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AB-1279 Planning and zoning: housing development: high-opportunity areas.(2019-2020)

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Date Published: 07/22/2020 09:00 PM
AB1279:v97#DOCUMENT

Amended  IN  Senate  July 22, 2020
Amended  IN  Senate  April 24, 2020

CALIFORNIA LEGISLATURE— 2019–2020 REGULAR SESSION

Assembly Bill
No. 1279

Introduced by Assembly Member Bloom

February 21, 2019

An act to add Section 65913.6.5 to the Government Code, relating to housing.


LEGISLATIVE COUNSEL'S DIGEST


AB 1279, as amended, Bloom. Planning and zoning: housing development: high-opportunity areas.
The Planning and Zoning Law requires each county and city to adopt a comprehensive, long-term general plan for its physical development, and the development of certain lands outside its boundaries, that includes, among other mandatory elements, a housing element. That law allows a development proponent to submit an application for a development that is subject to a specified streamlined, ministerial approval process not subject to a conditional use permit if the development satisfies certain objective planning standards, including that the development is (1) located in a locality determined by the Department of Housing and Community Development to have not met its share of the regional housing needs for the reporting period, and (2) subject to a requirement mandating a minimum percentage of below-market rate housing, as provided.
This bill would require the department to designate areas in this state as high-opportunity areas, as provided, by January 1, 2022, in accordance with specified requirements and to update those designations within 6 months of the adoption of new Opportunity Maps by the California Tax Credit Allocation Committee. The bill would authorize a city or county to appeal the designation of an area within its jurisdiction as a high-opportunity area, as provided. In any area designated as a high-opportunity area, the bill would require that a residential development project be a use by right, local government review, upon the request of a developer, a residential development project as a use by right if the project meets specified requirements, including specified affordability requirements. For certain residential development projects where the initial sales price or initial rent exceeds the affordable housing cost or affordable rent to households with incomes equal to or less than specified percentages of the area median income, the bill would require the applicant to agree to pay a fee in an amount that would vary based on the size of the project and whether the units are ownership or rental units, as provided. The bill would require the city or county to deposit the fee into a separate fund reserved for the construction or preservation of housing with an affordable housing cost or affordable rent to households with a household income less than 50% of the area median income. The bill would provide that approval as a use by right of certain residential development projects under these provisions would expire after 2 years, unless the project receives a one-time, one-year extension, as provided.
This bill would require that the applicant agree to, and the city and county ensure, the continued affordability of rental units affordable to lower income and very low income households for 55 years and that the affordability of ownership units to the initial occupant of those units, as provided. The bill would provide that a residential development project is ineligible as a use by right under these provisions if, among other things, it is proposed to be located on a site that has rental housing that is currently occupied by tenants, or had rental housing occupied by tenants within the past 10 years, or is located in certain areas. The bill would require a local government to exercise due diligence in reviewing a proposed use by right and any related application pursuant to the bill’s provisions. The bill would prohibit a local government from reviewing or approving a residential development project as a use by right, or reviewing or approving a project extension, pursuant to its provisions on and after January 1, 2031. The bill would include findings that the changes proposed by this bill address a matter of statewide concern rather than a municipal affair and, therefore, apply to all cities, including charter cities.
The California Environmental Quality Act (CEQA) requires a lead agency, as defined, to prepare, or cause to be prepared, and certify the completion of, an environmental impact report on a project that it proposes to carry out or approve that may have a significant effect on the environment or to adopt a negative declaration if it finds that the project will not have that effect. CEQA does not apply to the ministerial approval of projects.
This bill, by requiring approval of certain residential development projects as a use by right, would expand the exemption for ministerial approval of projects under CEQA.
By adding to the duties of local planning officials with respect to approving certain development projects, this bill would impose a state-mandated local program.
The California Constitution requires the state to reimburse local agencies and school districts for certain costs mandated by the state. Statutory provisions establish procedures for making that reimbursement.
This bill would provide that no reimbursement is required by this act for a specified reason.
Vote: MAJORITY   Appropriation: NO   Fiscal Committee: YES   Local Program: YES  

The people of the State of California do enact as follows:


SECTION 1.

