Will It Streamline Housing Development and Provide More Certainty?

Why it matters: SB 330, signed into law on October 9, 2019, and effective January 1, 2020, substantially limits the ability of municipalities to disapprove housing projects, condition housing projects to reduce density, or levy excessive standards on housing projects that raise costs and extend the permitting process. This is part of a continuing effort by the Legislature to encourage housing development in California by limiting a local agency’s discretion where proposed projects are already consistent with General Plan and zoning standards.

 

Facts: SB 330 inserts and amends several different sections of the California Government Code to streamline housing development for projects that meet specified criteria. (See Govt. Code sections 65589.5, 65905.5, 65913.10, 65940, 65941.1, 65943, 65950, 66300, 66301.) These new and amended statutes limit a local agency’s ability to disapprove housing projects or otherwise condition housing projects in a manner that reduces density or makes housing infeasible. Different restrictions apply to projects proposing affordable units than market rate units; but in both cases, agencies must make very narrow written findings in order to disapprove a project that is consistent with General Plan and zoning standards. SB 330 also limits the number of hearings and meetings that a local agency can hold in connection with certain housing development projects, and it shortens permissible timelines within which an agency must take action on a housing development application.

Specifically, the streamlining provisions of SB 330 include:

  • Where a proposed housing project complies with the applicable objective General Plan and zoning standards, local agencies may hold no more than five public meetings or hearings in connection with the project’s approval (Govt. Code § 65905.5(a)).
  • Local agencies must determine whether the site of a proposed housing development project is a historic site at the time the application is deemed complete, and this determination must remain valid during the pendency of the project (Govt. Code § 65913.10(a)).
  • Local agencies may not disapprove a proposed housing development project when the project complies with applicable General Plan, zoning and subdivision standards, unless the agency can find that the project would have a specific, adverse impact on the public health or safety and there is no feasible method to mitigate or avoid that impact without disapproval (Govt. Code § 65589.5(j)(1)).
  • Local agencies must approve or disapprove housing development projects within 90 days from the date of certification of the project’s environmental impact report, and within 60 days for certain affordable housing projects (Govt. Code § 65950(a)).

SB 330 also sets up a “preliminary application” process. Under this new and mandatory process, when a developer submits a preliminary application that includes a finite and set list of contents, the local policies, ordinances and standards applicable to the project are frozen in place. A development can only be held to those requirements in effect at the time the preliminary application is deemed complete, and, under the new statutory scheme, agencies have very limited discretion to deny a preliminary application’s completeness.

The new legislation not only limits a local agency’s ability to disapprove certain qualifying housing projects, but also severely limits a municipality’s ability to redesignate land where housing is currently a permitted use. Specifically, where housing is currently an allowable use, SB 330 prohibits cities and counties from changing the General Plan, specific plan or zoning designation in a manner that either reduces the allowable residential density or prohibits residential use altogether. The only exception is where the local agency concurrently amends the designation or standards applicable to property elsewhere in the jurisdiction to replace any lost housing capacity.

Practice Pointers

  • Residential and mixed use developers may see a direct reduction in permitting time lines, costs and uncertainty at the local level as a result of SB 330’s new and amended provisions, at least for projects that are already consistent with local General Plan and zoning standards.
  • Commercial and industrial developers seeking to build on land currently designated for residential uses may see an increase in costs and permitting timelines. SB 330 prohibits land use designation changes that remove the ability to develop housing, or reduce the maximum residential density, on a parcel-by-parcel basis. As a result, if a nonresidential project requires a redesignation of residential or mixed use land to a commercial or industrial designation that does not permit residential use, the local agency would be prohibited from approving that redesignation unless it concurrently amends its General Plan or zoning code to allow residential use, or increase the permitted residential density, elsewhere in the jurisdiction.