SB 2011: Affordable Housing Yes, NIMBY’s No

On September 29 Governor George Deukmejian signed into law SB 2011 by Senator Leroy Greene (D-Sacramento), pulling California at the nation’s cutting-edge in clamping down on local NIMBY (Not in My Backyard) land use controls.

The new law (Chapter 1439) which will take effect on January 1, 1991, prohibits a city or county, including a charter city, from denying approval of housing projects affordable to low and moderate income households. Six narrowly drawn exceptions are permitted if the local government can prove with substantial evidence that the following conditions exist:

1. The jurisdiction has a housing element that complies with state law and the project is not needed to meet low-income housing needs.
2. There would be a specific adverse impact on public health or safety.
3. Approval is not permitted because of specific state or federal law.
4. Approval would lead to overcrowding of low-income housing in a neighborhood with an existing disproportionate number of low-income households.
5. The project is on land zoned for agricultural or resource preservation if it is surrounded on two sides by land in such use or water or wastewater facilities are not available at the site. The act encourages infill.
6. The development project is inconsistent with general plan land use designation as it existed on the date of application but only if the jurisdiction has adopted a housing element that complies with law.

The act also makes clear that state laws such as CEQA, the Coastal Act, and the Congestion Management Program are not superseded by the new law.

Moreover, the law will permit appropriate development standards, fees, and exactions with two important caveats. First, the development standards must be appropriate and consistent with the numerical housing unit objectives of the housing element. Development standards which have the effect of making low or moderate income housing infeasible would not meet this test.

Second, fees and exactions are limited to those “essential to provide necessary public services and facilities to the development project.”

Housing projects which qualify are those where 20 percent of the units are affordable to households with incomes of 80 percent or less of area median and where the remaining 80 percent of the units are affordable to households with incomes of 120 per cent or less of area median.

The units affordable at 80 percent of median are required to be maintained affordable for thirty years. Under an existing law these housing projects will also be eligible for density bonuses.

The Politics of Anti-NIMBYism

SB 2011 experienced substantial opposition as it moved through the Legislature, most of which came from cities and counties, the Sierra Club, and the California Farm Bureau.

But the opposition was defeated by a unique coalition of interests which included the business community, housing industry, low-income advocacy groups, religious groups, and mental health groups. The bill co-sponsors were the California Chamber of Commerce, California Housing Council, and Associated General Contractors.

Opposition on the floor of the Assembly came from two sources. Some conservative Republicans agreed with Assemblyman Bill Baker (R-Danville) who opposed SB 2011 because “The bill doesn’t let cities and counties have much to say about what kind of housing they have in their communities and where they’re going to have it.”

Yet some liberal Democrats also opposed SB 2011. Assemblyman Sam Farr (D-Carmel) argued that the bill was the wrong approach to meeting housing needs, preferring more regulation on the housing industry and increased government subsidies. Nevertheless the bill was approved by the Assembly on a bipartisan 48-23 vote and by a bipartisan 26-5 vote in the Senate.

“We have communities who are turning their back on affordable housing,” says Chamber of Commerce representative Dave Kilby, explaining the importance of SB 2011 to the business community. “If we don’t rectify this, we will have major problems with corporate retention and job attraction.”

A Message to Local Governments

William Powers of the Los Angeles based Western Center on Law and Poverty called SB 2011 “a significant step forward in getting affordable housing built in communities which have not taken the problem seriously.”

Although SB 2011 does not end the shortage of affordable housing, the Legislature and Governor sent a clear message to local governments that they could not continue to hide behind environmental and fiscal concerns while ignoring housing needs.

SB 2011 also increases the importance of the housing element of the general plan. Local governments can keep control of their zoning only if they adopt housing elements to meet their fair share of the regional housing need.

With the approval by the Governor of SB 2274 (Chapter 1441) by Senator Marian Bergeson (R-Newport Beach) it will be very difficult, if not impossible, for a local government to evade meeting its fair share of the regional need and still be in compliance with state law.

The Legislature will closely scrutinize how local governments implement SB 2011 over the next two years. According to Terri Bressler, Consultant to the Senate Committee on Housing and Urban Affairs, “The interaction of SB 2011 and SB 2274 dramatically changes the context for local planning as it relates to affordable housing. We will need to closely monitor how conscientiously local governments carry out their responsibilities.”