Applying SB 330 In Real LifeJanuary 13, 2022
It has been a little over two years since the Legislature adopted SB 330, a bill that significantly changed how local governments in California process applications for housing development projects. Also known as the Housing Crisis Act of 2019, SB 330 amended the Housing Accountability Act and Permit Streamlining Act, and added new provisions to the Government Code limiting local authority to downzone property or adopt new, subjective design standards. In 2021, the Legislature enacted SB 8, which clarified and updated some of SB 330’s terms.
With all of these changes, cities and counties are re-thinking how they process applications for housing development projects. This article answers some frequently asked questions about the SB 330 process and provides a few tips, now that we have a couple of years of SB 330 implementation under our belts.
Which projects are subject to SB 330’s rules?
When a development application comes in the door, the first question to ask is, “Is this a ‘housing development project’ subject to SB 330?” The Housing Accountability Act defines “housing development project” to mean a project that proposes residential units only, a mixed-use development in which at least 2/3 of the square footage is residential, or transitional or supportive housing.
In 2021, the Legislature clarified that, for some purposes, a single residence can count as a “housing development project.” In particular, a single family home is a “housing development project” for purposes of Government Code sections 65905.5 (limiting the number of hearings allowed for any “housing development project”), 65940 (requiring that public agency provide list of information required for complete housing development project application), 65941.1 (preliminary application requirements), 65943 (Permit Streamlining Act provision requiring completeness determination within 30 days), 65950 (Permit Streamlining Act provision requiring decision within certain period from completion of CEQA review), and 66300 (prohibition on enforcing new subjective standards on housing projects). However, only projects with two or more residences are “housing development projects” for purposes of Government Code section 65589.5, which prohibits cities and counties from denying or making infeasible “housing development projects” that comply with objective development standards, unless specific findings are made.
What is a “preliminary application”?
Under SB 330, an applicant may submit a “preliminary application” for any housing development project. By doing so, the applicant locks into place the objective development standards in place at the time the preliminary application is submitted. Unlike with a traditional application, the local government does not make any formal determination about whether the preliminary application is “complete”—rather the application is “deemed complete” as long as it contains all of the elements required by Government Code section 65941.1.
Section 65941.1(b) requires local agencies to compile a checklist and application form for preliminary applications, but the Department of Housing and Community Development (HCD) also provides a standardized form that applicants may use if the local agency has not prepared its own form.
Once a preliminary application is submitted, an applicant must provide a full application, with all information required by the city or county, within 180 days. If the local agency determines that full application is incomplete (according to the standard 30-day permit streamlining act process), the applicant must submit all missing information within 90 days or else the preliminary application expires.
How do I determine if a project is consistent with my jurisdiction’s “objective” standards?
One of the fundamental rules of the Housing Accountability Act is that cities and counties may not deny a housing development project or reduce its density if it is consistent with “objective, quantifiable, written development standards, conditions and policies,” unless certain findings are made. Government Code § 65589.5(j). SB 330 clarified that the term “objective standards” means the same thing here as in SB 35, i.e., objective standards involve “no personal or subjective judgment by a public official,” and are “uniformly verifiable by reference to an external and uniform benchmark or criterion available and knowable by both the development applicant and the public official.” Government Code § 66300(a)(7).
Tip: One practical way to determine if a standard is “objective” is to ask whether the applicant could know, with certainty, whether her project complies with the standard without talking to anyone in the Planning Department. Examples of standards that are not objective (according to recent case law) include requirements that a site must be “physically suitable for the proposed development” or that if building height varies by more than one story between buildings, “a transition or step in height is necessary.”
Word of Caution: Cities and counties are not entitled to deference if they determine that a proposed housing development project is inconsistent with objective standards. In fact, the project will be “deemed consistent” with plans and policies “if there is substantial evidence that would allow a reasonable person to conclude that the housing development project is consistent, compliant or in conformity.” Government Code § 65589.5(f)(4). This is a very different standard than the one that is applicable when a city or county finds a project is consistent or inconsistent with its general plan, for example. If staff or elected officials interpret a standard as allowing multiple avenues for compliance, those interpretations could be used as evidence that the standard is subjective, not objective, or that a reasonable person could have found the applicant’s proposal to be consistent with the standard. See California Renters Legal Advocacy and Education Fund v. City of San Mateo (2021) 68 Cal.App.5th 820, 839–842. As a result, planners should take extra care when determining whether a project is consistent with objective standards.
