STAFF REPORT
Meeting Date: January 28, 2025
To: Honorable Mayor & City Council
From: Masa Alkire, AICP, Assistant Director of Community Development/City Planner
Cindy Gordon, AICP, Principal Planner
Subject: Ministerial Permit Process Discussion for Certain “Builder’s Remedy” Housing Development Projects
Attachments: 1. Public Correspondence
INTRODUCTION
The City Council is requested to consider whether an alternative ministerial permit process should be established for housing development projects subject to Government Code Section 65589.5, generally referred to as “Builder’s Remedy” projects. Such a process would be made available to developers that agree to modify their projects to meet certain objective criteria, thus creating an incentive to design their projects to be more consistent with the scale of other recently entitled developments in the city.
DISCUSSION
The Housing Accountability Act prohibits cities from disapproving a qualifying housing development project that meets certain affordability requirements, unless specific findings can be made. Some of these findings are not applicable unless a city has a certified general plan housing element (Govt. Code §65589.5(d)(1) and (5)). These provisions are commonly referred to as Builder’s Remedy, because they may limit a local agency’s ability to deny a project that includes “housing for lower income households, mixed-income households, or moderate-income households”, even if that project is inconsistent with the applicable general plan and zoning regulations.
The City’s Housing Element was adopted by the City on March 18, 2024, and certified by the California Department of Housing and Community Development (HCD) on May 1, 2024. However, prior to those dates, a total of 15 preliminary applications (PA’s) were submitted for Builder’s Remedy projects before the City adopted its Housing Element and a total of 19 PA’s were submitted for Builder’s Remedy projects before May 1, 2024. The purpose of a PA is to vest the rights of a project pursuant to the ordinances, policies, and standards adopted and in effect at the time the PA was submitted. The lack of a certified housing element at the time a PA is submitted means that deviations from the City’s General Plan land use designation and zoning regulations cannot be a basis for denying a project submitted under the Builder’s Remedy.
Meeting Date: January 28, 2025
The City is currently processing 14 Builder’s Remedy projects. Three of the 19 projects that had submitted a PA did not submit formal entitlements and are no longer valid. Two additional projects, located at 8800 Wilshire Boulevard and 8820 Wilshire Boulevard, submitted formal applications that exceeded the floor area of the project described in the corresponding PA by more than 20%. Therefore, these two projects are not eligible for processing as Builder’s Remedy projects pursuant to Government Code Section 65589.5(d)(5).
The 14 Builder’s Remedy projects that are currently undergoing City review are being processed as discretionary land use entitlements. The characteristics of these projects, such as height and density, far exceed the City’s existing development standards that would otherwise be applicable for non-Builder’s Remedy projects and are of a size that many consider to be out of scale with existing development patterns. Accordingly, the City is currently exploring various options to encourage these developers to reduce the size and scale of the projects while also promoting the development of additional housing units.
One option for the City Council to consider is the development of a ministerial permit process for these projects, which may serve as an incentive for developers to reduce the size of their projects in exchange for a more streamlined review process.
As described in the Beverly Hills Municipal Code, an action is ministerial if it does not require a City official to exercise discretion concerning any outcome or course of action for a project. An example of a ministerial permit is a building permit, which is issued as a matter of course provided a proposed project complies with all applicable codes, development standards, and regulations. An example of a discretionary permit is any type of land use entitlement that requires review and findings by the City Council, the Planning Commission, the Architectural and Design Review Commission, or the Director of Community Development. Currently, all new mixed-use projects and multi-family residential projects require the approval of a discretionary Development Plan Review and, typically, a Density Bonus Permit.
