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Pending state bill allows developers to make more big local land-use decisions

Under the radar, a Wicks-Bonta housing bill changes the standards for projects in a way that undermines any professional planning standards.

AB 1893, authored by Assemblymember Buffy Wicks and co-sponsored by California Attorney General Rob Bonta, has gotten a lot of attention in the press, because it has split the Yimby movement. As Politico recently reported, Yimby Law and Yimby Action oppose the legislation, arguing that the bill would make it harder for developers to use Builder’s Remedy; CA Yimby and the Housing Action Coalition support it. In fact, AB 1893 does something far more important than upsetting some Yimbys.

As analysts at the Allen Matkins law firm pointed out in a June 18 “Legal Alert,” the Wicks/Bonta bill mandates provide significant “New Developer Protections,” by changing the evidentiary standards for nullifying a local agency’s disapproval of a housing project—and it doesn’t just apply to Builder’s Remedy’s developments:

"As now proposed, AB 1893 would provide that disapproval of a qualifying housing development project (including but not limited to a Builder’s Remedy project) by a local agency also includes any instance where the local agency “undertakes a course of conduct, including sustained inaction or the imposition of burdensome processing requirements, from which a reasonable person would conclude that the local agency intends to effectively disapprove the housing development.”

"Recall that a local agency cannot disapprove a qualifying housing development project unless it makes specified findings based on a preponderance of the evidence in the record. (Gov. Code § 65589.5(d).) Therefore, this new provision would make it easier for project sponsors to prove that a local agency stalling for the purpose of suspending a disfavored housing development project has violated the HAA."

It’s hard not to read this provision as the state’s payback for 469 Stevenson Street, one of the most controversial housing projects in San Francisco in recent years. Initially approved by the Planning Commission, the approval of the 495-foot tower development was appealed to the Board of Supervisors in 2021 by TODCO leader John Elberling, who contended that the project’s environmental impact report didn’t adequately analyze its effect on neighborhood displacement and gentrification.

The BoS agreed and directed the Planning Department to further review the proposal. Eighteen months later, the Planning Commission approved the project again on a 4-2 vote, with commissioners Theresa Imperial and Kathrin Moore voting No.

Widely condemned by California state legislators, the 469 Stevenson episode has already inspired a new law that limits local discretion over infill housing projects. Last October, Newsom signed into law Phil Ting’s AB 1633. From the staffer Nicole Restmeyer’s analysis for the final hearing on the Assembly floor:

"This bill attempts to settle the law regarding what happens when a local government requires CEQA analysis beyond what the courts may consider sufficient to make a reasonable determination of the environmental implications of a project. It does so by adding to the definition of what it means to “disapprove the housing development project” in the HAA [Housing Accountability Act], the following two instances:

1) When a local agency fails to make a determination of whether a project is exempt from CEQA, or commits an abuse of discretion in that determination; and

2) When a local agency fails to either require further study or adopt a negative declaration or addendum for the project, certify an EIR, or approve another environmental document for the project, or commits an abuse of discretion in that instance"

By adding these two criteria to the HAA, plaintiffs could utilize the legal remedies in the HAA to sue local agencies that utilize CEQA delays as a means to disapprove, render financially infeasible, or downsize a project without having actually voted to do so.

AB 1833, however, only applies to dense infill projects that meet the criteria of Scott Wiener’s SB 35. AB 1893 has far greater applicability. The Wicks/Bonta bill defines “housing development project” as “a use consisting of any of the following:”

(A) Residential units only.

(B) Mixed-use developments consisting of residential and nonresidential uses that meet any of the following conditions:

(i) At least two-thirds of the new or converted square footage is designated for residential use.

(ii) At least 50 percent of the new or converted square footage is designated for residential use and the project includes at least 500 net new residential units.

(iii) At least 50 percent of the net new or converted square footage is designated for residential use and the project meets all of the following:

(I) The project includes at least 500 net new residential units.

(II) The project involves the demolition or conversion of at least 100,000 square feet of nonresidential use.

