BB&K’s New Law Guidance for a Well-Informed Start to 2023

At the top of each new year, Best Best & Krieger LLP provides critical legal updates for public agencies and businesses based on new laws and court decisions from the previous year. In the weeks to come, we will provide roundups on new California laws.

In the first of our “In With the New” series, we cover a number of important new laws related to housing and law enforcement. Our attorneys have authored takeaways and analysis of these new laws: AB 2334, AB 1551, AB 682, AB 2094, AB 2653, AB 2339, SCA 2, SB 960, AB 2158 and AB 2773.

HOUSING

Density Bonus Housing Laws

AB 2334

This bill is aimed at addressing one of the more complex issues in implementing the state density bonus law: How to apply a bonus in a mixed-use zone where density is calculated by floor area ratio (FAR), rather than on the set number of allowable units. Many cities have struggled with various methods of applying a density bonus with FAR, and the California Department of Housing Community Development (HCD) has issued multiple pieces of technical guidance on this topic. This year, the state Legislature has attempted to eliminate that confusion. Starting in 2023, base density (and by extension any density bonus) must be determined by using dwelling units per acre. If the applicable local land use controls do not provide this type of dwelling units per acre standard, then AB 2234 requires that base density instead be calculated by estimating the realistic development capacity of the site based on applicable objective standards (e.g., FAR, site coverage, maximum building height and number of stories, building setbacks, open space, etc.). In areas where the local code does not specify dwelling unit per acre standard, the applicant can provide (and the city must accept) a base density study that identifies the realistic development capacity of the site based on objective development standards such as FAR, site coverage, and height limits.

The bill also provides that if the density under the zoning ordinance is inconsistent with the density under the general plan or specific plan, the greater shall prevail.

Under prior density bonus law, for projects where 100% of all units are for lower-income households, except as provided, a city, county, or city and county is required to award to an applicant a height increase of up to three additional stories, or 33 feet, if the project is located within half a mile of a major transit stop, and is prohibited from imposing any maximum controls on density on the project if the project is located within half a mile of a major transit stop. This bill awards that same height increase if the project is located within a “very low vehicle travel area.” The bill prohibits the above-described maximum controls on density if the project is located in a designated county, and within a very low vehicle travel area. Designated counties include: Alameda, Contra Costa, Los Angeles, Marin, Napa, Orange, Riverside, Sacramento, San Bernardino, San Diego, San Francisco, San Mateo, Santa Barbara, Santa Clara, Solano, Sonoma, and Ventura. This bill prohibits the imposition of any vehicular parking standards if a development is for a project where 100% of all units are for lower-income households, except as provided, and meets specified criteria. The bill also makes further clarifications to the affordability requirements and rent levels under the density bonus law.

AB 1551

AB 1551 reinstates a portion of density bonus law that sunset at the end of 2021 which required a city to grant a commercial developer a development bonus when they partner with an affordable housing project. AB 1551, effective from Jan. 1, 2023 until Jan. 1, 2028, also requires a city or county to annually submit to the Department of Housing and Community Development information describing an approved commercial development bonus.

To qualify, the developer must partner with a housing developer or provide housing onsite that contains 30% low-income units or 15% very low-income units. If the housing is offsite, it must be on a site that is within the city, close to public amenities, and located within half a mile of a major transit stop. If the partnered project qualifies, the commercial development may be granted incentives which include, but are not limited to, any of the following:

(1) Up to a 20% increase in maximum allowable intensity in the General Plan.
(2) Up to a 20% increase in maximum allowable floor area ratio.
(3) Up to a 20% increase in maximum height requirements.
(4) Up to a 20% reduction in minimum parking requirements.
(5) Use of a limited-use/limited-application elevator for upper floor accessibility.
(6) An exception to a zoning ordinance or other land use regulation.

To qualify for the development bonus, the commercial developer must enter into an agreement for partnered housing with the housing developer. The agreement will identify how the commercial developer will contribute affordable housing, and is approved by the city. If the developer of the affordable units does not commence with construction of the units in accordance with timelines ascribed by the agreement, the city may withhold certificates of occupancy for the commercial development under construction until the developer has completed construction of the affordable units.

AB 682

This bill amends the State Density Bonus Law to create a density bonus for “shared housing” developments. Shared or “group” housing is a residential or mixed-use structure with five or more housing units with shared access to common kitchen and dining areas. The tenants must reside there for no less than 30 days. To qualify for a density bonus the shared housing facility must include 10% lower-income units; 5% very low-income units; or be a senior housing development.

Annual Reporting Housing Laws

AB 2094

This bill requires cities, as a part of the existing HCD annual housing element reporting process, to report their progress towards building extremely low-income housing units as a separate data point from very low-income housing units.

AB 2653

Every California city and county must have a general plan and must file an annual report with the state that describes the agency’s progress in meeting housing needs for various listed groups. Assembly Bill 2653 adds extremely low-income households (≤30% AMI) to the list. The bill also requires the agency to indicate in the report whether housing development applications were subject to a ministerial or discretionary approval process.

AB 2339

A housing element must now identify residential and mixed-use zones where emergency shelters are permitted ministerially (not just any zone). Shelters are subject only to types of objective standards in the statute itself (other local standards no longer apply), and even then, the local agency must analyze each of the standards that it adopts from the statutory list as a potential constraint on housing for all income levels. The definition of “emergency shelter” is expanded to include “other interim interventions” beyond those enumerated in the statute. Only certain types of sites count (vacancy, proximity to services are factors) and, throughout the cycle, the agency must maintain sufficient sites in its inventory to meet its shelter needs (the statute now provides a method of calculating default shelter capacity for sites). This bill also provides that the mandatory housing element inventory must now accommodate “any unaccommodated portion” of the RHNA from the last cycle, in addition to the current RHNA.

