AB 831 and 168: Clarifying SB 35’s streamlining provisions for infill housing projects

Assembly Bills 831 and 168 amend Senate Bill 35, which was adopted in 2017 to streamline the approval process for infill housing projects. As urgency legislation, the amendments to SB 35 were effective immediately.

Some of the changes to SB 35 are in response to the 2019 case Ruegg & Ellsworth v. City of Berkeley, in which the Alameda County Superior Court ruled that a mixed-use project in Berkeley was not eligible for SB 35 streamlining. The court found that the project's destruction of a shellmound asserted to be located on the site was tantamount to the demolition of an historic structure, making the project ineligible under SB 35. The court also found that the two-thirds residential requirement in SB 35 is intended to apply to the site on which the development project is located, rather than to the development project itself.

The primary changes to address these rulings and other key changes made by AB 831 and AB 168 include:

• Requiring that a developer of an SB 35 project submit a notice of intent in the form of a preliminary application, and providing that the development application must comply with objective standards in effect at the earlier of the notice of intent or the application;

• Requiring that the local agency engage in scoping consultation with Native American tribes, which can render a project ineligible for SB 35 streamlining if an agreement with tribes regarding treatment of tribal cultural resources cannot be reached;

• Clarifying that a development subject to the streamlined, ministerial approval process created by SB 35, and the site on which it is located, must be zoned for residential use or mixed-use development, and at least two-thirds of the square footage of the development (as opposed to the site) must be designated for residential use;

• Requiring a local government to approve a development proponent's proposed modification to an SB 35 project if the modification is consistent with the objective planning standards that were in effect when the original development application was submitted, provided that a local government may apply new standards if (i) the number of units or square footage increases by more than 15%, or (ii) number of units or square footage increases by more than 5% and the new standard is necessary to avoid a specific, adverse public health/safety impact; and

• Prohibiting a local government from exercising its discretion over public improvements (including bike lanes, sidewalks, etc.) necessary to implement an SB 35 project in a manner that would inhibit, chill, or preclude the project, and requiring the local government to review such public improvement based upon the objective planning standards that were in effect when the original project application was submitted.