California Capitol Watch: Bill Would Require Ministerial Approval of Duplexes and Lot-Splitting in Single-Family Zones

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By Eric Gelber

Among the Davis Housing Element Committee’s recommended changes to the City Housing Element is to “Explore removing R-1, aka single-family home only zoning.” A bill now making its way through the State Legislature—SB 9 (Atkins)—would not eliminate R-1 zones; however, it would broaden the type of housing permitted by right in single-family zones.

What problem/issue would the bill address?

Local governments have broad authority to define the specific approval processes needed to meet zoning requirements. Typically, most large housing projects require “discretionary” approvals from local governments, such as a conditional use permit or a change in zoning laws. This process requires hearings by the local planning commission, public notice, and may require additional approvals. City or county planning staff can permit some housing projects “ministerially” or “by right”: without discretionary approval from elected officials.

According to the author, SB 9 “promotes small-scale neighborhood residential development by streamlining the process for a homeowner to create a duplex or subdivide an existing lot. SB 9 strikes an appropriate balance between respecting local control and creating an environment and opportunity for neighborhood scale development that benefits the broader community. To that end, the bill includes numerous safeguards to ensure that it responsibly creates duplexes and strategically increases housing opportunities for homeowners, renters, and families alike.

“At a time when many Californians are experiencing economic insecurity caused by the pandemic, this bill will provide more options for families to maintain and build intergenerational wealth—a currency we know is crucial to combatting inequity and creating social mobility. SB 9 provides flexibility for multigenerational housing by allowing homeowners to build a modest unit on their property so that their aging parent or adult child can have an affordable place to live.”

What would the bill do?

SB 9 would allow duplexes to be built in many single-family zones, even if local officials and residents have said they do not want them, and it would allow for the creation of smaller parcels than local governments might allow on their own. The bill provides, however, that local zoning standards that do not conflict with the bill still apply, so the duplexes allowed under the bill will retain much of the look and feel of the neighborhood. This may include considerations of such matters as setting maximum heights and densities for housing units, minimum numbers of required parking spaces, setbacks to preserve privacy, lot coverage ratios to increase open space, and others. These ordinances can also include conditions on development to address aesthetics, community impacts, or other site-specific considerations.

SB 9 would require cities and counties to permit ministerially either or both of the following, as long as they meet specified conditions:

  • A housing development of no more than two units (a duplex).
  • The subdivision of a parcel into two approximately equal parcels (urban lot split).

The combined application of these requirements could result in four homes on a parcel where previously only one single-family home was permitted.

To be eligible, a development or parcel to be subdivided must be located within an urbanized area or urban cluster, as defined by the United States Census and cannot be located on any of the following:

  • Prime farmland or farmland of statewide importance; Wetlands; Land within the very high fire hazard severity zone, unless the development complies with state mitigation requirements;
  • A hazardous waste site;
  • An earthquake fault zone;
  • Land within the 100-year floodplain or a floodway;
  • Land identified for conservation under a natural community conservation plan, or lands under conservation easement;
  • Habitat for protected species; or
  • A historic district or property included on the State Historic Resources Inventory, or a site that is designated or listed as a city or county landmark or historic property or district pursuant to a city or county ordinance.

SB 9 would require a housing development containing no more than two units to be permitted ministerially in single-family zones if the development meets certain conditions, including the requirements on eligible parcels above. A development can include adding one unit to an existing unit or constructing two new units.

SB 9 would allow, until January 1, 2027, a local agency to impose conditions that an applicant be either: An owner-occupant for one year from the date of approval of the urban lot split; or a qualified nonprofit corporation that receives a welfare exemption from the property tax pursuant to specified sections of law.

SB 9 would prohibit projects or lot splits that would require demolition or alteration of an existing housing unit of any of the following types of housing: Rent-restricted housing, including deed-restricted affordable housing and housing subject to rent or price control by a public entity’s police power; housing that has been the subject of an Ellis Act eviction within the past 15 years; or housing that has been occupied by a tenant in the last three years. SB 9 would also prohibit the development of accessory dwelling units (ADUs) or junior ADUs on parcels that use both the urban lot split and duplex provisions of the bill.

