BILL ANALYSIS Ó
AB 2557
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Date of Hearing: April 27, 2016
ASSEMBLY COMMITTEE ON LOCAL GOVERNMENT
Susan Talamantes Eggman, Chair
AB 2557
(Santiago and Bloom) - As Amended April 18, 2016
SUBJECT: Zoning regulations: interim ordinances.
SUMMARY: Deletes provisions in current law that allow a city or
county to adopt an interim emergency ordinance that has the
effect of denying approvals needed for the development of
projects with a significant component of multifamily housing,
and declares that the section of code relating to the ability of
a city or county to enact emergency and interim ordinances, as
proposed to be amended by the bill, shall apply to charter
cities. Specifically, this bill:
1)Specifies that an interim ordinance adopted by a city or
county shall not have the effect of denying approvals needed
for the development of projects with a significant component
of multifamily housing.
2)Deletes provisions in current law that allow a city or county
to adopt an interim ordinance that has the effect of denying
approvals needed for the development of projects with a
significant component of multifamily housing, and deletes
provisions in existing law that specify that certain findings
need to be made by a city or county, supported by substantial
evidence on the record.
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3)Finds and declares that addressing rising home costs, monthly
rent costs, and housing inventory within the state, including
the development of multifamily housing to alleviate housing
need, is a matter of statewide concern and is not a municipal
affair, thereby applying this code section that allows for
cities and counties to adopt emergency and interim ordinances
(Section 65858 of the Government Code), as proposed to be
amended by the bill's provisions, to all cities, including
charter cities.
EXISTING LAW:
1)Allows the legislative body of a county, city, including a
charter city, or city county, without following the procedures
otherwise required prior to the adoption of a zoning
ordinance, to adopt as an urgency measure an interim ordinance
prohibiting any uses that may be in conflict with a
contemplated general plan, specific plan, or zoning proposal
that the legislative body, planning commission or the planning
department is considering or studying or intends to study
within a reasonable time, in order to protect the public
safety, health, and welfare.
2)Requires a four-fifths vote of the legislative body to adopt
an urgency measure, as specified
in 1), above.
3)Specifies that the interim ordinance shall be of no further
force and effect 45 days from its date of adoption.
4)Allows, after notice and public hearing, the legislative body
to extend the interim ordinance for 10 months and 15 days and
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subsequently extend the interim ordinance for one year, and
specifies that these extensions require a four-fifths vote for
adoption.
5)Specifies that only two extensions may be adopted.
6)Allows, alternatively, an interim ordinance to be adopted by a
four-fifths vote, following notice and a public hearing, in
which case it shall be of no further force and effect 45 days
from its date of adoption. Allows, after notice and public
hearing, the legislative body, by four-fifths vote, to extend
the interim ordinance for 22 months and 15 days.
7)Prohibits the legislative body from adopting or extending any
interim ordinance, unless the ordinance contains legislative
findings that there is a current and immediate threat to the
public health, safety, or welfare, and that the approval of
additional subdivisions, use permits, variances, building
permits, or any other applicable entitlement for use which is
required in order to comply with a zoning ordinance, would
result in the threat to public health, safety, or welfare.
8)Specifies that any interim ordinance adopted that has the
effect of denying approvals needed for the development of
projects with a significant component of multifamily housing
may not be extended, except upon written findings adopted by
the legislative body, supported by substantial evidence on the
record, that all of the following conditions exist:
a) The continued approval of the development of multifamily
housing projects would have a specific, adverse impact upon
the public health or safety. Specifies that a "specific,
adverse impact" means a significant, quantifiable, direct
and unavoidable impact, based on objective, identified
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written public health or safety standards, policies, or
conditions as they existed on the date that the ordinance
is adopted by the legislative body;
b) The interim ordinance is necessary to mitigate or avoid
the specific, adverse impact identified in 8a), above; and,
c) There is no feasible alternative to satisfactorily
mitigate or avoid the specific, adverse impact identified,
pursuant to 8a), above.
9)Requires the legislative body to issue a written report
describing the measures taken to alleviate the condition which
led to the adoption of the ordinance 10 days prior to the
expiration of that interim ordinance or any extension.
10)Specifies that "development of multifamily housing projects"
does not include the demolition, conversion, redevelopment, or
rehabilitation of multifamily housing that is affordable to
lower-income households, as defined, or that will result in an
increase in the price or reduction of the number of affordable
units in a multifamily housing project.
11)Defines "projects with a significant component of multifamily
housing" to mean projects in which multifamily housing
consists of at least one-third of the total square footage of
the project.
12)Enacts the Housing Accountability Act and applies its
provisions to charter cities.
