Governor Brown signed 15 bills into law on September 29, 2017 that are designed to help address California's affordable housing crisis. The approved bills take different approaches to the housing shortage in California, including providing more funding for affordable housing development, streamlining local government approval of housing projects, restoring local government's authority to impose inclusionary housing requirements on private housing developers, and strengthening the state's anti-NIMBY laws. The new laws have implications and obligations for municipalities, housing related public agencies, and private developers. To help explain the new affordable housing regulatory landscape, Meyers Nave presented a three-part series addressing the most critical issues under the new laws. This presentation focuses on tightening state requirements for local housing including: -New Housing Element Law Requirements and New “No Net Loss” Requirements – State Tightening Local Accountability for Accommodating Fair Share of Housing Production (AB 1397, SB 166, AB 879, AB 72) -New Housing Accountability Act requirements – Putting Teeth in State Anti-NIMBY Laws (SB 167, AB 678, AB 1515) -Accessory Dwelling Unit Requirements – Making Second Units Workable for Homeowners (AB 494, SB 229) -Do’s and Don’ts for local governments -How developers can use the new laws to get housing projects approved

1. TIGHTENING STATE
REQUIREMENTS FOR LOCAL
HOUSING
Jon Goetz, Principal
Eva Plaza, Of Counsel
February 8, 2018

2. 2
• New Housing Element Law Requirements and New
“No Net Loss” Requirements
• Accessory Dwelling Units
• Housing Accountability Act (Anti-NIMBY Law)
• Do’s and Don’ts for local governments
• Strategies for developers
Overview

3. New Housing Element Law Requirements
and New “No Net Loss” Requirements

4. 4
• Changes standards for inclusion of sites on a housing
element inventory
• Parcels must have sufficient water, sewer and dry
utilities to support housing development
• Restricts use of nonvacant sites included in one prior
housing element, and vacant sites included in two
prior housing elements, where no housing has been
approved on the site
• Sites smaller than ½ acre and larger than 10 acres are
not adequate for low income housing
Housing Element Sites – AB 1397

5. 5
• Restricts inclusion of sites
that are airspace above
publicly owned or leased sites
• Limits on including more than
50% nonvacant sites
• Sites with current or recently
demolished residential units
require replacement housing
provisions
• Standards for realistic density
of sites are tightened
• Must identify governmental
and nongovernmental
constraints
Housing Element Sites – AB 1397

6. 6
• Under existing law, Housing Element site inventory
must accommodate RHNA
• Findings required if City/County reduces density or
permits development at lower density
A. Reduction is consistent with General Plan
B. Remaining sites are adequate to meet RHNA
No Net Loss – SB 166

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• Clarifies ongoing requirement to ensure sufficient
sites to meet RHNA
• Findings must be based on quantification
of remaining:
– Unmet RHNA need at each income level
– Capacity of sites at each income level
SB 166 Changes

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• If approval results in insufficient units in an
income category:
– City/county must make available substitute sites
within 180 days
– No CEQA required to add sites to inventory
SB 166 Changes

9. 9
• HCD to study reasonableness of local fees charged to
new developments
• Housing Element must discuss and remove
nongovernmental constraints
• Existing law focus on financing availability, land
prices, construction costs
• Now need to include requests for lower density and
time between project approval and building permit
application
Housing Element Changes – AB 879

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• Housing Element analysis of
governmental constraints to
include local ordinances that
impact development
• Requires charter city
submission of annual reports
Housing Element Changes – AB 879

11. Accessory Dwelling Units

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EXISTING LAW BILL
Law requires ordinance to designate areas
where ADU’s may be permitted, impose
standards, conditions and density
Ordinance for creation for ADUs in areas
zoned for family/multifamily use.
• Prohibit separate sale of ADUs
• Extended max. standards for proposed
ADU on lot for res. use that includes
proposed single family dwelling
Authorizes location of required replacement
parking spaces when parking structure
demolished
• Authorization when parking is converted to
ADU
• Defines tandem parking
ADU’s not new residential uses for purposes
of connection fees/capacity charges for
utilities; no requirement to install new or
separate connection
Extends to special districts/water corps.
Submit copy of ordinance to DHCD within 60
days
Review and comment on ordinance
Additional changes to § 65852.2 only if both
AB 494 or SB 229 are enacted
AB 494 and SB 229

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• Agency may allow ADU’s in single-family or
multifamily zones
– Designate areas where ADU’s permitted (based on
water & sewer services adequacy and impact on
traffic flow/public safety);
– Impose standards on ADU’s and reduce/eliminate
parking requirements for ADUs;
– Provide not to exceed allowable density & ADU’s
are a residential use consistent with the existing
general plan/zoning; and
– Require ADU’s to comply.
Amending Section 65852.2

