HomeMy WebLinkAboutStaff Report 7052
City of Palo Alto (ID # 7052)
City Council Staff Report
Report Type: Inter-Governmental Legislative Affairs Meeting Date: 6/6/2016
City of Palo Alto Page 1
Summary Title: Governor's By Right Housing Proposal
Title: Authorization for the Mayor to Sign a Letter Regarding the Governor's
By Right Housing Proposal
From: City Manager
Lead Department: Planning and Community Environment
Recommendation:
Staff recommends that the City Council discuss the Governor’s “By Right” Housing Proposal,
and authorize the Mayor to sign a letter stating the City’s position on the proposal.
Background & Discussion:
Summary of Governor’s Streamlining Affordable Housing Approvals
In an effort to encourage housing production, Governor Jerry Brown has proposed to
streamline the approval of certain multifamily housing projects that include a portion of deed-
restricted affordable units. The proposal would give certain multifamily projects “by right”
entitlement to develop, thereby removing a local government’s discretionary authority to reject
such projects and shortening the approval process.
The proposal – called Streamlining Affordable Housing Approvals – is contained in a trailer bill
to the Governor’s May 2016-17 budget revision. Shortly after its original introduction, on June
1, the Governor’s office released a series of amendments to the bill. (Attachment A.) The
Legislature is required to adopt and forward to the Governor a final budget by June 15th. Budget
trailer bills go into effect immediately upon signature by the Governor. It is not yet clear
whether the Legislature will hear the bill in connection with the budget or elect to defer
consideration until August.
The Governor’s affordable housing proposal would add section 65913.3 to the Government
Code. For qualifying projects, cities (including charter cities) could not require discretionary
review such as a conditional use permits. Since approvals of qualifying projects would be
ministerial, California Environmental Quality Act review would not be required.
City of Palo Alto Page 2
To achieve permitted “use by right”1 status, a housing development project must meet six
separate criteria:
The proposed development must be a (1) newly constructed structure; (2) containing
two or more dwelling units; (3) that includes residential units only or is a mixed-use
development where nonresidential uses are limited to “neighborhood-commercial” in
nature and located only on the first floor; and (4) does not include a second unit or the
conversion of an existing structure to condominiums.
The applicant must notify the local government that it intends to proceed under section
65913.3 and certify, under penalty of perjury, that the development conforms to all of
the statute’s requirements;
The development must be consistent with applicable objective general plan and zoning
standards at the time the application is submitted to the local government2;
The development must be located on an “urban” site, i.e., either immediately adjacent
to parcels developed with urban uses3 or surrounded by at least 75 percent of parcels
developed with urban uses or is bounded by a natural body of water;
The development must be attached housing with at least 20% of the units to be set
aside (deed-restricted for at least 30 years) for lower-income residents (those making
80% or less of median gross income). However, the affordability requirement is reduced
if the development is within a half-mile of a “transit priority area”4. In that case, only at
least 5% of the units must be set aside for very-low income residents (those making 50%
or less of area median income) or 10% set aside for lower-income residents (those
making 80% or less of area median income); and
If the site is not a designated housing site, then it may not be on certain types of land
(e.g., prime farmland, wetlands, very high fire hazard zone, hazardous waste site,
delineated earthquake fault zone or flood plain).
The proposal also includes streamlined processing for qualifying projects. If the city determines
the project is inconsistent with general plan and zoning standards, it must give written
1 Gov. Code § 65583.2(i) defines the phrase “use by right” to mean “that the local government's review of the
owner-occupied or multifamily residential use 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 [i.e. the California
Environmental Quality Act].”
2 The June 1 amendment defines “objective” planning standards as “land use and building intensity designation
applicable to the site under the general plan and zoning code, land use and density or other objective zoning
standards, and any setback or objective design review standards.”
3 “Urban uses” is defined in the proposal as any residential, commercial, public, institutional, transit or
transportation passenger facility, or retail use, or any combination of those uses.
