STAFF REPORT
DATE
: August 24, 2021
TO: J
ustin Hess, City Manager
FR
OM: Patrick Prescott, Community Development Director
Via: Fred Ramirez, Assistant Community Development Director – Planning By: Scott Plambaeck, Deputy City Planner
SUBJ
ECT: Overview of SB 35-Streamlined Ministerial Approval Process
RECOMMENDATION
1. Note and file report.
2. Direct staff to prepare a draft Ordinance establishing a public oversight process and give direction on who the decision maker should be for this streamlined, ministerial approval process for SB 35 applications.
BACKGROUND
What is SB 35?
At
the August 10, 2021 Council meeting, staff presented an update on pending housing legislation and Council directed staff to return with an informational overview of Senate Bill (SB) 35. SB 35 is intended to address the State’s housing shortage and high housing costs ( Attachment 1).
1 The purpose of SB 35 is to create a s treamlined ministerial approval process for cities that have not made sufficient progress toward meeting their regional housing need assessment ( “RHNA”) allocation to process development applications expeditiously.
SB
35 mandates that projects meeting certain specified criteria 2 must be processed through a streamlined, ministerial approval process and shall not be subject to a conditional use permit. The City may only evaluate the proposal against objective zoning 1 Senate Bill 35 is codified in the State statutes as California Government Code Section 65913.4 2 Section 65913.4(a)(1) through (a)(10).
COMMUNITY
DEVELOPMENT
ATTACHMENT 12-1
standards, objective subdivision standards, and objective design review standards in effect at the time the completed notice of intent is submitted to the City. These “objective standards” are defined as “standards that involve no personal or subjective judgment by a public official and are uniformly verifiable by reference to an external and uniform benchmark or criterion available and knowable by both the development applicant and the public official before submittal.”3 SB 35 further provides that when “objective zoning, general plan, subdivision, or design review standards are mutually inconsistent, a development shall be deemed consistent with the objective zoning and subdivision standards … if the development is consistent with the standards set forth in the general plan.”4 In other words, where the general plan and municipal code conflict on matters such as permitted uses or development standards, a proposed project is deemed consistent as long as it meets the general plan standards – even if the zoning is more restrictive or protective.
DISCUSSION
Applicability of SB 35
The S
tate has established the methodology for determining whether cities are making “sufficient progress” toward meeting their RHNA allocation. RHNA allocations are broken into income levels. The following table notes the City’s current RHNA allocation for the 5th planning cycle by income level.
Regi
onal Housing Needs Assessment (RHNA) for
Burbank: 2014‐2021
Income Level Percent of Area Median
Total RHNA Percentage of Units
Extremely Low 0‐50% 694* 25.9%*
Very Low 30‐50% 694* 25.9%*
Low 51‐80% 413 15.4%
Moderate 81‐120% 443 16.5%
Above Moderate 120%+ 1,134 42.3%
Total 2,684 100.0%
Source: Southern California Association of Governments (SCAG), 2013. Note:
*Extremely Low Income Level is a subcategory of the Very Low Income level For
the purposes of SB 35 t he C alifornia Department of Housing and Community Development (“HCD”) looks at the City’s progress in providing housing units against their RHNA allocation. The State assesses jurisdictions at the midpoint of the housing element planning cycle and again at the end. Southern California Association of Governments (SCAG) jurisdictions, which the City is part of, are currently in the First Half Reporting 3 Subsection 65913.4(a)(5).
4 Subsection 65913.4(a)(5)(B).
ATTACHMENT 12-2
Period of the 5th planning cycle (2014 – 2021). Only 29 jurisdictions in the state are not subject to SB 35’s streamlined, ministerial approval process for residential developments; this means 510 jurisdictions including the City of Burbank are subject to SB 35.5
If the City doesn’t have at least 50% permitting progress for an applicable income category as noted in the City’s RHNA allocation , then the jurisdiction is considered as having insufficient progress for the reporting period. The City’s RHNA allocation and progress at the midpoint of the 2014–2021 5th planning cycle (i.e., as of 2017) is a total of 325 housing units permitted, or 12 percent, out of the 2,684 RHNA allocation. This is less than the 50% of the allocation required to avoid SB 35 streamlining requirements.
The City has not made sufficient progress toward its “Above Moderate” income level RHNA allocation. As such, if a proposed development has at least 10% affordability at the low -income level, then the development may qualify for S B 35 ’s streamlined, ministerial approval process.
