Amended in Assembly April 4, 2016

California Legislature—2015–16 Regular Session

Assembly Bill No. 2208

Introduced by Assembly Member Santiago

February 18, 2016

An act to begin delete add Sections 15810 and 25351.7 to end delete begin insert amend Section 65583.2 of end insert the Government Code, relating to begin delete public buildings, and making an appropriation therefore. end delete begin insert housing. end insert

LEGISLATIVE COUNSEL’S DIGEST

AB 2208, as amended, Santiago. begin delete Public building construction and seismic retrofit: additional affordable housing structures or levels. end delete begin insert Local planning: housing element: inventory of land end insert begin insert for residential development. end insert

begin insert

Existing law, the Planning and Zoning Law, requires a city or county to adopt a comprehensive, long-term general plan for the physical development of the city or the county and of any land outside its boundaries that bears relation to its planning. That law requires the general plan to contain specified mandatory elements, including a housing element. Existing law requires the housing element to contain an inventory of land suitable for residential development, and requires that inventory to be used to identify sites that can be developed for housing within the planning period and that are sufficient to provide for the jurisdiction’s share of the regional housing need for all income levels.

end insert begin insert

This bill would expand that inventory of land suitable for residential development to include buildings owned or under the control of a city or a county, zoned for residential or nonresidential use and capable of having residential developments constructed above the existing building, and to include underutilized sites, as defined. By imposing new duties upon local agencies with respect to the housing element of the general plan, this bill would impose a state-mandated local program.

end insert begin insert

The California Constitution requires the state to reimburse local agencies and school districts for certain costs mandated by the state. Statutory provisions establish procedures for making that reimbursement.

end insert begin insert

This bill would provide that no reimbursement is required by this act for a specified reason.

end insert begin delete

Existing law establishes the powers of the State Public Works Board, for the purposes of the State Building Construction Act of 1955, including the authority to construct public buildings, as defined. Existing law requires all moneys received by the board from whatever source derived, to be deposited in the State Treasury to the credit of the Public Buildings Construction Fund, which is continuously appropriated to the board for specific purposes.

end delete begin delete

This bill would require, before constructing, including seismic retrofitting, a public building with state funds, the board to sell the air rights above the public building to a private or nonprofit developer to construct affordable housing above the public building. The bill would also require the public works contract to construct the public building to include provisions that require the building to be constructed or retrofitted to accommodate additional structures or levels that may be added by a private or nonprofit developer to provide affordable housing. By increasing the amount of funds deposited into a continuously appropriated fund, this bill would make an appropriation.

end delete begin delete

Existing law authorizes the board of supervisors of a county to construct, expand, lease, build, rebuild, furnish, refurnish, or repair various public buildings, including a hospital, courthouse, jail, historical museum, aquarium, library, art gallery, art institute, exposition building for exhibiting and advertising farming, mining, manufacturing, livestock raising, and other resources of the county, stadium, coliseum, sports arena, or sports pavilion or other building for holding sports events, exhibitions, and other public meetings. Existing law authorizes a county or city and county to enter into leases and agreements relating to real property and buildings to be used jointly by the county or city and county and any private person, firm, or corporation.

end delete begin delete

This bill would require, before constructing, including seismic retrofitting, a public building with state funds, the board of supervisors to sell the air rights above the public building to a private or nonprofit developer to construct affordable housing above the public building. The bill would also require the public works contract to construct the public building to include provisions that require the building to be constructed or retrofitted to accommodate additional structures or levels that may be added by a private or nonprofit developer to provide affordable housing.

end delete begin delete

The California Constitution requires the state to reimburse local agencies and school districts for certain costs mandated by the state. Statutory provisions establish procedures for making that reimbursement.

end delete begin delete

This bill would provide that, if the Commission on State Mandates determines that the bill contains costs mandated by the state, reimbursement for those costs shall be made pursuant to these statutory provisions.

end delete

Vote: majority. Appropriation:  begin delete yes end delete begin insert no end insert . Fiscal committee: yes. State-mandated local program: yes.