4 “Transit priority area” is defined by the proposal as “an area within one-half mile of a major transit stop that is
existing or planned, provided the planned stop is scheduled to be completed within the planning horizon included
in a Transportation Improvement Program adopted pursuant to [federal law].”
City of Palo Alto Page 3
documentation of, and explain the reasons for, the inconsistency within 30 days of the
application’s submittal. If this deadline is missed or the documentation regarding the
inconsistency is inadequate, the development is deemed to qualify for “by right” approval. Note
that from a practical standpoint this expedited timeline essentially eliminates the ability for the
Council to conduct a public hearing on the project.
Such projects would remain subject to design review, but design review must take place within
90 days from the application’s submittal and “shall not in any way inhibit, chill, or preclude”
ministerial approval. Provided the project conformed with objective general plan and zoning
standards, the proposal would make all land use permits ministerial.5 Projects that would
directly displace existing residents (e.g., by demolishing an existing residential building) would
be subject to the California Relocation Assistance Act.
Concerns Raised by League of California Cities and Other Interest Groups
Though the proposal has garnered some local agency support (San Francisco and Los Angeles),
the League of California Cities and other interest groups have raised several significant
concerns.
The League has expressed concern over the elimination of public hearings and the exclusion of
elected city council members from critical local land use decisions. While current State law6
places limits on the city’s ability to deny certain housing projects, the proposal goes further by
making it nearly infeasible to conduct a public hearing within the 30 day review period and by
removing local discretion over land use entitlements, other than nominal design review.
Both the League and environmental groups expressed concern over elimination of CEQA
review. The CEQA exemption is based on the assumption that whatever environmental analysis
was conducted for the city’s general plan is sufficient for every project site. Absent adequate
environmental review many of these projects risk being built in locations where more analysis
and greater local review might have otherwise determined to be unsafe without mitigation
measures.
At housing advocates’ insistence, the new amendments protect existing affordable housing by
not offering the streamline exemption unless the developer replaces the existing affordable
units at comparable affordability levels. Housing advocates and the League continue to object
5 Government Code Section 65913.2 (g) provides: “The review of a permit, license, certificate, or any other
entitlement by any public agency with land-use authority over any development that satisfies subdivision (b) of
this section shall be ministerial.”
6 Examples of state laws placing limitations on local control over housing projects include: Density Bonus law
requiring concessions and extra density for qualifying projects (Government Code Section 65915 et seq.); Housing
Accountability Act restricting city’s authority to disapprove certain housing projects (Government Code Section
65589.5); Housing Element law requiring cities to zone for state allocated housing share (Government Code
Section 65580 et seq.); Second Unit law requiring ministerial approval of certain projects (Government Code
Section 65852.2.).
City of Palo Alto Page 4
to the bill’s affordability requirement which in Palo Alto’s case is less than the City’s existing
below market rate inclusionary requirement applicable to for sale units.
The Governor’s latest proposal is included as Attachment A. The League of Cities’ summary of
the proposal (Attachment B) and a draft letter of opposition (Attachment C) are also attached.
Attachments:
Attachment A: Proposed Trailer Bill on By Right Housing (PDF)
Attachment B: League of Cities Summary of the Govs Proposal 05-20-16 EAS (PDF)
Attachment C: Letter Opposing the Gov's By Right Housing Proposal (PDF)
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Streamlining Affordable Housing Approvals – Proposed Trailer Bill
Technical Modifications
SECTION 1. Section 65400.1 is added to the Government Code, to read:
65400.1. (a) A development applicant or development proponent pursuant to
Section 65913.3 of the Government Code may submit information describing the
development, including, but not limited to, land use and zoning designations and
requested permit(s) for the development to the Department of Housing and
Community Development in a reporting format to be made available. The information
submitted shall be compiled along with information pursuant to subparagraph (B) of
subsection (2) of subdivision (a) of Section 65400 and Section 65588 of the
Government Code as follows:
(i) Upon receipt of a local government determination regarding the
development submittal, or
(ii) Issuance of a building permit for the development.
