On May 13, 2016, Brown administration released the administration’s “May Revision” budget, which contains a bold proposal in a trailer bill to address California’s long-standing and consequential housing affordability problem, one that has been documented extensively by the Legislative Analyst’s Office.
In particular, the administration has proposed legislation—entitled Streamlining Affordable Housing Proposals—that would provide ministerial, or “by‑right,” land use entitlement provisions for multi-family infill housing developments that include an affordable housing component. The laudable goal of this important bill is to restrain development costs, improve the pace of housing production by increasing certainty and shortening the local approval process, and encourage an increase in housing supply.
Under the proposed legislation, which would be codified in Government Code section 65913.3, a local government—specifically including charter cities—could not require a conditional use permit, planned unit development permit, or other discretionary local government review or approval for qualifying developments that include affordable housing. A development would be required to be permitted by right if it satisfies five criteria:
- The development applicant notifies the local government that it intends to use this statute and also certifies under penalty of perjury that, to the best of the applicant’s knowledge and belief, the development conforms to all requirements of the streamlining statute;
- The proposed development is consistent with objective general plan and zoning standards at the time the application is submitted to the local government;
- The proposed development is located on a site that is either immediately adjacent to parcels that are developed with urban uses or at least 75 percent of the perimeter of the site adjoins parcels that are developed with urban uses;
- The proposed development must be an attached housing development in which at least 20% of the units will be set aside for lower-income residents (but if the development is within a transit priority area, then at least 5% of the units must be set aside for very-low income residents or 10% must be set aside for lower-income residents); and
- Unless proposed development is on a designated housing site, it must not be on certain types of land, such as prime farmland, wetlands, very high fire hazard severity zone, hazardous waste site, delineated earthquake fault zone, flood plain, or flood way.
The bill also includes rapid processing requirements. If a local government determines the proposed development is inconsistent with objective general plan and zoning standards, then it must provide the applicant with written documentation of the standard the development is inconsistent with and explain why the development is not consistent. And this action must occur within 30 calendar days of the application’s submittal. If the local government’s documentation fails to identity the objective standards the development is inconsistent with, fails to provide the required explanation, or does not provide this information within 30 calendar days of the submittal, then the development is deemed to qualify for by right approval. Moreover, any design review of the proposed development must take place within 90 days from the application’s submittal, “and shall not in any way inhibit, shill, or preclude the ministerial approval” provided by this statute.
Without analyzing its many wrinkles in detail, note that the bill would apply to all cities and counties, including charter cities, because the legislature considers the lack of affordable housing a matter of vital statewide importance. In addition, a qualifying development would receive the benefits of the statute upon application submittal, not when it is deemed complete. The relevant general plan and zoning standards must be objective. And while the bill says nothing about the California Environmental Quality Act, developments that are approved ministerially are exempt from CEQA.
The Governor’s proposal is a loud message to the state that our decades-long housing crisis needs a serious fix. The LAO has already weighed in, on May 18, 2016, to suggest changes to strengthen the proposal and to determine the proposal warrants serious consideration from the legislature. We wouldn’t agree more.
Questions? Please contact Bryan W. Wenter, AICP of Miller Starr Regalia.
For more than 50 years, Miller Starr Regalia has served as one of California’s leading real estate law firms. Miller Starr Regalia has expertise in all types of real property matters, including full-service litigation and dispute resolution, transactions, acquisitions, dispositions, leasing, financing, common interest development, construction, management, eminent domain and inverse condemnation, exactions, title insurance, environmental law, and land use. Miller Starr Regalia attorneys also write Miller & Starr, California Real Estate 4th, a 12-volume treatise on California real estate law. “The Book” is the most widely used and judicially recognized real estate treatise in California and is cited by practicing attorneys and courts throughout the state. For more information, visit www.msrlegal.com.