BILL ANALYSIS
SB 303
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Date of Hearing: July 3, 2007
ASSEMBLY COMMITTEE ON LOCAL GOVERNMENT
Anna Marie Caballero, Chair
SB 303 (Ducheny) - As Amended: June 25, 2007
SENATE VOTE : 28-2
SUBJECT : Local government: land use planning.
SUMMARY : Requires the housing element of the general plan to
identify land to accommodate a 10-year supply of housing,
requires local governments to zone for five years of housing
within one year of adopting the housing element, changes
requirements related to the conservation and open-space elements
of the general plan, and specifies that all other general plan
elements be updated every 10 years. Specifically, this bill :
1)Requires the general plan and each of its elements, except the
housing element, to encompass a planning and projection period
of at least 20 years.
2)Requires each general plan element to be updated as necessary
not less than every 10 years, except for the housing,
conservation, and open-space elements.
3)Requires the conservation and open-space elements of the
general plan to be updated every five years.
4)Specifies that nothing in the open-space element shall
preclude or constrain the locality from accommodating its
share of the regional housing need, including the requirements
to identify and make available adequate sites for housing.
5)Requires every open-space element to include the following:
a) An inventory of open-space land, including any land
subject to a Williamson Act contract scheduled to expire in
the next 10-year period;
b) A statement of goals, policies, financial resources, and
scheduled programs for the acquisition, preservation, and
maintenance of open-space lands;
c) A program that sets forth actions the local government
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is undertaking to implement the policies and objectives of
the open-space element;
d) An analysis of the adequacy of open-space land for all
economic segments of the community, including those
traditionally underserved by open-space land and a specific
program for addressing inadequacies;
e) An analysis of the implementation and effectiveness of
the policies and standards for parks and recreation
facilities; and
f) An analysis of the implementation and effectiveness of
the schedule for developing park and recreation facilities.
6)Specifies that for purposes of the analysis above, "open-space
land" means open space used for the managed production of
resources and open space for outdoor recreation.
7)Requires cities and counties to make their zoning ordinances
consistent with the general plan by the next required update
of the housing element and maintain consistency thereafter.
8)Specifies that in the case of residential land uses,
consistency means that the zoning allows development at the
density designated in the general plan without any additional
legislative or quasi-legislative land use approvals (e.g.
rezoning).
9)Requires charter cities to comply with the zoning consistency
requirements.
10)Requires each city and county to designate in the land use
element of the general plan sufficient land to accommodate the
jurisdiction's 10-year housing need.
11)Requires each city and county to zone sites to accommodate
the jurisdiction's five-year housing need within one year of
adopting the housing element.
12)Requires the housing element to identify actions that will be
taken to make sites available during the first year of the
planning period of the housing element to accommodate the
portion of the jurisdiction's share of the regional housing
need for each income level that can not be accommodated on
existing residentially zoned land.
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13)Requires the jurisdiction to specify the date by which each
action will be implemented.
14)States that if a city or county fails to take an action by
the specified date, a court can order the city or county to
perform the action within 60 days.
15)Requires a city or county, within one year after the date of
revising the housing element, to submit written documentation
to the Department of Housing and Community Development (HCD)
regarding its actions to comply with the one-year zoning
requirement.
16)Requires HCD to review the submittal and report its written
findings to the jurisdiction within 30 days.
17)Requires the city or county to prepare an environmental
impact report (EIR) in connection with the zoning of land to
meet the five-year housing need.
18)Requires the EIR to address cumulative impacts, growth
inducing impacts, off-site impacts, and alternative sites.
19)Specifies that local governments have two years to prepare
their housing elements after the council of governments (COG)
adopts the final regional housing needs allocation plan.
20)Requires local governments to submit a draft housing element
to HCD 60 days prior to the deadline for adopting the housing
element, and requires HCD to review the draft and report its
written findings within 60 days.
21)Specifies that if HCD finds that the draft element does not
substantially comply with the law, the legislative body shall
take one of the following actions:
a) Change the draft element to substantially comply with
the requirements of the law in accordance with the findings
of HCD; or
b) Adopt the draft element without changes, provided that
the legislative body shall include in its resolution of
adoption written findings supported by substantial evidence
that explain the reasons the legislative body believes that
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the draft element substantially complies with the law
despite the findings of HCD.
22)Requires each local government to adopt a final revised
housing element no later than one year after the deadline for
submitting the draft element to HCD.
23)Requires a city or county to include in its housing element
quantified objectives (i.e. production estimates) for the
development, preservation, and rehabilitation of housing for
extremely low-, very low-, low-, and moderate-income
households and for special housing needs, as opposed to
housing in general as current law requires.
