BILL ANALYSIS Ó
AB 542
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Date of Hearing: April 27, 2011
ASSEMBLY COMMITTEE ON HOUSING AND COMMUNITY DEVELOPMENT
Norma Torres, Chair
AB 542 (Allen) - As Introduced: February 16, 2011
SUBJECT : Land use: housing element: regional housing need.
SUMMARY : Specifies that sites zoned at densities less than a
jurisdiction's default density shall be deemed appropriate to
accommodate housing for lower-income households, if the site is
owned by the planning agency and set aside for affordable
housing development, or if the planning agency has offered to
provide subsidies of at least an unspecified dollar amount per
unit for affordable housing construction.
EXISTING LAW
1)Requires every city and county to prepare and adopt a general
plan containing seven mandatory elements, including a housing
element (Government Code Sections 65300 and 65302).
2)Requires a jurisdiction's housing element to identify and
analyze existing and projected housing needs, identify
adequate sites with appropriate zoning to meet the housing
needs of all income segments of the community, and ensure that
regulatory systems provide opportunities for, and do not
unduly constrain, housing development (Government Code Section
65583).
3)Requires cities and counties within a metropolitan planning
organization in a region classified as nonattainment for one
or more pollutants regulated by the federal Clean Air Act to
revise their housing elements every eight years based on a
staggered statutory schedule (Government Code Section 65588).
4)Requires all other local governments to revise their housing
elements every five years based on a staggered statutory
schedule (Government Code Section 65588).
5)Requires, prior to each housing element revision, that each
council of governments (COG), in conjunction with the
Department of Housing and Community Development (HCD), prepare
a regional housing needs assessment (RHNA) and allocate to
each jurisdiction in the region its fair share of the housing
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need for all income categories. Where a COG does not exist,
HCD determines the local share of the region's housing need.
(Government Code Sections 65584-65584.09)
6)Divides the RHNA into the following income categories:
a) Very low-income (50% or lower of area median income),
including extremely low-income (30% or lower of area median
income);
b) Low-income (80% or lower of area median income);
c) Moderate-income (between 80% and 120% of area median
income); and
d) Above moderate-income (exceeding 120% area median
income).
7)Requires housing elements to include an inventory of land
suitable for residential development that identifies enough
sites that can be developed for housing within the planning
period to accommodate the jurisdiction's entire share of the
RHNA (Government Code Sections 65583 and 65583.2).
8)Allows a jurisdiction to do either of the following in order
to show that a site is adequate to accommodate some portion of
its share of the RHNA for lower-income households:
a) Provide an analysis demonstrating that the site is
adequate to support lower-income housing development at its
zoned density level, and requires the analysis to include,
but not be limited to, factors such as market demand,
financial feasibility, or information based on development
project experience within a zone or zones that provide
housing for lower income households; or
b) Zone the site at the jurisdiction's "default" density
level.
(Government Code Section 65583.2)
9)Establishes the following "default" density levels for
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purposes of establishing a site's adequacy for supporting
lower-income housing development:
a) 15 units per acre for incorporated cities within
nonmetropolitan counties and for nonmetropolitan counties
that have micropolitan areas;
b) 10 units per acre for unincorporated areas in all
nonmetropolitan counties not included in clause (i): sites
allowing at least 10 units per acre.
c) 20 units per acre for suburban jurisdictions; and
d) 30 units per acre jurisdictions in metropolitan.
(Government Code Section 65583.2)
10)Specifies that jurisdictions are classified as follows:
a) Metropolitan counties, nonmetropolitan counties, and
nonmetropolitan counties with micropolitan areas are as
determined by the United States Census Bureau;
b) Nonmetropolitan counties with micropolitan areas include
the following counties: Del Norte, Humboldt, Lake,
Mendocino, Nevada, Tehama, and Tuolumne and such other
counties as may be determined by the United States Census
Bureau to be nonmetropolitan counties with micropolitan
areas in the future;
c) Suburban jurisdictions are those located in a
Metropolitan Statistical Area (MSA) of less than 2,000,000,
unless that jurisdiction's population is greater than
100,000, in which case it is considered metropolitan.
Counties, not including the City and County of San
Francisco, are considered suburban unless they are in an
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MSA of 2,000,000 or greater in population in which case
they are considered metropolitan; and
d) Metropolitan jurisdictions are those located in an MSA
of 2,000,000 or greater, unless the jurisdiction's
population is less than 25,000 in which case it is
considered suburban.
