearing where evidence is taken. The decision-maker (usually the planning commission or zoning administrator) must apply legal standards or policy criteria to specific proposals and make determinations. Applicants or members of the public may appeal decisions made by appointed officials to the governing body, which must then hold a public hearing on the appeal.
In some cases, the appointed official or body acts only in an advisory capacity and makes a recommendation to the governing body, such as the city council or county board of supervisors. The final decision is made following a public hearing by the governing body. Members of the public are entitled to provide testimony and evidence at the public hearing.
Notice for public hearings must be provided in advance and the agenda for the hearing must disclose what actions the body is prepared to take. Actions not included on the agenda must be delayed to a subsequent meeting.
Procedural disclosure lets the public know what actions the local agency is considering taking, and when and how the public can offer testimony and other information for local officials to consider. But knowing when and how to participate doesn’t help the public learn what the project is, what its impacts and benefits may be, or what action they might want the local agency to take.
That is why California’s additional requirements for public disclosure about issues of substance as well as procedure can be such a powerful tool for informed civic engagement. Two substantive disclosure requirements in particular are noteworthy:
First, the public is entitled to review staff reports and recommendations and other public records regarding project proposals that require discretionary review and approval. This allows members of the public to benefit from the staff’s data and analysis of the proposal, and to understand and either support or rebut the factual and analytical basis for staff recommendations. It is in the agency’s interest to share this information, because it encourages public comments to focus on the facts and the analysis, rather than on emotional or factually unsupported responses based on preconceived notions or misinformation about the project.
Second, the California Environmental Quality Act (CEQA) provides multiple opportunities for public disclosure and participation. Under CEQA, local agencies are required to analyze and disclose any potentially significant environmental impacts stemming from some projects. They are also required to develop feasible measures to mitigate the impacts, or to adopt a statement of overriding considerations outlining why they intend to proceed with the project despite its environmental effects. The impacts and mitigation measures must be disclosed to the public, usually through a Draft Environmental Impact Report (DEIR). The public has a right to review and comment on the DEIR, and the local agency then must respond to each comment in a Final EIR (FEIR).
Determinations and Documentation
Local agencies in California are obliged to make “findings” and “determinations” about some of their decisions related to land use. Findings are written explanations of the legal and factual support for a particular decision. By adopting these findings after a public hearing and placing them on the public record, local agencies provide another opportunity for the community to understand and weigh in on decisions.
The following are some of the most important findings and determinations that local agencies make related to land use and affordable housing proposals.
General plan consistency. Many land use decisions require a finding that the action is consistent with the general plan. A project is inconsistent if it conflicts with a general plan policy that is fundamental, mandatory, and clear. Perfect conformity is not required, but the project must be compatible with the general plan’s objectives and policies. In addition, the various elements of the general plan are required to be consistent with one another. Sometimes, the general plan must be amended to allow the proposed new use.
Consistency with zoning and other ordinances. Before approving or denying a project, a local agency must determine whether the project complies with the provisions of local ordinances regulating development. Examples include the zoning ordinance, requirements for a conditional use permit, or an historic preservation ordinance. This determination must be provided in writing and supported by “substantial evidence in light of the entire record” regarding the proposal.
CEQA Findings. Before the local agency can approve a project for which an environmental impact report (EIR) or other environmental document has been prepared, it must certify the legal adequacy of the document. This is generally done following one or more public hearings, first by any appropriate advisory body (such as the local planning commission) and then by a final decision of the agency governing board.
The CEQA findings explain how the agency has resolved each environmental issue raised during the proceedings. The findings explain which impacts are significant, which mitigation measures are feasible, why other alternatives were rejected, and why the project’s benefits outweigh its consequences. The public is entitled to comment on the adequacy of the FEIR or other CEQA determination before it is certified.
Legal Requirements Related to Housing
In addition to the legal provisions that apply generally to land use decisions, there are a number of requirements that apply specifically to housing projects, plans and proposals. This is especially true in light of the legislative session ending in 2019. The California Governor signed into law no less than fourteen (14) bills that directly affect a local agency’s authority to permit, condition or deny housing development applications. Unsurprisingly, because most – if not all – observers agree that the housing shortage in California has exacerbated housing affordability and homelessness challenges, most of the new laws are meant to remove what housing advocates and legislators have viewed as obstacles to residential development.
