California’s Housing
Laws
Barbara E. Kautz
Goldfarb & Lipman LLP
Town of Fairfax Joint Town Council and
Planning Commission Meeting
September 30, 2025
2023-31 Housing Element Town of Fairfax
2023-31 Housing Element
Overview
What is a Housing Element?
• Part of Fairfax General Plan
• One of eight required topics
• Housing
• Land use
• Circulation
• Conservation
• Open Space
• Air Quality
• Noise
• Safety
required
General Plan
topics
8 Town of Fairfax, 2023-31 Housing Element
• Updated on 8-year cycles (now in 6th cycle)
• Key Dates
• Adopted December 13, 2023
• Certified April 2024
• Legal Requirements
• Provide programs to preserve, improve and develop housing • Identify housing needs for all economic segments
• Identify adequate sites to meet share of regional housing needs (RHNA) • Provide a Housing Element that complies with State law • Mandatory review by Dept. Housing & Community Development (HCD) 2023 - 2031 RHNA Allocations
• Sixth Cycle RHNA
significantly higher
than previous
cycles
Fairfax 149 86 71 184 490
Sites Inventory
• Capacity for 598 housing units
• Sufficient to meet 490-unit RHNA
(22% buffer)
• Buffer needed for “no net loss”
provisions of State law
• For example, if a development site
is used for a non-housing purpose,
then a replacement site will be
needed
WHO Zoning Sites
Not just about RHNA
Housing Action Plan calls for (examples):
1. Increase range of housing options for all economic segments • Town Center Plan
• Home sharing / tenant matching
• ADU/JADU awareness
2. Address regulatory, process and market factors that limit housing • Processing and permit procedures
• Zoning and subdivision requirements
• Focused Geological Study in Town Center Area
3. Promote housing for special needs populations
California’s Housing
Laws
Barbara E. Kautz
Goldfarb & Lipman LLP
Town of Fairfax Joint Town Council and
Planning Commission Meeting
September 30, 2025
Presentation Overview
• Introduction: State Housing Policy
• The Housing Accountability Act
• Density Bonuses
• Ministerial Approval in Workforce Overlay Zone
• New! 2025 Housing Bills
• Litigation, HCD, and the Courts
• What Can Cities and Towns Do?
10 State Housing Policy
11 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.”
12 The Housing Accountability Act
13 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.
14 Five-Meeting Limit for Housing Projects
Town 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 Town
• Applies to single-family homes
• Excludes legislative actions (rezonings, etc.)
15 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
16 “Affordable” Project
Includes housing projects with:
• 13% low income;
• 10 % very low income;
• 7 % extremely low income; and
• 10 or fewer units at density of at least 10
units/acre on a site smaller than one acre
17 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
18 What Is an “Objective Standard”?
“Involves no personal or subjective judgment by a public official and verifiable by referring to an external benchmark" 19 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
What Is NOT an “Objective Standard”?
• “If height varies by more than one story between buildings, a transition or step in height is necessary.”
20 Why Isn’t This Standard “Objective”?
• Could be a “transition” of trees and a trellis
instead of a stepback
•Not clear how far upper floors must step back
•Not clear how far along building the stepback
must run
•Not clear how many floors must step back
21 Implications for Project Review
• Strict standard for “objective”
• Subjective standards adopted before 1-1-20 can
be used to apply conditions but cannot:
• Reduce density or effectively deny project.
• Make affordable project infeasible
• Cannot be used on ‘by right’ project.
• BUT: Developers can obtain waivers of most Town
standards
22 California Environmental Quality Act
If project requires
discretionary approval,
CEQA may apply
• Many more exemptions –
no environmental
review
• Mitigation measures can
be imposed if project
not exempt
23 Charter Cities v. General Law Cities
• Legislature has made all recent bills
applicable to both charter & general law
cities
•One charter city success in trial courts re: SB
9 • Now on appeal
• Legislature has adopted new findings to correct
identified problem
24 Density Bonuses
25 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 Town standards • So can qualify for many CEQA exemptions
26 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”
27 Density Bonus Law
• Affordable units required by Town can qualify project for density bonus (Latino Unidos v. County of Napa)
• Example:
• Fairfax requires 15% low (rental) or 20% very low (forsale) income units for projects with more than 3 units • All of these projects are eligible for a density bonus (plus parking reductions, one or more concessions,
and unlimited waivers)
28 Ministerial Approval in
Workforce Overlay Zone
29 Ministerial Approvals in Workforce Overlay Zone
•No CEQA review
•Only objective design review; may impose
conditions
• Applies to:
• Housing element sites designated for lower
income housing if project has 20% lower income
units.
30 Ministerial Approvals in Workforce Overlay Zone
• Subject only to design review by Town staff
• Planning & Building Director reviews and
determines of project is consistent with
objective standards
• Project must be approved if consistent
• Placed on Planning Commission agenda as
consent item, but no PC action is permitted
31 New!
2025 Housing Bills
32 Broad New Infill Exemption (AB 130)
Housing Projects in Town 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 10 du/acre
• Meets certain environmental standards
• Doesn’t demolish listed historic resource
33 Broad New Infill Exemption (AB 130)
Tribal Notification
• Tribes have 60 days to respond
• Consultation must be completed in 45 – 60 days
Town Must Then Approve or Deny Project Within 30
Days after Tribal Notification Complete
• Appeals not included in 30-day limit
• 90-day extension possible
34 Litigation, HCD, and the Courts
35 HCD and Attorney General Enforcement
•HCD 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
acts independently
36 HCD Decertification & the Builder’s Remedy
•HCD has authority to “decertify” housing element
if not implemented as promised
• January 2026 review of ADU production
• Would subject Fairfax to the “builder’s remedy”
• Sites west of SFD could be built with “base density”
of 65 du/acre; could be doubled with density bonus
• Project could qualify for new infill exemption
• Must be approved “as proposed by the applicant”
37 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
38 Housing Cases in General
•Courts:
• Generally very pro-housing
• Uphold housing approvals
• Overturn denials
•Town 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
39 What Can Cities and Towns Do?
40 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
41 Project Review
• Review Under CEQA, If Not Exempt
• Analysis of environmental issues required
• Town may impose feasible mitigation measures
• Enforce Health & Safety Standards
• Enforce State & Federal Law
• Protect Historic Sites If Possible
42 Thank You and Q&A/Public
Comment
43