HomeMy WebLinkAboutMINUTES - 08132013 - SD.2RECOMMENDATION(S):
CONSIDER a position of "Support" for AB 1229 (Atkins): Land Use: Zoning Regulations, a bill that expressly
authorizes a county or city to establish inclusionary housing requirements as a condition of development.
FISCAL IMPACT:
No fiscal impact to the County.
BACKGROUND:
At its July 18, 2013 meeting, the Legislation Committee considered AB 1229 (Atkins): Land Use: Zoning
Regulations, a bill that authorizes the legislative body of any city or county to adopt ordinances to establish, as a
condition of development, inclusionary housing requirements. The Committee directed staff to forward the bill to the
Board of Supervisors for consideration and action, without a recommendation from the Committee. Staff
recommends that the Board of Supervisors support the bill.
Article XI, Section 7 of the California Constitution grants counties and cities the power "to make and enforce within
its limits all local, police, sanitary, and other ordinances and regulations not in conflict with general laws." This is
generally referred to as the police power of local governments. The Planning and Zoning law within state statute is a
general law that sets forth minimum standards for counties and cities to follow in land use regulation, but the law also
establishes the Legislature's clear intent to "provide only a minimum of limitation in order that counties and cities
may exercise the maximum degree of control over local zoning matters."
Using this police power, many counties and cities have adopted ordinances, commonly called "inclusionary zoning
APPROVE OTHER
RECOMMENDATION OF CNTY ADMINISTRATOR RECOMMENDATION OF BOARD COMMITTEE
Action of Board On: 08/13/2013 APPROVED AS RECOMMENDED OTHER
Clerks Notes:
VOTE OF SUPERVISORS
AYE:John Gioia, District I Supervisor
Karen Mitchoff, District IV
Supervisor
Federal D. Glover, District V
Supervisor
NO:Candace Andersen, District II
Supervisor
Mary N. Piepho, District III
Supervisor
Contact: L. DeLaney,
925-335-1097
I hereby certify that this is a true and correct copy of an action taken and entered on the minutes of the Board
of Supervisors on the date shown.
ATTESTED: August 13, 2013
David Twa, County Administrator and Clerk of the Board of Supervisors
By: Chris Heck, Deputy
cc:
SD.2
To:Board of Supervisors
From:Legislation Committee
Date:August 13, 2013
Contra
Costa
County
Subject:Consider "Support" position for AB 1229 (Atkins): Land Use: Zoning Regulations
ordinances," that require developers to ensure that a certain percentage of housing units in a new development be
affordable to lower income households. According to the California Rural Housing Coalition's database, 140
jurisdictions in California currently have mandatory inclusionary zoning ordinances. These ordinances vary widely in
the percentage of affordable units required, in the depth of affordability required, and in the options through which a
developer may choose to comply. Most if not all such ordinances apply to both rental and ownership housing.
In 2009, in the case of
BACKGROUND: (CONT'D)
Palmer v. City of Los Angeles, the Second District California Court of Appeal opined that the City's affordable
housing requirements associated with a particular specific plan (akin to an inclusionary zoning ordinance), as it
applied to rental housing, conflicted with and was preempted by a state statute known as the Costa-Hawkins
Rental Housing Act. (The Costa- Hawkins Act limits the permissible scope of local rent control ordinances.
Among its various provisions is the right for a rental housing owner generally to set the initial rent level at the
commencement of a tenancy, even if the local rent control ordinance would otherwise limit rent levels across
tenancies. This provision is known as vacancy decontrol because the rent level is temporarily decontrolled after a
voluntary vacancy. The act also gives rental housing owners the right to set the initial and all subsequent rental
rates for a unit built after February 1, 1995.) The court opined that "forcing Palmer to provide affordable housing
units at regulated rents in order to obtain project approval is clearly hostile to the right afforded under the
Costa-Hawkins Act to establish the initial rental rate for a dwelling or unit."
This bill expressly authorizes a county or city under the Planning and Zoning Law to establish as a condition of
development inclusionary housing requirements, which may require the provision of affordable residential units
for low-, very low-, or extremely low-income owners or tenants. The bill further declares the intent of the
Legislature to supersede any holding or dicta in Palmer v. City of Los Angeles that conflicts with this authority.
In sum, this bill overturns the Palmer decision and expressly authorizes a county or city to establish inclusionary
housing requirements as a condition of development.
Impact on Contra Costa County
In 2006, the County adopted an Inclusionary Housing Ordinance (IHO). The purpose of the IHO is to provide a
mechanism to help the County to meet its fair share of affordable housing as determined by the Association for
Bay Area Governments and included in the Housing Element of the County General Plan.
The IHO applies to any development of 5 or more residential units. There are several alternative methods to
comply with the IHO. One option is to pay a fee in lieu of providing the affordable units. Another option is to
provide some affordable housing units within the larger development. If a developer of a rental property chooses
this option, the County will record a use agreement that limits the rent that can be charged on the affordable units
in the development. This has been termed as “rent control” by some, but should not be confused with a
jurisdiction-wide rent control ordinance such as those in San Francisco or Berkeley.
