BILL ANALYSIS
SB 948 04/05/99 Page
SENATE HOUSING & COMMUNITY DEVELOPMENT COMMITTEE
Senator Richard Alarcon, Chairman
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|BILL NO:SB 948 |HEARING: 4/5/99 |
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|AUTHOR: Alarcon |FISCAL:Appropriations |
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|VERSION: 4/5/99 |CONSULTANT: Stivers |
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SB 948 04/05/99 Page
AFFORDABLE HOUSING
Background, Existing Law, and Proposed Law
This bill contains four distinct elements:
I. Housing element challenges . Each city and county must
prepare and adopt a general plan to guide the future growth
of the community. Every general plan must contain seven
elements: land use, circulation, housing, conservation,
open-space, noise, and safety. A housing element must
identify the community's housing needs and programs to
satisfy these needs. After adoption, a city or county must
submit the housing element to the Department of Housing and
Community Development (HCD) for review. HCD must review
and report its findings to the city or county.
After a city or county adopts its housing element, any
party may challenge the document's adequacy in either of
two ways:
The party must provide the jurisdiction with a notice
citing the deficiencies in the housing element and give
the jurisdiction 60 days to correct the deficiencies.
After the 60 days expire, the party has one year to file
suit.
The party must file suit within 60 days of the date HCD
makes its findings public.
While these two provisions were originally intended to be
separate remedies for challenging inadequate housing
elements, recent court decisions have ruled them to be in
conflict. In one case, Vineyard Garden Associates v. City
of Oxnard (1998), the court ruled that the more general
first provision allowing a challenge any time after a 60
day notice to the jurisdiction was rendered moot by the
more specific second provision which sets a statute of
limitations 60 days after HCD made its findings public.
Senate Bill 948 clarifies that a party challenging the
adequacy of a housing element may file suit within 60 days
of HCD's review or after providing the jurisdiction 60 days
to correct the cited deficiencies.
I. 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
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affordable housing project:
The city of county has adopted a housing element, 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;
The project is located on agricultural or resource
preservation land or land that does not have adequate
water or waste water facilities; or
The project is inconsistent with the general plan.
Housing advocates argue that these conditions still provide
a city or county that is averse to affordable housing with
ample opportunity to deny needed affordable housing
projects.
Senate Bill 948 tightens up the findings that a city or
county must make in order to deny an affordable housing
project as follows:
In order to find that the housing is not needed, a city
or county's housing element must be in compliance with
state law, and the city or county must have met its fair
share housing obligations for lower- and moderate-income
housing.
In order to find an over concentration, the project must
be in a neighborhood that has a disproportionate share of
very low-income housing projects.
The project must be inconsistent with the general plan
and the zoning ordinance.
This bill further defines what is means to "disapprove the
project" and requires the court to order the local
government to approve all applications within 90 days if
the court deems the findings to be inadequate or
unsupported.
III. Density bonuses . Through local zoning ordinances,
cities and counties regulate the density of residential
development. When a housing developer proposes a
lower-income housing project, state law requires the local
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government to offer the developer a density bonus of at
least 25% or other specified incentives or concessions.
Because of the size, configuration, or other physical
characteristics of the site, sometimes developers find it
difficult or impossible to provide 25% more units.
Builders want the flexibility to accept less of a density
bonus when conditions warrant.
Senate Bill 948 clarifies existing law such that a
developer may opt to accept less than the 25% density bonus
offered by the jurisdiction if he or she chooses. SB 948
further requires the local government to grant the density
bonus without approval of a general plan amendment, zoning
change, conditional use permit or other planning decision.
IV. Ellis Act . Local zoning ordinances regulate
residential land use and densities. Within residentially
zoned property, ordinances specify the type of residential
use: single family, duplexes, condominiums, apartments,
residential hotels and other forms of residential housing.
Property owners must comply with the residential uses
permitted by the zoning ordinance.
If an owner of rental property want to change the use of
the property, he or she may have to displace tenants to do
so. Under the Ellis Act, no public entity may compel the
owner of any rental property to stay in business.
However, the Act does allow the city or county to regulate
the subsequent use of the property once it has been
vacated.
Housing advocates believe that recent court decisions have
undermined the balance struck under the Ellis Act between
the rights of rental property owners and the rights of
local governments to regulate the subsequent use of the
property once the property has been taken off the market.
