California’s Housing
Laws
Barbara E. Kautz
Goldfarb & Lipman LLP
February 28, 2023
Presentation Overview
• The Housing Crisis
• The Major State Housing Laws:
• The Housing Accountability Act: Hard to Deny Housing Projects • Replacing Local Planning with State Planning (Housing Elements, AB 2097, AB 2011/SB 6, Density Bonus Law)
• Ministerial and ‘By Right’ Approvals (SB 35, AB 2011, ADUs, SB 9) • Consequences of Non-Compliance
• Communicating with the Public
2 The Housing Crisis
3 Most Lower Income Households Overpaying
4 A Reflection of Rising Inequality
5 California Housing Starts
6 Burbank Housing Production Over Time
7 19 14
275
17 61 115
196
384
1081
5th Cycle RHNA
Allocation 2684
0 1000
2000
3000
2014 2015 2016 2017 2018 2019 2020 2021 2014-2021
City of Burbank Housing Production Numbers 2014- 2021
Units Per Year RHNA Allocation
Burbank Housing Production Over Time
8 Income
Level
RHNA
(5th
Cycle)
2014 2015 2016 2017 2018 2019 2020 2021
Total
(All
Years)
Remaining
RHNA
Very Low 694 3 3 691
Low 413 20 51 44 150 265 148
Moderate 443 6 11 12 32 61 382
Above
Moderate 1134 19 14 275 17 35 53 140 199 752 382
TOTAL
RHNA 2684 19 14 275 17 61 115 196 384 1081 1603
MANY CAUSES
• Labor shortages
• Construction costs
• Material shortages
• Obsolete technology
• Interest rates
• Rising inequality
• Airbnb and second homes
• Zoning and planning
approvals
9 Major Housing Laws
The Housing Accountability Act
10 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.”
11 Key Provisions
• “Preliminary application” freezes development
standards
• Staff must notify applicant in short time (30 to 60 days) if there are any “inconsistencies” – or “deemed
consistent”
• Assumed to be consistent if “substantial evidence
would allow a reasonable person to assume
consistency”
• No rezoning required if general plan is “inconsistent” with zoning
12 Key Provisions
Denial 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
13 Key Provisions
Additional finding to deny project with 20% lower
income units:
1. City meeting RHNA numbers
2. Specific adverse impact to public health and safety
3. Deny to comply with state or federal law
4. Proposed on agricultural land or water/sewer inadequate
5. Inconsistent with Zoning Ordinance & GP land use designation; must have a housing element in substantial conformance with state law, and not on a housing element site
14 What Is an “Objective Standard”?
Involves no personal or subjective judgment by a public official and verifiable by referring to an external benchmark. 15 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 COMPATIBLEWITH ADJACENT
USES
SETBACKS
FAR REQUIREMENTS
What Is NOT an “Objective Standard”?
• “If height varies by more than one story between buildings, a transition or step in height is necessary.”
16 What Is NOT an “Objective Standard”?
• Staff and consultant concluded that the project
conformed to the standard, whereas Planning
Commission and City Council found it did not.
• Both interpretations “reasonable“ which court
construed as proof positive that it is not
objective
• Under “reasonable person standard” either
interpretation works, so it must be approved.
17 Implications for Burbank
•Strict standard for “objective”
•Subjective standards may apply but cannot:
• Reduce density
• Make affordable project infeasible
• Effectively deny project.