In 2009, Geoff Palmer sued the City of Los Angeles complaining that its Inclusionary Housing Ordinance was
inconsistent with Costa-Hawkins - the statewide law that prohibits cities from passing rent-control ordinances that
prohibit landlords from raising the rent on an apartment when a tenant moves out. Palmer won the case.
After the 2009 Palmer decision, the County waived its in-lieu fee on rental developments. This effectively
suspends the IHO for rental developments. The IHO is still in effect, however, for ownership projects.
AB 1229 would allow jurisdictions to adopt an IHO without being inconsistent with Costa-Hawkins.
Consequently, passage of this bill would allow the County to reinstate the rental portion of its IHO.
Prior Legislation
SB 184 (Leno, 2012) was identical to this bill. SB 184 failed passage on the Senate Floor.
SUPPORT:
California Rural Legal Assistance Foundation (co-source)
Non-Profit Housing Association of Northern California (co-source)
San Diego Housing Federation (co-source)
Western Center on Law and Poverty (co-source)
American Planning Association, California Chapter
BRIDGE Housing
Cabrillo Economic Development Corporation
California Coalition for Rural Housing
California Housing Partnership Corporation
California State Association of Counties
CHISPA Housing (Salinas)
Cities Association of Santa Clara County
Cities of: Azusa, Berkeley, Brawley, Burbank, Calistoga, Capitola,
Ceres, Chico, Chowchilla, Cloverdale, Colma, Danville, Davis, Del Mar,
El Centro, El Cerrito, Emeryville, Fort Bragg, Hillsborough, King City,
Lathrop, Livingston, Lodi, Los Altos, Mill Valley, Monterey, Napa,
Novato, Pasadena, Riverside, Salinas, San Jose, San Mateo, San Rafael,
Santa Monica, South San Francisco, Turlock, Union City, Vista, Wasco,
City and County of San Francisco
City/County Association of Governments of San Mateo County
Corporation for Supportive Housing
Council of Community Housing Organizations
County of San Mateo Board of Supervisors
EAH Housing (San Rafael)
East Bay Housing Organizations
Eden Housing
Fair Housing of Marin
First Place for Youth
Greenbelt Alliance
Habitat for Humanity
Housing California
Housing Leadership Council of San Mateo County
Law Foundation of Silicon Valley
LeadingAge California
League of California Cities
League of California Cities, Los Angeles County Division
League of Women Voters of California
League of Women Voters of Marin County
Marin Partnership to End Homelessness
Marin Workforce Housing Trust
Mercy Housing
MidPen Housing
Move LA
Sacramento Housing Alliance
Self-Help Enterprises
Silicon Valley Leadership Group
Southern California Association of NonProfit Housing
State Building and Construction Trades Council
OPPOSITION:
Apartment Association California Southern Cities
Apartment Association of Greater Los Angeles
Apartment Association of Orange County
California Association of Realtors
California Building Industry Association
California Business Properties Association
East Bay Rental Housing Association
GH Palmer Associates
Nor Cal Rental Property Association
Orange County Association of Realtors
Pardee Homes
San Diego County Apartment Association
San Francisco Association of Realtors
Santa Barbara Rental Property Association
ARGUMENTS IN SUPPORT: According to the sponsors, local inclusionary housing programs have proven to be
one of the most effective tools for producing new homes affordable to working families and creating strong,
diverse neighborhoods with a range of housing choices. Inclusionary ordinances have provided quality affordable
housing to over 80,000 Californians, including the production of an estimated 30,000 units in the last decade
alone. While many of these local programs have been in place for decades, the recent Palmer decision has created
uncertainty and confusion for local governments and housing advocates regarding the future viability of this
important local land use tool.
According to the author, this bill resolves a conflict between local inclusionary zoning ordinances and the state's
Costa-Hawkins Rental Housing Act, thereby restoring the ability of local governments to use one of the most
effective tools at their disposal to promote the production of both ownership and rental homes that are affordable
to California's lower income working families.
ARGUMENTS IN OPPOSITION: Opponents argue that inclusionary zoning is akin to rent control and that this
bill, therefore, allows local governments to enact and enforce rent control on newly constructed rental housing
units by pre-empting the Costa-Hawkins Act. They believe that the Costa-Hawkins protections for new
construction are appropriate and should be maintained and that the bill will seriously hurt the construction
industry.
They further believe that the Legislature intended to overrule inclusionary zoning ordinances with the
Costa-Hawkins Act because otherwise it would have created another exemption similar to the one stating that the
act does not apply when the developer has "agreed by contract with a public entity in consideration for a direct
financial contribution or any other forms of assistance specified in [density bonus law]."
