BILL ANALYSIS
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|SENATE RULES COMMITTEE | SB 948|
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THIRD READING
Bill No: SB 948
Author: Alarcon (D)
Amended: 4/5/99
Vote: 21
SENATE HOUSING & COMM. DEVELOP. COMMITTEE : 5-0, 4/5/99
AYES: Alarcon, Bowen, Costa, Monteith, Vasconcellos
NOT VOTING: Escutia, Johannessen
SENATE APPROPRIATIONS COMMITTEE : Senate Rule 28.8
SUBJECT : Affordable housing developments
SOURCE : Author
DIGEST: This bill amends existing planning and zoning
law to make necessary clarifications and more specific
requirements regarding housing developments affordable to
very low, low- and moderate-income households. It makes
changes to (a) state housing element law, (b) anti-NIMBY
law, (c) density bonus law, and (d) the law governing
demolitions and conversions of housing.
ANALYSIS : 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
CONTINUED
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satisfy these needs. After adoption, a city or county must
submit the housing element to the State 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:
A.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.
B.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.
This bill 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.
II. 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:
A.The city or 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;
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B.The project would have an adverse impact to the public
health or safety and there is no way to mitigate or avoid
adverse impacts;
C.The denial is required to comply with state or federal
law;
D.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;
E.The project is located on agricultural or resource
preservation land or land that does not have adequate
water or waste water facilities; or
F.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.
This bill tightens up the findings that a city or county
must make in order to deny an affordable housing project as
follows:
A.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.
B.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.
C.The project must be inconsistent with the general plan
and the zoning ordinance.
This bill further defines what it 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
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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
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.
This bill 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. This bill 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 wants 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.
This bill expresses legislative intent to reaffirm the
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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
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, this bill 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 this
bill will broaden the protections of the Anti-NIMBY law
while preserving public access to the decision-making
process.
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.
HCD 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
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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.
This bill clarifies the density bonus requirements so as
to prevent future misinterpretations.
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 this bill 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:
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A. 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.
B. 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 scheduled to be heard in the
Senate Housing and Community Development Committee.
FISCAL EFFECT : Appropriation: No Fiscal Com.: Yes
Local: Yes
SUPPORT : (Verified 4/20/99)
American Planning Association
Bank of America
California Building Industry Association
City of Los Angeles
JERICHO
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 County
Bonita House, Inc.
Bowman Grove Community Service Planning
BSA (Barbara Sanders)
Burbank Housing Development Corporation
Cabrillo Economic Development Corporation
Caduceus Outreach Services
California Legislative Council for Older Americans
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California Food Policy Advocates
California Church Impact
California Immigrant Welfare Collaborative
California Rural Legal Assistance Foundation
Catholic Charities of the Diocese of Santa Rosa
Central Valley Coalition For Affordable Housing
CHDC (Nancy Cook)
Chinatown Community Development Center
Christian Church Homes
City of East Palo Alto, Rent Stabilization Program
City of Monterey
City of Carlsbad - Housing & Redevelopment Department
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 Housing
Council of Churches of Santa Clara County
E. M. Schaffran and Company
EAH
Eden Housing, Inc.
EPA Can Do
Esperanza Community Housing Corporation
Fair Housing Council
First Community Housing
Friends Committee on Legislation of California
Friends of the Homeless
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
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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
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 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
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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.
NC:cm 4/22/99 Senate Floor Analyses
SUPPORT/OPPOSITION: SEE ABOVE
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