A ministerial permit process would provide more certainty for housing developers as it sets clear standards by which a proposed project would be approved. The establishment of a ministerial permit process can also reduce barriers to housing development, as discretionary processes typically involve a considerable amount of time (e.g., six to twelve months from project submittal to a hearing) and cost (e.g., application fees, environmental report preparation, holding costs, etc.) as the project moves through the various steps in the process. Importantly, ministerial projects are not subject to the California Environmental Quality Act (CEQA) and no environmental reports or documents, which can often cost housing developers anywhere from $50,000 to $250,000 or more, would be required as part of a ministerial permit process for a particular project. Any ordinance amending the Code to establish such a ministerial permit process would undergo applicable CEQA review.
However, a ministerial permit process would also limit public input on a particular project as there is no public noticing requirement for a ministerial permit. Additionally, pursuant to BHMC 1-4-302, no right of appeal exists for decisions (i.e., permit issuance) that are ministerial and thus do not involve the exercise of administrative discretion or personal judgement exercised pursuant to any provisions of the BHMC.
If the Council determines that the establishment of a ministerial permit process for Builder’s Remedy projects is desired, City staff requests direction on two aspects:
Meeting Date: January 28, 2025
1) Which project types should be subject to a ministerial permit process? Currently, staff’s focus is on the establishment of a ministerial permit process for projects submitted as Builder’s Remedy projects in order to provide an incentive to housing developers to reduce the size of the projects to be more in line with projects that have recently been approved by the Planning Commission, and the City Council on appeal. If there is an interest in a more broad-based application, the development of a ministerial process with objective standards could serve as a model for establishing such a streamlined process for all housing projects in the city that include an affordable housing component.
Almost all housing projects now utilize the provisions of state density bonus law (SDBL). Certain aspects of SDBL are a state mandate, meaning that an applicant is entitled to take advantage of the benefits afforded by that law and the City has limited ability to deny the request. For example, the developer is entitled to the additional density and incentives/concessions and waivers because it is a density bonus project. Additionally, pursuant to the HAA, the City’s ability to deny a housing development project is constrained, and to do so requires specific findings that would need to be made. Only objective standards can be basis for project denial, although there is some authority to impose conditions on a project to promote compliance with subjective standards (i.e., required findings), provided that the conditions don’t have the effect of reducing density or making the project infeasible.
As previously noted, due to limitations imposed by state law, most new mixed use and multi-family residential projects are required to go through a discretionary process whereby the decision makers (e.g., the Planning Commission or City Council) are extremely limited in their ability to deny or require modifications to projects. This often results in frustration during the process, particularly with community members who are opposed to the project and decision makers who may not want to approve the project in its proposed form. While state law still allows cities to impose a discretionary process on housing projects, the practical benefits of that process have been diminished over the years due to new regulations intended to benefit housing developers and the production of new housing units, which limit a jurisdiction’s ability to deny a project that may be otherwise out of scale with the existing area. Given these limitations, the impact of offering a ministerial process to projects meeting certain objective standards is expected to be minimal, resulting in projects of a size and scale consistent with SDBL projects recently approved by the Planning Commission and City Council. The ministerial process would be available to projects meeting the objective standards, thus giving a developer the option to design a project that meets the criteria, or to pursue a project that does not meet the objective standards through the more typical discretionary process. A developer’s ability to utilize SDBL would not be constrained in any way, however, failure to meet the objective criteria for the ministerial process for any reason, including a SDBL concession or waiver, would render the project ineligible for the ministerial process.
Meeting Date: January 28, 2025
2) What objective standards should be developed that would be applicable to all such projects?
If a ministerial permit process is developed, staff recommends the City Council provide general direction on the objective standards that would be applicable to these projects in order to ensure that projects continue to be compatible, as much as possible, with the surrounding area and future visions for mixed use and multifamily residential neighborhoods. Objective development and performance standards could include, but are not limited to:
Development Standards
• Limit height to 75’ to the top floor level; up to 85’ to the top of the building (this configuration is typical with SDBL projects because of increased construction costs above this height due to building code requirements); • Require compliance with certain minimum setback requirements; • Require compliance with certain modulation and massing standards; • Require certain rooftop elements to be stepped back from facades in order to limit additional massing;
• Require that common outdoor open space be set back a certain distance from residentially zoned properties; and
• Require a maximum depth for balconies that are adjacent to another residentially zoned property.