The people of the State of California do enact as follows:

begin insert

begin insert SECTION 1. end insert   

end insert

begin insert Section 65583.2 of the end insert begin insert Government Code end insert begin insert , as
amended by Section 232 of Chapter 303 of the Statutes of 2015,
is amended to read: end insert

65583.2.  

(a)  begin insert (1) end insert begin insert   end insert A city’s or county’s inventory of land suitable
for residential development pursuant to paragraph (3) of
subdivision (a) of Section 65583 shall be used to identify sites that
can be developed for housing within the planning period and that
are sufficient to provide for the jurisdiction’s share of the regional
housing need for all income levels pursuant to Section 65584. As
used in this section, “land suitable for residential development”
includes all of the following:

begin delete

(1)

end delete

begin insert (A) end insert  Vacant sites zoned for residential use.

begin delete

(2)

end delete

begin insert (B) end insert  Vacant sites zoned for nonresidential use that allows
residential development.

begin delete

(3)

end delete

begin insert (C) end insert  Residentially zoned sites that are capable of being developed
at a higher density.

begin delete

(4)

end delete

begin insert (D) end insert  Sites zoned for nonresidential use that can be redeveloped
for, and as necessary, rezoned for, residential use.

begin insert

(E) Buildings owned or under the control of a city or a county,
zoned for residential use and capable of having residential
developments constructed above the existing building.

end insert begin insert

(F) Buildings owned or under the control of a city or a county
and zoned for nonresidential use, that can be rezoned for
residential use and are capable of having residential developments
constructed above the existing building.

end insert begin insert

(G) Underutilized sites zoned for residential use.

end insert begin insert

(H) Underutilized sites zoned for nonresidential use that allow
residential development.

end insert begin insert

(2) For purposes of subparagraphs (G) and (H) of paragraph
(1), “underutilized sites” means properties or portions of property
that are used only at irregular periods or intermittently by the
accountable agency of the local government, or property that is
being used for the accountable agency’s current program purposes
that can be satisfied with only a portion of the property.

end insert

(b) The inventory of land shall include all of the following:

(1) A listing of properties by parcel number or other unique
reference.

(2) The size of each property listed pursuant to paragraph (1),
and the general plan designation and zoning of each property.

(3) For nonvacant sites, a description of the existing use of each
property.

(4) A general description of any environmental constraints to
the development of housing within the jurisdiction, the
documentation for which has been made available to the
jurisdiction. This information need not be identified on a
site-specific basis.

(5) A general description of existing or planned water, sewer,
and other dry utilities supply, including the availability and access
to distribution facilities. This information need not be identified
on a site-specific basis.

(6) Sites identified as available for housing for above
moderate-income households in areas not served by public sewer
systems. This information need not be identified on a site-specific
basis.

(7) A map that shows the location of the sites included in the
inventory, such as the land use map from the jurisdiction’s general
plan, for reference purposes only.

(c) Based on the information provided in subdivision (b), a city
or county shall determine whether each site in the inventory can
accommodate some portion of its share of the regional housing
need by income level during the planning period, as determined
pursuant to Section 65584. The analysis shall determine whether
the inventory can provide for a variety of types of housing,
including multifamily rental housing, factory-built housing,
mobilehomes, housing for agricultural employees, emergency
shelters, and transitional housing. The city or county shall
determine the number of housing units that can be accommodated
on each site as follows:

(1) If local law or regulations require the development of a site
at a minimum density, the department shall accept the planning
agency’s calculation of the total housing unit capacity on that site
based on the established minimum density. If the city or county
does not adopt a law or regulations requiring the development of
a site at a minimum density, then it shall demonstrate how the
number of units determined for that site pursuant to this subdivision
will be accommodated.

(2) The number of units calculated pursuant to paragraph (1)
shall be adjusted as necessary, based on the land use controls and
site improvements requirement identified in paragraph (5) of
subdivision (a) of Section 65583.

