Aesthetics have never been at the top of the legislature’s priorities. But provisions in two key housing bills put serious pressure on cities and counties to clarify and codify the types of design they want.
Cities and counties in California have long used fluid design standards as a basis for discretionary review, allowing planning commissioners and elected officials to reduce a project’s density or deny it altogether if subjective design standards are not met. But Senate Bill 35 of 2019 and recent amendments to the Housing Accountability Act of 1982 put serious pressure on cities and counties to clarify and codify the types of design they want.
Developers have often complained that discretionary review – especially involving design standards -- serves largely to impede projects and enable communities to exact concessions from developers in the name of aesthetics. But these two bills eliminate many forms of discretionary review, requiring localities to approve many types of residential projects so long as the projects conform with existing plans and regulations. Both require localities to approve projects so long as they conform to “objective design standards” that localities previously adopted into their plans and codes. If developers find that design “standards” are too vague or subjective may have grounds to sue if their projects are denied.
“SB 35 specifically and HAA by implication essentially replace any other findings that a city or county might have with the need to find a violation of an objective standard to deny a project,” said Barbara Kautz, a longtime city planner who now practices land-use law with Goldfarb & Lipman. In so doing, they prevent cities from imposing ad hoc conditions or mitigation measures on projects based on objections to aesthetics.
"With the Housing Accountability Act, a city can still apply conditions of approval,” said Kautz. “But the conditions can’t deny the project or result in a decrease in density. A city could still deny a bright green building, for instance.”
Karen Parolek, principal at Opticos Design, said discretionary review amounts to an inherently unfair process. "Discretionary review has been a huge problem with racial disparity,” she said, because it favors developers—often non-minority—that have the money and expertise to navigate a discretionary process. "Small developers are really at a disadvantage because it costs so much to work their way through the system."
SB 35 requires cities to determine whether a project conforms with 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 HAA requires that a lead agency may not reduce a project’s density so long as it conforms to objective standards as laid out in a previously adopted zoning code.
These laws mean one of two things for cities: Either they radically revamp their design standards, or they have to trust that their existing codes give developers sufficient guidance. Otherwise, if codes are too loose, cities will have to stomach whatever designs developers come up with little or no discretionary recourse.
"When you add the state coming in and saying that the design standards need to be objective design standards and you need to get rid of discretionary review, communities are up in arms out of that because there’s no way to predict what gets built,” said Parolek.
The laws have set off a minor frenzy among cities, many of which want to influence design but are not accustomed to strict design standards contained in their codes.
“Cities are aware that they can’t deny or reduce density of a project unless it conflicts with some objective standard,” said Kautz. “Cities are trying very hard to develop objective standards.”
For cities that want to be proactive, the laws may present an opportunity for planners to lead serious discussions about communities’ preferences, beyond vague and ever shifting notions of “neighborhood character.” Many cities are using planning grants provided by Senate Bill 2 to fund the drafting of objective design standards. (See prior CP&DR coverage.)
Planners in Marin County have, with the assistance of an SB 2 planning grant, been proactive about reviewing and updating their design standards.
“We reviewed our multifamily design guidelines and some of them are objective, but, honestly, some of them aren’t,” said Jillian Zeiger, a planner at the Marin County Community Development Agency.
“The multifamily guidelines did not contemplate the type of regulatory changes we’re now seeing….we have room to improve going forward, and the Housing Accountability Act gives us further impetus to do that,” said Brian Crawford, director of the Marin County Community Development Agency.
Marin County’s approach is, in collaboration with cities, to draft a “menu” of design standards that its component cities can chose from and adopt according to their individual circumstances as model ordinances. Though the a draft of the county’s regulations has not been released yet, county planners expect to present a dozen or so “menu items” to cities.
“There's a certain amount of trepidation concerning the lack of discretionary review,” said Brian. “Part of our job as planners is to educate our stakeholders and elected officials about the importance of preparing objective design standards that would prevent the types of worst-case scenarios that folks might conjure up when they read the legislation.”
“It's been really beneficial so far to work with multiple jurisdictions," said Zeiger. "It’s nice to have a variety of regulatory types that everyone can use. Speaking with my designer hat, when you are given constraints, that makes your designs better.”
Parolek said that objectivity sometimes requires more of a shift in mentality than an actual shift in policy. For instance, whereas many codes dictate minimum setbacks, Parolek suggested that a more objective – and therefore more predictable – standard could entail “build-to” lines, in which buildings would be required to build up to a certain point rather than allowed to build anywhere beyond a certain point.
“We find that that build-to line is a great example of predictability that people are looking for, which is what eventually helps them let go of discretionary review,” said Parolek.
Build-to lines could differ based on neighborhood type. A main street might require building right up to the property line while a block with multifamily residential might have a built-to line of five or ten feet. Standards could also dictate porches or stoops. Likewise, regulations might require buildings on main streets to include entrances that directly face the street.
