With the front door left wide open on new State housing laws, the legislature is poised to take up another round of proposed changes in its current 2022 session. If adopted, more rules would join the lineup of housing laws in effect since 2019 (see end of article for proposed lineup). The State’s goal is simple: more units and more production even if that means overriding the nucleus of community planning known as “local control.”
Scrambling to keep codes and processes up-to-date, city and county planners continue to feel the weight of the legislature’s declared housing crisis and the influx of applicants desiring to utilize the new allowances – Density Bonus and waivers/concessions, Senate Bill 9 (SB 9), Senate Bill 330 (SB 330) and Preliminary Applications, Accessory Dwelling Units (ADUs), increased density rezoning pursuant to 5th and 6th Cycle Housing Element programs, and more ministerial or “by-right” processing intended to streamline the local development review process.
But there’s a hitch – the Coastal Zone.
Despite repeated requests from coastal communities each legislative session, the legislature is not receptive to exempting Coastal Zone jurisdictions from State housing mandates. For practitioners at the State and local level, this has created an awkward tension felt when navigating California’s codes. On one hand we have the Government Code where State housing mandates find their home alongside other governing laws applied to zoning, General Plans and land use. On the other hand, we have the Public Resources Code where the Coastal Act has comfortably dwelt since 1976.
When viewed through the lens of State housing law since 2019, the Government Code seeks to grow and seeks new opportunities to drive change; while the Coastal Act seeks to protect, ensure existing resources will be preserved and protected, and practices restraint.
This begs the question: When it comes to solving the statewide housing crisis, how is the Coastal Zone doing? The legislature has made it clear that coastal and non-coastal communities are in this together – both must adapt their rules to facilitate higher production of housing and plan for growth over the next eight-year housing cycle to meet their Regional Housing Needs Assessment (RHNA). Simply put – there are no breaks and no exemptions regardless to those cities, towns and counties along California’s 840-mile scenic coastline whose resources are protected by the Coastal Act.
In response, a theme has emerged in the legislature’s various housing bills. Instead of overriding the Coastal Act or exempting coastal communities from the respective housing mandates, the can is kicked. State housing law is written so as not to supersede or in any way alter or lessen the effect or application of the Coastal Act (with exception of preventing public agencies from holding public hearings for coastal development permit applications). In return, the legislature has adopted a practice of deferring the “harmonizing” of the Government Code (housing mandates) and Public Resource Code (Coastal Act) for coastal jurisdictions.
This task falls to the California Coastal Commission.
If you are familiar with local rulemaking in coastal communities, you will understand the added steps involved when amending local development codes. The process can become quite complex and take much longer than rulemaking in non-coastal communities. For those less familiar, the process can be summarized as follows:
1) All local agencies follow a typical process when amending their codes. This involves the preparation of an ordinance, a recommendation hearing with their respective Planning Commission, and ultimate review and adoption by the governing body (e.g., City Council or Board of Supervisors).
2) Once an ordinance is adopted, a second reading is required at the governing body’s next meeting and the law goes into effect 30 days following. Generally, this is the end of the road for non-coastal communities.
3) For coastal communities, the ordinance is then submitted to the Coastal Commission for review and certification. This is a process for all jurisdictions that have a certified Local Coastal Program (LCP). An LCP implements the Coastal Act at the local level; however, the Coastal Commission retains oversight over all amendments to an LCP before a law change can take effect.
4) Once received, the Coastal Commission will review the amendment and request additional information if necessary to deem the amendment application complete.
5) Once deemed complete, the Coastal Commission must act on the amendment within 60 days (for an amendment to an LCP’s Implementing Ordinances (IO) or 90 days for an amendment to an LCP’s Land Use Plan (LUP) or requests involving amendments to both an IO and LUP).
6) If the Coastal Commission cannot take action in this timeframe, the Coastal Commission may extend their review for up to one year. This has been the typical practice due to workload of Coastal Commission staff.
7) If the extension is granted, the Coastal Commission must take action on the request within the one-year extended timeframe or else the amendment is considered approved as requested.
8) When the Coastal Commission approves an amendment, it has been typical practice that Coastal Commission staff recommends the Commission deny the local agency amendment and approve a revised amendment (changes are referred to as “suggested modifications”). If approved with the suggested modifications, the amendment must go back to the local governing body for an acknowledgement and acceptance of the amendment as revised (+/- two to four months). This must occur at a public meeting.
9) If acknowledged and accepted by the governing body, the request must go back to the Coastal Commission for a final acceptance of the request (+/- two months). This must occur at a public meeting and is generally carried out under the Director’s Report.
10) If final acceptance is made, the change becomes law at the local level and may be utilized by the local jurisdiction and/or applicants.
If the State’s goal is to expedite housing production across the State, and the Coastal Zone is no exception, the legislature may want to consider parameters to the coastal certification process to expedite housing production in the Coastal Zone.
For example – ordinances to implement the State’s allowances for ADUs and SB 9 development are all the rage. Once adopted by the governing body of a non-coastal jurisdiction, the changes are law in 30 days. However, for coastal jurisdictions, the change will not become law for an additional 1.5 years or more. If expediency is the legislature’s intent to address the statewide housing crisis, it is occurring much slower in the Coastal Zone. The upside is that this appears to be preventable.
If the Legislature desires to continue its practice of harmonizing the Government Code and Public Resources Code for State housing mandates, it may want to consider a simple and effective change to the legislative process when amending LCPs for coastal jurisdictions seeking to implement State housing law:
Obligate that for any housing-related LCP amendment, the Coastal Commission must act within the initial 60 or 90-day period and may not exercise its option for a one-year time extension.
This step alone could incentivize housing production at least 1.5 years sooner than currently experienced within the Coastal Zone.
For questions, please contact Joseph Smith at email@example.com. The opinions in this article are solely the opinions of the author and do not represent the opinion or position of any agencies or clients that California Coastal Works, LLC or Joseph Smith has represented or may represent in the future.
Proposed 2022 Lineup of Key State Housing Bills under Consideration.
See https://leginfo.legislature.ca.gov to view specific bill language.
Accessory Dwelling Units and Residence Bedrooms:
- AB 916 (Salas D) Zoning: accessory dwelling units: bedroom addition.
- AB 2221 (Quirk-Silva D) Accessory dwelling units.
- SB 897 (Wieckowski D) Accessory dwelling units: junior accessory dwelling units.
Density Bonus / Development Bonus
- AB 682 (Bloom D) Planning and zoning: density bonuses: cohousing buildings.
- AB 1551 (Santiago D) Planning and zoning: development bonuses: mixed-use projects.
- AB 2334 (Wicks D) Density Bonus Law: affordability: incentives or concessions in low vehicle travel areas: parking standards: definitions.
- AB 2295 (Bloom D) Local educational agencies: housing development projects.
- SB 1369 (Wieckowski D) Adaptive reuse projects: by-right: funding.
- AB 2097 (Friedman D) Residential and commercial development: remodeling, renovations, and additions: parking requirements.
- SB 1067 (Portantino D) Housing development projects: automobile parking requirements.
- AB 500 (Ward D) Local planning: coastal development: streamlined permitting.