(3) For the number of units calculated to accommodate its share
of the regional housing need for lower income households pursuant
to paragraph (2), a city or county shall do either of the following:

(A) Provide an analysis demonstrating how the adopted densities
accommodate this need. The analysis shall include, but is not
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.

(B) The following densities shall be deemed appropriate to
accommodate housing for lower income households:

(i) For an incorporated city within a nonmetropolitan county
and for a nonmetropolitan county that has a micropolitan area:
sites allowing at least 15 units per acre.

(ii) For an unincorporated area in a nonmetropolitan county not
included in clause (i): sites allowing at least 10 units per acre.

(iii) For a suburban jurisdiction: sites allowing at least 20 units
per acre.

(iv) For a jurisdiction in a metropolitan county: sites allowing
at least 30 units per acre.

(d) For purposes of this section, a metropolitan county,
nonmetropolitan county, and nonmetropolitan county with a
micropolitan area shall be as determined by the United States
Census Bureau. A nonmetropolitan county with a micropolitan
area includes the following counties: Del Norte, Humboldt, Lake,
Mendocino, Nevada, Tehama, and Tuolumne and other counties
as may be determined by the United States Census Bureau to be
nonmetropolitan counties with micropolitan areas in the future.

(e) (1) Except as provided in paragraph (2), a jurisdiction shall
be considered suburban if the jurisdiction does not meet the
requirements of clauses (i) and (ii) of subparagraph (B) of
paragraph (3) of subdivision (c) and is located in a Metropolitan
Statistical Area (MSA) of less than 2,000,000 in population, unless
that jurisdiction’s population is greater than 100,000, in which
case it shall be considered metropolitan. A county, not including
the City and County of San Francisco, shall be considered suburban
unless the county is in an MSA of 2,000,000 or greater in
population in which case the county shall be considered
metropolitan.

(2) (A) (i) Notwithstanding paragraph (1), if a county that is
in the San Francisco-Oakland-Fremont California MSA has a
population of less than 400,000, that county shall be considered
suburban. If this county includes an incorporated city that has a
population of less than 100,000, this city shall also be considered
suburban. This paragraph shall apply to a housing element revision
cycle, as described in subparagraph (A) of paragraph (3) of
subdivision (e) of Section 65588, that is in effect from July 1,
2014, to December 31, 2023, inclusive.

(ii) A county subject to this subparagraph shall utilize the sum
existing in the county’s housing trust fund as of June 30, 2013, for
the development and preservation of housing affordable to low- and
very low income households.

(B) A jurisdiction that is classified as suburban pursuant to this
paragraph shall report to the Assembly Committee on Housing
and Community Development, the Senate Committee on
Transportation and Housing, and the Department of Housing and
Community Development regarding its progress in developing
low- and very low income housing consistent with the requirements
of Section 65400. The report shall be provided twice: once, on or
before December 31, 2019, which report shall address the initial
four years of the housing element cycle, and a second time, on or
before December 31, 2023, which report shall address the
subsequent four years of the housing element cycle and the cycle
as a whole. The reports shall be provided consistent with the
requirements of Section 9795.

(f) A jurisdiction shall be considered metropolitan if the
jurisdiction does not meet the requirements for “suburban area”
above and is located in an MSA of 2,000,000 or greater in
population, unless that jurisdiction’s population is less than 25,000
in which case it shall be considered suburban.

(g) For sites described in paragraph (3) of subdivision (b), the
city or county shall specify the additional development potential
for each site within the planning period and shall provide an
explanation of the methodology used to determine the development
potential. The methodology shall consider factors including the
extent to which existing uses may constitute an impediment to
additional residential development, development trends, market
conditions, and regulatory or other incentives or standards to
encourage additional residential development on these sites.

