Jennifer Hernandez is Partner and Daniel Golub is an Associate in Holland & Knight's San Francisco office
The California Department of Housing and Community Development (HCD) on Nov. 29, 2018, issued its final Guidelines for the implementation of Senate Bill 35 of 2017 (SB 35).
SB 35 requires most local governments to issue housing developers streamlined ministerial approvals, exempt from the California Environmental Quality Act (CEQA), in 90 to 180 days if a project complies with the jurisdiction's objective planning standards, pays construction workers prevailing wages, includes a specified minimum amount of affordable housing, and meets SB 35's other qualifying criteria. (For further information on SB 35, see earlier Holland & Knight alerts, "California Issues Initial Implementation Guidance on 2017 Housing Laws," Feb. 15, 2018, and "A Closer Look at California's New Housing Production Laws," Dec. 6, 2017.) The Legislature delegated to HCD the authority to issue guidelines to supplement and clarify SB 35's requirements, Gov. Code §65913.4(j), and so the guidelines "have the dignity of [the] statute itself." Ramirez v. Yosemite Water Co., 20 Cal. 4th 785, 800 (1999).
Holland & Knight drafted recommended revisions to HCD's draft guidelines in consultation with a broad coalition of housing advocates: the Bay Area Council, California Apartment Association, California Building Industry Association, California Business Properties Association, California Chamber of Commerce, Los Angeles Chamber of Commerce, Orange County Business Council, and Valley Industry & Commerce Association. The final Guidelines incorporate nearly all of the recommended revisions offered by the coalition.
For example, the Guidelines clarify that local jurisdictions can only apply standards in effect on the date of project application submission, and cannot impose application requirements beyond those required to confirm that the SB 35 criteria apply. The Guidelines also clarify the type of standards that qualify as "objective" standards. HCD also strongly emphasizes in the Guidelines that the statute and Guidelines are constitutional in all respects, and pre-empt all inconsistent local ordinances.
The Guidelines are effective as applied to applications submitted on or after Jan. 1, 2019, but are important to pending applications as well since they reflect HCD's authoritative interpretation of the statute. The leadership of HCD, especially Director Ben Metcalf, Deputy Director Zachary Olmstead and Senior Policy Specialist Melinda Coy, should be commended for this important regulatory work in assuring that SB 35 and other new housing Legislation is effective in responding to the state's housing crisis (and housing-induced poverty crisis).
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