Did Senate Bill 8 impact the definition of “housing development project” under the Housing Accountability Act?

by | Mar 23, 2022 | Land Use, Permits and Appeals |

The California Legislature passed Senate Bill 8 (“SB 8”) in 2021, which was intended to add further protections to California’s Planning and Zoning laws to increase the supply of housing.  While SB 8 accomplished that by clarifying and strengthening various provisions of those laws, it also potentially impacted the question of whether single-family homes are subject to the protections of the California Housing Accountability Act. The Housing Accountability Act, a legislative attempt to ameliorate California’s housing crisis, provides broad protections to development applications that fall under its definition of a “housing development project,” which includes “residential units.”  Whether the term “residential units” includes an individual house, however, has been the recent subject of much debate.  Why is this important?  Because more than two-thirds of California’s residential land is zoned for single-family homes, and if applications for individual homes are excluded from the protections of the Housing Accountability Act, the purpose of that Act—to substantially increase housing production—is severely thwarted.  The enactment of SB 8 brought that legislative disagreement to light, and resulted in some conflicting language, potentially muddying those waters further.

SB 8 followed the passage of the 2019 Housing Crisis Act. The Housing Crisis Act added the “five-hearing rule,” Gov. Code section 65905.5, to California’s Planning and Zoning Laws.  This statute generally prohibits an agency from conducting more than five hearings on an application for a “housing development project,” as defined under the Housing Accountability Act.  That is, under the five-hearing rule, development applications for residential units can only be subject to a maximum of five government hearings.  But what about applications for individual houses?

On the one hand, SB 8 appeared to answer that question.  SB 8 amended the five-hearing rule, but continued to incorporate the Housing Accountability Act’s definition of “housing development project.”  It also clarified that the definition of a housing development project includes a “single dwelling unit,” i.e. a single-family home.  SB 8 further provided that the clarification was a declaration of existing law, and not a change in that law.  In other words, SB 8 appears to confirm that the definition of “housing development project,” as is set forth in the Housing Accountability Act and incorporated in the five-hearing rule, includes single-family homes within its scope.

On the other hand, SB 8 also inserted conflicting language in the five-hearing rule’s clarification.   It stated that the clarification “shall not affect the interpretation” of the Housing Accountability Act’s definition of a “housing development project.”  The problem is that no other definition of housing development project exists outside the Housing Accountability Act.  That is, there is only one definition that this clarification could possibly apply to: the one in the Housing Accountability Act.

So, what now? The question regarding the impact that SB 8 had on the Housing Accountability Act’s definition of “housing development project” was raised recently by the California Court of Appeal, First District, in Reznitskiy v. County of Marin, Case No. A161813.  In response, ZFP advances its clients’ argument that SB 8’s clarification that single-family homes are included with the definition of “housing development project” necessarily applies to that definition in the Housing Accountability Act, because no other definition exists.  This case is currently pending oral argument and is hoped to result in the ultimate resolution of whether single-family homes receive the Housing Accountability Act’s protections.

The attorneys at Zacks, Freedman & Patterson can advise you on the Housing Accountability Act or any other land use matter. Contact us to request a consultation.