BILL ANALYSIS                                                                                                                                                                                                    



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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