Monday, November 27, 2017

Liang - Opposition Letters from the League of California Cities


From: Liang C
Date: Mon, Nov 27, 2017 at 11:24 AM
Subject: Opposition Letters from the League of California Cities
To: City Council <citycouncil@cupertino.org>, "City of Cupertino Planning Dept." <planning@cupertino.org>, David Brandt <davidb@cupertino.org>



Dear City Council Members and Planning Staff,
I am sure that you are aware that the League of California Cities, which Cuperitno is a member of, supports SB 2, SB 3 and SB 540 and opposes some other housing bills: SB 35, AB 1515, AB 678/SB 167 (same bill), AB 879, AB 72 and AB 1397.
Please pay special attention on the reasons that the League oppose these bills. I wish that the city staff could give the council and the citizens an overview on the reasons that the League opposes these bills, since these bills make the city vulnerable.

The following blog includes quotes from the opposition letters from the League to the Governor Brown to oppose SB 35, AB 1515, AB 678/SB 167 (same bill), AB 879, AB 72 and AB 1397.
The responsibility of the City Council and the City Staff are to look out for the best interest of the City and protect us from exploitation as a result of intended or unintended consequences of these new bills.

Please do not consider these bills from the point of view whether it will impact one project or one developer, but how it will impact all future projects.

Sincerely,

Liang C
Cupertino Resident


League of California Cities Oppose Some Housing Bills - Why? 

On September 29, 2017 Governor Brown signed 15 housing bills into law. These housing bills are outlined here: BroadAffordable Housing Bill Package Signed by Governor, by Meyers and Nave Attorneys.

The League of California Cities supports SB 2, SB 3 and SB 540 and opposes some other housing bills: SB 35, AB 1515, AB 678/SB 167 (same bill), AB 879, AB 72 and AB 1397. Positions taken by the League in August 2017: http://ctweb.capitoltrack.com/public/publish.aspx?id=55380CA4-DB57-4888-8D35-88EED2D1B1C
Search the position of the League for each bill at http://www.cacities.org/Policy-Advocacy/Bill-Search.

In the opposition or request-to-veto letters submitted by the League, it states.
"The League agrees that California is facing a housing supply and affordability crisis. In fact, one of the League’s four strategic goals for 2017 is focused on improving the affordability of workforce housing and securing additional funds for affordable housing. Unfortunately..."

  • "SB 35 is not the balanced proposal that is needed to provide meaningful relief from soaring home prices." (From SB 35 Request to Veto Letter)
  • "AB 1515 goes too far by allowing a court to select the substantial evidence in the record that it relies on to determine whether a project is consistent with local planning. Local governments are in the best position to determine whether a project is consistent with the adopted general plan and zoning requirements." (From AB 1515 Request to Veto Letter)
  • AB 678/SB 167 "would upend longstanding separation of powers principles enshrined in the Constitution rather than address any potential shortcomings in the Housing Accountability Act." (From AB 678 Opposition Letter)
  • "AB 879 would essentially require mitigation fees to be substantially reduced without providing other funding for services and infrastructure that are required to serve new development." (From AB 879 Request to Veto Letter)
  • AB 72 greatly expand the workload of the Department of Housing and Community Development (Department) by providing it broad and nearly unlimited new authority to review any action by a city or county that it determines is inconsistent with an adopted housing element. (from AB 72 Request to Veto Letter)
  • AB 1397 requires prcels on a jurisdiction's Housing Element site list to have “realistic and demonstrated potential” for development during the planning period. For example, parcels in the inventory would be required to have sufficient water, sewer, and dry utilities infrastructure to support housing development or be included in a jurisdiction’s existing general plan program or other mandatory plan – including a public or private utility provider’s plan – to secure sufficient infrastructure to support housing development. (ABAG-MTC Summary of Significant Housing Bills)
Each of these bills attempts to make it easier for the developers to build more housing faster. But at what cost? How will each of these bills affect the operations of the city governments?

SB 35 (Wiener) Affordable Housing: Streamlined Approval Process (Quotes from SB 35 Request to Veto Letter) - applied for some projects that qualify for the streamlined process.

