November 4, 2021

Governor Newsom met the October 10 deadline to take action on measures approved by the Legislature and delivered to his desk. To keep counties informed of new laws that impact them, CSAC will be publishing a series of articles to spotlight those laws in each policy area. This week, the Housing, Land Use, and Transportation policy area provides information on new laws affecting housing and land use, permitting, transportation, and Tribal Intergovernmental Relations.

The new laws listed below become effective January 1, 2022 unless otherwise noted.

Housing and Land Use

AB 215 (Chiu) – Housing Element Violations: Increases the enforcement authority of the state Department of Housing and Community Development (HCD) in relation to violations of state housing law. AB 215 also requires cities and counties to make any draft revisions to their housing elements available for public comment for at least 30 days and requires HCD to review the draft and report its written findings to the planning agency within 90 days of receiving the first draft submittal for each housing element revision or within 60 days of its receipt for a subsequent draft amendment or adoption. The bill creates a new, three-year statute of limitations for any action brought pursuant to the enforcement process created under AB 72. Finally, the bill allows HCD to seek outside counsel should the Attorney General choose not to enforce a potential violation of state housing law.

AB 362 (Quirk-Silva) – Building Habitability Regulations for Homeless Shelters: Establishes a requirement for local governments to conduct inspections of homeless shelters when they receive complaints related to building habitability and creates enforcement processes and additional penalties. Requires a city or county that receives a complaint alleging that a homeless shelter has substandard housing issues to complete an inspection in a timely manner and to issue a notice to correct any violation within 10 business days of the inspection, or immediately if the violation constitutes an imminent threat to health and safety. Requires a city or county to provide free copies of any inspection report or citation pursuant to the bill to a complaining occupant or their agent. Requires the owner/operator of a homeless shelter to correct each violation within 30 days of receipt of the citation. Prohibits a city or county from distributing any state homeless shelter funding to the owner or operator of a shelter with outstanding violations and allows the state to make such an owner/operator ineligible for state homelessness funding. Requires local governments, if applicable, to report annually to HCD on any uncorrected violations, any emergency orders issued, and any owners/operators with 3 or more violations within any 6-month period.

AB 803 (Boerner-Horvath) – Starter Home Revitalization Act of 2021: Requires cities and counties to allow denser development of single-family housing if certain requirements are met. The bill authorizes a developer to submit an application for the construction of a small home lot development that meets specified criteria. AB 803 requires a small home lot development to be located on a parcel that is no larger than 5 acres and which is substantially surrounded by qualified urban uses and zoned for multifamily residential use. It also requires a small home lot development to meet a minimum unit requirement and to consist of single-family housing units with an average total area of floorspace of 1,750 net habitable square feet or less. AB 803 requires that the units comply with external existing height and setback requirements applicable to the multifamily site and with any local inclusionary housing ordinance. It prohibits the small home development on the proposed site from being subdivided if the development would require the demolition or alteration of specified types of housing and would prohibit a small home development on a site identified in the jurisdiction’s housing element to accommodate that jurisdiction’s regional housing need for low-income or very low-income households. AB 803 prohibits a local agency from imposing specified requirements on a small home lot development created pursuant to these provisions, including setback requirements between units within the small home lot development, requirements on the minimum size of each home, and specified parking requirements.

AB 571 (Mayes) – Affordable Housing Impact Fees: Prohibits affordable housing impact fees, including inclusionary zoning fees and in-lieu fees, from being imposed on a housing development’s affordable units.

AB 602 (Grayson)  – Residential Impact Fee Nexus Study Requirements: Makes significant changes to laws governing local residential development impact fee programs. Specifically, the bill requires local governments to update their nexus studies used to justify certain impact fees at least once every eight years; requires jurisdictions to base fee calculations on the square footage of individual residential units, unless the jurisdiction demonstrates that another metric is more appropriate. AB 602 also adds additional public hearing requirements and requires local agencies to make additional findings supporting their fee calculations and address evidence challenging the validity of their findings.