(b) The Department of Housing and Community Development shall annually
review and report on its website the information that has been submitted pursuant
to this section.
SEC. 2. Section 65913 of the Government Code is amended to read:
65913. (a) The Legislature finds and declares that there exists a severe
shortage of affordable housing, especially for persons and families of low and
moderate income, and that there is an immediate need to encourage the development
of new housing, not only through the provision of financial assistance, but also through
changes in law designed to do all of the following:
(1) Expedite the local and State-supported residential development process.
(2) Assure that local governments zone sufficient land at densities high
enough for production of affordable housing.
Attachment A
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(3) Assure that local governments make a diligent effort through the
administration of land use and development controls and the provision of regulatory
concessions and incentives to significantly reduce housing development costs and
thereby facilitate the development of affordable housing, including housing for
elderly persons and families, as defined by Section 50067 of the Health and Safety
Code.
These changes in the law are consistent with the responsibility of local
government to adopt the program required by subdivision (c) of Section
65583.
(b) The Legislature further finds and declares that the costs of new housing
developments have been increased, in part, by the existing permit processes and by
existing land use regulations and that vitally needed housing developments have
been halted or rendered infeasible despite the benefits to the public health, safety,
and welfare of those developments and despite the absence of adverse
environmental impacts. It is therefore necessary to enact this chapter and to amend
existing statutes which govern housing development so as to provide greater
encouragement for local and state governments to approve needed and sound
housing developments.
(c) It is the intent of the Legislature that the provisions of Section 65913.3 of
the Government Code advance all of the following:
(A) the provisions of Government Code Section 65008;
(B) implementation of the State planning priorities pursuant to Government
Code Section 65041.1;
(C) attainment of Section 65580 of the Government Code;
(D) significant actions designed to affirmatively increase fair housing choice,
furthering the objectives of the Federal Fair Housing Act, 42 U.S.C. 3601, and
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implementing regulations; and
(E) the objectives of the California Global Warming Solutions Act of 2006,
commencing with Section 38500 of the Health and Safety Code.
(F) compliance with non-discretionary inclusionary zoning ordinances adopted
by localities.
SEC. 3. Section 65913.3 is added to the Government Code, to read:
65913.3. (a) For the purposes of this section, the following terms shall have
the following meanings:
(1) “Approved remediation measures” shall mean measures included in a
certified environmental impact report to mitigate the impact of residential development in
the subject location; or uniformly applied development policies or standards that have
been adopted by the city or county to mitigate the impact of residential development in
that location.
(2) “Affordable rent,” or “Affordable housing cost” shall be as defined by Health
and Safety Code subdivision (b) of Section 50053, or subdivision (b) of 50052.5
respectively.
(13) “Attached housing development” or “development” means a newly
constructed structure containing two or more dwelling units that is a housing
development project, as defined by subdivision (2) of subsection (h) of Section
65589.5 of the Government Code, but does not include a second unit, as defined by
subdivision (4) of subsection (i) of Section 65852.2 of the Government Code, or the
conversion of an existing structure to condominiums.
(4) “Department” means the Department of Housing and Community
Development.
(2)”Designated housing sites” means sites designated to allow
housing development by the general plan, a zoning ordinance, or for which a
certified environmental review document includes provisions to mitigate
potential harm.
(35) “Land-use authority” means any entity with state-authorized power to
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regulate land-use permits and entitlements conferred by local governments.
(46) “Land-use restriction” means covenants restricting the use of land,
recorded regulatory agreements, or any other form of an equitable servitude.
(57) “Major transit stop” means a site containing an existing rail transit station, a
ferry terminal served by either a bus or rail transit service, or the intersection of two or
more major bus routes with a service interval frequency of 15 minutes or less during
the morning and afternoon peak weekday commute periods, and offering weekend
service.
(68)“Public agency” means a federal, state, or local government agency, or a
local or regional housing trust fund which has been funded or chartered by a federal,
state, or local government agency.
