WRITTEN PUBLIC
COMMENTS RECEIVED
June 9, 2026
Beverly Hills City Council
455 N Rexford Drive
Beverly Hills, CA 90210
To: Lester Friedman, [email protected]; Sharona Nazarian, [email protected]; John Mirisch, [email protected]; Craig Corman, [email protected]; Mary Wells, [email protected] Cc: Huma Ahmed, City Clerk, [email protected]; Laurence Wiener, City Attorney, [email protected]; Michael Forbes, Planning Director, [email protected] Re: Item F-2: SB 79 Alternative Plan
Dear Beverly Hills City Council,
The California Housing Defense Fund (CalHDF) and Californians for Homeownership submit this comment letter in regard to Item F-2, the SB 79 Transit Oriented Development Alternative Plan (TODAP), being considered at the regular adjourned City Council hearing on June 9, 2026.
The City’s proposed Alternative Plan fails to maintain the total net zoned capacity of the standards prescribed by Government Code section 65912.157; the proposed unavailability of waivers, incentives, and concessions allowing for additional height is preempted by Government section 65915; and the application of state law is not a sudden emergency necessitating this Council action. The Council must reject the plan as proposed.
The City’s Plan Fails to Maintain Total Net Zoned Capacity in Violation of Government Code Section 65912.161, Subdivision (a)(1)
SB 79 requires that “a local transit-oriented development alternative plan shall maintain at least the same total net zoned capacity, in terms of both total units and residential floor area, as provided for in this chapter across all transit-oriented development zones within the jurisdiction.” (Gov. Code, § 65912.161, subd. (a)(1).) This means the total net zoned capacity under the alternative plan must be greater than or equal to the total net zoned capacity in the City were SB 79 to take effect. However, the total net zoned capacity of the alternate plan in terms of density is 2,935 units and 39 acres of floor area less than under the provisions of Government Code section 65912.157.
Pages 109 and 110 of the Staff Report show the calculations for capacity needed. In those calculations, staff correctly deducted existing units and floor area from the SB 79 capacities to calculate the SB 79 net zoned capacities pursuant to Government Code section 65912.161 subdivisions (a)(1)(A)-(B). Staff never made the same deduction, as required, from the TODAP capacities. Thus, the gross TODAP capacity is the same as the net SB 79 capacity.
However, the statute unambiguously states that the City “must maintain the same total net zoned capacity.” (Gov. Code, § 65912.161, subd. (a)(1).) Because of this mistake, the net zoned capacity of the Alternative Plan is 2,935 units and 39 acres of floor area less than under the provisions of Government Code section 65912.157.
The staff report alludes to “credit” the City gets for existing units. This “crediting” system has no basis in the law and runs counter to section 65912.161, subdivision (a)(1). Staff offer no justification for this system’s existence.
The City must redo its Alternative Plan to redistribute its removed density and floor area.
The Alternative Plan Does Not Support the Density it Claims Pursuant to Government Code section 65912.160, subdivision (c)(1), the City must demonstrate by a preponderance of evidence that the policies of the Alternative Plan do “not physically preclude, alone or in concert, the applicable housing development standards of Section 65912.157.” Of the six parcels importing the redistributed density, two are the government-owned Wilshire/La Cienega Station itself, and one is a registered historic landmark subject to Article 32 of the Beverly Hills Municipal Code requiring maintenance of the property to the maximum practicable extent.
Aside from the obvious bad faith of siting much of the redistributed density on undevelopable parcels, in concert with other laws this siting will physically preclude development at the standards prescribed in section 65912.157 and thus violate section 65912.160, subdivision (c)(1).
The City Must Allow DBL Height Waivers Under Its Alternative Plan Proposed City Code section 10-3-5102.7(A) precludes the use of Density Bonus Law (DBL) waivers to increase building height beyond 75 feet (or 95 feet adjacent to stations) for projects developed under the City’s Alternative Plan:
Request for Height Increase. Pursuant to Government Code Section 65912.157(d), the City is not required to grant a waiver, incentive, or concession pursuant to Government Code Section 65915 for additional height beyond that specified in this Article, except as provided in subparagraph (D) of paragraph (2) of subdivision (d) of Section 65915.
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However, this provision violates Government Code section 65912.161 as well as the DBL.
Government Code section 65912.161, subdivision (d):
Section 65912.157 shall not apply within a jurisdiction that has a local transit-oriented alternative plan that has been approved by the department as satisfying the requirements of this section in effect. The department’s approval pursuant to this section shall be valid through the jurisdiction’s next amendment to the housing element of its general plan.
