housing Archives

Density Bonus Law & CEQA Tiering Upheld

April 7, 2022April 6, 2022 | Mark Loper

This winter, two California Courts of Appeal issued decisions that reaffirm some of the positive aspects of state laws related to housing production, from both a CEQA perspective and via the State Density Bonus Law (“DBL”). In the first case, out of East Bay city Newark, the First District Court of Appeal upheld a tiered CEQA review for a 469-lot subdivision based on a program-level EIR prepared for a Specific Plan. About a week later, the Fourth Appellate District upheld San Diego’s approval of a 20-story residential tower, relying heavily on the protections afforded to mixed-income residential projects under the DBL. We discuss each below.

In Newark, the City approved a specific plan in 2010 for up to 1,260 units, as well as a golf course and related facilities, relying on an EIR. The EIR specifically noted that Newark would proceed under CEQA Guidelines Section 15168 for specific development proposals and “tier” off of the EIR to the extent applicable. In 2019, the applicants submitted a subdivision map proposing 469 residential lots, but no golf course. Other changes from the development analyzed in the EIR included filling and elevating only certain areas on the site (the project site is located next to the San Francisco Bay) and locating the filled and elevated areas directly next to wetlands, with riprap along the western banks. The City prepared an exemption checklist comparing the EIR to the subdivision’s impacts and conducted background technical studies, including an updated sea level rise analysis. The checklist found that the subdivision would be consistent with the specific plan, and that there were no changed circumstances or new information that might trigger the need for more CEQA review than what was done for the EIR. It was a classic example of CEQA “tiering.”

The Court of Appeal upheld the City’s use of the checklist. First, it rejected an argument that the project changes made tiering inappropriate. The Court helpfully pointed out that changes in and of themselves do not eliminate the ability to tier off an EIR; instead, the environmental consequences resulting from those changes must be new, greater, or substantially different than what was analyzed in the EIR. Here, they were not. The Court also rejected the appellant’s claim that the amount and rate of sea level rise was different enough to require a new EIR, finding that the EIR’s unambiguous finding of a significant impact due to sea level rise was adequate, as was some language in the EIR noting that the rate of sea level rise was uncertain and might be accelerating.

Finally, the Court determined that adaptive management plans for sea level rise do not improperly defer consideration of mitigation measures. Taking a refreshingly common-sense approach to climate change and CEQA, the Court would not fault Newark for acknowledging in the EIR that adaptive management would be required. “The City’s potential responses to environmental conditions between 50 and 80 years from now cannot be considered part of the project,” it concluded. “Because the City currently can only dimly guess what measures will be needed to respond to conditions several generations from now, the City was not required to analyze the impacts of the adaptive pathways” as part of the project.

The Court of Appeal’s opinion in San Diego generated more buzz, particularly among the pro-housing groups that have done yeoman’s work in recent years to strengthen California’s housing protections. The case was originally not certified for publication, in part because San Diego’s City Attorney was reluctant to have a published case that so clearly spelled out the limits of the City’s discretion to deny or downsize density bonus projects. Nevertheless, after receiving petitions to publish it, the Court did. It is helpful in several ways, reaffirming the City’s evidentiary burden to deny waivers or concessions; harmonizing General Plan consistency findings with the DBL; and applying the conclusion the First District Court of Appeal reached in Wollmer v. City of Berkeley that a density bonus project can be approved with residential amenities such as a courtyard.

The Project—a 20-story, 204-unit mixed use tower at 6^th Avenue and Olive Street across from Balboa Park—faced pushback from neighbors, at least some of whom the Court implied would lose their view of the park. Somewhat surprisingly, instead of arguing that the project would have an unmitigable health and safety impact on the adjacent park, the neighbors argued administratively, at the trial court, and at the Court of Appeal that the project should be denied because it did not comply with several General Plan and Community Plan guidelines that call for contextual development and massing moderation of tall towers. They also argued that the City should not approve waivers that contradicted the guidelines, and that the City should have approved a shorter and squatter development that had the same number of units but a smaller courtyard.

The Court began its analysis by noting that the neighbors had “sidestepped” the implications of the DBL, not discussing it at all in its opening brief and then dismissively claiming the DBL is not a “free pass.” The Court identified the narrow grounds by which a City can shrink or deny a DBL project and pointed out that the neighbors simply failed to make any arguments about that point.

It then went on to explain that the developer specifically requested concessions under the DBL that were germane to each of the General Plan and Community Plan guidelines the neighbors claimed the project did not comply with. The City Council expressly made a finding that there was no evidence to support the denial of the requested incentive, which the Court found to be determinative—acknowledging that the burden on this issue has now shifted to cities if they attempt to deny a project, not the developer proposing an incentive. It also concluded that the project’s waivers were correctly layered on top of the project with requested concessions, meaning a project qualifies for waivers based on its form with both the density bonus and the concessions.

