added.) WoodVide¶V Planning Director then identified the entire Town of Woodside as habitat for a protected species in her January 27 memorandum.
There is no valid basis to claim that the entirety of Woodside is a habitat for mountain lions, a candidate for protection under the California Endangered Species Act. Habitat is land that has the capacity to support that species, including providing food and shelter. Land that is already developed²with, for example a single-family home²is not, by definition, habitat. That mountain lions appear in Woodside from time to time does not make any of its individual parcels mountain lion habitat. Rather, it demonstrates the range of the mountain lion²where the species may be found in its lifetime. In oWheU ZoUdV, ³habiWaW´ is a separate concept fUom ³Uange.´ The enclosed map, by the California Interagency Wildlife Task Group of the California Department of Fish and Wildlife, shows that the range of mountain lions includes the vast majority of the San Francisco Bay Area. That breadth does not make nearly every single parcel in the San Francisco Bay Area a habitat for mountain lions, nor could the range of mountain lions, or any endangered species, be XVed Wo jXVWif\ a local goYeUnmenW¶V aWWempW Wo caWegoUicall\ pUohibiW a claVV of housing development within its local boundaries.
In addition, any exemption under SB 9 requires examination of the attributes of the individual parcel. (Gov. Code, §§ 65852.21, subd. (a)(2), 66411.7, subd. (a)(3)(C).) If a proposed housing development or a lot split under SB 9 is on a parcel that is indeed a habitat for a protected species, however unlikely that may be, a local agency can support that determination with substantial evidence. Of course, the memorandum cites to no evidence indicating that every individual SB 9-eligible parcel in the Town is habitat for mountain lions.
Beyond SB 9, we note that Woodside¶V oUdinance and memoUandXm ma\ implicaWe and/or violate other state housing production laws. We leave that inquiry to the Department of Housing and Community Development, who may be contacting you shortly.
In summary, WoodVide¶V attempt to exempt itself from SB 9 appears entirely unjustified.
Passing an ordinance ostensibly in the name of wildlife protection, without more, cannot exempt Woodside from state housing laws.
B. WRRdVide¶V Urgency Ordinance Does Not Bear a Real and Substantial Relationship to the Welfare of Those It Impacts
Under the California Constitution, local restrictions that limit the development of housing must bear a real and substantial relationship to the welfare of those whom they affect. (Associated Home Builders etc., Inc. v. City of Livermore (1976) 18 Cal.3d 582, 607.) To satisfy this requirement, any locally imposed limitation on growth must confer a net beneficial impact to the entire region affected by the limitation. (City of Del Mar v. City of San Diego (1982) 133 Cal.App.3d 401, 413.)
By prohibiting project applicants whose properties are not actually mountain lion habitat from supplying more housing, Woodside is deliberately attempting to shutoff the supply of new housing opportunities within its borders. WoodVide¶V policy is presumed to impact the regional February 6, 2022
supply of housing. (See Evid. Code, § 669.5, subd. (a).) Ironically, by restricting housing production, implementing the policy would increase the likelihood of exurban sprawl that will adversely affect the habitat of mountain lions. This policy does not confer a net beneficial impact on the regional welfare. It can only be assumed that the ordinance is intended to undermine the LegiVlaWXUe¶V efforts to combat the crisis-level housing shortage.
As outlined above, we have concluded that Woodside¶V polic\ abUogaWing Whe applicaWion of SB 9 appears to be in violation of Government Code sections 65852.21, 66411.7, and the California Constitution. We request that you address this matter at the Town Council meeting on February 22, 2022 (if not earlier), amend the urgency ordinance to be consistent with state law, and withdraw the January 27 memorandum.
Sincerely,
MATTHEW T. STRUHAR
Deputy Attorney General
For ROB BONTA
Attorney General
From: Miriam Morris
To: Public Comment
Subject: Public Comment Historic Neighborhood District Initiative Date: Wednesday, July 20, 2022 1:38:13 PM
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Dear City Council Members,
It is possible that the August 10 regular council meeting will include consideration of a proposed ordinance, “The Historic Neighborhood District Initiative.” Please refuse to consider this item. It is best to be put forth as a ballot initiative, as the proponents claimed was their intent as they collected signatures throughout town.