Constitutional Amendment Housing Law

SCA 2

SCA 2 places a constitutional amendment on the March 5, 2024 ballot to repeal Article 34 of the California Constitution, which was enacted in 1950 via Proposition 10. Article 34 requires local voter approval of low-income rental housing project that receive local, state or federal funding. Article 34 of the California Constitution (Article 34) requires voter approval of any "low-rent housing project" before its development, construction or acquisition by a state or local public agency. Article 34 requires voter approval for housing projects that meet three basic elements: (1) The project is a low-rent housing project, (2) developed, constructed or acquired in any manner (3) by a state public body. (California Constitution, Article 34 §1.) For purposes of Article 34, a low-rent housing project is generally a rental project where greater than 49% of the units are occupied by low-income residents, and the project is owned, constructed or financed in whole or in part by a state or local public agency. The Legislature has created a few statutory carve outs to this requirement but, with the approval of each affordable housing project, a city is required to either place the approval on the ballot, rely on a previous voter approval or structure the transaction to ensure it falls within one of the statutorily created carve outs.

As part of the state’s ongoing efforts to encourage the development of affordable housing, the Legislature approved SCA 2, which places a measure on the March 5, 2024 ballot repealing Article 34. There have been three previous attempts to repeal or modify Article 34, all of which have failed. In November 1974, California voters defeated Proposition 15, which would have repealed the constitutional voter requirement. In June 1980, California voters defeated Proposition 4, which would have repealed the local voter referendum requirement and replaced it with a referendum option on the project if 10% of voters signed a petition. And, in November 1993, California voters defeated Proposition 168, which would have added a referendum option similar to what was proposed in 1980.

To pass the March 5, 2024, ballot measure will require a simple majority to pass.

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LAW ENFORCEMENT

Government Employees

SB 960

Senate Bill 960 amends and repeals sections of the Government Code and the Vehicle Code regarding the Peace Officer Standards and Training requirements set by the State of California.

Noteworthy features of SB 960 include:

• Repeals Government Code section 1031.5 which disqualifies immigrants employed as peace officers from holding the position if their application for citizenship is denied.
• Repeals Vehicle Code section 2267 which requires an officer of the California Highway Patrol to be a citizen of the United States.
• Changes eligibility for Peace Officer Standards and Training from requiring citizenship of the United States or be a permanent resident eligible for and has applied for citizenship to “be legally authorized to work in the United States under federal law.” (Gov. Code § 1031).
• Adds Cognia accredited educational institutions to the list of approved educational institutions required for eligibility for Peace Officer Standards and Training consideration. (Gov. Code § 1031).
• Applies AB 2229 changes to Government Code 1031 only if this bill is enacted. Since both SB 960 and AB 2229 were enacted they add, “including bias against race or ethnicity, gender, nationality, religion, disability, or sexual orientation” to the psychological evaluation disqualifications list.” (Gov. Code § 1031).

Fiscal impact: No appropriations made and no expected costs associated with the change.

Government Ethics

AB 2158

Assembly Bill 2158 amends multiple sections of the government code relating to ethics requirements for local government. Existing law requires local agency officials to receive ethics training if the local agency gives monetary compensation to a member of a legislative body (e.g., a salary). This bill amends the definition for “local agency” to include school districts, county offices of education and charter schools. It also defines “local agency official” to add a member of the governing board of a school district, a county board of education or the governing body of a charter school, regardless of any type of compensation, salary, 4 stipend or reimbursement the member receives in performance of official duties. The bill requires all of those newly added officials to receive ethics training, except if their term ends before January 1, 2026, by that date, and once every two years thereafter while in public service.

Fiscal impact: No appropriation, however this bill specifies this as a state mandate, therefore if the Commission on State Mandates determines the bill contains costs mandated by the state, it shall reimburse those costs under the California Constitution.

AB 2773

Assembly Bill 2773 amends and repeals various sections of the Government Code and the Vehicle Code regarding the Peace Officer Standards and Training requirements set by the State of California.

Noteworthy features of AB 2773 include:

• Beginning January 1, 2024, requires each state and local law enforcement agency to include “reason given to the person stopped at the time of the stop” in their annual report to the attorney general data on all stops conducted.” (Gov. Code § 12525.5).
• Beginning January 1, 2024, requires peace officers conducting a traffic or pedestrian stop to state the reason for the stop, before engaging in questioning related to a criminal investigation or traffic violation, unless the officer reasonably believes that withholding the reason for the stop is necessary to protect life or property from imminent threat or danger. Peace officers will also be required to document the reason for the stop on any citation or police report resulting from the stop. (Veh. Code § 1656.3).
• Beginning January 1, 2024, the Department of Motor Vehicles is required to add information regarding the duty of peace officer to state the reason for the stop in their California Driver’s Handbook when revised or reprinted (at earliest opportunity) and the state will reimburse the DMV for the costs of complying with that state mandate. (Veh. Code § 1656.3 and Veh. Code § 2806.5 Sec. 6 pursuant to Gov. Code § 17500 et. seq.).

Fiscal Impact: No appropriation, however this bill specifies this as a state mandate, therefore if the Commission on State Mandates determines the bill contains costs mandated by the state, it shall reimburse those costs under the California Constitution.

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