 Section 65913.6.5 is added to the Government Code, immediately following Section 65913.4 to read:

65913.6.5.
 (a) For purposes of this section:
(1) “Density increase” means the percentage increase in the total number of dwelling units in a residential development project as allowed under this section over the otherwise maximum allowable number of dwelling units under the applicable local zoning ordinances.
(2) “Department” means the Department of Housing and Community Development.
(3) “High-opportunity area” means an area that is designated by the department pursuant to subdivision (b).
(4) “Infill site” means a site in which at least 75 percent of the perimeter of the site adjoins parcels that are developed with urban uses. For the purposes of this section, parcels that are only separated by a street or highway shall be considered to be adjoined.
(5) “Local government” means a city, county, or city and county.

(5)

(6) “Residential development project” means a multifamily development project that includes two 2 or more more, but not more than 120, residential dwelling units. A residential development project may include nonresidential uses as long as two-thirds of the total square footage of the project is devoted to residential uses.

(6)

(7) (A) “Use by right” means that the local government’s review of the residential development project under this section may not require a conditional use permit, planned unit development permit, or other discretionary local government review or approval that would constitute a “project” for purposes of Division 13 (commencing with Section 21000) of the Public Resources Code. Any subdivision of the sites shall be subject to all laws, including, but not limited to, the local government ordinance implementing the Subdivision Map Act (Division 2 (commencing with Section 66410)).
(B) A local ordinance may provide that “use by right” does not exempt the residential development project from design review. However, that design review shall not constitute a “project” for purposes of Division 13 (commencing with Section 21000) of the Public Resources Code.
(b) (1) No later than January 1, 2022, the department shall designate areas in this state as high-opportunity areas in accordance with this subdivision. In designating areas of the state as high-opportunity areas, the department shall collaborate with academic experts and shall solicit input from members of the public and ensure participation from all economic segments of the community as well as members of those classes protected pursuant to Section 12955.
(A) The department shall consider any area designated as “highest resource” or “high resource” on the most recent Opportunity Maps adopted by the California Tax Credit Allocation Committee as a potential high-opportunity area.
(B) The department shall not designate a potential high-opportunity area as a high-opportunity area if either of the following conditions apply:
(i) The area is at risk of displacement of lower income households and households of color, or has seen significant displacement of lower income households and households of color within the 10 years preceding the designation of high-opportunity areas pursuant to this subdivision.
(ii) Low wage workers in the potential high-opportunity area do not have significantly longer commutes to work than other low wage workers within the region.
(C) In determining potential high-opportunity areas to be excluded from the designation of high-opportunity areas pursuant to this subdivision, the department shall seek input from community-based organizations with experience working with low-income communities and communities of color.
(D) The department shall update its designations of high-opportunity areas pursuant to this subdivision within six months of the adoption of new Opportunity Maps by the California Tax Credit Allocation Committee.
(2) (A) A city or county that includes within its jurisdictional boundaries an area designated as a high-opportunity area pursuant to this section may appeal to the department to remove that designation by submitting an appeal in a form and manner prescribed by the department.
(B) The department may remove the designation of an area designated as a high-opportunity area within a city or county that submits an appeal pursuant to subparagraph (A) if it finds, based on substantial evidence, that the city or county has adopted policies that meet the following requirements:
(i) The policies permit development of higher density housing in the high-opportunity area, in a manner substantially similar to subdivision (c), than were allowed under the city’s or county’s policies in effect at the time the area was designated as a high-resource area.
(ii) The policies are sufficient to accommodate a similar number of housing units within the area and at similar levels of affordability as would be allowed under subdivision (c).
(iii) The policies are consistent with the city’s or county’s obligation to affirmatively further fair housing pursuant to Section 8899.50.
(C) The department shall issue a final decision within 90 days of receiving the appeal.
(D) The decision of the department regarding an appeal pursuant to this paragraph shall be final.
(c) Notwithstanding any inconsistent provision of a city’s or county’s general plan, specific plan, zoning ordinance, or regulation, but subject to subdivision (i), upon the request of a developer to a local government, a local government shall review an application for a residential development project shall be as a use by right in any high-opportunity area designated pursuant to this section if the local government determines that the development satisfies any either of the following:
(1) The residential development project consists of no more than 50 residential units and has a height of no more than 40 feet, or the maximum height allowed under the applicable local zoning ordinances, whichever is greater, and all of the following apply:
(A) The residential development project is located on a site on which residential use is an allowable use.
(B) The residential development project is located on a site that is one-quarter acre in size or greater and is either adjacent to an arterial road or located within a central business district.
(C) The residential development project meets or exceeds the density standards described in subparagraph (B) of paragraph (3) of subdivision (c) of Section 65583.2.
(D) If the residential development project consists of 10 or fewer units, either of the following apply:
(i) The initial sales price or initial rent for units in the residential development project does not exceed the amount of affordable housing cost or affordable rent, as specified in Sections 50052.5 and 50053, respectively, of the Health and Safety Code, to households with a household income equal to or less than 100 percent of the area median income, as determined by the department pursuant to Section 50093 of the Health and Safety Code.
(ii) If the initial sales price or initial rent exceeds the limit specified in clause (i):
(I) For ownership units, the developer agrees to pay a fee to the county or city equal to 10 percent of the difference between the actual initial sales price and the sales price that would be affordable to a household making up to 100 percent of the area median income calculated as a four-person household paying no more than 30 percent of its income for housing costs.
