Constitutional Amendment Aims To Restore Local Control

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Local Control - Sustainable TamAlmonte

Constitutional Amendment Aims To Restore Local Control

Posted by: Sharon Rushton - June 10, 2021 - 4:14 PM PDT

Since 1879, the California State Constitution has contained strong protections for local government control. [1] This authority is founded on cities’ and counties’ constitutional police power and is set forth in Article XI, Section 7, of the constitution, which states; “A county or city may make and enforce within its limits all local, police, sanitary, and other ordinances and regulations not in conflict with general laws.” [2]

Cities’ and Counties’ general police power to protect the health, safety and welfare confers very broad rights and allows cities and counties to establish land use and zoning laws which govern development and use of the community, so long as these local laws are not in conflict with state general laws.

In Village of Belle Terre v. Boraas (1974), the U.S. Supreme Court addressed the scope of such power and stated; “The police power is not confined to elimination of filth, stench and unhealthy places. It is ample to lay out zones where family values, youth values, and the blessings of quiet seclusion and clean air make the area a sanctuary for people.” [3]

However, in the last few years, the California state legislature has grown increasingly willing to preempt local governments’ regulations and decision making with regard to land use, zoning, and planning, particularly when related to housing development. Newly proposed housing bills could essentially eliminate local control of housing development entirely.

The pendulum has swung too far in the direction of state control over local control. A recalibration of the balance of power between state and local governments is essential. That’s where Assembly Constitutional Amendment 7 comes in.

In opposition to recent housing legislation that takes away local control, two California state legislators, Assembly Member Al Muratsuchi (D-Torrance) and Senator Steve Glazer (D-Contra Costa), have authored Assembly Constitutional Amendment 7 (ACA-7) "Local government: police power: municipal affairs: land use and zoning"[4], which would reaffirm the powers of locally elected governments to regulate land use and zoning, as granted in the California State Constitution, and limit the state’s ability to override those powers.

According to law firm - Reuben Junius, & Rose LLP; "In order to qualify for the ballot, two-thirds of each legislative chamber will need to approve the constitutional amendment. That amounts to a minimum of 54 votes in the Assembly and 27 in the Senate, assuming no vacancies. The governor’s approval is not required.”[5]

ABOUT ACA-7

“The constitutional amendment (ACA-7) itself is fairly simple. It states that city or county regulations regarding “zoning or the use of land” prevail over conflicting state laws. Limited exceptions include conflicts with state statutes involving (1) the California Coastal Act, (2) the siting of certain power generating facilities, and (3) water or transportation infrastructure projects. Transportation infrastructure projects do not include transit-oriented development projects. This amendment would apply to both charter cities and general law cities. However, in charter cities, courts would determine whether a local ordinance that conflicts with one of the subject areas listed above addresses a matter of statewide concern or a municipal affair."[6]

REASONS TO SUPPORT ACA-7:

The impacts of land use decisions differ depending on the municipality and the infrastructure required to maintain appropriate levels of public services (including police and fire services, parklands and public open spaces, transportation, schools, and sewers) varies greatly across the state from locality to locality. The Legislature cannot properly assess the impacts upon each community of sweeping land use rules and zoning regulations that apply across the state and, as a result, do great harm to many local communities with differing circumstances, concerns, and financial capabilities.

ACA-7 will make it possible for local agencies to control their own destiny despite the endless legislative attempts to undermine that control we are presently witnessing. The amendment will ensure local control over land use decisions in order to balance development with the economic, environmental, and social needs of a community.

Furthermore, it is in the best interests of the state for these complex decisions to be made at the local level to ensure that the specific, unique characteristics, constraints and needs of those communities are properly analyzed and addressed.

Many California housing laws have gone too far in putting the financial interests of the real estate industry over and above the needs and wellbeing of residents and local communities. If approved, ACA-7 would allow cities' and counties' local laws to supersede conflicting state general laws aimed at mandating streamlined, high-density housing, in which developers, rather than elected local representatives, decide where and how a jurisdiction will grow.

For example, the amendment would allow local laws to prevail over the following state laws:

EXISTING STATE LAWS

State Density Bonus Law (Originally adopted in 1979 and updated in 2019): Under the State Density Bonus Law, developers are entitled to up to an 80% density bonus if certain on-site affordability requirements are met. The law also allows waivers and concessions from development standards that would physically preclude the density permitted or result in identifiable and actual cost reductions. Not very long ago, the Density Bonus Law was reasonable with a maximum density bonus of 35%. Now, the state law is grossly excessive. All jurisdictions in Marin offer their own local density bonuses, which are much more equitable.

