In response to the state's affordable housing crisis, California lawmakers are working on a potentially controversial plan proposed by Gov. Jerry Brown that would bypass local zoning restrictions.
Known as “by right” construction, the rules would supersede local zoning processes and guarantee developers the ability to build new housing projects if they meet basic affordability standards and are within existing zoning restrictions.
As currently written, the proposal applies to projects that are consistent with “objective general plan and zoning standards,” include multi-family housing, are surrounded by “urban uses” and not built on restricted property types such as farmland or hazardous waste sites.
The rules have an affordable housing element that requires 20 percent of the units to be affordable housing or 10 percent if the project is within a half-mile of an existing or planned transit stop.
In Santa Monica, a project that meets all of the state criteria could be removed from local review if it is between 35 and 50 feet in most parts of town or in rare cases, up to 84 feet if located downtown.
The proposal prohibits discretionary review; requiring cities to provide an administrative approval. It provides an expedited review process that gives cities 30 days to review a project from the time of its application and provide written approval of the projects compliance with zoning rules. Design review, such as hearings before the Architectural Review Board, would be limited to 90 days and could not interfere with the by-right approval of the project. No environmental review would be required but relocation assistance would be required if the project displaces current residents.
The difference between discretionary and administrative review is subjectivity.
An administrative process verifies the application adheres to pre-established criteria and if it does, it is automatically approved. Under a discretionary process, a project could be denied even if it met the established zoning rules.
Santa Monica's development process allows several boards and commissions to deny a project, with City Council serving as the final authority. The city's base zoning codes allow projects between 35 and 50 feet in most parts of town and 84 feet downtown. The state rules would automatically allow development under those heights.
A streamlined approval process appears to override at least part of the Land Use Voter Empowerment initiative that is scheduled to go before voters this year. LUVE would require voter approval for projects over 32 feet, all development agreements and any significant revisions to zoning rules, but the state rules would override voter approval of projects over 32 feet.
Ben Metcalf, director of the California Department of Housing and Community Development, said specific information regarding the interaction between the state proposal and any local law, such as LUVE, would be the product of a legal analysis provided after the rules were in place. That analysis would be provided by state attorneys and could result in a court case if one side or the other disagrees with the outcome.
Metcalf said the constitutional nexus between referendums, local ordinances and the governor's proposal is rife with complexity that will need to be resolved, but the rules are clearly designed to remove discretionary review processes.
Officials at the state Legislative Analyst's Office, the nonpartisan fiscal and policy advisor to the Legislature, said a plain reading of the governor's proposed language suggests that voter approval would be considered a “discretionary review” and therefore not allowed for projects that meet the eligibility criteria for streamlined approval. However, they too said the interaction would likely result in litigation.
The interaction between LUVE, local rules and the state proposal will also impact the Downtown Community Plan.
Zoning downtown was specifically excluded from the city's broader zoning documents pending adoption of the Downtown Community Plan. Development is currently managed by an interim ordinance that combines elements of 1984 and 1997 plans, but those rules will expire next year.
If LUVE passes, voters will have the ability to accept or reject the DCP. If it passes, the development standards outlined would become the base for by-right construction within the plan's borders. If rejected by voters, zoning would default to the older standards. The rules allow for 84 feet in height in a very small number of specific cases. General heights downtown would be between 56 and 76 feet but possibly twice as dense as current standards.
Even if the DCP passed, the by-right rules could prevent City Hall from requiring many kinds of community benefits from potential developments.
In addition to fast-tracking building permits, the legislation that passed the State Assembly this month on a 46-7 vote would waive some environmental reviews.
Brown's proposal seeks to bypass local politics and restrictions that legislators say have consistently blocked projects, contributing to the worst housing shortage in the nation.
The LAO praised the proposal, saying its only fault was potentially too strict rules relating to the affordable housing restriction.
“We also suggest the Legislature consider some modifications to strengthen and expand the Governor's proposal. Most notably, we suggest the Legislature expand the number of housing projects eligible for streamlined approval by lowering the affordability requirements developers must meet,” reads the LAO analysis of the proposal. “We also recommend changes to guard against possible actions some communities may take to hinder the use of streamlined approval.”
The by-right rules are contained in a budget rider and could be approved by June 15. The idea is based on several concepts including a similar proposal introduced by Assemblyman Richard Bloom (D-Santa Monica).
“I think there are a number of different things that are the intellectual heritage that it draws from and Bloom's bill is one of them,” Metcalf said.
Bloom's office declined to comment on the rules.
The legislation has faced strong opposition from some environmental groups and local activists who see it as an effort to weaken California's notoriously rigorous environmental quality law.