The Court finally rejected the neighbors’ claim that the project’s design was not dictated by the density bonus and concessions, but by a large courtyard. It pointed out that this precise argument was raised and rejected in the Wollmer v. City of Berkeley case from 2011, one of the first cases analyzing the modern DBL. The San Diego City Council could not demand the developer remove the courtyard or redesign its building to satisfy the neighbors’ subjective concerns. The Court stated: “a city cannot apply a development standard that would physically preclude construction of the project as designed, even if the building includes ‘amenities’ beyond the bare minimum of building components.” It remains to be seen what qualifies as an “amenity” that can be baked into a project other than a courtyard, as both Wollmer and the San Diego case related to open space and courtyard amenities. And the evidentiary burden and procedural posture here were also the same as Wollmer: a city defending a project approval with amenities instead of making a project shorter or smaller by eliminating them. This issue may be ripe for further litigation.

The Newark case—Citizens Committee to Complete the Refuge v. City of Newark et al. (2022) ___ Cal.App. ___ (A162045, Alameda County Superior Court No. RG19046938)—and the San Diego case—Bankers Hill 150 et al v. City of San Diego et al (2022) ___ Cal.App. ___ (D077963, Super. Ct. No. 37-2019- 00020725-CU-WM-CTL)—are reminders that well-crafted CEQA documents, entitlement applications, and approval motions can help ensure new state laws meant to protect and streamline housing projects are accurately applied to a project.

Authored by Reuben, Junius & Rose, LLP Attorney Mark Loper.

The issues discussed in this update are not intended to be legal advice and no attorney-client relationship is established with the recipient. Readers should consult with legal counsel before relying on any of the information contained herein. Reuben, Junius & Rose, LLP is a full service real estate law firm. We specialize in land use, development and entitlement law. We also provide a wide range of transactional services, including leasing, acquisitions and sales, formation of limited liability companies and other entities, lending/workout assistance, subdivision and condominium work.

State Warns San Francisco Concerning Rejected Housing Projects

December 2, 2021December 2, 2021 | Thomas P. Tunny

The Board of Supervisors (“Board”) recently issued two unusual denials of large housing projects – the projects would have provided over 800 dwelling units, over 130 of which were affordable. In an even more unusual move, last week the California Department of Housing and Community Development (“HCD”) informed San Francisco officials that the City may have violated state housing laws by rejecting the projects. Without getting into the Board politics behind the project denials, the State’s actions are notable. The State rarely takes such a public stance concerning local planning and zoning decisions, indicating the high priority the State is placing on the provision of housing and the concern with these decisions.

The Two Rejected Housing Projects

The two housing projects at issue are located at 469 Stevenson Street and 450-474 O’Farrell Street. The 469 Stevenson Street project is a mixed-use, 27-story high rise with 495 dwelling units, including 89 affordable units. The Board of Supervisors denied the project on CEQA grounds, overturning the Planning Commission’s certification of the project’s Final Environmental Impact Report (“FEIR”). In HCD’s own words, the Board cited “various vague concerns about FEIR deficiencies, including seismic concerns, effects (e.g., shadowing) on historic resources, and gentrification.”

The project at 450-474 O’Farrell Street is a modification of an earlier project. The new project proposes more, smaller units (316 vs. 174) that are “affordable by design”, and included 43 affordable/below market rate units. The Board overturned the Planning Commission’s approval of a Conditional Use Authorization for the project without yet issuing written findings.

HCD Letter

HCD made its concerns known to City officials in a letter last week. The message was pointed. HCD expressed concern that the Board’s decisions “represent[] a larger trend in the City/County,” noting that “California’s housing production does not meet housing need. In the past ten years, housing production has averaged fewer than 80,000 new homes each year, far fewer than the 180,000 new homes needed…. As a result, the cost of housing has skyrocketed, and San Francisco stands amongst the top two most expensive housing markets in the United States.”

HCD raised significant concerns with the City’s compliance with the Housing Accountability Act (“HAA”). Under the HAA, a local government cannot disapprove or reduce the density of a housing development project that complies with applicable, objective general plan, zoning, and subdivision standards and criteria, including design review standards, in effect at the time that the application was deemed complete, unless it makes written findings supported by a preponderance of the evidence on the record that the project would have a specific, adverse impact upon the public health or safety and there is no feasible way to mitigate that impact. The Board did not make such findings for either project.

HCD also expressed “concern[] about the significant delays in the approval of housing generally and in the City/County in particular.” As to the O’Farrell project, HCD expressed concern that the City violated the “5 Hearing Rule” set forth in the Housing Crisis Act of 2019 (SB 330). The Planning Commission had six hearings on the project and the Board appeal was the seventh hearing.

Lastly, HCD warned the City about its implementation of and compliance with its existing Housing Element and its upcoming Housing Element update. The Housing Element update “must … demonstrate local efforts to remove governmental constraints that hinder the locality from meeting its share of the regional housing need and include program actions with metrics and milestones to remove or mitigate identified constraints…. Academic research continues to show that San Francisco’s processing and entitlement timeframes and procedures exceed the norms for other jurisdictions of similar size and complexity and act as a constraint on the development of housing.”