Senate Bill 35 (Wiener) (2017) “Planning and zoning: affordable housing: streamlined approval process”: This legislation requires a streamlined, ministerial approval process for housing projects that meet minimal affordability requirements in cities and counties that are not meeting their Regional Housing Needs Allocation (RHNA) goals.

SB-35 has resulted in ministerial approvals (without public hearings) of unwanted monstrosities, such as the 227-unit housing complex on Fourth Street in downtown Novato. The Novato complex will be 75 feet high, making it the tallest building in the city, and includes only 51 parking spaces, far below the 314 spaces that would normally be required under city code. Another unwelcome huge development approved through SB-35 is a five story, 74-apartment complex with only 24 onsite parking spaces in Marin City where the Village Baptist Church once stood.

Concerned residents contend that the mass and height of the developments are inconsistent with local standards. They also assert that the size and designs will result in tenants living in cramped areas with no green space and lacking other amenities. In Marin City, the lack of parking spaces will likely result in excessive on-street parking and traffic congestion, which could block a vital emergency access and evacuation route.

Permit Streamlining Act (Originally enacted in 1977 and updated later): This Act allows certain development projects to be deemed approved if the local agency does not approve the project within specified time limits.

Senate Bill 375 (Steinberg) “Sustainable Communities Strategy” (2008): SB-375’s core provision is a requirement for California’s 18 Metropolitan Planning Organizations (MPOs) to develop a “Sustainable Communities Strategy” (SCS), such as Plan Bay Area. Although the purported goal of the law is to reduce greenhouse gas emissions, its main emphasis is on building high-density housing near transit hubs, rather than more effective means to lowering greenhouse gases, such as mandating vehicle emission standards or improving public transportation.

Plan Bay Area (the Bay Area’s SCS) has been largely criticized as a “one size fits all” mandate that takes away local control. Detractors assert that Plan Bay Area’s projections for population, jobs and housing growth are unrealistic. The plan isn’t needed to meet SB 375’s greenhouse gas reduction requirement. Plan Bay Area makes housing less affordable than ever and will result in severe environmental harm. Moreover, the cost effectiveness of the plan is abysmal, with costs of implementing Plan Bay Area far surpassing any benefits achieved.

Senate Bill 330 (Skinner) “Housing Crisis Act of 2019” (2019): Among other things, SB-330 (1) provides a mechanism to vest the ordinances, policies, and standards in effect at the date a complete Preliminary Housing Development Application is submitted, (2) limits the ability of municipalities to downzone certain properties, impose moratoria, or apply new subjective design standards to housing developments, (3) further streamlines approvals, and (4) limits the number of hearings to just five hearings that can be conducted prior to approval of a housing project.

Housing Accountability Act (Originally adopted in 1982 and updated in 2017): This Act limits a local government’s ability to deny, make infeasible, or reduce the density of housing development projects, emergency shelters, or farmworker housing that are consistent with objective local development standards.

Accessory Dwelling Unit (ADU) Law (2019): In recent years, there has been a significant amount of legislation regarding Accessory Dwelling Units (ADUs). There are various advantages to adding an Accessory Dwelling Unit or second unit to a home. However, by requiring "ministerial" review and stripping away local control of land use and zoning, local development standards (parking requirements, height limits, setbacks, Floor Area Ratios), community engagement, and environmental review related to second units, the State's new ADU laws went too far.

Most worrisome, is the fact that, if a jurisdiction doesn't take adequate precautions, then the new ADU laws endanger communities in high and very high fire zones with unsafe access and evacuation routes. This is because the laws dramatically increase potential housing density and population (potentially more than doubling the population) in these hazardous communities, while reducing or eliminating off-street parking requirements for ADUs, Junior ADUs, and the primary single-family homes. This will lead to streets being overcrowded with parked vehicles. Dire consequences could result during an emergency when residents are unable to evacuate and fire trucks/paramedics are unable to reach their destinations.

Senate Bill 828 (Wiener) “Land use: housing element” (2018): Although unconfirmed, the broad language of the amendment might help offset the ill effects of SB-828, which revised Housing Element Law and inadvertently contributed to a doubling of the Regional Housing Needs Assessment (RHNA) for the 2023 through 2031 cycle, according to the Embarcadero Institute’s Report entitled; “Double Counting in the Latest Housing Needs Assessment” [7].

The Institute asserts that SB-828 made the following incorrect assumptions:

SB-828 wrongly assumed existing housing need was not evaluated as part of California’s previous RHNA.
SB-828 wrongly assumed a 5% vacancy in owner-occupied housing is healthy.
SB-828 wrongly assumed overcrowding and cost-burdening had not been considered in Department of Finance projects of housing need.