Objective standards can also account for different typologies. Parolek suggested that standard regulations based on floor-to-area ratio do not resonate with stakeholders.
"That helps us get away from using density and FAR, which are so unpredictable," said Parolek. “Nobody has any idea what that means.”
Her firm has recommended that cities adopt different standards for different residential building types such that buildings of different unit densities--duplexes, triplexes, fourplexes, etc.—could each have their own design standards even if they are all governed by the same FAR.
Architectural styles and aesthetics may prove trickiest for cities. Parolek said that cities might want to steer clear of dictating aesthetics, lest regulations lead to unintended consequences. She recommended that cities instead draft design guidelines and encourage developers to follow them voluntarily.
“There are the things that (can be) required, like where the building goes and how high the building can be,” said Parolek. “And then there are things like eave details, trim details, and wall materials that we tend to be more nervous about including in the zoning standards themselves.”
Cities’ level of nervousness may depend on how much they trust their local developers.
“A lot of it will depend on the developer or architect and their design for quality design….you’re putting it in their hands,” said San Rafael Planning Manager Raffi Boloyan.
The City of San Rafael has been working on objective standards even longer than the county has, with halting progress. Boloyan said that staff originally discussed comprehensive regulations, “kind of throwing the kitchen sink at it.” The city’s design review board, though, has recommended that regulations be more targeted according to the city’s most important priorities.
“Pick the 4-5 top things and focus on those—whether it’s form, pedestrian scale, materials, and landscaping, and focus on that rather than trying to do every single criterion,” said Boloyan.
Though San Rafael’s process is fairly far along, its final regulations may yet take a while. And many, if not most, other cities statewide haven’t even begun. The adoption of the laws has put cities on a very tight timeline.
“What is and was troubling about this is that the penalty came before the opportunity to establish the objective standards and get them in place,” said Diana Varat of Richards, Watkins & Gershon, which represents many cities.
It promises to be a delicate process for many cities — and one that runs contrary to many approaches to zoning.
"What becomes a challenge with objective design standards is they are by nature more prescriptive – more black-and-white,” said Ken Bernstein, principal city planner with City of Los Angeles. "For some cities there may be a temptation to set the bar that might be counterproductive to the intent of state law.”
Indeed, the elevated importance of objective standards might tempt cities to write overly detailed codes in an attempt to either prescribe every element of design or to confound developers with seemingly unattainable standards.
Kautz said that cities are going to have to strike a balance been predictability and flexibility. Developers may shy away entirely from standards that are too rigid. But standards that provide too many options — or that might be deemed subjective by a court — may result in undesirable projects that cities cannot fight.
“It’s actually not hard to have very specific design standards,” said Kautz. “I’m not sure that that’s what the development community wants.”
Kautz cautioned, though, that, at least in the case of the HAA, cities can still make aesthetic demands. They simply cannot deny a project outright or reduce its density over design considerations.
Parolek suggested that the drafting of objective design standards can give communities the opportunity to articulate genuine desires and to coalesce around shared aesthetic visions.
"We go into the community and say, 'what do we want to have happen here?’” said Parolek. "Not 'what are we trying to prevent?' but 'what is our vision for the kind of place we’re trying to create here?'"
The processes also need not be burdensome as long as a community can reach consensus on whatever it considers the major design issues to be.
“Do an analysis of your discretionary review,” said Parolek. "What are the things that come up in discretionary review most often, and what are the ways we can codify them?”
Even if stakeholders can reach consensus on what a city’s code should say, though, there’s no guarantee that courts will agree.
Varat cautioned that "the language of how you craft an objective standard is so important. If you craft what you think is an objective standard but doesn’t actually impose the standard on the project, you potentially jeopardize the applicability of the standard.”
“If you want a standard to be truly implementable and enforceable, the language has to be very clear,” said Varat. “I think that helps both the developer and the municipality.”
Even so, cities need to be prepared for developers to push back against standards they don’t like — even if conformance would mean approval.
“I think a lot of it will be litigated,” said Kautz. “A good attorney can make any objective standard seem not objective.”
Ken Bernstein, Principal City Planner, Los Angeles Dept. of City Planning, Ken.Bernstein@lacity.org
Brian Crawford, Director, County of Marin, Community Development Agency, email@example.com
Barbara E. Kautz, Partner, Goldfarb & Lipman, firstname.lastname@example.org
Karen Parolek, Principal and CFO, Opticos Design, email@example.com
Raffi Boloyan, Planning Manager, City of San Rafael, firstname.lastname@example.org
Diana Varat, Of Counsel, Richards Watson Gershon, email@example.com
Jillian Zeiger, Planner, County of Marin, firstname.lastname@example.org