HCD concluded by reminding the City that HCD “has both the authority and duty to review any action or failure to act by a city, county, or city and county that it determines is inconsistent with an adopted housing element… or in violation of the HAA.” HCD’s investigation remains open and they are continuing their review of the City’s practices with respect to housing review and approval generally.

Authored by Reuben, Junius & Rose, LLP Attorney Thomas P. Tunny.

California Enacts Bills Aimed to Increase Housing

October 6, 2021 | Melinda Sarjapur

Last month, Governor Newsom signed three complimentary bills taking aim at the housing crisis in California: SB-8, SB-9, and SB-10. Together, the bills are intended to promote denser housing, streamline housing permitting, and boost housing production in California. The practical effects of the bills, however, are yet to be seen.

SB-9

SB-9 requires local agencies to ministerially approve the following in single-family zoning districts: (a) subdivision of existing lots into two parcels; and (b) development of up to two units per lot. Ministerial approvals require no environmental review, discretionary review, or public hearing process.

While opponents have painted SB-9 as a death knoll for single-family zoning, in reality the legislation comes with slew of caveats and conditions that limit its practical application.

To qualify for ministerial approval of a lot split under SB-9, all of the following must be met:

Site is located in a single-family residential zoning district;
Site is located in an urbanized area or urban cluster, or within a city that has an urbanized area or urban cluster, as designated by the US Census Bureau (which covers most urban and suburban cities in the state);
Subdivision creates no more than two new parcels of approximately equal lot area, provided that one parcel may not be smaller than 40% of the lot area of the original parcel proposed for subdivision;
Both newly created parcels must be no smaller than 1,200 square feet, unless the local jurisdiction adopts an ordinance allowing for smaller lot sizes with ministerial approval;
Site is not located on property that is prime farmland or farmland of statewide importance; wetlands; in a very high fire hazard severity zone; a hazardous waste site; in a delineated earthquake fault zone; in a special flood hazard area; in a regulatory floodway; identified for conservation in an adopted natural community conservation plan; a habitat for a protected species; or subject to a conservation easement;
Subdivision would not require demolition or alteration of housing subject to rent control; designated affordable housing; housing that has been removed from the rental market through Ellis Act eviction in the last 15 years; or housing that has been occupied by a tenant (market rate or affordable) in the past 3 years;
Site is not an historic landmark, and is not located within an historic district;
Site was not created through a prior SB-9 subdivision; and
Neither the owner of the parcel being subdivided or any person acting in concert with the owner has previously used SB-9 to subdivide an adjacent parcel.

To qualify for ministerial approval to develop up to 2 units per lot under SB-9, the locational and tenant-history criteria are similar. In addition, applicants will need to show that the project won’t demolish more than 25% of the existing exterior structural walls, unless either a local agency passes legislation allowing otherwise, or the site has not been occupied by a tenant in the last 3 years.

SB-9 also contains an owner-occupancy condition which limits its utility for development entities. Applicant-owners will be required to sign an affidavit stating their intent to occupy one of the resulting housing units as the owner’s principal residence for at least three years following the lot split. However, community land trusts and qualified nonprofit corporations are exempt, and local agencies cannot impose any other owner-occupancy requirements.

And while SB-9 will allow for ministerial approval of qualifying projects, local agencies can still require all of the following:

Lots resulting from ministerial subdivision be limited to residential use;
No short term rental of units resulting from ministerial approval;
Project compliance with all objective zoning, subdivision, and design review standards applicable to the parcel that do not have the effect of physically precluding construction of two units on either resulting parcel or result in a unit size of less than 800 sf;
That new structures provide setbacks of up to 4 feet form side and rear lot lines;
For residential units connected to an onsite wastewater treatment system, a percolation test completed within the last 5 years, or, if the percolation test has been recertified, within the last 10 years.
Projects provide easements for provision of public services and utilities;
All resulting parcels maintain access to or adjoin the public right of way;
Projects to provide parking of up to 1 space per resulting unit, unless the site is located within ½ mile of a high-quality transit corridor or major transit stop, or there is a car share vehicle located within 1 block of the site.

Finally, on lots that are both created by an SB-9 lot split and developed with two units under SB-9, a local agency is not required to permit ADUs or JADUs.

SB-8

SB-8 primarily extends the Housing Crisis Act of 2019 (SB-330) another five years until 2030 and clarifies some of the text of the previous measure. Among other things, SB-330 expedites the permitting process for housing developments; protects existing housing inventory; allows housing developments to file preliminary applications that provide grandfathering protection against zoning changes enacted during the discretionary review process; and limits the ability of local agencies to downzone areas unless they upzone an equivalent amount elsewhere within their boundaries.

