California’s Housing
Laws
Barbara E. Kautz
Goldfarb & Lipman LLP
City of Belmont Joint City Council and
Planning Commission Meeting
October 28, 2025
Presentation Overview
• Introduction: State Housing Policy
• The Housing Accountability Act
• Density Bonuses
• Ministerial Approvals and CEQA Exemptions
• Housing in Commercial Zones
• Shortened Review Times
• Litigation, HCD, and the Courts
• What Can Cities Do?
2 State Housing Policy
3 Making It Hard to Deny Housing Projects
“The Legislature’s intent in enacting this section in
1982 and in expanding its provisions since then was to
significantly increase the approval & construction of
new housing for all economic segments of California’s
communities by meaningfully and effectively curbing
the capability of local governments to deny,
reduce the density of, or render infeasible housing
development projects. This intent has not been
fulfilled.”
4 Major Themes in Legislation Since 2017
• Very difficult to deny or reduce density of housing
• Applicants may use density bonus law to ignore almost all City standards (height, floor area, etc.)
• State standards imposed in place of local ones (ADUs, SB 9, SB 79, parking, housing in commercial zones, code limits)
• Greatly reduced timelines for many approvals
• More ministerial approvals (no public input, no CEQA) • Increased authority to HCD
• Increased penalties for noncompliance
5 The Housing Accountability Act
6 Preliminary Applications
“Preliminary application” freezes development
standards as of date all required info was submitted
• But project must meet these timelines:
• Project application must be filed within 180 days
• Applicant must complete application within 90 days of receiving incomplete letter
• Can be submitted for ANY housing project.
7 Five-Meeting Limit for Housing Projects
City cannot hold more than 5 public meetings on
any housing project after project is “complete”
• Includes appeals and continuances
• Includes any meeting organized by the City
• Applies to single-family homes
• Excludes legislative actions (rezonings, etc.)
8 Key Provisions
Denial of any housing project with 2+ units only if:
• Project doesn’t comply with “objective
standards” OR
• Results in “specific adverse impact” on public
health & safety
• A “significant, quantifiable, direct, and unavoidable impact, based on objective, identified, written public
health or safety standards” that can’t be mitigated
9 Key Provisions – “Affordable” Project
Denial of “affordable” project only if:
• Doesn’t comply with both zoning and general plan
• “Specific adverse impact”
• Doesn’t comply with state or federal law
• Inadequate water or sewer
• Zoned for ag or resource preservation;
surrounded on two sides by sites used for that
10 What Is an “Objective Standard”?
“Involves no personal or subjective judgment by a public official and verifiable by referring to an external benchmark" 11 OBJECTIVE SUBJECTIVE
DENSITY REQUIREMENTS REFLECT THE LOOK AND FEEL OF THE
COMMUNITY
HEIGHT LIMITS SITE IS NOT PHYSICALLY SUITABLE FOR
THE PROPOSED USE
LOT COVERAGE MUST BE COMPATIBLE WITH ADJACENT
USES
SETBACKS
FAR REQUIREMENTS
Implications for Project Review
•BUT: Developers can obtain waivers of most
City standards, objective or not, under
density bonus law
•Includes height, setbacks, open space, ground
floor commercial, design standards, etc. etc.
•Project with waivers is considered
“consistent”
12 Density Bonuses
13 Density Bonus Law
• Eligible project: 5% to 100% affordable housing
• Eligible projects entitled to receive:
• A density bonus [20 – 100%, or unlimited];
• 1 – 7 “incentives / concessions” [reduce costs]
• Unlimited waivers of development standards
• Reduced parking requirements.
• Density Bonus project = consistent with City standards • So can qualify for many CEQA exemptions
14 Concessions and Waivers for Density Bonus
• Can only be denied if:
• “Specific, adverse impact”
• Violates state or federal law
• Adverse impact on project listed on California Register • Concessions may also be denied if they do not result in “identifiable and actual cost reductions”
• Banker’s Hill 150 v. City of San Diego: waivers must be approved for project “as designed”
15 Density Bonus Law
• Affordable units required by City can qualify
project for density bonus (Latino Unidos v.
