May 20, 2019 - From the May, 2019 issue

 Sen. Wiener's SB 50 Prompts Filing of Constitutional Amendment

In the debate surrounding Sen. Wiener's SB 50, local governments are painted as culprits to blame for California's housing production and affordability crisis- problems to be solved by overriding local control over planning and land use and entrusting that power, instead, to the state. And so, for every action there's an equal and opposite reaction. TPR presents the following text of the Workforce Housing and Neighborhood Protection Act, an amendment just filed to the California state constitution that seeks to address the roles that both state and local governments have in incenting the production of affordable housing.


CALIFORNIA CONSTITUTION ARTICLE XXXIV WORKFORCE HOUSING AND NEIGHBORHOOD PROTECTION ACT [Sections 1-4]
Primary Goal: Require State housing policies to improve affordability without shifting cost burdens to local taxpayers and neighborhoods and without undermining local control.

Section 1. [Repeal prior section and replace with the following in italics.]

(a) Land-use planning and zoning are fundamentally local functions. No State law that facilitates or mandates an increase in housing density within the jurisdiction of any local government shall be enforceable if the law conflicts with any planning or zoning law adopted by the local government.

(b) Sub-section (a) shall not prevent the enforcement of a State law that facilitates or mandates an increase in housing density within the jurisdiction of any local government if both of the following conditions have been satisfied:

(1) The State has provided a level of financial support that the local government has determined will bring the infrastructure of each community affected by the increase in housing density up to the standard necessary to satisfy all federal, state, and local infrastructure requirements applicable to each such community at the time the local government gives final approval to the additional housing density.

(2) After the local government has used the State financial support for the purpose described in paragraph (b)(1), the infrastructure of each community affected by the increase in housing density has been brought up to the standard necessary to satisfy all federal, state, and local infrastructure requirements applicable to each such community at the time the local government gives final approval to the additional housing density.

(c) The State shall have no authority to enact or enforce any law that prescribes the minimum square footage of any dwelling unit.

(d) With respect to any workforce-housing project that receives a local government’s ministerial or discretionary approval, all of the following shall apply:

(1) The State shall pay any and all post-approval fees that any local government would otherwise collect from the project’s applicant after the project’s approval.

(2) Each local government to which post-approval fees must be paid shall promptly request payment from the State following the project’s approval, not from the applicant, and the State shall promptly pay the local government.

(3) All monies received from the State by a local government shall be used exclusively for the project as if paid by the applicant.

(e) For purposes of this section:

(1) “Infrastructure” means public improvements and services such as parks, libraries, first responders, water, sewer, and storm water facilities, transit and mobility, sidewalks, and street lighting provided by the local government.

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(2) “Community” means a community within a local government’s jurisdiction as identified in any planning or zoning law adopted by the local government.

(3) “Planning or zoning law adopted by the local government” includes general plans and elements thereof, community plans, specific plans, and other planning and zoning laws, ordinances, codes, regulations, or policies.

(4) “Local government” means any county, city, or city and county, including a charter city or county, any special district, any school district, or any other local or regional governmental entity.

(5) “Workforce-housing project” means a project that includes dwelling units that, within the jurisdiction of the local government approving the project, are (i) affordable to and occupied by lower income households as defined by Health and Safety Code Sections 50079.5, 50105, and 50106 and (ii) subject to a recorded affordability restriction for the maximum time permitted by law.

(6) “Post-approval fees” means any and all fees or exactions established in accordance with all applicable laws and that must be paid to a local government after ministerial or discretionary approval of a residential project up through issuance of a certificate of occupancy. “Post-approval fees” includes but is not limited to construction-inspection fees, school impact fees, and development-impact fees, as well as fees, charges, dedications, and other requirements levied pursuant to Education Code 17620. For a residential project that includes one or more non-residential uses, “post-approval fees” does not include any fees attributable to the nonresidential portion of the project. 

(f) Sub-section (a) shall apply retroactively to January 1, 2019; no other portion of this section shall be applied retroactively or to any project that received a local government’s tentative or final approval prior to the effective date of this section.

(g) Except as expressly provided in sub-sections (a) and (c), nothing in this section limits the State’s authority to enact or enforce any law.

(h) This section shall be liberally construed to achieve the purposes of requiring State housing policies to improve housing affordability without shifting cost burdens to local taxpayers and neighborhoods and without undermining local land-use and zoning control; ensuring that any community required to absorb additional housing density as a result of State legislation has up-to-date infrastructure to accommodate the density without degrading the community’s quality of life; providing local governments with flexibility to determine the size of dwelling units in order to meet local housing demand; encouraging the development of workforce housing at a lower cost to the occupants; and avoiding unfunded State mandates on local government.

Section 2. [No change to current section.] The provisions of this Article shall be self-executing but legislation not in conflict herewith may be enacted to facilitate its operation.

Section 3. [No change to current section.] If any portion, section or clause of this article, or the application thereof to any person or circumstance, shall for any reason be declared unconstitutional or held invalid, the remainder of this Article, or the application of such portion, section or clause to other persons or circumstances, shall not be affected thereby.

Section 4. [No change to current section.] The provisions of this Article shall supersede all provisions of this Constitution and laws enacted thereunder in conflict therewith.
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The proponents of this initiative to amend the California Constitution are:
______________________
Bob Foster
______________________
Donna Frye
______________________
James LaMattery
______________________
David Takashima
______________________
Sara Wan

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© 2019 The Planning Report | David Abel, Publisher, ABL, Inc.