Performance Standards
• Limit hours of operation for common outdoor open space; • Limit the use of outdoor living spaces to be used only by project residents and guests; for mixed use projects, no commercial occupants can utilize rooftop facilities;
• Limit rooftop/common outdoor open space to passive uses (e.g., no fitness areas, dog runs, swimming pools, BBQs, or televisions); and • Prohibit the use of amplified sound in any outdoor area, including private balconies.
Many of the standards above are already implemented for new housing developments by the City Council and Planning Commission through project specific conditions of approval. If direction is provided to prepare a ministerial permit process, City staff would prepare a comprehensive list of objective development and performance standards that would apply to any project seeking to utilize the streamlined process.
PUBLIC NOTIFICATION
While public notification is not required for study session items, the City sent out courtesy emails to all builder’s remedy applicant teams and interested parties lists for each project advising them of the Council discussion. As of the writing of this staff report, the City has received one piece of public correspondence, which is included as Attachment 1.
FISCAL IMPACT
There is no fiscal impact to the City beyond staff time required to prepare an ordinance to establish a ministerial permit process, if so directed by Council.
Meeting Date: January 28, 2025
RECOMMENDATION
Staff recommends the City Council provide direction on the establishment of a ministerial permit process for certain housing development projects.
Michael Forbes, AICP
Director of Community Development
Approved By
ATTACHMENT 1
Public Correspondence
rom: Steve Perkins <[email protected]>
Sent: Sunday, January 19, 2025 1:21 PM
To: City Clerk <[email protected]>
Cc: Edgar Arroyo <[email protected]>; Judy Gutierrez <[email protected]>; Arsen Dolukhanyan <[email protected]>; Michael Abrams <[email protected]>; Claire Cabrey <[email protected]>; Sabeen Dhand <[email protected]>; Tibor Stankoczy <[email protected]> Subject: Resident comments on City Council Item # G-1 (28-Jan-2025 meeting) ⚠️ CAUTION: EXTERNAL
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Cc: [email protected] , Judy Gutierrez <[email protected]> Re: City Council Item Number G-1
Subject: Ministerial Permit Process Discussion for Certain “Builders Remedy” Housing Development Projects
Dear Honorable Mayor and City Council Members,
As a homeowner and resident of Beverly Hills, I am writing to share my thoughts regarding agenda item G-1, which will be discussed during the City Council Study Session on Tuesday, January 28, 2025. Specifically, I refer to the agenda report prepared by Masa Alkire and Cindy Gordon (attached) proposing the City Council consider an alternative ministerial permit process.
First, I would like to commend the City of Beverly Hills for its thoughtful and transparent approach to keeping stakeholders informed about “Builders Remedy” projects. The updates provided to interested parties serve as a model of effective communication and civic engagement, and I greatly appreciate the City’s efforts in this regard.
That said, as a resident deeply invested in the character and quality of our community, I urge the City Council to ensure that any ministerial permit process not only provides a smooth bureaucratic process but is primarily designed to significantly curtail the size and scope of new developments to remain in harmony with the existing environment.
Beverly Hills is not, and should not become, a high-rise urban landscape. Overly ambitious developments that dramatically increase traffic, population density, and infrastructure demands would not only alter the unique character of our city but also bring with them potential irreversible challenges, such as increased crime, congestion, and strain on public resources.
Encouraging developers to adopt a realistic and measured approach to each project is essential. Streamlining processes should not come at the expense of maintaining the charm and livability of Beverly Hills. A balanced approach—one that promotes progress while safeguarding the identity of our community—is critical.
Thank you for considering my concerns as you deliberate on this important matter. Your efforts to preserve the unique fabric of Beverly Hills while addressing housing needs are greatly appreciated.
Sincerely,
GS Perkins III (South Hamilton Drive)
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