24)Requires the quantified objectives to "establish," rather
than "estimate," the maximum number of housing units to be
constructed and rehabilitated for the listed income categories
over a five-year period.
25)Provides that any permit or subdivision approval sought in
connection with a project that is consistent with the
designation and zoning on a site designated in the housing
element is subject to the Permit Streamlining Act.
26)Prohibits a city or county from denying or reducing the
density on a project that is consistent with the designation
and zoning on a site designated in the housing element unless
it makes written findings that the project has a specific,
adverse impact upon the public health or safety and there is
no feasible method to satisfactorily mitigate or avoid the
adverse impact.
27)Prohibits a city or county, except with the written findings
described above, from changing the zoning on a property
without the consent of the project applicant after a complete
application has been submitted that is consistent with the
designation and zoning on a site designated in the housing
element.
28)Provides that if a court finds that a city or county has
failed to identify adequate sites or has failed to make the
findings related to the ability of each site to realistically
accommodate the allowed density, the court shall retain
jurisdiction and issue an order requiring compliance within
120 days or a lesser period if the court determines that a
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lesser period is appropriate.
29)Requires jurisdictions, in identifying sites for housing, to
maximize opportunities for infill, redevelopment, and
brownfield sites for housing for all income levels.
30)Requires sites identified to accommodate the need for
extremely low-, very low-, and low-income housing to allow
development at the Mullin densities.
31)Requires that any sites rezoned after the housing element due
date to accommodate the need for extremely low-, very low- or
low-income housing permit the development of multifamily
housing by right.
32)States that all deadlines within housing element law are
mandatory, not directory.
33)Provides that nothing in the housing element requirements can
be interpreted to affect current law with respect to the
planning, use, or development of areas outside designated and
zoned housing sites, or to establish any presumption regarding
the appropriate designation or use of those sites.
34)Authorizes a property owner to bring an action requiring that
the zoning on the property be made consistent with the general
plan within 90 days after a decision by the legislative body
to deny a zoning application filed by the property owner to
bring the zoning ordinance into consistency with the general
plan.
35)Specifies that if HCD finds that the jurisdiction failed to
substantially comply with the one-year zoning requirement, it
must notify the jurisdiction that its housing element does not
comply with the requirements of housing element law.
36)States legislative intent that HCD's findings and guidelines
be given substantial deference and weight by courts regarding
noncompliance with housing element requirements.
37)Specifies that in the preparation of its housing element,
each city and county shall utilize, rather than consider,
HCD's housing element guidelines, as well as any interpretive
memorandum issued by HCD.
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38)Specifies that a court's review of a housing element for
compliance with the law shall afford HCD's findings,
guidelines, and interpretive memoranda due deference.
39)Deletes a statement in existing law establishing that HCD's
housing element guidelines are advisory in nature.
40)Defines "planning period" as the five-year period that begins
on that date that is two years after the date that the COG
adopts the final regional housing needs allocation plan.
41)Defines "regional housing need" and "existing and projected
housing need" as the minimum amount of housing needed over the
next 10-year period.
42)Appropriates $45,000,000 of the $90,000,000 in Proposition 84
for planning to establish a revolving loan fund to assist
cities and counties in funding the enhanced planning
environmental obligations established by the bill.
43)Specifies that the Office of Planning and Research shall
administer the revolving loan fund.
44)Specifies that cites and counties shall repay loans through
local building permit fees.
EXISTING LAW :
1)Requires cities and counties to adopt a general plan that
contains seven mandatory elements: land use, circulation,
housing, conservation, open space, noise, and safety.
2)Requires the housing element of the general plan to identify
and analyze current and projected housing needs, make
demographic projections, assess housing inventories, identify
housing constraints, and establish community goals related to
housing for all income levels.
3)Requires the housing element to include an inventory of land
suitable for residential development.
4)Requires the housing element to include a program that sets
forth a five-year schedule of actions the local government is
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undertaking or intends to undertake to achieve the goals and
objectives of the housing element, including actions that will
be taken to make sites available during the planning period of
the general plan with appropriate zoning and development
standards and with services and facilities to accommodate the
share of the regional housing need for each income level that
could not be accommodated on sites identified in the inventory
of existing residentially zoned land.
5)Specifies that where the inventory of existing residentially
zoned sites is not adequate to accommodate the housing need at
all income levels, the program must identify sites that can be
developed for housing within the planning period.
6)Specifies that where the inventory of existing residentially
zoned sites is not adequate to accommodate the need for
lower-income housing and farmworker housing, sites must be
made available to meet the unaccommodated need that are zoned
to allow multifamily housing and farmworker housing by right.
