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While the cat’s away: New housing legislation in California

While Californians have been in lock-down, worried about their health, their job, and their finances, working from home and home schooling their kids between Zoom meetings on too slow internet connections, the mice in Sacramento have been busier than ever. For State Senators Wiener, Atkins, Skinner, and Marin’s own Mike McGuire, among others (the “Senators”), this has been the perfect opportunity to advance an anti-suburban, anti-single-family housing, high density, ultra-progressive agenda.

Overview

The push to pass major legislation to override local control of zoning and planning started in earnest in 2008 with the passage of SB 375, which decreed that high density development was good for the environment. That trend continued, unabated, up until the colossal failure of Senator Scott Wiener’s SB 50: a law that attempted to remove almost all local control of municipality zoning and planning about density and heights and other “restrictions” to unlimited urbanism. But the push back on this aggressive agenda was even too much for some of Wiener’s historical allies.

So, the cabal of Wiener, Atkins, Skinner, McGuire, et al went back to the drawing boards. In that transition, Marin Senator Mike McGuire, in particular, appears to have made a deal with the Devil that he’ll support Wiener's agenda in a new piecemeal fashion, if they allowed him to appear to “stand up” to their agenda in public appearances.

Their emergent strategy now is to break the whole up into more “digestible” pieces, so as to put the compounding, cumulative impacts of new laws out of sight and mind. The strategy now is “death to the suburbs by a thousand cuts.”

In all this, we need to ask ourselves a fundamental question, which has nothing to do with affordability or lack of it.

Do we want a society in which decisions about how communities grow and achieve share goals to be micro-managed by centralized control and preset political ideologies or do we want to empower cities and counties with the tools and funding to enable them to meet those shared goals?

This is no longer a theoretical, an "it might happen someday" kind of question, but one that is being decided as I write this.

Density, Density, and More Density

Last year, Governor Newsom signed legislation that allows accessory dwelling units (ADUs) “by right” in single-family zoned neighborhoods with “ministerial” review (no public notice or hearings). This legislation overrode local ADU laws, most of which were well-crafted to deal with the unique circumstances of each municipality and limit increased density that put residents at risk (i.e., flood, wildfire, emergency response access, etc.).

Those sweeping, by right provisions are now under considerable challenge by local governments. The argument, in part, is that protecting the health, safety, and general welfare of residents is constitutionally mandated and must be a consideration by which government actions are measured.

But the Senators remain undeterred. Their endless stream of proposals are designed to leap past those objections so quickly that by the time local counter-arguments are heard, it will already be too late to matter.

The Senators' Endgame

The Senators are well aware of the fact that residential development is generally a revenue negative proposition for cities, especially if density is increased while commercial and retail zoned parcels are converted to residential use. The lost tax revenue from sales and business taxes reduces funding for public services, infrastructure, schools, and everything else cities do. Cities are left to either raise local taxes and fees (which voters are becoming more and more resistant to) or dramatically cut services and costs (which can be impossible considering their pay and outstanding pension benefit obligations).

For years the Senators, YIMBYs, and their corporate donors have had two major items on their wish list: getting rid of CEQA and getting rid of the homeowner protections under Prop. 13. As I’ve written, they are well on their way to achieving the first goal, but being able to open the floodgates to massive tax increases has eluded them, so far.

As more of these high-density schemes are signed into law, more and more cities will face bankruptcy. This would set the stage to push for legislation to repeal Prop. 13 and create an investment gold rush to convert single-family neighborhoods to high density, multifamily.

So, the best way for force the repeal of Prop. 13 is to drive California cities to the verge of bankruptcy, which they consider a small price to pay for the "greater good."

The Senators are also aware that the huge tax increases that would result from the repeal of Prop. 13 would force the elderly to sell their single-family homes (what Prop. 13 was passed to protect against). But, again, they consider this a good thing, because it will free up more housing units as the elderly are relegated to diminished living conditions. YIMBY leadership has even suggested that we need legislation that forces anyone over 65 to sell their single-family homes and move into condos or apartments.

The Legal Landslide

Among the new laws California legislators are currently working hard to push to a vote are the following (to help readers get a quick take, text is bolded to highly the major provisions of each law):

Senate Bill 1120 – Doubling Single-Family Land Use

SB 1120 intends to double the density of homes on single-family zoned parcels, by allowing two homes where only one stood, originally, by splitting a lot in half. This would also be allowed by ministerial review (no notice, no public hearings) and turns single-family zoning into duplex zoning (e.g., attached townhomes) and possibly more.

