Chapter 17.026 — MINISTERIAL APPROVALS FOR QUALIFYING HOUSING DEVELOPMENTS

Section

17.026.010 Title 17.026.020 Purpose 17.026.030 Definitions 17.026.040 Applicability 17.026.050 Eligible projects

17.026.060 Application requirements; review and approval

The provisions of this chapter shall be known as the “Streamlined Ministerial Approval Regulations”.

(Ord. 885, passed 11-1-2023)

The purpose of this chapter is to specify how the Town will implement ministerial review procedures required for qualifying housing projects, including mixed-use projects, that comply with Cal. Gov't Code § 65913.4 (“State Streamlined Ministerial Approval Process”). These procedures are intended to facilitate the development of affordable housing consistent with the goals, policies, and programs of the General Plan.

(Ord. 885, passed 11-1-2023)

Terms defined in Cal. Gov't Code § 65913.4 shall apply to this chapter and shall control in the event of a conflict between

definitions in this title and definitions in Cal. Gov't Code § 65913.4.

(Ord. 885, passed 11-1-2023)

This chapter applies to housing development projects, including mixed use projects, applying for approval under Cal. Gov't Code § 65913.4 and replaces the town's procedures for reviewing discretionary applications, including design review regulations.

(Ord. 885, passed 11-1-2023)

A housing development, including a mixed-use project, is eligible for streamlined ministerial review if it:

(A) Qualifies for streamlined ministerial approval under Cal. Gov't Code § 65913.4; and

(B) Is a multi-family housing development that contains two or more units on an infill site that is zoned for residential use or residential mixed use;

(C) Is not located on a site with wetlands or a site that contains habitat for protected species or land that has been identified for conservation in a natural community conservation plan or habitat conservation plan adopted by the town;

(D) Is not located on a site with areas of special flood hazards which are established by Chapter 17.068, Floodplains unless the development has received a no-rise certification in accord with § 60.3(d)(3) of Title 44 or the Code of Federal Regulations and all requirements of Chapter 17.068 have been met;

(E) Is not located within a delineated earthquake fault zone shown on maps published by the State Geologist, unless the development complies with applicable seismic protection building code standards adopted by the California Building Standards Commission as modified by the town's building code.

(F) Is not located within a high or very high fire hazard severity zone, as determined by the California Department of Forestry and Fire Protection unless the site has been excluded from the specified hazard zones by the town and will be subject to fire mitigation measures to protect the development.

• (G) Is not on land subject to a conservation easement;

(H) Is not located on a site that would require the demolition of the following types of housing:

(1) Housing that is subject to a recorded covenant, ordinance, or law that restricts rents to levels affordable to persons and families of moderate, low, or very low income.

(2) Housing that is subject to any form of rent or price control through a public entity's valid exercise of its police power.

• (3) Housing that has been occupied by tenants within the past ten years.

(4) Housing that is occupied by tenants and units at the property are, or were, subsequently offered for sale to the general public by the subdivider or subsequent owner of the property.

(I) Is on a site previously used for housing that was occupied by tenants that was demolished within the preceding ten years;

(J) Does not require the demolition of a historic structure that was placed on a national, state, or local historic register;

• (K) Does not require an exception, modification or any other discretionary entitlement;

(L) Complies with the town's objective zoning standards, objective subdivision standards, and objective design standards, excluding any additional density or other concessions, incentives, or waivers of standards requested under Chapter 17.050, Affordable Housing Density Bonus.

(Ord. 885, passed 11-1-2023)

(A) An applicant shall file a notice of intent to submit an application in the form of a Preliminary Application that includes all of the information required by Cal. Gov't Code § 65941.1 as that section read on January 1, 2020. Complete building permit applications for the project shall be submitted concurrently with the preliminary application. Planning staff shall provide templates for preliminary applications to applicants on request and shall be available on the town's website. The preliminary application shall be accompanied by the required fee as established by the town.

(B) Within 180 calendar days after filing a preliminary application, an applicant shall submit a formal application for ministerial review, provided scoping consultation has concluded consistent with division (C), below.

(C) Scoping consultation.

(1) Upon receipt of the preliminary application, the town shall contact the Native American Heritage Commission for assistance in identifying any California Native American tribe that should be notified. The Planning Director shall provide a formal notice of the applicant's intent to submit a formal application to each required California Native American tribe within 30

days of preliminary application submittal. The formal notice shall be consistent with Cal. Gov't Code § 65913.4(b).

(2) If within 30 days of receipt of the formal notice, any California Native American tribe that was formally noticed accepts the invitation to engage in scoping consultation, the Planning Director shall commence scoping consultation within 30 days of receiving that response.

(3) The scoping consultation shall be conducted consistent with Cal. Gov't Code § 65913.4(b). If, after scoping consultation is concluded, a development is not eligible for a streamlined ministerial approval, the Planning Director shall provide written documentation as required by Cal. Gov't Code § 65913.4(b) to the applicant and any California Native American tribe that is a party to that scoping consultation.