If the City opts to implement SB 79 with an alternative plan, then it may not rely on section 65912.157 to preclude the use of DBL height waivers, as section 65912.157 “shall not apply” within the City. This means that the City must allow height waivers beyond 75 feet (or 95 feet adjacent to stations) pursuant to the DBL. By adopting a “local transit-oriented alternative plan” the City is establishing local development standards as an alternative to state standards. These standards, including height limits, are subject to modification by state density bonus law.
State Law’s Application is not a Sudden Emergency Requiring Council Action for the Preservation of Public Welfare, Health, or Safety
Per Government Code section 65858, subdivision (a), ordinances will not be effective for 30 days unless necessary to preserve the public welfare, health, or safety of the City and the City Council adopts by a four-fifths majority a declaration of the facts constituting the urgency.
The facts do not justify an immediate threat to public welfare, health, or safety. Simply put, the imminent emergency posing a threat to public health and safety would be state law’s application and residential density at the standards prescribed by the Legislature. In the attached 2023 letter addressed to all cities, Attorney General Rob Bonta wrote that urgency ordinances “do not provide an avenue to avoid the substantive application of relevant state law.” (Rob Bonta, All Cities and Counties in California (July 17, 2023).) The letter reiterates that urgency ordinances are only appropriate in the face of a current and immediate threat to public health or safety and are not a simple way for cities to circumvent state procedural requirements.
The justifications offered for the necessity of an urgency ordinance do not demonstrate a current and immediate threat to public welfare, health, or safety. The City’s findings fail to identify a direct threat instead talking about the City’s “garden” character. However, the City does not show how SB 79 will destroy the City’s “garden” character, nor does the City say how loss of its “garden” character constitutes a threat to public welfare, health, or safety. Even less convincing is the City’s assertion that this emergency ordinance is necessary to preserve housing affordability, as this runs directly against the stated purpose of SB 79.
Finally, assertions that this is necessary to prevent vehicular traffic and parking concerns do 3 of 4
not show an immediate threat to public health or safety, and could only be true if the City’s actual intent with this Plan were to thwart development at the standards prescribed by SB 79 rather than implement it as required by state law.
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Californians for Homeownership and CalHDF appreciate the City’s effort to implement SB
79. The current proposal needs revision before it can be finalized and implemented in accordance with state law. The Council must reject this plan, and direct staff to create a plan which complies with state law and procedure.
Sincerely,
Matthew Gelfand Dylan Casey
Californians for CalHDF
Homeownership
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July 17, 2023
To: All Cities and Counties in California
Dear Colleagues:
In recent years, the Legislature has passed several laws responding to California’s housing crisis by mandating that local governments ministerially approve proposed housing developments under certain circumstances. Such laws include (but are not limited to) Senate Bill 9 (SB 9) (Gov. Code §§ 65852.21, 66411.7), which took effect January 1, 2022, and addresses lot splits and duplexes in single-family zoned neighborhoods, and Assembly Bill 2011 (AB 2011), which takes effect July 1, 2023, and addresses affordable housing permitting on commercial zoned land.
Following the enactment of SB 9, some local jurisdictions enacted “urgency zoning ordinances” aiming to restrict or impose additional requirements on projects that were otherwise subject to ministerial approval under SB 9. Interim urgency ordinances provide a procedural tool to quickly respond to an immediate threat to public health, safety, or welfare, and do not circumvent the substantive requirements of state housing laws such as SB 9 or AB 2011. This guidance reminds local jurisdictions of the strict state law requirements that apply to the enactment of urgency ordinances. The Attorney General encourages local jurisdictions to review their existing urgency ordinances for validity, and properly implement California’s housing laws moving forward.
Analysis
A. Legal Requirements for Urgency Ordinances
1. “Current and Immediate Threat to Public Health, Safety, or Welfare” Under limited emergency circumstances, local jurisdictions may pass urgency zoning ordinances that prohibit projects and land uses that conflict with a city’s planning or zoning. (Gov. Code, § 65858, subds. (a)-(c); see also 216 Sutter Bay Associates v. County of Sutter All Cities and Counties in California
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(1997) 58 Cal.App.4th 860, 869.)1 An urgency ordinance is initially valid for only 45 days, but can be extended for a total of two years, subject to the requirements discussed below. (§ 65858, subds. (a), (b).)