SB-10

SB-10 authorizes local governments, at their election, to adopt an ordinance to zone any parcel for up to 10 residential units in transit-rich areas or urban infill sites. That would apply to most properties located along established bus lines, within half a mile of a major transit stop, or in residential/mixed use areas of most California cities. Ordinances or resolutions adopted by local agencies under SB-10 are exempt from environmental review, would require a 2/3 vote in favor from the local legislative body to adopt, and could not be used to reduce density otherwise permitted on any parcel subject to the ordinance. SB-10 would further prohibit a residential or mixed-use project with 10 or more units that is located on a parcel zoned pursuant to an SB-10 ordinance from being approved ministerially or by right, or from being exempt from environmental review.

Authored by Reuben, Junius & Rose, LLP Attorney Melinda Sarjapur.

Eliminating Single Family Zoning is OK, but Don’t Eliminate Parking

August 31, 2021 | Matthew Visick

SB 9 Makes it Through the Assembly but AB 1401 Dies in the Senate

Two bills that would limit local control over housing issues met very different fates this past Thursday in the California Legislature. Both were vehemently opposed by cities and groups that favor local control over land use decision making. One was opposed by housing equity groups.

Senate Bill 9

Senate Bill 9 (“SB 9”) would, among other things, require a city or county to ministerially approve (1) a two-unit housing project in a single-family zone, (2) the subdivision of a parcel zoned for residential use into two parcels, or (3) both.

SB 9 could unlock substantial housing production in single-family neighborhoods, where opposition to multi-family housing projects is typically greatest. Many of the lots in these districts include only a single-family home and maybe an Accessory Dwelling Unit (which cannot be separately sold). SB 9 would allow each existing single-family lot to be ministerially subdivided into two lots, and require ministerial approval of a duplex on each of the lots.

According to the Terner Center for Housing Innovation at UC Berkeley, SB 9 has the potential to allow for the development of nearly 6 million new housing units statewide.

Assembly Bill 1401

Assembly Bill 1401 (“AB 1401”) would limit minimum off-street parking requirements for projects located near a “major transit stop” (generally a train station or bus station with high frequency headways).

AB 1401 is hardly radical legislation. When first introduced by Assembly Member Friedman in February 2021, the bill prohibited public entities (cities and counties) from imposing or enforcing minimum parking requirements on residential, commercial, or other development that is located within one-half mile walking distance of a “major transit stop” (generally a rail stop or a bus stop with frequent headways). As last amended on July 5, 2021, the bill eased the prohibition for smaller cities. A city with a population of 75,000 or more that is located in a county with a population of less than 600,000 was only prohibited from imposing the parking minimums on projects located within one-quarter mile of a major transit stop, and a city with a population of less than 75,000 was not subject to any prohibition.

Studies show that eliminating minimum parking requirements for projects located near transit routes supports the state’s housing goals by reducing the cost to deliver housing and allowing more dwelling units on a development site. Eliminating parking requirements near transit also advances the state’s environmental goals by reducing emissions from cars.

Wait, the Parking Bill is the One That Died?

Both SB 9 and AB 1401 sailed through their respective policy committees in both the Assembly and the Senate with large vote margins in support. Both were vehemently opposed throughout by local governments and groups that advocate for “local control” over land use decision making. Yet AB 1401 was referred to the “suspense file” in the Appropriations Committee, where ambitious legislation often goes to die, while SB 9 was not.

It is hard to know exactly why bills are referred to the “suspense file.” The “suspense file” is intended to be a place to evaluate whether to advance a bill that could have a significant fiscal impact. But committee analyses of both SB 9 and AB 1401 show that both bills were anticipated to have the same annual impact on the budget (SB 9: $89,000 and AB 1401: $97,000).

A more plausible explanation emerges when one considers the groups opposed to the changes the bills would bring. It is not surprising that numerous suburban cities and local government groups opposed both bills (SB 9 faced even greater opposition from these groups than AB 1401). However, the opposition to AB 1401 was more diverse. Affordable housing advocates argued that eliminating parking minimums for market rate development would reduce incentives for developers to create the affordable dwelling units required to reduce parking requirements using the Density Bonus Law. In addition, environmental groups objected to the reduction of parking near transit as inconsistent with equity goals.

Decline in Value Real Estate Tax Appeals Due September 15

The deadline to appeal the valuation of property for real estate tax purposes is September 15 for both San Francisco and Alameda Counties. Such an appeal would be appropriate due to a decline in property value because of the impact of Covid-19 and the related business shutdowns. If you need more information, please contact Kevin Rose at krose@reubenlaw.com (415.567.9000). Other counties may have different deadlines, so you should check with your local County appeals board to confirm the deadlines.

Authored by Reuben, Junius & Rose, LLP Attorney Matthew Visick.

Appellate Court Clarifies Permit Streamlining Act’s Noticing Requirements

July 21, 2021 | Mark Loper

On the heels of the Berkeley Shellmound SB 35 decision in favor of streamlined housing, another recent Court of Appeal decision rejected a public agency’s attempts to delay a housing project under the Permit Streamlining Act (“PSA”), and clarified that a jurisdiction with permitting authority must take action within the PSA’s time limits even if the project’s public hearing notice did not specifically discuss the PSA’s “deemed approved” provision.

