Tag: Housing

CALIFORNIA ENACTS CEQA AMENDMENTS TO HELP FACILITATE HOUSING

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On June 30, 2025, Governor Newsom signed into law two bills, AB 130 and SB 131, which are intended as a multifaceted approach to address the state’s housing crisis. Among other things, the bills amend CEQA to reduce barriers to constructing new housing in the state.

AB 130

AB 130 exempts infill housing projects from CEQA review. The exemption requires tribal consultation to address impacts to tribal cultural resources. It also includes various requirements related to wages and labor, hazardous material sites, and air quality mitigation for projects near freeways. Projects must meet the following conditions to be exempt under AB 130:

  • The project is smaller than 20 acres, or 5 acres if the builder’s remedy applies.
  • The project is in an incorporated municipality or US Census-defined urban area.
  • The parcel previously had an urban use, 75% of the perimeter is parcels with urban uses, 75% of the area in a quarter mile radius of the site has urban uses, OR 3 out of 4 sides of a quadrilateral parcel and 2/3 of its perimeter have urban uses.
  • The project is consistent with the applicable general plan and zoning ordinance, based on substantial evidence that would allow a reasonable person to find the project consistent.
  • The project creates minimum housing density consistent with California zoning law. In metropolitan counties this would be at least 15 units per acre.
  • The project is not located on protected lands, such as certain coastal zones; prime farmland; wetlands; very high fire hazard severity zones; hazardous waste sites; earthquake fault zones; special flood hazard areas; regulatory floodways; land identified in a natural community conservation plan, habitat conservation plan, or other natural resource protection plan; habitat for protected species under the ESA, CESA, or Native Plant Protection Act; and conservation easements.
  • The project does not require demolition of a registered historic structure.
  • The project does not include a hotel, motel, bed and breakfast inn, or other transient lodging, other than a residential hotel or short-term lodging (Airbnb and similar).

Additionally, to mitigate transportation impacts, AB 130 allows developers to contribute to a Transit-Oriented Development Implementation Fund, which provides loans for affordable, high-density housing near transit stations. The fund is intended to provide another tool for transportation mitigation, with other options still available.

SB 131

For qualifying housing projects that meet all but one condition of a statutory or categorical CEQA exemption, SB 131 limits the scope of CEQA review to the effects of that single condition. This provision does not apply to housing projects that include a distribution center or oil and gas infrastructure or that are on natural and protected lands.

For most projects (but not those including distribution centers or oil and gas infrastructure), SB 131 also narrows the scope of the administrative record for CEQA litigation to exclude internal agency emails not presented to the final decision-making body or reviewed by a supervisory agency official.

Additionally, SB 131 directs the Office of Land Use and Climate Innovation to identify and map eligible infill sites that are consistent with local general plan land use designations and that: (1) reduce travel-related greenhouse gas emissions, (2) reduce conversion of open space for development, (3) facilitate environmentally friendly active transportation, (4) reduce stormwater runoff, and/or (5) bring vibrancy, community, and social connection to neighborhoods.

Finally, SB 131 creates or expands statutory exemptions for various projects:

  • Rezoning to implement a schedule of actions in an approved housing element (which has already gone through CEQA), unless it would allow oil and gas infrastructure or a distribution center, or would allow construction in natural and protected lands.
  • New farmworker housing that receives public funding, or maintenance of existing farmworker housing.
  • Projects to provide sewer service to disadvantage communities with inadequate sewage treatment programs.
  • Community water systems funded by certain programs that (1) result in long term benefits to climate resiliency, biodiversity, and sensitive species recovery, and (2) include procedures and ongoing management for environmental protection.
  • Wildfire risk reduction projects, including prescribed fire and fuel reduction projects less than 50 acres in area and within 0.5 miles of a subdivision, defensible space along egress routes, and home hardening, defensible space, and fuel breaks around structures.
  • Linear broadband deployment.
  • Updates to Natural Resources Agency’s climate adaptation strategy.
  • Activities and approvals necessary or incidental to creating, operating, or maintaining public park nonmotorized recreational trail facilities funded at least in part by the Safe Drinking Water, Wildfire Prevention, Drought Preparedness, and Clean Air Bond Act of 2024.
  • Projects that consist exclusively of a day care center not in a residential area, a rural health clinic or federally qualified health center less than 50,000 square feet, a nonprofit food bank or pantry on a site zoned exclusively for industrial use, or an advanced manufacturing facility on a site zoned exclusively for industrial use. The project cannot be on natural and protected lands.
  • Heavy maintenance facilities within a mile of rail right of way and passenger rail stations for the California high-speed rail project, if an EIR has already been prepared for a similar maintenance facility or the rail station is within the resource study area of a previous EIR, and the project incorporates applicable mitigation measures. The project cannot be on natural and protected lands.

– Hilary K. Sanders

SECOND DISTRICT HOLDS CULVER CITY ANTI-“MANSIONIZATION” ORDINANCE VIOLATES HOUSING CRISIS ACT OF 2019

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In Yes In My Back Yard v. City of Culver City (2023) 96 Cal.App.5th 1103, the Second District Court of Appeal held that an ordinance reducing the allowable square footage for new homes in single-family residential zones violated the Housing Crisis Act of 2019 (SB 330).

