This legislative year, Governor Gavin Newsom signed into law thirty-one pieces of legislation designed to combat California’s ongoing housing crisis by providing tools to expand housing production, streamline housing permitting, and increase allowable density across the state. Key housing-related bills, which take effect on January 1, 2022, unless otherwise noted, are discussed below.
- SB 7, known as the Housing and Jobs Expansion and Extension Act, took immediate effect as an “urgency statute” to address the state’s housing crisis through zoning and the California Environmental Quality Act (CEQA) reform. It reenacts AB 900 through 2025 and extends expedited CEQA review for small-scale infill housing projects. For a more in-depth discussion of SB 7, please refer to Downey Brand’s previous CEQA Chronicles SB 7 blog post.
- SB 8 extends the term of the Housing Crisis Act of 2019 (SB 330) to January 1, 2030, and allows applicants who submit qualifying preliminary applications for housing developments prior to January 1, 2030 to utilize the protections of the Act through January 1, 2034. SB 8 also clarifies aspects of the existing law. SB 330 included procedural and substantive protections for qualifying housing development projects such as accelerating the approval process, limiting fee increases on housing applications, and implementing accountability provisions. Through SB 8, the Legislature clarifies the definition of a “housing development project” for purposes of the Housing Crisis Act to include projects that involve no discretionary approval, projects that involve both discretionary and ministerial approvals, and projects that include construction of a single dwelling unit. SB 8 adds demolition, relocation, and return rights, and also clarifies that developers cannot demolish multiple units and replace them with a single family home.
- SB 9 provides for the ministerial approval of certain housing development projects that contain up to two dwelling units (duplexes) on single-family zoned parcels, and also provides for the ministerial approval of qualifying lot splits that subdivide single-family parcels into two lots, if various criteria are met. Taken together, these provisions allow for the development of up to four housing units without further CEQA review, where only one would have been permitted. However, a local agency has the ability to deny such a housing project if it finds that the project would have severe adverse impacts on health and safety or the physical environment. Further, applicants for lot splits must confirm that they intend to occupy one of the units as their principal residence for at least three years, unless they are a community land trust or qualified nonprofit corporation. Additionally, a local agency may require easements for public services and facilities, or access to the public right-of-way, as conditions of approval. Finally, SB 9 would allow four years of extensions—extended from three years—for subdivision maps conditioned on significant public improvement obligations. This bill continues to address the state’s housing crisis by incrementally expanding the supply of housing through small scale housing projects, and builds upon prior legislation that worked to expedite the permitting and construction of Accessory Dwelling Units (ADU) and Junior ADUs.
- SB 10 enables local agencies to adopt ordinances that allow for up to 10 units per qualifying parcel in transit-rich areas or urban infill sites without CEQA review. However, the actual projects proposed on these parcels are not afforded the same CEQA exemption through SB 10 and may require CEQA review if not otherwise exempt (e.g., under SB 35). SB 10 further allows a local agency, by a two-thirds vote, to override voter-approved zoning for these qualifying parcels. This provision of SB 10 has already been challenged by AIDS Healthcare Foundation in a lawsuit filed on September 30, 2021. SB 10 does not apply to open space land, or parks or recreational parcels approved by voters, nor does it apply to parcels in very high fire severity zones. SB 10 makes increasing density more attainable by creating a path for pro-housing cities to approve upzoning without being slowed down by CEQA litigation and delay.
- SB 290 amends California’s Density Bonus Law to clarify specific provisions of the law and offer incentives to certain student housing projects. First, SB 290 explicitly states that the Density Bonus Law applies to both rental and for-sale housing development projects. Second, SB 290 extends the law’s allowance of limited parking to low-income developments. The existing law prohibited a local agency from requiring more than 0.5 spaces per unit for any development located within half a mile of a major transit stop that provided at least 20% low income units or 11% very low income units. SB 290 extends this parking ratio limit to developments with at least 40% moderate income units. Third, student housing projects that include at least 20% of the total units for certain “lower-income students,” as defined in SB 290, now qualify for one density bonus incentive or development standard concession. Fourth, SB 290 revises the definition of “specific, adverse impact” to conform with the Housing Accountability Act’s definition with regard to a local agency’s discretion to deny a requested incentive or waiver of development standards if it would create a “specified adverse impact upon health, safety, or the physical environment.” And fifth, SB 290 codifies the holding of Latinos Unidos De Napa v. City of Napa (2013) 221 Cal.App.4th 192, to confirm that in setting aside a percentage of total units as affordable under the Density Bonus Law, the term “total units” excludes any density bonus units, and includes any unit needed to satisfy a local agency’s inclusionary zoning requirement. With these changes, the Legislature continues to recognize density bonus provisions as important tools to alleviate the state’s affordable housing crisis.
- SB 478, the Housing Opportunity Act, prohibits restrictions on floor area ratio (FAR) that effectively ban the construction of apartment buildings. This bill prevents local governments from establishing a FAR of less than 1.0 for projects that are three to seven units or less than 1.25 for projects that are eight to ten units. To be deemed eligible, projects must be located in a multi-family residential zone or a mixed-use zone. SB 478 also prevents local governments from basing the denial of a qualifying project solely on the failure to satisfy minimum lot size requirements, and from imposing a lot coverage requirement that would keep a housing development from achieving the allowed FAR. The bill also voids and makes unenforceable any private development’s covenant, condition, or restriction that may unreasonably preclude a project from achieving the permitted FAR. In discussing SB 478, Senator Scott Weiner stated, “[w]e need to reform zoning, but we also need to end loopholes that make it impossible for our communities to actually build the multifamily housing for which we have already zoned.”
- SB 791 creates the California Surplus Land Unit, a technical assistance unit within the Department of Housing and Community Development (HCD), to “facilitate agreements between housing developers and local agencies that seek to dispose of surplus land; provide advice, technical assistance, and consultative and technical service to local agencies with surplus land and developers that seek to develop housing on the surplus land; and collaborate with specified state agencies to assist housing developers and local agencies with obtaining grants, loans, tax credits, credit enhancements, and other types of financing that facilitate the construction of housing on surplus land.” The bill requires HCD to submit an annual report that states the number and location of housing units assisted by the California Surplus Land Unit and the funds used to finance those units. SB 791 also calls for data collection to inform the Legislature’s understanding of how the California Surplus Land Unit’s work can better promote affordable housing production.
- AB 571 prohibits local governments from imposing affordable housing impact fees on the affordable units in a housing development’s density bonus project.
- AB 1398 requires local agencies that fail to adopt legally compliant housing elements to properly rezone within one year. The bill ensures cities and counties are adequately re-zoning to meet their housing needs. Jurisdictions that fail to adopt HCD-compliant housing elements within 120 days of the statutory deadline will have one year to complete the required rezoning, instead of the current three years and 120 days. The bill provides teeth to ensure that local governments act to meet their housing mandates.