A watered down version of Senate Bill 828, which would have dramatically raised the number of units a jurisdiction must plan for, was recently passed by the State Senate. Although highly improved, there are still concerns about the bill and it would be better if it were defeated. The bill will now head to the State Assembly for review and possible approval.
Here are definitions of terms that will help you understand this article:
"General Plans": General plans serve as the local government’s "blueprint" for how the city and/or county will grow and develop and include seven elements: land use, transportation, conservation, noise, open space, safety, and housing. The law mandating that housing be included as an element of each jurisdiction’s general plan is known as “housing-element law.”
"Housing Element": Every jurisdiction must adopt a Housing Element as part of their general plan. The Housing Element is essentially a housing plan that must adequately plan to meet the housing needs of everyone in the community.
"Regional Housing Needs Allocation": The Regional Housing Needs Allocation (RHNA) is the state-mandated process to identify the total number of housing units (by affordability level) that each jurisdiction must accommodate in its Housing Element. In the bay area, each jurisdiction is assigned its RHNA by the Association of Bay Area Governments (ABAG).
IMPROVEMENTS TO SB-828:
SB-828 still increases the RHNA but less so: The bill automatically raises the Regional Housing Needs Allocation (RHNA), which is the state mandated number of housing units a jurisdiction must plan for, by 25% to equal 125%. However, this is lower than the original version of the bill. The previous version of the bill required cities and counties to identify enough land to meet 200% of their Regional Housing Need Allocation.
The unmet need audit is removed from the bill: The previous version of the SB-828 required a jurisdiction to plan for and potentially zone for more land for residential properties if a state audit showed there was a shortage in that community. This audit has been removed.
The rollover units were removed from SB-828: The bill had required a jurisdiction to plan for, and potentially zone for, housing units not built under production goals from the prior eight years. This section was removed.
The bill no longer mandates the building of new housing units: SB-828 in its amended form is advisory. Just like current law, this bill does not mandate the building of any new housing units. Although jurisdictions must still plan and zone for the number of housing units assigned to them through the RHNA process, which still has consequences.
The “shall” language in the legislation that required local municipalities to fulfill their Regional Housing Needs Allocation (RHNA) quota by ensuring the housing units were actually built was changed to “should”.
Why this is significant: The amended bill reverts back to existing law that essentially acts as guidance and encouragement for cities and counties rather than a mandate. There is no longer a mandate in this bill that requires local municipalities to fulfill their RHNA quota, which means they no longer need to ensure that the housing units they plan for are actually built. They do still have to plan and zone for the number of housing units assigned to them by the RHNA process.
REMAINING CONCERNS ABOUT SB-828
There are still concerns about SB-828. Although watered down, the bill still increases the pressure for cities and counties to plan for more and more housing.
Here is a newly amended section of the bill that makes it more difficult for a jurisdiction to lower its Regional Housing Needs Allocation (RHNA) if it feels that the number is too high:
"(f) The following criteria shall not be a justification for a determination or a reduction in a jurisdiction’s share of the regional housing need:
(1) Any ordinance, policy, voter-approved measure, or standard of a city or county that directly or indirectly limits the number of residential building permits issued by a city or county.
(2) Prior underproduction of housing in a city or county from the previous regional housing need allocation, as determined by each jurisdiction’s annual production report submitted pursuant to subparagraph (H) of paragraph (2) of subdivision (a) of Section 65400.
(3) Stable population numbers in a city or county from the previous regional housing needs cycle."
Here is a newly amended section of the bill that would assign additional weight (meaning increase housing quotas) to local governments that meet certain criteria:
"(j) (1) It is the intent of the Legislature that housing planning reduce racial and wealth disparities throughout a region. To achieve this goal, the allocation plan shall assign additional weight to local governments that meet the following criteria in subparagraphs (A) and (B) in the distribution of the regional housing needs allocation for all income categories, in particular housing needs allocations for low- and very low income households:
(A) A local government with median employed household incomes above the 50th percentile for the region.
(B) A local government that either contains a major regional job center, as determined by the council of governments, or contains high-quality public transportation for the region, such as a major transit stop or stops along a high-quality transit corridor, as defined in Section 21155 of the Public Resources Code, that connects to a regional job center.
(2) The resolution approving the final housing need allocation plan shall demonstrate government efforts to reduce racial and wealth disparities throughout a region by assigning additional weight to local governments that meet the criteria in subparagraphs (A) and (B) of paragraph (1) in the distribution of the regional housing needs allocation for all income categories, in particular housing needs allocations for low- and very low income households."
SB-828 still impedes cities’ and counties’ ability to implement lower density solutions in order to fulfill their housing need:
As noted before, SB-828 would require a jurisdiction to plan for 125% of its Regional Housing Needs Allocation (RHNA). The bill would also require at least 100% of the locality’s share of regional housing need (which would be raised to 125%) to be available for multifamily housing in developed areas. The 100% multifamily requirement does not allow many RHNA units for lower-, low-, and moderate-income households to be fulfilled with second units, accessory dwelling units, or junior accessory dwelling units. These lower density units are easier to build in smaller towns and counties, with little vacant land, where small-town and semi-rural character is valued and where there is strong opposition to high-density housing. More conversion units and assisted living units should also count toward the RHNA.
SB-828 would still increase SB-35 streamlining:
In short, Senate Bill 35 (a bill adopted in 2017) streamlines multi-family and mixed-use housing project approvals located in municipalities that either have failed to submit two or more annual housing reports or have not issued enough building permits to build the dwelling units called for by the jurisdiction's Regional Housing Needs Alllocation (RHNA). Should a municipality fall within the scope of SB-35, a proposed multi-family development project may apply under a streamlining approval process, which requires ministerial, or "by right", approval of a qualified development project.
Since SB-828 would increase a jurisdiction's Regional Housing Needs Allocation by 25%, there would then be greater probability that the jurisdiction would not have issued enough building permits to build the dwelling units called for by the jurisdiction's Regional Housing Needs Allocation. Thus, due to the combination of SB-35 and SB-828, there would be potential for more multi-family development projects to take advantage of SB-35’s streamlining and avoid CEQA and its required public engagement process on sites that meet SB-35 criteria.
Streamlining goes against the principles of local democracy and public engagement. Public hearings allow members of the community to inform their representatives of their support and/or concerns about potential development and leads to better project outcomes.
We should remain vigilant and follow SB-828 as it moves through the State Assembly.