Amara L. Morrison is a director at Fennemore Wendel with a deep understanding from every angle of land use, real estate and municipal law. With more than 25 years of experience as an assistant city attorney and a decade working in the private sector, she’s worked closely with mixed use, residential, commercial, industrial and hotel developers, public agencies, and individuals and community groups on everything from land use approvals and subdivisions to capital improvement projects. She has extensive experience in all aspects of land use law, including compliance with the California Environmental Quality Act (CEQA), the Permit Streamlining Act, planning and zoning law, the Subdivision Map Act and affordable housing laws, including density bonus and SB 35.Prior to private practice, Morrison served as assistant city attorney for two Bay Area cities, where she advised officials and staff on matters including the California Public Records Act, the Ralph M. Brown Act, public finance and contracts, solid waste, risk management and conflicts of interest, First Amendment and redevelopment. She currently serves as general counsel to Bay Area transportation agencies.We spoke with Morrison for an update on the Bay Area builder’s remedy, which removes local zoning control from jurisdictions not in compliance with California housing law to adopt a state-approved housing element by Jan. 31 of this year.Assembly Bill 1893, proposed legislation that would create new parameters for the builder’s remedy? Can you briefly summarize those? Yes. Assembly member Buffy Wicks introduced AB 1893 into this year’s legislative line-up, which seeks to: 1) reduce the level of affordability of units in order to qualify for builder’s remedy applications from the current 20% lower income households to 13%, except for projects with less than 10 units which do not have to satisfy any affordability requirements; 2) sets density parameters in an effort to curb projects that are, arguably, way out-of-scale with their surroundings; and 3) helps establish objective zoning standards if none exist for the zoning district in which the builder’s remedy project is proposed.The bill, if passed, will also preclude a city or county from conditioning a project through design review standards in such a way as to disapprove it. It also makes clear that a builder’s remedy application is still eligible for state density bonus law, which is a powerful tool for developers to seek waivers or modifications of development/zoning standards.You reported last April that our public broadcasting station, KQED cited a survey that of more than 30 Bay Area cities only five have received builder’s remedy applications: San Jose, Mountain View, Los Altos Hills, Fairfax and Brentwood. Have any builder’s remedy applications moved ahead in the Bay Area or have local governments just found other ways to block developments they don’t want?It’s been difficult, frankly, to get a handle on just how many builder’s remedy projects have actually been approved in Bay Area jurisdictions. The state’s Housing and Community Development, which is typically a good resource for this type of information, does not keep a running total of the number of applications and number of approved projects but, anecdotally, we are hearing about builder’s remedy projects that are being approved. These are generally smaller projects that are exempt from CEQA that can be processed more quickly by local jurisdictions. Builder’s remedy applications are still subject to CEQA and, therefore, take just as long as traditional housing development applications for a local agency to review and approve. Because developers have only just started relying upon Builder’s Remedy as an option due to cities not having approved housing elements in the 2022-2023 cycle, it remains to be seen how many of these approved projects will be challenged on classic CEQA grounds.In our experience, most cities have been cooperative in accepting builder’s remedy applications, provided the developer doesn’t try to argue CEQA doesn’t apply. But the experiences can really vary from city to city so the more builder’s remedy applications are filed in those cities without HCD-certified housing elements, the more push-back we may see.Can you give us an update on litigation surrounding housing? Has it risen over the last year and helped or further fueled the housing crisis in California? As of this April, we now have three trial court decisions related to builder’s remedy applications and cities’ handling of such applications. While the cases are all located in Los Angeles County, they do signal a trend toward supporting such applications. In La Cañada Flintridge and Los Angeles, both cities rejected builder’s remedy applications, arguing the law did not apply to them because the cities had “self-certified” their housing elements. But, there is no provision for self-certification in the Housing Accountability Act and the Los Angeles County trial court validated this, ruling that a city cannot “backdate its housing element compliance to circumvent the builder’s remedy.”Have employers seen any benefits from the new housing development laws in the last year?Likely not and that’s because approved housing projects are still subject to CEQA challenges, which is the traditional means NIMBYs have used to slow or kill a project. The California Center for Jobs and the Economy published a report in 2020 which concluded that anti-housing CEQA suits result in challenges to 50% of the state’s annual housing production. That report was published in 2020 and I doubt the statistics are any better years later. Until the legislature is willing to undertake meaningful reform to CEQA, it will continue to be used to deny housing opportunities to many of those in this state who need it the most…the missing middle-income wage earners and lower-income folks.Learn more about Fennemore and its offices in Arizona, California, Colorado Nevada, Texas and Washington at FennemoreLaw.com.
See the full article on Arizona zoning regulations, or, read more Arizona real estate investing news. It’s up to you!