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Misguided Housing Bill Bans Single-Family Zoning Forever: Here are SB-9's nitty gritty details
**If you agree that Senate Bill 9 should be reversed, please support the SB-9 Lawsuit and the Our Neighborhood Voices Initiative. See the “TAKE ACTION” recommendations at the end of this article for more details about the lawsuit and the ballot measure.
Senate Bill 9 (Atkins), a controversial and fundamentally flawed housing bill, was signed into law by Governor Newsom on September 16th. The bill is an unprecedented taking of local planning powers that hands county, city and community decision-making directly to housing developers. Overtime, the legislation will ruin treasured single-family neighborhoods.
SB-9 ends single-family zoning and requires local governments to ministerially approve and let property owners split single-family parcels (as small as 2400 sq. ft.) into two lots (each as small as 1200 sq. ft.) and then build duplexes on each lot. The result would be four homes, where there used to be only one. Side and rear setbacks are restricted to only four feet and off-street parking requirements are significantly reduced or eliminated.
“Ministerial” approval streamlines the permit process and eliminates discretionary review, environmental review in compliance with the California Environmental Quality Act (CEQA), and public hearings, thereby stifling public engagement, democracy, high-quality development, and environmental protections.
The Office of the Governor and the authors of the bill claim these provisions will expand housing options for people of all incomes. However, there is absolutely no requirement for any affordable housing to be built in the legislation.
This article examines the fine print of the final version of Senate Bill 9 and sheds light on misinformation that mainstream media has propagated.
SB-9 Severely Lowers Off-Street Parking Requirements
SB-9 lowers parking requirements to just one space per home and totally eliminates parking requirements on developments located within one-half mile walking distance of either a "high-quality transit corridor" or a "major transit stop" or if there is a car share vehicle located within one block of the parcel.
- A "high-quality transit corridor" means a corridor with fixed route bus service with service intervals no longer than 15 minutes during peak commute hours.
- A “Major transit stop” means a site containing an existing rail transit station, a ferry terminal served by either a bus or rail transit service, or the intersection of two or more major bus routes with a frequency of service interval of 15 minutes or less during the morning and afternoon peak commute periods.
SB-9 Endangers Communities in the Wildland Urban Interface, High Fire Hazard Zones, Very High Fire Hazard Zones, and Constrained Areas with inadequate access and evacuation routes
Burning Vehicle - Flickr
SB-9 endangers communities in the Wildland Urban Interface, High Fire Hazard Zones, Very High Fire Hazard Zone, and Constrained Areas with inadequate and unsafe access and evacuation routes in the event of a fire or other emergency. As housing density and population significantly increase, the access and evacuation routes of these hazardous neighborhoods will become even more congested. Dire consequences could result during an emergency when residents are unable to evacuate and fire trucks/paramedics are unable to reach their destinations.
Moreover, the bill makes it very difficult for local jurisdictions to protect these hazardous areas.
Numerous articles incorrectly claim that SB-9 exempts High and Very High Fire Hazard Severity Zones. However, the fine print tells a different story.
SB-9 does not directly protect fire hazard severity zones with inadequate and unsafe access and evacuation routes in the event of a fire or other emergency due to the below clause (in blue & bold) from Government Code Section 65913.4, which SB-9 incorporates.
Excerpt from the text of SB-9 (in blue):
"Section 1 (a) (2)
(2) The parcel satisfies the requirements specified in subparagraphs (B) to (K), inclusive, of paragraph (6) of subdivision (a) of Section 65913.4."
This references the below Section 65913.4 in the Government Code regarding the specific prohibited sites:
Excerpt from CHAPTER 4.2 Housing Development Approvals: Government Code Section 65913.4 (in blue):
“(a) A development proponent may submit an application for a development that is subject to the streamlined, ministerial approval process provided by subdivision (c) and is not subject to a conditional use permit if the development complies with subdivision (b) and satisfies all of the following objective planning standards:
(6) The development is not located on a site that is any of the following: …
(D) Within a very high fire hazard severity zone, as determined by the Department of Forestry and Fire Protection pursuant to Section 51178, or within a high or very high fire hazard severity zone as indicated on maps adopted by the Department of Forestry and Fire Protection pursuant to Section 4202 of the Public Resources Code. This subparagraph does not apply to sites excluded from the specified hazard zones by a local agency, pursuant to subdivision (b) of Section 51179, or sites that have adopted fire hazard mitigation measures pursuant to existing building standards or state fire mitigation measures applicable to the development."
