Written by John Hanna and David Van Atta*
The California State Legislature has recently, particularly in the past five years, made many statutory attempts to resolve what has been characterized as a "housing crisis" in the State. In this article, we review several of those statutes we determined to be the most relevant to the creation and operation of common interest developments. Notably, as of this writing there are also several bills pending in the Legislature that are designed to further increase the amount of housing in the State.1
The statutes we review are as follows: I. Housing Accountability Act; II. Planning and Zoning Laws; III. Senate Bill (SB) 35; IV. Government Code section 65913.5—Transit Rich or Urban Infill Sites; V. Accessory Dwelling Units; VI. SB 9—Certain Lot Splits; VII. Affordable Units in Multifamily Structures; VIII. Affordable Housing and High Road Jobs Act of 2022; IX. Mixed-Income Housing Developments Along Commercial Corridors; X. The Middle Class Housing Act of 2022 (SB 9); XI. Workforce Housing; XII. Limitations on Requiring Parking; and XIII. Environmental Review of Housing.
The Housing Accountability Act, Government Code section 65589.5 (the "HAA"), declared a statewide housing emergency.2 The HAA goes to great lengths to try to establish a legal framework that fosters the development of affordable housing and deals with various strategies and procedures that some local jurisdictions adopt to circumvent the state-imposed requirement that those jurisdictions provide a fair share of affordable housing within their area.
The Housing Crisis Act of 2019 (Senate Bill 330) was to be in effect until January 1, 2025, but was extended by SB 8 to January 1, 2030. The following provisions of the Housing Crisis Act will remain in effect until January 1, 2030:
- No more than five hearings on a proposed housing project, including continuances and appeals, may be held.
- Moratoriums on housing or mixed-use developments are limited.
- Only "objective" design standards may be imposed or enforced.
- The number of housing units may not be capped, except in predominantly agricultural counties.
- Housing projects that require demolishing units recently rented by low-income households, or that fail to replace dwelling units lost to demolition may not be approved.
The HAA provides, among other things, that a local government shall not reject or make infeasible housing development projects. Specifically, a local agency such as a city or county shall not disapprove a housing development project for very low, low, or
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moderate-income households nor condition approval in a manner that renders the housing development project infeasible for development for very low, low, or moderate-income households unless the agency makes specific written findings based on a preponderance of the evidence as to one of the following:
(1) The local agency has adopted a housing element that has been revised in accordance with Government Code section 65588;
(2) The local agency is in substantial compliance with article 10.6 (Housing Elements); or
(3) The local agency has met or exceeded its share of the regional housing need allocated pursuant to Government Code section 65584, subdivision (d).
Also, a local agency shall not disapprove a housing development project for very low, low, or moderate income households, or condition its approval, in a manner that renders the project infeasible for development, unless it makes written findings based upon substantial evidence in the record, as to one of the following:
(1) The local agency has adopted a housing element that is in substantial compliance with article 10.6 (Housing Elements) of chapter 3 (Local Planning), Division 1 (Planning & Zoning) of title 7 (Planning and Land Use) of the Government Code, and the agency has met or exceeded its share of the regional housing need allocation pursuant to Government Code sections 65589.5, subdivision (b) and 65589.5, subdivision (d)(1); or
(2) The development project would have a specific adverse impact upon the public health and safety and there is no feasible method to mitigate the impact without rendering the development unaffordable to low- and moderate-income households as provided in Government Code section 65589.5, subdivision (d)(2); or
(3) The denial of the project or imposition of conditions is required to comply with specific state or federal law, and there is no feasible method to comply without rendering the development unaffordable to low- and moderate-income households as provided in Government Code section 65589.5, subdivision (d)(3); or
(4) The development project is proposed on land zoned for agriculture or resource preservation that is surrounded on at least two sides by land being used for agriculture or resource preservation purposes, or which does not have adequate water or wastewater facilities to serve the project as provided by Government Code section 65589.5, subdivision (d)(4); or
(5) The development is inconsistent with both the local zoning ordinance and the general plan use designation as specified in any element of the general plan as it existed on the date the application was deemed complete, and the local agency has adopted a revised housing element in accordance with Government Code section 65588 that is in substantial compliance with article 10.6 (Housing Elements) (Gov. Code, § 65589.5, subd. (d)(5)). (This subdivision (d)(5) has been referred to colloquially as the "Builder's Remedy" as discussed further below.)
Under Assembly Bill (AB) 2234 enacted by the California Legislature in 2022, the HAA was amended and sections 65913.3 and 65913.3.5 were added to the Government Code to revise the provisions of the Permit Streamlining Act, particularly as applied to post entitlement matters such as issuance of building permits. Note also that AB 2234 provides that a local agency's failure to comply with the specified timelines is a violation of the HAA, exposing the local agency to the attorney's fees, mandamus relief, and potential fines provided by the HAA.
The HAA does not apply to a project to build an individual single-family home.3 A change in zoning or general plan land use after the date the application was deemed complete shall not constitute a valid basis to disapprove or condition the approval of a housing development project for very low to moderate incomes.4
A. THE BUILDER'S REMEDY
A critical component of the HAA, causing many cities much angst, is a provision that has been designated as the "Builder's Remedy." A California city or county is to have a certified housing element as part of its general plan process within certain statutory timelines.5 The HAA provides for certain allowable actions by property developers if the city or county fails to comply.6 The so-called "Builder's Remedy" is a housing development streamlining tool that provides developers the option to file an application for a housing development project with at least 20% affordable housing that is not in conformance with a jurisdiction's zoning or general plan.
So long as the local government does not have a Department of Housing and Community Development certified housing element, the local governmental agency would have very limited ability to deny such a qualifying housing development project. While the HAA generally restricts local governments' options for disapproving certain housing development projects, subdivision (d) of the HAA provides further restrictions on the disapproval
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of housing "for very low-, low-, or moderate-income households," which the HAA defines as a project that contains either (1) 20% low-income housing, or (2) 100% moderate-income housing.7
Developers interested in pursuing projects in noncompliant jurisdictions may wish to consider the inclusion of 20% low-income units to qualify for the protections afforded under this Builder's Remedy. In any action to challenge the validity of a decision by a city or county to disapprove a project or approve a project upon the condition that it be developed at a lower density, the city or county shall bear the burden of proof that the decision has conformed to all the conditions specified in the HAA.8
B. REVIEW OF PROVISIONS OF THE HAA
A "housing development project" as used in the applicable Government Code section means a use consisting of residential units only or mixed-use developments with at least two thirds of the square footage designated for residential use or transitional or supportive housing.9 Housing for very low, low or moderate-income households means either at least 20% of the total units should be sold or rented to lower income households as defined in Health and Safety Code section 50079.5, or 100% of the units shall be sold or rented to persons and families of moderate income as defined in Health and Safety Code section 50093, or persons and families of middle income as defined in Government Code section 65008.
Housing units targeted for lower income households should be made available at a monthly housing cost that does not exceed 30% of 60% of area median income with adjustments for household size made in accordance with the adjustment factors on which lower income eligibility limits are based. Housing units targeted for persons and families of moderate income shall be made available at a monthly housing cost that does not exceed 30% of 100% of area median income. "Area median income" means area median income as periodically established by the Department of Housing and Community Development pursuant to section 50093 of the Health and Safety Code.10
Also included in the HAA are strict time limits on the number of days within which an application for a housing development project is determined to be complete.11 These sections provide for definitions of "deemed complete" and "determined to be complete" as these definitions apply to the...