7)Requires the housing element to be updated every five years,
but does not require a particular timeframe for any other
portion of the general plan.
8)Requires, prior to each housing element revision, that each
COG, in conjunction with HCD, prepare a regional housing needs
assessment and allocate to each jurisdiction in the region its
fair share of the housing need for all income categories.
Where a COG does not exist, HCD determines the local share of
the region's housing need.
9)Requires a city or county, to the extent that it does not have
adequate sites for affordable housing within its existing
inventory of residentially zoned land, to adopt a program to
rezone land to accommodate the need on sites that allow for
the development of housing as a use by right, meaning that the
local government may not require a conditional use permit,
planned unit development permit, or other discretionary review
or approval.
10)Requires the housing element to provide for the following
income categories:
a) Extremely low-income (30% or lower of area median
income);
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b) Very low-income (50% or lower of area median income);
c) Lower-income (80% or lower of area median income);
d) Moderate-income (between 80% and 120% of area median
income); and
e) Above moderate-income (exceeding 120% area median
income).
11)Requires cities and counties to adopt zoning ordinances
regulating, for example, the use of buildings, structures, and
land.
12)Under the California Environmental Quality Act (CEQA),
requires lead agencies with the principal responsibility for
carrying out or approving a proposed discretionary project to
prepare a negative declaration, mitigated declaration, or
environmental impact report (EIR) for this action, unless the
project is exempt from CEQA.
13)Under the Permit Streamlining Act (PSA), requires a lead
agency for a development project to approve or disapprove a
project within specified time periods (for example, 180 days
from the date the lead agency certifies an EIR (except 90 days
for a very low- or low-income housing project under certain
conditions), 60 days from the date of adopting a negative
declaration or determining that a project is exempt from
CEQA).
FISCAL EFFECT : According to the Senate Appropriations
Committee, the increased demands on HCD relative to the new
housing element requirements will result in costs of up to
$400,000 and require three positions, including updates to
regulations and any necessary workshops and technical assistance
provided to local entities. Additionally, SB 303 would have
unknown, potentially reimbursable costs to local governments.
COMMENTS :
1)The Planning and Zoning Law requires cities and counties to
prepare and adopt a general plan to guide the future growth of
the community. Every general plan must contain seven
elements: land use, circulation, housing, conservation,
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open-space, noise, and safety. While the law requires cities
and counties to "prepare, periodically review, and revise, as
necessary" their general plans, there is no established
timeframe for doing so, except for the housing element. The
lack of a mandatory timeframe recognizes the fact that cities
and counties have vastly differing local circumstances and
that local planning should be done on a schedule that meets
local needs.
2)Cities and counties must revise their housing elements every
five years, following a staggered statutory schedule. Due to
various statutory extensions, housing element planning periods
have historically covered anywhere from five to eight years.
Before each revision, each community is assigned its fair
share of housing for each income category through the regional
housing needs assessment (RHNA) process. A housing element
must identify and analyze existing and projected housing
needs, identify adequate sites with appropriate zoning to meet
its share of the RHNA, and ensure that regulatory systems
provide opportunities for, and do not unduly constrain,
housing development.
3)Under current law, cities and counties are required to
demonstrate that sites are adequate to accommodate housing for
each income group based on the zoning after taking into
consideration individual site factors such as property size,
existing uses, environmental constraints, and economic
constraints. With respect to the zoning, density is used as a
proxy for affordability. Jurisdictions may establish the
adequacy of a site for very low- or low-income housing by
demonstrating that the site realistically allows the densities
established in statute (commonly referred to as the "Mullin
densities") or by providing an analysis of how a lower density
can accommodate the need for affordable housing. The
safe-harbor Mullin densities are 30 units per acre for
jurisdictions in metropolitan counties, 20 units per acre in
"suburban" jurisdictions, 15 units per acre in cities in
non-metropolitan counties, and 10 units per acre in
unincorporated areas in non-metropolitan counties.
4)To the extent that a community does not have adequate sites
within its existing inventory
of residentially zoned land, then the community must adopt a
program to rezone land at appropriate densities to accommodate
the community's housing need for all income groups during the
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planning period With respect to sites rezoned to accommodate
its need for very low- and low-income housing, the new zoning
must allow multifamily residential use by right (i.e. without
discretionary review of individual projects other than design
review).