Any new development would need to comply with fire hazard mitigation measures pursuant to existing building standards or state fire mitigation measures. Building standards don't mandate off-street parking or improve street conditions. So, this section of the bill, which incorporates Government Code Section 65913.4, does nothing to protect hazardous communities with inadequate and unsafe emergency access and evacuation routes.
The only way a jurisdiction can possibly protect hazardous properties with inadequate and unsafe emergency access and evacuation routes is to comply with the following new section that was recently added to the bill.
Excerpt from the text of SB-9 (in blue):
"(d) Notwithstanding subdivision (a), a local agency may deny a proposed housing development project if the building official makes a written finding, based upon a preponderance of the evidence, that the proposed housing development project would have a specific, adverse impact, as defined and determined in paragraph (2) of subdivision (d) of Section 65589.5, upon public health and safety or the physical environment and for which there is no feasible method to satisfactorily mitigate or avoid the specific, adverse impact."
So, for every single proposal to up-zone a single-family parcel to 4 units (via SB-9), a jurisdiction would have to make a written finding, based upon a preponderance of evidence, that the proposed housing development project would have a specific, adverse impact upon public health and safety or the physical environment and for which there is no feasible method to satisfactorily mitigate or avoid the specific, adverse impact. This could be very costly.
Moreover, the evaluation of just one single-family parcel (at which a single-family home would be converted into 4 units) at a time, won't show the true adverse impacts of housing development per SB-9. Cumulative impacts would most likely be necessary. So, a jurisdiction would need to do some sort of environmental or safety assessment for all its single-family zones. Again, this type of broad assessment would be very time consuming and expensive.
Communities in the Wildland Urban Interface, High Fire Hazard Zones, Very High Fire Hazard Zones and Constrained Areas should be automatically exempt from SB-9 but they are not.
SB-9 Endangers Communities In Earthquake Fault Zones
San Andreas Fault - Wikipedia
Similar to the exclusion of fire risk areas, SB-9’s exemption for earthquake fault zones is meaningless. The fault zone exemption doesn’t apply if the duplexes (or fourplexes) comply with applicable seismic protection building code standards, which any new development would abide by.
Excerpt from the text of SB-9 (in blue):
"Section 1 (a) (2)
(2) The parcel satisfies the requirements specified in subparagraphs (B) to (K), inclusive, of paragraph (6) of subdivision (a) of Section 65913.4."
This references the below Section 65913.4 in the Government Code regarding the specific prohibited sites:
Excerpt from CHAPTER 4.2 Housing Development Approvals: Government Code Section 65913.4 (in blue):
“(a) A development proponent may submit an application for a development that is subject to the streamlined, ministerial approval process provided by subdivision (c) and is not subject to a conditional use permit if the development complies with subdivision (b) and satisfies all of the following objective planning standards:
(6) The development is not located on a site that is any of the following: …
(F) Within a delineated earthquake fault zone as determined by the State Geologist in any official maps published by the State Geologist, unless the development complies with applicable seismic protection building code standards adopted by the California Building Standards Commission under the California Building Standards Law (Part 2.5 (commencing with Section 18901) of Division 13 of the Health and Safety Code), and by any local building department under Chapter 12.2 (commencing with Section 8875) of Division 1 of Title 2.”
Like fire risk areas, the only way a jurisdiction can protect hazardous properties in earthquake fault zones is to comply with the following new section that was recently added to the bill, which would be time consuming and costly for a jurisdiction.
Excerpt from the text of SB-9 (in blue):
"(d) Notwithstanding subdivision (a), a local agency may deny a proposed housing development project if the building official makes a written finding, based upon a preponderance of the evidence, that the proposed housing development project would have a specific, adverse impact, as defined and determined in paragraph (2) of subdivision (d) of Section 65589.5, upon public health and safety or the physical environment and for which there is no feasible method to satisfactorily mitigate or avoid the specific, adverse impact."
