Governor’s “By Right” Bill Threatens to Eliminate Local Control over Residential Development

August 1, 2016

When it returns from its recess, the California Legislature will consider Trailer Bill 707—a proposal by Governor Brown’s office to require “by right” approval of certain residential developments. As the bill would greatly limit local control over land use, its effects would be far reaching. Cities and counties should review the legislation and its implications for their communities to determine whether they wish to take a position on the bill and, if it becomes law, make plans to amend their general plans or zoning codes in light of the bill’s requirements. This article provides an overview of the bill as of August 9, 2016; the full text is available online here. We expect the bill may be modified as it moves through the legislative process.

In broad terms, the bill would require approval without local discretionary review (e.g., a conditional use permit, discretionary building permit, or discretionary design review) of a housing development that meets all of the following criteria:

The project consists of two or more units of attached housing (e.g., townhomes, apartments, condos, etc., which may be part of a mixed use development);
The project includes a minimum amount of affordable housing:
either 5% of units that are affordable to very low income households or 10% of units that are affordable to lower income households (in “transit priority areas”); or

20% of units affordable to individuals whose income is 80% or less of gross county median income (outside of “transit priority areas”);
The project is adjacent to a site (a) that contains residential, commercial, or public institutional development or (b) for which at least 75% of the perimeter of the site adjoins parcels developed with urban uses or is bounded by a natural water body; and
The project is consistent with “objective” general plan/zoning standards (e.g., density, height, and setback requirements that involve no personal or subjective judgment by the public official and that are uniformly verifiable).

The bill includes some restrictions on where “by right” development may be located. For example, a project cannot be located on prime farmland and cannot be located in a mapped floodplain, fire hazard area, earthquake zone, wetland, or hazardous waste site, unless mitigation measures have been adopted that address development in those areas. The bill would also require no net loss of affordable housing where a new development would displace units that had been restricted to or occupied by lower or very low income households.

Notwithstanding these limits, the bill’s reach would be extremely broad. For example, the definition of “urban uses” includes any site that contains a house; therefore any site adjacent to a parcel that contains a house would meet the bill’s requirement that it be adjacent to an “urban” use. The bill’s definition of a “transit priority area” includes any parcels that are located within half a mile from major transit stop, which can include an existing or planned bus stop that provides 15 minute service during weekday peak hours and provides weekend service. Projects that are not located in a transit priority area also qualify, but must include a higher percentage of affordable housing—though the criteria for affordability in non-transit priority areas are looser.

If a project qualifies for “by right” approval, the bill would prohibit local governments from conducting any discretionary review such as ensuring consistency with general plan or zoning requirements that require any exercise of judgment by local officials. The bill would also prevent local agencies from conducting any environmental review of a project under CEQA or including any measures to address the project’s environmental impacts. The bill’s wording also seems to preempt the application of any other provision of law, which could include the Coastal Act, Porter Cologne (which might otherwise regulate discharges from construction and development to waters of the state), or California’s Clean Air Act (which sets state ambient air quality standards that could apply to air emissions from construction or indirect sources related to the development). The bill would also prohibit any design review that would interfere with the ministerial review of a qualifying project. Finally, the bill establishes very short time frames for public agency review of projects—requiring the agency to either approve the project or determine it is inconsistent with an objective planning standard within 30 days of an application’s submittal. This timeline and the elimination of CEQA review would effectively preclude meaningful public participation in the project review process.

Local governments concerned about the bill’s effect on their land use authority should contact their legislators. If some version of the bill becomes law, local governments may also want to consider how they could update their general plans and zoning ordinances to ensure that they include “objective” land use requirements that protect community values and apply to new projects that would otherwise be permitted “by right.”

For more information, please contact SMW attorney Ellison Folk.

This article is intended for information purposes only and is not legal advice. This article is not intended to be a source of solicitation. This article is intended, but is not promised or guaranteed, to be correct, complete, and up-to-date. This article does not constitute a guarantee, warranty, or prediction regarding the outcome of any legal matter. Readers should not act on the information provided in this article without seeking professional legal counsel.