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SB-10 Planning and zoning: housing development: density.(2021-2022)

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Date Published: 06/14/2021 09:00 PM
SB10:v93#DOCUMENT

Amended  IN  Assembly  June 14, 2021
Amended  IN  Senate  May 26, 2021
Amended  IN  Senate  April 27, 2021
Amended  IN  Senate  April 13, 2021
Amended  IN  Senate  March 22, 2021
Amended  IN  Senate  February 24, 2021

CALIFORNIA LEGISLATURE— 2021–2022 REGULAR SESSION

Senate Bill
No. 10


Introduced by Senator Wiener
(Principal coauthors: Senators Atkins, Caballero, and Skinner)
(Principal coauthor: Assembly Member Robert Rivas)

December 07, 2020


An act to add and repeal Section 4752 of Section 4752 to the Civil Code, and to add and repeal Section 65913.5 of Section 65913.5 to the Government Code, relating to land use.


LEGISLATIVE COUNSEL'S DIGEST


SB 10, as amended, Wiener. Planning and zoning: housing development: density.
The Planning and Zoning Law requires a city or county to adopt a general plan for land use development within its boundaries that includes, among other things, a housing element. Existing law requires an attached housing development to be a permitted use, not subject to a conditional use permit, on any parcel zoned for multifamily housing if at least certain percentages of the units are available at affordable housing costs to very low income, lower income, and moderate-income households for at least 30 years and if the project meets specified conditions relating to location and being subject to a discretionary decision other than a conditional use permit. Existing law provides for various incentives intended to facilitate and expedite the construction of affordable housing.
Existing law, the Davis-Stirling Common Interest Development Act, governs the management and operation of common interest developments. Existing law makes void and unenforceable any covenant, restriction, or condition contained in any deed, contract, security instrument, or other instrument affecting the transfer or sale of any interest in a planned development, and any provision of a governing document, that effectively prohibits or unreasonably restricts the construction or use of an accessory dwelling unit or junior accessory dwelling unit on a lot zoned for single-family residential use that meets specified standards.
This bill would, notwithstanding any local restrictions on adopting zoning ordinances, authorize a local government to adopt an ordinance to zone any parcel for up to 10 units of residential density per parcel, at a height specified in the ordinance, if the parcel is located in a transit-rich area or an urban infill site, as those terms are defined. The bill would prohibit a local government from adopting an ordinance pursuant to these provisions on or after January 1, 2029. The bill would specify that an ordinance adopted under these provisions, and any resolution to amend the jurisdiction’s General Plan, ordinance, or other local regulation adopted to be consistent with that ordinance, is not a project for purposes of the California Environmental Quality Act. The bill would impose specified requirements on a zoning ordinance adopted under these provisions, including a requirement that the zoning ordinance clearly demarcate the areas that are subject to the ordinance and that the legislative body make a finding that the ordinance is consistent with the city or county’s obligation to affirmatively further fair housing. The bill would prohibit an ordinance adopted under these provisions from reducing the density of any parcel subject to the ordinance and would prohibit a legislative body that adopts a zoning ordinance pursuant to these provisions from subsequently reducing the density of any parcel subject to the ordinance. The bill would prohibit a residential or mixed-use residential project consisting of 10 or more units that is located on a parcel zoned pursuant to these provisions from being approved ministerially or by right or from being exempt from the California Environmental Quality Act, except as specified. The bill would repeal these provisions on January 1, 2029.
This bill would, until January 1, 2029, would make void and unenforceable any covenant, restriction, or condition contained in any deed, contract, security instrument, or other instrument affecting the transfer or sale of any interest in a planned development, and any provision of a governing document, that effectively prohibits or unreasonably restricts a use or density authorized by an ordinance adopted pursuant to the provisions described above. The bill would provide that it does not apply to provisions that impose reasonable restrictions, as defined, that do not make the implementation of an above-described ordinance infeasible.
This bill would include findings that changes proposed by this bill address a matter of statewide concern rather than a municipal affair and, therefore, apply to all cities, including charter cities.
Vote: MAJORITY   Appropriation: NO   Fiscal Committee: NO   Local Program: NO  

The people of the State of California do enact as follows:


SECTION 1.

 Section 4752 is added to the Civil Code, to read:

4752.
 (a) Any covenant, restriction, or condition contained in any deed, contract, security instrument, or other instrument affecting the transfer or sale of any interest in a planned development, and any provision of a governing document, is void and unenforceable if it effectively prohibits or unreasonably restricts a use or density authorized by an ordinance adopted pursuant to Section 65913.5 of the Government Code.
(b) This section does not apply to provisions that impose reasonable restrictions that do not make the implementation of Section 65913.5 of the Government Code infeasible. For purposes of this subdivision, “reasonable restrictions” means restrictions that do not unreasonably increase the cost to construct, effectively prohibit the construction of, or extinguish the ability to otherwise construct residential housing in a manner authorized by an ordinance adopted pursuant to Section 65913.5 of the Government Code.
(c) The Legislature finds and declares that ensuring the adequate production of affordable housing is a matter of statewide concern and that this section serves a significant and legitimate public purpose by eliminating potential restrictions that could inhibit the production of affordable housing.

(d)This section shall remain in effect only until January 1, 2029, and as of that date is repealed.

SEC. 2.