Background

In response to California’s widespread housing shortages, the Legislature passed SB 330, which generally restricts the authority of affected cities to re-designate or rezone parcels to a “less intensive use” or reduce “the intensity of land use” allowed within an existing land use designation or zoning district.

Shortly after, in July 2020, the City of Culver City adopted an ordinance to reduce the allowable floor area ratio (FAR) (i.e., the ratio of a building’s square footage to the square footage of the lot) for primary residences in single-family residential zones. The City adopted the ordinance in response to residents’ concerns about “mansionization” in their residential neighborhoods, for the express purpose of reducing the overall square footage of new residences.

Petitioner, Yes In My Back Yard (YIMBY), filed a petition for writ of mandate seeking to repeal the ordinance. YIMBY argued that the ordinance reduced the intensity of use allowed in single-family residential zones, in violation of SB 330. The trial court agreed with YIMBY, granted the petition, and awarded attorneys’ fees to YIMBY. The City appealed.

Court of Appeal’s Decision

After independently reviewing the plain meaning of SB 330, the court concluded that the unambiguous statutory language prohibited the City from reducing the allowed FAR for new residences in single-family residential zones. Specifically, the court explained that SB 330’s prohibition on “reducing the intensity of land use” expressly includes “reductions to height, density, or floor area ratio.” Given the lack of ambiguity in SB 330, the court rejected the City’s argument that the Legislature intended to convey a different meaning. Nevertheless, the court reviewed the legislative history and determined that it was consistent with the court’s interpretation of SB 330.

The court also rejected the City’s argument that the ordinance was exempt from SB 330. By its own terms, SB 330 does not prohibit actions “intended to preserve or facilitate the production of housing for lower income households … or housing types that traditionally serve lower income households,” nor does it prohibit actions intended to increase density, facilitate housing development, or reduce the cost of housing development projects. The court, however, concluded that the City failed to establish that the ordinance would have served any of these purposes.

Finally, the court held that the trial court did not abuse its discretion by granting $131,813.58 in attorneys’ fees to YIMBY. The court explained that, by enforcing important housing rights, YIMBY’s lawsuit conferred a significant benefit on the public that justified a fee award under the private attorney general statute. Additionally, the court found that the trial court’s application of a fee multiplier of 1.25 was properly based on several non-punitive factors, including the novel questions presented by the litigation, the future transfer of the expense to the taxpayers (where elected City representatives refused to remedy the violation to avoid the litigation), the relatively low hourly rates requested by YIMBY’s counsel, and the favorable results obtained by YIMBY.

SB 7 – Jobs and Economic Improvement Through Environmental Leadership Act of 2021

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On May 20, 2021, Governor Gavin Newsom signed Senate Bill (SB) 7, known as the Housing + Jobs Expansion & Extension Act. SB 7 extends the provisions of legislation enacted in 2011 (Assembly Bill 900) that created an expedited judicial review process under CEQA for large development projects that met certain criteria. AB 900 was repealed by its own terms on January 1, 2021.

SB 7 reenacts and updates AB 900 in order to “expedite the development and construction of urgently needed housing, clean energy, low carbon, and environmentally-beneficial projects, and the jobs they create.” The bill notes that numerous large projects under consideration in California have the potential to create thousands of high-skill, high-wage jobs. Many of these projects will replace old and outdated facilities with newer, cleaner, and innovative facilities that will lead the nation in environmental impact mitigation and reduction.

Thus the bill streamlines and facilitates development projects in a number of ways. First, the Governor may certify a project before the lead agency certifies a final EIR. Second, the environmental review, administrative process, and record of proceedings may be prepared concurrently. Third, the project applicant must agree to pay trial court costs if the lead agency’s certification is challenged. Fourth, to the extent feasible, judicial review of lead agency action must conclude within 270 days once commenced. Finally, the Bill extends the benefits of AB 900 to those projects that were certified by the Governor before AB 900’s expiration and by the lead agency within one year of AB 900’s expiration.

In order to be eligible for streamlined certification, a project must fall into at least one of the following categories. It must be on an infill site, certified as LEED Gold (or better), and able to achieve a 15% improvement in transportation efficiency. Or it must be a clean energy project that either generates power exclusively through wind or solar energy or manufactures equipment used in renewable energy production. Or it must be a housing project on an infill site that will dedicate at least 15% of the development to affordable and low-income housing. Although it may include mixed-use development—assuming at least two-thirds is residential—or transitional housing, no part of a certified housing project may be used for transient lodging, manufacturing, or industrial uses.

Regardless of the category it falls into, the project must meet certain criteria. First, it must result in at least $100 million in investment in California (except for housing projects, which must result in an investment of between $15 million and $100 million). It must also create high-wage and high-skill jobs that help reduce unemployment and encourage apprenticeship training. And, at a minimum, it must not lead to a net increase in greenhouse gas emissions, including from employee transportation. Finally, the project applicant must agree to monitoring and enforcement of its mitigation efforts by the lead agency.

