New State Laws Enable Small Scale Housing and Further Disrupt Local Control
Late last week, Governor Gavin Newsom signed into law three bills, Senate Bills (SB) 8, 9, and 10, intended to expand housing production, streamline housing permitting, and increase density. Some are heralding these laws as a win for small scale housing development, while other rue the further erosion of local control.
The most controversial bill, SB 9, allows duplexes on parcels zoned for single-family residential use, requiring that applications for such projects be considered ministerial if they meet certain requirements. SB 9 also mandates ministerial approval of parcel maps for urban lot splits that meet similar requirements. This means a lot containing a single family home today may contain two duplexes (4 units) in the near future. Though some are ringing alarm bells about the end of single family zoning in California and the destruction of neighborhoods, implementation will be much more nuanced.
Analysis by the Terner Center for Housing Innovation at UC Berkeley estimates that SB 9 would likely enable new development on only 5.4% of the state’s 7.5 million single-family parcels, concluding that rather than changing the character of single family neighborhoods, SB 9 would allow “slightly more units on parcels where development already makes sense.” Moreover, SB 9 contains numerous restrictions on where and how it can be used, including a prohibition in historic districts or for properties designated as historic, in rural areas, for housing subject to rent control or an affordability covenant, or housing occupied by a tenant in the last three years. In addition, SB 9 does not supersede the need to get a Coastal Development Permit for those properties in the Coastal Zone, and owners of lot splits lots must live at the site for at least three years after the lot split.
While SB 8 (discussed below) and 9 largely remove local control for certain housing projects, SB 10 allows pro-development local governments to rezone any parcel for up to ten residential units at a height specified in the ordinance if the parcel is located in a transit-rich urban area. Importantly, such rezonings are not subject to the California Environmental Quality Act (CEQA). However, if the post-zoning housing project is discretionary, it would be subject to CEQA, which could limit the usefulness of SB 10 depending on local rules. Regardless, it is another tool to help local governments achieve their housing goals.
SB 8 clarifies the applicability of existing law (commonly known as SB 330) that provides streamlining and protections to housing development projects and imposes strict requirements to replace existing units occupied by lower income households. Since 2019, many jurisdictions, including the City of Los Angeles, have applied SB 330 only to discretionary projects. Thus, ministerial or by-right projects have not been able to take advantage of accelerated permit processing or had to replace units. While ministerial projects can now take advantage of SB 330’s protections, they will now have to replace existing units at the same income level in the new development, which could make small projects infeasible.
SB 8, 9 and 10 take effect January 1, 2022.
If you have specific questions about your particular situation or project, please do not hesitate to contact us for assistance.