Moore, Tania
From: Dylan Casey < [email protected]>
Sent: Tuesday, April 5, 2022 11:11 AM
To: [email protected]; CITY COUNCIL
Cc: Gregory Magofña
Subject: Comment Letter on Agenda Item 25
Attachments: Huntington Beach SB 9 Letter.pdf
Dear City Council,
I would like to submit the attached letter commenting on Agenda Item 25, the proposed SB 9 Ordinance extension.
Thank you for your consideration.
Dylan Casey
Executive Director, California Renters Legal Advocacy and Education Fund www.carlaef.org
SUPPLEMENTAL
COMMUNICATION
Meeting Date: 4/5,2022
Agenda Nom No: 25(22-244)
1 California Renters Legal Advocacy and Education Fund
360 Grand Ave, #323
CARLA Oakland, CA 94612
[email protected]
April 5, 2022
City of Huntington Beach
2000 Main Street
Huntington Beach, CA 92648
Re: SB 9 Ordinance
Dear Huntington Beach City Council and City Attorney,
The California Renters Legal Advocacy and Education Fund (CaRLA) submits this letter to inform the Huntington Beach City Council that they have an obligation to abide by all relevant state housing laws when amending the Huntington Beach Municipal Code pertaining to regulations for the subdivision and development of qualified Senate Bill 9 properties. The California HOME Act (SB 9) mandates local jurisdictions, such as the City of Huntington Beach, to ministerially approve "without discretionary review or a hearing" two residential units within a single-family residential zone and the subdivision of one lot into two in any single-unit dwelling zone that satisfies the applicability requirements outlined in the statute (see, Gov.
Code § 65852.21(a)(1)-(6), 66411.7(a)(1)-(3)). Huntington Beach's proposed ordinance is in violation of SB 9.
The reasoning behind this level of state intervention in local development policy is clear. To address our state's massive housing shortage, we must find every way we can to create new homes. SB 9 is intended to support the increased supply of homes by encouraging the building of smaller houses on existing or subdivided lots, thereby contributing to the creation of more equitable and inclusive neighborhoods.
I. Affordability Requirements Fail to Comply with State Law The California HOME Act was enacted to provide new homes for Californian families across the state. It is abundantly clear that the City Council's proposed ordinance to implement the law is designed to prevent the creation of any new homes at all. The ordinance would require all new homes resulting from an SB 9 Development Project to be subject to an affordable housing restriction. If more than one unit is developed on an SB 9 lot, the ordinance would require each unit to "be rented or leased at a maximum rate affordable to low-income tenants, if they are rented" (Sec. 1-237.12(G)). These so-called inclusionary policies would in fact result in no new housing being developed under the law, further perpetuating Huntington Beach's exclusive housing and land use policies. Further, these requirements are unlawful under SB 9 and state law governing inclusionary housing requirements.
First, the affordability restrictions are clearly infeasible, and fail to offer required alternatives for compliance. Huntington Beach's own feasibility analysis for its generally applicable affordable housing program identified a 10 percent low-income requirement as the rough limit on a feasible affordable housing requirement.! This reflects the consensus among surrounding cities in Orange County, where inclusionary requirements range from 10 to 20 percent. There is no question that imposing a 100 percent mandate on SB 9 developments, with no alternatives for compliance, would be completely infeasible. This ordinance therefore violates the state law standards for inclusionary housing ordinances. (Cal. Gov. Code SS 65850-65850.01).
Second, SB 9 requires that local objective standards must not "physically preclude" the development of two 800 square foot units on a qualifying property. (Cal.
Gov. Code § 65852.21(b)(2)(A)). While affordability restrictions would generally not be understood to physically preclude development, when taken as far as the city proposes here they would operate as a de facto ban on the development of a duplex in Huntington Beach. A total ban on state-mandated housing development is clearly unlawful under the newly created law.
If the City Council is interested in complying with state law and making Huntington Beach a more inclusive, affordable and accessible city, it should amend the proposed ordinance to remove this de facto ban on SB 9 developments.
II. Unlawful Restrictions on ADUs and JADUS
When the state legislature enacted SB 9 it intended the law to work in harmony with the state's existing statewide Accessory Dwelling Unit (ADU) and Junior Accessory Dwelling Unit (JADU) standards. Statewide ADU laws are mandatory, requiring local governments to approve new ADUs on both single-family and multifamily properties. (Gov. Code Section 65852.2(e)).
