Cities Tussle With HCD Over SB 79 Implementation
Cities around the state continue to tussle with the California Department of Housing and Community Development over implementation of SB 79, with HCD approving some city plans and actions and rejecting others.
In particular, HCD has concluded that actions by Beverly Hills, Burlingame, Pasadena, and Oceanside are out of compliance with the new law. Beverly Hills and Burlingame must respond to HCD’s non-compliance letters by this week, while Pasadena’s deadline is late November and Oceanside’s deadline is mid-December. As CP&DR previously reported, Beverly Hills is expected to rescind its SB 79 alternative plan, which HCD has rejected.
Passed last year and hailed by YIMBYs are a major step forward, SB 79 essentially requires midrise (4- to 8-story) zoning around major rail transit stations in urban counties around the state. But cities have the option of excluding some properties, either permanently (no walking path of less than one mile to the stop; industrial employment hubs) or temporarily until about a year after the 7th-cycle Housing Element (sites already zoned for at least 50% of SB 79 capacity; certain low-resource areas; very high fire hazard zones; locally designated historic resources; one-foot sea-level-rise areas).
Cities also have the option of adopting an alternative plan that moves the required density around, so long as no parcel has less than 50% or more than 200% of the density required by SB 79.
The HCD issues are separate from issues raised by lawsuits filed by various prohousing groups, especially in San Diego, which include questioning how SANDAG drew the SB 79 maps and how both San Diego and Oceanside defined a walkable path to teh transit station. (Previous CP&DR cover of these lawsutis can be found here.)
Among the most contentious questions is whether density bonuses can be permitted on top of SB 79 densities. Denus bonus law can increase densities 50-100% above base zoning. San Francisco, Beverly Hills, and Burlingame all argued that density bonuses should not be permitted in SB 79 areas under their alternative plans.
But HCD disagreed, arguing that because of alternative plan “is part of a local jurisdiction’s municipal code, other state housing laws apply that operate independently of” the alternative plan, including density bonus law. Thus, according to HCD’s interpretation, a developer could seek additional density on top of the SB 79 zoning by invoking the density bonus law.
But HCD did not handle these three situations the same. In finding San Francisco’s alternative plan compliant with state law – the first jurisdiction to receive that status – HCD said that the city could not enforce the municipal code section that prohibits the use of density bonus law in SB 79 areas, though the agency require that the code section be deleted.
In the Beverly Hills case, HCD raised this concern in a findings letter in early September, using the same language that was used in the San Francisco letter. But, unlike in the San Franciscocase, HCD ordered Beverly Hills to remove the density bonus language from its municipal code. HCD imposed the same requirement on Burlingame in a findings letter issued the same day.
In its staff report (which can be accessed through a meeting agenda here), Beverly Hills staff planners claimed that HCD reversed its position on the density bonus issue.
But density bonuses are not the only issue bringing cities into conflict with HCD. Several other issues have arisen that indicate HCD is taking an extremely hard line in reviewing local plans and ordinances related to SB 79, including calling for land zoned for parks to be included in some cases if the parks zoning allows some commercial use.
In the Beverly Hills case, HCD disputed the city’s calculation of the zoned capacity under its alternative plan. HCD said the city did not subject existing units from the zoned capacity in the alternative plan. Either way, the alternative plan calls for a capacity of between 18,000 and 22,000 units in a city that currently has about 16,000 units.
In Burlingame, in addition to the density bonus dispute, HCD has rejected the city’s decision to exclude land zoned for parks and public institutions, saying residential use is permitted in those zones under SB 79.
A similar dispute occurred in Pasadena, where HCD rejected the city’s decision to exclude some non-residential zones, including an open space zone near the Sierra Madre Villa light-rail station. But the non-residential use is embedded in the general plan, whereas HCD looked to the underlying zoning. The open space zone, which consists mostly of a Southern California Edison right-of-way and a wash, allows some commercial uses, apparently because nurseries formerly existed on the Edison property. That opened the door for HCD to dispute the exclusion of the property.
“While the statute does not explicitly define “mixed” or “commercial” uses, if the
jurisdiction’s zoning district principally or conditionally permits residential, residential mixed use, or commercial land use on a parcel within a TOD zone over which the jurisdiction has zoning authority, then SB 79 shall apply,” HCD wrote in a September 25 letter to Pasadena.
Many of the same issues arose in Oceanside, including the same netting out of existing units that Beverly Hills dealt with and parks and institutional zoning permitting commercial use, thus opening the door for SB 79. More significant is the fact that Oceanside sought to exclude the Oceanside Transit Center – the biggest transit center in North County San Diego – because it is a low-resource area. In an October 15 letter, HCD said it could not determine whether the area was in fact low resource.
Oceanside has apparently been resisting SB 79 densities at the transit center in part because it has a plan for the area that limits development to 86 units per acre, a plan that has been approved by the Coastal Commission.
HCD’s SB 79 letters, along with other technical assistance and enforcement letters, can be found here.