• Land Use Attorney Capitola

Case Update: Appellate Court Holds That Affordable Housing “In-Lieu” Fees Are Not Exactions And Thus Not Subject To The Reasonable Relationship Test (Following California Building Industry Assn. v. City of San Jose (2015) 61 Cal.4th 435).

In 616 Croft Ave., LLC v. City of West Hollywood, (2016) 3 Cal.App.5th 621, the court of appeal held that the City’s in-lieu affordable housing fee was not subject to the reasonable relationship test under the Nollan/Dolan line of cases.  The subject project, an 11-unit condominium development on two combined lots, was approved in 2005, but because of the economic downturn the developer did not request building permits until 2011.  During that time, the City’s in-lieu housing fee under its 2011 fee schedule had increased to $540,000.00.  The developer paid under protest, and then sued the City for a refund in 2012, arguing that the fee was an illegal “exaction”.

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Case Update: Appellate Court Holds That Coastal Act Protections Supersede State Affordable Housing and Density Bonus Rules.

In Kalnel Gardens, LLC v. City of Los Angeles, (2016) 3 Cal.App.5th 927, the court of appeal held that affordable housing requirements set forth in the Density Bonus Act (Gov. Code § 65915 et seq.) and the Mello Act (Gov. Code § 65590 et seq.) were superseded by development restrictions set forth in the California Coastal Act (Pub. Resources Code § 30001 et seq.).  The subject project included five new duplexes and five new single family homes in an old neighborhood in Venice comprised mostly of single-story 1920s-era bungalows.  The project also included density bonus concessions under the City’s density bonus ordinance, including higher rooflines and shorter setbacks.  Plaintiffs argued that the project violated the Coastal Act because its height, density, setbacks and other visual and physical characteristics were out of character of the existing neighborhood.

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ADUs: California Legislature Passes Easier, Statewide Permitting Requirements and Restrictions For Granny Units.

The California Legislature recently passed new rules making it easier, faster, and presumably less expensive, for people to get permits for new “granny units” otherwise referred to as “accessory dwelling units” (“ADUs”).  Senate Bill 1069, which was signed by Governor Brown on September 27, 2016 and takes effect on January 1, 2017, amends Government Code section 65852.2 to require local agencies statewide to amend their zoning ordinances to implement several uniform development requirements and restrictions on ADUs – both substantive and procedural.

The new substantive rules include the following:

  • ADUs shall not be required to provide fire sprinklers if they are not required for the primary residence;
  • Off-street parking requirements (not more than 1 per ADU or bedroom), may be provided as tandem parking on a driveway;
  • No off-street parking requirements may be imposed on ADUs that meet any of the following criteria:
    • The ADU is located within one-half mile of public transit.
    • The ADU is located within an architecturally and historically significant historic district.
    • The ADU is part of the existing primary residence or an existing accessory structure.
    • When the local jurisdiction requires on-street parking permits but does not offer them to the occupant of an ADU.
    • When there is a car share vehicle located within one block of the ADU.
  • In addition, a local agency may reduce or eliminate parking requirements for any ADU located within its jurisdiction;
  • ADUs shall not be considered new residential uses for the purposes of calculating local agency connection fees or capacity charges for utilities, including water and sewer service;
  • For certain types of ADUs, a local agency shall not require the applicant to install a new or separate utility connection directly between the ADU and the utility or impose a related connection fee or capacity charge;
  • The floor area of an attached ADU shall not exceed 50 percent of the existing living area of the existing structure (increased from 30 percent). (Note: Unchanged are the existing restrictions that for attached ADUs the maximum increase in floor area is 1,200 square feet, and that the maximum total floorspace for a detached ADU is 1,200 square feet);
  • A local agency may require an applicant to be an owner-occupant and may require that the property not be used for rentals for terms shorter than 30 days.

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CASE UPDATE: A City’s General Plan Amendment Eliminating Minimum Residential Density Requirements Is Not Exempt From CEQA.

In People for Proper Planning v. City of Palm Springs (2016), 2016 WL 3005719, an affordable housing advocacy group filed a lawsuit challenging City of Palm Springs’s  adoption of a general plan amendment (GPA) removing minimum density requirements for each residential development.  The trial court ruled that the GPA was exempt from environmental review under the California Environmental Quality Act (CEQA), but the court of appeal reversed on this issue.

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CASE UPDATE: California Supreme Court Upholds City Of San Jose’s Affordable Housing / Inclusionary Housing / Affordable Housing Ordinance.

In California Building Industry Association v. City of San Jose (2015), the California Supreme Court affirmed the court of appeal’s ruling and upheld the City of San Jose’s inclusionary housing ordinance.  In order to address state policies and goals intended to encourage more affordable housing units, hundreds of  California municipalities have adopted what are commonly referred to as “inclusionary zoning”,  “inclusionary housing” or “affordable housing” programs, which typically require or encourage developers to set aside a certain percentage of housing units in new or rehabilitated projects for low- and moderate-income residents.

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Miles J. Dolinger
Attorney at Law

314 Capitola Avenue Capitola, CA 95010
Phone: (831) 477-9193
FAX: (831) 477-9196
miles@dolingerlaw.com

“I would definitely go with Mr. Dolinger again, and I would recommend him in a heartbeat to anyone who is looking for representation. He knows his business and he is very good at it.”

Richard. February 8, 2015
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