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Other important details cities must consider to address the impacts of SB 9
The article entitled, “Cities and Counties have until December 31st to adopt resolutions to control SB 9 impacts” missed an important point regarding invoking the safety exception. It requires a two-step process.
Step 1 is that a city needs to have written policies in place before an application for a project under SB9 is deemed complete. Step 2 is then to apply that policy to a specific application. Also, the same approach can be taken regarding ADUs.
Here is my analysis of the safety exception to SB9:
Section 1 of the bill includes this language:
“(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.”
Section 2 of the bill contains similar language applicable to an application for a lot split, replacing the highlighted language with “urban lot split.”
Paragraph (2) of subdivision (d) of Section 65589.5 provides:
“(2) The housing development project or emergency shelter as proposed would have a specific, adverse impact upon the public health or safety, and there is no feasible method to satisfactorily mitigate or avoid the specific adverse impact without rendering the development unaffordable to low- and moderate-income households or rendering the development of the emergency shelter financially infeasible. As used in this paragraph, a “specific, adverse impact” means a significant, quantifiable, direct, and unavoidable impact, based on objective, identified written public health or safety standards, policies, or conditions as they existed on the date the application was deemed complete. The following shall not constitute a specific, adverse impact upon the public health or safety:
"(A) Inconsistency with the zoning ordinance or general plan land use designation.
"(B) The eligibility to claim a welfare exemption under subdivision (g) of Section 214 of the Revenue and Taxation Code.”
It is perhaps not completely clear whether the reference in SB9 to 65589.5(d)(2) is limited to low and moderate-income housing. In my opinion, the cross-reference probably refers to the second and third sentences.
NOTE that the law appears to require written standards before an application is considered; an ad hoc decision in response to an application does not seem sufficient.
The ADU laws likewise allow the prohibition of ADUs in the name of safety, specifically including traffic flow.
According to page 9 of that handbook:
“The preparation, adoption, amendment, and implementation of local ADU ordinances must be carried out consistent with Government Code, Section 65852.150 and must not unduly constrain the creation of ADUs. Local governments adopting ADU ordinances should carefully weigh the adoption of zoning, development standards, and other provisions for impacts on the development of ADUs. In addition, ADU law is the statutory minimum requirement. Local governments may elect to go beyond this statutory minimum and further the creation of ADUs. Many local governments have embraced the importance of ADUs as an important part of their overall housing policies and have pursued innovative strategies. (Gov. Code, § 65852.2, subd. (g)).
“2. Zoning, Development and Other Standards A) Zoning and Development Standards • Are ADUs allowed jurisdiction wide? No. ADUs proposed pursuant to subdivision (e) must be considered in any residential or mixed-use zone. For other ADUs, local governments may, by ordinance, designate areas in zones where residential uses are permitted that will also permit ADUs. However, any limits on where ADUs are permitted may only be based on the adequacy of water and sewer service, and the impacts on traffic flow and public safety. Further, local governments may not preclude the creation of ADUs altogether, and any limitation should be accompanied by detailed findings of fact explaining why ADU limitations are required and consistent with these factors. Examples of public safety include severe fire hazard areas and inadequate water and sewer service and includes cease and desist orders. Impacts on traffic flow should consider factors like lesser car ownership rates for ADUs and the potential for ADUs to be proposed pursuant to Government Code section 65852.2, subdivision (e). Finally, local governments may develop alternative procedures, standards, or special conditions with mitigations for allowing ADUs in areas with potential health and safety concerns. (Gov. Code, § 65852.2, subd. (e))”
It is particularly important that the safety exception be invoked in high and very high fire severity hazard zones, where there are narrow roads, making evacuation – especially with increased density – a threat to safety. Oakland is addressing this subject. See the discussion at pp. 7-10 of this Oakland Staff Report regarding restricting ADUs:
https://oaklandside.org/wp-content/uploads/2021/09/ADU-Planning-Commission.pdf
Note: SB9 Applies in Very High Fire Severity Zones
Contrary to what some have said, SB9 applies in very high fire severity zones. Indeed, it allows development “by right” without any CEQA or other environmental review. I am aware that some have said that these bills exempt projects in very high fire severity zones. The people saying that are mistaken. Here’s why.
SB9 misleadingly suggests that very high fire severity zones are excluded. Section 1 of SB9 would add Section 65852.21(a)(2) to the Government Code, and would require that
“The parcel satisfies the requirements specified in subparagraphs (B) to (K), inclusive, of paragraph (6) of subdivision (a) of Section 65913.4.”
Section 2 of SB9 would add Section 66411.7(a)(3)(C) to the Government Code, and would likewise require that
“The parcel satisfies the requirements specified in subparagraphs (B) to (K), inclusive, of paragraph (6) of subdivision (a) of Section 65913.4.”
Included in the cross-referenced subparagraphs is the requirement that, for SB9 to apply, the parcel must not be:
"(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.
Note the second/final sentence:
“This subparagraph does not apply to sites … that have adopted fire hazard mitigation measures pursuant to existing building standards or state fire mitigation measures applicable to the development.”
Thus, SB 9’s purported exclusion for high fire severity zones “does not apply” to projects that follow “existing building standards.” But, of course, all new construction must comply with existing building standards, and the exception entirely swallows the exclusion. In particular, Chapter 7A of the state building code contains fire mitigation standards applicable to very high fire hazard severity zones.