Is the Proposed Land Use Element Plan a Decoy

Are the necessary measures to unleash the destructive intent of SB 35, and that of accompanying bills, already in place in the Housing Element Plan?

Senate Bill 35 states in Section 3 (a) (5) (B): In the event that objective zoning, general plan, or design review standards are mutually inconsistent, a development shall be deemed consistent with the objective zoning standards pursuant to this subdivision if the development is consistent with the standards set forth in the general plan.

That makes the General Plan determinant.

The Housing Element, and the Land Use Element, are both parts of the General Plan.

As a Charter City, Long Beach does not need to have the General Plan and zoning regulations agree.

The already in place Long Beach Housing Element states: “In keeping with the principles and policies established in the City’s 2010 Strategic Plan and Land Use Element of the General Plan, new high-density residential and mixed use development is to be focused in key locations, allowing for the preservation of existing and stable neighborhoods. Appropriate and feasible housing densities are allowed, with appropriate development standards and design guidelines, along transit corridors, in the downtown and greater downtown areas, and in close proximity to major employment and activity centers.” Page 123

To see the transit corridors designated through the entirety of Long Beach, look at the PlaceType and Height Maps in the Land Use Element Plan.

There were many inaccurate statements made regarding SB 35 at the last Whaley Park outreach meeting on October 4, 2017.

Stated at the meeting: “It applies only to affordable housing projects.” The bill does not say that. The bill says “a site that is zoned for …  or has a general plan designation that allows residential use or a mix of residential and nonresidential uses…” The bill also states: (1) The development is a multifamily housing development that contains two or more residential units.”

“Affordable housing” is defined in the bill as housing affordable to families making under 80% of the area’s median income. Most apartment buildings are directed at that market.

At that outreach meeting, it was stated that these developments “cannot be located in any area where there is currently housing” and that these “[following] requirements are going to significantly limit the types of property subject to this legislation.” Not true.  Only locations which are currently “affordable housing”  and/or rental unit sites are restricted from the streamlined permit process.

From the meeting, the contention that the developments would be limited due to the cost of requiring union wages, otherwise known as prevailing wages, is not accurate. First, one of the reasons the bill does not require any parking is because that significantly lowers the cost of construction potentially offsetting the increased cost of union wages, if applicable. Second, there are multiple government sources of funding for these projects which include federal tax subsidies, state grants, and local incentives which make these developments highly profitable.  Third, SB 35 clearly states a “public work” is not required to be built by union workers and “affordable housing” is a public work and as noted above, many apartment buildings are built to that market. In addition, if the development includes a percentage of public works, construction of the “affordable housing” units aka “public works” does not need to be done by union workers.

SB 35 states:  Section 3 (a) (8) (A) Certified to the locality that either of the following is true, as applicable:(i) The entirety of the development is a public work for purposes of Chapter 1 (commencing with Section 1720) of Part 7 of Division 2 of the Labor Code. (ii) If the development is not in its entirety a public work, that all construction workers employed in the execution of the development will be paid at least the general prevailing rate [meaning union workers]… If the development is subject to this subparagraph, then for those portions of the development that are not a public work all of the following shall apply: …

With SB 35, either one of two conditions apply: 1) it’s a public works, or 2) prevailing wages are paid for the portion of construction which is NOT public works. That’s a big change from existing law.

Another inaccuracy from the previous outreach meeting to address is the misconception that cities will be able to contest construction of these developments. From SB 35 Section 3 (b) (1) If a local government determines that a development submitted pursuant to this section is in conflict with any of the objective planning standards specified in subdivision (a), it shall provide the development proponent written documentation of which standard or standards the development conflicts with, and an explanation for the reason or reasons the development conflicts with that standard or standards, as follows: …

A city may only object to a development because of the objective criteria in the bill and not subjective criteria such as traffic or parking conditions. There are rigid guidelines over what can be contested, in what time frame, how to contest, and there are penalties if the city contests something which is not an objective standard listed in the bill.

Once a permit is issued it becomes an “entitlement” so it can’t be revoked.

“Under the doctrine of vested rights, if a property owner has received a permit from a public agency to do something, such as a building permit or use permit, and then incurs substantial costs in reliance of that permit, then the property owner has the right to rely on that permit regardless of changes in the public agency’s land use regulations.”

SB 35 also increases the time frame before construction needs to be started once a permit is issued.

And the Density Bonus Law can make a development zoned for five stories become a seven story building. There’s a sliding scale for percentage increase depending on how much of the building contains “affordable housing” and the bonus is always rounded up to the next higher number.

Please share your thoughts and comments.

Janet West

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