14. 14
• Doesn’t limit residential growth
• ADU applications for permits shall be
considered ministerially without discretionary
review/hearing within 120 days
• Agency may charge fee to reimburse it for
costs incurred
• No other local ordinance, policy, or reg. shall
be basis for denial of building/use permit
• This subdivision establishes maximum
standards to evaluate proposed ADU (in
residential area). Local requirements re:
owner-occupant or long term rentals are ok.
• ADU’s shall not be considered to limit
residential growth
Amending Section 65852.2 (con’t)

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• If an agency receives its first application and has not
adopted an ADU ordinance  accept application and
ministerially review within 120 days
• Agency may establish minimum/max unit size requirements
for attached and detached ADU
• Agency can not impose parking standards for an ADU if:
– Located within one-half mile of public transit or
architecturally/historically significant historic district
– Part of the proposed/existing primary residence or an accessory
structure
– When on-street parking permits are required but not offered to
the occupant of ADU
– When there is a car share vehicle located within one block of
the ADU
Amending Section 65852.2 (con’t)

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• Agencies shall ministerially approve application for a
building permit to create ADU (if contained within the
existing space and has independent exterior access)
• ADU are not new residential uses for purposes of
connection fees or capacity charges for utilities
• ADU’s not required to install new or separate utility
connection between the ADU and the utility
• Connection fee/capacity charges proportionate to the
burden of ADU (and reasonable)
• May adopt less restrictive requirements for ADU
• Shall submit ordinance to the DHCD within 60 days
after adoption
Amending Section 65852.2 (con’t)

17. Housing Accountability Act (Anti-NIMBY Law)

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For VL/Low/Mod/Middle Income projects, city or
county may not, without making statutory finding:
• Disapprove a housing development project
• Conditionally approve project making project
infeasible
Requirements for Affordable Housing/Shelters

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1. Jurisdiction has met RHNA needs for income
level of project
2. Project has “specific adverse impact” on public
health or safety, and no feasible mitigation
3. Denial or conditional approval required by
federal or state law
4. Project is on agricultural land or resource
preservation land
Required Findings

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5. Project is inconsistent with both zoning and general
plan land use can’t:
A. Disapprove/condition sites in housing element
B. Disapprove if agency has no housing element
inventory
C. Disapprove shelter if agency hasn’t designated
shelter zone
Required Findings (con’t)

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• Objective, quantifiable
written development
standards, conditions,
policies are OK
• Standards, conditions,
policies must facilitate
permitted density
• Exactions are OK
Other Requirements

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City or County may not, without making a
statutory finding:
• Disapprove a housing development project
• Conditionally approve project making project
infeasible
Requirements for Market Rate Housing

23. 23
Project has “specific adverse impact” on
public health or safety
No feasible mitigation method
Required Findings

24. 24
• Attorneys’ fees payable to prevailing party for
low/mod projects
• Attorneys’ fees not available for prevailing
party in market rate projects
• Courts may fine local agencies
Penalties

25. 25
• Local agencies must inform applicants
of inconsistencies within 30 days (150
units or less) or 60 days (more than
150 units)
• Housing development includes
mixed use projects with 2/3 housing
• Objective standards means no personal
or subjective judgment, use of uniform
benchmarks/criteria
• Density bonus does not make project
inconsistent
New Laws (AB 678, SB 167, AB 1515)

26. 26
• Less deference to city/county
inconsistency findings
• Evidence standard changes from
“substantial evidence in record” to
“preponderance of evidence”
• Housing organizations can obtain legal fees
• Courts must fine $10K per unit for
noncompliance, up to $50K per unit for bad
faith
New Laws (AB 678, SB 167, AB 1515)

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Prepare objective standards for development
Inform participants on limits to discretion for
land designated for housing
Be ready to act fast on housing applications
Strategies for Cities & Counties

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Target development in areas zoned and
general plan designated for housing, on
housing element inventories
Need to inform participants on limits
to city/county discretion for land
designated for housing
Strategies for Landowners, Developers, Groups

29. 29
Discussion
Q&A

30. 30
Presenters
Jon Goetz
Principal
jgoetz@meyersnave.com
800.464.3559
Eva Plaza
Of Counsel
eplaza@meyersnave.com
800.464.3559
• Economic Development, Real Estate
and Housing
• Municipal and Special District Law
• Land Use
• Environmental Law
• Economic Development, Real Estate
and Housing
• Municipal and Special District Law
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