Overturning a 2006 decision about the level of detail necessary to trigger the PSA’s “deemed approved” requirement when a City fails to render a decision on a project within a specified time period, the Court of Appeal in late June determined that a public agency’s hearing notice did not need to specifically include a reference to the deemed approved outcome (Linovitz Capo Shores LLC et al v. California Coastal Commission, No. G058331 (Cal. Ct. App. June 25, 2021)). Instead, the Court found that the California Coastal Commission (“Coastal Commission”) failed to properly make a decision on the merits of a mobilehome housing project within the PSA’s time limits, and under the PSA the project was approved. While the fact pattern for the case is somewhat unique, it provides a lesson for local and state permitting agencies, and project sponsors dealing with jurisdictions hostile to new housing.

Owners of beachfront mobilehomes in San Clemente, Orange County, filed permits with the Coastal Commission and other permitting agencies to renovate their mobilehome park. After several years, the Coastal Commission issued individual public hearing notices for each application. The notice included a project description, the date, time, and location of the hearing, hearing procedures, and ways the public could participate. Notably, the hearing notice did not specify the deadline for the Coastal Commission to render a decision on the permits under the PSA. However, the staff report provided in bold lettering that the Coastal Commission was required to make a decision at the hearing in order to comply with the PSA, and the Commission’s legal counsel discussed the “deemed approved” deadline at the hearing itself.

At the project hearing, the sponsors agreed in principle to withdraw and re-file their applications with an amended scope, but asked the Coastal Commission to waive resubmittal fees and a resubmittal waiting period. The Commission waived the waiting period, but not the resubmittal fees, and the meeting recessed without any further comment from the project sponsors. The Commission did not take any formal action on the pending applications. The sponsors then sued the Commission, claiming in part that the projects had been deemed approved under the PSA.

Unsurprisingly, the Coastal Commission claimed that the projects were not approved for several reasons. Relevant to the PSA, according to the Commission, the requisite public notice under the PSA was never given. It claimed the hearing notice needed to include a statement that the projects would be “deemed approved” if the Commission did not act within 60 days. The Court of Appeal disagreed, interpreting the PSA to require such a statement only when an applicant itself is providing notice of a hearing under the PSA. When the permitting agency provides notice, the PSA’s time limitations can apply even if the notice does not discuss the PSA.

The Court of Appeal’s decision overturns a 2006 decision reaching the opposite conclusion. The Court did not promulgate a list of information that must be included in a public notice to trigger the PSA’s deemed approved deadlines, instead reaching a narrower conclusion that the notice provided in this case—as discussed above—complied with statutory law and constitutional due process principles.

Interestingly, the Court noted that even though the Coastal Commission did not have a legal obligation to notify the public of the upcoming PSA deadline, it did just that, both through the project’s staff report and its legal counsel’s advice to the Commission that the PSA deadline was approaching. The Court also went out of its way to note near-unanimous public support for the project, which arguably made its decision easier. Implied in the Court’s opinion is that the Commission made a simple mistake of parliamentary procedure by not taking an official action on the pending applications in front of it.

The Court did not opine on whether the Commission could legally keep the hearing open and continue it to a future date past the PSA deadline date, or adopt a motion of intent to disapprove and continue it. Both are common actions taken by permitting authorities that pro-housing activists have long claimed circumvent the intent of the PSA and cause delay to housing projects.

Increasingly, California courts are being asked to enforce the pro-housing laws passed in Sacramento in recent years, such as SB 330, the PSA, and SB 35. For example, two trial courts recently rejected anti-housing voter initiatives on the grounds they violated SB 330, either one of which could be appealed and become binding case law. We will continue to keep you up to date on major housing-related legal developments.

Authored by Reuben, Junius & Rose, LLP Attorney Mark Loper.

San Francisco Housing Element Update

May 20, 2021May 20, 2021 | Jody Knight

While the Bay Area works to recover from the impacts of COVID-19 on retail and hospitality, and digital nomads slowly return to the office, the pandemic has done nothing to slow escalating home prices. The California Association of Realtors reported this week that the Bay Area’s median single-family home price exceeded $1.3 million in April, with a median price of $1.8 million in San Francisco. The City saw an increase of 5.9% from last year and 2.6% from March.

As single-family homes become increasingly out of reach for many families, the City also continues to experience a shortfall in all housing types, resulting in ongoing debate about uneven development throughout the City and the introduction of legislation at the State and local level that takes aim at single-family zoning.

On March 18, 2021, Reuben, Junius and Rose’s Tuija Catalano updated you about the upcoming RHNA (Regional Housing Needs Assessment) cycle. The update explained how the draft allocation would significantly increase the identified need for housing units in the Bay Area compared with the last RHNA cycle. Under the draft, San Francisco would see an increase from 28,869 to 82,069 units.

San Francisco has begun the process of planning for those housing units. The City’s Housing Element 2022 Update began in May 2020. The Housing Element is a component of the General Plan that is updated every eight years.