SB 9 would also apply the limitations on parking requirements from ADU law to both duplexes and urban lot splits under the bill.

Comments

It is worth pointing out that single-family zoning has a racist history. (See, e.g., KQED report.) When cities first created neighborhoods where only single-family houses were allowed, it was about more than separating homes from apartments; it was about separating white families from everyone else. Renting an apartment or duplex is less expensive than renting or buying a home. Single-family only zoning is part of a legacy of racist housing policies like redlining that barred Black families from receiving federally backed loans following the Great Depression and from the GI Bill after WWII. As pointed out in the KQED report, as you increase the percentage of single-family zoning in a city, you increase the percentage of white residents.

A recent article on the website Medium.com argues that there is compelling evidence that single-family zoning has damaged the environment by encouraging suburban sprawl and car reliance, worsened affordability by restricting housing supply, and undermined inclusion by keeping lower-income households out of high-opportunity neighborhoods. The article summarizes the arguments against single-family zones as made in recent articles published in the Journal of the American Planning Association, which include the following:

  • People can still build single-family homesOne of the most common arguments for keeping single-family zoning is that most people prefer single-family homes. Even if that weretrue, it wouldn’t be a good argument for single-family zoning, because removing the rule doesn’t prevent such housing from being built. If people still wanted these homes, developers would continue to build them. They’d just be allowed to build other types as well—in response to household preference.
  • Communities can still prevent Manhattanization.A community can still impose height restrictions without precluding the creation of alternative housing types, such as ADUs or multiplexes.
  • Upzoning won’t necessarily spoil housing investments.While single-family zoning successfully protects housing investments, that’s not the role of planning, which should instead focus on creating more sustainable and equitable cities. And planning experts note that upzoning an area can increase property values as well, by raising land prices for developers.

A commenter to a recent Vanguard article on the Housing Element recommendation to eliminate R-1 zones argued that “the concept of eliminating single-family housing zoning to allow 2-4 (or more) units built on a single-family lot next to a single-family residential unit, bought because it was in a in a single-family zoned neighborhood had the reasonable expectation for it to remain a single-family neighborhood.” Such expectations are not necessarily reasonable, however. Zoning ordinances are not entitlements, guarantees, or covenants. Zoning ordinances are routinely subject to conditional use permits, variances or modifications to meet particular identified needs or as circumstances or priorities change over time.

According to the League of California Cities, “SB 9 as currently drafted will not spur much needed housing construction in a manner that supports local flexibility, decision making, and community input. State-driven ministerial or by-right housing approval processes fail to recognize the extensive public engagement associated with developing and adopting zoning ordinances and housing elements that are certified by the [Department Housing and Community Development].”

SB 9 is virtually identical to a bill from the last session—SB 1120—that made it through both houses of the Legislature but missed the end of session deadline for approval of the bill in its final amended form.

SB 9 was passed by the Senate Housing Committee, Senate Government and Finance Committee, and Senate Appropriations Committee. It is now awaiting a vote on the Senate Floor and, if passed, will move on to the Assembly.

Eric Gelber, now retired, is a 1980 graduate of UC Davis School of Law (King Hall). He has nearly four decades of experience monitoring, analyzing, and crafting legislation through positions as a disability rights attorney, Chief Consultant with the Assembly Human Services Committee, and Legislative Director of the California Department of Developmental Services.


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14 thoughts on “California Capitol Watch: Bill Would Require Ministerial Approval of Duplexes and Lot-Splitting in Single-Family Zones”

  1. Don Shor

    So the state would be forcing densification on cities even if they don’t want it, and would be removing any method by which local officials, neighbors, neighborhood associations, or other local interest groups could object.

    1. Edgar Wai

      You are arguing that the state shall not let a neighborhood restrict what an individual (the parcel owner) to build, but the neighborhood shall be allowed to do just that.

      In the context of providing more housing, not letting a homeowner split their own lot violates “let people help each other” principle.

      If someone voluntarily wants to help others, a community should let them do so.