Some things to consider:
1. Within its text, the initiative admits it is trying to circumvent state law, thereby setting up a future legal skirmish with the CA attorney general.
2. The signatures were collected without a copy of the initiative, and misrepresented both the initiative and the current SB9 law as implemented by Nevada City.
3. By making historic neighborhood overlays with homes built from 1850s through 1972 deemed historic, it creates too restrictive government oversight on homeowners. By declaring virtually all neighborhoods historically important, the initiative dilutes the importance of legitimate historic resources.
4. The initiative suffocates the ability of the city to evolve to meet the times. It works against climate change objectives by promoting development at the edges of the city, instead of creating more walkability, less dependence on cars. Infill decreases the need for building new infrastructure.
5. The city has put in place Objective Design Standards that will ensure ministerially approved development will fit in with neighborhoods.
6. City laws have to demonstrate they are protecting the community’s heath, safety, and general welfare. This initiative is not about those goals, it is about protecting privilege and resisting change.
7. Truly historic homes that are valuable historic resources can be protected through listing with the California Register of Historic Resources.
8. In the unlikely event there are harmful effects from SB9, the city has the ability to enact emergency ordinances.
Thank you for your attention on this important matter.
Sincerely,
Miriam Morris
Nevada City
YIMBY Law
57 Post St, Suite 908
San Francisco, CA 94104
[email protected]
2/15/2022
Dear Local Municipality,
YIMBY Law is a 501(c)3 non-profit corporation, whose mission is to increase the accessibility and affordability of housing in California. YIMBY Law sues municipalities when they fail to comply with state housing laws. YIMBY Law has become aware of your municipality’s ordinance or other policy which places restrictions on the 2021 by-right duplex and lot split legislation, SB-9; we have reason to believe you are in violation of state law. Should you fail to follow the law, YIMBY Law will not hesitate to pursue any and all available means to ensure the law is followed.
Senate Bill 9 and a number of other state housing laws allow a limited amount of local discretion to regulate housing developments. While cities are permitted to apply various objective standards to SB-9 developments, those standards must not contravene other housing laws. Your jurisdiction may be in violation of one or several other state housing laws because of the nature of your urgency and/or regular ordinance or use of other local police power. These laws include, but are not limited to SB-9 itself, the Housing Crisis Act of 2019 (SB-330), state ADU law, or state laws which cover urgency ordinances used to restrict multifamily housing developments. Violations of SB-330, ADU law, and Housing Element law have also been designated by the legislature to fall under the authority of HCD, which may refer cases to the Attorney General’s office for resolution.
Additionally, your regulations may be considered to be constraints to housing, or barriers to development of SB-9 units by the Department of Housing and Community Development, which will burden your efforts to achieve a certified, legally compliant Housing Element, should you wish to include potential SB-9 unit capacity in your 6th RHNA Cycle Housing Element. Having a legally non-compliant or uncertified Housing Element during the 6th RHNA cycle will also expose your jurisdiction to various limits on your local authority to restrict housing developments, including loss of authority to deny zoning non-compliant housing projects, or even the possibility of loss of land use authority altogether.
Violations of SB-9
The California legislature intended SB-9 to be a significant change to the approval process for specified lot splits, single family home, and two-unit developments. While the legislature has allowed cities to create local implementation ordinances, this was not an open invitation for cities to subvert the law. SB-9 is clear that when parcels or developments meet certain specified standards, they shall be approved ministerially. Cities may not invent new standards that are more restrictive than the state allows if those standards have the effect of preventing a development application that otherwise meets the statewide standards from being approved.
