Gov. Newsom Signs Sen. Wiener’s Housing Density Legislation

On September 16, 2021, Governor Gavin Newsom signed into law Senate Bill 10 (D- San Francisco) related to housing development and local zoning ordinances. It is Chapter 163.

Section One of the bill adds Section 65913.5 to the Government Code to provide that, despite any local restrictions on adopting zoning ordinances enacted by the jurisdiction that limit the legislative body’s ability to adopt zoning ordinances, a local government may adopt an ordinance to zone a parcel for up to 10 units of residential density per parcel, at a height specified by the local government in the ordinance, if the parcel is located in either a transit-rich area or an urban infill site.

However, a local government is prohibited from adopting an ordinance pursuant to this new law on or after January 1, 2029. An ordinance adopted in accordance with this new law, as well as any resolution to amend the jurisdiction’s General Plan, does not constitute a project under CEQA.

Nonetheless, this new section of law does not apply to parcels located within a very high fire hazard severity zone or within a high or very high fire hazard severity zone. Nor does it apply to any local restriction enacted or approved by a local initiative that designates publicly owned land as open-space land, or for park or recreational purposes.

This new section of law requires a legislative body to comply with the following provisions when adopting a zoning ordinance under this new statute:

• The zoning ordinance must include a declaration that the zoning ordinance is adopted pursuant to this section.
• The zoning ordinance must clearly demarcate the areas that are zoned pursuant to this section.
• The legislative body must make a finding that the increased density authorized by the ordinance is consistent with the city or county’s obligation to affirmatively further fair housing.
• If the ordinance supersedes any zoning restriction established by a local initiative, the ordinance can only take effect if adopted by a two-thirds vote of the members of the legislative body.

In addition, a residential or mixed-use residential project consisting of more than 10 new residential units on one or more parcels that are zoned pursuant to an ordinance adopted under this section cannot be approved ministerially or by right and is not be exempt from CEQA.

Moreover, this new provision of law does not apply to a project located on a parcel or parcels that are zoned pursuant to an ordinance adopted under this section, but subsequently rezoned without regard to this section. The creation of up to two accessory dwelling units and two junior accessory dwelling units per parcel does not count towards the total number of units of a residential or mixed-use residential project when determining if the project may be approved ministerially or by right.

Additionally, a project may not be divided into smaller projects in order to exclude the project from the prohibition in this subdivision. And, an ordinance adopted pursuant to this section cannot reduce the density of any parcel subject to the ordinance, nor can a legislative body that adopts a zoning ordinance pursuant to this section subsequently reduce the density of any parcel subject to the ordinance.

This new section of law also defines the following terms: “high-quality bus corridor” (meaning a corridor with fixed route bus service that meets specified criteria), “transit-rich area” (meaning a parcel within one-half mile of a major transit stop or a parcel on a high-quality bus corridor), “urban infill site” that meets specified criteria.

Finally, the Legislature finds and declares that provision of adequate housing, in light of the severe shortage of housing at all income levels in this state, is a matter of statewide concern and is not a municipal affair and, as a result, this section applies to all cities, including charter cities.