SB-9 Limits Side & Rear Setbacks To Just 4 Feet
On September 17th, a Bay Area News Group published an article by Maggie Angst entitled; "What California's new SB9 housing bill means for single-family zoning in your neighborhood". The article states: "Developments must still follow local zoning rules such as those governing height and yard size requirements." This is false.
Excerpt from the text of SB-9 regarding setbacks (in blue):
"(2) A local agency shall approve an urban lot split only if it conforms to all applicable objective requirements of the Subdivision Map Act (Division 2 (commencing with Section 66410)), except as otherwise expressly provided in this section...
(3) (A) Notwithstanding paragraph (2), no setback shall be required for an existing structure or a structure constructed in the same location and to the same dimensions as an existing structure.
(B) Notwithstanding paragraph (2), in all other circumstances not described in subparagraph (A), a local agency may require a setback of up to four feet from the side and rear lot lines."
Per the above excerpt, a jurisdiction may require side and rear setbacks of up to 4 feet but no larger. This is the same as the setback requirements in the new Accessory Dwelling Unit (ADU) legislation.
Therefore, SB-9 eliminates the following aesthetic and functional benefits that proper setbacks provide:
- Better protection of public safety: Having space between houses and streets, etc., ensures that in the case of a fire or other emergencies, first responders can access the property and residents can evacuate rapidly and safely.
- Better preservation of the environment: For residential properties that are located adjacent to streams, wetland, forests, and other natural habit, proper setbacks are critical for the wellbeing of the habitat and wildlife, including endangered species, that live there.
- Better services: Proper setbacks ensure that maintenance personnel can safely and easily access the property for such services as sewer, utilities, and cable, etc.
- Better ventilation and public health: Not having a house squished up against another house or roadways gives residents cleaner air. This means residents won’t be breathing in toxic exhaust or a neighbor’s smoking habit.
- Better lighting: Property setbacks ensure that there is plenty of space around dwellings to bring in natural light and better visual access.
- Better sound insolation: Property setbacks help ensure better sound insulation by building away from busy intersections and other noisy environments.
- Better landscape: Landscaping makes a home more inviting and gives a sense of ease. Gardens provide residents with a place to enjoy the outdoors and commune with nature. They give children a place to play. Trees remove carbon from the air and help to cool our communities. Permeable ground cover helps to replenish groundwater resources, restore hydrologic balance and reduce runoff volume.
- Additional benefits: Property setbacks help ensure buildings don’t fall over each other in the case of a natural disaster, like an earthquake or fire. They encourage outdoor activities in public areas, and help keep the sanity of society by giving people enough room to roam.
SB-9 Reduces The Ability To Achieve The American Dream – Owning A Single-Family Home In A Single-Family Neighborhood
Single Family Home - Flickr
A 2019 Redfin survey found that regardless of where people live within the US, more than 85% of home buyers and sellers (including millennials) prefer single-family homes with more space, privacy, and gardens over a unit in a triplex that has a shorter commute.
Moreover, realtors report a recent trend of city dwellers wanting to move to single-family neighborhoods in the suburbs to escape dense living conditions, which contribute to the spread of COVID-19.
Over time, the bill will cause the supply of single-family homes to diminish due to conversions to duplexes or "fourplexes" and the price for the remaining single-family dwellings will become even more expensive. This will make it more difficult for residents to attain their preferred lifestyle.
SB-9 Restricts Who Can Apply For A Lot Split And/Or Duplex
Wall Street - Wikipedia
SB-9 restricts who can apply for a lot split and/or duplex, in accordance with the bill.
Excerpt from the text of SB-9 (in blue):
"(g) (1) A local agency shall require an applicant for an urban lot split to sign an affidavit stating that the applicant intends to occupy one of the housing units as their principal residence for a minimum of three years from the date of the approval of the urban lot split.
(2) This subdivision shall not apply to an applicant that is a “community land trust,” as defined in clause (ii) of subparagraph (C) of paragraph (11) of subdivision (a) of Section 402.1 of the Revenue and Taxation Code, or is a “qualified nonprofit corporation” as described in Section 214.15 of the Revenue and Taxation Code."
So, either the applicant will reside on the property for 3 years or else the applicant is a "community land trust" or a "qualified nonprofit corporation".