FISCAL EFFECT: None
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COMMENTS:
1)Bill Summary. This bill specifies that an interim ordinance
adopted by a city or county shall not have the effect of
denying approvals needed for the development of projects with
a significant component of multifamily housing. This bill
also deletes provisions in current law that allow a city or
county to adopt an interim ordinance that has the effect of
denying approvals needed for the development of projects with
a significant component of multifamily housing, and deletes
provisions in existing law that specify that certain findings
need to be made by a city or county, supported by substantial
evidence on the record.
This bill makes findings that addressing rising home costs,
monthly rent costs, and housing inventory within the state,
including the development of multifamily housing to alleviate
housing need, is a matter of statewide concern and is not a
municipal affair, thereby applying the code section that
allows for cities and counties to adopt emergency and interim
ordinances (Section 65858 of the Government Code), as proposed
to be amended by the bill's provisions, to all cities,
including charter cities.
This bill is sponsored by the author.
2)Author's Statement. According to the author, "While many
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local governments are devoting large amounts of energy and
attention to the issue of increasing housing production, there
are others who been unable to do so - due to either a lack of
will by the local legislative body or by constituent groups
within those localities. In some areas, attempts have even
been made to block future housing developments of various
kinds.
"A recent article in the Los Angeles Times noted that "in some
ways, state lawmakers' hands are tied on boosting housing
supply because cities and counties primarily control building
and permitting." AB 2557 attempts to loosen those binds on
legislators some by establishing a statewide concern for the
development of housing. In doing so, the measure will limit
the abilities of those at the local level to implement
development moratoriums or to further stymie statewide efforts
to lift Californians out of poverty and into better
socio-economic circumstances."
3)Moratorium Ordinances. Government Code Section 65858 allows a
city or county to adopt an interim ordinance to temporarily
prohibit certain land uses in the community. These ordinances
are commonly referred to as "moratorium ordinances" and allow
a local agency the time to study the potential impact of
particular activities to figure out how these activities
should be regulated.
A local agency can adopt an urgency ordinance without
following the usual process that it would use to amend its
municipal code, which requires two approvals called
"readings," by the city council or board of supervisors and a
30-day delay between the second reading and the effective date
of the new law. An urgency ordinance can instead be passed
without advance notice to the public and can take effect
immediately. In order to pass an urgency ordinance,
Government Code 65858 requires a four-fifths vote of the
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legislative body.
An urgency ordinance may remain in effect for only 45 days,
unless it is extended by another four-fifths vote. To extend
the ordinance, the local agency must provide notice and have a
public hearing, at which point the legislative body can vote
to extend the ordinance for either ten months and 15 days,
with the option of an additional one-year extension, or 22
months and 15 days. This would bring the full duration of the
ordinance to two years, with the required four-fifths vote of
the local legislative body.
This section of law prohibits the legislative body from
adopting or extending any interim ordinance, unless the
ordinance contains legislative findings that there is a
current and immediate threat to the public health, safety, or
welfare, and that the approval of additional subdivisions, use
permits, variances, building permits, or any other applicable
entitlement for use, which is required in order to comply with
a zoning ordinance, would result in that threat to public
health, safety or welfare.
Multifamily Housing. Any interim ordinance adopted that has
the effect of denying approvals needed for the development of
projects with a significant component of multifamily housing
may not be extended, except upon written findings adopted by
the legislative body, supported by substantial evidence on the
record, that all of the following conditions exist:
a) The continued approval of the development of multifamily
housing projects would have a specific adverse impact upon
the public health or safety. As used in this paragraph, a
"specific, adverse impact" means a significant,
quantifiable, direct, and unavoidable impact, based on
objective, identified written public health or safety
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standards, policies, or conditions as they existed on the
date that the ordinance is adopted by the legislative body;
b) The interim ordinance is necessary to mitigate or avoid
the specific, adverse impact identified, pursuant to a),
above; and,
c) There is no feasible alternative to satisfactorily
mitigate or avoid the specific, adverse impact identified,
pursuant to a), above, as well or better, with a less
burdensome or restrictive effect, than the adoption of the
proposed interim ordinance.
Existing law also requires, 10 days prior to the expiration of
that interim ordinance or any extension, the legislative body
to issue a written report describing the measures taken to
alleviate the condition which led to the adoption of the
ordinance.