(4) Tribal consultation concludes either 1) upon documentation of an enforceable agreement regarding the treatment of tribal resources at the project site or 2) one or more parties to the consultation, acting in good faith and after a reasonable effort, conclude that a mutual agreement cannot be achieved.

(D) If the development remains eligible to apply streamlined ministerial approval after scoping consultation has concluded, an applicant may file a formal application. Only the items necessary to determine compliance with the provisions contained in Cal. Gov't Code § 65913.4(a) and with any applicable objective standards shall be required.

(E) The review of a formal application shall be done by the Planning Director to determine if the application complies with all of the provisions contained in this chapter, Cal. Gov't Code § 65913.4(a), and applicable objective standards and shall occur within the following timeframes:

(1) Within 90 calendar days of formal application submittal for applications that include 150 or fewer housing units.

(2) Within 180 calendar days of formal application submittal for applications that include 151 or more housing units.

(F) If the formal application does not demonstrate compliance with all of the provisions contained in Cal. Gov't Code § 65913.4(a) and all applicable objective standards, the Planning Director shall provide the applicant with written documentation of which standards the development conflicts with and an explanation of the reasons the development conflicts with each standard. If the application can be brought into compliance with minor changes to the proposal (e.g., changes in building dimensions that are less than ten percent), the Planning Director may allow the development proponent to correct any deficiencies within the timeframes for determining project consistency specified in division (E)(2) above. For major changes, a new application will be required.

(G) The Planning Director is the review authority for ministerial approvals for qualifying housing developments. The Planning Director shall approve a formal application upon finding that all of the requirements of Cal. Gov't Code § 65913.4 and this chapter have been met. The Planning Director may impose reasonable conditions of approval, provided those conditions of approval are objective and broadly applicable to development within the town.

(H) Any necessary subsequent permits shall be issued on a ministerial basis subject to applicable objective standards. If a public improvement is necessary to implement a development subject to this chapter, and that public improvement is located on land owned by the town, the town shall process any approvals needed as required by Cal. Gov't Code § 65913.4(h).

(I) Post-Approval Modifications .

(1) An applicant or the Planning Director may request a modification to an approved development if that request is made prior to the issuance of the final building permit.

(2) The town shall only apply objective standards in effect when the original application was submitted, except that objective standards adopted after the date of original submittal may be applied in any of the following instances:

(a) The total number of residential units or total square footage of construction changes by 15 percent or more; or

(b) The total number of residential units or total square footage of construction changes by five percent or more, and it is necessary to subject the development to an objective standard beyond those in effect when the application was submitted in order to mitigate or avoid a specific adverse impact upon public health of safety, for which there is no feasible alternative method to satisfactorily mitigate or avoid; or

(c) Objective building standards contained in the California Building Code, as adopted by the town, may be applied to all modifications.

(3) The Planning Director shall determine if the modification is consistent with applicable objective standards and issue a decision on the applicant's modification request within 60 days after submittal.

(4) An application approved consistent with this chapter shall remain valid for three years; however, an application approval shall not expire if the development includes public investment in housing affordability, beyond tax credits, where 50 percent of the units are affordable to households making at or below 80 percent of the area median income consistent with Cal. Gov't Code § 65913.4(e).

(5) At the discretion of the Director, a one-year extension may be granted consistent with Cal. Gov't Code § 65913.4(e)

(Ord. 885, passed 11-1-2023)

CHAPTER 17.027: PROCEDURES FOR SB 330

APPLICATIONS FOR HOUSING DEVELOPMENTS

Section

17.027.010 Title 17.027.020 Purpose 17.027.030 Applicability 17.027.040 Definitions 17.027.050 Application filing 17.027.060 Review timeframes 17.027.070 Compliance determination 17.027.080 Findings and decision 17.027.090 Post-decision procedures

The provisions of this chapter shall be known as the “Procedures for SB 330 Applications for Housing Developments.”

(Ord. 885, passed 11-1-2023)

The purpose of this chapter is to specify how the town will implement streamlined review procedures and establish vested rights for qualifying housing developments, including mixed-use projects, pursuant to Senate Bill 330 (SB 330), the Housing Crisis Act of 2019.

(Ord. 885, passed 11-1-2023)

(A) This section applies to qualifying housing development projects as defined by Cal. Gov't Code § 65589.5(h)(2), including multi-family development, mixed use projects with at least two-thirds of the building area devoted to residential uses, and/or transitional and supportive housing.

(B) This section shall remain in effect for the same time period as provisions contained in the Cal. Gov't Code § 65589.5 (Housing Accountability Act). Any provisions that are not extended by the State Legislature shall be repealed as of the date those provisions in the Housing Accountability Act are deemed null and void.

(C) This section provides additional procedures that shall be followed for qualifying housing development projects. If conflicts occur between other permitting and approval procedures in this title and the procedures of this section, this section shall control.