The only significant conditions the proposed law puts on this development is that the resultant lots be no smaller than 1,200 square feet and the proposed housing development does not require “demolition or alteration requiring evacuation or eviction of an existing housing unit that is subject to a recorded covenant, ordinance, or law that restricts rents to levels affordable to persons and families of moderate, low, or very low income.”[1]

Another twist in the law is that this new development is not subject to the requirements and protections of the California Environmental Quality Act (CEQA), because CEQA does not apply to projects approved by “ministerial” review. And the law has no affordability requirements on the new units.

Marin Senator Mike McGuire, SB 1120’s principal coauthor with Senator Wiener, is asking us to believe that doubling the number of full sized homes on a street would not have any cumulative impacts on traffic, parking, water runoff, air pollution, infrastructure, etc..

Finally, as is now standard for all these new bills, the Legislative Counsel notes,

“The bill would include findings that changes proposed by this bill address a matter of statewide concern rather than a municipal affair and, therefore, apply to all cities, including charter cities.” …And therefore, “This bill would provide that no reimbursement is required by this act.”

The full text, as written the law, states,

“SEC. 4. The Legislature finds and declares that ensuring access to affordable housing is a matter of statewide concern and not a municipal affair as that term is used in Section 5 of Article XI of the California Constitution. Therefore, Sections 1 and 2 of this act adding Sections 65852.21 and 66411.7 to the Government Code and Section 3 of this act amending Section 66452.6 of the Government Code apply to all cities, including charter cities.

“SEC. 5. No reimbursement is required by this act pursuant to Section 6 of Article XIII B of the California Constitution because a local agency or school district has the authority to levy service charges, fees, or assessments sufficient to pay for the program or level of service mandated by this act, within the meaning of Section 17556 of the Government Code.” [Emphasis added]

Senate Bill 1085

Written by Senators Skinner and Caballero, with principal coauthors Mike McGuire, Lena Gonzalez, and Susan Rubio, SB 1085 changes the State Density Bonus law.

The bill purports to increase affordable housing by increasing the density bonuses, incentives, and concessions offered by cities to developers. This includes some minor adjustments to require more affordable units in a project, in order to qualify for a density bonus, and it requires more reporting by local agencies to the state. However, the most significant change to existing law relates to environmental impacts.

As discussed in my recent articles, the demise of environmental protections in California continues, unabated. As noted by the Legislative Counsel,

“Existing law authorizes a city or county to refuse a [developer] concession or incentive if the city or county makes a written finding, based upon substantial evidence that the concession or incentive would have a specified adverse impact on public health and safety, the physical environment, or real property listed in the California Register of Historical Resources.

This bill would remove the specified adverse impact on the physical environment from the list of reasons for which a city or county is authorized to refuse a concession or incentive.” [Emphasis added]

The negative consequences of removing adverse impacts on the physical environment, regardless of their scale and scope, as a legitimate argument for a city to deny a developer the right to build more density, needs no explanation.

It is contradictory to the fundamental premise of CEQA and is literally a license to decimate the environment.

Senate Bill 902

Senate Bill 902, as written and amended by Senator Wiener, is the shortest but perhaps the most egregious of all the newly proposed bills coming forward. Much has been written about its troublesome provisions and impacts, one piece in particular is by Sharon Rushton of Sustainable Tam/Almonte, which can be read by clicking here.

In a nutshell, under the guise of promoting affordable housing, the Legislative Counsel sums it up as follows:

“This bill would authorize a local government to pass an ordinance, notwithstanding any local restrictions on adopting zoning ordinances, to zone any parcel for up to 10 units of residential density per parcel, at a height specified by the local government in the ordinance, if the parcel is located in a transit-rich area, a jobs-rich area, or an urban infill site, as those terms are defined.

“In this regard, the bill would require 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 every 5 years.

“The bill would specify that an ordinance adopted under these provisions is not a project for purposes of CEQA, the California Environmental Quality Act.”

In other words, a group of unelected, clandestine bureaucrats in Sacramento (translation: political appointees) will sit around and make up a map delineating, in their sole opinion, which areas should be designated to be “jobs rich” or “transit rich,” or is an “urban infill site,” and developers will then be able to force density of up to 10 units “per parcel” (regardless of how small that parcel might be).

All of this will be categorically exempt from CEQA review or requirements.

The absurdity of this proposal is beyond the pale.

As it reads, every single-family zoned parcel in California within the prescribed types of designation areas – transit rich, jobs rich, and urban infill – could be filled with ten unit buildings. For example, in downtown San Rafael, in Marin, 5,000 square foot, single-family parcels with an existing 35 foot height limit could be displaced by 10 unit micro-apartment developments, packed cheek to jowl.

And since parking, traffic, infrastructure, schools, lack of public services, and other impacts are no longer assessed or grounds for denial, there’s not a thing local government or residents can do about it.

