Sen. Wiener’s Affordable Housing Mandate for Cities Extended

Turning all of California into San Francisco one bill at a time seems to be Senator Scott Wiener’s goal.

Sen. Wiener (D-San Francisco) announced gleefully today that the Senate passed his Senate Bill 423, legislation to extend his SB 35 from 2017, “one of the state’s most successful tools for accelerating development of affordable housing,” according to the Senator. SB 423 eliminates the sunset date on SB 35 which created “a streamlined, ministerial approval process for infill developments in localities that have failed to meet their regional housing needs assessment (RHNA) numbers.”

According to the Senate Rules Committee, SB 423 “Allows a development proponent to submit an application for a development that is subject to the streamlined, ministerial approval process, and not subject to a conditional use permit if the development contains two or more residential units and satisfies specified objective planning standards, including the following.

It would also allow the Department of General Services to step in and act in the place of local government to streamline review for development on property owned by or leased to the state. So cities and counties won’t have a say on how state-owned property will be developed.

“Taking steps to strengthen and extend SB 35, one of our strongest tools to boost housing production, is an absolutely essential step to tackle the crisis of housing affordability,” said Senator Wiener. “Cities across California are relying on this legislation to meet their housing goals. I’m delighted by the growing support this bill has attracted from my colleagues, the labor movement, anti-poverty groups, and business leaders, and I look forward to working with my colleagues in the Assembly to advance the bill further.”

However, the League of California Cities and member cities, as well as neighborhood groups, are opposed to SB 423 because it proposes a “one size fits all solution” without allowing for public input or environmental review, according to bill analysis. “California Contact Cities Association oppose due to concerns over loss of local control and assertion that this bill would disregard local zoning and land use planning policies as well as bypass CEQA.”

We are already seeing the impacts of SB 35  with the state suing the cities of Elk Grove and Huntington Beach over unmet state mandated affordable housing requirements.

“Attorney General Rob Bonta announced that he, Governor Gavin Newsom, and the California Department of Housing and Community Development (HCD) will be suing the city of Elk Grove in Sacramento County over their rejection of a plan for 66 units of affordable apartment housing and allegedly violating a 2017 state law designed to quickly approve low-income housing,” the Globe reported May 2, 2023.

The state sued the city of Huntington Beach in March for not allowing more units built on properties due to application limits. And that was after several years of legal wrangling.

In 2019, almost immediately after taking office, Gov. Gavin Newsom announced he was singling out the city of Huntington Beach, CA by filing a lawsuit against the city over a lack of affordable housing. “The time for empty promises has come to an end,” said the lawsuit, filed by then-Attorney General Xavier Becerra. “The City should not be allowed to avoid its statutory obligations any longer.”

Yet there were 50 cities on the list not addressing the housing crisis as the state mandated. Then-Sen. John Moorlach (R-Costa Mesa) who represented Huntington Beach, took umbrage with Newsom and issued a harsh statement, which clearly and concisely explained why the state mandate of affordable housing was heavy handed, and not good policy:

Over the 4 years I have served in the State Senate, I have labored diligently to reduce the cost of housing in California so every person and family could afford a roof over their heads. That includes attempts to reform the California Environmental Quality Act, address infill constraints, and create opportunities for denser housing near transit centers. However, the state government continues to erect more burdensome obstacles in the form of higher taxes on real estate transactions and more regulatory hurdles, rather than houses. Additionally, the dark cloud of litigation hangs over the heads of developers who want to make good on the idea of affordable housing.

Sen. Moorlach pointed out that the State of California “filing a lawsuit against one of its 482 cities is the first clash between the philosophies of local control versus centralized control out of Sacramento.”

Moorlack called for “striking a balance.”

“If the Governor thinks that using heavy-handed litigation tactics that will divert the city’s time, energy and resources to respond to obstructive and otherwise frivolous lawsuits will help them achieve their goals, then he needs to re-evaluate his priorities.”

Well, that didn’t happen, and the governor and Attorney General sued Elk Grove.

As the Globe noted, cities don’t build houses, developers do. With all the regulatory and licensing obstacles in place, developers already have difficulty building in California, much less “affordable housing.” The estimate of city/county/state fees and licensing costs is $100,000 per home, before ground is even broken, depending on the region.

Worse yet, Gavin Newsom’s home county of Marin has enjoyed a moratorium on affordable housing building requirements until 2028, the Globe reported in 2019. Sneaky language inserted into a in 2017 budget trailer bill allowed Marin County to maintain its extra restrictions on how many homes (“affordable homes) developers can build, giving the finger to the California Anti-NIMBY Statute.

Gov. Newsom and his wife sold their Marin County home in 2021 for $5.9 million.

In 2017 Assemblyman Marc Levine (D-San Rafael) let Marin County, one of the wealthiest regions in the state, maintain extra restrictions on how many homes can be built, extending the Marin exemption until 2028.

“But Democrats who posture as fierce advocates for more housing, even those carrying high-profile housing bills, such as Sens. Toni Atkins and Jim Beall, voted for it and Gov. Jerry Brown signed it,” Dan Walters reported. “For at least another decade, therefore, Marin’s residents can smugly assume that their bucolic lifestyles will not be marred by having more neighbors who don’t make as much money and, you know, just don’t fit in.”

The word “smarmy” comes to mind: smug, insincere, oily, unctuous.

SB 423 passed 29-5 with bipartisan support and heads next to the Assembly, where it must pass by September 14, Sen. Wiener said.