(h) The program required by subparagraph (A) of paragraph (1)
of subdivision (c) of Section 65583 shall accommodate 100 percent
of the need for housing for very low and low-income households
allocated pursuant to Section 65584 for which site capacity has
not been identified in the inventory of sites pursuant to paragraph
(3) of subdivision (a) on sites that shall be zoned to permit
owner-occupied and rental multifamily residential use by right
during the planning period. These sites shall be zoned with
minimum density and development standards that permit at least
16 units per site at a density of at least 16 units per acre in
jurisdictions described in clause (i) of subparagraph (B) of
paragraph (3) of subdivision (c) and at least 20 units per acre in
jurisdictions described in clauses (iii) and (iv) of subparagraph (B)
of paragraph (3) of subdivision (c). At least 50 percent of the very
low and low-income housing need shall be accommodated on sites
designated for residential use and for which nonresidential uses
or mixed-uses are not permitted, except that a city or county may
accommodate all of the very low and low-income housing need
on sites designated for mixed uses if those sites allow 100 percent
residential use and require that residential use occupy 50 percent
of the total floor area of a mixed-use project.

(i) For purposes of this section and Section 65583, the phrase
“use by right” shall mean that the local government’s review of
the owner-occupied or multifamily residential use may not require
a conditional use permit, planned unit development permit, or other
discretionary local government review or approval that would
constitute a “project” for purposes of Division 13 (commencing
with Section 21000) of the Public Resources Code. Any subdivision
of the sites shall be subject to all laws, including, but not limited
to, the local government ordinance implementing the Subdivision
Map Act. A local ordinance may provide that “use by right” does
not exempt the use from design review. However, that design
review shall not constitute a “project” for purposes of Division 13
(commencing with Section 21000) of the Public Resources Code.
Use by right for all rental multifamily residential housing shall be
provided in accordance with subdivision (f) of Section 65589.5.

(j) Notwithstanding any other provision of this section, within
one-half mile of a Sonoma-Marin Area Rail Transit station, housing
density requirements in place on June 30, 2014, shall apply.

(k) This section shall remain in effect only until December 31,
2023, and as of that date is repealed, unless a later enacted statute,
that is enacted before December 31, 2023, deletes or extends that
date.

begin insert

begin insert SEC. 2. end insert   

end insert

begin insert Section 65583.2 of the end insert begin insert Government Code end insert begin insert , as added
by Chapter 875 of the Statutes of 2014, is amended to read: end insert

65583.2.  

(a)  begin insert (1) end insert begin insert   end insert A city’s or county’s inventory of land suitable
for residential development pursuant to paragraph (3) of
subdivision (a) of Section 65583 shall be used to identify sites that
can be developed for housing within the planning period and that
are sufficient to provide for the jurisdiction’s share of the regional
housing need for all income levels pursuant to Section 65584. As
used in this section, “land suitable for residential development”
includes all of the following:

begin delete

(1)

end delete

begin insert (A) end insert  Vacant sites zoned for residential use.

begin delete

(2)

end delete

begin insert (B) end insert  Vacant sites zoned for nonresidential use that allows
residential development.

begin delete

(3)

end delete

begin insert (C) end insert  Residentially zoned sites that are capable of being developed
at a higher density.

begin delete

(4)

end delete

begin insert (D) end insert  Sites zoned for nonresidential use that can be redeveloped
for, and, as necessary, rezoned for, residential use.

begin insert

(E) Buildings owned or under the control of a city or a county,
zoned for residential use and capable of having residential
developments constructed above the existing building.

end insert begin insert

(F) Buildings owned or under the control of a city or a county
and zoned for nonresidential use, that can be rezoned for
residential use and are capable of having residential development
constructed above the existing building.

end insert begin insert

(G) Underutilized sites zoned for residential use.

end insert begin insert

(H) Underutilized sites zoned for nonresidential use that allow
residential development.

end insert begin insert

(2) For purposes of subparagraphs (G) and (H) of paragraph
(1), “underutilized sites” means properties or portions of property
that are used only at irregular periods or intermittently by the
accountable agency of the local government or property that is
being used for the accountable agency’s current program purposes
that can be satisfied with only a portion of the property.

end insert

(b) The inventory of land shall include all of the following:

(1) A listing of properties by parcel number or other unique
reference.

