Housing Streamlining

Why the Berkeley City Council should vote no on Item 16 "Urging the California State Legislature to Amend or Oppose the 'By Right Housing Approvals' Budget Trailer Bill"

Livable Berkeley urges members of the Berkeley City Council to vote NO on Consent Item 16 on the July 12th, 2016 agenda. The following are selected excerpts from the proposed resolution and background materials, with responses indicating how the text of the item is incorrect and/or would undermine the intended purpose of the State legislation.

Excerpts from the resolution are shown in Italics; responses are shown in bold typeface:

 However, it is still not clear whether the new by-right law would pre-empt cities from applying higher affordability requirements than those imposed by the state. In addition, the Trailer Bill does not require by-right projects to meet any construction labor standards and would prohibit the ability of local governments to impose their own labor, environmental or social equity benefits for by-right projects.

This is out of date and incorrect. The City Council agenda materials for this item contain a discussion of the most recent version of the bill. This discussion indicates that the most recent version of the bill would require projects to meet the full range of “objective zoning standards” and “objective design standards” at the local level to qualify for streamlined approval.  Local affordable housing requirements, green building standards, and parking minimums/maximums are all examples of objective standards that would NOT be pre-empted by the legislation.

Governor Jerry Brown introduced a Budget Trailer Bill proposal for “By-Right Housing Approvals” which pre-empts local land use policies and housing development requirements to allow multi-unit development approvals as-of-right if a proposed development includes 10% for low income households or 5% for very low income households;

This is out of date and misleading. As currently proposed, the bill would not “pre-empt” local land use policies with respect to affordable housing requirements. The description of the revised bill explicitly states: “The new definition clarifies that an inclusionary housing ordinance is an ‘objective zoning standard.’”

The affordable housing requirements in the Trailer Bill are significantly below Berkeley’s existing inclusionary option to the Affordable Housing Mitigation Fee which is 10% of total market rate units in the project to be set aside at 50% AMI. This inclusionary option will soon be increased to 20% total market rate units set aside for low and very- low income households.

This is very misleading. As discussed above, the most recent version of the proposed bill would NOT force Berkeley to allow projects with less affordable housing than currently required. It would merely guarantee that because Berkeley’s affordable housing requirements are higher than those included in the bill, projects in Berkeley that meet the other objective standards would benefit from streamlined approvals.

Displacement of residents from Berkeley through real estate speculation is a continuing crisis;

The most recent version of the requires 1-to-1 replacement of any affordable units that are displaced by a proposed development that seeks streamlined approval:

“Unless development replaces units at a level of affordability equal to or greater than the level of a previous affordability restriction, the development may not be on any property that is (A) a parcel on which rental dwelling units are, or have been within past 5 years, subject to a recorded covenant that restricts rents to levels affordable to persons and families of lower or very low income; (B) subject to any other form of rent or price control; or (C) occupied by lower or very low income households.”

NOW THEREFORE, BE IT RESOLVED that the Council of the City of Berkeley hereby urges the California State Legislature to offer the following amendments to the By-Right Housing Approvals Trailer Bill:

A. Clarify that the Trailer Bill does not take away the right of cities to adopt higher inclusionary standards, and those requirements would still be applicable to by-right projects.

The most recent version of the bill already includes clarifications that local inclusionary requirements are “objective standards” that must be met for projects to qualify for streamlined approvals.

B. An amendment which states that the By-Right Approvals pre-emption shall not apply to jurisdictions whose “performance” of housing production for very low, low and moderate-income residents constitutes at least 25% of its total housing production, as documented in the most recent Regional Housing Needs Assessment (RHNA) cycle and as documented in a current annual Housing Element Progress Report;

This recommendation would undermine the proposal and let too many cities off the hook. It would create a loophole for cities that build little to no housing or that build housing much more slowly than they add jobs. Cities could exploit this loophole by building an amount of affordable housing that may be proportionally large, but small in absolute terms. For example, a small, exclusive community could approve only four units of housing, of which one was affordable, and thereby claim to be exempt from the State legislation.

C. The value of any as-of-right development pre-emption over local land use discretion should be recaptured by an increased “premium” above that local Inclusionary Housing standard, as determined by a technical analysis.

This requirement would defeat the purpose of the legislation, which is to make it faster and easier to provide the housing that we so desperately need. Subjecting each project to a new “technical analysis” is the exact opposite of what the State should be doing to increase the provision of housing.

D. Require projects to pay state prevailing wages, local hire and job training requirements.

The most recent version of the bill specifies that an “objective zoning standards” are those that:

“Involve no personal or subjective judgment by the public official; the standards must be uniformly verifiable by reference to an external or uniform benchmark or criterion available and knowable by both the development applicant or proponent and public official prior to submittal.”

Under this definition, wage and labor requirement could be considered objective standards.

E. In addition require approved development projects begin construction within 180 days;

This requirement is self-defeating. If due to unforeseen circumstances a housing project were unable to commence construction within 180 days, retroactively rescinding project approval would only cause further delay.