Recognizing that combining authority of SB 9 and ADU laws could have unintended consequences, the legislature carved out two exceptions from ADU laws in the new bill. First, cities are not required to permit ADUs or JADUs on properties that were created through an SB 9 lot split and use SB 9 to develop duplexes on the newly https://www.huntingtonbeachca.gov/files/users/economic_development/Developer_w_atta chments1_ooo.pdf
California Renters Legal Advocacy and Education Fund - [email protected] 360 Grand Ave, #323, Oakland, California 94612
created lots.? Second, if a property is created through an SB 9 lot split, a city is not required to allow more than two units on each new parcel notwithstanding state ADU and JADU laws. Aside from these exceptions, Huntington Beach is required to follow all state ADU and JADU requirements on properties created or developed under the provisions of SB 9. The law explicitly states:
"..'unit' means any dwelling unit, including, but not limited to, a unit or units created pursuant to Section 65852.21, a primary dwelling, an accessory dwelling unit as defined in Section 65852.2, or a junior accessory dwelling unit as defined in Section 65852.22" (Gov. Code Section 66411.7(j) (2)).
Therefore, if developing an SB 9 duplex without a lot split, current ADU and JADU regulations continue to apply pursuant to Government Code Sections 65852.2 and 65852.22. If using SB 9 with a subdivision, a maximum of two units will be allowed, in any combination, inclusive of single-family homes, ADUs and JADUS pursuant to Government Code sections 65852.2 and 65852.22. Under state law, a total of four units (a two-unit project on each lot) can be built on what was previously a single-family residential parcel.
Huntington Beach's proposed ordinance would restrict the maximum number of units that can be built on a subdivided lot using SB 9. The proposal states:
"...accessory dwelling units (ADUs) on the site shall be prohibited" (Sec. 1-237.10(C)(2)). Under SB 9, local governments are only exempt from the state law mandate to permit ADUs and JADUs if a property has completed a lot split and used SB 9 to develop a duplex (Gov. Code Section 66411.7(j)(1)). Thus, state law requires that Huntington Beach allow for the construction of ADUs and JADUs on lots resulting from subdivisions unless a duplex is built on the subdivided lot.
III. Development Standards Applied to Ministerial Developments Must be Objective
Huntington Beach's proposed ordinance applies development standards specifically to housing developments taking advantage of SB 9. State law does give this authority to local governments, but the authority is subject to certain limitations.
First, these development standards cannot physically preclude the development of a 2 "Notwithstanding Section 65852.2 or 65852.22, a local agency shall not be required to permit an accessory dwelling unit or a junior accessory dwelling unit on parcels that use both the authority contained within this section and the authority contained in Section 66411.7." (Section 65852.21(f)).
3 "Notwithstanding any provision of Section 65852.2, 65852.21, 65852.22, 65915, or this section, a local agency shall not be required to permit more than two units on a parcel created through the exercise of the authority contained within this section." (Section 66411.7(j)(1)).
California Renters Legal Advocacy and Education Fund - [email protected] 360 Grand Ave, #323, Oakland, California 94612
duplex with two 800 square foot homes. (Section 65852.21(b)(2)(A)). Second, all of the development standards must qualify as objective standards as defined under the statute. (Section 65852.21(b)(1), (i)(2)).
The proposed ordinance requires that SB 9 developments "shall be architecturally consistent with the existing residential dwelling" (Sec. 1-237.12(E)(5)).
This is clearly not an objective standard. Both the California Department of Housing and Community Development, and the California court have ruled against standards involving lesser degrees of personal, subjective judgment than trying to judge architectural style. (See, e.g. (California Renters Legal Advocacy & Education Fund v. City of San Mateo, 68 Cal.App.5th 820 (2021)).
As you are well aware, California remains in the throes of a statewide crisis-level housing shortage, and new housing is a public benefit. By abiding by SB 9, Huntington Beach will bring increased tax revenue, new customers to local businesses, decarbonization in the face of the climate crisis, but most importantly, it will reduce the displacement of existing residents into homelessness or carbon-heavy car commutes. Prohibiting ADU and JADU units on subdivided lots will inhibit Huntington Beach's opportunity to construct badly needed housing. We ask that the Council amend the ordinance to bring the proposal into compliance with state law, as outlined in this letter.
CaRLA is a 501(c)3 non-profit corporation whose mission includes advocating for increased access to housing for Californians at all income levels, including low-income households. You may learn more about CaRLA at www.carlaef.org.
Sincerely,
Dylan Casey
Executive Director
California Renters Legal Advocacy and Education Fund
California Renters Legal Advocacy and Education Fund - [email protected] 360 Grand Ave, #323, Oakland, California 94612