BILL ANALYSIS Ó
AB 1103
Page 1
Date of Hearing: April 27, 2011
ASSEMBLY COMMITTEE ON HOUSING AND COMMUNITY DEVELOPMENT
Norma Torres, Chair
AB 1103 (Huffman) - As Amended: March 31, 2011
SUBJECT : Land use: housing element.
SUMMARY : Makes a number of changes to housing element law.
Specifically, this bill :
1)Adds second units and units and foreclosed property to the
types of existing units a local government can count towards
meeting a portion of its regional housing need if it provides
committed assistance to make the units affordable.
2)Allows a city or county to request that the council of
governments adjust the jurisdiction's "default" density if
based on a demonstration by the city or county that the
density is not consistent with the city's or county's
designation as nonmetropolitan, suburban, or metropolitan.
3)Specifies that a city or county may meet the appropriate
regional housing needs assessment without using land use
controls to set aside the appropriate densities throughout the
jurisdiction.
4)Allows a local government to county each housing unit that
meets the requirements of the jurisdiction's sustainable
communities strategy as one and one half units for purposes of
meeting the local government's regional housing needs
assessment.
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
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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
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
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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
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:
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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
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).
12)Allows a city or county to meet up to 25% of its share of the
regional housing need through a program committing the local
government to make certain existing housing units affordable
to low- and very low-income households during the planning
period through the provision of committed assistance
(Government Code Section 65583.1).
13)Limits the program to the following categories of units:
a) Units that are to be substantially rehabilitated and
that will have long-term affordability covenants and
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restriction that require them to be available to, and
occupied by, a person of low- or very low income at
affordable housing costs for at least 20 years;
b) Units that are located in a multifamily rental housing
complex of four or more units, will be converted from
nonaffordable to affordable, and will have long-term
affordability covenants and restrictions that require the
unit to be affordable to persons of low- or very low-income
for at least 55 years; and
c) Units in an assisted housing development at risk of
conversion to market rate housing or another use that will
be preserved at an affordable housing cost to persons or
families of low or very low incomes for at least 40 years.
(Government Code Section 65583.1)
14)Defines "committed assistance" to mean that the city or
county enters into a legally enforceable agreement during the
period from the beginning of the projection period until the
end of the second year of the planning period that obligates
sufficient available funds to provide the assistance necessary
to make the identified units affordable and that requires that
the units be made available for occupancy within two years of
the execution of the agreement (Government Code Section
65583.1).
1)Specifies that if, by July 1 of the third year of the planning
period, the city or county has not committed assistance for
all of the units specified in its housing element, the city or
county must identify adequate sites to accommodate the number
of units for which committed assistance was not provided
(Government Code Section 65583.1).
2)Specifies that if a city or county does not identify adequate
sites to address any shortfalls in committed assistance, or
fails to complete the rehabilitation, acquisition, purchase of
affordability covenants, or preservation of any housing unit
within two years after committed assistance was provided to
that unit, then it is limited in the next housing element to
only the number of units actually provided or preserved due to
committed assistance rather than 25% of its share of the
regional housing need (Government Code Section 65583.1).
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3)Requires metropolitan planning organizations to include a
sustainable communities strategy (SCS), as defined, in their
regional transportation plans, or an alternative planning
strategy (APS), for the purpose of reducing greenhouse gas
emissions; aligns planning for transportation and housing, and
creates; and creates specified incentives for the
implementation of the strategies. (SB 375 (Steinberg), Chapter
728, Statutes of 2008).
FISCAL EFFECT : Unknown
COMMENTS :
Background
Every local government is required to prepare 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-, lower-,
moderate-, and above-moderate income) over the course of the
next housing element planning period to accommodate population
growth and overcome 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 a share of the RHNA
number to every city and county in the region 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
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
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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.
Existing law allows jurisdictions to meet up to 25% of their
zoning obligation by instead adopting a program to make certain
existing housing units affordable to low- and very low-income
households during the planning period. Eligible units include
units that are to be substantially rehabilitated, units in
multifamily rental complexes that are to be converted from
unaffordable to affordable, and units in an assisted housing
development (such as public housing) that are at risk of
conversion to market rate or to another use. In all cases, the
units must have affordability covenants and restrictions that
will keep them affordable to low- and very-low income households
for 20 to 55 years depending on the type of unit.