Under SB-9, local agencies must provide a ministerial approval process for any proposed 1 housing development consisting of one or two residential units within a single-family residential zone, and for any proposed subdivision of an existing parcel within a single-family residential zone into no more than two parcels. (Gov. Code, §§ 65852.21, subd. (a), 66411.7, subd. (a).) Both of these provisions apply to parcels satisfying certain requirements identified in section 65913.4 of the Government Code. Examples of local implementation ordinances or policies which may violate the provisions of SB-9 include regulations that would physically preclude a lot split or two-unit development applications that meets all of the state’s requirements, as well as regulations which would expand on the scope of the policies which state law provides exclusions for, such as those found in section 65913.4.
Violations of SB-330
Government Code Section 66300(b)(1), commonly known as the no-net-loss provision of the Housing Crisis Act of 2019, or SB-330, makes it clear that affected jurisdictions cannot reduce the intensity of land use without a commensurate upzoning:
(b) (1) Notwithstanding any other law except as provided in subdivision (i), with respect to land where housing is an allowable use, an affected county or an affected city shall not enact a development policy, standard, or condition that would have any of the following effects:
(A) Changing the general plan land use designation, specific plan land use designation, or zoning of a parcel or parcels of property to a less intensive use or reducing the intensity of land use within an existing general plan land use designation, specific plan land use designation, or zoning district in effect at the time of the proposed change, below what was allowed under the land use designation or zoning ordinances of the affected county or affected city, as applicable, as in effect on January 1, 2018, except as otherwise provided in clause (ii) of subparagraph (B) or subdivision (i). For purposes of this subparagraph, “reducing the intensity of land use” includes, but is not limited to, reductions to height, density, or floor area ratio, new or increased open space or lot size requirements, new or increased setback requirements, minimum frontage requirements, or maximum lot coverage limitations, or any other action that would individually or cumulatively reduce the site’s residential development capacity.
This no-net loss provision of SB 330 limits the potential SB 9 project development standards the jurisdiction may adopt as follows:
• The jurisdiction cannot adopt standards such as greater setbacks, a lower height limit, lower Floor Area Ratio, or greater open space requirements for units built under SB 9 than apply to single-family residences constructed within the same zoning district. • The jurisdiction can continue to impose existing objective development standards (setbacks, height, parking space size requirements, etc.) as long as those standards don’t conflict with the mandatory SB 9 standards or preclude the construction of SB 9 units. • The jurisdiction can adopt new development standards as long as those standards don’t reduce the setbacks, height, floor area ratio, or other standards that would reduce the building YIMBY Law, 57 Post Street, Suite 908, San Francisco, CA 94104 2 envelope per parcel from below what was allowed in the R-1 Zoning Districts as of January 1, 2018.
Abuse of the Urgency Ordinance Process
Cities cannot make the meritable, substantial findings necessary to justify an urgency ordinance that would be required in order to make zoning ordinance modifications which restrict construction of housing. Gov. Code section 65858 allows cities to pass interim zoning ordinances without following the procedures otherwise required for zoning ordinances, with certain limitations. See below.
Government Code Section 65858 (c) The legislative body shall not adopt or extend any interim ordinance pursuant to this section unless the ordinance contains 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. In addition, any interim ordinance adopted pursuant to this section that has the effect of denying approvals needed for the development of projects with a significant component of multifamily housing may not be extended except upon written findings adopted by the legislative body, supported by substantial evidence on the record, that all of the following conditions exist:
(1) The continued approval of the development of multifamily housing projects would have a specific, adverse impact upon the public health or safety. As used in this paragraph, a “specific, adverse impact” means 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 that the ordinance is adopted by the legislative body. (2) The interim ordinance is necessary to mitigate or avoid the specific, adverse impact identified pursuant to paragraph (1).
(3) There is no feasible alternative to satisfactorily mitigate or avoid the specific, adverse impact identified pursuant to paragraph (1) as well or better, with a less burdensome or restrictive effect, than the adoption of the proposed interim ordinance.
In California Charter Schools Association v. City of Huntington Park, et al., 35 Cal. App. 5th 362 (2019) Huntington Beach attempted to pass an urgency ordinance placing a moratorium on new charter schools which contained findings that a current and immediate threat to public health existed because, among other reasons, Huntington Park had received “numerous inquiries and requests for the establishment and operation of charter schools,” “the HPMC did not have development standards specifically for charter schools.” The court of appeal found that the facts presented did not meet the urgency standard under section 65858.
