SB 35 & Its Effects on Marin
Updated: Sep 4, 2019
Kelley Kromhout | NextGen Marin
In 2017, Governor Jerry Brown signed SB 35 into law, which authorizes developers whose projects meet certain requirements to bypass the typical processes of local city council, planning commission, and design review hearings, and instead allows them to undergo a “streamlined, ministerial approval process” that is “not subject to a conditional use permit.” Depending upon how well cities and counties have fulfilled their respective Regional Housing Need Allocation (RHNA) in terms of building enough “lower income” or “above-moderate income” units, proposed projects in applicable local jurisdictions will be mandated to build with fifty or ten percent affordability, respectively.
So what does this mean for Marin County? According to California’s Department of Housing and Community Development (HCD), almost all of Marin County is subject to the streamlined ministerial approval process for proposed developments. (Corte Madera and Mill Valley are currently exempt but “are still encouraged to promote streamlining.”) San Rafael, Novato, Sausalito, Ross, and Fairfax are subject to the process for projects that have 10% “affordable” units, while unincorporated Marin County, San Anselmo, Tiburon, and Larkspur are subject for projects with 50% affordability. Proposed projects in these jurisdictions that submit an application that satisfies specific planning objective standards, includes building at least ten or fifty percent affordable units (depending on the locality), and pay prevailing wages may qualify for the streamlined process.
This law is a big change for developers who are used to going through the typical project approval process (which can take months or even years). While the usual approval process for developments is supposed to challenge the applicant to build a project that satisfies local and state laws, developers also have to please local commissioners or council members who review the project as well as community members, some of whom may be opposed to any new development at all. As a result, developers often spend large amounts of money and time before construction begins in order to conduct necessary studies and redesign projects to meet expectations. The lack of progress in addressing the housing shortage, partially due to projects that are stuck in the approval process, has led to the battle between the State and local jurisdictions for control of approval of housing projects.
SB 35’s timing reflects how much citizens, media outlets, and legislators have acknowledged in recent years that there is a housing crisis and have called for change. Authors of the bill declared that “the excessive cost of the state’s housing supply is partially caused by activities and policies of many local governments that limit the approval of housing, increase the cost of land for housing, and require that high fees and exactions be paid by producers of housing.” Since the State has begun its mission to build more housing under Governor Newsom, numerous housing bills, like SB 35, have sought to take away local control in the hope of building housing more quickly.
Although SB 35 creates a streamlined process for applicable projects, cities (and Marin County itself) that are subject to SB 35 will have the opportunity of putting into place “specified planning objective standards” that projects will be expected to meet in order to bypass the normal approval process. This seems like the only way that cities can specify what they do (or do not) want being built in their jurisdiction. “Planning objective standards” mean “standards that involve no personal or subjective judgment by a public official and are uniformly verifiable by reference to an external and uniform benchmark or criterion available and knowable by both the development applicant or proponent and the public official prior to submittal.”
The City of San Rafael met on Tuesday, July 16th to attempt to finalize these standards but agreed to create a subcommittee composed of Planning Commissioners and Design Review Board members instead. Attempting to create a one-size-fits-all set of standards for any and all projects that apply for the streamlined process is not a simple task; this includes setting standards for site planning & layout, building design & architecture, open space & landscape, sustainability, building materials & colors, lighting, walls & fencing, and signage. By creating a set of “planning objective standards” of what city officials do or do not expect to see in new residential developments, they can protect the city from poor design.
A large obstacle for developers that is built into SB 35 is the requirement that the applicant pay prevailing wage for any project that is not completely a “public work.” Construction costs are another main reason why the housing supply is so low; the high cost of labor and materials, especially since the recent wildfires in California, has meant that developers need to be smarter about pricing their units in order to make their return on investment. SB 35 dictates that a certain percentage of the total units in a housing project need to be “affordable” for specified income levels relative to that jurisdiction. So even though SB 35 seems like it might be a slam dunk for developers, unless they build a large development and have a very sizable amount of capital to draw upon, the requirement of paying workers the prevailing wage will most likely keep developers at bay (or out of Marin at least).
High construction costs, lengthy approval processes, stifling building restrictions, and community opposition have greatly affected progress in California’s mission to build more housing. SB 35 was signed into law after it was realized that not enough was being done to address the housing shortage. This bill is a reminder for citizens and elected officials everywhere that the approval process, left to localities, has not done enough. More bills in the State Capitol are focused on removing local control, like AB 1487, which would establish a regional housing agency to govern housing in the Bay Area, or SB 330, which would prohibit local agencies from disapproving projects that comply with their zoning and general plan. SB 35 is an indicator of what’s to come from our Capitol: less local control, potentially streamlined approval processes, and hopefully some housing.