To be valid, urgency ordinances amending zoning regulations must be supported by written legislative findings that “there is a current and immediate threat to the public health, safety, or welfare, and that the approval of additional subdivisions, use permits, variances, building permits, or any other applicable entitlement for use which is required in order to comply with a zoning ordinance would result in that threat to public health, safety, or welfare.” (§ 65858, subd. (c).) Failure to make the showings required by Section 65858 renders an urgency ordinance invalid as a matter of law. (California Charter Schools Assn. v. City of Huntington Park (2019) 35 Cal.App.5th 362, 365.) Urgency ordinances must be adopted by a four-fifths vote. (§ 65858, subds. (a), (b).)
The legislative findings must establish a threat to the public health, safety, or welfare that is current and immediate. (§ 65858, subd. (c); Building Industry Legal Defense Foundation v.
Superior Court (1999) 72 Cal.App.4th 1410.) Courts have generally found that the immediacy requirement is satisfied in “situations where local agencies were faced with immediate threats of development.” (Id. at p. 1419, citing 216 Sutter Bay Associates v. County of Sutter (1997) 58 Cal.App.4th 860; Conway v. City of Imperial Beach (1997) 52 Cal.App.4th 78; Metro Realty v.
County of El Dorado (1963) 222 Cal.App.2d 508.) Urgency ordinances are intended to be limited “to situations where an approval of an entitlement of use was imminent.” (Building Industry, supra, 72 Cal.App.4th at pp. 1418–1419; accord California Charter Schools Assn., supra, 35 Cal.App.5th at p. 370; Crown Motors v. City of Redding (1991) 232 Cal.App.3d 173, 179–180 [a pending permit application would constitute an immediate threat because, absent an urgency ordinance, the permit at issue would have been approved within 30 days].) Local jurisdictions must provide evidence documenting the immediacy of the threat to public health, safety, or welfare. In California Charter Schools Assn. v. City of Huntington Park, Huntington Park enacted an urgency ordinance that temporarily barred development of new charter schools while the City considered amending its zoning code. (California Charter Schools Assn. v. City of Huntington Park (2019) 35 Cal.App.5th 362, 365.) Huntington Park claimed that new charter schools would increase traffic and prevent the development of commercial taxgenerating properties, which posed an immediate threat to public health, safety, or welfare. (Id. at p. 366.) As evidence for its claim, Huntington Park proffered “at least five inquiries” it had received requesting charter schools and “several serious sit down discussions” it had conducted with charter school representatives. (Id. at p. 369.) Upon reviewing this evidence, the Court concluded that “mere inquiries, requests, and meetings do not constitute a current and immediate threat within the meaning of [section 65858,] subdivision (c).” (Id. at p. 371.) Local jurisdictions are therefore required to show an actual imminent threat to the public health, safety, or welfare and make specific supportive factual findings. An urgency ordinance that is not supported by a sufficient showing of an immediate threat to public safety, health, or welfare is invalid as a matter of law. (Id. at p. 365.)
1 Statutory references that follow are to the Government Code unless otherwise stated.
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An urgency ordinance’s findings must also document the nature of the threat to public health, safety, or welfare. In 216 Sutter Bay Associates v. County of Sutter, the County justified its urgency ordinance by showing that a proposed amendment to the general plan would create a new 140,000-person community in a county of only 65,000, and that an urgency ordinance was needed to preserve a countywide vote on the proposed amendment. (216 Sutter Bay Associates, supra, 58 Cal.App.4th at p. 864.) The Court of Appeal in Sutter Bay held that the County’s showing that the amendment “could alter—in a radical and fundamental manner—the current way of life for Sutter County residents” satisfied the findings required by Section 65858. (Id. at p. 868.) By contrast, statements about the uncertainty of implementation of a new state housing law or generalized concerns about visual or aesthetic standards are insufficient to support an urgency ordinance.
2. Extension of Urgency Ordinance Beyond Initial 45 Days: “Objective, identified written public health or safety standards, policies, or conditions” An urgency ordinance that “has the effect of denying approvals needed for the development of projects with a significant component of multifamily housing,” defined as onethird of the total square footage of the project, is subject to additional requirements upon its extension. (§ 65858, subds. (c), (h).) Such ordinances may not be extended beyond the initial 45 days except upon written findings adopted by the legislative body, supported by substantial evidence in the record, of a “specific, adverse impact upon the public health and safety,” which is defined as “a significant, quantifiable, direct, and unavoidable impact based on objective, identified written public health or safety standards, policies, or conditions” existing at the time that the urgency ordinance is adopted. (§ 65858, subd. (c)(1)). The findings must further demonstrate that there is no feasible alternative that would mitigate or avoid the adverse impact “as well or better, with a less burdensome or restrictive effect,” than the urgency ordinance. (§ 65858, subd. (c)(3).) In addition, a city must “issue a written report describing the measures taken to alleviate the condition which led to the adoption of the ordinance” at least ten days before its extension. (§ 65858, subd. (d).)