Second Word of Caution: If a project receives a waiver of an objective standard because it qualifies under state density bonus law, the local government cannot find the project inconsistent with that standard for purposes of the Housing Accountability Act.
What do I do if a project is inconsistent with one or more “objective standards”?
Local agencies must notify an applicant of any inconsistencies with objective standards within 30 days of the full application being determined to be complete if the project has 150 or fewer units, or within 60 days, if the project has more than 150 units. The local agency must include all inconsistencies in this notification; any inconsistency that is not noted in a timely way cannot be used as the basis for denying a project.
Tip: Because of the tight timeline for advising applicants of inconsistencies, it is very useful for a local agency to have a table of “objective” standards from its general plan, municipal code, and other planning documents that could be applicable to a housing development project.
What if the project changes after the preliminary application is submitted?
If the revisions change the number of residential units or square footage by 20% or more, then the local government can apply current development standards, rather than those standards in place at the time of the preliminary application. Government Code § 65589.5(o)(2)(E). If the revisions do not change the project in this way, the local government must still apply the standards in effect at the time the preliminary application was submitted.
Word of caution: SB 330 also added Government Code section 66300, which limits the kinds of new development standards cities and counties can adopt going forward—even objective ones. In particular, cities and counties cannot adopt new policies or standards that would reduce residential density or intensity of use below what was allowed on January 1, 2018, unless they increase density/intensity elsewhere to maintain the same net residential capacity.
What if the project changes after the time has expired to notify the applicant of inconsistencies with objective standards?
While the statute does not provide guidance on this, some jurisdictions have taken the approach that the local agency has another 30 or 60 days to advise the applicant about new inconsistencies with objective standards resulting from the changes.
Is there any role for development standards that are not objective?
Because many cities and counties developed their general plans and zoning codes before state law limited their ability to deny housing projects that are consistent with “objective standards,” many of these planning documents are full of “subjective” design criteria. These subjective criteria were frequently helpful to both planners and applicants, as they provide flexibility to work out design issues as they arise in the application process. In the wake of recent changes to the Housing Accountability Act, however, staff and decisionmakers are left wondering whether they can still enforce standards that are not objective.
In fact, these subjective standards can still play an important role in processing a housing development application. While a city may not be able to deny a project for failing to comply, it can adopt conditions of approval that implement these standards, provided those conditions do not require the applicant to reduce the number of residential units and do not make the project economically infeasible.
Word of Caution: SB 330 prohibits cities with more than 5,000 people in an urbanized area from imposing or enforcing subjective design standards established after January 1, 2020. See Government Code § 66300.
I’ve heard about SB 330’s “5 hearing” limit. What counts as a hearing?
SB 330 provides that a city or county may not conduct more than five hearings on a housing development project after the application is deemed complete. Government Code § 65905.5. Under the statute, as revised by SB 8, a “hearing” includes “any public hearing, workshop, or similar meeting, including any appeal, conducted by the city or county” with respect to the project. Government Code § 65905.5. Local governments cannot circumvent this limit by “continuing” one hearing to a later date; the statute specifically states that such a continuance will count as a separate hearing.
Under SB 330, a “hearing” does not include a hearing to review a legislative approval required for a proposed housing development project, such as a general plan amendment, specific plan adoption or amendment, or a zoning amendment. However, since the five-hearing rule only applies to projects that comply with applicable, objective general plan and zoning standards, it seems unlikely that a jurisdiction would both be subject to the five-hearing limit and be required to hold legislative hearings.
For more information, HCD has a prepared a “Housing Accountability Act Technical Assistance Advisory, available here. Note that this advisory does not include SB 8’s amendments to the Housing Accountability Act.
Contact Winter King for more information about how SB 330 applies to housing development projects.