Construction projects of every type in six Bay area counties—Alameda, Contra Costa, Marin, San Francisco, San Mateo, and Santa Clara—may resume operations on Monday, May 4, after health officers in six counties issued new shelter-in-place orders on April 29.  While the new orders ease the rules in numerous ways, including certain outdoor businesses and recreation such as golf and tennis, Governor Newsom is poised to shut down California’s beaches effective Friday, May 1 after crowds defied orders in the face of a brief heat wave last weekend.

Continue Reading New Bay Area Shelter-in-Place Orders Ease Rules, Allow All Construction to Resume Operations

On April 14, 2020, the Alameda County Public Health Department issued a letter to the Oakland Planning & Building Department criticizing the City’s interpretation of the County’s March 31 “shelter-in-place” order.  Like the orders in the other Bay area counties, the stated intent of Alameda’s shelter-in-place order is to have people shelter in their residences to slow the spread of COVID-19. To that end, the order allows people to leave their residences only for specified Essential Activities, Essential Governmental Functions, Essential Travel, to work for Essential Businesses, or to perform Minimum Basic Operations for non-essential businesses.  The order identifies eight types of construction as “Essential Businesses,” including “affordable housing” that contains at least 10% income-restricted units.

Continue Reading Alameda County Public Health Department Pulls Rank on Oakland, Highlights Arbitrary Treatment of Construction Under Shelter-in-Place Orders

Seeking to piggyback on the State of Emergency Governor Gavin Newsom declared on March 4, 2020 as part of the state’s response to address the global COVID-19 pandemic, California cities filed a letter with the Governor asking him to “pause” various important statutory timelines that apply to twelve parts of state law, including several that play a central role in the ongoing housing crisis.  In the six-page letter, dated March 22, 2020, the League of California Cities explains that

Continue Reading California Cities Seek Relief From Project Processing, Public Records Act, and Other Key Statutory Timelines During State of Emergency Resulting From COVID-19

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”

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

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

California’s ongoing housing crisis has many causes, including, as prominently noted in the Housing Accountability Act, the “activities and policies of many local governments that limit the approval of housing, increase the cost of land for housing, and require that high fees and exactions be paid by producers of housing.”  See, e.g, Cal. Gov’t Code § 65589.5(a)(1)(B).  Fortunately, however, these abuses of the police power are driving the legislature to act.  For example, in explaining the purpose of Senate Bill 50, which we wrote about here, California State Senator Scott Wiener explained that “absent state intervention, communities will continue to effectively prohibit people from living near transit and jobs by making it illegal to build small apartment buildings around transit and jobs, while fueling sprawl and inhumane supercommutes.”

Continue Reading Attorney General Opines that Cities May Not Condition the Grant of a Density Bonus on the Payment of a “Public Benefit Fee”

Declaring there to be a statewide housing emergency, California state Senator Nancy Skinner (D-Berkeley) introduced Senate Bill 330, on February 19, 2019, to suspend certain regulatory restrictions on the development of new housing and to expedite the permitting of housing in certain high-cost regions for a 10-year period.

Continue Reading “Housing Crisis Act” Introduced to Impose Substantial Limits on Local Land Use and Zoning Controls and Expedite Housing Production in High-Cost Regions

Who is responsible for the housing crisis in San Francisco, and what can government do to solve it?  As property values have climbed in San Francisco and surrounding areas, that problem has increasingly vexed elected officials and the courts.  The First District of the Court of Appeal is the most recent to weigh in, with a decision invalidating a local pro-tenant ordinance.  But first, some background.

The Ellis Act is a state statute that prohibits a city or county from “compelling the owner of any residential real property to offer, or to continue to offer, accommodations in the property for rent or lease . . . .”  (Gov. Code, § 7060, subd. (d)(a).)  In short, the Ellis Act allows a landlord to withdraw a rental unit from the market.  In 2014, San Francisco Supervisor David Campos sponsored an ordinance requiring landlords to pay a relocation benefit to tenants being displaced due to the landlord’s “repossession” of the rental unit under the Ellis Act.  The payment required was 24 times the difference between the unit’s current rental rate and the “fair market value” of the unit, as calculated by a prescribed schedule.  In theory, the displaced tenant was to be compensated for two years’ worth of the differential between what the tenant was paying and what the tenant would pay as fair market rent.  Tenants were entitled to the payment regardless of needs or assets, and there was no requirement that the payment actually be spent on expenses of relocation.


Continue Reading Landlords Win San Francisco Legal Battle

Last September we wrote about 616 Croft Ave., LLC v. City of West Hollywood, an opinion from the Court of Appeal for the Second Appellate District upholding a nearly $555,000 in-lieu fee on an 11-unit residential infill project because the fee was “related to the cost of constructing affordable housing units within the City.”  Among other things, we noted that the case “underscores the ongoing need for the United States Supreme Court to finally address whether the heightened scrutiny of the Nollan, Dolan, and Koontz Fifth Amendment takings cases applies to legislatively imposed permit conditions.”

On December 21, 2016, the California Supreme Court denied a petition to review 616 Croft Ave., LLC.  A petition for writ of certiorari was filed on March 15, 2017 (Case No. 16-1137), giving SCOTUS its opportunity to consider the case.


Continue Reading New Cert Petition Asks SCOTUS if Legislatively Mandated Permit Conditions are Subject to Heightened Scrutiny