HCD Reviews Coastal Height Limits
In a Letter for Technical Assistance to the City of San Diego, HCD asserted that State Density Bonus Law preempts local height limits adopted by initiative, if the locally adopted height limit would prevent the development of affordable housing and bonus units authorized by a density bonus application. HCD cited long-established legal principles in support of its position: local legislation that conflicts with state law is preempted by such state law, and therefore void. HCD’s letter noted, however, that height limits adopted in a Coastal Zone pursuant to the Coastal Act might not be void where those height limits were adopted pursuant to state law.
Under State Density Bonus Law, proposed housing projects that are consistent with general plan, zoning and other development standards, and that include onsite affordable units (ranging from 10-100% of the base units) have a near-automatic right to additional density, along with limited discretion for cities or counties to deny such projects. The amount of the density bonus falls within a range, based on the amount of affordable units provided onsite. State Density Bonus Law also requires cities and counties to provide a certain number of “incentives” that provide cost reductions, and an unlimited number of waivers of local development standards, if those waivers are needed to include the bonus and affordable units on the project site.
HCD’s letter noted that, under State Density Bonus Law, certain affordable projects within one-half mile of a major transit stop are automatically allowed a height increase of up to three additional stories, or 33 feet (in addition to other waivers of development standards). A density bonus project in the City of San Diego may therefore exceed a 30-foot building height limit established by the City’s Coastal Height Limit Overlay Zone. HCD further made it clear that the adoption of a height limit by local voter initiative does not allow the City to supersede state law. HCD’s opinion is even more noteworthy given that project applicants have strong remedies for enforcing violations of State Density Bonus Law in court. In actions challenging the denial of a density bonus project, the burden is on the city or county to show the denial was appropriate, and State Density Bonus Law authorizes the award of attorney’s fees if a developer successfully challenges such denial.
HCD’s technical guidance has implications throughout cities and counties with coastal height limitations outside of the Coastal Zone. For instance, in San Francisco, a voter initiative requires voter approval for any future construction on the San Francisco waterfront that exceeds height limitations found in the City and Couny’s zoning code. That requirement for voter approval may be at odds with State Density Bonus Law, for the same reasons as HCD opined in its letter to San Diego. HCD's guidance could facilitate projects with an affordable housing component to exceed San Francisco’s waterfront height limitation, pursuant to a density bonus application, if the additional height is needed to facilitate the additional affordable or bonus units, and provided that the project in all other respects complies with the applicable general plan and zoning standards for the site.
San Francisco’s waterfront initiative may be one of numerous planning practices in HCD’s crosshairs, as HCD announced on August 9, 2022, that it will be comprehensively reviewing San Francisco's housing policies and practices to identify practices that evade or violate state law. David Zisser, the director of HCD’s Housing and Accountability unit, followed up later in August to note that HCD will likely focus its only comprehensive housing process review on San Francisco, at this time.
Other developments in Sacramento could significantly alter development planning in coastal cities, such as Assembly Bill 2011, which was recently adopted by the State Senate and which would facilitate a ministerial, “by-right” approval of residential projects in commercially zoned areas. AB 2011 has been criticized by municipal groups for usurping local control of planning and zoning, however, its impact remains to be seen even if it is signed by Governor Newsom, given its provisions for complying with prevailing wage laws and other aspects of the legislation.
If you have questions about the ongoing efforts by HCD or the California legislature to combat the housing and affordability crisis, or any other land use issue you are facing, please contact the authors or the Hanson Bridgett Land Use Group.
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