The next SB 35 Determination for SCAG jurisdictions will be conducted at the Last Half Reporting Period of the 5th plan ning cycle (2014 –2021), at which point reporting jurisdictions will need to demonstrate 100 percent permitting progress toward their 5th Cycle RHNA to not be subject to SB 35. Through 2020 the City has issued 697 building permits for housing units or 26 percent out of the 2,684 RHNA allocation. See Attachment 2- “Annual Housing Element (RHNA) Progress Report”.
SB 35 Streamline Ministerial Approval Process
Besides the statute, Section 65913.4, HCD released the “Updated Streamlined Ministerial Approval Process Government Code Section 65913.4 Guidelines” (Attachment 3 - “HCD Guidelines”) to assist cities through the approval process. First, the City must provide information, in a manner readily accessible to the general public, about the locality’s process for applying for and receiving ministerial approval, materials required for an SB 35 application, and the relevant objective zoning, subdivision and design review standards to be used to evaluate the application. The information provided may include reference documents and lists of other information needed to enable the City to determine if the application is consistent with objective standards.
The City may only require supplemental information that is relevant and required to determine compliance with objective standards and criteria that would be applicable to the proposed project as outlined in Section 65913.4. This may be achieved through the use of checklists, maps, diagrams, flow charts, or other formats. The City’s process and application requirements cannot in any way “inhibit, chill, or preclude” the streamlined 5 https://www.hcd.ca.gov/policy-research/docs/sb35_statewidedeterminationsummary.pdf
ATTACHMENT 12-3
ministerial approval process, which must be strictly focused on assessing compliance with the criteria required for streamlined projects pursuant to Government Code Section 65913.4. The City has developed a process and prepared an application form for the SB 35 Streamlining Ministerial Approval Process (Attachment 4 – “SB 35 Application”). The image below depicts the SB 35 processing timeline, and a description of the process is a follows:
1. Notice of Intent (NOI). The first step is for a prospective applicant to submit an NOI, which is notice the developer intends to proceed under SB 35. The NOI must be in the form of a preliminary application that includes all of the information described in Section 65941.1. The City of Burbank has prepared an SB 35 Application Form in compliance with Section 65941.1, which is available on the City’s website at:
www.burbankca.gov/web/community-development/forms-and-fees .
2. Tribal Consultation. After receiving an NOI, the City must notify relevant California Native American tribes about the proposed development, as outlined in Section 65913.4(b).
a. The City is required to provide a formal notice of a development proponent’s NOI to each California Native American tribe that is traditionally and culturally affiliated with the geographic area of the proposed development within 30 days of receiving that NOI.
b. Each California Native American tribe that receives a formal notice shall have 30 days from the receipt of that notice to accept the invitation to engage in a scoping consultation.
c. If the City receives a response accepting an invitation to engage in a scoping consultation, the City shall commence the scoping consultation within 30 days of receiving that response. The results of the consultation dictate whether an SB 35 application may be submitted. If there is no tribal response to the City’s ATTACHMENT 12-4
invitation for consultation, or the City and tribe agree no potential tribal cultural resources will be affected , or there is an enforceable agreement reached between the City and tribe to protect potential cultural resources, then the developer of the residential project is allowed to submit a formal application under SB 35. If there is no agreement reached, a proposed project would not be eligible for SB 35 processing and no application may be submitted thereunder.
3. Application Submittal. After completing the NOI and Tribal Consultation process, an applicant can submit an application for streamlined ministerial approval processing under SB 35 (also referred to as SB 35 processing) to the City . The applicant must submit a building permit application and an SB 35 streamlined ministerial approval process application (i.e., a SB 35 Application Form in the case of Burbank) demonstrating the proposed project’s eligibility under Section 65913.4.
The date of submittal of the application triggers the timelines for streamlined review as follows:
a. Notice of Determination. Planning staff must determine if a project is in conflict with any of the objective planning standards listed in subdivision (a) of the statue within 60 days of an application submittal for projects of 150 or fewer units, and 90 days for projects consisting of more than 150 units. If the City provides written comments as to any conflicts in the objective standards, or requests additional information to make such a determination, then the 60- or 90-day timeline will restart upon submittal of a revised development application in response to such written notice. The City’s written comments shall specify the standard or standards with which the development conflicts and shall provide an explanation for the reason or reasons the development conflicts with that standard or standards, within the timeframe specified. If the application can be brought into compliance with minor changes to the proposal, the City may, in lieu of making detailed findings, allow the development proponent to correct any deficiencies within the timeframes specified.
If the City fails to provide the requi red documentation determining consistency within these timeframes, the development shall be deemed to satisfy the City’s objective planning standards and shall be deemed consistent.