This provision applying to urgency ordinances that would deny multifamily housing development would likely apply to interim ordinances responding to SB 9 and AB 2011. SB 9’s provisions allowing for duplexes would entail multifamily development and AB 2011 is specifically directed to multifamily housing.
Local jurisdictions must make these findings with enough specificity to support an adverse impact. In Hoffman Street, LLC. v. City of West Hollywood¸ developer petitioners sought a writ of mandate against West Hollywood for enacting an urgency ordinance that barred petitioners from developing a condominium project. (Hoffman Street, LLC. v. City of West Hollywood (2009) 179 Cal.App.4th 754.) West Hollywood’s urgency ordinance, which limited permitting in certain zones to increase density and affordability, was based on the claim that “‘the significant unmet need for smaller affordable housing units [is] posing a current and immediate threat to the public health, safety and welfare.’” (Id. at pp. 760–761.) The Court noted that the requirements for urgency ordinances limiting multifamily development under subsection (c)(1) of section 65858 are “more extensive and more specific than the findings required upon the adoption or extension of any interim ordinance.” (Id. at p. 771.) The Court held that West All Cities and Counties in California
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Hollywood’s findings “failed to identify ‘a specific, adverse impact on the public health or safety.” (Id. at p. 772, emphasis added.) West Hollywood’s findings also “failed to identify any ‘written public health or safety standards, policies, or conditions’ on which such an impact would be based.” (Ibid., citing § 65858, subd. (c)(1).)
Therefore, the findings supporting an urgency ordinance extension that affects multifamily housing must be specifically targeted to the issues arising on particular parcels that create the adverse public health and safety impact.
B. Recently Enacted State Housing Laws Limiting Local Discretion Urgency ordinances provide a procedural tool to respond to current and immediate public health and safety threats, but they do not provide an avenue to avoid the substantive application of relevant state law. The passage of laws like SB 9 and AB 2011 does not, in and of itself, pose a current and immediate threat to public health, safety, or welfare. Accordingly, the enactment of such a law generally cannot — standing alone — support an urgency ordinance.
As described below, California’s housing laws generally empower local jurisdictions to regulate or deny projects on a case-by-case basis based on specific health or safety grounds, without an urgency ordinance. For example, SB 9 expressly allows local agencies to deny permits upon written objective findings addressing public health and safety and AB 2011 allows jurisdictions to exempt some parcels from its requirements under specified conditions. Urgency ordinances are unsupportable when public health and safety concerns arising from a permit application can be addressed without an urgency ordinance.
1. SB 9
SB 9, which took effect on January 1, 2022, enacted Government Code sections 65852.21 and 66411.7. Together, these sections allow property owners to build duplexes on single-family lots and split single-family lots in two. Importantly, both sections expressly bar SB 9’s application to potentially dangerous areas such as very high fire hazard severity zones, special flood hazard areas, and earthquake fault zones. SB 9 incorporates these safety exemptions from SB 35, another housing law requiring ministerial approval of some housing applications that was passed in 2017. (§§ 65852.21(a)(2), 664117(a)(3)(C) [incorporating the requirements of § 65913.4, subds. (a)(6)(B)-(a)(6)(K)].)
a. Section 65852.21 (Duplexes)
Government Code section 65852.21 provides that proposed housing projects of two residential units located on a single-family residential zone will be reviewed ministerially, without discretionary review, if they meet specific criteria, such as being located within a city. (§ 65852.21.) Local jurisdictions may impose on such projects objective zoning, subdivision, and design review standards, defined as standards devoid of “personal or subjective judgment by a public official” and that “are uniformly verifiable by reference to an external and uniform benchmark or criterion available and knowable by both the development applicant or proponent and the public official prior to submittal.” (§ 65852.21, subd. (i)(2).) All Cities and Counties in California
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Local jurisdictions may deny housing project applications under SB 9 if they make a “written finding, based upon a preponderance of the evidence, that the proposed housing development project would have a specific, adverse impact … upon public health and safety or the physical environment.” (§ 65852.21, subd. (d).) Central to this power to deny is the “specific, adverse impact,” which is defined by Government Code section 65589.5 as “a significant, quantifiable, direct, and unavoidable impact, based on objective, identified written public health or safety standards, policies, or conditions as they existed on the date the application was deemed completed.” (§ 65589.5, subd. (d)(2), incorporated by reference in § 65852.21.) In light of the fact that section 65852.21 authorizes local jurisdictions to deny individual duplex applications based on findings that the project would have an adverse impact on health and safety or the environment, an urgency ordinance seeking to restrict all such projects across the board cannot be justified.