Senate Bill 1385

This bill[2], called “the Neighborhood Homes Act,” would permit multifamily housing on land currently zoned for office or retail commercial use. The bill would require housing density of at least 20 units per acre.

SB 1385 claims that new housing development would still be subject to the local residential multifamily zoning (if that exists), parking requirements, and design review and require public notice, comment, and public hearings. However, most of the other laws being proposed and laws passed in the last 10 years have added language that has already removed most of these requirements, in most cases, for reasons unaltered by SB 1385, making this “local control” pledge hollow.

In fact, in the context of other existing laws, this legislation is so poorly written, so filled with micro-managing formulas, percentage benchmarks, and allowance definitions that it is almost undecipherable.

Development approval would also be streamlined, provide a ministerial approval process, and would void any existing conditional-use requirements, if a building site is already zoned for mixed-use development.

This means all the existing, well-crafted, local standards for allowing residential conditional-use are thrown out. Nonsensically, the Legislative Counsel goes on to say that

“…the proposed development is also required to be consistent with objective zoning standards, objective subdivision standards, and objective design review standards in effect at the time the development is submitted to the local government.”

But what are “objective standards?” The bill fails to offer a definition. And how can new mixed-use, residential development “be consistent with” the “standards in effect at the time,” when no such standards exist in commercial zones?

Worse still, commercial and retail zoning makes up a significant percentage of any city’s land use and its major source of sales tax and other types of business tax revenues. To suddenly zone all of it multifamily residential is civic suicide, to put it mildly.

This proposed law would have direct, negative impacts on every city in the Bay Area.

For example, in Mill Valley, the city and community spent years developing a “conditional use” zoning ordinance to allow mixed-use, residential multifamily development on Miller Avenue, a one mile arterial that contains a significant amount of the city’s commercially zoned land. These regulations carefully consider things like the infrastructure demands and how traffic and parking impacts the viability of retail and office uses. It was tailored to the specifics of the town and the businesses in it, in order to develop a plan that benefited all.

Now all of that would be wiped away. And for what?

Part of the answer to that brings us back to my comments above about how replacing retail and commercial zoning with more and more housing will eventually bankrupt cities and force the repeal of Prop. 13.

Senate Bill 995

This proposed legislation, ostensibly being promoted as an “environmental protection” law, is a revision to previously proposed legislation that was called the “Environmental quality: Jobs and Economic Improvement through Environmental Leadership Act of 2011: housing projects.” It comes to us courtesy of Senators Atkins and Wiener, who are both fond of taking older, failed legislation and using it as a “shell” within which to do as they please.

Put simply, SB 995 says, the state should be able to pay cities (with taxpayer funds) to do a “master environmental impact report,” when a city does a “general plan, plan amendment, plan element, or specific plan for housing projects,” in order to “streamline and expedite environmental review for housing projects,” which results in reducing the environmental protections for those same taxpaying residents.

On its surface, SB 995 appears to be an innocuous technical revision to existing law, but it is much more than that. SB 995 deals with a controversial issue regarding the respective requirements of “Program EIRs” and “Project EIRs.”

As it is today, cities and government agencies do Program EIRs when they write land planning and zoning regulations, such as for a General Plan. Then when a specific project (e.g., an apartment proposal) is presented, the agency decides whether a Project EIR (specific to that individual project) is also required. The city decides this based on what the Program EIR covered and by making project specific findings about what potentially significant environmental impacts might still need to be addressed.

Generally, developers try their best to convince the city that no Project EIR is required, and cities often bend over backwards (translation: they make backroom deals) to avoid the lengthy public process involved in doing a Project EIR.

SB 995 undermines the requirements to do a Project EIR and benefits no one but the developer.

A good example of why this is not advisable can be found in Marin County: the infamous 180 unit “WinCup” project, now known as the Tam Ridge Apartment, in the town of Corte Madera.

This project was approved by relying on a General Plan Program EIR that did not even mention the Tam Ridge Apartments parcel by name. Even though the previous parcel users manufactured Styrofoam products in a factory on the parcel, a process that uses known carcinogens and produces carcinogenic waste, the project was approved and built without even doing a soils report to test for residual toxins on the site.

This is the kind of “environmental protection” Senators Wiener and Atkins want to apply to all multifamily development, and they want you to pay for it.

They want to strengthen the ability for a city to streamline development approval by relying on program EIRs in order to avoid project specific and cumulative environmental impacts assessment.


[1] https://legiscan.com/CA/text/SB1120/id/2187021

[2] https://legiscan.com/CA/text/SB1385/id/2187036


Bob Silvestri is a Mill Valley resident and the founder and president of Community Venture Partners, a 501(c)(3) nonprofit community organization funded only by individuals in Marin and the San Francisco Bay Area. Please consider DONATING TO CVP to enable us to continue to work on behalf of California residents.