 Section 65913.5 is added to the Government Code, to read:

65913.5.
 (a) (1) Notwithstanding any local restrictions on adopting zoning ordinances enacted by the jurisdiction, including restrictions enacted by a local voter initiative, that limit the legislative body’s ability to adopt zoning ordinances, a local government may adopt an ordinance to zone a parcel for up to 10 units of residential density per parcel, at a height specified by the local government in the ordinance, if the parcel is located in one of the following:
(A) A transit-rich area.
(B) An urban infill site.
(2) A local government shall not adopt an ordinance pursuant to this subdivision on or after January 1, 2029. However, the operative date of an ordinance adopted under this subdivision may extend beyond January 1, 2029.

(2)

(3) An ordinance adopted in accordance with this subdivision, and any resolution to amend the jurisdiction’s General Plan, ordinance, or other local regulation adopted to be consistent with that zoning ordinance, shall not constitute a “project” for purposes of Division 13 (commencing with Section 21000) of the Public Resources Code.

(3)

(4) Paragraph (1) shall not apply to parcels located within a very high fire hazard severity zone, as determined by the Department of Forestry and Fire Protection pursuant to Section 51178, or within a high or very high fire hazard severity zone as indicated on maps adopted by the Department of Forestry and Fire Protection pursuant to Section 4202 of the Public Resources Code. This paragraph does not apply to sites that have adopted fire hazard mitigation measures pursuant to existing building standards or state fire mitigation measures applicable to the development.
(b) A legislative body shall comply with all of the following when adopting a zoning ordinance pursuant to subdivision (a):
(1) The zoning ordinance shall include a declaration that the zoning ordinance is adopted pursuant to this section.
(2) The zoning ordinance shall clearly demarcate the areas that are zoned pursuant to this section.
(3) The legislative body shall make a finding that the increased density authorized by the ordinance is consistent with the city or county’s obligation to affirmatively further fair housing pursuant to Section 8899.50.
(c) (1) Notwithstanding any other law that allows ministerial or by right approval of a development project or that grants an exemption from Division 13 (commencing with Section 21000) of the Public Resources Code, a residential or mixed-use residential project consisting of more than 10 new residential units on one or more parcels that have been zoned to permit residential development are zoned pursuant to subdivision (a) an ordinance adopted under this section shall not be approved ministerially or by right and shall not be exempt from Division 13 (commencing with Section 21000) of the Public Resources Code.
(2) This subdivision shall not apply to a project located on a parcel or parcels that are zoned pursuant to an ordinance adopted under this section, but subsequently rezoned without regard to this section. A subsequent ordinance adopted to rezone the parcel or parcels shall not be exempt from Division 13 (commencing with Section 21000) of the Public Resources Code. Any environmental review conducted to adopt the subsequent ordinance shall be based on the zoning applicable to the parcel or parcels before they were zoned or rezoned pursuant to the ordinance adopted under this section.

(2)

(3) The creation of up to two accessory dwelling units and two junior accessory dwelling units per parcel pursuant to Sections 65852.2 and 65852.22 of the Government Code shall not count towards the total number of units of a residential or mixed-use residential project when determining if the project may be approved ministerially or by right under paragraph (1).

(3)

(4) A project may not be divided into smaller projects in order to exclude the project from the prohibition in this subdivision.
(d) (1) An ordinance adopted pursuant to this section shall not reduce the density of any parcel subject to the ordinance.

(d)

(2) A legislative body that adopts a zoning ordinance pursuant to this section shall not subsequently reduce the density of any parcel subject to the ordinance.
(e) For purposes of this section:
(1) “High-quality bus corridor” means a corridor with fixed route bus service that meets all of the following criteria:
(A) It has average service intervals of no more than 15 minutes during the three peak hours between 6 a.m. to 10 a.m., inclusive, and the three peak hours between 3 p.m. and 7 p.m., inclusive, on Monday through Friday.
(B) It has average service intervals of no more than 20 minutes during the hours of 6 a.m. to 10 a.m., inclusive, on Monday through Friday.
(C) It has average intervals of no more than 30 minutes during the hours of 8 a.m. to 10 p.m., inclusive, on Saturday and Sunday.
(2) “Transit-rich area” means a parcel within one-half mile of a major transit stop, as defined in Section 21064.3 of the Public Resources Code, or a parcel on a high-quality bus corridor.
(3) “Urban infill site” means a site that satisfies all of the following:
(A) A site that is a legal parcel or parcels located in a city if, and only if, the city boundaries include some portion of either an urbanized area or urban cluster, as designated by the United States Census Bureau, or, for unincorporated areas, a legal parcel or parcels wholly within the boundaries of an urbanized area or urban cluster, as designated by the United States Census Bureau.
(B) A site in which at least 75 percent of the perimeter of the site adjoins parcels that are developed with urban uses. For the purposes of this section, parcels that are only separated by a street or highway shall be considered to be adjoined.
(C) A site that is zoned for residential use or residential mixed-use development, or has a general plan designation that allows residential use or a mix of residential and nonresidential uses, with at least two-thirds of the square footage of the development designated for residential use.
(f) The Legislature finds and declares that ensuring the adequate production of affordable housing is a matter of statewide concern and is not a municipal affair as that term is used in Section 5 of Article XI of the California Constitution. Therefore, this section applies to all cities, including charter cities.

(g)This section shall remain in effect only until January 1, 2029, and as of that date is repealed.