Wiener's SB 592: A WIMBY 'Snake in the Grass'

Hydee Feldstein: Senator Wiener’s land-use legislation has never been a debate or a conversation about policy, affordability, or homelessness. He ducks out of town halls or only takes friendly softball questions. He does not take serious questions or legitimate debate about the substance of his industry drafted bills. But even substance aside, the tactics, tricks, and sneakiness of SB 592 (as well as SB 330, AB 1487, and several other industry-drafted bills this legislative season) are reprehensible, usually incomprehensible to the average legislator and the average citizen, and increasingly shameless in their grasp.

In 2017, the California Legislature passed a comprehensive package of 15 housing bills that became effective January 1, 2018. While not perfect from anyone’s perspective, that package balanced the different policies and alternatives and was determined to be the best way forward to create affordable housing and address the housing needs in our state. Not even one construction cycle has elapsed since those bills came into effect, yet industry has already come back—through their lobby and certain legislators—to try to undo all that was accomplished in 2017. The 2019 legislative package is an effort to roll back the requirements for inclusionary affordable housing (by way of retroactive application in SB 330 and other bills) and to trample all over local control, safety, habitat, conservation, historic preservation, and other elements of good planning that were taken into account, though weakened, in the 2017 compromise legislation.

Neither our Legislature nor our Governor should allow this important a set of policies to be passed through public deception or determined by industry legislation apparently fueled by the desire to prevail at all cost. SB 592 and its companion bills completely fail to meet the standards of transparency, candor, and accountability to which we should hold our elected representatives.

The Gut and Amend

A “gut and amend” may technically be legal in California, but that does not make it moral or good governance. The gut and amend of SB 592 bespeaks a legislator unable to accept consensus and all too willing to prepare bills that can serve as vehicles for these kinds of legislative maneuvers. SB 592 is such a bill. It was introduced by Senator Wiener on February 22, 2019 as a simple amendment to the Health & Safety Code: to extend the due date by which the California Department of Housing & Community Development (HCD) has to deliver its annual report from December 31 to June 30.  Not a controversial bill or even one likely to awaken any public interest, but because the term “housing” appeared in the bill, SB 592 still found its way onto at least a few radar screens for tracking.

Then, on March 27, Senator Wiener gutted and amended SB 592 to drop the Health & Safety Code provisions and any reference to housing. Instead, SB 592 became a vehicle to amend Business & Professions Code section 7400 to require the Board of Barbering and Cosmetology (BBC) to update the public profile of a licensee (in addition to updating its own records as required under existing law) if BBC receives a notification that the licensee’s address has changed. Again, not a controversial or even necessary bill, but the change meant that the bill no longer mentioned ”housing”, “land use,” or any of the other search terms that could land a bill on the radar screen of anyone following Senator Wiener’s views on real estate matters. So, nothing to see here, folks—just barbers and cosmetologists updating their public profiles. 

Previously in CityWatch LA, I identified SB 592 as a prime target for a “gut and amend” to try to pass SB 50 provisions this year, partly because SB 592 had successfully passed the Senate Appropriations Committee (where SB 50 had been suspended). On June 13, 2019, that is exactly what Senator Wiener did. He gutted and amended SB 592 to transform it into a “housing accountability act."

Affordability Components

SB 592 aligns with the first part of SB 50 and the first part of SB 330 pretty closely, though not exactly, in amending Government Code Section 65589.5. The key provision for affordability in paragraph (d) requires the approval of any “housing development project” for “very low, low-, or moderate-income households or any emergency shelter” unless the project fails on narrowly defined grounds related to public health and safety no matter how inconsistent the project may be with local zoning. Similarly, paragraph (i) restricts conditions and lower density “that have a substantial adverse effect on the viability or affordability of a housing development for very low, low-, or moderate-income households.” Even these provisions that do include affordability elements are too sweeping an intrusion into good planning and local control, since they permit the placement of a structure anywhere without regard to city services, infrastructure, or other legitimate concerns.

Other than (d) and (i), however, the rest of SB 592 has nothing to do with affordable housing or shelters. It accomplishes the parcel zoning and relief from density as proposed in SB 50, but in an even more underhanded manner.

Market-Rate Housing: Gutting of All Other Zoning for which a Variance or Conditional Use May be Authorized by a Zoning Administrator or Planning Commission

SB 592’s section 65589.5(j), upends all zoning and conditions for ALL proposed “housing development projects” with very limited exceptions. Whether by error or advertence, paragraph (j) prohibits a local authority from disapproving any “housing development project” on the grounds that its density is not allowed UNLESS the city or county (within 30 days) makes specific written findings based on that the preponderance of the evidence in the record (the record generally consisting solely of the application as deemed completed) that ALL the items listed below are true.

Section 65589.5(j)(1)(A) :

i. “the housing development project” is found to have “a specific, adverse impact upon the public health or safety” (which has a definition that is just about impossible to meet); and

ii. There is “no feasible method to satisfactorily mitigate or avoid the adverse impact” except disapproval or lower density for this project.

(B) The density proposed is inconsistent with mandatory provisions of the general plan and parcel zoning that cannot be varied by application, zoning administrators, planning commissioners or other authorities (“a general plan, zoning, or subdivision standard or criterion is not ‘applicable’ if . . . the project could be approved without the standard or criterion being met”);

Of course, in many cities and counties, there are few mandatory provisions of the general plan or zoning because an applicant can apply for a variance or a conditional use permit, and, often and especially with community support, the application will be granted. If a project “could be approved without the standard or criterion being met,” then SB 592’s section 65589.5(j)(i)(B) renders the restrictions inapplicable, automatically requiring the approval (including all “nonresidential” uses) of the housing development project.

So, Subdivision (B) could put zoning administrators and planning commissions out of work. Despite the lead-in to (j) that it is applicable only “when a proposed housing development project complies with applicable, objective general plan, zoning, and subdivision standards and criteria, including design review standards,” the new sneaky carveout in (j)(1)(B) makes just about all zoning not applicable.

Subdivision i. does not permit consideration of the health or safety of the occupants (eg. fire exits, overcrowding, insufficient sanitation or cooking facilities, etc) or the cumulative effect of housing development projects in a neighborhood on public health or safety (eg. evacuation routes, city services requirements for police, fire, paramedics, impact on trash collection, load on infrastructure and utilities, etc).

Subdivision ii. begs the question: Since most adverse impacts can be mitigated given enough money, who pays? While SB 592 does not say so explicitly, the implication seems to be that the local authority would. This is an unfunded mandate for which the State would have to pay for services and infrastructure.

Elimination of Use and Density Restrictions in SB 592

SB 592, like SB 330, defines “housing development project” to include “mixed-use developments consisting of residential and nonresidential uses” and “transitional housing or supportive housing,” all without any reference to underlying zoning or use restrictions. SB 592 then expands the definition of “housing development project” [(h)(2)(iii) (B) and (C)] to add two new elements to the mix that no other bill has addressed, and includes “a single unit” and “the addition of one or more bedrooms to an existing residential unit."

SB 592 also adds a new definition in 65589.5(h)(6) for “conditions that have the same effect or impact on the ability of the housing development project to provide housing” shall include, but are not limited to, each of the following:

(A) Reduction in the number of bedrooms or other normal residential features, such as a living room or kitchen.

(B) The substantial impairment of the housing development project’s economic viability.

SB 592’s examples of impermissible conditions that “lower density” mean that a project MUST be approved, no matter how many bedrooms it creates in any zoning and no matter how large a single-family home is built. Paragraph (j), coupled with the revised definition of “housing development project,” validates the co-housing, communal living, corporate housing, extended stay, and private clubs cropping up in residential neighborhoods where zoning otherwise would prohibit such arrangements. These are not residential uses consistent with neighborhood zoning, but rather businesses that chop up interior space to maximize beds and provide shared kitchen, bath, and common living areas, renting out each bed in a shared space and often filling empty beds on a short-term basis with business travelers and tourists. SB 592 makes it impossible for a city or county to regulate these arrangements, no matter how much they may disrupt current zoning, require additional services, burden infrastructure, or disrupt neighborhoods.

At the opposite end of the spectrum, by including “a single unit” in the definition of a housing development project, the provisions of SB 592 (like those of SB 50) permit McMansions and luxury compounds, albeit in a more subtle (or, some might say, sneaky) manner. By permitting the “flex density” on a statewide basis on every parcel and making all zoning provisions that can be varied on application and public hearing not “applicable”, SB 592 requires the approval of a McMansion, condo, or rental apartment building with a hotel and restaurant or any number of commercial, retail, or other nonresidential uses anywhere in California, even within a single-family residential zone.

SB 592 also “deems” a project to be compliant (no matter how wildly noncompliant it is) unless the City meets its burdens of responding in writing, specifically with reasons not just under the City’s own laws, but only under the subset of the City’s laws that SB 592’s language allows to be applicable. That is an intolerable burden to place on the ministerial staff that approves by right projects and creates a significant unfunded mandate. To add insult to injury, SB 592 also makes the city liable for damages to the developer, to anyone eligible to apply for residency in the proposed project, and to housing organizations—but does not give adjacent owners or neighbors the right to sue the developer for projects that are noncompliant.

So, all of the following is gone under SB 592:

• Residential zoning. Any “non-residential” use is permitted up to 1/3rd of the space of a project, including the running of a hotel, extended stay, corporate, boarding or rooming house, dorm or other business renting out a bed or other “residential” space.

• Low-density zoning of any kind, particularly single-family or two-family zoned residences.

• Architectural, design, historic and aesthetic standards. All areas now are open to Soviet-style grey cinderblock construction or Robert Moses-style overcrowded projects.

• All “objective” zoning criteria if a project “could be approved” on a variance or conditional use or any other discretionary request.