  • SB 35 (Wiener) would preempt local discretionary land use authority by making approvals of multifamily developments that meet inadequate criteria, “ministerial” actions. Like similar proposals in the past, this measure would rely on often outdated community plans and would compromise critical project level environmental review, public input, and community integrity.
  • SB 35 is not the balanced proposal that is needed to provide meaningful relief from soaring home prices.
  • Eliminating opportunities for public review of major multifamily developments goes against the principles of local democracy and public engagement. Public hearings allow members of the community to inform their representatives of their support or concerns. 
  • “Streamlining” in the context of SB 35 appears to mean a shortcut around public input. While it may be frustrating for some developers to address neighborhood concerns about traffic, parking and other development impacts, those directly affected by such projects have a right to be heard. Public engagement also often leads to better projects. Not having such outlets will increase public distrust in government and result in additional ballot measures dealing with growth management.
  • An applicant must request review under the streamlining provisions. A jurisdiction then has 60 days from submittal (90 days for projects with more than 150 units) to provide the applicant with written notice of any objective development standards that the project does not satisfy and an explanation for the conflict; failure to meet this timeframe results in a project being deemed consistent with such standards. (Recent Developments in CaliforniaHousing Legislation: Summary of 2017 Housing Legislation by Goldfarb and Lipman Attorneys)

AB 1515 (Daly) Housing Accountability Act (Quotes from AB 1515 Request to Veto Letter, except when noted) - Unlike SB 35, these bills affect every housing development application reviewed by local government.

  • AB 1515 gives much less deference to local government's findings of consistency with local plans, allowing courts to give just as much weight to an applicant's evidence of consistency. (Law Alert 2017-09-19 Legislature Passes Major Overhaul ofCalifornia Housing Laws by Goldfarb Lipman Attorneys)
  • AB 1515 (Daly), which would essentially allow a court to determine whether a project is consistent with local zoning and general plan by selecting the substantial evidence it wishes to rely on rather than reviewing whether the city council relied upon substantial evidence.
  • AB 1515 would deviate from longstanding judicial precedent that clearly outlines the role of the city council and the process by which a court may review a local determination.
  • The League believes that AB 1515 goes too far by allowing a court to select the substantial evidence in the record that it relies on to determine whether a project is consistent with local planning. Local governments are in the best position to determine whether a project is consistent with the adopted general plan and zoning requirements.

  • This new standard may make it more difficult for local governments to deny projects, because if a court finds that evidence of project consistency submitted by an applicant is reasonable, the project may be found consistent even if the local government has better evidence that the project is inconsistent. The standard will also make it more difficult for project opponents to challenge a project as inconsistent when the local government has found it to be consistent. (Recent Developments in CaliforniaHousing Legislation: Summary of 2017 Housing Legislation by Goldfarb and Lipman Attorneys)

AB 678/SB 167 (Bocanegra) Housing Accountability Act (Quotes from AB 678 Opposition Letter, except when noted)- Unlike SB 35, these bills affect every housing development application reviewed by local government.



  • AB 678 (Bocanegra) would, among other things, significantly alter the burden of proof for the denial of a housing project, allow a judge to order the approval of a housing project, and require the imposition of a minimum fine of $10,000 per unit in a denied housing project.
  • AB 678 would upend longstanding separation of powers principles enshrined in the Constitution rather than address any potential shortcomings in the Housing Accountability Act.
  • AB 678’s application of the clear and convincing evidence standard turns this entire system on its head by asking not whether the city council has an evidentiary basis for how it applied the law to the facts, but whether the facts are as the city council says they are. This inquiry makes no sense when the purpose of an action under section 1094.5 is to challenge the way in which the city council applied the law to the facts.
  • Under existing law, if a city council fails to make the necessary findings to deny a project, the court sends the project back to the city council accompanied by an order to comply with the law: either approve the project or deny it with adequate findings. AB 678 further violates the separation of powers clause by allowing the court to order the city council to approve the project whether or not the evidence in the record supports the approval.
  • AB 678 and SB 167 (identical bills) require that local government provide developers with a list of any inconsistencies between a proposed project and all local plans, zoning, and standards within 30 to 60 days after the housing application is complete, or the project will be 'deemed consistent' with all local policies (Law Alert 2017-09-19 Legislature Passes Major Overhaul ofCalifornia Housing Laws by Goldfarb Lipman Attorneys)
  • "A housing organization shall be entitled to reasonable attorney’s fees and costs if it is the prevailing party in an action to enforce this section." (AB 678 Bill Text)


AB 879 (Grayson) Planning and Zoning Housing Element Reports (Quotes from AB 879 Request to Veto Letter)

  • AB 879 would essentially require mitigation fees to be substantially reduced without providing other funding for services and infrastructure that are required to serve new development.
  • This measure would also undermine a US Supreme Court decision that requires local infrastructure fees be based on the impact of a project and can only cover the cost of the infrastructure necessary to serve the project.
  • While some may insist that local development fees are too high, they are lawfully determined and necessary to fund essential services and infrastructure that are vital to the community. AB 879 could undermine important funding, thus leading to inadequate infrastructure and service delivery.
  • Adds substantial analysis to the housing element that won’t produce more housing by requiring the analysis of governmental constraints in the housing element to include any ordinances that directly impact the cost and supply of residential development. All ordinances could be determined to impact the cost of housing including critical ordinances like utility infrastructure such as sewer and water connection fees not under the control of local governments; drought requirements; building and fire code requirements like fire sprinklers; lighting; fencing; and, road and other infrastructure improvements. If there is something of specific concern, that should be addressed directly rather than requiring a review of every single local ordinance. (From Local Government Positions on Housing Bills, by American Planning Association, California Chapter, League of California Cities, Rural County Representatives of California, California State Association of Counties, Urban Counties of California)

AB 72 (Santiago) Housing Element (from AB 72 Request to Veto Letter)

  • AB 72 would create more hurdles to housing construction, rather than address any potential shortcomings in the enforcement of existing housing element law, by creating an unnecessary and overly burdensome bureaucratic review process.
  • AB 72 empowers the Department to second guess any action taken by a city or county that it determines is inconsistent with a state approved housing element, the Housing Accountability Act, or a number of other housing related laws. This system of second guessing could slow, or even halt, construction of new housing—a tragic result in today’s real estate market.
  • The bill authorizes the Department to exercise the unreviewable power to determine whether a city is in violation of state law, free from the burdens of proof and presumptions of validity that courts must apply when reviewing local land use and housing decisions, AB 72 would likely violate the constitutionally enshrined separation of powers.

AB 1397 (Low) Local Planning: Housing Element: Inventory of Land for Residential Development (From AB 1397 Request to Veto Letter)

  • AB 1397 would revise the inventory of land suitable for residential development identified in a city’s housing element to include vacant sites and sites that have “realistic and demonstrated potential” for redevelopment to meet a portion of the locality’s housing need for a designated income level.
  • AB 1397 abandons the general inventory process and instead require cities to identify land, including vacant sites, that have “realistic and demonstrated potential for redevelopment.” This change requires an analysis that is very difficult to be done since there is no way for a city to determine whether the “potential for redevelopment” is “realistic.” Additionally, if the site is vacant, then it is nearly impossible to evaluate whether the site has "demonstrated potential" for redevelopment.
  • AB 1397 places unnecessary restrictions on previously identified housing sites. More specifically, if in the previous housing element, development did not occur on certain sites listed in the inventory, AB 1397 would prohibit the current housing element inventory to include that site unless the site is zoned at Mullin densities and allows 20% affordable to lower income families by-right.
Basically, AB 879 takes away mitigation fees to provide infrastructure and services; thus less funding for the cities.AB 1515 allows the court to determine whether a project complies with local zoning and general plan, instead of the city council; thus less legal power to the cities. AB 678 makes it easier for developers and housing advocacy groups to bring a city to court, while the city is liable for attorney's fees, even for the housing advocacy groups; thus more city funding would be diverted to lawsuits. SB 35 streamlines projects to eliminate opportunities for public review; thus rights of residents affected by these projects are ignored.

These housing bills take away the rights and legal powers of local residents and governments. At the same time, these housing bills require the local governments to meet RHNA Housing Allocation at all income levels, when the local governments are not builders and have no control over development schedules even if projects are already approved.


Who are funding these housing bills?

Here are a subset of those supporting these housing bills.
  • California Building Industry Association
  • Council of Infill Builders
  • aliforniaC Conference of Carpenters
  • Los Angeles County Federation of Labor
  • Bay Area Council
  • California Apartment Association
  • California Chamber of Commerce
  • California Asian Chamber of Commerce 
  • California Asian Pacific Chamber of Commerce
  • California Business Properties Association
  • Nonprofit Housing Association of Northern California
  • Silicon Valley Leadership Group
  • YIMBY Action
  • San Francisco Housing Action Coalition
  • San Francisco Yes-In-My-Back-Yard Party
  • California Renters Legal Advocacy and Education Fund
  • California Association of Realtors 
  • California League of Conservation Voters
  • League of Women Voters
A subset of those opposing these bills:
  • League of California Cities
  • American Planning Association, California Chapter
  • California State Association of Counties
  • Rural County Representatives of California
  • Urban Counties of California
  • California State Association of Counties
  • Marin County Council of Mayors and Council Members
  • The Cities Association of Santa Clara County
  • Many individual cities and towns
REFERENCES:


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