On January 1, 2020, several housing-related bills recently signed into law by the Governor take effect. We will explain the upcoming changes in housing law through a series of updates. Our first update (linked here) provided information regarding tenant protections (Assembly Bill 1482). Our second update (linked here) focused on changes to the permitting and approval process for housing developments (Senate Bill 330). This third update focuses on a new law designed to further facilitate and expedite the permit review of certain housing developments.

Streamlining Housing Development (Assembly Bill 1485)

Assembly Bill 1485, authored by Assembly member Buffy Wicks (D-Oakland), adds an additional class of projects that qualify for streamlined project approval and clarifies existing law under Senate Bill 35 (California Government Code Section 65913.4). SB 35, which was adopted in 2017, required local entities to approve certain housing projects through a ministerial approval process within specified timeframes, removed the requirement for analysis under the California Environmental Quality Act (CEQA), and removed the requirement for Conditional Use Authorization or other similar discretionary entitlements granted by a Planning Commission. SB 35 projects must also commit to paying prevailing wages to construction workers.

Under SB 35, housing development projects that seek a streamlined permitting process are subject to affordable housing requirements based on several factors, including whether a locality submitted its latest production report to the Department of Housing and Community Development (HCD) by the required time period, and whether a locality has issued a sufficient number of building permits to address that locality’s share of the regional housing needs, by income category, for that reporting period.

To determine a jurisdiction’s affordable housing requirement under SB 35, click here for the SB 35 Statewide Determination Summary as of June 2019. Projects located in San Francisco, for example, are subject to a requirement that at least 50% of the units be affordable to households making up to 80% of the Area Median Income (AMI) for either rental or ownership projects.

New Under AB 1485

Given the difficulty developers face in meeting these high affordability requirements (unless they are publicly subsidized projects), AB 1485 adds a new class of eligible projects that will qualify for streamlined approval under SB 35. The new class of eligible projects must be located in Bay Area cities or unincorporated areas (Counties of Alameda, Contra Costa, Marin, Napa, San Mateo, Santa Clara, Solano, Sonoma, and San Francisco) that did not submit its latest production report to HCD or, if one was submitted, that the production report reflects that there were fewer building permits issued for units of above-moderate-income housing (120% of AMI) than were required for the regional needs assessment cycle for that reporting period. Under AB 1485, these Bay Area projects containing 10 or more units that provide 20% affordable housing to households making below 120% AMI, with the average income of the units at or below 100% of AMI, will qualify for the streamlined project approval process.

Additionally, AB 1485 provides that any units used to satisfy the affordable housing requirements under Section 65913.4 (i.e., SB 35/AB 1485) can also be used to satisfy any other local or state inclusionary affordable housing requirement, including the State Density Bonus Law. Further, AB 1485 permits developers to satisfy the affordable housing requirement with units that are restricted to households with incomes lower than the applicable income limits required in the bill.

(Note: If a jurisdiction has adopted an ordinance requiring a greater dedication of affordable housing, or requires that any of the units be dedicated at a deeper level than under AB 1485, the local ordinance applies.)

AB 1485 also amends/clarifies Section 65913.4 as follows:

• Extends the period for which some types of SB 35 project approvals remain valid.
• Jurisdictions face penalties under the Housing Accountability Act for failure to lawfully approve SB 35 projects.
• A development shall be deemed consistent with objective planning standards if there is substantial evidence that would allow a reasonable person to conclude that the development is consistent with such objective planning standard. Any permits subsequent to the streamlined, ministerial approval (e.g., demolition, grading, building permits, or final map) are required to be issued if the application substantially complies with the development as it was approved.
• Transit Oriented Developments on land owned by the San Francisco Bay Area Transit District (BART) shall receive ministerial approval and not be subject to the California Environmental Quality Act (CEQA).

For more information on AB 1485, click here. Stay tuned, as we will next cover Assembly Bill 68 regarding Accessory Dwelling Units.