(79) “Required by law to record” means, but is not limited to, a development
applicant or development proponent is required to record a land-use restriction
based on any of the following:
(i) As a condition of award of funds or financing from a public
agency.
(ii) As a condition of the award of tax credits.
(iii) As may be required by a contract entered into with a public agency.
(810) “Transit priority area” means an area within one-half mile of a major
transit stop that is existing or planned, provided the planned stop is scheduled to be
completed within the planning horizon included in a Transportation Improvement
Program adopted pursuant to Section 450.216 or 450.322 of Title 23 of the Code of
Federal Regulations within the adopted general plan or specific plan of a local
government.
(911) “Urban uses” means any residential, commercial, public institutional,
transit or transportation passenger facility, or retail use, or any combination of those
uses.
(b) A development that satisfies all of the following criteria shall be a permitted
use by right as that term is defined in subdivision (i) of Section 65583.2 of the
Government Code:
(1) The development applicant or development proponent has submitted to the
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local government its intent to utilize this authority, and certifying under penalty of
perjury that, to the best of its knowledge and belief, it conforms with all other
provisions identified herein.
(2) The development is consistent with the following objective planning
standards: land use and building intensity designation applicable to the site under
the general plan and zoning code, land use and density or other objective zoning
standards, and any setback or objective design review standards, all as in effect
at the time that the subject development is submitted to the local government
pursuant to this section.
(3) The development is located on a site that is either immediately adjacent to
parcels that are developed with urban uses or for which at least 75 percent of the
perimeter of the site adjoins parcels that are developed with urban uses or is bounded
by a natural body of water.
(4) The development must be an attached housing development, for which
the development applicant or development proponent already has recorded, or is
required by law to record, a land-use restriction, which shall require all the following:
(A) A duration of at least 30 years or more.
(B) Enforceability byThat any public agency and or by any member or members
of the public, including non-profit corporations, may bring and maintain an
enforcement action.
(C) For developments within a transit priority area, a restriction of
the development’s real property to a level of affordability equal to or
greater than either of the following:
(i) At least ten percent of the total units of a housing development for lower
income households, as defined in Section 50079.5 of the Health and
Safety Code.
(ii) At least five percent of the total units of a housing development for very
low income households, as defined in Section 50105 of the Health and
Safety Code.
(D) For developments not within a transit priority area, a restriction of the
development’s real property to a level of affordability equal to or greater than at
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least twenty (20) percent or more of the residential units restricted to and occupied
by individuals whose income is eighty (80) percent or less of area median gross
income.
(5) Except for developments that are located on designated housing sites, Unless
the development incorporates approved remediation measures in the following locations
as applicable to the development, the development is not located on a site that is any of
the following:
(A) 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.
(B) Wetlands, as defined in Section 328.3 of Title 33 of the Code of Federal
Regulations.
(C) Within a very high fire hazard severity zone, as determined by the
Department of Forestry and Fire Protection pursuant to Section 51178 of the
Government Code, or within a high or very high fire hazard severity zone as
indicated on maps adopted by the Department of Forestry and Fire Protection
pursuant to Section 4202 of the Public Resources Code; however, this limitation
shall not apply to sites excluded from the specified hazard zones by a local agency
pursuant to subdivision (b) of Section 51179 of the Government Code or sites that
have adopted sufficient fire hazard mitigation measures as may be determined by
their local agency with land-use authority.
(D) Hazardous waste site that is listed pursuant to Section 65962.5 of the
Government Code, 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.
(E) Within a delineated earthquake fault zone as determined by the State
Geologist in the official maps published thereby.
(F) Within a flood plain as determined by maps promulgated by the Federal
Emergency Management Agency, unless the development has been issued a
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floodplain development permit pursuant to Sections 59 and 60 of Title 44 of the Code
of Federal Regulations.
(G) Within a flood way as determined by maps promulgated by the Federal
Emergency Management Agency, unless the development receives a no rise
certification in accordance with Section 60.3(d)(3) of Title 44 of the Code of
Federal Regulations.