5)HCD reviews both draft and adopted housing elements to
determine whether or not they are in substantial compliance
with the law. The rezonings that a city or county commits to
in its program generally occur throughout the planning period,
after the housing element is adopted and reviewed by HCD,
6)SB 303 proposes major changes to housing element law. The
bill still requires COGs to distribute the RHNA every five
years, but the allocation each city and county receives would
cover a 10-year period. The local government would have to
identify sites in its land use element to accommodate the
10-year housing need, and would have to zone enough land
within the first year of the planning period to accommodate a
five-year housing need. The intent is to make available a
greater supply of land for housing and to ensure that sites
are available at the beginning of each five-year housing
element cycle. The RHNA process, however, is often very
contentious. Because accommodating new housing, especially
affordable housing, is such a politically sensitive topic in
many communities and the allocation of housing need is a
zero-sum game, the pressure on the COGs is intense to allocate
the need to someone else. It is unclear how increasing the
total number of housing units to be allocated will impact the
RHNA process. It may make the process even more politically
contentious.
7)The sponsors of SB 303, the California Major Builders Council,
state that the bill "has one goal: achieve more housing at an
affordable price." They further state that "Current law
includes a big loophole-allowing cities and counties to defer
zoning sites until later in the planning period-sometimes
after the planning period ends. This creates lack of
certainty and the inability to get sites designated for
housing zoned in a timely manner, thus creating an
unintentional transfer of housing obligations to other
communities. It also creates poorer planning decisions and
less ability to protect natural resources. Often, because no
EIR is done for the housing element adoption, there is lack of
adequate information about the natural conditions on the sites
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selected for housing. This leads to poor housing site
designation and unnecessary conflict between housing and
environmental goals. Better analysis up front will lead to
better planning, better site selection, and better
environmental protection."
8)Writing in opposition to the bill, the Association of Monterey
Bay Area Governments states that "The effect of this bill will
be to undercut local and regional efforts to steer housing
development to infill areas. We believe this proposal will
trigger significant sprawl, because-unlike the existing
housing element process-no time is provided to phase in the
availability of housing sites. Furthermore, no time is
provided to address issues related to infill development, to
work with LAFCOs on annexation and sphere of influence
requirements, infrastructure, and other service issues closely
related to that development. While this bill may be
well-intended, it applies a flawed approach that fails to
appreciate the spectrum of issues that affect land
availability. Local governments do not need more state
mandates; they need more funding tools to assist with the
development of infrastructure in infill areas and the
production of affordable units."
9)SB 303 asks local governments to zone land within the first
year of the housing element planning period to accommodate the
need for housing for the entire planning period. Currently
these rezonings tend to take place throughout the planning
period. While supporters call this a "loophole," there are
legitimate reasons why communities need to phase in their
zoning for housing. Rezoning land can be a very
time-consuming and labor-intensive process, especially in
infill areas, where it is extremely difficult to predict which
parcels will become available during the planning period.
Asking local governments to complete rezonings for five years
worth of housing within one year may be asking them to do the
impossible, placing the state's record-high housing element
compliance rates in jeopardy and placing local governments at
risk of lawsuits.
10)While SB 303 pays lip service to the importance of infill
development, the net effect of the one-year zoning requirement
may be to push more housing out into greenfield areas that are
easier to zone. Knowing that more built-out cities will have
difficulty in complying with the zoning requirement, COGs will
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likely face tremendous pressure to allocate higher housing
numbers to communities with large tracts of undeveloped land.
11)SB 303's supporters place the blame for California's
continuing housing crisis squarely on a broken system of local
planning without acknowledging that market forces and other
factors may also play a role. Many cities around the state
report that housing projects that have been approved are not
being built due to the recent downturn in the housing market.
This seems to fly in the face of the builders' argument that
if cities simply make land available, the housing will come
and speaks to the complexity of the issue. It is unclear
whether making changes to only one piece of the housing
equation will result in a dramatic increase in housing
production.
12)SB 303 additionally proposes changes to open-space element
law that drastically narrow the scope of that element. In
current law, open space for purposes of the open-space element
is defined as including six categories of land: open space
for the preservation of natural resources, open space used for
the managed production of resources, open space for outdoor
recreation, open space for public health and safety, open
space in support of the mission of military installations, and
open space for the protection of Native American historic,
cultural, and sacred sights. SB 103 requires the open-space
element to include, among other things, an inventory of
open-space land; a statement of goals, policies, financials
resources, and programs for the preservation of open-space
lands; and a program that sets forth actions the local
government is undertaking to implement the policies and
objectives of the open-space element. However, the bill
limits the definition of open space for these purposes only to
open space used for the managed production of resources (such
as agricultural land) and open space for outdoor recreation.
