Recent Housing Legislation and the Initiative Power: What You Need to KnowOctober 19, 2021
Like most recent sessions, the legislative session that concluded this fall produced a raft of new legislation to address California’s ever-present housing crisis. The legislation introduces several new steps to the complicated dance of planning and zoning law. Some of the new laws let the State call the tune, while others let the local participants choose their moves—but only on certain areas of the dance floor. As far as the initiative power is concerned, one new law, SB 10, lets local legislative bodies stop the music: the law includes a provision allowing city councils and boards of supervisors to override certain initiatives by a two-thirds vote.
This article describes SB 10 and other key pieces of recent housing legislation, including what the new laws do and their potential effects on planning and zoning ballot measures.
SB 10: An Optional Density Measure with a Unique Shift in Power
SB 10 gives local governments the option to up-zone—i.e., increase permitted densities for—individual parcels for up to 10 units of residential housing. To be eligible, parcels must be located in transit-rich areas or urban in-fill sites outside of very high fire hazard severity zones (with some exceptions). Further, SB 10 does not apply to publicly-owned parcels designated by initiative as open-space or park land.
SB 10 is voluntary—that is, it does not require local governments to up-zone any parcel. But if the local government decides to up-zone a parcel using SB 10, the law gives the city council or board of supervisors significant power to get it done. For example, ordinances adopted under SB 10 are “not a project” under the California Environmental Quality Act, or CEQA, making them immune from environmental review. Local ordinances, such as inclusionary zoning and affordable housing fees, continue to apply.
Significantly, SB 10 also allows city councils and boards of supervisors to override contrary initiatives by a two-thirds vote. The law allows local governing bodies to adopt eligible up-zoning ordinances despite “any local restrictions . . . enacted by the jurisdiction”—including initiatives— “that limit the legislative body’s ability to adopt zoning ordinances.” That is, if the local electorate has adopted an initiative limiting density in an area to less than 10 units per parcel, the local governing body may ignore that vote as long as two-thirds of its members agree.
SB 10’s express shift of power from local electorates to city councils and boards of supervisors is unprecedented. While the State Legislature may itself preempt local land use regulations, generally by limiting local flexibility to regulate in certain areas, SB 10 is different: it preserves local flexibility, but allows local legislative bodies to override the initiative power reserved by the people in the State Constitution. This aspect of SB 10 has been challenged as unconstitutional. See AIDS Healthcare Foundation v. Bonta, LA Superior Court Case No. 21STCP03149.
Because up-zoning under the law is optional for local jurisdictions, SB 10 is not likely to lead to significant changes in cities and counties with elected officials who are resistant to growth. On the other hand, by reducing public engagement via CEQA and initiatives, the law gives city councils and boards of supervisors seeking to accommodate more housing significant leeway to increase residential densities despite local opposition. And once a parcel is up-zoned under SB 10, it may not be possible to reverse the action: “A legislative body that adopts a zoning ordinance pursuant to this section shall not subsequently reduce the density of any parcel subject to the ordinance.”
SB 9 and Other Legislation: More Potential Impact, Less Radical Mechanisms
While SB 10 has a splashy impact on the initiative power, other housing laws passed this session without SB 10’s initiative-override provision may have considerably greater practical effect.
Most significantly, SB 9, which has been hailed (or denounced, depending on the speaker’s point of view) as the end of single-family zoning in California, requires local legislatures to ministerially approve more housing than single-family zoning would otherwise allow. SB 9 accomplishes this through two related mechanisms: first, it requires ministerial approval of certain urban lot-splits, creating two lots out of one. Second, it requires ministerial approval of up to two units on any lot zoned for single-family use, including lots created by the urban lot-split mechanism.
To be eligible for either SB 9 treatment, parcels must be located in an urbanized area or a city that contains an urbanized area within its boundaries. Further, use of SB 9 cannot require demolition or alteration of affordable housing, rent-controlled housing, or housing occupied by a tenant within the three years prior to the application. Parcels also cannot be located within historic districts, on hazardous waste sites, or in other specified areas. The application of SB9 to property within the state’s Very High Severity Fire Zone is a difficult question that local agencies will need to grapple with.
SB 9 allows local governments some flexibility to shape ministerially approved projects, but only to a point. Local governments may impose objective zoning, subdivision, and design review standards, provided that those standards do not preclude construction of up to two units of at least 800 square feet in area, or, for the lot-split provision, two approximately equal lots of at least 1,200 square feet, unless the jurisdiction adopts an ordinance allowing a smaller area. Agencies may wish to review their codes to ensure that desired standards are objective.
In addition to SB 9, the Legislature adopted and the Governor signed a series of other bills. Of note, these bills include SB 478, which prohibits local agencies from limiting housing development projects of 10 or fewer units via floor area ratio standards and/or lot coverage requirements.
SB 9 and SB 478 limit the use of the initiative power through more ordinary means than that employed by SB 10: that is, they streamline housing development in a way that limits the effect of local codes, including zoning standards adopted via initiative. (For more discussion of related legal issues, see “Is local control of affordable housing development dead? The answer is unclear” in a previous issue of In the Public Interest). But because SB 9 and other bills bind all local governments, they will likely have a greater practical impact than SB 10.
SB 8: Clarification of the Housing Crisis Act of 2019 and the Initiative Power
Finally, SB 8, which clarifies and extends the provisions of the Housing Crisis Act of 2019 (aka SB 330), also has unique implications for the initiative power. The 2019 Act permitted a local government to reduce the intensity of permitted development within a jurisdiction as long as it “concurrently” increased permitted intensity elsewhere in the jurisdiction, resulting in no net loss in residential capacity. SB 8 clarifies that these powers may be exercised via initiative. It further defines “concurrently” to mean that the initiative measure must ensure that the added residential capacity is effective at the same time as the reduction in residential capacity.
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With the possible exception of SB 8, the new housing legislation will make it more difficult for local electorates to restrict housing growth via initiative. The extent to which additional housing, or affordable housing, will be constructed as a result of these laws remains to be seen.
For more information about recent legislation and how it interacts with the initiative power and local land use planning, contact Aaron Stanton.