The current update focuses on social and racial equity, while it looks at how to accommodate the creation of 82,000 housing units by 2031. The plan focuses on building in State identified High Opportunity Areas, which are mainly in the western part of the City. The Planning Department has a page dedicated to the process which provides information and allows for public input.

The first draft of the Goals, Policies and Actions of the Housing Element have been identified as follows:

recognize the right to housing as a foundation for health and social and economic stability;
repair the harms of historic racial, ethnic, and social discrimination for American Indian, Black, and other People of Color;
foster racially and socially inclusive neighborhoods through distinct community strategies;
increase housing production to improve affordability for the City’s current and future residents;
increase housing choices for the City’s diverse cultural lifestyles, abilities, family structures, and income; and
promote neighborhoods that are well-connected, healthy, and rich with community culture.

On April 22, 2021, the Planning Commission conducted an informational hearing on the Draft Housing Element. Planning Staff will be engaging in outreach to further refine the policies in the plan, with a second draft anticipated by Fall 2021. The Draft Environment Impact Report is anticipated in early 2022.

At the April 22, 2021 hearing, the Planning Commission also heard the 2020 Housing Inventory and Housing Balance Reports. The City saw a 1% increase in housing stock in 2020, with most new development in SoMa, the Mission and Downtown. While 2020 was a difficult year for development because of the pandemic, the Reports illustrate how far the City has to go to meet its RHNA target, particularly on housing affordable to lower income residents.

Given the already contentious environment surrounding housing equity and the geographic distribution of new units in the City, we expect this Housing Element update to generate significant debate. However, the Plan does not change allowable land uses, heights, or density, so meeting the City’s housing needs will depend on legislative changes. We will follow and report on both as the housing debate continues.

Authored by Reuben, Junius & Rose, LLP Attorney Jody Knight.

Two Legislators Take Aim at Statewide Planning Laws

April 7, 2021April 7, 2021 | Sabrina Eshaghi

In an apparent backlash against recent housing bills, two California state legislators have introduced a constitutional amendment that would essentially revoke the state’s ability to regulate land use. If approved, this amendment would allow cities to avoid compliance with state laws aimed at increasing housing production, making it more difficult to meet the housing needs of the growing California population.

The measure was introduced by Assemblymember Muratsuchi (D-Torrance) on March 16, 2021 and co-authored by Senator Glazer (D-Contra Costa). This comes after an attempt to get a similar citizen-initiated measure on the ballot, which has not reported any required signatures to the state as of this writing. In order to qualify for the ballot, two-thirds of each legislative chamber will need to approve the constitutional amendment. That amounts to a minimum of 54 votes in the Assembly and 27 in the Senate, assuming no vacancies. The governor’s approval is not required.

The constitutional amendment itself is fairly simple. It states that city or county regulations regarding “zoning or the use of land” prevail over conflicting state laws. Limited exceptions include conflicts with state statutes involving (1) the California Coastal Act, (2) the siting of certain power generating facilities, and (3) water or transportation infrastructure projects. Transportation infrastructure projects do not include transit-oriented development projects. This amendment would apply to both charter cities and general law cities. However, in charter cities, courts would determine whether a local ordinance that conflicts with one of the subject areas listed above addresses a matter of statewide concern or a municipal affair.

The measure states that the amendment will provide local control over land use decisions in order to balance development with the economic, environmental, and social needs of the community. The measure notes that the impacts of land use decisions vary depending on the municipality and specifically points to impacts on the infrastructure needed to maintain adequate public services.

While these are valid concerns, they need to be evaluated in light of the current housing crisis, which has been decades in the making. The state sets housing production goals, also known as the Regional Housing Needs Assessment (RHNA), that cities and counties are required to plan for in their Housing Elements. However, planning for housing does not always translate into actual housing production. According to the HCD’s latest data, only about 6% of California’s cities and counties are on track to meet the state’s current RHNA goals in all income categories. And, as we noted in a prior e-update, many cities and counties are looking at significant increases in RHNA goals next cycle. In order to incentivize housing production, the legislature has stepped in to streamline approvals, allow density bonuses, and limit municipalities’ ability to deny certain housing projects.

The amendment’s broad applicability to regulations regarding “zoning or the use of land” leaves significant room for interpretation and will result in far-reaching consequences that will ultimately exacerbate the state’s worsening housing crisis. For example, the amendment would allow cities to disregard the following state laws:

Density Bonus Law. Under the Density Bonus Law, developers are entitled to up to a 50% density bonus if certain on-site affordability requirements are met. The law also allows waivers and concessions from development standards that would physically preclude the density permitted or result in identifiable and actual cost reductions.

SB 35. This legislation requires ministerial approval of housing projects that meet certain affordability requirements in cities and counties that are not meeting their RHNA goals.

Permit Streamlining Act. This Act allows certain development projects to be deemed approved if the local agency does not approve the project within specified time limits.