•CEQA applies
18 Q & A
19 Major Housing Laws
State Planning for Cities:
Loss of Local Control
20 What Cities Must Approve
• Housing Elements: more sites must be zoned at 30 units/acre • Housing Crisis Act: cannot reduce existing housing capacity • AB 2097: no parking required within ½ mile of major transit stop
• AB 2011/SB 6: housing may be built in commercial zones • Accessory Dwelling Units and SB 9: more units may be built on single-family lots
• Density Bonus Law: projects with affordable housing entitled to increased density and waiver of development standards 21 BURBANK RHNA
• 2013 -2021 (5th Cycle):
• 2,684 units
• 2021-2028 (6th Cycle):
• 8,772 units
22 Housing Crisis Act of 2019
• Cannot reduce density below that existing on January 1, 2018
• Unless “concurrent” density increases
• Includes reductions in height, FAR, increased setbacks • No moratorium without HCD consent
• Can’t enforce growth control limits
23 Parking Requirements - AB 2097
• Projects within ½ mile of a major transit stop = cannot require or enforce parking requirements
• UNLESS study shows “substantially negative impact” on low or very low RHNA, housing needs of elderly or disabled, or residential/commercial parking within ½ mile
• Even if findings are made no parking requirements for housing development projects with a minimum of 20% affordable or fewer than 20 units
24 Residential Development in Commercial Zones
AB 2011 and SB 6 allow multi-family residential
development where it may not have been permitted
previously:
• Applies in zones where commercial, retail or parking
are principally permitted uses
• Effective July 1, 2023
25 Site & Project Criteria (All Projects)
• Multi-family housing development projects only
• Not on or next to a site with more than one-third industrial uses • Sites in a neighborhood area plan must permit multi-family housing (if either adopted by 1/1/22; or NOP issued by 1/1/22 & plan adopted by Jan 1, 2024)
• Prevailing wages; SB 6 also requires union labor
• Affordable housing required by AB 2011
• No parking can be required except disabled, EV , & for bikes 26 Mixed-Income Housing Density
27 Mixed-Income Housing Height Limits
28 Density Bonus Law
• Eligible project: 5% to 100% affordable housing
• Eligible projects entitled to receive:
• A density bonus [20 – 80%, or unlimited];
• 1 – 4 “incentives / concessions” [based on affordability] • Unlimited waivers of development standards
• Reduced parking requirements.
• Density Bonus project = consistent with City standards 29 Density Bonus Law
• Inclusionary units can qualify project for density bonus (Latino Unidos v. County of Napa)
• Example:
• City requires 5% very low and 10% low income
housing
• Project qualifies for 27.5 percent bonus (plus
parking reductions, one concession, unlimited
waivers)
30 31
https://www.hcd.ca.gov/policy-research/plans-
Implications for Burbank
•City is required to accept and approve
plans that conform with state law
•Even if inconsistent with City’s adopted
policies
•Regardless of City or community concerns
32 Q & A
33 Major Housing Laws
Ministerial and ‘By Right’
Approvals
34 What Is a Ministerial Approval?
•A governmental decision involving little or no
personal judgment by the public official.
•Involves only the use of fixed standards and
objective requirements.
•Exempt from CEQA.
•Strict timelines for approval.
35 Projects that Must Be Approved Ministerially
•Accessory Dwelling Units
•SB 9 projects: Two-unit developments
and urban lot splits
•SB 35: Streamlined Ministerial Review
•AB 2011: Housing projects in commercial
zones
36 ADUs: Housing in Residential Zones
• Allows for construction of ADUs and JADUs within all residential zones with less restrictive development standards.
• Requires ministerial approval of all ADUs and JADUs. • Overrides City standards that would physically preclude this type of development.
• New state-mandated development standards include: increased height limits, building in the front yard setback, lesser fire sprinkler requirements, and internal circulation for certain JADUs. 37 38
• Allows for the construction of up to four units on single-family zoned lots (either on one existing lot or after divided into two lots).
• Requires that two-unit housing development projects be approved ministerially and overrides City standards that would physically preclude this type of development.
• SB 9 standards include: minimum setbacks, minimum parking standards, and minimum unit sizes that must be approved.
SB 9: Housing in Single-Family Zones
SB 35 Projects (“Streamlined Review Process”)
Qualifying Projects:
• Multifamily residential with 10% lower income in Burbank • 2/3 residential square footage
• General plan or zoning allows residential or mixed use • No housing occupied by tenants within last 10 years
• More than 10 units = prevailing wages
• Consistent with objective standards; but can request
density bonus waivers if not
39 SB 35 Projects (“Streamlined Review Process”)
• No submittal until tribal consultation completed
• Consistency review in 60 – 90 days after submittal
• Design review and decision in 90 – 180 Days
• AB 2011 prescribes identical process except no
tribal consultation
• SB 6 allows SB 35 to be used on sites zoned
commercial, with only 50% residential
40 AB 2011 SB 35
Location + Permits residential development in
commercial zone
- Must be zoned or planned for residential
or mixed-use development
Project Type - Multifamily residential projects only + May be a mixed-use project so long as two-thirds residential (unless use SB 6)
Affordable Housing - Must provide 13% - 15% affordable housing
+ Must provide 10% affordable housing in
Burbank
CEQA + Exempt from CEQA + Exempt from CEQA
Labor Requirements - Prevailing wage required - Prevailing wage required Approval Process + Streamlined, ministerial process + Streamlined, ministerial process Other + No required tribal consultation - Required tribal consultation process 41 AB 2011 vs. SB 35
Implications for Burbank
•Very fast timelines = big demands on staff
•Limited time for community input
•Scope of public hearings limited
•Decision-makers have very limited
discretion
•Can only apply standard conditions
42 ‘By Right’ Approvals
•No CEQA review
•Only objective design review
•Applies to:
• Certain housing element sites designated for
lower income housing if project has 20% lower
income units and no subdivision is needed.