SB 35 does not preclude imposing standard conditions of approval as long as those conditions are objective and broadly applicable to similar developments within the C ity, and such conditions implement objective standards that have been adopted prior to submission of the NOI. This includes any objective process requirements related to the issuance of a building permit. However, any further approvals, such as demolition, grading, and building permits or, if ATTACHMENT 12-5
required, final map, shall be issued on a ministerial basis subject to the applicable objective standards.
b. Design Review/Public Oversight . A final determination on an SB 35 application must be completed in 90 days for 150 or fewer units and 180 days for projects with more than 150 units, measured from the date of the SB 35 application submittal. SB 35 provides a public process for review of a project in Section 65913.4, (d). This statute allows for design review or public oversight of the development by the Community Development Director, P lanning Board or City Council. This process, however, “shall be objective and be strictly focused on assessing compliance with criteria required for streamlined projects, as well as any reasonable objective design standards published and adopted by ordinance or resolution…”. These design standards must be in place before the NOI is submitted and shall be broadly applicable to other developments within the City. Further, such a process “shall not in any way inhibit, chill or preclude the ministerial approval provided” for in SB 35. Currently, the City’s design review process for certain minor or ministerial projects allows for a decision by the Community Development Director with right of appeal to the Planning Board and City Council. The City’s current process is pre-empted by the design review/public oversight process outlined, above, in Section 65913.4, (d). Options for this process will be discussed below under Potential Ordinance Feedback Section.
4. Final Approval or Denial of Application.
The City must approve or deny the application within 90 days of application submittal for projects of 150 or fewer units, and 180 days for projects consisting of more than 150 units.
5. Proposed Modifications (by Applicant). Following approval of an application, but prior to issuance of the final building permit required for construction of the development, an applicant may submit a written request to modify the development in accordance with the Government Code Section 65913.4 and the HCD Guidelines.
Upon receipt of the request, the City shall determine if the requested modification is consistent with the City’s objective standards in effect when the original application for the development was submitted. The City shall not reconsider consi stency with objective planning standards that are not affected by the proposed modification.
Approval of the modification request must be completed within 60 days of submittal of the modification or 90 days if ministerial design review is required. A proposed modification shall not cause the original approval to terminate.
ATTACHMENT 12-6
6. Permit Approval. If the City approves a development under the SB 35 streamlined ministerial approval process, the City shall issue subsequent permits (e.g., demolition, grading, encroach ment, sign, tree removal, building, final maps, as necessary) required for a development approved under the SB 35 streamlined ministerial approval process if the application for those permits substantially complies with the development as it was approved. Upon receipt of an application for a subsequent permit, the City shall process the permit without unreasonable delay and shall not impose any procedure or requirement that is not imposed on projects that are not approved using the streamlined ministerial approval process.
Issuance of subsequent permits shall implement the approved development, and review of the permit application shall not inhibit, chill, or preclude the development.
For purposes of this subsection “unreasonable delay” means permit processi ng times that are longer than other similar permit requests for projects not approved using the streamlined ministerial approval process.
How Does the City review a SB 35 project?
The City has to review an SB 35 application based on applicable objective standards in effect at time of submittal of the NOI. SB 35 defines “objective standards” or “objective planning standards” as an objective zoning, objective subdivision and objective design review standard. An “objective zoning standard”, “objective subdivision standard”, and “objective design review standard” means standards that involve no personal or subjective judgment by a public official and are uniformly verifiable by reference to an external and uniform benchmark or criterion available and knowable by both the applicant or development proponent and the public official prior to submission of a development application.
SB 35 also provides when judging the development for consistency with these objective standards, one must exclude any additional density or concessions, incentives or waivers of development standards granted pursuant to the Density Bonus Law. Further, and probably most importantly, the land use designation in the General Plan supersedes the zoning designation. If there is an inconsistency between objective zoning standards, general plan or design review, a development “shall be deemed consistent” with objective zoning standards, if the development is consistent with the G eneral Plan standards. SB 35 applies to sites where the zoning, the Specific Plan or General Plan allows residential.
For example, if the General Plan allows a residential density per acre but the underlying zoning does not allow residential, SB 35 allows the submittal of a residential project for streamlined, ministerial approval because the City’s General Plan allows residential.
Further, in making the consistency determination, it is irrelevant if the zoning code or the general plan states residential designation or residential density is subject to a discretionary process. This is true because Section 65913.4 ,(a) provides a SB 35 ATTACHMENT 12-7
development “is not subject to a conditional use permit” if the development otherwise complies with the statute. T he review process must be ministerial and cannot require subjective discretion. SB 35 defines the “ministerial processing” or “ministerial approval” to mean a process for development approval involving little or no personal judgment by the public official as to the wisdom or manner of carrying out the project. The public official merely ensures that the proposed development meets all the "objective zoning standards," "objective subdivision standards," and "objective design review standards" that apply to similarly zoned property and are in effect at the time that the application is submitted to the local government but uses no special discretion or judgment in reaching a decision. Thus, if a project meets objective zoning standards such as setback, height, and open space requirements, the City must issue a ministerial approval that cannot be appealed.
