Unintended consequences of SB 9 – RHNA quotas fulfilled without local rezoning?

In September, Newsom signed Senate Bill 9 into law. Among other things, SB 9

“would require a local agency to ministerially approve a parcel map for an urban lot split that meets certain requirements, including, but not limited to, that the urban lot split would not require the demolition or alteration of housing that is subject to a recorded covenant, ordinance, or law that restricts rents to levels affordable to persons and families of moderate, low, or very low income.”

And that provides that local agencies cannot impose

“standards [that] would have the effect of physically precluding the construction of 2 units, as defined, on either of the resulting parcels or physically precluding either of the 2 units from being at least 800 square feet in floor area”

Put simply, the ability of a homeowner to split their lot into two lots (of at least 1200 square feet in area, each) is “by right,” meaning that they cannot be denied unless the lot split would result in violations of the conditions of SB 9 or there are extraordinary circumstances that would negatively impact the health, safety, and general welfare of other residents, which are usually very rare. Approval is ministerial without any public hearings or review.

Similarly, a series of recently passed laws allow owners of single-family properties to build up to 2 accessory dwelling units (ADUs). This development is also by right and ministerial, without any requirements for public hearings.

When you look at a typical California city or county and count the amount of its single-family zoned land, it’s not hard to estimate that these two legislative rezoning actions are going to have a major impact on the number of housing units that will be created in the coming decade.

The Housing Element

The new 2023 to 2031 Housing Element cycle has begun. Cities and counties are required to submit a certifiable housing element to the Department of Housing and Community Development (HCD) in Sacramento. These plans, which are a part of a city’s General Plan, need to demonstrate that enough zoned property exists for the development of higher density housing and that sufficient incentives for private market developers to do so are in place.

The Regional Housing Needs Assessment (RHNA) housing quotas handed down from state and regional agencies (e.g., the Association of Bay Area Governments – ABAG) specify the number of housing units that need to be built in the coming Housing Element cycle and how many of each type of housing is needed by levels of affordability; e.g., 80% median income, low income, very low income, etc.

Apropos all this, a month ago, I received an email from an ex-city council member from Sausalito asking a very simple and almost too obvious question. She asked,

‘Since SB 9 allows the splitting of single-family zoned parcels and allows a homeowner to construct up to two units on each of those two, newly created lots, for a total of 4 units on an existing single-family zoned lot, and since the ability to do this “by right,” why can’t a city now claim that it already has sufficient zoning in place to satisfy its RHNA housing quota, without doing any additional multifamily rezoning?’ [1]

In other words, the state has now rezoned all single-family lots into higher density to accommodate lot splits and duplex construction (by right). So, how can the state simultaneously require cities and counties to meet their enormous RHNA quotas by rezoning more and more commercial, retail, industrial, and existing multifamily zoned land for higher density housing but at the same time say that all the newly zoned development under SB 9 is not “countable” toward a city’s RHNA quota fulfillment requirements?

The laws involved here are exceedingly clear and “by right” is “by right.” There’s nothing vague about what it means. That’s the whole purpose of these new laws. To remove all possible obstacles to development. So, it turns out that ex-council member’s question is one of the most important questions facing cities and counties.

The answer to it is a very big deal.

I ran all this by our legal counsel, who specializes in land use and state housing legislation, and the unequivocal, legalese response was “No one has a clue.”

It turns out that many cities have already begun asking this same question, officially. Consider for a moment that in Los Angeles, for example, the number of parcels currently zoned for single-family homes that have now been entitled to build multifamily is enormous. The city and county of Los Angeles and spreading out to its south, east, and west has single-family neighborhoods for as far as the eye can see. Does this mean that L.A.’s RHNA quota is now fulfilled for the next 50 years?

Read the full Marin Post article