BILL ANALYSIS
SENATE HOUSING & COMMUNITY DEVELOPMENT COMMITTEE
Senator Denise Moreno Ducheny, Chair
Bill No: AB 2348Hearing:June
21, 2004
Author: MullinFiscal:Yes
Version: June 16,
2004Consultant: Mark Stivers
PLANNING AND APPROVAL OF AFFORDABLE HOUSING
Background and Existing Law :
Housing element law : The Planning and Zoning Law requires
cities and counties to prepare and adopt a general plan to
guide the future growth of a community. Every general plan
must contain seven elements: land use, circulation,
housing, conservation, open-space, noise, and safety. A
housing element must 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.
In order to identify adequate sites to meet its housing
needs, a community must conduct an inventory of land that
allows for new residential development or refill
development at higher densities. To the extent that the
inventory does not demonstrate enough capacity to meet the
community's fair share of the regional housing need (RHNA),
the community must adopt a program to provide appropriately
zoned sites early enough in the planning period to allow
for development of the sites. Frequently, this program
requires a commitment to rezone specific sites for
higher-density residential development by a specific date.
Any sites that must be rezoned to meet the RHNA must permit
development by right, which is defined as not requiring a
conditional use permit.
Under current law, a community may substitute up to 25% of
its RHNA requirement with an express commitment in the
housing element that affordable low and very-low income
housing units will be provided through the substantial
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rehabilitation of units at imminent risk of loss to the
housing stock, through the purchase of affordability
covenants that constitute a net increase in affordable
housing, and through the preservation of at-risk affordable
housing developments. With respect to counting
substantially rehabilitated units, the units must
previously have been vacant or subject to being vacant for
at least 120 days due to the existence of extensive code
violations.
Anti-NIMBY law : Before proceeding with the construction or
rehabilitation of a housing project, a developer must
submit development plans to the city or county for
approval. Under state law, a city or county must make one
of the following findings before denying an affordable
housing project:
The city or county has adopted a housing element in
substantial compliance with the law, and the project is
not needed to meet the jurisdiction's share of regional
housing needs for lower-income households;
The project would have an adverse impact to the public
health or safety and there is no way to mitigate or avoid
adverse impacts;
The denial is required to comply with state or federal
law;
Approval of the project would increase the concentration
of lower-income households in a neighborhood that already
has a disproportionately high number of lower-income
households, and there is no feasible method of approving
the development at a different site;
The project is located on agricultural or resource
preservation land or land that does not have adequate
water or waste water facilities; or
The jurisdiction has adopted a housing element, and the
project is inconsistent with the general plan and the
zoning ordinance.
Density bonus law . Existing law also requires a city or
county to grant a density bonus and at least one other
specified incentive, or other housing incentives of
equivalent value, to a developer who agrees to construct an
affordable housing development of five or more units unless
the local government makes a finding that the bonus and
incentives are not needed to achieve affordability. The
density bonus must be at least 25% over the existing
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maximum density for the site. The incentives the local
government may offer include:
A reduction in site development standards;
A modification of zoning code requirements (including a
reduction in setbacks, square footage requirements, or
parking spaces, or architectural design requirements that
exceed the minimum building standards);
Approval of mixed use zoning in conjunction with the
housing project if commercial, office, industrial, or
other land uses will reduce the cost of the housing
development, and if such nonresidential uses are
compatible with the project; or
Other regulatory incentives or concessions proposed by
the developer or the city or county that result in
identifiable cost reductions.
Proposed Law :
Assembly Bill 2348 makes a number of changes to laws
pertaining to the planning and development of affordable
housing, including housing element law, the anti-NIMBY
statute, and density bonus law. Specifically, the bill:
Housing element adequate site requirement
Requires the land inventory to include 1) a listing of
properties by parcel number; 2) the size, general plan
designation and zoning of each property; 3) for
redevelopment sites, a description of existing uses for
the properties and an explanation of the methodology for
determining additional development capacity; 4) a general
description of infrastructure supply and environmental
constraints in the community; 5) a map showing location
of the sites; and 6) an analysis of the number of units
that can be accommodated on the sites, based on the
zoning as adjusted to accommodate required development
standards.
