Clients in the San Jose region are taking notice of a new CEQA-exempt streamlining process for multifamily housing projects. Senator Anna Cabellero from District 14 in the Central Valley recently authored two bills that expand allowable density without requiring additional labor or affordability requirements. SB 1123 applies to vacant lots, as defined, that are no larger than 1.5 acres and zoned single family. (Gov. Code § 66499.41, subd. (a)(2)(A)(ii).) SB 684 applies to lots that are no larger than five acres and zoned multifamily. (Gov. Code, § 66499.41, subd. (a)(2)(B).) Both bills facilitate the construction of projects with up to ten multifamily units by facilitating ministerial approval under the Subdivision Map Act.
Subdivision regulations are designed to encourage orderly community development. For a development that creates five or more units, a developer must file a tentative map with a local jurisdiction under the Map Act. (Gov. Code § 66426.) Typically, the requirement to apply for a map is in addition to other applications for a development project and a building permit. Once the map is recorded, parcel numbers are assigned to the individual units for the purpose of a sale, lease, or financing.
SB 684 and SB 1123 were designed to shorten the development timeline for multifamily housing projects that consists of ten or fewer residential units and require subdivision by creating a streamlined ministerial approval process. Both these bills require a city to consider a parcel map or tentative and final map for a housing development project without discretionary review or a public hearing. (Gov. Code § 66499.41, subd. (a).) Because a ministerial duty is imposed, the city will be obligated to approve the map request when the project meets criteria, and a city must also process a complete application within 60 days from receipt. (Gov. Code § 66499.41, subd. (c).) The development project application must also be reviewed ministerially and processed within 60 days. (Gov. Code § 65852.28, subd. (c).) These ministerial acts are exempt from CEQA pursuant to Public Resources Code § 21080(b)(1).
To be eligible for streamlined approval, a lot also must be:
- substantially surrounded by qualified urban uses, as defined by Pub. Resources Code § 21072;
- located in an incorporated city or urbanized area (Gov. Code § 66499.41, subd. (a)(2)(C));
- not created through a previous subdivision, as defined (Gov. Code § 66499.41, subd. (a)(2)(D)); and,
- not located in an environmentally sensitive area, as defined. (Gov. Code § 66499.41, subd. (a)(9)).
To be eligible for streamlined approval, units must be:
- no fewer in number than as identified in the housing element, if applicable, and no less than 66% of the allowable residential density (Gov. Code § 66499.41, subd. (a)(5));
- no more than 10 in number (Gov. Code § 66499.41, subd. (a)(1));
- for developments on lots zoned multifamily, of a size no smaller than 600 feet and no larger than 1,750 square feet, unless otherwise allowed by local government (Gov. Code § 66499.41, subd. (a)); and
- for developments on lots zoned single family, of a size no smaller than 1,200 square feet and no larger than 1,750 square feet, unless otherwise allowed by local government (Gov. Code 66499.41, subd. (a).)
- intended for fee ownership, common interest, and housing cooperative developments, with exceptions delineated in Gov. Code § 66499.41, subd. (a)(4).
Projects must comply with objective standards, provided that the objective standards do not physically preclude the project from being built. (Gov. Code § 65852.28, subd. (b)(2)(A).) It is important to note that these types of projects are not available on sites occupied by tenants within the preceding five years or vacated by the Ellis Act in the last 15 years. (Gov. Code, § 66499.41, subd. (a)(8).) A lot zoned single-family must be vacant, which is defined as having no permanent structure, unless the permanent structure is abandoned and uninhabitable. (Gov. Code § 66499.41, subd. (A)(2)(A)(ii).) A city also may deny a project or building permit if it makes written findings that the project would have a specific adverse impact upon public health and safety for which there is no feasible method to mitigate. (Gov. Code § 65852.28, subd. (d)) A city may deny accessory units such as ADUs or JADUs for these development projects, but if allowed, accessory units will not be included in the count towards the ten unit maximum. (Gov. Code § 66499.41 subd. (g).)
SB 684 became operative on July 1, 2024, and is a good fit for clients that are seeking to build higher-density, market-rate housing on smaller lots otherwise ill-suited for conventional multi-family projects. SB 1123 was just signed by the Governor last month on September 19, 2024, and will be operative on July 1, 2025. SB 1123 significantly expands the allowable density on land zoned single-family. Both bills are unusual compared to other bills passed by the Legislature in recent sessions because there are no labor or affordability requirements; a local jurisdiction will retain their authority to enforce their own local affordable housing ordinance and housing element, and the project will not be subject to additional affordability mandates. (Gov. Code § 66499.41, subd. (a)(7).) Coupled with the advantages that come from ministerial review and CEQA exemption, both bills expand options for multifamily housing in a way that may influence market forces.
This article is for informational purposes only and not for the purpose of providing legal advice. Please contact your attorney to obtain advice with respect to any particular legal issue. The opinions expressed are the opinion of the author.
If you have any questions or desire further information, reach out to any of the members of our Land Use and Municipal Law Department: Andrew Faber (andrew.faber@berliner.com), Jolie Houston (jolie.houston@berliner.com), and Monica Hammer (monica.hammer@berliner.com). We are also available via Berliner Cohen’s main telephone line at (408) 286-5800.