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Housing Accountability Act Page 1 of 17 Office of the City Manager ACTION CALENDAR March 28, 2017 (Continued from February 28, 2017) To: Honorable Mayor and Members of the City Council From: Dee Williams-Ridley, City Manager Submitted by: Zach Cowan, City Attorney Subject: Housing Accountability Act INTRODUCTION At its meeting on November 14, 2016, the Agenda Committee requested a report on the Housing Accountability Act (Gov. Code § 65589.5; Attachment 1). CURRENT SITUATION AND ITS EFFECTS The City reviews and acts on many applications every year for development projects, including many residential and mixed-use projects. The Housing Accountability Act constrains the City’s discretion with respect to some of these projects. BACKGROUND The Housing Accountability Act was originally enacted in 1982 and has been amended a number of times over the years. The original legislation, now designated as subdivision (j) of Section 65589.5 now reads: (j) When a proposed housing development project complies with applicable, objective general plan and zoning standards and criteria, including design review standards, in effect at the time that the housing development project’s application is determined to be complete, but the local agency proposes to disapprove the project or to approve it upon the condition that the project be developed at a lower density, the local agency shall base its decision regarding the proposed housing development project upon written findings supported by substantial evidence on the record that both of the following conditions exist: (1) The housing development project would have a specific, adverse impact upon the public health or safety unless the project is disapproved or approved upon the condition that the project be developed at a lower density. As used in this paragraph, a “specific, adverse impact” means a significant, quantifiable, direct, and unavoidable impact, based on objective, identified written public health or safety standards, policies, or conditions as they existed on the date the application was deemed complete. 2180 Milvia Street, Berkeley, CA 94704 ● Tel: (510) 981-7000 ● TDD: (510) 981-6903 ● Fax: (510) 981-7099 E-Mail: manager@CityofBerkeley.info Website: http://www.CityofBerkeley.info/Manager Page 2 of 17 Housing Accountability Act . ACTION CALENDAR March 28, 2017 (2) There is no feasible method to satisfactorily mitigate or avoid the adverse impact identified pursuant to paragraph (1), other than the disapproval of the housing development project or the approval of the project upon the condition that it be developed at a lower density.1 For purposes of Section 65589.5, “housing development project” means a use consisting of residential units as well as mixed-use developments, provided that nonresidential uses are limited to “neighborhood commercial” uses and to the first floor of buildings that are two or more stories. “Neighborhood commercial” is defined as “small-scale general or specialty stores that furnish goods and services primarily to residents of the neighborhood.” “Housing development project” also includes “transitional housing or supportive housing”. In addition, “disapproving” a development project includes denying approval as well as failing to comply with the Permit Streamlining Act (Gov. Code §§ 65950 et seq.) Senator Greene, the author of the bill, stated that the intent of the legislation was to address the “problems in some cases where local governments adopt housing policies and then fail to comply with their own policies when specific projects are at stake. Presently, there is no effective remedy for the proponents of such a project. The obvious problem is that when developers of housing cannot rely on housing policies in proposing projects, then substantial uncertainty is created.” Other provisions of Section 65589.5 apply more specifically to projects containing below-market rate units (see subds. (d) and (k))2, but we focus here on the more generally-applicable provision, subdivision (j). Since its adoption in 1982, Section 65589.5(j) has been largely ignored. In part this was due to a belief that despite its language it only applied to projects that included below market rate units. This notion was effectively put to rest in Honchariw v. County of Stanislaus (2011)200 Cal.App.4th 1066, 1074-76. Subject to limited exceptions discussed below, Section 65589.5(j) requires local governments to approve any “housing development project”, including specified mixed- use projects, if they comply with “applicable, objective general plan and zoning standards and criteria, including design review standards, in effect at the time that the housing development project’s application is determined to be complete…” As Honchariw explained, this language was intended to “tak[e] away an agency’s ability to use what might be called a ‘subjective’ development ‘policy’ (for example, 1 The current language closely reflects the original language, but there have been some amendments to it as well. 2 These were discussed in a May 7, 2002, information report to the Council (Attachment 2.) Page 2 Page 3 of 17 Housing Accountability Act . ACTION CALENDAR March 28, 2017 ‘suitability’)” to deny a project or reduce it in density. Id. With respect to design review standards, the court went on to “interpret that phrase to mean design review standards that are part of ‘applicable, objective general plan and zoning standards and criteria.’” Id. at 1077. The City’s general plan and zoning ordinance contain “objective general plan and zoning standards and criteria”, such as lot development standards3 and in some cases density or building intensity standards. Section 65589.5(j) does not override these lot development standards; nor does it compel approval of projects that require discretionary approvals to exceed these standards, such as reductions in setbacks or additional stories. Rather, it overrides the use of policies like neighborhood compatibility or detriment when a project complies with all applicable lot development standards. Under Section 65589.5(j), a housing development project may be disapproved or reduced in density only if there is no other way to “satisfactorily mitigate or avoid” a “specific, adverse impact upon the public health or safety”. A “specific, adverse impact” “means a significant, quantifiable, direct, and unavoidable impact, based on objective, identified written public health or safety standards, policies, or conditions as they existed on the date the application was deemed complete.” It is important to note that the reference to “health or safety” standards is much narrower than the typical “health, safety and welfare” basis for general police power regulations. The City does not have such standards that are typically applicable to housing development projects. A few possible approaches to addressing the potential impacts of Section 65589.5(j) are: Amend the General Plan and Zoning Ordinance to adopt numerical density and/or building intensity standards that can be applied on a parcel-by-parcel basis in an easy and predictable manner. These would constitute reliable and understandable “objective general plan and zoning standards” that would establish known maximum densities. This could be done across the board or for specified districts. Devise and adopt “objective, identified written public health or safety standards” applicable to new housing development projects. Adopt “design review standards that are part of ‘applicable, objective general plan and zoning standards and criteria”. ENVIRONMENTAL SUSTAINABILITY No effect; compliance is mandated by statute. POSSIBLE FUTURE ACTION The Council may wish to revisit relevant zoning and/or general plan provisions. 3 Lot development standards include such things as setbacks, FAR limits, height limits, and parking requirements. Page 3 Page 4 of 17 Housing Accountability Act . ACTION CALENDAR March 28, 2017 FISCAL IMPACTS OF POSSIBLE FUTURE ACTION No action is required. If the Council wishes to revisit zoning and/or general plan provisions, the cost could be substantial. CONTACT PERSON Zach Cowan, City Attorney, 981-6950 Attachments: 1: Government Code section 65589.5 2: May 7, 2002 Information Report Page 4 Page 5 of 17 State of California GOVERNMENT CODE Section 65589.5 65589.5. (a) The Legislature ®nds and declares all of the following: (1) The lack of housing, including emergency shelters, is a critical problem that threatens the economic, environmental, and social quality of life in California. (2) California housing has become the most expensive in the nation. The excessive cost of the state's housing supply is partially caused by activities and policies of many local governments that limit the approval of housing, increase the cost of land for housing, and require that high fees and exactions be paid by producers of housing. (3) Among the consequences of those actions are discrimination against low-income and minority households, lack of housing to support employment growth, imbalance in jobs and housing, reduced mobility, urban sprawl, excessive commuting, and air quality deterioration. (4) Many local governments do not give adequate attention to the economic, environmental, and social costs of decisions that result in disapproval of housing projects, reduction in density of housing projects, and excessive standards for housing projects. (b) It is the policy of the state that a local government not reject or make infeasible housing developments, including emergency shelters, that contribute to meeting the need determined pursuant to this
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