Of particular note, cities cannot meet the requirements to lawfully extend an urgency ordinance limiting SB-9 because they do not have objective written health and safety YIMBY Law, 57 Post Street, Suite 908, San Francisco, CA 94104 3 standards that SB-9 would negatively impact that cannot be mitigated. Cities also already have the power to disapprove projects which would cause specific adverse public health or safety impacts; there is no urgency in limiting development for public health and safety which cities already have the power to limit.
ADU Law
In recent years the California state legislature has strengthened the rights of property owners to construct Accessory Dwelling Units, or ADUs, by limiting local jurisdictions' ability to deny these housing projects. Government Code section 65852.2(e) specifies that local jurisdictions “shall ministerially approve an application for a building permit” for “One accessory dwelling unit and one junior accessory dwelling unit per lot” if specified conditions are met.
While SB-9 specifies that cities may restrict ADUs or Junior ADU development in situations where both the lot split provision and ministerial duplex provisions of the law are being utilized, cities are still required to follow ADU state ADU law by ministerially permitting ADUs in situations where only one of the two provisions has been utilized:
GC 65852.21(f) 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.
Cities may not create new restrictions to ADU development that would be in conflict with the law, such as by restricting the permitting of ADUs on an unsplit lot when state law requires a city to allow both an ADU and a Junior ADU to be constructed on that unsplit lot by-right.
Barriers to Development
Many cities across California are currently updating their Housing Elements of their general plans to meet the requirements of the 6th Cycle Regional Housing Needs Allocation process, which involves a certification from the California Department of Housing and Community Development (HCD). Local restrictive provisions which, though they may be legal to implement, can be barriers to development. Such provisions might include, but are not limited to: utility connection moratoriums, front entry requirements, parking requirements, trees and bushes requirements, affordable housing program deed-restrictions, owner-occupancy restrictions, tenancy in common or condo-creation restrictions, basement restrictions, or other cumbersome, complicated design requirements which impact feasibility of projects.
HCD describes the statutes (Government Code sections 65583(a)(5) & (6)) which require cities to address constraints in their housing development on their website [https://www.hcd.ca.gov/community-development/building-blocks/index.shtml]:
“The housing element must identify and analyze potential and actual governmental constraints to the maintenance, improvement, or development of housing for all income levels, including housing for people with disabilities. The analysis should identify the specific standards and processes of these YIMBY Law, 57 Post Street, Suite 908, San Francisco, CA 94104 4 constraints and evaluate their impact on the supply and affordability of housing. The analysis should determine whether local, regulatory standards pose an actual constraint and must also demonstrate local efforts to remove constraints that hinder a jurisdiction from meeting its housing needs.” Should a city approve Objective Standards such as those listed above, or other land use policies which increase barriers to development, these Standards need to be accounted for in the City’s Housing Element if the City is planning to rely on any SB-9 unit production to meet its Sixth Cycle Regional Housing Needs Allocation (RHNA) requirements. Failure to do so will likely result in the City’s housing element not being certified by HCD, and the lack of local control which will follow. Such lack of local control could include loss of discretion to deny zoning non-compliant housing applications, or even loss of local land use authority entirely.
Conclusion
Housing advocates, the legislature and the governor believe in the spirit of this SB-9: to create more housing for every day Californians and easing housing costs overall. When cities undermine the law, they are putting these opportunities further out of reach.
When cities break the law, it is our mission to ensure that justice prevails. YIMBY Law will not hesitate to take legal action to ensure that the law is enforced. We are also reporting law violations to the Attorney General’s office, who has a new team dedicated to housing law enforcement.
I am signing this letter both in my capacity as the Executive Director of YIMBY Law, and as a resident of California who is affected by the shortage of housing in our state.
Sincerely,
Sonja Trauss
Executive Director
YIMBY Law
YIMBY Law, 57 Post Street, Suite 908, San Francisco, CA 94104 5