(H) Within an area determined by the Department of Housing and Community
Development to be inappropriate for affordable housing development by additional
objective criteria, including areas severely lacking in access to public transit,
accessibility to employment or educational opportunities, and residentially supportive
retail and service amenities, all as to be determined through regulations adopted by the
Department at its discretion; until the Department adopts such regulations this
subparagraph (H) shall not be interpreted to prohibit any such site. operative nor apply.
The Department is authorized, but not mandated, to adopt regulations to implement the
terms of this subparagraph (H); and such regulations shall be adopted pursuant to the
Administrative Procedures Act set forth in Government Code section 11340 et
seq. Division 13 of the Public Resources Code shall not apply to either:
the Department’s adoption of the regulations authorized by this section, or any financial
assistance awarded by any public agency to any development that satisfies subdivision
(b) of this section. This section shall be operative regardless as to whether the
Department adopts the regulations authorized by this section.
Division 13 of the Public Resources Code shall not apply to the Department’s
adoption of the regulations authorized by this section.
(6) Unless the proposed housing development replaces units at a level of
affordability equal to or greater than the level of a previous affordability restriction, the
development must not be on any property that is any of the following:
(A) A parcel or parcels on which rental dwelling units are, or if the dwelling
units have been vacated or demolished in the five-year period preceding the
application, have been subject to a recorded covenant, ordinance, or law that restricts
rents to levels affordable to persons and families of lower or very low income.
(B) Subject to any other form of rent or price control through a public entity’s
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valid exercise of its police power; or occupied by lower or very low income
households.
(c) If the applicable city, county, or city and county determines that the
development is inconsistent with at least one of the objective planning standards
delineated in paragraph (2) of subdivision (b), then it must provide the development
proponent written documentation of which standard or standards the development is not
consistent with, as well as explain why the development is not consistent with that
standard or standards, all within thirty (30) calendar days of submittal of the
development to the local government pursuant to this section. If the documentation
described in this subsection fails to identify the objective standard or standards that the
development is not consistent with, if it fails to provide an explanation of why it is
inconsistent therewith, or if it is not provided to the development proponent within thirty
(30) calendar days of submittal, then for the purposes of this section, the development
shall be deemed to satisfy paragraph (2) of subdivision (b) of this section.
(d) Any design review of the development shall not exceed ninety (90) days from
the submittal of the development to the local government pursuant to this section, and
shall not in any way inhibit, chill, or preclude the ministerial approval provided by this
section and the effect thereof.
(e) A development that satisfies subdivision (b) of this section shall not be
subject to the requirements of Section 65589.5 of the Government Code in order to be
accorded by right status under this section.
(f) This section does not relieve an applicant or public agency from complying
with the Subdivision Map Act (Division 2 (commencing with Section 66410)).
(g f) The review of a permit, license, certificate, or any other entitlement,
including, but not limited to: the enactment and amendment of zoning or design review
ordinances or guidelines, the issuance of zoning variances, the issuance of conditional
use permits, and the approval of tentative subdivision maps, by any public agency with
land-use authority over any development that satisfies subdivision (b) of this section
shall be ministerial.
(h g) This section shall be enforceable pursuant to a writ of mandate issued
pursuant to Section 1085 of the Code of Civil Procedure.
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(i h) The development applicant or development proponent may submit
information describing the development pursuant to Government Code Section
65400.1(a).
(j i) The Legislature finds and declares that this section shall be applicable to
all cities and counties, including charter cities, because the Legislature finds that the
lack of affordable housing is a matter of vital statewide importance.
(k j) Any and all individuals displaced by a development that is approved through
the ministerial process authorized by this section shall be accorded relocation
assistance as provided in the California Relocation Assistance Act set forth in Section
7267.8 et seq. California Real Property Acquisition and Relocation Assistance Act, set
forth in Chapter 16, commencing with Government Code Section 7260. The
development proponent shall be responsible for paying for relocation assistance
expenses incurred by any local agency as a result of this section.
(l k) This section shall apply, notwithstanding anything to the contrary contained
in this code or in any other law.