County of Napa)
• Example:
• Belmont requires 15% low (rental) or 15% moderate (forsale) income units for projects with 25 units or more • All of these projects are eligible for a density bonus • Smaller projects can also elect to provide affordable housing
16 Ministerial Approvals
&
CEQA Exemptions
&
More Limits
17 California Environmental Quality Act
If project requires
discretionary approval,
CEQA may apply
• Mitigation measures can
be imposed if project
not exempt
• But more exemptions
and more ministerial
approvals exempt from
CEQA
18 Ministerial Approvals
•Only reviewed according to fixed standards;
like building permits
• Exempt from CEQA review
• State has created more and more categories
• ADUs, SB 9, some subdivisions with 10 units or less
• “SB 35”: streamlined review on housing sites
• AB 2011: housing in commercial zones
• SB 4: affordable housing on faith-based and
private educational sites
19 Broad New Infill Exemption (AB 130)
Housing Projects in City Are Exempt from CEQA If:
• Site not more than 20 acres
• Previously developed with an urban use or 75% surrounded by urban uses or near urban uses
• Consistent with general plan and zoning
• At least 15 du/acre
• Meets certain environmental standards (no habitat for protected species, no wetlands, meets flood & fire stds.) • Doesn’t demolish listed historic resource
20 “By Right” Sites
Exemption from CEQA for Housing on “Reused”
Sites Designated for Housing in Housing Element
• 20% lower income housing
• Subdivision subject to CEQA
21 Freeze on Residential Building Codes
No changes in CBC or local standards until June 1, 2031 except:
• Bldg. Standards Comm. deems necessary as emergency
standards to protect health & safety
• Relate to home hardening (also if proposed by Fire District) • Implement a general plan adopted by June 10, 2025 to
permit mixed-fuel buildings while incentivizing all-electric • Changes related to administrative practices
22 Housing in Commercial Zones
23 Housing in Commercial Zones (AB 2011/SB 6)
•City is receiving inquiries from
developers interested in developing
housing in 100% commercial/industrial
zones
•AB 2011/SB 6/SB 79 may allow this
•Ministerial approval under AB 2011/SB 6
•May be ministerial under SB 79
24 AB 2011/SB 6
• Apply to most sites where commercial & parking uses
may occupy more than 1/3 of the site
• Specific plan adopted before 1.1.24 must allow
multifamily development
• Not allowed if site or adjoining sites have more than 1/3 industrial use
• Other complex requirements
SB 79:
• Appears to apply within ¼ mile of Caltrain station
25 Housing in Commercial Zones
• Specifies allowed building heights & densities
• AB 2011: 30 to 80 units/acre; 35-65’ height
• SB 79: 120 units/acre; 75-foot height; FAR 3.5
• Density bonus applicable
• Affordability requirements
• Prevailing wages required (SB 79: over 85’ only)
• SB 6: only 50% residential required
26 Shortened Review Times
27 Ministerial Projects: VERY Fast Timelines
• 60 days from receipt of complete application
• City may have only 30 days from determination of
completeness
• No time for optional public review of projects
• Exception for AB 2011/SB 6 projects
• 60-90 days from submittal to determine
consistency; 30 days from resubmittal
• 60-90 days from consistency to approve
28 New AB 130 Infill Exemption
Tribal Notification
• Tribes have 60 days to respond
• Consultation must be completed in 45 – 60 days
If Project Eligible, City Must Then Approve or Deny
Project Either:
• Within 30 Days after tribal notification complete; or • Within 30 days after deadline to provide consistency
determination
29 Difficult to Schedule Public Hearings within
Limited Review Time
• Public notice must be sent minimum of 10 days
before hearing
• Staff reports published 6 days before hearing
• To schedule hearing, staff must commence staff reports and preparation of hearing notices before tribal
consultation or review of project is complete
30 Litigation, HCD, and the Courts
31 HCD and Attorney General Enforcement
•HCD Housing Accountability Unit
• Broader and broader authority
• Letters of Technical Advice
• Notices of Violation
• Referral to Attorney General
• Attorney General has strike force that acts
independently
32 HCD Decertification & the Builder’s Remedy
•HCD has authority to “decertify” housing element
if not implemented as promised
• Would subject Belmont to the “builder’s remedy”
• All sites could be built with “base density” of at least 80 du/acre; could be doubled with density bonus
• Project could qualify for new infill exemption
• Must be approved “as proposed by the applicant”
33 Third-Party Litigants & Aggressive Developers
Californians for Homeownership, YIMBY,
California Housing Defense Fund
• Have sued dozens of cities on housing issues
• Often join in, or are plaintiffs, in litigation
related to denials of housing development
Developers’ attorneys
• More & more aggressive, demanding, &
challenging
34 Housing Cases in General
•Courts:
• Generally very pro-housing
• Uphold housing approvals
• Overturn denials
•City risks:
• Significant attorneys fees exposure
• High defense costs
• AB 712: fine of $10,000/unit if take action
contrary to letter received from HCD or AG
35 What Can Cities Do?
36 Proactive Steps
• Adopt objective health & safety standards
• Examples: sidewalk & bikeway standards, street
design, “safe routes to school,” fire evacuation
standards, adequate sewer & water capacity, etc.
• Designate historic sites and buildings
• Adopt standards requiring studies of
environmental issues apart from CEQA
• Adopt environmental standards & mitigation
measures
• Contact your legislators
37 Project Review
• Review Under CEQA, If Not Exempt
• Analysis of environmental issues required
• City may impose feasible mitigation measures
• Enforce Health & Safety Standards
• Enforce State & Federal Law
• Protect Historic Sites If Possible
38 Thank You
39