California Environmental Quality Act Exemption
If the proposed project is determined to quality for the SB 35 streamline d m inisterial approval process, the project qualifies for a statutory exemption from the requirements of the California Environmental Quality Act (CEQA). This means the project can be entitled without any environmental review including a traffic study.
Potential Ordinance Feedback
SB 35 pre-empts any City processes that allow for review and/or appeals of the project since SB 35 is a streamlined, ministerial approval process. The only process allowed, as noted above, is the statutory design review/public oversight as outlined in the statute. As such, the City Council is being requested to provide staff direction on who should conduct this limited, focus review of the project.
The Council should give direction as to which of these three should make this final determination on entitlement for the SB 35 project keeping in mind the process shall be objective and strictly focused on assessing compliance with objective zoning, subdivision, design review standards and the other criteria in Section 65913.4,(a).
Nothing in SB 35 allows for any type of discretionary approval and all standards must be objective as defined in the statute. The processing under SB 35 is totally ministerial, more of a check the box review, than even processing of a Destiny Bonus application. As such, even with a public review process the decision maker must rely on objective standards.
Burbank’s discretionary neighborhood compatibility standards do not apply to an SB 35 project. Design review standards applicable to the zone, however, like pitch of roof or setbacks are considered objective and thus applicable.
ATTACHMENT 12-8
Staff vs Planning Board or City Council Review
Proposed development projects are always reviewed by City planning staff to determine compliance with applicable objective standards and design guideline regulations. Staff assigned to the review of development projects have specific expertise related to land use development review, zoning code review and interpretation, and the application of local, state, and/or federal regulations. Some development projects that require discretionary review have been considered for final approval by the Planning Board and/or the City Council depending on the type of the required discretionary permit (e.g., Conditional Use Permit or Variance review by the Planning Board, City Council review of a Planned Development/Development Agreement). All these projects include City planning staff review and assessment of the proposed project’s compliance with the City’s zoning regulations and the Burbank 2035 General Plan including any applicable objective development standards and design guidelines.
Based on the possible options available for City minister ial design review, staff is recommending that the ministerial review be undertaken by City planning staff that has the expertise in verifying that a proposed development project including those proposed under SB 35 compl y with the statutory requirements including all applicable objective zoning standards, objective subdivision standards, and objective design review standards. This ministerial review would include a public input process during the time frames allotted under SB 35. Due to the time constraints associated with the processing of an SB 35 application, staff would recommend that if City planning staff is not select ed as the final review of ministerial design review that the City Council be selected for the final ministerial design review to complete this review during the allotted state-mandated time frames. Regardless of whether the Director or Council is selected to complete the ministerial design review, ultimately the final decision is still to be based solely on the project’s compliance with applicable objective zoning standards, objective subdivision standards, and objective design review standards.
Based on the final determination from the City Council, staff will return to Council with an ordinance for the design review/public oversight processing for SB 35 project s. If the Council were to select the Community Development Director/City planning staff to be the decision maker, then staff recommends and will include in any proposed ordinance for one public meeting in the 90- day or 180 -day review period, whichever is applicable, to review the project’s compliance with the objective standards. If the Council chooses itself or the Planning Board , then the design review/public oversight would be during such body’s public meeting.
FISCAL IMPACT
The purpose of this informational report is to provide an update of SB 35 legislation to the City Council and seek their direction on designating the decision maker for design ATTACHMENT 12-9
review/public oversight process under SB 35 . The r eport to discuss this item do es not have a fiscal impact to the City.
CONCLUSION
The State approved the SB 35 streamlined ministerial approval process to address the State’s Housing Crisis. The purpose of SB 35 is to streamline the development review process to encourage the production of housing. The City is subject to the requirements of SB 35, because the City has only issued 26% of permits against its RHNA allocations and as such has not met its RHNA obligations during the current 8-year planning period of the City’s Housing Element (2014-2021). In response to the legislation, City staff has prepared submittal requirements for SB 35 application (Attachment 4). Based on City Council direction, City staff will bring back a draft Ordinance for consideration that outlines who will conduct the design review/public oversight process consistent with Government Code Section 65913.4.
ATTACHMENTS
1. SB 35 Approved Bill
2. Annual Housing Element (RHNA) Progress Report
3. HCD SB 35-Updated Streamlined Ministerial Approval Process Program Guidelines
4. City SB 35 Application Packet
ATTACHMENT 12-10