SB-828 made other damaging changes to Housing Element Law too. SB-828, accounting errors introduced by the California Department of Housing and Community Development’s (HCD) methodology for the Regional Housing Needs Assessment (RHNA), along with the Association of Bay Area Government's (ABAG's) flawed RHNA methodology, led to Marin’s RHNA allocation for the next cycle (2023 - 2031) being unprecedented, exorbitant, and unrealistic.

Marin County has been assigned 14,405 housing units, which is more than the current number of homes in Mill Valley and Sausalito combined and more than all of the housing units allocated to Marin for the last 23 years (3 separate RHNA cycles -- 1999 through 2022). Due to new laws, this means that Marin County jurisdictions will need to not only identify sites (and adjust zoning on those sites) for over 14,000 homes but, in addition, ensure that new housing is actually constructed on the sites, all within the 8-year RHNA cycle. An absolutely impossible task! If quotas are not met, then severe penalties (both fees and additional loss of local government control) will apply.

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In addition, the constitutional amendment could counter the onslaught of this year’s proposed detrimental housing legislation.

There are more than 100 housing bills that have been introduced so far during the 2021 legislative season. For a quick overview of the magnitude and breadth of the proposals, please view Alfred Twu’s below diagram entitled; “2021 California Housing Legislation Highlights” [8]. Not all the pending legislation is undesirable but unfortunately, much of it is.

**Please click on the below diagram to enlarge it.

According to the Regional Housing Need Allocation (RHNA) reports for the 2015 to 2023 RHNA cycle, counties and cities have not had trouble reaching the state’s market-rate housing goals. They have been having difficulty attaining affordable housing objectives. It is reasonable to assume that the market will take care of market-rate housing. If this is the case, then the state should focus on using tax dollars to help fund affordable housing.

However, what is most needed, legislation that funds affordable housing programs, is severely lacking. During the Great Recession and resulting budget deficit, the State terminated most of its funding for affordable housing and diverted property tax resources to schools and local services. The State has never resumed the same level of funding for affordable housing since.

Rather than address the affordability of housing head-on by restoring funding, state legislators continue the trend to take away local government’s control and require streamlined approvals, incentives (e.g. greater density, increased height, reduced parking, decreased setbacks), and California Environmental Quality Act (CEQA) exemptions to market-rate housing with less or zero requirement to provide affordable housing. Many bills require “objective design standards” and disallow discretionary review, which limits local government’s ability to best address unique situations and ensure that projects deliver high-quality design, appropriate site planning and amenities, and are compatible with the surroundings. Some of the bills rely on fees-in-lieu, which are fees developers can pay instead of building the required affordable housing. Such fees are typically set far below the cost of on-site construction and result in little affordable housing.

Here are examples of this year’s flawed legislation that reduce local control of land use (SB = Senate Bill; AB = Assembly Bill):

PROPOSED HOUSING LEGISLATION (2021)

SB-6 (Caballero) “Local planning: housing: commercial zones”: Requires and Streamlines housing in commercial zones and expands the reach of SB-35.

SB-7 (Atkins) “Environmental quality: Jobs & Economic Improvement Through Environmental Leadership Act of 2021”: Extends and expands the California Environmental Quality Act (CEQA) streamlining provisions of AB-900.

SB-8 (Skinner) “Housing Crisis Act of 2019”: Extends and expands the “Housing Crisis Act”. Reduces local government review and approval over developments.

SB-9 (Atkins) “Housing development: approvals”: Requires local governments to ministerially allow lot splits and duplexes in single-family zones and thereby up-zones single-family parcels to 4 units and potentially up to 6 or 8 units, depending on the applicability of the State Accessory Dwelling Unit law.

SB-290 (Skinner) “Density Bonus Law: qualifications for incentives or concessions: student housing: moderate-income families: local government constraints”: Increases Density Bonus while lowering affordable housing threshold.

SB-478 (Wiener) “Planning & Zoning Law: housing development projects”: housing development projects”: Prohibits local governments from setting Floor Area Ratio less than 1.5 (1 and ½ times the size of the lot). Limits the Floor Area Ratio and minimum lot sizes that cities can impose on projects with ten or fewer units.

AB-115 (Bloom) “Planning & zoning: commercial zoning: housing development”: Requires cities and counties to allow housing in commercial zones and dramatically increase height, density, and Floor Area Ratio (FAR) maximums of such housing, ministerially without any CEQA review, provided the development reserves 20% of the units for affordable housing.