ASSEMBLY FLOOR: 41-31, 5/30/13
AYES: Alejo, Ammiano, Atkins, Bloom, Blumenfield, Bocanegra, Bonta, Bradford, Brown, Ian Calderon,
Campos, Chau, Chesbro, Cooley, Dickinson, Eggman, Fong, Garcia, Gomez, Gonzalez, Gordon, Gray, Hall,
Jones-Sawyer, Levine, Lowenthal, Medina, Mitchell, Mullin, Muratsuchi, Nazarian, Pan, Rendon, Skinner, Stone,
Ting, Weber, Wieckowski, Williams, Yamada, John A. Perez
NOES: Allen, Bigelow, Chavez, Conway, Dahle, Daly, Donnelly, Frazier, Beth Gaines, Gatto, Gorell, Grove,
Hagman, Harkey, Jones, Linder, Logue, Maienschein, Mansoor, Melendez, Morrell, Nestande, Olsen, Patterson,
Perea, V. Manuel Perez, Quirk-Silva, Salas, Wagner, Waldron, Wilk
NO VOTE RECORDED: Achadjian, Bonilla, Buchanan, Fox, Roger Hernandez, Holden, Quirk, Vacancy
DISPOSITION: Pending
LOCATION: Senate Third Reading File
CONSEQUENCE OF NEGATIVE ACTION:
The Board of Supervisors will not have an official position on the bill from which to advocate.
CHILDREN'S IMPACT STATEMENT:
None.
None.
ATTACHMENTS
AB 1229 Bill Text
california legislature—2013–14 regular session
ASSEMBLY BILL No. 1229
Introduced by Assembly Member Atkins
(Principal coauthor: Assembly Member Mullin)
(Principal coauthor: Senator Leno)
February 22, 2013
An act to amend Section 65850 of the Government Code, relating to
land use.
legislative counsel’s digest
AB 1229, as introduced, Atkins. Land use: zoning regulations.
The Planning and Zoning Law authorizes the legislative body of any
city or county to adopt ordinances regulating zoning within its
jurisdiction, as specified.
This bill would additionally authorize the legislative body of any city
or county to adopt ordinances to establish, as a condition of
development, inclusionary housing requirements, as specified, and
would declare the intent of the Legislature in adding this provision. The
bill would also make a technical, nonsubstantive change.
Vote: majority. Appropriation: no. Fiscal committee: no.
State-mandated local program: no.
The people of the State of California do enact as follows:
line 1 SECTION 1. Section 65850 of the Government Code is
line 2 amended to read:
line 3 65850. The legislative body of any county or city may, pursuant
line 4 to this chapter, adopt ordinances that do any of the following:
99
Item #5--Attachment B
line 1 (a) Regulate the use of buildings, structures, and land as between
line 2 industry, business, residences, open space, including agriculture,
line 3 recreation, enjoyment of scenic beauty, use of natural resources,
line 4 and other purposes.
line 5 (b) Regulate signs and billboards.
line 6 (c) Regulate all of the following:
line 7 (1) The location, height, bulk, number of stories, and size of
line 8 buildings and structures.
line 9 (2) The size and use of lots, yards, courts, and other open spaces.
line 10 (3) The percentage of a lot which may be occupied by a building
line 11 or structure.
line 12 (4) The intensity of land use.
line 13 (d) Establish requirements for offstreet off-street parking and
line 14 loading.
line 15 (e) Establish and maintain building setback lines.
line 16 (f) Create civic districts around civic centers, public parks,
line 17 public buildings, or public grounds, and establish regulations for
line 18 those civic districts.
line 19 (g) Establish, as a condition of development, inclusionary
line 20 housing requirements, which may require the provision of
line 21 residential units affordable to, and occupied by, owners or tenants
line 22 whose household incomes do not exceed the limits for lower
line 23 income, very low income, or extremely low income households
line 24 specified in Sections 50079.5, 50105, and 50106 of the Health and
line 25 Safety Code.
line 26 SEC. 2. The Legislature finds and declares all of the following:
line 27 (a) Inclusionary housing ordinances have provided quality
line 28 affordable housing to over 80,000 Californians, including the
line 29 production of an estimated 30,000 units of affordable housing in
line 30 the last decade alone.
line 31 (b) Since the 1970s, over 170 jurisdictions have enacted
line 32 inclusionary housing ordinances to meet their affordable housing
line 33 needs.
line 34 (c) While many of these local programs have been in place for
line 35 decades, the recent decision in Palmer/Sixth Street Properties, L.P.
line 36 v. City of Los Angeles (2009) 175 Cal.App.4th 1396, has created
line 37 uncertainty and confusion for local governments regarding the
line 38 future viability of this important local land use tool.
line 39 (d) It is the intent of the Legislature to reaffirm the authority of
line 40 local jurisdictions to enact and enforce these ordinances.
99
— 2 —AB 1229
Item #5--Attachment B
line 1 (e) The Legislature declares its intent in adding subdivision (g)
line 2 to Section 65850 of the Government Code, pursuant to Section 1
line 3 of this act, to supersede any holding or dicta in Palmer/Sixth Street
line 4 Properties, L.P. v. City of Los Angeles (2009) 175 Cal.App.4th
line 5 1396, to the extent that the opinion in that case conflicts with that
line 6 subdivision. This act shall not otherwise be construed to enlarge
line 7 or diminish the authority of a jurisdiction beyond those powers
line 8 that existed as of July 21, 2009.
O
99
AB 1229— 3 — Item #5--Attachment B