SB 330. Among other things, SB 330 (1) provides a mechanism to vest the ordinances, policies, and standards in effect at the date a complete Preliminary Housing Development Application is submitted, (2) limits the ability of municipalities to downzone certain properties, impose moratoria, or apply new subjective design standards to housing developments, (3) further streamlines approvals, and (4) limits the number of hearings that can be conducted prior to approval of a housing project.

Housing Accountability Act. This Act limits a local government’s ability to deny, make infeasible, or reduce the density of housing development projects that are consistent with objective local development standards.

ADU Law. In recent years, there has been a significant amount of legislation making ADUs easier to build by streamlining the approval process, limiting applicability of impact fees, and relaxing zoning requirements.

The broad language of the amendment may also have the effect of reversing state rent control regulations and General Plan requirements, including the need to update the Housing Element to accommodate RHNA goals. In addition, a number of land-use related bills have been introduced this session that could be impacted by this constitutional amendment.

It remains to be seen whether two-thirds of the legislature, which recently passed landmark housing bills, would vote to put this constitutional amendment on the ballot. We will continue to monitor this measure and keep you updated.

Authored by Reuben, Junius & Rose, LLP Attorney Sabrina Eshaghi.

Cities’ Upcoming Need to Identify Housing Opportunity Sites

March 18, 2021 | Tuija Catalano

The next RHNA (Regional Housing Needs Assessment) cycle is quickly approaching, which means that all Bay Area cities will be taking a closer look at their Housing Elements and determining whether they have enough land zoned to accommodate more housing.

In June 2020, the California Housing and Community Development (“HCD”) provided the Bay Area its Regional Housing Needs Determination for the next RHNA cycle (2023-2031), identifying a need for 441,176 new housing units. The overall figure is further categorized into very low (26%), low (15%), moderate (16%), and above moderate (43%) housing and income levels. This figure represents a significant increase when compared to the prior RHNA cycle (2015-2023) when the Bay Area was allocated 187,990 units. In the Bay Area, the Association of Bay Area Governments (“ABAG”) is responsible for allocating the overall figure among cities and counties, and its Housing Methodology Committee spent much of 2020 in meetings to discuss and decide on different methodology options. Regardless of which allocation methodology was going to be chosen, most Bay Area cities and counties are seeing a significant increase in their RHNA allocations.

ABAG’s Executive Board approved the Draft RHNA Methodology and Final RHNA Subregional Shares (“Draft Allocation”) for the Bay Area on January 21, 2021. The Draft Allocation is subject to HCD approval on or before April 11, 2021, and thereafter an appeal opportunity by individual cities and counties during Summer/Fall 2021. Historically, very few appeals by individual cities or counties have been successful, and thus most of the Draft Allocation figures are anticipated to be adopted as final allocations by late 2021.

Once the allocations have been finalized, individual cities and counties will need to amend their Housing Elements and identify sufficient number of vacant or underdeveloped sites that can accommodate the RHNA figure allocated to each city. Many cities are currently starting the process by engaging consultants to work on their next Housing Element update. The updated housing elements must be submitted to the State by each city and county no later than January 2023, and if applicable, cities and counties will thereafter need to rezone properties consistent with the updated Housing Elements and site identifications.

To understand the magnitude of the increases cities and counties are facing for the next RHNA cycle, it is helpful to look at some of the Draft Allocation figures. The following represents a sampling of Bay Area cities, comparing their final 2015-2023 RHNA figure to those proposed in the Draft Allocation for the next, 2023-2031 cycle. For a complete list of cities/counties, see the Draft Allocation.

City	2015-2023 cycle	2023-2031 cycle
San Francisco	28,869	82,069
Oakland	14,765	26,251
San Jose	35,080	62,200
Berkeley	2,959	8,934
Fremont	5,455	12,897
Concord	3,478	5,073
Lafayette	400	2,114
Walnut Creek	2,235	5,805
Novato	415	2,090
Tiburon	78	639
Daly City	1,350	4,838
Menlo Park	655	2,946
San Bruno	1,155	3,165
Cupertino	1,064	4,588
Los Gatos	619	1,993
Sunnyvale	5,452	11,966

Cities and counties are not required to build new housing, but they are required to plan for it and specifically plan for enough housing that satisfies their assigned RHNA figure. Since most Bay Area cities and counties are subject to significant increases, local city councils and board of supervisors, along with their Planning Departments, will be taking a comprehensive look at zoning and development in their jurisdictions over the next year and a half. This may also represent opportunities in the near-term for property owners of currently vacant or underutilized properties and/or those that lack the zoning necessary for residential development.

Authored by Reuben, Junius & Rose, LLP Attorney Tuija Catalano.

Housing Production Legislation to Watch

December 16, 2020December 18, 2020 | Justin A. Zucker

The start of another legislative session is upon us. Last week at the outset of the 2021-2022 legislative session, several bills impacting housing production were introduced. Some are similar to bills that weren’t passed last year. Below are four bills to watch as they wind through the Legislature.

