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Battle Lines Drawn Over State Housing Bill


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By Jorge Casuso

March 29, 2023 -- A State housing bill that would extend and expand a key "builder's remedy" provision tested in Santa Monica cleared its first hurdle last week as opponents prepare to mount a counter-attack at the ballot box.

Proponents of SB 423, authored by Senator Scott Wiener, say it will "turbocharge" residential development during a statewide housing crisis; opponents counter it "undermines local democracy."

The proposed bill would indefinitely extend the January 1, 2026 expiration of SB 35, a 2017 bill Wiener sponsored that allows developers to bypass local zoning laws if a City fails to meet its State housing plan requirements.

It also would expand SB 35 to nearly all cities, including those in the coastal zone, give the State authority to approve housing developments on property it owns or leases and bars cities from enforcing their inclusionary housing ordinance if the income limits are higher than those in the proposed law.

At a press conference in San Francisco last month to unveil SB 423, Wiener said the existing bill had spurred the development of 18,000 units statewide, three quarters of them below market rate.

SB 35, Wiener said, "is a good government measure that will allow us to accelerate home construction" by issuing building permits to developments that meet all the State rules "without a hyper-politicized, chaotic process that can take years and lead to litigation."

Brian Hanlon, CEO of California YIMBY (Yes In My Back Yard), called SB 35 “one of the most powerful pro-housing laws of modern California history,” according to coverage of the press conference.

Once approved, Hanlon said, the bill "will turbocharge the construction of mixed-income housing, just as SB 35 did for subsidized affordable housing."

Opponents of the proposed law, including the California League of Cities, charge that the State is usurping the authority of local governments and the voice of their residents.

"Overarching laws like SB 423 undermine local efforts to spur housing construction," the League said in a statement.

"No other set of laws requires cities to spend millions of dollars developing complex, multiyear plans with their residents, which are then ultimately overridden by the state every year."

That was the case in Santa Monica, whose failure to produce a compliant housing element on time opened the door to a sudden flood of development submissions last fall ("Housing Plan Delays Led to Loss of Local Control," October 14, 2022).

In the final two weeks before the State approved the City's plan, 16 proposals totaling 4,562 units, of which 941 are affordable, were filed ("City Officials Caught Off Guard by Flurry of Development Submissions," October 13, 2022).

Under the builder's remedy provision in SB 35, proposed housing developments can bypass the City's zoning code and general plan and require minimal public input if the City's housing plan has not been approved by the State.

On Wednesday, Our Neighborhood Voices, a statewide coalition of communities, warned that SB 423 "undermines local democracy by removing the ability of communities to plan and prepare for what is built in their neighborhoods.

"It also can accelerate damaging ‘Builders Remedy’ projects across the state that see massive projects built in residential neighborhoods without adequate planning for water, schools, transit, safety fire danger and other priorities."

Our Neighborhood Voices said it is organizing to qualify a citizen-led ballot initiative "that would protect the ability of local communities to adopt laws that shape local growth, preserve the character of neighborhoods, and require developers to produce more affordable housing and contribute to the costs associated with it."

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