4)Housing Accountability Act. In 1982, the Legislature enacted
"Anti-Nimby" legislation, which was officially re-named the
"Housing Accountability Act" by legislation that passed in
2006. The Housing Accountability Act restricts a city's
ability to disapprove, or require density reductions in,
certain types of residential projects. Under this section of
law, a city may not disapprove a housing development project
affordable to very low-, low-, or moderate-income households,
or emergency shelters, or condition approval of such a project
in a manner that makes the project infeasible, unless it
finds, based on substantial evidence, one of the following:
a) The city has adopted a housing element that has been
revised in accordance with existing law, is in substantial
compliance with the Housing Element law, and the city has
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met or exceeded its share of the regional housing need for
the income category proposed for the housing development
projects;
b) The project as proposed would have a specific adverse
impact upon the public health and safety that cannot be
satisfactorily mitigated without rending the housing
development project unaffordable, or development of the
emergency shelter financially infeasible; inconsistency
with the zoning ordinance or general plan land use
designation shall not constitute a specific, adverse impact
upon public health and safety;
c) The denial of the project or imposition of conditions is
required in order to comply with state or federal law, and
there is no feasible method to comply without rendering the
housing development project unaffordable or development of
the emergency shelter financially infeasible;
d) The project is on land zoned for agriculture or resource
preservation that is surrounded on at least two sides by
land being used for agriculture or preservation purposes,
or the site does not have an adequate water or wastewater
facility to serve the project; or,
e) The project is inconsistent with both the city's zoning
ordinance and general plan land use designation as
specified in the general plan as it existed on the date the
application was deemed complete, and the city has adopted a
revised housing element in accordance with existing law, as
specified.
5)Policy Considerations. The Committee may wish to consider the
following:
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a) Applicability of Emergency Ordinance Code Section to
Charter Cities. This bill finds and declares that
"addressing rising home costs, monthly rent costs, and
housing inventory within the state, including the
development of multifamily housing to alleviate housing
need is a matter of statewide concern and is not a
municipal affair," thereby applying the code section that
allows for cities and counties to adopt emergency and
interim ordinances (Section 65858 of the Government Code),
as proposed to be amended by the bill's provisions to all
cities, including charter cities.
The Committee may wish to consider the precedent of
applying one part of this code section to charter cities,
and whether this creates a slippery slope.
b) Emergency Ordinance Statute as Valuable Local Planning
Tool. This section of law enables a local government that
is being overwhelmed with growth or facing some specific
planning issue which is not adequately addressed in its
existing general plan to take a brief break and ensure that
its existing plans are up to date. In addition, an interim
ordinance allows a local government to put off a decision
on a specific project that may be in conflict with a plan
or zoning change that the jurisdiction is studying or
considering.
The Committee may wish to consider the impact of
prohibiting the legislative body of a city or county from
adopting an interim ordinance that does have the effect of
denying approvals needed for the development of projects
with a significant component of multifamily housing - there
may be unintended consequences and in some instances, there
may be very good reasons that a local agency is adopting an
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emergency ordinance or moratorium.
6)Committee Amendments. The Committee may wish to consider the
following amendments, which would address some of the policy
considerations raised previously.
Strike existing contents of the bill, and instead, add a new
section, as follows:
65858.5 (a) Notwithstanding Section 65858, any local measure,
implemented through an interim ordinance, that takes effect
before January 1, 2020, shall not have the effect of denying
approvals needed for the development of projects with a
significant component of multifamily housing.
(b) For purposes of this section, "projects with a significant
component of multifamily housing" means projects in which
multifamily housing consists of at least one-third of the
total square footage of the project.
(c) The Legislature finds and declares that addressing rising
home costs, monthly rent costs, and housing inventory within
the state, including the development of multifamily housing to
alleviate housing need, is a matter of statewide concern and
is not a municipal affair as that term is used in Section 5 of
Article XI of the California Constitution. Therefore, Section
65858.5 shall apply to all cities, including charter cities.
7)Arguments in Support. Supporters argue that the bill would
limit the ability of local development moratoria to delay or
halt the approval of multifamily housing - housing that is
critical for addressing the housing shortage, and in
particular, low-income housing.
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8)Arguments in Opposition. According to the League of
California Cities, "A city may adopt by vote an interim zoning
ordinance prohibiting certain uses which may be in conflict
with a contemplated change in the general plan, specific plan
or zoning ordinance. If a city is studying a policy change,
it should not be forced to approve a use that will conflict
with the new policy.
"Under the Housing Accountability Act, if a project is
consistent with the zoning and general plan, it must be
approved unless the city can make findings that the project
will have a specific, adverse impact upon the public health or
safety. This standard is recognized as an important
regulatory protection for the future residents of the housing.
If a city is able to demonstrate - based upon substantial
evidence - that the project would have a specific adverse
impact upon the public health or safety that cannot be
mitigated or avoided except by the extension of the interim
ordinance, a city should be able to extend an interim
ordinance.
"Finally, planning and zoning law does not apply to charter
cities, with very few exceptions. This bill would represent
an intrusion to their home rule authority."
9)Double-Referral. This bill is double-referred to the Housing
and Community Development Committee.
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REGISTERED SUPPORT / OPPOSITION:
Support
City of Los Angeles
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California Building Industry Association
California Apartment Association
Cal Chamber
California Association of Realtors
California Business Properties Association
Opposition
League of California Cities
Analysis Prepared by:Debbie Michel / L. GOV. / (916) 319-3958