      1. Edgar Wai

        It didn’t let me edit, it should be something like this:

        You are arguing that a state shall not be allowed to restrict a neighborhood (from restricting an individual), but a neighborhood shall be allowed to restrict an individual.

      2. Don Shor

        You are arguing that the state shall not let a neighborhood restrict what an individual (the parcel owner) to build, but the neighborhood shall be allowed to do just that.

        I am not arguing anything. What you are describing is the status quo: a community controls the shape and density of its own growth. My reading of this bill is that it would disallow the community from controlling the nature of its growth with specific respect to infill within single-family neighborhoods. In effect, a city would be required to approve project proposals that split lots or add more units on existing lots. They would still retain some control over the appearance, height, etc., of those proposals.

        If someone voluntarily wants to help others, a community should let them do so.

        I doubt that would be the most common motive for such proposals.

        1. Bill Marshall

          Edgar…

          An individual, splitting their parcel, for sale… not an altruistic effort… think $$$$$!

          There may be some ‘benefit’, eventually, to the buyer… the far most common motivation for splitting a lot, is a lot of $$$$$… reality…

           

        2. Edgar Wai

          I didn’t argue that it has to be altruistic.

          If someone is willing to buy the split lot, then someone is being helped and the seller is being compensated.

          Then why stop them?

  2. Ron Oertel

    And planning experts note that upzoning an area can increase property values as well, by raising land prices for developers.

    Yet another irony, regarding the “build-it-to-affordability” claims.  Well, that plus the cost of razing existing dwellings.

    In a state that’s continuing to sprawl outward, regardless.

    this bill will provide more options for families to maintain and build intergenerational wealth—a currency we know is crucial to combatting inequity and creating social mobility.

    It would certainly create “intergenerational wealth” for those cashing-in on the increased value of their “undersized” single-family dwelling, and then moving to some continuing-to-sprawl location in the foothills, for example.

    Not so much for the family who subsequently purchases or rents “half” or a “quarter” of that same property, at significantly higher prices per square foot.

    Probably resulting in those dreaded “white” people making out like bandits, while those “left-behind” are holding the increasingly-congested and less-valuable “bag”.

    This is how you simultaneously advocate for more congestion, more sprawl, higher prices (and yet somehow) in a state that’s no longer actually growing.

    1. Don Shor

      in a state that’s no longer actually growing.

      Our region is growing, and there is no reason to believe that California’s brief population dip in other parts of the state will continue after the pandemic.

      1. Ron Oertel

        The reason that the region is growing is because it’s willing to accommodate those moving from more dense/expensive areas.  Which is the opposite of what agencies such as SACOG (and the new laws) are intended to accomplish.

        Pushing for infill (without containing sprawl elsewhere) is not going to accomplish that goal. Seems like common sense was ignored from the start, but even more so as a result of telecommuting.

        Also, regardless of what one thinks of it, illegal immigration is reportedly one of the primary drivers of expected (moderate levels) of growth in California.

        But the days of rapid growth appear to be permanently over, due to declining birth rates, outward migration to other states (by both workers and employers), much cheaper housing, lower taxes, etc.  (It’s odd how some think this is a bad thing.) Truth be told, some of the political direction that California has moved toward is also a factor in that (regardless of what one thinks of it, personally).

         

  3. Richard_McCann

    The reason that the region is growing is because it’s willing to accommodate those moving from more dense/expensive areas.  Which is the opposite of what agencies such as SACOG (and the new laws) are intended to accomplish.

    So you’re advocating for the state to take over land use planning and require denser communities to accommodate growing housing demand?

    Contrary to your “factual” claim, the undocumented immigrant population has fallen since 2007: pewresearch.org/fact-tank/2020/08/20/key-findings-about-u-s-immigrants/

    The number of companies in California has continued to grow. The claims of outmigration by employers is purely anecdotal. I’ve been hearing this outright lie since the early 1980s.  Here’s the statistics on firm births/deaths in California. There continues to be net growth in business formation. https://www.bls.gov/web/cewbd/ca_anntab4.txt

    It’s fascinating that you accept one half of the economic equation, that falling demand should lead to falling housing prices, but reject the other half of the economic equation that rising supply also should lead to falling housing prices. They in fact have equal force on housing prices.