AB 838 (Friedman) — State Housing Law: Enforcement Response to Complaints: Makes several changes to local building code enforcement processes and procedures. Specifically, the bill requires local agencies to promptly complete an inspection when a violation of the State Housing Law or lead paint requirements is alleged and to provide free copies of the inspection report and any citations to the tenant. The bill includes exceptions when previous unfounded complaints were made and precludes local agencies from making the inspection or the report subject to any unreasonable conditions (e.g. requirements that the tenant be current on rent). AB 838 also limits fee recovery from individual property owners for inspections completed pursuant to this bill unless specified code violations are discovered.

SB 8 (Skinner) – Housing Crisis Act of 2019: Among other changes, SB 8 extends the sunset on SB 330, the Housing Crisis Act of 2019, by five years, to January 1, 2030. SB 330 imposed restrictions on certain types of development standards, amended the Housing Accountability Act and made changes to local approval processes and the Permit Streamlining Act. Until January 1, 2034, SB 8 also allows the SB 330’s provisions to apply to a housing project that submits a preliminary application before January 1, 2030. It also expands the definition of “housing development project,” to include both discretionary and ministerial projects, as well as projects to construct single units.

SB 9 (Atkins) – Housing Development Approvals: Requires ministerial approval of a housing development of no more than two units (duplex) in a single-family zone, the subdivision of a parcel zoned for residential use into two parcels (lot split), or both, in census-designated urbanized areas or urban clusters. A detailed summary of SB 9 is available in this Bulletin article.

SB 10 (Wiener) – Housing Density: Authorizes, until 2029, a city or county to pass an ordinance to zone any parcel for up to 10 units of residential density, at a height specified by the local government in the ordinance, if the parcel is located in a transit-rich area, which include areas near rail transit or bus routes with peak headways of 15 minutes or faster, or an urban infill site. The bill creates an exception to any locally-approved ballot measures that would otherwise preclude the council/board from completing such rezonings, except as related to a local ballot measure designating publicly-owned property for open space or recreational purposes and specifies that rezonings completed pursuant to the bill are not projects for purposes of CEQA.

B 478 (Wiener) – Housing Development Projects: Prohibits a local government from imposing certain floor area ratio (FAR) standards on housing projects of 3-10 units. For projects of three to ten residential units in a multifamily or residential mixed-use zone and not located in a single family zone or historic district, the bill precludes local agencies from imposing floor area ratio (FAR) standards except as follows:

• For three to seven units: FAR of at least 1.0
• For eight to ten units: FAR of at least 1.25

SB 478 also prohibits a local agency from denying a housing development project located on an existing legal parcel solely on the basis that the lot area of the proposed lot does not meet minimum lot size. Specifies that the bill only precludes local zoning standards that conflict with the above limitations. Declares conflicting covenants, conditions and restrictions (CC&Rs) null and void.

Miscellaneous Permitting

AB 537 (Quirk) – Wireless Telecommunications and Broadband Facilities: Updates existing law establishing a timeline and process through which wireless telecommunication siting facility permits are deemed approved. This bill requires that these time periods be determined pursuant to specified FCC rules. AB 537 requires that local governments notify applicants of the incompleteness of an application within the time periods established by applicable FCC rules. It also requires that the time period for a city or county to approve or disapprove a collocation or siting application commence when the applicant makes the first required submission or takes the first required step. The bill prohibits where a city or county requires a traffic control plan, or other submission or permit related to either obstruction or safety in the public right-of-way, the applicant from beginning construction before complying with that requirement, and the city or county would be prohibited from unreasonably withholding, conditioning, or delaying the approval of any submission related to this requirement. The bill would require that a city or county not prohibit or unreasonably discriminate in favor of, or against, any particular wireless technology.

AB 970 (McCarty) – Streamlined Permitting for Electric Vehicle Charging Stations: Establishes specific time frames in which local agencies must approve permits for electric vehicle charging stations. The bill requires electric vehicle charging stations to be deemed complete within five business days after an application is submitted and approved within 20 business days after submission of the application if the jurisdiction has not issued a permit and if the building official has not made findings that the proposed installation could have adverse impacts.