Establishes "rule of thumb" guidelines for determining
the densities that will accommodate lower income housing.
These guidelines vary in accordance with a community's
classification as a metropolitan, suburban, or
nonmetropolitan.
Clarifies that the housing element program must commit to
rezone sites to make up any difference between the RHNA
and sites identified in the inventory.
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Redefines "use by right," which is required for all sites
to be rezoned for lower income housing under the housing
element program, to mean that the use shall not require a
conditional use permit or other local government review
or approval which constitutes a project for purposes of
CEQA. The use may be subject to design review which
shall not constitute a project for purposes of CEQA.
Sites subject to the by right requirement shall meet
minimum density standards, and only half may allow
non-residential uses.
Counting rehabilitated and acquisition units towards the
RHNA .
With respect to counting rehabilitated units towards
meeting a community's RHNA obligation, removes the
requirement that the units be vacant or subject to being
vacated prior to rehabilitation and allows the community
to provide required relocation benefits outside of the
Relocation Assistance Law if the benefits equal at least
four months rent and moving expenses and comparable
replacement housing.
With respect to counting units newly made affordable with
affordability covenants towards its RHNA obligation,
allows units in developments of four or more units, as
opposed to 16 or more, to qualify, repeals the
requirement that the acquisition price be less than 120%
of the median housing price for the community, and
increase the term of the required affordability covenants
from 30 to 55 years.
Anti-NIMBY law
Provides that zoning inconsistency cannot be used to deny
or condition a development if the reason for the
inconsistency is the jurisdiction's failure to conform
the zoning and land use designation to the housing
element.
Removes overconcentration as a reason for developments to
be denied or conditioned.
Provides that a local government may apply objective,
quantifiable, written, development standards so long as
they accommodate development at the allowed densities and
are consistent with meeting the jurisdiction's housing
need.
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Density bonus law
At the request of the applicant, limits parking
requirements for density bonus developments to a
specified number of spaces per unit and allows the spaces
to be provided through tandem or uncovered parking.
Allows a developer to seek further parking reductions as
one of the incentives or concessions required under
density bonus law.
Comments :
1. Purpose of the bill . Developers of affordable housing
often cite the lack of adequately zoned sites and the
uncertainty of the land use entitlement process as two of
the major barriers to the development of new housing.
While housing element law requires communities to identify
adequate sites to accommodate their fair share of the
regional housing needs, the information in the element
often is too general to identify specific sites and fails
to account for serious constraints to development such as
lack of infrastructure capacity and existing uses of the
sites. Moreover, when developments are proposed for
specific sites, unrealistic development standards, such as
excessive parking requirements, and community opposition
can often derail the project. This bill is intended to
facilitate the development of affordable housing by making
planning more meaningful, limiting excessive parking
requirements for density bonus developments, and
strengthening protections against arbitrary project
denials.
2. A collaborative process . This bill and AB 2158
(Lowenthal) were developed as a consensus package by the
Housing Element Working Group that was convened over the
last year by HCD. Because these bills are a package but
appeal to different constituencies within the working
group, it may be prudent to make them contingent upon each
other to ensure that their fates are linked. The committee
may wish to consider an amendment to make enactment of this
bill contingent upon enactment of AB 2348.
3. Technical and chaptering amendments . In order to help
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resolve chaptering conflicts with AB 2702 (Steinberg) and
correct a typographical error, the following amendments are
suggested:
In 65583.2(a) strike "655583" and insert "65583"
In 65583.2(i) after "conditional use permit" insert ",
planned unit development permit"
Related Legislation :
AB 2158 (Lowenthal) significantly revises the regional
housing needs assessment process under housing element law.
This bill will be heard in the Housing Committee on June
21.
AB 2702 (Steinberg), among other things, amends the
definition of "by right" development required for sites to
be rezoned under the housing element program. This bill
will be heard in the Housing Committee on June 21.
Previous Actions :
Assembly Floor: 78-0
Assembly Appropriations: 21-0
Assembly Housing and Community Development: 8-0
Assembly Local Government: 9-0
Support and Opposition : (6/16/04)
Support : Housing California
Opposition : none received