Thus, the open-space element would not have to consider
natural resource lands such as wildlife habitat, rivers,
streams, beaches, watershed lands, and more; open space for
public health and safety, such as earthquake fault zones,
flood plains, areas of high fire risk, and more; open space in
support of military installations such as buffer zones to
military activities and areas underlying restricted airspace;
and open space for the protection of Native American historic,
cultural, and sacred resources.
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13)The cost to local governments of complying with the
provisions of SB 303 will likely be significant. Currently,
most rezones are developer-driven and thus the developer pays
the cost of the CEQA analysis. By requiring cities and
counties to do the rezonings up front, the cost of CEQA
compliance shifts to local governments. Additional costs
include updating both the open-space and conservation elements
every five years; complying with additional new requirements
for the open-space element; and updating the land use, noise,
safety and circulation elements every 10 years. Local
governments can charge fees to recover the costs of their
planning activities, but these fees rarely end up covering the
full amount.
14)SB 103 includes an appropriation of $45,000,000 from the
$90,000,000 made available in Proposition 84 for planning
grants and planning incentives to set up a revolving loan fund
to help local agencies to comply with the requirements of the
bill. Cities and counties would repay the fund through the
fees they are authorized to charge. Because these fees
generally do not cover the full costs, this loan fund would
eventually be depleted, assuming that cities and counties
would not have to pay back any amounts not collected through
fees. The question of a longer-term funding strategy has yet
to be answered. Additionally, it appears that the use of the
Proposition 84 funds for this purpose may not be consistent
with language in the bond, which states that money is for
planning that "is designed to promote water conservation,
reduce automobile use and fuel consumption, encourage greater
infill and compact development, protect natural resources and
agricultural lands, and revitalize urban and community
centers."
15)Given the scope of changes proposed by SB 303 and the widely
differing viewpoints on what affect the bill will have, the
Committee may wish to strongly consider making this a two-year
bill. While there may be some ability to reach a compromise
on some of the major policy issues, this will take time. A
two-year solution buys time to continue negotiations on the
language while still ensuring that the bill remains within the
Committee's jurisdiction. There is no rush to finish this
bill this year. Most communities in the state are still
working on the fourth revision of their housing elements. The
provisions of this bill would not come into play until the
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fifth revision cycle. Why rush significant policy changes
when more time could result in better outcomes for the state?
16)PROPOSED COMMITTEE AMENDMENTS :
a) Require housing elements to be updated every seven years
rather than every five years.
b) Give local governments until the end of the third year
of the planning period to amend their zoning ordinances to
accommodate their seven-year housing need. This will
ensures that sites are made available during the planning
period while still giving local governments adequate time
to complete all of the necessary rezonings.
c) Specify that in infill areas, local governments can
either rezone land for housing or impose an overlay zone
that allows housing.
d) Narrow the zoning requirement to apply only to cities
and counties that do not have a good track record of zoning
land for housing during the previous planning period.
e) Delete any changes to current law regarding the Mullin
densities.
f) Delete all provisions of the bill dealing with the
open-space element.
g) Delete the requirement that the conservation element be
prepared every five years.
h) Delete the requirement that all other elements of the
general plan be updated every 10 years.
17)This bill has been double-referred to the Housing and
Community Development Committee.
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REGISTERED SUPPORT / OPPOSITION :
Support
CA Major Builders Council [SPONSOR]
Access to Independence
Alvarado and Associates, LLC
Asian Law Alliance
Bay Area Council
Brehm Communities
CA Association of Realtors
CA Federation of Teachers
CA Housing Consortium
Delco Builders and Developers, Inc.
Rancho de Los Encinos
San Mateo County Hispanic Chamber of Commerce
San Diego Regional Chamber of Commerce
West Bay Housing Corp.
Opposition
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Association of Bay Area Governments
Association of Monterey Bay Area Governments
CA League of Conservation Voters
CA State Association of Counties
Cities of Bakersfield, Bellflower, Burbank, Calistoga,
Camarillo, Cerrittos, Chino, Concord, Culver City, Diamond Bar,
Fairfield, Fontana, Laguna Hills, Lakewood, La Mirada, La
Quinta, Mill Valley, Moreno Valley, Napa, Novato, Pomona, Rancho
Cucamonga, Roseville, San Rafael, Sausalito, Soledad, Thousand
Oaks, Tiburon, Tustin, West Covina
League of CA Cities
Monterey County Mayors' Association
Natural Resources Defense Council
Planning and Conservation League
Regional Council of Rural Counties
Sierra Club
Town of Windsor
Analysis Prepared by : Anya Lawler / L. GOV. / (916) 319-3958