A recent court decision and new state legislation that will streamline local approval and mitigate litigation that blocks new residential development may finally help boost available housing for Californians.
A loophole in a 2017 housing law, which led to lawsuits delaying projects past the mandated start time, has been addressed by passage of AB 1174, an urgency bill from Assemblymember Tim Grayson, D-Concord, and co-sponsored by the Bay Area Council.
AB 1174 was drafted following legal action that stalled transforming a former Cupertino shopping mall into a 2,400-unit residential and commercial development, Matt Regan, senior vice president of public policy with the Bay Area Council, told the Northern California Record.
“We were able to clean that up in 1174 by changing some designations around when the construction begins,” Regan said, “It’s no longer vertical construction; you can begin demolition and site clearance and that qualifies you for beginning construction.”
But the key AB 1174 provision removed the process of having to reset the clock if construction didn’t start within three years of approval; SB 35 hadn’t planned for lawsuit delays that blocked projects from meeting that required timeframe.
“That's probably the biggest, the most important loophole that we were able to close in 1174,” Regan said.
Gov. Gavin Newsom was able to sign the measure five days before the Cupertino’s project timeline was set to expire on Sept. 21.
Meanwhile, in California Renters Legal Advocacy and Education Fund v. City of San Mateo, a state appellate panel reversed a city’s rejection of a four-story apartment building, finding it complied with the Housing Accountability Act (HAA).
“The design guideline the City invoked as part of its reason for rejecting this housing development is not ‘objective’ for purposes of the HAA, and so cannot support the City’s decision to reject the project,” Justice Alison M. Tucher wrote in the unanimous ruling. “And because the HAA checks municipal authority only as necessary to further the statewide interest in new housing development, the HAA does not infringe on the City’s right to home rule.”
The case was returned to San Mateo County Superior Court, to direct the city to vacate its denial of the housing application.
Daniel Golub of Holland & Knight, who represented the appellants, called the decision a home run for housing. "The opinion makes it clear that cities cannot just adopt plans for housing - they must also approve the housing for which they have planned,” Golub said. “California ranks 49th out of 50 states in homes per capita, and legal victories like this one are necessary to begin to stem the state’s historic housing supply and affordability crisis.”
Regan noted that housing delayed often means housing denied.
“Not issuing a permit runs counter to state policy and state law, and the court made it very clear that that’s their position,” Regan said.