May 20, 2016
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Streamlining Affordable Housing Approvals Proposed Trailer Bill The Governor’s proposal for streamlining affordable housing approvals requires cities and counties to approve:
•A certain type of housing project with modest levels of affordable units
•As a permitted “use by right”
•With no public input;
•With limited ministerial review; and
•No CEQA compliance.
What types of housing projects are included? Newly constructed structure containing two or more dwelling units in a project that is entirely residential or part of a mixed-use development that comply with the criteria summarized in the next question. The proposal does not apply to the construction of a second unit or the conversion of an existing structure to condominiums. [NOTE: The proposal is not clear. The language could be interpreted to mean that a single-family housing development is also included.]
What restrictions are placed on the location of these housing projects? A housing project can be located on a “designated housing site.” That means a site designated to allow housing development by the general plan, a zoning ordinance, or, for which a certified environmental review document includes provisions to mitigate potential harm. (From Administration presentations to the Legislature on this proposal it is evident that using the word “or” here rather than “and” is not an oversight.) If a housing project is not located on a “designated housing site,” the project may not be located on a site that is any of the following: (1) “prime farmland” or “farmland of statewide importance;” (2) wetlands; (3) within a very high fire hazard severity zone; (4) hazardous waste site; (5) within a delineated earthquake fault zone; (6) within a flood plain; or (7) within a flood way. (The listing of these lands is not as comprehensive as other environmental statutes that list endangered species, native plants, habitat, historic resources, etc.) What is a permitted “use by right?” This means that a city may not require a conditional use permit, planned unit development permit, or other discretionary review or approval that would constitute a “project” for purposes of CEQA. [NOTE: This means that approval of a housing project covered by the proposal is not subject to any environmental evaluation under CEQA.]
Attachment B
May 20, 2016
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What is the approval process for a housing project that qualifies for permitted “use by right” review? A city’s review of a permit, license, certificate, or any other entitlement including amendment of zoning ordinances, design review ordinance, zoning variances, conditional use permits, and tentative subdivision maps would be considered “ministerial.“ Ministerial review involves only the use of fixed standards or objective measurements. The public official merely applies the law to the facts as presented but uses no special discretion or judgment in reaching a decision whether or how a project should be carried out. (Typical examples of issues that require the exercise of discretion are: Is there as safe route to local schools? Where is the best location for entrances to the development? What is the impact of the vehicle miles traveled generated from the development on the city and regional transportation network? Is the design sufficiently compatible with the community character? Etc.) Within 30 days of receiving an application, the public official must either approve the development or explain why it is inconsistent with objective general plan and zoning standards. If public official fails to respond within 30 days or fails to provide explanation, project is deemed to be consistent with general plan and zoning standards.
What else is included in the proposal?
• Declaration that the proposal applies to charter cities
• Requirement to pay relocation assistance if the project displaces individuals
• Declaration that it overrides anything to the contrary in the existing law. What criteria must a housing project comply with to qualify for permitted “use by right” review? A housing project must be:
• General plan and zoning: Consistent with objective general plan and zoning standards in effect at the time the application is submitted
• Location: Located anywhere in the state on a site that is either immediately adjacent to parcels that are developed with urban uses or at least 75% of the perimeter of the site adjoins parcels that are developed with urban uses;
• Affordability (TPA): For developments within a transit priority area1, subject to a restriction lasting 30 years requiring at least 10% of the units be 1 A transit priority area is an area within ½ mile of a major transit stop that is existing or planned within the adopted general plan or specific plan of a local
May 20, 2016
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affordable to lower income households or at least 5% of the units to be affordable to very low income households.
• Affordability (non-TPA): For developments outside a transit priority area, subject to a restriction lasting 30 years requiring at least 20% of the units to be affordable to households whose income is 80% or less of area median gross income.