    The bottom line is that people don’t just spontaneously move to somewhere that has low housing prices–they move where there are good paying jobs. And Davis is in the middle of one of those job centers, so we will continue to have rising demand despite what happens at the statewide level.

    1. Ron Oertel

      SACRAMENTO — California’s population declined in 2020 for the first time in the state’s recorded history due to Covid-19 deaths, federal immigration restrictions and declining births, state officials announced Friday.

      “Much has been made of the California exodus, and rightly so.”  This migration, over the decades, as the power to reshape the state,” states a separate report by the Public Policy Institute of California released Thursday.

      https://www.politico.com/states/california/story/2021/05/07/california-population-drops-for-first-time-in-state-history-1380893

      So you’re advocating for the state to take over land use planning and require denser communities to accommodate growing housing demand?

      I’m saying that there are no effective restrictions in place to prevent sprawl, in most locations throughout the state.  And as such, “densification” efforts will not prevent it (and may even encourage it).

      The bottom line is that people don’t just spontaneously move to somewhere that has low housing prices–they move where there are good paying jobs. And Davis is in the middle of one of those job centers, so we will continue to have rising demand despite what happens at the statewide level.

      Davis is not a job center.  UCD and Sacramento are.  The entire region (including Davis) has “cheap” housing compared to the Bay Area.  Jobs are more plentiful and offer much higher salaries in the Bay Area, compared to the Sacramento Region.  The cheap, sprawling housing in the Sacramento region is the primary reason that they’re moving to the area.

      But one of the things I found particularly “selfish” was the support for DISC by some, when some are already claiming a housing shortage.  (Gee, I wonder what “Sustainable Growth Yolo’s” position was on DISC?)

      It’s fascinating that you accept one half of the economic equation, that falling demand should lead to falling housing prices, but reject the other half of the economic equation that rising supply also should lead to falling housing prices. They in fact have equal force on housing prices.

      ————————————————————————————————–

      U.S. housing starts fall to six-month low; building permits tumble
      https://financialpost.com/pmn/business-pmn/u-s-housing-starts-fall-to-six-month-low-building-permits-tumble

      (Of course, after they clear-cut all of Canada and Alaska, and vastly increase mining, perhaps some material prices will come down.)

      But in the meantime, builders are realizing that the market will not continue supporting rising prices, and are cutting back production on their own. Maybe they learned something from the last housing crash.

      1. Don Shor

        declined in 2020 for the first time in the state’s recorded history due to Covid-19 deaths, federal immigration restrictions and declining births,

        Only one of those things is going to continue. You keep focusing on short-term changes in the growth of the region. It is not expected that the population here will continue to decline. The agencies that plan for housing needs expect the Sacramento region to experience population growth. That is what planners need to work with.

        1. Ron Oertel

          The agencies that plan for housing needs expect the Sacramento region to experience population growth. 

          As far as planning (and encouraging the “drivers” of growth and development), that’s a “choice” – not an “inevitability”. You already know that there are areas (even in California) that are not growing.

          Perhaps it’s time to look at the entire Ponzi scheme, in more ways than one.

          And again, growth/development in the region is in direct contradiction to the so-called “densification-instead-of-sprawl” claims, given that most of the newcomers are moving from more dense and expensive areas.  So the question is, why do organizations such as SACOG encourage that?  (Let alone the YIMBY groups.)

          And correspondingly, shouldn’t your same argument be used to support eliminating RHNA requirements in regions (and/or cities) that aren’t growing?  (For example, parts of the Bay Area?)

          But I’m still curious as to Don Gibson’s position (or that of his “Sustainable Growth Yolo” group’s position) regarding DISC, as that would have exacerbated the so-called local “housing shortage”.  

          The answer to that would tell you whether or not he (and that group) is actually concerned about “housing shortages” (or resulting sprawl, for that matter).

           

           

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