What is a "Community Land Trust"?
https://codes.findlaw.com/ca/revenue-and-taxation-code/rtc-sect-402-1.html
"(ii) “Community land trust” means a nonprofit corporation organized pursuant to Section 501(c)(3) of the Internal Revenue Code that satisfies all of the following:
(I) Has as its primary purposes the creation and maintenance of permanently affordable single-family or multifamily residences.
(II) All dwellings and units located on the land owned by the nonprofit corporation are sold to a qualified owner to be occupied as the qualified owner's primary residence or rented to persons and families of low or moderate income.
(III) The land owned by the nonprofit corporation, on which a dwelling or unit sold to a qualified owner is situated, is leased by the nonprofit corporation to the qualified owner for the convenient occupation and use of that dwelling or unit for a renewable term of 99 years."
What is a "Qualified Nonprofit Corporation"?
https://codes.findlaw.com/ca/revenue-and-taxation-code/rtc-sect-214-15.html
Here’s a description of a "qualified nonprofit corporation" as described in Section 214.15 of the Revenue and Taxation Code:
"(a) Property is within the exemption provided by Sections 4 and 5 of Article XIII of the California Constitution if that property is owned and operated by a nonprofit corporation, otherwise qualifying for exemption under Section 214 , that is organized and operated for the specific and primary purpose of building and rehabilitating single or multifamily residences for sale at cost to low-income families, with financing in the form of a zero interest rate loan and without regard to religion, race, national origin, or the sex of the head of household."
Therefore, for the time being, the bill seems to hinder for-profit Big Wall Street Investment Firms or Big Real Estate Developers from buying up single-family residences and turning them into fourplexes for profit. However, it would be easy for the legislators to make a minor edit to the legislation next year and allow for this to happen in the near future.
SB-9 Significantly Increases The Risk Of Adverse Impacts
Sewage Spill - Wikipedia
SB-9’s vast up-zoning, without any environmental review of potential adverse impacts and cumulative effects, is reckless.
The 2007 Marin Countywide Plan’s (CWP’s) Environmental Impact Report (EIR) projected potential growth of 14,043 more housing units (more than the current number of homes in Sausalito and Mill Valley combined) and 29,759 more residents, if land vacant in 2006 were fully developed according to zoning designations of the cities in Marin County and the Countywide Plan. This didn’t include density bonuses. Alarmingly, the EIR concluded that “land uses and development consistent with the CWP would result in 42 significant unavoidable adverse impacts”, including worse traffic congestion and insufficient water supplies.
There are more than 61,200 single-family dwellings in Marin, according to a 2006 report by the County Assessor-Recorder. The County’s average household size is 2.35 people (per the CWP’s EIR). So, potential growth consistent with SB-9, in which single-family homes turn into duplexes or four homes, could be up to 183,600 more homes and 431,460 more residents, over and above the CWP EIR’s forecast. Such expansion is unsustainable.
SB-9’s subsequent housing density, population growth and changes to development standards would increase the risk of adverse impacts on the environment, public health and safety, traffic congestion, infrastructure, utilities (water supply), public services (schools), views, sunlight, privacy, neighborhood character, and quality of life.
SB-9 Will Create Unfunded Mandates
Bankruptcy - Flickr
SB-9 will create unfunded mandates. There is no funding for dealing with the above listed impacts and the bill provides an official sidestep of addressing this issue, per the below excerpt. Local jurisdictions and taxpayers will be responsible for paying the costs.
Excerpt from the text of SB-9 (in blue):
“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…”
National Law Review Article About Senate Bill 9
For more specifics about Senate Bill 9 and other recently enacted housing legislation, please click HERE to read the National Law Review article entitled; "California Enacts New Legislation to Combat Growing Housing Crisis, But Not Without Controversy".
TAKE ACTION!
Please support the SB-9 Lawsuit and the Our Neighborhood Voices Initiative. The lawsuit could roll back Senate Bill 9 and the ballot measure, if successful, will amend the State Constitution to ensure zoning, land-use and development decisions are made at the local level, and to stop the multitude of legislative bills like SB-9, emanating from Sacramento that seek to override municipal and county control over land-use and development.
To learn more about the lawsuit and the initiative, please click on the below links:
Link To More Information About The SB-9 Lawsuit:
Link To More Information About The "Our Neighborhood Voices Initiative":
https://ourneighborhoodvoices.com/