Sites Used in Previous Planning Periods Housing Elements

If the element includes sites identified to accommodate the low- and very low-income RHNA that was used in prior planning period’s housing element (for non-vacant sites) or two or more consecutive planning periods (for vacant sites), then the element must include a program in the housing element requiring rezoning within three years of the beginning of the planning period to allow residential use by right at specified densities (see Zoning to Accommodate the Development of Housing Affordable to Lower-income Households) for housing developments in which at least 20 percent of the units are affordable to lower income households.

Definition of By-Right

For the purposes of housing element law and in accordance with Chapter 724, by-right shall mean the local government’s review shall not require:

• A conditional-use permit
• A planned unit development permit
• Other discretionary, local-government review or approval that would constitute a “project” as defined in Section 21100 of the Public Resources Code.

This provision does not preclude local planning agencies from imposing design review standards. However, the review and approval process must remain ministerial and the design review must not constitute a “project” as defined in the Section 21100 of the Public Resources Code. For example, a hearing officer (e.g., zoning administrator) or other hearing body (e.g., planning commission) can review the design merits of a project and call for a project proponent to make design-related modifications, but cannot deliberate the project’s merits or exercise judgment to reject or deny the “residential use” itself.

Program and policy requiring replacement of existing affordable units

The housing element must include a program in the housing element and policy independent of the housing element requiring the replacement of units affordable to the same or lower income level as a condition of any development on a nonvacant site consistent with those requirements set forth in Density Bonus Law (Government Code section 65915(c)(3).) Replacement requirements shall be required for sites identified in the inventory that currently have residential uses, or within the past five years have had residential uses that have been vacated or demolished, and:

• Was subject to a recorded covenant, ordinance, or law that restricts rents to levels affordable to persons and families of low or very low-income, or
• Subject to any other form of rent or price control through a public entity’s valid exercise of its police power, or
• Occupied by low or very low-income households

For the purpose of this program “previous five years” is based on the date the application for development was submitted

Adequate-Sites Program Timing

A locality’s ability to accommodate needed housing during the planning period requires designating appropriate zoning as early as possible. The most direct procedure is for the locality to undertake rezoning when the housing element is adopted. The program must make provision for sites that will be available soon enough to reasonably permit development during the planning period. For example, rezoning actions should be completed within the first year to two years.

Policy and Program Options

Strategies to Increase Residential Capacity

The following approaches have been used by localities to increase their total residential development capacity:

• Up-zone existing residential areas at appropriate densities to facilitate development of housing.
• Increase maximum allowable residential densities in existing residential, commercial, and mixed-use zones and modify development standards, such as height limitations to ensure maximum density can be achieved.
• Pre-zone and annex land suitable for residential use.
• Establish minimum densities — Designate minimum densities of development to ensure that existing available land is not underutilized.
• Allow and encourage mixed-use zoning — Permit housing in certain nonresidential zones either as part of a mixed-use project or as a standalone residential use.
• Rezone underutilized land from nonresidential to residential to expand the supply of available residential land.
• Institute flexible zoning — Allow various residential uses within existing nonresidential zones without requiring rezoning or conditional approvals.
• Redevelop and/or recycle underutilized existing land to more intensive uses.
• Convert obsolete, older public/institutional/commercial/industrial buildings to residential use through adaptive reuse and/or historic preservation.
• Over-zone — Create a surplus of land for residential development during the current planning period of at least 20 percent more than the locality’s share of the regional housing need. Over-zoning compensates for urban land left vacant due to ownership and development constraints and creates a real surplus. A sufficient supply of land beyond the time frame of the housing element helps prevent land shortages from bidding up land costs.
• Allow and promote small- and irregular-size lot development.
• Consolidate lots — Facilitate combining small residential lots into larger lots to accommodate higher-density development.
• Increase height limitations — At a minimum, allow three stories in multifamily zones.
• Increase Floor Area Ratios — Allow for larger buildings on smaller lots and/or more units per lot by reducing the floor area ratio (total lot area divided by the total building area).