• Certain supportive housing developments.
• Low barrier navigation centers.
43 Implications for Burbank
•Reviewed like all other planning
applications; no accelerated timeline
•Although public hearings are limited to
objective design review criteria, design
conditions can be imposed
44 Q & A
45 Major Housing Laws
Consequences of Non-
Compliance
46 HCD and Attorney General Enforcement
•Housing Accountability Unit’ with at least 25 staff
•Broader and broader authority
•Letters of Technical Advice
•Notices of Violation
•Referral to Attorney General
•Attorney General has 12-person strike force that
can act independently
47 Active Third-Party Litigants
•Have sued 10 SoCal cities and 12 Bay Area
cities (Californians for Homeownership, YIMBY ,
California Housing Defense Fund) on housing
elements
•Often join in, or are plaintiffs, in litigation
related to denials of housing development
•‘Builder’s remedy’
48 Housing Cases in General
•Courts:
• Generally very pro-housing
• Uphold housing approvals
• Overturn denials
•City risks:
• Significant attorneys fees exposure
• High defense costs
49 Ongoing Public Engagement
50 Ongoing Public Engagement is Critical!
• Keep the community in the know!
• All complete project applications posted online
within 21 days.
• Hold community information meetings for
projects.
• Post project signs onsite.
• Community outreach via electronic notification,
mailed public notices and social media.
51 City Efforts to Date
52 State Law Synopsis City Response
AB 2097 No Parking required within 1/2
mile of major transit stop.
Continuous enforcement of State Law; coordinating the
transportation planning staff on possible parking studies resulting from future AB 2097 requests; establish objective design, development and subdivision standards for affected commercial corridors and specific plan, planning areas that are currently under development.
SB 35 Streamlined Ministerial
Development Review for
Qualifying Housing Projects.
Zone Text Amendment was approved by City Council in January 2022 that addresses processing of SB 35 projects; Continuous enforcement of State Law; establish objective design, development and subdivision standards for affected commercial corridors and specific plan, planning areas that are currently under development.
AB 2011 Housing allowed in Commercial
Zones.
Continuous enforcement of State Law; establish objective design, development and subdivision standards for affected commercial corridors and specific plan, planning areas that are currently under development.
SB 6 Housing allowed in
Commercial Zones
Continuous enforcement of State Law; establish objective design, development and subdivision standards for affected commercial corridors and specific plan, planning areas that are currently under development.
City Efforts to Date Continued
53 State Law Synopsis City Response
SB 9 Two-Unit Subdivision and Urban Lot
Splits.
Ongoing effort. The City Council adopted an Urgency Ordinance and staff is preparing a Zone Text Amendment to address SB 9 requirements.
ADUs Accessory Dwelling Units allowed lots
with single-family and multi-family
structures.
Ongoing effort. The City Council adopted and extended an ADU/JADU Urgency Ordinance to respond to the latest updates from the state. Staff is preparing Zone Text Amendment to address latest ADU requirements.
HAA Housing Accountability Act Ongoing effort. Continuous enforcement of State Law; establish objective design, development and subdivision standards for affected commercial corridors and specific plan, planning areas that are currently under development.
Density Bonus
Law
Projects with affordable housing get
increased density and waiver of
developemnt standards.
City follows State Law; Update of the City's Density Bonus Regulations and Implementing Program are currently underway and expected to be completed by the end of 2023.
Public
Participation
Ongoing civic engagement in all
planning processes (e.g., specific plan
updates, zone text amendments,
etc.), per Burbank2035 General Plan,
Plan Realization Program LU-5: Public
Participation.
Public involvement is critical to the City's political and planning processes, from future public meetings on the potential council districts, to the proposed updates to the Burbank Municipal Code and Zoning Regulations, and updates and preparation of the City's specific plans. Public participation will continue to be part of the current and future planning processes to help people be informed and involved in the development of the City.
Q & A
54 Thank You!
55