Comments and Concerns
No public review The hallmark of local government land use decisions has been the public hearing. A public hearing (1) allows interested members of the community to inform the decision-makers of their support or opposition to the project; and (2) guarantees that property rights will not be impacted without the “due process of law.” The Governor’s proposal allows the following types of land use decisions to occur without any public review: o General plan amendment
o Zone change
o Conditional use permit
o Tentative subdivision map
o Zoning variance
Excluding the elected decision makers The proposal excludes the elected city council and board of supervisors from land use decisions. These public officials are elected to represent their constituents and to be available and responsive. The proposal asks appointed staff, who are not directly accountable to local voters, to make the policy decisions: this is the arena reserved for elected officials. Local governments are already required to approve housing but with
public hearings and CEQA review
• Housing Accountability Act (20% lower income; 100% moderate income or middle income; emergency shelter) (Gov. 65589.5) government. This is similar to areas described for environmental streamlining under SB 375, but under this measure, projects in these areas would be exempt from CEQA.
May 20, 2016
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Must approve a housing project that is consistent with general plan and zoning ordinance unless (1) specific adverse impact on public health or safety; (2) housing is not needed; (3) denial required to comply with state or federal law; (4) project is on land zoned for agriculture or resource preservation.
• “No net loss” (Gov. 65863) May not reduce the residential density for any parcel unless remaining sites identified in housing element are adequate to accommodate RHNA
• Density bonus (Gov. 65915) Must award density bonus and other concessions and incentives when development includes 10% lower income, 5% very low income, senior citizen, or 10% for moderate income in common interest development
• Least cost zoning (Gov. 65913.1) Must zone sufficient land for residential use with appropriate standards to meet housing needs for all income categories identified in housing element. When land is zoned, then Housing Accountability Act requires approval.
• Second units (Gov. 65852.2) Must approve second unit with ministerial review. City may not adopt ordinance that totally precludes second units in residential zones unless specific adverse impacts on public health, safety, and welfare.
• Ministerial approval of multifamily housing (Gov. 65589.4) Must approve as a permitted use multifamily housing structure located on an infill site that is consistent with general plan and zoning ordinance in which at least 10% of the units are affordable to very low income households; or at least 20% available to lower incomes; or 50% affordable to moderate income households. No project level CEQA review The proposal requires ministerial review of a housing project if it is consistent with “objective general plan and zoning standards.” CEQA review that is required for both the general plan and zoning ordinance does not extend to the project level. CEQA review that is required for both the general plan and zoning ordinance may
May 20, 2016
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have occurred many years before the development application is submitted. Cities and counties will not be able to determine whether site-specific conditions or changed circumstances and new information require environmental mitigation. If for some reason a previous environmental document was helpful in evaluating the project, the bill does not allow a city to impose conditions to require compliance with previously-adopted mitigation measures.
What is an “objective” general plan and zoning standard? The general plan is a policy document. It is the “constitution” of a city or county. It is the document that sets forth the community’s vision in the various required elements. Objective standards are included in implementing ordinances and project-level review, not in a general plan. An example of an “objective” zoning standard might be an inclusionary housing requirement. However, if a housing development chooses not to comply with this “objective” standard, the applicant can request a zone change to eliminate the requirement. The proposal requires the city to approve the request as a ministerial decision. Cost of relocation The proposal allows a developer to tear down an existing structure, displace existing residents, and then requires the city or county – that has no discretion in whether or not the structure is torn down or the new housing is built – to pay relocation costs. Affordable housing will not remain affordable A housing development must be “required by law to record” a land-use restriction based on (1) a condition of award of funds or financing from a public agency; (2) as a condition of the award of tax credits; (3) as might be required by contract entered into with a public agency. In other words, if a developer does not receive funding for the affordable housing, the housing will not remain affordable. Breadth of the proposal The proposal states that it applies “notwithstanding anything to the contrary contained in the law.” It is not possible to accurately evaluate the impact of this statement because of its breadth.