AB-215 (Chiu) "Housing element: regional housing need: relative progress determination": An intent bill to strengthen the CA Department of Housing and Community Development's (HCD's) housing law enforcement authority. The bill requires cities/counties to undertake a mid-cycle housing element consultation to check the jurisdiction's progress toward fulfilling their housing quotas (including market-rate housing allocations). Jurisdictions that fall behind must attain a "pro-housing" designation by adopting housing policies that facilitate planning, approval or construction of housing, such as offering local financial incentives, lowering parking requirements, and streamlining the permit process with by-right approvals.

AB-345 (Quirk-Silva) "Accessory dwelling units: separate conveyance": Requires, rather than authorizes, a local government to allow an ADU to be sold separately from the primary residence, if the ADU meets specified conditions.

AB-721 "Covenants and restrictions: affordable housing": Makes restrictions on the number or size of residences unenforceable against affordable housing developers, as defined.

AB-916 (Salas) "Zoning: accessory dwelling units (ADUs): bedroom addition": Prohibits hearings for room additions to single-family homes and expands allowable ADU height to 20 feet.

AB-1277 (Rubio) "California Environmental Quality Act (CEQA): student housing development projects: expedited judicial review": Streamlines the California Environmental Quality Act review for student housing projects.

AB-1401 (Friedman) “Residential & commercial development: parking requirements”: Eliminates parking requirements within ½ mile of public transit.

These thirteen misguided bills do one or more of the following:

Take Away Local Control - Take away local governments’ control of land use and give it to market-rate housing developers (SB-6, SB-7, SB-8, SB-9, SB-290, SB-478, AB-115, AB-215, AB-345, AB-721, AB-916, AB-1277, AB-1401);
Streamline Approvals - Streamline the permit review process for housing, thereby posing a significant threat to democracy, public engagement, and high-quality development (SB-6, SB-7, SB-8, SB-9, AB-115, AB-1277);
Exempt CEQA - Exempt housing projects from thorough review in accordance with the California Environmental Quality Act (CEQA), thereby reducing environmental protections (SB-6, SB-7, SB-9, AB-115, AB-916, AB-1277);
Eliminate Single-Family Zoning – Require local jurisdictions to eliminate single-family zoning and up-zone single-family parcels, whereas single-family neighborhoods should be protected (SB-9, AB-345, AB-916);
Require Developer Incentives – Require local governments to increase housing density, reduce or eliminate parking requirements, increase height limitations, and/or lessen setbacks, which would increase the risk of adverse impacts on the environment, public health and safety, traffic congestion, infrastructure, utilities (water supply), public services, views, sunlight, privacy, neighborhood character, and quality of life.(SB-9, SB-290, SB-478, AB-115, AB-345, AB-721, AB-916, AB-1401);
Create Unfunded Mandates - Create unfunded mandates that burden local governments and communities. There is no funding for dealing with the above listed impacts and most of the bills provide an official sidestep of addressing this issue.The following phrase is used over and over again; “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." (SB-6, SB-7, SB-8, SB-9, SB-290, SB-478, AB-115, AB-215, AB-345, AB-721, AB-916, AB-1277, AB-1401).

Moreover, the above proposals do little if anything to increase the supply of affordable housing.

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With such an abundance of unfavorable (and often harmful) pending housing legislation, which override the better judgement of local cities and counties, it is extremely difficult to successfully oppose every single flawed bill. Therefore, a constitutional amendment that tames the many detrimental existing laws and new proposals in one fell swoop, would be most advantageous.

**Limited exceptions to the amendment include conflicts with state statutes involving (1) the California Coastal Act, (2) the siting of certain power generating facilities, and (3) water or transportation infrastructure projects. So far, this author’s research has not determined that ACA-7 would weaken the California Environmental Quality Act (CEQA). However, if there is any possibility of this, then it is advised that CEQA be added to the list of exceptions.

Please contact your State and local representatives and ask them to support Assembly Constitutional Amendment - 7. Attached is Sustainable TamAlmonte’s letter re: “Support ACA-7”, which you can use as a template to write your own letter.

Marin's State Representatives:

Senator Mike McGuire: senator.mcguire@senate.ca.gov (916) 651-4002 or (415) 479-6612

Summer Cassel (Senator McGuire's Aide): summer.cassel@sen.ca.gov

Daniell Bradley (Senator McGuire's Legislative Aide): daniel.bradley@sen.ca.gov

Assembly Member Marc Levine: assemblymember.levine@assembly.ca.gov (916) 319-2010 or (415) 479-4920

Jacqueline Anapolsky (Assemblymember Levine's Legislative Aide): jacqueline.anapolsky@asm.ca.gov

Sierra Sheppard ((Assemblymember Levine's Legislative Aide): sierra.sheppard@asm.ca.gov

Marin's Local Representatives: