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Bills Seek to Streamline Approvals, Tighten Up Housing Element Lists

Gov. Jerry Brown’s idea of by-right approval of certain affordable housing projects may have gone by the wayside, but the Legislature is teeing up a whole range of possible policy changes that would create more carrots and sticks to local governments in California to allow affordable housing – including one by Assemblymember Richard Bloom, D-Santa Monica, creating a state board that could override local decisions in certain circumstances. (Bloom has introduced 11 housing bills altogether.)

At the core of the debate is the role that local governments play in creating or preventing housing. “The League of California Cities would say, ‘We don’t produce housing so don’t hold us accountable’,” said Marina Wiant of the California Housing Coalition at the recent Housing California conference in Sacramento. “But what we’re talking about in terms of enforcement is mostly, whether a site is actually developable or whether they are denying projects that otherwise meet the criteria.

There’s no question that 2017 is shaping up as the year of housing in Sacramento. By far the two most bills getting the most attention in Sacramento are part of Senate Pro Tem Kevin Deleon’s “infrastructure package”: SB 2 (Atkins), which would create a $300 million permanent source of funding for affordable housing by creating a $75 recording fee on real estate transactions, and SB 3 (Bell), a $3 billion housing bond that would go on the 2018 ballot. Brown is receptive to the first bill but hostile to the second because it would affect the state general fun.

But there are more than 100 bills on housing floating around Sacramento right now and a lot of them would either induce or pressure local governments to allow more housing generally and affordable housing in particular. Several bills would seek to overturn or mitigate the effect of recent court decisions. Here’s a rundown by topic:

Tightening Up Housing Element Site Lists

 The list of sites contained in every local government’s Housing Element is supposed do be one of the keys to increasing housing supply. But state officials are concerned that the housing element lists aren’t “real” and include many sites that aren’t really in play or won’t become available anytime soon. Both Senator Nancy Skinner of Berkeley and Assemblymember Evan Low of Campbell have bills in the hopper that would try to tighten up the lists.

“How do we make sure the housing element process from start to finish is a real process and not a paper one,” commented Brian Augusta of California Rural Legal Assistance at the Housing California conference. “Are these real sites? Are they capable of being developed?”

SB 469, Skinner’s bill, would simply prohibit a local government’s list of sites from providing less housing than is called for in the housing element. It would also require written findings if a local government approves a project below the capacity called for in the housing element.

AB 1397, Low’s bill, would require parcels on the site list to have sufficient infrastructure or be included in a mandatory plan to develop that infrastructure within three years.

Streamlining Infill Permit Processing

SB 35 (Weiner) is the big by-right bill. The bill would require by-right approval of multifamily and accessory dwelling projects in urban infill locations if the jurisdiction is falling far short of its regional housing targets. However, the bill requires the project to be built with prevailing wage – a condition that might discourage developers from pursuing such projects.

AB 73 (Chiu) would allow “zoning incentive payments” from the state to local governments that create “housing sustainability districts” that permit residential development by right. The districts would have to meet a variety of criteria, including a minimum of eight units per acre for single-family development and 20 units per year for mult-family development as well as exemption from any moratoria imposed in the city. Payment to cities in exchange for housing production has been successful in the past.

SB 540 (Roth) would similarly create “workforce housing opportunity zones” that would form the basis of a specific plan that would have environmental work done up-front and then permit residential development by-right.

AB 30 (Caballero) would specifically authorize local governments to create an infill specific plan that would become an overlay zone with by-right development, but only in “underperforming” infill locations.

State Override of Local Affordable Housing Denials

Undoubtedly the most controversial of the housing bills will be AB 1585 (Bloom), which would adopt Massachusetts’s “Chapter 40B” system of permitting state overrides of local decisions on affordable housing. The Bloom bill would create an “affordable housing zoning board” in every local jurisdiction (with planning commissioners serving ex-officio) and a housing appeals board at HCD that would rule on appeals when affordable projects are denied. The affordable housing zoning board would be alternative process that developers could choose to move through rather than the conventional project approval process.

Inclusionary Housing 

Two bills would codify the ability of local governments to adopt inclusionary housing ordinances requiring residential developers to set aside a certain percentage of their units for affordable housing.

The issue has been contentious ever since 2009, when a court struck down Los Angeles’s inclusionary ordinance. In 2013, Gov. Jerry Brown vetoed an override, saying he wanted to see how a supsequent California Supreme Court ruling was decided. In 2015, the Supreme Court ruled in favor of inclusionary housing.

AB 1505 (Bloom) is the favored vehicle at the moment, though SB 277 (Bradford) also deals with the same topic.

Workaround Around the Tuolomne Tactic

Finally, one bill would create a workaround around the so-called Tuolomne Tactice, the practice of adopting a voter initiative prior to an actual vote in order to end-run the California Environmental Quality Act review process. The California Supreme Court approved the tactic in 2015, thus allowing developers to slipstream between election officials’ option of approving an initiative and court rulings saying initiatives are exempt from CEQA.

AB 890 is sponsored by Assemblymember Jose Medina, whose district includes Moreno Valley. Moreno Valley used the Tuolomne Tactic to approve a 40-million-square-foot logistics district.