Senate Bill 948 expresses legislative intent to reaffirm
the right of an owner to withdraw residential property from
rent or lease, and to reaffirm the right of a local agency
to impose reasonable conditions on the subsequent use of
residential property once the property has been withdrawn
from rent or lease.
Comments
1. Meeting affordable housing needs . State officials
estimate that there is a demand for 250,000 new housing
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units each year in California, but fewer than 130,000 were
built last year. Many economists agree that inadequate
housing production poses a major long-run threat to the
state's economic growth. According to the author, SB 948
will increase the development of affordable housing by
reducing barriers at the local level.
2. Anti-NIMBY law. In spite of requirements that a local
government make specific findings in order to deny an
affordable housing project, 22% of the non-profit housing
developers responding to a recent survey ranked community
opposition to affordable housing (known as NIMBY for "Not
In My Back Yard") as the number one barrier to affordable
housing development. The average delay to the affected
projects was 11.9 months, and the additional costs incurred
averaged $100,000. The author believes SB 948 will broaden
the protections of the Anti-NIMBY law while preserving
public access to the decision-making process.
Is the need for affordable housing sufficiently acute to
further restrict the ability of local governments to deny
specific housing projects? If so, would it be more
effective to require local governments to make more than
one of the specified findings before denying a housing
project?
3. Density bonuses . In 1997, the Burbank Housing
Development Corporation applied to the city of Santa Rosa
to build an affordable housing project and wanted to use
the state's density bonus law to increase density above the
allowable zoning. Santa Rosa initially required the
developer to build 25% more units than the general plan
allowed, even though the developer wanted to use a lesser
density bonus. The city also required the developer to
rezone the property.
The Department of Housing and Community Development
strongly disagreed with Santa Rosa's interpretation of
state law and asked the city to reconsider its view. HCD
argued that no rezoning was required, stating that the
density bonus law "imposes what amounts to a statewide
overlay zone increasing potential densities on all land
zoned for residential development in California by 25
percent." HCD also said that a request for any number of
units over the applicable zoning is allowed under the law.
SB 948 clarifies the density bonus requirements so as to
prevent future misinterpretations.
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4. Ellis Act. Since the Ellis Act was adopted in 1986, a
string of court decisions has undermined the compromise
reached in Ellis between the rights of a property owner to
remove rental units from the market and the ability of a
local government to mitigate the effects of tenant
displacement and to regulate the subsequent use of the
property. The Courts of Appeal in Javidzad v. City of
Santa Monica (1988), Bullock v. San Francisco (1990), First
Presbyterian Church v. City of Berkeley (1997), and Los
Angeles Lincoln Place Investors, Ltd. v. City of Los
Angeles (1997) have barred enforcement of local land use
ordinances that govern the conversion of residential hotels
to tourist use and the demolition of residential buildings
on the grounds that such ordinances interfere with an
owner's right under the Ellis Act to go out of business.
Housing advocates argue that as a result of this case law,
cities have been increasingly at a loss to preserve
affordable rental housing units.
At the request of Senators Burton and Alarcon, interested
parties have been meeting to develop a consensus approach
to revise the Ellis Act. The working group has not yet
been able to reach an agreement on amendments, but all
parties agree to move SB 948 with the current intent
language.
5. Housing element challenges . Housing advocates argue
that recent conflicting court rulings need to be clarified
so that there is certainty over how to challenge a housing
element that is inadequate to meet the city or county's
needs for affordable housing.
6. Related Legislation . Other bills relating to the
Anti-NIMBY law and the Ellis Act have been introduced:
AB 919 (Dutra) would revise the Anti-NIMBY statute so
that a local government must meet not one but three of
the specified conditions in order to deny or
conditionally approve an affordable housing development.
AB 919 was referred to the Assembly Housing and Community
Development Committee but has not been set for hearing.
SB 1106 (Hayden) would, among other things, amend the
Ellis Act to provide that it does not prevent local
governments from regulating demolitions, condominium
conversions, or compliance with housing codes that
adversely affect the preservation and sustainability of
affordable housing in their communities. SB 1106 is
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scheduled to be heard in the Senate Housing and Community
Development Committee on April 5. 1999.