(Ord. 885, passed 11-1-2023)

Terms defined in Cal. Gov't. Code § 65589.5 shall apply to this section and shall control in the event of a conflict between definitions in this title and definitions in Cal. Gov't. Code § 65589.5.

(Ord. 885, passed 11-1-2023)

(A) To receive the vested rights and benefit from the streamlining established for SB 330 applications, the applicant may initiate the process by filing a preliminary application consistent with Government Code § 65941.1.

(1) A preliminary application shall be filed on the standardized form adopted by the California Department of Housing and Community Development unless the Planning Commission has adopted a form for use for SB330 applications.

(2) Within 180 calendar days after submitting a preliminary application, an applicant shall submit a full application for the housing development.

(B) An applicant may file a full application for a zoning permit for a qualifying housing development without filing a preliminary application. The full application shall be filed on a form provided by the Town of Fairfax accompanied by the required fee. Complete building permit applications for a qualifying housing project shall be submitted concurrently with the full application.

(C) Compliance review.

(1) Scope of review . housing development for which a preliminary application was submitted shall only be subject to the ordinances, policies, and objective standards adopted and in effect when the preliminary application is submitted, except in the following circumstances:

(a) A fee, charge, or other monetary exaction increase resulting from an automatic annual adjustment based on an independently published cost index that is referenced in the ordinance or resolution establishing the fee or monetary exaction.

(b) A preponderance of the evidence in the record establishes that subjecting the housing development to an ordinance, policy, or standard beyond those in effect when the preliminary application was submitted is necessary to mitigate or avoid a specific, adverse impact upon the public health or safety, and there is no feasible alternative method to satisfactorily mitigate or avoid the adverse impact.

(c) Subjecting the housing development to an ordinance, policy, standard, or any other measure, beyond those in effect when the preliminary application was submitted is necessary to avoid or substantially lessen an impact consistent with the California Environmental Quality Act.

(d) The housing development has not commenced construction within 2.5 years following the date of the housing development's final approval (as defined in Cal. Gov't. Code § 65589.5(o)(1)(D)).

(e) The number of residential units or square footage of construction proposed changes by 20 percent or more, exclusive of any increase resulting from a density bonus, incentive, concession, waiver, or similar provision.

(2) When no preliminary application was submitted, a housing development shall be subject to objective standards in effect when the full application was deemed complete.

(Ord. 885, passed 11-1-2023)

(A) Full applications for housing development containing 150 or fewer units shall be reviewed for compliance with applicable objective standards within 30 calendar days of being deemed complete.

(B) Full applications for housing development containing more than 150 units shall be reviewed for compliance with applicable objective standards within 60 calendar days of being deemed complete.

(C) The Planning Director shall be the Review Authority consistent with the Town of Fairfax's permitting procedures for the full application.

(Ord. 885, passed 11-1-2023)

(A) The Review Authority shall identify the specific objective standard(s) that the project does not comply with and provide an explanation of the reason(s) why the housing development is considered to be inconsistent or non-compliant with identified provisions and shall provide the written determination to the applicant.

(B) A housing development is considered in compliance with this title, and shall not require a zoning map amendment, if the housing development complies with objective general plan standards and land use designations, but the zoning for the housing development site is inconsistent with the general plan.

(C) If a housing development complies with all of the applicable objective zoning, design, and subdivision standards, the town shall not conduct more than five public hearings (including continuances), workshops, study sessions, or similar meetings after the full application is deemed complete in connection with the approval of the housing development. This limitation is established by Cal. Gov't. Code § 65905.5. Meetings required by CEQA are exempt from the limit.

(Ord. 885, passed 11-1-2023)

(A) If the proposed housing development complies with applicable objective general plan, zoning, design and subdivision standards, the Planning Commission may only deny the housing development or conditionally approve the housing development at a lower density if it makes written findings supported by a preponderance of the evidence in the record that:

(1) The housing development would have a specific, adverse impact upon the public health or safety unless the housing development is denied or conditionally approved at a lower density. A “specific, adverse impact” means a “significant, quantifiable, direct, and unavoidable impact, based on identified written public health or safety standards, policies, or conditions as they existed on the date that the project was deemed complete”; and

(2) There is no feasible method to satisfactorily mitigate or avoid the adverse impact other than the denial of the housing development or conditional approval of the housing development at a lower density.

(B) If the housing development includes 20 percent of units affordable to very low or low-income households, 100 percent of units affordable or

moderate- or middle-income households, or an emergency shelter, the Planning Commission shall approve the housing

development unless the Commission makes written findings supported by a preponderance of the evidence in the record, as to at least one of the findings in Cal. Gov't. Code § 65589.5(d).

(C) The Planning Director shall approve or deny the housing development within the applicable time periods established in Cal. Gov't. Code § 65950 and related sections.

(Ord. 885, passed 11-1-2023)

The town's post-decision procedures for the required permit based on the full application shall be followed provided those procedures do not conflict with Cal. Gov't. Code §65589.5.

(Ord. 885, passed 11-1-2023)