Senate Bill 330, referred to as the Housing Crisis Act of 2019, contains two major parts intended to accelerate housing production over the next five years by streamlining permitting and ensuring no net loss in housing capacity.  Governor Newsom signed SB 330 into law on October 9, 2019, and it will be in effect from January 1, 2020 until January 1, 2025 unless extended via additional legislation.

The first major part of SB 330 establishes various “good government” requirements that affect the processing of housing development projects in every California city and county.  The second part of the law limits the ability of “affected” cities and counties—a smaller but substantial subset of agencies that are designated by the U.S. Census Bureau as “urbanized areas or urban clusters”—to downzone property and regulates the ability of developers to replace existing housing with new housing.

The focus of this blog post is the powerful new, and applicant-friendly, statutory form of vested rights referred to as a “preliminary application,” contained in the first part of SB 330, over which cities and counties have no discretion.

Continue Reading Establishing Vested Rights Through SB 330’s Preliminary Application: Understanding the Key Differences Between “Deemed Complete” and “Determined to be Complete” in the “Housing Crisis Act of 2019”

In a recent opinion certified for publication on December 18, 2019, Citizens for Positive Growth & Preservation v. City of Sacramento, __ Cal.App.5th __ (2019), the Third District Court of Appeal rejected a citizens group’s challenge under California’s Planning and Zoning Law and CEQA to the City of Sacramento’s recently updated 2035 General Plan.  The group contended that a single sentence in the introductory paragraph of the City’s updated General Plan allegedly violates and conflicts with state planning laws and that the EIR for the project contained substantial supplemental changes that required recirculation.

Continue Reading Court Rejects Facial General Plan Consistency Challenge Based on Single Sentence in Sacramento’s 2035 General Plan

California cities may be justified to be skeptical when officials from Sacramento offer broad solutions to the state’s pernicious housing crisis.  But the decades-old crisis highlighted by a severe and unsustainable underproduction of new housing is real and getting worse, and the legislature is finally grappling with land use and housing policy proposals that would put meaningful guardrails on otherwise unfettered local control that has long stifled new housing supply.

Continue Reading Judicial NIMBYism? Overreaching San Mateo Trial Court Decision Takes on Legislature and Governor, Declaring Nearly 40-Year Old Housing Production Law Inapplicable to Charter Cities

In a case of first impression published on October 25, 2019,  Denham, LLC v. City of Richmond,  Cal.App.5th __ (2019) (Case No. A154759), the First District Court of Appeal agreed with a trial court that a ballot initiative to preclude development on 430 acres in Richmond’s El Sobrante Valley caused the Richmond General Plan to become impermissibly inconsistent.  But the Court reversed as to the appropriate remedy, and it ordered the trial court to issue a writ of mandate directing the City to cure the inconsistency.

Continue Reading Court Orders City to Cure Internal Inconsistency in Richmond General Plan Created by Citizen-Sponsored Ballot Initiative

The California Coastal Act governs land use planning for California’s entire coastal zone, directing the state Coastal Commission to maximize the public access to and along the coast consistent with the rights of property owners.  The Act protects public access by, among other things, precluding development from interfering with such use and protecting oceanfront land suitable for recreational use.  The Act also requires the Commission to minimize potential conflicts between the public and beachfront property owners and to resolve potential conflicts between the Coastal Act’s policies in a way that, on balance, is most protective of significant coastal resources.

Continue Reading Takings Challenge to Coastal Commission Setback Condition Fails for Not Presenting “Exact Issue” to the Agency

Senate Bill 330, known as the Housing Crisis Act of 2019 and authored by State Senator Nancy Skinner (D-Berkeley), passed the California legislature on Friday, September 6, 2019, with strong support from numerous organizations supportive of the production of new housing.  For a five-year period ending January 1, 2025, SB 330 would require local governments to process housing permits faster, prevent local governments from “changing the rules in the middle of the game,” and suspend certain housing limits.  Although various local agencies and groups that favor strong local land use control opposed SB 330, Governor Gavin Newsom has publicly championed substantial housing production goals and is certain to sign the bill.

Continue Reading Housing Crisis Act Passes in California Legislature, Will be Signed by Governor Newsom

According to traditional urban economic models, developers in well-functioning housing markets will choose to build apartments where land is expensive and housing demand is strong.  The theory itself is sound: high rents provide strong financial incentives to developers that should lead to an increasing supply of new multi-family housing.

Continue Reading Report Shows That Local Land Use Regulations Play a Key Role in Impeding Development of New Multi-Family Housing in California

Despite well-settled limits on California’s constitutional initiative and referendum powers, the courts continue to be faced with ballot measures that test those boundaries.  We wrote about one such case—San Bruno Committee for Economic Justice v. City of San Bruno, 15 Cal.App.5th 524 (2017)—almost two years ago when the First District Court of Appeal rejected a phony special interest group and a hotel and restaurant workers’ union attempt to use the referendum process to thwart a private hotel development that would not employ union workers.  In short, the court in that case agreed that San Bruno’s adoption of a resolution to sell city property to a hotel developer was an administrative act, and thus not a proper subject of a referendum, because it implemented prior legislative actions that established the manner in which the site would be developed.

Continue Reading Court Excuses County Counsel From Preparing Ballot Titles and Summaries for Proposed Initiatives That Intrude on Matters Reserved Expressly for Board of Supervisors

On July 18, 2019, in Sacramentans for Fair Planning v. City of Sacramento, __ Cal.App.5th __ (2019), the Third District Court of Appeal affirmed a trial court decision denying a “vertical” consistency challenge filed by “Sacramentans for Fair Planning” after the City of Sacramento approved a15-story “high-rise” condominium building—known as the “Yamanee” project—in the City’s Midtown area.  The plaintiff group also challenged the City’s streamlined CEQA review of the project under a sustainable communities environmental assessment (“SCEA”).  My partner, Art Coon, analyzed those issues in the CEQA Developments blog.

Continue Reading Court Rejects Land Use Consistency Challenge to Sacramento Mixed-Use Project Providing “Significant Community Benefits”

On June 21, 2019, the Supreme Court of the United States decided Knick v. Township of Scott, Pennsylvania, 588 U.S. __ (Case No. 17-647), a closely-watched property rights case that was argued first in October of 2018 and again in January of 2019 after Justice Brett Kavanaugh joined the Court.  Knick addressed the requirement, established in Williamson County Regional Planning Comm’n v. Hamilton Bank of Johnson City, 473 U.S. 172 (1985), that property owners must seek just compensation under state law in state court before bringing a federal takings claim under 42 U.S.C. section 1983.

Continue Reading In Major Property Rights Decision, U.S. Supreme Court Rules That Property Owners May Sue in Federal Court Without Seeking a Just Compensation Remedy in State Court First