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).
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