(III) The project demolishes at least 50 percent of the existing nonresidential uses on the site.

(C) Transitional housing or supportive housing.

(D) Farmworker housing, as defined in subdivision (h) of Section 50199.7 of the Health and Safety Code.

But what’s most alarming about AB 1893 is the change in evidentiary standards—the replacement of “a preponderance of evidence in the record” by the conclusion reached by “a reasonable person”—flagged by Allen Matkins.

We saw this same switch in the 2017 bill AB 1515, which also amended the Housing Accountability Act, and which was signed into law by Governor Jerry Brown.

Here’s what I wrote about it at the time:

“Passed in 1982, the HAA limits the ability of local agencies to reject or make infeasible housing developments without a thorough analysis of the economic, social, and environmental effects of such action. It applies to all housing projects. Most important, the HAA allows a court to compel a city to take action on proposed developments.

“Analyzing AB 1515 for the State Senate Rules Committee, Senate staffer Alison Hughes observed that when a jurisdiction is sued under the HAA, the local government bears the burden of proof that its decision has conformed to all of the requirements in the law, including, if applicable, any findings that the development was not consistent with the city’s general plan or zoning standards.….

“[I]n order to qualify for the Housing Accountability Act’s protections, a development must be consistent with a city’s general plan and zoning standards in effect at the time that the application was deemed complete. In land use cases, when the issue is such consistency, courts have tended to defer to local governments, unless the court finds that the local government acted arbitrarily, capriciously, or without evidentiary basis.

“In legalistic terms, a local government’s decision would be upheld unless no reasonable person could have made the same decision—a very high bar. AB 1515 effectively lowered the bar to the ground.

“AB 1515, Hughes explained, “requires courts to give less deference to a local government’s consistency determination. It changes the [evidentiary] standard of review by providing that a project is consistent if there is substantial evidence that would allow a reasonable person to find it consistent.”

“AB 1515 was sponsored the California Building Industry Association. The Legislature staff analyses list only one opponent: the California chapter of the American Planning Association. Given that professional planners are usually avid proponents of development, Cal APA’s opposition is striking.

“In a letter sent to the members of the Legislature on August 1, Cal APA laid out the harm that AB 1515 does to democratically accountable land use policymaking:

“Under current law, a city council or board of supervisors weighs the evidence and reaches a decision based on established principles of democratic decision-making—local governments are ultimately held accountable for their decisions by the local electorate.

“AB 1515 would replace the judgment of local elected officials with that of any “reasonable person,” including the project developer who has a fundamental economic interest in the project. When fundamental land use decisions, like general plan consistency, are made by developers rather than elected representatives, local government accountability is compromised and the recourse available to the electorate is taken away.

“AB 1515 will allow the applicant, rather than the local agency or a judge, to determine consistency of a development with the General Plan and zoning by allowing the applicant to provide contrary reasons why the project is consistent.

“As a result, the issue will be whether a “reasonable person” could conclude that the project is consistent—not whether the city or county had substantial evidence to back up its conclusion.

“In response to my e-mailed query, Cal APA Executive Director Sande George elaborated:

“Under this bill, a project would have to be found consistent with local plans if there’s any evidence or interpretation supporting a finding of consistency, regardless of circumstances and evidence to the contrary.

“The existing standard is that the local agency’s finding is assumed to be correct unless no reasonable person could reach that conclusion. This [standard] retains the “reasonable person” phrasing in the bill but does not allow developers to begin making what are clearly local determinations, or to take a local agency to court over every finding.

“Cal APA asked that AB 1515 be amended to read: “the local agency’s finding is assumed to be correct unless no reasonable person could reach that conclusion.” Request rejected.”

Now, AB 1893 significantly expands the applicability “reasonable person” standard, which, as Cal APA wrote in 2017, effectively allows developers to make “fundamental land use decisions.” As such, the bill undermines Wicks’ and Bonta’s claims that their measure makes such decisions more objective.

The bill’s next hearing is on July 3 at the Senate Local Government Committee.

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