(2) The size of each property listed pursuant to paragraph (1),
and the general plan designation and zoning of each property.

(3) For nonvacant sites, a description of the existing use of each
property.

(4) A general description of any environmental constraints to
the development of housing within the jurisdiction, the
documentation for which has been made available to the
jurisdiction. This information need not be identified on a
site-specific basis.

(5) A general description of existing or planned water, sewer,
and other dry utilities supply, including the availability and access
to distribution facilities. This information need not be identified
on a site-specific basis.

(6) Sites identified as available for housing for above
moderate-income households in areas not served by public sewer
systems. This information need not be identified on a site-specific
basis.

(7) A map that shows the location of the sites included in the
inventory, such as the land use map from the jurisdiction’s general
plan for reference purposes only.

(c) Based on the information provided in subdivision (b), a city
or county shall determine whether each site in the inventory can
accommodate some portion of its share of the regional housing
need by income level during the planning period, as determined
pursuant to Section 65584. The analysis shall determine whether
the inventory can provide for a variety of types of housing,
including multifamily rental housing, factory-built housing,
mobilehomes, housing for agricultural employees, emergency
shelters, and transitional housing. The city or county shall
determine the number of housing units that can be accommodated
on each site as follows:

(1) If local law or regulations require the development of a site
at a minimum density, the department shall accept the planning
agency’s calculation of the total housing unit capacity on that site
based on the established minimum density. If the city or county
does not adopt a law or regulations requiring the development of
a site at a minimum density, then it shall demonstrate how the
number of units determined for that site pursuant to this subdivision
will be accommodated.

(2) The number of units calculated pursuant to paragraph (1)
shall be adjusted as necessary, based on the land use controls and
site improvements requirement identified in paragraph (5) of
subdivision (a) of Section 65583.

(3) For the number of units calculated to accommodate its share
of the regional housing need for lower income households pursuant
to paragraph (2), a city or county shall do either of the following:

(A) Provide an analysis demonstrating how the adopted densities
accommodate this need. The analysis shall include, but is not
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.

(B) The following densities shall be deemed appropriate to
accommodate housing for lower income households:

(i) For an incorporated city within a nonmetropolitan county
and for a nonmetropolitan county that has a micropolitan area:
sites allowing at least 15 units per acre.

(ii) For an unincorporated area in a nonmetropolitan county not
included in clause (i): sites allowing at least 10 units per acre.

(iii) For a suburban jurisdiction: sites allowing at least 20 units
per acre.

(iv) For a jurisdiction in a metropolitan county: sites allowing
at least 30 units per acre.

(d) For purposes of this section, a metropolitan county,
nonmetropolitan county, and nonmetropolitan county with a
micropolitan area shall be as determined by the United States
Census Bureau. A nonmetropolitan county with a micropolitan
area includes the following counties: Del Norte, Humboldt, Lake,
Mendocino, Nevada, Tehama, and Tuolumne and other counties
as may be determined by the United States Census Bureau to be
nonmetropolitan counties with micropolitan areas in the future.

(e) A jurisdiction shall be considered suburban if the jurisdiction
does not meet the requirements of clauses (i) and (ii) of
subparagraph (B) of paragraph (3) of subdivision (c) and is located
in a Metropolitan Statistical Area (MSA) of less than 2,000,000
in population, unless that jurisdiction’s population is greater than
100,000, in which case it shall be considered metropolitan. A
county, not including the City and County of San Francisco, shall
be considered suburban unless the county is in an MSA of
2,000,000 or greater in population in which case the county shall
be considered metropolitan.

(f) A jurisdiction shall be considered metropolitan if the
jurisdiction does not meet the requirements for “suburban area”
above and is located in an MSA of 2,000,000 or greater in
population, unless that jurisdiction’s population is less than 25,000
in which case it shall be considered suburban.

