As summer rapidly approaches, and we continue to experience a (from my perspective welcome) “mini-drought” of published CEQA cases, I’ll briefly report on some recent legislative developments of possible interest.
Governor Brown Proposes Bold “Of Right” Affordable Housing Legislation
Governor Brown’s proposal to add Government Code §§ 65400.1 and 65913.3 and amend § 65913 to provide a scheme for “by right” ministerial approvals of multi-family developments including affordable housing has generated the most “buzz” among land use practitioners. The proposed “Streamlining Affordable Housing” trailer bill contains legislative declarations that “there exists a severe shortage of affordable housing, especially for persons and families of low and moderate income” an “an immediate need to encourage the development of new housing” through legal changes expediting the development process and assuring sufficient high density residential zoning.
In a not-so-subtle poke at CEQA abuse, the proposed law would also declare that “the costs of new housing developments have been increased in part, by the existing permit processes and by existing land use regulations and that vitally needed housing developments have been halted or rendered infeasible despite [their] benefits … and despite the absence of adverse environmental impacts.”
Key points of Brown’s proposed law include:
- It applies to attached housing, i.e., two or more units, not including a second unit, and sites designated for housing by a general plan, zoning, or for which a certified environmental document mitigates impacts.
- Developments permitted by right must: state the intent to invoke the statute; be consistent with objective general plan and zoning provisions at the time of application; be on an infill site; be attached housing; incorporate long term enforceable recorded restrictions to ensure affordability (between 5 and 20 percent of new units set aside for low income residents); and not be located on a site with significant farmland, wetlands, high fire hazard, hazardous wastes, earthquake faults, or flood issues.
- If the city or county contends the project does not comply with objective general plan or zoning standards it must specify in writing which ones and adequately explain why within 30 days of project submittal or the project will be deemed to satisfy such standards.
- Design review shall not exceed 90 days from submittal and “shall not in any way inhibit, chill, or preclude the ministerial approval provided by this section [.]”
- “The review of a permit, license, certificate, or any other entitlement, including but not limited to: the enactment and amendment of zoning or design review ordinances or guidelines, the issuance of zoning variances, the issuance of conditional use permits, and the approval of tentative subdivision maps, by any public agency with land-use authority over any development [complying with the new law] … shall be ministerial.” (emph. added.) Translation: CEQA will not apply.
- The new law would be enforceable by a writ of traditional mandamus, would apply “notwithstanding anything to the contrary contained in this code or any other law,” and “shall be applicable to all cities and counties, including charter cities, because the Legislature finds that the lack of affordable housing is a matter of vital statewide importance.”
Whether the Governor’s ambitious new proposal is destined for passage or is a pipe dream remains to be seen, but nothing says “CEQA reform” quite like a ministerial permitting process.
AB 900 Is Proposed To Live On – With Concessions To The Labor Lobby, Of Course
SB 734 (Galgiani), seeks to extend the sunset date of the AB 900 litigation review process. The Jobs and Economic Improvement Through Environmental Leadership Act of 2011 instituted that process, and authorized the Governor, until January 1, 2016, to certify “environmental leadership” projects, whose certifications would expire (if not approved) by January 1, 2017, when the Act itself is repealed by its own terms.
SB 734 would extend the Act until January 1, 2019, and would add a requirement that contractors and subcontractors for certified projects pay prevailing wage rates to project construction workers, subject to enforcement by the Labor Commissioner; this requirement would not apply if all project contractors and subcontractors are subject to a project labor agreement requiring the payment of prevailing wages. Also, a new proposed requirement for use of the AB 900 process by multi-family developments may require unbundled parking sold separately from the residential units, which could impact the affordability of parking to residents. This will be another interesting bill to watch.
CEQA Renders Unto Caesar …
Finally, in SB 836, the lengthy Budget Act of 2016, as last amended in the Assembly on June 14, there is a sweet CEQA relief “carve out” extending essentially the same super-expedited litigation procedures previously applied to the Kings Arena (requiring resolution of any CEQA challenges within 270 days of record certification) “to the construction of a state capitol building annex or the restoration, rehabilitation, renovation, or reconstruction of the existing State Capitol Building Annex[.]”
Now that’s the way to do CEQA reform!
Questions? Please contact Arthur F. Coon of Miller Starr Regalia. Miller Starr Regalia has had a well-established reputation as a leading real estate law firm for more than fifty years. For nearly all that time, the firm also has written Miller & Starr, California Real Estate 4th, a 12-volume treatise on California real estate law. “The Book” is the most widely used and judicially recognized real estate treatise in California and is cited by practicing attorneys and courts throughout the state. The firm has expertise in all real property matters, including full-service litigation and dispute resolution services, transactions, acquisitions, dispositions, leasing, financing, common interest development, construction, management, eminent domain and inverse condemnation, title insurance, environmental law and land use. For more information, visit www.msrlegal.com.