Appropriate Development Standards

Appropriate zoning and development standards facilitate the location, siting, capacity, and price of residential development in order to meet identified housing needs, particularly new construction for lower-income households. These include establishing minimum densities and minimum floor areas; increasing maximum lot coverage; allowing minimum building-, rear-, and side-yard setbacks; reducing parking and amenities requirements; and other controls such as streamlined architectural and design review standards.

State zoning law requires localities to zone sufficient vacant land for residential use with appropriate standards to meet the housing needs as identified in the general plan. Appropriate standards are requirements that contribute significantly to the economic feasibility of producing housing at the lowest possible cost.

In regulating subdivisions, Government Code Section 65913.2 provides that a local government may not impose design criteria for the purpose of rendering an affordable housing development infeasible. A community may not impose standards and criteria for public improvements (e.g. streets, sewers, schools, or parks) that exceed those imposed on other developments in similar zones. Additionally, the effect of a community’s ordinances and actions on accommodating the housing needs of the region must be considered.

Encouraging Development of Underutilized Sites for Housing

Identification of underutilized land and opportunities for mixed uses must be accompanied by programs that encourage their development and/or reuse. Such programs could include actions to initiate any necessary rezoning, establish appropriate regulatory and/or financial incentives, relax development standards (design criteria, parking, building height, setback requirements, etc.), support more compact and higher-density residential developments, and facilitate the new construction of multifamily rental and owner-occupied units. Such developments are often located in urban core areas, adjacent to existing neighborhoods, close to transit centers, and near established businesses and services.

Strategies to Encourage Adequate Sites for a Variety of Housing Types

While the sites inventory may identify sufficient sites to accommodate the locality’s total share of the regional housing need, the element must also include policies and programs to promote development on identified sties. Localities have developed various strategies and development incentives to encourage a variety of housing types for all income levels, including:

• Up-zone existing neighborhoods in areas of opportunity or in high quality neighborhood transit areas at appropriate densities to facilitate development of housing.
• Increase maximum allowable residential densities in existing residential, commercial, and mixed-use zones and modify development standards, such as height limitations to ensure maximum density can be achieved.
• Establish minimum densities — Designate minimum densities of development to ensure that existing available land is not underutilized.
• Rezone underutilized land from nonresidential to residential to expand the supply of available residential land.
• Institute flexible zoning — Allow various residential uses within existing nonresidential zones without requiring rezoning or conditional approvals.
• Redevelop and/or recycle underutilized existing land to more intensive uses.
• Convert obsolete, older public/institutional/commercial/industrial buildings to residential use through adaptive reuse and/or historic preservation.
• Over-zone — Create a surplus of land for residential development during the current planning period of at least 20 percent more than the locality’s share of the regional housing need. Over-zoning compensates for urban land left vacant due to ownership and development constraints and creates a real surplus. A sufficient supply of land beyond the time frame of the housing element helps prevent land shortages from bidding up land costs.
• Zoning sites for mobilehomes and mobilehome park use.
• Promoting multifamily rental housing built above ground-floor commercial uses (referred to as “mixed-use” development) by permitting apartment uses in office/commercial areas (allows office space revenue to offset rental costs and act as an internal project subsidy) or as a standalone residential use.
• Compiling and maintaining an inventory of public surplus lands and land owned by other entities (such as school districts, public utilities, etc.) to identify sites suitable for development of low- and moderate-income housing. Facilitating the acquisition of surplus public lands and other identified land for affordable housing development.
• Zoning for housing types typically occupied by renter households.
• Ensuring zoning encourages single-room occupancy units and establishing ordinances with written and objective standards.
• Offering development incentives (e.g., land write-downs, fee waivers, and below market-rate financing) negotiated through developer agreements to increase multifamily densities in selected areas.
• Reducing multifamily development standards (e.g. number of required covered parking spaces, setback and building height requirements, etc.).
• Establishing ordinances or guidelines to promote small-lot and irregular-size lot development
• Establishing “no net loss” policies and procedures to rezone equal amounts of land to replace any residential land used for other than its intended residential use.