January 21, 2021

Volume XI, Number 21

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January 19, 2021

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California Housing Legislation Effective in 2021

The California Legislature made modest gains on housing production and stimulus bills in 2020, and there are several notable bills that took effect on January 1, 2021.  The new laws tackle COVID-19, project permit streamlining and planning, residential density bonus, and the California Environmental Quality Act (“CEQA”).  Below is a summary of these new laws.

Additionally, the Legislature is revisiting some of the signature housing production bills that failed in October.  For example, Senate Bill (“SB”) 6 would allow housing developments as a permitted use in commercial zones, and SB 9 would allow for duplexes and lot splits in single-family residential zones to be allowed by-right.  We will continue to monitor their progress and provide updates as soon as we can.

COVID-19 Responses

Assembly Bill (“AB”) 3088 – COVID-19 Emergency Relief (Chiu) would, between September 1, 2020 and January 31, 2021, protect tenants from evictions due to COVID-19 related financial hardship, provided that the tenant pays at least 25% of the rent due to the landlord.  Landlord may eventually recover all unpaid rent from the tenant in small claims court, but it can never be the basis for an eviction.

AB 1561 – Housing Entitlement Extension (Garcia) would extend by 18 months the period for the expiration, effectuation or utilization of a housing entitlement that was issued before, and was in effect on March 4, 2020, and that will expire before December 31, 2021.  Housing entitlements include discretionary and ministerial approvals from a state or local agency, but exclude development agreements, a preliminary application under SB 330, and an application for a SB 35 permit.

Density

AB 2345 – Density Bonus Law (Gonzalez and Chiu) allows local jurisdictions the authority to grant additional concessions/incentives above and beyond what is currently provided under state Density Bonus Law, including the increase of the maximum density bonus to up to 50% based on an updated sliding scale of housing affordability.  Proposed changes also include a uniform method to measure the distance between a major transit stop and a project location in order to maximize the number of eligible properties within a half-mile radius of a major transit stop.  Lastly, the bill proposes to reduce maximum parking requirements for specified eligible projects, and would eliminate parking requirements for 100% affordable projects and senior housing projects that meet specified criteria.

Streamlining Housing Approvals

AB 1851 – Parking Lot of Religious Institutions (Wicks) prohibits a local jurisdiction from denying a housing development project proposed by a religious institution, or a developer working with a religious institution, solely on the basis that the project will reduce the total number of parking spaces available at the place of worship, provided that the total reduction does not exceed 50% of existing parking spaces.  The bill would authorize a local jurisdiction to require up to one parking space per unit for a religious institution affiliated housing project.

AB 3182 – Right to Rent in HOAs / ADU Permits (Ting) prohibits a Home Owners Association (“HOA”) from adopting or enforcing a provision that restricts the rental or lease of a house or condo, except that the HOA may restrict short-term rentals of 30 days or less.  The bill would deem a permit application for the creation of an accessory dwelling unit (“ADU”), or junior accessory dwelling unit (“JADU”), approved if the local agency has not acted upon the completed application within 60 days.

AB 831 – Modifications and Clarifications to SB 35 (Grayson) makes a number of amendments to SB 35, which allows qualifying housing and mixed-use projects to qualify for a streamlined, ministerial CEQA- exempt approval process if the project meets the local government’s objective zoning and design review standards, provides a specific minimum number of affordable housing units, agrees to pay prevailing wages, and meets other qualifying criteria.  Most importantly, AB 831 amends SB 35 to help ensure that cities do not use post-entitlement review processes to avoid the intent of SB 35’s ministerial approval process.

AB 168 – Tribal Resources (Aguiar-Curry) requires local governments to conduct a scoping consultation with Native American Tribes before processing a SB 35 application to determine if the proposed development could impact a potential tribal cultural resource.  The bill would make a proposed project ineligible for streamlining under SB 35 if the Native American Tribe does not agree that no potential tribal cultural resource would be affected by the proposed development.

SB 1030 – Housing Omnibus (Wiener) provides minor technical fixes to existing housing legislations.  For example, the bill would revise the definition of “deemed complete” under the Housing Accountability Act (SB 330) to include the submission of a completed application if the applicant has not submitted a preliminary application.

Planning

AB 725 – Housing Element Location Designation Requirements (Wicks) imposes new requirements for city housing element updates that are required to be prepared under the already underway sixth cycle of the Regional Housing Needs Assessment (“RHNA”) process. Existing RHNA requirements mandate designation of adequate overall housing sites to accommodate RHNA housing growth, as well as designation of adequate housing sites for low income and other specified subcategories of housing.  AB 725 requires that cities designate sites to meet at least 25% of a jurisdiction’s share of the regional housing need for moderate-income housing, and at least 25% of a jurisdiction’s share of the regional housing need for above moderate-income housing.  For these sites, zoning that allows at least 4 units of housing, but not more than 100 units per acre of housing, is required.

CEQA

SB 288 – New CEQA Exemption for Sustainable Transportation Projects (Weiner) creates a new CEQA exemption for certain classes of qualifying transit-related projects until January 1, 2023. To qualify, the project must be carried out by a public agency, be located in an urbanized area and within an existing public right-of-way, not require demolition of affordable housing units, be completed by skilled and trained workforces, and not entail adding physical infrastructure that would increase new automobile capacity.

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Copyright © 2020, Sheppard Mullin Richter & Hampton LLP.National Law Review, Volume XI, Number 11
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About this Author

Alfred Fraijo, real estate, land use, natural resources attorney, Sheppard
Partner

Alfred Fraijo is a partner in the Real Estate, Land Use and Natural Resources practice group in the firm's Los Angeles office.  He is a leader of the firm's Latin America Practice Group, a global initiative to provide specialized legal representation to Hispanic/Latino-owned companies and companies focused on the U.S. Latino market.

Areas of Practice

Mr. Fraijo grows his expertise on cutting edge real estate transactions for public, private and nonprofit developers and multi-national corporations in the United States and abroad.  He recently was featured in "...

213-617-5567
Kira N. Teshima, Sheppard Mullin Law Firm, Real Estate Attorney
Associate

Kira Teshima is an associate in the Real Estate, Environmental, and Land Use and Natural Resources Practice Group in the firm's Los Angeles office. 

Ms. Teshima’s practice focuses on land use and real estate matters. Ms. Teshima assists developers, large and small businesses, property owners and other private parties in complying with the California Environmental Quality Act (CEQA) and planning and zoning regulations; obtaining and negotiating development entitlements and regulatory approvals; drafting real estate transactional documents and...

213-617-4234
Yue Shi Real Estate Attorney Sheppard Mullin Law
Associate

Yue Shi is an associate in the Real Estate, Land Use and Environmental Practice Group in the firm's Los Angeles office.

Areas of Practice

Yue focuses his practice on land use and real estate matters. Yue assists developers, large and small businesses, property owners and other private parties in complying with planning and zoning regulations; obtaining and negotiating development entitlements and regulatory approvals; drafting real estate transactional documents and easements; and government advocacy. Yue advises clients on several state and federal land use...

213-517-4256
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