SB 35 (Weiner) “By Right” Approval Processing. This law streamlines the approval process for infill developments in local communities that have failed to meet their regional housing needs.

a) Ministerial Approval Processing. The law authorizes a development proponent to submit an application for ministerial processing where a multifamily housing development satisfies specified planning objective standards and specified criteria. The law includes a long list of qualifying criteria, including payment of prevailing wages, use of a “skilled and trained workforce, and consistency with objective development standards. The law will apply only if it is shown in a housing production report (the first reports are due April 1, 2018) that a city is not achieving affordable housing targets. The law requires a local government to notify the development proponent in writing within 90 days of submittal (for projects of more than 150 units) if the local government determines that the development conflicts with any of those objective standards; otherwise, the development is deemed to comply with those standards. Design review or other public oversight of the development may still be conducted but is directed to the “objective and be strictly focused on assessing compliance with criteria required for streamlined projects, as well as reasonable objectives design standards published and adopted by ordinance or resolution by a local jurisdiction before submission of a development application, and shall be broadly applicable to development within that jurisdiction.” The design review or public oversight process must be completed within 180 days (for projects of more than 150 units) of submittal of the development.

b) Limitations on Local Government Imposition of Parking or Other Requirements for Qualifying Projects. The law limits the authority of a local government to impose parking standards on a streamlined development approved. The law also prohibits a local government from adopting any requirement that applies to a project solely or partially on the basis that the project receives ministerial or streamlined approval pursuant to SB 35.

c) Limitations on Approval Expiration. The law provides that if a local government approves a project pursuant to that process, that approval will not expire if that project includes investment in housing affordability where more than 50 percent of units are affordable. The approval of a project that contains less than 50 percent affordable units expires automatically after three years, unless that project qualifies for a one-time, one-year extension of that approval. Separately, the law provides that an approval shall remain valid for three years from the date of the final action establishing that approval and shall remain valid thereafter so long as vertical construction of the development has begun and is in progress; it also authorizes a discretionary one-year extension.

d) Local Government Housing Production Reporting. The law also requires local governments to include in the annual general plan report specified information regarding housing, including rental housing and for-sale housing that have been issued a completed entitlement, building permit or certificate of occupancy. The law also  requires local governments to report on the housing produced pursuant to SB 35’s requirements.

Legislative Discussion

California Senate Bill 35 (SB 35) is a statute streamlining housing construction in California counties and cities that fail to build enough housing to meet state-mandated housing construction requirements. The bill was introduced to the California State Assembly by State Senator Scott Wiener (D-SF) on December 15, 2016.SB 35 aims to address the California housing shortage by increasing the housing supply. The bill was signed into law on September 29, 2017, by Governor Jerry Brown as part of California’s 2017 Housing Package – a set of 15 bills that provide “an injection of new regulatory and financial resources” for cities.

Scott Wiener introduced SB 35 to increase the housing supply in cities that are not producing enough housing, by encouraging cities to either increase housing development on their own or be forced to accept housing development. After the bill’s passage, Wiener claimed: “SB 35 will retain local control for those cities that are producing their share of housing, but create a more streamlined path for housing creation in those cities that are blocking housing or ignoring their responsibility to build.”

SB 35 requires cities to include comprehensive rental market information in their biyearly housing element report and allows developers to submit an application subject to streamlined approval processes in municipalities not meeting Regional Housing Needs Assessments (RHNA).

The development must:  be on land zoned for residential use; designate at least 10% of units as below-market housing if located in localities that did not meet above moderate-income RHNA; designate at least 50% of units as below-market housing in localities that did not meet low-income RHNA; not be constructed in an ecologically protected area. multi-unit housing and not single-family homes; and pay construction workers union-level wages.

If the development meets all state-mandated criteria, localities must approve the project in either 60 days if the development contains less than 150 housing units or 90 days if the development contains more than 150 units of housing.

Cities will submit their housing construction progress to the California Department of Housing and Community Development (HCD) every 2 years. If the city fails to meet its RHNA goals at one of these progress checks, streamlining will be in effect for the entire next two-year cycle.SB 35 applies only to the specific income levels not being built for. For example, if a city is building enough market-rate units to meet its RHNA but not enough low-income units, the project can only add low-income units to qualify for quickened approval.