(g) For sites described in paragraph (3) of subdivision (b), the
city or county shall specify the additional development potential
for each site within the planning period and shall provide an
explanation of the methodology used to determine the development
potential. The methodology shall consider factors including the
extent to which existing uses may constitute an impediment to
additional residential development, development trends, market
conditions, and regulatory or other incentives or standards to
encourage additional residential development on these sites.

(h) The program required by subparagraph (A) of paragraph (1)
of subdivision (c) of Section 65583 shall accommodate 100 percent
of the need for housing for very low and low-income households
allocated pursuant to Section 65584 for which site capacity has
not been identified in the inventory of sites pursuant to paragraph
(3) of subdivision (a) on sites that shall be zoned to permit
owner-occupied and rental multifamily residential use by right
during the planning period. These sites shall be zoned with
minimum density and development standards that permit at least
16 units per site at a density of at least 16 units per acre in
jurisdictions described in clause (i) of subparagraph (B) of
paragraph (3) of subdivision (c) and at least 20 units per acre in
jurisdictions described in clauses (iii) and (iv) of subparagraph (B)
of paragraph (3) of subdivision (c). At least 50 percent of the very
low and low-income housing need shall be accommodated on sites
designated for residential use and for which nonresidential uses
or mixed-uses are not permitted, except that a city or county may
accommodate all of the very low and low-income housing need
on sites designated for mixed uses if those sites allow 100 percent
residential use and require that residential use occupy 50 percent
of the total floor area of a mixed-use project.

(i) For purposes of this section and Section 65583, the phrase
“use by right” shall mean that the local government’s review of
the owner-occupied or multifamily residential use may not require
a conditional use permit, planned unit development permit, or other
discretionary local government review or approval that would
constitute a “project” for purposes of Division 13 (commencing
with Section 21000) of the Public Resources Code. Any subdivision
of the sites shall be subject to all laws, including, but not limited
to, the local government ordinance implementing the Subdivision
Map Act. A local ordinance may provide that “use by right” does
not exempt the use from design review. However, that design
review shall not constitute a “project” for purposes of Division 13
(commencing with Section 21000) of the Public Resources Code.
Use by right for all rental multifamily residential housing shall be
provided in accordance with subdivision (f) of Section 65589.5.

(j) This section shall become operative on December 31, 2023.

begin insert

begin insert SEC. 3. end insert   

end insert begin insert

No reimbursement is required by this act pursuant to
Section 6 of Article XIII B of the California Constitution because
a local agency or school district has the authority to levy service
charges, fees, or assessments sufficient to pay for the program or
level of service mandated by this act, within the meaning of Section
17556 of the Government Code.

end insert

begin delete

SECTION 1.  

Section 15810 is added to the Government Code,
to read:

15810.  

(a) Notwithstanding any law before constructing, which
includes seismic retrofitting, a public building with state funds,
the board shall sell the air rights above the public building to a
private or nonprofit developer to construct affordable housing
above the public building.

(b) Notwithstanding any law, when state funds are used to
construct, including seismically retrofit, a public building, the
public works contract shall include provisions that require the
building to be constructed or retrofitted to accommodate additional
structures or levels that may be added by a private or nonprofit
developer to provide affordable housing.

end delete

begin delete

SEC. 2.  

Section 25351.7 is added to the Government Code, to
read:

25351.7.  

(a) Notwithstanding any law before constructing,
which includes seismic retrofitting, a public building with state
funds, the board of supervisors shall sell the air rights above the
public building to a private or nonprofit developer to construct
affordable housing above the public building.

(b) Notwithstanding any law, when state funds are used to
construct, including seismically retrofit, a public building, the
public works contract shall include provisions that require the
building to be constructed or retrofitted to accommodate additional
structures or levels that may be added by a private or nonprofit
developer to provide affordable housing.

end delete

begin delete

SEC. 3.  

If the Commission on State Mandates determines that
this act contains costs mandated by the state, reimbursement to
local agencies and school districts for those costs shall be made
pursuant to Part 7 (commencing with Section 17500) of Division
4 of Title 2 of the Government Code.

end delete