AB 1124 (Friedman) – Solar Energy System Permitting: Expands the definition of “solar energy system” to include facilities not installed on a building or structure on multiple properties, thereby arguably making commercial or utility-grade solar projects subject to only a ministerial review process by the local jurisdiction. This bill revises the definitions for “commercial permit fee” and “residential permit fee” for these types of solar energy systems, which limit permit fees that local governments may charge for these types of projects. AB 1124 defines “commercial permit fee” to mean the sum of all charges levied by a city, county, city, and county, or charter city in connection with the application for a commercial solar energy system, including, but not limited to, a solar energy system that is installed on the property of multifamily housing that has more than two-family dwellings. AB 1124 also revises the definition of “residential permit fee” to mean the sum of all charges levied by a city, county, city and county, or charter city in connection with the application for a solar energy system that is installed on the property of a single- or 2-family dwelling.

SB 378 (Gonzalez) – Microtrenching Permit Processing: Requires a local agency to allow microtrenching for the installation of underground fiber if the installation in the microtrench is limited to fiber, unless the agency makes a specified finding that permitting microtrenching for fiber would have a specific, adverse impact on public health and safety. The bill defines a “microtrench” as a narrow open excavation trench that is four inches or less in width and between 12 and 26 inches in depth created for installing a subsurface pipe or conduit. SB 378 allows, upon mutual agreement between a local government and an applicant, for a microtrench to be excavated shallower than 12 inches in depth. The bill also requires, to the extent necessary, a local agency with jurisdiction to approve excavations to adopt or amend existing policies, ordinances, codes, or construction rules to allow for microtrenching. It provides that these provisions do not supersede, nullify, or otherwise alter the requirements to comply with specified safety standards. It also authorizes local agencies to impose a fee for reasonable costs on an application for a permit to install fiber.

Transportation

AB 43 (Friedman) – Traffic Safety. Grants the California Department of Transportation (Caltrans) and local authorities greater flexibility in setting speed limits based on recommendations included in the January 2020 report prepared by the California State Transportation Agency’s Zero Traffic Fatalities Task Force. Allows local agencies to set speed limits based on safety-related factors. AB 43 authorizes Caltrans and local agencies, on streets where a 65-mph limit is applicable, to lower the speed limit to as low as 15 miles per hour pursuant to an engineering traffic survey. It also authorizes Caltrans and local agencies to round the 85^th percentile speed either up or down to the nearest 5 mph and authorizes local agencies that find that the speed limit is more than reasonable or safe, to reduce the speed limit by 5 mph by ordinance if the highway is designated as a safety corridor or the portion of the highway is adjacent to any land or facility that generates high concentrations of bicyclists or pedestrians, as determined by Caltrans. The bill also authorizes a local authority that finds that the resulting speed limit is higher than is reasonable or safe, to retain the current speed limit or restore the immediately prior speed limit if a registered engineer determines that no additional general-purpose lanes have been added to the roadway since completion of the engineering traffic survey that established the prior speed limit. AB 43 also allows a local authority, by ordinance, to declare a 25 mph or 20 mph speed limit in a business activity district when the highway has a maximum of four traffic lanes.

Tribal Intergovernmental Relations

SB 712 (Hueso) – Local government: California Tribes: Federal Fee-to-Trust Application: Imposes requirements on local governments regarding comments on fee-to-trust applications by California federally recognized tribes. Specifically, local agencies that oppose a fee-to-trust application must request and include in their comments to the United States Bureau of Indian Affairs any information received from the tribe related to the economic benefits provided by the tribe to the community. The bill prohibits local governments from adopting or enforcing a resolution or ordinance that would prevent the local government from conducting a fair evaluation of a fee-to-trust application by a federally recognized tribe based on the merits of the application, as defined. SB 712 also requires a local government that opposes an application to do the following:

• Request, by certified mail to the tribe, within 10 days of the notice of the application from the federal government, information on the economic benefits to the local government from both the project that is the subject of the application, if applicable, and the tribe’s economic contribution to the local jurisdiction in the last 5 years, and
• If the tribe provides the information within 10 days of the local government’s request, to include that information in any opposition letter or other document submitted to the federal government, as specified.

AB 1180 (Mathis) – Surplus Land Transfers to Federally-Recognized Tribes: Would expand the existing provision in the Surplus Lands Act (SLA) that exempts government to government transfers to include surplus land transfers to federally recognized California Indian Tribes. This would allow a local government to transfer surplus land to a federally recognized California Indian Tribe without triggering the procedures of the SLA.