(Government Code Section 65583.2)
11)Requires each local government to make sites available during
the first three years of the housing element planning period
with appropriate zoning and development standards and with
services and facilities to accommodate the city's or county's
share of the regional housing need (Government Code Section
65583).
FISCAL EFFECT : None
COMMENTS :
Background
Every local government in California is required to prepare and
adopt a housing element as part of its general plan. The
housing element process starts when HCD determines the number of
new housing units a region is projected to need at all income
levels (very low-, low-, moderate-, and above-moderate income)
over the course of the next housing element planning period to
accommodate population growth and address existing deficiencies
in the housing supply. This number is often referred to as the
"RHNA" number (short for regional housing needs assessment).
The COG for the region, or HCD for areas with no COG, then
assigns every city and county in the region its fair share of
the RHNA number to every based on a variety of factors.
In preparing its housing element, a city or county must show how
it plans to accommodate its share of the RHNA. The housing
element must include an inventory of sites already zoned for
housing. If a community does not have enough sites within its
existing inventory of residentially zoned land to accommodate
its entire RHNA, then the community must adopt a program to
rezone land within the first three years of the planning period.
With respect to sites rezoned to accommodate the need for very
low- and low-income housing, the new zoning must allow
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multifamily residential use by right and be zoned at minimum
densities of 16 to 50 units per acre depending on the
jurisdiction.
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 can be used as a proxy for affordability.
Jurisdictions may establish the adequacy of a site for very low-
or low-income housing by showing that it is zoned at the
"default" density (also referred to as the Mullin density).
These densities range from 10 to 30 units per acre depending on
the type of jurisdiction. Jurisdictions may also include sites
zoned at lower densities by providing an analysis of how the
lower density can accommodate the need for affordable housing.
The purpose of housing element law is to create opportunities
for the private housing market to function. Builders cannot
build without access to appropriately zoned land, and current
land use plans in many cities and counties in California fail to
provide sufficient opportunities to accommodate projected
population growth. Housing element law addresses this problem
directly by requiring cities and counties to zone land at
appropriate densities to accommodate the projected housing needs
of all income groups and to remove constraints that prevent such
sites from being developed at the allowed densities. Cities and
counties, however, are not required to build housing because
that is the role of private developers. The law holds cities
and counties accountable only for that which they control:
zoning and land use entitlements. Without the ability to
enforce housing element law, the market's ability to meet
housing demand may well remain locked up.
Adequate Sites for Affordable Housing
The default densities were added to housing element law in 2004,
AB 2348 (Mullin), Chapter 724. Prior to that time, the only way
for a city or county to establish the adequacy of a site for
affordable housing was by providing an analysis demonstrating
the site's suitability. Local governments complained that the
existing process was too subjective and requested that an
objective standard be placed in law to give them certainty that
sites would be accepted by HCD during the housing element review
process.
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Density level was chosen as the objective standard in
recognition of the fact that generally, density is needed in
order to achieve the economies of scale needed to achieve
long-term affordability and to ensure the public subsidies are
used efficiently and effectively. If a site is zoned at or above
a jurisdiction's default density, HCD must accept the site as
adequate to accommodate affordable housing. This saves
jurisdictions time and effort in preparing their housing
elements by allowing them to avoid a detailed analysis of every
site in their housing element that is expected to accommodate a
portion of the lower-income RHNA.
Purpose of the Bill
Napa County's last housing element was due in June of 2009.
HCD's review of the draft element found that it was not in
compliance with the law, primarily because HCD did not believe
that the county had identified adequate sites to support the
development of affordable housing. The county had included a
number of sites in its housing element at below the default
density of 20 units per acre, and HCD did not believe the
county's analysis of those sites was enough to establish their
adequacy. The county disagrees with HCD's position and believes
that it provided all of the analysis that the law requires. The
county adopted the housing element despite HCD's finding that it
was not in compliance with the law and was subsequently sued by
Latinos Unidos, a farmworker advocacy group. That suit is
currently being litigated.
The county's next housing element update is due in October,
2014. Prior to that update, the county is seeking legislation
that it believes would make it easier for the county to produce
a housing element that complies with the law. AB 542 is one of
two bills that county is sponsoring to provide more flexibility.
The other, AB 679, has also been referred to this committee.
AB 542 requires HCD to accept zoned at densities less than a
jurisdiction's default density as adequate to support housing
for lower-income households, if the site is owned by the
planning agency and set aside for affordable housing
development, or if the planning agency has offered to provide
subsidies of at least an unspecified dollar amount per unit for
affordable housing construction.