SB 7 aims to boost California’s economic recovery by creating more and better housing and jobs, and doing so in an environmentally sustainable way. As Governor Newsom noted when he signed the legislation, “California’s recovery from the pandemic must tackle the housing shortage that threatens our economic growth and long-term prosperity. Cutting red tape to save time and remove barriers to production helps us meet the urgent need for more housing while creating good jobs and preserving important environmental review.” Indeed, AB 900 had already led to roughly twenty major clean energy and housing projects, 10,000 housing units, and thousands of high paying jobs. Proponents of SB 7 hope its passage will continue this trend.

The Governor’s press release is available here: https://www.gov.ca.gov/2021/05/20/in-san-jose-governor-newsom-signs-legislation-to-fast-track-key-housing-economic-development-projects-in-california/

– Blake C. Hyde

Fourth District Upholds Negative Declaration, Finding No “Fair Argument” of Land Use Impacts

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In Friends of Riverside’s Hills v. City of Riverside (2018) 26 Cal.App.5th 1137, the Fourth District Court of Appeal upheld the trial court’s conclusion that the City of Riverside properly adopted a negative declaration and was not required to prepare an EIR for a six-unit Planned Residential Development in the city’s Residential Conservation Zone. The court also found that the city did not abuse its discretion by approving the project with six homes on six lots.

In 2015, Real Parties in Interest, Carlton and Raye Lofgren, applied to develop approximately twelve acres of property they owned in the city’s Residential Conservation Zone (RCZ). The RCZ places special requirements on proposed residential development in order to protect the natural landscape in the zone. These requirements include submitting information on the natural slope of lots in the parcel to determine the minimum lot size (the greater the average slope, the larger the minimum lot size), and, ordinarily, a maximum density of 0.5 dwelling units per acre. Projects that qualify as Planned Residential Developments (PRDs) allow smaller minimum lot sizes and higher density. PRDs must be designed to protect and retain the natural topographic features of the site and may cluster homes in less steep areas of the site to protect such features and preserve open space. The Lofgrens also sought a density bonus to allow 0.63 dwelling units per acre by preserving 4.85 acres of the site as managed open space and selecting from a list of “superior design” elements.

As the project moved through the city’s administrative process, the acreage information fluctuated on the maps submitted by the Lofgrens (between just over 12 acres and just over 11 and a half acres) and the design of the site changed. After preparing an initial study, the city issued a negative declaration for the project. Petitioner Friends of Riverside’s Hills (Friends) commented several times during the administrative process concerning the acreage (and thus the number of allowable lots) and density. Twice, the city and/or the Lofgrens amended the project to address Friends’ concerns. Friends also argued that: the city had failed to require the Lofgrens to have a recognized conservation group oversee the open space preservation because an early version of the conditions of approval designated a homeowners’ association, the project would require excessive grading, the natural slope information submitted by the Lofgrens was inconsistent, and the project violated CEQA because it was inconsistent with the city’s zoning and grading ordinances. Ultimately, the city approved the project with the density bonus to allow six single-family homes on six lots ranging from just over a half-acre to just over an acre in size and with average natural slopes ranging from 21% to 29.5 percent.

Friends sought a writ of mandate to set aside the city’s approval and require an EIR. Friends argued that the project did not comply with the RCZ because it failed to cluster the proposed lots on the less steep portions of the site and preserve the natural features. Friends argued that the project would require excessive grading, and that the Lofgrens were required to seek a variance for lots smaller than two acres. Friends also argued that the city abused its discretion by failing to support its determination regarding the natural slope of the proposed lots and by deferring selection of the “superior design” elements to the grading permit stage of development. The trial court found that there was no evidence that the project violated any of the land use provisions identified by Friends and denied the petition. Friends appealed.

On appeal, the court found that the RCZ was adopted by the city for environmental protection purposes, so violating those provisions could create a significant impact on the environment. But, the court found that there was no evidence in the record of any of the land use impacts alleged by Friends. First, Friends claimed that the project might violate the RCZ in the future, if it did not buildout as proposed in the PRD. The court found this to be speculation because the Lofgrens had not yet submitted final plans for the location of the homes. The court also found that while the RCZ required site design to be sensitive towards the natural topographic and habitat features of the site, clustering homes in less sensitive and steep portions of the site was one way that the applicant could choose to demonstrate the required sensitivity. There was no requirement to build in the least steep area of the site.

The court also pointed out that Friends were not challenging the actual conditions of approval, but arguing that the Lofgrens might not comply with them in the future, and that could have environmental impacts. The court stated that such an argument was true in nearly all cases, and that, if the project did not comply with the permit conditions, Friends could seek supplemental environmental review at that time. Further, the conditions required the project to be built in substantial conformance with the proposed PRD. Next, the court dismissed the variance argument, finding that the minimum two-acre lot size only applied where a proposed development was not a PRD. Lastly, the court rejected the abuse of discretion claims, finding that there was substantial evidence in the record of the average natural slope of the lots to support the city’s determination that the site could support six lots. The court also found that RCZ did not require an applicant to select the “superior design” elements prior to permit approval, but, in any case, the Lofgrens had selected their preferred “superior design” elements.