Findings required for housing limits. Any general plan provision or zoning ordinance that limits the number of housing units that may be constructed on an annual basis must contain specific findings. The local agency must identify specific issues related to public health, safety, and welfare that justify reducing the housing opportunities of the region.3 SB 330 amended both the Permit Streamlining Act and the Housing Accountability Act, with special rules effective Jan.1, 2020 through Jan. 1, 2025, and also established the Housing Crisis Act.
Under the new rules, local agencies’ ability to apply new policies that might limit housing developments will be severely restricted. “Housing development” is now defined to include residential projects, mixed-use projects with 2/3 of the square footage dedicated to residential units and transitional or supportive housing projects. Additionally, SB 330 creates a “preliminary application” process under which applicants who provide certain information about a housing development to a local agency will be able to lock in those local policies and rules that are in effect at the time the application is made.
To facilitate the preliminary application process, all public agencies must compile and make available to the public in writing and on the internet a checklist that specifies what is required to complete a development application. The developer has 180 days from the submittal of the preliminary application to submit a development application. Under SB 330, the local agency now has additional disclosure obligations when rejecting an application as incomplete and cannot request anything that is not identified on the application checklist. Finally, SB 330 also shortens the timeframes for housing development approval under the Permit Streamlining Act. Local agencies now have 90 days, instead of 120 days, following certification of the environmental impact report, to approve the project. For low-income projects seeking tax credits or other public funding, that time frame is 60 days.
Findings required to deny a housing project. A local agency has limited discretion to reject affordable housing projects, including mixed-use developments consisting of both residential and nonresidential uses. For example, prior to rejecting an affordable housing development application, or imposing conditions that renders a development infeasible, the agency must make one or more of the following specific findings:
The agency has adopted an approved housing element and the proposed project is not needed to meet the agency’s share of the regional housing need for very low-, low-, or moderate- income housing.
The proposed project would have a specific, adverse impact upon the public health or safety and there is no feasible method to satisfactorily mitigate or avoid the adverse impact without rendering the project unaffordable to low-and moderate-income households.
The denial of the proposed project or the imposition of conditions is required in order to comply with specific state or federal law and there is no feasible method to comply without rendering the development unaffordable to low- and moderate-income households.
The project is being proposed on land zoned for agriculture or resource preservation that is surrounded on at least two sides by land being used for agricultural or resource preservation purposes, or the proposed site does not have adequate water or wastewater facilities to service the project.
The project is inconsistent with both the zoning ordinance and general plan land use designation as of the date the application was deemed complete, and the jurisdiction has adopted a housing element in substantial compliance with state law. If, however, the proposed development is to be located on a site designated for low-income housing in the housing element, and is consistent with the density in the housing element, then the agency cannot rely upon the project’s inconsistency with the zoning ordinance or general plan as grounds for denial of the project.4
Density bonuses. State law provides a density bonus and other incentives including waivers, modifications and parking restrictions for development projects that incorporate affordable housing. While the specific provisions are complex, in general projects may be entitled to an increase in allowable density if they include a designated percentage of units affordable to very low- or low-income households, special needs populations, and students. The density bonus also applies to all senior housing projects, regardless of whether they include affordable housing.5
Additionally, Assembly Bill 1763 amended California’s density bonus law to authorize significant development incentives to encourage 100 percent affordable housing projects. The bill allows up to 20 percent of units in a proposed project to be available for moderate income households, while the remainder of the units must be affordable to lower income households. The affordability restrictions apply to both the base units and the extra units granted through the density bonus. These 100 percent affordable housing projects can receive an 80 percent density bonus from the otherwise maximum allowable density on the site. If the project is within 1/2 mile of a major transit stop, a city may not apply any density limit to the project. In addition to the density bonus, qualifying projects will receive four regulatory concessions. And, if the project is within 1/2 mile of a major transit stop, it will also receive a height increase of up to three additional stories, or 33 feet. The 100 percent affordable housing projects are also not subject to any minimum parking requirements.
Incentives and concessions. Developers are also entitled under state law to a number of other incentives to encourage affordable housing. These include reduced parking requirements as a matter of right, and consideration of a number of other concessions and waivers including reductions in site development standards, zoning, architectural design, or other regulatory concessions.6
3See Cal. Gov’t Code §§ 65302.8 (general plan), 65863.6 (zoning ordinance). 4See Cal. Gov’t Code § 65589.5. 5See Cal. Gov’t Code § 65915. For more information, see California Municipal Law Handbook, § 10.5.05(F) (2007). 6ID