(II) For rental units, the developer agrees to pay a fee to the county or city equal to two times the difference between the actual initial rent for the first 12 months of occupancy and the amount of rent that would be affordable to a household making up to 60 percent of the area median income, calculated as a four-person household paying no more than 30 percent of its income for housing costs.
(III) The city or county shall deposit any fee received pursuant to this subparagraph into a separate fund reserved for the construction or preservation of housing with an affordable housing cost or affordable rent, as specified in Sections 50052.5 and 50053, respectively, of the Health and Safety Code, to households with a household income less than 50 percent of the area median income, as determined by the department pursuant to Section 50093 of the Health and Safety Code.
(E) If the residential development project consists of more than 10 units, the residential development project complies with the following, as applicable:
(i) If the residential development project includes a density increase of up to 50 percent, the residential development project includes at least 5 percent of the units for extremely low income households, as defined in Section 50106 of the Health and Safety Code, and either 6 percent of the units for very low income households, as defined in Section 50105 of the Health and Safety Code, or 9 percent of the units for lower income households, as defined in Section 50079.5 of the Health and Safety Code.
(ii) If the residential development project includes a density increase of between 51 percent and 80 percent, the residential development project includes at least 5 percent of the units for extremely low income households, as defined in Section 50106 of the Health and Safety Code, and either 9 percent of the units for very low income households, as defined in Section 50105 of the Health and Safety Code, or 12 percent of the units for lower income households, as defined in Section 50079.5 of the Health and Safety Code.
(iii) If the residential development project includes a density increase of greater than 81 percent, the residential development project includes at least 5 percent of the units for extremely low income households, as defined in Section 50106 of the Health and Safety Code, and either 12 percent of the units for very low income households, as defined in Section 50105 of the Health and Safety Code, or 17 percent of the units for lower income households, as defined in Section 50079.5 of the Health and Safety Code.
(iv) If the city or county requires, as a condition of the development of residential units, that a residential development project include a certain percentage of units affordable to, and occupied by, households with incomes that do not exceed the limits for moderate income, lower income, very low income, or extremely low income households specified in Sections 50079.5, 50093, 50105, and 50106 of the Health and Safety Code, all of the following shall apply:
(I) The residential development project shall include the total percentage of affordable units required pursuant to clause (iii) or the local requirement, whichever is higher.
(II) The residential development project shall meet the deepest income targeting in either policy, including at least 5 percent of units affordable to extremely low income households and at least the minimum percentage of units affordable to very low income households required by the city or county, if any.
(III) If the total percentage of affordable units required by the city or county is higher than that required pursuant to clause (iii) and the local policy does not require the inclusion of units affordable to extremely low income households, then the 5 percent of units affordable to extremely low income households required pursuant to clause (iii) shall be subtracted from the percentage of units required by the city or county at the highest affordability level.
(IV) The residential development project shall comply with all other provisions of the local requirement intended to promote comparability between the affordable units and other units in the project and achieve fair housing goals, including, but not limited to, requirements for equitable distribution in the project, minimum unit size or bedroom count, and type or quality of appliances, fixtures, or finishes.
(F) The residential development project complies with all objective design standards of the city or county. However, the city or county shall not require the residential development project to comply with an objective design standard that would preclude the development from including up to 50 units or impose a maximum height limitation of less than 40 feet.
(G) A residential development project that is reviewed as a use by right pursuant to this paragraph shall be eligible for the applicable parking ratios specified in subdivision (p) of Section 65915.
(2) The residential development project consists of no more than 120 residential units and has a height of no more than 55 feet, or the maximum height allowed under the applicable local zoning ordinances, whichever is greater, and all of the following apply:
(A) The residential development project is located on a site that allows residential or commercial uses. If the development project is located on a site that does not allow residential uses, any rezoning required in conjunction with approval of the project shall not require any discretionary review or approval by the city or county that would constitute a “project” for purposes of Division 13 (commencing with Section 21000) of the Public Resources Code.
(B) The residential development project is located on a site that is one-half acre in size or greater and is either adjacent to an arterial road or located within a central business district.
(C) At least 25 percent of the units in the residential development project have an affordable housing cost or affordable rent, as specified in Sections 50052.5 and 50053, respectively, of the Health and Safety Code, to lower income households and at least 25 percent have an affordable housing cost or affordable rent to very low income households.
(D) The residential development project complies with all objective design standards of the city or county. However, the city or county shall not require the residential development project to comply with an objective design standard that would preclude the development from including up to 120 units or impose a maximum height limitation of less than 55 feet.
(E) The residential development project meets or exceeds the density standards described in subparagraph (B) of paragraph (3) of subdivision (c) of Section 65583.2.
(F) A residential development project that is reviewed as a use by right pursuant to this paragraph shall be eligible for a density bonus, provided that the total density increase does not exceed 80 percent, incentives or concessions, waivers or reductions of standards, and parking ratios pursuant to Section 65915.
(d) For purposes of subdivision (c), both of the following apply:

(3)

(1) (A) An applicant for a residential development project shall agree to, and the city or county shall ensure, the continued affordability of all extremely low, very low, and lower income rental units included pursuant to this subdivision (c) for at least 55 years. Rents shall be set at an affordable rent, as defined in Section 50053 of the Health and Safety Code.
(B) An applicant for a residential development project shall agree to, and the city or county shall ensure, that the initial occupant of all ownership units included pursuant to this subdivision are persons and families of extremely low, very low, or low income, as applicable, and that the units are offered at an affordable housing cost, as defined in Section 50052.5 of the Health and Safety Code. The city or county shall enforce an equity sharing agreement consistent with the requirements of Section 65915, unless it is in conflict with the requirements of another public funding source or law.

(4)

(2) Affordable housing requirements under this subdivision (c) shall be calculated as a percent of the total project. Any calculations resulting in a fraction shall be rounded up to the next whole number.

(d)

(e) A residential development project shall not be eligible for approval as a use by right pursuant to subdivision (c) if any of the following apply: apply at the time the developer submits an application for the project pursuant to this section:
(1) The residential development project is proposed to be located on a site that has rental housing that is currently occupied by tenants, or had rental housing occupied by tenants within the past 10 years, or on a site on which an owner of residential real property has exercised their rights under Chapter 12.75 (commencing with Section 7060) of Division 7 of Title 1 to withdraw accommodations from rent or lease within the past 15 years.
(2) The residential development project is proposed to be located on a site that is any of the following:
(A) A coastal zone, as defined in Division 20 (commencing with Section 30000) of the Public Resources Code.
(B) Either prime farmland or farmland of statewide importance, as defined pursuant to United States Department of Agriculture land inventory and monitoring criteria, as modified for California, and designated on the maps prepared by the Farmland Mapping and Monitoring Program of the Department of Conservation, or land zoned or designated for agricultural protection or preservation by a local ballot measure that was approved by the voters of that jurisdiction.
(C) Wetlands, as defined in the United States Fish and Wildlife Service Manual, Part 660 FW 2 (June 21, 1993).
(D) Within a very high fire hazard severity zone.
(E) A hazardous waste site that is listed pursuant to Section 65962.5 or a hazardous waste site designated by the Department of Toxic Substances Control pursuant to Section 25356 of the Health and Safety Code, unless the Department of Toxic Substances Control has cleared the site for residential use or residential mixed uses.
(F) Within a delineated earthquake fault zone as determined by the State Geologist in any official maps published by the State Geologist, unless the development complies with applicable seismic protection building code standards adopted by the California Building Standards Commission under the California Building Standards Law (Part 2.5 (commencing with Section 18901) of Division 13 of the Health and Safety Code), and by any local building department under Chapter 12.2 (commencing with Section 8875) of Division 1 of Title 2.
(G) Within a special flood hazard area subject to inundation by the 1 percent annual chance flood (100-year flood) as determined by the Federal Emergency Management Agency in any official maps published by the Federal Emergency Management Agency. If a development proponent is able to satisfy all applicable federal qualifying criteria in order to provide that the site satisfies this subparagraph and is otherwise eligible for streamlined approval under this section, a local government shall not deny the application on the basis that the development proponent did not comply with any additional permit requirement, standard, or action adopted by that local government that is applicable to that site. A development may be located on a site described in this subparagraph if either of the following are met:
(i) The site has been subject to a Letter of Map Revision prepared by the Federal Emergency Management Agency and issued to the local jurisdiction.
(ii) The site meets Federal Emergency Management Agency requirements necessary to meet minimum flood plain management criteria of the National Flood Insurance Program pursuant to Part 59 (commencing with Section 59.1) and Part 60 (commencing with Section 60.1) of Subchapter B of Chapter I of Title 44 of the Code of Federal Regulations.
(H) Within a regulatory floodway as determined by the Federal Emergency Management Agency in any official maps published by the Federal Emergency Management Agency, unless the development has received a no-rise certification in accordance with Section 60.3(d)(3) of Title 44 of the Code of Federal Regulations. If a development proponent is able to satisfy all applicable federal qualifying criteria in order to provide that the site satisfies this subparagraph and is otherwise eligible for streamlined approval under this section, a local government shall not deny the application on the basis that the development proponent did not comply with any additional permit requirement, standard, or action adopted by that local government that is applicable to that site.
(I) Lands identified for conservation in an adopted natural community conservation plan pursuant to the Natural Community Conservation Planning Act (Chapter 10 (commencing with Section 2800) of Division 3 of the Fish and Game Code), habitat conservation plan pursuant to the federal Endangered Species Act of 1973 (16 U.S.C. Sec. 1531 et seq.), or other adopted natural resource protection plan.
(J) Habitat for protected species identified as candidate, sensitive, or species of special status by state or federal agencies, fully protected species, or species protected by the federal Endangered Species Act of 1973 (16 U.S.C. Sec. 1531 et seq.), the California Endangered Species Act (Chapter 1.5 (commencing with Section 2050) of Division 3 of the Fish and Game Code), or the Native Plant Protection Act (Chapter 10 (commencing with Section 1900) of Division 2 of the Fish and Game Code).
(K) Lands under conservation easement.
(L) Lands that have been zoned and actively used for industrial or light industrial uses in any year within the past 10 years.
(3) The residential development project is proposed to be located on a site that is not an infill site.
(4) The residential development project would require the demolition of structure that was listed on a national, state, or local historic register before the submittal of the development application.

(e)

(f) This section shall not be construed to prevent a developer from submitting an application for a development permit in a high-opportunity area under the county’s or city’s general plan, specific plan, zoning ordinance, or regulation for a project that does not meet the criteria specified in subdivisions (c) and (d). to (e), inclusive.

(f)

(g) Any approval for a residential development project meeting the requirements of paragraph (1) or (2) of subdivision (c) this section shall expire after two years, except that a project may receive a one-time, one-year extension extension, subject to subdivision (i), if the development proponent provides documentation that there has been significant progress toward getting the development construction ready, including, but not limited to, filing a building permit application.
(h) A local government subject to this section shall exercise due diligence in reviewing a use by right proposed, and any related application submitted, pursuant to this section.
(i) A local government shall not review or approve a project extension, as described in subdivision (g), or a residential development project as a use by right pursuant to this section on and after January 1, 2031.

(g)

(j) The Legislature finds and declares that ensuring residential development at greater density in high-opportunity areas of this state 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, this section applies to all cities, including charter cities.

SEC. 2.

 No reimbursement is required by this act pursuant to Section 6 of Article XIII B of the California Constitution because a local agency or school district has the authority to levy service charges, fees, or assessments sufficient to pay for the program or level of service mandated by this act, within the meaning of Section 17556 of the Government Code.