Housing Element Working Group
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AB 2348 (Mullin) was one of the major pieces of legislation that
came out of the Housing Element Working Group (HEWG). The group,
which was convened by HCD in 2003, was a broad-based group that
included representatives from local government, councils of
government, the for-profit and non-profit development community,
and affordable housing advocacy groups. HCD proposed the group
after several lengthy and divisive Legislative battles over
changes to housing element law, including the fight over SB 910
(Dunn, 2002) that would have imposed severe penalties on local
governments for failing to adopt a housing element that HCD
found to be in compliance with the law.
The (HEWG) met from June through November of 2003 and reached
consensus on reform proposals in three major areas: the
regional housing needs allocation process, increasing housing
development certainty, and the identification of adequate sites.
AB 2348 was one of the legislative vehicles for implementing
these reforms. Because the bill represented a consensus
agreement, it received broad bi-partisan support throughout the
legislative process. No "no" votes were cast against the bill.
HCD recently reconvened a new HEWG to evaluate how effective the
changes that came out of the prior HEWG have been and to examine
whether further changes to housing element law may be necessary
to achieve the goals of SB 375. The group has already met
several times and has identified a variety of issues on which to
focus its attention.
AB 542 makes changes to what was a carefully crafted compromise
around the adequate sites analysis. Given that the HEWG is
currently meeting and there is no rush to make statutory changes
(Napa County's next housing element update is not due until
October of 2015), the Committee may wish to consider asking the
county to first take this issue to the working group before
pursuing legislation. The HEWG was able to reach consensus on
the issue of the adequate sites analysis in the past, and it may
be worth seeing of its members can reach consensus again.
Arguments in Support
Napa County, the sponsor of AB 542, argues that the bill would
provide a needed mechanism to address local land use and
geographical challenges while working to comply with the spirit
of housing element law. The county notes that although the bill
would somewhat reduce HCD's discretion, it would provide an
incentive for local agencies to fund affordable housing
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development. The county believes that in many cases, the
resulting development would be more in keeping with the scale
and density of rural communities than developments designed at
the default densities.
Arguments in Opposition
Writing in opposition, the California Rural Legal Assistance
Foundation and the Western Center on Law and Poverty note that
the density standards in current law were carefully crafted to
ensure that the planning in the housing element results in real
sites for housing for lower-income households and that the sites
will actually result in the development of affordable housing.
They argue that the fact that a site is owned by a local
government or has a commitment of funds does nothing to overcome
the practical limitations of a parcel zoned at densities too low
to accommodate affordable housing. They further argue that
allowing jurisdictions to exhaust all of their affordable
housing dollars on a few units in order to meet this standard
would only further undermine the goal of having very
jurisdiction working to provide as many affordable units as
possible.
Committee Amendments
On page 4, strike lines 10-15 and insert:
(4) Notwithstanding subparagraph (B) of paragraph (3), a site
within the unincorporated area of a county shall be deemed
appropriate to accommodate housing for lower income
households if all of the following apply:
(A) Either the site is owned by the county, is set aside
for affordable housing, and the land will be provided
for the development of affordable housing at no cost to
the developer; or the county has committed to providing
subsidies of at least 15% of the total development cost
per unit for the construction of affordable housing on
the site during the planning period.
(B) The site is zoned to allow a minimum residential
density of 10 units per acre.
(C) The site is located close to jobs and within one mile
of a grocery store or an elementary school.
If, by the end of the second year of the planning period, the
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county has not entered into an enforceable agreement to provide
committed assistance, as defined in paragraph (4) of subdivision
(c) of Section 65583.1, for the development of affordable units
on a site included in a county's housing element pursuant to
this paragraph, the county shall, not later than July 1 of the
fourth year of the planning period, identify additional adequate
sites pursuant to paragraph (1) of subdivision (c) of Section
65583 sufficient to accommodate the number of units for which
committed assistance was not provided.
Double-Referred
This bill was also referred to the Local Government Committee,
where it passed on April 6, 2011, by a vote of 9-0.
REGISTERED SUPPORT / OPPOSITION :
Support
County of Napa (sponsor)
California State Association of Counties
Napa Valley Community Housing
Opposition
California Rural Legal Assistance Foundation
Western Center on Law and Poverty
Analysis Prepared by : Anya Lawler / H. & C.D. / (916)
319-2085