SB9 (Atkins, Caballero, Rubio, Wiener)

SB9 is a refresh of SB1120 from last session that would allow duplexes on most lots. SB9 requires cities to ministerially permit, i.e., without CEQA review or other discretionary reviews or hearings, two-unit development projects in single-family zoning districts. It would also allow single-family parcels to be subdivided into two lots if the parcel is located within an urbanized area or urbanized cluster and is: (i) not located within a historic district, (ii) not included in the State Historic Resources Inventory, or (iii) not within a site that is designated or listed as a city or county landmark/historic property/district.

SB1120 cleared the Assembly with only minutes left in the session, leaving too little time for it to return to the Senate for passage, which makes this year’s SB9 a bill to closely watch.

SB10 (Wiener)

Senator Wiener’s SB10 is a refresh of SB902 from last session that would allow—but not require—local governments to upzone qualified parcels for up to ten-unit apartment buildings. The allowance for streamlined upzoning would only apply in urbanized locations close to job-rich areas, which are defined as areas rich with jobs or would enable shorter commute distances, and/or transit rich areas, which are defined as areas within half a mile of a major transit stop. While SB10 creates a shortcut for upzoning, it does not provide for streamlined project approvals, i.e., projects within upzoned areas would remain subject to CEQA and other local approval processes. SB10 requires the Department of Housing and Community Development, in consultation with the Office of Planning and Research, to determine jobs-rich areas and publish a map of those areas by January 1, 2022.

SB30 (Cortese)

Senator Cortese’s SB30 would prohibit after January 1, 2022, the construction of a state building connected to the natural gas grid and prohibit state funding or other support for construction of residential and nonresidential buildings that are connected to the natural gas grid.

SB6 (Caballero, Eggman, Rubio)

SB6 is a second attempt to pass the Neighborhoods Homes Act that would override local prohibitions on residential uses on properties (no size limit) within any commercial zone, except where office uses and retail uses are not permitted or only permitted as an accessory use, that is not adjacent to an industrial use. Densities allowed fall into the range from 15 dwelling units/acre in rural areas to 30 dwelling units/acre in highly urbanized areas, with suburban areas allowing at least 20 dwelling units/acre. Housing development projects would still be subject to local zoning and parking controls, objective design review and permitting processes, and CEQA would be applicable. Projects taking advantage of the Neighborhoods Homes Act would be required to pay prevailing wages or use skilled and trained labor.

Authored by Reuben, Junius & Rose, LLP Attorney Justin A. Zucker.

Oakland Entitlement Extensions, Is California Next?

August 12, 2020 | Justin A. Zucker

On July 27, 2020, Oakland City Administrator, Edward D. Reiskin executed Emergency Order No. 6 extending planning entitlements that have not expired as of March 9, 2020 (when Oakland’s COVID-19 Local Emergency was first declared), but are set to expire on or before August 1, 2022, by two (2) years. A project sponsor must submit a ministerial application and payment of the Administrative Extension Fee for an entitlement extension. Upon satisfaction of those requirements, the entitlement’s expiration date will automatically be extended by two (2) years. Emergency Order No. 6 does not cover entitlements eligible for extension under the city’s impact fee programs for Jobs/Housing, Affordable Housing, and Transportation and Capital Improvements.

If this sounds familiar to you, it is. In the wake of the nation’s last recession, Oakland enacted an extension of all non-expired entitlements. At that time, Oakland was grappling with a continuing weak housing and credit market.

Even prior to the pandemic, California was in the midst of a housing crisis. For years, demand has outpaced supply at all income levels. The economic fallout from the ongoing COVID-19 pandemic is ripping through the country. The extent of its lasting impacts are yet to be determined. To alleviate pressure in the housing sector exacerbated by the pandemic, State Senator Scott Wiener has introduced Senate Bill 281 (“SB 281”). SB 281 would automatically extend the period for expiration of a housing entitlement issued before and in effect on March 4, 2020, and expiring before December 31, 2021, by eighteen (18) months. A housing entitlement is defined as, among other things, a “legislative, adjudicative, administrative, or any other kind of approval, permit, or other entitlement necessary for, or pertaining to, a housing development project issued by a state agency” and “[a]n approval, permit, or other entitlement by a local agency for a housing development project.”

In a nod to the ever-present threat of litigation and the weaponization of CEQA often employed to stymie housing projects, the bill’s authors include a tolling provision. If passed, the 18-month entitlement extension would be tolled during any time that the housing entitlement is the subject of legal challenge.

The authors of SB 281 seek a statewide entitlement extension to avoid the significant cost and allocation of local government staff resources associated with addressing individual permit extensions on a case-by-case basis. This makes sense. Under Oakland’s entitlement extension, a project sponsor must submit an application that, while ministerial, still requires administrative resources to process. Having an automatic entitlement extension would reduce cities’ administrative burdens at a time when their limited funds are drying up and tax bases are shrinking.

We will continue to monitor SB 281, and will update readers accordingly.