AB 1561: An 18-month extension for housing entitlements

Assembly Bill 1561 addresses the state's housing woes in the context of two other crises that have risen to the fore this year: racial injustice and COVID-19. The legislation was sponsored by the California Building Industry Association and supported by the California Association of Realtors, and took effect Jan. 1.

AB 1561 provides an automatic 18-month extension for certain housing entitlements that were issued prior to March 4, 2020, and are set to expire prior to Dec. 31, 2021. Recognizing the barriers to housing development created by the COVID-19 crisis, the 18-month extension applies to a broad range of "housing entitlements" issued by all local governments (including charter cities), including legislative, adjudicative and administrative approvals and permits, as well as vested rights associated with those permits. The definition of "housing entitlement" is extremely broad, and is intended to apply to a wide range of entitlements. The automatic extension does not apply to: development agreements; certain development applications; and if the local jurisdiction has already enacted a prior, at least an 18-month extension before the effective date of the bill (i.e., AB 1561 does not allow for "double-counting" of automatic extensions).

The bill also accounts for tolling and an extension. First, in the event of a legal challenge to a housing entitlement, the 18-month extension is tolled. Second, a 30-day extension will apply to the deadline for a Native American tribe to request consultation under CEQA for any housing development project application deemed complete from March 4, 2020, to Dec. 31, 2021.

With respect to emergency shelters, the bill makes minor amendments to previous law regarding emergency shelters. The amendments now allow a local government to identify nonresidential zones where emergency shelters are permitted as a use "by right" if the local government can demonstrate that it is not possible or feasible to site them in a residential zone.

The bill authorizes, but does not require, California's Department of Housing and Community Development to analyze constraints on housing development for protected classes under California's Unruh Civil Rights Act, when evaluating the sufficiency of a general plan's housing element. An earlier version of the bill would have required local agencies to undertake this analysis, but subsequent amendments deleted this mandate and instead sought to encourage local agencies to consider civil rights-related housing constraints. As approved, the California department is not authorized to add the civil rights component to its analysis of housing elements until Jan. 1, 2024.