b. Section 66411.7 (Lot Splits)
Government Code section 66411.7 requires local jurisdictions to ministerially review requests to split urban single-family lots into two approximately equal parcels, if those lots meet specific requirements. (§ 66411.7.) Lots created in this manner shall be exclusively for residential purposes. (§ 66411.7, subd. (f).) Local jurisdictions may impose objective zoning, subdivision, and design standards on such projects unless such standards “physically preclude[e] the construction of two units on either of the resulting parcels or that would result in a unit size of less than 800 square feet.” (§ 66411.7, subd. (c)(1)(2).) As with duplexes, local jurisdictions may deny requests to split lots when the relevant official makes written objective findings that the lot split would have a specific and adverse impact on public health and safety or the physical environment. (§ 66411.7, subd. (d).) Thus section 66411.7, like section 65589.21, offers local jurisdictions a case-by-case instrument for preserving their public health, safety, and physical environment and there can be no justification for an urgency ordinance with a broad exemption.
2. AB 2011
AB 2011 requires ministerial review for affordable housing projects located in commercial zones. Specifically, it provides ministerial approval for two types of projects: (1) projects that provide entirely (100%) affordable multifamily housing and are in an urban infill area that is zoned commercial (§ 65912.114), and (2) projects that provide mixed-income housing, with a certain percentage of affordability, and are located along commercial corridors in urban infill areas (§ 65912.124).
Like SB 9, AB 2011 is not applicable in potentially dangerous areas such as very high fire hazard severity zones, special flood hazard areas, and earthquake fault zones. (§§ 65912.111, subd. (e), 65912.121, subd. (g).) Like SB 9, these sections accomplish this by incorporating the requirements of section 65913.4, subdivisions (a)(6)(B) through (a)(6)(K). In addition, AB 2011 provides specific requirements to assess and mitigate environmental hazards. (§§ 65912.113, All Cities and Counties in California
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subd. (c), 65912.123, subd. (f).) Also, a local jurisdiction may exempt parcels from AB 2011 if it makes available other replacement parcels for development, at specified densities and subject to other provisions of AB 2011, and makes findings that the replacement results in no net loss of total zoned capacity or zoned capacity for affordable units and affirmatively furthers fair housing. (§§ 65912.114, subd. (i), 65912.124, subd. (i).) AB 2011 delayed operation of its provisions for nine months, which provided local jurisdictions ample opportunity to utilize this exemption before applying AB 2011 to project applications. All these provisions allow jurisdictions to protect public health, safety, and physical environment, provided that they contribute to increasing California’s housing supply and affirmatively further fair housing. A generalized urgency ordinance in response to AB 2011 is unnecessary.
C. Conclusion
Where state housing laws expressly authorize local governments to deny specific proposed projects based on health and safety concerns, as SB 9 does, or exempt specific properties from its ambit, as AB 2011 does, it is unclear how the high bar for an urgency ordinance can be satisfied.
The mere fact that a state law provides for a ministerial — as opposed to discretionary — review process does not, standing alone, establish the type of immediate threat to public health, safety, or welfare required to justify an urgency ordinance. Further, an interim urgency ordinance is a procedural tool to expeditiously adopt local regulations pending a city’s contemplated plan adoption or zoning ordinance. Such an ordinance must comply with the substantive requirements of state housing laws and cannot be used in an attempt to circumvent substantive legal requirements.
Local jurisdictions are urged to review any existing urgency ordinances for compliance with the requirements of section 65858, and repeal urgency ordinances that do not comply with these standards. Where needed, jurisdictions are encouraged to use their existing authority under state housing laws to review individual projects on health and safety grounds, rather than enacting overly broad and legally unjustifiable urgency ordinances. If implementation of a ministerial housing approval statute poses an immediate, current, and substantiated public health and safety threat, local legislative bodies must make the requisite written findings to justify an urgency ordinance. Given that such an ordinance likely would impact multifamily housing, findings supporting an extension must also satisfy the heightened standards applicable under Section 65858(c)(1)-(3) of establishing “a significant, quantifiable, direct, and unavoidable impact based on objective, identified written public health or safety standards, policies, or conditions.” Developers, property owners, and permit applicants are advised that jurisdictions with insufficiently supported urgency ordinances are vulnerable to legal challenge under existing case law.
Sincerely,
ROB BONTA
Attorney General