SB 375 (Steinberg, Chapter 728, Statutes of 2008), requires
metropolitan planning organizations to include a sustainable
communities strategy (SCS) in their regional transportation
plans. The SCS will outline the region's plan for combining
transportation resources, such as roads and mass transit, with a
realistic land use pattern, in order to meet a state target for
reducing greenhouse gas emissions. The strategy must take into
account the region's housing needs, transportation demands, and
protection of resource and farm lands. SB 375 requires that COGs
allocate the RHNA in a manner that is consistent with the SCS.
Purpose of the Bill
According to the author, the goal of AB 1103 is to provide
flexibility for local governments to allow them to meet the
housing needs of their residents and workforce. The bill is
intended to allow cities and counties to find creative and
innovative ways of providing housing, and provides incentives
for smart growth development, while ensuring local governments
meet their regional housing needs.
Housing Element Working Group
A number of the changes proposed by AB 1103, including the
changes relating to the default densities, impact reforms to
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housing element law 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.
The bills that implemented the reform proposals represented a
consensus agreement and received broad bi-partisan support
throughout the legislative process. No "no" votes were cast
against the bills.
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.
Given that the HEWG is currently meeting, the Committee may wish
to consider whether it makes sense to allow the working group to
try to reach consensus around some of the issues raised in AB
1103 before pursuing legislation.
Staff Comments
AB 1103 contains language that appears to be intended to make
clear that a city or county does not have to zone at its default
density. However, this is already the law. In establishing the
adequacy of sites for affordable housing, current law allows a
city or county to either zone the site at the default density or
provide an analysis demonstrating the site's adequacy. The law
is not ambiguous on this point, so it is unclear why any further
clarification is necessary.
AB 1103 additionally allows jurisdictions to ask their COG for a
lower default density than the one provided in law. It is
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unclear on what basis a COG would judge whether or not a lower
default density is appropriate for a particular jurisdiction.
In addition, given that cities and counties have no obligation
to zone land at their default density, it is unclear why this
language is necessary. If a local government can show that
affordable housing can be developed within the jurisdiction at
lower densities, then the law allows these lower density sites
to count towards meeting a share of the jurisdiction's RHNA for
lower-income households. If local governments feel that HCD's
process for accepting lower-density sites is not working
adequately, then the Committee may wish to consider asking the
HEWG to discuss this issue to see what, if any, changes may be
warranted.
With respect to the language in AB 1103 relating to the extra
credit for units that are consistent with a local jurisdiction's
SCS, this language may fundamentally conflict with the goals of
SB 375. Part of the goal of SB 375 is to ensure that the right
amounts of housing get built in the right locations as part of
the overarching strategy of encouraging development patterns
that lead to reductions in greenhouse gas emissions. SB 375
requires the regional housing needs allocation plan to be
consistent with the region's SCS. If a local government can get
extra credit for housing that is consistent with the SCS, this
means that the jurisdiction can provide fewer units than the SCS
and the RHNA process determined were necessary. Thus, the right
amounts of housing will not end up in the right places as
envisioned by the SCS.
Committee Amendments
1)Delete the portions of the bill having to do with the
"default" densities (page 10, lines 28-37) and the language
relating to extra credit for housing units that are consistent
with a jurisdiction's sustainable communities strategy (page
12, lines 22-27).
2)Redraft the language allowing jurisdictions to count second
units and units on foreclosed property that are converted from
nonaffordable to affordable to low- and very low-income
households with committed assistance from the jurisdictions as
follows:
On page 4, line 16, strike "(e)"
On page 5, line 15, after "located" insert: "either on
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foreclosed property or"
On page 6, rewrite (D) as follows:
(D) Units that are second units on a property that will be
converted with committed assistance from the city or county
from nonaffordable to affordable to low- or very low-income
households by the purchase of affordability covenants and
restrictions that require the unit to be affordable to and
reserved for occupancy by low- or very-low income
households for a period of at least 40 years.
1)Insert the following uncodified language:
It is the intent of the Legislature to examine whether the
densities specified in subparagraph (B) of paragraph (3) of
subsection (c) of Section 65583.2 of the Government Code could
be adjusted for some jurisdiction without impeding the
attainment of the state housing goal as described in Section
65580 of the Government Code.
Double referred: The Assembly Committee on rules referred AB
1103 to the Committee on Housing and Community Development and
Local Government. If AB 1103 passes this committee, the bill
must be referred to the Committee on Local Government.
REGISTERED SUPPORT / OPPOSITION :
Support
City of Novato
Fireman's Fund Insurance Companies
San Marin Compatible Housing Coalition
Opposition
None on file
Analysis Prepared by : Anya Lawler / H. & C.D. / (916)
319-2085