Support and Opposition (3/29/)
Support : A Community of Friends
Advocates for Affordable Housing in Mountain View
and Los Altos
AFL-CIO Housing Investment Trust
ASIAN Incorporated
Association of Homeless and Housing Service
Providers of Contra Costa Co.
Bonita House, Inc.
Bowman Grove Community Service Planning
BSA (Barbara Sanders)
Burbank Housing Development Corporation
Cabrillo Economic Development Corporation
Caduceus Outreach Sevices
California Legislative Council for Older Americans
California Food Policy Advocates
California Church Impact
California Immigrant Welfare Collabarative
California Rural Legal Assistance Foundation
Catholic Charities of the Diocese of Santa Rosa
Central Valley Coalition For Affordable Housing
CHDC (Nancy Cook)
Chico City Council
Chinatown Community Development Center
Christian Church Homes
City of East Palo Alto, Rent Stablization Program
City of Monterey
City of Salinas
City of Carlsbad - Housing & Redevelopment
Department
City of Chico/ Homeless Task Force
Civic Center Barrio Housing Corporation
Coachella Valley Housing Coalition
Community Housing Development Corporation of Santa
Rosa
Community Economics, Inc.
Community Housing
Congress of California Seniors
Corporation for Supportive Hosuing
Council of Churches of Santa Clara County
E.M. Schaffran and Company
EAH
Eden Housing, Inc.
EPA Can Do
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Esperanza Community Housing Corporation
Fair Housing Council
First Community Housing
Friends Committee on Legislation of California
Friends of the Homeless
Golden State Mobilehome Owners League
Graphic Communications Union Retirees
Gubb & Bashaly LLP, Attorneys and Partners
Home Base
Homeless Prenatal Program
Homes for Life Foundation
Housing for Independent People, Inc.
Housing Authority of the City of Santa Barbara
Housing Rights, Inc.
Housing Consortium of the East Bay
Human Assistance, Inc.
ICF Consulting Group
IFSN
Justice Office, Srs. Of St. Joseph
Lauterbach and Associates Architects
Legal Aid Foundation of Santa Barbara
MACSA, Inc.
Marin City Community Development Corporation
Marin Housing Council
Marin Continum of Housing and Services
Mary Erickson Community Housing
Mayor Willie Brown, City and County of San
Francisco
Mayor Joe Serna, City of Sacramento
Mental Health Association of San Francisco
Mercy Charities Housing California
Mid Peninsula Housing Coalition
Napa Valley Community Housing
National Lawyers Guild
Nevada County Housing and Community Services
Non-Profit Housing Association of Northern
California
Oakland Community Housing, Inc.
Oakland Community Housing Management, Inc.
OC Homeless Issues Task Force
Pajaro Valley Housing Corporation
People's Self-Help Housing Corporation
Planning and Redevelopment, City of Redwood City
Plowhares Peace and Justice Center
Public Law Center
RCHC (Stan Keasling)
Religious Wellness with Homeless People
Renee Franken and Associates, Inc.
Resources for Community Development
SB 948 04/05/99 Page
Rubicon Programs, Inc.
Rural California Housing Corporation
Saben Investments, Inc.
Sacramento Mutual Housing Association
SAMCO (Barbara Richards)
San Francisco Department of Pubic Health
San Francisco DPH - Housing Services
San Joaquin Fair Housing
San Joaquin County Housing Authority
Santa Clara County
Santa Monicans for Renter's Rights
Self-Help Enterprises
Senior Housing Action Collaborative (SHAC)
Sentinel Fair Housing
Shelter, Inc.
Shelter Partnership, Inc.
Sisters of St. Joseph of Carondelet
Sisters of Norte Dame de Namur of California
Skid Row Housing Trust
Sober Living Network
Socialization Thru Empowering Peers (STEP)
Society of St. Vincent de Paul, Council of L.A.
South County Housing
Southern California Association of Non-profit
Housing
SRO Housing Corporation
St. Joseph Health System
Tenderloin Neighborhood Development Corporation
Tenderloin Housing Clinic
Thai Community Development Center
The Public Interest Law Project
The Agora Group
The Jordan Apartments/JSCO
Thomas Lauderbach
Transitional Living and Community Support
Venice Community Housing Corporation
West Side Fair Housing Council
West Sacramento Housing Development Corporation
West Contra Costa Conservation League
Western Center on Law and Poverty
WNC & Associates, Inc.
Opposition : None
received