City of Palo Alto
Office of the Mayor and City Council
June ___, 2016
Honorable Assembly Member Adrin Nazarian
Chair, Assembly Budget Subcommittee #4
State Capitol, Room 6026
Sacramento, CA 95814
Fax: 916-319-2199
Honorable Senator Richard Roth,
Chair, Senate Budget Subcommittee #4
State Capitol, Room 5019
Sacramento, CA 95814
Fax: 916-323-8386
RE: Governor’s By Right Housing Proposal
Notice of Opposition
Dear Honorable Chairs Nazarian and Roth:
After considerable examination, the City of Palo Alto opposes the recently released
proposal by the Governor to limit local discretionary land use approvals of specified
housing developments by having such approvals be considered “ministerial” actions.
This decision would effectively eliminate opportunities for public review, project-level
environmental review and any helpful design review, all of which promote thoughtful
and sustainable housing development.
We believe that such fundamental policy changes should not be rushed through as a
budget proposal, but merit extensive review by the appropriate policy committees in a
deliberative fashion.
Perhaps most importantly, the 30 day review and response time required by the
proposal effectually eliminates public review of these major development projects,
which, in turn, undermines the principals of transparency and public engagement.
P.O. Box 10250 Palo Alto, CA 94303 650-329-2571
650-328-3631 fax
Attachment C
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Absent such principals, the integrity of local government may be at stake. While it may
be frustrating for some developers to modify their projects to address concerns about
traffic, parking, massing and other development impacts, those affected by such
projects have a right to have their concerns considered. Indeed, it is the public nature
of the development process that encourages decision makers to balance the interests of
all stakeholders for any given project. Moreover, public review and discussion uphold
the accountability of elected officials and ensures a fair process for all proposals.
Without an adequate opportunity for the public to voice concerns or support for a
project, the Governor’s proposal risks eroding the fundamental trust between
developers, the public, and local elected officials.
Restricting design review is also short-sighted. A community’s character is often first
defined by the design of its built environment. The people that make up that community
and the local experts that can offer technical insights should be allowed a reasonable
amount of time to consider and contribute to that design. More practically, the design
review process can serve as the time to gain the most community support for a
proposed project. Condensing the timeline for design review weakens the opportunity
to foster community acceptance and needlessly raises the possibility of long term
frustration for the project’s neighbors. Restricting the city’s ability to deny a project
based on significant compatibility concerns or simply bad design eliminates meaningful
design review.
The dangers of State housing mandates were recently on display here in Palo Alto when
a developer used the State’s density bonus law to secure design “concessions” and
approval to construct a mixed use building with over 21,000 square feet of commercial
development on the basis of agreeing to deed restrict three units as affordable. In this
instance, the State’s mandate demanded local approval of a project and concessions for
a 19% increase in lot coverage and an increase in commercial density that will
exacerbate the City’s jobs/housing imbalance. We are concerned that the Governor’s
current proposal will have similar unintended consequences.
Amendments, published as recently as June 1, 2016 have improved the proposal. It now
clarifies that housing projects subject to the proposal’s provisions must comply with the
Subdivision Map Act; and other amendments diminish the ambiguity about what
objective zoning standards the project must satisfy. These clarifications, while helpful
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still limit local control by maintaining the review of many permits and entitlements as
ministerial. Finally, the low affordability thresholds near “transit priority areas” remain a
concern for Palo Alto because the City’s inclusionary requirement is 15% city wide,
which is 5-10% higher than the transit priority area requirements in the proposal.
We are sure there is a proposal that better balances the interests of local governments
and the State, both of which are necessary to craft an effective solution to the current
housing crisis.
On behalf of the residents we represent who deserve a voice in the future shape of their
communities, the City of Palo Alto respectfully states our opposition to this measure.
Sincerely,
Mayor
City of Palo Alto
cc: Senator Jerry Hill, (via e-mail: senator.hill@senate.ca.gov)
State Assembly Member Rich Gordon
(via email: Andrew.berthelsen@asm.ca.gov)
Seth Miller, Regional Public Affairs Manager, League of California Cities, (via e-
mail: smiller@cacities.org )
Dan Carrigg, League of California Cities, (via e-mail: CarriggD@cacities.org)